VOLUME 01 • ISSUE 03 • NOVEMBER 2016

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VOLUME 01 • ISSUE 03 • NOVEMBER 2016

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NOVEMBER 2016

VOLUME 01

ISSUE 03

ISSN 2455-9822 (ONLINE)

ADVISORY BODY
DR. SHARAFAT ALI

MRS. DEVIKA RANA

(PRINCIPAL, SIDDHARTHA LAW COLLEGE, DEHRDUN)

(ASSISTANT PROFESSOR, SIDDHARTHA LAW COLLEGE,
DEHRADUN)

MRS. REETA RAUTELA
(ASSISTANT PROFESSOR, SIDDHARTHA LAW COLLEGE,
DEHRADUN)

MR. MOHIT NEGI
(ADVOCATE, DEHRADUN DISTRICT COURT)

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VOLUME 01 • ISSUE 03 • NOVEMBER 2016

Cite this issue as 03 TPJ (2016)
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VOLUME 01 • ISSUE 03 • NOVEMBER 2016

IN • THIS • ISSUE
Vision behind the Journal
Pg. 06
Message from the Members of the Advisory body
Pg. 07
Message from the Desk of the Editor-in-chief

Pg. 08

•JOURNAL
1. THE ROAD FROM CODIFICATION TO IMPLEMENTATION: A CRITICAL VIEW OF VISHAKA GUIDELINES
TO THE PRESENT LAW - ANNIE MAMPILLY
CITE AS: D1 03 TPJ (2016)

Pg.09

2. NEED TO REFORM LAWS ON PROSTITUTION IN INDIA - AYUSHI KUSHWAHA
CITE AS: D2 03 TPJ (2016)

Pg.16

3. INDIAN SCENARIO: ARBITRATION AS DISPUTE RESOLUTION - GAURI SHRIKHANDE
CITE AS: D3 03 TPJ (2016)

Pg.28

4. EMPOWERING SANTHARA THROUGH LAW- NAYAN JAIN AND HARSHITA TOMAR
CITE AS: D4 03 TPJ (2016)

Pg.37

5. ACCESS TO JUSTICE- PARIDHI AGAR
CITE AS: D5 03 TPJ (2016)

Pg.51

6. ARMED FORCES (SPECIAL POWERS) ACT- PHILIP JONATHAN P
CITE AS: D6 03 TPJ (2016)

Pg.63

7. PSYCHOPATHY: WHETHER THE CRIMINAL LAW RESPONSE TO PSYCHOPATHY IS JUST AND
PRACTICALLY SOUND? - PRIYAMVADA PRIYADARSHINI AND NAMAN VERMA
CITE AS: D7 03 TPJ (2016)

Pg.69

8. THE EMERGENT PARADOX: A BRIEF COMMENTARY ON PUBLIC HEALTH (WITH SPECIFIC
REFERENCE TO UNDER FIVE MORTALITY RATIOS) IN ODISHA- RADHIKA KRISHNA
CITE AS: D8 03 TPJ (2016)

Pg.82

9. BEING SELECTIVELY SECULAR: A REVIEW OF STATE INTERFERENCE IN PERSONAL AND RELIGIOUS
LAWS. - ANAND RAJ
CITE AS: D9 03 TPJ (2016)

Pg.91

10. UNIFORM CIVIL CODE- RISHEE RHUDRA AND SHUBHAM APARAJITA
CITE AS: D10 03 TPJ (2016)

Pg.101

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VOLUME 01 • ISSUE 03 • NOVEMBER 2016

11. THE ROAD TO A GLOBAL LAW – INDIAN DESIGN LAWS- MANIK SETHI AND SMEEKSHA PANDEY
CITE AS: D11 03 TPJ (2016)

Pg.111

12. JUDICAL REVIEW IN INDIA & UNITED KINGDOM AND THEIR LIMITATIONS- SHIVAM SINGHAL
CITE AS: D12 03 TPJ (2016)

Pg.120

13. SHOULD THERE BE MARKETS IN HUMAN ORGANS? - TANYA GOYAL AND GARVIT GUPTA
CITE AS: D13 03 TPJ (2016)

Pg.131

14. PLIGHT OF REFUGEES: REMISSNESS OF INDIA; NEED FOR A NEW LEGISLATION- TULIP JOSHI
AND JUHI BHUTANI
CITE AS: D14 03 TPJ (2016)

Pg.144

15. SOVEREIGNTY OF NATIONS UNDER THE THREAT OF DRONE STRIKES- VEENA RAGHAV
CITE AS: D15 03 TPJ (2016)

Pg.157

16. GANESH FESTIVAL: POWERS OF POLICE AND SOLUTION TO POLLUTION- ABHINANDAN PANDEY
CITE AS: D16 03 TPJ (2016)

Pg.170

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VOLUME 01 • ISSUE 03 • NOVEMBER 2016

• VISION BEHIND THE JOURNAL
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VOLUME 01 • ISSUE 03 • NOVEMBER 2016

• MESSAGE FROM THE MEMBERS OF THE ADVISORY BODY
We feel honored and deeply privileged to say that the third issue in volume one of The Penstand
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DR. SHARAFAT ALI
(PRINCIPAL, SIDDHARTHA LAW COLLEGE, DEHRADUN)
MRS. REETA RAUTELA
(ASSISTANT PROFESSOR, SIDDHARTHA LAW COLLEGE, DEHRADUN)
MRS. DEVIKA RANA
(ASSISTANT PROFESSOR, SIDDHARTHA LAW COLLEGE, DEHRADUN)
MR. MOHIT NEGI
(ADVOCATE, DEHRADUN DISTRICT COURT)

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VOLUME 01 • ISSUE 03 • NOVEMBER 2016

• MESSAGE FROM THE DESK OF THE EDITOR-IN-CHIEF
I feel honoured and blessed to write up for the Third Issue in Volume One. This issue is special
to me in particular because this completes our first volume of quality research in The Penstand Journal
Volume 01 series. We are proud presenting you this issue to feast your grey matter on.
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always inspired us to produce high quality work with each passing time.

Mr. Avishek Pradhan
Founder & Editor-in-Chief
The Penstand Journal

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VOLUME 01 • ISSUE 03 • NOVEMBER 2016

•JOURNAL•
THE ROAD FROM CODIFICATION TO IMPLEMENTATION:
A CRITICAL VIEW OF VISHAKA GUIDELINES TO THE PRESENT
LAW
ANNIE MAMPILLY
NATIONAL UNIVERSITY OF ADVANCED LEGAL STUDIES (NUALS), KOCHI
ABSTRACT
"Frailty, thy name is woman", was the ignominy heaped upon women of
Victorian Era by William Shakespeare in 'Hamlet'. This ignominy garners momentum
even today. This submission lays focus on the long road from codification of a law to
the practical implementation of the same with reference to the Vishaka Guidelines and
the Sexual Harassment of Women at Workplace (Prevention, Prohibition and
Redressal) Act, 2013.
The work further concentrates on the lacunae in the guidelines laid by Vishaka.
Though the guidelines were praised to be impeccable and to be an ideal codification,
time proved the contrary. A decade after we saw the change of a millennium, the lame
law with regard to practical implementation was brought into light and the same was
whittled down by Medha Kotwal Lele case and the Nirbhaya case.
It would be pertinent to note that the Nirbhaya case triggered enormous public
outrage. There was hue and cry at the nook and corner of the country against the then
subsisting law. It was followed by the issuance of an Ordinance amending the
parameters of the Criminal law. This raises a legitimate question on the public
pressure impact on judgments. Hence the same occupies the next segment of the
paper. A mention of the recent cases and the author’s point of view winds up the
Commentary.
INTRODUCTION
"Frailty, thy name is woman", was the ignominy heaped upon the women of
Victorian Era by William Shakespeare in 'Hamlet'. This ignominy garners momentum
even today. This submission lays focus on the long road from codification of a law to

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VOLUME 01 • ISSUE 03 • NOVEMBER 2016

the practical implementation of the same with reference to the Vishaka Guidelines and
the Sexual Harassment of Women at Workplace (Prevention, Prohibition and
Redressal) Act, 2013. Vishaka v. State of Rajasthan1 is popularly known as the case
against sexual harassment at workplace on account of the dozen of guidelines laid
down by the Hon’ble Supreme Court for the protection of women from sexual
harassment at workplace. The guidelines amassed widespread attention and
appreciation across the length and breadth of the Country. The scrutiny of certain
instances that followed and the Medha Kotwal Lele case judgment evidentially
substantiates that the distance from law confined to paper to its practical
implementation is immense. The Vishaka guidelines praised to be effective and
efficient eventually proved to be defective and deficient as they were hardly
implemented.
The impetus of this Public Interest Litigation the incident of a heinous and brutal
gang rape committed on a social worker, Bhanwari Devi in front of her husband at
Rajasthan. Years later, in about 2011, news alleging that the said Bhanwari Devi was
abducted, she was murdered etc. sprout out. However, the truth still remains as an
unsolved mystery. This clearly implicates that the Court was unable to protect
Bhanwari Devi, the real impetus of Vishaka judgment in spite of delivering mandatory
guidelines which had binding effect all over the nation. It is at this juncture that the
analysis of the road from codification to implementation becomes prominent.
THE EFFICIENT AND EFFECTIVE SPECTRUM
The efficacy of Vishaka guidelines can be inferred from three dimensions. At
the outset, the definition of sexual harassment was conferred a better definition. As
per the guidelines, it is the facet of ‘unwelcomeness’ which holds the key to
determining sexual harassment i.e. impact of such actions on the recipient is more
relevant than intent of the perpetrator.
Vishaka’s most unique innovation was Complaints Committee, an internal
complaints mechanism.2 This is because, the guidelines mandated that all workplaces

1

AIR 1997 SC 3011

2

Sexual Harassment at workplace, Naina Kapoor , Asian Age-,Jan 31, 2013

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VOLUME 01 • ISSUE 03 • NOVEMBER 2016

should set up a redress committee chaired by a woman, having 50% women
members. It also requires the presence of an external third party familiar with the issue
of sexual harassment. Thus, lion share involvement of woman in the committee
guarantees the victim an opportunity to open up their mind without embarrassment.
Mandatory presence of an external third party curbs undue top-level influences.
Internal mechanism saves the victim from the complexities of the legal procedure and
at the same time from social ostracism as there are procedures for settlement also.
The third noteworthy aspect of the Vishaka Guidelines is that it dictates the
employer’s duty. The primary responsibility to effectively prevent sexual harassment
at work places by issuing appropriate directions, prescribed in Vishaka lies on the
shoulders of the employer. It brings to light those incidents which might have been
unreported otherwise.
Thus in a nutshell, the Vishaka guidelines attempts to curb the victimization of
victims. Earlier, victim had to tolerate the presence of the harasser at workplace and
even risk her job.3 But according to the present guideline victims can seek the transfer
of perpetrator or their own transfer.
Another success of the Vishaka guidelines was that, a number of amendments and
initiatives followed. It encompasses of inter alia:

Sec.3C4 was added in The Railway Services (Conduct) Rules,
1966,5 The Central Civil Services (Conduct) Rules, 19646

Amended Industrial Employment (Standing Orders) Central Rules,
1946 to ensure the constitution of Complaint Committee in
established in each establishment.

3

Hebert L. Camille, ‘Why Don't 'Reasonable Women' Complain about Sexual Harassment?’ Indiana LJ (2006)

4

Prohibition of sexual harassment of working woman

5

Inserted by GSR 49, dated 13th February, 1998(W.E.F.7.3.1998)

6

Inserted by GSR 49, dated 13th February, 1998(W.E.F.7.3.1998)

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VOLUME 01 • ISSUE 03 • NOVEMBER 2016

Ministry of Women and Child Development Constituted the High
Level Committee to study the Status of Women and also initiated a
bill.7

Complaints Committee & Women’s Cell is constituted in Ministry of
Power,8 Ministry of Coal,9 Ministry of Mines10 etc.

NHRC succeeded in furnishing victims of sexual harassment with
adequate compensation11 and other remedies.12

THE DEFECTIVE AND DEFICIENT MAGNITUTE
When moving from the guidelines laid down to the guidelines implemented the
defective magnitude displays its large boundaries. Firstly, the nature of the internal
complaints committee mechanism reminds the saying ‘the crying baby gets its milk.’
The very quintessence of Vishaka guidelines lies in the constitution of an
effective complaints committee for the redressal of sexual harassment at workplace.
But here, only the ones approaching the committee with grievance get redressal. Fear
of pernicious effects in future forces a majority to conceal their grievance. The
molestation case of Ruchika Girhotra evidentially gives a living example.13 Wherefore,
silence is not an admission of ‘no grievance.’ Hence the Court should have taken a
view which could also combat this issue.

7

Year End Review of Ministry of Women and Child Development 2012, MANU/PIBU/2637/2012

8

Activities Relating To Women Employees Ministry Of Power, Annual Report 2009-2010, Chapter - 16

9

Ministry of Coal, Annual Report 2009-2010 - 17.2.5 Other Welfare Measures

10

Annual Report 2011-12, Ministry of Mines - 15 Welfare Measures

11

MANU/PIBU/0058/2013

12

MANU/PIBU/0036/2013

13

SPS Rathore v. State through CBI, Criminal Appeal No: 5 of 12.1.2010.(Decision of 25.05.2010 In The Court
Of SH. Gurbir Singh, Additional Sessions Judge, Chandigarh); SPS Rathore v. CBI, Crl. Revision No.1558 of
2010 (O&M) (Decided on 01.09.2010, Punjab and Haryana High Court)

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VOLUME 01 • ISSUE 03 • NOVEMBER 2016

THE TRIGGER PULLED FOR IMPLEMENTATION
The analysis of Vishaka judgment is incomplete without a reference to Medha Kotwal
Lele and Ors. v. Union of India and Ors,14 the decision that gave life to Vishaka.
Implementation of guidelines had to be not only in form but also in substance and spirit
so as to make available safe and secure environment to women at workplace in every
aspect and thereby enabling working women to work with dignity, decency and due
respect.15 It was an eye opener that submitted with ample evidence that many States
failed to adhere to the guidelines and the ones adhered was not properly functioning. 16
Finally, Court directed that the Complaints Committees shall be deemed to be
the Inquiry Authority for the purpose of Central Civil Services (Conduct) Rules, 1964
and that the report of the Complaints Committees will be deemed to be the Inquiry
Report under the Rules. Court opined that if there were any noncompliance of
guidelines, orders of the Court following the directions given, it would be open to
aggrieved persons to approach respective High Courts.
Though we firmly argue that judiciary is unbiased, at times, its judgments are
influenced by public pressure and media activism. From a critical angle it can be
concluded that the Court had given such strong guidelines to close the mouth of the
violent mob after the brutal rape of Bhanwari Devi. It is inferred so due to two reasons.
Firstly, the guidelines were confined to paper. Secondly Court has failed to take
stringent views in cases of sexual harassment which had not drawn much public
attention.17

14

2012(10) SCALE 458; vide Seema Lepcha v. State of Sikkim and Ors., 2012 (2) SCALE 635

15

Medha Kotwal Lele and Ors. v. Union of India (UOI) and Ors., 2012(10) SCALE 458; vide Seema Lepcha
v. State of Sikkim and Ors., 2012 (2) SCALE 635
16

Medha Kotwal Lele paras.10 & 11

17

Smt. Manju Lata Gupta v.Union of India Postal Department, through Secretary/Director General Dak
Bhawan and Ors. 2007(3) WLN 696

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VOLUME 01 • ISSUE 03 • NOVEMBER 2016

Justice delayed is justice denied. Delay in taking action in many cases would
frustrate the need for taking urgent action.18 Even after 15 years of Vishaka, it is
pathetic that the Legislature has miserably failed to pass the Bill.
The Delhi gang rape incurred widespread protest all over India with a well
cemented media backing. In this case, an Enquiry Commission was setup 19 and
J.S.Verma Committee was constituted to make recommendations to enhance the
safety of women. Thus it was the hand of public and media activism that aided and
prompted the Court to mold a couple of guidelines in Vishaka to shield women from
sexual harassment. This instance which shook the entire Country triggered the
immediate requirement of law. There was indeed a constitutional silence and
abeyance. Hence immediately the 2013 Ordinance was promulgated. This was
followed by the constitution of the ‘Sexual Harassment of Women at Workplace
(Prevention, Prohibition and Redressal) Act, 2013.’ Thus the Bill which was dormant
for over a decade metamorphosed into an Act in force.
Thus if the guidelines laid in 1997 in the Vishaka case was just a skeleton,
Medhal Kotwal Lele decision gave it flesh and blood and the Delhi Gang Rape gave
life to the aforesaid guidelines.
In practical terms, what is evincible is that, ever since stringent views were
taken in the Delhi gang rape case and an Act was constituted, there were also
implemented. Every institutions did constitute Internal Complaints Committee and took
measures to comply with the other mandates as and when required. Further, to a large
extent, the complaints committee was able to resolve a bunch of issues. The Court too
renders its helping hand for the effective and efficient functioning of the complaints
committee.
The mentioning of one such recent case is indeed inevitable at this avenue.
The case of Sardar Vallabhbhai National Institute of Technology and Ors v. Ranjit Roy
and Ors.20 decided by the Hon’ble High Court of Gujarat on 22nd March 2016 portrays

18

University of Kerala v. Council, Principals', Colleges, Kerala and Ors., AIR 2010 SC 2532

19

26.12.2012 MANU/PIBU/2638/2012 - The Commission of Enquiry has been set up under section 3 of the
Commission of Inquiry Act 1952 (60 of 1952).
20

MANU/GJ/0429/2016

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VOLUME 01 • ISSUE 03 • NOVEMBER 2016

that Court send matter back to the Internal Complaints Committee for fresh enquiry
and report. The edifice of the case rests on the complaints of sexual received against
certain professors. The High Court even took a view that the said professors would
remain under suspension pending enquiry and they were to vacate the staff quarters
at the latest by 15th April 2016. Thus the Court took all the possible measures to ensure
that the complainants are never harassed or threatened, the enquiry is not hampered,
the ends of fairness is met and that justice is imparted.
CONCLUSION
Lip service, hollow statements, inert and inadequate laws with sloppy
enforcement isn’t enough for true and genuine upliftment of our half most precious
population- women.21 Protection of women is of extreme importance to a civilized and
cultured society.22 While a legislation on sexual harassment seems imminent, Vishaka
Judgment has, over the last 15 years, leapt out of the statute books and deeply
influenced policy and practice in institutions and offices. Ignoring the directions of
Supreme Court "amounts to judicial impropriety" and such "judicial adventurism
cannot be permitted."23 However, to some extent, Vishaka Guidelines necessitates for
appropriate implementation mechanisms that recognize the obstacles posed by power
imbalances and gender norms in empowering women to make a formal complaint on
one hand and in receiving appropriate redress on the other. This defectiveness was
immensely cured with Medha Kotwal Lele case whereby complaints committee
incurred the status of an inquiring authority.
A well bonded legislature, executive and judiciary together with the joint effort of a
responsible population could bring the suffering women from the darkness of sexual
crimes to the light of safety and protection. A law confined to paper is nothing but a
dead law. It is inert. A law attains life only when it is practically implemented.
Codification is never the end of molding a law. There can be no full stop or an end
point in shaping a law. It is a continuing process which requires thorough

21

Seema Lepcha v. State of Sikkim and Ors., 2012 (2) SCALE 635

22

Rupan Deol Bajaj and Anr. v. K.P.S. Gill, (1995)6 SCC 194

23

Dwarikesh Sugar Industries Ltd. v. Prem Heavy Engg. Works(P) Ltd., AIR 1997 SC 2477

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VOLUME 01 • ISSUE 03 • NOVEMBER 2016

implementation and this implementation becomes complete and perfect with review,
amendment and deletion as and when the then scenario demands.

NEED TO REFORM LAWS ON PROSTITUTION IN INDIA
AYUSHI KUSHWAHA
DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY, LUCKNOW
ABSTRACT

With an ever-increasing demand for identification of the socially grounded or
ostracized classes of persons, the movement demanding recognition of Prostitution
as a sex industry has become an important subject of discussion. This paper attempts
to understand the realm of prostitution in India, which has an inherently complicated
culture and legal regime and how India deals with a sensitive issue like Prostitution.
The enactment of the Immoral Trafficking(Suppression) Act, 1956, which was later
amended to the Immoral Trafficking (Prevention) Act in 1986 is a major step towards
a structural, legal handling of the issue, however, the enactment presents several
bothering provisions, which have not been addressed ever since. Therefore, the paper
shall address those provisions contained in the enactment that needs urgent attention
and understanding. The paper shall highlight the debate between Abolitionists and
Retentionist seems to entangle the law-makers.
The whole issue concerning prostitution is not solely political; it has stakeholders from
social-cultural and economic domains. It is not a matter of concern to the ruling party
but has an impact upon the society in many direct and indirect ways. The need to
reform laws is the call of modern-day society that voices for recognition of basic human
rights, which every human regardless of his or her profession, is bestowed with
naturally. It is the struggle to ensure prostitutes a place in the society and uplift them
from the abominable status of “characterless” that can be victorious provided the
political, societal and economic forces come together.
KEYWORDS: Prostitution, Immoral Trafficking (Prevention) Act, Decriminalization,
Legalization, Sex Industry.

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VOLUME 01 • ISSUE 03 • NOVEMBER 2016

INTRODUCTION
Prostitution is not a modern or western phenomenon, as alleged by some
traditionalists, who, in the pretext of protecting indigenous culture, tend to blow
irrational and baseless claims. Prostitution has a long, probably untraceable history
and interestingly, it did not begin as a shabby, an immoral business carried out in
isolated, filthy streets for the forbidden pleasure of men. It once commanded royal
respect.
Mesopotamian religious practices purportedly gave birth to the prostitution trade, as
women in Ishtar’s service would help men who offered money to her temples with the
‘sacred’ powers of their bodies. Prostitution, or at least the religious prostitution
involved in these sacred sex rituals, existed without taboo or prohibition, as evidenced
in some of our species’ earliest literary works.24 In Hammurabi scripts, it is revealed
that prostitutes were considered not merely provider of sex but also a force of
civilization. Hindu civilization, too, did not originally stigmatized the devadasis and
tawaifs as it does in the name of depraved morality today.
The aforementioned paragraphs must not be construed to be propagating prostitution.
The point is that once prostitutes enjoyed rights, which seem to be a far-fetched reality
in a conservative country like India, which is grappling with escalating conflict between
liberal and traditional ideologies. The purpose of the discussion is to point out major
issues with prostitution, circling majorly around the under-developed appreciation of
several aspects engaged in this activity.
People tend to confine their understanding on prostitution as an unlawful trade
involving trafficked, forced, or coerced women or minors, who sell their bodies. Even
in this Age where there is hardly any profession, or trade or profession left entirely to
one sex, prostitution is still considered a women-related problem. Male prostitution
often goes unheard of because it is nearly impossible for a male-dominated society to
conceive the idea of forced participation of men in prostitution since they are the
‘stronger’ sex. In addition, there is a common preconception among the people that
prostitutes cannot be abused sexually. This misconception adds on the misery of the

24

http://www.puresophistry.com/tag/prostitution-in-canada-2/feed/ <Last Accessed on 21 March 2015>

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VOLUME 01 • ISSUE 03 • NOVEMBER 2016

poor individuals involved in prostitution and tries to stymie progressive steps towards
the realization of prostitute rights.
All of this paints a dismaying condition of prostitutes in the country, who suffer from
societal rejection and removal from economic benefits due to lack of rights. The
precarious situation of these individuals has not been properly realized in our society
that is gradually becoming porous to new societal norms and values. Despite
monumental efforts of the civil society, the hard-line thought line still downright rejects
the idea of any intrinsic self-respect and dignity in these individuals. The causes to
such thought line are philosophical, political, societal, and economical and whittling
down each is a herculean task, especially in a society like ours.
THE RETENTIONIST VS. THE ABOLITIONIST
Sex work or prostitution is an interesting intersect of sex, marriage, sexuality,
patriarchy inter-playing and impacting notions of morality, women's autonomy and
feminism.25 The dimensions this ‘work’ covers give us an impression that it is full of
impact to any society. Therefore, how every society deals with it is something that
must be understood.
Recently, a statistics showed that 39 % of the countries have made prostitution illegal,
whereas 49 % have made it legal such as the Netherlands and Germany. The
remaining 12 % provide for limited legality. However, the countries criminalizing
prostitution exceed in the overall population.26 India stands among those countries that
currently provide for limited legality. Whether or not this limited legality furthers the
purpose will be seen in the following chapters but what one must consider for this
chapter is that because of the increasing number of countries that have to legitimize
prostitution, the whole debate on prostitutes and their status have witnessed the
Retentionists and the Abolitionists take up the stage by storm.
Both

the

sides

are

predominately

feminists

and

have

some

profound

recommendations and arguments to state.
RETENTIONIST’S POINT OF VIEW: Gone are the days when the society would
altogether ostracize prostitutes and remind them of their ‘right-less-ness’. As the
25
26

R. Shukla, 'Women with Multiple Sex Partners in Commercial Context' [2007] EPW 18, 18
http://prostitution.procon.org/view.resource.php?resourceID=000772 <Last Accessed on 21 March 2015>

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VOLUME 01 • ISSUE 03 • NOVEMBER 2016

society is maturing and becoming more driven by democratic freedoms and social
reforms, prostitutes have secured support from a substantially large mass of scholars,
especially feminists, who actively advocate for decriminalization of “sex work”
(retentionist often use this term as a replacement to ‘prostitution’ as it is less offensive
and more professional) and demand for rights.
By means of decriminalization, the group demands complete removal of any sanction
against prostitutes. It recommends recognition of third party managers as legitimate
women or men and regulation of their business under the labor and business law, not
the criminal law. Advocates for decriminalization argue that the system should allow
the prostitutes to exercise their choice to sell their bodies with their voluntary consents
to the customers. Advocates for decriminalization apply "the same criteria to private
consenting adult sex," to the principle of regulating sex industry.27
Prostitution is believed to a forced sexual activity in exchange for money. It is
presumed that individuals involved in this so-called trade are either trafficked or
coerced. This presumption is however not exempted from fallacies. Many prostitutes
have willingly entered into this business of commercial sex and thus, bringing into
picture ‘consent’. Decriminalization is no panacea for fixing the worst aspects of sex
work, but it is a step in the right direction. In contrast to legalization, a system we call
"the state as pimp," decriminalization prevents the state from prosecuting adults for
consensual, nonviolent sexual activity, whether or not money is exchanged.28
The Retentionist’s point is that many women would want to willingly participate in
prostitution and they may not necessarily be economically deprived or coerced. In fact,
decriminalization would afford women freedom, financial autonomy, and sexual selfdetermination.29 After all, if a woman can sell her mental and manual skills, which are
exploited, there is nothing wrong in commercializing her sexual skills in prostitution,
which is only another form of woman’s work.30
Decriminalization is a setback to conservative beliefs. Prostitutes would be legally
recognized as professionals and would not have to go through persecutions of law
27

J.D. Cunha, 'Demand for Legitimising Sex work in the West' in Prabha Kotiswaran (eds), Sex Work (1st,
Women Unlimited, New Delhi 2007).
28
http://www.ontheissuesmagazine.com/july08/july2008_4.php <Last Accessed on 21 March 2015>
29
Ibid 25.
30
Ibid 25.

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enforcement agencies and society. It is also emphasized that decriminalization should
be accompanied by reforms, which will greatly help in the effective enforcement of
fundamental rights and upliftment of social status of prostitutes.
ABOLITIONIST’S POINT OF VIEW: As far as abolitionists are concerned, the group
often overwhelms the retentionist’s group as most of its arguments tend to satisfy our
inherent rationality that is somewhere rooted in our pre-conceived notions.
Jean D’Cunha, a powerful voice, argues that while retentionists admit the exploitation
of women in employment and makes pious claims for genuine occupational choice not
dictated by class, gender or race prejudices, and oppression, they affirm the right to
choose prostitution as an occupation. This only amounts to legitimizing prostitution as
a traditionally female occupation and the exploitation and sexual co-modification that
goes with it.31
As far as occupational choice is concerned, the percentage of forced or coerced
women still exceeds the percentage of consenting women. According to one report,
“the women in some of Mumbai's brothels are forced to turn over half their earnings to
the brothel owners, a situation akin to that of slavery; estimates based on a study in
Sangli are somewhat lower, at about 25 percent, although still significant.32 Given the
structural roots of prostitution, the so-called ‘free’ occupational choice dictated by a
complex of prior exploitative and discriminatory circumstances, is no choice at all. In
fact, several Asian prostitutes demand the choice of not having to work as prostitutes
at all”.33
Most of the retentionists claim prostitution rights on the ground that this will ensure
greater freedom to prostitutes and provide them with better atmosphere and
conditions. Many abolitionists debunk this claim vehemently. The constitutionality of
the Suppression of Immoral Traffic( Prevention)Act, 1956 (SITA) as it was then called
was challenged by one Shama Bai of Allahabad as encroachment on the right to
practise any profession or carry on any occupation, trade or business of choice
guaranteed under Article 19(1)(g) of the Constitution. The High Court while
recognizing that the work of a sex worker falls within the meaning of Article 19(1)(g)

31

Ibid 25.
Ibid 25, pg 93.
33
Ibid 25.
32

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held that the legislation does not totally prohibit the profession and upheld the
provisions as reasonable restrictions in the interests of the general public which could
be validly imposed under the law.34 The experience of women in prostitution reveals it
to be one of the most alienated forms of labour. From the instant she is procured for
prostitution, she is seasoned. Practices like changing the victim’s name, factors like
distance and separation from home, language barriers, denial of money to a woman
for travel, or otherwise, as well as use of brutal methods such as verbal abuse,
isolation in a room, starvation, drugging, beatings, rape and sodomy are used to break
the woman’s will and ego, separate her from her previous life and create a new
environment with new values, morals, attitudes and relationships to replace the old.35
Then, this consequential dhandhawali image is very difficult to eliminate from that
women.
Retentionists claim that sex work goes beyond sexual intercourse; that it may even
involve only caressing, seeing and touching in which case, sexual and other caregiving
services cannot be distinguished, however, this argument is out rightly rejected by
abolitionists, accusing the retentionists of cloaking the hardships of women in
prostitution. In order to protect rights of such women, they must be removed from the
shackles of prostitution, which is the most exploitative form of manual labour.
Last but not the least, many abolitionists believe that what may have been successful
in the USA and other countries, may not be successful in India. The reason being that
there are marked cultural differences between India and other countries and even if
we venture towards liberalization, we cannot certainly take the risk of a leap of faith.

As already mentioned in the preceding chapters that India has limitedly legalized
prostitution, then what does that imply? In India, the legal regime on sex work in India
is laid down under the Immoral Traffic (Prevention) Act, 1956 (“ITPA”).
ITPA does not proscribe sex work per se but penalizes specific activities related to
commercial sex.36 Interestingly, the legislators did not take either of extreme sides:
legalization or decriminalization. However, the drafting and implementation of this Act
34

Shama Bai v. State of UP, AIR 1959 All 57
Ibid 25.
36
http://www.lawyerscollective.org/files/ITPA%20Fact%20Sheet.pdf <Last Accessed on 21 March 2015>
35

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has raised serious issues that need to be urgently addressed or else the purpose of
the legislation would be defeated.
This Act could have served its purpose effectively had it been drafted properly. There
are certain major problems that need to be addressed:
‘TRAFFICKING’ NARROWED: This act concerns ‘immoral’ trafficking and should
have covered all forms of trafficking but it does not. Throughout the length and breadth
of the Act, “trafficking” concerns trafficking related to sex. The legislation (ITPA) deals
with acts like keeping a brothel, soliciting in a public place, living off the earnings of
prostitution. It does not even have a definition of trafficking! Yet so deep is the
association of prostitution with trafficking, that the law with regard to sex work is called
prevention of "immoral traffic".37 It does not cover other forms of trafficking and
invariably attaches significance of trafficking with prostitution as if the former exists
only for the latter cause.
DEFINITION OF BROTHELS: The Act goes through a drafting glitch in the definition
clause only wherein the term ‘brothel’ is defined.
Section 2(a) defines brothels as “any house, room, conveyance or place or any portion
of any house, room, conveyance or place which is used for purposes of sexual
exploitation or abuse for the gain of another person or for the mutual gain of two or
more prostitutes”.38 Under Section 3, keeping, running or maintain brothels is
punishable.
The problem with this definition is that it patently gives leeway for exploitation. Let us
consider the first part of the definition, which says “any house, room, conveyance or
place or any portion of any house, room, conveyance or place which is used for
purposes of sexual exploitation or abuse for the gain of another person” would be a
brothel. A logical deduction would mean that two consenting persons, having sexual
intercourse within the premises of a hotel, or even a house would be a brothel or that
those families, wherein women are often sexually abused by their husbands would
constitute running a brothel.

37
38

Ibid 26, pg. 18
ITPA, 1956

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The last part of the definition is arbitrary and greatly jeopardizes right to shelter
guaranteed under Art. 21 of the Constitution. The last part says “for the mutual gain of
two or more prostitutes” , which means if two more prostitutes are living together in a
house, from where they often indulge in commercial sexual activities—which per se is
not illegal—is illegal. There have been several instances where sex workers have lost
their homes & earnings under the guise of closing down brothels”39
LIVING ON THE EARNINGS OF PROSTITUTES: The Act puts women engaged in
prostitution in a dilemmatic situation where they cannot utilize their earnings lawfully,
as Section 4 of the Act prescribes that “any person over the age of eighteen years who
knowingly lives, wholly or in part, on the earnings of the prostitution of any other
person, shall be punished”
The purpose of this provision would have ordinarily meant to thwart pimps and
pounces from exploiting women sexually for commercial benefits but unfortunately,
the loose or rather, reckless drafting of the provision can even penalize children above
18 years, family members or any other persons for living on the earnings of a
prostitute. As it is a well-known fact that many women—especially from low socioeconomic backgrounds—are forced to enter into this industry due to lack of alternative
recourse, the Act further aggravates their situation by criminalizing living on their
expenses.
ABUSE AND REHABILITATION: Section 14 and 15 are the most empowering yet
most abused sections from the Act and their abuse indicates a trend that is nothing
but a blot on our law enforcing agencies.
Section 14 makes offences under PITA, 1956 cognizable, that is, the police do not
require an arrest warrant before conducting raids and searches. Section 15 is an
extension of Section 14, which states that the special officer or trafficking police officer,
on ‘reasonable’ grounds of belief, may conduct raids without search warrants. These
provisions have become a weapon of subjugation against poor prostitutes, who in
order to avoid being exposed or socially stigmatized, succumb to lewd demands of
police officers, who shamelessly violate these women.

39

http://www.lawyerscollective.org/files/ITPA%20Fact%20Sheet.pdf <Last Accessed on 21 March 2015>

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Under Section 15, there is a provision that is grossly violative of the procured person’s
right to privacy as it mandates a medical examination of persons removed from
brothels for, inter alia detection of sexually transmitted diseases. Sex workers are
reportedly forcibly tested for HIV & their results disclosed in Open Court. This is
contrary to national policy, which requires consent, confidentiality, & counseling for
HIV Testing.40
Section 16 deals with rescue and rehabilitation of prostitutes. Since the Act treats
prostitute—who willingly or unwillingly participated in the commercial sex activity—as
victims, they are indiscriminately ‘rescued’ and ‘rehabilitated’. The Act presumes that
a prostitute is nevertheless a victim and would need rehabilitation, even if forcibly
done. However, viable economic alternatives are either nonexistent or unavailable to
sex workers on account of stigma.41 Stressing on the urgent need for rehabilitation,
the Supreme Court had said: "It is only if a sex worker is able to earn a livelihood
through technical skills rather than by selling her body that she can live with dignity,
and that is why we have requested all the states and the Union of India to submit
schemes for giving technical training to these sex workers."42
Thus, the provisions of the Act come down heavily on prostitutes and force them to
abject social and economic stress.
PROSTITUTION LIMITED TO WOMEN: Throughout the Act, the prostitutes have
been referred to as women. A presumption runs throughout the length and breadth of
the Act that only women can indulge in prostitution or for that matter, be forced into
prostitution. The reality is different and, on an emphatic note, abhorrent.
According to a United Nations report, certain Indian traditions and customs also have
a role to play in the perpetuation of the male sex trade. The report “Traditionalizing
male prostitution in India” says that boys in the age group of 15 to 25 with feminine
demeanor migrate to Bihar and Uttar Pradesh from various states to perform, what is

40

http://www.lawyerscollective.org/files/ITPA%20Fact%20Sheet.pdf <Last Accessed on 21 March 2015>

41

http://www.lawyerscollective.org/files/ITPA%20Fact%20Sheet.pdf <Last Accessed on 21 March 2015>
http://timesofindia.indiatimes.com/india/Identify-sex-workers-in-metros-willing-to-quitSC/articleshow/9290395.cms <Last Accessed on 21 March 2015>
42

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called the ‘Launda naach.’43 Poor families hire the Laundas (a native term for young
boys), as they cannot afford “more expensive” women dancers. The dancers mainly
belong to lower-middle-class and poor families of West Bengal, Bihar, Uttar Pradesh
and Maharashtra while some hail from Nepal and Bangladesh. These dancers are
vulnerable to physical and sexual assault.44 “A group of 10 to 15 men could physically
carry a dancer to a field and gang-rape him. And, this is a very common trend.
Resistance only leads to greater torture and sometimes even death,” the report
reveals.45
Amidst the feminist debates on prostitutions, we become ignorant on the rising cases
of male prostitution, which is equally exploitative. That age-long presumption is
shattered as we see the rising percentage of males, who have been forced into
prostitution for commercial purposes. Commoditization of any gender is not acceptable
as both groups possess human instincts and basic fundamental rights.
CONCLUSION
Prostitution has now drawn the attention of everyone since the last decade. The globe
drive to eradicate discrimination and torture directed toward prostitutes is pervading
across nations and has been successful in many. The International organizations,
such as the United Nations, have repeatedly urged their member-nations to take proactive steps towards betterment and rehabilitation of prostitutes, regardless of the
stance towards prostitution. All of this has even compelled the Apex Court of India to
take up the issue as a whole.
Recently, the Supreme Court of India had suggested that Prostitution is India should
be regularized and sought suggestions on formulating conditions which would enable
those who wish to "continue working as sex workers" to do so "with dignity." Holding
that the right to live with dignity was a constitutional right, the bench constituted a panel
comprising senior advocates and NGOs to look into the problems faced by sex
workers and give suggestions aim at the protection of their fundamental rights.
However, regularization of Prostitution cannot be effective unless abuse of the
prostitutes is not effectively addressed. Mere Regulating commercial sex industry
43

http://indiatogether.org/realities-of-male-sex-workers-society <Last Accessed on 21 March 2015>
Ibid.
45
Ibid.
44

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would not ensure protection and preservation of rights of the prostitutes. The
prostitutes, whether male or female, undergo a systematic chain of rape and torture in
brothels and these issues often remain unheard because many people do not accept
the notion that a prostitute can be raped.
The legislature also has to look into the possibility of abuse of regularization wherein
a minor prostituted has consented for prostitution. If the State allows prostitution,
whether a minor prostitute, who willingly consents to sex be covered under legal
prostitution and if not, how it will determine minor prostitutes as most of the prostitutes
are trafficked and lack basic official formalities, like a birth certificate or registration.
Apart from discussing the possibility of regularization, the issue of alternative
employment needs utmost attention. The PITA Act is a poor legislature reflective of
the most orthodox societal mindset that has unhealthy repercussions on the primary
stakeholders, the prostituted. The Apex Court has poignantly highlighted the need for
alternative employment in the case of State of Maharashtra & Anr. Vs Indian Hotel
& Restaurants Assn. & Ors46, where the court had said that:
“Of course, the right to practise a trade or profession and the right to life guaranteed
under Article 21 are, by their very nature, intermingled with each other, but in a
situation like the present one, such right cannot be equated with unrestricted freedom
like a run-away horse. As has been indicated by my learned Brother, at the very end
of his judgment, it would be better to treat the cause than to blame the effect and to
completely discontinue the livelihood of a large section of women, eking out an
existence by dancing in bars, who will be left to the mercy of other forms of exploitation.
The compulsion of physical needs has to be taken care of while making any laws on
the subject.
The PITA Act is an obsolete legislation that needs balanced, pro-rehabilitative modernday legislation as a replacement. This, however, can be achieved only when the
society becomes receptive to the constitutional and natural needs of prostitutes, who
have for ages suffered unparalleled stigmatization. We need to have our
representatives in Parliament appreciate the distressing condition of prostitutes that

46

AIR 2013 SC 25821

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can be only remedied through positive, rehabilitative process, not by means of guns
and batons.
As a concluding note, the quote from J. Jeffery Means will be most fitting. She
describes the dilemmatic conditions of women in prostitution in following words:
“When basic human needs are ignored, rejected, or invalidated by those in roles and
positions to appropriately meet them; when the means by which these needs have
been previously met are no longer available: and when prior abuse has already left
one vulnerable for being exploited further, the stage is set for the possibility these
needs will be prostituted. This situation places a survivor who has unmet needs in an
incredible dilemma. She can either do without or seek the satisfaction of mobilized
needs through some illegitimate source that leaves her increasingly divided from
herself and ostracized from others.”

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INDIAN SCENARIO: ARBITRATION AS DISPUTE RESOLUTION
GAURI SHRIKHANDE
ARMY INSTITUTE OF LAW, MOHALI
ABSTRACT
As an alternative dispute resolution mechanism, the arbitration provides speedier
settlement of commercial disputes, whether domestic or international in character. In
the wake of globalization of trade and commerce and also for effective implementation
of economic reforms in 1990s, a new Arbitration Law based upon the Model Arbitration
Law formulated by the United Nations Commission on International Trade Law
(UNCITRAL) was passed by the Indian Parliament repealing the earlier laws on the
subject of arbitration. The Arbitration and Conciliation Act, 1996, besides giving
statutory recognition to the conciliation, provides for the constitution of the arbitral
tribunal to conduct the arbitral proceedings and making of the award in case of both
the domestic and international commercial arbitrations. The award made by the arbitral
tribunal is final and binding upon the parties and is enforceable as a decree of a Civil
Court. An important question pertinent in this regard is whether the doctrine of res
judicata as enshrined under the Code of Civil Procedure of 1908 is applicable to the
final award of the arbitral tribunal, which is not under a strict compulsion to follow the
strict procedure stipulated in the Code of Civil Procedure. This article is an endeavour
to analyse the applicability of the rule of res judicata to the arbitration awards in India.
INTRODUCTION
Arbitration is in no way a modern concept, nevertheless it has been well thought-out
on the more systematic and scientific patterns, expressed in new clear and elaborative
terms and providing wide-ranging resolution in recent years than before. Though its
genus can be traced back to the elemental method of village panchayats widespread
in primordial India, the complexities of trade and commerce in the country and the
cross-border trading with nationals of other countries demanded more systematic
approach acceptable to the parties to dispute in such commercial transactions.
Besides, the litigation process, which was quite dilatory and costly affair, parties often
resorted to alternative dispute resolution methods. The question of enforceability of
the decisions by such mechanisms, however, was a very unmanageable issue that
compelled the parties to knock the doors of the courts. The arbitration as a method of

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dispute settlement was resorted to by the English merchants and traders. In India, the
earlier laws relating to arbitration were based on the English Arbitration Laws and the
first statutory enactment on arbitration law was the Indian Arbitration Act of 1899,
which was not a complete code in itself and extended to the matters that were not
before a court of law for adjudication. Besides, the provisions relating to arbitration
could be found in the Code of Civil Procedure, 1859, which was repealed later on by
the Act of 1882 that was further replaced by Code of Civil Procedure of 1908. In 1940,
however, the law on arbitration was consolidated and redrafted on the pattern of the
English Arbitration Act of 1934. However, due to the globalization in the fields of trade
and commerce, the Arbitration Act of 1940 proved to be inadequate in meeting the
requirements of both the domestic and international commercial disputes. The
Arbitration Act of 1940 was repealed by the Arbitration and Conciliation Act, 1996
(hereinafter, the ‘Act’). This Act marks the beginning of a significant era in the history
of legal and judicial reforms in India. Besides conciliation and the matters connected
to it, the Act aims to consolidate and amend the law relating
to domestic arbitration, international commercial arbitration and enforcement of foreign
arbitral awards. The Act is in conformity with the Model Arbitration Law framed by the
United Nations Commission on International Trade Law (UNCITRAL), especially to
address international commercial disputes. The Act minimizes the supervisory role of
the courts by allowing the appointment of arbitrators and leaving all the contentious
issues to be decided in arbitration in accordance with the terms of the arbitration
agreement between the parties.

ROLE OF COURTS IN MATTERS OF ARBITRATION
Settlement of disputes through arbitration is a statutory right and where not prohibited
by any other law in force in India, it can be resorted to by the parties by entering into
a contract containing arbitration clause in it or by making a separate arbitration
agreement in accordance with Section 7 (2) of the Arbitration and Conciliation Act,
1996. By the arbitration agreement, which is either in the form of a contractual clause
or as a separate agreement, the parties may submit all or certain disputes that have
arisen or may arise between them in respect of defined legal relationship, whether
contractual or not (Section 7(1) of the Act). On account of validity of the arbitration
agreement, the courts cannot intervene into matters of arbitration as they have been

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prohibited under section 5 of the Act. Rather the courts are under an obligation to refer
the parties to arbitration in terms of their arbitration agreement under section 8 of the
Act47. Additionally, the court is under the duty to refer the parties to arbitration under
Section 8 of the Act where on one hand one of the parties has moved to the court for
settlement of the dispute despite the existence of the valid arbitration agreement with
the other party to the dispute, and the subject matter of action before the courts is the
same as that of the arbitration agreement, and on the other hand the other party before
submitting his first statement on the substance of the dispute, makes an application to
the court for referring the matter to arbitration48 . The word ‘matter’ in Section 8 refers
to the entire subject matter of arbitration agreement and the court does not allow the
division of the cause of action, that is, one to be decided by the court and the other to
be decided by way of arbitration, as was made clear by the Supreme Court in the case
of Sukanya Holding (P) Ltd. v. Jayesh H. Pandya & another49. Besides that the court
cannot stay the arbitral proceedings and the same terminates either with the final
award of the arbitral tribunal or by an order of termination of the arbitral proceedings
made by the tribunal in pursuance of Sub-Section (2) of Section 32 of the Act.

ARBITRAL TRIBUNAL & RES JUDICATA
The arbitrators which determine the outcome of the dispute are called the arbitral
tribunal. The composition of the arbitral tribunal can vary enormously, with either a
sole arbitrator sitting, two or more arbitrators, with or without a chairman or umpire,
and various other combinations. In most jurisdictions, an arbitrator enjoys immunity
from liability for anything done or omitted whilst acting as arbitrator unless the arbitrator
acts in bad faith.
Arbitrations are usually divided into two types: ad hoc arbitrations and administered
arbitrations.
In ad hoc arbitrations, the arbitral tribunals are appointed by the parties or by an
appointing authority chosen by the parties. After the tribunal has been formed, the

47

(Paranjape, 2011, p. 95- 96).
Kurlwal, 2011, p. 277
49
AIR 2003 SC 2252
48

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appointing authority will normally have no other role and the arbitation will be managed
by the tribunal.
In administered arbitration, the arbitration will be administered by a professional
arbitration institution providing arbitration services, such as the LCIA in London, or
the ICC in Paris, or the American Arbitration Association in the United States. Normally
the arbitration institution also will be the appointing authority. Arbitration institutions
tend to have their own rules and procedures, and may be more formal. They also tend
to be more expensive, and, for procedural reasons, slower.
The duties of a tribunal will be determined by a combination of the provisions of the
arbitration agreement and by the procedural laws which apply in the seat of the
arbitration. The extent to which the laws of the seat of the arbitration permit "party
autonomy" (the ability of the parties to set out their own procedures and regulations)
determines the interplay between the two.
However, in almost all countries the tribunal owes several non-derogable duties.
These will normally be:

to act fairly and impartially between the parties, and to allow each party a
reasonable opportunity to put their case and to deal with the case of their opponent
(sometimes shortened to: complying with the rules of "natural justice"); and

to adopt procedures suitable to the circumstances of the particular case, so as to
provide a fair means for resolution of the dispute.

Unless, the parties determine the procedure to be followed by the arbitral tribunal in
the course of proceedings, Section 19 of the Arbitration and Conciliation Act 1996
gives the discretion to the arbitral tribunal to determine its rules of procedure, whereby
it is not under an obligation to follow the procedure contained in the Code of Civil
Procedure, 1908 or the Indian Evidence Act, 1872. Based upon such agreement
between the parties or the determination of the arbitral tribunal, the tribunal follows the
procedure and resolves the dispute and makes either an interim award, which is also
the part of the award, and in the end gives a final award with mandate of the arbitral
tribunal comes to an end. After the termination of the proceedings of the arbitral
tribunal, the question which arises is whether the reference for the second time on the

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same dispute to arbitration is barred by the principle of arbitration? It is true that the
courts in India often encounter the problem of application of doctrine of res judicata in
an award made by the arbitral tribunal.50 In order to find a solution to this problem, it
is imperative to comprehend the concept of res judicata and its application to a suit
before the law court. Section 11 of the Code of Civil Procedure embodies the doctrine
of res judicata, which has a wide application and extends to the arbitration awards
besides litigation, since the award of the arbitral tribunal has same applicability as the
decree of a Civil Court. Section 11 of the Code of Civil Procedure provides: “No Court
shall try any suit or issue in which the matter directly and substantially in issue has
been directly and substantially in issue in a former suit between the same parties, or
between parties under whom they or any of them claim, litigation under the same title,
in a Court competent to try such subsequent suit or the suit in which such issue has
been subsequently raised, and has been heard and finally decided by such Court.”
Thus the doctrine of res judicata is a procedural provision and cannot be invoked in
the same Court in the same matter by the same parties when the matter has been
decided finally by the Court, and this is done to preserve the effect of the judgment
given by the Court. Res judicata, however, does not bar making of an appeal, since it
is a mere extension of the law suit to the higher Court having appellate jurisdiction.
The doctrine of res judicata refers to the binding effect of the judgment in a prior case
on the claims or issues in subsequent litigation. It also means the judged matter. Res
judicata is a species of estoppel and has two primary applications. One where it is
referred as true res judicata, which prevents a party from suing on a claim or cause of
action that
has or could have been determined by a competent court in a final and binding
judgment, and the second application of res judicata may be referred as collateral
estoppel or issue estoppel, which prevents for the second time the litigation of the
specific issues actually litigated and determined by a final judgment, where the issues
were essential to the judgment (Wong, 2005, p. 53). On these points, the Courts in the
later law suits are required to find as to which of the two applications is attracted so
that it can bar the re-litigation with regards to the other as many causes of action may
apply to the same facts and vice versa.

50

http://www.worldwidejournals.com/gra/file.php?val=October_2012_1350412435_d4107_33.pdf

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In India, a distinction has been made between res judicata and issue estoppel.
Whereas res judicata debars a court from exercising its jurisdiction to determine the
suit if it has attained finality, the doctrine of issue estoppel is invoked against the party.
Consequently, if such issue is decided against him, he would be estopped from raising
the same in the subsequent proceedings.1 In Bhanu Kumar Jain v. Archana Kumar51,
the Supreme Court held that the doctrine of res judicata creates a kind of estoppel,
viz. estoppel by Accord. Another sub-set of doctrine of res judicata as applied by the
Indian Courts is the ‘Constructive res judicata’, a rule engrafted in Explanation IV of
Section 11 of the Code of Civil Procedure, restricts any claim to be raised in a
subsequent proceeding wherein an earlier proceeding such claim could have been
raised and decided. Thus the doctrine of constructive res judicata seeks to bar
determination and enforcement of claims which the party failed to raise in the
appropriate forum as was HELD by the Supreme Court in Ramachandra Dagdu
Sonavane (D) by L.Rs. v. Vithu Hira Mahar (Dead) by Lrs. & Ors. 52. In the matters of
reference to the arbitral tribunal, the doctrine of res judicata is attracted in a way it
applies to the suit in a law court. Nonetheless, the doctrine is not applicable to the
interim award made under Section 31 (6) of the Act, whereby the arbitral tribunal is
empowered to make an interim arbitral award on any matter with respect to which it
may make final arbitral award. In the matters of arbitration, the doctrine of constructive
res judicata has no application53. Thus where a reference to arbitration does not
include the whole claim, a subsequent reference of such left out claims will not be
barred by the doctrine of constructive res judicata. The Calcutta High Court in Sudhir
Kumar v. J.N. Chemicals54, applied the doctrine of res judicata and prohibited issuance
of subsequent award on the basis of making of the arbitration agreement between the
parties to dispute in arbitration.
In Venture Global Engineering v. Satyam Computers Ltd. & Another55, where the
Supreme Court held that the foreign award was enforceable in India and an application
could be made under Section 34 of the Act of 1996 for setting aside the award even

51

AIR 2005 SC 626
AIR 2010 SC 818
53
Paranjape, 2011,p.199
54
AIR 1985 Cal. 454
55
AIR 2008 SC 1061
52

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in case of foreign awards. Following the decision of the Supreme Court in Venture
Global, in one of the most significant judgments, the Delhi High Court in Anita Garg v.
Glencore Grain Rotterdam B.V.

56,

HELD that the appellants were barred by res

judicata to make an application as the they had defended the execution petition filed
by the respondent. The petition was preferred under Section 34 of the Arbitration and
Conciliation Act, 1996 against the interim award and the final award rendered in an
international commercial arbitration and the learned single judge of Delhi High Court
held that the foreign award was enforceable. Thus the doctrine of res judicata would
also apply to the foreign awards. However, a recent ruling of the Constitutional Bench
of the Supreme Court on September 6, 2012, on the question of international
commercial disputes seated outside India in the case of Bharat Aluminium Co. v.
Kaiser Aluminium Technical Service Inc., overruled the earlier decision of Bhatia
International v. Bulk Trading S.A.57, where the Supreme Court allowed provisions of
Part I of the Arbitration and Conciliation Act relating to interim relief and setting aside
of the arbitral award to international arbitration disputes seated outside India, which
consequently permitting the Indian Courts to challenge the foreign awards, as was laid
down earlier in Venture Global case. In Bharat Aluminium it was held that in case of
foreign award, the Court having jurisdiction over the subject matter of award would
continue to be the court to which an enforcement application would lie. Thus, it is clear
that where the seat of arbitration in case of international disputes is in India, then only
the Courts in India can apply relevant provisions of Part I of the Act and can enforce
that award. This further makes it clear that doctrine of res judicata is also applicable
to the foreign awards made outside India and the same are enforceable or annulled
by the foreign courts having jurisdiction on the subject matter.

INTERNATIONAL ENFORCEMENT
It is often easier to enforce arbitration awards in a foreign country than court
judgments. Under the New York Convention 1958, an award issued in a contracting
state can generally be freely enforced in any other contracting state, only subject to
certain, limited defenses. Only foreign arbitration awards are enforced pursuant to the
New York Convention. An arbitral decision is foreign where the award was made in a
56
57

O.M.P. No. 138/2011 &I.A. Nos. 2250-51/2011
(2002) 4 SCC 105

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state other than the state of recognition or where foreign procedural law was used. In
most cases, these disputes are settled with no public record of their existence as the
loser complies voluntarily, although in 2014 UNCITRAL promulgated a rule for public
disclosure of investor-state disputes.
Virtually every significant commercial country in the world is a party to the Convention
while relatively few countries have a comprehensive network for cross-border
enforcement of judgments their courts. Additionally, the awards not limited to
damages. Whereas typically only monetary judgments by national courts are
enforceable in the cross-border context, it is theoretically possible (although unusual
in practice) to obtain an enforceable order for specific performance in an arbitration
proceeding under the New York Convention.
Article V of the New York Convention provides an exhaustive list of grounds on which
enforcement can be challenged. These are generally narrowly construed to uphold the
pro-enforcement bias of the Convention.

GOVERNMENT DISPUTES
Certain international conventions exist in relation to the enforcement of awards against
states.

The Washington Convention 1965 relates to settlement of investment disputes
between states and citizens of other countries. The Convention created
the International Centre for Settlement of Investment Disputes (or ICSID).
Compared to other arbitration institutions, relatively few awards have been
rendered under ICSID.

The Algiers Declaration of 1981 established the Iran-US Claims Tribunal to
adjudicate claims of American corporations and individuals in relation to
expropriated property during the Islamic revolution in Iran in 1979. The tribunal has
not been a notable success, and has even been held by an English court to
be void under its own governing law.

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CONCLUDING REMARKS
The Arbitration and Conciliation Act, 1996 governs arbitration, whether domestic or
international commercial arbitrations, and is in compliance with Model Arbitration Law
framed by the UNCITRAL. In all the cases of domestic arbitration and also where the
seat of arbitral tribunal is in India in case of the international commercial arbitration,
the doctrine of res judicata, which is a codified principle under Section 11 of the Code
of Civil Procedure 1908, would apply. Its application to arbitration bars the further
reference to arbitration on the same dispute. Where all the disputes referred to
arbitration are decided, then no second award can be made again on the ground that
an arbitration agreement to refer the dispute to arbitration still exists between the
parties. The same is not permissible where all the disputes have been decided as the
arbitration agreement merges with the final award. However, where some of the
matters were not raised earlier, the doctrine of constructive res judicata would have
no application, as the law governing arbitration is based upon a mutual contract
between the parties to refer the dispute to arbitration, the same cannot be barred by
the doctrine of constructive res judicata. The doctrine of res judicata also has no
application to the interim awards made by the arbitral tribunal, but have application
only to the final award.

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EMPOWERING SANTHARA THROUGH LAW
NAYAN JAIN AND HARSHITA TOMAR
HIDAYATULLAH NATIONAL LAW UNIVERSITY, RAIPUR
ABSTRACT
May death be Auspicious!
-Acarya Vidhyananda Muni58
History of Jainism can be traced back to 2,500 years ago and it still prevails in India.
It is mainly represented by nonviolence (ahimsa). Jainism proscribes violence against
all living things. It necessitates mendicants as well as laymen to be veracious
vegetarians. The practice of fasting unto death i.e., santhara is celebrated as piousritual in Jainism though they are strictly against violence.
Emile Durkheim, a renowned French sociologist pertains this type of ritual in his work
(Theory of Suicide). This research report agitates the ritual of santhara, based on its
historical commentaries. Firstly, it contours the division of death in Jainism. Death in
Jainism is mainly divided into two main categories i.e., “pandiyamarana or death of a
wise man” and “balamarana or death of a fool”. This division tries to clarify that how
santhara corresponds to “death of a wise man”. Next, it outlines the definition and
meaning of santhara. This study tries to interpret the broader aspect of santhara and
why it is not restricted to “thinning the passions and the body properly”. Also, it
highlights santhara in Jain scripts. From the eyes of legal fraternity, santhara is often
misinterpreted as suicide. Hence, this research tries to differentiate between santhara
and suicide. This report also states why in Jainism intentions are given more
importance than results. Jainism preaches this principle to differentiate santhara from
suicide.
Recently a public interest litigation was filed under Article 226 of the Constitution of
India, where, the petitioner, has prayed to treat the practice of santhara as illegal and
punishable under the lex terrae and also prayed to treat the alleged abetment as

58

Acharya Vidhyanand Muni is one of the senior most principal philosopher and a versatile Jain monk who has
dedicated his entire life in preaching and practicing the noble concept of nonviolence (Ahimsa) through Jainism.

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criminal act.59 The Rajasthan High Court entertained this PIL which lead to huge
protest by the Jain community. This resulted in a huge turmoil. This paper uses a
doctrinal method in analyzing the concept of santhara and how we can empower it
through law. A through discussion will go on throughout this paper and at the end
recommendations will be proposed on what should be embraced or what should be
freezed out.

INTRODUCTION
Jainism is a venerable Indian religion that preaches way to liberation, harmlessness
and renunciation. They are disunited into two major sects, viz, sky clad sect
(Digambara) and the white clad sect (Shvetambara). According to Jainism animals
and plants contains living souls. Each soul is deliberated of equal value and is treated
with compassion and respect. They tries to embrace worldly resources in a minimal
and necessary amount. Their belief holds in reincarnation and in attaining supreme
liberation, i.e., absconding the perpetual cycle of birth, death and rebirth so that the
eternal spirit lives permanently in a state of happiness. This can be attained by
eliminating karma from the soul.
Jainism is a cult which practices self-help, i.e., there is no concept of god and priest in
it. Instead, there is a concept of Tirthankaras. According to Jain mythology, over a long
period of time, their religious teachings are gradually forgotten, which are again
disseminated by a rare individual who renounce the world to conquer the continuous
cycle of death and rebirth. In each half of cosmic time cycle, exactly twenty four such
individual or Tirthankaras are born. Latest of present cosmic time cycle being lord
Mahavira whose teachings are mentioned in the sacred texts called Agamas.
Also, there are religious people viz. monks and nuns, who preaches simple, veracious,
strict and austere lives. The 'three jewels' or the three main principles are right belief,
right conduct and right knowledge. There are five great vows (mahavratas) in Jainism.
They being-

59

D.B.Civil Writ Petition No.7414/2006 (PIL), Nikhil Soni V/s Union of India & ors. Date of Order 10.8.2015.

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S.

Vows

Meaning

Ahiṃsa

Not to hurt any living being by actions and

No.
1.

thoughts
2.

Satya

Not to lie or speak what is not commendable.

3.

Asteya

Not to take anything if not given.

4.

Brahmacharya

Chastity / Celibacy in action, words &
thoughts.

5.

Aparigraha (Non-

Detachment from material property.

possession)

THE CLASSIFICATION OF DEATH IN JAINISM
One of the most seasoned canon Uttarajjhayahas chiefly classified death in two ways,
one is akamamarana which is the demise of a wrongdoer (undesired passing) and the
other is sakamamarana which is the death of the well-behaved (desired death).
Another canon calls the previous "the death of a fool (balamarana)" and the latter "the
demise of an astute man (pandiyamarana)." Santhara is incorporated into "the demise
of an astute man" and suicide is incorporated into "the death of fool." This report
fundamentally manages the previous part, i.e. "the demise of a wise or astute man".
SANTHARA
Santhara is an ancient and continuing fundamental spiritual practice. Sallekhana,
sanyasa, samadhi, nirupadhi and viriyamarana are all equivalent words of Santhara.
The other equivalent words of Santhara are Samadhimarana and Paṇḍitamaraṇa. The
idea is that honorable demise ought to be in a condition of Samadhi, that is, in a state
deprived of all interests and Kasayas (like indignation, conscience, connection and
insatiability and so forth). The expression "Santhara" is initially utilized as a part of
Acharang, the principal sutra, incorporating the main arrangement of saying of
Mahavira, said to have been conveyed before 2500 years prior.
The fundamental idea hidden the practice of Santhara is that a man who is the expert
of his own fate ought to determine himself to take after the best strategy for leaving
the body. Jainism talks about death intensely and in a valiant tone. Santhara is a

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retreat to peace in genuine sense, to act naturally completely free from all diversions,
for unadulterated examination and thoughtfulness.
The sacred men say that Santhara is surrendering the body (by fasting) when there is
an unavoidable cataclysm, serious draught, seniority or hopeless illness, keeping in
mind the end goal to watch the control of religion.60
Santhara truly implies a bed of hay: the practice infers the name Santhara in light of
the fact that when the demise approaches, the wannabe or entertainer sits or rests a
bed of hay, disavowing all interests, connection and admission. The other idea and
term is Sallekhana. The word Sallekhana is gotten from the words – "Sat" and
"Lekhana", "Sat" signifies "Samyak" i.e. a genuine and appropriate and "Lekhana"
implies progressive debilitating of interests/wants. This is joined by progressive
surrendering of sustenance and water.
While the Shvetambara custom uses both the words, i.e., Santhara (which is at the
phase when one is confronting demise) and Sallekhana, (which is steady withdrawal
of sustenance and water). In Digambara convention, the word Santhara is not utilized.
Rather they utilize the term Sallekhana which has two structures specifically

Niyama-Sallekhana (repudiating sustenance and water step by step for a repaired
period which may go to 12 years) and

Yama-Sallekhana (which is undertaken when death is fast approaching)61.

Santhara of Shvetambara convention is along these lines proportional to YamSallekhana of Digambara custom. Further, the word Sallekhana utilized as a part of
Shvetambara convention resembles Niyam-Sallekhana of Digambara custom.
Sarvarthasiddhi (the Digambara organization's most seasoned critique) clarifies that
"Sallekhana" implies legitimately (sal) dispersing (lekhana) the body and the interests.
To be specific, Sallekhana implies dispersing in due request the inside interests and
the outer body by disavowing their cause.

AcaryaSivakoti “when there is no rescue, when wild animals approach you, on proper conducive food is
attained in famine, when no proper rules of conduct can be followed or when old age appears or when diseases
are there, then in such a case it is necessary to take Sallekhana and abandon the body.”
61
Sallekhana, by Ramesh Chandra Bazal, Flag-G, verses 19 and 20 of Samadhi MahotsavaDeepika.
60

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Before acknowledging upon the legitimacy of Santhara practice one needs to
comprehend the mystical moral and social ideas of Jainism which are unique in
relation to other religion. Jain power isolates the Universe into interminably coinciding
however autonomous, classifications, one Jiva- the spirit and second Ajiva-the nonsoul. The body is the non-soul. Soul is the focal subject in Jain framework. A definitive
objective of a human life in Jainism is the acknowledgment of the spirit viz. Atma
Darshan after its liberation from the trap of non-soul of the body.
Every single living being realize that body and soul are distinctive and unmistakable,
however from time everlasting, the conviction that body and soul are one has
flourished. Since one is caught up with getting a charge out of the subjects of five
senses and four passions (anger, deceit, greed and pride) and henceforth would never
comprehend the genuine way of the spirit/self. Until one encounters the genuine way
of unadulterated soul, he can't wipe out the connection and repugnance with other
living and non-living creatures. By tolerating body and self as same, one can't
comprehend the genuine way of self. In any case, he is a shrewd one who
comprehends body, exotic organs as unmistakable from the self/soul.
The Ontology of Jainism is that there is a dualism of body or ajiva and soul or jiva.
Further, Jainism trusts that body is subservient to soul. Insofar as body serves the
spirit, it has its handiness. The minute body, due to maturity or terminal ailment, stops
to help soul, a man may thoroughly get withdrew to the body to the degree that he
doesn't bolster it.
Likewise, Jainism has confidence in resurrection thus the outcomes of our Karmas are
needy upon our own great and terrible considerations, words and deeds. Each living
being is in charge of its own exercises the results of which work out naturally. One
can't escape from one's Karmas with the exception of by encountering their outcomes,
great or terrible. The Karmas prove to be fruitful and are along these lines in charge
of our Karmic bodies.
KEY ELEMENTS IN SANTHARA
 Disposing of Kasaya (anger, ego, attachment and greed so forth.) which gather
karmas and which prevents one from liberation.

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 To be totally detached to the material world and body by not bolstering oneself
in some additional conventional circumstances like fatal illness, maturity
bringing on insufficiency and so forth.
PROCEDURE TO PERFORM SANTHARA
Acaramga is the first set of discourses of Mahavira whose history can be traced back
2500 years prior. It is the principal ordinance of Jains, similar to Vedas of Hindus, Bible
of Christians, Quran of Muslims and so on. It expresses that:
"If an ascetic realizes that now it is gradually becoming impossible for him to sustain
the body for his essential (ascetic) duties, he should gradually reduce his food intake
through austerities. While reducing the food intake he should also reduce his passions.
After reducing passions he should acquire mental serenity. Becoming thin by honing
both sides, body and passion, like a plank of wood, that ascetic should make himself
stable (free of agitations of body and mind) and rise (prepare to embrace meditational
death or Samadhimarana). If that ascetic has enough energy to walk, he should go to
a village, city… or capital (any populated place) and beg for hay or a stack of straw.
When he gets a stack of straw he should retire into seclusion …… He should then
thoroughly clean that spot and make a bed of straw (Santhara) there. Now he should
occupy the straw-bed and observe itvarikafast (fasting for a predetermined period)."62
The predetermined period implies the period till the goal of disposing of Kasaya (anger,
ego, attachment and greed etc.) is accomplished or till Santhara is revoked.
When it is the ideal opportunity for somebody to perform santhara, he should ask
authorization from the religious pioneer. To begin with he should surrender adoration,
contempt and connections. He ought to ask his family and others to pardon him, and
ought to likewise excuse them. He additionally ought to sincerely admit his past sins;
then he ought to keep up the five incredible promises, the same as the homeless
people, and ought to peruse (study) the ordinance until his demise. Next he step by
step changes his eating regimen to dairy items, boiling water, and so on. At last, fasting
totally and recounting a mantra, he ought to dispose of his body.63 Santhara begins by
progressive fasting, checked out in strict agreement with formal solutions and under
the nearby supervision of a friar.
62

(Acaramga Sutra 8/6/225) (Flad-D).
Fasting unto Death- Holy Ritual or Suicide? By HOTTA Kazuyoshi (The University of Tokyo) - The 3rd
BESETO Conference of Philosophy, Session 8.
63

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It is prescribed under four conditions:
1. Upasarga – bondage by adversary, which makes the keeping of one's pledges
incomprehensible.
2. Durbhiksha - a starvation, where there is no real way to acquire satisfactory
sustenance.
3. Tara - old age. Powerlessness to walk or do anything without help.
4. Nitipratikaaraa Ruja-Terminal Illness in which demise is unavoidable and inevitable.
Samantabhadra shows reasons for this type of death is necessary:
“Upasargedurbhike, jarasirujyan ca nihipratikare\\
Dharmayatanuvimocanamahusallekhanamaryaha.\\”64
I.e. when faced with hurdles, famine, old age, or disease, one should for religion,
observe Sallekhana.
Further he states,
“AntakriradhikaranatapahafalamSakaladarshinhastuvate\
Tasmatyavadvibhavan Samadhimarana Prayatitanvyam\\”65
Toward the end of life when one achieves such demise, it is considered as the product
of tapa. That is the reason to achieve such a passing ought to be the goal of one's life.
Acharya Sivakoti once said-“one attains many lives if he cannot sustain a proper death
even if he regardless of the possibility that he in his entire life he works for Jnana,
darsana, caritra. However, then again if Santhara is sought after than the seeker
appreciates the delight.”
Upasakadhyayana- “a hopeful who is fasting and so forth and taking part in
considering keeping in mind the end goal to defeat interests, such a man ought to go
to the sangha and embrace Sallekhana.”66

64

Ratnakarandasravakacara (Shloka No. 122)
Ibid.
66
Samadhimarana (Santhara / Sallekhana) by Justice N.K. Jain.
65

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SANTHARA- SUICIDE? EUTHANASIA?
Santhara and its equivalent words are regularly mistaken for suicide or willful
extermination (euthanasia). These misguided judgments should be cleared up and
dispersed.
The definition and extent of Santhara must be plainly articulated. Neither quick unto
passing nor delayed fasting are the main alternatives under this practice. Santhara is
the way to achieve salvation at all conceivable number of birth and passing cycles
ahead by intentionally drudging to cleanse the spirit from karmas. As indicated by
Jainism, each individual soul, by its tendency, is immaculate and impeccable, with
weak recognition, information force and rapture. In any case, from forever, it is
connected with Karmic matter and has in this way get to be liable to birth and
resurrection in various types of presence. The incomparable object of religion is to
demonstrate the route for freedom of the spirit from the servitude of Karma. Santhara
is not surrendering life but rather it is particularly taking the passing in its own way.
Indian mythology is brimming with episodes when our Gods have ended their life. Lord
Ram took "Jalsamadi" in river Saryu. Lord Mahavira and Lord Buddha accomplished
demise by seeking for it. As of late Shri VinobaBhave67 met his end by undertaking
fast. So was the situation of Swami Ram Krishna Param Hans and MaaAnandmai.
The local deity god of Rajasthan 'RAMDEOJI" has taken living samadhi. Indian Saints
each year enthusiastically surrender the body. Cases are there where Jain saints have
ended their lives by going on fast, that is, by embracing the act of "Santhara". Shri
Raichand Bhai, religious master of Mahatma Gandhi took "Samadhimaran" at 33 years
old age.
1.1.

Santhara is not suicide

Santhara is not surrendering life, but rather it is especially taking the death in its own
step. Jainism believes in resurrection thus the results of our Karmas are needy upon
own great and awful contemplations, words and deeds.

67

Acharya VinobaBhave, one of the greatest Gandhians, stopped taking food and water from the 9 th Nov to 15th
Nov 1982, i.e. immediately before his death at Paunar Ashram in Maharashtra. The personal exhortations of the
then Prime Minister of India who met to persuade him on the 12th Nov 1982 and of Gandhian judges like Justice
Dharmadhikari, could not make him change his vow. Finally he died on the 15th Nov 1982. Though the word
Santhara was not used, what VinobaBhave did was not at all different from the Jain practice of Santhara.

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The ruler called Srenika frequently shows up in Jain stories. He was the contemporary
of Mahavira (Jainism's originator), and Buddhist writings called him Bimbisara. In his
last years, he was confined to the castle by his child, Ajatasatru. Buddhist writings are
dubious about the reason for his demise, however Jain writings express that he arrived
in hellfire by the wrongdoing of suicide. This story unmistakably demonstrates that
Jainism additionally denied suicide.
Additionally, in Santhara, no movement is included; it is only an instance of aggregate
abstention in the matter of encouraging. The individual does not find a way to kill the
body yet simply does not take care of it and subsequently the body, extra time,
consequently starves lastly stops to exist.
However another component of this eternal practice is that the level of composure and
separation ought to be to such an extent that the hopeful or entertainer, even in the
wake of taking the promise of Santhara, ought to neither wish for early passing or
drawing out life. A quote from Acaramga Sutra is given as under:-

It implies that the Saint undertaking Sallekhana ought to neither one of the wishes to
live longer or affected by illness, wish to pass on ahead of schedule. He ought to be
impassive both to life and demise. He ought to be in a condition of aggregate
composure, which transcends the desire to live or die.
It is specified in Shastras that a man who confers suicide will undoubtedly worst form
of Karmas and in his next life he would need to endure on that tally.
It is additionally imperative that no one can take Santhara or Sallekhana at a youthful
age by any means. For all intents and purposes all instances of santhara are at the
end of life, for the most part in the scope of age of 70s to 90s. In any case, if there is
a terminal ailment much prior, under the Jain sacred texts, such a man may maybe
experience Santhara at his will and volition.68

68

SANTHARA / SALLEKHANA by Dr. D. R. Mehta, Dr. K. C. Sogani, Dr. Kusum Jain and S. Bothra.

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Justice Tukol, a retired judge of Karnataka High Court in his book "Sallekhana is not
Suicide" addresses this viewpoint as under “I cannot agree with the view that this omission to take food is an act under the section
(309 IPC) because one of the principles of interpretation of a criminal statue is that it
should be strictly construed. There is no law which casts an obligation on every
individual not to fast because fasting is sanctioned by the most of the religions in India
as conducive both to physical and mental health, besides providing an opportunity for
worship and meditation. A fast undertaken on religious grounds causes no pain or
harm to anybody. Since, such fast is not directed against anybody, so as to cause him
mental pressure or anxiety, it cannot be regarded as a harmful act. Every fast which
is spiritually motivated exudes an atmosphere of tranquility, peace and piety about it.’’
He further says that - “Facing death in a war, knowing full well that death is the likely
result, is, applauded as heroism or virmarana dying for religion is called Martyrdom.
Facing death for a noble cause earns the title of a national hero or Savior. It cannot
therefore be disputed that death for a noble cause or end has always been hailed by
all nations, though under different designations”.
Further, the main psychological and physical features of suicide are – “The victim is
emotionally stressed and is overpowered by a sentiment of disrespect, loathing,
affront, contempt or trepidation and so on. The fundamental aim of committing suicide
is to get away from the result of certain demonstration or occasions identified with
disrespect, repugnance, affront, scorn or dread and so forth. TThis kind of intention in
case of suicide is far from religious or profound contemplation. The methods and
means utilized to commit suicide are weapons, poison, discharge, suffocating, hanging
and so forth and the death is sudden in the vast majority of the cases, unless the
casualty is safeguarded before. The act is submitted usually in mystery and therefore
causes wretchedness or mourning to kith kinfolk and others.” The largest numbers of
the persons committing suicide are in the age group of 30 to 44 years.69
None of the conditions is satisfied in the case of Santhara. Hence, Santhara cannot
be treated as suicide.
1.2.

69

Santhara is Reversible

The National Crime Record Bureau, Ministry of Home Affairs, Government of India (2013).

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As indicated by the Jain convention, the practice has been taken after right from
Rishabhadeva, the first Tirthankara. All the 23 next Tirthankaras, including Mahavira,
the last Tirthankara, attempted Santhara. The performer or the aspirant can surrender
his santhara vow.
The Gatha 232 of Acaramga Sutra states-

“If an ascetic observing Sallekhanapractices gets sick, unconscious, or dizzy due to
lack of food and nutrition, he should stop rigorous austerities, terminate
Sallekhanaprocess and accept food.”70

1.3.

Santhara is not Euthanasia

The most imperative recognizing highlight between Santhara and willful extermination
is that, euthanasia is mainly motivated by physical reasons i.e. to dispose of the
physical agony and enduring. Unexpectedly, the fundamental reason for Santhara is
otherworldly i.e. the cleansing of soul. It is a procedure of cleaning ones soul through
Tapas or Penance, which prompts honorable end of this life and profoundly wealthier
start of the following life.
Also, Bhagwati Aradhna classifies Santhara into two main categories, i.e., internal and
external. Internal Santhara is to slowly minimize or diminish the four Kasaya (anger,
attachment, ego and greed) whereas, external Santhara refers to slow detachment
from body.
It is underlined that the external santhara is of no quality, in the event if it is not practice
with the internal santhara. The external and internal santhara are indistinguishable
and composite in entirety. However, in euthanasia, immaculateness of soul or purging
of interior mental state or fortifying of other good virtues are given no thought by any
stretch of the imagination.
The relevant excerpts from Bhagawati Aradhana and Sagaradharmamrta are
mentioned as-

70

Acaramga Sutra, translated by Shri Amarmuni, p. 444.

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The choice to start santhara and the subsequent method, in point of interest, rests
totally with the entertainer; it is a simply deliberate act. Sarvarthsiddhi vehemently
expresses that no outside organization or individual can drive anyone to attempt
santhara.

LEGAL VALIDITY
Article 25 of Constitution of India 1950, guarantees every Indian citizen has a
fundamental right to profess and practice his religion freely.This right is subject to
interests of health, public order and morality. Any law which curtails the freedom
guaranteed by the Constitution cannot have the sanctity of law and the same would
be unenforceable by any authority or in any court of law.
It is submitted that the practice of santhara does not interfere with public order, health
or morality. Santhara is zenith of radiance of life and demise. It is not an immolation
but rather advancement of soul. It is not a tragedy. Article 26 lays down that every
religious denomination or any section thereof shall have the right to manage its own
affairs in the matter of religion.

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An individual right to practice santhara is also safeguarded by right of privacy. This
practice of santhara has been prevalent from time immemorial and was also taken in
consideration by Privy Council in the year 1863.
The privilege is additionally ensured under Article 29 of the Constitution of India. It
can't be denied that the minorities have their own particular society and in this manner
any area of the natives dwelling in the domain of India having society of its own has
the privilege to conserve the same.
In the case of The Commissioner, Hindu Religious Endowments, Madras v/s Sri
Lakshmindra Thirtha Swamiar of Sri Shirur Mutt71, The Seven Judges
Constitutional Bench of the Hon’ble Supreme Court headed by Chief Justice Mahajan,
stated that- “Religion is a matter of faith with individuals or communities and it is not
necessarily theistic. There are well known religions in India like Buddhism and Jainism
which do not believe in God or in any Intelligent First Cause. A religion undoubtedly
had its basis in a system of beliefs or doctrines which are regarded by those who
profess that religion as conducive to their spiritual wellbeing, but it will not be correct
to say that religion is nothing else but a doctrine or belief. A religion may not only lay
down a code of ethical rules for its followers to accept, it might prescribe rituals and
observances, ceremonies and modes of worship which are regarded as integral parts
of religion, and these forms and observances might extend even to matters of food
and dress.’’
Hon'ble Supreme Court in Smt. Gyan Kaur v. State of Punjab72 stated that, “a
question may arise, in the context of a dying man, who is, terminally ill or in a persistent
vegetative state that he may be permitted to terminate it by a premature extinction of
his life in those circumstances. This category of cases may fall within the ambit of the
'right to die' with dignity as a part of right to live with dignity, when death due to
termination of natural life is certain and imminent and the process of natural death has
commenced.”

71
72

AIR 1954 SC 282.
JT 1996(3) SC 339.

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It is hence derived out that freedom of religion in the Constitution of India is not kept
to religious beliefs only; it reaches out to religious practices and is also subjected to
the limitations which the Constitution itself has set down.
CONCLUSION
It can't be denied that Jains have their own particular society and along these lines
any segment of the natives living in the domain of India having society of its own has
the privilege to monitor the same. The Jain people group is a religious minority group,
furthermore, it is a social minority and in this way it is the order of the Constitution that
the State shall not impose upon it any other culture which may be local or otherwise.
The State has no power to coerce Sadhak who has taken the vow of santhara. In
terms of statistics, santhara is embraced both by men and women of every single class
and among the instructively forward Jains. Santhara is thought to be a presentation of
most extreme devotion, decontamination and reparation. Religious and philosophical
convictions assume an essential part in the social acknowledgment of ceremonies like
santhara. For Jains, as additionally for Hindus, for example, the ideas of moksha and
resurrection are connected to the nature and nature of death. The motivation behind
santhara is to purify the soul, set it up for resurrection and, by picking demise through
this technique, turn into the determiner of the following birth. The idea of a wonderful
demise as the ideal end to this life and the perfect start of the following is founded on
philosophical, otherworldly and religious fundamentals. Yet, it is unrealistic to survive
legal examination under the current legitimate structure. The main trust in santhara, it
appears, lies in decriminalization of suicide and lawful acknowledgment of willful
extermination.

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ACCESS TO JUSTICE
PARIDHI AGAR
GOVERNMENT LAW COLLEGE, MUMBAI

ABSTRACT
The article aims at analysing the concept of “Access to Justice” with reference to the
Indian democracy. The article commences with an introduction giving essence of the
intended paper. An attempt is made to explain the “Access to Justice” by throwing light
on it from different angles. Moving ahead the paper contemplates a brief overview of
the constitutional provisions and judicial innovations in the course of time promoting
the access of justice to everyone. The article also discusses the International
declarations which emphasize the importance of the said principal. The article
delineates the quintessential obstructions in the path of access to justice. The paper
further proposes certain recommendations to mitigate the inconsistencies underlining
in the present legal system to achieve the said goal. The article is concluded with an
attempt to elucidate the author’s stand on the subject “Access to Justice”.
INTRODUCTION
Every society strives to achieve a life with dignity and liberty to all its members.
“Access to Justice” to every member of society is a prerequisite to accomplish its said
goal.
“Access to Justice” is not merely confined to the right of every person to have
an access to the court of law; it is a broad concept comprising of the other
important facets also like Legal aid, Legal awareness, Adequate number of
courts, Efficient justice delivery system, Independent judiciary, Right to be
governed by equally applicable legislations, Right to equally avail the benefits
of the executive policies etc. The concept is wide enough to cover all the formal and
informal means to achieve a just equilibrium in the society.
In a progressive democratic state like India assuring access to justice to all its citizens
is indispensable to secure the stability and success of the nation. "Access to justice"
as a human right concept of ancient vintage was not unknown in Ancient India. The

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idea of Dharma which was all pervasive included within its sweet the concept of access
to justice.73 In ancient India, 'state was not sacerdotal, nor even paternalistic'. "The
concept of "Dharma" was multidimensional and it was something which sustained
humanity in all its facets and coherence. So within the broad sweep of Dharma comes
both human rights and law."74
Even post-independence the legislation was drafted in a manner to make the justice
reach to the lowest strata of society. To become a developed nation from a developing
one; the development is not enough to be assessed materialistically, what is more
necessary is to realise a socially developed nation. And to become socially developed
the principal of access to justice plays a vital role.
In a nutshell, Law and Order are the basis of the functioning of a democracy which
means an efficient legislation, its effective execution and an independent, efficient and
effective adjudication of the grievances and wrongs arising out of the former ones.
Access to Justice as already explained is wide enough to embody all the three aspects
majorly in its meaning; becoming paramount to successfully run the country.
ROLE OF THE CONSTITUTION AND JUDICIARY:
The brilliantly drafted provisions of the Indian Constitution ensuring Access to Justice
to its citizens at each and every step makes evident the importance held by the said
concept in the minds of the constitution framers.
The Preamble of the Constitution which is a key to open the minds of framers of the
Constitution75 itself demonstrates how much importance “Justice” holds in the Indian

democracy. It aims to provide Justice, Social, Economic and Political broadly
embracing all the facets of life ensuring a just life to each and every citizen.
Art. 14 which guarantee equality before law and equal protection of law to every
person provide a platform to raise voice for justice equally to everyone irrespective of
their background. Judges have widen the scope of Art. 21 through their liberal

73

Chief Justice P.B. Gajendragadkar, Historical Background and Theocratic Basis of Hindu Law II THE

CULTURAL HERITAGE OF INDIA 414.
74

Supra.

75

(1960) 3 SCR 250

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interpretations making the Access to Justice a Fundamental Right available to
everyone as a part their Right to Life. Art. 22(1) and Art. 22(2) specifically ensure the
access to justice to the arrested persons and who are detained in custody. The right
to enforce these Fundamental Rights itself has been made a Fundamental Right under
Art. 32 which provides a right to move to the Supreme Court for enforcing
Fundamental Rights in the form of writs.
The Supreme Court endeavours to realise the availability of justice and legal
assistance to everyone not merely because of the mandate on them through the
Preamble and the Fundamental Rights but also because the socio-economic
guidelines enshrined in the constitution demand so. The Supreme Court assists to
promote the welfare of people by securing a social order in which justice, social,
economic and political, shall inform all the institutions of the national life. 76 Also to
comply with the direction of operating legal system to promote justice, on a basis of
equal opportunity, and to provide free legal aid to ensure the access to justice is not
denied to anyone by reason of economic or other disabilities.77
Art. 226 of the constitution provide a right to move to the high court for the enforcement
of any legal right apart from Art. 32. Thus the constitution makers have widen the road
enough to obtain justice by enshrining this article in the National Charter.
Whenever a wrong is committed only the person who is wronged had the right to sue;
which deprived many poor people of justice. The Supreme Courts and the other courts
of the country remedied the situation by opening a complete new facet in legal system
through evolution of Public Interest Litigation relaxing the provision of locus standi.
This judicial activism served justice to the doors of many backward classes of society
viz. Women, Children, STs, SCs, and Poor etc. by enabling the social action groups,
the legal aid societies, university teachers, advocates, voluntary organizations and
public-spirited citizens to file cases on behalf of the deprived sections.
In Fertiliser Corporation Kamgar Union v. Union of India, Krishna Iyer J stated:
“In simple terms, locus standi must be liberalized to meet the challenges of the time.
Ubi Jus ibi remedium must be enlarged to embrace all interests of public minded

76

India Consti. Art. 38

77

India Consti. Art. 39

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citizens or organizations with serious concerns for conservation of public resources
and the direction and correction of public power so as to promote justice in trinity
facets.”78
Emphasizing the importance of widening the access to justice, the Hon'ble Supreme
Court in Bar Council of Maharashtra v. M. V. Dabholkar, ruled that the apprehension
that widening the access may unloose a flood of litigation is a misplaced one. On the
other hand, the Court found that public resort to Court in greater numbers is a tribute
to the justice system.79
Whenever Legislatures and administrative authorities draft and execute respectively
in contradiction with the constitutional philosophy, by exercising the Power of Judicial
Review; which is also termed as the basic feature of the Indian Constitution 80(hence
immunising it from amendment by the parliament) the courts have safeguarded the
rights of citizens whenever requires. Judicial Review and PIL are vehicles provided by
the Indian Judicial System to its citizens which are continuously facilitating their
journey to access justice.

INTERNATIONAL PERSPECTIVE ABOUT ACCESS TO JUSTICE:
The said principal holds vital importance in the functioning of a nation even according
to the International Bodies and has been underscored expressly or impliedly in the
International Charters. The Universal Declaration of Human Rights, 1948 also
enshrines provisions giving recognition to the right to access justice, which can be
stipulated as follows:

Art.6: Everyone has the right to recognition everywhere as a person before the
law.

Art.7: All are equal before the law and are entitled without any discrimination
to equal protection of the law.

78

(1981) AIR SC 344

79

(1975) 2 SCC 702

80

(1973) 4 SCC 225

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Art.8: Everyone has the right to an effective remedy by the competent national
tribunals for acts violating the fundamental rights granted him by the
Constitution or by law.

Art.10: Everyone is entitled in full equality to a fair and public hearing by an
independent and impartial tribunal, in the determination of his rights and
obligations, and of any criminal charge against him.

Art.21: (1) Everyone has the right to take part in the government of his country,
directly or through freely chosen representatives.
(2)Everyone has the right of equal access to public service in his country.
There are also provisions in the International Covenant on Civil and Political
Rights, the European Convention and other regional conventions recognizing
the importance of the right of access to impartial and independent justice.

OBSTRUCTIONS IN THE PATH OF ACCESS TO JUSTICE:

Expensive:

The legal consultation fee charged by lawyers today is so large that an efficient legal
advice isn’t at all in the reach of common man’s pocket. They prefer bearing the
damages silently than to spend their hard earned money in the expensive legal
proceedings. Sometimes the litigants end up spending more money throughout
the legal proceedings viz. legal consultation fee, stationary charges, court fee
etc. as compared to the outcome of those proceedings.
The expensive legal consultation often lead people to enter into the contracts,
conducting transfers of money and properties and other small day to day legal affairs
on the basis of their own understanding and knowledge. At times the partnership
deeds and agreements are even drafted by the Chartered Accountants and Company
Secretaries, merely because of the huge legal charges. These drafting and transfers
mostly result in violation of legal provisions, conflict of interest and rights of the
contracting parties leading to a flood of suits in the courts in fine. Had there been
availability of an affordable legal advice at an initial stage for such legal affairs,
common man would not substitute his own layman understandings in place of an
efficient legal knowledge.

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Though charging of court fee for institution of suits is to keep a check on the vexatious
litigation. But sometimes it obstructs certain poor classes and drives away the honest
petitions resulting in the inability to access courts just due to financial issues.

Technicalities And Time Consuming:

The whole legal procedure commencing from the institution of a suit to the execution
of final decree is inculcated with procedural formalities and non-observance of these
technicalities generally result in the dismissal of suit irrespective of the merits. The
compliance with such cumbersome procedure both by the judges and litigants delays
the reach to justice.
The procedure being highly technical and time consuming discourages
common man to fight for his rights. For him it’s wiser to work harder at office to
make up for the losses instead of rounding around the court rooms and losing
money, time and peace in life for uncertain period of time.

Inadequate Legal Awareness:

It is not only the illiterate population of the country which lack at legal knowledge but
also the literate class is unaware of their legal and fundamental rights and the
availability of legal provisions for their protection.
The mentality of people today is that the access to justice is time consuming;
who will spend years to obtain such small relieves, because they are unaware
of the provisions of interim and ad-interim relief. It is so expensive to seek a
legal representation by an efficient advocate today; better I bear the damages,
because they are unaware of free legal aid services. By their common sense
they may refrain themselves from committing any wrong, but how to proceed
when the same wrong is committed against them. Here the role of legal
awareness comes into play and unfortunately we lack here even after being rich
with excellent legislative enactments.
It is easier to gain a strong general knowledge by reading newspapers and journals
but to become legally aware is not in the reach of every man.

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Negative Impact in the Minds of People:

Today judiciary is seen by people as trapped under the cloud of back logs,
briberies, technicalities, costly affair etc. Neither anyone wants to see nor
anyone want to show the judicial developments for instance PILs, Judicial
Review, Judicial Activism, Fast track courts, Free legal aid etc. which have taken
place during the course of time.
The expression or publication of altercations or differences between the stakeholders
of judiciary in public without discerning them properly is one of the major reasons of
people losing confidence in judiciary. Such disagreements need to be ironed behind
closed doors instead of making it a headline of every news agency.
The common human brains are filled up with so many myths regarding judiciary that
their eyes are unable to see the bright light of judicial assistance available to them. It
is high time that we start recognizing the importance of judiciary in our democratic
setup and also the enormous sincere efforts put forth by the harbingers of justice to
make the access to justice a reality for everyone.
PROPOSED SOLUTIONS:

Alternate Dispute Resolution and Community Participation:

Access to justice is not limited merely to an access to courts, its ultimate aim is
to provide just and rightful life to everyone through any means whether formal
or informal. In today’s era where the judiciary is already overburdened with
pending litigation, it is highly required to promote the informal means of dispute
resolution viz. Arbitration, Mediation, Conciliation etc. The evident success of
these methods in cities like Mumbai, Ahemadabad, Chennai etc. by speedy and just
disposal of disputes has gained it a huge popularity and support by judges, advocates
and also by litigants. And it is need of the hour to work for the development and
adoption of these methods in other cities of the country.
Some disputes do not require extraordinary legal knowledge and skills to reach a
solution. They can be solved by an intelligent class through their customary, religious
and traditional practices in a particular locality, caste or community. These disputes

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are more about conflict of views and interests which if not resolved at an appropriate
time result in commission of crimes and disturbance of peace due to fights leading
from brains to hands. It is sometimes not even possible for some groups to knock the
doors of court may be due to financial crunch, lack of knowledge or mere inadvertence.
For such situations it is best in the interest of common man to promote informal dispute
resolution schemes at grass root levels like regional, communal etc. Nyaya
Panchayats and Lok Adalatas are highly commendable steps taken in this direction,
but the society needs more such endeavours. Certain communities also have their
own caste panchayats to resolve disputes among its members. If all such private
dispute mechanisms of societies are brought together along with new groups also to
be formed for representing those who are unrepresented and provided with trainings,
assistance and guidance through a committee of efficient legal personals; this can be
an answer to a huge number of disputes and protection to the rights of the weaker
classes of society. Incorporation of culturally acceptable views as far as they are
justifiable into formal legislation will strengthen the confidence and acceptance
of law and order by common people.

Independent and Efficient Judiciary:

Independent and efficient judiciary are crucial for the success of legal system in a
country.
To bring the concept of justice to a reality, a judge needs to be above fear and favour.
A judiciary independent from any kind of external interference and biasness is vital to
function independently and efficiently. Whether it is the concept of Rule of Law,
Principles of Natural Justice or Theory of Separation of Powers; all aim at making
judiciary an independent institution. The Indian Constitution has also in its Directive
Principles enshrined the principle of independent judiciary and states that a state shall
endeavour to ensure a separate functioning of Judiciary from Executive. 81 Our
Supreme Court has held in more than one judgment that the independence of the
judiciary at all levels is part of the basic structure of the Indian Constitution.82

81

Indian Constitution. Art. 50

82

Shri Kumar Padma v. UOI 1992 (2) SCC 428(India) and UOI v. Prathiba Bannerjee 1995 (6) SCC 765(India)

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Favouritism while adjudicating affects the independence of judiciary and
favouritism while appointing the Judges affects the efficiency of judiciary.
Increase in the salary of judges, better service conditions, regular trainings of
judges, encouraging young talent to contribute for improvement of judicial
system etc. are some steps which should be taken to ensure independence and
efficiency of judiciary.

Availability of Courts:

Access to justice includes access to courts. Despite of good disposal rate and hours
of hard work, the judiciary is always laden with bad reputation of being overburdened,
slow and lethargic behaviour of judges. The actual reason behind it is the inadequate
number of courts and judges.
The state needs to have an adequate number of courts manned by qualified and
efficient judges to achieve the goal of justice for all. It is well-known that the Law
Commission of India had stated in its Report in 1988 that we in India have only 10.5
Judge per million population while countries like US and UK and others have between
100 to 150 per million population. The Hon’ble CJI T.S. Thakur has continuously been
raising the issue of inadequate number of courts and judges to adjudicate and for a
competent legal system in the country.
For better protection of rights and to clinch uniform system to redress grievances state
continuously comes up with new legislative enactments creating new civil rights and
obligations and criminal offences; which increases the number of cases before courts.
Mere enactments are not a way to protect rights, they need to be executed properly
and grievances arising should have a redressal platform. Thus, Judicial Impact
Assessment should be carried on before enacting any legislation estimating the
number of prospective cases, financial and logistic burden which is going to be the
outcome of the legislation. A compulsory Judicial Impact Assessment should be
conducted to successfully achieve the object of the legislation. Availability of courts
doesn’t merely mean availability of judges to adjudicate; it includes a complete
courtroom with infrastructure and administrative staff to ensure regularised
functioning. For some cases it won’t be wrong even to say that a court free from
technicalities. Tribunalization as a growing trend in country is a boon for speedy

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disposal of specific disputes by a bench possessing special skills for the same without
observing the procedural formalities strictly. Tribunalisation should be promoted and
provided support to grow.

Providing Legal Assistance:

“Legal aid is not a charity or bounty, but is a constitutional obligation of the
state and right of the citizens”.83
If legal assistance is made available to people at the very outset of any act relating to
law, this can be saviour from cumbersome legal proceedings later. Consultation
quicks should be promoted.
In Hussainara Khatoon v. State of Bihar, Justice Bhagwati declared: “legal aid is
really nothing else but equal justice in action. Legal aid is in fact the delivery system
of social justice. If free legal services are not provided to such an accused, the trial
itself may run the risk of being vitiated as contravening Article 21 and we have no
doubt that every State Government would try to avoid such a possible eventuality”. 84
Along with legal practitioners, the budding law students should be involved in
the process of providing free legal aid. Budding law students are one of the best
resources to make the assistance reach at every door step and also on the other hand
preparation of a strong base for future legal talent.

Legal Education and Awareness:

There can be no justice if there is no awareness about how to achieve justice;
when you are deprived of. Legal awareness is something which does not even find
its existence in the literate class of society; hence the question of illiterate class even
be aware of any such thing doesn’t even comes up.
The whole society should be taught and given guidance about the rights available to
them, remedies on their infringement, importance of the law in their life through the

83
84

M.H. Hoskot v. State of Maharashtra AIR 1978 SC 1548
(1980) 1 SCC 81

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help of legal practitioners, law students, and the most popular platform in 21 st century
the Mass Media.
Legal Education and Awareness is one of the best tools to ensure the Access to
Justice to everyone.

Effective Execution of Policies:

Improper execution of the policies framed by state to achieve the welfare state is
responsible for suits claiming damages in the form of tortuous and contractual liability
of state, writs for causing the court to direct state agencies to function in consonance
with the constitution etc. If looked at the root cause of enormous number of such suits,
it is the improper discharge of functions by executive authorities. Thus, emphasis
should be laid on an effective implementation of the policies by the executive and
administrative authorities reducing the conflicts as well as providing better protection
of rights.
Mr. M.C. Setalvad, the Chairman of the first Law Commission in Independent India in
his Report on Legal Aid submitted in the year 1958 has also observed regarding the
role of legislation: "In so far as a person in unable to obtain access to a Court of law
for having his wrongs redressed justice becomes unequal and laws which are meant
for his protection have no meaning and to that extent fall in their purpose."
The justice sector suffers from the executive evils like custodial torture, inhumane
condition of prisons, cumbersome pre detention trials, gender based and sexual
violence, corruption, non- observation of principals of natural justice etc. Such
challenges are serious threat to the society in providing access of justice to everyone.
Hence, the executive and administrative authorities should realise the importance of
their role on the national and social front as these are such evils which can only be
eradicated at their own instance. Government should also endeavour to establish strict
supervisory bodies over executive authorities.
CONCLUSION
The topic of access to justice; as attempted to explain above makes it evident that it
is so wide enough and a continuous subject that every new attempt to analyse it will

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expose us to a new dimension. The mode to achieve the goal in it’s entirety may be
analysed as comprehensive of following aspects:
1. Detection of barriers: The first and foremost step required to be taken is to
find out the reasons underlying the society hindering its members from
exercising their rights and pursuing claims.
2. Elimination of barriers: A mechanism to be employed to eliminate the
hindrances right from their roots facilitating a smooth road to access justice to
the members of society.
3. Encouragement of the Principal: A systematic approach to be adopted to
encourage the members of society to fight for justice. The eliminative measures
and the positive promotional measures go hand in hand to successfully provide
access to justice to everyone.
4. Ensuring fair and efficient outcomes: Effect the whole justice delivery
system with fairness and efficiency emerging with just and equitable outcome.
The success of functioning of any system can be best described by this Gandhian
philosophy i.e. any system adopted for betterment is as strong as it is capable of
protecting the weakest. Hence, Access to Justice being one of the fundamentals
for a successful democracy should adopt this philosophy in its spirit. The nation
has come a long way in it’s struggle of assuring justice to all and the bright light of
success is not distant if all the pillars of democracy are going to contribute to their
best to achieve the noble goal “Access to Justice” to everyone.

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ARMED FORCES (SPECIAL POWERS) ACT
PHILIP JONATHAN P
CMR LAW SCHOOL
INTRODUCTION
The valley of Kashmir, Praised highly as “The Paradise on Earth”, is surrounded by
mountains. The people of Kashmir consider these mountains as their guardian and
protector, who allowed various religions and culture to come into the valley and settle
down.
One after the other Kashmir became the home for Buddhist, the dwelling place for the
teaching of Vedanta and the center of lslam.
After the Buddhist and Hindu Rajas, Kashmir was ruled by the sultans, moguls,
Afghans, Sikhs and the Dogras.
Different dynasties brought different culture and religions to Kashmir. The simple and
peaceful people of Kashmir accommodated with different trends and culture of
different dynasties.
Hinduism, Buddhism and Islam together made a significant impact on the life of people
in Kashmir.
This coexistence signified Kashmir to live in harmony for centuries. The people of
Kashmir call the valley as “Pirwaer” and “Rishware”(Sufis and Rishis).
Thus, the land emerged out of the lake came to be known as Kashyapa Mar, later as
kashmira and now as Kashmir (Year 1972).
In Hindu mythology, Kashmir has a firm place to go beyond mahabarata and Hindu
rules and played a significant role in the history of Kashmir.
From 5th century to about 12th century, Kashmir was characterized by hindu civilization
and shavaite culture. During this period of karkotas, Kashmir developed a humantistic
philosophy of his own known as kashire shaisvism.
King Lalitadiya a follower of hindu religion, he showed due respect to Buddhism and
built many Buddhist monasteries and stupas.
Asoka conquered Kashmir in about 250 BCE and him Buddhism got established in
Kashmir. Buddhist philosophy attached the Brahmins of Kashmir and they became
great followers of Buddhism. Some became its missionaries to preach new faith.
Buddhism stayed in Kashmir for about 9 centuries. Shaivism and Buddhism together
brought art, culture, and knowledge to Kashmir. Their philosophy were on peak in
Kashmir until Isalm came to Kashmir.
Islamic culture came to Kashmir gradually. A notable change in the religious
demography of religious trend in Kashmir.

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5 WAYS THAT ISLAM CAME INTO KASHMIR




Animosity and internal corruption in the Brahmanical and Buddhist traditions.
Sever socio-economic and political deterioration of Kashmir in the last years of
hindu rule.
Continued efforts of immigrant sufi masters to spread their faith
Emergence of an electic and elsily reached folk version of Islam.
Sever intolerance of some of the early Muslims Kings.

HISTORY OF KASHMIR DISPUTE
1947: August 14/15th, British India is partitioned into India/Pakistan as part of the
independence process. Majority Muslim areas in the west (now all of Pakistan) and
east (the place called Bangladesh) Pakistan. The British also allow the nominal rulers
of several hundred “pricely states”. The tax collectors of British decided whether they
wanted to join India or Pakistan. Pakistan demands Kashmir to it. The Hindu ruler of
Kashmir does not make a choice. Kashmir has 3 major ethnic areas:a. Lakdakh in the northwest(Majority Buddhist)
b. The Kashmir valley(controlled by India)
And part now controlled by Pakistan (Muslim majority)
c. Jammu(majority Hindu)
1948: India takes the Kashmir to the U.N Security Council, which passes a resolution
calling on Pakistan to do all it can “secure withdrawal” of Pakistan citizens and
“tribesmen” and asking that a Plebiscite be held to determine the wishes of the people
of Kashmir. Neither the fore withdrawal nor the plebiscite has taken place.
1962: India/china fight a border war. China occupies a part of Ladakh.
1965: India/Pakistan fight a border war along the Indian West Pakistan border and the
line of control in Kashmir.
U.N. Brokered cease fire and withdrawal to pre-war lines affirmed by the leaders of
the two countries at a 1966 summit meeting in Tashkent,USSR(Uzbekistan).
1970 – 1971: An election in east/west of Pakistan results in an overall majority of an
East Pakistan party, which is mainly called Bengali. The Pakistani military refuses and
Guerilla warfare ensues about 10 million refuges steam into India from East Pakistan.
India also provides sanctuary to Bangladeshi Guerillas.
India strikes back in West Pakistan and also intervenes in the east on the side of the
Bangladeshis.
In between India/Pakistan U.S in a “tilt” towards Pakistan sends nuclear armed aircraft
carrier, where Pakistan losses the war on both fronts and Bangladesh becomes
independent.

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Sep 11th 2001: Well-known tragic events in United States. Terrorist attacks, kill about
3000 people.
Oct 1st 2001: A terrorist attack on the Kashmir state legislature in Srinagar, 38 people
are killed.
Oct 7th 2001: U.S launches a war in Afghanistan, war on terrorism, President
Musharraf becomes a U.S ally and allows Pakistan to become a base of operations
for the United States.
“Al-Qaeda, Taliban and their supporters in Pakistan feel severe pressure.”
Dec 13th 2001: A terrorist attack on India’s parliament 14 people (including 5 attackers
well as security guards and 2 civilians) are killed.
India mobilizes and moves thousands of soldiers to the border with Pakistan, including
the line of control in Kashmir, the danger of conventional and nuclear war rises.
May 14th 2002 – early Sep 2002: A terrorist attack on families of Indian service men.
More than 30 people killed. India threatens to retaliate. Pakistan makes implied threats
of nuclear weapons use in case of Indian attack.
There was peak conventional about use of nuclear weapons. Greatest threat of
nuclear war since the urban missile crisis of 1962.
May 2nd 2003: India and Pakistan restore diplomatic ties.
July 11th 2003: Delhi – Lahore bus services resumes.
Sep 24th 2004: Prime Minister Man Mohan Singh and President Musharraf meet in
New York during U.N general Assembly.
July 2006: Second – round of Indo-Pakistan peace talks.
July 2010: Following the killing of a young Kashmiri Tufail Ahmad Matto, Protest
demonstrations continue in Kashmir for months.
The military wing commanded by Burhan Muzaffar Wani was a commander of the
Azad Kashmir based Hizbul Mujahidun. “New age military” by Wani, It has been
designated as terrorist organization. It has recruited local youths, educated and middle
class, who are convent with social media and not afraid of their identities. They have
achieved a immense popularity among the Kashmir population. He was popular
among the Kashmir’s due to his activity on social media and had issued many photos
and videos on social media against Indian rule in Kashmir. He was killed in an
encounter with the Indian Security Force on 8th July 2016. Wide spread protest have
erupted in the Kashmir valley, more than 60 people have died while over 4500 civilians
and more than 3000 security personnel have been injured.
The violence which erupted after his death had been described as the worst un rested
in the region since the 2010 Kashmir begin placed under 40 consecutive days. The
situation in Kashmir entered a period of “amplified instability”. Protests had been

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demonstrating against his killing and continuous incidents of stone – pelting have been
reported.
July 2016:









Protests erupted in some areas of Kashmir valley.
Restriction were imposed in south Kashmir during night.
Internet services were cut.
3 day Shut down in Kashmir
Violent clashes broke out in response to killing on 9th July in some areas.
Over 20 police stations were attacked by mobs who stole weapons from the
stations and fired upon the security forces.
BJP office was destroyed.
Stone Pelting was reported on the street of Kashmir.
Train services and the pilgrimages to amaranth temple were suspended.
Board exams were postponed.

Over 200 people were injured and 11 protests were killed. By July 10 th, more than 20
were confirmed to have died during the violence. 300 CRPF personnel have been
injured, the vehicles, building belonging to security forces attached during the day.

ARMED FORCES [SPECIAL POWERS] ACT
AFSPA are Acts of the parliament of India that grant special powers of the Indian
Armed Forces in what each Act terms “disturbed area”.
One such act passed on September 11th 1958 was applicable to the Naga hill., then
part of Assam. In the following decades it spread, one by one to the other seven sister
states in India’s northeast. Another one passed in 1983 and applicable to Punjab and
Chandigarh was withdrawn in 1997, roughly 14 years after it came to force. An Act
passed in 1990 was applicable to Jammu and Kashmir and has been in force.
Some politicians of congress have advocated revocation of AFSPA. While other
parties are against its revocation.
THE ACTS
The article in the constitution of India empower state government to declare a state of
emergency due to one or more of the following reasons:


Failure of the administration and local police to tackle local issues.
Return of securities forces leaders to return of miscreants/erosion of the “Peace
divided.”
The scale of unrest or instability in the state is too large for local forces to
handle.

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In a civilian setting, solider have no legal tender and are still bound to the some
command chain as they would be in a war theater. Neither the soldiers nor their
superiors have any travelling in civilian’s law and policy procedures. This is where and
why the AFSPA comes to bear to legitimize the prune and acts of armed forces in
emergency situations which have been deemed war – like.

ACCORDING TO AFSPA, IN AREAS THAT IS PROCLAIMED AS “DISTURBED”,
THE ARMED FORCE HAS POWERS TO:

After giving such due warning, fire upon or use other kinds of force even if it
cause death, against the person who is acting against the law or order. In the
disturbed area for the maintaince of public

Minimum of three months, according to The Disturbed Areas (Special Courts) Act,
1976.
WHAT ABOUT THE STATE GOVERNMENT’S ROLE?
The state governments, as in Tripura’s case, can suggest whether the Act is required to be
enforced or not. But under Section (3) of the Act, their opinion can still be overruled by the
governor or the centre.

IS THE ACT UNIFORM IN NATURE?
No. Originally, it came into being as an ordinance in 1958 and within months was
repealed and passed as an Act. But, this was meant only for Assam and Manipur,
where there was insurgency by Naga militants. But after the northeastern states were
reorganized in 1971, the creation of new states (some of them union territories
originally) like Manipur, Tripura, Meghalaya, Mizoram and Arunachal Pradesh paved
the way for the AFSPA Act to be amended, so that it could be applied to each of them.
They may contain different sections as applicable to the situation in each state.
WHAT IS THE STATUS OF JAMMU AND KASHMIR?
Jammu and Kashmir has its own Disturbed Areas Act (DAA) a separate legislation
that came into existence in 1992. After the DAA for J-K lapsed in 1998, the government
reasoned that the state can still be declared disturbed under Section (3) of Afspa.
WHAT ARE THE ARGUMENTS FOR AFSPA?
The army is opposed to the withdrawal of Afspa. Many argue that removal of the act
will lead to demoralising the armed forces and see militants motivating locals to file
lawsuits against the army.

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ARMED FORCES SPECIAL POWERS (ASSAM AND MANIPUR) ACT, 1958
The Armed Forces (Assam and Manipur) Special Powers Act, 1958 empowered only
the Governors of the States and the Administrators of the Union Territories to declare
areas in the concerned State or the Union Territory as 'disturbed'. The reason for
conferring such a power as per "Objects and Reasons'" appended to the Bill was that
"Keeping in view the duty of the Union under Article 355 of the Constitution, inter alia,
to protect every State against internal disturbance, it is considered desirable that the
Central government should also have power to declare areas as 'disturbed', to enable
its armed forces to exercise the special powers". The territorial scope of Act also
expanded
to
the
five
states
of
the
North-East
Assam,
Manipur, Meghalaya, Nagaland, Tripura, Arunachal Pradesh and Mizoram. In addition,
the words "The Armed Forces (Assam and Manipur) Special Powers Act, 1958" were
substituted by "Armed Forces (Special Powers) Act, 1958", getting the acronym of
AFSPA, 1958.
Recently the Tripura state government has decided to withdraw the controversial act,
citing significant reduction in the extent of terrorist activities in the state. In June 2015,
after review, the AFSPA in Nagaland state was extended by one more year.

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PSYCHOPATHY: WHETHER THE CRIMINAL LAW RESPONSE TO
PSYCHOPATHY IS JUST AND PRACTICALLY SOUND?
PRIYAMVADA PRIYADARSHINI AND NAMAN VERMA
DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY, LUCKNOW

ABSTRACT
The last couple of decades have seen an exceptional development in writing and
biological researches on psychopathy, a mental infirmity or turmoil frequently
described by vicious conduct took followed by absence of regret or guilt. The present
study will attempt to draw out the significance of having laws which gives clarity and
transparency by providing an indication of the approach to be adopted while
determining the criminal liability of the psychopaths. There has already been lot of
controversy about the incompatibility of laws on insanity and other mental health laws
which the Court of law of this country follows. Psychopaths are victims of their own
minds and therefore it is important to perceive psychopathy as an ailment.
Psychopaths per se are not criminals rather psychopathy is a disease. In this regard
the most widely recognized inquiry which has been raised amongst the psychological
specialists is the issue as to how far the psychopaths should be held both criminally
and morally responsible for their actions since they lack control over their activities. At
the same time they lack the ability to comprehend as to why a particular act is wrongful
furthermore they do not understand moral wrong and are unable to grasp rewards and
punishment. It is in this regard important to understand as to how far the punishment
given to psychopathic offenders are legitimized.
As the importance and advantages of having laws which identifies the need to provide
better mechanism for the determination of various forms of ailment increases this
study strives to bring focus on those importance and advantages. Arguments from
both sides have been taken into consideration in order to bring out the clear
understanding of the topic. It is urged that a distinction has to be made between
medical and legal insanity and also a restorative approach is the need of the hour.

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INTRODUCTION
Crime has always been categorized as something unavoidable and though deplorable
phenomenon of society. To the extent etiology of crime is concerned there can be
several factors contributing towards criminalistic conduct. Both social and
environmental variables may add to such behaviour. Criminal attributes and conduct
can be the after-effect of different variables or various causation. One of the variables
contributing to such behaviour can be the “Mental Diseases”. In 1838, Jena Esquirol
of France pointed out in his book “Mental Diseases” the distinction between mental
defect and mental disease. The similar view was taken by Issac Ray in U.S.A., and he
raised the question whether the criminal act could be imputed to a man who was
incapable of knowing the intent or the consequences of the act. The question of legal
responsibility is another thing for a mentally retarded person. According to medical
science, he should not be held liable.85
Psychopaths or the truly self- absorbed individual when caught or involved in a crime
poses practical challenges to the criminal justice system in general. The primary thing
that often comes to mind subsequent to listening to the term ‘PSYCHOPATHS’ is the
picture of savage people and beasts in our society as portrayed in films and
sensational written works. In any case, the genuine picture is that it covers a much
more extensive range of people than we as an individual could ever envision. It is to
be noticed that there is a great deal of variety of mental illnesses yet Indian laws
classify them under the same umbrella. There is no appropriate arrangement and
order of such variety of mental ailments in our laws. Psychopathy as a mental affliction
has not been perceived under our laws and it remains an unrevealed zone under the
Indian Judicial System. There is no different enactment or statute in India to the extent
psychopaths is concerned rather than the U.K. and U.S., where such statutes
managing psychological wellness of psychopathy cases are available.
Psychopaths raise both a theoretical and practical challenge to the criminal justice
system for their conduct is set apart with diligent criminal behavior and there is little
scope for effective treatment. While determining the punishment for psychopaths the
Courts for the most part mistake it for other mental ailments and they’re often viewed

85

S.S Srivastava, Criminology Penology Victimology 27(Central Law Agency, Allahabad, 4th edn, 2012).

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as other serial killers. There's a lack of awareness amongst every one of the
stakeholders, including advocates, judges, police, specialists and so on, to the extent
psychopathy is concerned and the treatment choices accessible to the psychopaths
accused of criminal acts. It is here pertinent to note that the search for determining the
genuine liability here is cumbersome and does not entail looking at the ailment from
one aspect. In this way, what is fundamentally required is to adopt a restorative
methodology or what we call a therapeutic approach. Then again the issue as to
whether harsh punishment like capital punishment ought to be given to such asserted
psychopathic criminal wrongdoer is an inquiry that necessities dire consideration.
At the same time it is also urged that a proper distinction has to be made between
legal insanity and medical insanity.86
PSYCHOPATHS: BEHAVIOUR AND TRAITS
The oxford dictionary defines psychopaths as a ‘person suffering from chronic mental
disorder with abnormal or violent social behaviour.’ Undoubtedly the idea of
"psychopathy" is significantly examined subject in criminal and psychiatry conduct. As
the definition proposes the psychopaths are portrayed by unusual or savage social
conduct which by and large contrasts from criminal conduct and it is to be noticed that
not all psychopaths are lawbreakers. It is in such manner vital to comprehend the
advancement of the term and the character qualities appeared by such patients and
its refinement with "sociopath" and other related terms.
In the start of the eighteenth century the specialists managing mental patients saw
some bizarre qualities amongst some of their patients that they appeared to have no
feeling of morals or privileges of other individuals and consequently the idea was
developed and applied interestingly around nineteenth century. At that point around
1930s the term was changed to "sociopath" keeping in mind the end goal to emphasize
the harm they do to society. In any case, of course at present the scientists have again
begun utilizing the expression "psychopath".87

86

Bapu @ Gajraj Singh v. State Of Rajasthan, Appeal (crl.)1313 of 2006.

87

What Is a Psychopath?: The Neuroscience of Psychopathy Reports Some Intriguing Findings, India, available
at: https://www.psychologytoday.com/blog/mindmelding/201301/what-is-psychopath-0 (Last visited on June
20, 2016).

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Subsequently ‘psychopathy’ has been characterized as a “personality disorder defined
by a constellation of affective and behavioral symptoms.”88The idea has been
characterized by different scholars however the most exact idea was contrived by Dr.
Robert Hare and his associates. Depending on Cleckley's conceptualization of the
disorder Mr. Hare made Psychopathy Checklist most generally known as PCL which
was later modified in 1991 and came to be known as PCL-R. From that point onward
it stays most broadly utilized expert rater devices to assess psychopathy today.
PCL-R operates on two important procedure and parts.
Part 1: The first part includes an extensive review of collateral sources of information
(e.g., reports about family, education, extra-curricular activities, work history,
relationships with family and friends).
Part 2: The second part of the assessment is a detailed life history interview with the
patient. The in-person interview is strongly recommended but not required to validly
complete the Psychopathy Checklist provided there is sufficient collateral information
on the patient. Thus, the Psychopathy Checklist can be completed even if the patient
refuses to cooperate in the interview. Using all available information, the expert rates
the patient on the 20 items according to very specific scoring criteria articulated in the
PCL-R manual.89
Researchers working on psychopathy have discovered some of the common traits90:

Lack of empathy, guilt, conscience or remorse

Shallow experiences of feelings or emotions

Impulsivity and a weak ability to defer gratification and control behavior

Superficial charm and glibness

Irresponsibility and a failure to accept responsibility for their actions

A grandiose sense of their own worth

88

Psychopathy, India, available at: http://www.scholarpedia.org/article/Psychopathy (Last visited on June 20,
2016).
89
ibid.
90
The Psychology of a Psychopath, India, available at: http://www.scienceofpeople.com/2015/03/mastermanipulators/ (Last visited on June 21, 2016).

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SCIENTIFIC JUSTIFICATION AND CRIMINAL RESPONSIBILITY
The most widely recognized inquiry which has been raised amongst the psychological
a specialist is the issue as to how far the psychopaths should be held both criminally
and morally responsible for their actions. There is most broadly acknowledged
forbiddance present in both law and morality which says no individual ought to be
punished for activities over which they lack control or of which they don't comprehend
the ethical nature. However, in the meantime there is likewise a necessity under the
law that it is expected out of every single person that they ought to comply with the
law. However the other inquiry which needs consideration in the meantime is
concerning the instances of repeat offenders as to what punishment do they deserve
mulling over the end result that they may bring about to the general public. As already
mentioned that the psychopaths experience the ill effects of such sort of mind
irregularities that drifts them away from the world of emotions. The neurobiological and
psychological inquires about have additionally uncovered that the psychopaths are
“tone-deaf” i.e., they not only lack access to their own feelings as well as those of
others.91
The Lancet Journal on Psychiatry published that “MRI scans suggest that psychopaths
don't grasp punishment the same way as other people, the researchers said. This is
likely why psychopaths do not benefit from rehabilitation programs, as other violent
criminals often do.”92 It is therefore very important to draw a distinction between
psychopathic offenders and regular hard core criminals. During the release Dr. Nigel
Blackwood, who is affiliated with King’s College London, explained it and said
“Psychopathic offenders are different from regular criminals in many ways. Regular
criminals are hyper-responsive to threat, quick-tempered and aggressive, while
psychopaths have a very low response to threats, are cold, and their aggression is
premeditated. Evidence is now accumulating to show that both types of offenders
present abnormal, but distinctive, brain development from a young age.”93

91

Inside the Mind of a Psychopath, India, available at: http://cicn.vanderbilt.edu/images/news/psycho.pdf (Last
visited on June 21, 2016).
92
Psychopaths Brain Don’t Grasp Punishment, Scan Reveals, India, available at:
http://www.livescience.com/49613-psychopaths-brains-punishment.html (Last visited on June 21, 2016).
93
Violent psychopaths 'cannot understand punishment' due to brain abnormalities, India, available at:
http://www.ibtimes.co.uk/violent-psychopaths-cannot-understand-punishment-due-brain-abnormalities-1485419
(Last visited on June 21, 2016).

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The findings were based on the research conducted over offenders who were
convicted of murder, rape, attempt to murder and grievous bodily harm. To have better
understanding of the differences between psychopathic offenders and regular
criminals Dr. Nigel and his colleagues conducted MRI scans of 12 violent criminals
with psychopathy, 20 violent criminals with antisocial personality disorder but not
psychopathy, and 18 healthy people who were not criminals. All the participants were
requested to play a matching game while their brains were being checked through
MRI. The whole thing was done keeping in mind the end goal to survey the capacity
of the members to the extent rewards and punishment is concerned. MRI scans
revealed that “In the group of criminals who were psychopathic, the scientists
observed lower volumes of gray matter in brain regions involved in empathy, moral
reasoning, and the processing of social emotions such as guilt and embarrassment.
They also found abnormalities in white matter fibers leading to the prefrontal cortex, in
regions involved in learning from reward and punishment. The other violent criminals
performed similarly to the people who were not criminals in this test, the researchers
found.”94
This has brought up issue before the criminal justice framework in the matter of how
far the punishment given to such psychopath offenders are legitimized. It is in such
manner essential to know the status of laws at present in India to the extent mental
health is concerned and to comprehend with respect to whether psychopathy finds a
place in our laws.
RECALLING RAMAN RAGHAV CASE95: INDIA’S WORST SERIAL KILLER
Raman Raghav again came into light with the arrival of Raman Raghav 2.0 delineating
the account of the most prolific serial executioner. Raman Raghav was a psychopathic
executioner who worked in the city of Bombay around the mid-1960s. He was a poor
vagrant whose target was poor people living in slum areas. His technique for murder
included hitting the casualties with hard and obtuse objects while they slept. What was
intriguing to note was that amid the examinations the murders did not appear for any
monetary benefit.

94
95

Supra note 91.
State of Maharashtra v. Sindhi@Raman,1975 AIR 1665.

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At the point when Raman was called during investigations he kept up complete silence
and did not utter a single word and that the investigating authorities thought that they
would never be able to converse with him. Then one day one of the officers inquired
Raman if he required anything. Raman without taking time asked for chicken and ate
as much as he could. Further he requested hair oil, brush and a mirror then
subsequent to setting his hair and applying oil over his body he looked into the mirror
and afterward turn towards the policemen and said , 'Now let me know What do you
need?'
The policemen said that they wanted to know about all the murders that he had
committed. Raman showed all the instruments which he had utilized while committing
all murders. He likewise also showed to the police the places where he used to shroud
these sharp instruments. He also confessed to all the crimes he had committed. He
was sentenced to death by Additional Session Judge to which he did not file any
appeal. However two advocates were delegated as amicus curiae to defend and
protect him. On the other hand the High Court reduced his sentence to life
imprisonment when he was diagnosed with ‘chronic paranoid schizophrenia.’ Later he
died at Pune in 1987.
RAMAN’S CASE: THROUGH A PSYCHOLOGICAL ANGLE
The investigating authorities were stunned to see Raman’s reaction as he did not took
even a single effort to defend him and simply accepted all the murders that he had
committed. The Director General of Police likewise was also puzzled over Raman’s
confession and he clarified it through what he had perused in ‘Criminal Investigation’
by Aubry and Caputo where the authors have clarified such situation in the following
words:
“The key to successful interrogation of psychopaths lies within the personality structure
of the individual himself. For some, conscience does not matter and the ability to
distinguish between right and wrong is missing. Therefore the classical approach to
interrogation which depends on the repetition of the theme of good and bad, right and
wrong will have little effect on such a mind. Simply agreeing with such an individual
can be an effective technique.’ Once friendliness and understanding is offered, the

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individual might wish to ‘repay’ this kindness by giving the interrogator what he
wants.”96
THE NITHARI SERIAL KILLER
Couple of years back in December 2007 the whole of Noida was threatened due to
the gruesome killings of young women and children in Nithari, a village in Noida. The
body parts of the dead children were found in the house of Moninder Singh Pandher.
Later it was found that Moninder’s servant Surinder Koli had been assaulting and
slaughtering children. This did not end here it was likewise uncovered that he was also
eating their body parts. The investigation began when a call girl named ‘Payal’ went
missing and afterward raped and killed. Case was filed against both the owner and the
servant and charges were framed against them for rape, murder, kidnapping and
criminal conspiracy. Both of them were sentenced to death on February 13, 2009.
However the Court acquitted and overturned Moninder’s death sentence on
September 10, 2009.
KOLI’S CASE: PSYCHOLOGICAL JUSTIFICATION
The confessions made by Koli opened several questions. Koli being Moninder’s
servant used to see Moninder bringing sex workers daily at night. Koli was asked to
cook for those sex workers as well. This entire thing gave him extraordinary inclination
to have sex. Consequently Koli began tricking young girls. He used to stand at the
gate of Moninder’s house and call those girls on the bogus affection of procuring them
to do housework. During investigations Koli said:
“After that, without realising in my mind, bad feelings started coming… to kill and hack
someone, blood, that kind of bad feelings started coming in my mind, It used to control
my mind absolutely.”97
Taking into consideration both these cases. Raman Raghav’s decision was given
considering the reason behind the commission of crime and along these lines the
mental ailment was considered by the Court (in spite of the fact that he was

96

Raman Raghav, India, available at: http://murderpedia.org/male.R/r/raghav-raman.htm (Last visited on June
27, 2016).
97
Nine reasons not to hang alleged Nithari serial killer Surendra Koli, India, available at:
http://scroll.in/article/679297/nine-reasons-not-to-hang-alleged-nithari-serial-killer-surendra-koli (Last visited
on June 27, 2016).

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pronounced a paranoid schizophrenic instead of a psychopath). For Koli’s case the
Court observed it to be in the rarest of rare category. The confessions made by Koli is
unmistakably demonstrative of the fact that he was a psychopath and consequently
the capital punishment was not the perfect solution. Psychopath must be treated and
nothing was obtained by hanging such psychopath. The deterrent theory can be
effective in case of a thief but it cannot control those who are victim of their own minds.
LEGAL INSIGHT: WHETHER INDIAN LAW RECOGNISES PSYCHOPATHY?
As far as the current treatment of law is concerned in India.
a) Psychopathy is an uncovered area in judicial arena
b) In determining criminal responsibility it is considered to be an aggravating rather
than a mitigating factor
c) It is frequently mistaken with serial killing, child molestation etc.
d) It is not considered as dysfunctional behaviour for the purpose of mitigating
responsibility.
Likewise psychopathy does not qualify as a mitigating under the Indian Penal Code.
Section 84 of the Code reads:
“ Act of a person of unsound mind.—Nothing is an offence which is done by a
person who, at the time of doing it, by reason of unsoundness of mind, is incapable of
knowing the nature of the act, or that he is doing what is either wrong or contrary to
law.”
To the extent laws on mental health is concerned Section 84 of IPC instead of using
the term insanity uses the expression “unsound mind”. Psychopaths lacks the ability
to comprehend regarding why a particular act is wrongful furthermore they do not
understand moral wrong and are unable to grasp rewards and punishment. Thus this
sort of impairment which ought to have been perceived as a mitigating component is
considered by courts as an aggravating factor.
Two years back the Delhi High Court held that while determining the criminal
responsibility ‘psychopathy’ should be considered as an aggravating factor and in no

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case should be considered to mitigate the one.98 The wrongdoers in the instant case
were accused of raping and fiercely murdering a 17 year old girl. The Court came out
with its own reasoning based on several factors. While determining the question where
psychopathy was pleaded as a defense the Court took predominantly the following
factors into consideration99:

An intersection between ‘Mad’ and ‘Bad’: Explaining the traits and tendencies
of the psychopaths the Court at Para 149 observed:

“Psychopathic personality disorder occupies a position at the heart of both forensic
psychiatry and psychiatric criminal jurisprudence. This is because psychopaths lie at
the intersection between the so-called ‘mad’ and ‘bad’- that is, between those who
clearly warrant treatment (the seriously mentally ill) and those who should properly
receive punishment. Psychopaths are thought to be peculiarly and inherently
untouched by therapeutic or rehabilitative interventions - two of the commonly
accepted diagnostic criteria for psychopathic personality disorder being a failure to
learn from experience and a failure to show remorse. Psychopathy comprises forms
of egotism, immaturity, aggressiveness, low frustration tolerance and inability to learn
from experience that places psychopaths at high risk of clashing with any community
that depends upon co-operation and individual responsibility of its members for its
continued existence.”100

Aggravating and not a Mitigating Factor: The Court while determining the
criminal liability remarked :

“It is the dominant view among psychiatrists and the law that psychopathy should not
mitigate or remove criminal responsibility...In line with this stance researches suggest
that a diagnosis of psychopathy may result in harsher judicial sentencing or may even
be

used

to

justify

imposition

of

the

death

penalty

rather

than

a

life

sentence...Psychopathy is said to aggravate rather than mitigate responsibility
because

of

the

diagnostic

features

and

clinical

description

of

psychopathy...Psychopaths are callous, manipulative, deceitful, indifferent to the
rights of others and lacking in empathy and remorse. A diagnosis of psychopathy looks

98

State v. Ravi Kumar & Ors, CRL.A. 563/2014.
Ibid.
100
Ibid, para 149.
99

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to be evidence not of impairment but of the offender‘s lack of any redeeming qualities
that the court could take into account.”101

A Utilitarian Approach: Another concern which is expressed is taking into
account the utilitarian approach considering the general welfare of the members
in the society. The utilitarian approach is based on the theory of distributive justice.
Thus on his release there is a cognizable benefits to the psychopaths and burden
to society at large. Likewise burden to the psychopaths and benefit to society in
his detainment. This was the methodology taken up by the Courts while advocating
the utilitarian approach taking into account distributive justice. Be that as it may
this utilitarian contention is not legitimized on certain grounds as it undermines the
individual rights in administration of interests of society at large.102

Along these lines under the present treatment of law we've at the first place Section
84 of IPC managing unsoundness of mind. The provision is condemned as of being
obsolete as it neglects to give security out of variation from the norm of brain,
irresistible impulse and so on., of a psychopath. Furthermore chapter XXV of Code of
Criminal Procedure, 1973 deals with the procedure for trial of insane persons. 103 Our
personal laws likewise also recognizes psychopathic disorders, for instance, Section
13 of Hindu Marriage Act, 1955 which deals with divorce recognizes psychopathic
disorders as one of the grounds for divorce. It is here pertinent to note that in spite of
the fact that a little say has been made in our own laws yet the laws are lacking to
manage the issues identified with psychopaths.
Under our laws there is little probability that psychopaths would be insusceptible from
standing a trial since they are the ones who appear to be fit for trial as they delineate
no sympathy to what they've effectively done. In general the offenders who are
mentally ill are considered as incompetent to stand trial and therefore they are sent to
mental hospitals for treatment yet to the extent case including psychopaths are
concerned no particular rules have been framed out. Psychopaths are often labeled
as gruesome offenders as they by and large concede their wrongdoing with no regret.
Our laws don't consider such conduct.

101

Ibid, para 153.
Psychopathy and Culpability: How Responsible is the Psychopath for Criminal Wrongdoing?,India, available
at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1908749 (Last visited on June 27, 2016).
103
Code of Criminal Procedure, 1973, s. 329.
102

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CONFUSION AS TO TERMINOLOGY
In India the expression "psychopath" is frequently mistaken for different phrasings
utilized for brutal lawbreakers, serial executioners, attackers and so on. However there
is clear outline of these classifications under the laws of U.K., and U.S.A., and in this
manner the punishment provided in these countries takes the ailment into
consideration. It is consequently imperative to consider psychopath and other mentally
sick guilty parties as indicated by their disease and not exclusively on the premise of
the crime committed by them.
CONCLUSION
At first place what is required is the awareness regarding this disorder amongst the
various stakeholders including judges, advocates, doctors etc. This would help in more
prominent comprehension of the different difficulties connected with these
psychopaths. A psychopathic offender is not a criminal per se rather they are the
victims of the mental ailment or the sufferers of the mental ailment. At the same time
the multiple causation theory recommends that the reason for the wrongdoing can't be
credited to a specific element. The theory drives us to various reasons for
wrongdoings. The white collar crimes and the crimes involving violence are the two
distinct things and even their causes are distinctive. It is said that the white collar
crimes are mostly committed out of greed than need. The crimes involving violence
thus can also be committed due to variety of reasons sometimes due to sudden
impulse, sometimes due to lust for sex or sometimes due to mental ailment and so on.
It is in this way vital that legitimate conceptualization at law ought to be done while
deciding the criminal obligation.
Civil commitment is another arrangement where the psychopathic offenders through
Court orders can be treated in a psychiatric hospital. A proper categorization is
needed. It is often argued that there is no cure for psychopaths and therefore their
release into the society may be detrimental to general public at large. It is in this regard
proposed that a more therapeutic approach is required. Proper medical examination
of such patients should be done at first place. Capital punishment is not the correct
solution for such psychopathic offenders and the ailment must be taken into
consideration. During their time period in jail such offenders should be involved in
rehabilitation programs and after their release a check on their activities should be

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done on regular basis by investigating authorities which can be helpful in case of
repeat offenders. Thus for prevention of crime surveillance and watch keeping is very
necessary. Domiciliary visit by the police is one such measure. It can be effected by
employing police personnel as night watchmen.
Then again it has also been revealed through psychological researches that
psychopathic offenders generally attack in those areas with which they are most
familiar with. In such a situation the best possible solution after a psychopathic
offender is released into the society is to restrict their movement. Externment order
can be passed in such cases i.e., directing the particular psychopathic offender to
leave a particular area or not to leave a particular area so that they may not commit
any anti-social, subversive or other criminal activities. Besides, the offender can be
asked to restrict his movement within a specified area.Indian laws on mental health
hence should be reconsidered somehow to have appropriate comprehension of
various classes of mental ailments.

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THE EMERGENT PARADOX:
A BRIEF COMMENTARY ON PUBLIC HEALTH (WITH SPECIFIC
REFERENCE TO UNDER FIVE MORTALITY RATIOS) IN ODISHA
RADHIKA KRISHNA
(DEVELOPMENT PRACTITIONER AND INDEPENDENT RESEARCHER)
ABSTRACT
India failed to achieve its Millennium Development Goal (MDG) Target of reducing
child mortality. Research has indicated that children who are born to Scheduled Caste
(SC) and Scheduled Tribe (ST) families are at a greater risk of dying than others. This
places a threat on states like Madhya Pradesh, Rajasthan, Assam and Odisha that
have a high ST population. In view of child deaths, this paper is directed at briefly
analyzing and commenting on public health outcomes in Odisha with specific regard
to the Under 5 Mortality Rate. The paper examines positive steps undertaken in
reducing child deaths in Odisha and also good policy interventions that have been
successful in combating child mortality and morbidity in other developing countries
(namely Rwanda and Vietnam). The objective of this brief literature review is to draw
inferences to determine which factors must be taken into account while working on
public health contours with regard to children in the state of Odisha.
PROLOGUE
This was the fourth child they had lost in five consecutive years. The fourth child who
hadn’t lived beyond six months. They cremated him in silence. They could not cry
anymore. The anguish had escaped them all. Four children at the cost of what? They
were home deliveries; they lived in too remote a village to go to a government hospital.
The one that did live, the fourth one gave them hope. He was under nourished and
underweight but they hoped that the vaccinations that he had received at birth would
ward off any ill ailments. When he died of malaria, he became life and blood to them,
and another statistic to their state. After the cremation, he told his wife, “Don’t worry.
We will be rich one day. One will live.” She smiled sadly at him and knew that it would
be decades before his consolation would come true.

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INTRODUCTION
On global records, 11 children die every minute before celebrating their fifth
birthday.104 In India, the monsoon parliament session of 2016 took cognizance of
UNICEF’s ‘State of World’s Children Report, 2016’ which enlisted India as one of the
top 5 countries accounting for maximum number of under-five deaths in the world.105
The main reasons for this being India’s expansive population coupled with a high
neonatal rate, the incidence of infectious diseases such as pneumonia, diarrhea and
measles, the incidence of non-communicable diseases and injuries and the extent of
malnutrition which accounts for child diseases and deaths.106
While the issue of public health is the responsibility of the State government, the
National Health Mission is directed towards curbing child mortality through various
schemes such as the Janani Suraksha Yojana (institutional deliveries), Universal
Immunization Program, Facility Based Newborn Care, vaccinations against life
threatening disease, deworming programmes and so on. Yet, as of 2013, India has a
maternal mortality ratio of 167 per 1, 00, 000 live births and an infant mortality ratio of
40 per 1000 live births.107 A study by Lancet revealed that India accounts for 20% of
the world’s Under 5 Mortality Rate.108
While there has been an increase in child survival over the last two decades, India did
not meet the Millennium Development Goal (MDG) of reducing Under 5 Mortality by
two thirds. This is attributed to various maternal and demographic factors, social and
economic factors and environmental factors. The social grouping of children further
indicates that children born to Scheduled Caste (SC) and Scheduled Tribe (ST)
families are at a higher risk of dying than others. The risk is even higher for those born
to ST families where a child is at a 19% higher risk of dying in the neo-natal period
and 45% risk of dying in the post neonatal period.109 This places a threat on states

104

See: World Health Organization- http://www.who.int/mediacentre/factsheets/fs178/en/; Last viewed on
10.09.2016.
105
The above facts were taken from a question raised in the Rajya Sabha House of Parliament on 09.08.2016 by
M.P. Kanwar Deep Singh. The response provided by the Minister of Health and Family Welfare was from Jagat
Prakash Nadda.
106
Ibid.
107
See: Ministry of Home Affairs. (2011). Sample Registration System- available on https://data.gov.in/; Last
viewed on 11.09.2016.
108
See: The Times of India. (2015). Available on- http://timesofindia.indiatimes.com/india/20-of-worlds-under5-deaths-occur-in-India/articleshow/48878224.cms; Last viewed on 11.09.2016.
109
See: Nation Family Health Survey. (2013). ‘Status of Health and Family Welfare Among Scheduled Tribes’.
Section 3.

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such as Madhya Pradesh, Maharashtra, Odisha, Rajasthan and Gujarat which have
an ST population of 14.7%, 10.1%, 9.2%, and 8.9% respectively.110
The aim of this paper is to briefly comment on successful public health outcomes in
Odisha with regards to the Under 5 Mortality Rate. The paper also examines some
positive outcomes directed at reducing child deaths in Odisha and good practices
incorporated by other developing countries to understand the key drivers of change
that contribute to reduced child mortality and morbidity. The paper concludes by
drawing inferences on the fore mentioned analysis to determine which factors need to
be taken into account while remoulding public health contours with regard to child
deaths in the state of Odisha.
PUBLIC HEALTH IN ODISHA
Situated on the eastern coast of India, the state of Odisha is bounded by West Bengal
in the north-east, Bihar in the north, Madhya Pradesh in the west, Andhra Pradesh in
the south and the Bay of Bengal in the east.111 Odisha is one of the richest states in
terms of resources but it holds the largest number of poor people in the country.112
The SC and ST population of Odisha together make up 41% of the entire state
population, wherein most of them reside below the poverty line. 113 The frequency of
natural disasters such as droughts and floods further exacerbates the situation owing
to which the situation of public health access has seen only mild improvements.114
As of 2015, the World Bank reported India to have an Under 5 mortality ratio of 48 per
1000 live births.115 The state of Odisha reports an Under 5 mortality ratio of 75 per
1000 live births which is one and half times higher than the national average. 116 There
have been many factors that are associated with this outcome on public health, but
they can be broadly categorized into a) the conditions in which people live in and b)
the access and availability of health care.117 The state of Odisha is stained on both

110

See: Ministry of Home Affairs. (2011). Sample Registration System- available on https://data.gov.in/; Last
viewed on 11.09.2016.
111
See: Health and Family Welfare Department- Odisha. Available on- http://www.orissa.gov.in/health_portal/;
Last viewed on 11.09.2016.
112
See: Health and Family Welfare Department- Odisha. (2011). ‘Out of Pocket Spending on Health in Odisha.’
113
See: Indian Council for Research on International Economic Relations. (2002). ‘State Health Systems- Orissa’.
Working Paper No. 89 by Gupta, Meena.
114
Ibid.
115
See: The World Bank. (2015). Available on- http://data.worldbank.org/indicator/SH.DYN.MORT; Last
viewed on 18.09.2016.
116
See: Ministry of Home Affairs. (2013). ‘Release of Primary Census Abstract- Data Highlights.’
117
See: Orissa Health Support Plan. (2009). ‘An Analysis of Health Status of Orissa in Specific Reference to
Health Equity.’

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counts. The low social and economic status, critical manpower shortage, limited
monetary allocation of state budget towards public health schemes, heavy burden of
out-of-pocket payments and insufficient disease control programmes all contribute
towards poor outcomes on the public health scale.118
Reducing inequities across the state and saving children’s lives through ending
preventable child deaths are crucial priorities. The Under 5 Mortality Rate is also a
leading indicator of the level of child health and overall development in countries. 119
These lives lost translate to a loss in human development, a loss for social and
economic labour, a loss in household income through potential sources of income
earning activities and also a loss to state revenue returns.
PUBLIC HEALTH SCHEMES TARGETING CHILD DEATHS IN ODISHA
Interest in health sector reforms for Odisha began in the mid-1990s120 and Odisha has
seen improved outcomes in its public health contours over the last three decades.
Various programmes and schemes have come into place which has assisted in
reducing if not eradicating the Under 5 Mortality Rate. Some of these early bird
programmes were the Pancha Byadhi Chikista (five disease treatments), formation of
district groups for paramedics, handing over Primary Health Centers (PHCs) to NGOs
and the Vitamin A Campaign. In recent past, various interventions such as Mo Mashari
(My Bed Net) to protect pregnant women from malaria, Wheels for ASHA to increase
the mobility of children and women to accessing healthcare, the nutrition operation
plan, and nursing reforms directed at strengthening institutions and improving the
quality of healthcare came into play to curb the situation of growing child deaths in
Odisha.
In Odisha, the Vitamin A Campaign was introduced as early as 1998.121 Here, Vitamin
A was administered on a single day using a pulse approach every 6 months to children
below the age of 5. The government carried out wide scale publicity campaigns to
ensure a high rate of attendance and even combined this with the polio pulse
campaign to save costs.122 Despite the benefits on Under 5 Mortality Rate and
See: Indian Council for Research on International Economic Relations. (2002). ‘State Health Systems- Orissa’.
Working Paper No. 89 by Gupta, Meena.
119
See: UNICEF. (2016). Available on- http://data.unicef.org/child-mortality/under-five.html; Last viewed on
18.09.2016.
120
See: Indian Council for Research on International Economic Relations. (2002). ‘State Health Systems- Orissa’.
Working Paper No. 89 by Gupta, Meena.
121
Ibid.
122
Ibid.
118

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Morbidity being limited as per the basis of current data trends, the government
managed to demonstrate the feasibility of implementing a successful and inclusive
Vitamin A Supplementation programme in India that reaches all children. This is
specifically if an effort is made to understand who the most vulnerable children are,
where they live and thus ensure that political decisions are informed to assign the
human and programme resources required to reach all children in an equitable and
sustainable manner.123
Similarly, the Mo Mashari scheme launched in November 2009 was directed at
protecting pregnant women against malaria through the distribution of Long Lasting
Insecticidal Nets (LLIN). These LLINs were distributed through local ANMs during
antenatal checkups, immunization days or other non-health specified days along with
educating the women on how to use and care for the nets. 124 Evaluation studies
indicated that the rates of malaria, anemia and underweight in women were found to
be substantially lower in households that had received the LLIN treatment versus
households that had not.125 It is also well known that the health of the mother has a
direct impact on the health of a child and also on the Under 5 Mortality Ratio indicating
the success of this intervention in improving public health outcomes, especially with
regard to child deaths.
However, despite these interventions, the public health of the state and specifically the
issue of Under 5 Mortality are still in peril. Sufficient research and investigation by state
agencies, international cooperation’s and other independent researchers has
indicated that education, community involvement and enhanced health facilities are 3
key targets that need to be intervened upon to achieve desirable health outcomes. But
before drawing such an inference, a glimpse into successful policy intervention
implemented by other developing countries that paint a similar picture given the
situation of Odisha follows.

123

See: Rah, J.H. Houston, R.; Mohapatra, B.D; Kumar, S.; Saiyed F.; Bhattacharjee, S.; Aguayo, V.M. (2014).
‘A Review of the Vitamin A Supplementation Programme in India: Reasons for Success in the States of Bihar
and Odisha.; Food Nutrition Bulletin, Vol. 35, No.2.
124
See: Health and Family Welfare Department- Odisha. (2013). ‘Orissa Health Sector Plan- Policy and Activity
Briefs’.
125
Ibid.

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SUCCESSFUL POLICY INTERVENTIONS
The case of Rwanda:
Following its genocide, the country of Rwanda has been moving rapidly to expand
health delivery services and has shown an accelerated trend in public health outcomes
on the basis of global indicators. Three important strategies adopted here included a)
community health insurance b) performance based financing within a broader
framework of reform of management of human resources for health and c) fiscal
decentralization.126 The Under 5 Mortality Ratio in Rwanda has shown significant
drops, falling from 196 per 1000 live births in 2000 to 152 per 1000 live births in 2005
and 103 per 1000 live births in 2007.127 These successes are widely attributed to an
increase in the use of essential health interventions.
Since 2000, Rwanda has sustained an equitable yet high coverage of vaccination
against avoidable child diseases and the Vitamin A Supplementation programme has
been integrated into health facilities on a routine basis. Additionally, the country has
seen increased man power and resources in treating acute respiratory infections of
children. The government has also commenced various micro insurance schemes to
enhance financial access to health care services.128 Rwanda has now settled in a
decentralized model of care wherein health facilities remain autonomous and manage
their own financial resources, health service delivery and other human resources for
health care.129
The main element to be grasped from Rwanda performing well on public health
outcomes drawn from global indicators is the commitment of the government in
improving health facility performance. The officials at the local level were required to
adapt to and accept new responsibilities and donors were required to adjust in working
with local governments.130
The Case of Vietnam:

See: Sekabaraga, C; Soucat, A.; Diop, F.; Martin, G. (2008). ‘Innovative Financing for Health in Rwanda.’
The World Bank Resources.
127
Ibid.
128
See: World Health Organization- The Partnership for Maternal, New Born and Child Health. Available onhttp://www.who.int/pmnch/about/governance/partnersforum/success_factors/en/index1.html; Last viewed on
19.09.2016.
129
See: Sekabaraga, C; Soucat, A.; Diop, F.; Martin, G. (2008). ‘Innovative Financing for Health in Rwanda’.
The World Bank Resources.
130
Ibid.
126

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Despite the inequalities among various social groups due to geography, ethnic and
financial barriers, Vietnam has drastically improved its Under 5 Mortality Rate. The
Under 5 Mortality rate in 1990 was 58 per 1000 live births and as of 2012, the country
reported an Under 5 Mortality of 23.2 per 1000 live births.131 The reason for such an
outstanding success by almost 60% is due to the increased government expenditure
in health care since 1990.132 Due to this, Vietnam succeeded in meeting the MDG 4
(reduce child mortality) and 5 (improve maternal health). Other factors such as the
country’s ability to associate maternal, neonatal and child health interventions to
broader health system investment are equally responsible for its success.133
Vietnam implemented interventions specifically directed towards improving child
health such as treatments for Acute Respiratory Infection and Control of Diarrhoea
Programmes134. As early as 1981, Vietnam extended its Programme for Immunization
and since then, the country has witnessed an increased impact in reducing morbidity
and mortality of vaccine preventable diseases. In 2008, Vietnam implemented the Plan
of Action to Accelerate the Reduction of Stunting following which the National Nutrition
Strategy 2011-2020 was implemented. Other special interventions that focused
specifically on ethnic minorities in urban and rural areas also came into play and these
also helped to address supply and demand challenges towards accessing health care,
nutrition, water and sanitation. 135
Along with the collaboration and assistance from international organizations such as
UNICEF and WHO, the government has implemented a number of policies to ensure
child nutrition. All these have resulted in gains with increased access to immunization,
child survival and nutrition interventions alongside the increase in skilled birth
attendance for women.
CONCLUSION
The intention of explaining the discourse of public health outcomes with regard to the
Under 5 Mortality Rate in Rwanda and Vietnam was to show that despite regional

See: Ministry of Health- Vietnam. (2014). ‘Success Factors for Women’s and Children’s Health.’ Published
by WHO.
132
Ibid.
133
See: World Health Organization- The Partnership for Maternal, New Born and Child Health. Available onhttp://www.who.int/pmnch/about/governance/partnersforum/success_factors/en/index1.html; Last viewed on
19.09.2016.
134
See: Ministry of Health- Vietnam. (2014). ‘Success Factors for Women’s and Children’s Health.’ Published
by WHO.
135
Ibid.
131

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disparities that exist which could be from state, diverse ethnic composition,
governance structure or otherwise, a study of these characteristics is vital to show that
reducing the Under 5 Mortality Ratio is both possible and necessary.
The high degree of inequality that exists among different states in India and also within
the state of Odisha that calls for addressal are within the health sector itself and within
this is both the demand and supply of health which needs to be addressed through
health seeking and health care interventions. The second important factor that needs
to be addressed is the integration of health sector with other important sectors like
education, transport, livelihood programs etc.
Since the matter of public health is a state responsibility, challenges associated with
social status or more specifically caste wise health problems and ensuring the
debunking of geographical access in remote tribal areas need to be integrated into
state policy discourse.136 Other factors such as educational inequalities, disparities in
income earning, under utilization of health services and other logistics and manpower
must also be taken into account to significantly reduce the Under 5 mortality rate in
the state of Odisha and the rest of India to ensure that it attains desirable targets. 137
“The child must know that he is a miracle, that since the beginning of the world there
hasn’t been, and until the end of the world there will not be, another child like him.”
~Pablo Casals.

OTHER SELECTED REFERENCES

Health and Family Welfare Department, Government of Odisha. (2011). ‘Out of
Pocket Spending on Health in Odisha’.

Health and Family Welfare Department- Odisha. (2013). ‘Orissa Health Sector
Plan- Policy and Activity Briefs’.

Lassi, Z.S.; Mallick, D.; Mal, L.; Salam, R.A.; Bhutta, Z. (2014). ‘Essential
Interventions for Child Health.’ Reprod Health, Vol. 11, Suppl 1, S 4.

Indian Council for Research on International Economic Relations. (2002). ‘State
Health Systems- Orissa’. Working Paper No. 89 by Gupta, Meena.

136

The mentioned factors as challenges have been acknowledge by the Government of Odisha in its Orissa Health
Support Plan, 2009, as indicated in the report entitled ‘An Analysis of Health Status of Orissa in Specific
Reference to Health Equity.’
137
Ibid.

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Ministry of Statistics and Programme Implementation, Government of India.
(2012). ‘Children in India, 2012’.

Ministry of Health- Vietnam. (2014). ‘Success Factors for Women’s and
Children’s Health.’ Published by WHO.

Ministry of Home Affairs. (2013). ‘Release of Primary Census Abstract- Data
Highlights.’

Nation Family Health Survey. (2013). ‘Status of Health and Family Welfare
Among Scheduled Tribes’. Section 3.

Orissa Health Support Plan. (2009). ‘An Analysis of Health Status of Orissa in
Specific Reference to Health Equity.’

Rah, J.H.; Houston, R.; Mohapatra, B.D.; Kumar, S.; Saiyed, F.; Bhattacharjee,
S.’ Aguayo, V.M. (2014). ‘A Review of the Vitamin A Supplementation Program
in India: Reasons for Success in the States of Bihar and Odisha.’ Food Nutrition
Bulletin, Vol 35, No. 2.

Sekabaraga, C; Soucat, A.; Diop, F.; Martin, G. (2008). ‘Innovative Financing
for Health in Rwanda’. The World Bank Resources.

UNICEF India. ‘Infant and Child Mortality in India- Levels, Trends and
Determinants’.

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BEING SELECTIVELY SECULAR: A REVIEW OF STATE
INTERFERENCE IN PERSONAL AND RELIGIOUS LAWS.
ANAND RAJ
INSTITUTE OF LAW, NIRMA UNIVERSITY

ABSTRACT
This article is an attempt to understand the true impact of the word "Secular" on the
family laws of India. The authors feel that there has been a lot of interference into
personal and religious laws by the state. In an attempt to bring together people of
different faith toward UCC, the state has managed to drive them apart. There has
been excess interference towards the majority Hindu religion while the minority has
been ignored, often for because of the political propagandas. The state has failed to
put in place well thought out policy that it should have laid out to deal with matters
sensitive to religion.
The debate about the secular nature of our constitution has always been a part of our
polity. But the impact it had on the legislations is often downplayed or ignored. It is
important to study this impact. The authors feel it is important to understand how
dangerously we have let the state act on political agenda. The authors are curious to
find out whether the thought of secularism has had an impact on the rationality of the
countrymen. And whether they are now scared to delve into minority personal laws.

The thought bloomed in the light of the issue of triple talaq, which is banned in most
Islamic countries, but not in India. The question then arose, are we being selectively
secular? Is that it? Has the interference of the state in religious and personal laws
been discriminative?
KEYWORDS: Selectively secular, Family law, UCC, State, equality, personal,
religion.
INTRODUCTION
Today the whole world is in a dilemma on issues like gender equality, communal
violence. One part of the world, we see gay pride and on the other, people are fighting
for their religion. From time immemorial history have taught us that if there is too much
interference from government side on the religious sentiment of people, a war is

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inevitable. Every day in the newspaper we see that people’s personal and religious
rights are getting violated, ever wondered what these terms means?
This article is an attempt to understand the true impact of the word "Secular" on the family
laws of India. The authors feel that there has been a lot of interference into personal and
religious laws by the state. In an attempt to bring together people of different faith toward UCC,
the state has managed to drive them apart. There has been excess interference towards the
majority Hindu religion while the minority has been ignored, often for because of the political
propagandas. The state has failed to put in place well thought out policy that it should have
laid out to deal with matters sensitive to religion.

The debate about the secular nature of our constitution has always been a part of our polity.
But the impact it had on the legislations is often downplayed or ignored. It is important to study
this impact. The authors feel it is important to understand how dangerously we have let the
state act on political agenda. The authors are curious to find out whether the thought of
secularism has had an impact on the rationality of the countrymen. And whether they are now
scared to delve into minority personal laws.

STATE AND RELIGIOUS AND PERSONAL LAW
The personal law under black law dictionary means, “The portion of law which
constitutes all matters related to any individual or their families.”138 It contains subject
like marriage, divorce, maintenance, cases like these are dealt in the family court.
There is a misconception that personal law is same as the religious law in India. Yes,
sometimes they are used interchangeably, but both differs. Personal law is a wider
term and people who call themselves atheist would also come under it, it is available
for each and every individual. On the other hand, religious law is a narrower term,
related to one’s religion which he/she profess. For example, Hindu religious law
contains under it succession, marriage, adoption, and Muslim religious law contains
maintenance, wakfs, etc.
In India, there are mainly two religion which is always a moot topic for the native class,
Hindu and Muslim. The other religions people which are present within the boundary
are Christians, Jewish, who occupies a very small portion of the state. There is always
a tension between the two main religions, and the root of all this is the mentality that

138

Black’s Law Dictionary 5 (9th ed. 2009).

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country people hold. The narrow village perspective overrules today, at the time of
unity of the country, people will support in religious sense, and i.e. they are Hindu and
not thinking that they are Indian and fighting for their territory. 139 Their personal rights
are getting violated is less important today then their religious rights.140
A landmark case of Mohd Ahmed Khan v. Shah Bano Begum141 Supreme Court gave
a clear demarcation between personal and religious law. In the case respondent was
a wife of a Muslim, and after divorce she applied for maintenance under section 125
of criminal procedure court.142 Her husband alleged that divorce have taken place as
per the Muslim law and there is no provision of maintenance under Muslim law. The
court rejecting the plea said that maintenance of women would be regardless of any
religion, it is the personal right of a woman and it would be above their religious right. 143
The British government, before independence, made a policy which is run today too.
They found out that the connection between the personal and religious law of India is
so intact that if they go with the codification of any one of them the other would lead to
a war, so they ended up in making a policy of non-interference in personal law. Now
today this has made the life of family court hell. And therefore the need of Uniform Civil
Code came.144
Uniform Civil Code is written under section 44 of the constitution of India. From the
past 70 years, government is unable to make a stand on UCC and clear their position
on its application. The delay is not only because of sluggishness of government but
due to the Hindutva and Muslim own personal propagandas. Every person tries to use
the opportunity for its own advantage, be it the Shah Bano Case or the demolishment
of Babri masjid in Ayodhya. Followers of Hindutva ideology, want UCC but in their own
communal terms. They have for their selfish need make mockery of government and

139

Chavan Nandini & kidwai Qutub Jehan, Personal Law Reforms and Gender Empowerment: A Debate
on Uniform Civil Code 18 (1 st ed. 2006)
140
Ibid
141
AIR 1985 SC 945 954
142
Rautenbach Christa, Phenomenon of personal laws
in India: some lessons for south Africa, Jstor
(July 20, 2016, 4:30 p.m.), http://www.jstor.org.elibrary.nirmauni.ac.in/stable/pdf/23252637.pdf
143
Ibid
144
Ibid

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uses women as a weapon to abate violence. They have shifted the whole debate from
personal right to their religious rights.145
In my view, there is an urgent need of unbiased and well thought UCC, as the
existence of various personal religious law is like British system of divide and rule.
First, there should be a well versed research on various religion and their shortcoming
and then enactment of UCC should take place.
In India still, after 70 years of independence, people are not able to understand the
real power they hold, and instead just blindly run toward the safety of their religion.
Their true identity as a person is getting deteriorated by the mud of religious war. This
war can never be won by missiles, arms forces or soldiers, this is a war which has to
be fought with heart and every person in this world will have a role to play in it.
STATE INTERFERENCE
India is said to be a secular country. A country of such a diversified culture, is a ‘secular
country’. The fact is difficult to digest but true as far as the constitution of our country
says so. Every religion in India have their own set of rules and norms which the people
inside that community follows, some follow because they believe in them some does
it due to compulsion. But that norm eventually becomes a part of their routine lifestyle.
Imagine a situation, where you are living in a house since your childhood and suddenly
some big fat person comes and evicts you from your home. This is the situation of
people in our country wherein the house is their religion and the outsider is the state.
But why the state in the first place thought about stepping between people and their
religion? The answer lies in the Indian history. At the time of British raj, people were
having their own religion law and the matter was dealt by the court with the expertise
of Pandits (for Hindu law) and maulvis (for Islamic law).146 The British government was
happy by maintaining a distance from the religious law as they know the consequence
would be beyond their control.147 So they ruled the country for around 100 years
maintaining that distance. With the independence movement, there was a widespread

145

Chavan Nandini & kidwai Qutub Jehan, Personal Law Reforms and Gender Empowerment: A Debate
on Uniform Civil Code 23 (1 st ed. 2006)
146
147

James Larson Gerald, Religion and Personal Law in Secular India: A Call to Judgement, 15 (2008)
Ibid

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demand for secularism. At the making of constitution, there was long discussion on
this matter, Nehru report said that it is very important for the integrity of India to bind
all the religion together and bring them under the umbrella of basic principle of
constitution.148 But that was not an easy job, as the country had just come out from
the British raj and now their communal violence had to be stopped. When the question
of Uniform Civil Code (UCC) came, Nehruji said that it would be wise to put it in the
directive principles, implementation of which is neither mandatory nor justiciable. 149
Till now, UCC is not able to do its job in its true spirit.
One of the critical problem in the implementation of UCC is cultural diversity. If
someone believes that people follow their personal law because of their different
religion and their own laws is not completely true.150 People diversity is not only on the
basis of religion but on their cultural basis too. Two person practicing the same culture
could have different religion. These local laws are called as Customary Laws.
Implementation of UCC is difficult because of these laws too.151 The more the diversity
the more problem for UCC. But on the contrary, if there were no diversity, there would
be no UCC in the first place. So a paradox can be seen.
A) ANTI-SECULAR FEATURE OF CONSTITUTION
With the coming of 42nd amendment in 1976, India announces its side as a secular
nation, by adding the word “Secular” in the preamble. Despite this, the constitution
maker failed to shape the Articles and subordinate clauses, in the book, free from
religious biases.152
The main problem with India is the interpretation of the word ‘secular’. As we can see
the word was not added in the preamble at the time of independence, constitution
authors didn’t forget to put it in, but they that time deliberately struck it out. In the next
25-30 years, India made a new definition of the word and then in 1976 added it in the
preamble. If we go with the Western understanding of the word, it means ‘separation

148

Ibid p.17
Ibid
150
Chavan Nandini & kidwai Qutub Jehan, Personal Law Reforms and Gender Empowerment: A Debate
on Uniform Civil Code 23 (1 st ed. 2006)
151
Ibid
152
Reenberg Sand Erik, State and Religion in India: The Indian Secular Model, (July 20, 2016, 7:30 p.m.),
http://tapir.pdc.no/pdf/NJRS/2006/2006-02-2.pdf
149

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of religion and state’, but in India, it reads as ‘equal respect for all the religions’. 153 In
many Articles, it can be seen that it is shifting toward one side. There are two reasons
given by the parliament, firstly, public order and safety. Secondly, to create a path for
the upliftment of weaker section of society.154 Under Article 25 it says that freedom of
conscience and religion but then as a saving clause for the legislature it adds ‘subject
to public order’. Now, this term is quite wide and it can be interpreted by judiciary or
executive in their own whims and fancy ways.155
Article 290A is clearly in favor of Hindu religion. It put a mandate on the state of Kerala
and Tamil Nadu to provide funds for the maintenance of Hindu temples in their
respective state. It is inserted as an Article thereby very difficult to remove. There are
numerous more examples which show that state is interfering in the matter of religion.
Like Article 25 explanation II allows Sikhs to wear and carry a Kirpan, Article 48 allows
state to intervene in the matter of slaughtering of cows and calves (cow is regarded
as Mata in Hindu religion). All these if not favor one religion but surely tells the
interference of the state.
B) THE CONCEPT OF SELECTIVELY SECULAR
The concept of Selectively Secular refers to the policy framework wherein the authority
deals with different sects differently. For example a secular attitude towards one
community.
There is little doubt that Indian laws have been manipulated to an extent wherein they
can be referred to as being selectively secular. Indian politics and “vote-banks” have
played a huge role in this; there is even a term for this “pseudo-secular”. The Hindus
form the majority religious community in India; the term "pseudo-secular" implies that
those who claim to be secular are actually not so, but are anti-Hindu or pro-minority.
But this debate is not limited to India, last year Parisian newspaper Charlie Hebdo was
attacked for depicting Prophet Mohammad in a naked pose.

153

Radhakrishnan Arvind, Religion, Society and State in India: A Legal Perspective, (July 20, 2016, 7:40 p.m.),
http://www.dharmaramjournals.in/ArticleDetails.aspx?AID=492
154
Supra no.148
155
Ibid

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Nehru introduced the Haj subsidy, which is not given even in any Islamic country. 156
The passing of 'Hindu code bills’ gave equal rights to women, thus securing their
fundamental rights in 1955. Passed in 4 acts, Hindu Marriage Act, Hindu Succession
Act, Hindu Minority and Guardianship Act, and Hindu Adoptions and Maintenance Act
it helped in reforming of Hindu personal laws.157
But what about the rights of women in other religions, minority specifically? Agency
and lack of reforms in 'Islam' which is India's second biggest religion has retarded their
growth. While 'Hindu' women enjoy benefits of equal ancestral property rights, Muslim
women lack it. Also, 'talaq' procedure based on personal law, keeps women in
constant fear. Some women did oppose it, the Shah Bano Case being a prominent
example, but in the end the Patriarchal religion won. Maintenance, Divorce, and
Marriage are still debated issues and discriminatory in the minorities.
Some Muslim personal laws have been codified in the Shariyat Act 1937, the
dissolution of Muslim Marriage Act, 1939 and Muslim women (Protection of Rights on
Divorce) act, 1986. Under the Muslim personal laws, women’s right to property is
limited to half of what their brothers get. Act categorically denies women any right to
agricultural land. Polygamy is an issue. Guardianship of the child is an issue, law
making the men the sole guardian. Adoption is an issue.158
Triple Talaq is another major issue.
A lot of cases159 have effectively held that personal laws, are not susceptible to the
Chapter on fundamental rights and cannot be voided on the basis of satisfying Part III
of the Constitution.160 However, a three-Judge Bench of the Supreme Court in the
case of Masilamani Mudaliar v. Idol of Sri Swaminathaswami Thirukoil 161 has taken a

156

S.K Sinha, Selective Secularism, (Aug. 3, 2016). http://archives.deccanchronicle.com/130508/commentarycolumnists/commentary/selective-secularism
157

DEBATING PATRIARCHY: THE HINDU CODE BILL CONTROVERSY IN INDIA (1941-1956), (Oxford
University Press,2012)
158

Shabnam Hashmi v. Union of India (1984) 2 SCC 244.

159

Krishna Singh v. Mathura Ahir (AIR 1980 SC 707) See also Maharshi Avdhesh v. Union of India (1994
Supp (1) SCC 713); Ahmedabad Women Action Group & Ors. v. Union of India (1997 3 SCC 573).
Mihir Desai, Court’s Flip-Flop on Personal Laws , (Combat Law, Volume 3, Issue 4, November-December
2004).
160

161

1996 8 SCC 525.

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contrary view and has held that personal laws to the extent that they are in violation of
the fundamental rights are void. This view though has only created more confusion.
C) COMPARATIVE STUDY OF INDIA AND ISRAEL
The State of Israel has a similar history that of India. Both the country are in a religion
turmoil and the government of both states unable to perform their duty efficiently. On
1947 UN made a partition plan and on 1948 Israel was established as sovereign
democratic state.162 With the Jews population as a majority, other religions like
Muslims, Christians, are present in a small proportion. Constitution of the country is
not written and that causes a major problem. Like in India it has their own religion laws
and the personal law are dealt in it. Broadly if we see, the condition of Muslims in Israel
is far more pathetic than in India.163 The very reiterated example of showing that state
is into the religious matter is the fact that Jews religion law has become state bodies,
which mean every Jews across the country will have to comply with it irrespective of
the fact he likes it or not, or rather he is an atheist. Therefore, if one wants to do a
simple court marriage, the civil law would recognize it but not the rabbinical court
(Jewish religious court), which thereby makes the marriage as void.164 Similar situation
is encountered by the Muslim women, if she wants divorce on the ground which is not
available in Dissolution of Muslim Marriage Act, 1939, she would seek damages for
injury caused to her with the help of her civil rights, but the problem is that the society
will not allow her to file a case against her husband and religious leader would also be
against it.165
There executive and legislature both are in no mood to help minority community to
uplift. The only ray of hope is the judiciary. From the day one it had listened to the
grievances of public and made a judgment in their favor. But as soon as the judiciary
do something like that the legislatures make a law against it and the tussle
continues.166 In India too there is a similar situation. People still have some faith in the
162

Lerner Natana, Religion and the Secular State in Islam, ( July 20, 2016, 7:40 p.m.),
http://www.iclrs.org/content/blurb/files/Israel.pdf
163
Ibid
164
Ibid
165
Pearl David, Religion, law and the State in India ( July 20, 2016, 9:42 p.m.),
http://www.jstor.org/stable/4505367
166
Shetreet Shimon, State and Religion: Funding of Religious Institution- the case of Israel in Comparative
Prospective, ( July 22, 2016, 6:24 p.m.),
http://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=1371&context=ndjlepp

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judiciary because of its independent nature. If in future UCC will get enacted it can be
only done by judiciary. Executive and legislature are too afraid to say anything on this
fragile matter. Israeli government (Knesset) have numerous times rejected the bill
which draws a line between state and religious law. 167 State don’t have to leave
religious as if they do the biggest power of vote bank politics would go away from their
hands. India and Israel both face the problem of vote bank politics. Everyone are busy
using the religion for their own benefit.
The State will continue to interfere until some action wouldn’t be taken. In India, religion
is such a delicate matter and people are so much connected to it that everyone wants
to play with it. Hindu and Muslim fundamentalist never wanted to place UCC in the
fundamental right. And they will never allow it to happen. From the side of Muslim,
fundamentalists have every time tried to show that they are the victim, whether the
time was of Babri masjid or Shah Bano Case, each time they use the situation to create
religion unrest. The problem is not that people believe in their religion, but when they
believe in only their religion. People from both sides wants peace and end to this
communal war. The Government can’t take such a big risk, it’s like playing with fire. If
India really wants to enact UCC then judiciary have to take the lead. Only they can
solve this issue as they have the supreme authority and undependability. 168 Muslim
women are the most distressed party. Islamic law is nothing but a Man’s law. Every
law is against women. Whether its triple talaq or maintenance or will, men are in all
such issue at front and women are nowhere to be found. If the Muslim women rise up
and raise their voice, then also UCC would be more than just a dream.169
CONCLUSION
Education plays a pivotal role here. The most aggrieved party today is the most
educated class. Muslim women are hardly educated and so are the lower class. They
don’t know their rights. Set aside the rights, people don’t know the history of their own
religion too. They don’t know the true meaning of their religion and that’s the reason
of the Islamic terrorist group worldwide. If everyone are aware of their religion and right
167

Ibid, 441
Agnes Flavia, Rhetoric of Gender Justice, ( July 23, 2016, 2:20 p.m.),
http://www.jstor.org/stable/4400864
169
Agnes Flavia, Rhetoric of Gender Justice, ( July 23, 2016, 2:20 p.m.),
http://www.jstor.org/stable/4400864
168

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then there would be no violence for identity as everyone would know their role to play.
Although in near future there is no scope of any improvement in the condition of the
society but in the backdrop changes are taking place, awareness is there. It will take
time for people to understand what state is doing to them, but gradually they will.

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UNIFORM CIVIL CODE
RISHEE RHUDRA AND SHUBHAM APARAJITA
SYMBIOSIS LAW SCHOOL, PUNE

ABSTRACT
India is a country of diverse culture with distinct religions. They are being governed
by different laws in relation to marriage, divorce and some other aspects. In the
recent days there has been chaos in the Muslim community regarding the following
of their personal laws. Many other religions also have some stigma related to their
personal laws. In the current paper I would like to highlight some aspects of women
and personal laws with regards to different personal laws with a brief history and
legal prospective of uniform civil code
INTRODUCTION
"I personally do not understand why religion should be given this vast, expansive
jurisdiction, so as to cover the whole of life and to prevent the legislature from
encroaching upon that field. After all, what are we having this liberty ... “
B. R. AMBEDKAR
India has been a country of personal laws. Till the early twentieth century, different
sets of rules were followed by Muslims in India. It was till the year 1935 that different
sects of Muslims like the Khoja Muslims and the Kutchi Memons had their own rules
of practice. The latter worshipped the Hindu Gods and Ali as their tenth avatar instead
of Kalki. Their inheritance and also the matrimonial laws were as per the Hindus. The
enactment of the Muslim personal law, many such minority creeds of Muslims had to
accept those laws even if they differed in practice from their customary ones. This was
not the case only among the Muslims. The Hindus too had various personal laws
prevailing in different parts of the country. But, these have undergone a drastic change
due to the geographical unification of India as well as the reforms brought about by
the British regime viz. ban on the practices of child marriage, sati and human sacrifice,
encouraging widow-remarriage, introducing divorce and amending inheritance laws in
India.

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Article 44 of our constitution gives as a directive principle of state policy a uniform civil
code. The UCC aims at creating a uniform code for the dispensation of justice so that
the various complications arising out of personal laws like the Hindu law or the Muslim
law are nullified and people are governed not by different sets of laws as is the case
today but by one common civil code. For example if a Muslim and a Hindu marry, in
the case of a divorce, the courts will first decide under whose laws will the case
proceed and later see what the conditions in the household were. Similarly, If a Hindu
changes his religion and becomes a Muslim, he now has the legal ability to marry five
women. similar problems arise in property disputes as well with people using the
complicated and diverse laws to suit their ends We need to understand that men pick
what suits them and choose to ignore the rest which is why the entire problem. The
UCC on the other hand forgets your religion, your local customary laws and lays down
that which is relevant. Take for example the abolition of sati by William Bentick. Had
he too given consideration to customary and religious laws, we might still have been
witnessing our mothers and sisters burning themselves alive on funeral pyres. Despite
the obvious benefits the UCC has met with a lot of opposition.
HISTORY AND THE UNIFORM CIVIL CODE
The issue of introduction of the Uniform Civil Code in India has been debated upon
since the time India attained independence with the Indian Parliament debating on it
in as early as 1948. It witnessed some strong opposition from the Muslim
fundamentalists like Poker Saheb and members from other religions. Though it did get
support from the Chairman of the Draft Committee and father of our Constitution Dr.
B.R. Ambedkar along with some prominent journalists like G.S. Iyengar, K.M. Munshiji
and Alladi Krishnaswamy Iyer amongst others to name a few. Though the Congress
had promised it would allow Muslims to practice Islamic laws, there was a fear, among
Muslims, of a possible interference with the Muslim personal laws and they contended
that India would not be the same again if UCC was to be introduced. As a compromise,
the architects of the Constitution included the Uniform Civil Code under the head of
Directive Principles of State Policy in Article 44. Some distinguished members did
show their dissent stating that the path towards nationhood was being hampered by
the very existence of religion-based personal laws. Earlier it was favoured to

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guarantee the Uniform Civil Code to the Indians within five to ten years. Sixty-three
years have passed and we’re still pondering over such a possibility.
THE DISCUSSIONS ON UNIFORM CIVIL CODE
There have been many debates, articles, discussions, contradictions but neither our
political leaders, nor individuals have concentrated their efforts towards realisation of
the Uniform Civil Code in India. The common knowledge about this system includes a
common law understanding of the concept of marriage, succession or property and
everyone’s guessing what exactly these laws will be. Article 44 of the Constitution of
India states that:- “The State shall endeavour to secure the citizen a Uniform Civil
Code throughout the territory of India”. Thus, we can safely say that even the
Constitution says that establishing the UCC is the only way to achieve national
integration. However these are just “Directive Principles” and are not enforceable in
any court of law under Article 37 of the Constitution. Though these can be regarded
as the fundamentals of governance, the Constitution itself is unclear of its stand about
the implementation of UCC which it does not make mandatory. Though the exact
contours of such a uniform code have not been spelt out, it should presumably
incorporate the most modern and progressive aspects of all existing personal laws
while discarding those which are retrograde.

The Press Council of India Chairperson Justice Markandey Katju said in a write up
and I quote- “I am fully in support of Uniform Civil Code” and “one of the reasons for
the backwardness of Muslims is the lack of modernisation of their personal law”.
The need for a uniform civil code constitutes a key concern in the concept of
secularism and religious freedom in India. Though the substantive laws of crime,
commerce, economy etc are now governed by secular law based on the principles of
‘justice, equity and good conscience’, personal religious laws continue to operate in
the private domain of citizens. Certain personal laws, especially of the Hindus, have
been codified (i.e. incorporated into statutes) accompanied by certain amendments in
light of the compulsions of modern times, while others continue to apply to the
respective religious groups in their long-established, traditional forms. Constitutional
directive to the Legislature to enact a uniform civil code applicable to all religious

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groups which should govern all family relationships such as marriage and divorce,
maintenance, custody of children, guardianship of children, inheritance and
succession, adoption and the like. This Constitutional directive has not been acted
upon in more than six decades since independence due to lack of political arising from
the fear of offending electoral vote bank groups and backlash from religious
communities. The prevalence of personal laws in the country has had far-reaching
ramifications in terms of its implications on the human rights discourse.
STATUS OF WOMEN AND PERSONAL LAWS
The most significant manner in which personal laws in civil matters affect the rights
discourse is by delineating rights for women belonging to their respective religious
communities. The ‘family’ remains one of the most contested sites of women’s rights.
One of biggest criticism working against personal laws is that these antiquated
provisions are discriminatory towards women and seek to undermine their position
within the private domain. Personal religious laws need to be tested for their conformity
with principles of egalitarianism that are the touchstones of our Constitution as well as
international declarations/agreements to which India is a party.
There are five broad sets of family laws in India based on the religions professed by
its different communities. Hindu law governs all Hindus, as also Buddhists, Jains and
Sikhs. Muslim law applies to Muslims, Christian law governs Christians, Parsee law
applies to the Parsees. Jews have their own personal law. Many provisions of the
various Indian personal laws are notorious for being discriminatory towards women. A
brief description of how women’s rights are undermined under various personal laws
follows:

Marriage: The right of all men and women of certain to marry through free consent
and with complete freedom in the choice of a spouse is recognized internationally.
However, Indian personal laws are found wanting in this aspect. Muslim law, for
instance, appears to recognize the right of a guardian to contract his minor ward into
marriage. There is a remedy in the form of ‘option of puberty’ (right to repudiate
marriage on attaining puberty) but it is restricted for as far as women are concerned.

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Under Hindu law

170too,

it is not the mere absence of consent but the obtaining of

consent by fraud or force or vitiation of consent by proved unsoundness of mind that
renders the marriage void. Fortunately, Special Marriage Act, 1954, possibly the most
progressive piece of Indian legislation enacted under family law, overcomes the bar
or strict restrictions on inter-religious marriages under personal law.
Polygamy is a contentious issue in today’s world where monogamy, fidelity and family
welfare are the norm. This institution used to prevail in Hindu society previously but
modern legislation

171prohibits

bigamy (covering both polygamy and polyandry) the

Penal Code makes it an offence. Muslim personal law, however, recognizes and
permits the institution of polygamy. Many scholars believe that under Indian
circumstances, polygamy is largely an anachronism from patriarchal times and that
very few Indian Muslims practice it. This view may be correct to some extent but
ignores that such a practice that is the prerogative of a select few creates fissures and
religious tensions in society. There have been many instances in the past of abuse of
this practice as permitted under Islam. Often, non-Muslims convert to Islam in order to
marry more than once and while Courts examine the intention behind such
conversions to decide on the question of validity of second marriages, such a
phenomenon generates strife and also affects rights of the parties involved.

Divorce: Traditional Hindu law did not recognize the concept of divorce but modern
law provides for it under the Hindu Marriage Act, 1956, which largely provided for faultgrounds which either spouse could avail in order to obtain a divorce.
The most remarkable, and most discriminatory, feature of Islamic law of divorce is the
recognition of the concept of unilateral divorce, wherein the husband can divorce his
wife unilaterally, without any cause, without assigning any reason, even in a jest or in
a state of intoxication, and without recourse to the court and even in the absence of
the wife, by simply pronouncing the formula of repudiation. Muslim law also entitles
the woman to ask for a divorce under certain restricted circumstances. Modern law
172allows

a wife to obtain a divorce through the intervention of a judge, before whom

170

(Hindu Marriage Act, 1955)
(The Hindu Marriage Act, 1956)
172
(The Dissolution of Muslim Marriages Act, 1939)
171

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she must establish one of a limited number of acceptable bases for divorce. The fact
that on a moral plane, divorce is reprehensible in Islam and has been denounced by
Prophet does not provide relief to women as unilateral divorce continues to be an
accepted practice in many countries including India.

Maintenance: Under Indian law, the right to maintenance is civil in nature but it is also
placed under the criminal code and can be pursued therein.
Under Hindu law, a wife has a right to be maintained during her lifetime as per the
provisions of the Hindu Adoptions and Maintenance Act, 1956. In what can be called
an attempt to reinforce the conservative idea of a Hindu wife, an “unchaste” wife is not
entitled to separate residence and maintenance. As far as Muslim law is concerned,
many interpretations of the shari’a do not grant divorced women a right to maintenance
from their former husband’s beyond the three-month waiting period following the
divorce, called the iddat period. In India, the Dissolution of Muslim Marriages Act, 1939
denies divorced Muslim women the right to claim maintenance. In the famous Shah
Bano judgment173, the judiciary attempted to get rid of this anomaly by explicitly
bringing such Muslim women under the purview of the secular Code of Criminal
Procedure, 1973 (wherein a wife is entitled to claim maintenance against the husband
on the ground of the husband’s neglect or refusal to maintain her). Shah Bano case
was a classic conflict situation between the secular criminal code and religious
personal law. In this case, an old Muslim woman had been divorced by her husband
who invoked the Muslim personal law to deny maintenance to his wife. The Supreme
Court, however, applied and interpreted the secular law, the Criminal Procedure Code,
to grant maintenance. Though the judiciary is to be commended for giving a humane
and holistic meaning while applying the relevant provisions, the judgment is often
criticized for entering into a discourse of the Quran, taking pains to explain that the
secular law was not in conflict with the Quran and in the process, sidelining the
constitutional question of examining the personal law of husband on the anvil of
equality and deciding the dispute as an equality issue. The deliberate use of Quran
and the endeavors to interpret it in a particular manner evoked the wrath of the Muslim
conservatives, who stressed community fears of the loss of freedom of religious
practice. Finally, the Government, yielded to pressure from the orthodox members of
173

1985 AIR 945

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the Muslim community and, without any consultation, passed the Muslim Women’s
Act, 1986, in spite of protest from progressive Muslims and feminists. This Act
ostensible protects women but in reality protects the husband by not requiring him to
pay maintenance. It is highly discriminatory towards Muslim women in that they are
now precluded from the purview of S.125 of the Criminal Procedure Code which had
originally protected Shah Bano. Specific requirements of the new Act also make it
much more likely that a Muslim woman will be required to conduct a court case in order
to obtain any maintenance at all. Thus, although the Act nowhere stipulates this, the
rights available to the Muslim women at the time of enactment of this Act were
abrogated. By indulging in votebank politics, the government of the day hastily drafted
this piece of legislation so as to confirm to the conservative and traditional view of the
Muslim law governing ‘maintenance’ of divorced women.

Inheritance: Under the Hindu law, the Mitakshara branch of law that primarily
governs succession amongst Hindus in the country denied to a Hindu daughter a right
by birth in the joint family estate and this flowed logically from the fact that her place
in the paternal family was only temporary as she was belonged to her husband’s family
on marriage. Modern day amendments to Hindu law of succession gave Hindu widows
the right of succession her husband’s estate. Till recently, Hindu law was still
discriminatory in that the Hindu Succession Act, 1956 excluded the daughter from
coparcenary ownership of ancestral property. In 2005 the Parliament, by an
amendment, took a radical but much-awaited step towards ensuring equality between
Hindu men and women as far as succession is concerned, and conferred upon
daughters the status of coparceners in the family of their birth, thereby bringing an end
to the centuries-old rules of Hindu inheritance that have lost their relevance and
justifications. Though the full extent of implications of this amendment are yet to be
observed, it is nonetheless a commendable and desired step in the effort to check inbuilt biases against women in personal laws of this country. More importantly, this
radical amendment was brought by the Parliament without facing any resistance or
impediment on the part of the Hindu community.
Islamic law prescribes, in almost all instances, that a man’s share of the inheritance
is double that of a woman in the same degree of relationship to the deceased. This

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aspect of Islamic rules is most vehemently criticized for its discrimination against
women, as it is a manifest sample of unequal treatment.

Guardianship and Adoption: A mother has been assigned a statutorily subservient
position in the matter of guardianship and custody of her children. The father is
designated the first natural and legal guardian of his minor; the mother is the natural
guardian only after the father. Under Muslim law, the father is the sole guardian of the
person and property of his minor child. Adoption is a salient feature of Hinduism, more
so because the concept is alien to Christian, Muslim and Parsi law unless custom and
usage among the above sects permit it. The Hindu Adoptions and Maintenance Act,
1956 statutorily recognizes adoption and is applicable to Hindus. The Act brought
about significant changes to the law of adoption amongst Hindus and has improved
the position of women in this regard. However, despite these changes, adoption is
another area in family relations where a female suffers discrimination based purely on
her marital status. As with other aspects of Hindu personal law, amendments have
recently been proposed so as to give women the same rights as men to guardianship
and adoption of children irrespective of marital status.
THE UNIFORM CIVIL CODE: LEGAL PERSPECTIVE
The Supreme Court first directed the Parliament to frame a UCC in the year 1985 in
the case of Mohammad Ahmed Khan v. Shah Bano Begum174, popularly known as the
Shah Bano case. In this case, a penurious Muslim woman claimed for maintenance
from her husband under Section 125 of the Code of Criminal Procedure after she was
given triple talaq from him. The Supreme Court held that the Muslim woman have a
right to get maintenance from her husband under Section 125. The Court also held
that Article 44 of the Constitution has remained a dead letter. The then Chief Justice
of India Y.V. Chandrachud observed that, "A common civil code will help the cause of
national integration by removing disparate loyalties to law which have conflicting
ideologies"
After this decision, nationwide discussions, meetings, and agitation were held. The
then Rajiv Gandhi led Government overturned the Shah Bano case decision by way

174

AIR 1985 SC 945

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of Muslim Women (Right to Protection on Divorce) Act, 1986 which curtailed the right
of a Muslim woman for maintenance under Section 125 of the Code of Criminal
Procedure. The explanation given for implementing this Act was that the Supreme
Court had merely made an observation for enacting the UCC, not binding on the
government or the Parliament and that there should be no interference with the
personal

laws

unless

the

demand

comes

from

within.

The second instance in which the Supreme Court again directed the government of
Article 44 was in the case of Sarla Mudgal v. Union of India175. In this case, the
question was whether a Hindu husband, married under the Hindu law, by embracing
Islam, can solemnise second marriage The Court held that a Hindu marriage
solemnised under the Hindu law can only be dissolved on any of the grounds specified
under the Hindu Marriage Act, 1955. Conversion to Islam and Marrying again would
not, by itself, dissolve the Hindu marriage under the Act. And, thus, a second marriage
solemnised after converting to Islam would be an offence under Section 494 of the
Indian Penal Code. Justice Kuldip Singh also opined that Article 44 has to be retrieved
from the cold storage where it is lying since 1949. The Hon’ble Justice referred to the
codification of the Hindu personal law and held, "Where more then 80 percent of the
citizens have already been brought under the codified personal law there is no
justification whatsoever to keep in abeyance, any more, the introduction of the ‘uniform
civil code’ for all the citizens in the territory of India."
The Supreme Court’s latest reminder to the government of its Constitutional
obligations to enact a UCC came in July 2003 when a Christian priest knocked the
doors of the Court challenging the Constitutional validity of Section 118 of the Indian
Succession Act. The priest from Kerala, John Vallamatton filed a writ petition in the
year 1997 stating that Section 118 of the said Act was discriminatory against the
Christians as it impose unreasonable restrictions on their donation of property for
religious or charitable purpose by will. The bench comprising of Chief Justice of India
V.N. Khare, Justice S.B. Sinha and Justice A.R. Lakshamanan struck down the
Section declaring it to be unconstitutional. Chief Justice Khare stated that, "We would
like to State that Article 44 provides that the State shall endeavour to secure for all
citizens a uniform civil code throughout the territory of India It is a matter of great
175

AIR 1995 SC 153

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regrets that Article 44 of the Constitution has not been given effect to. Parliament is
still to step in for framing a common civil code in the country. A common civil code will
help the cause of national integration by removing the contradictions based on
ideologies." Thus, as seen above, the apex court has on several instances directed
the government to realise the directive principle enshrined in our Constitution and the
urgency to do so can be inferred from the same.
CONCLUSION
The framers of our Constitution did not impose the uniform civil code because it was
believed that there was insecurity within minorities and that with time they would grow
in confidence and articulate the need for reforms within the community. Unfortunately,
each time a communal riot takes place and the perpetrators go scot-free, it shatters
the confidence of minorities and halts the process of reform. But seven decades is a
long time to wait for justice. The debates in India have gone the way of the secularists
and recent rulings of the Supreme Court calling for Uniform Civil Code has not
witnessed the protests and alarms that took place following the Shah Bano case in
1985. It is quite possible that different orthodox communities see a Uniform code as a
fait accompli after 67 years of India’s independence. The matter is far more political
than legal. Every time the issue has come up, there have been angry words from both
sides of the debate. Religious fundamentalism must go, social and economic justice
must be made available to the so-called minority and oppressed groups and their
dignity should be ensured to achieve this dream of one India, one society and one
Law. The uniform civil code will ensure equality, unity and integrity of the nation and
justice for both men and women. We must depoliticize the uniform civil code. The
secular country like India needs a uniform civil code.

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THE ROAD TO A GLOBAL LAW – INDIAN DESIGN LAWS
MANIK SETHI AND SMEEKSHA PANDEY
AMITY LAW SCHOOL, NOIDA, AMITY UNIVERSITY, U.P

ABSTRACT
Industrialization is a factor which resulted in the mushroom growth of various laws.
Earlier the designs of craftsmen were recognized as subject matter of protection. Their
livelihood was depended on their new designs. The value attached to the product of
design was for social benefit. So when for example, the UK textile industry was
thriving, it was the designs applied to fabrics that were perceived to be of particular
value. Copyright Law used to extend protection to new and original designs but with
the passage of time society started valuing differently the design from its product and
thus the artistic value of the product increased day by day and became a deciding
factor for the increased sale of product. Fascinating designs increased the value of
products and became a profit making factor. As society began to “recognize value in
different forms of artistry , from books to fabrics to fine arts, and as technological
developments facilitated copying of these different art forms, the law responds in a
piecemeal fashion , conferring copyright protection upon whichever form of design was
under threat at the time. Designs are also termed as Industrial property and thus
named to protect industrial designs. These are known as Industrial Designs because
these are the major factors for the growth of industries. Industrial designs are applied
to a wide variety of industrial products and handicrafts: from technical to medical
instruments to watches, jewelry and other luxury items, from house wares to electrical
appliances to vehicles and architectural structures, from textile designs to leisure
goods.
The Designs Act of 1911 was passed by the then British Government of India and
since then extensive amendments have been made in the Designs Act. In the
meanwhile India has made tremendous progress in the field of science and
technology. There has been considerable increase in the registration of designs. To
provide more effective protection to registered designs and to promote design activity
it has become necessary to make the legal system of providing protection to industrial
designs in a more efficient manner. It is also intended to ensure that the law does not
unnecessarily extend protection beyond what is necessary to create the required
incentive for design activity while removing impediments to the free use of available
designs. To achieve these objectives and in order to repeal the Designs Act, 1911
which has been extensively amended, the Designs Bill was introduced in the
Parliament and the Designs Act of 2000 was passed.
The aim of the Article is to convey the importance of Design Act, 2000, and how
design is very important in this competitive economy.

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INTRODUCTION
Industrialization176 is a factor which resulted in the mushroom growth of various laws.
Earlier the designs of craftsmen were recognized as subject matter of protection. Their
livelihood was depended on their new designs. The value attached to the product of
design was for social benefit. So when for example, the UK textile industry was
thriving, it was the designs applied to fabrics that were perceived to be of particular
value.
Copyright Law177 used to extend protection to new and original designs but with the
passage of time society started valuing differently the design from its product and thus
the artistic value of the product increased day by day and became a deciding factor
for the increased sale of product. Fascinating designs increased the value of products
and became a profit making factor. As society began to “recognize value in different
forms of artistry , from books to fabrics to fine arts, and as technological developments
facilitated copying of these different art forms, the law responds in a piecemeal fashion
, conferring copyright protection upon whichever form of design was under threat at
the time.
Designs178 are also termed as Industrial property and thus named to protect industrial
designs. These are known as Industrial Designs because these are the major factors
for the growth of industries. Industrial designs are applied to a wide variety of industrial
products and handicrafts: from technical to medical instruments to watches, jewelry
and other luxury items, from house wares to electrical appliances to vehicles and
architectural structures, from textile designs to leisure goods.
To be protected under most national laws, an industrial design must be new or original
and non- functional. This means that an industrial design is primarily of an aesthetic
nature, and any technical features of the article to which it is applied are not protected
by the design registration. However those features can be protected by a Patent.

MEANING OF DESIGN179
Intellectual Property is the property, which has been created by the exercise of
Intellectual Faculty. It is the result of person’s intellectual activities. Thus intellectual
property refers to creation of mind such as inventions, designs for industrial articles,
literary, artistic work, symbols which are ultimately used in commerce. Intellectual
Property rights allow the creators or owners to have the benefit from their works when
these are exploited commercially. These rights are statutory rights governed in

176

file:///C:/Users/WELCOME/Desktop/article%2027th%20september%202016/Industrial%20design%20%20Wikipedia,%20the%20free%20encyclopedia.html
177

file:///C:/Users/WELCOME/Desktop/article%2027th%20september%202016/Copyright%20In%20India%20%20Copyright%20laws%20-%20Copyright%20office%20-%20Copyright%20Registration%20Procedure%20%20Copyright%20Process.html
178
http://www.ipcell.iisc.ernet.in/ip/industrialdesigns.html
179
http://www.teriin.org/div/briefing_paper_industrial_designs.pdf

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accordance with the provisions of corresponding legislations. Intellectual Property
rights reward creativity and human endeavour which fuel the progress of humankind.
The intellectual property is classified into seven categories that are180:





Patent
Industrial Design
Trade Marks
Copyright
Geographical Indication
Layout designs of Integrated Circuits
Trade Secret

Design means only “the feature of shape, configuration, pattern or ornament or
composition of lines or colors or combination thereof applied to any article weather two
dimensional or three dimensional or in both forms, by any industrial process or means,
weather manual , mechanical or chemical , separate or combined, which in the finished
article appeal to and are judged solely by the eye, but does not include any mode or
principle or construction or anything which is in substance a mere mechanical device,
and does not include any trade mark , as defined in clause 5 of section 2 of The Trade
and Merchandise Marks Act , 1958 , property mark or artistic works are defined under
Section 2 (c) of The Copyright Act , 1957.

NEED FOR PROTECTION OF DESIGN181
Designs, which are having a major share in the economic market in the ever increasing
demands for products in the market is a neglected part of commercial law which is
slowly gaining importance but still lack acknowledgement as compared to other
branches of Intellectual Property Laws and Commercial Laws .
In today’s commercial world the importance and impact of Designs cannot be
overruled. Design makes the manufacturer’s product distinguishable from other
competitive products. Design, at several times, influences the consumer’s
determination and desire to buy or not to buy a particular product. Consumers who
wish to purchase an article for use are often influenced in their choice not only to
practical efficiency but the appearance also. Designs are providing aesthetic beauty
to the product which attracts consumers. From distinguishable design even the
consumer analyzes the quality of the product. It is analyzed by the consumer that how
a product would be whose manufacturer has spent so much in creating it’s new and
original design. Design influences the sale thus there is a desire in the corporate world
to improve the designs so as to enhance the sale of their product for making maximum
profits. It is worth mentioning here that generally , an advertisement only draws the

180
181

http://www.uspto.gov/patent/laws-and-regulations/examination-policy/seven-classification-design-patents
https://yourstory.com/2015/07/what-is-industrial-design-protectiontheir-designs/

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consumer to the product whereas the design and it’s outlook plays an important role
in converting the desire of the consumer into the demand and consequent sale thereof.
The importance of the Designs in consideration the Design Act, 2000182 was
enacted which is giving protection to novel designs devised so as to be applied to
articles to be manufactured, marketed commercially and sold. Designs Act is
distinguished from the Patent Act which protects invention. It is also different from the
copyright act which aims to protect the copyright of the original artistic effort in
producing a work which is copyright protected. The primary concern of the Design Act
is what the finished article is to look like and to prevent the manufacture and sale of
article of a design not substantially different from the registered design. The emphasis
is therefore upon the visual image conveyed by the manufactured article. There is a
need to check design theft or infringement of design rights of creator and this can be
done with effective law implementation. The substantial and featured reason of
protection and strengthening Design Law is important.
DESIGN PROTECTION IN INDIA183
India is a hub of intellectual creation since ancient times. Indian kings being beauty
lovers used to reward every aesthetic beauty which appeals to their eye. The ancient
jewellery design, designs of clothes, shoes, accessories and utensils are live
examples of the fact that Indians are applying their intellect to make everything around
them beautiful. But in ancient, Mughal period none of the incident is found where the
creator sought the protection of its designer creation under law except seeking reward
from the king.
After industrial revolution, it became possible to give mass articles a unique shape by
industrial process. Manufacturers are paying adequate attention to the designs of the
articles they produce. For this purpose they invest substantial capital and carry out
research. Legal protection becomes necessary for the creation of new designs and
their application to articles. The protection now afforded to designs in India by Design
Protection Act, 1911 has proved to be inadequate and obsolete.
The first designs legislation enacted in India was the Patterns and Designs Protection
Act, 1872 which extended to the inventors of new patterns and designs in British India
the exclusive privilege of making, selling and using the invention in India or authorizing
others to do so for a very much short duration of time. Later the Invention and Designs
Act, 1888 was enacted to consolidate and amend the laws relating to the protection of
inventions and designs.
In India previously the law of designs was governed by the Design Act 1911. Since the
enactment of the Design Act 1911 considerable progress has been made in the field
of Science and Technology. Hence the legal system for the protection of industrial
design required to be made more efficient in order to ensure effective protection to
registered designs. It was also essential to promote design activity in order to promote
the design element in an article of production. The Design Act, 2000, repealed the Act
182
183

http://www.shareyouressays.com/89722/important-legal-provisions-of-the-design-act-essay
https://en.wikipedia.org/wiki/Industrial_design_right

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of 1911 and it aims at protecting the designs in India and bringing the Indian Law at
par with International Law. India’s Design Act, 2000 complies with the Articles 25 and
26 of TRIPS agreement184 which stresses on design protection.
The new Act has come into existence on 25th May 2000 and a new act is consolidating
and amending Act relating to the protection of designs.
NATURE AND SCOPE OF DESIGN LAW185
The Design Act is enacted for the purpose of providing statutory protection to the
designer for the industrial designs which pass the tests of novelty and originality
provided by the statute. The Protection to creator is neither absolute nor permanent
and is granted for original Industrial Designs for limited period which extends to 10
years and also with 5 years renewal thereafter and not beyond the same. Design Act,
2000 specifically protects the industrial designs like shape and configuration of the
“article”. Design Act, 2000 is a complete code in itself though new technologies with
new designs are open to be protected under the Act has made it a developing law.
The Act provides for certificate of registration of the designs under Section 9 as an
evidence of ownership rights of the creator and the said design upon registration
confers the copyright in the said design for a period of 10 years as envisaged under
Section 11. Such term of the design also indicates that the design right is a statutorily
conferred right for limited period and there is no room of any other right to exist except
the one conferred by the Act. Remedy for piracy of a registered design is provided
under the Act wherein the condition is that the said piracy will only happen during the
existence of copyright in the said design.
CONSOLIDATING AND AMENDING STATUTE186
The present Act of 2000 is a consolidating and amending statute. United Kingdom
Patents and Designs Act were enacted in 1907 and it became the basis of Indian
Patents and Designs Act, 1911 which was repealed later on to give the present form
of Statute that is the Design Act, 2000. Consolidating Statute means that the statute
in which law is collected and consolidated to shape and to provide similar provisions
on similar subject in one Act. Amending Statute indicates that the present statute is
made after making amendment in the statute already existing on the same subject.
DESIGNS187
Design is defined in Section 2 (d) of the Design Act, 2000 as follows:
Design means only the feature of shape, configuration, pattern, ornament or
composition of lines or colors applied to any article whether in two dimensional or three
dimensional or in both forms , by any industrial process or means , whether manual ,
mechanical or chemical , separate or combined , which in the finished article appeal
184

https://www.wto.org/english/docs_e/legal_e/27-trips_04b_e.htm
http://www.lakshmisri.com/News-and-Publications/Archives/Publication/Design-protection-in-India
186
https://www.scribd.com/doc/53318556/Evolution-of-Designs-Act-in-India-Protection-of-Industrial-Designsunder-International-IPR-Regime
187
http://www.lawzonline.com/bareacts/designs-act/designs-act.html
185

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to and are judged solely by the eye, but does not include any trade mark as defined in
clause (v) of sub – section (1) of Section 2 of the Trade and Merchandise Mark Act
, 1958 or the property mark as defined in Section 479 of the Indian Penal Code or any
artistic work as defined in clause (c) of Section 2 of Copyright Act, 1957.
Thus Design is the only physical features of the object in any form which is appealable
to eye and increase its consumer value. It is specifically excluding Trade Marks and
Property Marks. Thus it is the prior obligation of judiciary to demarcate the difference
between the legal protection extended to a design or a mark.

ESSENTIALS FOR CLAIMING PROTECTION UNDER DESIGN ACT, 2000188
The definition is exclusive and only those which satisfy the following conditions can
be brought under the purview of Design:
1. Design primarily represents features of shapes, configuration, pattern,
ornament, color or composition of lines.
2. Such shapes, configuration, pattern, ornament, color or composition of lines
should be applied to any article.
3. Such article can be two dimensional or three dimensional or both.
4. Any of these features may be one that is applied by any Industrial Process or
means which may be manual, mechanical, chemical, separated or combined.
5. Such an application of the aforesaid features in the finished article shall
appeal to and judged solely by the eye.
6. It does not include any mode or principle of construction or anything which is
in substance a mere mechanical device.
7. It does not include any trade mark as defined in clause (v) of sub – section
(1) of Section 2 of the Trade and Merchandise Mark Act , 1958 or the
property mark as defined in Section 479 of the Indian Penal Code or any
artistic work as defined in clause (c) of Section 2 of Copyright Act, 1957.
OBJECT OF DESIGN ACT 2000189
The object of the Act is to protect the Aesthetic Shape and not function or functional
shape. In order to get statutory protection under the Design Act, 2000 the design has
to satisfy the definitional requirements of Section 2 (d). As per the definition design
does not include any mode or principle of construction or anything which is in
substance a mere mechanical device.
In Escorts Construction Equipment Ltd vs. Action Construction Equipment Pvt
Ltd,1999 PTC 36(Del), 190, the Delhi High Court had occasion to interpret this part of
188

http://www.legalservicesindia.com/article/article/registration-of-shape-of-goods-as-design-1348-1.html
https://advocatemmmohan.wordpress.com/2011/09/15/the-sole-purpose-of-the-designs-act2000-isprotection-of-the-intellectual-property-right-of-the-original-design-the-object-behind-this-enactment-is-tobenefit-the-person-for-his-research-and-labour/
190
https://indiankanoon.org/doc/1315312/
189

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definition (as contained in the Designs Act, 1911) . This case was concerning the
alleged illegal copying of a design by the respondent of Pick – N-Carry Hydraulic Self
Mobile Cranes manufactured by the plaintiff. Though the case was not directly coming
under the Design Act, the Court examined whether the said design was capable of
registration under the Design Act. After examining the definition of design under the
Act, the Court held that the design in question was incapable of registration. According
to the Court the definition made it amply clear that the primary object of the Act was to
protect shape and not function, or functional shape. Rejecting the contention of the
plaintiff who claimed protection of certain specific parts of the crane, the Court held:
“The aforesaid parts of the crane are made in a particular shape so as to interrelate
with others mechanically. These parts of the crane are not made to appeal to the eye
but solely to make the crane work or function. Most of the key components or parts,
unseen in the crane for which they were required, had only to pass the test of being
able to perform their function. They would be judged by performance and not by
appearance. Consequently, the aforesaid key components or parts are incapable of
being registered as Designs”.
SALIENT FEATURES OF DESIGN ACT, 2000191
A design is register able in India only if it is new or original and the said design has
not been disclosed to the public anywhere in India or in any country by way of use or
by publication or in any other way prior to the date of filing. It should significantly be
distinguishable from the known designs or combinations thereof. In addition, the
design should not contain any scandalous or obscene matter. Once the design is
registered, the applicant shall have the copyright of the design for duration of ten years
from the date of registration. This duration can be further extended for a period of five
years, if the applicant desires so, by applying an extension in a desired manner.
Currently, any person, whether a citizen of India or not can file an application for
registration of design which he claims to be a proprietor or owner. Protection is
extended to both natural and legal person. However recently the Government of India
has notified the Draft Designs Amendment Rule (2013) which proposes categorization
of the applicants. As per the Draft Amendment Rule there would be two categories of
applicants. Separate fee structure has been designed for each category of person.
Such classification is for the purpose of procedural convenience and maintenance of
records. The fee structure of a person other than natural person is more than that of
natural person.
APPLICATION FOR DESIGN REGISTRATION192
Design Act, 2000, any person who claims to be the proprietor of any new or original
design can apply for the registration of design.
A foreigner can also apply for the registration of the design. However the convention
followed is that if a country does not offer the identical registration right to Indian citizen

191
192

http://sgintellectual.com/ip/industrial-designs/
http://www.ssrana.in/Intellectual%20Property/Designs/Design-Procedure-in-India.aspx

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for their designs in their country, its citizen would not be eligible to apply for registration
of design in India.
“If there are two persons each of who has produced a similar design and
communicated the fact of such authorship to the other, neither of them alone is the
proprietor of a new or original design. There is Joint Authorship of the design”.
PIRACY OF A REGISTERD DESIGN193
Piracy is a term which is recent and used for technological thefts. Infringement of a
copyright in Design is termed as, Piracy of a registered Design. It is not lawful for any
person during existence of copyright to do the following acts without the consent or
license of the registered proprietor of the design. Design Act, 2000, lays down that
following acts amount to piracy:


To publish or to have it published or expose for sale any article of the class in
question on which either the design or any fraudulent or obvious imitation has
been applied.
To either apply or cause to apply the design that is registered to any class of
goods covered by the registration, the design or any imitation of it.
To import for the purpose of sale any article belonging to the class in which
the design has been registered and to which the design or a fraudulent or
obvious imitation thereof has been applied.

JUDICIAL REMEDY194
Civil Remedies are available in case of infringement of Design. The judicial remedy
for infringement of a registered design recommended in the Act is damages along with
an injunction. Section 22 (2) stipulates remedy in the form of payment of a certain
sum of money by the person who pirates a registered design. Jurisdiction to admit and
hold trial of infringement case is with court not below than District Court. When a Court
makes a decree in a suit involving piracy it shall send a copy to the Controller who
shall make an entry in the register of Designs.

CONCLUSION195
The Industrial Design being a Brain child of 19th Century is seeking protection since
then and Law being in efficient to serve the interests of people is a subject matter of
Jurists debates. Though the Act of 2000 has made a remarkable change in the old law
yet it needs to bring at pace with changing technologies.
A rationale basis for the protection of Designs is to reward the designer’s creativity
and to provide incentives for future contributions, however a balance must be
maintained between such reward and the long term goal of promoting competition
193

http://www.lawinfowire.com/articleinfo/piracy-registered-designs
http://www.mondaq.com/india/x/515756/Copyright/Judicial+Analysis+Of+Order+Of+Abandonment
195
Summary of the research work
194

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within a market based economy. The owner of the registered design right will be in a
position to oppose infringement in relation to goods in respect of which the design has
been registered. Designs which appeal to the eye can be of a tremendous commercial
value. So there is a real need to register the design as a registered design. It is the
only way to prevent piracy of Designs and to encourage the origin of new and original
ones. The Design Act, 2000to a great extent serves as an umbrella protection for
Industrial Designs.

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JUDICAL REVIEW IN INDIA & UNITED KINGDOM AND THEIR
LIMITATIONS
SHIVAM SINGHAL
HIDYATULLAH NATIONAL LAW UNIVERSITY, RAIPUR
ABSTRACT
The power of judiciary to review and determine any act of the legislature or executive
in order to maintain the supremacy of the constitution and also the spirit of constitution
by striking down the irregular, arbitrary acts of legislature or executive. The Courts in
India have power to nullify anything in contravention to the provisions of the
Constitution whereas in Court of United Kingdom have limited when it comes to
challenging the acts of legislature. There are limitations as to the judicial review of both
in India and UK, though former has more scope and widened area than the later. In
UK also, there has been a changing trend where the judiciary has in some matter given
power to review the acts of Legislature. This judicial review is the outcome of
separation of powers, where the arbitrary acts of legislature or administrative actions
can be challenged by the court and in order to keep up with the interests of the citizens
they can be declared ultra vires of the Constitution.
JUDICIAL REVIEW IN INDIA
The Guardian of Constitution, protector of fundamental rights, arbiter in cases of
disputes between center and state, interpreter of law and epitome of justice, Judiciary
of India, one of the three wings of Indian Political system along with Legislature and
Executive, is considered to be one of the most important functionary in protecting the
interests of the citizen through its mechanism of providing justice. Constitution of India,
has very aptly defined the concept of separation of power and states that all three
wings are independent in their functioning but then in a democracy like India’s, world’s
largest, with incredible diversity , beliefs and ideologies (political) there have been
many instances where judiciary has interfered and has succeeded in making changes
in the working of legislature through the doctrine of judicial review of late in the 1970’s
where the laws made by the legislature were inconsistent with the constitutional
provisions and were declared ultra vires by the judiciary.

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The judicial review can be simply defined as the power or weapon given to the
Judiciary who can declare the draconian laws, policies of legislature and executive
functions invalid or ultra vires, who are in contravention to the written con. The
importance of judicial review is that it keeps up the spirit of the constitution, maintain
the constitutional supremacy, democratic nature of constitution, safeguards
fundamental parts defined under part III of the Constitution of India.
Judicial Review can be simply defined as the power of judiciary to review and
determine the validity of a law or an order formulated by the legislation and executed
by the executive. The judiciary has the power to invalid any law or legislation or term
it as ultra vires which is in contravention to the fundamental rights u/art 13 of the
Constitution of India or in that matter to the provisions of the constitution, through the
mechanism of Judicial Review.196 Thus it is the exclusive power of the Judiciary to
nullify any law in contravention to the Part III of the Constitution197 and Supreme Court
has time and time used it in keeping the interest of an individual’s fundamental rights.
Moreover the judicial review is the mechanisms of check and balances and they can
exercise their superior power, conferred by constitution, on legislative actions,
constitutional amendments and on the administrative actions.
To understand the meaning of judicial review let us first look at the dictionary meaning
of the term “review”, it is says “the act of looking over something (again) with a view to
correction or improvement”.198 It clearly says it is an act of looking over something in
order to correct or improve it. Talking about the legal meaning to it, it says “it is the
revision of the sentence or decree of one court by a higher court. It means a court’s
power to hold statutes invalid because of conflict with the constitution; the power of a
court to pass upon the Constitutionality of acts of a co-ordinate branch of
government”.199

196

In the case of Maneka Gandhi v Union of India, AIR 1978 SC 597, Supreme Court interpreted the Part III of
the Constituion and laid down two provisions (i) Any law that abridges or takes away the rights conferred under
Part III is void (ii) Every person is entitled to approach the Supreme Court directly to enforce his/her
fundamental rights under Part III.
197
Remdeo Chahan V Bani Kant Das , AIR 2011 SC 615
198
Shorter Oxford English Dictionary. 10th Edn., (1999)
199
Craig. R Ducat on Constitutional Interpretations.

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In Black’s law dictionary it is defined as “a court’s power to review the action of other
branches or levels of government especially the court’s power to declare immediate
legislative and executive actions as being unconstitutional”.200
In the very famous English case whose principle was followed by Indian Court says
that Judicial Review as the words imply is not an appeal from a decision, but a review
of the matter in which the decision was made.201 Judicial Review is the authority of the
Courts to declare void the acts of the legislature and executive, if they are found in the
violation of the provision of the Constitution. Judicial Review is the power of the
Highest Court of a jurisdiction to invalidate on Constitutional grounds, the acts of other
Government agency within that jurisdiction.202
Judicial Review is found on the assumption that the Constitution is the supreme law
of the land. As such, all organs of the government—Centre or State derive their powers
from this assumption. All of them work within the purview of the Constitution and do
not contravene its provisions. In other words, the Supreme Court possesses the power
of declaring any order passed by the executive or act passed by legislature as invalid
or ultra vires. Thus becomes one of the most important as far as judiciary is concerned
which can curb the powers of legislature and executive by exercise its power of judicial
review.
It is said to maximize the working capabilities in terms of power authority and
legitimacy is concerned and transparency of the judicial system, it has to be primarily
be independent of other wings and the decisions should be delivered without any
political or executive interference, but in a democratic system like in India, where
policies, laws etc. are formulated by the political influences203 there the role of judiciary
which was primarily holding up the democratic set up and other extraordinary features
of constitution. This task was done with the help of doctrine called Judicial Review,
whose objective is to ensure that the authority does not abuse its power and the
individual receives just and fair treatment and not to ensure that the authority reaches
Black’s Law Dictionary, 10th Ed.
Chief Constable of North Wales Police v Evans, (1982) 3 All ER 141; Geetanjali Patnaik v State of Orissa
AIR 1996 Ori 157.
202
Kailash Rai, Administrative Law, Allahabad Law Agency, Haryana, 2006 p 395. See also L.P Berths ,
Constitution and the Supreme Court, p.16
203
Mohammed Ahmed Khan v Shah Bano Begum, AIR 1985 SC 945, Rajiv Gandhi govt crumbled under the
vote band politics and infamously overturned the judgement of Supreme Court and subsequently enacted the
Muslim Women (Protection of Rights in Divorce ) Act,1986
200
201

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a conclusion which is correct in the eye of law. As observed by the Supreme Court in
Minerva Mills Ltd. v Union of India204 and few other cases which followed.
JUDICIAL REVIEW IN UNITED KINGDOM
Judicial review had its origin from the common law. The scope of judicial review is
narrower in England, when compared with that of United States or India. The reason
being that the British Judges are aware of the fact that they are at the mercy of the
parliamentary sovereignty.
Judicial Review in England does not hold that authority as is evident in Countries like
USA, Canada and India etc. It is because of the sole reason that there lies the concept
of parliamentary sovereignty, which means that laws, act, rules, legislations enacted
by the parliament cannot be challenged by the courts. The Parliamentary sovereignty
has two components. Firstly, it is only the parliament who can repel or enact any law
or legislation and secondly, no one including the courts have the authority to question
the actions taken by the parliament or to challenge any law framed by the Parliament.
Thus it can be easily said that the parliament have the smooth overriding effect over
the judiciary.
Inevitably, the million dollar question arises, what is the power thus judiciary possess
as far as doctrine of judicial review in England is concerned. In early 1900’s what
judiciary can do is to delay and irritate the parliament by the holding –in of statutes.
Ultimately it will be the Parliament who will triumph but there was definite delay in the
law making process due to the courtesy of Courts. An example of holding –in could be
of Married Women’s Property Act, 1882 which was interpreted in Harkness and
Allsopp’s Contract, re205 , in which the court was successful in delaying the impugned
rule for more than 11 years. Later, in 1940’s in Liversidge v Anderson206, the majority
of the judges contended that in times of crisis, at least, English Judges are prepared
to apply something of a “presumption of constitutionality” to legislation passed by
Parliament and are ready to be at loggerheads with parliament.207

Minerva Mills Ltd. V Union of India, AIR 1980 SC 725, Hon’ble Justice P.N Bhagwati conferred judicial
review as the basic strucuture of the constitution and declared that judicial review is a vital principle of our
constitution. See also Fertilizer Corpn. Kamgar Union v Union of India,(1981) 1 SCC 568
205
Harkness and Allsopp’s Contract, re205 , (1896) 2 Ch D 358
206
Liversidge v Anderson, (1941) 3 All ER 338 (HL)
207
McWhinney , Judicial Review (1969) 48
204

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Coming to the recent developments in the Judicial Review of England in past couple
of decades, a significant modification took place with the enactment of Human Rights
Act, 1998 which was passed on the basis of The European Convention for the
Protection of Human Rights and Fundamental Freedom, heralded in the new era for
Judicial Review. Interestingly, the introduction of the said act describes itself as
“That anything which is in contravention to the rights conferred under European
Convention Rights, the Courts in England have the remedy to strike it down, though
ultimately it stands firm on the principle of Parliamentary Sovereignty but has the
power to
Thus it can be easily vouched that there has been substantial change in the doctrine
of Judicial Review in England, and the coming time especially with the ever increasing
importance of the Constitution, the doctrine of Judicial Review in England promises a
lot.
LIMITATION OF JUDICIAL REVIEW
INDIA
It is in conformity that the Judiciary has the upper hand when it comes to challenging
the nature and scope of any law made in contravention with the Constitution.
Presently, anything which is in contravention to the Constitution or deflects from the
spirit of the constitution can be held by ultra vires by the Judiciary. Indian Constitution
is around 67 years old, and it has undergone some tremendous changes and
modifications. Similarly, the curious case of judicial power is no exception from 1 st
Constitutional Amendment Act, 1951 to the case of I.R Coelho208 , significant
amendments and changes have been made. One can carefully that these changes
over a span of 6 decades have been positive, in the sense that it strengthens the
democratic attitude of the nation, Constitutionality more proactive and sound. Lastly,
the ideology of Constitution which is provided in Preamble is emphasized more than
ever.
Interestingly, after all those landmarks judgements, amendments, check and
balances, there are still many provisions from the Constitution itself from which judicial

208

I.R Coelho v State of Tamil Nadu , (2007) 2 SCC 1

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review is precluded or its purview has been limited. Starting with the limited power of
judiciary first comes the restraint in the area of executive provisions of the Constitution.
Article 53 of the Constitution of India, provides for executive power vested in the
President of the nation, in conformity with the provisions of the Constitution, i.e on the
advice of the council of ministers. A point of consideration here is that such advice
rendered by the Ministers to the President stands outside the ambit the Court or simply
the judicial review is precluded. Similar is the situation with the Governors of the State,
who exercises executive power on the advice of the Ministers provided under Article
163(3).
Several other powers of the President are kept away from the interferences and
screenings of the Court like under Article 72 and 161, which talks about the power of
President to grant pardon, remission, suspension and commutation of the sentences.
Also the power of the President to nominate 12 members to the Rajya Sabha or the
Upper House provided under Article 80 has been kept away the process of judicial
review.
Thus it can be said that the Court does not have substantiate interference in the
working of the executive heads of both the union and the state.
Moving further on the limits of judicial review, there were several act which were put
under the safety vouch of the 9th Schedule inserted through 1st Constitutional
Amendment Act, 1951 in order to bypass the system of judicial review or plainly to
keep them away from Courts reviewing, in an all 13 acts related to land reforms were
kept under this schedule, with an obvious aim of keeping them away from the scope
of judicial review. The rationale behind this was to restrict judiciary from unnecessarily
hamper the land reforms and the lesson was taken from the ruling of the Patna High
Court in the case of Kameshwar Singh v State of Bihar209. Initially, the laws which were
kept under 9th schedule were related to land reforms only but soon there were many
acts and regulations like Foreign Exchange Regulation Act, 1973, Conservation of
Foreign Exchange and Prevention of Smuggling Activities Act, 1974 were kept under
this schedule. There was this inevitable dilemma that these act, regulations, laws in
total 282 in number should be kept away from judicial screening or not? Finally a nine

209

Kameshwar Singh v State of Bihar, AIR 1951 Pat 91,

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judge bench of the Supreme Court ruled in I.R Coelho v State of Tamil Nadu210 where
court emphasized that “A law that abrogates or abridges rights guaranteed by Part III
of the Constitution may violate the basic structure doctrine or it may not. If former is
the consequence of the law, whether by amendment of any article of Part III or by an
insertion in the Ninth Schedule, such law will have to be invalidated in exercise of
judicial review power of the court”
Talking about the limitation of judicial review, an amendment known as “mini
constitution” i.e. The Constitution (42nd Amendment) Act, 1976 added two clauses
under Section 55, clause (4) and (5), providing that amendment of the constitution
cannot be challenged by any Court, and thus such amendments to be precluded from
judicial review. Ultimately, the onus was once again on the judiciary to struck down
such arbitrary rules, and rightly so in the landmark judgement of Minerva Mills211 where
a five judge bench with the majority of 4-1 only dissenting opinion was of P.N Bhagwati
J, held such impugned unconstitutional for the violation of judicial review , which itself
is a basic feature of the Constitution.
“Since the Constitution had conferred a limited amending power on the Parliament,
the Parliament cannot under the exercise of that limited power enlarge that very power
into an absolute power. Indeed, a limited amending power is one of the basic features
of our Constitution and therefore, the limitations on that power cannot be destroyed.
In other words, Parliament cannot, under Article 368, expand its amending power so
as to acquire for itself the right to repeal or abrogate the Constitution or to destroy its
basic and essential features. The donee of a limited power cannot be the exercise of
that power convert the limited power into an unlimited one”212
Thus, it can be concluded that there are limitations to the power of Judicial of reviewing
and in some cases they were imposed by either by legislature or executive, however
the judiciary in order to protect the interests the citizens and also upholding the
constitutional supremacy has to some distant effected their supremacy by their
judgements and have tried keeping the provisions regarding constitutional
amendments, fundamental rights , administrative actions etc within the scope of
210

(2007) 2 SCC 1
Minerva Mills v Union of India, AIR 1980 SC 1789
212
R.C. Bhardwaj, ed. (1 January 1995). Constitution Amendment in India (Sixth ed.). New Delhi: Northern
Book Centre. p. 12.
211

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Judicial Review, though through the doctrine of separation of power, there are still
many areas where judiciary have not encroached upon and have kept the spirit of
constitution uptight.
UNITED KINGDOM
The extent or reach of judicial review in UK is much narrower as compared to USA or
India, where courts have the power to challenge the laws made by the Parliament
directly, whereas in United Kingdom the horizons of judicial interference is much less.
There lies the concept of Parliamentary Sovereignty according to which the laws
formed by Parliament cannot be challenged by any order of Court.
In England, the ultimate source of power is the people, they are the sovereign power.
Thus the parliament has the utmost power of enacting any law and their Constitution,
which happens to be the Unwritten Constitution, does not provide any challenge to it.
Thus Parliament has absolute power in matter of forming a legislation and no matter
how illogical, arbitrary it may seems Court cannot challenge its authority. The twist in
the story lies in the fact that legislative acts of Parliament is called Primary Legislation
and those delegated by Parliament to form laws, policies etc are called Secondary
Legislation. Primary Legislation is the supreme in nature that is to say that it cannot
be challenged whereas secondary legislation which is administrative in nature are
subject to Judical Review in United Kingdoms.
Having said that the Primary Legislation cannot be challenged there is also an
exception to it, after the commencement of European Union and Human Rights Act
1998, it can be subjected to judicial review in some cases. Whereas, Secondary
legislation can be put under the purview of judicial review. Interestingly, there is no
exception to the Court’s power of reviewing the judicial review. Where in Secondary
Legislation , all the executive and administrative functions , rules , regulations .court
can review any of the actions and may declare ultra vires and unlawful
Thus in entirety judicial review is very limited in United Kingdoms because of the fact
that there is no written constitution which provides for reviewing of the legislative acts
and secondly the people holds the supreme power, which give Parliament the absolute
without any interference of the judiciary. But there are wind of changes which are

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noticeable in England, where judiciary is getting more proactive and trying to keep the
interests of the citizens intact by questioning the arbitrary acts of legislature.
CONCLUSION
The role of Judiciary is getting vital day by day, there was a time when the powers of
judiciary was very restricted especially during the 1950’s in India, where courts used
to take a safe measure of not interfering in the working of legislature and executive,
but slowly the Court developed an attitude of criticizing and scrutinizing the acts of
legislature and executive and in many cases when found in contravention to the
provisions they have struck them down, though our Constitution provides for the same,
but this humungous change can be broadly in United Kingdom where judiciary had no
role at all in with of working of Parliament, irrespective of the fact that how much
arbitrary , irrational it sounds, but then there also the changes started taking place and
Court power of review has been widened , they can now even challenge the acts of
Parliament i.e. Primary Legislation in some cases, and have full authority to challenge
the Secondary Legislation.
It can be attributed that the role of judiciary in keeping intact the Constitutional
Supremacy, Spirit of the Constitution and most importantly the interests of the citizens
has been immensely successful, the arbitrary rules, orders , legislations have been
very precisely been struck down. The Indian Judiciary has played a tremendous role
and has justified the power given to them by the Constitution itself in the form of
Judicial Review to maintain the supremacy and spirit of the Constitution. As said by
Holmes that life of law is not logic but experience. Hamilton, one of the framers of the
constitution of United States of America says that if there is conflict between
constitution and the law the judges should prefer constitution. In India it is reflected
100%.
Whereas, there should be more Expansion of judicial review in all the countries in the
world especially in context to United Kingdom, the power of judicial review of legislative
Acts i.e. .the Primary Legislation, should be given to the Courts in UK, because it
creates democracy in the minds of the people. One organ should be accountable to
some other organ in any manner, but it cannot encroaches its limits. It establishes the
concept of Rule of Law.

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As Justice V. R Krishnan Iyer said “Indian judges are prisoners of precedents laid
down by the Judicial Committee. The Constitution obligates judges; humanity, rather
than legality, must be our guide213 and also in the words of Justice P.N Bhagwati who
says ““The judge infuses life and blood into the dry skeleton provided by the legislature
and creates a living organism appropriate and adequate to meet the needs of the
society”.

REFERENCES
 Anirudh Prasad ,Chandrasen Pratap Singh, Judicial Power and Judicial Review
(2012), Eastern Book Company
 Deshpande, V.S., Judicial Review of Legislation (1975), Eastern Book
Company,
Lucknow.
 Durga Das Basu, Commentary on the Constitution of India, Volume V, 8 th Edn,
lexis Nexis.
 Dr. Jha, C.D., Judicial Review of Legislative Acts, (II Edition, 2009), Lexis Nexis
Butterworths Wadhwa, Nagpur.
 Bhandari Renu, Judicial Control of Legislation in India and USA (2001), Vol. I
&
II, University Book House Pvt. Ltd., Jaipur.
 Sir Michael Supperstone, James Goudie, Sir Paul Walker, Judicial Review
(2010),
IV Edition, Lexis Nexis, Delhi.
 Prof. Jain, M.P., Indian Constitutional Law (V Edition, 2008), Wadhwa and
Company, Law Publishers, New Delhi.
 Singh, M.P., Shukla V.N.’s Constitution of India (XI Edition, 2008), Eastern
Book Company, Lucknow.
 Dr. Pandey, J.N., Constitutional Law of India (XXXXIII Edition, 2006) Central
Law Agency, Allahabad.
 Sharma Kanahaiyalal, Reconstitution of the Constitution of India (2002), Deep

V.R Krishna Iyer, Chap 7, “Nine Judges Bench and Ninth Schedule to the Constitution”, in The Majesty of
the Judiciary (Universal Law Publishing Co.,2007)
213

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and Deep Publications Pvt. Ltd., New Delhi.

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SHOULD THERE BE MARKETS IN HUMAN ORGANS?
TANYA GOYAL AND GARVIT GUPTA
GOVERNMENT LAW COLLEGE, MUMBAI
ABSTRACT
The concept of the integrity of the body and human dignity has given way to ideas of
the divisible body and detachable organs as commodities. Many people die waiting for
organ transplants even though the number of usable organs far exceeds the number
needed for transplant. Markets for organs represent one plausible solution, but
policymakers are reluctant to establish organ markets despite potential for mutually
beneficial exchanges. While understanding the basic definition of the market in the
aspect of Demand and supply of the organs, the author in the paper will try to analyse
with the help of case studies involving both legal and ethical issues in the market for
Human organs. The paper works on the assumption that there still lacks certain law
both domestic and international in economizing Human organs apart from the fact that
their already exist an indivisible law, HOTA, 1994, etc. but their implementation largely
questions its practical borders and the mushrooming of black market. The paper will
further try to incorporate the argument of autonomy of the organ donor and how far
such autonomy can exercised by a donor alive (and its legal heirs in the case of Dead
donor), while considering the arguments developed from the weak agency or the gift
theory, in contrast, to considering themselves not to be property, unlike slaves, but to
be owners, possessors, lenders of property. The brief introduction to the concept of
markets for Human organs, distinguishes Kantian Moral Principle which the author
uniformly rejects, and contemporary non-Kantian Concept. The author will try to
explore utilitarian considerations and the principles of distributive justice with respect
to conceptual contours of exploitation; it’s both moral and legal aptitude, and its
relevance to the economy and furtherance to globalisation and the tailed debate. The
author while considering a single line of case will try to argue from different
philosophical lenses the perspective involving market for Human Organs, one of which
involves the utilitarianism approach and the feminist lens. The paper will also try to
explore the tension within morality -- involving "compliance incentives" and "reward
incentives" -- leading to a kind of counter-productivity and also morality of

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commercialization of human organs within the framework of several ethical theories.
The paper tries to encapsulate, that the concept of exploitation provides a useful
heuristic for moral thinking but cannot serve as the basis for a stand-alone moral norm
with a little reference to the legal backdrop. The above will be blended with
consideration to different jurisdictions and other religious practices and the running
market for Human organs.
INTRODUCTION
Every cell of human body now possesses utility value as a resource for use in
therapeutic interventions and/or scientific research.214In a country like India there are
thousands of people whose lives could be saved by the process of transplantation (of
organs, Liver or Kidney) but who die because organs for transplantation are not easily
accessible and available.215Even when some of the patients manage to obtain a
transplant, they often have to wait for years for an operation, during which their postoperative prospects deteriorate with the quality of life.216 Permitting live donors to sell
their organs in a competitive market upon some consideration (or not) to meet the
increasing demand can and is a sure way of increasing the supply.217 However there
is stalwart opposition for trade in Human organs. It is objected because they are
petrified that it will lead to destabilization of altruism (a wilful method of donation),
increase inequality, lure people to trade on inadequate information, coerce poor, be
analogous to slavery and diminish the availability of other options218. These objection
could be tackled by building a market system in which a part of it could be decided on
the basis of the equilibrium price (the intersection of demand and supply in the
market219) and the other part which is not heavily regulated but only to include means,
methods, price range, procurement etc. by the government. Such initiatives could help

Elizabeth Dominique, “Beyond the Market, A new approach of human biological materials”, January 2011,
Abstract.
215
“India Facing Acute Shortage of Organ Donors”, NDTV, Last Updated: August 06, 2014 17:16 IST, last visited
on 07-09-2016 at 11:26 pm.
216
ibid.
217
Cherry, Mark J: “Kidney for sale by owner: Human organs, transplantation, and the market”, George Town
University Press, 2005.
218
Supra note 214, Chapter 8, at 203.
219
University of South Carolina, Arnold School of Public Health, Dept. of Health Services Policy and
Management, HSPM J712 Updated 2 years ago, 11/21/2013, 1:18:08 AM, available at
:http://hspm.sph.sc.edu/courses/econ/classes/marketssupplyanddemand/sd.html,
214

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to curb the black marketing of the organs in the country. A self-sufficient model to
develop more responsible parties should be adopted by the government in distribution
and the procurement of the organs. A society should be created where public
participation is not only encouraged but also efforts are made to reduce the need for
such materials.220 The focus must be on frameworks and plans which produces
solidarity and community goals through a regulated market system rather than
individual priorities.
DEFINING MARKET IN HUMAN ORGANS
Human body has several biological materials which can be detached in several ways.
They can be removed after death (Post- Mortem detachment) or from a living individual
(in vivo detachment) for various reasons and purposes.

221Procurement

can primarily

be for research purposes or for the use of third party, and in case of secondary
procurement, materials are originally detached from the body part for the good of the
provider, for instance, removal of diseased organs.222. Much of the issues are with the
commodification of the Human Organ. Monetary transactions for the organs becomes
an issue in such cases. Thus, the factors like payment to enhance the organ supply
become a major concern for policy health cares.
Karl Marx, in his celebrated account of exchanges of commodity in capital, focused
largely on human organs that not only has a usage value but also acquires an
exchange value.223 It was his theory of production of use value out of Human Labour,
on working upon nature’s material to create products of usage value for his want. Thus,
these useful products become the market commodities when they acquire an
exchange value.224 Similarly in the Marxists’ Model of market, human organs become
commodities when the money exchanges hands.225 On the contrary, scientists and
health care professionals with the help of whom the organ market is produced can be
regarded as labours and paying these individuals for their labour cost will not amount
to commodification of the organs unless when an exchange value is acquired by

220

Supra note 214, Chapter 8, at. 201.
Supra note 214, Chapter 4, at.84.
222
ibid.
223
Supra note 221, at 7.
224
ibid.
225
Supra note 221, chapter 1, pg.no. 8, 1.2.1, ‘Marx, commodification, and payment for labour’.
221

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organs, and transfer between individuals results either in the excess of profit than cost
of necessary labour or results in its acquisition cost. The exchange-value can be
defined as a concept which dominates the market in commodities, obscuring other
values that may be of immense personal and social importance.226 It thus becomes a
commercial exchange system where the recipients, organizations involved in the
transfer of organs or providers obtain a fungible in their involvement in transfers. Such
profit arises when recipient pays to obtain material at the price which exceeds the cost
of any services related to human organ transplantation or storage or modification, use
etc. However, market in the organs must be competitive, with no momentous barriers
to entry. It must be taken into consideration that payment is made for the organs and
not for the services of the donor, in any manner whatsoever.
COMMON ISSUES WITH MARKET MODELS
Before moving to different market systems that can prevail, there are some common
issues that, market or non-market models must take into consideration. Firstly, on what
basis a common pool of organs will decide patients and whether it will be on a
need/priority basis or monetary compensations must be decided. If it is on the priority
basis, then how and by whom such priority should be decided. Secondly, the level of
education and awareness amongst the citizens should also be taken into consideration
in drafting the policy. In cases like these, proper awareness programmes should be
initiated by the government or various non-government parties which are regulated.
Thirdly, if a patient is financially ineligible for transplantation in his home country or
their services required for the same is not available, this could lead to medical tourism
in other countries.
THE CASE FOR A MARKET MODEL
-

The consequentialist approach-227

Current model for donation relies either on family pressure or upon altruism. Some
people specify in their wills to transplant their organs.228But if those in need of
transplant could pay donors (the Market system), the monetary incentive would call

226

ibid.
Nwabueze Remi, Biotechnology and the property jurisprudence on the Human body and parts, chapter 2.
228
ibid.
227

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forth a greater supply in two fold. Firstly, with proper incentive a large number of donors
can be expected, as donors will have to incur no cost for donation, as it will be borne
by the recipients of the organs.229 This might be a difficult incentive in case of dead
donors, as to secure a good match in considerably less time becomes very difficult
and the transfer from the body should to be done quickly. Secondly, 230 with such
incentives there are chances that supply becomes more than the demand and the
price of the organ reduces to bring poor people also within the ambit to successfully
seek organs from the donors and the market in this case will not be solely led and
influenced by the rich. Of course, it has repercussions too. There can be exploitation
of needy or poor to sell the organs for a lesser price, as the supply is more, which will
bring the entire incentive model to a break down. In cases like these, it thus becomes
important to have a regulated market with a little government interference. In any case
as may be, the membership of the poor and rich categories will also alter overtime.
This model can reduce the scope of black market which provides illegal revenue for
criminals and spawn corruption of officials. It will also provide qualitative services and
products (organs in the present case).On the other hand, the arrangement of a
monopolistic market involved in the sale and purchase of organs with little serious
market competition, will lack incentive to improve the quality and quantity of services
and incentives to keep the costs down and would lead to deficient services.231
-

The Deontologist Approach

According to this model, a person is not only entitled but is also able to take decisions
of his own.232 But in the due process of exercising his own rights, he should not affect
or hinder the liberty of others. A right of one person entails a duty on others to respect
that right or, failing that, to compensate the victim. But, liberties do not entail
corresponding duties on others. If someone has a liberty to do something, he simply
lacks a duty not to do that thing. This entails that others have no right that he not do it
(for then he would have a duty not to do it), which means that he does not need others’

229

Supra note 221, at 9.
Ibid.
231
Erin, C. A., and J. Harris. 1994. "A Monopsonistic Market: or How to Buy and Sell Human Organs, Tissues
and Cells Ethically." In Life and Death Under High Technology Medicine Edited by I. Robinson, 134-52.
Manchester: Manchester University Press.
232
ibid.
230

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permission to do it.233 However, others may still have a liberty to prevent him from
doing it in ways that do not violate his rights234. A person’s right in such case allows
him to donate parts of his body, unless he has a duty not to do so. For example,
donation of blood which may have viruses for AIDS which might cause death to others.
Then how could the donor have a duty not to accept the payment. There can be cases
where there is an agreement expressly and impliedly or that money in the hands of
donor can lead to sever repercussions, either of which is very unlikely to happen as
there can be cases where if no money is exchanging hands, there can be payment in
kind or in more drastic cases for a loan recovery. Thus, there becomes entitlement on
a person not only to donate but also a duty to receive payments for it. In its parallel
argument, it thus becomes the duty of the organ receiver to make payment for the
donation.
REBUTTAL TO THE MARKET APPROACH
-

The Gift Argument

Titmus in his gift argument claimed that a system in which the blood can freely be
donated is superior to a system that uses blood which is purchased.235 Reason being
that an altruistic blood donor on one hand will have no reason to conceal his bad health
whereas in the system of sellers, they may have reasons to conceal their bad health.
Another argument for it can be on religious grounds where they consider human Body
as ‘gift of life’ and where they can decline to donate. However, today there are several
medical tests done both before and after the transplantation to determine the health
of both the donee and the donor. Further, there can be legal repercussions put on the
donor in case the donation is made without disclosing relevant facts. Also, even if the
altruistic donations did reduce, there will definitely be supply of more organs from
donor seeking monetary benefits out of it. Plus the donors always have the option not
to take payments for the donation made.
-

The desperation approach

233

Ibid.
Hohfeld 1919, especially 35–50 and 101–2, though he calls liberties “privileges”)
235
ibid.
234

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Another argument can be the need and desperation of the donor. It is argued that
market based system will leave poor and desperate people in the need of money
vulnerable to other options as they will deem this option best for the easy and fast
money. Many women from poor families/third world countries236 will be forced by their
husbands or in-laws to sell parts of Human bodies in the market for money. This will
even make them vulnerable, in the sense that in cases where they run out of such
easy monies they will have no alternative but either to take loan or force other
members to sell their organs because they will clearly not be in a position to sell one
more. The argument can be rebutted considering the very human nature of always
wanting more than they can actually have. Losing something is always better than
losing in its entirety. Coercion and consent in these cases becomes two opposite sides
of pole. Consent of the donor is very important as it may then lead to his exploitation.
Other issue that can be brought is of weak agency. A person is a weak agent when he
is not fully made aware about the consequences of the transaction. 237 This issue will
have to be dealt with other methods like, creating awareness and informing doctors of
consent where the government can play a vital role. Weak agency issue can arise in
any form of model, as there will be cases where people will not be aware of the
consequences that may arise of their act.
MARKET, MORALS AND ETHICS
It is argued that if money exchanges hand for organs, it can lead to degradation of
practises and certain goods. Thus it can be seen to be essentially degrading and
wrong. This is plainly a strict interpretation of deontological stance. But as we have
seen markets for organs can have better consequences as it will lead to quality of life,
payment to needy and poor, satisfaction of helping someone. Deontologists are rarely
dictatorial. They recognise that there can be certain exceptions in which such principle
can be over-ridden. It is largely driven by the utilitarian approach of greater good for
greater number in the sense that, such model can go overboard when we are entitled
to kill an innocent person in self-defence or kill one person to save the lives of many
others.238That even altruistic transfer of organs has some level of exchange and

236

Sandel 1998, 94; Scheper-Hughes 2003; Satz 2010, 195–97.
Supra note 232.
238
Supra note 236, at 54.
237

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valuation involved. This is when surgeons or hospital staff is paid for the surgery.
Those who object to organ sales do not object to this market exchange and valuation.
Question to be answered is, can money really make a difference, instead it is helping
in encouraging more donations and ones who want to donate altruistically do always
have an option to. If it is not wrong to perform a specific act how can it be morally and
principally wrong to perform that same act for money. If it is held as a moral view, there
will be refusal of sale and purchase of the organ unless it has been given without
payment. But if not an absolutist he may carve life as an exception to override the
principle.
BODILY INTEGRITY – A KANTIAN MODEL
Another argument is made with regard to the bodily integrity. It is a notion with
complexities, incorporating the idea of inviolability and completeness. Dekkers
describe it as recognition of wholeness that may be subjective, normative or biological
or any loss as may be seen as compromising integrity of body.239Predominant aspect
of bodily integrity is not an infinite collection of integrated parts than sacrosanct
physical domain. It is the violation of the boundaries and the procurement procedure
rather than loss of parts. Kant is often quoted objecting the removal of parts of the
body on the ground that it meddle bodily integrity. 240 He outright condemns the sale of
organs. Kant’s concern is not much with the breach of bodily integrity but with the
procurement of parts of body as a moral subject and more importantly the purpose
and mode of procurement.
AUTONOMY ARGUMENT IN THE GARB OF INFORMED CONSENT AND
EXPLOITATION
Bodily autonomy of individuals as rightly carved out by Dworkin, equates respect for a
right to array one’s own bodily parts and organs.241 It is that capacity of a person to
make choices of one’s own body that Dworkin talks about. In his brief argument of
morality of organ sales, he presupposes the legitimacy of sale of Human Organs and
argues “the primary good achieved by such a right is the recognition of the individual

239

Dekkers, W. 2009. "Viewing a Person through the Body: The Relevance of Philosophical Anthropology to
Medical Education." Korean Journal Medical Education 21 (4): 335- 46.
240
Supra note 242.
241
Engelhardt, H. T. 2001. "The Many Faces of Autonomy." Health Care Analysis 9 (3): 283-97.

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as sovereign over his own body…”.242 Bodily autonomy or the sovereignty in one’s
own body forms the basis of all the main arguments for an innate right to sell one’s
own organs.
Archard on the other hand speaks of bodily trespass and provides an analysis on the
self-ownership and autonomy that a person may have on his body. 243 In his defence
of Dworkin, and organ markets more generally, a non-conception of the autonomy is
“the non-Kantian approach… dominant within medical ethics… whereby a person is
autonomous if he governs himself in accordance with his contingent ‘preferences and
desires’”.244 The detachment should be fully informed, free from coercion,
manipulation, not be exploitative and thus not affect the bodily integrity. If it could be
shown that vendors will not act autonomously in alienating their material, the
objections of the market will preclude sales. (in the Non-Kantian Sense). In Kant’s
cultural context, actions of this type tend to promote the notion that poor people have
merely the value of tools available for the right price for others to use as they will: a
notion that clashes with the idea that humanity has dignity. 245 But if an action is of a
type that tends to promote a notion that clashes with the idea that humanity has dignity,
then the action fails to express respect for humanity’s dignity. Therefore, in Kant’s
cultural context, actions of the type in question fail to express respect for humanity’s
dignity and so are wrong.
PROPERTY IN THE BODY
With property comes property rights. The right to use, sell, transfer, make money and
similar principles form part of such rights.246 The bigger question is can Human Organs
be seen as property? If yes, then the rights that come along such organ as a property
will come along it. Locke’s theory of natural rights holds that if the labour is put in
something which is un-owned or unclaimed, one by putting his labour on that property
makes it his own. For many, taking from Locke’s theory ownership over the body can
be justified and legitimate. Lock considers human body as property held in the trust of

242

Supra note 214 at 135.
Supra note 245.
244
Supra note 226.
245
Ibid.
246
George Sarah, “The legal issues in the transplantation of Human Organ, Manupatra.”
243

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god.247 It is natural to suppose that if any part of the body is detached it is still her and
should be disposed of according to her wishes. Locke’s account of bodily sovereignty
may thus inform our examination of the interests that an individual may have in
controlling the disposition of his/her organs.248The absence of a property right in
corpses has not impaired respect for personal interests in deceased bodies. Families
are generally able to dispose of bodies in accordance with cultural beliefs (subject to
sanitary conditions imposed for the benefit of society) and individuals are able to
bequeath their organs science or society for therapeutic use.249 The only element
lacking is the capacity to profit from the sale of the body.
Market system can be justified as having moral duty to save lives. Trades in my opinion
which are mutually lifesaving should be easily permitted. One might add that the
purpose of morality is to enable individuals to interact and collaborate for mutual
benefit. Morality simply cannot be seen to be concerned with only conflict resolution
and negotiations, but promoting human burgeoning. On the other hand legal and
ethical concerns250 arise when there is rampant corruption or violation of the rights of
a person in the form of autonomy or self-realisation of the body. There is large scale
exploitation in organ market. It is assumed that market policies are more likely to
exploit vendors and thus can be termed as immoral. The wrongful utilization and the
usage of an organ, person or situation which can be taken advantage of can be termed
as exploitative. Government should come up with policies to reduce such practises.
Market which seek to avoid exploitation and promote fairness, just and equal
distribution will require regulation particular by ensuring the slabs for prices for each
organ. In an unregulated market the quality and the quantity of the services offered
reduces.
LEGAL SCENARIO
In most of the countries, donors, especially live donors are not permitted to sell or give
organs except in certain conditions. If the removal caused permanent deficiency,
jurisdictions like one in Italy, sale or gift by a live donor will be prohibited. Recently in
247

Supra note 214, at 158.
ibid.
249
ibid.
250
Erin, C. A., and J. Harris. 2003a. “An Ethical Market in Human Organs”. Journal Medical
Ethics 29 (3): 137-138.
248

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1967 amendment, live donors for kidneys were allowed.

251

Surgical operations to

remove organs in France are prohibited, until unless it is for some benefit to the patient.
Human Organs Transplants Act, 1989, in United Kingdom criminalizes any agreement
leading to commercial benefit for organ donation.252 The act is aimed towards anyone
for that matter is involved in the transaction.253 Individual autonomy can be seen as
one of the major justification in allowing such transaction. WHO on realisation254 of
such proliferation developed certain set of principles which provided for consent as the
main aspect in such transaction and in the case of cadavers only when the deceased
did not oppose it during his lifetime.255 In China, principle of consent seems far gone
as organs for donations are taken from prisoners without their consent. Iran is the only
country which has legal market for Human organs. Lack of infrastructure was one of
the major issues faced by the country.256On the positives the number of transplants
after legalisation almost doubled, in addition to the payment by the government to the
donors. Donors in addition to payment from the government received free health
insurances. Medical tourism for the country boomed. This relatively helped the
government as any other model to compare with. 257
-

Indian Legislation – The Transplantation of Human Organs Act, 1994,
(THOA)258

It is a comprehensive legislation regulating the removal, storage, transplantation, of all
kinds

of

organs

and

criminalising

the

commercialization

of

transplants.259Commercialisation is only in the form of monies as mentioned is not
allowed. What happens if the incentive is in kind or any other form but not cash? Prior
to the Act, any illegal offence of this sort, the person was booked under IPC260 for

Jesse Dukeminier Jr., “Supplying Organs for Transplantation”. 68 Michigan Law Review 811(1969-1970).
Provide for Section 1 and 2 of it.
253
Section 1 and 2 of Human Organs Transplants Act, 1989.
254
EMRO. 2010. “WHO welcomes Egyptian organ transplant law.” WHO EMRO Press Release Published
January 20. Available at: http://www.emro.who.int/pressreleases/2010/no2.htm.
255
ibid.
256
“Iranian model of paid and regulated living-unrelated kidney donation”. Ghods AJ, Savaj S Clin J Am Soc
Nephrol. 2006 Nov; 1(6):1136-45.
257
“Kidneys on demand”. Griffin A BMJ. 2007 Mar 10; 334(7592):502-5.
258
The Transplantation of Human Organs Act, 1994, (THOA),No.42 OF 1994. [8th July, 1994].
259
Ibid, Section 2.
260260
Indian Penal Code,1980, Act No. 45 of Year 1860.
251
252

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offences against Human body such as battery261 and assault262 etc. (for criminal
liability) and torts (for civil liability). It lead down procedure to be followed except as
laid down in section 9 of the Act. It disallows any organ to be removed from a living
person unless the donor is near relative to the recipient. It also considers non-genetic
relations like spouse;263 this can heavily be miss-used to end up in fake marriages just
for the purpose of transplantation. This can also be used to exploit woman to lure them
into marriage and on donation divorce them.264 It excludes grandparents in the genetic
connection and thus this transplant is not allowed for.265In case of live donor, he cannot
donate to anyone but only to near relative and transplant must have prior approval of
Authorization Committee. 266It lays down specific policies on informed consent267 and
the duty is casted upon the doctor of the registered clinic to take consent. Major issue
lies with the waiting period of the organ removal from the cadaver.268Many organs
cannot survive the period of 48 hours and thus becomes dysfunctional and cannot be
used. Fortunately, many countries have now laid down laws for distribution and
procurement of organs to make people less susceptible to harm and death.
CONCLUSION
A competitive market in the human organs with subtle regulations by government
would be a great improvement for the market in Human organs than the model which
currently prevails. It would do away with the evils of black market and substantially
increase organs supply in the market. Iranian market model should be looked at and
taken hint from. It is successful in the sense that increases the likelihood of organ
availability. Our county is rich in medical infrastructure but not of much help to poor
and people in need. It would save lives, reduce sufferings and improve quality of life.
In Log run, cost of the transplant can be brought down to achieve market equilibrium.
The vague cogent reason for market opposition in organs and the fact that such
opposition will mean suffering, suppression of freedom, death makes the tenacity and
261

ibid, section 350.
ibid, section 351.
263
Express News Service,”Women Donate Kidneys More Often Than Men”, Indian Express, May 6,1999, at 4.
264
ibid.
265
Times of India, News Service, “Autonomy Bill Passed for Organs, Body Donation”. Times of
India,April,2,1999 at 3.
266
Section 9(2) of Transplantation of Human Organs Act, 1994.
267
Ibid Section 12.
268
Ibid Section 5(1) and (2).
262

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objection of such opposition distressing. A self-sufficient model to develop more
responsible parties should be adopted by the government in distribution and the
procurement of the organ and not only by encouraging participation of public but also
by making efforts to reduce the need for such materials. The focus must be on
frameworks that produce solidarity and community goals rather individual priorities
through market system. The debate will continue until unless stringent actions and
implementation of laws are taken place by state. In the meantime, organ needs will
grow throughout the world to make people more susceptible to treatments.

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PLIGHT OF REFUGEES:
REMISSNESS OF INDIA; NEED FOR A NEW LEGISLATION
TULIP JOSHI AND JUHI BHUTANI
ARMY INSTITUTE OF LAW, MOHALI
ABSTRACT
Injustice is prominent theme in the news, but there is far less attention to how to be
affective in opposing it. How does one respond to the dilemma of dealing with people
who have been displaced under extraordinary circumstances and yet reconcile this
with perceptions of national security?
India has an important role in the treatment of refugees because of its position as a
leader in South Asia, and it houses the largest refugee population in the world. India’s
lack of clear standards for the treatment of refugee groups, however, is resulting in
violations of the international norms for the treatment of refugees. William Gaddis has
said - “Justice? -- You get justice in the next world. In this one you have the
law.” But refugees in India have neither law nor justice. The Indian government hasn’t
signed the refugee convention or its protocol. Under Indian law the term foreigner is
the only reference to aliens of any kind: this places refugees, immigrants and tourists
in the same broad category.
The purpose of the paper is to critically analyse the problems of the refugees and
study of the refugee law of different countries so as to reveal the shortcomings of
Indian legislation regarding refugees and give appropriate suggestions for the same.
INTRODUCTION
“We live on railway station platforms and in open fields. We have nothing to eat. The
world is watching our plight, but no one is doing anything," claimed 44-year-old Fazal,
a Rohingya refugee from Myanmar269. India has kept its borders open to the
refugees but has it opened its heart?

269

Nayna Bose, Refugees in India share daily struggles with UNHCR chief, http://www.unhcr.org /news /latest
/2012/12/50d47f056/refugees-india-share-daily-struggles-unhcr-chief.html (last accessed on 16th August, 2016).

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When we turn our eyes to the world we see a lot of people who seek to escape the
conditions and circumstances that are intolerable to them. Their fight is for freedom,
for safety from oppression, from a threat to life or liberty, from persecution, from
deprivation, from grinding poverty fight, from war or civil strife or from natural disasters.
Article 1 para. 2 of the 1951 Refugee Convention defines ‘REFUGEE’ as “A person
who owing to well-founded fear of being persecuted for reasons of race, religion,
nationality, membership of a particular social group or political opinion, is outside the
country of his nationality and is unable or, owing to such fear, unwilling to avail himself
of the protection of that country.”270
HISTORICAL BACKGROUND
There has not been a single occasion of refugee origin from the Indian soil. There
were trans-boundary migrations which took place during partition in 1947 but since
then India has only been a receiving state to refugees from across the countries.
1. TIBETAN REFUGEES
The Chinese incursion in 1951 led to human rights violations in Tibet because of which
Dalai Lama had to flee his country. The efforts of Dalai Lama to find a peaceful solution
to the ongoing violence went unheeded in the international community. His flight was
followed by exodus of Tibetan people unable to live under Chinese oppression.
Tibetans arrived in India in the late 1950s and early 1960s were accorded refugee
status by the Indian government.
2. SRI LANKAN REFUGEES
Sri Lanka has been embroiled in conflict between the Sri Lankan army and the
Liberation Tiger of Tamil Elam (LTTE) who are fighting for independence for the
minority Tamil population. The conflict has left as many as 70,000 people dead and
one million people displaced.271 The majority of individuals fleeing the Sri Lankan
conflict arrived in India by a boat risking the dangerous journey across the Palk Strait.
Sri Lankan refugees remain largely in Tamil Nadu and live in refugee camps scattered

270

Anantchari, Refugees in India Law enforcement Legal Framework and security, http:/ /www.worldlii.org /int
/journals/ISILYBIHRL/2001/7.html (last accessed on 14th August, 2016).
271
Report on Refugee Population in India, 2007, http://www.hrln.orgadmin/issue/subpdf /Refugee populations_in
_India.pdf (last accessed on 14th August, 2016).

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across the state. They are housed in warehouses or temporary shelters and are even
subject to frequent evening curfews.
3. BHUTANESE REFUGEES
Ethnic Nepalese in 1980s accounted for a quarter of Bhutanese population. The
Bhutanese government was worried that such a large population of Hindu Nepalese
would be a direct threat to Bhutanese ethnic identity. In response to the protest by the
ethnic Nepalese in Bhutan against their illegal deportation and discrimination the
Bhutanese authority ordered closure of local Nepalese schools, clinics, and
development programmes. Thus many Nepalese were evicted and forced to cross the
Indian borders into Assam and West Bengal.

4. HINDU PAKISTANI REFUGEES
The partition in 1947 led to formation of two sovereign states India and Pakistan. There
were from time to time minor clashes between the Hindus and the Muslims .After the
influx of Urdu speaking Muslims arrived in India, communal violence erupted. The
volatile communal relations between the Hindu and Muslim communities in Pakistan
and the growing insecurity among the Hindus because of the rise of the right wing
Islamic groups forced them to leave for India. Roughly 115,000 people displace from
Pakistan have arrived in India since 1965 and have settled in Rajasthan or Gujarat. 272

5. AFGHAN REFUGEES
Due to the widespread human rights violation like extrajudicial killing, torture, violence
against women, restrictions on certain basic rights under the oppressive regime of
Taliban number of people were forced to flee from Afghan and reach India .There are
over 9000 afghan refugees in India and 90 percent of them belong to Hindu or Sikh
faiths.
ROADBLOCKS AND PROBLEMS
“As we watch refugees crowd into camps and pour over the borders, we know
that we are not watching a temporary crisis” –Arundhati Roy

272

Ibid.

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The refugee population in the country of asylum faces a large number of problems.
These problems differ depending upon the extent of development and socio-economic
conditions in the country.
Some of the COMMON OBSTACLES encountered by the refugees are: Refugees are not treated at par with foreign nationals in the country, who are
accorded the most favoured treatment.
 There are bureaucratic delays in granting refugee status, or in granting permits
for self-employment.
 Racial barriers in giving employment have been reported.
 Cultural barriers also prohibit refugees from accepting certain types of wage
earning employment.
 The refugees face difficulty in language and in communication.
 They are forced to accept work for which they are not suited and retard the
development of their careers.
 Xenophobia (dislike of that which is treated to be foreign or strange) and local
hostility are added problems.
 With stringent border controls in place, refugees have to negotiate with
smugglers and have to part with their life savings.

273

Most of the refugee groups face problems arising from LACK OF BASIC
AMENITIES include:  SANITATION-Sanitation in refugee camps is crucial to prevent communicable
diseases and epidemics while ensuring good health and dignity. The refugee
camps do not have adequate waste disposing services or latrines, because of
lack of such basic facilities the people become fragile and more susceptible to
a variety of diseases and illnesses.
 HOUSING-. The refugee population because of their lack of permanent
residence often have to live in slums, squatters, camps which prove to be
273

The Indian Society Of International Law , ISIL year Book of International Humanitarian Law and Refugee
Law , volume 3 , 2003 At 207.

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inadequate shelters for them. The camps are often overcrowded and housing
provided is of very inferior quality .The houses are poorly ventilated ,they have
no chimneys .The presence of dampness is associated with a range of
symptoms and illnesses like pains ,respiratory infections, digestive disorders,
mental disorders, poor health among infants and children.
 GENDER BASED DISCRIMINATION AND VIOLENCE-Women and girls
comprise about half of refugee population. They are discriminated against in
legal assistance, in access to work permits, at health centres, in schools. For
example- The report titled ‘Doke Kha Bon’, which was launched at Burma
Centre Delhi (BCD) office at Vikaspuri of New Delhi on 14 October 2013,
reveals that 4,000 Burmese refugee women, who are taking shelter in the
national capital city, and faces numerous problems. There are 8,306 Burmese
refugees in Delhi as the United Nations High Commissioner for Refugees
(UNHCR) office in New Delhi reports, out of which 3,924 are women. The
refugee women from China have to struggle for basic necessities such as food,
clothing and shelter in the Indian capital city. In addition to this, they battle with
constant fear of sexual assault and physical abuses.274
 VIOLENCE AGAINST CHILDREN-Children constitutes more than half of the
world’s refugee population. They are easy targets in times of war and conflicts
because of their dependency on others and their inability to fully understand
many of the situations they are forced to confront. Since their children are
deprived of education they fall prey to evils like child labour and illegal activities
across the border.275

FOREIGNER’S ACT ANALYSIS
The activities and departure, and stay of foreign nationals are controlled by acts
passed by the Indian Parliament namely the passport (The entry to India act, 1967)

274

Lankaweb Chin, The Plight of Female Chin Refugees in India, http://unpo.org/article/16608 (last accessed on

14th August, 2016).
275

Ibid.

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and the foreigner’s Act, 1946. The former legislation empowers the central government
to make it mandatory to have a valid passport before entering the country. The
Foreigners Act, 1946 came up on 23 November 1946.276 It ascertains the central
government authority regarding arrival the existence and departure of foreigners in
India .The foreigner’s Act was enacted by a colonial government according to the
needs of Second World War. This act is an archaic legislation.
Section 3, the Foreigner’s Act confers upon the Central government the power to make
orders regarding any particular foreigner, a class of foreigners or all foreigners. The
vires of section 3 (2)(c) of the foreigner’s act were challenged in the Supreme Court in
the case of HANDS MILLER V. SUPT. PRESIDENCY JAIL CALCUTTA277 on the
grounds that they offended Article 14278 of the Constitution .The challenge was
repealed in this case .
OTHER HIGHLIGHTS OF FOREIGN ACT ARE
Section 5 – A foreigner cannot assume or use for any purpose any name other than
that by which he ordinarily known.
Section 6-the masters of ships and pilots of aircraft are required to maintain a proper
record of travelling foreigners.
Section 7- The prescribed authority has the power to control places frequented by
foreigners.
Section 14- Contravention of the provision of the act shall be punishable with
imprisonment for a term which may extend to five years and shall also be liable to find
in certain cases.279 Section 14 A and section 14 b and section 14 c have been added

Suraj Kumar Singh, A Critique of Foreigner’s Act 1946, A Legislation De-jure or De facto? http://papers.ssrn
.com/sol3 /papers.cfm? abstract_id=1989060(last accessed on 13th August, 2016).
277
AIR 1995 SC 367.
278
Article14, The Constitution of India, 1950 - The State shall not deny to any person equality before the law or
the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion,
race, caste, sex or place of birth.
279
Section 14 of Foreigner’s Act, 1946 - If any person contravenes the provisions of this Act or of any order made
there under, or any direction given in pursuance of this Act or such order, he shall be punished with imprisonment
for a term which may extend to five years and shall also be liable to fine and if such person has entered into a
bond in pursuance of clause.
276

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to the act after the amendment.280 These sections provide for more stringent
punishments including 1. Penalty for entry in restricted areas
2. Penalty for using forged passport
3. Penalty for abetment.
Refugee Convention of 1951 and its Protocol of 1967 on the status of refugees is the
basis of international obligations to protect refugees. It is the magna carta of Refugee
Law. Some of the important rights set up in the convention include 1. Non-discrimination (article3)
2. Freedom of religion (article 4)
3. Access to court of law on the territory of all state parties to the convention
(article 16)
4. Free movement within territory (article 26)
5. The right not to be expelled from the country unless the refugee poses a threat
to national security or the public order(article 32)281
India’s legal obligation to protect refugees is traced mainly in customary international
law as it has yet not acceded itself to the refugee convention .India is a signatory to
other UN treaties and covenants which contain provisions related to right of refugees
like Universal deceleration of human rights, covenant on civil and political right etc.
However these have not been enacted into the Indian law thereby rendering them nonenforceable in Indian courts.
The courts have taken the view Article 21 of the Constitution of India applies to
foreigners in the case of MR. LOUIS DE RAEDT AND ORS V. UNION OF INDIA AND
OTHERS282. It was stated in the case that the fundamental right of the foreigner is
confined to Article 21 for life and liberty and does not include the right to reside and
settle in this country, as mentioned in Article 19(1) (c) which is applicable only to the
citizens of this country. The power of the Government in India to expel foreigners is

280

Amendment Act, 2004.
Suraj Kumar, A Critique of foreigner’s Act 1946: legislation de jure or de facto, http://papers.ssrn.com /sol3
/papers.cfm? abstract_id=1989060 (last accessed on 13th August, 2016).
282
(1991) 3 SCC 554.
281

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absolute and unlimited and there is no provision in the Constitution fettering this
discretion.
In the celebrated case of VISHAKA VS. STATE OF RAJASTHAN283, the Supreme
Court has held that “In the absence of domestic law occupying the field, the contents
of international conventions and norms are significant for the purpose of interpretation
of the guarantee of gender equality, right to work with human dignity. Any international
convention not inconsistent with the fundamental rights and in harmony with its spirit
must be read into these provisions to enlarge the meaning and content thereof, to
promote the object of the constitutional guarantee. This is implicit from Article 51 of
Constitution.”284
In the case of VINCENT FERRER VS. DISTRICT REVENUE OFFICER285, Anantapur
Chinnappa Reddy, J. has held that a foreign national, though entitled to equality before
the law and the equal protection of the laws guaranteed by Article 14 of the
Constitution, is not entitled to the protection of the fundamental rights guaranteed by
Article 19.286

In the case of NATIONAL HUMAN RIGHTS COMMISSION VS. STATE OF
ARUNACHALPRADESH287 , the Supreme Court has held that our country is
governed by the rule of law and the State is bound to protect the life and liberty of
every human being, whether he is a citizen or otherwise. The Court further held that
the State cannot permit anybody or group of persons to threaten the Chakma refugees
to leave the State, and if it fails to do so, it will fail to perform its constitutional as well
as statutory obligations.

DRAWBACKS
The refugees have no option as they cannot go back “home” which is a war torn land
of endless woes and no security, they are braving the claustrophobia of being packed
like sardines in a tin.

283

(1997) 6 SCC 244.
See article 51, The Constitution of India, 1950.
285
AIR 1974 AP 313.
286
See article 19, The Constitution of India, 1950.
287
(1996)1 SCC 742.
284

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India’s reason for not signing the Refugee Convention is the fear of indefinite legal
responsibility for the vast numbers of persons seeking shelter. The Indian government
does not believe that it successfully can handle the requirements of the Refugee
Convention, and such new pressures would damage the country’s economic and
social balance. In addition, the Indian government argues its current refugee policy is
in line with international norms.
India cited national security as one reason for not introducing national refugee
legislation. It has argued that legislation on refugee determination in line with
standards established by the 1951 convention and the 1967 protocol would limit their
ability to effectively address national security concerns.
Once a state has granted asylum to a refugee, it has only two choices as to how to
meet its needs for subsistence. It can provide refugee either public assistance or the
right to work. This means an increase in state’s expenditure, which is the main reason
why some of the states especially like India have not signed the 1951 Refugee
Convention nor accepted the 1967 Protocol.
The United Nations Human Rights Commission of Refugees (UNHCR) and
Government of India share a paradoxical relationship. India has been a member of
The Executive Committee (ExCom) of the UNHCR since 1995, without being a party
to the 1951 Convention. The UNHCR office is situated in New Delhi and is not
permitted to operate in other parts of India, except Tamil Nadu where it provides Sri
Lankan Tamil refugees limited repatriation assistance. As a result, refugees located in
remote parts of India fail to access the assistance of UNHCR.
FOR EXAMPLE:-Burmese refugees living in Mizoram live as illegal immigrants as
they do not have adequate resources to go to Delhi to seek UNHCR protection . 288
CONCLUSION
There has become a lacuna, concerning legal status of refugees in India and the
Constitution lacks provisions for refugees and they are considered as illegal

Ishpita Senugupta, UNHCR’s Role of protection of refugees in India , http://infochangeindia.org/agenda/
migration a-displacement/unhcrs-role-in-refugee-protection-in-india.html (last accessed on 15th August, 2016).
288

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immigrants according to the laws. Due to this, the refugees continue to be subject to
arbitrary arrest and harassment.
The foreigners Act has failed to differentiate between ‘refugees’ and various ‘other
categories of foreigners’. There are considerable misgivings in the minds people in
India about the refugees. There are at least three well-defined groups of foreigners
who are different from ‘refugees’. It is important that the distinction among them is
clearly understood. These categories are:
A. TEMPORARY RESIDENTS, TOURISTS AND TRAVELLERS
These are the persons who come to India with the prior permission of the Indian
Government for a specific purpose and duration. However, in certain circumstances
anyone in this category could become eligible for being a refugee, if, during their
sojourn in India; the situation in their country of origin becomes such as to endanger
their lives and liberty if they were to return to their country.
FOR EXAMPLE Many Iranians who had come to India for studies during the regime
of the Shah of Iran, have stayed back in India as refugees after the fall of Shah of Iran.
No one can automatically claim the right for ‘refugee status’ under this category. It is
the prerogative of the Indian government to satisfy themselves and decide each case
according to merits and circumstances.289
B. ILLEGAL ECONOMIC MIGRANTS
It includes any foreigner who might have left his or her country of origin without due
authorisation, both in the country of origin as well as the country of destination, with
the sole purpose of improving his or her economic prospects.
EXAMPLE -Illegal migrants from Bangladesh. They have to be treated as illegal and
unauthorised entrants into the country and dealt with under besides the IPC, Cr.PC
etc.
C. CRIMINALS, SPIES, INFILTRATORS, MILITANTS ETC

289

Ibid at 273.

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None of these can ever become eligible to be refugees. They have to be dealt with
under the provisions of the Indian criminal laws as well as any other special laws in
force even though some of them may be in possession of valid travel documents.290
D. INTERNALLY DISPLACED PERSONS (IDP)
These persons are fleeing persecution and human rights violations from one region of
the country and have sought refuge in another region of the same country. They have
the protection of their national government. Example- Kashmiris who have been
forced to flee from Jammu and Kashmir have settled in other parts of India.
Therefore, In India, considering its large influx of foreigners, there is a clear need for
distinction between refugees and these other categories. India lacks a specific
municipal law incorporating and protecting the rights of refugees, thus it is left to the
courts to read the provisions of the international human rights instruments into the
provisions of Articles 14, 21 and 25 of the Constitution. When it is left on the Judges
to read a law, it depends completely on the outlook of a particular judge to decide the
issue before him. There cannot be any certainty or uniformity in judicial activism. The
need of the hour is a legal framework that provides for the protection, rehabilitation
and repatriation of refugees which the present Act i.e., The Foreigners Act is unable
to provide.
All foreigners, whether refugees or illegal migrants, are dealt with under the provisions
of the Foreigners Act 1946, which gives unfettered powers to the government to expel
them. On one hand, it is extremely important to expel the illegal migrants by using the
machinery of the Foreigners Act, yet on the other hand, the absolute power of
expulsion and deportation to the country of origin could prove disastrous in the case
of a refugee who faces a threat to his life and liberty in his original country.
India needs to provide for an appropriate legal framework which incorporate its various
treaty obligations .The Foreigners Act has undoubtedly failed to do this since it lacks
a substantial law on refugees.
THE

FOLLOWING

ARE

SOME

SUGGESSTIONS

FOR

UPLIFTING

REFUGEES AND SAFEGUARDING THEIR RIGHTS-

290

Ibid at 273.

154

THE

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As PRINCE EL HASAN BIN TALAL observed in 1993 “a human rights basis for
refugee law will not only invigorate a stagnant law but would also stimulate the
essentially humanitarian tendencies of nations and jurists reminding them that behind
the faceless words “refugee”, “returnee”, “economic migrant” lie the faces of a starving
child, a desperate mother or a sick old man.”.
Where an application is made for the determination of status of a refugee, he should
not, pending such determination, be deported nor any restrictions be imposed except
those that are necessary in the interests of sovereignty and integrity of India or
maintenance of public peace and order. It is important that during the determination of
his refugee status, he be entitled to the assistance of an interpreter and legal
practitioner.
A NATIONAL MODEL REFUGEE LAW for granting statutory protection to refugees
has long been considered in India but is yet to be implemented. It aims to harmonise
norms and standards on refugee law, establish a procedure for granting refugee status
and guarantee them their rights. The preamble of this Act acknowledges India’s long
tradition and experience in accommodating refugees and demonstrating its faith in the
principle of Non –Refoulement. The Act seeks to reaffirm the initiative taken by the
Indian Parliament under article 37 and 253 of the constitution to provide all with an
administrative system that is free from arbitrariness and guarantee equality, fairness
and due process of law.

Article 3 provides for the definition of the refugees

Article 5- gives the principle of non- refoulement

Article 9 –gives the procedure for determination of refugee status

Article 13(a) – gives refugees certain rights so long as he or she remains within
India (8 rights) Article 13(b) states that every refugee is bound by the law of
India.

Reaffirming the initiatives taken by Parliament under Article 37 and 253 of the
Constitution of India to provide an administrative system free from arbitrariness
and guarantee equality, fairness and due process of law; 291

291

Ibid at 22.

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This proposed model refugee law should be implemented so that, the granting of
refugee status becomes a peaceful and humanitarian act and does not imply any
judgement on the country of origin of the refugee. Only then can we give the refugees
adequate just and humane conditions to live a life of security in the country which they
flee to.

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SOVEREIGNTY OF NATIONS UNDER THE THREAT OF DRONE
STRIKES
VEENA RAGHAV
NALSAR UNIVERSITY OF LAW, HYDERABAD

ABSTRACT
The Drone strikes are one of the controversial concerns that has caused tension
between US and nations under the name of war against terrorism. The incessant
discretionary usage of Drones in Middle Eastern and African Countries to kill targets
although has been internationally condemned, by the number of casualties it resulted
in. The author demonstrates how sovereignty of nations is under threat when attacked
by Drones. It argues how the meaning and scope of consent might vary from situations
of target killing to covert missions. To explicate the above argument the author also
reflects on the status of terrorists as subjects under United Nations and how the United
States of America has repeatedly violated the Sovereignty of nations under the garb
of the proviso of Self- Defence as given under Article 51 of UN Charter. The article
reckons the importance of Article 2(7) of the UN Charter and ponders upon the
significance of Sovereignty in a global war against Terrorism.
INTRODUCTION
“The burden of proof is now on the innocent. Unfortunately, the dead have
a hard time defending themselves.”292
The rudimentary purpose of United Nations was to achieve global peace and security
against the tensions seen in World Wars. Few of the most horrendous events that took
place made the leaders think beyond territorial disputes, and relevant to our
discussion, about the effacement of humanity. The era of war fought in nuance of
nationalism faded with the inception of transnational terrorist groups proclaiming global
war. The conundrum in fighting against terrorism involved factors that were entwined
and inevitable; resulting to civilian harm and breach of sovereignty of States. The War

292

Faisal Kutty, Book Review: Drone Warfare Killing by Remote Control by Medea Benjamin (London: Verso,
2012), JOURNAL OF INTERNATIONAL LAW AND INTERNATIONAL RELATIONS, Vol. 11, No. 1, 2015, p. 98.

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technology, on other hand, was reprimanded by numerous human rights’ proponents,
who condemned usage of parlous technology as it lacked human instinct leading to
brutal consequences. Overtime, advanced means of decimation shifted the attention
from the conventional form of conflicts, nation centric in nature, to more individual
centric where the citizens were deprived of their basic freedoms and rights. The advent
of technology equipped the nations with immense power and an egregious weapon of
surveillance that changed the dynamics of war.
The paper specifically inquiries into drone technology deployed by US that has caused
immensurable destruction to human life and property under the guise of “war against
terrorism”, mainly as a response to 9/11. The paper discusses the conflict of Drone
attacks with Article 2(7) of the UN Charter. The legitimacy of these attacks, through
furtive mechanism, that have caused death of civilians neither confirming as the target
list nor qualify as terrorists. In this paper we also discuss the inconsistencies found in
application of exception of ‘self- defence’ (Article 51) by US. We would also review the
articulation of Drone attacks on factions and suspects in consonance with Article 2(4).
In the end the paper also demonstrates how resolution passed by Security Council,
binding in nature, vitiates the purpose of resolution made by other UN organs depicting
crippled situation of global community.
HISTORY OF DRONE ATTACKS
The usage of drone technology can be dated back to 1849 when Austrians released
pilotless balloons on the city of Venice. It marked as the beginning of less cumbersome
war technique which involved negligible loss of men at war front.293 As we traverse
through the history of drones, they can be classified on the basis of their utility. In the
period of wars their usage was prominently for attacking the adverse military forces.
The Cold War saw a change where it was utilised for intelligence purpose. The advent
of terrorism altered the purpose to conduct surveillance and target killing which later
was adopted for policing purpose under domestic law. 294
Drones also known as Unmanned Aerial Vehicles or Remote Piloted Aerial Systems
are highly advanced hovering objects that were used as alternatives to manned
293

Ian G. R. Shaw, The Rise of the Predator Empire: Tracing the History of U.S. Drones, UNDERSTANDING
EMPIRE, available at: https://understandingempire.wordpress.com/2-0-a-brief-history-of-u-s-drones/ (Last
Seen on March 28th, 2016).
294
Id.

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vehicles in terrains and situations inaccessible for humans. They are equipped with
cameras providing real-time image of activities carried out in deployed region.295 The
escalating expenditure by the US government between 2002- 2010 period on drone
technology reflected a much skewed opinion on drone attacks from what they
previously advocated for. The Bush Administration in pursuance of the IntermediateRange Nuclear Forces Treaty denounced Israel’s drone attack branding it as an
extrajudicial killing.296 Later, Obama avowed to end the war in Afghanistan but
maintained his silence on the issue of war on terror, turning a blind eye on the issue
of drones.297 The tension regarding drone strike became contentious as they were
executed as covert missions by US without proper consultation with the refuge
State.298 The next wave after Yemen, in 2002, hit Pakistan in 2004 where CIA was
granted with authority to conduct drone strikes but only on the listed targets. The
control of US on this region eventually increased beyond the negotiated terms
extending to conducting surveillance on every subject under suspects.299 Obama
Administration, in 2012 again saw much widespread deployment of drones in
Pakistan, Somalia and Yemen (Annexure 1).300
The account on one hand appeared legit, but the reality involving civilian casualties
raised a concern at the International juncture on issues like sovereignty, human rights
of the civilians and observing jus ad bellum. The Bureau of Investigative Journalism’s
Drone War program in their report highlighted that thousands of innocent civilians were
been killed in drone incidents since 2002. Where in Pakistan, around 423 strikes killed
423- 965 civilians, 172- 2007 children and left thousand and above injured. Similar
trends were seen in Yemen, Afghanistan and Somalia (Annexure 2) and as a global
shock, around 156- 365 were reported dead in covert missions that took place in
Yemen. US Government albeit defended the drone warfare as the most humane mode

295

Drones: What are they and how do they work?, BBC, available at: http://www.bbc.com/news/world-southasia-10713898 (Last seen on March 28th, 2016).
296
Shaw, Supra n. 2.
297
Ryan J.Vogel, Ending the "Drone War" or Expanding It?, ALBANY GOVERNMENT LAW REVIEW, Vol. 8,
2015, p. 282.
298
Adam Entous, Obama Kept Looser Rules for Drones in Pakistan, THE WALL STREET JOURNAL, April 26,
2015, available at: http://www.wsj.com/articles/obama-kept-looser-rules-for-drones-in-pakistan-1430092626
(Last seen on March 28th, 2016).
299
The CIA is alleged to lobby with Bush Administration to ease the legal constraints binding signature strikes
which were directed against Pakistan and Afghanistan people at large; Vogel, Supra n. 6.
300
Leila Nadya Sadat, America’s Drone War, CASE WESTERN RESERVE JOURNAL OF INTERNATIONAL LAW, Vol.
45, 2012, p. 219.

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in war against terrorism.301 Sadat in her work specifies how US has been lawyering
the targeted killing proves to be disoriented, showing to be supported by wary public
demand and surreptitious implementation.302 Political figures from US, Attorney Eric
Holder, Legal Advisor Harold Koh and John O. Brennan from Homeland Security and
Counterterrorism have repetitively asserted US drone war against transnational
factions, AL-Qaeda and Taliban, all this time. The rationale of US behind the attacks
was mere arrogating themselves the authority emerging from the conflict between the
terrorist groups and them after 9/11 reflecting patronizing behaviour of US equipped
with vast facilities producing drones now and then.303 Some of the common questions
around which every scholar premised their study were related to justification of US
government’s use of force, the targets and the process to determine them including
surveillance and attacking and whether drone strikes were lawful under International
Law.
On the above mentioned questions many scholars have legally rectified the locus of
non-state actors under UN Charter and the corresponding use of force in self- defence
by the State on the non- state actors. Resolution 1383 of 2001304 and 1566 of 2004305
were some strategic steps taken by Security Council that formalized the use of force
by US as self- defence. UN Charter recognises armed conflict between States under
Article 2(4) and the same applies for the exception given under Article 51. The paper
discusses this interlink between non- state actor and Article 2(4) of UN Charter in the
next segment.
On a detailed study of these resolutions, it reveals that Pakistan was on the list of nonpermanent member while Resolution 1566 was passed with all 15 votes of UNSC in
favour of it.306 This vote in favour of the Resolution at international level whether
concedes the valid right to trespass the territory of other state was left for further
debates, at least for the covert missions which became rampant after 2004 and
301

Kutty, Supra n. 292, p. 94.
Sadat, Supra n. 300, p. 222.
303
Id., pp. 221- 228.
304
Res. 1383: UN Security Council Resolution 1383, Afghanistan, COUNCIL ON FOREIGN RELATIONS, Dec 6,
2001, available at: http://www.cfr.org/afghanistan/un-security-council-resolution-1383-afghanistan/p20039
(Last seen on March 26th, 2016).
305
Res. 1566: Security Council acts unanimously to adopt resolution strongly condemning terrorism as one of
most serious threats to peace, UNITED NATIONS, Oct 8, 2004, available at:
http://www.un.org/press/en/2004/sc8214.doc.htm (Last seen on March 26th, 2016).
306
Id.
302

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peaked in 2010.307 The rage of other countries followed because it was not the errant
strikes by CIA but also the consequences which brought predicament not only to the
security of the citizens but their credulity on their own Governments.308
In all this, the drone strikes were endured as justified disregarding their nature. The
presence of CIA highly eclipsed the collective State responsibility under UN Charter.
It constituted one of the factors behind the condemnation of self-delegated power of
US especially the leeway given to CIA in fighting war against terrorism.309 The next
segment in substance and brief demonstrates how non- state actors come under the
ambit of UN Charter and the self- defence of US against the these terrorist groups is
justified but instils controversies when it comes to Drone attack and civilians.
DRONE ATTACKS FULFIL ARTICLE 2(4), TILL WHAT EXTENT?
Article 2(4) of UN Charter constitutes one of the central tenets i.e. the prohibition of
use of force that primarily binds only the State members ousting the non- state actor
from status of UN member or as an international law subject.310 However, the scholars
have postulated that under the objective of maintenance of peace and security and
the just war theory, private violence violates the International norms that recognises
authorised use of force only.311 This extension in applicability of UN principles on nonstate actors was feasible for States to take collective action. In this sense, the
customary international law too, which confines all the international actors, perceive
the consequences of actions of the terrorist groups as breach of the international law
except discarding the notion of ‘legal personality bearing rights’.312 ICJ in Reparations

307

Scott Shane, Drone Strikes Reveal Uncomfortable Truth, THE NEW YORK TIMES, April 23, 2015, available
at: http://www.nytimes.com/2015/04/24/world/asia/drone-strikes-reveal-uncomfortable-truth-us-is-oftenunsure-about-who-will-die.html (Last seen on March 26th, 2016).
308
Sadat, Supra n. 300, p. 227.
309
Id.
310
Muge Kinacioglu, The Principle of Non- Intervention at United Nations: The Charter Framework and the
Legal Debate, PERCEPTION, 2005, available at: http://sam.gov.tr/wp-content/uploads/2012/01/MugeKinacioglu.pdf, p. 16.
311
Nicholas Tsagourias, Non-state actors and the use of force, June 1, 2011, J. d'Aspremont, (ed.),
PARTICIPANTS IN THE INTERNATIONAL LEGAL SYSTEM: MULTIPLE PERSPECTIVES ON NON-STATE ACTORS IN
INTERNATIONAL LAW, Routledge, 2011, available at: http://ssrn.com/abstract=1856566, p. 2.
312
R. Wedgwood, Legal personality and the role of non-governmental organisations and non-state political
entities in the United Nations system, R. Hofmann (ed.), NON- STATE ACTORS AS NEW SUBJECTS OF
INTERNATIONAL LAW, Berlin: Duncker & Humblot, 1999 p. 26

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Case had specified that identical treatment is not mandatory for all the subjects like
unrecognised States in international law.313
Now on other hand States have been authorised by the UN Charter to deviate from
Article 2(4) under circumstances that fall under Article 51 i.e. self- defence. The inquiry
into notion of Article 51 clarifies that self- defence can be asserted only when attacked
State violates the sovereignty of other in response. So the next question in this
formulation is whether 51, in case of terrorist groups, require attribution to any State.314
It becomes important for our discussion as it comes in direct conflict of the principle
under Article 2(7) of UN Charter, protecting the other State, eventually suffering the
quandaries of the conflict. Moreover, in case of attributing 9/11 to Afghanistan it is
observed through decisions given in Genocide and Nicaragua case315 and in the
Articles of State Responsibility that such interpretation renders either the host country
to have complete or effective control on the terrorist groups. 316 Courts, to
accommodate terrorist attacks within the proviso of the Article 2(7), the principle of
attribution, loosely interpret it under the label of lex specialis which has been
internationally accepted.317 It has been elucidated that there is nothing in Article 51
which restricts the self-defence only inside the territory of affected State. US in
Caroline case contended that such use of force for self-defence is governed by
principles like necessity or being the last resort. Over years, the limits on self- defence
have become malleable.318 Departing from temporal, quantitative and sovereignty
based criteria the burden of proof has been shifted on the host country to show that
they do not indulge with the non- state actors, where they either exercised duediligence while preventing their territory being used by the terrorist groups or failed to
prevent such attacks.319 The two alternative interpretations as mentioned above are
considered to be secondary rules determining the principles of attribution but lacks
finality on which one to prevail. It was again accounted in the Lebanese war where
313

Reparations for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Rep.
(1949), 174,p. 178
314
Jordan J. Paust, Self-Defense Targetings of Non-State actors and Permissibility of U.S. use of drones in
Pakistan, JOURNAL OF TRANSNATIONAL LAW & POLICY, Vol. 19, 2010, pp. 238- 240.
315
Id., p. 245.
316
Marko Milanovic, Self- Defence and Non- State Actors: Indeterminacy and Jus ad Bellum, EUROPEAN
JOURNAL OF INTERNATIONAL LAW BLOG, Feb 21, 2010, available at: http://www.ejiltalk.org/self-defense-andnon-state-actors-indeterminacy-and-the-jus-ad-bellum/ (Last seen on March 26th, 2016).
317
Id.
318
Id.
319
Id.

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Israel attacked the Hezbollah under the aegis of Article 2(4) and 51, but Israel’s
capacity in respect of the two alternatives stood undetermined in using force against
the non-state actors.320 From the above construction of how non- state actors are
brought under ambit of UN Charter, it is interesting to find that primary rules are free
from inconsistencies when the matter of concern is tilted to secondary rules that are
subjective due to the political whims that can cause flipping of the situation.
The other issues regarding the Human rights of these actors and arbitrariness of the
attacks have been justified on the grounds that former is not relevant as they do not
recognise themselves to any State. Issue of arbitrariness of target killing by drones
has been kept back under permissible self- defence.321 But a closure has been
established on the basis of Article 6 of ICCPR regulated by the threshold under Article
51 of UN Charter. Necessity and Proportionality that constitutes this threshold in
Geneva Conventions, Protocol I directs the State action that there should be distinction
between civilians and targets and it also forbids indiscriminate attacks under just war
theory.322 Deduction from this distinction drawn demonstrates that targets can be
classified as active members of terrorist groups and civilians who can provide with aid
and material. The locus of such civilians raises controversy that whether they can be
incriminated at equal footing with the terrorist. In such scenario it is the domestic law
of host country that should be applicable on such civilians rather being exterminated
by State under attack that does not have any implicit authority beyond the listed
targets.323 It is interesting to note that terrorist groups like Al Qaeda and Taliban do
not explicitly come under the scope of Article 43 of Protocol I of Geneva Conventions
defining combatants. Whereas, Article 50 (1) of Protocol I read with Article 4(A) of
Third Geneva Convention consider people accompanying these terrorists in the
vessels and aircraft as civilians.324 US used term as ‘unlawful combatant’ validating
the decision of Ex parte Quirin applying it to the terrorist groups like Al Qaeda.325 The
problem related to such distinction of unlawful combatants is that to initiate any attack
against such actors one has to ascertain their direct participation in hostilities, for other
320

Id.
Paust, Supra n. 314, pp. 262- 272.
322
Id.
323
Susan Breau and Marie Aronsson, Drone Attacks, International Law, and the recording of civilian casualties
of armed conflict, SUFFOLK TRANSNATIONAL LAW REVIEW, Vol. 35, 2012, pp. 277- 280.
324
Id.
325
Ex parte Quirin, 317 U.S. 1 (1942).
321

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times they are counted as the civilians. In this context sovereignty of nation becomes
utmost important for us because in drone attacks that are alleged to cause casualties
rather than elimination of terrorism, one has to draw line when it is an armed attack
and matter of law enforcement.326
LOSING PREVALENCE: SOVEREIGNTY VERSUS SELF- DEFENCE IN
CONTEXT OF DRONE ATTACKS
Article 2(7) is one of the most crucial principles of UN Charter which ensures that
sovereignty of any State paramount in International Law and UN does not possess
any right to interfere with the domestic affairs.327 However, Article 2(7) is observed to
be distinct as compared to its predecessor Article 15(8) of Covenant of League of
Nations under which the Security Council had the power to decide that whether a
dispute was solely a domestic matter. Its absence from Article 2(7) can be seen two
ways, one, as to remove the power to give verdict vested in Council respecting the
independence of other States and second, given as a freedom to States to determine
what falls under their jurisdiction further leaving it vague. 328 The provision of
sovereignty is a combination of law and politics which involves the dynamics between
domestic interests versus the International ones. This provision, under the assumption
that International Law is basically a negotiated agreement between nations; consent
of a nation is valued very high. According to J.S. Watson any kind of deviation from
the International law is considered to be exercise of sovereignty. 329
It is observed that consent of State is an innate feature of International Law that
Schwarzenberger defines it as coterminous with existence of UN, one reason behind
the failure of League of Nations.330 On the debate between Lauterpacht and Watson,
where former supports a purposive interpretation stating Article 2(7) is kept neutral so
that organs have the power to decide on the issue of sovereignty and latter supports
textual interpretation, International Law tries to strike a balance by providing
competence between UN as a collective entity and State as individual. Lauterpacht’s
teleological explanation superimposes the importance of International peace and
326

Breau, Supra n. 323,p. 297.
Kinacioglu, Supra n. 304,p. 22.
328
Q.M. Maarij-Uddin, An interpretative Ananlysis of Art. 2.7 of the UN Charter, available at:
http://www.manupatra.co.in/newsline/articles/Upload/850B2EB8-B507-4C51-990B-05438E96DBE5.pdf, pp.
75- 77.
329
Id.
330
Id.
327

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security over integrity of nation.331 However, plain reading of Article 2(7) signifies that
sovereignty of State is the foundation and the proviso referring Chapter VII emanates
from this foundation.332 On the contrary, scholars like Rosalyn Higgins and Oscar
Schachter defends the flexible approach considering the mutability and vagueness in
the principle which should be utilised to accommodate gamut of situations.333
On the basis of the teleological interpretation can International community agree with
the covert mission killing civilians? Whether US have the consent for covert mission
conducted against suspects that come under the category of citizens? What is the role
of refuge nation against the citizens at International Front? Whether sovereignty can
be overshadowed by collective responsibility which is manoeuvred by one super
power? Can the lethal nature of drones conducting surveillance intermittently and
without knowledge of the citizen be considered under the consent given by Pakistan?
After the public loss Pakistan due to gross use of drone strikes, it had raised contention
against US interference. Pakistan looking into the consequences of drone surveillance
completely denounced their presence in their sovereign territory which was turning
into foreign onlookers regulating lives of people.334 Pakistan Ambassadors, from 2013,
at different instances called forth for cessation of drone strikes. While being a member
of Security Council they made deliberate attempts to invoke the question of legitimacy
of the strikes and surveillance.335 US on the other hand construed Pakistan’s initial
consent in 2004 and lack of countering the plans adapted as tacit consent.336 However,
the covert missions with element of secrecy and drone attack on suspected civilians
possess inherent predilection within the tacit consent. The worst scenario to
understand is when US seeks Geneva Conventions to forego the death of civilians
which is permissible to an extent in armed attack. The whole purpose of using high
precision drones in such situation is contestable as the technology is meant to kill

331

Martti Koskenniemi, Lauterpacht: The Victorian Tradition in International Law, EUROPEAN JOURNAL OF
INTERNATIONAL LAW, Vol. 8, no.2, 1997, pp. 217- 218.
332
Discretion and Legitimacy in International Regulation, HARVARD LAW REVIEW, Vol. 107, no. 5, 1994, pp.
1099–1116.
333
Uddin, Supra n. 338, p. 77.
334
Pakistan, at UN Security Council, Demands an End to Drone Strikes, LAROUCHE PAC, Sep 21, 2013,
available at: http://archive.larouchepac.com/node/28229 (Last seen on March 26th, 2016).
335
Id.
336
Sean D. Murphy, The international Legality of US Military Cross- Border Operations from Afghanistan into
Pakistan, Micheal N. Scmitt (ed.), THE WAR IN AFGHANISTAN: LEGAL ANALYSIS, 2009, pp. 116, 130.

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specific targets after thorough surveillance.337 Where Drones provide hours of video
capturing the activities of any person, the number of casualties show altogether a
different picture. Also suspected civilians should be subjected to law enforcement
(supra), is a State issue and International Law cannot interfere. This distinguishes
armed conflict and law enforcement where conflict should render collateral damage
whereas isolating civilians (assumed the drone will try to achieve) do not render
collateral damage.338
The General Assembly, a 193 nation’s body, passed a resolution in the year 2013 Protection of human rights and fundamental freedoms while countering terrorismwhich again validated the use of drone exercises.339 To check their accountability
special mechanism and procedures under International human rights law were
introduced to pacify Pakistan.340 UN bodies like UNHRC adopted Resolution on Drone
Transparency and Accountability to investigate when the pilotless aircrafts or armed
drones violated the norms.341 These resolutions that sound promising nowhere made
an attempt to stop the attacks at first instance. They allow the surveillance against the
will of people. Since it is the State which represents the conscience of people, it
becomes a question of sovereignty not ascertained by the government but the people
of the nation. Repetitive attempts in the year 2014 were made by Pakistan to end the
drone usage stating them to be against their territorial integrity. Many other nations
like Syria and Somalia were also added to the list of potential States that came under
drone surveillance and strikes and along with US other nations like UK also joined the
drone programme.342

337

Shane, Supra n. 302.
Breau, Supra n. 304, p. 258.
339
68/187. Technical assistance for implementing the international conventions and protocols related to
counter-terrorism, GENERAL ASSEMBLY, 11 February 2014 , available at:
http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/68/187 (Last seen on March 26th, 2016).
340
UN passes resolution on Drone strikes after pressure from Pakistan, TRIBUNE, Dec 19, 2013, available at:
http://tribune.com.pk/story/647672/un-passes-resolution-against-drone-strikes-unanimously/ (Last seen on
March 26th, 2016).
338

50

Ryan Goodman, United Nations human rights council adopts resolution calling for drone transparency and
accountability, Just Security, March 28, 2014, available at: https://www.justsecurity.org/8712/unhrc-adoptsdrones-resolution/ (last seen on March 26th, 2016).
342
Ambassador gives ‘Iraq defence’ for UK’s Syria drone Strike, BBC, Sept 11, 2015, available at:
http://www.bbc.com/news/uk-34215799 (Last seen on March 26th, 2016).

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As a response to eliminate terrorism, Security Council issued Resolution 2178 in late
2014 re-affirming the usage of drones and technology which hampered the basic
freedom of citizens to a great extent.343 It is contemplated that Resolution 2178 allows
for an authorised encroachment by the government which raises a concern for human
rights of citizens in their own nation. The Resolution re-instated the status quo and
also was binding on nations unlike other Resolutions of International Law that are
implemented as a soft law.344 However, this paper deals only with the drone attack
and therefore the researcher would not inquire into the next stage under which the
drones are used for digital massive surveillance. The Drone strikes are highly
censured accusing US act being beyond necessary. Some scholars who defend the
drone strikes agree that democracy is based on sovereign built on its citizens’ consent
that legitimises the government rule and decision. They strongly believe that Nations
have greater responsibility towards International Law and their cooperation is
presumed not due to consent but many a times through customary laws and opinion
juris.345 However, in situations where human rights of innocent people are at stake,
State has the first duty to take the responsibility.
CONCLUSION
The sovereignty of State not only as a principle under UN Charter but also is the crux
of the institutional framework of International Organisation. It was also recognised as
Lotus Principle where restriction on the sovereignty of states not to be presumed.346
Drone-attacks interfering foreign territory and causing murders make US no less than
a criminal. Covert drone mission that can be called clandestine and sporadic attacks
of US in Pakistan demonstrate how freedom of citizens is regulated from other
continent which is against the objective and purpose of instating United Nations. It
alarms us against use of technology and biological warfare methods have debilitating
affect which should be condemned. The case of Drone-attack reiterates the necessity

343

Res. 2178, 2014, SECURITY COUNCIL, available at:
http://www.un.org/en/sc/ctc/docs/2015/SCR%202178_2014_EN.pdf (Last seen on March 26th, 2016).
344
Martin Scheinin, A Comment on Security Council Res 2178 (Foreign Terrorist Fighters) as a “Form” of
Global Governance, JUST SECURITY, Oct 6th, 2014, available at: https://www.justsecurity.org/15989/commentsecurity-council-res-2178-foreign-fighters-form-global-governance/ (Last seen on March 26th, 2016).
345
Michael Chertoff, The Responsibility to Contain: Protecting Sovereignty Under International Law, FOREIGN
AFFAIRS, Vol. 88, No. 1, pp. 132- 136.
346
Sadat, Supra n. 9, p. 228.

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to make General Assembly more authoritative as it symbolises voice of true global
concern.

Annexure 1
Source: http://securitydata.newamerica.net/drones/yemen-analysis.html

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Annexure 2
Pakistan

Yemen 2002

Somalia

Afghanistan

2004

onwards

2007

2015 onwards

onwards

US Covert

onwards

CIA Drone

Action

US Covert

Strikes

Action

Total
strikes

423

113-133, 8119-23, 897(possible), 11(covert)
16-73 (covert)

295-297

Obama
strikes

372

-

-

-

Total
killed

2,4973,999

514-747, 337489
(possible),
196-415
(covert)

188- 326,
40- 141
(covert)

1,344-1,823

Civilians
killed

423-965

65-101, 267, 7-47
61 (possible), (covert)
68-99 (covert)

61-62

Children
killed

172-207

8-9, 6-9
(possible),
26- 28
(covert)

2, 2
(covert)

4-18

Injured

1,1611,744

94-223, 78105(possible),
45

11-21

160-165

Source: Drone War, The Bureau of Investigative Journalism, available at:
https://www.thebureauinvestigates.com/category/projects/drones/drones-graphs/

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GANESH FESTIVAL: POWERS OF POLICE AND SOLUTION
TO POLLUTION
ABHINANDAN PANDEY
ICFAI LAW SCHOOL, HYDERABAD

According to one of survey taken by Abhinandan Pandey who took a survey in
Kanchan bagh police Station of Hyderabad city with regard to ganesh chaturthi
Ganesh Chaturthi was one of the famous in everyday starts with ganesh chautrthi
every year.
The Hyderabad will cross 1 lakh Ganesh idols in twin (including Cyberabad and
secunderabad) .The 10 days vinayaka chaturthi festival starts from 5th September and
immersion on 15th September 2016.Khairtabad, Balapur, Gowlipura, Dergum Chervu
and Kavadiguda are major famous places for the ganesh idols. Lakes in the city
outskirts also have reported a large number of idol immersions. Close to 4,000
Ganesha idols have already been immersed in Saroornagar Lake, while 2,000 more
are expected on Monday. At Shamirpet 152 idols, another 553 idols in Durgam
Cheruvu and 170 Ganesha idols in IDL have already been immersed.
They are causing a lot of pollution of soil,water many pollution is caused in the
reservoir, pounds which is decreasing the potable and drinking water is decreasing
and population is increasing which is prime concern.
Using the Plaster of Paris, Artificial Plastic components, instead of clay. The growing
size, quantity increasing every year in lakhs According to the notification of Hyderabad
police of September 17, 2017 for the final procession.
On the grounds of peace, tranquility, and public order, some special powers were
adhered to police during these 10 days.

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The following are the important points to be borne in mind and observed by
those proposing to install Ganesh idols:1. Application forms seeking Police Clearance to install Ganesh idols will have to be
handed over at the respective Police Stations, clearly indicating the place and the date
of the proposed installation, as also date, time, route and the destination of the
proposed immersion procession.
2. The Organizers seeking Police Clearance for installation should furnish a “NO
OBJECTION CERTIFICATE” from the owner of the premises or land, irrespective of
the fact whether it is Private or Government land. Installation will be permitted only at
places where it will not cause obstruction to free flow of traffic and where there is no
threat to public peace and order.
3. No unauthorized electricity connection at Pandals will be allowed
b) It shall be incumbent on the part of the organizers to apply for supply of electricity
to the T.S.C.P.D.C.L., and obtain Police Clearance in this regard) Certificate from the
T.S.C.P.D.C.L. that the electricity connection is authorized and the same should be
enclosed with the application form.
4. Use of loudspeakers will be restricted to Box Type only and Police Clearance will
have to be taken both by the organizers who hire the equipment and the
dealers/company supplying the equipment. The noise levels should be kept within the
permissible limits. A loud speaker or a public address system shall not be used during
the nights between 10:00 PM and 06:00 AM, as per the directions of Supreme Court
of India.
5. The organizers must provide volunteers with suitable identity cards/badges and use
them for maintaining queues and order at the time of worship in various Ganesh
Mandaps and to guard the idols and pandal. The guarding of idols and the
precautionary measures with reference to lighting of lamps and “Aarthi” will be the sole
responsibility of the organizers.

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6. Organisers desirous of taking out procession for immersion of the idols will apply
individually to the ACsP through the Station House Officers concerned mentioning the
date, time and route for the said procession and obtain Police Clearance beforehand.
7. All the applications duly filled in and enclosing all the relevant certificates must be
handed over at the respective Police Stations by September 11, 2015 and a receipt
obtained. Applications received later are liable to be rejected. The Station House
Officers and Divisional Asst. Commissioners of Police will hold meetings with the
organizers in each P.S. area and finalize the arrangements for issue of Police
Clearance, before the commencement of the festival. The organizers will have to
strictly adhere to the conditions, routes and timings indicated in the Police Clearance
to install the Ganesh idols.
8. All the locality elders, organizers, social workers, Peace Committee and Maithri
members and local leaders are requested to co-operate with the Police and help in
maintaining public order and peace in the city.
9. The above instructions do not apply to Ganesh Idols installed in Private residences
which are not made accessible to the public and not in the public view.
10. The persons installing idols in the cellars of the complexes and those taking out
public procession shall apply for Police Clearance.
Powers empowered Sections Applicable
According Hyderabad City Police Act, 1348
Sec. 21. Village police-officers.--Nothing in this Act shall affect any hereditary or other
village police-officer, unless such officer shall be enrolled as a police-officer under this
Act. When so enrolled, such officer shall be bound by the provisions of the last
preceding section. No hereditary or other village police-officer shall be enrolled without
his consent and the consent of those who have the right of nomination. Policechaukidars in the Presidency of Fort William.-- If any policeofficer appointed under 1
*Act XX of 1856 (to make better provision for the appointment and maintenance of
Police-chaukidars in Cities, Towns, Stations, Suburbs and Bazars in the Presidency
of Fort William in Bengal) is employed out of the district for which he shall have been

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appointed under that Act, he shall not be paid out of the rates levied under the said
Act for that district.
Sec. 22. Police-officers always on duty and may be employed in any part of district.-Every police-officer shall, for all purposes in this Act contained, be considered to be
always on duty, and may at any time be employed as a police-officer in any part of the
general police-district.
According to Criminal Procedure Code, 1973
Sec 144. Power to issue order in urgent cases of nuisance or apprehended danger (1)
In cases where, in the opinion of a District Magistrate, a Sub-divisional Magistrate or
any other Executive Magistrate specially empowered by the State Government in this
behalf, there is sufficient ground for proceeding under this section and immediate
prevention or speedy remedy is desirable, such Magistrate may, by a written order
stating the material facts of the case and served in the manner provided by section
134, direct any person to abstain from a certain act or to take certain order with respect
to certain property in his possession or under his management, if such Magistrate
considers that such direction is likely to prevent, or tends to prevent, obstruction,
annoyance or injury to any person lawfully employed, or danger to human life, health
or safety, or a disturbance of the public tranquillity, or a riot, or an affray (2) An order
under this section may, in cases of emergency or in cases where the circumstances
do not admit of the serving in due time of a notice upon the person against whom the
order is directed, be passed ex parte (3) An order under this section may be directed
to a particular individual, or to persons residing in a particular place or area, or to the
public generally when frequenting or visiting a particular place or area (4) No order
under this section shall remain in force for more than two months from the making
thereof: Provided that, if the State Government considers it necessary so to do for
preventing danger to human life, health or safety or for preventing a riot or any affray,
it may, by notification, direct that an order made by a Magistrate under this section
shall remain in force for such further period not exceeding six months from the date
on which the order made by the Magistrate would have, but for such order, expired,
as it may specify in the said notification (5) Any Magistrate may, either on his own
motion or on the application of any person aggrieved, rescind or alter any order made
under this section, by himself or any Magistrate subordinate to him or by his

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predecessor-in-office (6) The State Government may, either on its own motion or on
the application of any person aggrieved, rescind or alter any order made by it under
the proviso to subsection (4) (7) Where an application under sub-section (5), or subsection (6) is received, the Magistrate, or the State Government, as the case may be,
shall afford to the applicant an early opportunity of appearing before him or it, either in
person or by pleader and showing cause against the order, and if the Magistrate or
the State Government, as the case may be, rejects the application wholly or in part,
he or it shall record in writing the reasons for so doing Comments (1) Order under
section 144 is amenable to writ jurisdiction on violation of any Fundamental Right;
Gulam Abbas v State of Uttar Pradesh, AIR 1981 SC 2198 : (1981) Cr LJ 1835 (2) As
far as possible customary right of a community should not be disturbed; Gulam Abbas
v State of Uttar Pradesh, AIR 1981 SC 2198: (1981) Cr LJ 1835.

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