Leakage of Electronic Medical Record - Threat To Privacy

Legal Messenger
Volume 3 | Issue 1 | ISSN-2456-110X 1
LEAKAGE OF ELECTRONIC MEDICAL RECORD – A

THREAT TO PRIVACY
Kavin Chandhar 1
Nandhini.R
Introduction:
Data privacy, also called as information privacy, is the aspect of information

technology that deals with the ability an organization or individual has to
determine what data in a computer system can be shared with third parties.2
It is the right to have control over how one’s personal information is collected
and used. With fast growing technological innovation, information privacy is
being complex as more data is being collected and exchanged.3
The concept of data security and data privacy are strongly related but they are
obviously different. Data Privacy is the right of an individual to determine for
themselves when, how and to what extent information about them is shared
or transferred to others, while data security on the other hand defines the
extent to which personal information access is restricted only to authorized
personnel4. Both privacy and security of data is mandatory in medical field.
Medical privacy is the practice of maintaining the security and confidentiality

of patient records.5 Patient’s medical record contains facts, findings and
observation about patient’s health history that are shared among health care
professionals and non-clinicians to provide continuity of care. The records
1
Students, B.A., LL. B. (Hons.) 3rd year, School Of Excellence in Law, TNDALU.
2
Data privacy (information privacy), searchcio.techtarget.com( Jan. 2, 2018, 7.08 pm),
http://searchcio.techtarget.com/definition/data-privacy-information-privacy
3
What does privacy mean? , iapp.org ( Jan 2, 2018, 8.10 pm), https://iapp.org/about/what-is-
privacy/
4
Adebayo Otomosho, A criticism of the current security, privacy and accountability issues
in Electronic Health Records, arxiv.org (Jan 2, 2018, 8.40 pm),
https://arxiv.org/ftp/arxiv/papers/1501/1501.07865.pdf
5
Medical Privacy, en.wikipedia.org (Jan 3, 2018, 9.48 am),
https://en.wikipedia.org/wiki/Medical_privacy
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help in making accurate diagnosis of patient’s conditions and in tracing the

course of treatment.6
For decades, health care providers and organizations have relied on paper
medical charts to document a patient’s history, diagnostics and treatment. But
the paper based medical record proved to be inefficient in many aspects such
as storage, costs and it is exposed to risk of being lost. This made the health
care provider and organization to shift towards electronic medical record. It
is a digital version of the traditional paper based medical record for an
individual.7
Computerized information helps diagnose disease, organize research data and

monitor patient conditions.8 Though it has several benefits this technological
innovation has huge ramification for our privacy.9 Most patients do not
realize how much personal health information is exposed in vast electronic
network.10 Major demerit in computer – generated patient health record is the
threat to patient confidentiality.11 Globally, the medical industry is extremely
susceptible to data breaches. The Office of Civil Rights under the US
Department of Health and Human Services estimated that in 2015 alone, over
100 million records were breached, with most cases being linked to IT crimes
and hacking. Hospitals in India are increasingly using EMRs as the preferred
method of storing patient information.12 Since we started to use electronic
6
CYNTHIA NEWBY, CPC, HIPAA FOR ALLIED HEALTH CAREERS 29 (Dave
Garza,2009)
7
Electronic Medical Record (EMR), whatis.techtarget.com, (Jan 3, 2018, 10.15 am),
http://whatis.techtarget.com/definition/electronic-medical-record-EMR
8
JANICE L. KAZMIER, HEALTH CARE LAW 164 ( Shelley Esposito & Larrymain, 1st
edition, 2009)
9
Medical privacy, www.eff.org (Jan 3, 2018, 11.25 am), https://www.eff.org/issues/medical-
privacy
10
Supra note 7
11
RONALD W. SCOTT, LEGAL ASPECTS OF DOCUMENTING PATIENT CARE FOR
REHABILITATION PROFESSIONALS 145( 3rd edition, Jones and Barlett publishers,
2006)
12
Akhil Deo, Without Data Security and Privacy Laws, Medical Records in India Are Highly
Vulnerable, thewire.in
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medical records, healthcare data security became one of the most important
aspects of data protection.13Leakage in electronic medical record is a
violation of patient’s privacy which would be a very critical issue.
Considering the extremely sensitive nature of medical information, the
government must make a clear law to deal with the protection of electronic
medical record from leakage.
Electronic Medical Record (EMR):
Definition:
An Electronic Medical Record is a collection of health information that

provides immediate electronic access by authorized users.14 It is a digital
version of the traditional paper based medical record for an individual.15
EU defined electronic medical record systems as a comprehensive medical

record or similar documentation of the past and present physical and mental
state of health of an individual in electronic form, and providing for ready
availability of these data for medical treatment and other closely related
purposes.16
Need for EMR:
Paper records are cumbersome to store, are not readily transportable, may
contain illegible entries, lack select clinical service line documents or may be
simply unavailable because of simultaneous provider use. Lost or misplaced
(Jan 3, 2018, 12.15 am), https://thewire.in/102349/without-data-security-and-privacy-laws-

medical-records-in-india-are-highly-vulnerable/
13
Maxim Oliynyk, Why is healthcare data security so important? , www.protectimus.com
(Jan 3, 2018, 1.15 am), https://www.protectimus.com/blog/why-is-healthcare-data-security-
so-important/
14
Supra note 5
15
Supra note 6
16
Overview of the national laws on Electronic Health Records in the EU member states and
their interaction with the provisions of the cross-border e-health services, ec.europa.eu (Jan
3, 2018, 7.58 am),
https://ec.europa.eu/health//sites/health/files/ehealth/docs/laws_report_recommendations_e
n.pdf
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documents also characterize paper-based systems and according to one study,

paper charts may be missing up to twenty five percent of the time when they
are clinically needed.17 The fragmented, disorganized and inaccessible health
information adversely affects the quality of health care and patient’s safety
and that an EMR system can form basis for improved quality and
safety.18This made the healthcare provider and organization to shift towards
Electronic Medical Record.
As the health industry moves towards adoption of EMRs, the question arises
as to what information an EMR should contain. A comprehensive
consideration of what should constitute a medical record can be found in the
practice brief of the American Health Information Management Association
(AHIMA). The EMR provides a repository of patient encounters, problem
lists, clinical notes, procedures, test results and helps alleviate tedious and
labor intensive filling and retrieval inefficiencies associated with paper-based
records.19
Benefits of EMR:
EMR system are expected to ease the process of sharing health information
among health care providers which in turn improve quality of health care
delivery. EMR promises monolithic benefits in terms of saving cost by
digitizing and centrally providing medical data. They serve as the repository
for valuable health information which is an asset to the health care provider.
Other advantages includes immediate access to health information, clinical
decision support , automated alerts and reminders, electronic communication
17
Development of electronic medical record charting for hospital-based transfusion and
apheresis medicine services: Early adoption perspectives, www.ncbi.nlm.nih.gov (Jan 3,
2018, 9.56 am), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2929543/
18
Institute of medicine, key capabilities of electronic health record system (institute of
medicine, 2003), 2.
19
WILLIAM H. ROACH, JR., ROBERT G. HOBAN, BERNADETTE M. BROCCOLO,
ANDREW B. ROTH, TIMOTHY P. BLANCHARD, MEDICAL RECORDS AND THE
LAW, 441 (Kylah McNeil, 4th edition, 2006)
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and connectivity, administration and reporting, error reduction , supports

patients through computerized physician order management that is physicians
can enter orders for prescriptions, tests, and other services at any time , along
with the patient’s diagnosis.20
Preservation of EMR:
Maintenance of medical records assume significant importance in view of the

fact that an electronic health record of a person is an aggregation of all
electronic medical records of the person from the very first entry till date.
Hence, all records must compulsorily be preserved and not destroyed during
the life-time of the person, ever.
Upon the demise of the patient where there are no court cases pending, the
records can be removed from active status and turned to inactive status. ISVs
are free to decide when to make a record inactive, however, it is preferable to
follow the “three (3) year rule” where all records of a deceased are made
inactive three (3) years after death.
With rapid decline in costs of data archiving coupled with the ability to store
increasing amounts of data that may be readily accessible, continued
maintenance of such data is not expected to lead to any major impact on the
overall system maintenance and use.21
Issues related to EMR:
Electronic Medical Record consists of very sensitive health information of

the patients. It is the duty of the health care organization to value the privacy
of patients when using their medical record for improving the quality of
health care services. The Electronic Medical Record has existed for well over
20
Supra note 3
21
Electronic Health Record standards for India, mohfw.gov.in (Jan 3, 2018, 7.56 pm),
https://mohfw.gov.in/sites/default/files/17739294021483341357.pdf
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a decade and is expanding increasingly in the health care settings. 22 Though

EMR has various benefits privacy issue is the most common concern. Though
privacy can no longer be a consideration in any type of medical records, the
health care industry must consider reasonable rules of confidentiality.
Electronic records have all the confidentiality concerns of their paper
counterparts and the added concern of preserving the integrity of the record
and preventing unauthorized remote access to the information.23 In the first
week of December, it was reported that the electronic medical records (EMR)
of over 35,000 patients held by a Maharashtra-based pathology lab were
leaked, pointing to the lack of availability of adequate safeguards for
protecting such sensitive information.24 Such instances are increasing in
today’s world which insist the need for efficient laws to protect EMR from
leakage. Leakage of EMR affects the patient’s confidentiality. This restricts
the individuals from disclosing their religion, sexual orientation, HIV/AIDS
diagnosis and treatment, reproductive health, substance abuse, mental health,
genetic conditions and sexual assault if revealed may lead to irreversible
personal embarrassment. An insecure EMR system will definitely result in
endangering patient health care and inadequate quality of health service.25
This shows the significance of secured, elaborate and accessible EMR in the
healthcare services.
International Legislations:
The Health Insurance Portability and Accountability Act (HIPAA):
The Health Insurance Portability and Accountability Act (HIPAA) is a

comprehensive set of healthcare provisions enacted by the United States
Congress and subsequently signed into law by President Bill Clinton in 1996
22
Supra note 18
23
ELSEVIER MOSBY, LEGAL MEDICINE 352 (Rolla Couchman & Agnes Byrne, 7th
edition 2007)
24
Supra note 11
25
Supra note 3
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effectively mandating broad-based legislation regarding healthcare access,

portability, renewability, along with security and privacy rules for electronic
health records and related information.26
Prior to HIPAA, no generally accepted set of security standards or general

requirements for protecting health information existed in the health care
industry. At the same time, new technologies were evolving, and the health
care industry began to move away from paper processes and rely more heavily
on the use of electronic information systems to pay claims, answer eligibility
questions, provide health information and conduct a host of other
administrative and clinically based functions.
The Health Insurance Portability and Accountability Act of 1996 (HIPAA)

required the Secretary of the U.S. Department of Health and Human Services
(HHS) to develop regulations protecting the privacy and security of certain
health information.1 To fulfill this requirement, HHS published what are
commonly known as the HIPAA Privacy Rule and the HIPAA Security Rule.
The Privacy Rule, or Standards for Privacy of Individually Identifiable Health
Information, establishes national standards for the protection of certain health
information. The Security Standards for the Protection of Electronic
Protected Health Information (the Security Rule) establish a national set of
security standards for protecting certain health information that is held or
transferred in electronic form.27
Within Title II of HIPAA, the main emphasis has been that of the "Privacy
Rule" and the "Security Rule", two (2) critically important legislative
mandates that established, for the first time, a set of national standards for the
protection of certain health information (the "Privacy Rule") along with
26
Overview of HIPAA, http://hipaapoliciesandprocedures.com (Jan 4, 2018, 9.44 am),
http://hipaapoliciesandprocedures.com/hipaa-overview
27
Summary of the HIPAA security rule, www.hhs.gov (Jan 4, 2018, 9.56 am),
https://www.hhs.gov/hipaa/for-professionals/security/laws-regulations/index.html
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establishing a national set of security standards (the “Security Rule”) for

protecting certain health information that is held or transferred in electronic
form.28
Security rule:
The Security Rule defines “confidentiality” to mean that e-PHI is not

available or disclosed to unauthorized persons. The Security Rule's
confidentiality requirements support the Privacy Rule's prohibitions against
improper uses and disclosures of PHI. The Security rule also promotes the
two additional goals of maintaining the integrity and availability of e-PHI.
Under the Security Rule, “integrity” means that e-PHI is not altered or
destroyed in an unauthorized manner. “Availability” means that e-PHI is
accessible and usable on demand by an authorized person.
HHS recognizes that covered entities range from the smallest provider to the
largest, multi-state health plan. Therefore the Security Rule is flexible and
scalable to allow covered entities to analyze their own needs and implement
solutions appropriate for their specific environments. What is appropriate for
a particular covered entity will depend on the nature of the covered entity’s
business, as well as the covered entity’s size and resources.29
Privacy rule:
With the enactment of HIPAA and the promulgation of the federal HIPAA
privacy regulations (Privacy Rule), a comprehensive federal health
information privacy protection scheme came into being. Certain provisions
of the privacy rule present special concerns for the development of EHR
systems, such as HDNs, and other shared information arrangements. Most
users of interoperable EHRs are HIPAA covered entities, and therefore most
28
Supra note 25
29
Supra note 26
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participants in EHR systems, such as HDNs and other information sharing

arrangements, are subject to the Privacy Rule. Their use and disclosure of
electronic Protected Health Information (ePHI) is subject to the requirements
of HIPAA and the Privacy Rule. Thus participants in an HDN may not use or
disclose ePHI in their HDN without the authorization of the patient, unless
the use or disclosure is otherwise expressly permitted by the Privacy Rule.30
The HIPAA Privacy Rule required covered entities to
 Have a set of privacy policies and procedures that are appropriate for its
healthcare services
 Notify patients about their privacy rights and how their information can
be used or disclosed
 Train employees so that they understand the practices
 Appoint a privacy official responsible for seeing that the privacy policies
and procedures are implemented and
 Safeguard patient’s records31
European Union -General Data Protection Regulation (GDPR)
There have been significant developments in European Union (EU) data

protection law recently that will have an impact on health care. The General
Data Protection Regulation (GDPR) was adopted by the European Parliament
on March 12, 2014 and comes into full effect on May 25, 2018. The GDPR
introduces protection for data subjects that aim for consistency across the
EU.32
30
Supra note 18
31
Supra note 5
32
Effect of the General Data Protection Regulation on Medical Research,
www.ncbi.nlm.nih.gov ( Jan 6, 2018, 3.45 pm),
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5346164/
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Features of GDPR:
“Data can only be processed if that data is “adequate, relevant and limited to
what is necessary for the purpose for which they are processed.”
 There is a limited time for which data can be stored. This has been called
the “right to be forgotten.”
 Personal data shall be protected from unauthorized access, illegal
processing and loss.
The medical industry may be one of the industries hit the hardest by the
GDPR. Hospitals, clinics, dentist offices, and any other institution that deals
in health, whether physical or mental, must comply with the following things.
Right to erasure (Right to be forgotten)
The right to be forgotten means that companies must implement technology

that is able to totally and completely erase any and all personal data that they
process about a person upon request. Such technology must also be
implemented by any companies contracted by other firms that process data
for them and/or receive such personal data from them for any reason. This is
especially true when a withdrawal of consent to processing is submitted.
Furthermore, withdrawals of consent may not be made difficult under GDPR
guidelines.33
33
EU’s General Data Protection Regulation set to disrupt the medical industry,
www.healthitoutcomes.com ( Jan 7,2018, 8.45 am),
https://www.healthitoutcomes.com/doc/eu-s-general-data-protection-regulation-set-disrupt-
medical-industry-0001
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Informed consent criteria:
The GDPR increases the risk related to a consent based business model
considerably by imposing additional and onerous requirements with respect
to informed consent. Medical devices manufacturers will need to spend
considerably more attention on their consent processes and the way their
phrase their privacy policies, because there is a requirement to provide
intelligible consent language and to affirm obtain by affirmative action.
Especially companies that consider their consent processes and policy a
formality will likely run into problems under the consent requirements in the
GDPR.34
Tougher security requirements to protect patient data:
There was global panic as evil individuals use what is called “ransomware”
to target not only private citizens (such as Mac users) but also hospitals and
other institutions that are treasure troves of personal data. But what made
hospitals such prime targets is the very fact that life and death are at stake
here, not just some financial information in someone's computer.
This means that the GDPR requires the implementation of appropriate,

pseudonymization, encryption, redundancy, regular penetration tests and
intrusion detection measures, and implementing a continuous process for
evaluating the effectiveness of the measures implemented.35
34
The new General Data Protection Regulation impact on medical devices industry,
medicaldeviceslegal.com (Jan 7,2018, 9.45 am),
https:medicaldeviceslegal.com/2016/05/29/the-new-general-data-protection-regulation-
impact-on-medical-devices-industry/
35
Supra note 32
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Indian legislations
Information Technology (IT) Act, 2000
Electronic Medical Record involves a constant exchange of information

between the patient and the service provider. The patient’s personal
information such as medical history and physiological conditions are
considered as Sensitive Personal Data (SPD) under the IT Rules, 2011.36
Section 43(a) and section 72 of the Information Technology Act provides

broad framework for the protection of personal information in India. Rule 6,
7 and 8 of IT Rules, describes disclosure, transfer and security requirements
in handling Sensitive Personal Data (SPD)37.
Section 43(a) along with the Sensitive Data Protection Rules lays down the
compliances that need to be observed by an entity that collects, stores or
otherwise deals with sensitive information such as passwords, financial
information, health conditions, sexual orientation, medical records and
biometric records. The Rules stipulate that a body corporate collecting such
sensitive personal data shall obtain written consent from the provider of said
data. It mandates corporate to take reasonable procedures to protect sensitive
personal data or information and it is pertinent to note that section 43(a)
applies only to a ‘body corporate’, defined as “a firm, sole proprietorship or
other association of individuals engaged in commercial or professional
36
E-health in India, http://www.nishithdesai.com (Jan 4,2018, 3.45 pm),
http://www.nishithdesai.com/fileadmin/user_upload/pdfs/Research%20Papers/e-Health-in-
India.pdf
37
Nimisha Srinivas & Arpita Biswas, protecting patient information in India: Data privacy
laws and its challenges, docs.manupatra.in (Jan 4,2018, 3.55 pm),
http://docs.manupatra.in/newsline/articles/Upload/B3C7F081-838F-489F-9F77-
AF1E209C26F8.pdf
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activities”. Section 72 generally deals with protection of personal information

from unlawful disclosure in a breach of contract.38
The framework for data protection offered by the IT Rules does not provide
an exhaustive list of the permitted purposes for which SPD may be used.
Further, the wide powers of data collection that have been vested in the State,
which are constrained only by a ‘communication of purpose’ requirement,
may result in situations akin to the leaks39. The Central Government, in
consultation with State Governments and other stakeholders, need to
formulate and announce a National Health IT (HIT) policy which will result
in better use of IT in the healthcare delivery40 .
Indian Medical Council (Professional conduct, Etiquette and Ethics)

Regulations, 2002 – Code of ethics
The MCI Code lays down professional and ethical standards of interaction
of doctors with patients41. It regulates the nature and extent of doctor-patient
confidentiality and imposes mandatory obligation to doctors to protect
patient’s privacy42.
According to this code, doctors must maintain medical records pertaining to

patients for a period of 3 years from commencement of treatment and such
records must be available to patients, authorised attendants and legal
authorities upon their request. Doctors are also required to make efforts to
computerise such records, so that they can be retrieved quickly. A Doctor
38
Supra note 11
39
Supra note 36
40
Adoption of EMR- A road map for India, www.ncbi.nlm.nih.gov (Jan 4,2018, 1.55 pm),
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5116537/
41
Supra note 35
42
Privacy in India: policy guide, cis-india.org (Jan 4,2018, 1.34 pm), https://cis-
india.org/internet-governance/blog/privacy-in-healthcare-policy-guide
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disclosing personal information about his or her patients could be held guilty
of professional misconduct, this obligation does not extend to other persons
responsible for processing patient data43. The MCI Code of Ethics does
provide the confidences entrusted by patients to doctors which must not be
revealed, unless required by law or in public interest44.
Clinical Establishments Act, 2010
The rules for Clinical Establishments (Registration and Regulation) Act 2010,
which were notified on 23rd May 2012, included maintenance of Electronic
Medical Records for every patient for registration and continuation of every
clinical establishment45. This power to make rules was conferred to Central
Government under section 52 of Clinical Establishments Act46. However, this
act profoundly aims at registration of private health care facilities like
hospitals, only doctor foundations, medical laboratories and diagnostic
centres47.
EMR Standards, 2013
In September 2013, the Ministry of Health and Family Welfare notified

Electronic Medical Records standards for India48 to introduce a uniform
43
Supra note 36
44
Smitha Krishna Prasad, digitization of medical record – is the law keeping up,
www.legallyindia.com (Jan 4,2018, 1.24 pm),
https://www.legallyindia.com/views/entry/digitisation-of-health-medical-records-is-the-
law-keeping-up
45
Health records system in India, www.swaniti.com (Jan 4,2018, 1.34 pm),
http://www.swaniti.com/wp-content/uploads/2016/02/Health-records-system-in-India.pdf
46
Ministry of health and family welfare, http://clinicalestablishments.nic.in (Jan 4,2018, 1.18
pm), http://clinicalestablishments.nic.in/WriteReadData/386.pdf
47
Clinical Establishments Act India | Regulatory & Policy Framework for Hospitals and
Clinical Establishments in India, www.dr-hempel-network.com (Jan 7, 2018, 10.40 am),
https://www.dr-hempel-network.com/health-policies-in-india/clinical-establishments-in-
india/
48
Digitizing health records in India, www.dailypioneer.com (Jan 7, 2018, 11.48 am),
http://www.dailypioneer.com/columnists/oped/digitising-health-records-in-india.html
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standard based system for creation and maintenance of EMRs by healthcare

providers49. This document lays down the international technical,
administrative and physical standards for data protection with respect to
electronic health records50.
With passage of time, EMR standards 2013 have been duly revised in line
with contemporary developments in consultation with stakeholders.
Accordingly, EMR standards 2016 document is notified and placed for
adoption in IT systems by healthcare institutions and providers across the
country51. These standards provide a structured overview of the key EMR
standards with respect to the country's healthcare system along with detailed
recommendation on the interoperability and standards, clinical informatics
standards, data ownership, privacy and security aspects, and the various
coding systems52.
However, these standards have not been made mandatory and State
Governments have only been advised to adopt EMR standards in their
healthcare systems. Some of the shortcomings with the EMR
standards include an unclear scope of coverage, lack of clearly defined
timelines for accessing patient records, the failure to include unique
identification information such as URLs and IP addresses as sensitive
information and an ambiguity in defining the scope of ‘personal health
information.’53
New Bill on Healthcare Data Privacy and Security
49
Health ministry notifies EHR standards, www.ptinews.com (Jan 7, 2018, 11.48 am),
http://www.ptinews.com/news/8247078_Health-ministry-notifies-EHR-standards-
2016.html
50
Supra note 11
51
Ministry of health and family welfare e-section, mohfw.gov.in (Jan 7, 2018, 11.24 am),
https://mohfw.gov.in/sites/default/files/17739294021483341357.pdf
52
Supra note 47
53
Supra note 11
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The sector specific law on Data privacy and security is tentatively called
Health Care Data Privacy and Security Act (HDPSA), considered to be a
comprehensive legal framework for protection of individual health data and
its standardization.54 One of the aims of the proposed HDPSA would be to set
up an e-health Authority of India which will act as a “Nodal Authority”
responsible for development of integrated Health Information System in the
country. The authority will be controlling all stakeholders including health
care providers, consumers, industries and policy makers and would be one of
the most powerful regulatory authorities in India.55 EMR plays a vital role in
the development of healthcare services. Leaking of large scale health data,
apart from impinging on the privacy of patients, is a real threat because such
data is in great demand, especially in the pharmaceutical industry.56The need
for laws governing such records is mandatory as unauthorized release of
patient information is increasing day-by-day. The new bill should focus on
patient’s confidentiality, increase the responsibility of healthcare
organization to protect medical record of individuals, create public awareness
on medical data theft and on their rights to access medical records and make
stringent rules in protecting Electronic Medical Records from leakage.
Conclusion
Development in technology which led to the digitization in medical field, is

a positive sign. EMR is the result of the growth in technology. Earlier, laws
governed paper based medical records, but it would not be suitable for the
computerized one which is used in contemporary world. The laws dealing
with it should grow along with the technological innovation. The
54
In a first health department plans privacy law to guard patients’ data, indianexpress.com
(Jan 5,2018,10.27 am), http://indianexpress.com/article/india/india-news-india/in-a-first-
health-department-plans-privacy-law-to-guard-patients-data-3060711/
55
Healthcare data privacy and security act, hdpsa.in (Jan 5,2018,3.45 pm),
http://hdpsa.in/wp/eha/
56
Supra note 53
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computerized data has many positive aspects and it will definitely improve in
the quality of health care services. The only issue with the EMR is the
protection of data. Though access to EMR from any part of the world is a
major benefit, it also leads to the alarming issue of data theft. Healthcare
organizations and providers must have access to patient data in order to
deliver quality care, but complying with regulations and requirements for
protecting patient health information requires a combination of robust
security strategies as well as the appropriate security solutions and sufficient
IT resources to implement them. Security solutions commonly used in the
healthcare industry includes access control, data loss prevention, encryption,
secure file sharing tools, and network security solutions such as firewalls and
antivirus software. Because of their ability to discover, classify, and protect
sensitive information, data loss prevention tools are widely deployed in
healthcare organizations to monitor, classify, and protect ePHI.57 Laws made
should govern the privacy issues of patients as leakage of EMR affects the
patient confidentiality. HIPAA in USA and General Data Protection
Regulation (GDPR) in Europe deals particularly with medical data security
and privacy. In India, MCI Code and Clinical Establishments Act spoke about
privacy in medical field. EMR standards 2013 specifically dealt with the
maintenance of electronic records and its protection. With the proper data
protection strategies and solutions in place, healthcare organizations and
providers can share data securely, both inside and outside the organization,
manage privileged users, and comply with monitoring and reporting
regulations.58 Thus, if patient’s confidentiality is met and the leakage of
57
Nate Lard, Healthcare security: understanding HIPAA compliance and its role in patient
data protection, digitalguardian.com (Jan 5, 2018, 2.37 pm),
https://digitalguardian.com/blog/healthcare-security-understanding-hipaa-compliance-and-
its-role-patient-data-protection
58
Supra note 56
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medical record is prevented, computerized data is a boon to the healthcare

and adoption EMR will be a great success.
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IMPACT OF MEDIA AND INTERNET ON CHILDREN

Nitisha Dhariwal 1
Introduction
A prologue
In the modern world information and communication technology plays an
important role. It is an integral part of child education and well being of the
people born in the digital age. Through these technologies one get to knows what
is trending in the world. These are a great source of creating an interactive and
developing society.
But as everyone are aware of the fact that every coin has two sides. The same
goes for the information and communication technology. Media and internet is
not free from disadvantages. The rapid expansion of social media and
information technology give rise to various kinds of offences such as sexual
exploitation and abuse, cyber crime.
In this context, the impact of media and internet on children is profound. For the
study of the present topic the child means the person who is below or of 18 years.
Children who are of tender ages were not aware of the fact what is good for them
and ultimately do such things which lead to violation of the law. In today’s time,
children have more knowledge about media and internet than their parents which
leads to higher level of sexual abuse against them as they don’t know the act
which they were doing is good or not. That’s why it is necessary for the law
enforcement agencies to make laws regarding these problems and made reforms
in existing laws.
1
BB.A. LL. B. (Hons.) 2nd year, Indore Institute of law.
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Thus this research paper mainly focuses on the impact of media and internet on
children. This piece of paper talks about the offences committed against the child
and by the child due to the influence of information and communication
technology. Also about how these problems can be solved and also what laws are
made at a national and international level to overcome such problems.
Objective of research
The objective of the research is to explore harmful effects of media on children’s
mental and physical health as well as to know about the crimes committed against
children through internet. The aim of the research is to learn about different type
of crimes such as cyber bullying, stalking, grooming, sexting which are
committed against children with the help of information and communication
technology and what are the legal provisions which are made to solve these
problems. The idea is to be aware of the steps which parents can take to protect
their child from crimes committed through online sources.
Research methodology
The researcher has undertaken the study of both primary and secondary sources.
Primary sources consist of different laws and acts such as Information
Technology Act 2000, Protection Of Children from Sexual Offences Act 2012.
The data used in the researcher paper has been collected from online sources,
newspapers, magazines, journals, books, etc.
Research questions
 Do crime shows and video games have any impact on influencing child’s
behavior?
 Are crime shows like savdhan india, crime patrol make child violent and
aggressive?
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 Is internet is one of the sources through which a crime can be committed

against a child?
 What are the laws made to protect the child from online exploitation?
 What are the limitations of laws made to protect the children?
 What can parents do to protect their child from ill effects of media and
internet?
Chapters outline
The study is divided into 4 chapters.
CHAPTER-1 It talks about different sources of media and internet which

influence child behavior and help in committing a crime against children.
CHAPTER-2 It talks about the crimes which are committed against child through
internet and crimes which are committed by the child due to the influence of
crime shows.
CHAPTER-3 It talks about the laws which are made at a national and
international level to solve these problems.
CHAPTER-4 It talks about the steps which parents can take to protect their child.
It gives an analysis of project and recommendations.
Sources of media and internet which influence child behavior and crimes
committed against a child
Since the early 1960s, the research in the field of media violence has shown that
exposure to violence in television, movies, video games, advertisement increases
the risk of violent behavior on children’s part2. Today due to vast development
2
Impact of media use on children and youth, Paediatr Child Health (last visited 15 June 2018,
7:30a.m.) https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2704015
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in the mass media and communication technology crimes are also increasing.
Mainly the victims of such technology are children as they are not aware of what
is right or wrong for them. Children do anything which they find exciting and
different. The sources which have a profound impact on child behavior and
crimes committed against a child are as follows-
Television shows
Television is a great invention in the field of mass communication which involves
both audio and video clips moving together. The television shows related to
crime such as savdhan india, crime patrol, CID, gumarah are causing a negative
impact on children’s mind. These crime shows are over dramatized so that they
can create an impact on viewers mind. The makers of these shows use punchy
lines and strong sound effects so that audience gets horrified. Possibly they are
doing this for creating awareness among individuals but ultimately it gives rise
to crimes as children are trying to committing the same things and even these
shows give the new ideas for committing offences. These serials shows the real
crime scene which show case violence, fraud practices, rapes, murders and the
impact of the same is that children are adopting the same techniques to deal with
the problems in real life. Children are indulging in committing the same violence
which leads to aggressive behavior on their part.
There was a story of fifteen- year- old boy named Shubham Shirke of Pune who
was kidnapped and murdered by three teenagers. After that assailants made a
demand of Rs 50,000 from boy’s father for giving him their child. During the
investigation, it was found that the teenagers made a plan for kidnapping after
watching a television show, CID, which deals with crime stories3. This story
3
Should TV serial based on crime stories be banned?, Times Of India (last visited 15 June 2018,
8:00a.m.) https://timesofindia.indiatimes.com/home/speak-out/debateshow/12543617.cms
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clearly shows the impact which these shows are creating in the mind of
children’s. Through this kind of TV shows child get mentally affected and often
trying to apply the same kind of acts.
Video games
In today’s era, children spend their lot of time playing video games. Excessive
use of video games often leads to violent behavior on child’s part because in
video games like vice city, IGI, WWE the one can see how much violence and
aggression the persons can go through. Excessive killing, aggressive behavior in
the video games often have harmful effects on child mental development and the
effect of that is child become so violent and aggressive in the real world.
Advertisement
In selling any product advertisement of the product in television or newspaper
plays an important role because people will buy products of that brand which
they found more attractive. Children found advertisement attractive. They did not
have the ability to understand that these are the selling techniques of the seller.
They tend to believe what they saw in advertisement and want the same.
Advertisement of cigarette, alcohol, fatty foods, tobacco creates great influence
on children’s mind and they demand the same. When parents deny, they went out
and purchase such products by themselves.
Internet
The modern world is all about the internet. A report had suggested that almost
134 million Indian children were using the internet in 2017 as compared to 39.5
million in 2012.4 This indicates that children are using the internet at very tender
4
30% of Indian School Kids In Some States Faced Cyber Crime, BUSINESS STANDARD (last
visited 15 June 2018, 11:30 a.m.) http://www.business-standard.com/article/pti-stories/30-of-
indian-school-kids-insome-states-faced-cyber-crime-114111000294_1.html
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age and often become victims of crimes such as hacking, scam mail, bullying,
and fraud. The most common sites on the internet are youtube, twitter and
facebook are the main sources of child exploitation. Easily available porns on
youtube, hacking of facebook accounts are the main source of child’s sexual
exploitation. Through internet, many different types of crimes are committed
against children. The use of social networking sites at tender age is the main
reason for the growth of such offences.
Crimes committed by and against children in influence of media and

internet
Media and internet play a recognizable in the crimes committed against children
and by children. Children who are of tender age and did not understand anything
often commit such crimes which they found interesting in video games and in
serials. The impact of media on the children can be classified in two ways-
 Crimes committed against children

 Crimes committed by children
Crimes committed against children

Ongoing technological development in the field of internet and media give rise
to new threats against a child. Cyber Crime against children’s through different
forms is increasing day by day. The National Crime Records Bureau (NCRB)
recorded almost 1540 cases of online child abuse in the year 2013 to 2015. Also,
3% of a child called child helpline number in 2015 regarding the problem of child
abuse through online sources.5 Child sexual exploitation and abuse are increasing
continuously through these online sources.
5
Introduction, Child victims of Cyber Crime (last visited 9:10 P.M.)
http://ncpcr.gov.in/showfile.php?lang=1&level=1&sublinkid=1297&lid=1519
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 Child pornography
There is no legal definition in India of child pornography but one can define it as
children who are engaging in doing sexual activities. This pornography can be
served to adult as well as children through the internet with the help of a
computer, phones. The children are enticed and many a time even forced to
engage in doing sexual activities and then such documentaries are distributed for
commercial purposes. The child sexual abuse means that pictures, messages, text,
videos of a child involving in some kind of sexual or physical activity or images
of body parts of children also referred to child pornography. But in recent time
some organization stopped calling it as child pornography because child’s
consent does not involve in such kind of abuses. There was a case related to child
pornography in which cyber wing of Chennai arrested an employee who by
mistake shared child porn pictures in the whatsapp group which is made for office
members. He was arrested under the provisions of section 67, 67-A, 67-B of
ITA.6 The effect of such an act on a child is that he became de-sensitized and
often develops a high level of sexual instincts.
 Online grooming
Online grooming is also a recent abuse which is committed against a child. In
online grooming, an adult befriends or influence a young person so that it
facilitates online sexual contract or physical meeting for committing sexual
abuse. In this form people usually build child trust on themselves so that they can
make child porns. In online grooming person influence the child in such way that
6
Chennai Police Arrest Man for Sharing Child Porn Pictures in Office WhatsApp Group, THE
TIMES OF INDIA ( last visited 15 June 2018, 9:00p.m.),
http://timesofindia.indiatimes.com/india/Chennai-police
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child is ready to send them their nude pictures, even get ready to meet for doing
physical contract and the person sexually exploits the child.7
 Child trafficking
Child trafficking is also become easy due to development in information and
communication technology. Child trafficking means transportation, transfer of
child by way of selling for money. This is the worst kind of child sexual
exploitation. Through social media, it is easy to connect with anyone and to hatch
information from them. Today many sites offering jobs, also dating sites,
advertisement becomes a great source of child trafficking. These sites provide
false information to influence child and child become the victim of same. Also,
child trafficking involves full planning, recruiting which can be done through this
networks.
 Sexting
Sexting is the recent phenomenon of online sexual abuse. Sexting means
transferring through texts and images of things related to sexual contract and
forwarding, exchanging the text and images even nude pictures to other people
through mobile phone, social media8. Through this form of sexual abuse often a
child goes into depression or even committed suicide because the child feel
ashamed and society did not accept such type of thing. There was a story of a boy
who committed suicide because of his friend who uploads a video on social
7
Online grooming, The impact of new media and internet on children (last visited 15 June 2018,
8:00p.m.) http://www.uncrcpc.org/assets/images/The-impact-of-internet-and-new-media-on-
the-occurrence-of-violence-against-children-in-Europe-and-in-Cyprus_final-draft.pdf
8
Supra 6, pg no. 23
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networking site of his compromising situation with his sibling.9 This is a clear
example of how sexting becoming a great source of sexual abuse.
 Cheating
Cheating means to defraud or deceiving a child in such a way so that it causes
him/her loss, injured reputation, affects mental health. This is also a crime under
Indian Penal Code (IPC) because in cheating a person does such an act for
deceiving a child which is not permissible under law or should not otherwise be
done.
 Cyberstalking
The use of social media is increasing day by day. It is easy to find anyone on
social media by simply typing their names. These also give rise to a new type of
crime known as cyberstalking. In cyberstalking, people usually stalk or harass a
child. A child is said to be cyber-stalked when he continuously followed or
watched by an individual or group of an individual for a long period of time
through any online sources. This kind of person makes the life of child difficult
as they always post a comment on any picture which is uploaded and even sends
messages on a regular basis.
 Cyber bullying
Cyber bullying means harassing, trolling or spreading rumors about a child online
through social media which lowered his/her reputation in the society. In this form
person usually through unwanted and repeated words, images harass a child and
distribute it to other people.
9
Cyberbulling and India, CAMPUS DIARIES (last visited 15 June 2018, 8:30 p.m.),
https://campusdiaries.com/stories/cyberbulling-and-india
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 Hacking
Hacking is the most common type of crime which is committed against children.
In hacking, a person fraudulently or without any authority access the computer,
phone, social media accounts of children’s to steal, destroy and distribute the data
store in it. It is also done to spread viruses in computer systems.
Crimes committed by children

Children spend their lot of time watching television shows and playing games.
Video games and crime shows create a negative impact on the minds of children
and influence their behavior. Crime shows such as savdhan india, crime patrol
often influence the child in such a way that they try to perform the same things
that they have seen. Increasing addiction to crime shows and video games make
child aggressive and violent. Children are influenced by crime shows in such a
way that they thing the real world is also the same and to get rid of the problems
they have to do same act. There are some cases in which a child kidnap a person,
or use drugs, stole something, murder someone in the same way as he/she saw
on crime shows. Even by seeing movies in which sexual content was present they
feel attracted towards it especially boys and to do same things they commit
heinous crimes such as rape without knowing their consequences. The violence
which they see on television shows, video games, movies makes them violent
and aggressive. They become so much arrogant and aggressive that if someone
tells them anything to do or talk with them on any topic they become violent and
go upon fighting. They thought that peace is good for nothing violence is the best
option to solve any problem.
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Laws and policies framed to solve the crimes related with media and
internet
International legal framework
 United Nations Convention On Rights Of Child (1989)

Convention on rights of child was adopted by United Nations in the general
assembly. It is also known as Magna Carta of rights of the child because it laid
down broad rules for the protection of child rights worldwide. It laid down broad
principles to protect the child from online sexual abuse. For instance, Article 19
of convention talks about legislative, administrative, social measures which state
has to take to protect the child from physical and mental violence which include
child abuse. Child abuse has to be interpreted broadly which contain all the forms
of exploitation including cyber crimes. Article 34 of the convention says that
children should be protected from all type of sexual exploitation and abuse.
Provisions of Article 34 also include protection of children from the
pornographic performance. The committee for rights of child keeps watch on all
kinds of abuses and exploitation which includes bullying, grooming of children
online.
 Optional Protocol on CRC on Sale of Children, Child Prostitution and

Child Pornography (2002)
This optional protocol is adopted in 2002 to strengthen the provisions of CRC. It
is the first universal treaty which specifically deals with the child pornography.
Article 2 of the protocol defines child pornography as any sexual representation
of child’s body part. Article 3 (1) says that state must criminalize all the activities
related to child pornography including its distribution, and making.
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 Cyber Crime Convention of the Council of Europe (2001)

It is the first treaty which deals with the crimes committed through the internet
and other networks which includes crimes like child pornography. This
convention was made to achieve the international cooperation to solve crimes
committed through the internet.
Legislation in India
Different kinds of legislation have been enacted in India to reduce the crimes
committed via internet and other networks to protect children. The important
legislation which has been enacted to solve problems related to internet and
media are as follows-
 Protection of Children from Sexual Offences Act (2012)

This act deals with the sexual offences committed with the children below 18
years of age. The act was enforced on 14th November 2012. It contains various
provisions of law to criminalize the activities like hacking, child pornography
which is committed via internet.
Section 13 of the act prohibits the use of a child for pornographic material. If a
person commits the same at the first instance he will convict for five years and
fine, and in subsequent conviction, he will punish for seven years and a fine.10
Also, if any person stored any pornography in which child is involved for
commercial purpose shall be punished for three years and a fine11.
In a case of Manaf V.B. V. State of Kerala,12 the accused was charged with the
offence of creating a website which contains pornographic material related to
10
Section 14(1),THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT,
2012, child protection 31072012.pdf (last visited 16 June 2018, 8:30a.m.),
http://wcd.nic.in/sites/default/files/childprotection31072012.pdf
11
Ibid at section 15
12
Bail Appl. No. 1769 of 2016.
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children. The accused did not get bail as he was found punishable under section
13 and 14 of the act for creating a website related to child pornography.
Section 11 of the act is related to cyberstalking, grooming. In this section, it was

stated that whenever any person monitors, keep watch on activities of any person
or induces any child with the intention to sexually harass a child falls under the
purview of this action. Section 12 of the act lays down 3 years of punishment and
fine for the person who falls under the purview of section 11.
 Goa Children’s Act (2003)

In India state legislation of Goa was the first act which deals comprehensively
with the laws to protect the children. This act made by state legislature
criminalize all type of child abuse and laid down punishment for sexual assault,
grave sexual assault and commercial sexual exploitation in any form of children.
As defined in section 7(9) grave sexual assault means forcing child for doing any
sexual act which causes injury to the sexual organ of children. Commercial
sexual exploitation means making videos of child sexual parts or performing any
sexual activity of children with the intention of earning money by distributing it
to others.
 Indian Penal Code (1860)

The IPC contains all the type of crimes. It is a criminal code of India. It contains
various provisions relating to punishment for crimes committed against children
through online sources.
Section 354A prescribed punishment for three years if someone without

permission of a girl child shows any kind of pornography. Section 354D contains
a specific provision relating to stalking. It prescribed conviction for three years
and fine at first instance and at the subsequent repetition of offence conviction
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for five years and fine. Section 366(A) deals with procuring a minor girl or a girl
child under the 18 years of age for performing sexual activity. Whosoever
procure a girl without her parent’s consent shall be liable for punishment of
imprisonment which may extend to ten years and fine.
 Information Technology Act (2000)

The first and foremost source relating to cyber laws is Information Technology
Act. It is considered as a primary source. It contains all the provisions for
punishment regarding crimes committed through online sources. Section 67B of
the IT Act provides for the punishment to the people who publicize and distribute
the matter relating to sexual acts of the child through online sources. 13 It also
prohibits sending images, texts in which there is any sexually explicit material
13
The Information Technology Act, 2000, No. 21 of 2000, INDIA CODE (last visited 16 June
2018, 10:00p.m.) , http://indiacode.nic.in, Section 67B (Whoever,-
publishes or transmits or causes to be published or transmitted material in any electronic form
which depicts children engaged in sexually explicit act or conduct or
creates text or digital images, collects, seeks, browses, downloads, advertises, promotes,
exchanges or distributes material in any electronic form depicting children in obscene or indecent
or sexually explicit manner or
cultivates, entices or induces children to online relationship with one or more children for and on
sexually explicit act or in a manner that may offend a reasonable adult on the computer resource
or
facilitates abusing children online or
records in any electronic form own abuse or that of others pertaining to sexually explicit act with
children, shall be punished on first conviction with imprisonment of either description for a term
which may extend to five years and with a fine which may extend to ten lakh rupees and in the
event of second or subsequent conviction with imprisonment of either description for a term
which may extend to seven years and also with fine which may extend to ten lakh rupees:
Provided that the provisions of section 67, section 67A and this section does not extend to any
book, pamphlet, paper, writing, drawing, painting, representation or figure in electronic form-
The publication of which is proved to be justified as being for the public good on the ground that
such book, pamphlet, paper writing, drawing, painting, representation or figure is in the interest
of science, literature, art or learning or other objects of general concern; or
which is kept or used for bona fide heritage or religious purposes
Explanation - For the purposes of this section, "children" means a person who has not completed
the age of 18 years).
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related to child through online sources. Section 66E of the act criminalizes the
action of capturing a picture of any sexual part of a child without his consent.
Limitations of laws and policies

The main issue which comes in between due to which of these laws is not
working effectively is because there is no uniform terminology of online abuse
and exploitation which leads to different conclusions by different people. The
difference of opinion relating to the meaning of terms gives rise to confusions.
The Terminology Guidelines for the Protection of Children from Sexual Abuses
and Exploitation is an important step taken by the working group to solve this
problem. Many activities which were criminalized in other countries were not
considered an offence in India like sexting. To solve this problem it is necessary
that children must be educated so that they can understand the crimes happening
through electronic sources and how to protect themselves from such crimes.
Also, in India, there were no guidelines for enforcement of these laws which
give rise to conflicting interpretations of the provisions of law relating to the
safety of children.
Conclusion and recommendations
The review of the paper was that media violence has a great impact on the child’s
behavior. Most children have faced some form of media violence whether
through criminal shows, news channel or video games which create a negative
impact on the mind of a child. Some studies which have conducted clearly proofs
that the violence which children have seen on television affects his mental and
physical growth. The criminal shows and violent video games which child watch
makes child aggressive and violent.
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This problem can only be solved when parents would see watch their child is
watching. Before purchasing any video games parents must review it, check its
ratings, ask other parents about the content of video games. Some television
shows contain such content which must not be watched by children, parents can
restrict the access of such shows on their television.
Also, the increasing use of internet creates many other problems like bullying,
sexting. The use of technology in India gave rise to various other crimes which
become the great reason of concern for the safety of children. Children were not
aware of this type of crimes and often become the victims. To solve this problem
many laws have been made but no law is working effectively due to the absence
of guidelines for enforcing the legal provisions. No knowledge of such crimes
among children and parents also makes it difficult to implement provisions of
laws.
The analysis of the project was that there was a great influence of media and
internet in committing the crimes against a child. To solve this problem many
laws were made at national and international level. The important among them
are Protection of Children from Sexual Offences Act 2012 which deals with all
forms of sexual offences against child and Information Technology Act 2000
which addresses all forms of cybercrime against children.
The making of law does not solve the problem relating to cyber space and media.
The problem can only be solved when children's and their parents are aware of
the offences committed through these technologies. For that, it is necessary that
the knowledge of such crimes must be given to children and teachers, parents
must be aware of these new technologies. The child behavior must be
continuously watched by their parents. Parents have to keep watch on the shows
which the child has been watching and watch his online activities. It is necessary
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to build awareness among the society relating to such kind of offences and
parents have to play an important role in protecting their children from online
abuses. Also, it is necessary to review the existing legislation relating to cyber
crime and make reforms in that.
Even though various things have done to solve these problems but time to time
new challenges are also arising which children have to face. It becomes necessary
to introduce such changes in technology so that children can use electronic
sources without any threat.
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MIMICING WOMEN AS GODDESSES AND SPURNING THEM RIGHT

TO WORSHIP
Kashish Saxena 1
A country where women are worshipped as Goddess but they are entry bound to
those worshipping places, isn’t it an irony? Every person is allowed to go to
heaven in his own way. Worshipping God should be according to the dictates of
one’s own conscience.2 Right to worship is a matter of personal faith which binds
a man with cosmos, his creator or superpower, which he believes, regulates the
existence of living beings and the forces of the universe. 3 Restricting women
from entering the temples or its sanctum sanctorum is none other than the pure
examples of the dogmatic beliefs and supremacy of male chauvinism. Male
chauvinism? Yes rightly, it is the non sensical ideologies of the males that if the
women would enter those highly purified places of worship, then those places
would become impure and would require purification. A recent example is when
a women stepped into the sanctum sanctorum of the Shani Shingnapur temple,
Ahmednagar violating the 400 years old rule of keeping the women away from
it. She was highly criticized by the villagers and the crowd. The reason for their
criticism was none other than the dogma of the age old practice of resticting
women’s entry into that area irrespective of the protections and safeguards
provided to women in sphere of equality in all areas of life. The time has come
to bind up these age old illogical regulations of the society. The primary step to
be taken for aggrandising the condition of women in India is to firstly secure
them equal opportunity to enter places of worship.
1
B.A.LL.B.(Hons.)/ 4th year.Institution- Law College Dehradun / Uttaranchal University.
2
Downes v. Bidwell, 244 U.S. 182 (1901).
3
A.S. Narayan v. State of Andhra Pradesh, A.I.R. 1996 S.C. 1765 (India).
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Places of worship ‘temples’ that denies entry to women-
 Shani Shingnapur Temple, Ahmednagar, Maharashtra

 Trimbakeshwar Temple, Nashik, Maharashtra
 Ranakpur Temple, Rajasthan
 Lord Kartikeya Temple, Pushkar
 Sabarimala Temple, Kerala
 Sree Padmanabhaswamy Temple, Malayinkeezhu, Kerala
 Kamakhya Devi Temple, Guwahati, Assam
 Patbausi Satra, Barpeta, Assam
● Mawali Mata Mandir, Dhamtari, Chattisgarh

● Mangal Chandi Temple, Bokaro, Jharkhand
Philosophy behind Restricting Women’s Entry-
The reasons behind barring the women’s entry to the temples are anonymous and
are here mentioned as enshrined by the myths or the folk ballad. These are as
enumerated:-
Patbausi Satra, Assam-
Concentrated in Assam, the satras are the Vaishnavite centres where the
Ekasarana traditions are propagated and upheld. Instituted by the 15th century
Saint theorist Srimata Sankardeva,there imposed the law of not allowing women,
till the year 2010 women were banned from entering this temple to preserve its
‘purity’. This temple also cites menstruation as the reason behind barring the
women. In 2010, Assam Governor J.B. Patnaik, who visiting the Patbausi,
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Saundaridiya, and Barpeta satras spoke with the authorities of the Patbausi Satra
and took a group of 20 women in. Following this, the satra was open to women
before the rule was re-imposed.
Lord Kartikeya Temple, Pushkar-
Lord Kartikeya is the son of Lord Shiva and considered the ‘God of War’. In this
temple the ‘Brahmachari’ form of Lord Kartikeya is worshipped. The structure
is very old and dates back to 5th century B.C. There is a myth that the Lord curses
women who enters the temple . As a result, women are banned from entering the
temple. There are another temples in Pehowa, Haryana that celebrates
Kartikeya’s Brahamachari form and like the temple at Pushkar, women are not
allowed in the temple.
Ranakpur Temple, Rajasthan-
This reknowned Jain temple is dedicated to Tirthankara Adinatha.The temple

made entirely of carved white marble is a landmark and several Indian and
international tourists visit it to admire its beauty and grandeur. However, a large
board outside defines when and how a women can visit here. Again, women on
their periods are not allowed to enter the temple. It also has rules about wearing
western dresses and accessories. The temple requires women to cover their legs
below their knees.
Trimbakeshwar Temple, Nashik-
The Shiva Temple located around 30 kms away from Nashik is one of the 12
famed Jyotirlingas and also one of the places that restrict entry to women in its
core area. There has always been a news about people associated with temple
being unhappy about breaking the age old tradition. Interestingly, mythology
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mentions the Ardhanareshwar form of Lord Shiva which depicts a union of

masculine and feminine forms of energies.
Sabarimala Temple, Kerala-
The temple confines the entrance of women between 12-50 years i.e., the
‘menstruating age’, inside the temple. Based on legends, Lord Ayyappa was a
‘Brahmachari’ in his teenage, when he was once requested by a young girl ‘Nila’
to marry her. Nonetheless, the Lord abandoned the suggestion and cited his
promise a life –long celibate.
Sree Padmanaswamy Temple,Thiruvananthapuram-
Considered the richest temple in the world, the Sree Padmanaswamy Temple
houses treasure vaults. When it comes to worship, the temple has a weird rule.
Women devotees can worship the diety but should not come inside the temple
chambers. The custom to disallow women in their reproductive age to enter the
temple exists from the centuries and was established ever since two Pushpanjali
Swamiyars of Sree Malayinkeezhu temple had to stay for six months at the
temple. Since the Swamiyars were celibates, treating the women as outlaws
became a custom. Women inventory officials are too not allowed into the treasure
vaults and a few years back, the temple authorities even restricted entry to a
women expert from the Archaeological survey of India.
Mangal Chandi Temple, Jharkhand-
The Purni Baghiyari village in Bokaro district witnesses many a visitor every
year, most of whom come to visit local Maa Mangal Chandi Temple. However,
quite ironically for a place intended to honour the Goddess Kali, one of the
fiercest female dieties in the Hindu religion, there are not many women to be
found amongst the hordes of devotees.
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The reason? As women are not allowed within 100 feet of the temple, their
offerings are carried by their male companions to a stone- supposed to symbolise
the fierce incarnation of goddess Durga-from a certain point in its premises.
However, people in the neighbourhood-even those of the fairer sex – insist that
there is nothing remotely sexist about the rule. In fact, they say the rule has been
to prevent calamity from befalling the women worshippers. Puja is offered at the
temple only on Tuesdays, an auspicious day on which a large number of devotees
comes to sacrifice animals. They are then allowed to cook meat and eat it in the
village limits, though none of it is to be shared with women.
Shani Temple, Shani Shingnapur, Ahmednagar-
The Shani Temple situated in a village about 35 kilometres away from

Ahmednagar city, barred the women from entering the sanctum sanctorum of the
temple and a distinct legend suggests that only men are allowed to pour oil on
Shani Dev in the temple. It is believed that since women are not affected by Shani
Dev’s effect, they need not pour oil on the ‘Swayambhu’ idol. It may expose
them to the bad effects of Shani Devta as he is the God of ‘imbalance’. The
tradition of barring women from pouring oil on the idol is approximately 400
years old.
Mawali Mata Mandir, Chattisgarh-
Based on information of the priests of the Mawali Mata Mandir, they had one
time heard a cleric that he saw the divinity rising from the earth. The diety then
told the priest that she was the ‘spinster’. This is the reason why women are not
being allowed inside the temple to visit the Goddess.
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Kamakhya Devi Temple, Assam-
The temple is located in Guwahati, the temple remains closed for three days at
specific times of the year, unlike most other temples. In those three days it is said
that the idol bleed red and is therefore, kept in seclusion for three days. Here, the
entry of women is prohibited if she is having menstruation.
Rationality of these Restrictions and its Relevance in Modern World-
We need to understand that not sanctioning the women inside the temples and
holy places made some sense in the past as the menstruation practices were not
sufficiently reasonable. The restrictions imposed on women from entering in
temples is of no relevance as the presupposition of any calamity because of
women’s entry to the temple is merely a dialogic myth and none more. The ban
on the entry to Sree Padmanaswamy temple too is of no relevance now since,
there is no one to stay there, as was earlier and restricting the women’s entry
merely on the basis of menstruation is not the fault on the part of the women, it
is only the biological process which should not become hurdle in the way of their
right to worship. Although some of the restrictions made sense in the past but,
now these beliefs has no relevance else than giving the descriptive view of male
chavinism. The ideas and beliefs that once made sense are now obsolete and
illogical to carry on further as the beast of burden. The burden of these baseless
myths portrays our country as primitive and backward.
“If a rapist, murderer, thief or delinquent is allowed to enter a temple then,

why not a menstruating women, is this the crime she has committed?”
Right to Worship and Gender Equality-
Indian Constitution being the supreme law of the land contains and prescribes
some provisions regarding the individuals right to worship as the fundamental
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right and is enforceable by the Court of Law. These provisions of Constitution

expressly gives the right to all persons, right to enter places of worship.The
Articles of the Constitution are as enumerated.viz.,:-
Article 14- It dictates about the Right to Equality “to any person”. Here, the
phrase ‘to any person’ implicitly includes women. If the men are given access to
enter the premises of temple, so, why these contractors of religion restricts
women to enter the premises of temple during her menstruating age or by any
other reason.The restrictions imposed by the temples for banning women entry
inside the temple is outrightly violative of this article.
Article 15- It expressly allocates the provision of no discrimination on the

grounds of religion, race, caste, sex, place of birth. The ban imposed by the
temples for restricting the women entry is also violative of this article.
Article 21- It states that ‘No person shall be deprived of his personal liberty
except by the procedure established by law’. Personal liberty in itself contains
the sphere of ‘Right to Worship’ when read with Article 25 of the Constitution.
So, this article too pronounces its verses in favour of women entry to the temple
or any other religious places.
Article 25(1)- “All persons are equally entitled to freedom of conscience and the
right to freely profess, practice and propagate religion.” This allocates the direct
and express provision and is a rider string for women right to worship.
Article 25(2)(b)-State is empowered to throw open all Hindu religious institutions

of a public character, to all classes and sections of Hindus. It ensures an
individual’s right to enter a temple unobstructed irrespective of his caste,
untochability, social inequality or under-privileged class.
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Section 3 provides that “ Notwithstanding any custom, usage or law for the time
being in force, or the decree or order of a Court, or anything contained in any
instrument, to the contrary, every place of public worship shall be open to Hindus
generally, or to any section or class thereof, shall open to all sections and classes
of Hindus; and no Hindu whatsoever section or class, shall in any manner be
prevented, obstructed or discouraged from entering such places of public
worship, or from worshipping or offering prayers there at, or performing any
religious service therein, in the like manner and to like extent as any other Hindu
of whatsoever section or class may so enter, worship, pray or perform.”4 Section
4 provides that any person who contravenes this provision would be punished
with imprisonment which may extend upto six months and with fine which may
extend to five hundred rupees, or with both.5
International Conventions and Rights of women-
There are a plethora of international agencies working for the welfare of women
and for providing their basic rights and these led to the creation of some
conventions for protection of women rights. These are as enumerated viz.,-
Article 18 of Universal Declaration of Human Rights - “Everyone has a right to

freedom of thought, conscience and religion and it also includes practice, worship
and observance.”
Article 18 of International Covenant on Civil and Political Rights- “Everyone has

a right to freedom of thought, conscience and religion. This right shall include
freedom to have or to adopt a religion or belief of his choice, and freedom, either
4
The Maharashtra Hindu Places of Public Worship (Entry Authorisation) Act, 1956, No. 31,
Acts of Bombay (India).
5
Id.
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individually or in a community with others and in public or private, to manifest

his religion or belief in worship, observance, practice and teaching.”
CEDAW6- The convention defines discrimination against women as “…any

distinction, exclusion or restriction made on the basis of sex which has the effect
or pupose of impairing or nullifying the recognition, enjoyment or exercise by
women, irrespective of their marital status, on the basis of equality of men and
women, of human rights and fundamental freedoms in the political, economic,
cultural, civil or any other field.”
“Gender equality is not a pint-sized lexeme with a miniature glossary rather its
a chock-full tiding which oceanises in itself a vast globule of meanings and
interpretation, but it initially encompasses the phenomena of a society where
the word gender would not further exist.”
“A gender-equal society would be one where the word ‘gender’ does not further
exist: where everyone can be themselves.”—Gloria Steinam
For promoting good governance a society of best citizens boasted with developed
citizens gender equality is must which commits a race of all equals be it men or
women, which could be depicted by the quotes-
“Gender equality is more than a goal in itself. It is a precondition for meeting the
challenge of reducing poverty, promoting sustainable development and building
good governance.”—Kofi Annan
“Achieving gender equality requires the engagement of women and men, girls
and boys. It is everyone’s responsibility.”—Ban Ki-Moon
6
Convention on the Elimination of All Forms of Discrimination Against Women.
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Women rights constitute a major part of the human rights which are pragmatic
for the development and equal footing standardization of the sociey.
“ Human rights are women’s rights, and women’s rights are human rights.”—
Hillary Clinton
“I measure the progress of a community by the degree of progress which women

have achieved.”—B.R. Ambedkar
“Men their rights, and nothing more; women, their rights, and nothing less.”—
Susan B. Anthony.
The gist of gender equality is to make the women reach the same footing as that
of males and not overpowering them over others, which is rightly said as-
"I do not wish women to have power over men; but over themselves.” —Mary
Shelley
"One child must never be set above another, even in casual conservation, not to
mention in speeches that circle the globe.” —Alice Walker
Cases on allowing women to enter Places of Worship-
“Should places of worship restrict entry for some sections of the population or
should everyone have the right to enter them? You be the judge.”
The struggle for rights of women to enter religious places is not peculiar in any
religion. The effort had gained steam after a petition pending since 2006 found
itself revived by the Apex Court recently. The petition filed by the Indian Young
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Lawyers Association, seeks lifting of the ban on entry of menstruating women to

the famous Sabarimala Temple.
‘Shani Shingnapur Case’
The debate over the entry of women in the temple had escalated in 2015, after
the temple authorities prompted to suspend security guards and the villagers
performed purification rituals, following a breach of customs due to the entry of
a woman. Ms.Trupti Desai, heading the campaign for gender equality in temples,
had then launched a campaign to carry the movement forward.
“It is a women’s Fundamental Right to enter temples and State’s duty to protect
that Right: Bombay HC.”
The Court was hearing a PIL filed by activist, Vidya Bal, and senior Advocate
Nilima Vartak, challenging the century-old tradition that denied the entry of
women inside the sanctum sanctorum of Shani Shingnapur Temple in
Maharashtra’s Ahmednagar district.
In a verdict that is expected to have far reaching ramifications, Bombay High

Court observed that no law bars entry of women in places of worship, and hence
no gender discrimination in this regard should be tolerated. “Ultimately, it is the
fundamental right of a women and the government’s fundamental duty to protect
their (women) rights,” a Division bench comprising Chief Justice D. H. Waghela
and Justice M.S. Sonak .
Also said “ there is no law that prevents entry of women in any place .If you
allow men then you should allow women also. If a male can go and pray before
the deity then why not the women? It is the State government’s duty to protect
the rights of women,” the Division Bench had rapped the authorities.
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This particular judgment has far-reaching implications as this judgment was

reiterated on various occassions. The petitioners contended that this prohibition
is arbitrary, unreasonable and illegal. The Court also referred to the Maharashtra
Hindu Places of Public worship (Entry Authorisation) Act, 1956, Section 3 of
which clearly states that no person could be prohibited from entering any temples
by any person, and no custom or usage shall be considered superior to the
provisions of the Act, and whosoever acts in contravention of Section 3 shall be
imprisoned for a term of 6 months or a fine of Rs 500 under section 4 of the Act.
The Court had also opined that the government should give proper publicity to
the Act and issue circulars, informing the general public at large about the Act
and its provisions.
‘Sabarimala Temple cases’
The Apex Court, while taking cue from the Bombay High Court’s decision on
Shani Shingnapur temple case, held that no law or custom could justify the ban
on entry of a women to the temple.7 The Court also csriticized the 1991 Kerala
High Court judgment S Mahendran v. Thiruvananthapuram in which the
High Court of Kerala upheld Section 3(b) of Kerala Hindu Places of Public
Worship (Authorisation of Entry) Rules which prohibits entry of women and
justifies the same.8
In 1990, S. Mahendran, a devotee, filed a petition in the Kerala High Court

protesting against the entry of young women to the shrine. He cited the example
of S. Chandrika, the board’s former commissioner. She had conducted a first rice-
feeding ceremony for her granddaughter in the presence of several women.
7
Indian Young Lawyers Association v.Union of India Writ Petetion (Civil) 373 of 2006.
8
A.I.R. 1993 Kerala 42 (India).
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The Court issued a notice to the Complainant, S. Mahendran, S. Chandrika and

the Devaswom Board asking for an explanation. After hearing the arguments, the
Court felt that the questions that arose were fundamental in nature and could have
an impact on the faith of the temple. Hence the complaint was converted into an
original writ petition- a public interest litigation- under Article 226 of the Indian
Constitution.
In 2006, the Indian Young Lawyers Association challenged it and sought removal
of the ban in the Supreme Court. It argued, “Hindu women have a right to enter
the temple as part of their right to practise religion under Article 25 of the
Constitution, gender justice principles and it is also the part of the constitutional
morality of India…the denial of entry between the ages of 10 to 50 years is based
on the fact of menstruation alone and is therefore based on biological factors of
womanhood. It is therefore based on sex and not protected by the Article 26 of
the Constitution..”
Conclusion-
To conclude I would like to say that although in the ancient world, the restrictions
imposed upon the women regarding their right to enter places of worship made
some sense as per the rationale dictated by the temples . But, in the modern world
where the principle of ‘Gender Equality’ rules the society those rationale or
reasons are purely obsolete. Giving the women, the right to enter places of
worship would be sufficient to uphold their status in the society and would meet
the scope of the principle of Gender Equality ruling the society. Women too have
the right to equality which in itself comprehensively subsumes their right to
worship, which further encompasses the right of women to enter the places of
worship.
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As we all know, even the day today women are facing sheer tottering conditions
and the verses of Article 14 is just a myth for the Indian women and none more.
They are deprieved of even the substratal nuts and bolts of the survival which
dragoons them as the citizens of third world country. In some places they are
treated not more than the beauty manikins or mere chattels in the hands of males
which could be moulded and folded according to the needs and wants of the man.
The status of women could only be aggrandized by providing them the basic
fundamentals of the living. Right to worship is the most fundamental right of
individuals. So, women are also required to be treated the same way as men in
the religious sphere. Right to worship being the primsitive, if provided to women,
would be a great leap for the womankind.
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SOCIAL AND ECONOMIC ISSUES OF TRIBAL AND

INDIGENOUS PEOPLE VIS-À-VIS LAND ACQUISITION
Abhisek Ray 1
D V N Murty 2
“Our breathing is the same breath which springs from the world: the airs, the
winds, and the breeze. All the races of people are equal.”
-Arhuaco, Colombia
Before discussing the social and economic issues of tribal and indigenous
people, the first is to understand what a ‘people’ is. The word people have two
superficially similar meanings. The most common is the plural of ‘person’. The
other, is ‘a people’ meaning an identifiable society. This could be used to refer
to a nation, for example, the Scottish and the Moroccans. This does not indicate
that Scottish individuals are different from those in Morocco, though of course
they are: it signifies that the one nationality is distinct from the other. In this
sense, ‘people’ is a singular, not plural word. Extremist’s views aside, it is
obvious that the world’s population is divided into countless different peoples.
A tribe is viewed, developmentally or historically, as a social group existing

before the development of, or outside of, states. A tribe is a group of distinct
people, dependent on their land for their livelihood, who are largely self-
sufficient, and not integrated into the national society. Stephen Corry defines
tribal people as “those who have followed ways of life for many generations that
are largely self-sufficient, and are dominant society”.3
1
Ph.D. Scholar in School Of Law, KIIT University.
2
Faculty Associate, ICFAI Law School, Hyderabad and also a Ph.D. Scholar in School Of
Law, KIIT University
3
Stephen Corry, Tribal peoples Tomorrows world, 2011
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India is the second Largest concentration of tribal population, after that of African
content, and it is nearly 9% of the total tribal population. ‘Adivasi’ is a term used
for many of India’s hundreds of tribal peoples implying ‘original inhabitants’ of
the land. “There are 698 Scheduled Tribes spread all over the barring States and
Union Territories like Chandigarh, Delhi, Haryana, Pondicherry and Punjab.
Odisha has the largest number i.e 68 Scheduled Tribes. They are notified as
Scheduled Tribes(STs) by the President of India under Article 342 of the
Constitution”4.
Indigenous people are the descendants of those who were there

before others who now constitute the mainstream and dominant society. They are
defined partly descent, partly by the particular features that indicate their
distinctiveness from those who arrived later, and partly by their own view of
themselves5.
Any given people, ethnic group or community may be described as

indigenous in reference to some particular region or location that they see as their
traditional tribal land claim6. Other terms used to refer to indigenous populations
are aboriginal, native, original.
The distinction between tribal and indigenous people is important

because tribal people have a special status acknowledged in International Law.
There are estimated one hundred and fifty million tribal individuals worldwide,
constituting around forty percent of indigenous individuals. However, although
nearly all tribal peoples are also indigenous, there are some who are not
4
Tribal : Victims of Development Projects- India’s Forced Displacement Policy and Practice,
Accessed on 23rd March 2017,(http://socialissuesindia.wordpress.com/)
5
Stephen Corry, Tribal peoples Tomorrows world, 2011
6
Mario Blaster, Harvey A. Feit, Glenn McRae, In the Way: Indigenous Peoples, Life Projects,
and Development, IDRC, 2004, P.53
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indigenous to the areas where they live now. And also all indigenous peoples are
not tribal. They often face particular issues in addition to those faced by the wider
category of indigenous people. But, the issues, specifically social and economic,
which we are going to discuss here, are related to both tribal and indigenous
people. Though, it is more in case of Tribal people. More in the sense, they are
always confined to a certain place; generally they don’t go outside of the same.
The issue is related to acquisition of land and how it affects both tribal and
indigenous people socially and economically.
Indigenous and tribal peoples are the world’s largest minority and the
abuse they suffer is a major issue in socio-economic and humanitarian point of
view. By the acquisition of land they suffered a lot.
According to, Amy Chua “The issue of land acquisition and dispossession
through its many revised Acts and policies in India has made the problem more
complex as it has not only compelled the local people through the coercive
measures to sacrifice their land and livelihoods but also has caused a series of
devastation and trauma to their lives after displacing them7.
By discussing laws relating to land acquisition and Constitution of India

prevailing in India, we can better understand the problems the people (specially
Tribal people) are going through.
Acquisition of land in India was previously governed by the Land

Acquisition Act, 1894.The century old Land Acquisition Act, 1894 was replaced
by the Right to fair compensation and transparency in land acquisition,
rehabilitation and resettlement Act, 2013 in order to stream line the provisions of
the 1894 Act causing less hardship to the owners of the land and other persons
7
Amy Chua, professor at Yale law School, The World on Fire, 2004
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depend upon such land. Even we can say the new Act is a Neo-liberal version of
its counterpart. Before Right to fair compensation and transparency in land
acquisition, rehabilitation and resettlement Act, 2013, there is no Central Law to
adequately deal with this issues of rehabilitation and resettlement of displaced
persons. The new Act introduced many thing like Social Impact Assessment,
rehabilitation, Resettlement, Social Impact Management Plan and Environment
Impact Assessment. As Land Acquisition and rehabilitation and resettlement are
two sides of a coin, so legal enactments or provisions for both the issues is equally
necessary which is the main aim of the new enactment. Because from the
perspective of industrial development, urbanization project; land acquisition is
very much necessary and while acquiring Government has to take into
consideration problems of the displaced person. By displacement the displaced
persons lost their livelihood, home, their access to traditional resource base was
restricted etc. They are uprooted from their socio-cultural environment, which
have traumatic psychological and socio-cultural consequences on the displaced
persons. So, additional benefits beyond monetary compensation are quite
evident, because these are mostly involuntary displacement. On the other hand
the plight of those who don’t have rights over the land on which they are
predominantly dependent for their subsistence is even worse. Only because of
the displacement displaced persons become unable to continue their traditional
livelihood activities after the resettlement. The displaced persons are mainly
farmers or tribal people.
Whenever there is an acquisition of land, mostly it is for the economic

growth of the country through Industrialization. Though lands are also acquired
for the purpose of construction of Hospitals, Educational institutions etc. But
there is no surety that all the people those who are going to be displaced or
already displaced are going to be or were resettled in the same place and by that,
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individuals with whom they share certain lifestyles and socio-economic or

demographic characteristics are completely lost. And it is quite difficult to
establish same kind of ties with strangers in the resettled area. It affects them both
socially and economically. Solving of issues like Social capital loss of the
displaced persons, whether it is of tribal people or indigenous people or normal
people is the main social issue as well as compensation and loss of livelihood are
certain economic issues, which are the need of the hour.
Bourdieu and Wacquant8 defined social capital as the “Sum of

resources, actual or virtual, that accrue to an individual or a group by virtue of
possessing a durable network of more or less institutionalized relationship of
mutual acquaintance or recognition”.
According to James S. Coleman 9

“Social capital is defined by its
function. It is not a single entity, but a variety of different entities having two
characteristics in common; they all consist of some aspect of social structure, and
they facilitate certain actions of individuals who are within the structure”.
Social Capital is often seen as a recognized applicability of the concept

of social capital and its correlation with the different dimensions of poverty, it
has been used in evaluating the adaptation and integration of voluntary displaced
individuals into their new social worlds. Even in some places involuntary
displaced people or victims of forced migration are called refugees, asylum
seekers, resettles, or internally displaced people. They are socially uprooted from
their home, their social world also was disturbed and even their stocks of social
capitals were also disrupted.
8
Pierre Bourdieu and Loic J. D. Wacquant, 1992, p. 119, An Invitation to Reflexive Sociology
9
James S. Coleman, 1992, p. 302, Foundation of Social Theory
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Social capital is measured by using the proxy indicators such as number

of ties known neighbours, friends, relatives and so on, in order to determine the
network size; quality and content of the ties, whether they are “bonds” or
“bridges” and whether they help you to “get by” or “get ahead”; level of trust,
shared norms, values; and social resources that an individual can draw from his
or her ties and networks10.
In a study by Lamba and Krahn11, following the resettlement experience

of 525 refugees in Canada, it was uncovered how their already settled relatives
(both immediate and extended family members) were able to see them through a
situation pervaded with the trauma and uncertainties of displacement. For
financial and personal issues they drew on their familial ties and networks.
However, for job security and health issues, they trapped their external familial
networks or facilities in their community. This pattern has been consistent and
clearly illustrates the functional value of social capital among such migrants. The
wide range and depth of the ethnic and kinship ties involve encompassed the
dimensions of “bonding”, “bridging” as well as “supportive and leveraging ties”.
In case of India, it has the Right to fair compensation and transparency in

land acquisition, rehabilitation and resettlement Act, 2013 to govern the
acquisition of land by the Government, which replaced the colonial land
acquisition Act, 1894. In the old Act there is no provision regarding the
rehabilitation and resettlement. But the new Act introduced many thing like
Social Impact Assessment, rehabilitation, Resettlement, Social Impact
Management Plan and Environment Impact Assessment. But it does not
specifically mention anything regarding the socio capital losses. It has mentioned
10
Mellissa Quetulio-Navarra, Social Capital In Involuntary Displacement And Resettlement
11
Lamba, N.K., and Krahn, H.(2003), Social Capital and Refugee resettlement: The Social
networks of Refugees in Canada, Journal of International Migration and Integration
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that, while undertaking a Social Impact Assessment study the appropriate

Government shall, amongst other things, take into consideration the impact that
the project is likely to have on various components such as livelihood of affected
families public and community properties, assets and infrastructure particularly
roads, public transport and drainage, sanitation, drinking water, sources of water
for cattle, plantations, health facilities, schools and educational or training
facilities, anganwadis etc.
Whenever any tribal land has been acquired, the tribal people are
definitely going to get compensation for that. In certain cases they are also
rehabilitated and resettled in some other place. There is no doubt regarding that.
But the compensation which are given by the respective Government is not in a
empathetic approach but it is, we can say in a sympathetic approach. And another
thing is, the concept of property as perceived by general human being is not the
same as perceived by the Tribal people, it is more than that for them. Another
thing is, whenever any acquisition of land is proposed before that a notification
regarding the acquisition is published in the official gazette. The reason behind
it is, to make people of that area know about the acquisition proposal and file
objection in relation to that. But here the question is, the tribal people of which
mostly are uneducated or we can say, hardly any of them know about these rules
regarding objection; how could these people know and object the same? They
come to know when any official come for observation or when notice is given to
them and these people are very much attached to their environment and they
normally do not want to leave the same at any cost which can be easily
understood from the issues of Vedanta’s Bauxite Mining Project in the State of
Odisha, Kohinoor Steel Plant and Mittal Steel Plant Project of Jharkhand State.
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As per the reports of the Survival International Organization12, Dongria

kondh Tribe are the inhabitants of Niyamgiri hill range in Odisha. For more than
a decade the 8000 plus Dongria kondh lived under the threat of mining by
Vedanta Resources, which hoped to extract the estimated $2 billion-worth of
Buxite that lies under the surface of the hills. The company planned to create an
open-cast mine that would have violated Niyam Dongar, disrupted its rivers and
spelt the end of the Dongria Kondh as a distinct people. The Dongria live in
villages scattered throughout the hills. They believe that their right to cultivate
Niyamgiri’s slopes has been conferred on them by Niyam Raja and they are his
Royal descendants. They have expert knowledge of their forests and the plants
and wildlife they hold. From the forests they gather wild foods such as mango,
pineapple, jackfruit and honey. Rare medical herbs are also found in abundance,
which the Dongria use to treat a range of ailments including arthritis, dysentery,
bone fractures, malaria and snake bites. So, they repeatedly expressed opposition
to efforts to mine in Niyamgiri. According to these people, “if we have hills we
can live for generations. Every day we find jackfruits, mangoes, bamboo,
oranges. But without Niyamgiri we will die.” So, from this we can very much
understand that how they are attached with the hilly environment. Even
compensation and rehabilitation does not matter to them. They do not need any
compensation or rehabilitation. Their only need is the hilly environment from
which they used to get their livelihood. The Dongria protested against Vedanta
locally, nationally and internationally. They held road blocks; even they formed
a human chain around the Mountain. According to Rajendra Vadaka one of the
Dongria tribe, “Vedanta has come here to destroy the Dongria. They don’t have
any right to touch our mountains. Even if you behead us, we are not going to
allow this.” Even an International organization named Survival, who fights for
12
www.survivalinternational.org/about/niyamgiri, accessed on 23rd March 2017
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the tribal people’s right also supported them. According to this organization,
“Industrialized societies subject tribal peoples to genocide violence, slavery and
racism so they can steal their lands, resources and labour in the name of
“progress” and “civilization”. This very Organization lobbied the Indian
Government, as well as the UK government for the mine to be stopped. Even
they submitted detailed reports to the UN and the OECD. The UK government
ruled that Vedanta did not respect the rights of the Dongria Kondh and did not
consider the impact of the construction of the mine on the Tribal rights. The
efforts of the Dongrias and the Organization didn’t go in vain, because the
Dongria Kondhs have won a heroic victory against mining giant Vedanta
Resources to save their sacred hill. The Hon’ble Supreme Court told Vedanta that
the Dongria must decide whether to allow mining on the Mountain of the Law.
The Dongria answered with an unequivocal ‘No’. And in this way they were
saved by the superior Court of India from being affected socially and
economically.
Another example is the State of Jharkhand, which is known as the abode

of Adivasis. Population of Adivasis is 26.3 % of the total population of the State,
as per the Census report, 2011. The State has total 32 sub-communities of
Adivasis. The rapid Industrialization is the sole reason for the declination of the
Adivasis population. The State contains 40% of India’s precious minerals like
Uranium, Mica, Bauxite, Granite, Gold, Silver, Graphite, Magnetite etc. and
forests and woodlands occupy more than 29% of the State which is amongst the
highest in India. Only because of this, it is a safe heaven for Industrialization, and
the innocent Adivasi peoplde are paying the price. They were alienated from their
resources and exploited. These people are also resisting against displacement by
attacking the Company’s official and not allowing them to enter into their village.
Because most of these people still rely on agriculture, forest produces and
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livestock for their survival. Even in the year 2008, Adivasi people attacked on
the Kohinoor Steel plant near Jamshedpur, seized 70 trucks and stopped the work.
Their allegation was that, after acquiring their agricultural land, the company
neither compensated nor gave them jobs as promised and also the company is
causing huge environmental affect in agriculture, water resources and public
health13. Similarly, the Mittal steel Company also faced resistance from the
Adivasis. But this Company somehow managed to find a foothold in the State in
the exchange of various CSR activities.
Whether it is Vedanta Steel plant in Niyamgiri or Kohinoor Steel plant in

Jamshedpur, the question raised here is that, why Adivasi people do not want to
give their land for the development projects? The reason behind this are, first of
all, these people are mostly uneducated and most backward people. So they are
easily exploited by the others and for that they are suffering a lot. Secondly, these
people are not getting any benefit of these development projects in terms of jobs
or proper compensation. Thirdly, various laws are framed for the protection of
rights of the Adivasis, but always there is defect in implementation. Finally, by
displacing these people they are deprived of from their livelihood resources,
culture and identity, which they develop by nourishing for the ages. Because the
Adivasis are fully dependent on natural resources, so, we can’t question their co-
existence with the nature.
If we consider the constitutional point of view with respect to

Tribal’s, there are several provisions in the Constitution of India. Article 342 and
Article 366 clause (25) speaks about Scheduled Tribes, Article 46 of the
constitution places an obligation upon Sates to promote the interests of Scheduled
13
Tribal Struggle against Displacement in Jharkhand, (Report by National Confederation of
Human Rights organizations, India)
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Casts and Scheduled Tribes and protect them from social injustice and all forms
of exploitation and schedule V deals with the provisions as to the administration
and control of Scheduled Areas and Schedule Tribes. Beside the Constitution of
India, there are also other TRIBAL Welfare laws like PESA, 1996, The Forest
Rights Act, 2006, but all are failed to provide protection to the Indigenous Tribal
people. The sole reason behind it is, politicization in law making procedure. As
we all know, it is the duty of the legislature to make law for our country. The
persons those who are in legislature, belong to various Political Parties. The party
which is in power does certain changes in the existing laws or brings a new
enactment, in the name of benefit to the Public at large or for the development of
the Country. But there are always flaws in these laws only to satisfy the private
entities, from which they get funding for their respective parties. And all the
parties always involved in blame game among themselves in the Parliament,
whenever any issue related to development of Public or tribal people is proposed
for discussion. Even the Industrialization, Privatization and Globalization in the
name of development are the reasons of the social and economic problems of the
Public at large; especially of the Tribal people. And it is the biggest threat to
tribal people’s survival. These are like predators, which are surviving on the eco-
friendly, peaceful and harmonious life style of the Tribal people. And by this
their very ‘right to live’ which is guaranteed by the Constitution of India is also
violated. There no doubt that, development of the economic growth of the
country should be given paramount importance but that does not mean, tribal
people should be ignored only because of that. So, the need of the hour is,
development should be social development vis-à-vis sustainable development.
Recently, Uttarakhand High Court declared that the rivers, streams,

rivulets, lakes, air, meadows, dales, jungles, forest wetlands, grasslands, springs
and waterfalls in the state are living entities. This court had earlier granted the
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same status to the Ganga and Yamuna rivers. By this decision of Uttarakhand
High Court, the Tribal people of Uttarakhand are definitely going to be benefited;
because normally, these people are fully dependent on natural resources. And this
very verdict will act as a check upon the destruction of natural resources. Other
High Courts should also take precedent from Uttarakhand High Court. Central
Government should think of making a central legislation regarding all the rivers
and forests in India which can have a chance of saving all the tribal’s and their
culture which is on the verge of extinction.
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OFFENCES AGAINST MEN: THE CRY OF

UNRECOGNIZED VICTIMS
Adil Khan 1
RAPE- “Only a man can rape a woman”
Section 375 of the Indian Penal Code states that, “A man is said to commit
“rape” who, except in the case hereinafter excepted, has sexual intercourse
with a woman under circumstances falling under six descriptions.”
According to section 375, rape is something that a man can do to a woman. It

views rape something as a penile-vaginal to penile-orifice and then to
penetrative-orifice all within the context of dissent. This legal definition
assumes that the man is always the perpetrator. The penetration of objects as
seen in Nirbahaya case would also constitute as rape within the definition of
Section 375. This definition is based on patriarchal and archaic thoughts.
Neither does it recognize males as victims of rape, nor does it consider rape
committed by a woman to a woman.
Although child survivors of both sexes are covered by the Protection of

Children from Sexual Offences Act 2012, current rape laws leave out a large
swathe of male victims, who cannot come forward for fear of stigma and a
lack of legal recourse.2
Rape remains a social stigma, stifled by preconceived notions of men as

3
symbols of power and dominance. However, rape is always not based on
power dynamics. Lust and sexual desires also play a major role which are
1 Jindal Global Law School, OP Jindal Global University, Sonepat (HR)
2 Stokes, John. “India's law should recognize that men can be raped too.” Scroll.in, (3
Jan.2017), Https://Scroll.in, scroll.in/article/676510/indias-law-should-recognise-that-men-
can-be-raped-too.
3 Joshita Jothi and Keshavdev J.S., Rethinking Rape: Should the Law Still Confine to The
Paradigm? 2(1) NLUJ Law Review 56 (2014).
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possessed by women and can anyway compel them to commit rape. But
rather, the crime of rape is exclusively patriarchal by definition.
In looking at child sexual abuse specifically, the Indian government did find
in 2007 that, of surveyed children who reported experiencing severe sexual
abuse, including rape or sodomy, 57.3% were boys and 42.7% were girls.
More recently, the Delhi-based Centre for Civil Society found that
approximately 18% of Indian adult men surveyed reported being coerced or
forced to have sex. Of those, 16% claimed a female perpetrator and 2%
claimed a male perpetrator.4
The Criminal Law Amendment passed by the Centre in 2003, aimed at

making the crime of rape gender neutral from the perspective of both the
perpetrator and the victim. This however proved to be vague as it did not
specifically use the word rape. Some recourse of justice to man could have
been given by the charges under section 377 of the Indian Penal Code 5, also
called as the anti sodomy law which talks about unnatural offences. however,
the problem here is that, neither does it recognize sodomy as actual rape, nor
does it talk about the consensual and nonconsensual acts between two mail
adults.
Men do not only face exclusion from the existing rape laws in India, but also
suffer harassment due to such strict rape laws made by the parliament. The
trend among women filing false rape cases stands exposed with the Delhi
Commission of Women (DCW) revealing shocking statistics showing that
53.2% of the rape cases filed between April 2013 and July 2014 in Delhi were
4
“India's law should recognise that men can be raped too.” Centre For Civil Society, (13
Sept. 2014), ccs.in/indias-law-should-recognise-men-can-be-raped-too.
5
Indian Penal Code, Section 377, Unnatural offences. —Whoever voluntarily has carnal
inter-course against the order of nature with any man, woman or animal, shall be punished
with 1[imprisonment for life], or with impris-onment of either description for a term which
may extend to ten years, and shall also be liable to fine. Explanation. —Penetration is
sufficient to constitute the carnal intercourse necessary to the offence described in this
section.
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found 'false. The report says that between April 2013 and July 2014, of the
2,753 complaints of rape, only 1,287 cases were found to be true, and the
remaining 1,464 cases were found to be false. 6
It is said that the rape affects women in different ways than man. Apart from
the feeling of shame and humiliation, there is also a fear of the Indian society.
Because of the degree of the importance Indian society places on maintaining
female virginity, females are deemed to be suffering more. Yet on the same
token, there is a burden placed on the male survivors as well. After being
raped, they tend to perceive themselves as effeminate and homosexual which
are unfortunately taboo topics for men. Such type of humiliation may not be
felt equally by female survivors.
In light of the above reasoning, there is an imminent need to for the legislature
to reexamine the current provisions of rape laws in India. Since the possibility
of sexual assault on men, as well as homosexual, transgender and transsexual
rape, is a reality, the provisions have to be cognizant of the same.7
Thus, prospective amendments in section 375 and 377 of the Indian Penal
Code have to be brought in to serve equity and justice to men by recognizing
them as victims of rape.
ADULTERY- “The man is always the seducer”
Adultery in section 497 of the Indian Penal Code is defined as-
6
IndiaToday.in. “53.2 per cent rape cases filed between April 2013-July 2014 false, says
DCW.” India Today, India Today, (29 Dec. 2014),
www.indiatoday.in/india/north/story/false-rape-cases-in-delhi-delhi-commission-of-
women-233222-2014-12-29.
7
Justice J.S.Verma, Justice Leila Seth and Gopal Subramaniam, REPORT OF THE
COMMITTEE ON
AMENDMENTS TO CRIMINAL LAW, 416, (2013) available at
http://www.prsindia.org/uploads/media/Justice%20verma%20committee/js%20verma%20c
ommitte%
20report.pdf.
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“Whoever has sexual intercourse with a person who is and whom he knows
or has reason to believe to be the wife of another man, without the consent or
connivance of that man, such sexual intercourse not amounting to the offence
of rape, is guilty of the offence of adultery, and shall be punished with
imprisonment of either description for a term which may extend to five years,
or with fine, or with both. In such case the wife shall not be punishable as an
abettor”.8
Adultery generally means voluntary sexual intercourse between a married

person and a person who is not their spouse. Adultery had been brought under
punishment nearly 150 years ago under the Penal Code 1860 where women
were exempted from any penal liability. Since then, various amendments are
made in the code, but the law on adultery remains intact.
This law apparently protects the women, but in reality, it leaves them in a
more vulnerable situation and deprives them from any legal protection. As
women are exempted from any liability, it is considered discriminating
against men. Whether biased against women or men, India’s adultery law is
seriously messed up and needs to be debated.
The Indian Penal Code says that Adultery is a crime committed by a man with
the wife of another man without her husband’s consent. It is thus defined as
a crime committed by man to another man. Adultery is an offence which is
committed by a third person against a husband in respect of his wife and of
which a man can alone be held liable for the offence9. Adultery is considered
10
to be an invasion to the right of the husband over his married wife. In
adultery, consent of the wife has no role while consent of the husband is
considered essential to constitute adultery as a crime. The wife should be
8
Indian Penal Code,1860, Section 497.
9
Gansapalli Appalamma v Gantappali Yeliayya, ILR 20 Mad 470 (1897).
10
Chandra Chhitar Loha v Mst. Nandu, AIR 1965 MP 268, 269.
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married or should be a spouse of a man. However, it is not necessary that the

other person is married. 11
The objective of the law is to punish the intruder who tries to enter the sacred
matrimonial life of the husband and wife. Man is always considered as the
seducer who compels the wife of another man to drift from her existing
matrimonial tie. It seeks to protect women and does not apply to them by
saying that “the wife shall not be punishable as an abettor”. Thus, the crime
of adultery will solely be committed by a man even though the wife herself
was consensually involved in establishing an extra marital tie or having
sexual intercourse with that man.
This law is not only an offence against men but also discriminates them and
deprives them of equality under fundamental rights provided to them by the
Constitution.
This discrimination was first clearly noticed and observed in KM Nanavati v.

State of Maharashtra.12 Nanavati was being tried for the murder of a man
who had slept with his wife, but the wife was not being prosecuted for
sleeping with another man in the first place. The Yusuf Abdul Azeez 13 case
tried challenging the statute by stating that it excludes women from any kind
of liability as an abettor. It also argues that this statute is indirectly giving a
license to the women to commit adultery.
The Sowmithri Vishnu14 case in 1985 and V. Revathi v. Union of India15 case
in 1988 again challenged this decision. The counsel for the wife argued that
11
Samraj Nadar v Abraham Nadachi, AIR 1970 Mad. 434, 437.
12
K. M. Nanavati vs State of Maharashtra, AIR 605, (1962).
13
Yusuf Abdul Aziz vs The State of Bombay, AIR 321, (1954).
14
Smt. Sowmithri Vishnu vs Union of India & Anr, AIR 1618, (1985).
15
V. Revathi vs Union of India & Ors, AIR 835, (1988).
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this statute makes an irrational classification of gender and reaffirms that

women are the property of their husbands.
The court has responded to these issues by stating that it is best to not punish
the women to keep the sanctity of marriage and matrimonial home alive. The
matrimonial is a sacred place in our traditions and it is the outsider man who
has entered to unbalance it. Therefore, he should be should be penalized.16
Furthermore, article 15(3)17 of the Constitution of India also gives the State
the right to make special provisions for the benefit of women and children
and this provision is enlisted under the benefitting category by the state.
Since the current laws on adultery are messed up and are not in alignment
with the contemporary societal thoughts, there is also a need to amend the
existing law.
SEXUAL HARRASMENT- “Men are ‘mards’, they are expected to take

everything in the spirit of fun”.
Section 354A- This section enlists various unwelcoming advances,

pornography sexual overtures and favors coming from men which hurt the
dignity of women. This law also does not recognize men as victims and
females as perpetrators. This law is totally based on patriarchal and
preconceived notions of masculinity. Men who have revealed that they face
sexual harassment are few and far in between because men are supposed to
be 'manly' enough not to be bothered by inappropriate advances on their
modesty. There are increasing instances of men being sexually harassed —
from being a target of comments heavy with sexual innuendo to being stalked.
But because Indian men are supposed to be ‘mards’, they are to take all of
16
Yusuf Abdul Aziz vs The State of Bombay, AIR 321, (1954).
17
Constitution of India, Article 15, Prohibition of discrimination on grounds of religion, race,
caste, sex or place of birth- (3) Nothing in this article shall prevent the State from making
any special provision for women and children.
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this in the spirit intended — fun — and not feel uncomfortable and/or
complain.18
The Vishakha guidelines put up by the Supreme Court in 1997, were a set of
procedural guidelines for use against sexual harassment at workplace. The
Supreme Court held that every instance of sexual harassment is a violation of
fundamental rights under articles 14,15 and 16 of the Constitution of India
and amounts to a violation of Right to Freedom under article 191(g).19
Another recent judgment by Supreme Court issued directives to prevent
Sexual Harassment of women at workplace. The order was passed on October
19, 2012, requiring every public and private establishment to set up
Complaints Committee based on Vishakha Guidelines, until the enactment of
legislation to address the issue of Sexual Harassment of Women in
Workplace.20
It is astonishing that the Supreme Court in Vishakha case didn’t consider the
fundamental rights of men including equality and right to freedom that it
issued the guidelines concerning women only. Also, the Medha Kotwal’s
judgement didn’t consider the fact that even men can face sexual harassment
at workplace and that there should be a complaint committee for their
redressal. It can thus be concluded that not only the laws discriminate between
men and women, but even the courts statutory interpretations have led to the
formation of precedents which consider their masculinity to take everything
in their stride and leaves them behind as unrecognized victims.
The fear of not being taken seriously is not the only reason which prevents
men from reporting sexual harassment cases. The fear that a female
18
Khan, Zara. “Adam, What Do You Mean You Were Teased?” The Hindu, (2 May 2017),
www.thehindu.com/thread/reflections/men-too-may-be-sexually-
harassed/article18351375.ece.
19
“Vishakha Guidelines.” Http://Www.iimb.ac.in, Indian Institute of Management, Banglore
Journal, www.iimb.ac.in/sites/default/files/u198/VISHAKHA GUIDELINES1.pdf.
20
Medha Kotwal Lele and Others vs. Union of India and Others.
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perpetrator may, in fact, use sexual harassment laws to wrongly implicate the
male victim has led many male victims of sexual harassment to not formally
complain.21
It is important to understand that Sexual Harassment is neither about sex nor

gender. It is only about power. But in the current day and age, with more
women coming to powerful positions in the workplace, there is no reason why
a woman in power cannot be as abusive as a man. It is hence very important
to discuss the issue of rising incidents of crime against men in the public
forum.22
STALKING- “When a man does it, its stalking, but when a woman does it,
it’s just a troublesome act”
Stalking is defined in section 354D of the Indian penal Code. It says that (1)
Any man who-(i) follows a woman and contacts or attempts to contact such
woman to foster personal interaction repeatedly despite a clear indication of
disinterest by such woman; or (ii) monitors the use by a woman of the internet,
email or any other form of electronic communication, commits the offence of
stalking.
Following this are listed some provisos which lays down situations in which
such conduct shall not amount to stalking.
This section has criminalized stalking as a crime which makes a man

punishable with 3 years of imprisoned. The law includes attempts by a man
to foster personal interaction with a woman against her will. It also includes
communication initiated through electronic means. This law has however
21
“Vijay Nair Sexual Harassment Case: Rising Incidents against Men Emphasise Need for
Gender-Neutral Laws in India.” Firstpost, (17 May 2017), www.firstpost.com/india/vijay-
nair-sexual-harassment-case-rising-incidents-against-men-emphasise-need-for-gender-
neutral-laws-in-india-3452286.html.
22
Ungender | Diversity | Gender Inclusivity | Legal Compliance, www.ungender.in/single-
post/2017/06/29/Why-Indian-Inc-needs-to-include-Sexual-Harassment-against-Men-at-
Workplaces-in-India.
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worked a lot towards women empowerment, yet again it fails to recognize

males as victims. In todays globalized world, where internet facility is
available on tips, cyber stalking is on an increase. Legal experts agree that
even as cases of women cyberstalking men are on the rise, Indian law is still
clueless about how to handle them.23 Karnika Seth, a renowned cyber law
expert and Supreme Court lawyer says that, “about 75 percent of women were
victims of cyber stalking in India, but now the ratio is 50-50”. It is a matter
of surprise that, there is no legal provision to tackle women cyberstalks. In
fact, there is no specific law to tackle cyberstalking in India. Usually, it is
covered under Section 67 of the IT Act, but that is applicable only if there has
been transmission or online publication of obscene material.24
The recent Vijay Nair case depicts the need for incorporation of men as
victims of stalking and sexual harassment. An article posted by him recently
has gone viral in which he describes in detail the agony faced by him for
months. It began with someone anonymously posting sexually explicit posts
on his twitter profile. It was then followed by a series of vulgar messages sent
to him on WhatsApp. It was surprising when it finally came out that the cyber
stalker was one of her acquaintance.
The cyberstalking incident involving Nair is not a lone incident of a man

being sexually harassed by a woman. Sexual harassment incidents committed
against men are increasingly being reported and make one wonder whether
we need gender neutral sexual harassment laws in India.25
23
Mathur, Abhimanyu. “Cyberstalking Law: Ill-Equipped to Protect Women, Non-Existent
for Men - Times of India.” The Times of India, City, (16 June 2017),
timesofindia.indiatimes.com/city/delhi/cyberstalking-law-ill-equipped-to-protect-women-
non-existent-for-men/articleshow/59179132.cms.
24
Karnika Seth- Cyber Law Expert, Advocate- Supreme Court of India, Founding Partner of
Seth Associates.
25
“Vijay Nair Sexual Harassment Case: Rising Incidents against Men Emphasize Need for
Gender-Neutral Laws in India.” First post, (17 May 2017), www.firstpost.com/india/vijay-
nair-sexual-harassment-case-rising-incidents-against-men-emphasise-need-for-gender-
neutral-laws-in-india-3452286.html.
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VOYESRISM AND MODESTY- “Is modesty only a female virtue?”
Even the provisions of section 354 C i.e. voyeurism appears gender biased as
it states that, “Any man who watches, or captures the image of a woman
engaging in a private act in circumstances where she would usually have the
expectation of not being observed either by the perpetrator or by any other
person at the behest of the perpetrator or disseminates such image shall be
punished on first conviction with imprisonment of either description for a
term which shall not be less than one year, but which may extend to three
years, and shall also be liable to fine, and be punished on a second or
subsequent conviction, with imprisonment of either description for a term
which shall not be less than three years, but which may extend to seven years,
and shall also be liable to fine”
This section was inserted after the Criminal Law Amendment Act 2013. This
amendment however made laws against the offences against women, but
unfortunately brought no recourse for men as usual.
According to this section, only women are deemed to have a privacy. Now
that privacy is made a fundamental right, every citizen should enjoy the right
to privacy. The provisions of this statute snatch the right to privacy of men
involved in such a situation. It doesn’t consider the mental harassment of a
man whose image is captured while engaging in a private act and
disseminated to other persons without his consent. Since this section is a
subpart of the section on outrage of modesty26, a set of questions often arise;
viz. whether modesty is only a female virtue? Can’t the modesty of a men be
outraged? Can’t women indulge in outrageous activities? In a 21st century
world, such provisions ridicule the concepts of globalization, modernization,
26
Indian Penal Code, 1860, 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 thereby outrage her modesty, shall be punished
with impris-onment of either description for a term which may extend to two years, or with
fine, or with both.
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civilization, liberalism, equity etc. Sexual crimes are at peak and women are
often participants in such crimes, whether it be rape or voyeurism. The excuse
of a masculine body should not be used to prejudice their own masculinity.
Conclusion
The society is changing and so are the crimes against it. The laws in India
were adopted from English laws a long time ago. Since then many changes
are observed in the English laws, however, no such major changes in Indian
criminal laws are observed. Talking specifically about the laws on sexual
offences, though there were some amendments which made punishments and
implementation of such laws stricter, but such changes have failed to bring
equal rights for men when it comes to sexual offences. It is a well settled fact
that laws become obsolete with time, and changes need to be brought to make
them aligned with the changing society. They should respond and cater to
each and every new issue arising from the contemporary society. It is good
that laws against sexual crimes are in favor of women as they are more
vulnerable in being victims, but for a nation following the principle of
equality, it is necessary to have laws which brings equal rights for even men
so that they can also be incorporated as victims in the statutes. As stated
before, such gender biased laws ridicule the concepts of globalization,
modernization, civilization, liberalism, equity that exist in 21st century world.
Sexual crimes are at peak and women are often participants in such crimes,
whether it be as high degree crimes as rape or even low degree crimes like
voyeurism. Hence there is an urgent need to bring in amendments in the
criminal laws dealing with sexual offences to address the cry of such
unrecognized victims. The excuse of a masculine body should not be used to
prejudice their own masculinity.
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COMPETITION LAW – AN OVERVIEW
Srishti Roy Barman 1
Introduction
Competition law was enacted to regulate economic rivalry in between

business entities. It is important to bring and sustain fair competition in the
market for better prospects in matters of economic development of any
country. Since the primitive times, rulers, state officials, governments have
made several attempts to control the competitive markets through tax and
tariffs which has led to various competition law enactments throughout the
globe. Competition also refers to a situation in business where the entities try
to take the patronage of customers in order to achieve their business goals2.
Therefore there was a need of a strict and proper mechanism to ensure fair
trade and business. The Indian market has shifted from regulated economy to
liberalism. For an effective liberalization policy, an anti-competitive
environment was a must. Therefore, a strong anti-competitive regime was
brought through national legislation. Competition Law is structured to
promote and provide a fair chance for healthy competition between
contending competitors in the market and to protect the consumer’s interests.
By the end of 19th century,3 a number of laws were enacted in United States of
America to curtail monopoly from the market. This was a first step towards anti-
1 4th Year, B.A.LL.B (Honors), School of Law, KIIT University, Bhubaneswar.

2 Prashant Kumar, Competition Law in India- An overview, LinkedIn, ( June 16, 2018
, 4:30 PM) https://www.linkedin.com/pulse/20140821065102-73187306-competition-
law-in-india-an-overview
3 Sunipun, The Development of Competition Law in India, Ipleaders,( June 15,2018,
6:00PM) https://blog.ipleaders.in/competition-law-india/
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trust laws. Modern competition law began with Sherman Act, 1890 and Clayton
Act, 1914. In India, the concept of competition law is itself embedded in the
Constitution of India , Article 38 and Article 39 mandate the government to
secure and protect the society where the people will get social, economic and
political justice and it shall address all the organizations of the nation and the
state shall direct its policy as- The ownership and control of material sources are
so distributed as best assist the common good , the economic system does not
operate as it creates as concentration of wealth and means of common detriment.
The Monopolies and Restrictive trade Practices Act, 1969 was enacted to prevent
the expansion and concentration of economic power. India adopted a planned
economic development strategy, a centrally planned economic structure was
initiated. The Industrial ( Department and Regulation ) Act, 1951 empowered the
government in regulating the functions over the private sector prior to the MRTP
Act,1969.On the other hand public sector gained control over coal, oil, gas etc.
The public sector’s growth determined the economy of the countries. Free
competition was not easy due to various governmental policies. There was a
partial approach on the part of the government as it only favored the large
business holders, big public companies only. High tariff and no proper licensing
led to a complete reform of laws regulating such matters. The Preamble of the
MRTP Act preached a socialistic philosophy intended to ensure 4that the

operation of the economic system did not led to the concentration of
economic power to the common detriment. The drawback of the MRTP
Act was it did not cover all the sectors of the economy and that was the
main reason of the adoption of Competition Act, 2002. The Act dealt with
abuse of dominant position, anti -competitive agreements, acquisitions,
4
Supra note 5.
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cartels etc. As the mandate was liberalization, India signed two

important agreements namely, General Agreements on Tariffs and
Trade and Trade Related Aspects of Intellectual Property Rights. It
increased the capacity of various multinational companies join their
hands and expand their business in wider sectors which made the MRTP
act less effective and less important. The Raghavan Committee’s
evaluation on the disadvantages of amendment of the MRTP Act and
advantages of the enactment of the Competition Act, 2002 was the first
step towards fair competition in the market. It was therefore considered
by the committee that drafting a new competition law would be highly
beneficial for the growth and development of the Indian economy. After
the recommendations of the Raghavan 5committee in November, 2000
the Competition Bill was presented before the parliament ,stating the
principles ,reasons and changes to be established through the enactment
of competition law. Finally in the year 2002, the Parliament passed the
competition Act, 2002. Sec 55 of the Act specifically stated the repeal of
the MRTP Act and the transfer of the cases to the new statutory body
‘The Competition Commission of India’. Competition Commission of
India was established through sec 7 of the Act to regulate the
competition. Competition Commission of India (CCI) functions as a
quasi-judicial body and acts as a regulatory body to prevent and regulate
anti-competitive business practices in the country. The body has to
strictly adhere the basic principles of rule of law and abide by respective
precedents while giving decisions on matters of abuse of dominant
5
Akash Choubey & Saurabh Mishra, Competition Law: Glancing Back, Looking Ahead,
EBC India,( June 14,2018,5:30 pm) http://www.ebc-india.com/lawyer/articles/733.htm.
Legal Messenger
position, anti-competitive agreement. However, a Competition Appellate

Tribunal has also been formed namely The Competition Appellate
Tribunal (COMPAT). It is a quasi-judicial body to hear appeal against
the decisions of the Competition Commission of India, headed by a
retired judge of the Supreme Court or the Chief Justice of High Court.
The competition commission of india and sectoral regulators
According to § 18 of the Competition Act, 2002, the primary duty of the

Commission is to eliminate practices which have adverse effect on
competition. It has to promote and sustain competition. It has to protect the
interest of the consumers and also ensure freedom of trade. § 19 (1)(a) of the
Act confers a duty upon the Commission to inquire into matters of anti -
competitive agreements and abuse of dominant position. It can do so on its
own motion or on receipt of any information from any person, consumer, or
trade association. As a statutory duty is vested on sectoral regulators like
Telecom Regulatory Authority of India, The Central Electricity Regulatory
Commission and the Insurance Regulatory Development Authority of India,
The Petroleum and Natural Gas Regulatory Board, it must decide the matter
to fulfill its mandate of fair competition in the market. It cannot be denied that
the competition Commission would have an overriding power over the
matters of competition among entities unless excluded by any enactment.
According to the current trend, both Competition Commission and the other
regulators unilaterally want to govern and regulate in its domain.6 But there
has been instances where the Competition Commission was not allowed to
6
Suhail A . Nathani & Gauri Chabbra, CCI and Sector Specific Regulators, Legal Era,(
June 14,2018,7: 08 PM) http://www.legaleraonline.com/articles/cci-and-sector-specific-
regulators.
Legal Messenger
deal with matters vested upon sectoral regulators.7 In the Case of M/s HT
Media Ltd. v. M/s Super Cassettes Industries Ltd.8 , an information was filed
by M/s. HT Media Limited under section 19(1) (a) of the Competition Act,
2002 ('the Act') against M/s. Super Cassettes Industries Limited ('the opposite
party') alleging inter alia contravention of the provisions of sections 3 and 4
of the Act. The informant claims to be one of the leading media companies in
India. The Informant has alleged that the opposite party, which is the largest
private publisher of Indian music and owns control over 70% of the
Bollywood music is abusing its dominant position by charging excessive
amount of license fee/royalty, imposing minimum commitment charges.
Here, Opposite party (M/s Super Cassettes) contended whether CCI had
jurisdiction over the matter of licensing. In this case, the appropriate authority
to deal with the matter was the Copyright Board, licensing is within the
jurisdiction of the Copyright Board. As the Copyright Board was the sectoral
regulator. CCI didn’t indulge in the matter. Also in the case of Reliance
Industries Ltd v. Indian Oil Corp. Ltd, Bharat Petroleum Corp. Ltd and
Hindustan Petroleum Corp,9 where the informant (Reliance Industries)
alleged that there is a formation of cartel10 in between Indian Oil Corp .Ltd,
7
Kritika Sethi & Akshita Amit, Overlapping Jurisdictions of Regulators in India : A never
ending battle , Competition Law Cirque, Centre for Competition law and policy, NLU
Jodhpur, Issue III,2016.
8M/s HT Media Ltd v. M/s Super Cassettes Industries Ltd. CompLR129 (CCI, 2014).
9 Kritika Dobhal, CCI and Sectoral Regulators, Competition law observer (June 12, 2018,
2:00 PM) https://competitionlawobserver.wordpress.com/2017/06/11/cci-and-sectoral-
regulators/#_edn11.
10 Nikhil Kanekal, Sangeeta Singh &Utpal Bhaskar, Competition Watchdog faces fresh
challenge to jurisdiction, livemint, (June 13, 2018. , 3:00
PM)http://www.livemint.com/Home-Page/aCmjQr8BRwb0W4OQj2TUUK/Competition-
watchdog-faces-fresh-challenge-to-jurisdiction.html.
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Bharat petroleum Corp. Ltd and Hindustan Petroleum Corp ltd. to supply
turbine fuel to Air India. The jurisdiction of CCI in the case was challenged
by the companies before Delhi High Court. Here the companies contended
appropriate authority was the Petroleum and Natural Gas Regulatory Board.
Hence, Delhi High Court stayed CCI from investigating into the matter.
It was held in the case of Vodafone and Others v. Union of India 11that order
passed by Competition Commission of India regarding the contract clauses,
unified license, interconnection agreements, quality of service regulations
among jio, airtel is a matter to be dealt under the TRAI Act. Hence, the order
of the CCI stating that Reliance’s jio services are not anti-competitive by
rejecting the complaint of Bharti Airtel’s complaint of predatory pricing
against Reliance Jio and Reliance Industries Ltd. was without jurisdiction.
There is no overlap of jurisdiction in cases when the competition commission
will have jurisdiction exclusive of matters of competition over the sectoral
regulators.
It was held in the case of Competition Commission of India v. Steel Authority

of India ltd and others, Jindal Steel & Powers Ltd.12 (for short the 'informant')
invoked the provisions of §19 read with §26(1) of the Act by providing
information to the Commission alleging that M/s. Steel Authority of India
Ltd. (for short 'SAIL') had, inter alia, entered into an exclusive supply
agreement with Indian Railways for supply of rails. The SAIL, thus, was
alleged to have abused its dominant position in the market and deprived others
11 Vodafone and others v. Union of India, Comp LR 965(Bom. 2017), 144 SCL 580 (Bom.
2017).
12 Competition Commission of India v. Steel Authority of India Ltd.(5)ALLMR(SC )934(
2010),C ompLR61(SC) 2010.
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of fair competition and therefore, acted contrary to § 3(4) (Anti-competitive

Agreements) and § 4(1) (Abuse of dominant position) of the Act. It was held
that The Commission performs various functions including regulatory,
inquisitorial and adjudicatory. The powers conferred by the Legislature upon
the Commission under §27(d) and 31(3) are of wide magnitude and of serious
ramifications. The Commission has the jurisdiction even to direct that an
agreement entered into between the parties shall stand modified to the extent
and in the manner, as may be specified. Similarly, where it is of the opinion
that the combination has, or is likely to have, an appreciable adverse effect on
competition but such adverse effect can be eliminated by suitable
modification to such combination, the Commission is empowered to direct
such modification. During an inquiry and where the Commission is satisfied
that the act has been committed and continues to be committed or is about to
be committed, in contravention of the provisions, it may issue an order
temporarily restraining the party from carrying on such act, until the
conclusion of such inquiry or until further orders, without giving notice to
such party where it deems it necessary.
The Competition Commission of India exercise wide jurisdiction in the

matters of competition. It was held in the case of Toyota Kirloskar Motor
Private Limited and Others v. Competition Commission of India and others13,
the information has been filed by Mr. Shamsher Kataria, who owns cars
manufactured by the respondent companies. The informant has stated that
cost of getting a car repaired in an independent workshop is cheaper by 35-
50% as compared to the authorized service centers of the company. The
13 Toyota Kirloskar Motor Private Limited and Others v. Competition Commission of

India and others MANU/TA/0062/2016.
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informant has alleged that the respondent companies charge arbitrary and
high price to consumers who are forced to avail the spares and the services
from their authorized dealers only. Also, the prices charged for
repair/maintenance services and for spares by these car companies are even
higher than what they charge in other markets like Europe. The informant has
alleged that the restrictive and monopolistic trade practices, as detailed above,
of the respondents and their authorized dealers/service stations have a
negative effect not only on the consumer but the whole economy because it
increases the cost of keeping a vehicle. The informant has also alleged that
the anti -competitive practices by the respondent companies has resulted in
denial of market access to independent workshops who are usually micro,
small and medium enterprises (MSME). The informant has stated that
MSMEs give employment to 45% of industrial workers. The Competition
Commission of India held that this is in direct contravention of §3(3)(a) and
3(3)(b) of the Competition Act, 2002. By refusing to sell the spare parts to
independent operators the respondents attract§3(4)(d) of the Act. Also the
respondents have denied access to the repair and maintenance market to
independent service providers and therefore such practices attract §4(2)(a),
4(2)(b) and 4(2)(c) of the Act.
It was held in the case of Western Coalfields v SSV Coal Carriers Private
Limited and Others,14 The information in the present case was filed by the
Informant under §19(1)(a) of the Competition Act, 2002 (hereinafter 'the Act')
against the OPs alleging contravention of the provisions of§ 3 of the Act. The
Informant is one of the eight subsidiary companies of Coal India Limited and
14
Western Coalfields v. SSV Coals Private Limited & Others. Comp LR 757 (CCI) 2017.
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has been conferred 'Miniratna' status. It has mining operations spread over the
States of Maharashtra (Nagpur, Chandrapur and Yeotmal districts) and
Madhya Pradesh (Betul and Chhindawara districts).the Commission was
convinced that a prima facie case of contravention of the provisions of
§3(3)(d) read with §3(1) of the Act.
Consumer Online Foundation v. Tata Sky and others15, Dish TV submits that
CCI cannot exercise its jurisdiction in the matter as Telecom Authority of
India and Telecom Disputes Appellate Tribunal was already vested with
“jurisdiction and responsibility to govern and regulate the telecommunication
industry covering telecom, broadcasting and cable TV services….” But
Competition Commission of India held that any matter that raises competition
concerns would fall within the purview of the Competition Act, 2002 enabling
Competition Commission to exercise its jurisdiction in the matter.
Shri Neeraj Malhotra, Advocate v. North Delhi Power limited & others 16, the
anti-competitive behavior of the electricity distribution companies was

alleged, there was clear confusion regarding the jurisdictional authority in
competition related issued. The Discoms alleged before the CCI that only the
Delhi Electricity Regulatory Commission (DERC) under the Electricity Act,
2003 had jurisdiction to deal with the issues relating to anti-competitive
behavior of electricity distribution companies. However, this regulator
appears to be in favor of leaving the competition related issues exclusively in
the hands of the competition authority and retaining the responsibility of
15
Consumer Online Foundation v. Tata Sky and others JT(5)SC 221 2011,5SC C 360(2011),
5SC R911 (2011).
16
Shri Neeraj Malhotra, Advocate v. North Delhi Power Limited & Others Case no. 06/2009,
MANU/CO/0026/2011.
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deciding on the technical issues with themselves. The DERC, in the said case
categorically stated in its communication to the CCI (hereinafter the
Competition Commission of India) that although all matters pertaining to
electricity tariff have to be decided as per the provisions of the Electricity Act
and DERC Regulations, allegations of anti-competitive behavior, including
abuse of dominant position by the Discoms fall within the jurisdiction of the
CCI.
A.The concept of sub judice in matters of overlap of jurisdiction in between

Competition Commission of India and the Sectoral regulators
The principle of Sub Judice17 provides that no court shall proceed with the
trial of any suit in which the matter in issue is directly and substantially in
issue in a previously instituted suit between the same parties and that the court
in which the previous suit is pending is competent to grant the relief claimed.
The object of such rule is incorporated in Code of Civil Procedure in order to
prevent courts of concurrent jurisdiction from simultaneously entertaining
and adjudicating upon two parallel litigation with the same cause of action,
same subject matter and the same relief. It was held in the case of Mr. Awadh
Bihari Singh v. Petroleum and Natural Gas Regulatory Board, 18 the
information in the present case has been filed by the Informant against the
Opposite party under sec 19(1)(a) of the Competition Act, 2002, inter alia
alleging that the amendment by the opposite party to certain regulation
pertaining to gas distribution network will foster anti -competitive
environment and lead to abuse of dominance. The Informant is an engineer
17
C.K.Takwani, Civil Procedure with Limitation Act, 1963 8 (2017).
18
Mr. Awadh Bihari Singh v. Petroleum and Natural Gas Regulatory Board Case no. 75/2013.
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by profession, having experience in natural gas distribution system. The

informant submits that some companies in the City gas distribution business
were in dominant position in this segment. The informant stated that
Petroleum and Natural Gas Regulatory Board has enacted regulations that fail
to conform to the objectives of optimum investment efficiency factor and
could abet anti -competitive regime and gross abuse of dominant position.
Under PNGRB Act, the opposite party has powers to frame regulations to
regulate the sector for which it has been constituted keeping in view the
substantive provisions of the Act. Hence, CCI couldn’t give any decision in
the matter. Therefore, it is humbly submitted in the light of the above
precedent, that Printer Board is competent enough to decide and deal with
matters of competition.
B. Any entity cannot claim in the same matter in two different forum- The
respondent has made an attempt of domestic forum shopping. The concept of
domestic forum shopping occurs when a Plaintiff chooses between two or more
Courts within a single country’s legal system whereas transnational forum
shopping occurs when the choice is between the Courts of two or more countries’
legal systems. 19The Judiciary has time and again condemned the practice of
forum shopping by litigants and termed it as an abuse of law. It was held in
Chetak Construction Ltd v. Om Prakash and Others20, wherein the Court

remarked that any attempt on the part of any litigant to go “forum shopping”
cannot be allowed. A litigant cannot be permitted choice ‘of the ‘forum’
19
Forum Shopping , Vakilno.1, ( June 14,2018,6: 00 PM)https://www.vakilno1.com/legal-
news/depth-analysis-forum-shopping-india.html
20
Chetak Construction Ltd v. Om Prakash and Others (4) SCC 577(1998).
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and every attempt at “forum shopping” must be crushed with a heavy

hand.
C. The commission cannot interfere in the matters before other statutory

authorities.
Each and every statutory authority was set up with different legislative
mandates. Some sector regulators (statutory authorities) were also given the
responsibility to instill competition in the areas under their ambit, an objective
which was later given to the competition authority, when eventually
established. The Competition Commission can not interfere into the matters
that are not within its jurisdiction. The Commission is bound by the limits
framed by the legislators. Some sectoral laws which were enacted after the
Competition Act, 2002, also bestow sectoral regulators with some
competition enforcing functions. It was held in the case of Neeraj Malhotra,
Advocate v. Deustche Post Bank Home Finance Limited (Deustche Bank) and
others.21, The informant alleged that the Opposite Parties are following a
practice and taking decisions in concert for levy of prepayment charges ranging
between 1% to 4% of the outstanding principal amount of the loan/ interest, for
the balance unexpired period of the loan. The informant has alleged that the
above prepayment charges are being levied if borrowers are prepaying the loans
for refinancing its loan from another bank/NBFC at cheaper rate of interest. As
per the informant the said practice of levying of prepayment charges discourage/
prevent the borrower from switching over to another enterprise which is offering
loan at lower rate of interest. CCI notices to banks asking them to explain the
21
Shri Neeraj Malhotra, Advocate v. North Delhi Power Limited & Others 102 CLA
181(CCI, 2011), 1065SCL108 (CCI, 2011).
Legal Messenger
imposition of penalty on borrowers for pre-payment of home loan. CCI ‘s notices
is based on premise the pre-payment penalty acts as a barrier by preventing
customers to shift their loans from one bank to another which offer better interest
rates. In fact just after CCI’s intervention a senior RBI official gave following
statement to medial” We will direct banks to do away with the pre-payment
penalty in case of loan disbursed in Future.” The informant further alleged that
agreement and understanding entered into between the above enterprise/persons
or the practice carried on or the decision taken by the above enterprises/persons
who are engaged in the supply of the similar kind of services, has the effect of
determining prices of the services being supplied by them. 22 The information
alleged that the acts/practices carried on and decision taken by opposite

parties are violative of provisions of the §3(1), (2) & (3) (a) and (b) read with
§4(1), (2)(a)(i) of the Competition Act, 2002 . It was held that RBI is the
regulator of banking industry as per Banking Regulations Act, 1949 and as
such its policy is not subject to interference by a court or tribunal or by CCI.
Only RBI can decide about foreclosure charges levied by banks. CCI has no
jurisdiction in the matter. The RBI is the regulator for banking and it alone
should decide policy about banks. CCI has no jurisdiction in the matter as
RBI is the regulator for banks. Prepayment fines are more in the nature of
unfair or restrictive trade practices and should be dealt with by the Consumer
Courts rather than by the Commission. It was, therefore, stated that the
Commission had no legal jurisdiction.
22
Ibid note 23.
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Abuse of dominant position
Dominance has been defined to be a position of economic strength which

enables it to prevent effective competition in the relevant market, it must be
able to work independently of its competitors. Under § 4 of the Competition
Act, 2002 the abuse of dominance position is the genus and predatory pricing
is the species. It is defined as prices below the marginal cost or average
variable cost to drive competitors out of the market. There is always a danger
of confusing the pro-competitive pricing with predatory behavior. In
generality of cases, however, predatory pricing is indulged in an endeavor to
eliminate existing rivals and prevent entrants. In the case of United Brands v.
Commission,23 it was held that it is essential to equate dominance with
substantial market power. It is very likely that very high market shares, have
been held for some time, indicate a dominant position. If an undertaking holds
more than 50% of the market shares in the relevant market it would indicate
a dominant position provided that rivals have a much smaller share of the
market. It was held in the absence of exceptional circumstances pointing the
other way, an undertaking with such a market share will be presumed
dominant. .24 In the case of Pan India v. BCCI,25 the CCI held that the abuse
by BCCI was of a grave nature and the nature of barriers created by the
dominant enterprise against entry of the competitors into the market. BCCI
undermined the moral responsibility of a custodian and a de facto regulator.
The dominant position in the relevant market refers the one that has power to
23
United Brands Commission Case 27/76[1978] ECR 207, [1978] 1 CMLR 429.
24
Arjorie Holmes & Lesley Davey, A Practical Guide to National Competition Rules across
Europe 1(2007).
25 Pan India v. BCCI Case No. 61 of 2010.
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disregard all market forces and take independent actions from prevailing
forces. An enterprise holding high market shares does not necessarily enjoy
dominant position.26 The determining factor of a dominant enterprise in the
relevant market is a pre requisite to enquire into abuse thereof. The
Competition Act of 2002 mandates the CCI to look into a host of factors
which gives rise to enormous issues and challenges in deciding dominance.27
The dominant position is a position of economic strength enjoyed by the
enterprise which enables it to prevent effective competition being maintained
on the relevant market by giving it the power to behave to an appreciable
extent independently of its competitors, customers and consumers.28 The
determination of abuse of dominance is a three stage process-
 Determination of the Relevant Product Market/ Geographic Market

 Determination of the ‘Dominance’ in the relevant market
 Determination of abuse
The abuse of dominance has been categorized into many types. A firm or
enterprise in its dominant position will make it difficult for potential entrants.
According to Michael E. Porter 29There are five conditions to establish abuse
of dominance.
a) The threat of substitute products or services
26 S.N Dungar Guide to Competition Law 5(2010).

27 G.R.Bhatia, Assessment of Dominance: Issues and Challenges under the Indian
Competition Act, 2002, Luthra, (14 June, 2018, 1:36PM)
http://www.luthra.com/admin/article_images/Manupatra-CLR-Dominance-GRB.pdf.
28 United Brands v. Commission, [1978] C.J. Comm. E. Rec. 207, at para. 65.
[1977-1978 Transfer Binder] COMM. MKT. REP. (CCH) 8429.
29 Michael E. Porter, The Five Competitive Forces that Shape Strategy, Harvard Business
Review 86 (1979).
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b) The threat of the entry of new competitors

c) The intensity of competitive rivalry
d) The bargaining power of customers (buyers)
e) The bargaining power of suppliers
These factors determine how an enterprise or firm can abuse its dominant
position. Any one of the factors can prove whether the firm is in a dominant
position or not. It has been held in the case of M/s Transparent Energy
Systems v. Techpro Systems Ltd.,30 the low level prices must have an object
of driving out competitors from the market. They would be unable to compete
at that price. There is always a significant planning to recover losses if any
after the market rises again and competitors have already been forced out.
A. Market share is not a conclusive factor to determine the dominant

position
According to Raghavan Committee Report ‘specifying a threshold or an

arithmetic figure for defining dominance allows real offenders to escape or
result in unnecessary litigation. Hence in a dynamic changing environment,
a static arithmetical figure to define dominance would be an aberration’.31
There is no single objective market share criteria that can be blindly used as
a test lf dominance. In the case of AKZO Chemical BV v. European
Commission32, United Brands Case33 and Hoffman La Roche34 it was held
30 M/s Transparent Energy systems v. Techpro Systems Ltd Case no.9 of 2013.
31Raghavan Committee Report
32 AZKO Chemical BV v. European Union, Judgment of the Court (Fifth Chamber) of 3
July 1991 Case C-62/86
33 Supra Note 25.
34 Hoffmann v. La Roche(1979) ECR 461
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that to establish that market share is important, it is only one of the indicators
from which the existence of a dominant position may be inferred.
B. Occupying a mere dominant position is no violation of law
Each enterprise or group as defined under §4 of the Competition Act, 2002

can hold a dominant position but the power to control prices does not
necessarily mean the power to set prices at any level, regardless of consumer
reaction, it is not normally a feature of economic power, even power would
be universally regarded as constituting dominance.35 The power to set prices
any level, regardless of consumer reaction is not normally a feature of
economic power even power which would be universally regarded as
constituting dominance.
In the United Brands case36 the court held that the ability to continuously to
charge higher prices than competitors was a particular feature that a proof of
dominance although it was clear that United Brands could not have set its
prices at any level it liked . It is not power to eliminate competition which is
a test of dominance, it is the power to interfere with effective competition.
Having a dominant position is no violation of law. Dominant position itself is
not an abuse or a restrictive trade practice.37 It has been upheld in Alcoa
Case38 ‘’A single producer may be the survivor out of a group of active
competitors, merely by virtue of his superior skill, foresight, and industry. In
such cases a strong argument can be made that, although the result may
35
John Temple Lang Some, Aspects of Abuse of Dominant Positions in European
Community Anti-Trust Law3 FORDHAM INTERNATIONAL LAW JOURNAL 13 (1979).
36 Supra Note 35.
37 Sec 2 of the Sherman Act and EC competition Law.
38 Alcoa148 F.2d 416.
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expose the public to the evils of monopoly. The successful competitor, having
been urged to compete must not be turned upon when he wins. Therefore, if
the goods are placed at a lower price because of the economies of scale and
even less profit from a single good gives them more profit, in total, as their
sales are comparatively much higher, they cannot be accused for abuse or
predatory pricing.’’
There are a no. factors which determine the dominant position of an enterprise
– the size and resources of an enterprise, the economic power of the
enterprise, extent of entry and exit barriers in the market, market structure and
size. Therefore even if an enterprise manages to fulfill this given conditions,
it very well is in a dominant position but it cannot lead to abuse of that
position unless it satisfied the conditions given under §4 (2) of the
Competition Act 2002.39
C. Unfair or Discriminatory price is not always predatory in nature.
Predatory pricing is pricing one’s goods below the production cost to

eliminate other players in the market.40 The essence of predatory pricing is
pricing below one’s cost to eliminate the rival.41 A definite test to determine
predatory pricing in India was missing. In Johnson’s case, The Director
(Research) found that the complainant was also not keeping proper
39 http://www.cci.gov.in/sites/default/files/advocacy_booklet_document/AOD.pdf (13
june,2018,9.30 PM )
40
Kumar Harshvardhan ,An Analysis of the Law relating to Predatory Pricing.in India ( 15
June,2018,5:00
PM)http://www.manupatrafast.com/articles/PopOpenArticle.aspx?ID=3e7817b5-23f9-
4313-9ac0-fd94a329de45&txtsearch=Subject:%20Competition%20/%20Antitrust
41 In Re: Johnson And Johnson Ltd. And ... vs Unknown on 29 July, 1986; 1988 64 CompCas
394 NULL.
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accounting records. However, the Director (Research) made an attempt to

calculate the cost of production of some of the items and found that it was
higher than the cost of production of Johnson and Johnson in respect of the
same items. The Director (Research) opined that this was attributable to the
higher cost at which SMB obtained its raw materials, as compared to the cost
incurred by M/s. Johnson and Johnson. It was held that Johnson and Johnson
could not be charged with the restrictive trade practice of predatory pricing.
The statutory law of India is more based on the UK model but the Indian
judges have relied on the US Model for various judgements.42 The CCI has
relied on the US Supreme Court and ECJ judgments to adjudicate matters on
predatory pricing. In the Johnson case the CCI looking into various foreign
judgments came up with a two prong test of recoupment and driving
competitors out of the market, or having intention in doing so. This test has
been reiterated in the case of Brooke Group Ltd. v. Brown and Williamson
Tobacco Corp43and in the case of MCX Stock Exchange44 that the claimant
must demonstrate the scheme could actually that the scheme could actually
drive the competitors out of the market and there must be evidence that the
surviving monopolist could then raise prices to consumers long enough to
recoup his costs without drawing new entrants to the market. It was held that
in the absence of evidence to support the likelihood of recoupment of
predatory prices, there can be no reasonable prospect of recouping the
investment.
42 Ibid note 39.

43 Brooke Group Ltd. v. Brown and Williamson Tobacco Corp 509 US 209 (1993)
44 MCX Stock Exchange v. NSE (114) BOMLR1002 (2012).
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Most firms dominant or not can engage in below cost pricing and loyalty
discounts. New entrants commonly engage in such practices with a new idea
and a superior product which changes the status quo of the market. Such
enterprises which lift a large consumer base can be held to be erroneously
dominant and are abusing their position of power.45 It’s below cost pricing
and discounting schemes merely provide incentives for the distributors to
purchase their products. Innovative pricing and such similar business
strategies allow them to increase demand and supply in an existing market.46
Actions that are considered anti-competitive in nature and illegal in the

context of agreements are also illegal, if undertaken by a dominant firm.
These would include charging unfair prices, restriction of quantities, markets
and technical development. Discriminatory behavior and other exercise of
market power leading to prevention, restriction or distortion of competition
would obviously be included.
Predatory pricing is resorted to have sole control of market power. In order to

make out a case on predatory pricing, it is necessary for a party to show as to
the cost of providing services to the party who resorted to predatory pricing
and how the cost at which service was being provided to the customer was
lower than the cost to the party.47
D. The Incremental Cost Test
The improved test known as the Incremental Cost Test (ICT), works by
offering harbor to any bundle whose incremental price is at least as great as
45 Ibid note 46.

46 Fast track Call Cab Pvt. Ltd. v. ANI Technologies Pvt. Ltd.; Case No.6 and 74 of 2015.
47 H.L.S. Asia Limited, New Delhi vs Schlumberger Asia Services Ltd; Case No. 80/2012.
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its incremental cost. This test is based on the assumption that total profits will
not fall if the bundled sales are at least as profitable as individual sales of the
primary good.48 If the firm does not pass the ICT test the bundled discounting
would be predatory in nature. The ICT is based on the fact that total profits
will not fall if the bundled sales are least profitable as individual sales of the
primary good. For ex. if the goods A and B are sold for Rs. 1000 each but the
bundles of both the goods are sold for ONR 1500. So the ONR 500 increase
in price when good B is added to the bundle should be sufficient to cover B’s
incremental cost. 49
E. Mala fide intention of eliminating competition from the market
The fundamental test which determines if there is discriminatory pricing is

the intention of eliminating competition and by creating a transitory phase of
low pricing which a competition may not be able to withstand. Price reduction
which may have to be resorted to survive in the competition market or to meet
predatory pricing policy pursued by other competitors, would not be a
restrictive trade practice liable to be struck down.50 In the case of Matsushita
Electric Indus. Co., Ltd. v. Zenith Radio Corporation51 the court failed to
consider the absence of a plausible motive to engage in predatory pricing. In
the absence of any rational motive to conspire neither petitioners’ pricing
practices. The penalty for predatory pricing cannot be charged with
ambiguous evidence of the said conspiracy. Every market is unique with a
unique no. of players that are determined organically by competitive forces.
48 427 F. Supp. 1089 (E.D. Pa. 1976), aff'd, 575 F.2d 1056 (3d Cir. 1978).
49 Supra Note 25.
50 Supra Note 37.
51 Matsushita Electric Indus. Co., Ltd. v. Zenith Radio Corporation 475 U.S 574, 1986.
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There can be no sacrosanct no. of firms that ensures presence or absence of

competition. There can be markets which may not be competitive even with
large number of players and equally possibly there can be markets which can
work perfectly well with fewer players, constraining the conduct of each
other.
Actions that are considered anti-competitive in nature and illegal in the

context of agreements are also illegal, if undertaken by a dominant firm.
These would include charging unfair prices, restriction of quantities, markets
and technical development. Discriminatory behavior and other exercise of
market power leading to prevention, restriction or distortion of competition
would obviously be included. It has been held that52 the low level prices must
have an object of driving out competitors from the market. They would be
unable to compete at that price. There is always a significant planning to
recover losses if any after the market rises again and competitors have already
been forced out.
Ivan Anti-Competitive Agreement Between Entities
According to §3(1) of Competition Act, 2002 , No enterprise or association

of enterprises or person or association of persons shall enter into any
agreement in respect of production, supply, distribution, storage, acquisition
or control of goods, or provision of services which causes or likely to cause
an appreciable effect on competition.
52 Supra note 32.

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B. An exclusive supply agreement
An “agreement” is defined in §2(b) of the Competition Act ; as any

arrangement, understanding or action in concert(i) whether or not, such
arrangement, understanding or action is formal or in writing ; or (ii) whether
or not such arrangement , understanding or action is intended to be
enforceable by legal proceedings .An exclusive supply agreement includes
one that restricts the purchaser from acquiring any goods or service from
anyone other than the seller or any other person who may be nominated53.§ 3
of the Act places an embargo on a person, enterprise or their respective
associations from entering into any agreement in respect of production,
supply, distribution, storage, acquisition or control of goods or provisions of
services which cause or likely to cause appreciable adverse effect on
competition within India. Specifically, §3(1) prohibits anti-competitive
agreements which are treated as void by virtue of §3(2). §3(3)(b) stipulates
that any agreement which limits or controls production, supply, market,
technical development, investment or provision of services is anti-
competitive in nature. §19(1) empowers the CCI to enquire into such
agreements based on factors mentioned in 19(3) which, amongst others, are
agreements which create barriers to new market entrants or foreclose
competition by hindering entry into the market.
An agreement providing for refusal to deal includes any agreement that

restricts by any method, the persons or classes of persons to whom goods may
be sold or from the goods may be bought. Market power is the power to force
a purchaser to do something that he would not do in a competitive market
53 Competition law in India, Oxford.

Legal Messenger
54
.In the instant case, the there is an exclusive supply agreement existing
between the defendants, competition had been foreclosed in a substantial
share of the line of commerce55. Determination of the relevant competitive
market was the prime factor in deciding whether the contract foreclosed
competition in a substantial share of the line of commerce involved56.
Every agreement concerning trade, every regulation of trade that restrains to

bind is the very essence of an anti-competitive agreement. The true test of
legality is whether the restraint imposed is such as merely regulates and
perhaps and thereby promotes competition or whether it is such as may
suppress or even destroy competition.57 In the case of agreements set out in
§3 (4)(a) to (e) , viz tie in arrangements, exclusive supply agreements,
exclusive distribution agreements, refusal to deal and resale price
maintenance, they shall be in contravention of §3 (1) , if they cause of likely
to cause an appreciable adverse effect on competition in India, meaning
thereby that they shall be examined by the rule of reason .
Under the rule of reason, the effect on competition is found on the fact of the
case, the market, and the existing competition, the actual or probable limiting
of competition in the relevant market. The respondents were involved in
unfair method of competition such as a local price cutting at the points where
necessary to suppress competitors.58 Here, the exclusive contract
unreasonably restrain competition and tend to monopoly.59 The true test of
54 Eastment Kodak Company v. Image tech, 112 S Ct. 2072 (1992).

55 Standard oil company of California vs. United States, 221 U.S. 1 (1911).
56
Tampa Electric Co. v. Nashville Company, 365 U.S 320 ( 1961).
57
Board of Trade of City of Chicago v. U.S., 261 U.S. 231 (1918).
58
Standard Oil Co. of New Jersey v. U.S. 221 U.S. (1991).
59
FTC v Motion Pictures Advertising Service Co., 344 U.S. 392 (1953).
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legality is whether the restraint imposed is such as merely regulates or perhaps

thereby promotes competition or whether it is such as may suppress or even
destroy competition. To determine competition that the court must ordinarily
consider the facts peculiar to the business to which the restraint is applied, its
condition before and after the restraint was imposed, the nature of restraint
and its effect actual or probable.60 The history of the restraint, the reason for
adopting the particular remedy, the purpose or end sought to be attained are
all relevant facts. This is not because a good intention will save an otherwise
objectionable regulation or the reverse but because knowledge of intent may
help the court to interpret facts and to predict consequences.
C. Agreement to sell at a fixed minimum price is the preferential discount

scheme in between entities
There has been process of interlocking restrictions by which the defendants

seeks to control not merely the process at which its agents may sell its product
, but prices for all the sales by all the dealers at wholesale or retail, whether
purchase or sub purchasers, and thus to fix the amount the consumer shall pay
eliminating all competition.61 It is to ascertain the effect on competition of an
agreement stated as being anti-competitive, the first step is to determine the
market where the competition is complained o as having been adversely
affected. The market taken into consideration for this purpose is called ‘the
relevant market’.
60
Tata Engineering and Locomotive Co. Ltd v. Registrar of Restrictive Trade Agreement.
1977, AIR 973.
61 Dr. Miles Medical Co. v. John D. Park and Sons Co. 220 U.S. 373 (1911).
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The relevant market is to be divided into the relevant product market and the
relevant geographic market relating to product or service supplied. Once the
boundaries of the market are determined in this manner, the effort of the
agreement said to be anti-competitive is to be considered, that is whether it
has reduced existing competition or eliminated competition in the supply of
the product or service in the relevant market. The European Commission’s
Notice of 9 December 1997, on the definition of the relevant market for the
purposes of Community competition law states: ‘Basically the exercise of the
market definition consists in identifying the effective alternative sources of
supply for the customers of the undertakings involved, both in terms of
product/ services and geographical location of suppliers. In situations where
an agreement providing apparent efficiencies allow the enterprise to create
structural entry barriers and consequently eliminate the competitive process,
the Commission must look beyond the immediate short term efficiency goals
of such alleged anti-competitive agreements. It is pertinent to appreciate the
long lasting anti-competitive effects, if any, of such agreements in the market
in which they operate.62
C. The exclusive agreement is also used for benefit the entities of market and
ensure fair competition and uplift the economy.
Vertical restraint on intra brand competition is very necessary to enable a

supplier to protect its distributors from free riders.63 It leads to increased sales
and minimization of distribution costs. It is therefore observed that a supplier
will impose vertical restraints on intra brand competition only where it is
62 Shamsher Kataria v. Honda Siel Cars India Ltd. , Case no. 03/ 2011.
63 Alison Jones and Brenda Sufrin, EU Competition Law 4(2011).

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necessary to enhance its sale of products and encourage inter brand

competition. It is also important in order to persuade consumers and improve
its distribution efficiency as well as increase its output. It is essential for a
retailer’s reputation in providing high quality services and stocking high
64
quality products for better future prospects. In vertical restraints,
competition concerns can only arise if there is insufficient competition at one
or more levels of trade.
In order to determine whether any agreement is in contravention of§ 3(4) read

with §3(1) of the Act, the following five essential ingredients of § 3(4) have
to be satisfied65:
a. There must exist an agreement amongst enterprises or persons,
b. The parties to such agreement must be at different stages or levels of
production chain, in respect of production, supply, distribution, storage, sale
or price of, or trade in goods or provision of services,
c. The agreeing parties must be in different markets,
d. The agreement should be of the nature as illustrated in clauses (a) to (e) of
sub-section 4 of §3 of the Act,
e. The agreement should cause or should be likely to cause appreciable
adverse effect on the competition.
D. Benefits outweighs the possible adverse anti-competitive effect that an

agreement may cause
64 Id. at 638-640.
65Automobile Association v. Global Automobile Limited, Case no.33/2011.
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66
§19(3)(d) to (f) of the Act deals with :benefits to the consumers,
improvement in production or distribution of goods or provision of services,
promotion of technical, scientific, and economic development by means of
production or distribution of goods or provision of services. The vertical
restraints are imposed to overcome free riders problem, to prevent free riding
on pre sales services. The certification free rider issue , to introduce a new
product on a market particularly by selling through retailers that have a
reputation for selling only “quality products”, to deal with the “hold up
problem”67 and encourage client specific investments and innovation, to
protect know how of an agreement that might get transferred through a supply
agreement. The manufacturer may wish to ensure that retailers are not pricing
too high or make too little sale efforts as increased sales also benefits
manufacturers by bestowing a positive externality on it. In a quality-driven
market, brand image and goodwill are important concerns and it appears a
prudent business policy that sale of products emanating from unknown/
unverified/ unauthorized sources are not encouraged/allowed.68 The
agreement entered into between parties does not contain a clause restraining
the other competitors from taking dealership.69 Vertical restraints are subject
to rule of reason approach, which reflects the fact that such restraints are not
always harmful and may in certain cases produce beneficial effect in a
particular market. An adverse effect on competition can only be determined
if it passes the litmus test of agreements or arrangements that can manipulate
a free and fair market. Rule of reason can be summarized so as to assess the
66 Competition Act,2002
67 Supra note 61.
68 Ashish Ahuja v. Snapdeal.com, Case no. 17/ 2014.
69 M/s Nanavati Wheels Pvt. Ltd v. M/s Hyundai Motor India Ltd., Case no. 67/2013.
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pro or anti -competitive nature of vertical agreements; the competition

authority will evaluate the legality of the practice with reference to its
economic effects on the relevant market and the position of the operators in
those markets. According to this rule, the fact-finder determine whether the
restraint's anti-competitive effects unreasonably outweigh its potentially pro-
competitive effects. Exclusive distribution agreements includes any
agreement to limit, restrict or withhold the output, supply of any goods or
allocate any area or market for the disposal of sale of the goods. Imposing
restriction concerning where or to whom or in what form or quantities of
goods supplied or other goods may be resold, could be anti-competitive that
is exclusive territory or territorial market restriction. Such restriction is found
in agreement by which a manufacturer restricts the retailers to competing on
the distribution of its products. For analyzing the allegations under §3 of the
Act, it is necessary to first establish an existence of an agreement /
arrangement amongst the Opponents. Once an agreement is established, the
next step will be to see whether such agreement / arrangement causes or is
likely to cause appreciable adverse effect on competition in India70.
CCI (hereinafter the Competition Commission of India) had in many

decisions contended that the agreement should be such as the other
competitors are adversely affected. In the case of Shri Jyoti Swaroop Arora
Vs. M/s Tulip Infratech Ltd. & Ors.71, in the absence of any evidence to
establish understanding, arrangement or action in concert between the
individual enterprises, cannot be held to be anti-competitive in terms of the
70 Deepak Verma Vs. Clues Network Pvt. Ltd., Case no.34 of 2016.
71Shri Jyoti Swaroop Arora Vs. M/s Tulip Infratech Ltd. & Ors Case no. 59 of 2011 in
reference with Sameer Agarwal v. Bestech India, Case no. 59 of 2016.
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provisions of §3(3) read with §3(1) of the Act and the said order of the
Commission has been upheld by the Hon’ble Delhi High Court. Analysis of
the information has not revealed any anti-competitive agreement, be it at
horizontal or vertical level, therefore the Commission observes that no case
has been made out against the Opposite Party either under§ 3(3) or 3(4) read
with§ 3(1) of the Act. The view that the some entities does not possess market
power to act independently of competitive forces prevailing in the relevant
market or to affect its competitors or consumers in its favour72. CCI has
investigated the matter and had come to a conclusion. It was not for restraint
but the growth of trade, so that the products are easily available to the
consumers.
V. Competition law and intellectual property rights
Competition law works for the protection of fair trade practices in the market.
On the other hand, Intellectual property rights gives an individual an
exclusive rights over his property and its interests. Competition law is
emerging as a specific field to control economic power in the marketplace
and on the contrary, Intellectual property rights is giving exclusive economic
benefits to an individual over his property, its scope is expanding to larger
marketplaces. It has created a tussle between these two specific fields and is
an emerging issue. The debate is regarding the use of Intellectual property
rights is affecting the competition in the market. The application of
intellectual property protection in matters of competition has always been a
complicated matters in proper implementation of competition law.
Technological advancements have made a room for abuse of intellectual
72 Oberoi Cars vs Imperial House Builders, Case no.60 of 2016.

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property rights through monopoly and it has caused unfair competition in the
marketplace. There are significant case laws in UK and EU. It has emerged
from the traditional notions behind the subject matter of the two domains
without deep scrutiny of its background. IPR is usually taken as a tool to
confer exclusive monopoly thereby preventing others from participating and
offering products in the market. 73 In the words of a reward theory, Intellectual
property rights has always followed the policy of promotion of individualistic
interests , it means to grant exclusive benefits to an individual and excluding
others from exploitation or any kind of use over his property. But even if
Intellectual property laws are made to benefit an individual and competition
law for a greater good, both of them aim for a common goal and that is
increase in innovational skills along with economic welfare. As competition
law is essential for liberalization and growth of the economy of a country,
Intellectual property rights imposed a threat by a misuse of exclusive
economic rights, therefore a harmonization of principles of competition law
and laws governing intellectual property. In India, an attempt to balance
between these two specific fields was done through the enactment of
Competition Act, 2002. According to the provisions of the Competition Act,
there is no abuse of dominance if no harm is caused in the market place, no
adverse effect on the competition can be witnessed, but it can be distorted if
an IPR holder abuses his dominant position over the property and violates the
principles of competition law. It is considered that an intellectual property
rights owner is in a dominant position in terms of competition law.
73 Ruchi Verma & Shanya , Clash between Intellectual property law and competition law-
A critical Analysis, , ( June 17,2018,9:00 PM)
http://www.rslr.in/uploads/3/2/0/5/32050109/clash-_ipr_and_competition_law.pdf
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Intellectual property rights and competition law are like two sides of a same
coin. Though both fields have specific subject matters to deal with but one
comes in the way of the other, Intellectual property rights curb competition
from the market whereas, competition law was made to control and prevent
unfair competition in the market. A balanced approach in between the two is
one of the most difficult areas of competition law. Both disciplines promote
dynamic efficiency, a system of property rights and market rules that create
74
appropriate incentives for innovation, invention and creation. The
dominance of an Intellectual property holder may be abusive in nature but is
legal in the eyes of Intellectual property laws. However, judicial
interpretations has deducted various conclusions in this issue. It was held in
the case of Paramount Pictures, that the ability of a licensee to get license in
one or more intellectual property goods and incur benefit from other licensed
goods held to be “illegal tying”. 75The court also held that a copyright may no
more be used than a patent to deter competition between rivals in the
exploitation of their licenses.76 But on the contrary, it was held in the case of
A& M Records Inc v. Napster Inc,77 it was conferred from the decision that a
copyright can be said to be a way to curb the development of a derivative
market out of a licensed work but it need not be an anti -trust violation always.
In Eastman Kodak Co. v. Image Technical Services, Inc.78, also it was held
that “power gained through some natural and legal advantage such as a patent,
74 K.D.Raju, The Inevitable Connection between Intellectual property and Competition

laws, Journal of Intellectual property laws, Vol.18, Mar. 2013, pp.111.
75 Ibid note 76.
76White Motor Co. v. United States, 372 US 253, 262-263; Northern Pac. Ry. Co. v.
United States, US.1, 6-7 (1958).
77 A& M Records Inc v. Napster Inc 239 F.3d 1004, 1026-27(9th Cir.2001).
78 Supra note 57.
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copyright, or business acumen can give rise to liability if ‘a seller exploits his
dominant position in one
Market to expand his empire into the next.” It was discussed in the famous
Microsoft Case, the interface between the Competition law and Intellectual
property rights was discussed at length, and EU invoked competition rules for
the common welfare and protection from absolute rights of Intellectual
property. This caused a shift in the paradigm and brought changes in the EU
regimes of competition laws. The Competition/IPR interface finds expression
in Article 82 (present Article 102) of the EC treaty, which Prohibits
undertakings with a dominant position on a particular market from conducting
themselves in a way which amounts to an abuse of their market power, in
circumstances where the abusive conduct is incapable of objective
justification.79 The case started from December, 1998 where a complaint was
filed by Sun Microsystems alleging that Microsoft has refused to supply
information necessary to operate Microsoft’s dominant PC operating system.
The European Commission conducts an investigation against the Microsoft
and found that there was an abuse of dominant position in pursuant to article
82 of the EC Treaty. Therefore, The Company was held liable for abuse of
dominant position in the PC Operating system market. Similarly in India, it
was held in the case of Aamir Khan Productions ltd.80 , that the Competition
Commission of India has the jurisdiction in the matters of Intellectual
property laws and is a competent authority to do so.
FICCI filed information against united producers/distributors forum
(hereinafter called as UPDF) and others for market cartel in films against the
79 CFI , Case T-201/04, Microsoft v. Commission , September 17, 2007.

80 Aamir Khan Productions ltd case 2010 (112) Bom LR 3778.
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Multiplexes. Such cartels were formed in order to raise their revenues, UPDF
refused to deal with multiplex owners. UPDF was indulged in
limiting/controlling supply of films in the market by refusal to deal with
Multiplexes. It is held to be in violation of §3(3) of Competition Act 2002.
Conclusion
Competition law was enacted to control anti - competitive practices, abuse of

dominant position, cartelization, mergers, predatory pricing. After going
through various changes brought within the national legislations, it has
become mandatory to bring a balanced approach in between competition law
and Intellectual property law, both can co-exist and operate at the same time.
Situations where abuse of monopoly rights is concerned, competition law will
come in force to deal with such complications within the marketplace in order
to maintain the liberalized economy. Competition law has come up to be the
most efficient counterbalance in matters of protection of Intellectual property
rights. The TRIPS agreement plays a major role in the interplay between
competition law and intellectual property rights, it provides with a basic
framework for the enforcement of anti – competitive agreements, licensing
practices and in giving intellectual property protection mechanisms. Article
8(2) of the Agreement gives a general direction that appropriate measures
may be needed to prevent the abuse of intellectual property rights by its
holders. Article 40 (1) recognizes that licensing practices which restrain
competition may have adverse effect on trade or impede technology transfer.
81
Article 40(2) permits the members to specify anticompetitive practices
81 Supra note 76.

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constituting abuse of IPRs and to adopt measures to prevent or control such

practices. Article 31(k) clearly provides that a practice determined after
judicial or administrative process to be anti-competitive, a compulsory license
can be granted.
In India, the Competition Act, 2002 has also incorporated provisions to bring
a balance and therefore in few cases, Competition law is not applicable to
intellectual property rights.
In comparison with the US and EU laws of competition, India has followed
the European model. Article 85 of the Rome Treaty and Section 1 of the
Sherman Act prohibits agreements in restraint trade. In U.S, price fixing
related cartel is treated penal in nature and huge damages were paid. EU law
is with many exceptions and the enforcement is very liberal. Regarding the
matters of jurisdiction between the Competition Commission and sectoral
regulators, in India, both can exercise jurisdiction in matters of competition.
However, in U.S and E.U, any competition matter will be exclusively decided
and dealt with the competition authorities.
Legal Messenger
SHEELA BARSE V. STATE OF MAHARSHTRA

Siddharth Khaira
Yukti Kohli 1
PETITIONER:
SHEELA BARSE
Vs.
RESPONDENT:
STATE OF MAHARASHTRA
DATE OF JUDGMENT: 18 SEPT 1987
BENCH:
MISRA RANGNATH
CITATION:
JT 1988 (3) 15
The judgement on the instant case was forwarded by RANGANATH

MISRA.
The petitioner is stick to the work of journalist who is from Bombay and had
sought permission from Maharashtra jail to interview the women prisoners in
the jail. The Inspector General of prison on 6th May 1982 of state permit has
given the permission to the petitioner to interview in respect of female
prisoners embed in Bombay Central Jail, the Yerawada Central jail at Pune
and the Kolhapur district jail. When the petitioner started interview in the
Prisons in the Bombay Central Jail she started tape recording the interview,
she was then advice to stick to notes as a substitute rather than tape recording
the interview. The petitioner criticized this on the score and on this, the
Inspector General of prison by work of mouth indicated that he had changed
1
Students, Jagran Lake city University Bhopal.
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his mind. The Inspector General of prison informed the petitioner that the
grant of permission to interview the women prisoners was a matter of caution
and only research scholars are allowed to do so. The petitioner on knowing
the same about the permission withdrawal has made grievances and pleaded
that it is every citizens right to know if the government is working in
accordance with law in the matters of jail. The letter issued by the petitioner
was considered under article 32 of the Constitution as a writ petition.
The Inspector General has pointed out that the journalist is not engaged
by any censurable newspaper and the permission that was issued in respect of
petitioner was just a mistaken belief and was under administrative
misapprehension and was in complete infringement of the Maharashtra prison
manual. As soon as this was unlocked the permission to interview the woman
in the prison was withdrawn. The Inspector General intervene by saying that
the rules mentioned in the Maharashtra prison manual governed the interview
and the prescription mention there in was not satisfied by the petitioner and
therefore the permission to interview was withdrawn. The Inspector General
in writing on 31st May 1982 mention to the petitioner that only a person who
is a research scholar pursuing PhD or who visits the prison because of their
field work of modulus prescribed for PG courses was normally allowed to
interview the prisoners by the prison authority, the letter also included that
only relatives and legal Advisors where lenient to interview the prisoners so
that they can be provided with defence. Inspector general further indicated in
the letter that the journalist has no right to extort information from prisoners.
The State Government has recommended a set of rules which are well known
as the Maharashtra Visitors of Prisons Rules, 1962. The same factors were
indicated in the counter affidavit that every jail constitutes of a board of
visitors and it consists of both the ex-officio visitors and the non official
visitors which are appointed by the State Government. The members of the
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board are appointed to inspect encampment, cell wards, work sheds and other
buildings. They also observe the well being, sterility, security of prisoners
and they also examine the registers of condemned and under trial prisoners
punishment books and all the other matters or record related to the prisoner.
They also see to the objection made by the prisoners and record the
information about the visitors. In the counter affidavit it was mentioned that
the petitioner was an amateur journalist who had already published a certain
articles in the newspaper and magazine without even realising the impact of
the same. The articles which was published was accusation nature on one side
and of misjudgement nature on the other. The articles were of defamatory
nature and show the nature of the journalist as they were reckless articles.
Mr. Salman Khurshid Ahmed was presenting the case on the behalf of the
petitioner and Mr. Bhasme was presenting it on the behalf of State that is
Maharashtra, the written submissions were considered as file on behalf of
both in progression of the submission.
The petitioner said that reasonable access to information about the

institutions that implement and force the laws of the land is guaranteed to
each and every citizen of India under article 19 and 21 of the Indian
Constitution. Public Institutions are the means to receive information on the
public matters and it includes media, as it is impossible to issue information
relating to public interest to each and every citizen physically, individually
and personally and therefore the journalist, that is; the petitioner has a right
to collect and disperse information to the citizens of India. The responsibility
of educating the citizens on public at large is of the press. The society has the
obligation to ensure that all the jails maintain appropriate standards and have
humane conditions therein. For maintaining and improving the condition in
the jail the government has to provide access to citizens and media which is
possible only in a participatory democracy.
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The state opposed by saying that neither article 19(1)(a) nor article 21 of
Constitution is related to a matter of this type. The interest of prisoners are
safeguarded by the rules mentioned by the government. The rule consists of
both executive and judicial officers and was added by the board while
pleading. The rule 5 of Maharashtra rules also safeguarded the prisoners,
which includes what a visitor is supposed to do and what all functions can a
visitor perform and the duties of the visitors. Prisoners are separated from the
communities so that the prisoners can be in strict control. If there is a
haphazard and undisciplined rights given to the citizen who can visit the
prisoner it will become difficult and the purpose to keep slack would be
frustrated.
In Prabha Dutt v. Union of India and ors.,2 the court considered the claim of
journalist who interviewed two condemned prisoners. In this case it was
observed that “the right conferred in Article 19(1)( a) of Constitution that is;
right to freedom of speech and expression is not an absolute right but it
includes freedom to press and it does not provide an unrestricted access to
means of information.”
When a press exercise its mean to right of freedom of speech and expression
by publishing a matter it should not raid to the rights of the citizens of India
and should not take away the sovereignty and integrity of India, the security
of State, public order, decorum and morality but here, in the instant case the
right asked by the petitioner is the right to means of information and to
interview the two prisoners who are sentenced to death. And it is not the right
to express any particular view or opinion which is asked by the petitioner. If
the person to be interviewed is willing to be interviewed then only that right
2
119821 1 SCR 1184.
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can be claimed. Under section 161 (2) of Criminal Procedure Code, it is

mentioned that the existence of a free press does not imply a spell out in legal
obligation on the citizens to supply. The learned chief justice stated that there
is no data or information available on which we can say that the two prisoners
are willing to interview.
The rule number 549 of the manual for superintendence and management of
jails of Delhi, provides that a Prisoner who is sentenced death shall be allowed
for undergoing such interviews and other communications with his or her
relatives friends or legal advisor to get reasonable defence.
Journalist or newspaper men are not expressly mentioned in clause 4 of this

rule but that does not mean that they do not have a right to interview a
condemned prisoner and it is considered that under rule 549 the newspaper
men are considered as a friend of society and cannot be denied the right to
interview. The constitution of India guarantees the right of freedom to speech
and expression under article 19 (1)( a) of Constitution, but it is not the point
of issue here. It is true that the provision of article 21 is relevant and the term
life will cover the living condition prevailing in the jail.
In Sunil Batra v. Delhi administration,3 the bench examine the effects of

article 21 in regard to a condemned prisoner. Observation made in the case
was that “the operation of article 14, 19 and 21 of constitution cannot be
puffed out altogether but it can be prune down. The prisoners cannot be put
down for talking to a fellow prisoner. Vows of silence for taboo or writing
poetry or drawing cartoons are taking away the fundamental right which is
mentioned under article 19(1)(a) every man or woman who is sentenced for
term is doing violence to part III of the constitution.”
3
[1979] 1 SCR 392.
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In Munn v. Ilions;4 “the quality of life covered by article 21 is mentioned as

when human rights are hashed behind bars, constitutional justice impeaches
such laws.” Which means that when a citizen is into a prison, it is the duty of
authorities to ensure that during the duration of detention the prisoners is free
from all types of torture.
In Francis Coralie Mulin v. Administrator, Union Territory of Delhi ors., 5 it

was pointed out that “a prisoner is not stripped of his fundamental and other
legal rights.”If the constitutional validity is challenged then it has to be
decided whether the procedure laid down by such law for depriving a person’s
personal liberty is reasonable, just and fair.
In A K Roy v. Union of India & Anr6., it was seen that “the term life includes
the right to live with human dignity which includes necessity of Nutrition,
clothing, shelter etc.”
The council for the petitioner mention the case of SP Gupta and ors v. Union
of India 7address where it was held that in a country like ours, where we have
adopted democracy, the citizens have the right to choose by whom and by
what laws and rules they will be governed and the one who governs can
survive only on the basis of accountability, aver and blameworthiness. For a
democratic State the citizens have the right to know the fact, the true facts
about the administration of the country which is considered to be one of the
most important pillar for a democratic country and that is why in a democratic
4
[1877] 94, U.S. 113.
5
[1981] 1 Scc 608.
6
[1982]2 SCR.
7
[1982]2 SCR 365 pg. 598.
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country the demand for openness from the government is increasing day by
day in different parts of the world.
The Judgement of openness in the government is based on two principal
reasons. Now it is not just of exercising their ballot once in 5 years and to
choose their rulers and casting their votes and then retiring in sluggishness
and taking no interest in the government but today it is common that
democracy is of more positive content and its orchestration has to be
interminable and ubiquitous, which means Inter alia, people casting vote
should not only cast the votes intelligently and rationally but also to recitation
sound judgement on the conduct of the government so that democracy will
not only remain to intermediate exercise but also become a continuous
process. It is possible only if it is a open democratic government where a
citizen have full access to information in regard to the functioning of the
government.
It is been agreed as expressed in several decision of this court, that the word
life included in article 21 of constitution extend to all the citizens and also to
the person who are detained in the prison be that as under trial or as convicted
and are also entitled to the right guaranteed to them as subject to reasonable
restriction.
Due to the awakening situation in both citizens and in the people detained in
jail the authorities connected with the administration has undergone positive
changes and provisions of Jail standard have gone up.
The incidents which have taken place in the Tihar jail, which is located at the
country's capital was disclosed which took place under the very nose of the
responsible administrator.
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Although article 19(1)(a) does not confer any right to any citizen to enter into
the jail for collection of the information but under article 19 and article 21 it
is available to a citizen who is detained in jail that he can be interviewed by
another person as to to collect information but it has to be controlled and
regulated by the authorities.
And therefore we agree to Mr Bhasme’s submission who is from the

respondent side which says that, when any factual information is collected by
the interviewer as a result of interview it must be crossed checked with
authorities, so that no wrong picture of any situation would be published and
the petitioner claim that she was entitled to uncontrolled interview for not
accepted. It is expected that once you get the permission to interview one will
agree to stand for reasonable restrictions. It is important that the correct
information is collected and disclosed and there should be no propagation of
wrong information. The manual which provide for reasonable restriction are
acceptable and if there is any dispute on the matter of reasonable restriction
it would be examined and it is believed and hope that such situations would
occur in rarest of the rare time. Mr. Bhamse also mentioned that there can be
cases where tape recording is necessary and for that special permission from
the appropriate authorities must be taken. Similarly there can be cases where
interview of prisoners may not be allowed. It must be checked by the
authorities that the interview is not forced and the prisoner is willing to be
interviewed.
Finally it was held that the petitioner is free to make an application to get
permission from the prescribed authority keeping in mind the guidelines
indicated above to interview the Prisoner.
Legal Messenger
CORPORATE CRIMINAL LIBALITY IN

INDIA: A CONTEMPORARY CRITIQUE
Pareesh Virmani 1
“Corporate crime is the conduct of a corporation or of its employees

acting on behalf of the corporation, which is prescribed and punished by
law.”
-J. Braithwaite
Introduction
“A company can only act through human beings and a human being who
commits an offence on account of or for the benefit of a company will be
responsible for that offence himself. The importance of incorporation is that
it makes the company itself liable in certain circumstances, as well as the
human beings”
- Glanville Williams
Companies are juristic persons and, hence, the prevalent view was that a
company could not be charged of offences because of procedural difficulties
of arrest, etc. Due to absence of requisite intention to commit a crime no
criminal liability could be attributed to them. In Assistant Commissioner,
Assessment-II, Bangalore v. Messers Velliappa Textiles Ltd.2 the SC had
endorsed alter ego theory. However, it had by majority held that a company
cannot be prosecuted for offences requiring imposition of imprisonment only
or of mandatory term of imprisonment coupled with fine. However, a year
later in Standard Chartered Bank v. Directorate of Enforcement3, a five-
judge constitution bench overruled Velliappa Textiles dictum. From thereon,
the SC has inched forward in determining the issue of corporate criminal
liability and has provided jurisprudential value through Iridium and Sunil
Bharti Mittal rulings.
1
Student, Delhi Metropolitan Education, affiliated to GGSIP University.
2
AIR 2004 SC 86
3
AIR 2005 SC 2622
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Company as a separate legal entity

Now in this era of globalization body corporates plays a multi-facet role in
the society, it is considered to be the most effective vehicle to regulate
business enterprise in the modern times. Under legal norms company has got
a separate status, which is “juristic personalities”. The term body corporate is
used as synonyms for the term “corporation”. It has got wider scope than the
term “company”. “Body Corporate” or “corporation” includes a company
incorporated outside India, but does not include4-
i. A co-operative society registered under any law relating to co-
operative societies;
ii. Any other body corporate, which the Central Government may, by
notification, specify in this behalf.
In Salomon v Salomon & Co.5 it was held that “like any juristic person, a
company is legally an entity apart from its members, capable of rights and
duties of its own, and endowed with the potential of perpetual succession”.
In the case of State Trading Corporation of India v Commercial Tax
Officer6 the court held that unlike an unincorporated company, which has got
no separate existence and which the law does not distinguishes from its
members, an incorporated company has separate existence and the law
recognizes it as a legal person separate and distinct from its members. When
these corporations have got separate legal entity, it can own property, can sue
and can be sued. Now the main question arises that whether these
corporations can be guilty of committing a crime or not? And when they are
4
Sec. 2(11), Companies Act, 2013
5
1897) AC 22 H.L
6
(1963) 33 Comp Cas 1057 (SC)
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held guilty can they be penalized for their criminal act and if yes then what
would be the penalty that can be imposed upon them.
Criminal law has evolved principles of liability to tackle offences committed

by individuals. With the growth of the corporate activities, corporations are
susceptible to economic crimes. Corporate crime and fraud are not new issue
that confronts the Indian corporate sector. In Indian business couple of fraud
cases documented has been reported to increase. As a result ordinary criminal
law, equipped with conceptual tools to attach responsibility on individuals is
also used to regulate corporate behaviour. Thus, criminal jurisprudence that
based on individualism is being used to regulate the behaviour of a
collectivity7.
Earlier as a general rule criminal liability on corporations were not imposed

as per the common law. This is so because it was considered that the company
lacked moral blameworthiness which is an essential element of crime. There
was the belief on the existence of a common question that is “the company
does not have a soul to damn, or a body to kick”. Eventually it was from the
beginning of the 20th century that the courts began to recognize corporate
criminal liability of the corporations. Till then courts in India were hesitant in
prosecuting companies for offences that entitled mandatory imprisonment of
the crime committed.
7
T.K Bhaskar, V. Umakanth, ‘Corporate Criminality and Law’, 1996, Journal of the Indian
Law Institute, Vol. 38.2, Pg. 220
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Advances in corporate criminal liability
Throughout the ages, the evolution of the doctrine of corporate criminal

liability faced many major issues, the main ones being:
 The failure to identify or prove criminal intent of a juristic, fictional

being. As corporations are intangible legal entities, finding the mens
rea necessary for the commission of a criminal act proved to be quite the
obstacle.
 Sanctions were the second problem. A corporation cannot be imprisoned
or put to death and hence the threat of imprisonment which plays a major
role in criminal law could not be applied here. This lead to speculation
that criminal law was not appropriate for the enforcement of this doctrine.
 Courts required the accused in a criminal case to be physically brought
before them for proceedings to take place. This was obviously not
possible in the case of corporations.
At present8, the directors, employees and officers are all liable for criminal
acts committed by them which they have actual authority to perform or appear
to have authority to perform as observed by an average reasonable man.
Further, directors and officers may also be subject to criminal liability under
the “accomplice theory” which states that they either encouraged or instructed
a subordinate to commit a criminal act or failed to exercise due care and
supervision of their subordinates which in turn led to the commission of the
crime. This theory states that a person is criminally liable by virtue of his
“responsible relation” to the misconduct regardless of whether or not he
possesses any knowledge regarding the criminal activity. For the doctrine of
8
Prior to the twentieth century, it was believed that a corporation lacked the mens rea
required for the commission of a criminal act and hence to attain a criminal conviction. The
idea that “A corporation has no soul to damn, and no body to kick” was widely prevalent at
that time.
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corporate criminal liability to be applicable, the criminal act of the employee

must:
 Be committed with the intention of benefiting the corporation in some

manner.
 Be committed with the intention of increasing his own personal gain, and
this conduct ultimately ends up benefiting the corporation as well.9
Facsimiles of corporate criminal liability
 Derivative Model
This model is individual centred model. It derives to attach the liability to the
corporation only because an individual connected to the corporation incurred
some liability for which the individual is to be punished, but since it is
connected to the corporation the liability is put on the corporation to having
that individual with it and letting it incurred some liability. 10 Derivative
model can be understood in two sub-categorises: a) Vicarious Liability; b)
Identification Doctrine.
 Vicarious Liability
The concept of vicarious liability is based on two latin maxims- first, qui facit
per alium facit per se, it means that he who acts through another shall deemed
to have acted on his own, and second, respondeat superior which means let
the master answer. In Bartonshill Coal Co. v. McGuire11, Lord Chelmsford
LC said: ‘every act which is done by an employee in the course of his duty is
9
Available at https://www.lawctopus.com/academike/corporate-criminal-liability/ (last
viewed on 23rd October 2017)
10
Sumit Baudh, Corporate Criminal Liability, The Student Advocate (Vol. 10), 1988, pp.
45-46.
11
(1853) 3 Macq 300
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regarded as done by his employer’s orders, and consequently is the same as

if it were his employer’s own act.’
Vicarious liability generally applies to civil liability but Massachusetts court

in Commonwealth v. Beneficial Finance CO.12, held three corporations
criminally liable for a conspiracy to bribe, the first company, for the acts of
its employee, the second, for the act of its Director, and the third, for the acts
of the Vice-President of a wholly owned subsidiary. The Court seemed to
believe that corporate criminal liability was necessary since, a corporation is
a legal fiction comprising only of individuals. US courts are not the only
courts which have incorporated the concept of vicarious liability in the cases
of criminal liability, but now this model has been rejected considering it to be
unjust to condemn one person for the wrongful conduct of another.13
 Identification Doctrine
This doctrine is an English law doctrine which tries to identify certain key
persons of a corporation who acts in its behalf, and whose conduct and state
of mind can be attributed to that of the corporation. In case of Salomon v.
Salomon & Co.14 House of Lords held that corporate entity is separate from
the persons who acts on its behalf. The Courts in England had in various
judgments like DPP v. Kent & Sussex Contractors Ltd.15, R v. ICR Haulage
Ltd.16, ruled that the corporate entities could be subjected to criminal liability
and the companies were held liable for crimes requiring intent. Judgment like
these led to the promulgation of ‘identification doctrine’.
12
Scoff Massachusetts, 1971 360 Mass 188,cfWR Lafare, Modem Criminal Law (West
Publishing Co., 775
13
State of Maharashtra vs. M/s Syndicate Transport Co. (P) Ltd. AIR 1964 Bom 195.
14
1897 AC 22: (1895-99) All ER Rep 9 (HL
15
(1944) 1 All E.R.119
16
[1944] KB 551, [1944] 1 All ER 691
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As to the liability of these key persons who act on behalf of company, it was
held in Moore v. Brisler17 that the persons who are identified with the
corporations must be acting within the scope of their employment or
authority. The conduct must occur within an assigned area of operation even
though particulars may be unauthorised. It will be wise to infer that
identification doctrine is narrower in scope than the vicarious liability
doctrine, instead of holding corporation liable for act of any employee,
identification doctrine narrows it down to certain persons.18
 Organizational Model
Unlike derivative model which focuses on individual, organizational model

takes corporation into consideration. Offences require mental state (mens rea)
to commit a crime along with physical act (actus reus), but the problem that
arises while holding corporations criminally liable is how a corporation which
is juristic person could possess requisite mental state to commit a crime.
Derivative model was one way to attribute mental state to corporation. Other
way could be by proving that there existed an environment in the corporation
which directed, tolerated, led-on, and even encouraged the non-compliance
of specific law which made it offence.19 Moreover, physical act that too is
required to complete the requirement of commission of an offence can be
derived rather be proved from the act of its employees, officers, directors, etc.
Thus, culture of a corporation is to be seen while determining its criminal
liability.
17
[1944] 2 All ER 515
18
Smith and Hogan, Criminal Law 178 (1992)
19
Criminal Law Officers Comm. [Code Committee] of the Standing Comm. of Attorneys-
General, Austl., Model Criminal Code: Chapter 2, General Principles of Criminal
Responsibility Section 501 (1992).
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Corporate culture may help for commission of an offence requiring mental

state by- firstly, providing the environment or necessary encouragement that
it was believed by the offender working in the corporation that it was perfectly
alright to commit that offence, or corporation has psychologically supported
the commission of offence; secondly, it is quite possible that the corporation
created an environment which led to commission of crime. Both ways it was
the corporation and its working culture that let the offence committed.
Supreme Court & Corporate Criminal Liability
Concept of Mens Rea and Iridium case
The significance of Iridium lies in the fact that it clarifies the law on the point
as to whether a company can be punished for crimes requiring mens rea. In
this case Iridium had filed a criminal complaint against Motorola under
sections 120B20 and 42021 of the Indian Penal Code based on which the
magistrate in Pune started proceedings against Motorola. Motorola then
moved to the Bombay High Court seeking to quash the proceedings started
by the judicial magistrate. The High Court allowed the petition quashing the
20
120B. Punishment of criminal conspiracy.—(1) Whoever is a party to a criminal
conspiracy to commit an offence punishable with death, 2[imprisonment for life] or rigorous
imprisonment for a term of two years or upwards, shall, where no express provision is made
in this Code for the punishment of such a conspiracy, be punished in the same manner as if
he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit
an offence punishable as aforesaid shall be punished with imprisonment of either description
for a term not exceeding six months, or with fine or with both.
21
420. Cheating and dishonestly inducing delivery of property.—Whoever cheats and
thereby dishonestly induces the person deceived to deliver any property to any person, or to
make, alter or destroy the whole or any part of a valuable security, or anything which is
signed or sealed, and which is capable of being converted into a valuable security, shall be
punished with imprisonment of either description for a term which may extend to seven years,
and shall also be liable to fine.
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proceedings at the magistrate level giving several reasons, one of them being
that a company is incapable of having a guilty mind therefore no offence of
cheating can be committed by it. Iridium, by way of appeal approached the
SC.
The SC framed the following two issues for its consideration:
 Can Mens rea be attributed to the companies for the criminal liability?
 What is the criminal liability for misstatements in the context of securities
offerings made to specific investors on a private basis?
Substantially, the SC was concerned about the corporate criminal liability of
the company. This was done by way of principle of attribution. This principle
is invoked when the question as to whose mental element shall be attributed
to the company for foisting criminal liability, comes up. In this judgment the
court ruled that the person who is in direct control and in-charge of the affairs
of the company and the degree of the control is so intense and rigorous that
the company is said to act through the person, is instrumental in attributing
criminal liability to the company. The two main points on which the court
gave its ruling were: first that a company is capable of possessing the requisite
mens rea and secondly that the rigid test of identification of the directing mind
of the company has to be followed in determining the requisite metal
element.22
The court had relied on the case of Tesco Ltd.5 wherein it was laid down that
the people who are specifically entrusted with the powers and duties towards
the company and are mentioned in the Memorandum of Association
("MOA"), Articles of Association ("AOA"), named by the directors or
approved of such powers in the general meetings of the company will be held
22
Available at
http://www.mondaq.com/india/x/423044/Corporate+Crime/Corporate+Criminal+Liability
+Revisiting+Iridium (last visited on 23rd October 2017)
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liable and their acts will be instrumental in attributing criminal liability of the
company. Iridium goes one step ahead by holding any natural person
accountable and attributing liability to the company on behalf of their actions.
The only requirement is that the person should be in charge of the affairs of
the company. The court further held that non-disclosure of proper information
would be treated as mis-representation thereby constituting the criminal
offence of cheating for which the company can be held liable. The court
finally ruled that criminal liability can be attributed to the company since it is
capable of possessing the requisite men rea for commission of the offence.
The Supreme Court in Sunil Bharti Mittal v. Central Bureau of

Investigation (“CBI”) and Others23 has held that the principle of alter
ego can only be applied to make the company liable for an act committed by
a person or group of persons who control the affairs of the company as they
represent the alter ego of the company; however it cannot be applied in
reverse direction to make the directors of the company liable for an offence
committed by the company. The Supreme Court has clarified that the
application of the principle of vicarious liability to make the directors of the
company liable for an offence committed by the company can only be done
if the statute provides for it. While doing so, the Court has set aside the order
of the Special Court wherein the Special Court had issued summons to the
directors of the companies by stating that they represent the alter ego of the
companies.
The court resolved the confusion on following two issues
 Whether the principle of attribution/alter ego can be applied to make the

directors of the company liable for an offence committed by the company?
23
Criminal Appeal No. 35 of 2015 (arising out of Special Leave Petition (Crl.) No. 3161 of
2013)
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 When can a director/person in charge of the affairs of the company be

prosecuted for an offence committed by the company?
The three judge bench of the Supreme Court struck down the summons issued
by of the Special Court and held that the Special Court had erroneously
applied the doctrine of alter ego to implicate the directors of the companies
for offences committed by the companies.24
Due to the rapid pace of globalization of business and evolution of

transnational corporations, it has become very essential to determine the
concept of corporate criminal liability. In State of Maharastra v Syndicate
Transport Co. Pvt. Ltd.25 as quoted in Rachana Flour Mills Pvt. Ltd. v
Lalchand Bhanadiya26 the Andhra Pradesh High Court observed that:
“Numerous corporate bodies have come into existence. These
corporate bodies necessarily act through the human agency of their
directors or officers and authorized agents. These seem to be no
reason to exempt them from liability for crimes committed by their
agents or servants while purporting to act for or on behalf of the
corporate bodies. The ordinary citizen is now very much exposed to
the activities of persons acting, in the name of corporate bodies.”
Who can be held liable?
It is worth clarifying that a person cannot be held liable merely on the basis
of the designation. No presumption can be drawn against the person
occupying the position of a chairman or managing director only on the basis
of their position. There is no universal rule that a director of a company is in
24
Available at http://www.nishithdesai.com/information/research-and-articles/nda-
hotline/nda-hotline-single-view/article/corporate-criminal-liability-principles-of-
attribution-and-vicarious-liability-clarified.html?no_cache=1 (last viewed on 23rd October
2017)
25
AIR 1964 Bom 195
26
(1987) 62 Comp Cas 15 AP
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charge of its everyday affairs. A person should fulfil the ‘legal requirement’
of being a person in law (under the statute governing companies) responsible
to the company for the conduct of the business of the company and also fulfil
the ‘factual requirement’ of being a person in charge of the business of the
company.
Certain legislations have a provision titled as ‘Offences by Companies’,

which makes the person in charge of and responsible at the time of
commission of the offence liable for that offence along with the company
unless the person proves that the offence was committed without his
knowledge or that he exercised all due diligence to prevent the
commissioning of such offence. Under the said provision, the director,
manager, secretary or any other official of the company may also be held
liable if it is shown that the offence was committed with his consent or
connivance.
The concept of vicarious liability of corporate officials has evolved

substantially over the past decade. It is worth noting that it has become a
tendency to implead the senior management officials of the company along
with the company to exert pressure on the company to settle. In a lot of
instances, such senior officials may also be summoned by the investigating
authorities. There is almost unanimous judicial opinion that a clear case needs
to be spelt out against the person in the complaint before fastening criminal
liability.
Furthermore, in case the court is required to issue summons, there has to be

strict compliance with statutory requirements. Summoning is a serious issue
and criminal law cannot be set in motion as a matter of routine, and summons
should only be issued after recording reasons in writing. The Indian Courts
have so far been very cautious in their approach and have generally protected
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the corporate officials from harassment by the investigating agencies unless

there is enough material against the official concerned.27
Punishments
A corporation may be punishment by fine, indeed the only punishment that

can be inflicted on a corporation for a criminal offence, is a fine or seizure of
its property which can be levied by an execution issued by the court. A
corporation cannot be imprisoned and is not amenable to prosecution for a
criminal offence which is only punishable by death or imprisonment.
However, the fact that the penalty provided for the violation of a statute is a
fine or imprisonment, or both in the discretion of the court, does not render it
inapplicable to a corporation, and the same rule applies where the statute
creating the offence provides for imprisonment if the fine imposed not paid.
Sometimes, a statute providing that the penalty for a particular crime is
imprisonment may be read in conjunction with a general statute allowing the
imposition of a fine, and the fine may be imposed on the corporation in lieu
of imprisonment.
Jurisprudence of corporal criminal liability in other countries
Europe
While the preceding philosophical and policy debate has been occurring in
the United States, a debate of a different kind has been occurring in Western
European countries. Western European legal systems fundamentally resisted
the imposition of criminal liability on legal entities throughout most of the
27
Available at https://corporate.cyrilamarchandblogs.com/2017/04/criminal-liability-
corporate-officials-india/ (last visited 23rd October 2017)
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last century. This opposition was expressed in the principle societas

delinquere non potest, which means, ‘a legal entity cannot be blameworthy ’.
The modern trend in Western Europe of imposing criminal responsibility on

corporations began in 1970 and continues to the present time.
Netherlands
In 1976, the Netherlands became one of the first Western European countries
to adopt legislation enacting comprehensive corporate criminal liability. The
legislation made corporations liable for all offenses, expanding on criminal
liability that had previously been limited to economic crimes. The 1976
legislation also dispensed with the requirement that liability be predicated on
the actions of natural persons acting on the corporation’s behalf, which was a
requirement of the previous 1951 law. Liability may be predicated on
deficient decision-making structures within the corporation or on the
aggregate knowledge of multiple individuals.
Denmark
In 1926, with the passage of the Butter Act, Denmark introduced corporate
criminal liability for some offenses. By the end of the century, Denmark had
greatly expanded the list of enterprise offenses.
Switzerland
In late 2003, Switzerland imposed criminal liability on corporations, having

previously rejected such liability for doctrinal reasons. Swiss criminal
liability is based on the concept of ‘subsidiary liability’: a corporation can be
held liable for offenses committed on its behalf only if fault cannot be
attributed to a specific individual ‘because of a lack of organization within
the enterprise.’ The offense must be ‘in furtherance of a business activity
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consistent with the purpose of the enterprise,’ a requirement which

undoubtedly will need to be defined by the courts. Criminal fines can range
up to 5 million Swiss francs. Such liability is predicated on management’s
failure to properly organize and manage the corporation’s affairs.
France
The basis for corporate criminal liability in French law is codified in Article
121-2 of the new French penal code, which states: Juridicial persons, with the
exception of the State, are criminally liable for the offenses committed on
their account by their organs or representatives in the cases provided for by
statute or regulations. Article 121-2 further provides the “criminal liability of
legal persons does not exclude that of the natural persons who are perpetrators
or accomplices to the same act.”
Conclusion & law commission report recommendations
The 47th Law Commission Report28 has recommended various solutions to

deal with such problem:
1. Some discretion is to be given to judges to impose penalties as they deem

fit for the case.
2. Para 8(3) of the47th law commission report recommended that, “in every
case in which the offence is punishable with imprisonment only or with
imprisonment and fine, and the offender is the corporation, it shall be
competent to the court to sentence such offender to fine only.”
28
The Trial and Punishment of Social and Economic Offences- this report deals with the
effective implementation of material provisions of certain acts. These offences may be
escribed as social and economic offences.
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3. In every case in which the offence is punishable with imprisonment and

any other punishment not being fine and the offender is a corporation, it
shall be competent to the court to sentence such offender to fine.
Unfortunately, the legislatures have ignored these recommendation by law
commission and failed to incorporate these provision, and thus the problem
is where it was earlier. It is still very difficult for court to punish the offenders.
Therefore, it can be said that even though Corporate Crimes are much in
vogue today, but the methods to tackle them are still in their pre-mature stage.
To the comfort of corporates, so far we have seen that courts have taken a
balanced view. They have not shied away from acting against the senior
official if it is established that the official was responsible for the crime. At
the same time, however, they have protected senior officials where their
personal involvement could not be proved. Having said that, the need of the
hour is to take certain deterrent measures to impose costs or punish
complainants for initiating frivolous proceedings.
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GST: NEW DIMENSION IN INDIAN TAX SYSSTEM
Abhinav Bansal 1
Introduction
Taxation is one of the vital components in the development, growth and
administration of any country Revenue generated from taxation is used by the
government for providing better amenities to the public like infrastructure,
transportation, education, etc.
Taxation is also considered major tool available to government for helping
the poor people by providing certain facility to them and removing poverty.
On the other hand tax reform are essential for any comprehensive strategy for
structural adjustment and the resumption of growth. There were two types of
taxes levied in India. One is direct tax and second is indirect tax. Direct tax is
tax which is directly paid by the individual to the government on there
income. Indirect tax is tax paid indirectly by the final consumer of the good.
“Constitution of India is the source of power to make all the laws and to
legislate all the law in India. The authority to levy a tax is derived from the
Constitution of India which allocates the power to levy various taxes between
the Central and the State. Article 246 of the Indian Constitution, distributes
legislative powers including taxation, between the parliament of India and
the State Legislatures2”
Over the years, many tax reforms had come, mainly in indirect tax system
changes have been made to make Indian tax system more tax friendly.
Changes are made in taxation to improve tax system in the country and to
make it less complicate.
1
Amity University, Noida.
2 Institute of company secretaries of India, “Supplement for Tax lies and practice” pg. 4
available at
https://www.icsi.edu/WebModules/EXECUTIVE%20SUPPLEMENT%20GST.pdf.
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Change in tax system form VAT to GST is made to remove the cascading
effect in taxation and to make the system more easy and convenient for the
public. GST is also introduced by government to fight with the black money.
By this there would be significant change in the tax system of country and by
this move revenue will be generated by the government and will make
economy more stronger and it will all help in growth and development of
country.
Before India 165 other country also opted and change their tax system to GST
and ratified it. Following country are New Zealand, Australia, France,
Germany, Denmark etc. Every country has their own percentage of tax.
GST and Constitution of India:

Article to be amend and related to taxation of state and center:
1. “After Article 246 of the Constitution, the following Article shall be
inserted, namely: —
"246A. Special Provision with respect to goods and service Tax
(1) Notwithstanding anything contained in Articles 246 and 254, Parliament,

and, subject to clause (2) The Legislature of every State, have power to make
laws with respect to goods and services tax imposed by the Union or by such
State.
(3) Parliament has exclusive power to make laws with respect to goods and
services tax where the supply of goods, or of services, or both takes place in
the course of inter-State trade or commerce.
(4) In Article 268 of the Constitution, in clause (1), the words "and such duties
of excise on medicinal and toilet preparations" shall be omitted.
(5)268A Service Tax levied by union and collected and appropriated by the
Union and the state’s interested by the section 2 of the constitution (Eighty-
eight Amendment) Act,2003 shall be omitted”.
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After Article 269 of the Constitution, the following article shall be inserted,
namely: —
‘‘269A. (1) Goods and Services tax on supplies in the course of inter-State
trade or commerce shall be levied and collected by the Government of India
and such tax shall be apportioned between the Union and the States in the
manner as may be provided by Parliament by law on the recommendations of
the Goods and Services Tax Council.
Explanation. —For the purposes of this clause, supply of goods, or of

services, or both in the course of import into the territory of India shall be
deemed to be supply of goods, or of services, or both in the course of inter-
State trade or commerce.3
(2) Parliament may, by law, formulate the principles for determining the place
of supply, and when a supply of goods, or of services, or both takes place in
the course of inter-State trade or commerce.’’
In Article 270 of the Constitution, —
“270. Taxes levied and distributed between the union and the state:
“in clause (1), for the words, figures and letter "Articles 268, 268A and Article
269", the words, figures and letter "Articles 268, 269 and Article 269A" shall
be substituted”;
(ii) after clause (1), the following clause shall be inserted, namely: —
‘‘(1A) The goods and services tax levied and collected by the Government of
India, except the tax apportioned with the States under clause (1) of Article
3 The Constitution of India Act 2016, Article 269

Legal Messenger
269A, shall also be distributed between the Union and the States in the
manner provided in clause (2).’’
11. After Article 279 of the Constitution, the following Article shall be
inserted, namely: —
‘‘279A. (1) The President shall, within sixty days from the date of
commencement of the Constitution (One Hundred and Twenty-Second
Amendment) Act, 2014, by order, constitute a Council to be called the Goods
and Services Tax Council.
(2) The Goods and Services Tax Council shall consist of the following
members, namely: —
(a) the Union Finance Minister........................ Chairperson;
(b) the Union Minister of State in charge of Revenue or Finance.................

Member;
(c) the Minister in charge of Finance or Taxation or any other Minister

nominated by each State Government....................Members”.4
(3) “The Members of the Goods and Services Tax Council referred to in sub-
clause (c) of clause (2) shall, as soon as may be, choose one amongst
themselves to be the Vice-Chairperson of the Council for such period as they
may decide”.
(4) “The Goods and Services Tax Council shall make recommendations to
the Union and the States on—
the taxes, ceases and surcharges levied by the Union, the States and the local
bodies which may be subsumed in the goods and services tax;
4 The Constitution of India Act 2016, Article 279

Legal Messenger
(b) the goods and services that may be subjected to, or exempted from the
goods and services tax;
(c) model Goods and Services Tax Laws, principles of levy, apportionment
of Integrated Goods and Services Tax and the principles that govern the place
of supply;
(d) the threshold limit of turnover below which goods and services may be
exempted from goods and services tax;
(e) the rates including floor rates with bands of goods and services tax;
(f) any special rate or rates for a specified period, to raise additional resources
during any natural calamity or disaster;
(g) special provision with respect to the States of Arunachal Pradesh, Assam,
Jammu and Kashmir, Manipur, Meghalaya, Mizoram, Nagaland, Sikkim,
Tripura, Himachal Pradesh and Uttarakhand; and
(h) any other matter relating to the goods and services tax, as the Council may
decide”.
(5) “The Goods and Services Tax Council shall recommend the date on which
the goods and services tax be levied on petroleum crude, high speed diesel,
motor spirit (commonly known as petrol), natural gas and aviation turbine
fuel”.
(6) “While discharging the functions conferred by this Article, the Goods and
Services Tax Council shall be guided by the need for a harmonized structure
of goods and services tax and for the development of a harmonized national
market for goods and services”.
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(7) One half of the total number of Members of the Goods and Services Tax
Council shall constitute the quorum at its meetings.5
(8) “The Goods and Services Tax Council shall determine the procedure in
the performance of its functions”.
(9) “Every decision of the Goods and Services Tax Council shall be taken at
a meeting, by a majority of not less than three-fourths of the weighted votes
of the members present and voting, in accordance with the following
principles, namely: —
(a) the vote of the Central Government shall have a weightage of one-third of
the total votes cast, and
(b) the votes of all the State Governments taken together shall have a
weightage of two-thirds of the total votes cast, in that meeting”.
(10) “No act or proceedings of the Goods and Services Tax Council shall be
invalid merely by reason of—
any vacancy in, or any defect in, the constitution of the Council; or
(b) any defect in the appointment of a person as a member of the Council; or
(c) any procedural irregularity of the Council not affecting the merits of the
case”.
What is GST And Its Journey:

Goods and service tax law in India is comprehensive, multi stage, destination-
based tax system which is introduced by Indian government to improve tax
laws. It is simplified tax structure which is applied in both goods and services.
It would be applicable on good manufacture by the company or on supply of
5The Constitution of India (One Hundred and Twenty Second Amendment) Act, 2016,
Article 279.
Legal Messenger
goods or on sale of goods. Existing system of taxation is origin based and not
in new tax system it would be destination based tax.
There would be dual GST system in order to maintain the federal structure of
the nation. The dual GST system is central goods and service Tax(CGST) and
Sate good and service Tax (SGST). There will also be Integrated goods and
service tax (IGST) which will be levied on inter sate supply of goods and
service and it will be collected by the center.
As GST was not a new concept it was adopted by many other countries
previously and France was the first country to adopt and implement GST as
their tax regime 1954 which is followed by Germany in 1968 and many other
countries also start adopting GST as their Taxation system.
Similarly, India has been trying to implement GST as their taxation system
from last sixteen year during Atal Bihari Vajpayee Government. In 2007, it
was again suggested by P. Chidambaram to implement GST but due to
political reason it was not adopted by the government.
“Now Finally at last, During BJP's Government the Constitution (122nd
Amendment) Bill was first passed by the Lok Sabha in May 2015, at that point
taken up again by the Lower House to affirm the progressions made in it by
the Rajya Sabha. At long last, Rajya Sabha has passed it by 203/203-part
present and voting for GST on 3 August, 2016 and in Lok Sabha on 8 August,
20166.The fundamental destinations of the GST rates are to keep up revenue
and to limit the inflationary effect”.
Framework OF GST
India being a federal country both the center and the state have been assigned
the power to levy and collect taxes through appropriate legislation. Both the
level of government has distinct responsibilities to perform according to the
6 Manu,“ GST :New Dimensions in Indian Tax System” available at

http://www.legalservicesindia.com/article/2240/GST:-New-Dimensions-in-Indian-Tax-
System.html.
Legal Messenger
division of power prescribed in the constitution for which they need to raise
resources. A dual power prescribed on the constitution for which they need
to raise resources. A dual GST was therefore proposed keeping in mind the
constitution requirement of fiscal federalism7 .
Along with the amendment in the Constitution, to empower the Centre and
States to levy and collect the GST, four legislations were given assent by the
President, which are:
1) The Central GST Act, 2017
2) The Integrated GST Act, 2017
3) The GST (Compensation to States) Act 2017
4) The Union Territory GST Act, 2017
Applicability of GST:
But there are many other goods which are exempted from the tax. It Is
explained as any good or services or both which attract nil rate of taxable
supply or which may be wholly exempt from the tax and include non. taxable
supply. Power to grant exemption under GST one has to consider section 118
of CGST (Central Goods and Service Tax) and section for IGST (Integrated
Goods and Service Tax).
Some of the items which are exempted under the GST regime are unbranded
aata/besan , unpacked food, grains, milk, egg , fresh vegetable etc. are some
of the item exempted form GST.
Other services like health care facility, education services etc. have also been
exempted9.
Specific services Exempt from CGST and SGST are:
7 Institute of company secretaries of India,” Supplement for Tax lies and practice” available
at https://www.icsi.edu/WebModules/EXECUTIVE%20SUPPLEMENT%20GST.pdf.
8 Institute of chartered accountants of India, “Exemption from GST” pg. 4.2 available at
https://resource.cdn.icai.org/46253bos36354p4secBcp4.pdf.
9 Ibid.
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“Services by an entity registered under section 12AA of the Income-tax Act,

1961 by way of charitable activities, services provide to the government,
services by government like Department of Post, Aircraft or Vessel Services,
transportation of goods and passenger, services by Reserve Bank of India,
transmission or distribution of electricity”10.
Challenges of previous tax structure Before GST:

Some of the challenges under the previous indirect tax structure could be
attributed to Central Excise wherein there were variable rates under Excise
Duty such as 2% without CENVAT (Central Value Added Tax) 6%, 10%,
18%, 24%, 27%, coupled with multiple valuation system and various
exemptions. Further, under VAT, different states were charging VAT at
different rates, which were resulting in imbalance of trade between the states.
At the same time under VAT, there was lack of uniformity in terms of
registration, due date of payment, return filing assessment procedures, refund
mechanism, appellate process etc., thus complicating the compliance
mechanism. For example: A business establishment having offices in different
states are required to follow the laws of the respective states11.
Few such challenges are listed below12:
“In respect of taxation of goods, CENVAT was confined to the ―

manufacturing stage and did not extend to the distribution chain beyond the
factory gate. As such, CENVAT paid on goods could not be adjusted against
State VAT payable on subsequent sale of goods. This was true both for
10 Institute of chartered accountants of India, “Exemption from GST” pg. 4.18 available at
https://resource.cdn.icai.org/46253bos36354p4secBcp4.pdf.
available at
available at
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CENVAT collected on domestically produced goods as well as that collected

as additional duty of customs on imported goods”.
“CENVAT was itself made up of several components in the nature of ceases

and surcharges such as the National Calamity Contingency Duty (NCCD),
education and secondary and higher education cess, additional duty of excise
on tobacco and tobacco products etc. This multiplicity of duties complicated
the tax structure and often use to obstruct the smooth flow of tax credit”.
“While input tax credit of CENVAT or additional duty of customs paid on

goods was available to service providers paying Service Tax, they were
unable to neutralize the State VAT or other State taxes paid on their purchase
of goods”.
“State VAT was payable on the value of goods inclusive of CENVAT paid at
the manufacturing stage and thus the VAT liability of a dealer used to get
inflated by this component without compensatory set-off”.
Inter-State sale of goods was liable to the Central Sales Tax (CST) levied by
the Centre and collected by the States. This was an origin-based tax and could
not be set-off against VAT in many situations.
“State VAT and CST were not directly applicable to the import of goods on
which Special Additional Duties (SAD) of customs were levied at a uniform
rate of 4% by the Centre. Input tax credit of these duties was available only
to those manufacturing excisable goods. Other importers had to claim refund
of this duty as and when they pay VAT on subsequent sales”13.
“VAT dealers were unable to set-off any Service Tax that they may have paid
on their procurement of taxable input services”.
13 Ibid.
Legal Messenger
“State Governments also levied and collected a variety of other indirect taxes
such as luxury tax, entertainment tax, entry tax etc. for which no set-off was
available”.
Following type of indirect tax were there before GST regime14.-

1. “Central Excise Duty.
2. Duties of Excise
3. Cess
4. State VAT
5. Central Sale Tax
6. Taxes on advertisement, lotteries and gambling.
All the above taxes have been replaced by new Taxation system that is CGST,
SGST and IGST”.
GST in India
“GST is one of the biggest taxation reforms in India aiming to
integrate State economies and boost overall growth by creating a
single, unified Indian market to make the economy stronger. GST
is a comprehensive destination based indirect tax levy of goods
as well as services at the national level. Its main objective is to
consolidate multiple indirect tax levies into a single tax thus
subsuming an array of tax levies, overcoming the limitations of
existing indirect tax structure, and creating efficiencies in tax
administration”.
“GST is a consumption or destination based tax levied on the
14 Clear tax “GST- A new dimension in Indian Tax” available at https://cleartax.in/s/gst-law-

goods-and-services-tax.
Legal Messenger
basis of the “Destination Principles.” It is a comprehensive tax

regime covering both goods and services and be collected on
value-added at each stage of the supply chain. Further, GST paid
on the procurement of goods and services can be set off against
that payable on the supply of goods or services. Simply put,
Goods and Services Tax is a tax levied on goods and services
imposed at each point of supply. GST is a national level tax
based on value added principle just like State level VAT which
was levied as tax on sale of inter-state goods”15.
“The essence of GST is in removing the cascading effects of both

Central and State taxes by allowing setting-off of taxes
throughout the value chain, right from the original producer and
service provider’s point up to the retailer’s level. GST is thus not
simply VAT plus service tax, but a major improvement over
existing system of VAT and disjointed Service Tax ushering in the
possibility of a collective gain for industry, trade and common
consumers as well as for the Central Government and the State
Governments”16.
GST International Scenario:

“Internationally, countries are moving towards simplification of
tax structures. The adoption of Goods and Services Assessment
has been the most essential improvement in a few nations in the
available at
16 Ibid.
Legal Messenger
course of the last 50 years. Today, it is one of the generally

acknowledged roundabout tax collection framework pervasive in
excess of 140 nations over the globe. All around, GST has been
organized as a goal based far reaching charge demanded at a
predefined rate marked down and utilization of merchandise and
enterprises inside a nation. It facilitates creation of national tax
standards with consumers paying uniform rates of GST, thereby
enabling flow of seamless credit across the supply chain”17.
“Today, Malaysia is the most recent country to join the

bandwagon. In countries where GST has been adopted,
manufacturers, wholesalers, retailers and service providers
charge GST at the specified rate on price of the goods and
services from consumers and claim input credits for GST paid by
them on procurement of goods and services (raw material). GST
was first levied by France in 1954”18.
Different countries follow different model of GST based upon

their own legislative and administrative structure and their
requirements. Some of these models are:
 “Australian Model wherein, tax is collected by the

Centre and distributed to the States”.
17Institute of company secretaries of India, “Supplement for Tax lies and practice” pg. 5
available at
available at
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 “Canadian Model wherein there are three variants

of taxes”.
 “Kelkar-Shah Model based on Canada Model

wherein taxes are collected by the
Centre however, two different rates of tax are to be
levied by the Centre and the States and 6 Bagchi-
Poddar Model which envisages a combination of
Central Excise, Service Tax and VAT to make it a
common base of GST to be levied both by the Centre
and the States separately”19.
Most countries follow a unified GST regime. However,

considering the Federal nature of Indian Constitution, dual
model of GST was-proposed, where the power to levy taxes
would be subjectively distributed between Centre and States thus,
GST will be levied by both, the Centre as well as the States and
there will be separate levies in the form of Central Goods and
Services Tax (CGST), State Goods and Services Tax (SGST) and
Integrated Goods and Services Tax (IGST) enabling the tax
credit across these three variants of taxes. Currently, Brazil and
Canada also follow dual GST model20.
Merits and Demerits of GST
available at
20Ibid.
Legal Messenger
As New tax system is regime in Indian and new lax laws are form and whole
taxation system has been changed so there will be its merits and demerits of
this system.
Merits:
1. GST is the transparent Tax system and it will put an end to the cascading
effect of tax.
2. Cost of doing business will reduce and there will be no hidden taxes.
3. GST is consumption based tax means Tax will be levied at final destination
which is consumption level.
4. GST is introduced by the government to make corruption free tax
administration.
1. Advantages to government:
GST will make a brought together normal national market for India, giving a
lift to remote speculation and "Make in India" Campaign. It prevents the
cascading effect and overlapping of tax system and make the system hassle
free and convenient for everyone.21
All the tax paying system will be improved and all payment of tax is done
online, input credit to be verified online so there will be hassle free
transaction.
It will help in boost the manufacturing activity and help in increase the GDP
of economy.
As human interference will be reduced as all tax paying will be done online
so there will be less chance of manipulating the taxable amount and all the
activity will be linked to the GST number provide to the manufacturer or the
business person so they won’t be able to manipulate that data.
21 Manu, “GST: New Dimensions in Indian Tax System” available at

System.html.
Legal Messenger
It will help in reducing the corruption and as there will be no direct link
between the taxpayer and tax administration so there will no counterfeiting of
data.
In previous tax system there were many ways and loop holes by which tax
payer manage to evade tax. But in new regime now it will be difficult for them
to evade the taxes or they cannot be escaped from paying taxes. At the end it
will have government to increase their revenue.
GST will not only benefit the government it will also be beneficial for
industries and other individual.
Advantages to business and industries:
GST deals with all the aspects of taxation and IT department would be the
creator of the new taxation system. All the registration, filling of tax,
payment, tax input etc. will be done online and it will be now more convenient
for taxpayer to fill their return. Government while making the GST and
deciding the tax percentage of the goods keep in mind that it will remain
common so that there will no confusion in paying taxes and there will be ease
in business. It will remain neutral for every person.
It also reduces payment of multiple taxes at multiple times. One tax that is
GST is to be paid by everyone which will take less time and improve the
business of company and all the taxation processes will remain transparent.
GST will be levied at the end of the product cycle. It will not like be the
previous system where the tax was levied at various points of production. It
will also help industries in reduction of their transition cost and as the cost
will be less it will help business to grow even better.
Advantages to common man:

As it is new system for common man of filling tax and now there will be one
tax they have to pay.
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they will be knowing that how much tax they will be paying on goods and
services to the government. No hidden tax is there and transparency is
maintained.
Buying of eatable and daily need items are now cheaper as the tax percentage
is reducing from 12% to 5%.
Demerits of GST:
Although there were lots of benefit of the new tax regime there are some
demerits also. Before GST service tax was 15% but after implementation of
GST service tax is increased to 18%. All the services become costly and more
tax is to be paid by the common public.
Some product has only 4% of tax levied on them but after GST tax percentage
on garments and other clothe are increased. As GST is the whole new concept
for all the business person and common public. So, it difficult for them to
migrate to the whole new regime and they were facing many difficulties in
filling tax. As it is in its transitional period, professional is less in number and
service of GST are costlier at the beginning’s GST will not be applicable on
petroleum products, electricity. alcoholic products so by this state can impose
tax as per there will. It will also impact market of real estate and add up to
8% of tax on new homes.22
So, it will take time to improve and many other changes will come in the
future to make the new tax regime better.
Conclusion
The praxis of approach should to be designed or composed by understanding
the need of the economy, with regards to financial condition and needs of
22 Nehal Chaturvedi,” Jus Dicere” available at http://www.jusdicere.co.in/blog/gst-new-

dimensions-in-indian-tax-system/ retrieved at 6th April, 2018 1:06pm.
Legal Messenger
common public. Indian producing area is basically asset driven than

innovation driven and, in this way, the information cost and consequent
assessments on it make the division all the more difficult. The usage of GST
would go far in advancing "Make in India" and will give much help to the
manufacturer and nation by disposing of cascading effects of Sales Taxes,
VAT and so on. It will help in improving the taxation law in the country
making it more effective and efficient and help in collecting more tax than
the previous tax system and making our economy stronger.
It can me said that the success of GST depends on its impact on the business
and industries and other common people. “ONE NATION, ONE TAX” can
be game changer and can be proved to be beneficial for the whole country.
“As it is the new tax system so it will be difficult for every person to
understand it and to imply it. But in due course of time it will as per the usage
changes will be made according to the need and as per the need of society so
that it will become more efficient and easy for everybody to understand.
The Goods and Services Tax may have one unique consequence
that turning India’s Constitution from being described as
“Federal with a Unitary Bias” to a “Constitution for the Union
with a Federal Bias”23.
23 Manu,“ GST :New Dimensions in Indian Tax System” available at

System.html.
Legal Messenger
CONSTITUTIONAL SAFEGUARDS TO CIVIL SERVANTS-

CRITICAL ANALYSIS
Adarsh Singh Thakur 1
Introduction
The Government of India has been divided into the Legislature, Executive
and the Judiciary and the Role of the Executive has been termed to be the
most important because it has to implement the laws. The President is the
Head but the most important element of the Executive is the Civil Services
because they are directly responsible for the implementation and observance
of laws. The Civil Servants work in their respective areas and they have to
maintain the law and order situations and to make important decision in their
areas. They are the unbiased section of the people who are not politically
motivated and their only concern is the proper administration of the areas
under them. The Civil Services are so crucial that without them the
administration of the Country would fall apart or at the very least the
effectiveness of the administration system would not be as much effective as
it is now.
Civil Services
The Civil Services is one of the most respected and sought for jobs in India
because of the prestige it brings and thus to select the best candidates who can
act as prudent person and be fair and motivated the appointment to Civil
Services is made through entrance examination and interviews which is so
tough that it is regarded as one of the hardest examinations in the whole world.
In India the Civil Services were introduced by the British when they ruled
India to make the governance of such a vast country, effective. Lord
1
B.A.LL.B 4th Semester, Indore Institute of Law.
Legal Messenger
Macaulay, Islington were some of the eminent people who made great efforts
in the Civil services In India.2
After the Independence of India, the Civil services were given more powers
and they helped in building the nation and India also became the first country
to provide Constitutional provisions for the Civil Services.3
In India there are three categories of civil services which are:
a. All India Services: it includes IAS, IPS and IFS.

b. Central Civil Service: This is exclusively available for the Centre and it
includes the specialized services.
c. State Civil Services: It only deals with the issues of the State.4
Rules of service
For the better administration and the proper working of the Civil Services, the
Constitution of India has provided the Civil Services the rules of the services
under Article 309. According to this Article the Legislature has been
empowered to make the rules regarding these services. But in case the
Legislature has not made the law on the services, the Executive has also been
empowered to frame the rules for the current period of controlling the
Services and the Legislature can later on, make these rules valid by approving
them.
These rules are concerned with the appointment and the terms of services of
the Civil servants and thus is an important part of the Civil Services and as a
result the starting line of Article 309 states “Subject to the provisions of the
Constitution” which implies that neither the Legislature nor the Executive can
2
Dr. UPD Kesari, Administrative Law, 558, 21 st ed. 2016
3
Dr. UPD Kesari, Administrative Law, 557 21 st ed. 2016
4
Decoding the Civil Services of India: Read on to know the various categories, India Today,
18 June 2016, 5:10 PM, https://www.indiatoday.in/education-today/featurephilia/story/civil-
services-categories-319249-2016-04-21
Legal Messenger
frame any such rules which are in violation of the provisions of the
Constitution of India and such an act would be deemed unconstitutional.5
The Supreme Court in the case of West Bengal State Electricity Board v. Desh
Bandhu Ghosh6, held that the service rules were violating Article 14 of the
Constitution by providing for termination of services on a 3 months’ notice
as it was arbitrary.
Even though the Legislature has been empowered by Article 309 of the
Constitution to make the rules regarding the terms and the appointment of the
Civil services, the Legislature has not made any laws regarding that as of now
and as a result, the Executive is exercising its power to make the rules of the
services.7 This has some benefits because the rules are now flexible but at the
same time it has also made the term of the Civil Servants to be jeopardized
because the Executive can very well misuse these powers and make some
rules which may not be in the best interest of the Civil Services which is best
at its functioning only when they are properly protected from any arbitrariness
which allows them to focus in the subsisting problems of the administration
rather than worrying about their own terms and appointment rules.
Tenure (Doctrine of Pleasure)
Tenure means the period of time for which a person has been employed. In
the Civil Services appointment of the Civil Servants is done after they pass
the Public Service Commission Examination and Training and the tenure of
the Civil Servants at Union level rests on the pleasure of the President and the
tenure of Civil Servants at pleasure of the Governor of the Concerned State.8
5
Article 309
6
(1985) 3 SCC 116
7
Dr. UPD Kesari, Administrative Law, 560, 21 st ed. 2016
8
Udai Raj Rai, Constitutional Law-I Structure, 537, 1st ed. 2016
Legal Messenger
This has been provided for under Article 310 of the Constitution of India and
such rule of serving at the pleasure of the President or the Governor is known
as the Doctrine of Pleasure.
Doctrine of Pleasure has its origin from the United Kingdom9 where the
Crown enjoyed this right and the civil servants were working at the pleasure
of the Crown and they could be easily removed from their services without
being told the reason or the cause of their termination and also without having
the right of challenging such termination made by the Crown and they could
also not make claims in the court to be compensated for their early termination
made by the crown. This right of terminating the civil servants at pleasure
also applies to cases where special contract has been made between the crown
and the civil servants and thus it allows the Crown the power to dismiss any
civil servant.10 This right has been provided for to allow the crown to remove
the servants who indulge in unfair practices and proven misbehaviors. But
after some changes in the law, a civil servant has been allowed to claim for
damages for the wrongful termination.
The scope of the doctrine of Pleasure in India has not been held to be as wide
as the scope of this doctrine in England.
Firstly, this doctrine is limited to the tenure of the servants and it does not
affects the other service conditions. As a result, a civil servant has the right to
bring a suit against the Government for recovering not only the arrears of the
salary which is due, but the suit can be brought for other reliefs as well such
as for the refixation of his pay, for the seniority list’s correction and for the
enforcement of his right getting promotion in accordance with the rules of
service.
9
Doctrine of Pleasure As Under The Indian Constitution, Legal Services India,
http://www.legalservicesindia.com/article/1643/Doctrine-of-Pleasure-as-under-the-Indian-
Constitution.html
10
Udai Raj Rai, Constitutional Law-I Structure, 538, 1st 3d. 2016
Legal Messenger
Secondly, where the Constitution of India has expressly provided that servant
holds the office not during the pleasure but during the good behavior, the
doctrine of Pleasure does not apply. The examples of such cases are the office
held by the judges of the Supreme Court and of the High Courts, the Chief
Election Commissioner, the Chairmen and the members of the Union and the
State Public Service Commission etc.
Thirdly, as far as the person who is working or serving in the civil capacity is
concerned, without the compliance of the provisions of Article 311 of the
Constitution of India, they cannot be removed, demoted or reduced in their
ranks, or dismissed. Thus, the provisions for Article 311 provides for two
safeguards which are.
(a) A Civil Servant cannot be removed or dismissed by any subordinate

authority to the appointing authority11. .
(b) A Civil Servant cannot be dismissed or removed or get demoted

without having an enquiry on the charges against him and in which the civil
servant is given a right to be heard.12
Fourthly, in relation to a civil servant there is nothing that can be done which
derogates the fundamental rights of the civil servant, especially those rights
which have been guaranteed under the Articles 14 and 16 of the
Constitution.13
Fifthly, it is also open to the President of India and the Governor of the
concerned State to engage some specially qualified people to an office or post
which is other than the posts that belong to the regular services, with the
condition that in case such a person appointed to the post is prematurely
removed by reason of the particular post being abolished or even otherwise,
11
Article 311(1)
12
Article 311(2)
13
Udai Raj Rai, Constitutional Law –I Structure, 538, 1st ed. 2016
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but without any misconduct on his part, that person will be given the due
compensation.
Need for protecting civil servants
There is a reason why India has given constitutional status to the Civil
Services and has provided for many protections of the civil servants and that
reason is that the civil services are called as the backbone of the
administration.
The civil servants are the ones who are actually out there and are putting up
the work to implement the laws. If there were no civil services, not only would
the administration of the country fall but the whole governance system of the
country would in fact fail and it would lead to unfavorable conditions where
law and order is only a concept and not the reality and there will not be any
rule of law and therefore the importance of the civil services cannot be
undermined.
It is a known fact that without application of a plan, the plan fails similarly
without the actual application and implementation of laws, the laws made by
the legislature will fail. The civil servants look after the part of implementing
these laws and in order to properly implement laws they need protection
because if they are not protected then any higher authority can remove them
from their posts if they decide to properly implement the laws and reject the
demands of the higher authority who may be corrupt and might only be
looking out for their own self-interest. The doctrine of pleasure is useful to
remove those servants who are guilty of proven misbehavior or are inefficient
but this doctrine also empowers the Governors and the President to remove a
civil servant for some political reason and not because of the servant being
guilty. If the protection was not allowed to these servants, then they would be
forced to either get removed for fulfilling their duties or to compromise their
duties and act according to the corrupt authority.
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If such is the case then the belief of the people of India, who have been called
as the Sovereign themselves, in the administrative system and the civil
services would be tarnished and it will do more harm because any act done
under compulsion of corrupt authorities can never lead to progress and
development.
Instead, the administration system would become merely a puppet in the

hands of the corrupt heads who can easily use them to manipulate the
implementation of certain laws which are favored by them and they can also
lead to a situation of chaos because such heads are not usually interested in
the safety of the people and their protection as they are more interested in the
fulfilment of their own self-interest and objectives.
Thus, the Constitution of India has empowered certain exceptions to the

Doctrine of Pleasure in order to allow the civil servants the necessary
protection from the supreme law itself and such protection not only provides
them safeguards but it also gives them a sense of pride and assurance that the
Constitution itself is looking after their needs of protection and is upholding
any arbitrary dismissal to be unconstitutional.
Protection given by the constitution
In the Constitution of India, not only has the doctrine of pleasure been given
under Article 310 but there also have been provided certain safeguards and
protection to the civil servants against this power of the President and the
Governor to allow these servants some freedom and security against arbitrary
removal.
These protection to the Civil Servants has been given under Article 311 of the
Constitution and these protections are:
1. No Dismissal by the subordinate authority (Article 311(1)): Under

this Article a Civil Servant is provided the right of not being removed
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from his services by an authority who is subordinate to the one who had
appointed that Civil Servant.14 This right means that any authority which
is in lower position in terms of rank than the appointing authority does
not have the right to dismiss the Civil Servant but at the same time such
right does not means that the authority who had appointed the Civil
Servant must be the one to also dismiss him, even an authority who is of
the same rank or a higher rank can dismiss the civil servant and such a
dismissal would not violate the rights of the civil servant under Article
311(1).
2. Reasonable Opportunity of Being Heard(Article 311(2): Under this
Article a Civil Servant is guaranteed a right of properly defending
himself as his side of the story or the facts are also to be considered in a
case against him. This article provides that a civil servant cannot be
dismissed or removed or reduced in rank without having been given the
right of being heard.15
This right is available to the civil servant at the inquiry stage that is at the
time when an inquiry is being made against him for finding all the
necessary facts and the relevant evidence to know whether or not the civil
servant is guilty or not. So, this right cannot be availed of at the time of
being given the punishment. Earlier by the Constitution 15th Amendment,
the civil servants had been given the opportunity to defend themselves
and the right of being heard even at the stage of punishment being given
and this right was sanctioned by the 15th Amendment because of the
Supreme Court rulings made prior to the Amendment16. But after the 42nd
Amendment of the Constitution this right if being given the chance of
being heard at the time of punishment was again abolished band now the
civil servants are given this right only at the stage of the inquiry being
14
Dr. JN Pandey, Constitutional Law of India, 712, 53 rd ed. 2016.
15
ibid
16
Dr. JN Pandey, Constitutional Law of India, 713, 53 rd ed. 2016
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made against them and thus if on inquiry they are found guilty, they
cannot defend themselves later on and they will get punished with the
removal, dismissal or reduction in their ranks.
There are some exceptions which have been given against the
protection given to the civil servants under Article 311(2) in which
the civil servants can be excluded from availing their right of being
heard in the following situations:
A. The Civil Servant is a Convicted criminal: If a person has been
convicted in a criminal case and as result he has been reduced in rank
or has been dismissed or removed from his post, then in such a case
he cannot claim to get the right of being reasonably heard as it will
not apply in this situation.17 In the case of Venkateshwarlu v. State of
Andhra Pradesh18, the Supreme Court also held that even if acquittal
was done for a Civil Servant which was other than an honorable
acquittal, then the departmental proceedings are still bound to be
followed against that Civil Servant.
B. Impossibility or Impracticability to hold inquiry: If in a case by a
reason of impracticability to hold the inquiry, the authority charged
with the task of holding the inquiry is convinced of the
impracticability, he can exclude the civil servant from availing his
right of being heard but the authority has to put the reason behind
impracticability in writing in order to use this exception against the
Article 311(2)
C. Interest of the Security of the Nation: Another exception to this
right is that if the president of India or the Governor of the concerned
State where such exception is being taken, is convinced that in the
17
Dr. JN Pandey, Constitutional Law of India. 722, 53 rd ed. 2016
18
AIR 2012 SC 2955
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security of the Nation it is not practical to hold the proceedings, the

right under Article 311(2) of the civil servant can be excluded.
One of the features of the protection given under Article 311 is that these
safeguards are available top only those government employees who hold a
civil post and therefore any person who holds a post in the defense forces is
not allowed to get the protection and the safeguards which have been provided
for under Article 311. The reason behind it is that the person holding the
defense post are governed by the rules of the court martial and their trials are
of different nature and thus only the people holding the civil post are allowed
to get the safeguards of Article 311 which the right not to be dismissed by a
subordinate authority (311(1)) and the right of being heard (311(2)).
Other than these safeguards the constitution also provides for the
establishment of the Administrative Tribunals. As early as in 1958, the Law
Commission had suggested for the establishment of the Administrative
Tribunals19 and after the 42nd Amendment Act, 1976 Part XIV-A was added
in the Constitution which added new Articles 323-A and 323-B. Under these
articles the Parliament had been empowered with setting up the administrative
tribunals which would have the powers to decide the matters of disputes
relating to the Civil Services and thus it would not only remove the burdens
from the Supreme Court and the High Courts but it would also allow for the
speedy trial of the disputes.
In 1985 the Administrative Tribunal Act was enacted by the Indian

Parliament which allowed for establishing Administrative tribunals for the
Central and the State Civil Services and also allowed two or more States to
have a common or joint tribunal.
19
Dr. UPD Kesari, Administrative Law, 569, 21 st ed. 2016.
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Thus many rights have been provided to protect the civil servants from the
arbitrary removal and the problem of the Doctrine of Pleasure.
Faults in the protection
Even though the Constitution has provided for the protection of the Civil
Services but still these safeguards are suffering from many shortcomings
which are:
1. Misuse: Even though the Constitution has provided for the protection of
the Civil Services to protect the Civil Servants but at the same time it has
also led to some Civil Servants misusing these rights. It is a known fact
that the Civil Servants are viewed by the general people as the corrupt
and greedy people who misuse their powers and the protections given to
them in order to serve their own needs. Such types of corrupt servants
usually are the ones who are empowered by the higher ups who are also
corrupt and these higher ups usually offer a share in the proceeds from
the corrupt practices and at the same time an honest civil servant is often
charged on flimsy grounds because they cater to their duties20. Another
misuse of the protection is the exception to Article 311(2) because the
Governors and the President can exclude a servant from availing the right
under the Article on the grounds of Security of Nation but there is no
accountability of the President and the Governor regarding such actions
and therefore they are easily misused.
Thus the protection given by the Constitution is being misused by many
corrupt civil servants and the provisions need some change.
2. Loopholes in Protection: There are many loopholes in the protection
given to the Civil Servants which is used by the higher authorities many
times in order to punish those Civil Servants who do not agree to indulge
20
The stained steel frame, RK Raghavan, The Hindu, 19 June 2018, 3:30 PM,
http://www.thehindu.com/opinion/lead/The-stained-steel-frame/article14023107.ece
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in activities as per their wishes. One Such loophole is the transfer of

employees to another locations. The Constitution only provides for the
prevention of arbitrary dismissal, removal and reduction in rank but
many times if a Civil Servant rejects the corrupt practices of a higher
authority like a minister he is simply transferred to another place to avoid
the hassle. Another loophole that is present in the provision is
Compulsory Retirement because often times the grounds of Compulsory
grounds are flimsy and not credible but still they are upheld and thus they
can be easily used to remove the civil servants from their posts despite
the Constitutional protections.
3. Extension of Services: While the Constitution provides for the
safeguards against the dismissal of the services of the civil servants it
does not provides for the provisions regarding the extension of the
services and it is a great fault in the protection to the civil servants
because the higher authorities usually extend the period of services of the
Civil Servants which is usually done for those servants who serve the
needs of the higher authorities rather than the needs of the people and
while compulsory retirement despite its fault is necessary, removing the
extension of service of officers well beyond their age of retirement
should also be considered.21
4. Arbitrary Transfers: One of the biggest faults in the entire provisions
regarding the protection of Civil Servants is that there is no provision to
prevent unjust and arbitrary transfer of the Civil Servants and as a result
the civil servants have to either choose to agree to the wishes of the
Corrupt higher ups or to accept transfer and go to a new place where
again they might be transferred by the authority over that place.
21
Indian Civil services replete with constitutional anomalies as reforms continue to be
anathema, Madhav Godbole, Firstpost 19 June 2018, 3:42 PM,
https://www.firstpost.com/india/indian-civil-services-replete-with-constitutional-anomalies-
as-reforms-continue-to-be-anathema-3223796.html
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5. Problem of Administrative Tribunals: Although many years have

passed since the setup of the Administrative Tribunals, their performance
has not been nearly satisfactory as was hoped to be. The Malimath
Commission had stated that the Administrative Tribunals were
unsuccessful to inspire the confidence of the public and its reason is the
lack of competence and objectivity in their judicial approach.22 There are
many States who have not yet established the Administrative Tribunals
and even the States where they have been setup, their functioning has not
been good as a result of which the protection given by the Constitution
to the Civil Servants under Articles 323-A and 323-B have been suffering
from faults in the implementation sphere.
6. Lack of Proper Remedies: Since the Administrative Tribunals not being
able to live to their potential and underperforming as of now, the Civil
Servants do not have proper remedies available to them. Many have to
approach the Supreme Court under Special Leave Petition23 but all the
petitions are not accepted and many times because of the already
significant over burden on the Judiciary, the Civil Servants are not able
to avail the remedies timely. For e.g. if a civil servant is unjustly removed
three years before the age of his retirement, the case in many situation
even exceeds three years and even if the case was decided in three years
the Civil Servant is robbed out of his chance of serving out his remaining
time and thus the authority that removed him ultimately used the current
protection system against the very civil servant for whom these
protections were made.
Why the doctrine of pleasure still relevant today?
Even though the researcher has provided in this research that the doctrine of
pleasure has been the main reason for the Constitutional Safeguards, one
22
Dr. UPD Kesari, Administrative Law, 577, 21st ed. 2016
23
Article 136
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question still emerges as to why is the Doctrine of Pleasure which was derived
from the Common Law of England and provided for the tenure of civil
servants being at the pleasure of the crown still relevant today? The reason is
because even though the Civil Servants require the protection of the
Constitution against arbitrary dismissal but they are also not free from certain
shortcomings themselves. The main reason as to why the Doctrine of Pleasure
is still necessary is because it allows the Governors and the President to
remove from the posts such officers whose work is not satisfactory and they
are guilty of proven misbehavior.
If there was no doctrine of pleasure then the Civil Servants would have been
left unchecked and without having counter measures against the over
powering of any unit of administration the governance and administration is
not possible and therefore to avoid the civil servants to act out of their limits
and to keep a check ion their activities the doctrine of Pleasure is still needed
in the present scenario.
Suggestions
The following are the suggestions the researcher finds to be necessary to

improve the present safeguards to the civil servants:
1. All the States should be required to have Administrative Tribunals setup

in their States.
2. In every five years, a committee should be setup to review the current
laws regarding the civil servants and they should prepare reports to be
submitted to the President.
3. A Review Committee for the Administrative Tribunals should also be
setup in order to review their functioning and to make suggestions
regarding their performance which should be followed by the Tribunals.
4. A law should be passed in the legislature wherein on the transfer of a
civil servant, the authority who is transferring the civil servant has to put
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up in writing the reason behind the transfer of the civil servant before the
specified period and the authority should be held accountable if the
ground is not a valid one.
5. The Civil Servants should be allowed have a reporting system with the
tribunals wherein they can anonymously provide the information
regarding any sort of misuse of the constitutional safeguards by any
authority.
6. The Extension of Services should not be allowed and after the attainment
of the age fixed for retirement, the civil servant must not be allowed to
have his tenure extended.
7. If there is over burdening on the tribunals regarding the matters then in
that case temporary additional tribunals should be setup in the States
where such problem emerges.
Conclusion
The Constitution of India is the first to make the provisions regarding the civil
services in a constitution. The Doctrine of Pleasure is allowed in India under
Article 310 of the Constitution and under it the Civil Servants work at the
pleasure of the President or the Governor but under Article 311 the civil
servants have been provided with some safeguards and also under article 323-
A and 323-B by allowing the setting up of Administrative Tribunals, The
constitution has given due notice to the needs of the civil services but these
safeguards are not exhaustive and they suffer from many faults as a result of
which the safeguards of the civil servants are often compromised which leads
to corruption and inefficiency in the administration. The Administrative
Tribunals have not been able to perform as much as they were expected to do
and by using arbitrary transfers and other measures of issuing the safeguards,
these safeguards need certain changes like the setting up of Administrative
Tribunals in every State, regulating the transfer of the Civil Servants among
others. Civil Services are the backbone of the administration and thus there is
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a need to constantly review the safeguards given to them and to improve any
shortcomings in their protection because only when the civil services are duly
protected, the administration of the country can be effective and efficient.
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TRIBAL DISPLACEMENT AND DEVELOPMENT IN

INDIA: THE LEGAL PERSPECTIVE
Aishwarya Dash 1
Introduction
India has the second largest concentration of tribal population, after that of
the African continent. Tribals are generally called as ‘Adivasis’ implying
‘original Inhabitants’ of the land. There are about 360 tribal groups speaking
more than 100 languages and dialects in India. They have been specified as
Scheduled Tribes (STs) in accordance with the Presidential orders issued
since 1950.2 During recent years, displacement of tribals has drawn the
attention of several scholars. The development schemes like dams, mines,
industries and various projects have resulted in the large displacement of
tribals between. The illiterate and powerless tribals have been compelled to
leave their resource-rich regions and migrate to other places. This has resulted
in the problem of their resettlement. In many areas, tribals have resisted the
take-over of their support system and started agitations. Such tribal agitations
have been reported from Andhra Pradesh, Bihar, Karnataka, Arunachal
Pradesh, Orissa, and Madhya Pradesh and so on. In the Post-Independent
period, there are various safeguards for the protection and development of
Scheduled Tribes (STs) in accordance with the special provisions mentioned
in the Indian Constitution such as: Article 15(4), 16(4), 19 (5), 23, 29, 46,
164, 275(1), 330, 332, 334, 335, 338, 339(1), 339(2),371(A), 371(B),371(C),
1
Advocate, B.A.L.L.B.
2
Ram Babu Mallavarapu, Development, Displacement and Rehabilitation: An Action
Anthropological Study on Kovvada Reservoir in West Godavari Agency of Andhra Pradesh,
India, World Academy of Science, Engineering and Technology International Journal of
Social, Behavioral, Educational, Economic, Business and Industrial Engineering Vol:2,
No:5, 2008, pg 579. http://waset.org/publications/12773/development-displacement-and-
rehabilitation-an-action-anthropological-study-on-kovvada-reservoir-in-west-godavari-
agency-of-andhra-pradesh-india (Last seen on:17.06.2018).
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Fifth Schedule and Sixth Schedule.3 Article 366 (25) of the Constitution of
India defines scheduled tribes as "such tribes or tribalcommunities or parts of
or groups within such tribes or tribal communities as are deemed underArticle
342 to be Scheduled Tribes for the purposes of this constitution". Article 342
of the Constitution of India prescribes the manner and procedure to be
followed in the matter of specification of scheduled tribes.
The Parliamentary Standing Committee on the Welfare of Scheduled Castes

and Scheduled Tribes in a report submitted to the Lok Sabha on 23 October
2008 observed, “Notwithstanding Act and regulations to control alienation of
tribal land, tribal people are being alienated from their land in the name of
development and due to insufficient amount given to them for their land, they
migrate to other places in search of livelihood.” It further stated that “tribals
should not suffer in the name of development” and recommended that “the
Ministry of Tribal Affairs should take immediate su-moto action whenever it
is reported that tribal people are agitating against displacement and
endangerment to their lives.”4
Development induced displacement
Independent India began with the Nehru vision that big dams and mega
development projects are modern temple of development. In the post-
independence period India has sought rapid economic growth through
planned development. This has entailed large scale investments in dams,
roads, mines, power plants, industrial estate new cities and other projects
involving land acquisition. Since independence land has been acquired from
people particularly from farmers for the purpose of expending towns/cities by
3
Supra at pg 580.
4
Tribal Displacement in the Name of Development, dated 07.09.2012,
https://socialissuesindia.wordpress.com/2012/09/07/tribal-displacement-in-the-name-of-
development/ (Last seen on 19.06.2018).
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converting agricultural land into non agricultural land. In the name of

industrialization a larger portion of land was being acquired from the people
for ‘public purpose’ and ‘development’ and was later handed over to private
companies.5
The case of the Narmada Dam exemplifies displacement without proper

rehabilitation. Thousands of people mostly tribal have been displaced due to
the dams built across the river Narmada. More than 2,000 families displaced
by the multipurpose Hirakund dam project in Sambalpur district of Orissa
were not compensated as of February 2002. In the 2007, on the land
acquisition issue is Singur for setting up a automobile project, Nandigram
area of west Bengal turned into a battle field between the state police officials
and anti-land acquisition Bhumi Uchhed Pratirodh committee comprising of
the poor who were unwilling to sell their lands.6 The Calcutta High Court
declared the police killings as unconstitutional and unjustified. In 2016,
Supreme Court held that acquisition of land was illegal and as such land are
to be returned back.
Indian Land laws
The Land Acquisition Act of 1894 (hereinafter referred to as “1894 Act”),

introduced by the then British Government, still continues, with some
amendments in 1967 and 1984 and this Act facilitates the Governments to
acquire the peoples land, by compulsion for both the public and private
purposes. This Act helps the State as a weapon for immediate land
acquisition. In most of the cases, the Government officials have been paying
5
Acqusition of Land: Development, displacement and Human Rights, Chapter V,
http://shodhganga.inflibnet.ac.in/bitstream/10603/48090/12/12_chapter%205.pdf (Last seen
on: 17.09.2016).
6
Janhavi S S, An Overview of Land Acquisition Act and Human Rights Issues, International
Journal of Humanities and Social Science Invention ISSN (Online): 2319 – 7722, ISSN
(Print): 2319 – 7714, Volume 2 Issue 9 ǁ September. 2013ǁ PP.44-49,
http://www.ijhssi.org/papers/v2(9)/Version-1/H0291044049.pdf (Last seen on: 17.06.2018).
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the compensation to oustees after prolonged time, where as they acquire the
lands with one notification and with in no time, but the Land Acquisition Act
did not say anything on the type or nature of compensation payable to oustees
and time period for payment of compensation. Land acquisition in Scheduled
Areas is not possible, as there are number of Protective Land Laws,
Legislations, Regulations, Forest Laws, Government Policies, Court Orders
and Judgments, and Government Orders (GOs) which prohibit the land
transfer in Scheduled Areas. Inspite of all these protective and welfare laws
made by the government for the welfare of tribals, the Governmental agencies
have been acquiring the tribal lands in the name of National interest in
contravention to all the Constitutional Provisions. It indicates that all the
Agency Laws are being manipulated where the legal access to tribal lands and
resources is denied.
Land is acquired in accordance with previously Land Acquisition Act 1894,

which was passed by the colonial government to make it possible for the state
to acquire private land for ‘public purpose’ and now under the Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 (hereinafter referred to as “Land Acquisition Act,
2013”) . Albeit this, the term ‘ public purpose’ that figured in this act is not
defined properly. In fact, the absence of an explicit and proper guideline,
which defines the term public purpose, makes the application of the whole act
an arbitrary one. The basic features of these Acts are to compensate a person
who is losing the property in the process of acquisition of land. It does not go
into the question of a person who is losing his source of living due to the
forceful acquisition of the land in which he was making a living by hiring his
labor. Thus, land acquisition has a legal standing, rehabilitation has no legal
standing. These projects have destabilized the material base of the tribals in
huge numbers, and have dethroned them from their habits and marginalized
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them.7 Thus, the capital penetration for the matter, “development” has not
integrated into the very marginalized and needy section of the society and in
turn the capitalistic framework has alienated and scheduled them from the
society.
Procedure for seeking approval for diversion of forest land for non-forest
purpose
The Right to Fair Compensation and Transparency in Land Acquisition,

Rehabilitation and Resettlement Act, 2013 requires prior consent of Gram
Sabha for acquiring land in Scheduled Areas where such acquisition is the
last resort8. The appropriate Government acquires land for its own use, to hold
and control including for Public Sector Undertakings and for public purpose
and shall include purposes like acquisition relating to naval, military, air-
force and armed forces of the Union, for infrastructure projects, project for
project affected families, project for housing, project for residential purposes
to the poor or landless, etc.9 Chapter II deals with determination of Social
Impact and Public Purpose. Whenever the appropriate Government intends to
acquire land for a public purpose, it shall consult the concerned Panchayat,
Municipality or Municipal Corporation, at the village level or ward level, in
the affected area and carry out a Social Impact Assessment (SIA) study in
consultation with them10 and there after conduct a public hearing and finally
publish the SIA. Whenever, it appears to the appropriate Government that
7
Sujit Kumar Mishra, Development, Displacement and Rehabilitation of Tribal People: A
Case Study of Orissa,
J. Soc. Sci., 6(3): 197-208 (2002), Kamla-Raj 2002,
http://rlarrdc.org.in/images/Displacement%20and%20Rehabilitation%20of%20Tribal.pdf
(Last seen on: 20.06.2018)
8
Section 41 of The Right to Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013.
9
10
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land in any area is required or likely to be required for any public purpose, a
preliminary notification to that effect along with the details of the land to be
acquired in rural and urban areas shall be published11 and thereafter a
preliminary survey of land shall be carried out.
Sub-section (2) of Section 3 of Scheduled Tribes and Other Traditional Forest

Dwellers (Recognition of Forest Rights) Act, 2006 provides that
notwithstanding anything contained in the Forest (Conservation) Act, 1980,
the Central Government shall provide for diversion of forest land for certain
facilities managed by the Government, as specified in that Section, which
involve felling of trees not exceeding seventy-five trees per hectare, provided
that such diversion of forest land shall be allowed only if, the forest land to
be diverted for the purposes mentioned in the said sub-section is less than one
hectare in each case; and the clearance of such developmental projects shall
be subject to the condition that the same is recommended by the Gram Sabha.
Safeguarding Provisions
The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of

Forest Rights) Act, 2006, has been enacted to recognize and vest the forest
rights and occupation of forest land in forest dwelling Scheduled Tribes and
other traditional forest dwellers, who have been residing in such forests for
generations, but whose rights could not be recorded.
This Act not only recognizes the rights to hold and live in the forest land under
the individual or common occupation for habitation or for self-cultivation for
livelihood, but also grants several other rights to ensure their control over
forest resources which, inter-alia, include right of ownership, access to
collect, use and dispose of minor forest produce, community rights such as
11
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nistar; habitat rights for primitive tribal groups and pre-agricultural

communities; right to protect, regenerate or conserve or manage any
community forest resource which they have been traditionally protecting and
conserving for sustainable use12 and also gives the right of settlement and
conversion of all forest villages, old habitations, un-surveyed villages and
other villages in forest, whether recorded, notified, or not, into revenue
villages have been recognized as one of the forest rights of forest dwelling
Scheduled Tribes and other traditional forest dwellers on all forest lands.13
Sections 43 to 50 of The Right to Fair Compensation and Transparency in

Land Acquisition, Rehabilitation and Resettlement Act, 2013 contain
provisions for Resettlement & Rehabilitation as part of the statute and specific
safeguards to STs in respect of Scheduled areas under Section 41 and 42. And
Section 41 clearly lays down special provision for Scheduled Caste and
Schedules Tribe. Section 4(5) of The Scheduled Tribes and Other Traditional
Forest Dwellers (Recognition of Forest Rights) Act, 2006 provides that no
member of a forest dwelling Scheduled Tribe or other traditional forest
dweller shall be evicted or removed from land under his occupation till the
recognition and verification procedure for settlement of forest rights is
complete. 14
CASE STUDY: ORISSA MINING CORPORATION LTD V.

MINISTRY OF ENVIRONMENT AND FOREST AND ORS.-
(2013) 6 SCC 476
Facts:
12
Section 3 of The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of
Forest Rights) Act, 2006.
13
Section 3(1)(h) of the Scheduled Tribes and Other Traditional Forest Dwellers
(Recognition of Forest Rights) Act, 2006.
14
Press Information Bureau Government of India Ministry of Tribal Affairs, Acquisition of
Tribal Land , 11th March, 2015, http://pib.nic.in/newsite/PrintRelease.aspx?relid=116797
(Last seen on: 18.06.2018).
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The Niyamgiri Hills near Hundaljaliin Rayagada and Kalahandi districts in

State of Odisha are religious shrine or abode of God Niyam Raja for the
Scheduled Tribe (ST) and Traditional Forest Dwellers (TFD) of the region.
These tribe and TFD have been worshipping the hills for many decades and
had been using the resources of the hills for their live hood for centuries
having cultural and traditional rights over the region that have been already
recognised under the Scheduled Tribe and other traditional Forest Dwellers
(Recognition of Forest Rights) Act, 2006 or the Forest Rights Act, 2006.15
The company Sterlite Industrial sought permission to construct a bauxite ore
mine on forest land in Niyamgiri Hills in Orissa. The bauxite mining project
requires forest clearance in these hills which have been natural habitat of this
tribe for years and shall also be having an adverse impact on the biodiversity
and environment of the region which is religious shrine for them.16 The
mining activity in the hills shall also interfere with their customary and
traditional rights that been vested in them by virtue of custom and the Forest
Act. This project on the other hand is also essential as it is supporting the
Aluminium refinery Project of Sterlite Industries which has been largest
manufacturer of Aluminium in the country. The Ministry of Environment and
Forests granted provisional environmental clearance, to be made final subject
to an assessment of the planned construction’s impact on the Dongria Kondh
community.17
Subsequent impact studies conducted by various official bodies concluded

that the proposed construction would interfere with the Dongria community’s
rights and should be rejected. However, the project was already embarked
upon and a refinery was built at the bottom of the Niyamgiri Hills by Vedanta.
15
Heffa Schucking, Briefing on Vedanta and Niyamgiri Hills,
http://www.banktrack.org/manage/ems_files/download/briefing_on_vedanta_and_the_niya
mgiri_hills/vedanta.pdf (Last seen on: 17.06.2018).
16
Para 1.
17
Para 7.
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The Ministry officially rejected Sterlite’s application for environmental

clearance, stating that the venture had displayed a blatant and shocking
disregard for the rights of the tribal groups concerned, which are protected by
the Forest Rights Act. In the present case, the company is asking the Court to
overturn the Ministry’s rejection
Judgment: The Court noted that agriculture was the only source of livelihood
for the tribes concerned, apart from the collection and sale of minor forest
produce to supplement their income. The tribes had great emotional
attachments to their lands. The United Nations Declaration on Rights of
Indigenous Peoples notes that tribal forest dwellers have a right to maintain
their distinctive spiritual relationship with their traditionally owned or
otherwise occupied and used lands.18 Vedanta had repeatedly argued that their
project would help bring ‘development’ to the Dongria, a mainstream line
about the beneficial impact that such a venture would have on a ‘backward or
primitive tribe’. However, the construction of an open-pit mine would have
devastated their habitat, resulting in negligible ‘development’. The mine’s
accompanying initiatives were also all geared towards the permanent
alteration of the Dongria’s way of life and independence.
The 2006 Act has been enacted conferring powers on Gram Sabha constituted
under Act to protect community resources, individual rights, cultural and
religious rights. Further, the Act also states that recognized rights of forest
dwelling STs and other TFDs include responsibilities and authority for
sustainable use, conservation of bio-diversity and maintenance of ecological
balance and thereby strengthening conservation regime of forests while
ensuring livelihood and food security of forest dwelling STs and other TFD.
Moreover, Section 6 of 2006 Act confers powers on Gram Sabha to determine
18
CRIN, Orissa Mining Corporation Ltd v. Ministry of Environment and Forest and Ors.
https://www.crin.org/en/library/legal-database/orissa-mining-corporation-v-ministry-
environment-forest-others (Last seen on: 17.06.2018)
Legal Messenger
nature and extent of "individual" or "community rights"; however, said matter

had not been placed before Gram Sabha for their active consideration but only
individual claims and community claims received from Rayagada and
Kalahandi Districts most of which Gram Sabha had dealt with and settled.
Hence, State of Orissa was directed to place these issues before Gram Sabha
then Gram Sabha should communicate its finding to Respondent on basis of
which it should take a final decision on grant of stage II clearance for Bauxite
Mining project and hence Writ Petition was disposed off.
The Apex Court thus pronounced a landmark judgment wherein it not only
upheld and recognised the rights of Schedule Tribe and traditional Forest
dwellers that have often been marginalised in the wake of development
projects but also recognised the importance of big infrastructure projects
which not only provide platform for 'development' but also provide
opportunities of employment and cannot be disregarded completely in view
of 'rights'.19
Conclusion
The core idea of the right to property is a right to the thing itself not a right to
the value of it. Therefore, compensation is not a replacement for property, it
is only indemnification for the losses of the private owner. Hence, the right
to property cannot be regarded as merely a right to compensation and it can
not be said that a State has a power to take private property as long as it
compensates the owner. Therefore in order to take private property there must
be strong public necessity. The acquisition of tribal land has evicted them
from their homestead and deprived them of a decent living, which can be
marked by the widespread poverty, high incidence of hunger and starvation
death, increasing migration of the people to the neighbouring states in search
19
Law Senate, Orissa Mining Corporation v Ministry of Environment and Forest,
http://www.lawsenate.com/case-studies/orissa-mining-corporation-v-ministry-of-
environment-and-forest.html(Last seen on: 16.06.2018).
Legal Messenger
of a minimum livelihood. Thus, development projects have impoverished and

brutally violated the basic human rights of the people in the areas.
Tribals have paid the highest price of national development because their
regions are resource rich: 90 percent of all coal and around 50 percent of
the remaining minerals are in their regions. Also the forest, water and other
sources abound in their habitat. The indigenous/ tribal peoples who
constituted 8% of the total population of India at 1991 census make
up 55% of the total displaced persons due to development projects up to
1990. According to the Ministry of Tribal Affairs (MTA) nearly 85 lakh
tribals were displaced until 1990 on account of mega developmental projects
like dams, mining, industries and conservation of forests etc. Lakhs of tribals
have been displaced from 1990 onwards (due to the so-called economic
liberalization policies of the Center under pressure from the Western lenders)
without proper rehabilitation.20 Yet, no proper study has been conducted in
regard to displacement and rehabilitation of tribals – who cares for voiceless
poor tribals as long as corporate czars are happy?
Displacement cannot be taken for granted as an inevitable price to pay for
development. People who have suffered due to displacement are by no means
a small minority, but displacement cannot be justified by using utilitarian
logic.
20
Tribal Displacement in the Name of Development, September 7, 2012.
https://socialissuesindia.wordpress.com/2012/09/07/tribal-displacement-in-the-name-of-
development/ (Last Seen on: 17.06.2018).
Legal Messenger
BIO-MEDICAL WASTE MANAGEMENT IN REGENERATIVE

MEDICINE: A STUDY *
Dr.Chandrika 1
Introduction:
The Greek Titan, Prometheus, is a fitting symbol for regenerative medicine.2

As punishment for giving fire to Humankind, Zeus ordered Prometheus
chained to a rock and sent an eagle to eat his liver each day; however,
Prometheus’ liver was able to regenerate itself daily, enabling him to survive.3
The scientific researchers and medical doctors of today hope to make the
legendary concept of regeneration into reality by developing therapies to
restore lost, damaged, or aging cells and tissues in the human body. 4
Regenerative medicine aims at serving the body to make a fresh functional
tissue to restore vanished or malfunctioning ones as it has the potential to heal
or replace tissues and organs damaged by age, disease, or trauma, as well as
to normalize congenital defects.5 Scientist communities are hopeful that this
will assist to offer therapeutic cure for certain conditions where existing
therapies are insufficient. This area of medicine is very much founded on stem
cell technology. However, like many innovations, stem cell research has been
a source of major ethical, legal, and social controversy since the first
successful culturing of human Embryonic Stem Cells in the laboratory in
1998 by Dr. Jamie Thomson who directed the group that reported the first
isolation of Embryonic Stem cell lines from a non-human primate in 1995,
work that led his group to the first successful isolation of human embryonic
1
*Dr. Chandrika, Department of Laws, Panjab University, Chandigarh.
2
Text retrieved on 2017-10-20 from
https://stemcells.nih.gov/sites/all/themes/stemcells_theme/stemcell_includes/Regenerative_
Medicine_2006.pdf
3
Ibid.
4
Ibid.
5
Angelo S. Mao, David J. Mooney, Regenerative Medicine: Current Therapies And Future
Directions, retrieved on 2017-10-20 from
http://www.pnas.org/content/112/47/14452.full.pdf.
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stem cell lines in 1998,6 the emerging challenge being the per capita per
patient generation of wastes in health care units which are composed of
hypodermic needles, scalpels, blades, surgical cottons, gloves, bandages,
clothes, discarded medicine and body fluids, human tissues and organs,
chemicals, radioactive wastes, mercury containing instruments, PVC plastics
etc. These wastes now threaten the public since, the health care foundations
are situated in heart of city and therefore medical waste, if not properly
managed can cause dangerous infection and poses a potential threat to the
surrounding environment, persons handling it and to the public.7
Concept of Stem Cells
Stem cells are the basic cells of every tissue and organ of a human body. Stem
cells carry two significant characteristics that discriminate them from other
types of cells; first they are unspecialized cells that renew themselves for long
periods through cell division and second that under certain physiologic or
experimental conditions, they can be induced to become cells with special
functions such as the beating cells of the heart muscle or the insulin producing
cells of the pancreas.8 Scientists primarily work with two kinds of stem cells
from animals and humans i.e. Embryonic Stem Cells and Non-Embryonic
Stem Cells or Adult Stem Cells, which have different functions and
characteristics.
a) Embryonic stem cells: Human embryonic stem (ES) cells capture the
imagination because they are immortal and have an almost unlimited
6
Text retrieved on 2014-04-30, from
http://discovery.wisc.edu/home/morgridge/research/regenerative-
biology/leadership/leadership-home.cmsx.
7
A case study of biomedical waste management in hospitals, Global journal of health science,
2009,1:82.
8
Stem Cell Information: National Health Institute, retrieved on 2014-05-04 from
http://stemcells.nih.gov/staticresources/info/basics/StemCellBasics.pdf
Legal Messenger
developmental potential.9 After many months of growth in culture dishes,

these remarkable cells maintain the ability to form cells ranging from
muscle to nerve to blood — potentially any cell type that makes up the
body.10 The proliferative and developmental potential of human
Embryonic Stem cells promises an essentially unlimited supply of
specific cell types for basic research and for transplantation therapies for
diseases ranging from heart disease to Parkinson’s disease to
leukaemia.11 These are obtained from a variety of species which includes
humans as well. They are described as pluripotent which means that they
can generate all the different types of cells in the body and can be
obtained from the blastocyst which is a nascent stage of growth
consisting of a mostly hollow ball of just about 150-200 cells barely
discernible to the bare eye.12 The ability of these cells to generate all of
the cell types of the body is why they offer such potential for scientific
and medical purposes and why they are of great interest in the research
community.13 Basically, Human Embryonic Stem cell lines are derived
from embryos produced by in vitro fertilization (IVF), a process in which
oocytes and sperm are placed together to allow fertilization to take place
in a culture dish.14 Clinics use this method to treat certain types of
infertility, and sometimes, during the course of these treatments, IVF
9
Junying Yu and James A. Thomson, ‘Embryonic Stem Cells’, in Regenerative Medicine
2006, 1-12, at 1, retrieved on 2017-10-20 from
https://stemcells.nih.gov/sites/all/themes/stemcells_theme/stemcell_includes/Regenerative_
Medicine_2006.pdf
10
Ibid
11
Ibid
12
Stem Cell Facts, By International Society For Stem Cell Research, retrieved on 2014-04-
04 from www.isscr.org/docs/default-source/isscr-
publications/isscr_11_stemcellfactbrch_fnl.pdf
13
Mark Noble, ‘Stem Cells: Their Potential for Treating PD’, retrieved on 2014-05-04 from
http://www.pdf.org/en/spring05_Stem_Cells
14
Supra note 8.
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embryos are produced that are no longer needed by the couples for
producing children.15
b) Adult Stem Cells: Non-ESCs are probably lower in the stem cell
hierarchy and are thought to have lost the pluripotent capability.16
However, throughout the organism’s life, they maintain a multipotent
differentiation potential.17 These are Tissue-specific stem cells, which are
sometimes referred to as “somatic” stem cells, are already somewhat
specialized and can produce some or all of the mature cell types found
within the particular tissue or organ in which they reside.18 Because of
their ability to generate multiple, organ-specific, cell types, they are
described as “multipotent”, e.g. stem cells found within the adult brain
are capable of making neurons and two types of glial cells, astrocytes and
oligodendrocytes.19 The ethical debate on Embryonic Stem Cells fuelled
a constant search for an adequate “ethically pure” source.20 Non-ESCs
can be derived from several sources including amniotic fluid, umbilical
cord tissue and bone marrow.21 Amniotic fluid contains several cell types
derived from the developing foetus.22 Umbilical cord stem cells are non-
Embryonic Stem Cells that are closer to the embryo and they possibly
retain some pluripotent characteristics which can be harvested from cord
blood and also from cord lining.23 This source of stem cells has the
advantage of being normally discarded, with no morbidity to both mother
15
Ibid.
16
S. Bajada, ‘Stem Cells in Regenerative Medicine’, Topics in Tissue Engineering, Vol. 4,
(2008), 1-28, at 8 retrieved on 2017-10-20 from
http://www.oulu.fi/spareparts/ebook_topics_in_t_e_vol4/abstracts/bajada.pdf
17
Ibid.
18
Supra note 4.
19
Ibid.
20
Supra note 17.
21
Ibid.
22
Ibid
23
Ibid
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and newborn leading to a limitless supply with the possibility of isolation

of huge numbers of cells with no or few ethical considerations which
makes them ideal for stem cell banking.24 Also fat and skin tissue and
monocytes might be an adequate alternative which finds place in non-
Embryonic Stem Cells or adult stem cells.25
c) Somatic Cell Nuclear Transfer (SCNT): The other major source of

human Embryonic Stem cells involves a technique in which the nucleus
of an adult cell from the patient's own body is transferred into an
unfertilized egg from another source to generate Embryonic Stem cells
and is known as Somatic Cell Nuclear Transfer (SCNT).26 In humans,
Somatic Cell Nuclear Transfer (SCNT) was envisioned as a means of
generating personalized embryonic stem cells from patients’ somatic
cells, which could be used to study disease mechanisms and ultimately
for cell-based therapies.27
d) Induced Pluripotent Stem Cells (iPSCs): Like any other scientific

advance, induced Pluripotent Stem Cells (iPSCs) are adult differentiated
cells that have been genetically reprogrammed to an embryonic stem
cell–like state by being forced to express genes and factors important for
maintaining the properties of pluripotent stem cells.28 In 1962, John
Gurdon reported that his laboratory had generated tadpoles from
unfertilized eggs that had received a nucleus from the intestinal cells of
adult frogs.29 Another success in birth of Dolly, the first mammal
24
Id, at 9.
25
Id at 20.
26
Supra note 4.
27
Tachibana, ‘Human Embryonic Stem Cells Derived by Somatic Cell Nuclear Transfer,
Cell (2013)’, retrieved on 2014-05-05 from http://dx.doi.org/10.1016/j.cell.2013.05.006
28
National Guidelines For Stem Cell Research,(2013), 1-45, at 41, retrieved from
http://icmr.nic.in/ethical_guidelines.pdf
29
Shinya Yamanaka, ‘Induced Pluripotent Stem Cells: Past, Present and Future’, retrieved
on 2014-05-04 from http://www.sciencedirect.com/science/article/pii/S1934590912002378
Legal Messenger
generated by somatic cloning demonstrated that even differentiated cells

contain all of the genetic information required for the development of
entire organisms and oocytes contain factors that can reprogram somatic
cell nuclei.30
Stem cell biology can be useful in vibrant fields of biomedical research that
includes drug development, toxicity testing, developmental biology, disease
modelling, tissue engineering etc.31 Now several new developments can be
seen in the field of stem cell research that significantly change the panorama.
Stem cell Research and Treatment of Major Diseases
Human Embryonic Stem Cell (HESC) research offers much hope for
alleviating the human suffering brought on by the ravages of disease and
injury.32 The main goal of Human Embryonic Stem (HESC) research is to
identify the mechanisms that govern cell differentiation and to turn Human
Embryonic Stem (HESCs) into specific cell types that can be used for treating
enervating and life-threatening diseases and injuries. The reason is that the
use of stem cells in regenerative medicine holds promise for improving
human health by restoring the function of cells and organs damaged due to
degeneration or injury. Scientists hope to be able to use stem cells to find
treatments for spinal cord injuries, cancer, diabetes and diseases such as
Alzheimer's and Parkinson's.33 Diseases such as cancer are thought to result
from abnormal cell proliferation and differentiation. Bone Marrow Transplant
(BMT) is used for cancers such as leukaemia, where it allows the marrow to
receive fresh and healthy cells, which then multiply and give rise to the
30
Ibid.
31
Supra note 28.
32
Andrew Siegel, ‘Ethics of Stem Cell Research’, The Stanford Encyclopedia of Philosophy,
retrieved on 2014-04-30 from http://plato.stanford.edu/archives/spr2013/entries/stem-cells/
33
Terry Baynes, ‘U.S. High Court Won't Review Federal Embryonic Stem Cell Funds’,
retrieved on 2014-05-05 from http://www.reuters.com/article/2013/01/07/us-usa-court-
stemcell-idUSBRE9060IQ20130107
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different types of blood that are necessary for life.34 This process can be
termed as a life-saving process for those whose marrow has been damaged by
chemotherapy and radiation. The usage of stem cells in treatment is quite
small in the kind of diseases upsetting humans nowadays. Stem cell research
into heart disease has also shown wonderful results and the goal seems to
eventually replace all of the damaged heart tissue with healthy cells as some
of the initial research in laboratory animals such as mice has suggested that
when adult stem cells derived from non-heart tissues are transplanted into a
damaged heart, the cells grow healthy heart muscle cells.35 Stem cell therapy
has been proposed as a means to replace and regenerate functional cardiac
muscle, rather than just prevent further damage following a heart attack.36
Stem cell transplantation in spinal cord injury patients has shown encouraging
results. It is reported that transplanting autologous enriched mononuclear
bone marrow stem cells (CD34) in Spinal Cord Injury (SCI) patients brought
good results of clinical safety through open surgery transplantation.37
People who are diagnosed with type I diabetes have abnormal insulin
regulation and the pancreatic cells that would normally produce insulin are
destroyed by the sufferer's own immune system.38 Research is now suggesting
that it may be feasible to control stem cell differentiation so that stem cells
34
Ian Murnaghan, ‘Major Diseases and Stem Cells’, retrieved on 2014-05-05 from
http://www.explorestemcells.co.uk/majordiseasesstemcells.html
35
Charles A. Goldthwaite, ‘Mending a Broken Heart: Stem Cells and Cardiac Repair’,
retrieved on 2017-07-06 from
https://stemcells.nih.gov/info/Regenerative_Medicine/2006Chapter6.htm
36
Philip H. Schwartz and Peter J. Bryant, ‘Therapeutic Uses of Stem Cells’, in Kristen R.
Monroe, Fundamentals of the Stem Cell Debate: The Scientific, Religious, Ethical and
political Issues, 37-59 at 45(2008).
37
Syed Ameer Basha Paspala, ‘Neural Stem Cells & Supporting Cells - The New Therapeutic
Tools For
The Treatment of Spinal Cord Injury’, Indian J Med Res 130, October 2009, 379-391, at 385.
38
In-Depth Report on Diabetes- Type 1, retrieved on 2017-07-06 from
http://www.nytimes.com/health/guides/disease/type-1-diabetes/print.html
Legal Messenger
are guided in the laboratory to generate specialised cells capable of producing

insulin.39 Beta-cell replacement is a potential therapy that might reverse rather
than simply palliate both -type 1, type 2 diabetes and also that pancreas
transplantation is effective, improving quality if not duration of life in people
with type-1 diabetes.40
A recent study with embryonic stem cells found that transplanted cells were
able to function and release dopamine, relieving the symptoms of Parkinson's
disease.41 The Dean of Harward University Faculty of medicine claimed that
stem cell therapies have potential to do for chronic diseases what antibiotics
did for infectious diseases’ and hopes that current research will lead to
‘Penicillin for Parkinsons’.42 Regarding Human stem cell therapy, scientists
are developing a number of strategies for producing dopamine neurons from
human stem cells in the laboratory for transplantation into humans with
Parkinson's disease and the successful generation of an unlimited supply of
dopamine neurons could make neuro-transplantation widely available for
Parkinson's patients at some point in the future. 43 As the incidence of many
serious diseases increases, the pressure similarly increases to find cures and
treatment methods. Stem cells offer the potential to dramatically reduce
human suffering from disease but as of yet, still the research is in the primitive
stages of providing safe and successful treatment.
39
Mehboob A Hussain, Neil D Theise, ‘Stem-Cell Therapy For Diabetes Mellitus’, retrieved
on 2017-07-06 from http://w.neiltheise.com/pdfs/LancetDM.pdf
40
Juris J. Meier, ‘The Potential for Stem Cell Therapy in Diabetes’, retrieved on 2014-05-04
from http://bhushanlab.med.ucla.edu/downloads/publication7.pdf
41
Text retrieved on 2014-05-05 from
http://stemcells.nih.gov/staticresources/info/basics/StemCellBasics.pdf
42
Russell Korobkin, Stem Cell Century: Law and Policy for a Breakthrough Technology,
3(2007)
43
Lund University, ‘Breakthrough in production of dopamine neurons for Parkinson's
disease’, retrieved on 2017-07-10 from
https://www.sciencedaily.com/releases/2016/10/161028085830.htm
Legal Messenger
Generation of biomedical waste
The overall development in healthcare is precisely made for the prevention

and protection of community health but along with that it has resulted in per
capita per patient generation of medical wastes which includes hypodermic
needles, scalpels, blades, surgical cottons, gloves, bandages, clothes,
discarded medicine, body fluids, human tissues and organs, chemicals etc.
Other wastes generated in healthcare units also include highly dangerous
radioactive wastes, mercury and led containing instruments, PVC plastics etc.
which need a greater care and notice and must be monitored thoroughly.
World Health Organization states that 85% of hospital wastes are actually
non-hazardous, whereas 10% are infectious and 5% are non-infectious but
they are included in hazardous wastes. About 15% to 35% of Hospital waste
is regulated as infectious waste.44
These wastes now threaten the public if not properly managed can cause
dangerous infection and posses a potential threat to the surrounding
environment, persons handling it and to the public. Health and environmental
effects including flora and fauna, vagueness regarding regulations and
negative perception by waste handlers are some important concerns in health
care waste management in a country.
The main sources of biomedical waste are Govt. hospitals/private

hospitals/nursing homes/ dispensaries, Primary health centers, Medical
colleges and research centers/ paramedic services, Veterinary colleges and
animal research centers, Blood banks/mortuaries/autopsy centers,
Biotechnology institutions, various production units. However, the minor
44
Mathur P, Patan S, Shobhawat S. Need of Biomedical Waste Management System in
Hospitals - An Emerging issue - A Review. Curr World Environ 2012;7(1):117-124,
retrieved from http://www.cwejournal.org/?p=1969 on 02-06-18
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sources include various medical and dental clinics, slaughter houses, Blood
donation camps and vaccination centers, acupuncturists and cosmetic
piercing, Funeral services and last but not the least, institutions for disabled
persons.
Importance of biomedical waste management
The biomedical waste pose grave potential threats to everyone including

environment, therefore, it is pertinent to manage and regulate its collection,
storage, transportation, treatment and final disposal as it will help to prevent
transmission and spreading of pathogens and diseases and prevent
environmental degradation. It will also prevent injury to people in health care
services and workers who handle sharp Bio medical waste. The general
exposure to the harmful effects of chemical biomedical waste will also be
prevented.45
The key to minimization and effective management of biomedical waste is

segregation and identification of the waste.46 The most appropriate way of
identifying the categories of health-care waste is by sorting the waste into
colour-coded plastic bags or containers.47 Therefore, it must be segregated
from other types of waste at the point where it is created. It must be kept from
direct contact with humans, animals, insects, and environmental elements,
such as rain and wind. Limited access should be granted and to people who
are trained and authorized to handle this waste.
45
Ibid.
46
Anurag Tiwari, ‘Biomedical Waste Management Practices in India-A Review’ , retrieved
from
https://www.researchgate.net/publication/262523529_Biomedical_Waste_Management_Pr
actices_in_India-A_Review on 22-06-18
47
Text retrieved from
http://www.who.int/water_sanitation_health/medicalwaste/061to076.pdf on 20-06-18
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Biomedical waste management rules
This issue of improper Hospital Waste Management in India was first

highlighted in a writ petition in the Hon’ble Supreme Court; and
subsequently, pursuant to the directives of the court, the Ministry of
Environment and Forests, Govt. of India notified the Bio-Medical Waste
(Management and Handlings) Rules on 27th July 1998; under the provisions
of Environment Act 1986.48 In accordance with these rules, it is the duty of
every “occupier” i.e. a person who has the control over the institution or its
premises, to take all steps to ensure that waste generated is handled without
any adverse effect to human health and environment. It consists of six
schedules. These rules classify it into 10 categories. The rules have been
framed to regulate the disposal of various categories of Bio-Medical Waste
as envisaged therein; so as to ensure the safety of the staff, patients, public
and the environment. These rules are now modified in 2011.
Conclusion
Biomedical waste in regenerative medicine and like fields should be safely

and efficiently identified, segregated, stored, transported and disposed after
appropriate treatment. With a growing population, biomedical waste is also
growing in quantity in our country. Management of this waste is a rising
concern in India as there is a spike in regenerative technologies as well.
Following regulations and scientifically managing biomedical waste is in the
best interest of the public as well as the environment.
48
Biomedical Waste Management , retrieved from
http://www.researchjournal.co.in/upload/assignments/5_38-46.pdf on 22-06-18
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JUDICIAL REVIEW IN INDIA, NEW ZEALAND AND

CANADA
Saharsh Dubey 1
Dechen Khonglah
Introduction
In this era, Democracy is the most suitable form of the Government in the
world. In this form of Government, people can raise their voice and they can
demand their needs from the government. There is also a mechanism of check
and balance on the government. In democracy, the distribution of power is
divided and single institution does not hold all the power. There is a separation
of power among the Legislative, Executive and the Judiciary. There is a theory
of check and balance. All these Institute check the work of each other. Among
these three, The Judiciary plays a very important role by upholding the
Supremacy of the Constitution. It may happen that Legislative enacted any
arbitrary law which is not in consonance according to the Constitution and the
Executive executed the same. Now, it is the work of the Judiciary to check the
constitutionality of that particular law. In many countries, Judiciary has power to
strike down that type of law. The Constitution of many countries provide this
authority to the judiciary.
The judiciary works according to the Constitution. It protects the very soul of the
Constitution and see that everything is working according to law or not. The
Constitution has the assent of common people. It is the institution who interprets
the statutes. It has authority to see that the government is working according to
Constitution or not. It protect the rights that are guaranteed to the citizen by the
Constitution. The people has the utmost respect to the Court System. However,
1
Students, National Law University and Judicial Academy, Assam.
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all the countries do not have such provisions. This type of system is mainly found
in Common law countries. It is not found in civil law or socialist legal system.
Judicial system plays a great role in India, New Zealand and in Canada. In India,
Judges are given power to declare any Act passed by the Parliament invalid if its
provisions are against the nature of Constitution. This research project show how
judicial review is done by the Highest Court in Canada, India and New Zealand.
Judicial review in India
Judicial review is the power of judiciary to check the constitutional

legality of the laws and rules framed by the legislative authorities and the
executive orders of both the State and the Central government. And if any of the
rules or orders are found to be violative of the constitution, they can be declared
as unlawful or illicit and the same cannot be enforced by the government.
Justice Syed Shah Mohammed Quadri has classified the judicial review in
following three categories2:
 Judicial review of constitutional amendments.

 Judicial review of legislations of the parliament and State legislatures and
Subordinate legislatures.
 Judicial review of the administrative action of the Union and State and
authorities under the state.
The importance of judicial review is:
 To maintain the federal nature of the constitution by maintaining the balance

between states and Centre.
2
Justice Syed Shah Mohamed Quadri, ”Judicial Review of Administrative Action”, 2001, 6
SCC (J), p.3.
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 To sustain the principle of sovereignty of the constitution.

 To safeguard the Fundamental Rights of the citizens.
In various cases the Supreme Court has pointed out the importance of judicial
review in the country. Few observations of the judges made in this context are:
“In India it is the constitution that is supreme and that a statute law to be
valid, must be in conformity with the constitutional requirements and it is for the
judiciary to decide whether any enactment is constitutional or not.”3
“Our constitution contains express provisions for judicial review of

legislations as to its conformity with the constitution. This is especially true as
regards the Fundamental Rights, to which the court has been assigned the role of
sentinel on the qui vive.”4
The word Judicial Review has not been used anywhere in the Constitution but
the provisions of different articles in the constitution bestows upon the Supreme
Court and the High courts with the power of Judicial review. Few of the
provisions are:
 Article 13 states that any law which is against the Fundamental Rights of the
citizens will be declared as unlawful or illegit.
 Article 32 declares the right to appeal to the Supreme Court for enforcement
of Fundamental Rights and gives power to the Supreme Court to issue writs
in order to protect the fundamental rights of the citizens.
 Article 131 deals with the original jurisdiction of Supreme Court in Centre-
State matters and inter-state matters.
3
Chief Justice Kania in A.K. Gopalan v. State of Madras (1950)
4
Chief Justice Patanjali Shastri in State of Madras v. V.G. Row (1952)
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 Article 132 provides for appellate jurisdiction of Supreme Court in

Constitutional Cases.
 Article 143 authorizes the President to solicit the opinion of Supreme Court
on any questions of law or legal matters.
 Article 226 gives the High Court the right to enforce writs for protection of
Fundamental Rights.
Thus the main realm of judicial review is that the constitutional validity of the
executive order can be questioned on the grounds that:
 It is against the fundamental rights of the citizens.

 It is outside the ambit or the powers of the authority which has framed it.
 It is abhorrent to the provisions of the constitution.
But, there always remain tussle between the Government and the Judiciary on
this matter. The government tries every act made by the Parliament as Supreme
but the Supreme Court has established that it has power to review all the Acts
made by the Parliament and all those must be in consonance with the
Constitution.
Stances of judicial review in India
After the Independence of India, various states government passed the land
reforms bill but many of this bill were challenged in the Court and the Court
declared this bill as unconstitutional.
To continue with the policy of land reforms, The Parliament passed the First
Constitutional (Amendment) Act, 1951 which inserted the Ninth Schedule in the
Constitution. Article 31-B was also inserted in the Constitution. Article 31-B
ensured that any law in the Ninth Schedule could not be challenged in Courts and
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government can keep its programme of land reforms. In other words law under
the Ninth Schedule are beyond the purview of judicial review even though they
violate the Fundamental right of the Citizens.5 This Article is also retrospective
in nature.
With the passing of time, the Supreme Court also found that radical agrarian
policy was needed to curb down the menace of the poverty. However, the
legislature has started to misuse the Ninth Schedule. The Government has started
to keep the law related to the reservation, private colleges’ bill and many others
like that.
In I.R.Coelho v. State of Tamil Nadu,6 the 9 judge constitutional bench of the

Supreme Court held that any law placed under Ninth Schedule after April 23,
1973 are subject to scrutiny of Court’s if they violated fundamental rights and
thus put the check on the misuse of the provision of the Ninth Schedule by the
legislative.7 Here, April 23, 1973 is the date of pronouncement of judgment by
the Supreme Court in the famous case of. Keshavanand Bharti v. State of Kerala.
In the famous case of Supreme Court Advocates-on-Record Association and

Others v. Union of India, the Supreme Court struck down the 99th Constitutional
(Amendment) Act, 2015 popularly known as the National Judicial Appointment
Commission Act (NJAC), passed by the both house of Parliament and also by the
16 State Assemblies. Article 124-A was inserted in the Constitution of India.
Under this Act, the appointment of judges of the Supreme Court and High Courts
were to be done by the Politician and lawyers and the Collegium system was to
5
Vijay Pal Singh, Legal Service India- Ninth Schedule (Jun 15,2018,10:40 AM) ,
http://www.legalserviceindia.com/articles/nineth.html
6
AIR 2007 SC 861
7
Vijay Pal Singh, Legal Service India- Ninth Schedule(Jun 15,2018,10:40 AM) ,
http://www.legalserviceindia.com/articles/nineth.html
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be absolved. But the Supreme Court said the “the expectation from the judiciary,
is to safeguard the rights of the citizens of this country, can only be ensured, by
keeping it absolutely insulated and independent from the other organ of the
governance”.8
Judicial Review in Canada
The Canadian constitution before 1982 was marked by legislative

supremacy. Sections 91 and 92 of the Constitution Act, 1867 specifies that the
Parliament and the Legislatures are the top authorities in their own domain of
jurisdiction. Constitutionally, the sections 91 to 101 of the 1867 Act could be
used by the parliament to change the nature of Canadian Courts in such a way so
as to decrease the power and the independence of judiciary. In order to settle the
jurisdictional disputes which are intrinsic to the nature of federalism, judicial
review was accepted in Canada. The continuation of Judicial Review after the
1867 Act demonstrates the approval of judicial review as the fitting mode of
settling the disputes in jurisdictions. Further the sections 52(1) and 24(1) of the
Constitution Act, 1982 which tells that the “Constitution of Canada is the
supreme law of Canada” and courts are the institutions for enforcing the Charter.
The combination of both the sections express the institution of Judicial Review.
The power of Judicial Review is firmly with the Superior Courts with respect to
the decisions of the various administrative bodies and authorities.
The courts have the full discretion to hear the cases for judicial review or not. It
totally depends on their reasoning to hear the case for judicial review. The issue
should be of a public nature for a court to initiate the proceedings of judicial
8
Krishnadas Rajagopal, SC Bench strikes down NJAC Act as ‘unconstitutional and void, (19 Jun,
2018, 1:06 PM), http://www.thehindu.com/news/national/supreme-court-verdict-on-njac-
and-collegium-system/article7769266.ece
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review. The court checks whether the application was submitted during the valid
course of time and also ensures that some other methods of reconciliation were
taken or not. It has to be satisfied that the matter affects the public at large and
the court has jurisdiction to hear it. The scope of public matters is quite wide and
sometimes even semi personal or personal matters have also been heard for
judicial review. If the administrative proceedings are still under progress then the
initiation of judicial review does not mean it will halt the proceedings or stop
them in the middle; in order to stop them the constitution must also apply for stay
in the proceedings.
For a judicial review to occur the courts must be satisfied that there has been a
fallacy in the jurisdiction or there has been some error in the manner in which the
decision is made. Whenever there is a fallacy in jurisdiction, the decision is
declared as ultra vires as it created an error in law. The court also checks the
rationality of the decisions by not reviewing the decision completely, rather it
checks whether the resolutions falls within the scope of such outcomes which are
according to the law and are just and fair.
Different remedies that are available to the courts when they are hearing the
proceedings of judicial review are different prerogative writs. The writs are:
Certiorari where an administrative resolution brought by the tribunals could be
send back to them when they have made some fallacy in their jurisdiction. It is
applied on the last and the final decision. Mandamus is a writ which orders the
administrative authority to follow their statutory duties. Prohibition which
prevents the tribunals to decide over the matter which are beyond their ambit of
jurisdiction. Habeas corpus prevents the unlawful detention of the citizens by the
state. Lastly, Quo Warranto which questions or summons the authority which
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makes the decision. This writ is rarely used as courts more often than not finds
some other alternative remedies.
Judicial review and its prerogative remedies are totally discretionary in nature.
The court decides whether it has to hear cases related to judicial review or not
and whether it has to give remedy or not is totally on their discretion. Different
grounds such as mootness, where the court decides that the remedy being asked
for will eventually not change the final decision and there is no fruitful result
even if the remedy is allowed, then the court will refuse to grant relief. Further
the court also checks the delay time in bringing the application to the court, if the
time is unreasonable it can refuse relief. Further the grounds where there are
alternative remedies available, the court can refuse to grant remedy. In the case
of Harelkin v University of Regina, the Supreme Court of Canada determined
that precedence should be given to the statutory remedies.9 In addition to them,
the conduct of the applicant is also checked sometimes by the court where if the
conduct is as such deceitful, or fraudulent then the court can refuse to give relief.
The ruling legislation that will be used will be decided by the jurisdiction of the
judicial review application. According to the section 28 of the Federal Courts
Act, the matters relating to judicial review by federal bodies and tribunals are
decided by the Federal Courts. Also, according to section 18.1(2) the time limit
for an appeal for judicial review in federal courts is maximum 30 days.10 The
British Columbia’s Judicial Review Procedure Act and Administrative Tribunals
Act hears matters of superior courts judicial review of administrative tribunals
decision. The Act contains only 21 sections but allows 60 day time limit for
hearing appeals against judicial review. One of the important section of this Act
9
D.P. Jones and A.S. de Villars, Principles of Administrative Law (Toronto: Carswell Co.,
1985), 192-193
10
ibid
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i.e. Section 1 governs that all the matters related to judicial review must be heard
in Supreme Court of British Columbia. Now, at last according to the Ontario
Judicial Review Procedure Act the standard of review was abolished by the
Supreme Court declaring it unreasonable as it unnecessarily gave regard to the
administrative decision maker body.
Judicial review in New Zealand
Judicial Review in New Zealand is the power exercised by the judge of

High Court to review a decision, a proposed decision, and refusal to exercise a
power of decision. It is a power to determine whether the choice or activity is
invalid. It is alluded to as supervisory purview indicating the role of courts to
administer the activity of control by the individuals who hold it to guarantee that
it has been legally worked out. The courts have had the jurisdiction to check the
powers of public bodies or public authorities under the ambit of ancient remedy
known as “writs”. But over the time these laws or rules became quite complex.
In order to simplify these procedures, the parliament in New Zealand passed the
Judicature Amendment Act 1972. That Act provides a valuable framework for
judicial review in this country, and it is attached as Appendix D.11 The exercise
of non-statutory public powers remains reviewable at common law. The practical
position is that any exercises of power are reviewable by the courts that:
…. in substance have important public consequences however their origins and

the persons or bodies exercising them might be characterized ….12
There are many types of decision that can be reviewed by the courts. Starting
from the very beginning, the provisions of an Act of Parliament which provides
11
See Mercury Energy Ltd v ECNZ [1994] 2 NZLR 385, at 388 (PC)
12
2 Royal Australasian College of Surgeons v Phipps [1999] 2 NZLR 1 11 (CA).
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several discretional powers to various public serving bodies like the powers given
to the council of ministers or the executives of various ministries, where a person
who is adversely affected by such powers, where the officials use their powers in
a wrongful manner or they use it by misusing its provision or they use it in an
unfair manner; then the court can use the provision of judicial review in such
circumstances. Going by this, Judicial Review basically makes sure that the law
is in place when any such power that affects the people at large is authorized by
some authority. Thus the motive of judicial review is basically to reveal the
clarity of the postulates to govern the public administration by the executive
authorities and to protect and safeguard the interest of the public against any
illegitimate or illicit administrative action.
According to the Laws of New Zealand, Judicial review is a judicial innovation

which was made to make sure that decision taken by the executive authorities or
any public service body is according to law, even if the action sometimes not
involve a practicable law but still it needs to be according to the law. The main
existence of judicial review is to make sure the supremacy of law under any
circumstances and to ensure that any action which is against the law is not
permitted. It upholds the fundamental value and integrity of law under any
situation and checks on the action of the executive authorities or any public
serving body against their discretionary powers. The Courts have evolved their
jurisdiction accordingly to protect the interest of the individuals. Their clear
objective is to inculcate the fundamental laws that accounts for the rule of law
and to ensure justice by accounting those who exercise power over the general
public for the modus operandi of their work. The Court of Appeal has observed
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that New Zealand administrative law is ’significantly indigenous’, and that

judicial review powers here have a broader scope than those under English Law.13
Judicial Review is different from an appeal. An appeal subsist when a statute

allocates that a resolution or a decision can be appealed to a court. In an appeal a
judge will carefully observe all the positives or the plus points of the previous
resolution and point out the short comings as well. There is usually no regard or
esteem corresponding to the resolution being appealed from. Judicial review is
more concerned about the procedures or the ways in which a resolution is made
rather than the worth or merits of the ultimate decision. As long as the proper
procedure is followed and everything is done according to the law and decisions
or the resolutions are made according to provisions of the rule the court would
not intervene. However, sometimes it becomes difficult to distinguish the
resolution making process and the merits or the worth of the decisions made.
Most of the times the contestant’s focus is mainly on the final decision i.e., its
merits as in the case of appeal.
In the recent scenario more weightage has been given and interest has been shown
to check the importance a decision maker has given to any specific facts. This is
mainly when the rights secured by The New Zealand Bill of Rights Acts 1990
and Human Rights Act 1993 has been affected. A judge has an extensive range
of discretionary powers dealing with the provision of judicial review some of
which are given in the Judicature Amendment Act. At the very beginning the
judge can also make a provisional order in order to maintain the status quo until
the final review procedure is completed and these are also listed in the Judicature
Amendment Act.
13
Philip Joseph and Jason McHerron, Constitutional and Administrative Law in New Zealand
(4rth ed. 2014).
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In judicial review proceedings the documents are of a very significant role and
they hold great importance in declaring the final judgement. The court checks all
the documents which are generated throughout the proceedings and all the proves
put forward by both the parties are carefully scrutinized. These documents may
include decision papers, correspondence reports, Cabinet papers/minutes,
memoranda between officials and Ministers/advisers and decision making
authorities. The court also observes the sworn affidavit evidence of the
authorities and all others who indulged in the process.
Finally a judge may-
 Frame revelations about the manner in which the final decision was taken or
the judgement declared by either telling about the few tasks which were not
done or some matters taken into consideration were not relevant.
 Declare the decision as illicit and may restore the previous position that was
prevalent before the decision.
 May authorize the person who made the resolution or took the decision to
reevaluate the matters and taken certain facts into considerations which are
important for the current case.
Relief or remedy is totally discretional and is totally on the judge to decide

it. A person can make out his/her case but cannot force the court to take
any steps further. The most common relief is an order demanding to
consider the facts again setting aside the previous facts.
Comparison of the judicial review mechanism of the aforementioned nations
1. Statute
INDIA- Judicial review is not anywhere used in the constitution

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CANADA- The act of 1867 specifies judicial review. Article 52(1) and 24(1) of
the constitutional act 1982 reasserts judicial review
NEW ZEALAND- The Judicature Amendment Act 1972. That Act provides a
valuable framework for judicial review in this country, and it is attached as
Appendix D.
2. Ambit
INDIA- It must be in conformity with the constitutional requirements and it is

for the judiciary to decide whether any enactment is constitutional or not.
CANADA- The issue should be of a public nature for a court to initiate the
proceedings of judicial review. It has to be satisfied that the matter affects the
public at large and the court has jurisdiction to hear it. The scope of public matters
is quite wide and sometimes even semi personal or personal matters have also
been heard for judicial review.
NEW ZEALAND- The powers given to the council of ministers or the executives
of various ministries where a person who is adversely affected by such powers
where the officials use their powers in a wrongful manner or they use it by
misusing its provision or they use it in an unfair manner.
3. Realm
INDIA- Thus the main realm of judicial review is that the constitutional validity
of the executive order can be questioned on the grounds that-It is against the
fundamental rights of the citizens. It is outside the ambit or the powers of the
authority which has framed it or It is abhorrent to the provisions of the
constitution.
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CANADA- For a judicial review to occur the courts must be satisfied that there
has been a fallacy in the jurisdiction or there has been some error in the manner
in which the decision is made. Whenever there is a fallacy in jurisdiction the
decision is declared as ultra vires as it created an error in law.
NEW ZEALAND-. The main existence of judicial review is to make sure the
supremacy of law under any circumstances and to ensure that any action which
is against the law is not permitted. It upholds the fundamental value and integrity
of law under any situation and checks on the action of the executive authorities
or any public serving body against their discretionary powers.
4. Methods
INDIA-The Supreme Court has power to review all the Acts made by the
Parliament and all those must be in consonance with the Constitution.
CANADA- The court also checks the rationality of the decisions by not
reviewing the decision completely rather it checks whether the resolutions falls
within the scope of such outcomes which are according to the law and are just
and fair. Different remedies that are available to the courts when they are hearing
the proceedings of judicial review are different prerogative writs
NEW ZEALAND-It is the power exercised by the judge of High Court to review
a decision, a proposed decision, and refusal to exercise a power of decision. It is
a power to determine whether the choice or activity is invalid.
Conclusion
In this preliminary analysis we focus on broad descriptive accounts of the

extent of variation in judicial review across the three countries. Moreover, we
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specifically were interested in if the variation breaks down along the lines
supporting our hypotheses that were derived as per
The dissertation of the review mechanism of India New Zealand and

Canada which are an absolutely diverse nations be it geographically,
economically, socially, anatomically and constitutionally. Yet they share a nation
that any fallacy in the impartation of law should be abolished and integrity of the
nation must sustain through far and wide.
As we have clearly seen the reviewable mechanism of 3 most prominent nations

of the world we can thus evidently arrive at a conclusion where we can say that
judicial review is an integral part of the contrivance of the judicial apparatuses of
the nations of the world. The early evidence also indicates that the extent to which
there is a difference between these three nations in utilizing judicial review is
mitigated by other institutional factors. Our path forward is to begin to develop a
more fully specified model of judicial review that will incorporate all the
tentative as well as the immutable aspects of the judicial review in these diverse
nations.
The expansion of judicial review around the world and the resulting
judicialization of politics across many countries is arguably one of the most
important areas of research for judicial scholars. Constitutional scholars have
recognized this for years but political scientist have been slow to turn their
attention to the phenomenon. Even more disappointing has been the lack of
multi-country studies and cross-national data analyses in this area of research.
Yet after an abyssal inquisition on this area of judicial study one can easily arrive
at a conclusion that judicial review is an integral part of the constitutional
framework of the world and any stratagem in this system will annihilate the entire
fabrication of law, justice, equity and peace of the nations of the world.
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PRIVACY A FUNDAMENTAL RIGHT: A REVIEW OF

THE PAST AND COMING FUTURE
Ananya Jain 1
Sameera Singal
Introduction
The definition of privacy is nowhere elaborately defined. People have

different perspective about privacy. Some perceive a narrow perspective and
relate it to the right to be let alone whereas some take a broader perspective
to include data protection and privacy in it.
Legal scholar Arthur Miller says that privacy is “difficult to define because it
is exasperatingly vague and evanescent.” Edwin Lawrence Godkin, a famous
American journalist from the late 19th century stated that, "nothing is better
worthy of legal protection than private life, or, in other words, the right of
every man to keep his affairs to himself, and to decide for himself to what
extent they shall be the subject of public observation and discussion."2
In simple words privacy refers to the right to be left alone, or freedom from
interference or intrusion. Right to Privacy means one’s right to keep a domain
around us, which includes all those things that are part of us, such as our body,
home, property, thoughts, feelings, secrets and identity. The Right to Privacy
gives us the ability to choose which part in this domain can be accessed by
others, and to control the extent, manner and timing of the use of those parts
we choose to disclose.
Information privacy is the right to have some control over how your personal
information is collected and used. Right to Privacy in India has developed
into a series in which the first one covers monitoring, the second one covers
1
Students, Symbiosis Law School, PuneSymbiosis International University
2
Adv. Kaustav Ghosh, Right to privacy, September 2017,
https://www.vidhiaagaz.com/wpcontent/uploads/2017/09/Paper-2-1.pdf
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the protection of an individual’s fundamental choice from social ethics and

lastly which deals with the concern of biometrics and bodily privacy which is
restricted in India.
What exactly is data protection and privacy? It basically means protection of
data on the digital platform. Going by the definition of personal data laid
down by the European Union’s data protection guidelines, “information
concerning an identified and identifiable natural person” covers the scope of
personal data. This information can be relating to anyone be it an individual,
enterprise or even a government.
When it comes to the protection of personal data and information, there are
many concerns regarding its privacy and safety. A person’s personal
information may include anything, from his personal habits and interests to
his financial or medical records. Protecting any such kind of information has
become very important in today’s world. The advancement in technology
makes it easily accessible to control this data collection or even disclose any
kind of personal information. It has caused various problems with respect to
privacy rights and data protection.
It is important to protect the privacy of an individual because a person’s
privacy is something what belongs to him. One must respect a person’s
privacy and not disclose any kind of information related to him without his
consent. It would be violative of his fundamental Right to Privacy3.
It is not an absolute duty to protect the privacy of any individual. But in cases
like a police trying to spy on a criminal and keeping track of his whereabouts
does not include the violation of the criminal’s privacy, as it is done to ensure
peace and harmony within the society.
It is no surprise that in a society as diverse as India the judicial system plays
a large role. These institutions in effect provide the mechanisms for sorting
3
Privacy, Wikipedia, https://en.wikipedia.org/wiki/Privacy
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things through competing claims and conflicting ideologies of a uniquely

complicated nation. In today’s time the judicial system regularly solves cases
that literally surpasses anything that one could have imagined when the
foundation of Indian judicial system was set in place. It is not surprising that
the legal system and the law have provided the framework for the adaptation
of many aspects of life to modernization, political evolution and cultural
change. But nothing challenged the courts capability for resolving problems
and making rules more than the legal issues raised by technological
revolution. The questions that technology puts in front of us at this moment
are well beyond our understanding.
Under the Information Technology Act, 2000, Section 72A4 deals with the
penalty for disclosing any personal information without the consent of the
person, or with the intent to cause or knowing it is likely to cause wrongful
loss. When such information is disclosed in an unauthorized manner to a third
party then the person would be liable with imprisonment or fine, or both. This
section only deals with privacy and the breach of confidentiality.
In order to protect the privacy of an individual on the Internet, Section 695
and 756 should be taken into consideration. When any agency of the
Government is ordered to cut off any information which is stored online he
would be sentenced to jail for a period of up to 7 years. While, Section 69 and
Section 75 deals with the privacy of individuals and how the Government is
in control in relation to the individual’s privacy.
From a comprehension of the Indian lawful situations, it can be inferred that

there exists no Indian enactment that covers the security of privileges of
4
Punishment for disclosure of information in breach of lawful contract
5
Power to issue directions for interception or monitoring or decryption of any information
through any computer resource
6
Act to apply for offence or contravention committed outside India
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protection, which can be translated in the domain of exchanges amongst

people and companies or on the Internet between two people.
For India to work towards a secure environment it must face the obstacle of
the threat of privacy over the Internet. India being a developing country must
take full advantage of the benefits and opportunities coming its way that
online businesses presents to the developing nations.
Evolution of privacy
The right to piracy has gone a long way and gone through many changes due
to the changing environment and circumstances. It has finally reached the
status that it needed to have in the current society i.e. a fundamental right. In
recent scenario, the Right to Privacy needs to be given the due recognition
and importance as with the advancement in technology, there is a greater
threat to the personal information of people which is stored online with
various organizations. Now that it has become a fundamental right, it will be
able to give due protection to the rights of the people.
The Right to Privacy has been well traced back in the ancient Hindu texts. If
one looks at the Hitapadesh it says that some matters like worship, sex and
family matters should not be disclosed to anyone.
The very first time Right to Privacy was discussed in India was in a debate
by the Constitutional assembly, K.S. Karinmuddin moved an amendment by
looking at the US Constitution but due to some reasons, the Right to Privacy
was not included in the Constitution7.
In M.P. Sharma v Satish Chandra8, the issue was relating to power of search
and seizure of the police, the Supreme Court held that Right to Privacy was
7
Arjun Uppal, Right to Privacy in India, Indian Law Journal,
http://www.Indialawjournal.org/archives/volume7/issue-2/article3.html
8
M.P. Sharma v Satish Chandra, AIR 300, 1954 SCR 1077
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not a fundamental right under the Constitution as it was alien to it and the
Constitution drafters did not give any attention to it.
K.R. Suraj v The Excise Inspector Parappananqadi9, and in State Rep. by

Inspector of Police v N.M.T. Joy Immaculate10 reinstated the fact that Right
to Privacy can not cover the issue of power of search seizure.11
After this, in Kharak Singh v State of Uttar Pradesh12, in the Supreme Court
decided regarding surveillance under Regulation 236 of the U.P. Police and
whether it infringes the fundamental right of people and whether privacy
comes under the fundamental right. The court held that the Right to Privacy
is not a fundamental right as it nowhere mentioned in the Constitution and
hence the attempt to ascertain the movements of an individual does not
infringe the fundamental right of the people.
In the next case of Govind v. State of Madhya Pradesh13, there was in length
discussion on the right to privacy. The issue was similar to that of Kharak
Singh but the court had a little different view. The court upheld the validity
of Madhya Pradesh Police Regulations, 855 and 856 but did not declare
privacy as a fundamental right but said that privacy has to go through a case
by case development, and one case and one situation is not enough to make a
strong decision regarding this matter. They considered privacy to be a foreign
concept and thought it will take time to blend into the Indian culture.
This case gave some recognition to the right to privacy. It looked to interpret
the idea of the makers of the Constitution and looked to broaden the scope of
article 21 in order to incorporate Right to Privacy in it.
9
K.R. Suraj v The Excise Inspector Parappananqadi, Appeal (crl.) 1054 2000
10
State Rep. by Inspector of Police v N.M.T. Joy, Appeal (crl.) 575-576 of 2004
11
Right to Privacy The Indian Prospective, Law teacher, https://www.lawteacher.net/free-
law-essays/Constitutional-law/right-to-privacy-the-Indian-perspective-Constitutional-law-
essay.php#ftn21
12
Kharak Singh v State of UP, AIR 1295, 1964 SCR (1) 332
13
Govind v State of MP, AIR 1378, 1975 SCR (3) 946
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The case Maneka Gandhi v Union of India14, widened the scope of article 21
to personal liberty and security which actually helped Right to Privacy to fall
under its scope. Unni Krishnan v State of A.P.15 enumerated the twelve
meanings of right to life and Right to Privacy was one of them.
R.R. Gopal v State of Tamil Nadu16 was the first case which tried to study the
evolution and the scope of Right to Privacy in detail. The case followed the
lines of the Govind case and held that the Right to Privacy is implicit in the
right to life and liberty guaranteed by Article 21. The court concluded that
privacy no longer subsists as only matter of public record.
Peoples Union for Civil Liberties (PUCL) v Union of India17 was the case
relating to phone tapping and whether it infringes the Right to Privacy of the
people under Article 21. The honorable Supreme Court held that telephone
conversations are usually of intimate and confidential character and
telephone-conversation is a part of modern man’s life. Therefore, the court
held that telephone tapping infringed the right of the people under the article
unless it is backed by procedures established by law.
Therefore, the Right to Privacy has evolved with the change in time. In the
case of Selvi v State of Karnataka18,the Supreme Court held that an
involuntary subjection of a person to narcoanalysis, polygraph examination
and BEAP tests violates their right to privacy.
In People’s Union for Civil Liberties (PUCL) v Union of India,19 Supreme

Court upheld provisions of the Prevention of Terrorism Act, 2002 and said
that Right to Privacy is secondary to the security of the state and referring to
14
Maneka Gandhi v Union of India, AIR 597, 1978 SCR (2) 621
15
Unni Krishnan v State of A.P, AIR 2178, 1993 SCR (1) 594
16
R.R. Gopal v State of Tamil Nadu, AIR 264, 1994 SCC (6) 632
17
Peoples Union for Civil Liberties (PUCL) v Union of India, AIR 1997 SC 568
18
Selvi v State of Karnataka, Criminal Appeal No. 1267 of 2004
19
People’s Union for Civil Liberties (PUCL) v Union of India, (1997) 1 SCC 301
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Sharda v. Dharmpal20 which held that holding information which is

elementary to the security of the state can’t be challenged in the court.
After a due study of all the aforementioned cases, one can clearly conclude
that Right to Privacy is related to individual’s personal liberty, therefore, it is
recognized under the fundamental right of Right to Life. Thus, court
recognizing all these facts and situations and taking note of the evolution of
Right to Privacy in India the Supreme Court in the case of Puttaswamy v
Union of India21 relating to validity of Aadhaar, has declared Right to Privacy
as a fundamental right which all the citizens can enjoy under part III of the
Constitution of India.
Current laws relating to privacy
With the court’s decision in the Puttaswamy case being in the limelight these
days, there is a lot of discussions and debates going on in the country with
respect to the legislative structure of India in regard to Right to Privacy and
whether these laws are capable of tackling the current change brought by the
landmark judgment decided by a nine judges bench making Right to Privacy
a fundamental right.
The data protection laws in India are recently facing many problems due to
the absence of a strong legal framework. In recent times, there has been a
sudden boom in the number of cybercrimes in our country. Data is being
stolen and sold, which is happening across countries with having
geographical boundaries as no barrier. This problem can only be tackled by
enforcement of more stringent privacy laws which is supported by sound
cyber security and effective cyber forensics.
20
Sharda v Dharmpal, AIR 2003 SC 3450
21
Puttaswamy v Union of India, Writ Petition (Civil) no. 494 of 2012
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The Information Technology Act was introduced in the year 2000 which had
laws relating to cyber and IT laws in India but did not take into consideration
the need to have stringent data protection laws. Hence the act was amended
substantially in the year 2008 to bring in new data protection and privacy laws
in India. Data privacy in India is governed by loosely drafted provisions like
section 43A22 and 72A under the Information Technology Amended Act,
2008 (ITAA).
Section 43A, by the amendment added the word ‘body corporate’, in order to
widen the scope of the law by making company, a firm, sole proprietorship
or other association of individuals engaged in professional or commercial
activities liable in case there is a breach of data protection. This section
mainly means that the contacting party can set the standard of data protection
needed by them and the corporate will be held liable if there is any breach.
However, the Act fails to define “sensitive data” and states the same as
“personal information as may be prescribed by the Central government.”
Fortunately, three years later, IT Rules 2011 were issued by the World
Intellectual Property Organisation (WIPO) which gave a clear definition of
the term ‘Sensitive data’ and what all is included in it. But even this
legislature is poorly drafted and its applicability is very limited and hence,
has been in question.
Section 72A was also introduced by the 2008 amendment and it talks about
the punishment for the breach of data privacy i.e. offender is penalized for a
three-year imprisonment or a maximum fine of Rs. 5 lakhs. Section 72A has
increased the scope of section 72 as the earlier one only included the
information being obtained by the virtue of a “power granted under the IT
Act” but after the amendment it also includes the disclosure of personal
information of a person while providing services under a lawful contract and
22
Compensation for failure to protect data
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not only the information obtained by the virtue of a “power granted under the
IT”.23
A personal Data Protection Bill was introduced in the parliament but till date
is pending due to the paucity of information. The bill is a comprehensive
example with the aim of regulating the collection, processing and distribution
of personal data but the bill is only limited to the protection of personal data.
The bill applies to public as well as private organizations involved in data
functions. It proposes for the appointment of a ‘Data controller’ who will have
superintendence and adjudicatory jurisdiction over the subjects of the bill.
The bill is undoubtedly in the right direction but still has some drawbacks like
it does explain the duties and responsibility of the data controller in a proper
way and also fails to bring up the issues and problems relating to outsourced
data and the liabilities of companies outsourcing and hosting the data. The
Information Technology Amended Act, 2008 fails to enumerate the
organisations that can store data and what liability they have in case of a
breach and compensation payable to the customers.
The other legislature that talks about data protection is IT rules, 2011 which
were implemented by the Department of Electronics and Information
Technology. The IT Rule aim to monitor collection, storage and disclosure of
sensitive personal data or information. It lays the various compliances that
one has to take while collecting, storing and disclosing of personal data.
Rule 5(3) of the IT rules talks about consent. No information can be collected
or transferred without the consent of the person about whom the information
is. Rule 4 says that a body corporate collecting, storing or handling Protected
Data should compulsorily have policies governing the protection of data in
the organisation. Rules 5(8) and 8(1) talks about the standard of data security
23
Sonakshi Awasthi, Data privacy: Where is India when it comes to legislature?, The Indian
Express, August 24 2017, http://Indianexpress.com/article/India/what-is-India-data-privacy-
laws-4811291/
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recipients of the data have to maintain. The standards should be according

to the IS/ISO/IEC 27001, a set of guidelines prescribed by the Bureau of
Indian Standards, or any other security practice code and system approved
and notified by the Central Government. Rules 6 (1), (4) and Rule 7 lays down
the conditions in which the sensitive data can be transferred or given to a
third party. The recipients can share data only if (1) the permission of the
given person is taken, (2) disclosure is to a government agency, (3) when it is
an obligation under court orders.24
India needs a specific act enforced that only talks about data protection, which
will vehemently prohibit the collector of data to use the personal data
collected for any reason other than for the purpose for which it was collected
and should talk about of all the problems or issues and should enumerate their
solutions.
The Information Technology Act, 2000 was not formed for the purpose of
data protection or privacy, it’s primary aim was to articulate the themes, like
digital signature, public key infrastructure, e-governance, cyber
contravention, cyber offences, confidentiality and privacy. The Act does not
lay down the law for data protection or data privacy. It will be incorrect to
compare Information Technology Act, 2000 to the provisions which are there
in the other countries. In fact, the given act deals with the problems of data
protection in parts thus making no rigid laws to support the cause. It has no
principles only dealing with data privacy and covers very little subject of the
issue. This is in contrast with what laws the other countries have in respect to
data privacy. Therefore, even if the current act of The Information
Technology Act, 2000 is amended to add the requisite principles, it won’t be
able suffice the current situation we have in our country. We still won’t be
24
Shrishti Ojha and Rahul Mishra, Data protection law- A compliance- Centric Analysis,
Mondaq, July 8 2016,
http://www.mondaq.com/India/x/498170/Data+Protection+Privacy/DATA+PRIVACY+LA
WS+A+COMPLIANCECENTRIC+ANALYSIS
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having a stable and a sound data protection and privacy legislature that every
citizen can count on.
The scope of data privacy is very wide mainly because there is no material
limit in relation to the quantum of data protection as well as the scale of
operations of the data recipients. Further, there is no exemption for related
party data transfers or data transfers in the ordinary course of business. All
these point towards the importance of data privacy and to what extend it can
affect the person and the state.
Hence, India needs enforcement of stringent data privacy and protection laws
that will be able to take care of the prevailing situation in our country and will
match the standards of protecting the newly found Fundamental Right of the
citizens of India, Right to Privacy. This will not only be beneficial for the
people and give them a legal standing but it will also be great for our country
as a whole giving more opportunities to the people and the government to
flourish.
The aadhaar card case
PUTTASWAMY V. UNION OF INDIA25
The Supreme Court of Indian with a nine judges bench comprising of Chief
Justice Khehar and Justices J. Chelameswar, S.A. Bobde, R.K. Agrawal,
Rohinton Nariman, A.M. Sapre, D.Y. Chandrachud, Sanjay Kishan Kaul and
S. Abdul Nazeer, on 24 August, 2017 passed a landmark judgment in the case
of Puttaswamy v. Union of India and declared that Right to Privacy is a
fundamental right under Part III of the Constitution of India.
The petitioners, former Karnataka High Court Judge Justice K.S. Puttaswamy
and others, argued that the biometric data and iris scan collected from the
citizens in order to issue Aadhaar Card violates the right of privacy of the
25
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people as it was vulnerable to exposure and misuse as proper steps for its
protection were not being taken. To which the attorney general argued that,
the Right to Privacy is not expressly mentioned in the Constitution and also
it can not be inferred from article 1426, 1927 and 21 of the Constitution. The
attorney general made it clear that Right to Privacy can not be a fundamental
right as there are judgments of the Supreme Court which are binding on
everyone and only a common law principle evolving from these judgments.28
The case was decided in lieu of the recent legal problems faced by the
Indian’s national identity project, Aadhaar. People challenged the validity of
the Aadhaar being made necessary for everyone, welfare as well as the non
welfare schemes of the government and said that it violates the right of
privacy of the citizens of India.
During the case Advocate General of India argued that there is no

fundamental Right to Privacy in the Constitution of India. This argument was
on the precedents of the Supreme Court of India, MP Sharma v. Satish
Chandra29 decided by an eight judge bench in 1954 and Kharak Singh v. State
of Uttar Pradesh30, by six judges in 1962. Both the cases declared, in different
situations, that there is protection of the Right to Privacy under the Indian
Constitution. Until this case, these cases were not overruled by a bigger bench
of the Supreme Court.
The task in front of the nine judges bench was to solve and clear this issue
once and for all. The honorable court in this case undoubtedly cleared all the
confusion by overruling two of the most important judgments MP
26
Equality before law
27
Protection of certain rights regarding freedom of speech etc.
28
What the Right to Privacy judgment means for Aadhaar and mass surveillance, The wire,
August 24 2017, https://thewire.in/170700/right-to-privacy-Aadhaar-supreme-court/
29
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30
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Singh and Kharak Singh to the limit which said that Right to Privacy is not a
fundamental right under the part III of the Indian Constitution.31
The Supreme Court in M.P. Sharma enquired whether the Constitutionality

of search and seizure of documents pursuant to a FIR would violate the right
to privacy. The majority of the eight judges bench held that Right to Privacy
was not a fundamental right under the Constitution of India. Subsequently, in
Kharak Singh, the Constitutional validity of the regular surveillance by police
authorities was examined as against the fundamental rights. The court held
that the Right to Privacy was an integral part of the Article 21 of the
Constitution but was not a fundamental right.
The court also took note of the cases which held that Right to Privacy is a
fundamental right. These cases included Gobind v. State of Madhya
Pradesh32, R. Rajgopal v. State of Tamil Nadu33 and People’s Union for Civil
Liberties v. Union of India34. This case declared that the right of privacy was
protected by the Constitution under the part III but these cases were not held
binding as these decisions were taken by a smaller bench as compared to the
bench in MP Sharma and Kharak Singh cases.
This historic judgment of the honorable court is not only going to affect the
State but also the non-state actors and is most probably going to result in
formation of extensive privacy laws. The court clearly said that Right to
Privacy is a fundamental right enshrined in Article 14,19 and 21 of the Indian
Constitution and does not need to be separately present in the Constitution. It
is a natural right which forms an important part of Right to Life and Liberty.
This fundamental right extends to all the information relating to a person and
31
Right to Privacy a fundamental right, says Supreme Court in unanimous Verdict, The
Wire, August 24 201, https://thewire.in/170303/supreme-court-Aadhaar-right-to-privacy/
32
Supra no 13
33
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34
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the decision he/she takes. Hence, anything that the state does, which infringes
the Right to Privacy can be taken up for judicial review. 35
The court also made it clear that like all other fundamental rights, Right to
Privacy is not absolute and can be invaded by the government with respect to
the touchstone of reasonable restriction on fundamental rights. The invasion
on the right should be supported by a law which lays down a procedure which
is fair and just. An invasion of life or personal liberty must meet the three-
fold requirement of (i) legality, which postulates the existence of law (ii)
need, defined in terms of a legitimate state aim and (iii) proportionality which
ensures a rational nexus between the objects and the means adopted to achieve
them.
It has expressly recognized, protecting national security, preventing and

investigating crime, encouraging innovation and the spread of knowledge,
and preventing the dissipation of social welfare benefits as certain legitimate
aims of the State. The Constitution has to evolve with the change in time and
with the new challenges coming in the way of the government. Technology
advancement has led to the emergence of new problems that people could not
even think of several decades ago. Therefore, the Constitution should be
dynamic to incorporate the changes of the future36.
The Supreme Court took note of the fact that the Right to Privacy has evolved
from the narrow meaning of to be left alone, to having both a negative and a
positive content. The negative aspect will restrict the state from intruding into
35
Supreme Court declares Right to Privacy as a fundamental right, Trilegal, August 31
2017,
http://www.mondaq.com/India/x/625192/Data+Protection+Privacy/Supreme+Court+Declar
es+Right+To+Privacy+A+Fundamental+Right
36
Dhananjay Mahapatra and Amit Chaudhary, Right to privacy is a fundamental right, it is
intrinsic to the right to life: Supreme court, The Times of India, August 24 2017,
https://timesofindia.indiatimes.com/india/right-to-privacy-is-a-fundamental-right-supreme-
court/articleshow/60203394.cms
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the personal space of the citizens and the positive aspect will put an obligation
on the state to make laws in order to protect the privacy of the citizens.
In this age, where technology is everywhere and everything is on the internet,

one should have a control on what information he/she wants to give. There
are hardly any data protection laws in this technological advanced age,
leading to the compromise of the Right to Privacy of the people. The court
acknowledged that information privacy is an important part of the right of
privacy and can be enforced against both state and non state actors.
Information protection gives the right to the people to protect data about
oneself and prevent it from being circulated.
Therefore, this decision of the court will not only affect some of the major
cases pending before the courts in India like the Aadhaar card case and the
de-criminalization of homosexuality in India but also have an impact on the
Indian legislative structure and its functioning in respect to privacy. Both state
and non state organisations have to be very careful while taking personal
information and have to take the necessary steps to keep it safe.
Impact of Right To Privacy Becoming A Fundamental Right
IMPACT ON ONGOING CASES
The landmark judgment is going to affect the decisions of the ongoing cases
to a large extent. It is going to have an immediate effect to a large number
cases ranging from the Aadhaar case to the case dealing with de-
criminalisation of consensual sexual acts in private by Lesbian, Gay, Bisexual
and Transgender (LGBT).
 AADHAAR CARD CASE:
The decision of the court to make Right to Privacy a Fundamental Right

protected under the Constitution of India is going to make an immediate effect
on the main case, of which this judgment was a part. A huge legal issue of the
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fundamental nature of right to privacy, has been cleared at last and cleared
way for Aadhaar card case hearing. The five judge Constitutional bench
referred the case to a nine judge bench to check whether the Aadhaar scheme
which involving the collection and storage of biometric data, is within the
permit of reasonable restrictions to the fundamental rights of the people. The
court has to make sure that the reason for which the data is collected is a
legitimate state reason and is beneficial for the public as a whole. In case there
is any leakage of the information from the state database, it will make the
state liable for the violation of fundamental rights of the citizens. By making
clear that privacy is an important element of dignity and liberty and hence
clearly embedded in our Constitution, this will make sure that the impact of
the Aadhaar card case on the citizen’s rights are properly analysed. The
judgment is going to be used to try and amend the Aadhaar Act and try to
make it suitable to cover all the rights of the people and to insure that the
government takes adequate steps to protect the data of the individuals.
Aadhaar Act was introduced with the opinion to keep it voluntary. But
subsequently the government made the Aadhaar card mandatory and started
linking it to PAN Card, income tax, bank accounts, etc. and the question of
protection came in as the provisions in India do not provide for a high
standard of security.37
The main problem arose when the government made it mandatory. The aim
of Aadhaar card was to ensure that the government benefits and resources are
equally distributed among the citizens but Aadhaar being mandatory to open
a bank account or book a railway ticket is not at all logical. The government
has to make stringent laws to prove the usefulness of the Aadhaar card and
list its advantages. The government argued that people have already lost their
37
Right to Privacy made a fundamental right: How Supreme Court verdict will Affect other
cases, News !8, August 24 2017, http://www.news18.com/news/India/with-privacy-ruled-
as-fundamental-right-Aadhaar-sees-a-challenge-1499845.html
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privacy with Google and Facebook but there is no government law which
makes it mandatory for the people to use it.
The scope for the people to claim Right to Privacy has increased many folds.
It is now in the hands of the government to prove that whatever they are doing
falls under the ambit of reasonable restriction as no fundamental right is
absolute.
The judgment will also open a way for the issue of Aadhaar – PAN linkage
which has been stayed by the 2 judges bench of the Supreme Court under the
proviso sub-section (2) of Section 139AA of the Income Tax Act that declares
that PAN card will be invalid if it is not linked to the Aadhaar card. The
decision will also have a critical bearing on the petition regarding 17
government notifications making Aadhaar a must to access welfare benefits.
 NAZ FOUNDATION CASE38:
Another significant effect Right to Privacy becoming a fundamental right

would be on the petition filed in the Supreme Court against the earlier
verdict39 which held section 377 of the Indian Penal Code which
criminalises consensual sexual act by lesbian, gay, bisexual and
transgender in private, as valid. The judgment will give a new ray of hope
to the prolonged fight to decriminalize section 377 of IPC. The judgment
regarding privacy clearly proves that the decision of the court in 2014 is
bad law as it goes without saying that one’s sexual orientation is a
fundamental element of one’s identity and hence is related to a person’s
privacy.
In 2016, the court agreed to set a five judges bench to hear the petitions
regarding section 377 being violative of Right to Privacy leading to
injustice. The court held that the impugned section has an effect on the
38
Suresh Kumar Koushal v. Naz Foundation, Civil Appeal No. 10972 of 2013
39
Naz Foundation v. NCT of Delhi, Writ Petition (civil) No. 7455 of 2001
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privacy and dignity of the people. Discrimination against a person on the

basis of sexual orientation is evidently unlawful and will be offensive
against the dignity and the self worth of the person.40
It should also be brought to the notice of the people that Right to Privacy
being a fundamental right the government owes a greater duty of care to
make sure it is not violated in any way and also have a positive duty to
implement laws to safeguard this right. This protection should not only
be against the government but also against the corporates and non state
actors.
Hopefully this will affect the thinking of the judges and they will
overrule the previous judgment to criminalise consensual sexual act by
lesbian, gay, bisexual and transgender in private and uphold section 377
of IPC as this piece of law evidently violates the privacy of the person
and the right which he/she has to make choices in regard to sexual
activities. Such law also violates other fundamental right of people like
right to equality in article 14 of the Indian Constitution.
 WHATSAPP AND FACEBOOK CASE:
This case was regarding a contact between WhatsApp and Facebook in 2016
to share user information including messages, pictures, videos, etc. The same
was challenged by two students Karmanya Singh and Shreya Sethi. The
council representing them argued, that such a contract is violative of the Right
to Privacy of the people as without the consent of the users their personal
information was being shared between WhatsApp and Facebook.41
40
Kritika Bhardwaj, Right to Privacy judgment will ensure more rigorous analysis of
Aadhaar’s impact, The Indian Express, August 25 2017,
http://Indianexpress.com/article/opinion/true-test-of-sc-ruling-on-right-to-privacy-will-
depend-on-its-application-4811787/
41
Krishnadas Rajagopal, The impact of privacy verdict, The Hindu, August 25 2017,
http://www.thehindu.com/news/national/the-impact-of-the-privacy-
verdict/article19556333.ece
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The danger to privacy and data protection in todays world is not only from
the government or the state but also from the non state actors. Now that the
court has said that the Right to Privacy is a fundamental right the government
has to make stringent laws for data protection to ensure companies don’t enter
into such contracts to share private data with other companies without the
consent or permission of the owner of the information as it is clearly violative
of the fundamental right of the citizens.
 EUTHANASIA AND ABORTION CASE
Laws on euthanasia and abortion will also be affected by privacy becoming a

fundamental right. An individual has an inherit right to refuse life prolonging
medical treatment or to terminate his life. This falls under the realm of privacy
as a person has a right to choose whether he wants to live miserably or die.
With privacy now being a fundamental right it will give an edge to the people
in favor of euthanasia.42
Talking about abortion, a woman has freedom of choose whether to bear a

child or to abort it and hence it falls under the ambit of right to privacy. With
the recent debates going on regarding abortion in our society, this judgment
will have an effect on the abortion laws in India.
IMPACT ON INDIAN LEGISLATURE
The Puttaswamy judgment being a landmark judgment on the debate on

privacy, was a legal development in relation to informational privacy. In the
various sectors of India, several legislative attempts have been carried out
specially in order to secure the informational privacy in India. Under the
Information Technology Act, 2000 (IT Act) these rules of general data
42
Right to Privacy is a fundamental right: How the Supreme Court judgment affects you,
Firstpost, August 24 2017, http://www.firstpost.com/India/right-to-privacy-is-fundamental-
right-how-the-supreme-court-judgment-affects-you-3968847.html
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protection as well as other sector related specific data protection laws are
included. Which is The Information Technology (Reasonable Security
Practices and Sensitive Personal Data or Information) Rules, 2011 (SPDI
Rules).
Under Section 43A43 of the IT Act, the SPDI Rules have been issued. It is
related to, Compensation for Failure to Protect Data and enable the enactment
of reasonable security practices and procedures for the protection of sensitive
personal data. The SPDI Rules includes, to a certain limitation, the
Organization for Economic Co-operation and Development (OECD)
Guidelines, and more specifically- collection limitation, purpose
specification, use limitation as well as individual participation.
Every organization is required to have a privacy policy. The SPDI Rules gives
a certain time period for the people to retain any information and give them
the right to correct any of their information. No information can be disclosed
without the consent of the provider of that individual, or unless such
disclosure is authoritatively allowed or important for any such lawful
consistence.
The consent of the individual is not required if such information is shared

with Government agencies and it can also be shared for the verification of
identity, prevention, detection and investigating cyber incidents, prosecution
and punishment of offences.
The SPDI Rules does not apply to the Government and the Government
agencies. It only applies to corporate organizations. Attributes like medical
records, biometric information, sexual orientation, history, etc. are sensitive
personal data which is restricted by the SPDI Rules. It is important to make a
comprehensive law to adequately secure the personal information in every
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one of its measurements and to guarantee a successful authorization hardware

for the same.
Under Article 21 of the Constitution of India, Right to Privacy laid down in

Puttaswamy flows from the right to life and personal liberty. A legislation
that flows from the fundamental right such as right to privacy, must include
a natural person in its fold. While a juristic element can claim and exercise
certain crucial rights, the thoughts of self-rule and poise may not be
completely pertinent to it. Lawful processing and individual participation are
the key principles of data protection. Its main objective is to protect the
autonomy and dignity of the individual. To extend these principles to a data
related juristic body would be difficult. For an individual’s private
information to be protected, a comprehensive data protection law must be
applied across the board.
Furthermore, the law might be devised to give grounds for preparing, and
certain sensible exclusions for data gathering, used, uncovered, retained or
stored by public organizations. However, it is dubious whether public
organizations can be totally barred from the purview of data protection law.44
As no fundamental right is totally absolute the legitimate state interest must

be protected through exemptions that may be carved out in a data protection
law, which has been recognized by the Supreme Court. Data which is
collected, used, stored, disclosed or retained, the data protection law be
applicable.
Significant obligations related to data protection law will be imposed for all
entities involved in the collection, use, disclosure, retention and storage of
personal data. An effective implementation of the law should contain a short
44
Privacy law please: To actualize privacy as a fundamental right, India needs
comprehensive legislature, The Times of India, August 31 2017,
https://blogs.timesofIndia.Indiatimes.com/toi-editorials/privacy-law-please-to-actualise-
privacy-as-a-fundamental-right-India-needs-comprehensive-legislation/
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lived provision to ensure that all obligations are sensible, and are followed in
the given time period. The importance of balancing harnessing technology
and preserving privacy has never been so important before than it is today
because with the growing users of technology and social media, the incidents
of identity theft, unauthorized access and other such breaches has increased.
By protecting the data and keeping personal data of the citizens secure and
save, it is expected to provide a big boost to the Digital economy of the
country. To focus on data protection, the government’s decision comes on the
back of a wave of data protection and its breach.
The Union Ministry of Electronics and Information Technology (MEITY) has
constituted an expert committee to study and identify the key issues related
to data protection and recommends methods for addressing them. The
committee along with addressing the issues will also suggest a draft data
protection bill.
The need for privacy legislation in India has been a strong public discussion
since 2010. In November 2010, a “Privacy Approach” paper was released to
the public which brought visualized creation of a data protection legislation.
A privacy regime that encompasses data protection, surveillance, and mass
marketing and also recognition of privacy as a fundamental right was released
in a draft privacy bill by the Department of Personnel and Training in 201145.
In 2012 the Report of the Group of Experts on privacy was published46.
Currently, the Department of Personnel and Training is drafting the text of
the Governments Privacy Bill. The Centre for Internet and Society drafted the
45
Apar Gupta, Analysis of The Privacy Bill, INDIA LAW AND TECHNOLOGY BLOG,
(Aug. 18, 2011), http://www.iltb.net/2011/06/analysis-of-the-privacy-bill-2011/
46
Justice A P Shah, REPORT OF THE GROUP OF EXPERTS ON PRIVACY, (Oct. 16,
2012), http://planningcommission.nic.in/reports/genrep/rep_privacy.pdf
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Citizen’s Privacy Protection Bill in 2013, on a citizen’s version of a privacy

legislation or India47.
From April 2013- October 2013, in collaboration with the Federation of

Indian Chambers of Commerce and Industry and the Data Security Council
of India, the Centre for Internet and Society held a series of seven Privacy
Roundtables across India. The objectives were to gain public feedback to a
privacy framework in India from the Roundtables. Several topics which were
discussed during the meetings included, how to define sensitive personal
information vs. personal information, if co-regulation should be a model
adopted as a regulatory framework and what should be the legal exceptions
to the right to privacy48.
The dangers to privacy in an age of information can originate not only from
the state but from non-state actors as well. The Union Government needs to
examine and put into place a robust regime for data protection. It has to pay
attention to maintaining a careful and sensitive balance between the interests
of the citizens and the concern of the state. The legitimate interests of the state
includes circumstances protecting national security, preventing and
investigating crime, encouraging innovation and the spread of knowledge,
and preventing the dissipation of social welfare benefits.
These are matters of policy are to be kept in mind by the Union government
while designing a properly structured legislature for the protection of the data.
The union government has informed the court that a committee is formed,
chaired by the by Hon’ble Shri Justice B N Srikrishna, a former judge of the
Supreme Court of India, to take care of the current need. The matter needs to
47
Bhairav Acharya, Privacy (Protection) Bill, 2013: Updated Third Draft, Sept. 30, 2013,
http://cis-India.org/internet-governance/blog/privacy-protection-bill-2013-updated-third-
draft
48
Bhairav Acharya, The National Privacy Roundtable Meetings, Sept. 19, 2013,
http://cis-India.org/internet-governance/blog/national-privacy-roundtable-meetings
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be handled by the union government giving due regard to the points made by
the judges of the case in their judgment.
Impact On Government, Private Corporations And Citizens:
Right to Privacy being called the most progressive judgment in the recent
time, will give an opportunity to the citizens to challenge the decisions of the
government if it is violating their privacy. This will help people to keep a
check on what the government is doing. People can sue the government in
case of a breach. Hence, the government will be forced to prescribe proper
legislature to ensure data protection, privacy and to protect consumer interest.
The laws would lay down guideline for the corporates which they have to
follow to protect the data. The companies would have to be more transparent
and clear data collection practices and the usage of that data. The government
will also be responsible to monitor these corporates and ensure that their
practices and policies are with respect to the laws.
The judgment makes clear that we should not be expecting much when it
comes to surveillance which is in respect to the legal procedures the Right to
Privacy is not an absolute right. So nothing big will happen regarding
surveillance in the near future but no one can deny the long term impact. This
is going to make things more difficult for the government as they argued in
the court that not all elements of privacy are fundamental. The attorney
general argued that the elite few can’t claim their integrity are being affected
by a scheme which has been initiated to bring basic human rights and social
justice to millions, who are poor and underprivileged in the country.49
49
How Right to Privacy as a fundamental right will impact cyber security in India,
Fossbytes, August 27 2017, https://fossbytes.com/right-privacy-fundamental-right-cyber-
security-impact-India/
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When they launched the world largest biometric scheme in the world it was
completely voluntary but subsequently it was made mandatory, whose
validity was challenged in the court of justice.
The petitioner argued that if a private corporate takes data and it leaked that
information, then one can sue the body corporate, but when the government
does the same thing, why is there no remedy against that. The government
should have a privilege for certain reasons but there should be a limit to it.
The government cannot be out rightly exempted from all the liability.
As we all know that no fundamental right is absolute, it very difficult to

decide the extent of this judgment which is going to affect the government,
corporates and citizens, but one thing is clear that things are going to change.
The right of the citizens has been recognized by the courts and this will make
the things more stringent for the corporates and the government will reduce
the tension of the citizens and increase their faith in these corporations.
IMPACT ON SURVEILLANCE
The public discourse about the surveillance that the Indian government has
been undertaking is growing and is now being linked to privacy and the need
to enact a privacy legislation. While the present surveillance administration
is missing numerous fronts, in the meantime the government keeps on looking
for more prominent capture attempt forces and more access to bigger
arrangements of data in greater granularity.
Projects like the Central Monitoring System, The National Grid

(NATGRID), and Lawful Interception Solutions have caused individuals to
question the government on the proportionality of State surveillance and ask
for a comprehensive privacy legislation that also regulates surveillance.50
50
Akhil Deo, How the Right to Privacy judgment will and wont impact Indians Data
protection regime, The Wire, August 24 2017, https://thewire.in/170689/right-to-privacy-
data-protection/
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In 2013, the International Principles on the Application of Human Rights to

the Surveillance of Communications were drafted. To ensure that surveillance
is in accordance with international human rights law and serve as safeguards
that countries can incorporate into their regime is what the standard principles
lay out. The need for strong and enforceable surveillance provisions is not
unique in India. The principles highlight the challenge of how technology is
constantly changing, and with the rapid growth of changing technology how
information can be surveyed by governments and what information is
surveyed by the government and how that information can be studied,
analyzed and combined to draw conclusions about the individuals. The
principles also include- legality, competent judicial authority, public
oversight and legitimate aim, integrity of communications and systems, and
safeguards for international co-operation51.
 IMPACT ON EMPLOYEES
The number of outlets and the adequacy of the media, alongside the
innovation of technology with which an employee can impart and exchange
data, is more noteworthy today than ever before. While employee
surveillance has not been managed under the IT Act, these issues have
accepted great significance especially in light of the quickly developing
information technology and outsourcing industry in India. Employers may
face serious issues as far as information leakage, intellectual property
infringement, defamation and other large groups of different issues in
instances of abuse of such methods for correspondence by an employee. For
example, if an employee downloads explicit material on an office workstation
and circles such material to different workers, then such activity might be
translated to be an instance of crude and offensive behavior and the business
51
Swapna Raghu, Right to Privacy verdict: How does it Impact you?, Financial Express,
August 24 2017, http://www.financialexpress.com/india-news/right-to-privacy-verdict-
how-does-it-impact-you-all-you-want-to-know-about-privacy-as-a-fundamental-right-from-
leading-sc-advocates/823514/
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may wind up noticeably obligated for creating an unfriendly environment.

There are different ways and means in which businesses screen their
employees, including the recording of phone calls, observing of emails and
surveillance cameras. Notwithstanding the controversial and legal issues
related with employee checking cannot be overlooked.52
While the Constitutional Right to Privacy under Article 21 of the Constitution

is available only against state action, in the absence of legislation in this
matter, the similar standard principle might be stretched out to the private
circle. All things considered are of basic significance to ensure that a balance
is maintained between the employer’s necessity to obtain information and
monitor employee activities to protect the organizations interest, and the
employees bona fide worries with respect to privacy.
Pre-Requisites for drafting a substantial legislature by the government

The government has to keep in mind multiple things when it decides to
develop a legislature for data protection and privacy in India. Making law for
a diverse country like ours is not a cake walk. The government has to make
sure to form a legislature which would be able to tackle the problems that will
arise in the future with the more advancement in the technology, for which
they have to keep in mind certain issues and principles.
MODES OF REGULATION
The basic human right of the international community is based on the Right
to Privacy and Data Protection. Therefore, India is under a moral as well as
legal obligation to also enact Right to Privacy and data protection regulations.
With the technology increasing rapidly in the world, India is bound to follow
52
Impact of Right to Privacy ruling on Employee Monitoring, People Matters,
https://www.peoplematters.in/article/technology/impact-of-right-of-privacy-ruling-on-
employee-monitoring-16236
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the regulations in order to have a more secure and safe community. There are
two modes of regulations which can followed. There are: 53
 SELF-REGULATION:
In order to increase the growth in e-commerce India can take certain

initiatives in promoting the Indian industries especially in the e-commerce
area. If the industries carry out self-regulation it offers a great advantage to
those who know their trade practices and are motivated by their customers.
Self-regulation can be done by the industries in offering flexible policies in
order to make this alternative flourish in India. Self-regulation could likewise
be cost effective to the government as there would be no compelling reason
to establish implementation mechanisms. However self-regulation may be
difficult to be implemented due to the large and heterogamous groups of
agents but with the little risks that is has, it is still a possibility and would be
necessity for the Indian community in the coming years.
 GOVERNMENT REGULATION:
Alternatively, a specific legislation could be adopted by the government to

address the issues related to privacy and data protection. Self-regulation being
an important approach is also carried out in few countries like US. But today,
even US is slowly moving from Self-regulation to Government regulation
only to bring about uniformity and effective application of privacy standards.
PRINCIPLES THAT SHOULD BE ADOPTED
Now that the Indian judicial system has declared Right to Privacy as a
fundamental right the parliament can look forward to include certain
53
Aashit shah and Nilesh Zacharias, Right to Privacy and Data Protection, Nishith Desai
Advocates, http://www.nishithdesai.com/fileadmin/user_upload/pdfs/Right_to_Privacy_-
_data_protection.pdf
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principles in the legislature which would help them to ensure that the rights
of the citizens are protected properly.
 NOTICE - The person from the data is being taken i.e. the data subject
should be given all the necessary details or information before it is
collected, regarding the information being taken like the purpose for
which it is collected, identity of the person collecting the data, the third
parties with whom the data will be shared, the modes to contact the
organization collecting data in case of discrepancy, and the discretion
they have to limit the use or disclosure of the information.
 CHOICE - The data subject should have a clear discretion to opt out of
having his personal data being used for purposes other than the purpose
for which it was collected.
 ONWARD TRANSFER - Where the collector has followed the first two
principles, it can transfer the data the data to the third party only on the
condition that the third party also follows the principles or if it is under a
contractual agreement the receiving party has to ensure reasonable
standards of data protection.
 SECURITY- The collector of data has to take proper steps and
precautions in order to protect it from loss or misuse, and from
unauthorized access, disclosure, alteration or destruction.
 DATA INTEGRITY - The collector has to take reasonable steps to
ensure that the information collected by them is accurate, complete and
current.
 ACCESS - Data subjects should have a fair opportunity to access their
data and should have a chance to update it as and when there is a change
in it.
 ENFORCEMENT - At the minimum, enforcement mechanism must
include readily available and affordable recourse for the investigation of
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complaints and disputes, damages awarded where applicable, procedures

for verifying the truthfulness of the statements made by the data collector
regarding the privacy policy practices they follow, obligations of the
collector to remedy problems arising out of noncompliance, and
sanctions sufficiently rigorous to ensure compliance. 54
Conclusion:
Today, privacy is a much wider concept than what people conceive it to be.
Information privacy and data sharing is only one aspect of privacy.
Privacy is about freedom of thoughts, conscience and individual autonomy

and no fundamental right can be exercised without assuming certain sense of
privacy. The danger to privacy in today’s world of technological
advancement has no barriers what so ever. People are committing crimes and
stealing data by methods that one could not even think of decades ago.
Currently, India does not have data protection laws which are adequate and
suitable to handle the current cyber security situation which is prevalent in
our country.
The Supreme Court of India on 24th August, 2017 in the landmark judgment
of Puttaswamy v Union of India declared Right to Privacy a fundamental right
under article 21 of Part III of the Constitution of India and that it falls under
the purview of personal liberty.
This judgment is going to bring about a plethora of changes not only in the
judicial system of India but also in the business sector.
Many countries are not willing to trade with India due to its inadequacy of
privacy laws. Keeping in mind the growth of international trade, it is
necessary that India must have data protection laws which is in line with the
54
Aashit shah and Nilesh Zacharias, Right to Privacy and Data Protection, Nishith Desai
Advocates, http://www.nishithdesai.com/fileadmin/user_upload/pdfs/Right_to_Privacy_-
_data_protection.pdf
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standards of other developed countries.

Taking notice of the reasons mentioned, it is highly advisable that the Union
Government puts into place a robust regime of data protection. The
government is under the obligation to enforce new data protection laws in
order to fulfill the fundamental Right to Privacy of the citizens. The state
should aim to enforce a legislature which would include laws regarding
protection of national security, prevention, investigation of crimes,
encouraging new ideas and spread of knowledge and prevention of
dissipation of social benefits. These are the principles that the government
should make sure are included in the new legislature and that it is carefully
structured.
A legal framework is needed to be established which lays down standards

regarding the methods and the purpose for which the personal data of a citizen
is collected offline or online. Any data collected without giving a reasonable
purpose or the data being used for any purposes except for which it was
collected should make the organization collecting the data liable for breach.
It should set reasonable standards of data protection that organizations
whether public or private, have to follow. There should be steps taken to
increase public awareness regarding voluntary sharing of information and
make sure that no data is collected without the consent of that individual.
If the government does not take reasonable steps to protect the data of the
citizens, Right to Privacy being a fundamental right of the citizens will make
the government liable in the court of justice.
This landmark judgment is not only going to have a positive effect on the
legislature and some of the very important cases like the Aadhaar Card case,
LGBT case, as well as Euthanasia but will also have a huge impact on the IT
sector and the business sector in India as a whole. Also, it is going to have an
impact on the rules and policies regarding the data protection. This is going
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to help the customers and employees for sure, but more importantly it is going
to help the economy of India boom.
A strong piece of legislature of data protection and data privacy in India will
not only give a sense of satisfaction and security to the citizens, which is
needed in today’s world where everything is based and dependent on a digital
platform but also will help India take full advantage of the opportunities and
benefits that e-commerce presents towards a developing nation like ours. The
future of India’s trade depends on striking effective balance between personal
liberties and secured means of commerce. This situation can be rightly
summarized by the proverb, ‘to kill two birds with one stone’. Therefore, the
country can not only achieve security to its citizens but also take full
advantage of the open doors that e-commerce presents towards our country.
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WATER LAWS IN INDIA: AN OVERVIEW

Aunohita Chatterjee 1
Water is an essential element of our life force. It is a basic human right which
means a person cannot be denied the right to water by an authority or law.
The United Nations Development Programme (UNDP) once defined water as
“the stuff of life and a basic human right’.2 The definition emphasises the
importance and availability of water for all. The usage of water is not limited
to the human body it also plays a huge role in other aspects of human activity.
Water is the source of life for all things living and without it the balance of
nature will collapse. Hence, every nation wants to have ownership over water
bodies that are within the borders of their territory. Although, previously
water laws were more control and access oriented, the rapid increase in water
pollution and decrease in water quality has played its part in the formulation
of quality regulations, water delivery policies and other rules concerning the
environment. The water laws in India consist of both international and
national framework. The international law comprises of international treaties
and agreements where as the national laws are further divided into state or
federal laws and other formal policies and regulations. The international
water laws have greatly influenced the water laws in India. For many years,
international water law included mostly treaties concerning navigation in
international rivers, which constituted one of the early areas of collaboration
among states.3 This has been expanded to many non navigational aspects over
time but the focus on international watercourses remains an important part of
water law, as exemplified in the Farakka treaty.4 It is a treaty between the
1
Student, SLS Hyderabad.
2
United Nations Development Programme, Human Development Report 2006 – Beyond
Scarcity: Power, Poverty and the Global Water Crisis 1 (New York: UNDP, 2006).
3
Philippe Cullet, Water Law in India: Overview of existing framework and proposed
reforms, (2007-01) International Environmental Law Research Centre, available at
http://www.ielrc.org/content/w0701.pdf , (viewed on 16/06/18 at 12:06pm)
4
Ibid.
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government of India and the government of Bangladesh on sharing of the

Ganga/Ganges waters at Farakka.5 The international laws have also expanded
its scope to the non navigational aspects of water. The Convention on the Law
of the Non- navigation Uses of International Watercourses that was adopted
in 1997 provides a framework for cooperation among states on international
watercourses concerning the use of their waters apart from navigational
aspects6. However, India is not a party to this convention due to the limited
scope of the treaty. There are many other treaties concerning the international
waters such as the UNECE Convention on Environmental Impact
Assessment7, Desertification Convention8 and the Convention on Wetland9.
The first convention deals with dams and other water-related infrastructure
projects.10 Unfortunately, India is still not a signatory to this convention. The
second convention is regarding the recognition of the measures required to
combat desertification. The last convention which is also known as the
Ramsar Convention is particularly noteworthy because it goes beyond the
main water treaties insofar as it considers water, which is entirely under
national sovereignty11. Beside these treaties there are a number of non-
binding instruments like Dublin Statement12 and Declaration on the Rights of
Indigenous People13 that are directly or indirectly related to water. As
5
Farakka Treaty, New Delhi, 12 December 1996, 36 Int’l Leg. Mat. 519 (1997);
http://www.thewaterpage.com/farakka_water_treaty.htm (viewed on 16/06/18 at 12:31pm)
6
Cullet ,Supra note.2
7
Convention on Environmental Impact Assessment in a Transboundary Context, Espoo, 25
February, 1991.
8
United Nations Convention to Combat Desertification in Those Countries Experiencing
Serious Drought
And /or Desertification, Particularly in Africa, Paris, 14 October,1994.
9
Convention on Wetlands of International Importance Especially as Waterfowl Habitat,
Ramsar, 2 February 1971.
10
Cullet,Supra note. 2,5
11
Cullet, Supra note.2,5,9
12
Dublin Statement on Water and Sustainable Development, International Conference on
Water and the Environment, Dublin, 31 January 1992.
13
Article 32(2), United Nations Declaration on the Rights of Indigenous Peoples, in Report
to the General Assembly on the First Session of the Human Rights Council, UN Doc.
A/HRC/1/L.10 (2006).
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compared to the international water laws, the national water laws of India are
more reasonable in term of its application and development. The national laws
comprise of various principles, acts and rules. Certain old laws are also used
as reference while formulating new laws. The Northern India Canal and
Drainage Act, 1873 was enacted to regulate the North Indian irrigation,
drainage and navigation system. This act introduced the government’s right
to regulate water bodies for public purposes. However, during this period the
laws did not allow state ownership over water bodies. This perspective of
state ownership changed only after the enactment of the Madhya Pradesh
Irrigation Act, 1931. The water laws in India are state based due to the
provisions under the Indian Constitution. The Central or the Union
government has limited powers in this area. Although, it can legislate on
certain matters regarding inter-state water disputes. The Inter –State Water
Disputes Act, 1956 provides a solution for the non-negotiable interstate river
disputes among states. The Union or Central Governments can also set up
river boards as per the provisions under the River Boards Act, 1956. India
recognises the importance of a national regulation concerning water in India.
Therefore, the parliament of India adopted the Water (Prevention and Control
of Pollution) Act, 1974, which consist of provisions on prevention of water
pollution and overall maintenance of the quality of water of the entire nation.
India follows certain common law rules and principles regarding both surface
and ground water. The surface water rules are based on the principle of
Riparian Rights. These are rights which belong to persons who live on a
shore, bank or a river, ocean or lake because they live there.14 In recent times,
the riparian right theory has increasingly been rejected as the appropriate
14
Annie Mampilly, RIPARIAN RIGHTS IN INDIA available at
http://www.nluassam.ac.in/docs/lex%20terra/Lex_terra_issue_29.pdf (viewed on
18/06/2018 at 1:03pm)
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basis for adjudicating water claims.15 Further, common law rights must today
be read in the context of the recognition that water is a public trust. 16 The
regulation regarding groundwater has also been an area of concern since the
colonial period i.e. during the prevalence of common law in this country. The
basic principle was that access to and use of groundwater is a right of the
landowner.17 In the recent years, this principle has been widely criticised due
to the rapid decrease in ground water levels. As a result of the rapid expansion
of groundwater use, the central government has tried since the 1970s to
persuade states to adopt groundwater legislation.18 It is only over the past
decade that some states have eventually adopted groundwater acts. 19 Beside
these laws, there are several others which are partly concerned with the
regulation of water such as the Environmental Impact Assessment
Notification20, Guidelines for Environmental Impact Assessment of River
Valley Projects21, Land Acquisition Act, 1894 and few others. As mentioned
earlier, water also plays a significant role in terms of Human Rights. The
Right to Water is a fundamental right, although it is not specifically
mentioned in the Indian Constitution. It is a right under the umbrella of Article
21 of the Constitution of India. In Subhash Kumar v. State of Bihar, it was
recognised by the Supreme Court that the right to life ‘includes the right of
15
Lee Kuan Yew School of Public Policy, Water Quality Policy and Management in Asia
( Editor: Cecilia Tortajada) (2013) (Publisher: Taylor& Francis) (ISBN 13:978-0-415-
81363-1) (viewed on 18/06/18 at 1:30pm)
16
Ibid.
17
Cullet, Supra note.2,5,9,10
18
Model Bill to Regulate and Control the Development and Management of Ground Water,
2005,
available at http://www.ielrc.org/content/e0506.pdf.
19
Kerala Ground Water (Control and Regulation) Act, 2002,Andhra Pradesh, An Act to
Promote Water Conservation, and Tree Cover and Regulate the Exploitation and Use of
Ground and Surface Water for Protection and Conservation of Water Sources, Land and
Environment and Matters,
Connected Therewith or Incidental Thereto, 2002, and Goa Ground Water Regulation Act,
2002,
20
Notification on Environmental Impact Assessment of Development Projects, 2006
21
Guidelines for Environmental Impact Assessment of River Valley Projects, 1985
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enjoyment of pollution free water and air for full enjoyment of life’. 22The
conclusion drawn after an overview of water laws in India is quite unsettling.
The legal framework lacks a proper structure and most rules and regulations
concerning water are scattered all over the country. Many laws that are still
applicable are very old and outdated. Also, the water laws in India don’t
address a lot of issues that are considered relevant now. However, in spite of
its failures; India is trying to progressively work towards a much needed
reform in this sector. Reformation is a slow and difficult process but it is not
impossible to achieve it .Therefore, India can still hope for a better future with
a legal framework that truly meets the society’s requirement.
22
Paragraph 7, Subhash Kumar v. State of Bihar, AIR 1991 SC 420.
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MINERVA MILLS V. UNION OF INDIA

(AIR 1980 SC 1789)
Siddharth Baskar 1
Introduction
Minerva Mills v. Union of India (AIR 1980 SC 1789) is the landmark cases
in India which deals with the basic structure of the constitution, wherein the
constitutional validity of section 4 and section 55 of the 42nd Amendment Act
were questioned. The parliament of India has the power to amend the
constitution (under Article 368). However, there are some limitations for
amending the constitution regarding the power of parliament. The
fundamental structure of the doctrine was laid down in the Keshavananda
Bharti Case for the first time. This has been used upon for reference since
then.
The parliament has no power to amend the constitution, if the basic structure
of constitution is in question. Under Article 368, it is clearly mentioned that
parliament may amend laws which does not violate the basic structure and
basic features of the constitution. This case also relies upon the Keshavananda
Bharti Case for the better decision making.
Facts
In this case, the Petitioner no.1 is the owner of the textile undertaking,
Minerva Mills in the State of Karnataka. This textile undertaking got
nationalized. The Central government took over the unit in 1974 under the
Sick Textile Undertakings (Nationalization) Act. Petitioners no.2 to 6 are the
shareholders of Petitioner no.1.
The Respondent no.1 was the Union of India in this case while Respondent
no.2 is National Textile Corporation Limited, under which Minerva Mills was
1
*Amity Law School, Amity University, NOIDA, U.P.
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vested under Section 3(2) of the Nationalization Act, 1974. The management
of petitioner’s mills was taken over the respondent no.2, on the basis that the
affairs of the mill were managed in a manner environmental harmful to public
under Section 18A of Industries (Development and Regulation) Act of 1951
as well as they anticipated a substantial reduction in the production volume.
This decision was made by Respondent number 2, on the basis of the report
of a committee appointed by Central Government. The Petitioners filed the
petition challenging the constitutionality of Section 4 and 55 of 42nd
Amendment Act of Constitution.
Issues
Minerva Mills case deals with some of the complex topics like basic structure
of the constitution, fundamental rights, DPSP (Directive Principles of State
Policy), 42nd Constitutional Amendment and so on. However, there are two
main issues of focus in this case. 1. Whether the Section 4 and Section 55
alter the basic structure of the constitution and hence are deemed to be
unconstitutional?
2. Whether Directive Principles of State Policy under Part IV of the Indian

Constitution can override the Fundamental Rights conferred by Part III of the
Constitution?
Arguments Advanced by the Petitioner
The Parliament has been provided with the right to amend laws of the
constitution under Article 368. However, these powers to amend the laws of
Indian Constitution have implied limitations on as to which laws can be
amended by the parliament. The parliament was provided with a limited
amending power but over the years, the parliament has enlarged this limited
amending power. The Petitioner argued that the Parliament cannot amend the
laws which might threaten the very fabric of the constitution.
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The petitioner believed that both the Directive Principles and Fundamental
Rights are important. They can only work effectively in harmony with each
other. Article 31C of the Constitution was amended by Section 4 of the 42 nd
Constitutional Amendment Act according to which Directive Principles of
the State Policy could not be called into question by any court of law if the
Fundamental Rights were violated and judicial review is out of question. This
approach was taken with the view of the socialist goal in mind.
The immunity given to the laws for giving due effect of the Direct Principles
is an invitation or a potential threat to the very existence of Article 14 and 19
of the Constitution and would affect the basic structure of the constitution.
The Petitioner was argued in regards to Section 55 of the 42nd Amendment
which inserted the sub sections 4 and 5 of Article 368 has made the parliament
believe its power to be enlarged than it actually is and limitation becomes
non-existent.
Arguments Advanced by the Respondent
The respondents contended that the implementation of laws for the purpose
of DPSP is in public interest and argued that no DPSP can alter the basic
structure of the Constitution while achieving the ends as they themselves are
fundamental in the governance of the country. They were of the opinion that
laws for the welfare of people while depriving some fundamental rights
cannot violate the basic structure of the constitution.
Judgment
The judgment of this case was delivered by a five judge constitution bench of
Chief Justice YV Chandrachud, PN Bhagvati, AC Gupta, NL Untwalia and
PS Kailasam on 31 July 1980. The Hon’ble Court held that Section 4 and 55
of 42nd Constitutional Amendment as unconstitutional on the basis that it
violates the fundamental structure of the constitution. CJ Chandrachud while
relying on the Keshavananda Bharti Case stated that “The Parliament has the
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right to make alterations in the Constitution so long as they are within its basic
framework”. The aforesaid amendments tend to confer unlimited amending
power on to the Parliament extending up to the effacement of the Constitution
itself. The majority opinion was of the view that the Parliament has the limited
amending power to make and amend laws but this power cannot be expanded
as to make this limited power into an absolute one under Article 368. The
parliament cannot make or amend laws which might violate or damage the
fundamental structure of the constitution. The court further held that “Judicial
Review” is also a fundamental and important feature of the constitution.
Analysis
The main issue in this case was the 42nd Constitutional Amendment Act’s
Section 4 and 55 and their constitutional validity. The case revolves around
the basic structure of the Constitution, powers of parliament to amend laws,
the relation between Fundamental Rights and DPSP, supremacy of one over
another. The court’s Judgment of Section 4 and 55 being unconstitutional has
been appreciated and delivered by the majority of the bench. Directive
Principles of State Policy and Fundamental Rights have been deemed to be
very fundamental in the governance of the country. One provides the
guidelines for the state to follow while the other protects the basic rights of
people. In order for them to work effectively, they must work in harmony
with each other and if one tries to maintain its supremacy over the other then
that will be detrimental not only to the public but to the nation as well.
Thus, the decision of the court was appropriate and it ponders us with the
power of the court and constitution and reminds us the supremacy of
constitution. Time and again, cases requiring high presence of mind with a
keen sense of judgment have been put forth in the Court of law and it is the
duty of the judge to provide the court with an order in the light of justice.
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Conclusion
This case is one of the landmark cases related to the basic structure of the
constitution and places emphasis on the ratio decidendi of Keshavananda
Bharti’s case while delivering the judgment of the case. The impact of this
case was a check on all the three organs of the government and ensuring that
they all work in harmony with each other and not in contradiction. Moreover,
this case also stated the “Judicial Review” as one of the fundamental
structures of the constitution that cannot be excluded under any
circumstances. Consequently, DPSPs in conflict with Fundamental Rights
can be under judicial review. The case concluded with a judgment declaring
the Section 4 and 55 of 42nd Constitutional Amendment Act as
unconstitutional.
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INTERNATIONAL LAW: SOURCES, NEED AND

IMPORTANCE
Gunish Aggarwal 1
Introduction
According to Oppenheim, International Law is essentially a product of
Christian civilization and began gradually to grow from the second half of the
Middle Ages. This view is subject to criticism because there are several such
principles and rules of International Law as existed in their developed form
in the ancient period. Some of them have existed in their developed form in
ancient India. The view of Oppenheim and other Western Jurists that
International Law owes its birth to the modern European system is not correct.
International Law was in a developed state in the Ramayana and Mahabharata
period.2 Thus the birth of International Law can be traced back to ancient
times. However, it cannot be denied that the words ‘International Law’ were
used for the first time by eminent British jurist, Jeremy Bentham in 1780.
Since then, these words have been used to denote the body of rules which
regulate the relations among the states. Though International Law can be
traced to ancient Greece, Rome and India, it cannot be denied that the Public
International Law which we know today, study and practice has come to us
1
Fifth Year/Ninth Semester, Chanderprabhu Jain College Of Higher Studies And
School Of Law, Affiliated To Guru Gobind Singh Indraprastha University, New
Delhi.
2
A study of the Smrities (200 B.C. to 400 A.D.) would undoubtedly reveal that ancient India
had a highly developed system pertaining to the Laws and rules of war based on
considerations of humanity and chivalry. The rules of war applied even if the struggle was in
the nature of a civil war which is again in conformity with the modern concept as embodied
in the Geneva Conventions of 1949 and the one underlying the recognition of
belligerency…..Let alone the Laws of War, it was much more to in the realm of the laws of
peace that India’s contribution as far as universality of application is concerned came to be
so well-known. Apart from these illustrations concerning Laws of War, there are several
important topics of International Law such as the right of asylum, the treatment of aliens or
foreign nationals, the immunity and privileges of ambassadors etc. in respect of which India
evolved rules and regulations dating back to some years before Christ.
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through Europe. It is determined by the modern European system. It will,

therefore, be proper to refer it as ‘modern International Law.’
Definition of international law by Oppenheim:
Professor Oppenheim has defined International Law as, “Law of Nations or

International Law is the name for the body of customary and conventional
rules which are considered legally binding by civilized states in their
intercourse with each other.” This definition was given by Oppenheim in
1905. He is one of the most celebrated authors of International law. However,
with the pace of time the definition has become obsolete as a number of
changes have taken place in the world. The definition has now many
criticisms.3 In the view of changing character of International Law,
3
Professor Oppenheim definition suffers from many several defects. It might have been good
and adequate when it was given, but now it has outlived its utility and has become obsolete
and inadequate. The definition is subject to following criticism.
 Firstly, it is now generally recognized that, not only “States” but public international
organisations, have rights and duties under International Law, even though they may
not have all rights and duties under International Law, even though they may not have
all the rights and duties that states have.”
 Secondly, the use of the term ‘civilized states’ by Oppenheim is also criticized. The
criterion of distinguishing so-called ‘uncivilized states’ was neither long history nor
culture. Even though China had 5000 years old culture, she was not included in the
group of civilized states. So was the case of oriental States. In the past, the Western
States regarded only the ‘Christian States’ as ‘Civilized States.’ This criterion was
undoubtedly wrong. At present there are as many as many as 193 members of the United
Nations which include Christian as well as non-Christian States.
 Thirdly, “More controversial but no longer untenable is the view that even individuals and
other private persons may have some rights and duties.” Of all the changes that have taken
place in the International Law since the Second World War, the most important change has
been the addition of new subjects. The main change that has taken place is that from the
formal structure of relation of states it is moving towards the interests and welfare of citizens
of member states. The contemporary International Law can no longer be reasonably
presented within the framework of the classical exposition of International Law as the
exposition of International Law as the law governing the relations between states but it must
be regarded as the common law of mankind in an early stage of development. It is no longer
possible to regard International Law as governing relations solely between States. At present,
it also governs relations between states and international organisations and between states
and private persons and between international organisations and private persons. Besides this,
1965 Convention on Settlement of Investment Disputes between states and Nationals of other
states deserves a special mention. Reference may also be made to the Universal Declaration
of Human Rights, 1948, which enumerates a number of rights of the individuals and now
“constitutes authorative interpretation” of human rights and the Optional Protocol to the
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Oppenheim’s definition has now become obsolete and inadequate.

International Law is today actively and continuously concerned with such
divergent and vital matters as human rights, crime against peace and
humanity, the international control of nuclear energy, trade organisation,
labour convention, and health regulations. As International Law moves today
on so many levels, it would be surprising indeed if the traditional principles
of inter-state relations developed in previous centuries were adequate to cope
up with the vastly more divergent subject-matters of International Law of the
present day. Therefore, it is necessary to redefine International Law.
New definition of international law:
International law is the body of rules which are legally binding on states in
their intercourse with each other. These rules are primarily those which
govern the relation of states, but states are not only subjects of international
Covenants on Civil and Political Rights further confirm that the individuals have become not
only subjects of International Law but can also directly claim rights and remedies provided
under International Law. Individuals can send petitions to United Nations Commission on
Human Rights. Individuals can also sent petitions or make complaints to the Human Rights
Committee established under the International Covenant on Civil and Political Rights, 1966.
Above all, the Charter of the United Nations begins with the words “we the people of United
Nations.” The developments since the inception of the U.N. particularly the international
protection of Human Rights, have confirmed that these words have not crept into the Charter
incidentally but were deliberately used and were pregnant with the meaning. It may therefore,
be observed that the present International Law cannot be regarded as the Law governing the
relations between the states, but must be regarded “as the common law of mankind in an early
stage of development.” European Convention on Human Rights, 1950, American Convention
on Human Rights, Convention on Suppression and Punishment of Apartheid, 1973,
Convention on the Elimination of All Forms of Racial Discrimination, etc. also deserve a
special mention in this connection.
 Fourthly, “it is now widely recognised that International Law consists of customary and
conventional rules but also of ‘General Principles of Law’
 Lastly, the very conception that International Law as a “body of rules” now stands
changed as static and inadequate. Further, “like all living law, international law does
not stand still but is continuously reinterpreted in the very process of its application by
authorative decision-makers, national and international.” International Law, or any law
for that matter is a dynamic concept. Law changes with the change of time and
circumstances. The changing character of International Law is a consequence of
transformation the impact of which is equally felt in the municipal legal orders. This is
good so far as it goes but it cannot be denied that it has become customary to define law
as “body of rules.” Therefore it is not proper to criticise Oppenheim on his account.
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law. International Organisations and, to some extent, also individuals may be

subjects of rights conferred and duties imposed by international law. The
definition is still deficient in one respect for its silence regarding general
principles of law recognizes by civilized nations. Thus, International Law
may be defined, “as a body of general principles and specific rules which are
binding upon the members of international community in their mutual
relations.” The term ‘international community’ is very important because it
includes states, international institutions, individuals and other non-state
entities.
Some other definitions4:
1) J.L. Brierly- He defined International Law as, “The Law of Nations or

International Law may be defined as the body of rules and principles of
action which are binding upon civilized states in their relations with one
another.”
2) Torsten Gihl- According to him, “The term International Law means the
body of rules of law which apply within the International Community or
Society of States. This definition presupposes that states constitute a
society and that this society has a legal system, International Law or the
law of nations.
3) Hackworth- In the words of Hackworth, “International Law consists of a
body of rules governing the relations between states. It is a system of
Jurisprudence which, for the most part, has evolved out of experiences
and necessities of situations that have arisen from time to time.”
4) Philip C. Jessup has defined International Law as, “the law of nations
must be defined as law applicable to the states in their mutual relations
with states.” He further adds, “International Law may also be applicable
4
See S.K. Kapoor, International Law and Human Rights, Twentieth Edition, page 33
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to certain inter-relationships of individuals themselves, where such inter-

relationships involve matter of international concern.”
5) Gray- According to Gray, “International Law or the Law of Nations is
the name of body of rules which according to the usual definitions
regulate the conduct of states in their intercourse with each other.
6) Hall- In the words of Hall, “International Law consists of certain rules of
conduct which modern civilized states regard as binding on them in their
relations with one another with a force comparable in nature and degree
to that binding the conscientious person to obey the laws of his country
and which they regard as being enforceable by appropriate means in case
of infringement.
7) Kelsen- He defined it as, “International Law or the law of nations is the
name of a body of rules which according to the usual definition regulate
the conduct of states in their intercourse with one another.
8) Queen v. Keyn- In this case, Lord Coleridge C.J. defined International
Law in the following words: “The law of nations is that collection of
usages which civilized states have agreed to observe in their dealings
with one another.
9) West Rand Central Gold Mining Ltd. Co. v. King- In this case the court
observed, International Law may be defined as “the form of rules
accepted by civilized states as determining their conduct towards each
other and towards each other’s subjects.
Criticism of the above definitions:
Every author has made an attempt to define International Law. But the
definitions given by them are incomplete. The definitions above are not
appropriate and do not properly represent international law as it exists
today.
Soviet Definition and Approach to International Law:
According to the soviet definition, International Law is “the total of norms
regulating relations between the states in the process of their struggle and co-
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operation, expressing the will of the ruling classes of these states and secured
by coercion exercised by states individually and collectively. Kazimierz Z.
Grzybowski defined international law as “the totality of norms, which were
developed on the basis of agreements between the states which govern their
relations in the process of struggle and co-operation between them,
expressing the will of the ruling class and are enforced in the case of necessity,
by pressure applied either collectively or by individual states. According to
F.I. Kozhevmikov, “International Law can be defined as the aggregate of
rules governing relations between states in the process of their conflict and
co-operation designed to safeguard their peaceful co-existence, expressing
the will of the ruling classes of these states and defended in the case of need
by coercion applied by states individually and collectively. The definition
notes the class, character and significance of International legal relations, the
nature of relations between them, conflict and co-operation and the method
of safeguarding and implementing the rules of International Law, that is their
defence individually and collectively, by the states themselves. The purpose
of the present day international law is to promote peaceful co-existence and
co-operation between all regardless of their social systems.
Chinese Definition and Approach to International Law:
According to Ma Chun, “International Law like all other branches of law, is
created in a definite stage of mankind’s social development. The origin of
International Law is directly related to the creation of the state. International
Law is created as the political, economic and the relations among the states
emerge. According to him international law possess the following
characteristics:
 It expresses the will of the ruling class;
 It is the aggregate of norms adjusting definite social relations;
 It is guaranteed by enforcement measures.
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As pointed out by Jerome Alan Cohen and Hungdah Chieu, “Imperialism is

the basic source of war.” International Law is regarded as a “legal instrument
in the service of foreign policy.” Furthermore, international law, in addition
to being a body of principles and norms which must be observed by every
country, is also, just as any law a political instrument, whether a country is a
socialist or capitalist, it will to a certain degree utilize international law in
implementing foreign policy.
Nature and basis of international law
We need to understand whether International Law is really a law or not. In
ancient times, there was a fallacy that there could be no system of law and
jurisprudence other than municipal law and jurisprudence. Professor Hart has
aptly remarked that international law is law because states regard it as a law.
It has been accepted that municipal law is a centralized system while
international law operates in a decentralized system, it becomes obvious that
comparison of the two systems is not proper. It has been opined by many
writers that international law is a weak law. For this, we need to understand
the nature and basis of the law. Some questions need to be answered in regards
to understand the nature and basis of International Law.
Whether International Law is a law in the true sense of the term or not?
The term ‘international law’ was invented at a time when the minds of the
law makers were occupied by the theories of national sovereignty. The issue
whether international law is a law or not revolves on the divergent definitions
of the word ‘law’ given by the jurists. Going back to the concept of
jurisprudence. If we subscribe to the view of the writers Hobbes, Austin and
Pufendorf that law is a command of sovereign, enforced by a superior
political authority, then international law cannot be included in the category
of law. On the other hand, if we subscribe to the view that the term ‘law’
cannot be limited to the rules enacted by superior political authority, then
international law cannot be included in the category of law. Hobbes,
Pufendorf and Austin subscribe to the view that law “properly so called” is
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command of the sovereign and is enforced by a superior political authority.

Since law is the command of a determined superior, no law can exist where
there is no supreme law giver and no coercive enforcement agency. Austin
sanction occupies an important place in the enforcement. If we go through
various concepts, everyone has a different view towards whether international
law is really a law or not. Many writers are of the opinion whether
international law lacks an effective legislative machinery. Also international
law lacks sanction which, according to the writers of this persuasion, is
essential element of law.
International law is really law:
Most of the jurists now subscribe to the view that international law is really
law. So far as the sanction is coercive force behind the law concerned, it may
be said that it is not an essential element of law of law and even sanction is
regarded as an essential element of law there are sanctions in international
law. As the legislative, judicial or executive branches are concerned, “what
matter is not whether the international system has legislative, judicial or
executive branches corresponding to those we have being accustomed to
those society? The fact is, lawyers insist that nations have accepted important
limitations on their sovereignty, that they have observed those norms and
undertaking, that the result has been substantial order in international
relations. J.G. Starke, who also subscribe to the view that international law is
really a law. In this connection, he has put forward four main arguments. In
the first place, it has been established by modern historical jurisprudence that
in many communities, a system of law existed and was being observed though
such communities lacked a formal legislative authority. “Such law did not
differ in its binding operation from the law of any state with a true legislative
authority.” Austin’s view might have been correct for his time but in view of
present day international law, they are not true. Customary rules of
international law are diminishing and they are being replaced by law-making
treaties and conventions. Law-making treaties are counterparts in the
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international system of the legislation in the municipal legal system. The term
international legislation has come into existence and it is now wrong to say
that international system has legislation at all. In the third place, “the
authoritative agencies responsible for the maintenance of international
intercourse do not consider international law as merely a moral code.” At last,
the United Nations is based on the true legality of international law.
Oppenheim regards international law because of the following reasons. In the
first place, International Law is constantly recognised as law in practice. The
government of different states feel that they are legally as well as morally
bound to follow international law. In the second place, while breaking
international law, states never deny its existence. On the contrary they
recognise its existence its existence and try to interpret international law as
justifying their conduct. An emerging system of sanctions for the enforcement
of international law, recourse to law-making treaties and certain aspects of
the activities of growing maturity in the character of jus cogens etc. are some
of the indications of a growing maturity in the international order.
There are many arguments which regard international law as really law. 5
Therefore, it may be concluded that international law is really a law.
5
The arguments which support international law as really a law are:
 The term law cannot be limited to rules of conduct enacted by a sovereign authority. Sir
Henry Maine, one of chief exponents of historical school of jurisprudence, carried on
research on historical jurisprudence and firmly established that in primitive society there
was no sovereign political authority yet there were laws.
 The Austinian concept of law fails to account for the customary rules of International
Law. If we accept the Austinian definition of law common law of England will lose its
legal validity.
 Customary rules of International Law are diminishing and are being replaced by law-
making treaties and conventions. Today, the bulk of International law comprises of rules
laid down by various law-making treaties, such as, Geneva and Hague Conventions.
The rules laid down by these treaties are binding although they do not emanate from
sovereign political authority.
 When international questions arise, states do not upon moral arguments but rely upon
treaties, precedents and opinions of specialists.
 States do not deny the existence of International Law. On the contrary, they interpret
International Law so to justify their conduct.
 In some states, international law is treated as a part of their own state. The leading case
on this point is the Paquete v. Habanna (1900) 175 U.S. 677 wherein Justice Gray
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However, it is pertinent to accept that international law is not equivalent to

municipal law. It is obvious that international law, unlike municipal law,
operates in a decentralised political system. There is no world legislature, no
international policies and no international court with compulsory jurisdiction.
Starke has expressed his view that international law is really a weak law. It is
pertinent to mention that international law operates in decentralised system
whereas municipal law operates in a centralised system. International Law
must be judged in the context of the system in which it operates. International
law must be understood and appreciated in the peculiar system in which it
operates. It is as good and effective as it can be under the circumstances and
peculiar system under which it operates.
In the international legal system there is a great difference between theory
and reality. One of the main reasons for the difference between theory and
reality in International Law is the concept of sovereignty. Each state is
sovereign and equal in the eye of law. There is no power over and above the
state. Whenever the national interests of the state are affected, it resorts to the
concept of sovereignty and hence its decision or action is based more on its
own interests than on rules of international law and it claims that even
observed: “International Law is a part of our law and must be ascertained and
administered by courts of justice of appropriate jurisdiction, as often as often as
questions of right depending upon it are duly presented for their determination.
 As per statute of the International Court of Justice, the International Court of Justice has
to decide disputes as are submitted to it in accordance with international law.
 International conferences and conventions also treat international law as law in its true
sense.
 The United Nations is based on true legality of international law.
 So far as sanction in law is concerned, international law does not completely lack it.
 It is true that international law is frequently violated but it does not mean that
international law is not law. Even state or municipal law is violated. Frequent violations
of law indicate the weakness of enforcement machinery and have nothing to do with the
legality of the rules. Legality of rules and enforcement of rules of law are two different
things.
 The decisions of the International Court of Justice are binding upon the parties to a
dispute and only in respect of that dispute. The powers and jurisdiction of International
Court of Justice are not equivalent to the municipal court but under certain conditions,
its decision can be enforced.
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international law recognises the essentials of statehood of a state. It also

recognises that certain legal consequences ensue when a state is recognised.
At present it is generally recognized that the sovereignty of state is neither
indivisible nor unlimited. States have now agreed to the curtailment of part of
their sovereignty in the interest of international community.
Distinction between Public International Law and Private International Law:
In ancient times, international law was defined as the body of rules which
regulates relations among the states. One of the main distinctions then
between Public and Private International Law was therefore said to be that
while the former regulated relations among states, the latter regulated the
relations of the individuals. There are other points of difference between
public international law and private international law.6 In some cases the rules
of Private International Law may become the rules of Public International
Law when they are incorporated in the international treaties. In such a case,
if a state party fails to observe the rules of private international law,
proceedings may started against it for the breach of an international obligation
owned to another party.
IS INTERNATIONAL LAW A MERE POSITIVE MORALITY?
In order to know whether international law is a mere positive morality, it is
necessary first to know what is a rule of morality and then, what is the
difference between a rule of morality and a rule of law. Oppenheim has aptly
6
Other points of difference are:
 Public International Law, for its major part, deals with states and to a lesser extent deals
with the individuals. Private International Law deals with the individuals.
 Private International Law is a part of Municipal Law but so is not always the case with
Public International Law. Only customary rules of International Law are considered to
be a part of domestic law of the state.
 Public International Law is same for all the states whereas Private International Law
may be different in different states.
 Private International Law determines as to which law will apply in a case having a
foreign element. There is no such problem in the field of public international law. Public
International Law is confronted with different type of problems whenever there is a
conflict between it and the internal law of the state.
 Private International Law also determines the court which will have jurisdiction to
decide the issue in question. In this respect it also differs from Public International Law.
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remarked that, “A rule of morality if by common consent of the community

it applies to conscience and to conscience only, whereas on the hand, a rule
is a rule of law, if by common consent of the community it will eventually be
enforced by external power. Thus a rule of morality is a rule which applies to
conscience only and cannot be enforced by external power. There is now
binding agreement about the binding nature of international law whereas a
rule of morality is not binding. International morality or ethics has been
defined “as standards of right behaviour that are based on the influence and
development of international law. If International law were only kind of
morality, the framers of state papers concerning foreign policy would throw
all their weight on moral arguments.
Weaknesses of international law:
International law is said to be a weak law. The weaknesses of international
law become evident when we compare it with municipal law. There are many
weaknesses of international law.7 It is pertinent to mention that international
law is constantly developing and its scope is expanding. It is a dynamic
concept for it always endeavours to adopt itself to the needs of the day. Its
survival and efficiency are due to its changing and adaptable character. All
states consider themselves sovereign. It is really credible that the rules of
International Law are considered binding upon the states because either
7
Weaknesses of International Law are:
 The greatest shortcoming of international law is that it lacks an effective executive
authority to enforce its rules.
 It lacks an effective legislative machinery.
 The International Court of Justice lacks compulsory jurisdiction in the true sense of the
term.
 Due to lack of effective sanctions, rules of international law are frequently violated.
 The enforcement machinery of international law is weak.
 A great limitation of international law is that it cannot intervene in the matters which
are within the domestic jurisdiction of states.
 As compared to rules of state law, the rules of international law suffer from great
uncertainty
 International law has, in many cases, failed to maintain order and peace in the world.
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through treaties or otherwise states have considered to surrender a part of their

sovereignties.
Basis of international law:
After having arrived at the conclusion that International Law is Law in the
true sense of the term, it is necessary to see what the true basis of International
Law is. There are two theories in this connection:
1. Law of Nature Theory- The jurists who adhere to this theory, are of the view
that international law is a part of law of nature. In their view, states follow
International Law, because it is a part of the law of nature. In order to
understand this theory it is necessary to understand the meaning of ‘Law of
Nature.’ Law of Nature was originally connected with religion. It was
regarded as divine law. The jurists of 16th and 17th centuries secularised the
concept of Law of Nature. Much of the credit goes to the eminent jurist
Grotius. He expounded the secularised concept of law of nature. According
to him, natural law is the dictate of right reason. According to him, natural
law was the dictate of right reason. His followers applied the law of nature as
an ideal law which was founded on the nature of man as a reasonable being.
International law was considered binding because it was in fact, natural law
applied in special circumstances
Criticism- The exponents of natural law are of the view that it is the basis of
international law and has conferred binding force on international law. It may,
however, be noted that each follower of the law of nature gives its different
meaning. Different jurist give it a different meaning such as reason, justice,
utility, general interest of international community. Hence the meaning of the
law of nature is very vague and uncertain.
2. Positivism- It is based on law positivum that is which is in fact as contrasted
with law which ought to be. According to the positivists, law enacted by
appropriate legislative authority is binding. The positivists based their views
on the actual practice of the states. In their view, treaties and customs are the
main sources of International law. The positivists view was in vogue in the
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18th century. Bynker-Shoek, one of the chief exponents of the Positivist

School, wrote several books to popularise his views. In the view of the
positivists, in the ultimate analysis, will of states is the main source of
international law. As pointed out by Starke, “International Law can in logic
be reduced to a system of rules depending for their validity only on the fact
that states have consented to them. As pointed out by Brierley, “The doctrine
of positivism teaches that international law is the sum of rules by which states
have consented to be bound and nothing can be law to which they have not
consented to be bound.” According to the positivists, international law is a
body of rules which has been consented to by the states and accepted as
binding by the way of voluntary restriction or ‘auto-limitation.’ The Italian
jurist, Anzilotti, one of the chief exponents of the Positivist School deserves
a special mention. According to him, the binding force of international law is
founded on a supreme principle or norm known, as pacta sunt servanda. In
his view the basis of each rule of International Law is pacta sunt servanda in
some or the other way. The positivists admit that their view fails to explain
the basis of customary international law. In their view, there is an implied
consent in regard to customary rules of international law.
Influence and Contribution of the Theory- Positivism is based on the actual
practice of the states. it emphasis that only those rules are the rules of
international law which have been adopted by states and are observed in
actual practice. Another special feature of this theory is that it has encouraged
realistic outlook in international law, the International Court of Justice has
adopted the positivist attitude.
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Theories on the basis of international law

There are some theories on the basis of International Law. These are:
Theory of Consent8, Auto-Limitation Theory9, Pacta Sunt Servanda10 and
Theory of Fundamental Rights.11 These theories to a considerable extent
satisfy basis of international law.
History of international law
International law as we find today is a product of the experience of the
civilized countries of the world and the continuous growth of many centuries.
According to Professor Oppenheim, “International Law is in its origin
essentially a product of Christian civilization and began gradually to grow
from the second half of the Middle Ages.” The claim of the European scholars
that the credit of giving birth to International Law as we know today, goes to
the European scholars is not correct. The claim of Western Jurists,
8
Theory of Consent- In the view of the supporters of this theory, consent of states is the basis
of international law. States observe rules of international law because they have given their
consent for it. Positivists have given much support to this view. The chief exponents of this
theory are Anzilotti, Triepel and Oppenheim. This theory fails to explain the basis of
customary international law. In the view of the supporters of this theory, states are bound to
observe customary rules of international law, because they have given their implied consent
for their acceptance. This theory has been subjected to severe criticism by many jurists, such
as, Starke, Brierly, Kelsen, and Fenwick.
9
Auto-Limitation Theory- According to this theory, international law is binding upon states
because they have restricted their powers through the process of auto-limitation and have
agreed to abide by international law. This theory is also based on the view of positivists. This
theory lays great stress on independence and sovereignty of the states. The basis of this theory
of that each state has a will which is completely independent and free from external
influences. Through the process of auto-limitation, state can restrict its powers and thereby
limit its will. In short states are not bound to follow international law because they are
independent and sovereign but the states can make themselves bound by the rules of
international law by restricting its powers.
10
Pacta Sunt Servanda- The binding force of international law is based on the supreme
fundamental norm or principle, known as pacta sunt servanda. This means that agreement
entered into by states will be respected and followed by them in good faith. This is well
established and recognised custom of international law. According to Anzilotti, the norm is
the foundation of the binding force of international law. Like positivism, the principle of
Pacta Sunt Servanda is also based on the actual practice of states. It emphasise the importance
of the agreement entered into by states and regards them as the basis of international law.
11
Theory of Fundamental Rights- The theory is based on the naturalistic view point.
According to this view-point, prior to the existence of state, man used to live in natural state
and even in that state he possessed some fundamental rights, such as, independence, equality,
right to self-preservation.
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Oppenheim and others that International Law originated in Europe and is the
creation of Western civilization is falsified by a study of the original texts of
the “Ramayana” and “Mahabharata.” It leads us nowhere to hold that modern
international law is three or four centuries old. Such an attitude is not only too
legalistic, but is clearly disapproved by the present practice which do take
account of history. In India too there can be found in the work of Kautilya in
the fourth century B.C. elaborate rules for the conduct of diplomacy, as a
means of avoiding conflicts and the reception and treatment of diplomats. A
study of the Ramayana reveals that in the Ramayana period relations of the
sovereign rulers were based on the definite rules of International Law and
these rules were recognised by all sovereign rulers.
Although it is true that international law had attained a sufficient stage of
development in ancient India, yet it must be conceded that it is a definite
branch of jurisprudence, the system which we know as international law is
modern, dating from the 16th and 17th centuries, for its special character has
been determined by that of the modern European State system, which was
itself shaped in the ferment of renaissance and the reformation.
So far as the origin of International law is concerned, almost all the civilised
states have made their contributions in its development. In this connection the
contribution of Jews, Romans, Greeks, Hindus and Muslims deserves a
special mention.12
12
Contribution of Jews, Greeks, Romans, Hindus and Muslims:
 Jews- A study of ancient history reveals that the Jews had relations with other countries.
Their relations with other countries were regulated and governed by certain rules. The
famous slogan of Jews “Love the stranger for you were strangers in the land of Egypt.”
It is clear from this slogan that they believed in internationalism. But since they believed
in monism in respect of religion, they did not treat those nations on the basis of equality
which believed in dualism or plurality of gods. The Jews strictly followed the treaties
entered into by them with other countries and conferred privileges and immunities upon
the diplomatic envoys. Thus the Jews made some contribution in the development of
international law in the ancient period.
 Greeks- The Greek civilization was quite advanced and the Greeks had achieved great
advancements in different fields. Socrates, Plato, Aristotle and other philosophers of
Greece enlightened the world through their ideas and philosophies. Greeks lived in
small-city states. The mutual relations of these states were regulated and governed by
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some definite rules and principles. They had formulated definite laws of war and peace.
They used to resolve their dispute through arbitration. Prior declaration was made
before the commencement of war. There was also a provision for the exchange of
prisoners of war but there custom of ransom for the release of some types of prisoners.
The Greeks had formulated many laws relating to war. Therefore, it has been rightly
remarked by Oppenheim that the Greeks had shown to the world, how sovereign states
could live in mutual co-operation with each other like a single community.
 Romans- Romans contributed much to the development of International Law. In the
early period, Rome was a small city-state and relations with other states. These
relations were based on the rules of international law. Subsequently the Roman
Empire greatly expanded yet the Romans always considered themselves bound by
laws and rules on the basis of laws. Romans deserve the credit of developing the
laws of war. According to them there were two types of war ‘just and unjust.’ The
romans strictly adhered to the provision of the treaty and in their view prior
intimation was necessary for termination of treaties. Thus the Romans made
significant contribution in the development of International Law the position of
Roman law in Europe in 16th century has important bearing on the beginning of
International Law.
 Hindus- Some of the rules of International Law were quite a developed stage in
ancient India. A thorough study of the Ramayana, Mahabharata, Manusmriti, and
Kautilya’s Arthashastra will justify the truthfulness of this statement. We learn from
the study of Balmiki Ramayana that the relations between sovereigns in the age of
the Ramayana were governed by a code of conduct based on the principles which
were recognised and observed by all the sovereigns; they were rarely violated and
any attempt by an individual sovereign to violate them was condemned by the
sovereign’s own counsellors. These very principles are the foundation of modern
International Law. Bhagvat Gita which is regarded a pious religious textbook by
Hindus, has not only classified just and unjust wars but has also made a vivid
discussion of them. A study of Bhagvat Gita also reveals that the declaration of war
before its commencement was essential. The duties of the state in the administrative
and external matters have been vividly discussed in Kautilya’s Arthashastra.
According to Kautilya, just and unjust means could be used in the wars. The study
of the Ramayana and Mahabharata reveals that during that period diplomatic agents
enjoyed many privileges and immunities. For example, in Ramayana Hanuman who
went as a messenger to the court of Ravana may be cited, where Vibishan tells
Ravana not attack Hanuman as he is an envoy. Therefore from Ramayana this very
principle- “the inviolability of the person of the envoy is affirmed and enforced on
several occasions- sometimes even against the wishes of sovereign who fit of anger
wanted to slay the envoy for having delivered the rude ultimatum on behalf of his
sovereign.” International Law relating to diplomatic agents was in its developed
stage, Manu had propounded many principles and rules in his code, popularly
known as Manu’s code. In his view, wars could be either just or unjust. According
to him, to fight and die in a just war was good deed indeed. In the view of Manu,
deceit or poisonous weapons were prohibited in war. To kill wounded or sick
soldiers in war was contrary to the rules of war. There were also definite rules
relating to the treatment of prisoners of war. Thus, international law was in a
developed stage in India. This it may be rightly concluded that Hindus contributed
much to the development of International Law.
Muslims- The Muslim rulers of India had relations with other nations. They received the
ambassadors of the other states and entered into treaties with them. They had formulated
some rules which governed relations with Muslim states. The Muslim rulers recognised the
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Development of international law in 16th and 17th centuries:

As pointed out by Brierly “International law as a definite branch of
jurisprudence, the system of which we know as International Law is modern,
dating only from 16th and 17th centuries, for its special character has been
determined by that of modern European State System, which was itself
shaped in the ferment of the Renaissance and Reformation.” He has,
therefore, rightly added that, “some understanding of the main features of
International Law.” The Middle Ages witnessed many obstacles were
Feudalism and the other strong centralised governments. The two main such
obstacles were Feudalism and the Church. Feudalism was a formidable
obstacle to the growth of the national state. The other strong influence which
retarded the growth of state in the Middle Ages was the Church. However,
rapid changes were taking place. Political developments were leading to the
separateness and irresponsibility of every state. According to Brierly, the
impetus to commerce and the new route to indies, the common intellectual
background fostered by the renaissance, the sympathy felt by co-religionists
in different states of one another, from which arose a loyalty transcending the
boundaries of state, the common feeling of revulsion against war, caused by
the savagery with which the wars of religions were waged are certain counter-
factors leading to intimate and constant relations of states with one another.
All these causes co-operated to make it certain that the separate state could
never be accepted as the final and perfect form of human association and that
in the modern as in the medieval world it would be necessary to recognise the
existence of a wider unity. The rise of the International Law was the
recognition of this truth.
Development of international law in 19th and 20th centuries:
distinction between combatants and non-combatants and had formulated rules for according
protection to women and children during war. They observed their treaties in good faith.
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Many factors led to the development of International Law in 19th and 20th
centuries. The relation of the state and their mutual contracts had greatly
increased during the said period and many rules and principles were
formulated on the basis of the practice of states and the needs and
requirements of the changing times and circumstances. The factors are:
 Congress of Vienna, 1815- The Congress of Vienna, 1815, was a landmark
event for the development of International Law. It was the first important
European Conference where many rules of International Law were
formulated. For example rules relating to international rivers, classification
of diplomatic agents.
 Declaration of Paris, 1856- The Declaration of Paris was a law- making treaty
in which many rules relating to naval warfare were laid down. It was laid
down that enemy ships could be sunk or otherwise destroyed during war but
before doing so, precautions should be taken to save the life of the crew of
the ship.
 Geneva Convention, 1864- Many rules relating to the wounded and sick
members of the armed forces during land warfare were laid down in Geneva
Convention of 1864. Killing of wounded soldiers was prohibited and rules
were made for providing certain facilities to them.
 Hague Conferences of 1899 and 1907- It resulted in the adoption of several
conventions on various subjects of International concern. These conferences
emphasized the settlement of international disputes through peaceful means.
Many rules of International Law relating to land warfare and naval warfare
were formulated. Bombardment over undefended people was declared illegal.
Endeavour was also made to determine the limits of armaments and achieve
disarmament. Another contribution of Hague Conferences was the
establishment of the Permanent Court of Arbitration. It was a landmark event
in the history of the development of International Law. Therefore, it
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contributed much in the attainment of the objective of International Law to

settle international disputes through peaceful means.
 The League of Nations- After the first world war, the nations of the world felt
the need of an international organisation which might be able not only to
regulate amicably the mutual relations among the nations but could also
prevent future wars. The League of Nations, for the first time, imposed certain
upon the nations right to resort war at their will. The Covenant of the League
of Nations provided, that before resorting to war, they would first settle their
disputes through arbitration, judicial settlement or enquiry by council. The
establishment of the League of Nations the development of International
organisations by law-making treaties and the conclusion of law- making
treaties through International Organisations.
 Treaty of Locarno of 1925- France, Britain, Germany and Italy etc. concluded
the Treaty of Locarno whereby Germany, France and Belgium undertook the
obligation of not using force in the settlement of their boundary disputes. The
parties to the treaty also expressed their resolve to settle their disputes through
peaceful means.
 Kellog- Briand or Paris Pact of 1928- This pact was a landmark in so far as
the parties to it renounced war as an instrument of their national policy for the
settlement of international disputes. It was very significant International event
for regulation over war.
 Geneva Convention, 1929- This convention was signed by 47 states of the
world. Many rules relating to the treatment of prisoners of war were laid down
in this convention. Reprisal against prisoners of war, cruelty towards them
and collective penalties against them were prohibited. Rules were also
formulated for providing medical and other to the prisoners of war.
 Second World War- Almost all the above mentioned rules of International
Law were flagrantly violated during the Second World War which turned into
a ‘total war.’ It however, sowed the seeds of a future world organisation
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because the devastating effects and hair-splitting experiences of the war once
more compelled the nations of the world to make attempts afresh to establish
and establish rule of law in the International field. It was the consequence of
the Second World War indirectly led to the eventual establishment of the
United Nations.
Schools of international law
 Natural Law School- Naturalists were those writers who were of the view that
Law of Nations is only a part the Law of Nature. The origin of natural law
can be traced back before the birth of Christ. Probably no other principle or
school of law took as much time in its development as the law of nature.
Moreover, as aptly remarked by Dias: “no other firmament of legal or
political theory is so bejewelled with stars as that of ‘Natural Law’ for it has
engaged the attention of some of the greatest thinkers of all ages.” They deny
that there is any positive Law of Nations. In their view, states obey
International Law which is nothing but Law of Nature which is higher law.
 Grotian School- The Grotian School has some features. The main features of
Grotian tradition have been explained and summarised by Lauterpact.13
13
The main features of Grotian School are:
 The subjection of totality of International relation to the rule of law- The central
theme and the main characteristic of Grotians treaties that Grotius conceives of the
totality of the relations between states as governed by law.
 The acceptance of the Law of Nature as an independent source of international law-
According to Grotius, law which was binding upon states is not solely the product
of their express will. He advocated and emphasized the Law of Nature as an
independent source of international law. By securing the concept of law of nature,
Grotius enhanced authority and dignity by making it an integral part of International
Law.
 The affirmation of social nature of man as the basis of law of nature- According to
Grotius, the social nature of man was the basis of the law of nature. He defined
natural law as the dictate of right reason, indicating that an act, from its agreement
or disagreement with the relation and social nature of man has in its moral turpitude
or moral necessity and consequently that such an act is either forbidden or
commanded by God, the author of nature.
 Recognition of states and individual- At the end of the 19th century, Westlake
observed: “The society of states is the most comprehensive form of society among
men, but it is among men that it exists. States are its immediate men ultimate
members. The duties and rights are only the duties and rights of men who compose
them.
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 Positivist School of Law- The positivists believe in law postivum that is law
which is fact and is binding. They emphasize law which is in fact as distinct
from law which ought to be, the chief characteristic of Law of Nature. Applied
to international law, positivists defend the existence of a positive Law of
Nations as the outcome of custom or international treaties.
 The so-called Anglo-American and Continental Schools of thought in
International Law- Some writers have expressed the view that there exist in
international Law two different schools of thought, the Anglo-American and
the continental, Lord Hailsham, the then Lord Chancellor, Professor Pearce
Higgins, Sir John Fischer Williams and Professor Brierly subscribed to this
view which became prevalent in some countries, particularly, England and
America. The writers who subscribed to this view in fact based their view on
the difference between the Anglo-American and continental practice in
respect of certain specific matters to the Law of Peace.
Sources of international law
 The rejection of the reason of state- Yet another characteristic feature of Grotius
teaching was his denial of the ‘reason of state’ as a basic and decisive factor of
International relations.
 Distinction between just and unjust wars- Grotius denied the states of the absolute right
of war for he emphasized the distinction between just and unjust wars. According to
him, a just war is one which is fought for a just cause. It need not be overemphasized
here that Grotius deserves full credit for emphasizing this distinction between just and
unjust war which was later on further developed under the Covenant of League of
Nations, the Pact of Paris of 1928 and finally, the charter of the United Nations.
 The doctrine of qualified Neutrality- The distinction between just and unjust war led
Grotius to enunciate the doctrine of qualified neutrality. According to Grotius, “It is the
duty of those who keep out of war to do nothing whereby he supports a wicked cause
may be rendered more powerful, or where by the movements of him who wages an
unjust war may be hampered.”
 The idea of peace- Though he did not deny the right of the state to wage war, he
advocated the idea of peace and proposed various methods for the settlement of disputes
such as negotiation and arbitration.
 The Fundamental Rights and Freedoms of the individual- Grotius must be given some
share on the development of the concept of fundamental rights and freedoms of the
individual. He advocated the right of the individual to refuse to carry arms in an unjust
war and championed his claims such as right of expatriation, the rights of economic
freedom, right to have plebiscite for transfer of part of national territory.
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The term ‘source’ refers to methods or procedure by which international law

is created. A distinction is made between the formal sources and material
sources of law. They may be described as direct and indirect, proximate or
immediate and remote or ultimate. Material sources may also be described
the “origins” of law while the material, historical or indirect sources represent
the stuff out of which the law is made, that is to say, they go to the form the
content of law, the formal, legal and direct sources consist of the acts or facts
whereby this content is clothed with legal validity and obligatory force. The
sources of international law, on the other hand, concern the particular rules
which constitute the system and the processes by which the rules become
identifiable as rules of law.
The sources of International Law may be classified into different categories:
 International Conventions
In the modern period, international treaties are the most important source of
international law. This is because the reason, inter alia, that states have found
in this source a deliberate method by which to create binding international
law. As pointed out by Manely O. Hudson, the term ‘conventions’ is used in
a general and inclusive sense. It would seem to apply to any may be general,
either because of the number of parties to it, or because of the character of the
contents; it may be particular because of the limited number of parties to it or
because of the character of the contents it may be particular because of limited
number of parties or because of the limited character of the subject matter.
Whenever, an International Tribunal decides an international dispute then its
first endeavour is to find out whether there is an international treaty on this
point.
 Customs
Customs have been regarded as one of the prominent sources of international
law for a long time. It “is the oldest and the original source, of international
law as well as of law in general.” It is only in modern period that the
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importance of customs suffered a setback. Customary rules of International

law are the rules which have been developed in a long process of historical
development. In order to understand the meaning of ‘custom’, it is necessary
to know the meaning of the word ‘usage.’ The word ‘custom’ and ‘usage’ are
synonymous. It is not necessary that usage should always precede a custom.
It is also not necessary that a usage must always become a custom. In certain
cases a usage may become a custom, in certain other cases it may not become.
 General Principles of Law Recognised by Civilised Nations
In the modern period, it has become an important source. It “constitutes an
important landmark in the history of international law in as much as the state
parties to the statute did expressly recognise the existence of the third source
of international law independent of custom or treaty. This source helps
international law to adapt itself in accordance with the changing times and
circumstances. By general principles of law recognized by civilized states we
mean those principles which have been recognised by all states.it also
includes ‘those rules or standards which we find repeated in much the same
form in the developed systems of law, either because they have a common
origin, as in Roman law, or because they express a necessary response to
certain basic needs of human association. Examples are: the rule of pacta sunt
servanda, that contracts must be kept; the principle that reparation must be
made for damage caused by fault; the right of self-defence for the individual
against attack on his person or family and the community against clear and
present danger.
 Decisions of Judicial or Arbitral Tribunals and Jurist Works
In the modern period International Court of Justice is the main International
Judicial Tribunal. It was established as a successor of the Permanent Court of
International Justice. It may, however, be noted that the decision of the
International Court of Justice does not create a binding general rule of
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international law. In the view of some jurists the decisions of International

Arbitral Tribunals cannot be treated as a source of international law.
Although jurist’s works cannot be treated as an independent source of
international law, yet the view of the jurists may help in the development of
law. The views are not the direct sources of international law. But they
sometimes become instrumental in the development of international customs.
 Decisions or Determinations of the Organs of International Institutions
Before the establishment of League of Nations, International Customs and
International Conventions were recognized as the main source of
International Law. In addition to these main sources, juristic works and
decisions of judicial and arbitral tribunals were regarded as subsidiary means
for determination of the rules of law. The evolution of International
Organisation represents a significant stage in the history and development of
international law. International Organisations in its wider sense, is the process
of organising complexity of international relations. In fact after the
establishment of U.N. most of the development of international law and its
codification has taken place through the instrumentality of International
Organisations.
Some Other Sources of International Law:
 International Comity- The mutual relations of nations are based on the
principle of comity. In other words, when a state behaves in a particular way
with other states, the latter have also to behave in the same way. According
to Professor Oppenheim, international comity has helped in the development
of international law.
 State Paper- In the modern period almost all civilized states have diplomatic
relations with each other. They send letters to each other for mutual interests.
These letters are sometimes published. A study of these letters sometimes
reveals that certain principles are repeatedly followed by states in their mutual
intercourse. Sometimes these state papers help in solution of a conflict of
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controversy. “Occasionally an international controversy clears up a disputed

legal point or advances the application of principles that have before received
little more than otiose assent.
 State Guidance for Their Officers- It is mostly seen that a number of matters
of the governments of respective States are resolved on the advice of their
legal advisers. These advices are also, therefore, sometimes treated as source
of international law.
 Reason- By reason, we mean the judicial reason through which the principles
are discovered to face the new situations which are considered valid by the
jurists. When there is no treaty or particular rule of international law to resolve
any question, the court applies judicial reason.
 Equity and Justice- Equity is used here in the sense of considerations of
fairness, reasonableness and policy often necessary for the sensible
application of settled rules of law. The principles of equity and justice make
their contribution in the international law-making and in the codification and
development of International law. Equity as a legal concept is a direct
emanation of the idea of justice. Although they are not exactly the sources of
justice, they play an important role in the international law-making and in the
codification and progressive development of international law.
Need for universal international law

In order to cope with the manifold changes that have taken place and are
taking place, the need is to evolve a “Universal International Law”, a
relatively new phrase which has come into vogue in the last few years
probably as a result of more intensely perceived ideological division in the
world, the insistence on a common set of values as a pre-condition for a viable
legal order, and, more recently, the challenge to the traditional body of
doctrine and precept emanating from new states in Asia and Africa. In order
to ensure dynamism in international law and to make it universal certain new
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concepts such as “transnational law”, “common law of mankind” , “world

order”, and “world law” have to be put forward. The new international law
should be not strictly juridical; it also takes into account political, economic,
social and psychological factors.
Conclusion
International Law is essential to guard the nations of the world. The law is a
necessity to maintain peace and tranquillity around the world. The subject of
International Law teaches us how to establish and maintain cordial relations
with other nations. The subject is important because it had marked the
beginning of uniform legislation around the world. Moreover, it has covered
all important topics which timely need to be discussed. Therefore, it is
necessary to understand the growing importance of International Law. Hence,
the subject is important because it confers rights and capacity and imposes
duties and responsibility.
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OBSCENITY LAWS IN INDIA

Tanya Arora 1
Sonakshi Singh 2
Introduction
Freedom of Speech and Expression is one of the basic rights that a human
being acquires on their birth. Through this right, every person has the liberty
to express themselves and to convey their thoughts, speech and feelings.
"Everyone has the right to freedom of opinion and expression; the right
includes freedom to hold opinions without interference and to seek and
receive and impart information and ideas through any media and regardless
of frontiers" proclaims the Universal Declaration of Human Rights (1948).3
Thus, the spirit of this fundamental right, which has been guaranteed to us in
Part III of the Constitution, is the ability to speak, think and express freely
and to be able to obtain information from others through publications without
the fear of having to face any unreasonable punishment or penalty, limitations
or control.
Man, as a rational being has desires and in order to continue living in a civil
society, these desires and wishes are put under limitations and restrictions.
These constraints are important as they serve the interest of the public and are
enforced for their welfare only. Thus, Article 19(2) specifies certain
reasonable restrictions that are imposed on the right to freedom of speech and
expression.
With the growing modern technologies and progress in the scientific sector,
it has become easier to communicate and circulate information around the
world; which has led to renewal of interest in the laws relating to obscenity
1
Student of 3rd year, B.B.A., LL.B (Hons.), Amity Law School, Amity University, Uttar
Pradesh. The author can be reached at tanya2198@gmail.com
2
Student of 3rdyear, B.B.A. LL.B (Hons.).Amity Law School, Amity University, Uttar
Pradesh.
The author can be reached at sonakshi.singh1598@gmail.com
3
https://www.lawteacher.net/free-law-essays/constitutional-law/freedom-of-speech-and-
expression-constitutional-law-essay.php (visited on 11th June, 2018)
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in India. In order to strike a balance between individual liberty and public

good, various steps are taken by the Indian government, at both the national
and state level.
What is obscenity?
Obscenity under Indian law is defined as:
 Anything that has a primary appeal to anything lustful or voyeuristic.

 Any work that shows or outlines sexual conduct in clearly an offensive
way.
In legal terms, ‘obscenity’ can be defined as an indecent expression which

could be displayed through words, actions or gestures. The concept of
obscenity is usually considered synonymous with pornography and thus, the
word ‘obscene’ is used interchangeably with the word ‘porn’. Pornography
was derived from the Greek word ‘porne’ which meant harlot and ‘graphy’
which translates to writing. On the other hand, the current definition of
‘obscene’, however vague it is considered to be, is based on the Miller Test
(explained later in this paper) and needs to fail all the three aspects mentioned
in that test to be considered obscene.
Obscenity in India is defined as "offensive to modesty or decency; lewd, filthy

and repulsive."4 In Indian Law, the terms decency and morality are also
connected and understood in relation to obscenity. Decency means ‘avoiding
the use of obscene language and gestures’. However, the expression decency
does not limit itself to sexual morality alone, but also makes sure that the
actions are in accordance with the standards of the civil society. Decency can
be understood as the accepted codes of maintenance of public and private
decorum and morals. Indecent exposure and indecent publication are also
treated as criminal offences under the common law. Even though words like
4
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2057442 (visited on 11th June, 2018)
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vulgar and indecent are used as a substitute for obscene, these terms are
different from one another.
1. Vulgarity and obscenity
Vulgarity is said to arise a feeling of disgust, aversion and detestation in

someone but does not deprave or degrade someone’s moral while obscenity
is more inclined towards corrupting or contaminating the minds which are
open to such immoral influence. Thus, a vulgar writing is not the same as
obscene in every case.
2. Indecency and obscenity
As highlighted by the English court, both indecency and obscenity are

offences against the set standards of civility, yet there is a difference of degree
between these two. The term indecent is of a smaller scale while obscenity is
of a higher scale and thus, anything that is obscene must necessarily be
indecent yet the vice-versa does not hold true in every case. Indecent merely
means something that is not in agreement with the standards of our society
whereas obscene is something having a lewd behaviour.
Obscenity Under Indian Penal Code,1860
Offences related to obscenity are covered under Section 292 of Indian Penal
Code, 1860. This section is said to be in conflict with the individual’s right to
freedom of speech and expression as it is often misused and manipulated into
restricting a citizen from exercising their right to freedom of expression. To
prevent such misuse and to restrain it from becoming a trouble to public
interest, Article 19(2) outlines certain restrictions to the right to freedom of
speech and expression.
Section 292 states that “(1) For the purposes of sub-section (2), a book,
pamphlet, paper, writing, drawing, painting, representation, figure or any
other object, shall be deemed to be obscene if it is lascivious or appeals to the
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prurient interest or if its effect, or (where it comprises two or more distinct

items) the effect of any one of its items, is, if taken as a whole, such as to tend
to deprave and corrupt person, who are likely, having regard to all relevant
circumstances, to read, see or hear the matter contained or embodied in it.”5
According to Section 293, a punishment of 2 years or fine up to Rs.2000 is

prescribed to anyone who is guilty of promoting obscenity, through selling,
possessing, hiring, distributing, importing, exporting, making profits from
business or purchasing an obscene material. However, any work which is
found to be of public interest, such as work associated to literature, science,
history or religious cause do not fall under the ambit of section 292.6Section
293 talks about obscenity through acts and songs.7
‘Obscenity’ is a complex and an intricate term which is hard to understand.

In order to save and uphold democracy, the courts laid down principles which
determine whether the said work comes under the ambit of section 292 or not,
as there is a thin line between an individual expressing his own views and
depraving or corrupting the minds of others.
Obscenity, media and the freedom of expression
5
https://indiankanoon.org/doc/1704109/(visited on 12th June, 2018)
6
293. Sale, etc., of obscene objects to young person.—Whoever sells, lets to hire, distributes,
exhibits or circulates to any person under the age of twenty years any such obscene object as
is referred to in the last preceding section, or offers or attempts so to do, shall be punished
2[on first conviction with imprisonment of either description for a term which may extend to
three years, and with fine which may extend to two thousand rupees, and, in the event of a
second or subsequent conviction, with imprisonment of either description for a term which
may extend to seven years, and also with fine which may extend to five thousand rupees
7
294. Obscene acts and songs.—Whoever, to the annoyance of others—
(a) does any obscene act in any public place, or
(b) sings, recites or utters any obscene song, ballad or words, in or near any public place,
shall be punished with imprisonment of either description for a term which may extend to
three months, or with fine, or with both.
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Background
India is one of the world’s largest democracies of the world. The culture of
mass media came to India in the former half of the 18th Century with print,
movie screening and radio broadcasting making its entry in the 1780s. The
media has always maintained its individuality post-independence, barring the
time when emergency was imposed over India in 1975. But difference in the
opinions related to what is communicated, circulated or published by the
media has existed since time immemorial. There have been circumstances
where people form an opinion that some materials are against the cultural
values of the society and then such materials are placed within the bracket of
‘obscenity’. Events from the immediate past have shown how writers, actors
and painters face prosecution on the charges of propagating the alleged
obscene materials.
While according to some there is a need to shield our society from such
obscene materials, the recent events suggest that there may be a possibility
that the gaps in the laws related to obscenity in India have led to adoption of
a series of actions that are of arbitrary nature and the satisfaction provided is
of subjective nature. With the growth of mass media over the last few decades,
it is of the utmost importance to have a clear vision of what forms a prohibited
act. Situations have changed manifold with television and internet becoming
another platform for artists to express their views along with literary work,
paintings and films which has resulted in attempts to define, objectify and
removal of what is obscene through various statutory provisions.
Statutory provisions
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Section 292 - 294 of the Indian Penal Code, 1860 prohibits publication and
selling of obscene papers, pamphlets, books and obscene songs and acts but
indecent representation of women does not fall under the ambit of the said
sections. Sometimes women are portrayed in very derogatory, indecent and
obscene way, as some play object or an object of lust which leads to
victimization of women in the society and corruption in the mind of viewers.
Hence, in order to outlaw the indecent depiction of women, through
publications, paintings, advertisements, etc. the Indecent Representation of
Women (Prohibition) Act, 1986 was introduced.
Section 2(c) of the Act elucidates what comprises indecent representation of

women.8
Section 3 of the Act states that no person should be directly or indirectly

involved in publishing advertisements that contain indecent representation of
women in any form.9
Section 4 of the Act prohibits publication or circulation of books, papers, etc.

which contains anything that portrays women in an indecent way.10
8
2. Definitions.—In this Act, unless the context otherwise requires,— (a) “advertisement”
includes any notice, circular, label, wrapper or other document and also includes any visible
representation made by means of any light, sound, smoke or gas; (b) “distribution” includes
distribution by way of samples whether free or otherwise; (c) “indecent representation of
women” means the depiction in any manner of the figure of a woman, her form or body or
any part thereof in such a way as to have the effect of being indecent, or derogatory to, or
denigrating, women, or is likely to deprave, corrupt or injure the public morality or morals;
(d) “label” means any written, marked, stamped, printed or graphic matter, affixed to, or
appearing upon, any package; (e) “package” includes a box, carton, tin or other container; (f)
“prescribed” means prescribed by rules made under this Act.
9
3. Prohibition of advertisements containing indecent representation of women.—No person
shall publish, or cause to be published, or arrange or take part in the publication or exhibition
of, any advertisement which contains indecent representation of women in any form.
10
4. Prohibition of publication or sending by post of books, pamphlets, etc., containing
indecent representation of women.—No person shall produce or cause to be produced, sell,
let to hire, distribute, circulate or send by post any book, pamphlet, paper, slide, film, writing,
drawing, painting, photograph, representation or figure which contains indecent
representation of women in any form.
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Cable Television Networks (Regulation) Act, 1995 tends to control the

telecast of those programs which can cause an outrage in our society by
offending the already set standards and outlines a punishment with
imprisonment and fine. Rule 6(1)(o) of the Cable Television Networks Rules,
1994, which is read with Section 5 of this Act, restricts the carrying out of
programs that seem unfit for “unrestricted public exhibition”, which is
specified under Section 5-A.11
Cinematograph Act, 1952specifies the provisions for regulation and

certification for showcase of cinematograph films. Section 4 of the Act states
the rules for examination of films while Section 5-A address the issue of
certification of films. Section 4 of the Act read with Section 5-A of Cable
Television Networks Act details the provisions for examination and
certification of cinematograph films by the Board of Film Certification
(CFBC).12
The Young Persons (Harmful Publication) Act, 1956 restricts publication

of such matter which might corrupt or adulterate a child or a young person’
mind or incite them into committing crimes of violence, cruelty, etc. A
punishment with imprisonment and fine is prescribed to anyone who does
anything that is in contravention to the provisions of the said Act.13
The Information Technology Act, 2000 prohibits the publication and

transmission of any material in electronic form which is of lascivious nature
or has an appeal of lewd interests. Any publication or transmission that has
an effect which leads to degradationor corruption of those who have read,
seen or heard the said matter that is embodied or contained in it, is an offence
punishable with imprisonment and fine.14
11
Cable Television Networks (Regulation) Act, 1995 ( Act 7 of 1995)
12
Cinematograph Act, 1952 ( Act 37 of 1952)
13
The Young Persons (Harmful Publication) Act, 1956 (Act 93 of 1956)
14
The Information Technology Act, 2000 (Act 21 of 2000)
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To control the telecast of advertisements on television, the Advertising

Standards Council of India was established by the government in 1985
(ASCI). ASCI was formed to protect the interest of the consumers by self-
regulating the advertisements. Its main objective is to encourage responsible
advertising so as to regain public’s trust in advertising. The Self Regulating
Code contains one of the fundamental principles as: “To ensure that
advertisements are not offensive to generally accepted standards of public
decency. Advertisements should contain nothing indecent, vulgar or repulsive
which is likely, in the light of generally prevailing standards of decency and
propriety, to cause grave or widespread offence.”15
Who defines obscenity in India?
While the Indian courts have tried their best to keep a balance between the
reasonable restrictions imposed on the public and their right to express, their
records are found uneven. Cases have been filed on various occasions to limit
reasonable expression in India. While advertisements like Amul Macho
(2007) which starred Sana Khan, who was shown washing a man’s underwear
while ‘ye toh bada toing hai’ music playing in the background, Tuff Shoes
Footwear Print Ad (1995)which had Milind Soman and Madhu Sapre, who
were posing nude with a python wrapped around them and Fastrack TV
Commercial (2011) that showed Genelia D’Souza and Virat Kholi making
love in an airplane’s cockpit were deemed unfit for viewing as they were
challenging conservative Indian sensibilities.
The problem with Indian judicial system is that it is inefficient and lacks
jurisprudential consistency. Even though the right to freedom of speech and
expression is guaranteed by our Constitution, it can be easily silenced due to
the presence of overbroad laws. India’s legal system remains overworked and
overwhelmed, which leads to long and expensive delays. These delays
15
https://www.legalindia.com/obscenity-in-the-media/ (visited on 17th June,2018)
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discourage the innocent and the victims to fight for their own rights. There
have been cases where the Indian government has failed to protect
criminalizing of individuals, who are expressing their minority views. Such
individuals are often targeted by local officials or attacked by extremist
groups. Rather than focusing on the aforesaid issues, the government tends to
focus more on banning certain books, films or works of art that offend certain
groups of people. These unreasonable restrictions are then justified citing the
importance of public order and under the shade of violent protests and
communal violence.
Cases and illustrations
Cases:
The Supreme Court has held that there can be no one uniform or standard test
which can be applied to judge whether the content is obscene or not. Each
case is to be dealt with considering the particular facts and circumstances.
In the case of Ranjit. D.Udeshi Vs State of Maharashtra16, the Supreme

Court applied the English ‘Hicklin test’, which was laid down in R vs.
Hicklin17to test the obscenity of the matter. In this case, the court upheld the
conviction of the appellant, a book seller, who was prosecuted under Section
292 of Indian Penal Code, 1860, for selling and keeping the book, “The Lady
Chatterley’s Lover”. As per the application of the above named test, the book
was held to be obscene.18
In another matter of K.A Abbas Vs The Union of India19, a film was

contended to be objectionable. The movie depicted the contrasting lives of
the urban and the poor people. Some part of the film dealt with the life of the
16
1965 AIR 881, 1965 SCR (1) 65
17
LR 3 QB 360
18
Dr. J.N Pandey, Constitutional Law of India, 223 (Central Law Agency, Allahabad, 54 th
Edition, 2017)
19
MANU/SC/0053/1970
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prostitutes of Bombay. The Censor Board rejected the petition of granting ‘U’
certificate to the movie. When the Petitioner approached the Central
Government (Appellate Authority) for the same, it agreed to grant ‘U’
certificate subject to a condition that certain scenes, specifically the
prostitution part to be removed. Thereafter, the Petitioner moved the Supreme
Court under Article 32 for violation of his fundamental rights. The judgment
given had many references to the American Jurisprudence on obscenity. It
was observed by the court that “Sex and obscenity are not always
synonymous and it is wrong to classify sex as essentially obscene or even
indecent or immoral”. It was further observed that the standard for judging
obscenity must not be that of the least capable and most depraved one.
A popular Bengali writer was prosecuted under Section 292 of Indian penal
Code, 1860 in the case of Samaresh Bose Vs Amal Mitra20. He had written
and published a novel under the caption ‘Prajapati’ in a Bengali journal.
However, the Supreme Court had set aside the conviction on appeal. The
court reasoned its decision by saying that when a question of obscenity arises,
the Judge should firstly place himself in the position of the writer of the
disputed content and understand his/her viewpoint. He must understand the
literary and artistic value of the content and must try to make sense of what
the writer wants to convey through his/her work. Then secondly, the Judge
should understand the situation from the viewpoint of the readers of every age
that has access to the content and should try to discern the influence that the
content might have on the minds of the readers.
The banning of the movie – ‘Bandit Queen’ by the Delhi High Court in the
case of Bobby Art International v. Om Pal Singh Hoon21 is another
example. This judgement was challenged in the Supreme Court. An expert
Tribunal, consisting of 3 female members rendered a decision giving ‘A’
20
AIR 1986 SC 967
21
AIR 1996 SC 1846.
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certificate to the movie, clearly showing their opinion that women are not be
degraded, insulted or shown as a medium to depict pornography. The movie
was based on the life of a woman named Phoolan Devi, who was married to
a man elder than her own father. The film centred on how she became a leader
of a dangerous dacoit gang, killing 20 Thakurs in Madhya Pradesh for taking
the revenge of her humiliation and plight that she had faced being married.
She was made to strip naked and fetch water, while all the villagers watched
her. This humiliation turned into revenge and rage, which made her a
dangerous dacoit. The movie could not have done justice to the story without
depicting nudity to enhance the humiliation faced by the protagonist. The
nudity was not shown in the movie to arouse lust amongst the viewers, but to
condemn the perpetrators who had done nothing to stop it from happening.
However, the decision of the court is a proof of intolerance for such bitter
truths in our country.
In the case of Maqbool Fida Hussain Vs. Raj Kumar Pandey22, several
complaints were filed against a painting by M.F Hussain, which depicted a
nude lady in grief. The painting was included as an item in a charity auction
for the victims of Kashmir earthquake under the name ‘Bharat Mata’. M.F
Hussain had no role in the auction, however, he still apologised for hurting
the feelings of the people. The issue in this case was whether the said painting
was obscene which meant that Mr. M.F Hussain was liable to be prosecuted
under Section 292 of the Indian Penal Code, 1860 or not. The court held that
prima facie there was nothing in the painting either to arouse sexual or
prurient interest in the perverted people or to morally corrupt a person
viewing it. The court said that nudity alone cannot be said to be obscene. It
was observed that the aesthetic touch of the painting overshadows its nudity.
Hence, the judgment was in favour of M.F Hussain.
22
Crl. Revision Petition No. 114/2007
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In Ajay Goswami vs. Union of India23, a petition was filed to seek protection
from the Court to ensure that minors are not exposed to sexually exploitative
materials, whether or not the same was obscene and prohibited by law. Where
art and obscenity are related, the test must be such that it measures the artistic,
literary or social merit against its obscenity and then makes a decision. The
test of judging a work must be that of an ordinary man of common sense and
prudence and not an out of the ordinary or hypersensitive man. The blanket
ban on publication of obscene materials or article in order to shield juvenile
innocence cannot be imposed. No news item should be viewed in isolation.
Publication must be judged as a whole. Fictitious imagination of anybody,
especially of minors, should not be agitated in a Court of law. However, the
Court suggested the Press Council to amend provisions of the Act.24
Aveek Sarkar vs. State of West Bengal25was the landmark case where the
Supreme Court abandoned the age old ‘Hicklin test’ and adopted the
‘Community Standard test’ to determine obscenity. In this case, the material
of which the obscenity was to be judged was a picture of a nude/semi-nude
woman. It was held that the picture cannot by itself be held as obscene if it
does not have the tendency to arouse feeling or revealing an overt sexual
desire. The picture should not be suggestive of deprave mind and designed to
excite sexual passion in persons who are likely to see it. Only such sexual
materials will be held to be obscene if they have the capacity to of producing
lascivious thoughts, however, the obscenity is to be judged from the point of
view of an ordinary man of prudence. On the basis of ‘community standard
test’, the Court held the breast of Barbara Fultus fully covered with the arm
of Boris Becker, a photograph of course semi-nude had no tendency to
23
AIR 2007 SC 493
24
Dr. J.N Pandey, Constitutional Law of India, 208 (Central Law Agency, Allahabad, 54 th
Edition, 2017)
25
(2014) 4 SCC 257
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deprave and corrupt the minds of people in whose hands the newspaper or
magazine would fall.26
From the above cases, it is clear that the judiciary has not taken a unanimous
stand on the subject of defining obscenity. The position, therefore, remain
unclear till today.
Illustrations:
Kiss of Love Campaign: Youth activists had launched this campaign in 2014
to practice public kissing and to stand against moral policing in Kerala.
However, an hour later they had received right-wing threats and havoc was
created by conservative groups. But, the social media was flooding with
support for the campaign. Many other cities followed, except Bangalore. The
State Home Minister gave the police the power to deal with the protest as they
like, therefore, the campaign organisers had to canceltheir plan for Bangalore.
Aishwarya Rai Controversy: Aishwarya Rai Bachchan had recently

uploaded a photo on instagram of her kissing her daughter, Aradhya on her
lips during Cannes festival, 2018. This photo had been trolled by Indian
people online, who criticised it for being indecent. According to them, a
mother kissing her daughter on her lips is against morals and deeply
appalling.
Comparison with laws of other countries
American law:
The U.S Supreme Court in the landmark case of Miller vs. California27 laid
down the following guidelines for ‘the community standard test’:
26
Dr. J.N Pandey, Constitutional Law of India, 223-224 (Central Law Agency, Allahabad,
54th Edition, 2017)
27
413 U.S. 15 (1973)
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1. A person, having contemporary community standard does not believe

that the work appeals to the prurient interest;
2. If the work is patently offensive;
3. If the work, in its entirety, lacks any literary, scientific, artistic or
political value.28
This test is also known as the ‘Miller Test’. However, this test has now proven
to be inadequate as it fails to keep pace with the realities of modern
technology.
English Law:
The United Kingdom had enacted the Obscene Publications Act, 1857, which
gave origin to the ‘Hicklin test’. This test was used both in U.K and
U.S,however, it was rejected by the U.S Supreme Court in 1957.
The ‘Hicklin test’ laid focus on the vulnerability of those, who are exposed to
the given materials. The method of testing obscenity under this is to see
whether the tendency of the matter alleged to be obscene is to deprave and
corrupt those whose minds are open to such immoral influences.
The murder of Jane Longhurst by Graham Coutts led to the changes in the
U.K Obscenity laws. The jury had held that Coutts strangled Jane for his own
sexual satisfaction. It was found out that before and after killing Jane, Coutts
had spent hours watching violent videos of nude women being strangled,
suffocated, hanged and drowned. Therefore, initially everyone targeted the
websites for showing such violent pornography. All this menace led up to the
adoption of Criminal Justice and Immigration Act, 2008. This new Act differs
from the previous act of 1857 on two grounds. Firstly, the new Act has shifted
28
William T Goldberg, TWO NATIONS, ONE WEB: COMPARATIVE LEGAL
APPROACHES TO PORNOGRAPHIC OBSCENITY BY THE UNITED STATES AND
THE UNITED KINGDOM, available at: http://www.bu.edu/law/journals-
archive/bulr/documents/goldberg_000.pdf (Visited on June 11, 2018)
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the focus from the production and publication of obscene materials to

individual possession, thereby, making it an offence of a person in possession
of extreme pornographic materials. Secondly, the new Act extensively
defines the meaning of “extreme pornographic materials”, and hence clears
the ambiguity of the Act of 1857. In short, it defines “extreme pornographic
materials” as such which has been made only for the purpose of arousing the
sexual feelings of a person.29
Conclusion
As per the analysis done through this paper, it is seen that the Hicklin Test
has been watered down by the Supreme Court by introducing new
qualifications and exceptions to it. However, the laws related to obscenity are
still overbroad, vague and ambiguous leaving enough gaps for the judges to
bring in their own personal convictions while judging what is obscene and
what is not. The dangers attached to having such wide discretions can be seen
through the cases discussed and their judgements, which were a reflection of
political agendas and personal convictions. The words ‘in the interest of
public order’ used it Article 19 of the Constitution include things that are can
lead to disorder as well as things that have the tendency to cause disorder,
where the word ‘tendency’ creates uncertainty in relation to the nature of the
matter being judged. With so much emphasis being put on protecting the
minds of the readers, no importance is given to the creator of the material in
question. Even though the ‘Hicklin test’ and the ‘Miller test’ have survived
the passage of time, it is imperative that the Indian Judiciary finds better and
fixed alternatives, in order to provide justice to the citizens of India.
29
William T Goldberg, TWO NATIONS, ONE WEB: COMPARATIVE LEGAL
APPROACHES TO PORNOGRAPHIC OBSCENITY BY THE UNITED STATES AND
THE UNITED KINGDOM, available at: http://www.bu.edu/law/journals-
archive/bulr/documents/goldberg_000.pdf (Visited on June 14, 2018)
Legal Messenger
ENVIRONMENT AND PUBLIC HEALTH
Krishankant Sharma 1
Prabhat Tiwari
Introduction
Environment and public health are indispensable elements of our society,

each are joint and severally linked with each other . Environment which
includes the every elements of human survival from beginning of his life to
end of his life. With the growth of human life cycle the dependence on
environment increase, man starting depending on environment for food water
clothes medicine and other day to day requirements. With the passage of time
man modified hisenvironment according to his desire and need, he modified
it into his own interest. In recent we can see that from the changes of using
pattern of soil to rapid industrialisation man modified his environment. But
in all this process he forgets that there will be some results of his act in future
, he has to pay for his sins in future .with this modification he deteriorate the
environment health which ultimately results indetoriation of public health .
Our environment
Environment as the word signifies environment is something which surrounds
us , it includes every physical , chemical and biological elements . everyone
knows the beauty of flowers , the whistle of birds , the roar of tiger , the
vastness of desert , the magnificence of mountain and droplets of rain , all this
combined to formed the surrounding of man which he knows his environment
.
Different inviduals have different views about environment , they present

their views according to what they feels about it , how it affects them , why
1
BALLB 2ND SEMESTER , JAGARN LAKECITY UNIVERSITY, BHOPAL M.P.
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it is important for them . widely there are various definition recognised by our
society which says what is environment.
In the medical science, the environment include surrounding conditions,

influences’ that affect an organism2 ………..Davis
INTEARNATIONAL epidemiological, association as all that which is

external to human host3.
The word environment is derived from the French word ‘environ’ which
means ‘surrounding’ Scholar definition.
Environment detoriation historical view
The detoriation of environment is not new to nation , not new to this world,
from the very beginning of society formation the man started to use resources
present in the environment , they use the services which are present in this
environment. The history of India reveals many such incidents where man has
taken many steps towards the detoration of environment. One of the instance
can be seen as On the 27th of March 1973 — exactly 40 years ago —where a
group of peasants in a remote Himalayan village stopped a group of loggers
from felling a patch of trees. Thus was born the Chipko movement, and
through it the modern Indian environmental movement itself4.
The first thing to remember about Chipko is that it was not unique. It was
representative of a wide spectrum of natural resource conflicts in the 1970s
and 1980s — conflicts over forests, fish, and pasture; conflicts about the siting
of large dams; conflicts about the social and environmental impacts of
unregulated mining. In all these cases, the pressures of urban and industrial
2
Charles Michel ,The Medical And Survivours, 7 LIFE. 77, 74 (1944).
3
Steave Thomas,International Epidemiological Review,GLMC.10(1998).
4
RamchandraGuha, The Past & Present of Indian Enviornmentalism ,THE HINDU,27MAR,
2013, at 13.
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development had deprived local communities of access to the resources

necessary to their own livelihood. Peasants saw their forests being diverted
by the state for commercial exploitation; pastoralists saw their grazing
grounds taken over by factories and engineering colleges; artisanal fisher folk
saw themselves being squeezed out by large trawlers.
Back in the 1970s, when the state occupied the commanding heights of the
economy, and India was close to the Soviet Union, the activists ofChipko and
other such movements were dismissed by their critics as agents of Western
imperialism. They had, it was alleged, been funded and promoted by
foreigners who hoped to keep India backward. Slowly, however, the sheer
persistence of these protests forced the state into making some concessions.
However In the 1980s and 1990s, the finest minds in the environmental
movement sought to marry science with sustainability. They sought to design,
and implement, forest, energy, water and transport policies that would
augment economic productivity and human welfare without causing
environmental stress. They acted in the knowledge that, unlike the West, India
did not have colonies whose resources it could draw upon in its own industrial
revolution.
In 1928, 45 years before the birth of the Chipko movement, Mahatma Gandhi
had said: “God forbid that India should ever take to industrialisation after the
manner of the West. The economic imperialism of a single tiny island
kingdom (England) is today keeping the world in chains. If an entire nation
of 300 million took to similar economic exploitation, it would strip the world
bare like locusts5.”
In all this incidences we can draw the conclusion that all the above matter
5
RamchandraGuha, The Past & Present of Indian Enviornmentalism ,THE HINDU,27MAR,
2013, at 13.
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signal towards the detoriation of environment , this detoriation is not as in

pace as it is today but we can see that the foundation of this journey begins in
early 16th and 17th century.
Glance at human health deterioration
The environment affects our health in a variety of ways. The interaction

between human health and the environment has been extensively studied and
environmental risks have been proven to significantly impact human health,
either directly by exposing people to harmful agents, or indirectly, by
disrupting life-sustaining ecosystems.
Ever since people have utilised natural resources, environmental quality has
started to deteriorate. The increasing incidences of air pollution, water
pollution, land and soil pollution, solid and hazardous waste pollution,
deforestation, soil erosion, silting and flooding are examples of
environmental quality deterioration. The deteriorating quality of the
environment slowly, but steadily, poses a threat to human security.
There always seem to be intermediaries connecting the change in the

ecosystem and human health. For example, such environmental changes as
climate change, land degradation and aquifer depletion seriously affect
agricultural production. Agricultural production is a major determinant of
nutritional status and population health. Hence, human health is affected by
producing or consuming agricultural products and not directly by land
degradation or aquifer depletion. However, there are some environmental
changes that directly affect the quality of human health, such as a rise in
temperature, which causes thermal stresses, respiratory problems and
deterioration of aquatic ecosystems leading to waterborne diseases. Other
health impacts of the ecosystem degradation may be exacerbated by changes
in other systems and processes, such as proliferation of bacteria, distribution
of vector organisms or quality and availability of water supplies. The
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significant changes in health conditions and emergence of new diseases

require understanding and are calling for new solutions in implementation of
environmental health policies.
Although the exact contribution of environmental factors to the development

of death and disease cannot be precisely determined, the World Health
Organization (WHO) has estimated that thirteen million deaths annually are
attributable to preventable environmental causes6. The report also estimates
that 24% of the global disease burden (healthy life years lost) and 23% of all
deaths (premature mortality) are attributable to environmental factors, with
the environmental burden of diseases being 15 times higher in developing
countries than in developed countries, due to differences in exposure to
environmental risks and access to health care.
For countries in the early stages of development the major environmental

hazards to health are associated with widespread poverty and severe lack of
public infrastructure, such as access to drinking water, sanitation, and lack of
health care as well as emerging problems of industrial pollution. However,
environmental health hazards are not limited to the developing world.
Although at a lesser extent, environmental risks are also present in wealthier
countries and are primarily attributed to urban air and water pollution.
Occurrences of Asthma are rising dramatically throughout the developed
countries, and environmental factors appear to be at least partly to blame .
The Millennium Ecosystem Assessment synthesis report warns that the
erosion of ecosystems could lead to an increase in existing diseases such as
malaria and cholera, as well as a rising risk of new diseases emerging.
Every minute, five children in developing countries die from malaria or

diarrhoea. Every hour, 100 children die as a result of exposure to indoor
smoke from solid fuels. Every day, nearly 1,800 people in developing cities
6
World Health Organization ,Report on Human Enviornment Sustainability , 2013 ,01-03.
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die as a result of exposure to urban air pollution. Every month, nearly 19,000
people in developing countries die from unintentional poisonings7.
Both human health and the environment are under greater pressure than ever
before. Up to one-third of the 25,000 child deaths that occur every day are
due to dangers present in the environments where children live. Environment
related illnesses kill the equivalent of a jumbo jet full of children every 30
minutes. This is a tragedy of immense dimensions, yet there is far less focus
on the problem than it deserves. And it is the poor who bear the main burden.
While the challenges are greater than ever, we now have the ability more than
ever before to secure good health for every individual and community.
Analysis at global level
The aggregate human impact on the environment now exceeds the limits
ofAbsorption or regeneration of various major biophysical systems, at global
and regional levels. The resultant global environmental changes include
alteredatmospheric composition, widespread land degradation, depletion of
fisheries,freshwater shortages, and biodiversity losses
Overall, these large-scale environmental changes are likely to increasethe
range and seasonally of various (especially vector-borne) infectiousdiseases,
food insecurity, of water stress, and of population displacement withits
various adverse health consequences8.
The aggregate environmental impact of humankind has begun to change some
of the world's great biophysical systems.
Such large-scale systemic environmental change is unprecedented inhuman
history. It includes worldwide loss of biodiversity, land degradation
(including deforestation and desertification), depletion of fisheries, declines
7
Martin PH, Lefebvre MG. Malaria and climate: Sensitivity of Malaria Potential
Transmission To
Climate.Ambio1995 ,24: 200-7.
8
Rotmans J. IMAGE - An Integrated Model to Assess the Greenhouse Effect. Dordrecht:
Kluwer Publishers, 1990
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in majorfreshwater aquifers on every continent, and global dispersion of

nonbiodegradable chemical pollutants.Further, we are altering the
composition of the lower atmosphere and stratosphere. According
toclimatologists, the former has begun to cause global climate
change;meanwhile, the latter is increasing the amount of UV irradiation at
theEarth's surface9.
Analogue situations are most likely to come from current or recenttimes. For
example, there have been several recent studies of the regionalhealth
consequences of unusual climatic episodes and trends. Markedincreases in
the incidence and range of malaria were observed during anatypically hot and
wet year in Rwanda in 198710. Malaria has beenmoving to higher altitudes in
the Eastern African highlands inassociation with local warming. Certain
palaeo-ecological studieshave also been useful, for example in relating
ancient changes in worldtemperature to changes in the taxonomic profile and
geographic range of insects, including those able to act as infectious disease
vectors.
The El Nino Southern Oscillation (ENSO) allows analogue studies of
the likely health impacts of anticipated future increases in climate
variability. ENSO - which comprises quasi-periodic reversals in themassive
flow of warm surface water and air across the Pacific - is a majordeterminant
of interannual climate variability around the low-midlatitude world11.
However, the analogy is limited in that ENSO-relatedclimatic changes occur
more rapidly and with greater fluctuations thanwould occur under the
9
McMichael AJ, Haines A. Global climate change: The Potential Effects on Health. BMJ
1997;
315: 805-9.
10
UN Commission on Sustainable Development. Critical Trends: Global Change and
Sustainable
Development. New York, NY: United Nations, 1997
11
Ropelewski CF, Halpert MS. Global and regional scale precipitation patterns associated
with
the El Nino/Southern Oscillation. Monthly Weather Rev 1987; 115: 1606-26
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projected conditions of global climate change.ENSO-related temperature and

rainfall fluctuations have been shown toaffect substantially the occurrence of
malaria outbreaks in north-eastPakistan and Sri Lanka. Approximately
quinquennial cycles ofsssmalaria in Colombia12 correlate with ENSO
fluctuations.several infectious disease.
Future prospects for advancement of our environment
In the past, we had a great tradition of environmental conservation which
taught us to respect nature and to take cognizance of the fact that all forms of
life - human, animal and plant - are closely interlined and that disturbance in
one gives rise to an imbalance in other's.
Even in modem times, as is evident in our constitutionalprovisions and
environmental legislation and planning objectives, conscious efforts have
been made for maintaining environmental security along with developmental
advances.
The Indian Constitution has laid a new important trail in the Section on
Directive Principles of State Policy by assigning the duties for the State and
all citizens through article 48 A and article 51 A(g) which state that the "State
shall endeavour to protect and improve the environment and to safeguard the
forests and wildlife in the country" and "to protect and improve the natural
environment including forests, lakes and rivers and wildlife, and to have
compassion for the living creatures"
The National Conservation Strategy and the Policy Statement on
Environment
and Development are in response to the need for laying down the guidelines
that will help to weave environmental considerations into the fabric of our
national life and of our development process. It is an expression of our
commitment for reorienting policies and action in unison with the
12
Ropelewski CF, Halpert MS. Global and regional scale precipitation patterns associated
with
the El Nino/Southern Oscillation. Monthly Weather Rev 1987; 115: 1606-26
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environmental perspective.
In recognition of the felt need for environmental protection, various
regulatory and promotional measures have been taken in our country over the
past twenty years.
These include the following
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 The Wildlife (Protection) Act, 1972, amended in 1983, 1986 and 1991.
 The Water (Prevention and Control of Pollution) Act, 1974, amended in
1988.
 The Water'(Prevention and Control of Pollution) Cess, Act, 1977,
amended in 1991.
 The Forest (Conservation) Act, 1980, amended in 1988.
 The Air (Prevention and Control of Pollution) Act, 1981, amended in
1988.
 The Environment (Protection) Act, 1986.
 The Motor Vehicle Act, 1938, amended in 1988.
 The Public Liability Insurance Act, 1991.
 A Notification on Coastal Regulation Zone, 1991.
Institutions
 Department of Environment in 1980 and the integrated Ministry of

Environment & Forests in 1985,
 Department of Science and Technology,
 Department of Agriculture and Cooperation,
 Department of Biotechnology,
 Department of Ocean Development,
 Department of Space,
 Department of Non-Conventional Energy Sources,
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 Energy Management Centre,

 Council of Scientific and Industrial Research etc.
 at the Centre,
 Departments of Environment at the State and UnionTerritory level.
 Central Pollution Control Board and State Pollution Control Boards.
 Central Forestry Board.
 Indian Council of Forestry Research and Education with specialized
institutionsfor research in and zone, forestry, moist and deciduous
forests, wood technology,genetics and tree breeding and deciduous
forests.
 Forest Survey of India (FSI) and the Wildlife Institute of India (VAI) in
addition to theexisting organizations like Botanical Survey of India (BSI)
and Zoological Surveyof India (ZSI).
 Central Forestry Board.
 Indian Council of Forestry Research and Education with specialized
institutionsfor research in and zone, forestry, moist and deciduous
forests, wood technology,genetics and tree breeding and deciduous
forests.
 Forest Survey of India (FSI) and the Wildlife Institute of India (VAI) in
addition to theexisting organizations like Botanical Survey of India (BSI)
and Zoological Surveyof India (ZSI).
 National Land-use and Wasteland Development Council.
 National Wastelands Development Board.
 Indian Board of Wildlife.
 National Museum of Natural History, Centre for Environmental
Education, Institutefor Himalayan Environment and Development and
Centres of Excellence inspecialized subject areas are among the various
institutions set up.
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Environmental Impact Assessment
 Establishment of procedures for environmental impact assessment

andclearance with regard to selected types of projects requiring approval
of theGovernment of India.
 Prior clearance of projects requiring diversion of forests for non- forest
purposeunder the Forest (Conservation) Act 1980
 Formulation of Environmental guidelines for projects in various sectors.
Conservation of Forests and Wildlife
 Adoption of a new Forest Policy (1988) with the principal aim of

ensuring ecological balance through conservation of biological diversity,
soil and watermanagement, increase of tree cover, meeting the
requirements of the rural andtribal population, increase in the
productivity, efficient utilization of forest produce,substitution of wood
and people's involvement for achieving these objectives.
 Under the Forest (Conservation) Act, 1980 stringent provisions for
preventingdiversion of forest land for any other purpose.
 Setting up of the National Wastelands Board to guide and oversee
thewastelands development programme by adopting a mission approach
for enlistingpeople's participation, harnessing the inputs of science and
technology andachieving interdisciplinary coordination in programme
planning andimplementation.
 Formulation of a National Wildlife Action Plan.
 An exercise for preparation of a National Forestry Action Programme.
 Establishment of National Parks and Sanctuaries covering about 4% of
thecountry's area.
 Eco-development plans for sanctuaries and National Parks.
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 Identification of bio -geographical zones in the country for establishing

a network ofprotected areas including seven Biosphere Reserves set up
so far.
 Management Plans for identified wetlands, mangrove areas and coral
reefs.
 Formulation of a National River Action Plan
Prevention and Control of Pollution
 Water and air quality monitoring stations in selected areas.

 Use-based zoning and classification of major rivers.
 Notification and enforcement of standards for polluting industries
through theCentral and State Pollution Control Boards.
 Rules for manufacture, storage, transportation and disposal of
hazardoussubstances.
 On-site and off-site emergency plans for preparedness against
chemicalaccidents.
 Fiscal incentives for installation of pollution control devices.
 Ganga Action Plan to prevent pollution of the river and restore its water
qualitywhich could be expanded to cover other major river systems
subject toavailability of resources.
 Identification of critically polluted areas and of highly polluting
industries.
Other Activities
 Eco-Task Forces of ex-servicemen for ecological restoration
throughafforestation and soil conservation.
 National Environmental Awareness Campaigns for creating
environmental awareness through non-governmental organizations.
 Surveys and research studies.
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 Training programmes, workshops and seminars for building up

professionalcompetence and for creation of awareness.
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IMPLEMENTATION OF WOMEN’S RIGHTS: A SOCIO-

LEGAL DILEMMA
Bhavana Chandramani Dhoundiyal 1
"Unless governments fix their laws on rape and sexual assault and implement
them effectively and sensitively, we are unlikely to see an end to the worldwide
abuse of women and girls anytime soon".
-Yasmeen Hassan Global Executive Director

Equality Now
This is not the first time that a question has posed before us with a dire need
to discuss something related to the implementation of Women’s rights. Such
is the situation that even after 70 years of independence we have reached a
stage where we have to keenly think about the mechanisms of enforcing these
rights. However, the worst part is that they themselves have not accepted their
own status as it should be. “They”, the women.
The paper categorically focuses on the socio-legal dilemmas. The laws exist.
The remedies exist. Our beautiful enactments over the years are so ornamental
in nature that the women’s rights can never look ugly. The discussion here
creates a thirst for awareness. The very first question that arises is has the
legislative body failed in framing the best laws for its most empowering
citizen? To the best knowledge this paper has, there is no such book that
would guide a women about her rights, perhaps someone who is not even a
literate, can barely dream about the word, “RIGHT”. Even if their rights are
violated, they will hardly go to courts and seek justice; rights have been
coined for women, although knowledge desires the same to reach the masses.
Bringing a short notice to the fact, the laws that exist in the Isle protect the
women only after the crime takes place, like the offences and punishments
1
Asst. Professor, K.R. Mangaalam University Gurugram.
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given. Nowhere have they prevented the crime. Once for instance, rape has
been committed, it confirms that all measures to stall violence have failed.
Reaction in the form of declaration of enhanced punishment is largely an
expression of helplessness and frustration. The emphasis should be on
prevention and rehabilitation.
The Best Laws in Question
The Indian judicial system, being the world's largest, has many laws to serve
this purpose. Unfortunately, the legal system is failing in protecting women
and girls from violence and sexual abuse. Indian Society has always revered
women. In Hinduism, man and woman represent the two halves of the divine
body. There is no question of superiority or inferiority between them. Hindu
history is witness to the super-women, such as Gargi, Maitreyi and Sulabha,
whose faculty of reasoning was far superior to that of ordinary mortals. Many
female deities Saraswati, Durga, Laxmi, Kali etc., are worshipped across the
country. According to the Mahabharat by cherishing the woman one virtually
worships the goddess of prosperity2. Getting in to the deep grounds of history,
the status of Women in early Rig Vedic society was very high. In Later Vedic
period, the position that the women folk enjoyed in the early Vedic society,
was not retained. There after the Buddhist period saw many evil social
practices following the sati and purdah system; thereby re-iterating the low
status of women in the society. Globally, the feministic voice demanded
rights. After 1960, the Women’s Liberation Movement saw a steady pace
thereby demanding their reproductive rights. 1975 to 1985 was reported to be
the year of women. In the backdrop and revival of a ray of hope, the
Convention on Elimination of all forms of Discrimination against Women,
1979- defines what constitutes discrimination against women and sets up an
agenda for national action to end such discrimination. For the very first time
2
Sharma Indira, Violence Against Women: Where are the solutions?, 57(2) Indian J
Psychiatry,131–139 (2015)
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the “discrimination against women was defined”, in an international

instrument, it means, “any distinction, exclusion or restriction made on the
basis of sex which has the effect or purpose of impairing or nullifying the
recognition, enjoyment or exercise by women, irrespective of their marital
status, on a basis of equality of men and women, of human rights and
fundamental freedoms in the political, economic, social, cultural, civil or any
other field3”. Taking a note on the fact that an international document itself
mentions the word, “Social”, this ultimately aims at eradicating the
breathtaking discrimination on “Gender” in the depth of the society. Article
2 impresses a duty upon the state parties to embody the principles of equality
of men and women in their national constitutions or other appropriate
legislation, through law and other appropriate means, the practical realization
of this principle. Article 55 and 56 of United Nations charter cast a legal
obligation on United Nations organization to promote respect for equality and
human rights.
The Universal Declaration of Human Rights, article 5, states that no one shall
be subjected to torture or to cruel, inhuman or degrading treatment or
punishment4. There have been three United Nations world conferences on
women. One in Mexico in 1975, the second in Copenhagen in 1980, and the
third one in Nairobi, wherein strategies were framed to promote gender
equality and opportunities for women. These were based on three objectives:
Equality, development and peace. The Vienna Declaration, 19935 calls for
action to integrate the equal status human rights of women. It stresses toward
elimination of violence against women in public and private life. The Beijing
3
Article 1, Convention on Elimination of All forms of Discrimination against Women,
1979. http://www.ohchr.org/Documents/ProfessionalInterest/cedaw.pdf
4
Das PK, editor. Universal Handbook on Protection of Women from Domestic Violence
Acts and Rules.Delhi (India): Universal Law Book Publishing Co. Pvt Ltd; 1948. Universal
Declaration of Human Rights, (Relevant Provisions). Vide United Nations general
assembly resolution 17A (III), dated 10 th December, 1948; p. 253
5
Ibid.
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conference, 19956 or the Beijing Action Plan, provided a platform for

concentration on some of the key issues identified as fundamental obstacles
to the advancement of majority of women in the world. It focused on issues
such as discrimination against women, violence against women, etc. Article
253 of the India Constitution cordially implements the international
instrument and thereby the enactments re-instate the lost parallels of the
societal developments with education.
Domestic legal remedies in India
The Constitution of India: Article 14 is on equality. Difference in treatment

between men and women by the state is totally prohibited on grounds of
religion race, caste, sex or place of birth. Article 21 is on right to live; right
to live with human dignity.
The National Commission for Women: It was set up as a statutory body in

January 1992 under the National Commission for Women Act, 1990 to review
the constitutional and legal safeguards for women; recommend remedial
legislative measures, facilitate redress of grievances and advise the
Government on all policy matters affecting women.
The Supreme Court guidelines on sexual harassment at work place: For the
first time, the Court drew upon an international human rights law instrument,
the CEDAW to pass a set of guidelines. The Court defined sexual harassment
at work place as any unwelcome gesture, behavior, words or advances that
are sexual in nature. “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.”
6
New York: UN Department of Public Information; United Nations. The Beijing
Declaration and Platform for Action; p. 75.
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The legislation relating to violence against women comprises the Indian Penal
Code (IPC)7, civil law and special laws.
Dowry and dowry death: The Dowry Prohibition Act (DPA), 1961 8 applies
to all people, Hindus, Muslims, Christians, Parsis and Jews. Giving, taking or
abetting the giving or taking of dowry is an offence, which is punishable.
Several states (Bihar, West Bengal, Orissa, Haryana, Himachal Pradesh, and
Punjab) amended the DPA to give it more teeth. The law was found to fail to
stall the evil.
Where the death of a woman is caused by any burns or bodily injury or occurs
otherwise than under normal circumstances, within 7 years of marriage, and
if 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 of dowry, such death shall be called “dowry death” and such
husband or relative shall be deemed to have caused her death (IPC 304-B)9.
113-B Indian Evidence Act, 1872, was inserted for the presumption as to
dowry death.
Abetment of suicide of child or insane person: If any person under 18 years

of age, any insane person, any delirious person, any idiot, or any person in a
state of intoxication, commits suicide, whoever abets the commission of such
suicide, shall be punished with death or imprisonment for life or
imprisonment for a term not exceeding 10 years and shall also be liable for
fine (305 IPC)10. However, the difficulty is that if it is shown the victim has
major mental illness, the benefit of doubt is given to the accused and he is
acquitted.
7
Indian Penal Code (45 of 1860) as Amended by The Election Laws (Amendment) Act,
2003 (24 of 2003) with Classification of Offences and State Amendments, 1980
8
The Dowry Prohibition Act, 1961. (Act 28 of 1961)
9
Indian Penal Code (45 of 1860) as Amended by The Election Laws (Amendment) Act,
2003 (24 of 20003) with Classification of Offences and State Amendments, 1980
10
Ibid.
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Abetment of suicide: If any person commits suicide, whoever abets the

commission of such suicide shall be punished with imprisonment of either
description for a term which may extend to 10 years and shall also be liable
for fine (306 IPC)11. 113-A of Indian Evidence Act, 1872, relates to the
presumption as to abetment of suicide. The offences of dowry and abetment
of suicide are cognizable, non-bailable and non-compoundable.
Sexual offences: A man is said to have committed rape if he has sexual

intercourse with a woman against her will and consent; or with her consent
when the man knows that he is not her husband or when she thinks that he is
her lawful husband; or with her consent when she is of unsound mind or is
intoxicated by herself or the man. However, sexual intercourse by a man with
his own wife, the wife not being under 15 years, is not rape (375 IPC). The
latter provision seems deficient as it does not include marital rape.
Voluntarily having carnal intercourse against the order of nature with any
man, woman, or animal is an offence for which the person shall be imprisoned
for life and shall also be liable for fine. This provision is hardly used (377
IPC).
Of cruelty by husband and relatives of husband: The willful conduct of the

husband or his relative that is likely to drive the women to commit suicide or
cause physical or mental trauma to her or harassment of a woman with a view
to coercing her or any of her relative to meet any unlawful demand for
property would be punishable by imprisonment for 3 years and fine (498A
IPC). This is the most widely used provision against domestic violence.
 Other offences in mentioned in IPC are: Causing miscarriage (312 IPC),

causing miscarriage without woman's consent (313 IPC), death caused
by an act done with intent to cause miscarriage; if act was done without
11
Ibid.
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woman's consent (314 IPC), act done with intent to prevent child being
born alive or to cause it to die after birth (315 IPC) and causing death of
quick unborn child by act not amounting to culpable homicide (316 IPC).
 The Family Courts Act, 198412: The Act was established with a view to
promote conciliation in, and secure speedy settlement of disputes relating
to marriage and family affairs.
 The Indecent Representation of Women (Prohibition) Act, 198613: This

Act prohibits the indecent representation of women through
advertisements or in publications, writings, paintings, figures or in any
other manner is prohibited.
The Commission of Sati (prevention) Act, 198714: This Act is for the
prevention and glorification of sati.
Protection of Women from Domestic Violence Act, 200515: The Protection

of Women from Domestic Violence Act (PWDVA), 2005 was enacted to
provide for more effective protection of the rights of women guaranteed under
the constitution who are victims of violence of any kind occurring within the
family and for matters connected thereto. It recognizes 4 types of domestic
violence: Physical, verbal, and emotional (including not having a child or a
male child, marrying without consent), and economic (including violence
related to stridhan, dowry, property) and sexual (includes sexual abuse and
marital rape).
The aggrieved person (AP) is a woman who has been in a domestic

relationship with the respondent. The respondent is any adult male person
12
The Family Courts Act, 1984 (Act 66 of 1984); The Family Courts Amendment, 1991
(Act 59 of 1991).
13
The Indecent representation of Women (Prohibition) Act 1986.
14
The Commission of Sati (Prevention) Act, 1987. (Act 2 of 1988) Government of India.
Vide GSR 359 (E) 1988 Mar 21.
15
The Protection of Women from Domestic Violence Act, 2005.
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who is, or has been in a domestic relationship with the AP and against whom
the AP has sought relief. The AP or any person can complain directly (verbal),
telephonically or via E-mail. There is provision for various orders (protection,
residence, maintenance (monetary relief), custody orders and emergency
help. There is also provision for assistance (counselor, police, and assistance
for initiating criminal proceedings, shelter home, medical facilities, and legal
aid).
The PWDVA is good in many ways. It is friendly to even to poor and illiterate
women; it educates the woman regarding the rights and available assistance;
provides many reliefs (which facilitate psychosocial rehabilitation), free legal
advice and help to initiate legal proceedings against respondent; it attempts
to restore the family; and last, but not the least, it empowers the woman. The
main criticism against PWDVA is that mental illness in AP or respondent is
ignored. Apart from this, there are mixed reactions toward few legislations,
especially PWDVA, DPA and IPC 498A, because they have been frequently
abused and are considered as “anti-men.” On the other hand, domestic
violence at times, has been considered a personal affair between a husband
and wife, out of which the personal issues are never reported.
Awareness about the same
According to a 2013 global review of available data, 35 per cent of women

worldwide have experienced either physical and/or sexual intimate partner
violence or non-partner sexual violence. Cases of violence against women are
steadily increasing in the country. According to the National Crime Record
Bureau, India, there is one dowry death in the country every 78 h, one act of
sexual harassment every 59 min, one rape every 34 min, one act of torture
every 12 min and almost one in every three married women experienced
domestic violence Eliminating such violence globally requires intensive
efforts, which led world leaders to establish an online tool that increases
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opportunities to exchange experiences and strengthen knowledge to prevent

and stop violence against women. Men and women who have not had
opportunities to question gender roles, attitudes and beliefs, cannot change
them. Women who are unaware of their rights cannot claim them.
Governments and organizations without access to standards, guidelines and
tools cannot adequately address these issues. Once evidence accumulates and
awareness grows, the potential for stopping all forms of violence does too.
Awareness of women rights is the level of familiarization and acquaintance

of existing rights for women. Women rights are the rights that promote a
position of legal and social equality of women with men. Men and women are
two halves of the society and it has been rightly said that men makes houses
and women home. A large percentage of women are unaware of their rights
and they can’t do anything when their rights are denied. They bow down, and
submit. The only mean to literate women from this deplorable situation is to
educate them and make them understand their rights and privileges. This will
be possible only through giving education to our girl students and make them
aware of their rights. These girls will contribute their share to improve the
status of other girls and women of society as formal and non-formal agents of
education. Thus we can say that the future of women is in their own hands.
The Episode of Untold Inequalities
Independence and the era thereafter, considered women as minority being the
most vulnerable sex along with the weaker sections of the society. Thereby,
with Article 15 (3) they must have forecasted that in the near future, timely
requirement of the extension of rights of women at par with men, therefore,
state with the changing needs an aspiration of the people of india can make
special provisions for women and children.
These rights do serve a purpose; they signify that they are not just paper
backed letters printed on a text called “law”. They have a meaning, they are
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rights belonging to the second Gender of the society, and women themselves
have the potential to liberate themselves like in the 1960’s. The conundrums
behind the implementation of these rights are the social mind set of the
society. Either they don’t want the women to speak or go ahead of them, or
they just don’t want them to grow. However, this is not the case everywhere,
literate and educated families in our society do allow women to work late at
night, pursue her ambition, prefer the right age of education, motherhood and
create her own identity. Whereas, the situation is vice-a -versa in rural areas.
Not many girls, receive higher education, social barriers stop them. After
metric they are adults and burden, or to be more precise- a liability. Counting
on the great women be like Kiran Bedi, leading as a dignified officer in the
Indian Police Service or be it a single unmarried mother like Neena Gupta,
the challenges have never been unuttered. Social norms and family structure
in developing countries like India, manifests and perpetuate the subordinate
status of women. One of the norms is the continuing preference for a son over
the birth of a girl child which in present in almost all societies and
communities. The society is more biased in favour of male child in respect of
education, nutrition and other opportunities. The root cause of this type of
attitude lies in the belief that male child inherits the clan in India with an
exception of Meghalaya and other North- Eastern states, where the
Matriarchical society has totally liberalised women, and eliminated the male
chauvinism demeaning the plight of women like never before, also Women
often internalize the traditional concept of their role as natural thus inflicting
an injustice upon them. Poverty is the reality of life for the vast majority
women in India. It is another factor that poses challenge in realizing women’s
empowerment. The poor family status tends these females to enter the vicious
circles of employment on low wages to help their families. There are several
challenges that are plaguing the issues of women’s right in India. Targeting
these issues will directly benefit the empowerment of women in India
Education: While the country has grown from leaps and bounds since 1947
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where education is concerned. The gap between women and men is severe.
While 82.14% of adult men are educated, only 65.46% of adult women are
known to be literate in India. The gender bias is in higher education,
specialized professional trainings which hit women very hard in employment
and attaining top leadership in any field. Poverty: Poverty is considered the
greatest threat to peace in the world, and eradication of poverty should be a
national goal as important as the eradication of illiteracy. Due to this, women
are exploited as domestic helps. Most of them are often raped and their dead
bodies decay till the time they are reported. Health and Safety: The health and
safety concerns of women are paramount for the well being of a country and
are an important factor in gauging the empowerment of women in a country.
However there are alarming concerns where maternal healthcare is
concerned. Also, menstrual hygiene of women needs attention, as they remain
unaware about the most immediate use of sanitary napkins and the cancerous
diseases that spread. Professional Inequality: This inequality is practiced in
employment and promotions. Women face countless handicaps in male
customized and dominated environs in Government Offices and Private
enterprises. Also, there is an undefined structure of leave system, which is
often unreported to them. Low wages and higher qualification is the call of
these enterprises in the society today, as no male will work on low wages be
it from any address around the city. Also, females easily manage the work,
though less applauded for the same effort. Morality and Inequality: Due to
gender bias in health and nutrition there is unusually high mortality rate in
women reducing their population further especially in Asia, Africa and china.
Household Inequality: Household relations show gender bias in
infinitesimally small but significant manners all across the globe, more so, in
India e.g. sharing burden of housework, childcare and menial works by so
called division of work. Domestic responsibilities often force these women to
put their careers at halt.
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Conclusion
Violation and crime are the two brothers of the society; they crop up with
mental abilities and lack of sensitive attitude towards society itself. Putting it
in the most social form, property was the main reason behind the creation of
law. But the concepts never imagined that their title would be taken by a new
species. The very own second gender of the society. It comes as a surprise
that since the incarnation of society, crime against women and violation of
her rights, has never ceased. And the judicial body has to remind its citizens
time and again that yes, along with you even she is guarded in these laws and
co-jointly, society belongs to both man and women and the third gender. Be
it any kind of crime, violation of rights etc. Also, laws framed in our society;
do not have any compiled form for the protection of women, there is a
different set of enactment for every crime and sexual abuse.
Until 1908, there was no such thing as sex discrimination, because gender
based discrimination had not been recognized until the case of Reed v. Reed16,
wherein, as stated the test was not under the equal protection clause, but a test
based on the general powers of the state to protect the welfare of women when
it infringed on her fundamental right to negotiate contracts. In Muller v.
Oregon17, first time in the history of the world, the Supreme Court of United
States, quoted that, “Woman has always been dependent upon man in the
struggle for subsistence she is not an equal competitor with her brother, her
physical structure and proper discharge of her maternal functions justify
legislation to protect her from the greed as well as the passion of man”. The
ruling was criticized because it set a precedent to use sex differences, and in
particular women’s child bearing capacity, as a basis for separate legislation,
supporting the idea that the family has priority over women’s rights as
16
“Fourteenth Amendement to the United States Constitution”. (Feb., 03) (6:18 PM)
https://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution
17
Muller v. Oregon, 208 U.S. 412, 423 (1908)
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workers. A woman is not weak. She can stand on her own its true. But
somewhere, it is her own submissive nature that does not allow her to speak
for herself. Voice is a bigmouth expression, yet it needs a lot of endeavour to
put things into action. The French revolution is an example of the most
unforgotten event, where while creating laws for its citizens the French men
forgot the females while drafting the declaration of Rights of its Citizens and
thereafter, Olympe de gauges, revived the Declaration of rights of female
citizens. Likewise, the saga continues. It is not always the laws to be blamed;
it is the society as well. The thought process needs a big blow. The society
needs to have a liberal outlook towards her clothes, her job, her single and
unmarried status as well as her old age. And not be inflicted by statements
like, “Rapes take place also because of a woman’s clothes, her behaviour and
her presence at inappropriate places”. Post 1979, India has successfully
framed laws, there are amenities focusing on the health of women, there are
schemes and government initiation of various projects for maternity benefit
like Shishu Kalyan, ASHA, Jannani Suraksha Yojana, etc. but when it comes
to check and implementation, like the leaves wither away during winters, laws
wither away after every season they are made. Legislation by itself would
not suffice because violence against women is a deep rooted social problem.
It is worth quoting late Prime Minister, Jawaharlal Nehru, who remarked:
“Legislation cannot by itself normally solve deep rooted social problems. One
has to approach them in other ways too, but legislation is necessary and
essential and hence that it may give that push and have educative factors, as
well as the legal sanctions behind it, which help public opinion to be given a
certain shape18.”
Recently, Culture Machine in its Mumbai office, organisation initiated a First

day period off leave benefit for its female employees, the organization has 75
18
Nehru JL. Speaking from the floor of parliament in the joint sitting of both houses on
dowry prohibition bill, 1961 on May 6, 1961.
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women employees, who have given thumbs up to the Human Resources

department for the new policy. The company has also floated
a petition addressed to the Ministry of Human Resource Development and
Ministry of Women and Child Development, to apply the period leave policy
across India. What took this change- a call? No, the thought process of the
very own organization did. There is no shame in changing the outlook of the
society, but when we talk about society, it is huge, it is like generations
gathering together, there is nothing bad in being liberal, or becoming
moderately modern, it is just the effect of education. Socio legal dilemmas
are not so many; the liberation of society is the only solution. Counting on the
work of government, at present has gained a high applause due to its women
centric approaches and promoting women empowerment, post the time its
session commenced. On 2nd February, 2018, the Kerala Government
presented a Women Friendly budget 2018, saying, “it stand with her”, and
announced Rs 1,267 crore for projects related to women safety and
development. It sacked in the scale of 2011 census, illustrating the high end
action needed to improve Gender Justice in the society. The women are not
getting the dignity they deserve. While we lead in most sectors, we lack in
gender justice. But the women are getting ready to challenge the customs of
oppression and shaming. The fierce reaction from women against male
hegemony is visible even in the cinema sector. The budget promised support
to the advancement of women in the march to attain their dignity19. The
society has to come out of the curtailing veils of customs and look ahead, that
the new generations needs a different outlook towards them and their rights,
than essaying and portraying a raw hypocrite.
19
Chandrakanth Vishwanath, Kerala Budget 2018-19: With Women-friendly Budget,
Kerala Govt Stands 'With Her'
, BUDGET18 (Feb. 03, 2018, 18:35 PM), http://www.news18.com/news/india/kerala-
budget-2018-19-with-women-friendly-budget-kerala-govt-stands-with-her-1649023.html.
Legal Messenger
A society should always be dynamic; change is the rule of nature. In recent

years, mind set of judiciary has changed, the challenge is the masses, and the
deep rooted ones. India certainly needs a broader view and interpretation of
laws, before any uprising by the next generation which is creative and fast in
demanding their space and rights, ahead of the existing humans.
Wo chaukhaton se jyda,
Chadaron ki silvaton k beech rondi gai..
Wo haq se jyada...
Awazon ki chuppi mei siski..
Wo registaanon se jyda ..
Nadi nalon ki mohtaj rahi..
Khali badan par bhi usey..
Sirf zameen ki nami mili..
Samaaj ka ek khoya hua adarsh..
Naam rakha hai jiska usne.. aurat!

Legal Messenger
UNDERSTANDING COPYRIGHT IN RELATION TO

HUMAN RIGHTS
Janani.N
Kirthna Madhavan 1
“Only one thing is impossible for God:

To find any sense in any copyright law on the planet”.
-Mark Twain.
Introduction:
Rationale and aim of the study:

The term copyright as the name implies it provides an exclusive right to
author of the work to reproduce and to publish the work created by him and
also it prevents the unauthorised person to do so. In India, the copyright law
is governed by the Copyright Act, 1957. This concept was well recognised
and had its roots in the common law system and later on governed by the
national law in each country. In the beginning it was concerned only in the
field of literature and art but due to the technological development in recent
times, the scope of copyright also extended to the field of literary, dramatic,
artistic work, musical and also in sound recording, films, broadcast and many
more.2Even computer programs were also brought into purview of copyright
law. Before understating the term copyright it is very important to know about
intellectual property right.
Intellectual Property Right is a right which provide protection and safeguard

the intellectual skill and creation of a person so as to ensure that the creative
of an author will not be misused by the unauthorised person and also prevent
them for deriving a financial gain out of it. The rights which are governed
under the intellectual property act include copyright, patents, trademark and
1
JANANI.N- BCA, LLB (HONS), 3RD YEAR, SCHOOL OF EXCELLENCE IN LAW
(THE TAMIL NADU DR.AMBEDKAR LAW UNIVERSITY).
KIRTHNA MADHAVAN- BCA, LLB (HONS), 3RD YEAR, SCHOOL OF
EXCELLENCE IN LAW (THE TAMIL NADU DR.AMBEDKAR LAW
UNIVERSITY).
2
Intellectual Property Rights, Neeraj Pandey &KhusdeepDharni.
Legal Messenger
industrial design rights.3 In 1970, World Intellectual Property Organisation

(WIPO) and came into force and the aim of WIPO is to promote the creativity
of the author in social, economic and cultural field by providing a balanced
and accessible international intellectual property system.4 This is a
specialized agency of United Nation which stimulates the creative and
innovation of the author and also contributes to the economic development.
If there is any infringement of copyright the person who infringed the right
conferred under this Act shall be punishable with imprisonment or fine.
The rationale and aim of this paper is to study about the Copyright Act along
with the role of Human Rights in Copyright Act.
Origin of copyright:
The Statute of Anne was the first copyright law which was enacted in England
in 1710.5 This Act introduced the concept, copyright for the first time and
provided various protection only to the published work of the author and no
protection were given to the unpublished work. The concept was later on
appeared in other countries. However, in 1886, theBerne Convention6was
introduced which recognised the copyright law and also extended the
protection even to the unpublished work. This convention promoted the
development of copyright law to the international standard and also furnished
various benefits to the author of the work from the outsiders. Today the
copyright law had extended its scope to different field and it is almost
available in every country.
3
Law relating to Intellectual Property Rights, V K Ahuja, lexis nexis.
4
www.wipo.int
5
www.iprightsoffice.org
6
www.unido.org
Legal Messenger
Meaning of copyright:7
Copyright as to mean the exclusive right to do or authorised the doing of the

following act in respect of a work or any substantial part thereof, namely
 Literary, dramatic or musical work

 Computer programme
 Artistic work
 Cinematography film
 Sound recording
Three elements of copyright:
There are three elements that governs the copyright system are legislation,
enforcement and management.
 Legislation:
The first important element of copyright is the Legislation. The Copyright

Act between various countries is governed by the international treaty.
International treaties provides difference guidelines and standards to be
followed by each country in order to protect their rights from the other country
if there is any issue with regard to copyright infringement. Each country will
develop its own national laws on the basis of the international treaty.
In 1886, Berne Convention was developed which prescribed the minimum

standards of copyright protection. Till now 164 nations have given their
consent to this convention and signed it.
The standards of Berne Conventions have incorporated later into the

international treaties. Some of the treaties in which these standards were
incorporated are World Trade Organisation’s- Trade Related Aspects of
7
Section 14 of Copyright Act, 1957.
Legal Messenger
International Property Right Agreement (TRIPS)8and the World Intellectual

Property Organisation’s Copyright and Performers and Phonogram Treaties.9
The terms of international treaties have to be translated by the legislator into

their respected national law and these treaties are to be adapted to a particular
legal system operating in each country. The norms of the national law should
not be contrary to the principle of the international treaty and there should be
a harmony between these two.
 Enforcement of copyright:
The second element of copyright is the enforcement. By enforcement it means

that the rights of the copyright owner can be enforced through the
administrative as well as the legal system.
 Management of copyright:
The last important element of copyright is the management of copyright. The

management of copyright can be managed individually or collectively. In
case of larger number of users or for a mass usage, collective management
can be used through voluntary or statutory licence for both the copyrights
owner and users.
The individual management of right can be used for law relating to contracts
and judicial system. The functions of this field can be fully achieved through
this method. Education and communication acts as an important tool for
management of copyright. For example, creating an awareness and educating
the author and publisher about their rights and protection.
8
www.googleweblight.com
9
www.law.cornell.edu
Legal Messenger
Ownership of copyright:
The ownership of copyright is defined under Section.17 of the Act.10The

author of the work is generally considered to be the first owner of the
copyright. But this is also subjected to certain provision under the Act. Before
dealing with the ownership of the work it is indispensable to understand who
can act as an author of work.
The term “author” is defined under Section 2(d) of the Copyright Act such
as,11
 The author of the work in relation to a literary or dramatic work;

 The composer in relation to a musical work;
 The artist in relation to an artistic work other than a photograph;
 The person taking photograph, in relation to photography;
 The producer in relation to a cinematography film or sound recording
and;
 The person causes the work to be created in relation to any literary,
dramatic, musical and artistic work which is computer generated.
The important factor that determines the right of copyright is the nationality
of the author. The Section 13(2) of the Act provides as follows: “|In case of
published work, the work must be published in India or when published
outside India, the author must be the citizen of India at the date of
publication.”12
Section.7 of the Copyright Act provides that, “In case of unpublished work,
at the time of publishing the work outside India, he must be citizen of India
10
The Copyright Act, 1957.
11
ibid.
12
Ibid.
Legal Messenger
or domiciled in India where the making of the unpublished work is extended

over a considerable period.”13
The citizen of other country and the international organisation are also
protected under the Copyright Act in India but there are certain conditions
to be fulfilled in order to get the protection and they are not per se qualified
for this protection.
Registration of copyright:
The registration of work of an author under the Copyright Act is contemplated

under Section.44 of the Act. Registering the work under the Act provides a
complete protection from the unauthorised user. However, the registration is
not mandatory according to the provision of the Act and it doesn’t affect the
right of the person to sue for infringement activity. The author can approach
the Court even when his work is not registered under the Act. The registration
acts as a prima facie evidence in the Court.
All the records with regard to the registration are wholly maintained by the
Copyright Officer. The Officer is required to register the title of the work
along with the name and address of the author and owner of copyright. This
record is maintained under six parts for each category of work separately.
Protection under copyright:
The Copyright Act provides certain protection to the author of the work in the
following two forms- Economic rights and Moral rights,
 Economic Rights:
The Copyright Act provides certain economic rights to be enjoyed by the

author. In case of literary, dramatic and musical work the author of the work
are given right to reproduce their work in any form and to perform the work
13
Ibid.
Legal Messenger
in any public place for communication to the public they can also issue a copy
of their work for public use, translation or adaptation can be also to be made
to the work.14
In case of computer program, the author is given all the above right in
addition to that he is also given a right to sell or give it for hire even though
it is already given for hire to some other person. 15
For artistic work,16 the author have right to reproduce the work, issue his
work to public, to perform the work and communicate it to public, to include
the work in any cinematograph film, to sell or to hire his work to another, to
translate the work and making changes to it.
The right will be enjoyed by the author in case of photograph, cinematograph

and also for sound recording.17
 Moral Rights: Section 57 of the Act deals with moral rights, these are:
 Right to paternity
 Right to integrity
Right to paternity means, the author has the right to claim the ownership over
his work and it also prevents the public from claiming the ownership.
Whereas the right to integrity means, that it prevent the unauthorised person
to make any alteration, distortion, mutilation of his work that defames the
honour and reputation of the author. The author is also entitled to claim
damages for such acts. These rights will be vested to the author automatically
and it remains even after his death. The author cannot assign his right to
another person.
14
Section.14 (a) (i) – The Copyright Act, 1957.
15
Section.14 (b)– The Copyright Act, 1957.
16
Section.14 (c) of The Copyright Act, 1957.
17
Section. 14 (d) & (e) of The copyright Act, 1957.
Legal Messenger
Infringement of copyright:
The author of the work was considered to be the owner of right and is vested
with a power to publish and to reproduce the work in order to gain a financial
benefit out of it. If any unauthorised person without any authority publishes
or reproduce the work of the author which is protected under the Act, this
constitutes an infringement of copyright.
But there is an exception to this rule, that is, if the work of the author has been
published or reproduced after the expiry of the copyright then this activity
shall not amount to infringement of copyright.
However, the law permits the user to take a copy of work of author for private
and domestic reference. But it is still restricted to only one copy.
The Act which amount to infringement of copyright is as follows18:
 Making infringing copies for sale or hire or selling or letting them for
hire;
 Permitting any place for the performance of works in public where such
performance constitute infringement of copyright;
 Distributing infringing copies for the purpose of trade or to such an extent
so as to affect prejudicially the interest of the copyright;
 Public exhibition of infringing copies by way of trade;
 Importation of infringing copies into India.
Exception to copyright infringement in India:
Certain acts are exempted from the Copyright Act and they do not come
within the ambit of infringement of copyright. The exception and limitation
in the Act permit the individual to use the copyrighted work even without
getting prior approval or license from the author. The Berne Convention also
18
Section.51 of Copyright Act, 1957.
Legal Messenger
sets out three step test for protecting the interest of the author. The exception
will vary from one country to another with regard to their scope and number.
Section.52 of the Act, provide certain exception to the copyright, that is, an
act will not constitute as an infringement if it is done with a fair dealing.
Doctrine of fair dealing:
The doctrine of fair dealing is a legal doctrine which is not defined under the
Act. This doctrine permits a person to take a reasonable copy of the work
without getting prior approval from the owner but this extracted portion
should not affect the interest of the author19. The fact and circumstance of the
case have to be taken into consideration to determine whether an act comes
with the purview of fair dealing. The Courts have also interpreted the concept
fair dealing in number of cases.
Offences and penalties:
The individual who intentionally infringes or who abates the infringement of

the copyright law or any other rights conferred by this Act shall be punishable
with an imprisonment of not less than six month which may extend to three
years or with a fine of fifty thousand rupees which may extend to rupees two
lakhs20.
The court also have subsequent power to convict with an imprisonment of not
less than one year which may extend to three years and also liable to fine not
less than one lakh which may extend to two lakhs rupees21.
Human rights:
“As we enter the new century, we do so with the knowledge that enjoyment
of all human rights, including the right to development, is the cornerstone
19
www.lexology.com.
20
Section 63 of Copyright Act, 1957.
21
Section 63A of Copyright Act, 1957.
Legal Messenger
of peace and security, and the key to preventing future conflict and hiding
a common future”.
-Mary Robinson, High Commissioner for Human Rights.
Rights’ being the human virtue is incorporated implicitly for humans in the
form of human rights. It is a form of protection of human dignity. The rights
implied should be fair in nature, impartial and it should provide justice to the
society at large. It includes civil, economic, social rights at large.22 Only the
government has the sole authority to provide the protection to human in order
to maintain proper regulation. Human rights give protection only from the
harm which is caused by the government authorities against public. 23 The
state behaviors are protected by a set of rules, which is covered by
international human rights law. Meanwhile, the covenants between the state
and the international community are known as international human right
treaties. When a particular state subsequently accepts or ratifies these
agreements, they are bound to abide it. State human rights have certain
24
obligation to be done.
What are human rights?
“Human rights are rights inherent to all human beings, whatever our
nationality, place of residence, sex, national or ethnic origin, colour, religion,
language, or any other status. We are all equally entitled to our human rights
without discrimination. These rights are all interrelated, interdependent and
indivisible.
Universal human rights are often expressed and guaranteed by law, in the
forms of treaties, customary international law, general principles and other
22
The core International Human Rights Treaties.
23
The law of Human rights, Richard Clayton QC & Hugh Tomlinson QC, Second edition,
volume II.
24
www.ohchr.org
Legal Messenger
sources of international law. International human rights law lays down

obligations of Governments to act in certain ways or to refrain from certain
acts, in order to promote and protect human rights and fundamental freedoms
of individuals or groups.”25
Black’s law dictionary,26
“Human Rights- freedoms, immunities and benefits that according to modern

values, especially at an international level, all human beings should be able
to claim as a matter of right in the society in which they live.”27
Universal Declaration of Human Rights, UN commission on Human Rights,

ASEAN intergovernmental Commissioner on Human Rights28 is some of the
treaties that have binding force. The human rights activities are supported by
the UN High commissioner for human rights. The functions and the
jurisdiction of human rights differ. It is generally said that, human rights is
universal, inevitable, indispensible, and dynamic in nature. Human rights
cannot be removed or taken away. UN Economic and social council have an
organization known as United Nations Human Rights Council; it is created
for safeguarding individual rights. United Declaration of Human rights
incorporate 30 Article for the welfare of people. 29
Since, the Human Rights adapt according to the society, it has also adopted
certain covenants like CEDAW,30 CRC,31 and CAT.32 When government
officials fail to protect or disrespect an individual, the so called human rights
is said to be violated. CRC which is said to be Convention on the rights of the
25
ibid.
26 th
8 edition- pg. 2167.
27
www.abovetopsecrets.com
28
www.aichr.org
29
www.un.org
30
The Convention on Elimination of all Forms of Discrimination Against Women. An
international treaty adopted in 1979 by UN General Assembly. Instituted on 3 rd September
1981 and subsequently ratified by 189 states.
31
Convention on the Rights of the Child.
32
Convention Against Torture.
Legal Messenger
child is for the empowerment of children. It consists of 54 Articles. The major

work is to resolve the issues relating to children.33 After drafting the
constitution of India, the framers were inspired by the concept of Human
rights. Where, part III of the Indian constitution included the civil and
political rights under the fundamental right and part IV incorporates the
economic, social and cultural right. 34
Whereas, international humanitarian law differs from human rights, in

international humanitarian law are rules which looks for the humanitarian
reasons. It is a framework that deals with the situations of armed conflicts.
This is also known as the laws of war and also laws of armed conflict.35
Both domestic and international law protects the rights of human i.e. the
Human Rights.36 Even in the developed democratic countries, still human
rights are being violated. National Human Rights Commission of India
(NHRC) was setup in India for the promotion and protection of human rights.
Even Gandhiji struggled for human rights based on “humanism” and the most
heard term “non-violence”. He also believed service to humanity is service to
God. Hence the movement of Human Rights is quite strong in country like
India.
Copyright in relation to human right:
Copyright plays as a tool that protects the rights of authors. There are two
parts that need to be taken into consideration when it comes to copyright
linked with human rights, firstly, it should see the creative of an individual,
secondly about the economic welfare and growth.37 Copyright being a
33
www.unicef.org
34
Introduction to The Constitution of India, Dr.Durga Das Basu, 21 st edition.
35
http://www.academic.oup.com
36
Human Rights, Dr.H.O.Agarwal.
37
Law relating intellectual property, Dr.B.L. Wadehra, 5 th edition.
Legal Messenger
property right, which is being incorporated as Intellectual property Right can

be expressively seen in Article.17 of UDHR which reads as follows,
“1. Everyone has the right to own property alone as well as in association with
others.
2. No one shall be arbitrarily deprived of his property.”38
Copyright always resolves the conflict between the rights of human and
society at large. It doesn’t only protects one’s original work but, through
copyrights it can help people earn money on one side and also increase the
data which is to be known to people, by means of the authors original work.
Even Article.27 (1) of UDHR states, “Everyone has the right freely to
participate in the cultural life of the community, to enjoy the arts and to share
in scientific advancement and its benefits” and Article.27 (2) says “Everyone
has the right to the protection of the moral and material interest resulting from
any scientific, literary or artistic production of which he is the author.”
Berne convention for the protection of literary and artistic work incorporated
a vast level of protection of the copyrights in IPR. Even TRIPS agreement,39
Article. 9 to 13 provide limited standards in regard to copyright. And Article.9
(2) of Berne convention provides certain exceptions. When one’s work is
copied by others, it doesn’t only incurs the violation of human right, copyright
but also the fundamental right under Indian constitution is affected, majorly
it affects Article.19 (1) (a) of Indian constitution. Where, freedom of speech
and expression doesn’t alone include once right to speak with limitation and
restrictions but also freedom of press.40
38
www.un.org
39
TRIPS Agreement and Intellectual Property Rights Regime in India, Dr.Shaiwalsatyarthi.
40
The Constitution of India, P.M.Bakshi, 13th edition.
Legal Messenger
 General definition: Right to privacy means, the right of a person to be

free from intrusion into or publicity concerning matters of a personal
nature. (Merriam Webster)
 Oxford dictionary: Privacy is a state in which one is not observed or
disturbed by other people.
When one’s work is copied or isn’t protected, once privacy is affected at large,
which is incorporated under Article.21 of Indian constitution. Privacy is dealt
under Article.12 of UDHR and Article.17 of ICCPR.41
Whereas, right to freedom of speech and expression is dealt under Article.19

of UDHR simultaneously Article.19 (1) (a) of Indian constitution as we have
dealt above. Even right to life is dealt under Article.21 of Indian constitution
simultaneously the Right to life, liberty and security of person is explained
under Article.3 of Universal Declaration of Human Rights. From this we
come to know that one’s violation of privacy in work, or one’s restriction in
freedom of speech and expression also violated the human right majorly.
Even Article.1 of protocol No.1 to the convention has a general rule that
“every natural or legal person is entitled to the peaceful enjoyment of his
possession” and the next rule is to have “control of the property”, this Article
hence majorly deals with the protection of one’s property.42
Once the work done by the authors are seemed to be original then, it is used
as a source for acquiring information and that amount of data which is
provided to people is accepted by the society and finally certain facts are
considered and followed as culture. Even Article.15 of International covenant
on Economic, Social and Cultural Rights comes under this purview.
41
The International Covenant on Civil and Political Rights, came into force from 23 rd March,
1976.
42
www://ukhumanrightsblog.com
Legal Messenger
Hence from this we come to know that UDHR, ICESR43 and other provisions
of law which is dealt above protects the human right of the author original
works. It was a known fact that there was accepted agreement of the right to
everyone to enjoy the scientific improvements and cultural life. Another
important factor which includes human right in copyright is American
declaration on the Rights and Duties of Man contains provision of law relating
to intellectual property right, Article.13 deals with it. Provision on cultural
rights has been made as draft by UNESCO. Freedom of creation could be
implicit right given to the authors, inventors or creators. Human right
perspective strives to balance intellectual property right, majorly copyright. It
protects the authors or inventors and their original work. Human Rights
relation to copyright not only protects once original work but also safeguards
the human dignity, privacy, freedom of speech and expression at large.
Conclusion:
Copyright is a bundle of right given by the law to safeguard the interest and
rights of the creator. The aim of protecting the rights of the creator is to
promote various innovations in different fields. Section.14 of Copyright Act,
1957 deals with copyright. World Intellectual Property Organisation is a
branch of UN’s specialized agency which also promotes the rights of the
creator. The Copyright Act is governed by three main elements such as
legislation, enforcement and management. The creators of the work are
usually considered to be the owner and they can exercise all rights that are
provided by the Act. The work had to be registered by the owner so that they
can take a legal action for infringement, still registration is not mandatory.
The Act also provides various exceptions to this right. Human Rights have
also provides certain protection with regard to copyright issue by a way of
protecting individuals dignity. Universal Declaration of Human Rights under
43
International Covenant on Economic, Social and Cultural Rights.
Legal Messenger
Article 27 provides protection to all individual with regard to any literary,

artistic and scientific work. Certain covenant have also adopted by UDHR to
govern copyright. It safeguards the moral and economic interest of the creator
from the unauthorized user so that the owner can get the real benefit out of
their work. Though Copyright and Human Rights are distinct and contrary
they still provide protection to the individual at large.
Legal Messenger
FEMALE GENITAL MUTILATION:

INHUMANETREATMENT OF WOMEN
M.Geethapriyadarsani 1
“Female genital mutilation targets little girls, baby girls – fragile angels
who are helpless, who cannot fight back. It’s a crime against a child, a
crime against humanity. It’s abuse. It’s absolutely criminal and we have to
stop it. -Waris Dirie
Introduction:
Female genital mutilation has been on discussion in recent years.

Female genital mutilation (herein after referred as FGM), also known
as female genital cutting and female circumcision, is the ritual cutting or
removal of some or all of the external female genitalia for non medical
reasons. It is a custom practiced by many religious sects all over the globe.
It is an unjust practice and one of the worst violence on women. It is

mostly done to young girls mostly between infancy and adolescence. To the
utmost surprise, this worst culture is being developed by the parents and
community. Parents consider that, there should be “sexual purity” for girls
and to preserve their virginity, FGM is performed and this is an honor to the
family and sometimes contended that the practice is to save or maintain the
honor of the family. This is performed by a traditional circumciser in the
victim’s house, with or without anesthesia and in a most unhygienic manner.
FGM is an insult and assault to womanhood by parents itself. The

worst thing is that the female relatives of the bride and groom watch the
opening of the vagina to check that the girl is a virgin or not2. FGM degrades
the physical and emotional health of the women till her death. The World
1
Faculty Associate, ICFAI Law School Hyderabad.
2
https://en.wikipedia.org/wiki/Female_genital_mutilation
Legal Messenger
Health Organization (WHO) estimates that more than 140 million girls and
women have undergone FGM. FGM violate women’s and children’s human
rights including their right to life, health, sexual and physical integrity, free
from discrimination, free from torture, cruel, inhuman and degrading
treatment. FGM has no health benefits, and it harms girls and women in many
ways. It has immediate and long term effects on health of the person.
Meaning of Female Genital Mutilation:
The WHO, UNICEF and UNFPA issued a joint statement in

1997 defining FGM as "all procedures involving partial or total removal of
the external female genitalia or other injury to the female genital organs
whether for cultural or other non-therapeutic reasons"3.World Health
Organisation (WHO) based on severity, has classified FGM in to four types.
 Type 1: Often referred to as clitoridectomy, this is the partial or total

removal of the clitoris (a small, sensitive and erectile part of the female
genitals), and in very rare cases, only the prepuce (the fold of skin
surrounding the clitoris).
 Type 2: Often referred to as excision, this is the partial or total removal of
the clitoris and the labia minora (the inner folds of the vulva), with or
without excision of the labia majora (the outer folds of skin of the vulva).
 Type 3: Often referred to as infibulation, this is the narrowing of the
vaginal opening through the creation of a covering seal. The seal is formed
by cutting and repositioning the labia minora, or labia majora, sometimes
through stitching, with or without removal of the clitoris (clitoridectomy).
 Type 4: This includes all other harmful procedures to the female genitalia
for non-medical purposes, e.g. pricking, piercing, incising, scraping and
cauterizing the genital area.
3
https://en.wikipedia.org/wiki/Female_genital_mutilation
Legal Messenger
According to Section 1 of United Kingdom’s Female Genital Mutilation

Act-2003, a person
is guilty of the offence of female genital mutilation/cutting “if he excises,
infibulates or otherwise
mutilates the whole or any part of a girl’s labia majora, labia minora or clitoris”.
According to Section 3 of Australia’s Crimes (Female Genital
Mutilation) Act, 1996 defines
FGM as “all or any of the following – (a) infibulation; (b) the excision or
mutilation of the
whole or a part of the clitoris; (c) the excision or mutilation of the whole
or a part of the labia
minora or labia majora; (d) any procedure to narrow or close the vaginal
opening ; (e) the
sealing or suturing together of the labia minora or labia majora; (f) the
removal of the clitoral
hood”.
History of FGM:
The first mention of male and female circumcision appears in writings
by a Greek geographer Strabo, who visited Egypt around 25 B.C 4. It is not
known when or where the tradition of Female Genital Mutilation originated
from. It was believed that it was practiced in ancient Egypt as a sign of
distinction amongst the aristocracy. Some believe it started during the slave
trade when black slave women entered ancient Arab societies5. The Romans
performed a technique involving slipping of rings through the labia majora of
female slaves to prevent them from becoming pregnant and the Scoptsi sect
in Russia performed FGM to ensure virginity6. It is prevalent in Africa,
4
https://www.seeker.com/how-did-female-genital-mutilation-begin-1766105357.html
5
http://www.fgmnationalgroup.org/historical_and_cultural.htm
6
Ibid
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European countries, Canada, Australia, USA, and Asia. The barbaric practice
still exists.
Reasons for the practice of FGM:
The reasons cited for female genital mutilation include7:
 controlling female sexuality
 hygiene and cleanliness
 guaranteeing female virginity until marriage
 a belief by both men and women that a narrow opening heightens male
sexual pleasure
 enhancing fertility
 traditional and cultural practice
 The belief that it is a religious obligation.
 The procedure is seen by parents as a positive action that guarantees their
daughters initiation into womanhood and future security.
 Social pressure
What is the need for abolition of FGM:
It is a discrimination against women. It is a violation of right to life,
physical integrity, health, privacy, violation of children’s right. It lowers the
dignity of women. It has lifelong problems and sometimes it may lead to
death. It is a danger to women’s health. Immediate health complications
include hemorrhage, shock and death; infection, retention of urine, injury to
the urethra, vagina, perineum or rectum; and urinary or faecal incontinence.
In general, in types III and IV the narrowed vaginal opening is likely to cause
obstetric problems. These include8:
 prolonged and obstructed labour
 an increase in the number of episiotomies and perineal tears
7
http://onlinelibrary.wiley.com/doi/10.1576/toag.9.2.095.27310/pdf
8
http://onlinelibrary.wiley.com/doi/10.1576/toag.9.2.095.27310/pdf
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 a high caesarean section rate caused by the difficulty in fetal monitoring

and lack of adequately trained obstetric staff
 an increased incidence of postpartum hemorrhage
 an increased incidence of postnatal wound infection
 maternal death from obstructed labour and postpartum hemorrhage
 increased stillbirth and early neonatal death rates
 increased neonatal morbidity from hypoxia and brain damage.
The Long-term complications from female genital mutilation are9:
 Keloid formation from slow, incomplete wound healing leading to
deposition of excess connective tissue and vulval granulation
 Paraclitoral cysts
 Sexual dysfunction and marital disharmony resulting from painful
intercourse
 Anorgasmia from repeated difficulty in penetration and absence of the
clitoris
 Recurrent urinary tract infection (from the collection and stagnation of
urine in the vagina allowing bacteria to enter the urethra)
 Renal failure
 Haematocolpos from retention of menstrual flow
 Incontinence resulting from a damaged urethra
 Pelvic inflammatory disease and infertility as a result of chronic
infections
 Vesicovaginal or rectovaginal fistulae (after prolonged delivery)
 Transmission of HIV and hepatitis from the use of non-sterile instrument
 Psychological disorders
9
Ibid
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So taking these all issues i.e. violation of right to life, personal integrity,
privacy, health, etc there is a need to abolish FGM immediately all over the
world.
International Perspectives on FGM:
FGM is a harmful and unjust practice and a violation of the
human rights of girls and women. In December 2012, the UN General
Assembly unanimously recognized female genital mutilation as a violation of
human rights.
The prohibition of gender discrimination is upheld by various
international
instruments like Universal Declaration for Human Rights(UDHR),
International Convention on Civil and Political Rights(ICCPR), International
Convention on Economic, Social and Cultural Rights(ICESCR), Convention
on the Elimination of All Forms of Discrimination Against
Women(CEDAW), Convention on The Rights of the Child(CRC).
Universal Declaration for Human Rights (UDHR):
Article 2 enunciates that everyone is entitled to all the rights and freedoms
set forth in this Declaration, without distinction of any kind, such as race,
colour, sex, language, religion, political or other opinion, national or social
origin, property, birth or other status. Furthermore, no distinction shall be
made on the basis of the political, jurisdictional or international status of the
country or territory to which a person belongs, whether it be independent,
trust, non-self-governing or under any other limitation of sovereignty.
Article 3 states that everyone has the right to life, liberty and security of
person.
Article 5 enunciates that no one shall be subjected to torture or to cruel,
inhuman or degrading treatment or punishment.
Article 7 states that all are equal before the law and are entitled without any
discrimination to equal protection of the law. All are entitled to equal
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protection against any discrimination in violation of this Declaration and

against any incitement to such discrimination.
Article 8 enunciates that everyone has the right to an effective remedy by the
competent national tribunals for acts violating the fundamental rights granted
him by the constitution or by law.
Article 12 states that no one shall be subjected to arbitrary interference with
his privacy, family, home or correspondence, nor to attacks upon his honour
and reputation. Everyone has the right to the protection of the law against
such interference or attacks.
International Convention on Civil and Political Rights (ICCPR):
Article 2 enunciates that everyone has the right to enjoy their civil and
political rights without any discrimination.
Article 6 states that every human being has the inherent right to life. This
right shall be protected by law. No one shall be arbitrarily deprived of his life.
Article 7 enunciates that no one shall be subjected to torture or to cruel,
inhuman or degrading treatment or punishment. In particular, no one shall be
subjected without his free consent to medical or scientific experimentation.
Article 24 states that every child shall have, without any discrimination as to
race, colour, sex, language, religion, national or social origin, property or
birth, the right to such measures of protection as are required by his status as
a minor, on the part of his family, society and the State.
Article 26 enunciates that all persons are equal before the law and are entitled
without any discrimination to the equal protection of the law. In this respect,
the law shall pro hibit any discrimination and guarantee to all persons equal
and effective protection against discrimination on any ground such as race,
.colour, sex, language, religion, political or other opinion, national or social
origin, property, birth or other status.
International Convention on Economic, Social and Cultural Rights
(ICESCR):
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Article 3 enunciates that the States Parties to the present Covenant undertake
to ensure the equal right of men and women to the enjoyment of all economic,
social and cultural rights set forth in the present Covenant.
Article 12 enunciates that 1. the States Parties to the present Covenant
recognize the right of everyone to the enjoyment of the highest attainable
standard of physical and mental health.
2. The steps to be taken by the States Parties to the present Covenant to

achieve the full realization of this right shall include those necessary for:
(a) The provision for the reduction of the stillbirth-rate and of infant mortality
and for the healthy development of the child;
(b) The improvement of all aspects of environmental and industrial hygiene;
(c) The prevention, treatment and control of epidemic, endemic, occupational

and other diseases;
(d) The creation of conditions which would assure to all medical service and
medical attention in the event of sickness.
Convention on the Elimination of All Forms of Discrimination Against

Women (CEDAW):
Article 1 enunciates that any distinction, exclusion or restriction made on the

basis of sex which has the effect or purpose of impairing or nullifying the
recognition, enjoyment or exercise by women, irrespective of their marital
status, on a basis of equality of men and women, of human rights and
fundamental freedoms in the political, economic, social, cultural, civil or any
other field.
Article 2 obliges States parties: – to condemn discrimination against women;

– to embody the principle of equality of men and women in their national
constitutions, or other legislation; – to adopt legislative measures, including
sanctions, to prohibit discrimination against women; – to establish legal
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protections against discrimination through national tribunals and other

institutions; – to refrain from any act which discriminates against women and
to ensure that public authorities and institutions also act accordingly; – to take
all appropriate measures to eliminate discrimination against women by any
person, organization or enterprise; – to introduce legislation or other
appropriate measures to modify or abolish laws, regulations, customs, and
practices which constitute discrimination against women and repeal penal
provisions which amount to discrimination against women.
Article 5a requires States parties to modify social and cultural patterns of

men and women to eliminate practices based on the idea of sex role
stereotyping or the inferiority or superiority of either of the sexes.
General Recommendation No. 14 (1990) discusses "female circumcision.
General Recommendation No. 19 (1992) discusses "violence against

women. Specifically, it states that "[t]he definition of discrimination includes
gender-based violence, that is, violence that is directed against a woman
because she is a woman or that affects women disproportionately.
General Recommendation No. 24 (1999) discusses "women and health.”
Convention on The Rights of the Child (CRC):
Article 3 enunciates that 1. In all actions concerning children, whether

undertaken by public or private social welfare institutions, courts of law,
administrative authorities or legislative bodies, the best interests of the child
shall be a primary consideration.
2. States Parties undertake to ensure the child such protection and care as is
necessary for his or her well-being, taking into account the rights and duties
of his or her parents, legal guardians, or other individuals legally responsible
for him or her, and, to this end, shall take all appropriate legislative and
administrative measures.
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3. States Parties shall ensure that the institutions, services and facilities
responsible for the care or protection of children shall conform with the
standards established by competent authorities, particularly in the areas of
safety, health, in the number and suitability of their staff, as well as competent
supervision.
Article 5 enunciates that States Parties shall respect the responsibilities, rights
and duties of parents or, where applicable, the members of the extended
family or community as provided for by local custom, legal guardians or other
persons legally responsible for the child, to provide, in a manner consistent
with the evolving capacities of the child, appropriate direction and guidance
in the exercise by the child of the rights recognized in the present Convention.
Article 6 enunciates that 1. States Parties recognize that every child has the
inherent right to life.
2. States Parties shall ensure to the maximum extent possible the survival and
development of the child.
Article 16 enunciates that 1.No child shall be subjected to arbitrary or
unlawful interference with his or her privacy, family, home or
correspondence, nor to unlawful attacks on his or her honour and reputation.
2. The child has the right to the protection of the law against such interference
or attacks.
Article 19 enunciates that 1. States Parties shall take all appropriate

legislative, administrative, social and educational measures to protect the
child from all forms of physical or mental violence, injury or abuse, neglect
or negligent treatment, maltreatment or exploitation, including sexual abuse,
while in the care of parent(s), legal guardian(s) or any other person who has
the care of the child.
2. Such protective measures should, as appropriate, include effective

procedures for the establishment of social programmes to provide necessary
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support for the child and for those who have the care of the child, as well as
for other forms of prevention and for identification, reporting, referral,
investigation, treatment and follow-up of instances of child maltreatment
described heretofore, and, as appropriate, for judicial involvement.
Article 24 enunciates that 1. States Parties recognize the right of the child to
the enjoyment of the highest attainable standard of health and to facilities for
the treatment of illness and rehabilitation of health. States Parties shall strive
to ensure that no child is deprived of his or her right of access to such health
care services.
2. States Parties shall pursue full implementation of this right and, in

particular, shall take appropriate measures:
(a) To diminish infant and child mortality;
(b) To ensure the provision of necessary medical assistance and health care
to all children with emphasis on the development of primary health care;
(c) To combat disease and malnutrition, including within the framework of

primary health care, through, inter alia, the application of readily available
technology and through the provision of adequate nutritious foods and clean
drinking-water, taking into consideration the dangers and risks of
environmental pollution;
(d) To ensure appropriate pre-natal and post-natal health care for mothers;
(e) To ensure that all segments of society, in particular parents and children,
are informed, have access to education and are supported in the use of basic
knowledge of child health and nutrition, the advantages of breastfeeding,
hygiene and environmental sanitation and the prevention of accidents;
(f) To develop preventive health care, guidance for parents and family
planning education and services.
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3. States Parties shall take all effective and appropriate measures with a view
to abolishing traditional practices prejudicial to the health of children.
4. States Parties undertake to promote and encourage international co-

operation with a view to achieving progressively the full realization of the
right recognized in the present article. In this regard, particular account shall
be taken of the needs of developing countries.
Indian Perspective:
In India, the practice is called ‘Khatna’ and it prevails only

in the community of Dawoodi Bohras, a sect of Shia Muslims. There is no
special legislation to eradicate this evil but a complaint can be filed under
Indian Penal Code (IPC) and POSCO Act, Protection of Women against
Domestic Violence Act.
Indian Penal Code
Section 324: Voluntarily causing hurt by weapons or means
Section 326: Voluntarily causing grievous hurt by weapons or means
POCSO ACT 2012
Section 3(b) states that if any person inserts, to any extent, any object or a
part of the body, not being the penis, into the vagina, the urethra or anus of
the child or makes the child to do so with him or any other person
Conclusion:
Swami Vivekananda said that “There is no chance for the

welfare of the world unless the condition of woman is improved. It is not
possible for a bird to fly on only one wing”. FGM violates human rights,
right to equality, right to life, right to freedom from torture, right to health. So
it should be stopped. To stop Female genital mutilation
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 Mothers should have access to primary education

 Government should take all measures to stop FGM
 Existing laws should be widened to punish FGM
 Women empowerment and education for women
 The medical license of medical practitioners, who engage in FGM should
be withdrawn
 NGO’s should play active role and inform the parents about the benefits
of eliminating FGM
 Awareness to eliminate FGM mainly should start with the young men.
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ENVIRONMENT CONSERVATION AND SUSTAINABLE

DEVELOPMENT IN INDIA
Rekha Kumari 1
Introduction
There is a very integrated relationship between environmental protection and

development. That's because, as perhaps the current paradigm of our
development has brought a lot of damage to the environment. The starting
point of sustainable development is the idea that the long term preservation
of our environment, our habitant as well as its biodiversity and natural
resources will only be possible if combined simultaneously with economic,
social, political development particular geared to the benefit of the poorest
members of society. It finds expression in the integrated concept of
environment and development. Sustainable development is the development
that seeks to improve the quality of human life without undermining the
quality of our natural environment. Sustainable development therefore,
implies protecting the human capital stock, environmental wealth, land, water
and air, ecological living and non-living resources, and socio-economic base.2
In order to understand its role in environmental protection and wage
development, it is also important for us to understand the GDP-based model
of sustainable development of environmental, social and economical models,
which have been attempted to explain in the further sections of this article.
Before that it's important to consider a few facts which are based on
environmental protection and sustainable development.
India: From a Nature Servant to Developing Country
In 1730, Gram Khejarli-Jodhpur, 363 male Bishnoi species in Rajasthan,

women and children at the hands of Soldier lost their lives to protect
1
Research Scholar, Department of Laws, BPSMV, Sonipat.
Email: neely1234@gmail.com
2
DR. Myneni, S.R., Environmental Studies, Asia Law House, Hyderabad, Edition-2008,
p.617.
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trees. This sentence became an inspiration for the entire world to protect the
environment and this same thinking in the 19th century has led to public
movements in the form of 'One Satyagraha' and 'Chipko Movement' in
India and nature in the form of 'Tree Hugger' in many countries strengthened.
Our civilization is one of the societies that run to keep up with the nature
of ancient times, which did not even seem like putting their lives at risk
to protect nature. May be they it was known that the human is the well-
being and development of the balance of nature.
Intolerance towards environmental degradation is included in the
ancient articles of India, in which human theology (Manu Smriti) is
known worldwide by this view. The laws of our modern age, such as the
Environmental Protection Act, 1986, the Wildlife Protection Act, 1972,
etc. also form the same scriptures.3
We cannot deny the fact that the era of globalization not only polluted our
environment, but also affected our lifestyle and our culture. The nature that
we worshiped with goddesses as gods, today we are completely destroying
them with pollution and nature 'technology' or doing it completely. We faced
some challenges that we had created, but it was all very new, and as long as
we had the ability to understand these side effects, it was too late. Sustainable
agriculture uses locally available renewable resources, appropriate and
affordable technologies, and minimizes the uses of external and purchased
inputs.4
We were at such a stage where going back can be a very big risk, or we can
understand that the path of return was very painful because we had become
3
DR. Negi, Vidya Bhagat, Environmental Laws: Issues and Challenges, Regal Publications,
New Delhi, 2011.
4
Sharma V.D., Sharma Brijesh, “Environment and Sustainable Development in India
Perspective,” Deep and Deep Publications, New Delhi, 2011, p. 27.
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those facilities and the urban life style may not be liked to go into the Stone
Age. The other problem was that no one had ever imagined about these major
side effects because at that time our science was not developed as much.
Today the world is affected by problems such as global warming or water
changes.
The construction of dams and barrages, where we created electricity, we

strangled our rivers and destroyed the fish and other living beings in it. From
the forests that our tribal brother has been living for hundreds of years, we
started snatching from him and started raising him from his ancestral life and
home from the root.
In the agricultural country where river water was irrigated and irrigated by
the fertile soil brought by it in the flood, it was being diverted to the
development of water industries and cities, fertilizers to increase the fertility
of the soil and in many ways the chemicals are being sprayed. Farming
increased but people became victims of cancer and many crippled diseases,
our ground water level fell so much that our bore well started to evaporate
poison with water and in agricultural states like Punjab; farmers were
suffering from serious diseases such as cancer.
Electricity was also found, but in return for pure air, pure water and
uncommon environmental impact. And the real evidence of all these things is
found in every region of India, scientific reports are also found. Now the
question is whether our current model of development which is production-
based - will provide life-level and human needs in place for this development?
Health is also important, but would you like to be poor and illiterate? And if
you have a secure income pool, would you like to live with polluted air and
dirty water? Sanskars and Dharma are also important, but will you be able to
starve your family for those principles? The answer to all these questions is -
Understanding the importance of environmental balance and social balance,
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inclusive development. We can also call this the basic premise of sustainable
development, due to which growth can be consumed in adequate quantity of
our needs and also sufficient resources for our future generations.
Short Term Development - Long Term Effect
There are certain basic principles of sustainable development which has

gained credibility in international law as well; among them one is been
essential principle of sustainable development is that ‘the use and
conservation of natural resources’ which says that to use the earth’s natural
resources carefully and natural resources base must be conserved and
enhanced is our moral obligation to other living beings and future generation.
Environment conservation must be the part of decision making at all national
and global levels and strong environmental policies must reinforce
sustainable development.5
It is obvious that the exploitation of resources in any product plagiarism

model is obvious. We calculate the benefits of such projects directly from the
monetary cost and result. The coincidence of this is very rare that we never
add environmental value and social prices to it, but the most important thing
is that the loss that comes to it always happens, and the benefits of those
natural sustainable benefits you and your children never get in time.6
As if a tie of a dam is judged as long as we get monetary benefit from it, but
for that benefit we have to sacrifice that river and dependent natural benefits
for eternity. Coal-based thermal power plants are estimated to be around 30
years old and have also been considered that coal is not sustainable energy
5
Singh, Jagbir, Environment Development-Challenges and Opportunities, I.K International
pvt, Delhi,2005, P. 131
6
Shanthakumar’s, S., Introduction to Environmental Law, Wadhwa & Company, Nagpur,
Second Edition, 2007.
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sources for a long time, and its effect is very overwhelming on atmospheres
and local water sources.
But if we depend on that coal-based electricity, then we have to sacrifice our

old dense forests first, those forests and coal-rich land have to be rooted in
our dependents and the cost of their livelihood is increased. The side effect of
it is that it suffers, as well as adverse health effects. The coal has to adversely
affect the livelihood and health of the environment and the people from the
electricity houses and then to the electricity home.
And for the power of just 30 years, we sacrifice our old days of old forests,
rivers and rich civilizations for eternity.
Components of Sustainable Development
It is very important to understand the three key principles of the ecosystem to

look at sustainable development from the perspective of sustainable
development:
1. Any organism has the capacity to produce as much as possible.
2. This continuous confrontation with limited time, space and energy of this
production capacity continues.
3. Resilience of any ecosystem i.e. the ability to return from its damaged
condition depends on biodiversity.
The sustainable development in general is perceived as a process of

development to ensure that it meets the needs of the present without
compromising the ability of future generation to meet their own needs and is
a process of social and economical betterment that satisfies the needs and
values of all interested groups without foreclosing future option. 7 Therefore,
if we keep these above three principles in mind, we will first have to control
7
DR. Myneni, S.R., Environmental Studies, Asia Law House, Hyderabad, 2008, p.no.617.
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our own population and reduce the consumption of resources. We cannot

consider development based on the needs of one individual or one of our
societies as sustainable. The foundation of sustainable development is to
protect the integrity of the entire ecosystem and walk by itself. Then we
consider humans, trees, rivers, forests, mountains, and all creatures as a part
of our system, and protecting it as our defense of life, because we all are
connected to it.
Now we have 2 goals according to environmental protection to achieve

sustainable development: the need to maintain the integrity of the first
ecosystem and the need to protect another biodiversity. And in order to fulfill
these goals, everyone's participation is very important. We all are involved in
the fragile system of that earth. It is a matter of committing only one
community or district or state not only in countries of the whole world. And
both of these goals are very different from the economist model.
Now, when we see this development associated with the entire system, then
we have to include the social attitude too. Increasing poverty or damaging the
livelihood of the villagers also results in environmental damage. The main
reason for this is that the displaced family produces more pressure on forests,
organisms and marginal areas. It has adverse effects on women and
consequently affects the physical and mental development of children. In
such a situation, social justice becomes more important than social equity and
gender equity-intergenerational equity because it has more questions related
to ours than yesterday.
Conclusion
In the end, it could be said that it is not enough to understand or discuss with
the view of the economist model, ecologist model and social model for
sustainable. It is also entirely dependent on our ethics, emotion, our education
system and administrative and political will at a large level. The model of
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sustainable development is multi-dimensional and closely associated with

environment. Use and conservation of environment is the basic principle of
sustainable development wherein the nature has to be conserved and protected
carefully with moral obligation to secure natural resources and environment
for future generation. It comprises the sustainability of natural, agricultural
and economic resources and participatory vision of development which
recognizes the environment and natural resources as the foundation of
economic activity.8
The Earth provides adequate resources to meet the needs of all human beings,
but not to cure greed' these expressions have been coming from our
childhood. 9 Talking about the components of sustainable development, we
miss Gandhiji's words, even though none of us can follow them in today's
context. But that lifestyle needs to be seen as the ideals of sustainable
development, and gradually present a precedent in society in our lives and
through our family. The importance of Gandhiji's foresight and his principles
can be realized in today's time. They emphasized the use of friendly resources
and encouraged Khadi Village Industries and Village Swaraj. Our society is
always ready to be a follower of the modernists, but lacking is a proven
leadership.
8
Sen Raj Kumar, Hazra Somnath, Environment Economics and Sustainable Development-
Some Emerging Issues, Deep & Deep Publications, New Delhi, 2011, p.17
9
Ibid p.n. 17-18.
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VIOLATION OF INTERNATIONAL LAW AND

RESPONSIBILITY TO PROTECT
Seenu Tiwari 1
The Responsibility to Protect (R2P or RtoP) is a worldwide political duty
which was embraced via all members of the United Nations at the 2005 World
Summit to avert genocide, war crimes, ethnic cleansing and crime against
humanity23
The standard of the Responsibility to Protect depends on the fundamental

preface that power involves a duty to shield all populaces from mass atrocity
crimes and human rights violations4,5,6.The rule depends on a regard for the
norms and standards of international law, particularly the hidden standards of
law identifying with sovereignty, peace and security, human rights, and armed
conflict7,8
Responsibility to Protect gives a structure to utilizing magnitude that as of

now exist (i.e., mediation, early warning mechanisms, economic sanction,
1
LLM, WBNUJS.
2 "Responsibility to Protect – Office of The Special Adviser on The Prevention of Genocide".
www.un.org. Retrieved 2016-03-21.
3 "About the Responsibility to Protect". www.globalr2p.org. Retrieved 2016-03-21
4 "Mission Statement". United Nations: Office of the special adviser on the prevention of
genocide.
Retrieved 2012-01-07
5 "Sovereignty as Responsibility". The Brookings Institution. Retrieved 2016-03-21.5^ Jump
up to:a b "The
Responsibility to Protect: Report of the International Commission on Intervention and State
Sovereignty" (PDF). ICISS. December 2001
6 http://otago.ourarchive.ac.nz/handle/10523/2279. (Judson 2012).
7 Hehir, Aidan; Cunliffe, Philip, ed. (2011), "Chapter 7, The responsibility to protect and
international law", Critical Perspectives on the Responsibility to Protect: Interrogating

Theory, Practice, New York, NY: Taylor and Francis e-Library, pp. 84–100, ISBN 0-203-
83429-1
8 Hehir, Aidan; Cunliffe, Philip, ed. (2011), "Chapter 7, The responsibility to protect and
international law", Critical Perspectives on the Responsibility to Protect: Interrogating

Theory, Practice, New York, NY: Taylor and Francis e-Library, pp. 84–100, ISBN 0-203-
83429-1
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and section VII powers) to counteract monstrosity violations and to shield

regular folks from their event. The specialist to utilize the utilization of power
under the system of the Responsibility to Protect rests exclusively with United
Nations Security Council and is viewed as a measure of last resort8. The
United Nations Secretary-General has distributed yearly reports on the
Responsibility to Protect since 2009 that develop the measures accessible to
governments, intergovernmental associations, and common society, and also
the private segment, to avoid barbarity crimes9,10,9,10,11,12,13,14
The Responsibility to Protect has been the subject of significant open

deliberation, especially with respect to the execution of the rule by different
on-screen characters with regards to nation particular circumstances, for
illustration, Libya, Syria, Sudan and Kenya, among different cases
i.e,15,16,17,18,19,20It has likewise been argued that equivalent to the obligation
9 "Early warning, assessment and the responsibility to protect: Report of the Secretary-
General (2010)" (PDF). GCR2P.
10 "The role of regional and sub-regional organizations in implementing the responsibility to
protect: Report of the Secretary-General (2011)" (PDF). GCR2P.

11 "Responsibility to Protect: Timely and decisive response: Report of the Secretary-General
(2012)" (PDF).
GCR2P
12 "Responsibility to protect: State responsibility and prevention (2013)" (PDF). GCR2P
13 "Fulfilling our collective responsibility: international assistance and the responsibility to
protect: Report of the Secretary-General (2014)" (PDF). GCR2P

14 "A vital and enduring commitment: implementing the responsibility to protect: Report of
the SecretaryGeneral (2015)" (PDF). GCR2P

15 Libya and the Responsibility to Protect". Council on Foreign Relations. Retrieved 2016-
03-21
16 "R2P down but not out after Libya and Syria". openDemocracy. Retrieved 2016-03-21
17 "Debating the Responsibility to Protect in Libya, Syria". ICRtoP Blog. Retrieved 2016-03-
21
18 Tutu, Desmond (2008-11-09). "Taking the responsibility to protect". The New York Times.
ISSN 03624331. Retrieved 2016-03-21.

19 "The 'Responsibility to Protect' at 10". E-International Relations. Retrieved 2016-03-21
20 Brockmeier, Sarah; Stuenkel, Oliver; Tourinho, Marcos (2016-01-02). "The Impact of the
Libya Intervention Debates on Norms of Protection". Global Society. 30 (1): 113–133. ISSN
13600826. doi:10.1080/13600826.2015.1094029.
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to secure, global law should likewise perceive a privilege for populaces to

offer militarily sorted out imperviousness to ensure
8 "Paragraphs 138-139 of the 2005 World Summit Outcome Document"

(PDF). GCR2P.
9 "Office of The Special Adviser on The Prevention of Genocide".

www.un.org. Retrieved 2016-03-21
10 "Implementing the Responsibility to Protect: Report of the Secretary-

General (2009)" (PDF). GCR2P.
themselves against genocide, crimes against humanity and atrocities on a

huge scale2122
Evolvement of Principal Of Non-Intervention

THE INTERNATIONAL COMMUNITY in the most recent decade over and
again made a wreck of dealing with the many requests that were made for
"compassionate mediation" i.e "humanitarian intervention" : coercive activity
against a state to ensure individuals inside its outskirts from misery grave
mischief. There were no concurred rules for taking care of cases, for example,
Somalia, Bosnia, Rwanda, and Kosovo toward the begin of the 1990S, and
there stay none today. This understanding proceeds about whether there is a
21 Jan Hessbruegge, Human Rights and Personal Self-Defense in International Law, Oxford
University Press (2017), Ch.
22 ,
https://books.google.it/books/about/Human_Rights_and_Personal_Self_Defense_i.html?id
=_6muDQAA QBAJ&redir_esc=y
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privilege of intercession, how and when it ought to be worked out, and under
whose authority
In the interim, the level headed discussion about mediation for human security
purposes has not left. Furthermore, it won't leave insofar as human nature
stays as frail as it is and inward clash and state disappointments remain as
predominant as they may be. The level headed discussion was absolutely an
enthusiastic one all through the 1990s. Debate may have been quieted for the
situation of the mediations, by fluctuating throws of performing artists, in
Liberia in 1990, northern Iraq in 1991, Haiti in 1994, Sierra Leone in 1997,
and (not entirely coercively) East Timor in 1999. However, in Somalia in
1993, Rwanda in 1994, and Bosnia in 1995, the UN move made (if taken at
all) was broadly seen as short of what was expected, misconstrued,
ineffectively resourced, clumsy, or the greater part of the above. Amid
NATO'S 1999 mediation in Kosovo, Security Council individuals were
forcefully separated; the lawful defense for activity without UN consent was
stated yet to a great extent unargued; and incredible second thoughts
encompassed the implies by which the partners pursued the war
After short time reports again came from some place of slaughters, mass
starvation, assault, and ethnic cleansing. And afterward the inquiry will
emerge again in the Security Council, in political capitals, and in the media:
What do we do? This time around the international community must have the
appropriate responses23.Few things have accomplished more damage to its
common perfect that individuals are all equal in worth and pride than the
23
In September 2000, the government of Canada established the ICISS. Our col leagues were
Gisele Cote-
Harper, Lee Hamilton, Michael Ignatieff, Vladimir Lukin, Klaus Naumann, Cyril
Ramaphosa, Fidel Ramos,
Cornelio Sommaruga, Eduardo Stein, and Ramesh Thakur. We met as a commission in
Africa, Asia, Europe, and
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failure of the group of states to keep these repulsions. In this new century,
there must be no more Rwandas
The United Nations Charter, at Article 2, passage 7, expresses the

accompanying:
Nothing contained in the present Charter might approve the United Nations
to intercede in issues which are basically inside the domestic jurisdiction of
any State or might require the Members to submit such issues to settlement
under the present Charter; be that as it may, this rule might not bias the use
of authorization measures under Section VII»
This passage systematized a rule that for a considerable length of time

represented the relations among States. The States were sovereign over their
domain and over the populace dwelling in that domain. They delighted in
boundless opportunity of activity inside their area, and the privilege to
practice power of government in a selective way. No other State had the
privilege to intercede into domestic jurisdiction of other of another state.
After many years of San Francisco conference the sphere of sovereignty was
made clear as one of the important aspect for nations and UN which could be
abused as a shield behind which mass brutality could be caused on populaces
with exemption. This led to the origin of humanitarian intervention; the act of
the Security Council is based on another understanding of Article 39 of the
Charter, as indicated by which universal peace and security can be debilitated
not just by demonstrations of animosity, yet in addition by circumstances of
philanthropic crisis.
As in case humanitarian crisis - danger to peace, the Security Council has the
ability to embrace such measures as are predicted in Chapter VII, i.e. those
not inferring the utilization of power (Article 41) and furthermore those
suggesting the utilization of equipped power (Article 42). Starting with the
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instance of the Iraqi restraint against Kurds and Shias in 1991, the Security
Council has demonstrated a propensity to build up an immediate association
between danger to peace and security of the fundamental human rights, and
to legitimize a mediation on the ground of gross infringement of these rights.
North America and consulted comprehensively in Latin America, the Middle

East, Russia, and China. This article is a distillation of the report
World summit of 2005
To commend sixty years of the United Nations, a World Summit occurred in

2005; it was one of the biggest social occasions of Heads of State and
government in history. There were extreme and argumentative considerations
on various issues. The meeting delivered a boundless archive, the Summit
result, received by the General Assembly in its Resolution 60/1. The new and
progressive origination of the obligation to ensure (in the future R2P) is
contained in two essential sections, 138 and 139, which for their significance
we cite here beneath:
138. «Each singular State has the obligation to shield its populaces from
genocide, war crimes, ethnic cleansing and crime against humankind. This
obligation involves the counteractive action of such wrongdoings, including
their affectation, through proper and important means. We acknowledge that
obligation and will act as per it. The global group should, as proper, urge
and help States to practice this obligation and bolster the United Nations in
building up an early cautioning capability
139. «The worldwide group, through the United Nations, likewise has the
obligation to utilize suitable political, philanthropic and other quiet means,
in agreement with Chapters VI and VIII of the Charter, to shield populaces
from genocide, war crimes, ethnic cleansing and crimes against humanity. .
In this specific circumstance, we are arranged to make aggregate move, in a
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convenient and definitive way, through the Security Board, as per the
Charter, including Chapter VII, on a case-by-case premise and in
participation with applicable local associations, as fitting, should quiet
means be lacking and national experts are clearly neglecting to secure their
populacesfrom genocide, atrocities, ethnic purging and wrongdoings against
humankind. We stretch the requirement for the General Assembly to proceed
with thought of the obligation to ensure populaces from genocide, atrocities,
ethnic purifying and violations against mankind and its suggestions,
remembering the standards of the Charter and worldwide law. We too plan
to confer ourselves, as important and proper, to helping States fabricate limit
to ensure their populaces and to helping those which are under worry before
emergencies and clashes break out».
In view of existing international law, concurred at the most abnormal amount

and embraced by both the General Assembly and the Security Council, the
arrangements of passages 138 and 139 of the Summit result characterize the
definitive system inside which Member States, regional arrangements and
the UN framework and its accomplices can try to give a doctrinal, political
and institutional life to R2P.
If the international community is to respond to this challenge, the whole

debate must be turned on its head. The issue must be reframed not as an
argument about the "right to intervene" but about the "responsibility to
protect." And it has to be accepted that although this responsibility is owed
by all sovereign states to their own citizens in the first instance, it must be
picked up by the international community if that first-tier responsibility is
abdicated, or if it cannot be exercised.
Three pillars of R2P

The Responsibility to Protect comprises of three vital and commonly
fortifying pillars, as verbalized in the 2009 Report of the Secretary-General
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on the issue, and whose edifice is paragraphs 138 and 139 of the 2005 World
Summit Outcome Document and the intergovernmental consent to the
principle: Pillar I: The protection responsibilities of the state; pillar II:
International assistance and capacity-building;
Pillar III: Timely and decisive response.24
The idea of sovereignty as responsibility

The idea of sovereignty as obligation was communicated by a gathering of
researchers towards the finish of last century25. They underscored that
sovereignty involved continuing commitments towards one's country men,
and certain worldwide benefits. The State, by satisfying fundamental
protection commitments regarding human rights, would have far less
motivation to be worried about unwelcome mediation from abroad.
It is fascinating to review that in 2000, five years previously the World

Summit, the Constitutive Act of the African Union gave, in Article 4 (h), for
«the right of the Union to intercede in a Member State in accordance with a
choice of the Get together in regard to grave conditions, to be specific
atrocities, genocide and violations against humanity». It made an
unmistakable refinement between Member States, which were not to meddle
in the inward undertakings of another (Article 4, g), and the Union, which
could do as such in light of the three grave conditions as stated above.
Protective action of R2P

still, in a few sections of the world there are still apprehensions about the new
originations. It ought to consequently be certain that the R2P is a partner of
sovereignty, not an enemy. It develops from the positive and certifiable
thought of sovereignty as duty, instead of from the smaller thought of
24
"United Nations Official Document". www.un.org. Retrieved 2016-03-21
25
Francis M. Deng et al., Sovereignty as responsibility: conflict management in Africa,
Washington D.C., Brookings Institution Press, 1996.
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philanthropic mediation. By helping States to meet their centre assurance

obligations, the R2P tries to reinforce power, not debilitate it. It looks to help
States to succeed, not simply to respond when they fizzle.
To ensure a successful preventive and protective action by Member States

through the Un, early warning and assessment are a necessary preliminary.
This would require the timely flow to Un decision makers of accurate,
authoritative, reliable and relevant information about the incitement,
preparation or perpetration of the four specified crimes, and the capacity for
the Un Secretariat to assess that information and to understand the patterns of
events properly within the context of local conditions.
The execution of international norms in domestic jurisdiction

The R2P is, in any case, a matter of State obligation, on the grounds that the
security of populaces is a characterizing characteristic of sovereignty and
statehood in the XXI century. The international community can play
important role. Here of approach, as in such a large number of others, the UN
relies upon the quality what's more, assurance of its sovereign Member States.
In an inexorably related world, they, thus, need to move from character based
legislative issues to the successful administration of assorted variety through
the rule of non-separation what's more, the equivalent pleasure in rights.
Capable sovereignty depends on the legislative issues of consideration, not
avoidance. This involves the working of organizations, limits and practices
for the valuable administration of the strains so regularly related with the
uneven development or quickly changing conditions that show up to profit a
few gatherings more than other.
To guarantee this productive administration it must be longed that those States

which up 'til now did not do as such, progress toward becoming gatherings to
the significant worldwide instruments on human rights, universal
philanthropic
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law and refugee law, as well with regards to the Rome Statute of the
International Criminal Court. These centre universal norms should be
exemplified in national enactment, so that the four indicated wrongdoings and
infringement and their actuation are criminalized under domestic law and
practice. To this end, States can look for specialized help from different
sources on the creating of enactment or the foundation of dependable
checking gatherings or autonomous national foundations to help direct the
usage of pertinent global human rights and humanitarian standards. Since
1996 the International Committee of the Red Cross (Icrc) has set up the
Advisory Service on International Humanitarian Law, which in addition to
other things has energized the confirmation of philanthropic traditions,
encouraged State-toState learning forms, helped the joining of global
compassionate models into national law, urged States to set up national
systems on universal philanthropic law, and gave instructive materials on
these standards and traditions. The Icrc has moreover directed the Reducing
Discrimination Initiative
R2P in practice: To meet the state responsibilities

via referring sections 138 and 139, it comes about that the help to States is a
critical component. This help could comprise in urging States to meet their
obligations; helping them to practice these duties; helping them to construct
their ability to ensure; helping States before emergencies and during crises;
and, comprehensively, helping States to achieve its objective of good
administration, whose components are the rule of law, a capable and
independent judiciary, human rights, security reforms, an aware society, an
autonomous press, a political culture that favours tolerance
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Some of the illustrations where R2P was made into practice are :
Kenya 2007/2008:
In 2007 after the result of disputed presidential election was out widespread
violence erupted which led to the death and displacement of civilians.
Minister of other foreign country made an appeal to the UN Security Council
in January 2008 to react "in the name of the responsibility to protect" . United
Nations intervened and Ex SG of UN was appointed mediator which led to
the resolving of dispute. This immediate and instant reaction by the
international community was praised by Human Rights Watch as "a model of
diplomatic action under the 'Responsibility to Protect' principles".
Libya 2011:
In Libya to curb down widespread and systematic attacks on the civilians the
Security Council while referring to R2P unanimously adopted resolution
1970 to end the violence and imposed series of international sanction. Further
the Security Council demanded an immediate ceasefire in Libya, including
an end to ongoing attacks against civilians.
Ivory Coast 2011:
: Similarly in ivory coast to curb the escalating violence amongst the
population the sc adopted resolution 1975 to condemn the human rights
violation. The resolution cited that the primary responsibility of each State is
to protect civilians and reaffirmed that the United Nations Operation in Ivory
Coast (UNOCI) could use "all necessary means to protect life and property."
Further to protect the people of Ivory Coast from further atrocities, UNOCI
also used military operation. The prez was tried at the icc for crimes against
humanity.
Syria:
Over the past many years there has been a constant conflict in Syria which
has led to the death of millions of people. Syria’s Commission of Inquiry's
third report had stated that the government had committed the crimes against
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humanity through extermination, murder, rape and other forms of sexual

violence, torture, imprisonment and enforced disappearance and other
inhuman acts. To stop these atrocities UN, EU, League of Arab states and
other countries came to a conclusion that full implementation of UN SC
resolution 2254 was required to help those in need Yemen:
Due to the current armed conflict, many civilians are facing mass atrocities
in Yemen because of violence between pro-government forces and regional
military. In addition to the violence between these groups the nation also been
seeing Saudi-led air strikes for months which has led to a large no. Of death.
Due to all these disturbances Yemen in unable unable to uphold its
responsibility to protect its citizens and is in need of other member states
support.
Burundi:
Due to the ongoing political violence, The civilians of Burundi face the
serious and eminent risk of mass atrocities. The citizens of Burundi are being
harmed through mass atrocity crimes due to targeted killings, widespread
violations and abuses of human rights. for this country to become stable again
it is crucial for the country to uphold its R2P.
The last resort: Military intervention

THE RESPONSIBILITY to secure suggests an obligation to respond to
circumstances in which there is convincing requirement for human security.
if preventive intervention fails then only other state is allowed to interfere and
that too with consent of respective state. Coercive measures at that point may
incorporate political, financial, or legal strides. In outrageous cases-yet as it
were extraordinary cases-they may likewise incorporate military activity. But
the question arises about existence of extreme case, where should we adhere
to a meaningful boundary in deciding at the point when military mediation is
faultless? What different conditions or limitations, assuming any, ought to
apply in deciding if and how that intercession ought to continue?
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Furthermore, most troublesome of all, who ought to have a definitive

specialist to decide if an interruption into a sovereign state, including the
utilization of fatal power on a possibly huge scale, ought to really proceed?
These inquiries have created a colossal writing and much contending
phrasing, yet on the centre issues there is a lot of shared conviction, the
majority of it inferred from "just war" hypothesis. To legitimize military
intercession, six standards must be fulfilled: the "just cause" threshold, four
precautionary principles, and the requirement of "right authority."
Just cause: There must be "serious and irreparable harm occurring to human
beings, or imminently likely to occur".
Right intention: The main intention of the military action must be to prevent
human suffering.
Last resort: Every other measure besides military invention has to have
already been taken into account. (This does not mean that every measurement
has to have been applied and been shown to fail, but that there are reasonable
grounds to believe that only military action would work in that situation.)
Proportional means: The military means must not exceed what is necessary
"to secure the defined human protection objective".
Reasonable prospects: The chance of success must be reasonably high, and

it must be unlikely that the consequences of the military intervention would
be worse than the consequences without the intervention.
Right authority: The military action has to have been authorized by the
Security Council.
July 2011: Discussions in United Nation

In July 2011, the President of the General Assembly gathered a casual
intuitive discourse on the part of regional and sub-regional arrangements in
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executing the R2P. (It must be reviewed that regional and sub-regional
arrangements can make a move under Article 53 of the Charter, with the
earlier approval of the Security Council).
The Italian delegation showed its support on July 12, for operation and union
of the R2P, a foundation of international relations: «It guides our aggregate
endeavours to advance peace, security and human rights. It affirms the
profound awareness the international community is creating and its
obligations towards regular citizen populace.
The Eu proclamation went ahead to take note of that military intercession

stays just an alternative of final resort. Other and serene means exist to react
to a legislature's inability to practice its obligation to secure its own populace.
Political and strategic effort can help building accord and putting pressure on
governments to convey on their obligations. Provincial associations are
exceptionally set to channel such endeavours and to give authenticity.
Intercession and exchange exercises, for example, in Kenya in 2008, are
valuable intends to bring down the danger of heightening while building an
economical political process. In this specific situation, the Eu is occupied with
working up its own intervention and in addition in supporting the Un in its
own effort. The utilization of focused endorses and arms embargoes can
contribute to the endeavours of the universal group to guarantee that
governments meet their universal commitments. Territorial associations
moreover have a part in this field and can add to the successful usage of
sanctions.
January 2012: Stanley Foundation Meet

meeting inaugurated by Stanley foundation on R2P was made successful via
coordination of Mac Arthur foundation in NEW YORK in which valuable
words were presented by Ban Ki Moon, secretary general of United Nations
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He addressed that concept of R2P has saved more than thousands live
worldwide in numerous crisis situations such as genocide, crime against
humanity, war crimes etc. and also he cited the examples of Libya, Yamen,
Ivory coast,South Sudan etc where R2P was proved to be successful with
coordination of African union and with economic community of south
African stated [ecowas].however he did not hesitate stating the failure of its
action in south Sudan which was because of financial constraints. He also
cited the example of Syria when security council was divided and Arab league
was also not proved to helpful. However, UN did better in Kenya, Kirghizstan
and Guinea.
September 2012: Ministerial Meet
Among different gatherings and boards on the R2P we might want to specify
the Ecclesiastical Meeting held in New York on September 28, 2012 under
the chairmanship of Dr. Simon Adams, Executive Director of the Global
Centre for the R2P. To stretch the significance of the subject for Italy, the
nation was spoken to in the meeting by Dr. Staffan de Mistura, Under-
Secretary of State for foreign Affairs.
He reviewed his own involvement in contention and went on to underscore

the significance of intercession for the prevention of conflict, as well as the
part of regional mechanisms of assurance of human rights. He too educated
the members that Italy had as of late organized a point of convergence for
R2P in the system of the Italian Ministry for Foreign Affairs.
Conclution
Each branch of human learning has an 'out of date quality remainder', which
means the number of years after which our insight into a subject, if not always
refreshed, is decreased to zero. For science and drug the remainder is high;
for legitimate issues, it was low. However, things are quickly changing
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additionally in the area of universal law, which customarily was slower in

conceding new ideas, inferable from the considerable reasonability and
mindfulness of the States. Presently those locked in in this interest must adjust
rapidly, and the R2P is a clear case. Perhaps, soon it will be systematized and
have its spot among the essential traditions of codification that guide the life
of the universal group. The precept and the statute won't bomb in this
incredible undertaking
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INTERPRETATION OF STATUTES: LIBERAL RULE AND

MISCHIEF RULE
Mayank Sahani 1
Introduction:
STATUTE law is the will of the Legislature; and the object of all judicial
interpretation of it is to determine what intention is conveyed, either expressly
or by implication, by the language used, so far as it is necessary for
determining whether the particular case or state of facts presented to the
interpreter falls within it. When the intention is expressed, the task is one of
verbal construction only; but when as occasionally happens, the statute
express no intention on a question to which it gives rise, and on which some
intention must necessarily be imputed to the Legislature, the interpreter has
to determine it by inference grounded on certain legal principle2, and the
interpreter can't sweep the authoritative boundary or exceeds the limitations
to interpreting any such statute.
The court has been provided by an authority to interpret the statute, after the
application of the requisite principles, made it necessary to construe in order
to fulfill the legislative intent of the legislature. But along with such power,
there has been a limitation on the usage of such power, which they must bear
in mind while such interpretation. As the constitution provides a separation
of power in between the three bodies respectively and intended to restrict
them from takeover or extends one power to another, which is the essence of
the constitution.
Courts have various rules through which they can interpret the mischief in the
statute and finally provides the remedy. The object of all such rules or
principles is to ascertain the true intent, meaning, and spirit of every statute.
A statute is designed to be workable, and the interpretation thereof by a court
1
BA+LLB (H), Galgotia University.
2
PETER BENSON MAXWELL, INTERPRETATION OF STATUTES, 01 (12nd ed. 2010)
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should be to secure that object unless crucial omission or clear direction

makes that unattainable.
One such rule is liberal interpretation and mischief rule of interpretation

which has the same object as of other rules i.e. to ascertain the legislative
intent of the legislature by clarifying the mischief and presenting the remedy.
The court uses such rule of interpretation when they’ll find the fact and
circumstances of the statutes are requisite for applying these rules. But before
applying such principle the court must read the statute as a whole and if they
found any anomalies or obiter in the statute, only then they use the instrument
of interpretation.
Historical background & meaning of interpretation of statutes:
Webster’s New World Dictionary gives the meaning of the word

‘interpretation’ as ‘the act or result of interpreting; explanation, meaning,
translation, exposition etc.’ and that of ‘construction’ as ‘the act or process of
construing, the way in which something is constructed. Lastly Webster
defines ‘statutory, as fixed, authorized or established by statute. Therefore,
by statutory interpretation we mean explanation, meaning, translation, or
interpretation of statutes or enacted laws. Although the enacted laws are
drafted by the legal experts and there is hardly any room for interpretation or
construction but very often the courts and lawyers have to unfold the
meanings of ambiguous word, expressions and resolve inconsistencies3. The
rules of interpretation come into play only if there is any doubt with regard to
the express language used. Where the words are unequivocal, there is no
scope for importing any rule of interpretation. Basic rule of interpretation is
that plain words of the statute must be given effect to and the question of
3
Dr. AVATAR SINGH & Dr. HARPREET SINGH, INTRODUCTION TO THE
INTERPRETATION OF STATUTES 01-02 (3rd ed. 2012)
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applying strict or liberal interpretation would arise only in case of ambiguity.

Courts should avoid a construction which would reduce the legislation to
futility4.
So the task of interpreting the laws by finding out what the legislature meant
is allotted to the courts. Now, if one person puts into words the thoughts of
another (as the draftsman puts into words the thoughts of the legislature) and
a third person (the court) is to find out what they meant, more difficulties are
bound to crop up. The draftsman may not have caught the spirit of the
legislation at all; the words used by him may not adequately convey what is
meant to be conveyed; the words may be ambiguous; they may be words
capable of being differently understood by different persons. How are the
courts to set about the task of resolving difficulties of interpretation of the
laws? The foremost task of a court, as we conceive it, in the Interpretation
of Statutes, is to find out the intention of the legislature. Of course, where
words are clear and unambiguous no question of construction may arise. Such
words ordinarily speak for themselves. Since the words must have spoken as
clearly to legislators as to judges, it may be safely presumed that the
legislature intended what the words plainly say. This is the real basis of the
so-called golden rule of construction that where the words of statutes are plain
and unambiguous effect must be given to them. A court should give effect to
plain words, not because there is any charm or magic in the plainness of such
words but because plain words may be expected to convey plainly the
intention of the Legislature to other as well as judges. Intention of the
legislature and not the words is paramount. Even where the words of statutes
appear to be prima facie clear and unambiguous it may sometimes be possible
that the plain meaning of the words does not convey and may even defeat the
intention of the legislature; in such cases there is no reason why the true
intention of the legislature, if it can be determined, clearly by other means,
4 I.d. at 2-3.
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should not be given effect. Words are meant to serve and not to govern and
we are not to add the tyranny of words to the other tyrannies of the world.5
All judges follow a simple rule: when the statute is clear, apply it. But people
rarely come to court with clear cases. Why waste time and money? People
come to court when the texts are ambiguous, or conflict, or are so old that a
once-clear meaning has been lost because of changes in the language or legal
culture. No simple approach to these issues will be possible, because words
are not born with meanings. Words take their meaning from contexts, of
which there are many other words, social and linguistic conventions, the
problems the authors were addressing. Texts appeal to communities of
listeners, and we use them purposively. The purposes and so the meaning,
will change with context and over time6.
Words spoken or written are the means of communication. Where they are
possible of giving one and only one meaning there is no problem. But where
there is a possibility of two meanings, a problem arises and the real intention
is to be sorted out. It two persons communicating with each other are sitting
together; they can by subsequent conversation clear the confusion and make
things clear. But what will happen if a provision in any statute is found to
convey more than one meaning? The Judges and the Lawyers whose duty it
is to interpret statutes have no opportunity to converse with the Legislature
which had enacted a particular statute. The Legislature, after enacting statutes
becomes functus officio so far as those statutes are concerned. It is not their
function to interpret the statutes. Thus two functions are clearly demarcated.
Legislature enacts and the Judges interpret7.
5
Girdhari Lal & Sons vs Balbir Nath Mathur & Ors, 1986 SCR (1) 383(India)
6
Frank H. Easterbrook, "Text, History, and Structure in Statutory Interpretation," 17
Harvard Journal of Law and Public Policy 61-01 (1994)
7
Justice A.K. Srivastava, Interpretation of Statutes, J.T.R.I. JOURNAL – First Year, Issue
– 3 - Year – July – September, 1995, 01
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Therefore in the nutshell, the legislative body when enacting any law or
statute must bear in mind with a precision of its applicability over a certain
domain or boundary and its effect on the citizens. But it’s not always possible
that the intention of the legislature must reflected in that statute, and creates
the problem or rather develop confusion of the applicability of that statute,
and there comes the need of interpretation, done by the judges; which confers
on the judiciary a legislative power to rectify the ambiguity or repugnance in
that statutes, but they must be careful to not cross the line which differentiates
them from the legislature. While interpreting, their job is only to diminish the
repugnancy which makes or reflect the hindrance of the legislative intent of
the legislature.
Intention of legislation:
A Statute is an edict of the legislature. Interpretation of statutes is the

exclusive privilege of the constitutional courts, and the interpretive function
of the court is to discover the true legislative intent. The intention of the
legislature can be said to have two main aspects; the first aspect is that of the
‘meaning' which tells what the word means. The second aspect includes the
concept of ‘purpose and object' which means the purpose and object of
enacting the statute. Therefore it can be said that the process of construction
combines both literal and purposive approaches.8The text of the statute taken
as a whole is the most important material for ascertaining both the aspects of
the ‘intention’. In the words of Mukherjee. J ‘each word, phrase or sentence
is to be construed in the light of the general purpose of the Act itself.’9
 There are various rules for construction or interpretation of the statutes

and one such as the ‘Liberal rule of interpretation’ and the ‘mischief
rule.’ But discussing that it is remember that, It is a cardinal principle
8
I.d. at 3-5
9
I.d. at 6
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that “if the language of a statute is plain and simple, one shouldn’t go in
for the interpretation of the statute as it the intention of the legislature is
clear in the statute then there won’t require any interpretation at all,
because if this power is still provided to the court the judiciary prevails
over the legislature which is harmful to the constitution.”
Liberal rule of interpretation:
Whether a statute has to be interpreted strictly or liberally depends not only

upon the nature of the statute but also the situation to which it has to be
applied to. Such construction should be adhered to which will give the
maximum benefit to the one who is wronged and also uphold the legislative
intent while doing so. Statutory interpretation should begin and end with the
text of the statute. But sometimes, the language of the statute can be attributed
with more than one specific meaning. Then the legislative intent behind the
text can be referred to, to draw out the best-suited interpretation of the same.
Since the text of the legislation is the first source of interpretation, it is evident
that a literal reading of the terms precedes any other interpretation methods.
Only if the language of the statute gives rise to some ambiguity as to its
meaning, then the rule of liberal construction should be applied and the one
which accomplishes the legislative purpose or is better suited to the same
should be considered by the Court.10
In case of liberal interpretation of a statute, the construction of the statute is

done in such a way that it enlarges the meaning of the legislation to bring
within its ambit situations or cases which are within the spirit of the statute,
within the mischief the statute was meant to remedy, or which ultimately
gives such a meaning to the statute that the end can be achieved without being
inconsistent to the words of the statute. Such meaning of the statute may or
10
B., Sreya, Literal Interpretation Versus Liberal Interpretation (July 8, 2013). Available at
SSRN: https://ssrn.com/abstract=2290872 or http://dx.doi.org/10.2139/ssrn.2290872
Legal Messenger
may not be directly drawn from the words of the statute, but it clearly
encompasses the intendment of the statute Vis-a-Vis doing justice to the case.
This does not mean that the words should be stretched beyond the scope of
their natural meaning to an extent that they lose their original intent; neither
does it advocate an extension of a provision which is already clearly and
unambiguously worded and fit for the case to be applied to11.
Importance of context:
To understand the concept of ‘context' under the liberal construction, the

example of the Civil Rights Act can be cited, which was enacted to prevent
untouchability. Now, the context of untouchability has changed and more
non-traditional forms of the same have emerged. To address this context, the
law needs to be interpreted or changed accordingly. Even in case of the Sati
(Prohibition) Act, the same definition of sati will not be applicable under the
changed circumstances. Now, if this law is to be applied, the definition needs
to be widened in tandem with the social context. There are certain laws, like
the Anti-sedition laws, which are pre-constitutional laws, but still, find
application in the post-constitutional scenario12.
Application:
There are various enactments which needed the liberal construction of the
statutes such as; Procedural enactments should be construed liberally in such
a manner as to render the enforcement of substantive rights effective. But the
requirements as to the time-Iimit within which an administrative act is to be
performed are to be liberally construed. Provisions ensuring the security of
fundamental human rights must, unless the mandate is precise and
unqualified, be construed liberally so as to uphold the right. This rule applies
to the interpretation of constitutional and statutory provisions alike. Welfare,
11
I.d. at 3
12
I.d. at 6-7
Legal Messenger
social and beneficial statutes are not to be construed strictly. Doubts are
resolved in favor of the class of persons for whose benefit the statute is
enacted. On the other hand, penal and taxing statutes and statutes excluding
Court's jurisdiction should be strictly construed13.
“The primary rule of interpretation of statutes may be the literal rule,

however, in the case of beneficial legislation and legislation enacted for the
welfare of employees, workmen, this Court has on numerous occasions
adopted the liberal rule of interpretation to ensure that the benefits extend to
those workers who need to be covered based on the intention of the
Legislature14”.
Cases:
1. Commnr. Of Customs, Mumbai vs M/S. M. Ambalal & Co, 2010 (260)

ELT 487(SC)
“It is settled law that the notification has to be read as a whole. If any of the
conditions laid down in the notification is not fulfilled, the party is not entitled
to the benefit of that notification. The rule regarding exemptions is that
exemptions should generally be strictly interpreted but beneficial exemptions
having their purpose as encouragement or promotion of certain activities
should be liberally interpreted. This composite rule is not stated in any
particular judgment in so many words. In fact, the majority of judgments
emphasize that exemptions are to be strictly interpreted while some of them
insist that exemptions in fiscal Statutes are to be liberally interpreted giving
an apparent impression that they are contradictory to each other. But this is
only apparent. A close scrutiny will reveal that there is no real contradiction
amongst the judgments at all. The synthesis of the views is quite clear that the
general rule is strict interpretation while special rule in the case of beneficial
13
Justice A.K. Srivastava, supra note 5, at 04
14
Commnr. Of Central Excise vs M/S. G. Dayaram & Co, 2003 SC (India)
Legal Messenger
and promotional exemption is liberal interpretation. The two go very well

with each other because they relate to two different sets of circumstances.”
2. Esha Bhattacharjee v. Raghunathpur Nafar Academy, (2013) 12 SCC

649
“There is, it is true, no general principle saving the party from all mistakes of
its counsel. If there is negligence, deliberate or gross inaction or lack of bona
fide on the part of the party or its counsel there is no reason why the opposite
side should be exposed to a time-barred appeal. Each case will have to be
considered on the particularities of its own special facts. However, the
expression ‘sufficient cause’ in Section 5 must receive a liberal construction
so as to advance substantial justice and generally delays in preferring appeals
are required to be condoned in the interest of justice where no gross
negligence or deliberate inaction or lack of bona fides is imputable to the party
seeking condonation of the delay.”
Mischief rule of interpretation:
The rule laid down in Heydon’s case which has now attained the status of a
classic is known as ‘Mischief Rule’. The rule enables considerations of four
matters in construing an act:
 What was the law before making an act?

 What was the mischief or defect for which the law didn’t provide?
 What is the remedy that the act has provided?
 What is the reason of the remedy?
The rule then directs the courts must adopt that construction which shall
suppress the mischief and advance the remedy. When such statute provides
relief against certain mischief, a court shouldn't deny such relief.
Legal Messenger
Mischief Rule is applicable there where language is capable of more than one
meaning. When the question arises as to the meaning of a certain provision in
a statute it is proper to read that provision in its context. The context means
the statute as a whole, the previous state of law, other statute and the mischief
that it was intended to remedy.15As P. N Bhagwati, J says in a case that, It is
a well-settled rule of interpretation that the Court is "entitled and indeed
bound, when construing the terms of any provision found in a statute, to
consider any other parts of the Act which throw light on the intention of the
legislature, and which may serve to show that the particular provision ought
not to be construed as it would be alone and apart from the rest of the Act."
The statute must be read as a whole and every provision in the statute must
be construed with reference to the context and other clauses in the statute so
as, as far as possible, to make a consistent enactment of the whole statute.16
The first and foremost principle of interpretation of a statute in every system

of interpretation is the literal rule of interpretation. The
other rules of interpretation e.g. the mischief rule, purposive interpretation
etc. can only be resorted to when the plain words of a statute are ambiguous
or lead to no intelligible results or if read literally would nullify the very
object of the statute. Where the words of a statute are absolutely clear and
unambiguous, recourse cannot be had to the principles of interpretation other
than the literal rule. The language employed in a statute is the determinative
factor of the legislative intent. The legislature is presumed to have made no
mistake. The presumption is that it intended to say what it has said. Assuming
there is a defect or an omission in the words used by the legislature, the Court
cannot correct or make up the deficiency, especially when a literal reading
thereof produces an intelligible result.
15
Dr. AVATAR SINGH & Dr. HARPREET SINGH, supra note 1 at 77-78
16
Municipal Corporation Of City Of Hubli vs Subha Rao Hanumatharao Prayag & ors
(1976) SCR (3) 883
Legal Messenger
No doubt in some exceptional cases departure can be made from the

literal rule of the interpretation, e.g. by adopting a purposive construction,
Heydon's mischief rule, etc. but that should only be done in very exceptional
cases. Ordinarily, it is not proper for the Court to depart from the literal rule as
that would really be amending the law in the garb of interpretation, which is
not permissible.17
Limitation on courts:
Where the words of an Act are clear, there is no need for applying any of the
principles of interpretation which are merely presumptions in cases of
ambiguity in the statute. The safer and more correct course of dealing with
the question of construction is to take the words themselves and arrive, if
possible, at their meaning without in the first place refer to cases. Where an
ambiguity arises to supposed intention of the legislature, one of the statutory
constructions, the court propounded is the doctrine of reading down.
At page 92 of the Cross Statutory Interpretation, the author has stated that
"The power to add to, alter or ignore statutory words is an extremely limited
one. Generally speaking, it can only be exercised where there has been a
demonstrable mistake on the part of the draftsman or where the consequence
of applying the words in their ordinary or discernible secondary, meaning
would be utterly unreasonable. Even then the mistake may be thought to be
beyond correction by the court, or the tenor of the statute may be such as to
preclude the addition of words to avoid an unreasonable result."18
Cases:
1. Mysore State Road Transport Corporation vs Mysore State Transport

Appellate Tribunal, 1974 AIR 1940
17
Raghunath Rai Bareja & Another vs. Punjab National Bank &Others (2007) 2 SCC 230
18
Delhi Transport Corporation vs D.T.C. Mazdoor Congress (1990) SCR Supl. (1) 142
Legal Messenger
"Purpose and significance of an enactment are to be found after exploring

the short-comings or the defects which were sought to be removed by
means of it by Parliament which does not legislate in vain or without
some reason or need for it. And, as all law, including enacted law, is a
response to a need which has arisen, we have to examine the situation or
the context in which the need for an amendment in it arose by an addition
in it or alteration of it in order to appreciate its true meaning. Law, after
all, is not static. It changes in response to the growing needs it has to
serve so as to advance the public good."
2. Kanwar Singh vs Delhi Administration, 1965 AIR 871
“ It is the duty of the court in construing a statute to give effect to the

intention of the legislature. If, therefore, giving a literal meaning to a
word used by the draftsman, particularly in a penal statute, would defeat
the object of the legislature, which is to suppress a mischief, the court
can depart from the dictionary meaning or even the popular meaning of
the word and instead give it a meaning which will 'advance the remedy
and suppress the mischief.”
Difference between liberal rule and mischief rule:
 Liberal Rule is applicable only when the language of the statute gives
rise to some ambiguity to its meaning, whereas, mischief rule is
applicable there where the language is capable of more than one meaning.
 Both rules of construction are effective only when the plain meaning of
the statute is not capable to determine the true legislative intent behind
that statute i.e. where the wording of a statute is absolutely clear and
unambiguous, the rule of literal construction is to be applied and recourse
to other rules of interpretation is not required.19
19
Dr. AVATAR SINGH & Dr. HARPREET SINGH, supra note 1 at 36
Legal Messenger
 Before adopting any such construction the court is bound to examine the
situation or in which context the need for an amendment in it arose by an
addition in it or alteration of it in order to appreciate its true
meaning,20and still, after such examination, the wording of the language
is ambiguous or its meaning is otiose to the legislative intent then court
have to take such recourse which minimizes the mischief and provides
the remedy.
 In case of liberal interpretation of a statute, the construction of the statute
is done in such a way that it enlarges the meaning of the legislation to
bring within its ambit situations or cases which are within the spirit of
the statute i.e. it act as beneficial construction to promote public good
and intends to cover all such parameters within the ambit of legislature,
but in case of mischief rule of interpretation the court must consider the
fours matters as such for the construction (as discussed above) that means
without fulfilling the four grounds the construction through mischief rule
is not possible.
20
Mysore State Road Transport Corporation vs Mysore State Transport Appellate Tribunal,
1974 AIR 194
Legal Messenger
EMERGING TRENDS IN DIGITAL COPYRIGHT LAW

KEEPING IN FOCUS THE CASE OF DIGITALIZATION OF
BOOKS BY GOOGLE
Gurleen Chawla 1
Krishna Agarwal
Fair Use Doctrine is the doctrine under the law of United States; this doctrine
allows the use of copyrighted material without the requirement of permission
from the author of the material. Fair Use doctrine is one of the most
ambiguous concepts in copyright law. This doctrine provides that certain uses
of copyrighted works do not result in copyright infringement, if the use is for
purposes such as criticism, comment, news reporting, teaching, scholarship,
and research.
Authors Guild Inc v Google Inc2, is a case filed by the association of authors
in the United States alleging infringement of copyright by Google through
creation of a Google-book-search database, Google had started this project of
digitization of millions of books to provide the users with snippets of texts of
the books. Authors guild considered the scanning of their books as
infringement of rights because they did not provide for any compensation to
the authors, in 2013 US circuit judge Denny Chin dismissed the lawsuit and
stated that this use by Google was not infringement as it met the requirements
of the doctrine of fair use, the authors further appealed but to no vain, in
further appeal by authors’ guild the Supreme Court refused to review the case
and thus left the lower court’s decision standing. Google was saved from the
gauntlet of infringement, since it copied snippets of the books which provided
public service without violation of the Intellectual property law. The Doctrine
of Fair Use provides for four factors in determining if the use is fair or not
and these include:
1
Students, ILS Law College Pune.
2
No. 13-4829 (2d cir. 2015)
Legal Messenger
the purpose and character of the use, including whether such use is of a
commercial nature or is for nonprofit educational purposes;
the nature of the copyrighted work;
the amount and substantiality of the portion used in relation to the copyrighted
work as a whole; and
the effect of the use upon the potential market for or value of the copyrighted
work.
Digital Books of Google provide notable public benefits. It provides

advancement of arts and sciences, also maintains respectful consideration for
the rights of authors and other creative individuals, and without adversely
impacting the rights of copyright holders. The commercial and non-profit
nature of Google does not justify the denial of fair use.
The similar concept in India is provided through Section 52 of the Indian

Copyright Act 1957, which provides that using the copyrighted material for
certain purposes does not amount to infringement of Copyright. Here the
Doctrine of Fair dealing is to provide whether the use of the Copyrighted
material amount to infringement or not, the line between the bonafide use of
work and malafide blatant use is very thin. Indian Law unlike US laws
provides an exhaustive statutory list of uses which are considered fair and
otherwise the use leads to infringement of the rights. India has always been
dependent on the cases of UK and US but recently has been actively paying
attention to the concept. A very recent judgment of Delhi High Court is DU
Photocopy case3, the case was filed by the publishers against the Delhi
University and the Photocopy shop which was authorized by the university to
provide photocopies of the segment of the books required by the students as
study material, Delhi High Court denied it to be infringement considering the
3
233 (2016) DLT 279
Legal Messenger
fact that the students would be using the same for educational purposes and
court also provided that if the photocopy shop was not authorized to provide
the same the students would prepare written notes or would themselves take
a copy of the same or click a picture of the same, for this the court says that
the end use being the same and only the means of performing being different
does not amount to infringement. Delhi High court also considered the
economic condition of the students who cannot afford to purchase the books
and thus this case was a great victory for access to education.
With the digitization of India the protection of the rights of the authors
became very difficult because of free and easy access of material to the public;
because of the digital trends it became necessary to expand the ambit of the
Copyright laws because of various ways of reproduction and distribution of
works of the authors. In the era of digitization the techniques which are used
for the protection of the copyrighted works are numerous and are covered
under the head of Digital Rights Management (DRM) which control
duplication, modification and distribution of the original work.
Unquestionably, “Doctrine of fair dealing" is a necessary doctrine, not only
in the Copyright laws but also in fortifying the protection given to the citizens
under Article 19 of the Constitution of India. Indian law related to fair dealing
is a limited and confined one in comparison with the US doctrine of fair use,
which is perhaps more flexible. Nevertheless, the Indian legislators wanted
the law to be more certain and definite and thus a conservative approach is
reflected through the Section 52 of the Indian Copyright Act. Indian Courts
have been referring to the decisions of the US courts regarding the matter of
fair dealing and have adopted a similar approach but it can be evenhandedly
concluded that Indian laws regarding the doctrine of fair dealing needs to be
expanded and modified to make it much more pliable.

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Legal Messenger

Volume 3 | Issue 1 | ISSN-2456-110X 1

LEAKAGE OF ELECTRONIC MEDICAL RECORD – A

Data privacy, also called as information privacy, is the aspect of information

Medical privacy is the practice of maintaining the security and confidentiality

help in making accurate diagnosis of patient’s conditions and in tracing the

Computerized information helps diagnose disease, organize research data and

Electronic Medical Record (EMR):

An Electronic Medical Record is a collection of health information that

EU defined electronic medical record systems as a comprehensive medical

Need for EMR:

(Jan 3, 2018, 12.15 am), https://thewire.in/102349/without-data-security-and-privacy-laws-

documents also characterize paper-based systems and according to one study,

and connectivity, administration and reporting, error reduction , supports

Maintenance of medical records assume significant importance in view of the

Issues related to EMR:

Electronic Medical Record consists of very sensitive health information of

a decade and is expanding increasingly in the health care settings. 22 Though

The Health Insurance Portability and Accountability Act (HIPAA):

The Health Insurance Portability and Accountability Act (HIPAA) is a

effectively mandating broad-based legislation regarding healthcare access,

Prior to HIPAA, no generally accepted set of security standards or general

The Health Insurance Portability and Accountability Act of 1996 (HIPAA)

establishing a national set of security standards (the “Security Rule”) for

The Security Rule defines “confidentiality” to mean that e-PHI is not

participants in EHR systems, such as HDNs and other information sharing

The HIPAA Privacy Rule required covered entities to

There have been significant developments in European Union (EU) data

Right to erasure (Right to be forgotten)

The right to be forgotten means that companies must implement technology

Informed consent criteria:

Tougher security requirements to protect patient data:

This means that the GDPR requires the implementation of appropriate,

Information Technology (IT) Act, 2000

Electronic Medical Record involves a constant exchange of information

Section 43(a) and section 72 of the Information Technology Act provides

activities”. Section 72 generally deals with protection of personal information

Indian Medical Council (Professional conduct, Etiquette and Ethics)

According to this code, doctors must maintain medical records pertaining to

Clinical Establishments Act, 2010

EMR Standards, 2013

In September 2013, the Ministry of Health and Family Welfare notified

standard based system for creation and maintenance of EMRs by healthcare

New Bill on Healthcare Data Privacy and Security

Development in technology which led to the digitization in medical field, is

medical record is prevented, computerized data is a boon to the healthcare

IMPACT OF MEDIA AND INTERNET ON CHILDREN

 Is internet is one of the sources through which a crime can be committed

CHAPTER-1 It talks about different sources of media and internet which

Crimes committed by and against children in influence of media and

 Crimes committed against children

Crimes committed against children

Crimes committed by children

 United Nations Convention On Rights Of Child (1989)

 Optional Protocol on CRC on Sale of Children, Child Prostitution and

 Cyber Crime Convention of the Council of Europe (2001)

 Protection of Children from Sexual Offences Act (2012)

Section 11 of the act is related to cyberstalking, grooming. In this section, it was

 Goa Children’s Act (2003)

 Indian Penal Code (1860)

Section 354A prescribed punishment for three years if someone without

 Information Technology Act (2000)

Limitations of laws and policies