You are on page 1of 241

KIIT Journal of Law and Society

2015 Volume-5 Number- 1

CONTENTS

Sl. No. Title of Article Name of the Author Page No.


Article
1. Income Tax Benefits for Third Sector P. Ishwara Bhat 01
Organizations in India and Bangladesh:
A Comparative Appraisal from the
Perspective of Purpose Scrutiny and
Efficacy of Social Inclusion Policy
2. Amending the Land Acquisition Law: The Raju KD and Roopa KL 22
Paradox of Leaving the British Legacy
of “Eminent Domain” Principle
3. People’s Perception of Police-Public N. K. Chakrabarti & 43
Relations in the District Capitals of the Arpita Mitra
North Eastern States of India: A Study in
Perspective of Community Policing
4. Global Human Rights Movement: New Rachna Sharma 62
Threats and Challenges
5. Sharing of Non-navigational Water in by Shuvro Prosun Sarker 71
South Asia
6. Patentability of Microorganisms: Law & Victor Vaibhav Tandon 83
Policy in India
7. Carbon Credits – Issues and Challenges Kyvalya Garikapati 99
8. Occupational Pattern and Forest Based Atrayee Banerjee, Arup 108
Livelihoods of the Santals of Purulia, Ratan Bandyopadhyay
West Bengal, India and N K Chakrabarti
9. Critical Analysis of Child’s Right to Bineet Kedia 127
Primary Education in India: With Special
Reference to Right to Education Act,
2009
10. Building Contracts and levy of Value Sanjay Kumar 148
Added Tax - Is there any alternative?
11. How Far Women are Empowered at Gagandeep Kaur 169
Work Places: An Analysis of the Sexual
Harassment of Women at Workplace
(Prevention, Prohibition and Redressal)
Act, 2013 after One Year
12. Putting the Victim’s Families First: The Ashley Needham 183
Comparative Analysis of the Inter-
American Court of Human Rights and
the European Court of Human Rights on
the Right to be Free from Torture in
Cases of Enforced Disappearances
13. U.S. and Afghanistan: Transition and Sanghamitra Patnaik 197
Beyond
14. Discrimination against North East Akanksha Kapur 209
Indians
Case Comment
15. Dashrath Rupsingh Rathore: An Shubham Verma 221
Unnegotiable Chaos
Book Review
16. Sharyn L. Roach Anleu, Law and Social Aindrila Bag and 225
Change, SAGE Publications Ltd., 2010 Shashwata Satyanurakta
Sahoo
17. David Pope and Dan Hill, Mooting and Pushparaj Bharadwaj & 228
Advocacy Skills, Sweet & Maxwell, Amit Sarkar
2014
18. Cindy L. Miller-Perrin and Robin D. Abhipsha Hota and 232
Perrin, Child Maltreatment: An Shantashree Mohanty
Introduction, SAGE Publications Ltd.,
2010
19. Veerendra Mishra, Community Policing: Deblina Majumder and 235
Misnomer or Fact?, SAGE Publication Samrat Datta
India Ltd., 2011
EDITORIAL
Law and society are mutually embedded in each other : law shapes our
daily lives not only through its mandates but also through its language,
categorizations and legal consciousness. Further, law has also encroached
into the domain of legal metaphors which are routinely in vogue. Law in
practice gets enforced selectively, transformed unrecognizably and is even
nullified thereby establishing a gap between formal law and real law. It accepts
existing social arrangements and also invites people to contest power. Law
is both contoured to and infused in society and often imposed from afar or
above. This results in conflict between law and social reality. Austin
Sarat(2004) observed that two discipline are not bounded by theoretical
agreement rather they have “a set of shared conversations...” . At the same
time legal pluralism notion that social systems contain within them multiple
, sometimes conflicting, forms of law and at times threatens to unsettle it.
Law and society scholars tend to raise issues which questions are worth
asking and which conversations are worth having. This volume of our Journal
raises some of these conflicting as well as shared conversation between law
and society scholars.
The Articles in this volume raises some socio-legal issues in Indian
perspectives. The issues are like- efficacy of social inclusive policy; law relating
to land acquisition and legacy of ‘eminent domain’; perception of police-
public relation exploring considerable variations in attitude to law enforcement
agency; environmental issues like carbon credits; livelihoods of forest dwellers;
women empowerment; racist and ethnic discrimination etc. Social context
of these issues are directives to policymakers for consideration. Law is also
seen as a political creation; “it reveals the machinery inside the box- the
political, human, instrumental elements” in its development(Friedman,1990,
The Republic of Choice: Law, Authority and Culture,p.53) . We hope the
insights reflected in various papers will encourage future researchers in the
respective field of study.

Place- Bhubaneswar
Date-21-07-2015 Prof. Nirmal Kanti Chakrabarti
INCOME TAX BENEFITS FOR THIRD SECTOR
ORGANIZATIONS IN INDIA AND BANGLADESH: A
COMPARATIVE APPRAISAL FROM THE
PERSPECTIVE OF PURPOSE SCRUTINY AND
EFFICACY OF SOCIAL INCLUSION POLICY
P. Ishwara Bhat1
Introduction
India and Bangladesh have common historical traditions, similar State
objectives, and typical socio-economic problems, in whose background the Third
Sector Organizations (TSOs) have emerged as a vital instruments of social support
to the public benefit activities. State’s assistance to them in the form of liberal tax
benefits has gone a long way in making them robust and more meaningful to serve
the society. But the tax exemption laws in both the countries have both similar and
different approaches to the issue of grounds, extent, and beneficiaries of such policies.
Since charity and voluntarism have close relation with justice, human rights and
welfare, the focus and impact of regulatory measure have distinct impact upon the
social and cultural life of the country. In both the multicultural systems, the social
inclusion policy underlying the law has significant implication. This paper attempts
at a doctrinal legal study of the two neighbouring legal regimes on the topic, and
comparatively evaluates their experiences in promoting the basic purpose underlying
the tax benefit law vis-à-vis the TSOs. The paper suggests that the tax exemption
law is a policy instrument with significant social mission that supports genuine acts
of charity which help the poor and the sick, promote education, uphold social interests
in acts of general public utility, ecology, social harmony and accords fair treatment
to all religions. The trend in legal development to expand the regime of liberal tax
benefit supporting the social service functions of TSOs in India can be contrasted
to the pro-revenue orientation on the matter by Bangladesh.
Country Profiles compared
Situated in the South Asian region, India and Bangladesh are the two contiguous
geographic areas, which were politically united until the partition in 1947. The
population of India at present is 127 crores (1.27 billion) consisting of 80.5 %
Hindus, 13.4 % Muslims, 2.3 % Christians, 1.9 % Sikhs, 0.8 % Buddhists and 0.4
% Jains. In Bangladesh the population is 15.16 crores (151 million) consisting of
89.7 % Muslims, 9.2 % Hindus, 0.7 % Buddhists and 0.3 % Christians. The human

1
Vice Chancellor, The West Bengal National University of Juridical Sciences, Kolkata,
India
1
KIIT Journal of Law and Society (Volume -5: No-1)

development index (HDI) of India is 0.554 with 74% literacy rate whereas HDI of
Bangladesh is 0.515 with literacy rate of 60 %. Both are free democratic countries
with written constitutions guaranteeing fundamental rights and aspiring to fulfill
the Directive Principles of State Policy. Both have the background of common law
system with power of judicial review. India, with vast territorial base and natural
resources, has federal system whereas Bangladesh has unitary model. Both have
Parliamentary form of governments. Poverty in both the countries and sluggish
HDI are the challenging factors for the policy makers and the society. India is
classified as developing country while Bangladesh is least developed country in the
WTO parlance. Post globalization, civil society organizations or TSOs have enlarged
their efforts to help the people in their access to basic necessities and socio-cultural
facilities.
Following the liberation war, for recovery of the economy, restoration of civic
life, and empower the people, people in Bangladesh relied on TSOs, who took
active interest. Along with globalization which exacerbated the problem of poverty
and unemployment, strengthening the people’s hands by networks of micro credit
societies or self help groups was attempted in an unprecedented manner and as
unique experiment. The social presence of TSOs is explicit as there are 206, 000
non profits (out of whom 189, 000 are religious), 45, 536 registered under Social
Welfare Ministry, and 1925 registered under NGO Affairs Bureau. Aid channeled
from foreign sources through NGOs ranged as high as 250 million US $ per year in
2000. TSOs like BRAC have shown extensive social presence, multifarious activities,
and impact upon the community.2
In India, as per estimate made in 2002, there are 12 lakhs (1.2 million)registered
and unregistered VOs having in total annual turnover of Rs. 20, 000 crores with 27
lakhs paid employees. The number of registered cooperative societies in 2010 figured
6 lakhs. In view of vigorous growth of self-help micro finance groups and cooperative
societies in various states and proliferation of NGOs and religion-based
organizations, the number of NPVOs today can be guessed as exceeding 25 lakhs
(2.5 million). The cooperatives have membership coverage of 249 million, both
vertically and horizontally knit, accessing 97% villages, and embarking on many
economic activities including dairy, fisheries, agricultural marketing, rural finance,
agro-based industries and agriculture. According to Rajinder Sachar Committee
report there are 4.9 lakh registered waqfs in India. The number of registered and

2
BRAC(Bangladesh Rehabilitation Assistance Committee) is present in all districts of
Bangladesh, with 70 million beneficiaries, 28,000 staff, 34,000 teachers, 30, 000 health
workers, 53, 000 poultry workers. It operates 34, 000 schools, 740 libraries, 270 handicraft
production centers, 110 regional centers, 14 training centers and a University. It has
annual turn over of 200 million US $.
2
Income Tax Benefits for Third Sector Organizations in India and Bangladesh...

unregistered endowments and religious organizations is also considerably big. In


the sphere of protection of interests of women, children, disabled persons,
marginalized sections, tribal communities, consumers and environment, and in
promotion of religious, cultural and educational activities, their contribution is
considerable.
Historical conspectus
From the ancient times to the modern age, rulers extended liberal tax benefits
to acts of charity and religion in view of their social contribution to humanism,
learning, and culture. Religious and charitable services were considered as for general
welfare, and were regarded as equivalent to payment of tax.3 The tradition of royal
grants and gifts to temples and their activities had corollary in not taxing them as a
source of revenue but reflected respect to divinity and community effort and
recognition of public interest.4 The basic principle of secularism that state should
not emasculate property interests of dissenting religious faiths essential for their
religion made the rulers to return to them the land or the property acquired from
them through force.5 The colonial income tax law deviated from the English model
(i) by not expressly recognizing advancement of religion as charity, and thus confining
the tax exemption only to public religious trusts; and (ii) by using the words ‘general
public utility’ instead of ‘purposes beneficial to the community’ and thus of providing
wider scope for tax exemption benefit to acts of public utility.6 The social reason
for this consisted in avoidance of partisan and religion based preferences in a multi
religious society. Further, politically influenced colonial policy avoided tax exemption
to expressional and associational activities supporting the freedom movement.7
Income Tax law in the Indian sub continent started with an enactment in 1860
and developed through an improved version in 1866. In 1918, the Income Tax Act
was introduced on the basis of recommendations of the All India Income Tax
Committee. In 1922, the Income Tax Act 1922 was enacted. Section 4(3) of the Act

3
Manu Smriti VII 133: “The king shall not collect taxes from a Shrotriya or a Brahmana
who is well versed in Vedas and bears good character” Vishnu Dharmasutra (Sacred
Books of the East Vol Vii) 16-26-27:” Let him (King) shall not collect taxes from
Brahmanas, for they pay taxes through their pious acts”
4
Kautilya’s Arthasastra 2, 15 provided for tax exemption on the income derived from
land granted by the King. Also see, Romila Thapar, Cultural Pasts (New Delhi : Oxford
University Press, 2010) P. 83-84
5
R. Champakalakshmi, “From Devotion and Dissent to Dominance” in David N Lorenzen,
Religious Movements in South Asia 600-1800 (New Delhi : Oxford University Press,
2004,2011) pp. 69-70
6
On legislative history see S Rajaratnam (ed) Sampath Iyerngar’s Law of Income Tax
10th ed Vol I (New Delhi : Bharat Publisher,2005) pp 1-5
7
Re, The Tribune’s Trustees (1939) 7 ITR 415; In re Lokmanya Tilak Jubilee National
Trust fund, Bombay, In re G V Salvekar, AIR 1942 Bom 61
3
KIIT Journal of Law and Society (Volume -5: No-1)

of 1922 defined the term ‘charitable purpose’ as inclusive of relief of the poor,
education, medical relief and the advancement of any other object of general public
utility. Although largely based on the English concept of charity, it deviated from
the Statute of Elizabeth (i) by not expressly recognizing advancement of religion as
charity, and thus giving scope for confining the tax exemption benefit only to public
religious trusts8; (ii) by using the words ‘general public utility’ instead of ‘purposes
beneficial to the community’ and thus of providing wider scope for tax exemption
benefit to acts of public utility9. The Lahore High Court10 and the Privy Council11
recognized the deviation from English law and considered the English decisions as
unhelpful in interpreting the Indian definition. The distinction is crucial, and is
followed in both pre-independence and post-independence period. The social reasons
for accommodation of cultural diversity in the colonial system consisted in avoidance
of partisan and religion based preferences in a multi religious society and aspiration
to tap wide potentially of charity for objects of general utility, a policy which resisted
thoughtless transplantation of colonial master’s law.
Theoretical aspects
Theoretical justifications for tax exemption of TSOs include the following
arguments: that it partially relieves the government’s burden of doing public good
and subsidizes the robust and pluralistic acts that promote public welfare 12; that
TSOs are mere conduits through which the funds move from the donors to the
ultimate recipients although they have discretion in administering the disbursal of
benefit13; that tax exemption serves to compensate for difficulties that non profits

8
Last part of Section 4(3) of the Income Tax Act 1922made the tax emption clause not
applicable if the trust property is held for private religious purposes which does not ensure
for the comfort of the public. Section 13 of the present IT Act 1961 reflects similar policy
9
For the analysis that charitable purpose under Indian Law goes much farther than
definition of charity in English because of this deviation see Sampath Iyenger, Supra P.
439, 441. Also see Kanga, N A Palkhivala and Vyas, The Law and practice of Income Tax
9th ed (Dinesh Vyas) vol I (New Delhi: Lexis Nexis Butterworth 2004) p. 521-522 All
India spinners Association v CIT(1944) 12 ITR 482 (PC) ; CIT v Surat Art Skill Cloth
Mfg. Association 121 ITR, 11-16. to illustrate the difference, in English law trust for the
preservation of all animals or birds or non-human creatures is void because it does not
bring benefit to the human community (Re Grove-Grandy, (1929) 1 ch 557) whereas in the
Indian law trust for preserving of animals, without the further question whether it promotes
feeling of kindness, is for general public utility (Vallbhdas Natha V. CIT, 15 ITR 32)
10
Trustees of the Tribune, In re (1935) 3 ITR 246, 272 (Lah)
11
Trustees of the Tribune, in Re (1939) 7 ITR 415, 420 (PC)
12
James J. Fishman and Stephen Schwarz, Non profit Organizations: Cases and Materials
4 th Ed (New York: Foundation Press, 2010)p;298; Trinidad v. Sagrada Ordende
Predicadores 263 US 578 44 Sct.204 (1924)
13
Boris I Bittker and George K. Radhurt, ‘The Exemption of Nonprofit Organisations
from Federal Income Taxation’ 85 Yale L.J. 299,307 -316 (1976); also see James Fishman
sup.n.14, 302 -7
4
Income Tax Benefits for Third Sector Organizations in India and Bangladesh...

experience in raising capital14; and that it enables social experiments, widens


knowledge, and protects human rights.15 These constitute grounds for distinguishing
TSOs from commercial sector, provide justification for reasonable classification,
and satisfy the requirement of equality. The functions of tax exemption law include
support, equity, regulation and supervision or border patrol.16 Since charity assists
religion and freedom of discussion; enlarges access to education, health, food and
other basic necessities of life; and helps in lessening the pains of poverty, people’s
aspirations to support charity have added to the process of rediscovering the
potentialities of democracy in the post-colonial period to actualize the goals of
people’s welfare. Charity’s contribution in effectuating social, economic and cultural
rights has been well-established over the centuries in various parts of the globe.
Article 13 of the General Assembly’s Declaration on the Right and Responsibility
of Individuals, Groups and Organs of Society to Promote and Protect Universally
Recognized Human Rights and Fundamental Freedoms 1999 (UN Declaration on
Human Rights Defenders). Article 13 states, “Everyone has the right, individually
and in association with others, to solicit, receive and utilize resources for the express
purpose of promoting and protecting human rights and fundamental freedoms,
through peaceful means, in accordance with Article 3 of this Declaration.” Article
3 obligates the States to ensure that domestic law is consistent with the task of
implementing human rights instruments. In addition, tax exemption for TSOs
effectuates the constitutional policy of economic justice through equitable distribution
and non-concentration of wealth.
According to O W Holmes, “Taxes are what we pay for a civilized society.” 17
It is a fundamental principle of taxation that tax shall be imposed solely for the
purpose of raising revenue and should be imposed with absolute equality or as near
equality as possible, upon the rich and the poor alike. But in a welfare State the
policy of exempting the poor from the burden of some taxes like Income Tax, and

14
Henry Hansmann, ‘The Rationale for Exempting Nonprofit Organizations from
Corporate Income Taxation’ 91 Yale L.J 54, 72 -75 (1981)
15
Chauncey Belknap, ’The Federal Income Tax Exemption of Charitable Organization:
Its History and Underlying Policy’ extracted in James Fishman et al, supra n.14 p.299.
Since governmental function is also for bringing people’s welfare (Article 38 of the
Constitution), NPVOs can be considered as supplementing the governmental function
and are acting as partners in advancement of welfare activities. Because of their social
presence, local knowledge and active help, genuine NPVOs assist in meeting social and
economic goals to which the government is committed to.
16
John Simon, Harvey Dale a Laura Chisholm, ‘The federal Tax Treatment of Nonprofit
Organizations,’ in Walter W. Powell and Richard Steinberg (ed), The Nonprofit Sector:
A Research Handbook 2nd ed. 2006 p. 267; also see James Fishman et al, Supra n. 14 p.
296
17
Cited by Karla Simon, ‘Rule for Not-for- Profit Organizations: A Survey of Practice’
paper presented in the Conference on Taxes, Civil Society and Law in Wien, 2004
5
KIIT Journal of Law and Society (Volume -5: No-1)

subjecting the rich to more tax emerged.18 Taking the Holmes notion further, it is
possible to reason that since civil society is a prerequisite for civilized society,
support of tax benefit that enables the TSOs function better is part of the tax
obligation. Hence, TSOs persuade for carving a reasonable niche for them to protect
from the tax net and make their activities effective. Society aspires for a sustainable
and fair atmosphere for charity body’s competence and facility for supporting public
welfare activities and for promotion of human rights. As Fukuyama observed, “Civil
society serves to balance the power of the State and to protect the individuals from
the state’s power.”19 On the other hand, the Holmes view can be taken for the
proposition that since tax collection is so essential for civilized society, any deviation
from the rule of its equal operation ought to be justified in greater good and on the
basis of democracy’s choice. This makes tax collection the general rule and tax
exemption, an exception. In a least developed country where every resource counts
a lot, the government cannot afford to have a soft approach to tax benefit claims.
Thus, tax exemption policy is product of several interacting forces and considerations
that support human rights and public welfare activities. The functioning of
republicanism in this context has cascading effect to flourish democratic and
multicultural values of the society.
Constitutional dimension
The constitutions of both the countries adhere to the goals of radical
transformation in the rural areas through the promotion of agriculture and cottage
industries. According to Article 15 of the Constitution of Bangladesh, “It shall be a
fundamental responsibility of the State to attain, through planned economic growth,
a constant increase of productive forces and steady improvement in the material
and cultural living of the people with a view to securing to its citizens (a) the
provision of the basic necessities of life, including food, clothing, shelter, education
and medical care; (b) the right to work…(c) the right to reasonable rest…(d) the
right to social security, that is to say to public assistance in cases of undeserved
want arising from unemployment, illness or disablement, or suffered by widows or
orphans or in old age, or in such other cases.” The position prevalent in India on
these matters is similar because of the concerted application of Directive Principles
of State Policy and guarantee of right to life. Regarding education, public health,
morality, protection and improvement of environment and bio-diversity, both the
Constitutions have explicit commitments.

18
W. Friedmann, Law in a Changing Society, (Delhi: University Book House, 1959 India
3rd rept.1996) p. 85.
19
Francis Fukuyama, ‘Social Capital and Civil Society’ a paper presented in IMF in 1999,
accessible in http://www.imf.org/external/pubs/ft/seminar/1999/reforms/fukuyama.htm cited
in Karla Simon, ‘Tax Rule for Not-for- Profit Organizations: A Survey of Practice
6
Income Tax Benefits for Third Sector Organizations in India and Bangladesh...

The Bangladesh Constitution says, “The state religion of Bangladesh is Islam,


but the State shall ensure equal status and equal right in the practice of the Hindu,
Buddhist, Christian and other religions”(Article 2 A). Secularism is one of the
fundamental principles of state policy (Article 8). This is to be realized by elimination
of communalism, grant of political status to any particular religion, abuse of religion
for political purposes and any discrimination against, or persecution of, persons
practicing any particular religion (Article 12). These newly inserted clauses make
it categorical that Bangladesh is not a theocratic state and the governmental policy
is required to treat all religions equally.20 Hence, in the matter of tax exemption to
religious or charitable institutions, no discrimination on account of religion is allowed.
The Constitution of India, in addition to avowing to secular policy and guarantee
of equal religious freedom of all persons and religious denominations, provides in
Article 27, “No person shall be compelled to pay any taxes, the proceeds of which
are specifically appropriated in payment of expenses for the promotion or
maintenance of any particular religion or religious denomination.” There is no
provision in the Bangladesh Constitution similar to Article 27. But by virtue of
Article 12 referred to above, the position is similar and equal treatment of all religions
is constitutionally provided for. In India, Article 27 would be violated only if
substantive part of the tax collected is utilized for a particular religion.21 Establishing
religious institutions, including charitable ones, is part of religious freedom.(Article 26)
The values of multiculturalism in both the systems are reflected in the provisions
on Directive Principles, Fundamental Rights and duties. Article 23A of the
Bangladesh Constitution says, “The State shall take steps to protect and develop
the unique local culture and traditions of the tribes, minor races, ethnic sects and
communities.” Articles 29 and 30 of the Indian Constitution provide for conservation
of cultural, educational and minority rights. National culture contemplated in
Bangladesh Constitution and composite culture contemplated in Article 51 A in the
Constitution of India have common in that all sections of the people are afforded
the opportunity to contribute towards and to participate in the enrichment of national
culture. The guarantee of freedom of association is subject to reasonable restrictions
in the interests of social harmony.
In addition to the goal of harmonious society, the policy of social justice is a
central principle in both the systems. Removal of income disparities, special provision
for women and children, special provision in favour of any backward class or section

20
See for a discussion, Mahmud Islam, Constitutional Law of Bangladesh 3rd Ed(Dhaka:
Mullick Brothers, 2012) pp. 373-76
21
Prafull Goradia v. Union of India, AIR 2011 SC (Supp) 601; also see Union of India v.
Rafique Shaikh Bhikan, (2012) 6 SCC 265
7
KIIT Journal of Law and Society (Volume -5: No-1)

of citizens, emancipation of peasants and workers, prohibition of forced labour are


some of the provisions commonly traceable in both the systems.
Thus, the constitutional philosophy in both the countries is in tune with the
idea of encouraging charitable and social service organizations by facilitative and
protective regulatory measures. Income tax exemption to charities passes the test
of equality on this count if the specific measures are also reasonable.
The basic legal policy
Laws in both the regimes exempt from taxation the income of the charitable
and voluntary institutions (TSOs) which are derived from their properties held under
trust including contributions received from donors wholly for charitable or religious
purposes. Exclusive benefit to private religious purpose or for donors or their families
is a disqualifying factor for tax exemption. The requirements of registration and
other formalities can also be found. The cooperative societies are also entitled to
tax exemption in respect of their income. While in India, the donors are also exempted
from tax exemption for their donation, in Bangladesh such benefit is not extended
to donors. This difference has its own impact on the factor of incentive. But the
donation made in the form of zakat is entitled to tax exemption. The changing tax
policies, governmental circulars and judicial decisions have moulded the growth of
the law.
Meaning of ‘charitable purpose’
According to section 2 (16) of the Bangladesh Income Tax Manual, 1984,
‘charitable purpose’ includes relief of the poor, education, medical relief and the
advancement of any object of general public utility. This means that the position
that prevailed in 1922 and the judicial gloss around it continue to govern the field.
This is distinct from the English definition of charity by excluding the element of
religion, and substituting general public utility in the place of benefit to community.
Hence, courts in Bangladesh continued the British Indian approach in interpreting
the same. The approach of the legislature is not opening the gate of tax exemption
quite wide so as to accommodate charity at the cost of public revenue. Neither the
inclusion of new ground of charity nor the policy of carving out special space for
charity by business world has been attempted in Bangladesh. The constraints of
public finance have kept the soft approach towards charitable institutions at a
distance.
India had continued the colonial law of taxation for a decade. New Income Tax
Act was passed in 1961. The definition clause as stood originally in 1961 had
stated, “charitable purpose” includes relief of the poor, education medical relief,
and the advancement of any other objects of general public utility not involving the
carrying on of any activity for profit.” The condition ‘not involving the carrying on
8
Income Tax Benefits for Third Sector Organizations in India and Bangladesh...

of any activity for profit’ qualifying the words ‘objects of general public utility’
was subsequently deleted in 1984, thus giving scope for mixing profit oriented acts
with charity so that business may robustly support charity.
In 2008, first proviso was added: “Provided that the advancement of any other
object of general public utility shall not be a charitable purpose, if it involves the
carrying on of any activity in the nature of trade, commerce or business, or any
activity of rendering any services in relation to any trade, commerce or business,
for a cess or fee or any other consideration, irrespective of the nature of use or
application, or retention of the income from such activity.” The Finance Minister
justified the change by stating that the claim by some business entities that their
activities were also falling under ‘charitable purpose’ was not within the intention
of Parliament, and that the proposed change would ensure that “Genuine charitable
organizations will not in any way be affected.”22 Further, charitable organizations
supporting business activities, for example, Chamber of Commerce and similar
organizations which render their services to members would not be affected by the
amendment, and their activities would be regarded as any other objects of general
public utility.
In 2009, there was inclusion of “preservation of environment (including
watersheds, forests and wildlife) and preservation of monuments or places or objects
of artistic or historic interest” in the main clause as a type of charitable purpose.
Apropos, it can be stated that the growing importance of the policy of environmental
protection and social acceptance of its paramount position in public action have
made a deep impression upon tax exemption policy. The interest shown by charitable
trusts in protection of environment and heritage buildings has also been reciprocated
by law.23 The phenomenon of re-democratization has worked for the benefit of
ecology.
In the judicial treatment, the shift of focus from motive/object to nature/purpose
of application is the achievement of the first proviso. This departure towards objective
criteria is for good because what ultimately benefits to the society is application of
the fund for charitable purpose. Now it is the burden of the claimant to establish
that the consideration or income of the economic transaction (trade, commerce, or
business) is used or applied for general public utility. While expansion of tax
exemption to charity took place due to the democratic process, democracy’s
inclination to gather support to charity-sponsored welfare activity from the business

22
Cited in S. Rajaratnam, M. Natarajan and CP Thangaraj, Law and Procedure on
Charitable Trusts and Religious Institutions 10th ed (Mumbai: Snow white Publications,
2010) p.424
23
For example, Infosys Foundation has a permanent scheme of protecting the heritage
buildings.
9
KIIT Journal of Law and Society (Volume -5: No-1)

world became explicit. Both in 1984 and 2009 or even in 2011, the democratic
process had initiated and effectuated the change.
The scope of ‘general public utility’ as a ground of tax exemption for charity
has been shaped by legislative changes and judicial interpretations. Accurate
definition of these words is very difficult. But they stand in contrast to, and exclude
the object of private gain such as an undertaking for commercial profit, though the
undertaking may sub serve general public utility24 In order to know exclusion of
private gain, in addition to the object of the trust, the purpose for which the income
is applied shall also be considered.25
The insertion of modifier (1961) “not involving the carrying on of any activity
for profit” had the effect of severing the charitable purpose from profit making
undertaking26. Two interpretations for this clause were possible: (a) totally excluding
the profit making undertaking from this privilege27; and (b) looking to the issue
whether the real object is making of profit or whether it is primarily serving the
charitable purpose, and after making a purpose scrutiny arriving at appropriate
conclusion. In Lok Shikshana Trust28 Beg J. favoured the second approach. The
implication was that if the profits must necessarily feed a charitable purpose, under
the terms of the trust, the mere fact that the activities of the trust yield profit will not
alter the charitable character of the trust. The larger bench of the Supreme Court in
CIT v. Surat Art Silk Cloth Mfrs Association29 approved the view of Beg J. According
to the Court, ‘activity for profit’ connoted that the predominant object of the activity

24
All India Spinners Association v. CIT 12 ITR 482, 488(Pc)
25
Sivakasi v. CIT 217 ITR 118
26
According to Sen J this had radically altered the law and deliberately intended to cut
down the wide ambit of the fourth head as engagement in activity for profit by religious
or charitable trusts provided scope for manipulation for tax avoidance. CIT v. Bar Council
of Maharashtra (1981) 130 ITR 29 (SC)
27
In Sole Trustee, Lok Shikshana Trust v. CIT (1975) 101 ITR 234 (Sc) H.R. Khanna and
Gupta JJ. for the majority adopted this approach and viewed that ordinarily profit motive
is a normal incident of business activity and if the activity of a trust consist of the carrying
on of a business and there are no restriction on its making profit, the court would be well
justified in assuming that the object of the trust involved the carrying on of an activity for
profit. V R. Krishna Iyer J in Indian Chamber of Commerce v. CIT (12975) 101 ITR 796
SC AIR 1976 SC 10 held that in view of express statutory interdiction upon profit
making activity, an institution which carries out charitable purposes out of income derived
from property held under trust wholly for charitable purposes may still forfeit the claim
to exemption in respect of such income. “If you want immunity from taxation, your
means of fulfilling charitable purposes must be unsullied by profit-making ventures. The
advancement of the object of general public utility must not involve the carrying on of
any activity for profit. If it does you forfeit.” But this position stands overruled after
Surat Art Silk Manufacturing co case (1980) 121 ITR 1 (SC).
28
Sole Trustee, Lok Shikshana Trust v. CIT (1975) 101 ITR 234 (SC)
29
(1980) 121 ITR 1 (SC)
10
Income Tax Benefits for Third Sector Organizations in India and Bangladesh...

must be the making of profit. Following `Surat Art Silk, P.N. Bhagwati J. in IENS
observed, “where an activity is not pervaded by profit motive but is carried on
primary for ensuring the charitable purpose, it would not be correct describe it as
activity for profit merely because profit accrues.” 30 This necessitates scrutiny of
genuineness of purpose. Profit by itself is not an anathema, but private gain from
profit is detrimental to the character of charity.
By going for purpose scrutiny, the Court considered that the Federation of
Chamber of Commerce which mainly aimed to protect and promote trade, commerce
and industry without making private gain was for charitable purpose.31 Where
trustees were empowered to undertake profit making activity like distribution of
event only for achieving the charitable objects of the trust, their acts did not detract
from charitable objects of the trust, as per Rajasthan High Court 32 . Similarly,
letting out shops and utilization of the rent so earned for maintaining dharmashala
was tax exempt activity.33 This approach has been applied by various High Courts
when the halls or spaces are rented out the proceeds of which are used for charity.34
In 1983, the modifier ‘not involving the carrying on of any activity for profit’
was deleted. The focus on public utility and avoidance of private gain became
clearer. Inquiry into application or use of profit for charity became a sound
proposition. But in reality, as Kanga and Palkhivala viewed, the ghost of deleted
words still haunted the business profits which were used for generally public utility.35
Scrutiny of the genuine purpose was the method of filtering.36 Apropos it can be
said that such scrutiny is really to find out the existence or general public utility and
use of income for that purpose, and not something related to that involved in the
deleted words.
An attempt to keep the ghost out took place in 2008 during the era of
liberalization and perhaps to allow liberal flow of profit of business to charity. This

30
CIT v. IENS136 ITR 81, 87-88; Pathak J. observed, “I am unable accept the proposition
that if the purpose is truly charitable, the attainment of the purpose must rigorously
exclude any activity for profit”. Also see CIT v. AP Riding Club 168 ITR 393; CIT v. MP
Anaj Mahasangh 171 ITR 677. In contrast, where profit making is the predominant
object, in spite of its aim to advance an object of general public utility, it would cease to
be a charitable purpose under Sec 2(15)
31
CIT v. Federation of Indian Chamber of Commerce & Industry 130 ITR 186
32
Umaid Charitable Trust v. CIT 125 ITR 55.
33
CIT v. Ganesh Ram Laxminarayan Goel 147 ITR 468; Raghunath v. CIT 158 ITR 432.
34
CIT v. Sangit Kala Mandir Trust , 166 ITR 217 CIT v. Madras Stock Exchange Ltd 105
ITR 546 CIT v. South Indian Film Chamber of Commerce 129 ITR 22
35
Kanga, Palkhivala and Vyas, The Law and practice of Income Tax 9th ed (Dinesh Vyas)
vol I (New Delhi : Lexis Nexis Butterworths 2004 ) p. 537
36
For example, the Supreme Court in Hyderabad Race Club v. CWT 223 ITR 703 held
that conducting horse race and breeding horse for that purpose are not charitable acts.
11
KIIT Journal of Law and Society (Volume -5: No-1)

involved insertion of the first proviso. According to the Government Circular, if


trade associations involve in trade under the principle of mutuality to contribute to
a common fund for financing of some public utilitarian object or venture without
participation of third parties, the surplus returned is not chargeable to tax. When
the trade or industrial associations (for example Chamber of Commerce)claim to
be both charitable institutions and mutual organizations, and activities are restricted
to contributions from and participation of members only, they will not fall under
proviso to section 2 (15) owing to principle of mutuality. Dealing with outsiders for
profit would disentitle them from tax exemption. The idea behind the proviso is that
no assessee can make use of ‘general public utility’ as a mask or device to hide the
true purpose which is trade, commerce or business. Each case will be decided on
the basis of its facts, and any generalization is impossible. Thus, the development is
towards objective criteria of charitable purpose to be proved by the assessee on the
basis of facts. This is for good because what ultimately benefits to the society is
general utility promoting charitable purpose. The shift from motive/object to nature
and purpose of use or application is the achievement of the proviso. Now it is the
burden of the claimant to establish that the consideration or income of the economic
transaction (trade, commerce or business) is used or applied for general public
utility.
This development also did not satisfy the market economy. The ghost of
uncertainty about tax exemption attached to ‘advancement of any other object of
general utility’ by referring to use/application for genuine purpose was to be removed
at least to some extent. Second proviso was added in 2010 to allow tax emption for
receipts upto the aggregate value of Rs. 10 lakhs, which was enhanced to Rs. 25
Lakhs in 2011. Thus, without further enquiry, the authorities would be allowing tax
exemption up to Rs. 25 lakhs. Increasing recognition of profit sector’s link with
charity is explicit in the development. Since the new proviso also refers to activities
mentioned in first proviso, purpose scrutiny is not kept away, but is central to the
analysis.
The factor of general public utility in the context of charity denotes altruism
and benefit to the public37. A provision in the trust deed to prefer poor relatives of
the settler38 or that provides for distribution of profits or assets at the time of
dissolution of the association39 do not qualify for tax exemption. Similarly trust to
benefit a group of individuals not linked by public or impersonal factor is not

37
Sole Trustee Lok Shikshana Trust v. CIT (1975) 101 ITR 234 (SC)
38
CIT v. Jamal Mohamad, ITR 375; Gordhandas Govindram Family Charity Trust v.
CIT 21 ITR 231, (Bom) 88 ITR 47 (SC) 1973
39
Truck Operator’s Union v. CIT (1981) 132 ITR 62 ( Del)
12
Income Tax Benefits for Third Sector Organizations in India and Bangladesh...

charitable.40 Law does not hold that charity shall begin from home. In home, there
is a legal duty towards one’s own kith and kin. Charity is a voluntary and other
regarding act, and not an instrument of family aggrandizement or duty-bound act.
But when charity’s focus is on unidentifiable members of a public or a section or
class of public, it is also a situation of benefit to the public. Hence, utility to cross
section of the society like Khoja community41 Saraswath community42 , Agarwal
community43 , certain classes of Hindu community44 or Scheduled Tribe 45 is also
coming under the proviso of section 2(15). An object beneficial to a section of the
public is an object of general utility and it is not necessary that it should benefit the
whole mankind or country or state.46 By looking to the issue, to whom the benefit
goes, the courts engage in purpose scrutiny.
Sometimes, the objects mentioned in the trust deed may include both charitable
and profit making purposes whereas in the actual functioning of the trust, the profit
making purposes might be defunct or only incidental. In such circumstance courts
have looked into the overwhelming functions or purposes in deciding about tax
exemptions. This is clear in cases relating to kuries or chits. In Dharmadeepti
cases47 the Supreme Court examined various purposes of the organization and held
that running of chits in the facts of the case was incidental or ancillary to the main
object of promoting education and giving charity and the overall functions of the
organization was promoting public utility. In contrast, in Dharmopasanam case48
when the company had discretion to use the fund for either non charitable or more
charitable purpose, and there was no clear evidence about use of fund for charity, it
was not entitled to tax exemption. Again, scrutiny of purpose and identification of
purpose for which fund is used provided a way of resolution of the problem49

40
Arur v. CIT (1945) 13 ITR 465 (Bom); Gordhandas Govindram Family Charity Trust
v. CIT (1973) 88 ITR 47 (SC)
41
Bai Hirbai Rakim Aloo Paroo and Kesarbhai Dharmsey Kakoo Charitable & Religions
Trust v. CIT (1968) 68 ITR 821 (Bom)
42
CIT v. Saraswath Poor Students Fund, (1984) ITR 142 Kar.
43
CIT v. Paramhams Ashram Trust (1993) 203 ITR 711 (Raj.)
44
CIT v. Trustee Seth Meghji Mathurdas Charity Trust (1959) 37 ITR 419 (Bom.)
45
Girijan Cooperative Corporation Ltd v. CIT (1989) 178, 359, AP
46
Ahmadabad Rana Caste Association v. CIT (1971) 82 ITR 704 (SC) overruling Kediya
Jatiya Sahayak Sabha Fund v. CIT (1963) 49 ITR 74 (Cal) Surjidevi Kunjilal Jaipuria
Charitable Trust v. CIT (1978) 112 ITR 368 All; followed in CIT v. Anand Swarup
Brijendra Swarup Charitable Trust (1990) 187 ITR 656 All; CIT v Pt. Ram Shankar
Misra Trust (1996) 222 ITR 22 (All)
47
Dharmadeepti v. CIT (1978) 114 ITR 454 (SC)
48
CIT v. Dharmopasamonam Co. (1978) 114 ITR 463 (SC)
49
R S Pathak J. in CIT v. Dharmodayam Co. (1977) 109 ITR 527 SC viewed that in
examining whether a trust is charitable trust all the objects of the trust shall be referred
to, and in case a particular object was never intended to be undertaken, the court shall
ignore the object.
13
KIIT Journal of Law and Society (Volume -5: No-1)

A survey of case law on identification of charitable purpose under section


2(15) read with sections 11 to 13 point out that the process involves primarily
examination of the purposes for which fund is used. The purposes like imparting of
instructions in scientific principles or artistic skills 50 ; conducting music concert
and running school,51 establishing of hostels,52 gifts for samaradhana or feeding,53
gifts for erection of public wells,54 gifts for bathing ghats and swimming pools,55
gifts for planting and rearing shady trees,56 for providing medical reliefs,57 for hand
spinning and weaving to relieve the poor58; for choultries and rest houses and for
marriages of poor girls59 have been considered as for charitable purposes. These, in
fact promote economic, social and cultural rights of people. Charity’s link with
human rights is immensely demonstrated here. But when the trust deed vaguely
refers to charity and social benefit of community hall, but the income derived from
renting out the building as kalyan mantap is not applied for any charitable purpose,
the assessee is not entitled to tax exemption.60 This demonstrates objective conducting
of purpose scrutiny by looking to the purpose of application of income.
The legal developments relating to the first three heads of charity have
connections with values of welfare democracy. Relief of the poor need not be
distribution of doles or alms. A scheme that employs unemployed agriculturists by
providing them opportunity to work and earn income from spinning is relieving the
poor. Under section 10 (23B) income of public charitable trust/institution for
development of khadi and village industry is not taxable.61 Rehabilitating the
economically handicapped women and destitute by setting up a unit of watch factory
without intention to make profit is also relieving the poor62. The objective of aiding
rural reconstruction work and cottage industry brings the trust within the scope of

50
Victoria Technical Institute v. CIT (Addl) (1991) 188 ITR 57 SC
51
CIT v Tyaga Brahma Gana Sabha (regd) (1991) 188 ITR 160 Mad.
52
Monie v. Scott LTR 43 Bom 281; Fanindra Kumar Mitter v. Administrator General of
Bengal 6 CWN 321
53
Ramaswami v. Aiyaswami AIR 1960 Mad 467
54
Jama Bai v. Khimmji Vallabdas ILR 14 Bom.
55
Hemant Kumar Debi v. Gourishankar AIR 1946 PC 38; CIT v. Breach Candy Swimming
Bath Trust (1955) 27 ITR 279 (Bom.)
56
Ramaswami v. Aiyaswami AIR 1960 Mad 467
57
CIT v. Rajmitra Bhailala Amin Charitable Trust (1964) 54 ITR 241 Guj.;
58
All India Spinners Association (1944) 12 ITR 482 PC; CIT v. Adarsh Gram Trust
(1986) 159 ITR 41 Raj.
59
Jugal Kishor v. Lakshmandas Raghunathdas ILR 23 Bom. 659; Gordhandas v. Chunnilal
ILR 30 All 111; CIT v. Bhartiya Khatri SewaTrust (1994) 205 ITR 96 (All)
60
Gangabai Charities v. CIT, AIR 1992 SC 1765
61
All India Spinners Association v.CIT (1944) 12 ITR 482 (PC)
62
CIT v. Bhartiya Khatri Sewa Trust (1994) 205 ITR 96 All. CIT v. Gayathri Women
Welfare Assoication (1993) 203 ITR 389 (Kar)
14
Income Tax Benefits for Third Sector Organizations in India and Bangladesh...

exemption head.63 Private family trust helping out to meet marriage expenses is not
relief of the poor.64 As per the official circular, relief of the poor encompasses a
wide range of objects for the welfare of the economically and socially disadvantaged
or needy. It will therefore include within its ambit purposes such as relief to destitute,
orphans or the handicapped, disadvantaged women and children, small and marginal
farmers, indigent artisans or senior citizens in need of aid.
Aid to education may occur in various ways. Establishing of free schools 65;
financial assistance to the poor and deserving students by way of scholarship grants
for purchase of books66; encouraging the habit of reading67; spreading knowledge
and art of classical music drama, painting, or modern fine arts68 are the instances of
charity for education. Education involves systematic instruction, schooling and
training to popular the youth for the work of life69, According to H.R. Khanna J,
what education connotes in that clause is the process of training and developing the
knowledge, skill, mind and character of students by normal schooling.70 Professional
journalism, political propaganda and private coaching do not come within its ambit.71
Support to study ethical principles, promotion of Sanskrit study, of encouragement
to students sports on the contrary, promote education.72 However, a museum will
not fall within the scope of education.73 Under Sec 10(21) income of a scientific
research association, which is applied wholly to the objectives for which it is
established is not taxable. Under Sec 10(23C) iii ab and iii ad and iv any income

63
Thiagarajan Charities v. Addl. CIT (1997) 225 ITR 1010 (SC); ACIT v. Thanti Trust
(2001) 247 ITR 785 SC; CIT v. Dharmodayam Co. (2001) 248 ITR 816 SC
64
Gordhandas Govindram Family Trust v. CIT (1952) 21 ITR 231. But general charity to
meet marriage expenses of the poor if good charity. See CIT v. Anand Swarup Brijendra
Swarup Charitable Trust (1991) 187 ITR 656. All ; CIT v. Pt Ravi Shankar Misra Trust
(1996) 222 ITR 252 All
65
Katra Education Society v. ITO (1978) iii ITR 420 All; CIT v. Sindhu Vidya Mandal
Trust (1983) 142 ITR 633 Guj Rishi Chaitanya Trust v. Dy Director IT, (2003) 127
Taxman 89 Del
66
CIT v. Saraswat Poor Studetns Fund (1984) 150 ITR 142 Kar.
67
IRC v. National Book League (1958) 24 ITR 461 (CA)
68
Varier PS v. CIT (1940) ITR 628 Mad; CIT v. Rao Charitable Trust (1976) 102 ITR
474 Kar; Royal Choral Society v. IRC (1944) 12 ITR Supp CA; VCS Kuchipudi Art
Foundation v. Dy CIT (2011) 10 ITR 201 Chennai
69
Loka Shikshana Trust v. CIT (11975) 101 ITR 234, 241 SC
70
Ibid
71
Ibid; Lokamanya Tilak Jubilee National Trust Fund, In re (1942) 10 ITR 26 Bom; CIT
v. All India Hindu Mahasabha, (1983) 140 ITR 748 Del; Bihar Institute v. CIT (1994)
208 ITR 608 Pat
72
Webber Re Barkly Bank v. Webber (1954) 3 All ER 712; Ecumenical Christian Centre
v. CIT (1983) 139 ITR 226 kar; Ganeshi Devi Ram Devi Charity Trust v. CIT (1969) 71
ITR 696 cal; CIT v. Estate of PB Kayan Trust (1985) 155 ITR 60 Cal.
73
CIT v. Maharaja Savai Mansingh Museum Trust, (1988) 169 ITR 379 (Raj).
15
KIIT Journal of Law and Society (Volume -5: No-1)

received on behalf of university or educational institutional whether funded by state


or not, but existing solely for educational purpose and not for purpose of profit is
not taxable. It should be noted that the spurt in the field of education by private
educational institutions or self-financed educational institutions during the last three
decades, emergence of private and deemed universities, the enactment of Right of
Children to Free and Compulsory Education Act, 2009 and series of judgments
reaffirming that educational institutions shall be administered on charity basis get
support and stimulation from the facilitative role of tax exemption law.74
Two recent decisions have dealt with the issue of commercialization of education
and extension of tax exemption. In the first case, the Income Tax Appellate Authority
of Chennai observed, “the definition clearly shows that carrying on educational
activities by itself is not a charitable purpose. The concept of charitable purpose
may be manifested in different forms like relief of the poor, education, medical
relief, etc, but a charitable purpose should always take care of the welfare and
interest of the public and especially the poor section of the public. Running schools
by collecting huge amounts of fees with five star facilities cannot be treated as
charitable activity only on the ground that the business carried on by such institutions
is the business of education.”75 In the second case, on the issue of surplus of income
as not disentitling the educational institution from tax exemption, the Delhi High
Court clarified that occurrence of surplus income in a particular year would not be
ground for loss of status of charity.76
“Medical relief”, according to Kanga and Palkhivala, “does not mean free
treatment or treatment or at less than the ordinary price for all patients” 77 Running
special wards for patients who pay full price is not fatal to the charitable character
of a hospital78. Under Sec 10(23C) income received by any hospital or other
institution for the reception and treatment of persons sufficient from illness or mutual
defectiveness or of persons during the convalescence or requiring medical attention
and rehabilitation is not taxable.
The overall approach of the Indian judiciary is towards exclusion of purely
religious purpose, private gains and wholly commercial acts from the purview of

74
Society for Unaided Private Schools of Rajasthan v. Union of India, (2012) 6 SCC 1;
TMA Pai Foundation v. State of Karnataka, (2002) 8 SCC 481; AIR 2003 SC 355; PA
Inamdar v. State of Maharashtra AIR 2005 SC 3226
75
M/s Rajah Sir Sannamalai Chettiar Foundation V. The Director of income Tax
[Exemptions] ITA NO. 2927/Mds./2010
76
St. Lawrence Education Society [Regd] and Anr. V. Commissioner of Income Tax
Delhi [Central] and Anr. The Baptist Education Society and Anr. V. Chief Commissioner
of Income Tax reported in [2011] 197 TAXMAN504 [Delhi]
77
Kanga and Palkhivala, supra p. 532
78
IRC v. Peebleshire Nursing Association ITC 335,352 ; IRC v. Society for Relief for
Widows and Orphans of Medieval Men II TC 1, 22.
16
Income Tax Benefits for Third Sector Organizations in India and Bangladesh...

the tax exemption law. By and large, the textual interpretation conforms to the tax
policy of generating resources. Circumstances in decided cases point out the difficulty
in bifurcation between religious and non-religious acts, and between business and
charity, especially when such acts are intertwined or mutually related. In Bangladesh,
because of the flexibility involved in the words general public utility, the scope of
tax exemption is determined on the basis of objective factors that tax exemption is
an exception and tax collection is the general rule.
The grounds of tax benefits
1. Income from the property of the TSOs
Under Rule 1 of Part A of Schedule Six attached to Section 44 (1) of the
Bangladesh Income Tax manual, 1984, at present, the tax exemption is confined to
income derived from housing property, and not property in general as provided
earlier to the amendment in 2002. Any income derived from [house property] held
under trust or other legal obligation wholly for religious or charitable purposes,
and in the case of 3[house property] so held in part only for such purposes, the
income applied, or finally set apart for application, thereto is not to be regarded as
taxable income. The change brought in 2002 has kept the major chunk of TSO
income under tax net. There is also an explanation that the paragraph is not applicable
to NGOs registered under the NGO Affairs Bureau. According to Leo Irish and
Karla Simon, the special rule about housing property is swallowed up by the general
exemption provided under Clause (2) and (3) of Rule 1. These clauses exclude
from taxation, the income applied or deemed to have been applied to charitable or
religious purposes. But Irish and Karla note that in practice NGOs pay tax for the
income they derived from business activities, but are under no obligation to pay tax
when the surplus is used for charitable or religious purpose.
In contrast, section 11 of the Indian Income tax Act provides that the income
derived from property held under trust wholly for charitable or religious purposes,
to the extent that such income is applied to such purposes in India is not to be
included in the total taxable income. Where the income is derived from property
partly held for such purpose, the income finally applied for such purpose is not to
be taxed if the trust had been created prior to 1961. Income derived from property
held for charitable purpose which tends to promote international welfare in which
India is interested is also exempt from tax.
In both the jurisdictions, the above benefit is not available if the income of
private religious trust does not enure for the benefit of public. Indian law additionally
provides that caste or community based discriminations in conferring of benefits or
private or family aggrandizement disentitle the tax exemption.

17
KIIT Journal of Law and Society (Volume -5: No-1)

2. Exemption from taxation of voluntary contribution received for charitable


or religious purpose
Under Rule 1 of Part A of Schedule Six of Bangladesh Manual “Any income
of a religious or charitable institution derived from voluntary contributions and
applicable solely to religious or charitable purposes” shall not be included in the
taxable income.
According to section 12 of the Indian Income Tax Act, any voluntary
contributions received by a trust created wholly for charitable or religious purposes
or by an institution established wholly for such purposes shall be deemed to be the
income of such trusts or institutions and as per section 11 are not to be included in
the taxable income. However, in both the countries, the above benefit is not available
if the income of private religious trust does not enure for the benefit of public.
3. Exemption to micro credit organizations
It is a unique feature of Bangladesh law that any income derived from the
operation of micro credit by a non-government organization registered under the
NGO Affairs Bureau is outside the orbit of taxable income. This clause was inserted
in 2002 to support the wide spread micro credit organizations. In India, this is
covered under the benefit to cooperative societies.
4. Tax deduction to donors
Sharp contrast between the two jurisdictions can be found in this sphere.
Bangladesh law does not allow deduction of donations made by donors to charitable
or religious institutions as a general rule. But Part B of the Sixth Schedule provides
for some exceptions subject to a ceiling limit of ten million taka.79 These include
any sum paid by an assessee to a charitable hospital,80 to an organization set up for
the welfare of the retarded people,81 to the Zakat Fund or charitable fund established
by Zakat Fund, 82to any socio-economic or cultural development institution
established in Bangladesh by the Agha Khan Development Network, 83 to a
philanthropic or educational institutions approved by the Government for the said
purpose,84 and to a national level institution set up in memory of the liberation war
or in the memory of Father of the Nation.85 The 100 % tax deduction available prior

79
Section 44 (2) and (3) of the Bangladesh Income tax Ordinance, 1984
80
Rule 11A of Part B Sixth Schedule Bangladesh Income tax Ordinance, 1984
81
Rule 11B
82
Rule 13
83
Rule 21
84
Rule 22
85
Rules 24 and 25
18
Income Tax Benefits for Third Sector Organizations in India and Bangladesh...

to 1992 was withdrawn without much discussion on grounds of rampant abuse.86


This withdrawal had adverse effect upon the TSO finance as it denied incentive to
donors.87
While pro-revenue approach is implicit in the legislative policy, judicial
application of law has also furthered the legislative spirit as can be gathered from
Islamic Bank case.88 The case involved claim for tax deduction to the donation
made by the Islamic bank to Zakat. Zakat is one of the five pillars of charity under
Islam, and is in the form of annual charge that the owner of commodity pays to the
state for possession of it for one lunar year. The Islamic Bank contested zakat and
claimed tax exemption under section 29 (xxvii) as expenditure for the purpose of
business or profession of the assessee. The Bangladesh Supreme Court unanimously
rejected the claim of the petitioner and held that zakat is payable as obligatory duty
by an adult and free Muslim with a sound mind and owning the wealth, whose
value is growing, for one lunar year. Since the bank was artificial legal person, not
owning the wealth but dealing with the wealth of others, the bank was not under a
duty to pay zakat, and not entitled to exemption.
Under the Indian law Section 80G is a popular omnibus clause providing for
deduction in respect of donations made by assessees to various National and State
Funds which aim to bring reliefs in circumstances of natural calamities, to assist
national efforts to relieve from illness, to promote communal harmony, sports, culture,
education, technology, family planning, urban and rural housing and to support
NPVO activates for charitable and religious purposes. The deduction is to the extent
of 100% or 50 % of such donations depending upon categorization under the law.
The above dichotomy between rigid pro-revenue approach and liberal incentives
to donors is appearing in economies having different levels of development. While
India has less liberal approach to support the donors as compared to developed
countries like the US, it is no surprise that Bangladesh has hesitation in extending
full support to the donors. In fact, incentive to donor along with tax exemption to
charities means double burden on the state in relation to same transaction. It is on
the basis of more realistic analysis of cost and benefit that the extent of state support
to donors is to be planned.

86
World Bank Report, Pursuing the Common Goals 1996 p.51 cited by Leon Irish and
Karla Simon, NGO Scoping Study
87
Leon Irish and Karla Simon, NGO Scoping Study
88
Islami Bank Bangladesh Ltd v. Commissioner of income Tax, (2009) 29 BLD AD 139;
the pro-revenue approach is not followed when the tax exemption claim is genuine, and
artificially denied by extraneous reasoning and in violation of the rule against unjust
enrichment. See Sajida Foundation v. Post Office Saving Bank, 2011 BLD (HCD) 31, p.
470
19
KIIT Journal of Law and Society (Volume -5: No-1)

5. Tax exemption to cooperative societies


Cooperative societies are the live veins of rural economy, and play instrumental
role in poverty alleviation and assistance to the farmers, workers and fishermen.
Both Bangladesh and India have experimented with this instrument for
revolutionizing the rural economy. Supporting the cooperative societies through
tax exemption is of vital importance in both the systems.
According to section 47 (1) of the Bangladesh Income Tax ordinance, 1984,
tax shall not be payable by a co-operative society in respect of the following
categories of income: firstly, so much of its income as is derived from transaction
with members by involving in sale of goods, lending of money or lease of premises;
secondly, entire income from business carried by engaging in agriculture or rural
credit, cottage industry, marketing of agricultural produce of its members, purchase
of agricultural inputs for use by members, and processing of agricultural produce;
thirdly, income from interest and dividends derived from its investments with any
other co-operative society; and fourthly, income derived from the letting of go-
downs or warehouses to its members.
In India section 80 P of the Income Tax Act, 1961 has the policy of allowing
deduction of profits and gains of business made by cooperative societies either
wholly or partly depending on the categorization. In the first category there are
cooperative societies engaged in (i) banking business or providing credit facilities
to its members; (ii) cottage industry ; (iii)marketing of agricultural products grown
by the members ; (iv) purchase of agricultural implements, seeds, livestock or other
article intended for agriculture for the purpose of supplying them to its members;
(v) the processing without aid of power, of the agricultural produce of its members;
(vi) the collective disposal of the labour of its members; and (vii) fishing or allied
activities such as catching, curing, processing, preserving, marketing and purchase
of necessary materials for supplying them to its members. The whole of the amount
of profits and gains of business attributed to any other or more of such activities
engaged by this category of cooperative societies shall be deducted while computing
the total income of the assessee, which is a cooperative society.
Similar features in the two jurisdictions vindicate the hypothesis that tax
exemption law serves as an instrument to support community effort to overcome
economic problems that challenge the society. The inclination for social inclusion
policy of empowerment is discernible here. Extending the same logic, tax deduction
for donation to associations implementing the programs of environmental protection
and rural development, to khadi and village industries, and to research and scientific
institutions has great contribution towards social capacity building.

20
Income Tax Benefits for Third Sector Organizations in India and Bangladesh...

Conclusions
In the developing and least developed countries of South Asia, adoption of
appropriate tax exemption policy towards the charitable or religious institutions
and trusts and other voluntary agencies has great ramification upon the community
effort to effectively tackle the socio-economic problems and cultural needs. In this
process, support to human rights, welfare, secularism, ecology, and social justice
link the TSOs with societal voluntarism and policy of social inclusion of the
marginalized sections. Constitutional philosophy, considerations of social help, and
ethics of TSO law look for balancing between too rigid a fiscal policy of pro-
revenue orientation and highly liberalized package of tax exemption to TSOs. The
paths chosen by Bangladesh and India, in spite of apparent similarity, have
divergence. Comparatively, Indian law is more TSO friendly than the Bangladesh
counterpart. While the definition of charitable purpose in Bangladesh is kept almost
frozen or fossilized, the denial of deduction to donors is like injuring the goose that
lays golden egg. For a robust functioning of non profit voluntary organizations, it
needs hardly to be told that liberal tax exemption law is an imperative. But the
considerations of political economy decide the contours of legal policy, sometimes
on different plane.
The paper notes that in both the systems, law supports genuine acts of charity
which help the poor and the sick, promote education, uphold social interests in acts
of general public utility, ecology, social harmony and accords fair treatment to all
religions. The trend in legal development to expand the regime of liberal tax benefit
supports the social service functions of TSOs. The social impacts of this phenomenon
and civil society’s response thereto have shown positive signs of state-society
partnership in building the social capital. The South Asian model of fiscal policy on
philanthropy hints that while taxation shall not destroy the spirit of giving, the
policy of tax exemption shall not dry up the springs of public revenue.

21
KIIT Journal of Law and Society (Volume -5: No-1)

AMENDING THE LAND ACQUISITION LAW: THE


PARADOX OF LEAVING THE BRITISH LEGACY OF
“EMINENT DOMAIN” PRINCIPLE
Raju KD* and Roopa KL**

Abstract
The present Government is promulgated an Ordinance to further amend the
existing Right to Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act 2013 came into effect on September 27, 2013.
The Act replaced the 120 year old Land Acquisition Act, 1894 enacted by the
British Government during the colonial period. The new Act was passed in the
background of large number of conflicts involving land acquisition in India in the
recent past. Some of the States like West Bengal witnessed a violent protest against
acquisition of land for industrial development both in Nandigram and Singur. In
the backdrop of large public discontent and protest against the manner in which
land is acquired for “public purpose” for developmental projects, this paper seeks
to enquire the approach and objective of the existing law and whether the law
making for such purposes has to be different, considering social cost of such laws
in India. In India, right to property is not a fundamental right, does it mean
whether the state can take away the property without sufficient or adequate
compensation. Whether the private right to property is supreme or developmental
purposes has to be given importance? Whether state should take a sociological
approach or use the iron hands of land acquisition laws?
The present paper examines the Right to Fair Compensation and Transparency
in Land Acquisition, Rehabilitation and Resettlement Act 2013 v is-à-vis the social
problems arising out of land acquisition and the lacunae in the present legislation.
This paper argues that a legal approach with contemporary social realities to be
taken into consideration rather than a colonial approach in land acquisition laws
in India. Further amendments are suggested as land acquisition as a social, political
and a legal problem. It also argues that the present Ordinance is not going to
fulfil gap in the 2013 Act and a pragmatic approach is required on land acquisition
in India suppressing the “eminent domain” principle.
Key Words: Land acquisition laws in India, Social cost, Fair compensation,
Rehabilitation and re-settlement.

* B.Sc, LL.M (MGU), M.Phil, Ph.D (JNU), Fulbright Fellow, Microsoft Outstanding
Young Faculty Fellow. Associate Professor, RGSOIPL, IIT Kharagpur.
** M.A, LL.B, M.Phil, Ph.D (JNU).
22
Amending the Land Acquisition Law: The Paradox of Leaving the British ...

Introduction
The right of sovereign to take away private property is well established from
time immemorial period.1 Two maxims justify it, they are: Salus populi est suprema
lex (regard for the public welfare is the highest law), the second one is necessitas
publica major est quam privata (public necessity is greater than private necessity).2
The famous thinkers viewed the concept of property in a different way. According
to Grotius3 and Pufendorf, property was both natural and conventional. Both of
them never recognised that the rights of property claimed by its owners are absolute
and involve definite social responsibilities. Blackstone declared that “so great is the
regime of the law for private property that it will not authorise the land violation if
it - no, not even for the general good of the whole.”4
Hugo Grotius is credited with propounding of the doctrine of “eminent domain”
which advocates that public rights will take precedence over private rights. Grotius
sets two conditions on the exercise of the power of eminent domain: the first requisite
is public advantage and secondly compensation is to be paid from the public funds,
if possible, to the one who has lost his right. Both the conditions were inserted by
the British Government in land acquisition laws.5
The history of land acquisition in India goes back to the Bengal Regulation I of
1824.6 Special enactments were made for acquiring land for developing mines through
Land Acquisition (Mines) Act 1885. British enactment of the Land Acquisition Act,
1894 was amended in 1984 in the pose independent India and inserted Sections 11-
A, 28-A to smoothen the acquisition process. The Act is a colonial hangover with a
power to suppress the rights of land owners and acquire property for public purposes
without adequate compensation. Section 3(f) of the Act defines public purpose as
general interest of the community as opposed to the private interest of an individual.
Under S.6, a declaration to be made that the land required for public purpose.

1
Moris R. Cohen, “Property and Sovereignty,” Cornell Law Quarterly, vol.13(1), 2014, pp.8-30.
2
The Law Commission of India 10th Report, Report on the Law of Acquisition and
Requisitioning of Land, 1958.
3
http://plato.stanford.edu/entries/grotius/, visited on 19.12.2014.
4
K.T. Plantation Pvt. Ltd. & Anr. v. State Of Karnataka on 9 August, 2011, para.83&84.
5
Eminent domain is a right inherent in every sovereign to take and appropriate property
belonging to citizens for public use. It means that the sovereign is entitled to reassert its
dominion over any portion of the soil of the State including private property without the
owner’s consent provided that such assertion is on account of public exigency and for
public good. Indian courts are adopted this doctrine in a number of cases. See Dwarakadas
Shrinivas v. Sholapur Spg. & Wvg. Co.Ltd., AIR 1954 S.C. 119 and Jilubhai Nanbhai
Khachar v. State of Gujarat, 1995(Supp).(1) SCC 596. Hindusthan Petroleum Corporation
Limited v. Darius Shaper, 2005 (7) SCC 627, and Mahendar Pal v. State of Haryana,
(2009) 14 SCC 281.
6
Law Commission of India, 10th Report, Law of Acquisition and Requisition in India, 1958.
23
KIIT Journal of Law and Society (Volume -5: No-1)

Though the public purpose criteria have been met, state cannot acquire the
property without comply with the mandate of Sections 4,7 5-A8 and 69 of the Act.10
It can be understood that land acquisition for public purposes are justified, but the
new model of industrial development and land acquisition for “other purposes”
were violently opposed by masses all over the country. People perceived that losing
their land without adequate compensation is an anti-people activity by the State. It
has raised a wider question of individual property rights over State sovereign rights.
The Supreme Court of India has also expressed the opinion that “the law has been
drafted with scant regard for the welfare of the common man,”11 a Bench headed by
Justices G S Singhvi and H L Dattu which prompted the government to speed up
the repeal of the 120 years archaic law.
This paper attempts to examine the land acquisition law in India and its
justification in the light of severe social conflict and problems highlighted in the
recent past in some of the states like West Bengal. Second part of this study examines
constitutional provisions dealing with property and the third part analyses important
judicial opinions on land acquisition in India. The fourth part discusses the socio
economic impact of land acquisition and the fifth part specifically looked into the
Singur Land Rehabilitation and Development Act, 2011. The sixth part of this
paper analyses in detail the pros and cons of the new Act; Right to Fair Compensation
and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013
and summarises the main provisions of the Act and points out the deficiencies and
scope for further amendment of the Act. It is argued that the recent Ordinance to
amend the Act is not sufficient and comprehensive amendments are required to
solve many problems of the common man and the industry as well.
Constitutional Provisions and Land Acquisition Laws
The first amendment to the constitution was made in 1951 to insert Article 31-
A and Article 31-B.12 Article 31-A of the Constitution of India stipulates payment

7
Publication of Preliminary Notification.
8
Hearing of objections.
9
Declaration that land acquired for a public purpose.
10
C.Padmavathi v. District Collector, Chittoor, W.P.No.5926 of 2007 (A.P), judgment
dated 27 June 2011.
11
Indian Express, August 5, 2011.
12
Article 31 B of the Indian Constitution provides that Without prejudice to the generality
of the provisions contained in article 31A, none of the Acts and Regulations specified in
the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever
to have become void, on the ground that such Act, Regulation or provision is inconsistent
with, or takes away or abridges any of the rights conferred by, any provisions of this Part,
and notwithstanding any judgment, decree or order of any court or Tribunal to the contrary,
each of the said Acts and Regulations shall, subject to the power of any competent
Legislature to repeal or amend it, continue in force.]
24
Amending the Land Acquisition Law: The Paradox of Leaving the British ...

of compensation at the rate which shall not be less than the market value. The 1955
amendment inserted Article 31(2-A) enabled the state to deprive a property by
passing a law in appropriate cases. The provisions for compensation of acquisition
are included in entry 33 of the Union List and Entry 36 of the State List and Entry
42 of the Concurrent List. This anomaly has been removed by Seventh Amendment
to the Constitution in 1956. Now the states and the Union are empowered to enact
laws relating to acquisition of property. The acquisition of property is subject to the
following conditions:
i. Acquisition should be for the public purpose; and
ii. The enacted law for acquisition of property should provide for compensation
and rules and the manner in which the compensation is to be determined and
disbursed.
The public purpose is not the subjective satisfaction of the government. The
existence of public purpose is a necessary condition and such facts must be
objectively established by the decision of the Supreme Court of India in State of
West Bengal v. Bella Banerjee.13 In order to overcome the decision of the SC, 4th
amendment was made to Article 31 of the Constitution in 1955. In the Bank
Nationalisation case,14 the court held that the Constitution guarantees compensation
which is equal to the value of the property acquired. But both in Bella Banerjee
and State of West Bengal v. Subodh Gopal Bose15 cases, the court supported the
“eminent domain” principle and confirmed the validity Article 31(1) and 31(2) of
the Constitution.16
The validity of Articles 19(1)(f)17 and (g) was also the subject matter of the
case in Golaknath v. State of Punjab.18 The court held that the Parliament could not
take away or abridge the Fundamental Rights. In this case, a large portion of the
lands of Golak Nath family was declared surplus under the Punjab Security of
Land Tenures Act, 1953. They challenged the Act on the grounds that it denied their
Constitutional rights to acquire and hold property and practice any profession.
13
AIR 1954 SC 170.
14
Rustom Cavasjee Cooper v. Union of India, (1970) 1 SCC 248: 1970 AIR 564: 1970
SCR (3) 530.
15
AIR 1954 SC 92.
16
The eminent domain principle is popularly known as the power of the State to seize
property without the owner’s consent. http://www.columbia.edu/cu/cssn/expansion/
infosheets/eminentdomain.pdf, visited on 25.11.2014.
17
Before the amendment of the provision, the provision was “Article 19(1)(f) stated that
every person had a right to acquire any property by lawful means, hold it as his own and
dispose of it freely, limited only by reasonable restrictions to serve the exigencies of
public welfare any other restrictions that may be imposed by the State to protect interests
of Scheduled Tribes.”
18
AIR 1967 SC 1643.
25
KIIT Journal of Law and Society (Volume -5: No-1)

The constitutionality of the above amendment was also the subject matter in the
case of His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala &
Another19 which overruled the principles laid down in Gokalnath’s case and held
that a Constitutional amendment could not alter the basic structure of the
Constitution.
On the other hand, the immediate consequence of Kesavananda Bharati case
was that right to property as a fundamental right [Article 19(1)(f)] has been taken
away by the 1978 (44th) amendment to the Constitution and moved out of Part III
and included as Article 300 (A), made it right to property as a legal right. 20 The
change of private property status from fundamental right to a mere legal right
changed the entire feature of acquisition laws as well. Land acquisition law was
used severely during industrialization of the country during the 1970s and 80s.
After the economic liberalization in 1991, the SC tries to point out the importance
of distribution of wealth according to Article 3921 of the Constitution.22 The rapid
industrialization through special economic zones (SEZs) throughout the country
and acquisition of lands for bigger projects met lot of protests from different groups
find it active political support. The opposition from farmers in Nandigram and
Singur (both the places are in the State of West Bengal) against land acquisitions
can be seen only as a symbol of aspirations of the masses to regain the right to
property as a fundamental right. The social movements against large scale acquisition
of forest lands for mining in Odisha also find stiff opposition from tribal communities
those who basically depend on these natural resources for their livelihood.
Jurisprudence on Land Acquisitions
Article 31(1), 31(2) and adding of Article 31(A) and 31(B) give the scheme of
deprivation of property and conditions under which it can be done. Under Article
31(1) the state cannot make laws to deprive a person of his property without
complying with Article 31(2).23 Article 31(2) provides for adequate compensation
in case of such acquisition under Article 31(1). It also provides that the quantity of
compensation cannot be questioned on the ground that it is inadequate. This provision
confers arbitrary power on the state to fix compensation in case of property acquired
19
(1973) 4 SCC 225.
20
No person shall be deprived of his property save by authority of law.
21
Article 39 provides that “Certain principles of policy to be followed by the State: The
State shall, in particular, direct its policy towards securing: (b) that the ownership and
control of the material resources of the community are so distributed as best to subserve
the common good.”
22
Indore Vikas Pradhikaran v. Pure Industrial Coke & Chemicals Ltd., (2007) 8 SCC
705.
23
State of W.B v. Subodh Gopal, (1954) SCR 587; State of Madras v. Namasivaya
Muralidar, (1964) 6 SCR 35.
26
Amending the Land Acquisition Law: The Paradox of Leaving the British ...

or requisitioned. Non-justifiability of the provision made it as a draconian law to


deprive property of its own citizens.
The SC in a recent judgment held that the property acquired for public purposes
cannot be re-allotted for private purposes.24 A bench of JJ. G.S Singhvi and A.K
Ganguly observed that “It was a crude attempt by the concerned political
functionaries of the State to legalise what had already been declared illegal by this
Court.” Court has taken an extreme step in the background of land mafia playing a
key role in cities like Jaipur.25
In yet another case in Raghbir Singh Sehrawat v. State of Haryana,26 the SC
over ruled the High Court decision on a land acquisition case from Haryana. The
petitioner argued that it was not only agricultural land but also his sole source of
income for his family. The Court referring to a report by the National Commission
on Farmers, the bench comprises of Justices G.S. Singhvi and S.J. Mukhopadhyay,
held that acquisition of agricultural land on the pretext of industrial development
would necessarily have an adverse impact on the availability of food in the future.
In these cases, the court taken note of the social conditions of poor farmers and
delivered the judgments accordingly.
In the case of a farm land acquisition in Greater Noida, National Capital Region,
the court stressed that the land acquisition law had to be seen in the context of the
right to life and observed that “as judges, we can’t close our eyes. We have a duty
to perform. Land is not being acquired for building barrages, canals or roads. What
are coming up are malls, hotels and townships where the common man has no
access.”27 The pertinent question is whether land for malls are necessary to be
acquired within the purview of “public purpose” under the land acquisition law.
The courts in most of the cases held that in exercise of its power of eminent
domain,28 the State can compulsorily acquire land of the private persons but this

24
Daily News & Analysis, July 17, 2011.
25
Jaipur Development Authority v. Vijay Kumar Data, 2011 STPL (Web) 609 SC.
26
(2012) 1 SCC 792.
27
India Today, Their Crusading Lordships, November 11, 2011 and also see http://
www.somethingaboutthelaw.com/2011/12/07/recent-trends-in-land-acquisition/, last
visited on 22.10.2012.
28
The term “eminent domain” was taken from the legal treatise De Jure Belli et Pacis,
written by the Dutch jurist Hugo Grotius in 1625, which used the term dominium eminens
(Latin for supreme lordship) and described the power as follows:
“... The property of subjects is under the eminent domain of the state, so that the state
or he who acts for it may use and even alienate and destroy such property, not only in the
case of extreme necessity, in which even private persons have a right over the property of
others, but for ends of public utility, to which ends those who founded civil society must
be supposed to have intended that private ends should give way. But it is to be added that
when this is done the state is bound to make good the loss to those who lose their property.”
27
KIIT Journal of Law and Society (Volume -5: No-1)

proposition cannot be over-stretched to legitimize a patently illegal and fraudulent


exercise to favour private persons and thus deprive the landowners of their
constitutional right to property.
Socio Economic Effect of Land Acquisition
The Britishers used the draconian law29 in Bengal and other presidencies for
acquiring land for public purposes. It was not a huge concern before independence
because it was used sparingly.30 The problems of land acquisitions are closely
connected with land reforms started in many states of India after independence.
West Bengal was the first state to start land reforms in 1955 through Land Reforms
Act of 1955. The second State was Kerala, which enacted Land Reforms Act in
1963.31 In 2007, large-scale protests were seen in the state of West Bengal against
land acquisition for an SEZ in 10000 acres for a chemical hub in Nandigram where
14 villages killed and more than 70 people were injured as a consequence of police
firing.32 Acquisitions of peasant lands were largely opposed. This movement can be
seen in the background of empowerment of marginalized, rural artisans and labourers
in the state by different social and political groups. The village based rural
development was successfully implemented in the state of West Bengal for a long
period of time which raised the level of consciousness among the masses which
enabled them to participate in the local administration. Sudden policy changes
towards industrialisation by the left government were viewed by the farmers with
suspicion and resulted in the political fall of the left government from power after
34 long years.
Land reforms in the state were not conclusive even after many years of efforts
by the government. In this socio-political background, the farmers were reluctant
to part with their land for industrial development. Mostly farmers rely on their
single crop paddy for their subsistence throughout the year. It is also interesting to
note that the state has acquired fertile agricultural lands for setting up industries
rather using large wasteland available in the state which is not suitable for cultivation.
Proper socio economic studies have not been conducted before massive acquisitions
of agricultural land throughout the state. The economic benefit of such acquisitions
are never projected or studied properly.
The economic empowerment of local people is important for industrial harmony
in any area. Mostly, local populations were denied employment in establishments

29
Bengal Regulation VIII of 1885.
30
Law Commission of India, 10th Report, 1958, http://lawcommissionofindia.nic.in/1-
50/report10.pdf, visited on 27.01.2015.
31
http://www.kerala.gov.in/docs/pdf/land_reforms.pdf, visited on 30.01.2015.
32
Times of India, March 14, 2007.
28
Amending the Land Acquisition Law: The Paradox of Leaving the British ...

set up in their acquired agricultural land. These are also added to the resentment
among the masses in villages. Civil society organisations played a crucial role in all
agitations supported by partisan politicians. The displacement of people due to
land acquisitions are never attended properly. Losing principal means of production
and consequent poverty were not dealt by the state before any acquisitions. Large-
scale acquisitions can be found on both sides of Kolkata Mumbai Road for setting
up large industries. Some of them are started production and some of them have
never set up of their units. Most importantly, the land losers are marginal and small
farmers. Many studies have revealed that such farmers became landless after the
acquisitions. They were never compensated adequately to purchase the same portion
of land.33 The activities of the district administration in acquisition and post-
acquisition period such as delay in payment is also one of the main reasons for
protest against land acquisitions in many states. In such situations, resentment and
frustration is obvious from the farmers which will be a stumbling block in further
acquisition of agriculture lands for industrial purposes.
The Singur agitation started in 2006 against land acquisition for setting up
Tata-Nano project of Tata Motors Limited. The State Government intended to acquire
1000 acres of agricultural land as a part of their poll policy of industrialization in
the state. It was reported that there were about 7.4 million landless people in the
State.34 Singur became a focal point of agitation by civil society organizations
supported mainly by the political party later came to power in the State. This agitation
changed the history as it leads to ousting 34 year old ruling communist government
of the state. Another important aspect noticed in the agitation is that the massive
participation of women volunteers in the movement. They prevented officers from
entering the village to serve the notice and complete the proceedings. It was a political
battle rather than a socio-economic issue which directly affected the farmers in the
area. These areas are particularly benefited by land reforms in the earlier period.
The same farmers agitated against a reverse process, where land was being acquired
for industrialization. Later on the left government was fallen on the uprising of
political powers in the state and the Nano car factory was shifted to more industrial
friendly state like Gujarat.35 The socio, economic and political fallout of the incident
is not the subject of this paper, but every state requires industrialization to meet its
primary economic goals and welfare of the people in the state. But the concept of
social justice deal with all aspect of human life. According to Harold J.Lasky, “that

33
Abijit Guha, “Land Acquisition in a West Bengal District,” Economic and Political
Weekly, Vol. 39, No. 42 (Oct. 16-22, 2004), pp. 4620-4623.
34
Parthasarathy Banerjee, “Land Acquisition and Peasant Resistance at Singur,” Economic
and Political Weekly, Vol. 41, No. 46 (Nov. 18-24, 2006), pp. 4718-4720.
35
http://www.bbc.co.uk/news/business-17156917, visited on 01.09.2013.
29
KIIT Journal of Law and Society (Volume -5: No-1)

the more equal are the social rights of citizens, the more likely they are to be able to
utilize their freedom in realms worthy of exploitation.” The purpose of social justice
is to be maintain social equilibrium in the society.36
The Singur Land Rehabilitation and Development Act, 2011
The new governments in West Bengal come up with an Act in 2011 in order to
take back land from Tata Motors Ltd. and intends to return it to the original owners.
The object and statement of reason of the Act states that “Several owners of the
land/farmers have protested against acquisition against their wishes and have not
accepted any compensation and on having realised that there is no scope of generation
of employment have been clamouring for return of their land, staging agitations in
that area endangering safety and security of the area which unless properly handled
urgently, serious law and order problems is likely to develop.” The State government
considered it for the public interest to invalidate the acquisition and return it to the
unwilling owners for further socio-economic interest of the state. All these grounds
are out of the concern of Land Acquisition Act, 1894 and there is no provision in
the Act for taking back and returning it to the original owner if the project is not
materialised.
Tata Motors started their legal battle in the Kolkara High Court and lost it
before a single bench. But a Division Bench of the Kolkata High Court held that the
Act is unconstitutional.37 The court observed that there is no provision for payment
of compensation in the Act and the State cannot return the land once acquired.
Court held that “It appears to us that there is clear and direct inconsistency between
the Land Acquisition Act 1894 and the Singur Land Rehabilitation and Development
Act, 2011, and, in our considered opinion, such inconsistency is absolutely
irreconcilable.”38 The battle is continuing in the SC39 and the legal position is clear
as the SC has held in many cases that once the acquisition is done, there is no
chance of return it to the original owners, hence, there is every chance to invalidate
the Act passed by West Bengal Government.40 It was reported that in 2012 there
was police firing against anti-land acquisition agitators in the village Dubrajpur of
West Bengal’s Birbhum district as well.41 It shows that whoever in power is always
going to be in the hangover of the “eminent domain” doctrine as far as land acquisition
is concerned.
36
h t t p : / / w w w. s u p r e m e c o u r t o f i n d i a . n i c . i n / s p e e c h e s / s p e e c h e s _ 2 0 0 7 /
jamia_millia_islamia_speech_13_nov.pdf, visited on 30.01.2015.
37
The Hindu Daily, June 22, 2012.
38
Tata Motors & Anr. v. The State of West Bengal & Ors, 2. A.S.T. No. 1863 of 2011.
39
The Next final hearing of the case in SC is January 2015.
40
But the new Act contains a provision for return of the non-utilized land to the land
owners after five years of acquisition.
41
The New Indian Express, November 13, 2012.
30
Amending the Land Acquisition Law: The Paradox of Leaving the British ...

Right to Fair Compensation and Transparency in Land Acquisition,


Rehabilitation and Resettlement Act 201342
In the light of all these conflicts and social agitations in the country, it was felt
that now the time to amend the old law of 1894 and the first version of the Bill
appeared in 2007. Later on it was placed before the Parliament as the Land
Acquisition Rehabilitation and Resettlement Bill 2011,43 renamed as Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Bill 2012. And finally presented it before the Parliament in 2013.44
The new Act was the amalgamated version of Land Acquisition Amendment Bill
2007 and Rehabilitation and Resettlement Bill 2007. Rehabilitation and re-settlement
is one of the prime objectives of the repeal of the old Act. The Act also intends to
include acquisition for companies restricted to public useful purposes.
1. Public purpose Defined
The old created an expansive definition of public purpose based on the
assumption that State is the main sponsor of industrial development and it requires
land acquisition powers. The new law was touted as the panacea to the evils the old
Act perpetuated, the broad discretionary powers to State authorities for acquiring
land for public purpose.45
Section 3(za) defines public purpose as listed in Section 2(l):
1. Land for strategic purposes relating to armed forces or state police;
2. Land for railways, ports, power, irrigation, public sector companies or
corporations; Infrastructure projects including activities of Department of
Economic Affairs, projects involving all areas of agriculture, government
educational institutions, sports, healthcare, tourism, transportation or space
programme
3. Land for project affected people; Project for housing of such specified
income groups
4. Land for planned development of villagers, land for residential purposes
for the weaker sections and land for government institutions.
5. Residential purposes to the poor or landless or persons affected by natural
calamities or persons displaced due to the implementation of any schemes
6. Land for PPP projects for the production of public goods or the provision
of public services;
42
The name of the proposed Act is changing from time to time and no finality to the
names until it is passed.
43
www.prsindia.org, visited 18.12.2014.
44
India Today August 29, 2013.
45
Broadmind.national interest.in, September 12, 2013, visited on 30.12.2014.
31
KIIT Journal of Law and Society (Volume -5: No-1)

7. Land in the public interest for private companies for the production of
goods for public or provision of public services provided consent of 80
per cent of the project affected people to be obtained through a prior
informed process.
2. The New Concept of Social Impact Assessment
By “social impacts” in other countries mean the consequences to human
populations of any public or private actions-that alter the ways in which people
live, work, play, relate to one another, organize to meet their needs and generally
cope as members of society. “The term also includes cultural impacts involving
changes to the norms, values, and beliefs that guide and rationalize their cognition
of themselves and their society.”46 The Environmental Impact Assessments (EIA)47
are known to the Indian legislators, but the concept of Social Impact Assessment
(SIA) is newly introduced in the Act. Social impacts are the impacts of industrial
and other developmental interventions on human environment.48 Every developmental
projects have an environmental, economic and social impacts on human population.
The social impact should focus on the people who benefits and who loses. The SIA
can help to take care of the divergent opinions of diverse groups and their interests
and ultimately the welfare of the affected population in general.49
Section 4 of the Act provides that if land is to be acquired for public purpose,
the Government should consult the Panchayat, Municipality or village level or ward
level of the affected area may carry out a SIA study within six months. It should be
available to the local authority concerned in the local language. The SIA must
contain the following information:
1. Whether the proposed acquisition serves the public purpose or not;
2. Estimation of families affected and number of people likely to be displaced;
3. Extend of lands, houses and other common properties affected by
acquisition;
4. Whether alternate places are considered and found not feasible;
5. Study of social impacts of the project, nature of cost to address the
displacement and benefits of the project;

46
US Department of Commerce, Guidelines and Principles for Social Impact Assessment,
1992. Available at http://www.nmfs.noaa.gov/sfa/social_impact_guide.htm, visited on
23.12.2014.
47
EIA Notification of the Ministry of Environment and Forests of 2006.
48
http://unpan1.un.org/intradoc/groups/public/documents/cgg/unpan026197.pdf, visited
on 23.12.2014.
49
Rabel J. Burdge and Frank Vanclay, “Social Impact Assessment: A Contribution to the
State of the Art Series,” vol.14, 1996, pp. 59-86 available at http://
www.hardystevenson.com/, 26.12.2014.
32
Amending the Land Acquisition Law: The Paradox of Leaving the British ...

6. Preparation of a SIA management plan;


The SIA should be carried out after a public hearing in the affected area after
giving adequate publicity about the hearing.50 The Government should constitute a
multidisciplinary expert group to assess the SIA study. The group must include:
(a) Two non-official social scientists
(b) Two representatives of Panchayat, Gram Sabha, Municipality;
(c) Two experts on rehabilitation;
(d) A technical expert in the subject relating to the project.
The expert group51 should evaluate the project and assess whether the project
serve any public purpose, social cost and adverse social impacts and make its
recommendation within two months from its date of constitution.
Whenever the government received a proposal for land acquisition, it must
examine whether it serves public purpose and acquisition is necessary as well. It
should assess the potential benefits and the public purpose, whether the public
purpose outweigh the social costs and adverse impact as determined in the SIA
report. The appropriate government should make it sure that such acquisition would
affect only minimum displacement of people, minimum disturbance to the
infrastructure, ecology and minimum adverse impact on the individuals affected.52
The only exemption to SIA study is invoking urgency provisions under Section
40.53 If the preliminary notification under S.11 is not issued within 12 months from
the date of appraisal of the SIA report submitted by the expert group under S.7, the
report shall deemed to have lapsed and a fresh SIA report has to be prepared.54
Special food security provision provides that no irrigated multi-cropped land
shall be acquired under the Act. Such land may be acquired only in exceptional
circumstances and as a last resort. If the multi-crop area is acquired, equivalent
area of cultivable land shall be developed for agricultural purposes. The only
exceptions are cases of projects relating to railways, highways, major district roads,
irrigation canals, power lines etc.55
3. Rehabilitation and Resettlement
After making a notification under S.11, the Administrator (District Collector)
for Rehabilitation and Resettlement shall conduct a survey of the affected families
and details which shall include:
50
Section 5.
51
Section 7.
52
Section 8(3).
53
Section 9.
54
Section 14.
55
Section 10.
33
KIIT Journal of Law and Society (Volume -5: No-1)

1. Particulars of immovable property of affected families;


2. Livelihoods lost in respect of land losers and landless whose livelihoods
are affected by acquisition.
3. List of public utilities, government buildings which are related to affected
families;
4. Details of amenities and infrastructural facilities which are affected and
details of common property resources being acquired.
According to the results of the survey, Administrator has to prepare a draft
Rehabilitation and Resettlement scheme which should be discussed and widely
publicised in the affected areas and concerned Gram Sabhas or Municipalities. 56
Public hearing has to be conducted in every Gram Sabha and municipality where
more than 25% of land belonging to that Gram Sabha or Municipality is being
acquired. The Collector should review the Rehabilitation and Resettlement Scheme
with the Rehabilitation and Resettlement Committee at the project level. Once the
Rehabilitation and Resettlement Scheme will be approved, it has to be made public
and available in the local language to the Panchayat, Municipality as the case may
be.
Now the Collector should make the award within one year of notification of
acquisition. The extended period in exceptional cases is six more months. If no
award is made within the period, the entire proceedings for the acquisition of the
land will lapse.57
The rehabilitation and resettlement will be implemented by Rehabilitation and
Resettlement Committee which includes:
(1) Representative of women residing in the affected area;
(2) Representative of SC/ST community residing in the area;
(3) Representative of a voluntary organisation;
(4) Representative of a nationalised bank;
(5) Land acquisition officer of the project;
(6) The chairpersons of the panchayats or municipalities located in the affected
area;
(7) Chairperson of the District Planning Committee;
(8) Member of the Parliament or Member of the Legislative Assembly;
(9) A representative of the Requiring Body;
(10) Administrator for Rehabilitation and Resettlement as the member Convenor.

56
Section 16.
57
Section 25.
34
Amending the Land Acquisition Law: The Paradox of Leaving the British ...

Adequate representation is given to local people and local self-governments in


the preparation of rehabilitation and re-settlement plan.
4. Fixation of Market Value and Price
The criteria for fixing the market value of the property are made. Market value
of the property is always higher than the value fixed under the Stamps Act, 1899.
Hence, a holistic approach is required than the rule book method of fixing market
value of the acquired property. The following criteria to be followed in fixing the
price:
1. The average sale price for similar type of land situated in the nearest
village and agreements to sell registered for similar type of area in the
near village immediately preceding three years;
2. Consented amount of compensation agreed for the acquisition of private
companies or public private partnership projects;
3. For determining the average sale price, one half of the total number of sale
deeds or the agreements to sell in which the highest sale price has been
mentioned to be taken into account;
4. If the Collector has of the opinion that any price paid as compensation for
land acquired under the provisions of this Act do not indicative of actual
prevailing market value, shall not be taken into consideration for fixing
the price;
5. If the value of the land is restricted under any special law, then the price
has to be determined on the market value to be multiplied by a factor
mentioned in the First Schedule to the Act;
6. If minority educational institution land has to be acquired, their
constitutional right to establish and administer educational institutions
should be protected;
7. Once the market value has been determined the Collector has to calculate
the amount of compensation;
8. In determining the amount of compensation the following factors to be
considered by the Collector:
(a) Market value determined under section 26 and award amount;
(b) Damage sustained by the person interested taking into account of the
standing crops and trees and any damages at the time of taking the land in
possession;
(c) If the affected person has to change his residence or place of business,
reasonable expenses and incidental to change of place;
(d) Any other ground which may be interest of equity, justice and beneficial to
the affected families.
35
KIIT Journal of Law and Society (Volume -5: No-1)

Once the collector determines the total compensation to be paid, a solatium


amount equivalent to 100% of the compensation amount to be paid. The solatium
amount will be paid in addition to the compensation payable to the affected people.
In addition to the amount, the Collector shall award an amount calculated at the
rate of 12% per annum on such market value for the period commencing on and
from the date of the publication of the notification of the SIA till the date of taking
possession of the land.
5. Rehabilitation and Resettlement Award
The Rehabilitation and Resettlement Award shall include:
(1) Rehabilitation and resettlement amount payable to the family;
(2) Bank account of the persons included in the rehabilitation and resettlement
award;
(3) Hose site and house to be allotted in case of displaced families;
(4) Particulars of land allotted to the displaced families;
(5) Particulars of subsistence allowance;
(6) Particulars of cattle shed and petty shops;
(7) Particulars of one-time amount to artisans and small traders;
(8) Details of mandatory employment opportunities to the affected families;
(9) Particulars of fishing rights;
(10) Particulars of annuity and other entitlements;
(11) Particulars of special provisions as to Scheduled Castes and Scheduled
Tribes.58
Once the resettlement area has been defined, the Collector shall ensure that the
minimum infrastructural facilities and basic minimum amenities specified in the
Third Schedule to be provided.59 If there is a consecutive second displacement due
to acquisition, the Collector has to pay an additional compensation equivalent to
that of the compensation determined under the Act. The emergency provision of
land acquisition is entrusted under S.40 of the Act which retains the power of the
State to not follow the entire procedures.
6. Special Provisions for Scheduled Caste and Scheduled Tribe (S.41)
The acquisition of land of Scheduled Caste and Scheduled Tribe has to be
acquired only done as a demonstrable last resort. Before acquisition, the consent of
the concerned Gram Sabha or the Panchayats or the autonomous District Councils
are mandatory. A development plan shall be prepared setting land rights and restoring

58
Section 31.
59
Section 32.
36
Amending the Land Acquisition Law: The Paradox of Leaving the British ...

titles of the land with the newly acquisitioned land for SC/ST displacers. The
development plan also should contain development of alternate fuel, fodder and
non-timber forest produce resources on non-forest lands within a period of five
years. One third of the compensation amount due should be paid as first instalment
and rest shall be after taking over the land. The affected families shall be resettled
preferably in the same Scheduled Area in a compact block. Any fishing rights of the
tribal or SC/STs should be granted the same rights in a river or pond or dam in the
affected area. If the community has to be resettled outside the district, an additional
25% benefit should be paid in terms of monetary benefit along with a one-time
entitlement of fifty thousand rupees.
7. Dispute Settlement and other Provisions
Chapter VIII of the Act provides for establishment of Land Acquisition
Rehabilitation and Re-Settlement Authority in every state for the speedy redressal
of disputes relating to land acquisition (S.51). Presently the regular courts are taking
long years for disposal of land acquisition cases. Setting up of such authority in
every district and mandatory use of alternate dispute resolution (ADR) mechanisms
such as conciliation, mediation and arbitration may help in speedy disposal of land
acquisition cases. Section 107 and 111 gives unbridled power to the State
Governments to make laws which is more beneficial than the Central law. But the
law of interpretation says that, if there is a repugnancy between the Central law and
the State law, Central law will prevail.60 The unutilized land for a period of five
years shall be returned to the original owner or to the Land Bank of the State.61
The most significant feature pointed out by the government is combining land
acquisition with rehabilitation and settlement. A social impact assessment provision
is included in the Act, a long-standing demand of civil society organisations. This
provision is well in accordance with international practices to make the entire process
transparent and community friendly. Social cost and benefit study will ensure that
the views and opinions of the affected will be heard in public hearings. These reports
will be examined by a group of experts including social scientist, representatives of
local bodies like Panchayats, technical experts related to the project. The Act offers
100 % solatium, compensation in tune of double the market value of the acquired
property in urban areas and 2-4 times the market value rate in rural areas. But the
precise amount to be fixed is given to respective state governments. Other offers in
the Act are civic amenities like roads, drinking water, electric connections, public
lighting, sanitation, schools, basic irrigation, playground for children, community

60
Zameer Ahmed Latifur Rehman ... v. State Of Maharashtra & Ors on 23 April, 2010,
Supreme Court.
61
Section 101.
37
KIIT Journal of Law and Society (Volume -5: No-1)

centres, etc.62 The reformulated Act also provides strict timelines for implementing
the rehabilitation programme and social impact assessment process within 35 months
of land acquisition notification. Full compensation will be paid within a period of
three months and rehabilitation package will be within six months. all these micro
provisions are a welcome step but previous experience shows that state
governments are going to implement these provisions according to their convenience
and hence results in bureaucratic hurdles in the path of implementation.
The Highlights of the Act
1. The Act for the first time linked land acquisition to be followed by rehabilitation
and re-settlement (R&R) of affected people by land acquisition.
2. Retrospective effect has been given to the Act where no compensation is paid
to the land acquisition so far.
3. The process of land acquisition involves a mandatory social impact assessment
in consultation with Gram Sabha in rural areas and equal bodies in urban
areas.
4. No SC/ST land will be acquired without the consent of Gram Sabhas.
5. Special provisions to protect the tribal land and biodiversity.
6. Multiple check and balance system in place at local, state and national level
along with judicial review.
7. A development plan to be prepared for the entire rehabilitation area.
8. Compensation to the owners of acquisition has been increased to four times in
rural areas and double in urban areas.
9. No one will be shifted out of the acquisitioned land without allotting an
alternative land and compensation is fully paid other than under emergency
provisions.
10. In case of acquisition for private companies, consent of 80 per cent of the
displaced people are required and for PPP projects the threshold is 70 per cent.
11. Food security provision is added to protect the interest of peasants.
12. The present Act provisions shall not be applicable to Special Economic Zones
Act, 2005, Atomic Energy Act, 1962, National Highways Act, 1956 and the
Railways Act, 1989.
13. The compensation to be paid by the Collector within two years from the date of
publication of the declaration of acquisition.
14. Land acquisition for urgent purposes to be paid additional 75 per cent of the

62
http://www.prsindia.org/uploads/media/Land%20and%20R%20and%20R/LARR%20-
%20Final%20Brief.pdf, visited on 01.09.2014.
38
Amending the Land Acquisition Law: The Paradox of Leaving the British ...

market value of the land.


15. Every R&R area to be provided with minimum infrastructural facilities such
as roads, drainage, provision for drinking water, gracing land, post office,
bank, public distribution facility etc.
16. The displaced families will get land for a house as per Indira Awas Yojana in
rural areas or a constructed house with 50 square meters plinth area in urban
areas.
17. One time assistance of Rs.50000/- for affected families or the option of choosing
schemes like mandatory employment in projects or a one-time payment of Rs.5
Lakh or Rs.2000/- per family for 20 years.
18. The Land Acquisition and Rehabilitation and Resettlement Authority shall be
established for settlement of disputes.
19. In every district land acquisition is restricted to a maximum of five per cent of
the irrigated multi crop land.
20. No income tax or stamp duty will be levied for the amount of compensation or
transfer of the land under the Act.
21. Return of non-utilized land to the original owner after five years of date of
acquisition or to the State Land Bank.
22. If the acquired land is sold to any third party for an appreciated value, 40% of
the appreciation has to be paid to the original owner.
The above stated provisions are in the right direction but the emergency
provision under the old act of 1894 is not done away with. This provision enables
the state governments to acquire property without public hearing and consent of the
land owner. It means that the draconian and British legacy of the doctrine of “eminent
domain” is still dominating the new act as well. Conceptually, the state cannot
dispense the power of compulsory acquisition because state is the custodian of
public interest. A complete ban on acquisition of agricultural land is practically not
possible, because the state has to acquire land for different emergency and public
purposes.
Shortcomings of the Act and Scope for Amendment
The deficiencies of the Act can be summarized as follows:
1. Fixing compensation according to the market price is practically not viable in
a country where there is no uniform law fixing price to properties. The market
price is fixed by land mafias and other external forces. It is not going to serve
any social justice or the efficient use of resources.
2. The new Act does not promote voluntary land transactions through peaceful
means.

39
KIIT Journal of Law and Society (Volume -5: No-1)

3. The compensation mechanism is inherently inefficient and unfair. Land for


land and rehabilitation package is always prone to litigation.
4. 80% of the people should consent for private projects land acquisition and
70% of the people should consent for PPP projects is an unrealistic estimations
which causes delay in land acquisition for private investment. This will stall
huge investment projects like South Korean Steel maker POSCO’s $12 billion
factory in Odisha. It is estimated that this single provision will increase the
project cost 40% more than the previous 5% cost allocated for land acquisition.
This consent criteria can be lowered to a reasonable level of 50% which will
serve the country to develop industrial hubs. The present Ordinance has removed
this hurdle to some extent.
5. The compensation package is four times more in rural and two times in the
urban area is going to hit the project cost prohibitively high when compare to
any other neighbouring countries.
6. The Act retains the power under “eminent domain” and the state can use
emergency powers at any time.
7. There is a possibility of misusing the definition of ‘public purpose’. Mostly the
definition of public purpose is left to the executive for interpretation which
gives room for misuse.
8. The valuation of the property has to be determined according to market prices
by comparing ‘circle rates’ or sale deed of a similar property. The circle rates
are always outdated and much below the market rates. Sale deeds are also
undervalued for saving stamp duty and the reported price will be less than the
market value.
9. The dispute pattern in land acquisition cases shows that compensation paid by
courts are much higher than the compensation paid by land acquisition officers.63
It means that there is strong incentive for litigation in land acquisition cases.
This tendency may lead to higher level of disputes under the new act as well.
10. The compulsory acquisition provision ignores a large number of people who
are dependent on such agricultural lands like workers, artisans and other stake
holders depend upon the acquired land. Other social cost like political fallouts
and damage to environment are not taking into consideration by the Act.
11. Under section 69 and 70 there is unbridled power vested with the state
government for transferring an already acquired land to private companies or

63
In C.E.S.C Ltd., v. Sabdhya Rani Barik and Ors, 2008 the judiciary increased
compensation rate substantially from RS 50,00/- per –cottah to Rs.2,25,000 per cottah.
In Revenue Divisional Officer-cum-L.A.O v. Shaik Azam Sahem, 2009, the Supreme
Court increased compensation rate from Rs. 16,000 to Rs. 1,41,666.66 per acre.
40
Amending the Land Acquisition Law: The Paradox of Leaving the British ...

individuals in the name of public purpose as long as 20% of the profit shared
with the original land owner. The scope for acquiring land in the name of
public purpose and transfer it to corporates should be abandoned other than
purely public interest is involved.
12. The disparity in income and landless should be provided with alternate lands.
So far the social inequality exists; land acquisition is going to be always a
social conflict.
13. India having people without a house is 18 million and acquisition of land for
housing of poor people are going to hit by the new law and the cost is as higher
as not accessible to the poor.
14. Consent of Gram Sabha or Municipality or all adult members of the village
and SIA study is going to inordinately delay the projects.
15. Setting up of a plethora of state agencies like SIA study agency, State
Committees, District Level Committees and other expert bodies are a headache
to the State Governments and there are every chance that bureaucracy will
exploit the situation and there is a breeding ground for corruption at every
level. Monitoring and accountability of multiple agencies are problematic.
16. Fair legal process to ensure clear parameters for fixing compensation.
17. Efficient monitoring and supervisory bodies at the State and the Centre to be
created.
New Ordinance (Amendments) 2015
1. Amended Section 10(A) to withdraw the 80% consent for acquisition for private
individuals and companies.
2. Consent clause is not applicable in case of acquisitions for national security,
defense, rural infrastructure, and housing for the poor and industrial corridors.
3. Livelihood requirement is abolished for PPP projects.
4. According to the Ordinance, only land owners has to be compensated not the
people depend on the land.
5. Retrospective effect of the Act is reversed in case of compensation is already
paid or possession has taken.
6. 13 more other Acts have been included in the purview of compensation.
These amendments are not fully going to fill the gap in the 2013 Act. Watering
down of Social Impact Assessment (SIA) and taking away of retrospective operation
of the Act will reduce further litigation. Industry feel that these amendments will
increase the speed of acquisitions and rapid industrial growth. On the other hand
the farmer’s community seen this as a threat to them as it will take away land
without their consent and adequate compensation.

41
KIIT Journal of Law and Society (Volume -5: No-1)

Conclusion
Land acquisition is an economic loss to the families displaced due to forceful
acquisitions. The social cost is the psychological trauma of individuals and dilemma
of displacement. If greater the numbers of people are involved, the sufferings also
will be countless. The economic loss can be mitigated by sufficient compensation.
The proposed law made provisions for rehabilitation and settlement of the displaced
as an antidote to acquisition.
The state is always a “Trustee” of the natural resources available in the nature
including the land for the benefit of the poor, and it should be.64 Otherwise many
Nandigrams and Singur will repeat and people will die for protecting their property.
In such situations there is no winners, only losers including the government of the
people and people those who make the Governments. If there is social benefit to the
maximum number of people, if the social cost can by-pass social benefit and wealth,
then we should adopt the later one. But we are always confused with the idea of
justice, a contestable idea, and the society would be better off if the land acquisition
law advances efficiency.65 Recently the Supreme Court of India also decided to set
up a social justice bench for the speedy access to constitutional rights which may
help in solving social problems in the country.66 The new government wants industrial
sector to grow further for the sustainable growth of the economy. The race for
industrial development may be a priority for the government, but the very root of
socialist, democratic framework of the Constitution cannot be violated in a country
where social conflicts are common. A symbiotic relationship between the Government
and people can be only solve the social problems of any society, land acquisition is
not an exception to the concept of social welfare, the ultimate object of any
government.

64
M.C. Mehta v. Kamal Nath, [1997] 1 SCC 388.
65
Paul Starr, “The Meaning of Privatization,” Yale Law and Policy Review 6 (1988):
pp.6-41.
66
LiveMint, December 6, 2014.
42
PEOPLE’S PERCEPTION OF POLICE-PUBLIC
RELATIONS IN THE DISTRICT CAPITALS OF THE
NORTH EASTERN STATES OF INDIA: A STUDY IN
PERSPECTIVE OF COMMUNITY POLICING1
N. K. Chakrabarti2 & Arpita Mitra3

Abstract
Studies on police and people’s perception about police-public relationship
with special reference to the north-eastern states of India have been an abandoned
and dispossessed area of research. Community policing in India operates as some
programmes and not as a philosophy to be internalized by police officers. The
present study is an humble attempt to explore the people’s views about the nature
of police public relationship in north eastern India. The findings indicate that
police-public relations in the north eastern states in India need intervention and
introspection. The community policing programmes, administrative reforms, and
the policy issues as suggested in this study can change the present state of affairs
in police -public relations in north east India.
Key words: North-east India, community policing, police-public relationship.
Introduction
The paucity of relevant research on police and policing in India brings to light
the fact that police is analyzed more at the administrative level as it is an arm of the
state. Policing as such is studied not discretely but is taken as a function of the
police. In India, there is a serious dearth of literature on the perception of the
people about the modern police in general and community policing in particular.
Even though the atrocity imposed by the police on the masses is a popular issue of
discussion, there is a serious vacuum in so far as rigorous research on the opinion
of the masses about the police is concerned.
Similarly, studies on police and people’s perception about police-public
relationship with special reference to the north-eastern states of India have been an

1
Our thanks first and foremost to the Indian Council of Social Science Research (ICSSR)
for sponsoring the research project titled ‘People’s Perception of Police-public Relations
in the District Capitals of the North Eastern States of India: A Study in Perspective of
Community Policing’. No amount of thanks is enough for our beloved students particularly
Shashank, Puja, Ananya, Satavisha, Jaydip, Dishari and Tanuka who were part of the
research project during processing of data.
2
Professor of Law and Director, School of Law, KIIT University.
3
Assistant Professor, School of Law, KIIT University.
43
KIIT Journal of Law and Society (Volume -5: No-1)

abandoned and dispossessed area of research. Community policing in order to be


successful requires a professional body relying on science and technology to carry
out its tasks. Proper police community relationship has not been developed because
of the heterogeneous nature of the Indian society. Caste, communal and religious
discords act as a barrier in developing a common awareness of the common interests
of the community. The present study is an endeavour to explore police community
relationship in the district capitals of the north eastern states of India. The north
east is unique not only in topography and flora and fauna but also because of its
distinct ethnic groups. However it has not witnessed much development in comparison
to other states of India and not aroused much interest in social science research.
The study is a sincere attempt to fill in the void in literature on north eastern India.
Conceptualizing Police, Policing and Community Policing
“The police is an organized body of civil officers in a city, town or district
whose particular duties are the preservation of good order, the prevention and
detection of crime, and the enforcement of the laws”. 4 The word ‘police’ is used to
identify the institution of social control which attempts to prevent crime and disorder
and prevent crime and preserve peace.5
Jones and Newburn defines policing as “those organized forms of order
maintenance, peacekeeping or law enforcement, crime investigation and prevention
and other forms of investigation and associated information brokering which may
involve a conscious exercise of coercive power – undertaken by individuals and
organizations, where such activities are viewed by them and by others as a central
or key defining part of their purpose”.6 Policing is an interactive process, which
requires a balance between police powers and the rights of the citizens. Community
values, organizational constraints and individual’s decisions are correlated with
policing decisions.7
The community policing philosophy is expressed in a new organizational strategy
which requires freeing some patrol officers from the patrol cars and the insistent
demands of the police radio to maintain direct, face to face to face contact with the
people in the same defined geographic (beat) area every day. Community policing
provides a new way for the police to provide decentralized and personalized police
service that offers every law abiding citizen an opportunity to become active in the
police process.8
4
Rush, G.E. 1997. The Dictionary of Criminal Justice. Boston: Holbrook Press; p.271.
5
Germann, A.G. 1969. ‘Community Policing: An Assessment’; The Journal of Criminal
Law, Criminology and Police Science, 60(1); 89-96; p.89.
6
Jones, T.& T. Newburn. 1997. Private Security and Public Policing. Oxford:Clarendon.
7
Langworthy, R.H. & L.F.Travis. 2002. Policing in America. New York: Prentice Hall; p.7.
8
Trojanowicz, R. & Bucqueroux, B. 1990. Community Policing: A Contemporary
44
People’s Perception of Police-Public Relations in the District Capitals...

Review of Relevant Literature


It was in 1764 a young Italian economist and jurist, Cesare Beccaria published
Dei Delitti e delle Pene ( On Crimes and Punishments). In this treatise he summarized
the importance of the development of some sort of agency charged with the
apprehension of offenders and stressed that the best way of dealing with crime was
through rational punishment. Beccaria’s text soothed contemporary anxieties and
offered a rational solution to crime.9 In 1829, Sir Robert Peel, England’s Home
Secretary guided through Parliament an “Act for Improving the Police in and near
the Metropolis”. The Metropolitan Police Act established the first organised police
force in London, comprising more than 1000 men. In U.S. Boston created the first
formal police department in 1838, followed by New York in 1844 and Philadelphia
in 1854. Police agencies evolved slowly in the second half of the 19th century. The
modern era of policing can be traced from 1960 to the present day. In the 1970s,
more women were recruited to police work. Since the 1980s, the police role seemed
to be changing and there was a call for police to develop a greater awareness of
community issues. This resulted in the emergence of the concept of community
policing.10
However police work is notably distinct from other work because according
to Parker “the police have no source of revenue of their own, they must justify their
existence and their operations each year to representatives of the people who provide
the funds for police operations, fix the number of employees who can be hired,
designate their salaries and in general, prescribe the conditions of their
employment”.11 The two core components of police work involve police discretion
and police organization. Discretionary authority allows officers and police agencies
to set priorities for policing and to make best use of limited resources. Discretion
allows the police to individualize justice and to avoid problems with the overreach
of the criminal law.12 The police organization has three characteristics which are
specific to all organizations: (i) composition (individuals and groups) (ii) orientation
(towards goals), and the methods used to obtain organizational goals (division of
labour and rational coordination). Three major goals affect the setting of police
goals: environmental, organizational and individual. Environmental or community

Perspective. Cincinnati, OH; Anderson Publishing Co.; pp. 5-6.


9
Emsley, C. 1999. ‘The Origins of Modern Police’; Fitzgerald, T.J. (ed.) 2000. Police in
Society, The Reference Shelf, 72(2); New York; H.W Wilson Company; 10-13. reprinted
from History Today, April 1999; pp.10-13.
10
Siegal, L.J. & Senna, J.J. 2008. Introduction to Criminal Justice, 11th Edition. Belmont,
Canada:Thomson Learning Inc.; pp. 160-67.
11
Wilson, J.Q. 1968. Varieties of Police Behavior: the Management of Law and order in
eight communities; Cambridge: Harvard University Press; p.100.
12
Langworthy & Travis op.cit.: 21.
45
KIIT Journal of Law and Society (Volume -5: No-1)

influences involve the legal framework in which the police function and the
community are input into organizational priorities. Organizational influences are
those of powerful members especially top management who seek to fulfill certain
objectives for the efficiency and perpetuation of the organization and to satisfy its
members. Individual influences like job security , pay or fringe benefits benefit
members.13
Police is no longer a coercive force of the state but a proactive wing of
governance which serves to build sustainable communities. Community policing:
(a) is a philosophy, not just an isolated program; (b) involves a permanent
commitment to the community including average citizens;(c) broadens the mission
of the police beyond crime control; (d) provides full-service, personalized, and
decentralized policing; (e) focuses in problem solving; (f) enhances responsibility;
(g) uses both reactive and proactive policing; (h) must operate within existing
resources”.14
The evolution of police in India during the British rule is an area of interest
taking into consideration the historical perspective. But its sociological implications
are a neglected area. The Indian Police Act of 1861 was primarily a mechanism to
subjugate the people, and the traditional cooperation of the community was lost
sight of in the concerns for maintaining law and order. The imperative need was to
develop a sense of fear of authority in the entire population and it was achieved
through this system of ruler’s police. The police were to be shaped as an instrument
of the British rule, where men were disciplined and armed and without hesitation
would follow British officer’s orders. British rule did come to an end in 1947 but
not before the country was partitioned into India and Pakistan. The transfer of
population led to the killings of more than five million people from either side.
Communal violence and unprecedented civil unrest before and after India’s
independence compelled the national and provincial governments to shelve
indefinitely any possibility of a radical overhaul of the police organization they had
inherited from the British. Delay in initiating police reforms is peculiar to Indian
work culture and the unexplained motives of the ruling elite. Ill-equipped and ill
trained force has no clear strategic goals and roles. The public regards the old
police force as an instrument of an alien power. Keen upon suppression of civil
liberties, long centuries of subjugation and suppression had left irreparable scars
on the minds of the people and completely corroded the feelings of the masses.
Again the police is severely infected by the virus of social stratification, politicization,

13
Roberg, R., Kuykendall, J. & Novak, K. 2001, Police Management; California:Roxbury;
pp.76-91.
14
Trojanowicz & Bucqueroux, op.cit. 1990:5-6.
46
People’s Perception of Police-Public Relations in the District Capitals...

criminalization, a loss of value orientation, distorted performance evaluation and


accountability.15
The foremost contributory causes for the unpopularity of the police are the
following: First in the post independence period the police had to resort to the use
force against their own people due to several local agitations of groups with their
own set of demands. Second, performances of the police in the handling of crime
have been poor and there is a lack of usage of scientific methods in investigation.
Third, the spate of social laws and new forms crimes were earlier non-existent.16
Hence the use of modern gadgets especially computers is a must. According to
Verma “there is not a single police station that is completely computerized and even
today almost all data management in the police organizations is manual. It has to be
realized that automated records and advanced communications are not a luxury but
a necessity for the police. Policing in the country cannot improve unless modern
technology is introduced in the organizations”.17
In January 2000, the Central Government of India put together a committee to
look at police reform, commonly known as the Padmanabhaiah Committee on Police
reforms. Among other suggestions put forward by the Committee, its main thrust
was the need to replace the Police Act of 1861. In 2005, the Central Government of
India set up another committee, chaired by Soli Sorabjee, known as the Police Act
Drafting Committee. The Model Police Act was submitted to the union government
in October, 2006. The terms of reference required the new Act has to include measures
to change the police attitude (including a working methodology to involve the
community in policing) and embody to reflect the community’s expectations of
modern police service. When drafting the law, the Committee was also required to
consider forensic methods of policing and address issues of human rights, concern
for women, and people belonging to Scheduled Castes and Scheduled Tribes.18
Community policing in India operates as some programmes and not as a
philosophy to be internalized by police officers. The National Police Commission
(1970) expressed deep anguish over the poor state of police public relations. In
1980 the NPC gave a call to the police authorities to improve the quality of beat

15
Das, D.K. & Verma, A. 2003. Police Misssion :Challenges and Responses. Lanham:
Scarecrow Press Inc., pp.138-40; Arnold, D. 1992. ‘Police Power and the Demise of
British Rule in India:1930-1947’, in .Anderson, M. and Killingray,D. eds. Policing and
Decolonization. Manchester:Manchester University Press. and Miranda, C.J.V.1962.’The
Police Public Relations’, Maharashtra Police Journal, 3(4):89-95; p. 90.
16
Miranda, C.J.V.1962.’The Police Public Relations’, Maharashtra Police Journal,
3(4):89-95; p.93.
17
Verma, A. 2003. ‘Technological Implications for the Police’, The Indian Police Journal,
L(2):41-55; p.41.
18
CHRI, 2007. Police Reform: Debates in India:pp.25-41.
47
KIIT Journal of Law and Society (Volume -5: No-1)

patrolling and traffic duties to improve police public relations. However these
intiatives even though implemented with good intention suffers from several
drawbacks. Following are a few of the weaknesses: gap between conceptualizers
and implementers, lack of policy support, police officers lack awareness about
participative policing hence mission is fruitless, use of discretion in including people
from the community, lack of proper orientation and conviction, image of the police
remains tarnished and low self efficacy of the police officers.19
Community Policing: A Riveting Philosophy or A Measly Set of Programmes?
The Community Policing Consortium defines community policing as “a
collaboration between the police and the community that identifies and solves
community problems. With the police no longer the sole guardians of law and order,
all members of the community become active allies in the effort to enhance the
safety and quality of neighborhoods”.20 Interest in public view of the police began
in 1960s in the US as a result of urban riots. The civil rights movements and anti
war protests, highlighted the strained relationship that existed between the police
and the public in many communities.21 The community and the police must be
considered as an organic entity, a mutually supportive partnership. Any community
relations programme that involves the police as part of the community, not apart
from the community, is on solid ground. The community must involve itself with
the police, and the police with the community. Neither the community at large nor
the police can afford insulation, isolation, indifference or enmity any more than can
a healthy functioning family.22 To be precise, the basic idea of community policing
is keeping close to the community. Here the police are the public and the public are
the police. The chief duty of the police officer is to improve the quality of life of the
people in the community. The idea of community policing first emerged in the writings
of H.Goldstein in 1979 in his work ‘Improving Policing: A problem oriented
Approach’ in the journal ‘Crime and Delinquency’.
Moreover, community policing entails four general principles: (a) it relies on
organizational decentralization and a reorientation of patrol in order to facilitate
communication between police and the public, (b) it assumes a commitment to
broadly focused problem-oriented policing, (c) it requires that police respond to the
public when they set priorities and develop their tactics and (d) a commitment to

19
Misra V. 2011. Community policing: Misnomer or Fact; New Delhi: Sage; pp. 117-20.
20
Roberg et al. 2001. Op.cit. :58.
21
Reisig, M.D. &.Parks, R.B. 2004. ‘Can Community Policing help the Truly
Disadvantaged’; Crime & Delinquency, 50(2), April 2004:139-67 and Schafer, J.A. 2003.
‘Citizens Perceptions of Police Services, Race Neighborhood Context And Community
Policing’, Police Quarterly, 6(4): 440-68.
22
Germann 1969 op. cit.:93.
48
People’s Perception of Police-Public Relations in the District Capitals...

helping neighbourhoods solve crime problems on their own, through community


organizations and crime-prevention programs.23 At the heart of any community
oriented policing program is the idea of identifying and utilizing a variety of resources
to deal with and solve targeted problems. Typically these include the resources of
the police departments, as well as other city departments and agencies, community
organizations, neighborhood groups, civic clubs, fraternal organizations, educational
institutions and others. Too often, police officials are inclined to look no further
than their own organizations when seeking resources to deal with new or unique
problems. To police practitioners, community policing can yield a number of benefits,
including (a) a sense of pride in their work (b) a realization that patrol work can be
more interesting than they thought, (c) a growth in their sense of efficiency, (d) a
realization that citizens may welcome the opportunity to work with the police.24
Thus, community policing has also been impacted by the technological advances
in computerization and crime prevention strategies. Three of the more significant
advances include (1) crime analysis: (2) Computer-Aided Dispatching enabled police
officers to capture and retrieve many types of crime and operational data (3) Crime
mapping are highly sophisticated graphics which enable investigators and crime
analysts to obtain accurate and detailed maps of past, present, and potential crime
areas within their jurisdictions.25 However there are identifiable and persistent
constraints to the development of community policing:
(a) the culture of policing is resistant to community policing;
(b) Community policing requires emotional maturity more likely to be present in
older officers;
(c) The innovative management cop is receptive to a more expansive vision of the
police role. Traditional management cop remains rooted in his earliest training
experiences;
(d) The responsibility to respond to limitation of resources;
(e) The inertia of police unions who see community policing as a threat to police
professionalism;
(f) The two officer car engenders a sense of security and job enjoyment among
those who are policing and it may also generate a sense of remoteness from the
population being policed;
23
Skogan, W.G. and Harnett, S.M. 1997. Community Policing: Chicago Style. New
York: Oxford University Press. pp.4-8.
24
Wycoff, M.A. 1988. “The Benefits of Community Policing: Evidence and Conjecture”
in.Greene, J.R & Mastrofski, S.D. ed. Community Policing: Rhetoric or Reality. New
York: Praeger Publishers; 103-120; p.111.
25
Hunter, R.D., Barker, T. &. Mayhall, P.M. 2008. Police –Community relations and
the Administration of Justice; Seventh Edition. New Jersey: Pearson Prentice Hall; pp.246-
247.
49
KIIT Journal of Law and Society (Volume -5: No-1)

(g) (h) Command Accountability;


(h) Reward structure as it is impossible to measure the amount of crime a certain
police officer prevented;
(i) Public expectations of police;
(j) Failure to integrate steps for crime prevention; and
(k) The ambiguity of community as police community reciprocity can be achieved
when there is a genuine bonding of interests between the police and the served
citizenry and among definable section of the public.26
Suggestively one can reduce conflicts between the police and the public by
hiring more minority officers, sensitizing officers about cultural diversity, reducing
police use of force, developing open citizen-complaint handling processes, creating
stable beat assignments and developing problem-oriented policing. Three forms of
community policing specifically equitable community policing focusing on equity
concerns, efficient community policing having network with other organizations
and effective community policing .
Objectives of The Study
The present study will seek to assess the perception of the people about the
community policing programmes that have been undertaken in the north eastern
states of India. The study will also attempt to understand the level of awareness and
sensitization of the citizens about the philosophy of community policing and their
level of participation in such programmes. The study seeks to evaluate whether the
community policing initiatives have been successful in bridging the gap between
the police and the public.
Lastly, the study also seeks to explore the extent to which Information and
Communication Technologies (ICTs) are being used by the public as well as the
police to reach out to each other.
Methodological Orientation
1. Universe of the study
The residents of the district capitals and suburbs of six Northern Eastern
States of India is the universe of the study. In this regard, it is to be mentioned that
the capitals of six north eastern states include Dispur (Assam), Gangtok (Sikkim),
Imphal (Manipur), Aizwal (Mizoram), Itanagar (Arunachal Pradesh) and Agartala
(Tripura).

26
Skolnick, J.H. & Bayley, D.H. 1988. ‘Theme and Variation in Community Policing’,
Crime and Justice , V10:1-37; p.28.

50
People’s Perception of Police-Public Relations in the District Capitals...

2. Area of Research
The area of research will be the six states of north eastern India namely Assam,
Sikkim, Arunachal Pradesh, Mizoram, Manipur and Tripura.
3. Sampling Frame
Since the study is exploratory in research, no sampling frame was required as
non- probability sampling techniques will be employed to collect primary data.
4. Sampling Procedure
Non-Probability Quota Sampling is used to collect relevant data. “Non-
probability sampling may be used effectively in studies that seek to explore ideas
that are still underdeveloped’.27
Quota Samples are non-probability samples in which subsamples are selected
from clearly defined groups. Groups are defined and the sizes specified, and then
individuals who fit those descriptions are selected to fill the quotas wherever they
are found.28 The main criteria for selection of the sample is sex.
5. Units of Observation and Sampling Size
The sample is of 400 respondents with a minimum of 50 from each of the
district capitals of the six north eastern states of India. An equal division of male,
female is maintained in this regard.
Capital Male Female
Agartala 50 50
Aizawl 25 25
Dispur/Guwahati 50 50
Gangtok 25 25
Itanagar 20 30
Imphal 30 20
Total 200 200
6. Methods of Data Collection and Data Analysis
In this exploratory study, multiple methods are for data collection. That can
involve face to face interviews, observation and analysis of secondary data. We
have selected multiple methods in order to best utilise both qualitative and quantitative
data in view of the fact, that community policing in India in general and north
eastern states is not yet developed as expected in comparison to other countries.

27
Baker, T.L 1999. Doing Social Research; 3rd Edition. Singapore: McGraw Hill College; p.138.
28
Ibid.:139.
51
KIIT Journal of Law and Society (Volume -5: No-1)

Primary data has been collected through direct face to face interview of the
people. Interview schedule will be employed to collect the relevant information.
The interview schedule will contain open-ended, closed-ended, matrix and
contingency questions. Government Reports in this regard have also been used to
collect relevant information.
Secondary data will be collected by studying the websites of the police
organizations of the north-eastern states of India. Other relevant enclopaedia,
newspaper reports, journals and articles in magazines have been used to collect
data.
After coding, the data has been quantitatively represented through univariate
tables and bargraphs followed by analysis of the same.
Summary of the Findings
1. Agartala
 80 % of the residents of Agartala comprising 43 women do not have an
acquaintance in the police station.
 27 residents of Agartala found the police to be bad, while 34% with 16 women
found the police to be very bad.
 53% of the residents were of the opinion that the police maintains law and order.

 69% of the residents of Agartala were not happy with the police.

 30 residents expected that the police should be diligent in their work. 22


respondents with an equal proportion of male and female wanted the police to be
more active.
 65% of the residents confirmed that the police do perform community service.

 66% of the respondents have not heard about the community policing programmes
of the State Police.
 77% of the women have never visited the police station.Only 6 out of 50 women
have visited the police station.
 13 of the 23 people who have visited the police station were happy with the
response that they got in the police station.
 67% of the residents feel that it is very likely that the police will inflict severe
harm on a suspect.
 90% of the residents felt that there is likelihood that that the police officer will
be punished if caught taking bribe.
 70 residents with an equal number of male and female found that the relationship
between the police and the media is unfriendly.
 22 residents felt that it is likely and 70 of them felt that it is very likely that the
police will inflict severe physical harm on a suspected member of a criminal
organization.
52
People’s Perception of Police-Public Relations in the District Capitals...

 88% of the residents families have not benefitted from the community policing
programmes.
 All the100 residents were of the opinion that community development programmes
are needed.
 98% of the residents were interested in participating in the community service
initiatives of the police.
 43% of the residents found that the relationship between the police and the public
is not healthy.17 women felt that the relationship between the people and the
police is good.
 37% of the residents believed that police public relationship can enhance through
good understanding between the police and the people.
 99% residents felt that community policing initiatives are necessary.
 91% residents out of which 48 are women are aware that the police has a website.
However 75 of them with 40 women have never visited the police website.
 91% respondents were not having information about the mobile number of any
police officer
 86 % of the residents with 48 women do not know the email id of any police
officer.
 99% of the residents felt that mobile telephone is the most commonly used ICTs.
 78 % of the residents have internet connection at home.
 96% of the residents opined that both electronic and print media can be used to
publicise the community policing programmes of the police.
 93% residents are hopeful that ICTs can play a positive role in improving police
public relationship.
2. Aizawl
 30 (60%) of the residents with 13 women did not have any acquaintance in the
police station.
 38 (76%) residents of which 18 are women are of the opinion that the police is
good.
 27 (54%) residents are of the opinion that the police maintains law and order.

 43(86%) of the residents are satisfied with police performance.

 16 of the 25 women and 10 (40%) men were of the opinion that the police do not
perform any community service.
 41 (82%) of the residents with 22 women were not aware of any community
policing programmes of the Mizoram Police.
 32 (64%) residents with 17 women have never visited the police station.

 44 (88%) of the people have never called up a policeman to lodge a complaint.

 25 (50%) residents with 15 women believed that there is every likelihood that

53
KIIT Journal of Law and Society (Volume -5: No-1)

the police will inflict minor harm on a suspect.


 31 (62%) residents had a trust in the justice delivery mechanism and believed
that the if a police officer inflicts severe physical injury on a suspect he will be
prosecuted and punished.
 39 (78%) of the respondents with 17 women were of the opinion that if caught
taking bribe the police officer will be punished.
 25 (50%) of the residents with 14 women were of the view that the relationship
between the police and the media is unfriendly.
 26 (52%) residents believed that the police will inflict severe physical harm on
a suspect from a criminal organization.
 All the respondents agreed that there is a need for community development
programmes
 60% residents with 90% of the women were of the opinion that special treatment
should be given by the police to the women.
 80% of the residents of Aizawl were of the opinion that children would be
attended with utmost care and affection by the police.
 40 (80%) residents with 21 women were interested in participating in the
community service initiatives of the police.
 60% of the residents believed that the police public relationship is good.
 94% of the people felt that police public collaborations are required to have
safe and secure communities.
 39 (78%) residents believed that community policing initiatives can improve
police public relationship.
 29 (58%) of the 50 residents prefer to contact the police through mobile phones.
 38 (76%) residents said that the city police does not have a website.
 34 (68%) residents with 18 women did not know the mobile number of any
police officer.
 41 (82%) residents did not know the email id of any police officer.
 More that 90% residents were using mobile telephones. 38 were using internet
and 21 were using laptops.
 28 (56%) residents were having internet connection at home
 39 (78%) residents said that the print and the electronic media can play a very
constructive role in publicising the community policing programmes.
 41 (82%) residents felt that ICTs can yield positive outcome in the success of
community policing initiatives.
 29 (58%) respondents were of the opinion that ICTs can improve police public
relationship.
3. Dispur/Guwahati
54
People’s Perception of Police-Public Relations in the District Capitals...

 53% of the residents with 29 women did not have any acquaintance in the police
station.
 68% of the respondents were happy with the police.
 73% of the respondents were of the opinion that police maintains law and order.
 56% of the female are happy with the police work.52% of the male respondents
are unhappy with the police.
 90% of the residents of Guwahati are of the opinion that the police do not engage
in any community service.
 93% of the respondents were not aware of community policing programmes.
 33 (66%) of the male respondents have visited the police station. 70% of the
female respondents have never visited the police station.
 More than 90% of the respondents who had visited the police station were satisfied
with their experiences in the police stations.
 92% of the respondents have never lodged a complaint to the police station over
telephone.
 48% residents felt that it is unlikely for the police to inflict severe harm on a
suspect.
 66% of the residents felt that it is very likely that a complaint against a corrupt
police officer will be heard and punishment will be rendered.
 Only 25% respondents were of the opinion that the relation between the media
and the police is friendly.
 96% of the respondents did not benefit from the community service programmes
of the police.
 All the respondents felt that the community development programmes by the
police are required.
 94% of the respondents felt that the police should give special treatment to the
women.
 75% of the respondents out of which 39 women felt that the elderly deserve
special treatment by the police.
 84 of the residents with 46 women felt the need for special treatment of the
children by the police.
 91% of the respondents were interested to join hands with the police in the
community development initiatives.
 64% of the men and 68% of the female residents felt that the relationship between
the police and the people is good.
 95% of the residents believed that community policing initiatives are necessary.
 50 % felt that community policing initiatives can improve the bond between the
police and the people.

55
KIIT Journal of Law and Society (Volume -5: No-1)

 83% of the respondents said the city police does not have a website.
 59% of the residents did not know the mobile number of any police officer.
 99% of the residents did not know the email id of any police officer.
 90% of the residents felt that the print and electronic media can play a very
constructive role in publicizing the community policing programmes.
 86 of the residents felt that ICTs can play a positive role in publicising community
policing programmes.
 68% of the residents believed that ICTs can improve police public relationship.
4. Gangtok
 28 (56%) respondents did not have any acquaintance in police service.

 28 of the residents found the police to be good.

 56% of the residents believed that the police should maintain law and order.

 43 respondents and all women were satisfied with the work of the police.

 70% of the respondents who were not satisfied with police work wanted the
police to cooperate and be friendly with the people.
 46 (92%) respondents with an equal proportion of male and female have not
heard about any community policing programmes of the police.
 27 (54%) of the residents have never visited a police station out of which 15
were men.
 22 out of the 23 who visited the police station were satisfied with the response
they got from the police.
 None of the respondents have lodged any complaint over telephone.

 20 (40%) residents out of which 13 were women were of the opinion that it is
likely that the police will inflict severe harm on a suspect.
 60% of the respondents out which more than 90% are women had the faith that
is likely that if a police officer is exposed by a reporter taking bribe he/she will
be punished.
 23 respondents did not have any idea whether the police will severe harm on a
suspected member of a criminal organization.
 44 (88%) respondents including all women were of the opinion that the family
has not benefitted from the programmes.
 49 of the 50 residents felt there was a need for the police to conduct community
development programmes.
 39 (78%) residents including all women residents felt that the police should
provide special treatment to the elderly.
 31 (62%) respondents were of the opinion that the elderly should be given special
treatment by the police.
 38 (76%)residents believed that the police public relations in the city is good.

56
People’s Perception of Police-Public Relations in the District Capitals...

 36 (72%) respondents were of the opinion that community policing initiatives


are necessary to improve police public relationship.
 30 (60%) respondents were of the view that the city police did not have a
website.
 20 (80%) of the males did not have knowledge of the mail id of any police
officer.
 43 (86%) residents out of which 25 (100%) women had internet connection at
home.
 80% of the residents of Gangtok believed that both print and electronic media
can publicise community policing programmes.
 38 (76%) residents with 25 women believed that ICTs can publicise police public
relationship.
5. Imphal
 50% of the women do not have any acquaintance in the police station. 73% of
the men do not have any known person in the police station.
 None of them had an appreciation for the police.

 None of the residents of Imphal were satisfied with the police.

 60% of the residents wanted the police to be more hardworking, diligent.

 98% of the residents have never heard about any community policing programmes
of the Manipur Police.
 86% of the residents have never visited the police station.

 None of the residents have ever lodged any complaint over telephone.

 78% of the people were of the view that the police will inflict severe harm on a
suspect.
 58% of the residents felt that if a complaint is lodged against a police officer for
taking bribe it is very unlikely that any action will be taken against him.
 More than 90% of the residents did not find the police to involve in any community
service.
 60% of the residents felt that the police should give special treatment to the
women.
 26 residents (52%) felt that the elderly deserve special care and attention from
the police.
 90% of the residents were not interested to participate in the community policing
programmes of the police.
 44% residents found that the police public relationship is bad, while 16 found it
to be worse.
 80% were not hopeful about how to improve the relationship between the police
and the people.
57
KIIT Journal of Law and Society (Volume -5: No-1)

 90% residents feel that community policing initiatives are not necessary.
 All the people were of the opinion that the city police does not have a website.
 80% residents do not know the mobile number of any police officer.
 None of the residents knew the email id of any police officer.
 70% men and 40% of the women feel both the print and the electronic media
can be used to publicise the community policing programmes of the police.
 90% of the residents felt that ICTs cannot improve police public relationship.
6. Itanagar
 52% respondents including 50% of the women found the police to be bad.
 74% residents were not happy with the police work.
 90% of the residents emphasized that the police did not perform any community
service.
 None of the residents had heard about community policing programmes.
 52% of the respondents have visited the police station.
 80% of the residents have never lodged any complaint to the police over telephone.
 Nearly 80% feel that if a police officer inflicts severe physical injury on a suspect,
the investigation opens but it never reaches a conclusion.
 22 residents opined that if a police officer is exposed taking bribe, it is unlikely
that he/she will be punished.
 More than 80% of the residents of Itanagar believed that the police are not
involved in community service like cyber crime awareness, night guard in
neighbourhood, every day foot beat patrol, education for the deprived and welfare
committee.
 43 out of 50 felt the need for community development programmes by the police.

 80% of the residents felt that apart from law and order maintenance the police
should engage in diverse activities.
 60% of the women wanted that special treatment should be given to them by the
police.
 64% of the residents were interested to participate in the community policing of
the police.
 52% of the residents of Itanagar were of the opinion that the police public
relationship is not good.
 44% of the residents believed that the active involvement of the police in the day
to day life of the people can improve the relationship between the police and the
public.
 46 (92%) of the residents felt the need for community policing initiatives by the
police.
 68% of the residents preferred to communicate with the police face to face.

58
People’s Perception of Police-Public Relations in the District Capitals...

 72% residents said that the city police does not have a website.
 58% of the residents do not know the mobile telephone number of any police
officer.
 None of the residents are aware of the email id of any police officer.
 72% of the residents feel that the community policing programmes can be
publicised through media and newspaper.
 66% of the residents feel that ICTs has a role to play in police public relationship.
Limitations of the Study
 The sample is small and hence no generalization can be made.
 It is a cross-sectional study, however a longitudinal study could have yielded a
comparative analysis of whether the police-public relationship is changing over
time.
 The study has only taken sex as the independent variable, however caste, age,
ethnic status, language, religion have not been a criteria for measuring or
comparing any difference in opinion.
 The views of the subordinate police officers have not been taken into consideration
to assess what they feel about the police public relationship in the city.
 The time frame is short and only people’s perception in the district capitals have
been procured. We have not gathered any information about the scenario in the
rural areas.
The study is posed to be unique in exploring police public relationship in the
north eastern states of India. The findings will be helpful in conducting further
research in this less traversed path of information. It can also be of great help in
policy making on the part of the governments of the north eastern states as to what
more needs to be done and whether they have been successful in reaching out to the
people. Further, similar researches can also be conducted in other states to have an
all India picture.
Policy Implications
The key issues of community policing at operational level reveal that the
concept refers to: (a) a particular kind or set of operational programmmes; (b) a
particular kind or set of administrative reforms/strategic changes in the police
department; and (c) an overall philosophy or style of policing that is meant to
change the entire department’s operations.
1. Operational Programmes
 A more comprehensive community policing programme is required in all the
states of north east of India. In addition to this, proper steps should be undertaken
to involve the people in these initiatives to make them successful and fulfill the
objectives of the mission.
59
KIIT Journal of Law and Society (Volume -5: No-1)

 Sensitization programmes are required to make both the police and the people
aware of the principles of community policing and its relevance in today’s world.
 Everyday patrolling on foot is required to keep a check on uprisings and internal
disputes and more so, to prevent crime. It will increase police visibility and
community contact.
 Decentralize the forces into beat areas with storefront offices which will minimize
the response time and bring forth transparency.
 Arrangement of night guard by involving community people is required to check
violent crime, terrorist activities and intrusions.
 Regular meetings with the people in every neighbourhood through Nagarik
Committee as in Guwahati and Prayas in Agartala can be conducted.
 Health awareness programmes are also needed to keep the people aware about
HIV, tuberculosis, and other contagious diseases.
 Steps should be taken to form databases of the vulnerable people of the locality
like elderly, women, children, street dwellers and the physically challenged
persons.
 In interaction with the people it was found that they wanted special treatment
for the women, children and the elderly. Hence it is required to have women
police stations, children’s counseling centres, anti drug addiction camps ,
awareness drives, helplines for the women, children and elderly.
 The young population should also be made aware about the misuse of the
cyberspace and cybercrimes. They should also be made aware about how to
report if he/she is a victim of cybercrime. Such awareness drives should be
conducted at educational institutions because the youth comprises a lion’s share
of IT users.
 Police should win over the trust of the youth by involving, sponsoring or
organizing the sports events, blood donation camps, and traffic rule awareness
drives.
2. Administrative Reforms
 The autonomy of the officers and their problem-solving capacity with more
infrastructural support should be enhanced.
 Formation of neighbourhood welfare committees at every ps, special task force
involving the local people during elections and festivities can be constituted to
build secure societies.
 These hilly areas often suffer from natural calamities like landslides, flashfloods,
earth quakes. Thus the police should form disaster management groups by
involving the youth of the area.
 Steps should be taken by the police stations to appoint volunteers from the

60
People’s Perception of Police-Public Relations in the District Capitals...

neighbourhood to identify the problems in the locality.


 Initiatives should be taken to start e- governance in policing. More number of
ICTs and associated technological facilities should be installed at every police
station to improve response and ensure better communication.
 There should be more induction of women policemen in the police service.

3. Change in style of Policing


 Police should make special efforts to improve public satisfaction in the police
service.
 Sincere efforts are required by the state to ensure that the police experience job
satisfaction. A discontented group of officers can never win the trust of the
people.
 In some states like Manipur and Assam police public relation is not sound and
healthy. In these states the crime scenario is also poor with high incidents of
violent crimes. A more collaborative effort on the part of the people and the
police can control the crime rate and reduce it.
 The north eastern states have a high percentage of tribal population. These are
the people who have faced discrimination and under-development, therefore
proactive efforts on the part of the government and more so the police is required
to win over the people and involve them in participative policing. This can also
prove to helpful in controlling internal disturbances, illegal intrusions and
insurgency.
 The police should ensure reduction of repeat calls for service at every beat of the
police stations.
 Police officers must use ICTs in police work and develop an acumen for advanced
and sophisticated technologies so that they become a high-tech police force.
 Policing requires soft skills for daily interaction with the people. Therefore police
officers should be imparted training in ‘soft policing’ to nurture the soft skills in
order to give the police department a complete new look in approach and style.
Concluding Remarks
From the aforesaid findings and recommendations it may be safely said that
police-public relations in the north eastern states in India need special effort and
immediate attention. The community policing programmes, administrative reforms,
and imbibing the philosophy of community policing among police personnel are the
policy issues as suggested in this study can change the present state of affairs in
police -public relations in the areas under study. The researchers hope that the
situation will definitely improve provided the recommendations being implemented
as far as practicable in the north eastern states in India.

61
KIIT Journal of Law and Society (Volume -5: No-1)

GLOBAL HUMAN RIGHTS MOVEMENT: NEW


THREATS AND CHALLENGES
Rachna Sharma*

Introduction
The International Human Rights Movement is made up of men and women
who gather information on rights’ abuses, lawyers and others who advocate for the
protection of rights, medical personnel who specialize in the treatment and care of
victims, and the much larger number of persons who support these efforts financially
and often by such means as circulating human rights information, writing letters,
taking part in demonstrations, and forming, joining and managing rights
organizations. They are united by their commitment to promote fundamental human
rights for all, everywhere.
In the period since the end of Second World War, these rights have been
recognized in such international agreements as the Charter of the United Nations,
the Universal Declaration of Human Rights and in a host of Global and Regional
Human Rights Treaties. There is a widespread agreement among those who identify
themselves amongst the international human rights movement that the fundamental
rights to which they are committed include a prohibition on the arbitrary or invidious
deprivation of life or liberty; a prohibition on state interference with the right of all
to express themselves freely and peaceably by speech, publication, assembly, or
worship; the right of all to equal treatment and equal opportunity regardless of
race, ethnicity, nationality, religion or gender and a prohibition on such cruelties as
torture.1
New Threats and Challenges Before the Human Rights Movement
The Human Rights Movement, which is considered to have gained momentum
in the Post-Second World War era, more particularly after the adoption of the United
Nations Charter (1945) as well as the Universal Declaration of Human Rights
(1948), is considered to have come of age. The movement is certainly facing a few
threats as well as a few challenges. The purpose of this paper is to highlight some of
these threats and challenges that the modern human rights movement is facing.
These, inter alia, include:

* Assistant Professor of History, Rajiv Gandhi National University of Law, Punjab (Patiala).
E mail: ruby.bhardwaj8@gmail.com
1
Aryeh Neier (2012): The International Human Rights Movement: A History, New Jersey:
Princeton University Press, p. 2.
62
Global Human Rights Movement: New Threats and Challenges

In the first place, at the close of the twentieth century, human rights are still
being trampled upon in numerous part of the world. Economic and social rights
were largely ignored in most countries of the world and their protection - national,
regional or international - was a scarce commodity notwithstanding the efforts of
the Commission on Human Rights, the special procedures, the High Commissioner
for Human Rights, and even of the United Nations Security Council. Human rights
problems were numerous stemming from poverty, conflicts, terrorism, inequality,
poor governance, and atrocities committed by the government on their own subjects.2
It is precisely the contention that human rights are universal and may not be
infringed upon by government that makes the concept of such rights so controversial
and problematic in the world today. What is important to our discussion of human
rights is that state sovereignty and its appurtenance, cultural exclusivity, are the
major impediments to a system of universal human rights. The idea that certain
principles and institutions, such as participatory democracy, are simply, alien to
particular people is encapsulated within the notion of “cultural relativism”. In theory
cultural relativism is the reasonable idea that certain political, economic, social and
cultural groups, and that the abrupt, artificial introduction of the alien influences
can be disruptive. In practice, however, cultural relativism is often employed by
ruling elites as a pretext for opposing homegrown reform movements that threaten
their power of status. The entrenchment of the universal culture of human rights
calls for the enthronement of human rights reasoning in dealing with new problems,
issues, threats and new challenges. The knowledge and practice of human rights
must be universalized by means of education and access to relevant information.3
A globalizing world presents opportunities as well as difficulties for the universal
realization of human rights. Global terrorism assaults human rights and at the same
time requires strategies of response grounded in international human rights norms.
The contemporary human rights movement faces host of challenges. It has been in
the forefront of efforts in many countries to stop violations of civil liberties committed
in the name of the so called “war on terror” and to prevent what were in many
cases, hasty responses to a perceived emergency from turning into new norms for
investigating and regulating the day to day activities of the citizens.4 The human

2
Bertrand G. Ramcharan (2009): “Human Rights in the Twenty First Century.” In:
Gudmundur Alfredsson et.al. (2009): International Human Rights Monitoring
Mechanisms, Netherland: Martinus Nijhoff Publishers, pp. 3-8, at p. 4.
3
Joe Jenkins (2005): Ethics and Religion, Heinemann Educational Publishers, Oxford,
p. 32. For more details, see: Jack Donnelly (2003): Universal Human Rights: in Theory
and Practice, New York: Cornell Paperbacks, pp. 89-119. Also see: Rein Mullerson
(1997): Human Rights Diplomacy, New York: Routledge, p. 73.
4
ibid., p. 20.
63
KIIT Journal of Law and Society (Volume -5: No-1)

rights movement, having become capable of exercising significant influence over


public policy during the last ten or twelve years of the Cold War, confronted its
most significant challenge after the terrorist attacks on New York and Washington
DC, on September 11, 2001. The use of coercive measures up to and including
torture against those suspected of involvement in terrorism, though discredited to a
greater degree than other abuses, still has political support in a country like the
United States. Certainly the human rights movement has made headway but the
arguments continue. And with each new terrorist outrage - each attack whether
failed or successful, whether in New York, Bali, Jakarta, Madrid or Mumbai - the
human rights cause suffers a setback.
We see that the human rights movement today is made up of a large number of
organizations with more supporters, more resources, operating with more places
and dealing with wider range of issues than ever before.5 As a matter of fact, in
reality, the human rights movement has often been at odds with democratically
elected governments over such issues as the minority rights, the abuse of the detainees
and restrictions on the liberties of their critics. Some of those equating the promotion
of democracy with the effort to secure human rights have argued that the deficiencies
of democracies are self-correcting; whereas the shortcomings of other forms of
government are less susceptible to change. Whether or not this is the case, this is
the experience of the international human rights movement that many significant
human rights abuses are committed by the governments that are democratic.6 In
contemporary times, Columbia, Peru, Isreal, Russsia and Srilanka could be cited
as examples of countries in which the popular will, periodically expressed at the
polls, has produced governments that have engaged in significant human rights
abuses over a sustained period of time. India is the world’s largest democracy but it
has committed substantial abuses in conflict areas such as Kashmir and the violation
of rights against impoverished detainees in the criminal justice process are endemic.
In countries in other parts of the world like Zimbawe, Venezuela and Iran leaders
such as Mugabe, Chavez, Ahmadinijad have come to power by democratic elections
and subsequently perpetuated their rule by undemocratic means that included severe
violation of rights. Documenting and denouncing such abuses internationally remains
an important part of the effort to curb their violations.7
The societal problems such as HIV/AIDS and the trafficking in human beings
also present new dramatic challenges to the human rights movement. Developments
5
ibid., p. 22.
6
For further details, see: Ole W. Pedersen and C. R. G. Murray (2012): “Examining
Critical Perspectives on Human Rights: An Introduction”. In Rob Dickinson et.al. (2012):
Examining Critical Perspectives on Human Rights, Cambridge: Cambridge University
Press, pp. 1-18, at p. 7.
7
ibid., pp. 175-76.
64
Global Human Rights Movement: New Threats and Challenges

in biomedicine, science and technology raise new issues requiring innovative policies
and international norms. Relations between different philosophies, cultures, religions
or beliefs across the globe often give rise to the tensions that need to be addressed.8
It is precisely on such issues that the newly established Human Rights Council
must make reasoned contribution.9 Regional co-operation would need to be
strengthened. In future the main focus of the United Nations human rights activities
should be on bringing universal respect in fact for the norms that had been agreed
upon in practice. The challenge of promoting respect for human rights was global.
The goal of United Nations body must be to translate the wide commitment to
human rights into an increasingly persuasive means to eliminate abuses wherever
they occur.10
Similarly globalization also poses an equally serious challenge to the human
rights movement. It is not a simple but a very complex set of processes that operate
at multiple levels - political, economic and cultural. It is useful, in this context, to
analyze it from the basis of Richard Falk’s argument that there are two kinds of
Globalization: globalization from above” and “globalization from below”. These
two kinds of globalization are in a dialectical relationship and that from a left
democratic progressive perspective the latter is not only preferable but desirable.
Globalization from above is reflected in the western countries and global financial
institutions pressurizing countries in the South and former Eastern Bloc to
democratize. Globalization from below is reflected in the virtual explosion, in all
quarters of the Third World, of tenacious resistance against the onslaught of the
western culture: the struggles for cultural survival of the indigenous people, the
critique and often rejection of western based notions of modernity and secularism;
and the deconstruction of “given universals” that are a function of historical
imperialism and colonialism.
Since the early 1990s, there had been much academic discussion about whether
globalization was good or bad. Some scholars, notably a few legal scholars and
political scientists, think it obvious that globalization is detrimental to human rights.
Peter Schwab and Admantia Pollis, for example, focus only on the negative aspects
of globalization, stating, “Clearly globalization has had a deleterious effect on the
entire complex of human rights”. Other scholars, economists in particular, argue
implicitly that globalization can and often does have beneficial effects on human
rights.11 As is already well said, globalization is a compendium of ideas, practices,

8
Michael Goodhart (2009): “The Future of Human Rights”, In Michael Goodhart (ed.):
Human Rights: Politics and Practice, Oxford, Oxford University Press, pp. 347-362, p. 359.
9
Bertrand G. Ramcharan (2009), pp. 5-6.
10
ibid., p. 8.
11
Rhoda E. Howard-Hassman (2010): Can Globalization Promote Human Rights?,
Pennsylvania: The Pennsylvania University Press, p. 2.
65
KIIT Journal of Law and Society (Volume -5: No-1)

institutions, directions of change and ideologies. Some of these diminish rights,


others promote them, and some do both simultaneously: for example, the internet
and the new forms of technology more generally, which provide more opportunities
for both freedom of expression and access to information and open new possibilities
of networking; at the same time they greatly increase the influence of corporations
and opportunities for hate speech, pornography and sexual trafficking. This makes
it particularly hard to distinguish between the positive and negative consequences
of globalization for rights. However, even though they are interconnected, it may be
possible to distinguish the economic process of globalization from the more political
and social processes. There is considerable tension between the economic and other
processes in so far as rights and justice are concerned.12
At the same time, we find that the economic globalization requires the recognition
of the multiple human rights duty holders.13 Human Rights are no longer affected
only by the states, which has territorial control over the area where people live.
Decisions by certain inter-governmental organizations, by economic or violent non-
state actors and by other states have far reaching consequences for the degree to
which human rights are enjoyed in a particular part of the world. None of these
other actors is, however, sufficiently accountable for the human rights impact of
their actions vis-a-vis people affected by their activities.14
Most of the protestors do not oppose international trade, as is commonly held,
but instead seek international regulations to secure the rights of the women, children,
and labor to promote development and protect the environment.15 The Economic
Development Programmes, argues the Nobel laureate Indian Economist Amartya
Sen, should not require, “blood, sweat and tears” sacrifice by a population, but
adopt a more congenial approach with respect for human freedom as their central
tenet. Article 1 of the United Nations Declaration on Environment and Development,
drafted at Rio de Janeiro (1992) encapsulates some of his concerns: “Human beings
are at the centre of concerns for sustainable development. They are entitled to a
healthy and productive life in harmony with nature.” 16

12
Yash Ghai (1999): “Rights, Social Justice and Globalization in East Asia.” In: Joanne
R. Bauer and Daniel A. Bell (eds.): The East Asian Challenge for Human Rights,
Cambridge: Cambridge University Press, pp. 242-43, at pp. 241-263.
13
Peter N. Stearns (2012): Human Rights in World History, New York: Cambridge
University Press, p. 161.
14
Koen Feyter (2005): Human Rights: Social Justice in the Age of Market, Dhaka: The
University Press, p. 219.
15
Micheline R. Ishay (2008): The History of Human Rights from Ancient Times to
Globalization Era, New Delhi: Orient Longman, p. 255.
16
ibid., p. 261. Also see: Amartya Sen (1999): Development as Freedom, Oxford: Oxford
University Press, pp. 36-37.
66
Global Human Rights Movement: New Threats and Challenges

For many, like the Indian scholar Ramachandra Guha, deep ecology and
development projects throughout the Third World are antithetical to the environmental
positions associated with egalitarian justice. “Commodities have grown, but nature
has shrunk,” echoes his compatriot Vandana Shiva, whose concern is to halt the
commodification of the natural world, which has particularly severe consequences
for women, “the poorest among the poor . . . . because with nature, they are the
primary sustainers of the society.”17
Most developing countries aspire today not to avoid globalization, but to harness
it in a way that reduces poverty while increasing national revenue. Indeed, most
developing countries compete to attract foreign investment, offering tax incentives
and reassurances that labor costs will be controlled. Human rights activists in these
countries have so far welcomed foreign investments that create jobs, while repeatedly
condemning the job cutting consequences of IMF stimulus packages. Western labor
activists, on the other hand, object to the threats of capital flight to regions with
cheap labor, a threat used to undermine their fight for higher wages and better
working conditions. These conflicting interests have widened the gulf between the
human rights priorities within the privileged and the poor states.18
We must understand that it is not only the responsibility of the state, but is the
responsibility of every person and every organ of the society to protect human
rights and ensure their fulfillment. On 18 June 2007, the UN Human Rights Council
adopted a resolution for the creation of a Universal Periodic Review which required
every member state of the United Nations to be reviewed regularly for its compliance
with human rights. This resolution makes clear that one of the appropriate legal
source for questioning every state about its human rights record is the UDHR.
Since the UPR began many states have been questioned about human rights for
which they have no treaty obligations.19
Since the adoption of UDHR six decade ago, a remarkable global human rights
infrastructure has been put in place. What started as a ‘common standard of
achievement for all peoples and all nations’ is now transformed into a complex web
of institutions tasked with promoting and protecting human rights and preventing
human rights violations. The one institution which is conspicuously absent in this
assemblage of human rights bodies is a World Court with the mandate to adjudicate
human rights on a global scale. While human rights courts have been created in

17
Vandana Shiva (1989): Staying Alive: Women, Ecology and Development, New Delhi:
Kali for Women, p. 5.
18
Micheline Ishay (2008), p. 262.
19
Robert MacCorquodale (2010): “A Future for Human Rights Law.” In: Mashood A.
Baderin and Manisuli Ssenyonjo (eds.): International Human Rights Law: Six Decade
After the UDHR and Beyond, New York: Ashgate Publishers, pp. 541-552, at p. 542.
67
KIIT Journal of Law and Society (Volume -5: No-1)

Europe, America and Africa, no such court exists as a part of the United Nations
human rights system.20
In the years after the Vienna World Conference on Human Rights in 1993, all
the proposals made in the years after 1945 to create a comprehensive human rights
infrastructure could finally be realized, with the exception of an International Human
Rights Court. The UN High Commissioner for Human Rights now acts as a focal
point for the UN’s human rights activities; the International Criminal Court can
deliver judgments on genocide, war crimes and crimes against humanity; and the
UN Security Council has become much more sensitive to the human rights matters
than the drafters of the charter would perhaps have imagined. The idea to establish
International Court of Human Rights was once more floated around the time of the
World Conference, but whatever little enthusiasm there may have been, vanished in
the years after, not least because of the anticipation which the imminent establishment
of the ICC generated.21
The International Human Rights Court22 remains the missing piece of the 1945
blue print and the potential duties of the court to monitor states’ compliance with
human rights obligations continue to be carried out by the UN Treaty Bodies and
the UN Human Rights Council. Yet, neither the state reporting, inter-state and
individual complaints procedure of the Treaty Bodies nor the complaints procedures,
special procedures, and the newly created Universal Periodic Review of the Council
can deliver results as a judicial procedure before an international court would.23 No
doubt the difficulties in setting up of International Court of Human Rights are
considerable. Such a new court will have to be anchored in the existing human
rights framework in a way that is intellectually and practically attractive to the
interested states and the human rights movement alike.
Human Rights remain an essentially political issue, and the kind of justice a
court offers may not always respond to the need of the victims and societies affected
by human rights violations. The International Court of Human Rights will be no
exception in facing this kind of critique and having to respond to it. However just as
the ICC is important not only as a legal institution but also as a symbolic herald of
a new era, so could an international Human Rights Court (to begin with, the engaged

20
Gerd Oberleitner (2010), pp. 359-370, at p. 359.
21
ibid., p. 364.
22
The ICC is an entirely different kind of court from an International Human Rights
Court. It establishes individual criminal responsibility and put an end to the impunity of
dictators, genocidaires and war criminals but is not meant to hold states accountable for
the much greater range of violations of civil, cultural, economic, political and social
human rights as laid down in the respective treaties.
23
Gerd Oberleitner (2010): Global Human Rights Institutions, Malden: Polity Press, p.
364.
68
Global Human Rights Movement: New Threats and Challenges

debate over its establishment) open a new chapter for the UN and for the development
of international human rights law generally into the future.24
Richard Falk in his book Achieving Human Rights suggests of establishing a
Global Parliament with the mandate to incorporate transnational and futurist non-
state civil societal priorities. This Global Parliament should be capable of evolving
into a law making institution, but its initial phase of operations would be to give the
peoples of the world a direct “voice” at the global level, with a strong networking
potential of benefit to the strengthening of global civil society and an institutional
embodiment of populist concerns. As a thought experiment, the emergence of a
global parliament seems in 2012 less unlikely than did the establishment of an
International Criminal Court a decade before its establishment in 2002.
Conclusion
On the basis of the above discussion, on can safely argue that the eighteenth
century was perhaps the most skeptical period in the history of the world. There
was something in the scientific attitude which turned the human mind ethic-neutral
and to claim that moral values were not objective resulting in a process of
dehumanization. After that the twentieth Century became the bloodiest century in
consequence. The two world wars had a devastating effect on human tranquility.
Men of Vision thought that there should be some philosophy to serve as a foundation
for human behavior, either individual or collective, everywhere. This is how a
Universal Bill of Rights recognizing an international standard for human behavior
in society and polity came to be recognized in the form of UDHR, to give every
human being by virtue alone of his birth in the human family, irrespective of one’s
situational differences of caste, creed, race and language, certain irreducible minimal
rights. These rights were not conferred by the Universal Declaration. These great
rights of man were self-evident and were always recognized as universal and
inalienable and not as ‘conferred rights’. The past 60 years have seen truly
monumental achievements of the international community in the field of human
rights. This development has led to more interest and more involvement from states
in the human rights foray of the UN. A part of this increased involvement is based
on genuine interest from states in consolidating and improving the system, while
others seem to be driven by a wish to control and reverse some of the achievements.
Human Rights is no longer a marginalized area that States can ignore or be indifferent.
Moreover, the role played by the global media and the Internet disseminating human
rights concerns beyond their territorial locus is highly desirable. Similarly Non-
Governmental international organizations have also played a crucial role in the

24
ibid., p. 370.
69
KIIT Journal of Law and Society (Volume -5: No-1)

development of the League of Nations and the United Nations as well as in the
adoption of the Universal Declaration of Human Rights. They have mushroomed in
number and scope in recent years and have been playing an important role in creating
human rights consciousness in the contemporary world, thereby influencing the
human rights movement at the international and national level respectively.
We must realize that the struggle for human rights begin at home, not just in
home country, that is , within our own family and immediate neighborhood. Of
course, our future as a species also depends on our farsightedness and sense of
human solidarity when it comes to human rights. We need to feel the pain and
urgency of abuse whether in Tibet or Gaza, as well as in our inner cities or in
relation to lost farms and homes within our supposedly wealthy country. We need to
be mindful of the wellbeing of the future generations so that their life is not afflicted
with disease, hardship and authoritarian rule. Unavoidably, the vocation of human
rights advocacy cannot be separated from the pursuit of justice in all domains of
human existence. Human rights are ultimately about the quality of world order as
was acknowledged but ignored in Article 28 of the UDHR:
Everyone is entitled to a social and international order in which the rights and
freedoms set forth in this declaration can be fully realized. It is late, but not too late,
to take this unnoticed promise seriously.25

25
Richard Falk (2009): Achieving Human Rights, Routledge: New York, p. 9.

70
SHARING OF NON-NAVIGATIONAL WATER IN
SOUTH ASIA
Shuvro Prosun Sarker*

Introduction
One-half of the world’s land surface is covered by approximately 265
international watersheds and uncounted number of transboundary aquifers.1 Several
political conflicts have emerged in the past or running at present as water resource
sharing and management has poorly developed in international law.2 However,
historically is has been seen that the issue of “water” persuaded the hostile co-
riparian’s to cooperate.
Till now more than 3600 water related treaties have been signed by various
bodies since 805 A.D and there was only one water related war recorded in 4500
years ago.3 Transboundary Freshwater Dispute Database of the University of
Alabama up to 1997 has collected texts of 145 treaties related to non-navigational
water sharing dating back from 1870. One hundred twenty-four of the 145 treaties
(86%) are bilateral. Twenty-one (14%) of the treaties are multilateral; two of these
multilateral treaties are unsigned agreements or drafts.4 Fifty-seven (39%) treaties
discuss hydroelectric generation and fifty-three (37%) distribute water for
consumption. Nine (6%) mention industrial uses, six (4%) navigation, and six (4%)
primarily discuss pollution. Thirteen of the 145 (9%) focus on flood control. The
database includes one treaty (less than 1%) that primarily discusses fishing, which
is included in the database for other elements.5 Seventy-eight (54%) treaties have
provisions for monitoring, while sixty-seven (46%) do not. When monitoring is

*Shuvro Prosun Sarker is an Assistant Professor of School of Law, KIIT University,


Bhubaneswar, India.
1
Jesse H. Hamner and Aaron T. Wolf, Patterns in International Water Resource Treaties:
The Transboundary Freshwater Dispute Database, 9 Colo. J. Int’l Envtl. L. & Pol’y 157
1998. See also Meredith A. Giordano and Aaron T. Wolf, The World’s Freshwater
Agreements: Historical Developments and Future Opportunities, available at http://
w w w. t r a n s b o u n d a r y w a t e r s . o r s t . e d u / p u b l i c a t i o n s / a t l a s / a t l a s _ p d f /
2_WorldsAgreements_atlas.pdf
2
id. See also Thomas Naff, Conflict and Water Use in the Middle East, in Water In The
Arab World 253, 273-74 (Peter Rogers & Peter Lydon eds., 1994)
3
id, Hamner and Wolf, 157. See also Food and Agriculture Organization, Systematic
Index of International Water Resources by Treaties, Declarations, Acts and Cases, by
Basin, Legislative Study No. 15 (1978); Food and Agriculture Organization, Systematic
Index of International Water Resources by Treaties, Declarations, Acts and Cases, by
Basin, Vol. II, Legislative Study No. 34 (1984).
4
id, Hamner and Wolf, 160
5
id 161
71
KIIT Journal of Law and Society (Volume -5: No-1)

mentioned, it is addressed in detail and often includes provisions for data sharing,
surveying, and schedules for collecting data.6 Fifty-four (37%) of the agreements
clearly defined allocations of water, of that number, fifteen (28%) specify equal
portions and thirty-nine (72%) provide a specific means of allocation. All but three
multilateral agreements lack definite allotments, although a few establish advisory
and governing bodies among states.7 With regard to enforcement, fifty-two (36%)
treaties provide for an advisory council or conflict-addressing body within the Parties’
governments. Fourteen (10%) refer disputes to a third party or the United Nations.
Thirty-two (22%) make no provisions for dispute resolution, and forty-seven (32%)
of the texts are either incomplete or ambiguous as to the creation of dispute resolution
mechanisms.8 A chronological list of 145 treaties can be found in the water resources
index.9
Some positive trends with regard to international river basin management have
been highlighted in these treaties over the past century. First of all, the hydrologic
linkage between co-riparian states have created common interest with regard to
agriculture, industry, recreation, hydropower, flood control, environmental integrity,
human health etc.10 The basin States in most of the times have capitalized shared
interest and cooperation while some of them exploited their riparian position. For
example, Thailand agreed to provide financial support for a hydroelectric project in
Laos in exchange for a proportion of the resultant power generation as a part of the
1957 Mekong River Agreement, South Africa supports the financing of a
hydroelectric/water diversion facility and in turn receives the rights to drinking
water for its industrial heartland in Gauteng province as a part of the 1986 Lesotho
Highlands Water Project Agreement, Uzbekistan and Kazakhstan make in-kind
compensation to the Kyrgyz Republic for the transfer of excess power generated
during the growing season as a part of the 1998 Agreement on the Use of Water and
Energy Resources, etc.11 Secondly, hydrological, political and cultural issues of all
the basins have been used to formulate most of the treaty provisions. For example,
humanitarian diversions have been allowed in the case of Kunene river between
South Africa and Portugal as a part of a 1969 agreement, storing of water in a lake
and leasing of lands and well was allowed in a 1994 agreement between Jordan and
Israel, planting of trees in the upstream of Nepal was allowed in a 1966 agreement
between India and Nepal, a clause relating to cooperation for identifying corpses in
shared rivers can be founded in a 1957 agreement between Iran and USSR, etc.12
6
id 162
7
id 163
8
id 166
9
id 168
10
Giordano and Wolf, supra note 1, 6
11
id
12
id 7
72
Sharing of Non-navigational Water in South Asia

Thirdly, necessity or priority may change the text of an agreement over the time and
may initiate flexibility on water sharing management. For example, provision of
future accession of treaty has been in 1987 Agreement on Common Zambezi River
System, flexible water sharing formula has been used in 1996 India-Bangladesh
Treaty of Ganges Water Sharing at Farakka, 1986 Lesotho Highlands Water
Agreement and 1991 Komati River Basin Treaty between South Africa and
Swaziland.13 The development of treaty regime in the 20th century have bundled
several issues in to the negotiation process. For example, agreement between India
and Nepal in 1959 and 1966 have bundled issues related to irrigation, hydropower,
navigation, fishing and forestation.14
International Watercourses Convention
As a part of public international law, international water law primarily deals
with the non-navigational usage of international watercourse.15 The UN Convention
on the Law of the Non-navigational Uses of International Watercourses is the
only convention which exclusively deals with utilization, development, conservation,
management and protection of international watercourses and the promotion of the
optimal and sustainable utilization thereof for present and future generations. 16
Article 36(1) of the Convention provides that “the present Convention shall enter
into force on the ninetieth day following the date of deposit of the thirty-fifth
instrument of ratification, acceptance, approval or accession with the Secretary-
General of the United Nations.”17 The Convention was opened for signature from

13
id 8
14
id
15
Richard Paisley, Adversaries into Partners: International Water Law and the Equitable
Sharing of Downstream Benefits, 3 Melb. J. Int’l L. 280, 281 2002. See also Stephen
McCaffrey, The Law of International Watercourses: Non-Navigational Uses (2001);
Richard Paisley and Timothy McDaniels, International Water Law, Acceptable Pollution
Risk and the Tatshenshini River, 35 Natural Resources Journal 111 1995.
16
The UN Convention on the Law of the Non-navigational Uses of International
Watercourses, Adopted by the UN General Assembly in resolution 51/229 of 21 May 1997.
17
“Ratification” defines the international act whereby a state indicates its consent to be
bound to a treaty if the parties intended to show their consent by such an act. In the case
of bilateral treaties, ratification is usually accomplished by exchanging the requisite
instruments, while in the case of multilateral treaties the usual procedure is for the
depositary to collect the ratifications of all states, keeping all parties informed of the
situation. The institution of ratification grants states the necessary time-frame to seek
the required approval for the treaty on the domestic level and to enact the necessary
legislation to give domestic effect to that treaty. See Arts. 2(1)(b), 14(1) and 16, Vienna
Convention on the Law of Treaties 1969. The instruments of “acceptance” or “approval”
of a treaty have the same legal effect as ratification and consequently express the consent
of a state to be bound by a treaty. In the practice of certain states acceptance and approval
have been used instead of ratification when, at a national level, constitutional law does
not require the treaty to be ratified by the head of state. See Arts 2(1)(b) and 14(2),

73
KIIT Journal of Law and Society (Volume -5: No-1)

21 May 1997 through 21 May 2000. There were sixteen nations who have signed
the convention up to 21 May 2000. It is important to note that “where the signature
is subject to ratification, acceptance or approval, the signature does not establish
the consent to be bound. However, it is a means of authentication and expresses the
willingness of the signatory state to continue the treaty-making process. The signature
qualifies the signatory state to proceed to ratification, acceptance or approval. It
also creates an obligation to refrain, in good faith, from acts that would defeat the
object and the purpose of the treaty.” 18 As of 25 February 2014, there were 34
Parties to the Convention, and an additional 3 nations that had signed but not yet
ratified or accepted or acceded. So the Convention is waiting to enter into force yet.
The present status of the Convention as of February 25, 2014 is presented in Table
B.19
The Convention defines watercourse as a “system of system of surface
waters and groundwaters constituting by virtue of their physical relationship a unitary
whole and normally flowing into a common terminus”20 and international watercourse
is defined as a watercourse that are situated in a different States. Watercourse State
is defined as a State Party to the present Convention in whose territory part of an
international watercourse is situated, or a Party that is a regional economic integration
organization, in the territory of one or more of whose Member States part of an
international watercourse is situated”. 21
There are six general principles listed under the Convention namely equitable
and reasonable utilization and participation22, factors relevant to equitable and
reasonable utilization23, obligation not to cause significant harm24, general obligation

Vienna Convention on the Law of Treaties 1969. “Accession” is the act whereby a state
accepts the offer or the opportunity to become a party to a treaty already negotiated and
signed by other states. It has the same legal effect as ratification. Accession usually
occurs after the treaty has entered into force. The Secretary-General of the United Nations,
in his function as depositary, has also accepted accessions to some conventions before
their entry into force. The conditions under which accession may occur and the procedure
involved depend on the provisions of the treaty. A treaty might provide for the accession
of all other states or for a limited and defined number of states. In the absence of such a
provision, accession can only occur where the negotiating states were agreed or
subsequently agree on it in the case of the state in question. See Arts. 2(1)(b) and 15,
Vienna Convention on the Law of Treaties 1969.
18
See Arts.10 and 18, Vienna Convention on the Law of Treaties 1969
19
See International Water Law Project available at http://www.internationalwaterlaw.org/.
20
UN Watercourses Convention, supra note 16, Article 2(a) & (b).
21
id, Article 2(c)
22
id, Article 5
23
id, Article 6
24
id, Article 7
74
Sharing of Non-navigational Water in South Asia

to cooperate25, regular exchange of data and information26, and relationship between


different kinds of uses27. However, the principle of equitable utilization is considered
to be the fundamental principle of the law of non-navigational uses of international
watercourses.28 This principle is mentioned in the Helsinki Rules as well.29 According
to Charles Bourne, prior to the emergence of the principle of equitable utilization in
the 1960s as the dominant undisputed principle of international water law there
were three competing theories and imperfections of these theories which led eventually
to the principle of equitable utilization becoming the governing principle in
international water law:
“the first was territorial sovereignty; under it a state can do as it pleases with
the water in its territory, ignoring the effect of its actions on neighboring states.
Upstream states favored this view of the law. The second theory was riparian rights;
the waters must be allowed to flow downstream substantially unchanged in quality
and undiminished in quantity. Under it a downstream state in effect has a veto over
any major utilization of the waters by upstream sites. Downstream states adhered
to this view. The classic case was Pakistan’s invocation of this principle in its
dispute with India over the Indus River in the 1940s and 1950s. The third theory
was prior appropriation; the first utilization has priority in law. In other words,
existing uses must not be affected by subsequent developments. This principle seems
reasonable until its implications are fully realized. Developments of an international
river usually take place first near its mouth and gradually proceed upstream.
Consequently when the upstream state later wishes to develop its part of the river,
it is faced with substantial prior appropriations downstream. In substance this theory
was used against Canada in the dispute with the United States about the development
of the Columbia River.”30
The principle of equitable utilization requires States in their respective
territories to use an international watercourse in an equitable and reasonable manner
with a view to attain optimal and sustainable utilization with regard to the interests
of the watercourse States concerned.31 Apart from that development and protection

25
id, Article 8
26
id, Article 9
27
id, Article 10
28
Paisley, supra note 15, 281
29
See Article IV – Article VII, The Helsinki Rules on the Uses of the Waters of International
Rivers, adopted by the International Law Association at the fifty second conference, held
at Helsinki in August 1966, available at http://www.unece.org/fileadmin/DAM/env/water/
meetings/legal_board/2010/annexes_groundwater_paper/
Annex_II_Helsinki_Rules_ILA.pdf.
30
Paisley and McDaniels, supra note 15, 118-119
31
UN Watercourses Convention, supra note 16, Article 5(1)
75
KIIT Journal of Law and Society (Volume -5: No-1)

of an international watercourse have to be done in an equitable and reasonable


manner through participation of the concerned watercourse States which includes
both the right to utilize the watercourse and the duty to cooperate in the protection
and development.32
The judgment of the International Court of Justice (ICJ) in the case between
Hungary vs. Slovakia33 observed that the principle of equitable utilizations is the
basic governing principle of the customary international water law.34 The case came
before the ICJ due to the dispute of construction of a dam over the Danube River.
Hungary terminated the agreement in its own terms showing the work over the
Danube River would cause future harm and Slovakia reacted to Hungary by starting
provisional solution through diverting the river. Hungary claimed of violation of
equitable distribution principle and no-harm principle against Slovakia. Finally the
ICJ rejected the no harm principle and ruled in favour of Slovakia. ICJ made the
proposition clear that the principle of equitable utilization shall be dominant principle
of international water law relating to non-navigational watercourses.
Revisiting Water Treaties of India
1. Indus
The Indus Waters Treaty was signed between India and Pakistan in 1960.35 It
was signed on 19.09.1960; however it was effective from 01.04.1960. The Indus
system of rivers comprises three Eastern Rivers namely Ravi, Beas and Sutlej and
their tributaries36, and three Western Rivers namely Indus, Jhelum and Chenab and
their tributaries37. The World Bank brokered treaty actually abandoned the principles
of customary international law and practically partitioned the rivers between India
and Pakistan. This can be said to be the last unfinished business between India and
Pakistan over the partition.

32
id, Article 5(2)
33
Case Concerning the GABCIKOVO-NAGYMAROS Project (Hungary vs. Slovakia),
Judgment of 25 September 1997, International Court of Justice, available at http://www.icj-
cij.org/docket/files/92/7375.pdf
34
Paisley, supra note 15, 283. See also Aaron Schwabach, Diverting the Danube: The
Gabcikovo-Nagymaros Dispute and International Freshwater Law, 14 Berkeley Journal
of International Law 290 1996; Ida Bostian, Flushing the Danube: The World Court’s
Decision Concerning the Gabcikovo Dam, 9 Colorado Journal of International
Environmental Law and Policy 401 1998; Aaron Schwabach, The United Nations
Convention on the Law of Non-Navigational Uses of International Watercourses,
Customary International Law, and the Interests of Developing Upper Riparians, 33 Texas
International Law Journal 257 1998.
35
For full text of the treaty, see http://wrmin.nic.in/writereaddata/linkimages/
IndusWatersTreaty196054268637.pdf
36
Indus Water Treaty, 1960, Article I(5)
37
id, Article I(6)
76
Sharing of Non-navigational Water in South Asia

Under this treaty India got hold of the Eastern Rivers and all the waters of
these rivers shall be available for unrestricted use of India.38 Pakistan is obliged to
allow unrestricted water flow to India except in cases of domestic use, non-
consumptive use and agricultural use subject to other provisions regarding the Eastern
Rivers.39 With regard to the Western Rivers, Pakistan shall have the right to get
unrestricted use of water and India is under obligation to let flow the water.40 India
is under obligation to let flow the waters of the Western Rivers except for the
following uses: (a) Domestic Use, (b) Non-consumptive use, (c) Agricultural use as
specified in Annexure C, (d) Generation of hydro-electric power as specified.41
Apart from these provisions this treaty has several other provisions such as
financial provisions42, provisions relating to exchange of data43, provisions related
to future cooperation44, permanent Indus Commission45, provisions of settlement
of disputes46, emergency provisions47 etc. Though the Indus Waters Treaty had
achieved its goal in 1960s to mitigate the water sharing problem between India and
Pakistan, but in this new world, as the development of water sharing and management
have achieved a new regime, the Indus Treaty should now be re-looked and re-
negotiated.48 The infirmities of this treaty may be outlined as: inadequacy in the
light of growing demand of water, the model of water sharing in premised on political
assumptions and failure to facilitate joint Indus basin management.49
2. Kosi
The Kosi River agreement between India and Nepal50 was signed in April 25,
1954 and further amended in 1996.51 India was desirous of constructing a barrage,
38
id, Article II(1)
39
id, Article II(2-9)
40
id, Article III(1)
41
id, Article III(2-4)
42
id, Article V
43
id, Article VI
44
id, Article VII
45
id, Article VIII
46
id, Article IX
47
id, Article X
48
See James Kraska, Sustainable Development Is Security: The Role of Transboundary
River Agreements as a Confidence Building Measure (CBM) in South Asia, 28 Yale J.
Int’l L. 465 2003
49
See Manav Bhatnagar, Reconsidering the Indus Waters Treaty, 22 Tul. Envtl. L.J. 271
2008-2009
50
For water resource development in Nepal, see Dipak Gyawali, Water in Nepal: An
Interdisciplinary Look at Resource Uncertainties, Evolving Problems and Future
Prospects, 1989; Surya Subedi, Hydro-Diplomacy in South Asia: The Conclusion of the
Mahakali and Ganges River Treaties, 93 American J. Int’l. L. 953 1999; Jagadish Pokharel,
Environmental Resources: Negotiation between Unequal Powers, 1996; Prem Thapa,
Water-Led Development in Nepal: Myths, Limitations and Rational Concerns, 5 Water
77
KIIT Journal of Law and Society (Volume -5: No-1)

head-works and other appurtenant works about three miles upstream of Hanuman
Nagar town on the Kosi River with afflux and flood banks, and canals and protective
works on land lying within the territories of Nepal for the purpose of flood control,
irrigation, generation of hydroelectric power and prevention of erosion of Nepal
areas on the right side of the river.52 Nepal agreed to the Indian version of project
plan at the cost of India and in consideration of benefits arising from the project.
With regard to use of water of the river, Nepal shall have the right to withdraw
water for the purpose of irrigation and for any other purpose from the Kosi River,
Sun-Kosi River or from tributaries.53 On the other side, India is obliged to regulate
balanced water supply in the barrage site of the Kosi River. On the other side,
Nepal is entitled to use the power supply up to 50 percent of the total production of
hydro-electric power generated by India.54 In this agreement all navigation rights
and fishing rights in the Kosi River are vested with Nepal.55 Finally, arbitration
clause with regard to settlement of disputes regarding this agreement and
establishment of Indo-Nepal Kosi Project Commission is mentioned in this
agreement.56
This agreement has a mixed reaction in Nepal for the following reasons: the
confirmation of Nepal’s right to future developments in the basin is given but as of
now there were no exercise of that right, expected benefits to Nepal from the Chatra
canal have not materialized, westward shifting of the river has damaged land and
agriculture in Saptari district etc..57
3. Gandhak
The agreement was signed in 1959 and amended in 1964.58 The object of this
project is in the common interests of both Nepal and India to construct a barrage,
canal head regulators and other appurtenant works about 1,000 feet below the
existing Tribeni canal head regulator and of taking out canal systems for purposes
of irrigation and development of power for Nepal and India.59 This agreement has

Nepal 35 1997; Dipak Gyawali and Ajaya Dixit, Mahakali Impasse and Indo-Nepal
Water Conflict 34(9) Economic and Political Weekly 1 1998.
51
The 1954 Agreement on the Kosi Project (as revised in 19 December 1996), available
at http://www.internationalrivers.org/files/attached-files/treaties_between_nepal-india.pdf
52
id, Preamble
53
id, Article 4(i)
54
id, Article 4(ii)
55
id, Article 10 and 11
56
id Article 14 and 15
57
Paisley, supra note 15, 293
58
Agreement between His Majesty’s Government of Nepal and the Government of India
on the Gandak Irrigation and Power Project (as amended in 30 April 1964), available at
http://www.internationalrivers.org/files/attached-files/treaties_between_nepal-india.pdf
59
id, Preamble
78
Sharing of Non-navigational Water in South Asia

similar provisions like the Kosi agreement. However, the 1964 amendments deleted
a schedule of water requirements that was a part of the original 1959 agreement,
and confirmed that Nepal has the right to withdraw water from the Gandak water
basin for irrigation or any other purpose, except for inter-basin transfers in the lean
months of February to April.60 This agreement is believed to be a gift for Nepal as
it was given numerous benefits at no cost. There are several issues remains, such as
benefits of irrigation and power generation in Nepal have not been fully realized
because of poor maintenance of the canal, which is located mainly in India and the
Narayani Irrigation Project in Nepal is in a precarious situation on account of
Nepal’s water supply from the Don Branch Canal in India being irregular and less
than the agreed volume.61
4. Mahakali
The Mahakali River Treaty between India and Nepal is said to be historical
treaty with regard to the provisions contained therein.62 As a boundary river between
India and Nepal, this treaty have multipurpose role in the confidence building process
between the two neighbours. The provisions of this treaty are much clearer than the
Kosi or Gandhak agreements. This treaty was signed before the codification of the
UN Watercourses Convention but many of the new concepts have been incorporated
in this treaty as a matter of regional concern.
The focus of this treaty is to make an integrated development in the Mahakali
River basin along with development in the Sarada Barrage, Tanakpur Barrage and
Pancheshwar Project. With regard to the Sarada Barrage project, Nepal shall have
the right to supply of 1,000 cusecs of water from the Sarada Barrage in the wet
season, which is from May 15 to October 15, and 150 cusecs in the dry season,
which is from October 16 to May 14.63 Moreover, India is required to maintain a
flow of not less than 350 cusecs downstream of the Sarada Barrage in the Mahakali
River to maintain and preserve the river ecosystem. There is an assurance for Nepal
that even in the non-functional mode of the Sarada Barage, the right to a supply of
1000 cusecs will be continued.64
60
id, Article 9
61
See Pokharel, supra note 49,
62
Treaty Between His Majesty’s Government of Nepal and the Government of India
concerning the Integrated Development of the Mahakali River Including Sarada Barrage,
Tanakpur Barrage and Pancheshwar Project (12 February 1996), available at http://
www.internationalrivers.org/files/attached-files/treaties_between_nepal-india.pdf. For
greater discussion see Salman M.A. Salman & Kishor Uprety, Hydro-Politics in South
Asia: A Comparative Analysis of the Mahakali and the Ganges Treaties, 39 Nat. Resources
J. 295 1999; Introduction, Sharing of International Water Resources: The Ganga and
Mahakali River Treaties, 3 Asia Pac. J. Envtl. L. 172 1998.
63
id, Mahakali Treaty, Article 1(2)
64
id, Article 1(3)
79
KIIT Journal of Law and Society (Volume -5: No-1)

The second part of the Mahakali Treaty deals with the Tanakpur Barrage.
Nepal provided land to India to contract the Barrage.65 In lieu of construction of the
eastern afflux bund of the Tanakpur Barrage at Jimuwa, Nepal obtained the right to
a supply of 1,000 cusecs of water during the wet season and 300 cusecs of water
during the dry season.66 For this purpose, as well as for the purpose of supplying
water from the Sarada Barrage, India agreed to construct the head regulator(s) near
the left undersluice of the Tanakpur Barrage and build waterways with appropriate
water capacity all the way to the Indo-Nepalese border. Such head regulator(s) and
waterways are to be operated jointly by India and Nepal.67 Regarding electricity,
Nepal is entitled to an annual supply of 70 million kilowatt-hours on a continuous
basis free of cost, from the effective date of the Mahakali Treaty. For this purpose,
India agreed to construct a 132 KV transmission line all the way to the Indo-Nepalese
border from the Tanakpur Power Station.68
The third part of this treaty is Pancheshwar Multipurpose Project. This is to be
constructed on a stretch of the Mahakali River that forms the boundary between the
two countries. The Mahakali Treaty specifies that both India and Nepal have equal
entitlement to utilize the waters of the Mahakali River without prejudice to their
respective existing consumptive uses.69 Under this project two power stations of
equal capacity will be made on both the Nepalese and the Indian sides; these stations
would be jointly operated; the energy generated would be shared; and costs of the
project would be shared in proportion to the benefits.70
Apart from the abovementioned provisions this treaty has some general
provisions with regard to the following: irrigation of Dodhara-Chandani area of
Nepalese Territory71, prime consideration for Nepal in utilizing the water of Mahakali
River72, no obstruction or diversion of Mahakali River by any party73, Mahakali
River Commission74, dispute settlement through arbitration75 etc.
The importance of the Treaty cannot be underestimated. One of the important
and striking features of this Treaty is the initiation of economic cooperation between
India and Nepal, through interdependence.76 This interdependence is an important
65
id, Article 2(1)
66
id, Article 2(2)(a)
67
id, Article 2(3)
68
id, Article 2(2)(b)
69
id, Article 3
70
id, Article 3(2)
71
id, Article 4
72
id, Article 5
73
id, Article 7
74
id, Article 9
75
id, Article 11
76
Introduction, supra note 62, 177
80
Sharing of Non-navigational Water in South Asia

tool in reducing monopolistic attitudes in either of the countries. A close look at the
Treaty reveals that various articles are drafted in such a way that neither Nepal nor
India can do anything without ensuring each other’s cooperation in harnessing the
water resources of this important river.77 A sort of symbiotic relationship is worked
out under which Nepal provides the hydro-power and India supplies the much needed
investment in the form of financial resources and basic infrastructure.78 The Mahakali
Treaty did raise high expectations, which were natural, as it marked a successful
culmination of diplomatic efforts.79
5. Ganges
The Ganges Water Treaty between India and Bangladesh is a clearer treaty
with regard to water sharing than the Mahakali River Treaty.80 This treaty is bound
to the terms of equity, fairness and no harm principles.81 Whilst the Mahakali Treaty
fails to establish any clear formula for water sharing between the two countries, the
Ganges Treaty actually sets out the techniques and mechanisms for water sharing
between India and Bangladesh.82
The objectives of this treaty are to sharing international rivers through mutual
agreement, making optimum use of water resources with regard to flood management,
irrigation, basin development, generating hydro power and establishing general
principles of law of precedent with regard to water sharing.83 This treaty set forth a
new formula for sharing river flow during the dry season, and developed a seasonal
schedule of flow rates. The principal objective of the 1996 Bangladesh-India Treaty
is to regulate the amount of water that India releases at the Farakka Barrage along
the Ganges over the next thirty years.84 It also provides that below the Barrage,
India may not further reduce the flow except in a limited amount constituting
reasonable use.85 The formula equally divides all river flow of 70,000 cubic feet
per second (cusecs) between the two nations. If there is a river flow of between
70,000 and 75,000 cusecs, Bangladesh is entitled to receive 35,000 cusecs and
India the rest; with a flow of more than 75,000 cusecs, India is entitled to 40,000

77
id
78
id
79
id
80
Treaty between the Government of the People’s Republic of Bangladesh and the
Government of the Republic of India on Sharing of the Ganga/Ganges Waters at Farakka
(12 December, 1996), available at http://www.jrcb.gov.bd/attachment/
Gganges_Water_Sharing_treaty,1996.pdf.
81
id Article IX
82
Salman and Uprety, supra note 62, 324; see also Kraska, supra note 48.
83
Ganges Treaty, supra note 80, Preamble
84
id, Article I and XII
85
id, Article III
81
KIIT Journal of Law and Society (Volume -5: No-1)

cusecs and Bangladesh receives the balance.86 The Treaty also establishes three
ten-day periods for both countries when each will get 35,000 cusecs.87
Under the Ganges Treaty, the Joint Committee is entrusted with examining any
difficulty arising out of the implementation of arrangements and of the operation of
the Farakka Barrage.88 If the Committee fails to resolve any difference or dispute,
then such difference or dispute would be referred to the Indo-Bangladesh Joint
Rivers Commission for resolution. If the Joint Rivers Commission fails to resolve
such a difference or dispute, then the Treaty directs that the matter be referred to the
two Governments which shall meet urgently at the appropriate level to resolve it by
mutual discussion.89 As such, the Treaty establishes political means, not arbitration,
as the method for resolving any difference or dispute arising out of the implementation
of the Treaty. Finally, the treaty has the provision of review at five years interval or
earlier as required by any party and based on the principles of equity, fairness and
no harm.90

Conclusion
The chronology of water sharing treaties between India and other neighboring
countries have shown significant development in the political sphere as realization
of cooperative model based on equitable water sharing, no harm principle and
documented water sharing formula have got included in the treaty text gradually.
The political understanding of countries to settle any disputes with regard to a
treaty is another aspect where the development of treaty regime has embarked on.
These are all positive aspects of the treaty making and negotiation process. The
question of national sovereignty in some cases was overlooked while dealing with
water management and other related developments. Now it is time to see whether
the established treaty regime in South Asia on the basis of equitable distribution, no
harm principle and water sharing formula can work for all the other water sharing
treaties in future.

86
id, Article II, Annexure I
87
id
88
id, Article VII
89
id
90
id, Article X
82
PATENTABILITY OF MICROORGANISMS: LAW &
POLICY IN INDIA
Victor Vaibhav Tandon*

Abstract
This paper deals with the patentability requirements in respect of
microorganisms under the Indian Law. Patents over microorganisms faced a lot
of resistance initially and got entangled in debates concerning the morality and
desirability of ‘patenting life’. However, the judgment in Diamond v. Chakrabarty
paved the way for microorganism patents. Thereafter, TRIPS specifically mandated
patents over microorganisms (exhibiting human intervention). Not surprisingly,
the law relating to patentability of microorganisms in India is shaped by its
commitments under the relevant International treaties on the subject matter,
especially the TRIPS agreement and the Convention on Biological Diversity. Patents
over Microorganisms or for that matter any biological material raise important
questions from the perspective of biodiversity law and patentability requirements
in India reflect this. Indian law with respect to microorganism patentability is in
consonance with India’s obligations under various international treaties and makes
wise use of the flexibilities granted thereunder.
Introduction
Biotechnology has emerged as one of the most promising as well as controversial
technologies since the last few decades. It finds applicability in the agricultural
sector, pharmaceutical sector and several other industrial processes. The Organisation
for Economic Co-operation and Development (OECD) defines biotechnology as
“the application of science and technology to living organisms, as well as parts,
products and models thereof, to alter living or non-living materials for the production
of knowledge, goods and services”.1 As per the Convention on Biological Diversity2,
biotechnology “means any technological application that uses biological systems,
living organisms, or derivatives thereof, to make or modify products or processes
for specific use”3. In other words, biotechnology involves the utilization of living

* The author is presently pursuing his Ph.D. from Faculty of Law, Jamia Millia Islamia
as a JRF scholar. The author’s Ph.D. focuses on Problems and Prospects in respect of
Biotech Patents in the Pharma Industry. This Research article is based on and is part of
the author’s Doctoral Research work.
1
Brigitte Van Beuzekom and Anthony Arundel, OECD Biotechnology Statistics 2009, at
9; available at http://www.oecd.org/sti/42833898.pdf (visited on January 18, 2015)
2
The United Nations Convention on Biological Diversity, 1992 available at https://
www.cbd.int/doc/legal/cbd-en.pdf (visited on January 18, 2015)
83
KIIT Journal of Law and Society (Volume -5: No-1)

organisms for producing useful new products by using methods of science and
technology. Interestingly, biotechnology itself is not new and has been there for a
long time4. It is only since the 1970s that modern biotechnology evolved and got
entangled in controversies5.
Considering the fact that biotechnology has the potential to revolutionise several
fields including food production and health care, one may wonder why it is so
controversial. Part of the controversy is because of the kind of raw materials used
in biotechnological processes and the resultant products. Biotechnological processes,
at times, lead to the production of genetically modified organisms which may harm
the environment or human health. This makes biotech products controversial.
Moreover, the definition of biotechnology makes it obvious that it relies on biological
resources or living organisms as its raw materials. This again makes biotechnology
controversial for two reasons. First is the problem of regulating access to
bioresources6. Secondly, various issues arise with regard to patentability of biotech
products since they are based on or comprise of living organisms.
This paper focuses on this last aspect, namely, the patentability of living
organisms. This will nevertheless involve dealing in part with the Biodiversity law

3
Article 2, Convention on Biological Diversity, 1992; Also, See Article 2(d), The Nagoya
Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits
Arising from their Utilization, 2010. This is a protocol to the Convention on Biological
Diversity, 1992.
4
Philip W. Grubb and Peter R. Thomsen, Patents for Chemicals, Pharmaceuticals and
Biotechnology: Fundamentals of Global Law, Practice and Strategy 274-275(Oxford
University Press, New York, 5th edn., 2010)
5
See Id. at 274-276
6
Accessing bioresources is important for biotech and pharma industries. But accessing
bioresources is controversial for certain reasons. The developing world is rich in
biodiversity or bioresources but lacks the technological ability to effectively and efficiently
utilize it. This technological ability is possessed by industrialized countries but they may
not possess the same kind of biological diversity. The industries in these developed
countries need bio-resources as raw products. They also seek IP protection for the end
products derived from bio-resources. The end products obtained from utilization of
bioresources have a high value and a well established system of protection. However, the
raw materials- bioresources and associated traditional knowledge are not, it is argued,
adequately protected. Often they are accessed without any kind of prior informed consent
from the donor community or country. Developing countries also feel that benefits arising
out of the use of their bioresources should be shared with them. It is in this context that
allegations of Biopiracy have been made against Biotech and pharma companies.
Developing countries demand a system of prior informed consent, sharing of benefits as
well as protection of their bioresources and associated traditional knowledge. The primary
international treaties dealing with access and benefit sharing are the Convention on
Biological Diversity, 1992 and the Nagoya Protocol, 2010. For a detailed account of the
problem of Biopiracy and the interface between Biodiversity and IPRs , see, M. B. Rao
and Manjula Guru, Biotechnology, IPRs and Biodiversity (Pearson Longman, New Delhi,
2007).
84
Patentability of Microorganisms: Law & Policy in India

due to the complex interaction between the patent system and biodiversity law.
Amongst living organisms, the paper focuses on microorganisms. The issues
concerning patentability of plants, animals, human clones, embryonic stem cells,
gene sequences etc. are outside the scope of this article. The issue of patenting of
microorganisms had generated much controversy initially, atleast in the United States.
But once patents were granted over microorganisms, it opened the ‘floodgates’ for
patenting of other biotech innovations and higher life forms. This paper looks at a
landmark US Supreme Court judgment regarding microorganism patentability. It
also looks at the status of microorganism patentability under TRIPS. The focus
then moves to a judgment of the Calcutta High Court that opened the door for
microorganism patentability in India. The last part of the paper focuses on the
various legal requirements that have to be taken care of as regards patenting of
microorganisms in India. Before we move on to these aspects, it will be interesting
to deal briefly with patent law.
Biotechnology Innovation & the Relevance of Patents
Biotech companies and researchers strive to protect new developments by
utilizing the patent system. Patents and other forms of Intellectual Property Rights
are recognized as ‘cornerstone’ of the bio-industry especially for the small and
medium sized enterprises (SMEs) which invest substantially in innovation7. Patents
are considered important for different industries and for protecting innovation because
of the manner in which patent law operates. Patent Law grants exclusive economic
rights to inventors(s)/ patent owner(s) to exploit the patented invention(s). A patent,
therefore, is a monopolistic right. Other than the inventor/ owner, no one can
commercially exploit a patented product or process. Others can only do so if they
have the consent of the inventor/ patent owner. Interestingly, monopolies are not
considered healthy for competition in the market. The negative impact of creating a
monopoly is set off by providing certain safeguards within the patent system and by
providing temporal limit for a patent. After the protection period is over, the invention
falls in the public domain. Intellectual Property Jurisprudence offers several
justifications for granting Patent rights.
Firstly, it is argued that patents allow inventors to recover the costs of their
skill, time and labour that go into making anything new and useful. Secondly, it
promotes research and innovation by allowing investments in crucial sectors since
the investors can recover costs and make profits due to the monopoly protection
granted to them8. Thirdly, it prevents copying and misappropriation of labour of

7
Paul Haycock, “Patents in Life Sciences” 6 JIPR 479-486 (November 2001) at 480
8
However, it does not mean that merely having a patent system will increase innovation
nor does it imply that a stronger patent system will lead to more innovation. N. S.

85
KIIT Journal of Law and Society (Volume -5: No-1)

innovators by others. Fourthly, patents enable disclosure of inventions. In the absence


of patent system, inventors may very well keep their inventions as trade secrets for
an infinite amount of time. Patent system awards monopolistic protection and
exploitation rights in return of disclosure of invention and the best method of
performing the same. Once the invention is in the public domain, others can simply
replicate the process or product9. Therefore, complete disclosure of the invention in
the patent application is an important aspect for grant of patent.
However, being monopolistic rights to commercially exploit knowledge goods,
patents have always remained problematic. They are seen as reducing access to
technology and are particularly problematic in the field of agriculture, food sector
and pharma industry10. Often, patent system is blamed for the misappropriation of
biological resources of developing countries as well as for the rising costs of
pharmaceutical drugs and other essential items. It must be noted that Patent Law
strives to strike a balance between public welfare and private interests of the
inventors/ patent owners. There are elaborate mechanisms to determine whether a
product or process is patentable or not. There are also several mechanisms to check
the abuse of patents by the inventors/ owners. It must also be noted that patent law
had evolved primarily to protect mechanical and chemical inventions. Protection of
new technologies like biotechnology within the patent system is fraught with several
issues and challenges. These issues and challenges first came to the forefront in the
US Supreme Court case discussed in the following section. The case dealt with
patentability of microorganisms.
Microorganism Patentability: From Chakrabarty To TRIPS & Dimminaco
Microorganisms are living organisms which are invisible to the naked eye and
reveal themselves only under a microscope. Microorganisms may include “bacteria,
viruses, viriods, eukaryotic single cell and multi-cellular microorganisms like yeast,
protozoa, fungi, moulds and algae and cultured plant and animal cells”11. Interestingly

Gopalakrishnan and T. G. Agitha have stated that there is no empirical evidence to prove
that a strong IP system necessarily fosters innovation. See, N. S. Gopalakrishnan and T.
G. Agitha’s Comments on the First Draft of the National IPR policy of the IPR Think
Tank available at http://spicyip.com/wp-content/uploads/2015/02/National-IPR-Policy-
of-IPR-Think-Tank-Comments-N.S.-Gopalakrishnan-and-T.G.-Agitha.pdf (visited on
February 27, 2015)
9
For a more detailed discussion on the rationale of the patent system, See, P. Narayanan,
Patent Law 1-5 (Eastern Law House, Kolkata, 4th edn, 2010 reprint)
10
A detailed discussion of these aspects of patent law is beyond the scope of this article.
However, for issues concerning patents and access to pharma drugs, See, Cynthia M. Ho,
Access to Medicine in the Global Economy (Oxford University Press, New York, 2011)
11
Sabuj Kumar Chaudhuri, “Microbial Biopiracy in India: How to Fight Back?” 8 JIPR
389-399 (September 2003) at 390
86
Patentability of Microorganisms: Law & Policy in India

the term itself has not been defined in any treaty or law relating to patenting of
microorganisms. Microorganisms have been used for quite some time for a number
of purposes- in brewing, wine making, baking etc. They have been used in ethanol
production via fermentation and in the production of industrial chemicals such as
acetic acid12. It has been stated that the antibiotics industry “was based upon isolation
of products from selected strains of microorganisms and …many are still made
from microorganisms either found in nature or artificially mutated” 13.
1. The Chakrabarty Case
Considering that microorganisms are so valuable in different sectors, it is not
surprising that the issue of their patentability was raised in the US in 1972 when
Ananda Chakrabarty applied for a patent in respect of “microorganisms having
multiple compatible degradative energy-generating plasmids and preparation
thereof”14. Basically, Chakrabarty claimed patent over a genetically modified live
organism (a bacteria) that could break down components of crude oil and thereby
help in the treatment of oil spills. This ability was lacking in naturally occurring
bacteria. Interestingly, it has been reported that, during that period, it was the practice
of the United States Patent and Trademark Office (USPTO) to refuse patents over
living systems or living organisms15. These were not regarded as patentable subject
matter regardless of whether there was any human intervention or not16.
In keeping with its practice, the patent was refused by the USPTO. The applicant
lost the appeal in the Board of Appeals but succeeded in the United States Court of
Customs and Patent Appeals. Thereupon, Sidney Diamond, Commissioner, USPTO
approached the United States Supreme Court. The matter generated considerable
debate at the time. Ethical, ecological, moral and other questions were raised. There
was fear regarding the impact of the case on future research and investments in the
then nascent biotech industry.17 Those in favour of granting patents over the
microorganism (and therefore, generally over biotech innovations) argued that it
would foster investments in the sector and provide an incentive for innovation.

12
Supra 4 at 274-275
13
Ibid.
14
U.S. Patent No. 4,259,444 dated March 31, 1981, Assignee General Electric Company,
Inventor Ananda M. Chakrabarty. The document is available at http://patft.uspto.gov/
netacgi/nph-Parser? Sect1= PTO1&Sect2= HITOFF&d=PALL&p= 1&u=%2
Fnetahtml%2 FPTO%2 Fsrchnum.htm&r=1&f=G&l=50&s1=4259444.PN.&OS=PN/
4259444&RS =PN/4259444 (visited on January 20, 2015)
15
Matthew Rimmer, Intellectual Property and Biotechnology: Biological Inventions
24-25 (Edward Elgar, Cheltenham, Glos, UK, 2008)
16
See, Ibid.
17
An illuminating history and analysis of the debates surrounding the case is presented
by Matthew Rimmer, See, Id. p-24-49
87
KIIT Journal of Law and Society (Volume -5: No-1)

Those against the grant of patent argued that it would lead to patenting of higher
life forms and reduce nature to a commodity that can be modified and made subject
matter of private property. It was also felt that the legislature and not the judiciary
should be the one to decide whether microorganisms (and by extension biotechnology
inventions) are patent worthy or not18.
The US Supreme Court, by a majority of five to four, held that the
microorganism as claimed in the application was patentable19. The Court noted that
“anything under the Sun that is made by man” is patentable, thus paving the way
for USPTO to take the lead and grant patents in respect of applications concerning
genetically modified microorganisms and other biotech innovations. The decision
had wider ramifications. It promoted biotechnology innovation and subsequent
breakthroughs in the US. Investors knew that backing innovation in the biotech
sector was going to yield substantial returns since inventions could be protected by
patents. Rimmer has noted that post this judgment, USPTO “granted backlog of
patent applications in respect of genes and gene sequences” 20. From thereon the
boundaries of patentable subject matter have been expanded so much that it is
stated that in the US atleast “it is not clear whether the patent system has any
subject matter boundaries at all”21.
In other countries such as UK, Australia, Germany and Canada, microorganisms
came to be considered as patent eligible provided the criteria of patentability (novelty,
usefulness, non-obviousness) were met22. Genetically engineered animals have also
been considered eligible for patents23. Infact, isolated or purified form of natural
products were also gradually considered eligible for grant of patent in various
jurisdictions24. The patenting of higher forms does remain controversial even though
microorganism patents have become the norm especially after the TRIPS agreement.
The agreement specifically mandates that once the other conditions are satisfied,
microorganisms should be considered patent eligible.

18
See, Id. at 31
19
Diamond v. Chakrabarty 447 US 303 (1980)
20
Supra 15 at 43
21
Rebecca Eisenberg, “The story of Diamond v. Chakrabarty: technological change and
the subject matter boundaries of the patent system” in Jane Ginsburg and Rochelle Cooper
Dreyfuss (eds.), Intellectual Property Stories 327-357 (Foundation Press, New York,
2006) at 357
22
See, Supra 15 at 45
23
For example, The Harvard Oncomouse
24
It must be noted that patents are generally available only for inventions and not for
mere discoveries. It has been argued that even under the TRIPS agreement there is no
obligation to consider as patentable those substances which are found in nature irrespective
of the fact that they may be isolated or claimed in a purified form. See, Carlos M Correa,
“Intellectual Property Rights under WTO and Animal Genetic Resources” 7 JIPR 7-23
(January 2002)
88
Patentability of Microorganisms: Law & Policy in India

2. Microorganism patentability under TRIPS


The Agreement on Trade Related Aspects of Intellectual Property Rights
(TRIPS)25 lays down minimum common standards for Intellectual Property
protection and enforcement. All the member states of the World Trade Organisation
have to comply with the provisions of TRIPS. The aim of TRIPS is to achieve
uniformity in the protection and enforcement of Intellectual Property. This was
done by requiring that the IP laws of member states are at the very least TRIPS
compliant. A member state can opt for norms stronger than those mandated under
TRIPS but weaker IP laws are not permitted.
TRIPS requires all member states to provide product as well as process patents
for inventions “in all fields of technology, provided they are new, involve an inventive
step and are capable of industrial application”26. This necessarily implies that member
states have to provide for patent protection in fields, such as, inter-alia,
pharmaceuticals and biotechnology. It is also clear that mere discoveries are excluded.
Patents are to be granted only over inventions provided that the invention satisfies
other criteria such as that of novelty (new), inventive step (non-obviousness) and
industrial application (usefulness). TRIPS also provides that,
“Members may exclude from patentability inventions, the prevention within
their territory of the commercial exploitation of which is necessary to
protect ordre public or morality, including to protect human, animal or
plant life or health or to avoid serious prejudice to the environment, provided
that such exclusion is not made merely because the exploitation is prohibited
by their law”27
The exclusions on the aforementioned grounds have important implications
for biotech patents including patents over microorganisms. Any genetically modified
organism should be precluded from patent protection if the same can be injurious to
the environment or to the health of other living species. Likewise, inventions can be
denied patent protection if the same are against ordre public or morality. These two
terms have variable content. ‘Ordre public’ does not have a generally accepted
meaning. Likewise, ascertainment of ‘morality’ is dependent on social values that
change from place to place and time to time. There can not be a fixed concept of

25
TRIPS Agreement is Annexure 1C of the Agreement establishing the World Trade
Organisation (WTO). It deals with seven kinds of Intellectual Property Rights, namely,
Copyright and Related Rights, Trademarks, Geographical Indications, Industrial Designs,
Patents, Layout-Designs (Topographies) of Integrated Circuits and Undisclosed
Information (Trade Secrets).Text of the agreement is available at http://www.wto.org/
english/docs_e/legal_e/27-trips.pdf (visited on January 21, 2015)
26
Article 27.1, TRIPS, 1994
27
Id. Article 27.2
89
KIIT Journal of Law and Society (Volume -5: No-1)

moral and immoral28. This offers considerable dexterity to member states to exclude
from patentability certain kind of inventions like human clones and gene sequences.
The most important provision relating to microorganism patentability is Article
27.3(b) which specifically mandates that patents should be granted over
microorganisms (this is subject, ofcourse, to the clauses mentioned above). It states,
inter-alia, that,
“Members may also exclude from patentability …
(b) Plants and animals other than microorganisms, and essentially biological
processes for the production of plants or animals other than non-biological and
microbiological processes”
In other words, member states are free to exclude plants and animals but not
microorganisms. The article further provides that in respect of plant varieties,
protection ‘shall’ be provided by way of patents or another sui generis system29.
India is a member of WTO. Therefore, it had to ensure that its IP laws were TRIPS
compliant. As a consequence, it had to respect the mandate of Article 27. The rest
of the paper deals with the current state of Indian law and policy regarding
microorganism patentability. But before that it will be worthwhile to deal with a
landmark Indian judgment that came in 2002 on this issue.
3. The Dimminaco Matter: Showing the Way Forward
Much before the Indian Patent Act, 1970 came into its present form; a landmark
judgment in the field of biotech patentability came from the Calcutta High Court in
2002 in Dimminaco A.G. v. Controller of Patents and Designs & Others 30.
Dimminaco can possibly be described as the Indian equivalent of the Diamond
matter. The judgment came at a time when the Indian Patents Act was still not fully
TRIPS compatible. Product patents in the field of, inter-alia, pharmaceuticals were
not granted. Only the processes or methods of manufacture of pharma products
were patentable and not the product itself. In Dimminaco, the patent application
related to a “process for the preparation of infectious Bursitis Vaccine”. The same
had been refused by the Patent office merely on the ground that the same did not
qualify as an invention since it related to a process whose “end product claimed a
living organism”.

28
For a detailed discussion on the exclusions to patentability permitted under Article
27.2, TRIPS, See, Carlos M. Correa, Trade Related Aspects of Intellectual Property
Rights: A Commentary on the TRIPS Agreement 287-291 (Oxford University Press, New
York, 2007)
29
Consequently, India enacted The Protection of Plant Varieties and Farmers’ Rights
Act, 2001
30
(2002) I.P.L.R. July 255 (Calcutta H.C)
90
Patentability of Microorganisms: Law & Policy in India

The petitioner contended that there was no bar under the then existing patent
law against the grant of patent for a process which led “to an end-product, the
manufacture of which involves the live virus”. It was argued that the grant was
denied merely on the basis of administrative policies of the Patent office and that
the same can not be allowed to prevail over the statutory norms. The court noted
that the vaccine as claimed in the application “is useful for protecting poultry against
the contagious Bursitis infection”31. It was novel as well as useful. The Court was
not convinced by the Defendant’s stand that only a non-living, inanimate entity
could be classified as a manufactured ‘thing’/’substance’ and that the “end product
must satisfy the meaning of manufacture which rules out any living entity” 32.
The Court noted in its judgment that,
“…the controller erred himself in law by holding that merely because the end
product contains a live virus, the process involved in bringing out the end product
is not an invention. The dictionary meaning of the word manufacture does not
exclude the process of preparing a vendible commodity which contains a living
substance and in a case like this where there is no statutory meaning of manufacture,
the dictionary must be accepted.” 33
Allowing the appeal, the Court directed the Patent Office to reconsider the
petitioner’s application for grant of patent in the light of the observations made in
the judgment. This matter became an authority on microorganism patentability in
India. In 2005, the Patents Act was suitable amended to meet the ‘TRIPS standard’.
Patentability Of Microorganisms: The Requirements Under The Current Indian
Law
1. Requirements under The Patents Act
The Indian Patent law as it stands today is fully TRIPS compliant. In consonance
with Article 27.3 (b) of TRIPS, microorganisms are now patentable in India provided
that they satisfy the criteria of patentability as set out under the law. Patents are
granted for inventions alone. The Indian Patents Act defines an invention as “a new
product or process involving an inventive step and capable of industrial
application”34. This definition gives us the three basic criteria for grant of patent.
There should be a product or process which should be, firstly, new.35 Secondly, the
31
Ibid.
32
Ibid.
33
Ibid.
34
Section 2(1) (j), Patents Act, 1970
35
Id. Section 2(1) (l); It states, “New Invention means any invention or technology which
has not been anticipated by publication in any document or used in the country or elsewhere
in the world before the date of filing of patent application with complete specification,
i.e., the subject matter has not fallen in public domain or that it does not form part of the
state of the art.”
91
KIIT Journal of Law and Society (Volume -5: No-1)

product or process should exhibit an inventive step36 and thirdly, it should be capable
of industrial application37. Each invention has to satisfy these three criteria in order
to be patent eligible.
Novelty or ‘newness’ of an invention is determined with respect to the prior art
or existing state of knowledge. Anything which is in public domain, is part of the
state of art, is published or is used anywhere loses its novelty and ceases to be
patent eligible. A non-exhaustive set of circumstances that destroy novelty is provided
under the Patents Act38. The second requirement, namely, the presence of an inventive
step is considered to be analogous to the non-obviousness requirement. Under Indian
law, the invention should exhibit technical advance over existing knowledge or
have economic significance and it should also not be obvious to a person skilled in
the relevant field. None of these concepts are defined in the Act itself nor are guidelines
given. Therefore, the content or guidelines have come from judicial pronouncements39.
The third requirement- capable of industrial application can be considered analogous
to usefulness40.
This is not all. A further bar is provided by section 3 and section 4 of the
Patents Act. Section 4 makes inventions relating to atomic energy non-patentable.
Section 3 provides a list of what does not qualify as an invention under the Indian
Patent Law. As a matter of fact, if the patent application claims anything that falls
under any one or more of the clauses 3(a) to 3(p) or section 4, grant of patent is
immediately ruled out even if the other criteria are some how satisfied. Therefore,
Section 3 and Section 4 basically limit the boundaries of patentable subject matter
under Indian Patent Law.
The most relevant clauses of Section 3 with regard to microorganism
patentability are discussed here. It must be noted that other clauses of section 3
must also be taken into consideration to the extent they may be applicable. In
consonance with TRIPS, section 3 (j) excludes “plant and animals in whole or any
part thereof other than micro-organisms but including seeds, varieties and species
and essentially biological processes for production or propagation of plants and

36
Id. Section 2(1)(ja); It states, “Inventive step means a feature of an invention that
involves technical advance as compared to the existing knowledge or having economic
significance or both and that makes the invention not obvious to a person skilled in the art”.
37
Id. Section 2(1) (ac); It states, “Capable of industrial application, in relation to an
invention, means that the invention is capable of being made or used in an industry”.
38
For a detailed discussion, See, Kalyan C. Kankanala, Arun K. Narasani et. al., Indian
Patent Law and Practice 25-32 (Oxford University Press, New Delhi, 2010)
39
For details, See, Id. 32-42
40
However, Carlos Correa has argued that ‘useful’ is a broader concept than industrial
applicability. Under the former, research tools and business methods might also be covered
but these will not come under the concept of ‘industrial application’. See, Supra 28 at 278
92
Patentability of Microorganisms: Law & Policy in India

animals”. This clause reinforces the view taken in Dimminaco and makes
microorganisms patentable in India.
Biological inventions which tend to raise morality and public order concerns
are excluded by virtue of section 3(b)41. A genetically modified microorganism that
may harm the environment or cause serious prejudice to human, animal or plant life
or health shall be liable to be excluded from patentable subject matter by virtue of
this section. It must be noted that considerations with regard to morality and public
order are subjective and no fixed criteria can be laid down with regard to the same.
The Indian Patent Office offers the following examples of inventions which are
barred by this clause- “process for cloning of human beings or animals, use of
human embryos for commercial purposes etc” 42.
It must also be noted that some kind of human intervention must be there in the
microorganism for which patent protection is claimed. Merely discovering the
microorganism will not entitle any one to a patent under Indian patent system. This
is for the simple reason that patent law rewards ingenuity and protects inventions.
It is not applicable to discoveries. This is reflected in section 3 (c) which excludes
“the mere discovery of a scientific principle or the formulation of an abstract theory
or the discovery of any living thing or non-living substances occurring in nature”. It
must be noted that mere isolation of microorganisms from its natural surrounding
will also not entitle anyone to a patent in India43. This appears to be contrary to the
practice in most developed countries but is nevertheless absolutely in conformity
with TRIPS. Therefore, with respect to Indian law, patents over microorganisms
should necessarily be understood as patents over microorganisms that involve some
kind of human intervention (or genetically modified microorganisms).
In addition to these requirements, the procedural requirements with regard to
specification/ disclosure of the invention should also be satisfied. This is because
the purpose of patent law is to ensure disclosure of the invention as a price for
protection on a quid pro quo basis. Under the Indian Patent Law, specifications are
of two kinds- provisional and complete. A provisional specification should necessarily
be followed by a complete specification within a period of twelve months else the
application for patent is deemed to have been abandoned44. Provisional and Complete

41
Section 3 (b), Patents Act, 1970 excludes “an invention the primary or intended use or
commercial exploitation of which could be contrary to public order or morality or which
causes serious prejudice to human, animal or plant life or health or to the environment”.
42
See, Guidelines for Examination of Biotechnology Applications for Patent, Office of
the Controller General of Patents, Designs and Trade Marks, Government of India, March
2013 available at http://www.ipindia.nic.in/whats_new/biotech_Guidelines_25 March
2013. pdf (visited on January 24, 2015)
43
Ibid.
44
Section 9 (1), Patents Act, 1970
93
KIIT Journal of Law and Society (Volume -5: No-1)

Specifications should contain title of the invention, its subject matter and should
describe the invention45. Also, drawings and/ or models of the invention may be
supplied to the Patent Office for the purpose of imparting clarity46.
A complete specification should fully describe the invention47, its operation or
use , the method of performing the invention49 as well as the best method for
48

performing the invention that is known to the inventor50. It should also comprise of
claims which basically define the scope of the invention51. It should provide technical
information about the invention in the abstract 52. The basic purpose of the
specification is that the invention should be completely described so that once it
falls into the public domain it can be easily replicated by others. It also ensures that
others know what the patent covers so that they can avoid violating the same during
the term of patent. The specification is filed as part of an elaborate procedure of
filing the patent application. The norms regarding the filing process are covered
under the relevant provisions of The Patents Act, 1970 as well as the Patents Rules,
2003 (as amended till 2014).
As regards inventions related to microorganisms, apart from the general
requirements discussed above, two special requirements also exist. These
requirements should be met while filing the patent application. These requirements
relate to all biological or biotechnology inventions. The first of these is due to The
Biodiversity Act and the second is due to the Budapest Treaty.
2. The Biological Diversity Act & additional requirements for microorganism
patentability
India is a party to the Convention on Biological Diversity, 1992. It is also
incredibly rich in biodiversity and has had the bitter experience of being at the
receiving end of Biopiracy of its biological resources and valuable traditional
knowledge53. As a consequence, it is not surprising that the Biological Diversity
Act, 2002 was enacted for the following purposes-firstly, “the conservation of
biological diversity”; secondly, “sustainable use of its components” and lastly, “fair

45
Id. Section 10 (1)
46
Id. Section 10 (2) and Section 10 (3)
47
Id. Section 10 (4) (a)
48
Ibid.
49
Ibid.
50
Id. Section 10 (4) (b)
51
Id. Section 10 (4) (c)
52
Id. Section 10 (4) (d)
53
For details regarding instances of Biopiracy from India, See, Srividhya Ragavan,
“Protection of Traditional Knowledge”, 2(2) Minn. IP Law Rev. 1 (2001). See also, the
segment on Biopiracy at the TKDL website available at http://www.tkdl.res.in/tkdl/
langdefault/common/Biopiracy.asp?GL=Eng (visited on February 8, 2015)
94
Patentability of Microorganisms: Law & Policy in India

and equitable sharing of the benefits arising out of the use of biological resources”
and for connected matters54.
The Biological Diversity Act has several provisions which are relevant for
patentability of biological resources including microorganisms. The Act defines
biological resources as “plants, animals and microorganisms or parts thereof, their
genetic material and by-products (excluding value added products) with actual or
potential use or value”55. But human genetic material is specifically excluded56.
The Act makes a distinction between Indian nationals and entities and non-Indian
individuals and entities57. The Act also establishes a three tier structure- a National
Biodiversity Authority at the Centre58, State Biodiversity Boards59 and Biodiversity
Management Committees at the local level60. As regards non-Indian individuals or
entities, ‘previous approval’ of the National Biodiversity Authority is required for
accessing Indian Biological Resources for the purposes of research, commercial
utilization, bio-survey or bio-utilisation61. On the other hand, Indian nationals and
entities have to merely give prior intimation to the State Boards for accessing Indian
biological resources for similar purposes62.
This basically implies that any foreign entity has to take relevant permissions
for accessing microorganisms found in India. This becomes even more important
considering the mandate of section 6 of the Biological Diversity Act which requires
every one to take ‘previous approval’ of the National Biodiversity Authority before
applying for IPRs (including patents) on any invention based on Indian Biological
Resource63. While granting such approval, the National Biodiversity Authority can
impose, inter-alia, benefit sharing fee.64
This basically imposes two other requirements with regard to patents related to
microorganisms. If the microorganisms are obtained from India then the same can
be patented only if the requirements of Section 6, Biological Diversity Act are
satisfied. Additionally, legitimate access requirements should also be satisfied
otherwise the penal provisions of the Act will be activated65. These requirements

54
Introductory Note, Biological Diversity Act, 2002
55
Id. Section 2(c)
56
Ibid.
57
See, Id. Section 3 (2), for what are not considered to be Indian nationals or Indian
entities.
58
See, Id. Section 8
59
See, Id. Section 22
60
See, Id. Section 41
61
Id. Section 3(1)
62
Id. Section 7
63
See, Id. Section 6 (1)
64
See, Id. Section 6 (2)
65
See, Id. Section 55
95
KIIT Journal of Law and Society (Volume -5: No-1)

are also reflected in the Indian Patent Law. In filing the application for patent, a
Declaration has to be made regarding use of biological material from India. Also,
“the necessary permission from the competent authority” has to be communicated/
submitted in the Patent Office before the grant of patent66. Here the competent
authority refers to the authorities under the Biological Diversity Act, 2002.
A requirement of disclosure of “source and geographical origin of the biological
material in the specification” is also mandated by clause (ii) D of the proviso to
Section 10 (4) of the Patents Act. Infact, considering the importance of biological
resources and the problem of Biopiracy, the National Biodiversity Authority is
given the function of opposing any ‘wrong’ patent or erroneous grant of other IPRs
outside India if the same is/ are based on Indian biological resources including
microorganisms67. These requirements, it is hoped, will help combat the Biopiracy
of Indian biological resources in general and microbial Biopiracy in particular.
Infact, India has been at the receiving end of microbial Biopiracy as well 68. The
current legal framework is designed to prevent this and ensuring that proper approvals
are sought before utilizing bioresources. It must also be noted that the present
concerns with regard to biotech patents relate more to ensuring prior informed
consent for access of biological material and benefit sharing rather than focusing
on ethical or moral aspects69.
The Budapest Treaty & Deposit Requirements for microorganism related patent
applications
Budapest Treaty70 regulates the deposit of microorganisms as part of the patent
procedure. Under its substantive provisions, it requires contracting states to
necessarily recognize the deposit of microorganisms with any International

66
See Form 1 as incorporated in The Patents Rules, 2003 (as amended till 2014).
67
See, Section 18 (4), Biological Diversity Act, 2002
68
A list of microbial piracy cases from India before 1992 is provided by Sabuj Kumar
Chaudhuri. See, Supra 11 at 392
69
See, Jonathan Cruci, “The New Challenges to the International Patentability of
Biotechnology: Legal Relations between the WTO Treaty on Trade Related Aspects of
Intellectual Property Rights and the Convention on Biological Diversity” 2 Intl’ Law &
Mngmnt. Rev. 1-42 (Winter 2005) at 35. Cruci has stated that India and Brazil had
sought the introduction of an additional patentability requirement under TRIPS at the
TRIPS Council. The fourth requirement is providing proof of Prior Informed Consent
for access. This, it is argued, shall ensure benefit sharing and will prevent “erroneous
issuance of patents”.
70
The Budapest Treaty on the International Recognition of the Deposit of Microorganisms
for the Purposes of Patent Procedure, 1977 as amended in 1980 available at http://
www.wipo.int/treaties/en/text.jsp?file_id=283784 (visited on January 25, 2015).There is
also a Regulation accompanying the treaty, available at http://www.wipo.int/edocs/lexdocs/
treaties/en/budapest/trt_budapest_003en.pdf (visited on January 25, 2015)
96
Patentability of Microorganisms: Law & Policy in India

Depository Authority (hereinafter, IDA) where such deposit is a requirement for


patent procedure71. The contracting state may ask for copy of the receipt of the
deposit72 as part of the patent procedure.
It also prescribes the qualifications required by any depositary institution to
qualify as an IDA73. The requirements are, inter alia, that the institution has to be
located on the territory of a Contracting State and that state has to give assurance
that the Authority shall comply with all the necessary norms specified in the treaty
for being recognized as an IDA. If the requirements are not complied with then the
status as an IDA can also be terminated74. At present there are 79 contracting states
and 42 International Depositary Authorities under the Treaty75. India is a contracting
state. There are two International Depository Authorities in India76, namely, the
Microbial Type Culture Collection and Gene Bank, Chandigarh and the Microbial
Culture Collection, Pune.
As a consequence of the Budapest Treaty, an application for patent over a
micro-organism will also have to fulfill another requirement under the Indian Patent
system. If a biological material is mentioned in the specification but the same can
not be sufficiently described and the material is also not available to the public,
then the material (for eg: Microorganism) has to be deposited at an IDA under the
Budapest treaty77. Moreover, the deposit has to be made “not later than the date of
filing the patent application in India” and a reference of the same has to be made in
the specification78. Also, the applicant has to ensure that “all the available
characteristics of the material required for it to be correctly identified or indicated
are included in the specification including the name, address of the depository
institution and the date and number of the deposit of the material at the institution”79.
This requirement aids sufficiency of disclosure. It has been argued that in respect of
biological materials and microorganisms which are subjected to human intervention
or are “improved”, it is usually not possible to verbally describe the invention so
that others may replicate the same. In such cases, a written disclosure is not enough

71
Article 3(1) (a), Budapest Treaty, 1977
72
Id. Article 3(1) (b)
73
Id. Article 6
74
Id. Article 8
75
http://www.wipo.int/export/sites/www/treaties/en/documents/pdf/budapest.pdf (visited
on January 25, 2015)
76
See, http://www.wipo.int/export/sites/www/treaties/en/registration/budapest/pdf/
idalist.pdf (visited on January 25, 2015)
77
Section 10 (4) proviso (ii), Patents Act, 1970
78
Id. Section 10 (4) proviso (ii) A
79
Id. Section 10 (4) proviso (ii) B
97
KIIT Journal of Law and Society (Volume -5: No-1)

and deposit of the microorganism is required as part of patent procedure to sufficiently


describe the subject matter of patent/ patent application80.
Concluding Remarks
It is clear that the patentability requirements for microorganisms under the
current Indian law are quite elaborate and complex. Considering the nature of the
subject matter, this is not surprising. The patentability of microorganisms had in
the past raised a number of issues. These issues concern the ‘patenting of life’ in
general. Today, patents over microorganism are the norm in the biotech industry.
The issues with regard to patents over higher life forms are still quite complex and
a bone of contention between different interest groups. However, atleast with regard
to the patenting of microorganisms, Indian law is at par with the global norms and
the requirements are geared to promote as well as protect innovation in the microbial
biotech industry. A microorganism is patent eligible in India as long as human
intervention is exhibited (other than merely isolating it) and the other criteria are
satisfied. However, there is a myth that the Indian Patent law is anti-innovation or
that it does not fully protect the interests of the innovators. This is far from the
truth. So far our Patent and other IP related laws are in consonance with our
international treaty obligations. The law attempts to strike a balance between different
competing interests and only makes use of the flexibilities that are granted under
the relevant treaties. This is clear from the elaborate microbial patenting requirements
discussed above. The need is to create IP awareness so as to dispel myths regarding
Indian patent law and patentability requirements.

80
S Sekar and D. Kandavel, “Patenting Microorganisms: Towards Creating a Policy
Framework” 7 JIPR 211-221 (May 2002) at 216
98
CARBON CREDITS – ISSUES AND CHALLENGES
Kyvalya Garikapati1

Abstract
To meet the challenge of climate change the national governments and the
International Organizations has to explore the options for placing their economies
on low carbon, sustainable development paths has to be focused. They have to
take ex-ante measures and economic instruments, including the establishment of
international carbon markets, sectoral emissions trading regimes, renewable
incentivization schemes such as feed in tariffs, carbon budgets and innovative
insurance schemes.
Carbon Markets are the reflection of the Climate change caused by the
greenhouse gas (GHG) emissions nationally and internationally after several
attempts for mitigating the GHG. Two types of markets we can see one is compliance
market, made up of emitters who are under obligation to reduce their emissions
and voluntary market, in which the organizations they themselves voluntarily reduce
their carbon emissions.
This monograph basically talks about the role of carbon credits in reducing
the carbon emissions and what is the impact of economy and the current trends
relating to this. The main object of this monograph is to highlight the economic
strategies of carbon markets.
Introduction: Climate Change and its Impacts
Since 1990, every year at least twenty weather events have been globally which
can be significantly categorize as natural catastrophes by re insurance sector.
According to a sizeable community the above phenomena are but some examples of
the ways in which the climate change is dragging the focus of the individuals,
governments, financial sector. The impact of climate change is global in scope
even though its effect is geographically varied. In the view of Stern Review, ‘climate
change presents very serious global risks, and it demands an urgent global response’.2
A deep analysis has been made basing on the scientific evidence of climate
change in the past two decades by the Intergovernmental Panel for Climate Change
(the IPCC). The World Meteorological Organization (WMO) along with United
Nations Environment Programme (UNEP) created IPCC in 1988. The membership

1
Assistant Professor, KIIT School of Law, KIIT University, Bhubaneswar
2
The Stern Review, The Economics of Climate- Executive Summary, HMSO, October
2006, 1
99
KIIT Journal of Law and Society (Volume -5: No-1)

into IPCC is open to all member countries of WMO and UNEP and currently it
consists of so many specialists in this field nominated by their governments and
they are functioning and participating in the organization. The member of the
Kyoto Protocol signatories like UK, Italy, France and Netherlands and non signatories
including US are represented in the IPCC in the all levels. The main object of
IPCC is to asses comprehensively, objectively and transparently basing on the
available scientific, technical and socio-economic information on climate change
from around the world. After such analysis it delivers it reports which are known
as Assessment Reports. Assessment reports are consists the work and assessment
of Working Group I, II, III. These reports are based on the best scientific, technical
and socio economic information available in peer reviewed literature which ever
available internationally.3 These assessments are basically aimed at policy relevant
but not policy-prescriptive.
In the Third Assessment Report, the IPCC after looking onto the results of so
many studies carried out globally gave a report of summary of all such studies.4
Climate Change and its Origins
The origins of such climate change are of two kinds, anthropogenic origins and
natural origins. The UKCIP Report,5 emphasized upon the natural causes of the
current trend of global warming. The human influence on the global climate is of
two fold, the increased concentration of ‘greenhouse gases’6 like CO2, methane and
nitrous dioxide in the lower atmosphere effect upon the climate, on the other hand
by the contrast, aerosols having a cooling effect on the climate.
The list of contributors to the phenomenon of climate change includes the human
influence and the natural greenhouse effect but the accurate contribution from each
cannot be distinguished. IPCC’s Fourth Assessment report anyhow clarified the
doubts relating to the contribution of these two. And it insisted upon the view that
the most of the increase in the global temperatures very likely due to an increase in
anthropogenic greenhouse gas concentrations. The usage of the words ‘likely’ ‘very
likely’ in the IPCC’s Report III and IV respectively indicated the degree of variance
between these two. Notable conclusions can be drawn by such usage of words.

3
See for the Reports <www.ipcc.ch>
4
J.T.Houghton et al. (eds), Climate Change 2001: The Sceintific Basis Cambridge
University Press, 2001.
5
UK Climate Impacts Programme (UKCIP), Climate Change Scenarios for the United
Kingdom, the UKCIP02 Scientific report, DEFRA, April 2002, 8.
6
For the meaning of green house gases see http://www.oxforddictionaries.com/definition/
english/greenhouse-gas
100
Carbon Credits – Issues and Challenges

Effects of climate change: current and future


If the global warming continues what would be the effect on the climate change
that has to be considered with a greater detail. It is quite difficult to volume the
future greenhouse gas emissions and correspondingly how temperature will raise
such impacts can only be predicted by going through number of factors like
meteorological and biological data and socio economic, ethnic and political factors.
The assessment regarding the future greenhouse gases emission has been identified
by the IPCC’s Fourth Report7 in the name of SRES (Special Report on Emissions
Scenarios) the six scenarios,8 each of them based on the several assumptions
regarding the increase in the human population, changes in the consumption and
the dependence on fossil fuels, etc. The effects had been shown in figures in the
IPCC’s Reports the predictions are also mentioned there.
After briefly looking into the Climate Change and its effects now we shall
see in the next Chapter the different modes of methods to reduce the greenhouse
gases emission.
Carbon Credit as an effective mode of reducing emissions
The origin of Carbon Credit
With an objective9 of stabilizing the greenhouse gases in 1992, United Nations
Framework on Climate Control Change (UNFCCC) was established in Rio, Brazil.
The basis for such objective was the outcome of the IPCC Reports on climate
change. In 1995, the members of UNFCCC realized that the provisions in the
Convention were not adequate. They started rebuilding some principles to strengthen
after two years they adopted the Kyoto Protocol on December 11, 1997 due to
several ratification processes it came into force on 16th February 2005, which
binds the members to emission reduction. Now there are 195 parties to UNFCCC
and 192 parties to Kyoto Protocol.10 KP (Kyoto Protocol) recognizes the developed
countries11 as they are largely responsible for the high levels of GHG (Green House
Gases) and bind them for remission reduction by setting targets.
7
For IPCC Reports see http://www.ipcc.ch/ipccreports/tar/
8
For RES see http://www.ipcc.ch/ipccreports/sres/emission/index.php?idp=0
9
Article 2 of UNFCCC Objective The ultimate objective of this Convention and any
related legal instruments that the Conference of the Parties may adopt is to achieve, in
accordance with the relevant provisions of the Convention, stabilization of greenhouse
gas concentrations in the atmosphere at a level that would prevent dangerous
anthropogenic interference with the climate system. Such a level should be achieved
within a time-frame sufficient to allow ecosystems to adapt naturally to climate change,
to ensure that food production is not threatened and to enable economic development to
proceed in a sustainable manner. For further details see http://unfccc.int/files/
essential_background/background_publications_htmlpdf/application/pdf/conveng.pdf
10
For details see http://unfccc.int/resource/docs/convkp/kpeng.pdf
101
KIIT Journal of Law and Society (Volume -5: No-1)

So the space to pollute was limited, as it become scarce it commands a price


that means the GHG particularly carbon dioxide had become a new commodity KP
began to internalize the un priced externality. Based on the trade emissions permits,
KP countries bound to targets largely through domestic action and they can also
meet the targets through three ‘market based mechanisms’ i.e International Emissions
Trading, Clean Development Mechanism and Joint implementation. These
mechanisms are helpful to the countries in stimulating green investment and help
them in meeting their emission targets in a very cost effective way. KP has also
promoted and insisted the countries to legislate and frame policies to meet their
targets and even encouraged the formation of carbon market.
What is a Carbon Credit?
If we look into the dictionary meaning or definition given by several dictionaries
those definitions said that carbon credit is a permit which allows a country to emit
one tonne of carbon, and carbon credit can be traded in the international financial
markets, carbon credits are allotted to the countries those who emit lesser than their
limit of emission12. The limits and the countries who would be binding by such
limits are mentioned in the Annex 1 of Kyoto Protocol.13
How the Carbon Credits will be generated?
The Carbon Credits will be generated by the countries itself by reducing their
emissions with the help of GHG emission reduction projects like replacing the use
of fossil fuels with renewable energy, reducing the GHG through energy efficiency
or Capturing the GHG in trees and other plants. For example, the renewable energy
generated from a wind mill can successfully replace the need for energy got from
fossil fuels such as coal. In Kenya as a part of one programme, the low economic
families those treats contaminated water by a special process of engineering system
reduced the emission of GHG and earned more than 2 million emission reduction
credits per year. The carbon sequestration the process of capturing and storing
already released carbon in the trees or other plants requires the protection of existing
forests or planting new ones.
Emission reduction is possible by National measures, Additional measures.
The Additional measures include the flexibility mechanism such as emission trading,
joint implementation, Clean Development Mechanism (CDM). The joint
implementation and Clean Development Mechanism are project based. KP set
these flexible mechanisms so as to achieve the targets.

11
Annex 1 countries, see Annex in http://unfccc.int/resource/docs/convkp/kpeng.pdf
12
http://www.investopedia.com/terms/c/carbon_credit.asp
http://dictionary.reference.com/browse/carbon+credit
13
Ibid note 11
102
Carbon Credits – Issues and Challenges

What is emission trading?


Between the industrialized countries (Anenex I) can transfer its emission
allocation to another industrialized country this transfer is called as emission trading.
That means a country within its limits can sell the surplus allowances to another
country that has exceeded the limit.
The Clean Development Mechanism (CDM) creates the carbon credits which
are called as Certified Emission Reductions (CERs) through emission reduction
projects in the developing countries.
The joint Implementation allows a developed country (Annex 1) to invest in
the projects of emission reduction projects in the developing countries.14 The very
reason behind such principles is the climate change is the global problem and the
location of GHG emission reduction is irrelevant. That means one tone of reduction
in Kenya is same as the emission reduction in China.
The emission reductions generated by the above mechanisms are together called
as ‘carbon credits’. It is a financial instrument which represents a reduction or
avoidance of one tonne of Carbon Dioxide or equalent. These 3 mechanisms and
the European Union Emissions Trading Scheme (EU ETS)15 which is body of EU
are working together to achieve the target set down by the KP and this is the largest
market for the trading of carbon credits in the world. These markets are basically
categorized as the Compliance Carbon Market, and the second category of market
is voluntary carbon market or Verified Emission Reduction (VER). These markets
are basically to the non binding or non committed countries under KP. The reasons
for such voluntary carbon markets are to reduce operating costs, CSR, green
marketing, mitigating reputation and commercial risk, pre compliance etc. Currently,
there are 5 Environmental Exchanges trading in Carbon Credits. They are CCX16
Chicago Climate Exchange, NORD POOL the Nordic power exchange, ECX
European Climate Exchange, EEX European Energy Exchange, Power Next.
How Carbon Markets does effective in GHG emission reduction?
The question, that how carbon markets really works for the emission reduction
has to be answered by analyzing the system of trading in the EU ETS and other
markets. The EU ETS work on the principle of ‘cap and trade’ 17. The ‘cap’ in this
the basic principle involved is setting a limit on total quantity of GHG emissions
allowed in the given period of time. Each member will get individual cap or

14
Article 12 of the Kyoto Protocol
15
For details see, http://ec.europa.eu/clima/policies/ets/index_en.htm
16
For details see, https://www.theice.com/ccx
17
Ibid note 15.
103
KIIT Journal of Law and Society (Volume -5: No-1)

allowance. Emission permits or allowances are issued to help cover these caps.
The ‘trade’ is basically trading of these allowances and permits depending on whether
any shortfall or surplus. Trading encourages companies to promote reduction in
emissions, the more they save permits the more money they can make by trading
them in the market. Offsetting controls the buyers of the carbon credits by looking
whether they are simply buying the limits or whether they are making any emission
reduction. Offset usage in trading schemes generally limited to the proportion of
overall emissions target.
On the other hand Carbon offsetting solely cannot provide a solution for
climate change unless it is supported by a multi layered approach. It helps the
developing countries for their economic development through this reduction of
emissions and this is a quick and cost effective to balance the carbon footprint.
Controlling Mechanism
The international agreed mechanism for controlling the carbon credit activities
is the Kyoto mechanism. Kyoto mechanism includes Joint Implementation (JI),
Clean Development Mechanism (CDM), and International Emissions Trading (IET).
These are the only mechanism for regulating carbon credit activities, they crucially
checks for the better enforcement and effectiveness. Another supporting mechanism
which keeps a check on this emission trading is the UNFCC.
Controlling Mechanism in National Level
Internationally, there are five exchanges trading in Carbon credits are European
Climate Exchange, NASDAQ OMX Commodities Europe, Power Next, Commodity
Exchange Bratislava and European Energy Exchange. In India, MCX added carbon
credits to its existing basket of commodities with regard to commodities futures
trading, the existing and potential suppliers of carbon credits in India have geared
up to generate more carbon credits from their existing and ongoing projects to be
sold in the international markets. All these exchanges and intermediaries are under
the control of international mechanism and also controlled by the state mechanism
on trading in their domestic law like SEBI is the controlling body of MCX in India.
Market trends and Impact on Environmental Economy
The world’s largest companies are outpacing their governments in responding
to climate change and expect carbon to be price. In fact 150 corporations disclose
using an internal price on carbon, nearly 500 companies globally report that they
are already regulated through global carbon markets. 638 countries report that
they recognize that carbon regulation presents business opportunities. This is why
more than 200 companies are directly engaging policy makers in support of carbon
pricing legislation helping lead the way towards a low-carbon economy. Companies

104
Carbon Credits – Issues and Challenges

on the Climate Performance Leadership Index (CPLI) 2014 have been reduced
their emissions.18
The Carbon trading has been consistently increasing in the recent years.
According to the World Bank’s Carbon Finance Unit, through several projects word
wide exchanged 374 million metric tonnes of GHG in 2005 which is relatively very
high in comparison with 110 in 2004, 78 in 2003. The Chicago Climate Exchange
(CCX) ceased its trading carbon emission in 2010. 450 members of the CCX already
achieved reduction of 700 million tonnes over the life of cap and trade program.
CCX during the 7 years tenure achieved successfully the cost effectiveness and
market based flexibility.
The Global markets value increased by 15% during the year of 2014 according
to the Thomson Reuters Piont Carbon team. The prices in EU ETS and the prices
in North American markets were the main reason for the increasing value of carbon
markets. Strangely the volumes traded shrank by 17%.
In 2015, the world’s carbon markets are expected to be increased by 10%
according to the senior analyst Olga Chistyakova.
Carbon Markets have become one of the fastest growing markets in the world.
Their worth expanded to US$ 176 billion in 2012 from US$ 10 billion in 2005.
Estimates predict a potential of up to US$ 1 trillion by 2020.19
India’s Role
India along with China, lead countries in earning Carbon Credit, India with a
contribution of 11.87% leading after China. India pocketed Rs. 1,500 crores in the
year 2005 just by selling carbon credits to the developed country clients. It has
generated 30 million carbon credits and 140 million are in pipeline. Some of the
leading companies of India using and selling Carbon Credits are SRF, NTPC,
ONGC, Gujarat Flouro Carbon Ltd.
Indian companies, which had invested in clean development mechanism
(CDM) projects under the Kyoto Protocol to claim certified emission reduction units
(CER) or carbon credits, now stand to face a “real loss” on unsold credits, as
opposed to a notional loss which was earlier being talked about, with prices falling
below one euro. Industry estimates peg the notional loss at Rs 10,500 crore.
The setting up of CDM projects served the purpose of controlling the rise in
global temperature resulting in global warming. However, following the economic
downturn, CER prices fell unexpectedly and there are still several companies which

18
CDA report on Global price on carbon 2014,
19
http://www.windworldindia.com/carbon-credits.jsp

105
KIIT Journal of Law and Society (Volume -5: No-1)

have failed to monetize on these credits even when prices were ruling around euro
10 in 2011.
“We would assume for credits to be issued between 2013 and 2019, an estimated
notional loss of around Rs 10,500 crore. This with an assumption of 65% issuance
success over a 7 year crediting period with assumed value of euro 10 per credit,”
said Birjendra Sangwaiya, principal consultant, carbon advisory business, Emergent
Ventures India (EVI).20
Conclusion
Carbon pricing makes technologies such as offshore wind, concentrated solor
power or carbon capture and storage more developed and competitive by full costing
the fossil fuel alternative sources of energy. To get more success the carbon price
ideally be stable, robust and global in nature and it should be encouraged and
supported through complimentary legislations and policies. So many investments
which are quite big like infrastructure which are quite long term should have stability
from the changing governments. When the companies internalize the cost of carbon
it changes the investment decisions to achieve the climate goals. The price will also
enable them to provide strong returns to their investors. The Carbon pricing acts a
catalyst for the transformation necessary for our society.
The Financial Services Authority (FSA) received some complaints in the
UK about carbon credit trading system and the Gold Standard Foundation was also
aware of the same thing. But none of the complaints were against the Gold Standard
Foundation. The carbon credit investments are non risk free and most complex
than a traditional investment. The liquidity depends on the Secondary trading market
which is affected by various global politics and economic factors.
Some companies in China created GHG with sole purpose of their recycling
and gaining carbon credits. Carbon trading was also criticized as a form of
colonialism, in which the very rich countries maintain their level of consumptions
by getting the carbon credits from inefficient industrial projects. The Kyoto Protocol
faced a criticism that it did not promoted sustainable development.
Irrespective of some minor criticism the Carbon Markets had been proved as a
successful mode of controlling GHG emissions. In relation to this, Christiana
Figueres, Executive Secretary UNFCCC in a conference in London spoke to business
leaders, rallying them to push them against the climate change and setting out so
many opportunities they have to do that in sustainable and profitable business ways

20
http://timesofindia.indiatimes.com/business/india-business/Companies-holding-carbon-
credits-stare-at-real-loss/articleshow/31803387.cms

106
Carbon Credits – Issues and Challenges

said “Today I ask you to renew your ambition towards the next steps needed to shift
the global economy from a good start towards the winning tape. Do this because
you want to be profitable or moral, or both…..For many years the issue of climate
change was characterized as one of sacrifice, of giving up things to save the world.
Today the value proposition is fundamentally different. The cost of inaction is
disaster and risk management will deliver the prize”.
The very object behind the creation of Carbon Markets had been successfully
achieved and the Carbon Markets not only achieved the goals set up regarding
GHG emission reduction but also flourished so many Industries, companies and
projects directly and indirectly. The developed countries and developing countries
both benefited and a growth in the International Environment Economy also much
more than expected.

107
KIIT Journal of Law and Society (Volume -5: No-1)

OCCUPATIONAL PATTERN AND FOREST BASED


LIVELIHOODS OF THE SANTALS OF PURULIA, WEST
BENGAL, INDIA
Atrayee Banerjee1
Arup Ratan Bandyopadhyay2
Nirmal Kanti Chakraborti3

Abstract
The relation between tribal people and forest can be traced down the lanes of
history. They share a significant relationship with the forest and its product, be it
for livelihood or for performing cultural rites. History says that the conditions of
the indigenous people were unsatisfactory during the colonial rule and mass
exploitation of their basic rights and utter poverty reigned supreme. Deprivations
include: extinguishment of customary collective management, control and use
rights; restrictions on cultivation in forest areas, de-recognition of established
villages and eviction of families without rehabilitation; creation of bonded labour
‘forest villages’. The implementation of the Scheduled Tribes and Other Traditional
Forest Dwellers (Recognition of Forest Rights) Act, 2006 has created controversy
in West Bengal. The basis of this paper is to empirically study the occupational
pattern and the dependence of the Santals on the forest products in tribal areas of
Purulia, West Bengal, India. The Santals inhabiting these villages are dependent
on the nearby Rakhab forest for their existence. Natural resource endowment
ensures provision of several goods, services and amenities, but using the
environmental resources for a single purpose reduces its ability to supply them
with other services. The limited natural resource base being scarce and many
conflicting demands placed on it from other sectors and other areas of society
increases the vulnerability of the tribal communities and affect their livelihood.
The use of Non-Timber Forest Products (NTFPs) is manifold in the livelihood of
the Santals of this area. They include fruits, resins, gums, herbal plants, roots,
honey and wood that is not timber (for example, firewood). NTFPs have great
importance to the livelihoods of forest (tribal) dwellers.

1
Research Scholar, Department of Anthropology, University College of Science,
Technology and Agriculture, University of Calcutta.
2
Professor, Department of Anthropology, University College of Science, Technology and
Agriculture, University of Calcutta.
3
Professor of Law and Director, School of Law, KIIT University.
108
Occupational Pattern and Forest Based Livelihoods of the Santals ...

Introduction
Forests cover roughly four billion hectares of the globe (United Nations Food
and Agriculture Organization [FAO] 2010) and an estimated 800 million people
depend on forest resources for their livelihoods (Rights and Resources Initiative,
International Tropical Timber Organization [ITTO], 2010). A flurry of recent studies
emphasizes the importance of developing better understandings of the circumstances
under which devolving forest rights to local communities and Indigenous people
can support the twin goals of conserving forests and providing viable forest-based
livelihood opportunities (Sudtongkong and Webb, 2008; Barsimantov et al., 2011
and Persha et al., 2011). Rights have moved to the centre of debate in international
forestry (Sikor and Stahl, 2009). An Indonesian Court has ruled indigenous people
have the right to manage forests where they live; a move which supporters said
prevents the government from handing over community-run land to businesses
(Indigenous People Fight for Rights, accessed from http://www.loc.gov/lawweb/
servlet/lloc_news?disp3_l205403604_text on 23/01/2014). From Latin America to
the Pacific Islands, indigenous people are demanding ownership and control of
their territories, self-determination and representation through their own institutions
(The Woodland League, accessed from http://www.woodlandleague.org/info/info/
indigenousrights .htm on 10/12/2013).
The idea of “indigenous people” is an issue of considerable contention in India
today. In India, there is continuing debate on the appropriateness of the use of the
phrase “indigenous people” because it is not easy to identify indigenous people in
India. There have been continuous waves of movement of populations with different
languages, races, cultures and religions going back to millennia (Sabharwal, 1996).
In India, the tribal population constitutes nearly 8.6% of the total population (Census
of India, 2011). The relationship between the tribal people and the forest goes back
to the times immemorial. Forest has been sufficiently sustaining their inhabitants.
They enjoyed the freedom of using the forests in whatever way they liked, in such
an extent that they have developed a conviction that they belong to the forests and
forests belong to them (Hasnain, 1983). Although the demography of tribal people
cannot loom large in India’s overall demographic scene, demographic features in
tribal societies have often been distinct and distinguished both in historical and
comparative perspectives. It is interesting to study the Indian notion of “tribe” and
its comparative position vis-à-vis the main-stream society since the last century
especially in the contemporary context of development and globalization (Maharatna,
2005).
History says that the conditions of the indigenous people were unsatisfactory
during the colonial rule and mass exploitation of their basic rights and utter poverty

109
KIIT Journal of Law and Society (Volume -5: No-1)

reigned supreme. The Zamindars and money lenders often snatched away their
lands, making them landless and virtually homeless (Sen, 1996). Over centuries a
substantial part of the indigenous population in India have been living and making
a living amidst its forests (Haimendorf, 1982; Hasnain, 1983). Their knowledge of
the resource base not only helps them to a wide range of food items, but also to
make controlled use of them so as to maintain the resources and manage them
sustainably as far as they are allowed to make environmental decisions for themselves
and at their own free will (Seeland et al.,2007). The Scheduled Tribes and Other
Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 is an important
piece of forest legislation passed in India on December 18, 2006. The law ensures
the rights of forest-dwelling communities to land and other resources, denied to
them over decades as a result of the continuance of colonial forest laws in India.
The Act recognizes several rights including the right of ownership, community
rights, right to hold and live in the forest land etc. This Act has been often
misunderstood as a law to distribute forest lands to the tribal. This has drawn
criticism from environmentalists and wild-life conservationists. Numerous
complaints regarding the implementation of the Act have been filed (Summary Report
on Implementation of the Forest Rights Act, 2010). A National Commission has
been set up to study the incidents of forced evictions since the constitution came
into force and make necessary recommendations for resettlement and rehabilitation
to the victims of forced evictions consistent with the guarantees provided under the
constitution.
West Bengal covers only 2.7% of India’s land area but supports 7.81% of its
population (Census of India, 2001), leading to a population density of 903 persons
/ km2, the highest of any Indian state (Govt. of West Bengal, 2008). Of the state’s
80.22 million population, 5.48% are Scheduled Tribes (mainly Santals) most of
whom reside in forest areas, and there are many more households who are rural
based and depend on forests for their livelihoods. As the state gradually annexed
forest lands to create the forest estate from the mid 19th century on (and currently
13.52% of the state), they deprived local people of a wide range of customary
rights, and these deprivations have largely continued to the present (Banerjee et al.,
2010) . Deprivations include: extinguishment of customary collective management,
control and use rights; restrictions on cultivation in forest areas, de-recognition of
established villages and eviction of families without rehabilitation; creation of bonded
labour ‘forest villages’. The implementation of the Scheduled Tribes and Other
Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 has created
controversy in West Bengal. The gram sabha, the basic unit in the process of forest
rights recognition, has been replaced by the gram sansad, denoting the village level

110
Occupational Pattern and Forest Based Livelihoods of the Santals ...

constituency under the panchayati raj system. This has been followed by contiguous
arrangements as well as initiatives which are inconsistent with the Act. All these
factors have led to undermining the spirit of the Act to promote community
governance of forests, which has invoked stiff opposition from forest dwellers in
the region (Jha, 2010).
Table.1: Report on Implementation of the provisions of the “Scheduled Tribes
and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006”
in the State of West Bengal as on 25.07.2013.
District Individual Claims Community Claims Total
ST Non ST ST Non ST
Purulia 21921 11638 19 648 34226
Bankura 20107 11767 512 95 32481
Jalpaiguri 4553 2346 3010 2032 11941
Paschim Medinipur 37377 14929 953 286 53545
Burdwan 3456 0 177 0 3633
Birbhum 883 0 67 0 950
Cooch Behar 183 0 09 0 192
Hooghly 08 05 01 0 14
Murshidabad 14 0 0 0 14
Darjeeling(Siliguri) 89 178 15 0 282
Total 88591 40863 4763 3061 137278
Source: Backward Classes Welfare Department, Govt. of West Bengal
Out of the 18 Districts in the State, 11 districts were identified where there was
scope of implementation of the provisions of the Forest Rights Act. These 11 districts
are: Purulia, Bankura, Paschim Medinipur, Jalpaiguri, Burdwan, Cooch Behar,
Hooghly, Birbhum, Darjeeling, Murshidabad and Nadia. In order to implement the
provisions of the Forest Rights Act, 2006 the State-Level, District-Level, Sub-
Divisional-Level Committees and also Forest Rights Committees have been set up.

Table.2: Distribution of Patta under Forest Rights Act, 2006 in the State of
West Bengal as on 25.07.2013.

111
KIIT Journal of Law and Society (Volume -5: No-1)

District Patta Distributed Quantum of land Patta Quantum


involved incases of readyfor ofland in
distributed pattas distribution respectof
ready cases
(acre)
Individual Community Individual Community
(acre) (acre)

Purulia 6541 1 3461.60 10 0 0


Bankura 8566 0 3871.72 0 475 251.11
Jalpaiguri 4895 12 7500.66 18.39 831 1273.35
Paschim 7355 09 1569.15 2.72 323 148.41
Medinipur
Burdwan 2762 53 446.23 9.40 527 93.43
Birbhum 140 0 176.60 0 0 0
Cooch Behar 505 34 73.81 19.78 0 0
Hooghly 8 0 0.65 0 0 0
Murshidabad 14 0 1.00 0 0 0
Darjeeling 88 0 86.13 0 0 0
(Siliguri)
Total 30879 109 17187.55 60.29 2156 1766.30

Source: Backward Classes Welfare Department, Govt. of West Bengal


The tables clearly show that Purulia has the largest number of both Individual
and Community Claims but the number of Pattas being distributed is quite low
compared to the total number of claims. The truth behind this is a huge number of
claims got rejected on the grounds which are often treated as contradictory to the
very essence of the Forest Rights Act, 2006 (Banerjee et al., 2010). The process of
implementation was initiated in February, 2008 after the policy decisions taken in a
State-Level Meeting involving all the State-Level Functionaries. Receiving of claims
started latest by July, 2008 (Backward Classes Welfare Department, 2013). It is to
be mentioned in this context that the official report goes contrary to the picture that
we witness through both print and electronic media and writings of scholarly articles.

112
Occupational Pattern and Forest Based Livelihoods of the Santals ...

Objective
The basis of this paper is to empirically study the occupational pattern and the
dependence of the indigenous people on the forest products in tribal areas of Purulia,
West Bengal, India. A general survey in the tribal villages under the Keshargarh
Gram Panchayat (Hura Block) revealed some striking features. The villages are
inhabited by Santal tribe and they are located in a scattered form amidst the Rakhab
forest. The Rakhab forest is a 3000sq hectare area with its major portion falling
under the Keshargarh Gram Panchayat. There shall be an endeavor to relate the
indigenous people’s basic rights to the human rights discourse. The changing pattern
of land structure in plains and its impact on the indigenous lands is to be highlighted.
The process of denial of forest rights to the indigenous population which further
worsens their quest for survival is to be analyzed.
Materials and Methods
The indigenous people living in and around the forest areas of Purulia, the
most backward district of West Bengal have been chosen as the study area. The
reasons behind choosing Purulia as the study area are mainly the following:
1. Economically Purulia is the most backward district of West Bengal (State Forest
Report, West Bengal 2006-2007);
2. Purulia has an indigenous population of 18.27 per cent of the state’s total
population (Census of India, 2001);
3. Purulia has a total area of 61696.022 hectares under tropical deciduous forest
(29.69% of the total land area as per 2001 report of the National Forest Division,
Eastern Zone), second to Jalpaiguri district; and
4. The selected villages are located in and around the Rakhab Forest of Purulia to
study the forest dwelling community inhabiting this area.
Purulia lies between 22Ú60’N-23Ú50’N latitudes and 85Ú75’E-86Ú65’E
longitudes. The geographical area of the district is 6259sq km². The district has a
total population of 29, 27,965(Census of India, 2011) with a ratio of 912. The
tribal population constitutes 18.27% of the total population, ranking second to
Jalpaigury. The villages inhabited by the Santal community under the Keshargarh
Gram Panchayat of Hura block have been selected for the proposed study. Hura
(community development block) is an administrative head of East Sadar
Subdivision of Purulia district in the Indian state of West Bengal.
From the villages of the Keshargarh Gram Panchayat (Hura Block) about 160
households from the five villages namely, Kaitardih, Dhadkitanr, Dudhpania, Kultanr
and Karkota under the Keshargarh Gram Panchayat have been selected and surveyed.
Regarding the study for the present purpose detailed data have been collected using

113
KIIT Journal of Law and Society (Volume -5: No-1)

pre-tested schedule pertaining to the occupational pattern and the list of Non Timber
Forest Products collected round the year.

Block- Hura, Gram Panchayat- Keshargarh


Villages- Karkota, Kaitardih, Kultanr, Dudhpania and Dhadkitanr
114
Occupational Pattern and Forest Based Livelihoods of the Santals ...

Area and Studied Population


Purulia lies between 22Ú60’N-23Ú50’N latitudes and 85Ú75’E-86Ú65’E
longitudes. The geographical area of the district is 6259sq km². The district is
bordered on the east by Bankura and West Midnapore, on the north by Burdwan
and Dhanbad district of Jharkhand, on the west by Bokaro and Rancher districts of
Jharkhand and on the south by West Singhbhum East Singhbhum of Jharkhand.
The town of Purulia is the administrative head quarter of the district. In 2011,
Purulia had population of 2,927,965 of which male and female were 1,497,656 and
1,430,309 respectively (Census of India, 2011). As per 2001 Census of India,
Hura block had a total population of 127,423, out of which 64,462 were males and
62,961 were females. Hura block registered a population growth of 12.04 per cent
during the 1991-2001 decade. Decadal growth for Purulia district was 13.96 per
cent. Decadal growth in West Bengal was 17.84 per cent. Scheduled tribes numbered
34,594, forming around one-fourth the population.
As per 2001 Census of India, Hura block had a total literacy of 59.03 per cent
for the 6+ age group. While male literacy was 76.42 per cent female literacy was
41.21 per cent. Purulia district had a total literacy of 55.57 per cent, male literacy
being 73.72 per cent and female literacy being 36.50 per cent. The five villages
which have been considered for the present paper are Kultanr, Karkota, Dhadkitanr,
Dudhpania and Kaitardih . These are Santal inhabited villages situated in and around
the Rakhab forest.
Occupational pattern
A tribal economy is characterised by a collection of their social, institutional,
technological and economic arrangements through which the community seeks to
enhance its material and social well-being. There is always an interaction between
the environment in which the community lives and their customary practices that
sustain their livelihood. The studied villages too are of no exception. The Santals
inhabiting these villages are dependent on the nearby Rakhab forest for their
existence. Natural resource endowment ensures provision of several goods, services
and amenities, but using the environmental resources for a single purpose reduces
its ability to supply them with other services. The limited natural resource base
being scarce and many conflicting demands placed on it from other sectors and
other areas of society increases the vulnerability of the tribal communities and
affect their livelihood. Among the rain fed lowland rice producing areas, lies Purulia
district, a part of the Chotanagpur Plateau in India, constitutes an area of particularly
low agricultural productivity leading to high incidence of poverty. The villages
have red soil which in itself is infertile and batrely supports single cropping pattern.
Almost every Santal household practices agriculture in their small amount of land

115
KIIT Journal of Law and Society (Volume -5: No-1)

holdings on a subsistence basis. In general the cultivation pattern of the Santals is


of primitive type and only supports their existence. But in this case the agricultural
land holding is so low that they opt for other way to bear their daily necessities.
Forest based livelihoods like selling of sal leaves, sal leaf plates, brooms made of
grass, fishing nets and selling of kendu leaves have become difficult now-a-days.
The Santals are finding it difficult to collect the Non-Timber Forest Products (NTFP)
from the Rakhab forest due to the interference of the lower level forest officials and
even sometimes from ordinary non Santal villagers who pose themselves as forest
officials. The poor Santals often falls prey to them and loose quite a good some of
money as fine. Unable to maintain a livelihood out of cultivation and Non Timber
Forest Products, they often work as local labourers and in many cases migrate to
other places (Bankura, Burdwan, Murshidabad and even to Maharashtra, Jharkhand,
Chennai and Orissa) to work in brick industry, share croppers, and daily wage
labourers. A significant number of male members and in some cases the female
members gets migrated in these areas in search of a livelihood. The tribal female
working in the brick factories of Bankura suffers from acute skin and respiratory
diseases. Moreover, the male population who migrates out of West Bengal finds it
difficult to mingle with the outside world and when they starts to adjust themselves
their own culture and tradition gets lost. Lack of access and low rate of exploitation
of the forest resources have led to this problem of migration.
The table below shows the occupational pattern of the Santals of the studied
villages.
Table.3: Occupational Pattern of the Santals of the Studied Villages of Purulia
Share Croppe-rs

Selling of NTFP

Brick Industry
Migratory
Name of the

Local Labour

Lac Farming
Cultivation

Cultivation
Coal Mine

Livestock
Workers

Workers

Rearing
Service

Tassar
village

Kaitardih 33 33 1 5 36 1 10 1 1 1 0
Kultanr 31 31 1 2 21 2 9 3 0 0 1
Dudhpania 19 19 2 1 15 0 3 0 0 1 0
Karkota 27 27 0 0 22 0 21 0 0 0 0
Dhadkitanr 32 32 1 0 24 0 12 1 0 1 0

116
Occupational Pattern and Forest Based Livelihoods of the Santals ...

The small agricultural holdings coupled with infertile soil and the absence of
irrigation water poses serious problems for the Santals to carry out their subsistence.
Tassar cultivation is carried out in some of the villages. The Santals of the Kaitardih
village practices tassar cultivation. tassar cultivation is an expensive process and in
the studied villages more than one household joins together to carry out this
cultivation. Raghunathpur Silk Board provides the eggs for the tassar cultivation
and the eggs are priced at Rs 1290/1000 eggs. The eggs need to be kept carefully at
a warm place before it hatches. The matured larvae then get shifted on the trees of
the nearby Rakhab forest. Tassar cultivation in Kaitardih village is carried out on
the Arjun tree. The raw silk is sold at a good price at the Raghunathpur block
office. The Santals and their dependency on the forest have kept this tassar cultivation
alive but the depth of poverty is gradually putting this farming in danger. The old
villagers have even confirmed that previously it was much easier to access the
forest than it is now, which hampers the tassar cultivation. Lac farming mainly
involving Palash tree is practiced by the Santals of the Kultanr village. Lac is sold
at a good price in the Raghunathpur block but now-a-days the tribal people are
finding it difficult to carry out this farming owing to the rising interference of the
forest officials in the Rakhab forest. The gradual decline in the dependency on the
forest has forced them to take up alternative mode of livelihood which includes
livestock rearing (bagal khata)
Forest Based Livelihoods of the Santals of the Studied Villages of Purulia
The use of Non-Timber Forest Products (NTFPs) is manifold in the livelihood
of the Santals of this area. NTFPs have been defined as “…all biological materials,
other than timber, which are extracted from forests for human use” (Ghosal, 2010)).
They include fruits, resins, gums, herbal plants, roots, honey and wood that is not
timber (for example, firewood). NTFPs have great importance to the livelihoods of
forest (tribal) dwellers. Mainly tribal women collect NTFPs for subsistence as well
as commercial purposes. From dawn to dusk, forest villagers of this region use
NTFPs for several household needs. There social life is often structured by the
availability of forest resources. The more that can be learned about the uses of
NTFPs by these villagers, the more appropriate the policies developed by the State
Forest Department are likely to be. NTFPs are used here as food, fodder, medicine,
decoration, household necessities and other purposes
In all the studied villages people are collecting the NTFPs without any clear
rights. A majority of the households are primarily collecting NTFPs for their
consumption and could sell a small amount via middle-man. Women collect tendu
leaves from the Rakhab forest each year which provides raw material for the bidi (a
sort of short cigarette) industry. The dried tendu leaves are sold at a handsome rate
while the green one fetches a very little amount, as low as Rs. 20/80 leaves. Since
117
KIIT Journal of Law and Society (Volume -5: No-1)

the collection is not carried out in a well organized manner and the influence of the
middle-man is immense, it barely covers their bare necessities. Due to lack of
infrastructure these Santals could not store their collected products such as honey
and thus the middle-man buys that product at a very nominal price. The Sal leaves,
collected by almost all the Santal women in these villages are either sold as raw
materials or mostly they are sold as plates and cups to the middle-man. Collections
of NTFPs include wood for fuel, collection of wild grass for making brooms and
collection of twigs for making the traditional fishing equipment. The NTFPs also
include collection of tubers and roots for their subsistence since, paddy cultivation
only covers their necessity for half of the year or so.
The following table shows the list of Non-Timber Forest Products collected by
the Santals from the Rakhab forest throughout the year.
Table.4: List of Non-Timber Forest Products Collected by the Santals of the
Studied Villages
Sl.No Part of the Plant from which Scientific name
plant collected NTFPs are Collected
as NTFP
1 Bark Bhaluksukti Oroxylum indicum
2 Dangua pan Smilex macrophyla
3 Harla (Haila/Panja) Holloptelia integrifolia
4 Kanakendi (Arjun) Terminalia arjuna
5 Kath pan Eresia lebis
6 Khair Acacia catechu
7 Telhe Sterculia urens
8 Sishoo Dalbergia Sishoo
9 Sirish Albizia Lebbeck
10 Simul Bombaxcebia
11 Sidha Lagastramia Parviflora
12 Dry Branches Almost of all the trees
and Leaves for present in the forest
firewood
13 Flower Dhatki Woodfordia furticosa
14 Ghentu Typhonium trilobetum
15 Jihur Lanea grandis
16 Keoa Costus speciosus

118
Occupational Pattern and Forest Based Livelihoods of the Santals ...

17 Mahua (Mahul) Madhuca indica


18 Sal Shoria Robusta
19 Tilai
20 Palash Beautia Frondosa
21 Neem Azadirachata Indica
22 Piasal Terocardus Mersupiam
23 Kusum Schaleichera Trijuga
24 Akanda Calutropis Gigantea
25 Sarpagandha Raublofia Serpentina
26 Dhutrah Detura Stramonium
27 Simul Bombaxcebia
28 Karabi Nerium Odurum
29 Fruit Amlaki Phyllanthus Emblica
30 Bahera Terminalia Ballerica
31 Haritoki Terminalia Chebula
32 Bel Aegle marmelos
33 Ban-khajur Phoenix acaulis
34 Piyal Buchanania Latifolia
35 Bhela Semecarpus anacardium
36 Neem Azadirachata Indica
37 Ghang(kihor) Phaneria vialii
38 Jam Syzyguim cumini
39 Kend Diospyros melanoxylon
40 Kul Gizyphus Xylopia
41 Gum Sal Shoria robusta
42 Leaf Ban-pui Basella alba
43 Bel Aegle marmelos
44 Ban-tulsi Ocimum Canum
45 Kalmegh Andrographis paniculata
46 Kanchan(kural) Bahinia Perviflora
47 Kend Diospyros melanoxylon
48 Khar grass Cucumis sativus

119
KIIT Journal of Law and Society (Volume -5: No-1)

49 Neem Azadirachata Indica


50 Kulekhara Hygrophila auriculata
51 Paina lata Bauhinia volubilis
52 Sal Shoria Robusta
53 Kendu Biospyros Melanoxylon
54 Karanja Pongamea Glabra
55 Dudhilota Ichno Carpus
56 Alkushi Mucuna Pruriens
57 Karom Not available
58 Akashmoni Acacia Auriculiformis
59 Minjiri Cassia Siamea
60 Plant Mushroom Agaricus bisporus
61 Rhizomes Ban-ole Amorphophallus
sylvaticus
62 Ban-alu(khamalu) Dioscorea bulbifera
63 Root Anantamul Hemidesmus indicus
64 Satmuli Espergas Recemosus
65 Seed Kurchi Hullar Henna
Antibysenterica
66 Sal Shoria Robusta
67 Tuber Kukui-alu Dioscorea sp.
68 Panja-alu Dioscorea sp.
69 Tuber Root Gethi-alu Dioscorea sp.
70 Sushuni-alu Dioscorea esculenta
71 Thara-alu Dioscorea sp.
Table.5: List of Non-Timber Forest Products and their time of collection
Sl.No Name of the NTFP Availability Importance
1 Firewood Whole year CommercialHousehold
2 Sal(leaf) 8 months Mainly Commercial Household
3 Bel(fruit) 3 months Household
4 Haritoki(fruit) 3 months CommercialHousehold
5 Amlaki(fruit) 2 months CommercialHousehold

120
Occupational Pattern and Forest Based Livelihoods of the Santals ...

6 Kend(leaf) 2 months Commercial


7 Tentul(fruit) 3 months CommercialHousehold
8 Tendu(leaf) 7 months Commercial
9 Kham-alu 2 months Household
10 Jam(fruit) 1-2 months Household
11 Genthi-alu 2-3months Household
Gender division in the collection of NTFPs among forest communities is common
in the study area. In general, women and children collect leaves, fodder, firewood,
rhizomes, tubers and roots. Normally men family members collect NTFPs including
fruit, bark, roots and tubers when they do not get any work as wage labourers.
Normally kendu leaves are collected by the female folk and the children of the
villages. The tribal women are the major care takers of the forests as they collect
food, fuel and fodder.
The idea of Joint Forest Management was of Dr. Ajit Kr. Banerjee where the
main objective initially was to manage the forest by the help of the forest communities
but the present situation ion West Bengal is in utter dismay. Joint forest management
and that of the village communities is totally absent in the studied villages.
Dependency on Forest for Rituals and Practices of the Santals
The Santals consider certain tree species as their own property and try to resist
any action organise to cut, remove and replace the same by different types of species
in the area. Fruits, flowers, seed, gum and roots of trees like Mahua, Karanj, Kusum,
Sal etc are collected by tribal communities for eating, extraction of edible oil,
medicinal and cosmetic purposes and hence they have got an inherent tendency to
protect these seedlings and their associates wherever they are found. Some forest
areas in this region are considered as sacred areas, from where the collection of any
type of forest product is prohibited. Indigenous forest dwellers believe that the God
of the forest live in those area so they should not disturb those particular forest
areas. Jahirthan, the name given by the Santals to the sacred tree grove where they
worship and pray for the well-being of the community. Each village has an individual
Jahirthan, the selection of the same being made by the manjhi (village head man)
of the village. Normally, if tribal people need any medicinal plants, they usually
collect from these sacred areas, as they believe that forest God have bestowed her
blessing on these plants species. Therefore, these areas have largely been protected
and the biodiversity of these areas are intact.
The use of numerous plant species for medicinal purposes is widespread amongst
forest dwellers. Normally, if forest villagers get any physical problem, their first
port of call is the Vaidya (local doctors that make Ayurvedic medicine) rather than
121
KIIT Journal of Law and Society (Volume -5: No-1)

a qualified (allopathic) doctor. The Vaidya makes medicine using a wide range of
plant species, but they do not let common villagers know the composition of the
plant species used to produce their medicines; otherwise their family business would
be affected. An interview with a medicinal plant specialist goes as the following:
I collect various types of roots,fruits and barks to produce medicine. However,
I cannot tell this to outsiders and other villagers as this would hamper my business
a lot. My family survives on this business. [Medicinal plant specialist, Kanshabati
range (south), Hura block, Purulia District]
There are quite a few cultural festivals celebrated by forest communities in the
study area. Many of these demonstrate the importance of forest and forest products
in indigenous culture. Therefore, forest management initiatives must give proper
consideration to the cultural practices of local forest dwellers.
Forest and forest products have many uses in various social events. A group
of women in one of the studied villages describe that “during the marriage ceremony
we make a temporary shade with different types of plant parts. In Santali this is
called ‘chamara’. The branches and leaves of Sal trees are used along with the
Mahua and Sidha plants. We also use Amlaki and Bel leaves for ritual purposes
on a regular basis as they do have their particular uses. We use Jam and Amlaki
flower for different other ritual, social and household uses all round the year”.
They celebrate quite a few ritual performances in which forest and forest
products always play crucial role. The worship of forests, rivers, hills and wild
animals is a longstanding practice among these tribal communities. This is because
forest communities believe that their survival depends on the existence of forests,
rivers, hills and wildlife. Forests are the main source of flowers, fruits and leaves
for various social needs. They celebrate Jantal puja in the month of June-July when
they worship forest-hill-river. During this time they collect different types of leaves,
fruits and flowers which are entirely collected from surrounding forests. Apart from
this, they also celebrate another religious festival in the month of April-May. It is
known as Sarul. During Sarul they use new Sal leaves. They actually worship a
Sal tree during this festival. Other important celebrations are Sohorai and Baha.
During these festivals, different types of leaves, flowers as well as fruits are collected
from the Rakhab forest. Worshipping of Sal, Mahua and Kendu trees (Baha) is
performed before collecting new Sal leaves or any other important leaves.
Rights Deprivation of the Santals
Whilst rural people in forested areas depend for their livelihood security to a
significant degree on the use of forest resources, control access and use rights were
taken away by the state in a series of legal actions over the colonial and post
independence period. Some relief was provided from the 1980s onwards through
122
Occupational Pattern and Forest Based Livelihoods of the Santals ...

the implementation of Joint Forest Management. But in the studied villages the
effect of Joint Forest Management is absent. The rights deprivation has severely
affected the Santals of the studied villages. Deprivations include: extinguishment of
customary collective management, control and use rights; restrictions on cultivation
in forest areas, control over the practice of hunting ceremony (sendra) in the forest
during a specific time of the year. The provisions of the Forest Rights Act have
been violated in every step. After the delay with issuing the Rules, and the slow
response of the West Bengal government, state implementation only began in June
2008. Lack of awareness of the Santals on the provisions of the Forest Rights Act,
2006 as well as the negligence on the part of the Government officials and the
unscrupulous activities of the lower level clerks of the forest department, all are
responsible for the plight of the villagers. It is revealed during the field work that a
notification regarding the distribution of Pattas was prepared and got the
authorization of the district magistrate but everything went in vain. The most striking
feature of this Patta distribution is the huge disparity between the documents of the
Gram Panchayat and the saying of the Tribal villagers. While the Keshargarh Gram
Panchayat and the Block Development Office provided with the list which shows
that nearly thirty-two Pattas have already been distributed the villagers denied to
accept the same. The awareness raising meetings are nil while almost all the villagers
do not have a clear idea of neither what nor where to claim or what is the reality
behind individual claims.
The pro-active interference of Forest Department officials at the gram panchayat
level creates huge problem. The Act indicates that the nodal implementing department
is the Tribal Welfare Department, however the Tribal Department lacks funding for
an extensive field presence and capacity at panchayat level. Additionally, tribal
officials are not cognizant of forest land tenure systems nor do they have required
the data and maps. The Forest Department on the other hand has extensive field
staff, familiarity with forest tenure systems and maps. (Forest department maps are
however on a landscape level only (scale of 1:50,000) and therefore not useful for
claimants of one to two acres of forest land). Nevertheless, the Forest Department
has become closely involved in the implementation processes, and sought through
its involvement to protect its own interests in retaining control of the major part of
the forest.
General Observations
The tribal population inhabiting the above mentioned villages lives a life of
utter poverty. Wood collection for fuel is the basic need of these people which they
get from the forest but they are often fined for collecting the minor forest products
and these create a hindrance in maintaining their basic necessity of fuel. Whatever

123
KIIT Journal of Law and Society (Volume -5: No-1)

small amounts of sal leaves are collected by the womenfolk are used for making
plates both for family use and commercial purpose. Kendu leaves are collected
from the nearby Rakhab forest and then they are sold to Keshargarh LAMP co-
operative. These indigenous people also collect different types of leaves and twigs
for making fishing nets, brooms, small bags, sacks and so on. Their relation with
the forest is so intense that it finds its expression in the vivid use of different forest
items in their traditional festivals and this is clear from the very fact that they
consider every part of sal tree sacred. The pillar of their indigenous knowledge is
based on the different types of medicinal plants but with the gradual decline in
realizing the basic forest rights to them is making them more dependent on allopathic
and homeopathic treatment. Three villages namely Kultanr, Kaitardih and Karkota
are noted for tassar (silk) cultivation. Tassar is cultivated on Arjun, Palash and
Mohul trees. They buy the eggs of the silkworms from Raghunathpur Block office.
The most interesting fact is that the villagers are not at all aware of the Forest
Rights Act, 2006 which ensures the rights of the forest-dwelling communities over
land and other resources. This unawareness is mainly the effect of prolonged
negligence on the part of the government who never paid much attention towards
the need of educating these people. It is only after a notification in 2010 initiative
was taken to hand over the pattas to the tribal people, provided the beneficiary
could produce the Scheduled Tribe certificate. Even this programme is full of
lacunas and the list produced by the Gram Panchayat hardly matches with the real
list of beneficiaries. Unable to earn a living by just depending on the forest the
tribal people take recourse to other occupations like share-cropping(since each family
owns a small holding and whatever paddy it yields is not even sufficient for
consumption, share-cropping is practiced), daily wage laborer and even migration
to other cities for wages. The male members often migrate to Burdwan and Bankura
and even to Maharashtra,Chennai, Jharkhand and Orissa while a good number of
women flock to the brick industries of Bankura but too much exposure to heat and
toxic residues cause different types of skin diseases.
The study also revealed that the famous “100 days work” under the Mahatma
Gandhi National Rural Employment Guarantee Act is not free from speculation.
The wages under this Act which is same for both male and female, as fixed by the
central government, often varies. The payment is often delayed and the number of
days is shortened by 15-20 days. The Rajiv Gandhi Urban-Rural Electricity Project
has failed to solve the problem of electricity in almost all of the villages. Absence
of street lights worsens the condition of the villagers after sunset. Roads are kachha
and even a small shower makes them disappear under water. No initiative has been
taken under the Gram Sadak Yojona to build pucca roads. Coming to the point of
health and hygiene it may be mentioned that there is a complete absence of sanitation
124
Occupational Pattern and Forest Based Livelihoods of the Santals ...

facility in the studied villages. The households do not have sanitation facilities. The
documents of the Panchayat shows that Rs.30, 000 has been provided to the Tribal
families to construct the bathrooms but their sheer poverty compelled them to use
the sum in other basic necessities. Even the parameters to be used to issue the BPL
card are so complicated and self contradictory that the Santal families find it difficult
to get one.
Acknowledgement
It should be mentioned in this respect that the villagers are extremely helpful
and participated voluntarily in whatever way they could in my field study. I am
really grateful for the help and guidance of my supervisor, Dr. Arup Ratan
Bandyopadhyay, my joint supervisor Dr. Nirmal Kanti Chakraborti and the Head
of the Department for all sorts of help whenever necessary.
References
Banerjee, A., Ghosh, S. and Bagniski, O. S. (2010). Obstructed Access to Forest
Justice in West Benghal. Discussion Paper Series No.49. U.K.
Barsimantov, J., Racelis, A, Biedenweg, K and DiGiano, M. (2011). When collective
action and tenure allocations collide: Outcomes from community forests in
Quintana Roo, Mexico and Petén, Guatemala. Land Use Policy. 28:343-352.
Food and Agriculture Organization. (2010). Global Forest Resource Assessment
2010. FAO Forestry Paper 163 Rome: FAO.
Government of West Bengal. (2008). Backward Classes Welfare Department.
Kolkata.
Government of West Bengal. (2013). Backward Classes Welfare Department.
Kolkata.
Ghosal, S. (2010). Non-Tiber Forest Products in West Bengal:
Knowledge,Livelihoods and Policy. University of Nottingham. U.K.
Hasnain, N. (1983). Tribal India Today. New Delhi: Harnam Publication.
Haimendorf, C.V.F. (1982). Tribes of India: The Struggle for Survival. Delhi: Oxford
University Press.
International Tropical Timber Organization. (2010). Accessed from www.itto.int/
annual_review/ on 02/03/2013.
Indigenous People Fight for Rights. Accessed from http://www.loc.gov/lawweb/
servlet/IIoc_news?disp3_1205403604_text on 23/01/2014.
Jha, S. (2010). Process Betrays the Spirit: Forest Rights Act in Bengal. Economic
and Political Weekly. 65(33).

125
KIIT Journal of Law and Society (Volume -5: No-1)

Maharatna, A. (2005). Demographic Perspectives of India’s Tribes. Delhi: Oxford


Publishing House.
National Forest Division Report, Eastern Zone. (2001). Accessed from
www.envfor.nic.in/divisions/nfr.html on 20/05/2012.
Persha, L., Agrawa, .A. and Chhatr, .A. (2011). Social and ecological synergy:
Local rulemaking, forest livelihoods, and biodiversity conservation. Science
331:1606-1608.
Registrar General of India. (2001). Census of India. New Delhi: Ministry of Human
Resource Development. Government of India.
Registrar General of India. (2011). Census of India. New Delhi: Ministry of Human
Resource Development. Government of India.
Seeland, K., Patnaik,N., Chowdhury, B.P., Rath, A., Biswas, A.K. and Giri, D.B.
(2007). Seeland.K & Schmithiisen.F, Forest Tribes Of Orissa, (1st, 3,). New Delhi,
D.K. Print World.
Sabharwal.Y.K “Plenary Session: Rights of Indigenous Peoples”. Accessed from
www.SupremecourtofIndia.nic.in/new-links/ILA-Toronto.doc on 16/01/2012.
Sikor, T. and Stahl, J. (2009). Towards a rights-based agenda in international
forestry? Accessed from nature.berkeley.edu/rights-based_forestry on 20/10/2012.
Sen, S.N .(1996). Modern India (1765 to 1950). New Delhi: New Age International
(P) Limited Publishers.
State Forest Report West Bengal 2006-2007 .(2007). Accessed from
www.westbengalforest.gov.in/...pdf/state_forest_report_06_07.pdf on 20/05/2012.
Sudtongkong, C. and Webb, E.L. (2008). Outcomes of state-vs. Community-based
mangrove management in southern Thailand. Ecology and Society 13:27. Accessed
from URL: http://www.ecologyandsociety.org/vol13/iss2/art27/ on 05/04/2011.
Summary Report on Implementation of Forest Rights Act, 2010. Accessed from
www.forestrightsact.com/component/k2/item/15.
The Woodland League. Indigenous Peoples and Forests. Accessed from http://
www.woodlandleague.org/info/indigenousrights.htm on 10/12/2013.

126
CRITICAL ANALYSIS OF CHILD’S RIGHT TO
PRIMARY EDUCATION IN INDIA: WITH SPECIAL
REFERENCE TO RIGHT TO EDUCATION ACT, 2009
Bineet Kedia1

Abstract
With the recognition of education as one of the fundamental rights of children
and a clear constitutional mandate to the effect it is to be seen whether this right
is being realized in practice or not. After the enactment of Right to Education Act
2009 it is sad to note that it fails to take into account various important aspects
relating to educational rights of children.
This raises a question about the seriousness or concern of our policy makers
towards the rights of children. This lackadaisical attitude is also depicted by the
budgetary allocation of the government in the field of education and the reluctance
to bring the preschool education into the purview of right to free and compulsory
education.
The aim and objective of this paper is to critically analyze the fundamental
rights to child’s right to education in India with Right to Education Act, 2009 and
see how far this fundamental rights is been actualized in practice.
Introduction
“Change does not necessarily assure progress, but progress implacably requires
change. Education is essential to change, for education creates both new wants and
the ability to satisfy them”
- Henry Steele Commager
One of the driving forces in the rapidly changing globalised economy and society
is the knowledge. Competence of the highly specialized human resources is
determined by their quality and quantity. This emergence of knowledge acts as a
driving factor for both challenges and opportunities in the present world. It is now
well acknowledged that the growth of the global economy has increased opportunities
for those countries that have people with good levels of education and knowledge.2
Research has shown that generally, at the start of a very young age, children
used to develop their mental powers and capacity. These mental, moral and physical

1
Assistant Professor, Amity University Rajasthan, Law Department. E-mail I.D.
bkedia@jpr.amity.edu
2
Dimpy Chowdhry, “Importance of Education”, 2000, See, http://www.boloji.com/
index.cfm?md=Content &sd=Articles&ArticleID=1380, last accessed on 10th January, 2015.
127
KIIT Journal of Law and Society (Volume -5: No-1)

powers are mostly acquired from the education which they get in schools. Thus,
Education is normally referred to as the process of learning and obtaining knowledge
at school, in a form of formal education. However, it is also not true that the process
of education of a child start when a child first attends school. It begins at home. A
child use to acquire knowledge not only from the teacher; he used to learn and
receive knowledge from a parent, family member and even from people in community.
However, it can also be not rejected that in almost all societies, attending school
and receiving an education is extremely vital and necessary if one wants to achieve
success.3
Education has been recognized as one of the fundamental and inherent right of
every child.4 The importance of education in the lives of children cannot be stressed
enough. It becomes even more important to equip children with basic education in
the current era. Though it is again difficult to determine what the level of basic
education should be. However, there is a consensus that at least the primary education
should be the minimum level of education to which a child should be entitled. Whether
it is sufficient to enable a child to live a meaningful life is a question which remains
to be seen. Further there seems to be a great inadequacy in the education system
which doesn’t take into account the importance of preschool education which seems
to be left out while discussing the educational rights of the children. In certain
special circumstances, the right of the children to education is also jeopardized,
both in terms of access to education and quality of education. Therefore, there are
specific categories of children also whose right to education has not been addressed.
This paper tries to address the different aspects of right to education and critically
analyse that how far Right to Education Act in India able to enlarge the importance
of free and compulsory education for children between 6 and 14 in India under
Article 21A of the Indian Constitution.
Global Strategies On the Right To Education Of A Child
Universal Declaration of Human Rights provides that everyone has a right to
education and elementary education shall be made free.5
Also the International Covenant on Economic, Social and Cultural rights also
provides that the states should make the primary education free and compulsory to
all. As regards the secondary and higher education it provides that it should be
made available by progressive introduction of free education.6 Since India is a

3
Ibid.
4
Aarti Dhar, “Education is a fundamental right now”, The Hindu, 1 April 2010. See,
http://www.thehindu.com/news /national/education-is-a-fundamental-right-now/
article337111.ece, last accessed on 15th December, 2013.
5
Article 26(1) Universal Declaration Of Human Rights,1948.
6
Article 13(2) International Convenant on Economic, Social and cultural Rights.
128
Critical Analysis of Child’s Right to Primary Education in India ...

party to the said covenant it is under an obligation to incorporate these principles in


the domestic legislation.
The United Nations Convention on The Rights of Child also provides for the
right to education of the child. It provides that every child shall be entitled to free
and compulsory education. It also provides that the state different forms of secondary
education should be made accessible to all.7 Again since India being a party to this
convention it is under an obligation to adhere to the principles laid therein. But it
doesn’t appear to be the case, as the Right to Education Act 2009 seems to negate
a lot of these principles.
Education and Human Rights: Right To Primary Education In India
Education plays an important role in the life of individuals.8 To enable a person
to live a dignified life it is essential to educate the person. The lack of education can
be disadvantageous in the current era9 as it impairs the ability to get involved or
participate in the decision making process. Education facilitates a person to make
the best use of one’s life. Generally speaking education is confined to the act of
learning or imparting knowledge. Education is the key to enjoy all the rights to
which a person in entitled to. Education is one of the essential component of any
sort of development be it economic or any other kind.10 It is only through education
that we are able to develop skills and knowhow required for any kind of endeavor.
Education enables a person to make meaningful decisions in life and also to affect
the lives of others in a more positive sense without any jeopardy to the interests of
others.11 It is also said that “without education an individual is just like an animal”12.
Education refines or polishes a person just like a sculptor. Education also enables a
person to make the best use of available opportunities and rights which they enjoy.13
Education also ensures effective political participation, it makes the masses aware
of their rights and hence assertive.14 The importance of political participation in a
democratic set up is not unimaginable, because it becomes necessary for them to
know how they are being governed.15It further helps out to develop meaningful and

7
Article 28 of the United Nations Convention On the Rights of Child.
8
C Raj Kumar, “International Human Rights perspectives on The Fundamental Right To
Education-Integration Of Human Rights And Human Development In The Indian
Constitution”, Tulane Journal of International and Comparitive Law,2004,p.1.
9
Ibid.
10
Asha Bajpai, “Child Rights in India , Law Policy and Practice”, Oxford University
Press, 2003, p.327.
11
Ibid.
12
JaysDhree V.Doddawadmath,Dr Ramesh, “Right To Education and Human Rights”,
KLJ, Vol 02, April 2010, at p.56.
13
Ibid,p.57.
14
Ibid.
15
Ibid.
129
KIIT Journal of Law and Society (Volume -5: No-1)

well informed citizens of Country which is the hall mark of development of a


Country16. Given the peculiar socio economic conditions in India where there is a
big chunk of population living below the poverty line and the caste inequalities
prevail it becomes necessary to provide for education which can go long way to
remove the prevalent inequalities.17
On the significance of education in Oliver Brown v. Board of Education of
Topeka18 it was observed that it is the very foundation of good citizenship. “Today
it is a principle instrument that in awakening the child to cultural values, in preparing
him for later professional training and in helping him to adjust normally to his
environment.” This decision just acknowledges the value that education holds in
the life of a person which includes children.
When we talk of education we are confronted with the question what should be
the content of education, which is to say what kind of education are we referring to?
Is there any minimum level of education that we can clearly identify to which a
child should be entitled to. The answer seems little difficult because education being
a wide and a broad concept including religious, vocational, professional education.
But it is also essential to determine the basic level or the kind of education to which
a person is entitled to. There seems to be an opinion that everyone should be entitled
to basic education. The first and the foremost task would be to identify who is a
child. There is no uniformly accepted definition of a child. Different national
enactments or regional and international conventions define a child differently. This
identification becomes important for the purpose of determination of entitlements.
If we have a look at the position in India there are different enactments which deal
with various rights of children defines a child differently for their own purposes.
This leads to a conflict with the interests of the child. To take an example the child
labor (prohibition and regulation) Act defines a child as a person below fourteen
years of age.19 The Hindu Minority and the Guardianship Act 1956 defines a minor
as a person not having completed 18 years of age.20 The Juvenile Justice Act defines
a “juvenile” or a “child” as a person below the age of 18 years. 21 Also the UN

16
CRaj Kumar, “International Human Rights perspectives on The Fundamental Right To
Education-Integration Of Human Rights And Human Development In The Indian
Constitution”, Tulane Journal of International and Comparative Law,2004, at p7.
17
C.Raj Kumar, “International Human Rights perspectives on The Fundamental Right
To Education-Integration Of Human Rights And Human Development In The Indian
Constitution”, Tulane Journal of International and Comparitive Law,2004, at p4.
18
JaysDhree V.Doddawadmath,Dr Ramesh, “Right To Education and Human
Rights”,KLJ,Vol 02, April 2010, at p.57.
19
Section 2(ii) Child Labor (Prohibition and Regulation) Act 1986.
20
Section 4(a) Hindu Minority and The Guardianship Act, 1956.
21
Section 2(k) Juvenile Justice(Care and Protection of Children) 2000.
130
Critical Analysis of Child’s Right to Primary Education in India ...

Convention on the Rights of the Child also defines a child as a person who is less
than 18 years of age. It is clear that there is no consensus or unanimity with regard
to the definition of child itself. The researcher also agrees that the child should be
defined as one below the age of 18 years. When this is the case and we are talking
about the educational rights of children then it would include not only primary
education but secondary education as well.
Before this we can try to look for an answer in the Indian Context,
notwithstanding the fact that different legislations in India have provided varying
age limits to determine who is a child, nevertheless we can still try to find out
whether we can find some clue within our legal system. If we observe the general
trend in this regard it is implied that there appears to be a general acceptance to the
effect that a child is a person below 18 years of age, e.g. right to vote is guaranteed
after 18 years of age.22
1. Factors responsible for low level of primary education in India
Although it has been the endeavor of the government and policy makers to
make primary education accessible and available to all children; inspite of various
schemes and efforts by the government like the Sarva Shiksha Abhiyan, Operation
Blackboard, District Primary Education Projects the literacy levels continue to be
low.23 According to 2001 census the literacy rate is 65%.24 Though this figure is
slight improvement over the previous levels of literacy, but still there are numerous
obstacles in achieving the goal of making at least the elementary knowledge available
to all children. Brief mentions of the few challenges in this direction are:
i. Poverty in India
Poverty is responsible for keeping the children out of school.25 Parents don’t
have the means and resources to afford to sent the child to school.26 If only this
would have been the reason the situation wouldn’t have been this worse. The problem
arises when the parents or the guardians sent the child to work instead.27 This apart
from denying the child of his basic right to education deprives him or her of other

22
The above stated is attributed To Dr Niranjanaradhya,Felloe Centre For Child And
Law,NLSIU,Bangalore during the Course of discussion on the Current Area of research
on 1-1-2011.
23
Bajpai,”Child Rights In India,Law and Policy and Practice”,Oxford Univesity
press,2003, at p.351
24
Ibid,p.332.
25
“Children and Youth in Poverty: The Public School Responsibility”. See, http://
www.nyspta.org /pdf/Advocacy/Position%20Paper%20 youth%20in%20poverty%20
FINAL%202-10.pdf, last accessed on 20th December, 2013.
26
Asha Bajpai, “Child Rights In India, Law Policy and Practice”, Oxford University
press,2003, at p.332.
27
Ibid.
131
KIIT Journal of Law and Society (Volume -5: No-1)

rights however this paper is confined to look only into the right to education of the
children. The low levels of income of the families makes it difficult for them to
afford the expenses of sending the child to school and the all the expenses incidental
thereto.
ii. Practice of Child labour
Child labour is one of the most important inhibiting factors in the realization
right of education. Official surveys reveal that at present there are 12million children
who are working as child laborers.28 It seems to be a little ironic that on the one
hand we talk about right to education and on the other hand there is no outright ban
on child labor but only regulation. There seems to be an inextricable link between
poverty and child labor and the lack of education.29 So the solution lies in a holistic
approach which would deal with these problems holistically and not as being
independent of one another. The Supreme Court of India in Laborers working on
Salal Hydro Project v. State of Jammu and Kashmir and Others,30 observed that
the basic reason for families in not sending their children to School is lack of means
and resources to do so. The court identified this to be one of the reasons for dropouts
from schools as well. Further the Court observed in such families the only way, left
out for them is to send the child to work to supplement their income. Not only this
had the Supreme Court also directed the Central Government to provide for
transportation and other facilities to the children of workmen.
Our rigid educational system seems to be somewhere contributing to the cause
of child labor and children’s abstention from school. When a family cannot make
up for two square meals day how hard life would be for such persons can be well
imagined rather than said. Though poverty alleviation should be ultimate goal but
till the time it is achieved the poor families are left with no option but to resort to
child labor. So if the educational system should be flexible enough to enable a child
to work and study simultaneously.31
2. Lack of Infrastructure and quality of Education
Another major is the lack of school in the vicinity of the residence of the
children.32 Still the country is struggling to have adequate number of schools in

28
Vinay Rai, Narendra Kumar, “Right to Education: The Way Forward”, Perfect Publishers
Pvt Limited,2010, at p.22.
29
“Key Facts: Poverty and Poor Health”, Health Poverty Action. See, http://
www.healthpovertyaction.org/policy-and-resources/the-cycle-of-poverty-and-poor-health/
the-cycle-of-poverty-and-poor-health1/, last accessed on 20th December, 2013.
30
AIR 1984 SC 177.
31
Saughata Mukherjee “Right To Primary Education, Constitutionality, Judicial
Innovations and Practical Considerations”,available at, www.nlsir.in/.../
076_17%20Right%20to%20Primary%20Education.pdf,visited on 25th of June, 2013.
132
Critical Analysis of Child’s Right to Primary Education in India ...

every area especially far flung areas.33 Augmenting to this problem is the lack of
other facilities like transportation and low learning outcomes.34 Many a times either
there is not adequate staff available or the teachers are well qualified and trained,
result being low learning outcomes and poor quality education.35 This leaves both
the parents and the children with no incentive to send the children to school.
Other factors are the lack of motivation on part of the parents to send their
children to schools possibly due to their non appreciation of the benefits of education.
Also another factor being the use of corporal punishment which either leads to
dropouts or not joining the schools at all.36 Though there has been an increase in the
availability of primary schools still then the goal of primary education for all has
not been achieved.
i. Low Budgetary Allocation
There seems to be non seriousness in regard to the right to education which is
reflected in the allocation of funds.37 Had there been a genuine desire on part of the
government to realize this right fully there would have been a fair progress in this
area. Keeping the economic status of the country in view post independence the
reduced expenditure on education sector was agreeable.38
Observing the initiations of the government in the area of education, particularly
primary education in the light of the allocation of funds all the promises of the
government appear to be rhetoric. This callousness of the government towards
education is evident from one of the “study of annual budgets during the period
between 1951 and 1961 in which it was stated that not even a lip service was made
with reference to education in the budget speeches.” 39 Also apart from the first five

32
“Child care Facilities”, Guidelines for Planning Authorities. See, http://www.environ.ie/
en/Publications/ DevelopmentandHousing/Planning/FileDownLoad,1601,en.pdf, last
accessed on 25th December, 2013.
33
Asha Bajpai, “Child Rights In India, Law Policy and Practice”, Oxford University
press, 2003, at p.333.
34
Ibid.
35
Ibid.
36
Ibid.
37
“A Guide to General Comment 7: Implementing Child Rights in Early Childhood”,
United Nations Committee on the Rights of the Child, United Nations Children’s Fund
and Bernard van Leer Foundation, 20 November, 1989. See, http://www.unicef.org/
earlychildhood/files/Guide_to_GC7.pdf, last accessed on 27th December 2013.
38
Shripad S.Bolashetty,Girija,L.L, “Fundamental Human Right To Free And Compulsory
Elementary Education In India:Origin,Progess And Present Status”,Indian Bar Review,
Vol 30,2003, at p.372.
39
Vijayashri Sripati, Arun K. Thiruvengadam,India: Constitutional Amendment Making
the Right to Education a fundamental Right, International Journal of Constitutional Law,
January 2004,p.2.
133
KIIT Journal of Law and Society (Volume -5: No-1)

year plan, there has been a relative decrease in the allocation of resources in the
subsequent five year plans till the seventh five year plan (1985-1990) wherein the
resource allocation was little improved.40 In the year 2003-2004 the budgetary
allocation for elementary education is Rs.4699 Crores which has been held to be
inadequate.41
From 2005-2007 there has been an increase in the budgetary allocation for
elementary education primarily upto grade V and not so much for the higher
education.42 The situation in the recent budget is no better. However, given the
rampant corruption and huge expenditure on defense and other developmental sectors
the plea of paucity of funds does not appear to be tenable.
ii. Constitutional Paradigm of Right To Education
As observed earlier in this paper that the right to education especially the right
to primary education for all children has not been achieved and still children are
being deprived of their basic right to education. When we speak of right to education
or any other right there are a few aspects which need to be fulfilled, such as the
right should be universal;43 it must incorporate as much as possible the mandate of
international conventions or treaties;44 and lastly must be accordance to the provisions
of the constitution.45 It would be pertinent to see whether the right to education in
India fulfills these conditions or not. However it remains to be seen whether the
Constitution of India guarantees any right to education at all.
The preamble to the Constitution of India seeks to provide to all its citizens
“justice economic social and political.”46 This promise would be meaningless unless
the people are educated because education alone can help the citizens to participate
in achieving these principles or goals enshrined in the preamble. Article 41 of the
Constitution of India provides that “The state shall within the limits of its economic
capacity of and development, make effective provisions for securing the right to

40
Asha Bajpai, Asha Bajpai,Child Rights In India,Law, Policy and Practice,Oxford
University Press,2003,p330.
41
C .Raj Kumar, , “International Human Rights perspectives on The Fundamental Right
To Education-Integration Of Human Rights And Human Development In The Indian
Constitution”, Tulane Journal of International and Comparitive Law,2004,p15.
42
Shanta Sinha ,”Children’s Right To Education and Democratisation of Schools”
available atncpcr.gov.in/Reports/Democratisation_of_Schools.pdf visited on 25-12-2010.
43
The Right to Education, United for Human Rights. See, http://www.humanrights.com/
what-are-human-rights/videos/right-to-education.html, last accessed on 27th December 2013.
44
“Vienna Declaration and Programme of Action”, United Nations Human Rights. See,
http://www.ohchr.org/EN/ProfessionalInterest/Pages/Vienna.aspx, last accessed on 28
December 2015.
45
The Above stated is attributed to Dr Niranjanaradhya,Fellow Centre for Child and
Law, NLSIU, during the course of discussion on the current area of research on 1-1-2011.
46
See preamble to the Constitution of India.
134
Critical Analysis of Child’s Right to Primary Education in India ...

work, to education and to public assistance in certain cases of unemployment, old


age, sickness and disablement and in other of undesirable wants.” 47
Further Article 45 of the Constitution Of India which originally provided that
the “state shall endeavor to provide, within a period of ten years from the
commencement of this constitution, for free and compulsory education for all children
until they complete the age of 14 years.” 48 However it was amended by the
Constitution 86th Amendment Act 2002, and the amended article provides that the
state shall provide shall endeavor to provide early childhood care education for all
children until they complete the age of six years. 49 These provisions of the
constitutions make it clear that the right to education is provided for in the
Constitution itself.50 However since these provisions are placed in the directive
principles of state policy they are judicially unenforceable but they nevertheless,
are fundamental in the governance of the country and it shall be the duty of the state
to apply these principles in the making of laws.” 51 It is noteworthy to mention that
though Article 41 is subject to the economic limits of the state it is not the case with
Article 45 which has not been subject to such limitations. It is clear that the intention
of the constitution makers was to guarantee a full-fledged right to education which
is an obligation of the state to do so.52 The amendment has reduced the vigor of
right to education by guaranteeing education only upto the age of six years.
Further since children are also citizens of this country just like other persons
which they are entitled to all fundamental rights. Article 14 and Article 15 of the
Constitution of India provide for the right to equality and non discrimination.
However in the area of education there are still some continuing discriminations
there are different categories of schools eg Government and private institutions,
aided unaided53 .Further there are different boards which impart varying qualities
of education because of the variations is syllabi etc.54 These conditions further

47
Article 41 of the Constitution of India.
48
Article 45 of the Constitution of India.
49
Ibid.
50
Jody Heymann, Amy Raub, Adele Cassola, “Constitutional rights to education and
their relationship to national policy and school enrolment”, International Journal of
Educational Development, 39 (2014) , pp. 131–141, at p. 135.
51
Article 37 of the Indian Constitution. See, G.B. Pant University of Agriculture &
Technology v. State of U.P., AIR 2000 SC 2695.
52
Saughata Mukherjee “Right To Primary Education, Constitutionality, Judicial
Innovations and Practical Considerations”,available at, www.nlsir.in/.../076_17%20 Right
%20to%20Primary%20Education.pdf,visited, visited on 25th of June, 2013.
53
DR.Pawan Kumar Mishra, “Constitutional Contours of Right To Education :An Implicit
Fundamental right,”,Indian Bar Review,Vol 37,2010, at p.54.
54
The above stated is attributed to Dr Niranjanaradhya, Fellow Centre For Child and
Law ,NLSIU, during the course of discussion on the current area of research on 1st of
January, 2011.
135
KIIT Journal of Law and Society (Volume -5: No-1)

perpetuate the inequalities in the society. The Kothari Commission on


Education(1964-66) has also suggested the need for introducing the common school
system to promote national integrity.55 However the existences of the inequalities in
the system of education are against the constitutional ethos and the rights of the
children as they should be entitled to uniform standard of education. Education
should have been a means to remove the inequalities which unfortunately are being
further augmented by the prevailing conditions.
iii. The Transition to Fundamental Rights: A Judicial creativity
The Constitution 86th Amendment which guarantees the fundamental right to
education to children upto the age of fourteen years was passed due to judicial
innovations and interpretations which read right to education into fundamental rights.
The Judiciary has played a remarkable role in elevating the right to education
from that of a directive principle to that of a fundamental right. However inspite of
such an attempt the right has not implemented with the vigor it should have been.
In Bandua Mazdoor Mukti Morcha v. Union of India56 the Supreme Court
observed “that the right to education is implicit in Article 21”.
In Bapuji Education Association v. State57 Karnataka High Court observed
that “right to education is an essential attribute of right of personal liberty. It was
also observed that right to have education or to impart education is one of the most
valuable and sacred rights.”
In Mohini Jain v State of Karnataka58 In this case the petitioner had challenged
the right order of the government of karnataka permitting the private medical colleges
to receive high amount of fees for the purpose of admission. The Court held that
charging a high capitation fee is illegal and cannot be permitted. The Court also
observed that “right to life is compendious expression for all those rights which the
courts must enforce because they are basic to the dignified enjoyment of life. The
right to education flows directly from the right to life”.
It was ultimately in the case of Unnikrishnan J.P and Others v State of Andhra
Pradesh59 that the Supreme Court held that right to education is not an absolute
right. “However the Court held that every child is entitled to education up to the age
of fourteen years.”It is important to note that both the cases Mohini Jain and

55
P.P Rao “Fundamental Right To Education”, Journal Of The Indian law Institute, vol
50,2008, at p.591.
56
AIR 1984 SC 802.
57
AIR 1986 SC 1858.
58
AIR 1992 SC 1858.
59
AIR 1993 SC 2178
136
Critical Analysis of Child’s Right to Primary Education in India ...

Unnikrishnan related to higher education but the outcome was the guarantee of
Fundamental right to primary education.60
It was after this case that the Parliament enacted the (Ninety Third Amendment
bill),2001 which became the Constitution (86th Amendment) Act,200261.The effect
of the amendment was to insert Article 21 A, which guarantees a fundamental right
to free and compulsory education to all children upto the age of 6 to 14 years. This
is the major flaw in this right that is guaranteed as the children in the group of 0-6
years have not been included. This goes against the very developmental need of
children as first six years of life are crucial to the development of children.62
It also includes a provision in Article 51 A regarding the duties of parents to
send their children to school. This is a clear evidence of shirking of responsibilities
by the government and placing additional burden on the poor and uneducated
parents.63
And as already pointed out in this paper this bill also amended Article 45 of the
Constitution. This amendment has diluted the guarantee of education as provided
by the Supreme Court in Unnikrishnan’s case.It is evident that this amendment Act
indicated the unwillingness on the part of the government to guarantee any substantive
rights of education to children.64
iv. Right To Education Act 2009: Deconstructing The Maze
Post, the Constitutional 86th Amendment of the year 2006 which guaranteed
the fundamental right to education the parliament enacted the “Right to Education
Act 2009” which came into force on 1st April 2010. This Act makes elementary a
right for all children in the age group of 6 to 14 years as provided by Article 21A of
the Indian Constitution.65 The Act is implemented to give effect to the Fundamental
Right to Education,66 however it becomes necessary to examine this piece of
legislation from the child rights perspective. The Act aims to universalize education
and turn the right conferred by the constitution into a reality.67 Whether this Act

60
Vijayashri Sripati, Arun K. Thiruvengadam,India: Constitutional Amendment Making
the Right to Education a fundamental Right, International Journal of Constitutional Law,
January 2004, at p.4.
61
Ibid.
62
Ibid
63
Asha Bajpai, “Child Rights In India: Law, Policy and Practice”, Oxford University
Press, 2003, at p.323.
64
Ibid.
65
Right of children to Free and Compulsory Education Act, See, http://www.icbse.com/
right-to-education-act, last accessed on 10 Janyary 2015.
66
“Right to Education, Department of School Education and Literacy”, Ministry of Human
Recourse Development, Government of India. See, http://mhrd.gov.in/rte, last accessed
on 20 January 2015.
67
Rishad Chowdhury, “The Road Less Travelled: Article 21A and the Fundamental Right
137
KIIT Journal of Law and Society (Volume -5: No-1)

fulfills these objectives would be the endeavor of this section of the paper. Viewing
it strictly from the child rights perspective one finds several inadequacies in this
which would be examined in this section of the paper.
This Act seems to continue with the previous practice of not including the
children in the age group of 0- 6 Years. There seems to be no mention, neither a
passing reference to this section of children. How can we ensure a good quality and
standard education for children when the very foundation itself is shaky?68
The Act focuses entirely on elementary education which it defines as “education
from first class to eighth class”.69 The Act further covers children only in the age
group of six to fourteen years whereas the United Nations Convention on the Rights
of the Child defines child as “every human being below the age of eighteen years”.70
While it is true that primary education cannot be substituted by education at any
other stage of life, the law has completely failed to appreciate the need for education
at the secondary and higher secondary levels. Education at only the primary level
will not enable the millions of children to reach college and secure jobs in the
future. This is not to say that education is only a means to secure a job. However,
it is not sensible to lose sight of the fact that a steady source of income based on a
decent educational background is fundamental for living life with dignity.
The Act in section 2(n) specifies different categories of schools and the Act is
applicable to state run and state aided institutions and not to the other categories ie
the private schools and the schools belonging to the “specified category”. 71 This
appears to be an attempt to legitimize the prevailing inequalities in the area of
education. “Well-known educationist Anil Sadagopal said of the hurriedly-drafted
act: It is a fraud on our children. It gives neither free education nor compulsory
education. In fact, it only legitimizes the present multi-layered, inferior quality
school education system where discrimination shall continue to prevail. “ 72 This
goes against the provision of the Constitution which aim towards equality and non
discrimination.

to Primary Education in India”, Indian Journal of Constitutional Law, Vol. 3, No. 1,


2010, pp. 24-46, at p. 25. See also, Mona Kaushal, “Implementation of Right to Education
in India: Issues and Concerns”, Journal of Management & Public Policy, Vol. 4, No. 1,
December 2012, pp. 42-48, at p. 42.
68
Right To Education Act, Chronicle vol XXI No 12,November 2010.
69
See, Section 2(f) Of The Right of Children to Free and Compulsory Education Act 2009.
70
See, Section 1 Of The Right of Children to Free and Compulsory Education Act 2009.
71
Niranjanaradhaya V.P,.People’s Constitutional Right To Education Versus The Right
Of Children To Free and Compulsory Education Act 2009,p.6.
72
The Right of the Children To Free And Compulsory Education Act: Crticism,available
at http://www. museumstuff.com/learn/topics/The_Right_of_ Children_to_ Free_and_
Compulsory_Education_Act::sub::Criticism, visited on 4th of July, 2013.
138
Critical Analysis of Child’s Right to Primary Education in India ...

Section 10 of the Act again makes it a duty of the parents or the guardians to
admit the child to the school. This Act doesn’t seem to take into account the peculiar
Indian conditions where most of the parents are uneducated and lack the motivation
to send the children to school because of their ignorance about the benefits of
education. This is nothing but an attempt to evade the responsibility and shift the
burden on poor parents.
Section 11 of the Act provides that “with a view to prepare the children above
the age of 3 years for elementary education and to provide early child hood care and
education until they reach the age of six years the appropriate government “may”
make necessary arrangement for providing free preschool education for such
children.”73 It is important to note here that the provision uses the word “may”
which gives discretion to the government to take such steps and does not make it
mandatory for the government to do so. In effect this provision doesn’t really have
a practical utility in terms of guaranteeing any right to the children in the age group
of 3-4 years.
Section 12 (c) of the Act provides that private unaided schools shall admit to
class I at least 25 percent students from a weaker section and disadvantaged group
in the neighbourhood.74 Such children shall be given primary education in the private
schools. The Act however is conspicuously silent in giving a solution for a situation
where a student wishes to continue education. Would this not again lead to a problem
of dropouts where after eighth standard a student either will have to leave school
for want of finance? Apart from the flaws above mentioned this Act is a clear
indicator of intention of the policy makers to privatize the education. The Act requires
all the private schools to reserve 25% of their seats for economically weaker and
disadvantaged section of the society. The Act fails to provide any criteria as to how
one goes on to determine how to select those 25% students.75
In the opinion of the researcher instead of asking the private schools to reserve
the seats for children the researcher opines that it would have been advisable to
improve upon the quality of education other facilities in the Government Schools.76
On the other hand the government is closing down Government Schools as One of
the report points out that the Government of Karnataka has declared to close down

73
See Section 11 Of The Right To Education Act 2009.
74
See Section 12 of The Right To Education Act 2009.
75
Parth J Shah and Shreya Agarwal, “Right To Education Act :A Crtique”,available at,
h tt p :/ / sc h o o lc h o i c e. i n/ med i ar o o m/ ar ti c le s b ys up p o r t er s /c f o - co n ne c t_ r te -
critique_may2010.pdf visited on 26-12-2010.
76
Niranjaradhya,Aruna Kashyap, “Fundamentals of Fundamental Right to Education In
India” Available at, www.ncpcr.gov.in/.../Fundamental_Right_to_ Education_
Dr_Niranjan_Aradhya_ArunaKashyap.pdf, visited on 7th of July, 2013.
139
KIIT Journal of Law and Society (Volume -5: No-1)

500 government schools.77 This goes on to indicate that the government’s long term
plans are to privatize education. Not only this, the existing system of having different
schools imparting varying standards is a serious impediment towards ensuring a
uniform quality of education which has been time and again mandated78 by different
education commissions and national education policies. So in effect the Act seems
to do nothing to remove such inequalities in relation to the quality of education.79
Section 16 of the Act provides that the school authorities will not detain or
expel a child from school till the completion of elementary education.80 This policy
of non detention appears to be a serious compromise on the outcome of education.
This strategy doesn’t leave a room to gauge the degree of understanding of the child
and whether the child has actually acquired the skills or not, and would such a
policy in the long run benefit the child anyhow is actually doubtful. This appears to
be in line with the policy of the Britishers who were determined to produce the so
called “Army of Clerks
Further with regard to the enforcement the Act does not provide an adequate
remedy in case of any purported violation of a right the Act provides that the
complaint should be made first before the local authority which is the monitoring
body ,and also the same body which might be responsible for the alleged violation.81
Isn’t such a provision in clear violation of the principles of Natural Justice according
to which “no one should be a judge in his own cause “ 82
Looking at the financial implications of the Act, the problem of bearing the
financial burden and their shares amongst the central and the state governments has
been a point of controversy since the very beginning.83 Now as it stands the position
is that the share of central government to that of the state government has been
agreed upon as 35:65. 84As it clear that the state government has the main
responsibility of bearing the financial expenses, and it would again put the lack of
funds as an excuse for not enacting the legislation. Already some states Bihar and

77
Unmasking the truth of Right To education Act. Available at, http://
educationatdoorsteps.blogspot.com /2010/01/unmasking-truth-of-right-to-education.html,
visited on 7th of July, 2013.
78
Niranjanaradhya V.P. “People’s Constitutional Right Too Education Versus The Right
Of The Children To Free and Compulsory Education Act 2009.
79
Ibid.
80
Section 16 of the Right of the Children to Free and Compulsory Education Act 2009.
81
Vinay Rai, Narendra Kumar, “Right to Education: The Way Forward”, Perfect Publishers
Pvt Limited,2010, at p.42.
82
The above stated is attributed to Dr Niranjadhya, Fellow Centre For The Child And
Law, NLSIU,Bangalore during the Course of discussion on The Current Area of Research.
83
Vinay Rai, Narendra Kumar, “Right to Education: The Way Forward”, Perfect Publishers
Pvt Limited,2010, p.57.
84
Ibid.
140
Critical Analysis of Child’s Right to Primary Education in India ...

Orissa have asked their respective HRD ministries for the more funds for the
implementation of the said Act. This clearly indicates their reluctance in implementing
the Act.85
Though this Act has paid lip service by declaring the disabled children to be
entitled to free and compulsory education86 however it has again failed to address
the specific needs of children with disabilities in relation to education. The Act does
not make any reference as to whether there should be inclusive education or special
education according to the kind of disability and also what sort of infrastructure is
needed to facilitate the education of children with disability.87
Though the Act has some positive attributes as well, to take an example this
Act bans all forms of corporal punishment in schools which is one of the factors of
children not attending the schools.88 Also there is a provision that the School
authorities should issue transfer certificate when a child is required to move from
one school to another.89It also provides that there shall not be denial of admission if
a child is not able to produce the documentary evidence e.g. Proof of date of birth.90
But despite these provisions the Act doesn’t seem to guarantee any meaningful
right to education to the children of this country.
v. Right To Education Of The Children In Special Circumstances
The previous sections of this paper have focused on the right of education of
children in the light of the constitutional provisions and the international regime on
the said area. There are some children who owing to some special circumstances
other than the ones already mentioned have been denied the right to education.
These children form a special category, whose rights to education need to be
addressed.91 Unfortunately there is no or very little mention of their right to education
specifically. This section would attempt to look into some such aspects
a. Right to Education of Children in Conflict Ridden Zones
Worldwide there are numerous children who do not receive the benefits of
education due to a plethora of reasons e.g. natural disasters, conflicts, etc which

85
Ibid.
86
See Section,3 of The Right Of Children To Free and Compulsory Education Act,2009.
87
The above stated is attributed to Dr Niranjanaradhya,Fellow Centre For Child and
Law,NLSIU,Bangalore during the Course of discussion on the current area of research
on 1st of January, 2011.
88
See Section 17,of The Right Of Children To Free and Compulsory Education Act,2009.
89
See Section 5,of The Right Of Children To Free and Compulsory Education Act,2009.
90
See Section 14,of The Right Of Children To Free and Compulsory Education Act,2009.
91
“Evaluating Children for Disability”, Center for Parent Information and Resources. See,
http://www.parentcenterh ub. Org/repository/evaluation/, last accessed on 20 January 2015.

141
KIIT Journal of Law and Society (Volume -5: No-1)

have an adverse impact on their lives.92 This section would look into the impact on
children’s education in some conflict ridden zones in India, focusing primarily on
the State of Jammu and Kashmir. In India, there are some States particularly Jammu
and Kashmir, and certain Northeastern states where a lot of disturbance is prevalent.93
Due to the peculiar conditions the interests of the children in such situations are
negatively affected. Though there are some special measures taken up by the
government in respect of the right to education in the form of allocation of funds
and various schemes, still they seem to be inadequate.94 Though the conflict has
been continuing in Kashmir for more than two decades now, education has been
adversely affected at all levels.95 However the importance of elementary education
cannot be undermined because it lays the foundation for the development of children.
If this foundation is slackened the whole future of the children would be at stake. It
is ironic that despite this dismal state of education there in no attempt from the
political corner to overcome this, and which is reflected from the absence of education
from the agendas of the political parties96, mainly for the reason that children are
not vote banks.
The ground reality of education is equally dismal, particularly in the last two
years wherein there have been continuous strikes, curfews due to which there have
been less number of working days.97 So the result being that the students hardly
attend the school, though this applies to all educational institutions. This affects the
quality of education because the entire syllabus is not covered and also there has to
be a compromise on the scheme of evaluation. The result being that the education
suffers both from the point of view of quality and outcome. Also it results children
lagging behind in the standard of education as compared to other states. Given
these situation one wonders what how secure would be the future of such children.
This being one of the effect of conflict on education, but there are many more
ugly facets to it. Firstly due to such prevailing conflicts many children are forced to
quit their education who of their own, by becoming a part of the conflict situation
or being coerced to become its part, the effect being deprivation of the right to
education.

92
Asha Bajpai,”Child Rights In India, Law Policy and Practice”, Oxford University
press,2003,p.307.
93
Shahid Iqbal,Impact of Strikes in Kashmir On School Education http://
shahidforest.blogspot.com/2009/04 /education-loses-to-strikes-in-kashmir.html, visited
on 10th of July, 2013.
94
Ibid.
95
Ibid.
96
Ibid.
97
Ibid.
142
Critical Analysis of Child’s Right to Primary Education in India ...

Secondly, a lot of violence takes place which leads to a number of disabilities


which also results in the discontinuation of education. Not only discontinuation
some of the disabilities also incapacitate the children for life.
Thirdly, there is destruction of infrastructure which also has a direct bearing
on the education, due to the which many a times the school buildings are destroyed
etc which takes a long time to be built again, result being either the students do not
continue their education or it leads to delay in education.98 Again taking the example
of State of Jammu and Kashmir, it has been reported that the existing situation has
led to increased drop outs but also the deterioration in the quality of education.99
Whatever be the case the whole thing boils down to one aspect, i.e, the right to
education of the children is being badly affected. Though the ideal solution would
have been to put an end to the conflict itself; but it is little difficult to achieve due to
the inherent complexities involved. Another possible solution would be that in such
situation the government takes positive steps to ensure that the education of children
should not suffer because of such critical circumstances. So it appears to be the
need of hour that they should address this issue and some special measures be taken
to safeguard the right to education of children in such conflict ridden zones.100 “To
this end UNESCO has said that education in emergencies is needed when there is a
crisis situation created by conflicts and disasters which have been destabilized or
destroyed the education system and which require an integrated process of crisis
and post crisis support.” 101Broadly speaking this programme of education in
emergency situations is based on the principle that education is one of the essential
requirements of children both in times of peace and war.102
b. Right to Education of the Children in Juvenile Detention
Another category of children whose rights to education have been ignored are
the children who are in custody in the juvenile detention centre’s.103 Before proceeding
further, two basic questions need to be answered. Firstly, whether the children in
detention forfeit their right to education?104 Secondly, if answering the first question
in the negative the next question would be about the quality of education to be

98
Dr Saida Affoneuh, “Education Under Occupation”, available at http://www.pwrdc.ps/
site_files /Education%20under%20Occupation.pdf visited on 26th of June, 2013.
99
Nasir Ali,Surinder Jaiswal, “Political Unrest and mental Health In Srinagar”,The
Indian journal Of Social Work,Vol.61,October 2000, at p.607.
100
Dr Saida Affoneuh, “Education Under Occupation”, available at http://www.pwrdc.ps/
site_files/ Education%20under%20Occupation.pdf visited on 26th of June, 2013.
101
Ibid.
102
Ibid.
103
Katherine Twomey, “The Right to Education In Juvenile Detention Under The State
Constitutions”, Virginia Law Review ,Vol 94:765,2008, at p.766.
104
Ibid.
143
KIIT Journal of Law and Society (Volume -5: No-1)

imparted, which is to say whether it should be formal or non-formal education?105


Going by the principles laid down by the Supreme Court in various cases that
the prisoners do not lose their all their rights while in custody.106 Applying the same
analogy to the children in custody there appears to be no reason why other rights
including the right to education should not be made available to them and that too
when the primary purpose is detention as opposed to punishment. It can also be
argued that when ultimate purpose of detention of juveniles is rehabilitation, which
should be understood in a broader sense including the overall rehabilitation of the
child. When we say the purpose of detention is rehabilitation then wouldn’t it be
proper to equip the child with education so that he/she doesn’t suffer any disadvantage
when the child is integrated back in the society. This raises a serious question as to
whether the purpose of detention is in any way in consonance with the best interests
of the child.107 Because here we need to understand that wouldn’t rehabilitation
include within its ambit the educational rehabilitation as well? Even the Juvenile
Justice Care and Protection of Children Act 2000 is silent on this aspect and doesn’t
provide any provision as to the education.108 The researcher further opines that
there should be formal system of education including higher education; otherwise
the whole purpose of rehabilitating a child would be frustrated.109
There are various other categories of children whose right to education are
adversely affected due to no fault of theirs e.g. educational rights of the homeless
Children110 or the children suffering from HIV AIDS, or children with disabilities.111
However an elaborate discussion is beyond the scope of this paper.
CONCLUSION
Having examined the right to education in India it appears that the right is not
being realized in accordance with the provisions of the Constitution. The Judiciary
has played a very crucial role in elevating the status of right to education from that
of a directive principle of State Policy to the status of fundamental rights, but still
elementary education continues to be a dream for the vast majority of children in
India. Though the Government has started various schemes and policies to ensure

105
Ibid.
106
“Inmate Information Handbook Federal Bureau of Prisons”, MCFP Springfield, MO,
see, http://www.bop.gov/ locations/institutions/spg/SPG_aohandbook.pdf, last accessed
on 20th January 2015.
107
Ibid.
108
Asha Bajpai, “Child Rights In India, Law Policy and Practice”, Oxford University
press,2003, at p.307.
109
Ibid.
110
Stanley S Herr, “Children Without Homes: Right To Education and Family
Stability”,University of Miami Law Review,Nov 90/Jan 91, at p.1
111
Also see Asha Bajpai”Child Rights In India, Law Policy and Practice”, Oxford
University press,2003, at p.363.
144
Critical Analysis of Child’s Right to Primary Education in India ...

or to universalize primary education but nothing significant has been achieved. The
right of the children in special circumstances and the preprimary education continues
to be ignored. With regard to the right to education of children in special
circumstances it is high time that some steps be taken to provide education to all
children irrespective of the situation in which they are placed by sheer chance.
Further the Right to Education Act 2009 fails to provide any meaningful or
substantial right to children and it is just an illusory right. The researcher opines
that this enactment is a deliberate attempt to keep the masses unaware and
uneducated.
There seems to be a lack of “political will” to enforce and provide a meaningful
right to education which continues to be “A Chimera”.
BIBLIOGRAPHY
Books & Articles
1. “A Guide to General Comment 7:Implementing Child Rightsin Early
Childhood”, United Nations Committee on the Rights of the Child, United
Nations Children’s Fund and Bernard van Leer Foundation, 20 November,
1989. See, http://www.unicef.org/earlychildhood/files/Guide to_GC7.pdf, last
accessed on 27th December 2013.
2. “Childcare Facilities, Guidelines for Planning Authorities”. See, http://
www.environ.ie/en/Publications/ DevelopmentandHousing/Planning/
FileDownLoad,1601,en.pdf, last accessed on 25th December, 2013.
3. “Children and Youth in Poverty: The Public School Responsibility”. See, http:/
/www.nyspta.org /pdf/Advocacy/Position%20Paper%20 youth%
20in%20poverty%20FINAL%202-10.pdf, last accessed on 20th December,
2013.
4. “Evaluating Children for Disability”, Center for Parent Information and
Resources. See, http://www.parentcenterhub. org/repository/evaluation/, last
accessed on 20 January 2015.
5. “Inmate Information Handbook Federal Bureau of Prisons”, MCFP Springfield,
MO, see, http://www.bop.gov/locations/institutions/spg/SPG_aohandbook.pdf,
last accessed on 20th January 2015.
6. “Key Facts: Poverty and Poor Health, Health Poverty Action”. See, http://
www.healthpovertyaction.org/policy-and-resources/the-cycle-of-poverty-and-
poor-health/the-cycle-of-poverty-and-poor-health1/, last accessed on 20 th
December, 2013.
7. “Right to Education, Department of School Education and Literacy”, Ministry
of Human Recourse Development, Government of India. See, http://mhrd.gov.in/
rte, last accessed on 20 January 2015.
145
KIIT Journal of Law and Society (Volume -5: No-1)

8. “Vienna Declaration and Programme of Action”, United Nations Human Rights.


See, http://www.ohchr.org/EN/ProfessionalInterest/Pages/Vienna.aspx, last
accessed on 28 December 2015.
9. Affoneuh, Dr Saida, “Education under Occupation”, available at http://
www.pwrdc .ps/sitefiles/Education%20under%20Occupation.pdf .
10. Ali ,Nasir ,Surinder Jaiswal, “Political Unrest and mental Health In
Srinagar”,The Indian journal Of Social Work,Vol.61,October 2000.
11. Bajpai, Asha, “Child Rights In India, Law Policy and Practice”, Oxford
University press,2003.
12. Bolashetty Shripad S,Girija,L.L, “Fundamental Human Right To Free And
Compulsory Elementary Education In India:Origin,Progess And Present
Status”,Indian Bar Review, Vol 30,2003.
13. Chowdhry, Dimpy, “Importance of Education”, 2000, See, http://
www.boloji.com/index.cfm?md=Content &sd=Articles&ArticleID=1380, last
accessed on 10th January, 2015.
14. Chowdhury, Rishad, “The Road Less Travelled: Article 21A and the
Fundamental Right to Primary Education in India”, Indian Journal of
Constitutional Law, Vol. 3, No. 1, 2010, pp. 24-46, at p. 25.
15. Dhar, Aarti, “Education is a fundamental right now”, The Hindu, 1 April 2010. See,
http://www.thehindu.com/news/national/education-is-a-fundamental-rightnow/
article337 111.ece, last accessed on 15th December, 2013.
16. Doddawadmath JaysDhree V,Dr Ramesh, “Right To Education and Human
Rights”,KLJ,Vol 02, April 2010.
17. Herr Stanley S , “Children Without Homes: Right To Education and Family
Stability”,University of Miami Law Review,Nov 90/Jan 91.
18. Heymann, Jody, Amy Raub, Adele Cassola, “Constitutional rights to education
and their relationship to national policy and school enrolment”, International
Journal of Educational Development, 39 (2014) , pp. 131–141, at p. 135.
19. Kaushal, Mona, “Implementation of Right to Education in India: Issues and
Concerns”, Journal of Management & Public Policy, Vol. 4, No. 1, December
2012, pp. 42-48, at p. 42.
20. Kumar ,C Raj, “International Human Rights perspectives on The Fundamental
Right To Education-Integration Of Human Rights And Human Development
In The Indian Constitution”, Tulane Journal of International and Comparitive
Law,2004 .
21. Mishra, DR.Pawan Kumar Mishra, “Constitutional Contours of Right To Education
:An Implicit Fundamental right,”,Indian Bar Review,Vol 37,2010.
22. Mukherjee, Saughata “Right To Primary Education, Constitutionality, Judicial
Innovations and Practical Considerations”,available at, www.nlsir.in/.../
146
Critical Analysis of Child’s Right to Primary Education in India ...

076_17%20Right%20to%20Primary%20 Education.pdf.
23. Rai,Vinay, Narendra Kumar, “Right to Education: The Way Forward”, Perfect
Publishers Pvt Limited,2010.
24. Rao, P.P “Fundamental Right To Education”, Journal Of The Indian law
Institute, vol 50,2008.
25. Shah Parth J and Shreya Agarwal, “Right To Education Act :A Crtique”, May
2010,available at http://schoolchoice.in/mediaroom/articlesbysupporters/cfo-
connect_ rtecritique_may2010.pdf .
26. Sinha,Shanta, “Children’s Rights To Education and Democratization Of
Schools”available at http://atncpcr.gov.in/Reports/Democratisation_ of
Schools. pdf.
27. Sripati ,Vijayashri , Arun K. Thiruvengadam, “India: Constitutional Amendment
Making the Right to Education a fundamental Right,” International Journal of
Constitutional Law, January 2004.
Websites
1. http://mhrd.gov.in/rte
2. h t t p : / / s c h o o l c h o i c e . i n/ me d i a r o o m/ a r t i c l e s bys u pp o r t er s / c f o c o
nnectrtecritique_may2010.pdf
3. http://shahidforest.blogspot.com/2009/04/educationlosesostrikesin
kashmir.html,visitedhttp://www.pwrdc.ps/site_files/Education%
20under%20Occupation.pdf
4. http://www.boloji.com/index.cfm?md=Content &sd= Articles &ArticleID =1380
5. http://www.bop.gov/locations/institutions/spg/SPG_aohandbook.pdf
6. http://www.environ.ie/en/Publications/DevelopmentandHousing/Planning/
FileDownLoad,1601,en.pdf
7. http://www.healthpovertyaction.org/policy-and-resources/the-cycle-of-poverty-
and-poor-health/the-cycle-of-poverty-and-poor-health1/
8. h t t p : / / w w w. n y s p t a . o r g / p d f / A d v o c a c y / P o s i t i o n % 2 0 P a p e r
%20youth%20in%20poverty%20FINAL%202-10.pdf
9. http://www.parentcenterhub. org/repository/evaluation/
10. http://www.thehindu.com/news/national/education-is-a-fundamental-right-now/
article337111.ece
11. http://www.unicef.org/earlychildhood/files/Guide_to_GC7.pdf http://
www.ohchr.org/EN/ProfessionalInterest/Pages/Vienna.aspx
12. www.ncpcr.gov.in/.../Fundamental_ Right_to_ Education_Dr_Niranjan
Aradhya_Aruna Kashyap.pdf atncpcr.gov.in/Reports/Democratisation of
Schools.pdf.
13. www.nlsir.in/.../076_17%20Right%20to%20Primary%20Education. pdf,visited

147
KIIT Journal of Law and Society (Volume -5: No-1)

BUILDING CONTRACTS AND LEVY OF VALUE


ADDED TAX - IS THERE ANY ALTERNATIVE?
Sanjay Kumar1

Abstract
The Real Estate Sector is a critical and an integral part of our economy and
is poised for solid growth due to rapid industrialization, commercialization, fast
growing service sector, urbanization and economic development. Not only does it
generate a high level of direct employment, but it also stimulates the demand in
over 250 ancillary industries such as cement, steel, paint, brick, building materials,
consumer durables and so on. The growth of real estate sector (building
constructions) involves huge revenue potentiality for the States. Therefore, to tap
the revenue involved, the States started to levy sales tax2, now replaced with Value
Added Tax3 (hereinafter “VAT”), on the value of materials involved in execution
of building contracts. From the very inception itself, the law as to levy of sale tax
in such contracts has been very controversial and subject to judicial scrutiny
starting from Gannon Dunkerly case (1958) to recent Larsen & Tubro Case
(2013). The author shall try to trace and analyse Constitutional provisions, the
statutory provisions (law) and judicial developments, starting from Gannon
Dunkerly case (1958) to recent Larsen & Tubro Case (2013), as to levy of sale
tax in building contracts. The law as to levy of sale tax in building contracts
treating it as works contracts has been settled with the very recent verdict of
Supreme Court in L&T case (2013). However there might still be some practical
problems as to valuation and computation of sale tax which may result into
uncertain and complicated legal regime. The author has also tried to discuss
stamp duty issues involved in such contracts and, for simplified, reasonable and
rational tax laws and to incentivize the real estate sector, suggested not to levy
VAT but to levy only stamp duty at some higher moderate rate in such cases as
both the levies are, in effect, on the same transaction though legally and technically
may be different.
Introduction
The Real Estate Sector4 is a critical and an integral part of our economy and is
poised for solid growth due to rapid industrialization, commercialization, fast
1
Asst. Professor of Law, The WBNUJS, Kolkata and Associate, 2014-2016, IIAS, Shimla.
2
Sale tax means tax on sale of goods.
3
‘VAT’ means multipoint sale tax with a provision for input tax credit. In the paper, the
terms ‘VAT’ and ‘Sale tax’ have been used interchangeably.
4
For study purpose, real estate sector mean building construction, residential or
commercial.
148
Building Contracts and levy of Value Added Tax - Is there any alternative?

growing service sector, urbanization and economic development together with change
in the life style, family structure, and the people’s expectations of improved living
standards. The sector has a huge multiplier effect on the economy and therefore, is
a big driver of economic growth. It is the second-largest employment-generating
sector after agriculture. Growing at a rate of about 20% per annum, this sector has
been contributing about 5-6% to India’s GDP. Not only does it generate a high level
of direct employment, but it also stimulates the demand in over 250 ancillary
industries such as cement, steel, paint, brick, building materials, consumer durables
and so on.5
Having grown nearly 32% in the decade ending 2011, the urban population is
expected to be around 600 million by 2030 which would see the majority of the
people living in the cities. The urbanization in the developing world is virtually
unstoppable particularly in India which is one of the fastest growing economies in
the world. This is for the reason that countries urbanize rapidly when economies
grow faster. It is attributable to factors such as industrial and service sectors
concentrating in and around urban areas due to better access to material inputs,
larger concentration of consumers, better networking opportunities spawned by
knowledge sharing, skilled manpower and globalization. All these factors would
induce larger migration of people to cities in search of new avenues of employment
and which will lead to greater demand of housing resulting in rapid growth of
building constructions.6
Sales tax being the only productive tax in the State List, almost all the States
have adopted this form of taxation through enactment of their own general sales tax
law. From 2005 and onwards almost all the States have replaced their sales tax
laws by Value Added Tax laws. In fact, the States have come to depend increasingly
upon it for the purpose of revenue.7 Sales tax has largely been replaced by value
added tax (VAT). As the VAT is essentially a tax on sale of goods8, so under the
constitutional scheme, VAT or Sale tax, this makes little difference. If VAT is levied

5
http://www.ficci.com/sector/59/Project_docs/real-eastate-profile.pdf, visited on 16 May
2014.
6
address by Sri Pranab Mukherjee, President of India, on Sustainable Housing for Masses
at Annual Convention of National Real Estate Development Council( NAREDCO) on
7december 2012 at Vigyan Bhavan, New Delhi.
7
around 50-52% of total indirect tax revenue is derived from general sales tax in the
states, as per Indian Public Finances Statistics 2012-13, Ministry of Finance, Department
of Economic Affairs, Economic Division, Government of India)
8
VAT, as in question, is essentially tax on sale of goods. The main difference between
VAT and wristwhile Sale tax is as to mode of computation. Under Sale tax system, the
gross value of the sale transaction is taxed, while under VAT, only value addition to the
goods in the course of sale transaction is taxed.
149
KIIT Journal of Law and Society (Volume -5: No-1)

on sale or purchase of goods; it would be a tax on the sale or purchase of goods, and
its levy would be subject to the provisions of the Constitution applicable to the levy
of sales tax on sale or purchase of goods.9
The growth of real estate sector (building constructions) involves huge revenue
potentiality for the States. To tap the revenue involved, the States started to levy
sales tax on the value of materials involved in execution of building contracts.
However, in Gannon Dunkerly case (1958), SC held that the States have no power
to levy sales tax on building contracts which is one, entire and indivisible, as the
expression ‘ sale of goods’ in Entry 48, List II, Schedule VII, Government of India
Act, 1935 (hereinafter “GOI Act,1935”) has the same meaning as under Sale of
Goods Act, 1930. This resulted to heavy revenue losses to the states. The matter
was referred to Law Commission of India and based on its 61st report May 1974,
the Constitution of India was amended and by virtue of Art. 366(29A) concept of
‘deemed sale’ was introduced. Accordingly States have amended their general sales
tax legislations and are imposing the sales tax on value of materials involved in
execution of buildings contracts treating as ‘works contracts’. In spite of introduction
of Art 366(29A) through 42nd Constitutional Amendment Act, 1982, law as to the
levy and collection of sales tax in case of building contract in the States has been
very complex, subject to various controversies and legal disputes. Very recently, in
2013, the SC has tried to settle down the legal controversies in such cases through
its verdict in Larsen & Toubro Ltd and others v State of Karnataka and others,
CIVIL APPEAL NO. 8672 OF 2013 (Arising out of SLP(C) No.17741 of 2007).
It has also been noticed that States, apart from levy of sales tax, are also
claiming stamp duty on registration of building contracts and sale deed (Conveyance
Deed). Issues arise how the states can claim both sales tax and stamp duty on same
transactions?
The author shall try to ascertain the meaning of ‘sales of goods’, ‘deemed sales
of goods’, background of levy of ‘sales tax’ , meaning and concept of building
contracts(works contracts), legal issues involved, cases laws and wayforward.
Though there are numerous form of works contract, paper shall deal only with the
VAT issues in building contracts which is a composite works contract.
Constitutional Provisions
India is a federal country with written Constitution of India, 1950 (hereinafter
‘the Constitution’) with effect from 26 January 1950. In federation, there is on the
one hand the federal (Union/Central) government and on the other hand, provincial

9
Setalvad, Atul M.; “Law of Sales and Principles of VAT”, Lexis Nexis Butterorths
Wadhwa, Nagpur, 1st edn.2009, p.113)
150
Building Contracts and levy of Value Added Tax - Is there any alternative?

(States) government. Both the governments derive their powers, legislative and
executive, from the Constitution of India. One cannot encroach the powers and
functions of others unless the Constitution provides otherwise. The Constitution is
largely based on the Government of India Act, 1935(herein after GOI Act, 1935).
The Constitution, Art. 246 read with List I empowers the Union, List II empowers
the States, and list III empowers the union and states concurrently subject to art
254 to make the laws on the subject matters mentioned therein respectively. The
residuary powers including levy of taxes has been given to the Union (Art 248).
The principle on which division has been made is that the taxes which are of national
and inter-states importance have been given to Union and the matters of local
importance have been given to the States. Apart from importance, division is also
based on the principle of administrative convenience. Art. 265 clearly lays down
that no taxes shall be levied or collected except by authority of law. It means that
neither Union nor the States have power to levy and collect the taxes by mere
executive orders. In this regard, law has to be duly enacted by the competent
legislature. It is to note that insofar as States are concerned, subject to provisions of
the constitution, they can levy and collect a tax on a subject provided that it is
specifically mentioned in the List II. Insofar as the Union is concerned, it can levy
and collect any taxes specifically mentioned in the List I or otherwise provided the
subject has not been specifically given to the States.10
Prior to the Constitution, the power to levy sales tax had been conferred on the
provincial legislatures by Entry 48, List II, Schedule VII to the GOI Act, 1935
which read as “taxes on sale of goods and advertisements”. The Constitution
empowers the Sates to levy tax on sales and purchase by Entry 54, List II, Schedule
VII which reads as “Tax on sale or purchase of goods other than newspaper subject
to entry 92A, list I, schedule VII”.
Meaning, Concept and Nature of Building Contracts
Building contract is species of works contract. There may be five categories of
the contracts- (i) Contract for sale of goods only; (ii) Contract for works only i.e.
rendering of services or supply of labour only; (iii) Contract for work in which use
of materials is accessory or incidental to the execution of the work; (iv) Contract of
supply of goods where some work is required to be done as incidental to the sale;
(v) Contract for the work to be done for remuneration and supply of materials used
in execution of the work for price i.e. composite works contract. Whether a contract
is a composite contract or not, depends on the facts and circumstances of the case.
Generally, building contracts fall in the last category i.e. composite contracts.

10
Art. 246 r/w List I, Entry 97, Schedule VII and Art. 248; also see the H.S. Dhillon vs.
UOI, AIR 1972 SC 1061.
151
KIIT Journal of Law and Society (Volume -5: No-1)

i. Works Contract vis-a-vis Contract for sale


To understand the legal controversies and issues, it is better to know the
distinction between ‘Works contract’ and ‘Contract for Sale’.
There is no standard formula by which one can distinguish a ‘contract for sale’
from ‘works contract’. The question is largely one of fact depending upon the terms
of contract including the nature of the obligations to be discharged there under and
the surrounding circumstances. If the intention is to transfer for price a chattel in
which the transferee had no previous property, then the contract is a contract for
sale. Ultimately, true effect of an accretion made pursuant to a contract has to be
judged not by artificial rules but from the intention of the parties to the contract. In
a contract of sale the main object is the transfer of property and delivery of possession
of the property, whereas the main object in a contract for work is not the transfer of
property but it is one for work and labour. Another test often to be applied to is;
when and how the property of the dealer in such a transaction passes to the customer
i.e. is it transfer at the time of delivery of the finished article as chattel or by accession
during the procession of the work on fusion to the movable property of the customer?
If it is former, it is a sale, if latter, it is works contract. Therefore, in judging
whether the contract is for sale or for works and labour, the essence of contract or
reality of whole transaction has to be taken into consideration. Essentially, the
question is of interpretation of the contract. It is settled law that the substance and
not the form of the contract is material in determining the nature of the transaction.
No definite rule can be formulated in this regard. Ultimately, the terms and conditions
of the given contract would be determinative of the nature of the transaction whether
it is a sale or works contract. Therefore, this question has to be ascertained on facts
of each case, on proper construction of terms and conditions of the contract between
the parties.11
As per Hudson, a building or engineering contract may be defined as an
agreement under which a person (builder owner or employer) undertakes for reward
to carry out for another (building owner or employer), works of a building of civil
engineering character. In a typical case, the work will be carried out upon the land
of the employer or building owner, though in some special cases obligations to
build may arise by contract. Where this is not so, for example, under building
leases and contracts for the sale of land with a house in the course of erection upon

11
Hindustan Shipyard Lt. v. State of Andhra Pradesh, AIR 2000SC2411; State of Andhra
Pradesh v. Kone Elevators (India) Ltd, (2005)3SCC389.it is to note that SC(Five Judges
Bench) has overruled the ratio, not the observation as mentioned, of of Andhra Pradesh
v. Kone Elevators (India) Ltd, (2005)3SCC389 in M/S Kone Elevator India Lt. v. Sate
of Tamil Nadu, W.P. ( C ) No. 232/2005 decided on 6 May 2014.
152
Building Contracts and levy of Value Added Tax - Is there any alternative?

it. The above statement by Hudson indicates that in a typical case work (structure,
building etc.) will be carried out upon the land of the employer or building owner
though in some special cases an obligation to build may arise by contract where
this is not so.12
It may also be defined as works contract where contractor (builder) agrees to
construct a building as per the specifications contained in the contract and in
consideration therefof, he should receive the payment as provided therein. There is,
in such contract, neither a contract to sell the materials used in the construction, nor
does property pass therein as movables. The materials pass to the owner of the
building only as an accretion to the building. A contract for sale of the materials
cannot be implied for such agreement.13
Building Contracts’ Model
Three are broadly two models14 of building contracts-
i. Builders Model
This business model is most common and is adopted in most of the states.
Under this model, the builders purchase land from private landowners or State /
Development Authorities through registered sale deed/ lease deed. Thereafter, the
builder gets the building plans of the Residential/Commercial complex sanctioned
by the competent authorities. The bookings of the residential apartments/commercial
units are publicized and the builder commences construction work. Contracts/
agreements for sale are executed with the intending purchasers specifying the covered
area, agreed cost, time duration, number & amount of installments, specifications
etc. After the building is complete, conveyance/sale/transfer deeds are executed by
the builder in favour of the purchasers in respect of the land as well as the
constructions/superstructure, on which requisite stamp duty is paid as per the
provisions of Stamp Act and the said deed is duly registered. The possession of the
demised unit is handed over to the purchaser simultaneously with the execution of
conveyance deed.
ii. Developer Model
This business model is in vogue in some of the states, particularly the Southern
states. In this model, the developer enters into a development agreement with
landowner, who hands over the land to the developer for construction of residential/
commercial units. The developer gets the building plans sanctioned. The developer

12
Hudson’s Building & Engineering Contracts, 11 th edn, Vol I, as quoted in Larsen
&Tubro Case 2013 para 75
13
Law commission of India, 61st report, May 1974, p. 13.
14
Jain, Inder Chand; “VAT on Builders-the new perpective”, www. Upvatonline.com.

153
KIIT Journal of Law and Society (Volume -5: No-1)

advertises the project and commences the bookings. The developer enters into
contracts/agreements for construction with the intending purchasers. The
construction of building thereafter commences. After the construction is complete
and on receipt of the agreed amount, the possession of the unit is handed over to the
Allottee on the basis of construction agreement/contract executed earlier. The owner
of the land directly transfers the entire land to the society of owners of the apartments/
units who become the owners of undivided share of land. However, no conveyance
deed is executed in respect of the construction/superstructure by the developer. The
allottee becomes the owner of the construction/superstructure by virtue of contracts/
agreements earlier entered by the developer. This model is flourishing as stamp
duty payable on execution & registration of sale/transfer deed may legally be avoided.
Levy of Sales Tax in building contracts and Judiciary
As seen, there are various kinds of the works contracts. The paper is restricted
only to ascertain the legal position of levy of VAT in case of building contracts
being a composite works contract.
1. Pre Constitution of India (46th Amendment) Act, 1982
States are empowered to levy sales tax provided the transaction results into
sale of goods. The crucial question arises as to meaning of ‘sale of goods’. Is it
same as given under Indian Sales of Goods Act, 1930? Pre 46th Constitutional
Amendment Act 1982, the Constitution did not define the term ‘sale of goods’ for
levy of sales tax. However, Indian Sales of Goods Act, 1930 defines the term ‘sale
of goods’.15
Since the inception of sales tax in India, for the first time in a very comprehensive
manner, the meaning of ‘sale’ for purposes of levy of sales tax was discussed in a
landmark case State of Madrass v. Gannon Dunkerly & Co., AIR 1958 SC560.The
case involved a question of considerable importance on the construction of Entry
48, List II, Sch.VII , the GOI Act 1935 ‘tax on sale of goods’.
The company was engaged in the construction of buildings, roads and other
works. There was a demand, inter alia, of certain sum as sale tax on the value of
materials used by the company in execution of building contract under the Madras

15
Section 4 of the Sale of Goods Act, 1930 defines sale of goods as “a contract of sale of
goods is a contract whereby the seller transfers or agree to transfer the property in goods
to the buyer for a price”. The Act makes it clear that a contract of sale may be absolute of
conditional. The difference between ‘sale’ and ‘an agreement to sell’ is also laid down in
the act. Where under contract of sale, the property in goods is transferred from the seller
to the buyer, the contract is called sale; but where the transfer of property in goods is to
take place at a future time or subject to some conditions to be fulfilled, the contract is
called an agreement to sell.
154
Building Contracts and levy of Value Added Tax - Is there any alternative?

General Sales Tax Act, 193916. The demand was based on the provision Sec. 2(h)
of the Act as amended in 1947, ‘sale means every transfer of property in goods by
one person to another in course of trade or business for cash or for deferred payment
or other valuable consideration. Sale shall include a transfer of property in goods
involved in execution of works contract’. The Act also defined ‘works contract’ ‘as
any agreement for carrying out for cash or for deferred payment or other valuable
consideration the construction, fitting out, improvement or repair of any building ,
road, bridge or other immovable property or the fitting out, improvement or repair
of any movable property’.17
The entire controversy hinges on meaning of the term ‘sales of goods’ in Entry
48, List II, Schedule VII, GOI Act, 1935.The demand was contested on the ground
that the power of Madras legislature to impose a sale tax under entry 48 list II does
not extend to impose a tax on the value of materials used in works, as there is no
transaction of sales in respect of those goods, and that such provision of the Act
authorizing the imposition of such tax are ultra vires to the constitution. The Sales
Tax Appellate Tribunal rejected the contention and maintained the demand of tax.
However on appeal Madras High Court’s Division Bench consisting Satyanarayan
Rao and Rajagopalan,JJ upheld the contention of the company and held that the
expression ‘ sales of goods’ had the same meaning in the Entry 48 which it has in
Indian Sales of Goods Act, 1930.
Aggrieved by the verdict of the High Court, the State of Madras preferred an
appeal to the Supreme Court. The question before the SC was ‘whether the provisions
of the Act are ultra vires, insofar as they seek to impose a tax on the supply of
materials in execution of works contract treating it as a sale of goods by the
contractor(the company). The answer to it depends on the meaning to be given to
the words ‘sale of goods’ in Entry 48, List II, Sch.VII of the GOI Act, 1935.
On this issue, there has been sharp conflict of opinion among the several High
courts.18 The appellant (State of Madras and also the States namely; Bihar, Punjab,
Mysore, Kerala and Andhra Pradesh who have intervened) contended that the

16
‘The general sales tax’ was levied in India first time in 1939 by Mdrass Province
(Tamilnadu) under the Madrass General Sales Tax Act, 1939 through a multi-point
turnover tax.
17
State of Madrass v. Gannon Dunkerly & Co., AIR 1958 SC560, para 4.
18
On one hand, Nagpur HC court bench in Pandit Banarasi Das v. State of MP, (1955)6
STC 93 MP; Rjasthan HC in Bhuramal v. STate of Rajasthan, MANU/RH/0042/1957;
Mohammed Khasim v. stae of mysore, AIR 1955 Mys 42 & Kerla Hc in Gannon Dunkerley
&co. v. Sales Tax Officer, MANU/KE/0079/1957 have upheld the vaidity of such
provisions and on the other hand Madrass HC in this case itself and Hyderabad HC in
Jubilee Engineering Co. Ltd. V. Sales Tax Officer, AIR 1956 Hyd. 79 declared the such
provision invalid being ultra vires to the provincial legislature.
155
KIIT Journal of Law and Society (Volume -5: No-1)

provisions of the Constitution which confer legislative powers should receive a


liberal construction, and that, accordingly, the expression “ sales of goods” in the
Entry 48 should be interpreted not in narrow and technical sense in which it is used
in the Indian Sales Tax Act, 1930, but in broad sense.19 The Court accepted the
contention of the State but raised the question as to what that sense is, whether
popular or legal. The Court, based on various authorities, held that the word “sale
of goods’ in entry 48 must be interpreted in legal sense which is used as in the
Indian Sale of Goods Act, 1930.
Accordingly, in order to constitute a sale it is necessary that there should be an
agreement between the parties for the purpose of transferring title to goods, which
presupposes capacity to contract, that it must be supported by money consideration,
and as a result of transaction property must actually pass in the goods. Unless all
these elements are present there can be no sale. Thus, if merely title to the goods
passes but not as a result of any contract between the parties, express or implied,
there is no sale. So also, if the consideration for the transfer is not money but other
valuable consideration, it may then be exchange or barter but not sale. And if under
the contract of sale, title to goods has not passed, then, there is agreement to sell
and not completed sale. Moreover, in law, there cannot be an agreement relating to
one kind of property and a sale as regards as another. There must be an agreement
for the sale of the very goods in which eventually property passes.20
Finally, the Supreme Court held that in a building contract, the agreement
between the parties is that the contractor should construct a building according to
the specifications contained in the agreement, and in consideration therefof, receive
payment as mentioned therein. There is, in such agreement, neither a contract to
sell the materials (bricks, steel, iron rod, cement, etc) used in the construction, nor
does property pass therein as movables. It is, therefore, impossible to maintain that
there is implicit in a building contract a sale of materials as understood in law. In
building contract property in goods involved in the building will pass to the buyer
only on the principle of accretion (quicquid plantatur solo, solo credit – whatever
is affixed to the ground belongs to the ground) unless there is any express contract
to contrary. The court also turned down the appellant argument that ‘such agreement

19
The appellant strongly relied on sc decision in Naveen Chandra Mafatlal v. CIT,
Bombay City, MANU/SC/0070/1954, in which the question was as to meaning of the
word “income” in entry 54 listI. The court, inter alia, observed that cardinal rule of
interpretation is that ‘ the words should be read in their ordinary, natural and grammatical
meaning, subject to this rider that in construing words in a constitutional enactment
conferring legislative power the most liberal construction should be put upon the words
so that the same may have the effect in their widest amplitude’.
20
Para 51, State of Madrass v. Gannon Dunkerly & Co., AIR 1958 SC560
156
Building Contracts and levy of Value Added Tax - Is there any alternative?

is a composite agreement under which the contractor undertakes to supply materials,


contribute labour and produce the construction, and that it is open to the states in
execution of tax laws to split that agreement into its constituent parts, single out
that which relates to the supply of materials and to impose a tax thereon treating it
as sale’; and held that in case of such building contract, the theory that it can be
broken into its component parts and as regards one of them it can be said that there
is sale must fail both on the grounds that there is no agreement to sell materials as
such, and property in them does not pass as movables.21
To sum up, the expression ‘ sale of goods’ in the Entry 48 is a nomen juris, its
essential ingredients being an agreement to sell movables for a price and property
passing therein pursuant to that agreement. In a building contract which is one,
entire and indivisible and that is its norm, there is no sale of goods, and it is not
within the competence of the provincial legislature under the Entry 48, to impose a
tax on supply of the materials used in such a contracts treating it as sale.22
The case was followed by the SC in its subsequent cases New Indian Sugar
Mills v. Commissioner of Sales Tax, Bihar23 and Bhopal Sugar Industries v. sales
Tax Officer24 where it was held that the expression ‘sale of goods’ as used in the
legislative entries in the Constitution and in the GOI Act, 1935, bears the same
meaning as it has in the Sale of Goods Act, 1930.25
The States, before Gannon Dunkerly case (1958) usually regarded ‘Sale’ as
including works contracts, and the works contracts were, as such, regarded as falling
within the power of States to tax under Entry 54 List II (State List), and tax on that
basis were being levied and recovered.26 However with the verdict of the SC in
Gannon Dunkerly case (1958) the States had become incompetent to levy tax in
such cases and resulting in huge revenue loss to the States. The then Finance Ministers
of the States have requested the Government of India to take necessary legal steps

21
Para 57 & 70, State of Madrass v. Gannon Dunkerly & Co., AIR 1958 SC560
22
To avoid any misconception, the court in last Para 73, State of Madrass v. Gannon
Dunkerly & Co., AIR 1958 SC560, stated that the conclusion has reference to works
contracts, which are entire and indivisible. The ‘works contracts’ may be of several forms
as stated in Hadson on building contracts, 7th edn p. 165. It is possible that the parties
might enter into distinct and separate contracts, one for the transfer of materials for
money consideration, and the other for payment for remuneration for services and works
done. In such case, there are really two agreements, though there is single instrument
embodying them, and the power of the states to separate the agreement to sell, from the
agreement to do work and render service and to impose tax thereon cannot be questioned.
23
AIR 1963 SC 1207.
24
AIR 1964 SC 1037.
25
Law commission of India, 61st report, May 1974, p. 8.
26
Ibid, p. 20
157
KIIT Journal of Law and Society (Volume -5: No-1)

so as to levy sales tax on indivisible works contracts. The matter was referred to the
Law Commission of India for its opinion. The Law Commission considered and
extensively discussed the matter in its 61st report May 1974. The Law Commission
opined that ‘in its judgments on this question, the Supreme Court, with respect
appears to have adopted an unusually restricted interpretation of the expression
‘sale’. It is true that the expression ‘sale’ is not defined in the Constitution- but, it is
a well recognized cannon of construction that the words used in the three Lists
should receive the widest possible interpretation and it was somewhat inappropriate
to have taken recourse to the narrow definition of the word ‘sale’ contained in the
Sale of Goods Act for the purpose of interpreting that expression occurring in the
State List, Entry 54.
The Commission also opined that the power to tax ‘works contract’ should be
given to states and therefore, suggested three alternatives namely; amendment in
the Entry 54, Sate List, Schedule VII, or addition of a fresh Entry in the State List
or insertion in Art. 366 a wide definition of ‘sale’ so as to include ‘works contract’.
However, the Commission preferred for the third alternative i.e. insertion in Art.
366 a wide definition of sale so as to include works contract as it would avoid
multiple amendments.27
Following the Commission report, the Constitution was amended through the
Constitution of India (46th Amendment) Act, 198228 w.e.f. 2 February 1983 and a
new clause 29A29 was inserted into Art. 366 of the Constitution which laid down the

27
Ibid, p. 21
28
The constitutional validity of the Forty-sixth Amendment by which the legislatures of
the States were empowered to levy sales tax on certain transactions described in clauses
(a) to (f) of clause 29-A of Article 366 of the Constitution was challenged and upheld in
Builders association of India v. UOI, AIR 1989 Sc 1371.
29
Art. 366 - In this Constitution, unless the context otherwise requires, the following
expressions have the meanings hereby respectively assigned to them, that is to say—
………..(29A) “tax on the sale or purchase of goods” includes—
(a) a tax on the transfer, otherwise than in pursuance of a contract, of property in any
goods for cash, deferred payment or other valuable consideration;
(b) a tax on the transfer of property in goods (whether as goods or in some other form)
involved in the execution of a works contract;
(c) a tax on the delivery of goods on hire purchase or any system of payment by
installments;
(d) a tax on the transfer of the right to use any goods for any purpose (whether or not for
a specified period) for cash, deferred payment or other valuable consideration;
(e) a tax on the supply of goods by any unincorporated association or body of persons to
a member thereof for cash, deferred payment or other valuable consideration;
(f) a tax on the supply, by way of or as part of any service or in any other manner
whatsoever, of goods, being food or any other article for human consumption or any
drink (whether or not intoxicating), where such supply or service, is for cash, deferred
payment or other valuable consideration, and such transfer, delivery or supply of any
158
Building Contracts and levy of Value Added Tax - Is there any alternative?

inclusive definition of the expression “Tax on sale or purchase of goods”. 30 This is


popularly called as ‘deemed sale’ as they do not fall under the normal definition of
‘sale’.
For our limited discussion, only art. 366(29A)(b) i.e. ‘tax on transfer of property
in goods( whether as goods or in some other form) involved in the execution of a
works contract’ is relevant. The effect of the amendment is that by legal fiction,
indivisible works contracts have been made divisible and thereby the states have
got the power to split such contracts and to levy sale tax on the value of materials
supplied in execution of the works contract.31
2. Post Constitution of India (46th Amendment) Act, 1982
Following the amendment in the Constitution, the States have amended the
definition of ‘sale’ under the respective sales tax legislation so as to include ‘works
contract’. The Constitution does not lay down any definition of the term ‘works
contract’. However the States have defined or explained it in their respective Sales
tax or VAT legislation. The definition of works contract, for levy of sales tax/ VAT,
in all the states is almost same and reads as, “‘works contract’ includes any agreement
for cash or for deferred payment or for valuable consideration, the building
construction, manufacture, processing fabrication, erection, installation, fitting out,
improvement, repair or commissioning of any movable or immovable property” 32.
The levy of Sale Tax/VAT in cases of building contracts has been very
controversial and subject to numerous judicial scrutinies. In K. Raheja Development
Corporation v State of Karnataka33, the appellant, which carried on business of
real estate development and allied contracts, entered into development agreements
with owners of lands. It got the plans sanctioned and thereafter constructed residential
apartments and/or commercial complexes. In most cases before construction, it
entered into agreements with the intending buyers. The agreement provided that on

goods shall be deemed to be a sale of those goods by the person making the transfer,
delivery or supply and a purchase of those goods by the person to whom such transfer,
delivery or supply is made.
30
The constitutional validity of amendment was challenged on various grounds but the
validity has been upheld by the SC in Builders association of India v. UOI, AIR 1989 SC
1371.
31
Builders association of India v. UOI, AIR 1989 SC 1371; M/s. Gannon Dunkerley &
Co. and others v. State of Rajasthan and Others; (1993) 1 SCC 364; Larsen & Toubro Ltd
and others v State of Karnataka and others, Civil Appeal NO. 8672 OF 2013 (Arising
out of SLP(C) No.17741 of 2007) Decided on 26 September 2013.
32
Larsen & Toubro Ltd and others v State of Karnataka and others, CIVIL APPEAL
NO. 8672 OF 2013 (Arising out of SLP(C) No.17741 of 2007) Decided on 26 September
2013. Also see the definition section of various States’ VAT Legislations.
33
AIR 2005 SC 2350 (two judge bench),
159
KIIT Journal of Law and Society (Volume -5: No-1)

completion of the construction the residential apartment or the commercial complex


would be handed over to the buyers, who would get an undivided interest in the land
also. The owners of the land would transfer the ownership of the land directly to a
society which was being formed under the Karnataka ownership flats (regulation of
promotion of construction, sales, management and transfer) Act, 1974 (hereinafter
‘the Act’). The question arose whether the appellant was a dealer and liable to pay
turnover tax under the Karnataka Sales Tax Act, 1957, in relation to the construction
contracts with the prospective buyers as “works contracts”.
The Supreme Court held that u/s 2(1) (ul) of the Act, the definition of “works
contract” is very wide. It is not restricted to a “works contract” as commonly
understood, i.e., a contract to do some work on behalf of somebody else. It also
includes “any agreement for carrying out either for cash or for deferred payment or
for any other valuable consideration, the building and construction of any movable
or immovable property”. The definition does not make a distinction based on who
carries on the construction activity. Thus even an owner of the property may also
be said to be carrying on a works contract if he enters into an agreement to construct
for cash, deferred payment or other valuable consideration. The appellant was
undertaking to build for the prospective buyers on payment of price in various
installments set out in the agreement. Though the appellant was not the owner it
claimed a lien on the property and it had the right to terminate the agreement and to
dispose of the unit if a breach was committed by the buyer. Merely because such a
clause was included in the agreement, the agreement did not cease to be a works
contract within the meaning of the term in the Act. So long as there was no termination
the construction was for and on behalf of the buyer and, therefore, the agreement
remained a works contract. The Court made a sweeping remark that if the agreement
is entered into after the flat or unit is already constructed, there would be no
works contract. But so long as the agreement is entered into before the construction
is complete, it would be works contract.
Although this judgment was in the context of the definition of ‘works contract’
under the Karnataka Sales Tax Act, it is of a great significance for the other states’
sales tax laws which defines ‘sale’ or ‘works contract’ on same or similar line.
However, In Assotech Realty Pvt. Ltd v state of UP34, which was relied upon
in Magus Construction (p) Ltd vs. Union of India35, the petitioner was engaged in
the business of developing the land purchased and constructing the houses/flats
with intention of selling them for consideration to prospective buyers. The petitioner
purchased the land and advertised the construction and proposed sale of flat. Several

34
(2007) 8 VST 7 Ald
35
(2008) 17 VST 17 Guwahati,
160
Building Contracts and levy of Value Added Tax - Is there any alternative?

persons had shown their interest for purchase of flats to be constructed. Consequently
the petitioner had allotted the flats to the prospective buyers/allottees. However, the
terms and condition of the allotment were subject to the sale deed to be signed
between the parties. The Allahabad High Court distinguished the fact of the case
from the fact of K Raheja Development corporation case (2005) and held that the
petitioner is not constructing the flats not for and on behalf of the prospective
allottees but otherwise. The payment schedule would not alter the transaction. The
right, title and interest in the construction continue to remain with the petitioner. It
cannot be said that the constructions were undertaken for and on behalf of the
prospective allotees and, therefore, the constructions in question undertaken by the
petitioner would not fall u/s 2(m) r/w sec. 3F of the U.P VAT Act and are outside
of the purview of the provisions of the act. Thus the builder could not be said to be
a works contractor and was not liable to pay tax.
Later on in Larsen & Toubro Ltd and others v State of Karnataka and others36,
(two judges bench), the facts were very similar to K. Raheja Development
Corporation case, the SC court by its order, dated 19/08/2008, has raised very
serious doubt as to correctness of law laid down by this court in K. Raheja
Development case (2005) and referred the matter for reconsideration to a larger
bench. The Court in its referral order has held that it is important to bear in mind
the distinction between contract for sale and works contract which rests on the
principle that a contract for sale is one whose object is transfer of property in, and,
delivery of possession of, a chattel as chattel to the buyer. When the object of the
work undertaken by the payee for the price is not the transfer of a chattel as chattel,
the contract is one of work and labour. The Court further observed that if the ratio
of K. Raheja Development case (2005) is to be accepted then there will be no
difference between works contract and contract for sale of chattel as chattel.
Very recently, through its judgement on 26 September 2013, the SC (three
judges bench) in Larsen & Toubro Ltd and others v State of Karnataka and others37,
has considered the issues which had been referred by two judge bench of SC in
Larsen & Toubro Ltd and others v State of Karnataka and others38 and also an
appeal against the order of Bombay HC in Maharastra Chamber of Housing
Industry v. State of Maharastra & others39; wherin the Bombay High Court upheld
the constitutional validity of amendment to sec. 2(24) of Maharastra Value added
Tax Act(“MVAT Act”) and the rules 58 & 58(1A) of MVAT Rules and observed

36
(2008) 17 VST 460 SC
37
CIVIL APPEAL NO. 8672 OF 2013 (Arising out of SLP(C) No.17741 of 2007)
38
(2008) 17 VST 460 SC
39
(2012)51 VST 168 Bom
161
KIIT Journal of Law and Society (Volume -5: No-1)

that the works contract have numerous variations and it is not possible to accept the
contention that the contract for works in the course of which title is transferred to
the flat purchaser would cease to be works contract.
It was contended by the appellants that the K. Raheja Development case(
2005) did not lay down the correct law. The main object of the agreement read as a
whole and the substance of the agreement is to sell and convey fraction of the land
together with a fully constructed flat only when all the installments have been fully
paid. The construction is not carried out for and on behalf of the purchaser, but is
carried out entirely by the owner/ developer in order to get the best price for the
land and structure built thereon. No work is carried out for the purchaser who gets
title to the property only after all the work is complete. In case of a conventional
sale, property in goods gets transferred as intended by the parties, while in case of
works contract, property in goods get transferred through accretion. It was also
submitted that the activity of construction undertaken by the promoter/developer
cannot be said to be works contract for the reasons namely; that developer does not
construct at the behest of the flat purchaser as on various occasions the flat is
constructed without there being any booking for the said flat; the main intention of
the agreement between the promoter/developer and the flat purchaser is the sale of
flat and not to appoint the developer as the contractor of the flat purchaser for the
purposes of carrying out the construction of the flat for and on behalf of the flat
purchaser; the flat purchaser does not have any role in conceptualizing the project
of construction nor does he have any say in the designing and lay-out of the building
to be constructed. The flat purchaser does not have any control over the type and
standard of the material to be used in the construction of the building. He does not
get any right to monitor or supervise the construction activity; the ownership in the
material used in the construction remains with the promoter/developer and the said
ownership passes to the flat purchaser only on the eventual conveyance of the flat;
the accretion to the goods happens in the hands of the promoter/developer and not
when the flat is conveyed to the flat purchaser; and the construction linked payment
schedule is nothing but a method of payment in installments.
The Supreme Court rejected the appellants’ contentions and held that the
K.Raheja Development case (2005) lays down the correct position of law.40 There
is no doubt that to attract Article 366(29A)(b) there has to be a works contract but
then what is its meaning. The term “works contract” needs to be understood in a
manner that the Parliament had in its view at the time of Forty-sixth Amendment

40
Larsen & Toubro Ltd and others v State of Karnataka and others, CIVIL APPEAL
NO. 8672 OF 2013 (Arising out of SLP(C) No.17741 of 2007) decided on 26 September
2013, para118, p. 78
162
Building Contracts and levy of Value Added Tax - Is there any alternative?

and which is more appropriate to Article 366(29-A)(b). The term ‘works contract’
in Article 366(29A)(b)is amply wide and cannot be confined to a particular
understanding of the term or to a particular form. The term encompasses a wide
range and many varieties of contract. Ordinarily in the case of a works contract the
property in the goods used in the construction of the building passes to the owner of
the land on which the building is constructed when the goods and materials used are
incorporated in the building. But there may be contract to the contrary or a statute
may provide otherwise. Therefore, it cannot be said to be an absolute proposition in
law that the ownership of the goods must pass by way of accretion or exertion to
the owner of the immovable property to which they are affixed or upon which the
building is built.
The 46th constitutional amendment leaves no manner of doubt that the states
have power to bifurcate the contract and levy sale tax on the value of materials
involved in the execution of works contract. Whether contract involved a dominant
intention to transfer the property in goods is not at all material. It is not necessary
to ascertain what the dominant intention of the contract is.41 Even if the dominant
intention of the contract is not to transfer the property in goods and rather it is the
rendering of service or the ultimate transaction is transfer of immovable property,
then also it is open to the States to levy sales tax on the materials used in such
contract if it otherwise has elements of works contract. When the agreement between
the promoter/developer and the flat purchaser is to construct a flat and eventually
sell the flat with the fraction of land, it is obvious that such transaction involves the
activity of construction inasmuch as it is only when the flat is constructed then it
can be conveyed. Thus there is no reason why such activity of construction is not
covered by the term “works contract”. After all, the term “works contract” is nothing
but a contract in which one of the parties is obliged to Undertake or to execute
works. Such activity of construction has all the characteristics or elements of works
contract. The ultimate transaction between the parties may be sale of flat but it
cannot be said that the characteristics of works contract are not involved in that
transaction. When the transaction involves the activity of construction, the factors
such as, the flat purchaser has no control over the type and standard of the material
to be used in the construction of building or he does not get any right to monitor or
supervise the construction activity or he has no say in the designing or lay-out of
the building, are not of much significance and in any case these factors do not
detract the contract being works contract insofar as construction part is concerned.
For sustaining the levy of tax on the goods deemed to have been sold in execution of

41
See also, Associated Cement Companies Lt. v. Commr. Of Customs,(2001)4SCC593;
Bharat Sanchar Nigam Ltd. V. UOI, (2006)3SCC1; M/s Kone Elevator India Pvt. Ltd v.
State of Tamilnadu, SC( five Judges Bench), WP(C) No. 232/2005 decided on 6 May 2014.
163
KIIT Journal of Law and Society (Volume -5: No-1)

a works contract, three conditions must be fulfilled namely; there must be a works
contract, the goods should have been involved in the execution of a works contract,
and, the property in those goods must be transferred to a third party either as goods
or in some other form. In a building contract or any contract to do construction, the
above three things are fully met. The Works contracts also include building contracts
and therefore without any fear of contradiction it can be stated that building contracts
are species of the works contract.
The argument that the flat purchaser is entitled to transfer of flat and conveyance
of fraction of land only when all the installments have been fully paid and hence the
agreement between the builder/ developer and the flat purchaser is for the sale of
the flat and not one for construction for and on behalf of flat purchaser is without
merit. Effectively, it is the developer who constructs the building for the flat purchaser.
The Developer does so for monetary consideration. The construction is done on
payment of price as agreed upon between the developer and flat purchaser. It is,
thus, not correct to say that the work undertaken by the developer is for himself and
the owner and the construction is not carried for and on behalf of the purchaser.
There is nothing wrong even if transaction is treated as composite contract comprising
of both works contract and transfer of immovable property and levy sale tax on
value of material involved in execution of works contract.
However, The Supreme Court clarified that activity of construction undertaken
by the developer would be works contract only from the stage the developer enters
into a contract with the flat purchaser and, therefore, the value addition made to the
goods transferred after the agreement is entered into with the flat purchaser can
only be made chargeable to tax by the State Government.
With regard to MVAT provisions, the Court held that as the amendment in
explanation b(ii) to sec. 2(24) of MVAT Act was brought because of SC judgement
in K. Raheja Development case (2005) and the judgment lays down the correct
legal position, the provisions are constitutional.
Thus SC approved ratio as laid down in K. Raheja Development Case (2005).
Now it well settled that if builder enters into an agreement with the prospective
buyers, before or during but not after the completion, the construction of building,
it is works contract and shall be liable for VAT. Thus, time of entering the agreement
is crucial. Once the building is complete, agreement entered thereafter is sale of
immovable property and shall not be subject to VAT.
Stamp Duty and Registration Fees
Stamp duty is a kind of tax imposed by the competent legislature on certain
instruments containing the transaction, and not on transaction, which have legal
effect. The duty may be fixed or ad valorem i.e. as per value.
164
Building Contracts and levy of Value Added Tax - Is there any alternative?

The Constitution empowers both Parliament and State Legislature concurrently


to make the law relating to stamp duty.42 However so far rates are concerned, the
Constitution empowers the Parliament and the State Legislature to determine the
rates of stamp duty in respects of instruments mentioned in Entry 9143, Union List
and Entry 6344, State List, Schedule VII respectively. Though the Parliament levy
the duty under entry 91, Union List, but the duty is collected and retained by the
States concerned.45 This ensures the uniformity of rates across the States.46 The
revenue from such duties forms a considerable part of revenue of the States.
While stamp duty is a tax on value of instruments containing various
transactions, registration fees are payments made for a specific service provided by
the government- that of recording contracts and deeds.47 It is to note that stamp
duty is imposed on instruments and not the transaction. Stamps are of two kinds,
impressed and adhesive. Thus if a legal transaction can be effected orally or by
conduct only, no stamp duty is attracted, as there is nothing to which the stamp can
be affixed. The thing which is made liable to duty is instrument.48 Duly stamped
instruments get evidentiary value and are admitted as evidence in court of law.
i. Statutory Framework
The Indian Stamp Act, 1899 (the “Indian Stamp Act”) lays down the law relating
to stamp duty. It extends to the whole of India, except the State of Jammu and
Kashmir. It includes all transactions between parties. Section 2(14) of Indian Stamp
Act, 1899 defines the ‘instrument’ as every document by which any right or liability,
is, or purported to be created, transferred, limited, extended, extinguished or recorded.
The Act also defines the term “duly stamped” as applied to an instrument. The
phrase means that the instrument bears an adhesive or impressed stamp of not less
than the proper amount and that such stamp has been affixed or used in accordance
with law for the time being in force. The Finance (No. 2) Act, 2004 inserted the
definition of “stamp” as any mark, seal or endorsement by any agency or person
duly authorized by the State Government, and includes an adhesive or impressed

42
concurrent list, Entry 44- Stamp duties other than duties or fees collected by means of
judicial stamps, but not including rates of stamp duty
43
union list, entry 91 – Rates of stamp duty in respect of bills of exchange, cheques,
promissory notes, bills of lading, letters of credit, policies of insurance, transfer of shares,
debentures, proxies and receipts.
44
State list, entry 63 – Rates of stamp duty in respect of documents other than those
specified in the provisions of List I with regard to rates of stamp duty.
45
Art. 268 of Constitution of India.
46
Rao, M. Govinda and Shah, Anwar (edt); States’ fiscal management and regional
equity an overview, oxford university press , new delhi (2009), p. 53
47
Supra, p. 53
48
Monroe, J.G; the law of stamp duties, London, sweet & Maxwell ltd., 1961, 3rd edn, p.3.
165
KIIT Journal of Law and Society (Volume -5: No-1)

stamp, for the purposes of duty chargeable under Indian Stamp Act, 1899. The
Indian Stamp Act, 1899 is a Central enactment and States have powers to adopt the
Indian Stamp Act, 1899 with amendments to the same to suit the transactions peculiar
to each State. Section 3 of the Indian Stamp Act, 1899 is the charging section and
stipulates that stamp duty has to be paid on the instruments provided in Schedule I
to the Indian Stamp Act, 1899. Certain States have introduced Schedule IA to the
Indian Stamp Act, 1899 being the stamp duty payable in that State.49 States such as
Gujarat, Maharashtra, Karnataka, Kerala and Rajasthan have their separate State
Stamp Acts, while many States follow the 1899 legislation. However, where stamp
duty payable on certain transactions is not covered in the respective State Stamp
Act, the State/s refer to the stamp duty rates provided in the Indian Stamp Act,
1899 for such transactions.50
It is to be noticed that a practice of transferring interest in immovable property
through General Power of Attorney Sales (for short ‘GPA Sales’) or Sale Agreement/
General Power of Attorney/Will transfers (for short ‘SA/GPA/WILL’ transfers) are
being followed across the States in India. The term GPA/ SA are misnomers as
there cannot be a sale by execution of a power of attorney nor can there be a
transfer by execution of an agreement of sale or will. Transfer of immovable property
by way of sale can only be by a deed of conveyance (sale deed). In absence of sale
deed, duly stamped and registered as required by law, no right, title or interest in an
immovable property can be transferred. These are transactions, where a purchaser
pays the full price, but instead of getting a deed of conveyance gets a SA/GPA/
WILL as a mode of transfer, either at the instance of the vendor or at his own
instance.51
These kinds of transactions are evolved to avoid prohibitions/conditions
regarding certain transfers, to avoid payment of stamp duty and registration charges
on deeds of conveyance, to avoid payment of capital gains on transfers, to invest
unaccounted money (‘black money’). Such transactions are needed to be discouraged
as it leads to revenue loss to the States, generation and circulation of black money,
title disputes and growth of real estate mafia and criminalization of real estate
transaction.52
Some states have amended the stamp duty laws subjecting agreements of sale
with delivery of possession and/or irrevocable powers of attorney in favour of non-

49
Stamp Duty Some Frequently Asked Questions, western Indian regional council of the
institute of chartered accountants of India, 1 st edn. P.2.
50
Ibid, p.2-3.
51
Suraj Lamp & Industries Pvt Ltd. V. State of Haryana & Anr., SC, SLP( C ) No
13917/2009 decided on 11 October 2011.
52
Ibid.
166
Building Contracts and levy of Value Added Tax - Is there any alternative?

family members authorizing sale, to the same stamp duty as deed of conveyance.
These measures, no doubt, to some extent plugged the loss of revenue by way of
stamp duty on account of parties having recourse to SA/GPA/WILL transactions,
instead of executing deeds of conveyance.53
Thus instruments containing transactions relating to immovable property (
building or real estate) either through GPA sale, agreement for sale or conveyance
deed(sale deed) are required to be compulsorily registered and duly stamped with
same rate of stamp duty.
Conclusion and Suggestions
Real estate sector, an integral part of Indian economy, growing at a rate of
20% with around 6% of GDP is the second largest employment generating sector
after agriculture. The speedy growth of real estate involves huge revenue potentiality
for the states which are always in search of more and more avenue for generating
revenue to meet the growing expenditure. The sates’ power to impose sale tax in
case building contracts treating as works contract, after set back in Gannon Dunkerly
case (1958), has been affirmed by introduction of Art. 366(29A) to the Constitution
through 46th constitutional Amendment 1982. There has been no controversy with
regard to sale of ready mate flats as it is considered as sale of immovable property
and so there is no question of VAT liability. Controversy arises only in those cases
where builder enters into an agreement for sale of flats with perspective purchasers
when the construction is yet to commence or is under progress.
With the verdict of the SC in Larsen & Tubro Case (2013) which has approved
the ratio laid down by it in K Raheja Developmet case (2005), irrespective of
model of building contracts, the controversy relating to the States’ power to levy
sale tax in case of agreement for sale of building entered into, between builder and
prospective purchaser, during pre construction or under construction, but not after
the completion of building, has been settled. However in such contracts, the State
can tax only value of materials which have been involved in the building contract
after the agreement entered into, therefore, the States have to frame the valuation
rules very carefully for the determination of taxable value in case of building contracts
involving sale of flats under construction, as value, in each case, could be different
based on the stage of completion of the work, when the agreement is entered into.
When shall a flat be treated as complete? Answer to the question is crucial as no
VAT can be imposed by the states if the flats are sold after construction is complete.
Is it when actual construction of flat or entire project is complete or when certificate
of completion of flat or entire project is granted by the competent authority? These

53
Ibid
167
KIIT Journal of Law and Society (Volume -5: No-1)

things need to be clarified. Thus the valuation issues are going to be very critical in
such contracts.
The Sates would aggressively purport to tax building contracts, if not already
done in the last few years post SC verdict in K. Raheja Development case (2005).
Thus sale of building in such cases shall be subjected to both VAT and stamp duty
which may lead to steep rise in prices of the buildings (Flats). Although the legal
position as to levy of VAT in such cases have been settled, but the valuation issues
which are critical, may result into complex and irrational law.
There is need to incentivize the real estate sector to ensure the rapid economic
growth and to make available houses at the affordable prices to everyone which is
one of the basic needs of human being. It can be done by way of simplifying and
rationalizing taxes in building contracts. Therefore, author is of opinion that the
States should think not to levy VAT but to levy only stamp duty at moderate rate in
such cases as both the levies i.e. VAT and stamp duty, are, in effect, on the same
transaction though legally & technically may be different. This may be a win-win
situation for all the stakeholders namely; builders or developers, consumer
(purchasers), States and overall economy.

168
HOW FAR WOMEN ARE EMPOWERED AT WORK
PLACES: AN ANALYSIS OF THE SEXUAL
HARASSMENT OF WOMEN AT WORKPLACE
(PREVENTION, PROHIBITION AND REDRESSAL)
ACT, 2013 AFTER ONE YEAR
Gagandeep Kaur *

ABSTRACT
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and
Redressal) Act, 2013 is a legislative process to protect women from sexual
harassment at their place of work. The backbone of this legislation lays in the
spirit of Article 14, 15 and 21 of the Constitution of India. Sexual harassment
results in violation of the fundamental and basic rights of a woman to equality
and her right to life as well as to live with dignity. Above all this immoral behavior
breaches the right to carry on any occupation, trade or business which includes a
right to a safe environment free from sexual torment. This first part of this article
is focused on the analysis of effectiveness of Indian law on prevention of sexual
harassment at work places. The second part of this article is dedicated to
constitutional protective shield on gender sensitization. The last part of this article
has highlighted that a year after the law was notified, the number of harassment
cases have gone up. This Act has made it mandatory for all offices with 10 or
more employees to have an internal complaints committee to address grievances
in a stipulated time or face penalty. Such cases must be disposed of by in house
complaint mechanism within 90 days failing which a penalty will be imposed.
Repeated non-compliance of the provisions can even lead to cancellation of license
or registration of the organization. It is submitted by the researcher that Indian
Incorporations takes baby steps on women’s safety at work place. Empowerment
does not happen automatically it needs the opportunity. Most crimes against women
go unreported. The condition of women in India cannot be improved by any single
method or merely by pronouncing the word ‘Women Empowerment’. Legal
enactments without providing adequate setup for their implementation are mere
false promises in the name of the word ‘Women Empowerment’.

*Assistant Professor in Law, Law College Dehradun, Uttranchal University, Uttrakhand.


malhotragagan17@yahoo.co.in
169
KIIT Journal of Law and Society (Volume -5: No-1)

Introduction
IT IS HARD TO BE A WOMAN
You must think like a Man, Act like a Lady, Look like a Young Girl, And work
like a Horse.
-Tumblr
Social change is an inevitable phenomenon of every society because social
conditions never remain static. With the influence of westernization and feminism
philosophy women have pierced the boundaries of home and they have taken leading
roles in economic sectors of society. In the era of Information and Communication
Technology it is taught to girls by parents that “Don‘t be a woman that needs a
man; But be a woman a man needs”. Looking at the wisdoms in India, it is difficult
to understand the discrimination of girls and women or the assaults happening on
them at present. On one hand female divinities are worshipped with greatest
reverence, but on the other hand women have to deal with oppression and humiliation
in political, social and economical aspects in their daily life. Women constitute
majority of the world’s population but India has shown disproportionate sex ratio
whereby female’s population has been comparatively lower than males. As far as
their social status is concerned, they are not treated as equal to men in all the
places. In the Western societies, the women have got equal right and status with
men in all walks of life. But gender disabilities and discriminations are found in
India even today. The paradoxical situation has such that she was sometimes
concerned as Goddess and at other times merely as slave.1 The economic change
implicates societal alteration, which determines in conflicts. The nature and role of
women in the society is presented by great heterogeneity, divergence and multiple
paradoxical appearing phenomena as India itself.2
Women And Feminist Philosophy
The term women empowerment is largely influenced by feminist philosophy.
The term feminist philosophy, first coined during the new beginning at the turn
from the 1960s to the 1970s serves as an umbrella term for the entire development
of feminism.3 The core concern of the feminist philosophy is to expose the manifold
ways in which men are privileged and to oppose discrimination against women.

1
Dhruba Hazarika, “Women Empowerment in India: A Brief Discussion”, International
Journal of Educational Planning & Administration, Volume 1, Number 3, 2011, pp.
199-202 at p. 199.
2
Retrieved from:http://www.hss.de/fileadmin/india/downloads/India_Women_in_the_
society_01.pdf visited on 14 January, 2015.
3
Herta Nagal-Docekal, Feminist Philosophy, Westview Press, Colarado, 2004, p. Xiii.
170
How Far Women are Empowered at Work Places ...

Consequently, it is important to address what we mean ‘women’ and ‘men’. It seems


reasonable to first examine the colloquial use of these expressions and the ideas
conveyed by them. On the one hand, the terms ‘women’ and ‘man’ are used to
express the obvious bodily differences of each sex. On the other hand, a number of
idiomatic expressions refer to social roles, for instance rearing of children as women’s
work or business as men’s work.4 Women have always been misled by the imposed
ideal of womanhood. Be it her gentle manners and natural tenderness or her lack of
physical strength. She has always found herself hidden behind the mist of illusions,
fenced in from all sides and forced away from the real world into the seclusion of a
helpless and dispossessed life. Her domain has been demarcated around her home.
She is consistently reminded that man is the maker of the outside world and women’s
duty is to make a home.5 With the passage of time, in the agrarian set up the duties
are extended to work in the fields, cultivation, plantation, forestry, fishery and
weaving in industries with the advancements of science, the lifestyle of women has
changed. After independence of our country, due to the development of education
and technology women get jobs in the urban areas and excelled in all the fields of
professions.6
The phenomenon of 21st Century which is the centre of attention at international
level is ‘Women Empowerment’. In India, women have been greatly praised in the
literature and religion as ‘Devi’ or ‘shakti’ or ‘ardhangini’ and a portion of a man,
however, by the contrivance of this civilization, this slice or part of man has assumed
a very little proportion of the whole of man by reducing woman to an appendage of
his life, a parasite, a domestic animal, a pleasure resort. Today the term Women
Empowerment means conferring more rights to women so that they are able to
reach at similar pedestal with men. Empowerment is now increasingly seen as a
process by which the one can gain greater control over their lives. This means
control over material assets, intellectual resources and ideology. It involves power
to, power with and power within. Some define empowerment as a process of
awareness, of capacity building leading to greater participation, effective decision-
making power and control leading to transformative action. This involves ability to
get what one wants and to influence others on our concerns. With reference to
women the power relation that has to be involved includes their lives at multiple
levels, family, community, market and the state. Importantly it involves at the
psychological level women’s ability to assert them and this is constructed by the
‘gender roles’ assigned to her especially in a cultural which resists change like

4
Ibid.
5
Shama A. Chatterji, Women in Perspective: Essays on Gender Issues, Vitasta Publishing
Pvt. Ltd., New Delhi, 2010, p. 3.
6
P. Griffiths, Modern India, Ernest Benn Ltd., London, 1957, p. 42.
171
KIIT Journal of Law and Society (Volume -5: No-1)

India. Empowerment includes the ability to make decisions about personal/collective


circumstances; the ability to access information and resources for decision-making;
ability to consider a range of options from which to choose (not just yes/no, either/
or.); ability to exercise assertiveness in collective decision making; having positive-
thinking about the ability to make change; ability to learn and access skills for
improving personal/collective circumstance; ability to inform others’ perceptions
though exchange, education and engagement; involving in the growth process and
changes that is never ending and self-initiated; increasing one’s positive self-image
and overcoming stigma and increasing one’s ability in discreet thinking to sort out
right and wrong. 7
Economic Freedom Of Women: Fundamental Right To Occupation, Trade And
Employment
Women constitute half of the world’s total population, but they were subjected
to inequality and oppression due to economic dependency on men. To effect her
complete emancipation and make her equal to man, it is necessary for the national
economy to be socialized for women also. Traditionally, men were supposed to be
the principal bread winners for the family while women are left to look after the
household chores. However, in the modern era of science and technology, women
are far better than men in context of their performance and work.8 All the fields of
knowledge like doctors, engineers, banks, computer engineers, mechanism, pilot,
lawyers and teachers etc. etc., women are everywhere. However, on one hand we
are giving them economic security; on the other hand, they are subjected to sexual
exploitation at work places. The sociological investigation of the human society at
the global level has revealed that the women in general faced unfair and unequal
treatment at the hands of their own and other men. Their role in totality was
characterized with dependency, inferiority and acute sufferings. They have faced
systematic discrimination, suppression and multidimensional exploitation. The
historical records of the human past reveals that this situation related to women
prevailed more or less in all human societies in different race, religion, economy,
social structure, culture and other fields of life.9
From the agriculture to industries the footprints of women are found everywhere.
Women plow fields and harvest crops while working in farms, women weave and
make handicrafts while working in household industries, women sell food and gather

7
Uma Shankar Jha, Arti Mehta, Latika Menon, Status of Indian Women: Crisis and
Conflict in Gender Issues, Kanishka Publishers, New Delhi, 1998, p. 1.
8
Chitrapu Swarajyalaxmi, Women at Work: Insights from Indian Organizations, Discovery
Publishing House, New Delhi, 1992, pp. 21.
9
B.A. Dabla, Multi-Dimensional Problems of Women in Kashmir, Gyan Publishing House,
New Delhi, 2007, p. 39.
172
How Far Women are Empowered at Work Places ...

wood while working in the informal sector. Additionally, women are traditionally
responsible for the daily household chores (e.g., cooking, fetching water, and looking
after children). Since Indian culture hinders women’s access to jobs in stores, factories
and the public sector, the informal sector is particularly important for women. There
are estimates that over 90 percent of workingwomen are involved in the informal
sector.10 The informal sector includes jobs such as domestic servant, small trader,
artisan, or field laborer on a family farm. Most of these jobs are unskilled and low
paying and do not provide benefits to the worker. More importantly, however, cultural
practices vary from region to region. Though it is a broad generalization, North
India tends to be more patriarchal and feudal than South India. Women in northern
India have more restrictions placed on their behavior, thereby restricting their access
to work. Southern India tends to be more egalitarian, women have relatively more
freedom, and women have a more prominent presence in society. Cultural restrictions
however are changing, and women are freer to participate in the formal economy,
though the shortage of jobs throughout the country contributes to low female
employment.
In the recent years, conditions of working women in India have improved
considerably. More and more women find themselves in positions of respect and
prestige; more and more workplaces are now populated with women who work on
equal terms as men. Working is no longer an adjustment, a mere necessity; but a
means to self worth and growth.11 Women have now not only found their place in
work places but are also party to governance. In recent years there have been explicit
moves to increase women’s political participation. Women have been given
representation in the Panchayati Raj system as a sign of political empowerment.
There are many elected women representatives at the village council level. At the
Central and State levels too women are progressively making a difference. Today
we have women Chief Ministers in five large states of India. The Women’s reservation
policy Bill is slated to further strengthen political participation.12
Constitutional and Legal Protective Shield On Gender Sensitization
The Constitution of India guarantees equality of sexes and in fact grants special
favors to women. These can be found in three Articles of the Constitution. Article
14 says that the government shall not deny to any person equality before law or the
equal protection of the laws. Article 15 declares that government shall not

10
Retrieved from<http://www.rise-of-womanhood.org>, visited on 6 February, 2014.
11
Retrieved from< India - Women Reservation Bill 2010 and empowerment of females –
A detailed Analysis <http://realityviews.blogspot.com/2010/03/india-women-reservation-
bill-2010-and.html>, visited on 10 February 2011.
12
Retrieved from< http://india.mapsofindia.com/india-forum/womens-in-india.html>,
visited on 10 February 2013.
173
KIIT Journal of Law and Society (Volume -5: No-1)

discriminate against any citizen on the ground of sex. Article 15(3) makes a special
provision enabling the State to make affirmative discriminations in favor of women.
Moreover, the government can pass special laws in favor of women. Article 16
guarantees that no citizen shall be discriminated against in matters of public
employment on the grounds of sex. The Supreme court enunciated the principle of
“equal payx for equal work”.13 Article 42 directs the State to make provision for
ensuring just and humane conditions of work and maternity relief. Above all, the
Constitution imposes a fundamental duty on every citizen through Articles 15 (A)
(e) to renounce the practices derogatory to the dignity of women. All these are
fundamental rights. Therefore, a woman can go to the court if one is subjected to
any discrimination. When we talk about constitutional rights of women in India, we
mainly pertain to those areas where discrimination is done against women and
special laws formulated to fight those bigotries. The most important issues stand as
those pertaining to marriage, children, abortion, crimes against women, and
inheritance.14
Before modern Hindu laws were passed, child marriages were the norms, inter-
caste marriages were banned, the girl became a part of the husband’s family, and
polygamy was common. In the 19th century, the British rulers passed several laws
to protect customs and traditions while abolishing detestable practices like Sati.
Some such revolutionary laws were Hindu Widows Remarriage Act 1865 and the
Brahma Samaj Marriage Act 1872, the forerunner of the present Special Marriage
Act. In the beginning, the Act sets four essential conditions for a valid Hindu
marriage. They are: 1. Monogamy; 2. Sound mind; 3. Marriageable age; 4.
The parties should not be too closely related .Polygamy was permitted among Hindus
before the Act was passed in 1955. However, after the act was passed, any man
marrying again while his wife is living will be punished with fine and imprisonment
up to seven years. Formerly, child marriages were common. The Child Marriage
Act of 1929 was not very effective as such marriages were continued to be performed.
Now, however, the bridegroom must be 21 years old and the bride 18 years. However,
there is a separate Muslim Code of Conduct, which allows polygamy of up to four
wives as per Islamic laws.15 A marriage may be invalid without the boy or the girl
realizing it at the time of the wedding. A civil marriage would be void if four essential
conditions are not complied with. These conditions are listed in the Special Marriage
Act (Section 4), as enumerated below:

13
Ranbir Singh vs. Union of India, AIR 1982 SC 879.
14
Narendra Kumar, Constitutional Law of India, Pioneer Publications, Delhi, 2002, pp.
158-159.
15
Retrieved from<http://www.al-islam.org/laws/, visited on 7 February, 2013.

174
How Far Women are Empowered at Work Places ...

1. If it is bigamy
2. If either party was suffering from mental disorder
3. If the boy has not completed 21 years and the girl 18 years
4. The boy and the girl are too closely related, or in legal language, are “within
degrees of prohibited relationship” unless custom governing at least one party
permits the marriage between them. Prohibited relationships are listed in the
Special Marriage Act.
5. A fifth reason for invalidating a marriage is impotence of either party.
There are some grounds available to the wife only, both in Hindu and civil
marriages. One such ground available exclusively to the wife is her husband’s
commission of rape, sodomy or bestiality. Under the Hindu Adoptions and
Maintenance Act 1956, a Hindu wife is entitled to be maintained by her husband.
Section 125 of the Criminal Procedure Code also deals with maintenance of wife
and children. If there is a decree of maintenance against the husband and the couple
has been living apart for over one year, it would be a ground for the wife to seek
dissolution of marriage. Here again the Muslim Personal Law has a different set of
conditions for the annulment of an Islamic marriage.
The Dowry Prohibition Act of 196116 says that any person who gives, takes, or
abets the giving or taking of dowry shall be punished with imprisonment, which
may extend to six months or with fine up to Rs. 5,000 or with both. Dowry that
started off as a practice to give away presents to the departing daughter, usually
some resources to begin her new married life, slowly assumed extraordinary
proportions and turned into a social evil. Brides were expected to bring the “gifts”
regardless of their personal willingness. The bride’s family could no longer have an
individual say; lists were prepared and sent to the girl’s house before the final
agreement between the two families. The condition being that the boy would marry
the girl only if the demands were met. Such a custom is being practiced not only in
India but also in other countries like Bangladesh and Nepal. The reason behind this
custom is the poor economical condition of the people along with a lack of education;
unawareness of legal rights among women and a general bias against the women.
The Hindu Succession Act gives male and female heirs almost equal right to
inheritance. Section 14 says that any property possessed by a female Hindu shall be
held by her as full owner and not as a limited owner.17

16
Retrieved from<http://lawcommissionofindia.nic.in/51-100/Report91.pdf, visited on
11 February, 2013.
17
Retrievedfrom<http://www.vakilno1.com/bareacts/hindusuccessionact/hindusucces
sionact.htm >, visited on 11 February, 2014.
175
KIIT Journal of Law and Society (Volume -5: No-1)

The Indian Penal Code, 1960 provide adequate protection to women against
dowry deaths18, Rapes19, Cruelty from husband and their relatives20 and from indecent
comments21. Crimes like rape, kidnapping, eve teasing and indecent exposure can
be grouped as crimes against women. Rape is the worst crime against women after
murder and the maximum punishment under the Indian Penal Code (IPC) is life
imprisonment. An abortion or miscarriage due to natural causes is not an offence.
Therefore, the law does not deal with it. However, violent and forceful abortion is
a crime. Sections 312 and 316 of the Indian Penal Code deal with abortion as

18
Section 304 B of Indian Penal Code explains Dowry death as: (1) Where the death of a
woman is caused by any burns or bodily injury or occurs otherwise than under normal
circumstances within seven years of her marriage and it is shown that soon before her
death she was subjected to cruelty or harassment by her husband or any relative of her
husband for, or in connection with, any demand for dowry, such death shall be called”
dowry death”, and such husband or relative shall be deemed to have caused her death.
Explanation.- For the purposes of this sub- section,” dowry” shall have the same meaning
as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961 ).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which
shall not be less than seven years but which may extend to imprisonment for life.
19
Section 375 of the Indian Penal Code, 1860: A man is said to commit” rape” who,
except in the case hereinafter excepted, has sexual intercourse with a woman under
circumstances falling under any of the six following descriptions:- First.- Against her
will. Secondly.- Without her consent. Thirdly.- With her consent, when her consent has
been obtained by putting her or any person in whom she is interested in fear of death or
of hurt. Fourthly.- With her consent, when the man knows that he is not her husband,
and that her consent is given because she believes that he is another man to whom she is
or believes herself to be lawfully married. Fifthly.- With her consent, when, at the time of
giving such consent, by reason of unsoundness of mind or intoxication or the
administration by him personally or through another of any stupefying or unwholesome
substance, she is unable to understand the nature and consequences of that to which she
gives consent. Sixthly.- With or without her consent, when she is under sixteen years of
age. Explanation.- Penetration is sufficient to constitute the sexual intercourse necessary
to the offence of rape. Exception.- Sexual intercourse by a man with his own wife, the
wife not being under fifteen years of age, is not rape.
20
Section 498A: Husband or relative of husband of a woman subjecting her to cruelty:
Whoever, being the husband or the relative of the husband of a woman, subjects such
woman to cruelty shall be punished with imprisonment for a term which may extend to
three years and shall also be liable to fine. Explanation-For the purpose of this section,
“cruelty” means-(a) Any willful conduct which is of such a nature as is likely to drive the
woman to commit suicide or to cause grave injury or danger to life, limb or health whether
mental or physical) of the woman; or (b) Harassment of the woman where such harassment
is with a view to coercing her or any person related to her to meet any unlawful demand
for any property or valuable security or is on account of failure by her or any person
related to her meet such demand.
21
Section 354: Assault or criminal force to woman with intent to outrage her modesty.—
Whoever assaults or uses criminal force to any woman, intending to outrage or knowing
it to be likely that he will there by outrage her modesty, shall be punished with
imprisonment of either description for a term which may extend to two years, or with
fine, or with both.
176
How Far Women are Empowered at Work Places ...

crime. Section 313 deals with abortion without the consent of the woman. The
punishment could even be life imprisonment. The Criminal Procedure Code, 1973
has been amended in 2005 for providing a safe and secure procedure from the
prosecution of rape victims.22
The GUIDELINES and NORMS23 are laid down by Supreme Court of India
in the case of Vishakha versus State of Rajasthan prescribed. Keeping in view the
definition of ‘human rights’ in Section 2(d) of the Protection of Human Rights Act,
1993, taking note of the fact that the present civil and penal laws in India do not
adequately provide for specific protection of women from sexual harassment in
work places and that enactment of such legislation will take considerable time, It is
necessary and expedient for employers in work places as well as other responsible
persons or institutions to observe certain guidelines to ensure the prevention of
sexual harassment of women:
1. Duty of the Employer or other responsible persons in work places and other
institutions:
It shall be the duty of the employer or other responsible persons in work places
or other institutions to prevent or deter the commission of acts of sexual harassment
and to provide the procedures for the resolution, settlement or prosecution of acts
of sexual harassment by taking all steps required.
2. Definition:
For this purpose, sexual harassment includes such unwelcome sexually
determined behavior (whether directly or by implication) as: (a) physical contact
and advances; b) a demand or request for sexual favors; c) sexually colored remarks;
d) showing pornography; e) any other unwelcome physical, verbal or non-verbal
conduct of sexual nature. Where any of these acts is committed in circumstances
where under the victim of such conduct has a reasonable apprehension that in relation
to the victim’s employment or work whether she is drawing salary, or honorarium
or voluntary, whether in government, public or private enterprise such conduct can
be humiliating any may constitute a health and safety problem. It is discriminatory
for instance when the woman has reasonable grounds to believe that her objection
would disadvantage he in connection with her employment or work including
recruiting or promotion or when it creates a hostile work environment. Adverse
consequences might be visited if the victim does not consent to the conduct in question
or raises any objection thereto.

22
K. D. Gaur, The Indian Penal Code, Universal Law Publishing Co., New Delhi, 2010,
pp. 560-561.
23
Retrieved from<http://wcdhry.gov.in/Womenharrassment_F.html> visited on 6 February,
2011.
177
KIIT Journal of Law and Society (Volume -5: No-1)

3. Preventive Steps:
All employers or persons in charge of work place whether in the public or
private sector should take appropriate steps to prevent sexual harassment. Without
prejudice to the generality of this obligation they should take the following steps: a)
Express prohibition of sexual harassment as defined above at the work place should
be notified, published and circulated in appropriate ways. b) The Rules/Regulations
of Government and Public Sector bodies relating to conduct and discipline should
include rules / regulations prohibiting sexual harassment and provide for appropriate
penalties in such rules against the offender. c) As regard private employers steps
should be taken to include the aforesaid prohibitions in the standing orders under
the Industrial Employment (Standing Orders) Act, 1946. d) Appropriate work
conditions should be provided in respect of work, leisure, health and hygiene to
further ensure that there is no hostile environment towards women at work places
and no employee woman should have reasonable grounds o believe that she is
disadvantaged in connection with her employment.
4. Criminal Proceedings:
Where such conduct amounts to a specific offence under the Indian Penal Code
or under any other law, the employer shall initiate appropriate action in accordance
with law by making a complaint with the appropriate authority. In particular, it
should ensure that victims, or witnesses are not victimized or discriminated against
while dealing with complaints of sexual harassment. The victims of sexual
harassment should have the option to seek transfer of the perpetrator or their own
transfer.
5. Disciplinary Action:
Where such conduct amounts to misconduct in employment as defined by the
relevant service rules, appropriate disciplinary action should be initiated by the
employer in accordance with those rules.
6. Complaint Mechanism:
Whether or not such conduct constitutes an offence under law or a breach of
the service rules, an appropriate complaint mechanism should be created in the
employer’s organization for redress of the complaint made by the victim. Such
complaint mechanism should ensure time bound treatment of complaints. Complaints
Committee should be adequate to provide, where necessary, a Complaints Committee,
a special counselor or other support service, including the maintenance of
confidentiality. The Complaints Committee should be headed by a woman and not
less than half of its member should be women. Further, to prevent the possibility of
any undue pressure or influence from senior levels, such Complaints Committee

178
How Far Women are Empowered at Work Places ...

should involve a third party, either NGO or other body who is familiar with the
issue of sexual harassment. The Complaints Committee must make an annual report
to the Government department concerned of the complaints and action taken by
them. The employers and person in charge will also report on the compliance with
the aforesaid guidelines including on the reports of the Complaints Committee to
the Government department.
7. Workers’ Initiative:
Employers should be allowed to raise issues of sexual harassment at workers’
meeting and in other appropriate forum and it should be affirmatively discussed in
Employer-Employee Meetings.
8. Awareness:
Awareness of the rights of female employees in this regard should be created in
particular by prominently notifying the guidelines (and appropriate legislation when
enacted on the subject) in a suitable manner.
9. Third Party Harassment:
Where sexual harassment occurs as a result of an act or omission by any third
party or outsider, the employer and person in charge will take all steps necessary
and reasonable to assist the affected person in terms of support and preventive
action.
The Central/State Governments are requested to consider adopting suitable
measures including legislation to ensure that the guidelines laid down by this order
are also observed by the employers in Private Sector. These guidelines will not
prejudice any rights available under the Protection of Human Rights Act, 1993.
Accordingly, the Supreme Court directed that the above guidelines and norms would
be strictly observed in all work places for the preservation and enforcement of the
right to gender equality of the working women. These directions would be binding
and enforceable in law until suitable legislation is enacted to occupy the field. These
Writ Petitions are disposed of, accordingly.24
The Sexual Harassment of Women At Work Place (Prevention, Prohibition
and Redressal) ACT, 2013
There is no doubt that we are in the midst of a great revolution in the history of
women. The evidence is everywhere; the voice of women is increasingly heard in
Parliament, courts and in the streets. While women in the West had to fight for over
a century to get some of their basic rights, like the right to vote, the Constitution of

24
Guidelines lay down by the Supreme Court in the case of Vishakha versus State of
Rajasthan.
179
KIIT Journal of Law and Society (Volume -5: No-1)

India gave women equal rights with men from the beginning. Unfortunately, women
in this country are mostly unaware of their rights because of illiteracy and the
oppressive tradition.25 The ‘’Protection of Women against Sexual Harassment at
Workplace Bill, 2010'’ seeks to provide for the prevention and redressal of complaints
of sexual harassment and for matters connected therewith. The rationale behind
this Bill is that sexual harassment results in violation of the fundamental rights of a
woman like right to equality under Articles 14 and 15 of the Constitution of India
and her right to life and to live with dignity under Article 21 of the Constitution and
right to practice any profession or to carry on any occupation, trade or business
which includes a right to a safe environment. Thus sexual harassment at a workplace
is considered violation of women’s right to equality, life and liberty. The protection
against sexual harassment and the right to work with dignity are universally
recognized as human rights by international conventions and instruments as well.
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and
Redressal) Act, 2013 is a legislative act in India that seeks to protect women from
sexual harassment at their place of work. It was passed by the Lok Sabha (the
lower house of the Indian Parliament) on 3 September 2012. It was passed by the
Rajya Sabha (the upper house of the Indian Parliament) on 26 February 2013. The
Bill got the assent of the President on 23 April 2013. The Act came into force from
9 December 2013. This statute superseded the Vishakha Guidelines for prevention
of sexual harassment introduced by the Supreme Court of India. Some of the features
of this law are as follows:
1. The Act defines sexual harassment at the work place and creates a mechanism
for redressal of complaints by victims. The definition of “aggrieved woman” is
extremely wide to cover all women, irrespective of her age or employment
status, whether in the organized or unorganized sectors, public or private and
covers clients, customers and domestic workers as well.
2. While the “workplace” in the Vishakha Guidelines is confined to the traditional
office set-up where there is a clear employer-employee relationship, the Act
goes much further to include organisations, department, office, branch unit
etc. in the public and private sector, organized and unorganized, hospitals,
nursing homes, educational institutions, sports institutes, stadiums, sports
complex and any place visited by the employee during the course of employment
including the transportation.
3. The Committee is required to complete the inquiry within a time period of 90
days. On completion of the inquiry, the report will be sent to the employer or

25
Retrieved from <http://www.merinews.com/article/women-empowerment-in-india/
15790444.shtml>, visited on 11 February 2014.
180
How Far Women are Empowered at Work Places ...

the District Officer, as the case may be, they are mandated to take action on the
report within 60 days. Every employer is required to constitute an Internal
Complaints Committee at each office or branch with 10 or more employees.
The District Officer is required to constitute a Local Complaints Committee at
each district, and if required at the block level.
4. The Complaints Committees have the powers of civil courts for gathering
evidence. The Complaints Committees are required to provide for conciliation
before initiating an inquiry, if requested by the complainant. It also provides
safeguards against false or malicious charges.
5. Non-compliance with the provisions of the Act shall be punishable with a fine
of up to INR 50,000. Repeated violations may lead to higher penalties and
cancellation of license or registration to conduct business.
After adoption of this legislation, it is observed by International Labour
Organization that most Indian employer’s have not implemented the law despite the
legal requirement that any workplace with more than 10 employees need to implement
it. The government has threatened to take stern action against employers who fail to
comply with this law. A year after the law was notified, the number of harassment
cases have gone up. This Act has made it mandatory for all offices with 10 or more
employees to have an internal complaints committee to address grievances in a
stipulated time or face penalty. Such cases must be disposed of by in house complaint
mechanism within 90 days failing which a penalty will be imposed. Repeated non-
compliance of the provisions can even lead to cancellation of license or registration
of the organization. Over 90% of Indian businesses are unable to comply with the
new law.26
Conclusion
In the 21st Century, women are leader in all the spheres of life. More and more
women find themselves in positions of respect and prestige; more and more
workplaces are now populated with women who work on equal terms as men.
Working is no longer an adjustment, a mere necessity; but a means to self worth
and growth. After a long gap from 1992 -2013 the Indian Parliament has taken an
initiative for the protection of women. By just eating the vitamin pills one does not
become the Body Builder and healthy person. Empowerment of any section of a
society is a myth until they are properly implemented. Empowerment refers to
increasing the spiritual, political, social or economic strength of individuals and
communities. Empowerment does not happen automatically it needs the equal
platform and opportunity. The first opportunity has been given to women with

26
The Economic Times, New Delhi, Friday, 28 November, 2014, p. 8.

181
KIIT Journal of Law and Society (Volume -5: No-1)

economic freedom. After giving this opportunity woman are subjected to sexual
exploitation at workplaces. They cannot lodge complaint. It is not feasible at all for
a woman to compliant against her boss or senior officer. If she dares to do so, she
blocks her entire future. Practically, she gets humiliation and inferiority from all
around her. This article has highlighted that a year after the law was notified, the
number of harassment cases have gone up. This Act has made it mandatory for all
offices with 10 or more employees to have an internal complaints committee to
address grievances in a stipulated time or face penalty. Such cases must be disposed
of by in house complaint mechanism within 90 days failing which a penalty will be
imposed. Repeated non-compliance of the provisions can even lead to cancellation
of license or registration of the organization. Over 90% of Indian businesses are
unable to comply with the new law27. It is submitted by the researcher that Indian
Incorporations takes baby steps on women’s safety at work place. Empowerment
does not happen automatically it needs the opportunity. Most crimes against women
go unreported. The Indian Parliament has enacted this legislation, however, the
teeth to this legislation has not been given. Mandatory provisions have not been
followed even after one year of the birth of Indian Law on Sexual harassment. The
condition of women in India cannot be improved by any single method or merely by
pronouncing the word ‘Women Empowerment’. There is need for strictly application
of these provisions by enforcement agencies.

27
Id..
182
PUTTING THE VICTIM’S FAMILIES FIRST: THE
COMPARATIVE ANALYSIS OF THE INTER-
AMERICAN COURT OF HUMAN RIGHTS AND THE
EUROPEAN COURT OF HUMAN RIGHTS ON THE
RIGHT TO BE FREE FROM TORTURE IN CASES OF
ENFORCED DISAPPEARANCES
Ashley Needham*

Abstract
This article aims to assess the American Convention on Human Rights in
relation to the European Convention on Human rights on the topic of decisions
made in cases of enforced disappearances. Case law, peer-reviewed articles, books,
and legislation were used in the course of the article. The argument in this article
is that the Inter-American Court of Human Rights is more responsive to the
vulnerability of the applicant to the Court in cases of enforced disappearances
than the European Court of Human Rights. This is because the Inter-American
Court uses a lesser standard of proof than beyond a reasonable doubt when
assessing violations of the right to be free from torture. Meanwhile, the European
Court uses the standard of beyond a reasonable doubt only when dealing with
allegations of violations of Article 3 of the ECHR, which is the prohibition of
torture. However, this is inappropriate given that the role of international human
rights law is not to be punitive, for that is the role of a criminal court, but rather
to give reparation and redress to the victims and families of victims of human
rights violations. The article finds that the Inter-American Court is more progressive
than the European Court when addressing the rights of victims in cases of enforced
disappearances due to its extensive experience, its lack of a rigid standard of
proof, and its opinion on the responsibility of burden of proof.
Introduction
The aim of this article is to critically assess the role of the American Convention
on Human Rights (ACHR), in comparison to the European Convention on Human
Rights (ECHR) on the topic of the development of human rights law and protecting
rights of victims. This article will make its argument through the analysis of case
law, journal articles, and books. The article will argue that because the Inter-

* LLM Criminal Justice and Human Rights Law Queen’s University Belfast, 78 Malone
Road, Queen’s Accommodation, Belfast, Northern Ireland BT9 5BW
Phone: +44 7435280675, Email: aneedham@qub.ac.uk
183
KIIT Journal of Law and Society (Volume -5: No-1)

American Court of Human Rights (IACtHR) relies on a lesser standard of proof in


comparison to the standard of proof of that of the European Court of Human Rights
(ECtHR), in relation to alleged violations of Article 3 of the ECHR, the ACtHR is
able to better support and protect the families of victims of enforced disappearances.
The IACtHR’s reasoning for using a lesser standard of proof is because cases of
alleged enforced disappearances often lack direct evidence that the alleged violation
occurred. This is due to the presumption that state would have the resources to
destroy all evidence that a crime occurred. The article will recommend the ECtHR
refer the ACtHR case of Velásquez Rodríguez v. Honduras to allow for a more
flexible standard of proof. This will better resolve cases of enforced disappearances
by ruling in favour of applicants in that an enforced disappearance is a violation of
the right to be free from torture. The final argument of the article is that the standard
of beyond a reasonable doubt is inappropriate in international human rights
proceedings and a lesser standard of proof will promote better treatment of victims
and the families of victims.
Admissibility of Evidence
1. The Inter-American Court of Human Rights
The difficulty that human rights courts have with handling cases of
disappearances lies with the availability of evidence.1 In cases of alleged enforced
disappearances by a state, it can be assumed that the government has taken detailed
steps to erase any evidence of a crime. Therefore, in these cases there is a substantial
lack of physical evidence that a crime even occurred. In an effort to account for
this, the IACtHR uses a lesser standard for the admission of evidence in cases of
alleged enforced disappearances, which allows the Court to make reasonable
presumptions2 in lieu of direct evidence. Given that direct evidence of alleged enforced
disappearances by a state is unavailable, international courts, such as the IACtHR
and the ECtHR, have had to decide what degree of flexibility the court wants to
allow for the admissibility of evidence.
In order to account for the lack of direct evidence, the IACtHR allows for a
wider range of evidence to be admitted. For instance, Article 47 of the Rules of
Procedure of the IACtHR states that the Court is allowed to ‘obtain, on its own
motion, any evidence it considers helpful and necessary’.3 In other words, the IACtHR

1
Ophelia Claude, ‘A comparative Approach to Enforced Disappearances in the Inter-
American Court of Human Rights
and the European Court of Human Rights Jurisprudence’ [2010] Intercultural Human
Rights Law Review 407, 410.
2
ibid, 423.
3
Rules of Procedure of the Inter-American Court of Human Rights, Article 47 ‘Procedure
for Taking Evidence’ (1).
184
Putting the Victim’s Families First: The Comparative Analysis ...

has free range to admit evidence that the Court deems necessary. Article 47 continues
on to state that it may allow the IACtHR to hear any person whose testimony is
deemed relevant to the case.4
The greater latitude of the IACtHR allows for circumstantial and presumptive
evidence to be admitted to the Court. In the case of Velásquez Rodríguez v. Honduras,
the Court stated the importance of the admission of circumstantial and presumptive
evidence in cases of alleged disappearances given the notion much of the information
about the whereabouts of the victim has been suppressed.5 Understanding that much
of the direct or physical evidence of the whereabouts of an alleged disappearance
victim would be suppressed by the state in question, the IACtHR recognizes that
circumstantial evidence may be all the evidence available:
Circumstantial or presumptive evidence is especially important in allegations
of disappearances, because this type of repression is characterized by an attempt to
suppress all information about the kidnapping or the whereabouts and fate of the
victim.6
An example of the Court allowing the admission of circumstantial evidence is
present in the case of Velásquez Rodríguez v. Honduras. The IACtHR allowed the
admission of newspaper press clippings into evidence.7 Although the IACtHR could
not consider the press clippings as documentary evidence by the standard of the
Commission, the Court was able to use the press clippings to reproduce public
statements and to corroborate testimony that implicated the Honduran military and
police as responsible for the disappearances.8 In sum, the circumstantial evidence
became a key piece of evidence to support the applicant’s argument that the Honduran
government was responsible for the disappearances.
2. The European Court of Human Rights
The European Court (ECtHR) rules of admission of evidence are similar to
that of the Inter-American Court.9 It has already been established that the IACtHR
uses indirect and circumstantial evidence when dealing with cases of enforced
disappearances.10 Similarly to the IACtHR, the ECtHR is allowed to rely on evidence
on any kind, given that it is relevant to the case at hand.11 For example, in the case

4
ibid, (1).
5
Velásquez Rodríguez v. Honduras [1988] 4 C 1 (Inter-Am. Ct. H.R.) ¶131.
6
ibid, ¶131.
7
ibid, ¶146.
8
ibid, ¶146.
9
Claude [n 1] 412.
10
Ugur Erdal, ‘Burden and standard of proof in proceeding under the European
Convention’ [2001] Eur. L. Rev. 1, 4.
11
ibid, 4.
185
KIIT Journal of Law and Society (Volume -5: No-1)

of Ireland v. United Kingdom, the ECtHR acknowledged that, much like the ACtHR,
the ECtHR is not bound under the Convention, or under the principles applicable to
international tribunals, to any strict rules of evidence.12 Therefore, the Court has
the liberty to look at essentially any evidence of any kind as long as it is deemed
relevant to the case:
In order to satisfy itself, the Court is entitled to rely on evidence of every kind,
including, insofar as it deems them relevant, documents or statements emanating
from governments, be they respondent or applicant, or from their institutions or
officials.13
Correspondingly, the European Convention organs have adopted the system
known as the ‘free evaluation of evidence’, 14 in which ‘all relevant evidence is
admissible and no person is incompetent as a witness’. 15 That is to say, testimony,
opinion, or declaration from anyone reasonably involved and relevant to the case
can be a part of the evidence in order to give the Court a full idea of what occurred.
Likewise to the ACtHR, the reason for this flexible approach is due to the difficulties
obtaining evidence to prove a violation occurred.16 The U.N. General Assembly in
1977 acknowledged the difficulty of obtaining evidence to prove a violation of
Article 3 of the ECHR, which is the prohibition of torture:
[…] evidence was difficult to obtain since in the twentieth century people were
not usually tortured in public, torturers did not wear any identification, and the
police would not admit breaking the law if complaints could not be entertained
owing to a state of emergency.17
In other words, direct evidence that would satisfy the standard of ‘beyond a
reasonable doubt’ can be inaccessible in cases of alleged human rights violations
such as, in this case, torture. This is because the individuals that are committing the
violation, such as police and government officials, are in a position of power in
which they can eliminate all evidence of the violation. The U.N. General Assembly
understood the difficulty of obtaining evidence for a violation and with that the
European Convention bodies realized that, in order to address these violations, the
Convention needed to have more liberal standards for the admission of evidence.

12
Ireland v. United Kingdom [1978] 5310/7 (Eur. Ct. H. R.) ¶209.
13
ibid, ¶209.
14
Erdal [n 15] 4.
15
ibid, 4.
16
ibid, 4.
17
B. G. Ramcharan, ‘Evidence’ in B.G. Ramcharan (eds), International Law and Fact-
Finding in the Field of Human Rights (1st, Martinus Nijhoff Publishers, The Hague 1982)
1, 68.
186
Putting the Victim’s Families First: The Comparative Analysis ...

That being said, the ECtHR has relied less on indirect evidence than the IACtHR
when addressing certain human rights violations.18 In particular, the European Court
routinely rejects allegations involving torture or inhumane treatment without direct
evidence19 and the ECtHR does not necessarily find that enforced disappearances
are a violation of Article 3,20 which prohibits torture, as well as inhuman or degrading
treatment or torture.21 This is different than the ECtHR’s decisions regarding Article
1 of the ECtHR, the right to life.
An example of the ECtHR’s reluctance to find enforced disappearances as a
violation of Article 3 is present in the case of Kurt v. Turkey. In this case of an
alleged enforced disappearance at the responsibility of state, the ECtHR stated that
the applicant had not provided the Court with any direct evidence that her son was
a victim of an Article 3 violation, and therefore the ECtHR subsequently rejected
the applicant’s argument on that particular article in question. The ECtHR stated,
“In particular, the applicant has not presented any specific evidence that her son
was indeed the victim of ill-treatment in breach of Article 3.” 22 While the ECtHR
did not rule in favour of the violation of Article 3 due to the lack of direct evidence,
it did however rule in favour of the applicant on several violations, including a
violation of the applicant’s own Article 3 right to the prohibition of torture. 23
This decision of the ECtHR seems contradictory. For on the one hand, the
ECtHR allows for wider range of evidence to be admitted due to an acknowledgment
that direct evidence could have been erased by the State but then, on the other hand,
the ECtHR still relies on strict standards of proof to which circumstantial evidence
does not satisfy the standard. Therein lies the difference between admissibility of
evidence and standard of proof. For instance, in Kurt v. Turkey, Judge Gölcüklü of
the ECtHR did not affirm that the disappearance of the applicant’s son was a case
of enforced disappearance on behalf of the state. Instead Judge Gölcüklü voted in
favour of finding no violation because the facts were not proved beyond a reasonable
doubt.24 Thereby, although the ECtHR may admit any evidence of any kind as long
as it is relevant to the case, this does not mean that it takes the same approach as the
IACtHR on determining if the evidence supports a violation. This then leads us
away from the admissibility of evidence and towards the standards of proof in the
Inter-American Court and European Court of Human Rights.

18
Claude [n 1] 413.
19
Claude [n 1] 413.
20
Kurt v. Turkey [1998] 15/1997/799/1002 (Eur. Ct. H.R.) ¶ 116.
21
Convention for the Protection of Human Rights and Fundamental Freedoms [1950]
ECHR Art. 3.
22
Kurt v. Turkey [n 20] ¶116.
23
ibid, “For these Reasons, the Court.”
24
ibid, “Dissenting opinion of Judge Gölcüklü.”
187
KIIT Journal of Law and Society (Volume -5: No-1)

Standard of Proof
1. The Inter-American Court of Human Rights
Likewise to its procedure on admissibility of evidence, the IACtHR also
maintains a more flexible standard of proof when compared to criminal or domestic
courts. 25 For instance, the IACtHR maintains no statutory authority in establishing
a standard of proof required for cases to be heard before the court.26 In the case of
Velásquez Rodríguez v. Honduras, the IACtHR established that neither the
Convention, the Statute of the Court nor the Rules of Procedure provide a definitive
answer to the standard of proof necessary in cases of enforced disappearances. 27
Moreover, international jurisprudence has avoided giving a rule regarding the amount
of proof necessary to a support a judgment. With this the Court has free range to
weigh the evidence:
The Court must determine what the standards of proof should be in the instant
case. Neither the Convention, the Statute of the Court nor its Rules of Procedure
speak to this matter. Nevertheless, international jurisprudence has recognized the
power of the courts to weigh the evidence freely, although it has always avoided a
rigid rule regarding the amount of proof necessary to support the judgment.28
In other words, the standard of proof required by the IACtHR is flexible and is
determined on a case-by-case basis, which is extremely important in dealing with
cases that deal with little or no direct evidence, such as cases of enforced
disappearances. Embedded in the Court’s ability to weigh the evidence freely as to
what constitutes enough proof to support a judgment, the IACtHR has the flexibility
to alter the standard of proof required depending on the violation in question.29 In
sum, the IACtHR is not bound by any judicial standard of proof but rather the
standard of proof is up to the discretion of the Court.
The IACtHR argues that it uses a lesser standard of proof due to the seriousness
of enforced disappearances. For instance, in the Honduras cases of enforced
disappearances the IACtHR recognized the seriousness of finding that a State had
participated in enforced disappearances and argued that the standard of proof must
reflect that seriousness:30

25
Velásquez Rodríguez v. Honduras [n 5] ¶128.
26
Jo M. Pasqualucci, The Practice and Procedure of the Inter-American Courts of Human
Rights (1st, Cambridge University Press, Cambridge 2003) 1, 213.
27
Velásquez Rodríguez v. Honduras [n 5] ¶127
28
ibid, ¶127.
29
Pasqualucci [n 26] 213.
30
Velásquez Rodríguez v. Honduras [n 5] ¶129.

188
Putting the Victim’s Families First: The Comparative Analysis ...

The Court cannot ignore the special seriousness of finding that a State Party to
the Convention has carried out or has tolerated a practice of disappearances in its
territory. This requires the Court to apply a standard of proof, which considers the
seriousness of the charge…31
The IACtHR serves in favour of the victims and the victims’ families by giving
them an easier opportunity to present convincing, but not direct, evidence that their
loved one was disappeared by the state and that this disappearance constitutes a
violation of Article 3. The standard of proof that the IACtHR uses is much weaker
than that of the ECtHR, in that, as demonstrated with Judge Gölcüklü in Kurt v.
Turkey, the ECtHR refers to the standard of ‘beyond a reasonable doubt’ when
assessing ECHR Article 3 violations in relation to cases of alleged enforced
disappearances.32
In Velásquez Rodríguez v. Honduras, the IACtHR explained that the difference
of the standard of proof between the IACtHR and that of criminal courts is based
on the intrinsic difference between human rights and criminal justice.33 In the case
of international protection of human rights, States do not appear before the Courts
as defendants of a criminal action.34 Moreover, the objective of the Court is not to
punish individuals who are found guilty of violations but rather to protect victims
of violations and provide reparation for the violations caused by the State.35 To put
it another way, the IACtHR is not seeking to punish members of the Government
behind the disappearances. That is the responsibility of a criminal court. The IACtHR
is seeking the truth in order to protect the families of the victims of the enforced
disappearances and to provide reparations and redress to the families.
Therefore, instead of a standard of beyond a reasonable doubt, that a criminal
court would use, the IACtHR has adopted a standard of ‘reasoned judgment’. 36
This when the Judges are allowed to come to a conclusion based on a logical analysis
of the evidence presented.37 In the case of Castillo-Paéz v. Peru the IACtHR
explained its ability to use reasoned judgment:
Given that fact, this Court has always been flexible with the standard of proof
it applies for receiving evidence. International jurisprudence has recognized the
power of the courts to weigh the evidence freely, but has consistently avoided a
rigid rule regarding the amount of proof necessary to support a judgment.38

31
ibid, ¶129.
32
Claude [n 1] 424.
33
ibid, 423.
34
Velásquez Rodríguez v. Honduras [n 5] ¶134.
35
ibid, ¶134.
36
Claude [n 1] 423.
37
ibid, 423.
38
Castillo-Páez v. Peru [1998] 63 C 1 (Inter-Am. Ct. H.R.) ¶38.
189
KIIT Journal of Law and Society (Volume -5: No-1)

As already established in the case of Velásquez Rodríguez v. Honduras, the


IACtHR has the power to weigh the evidence freely using its judgment. The IACtHR
also maintains its flexibility of the standard of proof and has avoided instituting a
rigid rule regarding the amount of proof needed. This is because the IACtHR
recognizes that not all allegations of violations will have access to the evidence
needed to support a judgment at the criminal court standard of beyond a reasonable
doubt. Therefore, in order to give the families of victims the opportunity to make a
case, the standard of proof needs to fit the seriousness of the human rights violation.
2. The European Court of Human Rights
According to the European Convention on Human Rights, the European
Commission has consistently maintained the standard of proof of beyond a reasonable
doubt when analysing cases of alleged violations of Article 3 of the ECHR.39
Therefore, in terms of cases concerning enforced disappearances, the ECtHR is
reluctant to find that enforced disappearances constitute Article 3 violations without
direct evidence that can satisfy the standard of proof. The high standard of beyond
a reasonable doubt was first established in the 1968 Greek case.40 It was with this
case that the Commission determined that it must maintain a certain standard of
proof when dealing with cases of allegations of torture or ill treatment,41 ‘It must,
therefore, maintain a certain standard of proof, which is that in each case the
allegations of torture or ill-treatment, as breaches of Article 3 of the Convention,
must be proved beyond a reasonable doubt.’42 Therefore, as stated in the previous
section, in cases of alleged enforced disappearances, the ECtHR does not usually
find that they constitute violations of Article 3 of the European Convention on
Human Rights given that the ECtHR employs the standard of proof beyond a
reasonable doubt.
Comparatively, the IACtHR considers enforced disappearances a violation of
Article 5 of the ACHR, which is the right to be free from torture or cruel, inhuman,
or degrading treatment, in cases of enforced disappearances using circumstantial
or indirect evidence or through logical inference. 43 This is because it can be
reasonably assumed that enforced disappearances involve the isolation of a person
to be held in an unknown place without communication to their friends and family

39
Uður Erdal, Hasan Bakîrcý, Article 3 of the European Convention on Human Rights:
A Practitioner’s Handbook (1st, World Organization Against Torture (OMCT), Geneva
2006) 4, 256.
40
ibid, 256.
41
Yearbook of the European Convention of Human Rights, The Greek Case, 1969
(Martinus Nijhoff Publishers, The Hague, Netherlands 1972) 1, 196 ¶30.
42
ibid, 196 ¶30.
43
American Convention on Human Rights “Pact of San Jose, Costa Rice” (B-32) Art. 5.
190
Putting the Victim’s Families First: The Comparative Analysis ...

and fearful for their fate.44 Meanwhile, according to the procedure of European
Commission on alleged Article 3 violations, the ECtHR will only declare the existence
of Article 3 violations if there is direct evidence.45
In light of this, the ECtHR may not seem as sympathetic to the families of
victims because it uses a very high standard of proof that may be unattainable in
cases of alleged enforced disappearances.46 In other words, the ECtHR is not
understanding of a victim’s alleged suffering unless there is direct evidence to
substantiate it or as María Fernanda Pérez Solla puts it, ‘The focus of the ECtHR
on the state attitude is hardly acceptable, as it denies the pain that a disappearance
causes’.47 Therefore, by using the standard of beyond a reasonable doubt for
allegations of violations of Article 3 the ECtHR is inadvertently giving the
perpetrators of the torture, such as the Government, the opportunity to destroy
direct evidence and the ability to shield itself from liability from the ECHR.48
Furthermore, the standard of beyond a reasonable doubt was used in the case
of Ireland v. United Kingdom, in that the judges refer to the Greek case for reliance
on the Commission’s standard of proof. The ECtHR adopted the standard of beyond
a reasonable doubt when evaluating the evidence of the Ireland v. United Kingdom
case.49 However, despite its frequent use, there has not been a substantial amount
written on how to interpret or apply the standard of beyond a reasonable doubt.50
The Commission has defined it as, ‘A reasonable doubt means not a doubt based on
a merely theoretical possibility or raised in order to avoid a disagreeable conclusion,
but a doubt for which reasons can be given drawn from the facts presented’. 51 This
allows room for interpretation of the standard but also leads to uncertainty of how
to apply the standard consistently.
This apparent rigidity of the standard has led to judges questioning its use in
human rights cases given that the standard of proof beyond a reasonable doubt is
typically used in criminal cases. In the case of Labita v. Italy, eight of the seventeen
judges on the case wrote a dissenting opinion that criticized the use of the beyond a
reasonable doubt standard:

44
María Fernanda Pérez Solla, Enforced Disappearances in International Human Rights
(1st, McFarland & Company, North Carolina 2006) 1, 84.
45
ibid, 84.
46
ibid, 84.
47
ibid, 84.
48
Gobind Singh Sethi, ‘The European Court of Human Rights’ Jurisprudence on Issues
of Forced Disappearances’ [2001] WCL 29, 31.
49
Ireland v. United Kingdom ¶161.
50
Ugur Erdal, ‘Burden and standard of proof in proceeding under the European
Convention’ [2001] Eur. L. Rev. at HR/74.
51
Yearbook of the European Convention of Human Rights [n 41] 196 ¶30.
191
KIIT Journal of Law and Society (Volume -5: No-1)

We are accordingly of the view that the standard used for assessing the evidence
in this case is inadequate, possibly illogical and even unworkable since, in the absence
of an effective investigation, the applicant was prevented from obtaining evidence
and the authorities even failed to identify the warders allegedly responsible for the
ill-treatment complained of.52
This is acknowledging that this standard is not workable for human rights
cases given that the State in question withholds information from the Court. The
dissenting opinion then went on to note that the ECtHR should not follow a standard
akin to a criminal court because its motives and goals are different:
Lastly, it should be borne in mind that the standard of proof “beyond all
reasonable doubt” is, in certain legal systems, used in criminal cases. However, this
Court is not called upon to judge an individual’s guilt or innocence or to punish
those responsible for a violation; its task is to protect victims and provide redress
for damage caused by the acts of the State responsible.53
This argument is clearly comparable to that of the IACtHR in the Velásquez
Rodríguez v. Honduras case.54 Based on the dissenting opinion in the case Labita v.
Italy, it would seem that judges are becoming more inclined to move away from the
beyond all reasonable doubt standard and change to something more workable like
that of the Inter-American Court of Human Rights.55
Burden of Proof
1. The Inter-American Court of Human Rights
To further support the rights of victims, the IACtHR has demonstrated
willingness and inclination to place the responsibility of the burden of proof on to
the State. This is because the Court is acting under the assumption that in alleged
cases of enforced disappearances the State will either have access to the evidence or
will have destroyed the evidence.56 For example, in the case of Velásquez-Rodríguez
v. Honduras, the Court ruled that in proceedings to determine human rights violations
the State could not rely on the defence that the complainant failed to present evidence
given that the evidence would have to be obtained with the State’s cooperation:
In contrast to domestic criminal law, in proceedings to determine human rights
violations the State cannot rely on the defense that the complainant has failed to

52
Labita v. Italy [2000] 26772/95 (Eur. Ct. H.R.) (Judges Pastor Ridruejo, Bonello,
Makarczyk, Tulkens, Strážnická, Butkevych, Casadevall and Zupanèiè, dissenting).
53
ibid, (Judges Pastor Ridruejo, Bonello, Makarczyk, Tulkens, Strážnická, Butkevych,
Casadevall and Zupanèiè, dissenting).
54
Velásquez Rodríguez v. Honduras [n 5] ¶134.
55
Claude [n 1] 425.
56
ibid, 416.
192
Putting the Victim’s Families First: The Comparative Analysis ...

present evidence when it cannot be obtained without the State’s cooperation. 57


Moreover, the Court has been critical of the role of the State of Honduras
throughout the fact-finding portion of the investigation into disappearances saying
in the case of Godínez Cruz v. Honduras that the state has the means to verify
evidence. While the Commission has investigatory powers, they are unable to exercise
them without the cooperation of the State in question, ‘The State controls the means
to verify acts occurring within its territory. Although the Commission has
investigatory powers, it cannot exercise them within a State’s jurisdiction unless it
has the cooperation of that State’.58 In sum, the IACtHR has been critical of the
lack of cooperation of states when dealing with cases of alleged enforced
disappearances and while the Court is not explicit with shifting the burden of proof
onto the State, it does recognize that the State has control over the evidence, which
would therefore allude that the State bears the burden of proof.59
2. The European Court of Human Rights
Similarly to the IACtHR, the ECtHR has been critical of the role of states
during cases of alleged enforced disappearances. The ECtHR has taken on the
opinion that the State, in question, during an investigation of an alleged enforced
disappearance, needs to provide explanation when a person is taken into state custody
prior to their disappearance.60 Furthermore, if the state fails to provide a reasonable
explanation for the disappearance than the individual is to be presumed dead. 61
This reasoning was first established in the case of Akkum and others v. Turkey, in
which the Court argued that if the State fails to cooperate with the Court in order to
establish the facts of the case, the Government must provide a conclusive explanation
of why Government documents cannot corroborate the allegations, or the Government
must provide a satisfactory and convincing explanation of how the events occurred.62
Moreover, if the state fails to provide the Court this information, then the state is in
violation of Article 2 and/or 3 of the Convention.63
Similarly, with this reasoning, the ECtHR indicated in the case of Togcu v.
Turkey that the burden of proof is shifted onto the government when an applicant
has already made out a prima facie case.64 These two cases of Akkum and others v.

57
Velásquez-Rodríguez v. Honduras ¶135.
58
Godínez Cruz v. Honduras [1989] 5 C 1 (Inter-Am. Ct. H.R.) ¶142.
59
Jo M. Pasqualucci, The Practice and Procedure of the Inter-American Courts of Human
Rights (1st, Cambridge University Press, Cambridge 2003) 210.
60
Claude [n 1] 418.
61
ibid, 418.
62
Akkum and Others v. Turkey [2005] 21894/93 (Eur. Ct. H.R.) ¶211.
63
ibid, ¶211.
64
Togcu v. Turkey [2005] 27601/95 (Eur. Ct. H.R.) ¶95.
193
KIIT Journal of Law and Society (Volume -5: No-1)

Turkey and Togcu v. Turkey demonstrate the willingness of the ECtHR to shift the
burden of proof on to the State given the circumstances of the case. In order to the
burden of proof onto the state the applicant needs to demonstrate a prima facie
case, meaning evidence that is sufficient to establish a fact unless disproved. This
demonstrates that the burden of proof of the ECtHR is more in line with the IACtHR
than the standard of proof. Thus, the ECtHR is demonstrating its responsiveness
with dealing with the serious nature of enforced disappearances.
Experience with cases of Enforced Disappearances
1. The Inter-American Court v. The European Court
Comparatively, the IACtHR has significantly more experience in dealing with
cases of enforced disappearances than the ECtHR.65 This is because the ECtHR
has traditionally been called upon to assess civil and political rights in Western
Europe.66 At present, the IACtHR has over 25 years of experience with cases of
enforced disappearance whereas the ECtHR has far fewer, having only recently
began addressing the issue with the increasing allegations of forced disappearances
in Turkey in the early 2000s. 67 Due to its lack of experience, the ECtHR’s
jurisprudence is not as responsive to the nature of enforced disappearances as that
of the IACHR, with regard to the violation of the right to be free from torture,
degrading, or inhumane treatment.68 However, the ECtHR is more aligned with the
seriousness nature of enforced disappearances and perhaps more progressive than
the IACtHR with regard to the issue of shifting the burden of proof on to the State
in question.
Conclusion
1. The ACHR is More Developed than ECHR
In light of all this, at this present time the jurisprudence of the ECHR on the
issue of enforced disappearances is not as well developed as the ACHR. Thus use
of the standard of beyond a reasonable doubt in alleged violations of Article 3 of the
ECHR puts the evidentiary burden on the applicant despite the fact that the State
would have access to the necessary information on whether or not an Article 3
violation occurred. This burden is inappropriate and follows too closely to the
standard used in criminal justice proceedings even though international human rights
protections are more akin to civil proceedings. As stated by the IACtHR in Velásquez-
Rodríguez v. Honduras, ‘States do not appear before the Court as defendants in a
65
Sethi [n 48] 29.
66
Joseph Barrett, ‘Chechnya’s Last Hope – Enforced Disappearances and the European
Court of Human Rights’ [2009] Harv. Hum. Rts. J. 133, 135.
67
Sethi [n 48] 29.
68
ibid, 29.
194
Putting the Victim’s Families First: The Comparative Analysis ...

criminal action’.69 The goal of the adjudication of human rights courts is not to
punish the individual but to provide reparation and redress to the victims and the
families of the victims. Therefore, there is no need for the high standard of proof of
beyond a reasonable doubt because the Court is not punishing an individual. In
order for the ECHR to rise to the standard and experience of the ACHR, it needs to
lower the evidentiary burden for torture claims.
Bibliography
European Court of Human Rights:
 Akkum and Others v. Turkey [2005] 21894/93 (Eur. Ct. H.R.)

 Imakayeva v. Russia [2006] 7615/02 (Eur. Ct. H.R.)

 Ireland v. United Kingdom [1978] 5310/7 (Eur. Ct. H. R.)

 Kurt v. Turkey [1998] 15/1997/799/1002 (Eur. Ct. H.R.)

 Labita v. Italy [2000] 26772/95 (Eur. Ct. H.R.) (Judges Pastor Ridruejo,
Bonello, Makarczyk, Tulkens, Strážnická, Butkevych, Casadevall and
Zupanèiè, dissenting)
 Togcu v. Turkey [2005] 27601/95 (Eur. Ct. H.R.)

Inter-American Court of Human Rights:


 Castillo-Páez v. Peru [1998] 63 C 1 (Inter-Am. Ct. H.R.)

 Cesti Hurtado v. Peru [1999] 78 C 1 (Inter-Am. Ct. H.R.)

 Godínez Cruz v. Honduras [1989] 5 C 1 (Inter-Am. Ct. H.R.)

 Loayza-Tamayo v. Peru [1997] 33 C 1 (Inter-Am. Ct. H.R.)

 “Street Children” (Villagran-Morales et al.) v. Guatemala [1999] 63 C 1


(Inter-Am. Ct. H.R.)
 Velásquez Rodríguez v. Honduras [1988] 4 C 1 (Inter-Am. Ct. H.R.)

Legislation:
 American Convention on Human Rights “Pact of San Jose, Costa Rice”
(B-32) Art. 5
 Convention for the Protection of Human Rights and Fundamental Freedoms
[1950] European Convention on Human Rights Art. 3
Rules of Court:
 Rules and Procedures of the Inter-American Court of Human Rights, Article
47 ‘Procedure for Taking Evidence’ (1)

69
Velásquez Rodríguez v. Honduras [n 5] ¶134.
195
KIIT Journal of Law and Society (Volume -5: No-1)

Articles:
 Barrett J, ‘Chechnya’s Last Hope – Enforced Disappearances and the
European Court of Human Rights’ [2009] Harv. Hum. Rts. J. 133.
 Claude O, ‘A comparative Approach to Enforced Disappearances in the
Inter-American Court of Human Rights and the European Court of Human
Rights Jurisprudence’ [2010] Intercultural Human Rights L. Rev. 407–464.
 Erdal U, ‘Burden and standard of proof in proceeding under the European
Convention’ [2001] Eur. L. Rev. 1–14.
 Sethi GS, ‘The European Court of Human Rights’ Jurisprudence on Issues
of Forced Disappearances’ [2001] WCL 29, 29.
Books:
 Pasqualucci JM, The Practice and Procedure of the Inter-American Courts
of Human Rights (1st, Cambridge University Press, Cambridge 2003) 1,
210.
 Loucaides LG, Essays on the Developing Law of Human Rights, (1st,
Martinus Nijhoff, Dordrecht 1995).
 Solla MFP, Enforced Disappearances in International Human Rights (1st,
McFarland & Company, North Carolina 2006) 1, 84. (
 Kazazi M, Burden of Proof and Related Issues: A Study on Evidence Before
International Tribunals (1st, Kluwer Law International, The Hague 1996)
1, 325.
 Erdal U, Bakîrcý H, Article 3 of the European Convention on Human
Rights: A Practitioner’s Handbook (1st, World Organization Against Torture
(OMCT), Geneva 2006) 4, 256.
 Yearbook of the European Convention of Human Rights, The Greek Case,
1969 (Martinus Nijhoff Publishers, The Hague 1972) 1, 196.
Chapters in edited books:
 Ramcharan BG, ‘Evidence’ in B.G. Ramcharan (eds), International Law
and Fact-Finding in the Field of Human Rights (1st, Martinus Nijhoff
Publishers, The Hague 1982) 64–82.

196
U.S. AND AFGHANISTAN: TRANSITION AND
BEYOND
Sanghamitra Patnaik*

Abstract
The United States is continually reducing its military involvement in
Afghanistan as indigenous Afghan security forces assume security responsibility
throughout the country. The current international security mission will come to
an end in 2014.The number of U.S. forces in Afghanistan, was at about 100,000 in
June 2011. It was reduced to a “pre-surge” level to 66,000 as of September 20,
2012. It has been reduced further to about 62,000. U.S. force levels are to fall to
34,000 by February 2014, with the drawdown which will take place in the winter
of 2013-2014. The U.S. force constitutes the majority of the international force.
The major concern of U.S. is to bring about stability in Afghanistan after 2014.
U.S. officials are looking for substantial election reform for next presidential
election, scheduled for April 5, 2014. It should be devoid of fraud that was rampant
in 2009 and 2010 Elections. An unexpected potential benefit to stability could
come from a negotiated settlement between the Afghan government and the Taliban
and other insurgent groups.
The United States and other donors continue to implement various development
projects—concerning water, power, and roads. To prevent severe economic
downturn in the post-2014 U.S. administration expects that Afghanistan would
exploit vast mineral, agricultural and hydrocarbon resources. U.S. officials also
hope greater Afghan integration into regional trade and investment patterns as
part of a “New Silk Road.” Impressing upon Afghanistan’s neighbors, particularly
Pakistan, to help Afghanistan’s stability has been a major focus of U.S. policy
since 2009, but has had limited success. As announced in the July 8, 2012, Tokyo
donors’ conference, U.S Administration‘s economic aid requests for Afghanistan
would likely to continue at current levels to at least FY2017.
From Early History to the 19th Century
Alexander the Great conquered Afghanistan in three years (330 B.C.E. to 327
B.C.E). Buddhism was the dominant religion in Afghanistan. Towards the end of
the seventh century, Islam spread in Afghanistan when Arab invaders defeated the
Persian empire of the Sassanians. In the 10th century, Muslim rulers called Samanids,
from Bukhara (in what is now Uzbekistan), penetrated into Afghanistan. The
complete conversion of Afghanistan to Islam occurred during the rule of the

197
KIIT Journal of Law and Society (Volume -5: No-1)

Gaznavids in the 11th century.western Afghanistan, and the Mughals controlling


Kabul and the east. A monarchy by ethnic Pashtuns was founded in 1747 by Ahmad
Shah Durrani. He was a senior officer in the army of Nadir Shah, ruler of Persia.
When Nadir Shah was assassinated the Persian control over Afghanistan weakened.
Early 20th Century and Cold War Era
King Amanullah Khan (1919-1929) attacked British forces in Afghanistan
(Third Anglo-Afghan War) and won complete independence from Britain .It was
recognized in the Treaty of Rawalpindi (August 8, 1919). He was succeeded by
King Mohammad Nadir Shah (1929-1933), and then by King Mohammad Zahir
Shah. Zahir Shah’s reign (1933-1973) was remarkable as it promulgated a
constitution in 1964 that established a national legislature. It promoted freedoms
for women. The countryside was secured by local tribal militias called arbokai.
Zahir Shah also built ties with the Soviet government by purchasing arms. The
Soviet Union built large infrastructure projects in Afghanistan during Zahir Shah’s
time, such as the north-south Salang Pass/Tunnel and Bagram airfield.
This period was underlined by the height of the Cold War. The United States
wanted to deter Afghanistan from falling into the Soviet influence. It was reflected
in Vice President, Richard Nixon’s visit of Afghanistan in 1953, President
Eisenhower’s visit in 1959. President Kennedy hosted King Zahir Shah in 1963.
The United States tried to counter Soviet influence, providing agricultural and other
development assistance. The major U.S.-funded projects were large USAID-led
irrigation and hydroelectric dam in Helmand Province, including Kajaki Dam.
Afghanistan started slipping into instability in the 1970s, during the Nixon
Administration, when the diametrically opposed Communist Party and Islamic
movements grew in strength. While receiving medical treatment in Italy, Zahir Shah
was dethroned by his cousin, Mohammad Daoud, a military leader. He established
a dictatorship with strong state involvement in the economy. Daoud was overthrown
and killed in April 1978 by People’s Democratic Party of Afghanistan (PDPA,
Communist party) military officers. The direction was issued by two PDPA leaders
namely, Hafizullah Amin and Nur Mohammad Taraki. Taraki became president,
but he was displaced in September 1979 by Hafizullah Amin. Both leaders tried to
impose radical socialist change on a traditional society by redistributing land and
bringing more women into government. The attempt at rapid modernization through
reforms was at the root of rebellion by Islamic parties opposed to such moves.
Soviet Invasion -1979
The Soviet Union troops invaded Afghanistan on December 27, 1979, to deter
Islamic militias- the mujahedin and replaced Amin with Babrak Karmal (Parcham,
198
U.S. and Afghanistan: Transition and Beyond

or “Banner” faction of the PDPA). He was exiled by Taraki and Amin in 1978.Soviet
forces numbered about 120,000 were assisted by Democratic Republic of
Afghanistan (DRA) military forces of about 25,000-40,000, supplemented by about
20,000 paramilitary and tribal militia forces. The Soviet and Afghan forces were
put to test by the mujahedin benefited from U.S. weapons and assistance.
Mujahedin
The mujahedin were coordinated by seven major parties, sometimes referred to
as the “Peshawar 7”—were Mohammad Nabi Mohammadi (Islamic Revolutionary
Movement of Afghanistan); Sibghatullah Mojaddedi (Afghan National Liberation
Front); Gulbuddin Hikmatyar (Hezb-i-Islam—Gulbuddin, Islamic Party of
Gulbuddin); Burhanuddin Rabbani (Islamic Society); Yunus Khalis (Hezb-i-Islam);
Abdi- Rab Rasul Sayyaf (Islamic Union for the Liberation of Afghanistan); and Pir
Gaylani (National Islamic Front). The mujahedin were supplied by U.S portable
shoulder-fired anti-aircraft systems called “Stingers,” which was highly effective
against Soviet aircraft.
About 13,400 Soviet soldiers were killed in the war, according to Soviet figures
which turned Soviet domestic opinion against the war. In 1986, when Mikhail
Gorbachev took the Soviet leadership, Karmal was replaced with the director of
Afghan intelligence, Najibullah Ahmedzai . Najibullah was a Ghilzai Pashtun, and
belonged to the Parcham faction of the PDPA
Geneva Accords 1988
On April 14, 1988, according to Geneva Accord, Gorbachev agreed to withdraw
from Afghanistan. The withdrawal was completed by February 15, 1989 while the
weak Najibullah government was in power. United States and Soviet Union moved
for a political settlement to the Afghan conflict. It was accelerated with the collapse
of the Soviet Union in 1991. On September 13, 1991, both Moscow and Washington
agreed to cut off military aid to Afghanistan.
According to the State Department a total of about $3 billion in economic and
covert military assistance was received by the Afghan mujahedin from US between
the year 1980 and the end of the Soviet pull out in 1989. The covert aid program
grew from about $20 million per year in FY1980 to about $300 million per year
during FY1986-FY1990.2 The Soviet pullout paved the way for a reduction in
subsequent US assistance, as indicated in Table 1.
Table-1- U.S. Assistance to Afghanistan, FY1978-FY1998
($ in millions)

199
KIIT Journal of Law and Society (Volume -5: No-1)

Source- Department of State

In January 1989, the United States closed its embassy in Kabul and it remained
so until the fall of the Taliban in 2001.In spite of the Soviet withdrawal in 1989,
Najibullah still enjoyed Soviet financial and advisory support. The Afghan forces
could deter the first post-Soviet withdrawal mujahedin offensives. The gradual
reduction of financial and advisory support of Soviets towards 1992 weakened the
Najibullah government and he publicly agreed to step down as soon as an interim
government was formed. The announcement unlashed rebellions by Uzbek and Tajik
militia commanders in northern Afghanistan. Abdul Rashid Dostam joined prominent
mujahedin commander Ahmad Shah Masoud of the Islamic Society. Masoud was
known as a brilliant strategist for preventing the Soviets from conquering his power
base in the Panjshir Valley north of Kabul. The mujahedin regime started in April
18, 1992 with the fall of Najibullah.

200
U.S. and Afghanistan: Transition and Beyond

The Rise of the Taliban


The differences among the mujahedin parties were exposed with the fall of
Najibullah The leader of Afghan National Liberation Front, Sibghatullah Mojadeddi,
was president during April-May 1992. Rabbani became president in June 1992
with the condition that he would serve till December 1994. But when he refused to
step down on the plea that political authority would disintegrate without a clear
successor his decision was vehemently opposed by other mujahedin leaders in general
and Gulbuddin Hikmatyar, leader of the Islamist conservative Hizb-e-Islam
mujahedin party.
In 1993-1994, Afghan Islamic clerics and students, belonging to rural, Pashtun
origin, formed the Taliban movement. Most of them from former mujahedin were
disillusioned with conflict among mujahedin parties. Taliban practices affirmed
the conservative Pashtun tribal traditions. They viewed the Rabbani government as
weak, corrupt, and anti-Pashtun. The four years of civil war between the mujahedin
groups (1992-1996) tilted popular support in favor of the Taliban to bring stability
in the country. The Taliban took control of Qandahar in November 1994 under the
leadership of Mullah Umar In September 1995, the Taliban captured Herat province,
bordering Iran, and imprisoned its governor, Ismail Khan, ally of Rabbani and
Masoud. In September 1996, the Taliban took control of Kabul and subsequently,
they seized Najibullah, his brother, and aides, and then hanged them.
Taliban Rule (1996- 2001)
Mullah Muhammad Umar, the head of Taliban regime remained in the Taliban
power base in Qandahar. Al Qaeda leader Osama bin Laden was relocated from
Sudan to Afghanistan, where he had been a recruiter of Arab fighters during the
anti-Soviet war, in 1996. He at first was located in territory in Nangarhar province
controlled by Hezb-i-Islam of Yunus Khalis. Subsequently he gained predominance
over Afghanistan as the Taliban captured power in all parts of the territory. Umar
chose to forge a bond with Bin Laden and refused U.S. demands to extradite him.
The Taliban’s strict adherence to Islamic customs and harsh punishments, made
them to lose support at both national and international fronts. They enforced strict
Islamic practices like bans on television, Western music, and dancing. It put
restriction on women education and taking up jobs outside the home, except in
health care. It did not hesitate to publicly execute some women for adultery.
U.S. Policy and the Taliban
The Clinton Administration was unable to bring any reforms in the Taliban’s
policies. Consequently, it withheld recognition of Taliban as the legitimate
government of Afghanistan. The State Department ordered the closure of Afghan
embassy in Washington, DC, in August 1997. In May 1999, the Senate passed
201
KIIT Journal of Law and Society (Volume -5: No-1)

S.Res. 68 called on the President not to recognize an Afghan government that


oppresses women. In April 1998, then-U.S. Ambassador to the United Nations Bill
Richardson (along with Assistant Secretary of State Karl Inderfurth and NSC senior
official Bruce Riedel) visited Afghanistan, but with no result as the Taliban refused
to hand over Bin Laden. After the Al Qaeda bombings of U.S. embassies in Kenya
and Tanzania in August 7, 1998, the Clinton Administration began to put strong
pressure on the Taliban to extradite him. It imposed U.S. sanctions on Taliban-
controlled Afghanistan and achieved adoption of some U.N. sanctions as well. In
1998, as a response to the Africa embassy bombings, the United States fired cruise
missiles at alleged Al Qaeda training camps in eastern Afghanistan, but Bin Laden
was not hit.
Throughout 2001 and prior to the September 11 attacks, Bush Administration
preferred to apply economic and political pressure on the Taliban while engaging in
some dialogue with it. It also refused to give any kind of military assistance to the
Northern Alliance. In consonance with U.N. Security Council Resolution 1333,
the State Department ordered for the closure of Taliban representative office in
New York in 2001 while Taliban representative Abdul Hakim Mujahid continued to
operate informally.9 The Bush Administration tried its best to step up engagement
with Pakistan to reduce its support for the Taliban.
Even though the Northern Alliance was supplied with Iranian, Russian, and
Indian financial and military support, it could not hold on its position against the
Taliban after it lost Kabul in 1996. By September 11 attacks, 75% of the country,
including almost all provincial capitals were dominated by the Taliban. The Alliance
suffered a major setback on September 9, 2001 when Ahmad Shah Masoud was
assassinated by Al Qaeda. He was succeeded by one of his top lieutenants,
Muhammad Fahim.
Policy in the aftermath of September 11 Attacks
In the aftermath of September 11 attacks, the Bush Administration decided to
overthrow the Taliban when it turned down a final U.S. offer to extradite Bin Laden.
.President Bush postulated a strong policy of equating those who harbor terrorists
to terrorists themselves. It wanted a friendly regime in Kabul to enable U.S. forces
to search for Al Qaeda personnel.
U.N. and Congressional Authorization for Use of Military Force (AUMF)
The US sought U.N. support for military action. The U.N. Security Council
Resolution 1368 of (September 12, 2001), said that the Council “expresses its
readiness to take all necessary steps to respond (implying force) to the September
11 attacks.” (http://daccess-ods.un.org/TMP/3554149.27005768.html) In Congress,

202
U.S. and Afghanistan: Transition and Beyond

S.J.Res. 23 was passed in the Senate with 98-0 and the House, P.L.107-40, signed
on September 18, 2001 without any objection. It authorized President to take “all
necessary and appropriate force against those nations, organizations, or persons he
determines planned, authorized, committed, or aided the terrorist attacks that occurred
on September 11, 2001 or harbored such organizations or persons.” (Grimmett,2007)
The Operations Begin
Major combat in Afghanistan known as (Operation Enduring Freedom, OEF)
started on October 7, 2001. The U.S. primarily focused on air-strikes on Taliban
and Al Qaeda forces. The operations aimed at helping the Northern Alliance and
Pashtun anti-Taliban forces by directing U.S. air strikes on Taliban positions. In l
October 2001, about 1,300 Marines moved into Afghanistan to mount pressure on
the Taliban around Qandahar. The Taliban regime lost Mazar-e-Sharif on November
9, 2001, to forces led by General Dostam. The Taliban lost the south and east to
U.S.-supported Pashtun leaders, including Hamid Karzai. The end of the Taliban
regime came on December 9, 2001, when the Taliban surrendered Qandahar and
Mullah Umar fled the city, leaving the administration under Pashtun tribal law.
The”Operation Anaconda” was conducted by the joint U.S. and Afghan forces
in the Shah-i-Kot Valley south of Gardez (Paktia Province) during March 2-19,
2002, against 800 Al Qaeda and Taliban fighters. In March 2003, under “Operation
Valiant Strike”, U.S. troops raided suspected Taliban or Al Qaeda fighters in villages
around Qandahar. On May 1, 2003, Rumsfeld, then-Secretary of Defense announced
an end to “major combat.”
Post-Taliban Governance-Building Efforts
President George W. Bush argued that the U.S. departure from the region after
the 1989 Soviet pullout plunged Afghanistan into chaos and confusion which should
not be repeated after the defeat of the Taliban. The Bush Administration and
international partners of the United States tried to dismantle local security structures.
Their effort was to build up a strong democratic central government with developed
economy. The nation-building effort was supported by the United Nations,
international institutions, and U.S. partners.
The Obama Administration reiterated this strategy during 2009- 2011.He in
some ways expanded the nation-building policy.14 No matter how expansive it
was, the U.S. mission of , building the capacity of and reforming Afghan governance
have been known as key to the success of U.S. policy. This has been emphasized
explicitly in each Obama Administration policy review, strategy statement, and
report on progress in Afghanistan. All major international conferences on
Afghanistan, including the NATO summit in needs in Afghanistan.

203
KIIT Journal of Law and Society (Volume -5: No-1)

4. Bridges
Afghan officials say that trade with Central Asia increased after a bridge over
the Panj River, connecting Afghanistan and Tajikistan, opened in late 2007 with
$33 million in (FY2005) U.S. assistance. It is helping in developing Panjshir province
the political base of the Northern Alliance.
5. Electricity
It has been a major U.S. focus because its popularity. Da Afghanistan Breshna
Sherkas (DABS), a national power company received $88 million from USAID to
generate revenue from power sector and manage the nation’s electricity grid. The
U.S. planned to enhance the electricity capacity of southern Afghanistan by expanding
the capacity of the Kajaki Dam, located in Helmand Province known as “Kandahar-
Helmand Power Project,” (KHPP).
6. Agriculture
About 80% of Afghans live in rural areas. The agriculture sector has always
been earmarked as the key to Afghanistan’s economy and stability. The late
Ambassador Holbrooke in his January 2010 strategy document outlined U.S policy
to strengthen Afghanistan’s agriculture sector as the mainstay of economic growth.
From 2002 until the end of 2012, USAID has spent $1.9 billion to empower
the Ministry of Agriculture, Irrigation, and Livestock (MAIL) to have increased
access to markets and to provide alternatives to poppy cultivation. According to
2013, SIGAR report, USAID programs helped Afghanistan to double its agricultural
output over the past five years. Afghanistan has achieved remarkable success in the
exports of high-quality pomegranate juice.
The U.S. Department of Agriculture sent about 110 personnel in Afghanistan
to work on long-term projects. They were engaged in activities like providing new
funds to buy seeds and agricultural equipment and to encourage agri-business.
U.S. strategy is very much focused on not only crop choice but to construct
infrastructure required for a healthy legitimate agriculture sector. It includes road
building, security of the routes to agriculture markets, refrigeration, storage, transit
through Pakistan and other transportation of produce, building legitimate sources
of financing, and other aspects of the industry.
7. Oil and Gas
Years of war deterred the development of a hydrocarbons energy sector in
Afghanistan. USAID has taken up to fund test projects to develop gas resources in
northern Afghanistan. A key project is focusing on to build a 200 megawatt gas-
fired thermal plant and associated transmission lines in northern Afghanistan

204
U.S. and Afghanistan: Transition and Beyond

(“Shehbergan Program”). The plant is going to link l Afghanistan’s natural gas


field in Shehbergan to the population center in Mazar-e-Sharif. The total cost of the
project, is estimated at $580 million and going to be completed around 2016. It is
funded by USAID, the Overseas Private Investment Corp. (OPIC), the Asian
Development Bank, and the Afghan government.
U.S. Policy in Afghanistan: Transition and Beyond
The Obama Administration is putting all out efforts to prevent Afghanistan
from becoming again a safe haven for terrorists. Its definite goal is to enable the
Afghan government to defend the country and govern with efficiency and
transparency.( Report, 2012)
In February 2009, the U.S. Administration created a post of “Special
Representative for Afghanistan and Pakistan” (SRAP). Ambassador Richard
Holbrooke first occupied the post. After the death of Holbrooke in 2010 this office
was led by Ambassador Marc Grossman at the State Department during February
2011-November 2012. In early May 2013, Secretary of State John Kerry identified
veteran Ambassador James Dobbins as his permanent replacement. This office is
likely to be continued till the end of U.S. withdrawal in 2014.
There are some high-ranking officials who are entrusted with looking after
U.S. economic assistance and Embassy operations and coordinating U.S. rule of
law programs. The U.S. civilian and coalition military personnel are also designated
as advisors to Afghan ministries.
As the U.S military involvement in Afghanistan is coming to an end, the
Administration is putting its efforts to “normalize” its presence in Afghanistan. The
plan of State Department is underway to assume the lead role in Afghanistan, as it
did in Iraq. In June 2010, Deputy Secretary of State William Burns inaugurated a
U.S. consulate in Herat.
The State Department spent about $80 million on a facility in Mazar-e-Sharif.
The objective was to open a U.S. consulate in April 2012, but the site was abandoned
due to some security reasons. Opening of a U.S. consulate is considered an important
signal of U.S. interest to go for a kind of engagement with the Tajik and Uzbek
minorities of Afghanistan. Alternative locations are being considered, 15 and opening
of consulates are planned for the major cities of Qandahar and Jalalabad by the end
of 2014.
Afghanistan Infrastructure Trust Fund was set up in early 2013 to aid directly
to Afghanistan. It is managed by the Asian Development Bank. To start with,
United States contributed $45 million in March 2013 and is expected to be followed
by tens of millions more to fund a power grid project running north-south.

205
KIIT Journal of Law and Society (Volume -5: No-1)

The key to U.S. economic strategy is very well reflected in the New Silk Road
strategy. It is to encourage Afghanistan’s trade relationships. It is doing so by
encouraging regional economic integration through bilateral economic agreements
with Afghanistan like 2011 agreement between Afghanistan and Pakistan to
implement their 2010 transit trade agreement. To give a boost to Afghanistan’s
trade, USAID is funding a five year project amounting to a sum of $63 million
during 2010-2014. It is to simplify the customs clearance process.
An agreement was reached after a meeting between President Obama and
President Karzai in Washington, DC, on January 11, 2013. The U.S. security mission
was to transform itself from a role of combat leadership to a “support” role by the
end of June 2013. This transition was announced on June 18, 2013. The U.S. and
NATO security strategy will continue until the end of 2014. The strategic partnership
agreement highlights a set of principles and commitments to guide relations between
United States and Kabul after 2014. There should be free and fair presidential
elections in 2014. The new government should have capacity to fight corruption,
improve efficiency and protect human rights, including the rights of women.
The meeting took place between Deputy Secretary of State William J. Burns
and the Afghan foreign minister, Zalmai Rassoul, It was the second round of
negotiations on how to carry out the agreement that was signed by President Obama
and President Hamid Karzai in May 2012.
i. Major Aspects of the Agreement:
The strategic partnership agreement manifests the post-2014 U.S. – Afghan
relationship. It has duration of 10 years. The major provisions are the following
(White House, 2012):
 A commitment to continue and foster U.S.-Afghan “close cooperation”
 This strongly implies, but does not state outright, that U.S. troops will
remain in Afghanistan after 2014, and no troop numbers are mentioned in
the document. The document provides for negotiations on the Bilateral
Security Agreement,
 ?The United States will seek funds (appropriations) to provide training and
arms to the Afghan security forces. The agreement does not stipulate which
systems are to be provided.
 The United States will designate Afghanistan as a “Major Non-NATO Ally,”
a designation reserved for close U.S. allies. In keeping with that pledge, on
July 7, 2012, then Secretary Clinton stopped in Afghanistan and announced
that designation. It opens Afghanistan to receive (sale, donation) U.S.
weaponry of 42 the same level of sophistication as that sold to U.S. NATO

206
U.S. and Afghanistan: Transition and Beyond

allies, and facilitates provision of training and funds to leasing defense


articles.
 There will be no “permanent” U.S. bases or the use of Afghan facilities for
use against neighboring countries, but the agreement would apparently allow
long term U.S. use of Afghan facilities. Over the past four years, the National
Defense Authorization Act has contained a provision explicitly prohibiting
the U.S. establishment of permanent bases in Afghanistan.
 The Administration will request economic aid for Afghanistan for the duration
of the agreement (2014-2024). No amounts were specified in the document.
 The Afghan government reportedly wanted a $2 billion per year commitment
written into the agreement but the United States told Afghanistan that
amounts can only be determined through the appropriations process.
In brief, Strategic Partnership Agreement includes mutual commitments in the areas
of:
 Protecting and Promoting Shared Democratic Values

 Advancing Long-Term Security

 Reinforcing Regional Security and Cooperation

 Social and Economic Development

 Strengthening Afghan Institutions and Governance

The success of U.S. – Afghan relationship in post-2014 is very much depending on


the role of global community. Picking the thread from Bonn and Chicago and the
U.S.-Afghanistan Strategic Partnership Agreement, the United States joined over
70 partners in Tokyo to continue support for Afghanistan.
The Tokyo Framework is based on principles of inclusive and sustainable economic
growth and development ( Fact sheet,2012):
 Governance has a direct bearing on development performance;
 International assistance aligned with national priority programs enhances
efficiency and sustainability of development assistance;
 International assistance through national budgets can improve national
institutional capacities, development performance, and accountability to its
citizens;
 Monitoring of development and governance benchmarks in a transparent
manner is a powerful means to enable accountability to the Afghan people,
and reinforce reciprocal commitments of donors and the Afghan Government
to improved development performance;

207
KIIT Journal of Law and Society (Volume -5: No-1)

 Private investment both domestic and foreign is key to sustainable economic


growth; and Regional cooperation facilitates the integration of regional
economies, thus contributing to the sustainability of development efforts in
Afghanistan
Conclusion:
A U.S. military withdrawal coupled with economic and diplomatic support will be
a confidence-building measure in Afghanistan. The effort should be made to
strengthen local governance and corruptions should be checked at all levels of
government. U.S. assessments say that the deficiencies in governance could
jeopardize stability after the 2014 transition.
Recommendations:
 Maintenance of Meaningful Non-Military Commitment
 To encourage Popular Political Participation and to conduct credible,
inclusive and transparent Presidential and Parliamentary elections in 2014
and 2015
 To support an Inclusive Peace
 Emphasis should be given on the critical role of Afghan civil society in
advocating and supporting human rights, good governance and sustainable
social, economic and democratic development.
 Due respect the rights of all Afghans, including women and minorities
 Effort should be made to achieve inclusive and sustained growth by focusing
on human development, food security, private investment, and decent work
and employment opportunities
 The budgets should cater in to local needs and preferences.
 To enhance the scope of justice for all in general and women in particular.
 To ensure the expeditious enforcement of the Constitution and other
fundamental laws in a fair and transparent way.
 To ensure socio-economic , political and cultural rights of women
 To develop proper mechanism to check corruption while strengthening
counter narcotics efforts by improving the capacity of state institutions.
 To strengthen the integrity of public financial management and the
commercial banking sector.

208
DISCRIMINATION AGAINST NORTH-EAST INDIANS
Akanksha Kapur*

Abstract
Insurgency and violence have marked life in the north-east for many years
and the states have been unable to share the fruits of India’s economic growth.
Much of the isolation of the north-eastern states can be attributed to violence and
a conspicuous presence of Indian troops in the region. The people of North East
India face many challenges. Fifty years of conflict between separatist groups and
government troops has led to a strong military presence and engendered a culture
of violence. Prolonged underdevelopment and the forces of modernisation and
globalisation have opened the region to resource extraction, multinational
corporations and the channels of international trade. India is regarded as the
‘world’s largest democracy’ by the international community but they remain largely
silent about human rights abuses within India’s borders. The situation in Jammu
and Kashmir is on the radar of India’s major trading and security partners, but
comparatively little is known about the Northeast.
Introduction
Northeast India (NEI) is a triangle-shaped territory sandwiched between Nepal,
Bhutan, China, Myanmar/Burma and Bangladesh and connected to the rest of the
country via a thin strip of land known as the ‘Chicken’s Neck’. It consist of the
State of Sikkim and parts of West Bengal (the neck) plus the ‘seven sister states’ of
Arunachal Pradesh, Assam, Meghalaya, Manipur, Mizoram, Nagaland and Tripura.
The presence of armed groups and the ongoing counter-insurgency operations
has a remarkable impact on every-day life on the people in North Eastern India. In
designated ‘disturbed areas’ the armed forces enjoy exceptional powers such as
shoot-to-kill, warrantless search, seizure and arrest, and immunity from prosecution
for their actions. This has caused deep resentment among the region’s populations.
The north eastern region is also crucial in environmental terms. Two of the
world’s 34 official ‘biodiversity hotspots’ pass through parts of NEI, fed by the
rivers of the potent Brahmaputra which flows down from the Tibetan plateau through
the fertile plains of Northeast India en route to the Bay of Bengal via Bangladesh,
accounting for more than one third of India’s total water resources.
Like Jammu and Kashmir, NEI is both highly militarized and under-developed.
The presence of armed groups and the ongoing counter-insurgency operations has a

*LL.B Student, Amity Law School, Noida.

209
KIIT Journal of Law and Society (Volume -5: No-1)

remarkable impact on every-day life and the multi-ethnic dimension to the conflict
in NEI often spreads over into community relations. In designated ‘disturbed areas’
the armed forces take pleasure in exceptional powers such as shoot-to-kill,
warrantless search, seizure and arrest, and immunity from prosecution for their
actions. This has caused deep antipathy among the region’s populations.
The Northeast states have accused New Delhi of neglecting the issues concerning
these states. A feeling of second-class citizenship meted out to them by mainland
Indians has led the natives of these states to seek greater self-governance. There are
also existing territorial disputes within the Northeastern states, including
between Manipur and Nagaland, Nagaland and Assam, Meghalaya and Assam, and
Mizoram and Assam. These are often based on historical border disputes and differing
ethnic, tribal or cultural affinities. 1 There have been a number of insurgent
activities and regional movements in all parts of the northeast, often unique in
character to each state. Military action by the armed and paramilitary forces and
political action have led to the intensity of these insurgencies unpredictable and to
the resolution of the insurgency in Mizoram.
Human rights abuses on the part of Indian forces in the area are frequently
traced to from immunity granted to Indian security forces under the Armed Forces
(Special Powers) Act, 1958. The act has been criticized by Human Rights Watch as
a “tool of state abuse, oppression and discrimination”. A report by the Institute for
Defense Studies and Analysis points to multiple occurrences of violence by security
forces against civilians in Manipur since the passage of the Act. The report states
that residents believe that the provision for immunity of security forces urge them
to act more brutally.
Thus, today the people of North-East India face several issues of racial
discrimination, harassment and violence inside and outside their home states as a
result of lack of awareness among the citizens of India about the region of northeast
and its unique culture. They are made to feel as ‘foreigners’ in their own country.2
Historical Background of Northeast India
Since NEI comprises of six different states a lot of ethnic and cultural diversity
is evident in that region. It is home to around 40 million people including 213 of the
635 tribal groups listed by the Anthropological Survey of India. The population is
chiefly rural, with only twelve per cent living in urban areas, and the region is also

1
Unruly Hills: A Political Ecology of India’s Northeast Bengt G. Karlsson (Berghahn
Books, 2011)
2
Friend not Foe: Opening Spaces for Civil Society Engagement to Prevent Violent
Extremism Cordaid (2011) http://www.cordaid.nl/nl/Friend-not-Foe-2.pdf
210
Discrimination against North East Indians

extremely diverse in terms of political and socio- economic conditions. The indigenous
population has much in common with the culture and traditions of their neighbouring
countries Tibet, Burma and the countries of Southeast Asia beyond.
After India attained independence in 1947 and was partitioned creating Pakistan
the princely states were given the option of joining either country, or staying
independent. The British pressed submissively for the establishment of an independent
‘Princestan’ in NEI that would remain loyal to the crown, but this was unacceptable
to both the Congress Party and the Muslim League. Most of the princely states
were too small to endure outside of a larger country and had little interest in joining
Pakistan. With no real choice, the majority opted to join India on the basis of
assurances from the independence movement that their autonomy, rights and customs
would be enshrined in the Indian constitution. The supremacy of local customary
law and tribal councils in designated ‘Sixth Schedule’ areas of Assam, Meghalaya
and Tripura was duly recognized in the Constitution, though the creation of India
caused more overnight partitions, for example in Tripura, which was divided between
India and East Pakistan.
NEI was thus altered from an colony of the British Empire to a landlocked
border-zone of newly independent India, sandwiched between Tibet, the new countries
of Pakistan and Bangladesh, and newly independent Burma (in which civil war had
already broken out). Despite this transformation, many of the British laws and
procedures for the administration of the ‘Northeast Frontier’ remained in place.
Condition of The North Eastern States- An Inside View
ARMED FORCES (SPECIAL POWERS) ACT, 1958 (AFSPA)
Before the article introduces as to what is the AFSPA all about it first throws
some light on the military force in India and its presence in the North- Eastern
states. India has one of the world’s largest standing armies. It is not known exactly
how many of its 1.3 million active soldiers and 1.3 million paramilitaries are stationed
in Northeast India, but some put the total including border guards and police
commandos as high as 450,000. To put this figure into context, the number of US
and allied troops in post-invasion Iraq (whose population is 20%, larger than that
of NEI) peaked at around 165,000.
In Manipur, the smallest and most militarised state in NEI, the security situation
is comparable to parts of Palestine, Iraq and Afghanistan. More than 60,000 military
and security personnel and more than 300 security checkpoints span the state. Dozens
of rebel groups control small swathes of territory. State-sponsored Village Defence
Forces (VDFs) are being established and more and more households own a weapon.
Armed Forces (special powers) Act is at the heart of feared security machinery

211
KIIT Journal of Law and Society (Volume -5: No-1)

that underpins de facto military rule in most parts of North East India. The Act
provides a blanket of immunity for the violent suppression of insurgent groups and
the communities that supported them. Countless number of extra-judicial killings
and disappearances has occurred in Nagaland, Manipur and Assam, of militants,
political leaders, activists and civilians. These practices continue to the present
day. In 2009 media and human rights organisations in Manipur reported more than
300 extrajudicial killings in the North Eastern states in the past two years.3 Many
die in open combat with armed groups and many are killed in what are known as
‘fake encounters’ in which an individual is picked-up by police or military forces
and is later found dead in a secluded location, their body squeezed into a rebel
uniform and planted with a 9mm pistol or a Chinese grenade and some unregistered
(illegal) SIM cards. Thus, proving them to be rebels and dangerous for the country.
While AFSPA has become synonymous with Manipur, where the act has been
in force since 1947, the entire States of Assam and Nagaland have also long been
declared as ‘disturbed areas’.
Since many years there have been a number of revolts by the citizens of the
north eastern territories against the AFSPA the most prominent among them is the
hunger strike or ‘fast until death’ practiced by Irom Chanu Sharmila since November
2000 which is still going on; but the government is still not ready to repeal the act
in spite of so many crimes like rape, assault, sexual assault etc committed by the
members of the armed forces under the immunity of the said act.
These Acts like POTA, TADA and AFSPA amount to what most democratic
countries would recognise as draconian security powers and impose a permanent
state of emergency. The various statutes allow for arrest and extended detention on
the basis of ‘reasonable suspicion’ without evidence, charge or trial.
VOILENCE AGAINST WOMEN IN THE NORTH –EAST
The armed-conflict situation prevalent in the North East India has intensified
the violence faced by women, which takes the form of sexual, mental or physical
abuse, killings and clashes. Although all the members of communities are affected
by the armed conflict, the impact on women and girls is far greater because of their
status in society and their sex.4 The region, under the shadow of conflict, has
witnessed a resurgence of patriarchal values and norms, which have brought with
them new restrictions on the movement of women, the dress they wear and more

3
‘Indian Army has two new mountain divisions in northeast’, India Talkies, 7 February
2011, available at: http://www.indiatalkies.com/2011/02/indian-army-mountain-divisions-
northeast.html.
4
Walter Fernandes & Sanjay Barbora, Ed. Changing Women.s Status in India : Focus on
the North East. North East Social Research Centre, Guwahati, Assam, 2002.
212
Discrimination against North East Indians

overtly physical violence such as rape, which is systematically used as a tactic


against a particular community. All this is compounded by the long social, economic
and psychological trauma of armed conflict.
The Indian government has enacted some ground-breaking legislation to enhance
women’s rights. The Indian Constitution was amended in 1993 to stipulate that 33
percent of elected seats in local, state and national elections must be reserved for
women, but the actual representation of women remains low at just 10 percent
across India. In the autonomous ‘Sixth Schedule’ areas in NEI, representation is
much lower or non-existent because the governing councils have not implemented
reforms.
The Domestic Violence Act of 2005 is supposed to provide free legal advice
and shelter for victims, but it has not been adequately funded or implemented in
NEI. The same is true of the National Commission for Women Act of 1990, which
mandates the establishment of State Women’s Commissions (SWCs) under the
backing of a national body. While SWCs have been established in the majority of
NEI states, they lack adequate resources, infrastructure and committed personnel.
The same is true of NEI’s State Human Rights Commissions. In 2007 the United
Nations’ Committee on the Elimination of Discrimination against Women (CEDAW)
called upon the government of India to ‘speed up its efforts to forge consensus on
the constitutional amendment reserving one third of the seats in Parliament and
state legislatures for women and undertake awareness-raising about the importance
of women’s participation in decision-making for society as a whole.
THE RULE OF LAW
In 2001 the Indian government established the Ministry of Development of the
North Eastern Region (DONER) to accelerate development of the north eastern
states through infrastructural projects. Today NEI receives around ten per cent of
the federal budget despite having only four per cent of the population, but still
adequate amount of development in these areas is not visible.5
In addition to the insurgency, two more problems are said to have hindered
development. First, the army has been given increasing power over development as
part of an underlying policy to win over local ‘hearts and minds’. Second, so much
of North East India’s development budget is being drained-off by a vast, unresponsive
bureaucracy and corrupt political class that government food, education, health,
housing and livelihood programmes are being diluted in many of the places they are
needed most.

5
Trigger Happy’: Excessive Use of Force by Indian Troops at the Bangladesh Border
Human Rights Watch (2010) http://www.hrw.org/node/94641
213
KIIT Journal of Law and Society (Volume -5: No-1)

Armed groups threaten public officials and extort money from local businesses.
‘Taxes’ are collected at security checkpoints. A parallel economy fuelled by drugs
and guns flourishes with both the army and rebel groups.
Intravenous drug use has left Manipur with one of the highest HIV rates in
India and food insecurity is compounded by farmers, subsidised by advance payments
from ‘druglords’, growing poppy and marijuana plantations instead of edible crops.
Weapons and munitions have flooded the area from across the borders with Burma
and China. Corruption and the threat of armed violence routinely influence decisions
about infrastructure, construction, land acquisition and environmental protection,
causing growing resentment of the government in resource rich area.
FREEDOM OF INFORMATION AND MOVEMENT
India being a democratic nation provides its citizens with the right to free press
and pluralistic media. Investigative journalism occupies a crucial role in exposing
corruption and holding public officials to account. In Northeast India, however,
several conflicts have greatly undermined press freedom. Reporting on unlawful
activities involving the police, the army, state officials exposes journalists in North
East India to a raft of dangers.6 Dozens of journalists have been killed by underground
groups and editors are often threatened with violence for revealing insurgents in an
unfavourable light, or refusing to portray them in a favourable one.
The Indian government deliberately disqualifies its activities in North East
India as a formal armed conflict to avoid its obligations under international
humanitarian law. At the same time, it maintains that multiple insurgencies and
counter-insurgency operations make the region too dangerous for foreign journalists
to be admitted.
Wide-ranging exemptions to India’s freedom of information law for both military
and national security matters significantly hamper the ability of local journalists to
gather information. Military forces involved in human rights abuses go to great
lengths to guard their misdeeds from public scrutiny.
Foreigners require special permits to enter several states in North East India.
Anyone who appears to be even slightly interested in reporting on the security or
human rights situation of the region is denied permission. Even Indian citizens
require special permission to enter the States of Arunachal Pradesh, Mizoram and
Nagaland. Foreign visitors admitted to States such as Nagaland and Manipur can
expect the close attention of the local Intelligence Bureau.

6
Baruah, Apura Kumar (1991), Social Tensions in Assam: Middle Class Politics,
Guwahati: Purbanchal Prakashan.
214
Discrimination against North East Indians

Condition of The North Eastern State Citizens Outside Their Own States – An
Outside View
RACIAL DISCRIMINATION
‘At the heart of racism is the religious assertion that God made a creative
mistake when He brought some people into being.’
-Friedrich Otto Hertz
Most Indians perceive racism as a phenomenon that exists in other countries,
particularly in the West, and without fail, see themselves as victims. They do not
see themselves harbouring racist attitudes and behaviour towards others whom they
see as inferior.7 But time and again, various groups of people, particularly from the
north-east have experienced forms of racial discrimination and highlighted the
practice of racism in India. Racism is most often felt, perceived, like an invisible
wound, difficult to articulate or recall in the language of the law or evidence. In that
sense, everyday forms of racism are more experiential rather than an objectively
identifiable situation. A significant act of Racism that took place in Delhi after the
BRICS Summit in New Delhi 2012 the Delhi Police’s motto of “citizens first” was
on full display, when they arrested non- citizens under preventive detention— the
Tibetan refugees.8 But the real problem for the security personnel cropped up when
they had to identify Tibetans on the streets of Delhi. This problem for the state
forces was compounded by the fact that Delhi now has a substantial migrant
population from the north-east whose physical features could be quite similar to
those of Tibetans. So, the forces went about raiding random places in Delhi,
questioning and detaining people from the region. North-eastern individuals travelling
in vehicles, public transport, others at their workplaces, and so on all became
suspects.
Many were asked to produce their passports or other documents to prove that,
indeed, they were Indian citizens and not refugee Tibetans. In some cases, ‘authentic’
Indians had to intervene in order to endorse and become guarantors of the authenticity
of the nationality of these north-easterners.
RACIAL DISCRIMINATION AGAINST STUDENTS FROM NORTH EAST
Of the 66.35% of students from the North East that migrate for higher studies,
while 35% of migrants migrate for employment opportunities in other cities of

7
Arun Irengbam, .Between the Lines: Stereotypes and Prejudices. Opinion-1, Article
published in Manipur Update-January Issue (Volume I Issue II, January 2000)
8
‘This is our land’: Ethnic violence and internal displacement in north-east India Internal
Displacement Monitoring Centre (2011) http://www.internal displacement.org/
8025708F004BE3B1/(httpInfoFiles)/33F71FE1DC7DA917C125795600303A63/$file/
India-SCR-Nov2011.pdf
215
KIIT Journal of Law and Society (Volume -5: No-1)

India. 15% of employment migrations are for Government jobs and 85% for un-
organized private sectors.
State governments like that of Manipur have failed to create employment
opportunities within the state, and started encouraging students to seek employment
opportunities outside the state. It seems the state governments are yet to learn the
dangers of sending students outside the state through placement agencies. With
fraud placement agencies targeting youngsters and children for human trafficking,
the dangers of migration are various.
The challenges faced by North Easterners in megacities, particularly in Delhi
and the National Capital Region, include racial discrimination and sexual violence
in the workplace, market areas, colleges, schools, universities and the colonies where
they live. India is a caste-based society. Caste still runs and controls most segments
of Indian society. The racial discrimination and sexual violence faced by North
East communities are also reflections of this caste-based society.9
Patriarchal and caste-based Indian societies often have the impression that
young people from the North East are polluting people socially, culturally and
religiously. Despite differences in appearance, dress code, or culture, are also fellow
citizens, and a part of Indian society. Such a discriminating mindset violates the
inspirational ideal of “Unity in Diversity” in Indian Culture.
Every Indian citizen has the right to migrate and live anywhere within the
Indian Territory. But such rights are being denied to North East Indian communities
in megacities. Discrimination, victimization and the lack of justice from the law-
enforcing agencies are the major factors.
The North East political leaders and state governments need to address the
issues of racial discrimination and sexual violence immediately. The region will get
hit with challenges of human trafficking, specifically with India’s Look East Policy
to open a gateway to South Asian countries. The placement agencies have targeted
North East women for sex trade, bride trafficking, spa massage service, and men
for bonded labour. All these should be taken into account in addressing the challenges
faced by the people from North East India.
Few Cases Of Crimes Committed Against The North- Eastern Students
Case 1: In April 2012, the death of a 19-year-old Manipuri boy Richard Loitam,
under suspicious circumstances, in his college hostel in Bangalore sparked protests
demanding justice for the student.

9
Biswas, Prasenjit and Chandan Suklabaidya (2008), Ethnic Life-Worlds in northeast
India, New Delhi: Sage Publications.

216
Discrimination against North East Indians

Case 2: In August 2012, rumours of threat to their lives saw a large-scale exodus
of north-east Indian people from Bangalore.
Case 3: In January 2014, Nido Taniam, a 20-year-old student from Arunachal
Pradesh succumbed to his injuries a day after being beaten up by a group of eight
people in Delhi.
Case 4: In January 2014, two young women from Manipur were thrashed in full
public view by local goons in Delhi.
These are just some of the incidents when people from the north-east have
come under attack in various metros in the country. Activists and people from the
region termed most of these attacks as ‘racial’ in nature as they struggle to tackle
the chronic alienation that they feel outside the north-east. Hundreds of people from
north-east India, who currently live in Bangalore, staged a protest to end racism
against their kin, in the aftermath of the death of Nido, at Town Hall.
“The identity of an Indian man [or woman] is culturally defined and anyone
who doesn’t fit that mould is an outsider.” Casual racism is commonplace. They
are derided as “Chinkies” (a reference to single-fold eyelids) or “bahadur” (a common
term for Nepalese male servants in India).
In 2007, the Delhi police published a much-criticized booklet, advising migrants
from the northeast to avoid wearing revealing clothes and to not cook their native
foods, such as bamboo shoots and fermented soy beans, for fear of upsetting Indian
neighbors with unfamiliar smells.
In 2011, the Home Affairs ministry made the use of hate-speech like “Chinky”
punishable with five years in jail. Enforcement, naturally, is impossible, and
legislation without the propagation of a multicultural and multiethnic view of India
is meaningless.
In the recent study conducted by Jamia Millia Islamia’s Centre for North East
Studies and Policy Research with National Commission for Women (NCW) found
that 60% of women from North East India, who have moved to major cities in
India, are reported to face harassment and discrimination. City wise- New Delhi is
reported to be most intolerant city towards women from north east India at a
staggering rate of 81 per cent of women respondents facing racial discrimination.
Politics of Exclusion
Most of the local decision-making has genuinely been delegated to local
institutions of governance; the initial promise of a quasi-federal system of governance
has steadily been replaced by a stronger centre and largely submissive state and
regional legislatures. While many people in NEI support self-determination for
native groups, devolution along ethnic lines has also encouraged a politics of
217
KIIT Journal of Law and Society (Volume -5: No-1)

exclusion, with minority communities in newly devolved areas often wholly


disenfranchised. All of this has given self-determination a bad name, contributing
to widespread skepticism within NEI about the government’s handling of the conflict
and the vested interests in maintaining the status quo. Civil society is responding to
this challenge by trying to re-frame debates about self-determination in terms of
justice and equality instead of ethnically-based separatism. The Indian government’s
economic policies have also fuelled resentment and insecurity.
When India gained its independence, the Northeast’s GDP per capita was slightly
higher than the national average; today the region lacks the infrastructure and
opportunity of other parts of India – despite making a substantial contribution to
the nation’s natural resources. Wages are around 40% less than the national average.
NEI supplies oil to other states yet petrol prices are among the highest in the country.
Staples like rice and milk that could easily be produced in the region are imported
from other parts of India. The shared sense of deprivation and exploitation that has
stoked anti-nationalist sentiment and militancy in NEI. There are often heard
statements like; the people in the NEI are not Indians but the resources present in
those areas are.
India’s ‘Look East’ policy, focused on forging closer economic and political
ties with its neighbours, and China’s relentless expansion across the border has
reaffirmed both the geostrategic importance of the region and the feeling that key
policy decisions have been taken out of local people’s hands. Highly controversial
plans to increase resource extraction and construct a new generation of hydro-
electric power-producing ‘megadams’ have added to the sense of alienation from
central government.
Long-term inward migration from other parts of India coupled with the
displacement of indigenous populations and the emergence of a insatiable middle
class has also worsened NEI’s internal tensions and age-old tribal disputes. The
rapid accumulation of land and wealth by privileged individuals is contrasted – as
in much of India – by rural areas where the majority of the population survives on
less than one dollar a day through subsistence agriculture and minimal state
assistance. Internal displacement is also an ongoing problem. From the 1990s to
the start of 2014, over 800,000 people were forced to flee their homes in episodes
of inter-ethnic violence in western Assam, along the border between Assam and
Meghalaya, and in Tripura. According to conservative estimates, some 76,000 people
remain in internal displacement in NEI due to the prolonged armed violence.
Conclusion
The Constitution of India lays down many provisions and rights to safeguard
the minorities and to fulfill the aspirations of the citizens of the country irrespective
218
Discrimination against North East Indians

of caste, race, creed, sex, religion etc. While framing the constitution, many
provisions were borrowed from many countries to make our constitution the best of
all which would be required for effective governance and to provide its citizens
liberty, justice and equality.10 But it is note-worthy to analyze whether or not these
provisions are complied with in today’s scenario. Being geographically isolated
from the mainland India does not mean the region has no potential, or it cannot be
developed. North East region has enormous resources like forest & wild life
resources, agricultural resources (esp. in Assam), mineral resources, hydropower
resources etc. It is notable that India cannot find a good position in world arena of
sports without Manipur.
Certain measures can be taken by the Centre to uplift the North Eastern States:
 Reform in India’s Educational System: Introduction of curriculums that
emphasize tolerance and respect for ethnic and individual diversity in schools
across the country, with a special focus on the history, culture and social
background of the people of north-east India.
 Many northeast people have also sacrificed their lives for the cause of national
defence in every armed conflict the nation has fought. Yet the armed forces of
the nation have sometimes committed gross human rights violations on its own
citizens, leading to extreme suffering and alienation of the people in these states.
The Government of India must not only give promises but must act urgently
and sincerely to restore the lost trust of the North East people in the nation’s
democratic processes.
 The government must introduce strict enforcement of laws against racial
discrimination-monitor, detect, and remedy racial discrimination in education,
employment, housing and all other aspects of society across the country and
also to create a North-East police cell in all major cities manned mostly by
people of North East origin.
 Campaign for anti-racial discrimination messages should be another focus and
to spread awareness about North East region via TV, Radio, Newspapers,
online media and organising north-east cultural events outside the region where
people can invite the locals to come and learn something about Northeast
India. The mainstream media should not only cover news about violence and
insurgency in the North East region but start covering thousands of other stories
that more truly reflect its rich vibrant culture, history and unique landscape.

10
Madhab, Jayanta (1999), “Northeast: Crisis of Identity, Security and
Underdevelopment”, Economic and Political Weekly, Vol. XXXIV, No. 6, February 6,
pp. 320-322.
219
KIIT Journal of Law and Society (Volume -5: No-1)

 The fruits of modern infrastructure & economic development must reach the
North East region. Increased investment must be done in rural development,
infrastructure, education and health care.
Indian citizens of North East India need to be treated by the Union of India as
equal citizens in practice.11 A study of its own discrimination, even now, six decades
after independence, is in order. Only then can the right remedies be adopted, and
only then can the social discrimination suffered by North Easterners living in different
regions of India be fully addressed.

11
Pinto, Ambrose (2000), “Basic Conflict of ‘We’ and ‘They’ between Social and Ethnic
Groups”, in Imtiaz Ahmad, Partha S. Ghosh and Helmut Reifeld (eds.), Pluralism and
Equality: Values in Indian Society and Politics, New Delhi: Sage Publications, pp. 180-
196.
220
CASE COMMENT
Dashrath Rupsingh Rathore: An Unnegotiable Chaos
Shubham Verma*

Legally, socially, commercially, or through any other perspective, 3 judge bench


of Supreme Court in Dashrath Rupsingh Rathore v. State of Maharashtra,1
rendered a completely unexpected and somehow unacceptable precedent. Neither
the law so made, nor its reasoning, stands applaud-able. In myopic view, it looks
like mere hardship upon the claimant; however in the longer run it will adversely
affect the society and the law itself.
A Special Leave Petition was filed before the Supreme Court seeking jurisdiction
for the offence dealt in §138 of the Negotiable Instrument Act, 1881.
The Negotiable Instrument Act, enacted in 1881, was an exclusively civil act
until 1988. However, through an amendment in 1988, §138 to 142 were inserted,
thereby bringing criminal liability into it. Later in 2002 a few more amendments
made this offence more stringent by increasing the punishment because the rate of
cheque dishonour kept increasing.
In K. Bhaskaran v. Sankaran Vaidhyan Balan2, one of the earliest authorities
on §138, it was stated that §138 would be attracted only after the completion of five
acts namely, ‘drawing of a cheque, its presentation to the bank, returning of the
cheque unpaid by the drawee bank, issuance of notice to the drawer for demanding
payment and lastly, failure of the drawer to do so in 15 days time.’ It is also pertinent
to note that the same court held that any place which witnesses any of the
aforementioned acts is capable of being the jurisdiction of the offence.
The said concept of attraction of jurisdiction at any of the aforementioned
places was discarded in the impugned judgment suggesting that the attraction of
jurisdiction is restricted to the place of drawer’s bank only, not elsewhere.
The Supreme Court referred to over a dozen of case laws, a law commission
report, but still arrived at an absurd conclusion with a reasoning that doesn’t stand
valid on the basis of following reasons.
In criminal law, ‘commission’ is different from ‘prosecution’ and these should
not be confused in their importance and application. The legislature never mixed
these two classes of laws and has kept them separate. As mentioned in The Law

* B.A. LLB (Hons.) Student, Dr. Ram Manohar Lohiya National Law University, Lucknow.
1
AIR 2014 SC 3519
2
AIR 1999 SC 3762
221
KIIT Journal of Law and Society (Volume -5: No-1)

Commission Report of 2008, the offence has been defined in §1383, whereas a
procedural aspect has been dealt with in §142.4 The judges in this judgment kept
harping upon the view that the offence dealt in §138 is completed no sooner than
when the cheque is returned by the bank, and the proviso to §138 is just a qualification
for the purpose of prosecution. However, SC failed to establish why the legislature
would intend to insert qualifications for prosecution into a § which deals with the
commission of the offence, instead of inserting them into §142 which is specifically
dealing with procedural aspects.
SC quoted a few statutory provisions like, §19 of the Prevention of Corruption
Act 1988, §19 of the Environmental Protection Act 1986 etc, arguing that the
commission of a crime, prosecution of which is dependent upon the extraneous
contingencies such as obtainment of sanction would not make that sanction the
ingredient or integral part of the offence; and the place where that sanction has been
given would also be of no relevance, as far as jurisdiction is concerned. Further
added, in case where sanction is not granted the offence itself does not vanishes.
Similarly, a court’s jurisdiction would not be affected merely because sanction is
granted at a place other than where the crime has been committed.
The legislature, it appears from all the enactments done till date, has never
tried to mix them up, they have always purported to segregate both. Even in the
examples given by SC, the §§ cited are separated from those §§ which deal with
commission of the offence. Likewise, in the Negotiable Instruments Act, the
legislature have done their task handsomely, as §138 deals with the offence, and
§142 was inserted to deal with procedural aspects.
Every § used as illustration of this principle in this judgment prescribes a
sanction essential to begin the prosecution or for taking cognizance. The error of
SC lies in comparing these illustrations with §142(1) (b). SC ends up comparing
these with §138 which deals specifically with the commission of the offence. The
sanction to take cognizance in the illustrations is analogous with the complaint in
the present case. Whereas, non-payment by the drawer, after the receipt of the
demand, is the final ingredient of the offence prior to which no sanction or complaint
can be filed. Had legislature intended this to be treated as the qualification for
prosecution, they could have easily shifted these provisos to §142 instead of keeping
them in §138.
The whole idea behind the argument is that the extraneous contingencies essential
to begin the prosecution after commission of an offence, should not depend on the
will of the accused. Any prescription otherwise would defeat the law.

3
The Negotiable Instruments Act 1881
4
ibid
222
Case Comment

SC further adverted to a comparison between a civil action and criminal


prosecution. SC stated that in a civil action, plaintiff has the burden of filing and
proving its case; however in criminal prosecution said burden is shifted onto the
state. Therefore, the convenience of the complainant/victim in terms of jurisdiction
is of no relevance whatsoever.
SC avoided the fact that this criminal prosecution cannot commence without
the complaint which is to be made by the complainant/victim only,5 unlike other
typical criminal prosecutions. Perhaps, inconvenient payee/victim who has already
incurred loss after dishonour of cheque would avoid filing a criminal suit, as it may
not be a jurisdiction near to its location. This would severely defeat the law, which
in the longer run may adversely affect the culture of cheque, thereby affecting the
society also. Therefore, it’s not the convenience of the claimant but the law and the
interest of society itself which is at stake.
CrPC6 defines offence, as any act or offence punishable by any law for the
time being in force. Now, nothing can punish the drawer on mere dishonour of the
cheque, no sanction, nor any complaint can be filed upon it, until the additional
failure to make the payment within 15 days of receipt of demand of the payment
happens. Therefore, mere dishonour of cheque can’t be called as offence for it is not
punishable, but the failure under provisos of §138 make that punishable.
SC also acclaimed that the ratio of K. Bhaskaran, if followed, would lead to
injustice as making multiple jurisdictions of the offence, further making the law
ambiguous and nebulous. Eyeing the probable complexities of a crime, legislature
kept a liberal approach while drafting the procedure7, so that substantive law may
apply comfortably and shall not fail just because of a rigid procedure.
It’s been a long journey of law, since times immemorial till now, and law has
always been introduced to bring order in chaos. It is a journey with no destination;
therefore every milestone shall be treated as an achievement with certain objectives
to fulfil till we reach another. No matter how much fatigue we’ll have to move with,
we shall not forget the basics with which we have started the journey. The essential
need of the society was the substantive laws, then to enforce those substantive laws
- justifiably, with minimum chaos and certainty, the need of procedural law arose.
Substantive law is the need of the society whereas procedural law is the need of the
substantive law. This is why, procedural law shall be more liberal and open to
discretion of the judges than the substantive law, because legislature never intended
procedural law to trump substantive law.

5
The Negotiable Instruments Act 1881, §142
6
The Code of Criminal Procedure 1973, §2(n)
7
The Code of Criminal Procedure 1973, §§178-183
223
KIIT Journal of Law and Society (Volume -5: No-1)

The legislature in §138 never purported to put absolute liability upon the drawer,
and therefore they added an additional ingredient to the § for it to be labelled criminal,
but unfortunately SC took it as a separate part and not as a part of commission. As
far as qualification for procedure is concerned, it is the complaint by and only by
the payee which has to be made to the appropriate jurisdiction with the help of §142
and §§177-179 of CrPC for prosecution.
The culture of cheque has been affected a lot; the trust with which people are
used to accepting a cheque has been steadily diminishing. A negotiable instrument,
in this case cheque, was used as a replacement for paper currency, and this was all
based upon trust. Just like the trust, the culture of cheques is in danger and it can
only be safeguarded by making a law not only stringent but easily enforceable as
well. The legislature and the Judiciary need to look at the law sincerely, keeping the
society and related problems in mind, so as to avert an unnegotiable chaos.

224
BOOK REVIEW
LAW AND SOCIAL CHANGE1
Sharyn L. Roach Anleu, 2nd Edition, SAGE Publications Ltd. 2010

Sharyn L Roach Anleu, the author of this book is generally dealing with the
inter relationship between sociology and law and he has shown how law has taken
steps for social change. The sociology of law was not an established sub discipline,
but the sociology was conscious of the law just as a social institution and law was
conscious of social conditions in which it operates, but there was always an
interaction between the two disciplines. Now this has been changed. Relationships
between law and non-legal forms of social control and the dispute processing and
the role of law in every-day life. This book has also given the attention on the role
of law in the legislation and judiciary decisions in social changing. This book also
provides a sociological examination of law, surveys, current theoretical debates
and examines the socio-legal research. There is also discussion about the role of
law in globalization and the law in the international sphere. This book contains the
meaning of law, law in classical theory, contemporary social theory and law, the
legal profession, dispute resolution, social control, feminism and legal reform, rights
and citizenship.
The first chapter of the book discusses about the meaning of law and introduces
some legal concepts. It says that law has been the social phenomenon and has been
of the interest of sociology from the early days of the discipline. The legal practitioners
and the legal theorists focuses mainly on the effects of social factors in the time of
judicial decision making in resolving and deciding practical, everyday dilemmas. It
gives the idea that legal regulations and judicials statements are made depending on
the aspect of social life. It also gives the view of social change to describe the
transformation like industrialization, or shift from rural agrarian, feudal or traditional
societies to modern societies.
The theorists of various schools like classical school and contemporary school
have explored the relationships between law and social change. The second chapter
and third chapter are discussing the views of the theorists about the social change.
The formative sociological theorists were mainly concerned with the social change
and the implications of law. The theories of Durkheim, Marx, Welber influenced
the development of the contemporary theories. Contemporary legal theories grapple

1
Book Review by Aindrila Bag and Shashwata Satyanurakta Sahoo, LL.M (2014-2015),
KIIT School of Law, KIIT
225
KIIT Journal of Law and Society (Volume -5: No-1)

with problems of subjectivity – the role of legal actors, the constitution of law in
everyday-life and the distinctiveness of law as a form of social control and regulation.
In the fourth chapter the author of the book discusses the legal profession. He
says that law is one of the original professions. There are two broad theoretical
approaches to the professions within sociology. The ‘trait model’ focusses on
identifying the key attributes of professional occupations, on the other hand ‘market
approaches’ view professions as emerging from the successful monopolization of
skills, resources and clients.
Social life is well fed with discrepancies, complications, inconveniences,
atrocities, conflicts, etc. Not all of these become elucidated as disputes and extremely
few become defined as legal disputes. Chapter 5 inscriptions the social practices
involved in the exposure, recognition, organizing of disputes. Processes and social
arrangements aligned to the settlement of disputes incorporate adjudication,
mediation, conciliation and negotiation. It scrutinizes the abstraction of dispute,
then conceptions litigation and Alternative Dispute Resolution (ADR) estimates as
neighbourhood justice or community legal centres, family conciliation or mediation
centres and administrative tribunals. After these criticism of ADR also there in this
chapter. The motion towards informalism is also an indicator for the settlement of
dispute. Then anthropological research, extension of state control, the research
through general indicators like participants, satisfaction, voluntariness, mediator,
consensus, etc are there.
Social control is the regulation of individual and group behaviour in an attempt
to gain conformity and compliance to the rules of a given society, state or group.
Chapter 6 inspects the connection between legal and non-legal social control, and
emphasis basically upon the Criminal Justice System. It deals with many kinds of
criminal laws which takes place in the society, reasons for the occurrences of plea
bargaining, the central themes such as administrative capacity, substantive justice,
strength of the prosecution case, organizational relationship in the criminal justice
system. It also deals with the sentence discounts, sentencing, deterrence,
rehabilitation, incapacitation, punishment, restoration and reparation processes. The
role of the judge in the sentencing process, guidelines and commissions of sentencing,
mandatory or mandatory minimum sentences, truth in sentencing process, specialist
courts, criminal punishment, crime prevention and management are also there under
this chapter.
Feminism is not about making women stronger. It’s about changing the way
the world identifies that strength. Chapter 7 deals with the promoting awareness in
the matter of employment discrimination, sex discrimination laws, sexual harassment,
rape, domestic violence, pornography and reproductive autonomy, etc with

226
Book Review

necessitate perspectives which improves new government policies, structural


improvements and the revision of laws that lively sustain gender equality and the
procedures really assumed.
Chapter 8 inspects current indications on the concept of citizenship and related
rights between sociologists. There are common perspectives that citizenship is more
inclusive than other notions as gender and race. Race and citizenship emphasizes
upon 3 contexts such as: (i) Institutionalized racism, (ii) Hate crimes, (iii) Migration
issues. It also deals with the views of T.H. Marshall and his 3 elements relating to
the concept of citizenship such as: civil, political and social, and also general criticism
towards his concept takes place. It also deals with the concept of new social
movements and human rights in relationship with right disclosure. It also concern
about globalization and the rise of international law in the form of conventions and
treaties that constrain the practices of nation states, citizenship in Europe and the
role of law in the process of transition.
The concluding chapter of this book dispenses a sociological resemble to law
and social change. It also dispenses the interconnections between law and social
changes by censoriously scrutinizing contemporary evolutions in the interdisciplinary
field of socio-legal theory merged with analyses of empirical and comparative case
studies. For many concurrent social and political motions legal institutions and
doctrine are significant ways for social reforms. Two major zones of law and legal
actions are dispute resolution and social control and both are considered in referral
to global, national and local changes and challenges. The final section of this chapter
bestow an overview of some remarkable matters concerning socio-legal research.
Law is an energetic and adaptable and continually subject to contestation and alter,
it is in everlasting motion. The role of law in social environments or activism impact
on the emergence of legislation and enactment of legal directives are empirical
questions compliant to social science exploration.
The book belied some of our expectations of concentrating upon the illustration
of case laws regarding the law and social change in different countries or comparison
between them. Had it been so the book would have been a complete one.

227
KIIT Journal of Law and Society (Volume -5: No-1)

BOOK REVIEW
Mooting and Advocacy Skills1
By David Pope and Dan Hill (Authors)
Second Edition
Publisher: Sweet & Maxwell
First South Asian Edition 2014
Pages – 188 pages.

Introduction
The book has three parts divided into fifteen chapters and an appendices section
in the end. The introduction chapter written by David Pope gives the - ‘What?’,
‘Why?’, and ‘Where?’ - Of Mooting. It defines the important terms related to mooting
and apprises us of the purposes of the various factors and players concerned with
mooting. Here the author points out that most of the Commonwealth countries
follow a common format for mooting. At the end of the introduction he also discusses
the future of mooting in Britain.
This Chapter Consist of 6 section
This 1st section of the chapter deals with the Preparation part what is a MOOT
PROBLEM? This section illustrates with the help of a civil case (Cecil v Dickens)
and goes on to explain how to read and analyze a moot problem. The breaking
down of a moot problem has been impressively done by the author, e.g. Identity of
Parties, background facts, procedural history, lower court findings and grounds of
appeal etc.
The next section of the chapter deals with the Moot problem it helps students
to understand the basic concept of the mooting. Mooting is an art, and for the
perfection of this art one needs essential skill-sets which will make ones arguments
stronger and more impressive. The author has clearly mentioned methods to identify
the problems - how to read the moot problem, how to find the facts of the case,
which party to represent with the hierarchy of the courts. Now what exactly happens
when the students prepare for the first time for a moot is that they get confused with
facts of the case and how to form a proper memorial. But this book contains all the
things required for the beginner to know the steps which he or she must take before
and during preparation for the moot. It motivates the student to discuss the case
more and more with their team mates so that more and more new ideas and fact can
be found and formed and finally this leads to attain clarity with the moot-problem.
1
Pushparaj Bharadwaj & Amit Sarkar, LLM – KIIT School of Law.
228
Book Review

After the reader get the basic ideas how they should start .The next section deals
with Research techniques. The most important duty of the researcher is to do legal
research on the moot problem. After getting the proper facts of the case and finding
the key issues involved in the case, the researcher of the whole mooting team has to
exhaustively research on the legal issues. This book contains all the particulars
which a researcher and his teammates have to focus on. For added assistance the
authors have divided the steps of the research in phases: Phase 1 is about
understanding the legal context, Phase 2 is about conducting detailed research,
Phase 3 is about finalizing the arguments, and finally Phase 4 is about refuting
opponents’ cases. These phases help the students or the readers understand the
chronology of the steps for a proper research. There are a number of tables or
charts which gives details about the connection between the various steps. The
authors have also pointed out the common mistakes and the examples which can be
helpful in rectifying such mistakes. The book also lists the various sources which
the researcher needs to research and puts forth more authenticated methods of
conducting the research.
After the research work is completed the next step is to Structure the Argument.
This section of the book deals with the structure of the argument. The next important
step to Mooting and its preparation are the structure of the argument or skeleton of
the argument. The word ‘skeleton’ itself gives a short idea about what the authors
are dealing with; the authors by choosing the words carefully tries to enhance the
preciseness of the step which are to be taken by the students while preparing for the
moot. It clearly lays down the contents of the memorial like headings, patterns of
writing the name example name of the court, identity of the parties etc. It gives
details about how a memorial paper should be written, and it constantly alerts the
reader about common mistakes, and the points which should be taken care of while
making the memorial.
About the use of notes, the author in section 5 of the chapter tries to point out
the things which might be helpful for beginners in order to boost up their confidence,
help them to impress the judge, and assist them in explaining the case and put their
views clearly across to the judge. It also includes techniques which must be used by
the participant for proper use of notes. Using short forms and abbreviations with
example also help the readers and students understand the tricks of proper mooting
by appropriately by using notes.
It is very necessary during the oral submission that they should contain proper
authority from which the submission is referred. In this book the author has rightly
pointed out the ways through which the oral submission can be made proper and

229
KIIT Journal of Law and Society (Volume -5: No-1)

authenticated. After reading the steps and methods one can get a clear picture as to
in what way the proper oral submission can be presented. This book clearly states
all the points required for a beginner and also for professional career as a pleader.
The author has also added sequential and point-wise explanation of the all the
important steps which helps the reader grasp the concept clearly.
In the last chapter of the preparation of the moot the authors justified that the
phrase ‘practice makes a man perfect’ and this perfection can only be gained by the
participants if they practice their lines and be clear about the facts of the cases and
revise them as many times they can, so that they don’t fumble or forget the points
and can explain the points properly and clearly. The authors have shown the ways
through which the oral submission can be made more attractive and impressive.
The benefit of the practice and its implication, and the tricks to impress the judge
are also explained in very enthusiastic manner which makes the reading of the text
quite enjoyable. The author has also tried to explain the specific methods in which
the learner should practice, and these small minor details help a reader immensely
for the proper preparation of a moot, especially for the students who are mooting
for the first time.
In whole this chapter relates to the preparation of the moot, the authors have
tried to make things as simple as possible, so that a person who is not acquainted to
moots and its preparation can easily prepare and appear before the judge. The most
attractive thing which I found in this preparatory chapter is the point wise and
exemplary language used by the authors to make a comfortable reading possible.
Appearing
Written by David Pope again, this Part deals with Preliminaries (things necessary
for the moot and layout of a moot court), moot court etiquette (dress, manners, and
forms of address), oral submissions (length and order of speeches, arguments, legal
speaking conventions and replies), judicial interventions (defining judicial
intervention in the context of mooting, preparation, answering judicial intervention
etc.) and finally the delivery (importance, developing effectiveness and coping with
nerves).
Organizing
This part has been written by Dan Hill and explains how to go about organizing
moots, from drafting rules to eligibility considerations for participants and judges.
It goes on to lay down clearly how to select and write moot problems and concludes
with a very interesting chapter on ‘Original Moot Problems’ from six areas of law
– contracts, criminal, equity and trusts, land law and finally torts/delict.

230
Book Review

Appendices
Appendix I gives specimen mooting competition rules.
Appendix II gives a specimen judges score sheet.
Appendix III gives sample text for freshers’ fair brochure.
Appendix IV gives judge’s guidance note.
These samples and specimen save considerable time and effort for any organizer
of mooting events in colleges.
Critical Appreciation
If students or reader peruse and memorize the lessons taught in this book, they
can expect to have a better chance of excelling at mooting and advocacy. In
comparison to other books relating to mooting and advocacy, this book has superior
clarity regarding how and in what way a student of law can step into the world of
advocacy and steps necessary to improve his skills of mooting.
This book is going to be invaluable to every law student and aspiring advocate.
It is clear, precise, well written and very comprehensively deals with the subject of
mooting and all related aspects. Perhaps the only drawback this book has, or a
criticism that can be raised, is that - it is entirely based on the legal system of United
Kingdom. Though much of South Asian legal system is based on the English Legal
System, as already pointed out by the authors, yet one must also realise that with
passing decades the evolutions of the various legal systems have diverged quite a
bit. Thus it would indeed be more useful to a South Asian reader if the book also
included a few South Asian legal cases in its illustrations. This labour on the part of
the authors would go a long way in illuminating the contrasts and comparisons that
can be pointed out in the systems of law now prevailing in UK and South Asian
Countries. It would also greatly increase the value of the book in the eyes of an
eager and grateful South Asian readership. This is a small limitation but beyond
that, this book is a must-read for all who desire to be thoroughly prepared and
capable lawyers in the future.

231
KIIT Journal of Law and Society (Volume -5: No-1)

BOOK REVIEW
CHILD MALTREATMENT: AN INTRODUCTION1
Book Detail:
Name of the book: Child Maltreatment: An Introduction, Edition-3
Authors: Cindy L. Miller-Perrin, Robin D. Perrin
Publisher: United States of America, Sage Publications, Inc., 451pp.
ISBN 978-1-4522-0579-3 (pbk.)

The book Child Maltreatment: An Introduction is a significant research work


by social scientists Cindy L. Miller-Perrin and Robin D. Perrin which serves us in
our ongoing attempts to discover and understand the grave issue of maltreatment of
children. Author Cindy L. Miller-Perrin is a Professor of Psychology and Blanche
E. Seaver Professor of Social Science at Pepperdine University in Malibu, California.
The co-author of this book Robin D. Perrin is a Sociology Professor at the same
University. This book draws relevant literature in ample amount to project the
magnitude, causes and ramifications of child maltreatment and explores the various
socio-legal responses to it.
The book consists of the 10 chapters, starting with the History and Definitions
of Child Maltreatment; then gradually covering varied topics viz. the study of Child
Maltreatment Theoretical and Methodological issue, Child Physical Abuse, Child
Sexual Abuse, Child Neglect, Child Psychological Maltreatment, Additional Forms
of Child Maltreatment, Key Issues in Responding to Child Maltreatment,
Controversial Issues in the study of Child Maltreatment and finally, What can you
do to help.
In the first chapter itself, the authors eradicate some common myths about
child maltreatment such as the misconception that the greatest risks to children lie
outside the home or that minor acts of maltreatment such as corporal punishment
are trivial and acceptable. The authors point out that according to U.S. Department
of Health and Human Services, parents are the perpetrators in approximately 80%
of substantiated cases of child abuse. Through illustrations they have divided Parent-
Child abuse into four categories such as expressive, instrumental, legitimate and
illegitimate. In the next chapter, to illustrate the problems inherent in estimating the
extent of this issue they have designed a metaphorical funnel which operates on
various levels such as actual cases reported, cases reported by mandatory reporters,

1
Authors: Abhipsha Hota, LLM, KIIT School of Law & Shantashree Mohanty, LLM,
KIIT School of Law
232
Book Review

referrals by Child protective services, substantiated cases and ultimately giving


way to state mandated services, arrests and convictions.
In chapters 3, 4, 5 and 6, the authors have exclusively dealt with the 4 broad
forms of child maltreatment viz. physical abuse, sexual abuse, child neglect and
psychological abuse. The authors have shown the complexity in defining Child
Physical Abuse (CPA) by providing the wide range of behaviours which may or
may not constitute CPA. Coming to Child Sexual Abuse, through various reported
cases the authors establish what kind of acts are culturally defined as inappropriate
and illegal sexually, be it paedophilia, child pornography, prostitution or sex rings
and in what circumstances do sexual interactions become abusive. In the 5th chapter,
the authors have discussed various forms of child neglect because no single definition
is universally accepted. Some prevention and intervention strategies have been also
discussed here and more emphasis has been given to research evaluation for bringing
effectiveness in the prevention of this vulnerable form of child abuse. In the chapter
about child psychological maltreatment the authors talk about a series of acts such
as rejecting, degrading, terrorising, isolating, confining etc. as subtypes of child
maltreatment and also explain their long term and short term effects on children’s
emotional functioning, behavioural problems, social competence, etc.
In chapter 7 the authors have discussed the various additional forms of child
maltreatment such as community violence, sibling abuse, school violence & bullying,
child abuse in protective institutions, human trafficking of children and lastly Intimate
Partner Violence (IPV) existing between their parents. In the following chapter the
authors have basically discussed about the child welfare programmes which can be
initiated against child maltreatment & how individuals who commit the child abuse
can be penalised.
In chapter 9 which is about key issues in responding to Child maltreatment, the
authors address relevant issues such as out-of home Placement Dilemma i.e. whether
or not to remove the child from his home. They raise concerns over inappropriate
interview forensic techniques involving child abuse victims, conduct towards such
victims in court proceedings and need for a global and cross-cultural approach
against it. In the concluding chapter the authors have discussed about what we all
can do to help the victims of child abuse and how to stop it? The authors have well
summed up the various methods for prevention such as prenatal education, home
visitation & respite care.
It’s a fact that, merely enacting laws is not the way to combat the evil of child
maltreatment. We need to learn from the multi-disciplinary and multi-level approach
adopted in American society towards combatting this evil such a proactive Child

233
KIIT Journal of Law and Society (Volume -5: No-1)

Protective Services, mandatory reporting policies, high conviction rates, family


support and training programs, school-based programs, coordinated community
responses, awareness campaigns, treatment of offenders etc. The books gives us an
exhaustive idea about the nature, kind, extent and causes of child maltreatment and
what kind of challenges face us in fighting it. The authors raise the issue of need for
multi-cultural sensitivity in addressing the problem of child maltreatment. This can
also seen as the limitation of the scope of this book. The book only focusses on
child maltreatment prevailing in American society. The indigenous problems with
respect to child abuse as found in India such as practice of female foeticide, genital
mutilation, witchcraft /black magic on children, child marriage, poverty & substance
abuse, bonded labour, parental bullying and ragging in schools/colleges etc. To
sum up, the book can be a quintessential tool in our quest for understanding the
byzantine themes and psychology underlying the evil of child maltreatment. The
vast literature review and unique take of the authors can be handy research tools.
However, the book is limited to western society specifically the United States and is
not all-encompassing with regard to the kinds of abuses that prevailing in rest of the
world.

234
BOOK REVIEW
Community Policing: Misnomer or fact?, Veerendra Mishra, ISBN: 978-81-
321-0727-9 (HB), Sage Publication India Pvt. Ltd., 2011
This book is an excellent contribution on community policing with special reference
to India by the author who is an Assistant Inspector General of Police, Madhya Pradesh.
Community policing as a philosophy within law enforcement has been dealt with
immensely all over the globe though not so much in India. The ice-berg of trust between
community and police has not melted as yet. This concept uprights involvement of
commoners in policing activities. The drawback of this concept lies in its effective
implementation. One can owe this to either the inadequate organizational set up or the
lack of community repose on police. The author sets out certain solutions to such problems
by analysing the conceptual variances and factors that impede smooth relation between
the community and police.
The book comprises of ten chapters with five case studies spread over 240 pages
and in a very lucid language which is common and easily accessible to the masses.
The first and the second chapters connote an introductory note and the inherent
philosophies of community policing. The author has attempted to clarify the cause and
effect of community policing. The author has been wise enough to use layman’s terms
to elucidate the concept of community policing and harps on the proactive attitude of
the police in preventing crime along with removing the fear from the minds regarding
crimes which are committed. The concept uprights involvement of commoners in policing
activities. The author has dealt with four schools of thought to define different perceptions
and applications to the concept of policing.
The most appealing part of the third chapter is that the author has drawn the
relationship between the four P’s in a self-explanatory diagram. The author introduces
the term ‘Politoxication’ which means getting overawed by and intoxicated to the
political power. The author has been candid in laying down the issues which the police
normally face at the hands of partisans. The author talks about ‘opinion journalism’,
the role played by media in shaping the image of police in the society. It is interesting to
find that the author has studied the mind-set of public minutely. He has said that the
common people are sceptical in dealing with policemen.
The fourth chapter has raised a valid question as to what extent can the words
‘police’ and ‘participation’ go together. There is a gap in the intention and the
implementation of such concept. The chapter emphasises police as an organization, a
system, the hierarchy of the police in India. The author has been in close association
with the system this has enabled him to showcase certain internal issues like
communication gaps within the organization as well as in-between police and community.
The following chapter deals with the police culture and the day to day stress the police

1
Deblina Majumder and Samrat Datta, LLM(2014) KIIT School of Law
235
KIIT Journal of Law and Society (Volume -5: No-1)

officers undergo which contribute to a lot of physical and psychological damage. The
next chapter enumerates about the various factors which have hampered the community
participative activities. It emphasizes how the image of the police prevents community
participation and also highlights the other hindrances to community policing. A
suggestion regarding the improvement of policing by emphasizing on the three E’s of
Police Management, that is, education, enforcement and engineering or development.
The seventh chapter enumerates the pros and cons of being in the police service
such as long working hours, low paybacks, emotional detachment, and political pressures.
Other than the hindrances during the service, the police also face hazards in the training
although the efforts are being made to improve it in the recent decades.
The following three chapters incorporates the hindrances, benefits of participative
policing and the changes to be brought about in the attitude of the police. These factors
include the nature and attitude of policemen, that is, cynical, aggressive, and vindictive
and lust for money. The benefits include assisting normal policing, gathering information,
and participation of all in the police service, encouraging the concept of team work,
recognizing the potential of an individual and helping in building a constructive social
balance and working together hand in hand for the betterment of the society. All these
constraints if catered to will build in a high amount of confidence in the public who will
then act hand in hand with the police to punish the criminals and also to eradicate the
society of the necessary evils.
The book also includes five case studies which enumerates instances where
participative policing has yielded good results. The first one deals with the challenges
in the rioting in Narsinghgarh, Madhya Pradesh and also illustrated its aftermath and it
had proved to be a great success due to the idea of participative policing. The second
deals with how Partners in the Policing Model (PIP) had played its role in envisaging
community policing in the country of Timor – Leste. The third one connotes the success
story in Madhya Pradesh in dealing with Violence against Women (VAW) cases. The
fourth case study connotes the success in the Domestic Violence Redressal Forum in
East Timor of Timor Leste. The concluding chapter recommends the major factor
responsible for the growth of community policing and its future in the global scenario.
Community policing is a widely acknowledged and accepted phenomena worldwide.
The author has discussed the concept, the underlying philosophies, the strengths and
the hindrances associated with the concept of community policing. The author is clear
about the fact that if the police work in tandem with the community then it will reduce
burden and be an added incentive towards reduction of crime rate in any society.
However, it is important to note that the target audience of the book is police,
criminologists and researchers on police science.The drawbacks or the area where the
author has failed to leave a mark include the proper propagation of community policing
and at the same time while harping on the various aspects of community policing, the
author has failed to make a comparative analysis with the other countries and has
confined himself only to India and South East Asia.

236