Legal Mirror - V1 - I2 PDF

Legal Mirror 1
Volume-1 Issue-2 ISSN-2454-6216
INTERPRETATION OF LAWS RELATING TO WOMEN
Khushhali Kaura* & Aayush Gupta**
Introduction
Condition of women in India has not been historically very good. As is

evident from Manusmriti, women did not have much rights as compared to
men. Further, the women are physically weaker than men and due to this
fact also, they have been exploited. Due to such continuous unfavorable
treatment, the social status of women has become really bad. That women
are naturally a weaker sex was first acknowledged by US Supreme Court in
the case of Muller vs. Oregon1 1908. In this case, the US SC observed that
due physical structure and performance of maternal functions, women are at
a disadvantage in the society and thus it is society's responsibility to
implement favorable laws to bring them on the same level as men. The
makers of Indian Constitution also understood this fact and have provided
several provisions for elevating the status of women and giving them a level
playing field.
Indian judiciary feel convinced of the need for women's empowerment-by

law and by legal means. The Constitution of India has taken a long leap in
the direction of eradicating the lingering effects of such adverse forces so
far as women are concerned. Our Constitution makes express provision for
affirmative action in favor of women. It prohibits all types of discrimination
against women and lays a carpet for securing equal opportunity to women in
all walks of life, including education, employment and participation.
*College of legal studies, UPES, Dehradun

*College of legal studies, UPES, Dehradun
1
208 U.S. 412
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Constitutional Provisions
The Preamble to the Constitution of India assures justice, social, economic

and political; equality of status and opportunity and dignity to the
individual. Thus it treats both men and women equal.
Article 14:It says that the state shall not deny any person equality before law
and equal protection of law in the territory of India. While this article is
general in nature, it forms the bedrock for all other provisions. The principle
of equality adopted in this article is that "like should be treaded alike". This
is the key principle for a social welfare state to ensure social and economic
equality. The right to equality without the capability and the means to avail
the benefits equally would be a cruel joke on the weaker sections. This
concept of equality permeates throughout the entire constitution. This article
facilitates the existence of other provisions that might seem discriminatory
but are, in fact, not.
Article 15:While article 15(1) prohibits the state from discriminating on the
basis of religion, race, case, sex, or place of birth, art 15(3) allows the state
to make special provisions for women and children. This is important
because as espoused by Art 14, it is imperative for the state to make laws as
per the social condition of various peoples. Art 15 merely elaborates that
same concept and acknowledges that women need special treatment for their
upliftment.
In the case of Yusuf Abdul Aziz vs. State of Bombay2, SC held that section
497 of IPC is valid even though it punishes only the man for adultery and
not the woman even if she has abetted the crime.
Article 16:Art 16 (1) ensures equality in employment in govt. services and

art 16(2) explicitly prohibits any discrimination on the ground of sex among
2
AIR 1954 SC 351
Legal Mirror 3
other grounds. Even though art 16 does not directly contain any provision
specifically for women, in the case of State of AP vs. P B Vijayakumar 3, SC
held that a rule 22A introduced by AP govt. that gave preference to women
over men was valid. SC held that it is not necessary to have a specific
provision in art 16 because such a provision can be made under art 15(3)
itself. It further noted that art 15(3) is a recognition of the fact that for
centuries the women of this country are socially and economically
handicapped. As a result they are unable to participate in the socio-
economic progress of the country on an equal footing. Thus, making special
provisions for women in employment is an integral aspect of 15(3). This
power of art 15(3) is not whittled down any way in art 16.
Article 21:The courts have interpreted very widely the right to life and
personal liberty. In several cases, this article has come to the rescue of
women who have been wronged. In the case of Bodhisatva Gautam vs.
Subhra Chakrabarti4, SC awarded interim compensation to the rape victim.
Soon after that in the case of Vishakha vs. State of Rajasthan5, due to lack of
any specific law, SC gave certain guidelines to prevent sexual harassment of
women in workplace.
Article 23:Prohibits traffic in human beings and forced labor. This has
improved the condition of women in terms of forced prostitution.
Directive Principles
Directive principles of State Policy also contains important provisions

regarding women empowerment and it is the duty of the government to
3
AIR 1995 SC 1648
4
AIR 1996 SC 922
5
AIR 1997 SC 3011
Legal Mirror 4
apply these principles while making laws or formulating any policy. Though
these are not justiciable in the Court but these are essential for governance
nonetheless. Some of them are:
Article 39(a) Urges the state to provide equal right to adequate means of
livelihood to men and women.
Article 39(d) Equal pay for equal work for both men and women.
In the case of Randhir Singh vs. Union of India6, SC held that equal pay for
equal work is a constitutional goal and is capable of being enforced.
Article 39(e) State should ensure that men, women, and children are not
forced into work that is unsuitable to their age or strength due to economic
necessity.
Article 40/Article 243 D provides that 1/3 seats in panchayats shall be

reserved for women.
Article 42 says that the state shall make provisions for securing just and
human working conditions and maternity relief.
Article 44: Due to absence of a uniform civil code, women are routinely
exploited in the name of personal laws promulgated by religions. This fact
was known to the makers of constitution and they urged the states to
implement UCC.
Fundamental Duties
Fundamental duties are enshrined in Part IV-A of the Constitution and are
positive duties for the people of India to follow. It also contains a duty
related to women‘s rights:
6
AIR 1982 SC 879
Legal Mirror 5
Article 51(A) (e)expects from the citizen of the country to promote

harmony and the spirit of common brotherhood amongst all the people of
India and to renounce practices derogatory to the dignity of women.
LEGAL PROVISIONS
Dowry Prohibition Act, 1961 The purpose of this Act is to prevent the
giving or taking of dowry. It not only penalizes this act but also makes the
act of demanding dowry an offence.
The Medical Termination of Pregnancy Act, 1971
This Act provides for the termination of certain pregnancies by registered

medical practitioners and for matters connected therewith or incidental
thereto.
The Hindu Succession Act, 1956 with amendment in 2005
This Act provided for equal inheritance rights to women for the first time. It
abolished the concept of limited estate of women.
The Protection of Women from Domestic Violence Act, 2005
Domestic Violence Act meant 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
therewith or incidental thereto.
The Commission of Sati (Prevention) Act 1987
Its object is to prevent the practice of Sati and the glorification of such an
act. An attempt to commit Sati is also punishable under certain
circumstances.
Legal Mirror 6
Judicial Activism
Judges are applying the discretionary power to provide better justice to

women in the new context of the Socio-Economic conditions. Judiciary has
played an active role in enforcing and strengthening the constitutional goals
towards protection/rights of the women of the land. The courts in India have
tried to interpret laws in consonance with the international treaties and
conventions. Some of the major cases are enumerated below:
 Judiciary has made immense contribution to strike the balance

between discrimination caused to the working women and availing
them of justice against such discrimination. In Air India vs.
Nargesh Meerza7, the Air India and Indian Airlines Regulation
were challenged as violative of Article 14. Regulation 46 provided
that an air Hostess was to retire from service upon attaining the age
of 35 years or on marriage if it took place within four years of her
joining service or on first pregnancy, whichever occurred earlier.
Regulation 47 empowered the Managing Director, at a time beyond
the age of retirement, up to the age of 45 years, if an Air Hostess was
found medically fit. The Supreme court struck down the Regulation
providing for retirement of the Air Hostess on her first pregnancy, as
unconstitutional, void and violative of Article 14.The Court
explained that the Regulation did not prohibit marriage after four
years of joining service and if an Air Hostess after having fulfilled
the first condition became pregnant, there was no reason why
pregnancy should stand in the way of her continuing in service.
After utilizing her service for four years, to terminate her service if
she became pregnant, court said, amounted to compelling the poor
Air Hostess, not to have any children. It thus amounted to interfere
7
AIR 1981 SC 1829
Legal Mirror 7
with and divert the ordinary course of human nature. It was held not
only a callous and cruel act but an open insult to Indian
Womanhood. Court also that said it was not only manifestly
unreasonable and arbitrary but contained the equality of unfairness
and exhibited naked despotism and was, therefore, clearly violative
of Article 14.
 In Vishakha vs. State of Rajasthan8, Vishakha, a non-
governmental organization working for gender equality, had filed a
writ petition seeking the upholding of the fundamental rights of
working women under Article 21 of the constitution. The immediate
reason for the petition was the gang rape of a saathin (a social
worker involved in women‘s development programs) of Rajasthan in
1992.The assault was an act of revenge as the saathin had intervened
to prevent a child marriage. Supreme Court provided a landmark
judgment on the area of sexual harassment against women. As in his
particular aspect there is no law or enactment by the legislature that
is why here the judiciary applied its activist power and provides the
some guide lines. Some of the guidelines are as follows:
1. Duty of Employer or other responsible persons in work places and

other institution to women employees to prevent the commission of acts
of sexual harassment.
2. Court also define sexual harassment. Sexual harassment includes:

such unwelcome sexually determined behavior as:
a) Physical contact and advances;
b) A demand or request for sexual favor;
c) Sexually colored remarks;

8
AIR1997 SC 3011
Legal Mirror 8
d) Showing pornography;
e) Any other unwelcome physical, verbal or non-verbal conduct of

sexual nature.
3. Court also provided guidelines to all employer public or private

for taking preventive steps.
4. What type of criminal proceeding is required for this offence that

is also suggested by the court?
5. Disciplinary action should be taken against the offender.
6. Complaint Mechanism is also suggest by court.
7. Complaint committee is required.
8. There is a need of worker‟s initiative.
9. There is need of awareness among female employees about their

rights.
10. Court provided the guideline in case of third party harassment.
11. Central/ state Government are requested to enact the specific

law in this regard
12. These guidelines will not prejudice any rights available under
the protection of Human Rights Act, 1993.
These directions would be binding and enforceable in law until suitable

legislation is enacted to occupy the field‘‘.
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 In Apparel Export Promotion Council vs. A.K. Chopra9,The

accused –respondent tried to molest a women employee
(Secretary to chairman of a Delhi based Apparel Export
Promotion Council) Miss X. (name withheld), a clerk cum typist
on 12thAugust, 1988 at Taj Hotel, Delhi. The respondent
persuaded Miss ‗X‘ to accompany him while taking dictation
from the chairman, so that her typing was not found fault with.
While Miss ‗X‘ was waiting in the room, the respondent taking
advantage of the isolated place tried to sit too close to her and
touch her despite her objections; and tried to molest her
physically in the lift while coming to the basement, but she saved
herself by pressing emergency button, which made the door lift
open. In appeal Of the case supreme court held that ―In a case
involving charge of sexual harassment or attempt to sexually
molest, the courts are required to examine the broader
probabilities of case and not swayed away by insignificant
discrepancies or narrow technicalities or dictionary meaning of
the expression ‗molestation‘ or ‗physical assault‘. The sexual
harassment of a female employee at the place of work is
incompatible with the dignity and honor of a female and need to
be eliminated and that there can be no compromise with such
violation‖.
 In Railway Board vs. Chandrima Das10,It was a case of gang-

rape of a Bangladeshi national by the employees of the Indian
Railway in a room at Yatriniwas at Howrah station. These
employees managed the ‗Yatriniwas‘ the government contended
9
AIR 1999 SC 625
10
AIR 1998 SC 223
Legal Mirror 10
that it could not be held liable under the law of torts as the
offence was not committed during the course of official duty.
However, Hon‘ble court didn‘t accepted this argument and stated
that the employees of union of Indian, who are deputed to run the
railways and to manage the establishment, including the
Railways station and Yatriniwas are essential components of the
government machinery which carries on the commercial activity.
If any such employee commits an act of tort, the Union
Government of which they are the employees can, subject to
other legal requirement being satisfied be held vicariously liable
in damages to the person wronged by the those employees. The
victim was awarded by Supreme Court with a compensation of
R.s 10 lakhs for being gang raped in Yatriniwas of railway. Since
the right is available to non-citizens also, the reach of the right is
very wide.
 In Mohd. Ahmed Khan vs. Shah Bano Begum11,the judgment

of this case created uproar in Muslim Community. A five Judges
Bench of the Supreme Court declared that a Muslim husband
having sufficient means must provide maintenance to his
divorced wife who is unable to maintain herself. Such a wife is
entitled to the maintenance even if she refuses to live with
Muslim husband because he has contracted another marriage
within the limits of four wives allowed to him by Quran. The
Bench declared that a Muslim divorced woman who cannot
maintain herself is entitled to get maintenance from her former
husband till the time she gets remarried. They rejecting the plea
that maintenance is payable for the iddat period only. Pointing to
11
1985 SCR (3) 844
Legal Mirror 11
the aiyats of the Quran, the Judges declared that the Quran
imposes an obligation to provide maintenance to the divorced
wife. The judges also rejected the contention that deferred Mahr
(dower) is a payment on the divorce of a wife and hence such
payment under the personal law excludes the payment of any
maintenance by the husband in consideration of marriage. They
observed that according to Quran, the dower is a consideration
and mark of respect for the Muslim woman instead of being a
consideration for divorce. The learned judges stated that the
religion professed by spouse has no place in the scheme of
Section 125 Cr. P.C. which is measure of social justice to
prevent vagrancy and destitution. The court held that if there is
any conflict between personal law and Section 125 Cr.P.C. then
it is clear from the language of the Section that it over-rules the
personal law. This judgment created a storm and priests of Islam
started agitation.
 In Bodhisattwa Gautam vs. Subhra Chakraborty12, the

complainant Subhra Chakraborty was a student of the Baptist
College, Kohima and the accused Sri Bodhisattwa was a lecture
in that college. According to the FIR field by the complainant
and cohabited with her, giving her a false assurance of marriage
but also fraudulently went through a certain marriage ceremony
with knowledge and thereby dishonestly made the complainant
before the God he worshipped by putting her vermilion on her
forehead and accepted her as his wife but later refused to
recognize her as his life partner. The said ceremony made the
12
AIR 1996 SC 922
Legal Mirror 12
complainant to believe that she was lawfully married wife of the

accused. In this landmark case the Supreme Court ordered the
accused to pay Rs. 1000 per month as an interim compensation
to the victim of rape during the pendency of the criminal case.
Referring to the pitiable condition of women in society Mr.
Justice Saghir Ahmad observed that unfortunately, a woman in
our country, belongs to class or group of society who are in
disadvantaged position on account of several social barriers and
impediments and have therefore, been victims of tyranny at the
hands of men with whom they, unfortunately, under the
constitution ―enjoy equal status‖. ―Women also have the right to
life and liberty; they also have the right to be respected and
reacted as equal citizens. Their honor and dignity cannot be
touched or violated. They also have the right to lead an
honorable and peaceful life.‖
 In Deelip Singh vs. State of Bihar13, Court held that consent

given a women believing the man‘s promise to marry her would
fall within the expression ‗without her consent‘ vide clause (ii) to
section 375, I.P.C, only if it is established that from the very
inception the man never really intended to marry her and the
promise was a mere hoax. When prosecutrix had taken a
conscious decision to participate in the sexual act only on being
impressed by the accused‘s promise to marry her and the
accused‘s promise was not false from its inception with the
intention to seduce her to sexual act, clause (ii) to section 375
I.P.C. is not attracted and established. In such a situation the
accused would be liable for breach of promise to marry for
13
AIR 2005 SC 203
Legal Mirror 13
which he will be liable for damages under civil law. False

promise to marry will not ipso facto make a person liable for
rape if the prosecutrix is above 16 years of age and impliedly
consented to the act.
 In Madhukar Narayan Mardikar vs. State of Maharashtra 14, The
High Court observes that since Banubi is an unchaste woman it
would be extremely unsafe to allow the fortune and career of a
Government official to be put in jeopardy upon the uncorroborated
version of such a woman who makes no secret of her illicit intimacy
with another person. She was honest enough to admit the dark side
of her life. Even a woman of easy virtue is entitled to privacy and no
one can invade her privacy as and when he likes. So also it is not
open to any and every person to violate her as and when he wishes.
She is entitled to protect her person if there is an attempt to violate it
against her wish. She is equally entitled to the protection of law.
Therefore, merely because she is a woman of easy virtue, her
evidence cannot be thrown overboard.
Observation
Thus, it is observed that not only the legislature but judiciary also plays a
very vital and important role in case of women empowerment. Judiciary
empowers the women by its both traditional and by its activist role. The
traditional role of judiciary is to provide justice through interpretation of
laws. Some times through the wide interpretation of provision of various
legislation and also the provision of constitution judiciary is able to
empower the women. Another role of judiciary is the activist role which is
popularly known as ―Judicial Activism‘‘. Where there is no specific law for
a specific offence in that case judiciary applies its activist power. As our
14
AIR 1991 SC 207
Legal Mirror 14
society is dynamic, the need of the society is also dynamic. Because of the
rigidity of law or because of the long and time taking procedure of
enactments of laws by legislature, it is unable to keep pace with the fast
changing society. There is always a gap between the advancement of the
society and the legal system prevailing in it. This is sometimes causes
hardship and injustice to the people. Now women empowerment is a
burning issue of our country. And this concept is in progress. So, there are
so many areas of women empowerment where there is no law for the
protection of women, in that case judiciary is the last hope. Because only
judiciary can give justice by applying its activist power e.g. we have already
discussed Vishakha‘s case where the question regarding the sexual
harassment of women in working places was raised and on this area there is
no law at that time judiciary by judicial activism declared some guidelines
for the protection of women from sexual harassment of women in working
place. This guideline was provided by Supreme Court in the year of 1997
and the Bill titled as Protection of Women against Sexual Harassment at
Workplace was produced before parliament in 2010 but Bill is still pending.
That means the need of the society is realized by the parliament after 13
years. In case of compensation jurisprudence also there is a need to
compensate the victim but in criminal law there is no such specific law
regarding the compensation jurisprudence. So, it is clear that through
judicial activism judiciary is also able to provide progress in the area of
women empowerment.
Legal Mirror 15
ANTI- TERRORISM LEGISLATIONS:

VIOLATION OF HUMAN RIGHTS- ROLE OF NHRC,
MEDIA AND PUBLIC
Dr.P.Ashok Kumar*
Introduction
The term Human Rights name was first used by Thomas Paine in the
English translation of the French declaration of the Rights of the man and
citizen. The term Human Rights denotes all those Rights which are inherent
in their nature and without which we cannot live as Human beings.
According to Sec.2(d) of the protection of Human Rights Act 1993

Human Rights means those rights relating to Life Liberty equality and
dignity of the Individual guaranteed by the constitution or embodied in the
International Covenants and enforced by courts in India. Human Rights are
essential for the protection of the maintenance of the dignity of Individuals,
and create conditions in which every human being can develop his
personality to the fullest extent may be termed as Human rights.1 D.D.Basu
defines human rights as those minimum rights which every individual must
have against the State or other public authority by virtue of his being a
member of human family irrespective of any other consideration 2. The
framers of the Indian Constitution were influenced by the concept of human
rights guaranteed the most of Human Rights contained in the Universal
Declaration incorporated in Part III and Part IV of the constitution.
Traditionally police has been considered as one of the state agent in

violation Human Rights. It is unfortunate that the code of conduct has not
* Associate Professor, Symbiosis Law School, Hyderabad.

1
Justice P.N. Bhagwati in Maneka Gandhi Vs UOI. Air 1978
2
Humen Rights in Constitional Law D.D. Basu. P-5
Legal Mirror 16
deferred to police officers in violating Human Rights.3 Human Rights are

generally defined as those rights which are inherent in our nature and
contained no specific rights against torture cruel or inhuman treatment and
degrading punishment.
After three decades later in Maneka Gandhi vs.U.O.I4 The SC held that the
Procedure Contemplated under Art 21 of the constitution is just fair and
reasonable and not an arbitrary or oppressive procedure. Police is no doubt
under a legal duty and has a legitimate right to arrest a criminal and to
interrogate him during the investigation of an offence. But it must be
remember that the Law does not permit the use of third degree methods or
torture of accused in custody during investigation and investigating with a
view to solve the crime. 'End cannot justify the means.' The government is
of the opinion that under the ordinary law police does not have the sufficient
powers to deal with terrorist, organized crimes because of the requirement
of producing witnesses. The existing criminal justice system was not
designed to deal with the heinous crimes of terrorism and they are
inadequate to curb or control the menace of terrorism. Therefore the
government decided to enact the anti-terrorism or special legislation with
stringent and deterrent provisions including in certain circumstances power
to intercept wire. Electronic or oral communication to control the terrorism
Bangalore Undoubtedly national security is of paramount importance

without protecting the safety and security of the nation individual rights
cannot be protected. Both national security as well as individual dignity are
the core values of the constitutions and are compatible and not inconsistent.
The need is to balance the two. Any law for combating terrorism and
unlawful activities should be consistent with protection of Human Rights
3
Krishna Mohan Mathur in Indian Police – Role And Challenges 1994
4
AIR 1978 S.C. 248
Legal Mirror 17
and constitution. In order to curb the activities of terrorism the government

of India has passed as many as Anti terrorism legislations like TADA,
POTA, MISA, NSA, MCOCA, and COFEPOSA (Conservation of foreign
exchange and prevention of smuggling activities act. But there was massive
misuse of the provisions of the acts and gross violation of Human Rights.
The national human rights commission and Amnesty International are of the
opinion that the existing laws are sufficient to deal with terrorism. The real
need is to strengthen the machinery for implementation and enforcement of
the existing laws and for this purpose working of the entire criminal justice
system should be strengthened. The Indian constitution was greatly
influenced by the U.D.H.R. (universal declaration of human rights) adopted
on Dec 14, 1948 and the number of fundamental rights granted to
individuals in Part III and IV of the constitution are similar to this
declaration. In Keshavananda Bharathi vs state of Kerala5 the SC observed
that the Universal declaration of Human Rights may not be legally binding
instrument but it shows how India understood the nature of Human Rights at
the time of the constitution was adopted. In chairman Railway board vs
Mrs.Chandramadas6 the SC observed that the declaration has an
international recognition as the "Moral code of conduct have been adopted
by the General Assembly of U.N. the applicability of UDHR and the
principles. In Kishore singh vs state of Rajasthan7 the SC held that the use
of third degree method by police is volatile of Human Rights under Art 21.
The UDHR and UN chapter on Human Rights laid ample emphasis

on life and liberty of all Human beings respective of color creed or sex.
Terrorism and human rights cannot exist together and whenever there was
terrorism there cannot be Human Rights. In democratic country like India it
5
AIR 1973 S.C. 1461
6
AIR 2000 (1) S.C. P265
7
AIR 1981 SC 625
Legal Mirror 18
is necessary to fight the menace of terrorism within the parameters set by

the constitution of India. The preventive detention or Anti terrorism laws are
like the saving drugs which should be administrated whenever the ordinary
medicine fail in our medical kit. When the safety integrity and national
security was threatened such harsh anti terrorism laws were inevitable even
there was same misuse or abuse of these law and violation of Human Rights
by state agencies. The primarily it is the duty of the police to protect the
Human Rights and secondarily the judiciary has to restore these rights or
punish in case of breach or violation. The constitution has provided certain
safeguards under cl (4) to cl(7) of article 22 to the persons arrested under
preventive detention laws like TADA and MCOCA. The protection of
NHRC was enacted in 1993 to provide for the constitution of NHRC, SHRC
and Human Rights courts for better protection of Human Rights on 28th
September 1993. The NHRC has rendered a signal service the cause of
observance of Human Rights especially in the field of liberties custodial
death, violence false encounters by police, abuse or misuse of powers by
police officials and the legislations like TADA, MCOCA, POTA. The
NHRC has taken a number of steps to prevent the violation of Human
Rights by police while implementing the Anti-terrorism laws through
Human Right education training seminar information, communication
technology internet access to preprimary education against the violation of
Human Rights.
Conclusion
Terrorism is anti-human and anti social activities. Combating

terrorism need stringent laws to be implemented meticulously and
expeditiously. The law enforcement agencies should exchange information
and expertise in helping one another to combat terrorism. The violation of
human rights of the citizens are generally in the nature of non-enforcement
Legal Mirror 19
and discriminatory application of laws in the form of unauthorized

detention, torture, harassment, fabrication of evidence
maliciousProsecution. There is an immediate need to redefine the scope and
to implement core recommendations of the National Police Commission
while discharging their duties. The commitment, devotion and
accountability of police have to be only to the rule of law. Transparency of
action and accountability perhaps are the two possible safeguards which the
court must insist to check the abuse or misuse of police power. The anti-
terrorism legislations have neither prevented the occurrence of terrorist act
nor acted as deterrents to the violence. Innocent people rather than terrorist
have been the victim. It was sad reflection on all the governments to think
that only passing the anti-terrorism laws can protect the integrity of the legal
order. Simply passing of the laws is no use unless there should be proper
and effective implementation. The real deficiency was in their
implementation but not on the content. Another thing that the harsher the
law the greater is the threat to life, liberty and human dignity. Any law
combating terrorism should be consistent with the provisions of the
constitution, relevant international instrument and treaties and principle of
necessity and proportionality. The Indian police force and the criminal
justice system were not adequately geared with the growing menace of
terrorism. The criminal justice system was designed to deal with individual
crimes which were unable to deal with the offence of terrorism. Another
main hurdle is the lack of accountability. In this aspect the media ,public
legal professional, judiciary and institutions like Human Rights
Commission, NGO's should act as watch dog against the misuse of these
laws. When the state passes as many as legislation, amendments to the old
laws like unlawful activities, prevention amendment act 2004, 2008
National Investigation Agency Act 2008 it looks like a new wine in the
Legal Mirror 20
of police have to be only to the rule of law. Transparency of action

and accountability perhaps or the two possible safeguards which the court
must insist to check the abuse or misuse of police power. The anti-terrorism
legislations have neither prevented the appearance of terrorist act nor acted
as deterrents to the violence. Innocent people rather than terrorist have been
the victim. It was sad reflection on all the governments to think that only
passing the anti-terrorism laws can protect the integrity of the legal order.
Simply passing of the laws is no use unless there should be proper and
effective implementation. The real deficiency was in their implementation
but not on the content. Another thing that the harsher the law the greater is
the threat to life ,liberty and human dignity. Any law combating terrorism
should be consistent with the provisions of the constitution, relevant
international instrument and treaties and principle of necessity and
proportionality. The Indian police force and the criminal justice system were
not adequately geared with the growing menace of terrorism. The criminal
justice system was design to deal with individual crimes which were unable
to deal with the offence of terrorism. Another main hurdle is the lack of
accountability. In this aspect the media ,public legal professional, judiciary
and institutions like Human Rights Commission, NGO's should act as watch
dog against the misuse of these laws. When the state passes as many as
legislation, amendments to the old laws like unlawful activities, prevention
amendment act 2004, 2008 National Investigation Agency Act 2008 it looks
like a new wine in the old bottle but nothing more than else. Finally all laws
are good and suitable to the people. The real deficiency was in the proper
implementation and enforcement and not on the content. Simply passing of
the new laws are no use unless they are not properly and effectively
implemented by the State Agency Just like the doctor use the life saving
drug in proper time and dose the State agency should use the anti-terrorism
legislation otherwise it may result the misuse , abuse and violation of human
Legal Mirror 21
rights. Prevention of terrorism is not by law alone. It needs the support from
all State agencies and also media, public, NGOs etc. unless otherwise these
institutions will not give their support and mutual cooperation and effective
implementation of any law is not possible Last but not least all State
agencies should be accountable to their work and indeed sanity is needed
rather than insanity in discharging their duties effectively. It is the duty of
State to protect life liberty and dignity individual and to safeguard the
fundamental and human rights along with the security and integrity of
nation. For this purpose the State should enact the stricter and the harsher
laws.
Legal Mirror 22
ATTEMPT TO SUICIDE SHOULD OR SHOULD NOT BE

PUNISHABLE
Aunohita Chatterjee * & Namrata Chakraborty**
“The real reason for not committing suicide is because you always know
how swell life gets again after the hell is over”.
- Ernest Hemingway1
Suicide is a mental state of a person who has been traumatized to such an
extent, that it compels him to end his own life. It has been observed that the
suicide rates have significantly increased all over the world. According to
the International Suicide Statistics2 the global suicide rate is 16 per 100,000
population and the global rate of suicidal death is over one million people
i.e.1.8%per year. It has also been observed that over the past 45 years the
suicide rates have increased to a dramatic 60%.
The Black‘s Law Dictionary has defined suicide as,
“Suicide is the wilful and voluntary act of a person who understands the
physical nature of the act, and intends by it to accomplish the result of
self-destruction”.3
The most common reasons for suicide are depression, psychological
disorder, helplessness, hopelessness, guilt, loneliness, severe pain, abuse,
rejection etc.
The researchers in order to understand the psychology of a person
committing suicide decided to scrutinize 20 suicide notes of both people
*III Semester (2nd Year),BA.LLB,Symbiosis Law School.

**III Semester (2nd Year),BA.LLB,Symbiosis Law School.
1
Ernest Miller Hemingway (July21, 1899 – July 2,1961) was a famous American novelist,
short story writer, and journalist.
2
The International Suicide statistics are made with the help of the mortality database of the
WHO Global Health Estimates for suicide in the Mental Health GHO (Global Health
Observatory).
3
Black's Law Dictionary is the most widely used law dictionary in the United States. It was
founded by Henry Campbell Black . ( http://thelawdictionary.org/suicide/ )
Legal Mirror 23
who could successfully commit suicide and those who attempted to commit
suicide. They were able to discover the silver line that separated both of the
cases. It was observed that the first group made sure to write in details about
how they were of no use to the world anymore and that people would be
much happier without them where as the second group of people didn‘t go
into much details. So it was proven that the only difference between an
‗attempted‘ and a ‗completer‟ is the variation in their sense of burden. All
the other factors like pain, suffering etc remains the same4.
People wish to commit suicide not because of the pain they feel but because
they have lost their will to live. They cannot see a way out and thus they
want a permanent solution for a temporary problem.
Since the ancient times suicide was considered as an offence or crime in
many parts of the world. For instance in Ancient Rome suicide was viewed
as a rebellious act of excessive individual liberty against their rulers. The
idea of laying down laws against suicide was taken from religious doctrines
that professed the right of god to choose who lives and who dies. For
example, in Ancient Athens, an individual dying a suicidal death was not
given the privilege of a ―normal burial‖ and was instead buried far away
from the city with no tombstone to mark them. In Hinduism suicide is
prohibited because it is considered as a spiritual sin as it is against the rules
of ahimsa. The Hindus believe that the person who commits suicide does
not get the privilege of salvation and has to remain in the earth as aghost
forever. In Christianity suicide was considered as a sin because it goes
against the commandment “Thou shalt not kill”5. Suicide was looked upon
as ―self-murder‖ and as an act against gods wish. Similarly in Islam suicide
4
This Para refers to ―Psychological Tensions Found in Suicide Notes: A Test for the Strain
Theory of Suicide‖ - Jie Zhang and David Lester ;Central University of Finance and
Economics, School of Social Development, Beijing, China.
5
Thou shalt not kill (LXX; οὐ φονεύσεις), You shall not murder (Hebrew lo
tirṣaḥ) orYou shall not kill (KJV), is a moral imperative included as one of the
Ten Commandments in the Torah, specifically Exodus 20:13 and Deuteronomy 5:17.
Legal Mirror 24
was viewed as a grave sin as it went against the instructions of Quran which
says “And do not kill yourselves, surely God is most Merciful to you”6.
In fact all the other religions like Jainism, Judaism, and Buddhism etc. share
the same view on suicide.
The ancient philosophers like Plato, Socrates and Aristotle have also
expressed their concern regarding the legality of suicide. Plato opined that
suicide is shameful and that the people engaged in such act should not have
a proper burial. But Plato also predicted 4 exceptions to this rule that can
allow a person to end his life. These rules were based on one‘s morals,
inability to attain salvation, grave misfortune, humiliation and guilt for
unjust actions. Socrates believed that suicide was the act of liberating our
soul from our bodies without the permission of the gods who deliberately
positioned us in it as a form of punishment. Aristotle only discussed that the
act of suicide is an offence against the state or the society. In ancient India
punishment or ―Danda‖7 were given to a person for two reasons .The first
reason was for ―Incapacitation‖ which aimed at ensuring that the same
offence would not be committed again and the second reason was
―Deterrence‖ which was given with the objective of setting a burning
example to avoid such acts in future. Similarly even in cases of suicide just
like every other crime, punishment was given in order to restrain the person
from committing the act again as well as setting a judicial precedent in the
hope of discouraging such offences. In the past the ignorance or the refusal
of one‘s moral duties to others was frowned upon. Thus it was believed that
suicide did not only harm the attempter but also caused psychological and
economic harm to his near and dear ones and sometimes even the whole
community.
6
"And do not kill yourselves, surely God is most Merciful to you."
— Qur'an, Sura 4
7
Daṇḍa (Sanskrit: दण्ड) is the Hindu equivalent of punishment.
Legal Mirror 25
But the scenario changed completely as the world moved towards

modernization especially during the Renaissance. During this period a
renowned English humanist in his book Utopia (1516) wrote that a person
suffering from a disease can “free himself from this bitter life...since by
death he will put an end not to enjoyment but to torture...it will be a pious
and holy action”.8John Donne9 in his work Biathanatos defended suicide
taking evidence from Bible itself mentioning the conduct of Jesus,Samson
and Saul and arguing that suicide can be sanctioned in some cases
depending upon the facts and circumstances. David Hume10 in his essay
“Of suicide” (1783) strongly expressed his opinion against the Thomistic
11
argument of suicide. Hume argued that if we live on earth because of the
duty imposed by god to us as a ―sentinel‖, then the decision to leave and
end our lives, just like any other act of ours happens with his permission and
cooperation. Hume argues that sickness, old age and grave sorrow can make
our living extremely tough and too much to handle so in that case taking our
own life is better, because a miserable existence is worse than death. In the
nineteenth century the view regarding suicide shifted from being a sin to
being a mental illness or insanity in Europe. English Law also started
differentiating between suicide and homicide even though suicide still
amounted to confiscation of one‘s property. And by the 20th century suicide
was no longer considered an illegal affair in the ―western world‖.
8
Sir Thomas More, venerated by Catholics as Saint Thomas More, was an English lawyer,
social philosopher, author, and statesman and noted Renaissance humanist. He
wrote Utopia in 1516. (http://soars.org.uk/index.php/about/2014-06-06-18-57-53 Para 6)
9
John Donne was an English poet and a cleric in the Church of England.
10
David Hume was a Scottish philosopher, historian, economist, and essayist, who is best
known today for his highly influential system of radical philosophical empiricism,
skepticism, and naturalism.
11
The Thomistic natural-law stance on suicide came under increasing attack as suicide
was examined through the lens of science and psychology. Where Christian theology has
understood suicide as ―an affair between the devil and the individual sinner‖ (Minois
1999, 300)
Legal Mirror 26
The famous Suicide Act of 196112 , framed by the Parliament of United

Kingdom decriminalized the act of suicide in England and Wales so that the
people who were not killed in their attempt to suicide would not be
prosecuted anymore. Even in Canada the laws which were established in
1892 were removed from the Criminal Code of Canada13 in 1972 by the
Parliament of Canada .Similarly other countries like Ireland, Netherland,
USA, South Africa, Russia, Japan, Australia and many others have followed
their footsteps. India however took time in accepting such a change. India
was colonized by the British for more than 200 years and most laws
including laws related to suicide were taken from the English Laws. The
English law considered suicide to be a criminal offence and therefore the
Indian Penal Code (1860) which was drafted by the Britishers followed the
same rule too (Section 309).
Several judgments that have been passed in India have expressed their
opinions against the validity of section 309 as it goes against Article 14 and
21 of the Indian Constitution. The questions regarding the validation of
Section 309 were first raised in the landmark case of „P. Rathinam v.
Union of India‟14(1994) where the Supreme Court after considering many
legal documents and other sources, held that “We, therefore, hold
that Section 309 violates Article 21, and so, it is void. May it be said that the
view taken by us would advance not only the cause of humanisation, which
is a need of the day, but of globalisation also, as by effacing Section 309, we
would be attuning this part of our criminal law to the global wavelength.
The writ petitions stand allowed by declaring Section 309 of the Penal Code
12
The Suicide Act 1961 (9 & 10 Eliz 2 c 60) is an Act of the Parliament of the United
Kingdom. It decriminalized the act of suicide in England and Wales so that those who
failed in the attempt to kill themselves would no longer be prosecuted.
13
The Criminal Code or Code criminel is a law that codifies most criminal offences and
procedures in Canada.
14
P.Rathinam vs Union Of India on 26 April, 1994; Equivalent citations: 1994 AIR 1844,
1994 SCC (3) 394
(http://indiankanoon.org/doc/542988/ ,Para 110,111)
Legal Mirror 27
as unconstitutional and hence void.”Justice R.A. Jahagirdar has referred the

case of „P. Rathinam v. Union of India‟ (1994) in his article which is
strongly against the provisions under section 309. He considers it to be
unconstitutional in nature since it lacks mens rea and soundness of mind
(which itself constitutes as a defence against murder). But the case of
„GianKaur v.State of Punjab‟15totally reversed the above mentioned
judgment. Here the court opined that Section 309 was valid and
constitutional and does not in any case violated Article 21. The court said
that ―We are, therefore,unable to concur with the interpretation of Article
21 made in P. Rathinam. Theonly reason for which Section 309 is held to be
violative of Article 21 in P. Rathinam does not withstand legal scrutiny. We
are unable to hold that Section 309 I.P.C. is violative of Article 21.The basis
of the decision in P. Rathinam, discussed above, was not supported by any
of the learned counsel except Shri B.S. Malik. On the basis of the decision in
P.Rathinam it was urged that Section 306 also is violative of Article 21, as
mentioned earlier. On the view we have taken that Article 21does not
include the right to die' as held in P. Rathinam, the first argument to
challenge the constitutional validity of Section 306, IPC also on that basis
fails, and is rejected‖. Another landmark case in which once again the
unconstitutional nature of Section 309 of Indian Penal Code was strictly
pointed out was the case of „Maruti Dubal v. State of Maharashtra‟16.
Here the customs of different religious communities were taken into
consideration to decide the validity of Section 309. The High Court
observed that ―The attitude of the Hindu and Jain religions depicted in the
aforesaid writings of the Dharmashastrakaras shows that though ordinarily
15
Smt. Gian Kaur vs The State Of Punjab on 21 March, 1996; Equivalent citations: 1996
AIR 946, 1996 SCC (2) 648
(http://indiankanoon.org/doc/217501/)
16
Maruti Shripati Dubal vs State Of Maharashtra on 25 September, 1986; Equivalent
citations: 1987 (1) Bom CR 499, (1986) 88 BOMLR 589
(http://indiankanoon.org/doc/490515/) (Para 14,Para 19)
Legal Mirror 28
suicide was disapproved, in certain circumstances it was tolerated,

condoned connived at, accepted and even acclaimed depending upon the
person and the particular circumstances. What is instructive to note is that
the exceptions made were more or less in conditions similar to those which
are pleaded today as circumstances extenuating suicides or attempts to
commit them. Suicide involves no damage to person or property of others. If
destruction of one's property or its deliverance to others for a cause or no
cause is not an offence, there is no reason why sacrifice of one's body for a
cause or without a cause or for the mere deliverance of it should be
regarded as an offence, much less an attempt at doing so. The
discriminatory nature of S. 309 becomes particularly prominent when its
provisions are compared with S. 300, Penal Code. While defining murder,
the legislature has taken pains to make a distinction between culpable
homicide amounting to murder and one not amounting to murder and has
prescribed different punishments for the two. However, S. 309 prescribes
the same punishment to all individuals irrespective the different sets of
circumstances under which the suicide attempt is made. This is strange
although murder is a more heinous offence with consequences to the other
member or members of the society. For all these reasons, we are of the view
that S. 309 is ultra vires the Constitution being violative of Arts. 14 and 21
thereof and must be struck down‖.
Article 21 also played a major role in the process of decriminalization of
Section 309 of IPC in India. Many scholars argued that decriminalization of
309 defeats the very purpose of Article 21 that covers Right to Life.
Whenever this issue was raised the Courts have over and over again stated
that Right to Life includes living a proper and dignified life and not just
mere living. Thus if Right to Die is included as a fundamental right it will
oppose the objective of Article 21.But Right to Life as interpreted by the
Supreme Court has a wider approach that includes availability of sufficient
Legal Mirror 29
food ,shelter, education and dignity. But if the state fails to provide the
adequate means of living to an individual and he suffers he has the right to
attempt suicide and the state is not justified in punishing them .The state is
instead obligated to provide them with proper medical facilities and ensure
that they can live their life with dignity from then onwards. Taking all the
above factors into consideration the Indian Government finally decided to
strike down Section 309(Whoever attempts to commit suicide and does any
act towards the commission of such offence, shall be punished with simple
imprisonment for a term which may extend to one year 1[or with fine, or
with both) of the Indian Penal Code in December 2014.
If we could walk through a time portal from the age of Plato to the modern
era we can critically observe the evolution of the human mind. From the
belief that suicide was a sin against the gods to the point where suicide is
nothing but a curable mental illness, we have truly evolved. Both Plato and
Aristotle were devoid of any kind of sympathy towards the welfare of the
individual committing suicide and limited their concern to the societal
obligation. The main essence of Renaissance was humanism17 and it was in
this period when the views on suicide first started changing. Humanity was
prioritized and social roles and obligations started losing their importance.
What was then just an idea is now a law. The people attempting suicide are
no more being punished and are instead being cured out of that ill- mental
state.
To understand why suicide is not a punishable offence in the view of law we
have to delve deeper into the judicial interpretations of suicide. A man
named Lionell Henry Churchill18 was sent to prison when he was found
with a bullet wound in his forehead next to his dead wife. In spite of the
17
Humanism is a philosophical and ethical stance that emphasizes the value and agency of
human beings, individually and collectively, and generally prefers critical thinking and
evidence (rationalism, empiricism) over unthinking acceptance of dogma or superstition.
18
Harry Lionel Churchill CMG FRGS (1860-1924) was a Physician and British diplomat.
Legal Mirror 30
doctor recommending medical treatment for him the court sentenced him to
prison in July 1958 after being pleaded guilty of attempt to suicide. But this
happened before the Suicide Act of 1961 was passed. According to Doctor
Wright19 ,the co–author of Histories of suicide: International perspectives
on self-destruction in the modern world, ―From the middle of the 18th
Century to the mid-20th Century there was growing tolerance and a
softening of public attitudes towards suicide which was a reflection of,
among other things, the secularisation of society and the emergence of the
medical profession‖20 By the 18th century superstitions and customs started
wearing off and people gained a respect for new ideas and thoughts. In
1958 the “ British Medical Association and the Magistrates” Association
recommended a ―more compassionate and merciful outlook‖ regarding
suicide and after two years the Suicide Act of 1961 was passed by the
British Parliament. India though had an orthodox view about suicide, finally
came to accept the flaw of Section 309 of IPC. The present Indian
government took the revolutionary step of striking down section309.Usually
when a crime is committed ―the act is more important than the attempt‖ but
surprisingly in case of suicide it is just the opposite where ―attempt‖ is a
punishable offence because the hands of law are not long enough to reach
the ―after life‖.
Suicide lacks mens rea or malice .It is just a state of perpetual or temporary
unsoundness of mind which is also considered a defence against murder.
The High Court in its judgement of the case of Maruti Shripati Dubai
presented a beautiful interpretation that widened the horizon of ―right to
life‖. Here it was observed that ―right to die‖ can be included under the
scope of ―right to life‖. According to the Court as freedom of speech
includes the right to silence, the right to life can also include the right to die.
19
Dr David Wright is a professor of history at Canada's McGill University.
20
http://www.bbc.com/news/magazine-14374296 under the sub heading ‗Shockingly
Slow‘, Para 4
Legal Mirror 31
The provisions given in Article 21 can have a multidimensional approach; if

an individual has the freedom to live a dignified life then he also has the
freedom to ―choose not to live‖.
Emily Dickinson21 in her poem ―If I Can Stop One Heart From Breaking‖
wrote -
―If I can stop one heart from breaking, I shall not live in vain; If I can
ease one life
the aching, Or cool one pain‖.
These lines flawlessly provoke the humanity that nestles in our heart. The
person who commits suicide or attempts suicide has already given up on
life. The journey of life itself seems like a punishment to him. Therefore for
a person who has been punished enough already, it seems comic when the
state punishes the person for being ―punished‖ in a way. A person so
traumatised, whose visions of life are blurred must be medically treated. He
should be psychologically stabilised through counselling and given an
opportunity to start life afresh. “Charity begins at home” and so the doctors
suggest that the first step to cure the individuals suffering from such severe
depression and trauma, is to make them interact with their near and dear
ones. Another remedy is to give them enough time for reflection. A famous
Bengali movie called the ―Hemlock Society” portrays several lives that
revolve around a peculiar ―suicide club‖. This club trained the people to
successfully commit a suicide. At first this movie may seem very dark but
as the movie progresses, we realise that the whole movie was about
avoiding suicide rather than committing it. This movie values the power and
importance of introspection and patience .Suicide is always committed due
to hasty decisions and so when given enough time to reflect upon the
21
Emily Elizabeth Dickinson was an American poet. Dickinson was born in Amherst,
Massachusetts.
Legal Mirror 32
decisions taken, we realise that our so called problem is only temporary and
that there is always a way out.
Thus a person who has a tendency to commit suicide and has attempted to
commit suicide requires more sympathy and should be given a relief by
direction to be treated medically for his recovery rather than being punished
by the court. If punished according to the provisions under Section 309 of
the Indian Penal Code, it no doubt leads to irreparable injustice to that
person.
Legal Mirror 33
POSITION OF FUNDAMENTAL RIGHTS DURING THE

EMERGENGY
Anamika Singh* & Shriya Badgaiyan**

INTRODUCTION
Emergency has a deliberate effect on the rights of people in a democratic

country. For example, in the US, which has constitutionally guaranteed
fundamental right comparable to those of India, the privileges of the writ of
habeas corpus may be suspended when in the case of rebellion or invasion,
the public interest requires it1. The courts They can, however, determine
whether the condition has arisen to justify the suspension of habeas corpus.
No other fundamental right can be suspended in the US, but in an
emergency, courts Do somewhat restrictive interpretation of these rights
than they do on regular days2
In Britain during the two world wars were drastic discretionary powers it
granted to the executive to interfere with the right of the person and property
of the persons. This severe interference with the right people received legal
sanction in different cases. The theory is that when a country is involved in
a war of survival, people have to sacrifice their actual rights to point for the
state to live. If the state fails, people also lower.
In India, a proclamation emergency was under Article 352, affects the

fundamental right of people drastically. The impact of the emergency the
fundamental right is more widespread in India than in the US case.
*Student,V sem, DSNLU Visakhapatanam.

**Student,V sem, DSNLU Visakhapatanam
1
Art 1 S.9 CL 2 OF THE U.S. Consti, Ex Parte Milligan,4 Wall 2 (1866)
2
Schenck v U.S.47 ;Korematsu v U.S. 323 US 214
Legal Mirror 34
When the Constitution was being drafted India, India was passing through a
period of stress and tension. Partition of the country, communal riots and the
problem concerning the merger of the princely states including Kashmir.
Therefore, manufacturers of Constitution, designed to provide the State
Administration with the necessary authority, so that, at the time of
emergency when internal and external threats threaten the security and
stability of the country. Therefore, some of the emergency provisions were
made in the Constitution to safeguard and protect the security, integrity and
stability of the country and the effective functioning of state governments.
Considering the points raised above constitution inserted manufacturers the

national emergency.
Emergency Provision falls in Part-XVIII of the Constitution of India since

art.352 art. 3603.
National emergency
As is clear from the opening words of the section is noted above, domestic
offers emergency constitutional provisions to be applied whenever there is
an imbalance in the society throughout the country and not to a region or
particular state or specific.
(1) If the President is convinced that there is a serious emergency at the

security of India, or any part of the territory thereof is threatened, whether
by war or external aggression or armed rebellion, he can, by Proclamation,
make a statement to that effect in relation to the whole of India or this part
of the territory of the same may be specified in the Proclamation. An
3
J.C. Johari, The Constitution of India: A Politico-legal study, Abhaas Publications, New
Delhi, 4th Ed.(2007), Pg. 85-92.
Legal Mirror 35
emergency proclamation declaring that the security of India or any part of

the territory thereof is threatened by war or external aggression or armed
rebellion can be done before the actual occurrence of war or any aggression
or resistance,
Provisions have been made in the Constitution to deal with extraordinary

situations that could endanger peace, security, stability and governance in
the country or a part thereof.
The Indian Constitution has provided for the imposition of the emergency
caused by war, external aggression or internal rebellion. This is described as
a national emergency. This type of emergency may be declared by the
President of India if he is convinced that the situation is very serious, and
the security of India or any part there of is threatened or may be jeopardized
either by the war or external aggression by the armed rebellion in the
country. The President may issue such a proclamation even in the field of
war or threat of attack. According to Amendment 44th of the Constitution,
the president can only declare an emergency if the Council of Ministers
recommended in writing by vice president.
As regards the proclamation of national emergency, certain basics are

expressed in previous statements. Those are the security of India or any part
of the territory of the same states talk about the situation is threatened
whenever the country as a whole or any part of the country, but that would
not be considered as state emergency4.
By war or external aggression
The first words themselves are explanatory nature and, therefore, need not
be explained so much. Whenever other objects (not within the Indian
4
M.P. Jain, Indian Constitutional Law, LexisNexis Butterworths Wadhwa, Nagpur, 6 th Ed.
(2010),pg. 65-71.
Legal Mirror 36
territory) try to create problems for India and its people through war and
aggression.
Armed rebellion in the country, the word "armed rebellion" was not there at
the constitutional provisions from the beginning. Before 1978, an
emergency could be declared due to "war, external aggression or internal
disturbance", which was too vague and broad sense. The 44th constitutional
amendment replaced the word "armed rebellion" of emergency. Supreme
Court explained in one case, the term "internal disturbance" has a broader
connotation than "armed rebellion" in the sense that the armed rebellion is
likely to represent a threat to national security or a part thereof while
internal unrest, although serious in nature, do not represent a threat to
national security or a part there of. The intention behind the replacement of
civil commotion words for "armed rebellion is to limit the invocation of Art.
352 but in more serious situations where there is a threat to national
security.
Suspension of fundamental right position before 1978
(A) The suspension of Article 19
According to Article 358, as it existed before 1978, as soon as emergency

proclamation made under Article 352, Article 19 she was suspended. Article
358 stated that while emergency proclamation "is running, nothing in art 19
State power is limited, to make a law for executive action.
Under art 358 there was an automatic stay of art as soon as 19 emergencies
was declared under section 19 352.Suspension art during the pendency of
emergency proclamation Under art 352 removed obstacles to the legislative
and executive powers imposed by Article 19. If a law or legislative fact
implementing commands that are incompatible with the fundamental right
Legal Mirror 37
guaranteed by Article 19, its validity was not subject to appeal, either for the
continuation of emergency or even later.
(B) The suspension of another fundamental right
Article 359 refers to the suspension of the execution of all the various
fundamental rights proclaimed in the Article 19 of article 359 art 352.Under
fundamental right as such, was not suspended for the delayed application.
Under art 359 as pre-1978 status, the application of all fundamental rights
(except for Article 19, which is the art object 358) may be suspended during
the emergency by a Executive order. When proclamation emergency was
running, the president for an order declaring that the right to move any court
for enforcement fundamental right and proceed pending in any court of the
application of this right "shall be suspended for the period during which it is
into force or the shorter period as may be specified in that order5.
In Mohammad Yacoob v State of Jammu and Kashmir6
An attempt to declare the presidential order unconstitutional. This case

concerns the petition of habeas corpus to challenge the validity of the arrest
made under Article 30 (1) of the defense of India rules 1962. An effort was
also made to challenge the PO issued under art 359 suspending art 14, 21,
22. The line of attack was that the president being an authority under Art 12
came within the definition of the term ‗state‘. The presidential order issued
under art 359 was ‗Law‘within the meaning of Art 13(2) standards was and
consequential the presidential order was liable to be tested with respect to
the fundamental right which it sought to be suspended.
5
P.M. Bakshi, The Constitution of India, Universal law Publishing Pvt. Co. New Delhi,
10th Ed.(2010), Pg. 70-78.
6
AIR 1968 SC765:( 1968)2 SCR 227
Legal Mirror 38
Makhan Singh v the State of Punjab7
The Supreme Court had an opportunity to consider the effect of the

proclamation emergency presidential order issued there under.
(C) Preventive and emergency Detention before 1975
A critical question that arose during emergencies and 1962 was 1,971
compared to the scope of judicial review of Preventive Detention. When
emergency was declared in 1962 the implementation of art14, 21 and 22
was suspended by the Presidential order issued under section 359 with
respect to a person who was deprived of these rights under the Defence of
India Act or any rule or order issued there under Makhan Singh in Punjab
state, a case that arose under proclamation
(D) Preventive and Emergency Detention 1975
When the emergency was declared on June 25, 1975, Art Under 352 a
presidential order was issued on June 27, 1975, under art 359 the right of
access to court is suspended for the enforcement of the law anyone under art
14, 21, 22 general. The PO 1975 disagreed with the presidential order issued
in 1962 or 1971 in general.
Suspension of other fundamental rights
The impacts of the emergency provisions of the Constitution of India
The total federalism, as Dicey is a weak form of government, as it involves

the division of power between the center and the units. Each modern
federation, however, has tried to avoid this weakness by providing for the
assumption of larger powers federally unified action by reason of internal or
external emerging circumstances is always needed.
7
AIR 1964 SC 381: (1964) 4 SCR 797
Legal Mirror 39
There are times when a nation is suddenly and unexpectedly overtaken by

events and forces that seriously their safety and lives of its citizens at risk.
These situations may require individual freedoms of citizens are temporarily
suspended to deal with the dangers facing the nation. Emergency situations
democratic governments put in a real dilemma to provoke a conflict
between their primary obligation to protect the integrity of the state and its
equally important to protect the human rights of its citizens and other
persons within its jurisdiction obligation. The state is forced to choose
between competing values and the sacrifice of one another. That is the
rationale of emergency provisions, which finds its place in many national
constitutions that allow the suspension of fundamental rights guaranteed.
Provision of Emergency is a unique feature of the Indian Constitution that

allows the Centre to assume sweeping powers to handle particular
situations. In the emergency, the Centre can take full legislative and
executive control of any state. Emergency supply also allows the Centre to
restrict or suspend the freedom of citizens. The existence of emergency
provisions in the Constitution is a big reason academics do not dare call
Constitution of India as wholly federal.
The Constitution of India provides for three different types of abnormal

situations that require the installation of the proper machinery of
government by the Constitution
1) An emergency situation due to war, external aggression or armed

rebellion, Article 352. It is also known as National Emergency.
2) The lack of constitutional machinery in the state [Article 356]. Also

known as the Presidential Rule8.
8
http://www.legalservicesindia.com/article/article/position-of-fundamental-rights-during-
emergency-589-1.html//last retrieved on 15thAugust, 2015, 09.00 p. m
Legal Mirror 40
Suspension of the implementation of the fundamental right (Article

359)
Article 359 empowers the President to suspend the right to enforce the
fundamental rights guaranteed by Part III of the Constitution. It is said that
while the proclamation of emergency is in operation, the President can
finally declares that the right to move to any court of the application of such
fundamental rights as may be mentioned in the order (except Article 20 and
21) 44th amendment, and all proceedings pending in any court of the
application of such rights will remain suspended during the period of the
proclamation of force or a shorter period as may be specified in the order.
An order of suspension of the application of fundamental rights is extended
to all or part of the territory of India. An order made under clause (1), as
soon as practicable, be placed before each House of Parliament9.
The Constitution (38th Amendment) Act 1975,
It added a new paragraph (1-A) in the art. 359 which states that while an
order under clause (1) is in operation, there is nothing in Part III state power
is limited to make any law or to take any executive action. This law shall
cease to have the effect to the extent of incompetence, as soon as the cease-
trade order except as regards out or omitted to be done before the law so
cease to have the effect.
The 44th Amendment Act, 1978
He has made two major changes to Article 358, first, Article 19 shall be
suspended only when a proclamation of emergency is declared in the field
of war or external aggression, not when the state of emergency declared on
the floor of the armed rebellion.
9
http://lawprojectsforfree.blogspot.in/2010/08/constitution-of-india-
fundamental.html/ht/last retrieved on 17th August, 2015, 09.30 p.m.
Legal Mirror 41
Secondly, has inserted a new paragraph (2) of Article 358 which states that
nothing in the clause shall apply to (1) (a) any law that does not contain a
recital in the sense that a law This type is in relation to the proclamation of
emergency, or (b) any enforcement action taken otherwise than under a law
that contains a rectal such. This provision makes clear that art. 358 only
protect emergency laws being challenged in the courts of law and not to
other laws that are not related to the emergency. Prior to this, even the
validity of other laws, which is not related to the emergency, could not be
challenged under Article 358.
It should be noted that, unlike under art.358 art. 359 the suspension of the
right to move any court for the enforcement of fundamental rights is not
automatic. It can only be triggered by presidential order.
In September 1962, China attacked India. October 26, 1962, the President of
India issued an emergency proclamation under Article 352 (1) declare that a
grave emergency exists whereby the security of India is threatened by
"external aggression."
On November 3, 1962, the President issued an order under Article 359 (1),
which read "In the exercise of the power conferred by paragraph (1) of
Article 359 of the Constitution, this president declare that the right of any
person to move any court to enforce their rights under Art. 14.21, and22 of
the Constitution was suspended fit the period during which the emergency
issued under Article 352 (1) October 26, 1962, was in force if the person has
any rights under the privacy act of defense India 1962 or any order of the
rules made there under. "But now is changed after the constitutional
amendment number 44.
The 59th amendment has changed the art. 358 and inserted the word "or
armed rebellion, or that the integrity of India is threatened by internal unrest
Legal Mirror 42
in all or part of the territory of Punjab" after the words "or external
aggression". This means that in the case of Punjab, the right guaranteed by
Art. 19 is also suspended when the emergency was declared on the ground
of "armed rebellion or internal disturbance."
The proclamation or emergency, however, does not invalidate a law that

was valid before the proclamation of emergency.10
M. M. Pathak vs The Union of India11
The Supreme Court had an opportunity to consider the effect of "what was
done or not done" in Article 358 after the proclamation of the emergency
stop. In that case, it was an agreement between the LIC of India and his
employee in 1977 under which the LIC had agreed to pay the cash premium
to your employee. In 1977, however by the LIC (modification of the
settlement) act 1976 adopted by Parliament during the emergency settlement
it was ineffective and therefore, the employee could not demand their
advantage during the current exception. The LIC employee challenged the
constitutional validity of the old law. The Supreme Court held that the effect
of the proclamation of emergency on fundamental right guaranteed by
Article 14 and 19 are not suspended during the emergency, but its operation
will be suspended. This means that only the validity of a based on Article 14
and 19 attacks is suspended during the emergency. But once the embargo
was lifted Article 14 and 19 of the Constitution, the use of which was
suspended, it would repeal all legislation that would have been valid. In
other words, the declaration of validity was maintained during the
emergency. The expression "acts or omissions that do" occurring in Article
358 does not mean it is entirely right conferred lava. The expression
10
http://lawprojectsforfree.blogspot.in/2010/08/constitution-of-india
fundamental.html/ht/last retrieved on 17th August, 2015, 09.30 p.m.
11
1978 AIR 803, 1978 SCR (3) 334
Legal Mirror 43
interpreted narrowly. Therefore, as soon as the emergency situation on the

settlement would revive and what could not be payable during the period of
the emergency it became even pay for the emergency period for which
payment is suspended. In other words, the enactment will even after the
emergency had ended. Valid claims can not be washed out by the
emergency itself. May be suspended only by a law passed during the
operation of Article 358 and Article 359 (1).
The suspension of fundamental rights, however, even during a period of

national emergency is an entirely undemocratic practice whatever the case
in your favor. Its immediate result is a sanctuary of human rights that has
been off limits for the executive is thrown open for unrestricted action. In
the process, individual freedom is bound to suffer. For, where the executive
is free to act with impunity, abuse of power becomes to suffer because, in
which the executive is free to operate with impunity, abuse of authority
becomes natural concomitant. Therefore, there is a great need for the
parliament to be more vigilant and create, if necessary, an appropriate
mechanism that would review all cases of restriction of individual liberty12.
Makhan Singh the Vs State of Punjab13
The emergency was declared once before, during the war in Indo-china. At
that time the right to move any court of the application of Articles 14, 21
and 22 shall be suspended under Article 359 only for people detained under
the Defence of Indian Standards (DIR), the law of arrest preventative at that
time. It was a partial suspension. Supreme Court interpreted to mean that the
rights were suspended only for legally detained. So if a person were illegally
detained under DIR, he could keep the petition of habeas corpus. It was for
12
J.N. Pandey, The Constitution of India, Eastern Book Company, Allahabad, 10th Ed.
(2012), pg. 78-89.
13
1964 AIR 1120, 1964 SCR (4) 932
Legal Mirror 44
the first time during the emergency imposed on 26 June 1975 that articles
14, 19, 21 and 22 were suspended in full, without any reference to any law.
This time when he filed habeas corpus, a question that Article 21 is the sole
repository of freedom has been suspended in full, without habeas corpus is
maintainable was raised. The government also tried to distinguish the above
case of Makhan Singh in the different wording of the notice that rights are
suspended. Almost all the High Courts decided this question against the
government. And on this issue the matter was taken on appeal to the
Supreme Court.
The Supreme Court held that it was impossible to accept that right that can
be suspended by an order made under Article 359 (1) was the right
guaranteed by Article 32 (1) to move to the Supreme Court to enforce
fundamental rights and a citizen would be free to seek relief under art.226 of
the high court, Article 32 (3), Parliament may empower any other court to
exercise all or the power applied by the Supreme Court.
The Supreme Court stated that a citizen is not deprived of their right to
move the appropriate court for a writ of habeas corpus if his detention had
been in bad faith14.
Maharashtra State v. Prabhakar15
Otherwise v Maharashtra state. Prabhakar, the Supreme Court, held that if a

person was deprived of his personal liberty, not under the Defence of India
Act, or any rule made there under, but the violation thereof, the right to
move the court to that effect would not be suspended. Similarly in Manohar
Lohia Ram v. Bihar State Supreme Court held that the president's order to
bar all applications for release from detention under the law or rule was
formed. When a person was arrested in violation of the mandatory provision
15
1966 AIR 424
Legal Mirror 45
of the Defence of India, act their right to move the court was not
suspended16.
ADM Jabalpur Vs Shiv Kant Shukla17
Article 21 of the Constitution guarantees the right to life and freedom. The
right to go to court to enforce Article 21 was suspended under Article 359 of
the Constitution during the internal emergency (1975 to 1977). In this case,
the aforementioned Executive Order was issued during the emergency is
declared that the right of any person to move any court for any application
of the rights recognized by Articles 14, 21 and 22 of the Constitution and all
pending proceedings Court any application of the above rights be suspended
during the period in which the Proclamation of Emergency is in force.
TRIAL: - Marking the black day of the legal history of India, the Supreme
Court rejected the arguments of the defendants and ruled that Article 21 of
the Constitution was the sole repository of the right to life and liberty and
therefore, suspending it implied that all the remedies that protect this right
under any other law also suspended. The Court, while interpreting Article
21 as the sole repository of life and personal liberty denied all the resources
available to détenus for any reason that any challenge to the security
measure of the implementation of the right to personal liberty under Article
21 could not be done so consider the presidential order suspending it in
force. Most also said that although the detention order could not be
challenged even for any other reason, even if the arrest warrant was passed
in bad faith, making the arrest even without any remedy against unlawful
detention. Therefore, the Court declared, "in view of the Presidential Order
dated June 27, 1975 no person has no standing to move any writ petition
under Article 226 before a High Court for habeas corpus or any other
16
http://hanumant.com/Emergency.html/last retrieved on 12 th October, 2015, 09:30 p.m.
17
1976 Supp SCR 172
Legal Mirror 46
recourse or order or direction to challenge the legality of an arrest warrant

on the grounds that the order is not under or pursuant to the law or is illegal
or suffers from mala fide or factual or based on extraneous considerations ",
closing its doors to any relief at all to any person suffering from unlawful
detention.
But now, after the 44th constitutional amendment of Article 21 of the

Constitution; the right to life and freedom, now it can not be suspended.
Even during the emergency, 44 Constitutional Amendment Act passed
unanimously, she said. It is instructive to look back at the case of habeas
corpus during the internal emergency (1975-1977), the ratio of the 44th
Constitutional Amendment Act and Leversidge Vs Anderson18, who played
such an important role in the Supreme Court19.
The effects of the emergency provisions on fundamental right.
Federal laws override state law and the Union is empowered to govern areas
(e.g., Police) that are usually granted to states.
 The EU is also allowed to take complete control and tax and budget
revenue processes. Under the financial emergency, the Union is
entitled to have the final say in the enactment of financial laws
passed by the state legislature.
 The Union may decide to suspend some or all of the fundamental

rights guaranteed by the Party (Articles 12-35) of the Constitution -
which include:
 freedom of equality before the law
18
[1941] UKHL 1, [1942] AC 206. Court membership. Judge(s) sitting, Viscount Maugham
19
http://www.academia.edu/9440306/Suppression_of_Fundamental_Rights_During_Emerg
ency_Judicial_and_Legislative_Response/last retrieved on 30thAugust, 2015, 08.30 p.m.
Legal Mirror 47
 freedom of speech and expression
 freedom of peaceful assembly
 freedom of movement through Indian territory
 freedom to practice any profession, trade or business.
 The freedom to practice and propagate religion.
 Also, the right to challenge the suspension of the above rights (right
to constitutional remedies) can also be suspended. However, this
provision does not cover the suspension of Articles 20 and 21
regulate the rights to personal liberty, the right to silence, freedom of
res judicata and freedom from arrest and illegal detention. Any
individual who believes that his rights under these categories have
been suspended illegally can challenge the suspensions under a
court.
 The Union may decide to dismiss the legislative functions of a state

legislature and impose the federal law for six months. This rule of
suspension may be renewed at the end of this period in the vote of
Parliament (indefinite number of times) until the time the Election
Commission of India can certify the feasibility of holding free and
fair elections in the state to reconstitute legislature.
Any order of the above effects, however, must be approved by the House of
Parliament ‗as soon as may be after it is made.20‘
20
http://lawmin.nic.in/ncrwc/finalreport/v2b1-3.htm/last retrieved on 15th October, 2015,
09.13 p.m.
Legal Mirror 48
The remedies of compensation in case of emergency
Compensation for victims is a recognized principle of law that is applied by

the ordinary civil courts. Under tort law to victims can claim compensation
for damage to person or property suffered by them. You take decades for
victims to obtain a decree for damages or compensation through the civil
courts, which is leading to many problems for them.
Article 32 (1) establishes the right to move the Supreme Court for the
appropriate observance of fundamental rights proceedings. The Supreme
Court under Article 32 (2) is free to devise a procedure for the application of
fundamental right and has the power to issue any process necessary in a
given case. Because this constitutional provision, the Supreme Court may
even give recovery assistance, which may include an "appropriate cases"
compensation.
Article 32 (3) Parliament may empower any other court by law within the
local limits of its jurisdiction all or the power exercised by the Supreme
Court under cl. (2)Article (4) states that the right guaranteed by Article 32,
unless otherwise not suspend provided for the constitution.
Conclusion
Fundamental rights are those rights that are considered necessary for the
development of the personality of an individual. They included in the
Constitution so that every citizen can enjoy them, and nobody can interfere
with them. Only when an emergency is proclaimed, these rights may be
suspended by the central government. "But they are only suspended until the
emergency is announced.
These rights reflect the desire of the founders of the Constitution of India
parents to build a new social order. So you can move any court in the
Legal Mirror 49
implementation of these rights under Article 32. However, when

emergencies come into force these fundamental rights also came to end only
the execution time of the emergency, and it is the opinion that the power of
government self -protection and allows a reasonable regulation of property
rights and essential to the preservation of the community of an injury. "The
foremost thing to do during an emergency is to protect the society from
external aggression or maintain the decorum of the state for the internal
disturbance.
Legal Mirror 50
TRIAL BY MEDIA
Shivangi Mishra*
A. Introduction
The heightened public clamor resulting from radio and television coverage
will inevitably result in prejudice. Trial by television is, therefore, foreign to
our system.
- Tom C Clark
Media assumes an essential part in trimming the sentiment of the general

public and it is equipped for changing the entire perspective through which
individuals see different occasions. The media can be lauded for beginning a
pattern where the media assumes a dynamic part in conveying the charged
to snare. With the expand of 24 hours news channels and scores of daily
paper dailies, the fixation on giving breaking news has come to new
statures. The Indian judiciary is under the media's magnifying lens. The
Indian media has enhanced the judge's robe and began leading parallel trials
- one outside the entryways of courts, past the shackles of technique - in
public arena.
To my mind, the freedom of the Press is not just a slogan from the larger
point of view but it is an essential attribute of the democratic process. I have
no doubt that even if the government dislikes the liberties taken by the press
and considers them dangerous, it is wrong to interfere with the freedom of
the Press. By imposing restrictions you do not change anything; you merely
suppress the public manifestation of certain things, thereby causing the idea
and thought underlying them to spread further. Therefore, I would rather
have a completely free Press with all the dangers involved in the wrong use
of that freedom than a suppressed or regulated Press.
- Jawaharlal Nehru (Speech at the Newspaper Editor’s

Conference. 3/12/1950)
Legal Mirror 51
The Supreme Court of India has defined ―trial by media‖ to mean “the
impact of television and newspaper coverage on a person‟s reputation
by creating a widespread perception of guilt regardless of any verdict in
a court of law.”21 The Supreme Court of India has recognized the right to a
fair trial as a part of the Fundamental Rights of citizens to equality and life
and personal liberty, conferred by two articles of the Constitution of India.22
Under Articles 32 and 226 of the Constitution, the Supreme Court of India
and the High Courts of various states can respectively issue writs against the
state for the enforcement of Fundamental Rights.
Freedom of Press is not specifically mentioned in Part III of Indian

Constitution, however the Hon'ble Supreme Court in a number of judgments
has recognized that freedom of speech and expression also includes freedom
of press.23 In rapidly changing socio-economic conditions of a country like
India, the role of media/ press has gained prominence and hence it is often
quoted that "Media" is the fourth pillar of Indian Democracy.
B. Historical Background
Its first inception was by the phrase Trial by Television which found light in
the response to the 3 February, 1967 television broadcast of The Frost
Programme, host David Frost. The confrontation and Frost's personal
adversarial line of questioning of insurance fraudster Emil Savundra led to
concern from ITV executives that it might affect Savundra's right to a fair
trial.
*3rd Year student, BLS.LLB,Government Law College.

21
Anand v. Registrar, (2009) 8 S.C.C. 106 (Del.) 174.
22
Maharashtra v. Shah (1982) 1 S.C.R. 299, 302; Agarwal v. Agarwal (2003) 6 S.C.C. 230
38; Sarkar v. Assam (2008) 9 S.C.C. 204 11, 44; Aga v. Punjab (2008) 9 S.C.A.L.E. 681
154.
23
Indian Express Newspapers V Union of India 1985 SCR (2) 287.
Legal Mirror 52
The history of Media law dates long back, first enactment was in 1799
when Lord Wellesley promulgated the Press Regulations which had the
effect of imposing prior restraints on an infant newspaper publishing
industry. The rigors of those regulations were eased in 1813 by the
administration of Lord Hastings. After that Sepoy Mutiny of 1857, The
Government clamped down on the publication of writings deemed seditious
and imposed punitive sanctions on printers and publishers who failed to fall
in line. Lord Ripon as Viceroy in 1880, Ripon‘s first acts on assuming office
was to repeal the unpopular measure.
Birth of Indian National Congress, newspapers began adopting a more

assertive stance leading to friction between the press and the government,
which led to more stringent measures aimed at curtailing the freedom of
press. After the Second World War ended, talks on the transfer of power
began and most of the controls on the press were dismantled. After
independence, and after the adoption of the Constitution, freedom of the
press in this country has grown.
In Romesh Thapar vs. State of Madras, [AIR 1950 SC 124] and in several
subsequent cases strict and narrow limits have been placed on the
Legislative powers to abridge the right conferred by Article 19(1) (a). Any
restriction on Article 19(1) (a) can only be valid if three conditions are met:
-
• It is supported by the authority of law;

• The law in question is related to one or more of the permitted heads
of restrictions laid down under Article 19(2); and
• The restriction is reasonable.
Legal Mirror 53
In Express Newspapers Limited vs. Union of India, [AIR 1958 SC 578 at

621]: -
• It was held that it is also necessary that the procedure and the
manner in which the restriction is imposed be just, fair and
reasonable.
• Supreme Court exhaustively dealt with freedom of the press but
stated that it cannot be unbridled. Like other freedoms, it can also
suffer reasonable restrictions.
In 1984, hundreds of Sikhs were killed during violent reprisals after the
assassination of the former Prime Minister Indira Gandhi by her Sikh
bodyguards. A judicial commission named a prominent politician of the
Indian National Congress (INC) party as having ―very probably‖ been
involved in the killings.24 But the politician, who went on to become a
minister in successive INC-led governments, has managed to evade
prosecution.25 In 2002, activists linked to far-right Hindu outfits killed
hordes of Muslims in the state of Gujarat, as purported revenge for the
murder of Hindu pilgrims by suspected Muslim extremists. Unlike the anti-
Sikh riots, the Gujarat riots received enormous media coverage.26 A sting
operation conducted by a magazine culminated in the arrest of political
activists and even a former minister.27
A senior lawyer, serving as amicus curiae in one of the Gujarat riots cases,
has admitted that the media‘s coverage of events has pressurized the police
to investigate the cases seriously.28
24
R Suryamurthy, Nanavati Pins Tytler for ‘84 Riots, TRIBUNE, Aug. 9, 2005.
25
Court Accepts Clean Chit to Tytler, HINDUSTAN TIMES, Apr. 28, 2010.
26
Nidhi Bhardwaj, Missing the Story: Where was the Media in 1984? CNN IBN, 2008.
27
Rana Ayyub, Finally, The First Sign of Justice, TEHELKA, Apr. 11, 2009.
28
Trial By Media, Last Hope for Justice in Gujarat, CNN IBN, 2007.
Legal Mirror 54
C. Legality
The Press if it wants freedom - which is ought to have must have some
balance of mind which is seldom possesses. One cannot have it both ways.
Evert freedom in this world is limited, limited not so much by law as by
circumstances. We do not wish to come in the way of freedom of the Press.
Personally, I am convinced of the freedom of the Press
- Jawaharlal Nehru (Speech in Parliament. 29/5/1951)
 Freedom of Press
Article 19 of the International Covenant on Civil and Political Rights,

196629, embodies the right to freedom of speech, that is, ―everyone shall
have the right to hold opinions without interference‖ and the ―freedom to
seek, receive and impart information and ideas of all kinds, regardless of
frontiers, either orally, in writing or in print, in the form of art, or through
any other media of his choice.‖30
Nonetheless, this freedom comes with a rider that the exercise of this right
comes with ―special duties and responsibilities‖ and is subject to ―the rights
or reputations of others‖. The right to freedom of speech and expression has
29
International Covenant on Civil and Political Rights, 1966, Adopted and opened for
signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16
December 1966, entry into force 23 March 1976.
30
Article 19 of the International Covenant on Civil and Political Rights, 1966:
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include
freedom to seek, receive and impart information and ideas of all kinds, regardless of
frontiers, either orally, in writing or in print, in the form of art, or through any other media
of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it
special duties and responsibilities. It may therefore be subject to certain restrictions, but
these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (order public), or of public
health or morals.
Legal Mirror 55
been guaranteed under Article 19(1) (a) of the Constitution of India. Even
though freedom of press is not a separately guaranteed right in India unlike
the United States of America, the Supreme Court of India has recognized
freedom of press under the umbrella right of freedom of speech and
expression as envisaged under Article 19(1)(a) of the Constitution of India.
In Harijai Singh and Anr. and Vijay Kumar31, the Supreme Court had the
occasion to decide on the scope of the freedom of press, recognized it as ―an
essential prerequisite of a democratic form of government‖ and regarded it
as ―the mother of all other liberties in a democratic society ‖32. The right
under Art 19(1) (a) includes the right to information and the right to
disseminate through all types of media, whether print, electronic or
audiovisual means.33 It was stated in Hamdard Dawakhana v.Union of
India34, that the right includes the right to acquire and impart ideas and
information about matters of common interest.
The Supreme Court has stated that trial by press, electronic media or trial by
way of a public agitation are instances that can at best be described as the
anti-thesis of rule of law as they can lead to miscarriage of justice. In the
opinion of the honorable court, a Judge has to guard himself against such
pressure.35 In Anukul Chandra Pradhan v. Union of India36, the Supreme
Court observed that ―No occasion should arise for an impression that the
publicity attached to these matters (the hawala transactions) has tended to
dilute the emphasis on the essentials of a fair trial and the basic principles
31
(1996) 6 SCC 466, paras 8, 9 and 10.
32
Ibid., para 8.
33
Secretary, Ministry of Information & Broadcasting v. Cricket Association of West
Bengal, 1995(2) SCC 161; Romesh Thapar v. State of Madras 1950 SCR 594; See also Life
Insurance Corporation of India v. Manubhai D Shah, (1992 (3) SCC 637.
34
1960 (2) SCR 671.
35
State of Maharashtra v. Rajendra Jawanmal Gandhi, 1997 (8) SCC 386.
36
1996 (6) SCC 354.
Legal Mirror 56
of jurisprudence including the presumption of innocence of the accused

unless found guilty at the end of the trial‖37.
 Immunity under the Contempt of Court Act, 1971
Under the Contempt of Court Act, 1971, pre-trial publications are sheltered
against contempt proceedings. Any publication that interferes with or
obstructs or tends to obstruct, the course of justice in connection with any
civil or criminal proceeding, which is actually ‗pending‘, only then it
constitutes contempt of court under the Act. Under Section 3(2), sub clause
(B) of clause (a) of Explanation, ‗pending‘ has been defined as ―In the case
of a criminal proceeding, under the Code of Criminal Procedure, 1898 (5 of
1898) or any other law – (i) where it relates to the commission of an
offence, when the charge sheet or challan is filed; or when the court issues
summons or warrant, as the case may be, against the accused.‖
Certain acts, like publications in the media at the pre-trial stage, can affect
the rights of the accused for a fair trial. Such publications may relate to
previous convictions of the accused, or about his general character or about
his alleged confessions to the police.
Under the existing framework of the Contempt of Court Act, 1971, media
reportage, as seen during the Aarushi Talwar case, where the press, had
literally gone berserk, speculating and pointing fingers even before any
arrests were made, is granted immunity despite the grave treat such
publications pose to the administration of justice. Such publications may go
unchecked if there is no legislative intervention, by way of redefining the
word ‗pending‘ to expand to include ‗from the time the arrest is made‘ in
37
Ibid., para 7.
Legal Mirror 57
the Contempt of Court Act, 1971, or judicial control through gag orders as
employed in United States of America.
Due to such lacunas, the press has a free hand in printing colorful stories
without any fear of consequences. Like a parasite, it hosts itself on the
atrocity of the crime and public outrage devoid of any accountability.
 The public‟s right to know
The Supreme Court has expounded that the fundamental principle behind
the freedom of press is people‘s right to know.38Elaborating, the Supreme
Court opined, ―The primary function, therefore, of the press is to provide
comprehensive and objective information of all aspects of the country‘s
political, social, economic and cultural life. It has an educative and
mobilizing role to play. It plays an important role in molding public
opinion‖.39
However, the Chief Justice of India has remarked, ―freedom of press means
people‘s right to know the correct news‖, but he admitted that newspapers
cannot read like an official gazette and must have a tinge of
―sensationalism, entertainment and anxiety‖.40
In the Bofors Case41, the Supreme Court recounted the merits of media
publicity: ―those who know about the incident may come forward with
information, it prevents perjury by placing witnesses under public gaze and
it reduces crime through the public expression of disapproval for crime and
last but not the least it promotes the public discussion of important
38
A.G. v. Times Newspaper, (1973) 3 All ER 54; Express Publications (Madurai) Ltd. v.
Union of India, AIR 2004 SC 1950, para 29; Secretary, Ministry of Information and
Broadcasting, Govt. of India v. Cricket Association of Bengal, AIR 1995 SC 1236, para 4.
39
In Re: Harijai Singh and Anr.; In Re: Vijay Kumar, (1996) 6 SCC 466, para 10.
40
CJI says media must not run parallel trials, http://www.asiamedia.ucla.edu.
41
Kartongen Kemi Och Forvaltning AB v. State through CBI, 2004 (72) DRJ 693.
Legal Mirror 58
issues.‖42Two important core elements of investigative journalism envisage

that (a) the subject should be of public importance for the reader to know
and (b) an attempt is being made to hide the truth from the people.43
 Public participation
Some scholars justify a ‗trail-by-media‘ by proposing that the mob

mentality exists independently of the media which merely voices the
opinions which the public already has.44In a democracy, transparency is
integral. Without a free press, we will regress into the dark ages of the Star
Chambers, when the judicial proceedings were conducted secretively. All
these omnipresent SMS campaigns and public polls only provide a platform
to the public to express its views. It is generating public dialogue regarding
issues of public importance.45Stifling this voice will amount to stifling
democracy.
Quoting Jeremy Bentham, on secrecy in the administration of justice, ―In

the darkness of secrecy, sinister interest and evil in every shape are in full
swing. Only in proportion as publicity has place can any of the checks
applicable to judicial injustice operate. Where there is no publicity, there is
no justice. Publicity is the very soul of justice. It is the keenest spur to
exertion and the surest of all guards against improbity. It keeps the judge
himself while trying under trial.‖46
42
Ibid., para 10.
43
G.N. Ray, Should there be a Lakshman Rekha for the Press, http://presscouncil.nic.in.
44
Navajyoti Samanta, Trial by Media-Jessica Lall Case, http://ssrn.com.
45
Prabhsahay Kaur, Freedom of Press vis-à-vis Responsible Journalism,
www.legalserviceindia.com.
46
K.G. Balakrishnan, The Constitution, The Media And The Courts, The Fourth K.S.
Rajamony Memorial Public Law Lecture, Kerala, www.supremecourtofindia.nic.in.
Legal Mirror 59
 Ineffective legal norms governing journalistic conduct
Under the Press Council Act, 1978, the Press Council of India is established,
with the objectives to ―preserve the freedom of the Press and to maintain
and improve the standards of newspapers and news agencies in India‖47. To
achieve these objectives, it must ―ensure on the part of newspapers, news
agencies and journalists, the maintenance of high standards of public taste
and foster a due sense of both the rights and responsibilities of
citizenship‖48and ―encourage the growth of a sense of responsibility and
public service among all those engaged in the profession of journalism‖49.
The Council, also, enjoys powers to censure. If someone believes that a

news agency has committed any professional misconduct, the Council can,
if they agree with the complainant, ―warn, admonish or censure the
newspaper‖, or direct the newspaper to, ―publish the contradiction of the
complainant in its forthcoming issue‖ under Section 14(1) of the Press
Council Act, 1978.50Given that these measures can only be enforced after
the publication of news materials, and do not involve particularly harsh
punishments, their effectiveness in preventing the publication of prejudicial
reports appears to be limited.
47
Press Council Act, 1978, Section 13(1).
48
Press Council Act, 1978, Section 13(2) (c).
49
Press Council Act, 1978, Section 13(2) (d).
50
Section 14(1) of the Press Council Act, 1978, states: ―Where, on receipt of a complaint
made to it or
otherwise, the Council has reason to believe that a newspaper or news agency has offended
against the standards of journalistic ethics or public taste or that an editor or working
journalist has committed any professional misconduct, the Council may, after giving the
newspaper, or news agency, the editor or journalist concerned an
opportunity of being heard, hold an inquiry in such manner as may be provided by
regulations made under this
Act and, if it is satisfied that it is necessary so to do, it may, for reasons to be recorded in
writing, warn,
admonish or censure the newspaper, the news agency, the editor or the journalist or
disapprove the conduct of the editor or the journalist, as the case may be.‖
Legal Mirror 60
In Ajay Goswami v.Union of India51, the shortcomings of the powers of the

Press Council were highlighted:
Section 14 of the Press Council Act, 1978 empowers the Press Council only
to warn, admonish or censure newspapers or news agencies and that it has
no jurisdiction over the electronic media and that the Press Council enjoys
only the authority of declaratory adjudication with its power limited to
giving directions to the answering respondents arraigned before it to
publish particulars relating to its enquiry and adjudication. It, however, has
no further authority to ensure that its directions are complied with and its
observations implemented by the erring parties. Lack of punitive powers
with the Press Council of India has tied its hands in exercising control over
the erring publications.52
Along with these powers, the Press Council of India53has established a set of
suggested norms for journalistic conduct. These norms emphasize the
importance of accuracy and fairness and encourage the press to ―eschew
publication of inaccurate, baseless, graceless, misleading or distorted
material.‖ The norms urge that any criticism of the judiciary should be
published with great caution. These norms further recommend that reporters
should avoid one-sided inferences, and attempt to maintain an impartial and
sober tone at all times. But significantly, these norms cannot be legally
enforced, and are largely observed in breach.
Lastly, the PCI also has criminal contempt powers to restrict the publication
of prejudicial media reports. However, the PCI can only exercise its
contempt powers with respect to pending civil or criminal cases. This
51
(2007) 1 SCC 143.
52
Ibid., para 41.
53
Hereinafter referred to as the PCI.
Legal Mirror 61
limitation does not consider the extent to which pretrial reporting can impact
the administration of justice.
D. Pro‟s and Con‟s
Whatever we may think of the virtues and failings of the Press it is

obvious that it plays a very important part in our lives; it molds people’s
minds and thoughts and this affects the policies of the government, if not
always directly. Therefore, when we have to deal with any major problem,
it is important that the Press should- if I say so with all humility- give it
right lead….
- Jawaharlal Nehru (Address at the newspapers Editor’s Conference.

4/5/1950).
Evils of „Trial by Media‟
Justice Katju and P. Sainath have attacked the media for focusing attention
on ―non-issues‖ and ―trying to divert attention of the people from the real
issues to non-issues‖54and ―stifling of smaller voices‖.55Who will watch the
watchdog as it abdicates its role as an educator in favour of being an
entertainer?56A line between informing and entertaining must be
drawn.57Due to extensive media propaganda, justice and rule of law are no
longer about the process but the outcome.58
Public opinion may exercise an indirect influence over the criminal justice
system. ―Justice should not only be done, it should manifestly and
54
Markandey Katju, Ideal and reality: Media‘s role in India, http://www.hinduonnet.com.
55
P. Sainath, ―Lost the Compass? Rural India is a giant canvas that is begging the media to
do a portrait‖.
56
Ramachandra Guha, Watching the Watchdog-Time for the press to look within, The
Telegraph, May 10, 2008, http://www.telegraphindia.com.
57
Nancy L. Trueblood, Curbing The Media: Should Reporters Pay When Police Rides
Along Violate Privacy?, 84 MARQ.L.REV., 541, 549.
58
Jessica Lal Murder Case and the Rule of Law, http://cbcnn.blogspot.com.
Legal Mirror 62
undoubtedly be seen to be done‖59. Psychological pressures stemming from

media scrutiny could possibly taint verdicts to conform to public opinion
rather than the evidence offered at trial.60Justice Bilal Nazki said the
credibility of a judge is at stake when a trial by media declares a person
guilty but the judge gives a differing opinion based on facts.61
For example, a provision of the English Criminal Justice Act of 1967,

involving the suspending of sentences of imprisonment, is cited as a law that
was passed as a result of the direct influence of public opinion.62
In Labor Liberation Front v. State of Andhra Pradesh63, the High Court of

Andhra Pradesh indicated the abyssal levels, to which the norms of
journalism have drifted. Justice L. Narasimha Reddy frowning upon the
practice of ‗media-by-trial‘ stated ―the freedom of the prosecuting agency,
and that of the Courts, to deal with the cases before them freely and
objectively, is substantially eroded, on account of the overactive or
proactive stances taken in the presentations made by the print and
electronic media. Once an incident involving prominent person or
institution takes place, the media is swinging into action and virtually
leaving very little for the prosecution or the Courts to examine the matter.
Recently, it has assumed dangerous proportions, to the extent of intruding
into the very privacy of individuals. Gross misuse of technological
advancements, and the unhealthy competition in the field of journalism
resulted in obliteration of norms or commitment to the noble profession. The
freedom of speech and expression which is the bed rock of journalism is
59
R v. Sussex Justices : Exparte McCarthy : 1924(1) KB 256.
60
Brian V. Breheny & Elizabeth M. Kelly, Maintaining Impartiality: Does Media Coverage
of Trials Need to be Curtailed? 10 ST.JOHN‘S J. LEGAL COMMENT 371, 383.
61
CJI says media must not run parallel trials, http://www.asiamedia.ucla.edu.
62
Julian v. Roberts, Public Opinion, Crime, and Criminal Justice, 16 CRIME &JUST. 99,
161 (1992).
63
2005 (1) ALT 740.
Legal Mirror 63
subjected to gross misuse. It must not be forgotten that only those who
maintain restraint can exercise rights and freedoms effectively.‖64
 Right to Fair Trial compromised

The edifice of the Indian criminal justice system is based on the twin
principles of ‗guilt to be proved beyond reasonable doubt‘ and ‗presumption
of innocence until proven guilty‘65.
In T. Nagappa v. Y. R. Muralidhar66, the Supreme Court reiterated, ―An

accused has a right to fair trial. He has a right to defend himself as a part of
his human as also fundamental right as enshrined under Article 21 of the
Constitution of India.‖
Right to fair trial includes the right to be tried an unbiased or prejudiced

judge. This right was enunciated in Bhajan Lal, Chief Minister, Haryana v.
Jindal Strips Ltd.67The right to fair trial is guaranteed under the
Constitution. It entitles a litigant to adjudication of a cause by a judge who
is perceptibly and demonstrably unbiased and without prejudice.
In Zahira Habibullah Sheikh v. State of Gujarat68, the Supreme Court

explained, ―Denial of a fair trial is as much injustice to the accused as is to
the victim and the society. Fair trial obviously would mean a trial before an
impartial Judge, a fair prosecutor and atmosphere of judicial calm. Fair trial
means a trial in which bias or prejudice for or against the accused, the
witnesses, or the cause which is being tried is eliminated.‖69
64
bid., para 14.
65
Article 14, paras 2 and 7 of International Covenant on Civil and Political Rights, 1966.
66
JT 2008 (6) SC153, 2008(3) KLT 158 (SC), (2008) 5 MLJ 320 (SC), 2008 (6) SCALE
642, (2008) 5 SCC 633.
67
JT 1994 (5) SC 254, (1995) 109 PLR 200, 1994 (3) SCALE 703, (1994) 6 SCC 19,
[1994] Supp 2 SCR 445, (1995)1UPLBEC80.
68
(2004) 4 SCC 158.
69
Ibid., para 36.
Legal Mirror 64
Sensational journalism has also had an impact on the judiciary. For instance
a ‗trial-by-media‘ began almost immediately after Afzal‘s arrest in the
attack on the Indian Parliament case. Only one week after the attack, on 20
December 2001, the police called a press conference during the course of
which Afzal ‗incriminated himself‘ in front of the national media. The
media played an excessive and negative role in shaping the public
conscience before Afzal was even tried. This can be demonstrated by the
observations of Justice P. Venkatarama Reddi in upholding the imposition
of the death penalty on Mohammed Afzal, ―the incident, which resulted in
heavy casualties, had shaken the entire nation and the collective conscience
of the society will only be satisfied if the capital punishment is awarded to
the offender.‖70
If the public believes that justice is a noose around Afzal Guru‘s neck in the
Parliament Attack case, then no dearth of evidence against him will justify
his acquittal. The heightened public clamor created by the media leads to a
conviction in ‗the court of public opinion‘, a precursor to a conviction in a
court of law.
Similarly, S.A.R. Geelani, one of Afzal‘s co-defendants in the Parliament

attack case, was initially sentenced to death for his alleged involvement
despite an overwhelming lack of evidence. Even though the prosecution‘s
case was based on a lone telephonic conversation between Geelani and his
brother, the media portrayed him as a dangerous and trained terrorist. On
appeal, the Delhi High Court overturned Geelani‘s conviction and described
the prosecution‘s case as ―at best, absurd and tragic‖.
70
State (N.C.T. of Delhi) v. Navjot Sandhu @ Afsan Guru, AIR 2005 SC 3820.
Legal Mirror 65
Even though the Supreme Court has tacitly admitted that adverse publicity
may deny the accused person a fair trial, it denied Vikas Yadav‘s plea for
transfer of appeal against the conviction by the Delhi High Court to the
Allahabad High Court in the Nitish Katara murder case.71
 Right to Privacy
Article 12 of Universal Declaration of Human Right enunciates, ―No one
shall be subjected to arbitrary interference with his privacy, family, home or
correspondence or to attacks upon his honour and reputation. Everyone has
the right to the protection of the law against such interference or attacks.‖
The following observations of the Supreme Court in R. Rajagopal v.State of
Tamil Nadu72are true reminiscences of the limits of freedom of press with
respect to the right to privacy: ―A citizen has a right to safeguard the
privacy of his own, his family, marriage, procreation, motherhood, child
bearing and education among other matters. No one can publish anything
concerning the above matters without his consent, whether truthful or
otherwise and whether laudatory or critical. If he does so, he would be
violating the right to privacy of the person concerned and would be liable in
an action for damages. Position may, however, be different, if a person
voluntarily thrusts himself into controversy or voluntarily invites or raises a
controversy.‖73
In the Aarushi murder case, the newspapers were flooded with the
transcripts of the deceased girl‘s emails and casting aspersions on her
character.
71
Supreme Court not moved by Vikas‘ ‗media glare‘ plea, http://www.asiamedia.ucla.edu.
72
AIR 1995 SC 264.
73
Ibid., para 28.
Legal Mirror 66
 Reputations Tarnished
Article 19 of the International Covenant on Civil and Political Rights, 1965,

enunciates, ―Everyone shall have the right to freedom of expression; this
right shall include freedom to seek, receive and impart information and
ideas of all kinds, regardless of frontiers, either orally, in writing or in
print, in the form of art, or through any other media of his choice‖.
However, the exercise of such rights carries with it special duties and
responsibilities and the same may be subject to certain restrictions like
respect for the rights or reputations of others. Right to reputation is an
integral part of one‘s life.74 It is a facet of right to life of a citizen under
Article 21 of the Constitution of India.75
During the hearing of the public interest litigation filed by advocate Surat
Singh in the Aarushi Talwar murder case before the Supreme Court,
Justices Altamas Kabir and Markandey Katju remarked, ―Nobody is trying
to gag the media. They must play a responsible role. By investigation, the
media must not do anything which will prejudice either the prosecution or
the accused. Sometimes the entire focus is lost. A person is found guilty even
before the trial takes place. See what happened in this [Aarushi] case. Till
today what is the evidence against anyone? We will lay down guidelines on
media coverage. We are not concerned about media criticizing us. Let
media say anything about us, we are not perturbed. Our shoulders are
74
State of Bihar v. Lal Krishna Advani, AIR2003SC3357, 2003(3)BLJR2020,
JT2003(Suppl1)SC335, 2003(7)SCALE524, (2003)8SCC361; State of Jammu and Kashmir
and Ors. v. Bakshi Gulam Mohammad and Anr., MANU/SC/0050/1966; Smt. Kiran Bedi
and Jinder Singh v. Committee of Inquiry and Anr., MANU/SC/0512/1989.
75
Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nadkarni and
Ors.
Legal Mirror 67
broad enough and we will ignore it [the criticism]. We are for media
freedom. What we are saying is there is no absolute freedom‖76
 Meddling with the criminal justice system
Due to such high-powered salesmanship of ideas, the proactive stance of the

media is beginning to intervene with the administration of justice. There is
excessive pressure on the police. A recent example of the media meddling
would be the Reliance Infocomm murder case of its employee, Anandita
Mishra, where due to the media reports; the prime accused in the murder
absconded. The Bombay Police Commissioner is upset with the media for
jumping the gun, ―I think that he got a whiff of it after reading the reports
and gave them the slip. Now a manhunt has been launched to nab the
accused.‖77
The lives of witnesses are compromised. In State (N.C.T. of Delhi) v. Navjot

Sandhu, the Court deprecated the practice of exposing the accused persons
to public glare through TV and in case where Test Identification Parade or
the accused person being identified by witnesses (as in the present case)
arise, the case of the prosecution is vulnerable to be attacked on the ground
of exposure of the accused persons to public glare, weakening the impact of
the identification. Due to media propaganda, lawyers of unpopular accused
persons are subjected to public derision. Every person has a right to get
himself represented by a lawyer of his choice and put his point before the
adjudicating court and no one has the right to debar him from doing so. For
an instance, when eminent lawyer Ram Jethmalani, the Indian Clarence
Darrow, decided to defend Manu Sharma, a prime accused in a murder case,
he was subject to public derision and ridicule by the media.
76
J. Venkatesan, Apex Court to lay down coverage norms, http://www.thehindu.com.
77
Trail by Media, April 27, 2007, HRF/164/07, http://www.hrdc.net.
Legal Mirror 68
Another example of this would be the serial-killings in Noida. Due to

extensive media coverage of police investigations, the owner of the house
where the corpses were found, Mohinder Singh Pandher, and his domestic
help Surendra Kohli, the prime suspects of having committed these crimes
bore the brunt of sensational journalism. Influenced by media coverage,
much of it proclaiming that the two men had already confessed to the
killings, the local Bar Association announced that it had decided that no
advocate from Noida would defend Pandher and Kohli in court. The media
forgets that right to have a lawyer of one‘s choice is a fundamental right
under the Indian Constitution.78
Media as a Watchdog
The press is one of the vital organs of modern life, especially in a

democracy. The Press has tremendous powers and responsibilities. The
Press must be respected and it must also have co-operation.
- Jawaharlal Nehru (Speech in Parliament. 16/5/1951)
Cases like the Jessica Lal and Nitish Katara murder cases, which involve
high profile and powerful people as the accused persons, do benefit from
such incessant media exposure. Neelam Katara, mother of the deceased in
the Nitish Katara murder case, succeeded in getting a verdict from the lower
courts due to the support of the media and the public opinion generated
through print and electronic media. In Praful Kumar Sinha v. State of
Orissa79, a writ against sexual exploitation of blind girls in school was filed
before the Supreme Court on the basis of an article published in a
newspaper. Even though sexual assault was difficult to prove, the Apex
Court, on the basis report submitted, gave directions to the institution for
78
Ranchod Mathur Wasawa v. State of Gujarat,(1974) 3 SCC 581.
79
AIR 1989 SC 1783.
Legal Mirror 69
proper management. Renowned journalists like Sheela Barse, a champion of

human rights, have time and again knocked the doors of Supreme Court to
take notice of the plight of the disempowered and marginalized. In Sheela
Barse v.Union of India80, the journalist, through a letter addressed to the
Chief Justice of India, made the Apex Court take cognizance of the
deplorable conditions of the mentally challenged woman locked up in the
Presidency jail, Calcutta. Due to this initiative, Commissioners were
appointed to investigate and report on the conditions of prisons where
women and children were detained.
In Sheela Barse (I) v. Union of India81, praised the work of Sheela Barse, a
freelance journalist, in the area of juvenile justice. Quoting Justice
Bhagwati:
The petitioner has undertaken great social service by bringing this matter
before the Court. She has stated to us that she intends visiting different parts
of the country with a view to gathering further information relevant to the
matter and verifying the correctness of statements of facts made in the
counter affidavits filed by the respondent States...We would like to point out
that this is not an adversary litigation and the petitioner need not be looked
upon as an adversary. She has in fact volunteered to do what the State
should have done. We expect that each State would extend to her every
assistance she needs during her visit as aforesaid.
The Supreme Court also provided a sum of rupees ten thousand to meet her
expenses. This case demonstrates that media personnel and the judiciary do
not have to be at loggerheads for the common good instead they may
complement each other.
80
(1995) 5 SCC 654.
81
(1986) 3 SCC 596, para 8.
Legal Mirror 70
The Supreme Court in Sheela Barse (II) v. Union of India82impressed upon

the State Governments that remand homes and observation homes must be
set up where children accused of an offence can be lodged during the
pending investigation and trial. Taking cognizance of the debilitating effect
prisons may have on the personality of children, the Court directed that on
no account should the children be kept in jail and if a State Government has
not got sufficient accommodation in the remand homes or observation
homes, the children should be released on bail instead of being subjected to
incarceration in jail.
The public hue and cry created in the Jessica Lall murder case by the media
forced the Delhi Police to file an appeal in the High Court against the
acquittal of Manu Sharma by the Trial Court. The fatal expose by NDTV,
telecasted on May 30, 2007, showing the prosecution witness, Sunil
Kulkarni, negotiating his testimony for monetary considerations to bail out
Sanjeev Nanda, the accused in the hit and run case, propelled the Delhi High
Court to suo motu initiate contempt action against R.K. Anand and I.U.
Khan. In the Priyadarshini Mattoo murder case, when the Delhi High
Court convicted Singh, seven years after a trial court had acquitted him, the
deceased father, Chaman Lal Mattoo, the woman's father, wrote in the
Indian Express newspaper ―I can't thank the media enough. If it was not for
the media, we would have lost the spirit and the battle.‖83 As part of social
action litigation, the Supreme Court accepted a letter sent by a lawyer on the
basis of a newspaper report published by Indian Express on the horrid plight
of bonded labor as a writ petition under Article 32 of the Constitution.
Subsequently, a notice was sent to the District Collector to ascertain the
veracity of the report and submit a detailed report on the working conditions
82
(1986) 3 SCC 632, para2.
83
Palash Kumar, India Media plays judge as justice system fails,
http://www.asiamedia.ucla.edu.
Legal Mirror 71
in the mines. This newspaper woke up the State from its bureaucratic stupor
into action and to begin with, minimum wages were prescribed to be
provided to such workers.
In D.K. Basu v. State of West Bengal84, the Supreme Court took cognizance
of the existence of custodial violence after a letter was sent to the Chief
Justice of India drawing attention to newspaper reports regarding death in
police lock-ups and custody.
The collateral benefit is that, today, more Indians are aware of their
constitutional rights than ever before.85 The role of the media in such cases
is laudable as the disempowered and marginalized get access to justice in
matters that have been brushed under the carpet due to gundaraj. Wearing
the activist avatar, media is merely exposing the rot within our existing
judicial system. The question is which is the greater evil - the intrusive role
of the media, which disregards all norms of propriety, or its role as the
facilitator of justice?86
E. International perspective
International law perspective regarding rights of suspect or accused
According to criminal jurisprudence the accused is presumed to be innocent

unless the contrary is proved in court of law and therefore it is necessary to
provide all legal safeguard to accused. According to Constitution of India
accused is having different rights like, right to silence mean right against
84
(1997) 1 SCC 416.
85
A.P. Shah, Judges And Media- Inter-Relationship,
www.indlaw.com/bc/JusticeAPShahpaper.doc.
86
200th Report of the Law Commission of India on ―Trial by Media-Free Speech and Fair
Trial Under Criminal Procedure Code, 1973 (Amendments to the Contempt of Court Act,
1971).
Legal Mirror 72
self-incrimination under Art. 20(3), it has right to life with personal liberty
and right to fair trial under Art. 21, the person who is arrested has to be
produced before a Magistrate within 24 hours of the arrest, all this rights has
been provided by law to give legal protection to accused. International law
has also recognized different rights of the accused to protect accused from
injustice which is occurring due to undue interference with administration of
justice by media.
It is important to consider fundamental concept of human rights under

International conventions and the Madrid principles.
Universal declaration of human rights (1948)
UDHR has recognized certain rights of the suspect or accused under its
various articles, which is basic human right. The accused is having full
equality to a fair and public hearing by independent and impartial tribunal in
the determination of his rights and obligation and of any criminal charge
against him87. According to Art.11 (1) of UDHR, everyone charged with
penal offence has the right to be presumed innocent until proved guilty
according to law in the public trial at which he has all the guarantees
necessary for his defense.
International covenant on civil and political rights, 1996
According to Article 14(2) of ICCPR, everyone charged with a criminal

offence shall have the right to be presumed innocent until proved guilty
according to law. In a criminal proceeding, according to Art.14 (3) (g),
everyone shall be entitled that it should not be compel to testify against
himself or to confess guilt.
87
Art.10. UDHR, 1948.
Legal Mirror 73
European Convention for protection of human rights and

fundamental freedom, 1950
According to Art.6(1) of the European Convention, in the determination of

the civil rights and obligations or of any criminal charge against him,
everyone is entitled to affair and public hearing within a reasonable time by
an independent and impartial tribunal established by law. According Art.6
(2), everyone charged with a criminal offence shall be presumed innocent
until proved guilty according to law.
The Madrid principle related to media and judicial independence
In January 1994, a group of legal expert and media representatives,

convened by International commission of Jurist and the main objectives of
meeting were to examine relationship between media and judicial
independence as well as to formulate principle related to freedom of
expression and judicial independence.
According to Madrid principle, freedom of speech and expression include

freedom of press. It is a right and duty of media to gather and convey
information to public and to comment on the administration of justice,
including case before, during and after trial, without violating presumption
of innocence. The basic principle has not excluded preservation by law of
secrecy during investigation of crime even when investigation forms part of
the judicial process because it will give benefit to suspect or accused for
preserving presumption of innocence.
The law may restrict basic principle in relation to the criminal proceeding in
the interest of administration of justice to the reasonable extent for the
prevention of serious prejudice to a defendant and also for the prevention of
witness, jury member and victim from serious harm and improper pressure.
Legal Mirror 74
Media publication recognized as prejudicial to an accused
It is necessary to consider that which category of publication may be

recognized as prejudicial to suspect or accused:
 Publications regarding merits of the case: The publications which

comment upon the merits of the case may be consider as prejudicial to
suspect or accused, if such publication prejudge the fact and influenced
the Court, witnesses and others. It is permissible to publish the fact of
arrest and extract nature of charge but if media tries to perform function
of judiciary without the safeguards of procedure and do assertion of guilt
or innocence of suspect or accused then it will be treated as serious
contempt.
 Publication regarding the character of accused or previous conviction:
The publication concerning about character of accused, which is having
tendency to excite the feeling of hostility against the accused amount to
contempt because such publication can have influence upon judges,
which may induce court to be biased. In R v. O‘Dogherty88, Pigot CB
stated that observation calculated to excite feeling of hostility toward
any individual who is under a charge amount to a contempt of court. The
publication of previous conviction is recognized as serious contempt
because it has a tendency to prejudice the mind of the judges. In AG
(NSW) v. Willisee89, Moffit P stated that there is Popular and deeply
rooted belief that it is more likely that an accused person committed the
crime charged if he has a criminal record, and less likely if he has no
record. The need to prevent prejudice caused by past criminal record is
88
(1848) 5 Cox C.C 348 (354).
89
(1980) (2) NSWLR 143 (150).
Legal Mirror 75
one of the most deeply rooted and zealously guarded principles of the
criminal law90.
 Publication regarding Confession to police: Although confession made
to police is not admissible in Court of law but still such publications of
confessions before criminal proceeding are treated as serious contempt
because it prejudice and affect court‘s impartiality. In New South Wales,
during the police media conference following the arrest of a suspect in a
murder inquiry, police officer answered a question of a journalist which
suggested that the accused confessed to the police and hence he was
held to be in contempt91.
 Publication regarding witnesses: Any publication regarding witnesses
which make them an object of public criticism then it amount to serious
contempt, as a result witnesses may not appear before court. There is
need to impose reasonable restrict upon this kind of publication because
discrediting witnesses is also prejudicial to a trial.
 Premature publication of evidence: If media conduct private
investigation and do publication in which he assert guilty or innocent of
accused before or during the trial then it amount to serious contempt
because it can prejudice the court, witnesses and the public. There is no
guarantee that the facts published by media are true because no
opportunity given to cross examine the facts.
F. Conclusion
From the above account it becomes clear that the media had a more negative
influence rather than a positive effect (except for a few exceptions here and
there). The media has to be properly regulated by the courts. The media
cannot be granted a free hand in the court proceedings as they are not some
90
Gisborne Herald Co. Ltd. vs. Solicitor General, 1995(3) NLLR 563 (569) (CA) 196.
91
AG (NSW) v. Dean (1990) 20 NSWLR 650.
Legal Mirror 76
sporting event. The law commission also has come up with a report on
‗Trial by Media: Free Speech vs. Fair Trial under Criminal Procedure
(Amendments to the Contempt of Court Act, 1971)‘ [Report number 200
prepared in 2006].
The above analysis reveals us the gravity of the situation as it persists in

India. An ideal proposal will be that the Indian press and the Indian people
are not at present democratic enough to allow the press to intrude in the
judicial process. What will an ideal proposition is to not allowing the media
trial at this moment. It‘s definitely an ideal proposition to allow controlled
media reporting of the cases once the media is supposed to come out of the
profit and sensational considerations. The media has to play the role of a
facilitator rather than tilting the scales in favor of one or the other party.
The precedence given by the Orissa and Punjab High Courts to the right to
fair trial over freedom of expression is an excellent example of judicial
craftsmanship since the loss of freedom of press is not absolute but merely
temporary. The loss of immediacy is the lesser evil of the two. The media
can print its critique of the judicial process with wild abandonment after the
trial, as Justice Katju has rightly remarked, ―Our shoulders are broad
enough and we will ignore it [the criticism]. We are for media freedom.‖
The most suitable way to regulate the media will be to exercise the contempt
jurisdiction of the court to punish those who violate the basic code of
conduct. The use of contempt powers against the media channels and
newspapers by courts have been approved by the Supreme Court in a
number of cases as has been pointed out earlier.
Legal Mirror 77
Case comment
ABC VS. THE STATE (NCT OF DELHI)

Anshika Juneja*
Introduction of case
Parties Name- ABC vs. the State (NCT of Delhi)
Judge- Vikramajit Sen, J.
Citation- 2015 SC 609
In the case of guardianship of the child the legal interests of the mother and
the father and the child are to be taken into consideration. The Court
exercises paren patrae jurisdiction in custody or guardianship disputes; for
the welfare of the child.
Issue
Whether to attain the guardianship of the child, it is imperative for an unwed
mother to specifically notify the putative father of the child.
Facts of the case

This Appeal is directed against the Judgment delivered by the Guardian
Court, High Court of Delhi. The Appellant, who adheres to the Christian
faith, is well educated, gainfully employed and financially secure. She gave
birth to her son in 2010, and has subsequently raised him without any
assistance from his putative father. In the desire of making her son her
nominee in all her savings and other insurance policies, she applied for
guardianship which was dismissed on the grounds that it cannot be
entertained unless she discloses the name and address of the father of her
child. She thereupon filed an application under Section 7 of the Guardians
and Wards Act, 1890 (the Act) to be declared as the sole guardian. The
Legal Mirror 78
Appellant has published a notice of the petition in a daily newspaper,

namely Vir Arjun, Delhi Edition but is strongly averse to naming the father.
She has filed an affidavit stating that if at any time in the future the father of
her son raises any objections regarding his guardianship, the same may be
revoked or altered circumstantially.
Respondent side
Contentions on behalf of the State that Section 11 requires a notice to be
given to the ‗parents‘ of a minor before a guardian is appointed; and that as
postulated by Section 19, a guardian cannot be appointed if the father of the
minor is alive unfit to be the guardian. Literal rule of interpretation1 was
applied by the counsel, i.e. giving words their plain, ordinary, dictionary
meaning of the statute as the words of the act in section 11 and 19 were
interpreted as they were written. It lays emphasis on the role of the judge is
to apply law – not to make it as there can be disagreement as to what
amounts to the ordinary or natural meaning. It upholds the separation of
powers and recognises Parliament as the supreme law maker.
The guardianship cannot be given to mother only as a natural father could
have an interest in the welfare and custody of his child even if there is no
marriage; and that no case can be decided in the absence of a necessary
party therefore. The right of the child to know the identity of his or her
parents is recognised in the Convention on the Rights of the Child, acceded
by India on 11th November, 1992.
Appellant side
Appellants have argued that she does not want the future of her child to be
marred by any controversy from her paternity. As per Section 7 of the Act,
*Student, Symbiosis Law School Pune.

1
Literal rule of interpretation
Legal Mirror 79
the interest of the minor is the only relevant factor for appointing a
guardian. Furthermore, it is contented that her own fundamental right to
privacy will be violated if she is compelled to disclose the name and
particulars of the father.
Also by applying Golden rule of Interpretation2 in which the courts may go
beyond the words of the statutes and take help of other resources which
seem beneficial for the concerned party and are made for greater good. It is
the modification of literal rule, as in this case section 11 and 19 should lean
towards construction which would lead to not sending of the notice to the
father who is married and any publicity of his fathering a child out of
wedlock would have repercussions in his present family, and also to her and
her child.
Court side
The court is of the opinion that the Appellant has taken care to clarify that if
in the future her son‘s father shows any interest, she would not object to his
participation in the litigation, also the custody issue can be revisited. By
applying the Purposive Rule 3to interpret the statute it is the duty of the
court to accept an interpretation which promotes the object and ascertain the
purpose for enacting the Act by the legislation. The purposive approach
involves looking for the intention of Parliament what they meant to achieve
which would be in the best interest of the party. Therefore, the task before
us is to interpret the law of the land in the light of keeping with legislative
intent and prevailing case laws. Since the father lacked involvement in the
child‘s life, there is no reason to prioritize his rights over those of the
mother.
2
Golden rule of Interpretation
3
Purposive Rule of Interpretation
Legal Mirror 80
The rule of Beneficent Construction 4states that when the usual meaning of
the words does not convey the object or intention of the legislature, a more
extended meaning may be attributed to it. Hence in applying this rule to
Section 11 which is purely procedural thus there will be no harm or mischief
in relaxing its requirements to attain the intendment of the Act for the
benefit of the parties.
When determining the meaning of particular words the courts make certain
presumptions5 about the law which is one other rule of interpretation. If the
statute clearly states the opposite, then a presumption will not apply and it is
said that the presumption is rebutted. Given that the term ―parent‖ is not
defined in the Act, we presume it; in the case of illegitimate children whose
sole caregiver is one of his/her parents, to principally mean that parent
alone.
Thereby a court uses Logical Rule of Interpretation 6to know the true
intention of the legislation only when interpreted in reference to other facts
of the case; the court must take in to consideration the Object of the Act and
needs of Society. Hence in this case as per the facts it is thus not mandatory
requirement of notice to be served to the putative father in connection with a
guardianship. The law is dynamic and is expected to diligently keep pace
with time and the legal conundrums and enigmas it presents. Having
received knowledge of a situation that vitally affected the future and welfare
of a child the law is interpreted with a beneficial perspective hence applying
the golden rule of Interpretation to achieve the objective.
Supporting statutes
Section 6(b) of the Hindu Minority and Guardianship Act, 1956 gives
primacy to the mother with respect to natural guardians of illegitimate
4
Beneficent rule of Construction
5
Presumptions Rule
6
Logical Rule of Interpretation
Legal Mirror 81
children. Mohammedan law accords the custody of illegitimate children to

the mother. Section 8 of the Indian Succession Act, 1925, applicable to
Christians in India, the domicile of an illegitimate child is in the country in
which at the time of his birth his mother is domiciled.
Section 2(2) of the Children Act 1989, U.K states parental custody of a child
born of unwed parents is with the mother in all cases. In U.S.A., each State
has different child custody laws but predominantly the mother has full legal
and physical custody. In Ireland, Section 6(4) of the Guardianship of Infants
Act, 1964 ordains - ―The mother of an illegitimate infant shall be guardian
of the infant.‖ In South Africa, according to the Children‘s Act of 2005, the
biological mother of a child, whether married or unmarried, has full rights
over the child.
Cases referred
Laxmi Kant Pandey vs. Union of India7, this Court by adopting Logical,
Golden and Presumptions rules of interpretation prohibited notice of
guardianship applications from being issued to the biological parents of a
child in order to prevent them from tracing the adoptive parents and the
child. Although the Guardians and Wards Act as by literal rule of
interpretation was directly attracted in that case, nevertheless it is important
as it reiterates that the welfare of the child takes priority above all else,
including the rights of the parents.
Githa Hariharan v. Reserve Bank of India8, in the context of Section 6 of
the Hindu Minority and Guardianship Act as well as Section 19 of the
Guardians and Wards Act, this Court had clarified that ―the mother can act
as natural guardian of the minor and all her actions would be valid even
during the life time of the father who would be deemed to be ‗absent‘ due to
non involvement.‖ Thus this Court interpreted the legislation by using the
7
Laxmi Kant Pandey vs. Union of India ,1 985 (Supp) SCC 701
8
Githa Hariharan v. Reserve Bank of India , (1999) 2 SCC 228
Legal Mirror 82
various rules of interpretation like Golden, Purposive, and Beneficial, and

held that in a manner conducive to granting the mother, who was the only
involved parent, guardianship rights over the child.
Decision of the court

The Guardian Court is directed to consider the Appellant‘s application for
guardianship expeditiously without requiring notice to be given to the
putative father of the child.
Conclusion
It is thus abundantly clear that the predominant legal thought in different
civil and common law jurisdictions spanning the globe as well as in
different statutes and precedents within India and applying all the rules of
interpretation assists in a meaningful, dynamic and enduring interpretation
of the law as it exists in India. Without these rules of interpretation the
judgement would rely on the literal construction and justice would not have
prevailed. The court correctly applied these rules of statutory interpretation
to bestow guardianship and related rights to the mother of a child born
outside of wedlock.
Legal Mirror 83
THE PENDULUM STANCE OF INDIAN COURTS ON

FORENSIC EVIDENCE
Anurag Pandey*
Analyzing the case laws for improving legal reliability upon Forensic
Evidence
Introduction
Sec. 45 -51 deals with a very important aspect of the evidence law, i.e.
Expert Opinion. One such need in criminal law is the opinion of forensic
experts. We have in recent times seen a lot of action in this field in infamous
cases like Noida Double Murder Case, Delhi Rape Case, Nithari case, The
Satyam case and many more. This field of forensics not only contains
ballistics or postmortem; but also includes much recent entries such as
D.N.A. Profiling or even electronic evidences.
But in Indian context the forensic opinions and evidences does not hold a
strong position in the statutory books as in comparison to various kind of
evidences. But in the court of law, this particular kind of evidence and its
corroborative value in a case have seen substantive fluctuations. Some;
coming forward in relying on it over other evidences, where as some going
back in the old statutory standing; hence, questioning the reliability of the
forensic evidence.
In this piece of work, the author will observe and mark the development and
changes in the legal standing of the use and admissibility of these evidences
in the court of law. We will also observe the change in the practical use of
this particular form of evidence by and in the court of law, and for this
purpose will chiefly be analyzing different case laws of the Indian and
foreign judiciary which have resulted in any change in this field of law.
Legal Mirror 84
The following work of the author will primarily be the compilation of the
court‘s judgment in various cases in context of the concerned issue and will
be followed by the author‘s opinion for the improvement in the present
situation of the issue in concern after analyzing the judgments.
Standing of Forensics Evidence in Law and Courts
Before starting the discussion, one have to acknowledge that the topic dealt
is a part of a bigger field known as expert opinion and hence at various
instance the discussion will have to fluctuate its concern from a narrow
topic of Forensics Expert opinion to a much general and wider field of laws
in general dealing with the Opinion of Third Person. This is to prove the
development of the concerned topic with the background of a much larger
context.
Secondly, In the discussion the author will be concentrating on the case laws
dealing with different field of Forensic Evidences including; Postmortem,
Ballistics, Finger Printing, DNA Profiling, Toxicology, Blood and other
Bodily acquired evidences, Hand writing and Document Evidence, and
Tracker Dog Evidence. Among these some we will look in brief, where as
some will be dealt in detail.
Side by side we will also discuss in brief the legal standing on the evidences
derived from NARCO and other form of lie detector tests but will not be
dealing it in detail because of the Hon‘ble S.C. calling it unconstitutional
and only can be performed with the defendants request to go through it. The
administration of these controversial tests has been recently observed in the
infamous Noida Double Murder Case.1
*Student - NALSAR University of Law, B.A. L.Lb. (Hons.), 3 rd year.1

http://indiatoday.intoday.in/story/Aarushi+case:+Talwar+couple+subjected+to+narco+tests
/1/83536.html
Legal Mirror 85
Now proceeding further; as we all know, as similar to almost all form of

expert opinion, even forensic opinion face the common issue of unreliability
and some like the polygraph and NARCO test are even deemed as
unconstitutional. This is because of various reasons which range from the
inherent defect of this particular type of evidence and some because of the
legal sanction. The unreliability was highlighted in the case of Murari lal v.
State of Madhya Pradesh2 where the court talked about the inherent defect
of the expert opinion evidence, and said that the cause of the unreliability of
this type of evidence is not because of experts in general being an unreliable
witness, but is rather chiefly because of the fallibility in all of the human
judgment which can make an expert to come to a wrong opinion. But this
unreliability is not only caused by the above mentioned defect but there are
numerous other technical glitches which causes this evidence to be
superseded by other form of evidence.
One of those glitches is the favoring done by the expert to the side they are
representing as both sides are free to bring their own experts on a same
matter (often experts are called from both sides in a case.).3 This glitch is a
reason to the court skeptic view towards expert opinion for expert evidence
as they are believed to come with a biased mind and opinion.4 But the
greatest of the fall back is known to be the experts love with their own
opinion causing them to be unable to see the other side. The Hon‘ble court
in this regard has spoken in the case of People v. Patrick5 where the court
said that
2
AIR 1980 SC 531,
3
Dr. V. Nageswara Rao; The Indian Evidence Act; 1st Edition, Pg. No.: 229
4
Ibid
5
182 NY 131
Legal Mirror 86
“ Expert witnesses are affected by that pride of opinion and that

kind of mental fascination with which men are affected when
engaged in the pursuit of what they call scientific enquiry.”
Because of these reasons and others like these, there are safeguards kept by
both in law and by court. The Indian Evidence act has provided safeguards
with regards to expert opinion in Sec.: 159, 160, and 161 which talks about
the ‗Refreshing of the memory of the Expert‘ by making reference to
professional treaties, Repots of the tests done, and the report documents and
other documents used for the redressing can be asked by the opposition
party for scrutinizing and cross questioning of the witness and conclusion
there off.6 Whereas the court in the case of ‗Mhd. Zahid v. State of Tamil
Nadu‘7 and other cases has, time and again mentioned about proper
authorities to be cited by the expert for proving his/her opinion or
conclusion reached after the conducted case. Hence, clearly showing that
these kinds of evidences just hold a corroborative value and is needed to be
paired by other kind of evidences for conviction or acquittal of a person.8
The same was expressly mentioned in the case of Deputy Commissioner Of
Agricultural I.T. v. E.V. Industries9, Where the court mentioned that they are
not bound by the conclusion reached by the expert until completely
satisfied; for which it is needed for an expert to mention to the court all the
materials which induced them to come to their conclusion and also to
support their conclusion or opinion by reasons and authority.10
Last but not the least we have to keep in mind that after the famous
judgment of our Hon‘ble S.C. in the case of Selvi v. State of Karnataka11 the
6
Indian Evidence Act, 1872
7
AIR 1999 S.C. 2416
8
S. Gopal Reddy v. State of A.P.; AIR 1996 SC 2184
9
1974 33 STC 308 Ker
10
Ibid; Supra 7
11
AIR 2010 SC 1974
Legal Mirror 87
court has changed the admissibility, reliability and even the constitutionality
of various kind of forensic evidence which will be dealt in the succeeding
section of the work.
Opinion of Court on different Forensic Evidences

As one can notice that the field of forensic evidence has a vide scope and
has multiple branches. This doesn‘t mean that all the branches hold equal
footing or reliability for deciding a case in the eye of the courts. Where
some forensic evidences like Finger Prints and D.N.A. Profiling have more
reliability in the eye of the courts in compared to other forensic evidences
like Hand Writing, Blood Tests, Forensic Science (Postmortem) or Tracking
Dog Evidences, where as some like NARCO and Polygraph tests are even
deemed illegal and unconstitutional with exception to defendant requesting
one.12
Where on one hand the court have given a higher degree of reliability and
trust over the Finger Print and thumb impression evidence in the case of
Mohan Lal and Anr. v. Ajit Singh and Anr.13 Here one Ajit Singh was
accused of the murder and robbery with intent of causing grievous hurt or
death. The court while convicting Nand Lal of the charges accused for
stated that the science of identifying thumb impression is an exact science
and not subjected to any doubt or any mistake, Whereas the same opinion of
the court was seen mirrored in the case of Muralilal v. State of Madhya
Pradesh14. parallel to this it has shown is unreliability on the evidence
gathered from footprints and other sources like Postmortem15 without
credible reasoning and credible authorities being cited by the experts. For
the footprint evidence the court held the same in the cases of Kapil Singh v.
12
Ibid
13
AIR 1978 SC 1183
14
Supra 2
15
Supra 7
Legal Mirror 88
State of Bihar16 and Pritam Singh v. State of Punjab17 , the court has held
that in its very nature the Footprint Evidence is a very weak type of
evidence and it is not safe to rely upon it for delivering justice, hence
discarding it completely, and has even called it a rudimentary science
respectively. The same clause was used but in a bit lighter note in the case
of Ganesh Gogoi v. State18 where the court didn‘t discarded the whole of the
evidence completely rather gave it a corroborative value and need to be
paired with another evidences for being admissible in the court of law. This
is one of the many examples which shows the still fluctuating opinion of the
court for various kinds of forensic evidence and has been observed in the
cases with evidence derived from Blood samples for Paternity, evidences
derived from typewritten documents, Tracking dog evidences and many
more. Here in the entire mentioned cases one can observe the courts
contradicting stand and reliability over the disputed evidence source.
Hence, we can observe that in spite being one of the oldest laws surviving in
the democratic India without many legislative changes, this law still doesn‘t
have a clear standing among the judiciary. Hence, rendering judges a wide
scope of interpretation and discretions.
Development and Changes in Forensics Evidence in Indian Judiciary
As is a known fact; the Indian Evidence Act has gone through minimum of
changes and amendment and most of the provisions are intact as they were
in the beginning.19 But in spite of this one can observe the differences in the
stand of the courts on various issues relating to Forensic evidences. This
difference in the opinion of our judiciary has resulted in a wide ambit of
16
1969 SC 53
17
AIR 1956 SC 415
18
AIR 1955 Assam 51
19
Siyuan CHEN, The Future of the Similar Fact Rule in an Indian Evidence Act
Jurisdiction
Legal Mirror 89
interpretation and changes bought in the on field practice of these laws. But
these changes are not all necessary to be of recent time, as some are as old
as the law itself.
The first major change of judicial opinion was recorded in the more than
generation old case of Nagindra Bala v. Sunil Chandra20 given by
Hidayatullah J as a dissenting opinion. Where he said that:
“I do not think that the direction is either correct or complete. It

is incorrect, because a medical witness who performs a post-
mortem examination is a witness of fact, though he also gives an
opinion on certain aspects of the case. Further, the value of a
medical witness is not merely to check upon the testimony of eye
witnesses, it is also independent testimony, because it may
establish certain facts, quite apart from the oral evidence. If a
person is shot at close range the marks of tattooing found by the
medical witnesses would show that the range was small, quite
apart from any other opinion of his. Similarly, fractured bones,
depth and size of the wounds would show the nature of the
weapon used. It is wrong to say that it is only opinion evidence, it
is often direct evidence of the facts found upon the victim‟s
person…..”
The intent of this opinion by Justice Hidayatullah here was to deem the
forensic evidence of post-mortem direct evidence rather than indirect.
Which, if would have been accepted would have changed the whole
standing of the forensic opinion evidence in the law, its structure and use.
But as never being able to materialized, this dissenting opinion of Justice
Hidayatullah has only seen its reference being made for persuasive purposes
in a case rather than for any material changes.
20
AIR 1960 SC 706
Legal Mirror 90
But it is not like with passing time the courts have always been hostile
towards the Forensic Opinion evidences. In various cases, our courts have
advocated the forensics experts and their opinions and have stated that due
weight much be given to the forensic expert evidences.21 The courts in this
way have demarcated the situations in which the evidentiary value of
forensic evidences should increase in the eye of law. In the infamous case of
Md. Zahid v. State of Tamil Nadu, the court held that sufficient weightage
must be given to a doctor whose opinion is based on the autopsy actually
conducted by him, rather than opinion based on the treaties of Medical
Jurisprudence.22
Our Hon‘ble Supreme Court has even held in the case of Mafabhai
Nagarbhai Rawal v. State of Gujrat23 that the doctor who have examined the
deceased and conducted the post-mortem was the only competent witness
who could depose about the injuries and the cause of death, giving him and
his opinion the value superior to the conclusion or opinion of others. Hence,
increasing the standing of the forensic evidences‘ stand and admissibility in
a case.
Moving ahead in the case of Tanviben Pankaj Kumar Divetia v. State of

Gujrat24 the S.C. have even narrowed down the above made decree by
stating that the opinion of the doctor who has examined the person and has
noted the injuries and opined that those injuries cannot be self inflicted will
always get a higher ground from those who have based their opinions on test
reports and injury only. This judgment helped later to be improvised and
interpret in the case of other forensic evidence where the experts‘ advice
over any incidence based on his own examination has superseded the
21
Haryana v. Bhagirath (1999) 5 SCC 96
22
Supra
23
AIR 1992 SC 2186
24
AIR 1997 SC 2193
Legal Mirror 91
opinions based solely on circumstantial and expert opinion including

forensic evidence.25 26
In the recent case of Kapildeo Mandal v. Bihar27 the S.C. have relied on the
evidence given by forensic experts to convict the accused above the oral but
direct evidence of the eye- witnesses and gave the ratio for the case ( Ratio
Decidendi)
“While appreciating variance between medical evidence and

ocular evidence, if there is a inconsistency with the oral evidence
of eye-witness and medical evidence, then evidence has to be
appreciated in a different level.”
Hence, uplifting the value of the forensic expert evidence just parallel and
even in some extent above the direct evidences given by eye-witnesses.
Before the Selvi Judgment, evidences derived from the forensic test like
NARCO, Polygraph and Brain Mapping were advocated and even directed
and compelled by the court of law to be performed. But because of the
invasive nature of the tests in addition to the right against Self-
Incrimination mentioned under Art. 20 (3) under The Constitution of India
to every Indian citizen resulted in the court illegalizing of these tests to
garner any material evidence for or against the accused. But also gave the
express limitation to its illegality if, these tests are asked by the accused to
be performed for proving their innocence. This in a bare view don‘t look to
generate any problems but in a detailed interpretation we can point out
various flaws in this decree passed by the Supreme Court as there is no
concrete method given by the Supreme Court to prove that the consent
25
Vasu v. Santha; AIR [1986] M.P. 57
26
Tandoor Murder case; 1996 CriLJ 3944
27
AIR 2008 SC 533
Legal Mirror 92
given by the accused to the court or judicial officer was not coerced out of
him/her by investigating agency.
But this uplift in the credibility of the forensic evidences by the court of law
was not long lived. As the recent judgment by the apex court in the case of
Om Prakash vs. Dil Bahar28 have directly set back all the uplifting of the
Forensic Evidence to the brink as well as having the potential of causing
more dispute of false cases; here the apex court held that a rape accused can
now be convicted on the sole evidence of the victim, even if medical
evidence don‘t prove of rape. This judgment seen from any interpretation or
viewpoint is never able to prove that it is not going against the prime
jurisprudence of the Indian Criminal Justice System; ‗The Presumption of
Innocence‘ and even against the Latin maxim ‗Audi Alteram Partem‘ ; as
this judgment is setting a bad precedential rule where keeping a victims
testimony over all kind of medical evidences negating the evidence‘s value
to nil will create an imbalance in the representational value of the parties in
the court of law hampering the court to come to any justifiable conclusion of
justice.
28
[2006] Insc 329
Legal Mirror 93
Proposal for Improvement

After going through the imperialistic research of the case laws regarding
Forensic Evidence and trying to see the change and development in its
application by the court of law, one could see that the changing view of
court over the admissibility of the forensic evidence which is influenced by
the fact and circumstance of the case and the societal pressure which was
very well seen in the two recent cases of Noida Double Murder case and
Delhi Rape case respectively and was also the same in the case of Om
Prakash v. Dil Bahar referred in the preceding section, where the media trial
and societal demand has resulted in the fluctuation in the stand of this
evidence in any case.
In authors view this fluctuating stance of the court over forensic evidence
need a decorum but none is been seen; as going against the courts discretion
or limiting it will directly go against the constitutional powers granted to the
courts. Hence, in the view of the author, the court shall in the case of
forensic evidences and its admissibility, constitute a panel of experts and
authorities to approve of the opinion/ conclusion of the forensic expert of
the case and concluding to admit the opinion as evidence in court of law.
The proposed system will be equivalent of that of long gone jury system,
just with the change that this jury will be concentrating on forensic
evidences, just like a medical board is constituted by the court. This board
of forensic experts should be considered to be of more or of equivalent
experience in this field, constituted to check the authenticity of the opinion
reached by the examiner.
In authors view if a deemed obsolete technique is effective in giving an

authoritative voice proving the authenticity of an evidence crucial for
delivery of justice; then opting to that method capable of achieving the
prime goal of justice delivery efficiently will be far better than the one
Legal Mirror 94
where the process is arbitrary and untrustworthy in spite of playing a crucial

role in the concerned cases. Hence, this fallback of technique in author‘s
view is justified.
Conclusion
As we all can see form the research in the preceded sections, our court of
law with exception to certain scenarios and form of forensic evidences has
remained in the pendulum stance for forensic evidence, moving to and fro
on the issue of reliability over this form of evidence. There need to improve
this situation of the court and the reliability issue of the forensic evidence in
the Indian Criminal Justice system.
Forensic evidences are of core importance in the cases where minimum

evidences are available for use, in these situations it is important to get our
forensic institutions and technology developing parallel to that of the
concerned laws; as both are intertwined. Right now we are concentrating to
the legal aspect but we have to accept the importance of the technological
development of the field of forensics as this was always the concern for
courts, jurists and even of a common man29 30 31
. One have to understand
that the reliability have to be achieved to solve the cases and justify the
decree of the court for the same. This development is necessary for the
disputed and scarce evidence cases like Noida Double Murder case. The
development in this field is now the need of the time as well as even laws
and law enforcing agency have to develop and improvised with the
29
http://www.thehindu.com/todays-paper/tp-features/tp-openpage/revamping-forensic-
science-in-india/article670797.ece
30
Committee on Reforms of Criminal justice System, Government of India, Ministry of
Home Affairs, Volume : 1;
http://www.mha.nic.in/hindi/sites/upload_files/mhahindi/files/pdf/criminal_justice_system.
pdf
31
Nivedita Grover, Isha Tyagi; Development of Forensic Science and Criminal
Prosecution- India.; International Journal of Scientific and Research Publications, Volume:
4, Issue 12; ISSN: 2250-3153
Legal Mirror 95
constantly changing time. In conclusion only the following words can be

seen fit to be representing the concern of the author:
“Injustice anywhere is a threat to justice everywhere: Martin Luther King,

Jr.32”
32
http://www.africa.upenn.edu/Articles_Gen/Letter_Birmingham.html
Legal Mirror 96
THE GUARDIANSHIP CONUNDRUM
Choudhary *& Runu Sharma**
Introduction
“The future destiny of the child is always the work of the mother”
- Napoleon
“A nation’s children represent a nation’s future. How society treats its

children is a good reflection of the overall health and stability of the
society.”
- David Owen
Guardianship refers to a bundle of rights and powers that an adult has in

relation to the person and property of a minor. The law governing the
guardianship of the child has always been a controversial concept.
The Guardianship and Wards Act, 1890, a principal, secular law

governing the custody and guardianship in India was enacted more than
hundred years back. At the time of its enactment, the women in India had
scarcely any right; she had to withstand numerous socio-legal degradation
and several other exhibitions of dominance and false superiority of a man.
Although during the appointment of a guardian, the court kept in view the
welfare and the interest of the child, but at the same time buttressed and
emphasised the parental authority of the father in the matter of the
appointment of the guardian. For a long time, the Hindu Minority and
Guardianship Act 1956, an act addendum to the Guardians and Wards Act
of 1890, was construed in such a way as to give secondary position to
women in matters of guardianship. It not only diminished the mother‘s right
to claim her child but also strengthened the edifice of the patriarchal
structure.
Legal Mirror 97
In the present scenario, the social conditions dictate that parents must
emphasis on bringing up their children as healthy, useful, educated active
citizens of the society. This purpose can only be fulfilled if in the
appointment of the guardian of a minor, the welfare of the minor is made the
first and paramount consideration and no other consideration, such as the
parental authority of the mother or the father, is considered. It was only in
1991 in the landmark case Gita Hariharan v. Reserve Bank of India33 the
court recognised equal right of women and declared that both parents must
be considered equally as the natural guardian and the word ―after‖ should
not be interpreted as to make mother‘s position secondary.
In the recent case ABC vs. The State (NCT of Delhi)34 the court was
faced with the conundrum that whether it is imperative for an unwed mother
to notify to the putative father of the child whose child she has given birth
to, of her petition for appointment as the guardian of the child. On 6th July
2015, the honourable bench of Justice Vikramajit Sen and Justice Abhay
Manohar Sapre ruled in favour of the unwed mother, thus doing away with
the prosaic requirement of section 11 of the Guardianship and Wards Act,
1980 and directed the guardian court to hear the application afresh without
requiring the notice to be given to the putative father.
The Appeal was directed against the Judgment dated 8.8.2011 delivered
by the High Court of Delhi, which had dismissed the First Appeal of the
Appellant, on her refusal to disclose the name and whereabouts of the father
when directed under Section 11 of the Guardianship and Wards Act 1890,
thereby enabling the Court to issue process to him. In this case an educated,
*Student, ILS law college , pune.

**Student, ILS law college , pune.
33
AIR 1999 SC 1149.
34
(2015) SCC OnLine SC 609.
Legal Mirror 98
employed mother wanted her five year old to be the nominee of her
investments. The paper work stipulated that she either provide the name of
the father or get a guardianship certificate. When she approached the court
for getting a guardianship certificate, she was directed under section 11 of
the Guardianship and Wards Act 1890 to disclose the name and
whereabouts of the father and on her refusal to do the same, her claim was
rejected.
Recommendations of the Law Commission of India and Planning

Commission
The demand of equal rights for women has been resonating in legal
corridors for many decades. The Law Commission of India has
recommended the changes and amendments to the several provisions of
Guardianship and Wards Act, 1890 and Hindu Minority and Guardianship
Act, 1956 in order to eliminate the gender bias that laws have for a long
time unperturbedly upheld.
83rd Law Commission Report35
In its 83rd report, the Law Commission recommended amending Section

17 of Guardianship and Wards Act, 1890. The suggested revision in Section
17 and Section 1936 strives for making the minor‘s welfare the utmost
35
Eighty third report on the Guardianship and Wards Act, 1890 and Hindu Minority and
Guardianship Act, 1956 April 1980.
36
Sec.19. Guardian not to be appointed by the Court in certain cases.—Nothing in this
Chapter shall authorize the Court to appoint or declare a guardian of the property of a minor
whose property is under the superintendence of a Court of Wards or to appoint or declare a
guardian of the person—
(a) of a minor who is married female and whose husband is not, in the opinion of Court,
unfit to be guardian of her person; or
(b) of a minor whose father is living and is not in the opinion of the Court, unfit to be
guardian of the person of the minor; or
(c) of a minor whose property is under the superintendence of a Court of Wards competent
to appoint a guardian of the person of the minor.
Legal Mirror 99
consideration in the appointment of the guardian and to equalise the position

of the mother with that of the father. In Section 19 (b) after the word
―father‖ the word ―or mother‖ should be added. It proposes Section 25 to be
revised -
1) to make welfare of the minor paramount , and

2) to add a provision for consulting the wishes of the minor in certain
cases.
In regard to proceedings under section 25, it recommends that the
welfare of the minor should prevail notwithstanding anything to the contrary
contained in section 19.
133rd Law Commission Report37
The Law Commission of India believes that section 19 (b) of

Guardianship and Wards Act of 1890 is pro male biased and anti-female.
According to section 19(b) of the Guardianship and Wards Act 1890, the
minor whose father is alive and in the Court‘s opinion is not unfit, the
mother cannot be the guardian without his consent. The report also submits
that Section 6(a)38 of Hindu Minority and Guardianship Act is very unfair
and has become obsolete with the changing times, consequently the said
provision needs to be amended so as to constitute both the father and the
mother as being natural guardians ‗jointly and severally‘.
37
One hundred Thirty Third report on Removal of Discrimination against Women in
matters relating to Guardianship and Custody of Minor children and Elaboration of the
Welfare Principle, 1989.
38
Sec. 6. Natural guardians of a Hindu minor.—
The natural guardian of a Hindu minor, in respect of the minor‘s person as well as in
respect of the minor‘s property (excluding his or her undivided interest in joint family
property), are—
(a) in the case of a boy or an unmarried girl—the father, and after him, the mother:
provided that the custody of a minor who has not completed the age of five years shall
ordinarily be with the mother;
Legal Mirror 100
The Law Commission states that no person is entitled to guardianship by

virtue of the provisions of the act, if the court is of the opinion that his or
her guardianship will not be for the welfare of the minor. The commission
also vouches that the mother shall not be denied the custody or the
guardianship of the minor only on the ground that the father is in more
affluent circumstances or that the mother‘s economic circumstances are not
as good as that of the father.
The commission views that in applying the welfare principle, the court
should have due consideration to the fact that the minor needs emotional
support and warmth of the mother who is ordinarily better equipped than the
father to impart such emotional support and warmth which are indispensable
for building up a balanced personality.
The law commission yet again recommended amending Section 19 of

the Hindu Minority and Guardianship Act, 1956.
257th Law Commission Report39
The law commission in its 257th report on ―Reform in Guardianship and

Custody laws in India‖ reviews the current laws dealing with custody and
guardianship namely the Guardian and Wards Act, 1890 and the Hindu
Minority and Guardianship Act 1956. The reasons and objects for which
such modifications and amendments in the existing laws pointed by the
Commission are strengthening of the welfare principle in existing law by
emphasizing its relevance with the matters of decision making in
Guardianship and Child custody, giving equal legal status to mother and
father in the matters relating to Guardianship and Child custody, for helping
the decision makers, providing them with the detailed guidelines. The
commission also noted that even after the Supreme Court judgement in Gita
39
Report no. 257 Reforms in Guardianship and Custody Laws in India, May 2015.
Legal Mirror 101
Hariharan V. Reserve Bank of India, the mother can become a natural

guardian during the lifetime of the father only in exceptional circumstances.
The Planning Commission Report40
Understanding the need of the hour and the social condition, the
Planning Commission recommended that all laws need to be revived to
make the mother an equal guardian of her children and to recognise that
since it is the mother who primarily looks after the children, she should be
listed as the first guardian. Furthermore, it suggested that all relevant rules
and regulations be reconsidered so that a mother‘s signature as a guardian of
her child can be accepted in offices and other institutions. If this is
implemented then it means a single mother could sign on official
documents- be it passport or school admission form etc.
One common thread that is to be noted in all the above recommendations is

that the commissions don‘t strive for the greater and absolute rights for the
mother, but it intends to place the women at equal footing with the father.
Background and the Judgement
The appellant, follower of Christian faith was an unwed mother who

was well-educated, gainfully employed and financially secured. In 2010, she
had given birth to a male child and raised him without any assistance from
or participation of his putative father. With a view to make her son her
nominee in all her savings and other insurance policies, she filed an
application with the local authority for guardianship of the child. She was
informed that she must either declare the name of the father or get a
guardianship/adoption certificate from the Court.
40
Twelfth Five Year Plan 2012-17 Planning Commission report, Government of India.
Legal Mirror 102
She thereupon filed an application under Section 741 of the Guardians

and Wards Act, 1890 before the Guardian Court for declaring her the sole
guardian of her son. Section 1142 of the Act requires a notice to be sent to
the parents of the child before a guardian is appointed. Though she
published a notice in a daily local, she remained averse to notifying the
father‘s name. However, she filed an affidavit stating that if in future, the
father raises any objection; the guardianship may be revoked or altered as
the situation may require. The Guardian Court directed her to reveal the
name and particulars of the father and on her refusal to do so, dismissed her
guardianship application on 19.4.2011.
41
Sec.7. Power of the court to make order as to guardianship
(1) Where the court is satisfied that it is for the welfare of a minor that an order should be
made-
(a) Appointing a guardian of his person or property, or both, or
(b) Declaring a person to be such a guardian, the court may make an order accordingly.
(2) An order under this section shall imply the removal of any guardian who has not been
appointed by will or other instrument or appointed or declared by the court.
(3) Where a guardian has been appointed by will or other instrument or appointed or
declared by the court, an order under this section appointing or declaring another person to
be guardian in his stead shall not be made until the powers of the guardian appointed or
declared as aforesaid have ceased under the provisions of this Act.
42
Sec.11. Procedure on admission of application
(1) If the Court is satisfied that there is ground for proceeding on the application, it shall fix
a day for the hearing thereof, and cause notice of the application and of the date fixed for
the hearing-
(a) to be served in the manner directed in the Code of Civil Procedure,1882(14 of 1882)11
on-
(i) the parents of the minor if they are residing in 11[any State to which this Act extends;]
(ii) the person, if any, named in the petition or letter as having the custody or possession of
the person or property of the minor;
(iii) the person proposed in the application or letter to be appointed or declared guardian,
unless that person is himself the applicant; and
(iv) any other person to whom, in the opinion of the court special notice of the applicant
should be given; and
(b) to be posted on some conspicuous part of the court-house and of the residence of the
minor, and otherwise published in such manner as the court, subject to any rules made by
the High Court under this Act, thinks fit.
Legal Mirror 103
The Appellant‘s appeal before the High Court was dismissed in limine,
on the reasoning that ―her allegation that she is a single mother could only
be decided after notice is issued to the father and that a natural father could
have an interest in the welfare and custody of his child even if there is no
marriage and that in no case can be decided in the absence of a necessary
party.‖43
The following contentions44 were vehemently raised before the Supreme

Court by the learned senior counsel for the appellant Ms.Indu Malhotra.
Firstly, furnishing the particulars of the father will undoubtedly result in
controversy regarding his paternity. Secondly, the father is already married
and any publication as to declaration of his fathering a child out of wedlock
would have severe repercussions to his present family and will also result in
severe social complications for her and her child. She also argued that
Section 7, explicitly deals with the interest of the minor and supersedes the
right of the father and mother and the interest of the child would be best
served by appointing the Appellant as the guardian. She also contended that
compelling the appellant to disclose the name and particulars of the father
would undeniably violate her fundamental right to privacy.
On behalf of the State it was contended that Section 11 requires a notice

to be given to the ‗parents‘ of a minor before a guardian is appointed; and
that as postulated by Section 19, a guardian cannot be appointed if the father
of the minor is alive and is not, in the opinion of the court, unfit to be the
guardian of the child. The state thus contended that the impugned judgment
is in accordance with the Act and should be upheld. The bench while
disagreeing with the contention of the state said that the interpretation given
43
Supra note 2, para 3.
44
Supra note 2, Para 4.
Legal Mirror 104
to Section 11 by the state could not be accepted as it does not impart

comprehensive significance to Section 7, which is the essence of the Act.
Analysis of the Personal laws in India as given by the court
In Hindu law, as according to Hindu Minority and Guardianship Act

1956, the legal guardian of an illegitimate child is a mother but this
provision is not available to the mother of a different religion.
Mohammedan law also grants the custody of illegitimate children to the
mother and her relations. The priority and preference given to the mother
over the father of the concerned child are also indicated by Section 8 of the
Indian Succession Act, 1925, which applies to Christians in India. It states
that the domicile of origin of an illegitimate child is in the country in which
at the time of his birth his mother is domiciled.
The analysis makes it abundantly clear that guardianship and related

rights of the child born outside wedlock is bestowed on the mother.
Analysis of legal systems across the globe by the court
The court has appreciated the manner in which the same issue has been
dealt with in other statutes spanning different legal systems across the globe
and felt that ―it should assist in a meaningful, dynamic and enduring
interpretation of the law as it exists in India.‖45 The court concluded that the
―welfare of the minor child‖ was more important than the rights of an
―uninvolved father‖.
In the United Kingdom, according to Section 2(2) the Children Act

1989, parental custody of a child born of unwed parents is with the mother
in all cases, and additionally with the father provided he has attained
responsibility in accordance with the provisions of the Act. In the U.S.A.,
45
Legal Mirror 105
predominantly the mother has full legal and physical custody from the time
the child is born. In Ireland, Section 6(4) of the Guardianship of Infants Act,
1964 says - ―The mother of an illegitimate infant shall be guardian of the
infant.‖
Article 176 of the Family Code of the Philippines explicitly provides

that ―illegitimate children shall use the surname and shall be under the
parental authority of their mother. In 2004, the Supreme Court of the
Philippines in Joey D. Briones vs. Maricel P. Miguel et al 46 held that an
illegitimate child is under the sole parental authority of the mother.
The conspectus revealed the prevalent position that it is the unwed

mother who possess primary custodial and guardianship rights with regards
to her children and the biological father is not conferred equal status merely
by virtue of having fathered the child.
Interpretation of Section 11
The centre of the litigation was the section 11 of the Guardianship and
Wards Act, which is essentially a procedural provision. After filling of the
guardianship application, Section 11 of the Act requires a notice to be sent
to the parents of the child. Section 19 states that a mother cannot be the sole
guardian if the father is alive and fit. As deciphered by the court from the
language of section 7, the interest of the child is the only relevant factor for
appointing of a guardian. The court while recognizing that ―father‘s right to
be involved in his child‘s life may be taken away if section 11 is interpreted
in such a way that he is not given notice, at the same time went on to say
that given the father‘s lack of involvement in child‘s life, prioritizing his
right over that of the mother or child would be an exercise in futility.‖47
46
Joey D. Briones vs. Maricel P. Miguel et al, G.R. No. 156343.
47
Legal Mirror 106
Given the circumstances of the case the court saw no reason as to how the
welfare of the child would be undermined if the appellant is not compelled
to disclose the identity of the father or that Court notice is mandatory in the
child‘s interest. Quite the opposite, the court felt that this may well protect
the child from social stigma and unwanted controversy it involves.
While interpreting section 11, the court explained that it is applicable

only in the cases where the guardianship of a child is sought by a third
party. It will not be attracted in a case where one of the parents petitions the
court for appointment as guardian of her child. Given that the term ―Parent‖
in section 11 is not defined in the Act; in the case of an illegitimate child the
court interpreted it to mean sole caregiver of the child. That is, this
interpretation precludes the father from the definition of parent where
mother is the only caregiver of the child.
The court reiterated that even in the face of the express terms of the
statute, the Supreme Court in Laxmi Kant Pandey v. Union of India48 had
directed that notice should not be sent to the parents, as that was likely to
jeopardize the future and interest of the child who was being adopted.
Hence, the court took into account the sole factor for consideration, i.e. the
welfare of the minor child.
Thus, the Supreme Court directed the Guardian Court to recall the dismissal
order and consider the Appellant‘s application for guardianship
expeditiously.
The Uniform civil code
The courts have once again reiterated the need of uniform civil code in
India and stressed how ―although our directive principles envision the
48
AIR 1992 SC 118.
Legal Mirror 107
existence a uniform civil code it remains an unaddressed constitutional

expectation‖49. The want of a UCC is furthermore necessitated given the
fact that with respect to guardianship right an unwed Christian mothers and
their Hindu counterpart are not at the same footing. Hindu women are the
natural guardian of their illegitimate children by virtue of their maternity
alone, without the requirement of notice to the putative father. It is one of
the circumstances where the Indian laws have remained contradictory thus
pressing the requirement to amend many of these laws.
But one must bear in mind that court‘s emphasis on uniform civil code is
nothing more than an obiter dicta. Thus expecting uniform civil code any
sooner is nothing but a far-fetched dream.
Stigma no more
The ruling is a triumph for women in India who have fought long for
equal rights in the matter of guardianship. Needless to say women will be
benefitted from this judgement especially in the cases of gang rape victims
and sex workers, where determining parentage is immensely difficult, since
such women are basically the sole guardians of their children, it makes
sense that they are legally designated so as well.
The court pointed out that owing to curial fiat, ―it is no longer required
to state the name of the father in applications for admission of children to
school, as well as for obtaining a passport for a minor child. However, in
both these cases, it may still remain necessary to furnish a Birth
Certificate.‖50 Observing that the child had no birth certificate failing the
ability of his mother to disclose the father‘s name, the bench clarified that
the issuance of a Birth Certificate would not be a logical corollary to the
49
50
Legal Mirror 108
appellant succeeding in her guardianship petition. Hence, the court passed

an equally substantial decision directing centre and state government to
issue the document with the single parent/unwed mother‘s name on
furnishing an affidavit that the child is born of her womb. The court
emphasise that ―it is the responsibility of the State to ensure that no citizen
suffers any inconvenience or disadvantage merely because the parents fail
or neglect to register the birth.‖51
Child‟s right to know the father
The court has time and again said that the paramount consideration
while interpreting the act is the welfare and the best interest of the child.
Recognising the mother‘s right to privacy, the court has not made her to
disclose the details of the father to the world, simultaneously it has upheld
the child‘s right to know about his/her father.
While citing the ruling in the case of N.D. Tiwari52, who accepted a son
born out of the wedlock following a DNA test, senior counsel Luthra rightly
pointed that the right of the child to know about the father has been
acknowledged as a facet of the fundamental right to life. The court has thus
yet again upheld this right by ensuring that the child‘s right to know the
identity of his parents is not vitiated, compromised or jeopardised.
Hence we can say that even though court has recognised that the unwed
mother does have a right to not disclose the parentage to the world, the said
right does not prevail over the right of the child to know about his roots and
origin. This right has also been recognised in the Convention on the Rights
of the Child, which India has acceded to on 11th November, 1992.
51
52
Rohit shekhar v. Narayan Datt Tiwari AIR2012delhi151.
Legal Mirror 109
Rights of the father
While there are many gains of the ruling the flip side is rife with
potential unwarranted usage of such a freedom. There may be some cases
where the mother chooses to guard the identity of her child, although no
such protection is required, the right of the father consequently
compromised. Hence, some checks and balances are crucial to protect the
rights of fathers too.
It is important to understand that abandoning the child and being

unaware that one has a child are two different situations. While in the
former case the law might be perfect and sound, but in cases where the
father isn‘t even aware about the existence of the child, the father‘s right to
know is severely compromised. Thus, specifically in cases where the child
has not been abandoned, section 11 provided a means for the father to know
about the child and have access to him.
While on the one hand the court has recognized the child‘s right to know
his parentage, on the other it has virtually done away with the father‘s right
to know about his child. It has been recapitulated many a times by the
judiciary that essence of the Guardianship and Wards Act, 1890 is ―best
interest‖ of the child. It is not unreasonable to say that the best interest of
the child would require knowledge of the father.
In the judgement the court has admitted that interpreting section 11 in

such a way, as to not give notice to father will take the father‘s right to be
involved in the child‘s life. But given the facts and circumstances of the
case, i.e. the lack of involvement of the father, the court has prioritized the
rights of mother and child over that of the father. Thus, logical corollary that
flows is that the court recognises that father does have certain rights.
Legal Mirror 110
Doing away with the mandatory requirement to give notice to the father
has deprived the chance of a man to enjoy the fatherhood, and the right of
child to seek affection of the father. But a glimmer of hope for father arises
when court specifically make it clear that ―Guardianship or custody orders
do not attain permanence or finality and can be questioned at any time, by
any person genuinely concerned for the minor child, if the child‘s welfare is
in peril.‖53 Therefore, the uninvolved parent is not barred from approaching
the Guardian Court to quash, vary or modify its orders if the best interests of
the child so indicate. Thus the court has enabled the ―uninvolved parent‖ to
approach the guardian court seeking quashing of the order if it has been
obtained stealthily and has clarified that its judgement should not be
―misinterpreted‖ as a seal of approval for attempts by any one of the spouses
in the wedlock to unilaterally seek custody of the child behind the back of
the other spouse.
In paragraph 18 of the judgement, the court notes that ―We are mindful
of the fact that we are presently not confronted with a custody conflict and,
therefore, there is no reason whatsoever to even contemplate the
competence or otherwise of the Appellant as custodian of the interests and
welfare of her child‖ in other words the court makes it amply clear that the
case in hand was not about the eligibility of the unwed mother to be
bestowed guardianship rights. Moreover, in paragraph 16, the court notes
that ―the woman is open to a legal challenge if her son‘s father had any
objections to her getting guardianship and custody rights.‖ Basically, the
essence of the entire case was only about notifying the child‘s father before
the hearing of the guardianship application. This is made adequately clear
by the last paragraph of the judgement wherein the court directed the
guardian court to recall the dismissal order and thereafter consider the
53
Legal Mirror 111
Appellant‘s application for guardianship afresh without requiring notice to

be given to the putative father of the child.
So, it is only a matter of conjecture as of now whether the application

will be accepted by the court on grounds of her being an unwed mother.
Conclusion
It can only be hoped that the progressive stand taken by the Supreme
Court will put an end to some of the discrimination that unwed mothers
have been facing for decades, but it surely will lessen the legal hurdles that
have plagued their lives. As aptly said by author and activist Gita Hariharan
―laws are never enough, these have to be disseminated, and put into
practice across society.‖54 It is greatly appreciated how in this legal friction
the court did compromise with child‘s right to know the father and protected
it by donning the mantle of parens patriae.
The personal laws in India have wide discrepancies and as rightly

pointed out by the court; it calls for a uniform civil code which will go a
long way in solving problems faced by the women in India. On the closing
note, It‘s important to bear in mind that the judgement is specific to the
circumstances of the particular case and if its application is arbitrarily
generalised it would hamper the intent of the court.
54
Apurva Vishwanath, Unwed mother can be made guardian of child without father‘s
consent:SC' http://www.livemint.com/Politics/BFVJbdzcYznrNBixjlzVjK/Unwed-mother-
can-be-made-guardian-of-child-without-fathers.html
Legal Mirror 112
GANDHI’S PHILOSOPHY/JURISPRUDENCE
APPLICABILITY IN DEVELOPMENT OF LAW
Jatin Chawla*
Introduction:-
Mohandas Karamchand Gandhi (1869 - 1948) most reverently known as

Mahatma Gandhi was born in Gujarat. He was called by the people
‗Mahatma‘ which means great soul. The people also called him ‗Bapu‘ the
father. Gandhi belonged to the business community of Gujarat. He studied
law in England.1 Gandhi became famous by fighting for the civil rights of
Muslim and Hindu Indians in South Africa, using the new techniques of
non-violent civil disobedience that he developed.2
Jurisprudence is the science of law. It is a science which defines legal
concepts and classifies them in accordance with their observed affinities.
Mahatma Gandhi cannot be said to have contributed to the jurisprudential
thought of the country in its limited sense. But he has evolved a philosophy
of life and as law includes life his philosophy necessarily has powerful
impact on law, both substantial and procedural.3 Gandhi‘s life and thought
captured the imaginations of millions of people around the world. His
influence on civil disobedience campaigns and many social movements is
well known. He is best known for his application of non-violence to
political and social conflict, particularly in the context of oppressed people
resisting the will of an oppressor. Gandhi has functioned as an intellectual
*BB.A LL.B(hons), 4rd year, Raffles University

1
Not Only Mahatma Gandhi, available at http://adaniel.tripod.com/mahatma.htm (last
visited Nov. 24, 2015).
2
Mahatma Gandhi, THE GODLIGHT available at http://thegodlight.org/mahatmagandhi (last
3
K. SUBBA RAO, MAHATMA GANDHI and JURISPRUDENCE, available at
http://yabaluri.org/TRIVENI/CDWEB/mahatmagandhiandjurisprudenceoct69.htm (last
Legal Mirror 113
ally for many alternative critical thinkers over the past century. 4 Outside of
India some of the work of, for example, Martin Luther King Jr. can also be
viewed in this light. Understanding the universe to be an organic whole, the
philosophy exists on several planes―the spiritual or religious, moral,
political, economic, social, individual and collective. The twin cardinal
principles of Gandhi's thought are truth and nonviolence.
For Gandhi, truth is the relative truth of truthfulness in word and deed, and
the absolute truth―the Ultimate Reality. This ultimate truth is God and
morality―the moral laws and code―its basis. Ahimsa, far from meaning
mere peacefulness or the absence of overt violence, is understood by Gandhi
to denote active love―the pole opposite of violence, or ―Himsa‖, in every
sense.5 Gandhi's thought the emphasis is on idealism, but on practical
idealism. It is rooted in the highest religious idealism, but is thoroughly
practical. One label (and almost the only one) Gandhi was happy to have
pinned on him was that of ―practical idealist‖. Gandhian philosophy
embodies numerous Western influences to which Gandhi was exposed, but
being rooted in ancient Indian culture and harnessing eternal and universal
moral and religious principles, there is much in it that is not at all new.6
Gandhi‘s impact on jurisprudence is negligible. This is intriguing, given that
Gandhi spent most of his adult life publicly challenging existing laws and
filled hundreds of pages of commentary on people‘s relationship to law. He
inquisitively examined people‘s duties to both obey and resist laws. Yet,
strangely, jurisprudential scholars overwhelmingly are silent on the question
of how to engage Gandhi. He remains more of an admired figurehead of
4
Nehal A. Patel and Lauren Vella, A Mindful Environmental Jurisprudence? Speculations
on the Application of Gandhi‘s Thought to MCWC v. Nestlé, 30 Pace Envtl. L. Rev. 1116
(2013) Available at: http://digitalcommons.pace.edu/pelr/vol30/iss3/5 (last visited Nov. 21,
2015).
5
Stephen Murphy, Brief Outline of Gandhi's Philosophy, available at
http://www.mkgandhi.org/articles/murphy.htm (last visited Nov. 21, 2015.)
6
Id.
Legal Mirror 114
peace and non-violence rather than a serious source of legal theory in the
mainstream of modern jurisprudence.
Gandhi‟s Philosophy/Jurisprudence:-
The greatest and the most unique contribution of India to the contemporary
world is the message of non-violence and peace, especially the technique of
Satyagraha or non-violent direct action, formulated and practiced by
Gandhi.7
Gandhi saw violence pejoratively and also identified two forms of violence;
Passive and Physical. Gandhi teaches that the one who possess nonviolence
is blessed. Blessed is the man who can perceive the law of ahimsa
(nonviolence) in the midst of the raging fire of hinsa all around him. Gandhi
objects to violence because it perpetuates hatred. When it appears to do
‗good‘, the good is only temporary and cannot do any good in the long run.
A true nonviolence activist accepts violence on himself without inflicting it
on another. For Gandhi, perpetrators of violence (whom he referred to as
criminals), are products of social disintegration. Gandhi feels that violence
is not a natural tendency of humans. It is a learned experience. There is need
for a perfect weapon to combat violence and this is nonviolence. Gandhi
understood nonviolence from its Sanskrit root ―Ahimsa‖. Ahimsa is just
translated to mean nonviolence in English, but it implies more than just
avoidance of physical violence. Ahimsa implies total nonviolence, no
physical violence, and no passive violence. Gandhi translates Ahimsa as
love. Gandhi‘s nonviolence is the search for truth. Truth is the most
fundamental aspect in Gandhi‘s Philosophy of nonviolence. His whole life
has been ―experiments of truth‖. Speaking primarily with regards to
nonviolence as a libratory philosophy in this passage, Gandhi emphasizes
7
JAI S. SINGH, GANDHIAN JURISPRUDENCE of NON-VIOLENCE and GLOBAL
PEACE, available at http://www.iipa.org.in/New%20Folder/8-Jai.pdf (last visited Nov. 24,
2015).
Legal Mirror 115
the power of nonviolence to emancipate spiritually and physically. It is a

science and of its own can lead one to pure democracy.8 The philosophy of
non-violence is aimed at reconstructing, remoulding and reshaping human
nature.9
Satyagraha was the Centre of Gandhi‘s Contribution to the Jurispudence of

Nonviolence. Satyagraha literally means devotion to truth, remaining firm
on the truth and resisting untruth actively but nonviolently. Since the only
way for Gandhi getting to the truth is by nonviolence (love), it follows that
Satyagraha implies an unwavering search for the truth using nonviolence.
Satyagraha is a moral weapon and the stress is on soul force over physical
force. It aims at winning the enemy through love and patient suffering.
Gandhi explained in a letter to Lord Hunter that Satyagraha is a movement
based entirely upon truth. It replaces every form of violence, direct and
indirect, veiled and unveiled and whether in thought, word or deed.
Satyagraha is for the strong in spirit. A doubter or a timid person cannot do
it. Satyagraha teaches the art of living well as well as dying. It is love and
unshakeable firmness that comes from it. Its training is meant for all,
irrespective of age and sex. The most important training is mental not
physical.10
Satyagraha, as a method of non-violent direct action, is the most cultured

way of bringing desirable social change. Since Satyagraha is the most
powerful weapon, it should not be used unless all other remedies such as
8
Gandhi's Philosophy of Nonviolence, MKGANDHI available at
http://www.mkgandhi.org/africaneedsgandhi/gandhi's_philosophy_of_nonviolence.htm
(last visited Nov. 25, 2015).
9
2015).
10
Gandhi's Philosophy of Nonviolence, MKGANDHI available at
http://www.mkgandhi.org/africaneedsgandhi/gandhi's_philosophy_of_nonviolence.htm
Legal Mirror 116
negotiation, arbitration, conciliation, etc., must have been exhausted.11 In

Satyagraha there is no place for frauds or untruths, no fear, complete trust in
the goodness of the opponent, complete open handedness, and no secrecy,
and a readiness to compromise.
Further Gandhi has given taught regarding Environment. In the domain of

environmental thought, Gandhi did not focus purely on parts of the physical
environment such as wildlife or natural resources. Instead, Gandhi
understood environmental problems through an emphasis on social
relations.12
According to Gandhi the industrialization and urbanization have created
multiple problems and miseries for the modern man. Gandhi regarded
industrialization detrimental to growth of a non-violent and eco-friendly
society. In his ideal society, as in the classical anarchist model, there would
be complete decentralization of political and economic system and self-
sufficient, barter type of village economy would be the desired model.
Machinery has, in his judgement; three-essential attributes. First, it can be
duplicated or copied. Secondly, there is no limit to its growth or evolution.
Thirdly, it appears to possess a will or genius of its own that operates as the
inevitable law of displacement of the labor. Once the machine is created and
allowed to operate, it goes more and more out of human control. Ideally,
Gandhi regards all machinery as thoroughly undesirable. Once he
commented: ―Today machinery merely helps a few to ride on the backs of
millions. The impetus behind it all is not philanthropy to save labor but
greed. It is against this constitution of things that I am fighting with all my
11
2015).
12
Nehal A. Patel and Lauren Vella, A Mindful Environmental Jurisprudence? Speculations
on the Application of Gandhi‘s Thought to MCWC v. Nestlé, 30 Pace Envtl. L. Rev. 1116
(2013) Available at: http://digitalcommons.pace.edu/pelr/vol30/iss3/5 (last visited Nov. 21,
2015).
Legal Mirror 117
might‖. Gandhi felt that the present industrialization and use of large scale
machinery was not very healthy and resulted in serious economic
dislocation. Dead machinery must not be pitted against millions of living
machines. As Gandhi once commented: ―Mechanization is good when the
hands are too few for the work intended to be accomplished. It is an evil
when there are more hands than required for the work, as in India‖.13 Large
scale industrialization perpetuates war and many other evils and all the
naturalness come to an end. Gandhi rejected the modern industrial-urban
concept of development for its anti-democratic, anti-humanitarian, and
exploitative features. In its place Gandhi offers the ideal of the economically
self-sufficient, politically self-governing and culturally non-violent village
republic as the guarantee of genuine democracy, true humanism, civilizing
non-violence and lasting peace. Thus Gandhi was in favor of technology
and development of cottage and small scale industries at village level
because these industries are localized, energy saver, and job intensive and
less polluting. According to him cities should as store and forwarding
houses and no production in cities to prevent congestion and pollution.14
An incidents in 1893 in South Africa changed the course history of civil

rights movement for human rights in the world that is the eviction of
Mohandas Gandhi from the train at Petermaritzburg in South Africa for
having dared to travel in a first-class compartment. Due to this incident
Gandhi has initiative for Human Rights. Gandhian initiative for human
rights and justice stands out for the fresh set of strategies and attitudes
which Gandhi brought in. Many could not understand what he meant
when he asserted: ―A clear victory of satyagraha is impossible so long as
there is ill will. But those who believe themselves every morning in it
13
Gandhi M.K.,Quoted by Mathurs (Ed.), ETMG, pp 476.
14
Ashok Bhise, Agenda 21 Section IV and Gandhian Philosophy – a
Comparison, MKGANDHI available at http://www.mkgandhi.org/articles/ashokb.htm (last
Legal Mirror 118
have to make the following resolve for the day: I shall fear anyone on
earth. I shall fear God only: I shall not bear ill will towards anyone on
earth. I shall fear no injustice from anyone. I shall conquer untruth by
truth and in resisting untruth I shall put up with all suffering.‖1 Gandhi
brought in a new era of nonviolent defense based on the ability of each
human being to free himself from fear. He believed that fearlessness
becomes a major pillar on which to build together with love and the
capacity to resist when necessary. It is interesting t see that Gandhi
conceives fearlessness as a condition for love. There was no bigger
concept against humanity and denial of human rights to fellow citizens
than treating them as sub-human beings for whatever reasons. Denial of
reality itself was an act of violation of what constitutes the core and the
mirror of universal life. Gandhi was never tired repeating, ―if the villages
perish, India will perish‖.15
According to Gandhiji, work is not only an economic activity. It‘s necessary

for spiritual growth. Bapu wanted that India should have its own economic
policy. It should not follow any foreign countries policy. According to
Gandhi, capitalist and rich should consider themselves as trusty of society
and make use of their wealth for the benefits of society which is known as
trusteeship. Gandhiji wanted that co-operative system should be developed
in India, in agriculture and many other fields so that everyone economic
welfare can be achieved.16
Gandhiji always said that India can‘t be developed unless we develop the
village of India, there has to be grass root development. In his opinion and
which very correct that the process of development in India should being
from village level. Gandhiji always profounded that agriculture should be
15
N. Radhakrishnan, The Gandhian Initiatives for Human Rights, MKGANDHI available
athttp://www.mkgandhi.org/articles/radhakrishnan3.htm (last visited Nov. 28, 2015).
16
Sharon Coutinho, Gandhiji‘s Views on Economics,MKGANDHI available at
http://www.mkgandhi.org/articles/gview_eco.htm (last visited Nov. 29, 2015).
Legal Mirror 119
supported by some subsidiary occupation like bee keeping, animal

husbandry, khadi, paper making, mud utensils etc. He wanted that every
home there should be charkha which will enable the use of local productive
resources and man power able in villages.17
Application of Gandhi‟s Philosophy/Jurisprudence in present time:-
Same general principles of Satyagraha apply in various conflict situations

for their resolution. However, each category of conflict has characteristics
specific to it and hence may also require an approach more specific to it.
Salient features of application of Satyagraha in different categories of
conflicts. The legal system is the primary institutional solution to conflict
resolution among individuals or groups. It generally precludes the
Gandhian dialectic from coming into play because it is concerned with
'sanctions' and not with reconciliation and compromise, least of all
conversion. One of the parties in conflict risks total loss and usually both
incur costs. Unlike Gandhi's Satyagraha which, based on the Indian
tradition, stresses dialogue, mediation and compromise and de-emphasizes
overt clashes, victories and defeats, the Western approach stresses 'legal'
resolution of conflicts involving articulation and confrontation of
alternatives/opposites and victory of one over the other. The parties
generally interact through professional lawyers. Gandhi, himself a lawyer,
saw lawyers as mediators rather than mere conductors of legal
proceedings. Talking of his first case which took him to South Africa and
which he helped resolve out-of-court through an independent arbitrator
and a time schedule for settling the agreed upon debts, he said: ―I became
disgusted with the profession. As lawyers, the counsels on both sides were
bound to rake up points of law in support of their clients. The winning
party never recovers all the costs. I felt it was my duty to befriend both
17
Id.
Legal Mirror 120
parties and bring them together.‖ He settled down into his legal practice in
his singular way: ―I realized that the true function of a lawyer was to unite
parties riven asunder. The lesson was so indelibly burnt into me that a
large part of my time during the twenty years of my practice as a lawyer
was occupied in bringing about private compromises of hundreds of cases.
I lost nothing thereby, certainly not my soul.‖ Courts are the means of
solving those conflicts that nevertheless still occur. Even so, where courts
can be avoided they should be, because satisfaction of both parties cannot
come from defeat of one of them. Only the antagonists themselves can be
parties to the dialectic out of which Truth and justice emerge. As Gandhi
said: ―Truly, men became more unmanly and cowardly when they resorted
to the court of law. Surely, the decision of a third party is not always right.
We, in our simplicity, imagine that a stranger, by taking our money, gives
us justice.‖18
According to this jurisprudence of Gandhi a law is made that is

ARBITRATION AND CONCILIATION ACT, 1996 with the object of
settlement of dispute outside the court that is win-win situation for both
party. A law is made for settlement of dispute through arbitration,
mediation etc. Further Section 8919 of Civil procedure code provides for
the settlement of dispute outside the court.
18
Dr. Y. P. Anand, Conflict Resolution: The Gandhian Approach, MKGANDHI available at
http://www.mkgandhi.org/articles/conflict_resolution.htm (last visited Nov. 30, 2015).
19
Sec 89. Settlement of disputes outside the Court.:- (1) Where it appears to the court
that there exist elements of a settlement which may be acceptable to the parties, the court
shall formulate the terms of settlement and give them to the parties for their observations
and after receiving the observation of the parties, the court may reformulate the terms of a
possible settlement and refer the same for-(a) arbitration;(b) conciliation;(c) judicial
settlement including settlement through Lok Adalat; or (d) mediation.; (2) Where a dispute
had been referred- (a) for arbitration or conciliation, the provisions of the Arbitration and
Conciliation Act, 1996 shall apply as if the proceedings for arbitration or conciliation were
referred for settlement under the provisions of that Act.; (b) to Lok Adalat, the court shall
refer the same to the Lok Adalat in accordance with the provisions of sub-section (1) of
section 20 of the Legal Services Authority Act, 1987 and all other provisions of that Act
shall apply in respect of the dispute so referred to the Lok Adalat; (c) for judicial
settlement, the court shall refer the same to a suitable institution or person and such
Legal Mirror 121
Gandhi did not like people to remain as mere silent spectators in a helpless
manner. He arouses their indomitable moral will and inherent potentialities
to fight against the supposed wrong or injustice in a non-violent manner.
He envisaged a casteless, classless and egalitarian society against the
existing acquisitive and exploitative society.20
According to this jurisprudence of Gandhi a law is provided for the

uplifment of backward society i.e. who are not able to grow in past and
law is made to remove all untouchability. Under to Constitution of various
Article were provided for this. They are: - Art. 1521 provides for
Prohibition of discrimination on ground of religion, race, caste, sex or
place of birth. Art. 1622 provides for Equality of opportunity in matters of
institution or person shall be deemed to be a Lok Adalat and all the provisions of the Legal
Services Authority Act, 1987 shall apply as if the dispute were referred to a Lok Adalat
under the provisions of that Act; (d) for mediation, the court shall effect a compromise
between the parties and shall follow such procedure as may be prescribed.
20
Dr. Jakku Srinivasa Rao, M.K.GANDHI‘S EDUCATIONAL PHILOSOPHY and SOCIAL
VALUES and ITS RELEVANCE to the CONTEMPORARY SOCIETY, ABHINAVJOURNAL
available at http://www.abhinavjournal.com/images/Arts_&_Education/May13/2.pdf (last
visited Nov 30, 2015).
21
Art. 15. Prohibition of discrimination on grounds of religion, race, caste, sex or
place of birth.—(1) The State shall not discriminate against any citizen on grounds only of
religion, race, caste, sex, place of birth or any of them. (2) No citizen shall, on grounds only
of religion, race, caste, sex, place of birth or any of them, be subject to any disability,
liability, restriction or condition with regard to— (a) access to shops, public restaurants,
hotels and places of public entertainment; or (b) the use of wells, tanks, bathing ghats, roads
and places of public resort maintained wholly or partly out of State funds or dedicated to
the use of the general public. (3) Nothing in this article shall prevent the State from making
any special provision for women and children. (4) Nothing in this article or in clause (2) of
article 29 shall prevent the State from making any special provision for the advancement of
any socially and educationally backward classes of citizens or for the Scheduled Castes and
the Scheduled Tribes. (5) Nothing in this article or in sub-clause (g) of clause (1) of article
19 shall prevent the State from making any special provision, by law, for the advancement
of any socially and educationally backward classes of citizens or for the Scheduled Castes
or the Scheduled Tribes in so far as such special provisions relate to their admission to
educational institutions including private educational institutions, whether aided or unaided
by the State, other than the minority educational institutions referred to in clause (1) of
article 30.
22
Art. 16. Equality of opportunity in matters of public employment.—(1) There shall
be equality of opportunity for all citizens in matters relating to employment or appointment
to any office under the State. (2) No citizen shall, on grounds only of religion, race, caste,
sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated
against in respect of, any employment or office under the State. (3) Nothing in this article
Legal Mirror 122
public employment. Art. 1723 provides for Abolition of Untouchability &

Art. 1824 provides for Abolition of Titles.
Further Directive Principle of State Policy provided under the Part IV of

Constitution can be grouped into three categories; socialistic, Gandhian,
and liberal intellectualistic.
DPSP aiming to implement Gandhian Principles are:-

1) Article 4025- the state shall organize village panchayats as units of
self-government.
shall prevent Parliament from making any law prescribing, in regard to a class or classes of
employment or appointment to an office under the Government of, or any local or other
authority within, a State or Union territory, any requirement as to residence within that
State or Union territory prior to such employment or appointment. (4) Nothing in this
article shall prevent the State from making any provision for the reservation of
appointments or posts in favour of any backward class of citizens which, in the opinion of
the State, is not adequately represented in the services under the State. (4A) Nothing in this
article shall prevent the State from making any provision for reservation in matters of
promotion, with consequential seniority, to any class or classes of posts in the services
under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the
opinion of the State, are not adequately represented in the services under the State. (4B)
Nothing in this article shall prevent the State from considering any unfilled vacancies of a
year which are reserved for being filled up in that year in accordance with any provision for
reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled
up in any succeeding year or years and such class of vacancies shall not be considered
together with the vacancies of the year in which they are being filled up for determining the
ceiling of fifty per cent. Reservation on total number of vacancies of that year. (5) Nothing
in this article shall affect the operation of any law which provides that the incumbent of an
office in connection with the affairs of any religious or denominational institution or any
member of the governing body thereof shall be a person professing a particular religion or
belonging to a particular denomination.
23
Art. 17. Abolition of Untouchability.—―Untouchability‖ is abolished and its practice in
any form is forbidden. The enforcement of any disability arising out of ―Untouchability‖
shall be an offence punishable in accordance with law.
24
Art. 18. Abolition of titles.—(1) No title, not being a military or academic distinction,
shall be conferred by the State. (2) No citizen of India shall accept any title from any
foreign State. (3) No person who is not a citizen of India shall, while he holds any office of
profit or trust under the State, accept without the consent of the President any title from any
foreign State. (4) No person holding any office of profit or trust under the State shall,
without the consent of the President, accept any present, emolument, or office of any kind
from or under any foreign State.
25
Art. 40. Organisation of village panchayats.—The State shall take steps to organise
village panchayats and endow them with such powers and authority as may be necessary to
enable them to function as units of self-government.
Legal Mirror 123
2) Article 4526- state shall promote with special care the educational
and economic interests of the weaker sections of the people;
3) Article 4327- State shall try to promote cottage industries;
4) Article 4828- State shall preserve and improve the breeds and
prohibit the slaughter of cows calves and other draught cattle;
5) Article 4729- State shall try to improve public health and the
prohibition of intoxicating drinks and drugs.30
Further Agenda 21 of United nation was made on the basis of Gandhi

Jurisprudence of Environment. Agenda 21 is a programed run by the United
Nations (UN) related to sustainable development. It is a comprehensive
blueprint of action to be taken globally, nationally and locally by
organizations of the UN, governments, and major groups in every area in
which humans directly affect the environment.31
26
Art 45. Provision for early childhood care and education to children below the age
of six years.—The State shall endeavour to provide early childhood care and education for
all children until they complete the age of six years.
27
Art. 43. Living wage, etc., for workers.—The State shall endeavour to secure, by
suitable legislation or economic organisation or in any other way, to all workers,
agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a
decent standard of life and full enjoyment of leisure and social and cultural opportunities
and, in particular, the State shall endeavour to promote cottage industries on an individual
or co-operative basis in rural areas.
28
Art. 48. Organisation of agriculture and animal husbandry.—The State shall
endeavour to organise agriculture and animal husbandry on modern and scientific lines and
shall, in particular, take steps for preserving and improving the breeds, and prohibiting the
slaughter, of cows and calves and other milch and draught cattle.
29
Art. 47. Duty of the State to raise the level of nutrition and the standard of living
and to improve public health.—The State shall regard the raising of the level of nutrition
and the standard of living of its people and the improvement of public health as among its
primary duties and, in particular, the State shall endeavour to bring about prohibition of the
consumption except for medicinal purposes of intoxicating drinks and of drugs which are
injurious to health.
30
Shivam Anand, DIRECTIVE PRINIPLE of STATE POLICY, ACADEMIA.EDU available at
https://www.academia.edu/7746544/Directive_Principle_of_State_policy (last visited May
1, 2015).
31
Ashok Bhise, Agenda 21 Section IV and Gandhian Philosophy - a
Comparison, MKGANDHI available at http://www.mkgandhi.org/articles/ashokb.htm (last
Legal Mirror 124
There are 40 chapters in the Agenda 21, divided into four main sections.
Section I: Social and Economic Dimensions: It includes combating poverty,
changing consumption patterns, population and demographic dynamics,
promoting health, promoting sustainable settlement patterns, integrating
environment and development into decision making.
Section II: Conservation and Management of Resources for Development
Includes atmospheric protection, combating deforestation, protecting fragile
environments, conservation of biological diversity (biodiversity), and
control of pollution.
Section III: Strengthening the Role of Major Groups: It includes the roles
of children, youth, women, NGOs‘, local authorities, business and workers.
Section IV: Means of Implementation: Implementation includes science,
technology transfer, education, international institutions and mechanisms
and financial mechanisms.
Transfer of Environmentally Sound Technology, Cooperation & Capacity-
Building -Chapter 34 Environmentally sound technologies protect the
environment, are less polluting, use all resources in a more sustainable
manner, recycle more of their wastes and products, and handle residual
wastes in a more acceptable manner than the technologies for which they
were substitutes.
It is striking to note that most of the issues forming integral part of
Agenda 21 are already brought forth by Mahatma Gandhi a century
back when there was absolutely no pollution. All the problems were
envisaged long ago and given probable solution to it.32
The Mahatma Gandhi National Rural Employment Guarantee Act

(MGNREGA) which came into existence on October 2, 2009 has a huge
potential in empowering rural communities by providing employment to
village communities to improve their livelihood. Its activities which have a
32
Id.
Legal Mirror 125
sustained flow of benefits include flood proofing, drought proofing,

reclamation of degraded land, groundwater recharge, etc. This programed
has catalyzed links with Self Help Groups (SHGs) of women in order to
empower the marginalized. Investment should be focused more on
activities providing benefits at the community level so that the poor derive
maximum benefits.33
Recently Govt. of India at central in India has planned to launch a new

rural development scheme. Under the scheme, during 2019-24, MPs will
be able select one village every year for integrated development aimed at
improving the overall quality of rural life. The project also envisages
turning villages into model villages not just through infrastructure
development but gender equality, dignity of women, social justice,
community service, cleanliness, eco-friendliness, peace and harmony. It
also aims to instill the spirit of community service, mutual cooperation,
self-reliance, local self-government and drive transparency and
34
accountability in public life. Whole Policy of govt. as only based on
Gandhi‘s jurisprudence as mentioned above.
Conclusion:-
As we noted above Gandhi has given jurisprudence through his

philosophies. In the development of law gandhi‘s philosophies are
applicable. As we have noted in our Constitution i.e. primary law of the
land provision on based on the philosophies of Gandhi can be seen.
Further his philosophy of settlement of dispute outside the Court is
implemented. Nowadays an alternative dispute resolution is the most
33
Dr. Marina B. Pereira, Inclusive Growth Through Self-Help Groups - a Gandhian
Paradigm of Sustainable Development, MKGANDHI available at
http://www.mkgandhi.org/articles/gandhian-paradigm-of-sustainable-development.html
(last visited May 1, 2015).
34
Shubhendu Parth, Modi Govt to Launch New Rural Development
Scheme, GOVERNANCENOW, Oct. 10, 2014 at available at
http://www.governancenow.com/news/regular-story/modi-govt-launch-new-rural-
development-scheme (last visited May 1, 2015).
Legal Mirror 126
useful law as most of the business world disputes are getting solved
through this only. Also internationally gandhi‘s jurisprudence is applicable
as Agenda 21 of United Nation is based on Gandhij‘s environment
protection philosophy. Not only in past but in present also his philosophy
getting applied as Government is going to start a scheme of rural
development which was purely based on the view of Gandhi on
development of villages. Therefore although Gandhi is not recognized as
Scholar in the branch of Jurisprudence but law is much inspired by his
philosophies.
Legal Mirror 127
JUVINILE IN CONFLICT WITH LAW

GRAVITY OF CRIME VS. MATURITY
Shailly Pal Sadana1*
"In our country children are considered as a gift from the heaven and if the
child is a boy then nothing could be more soothing for the family and from
the very beginning children are exempted from severe punishment for any
wrong committed on their part irrespective of the gravity of the act".
Introduction:
Children are greatest national assets and resources. They are future
of any country and they should be given opportunity to grow up and become
robust citizens, physically fit, mentally alert and morally healthy. Endowed
with skills and activation needed by the society. Children are expected to be
obedient, respectful and imbibe virtues and good quality in them. Due to
various reasons children do not follow settled social and legal dictum.
They constitute the most vulnerable section of society and are

considered as supremely important assets of our nation. Protection and
development programmes for the specially disadvantaged children should
ensure that every child has equal opportunities of optimum personal growth.
Socio-economic circumstances of a family often result in family stress,
disintegration and child destitution. Special programmes have been evolved
as a response to the needs of such families. The services supplement and
substitute parental care and supervision to promote the overall well-being of
the vulnerable children by preventing them from abuse and exploitation and
providing them care and shelter. The practice of child protection has
undergone a significant change. The traditional approach of custodial care in
1
Professor at K.C.L Institute of Law, Affiliated to GNDU
Legal Mirror 128
an institution is being replaced as the traditional approach of long time

institutional care resulted in child being separated from family and
environment for long time.
In recent years, it has become very clear that juvenile delinquency is

most important aspect of the subject matter of criminology. Delinquent
behavior has assumed serious forms among the juveniles, which is a sign of
sick society. The disorder and destruction due to deviant behavior, a
worldwide phenomenon is assuming alarming proposition in social
organizations and is awakening call to those who are either in its group or
are likely to get strict. Young offenders above a certain age who commit
violent crimes should be prosecuted as adults.
The juvenile justice system is a foundation in society that is granted

certain powers and responsibilities. It faces several different tasks, among
the most important is maintaining order and preserving constitutional rights.
When a juvenile is arrested and charged with committing a crime there are
many different factors that will come in to play during the course of his
arrest, trial, conviction, sentencing, and rehabilitation process.
The act‟s overview:
The Juvenile Justice (Care and Protection of Children) Act, 2000 is

the primary legal framework for juvenile justice in India. It provides a
special framework for the protection, treatment and rehabilitation of the
juveniles. It was enacted by our parliament in order to provide adjudication
on matters relating to disposition of delinquent juveniles under a uniform
system of juvenile justice. The act presumes children to be innocent till
proved guilty. The maximum detention imposed on a juvenile is 3 years
remand to Special Home irrespective of the gravity of offence committed by
him. The act consolidate and amend the law relating to juveniles in conflict
Legal Mirror 129
with law and children in need of care and protection, by providing for
proper care, protection and treatment by catering to their development
needs, and by adopting a child-friendly approach in the adjudication and
disposition of matters in the best interest of children and for their ultimate
rehabilitation through various institutions established under this enactment.
Despite of the rage of the offence, the act takes all initiatives in
keeping the identity of the child or the juvenile a secret and if there is any
disclosure regarding the juvenile, a strict action is taken against the person
who leaked the identity. The act is considered to be an extremely
progressive legislation. However, the implementation is a very serious
concern even till the date. In order to upgrade the Juvenile Justice
Administration System, Government of India launched Integrated Child
Protection Scheme (ICPS) in year 2009-10, still no changes are seen in the
implementation of the act.
Other views:
According the child psychology, a child‘s mind for sexual desires

start at the age of 11 years. It is upon the child how he takes this stage of
adolescence and the hormonal imbalance in his body. Also the
environmental factors attribute to this kind of exposure young minds are
getting these days from the movies showing scandals. Only giving them ―A‖
rating is not enough as after few days only these movies are available
online. Therefore the government has to look deep into the matter and take
necessary steps of increasing the validity of the juvenile law and reducing
the age of juvenile from 18 to 16 considering the current mental setup of the
people.
As my article discuses about the horrendous crimes like rape and

murder, and the sought of punishments to be given to the juveniles
Legal Mirror 130
committing such crimes, I would like to draw your attention to the recent
eye opening DELHI GANG RAPE CASE, 2012. One of the accused was a
minor according to the act, had been ―most brutal‖ of all accused. The
gruesome act of brutalizing her with an iron rod was done none other but by
a juvenile and he has been sentenced only for a period of 3 years.
Research:
In order to write this article, I conducted a small research with a

bunch of people to know about their views in this matter and to my shock, 1
out of 70 had answered that no a child under the age of 18 should be
accused as a child only giving a justification by saying that we don‘t know
the back drop of the child or his mindset, he might be forced to do so, but in
my opinion nobody could be forced to commit rape or murder but still it is
her view and one cannot change it. But the rest of my subjects had a quite
similar views as those of mine: no matter what the age is, if a person is
committing an offence of Rape or Murder, he should be accused as an adult,
unless he is doing it out of self-defense. Most my subjects had a view that if
a person has guts to commit such an offence than why not have same guts to
bear the consequences. Many of my subjects even debated upon the change
of the age of juvenile from 18 to 16 and some even said that the age should
be rather reduced to 14 as the justify their views by saying that according to
the westernizing society, even a person of the age of 14 is full aware of
everything
It is obvious that a child is not sensible enough to know the term

RAPE and if one is committing it, than he certainly is not a child as he
knows the acts involved and the consequences of the same. Committing an
offence like rape or murder, the mental capacity of the person is not as of an
ordinary child, so he should be accused as an adult. Some of the subjects are
Legal Mirror 131
still positive about the new implementations and have a view that now with
the new amendments the forth coming cases will pass judgment according
to the mind of the accused and not on the basis of his age.
Lope Holes in Our Judicial System:
The most shocking was the case that came into my notice during my
research regarding the people taking disadvantage about the laws that are
provided in accordance to protect the women from exploitation. One such
incident that came in my notice is not very popular one but quite a strange
one. A servant placing agency in Delhi placed a young girl in one of the
posh house as a servant for 11 months, and in her last month the girl‘s
family started pressurizing the owners to either give them amount of 5 lakh
or they would file a suit of rape against them. The owners been confident to
not have committed any offence went to the nearby police station to file an
FIR against the girl and the agency. On reaching the police station, they
were apprised of the fact that the police was also involved with the agency
and before filing the family‘s complaint, they filed the girl‘s irrelevant
complaint and sentenced jail to one of the family‘s boy. But soon after he
escaped the jail, they filed another suit against those police officials and the
agency. The police officials got suspended and the case on the agency is still
pending. It is shocking that how the people detriment the privileges given to
them by law for their personal benefits.
The main concern is not whether the offender should be treated as a

child or adult, the main concern is that they held guilty on the basis of the
offence committed. They should not be treated differently merely
considering the age to be an escape factor. And not only the convicted
person, but his family should also be punished for not pouring in the morals
of the society in their offspring. It is obvious that if a person is committing
Legal Mirror 132
such horrendous crime then it means that he is aware of the consequences

and the pain that the victim or victim‘s family is to face, and this is not
going to decrease on the view that the offender was a juvenile. And the
worst lope hole in the juvenile law is that they convict a criminal for
maximum of 3 years, which gives a chance that after being freed from the
jail, the person might commit same or even bigger crime or not that but it is
certainly a bad mental harassment to the victim‘s family.
Data research:
In our country the crimes committed by juveniles constituted 1.2%

of total crimes reported to police in 2012. Juvenile involvement in overall
crimes was static at 1% during 2002 to 2005, increasing marginally to
1.2% in 2008 and in 2011 it had come down to 1.1%. In 2012, police in
India charged 27,936 juveniles for alleged involvement in crimes including
banditry, murder, and rape and rioting. Among those who faced Juvenile
Justice Boards in 2012, two thirds (66.6%) were aged between 16 and 18
years, according to NCRB data. The NCRB figures showed that 30.9% were
aged between 12 and 16 years old and the remainder, (2.5 %,) were aged
between 7 and 12 years.
The validity of the juvenile law has been a hot topic these days.
These juveniles while committing crimes are held with less severity and
tenderness, the law says that a juvenile isn't treated as guilty or charged with
the same sections provided by the law, for the majors, because they don‘t
have an understanding of what they are doing. Similarly the mindset of the
judges while carrying out the proceeding against an adult on the offence of
murder or rape is entirely different from that when he is deciding a case of a
juvenile. So the first initiative is for the people to check their mindsets,
because offence is offence, no matter what the age of the criminal is. In past
Legal Mirror 133
several years it has been noticed that the children between the age of 15-18
are committing more hazardous crimes and still aren‘t treated with same
severity as that of any adult. According to the medical science a normal 14-
15 year old child knows about the moral rights and wrongs. And when
someone, let‘s say 16 year old allegedly rapes a girl, even while listening
that the victim is pleading for mercy, he continues it then we cannot
consider him as a minor because he is fully aware of his act. So he should be
punished accordingly but not merely on the basis of his age and mental
capacity to understand the situation should be considered.
New amendment:
Day after the bill on amendment in Juvenile Justice Act came in

news, congress said that there should be a wider consultation before
implementing it. One of the cabinet minister says, ―There are two side of
this arguments, there is another side of argument that the juveniles need to
be protected. Yes, there are cases where juveniles do commit heinous crimes
but then there is a strong body of opinion which supports that the Juvenile
Justice age should be kept as 16 so therefore there should be a wider
consultation as all points of view should be taken on board before
something of this sought is implemented.‖ The union cabinet has approved
the amendments to the Juvenile Justice bill that purposes treating minors
older than 16 years as adults if charged with serious crimes like rape or
murder, but also mentioned that they will not be sentenced to life or death if
found guilty. The activist has approved the move with a hope that this will
act as a deterrent. Women and child development minister, Maneka Gandhi
reignited to this debate. As the union minister has approved the
amendments, they are waiting for same to pass its way in parliament. An
activist, Ranjana Kumari, says ―it is important to fix the criminal
responsibility, I don‘t think that has been done but the age has been lowered
Legal Mirror 134
to 16. So what will happen if a person is 15 years 11 months, than what we

do? So I think it is important to fix the criminal responsibility and also
configure the nature of crime.‖ Minister for women and child development
Maneka Gandhi, who is spearheading the changes, had recently said that she
is in favor of treating juveniles who have committed heinous crimes on a par
with adults. Speaking on the issue, Gandhi said according to police data,
50% of all sexual crimes were committed by "16-year-olds who know the
Juvenile Justice Act so they can do it". However, the offender will not be
handed either life imprisonment or capital punishment. The ministry has
come under fire from the National Commission for Protection of Child
Rights (NCPCR) and child rights activists for acting against international
trends and in violation of the UN convention that India has
signed. According to the ministry, juveniles who fall between the age
bracket of 16-18 years and are guilty of heinous crimes or found to be
repeated offenders of crimes like kidnapping, trafficking, attempt to murder
or outraging the modesty of women may be liable for a longer imprisonment
than the 3 years mandated under juvenile justice Act. The decision on
whether the juvenile will be tried under IPC or the Juvenile Justice Act will
be taken by the Juvenile Justice Board.
Juvenile Justice Board ordered that the boy who raped Nirbhaya,
brutalized her with an iron rod, pulled out her intestines and then cleaned up
the bus; would go virtually free by sentencing him to only 28 months in a
remand home. This order is subject to review by the JJB based on the
behavior of the juvenile and the police are required to expunge this crime
from his record in order to ensure complete rehabilitation. Despite the
unprecedented street protests following the Nirbhaya rape, there has been
little substantive debate on the adequacy of the Juvenile Justice Act to deal
with such heinous crimes. The Lok Sabha in May ‘15 passed the Juvenile
Justice (Care and Protection of Children) Act, 2014 which will allow
Legal Mirror 135
children in the 16-18 age group to be tried as adults if they commit heinous
crimes.
On the other hand:
In July 2014, it was reported that Pakistan-based terrorist

organization Lashkar-e-Toiba had asked its members to declare their age to
be below 18 years. This would ensure that they are tried under the Juvenile
Justice Act instead of the Indian Penal Code as the maximum punishment
under Juvenile Act is three years. The act presumes child to be innocent
until proved guilty. The basic rule which is followed in our country‘s
legislature is that the plea of juvenility would be set aside and he would be
tried in a criminal court if the crime committed by the minor is a heinous
one such as murder, rape etc. So the officials must not only believe on the
documents presented to them but should carry out the necessary tests to
confirm the age of the person convicted. Further it is recommended to our
law makers to implement stringent laws for this matter and its
implementation.
Role of Media:
Media plays an important role in provoking the public to unite and

stand-up against the government to force them to implement new laws or
make necessary amendments in the existing law. The media, being the
fourth state organ, shoulders the responsibility to make the state accountable
and transparent. As things stand now, when most people are not aware of
exercising their right to freedom of information in a direct and personal
way, the media‘s role and significance of empowering the public about legal
advantages. When it comes to promoting and using right to information law
as a tool to dig out cases and malpractices in the public sector, the media
seems to have done much less than what it could have actually achieved in
Legal Mirror 136
the last five years. One of the reasons why the media could not perform an
effective role in using RTI as a tool for investigative journalism is due to
lack of understanding about its real strength.
Conclusion:
It is high time that the law should be amended on the same footing
of other countries where a juvenile is also tried in a criminal court
(13)
depending on the gravity of the offence committed . In our country the
time has come to bring some reform in the Juvenile laws as there is a steep
rise in serious crimes involving youth with the mindset that below 18 years
is the 'gateway pass' for them. The punishment should be made a bit
deterrent in order to inject the feeling of fear in the mind of the criminal.
The recent 2012 ―Nirbhaya‖ rape and murder case caused utter dismay,
concern and outrage amongst the people. In our country it‘s a general trend
to reduce the age by 2-3 years at the time of matriculation so even if the
offender is above 18, but on records he is a juvenile as per the birth
certificate, so he is treated as a juvenile and escapes the proceedings.
The heinous crimes like rape and murder completely destroy the
moral of the victim and the family and is a lifelong stigma on the girl and
her family members. And many of such offenders walk free after serving a
minimal period of three years as per the juvenile justice. The juvenile who
commits crime of this gravity should not be left to walk free after serving
three years in special homes. It is high time that the; law should be amended
on the same footing of other countries like U.K, U.S.A, etc. where a juvenile
is tried in a criminal court depending on the gravity of the offence
committed even by a minor irrespective of his age.
Legal Mirror 137
CORPORATE GOVERNANCE AND THE BOARD OF

DIRECTORS: AN ANALYSIS OF THE CHANGES IN THE
2013 ACT
Gibran Naushad*
Accountability in the working of corporations is the essential need of the

modern day corporate work. It therefore becomes important to focus on
Corporate Governance to adequately balance the opportunities and
complexities that the contemporary business world presents. 1 The
Companies Act 2013 is probably the single most important development in
India‘s history of corporate legislation. Sweeping changes have been
brought in to institutionalize good corporate governance, thereby immensely
focusing on increasing the functioning efficiency of companies.
The Board of Directors of the company constitute an essential mechanism to

manage the relationship amongst the different stakeholders of the company
and strategically direct and control the performance of the organization.2
With the increase in the complexity of the business world, an environment
of trust and confidence becomes highly imperative to accommodate
competing and conflicting interests.3 Enhancing corporate accountability
and performance becomes one of the main tasks today.4
The Companies Act, 2013 brings about a gamut of changes to the corporate
governance structure in India, particularly with respect to the Board of
*Gujarat National Law University, Gandhinagar

1
Santosh Pande and Kshama V. Kaushik, ―Study on the State of Corporate Governance in
India: Evolution, Issues and Challenges for the Future‖, Indian Institute of Corporate
Affairs (2013), p. 23, available at
http://iica.in/images/Evolution_of_Corporate_Governance_in_India.pdf
2
Vidhu Shekhar Jha and Vikas Mehra, ―Corporate Governance Issues, Practices and
Concerns in the Indian Context: A Conceptual Study, 2 JMS (2015), p. 93.
3
Afra Afsharipour, ―A Brief Overview of The Corporate Governance Reforms In India‖,
The Conference Board (2010), p. 2.
4
Ibid
Legal Mirror 138
Directors.5 Significant changes have been made to the composition as well

as classification of the board. Significant efforts have been made to align the
Indian practices with global best practices, so as to increase transparency
and accountability.6
Board composition
When one looks at the Companies Act, 2013, certain interesting changes
have been made with respect to the composition of the board. The
Companies Act, 1956 stipulated that the maximum number of directors on
the board of the company could be determined through the articles of
association of the company.7 However this position has changed in the
Companies Act, 2015, wherein it has been specifically stipulated that there
can be a maximum of 15 directors in the company.8
There have also been changes with regards to the administrative

requirements relating to the increase in the number of directors of the
company. As per the Companies Act, 1956, Central Government‘s approval
was required to increase the number of directors above the limits prescribed
in the articles of the company for public companies.9 Such procedure was
also to be followed if the increase would lead to the total number of
directors on board exceeding 12 directors.10 The Companies Act, 2013
divulges from this position and stipulates that appointment of directors
5
Companies Act, 2013: Setting New Standards For Corporate Governance in India, PWC
(2013), p.3.
6
Companies Act, 2013: Greater Emphasis on Governance Through The Board and Board
Processes, Nishith Desai Associates (2014).
7
Ibid
8
Section 149(1)(b), Companies Act, 2013.
9
Section 259, Companies Act, 1956.
10
Ibid
Legal Mirror 139
above the prescribed limit of 15 can be done if such increase is authorized

by a special resolution.11
Another interesting change in the Companies Act, 2013 has been brought
with respect to ‗one-person company‘. There was no separate provision for
a one-person company in companies Act, 1956. However, Companies Act
2013 provides for ‗one-person company‘ as a company, which has only one
person as its member.12 In the specific context of board changes, the
Companies Act, 2013 makes it mandatory for a one-person company to
have atleast one director.13 The individual being the member will be deemed
to be its first director until the director or directors are duly appointed by the
member.14
These provisions do give us an indication that greater flexibility has been

given to the companies in their functioning. The provision of the method of
special resolution to increase the number of directors gains special
significance in this context as the process has been made much simpler,
thereby reducing the constraints on the company.
Classes of directors
Significant changes have been made with respect to classes of directors through
Companies Act, 2013. The Act has come up with certain new classes along with
making certain changes to the functioning of the existing classes.
Resident director
A new introduction has been made in the Companies Act, 2013 in the form of
resident director. A resident director as per the Companies Act, 2013 would be a
11
12
Section 2(62), Companies Act, 2013.
13
Section 149(1)(a), Companies Act, 2013.
14
Section 152 (1), Companies Act, 2013.
Legal Mirror 140
person who has stayed in India for a total period of note less than 182 days in the
previous calendar year.15
The provision for resident directors has basically been prompted by the need
to ensure that the boards of the Indian companies do not comprise only of
non-resident directors, i.e. people who are not based in India.16 There can be
demanding logistical as well as penalizing requirements that could arise
with respect to the directors and thus it becomes necessary to have atleast
one director who is present in India. Significant difficulties have been
caused as a result of this provision. The provision was brought into force
with immediate effect, and therefore the companies had to restructure their
boards immediately to ensure compliance with the provisions of this
section.17
Independent directors
The role and position of independent directors in the corporate framework

of India has always attracted wide attention. The Kumar Mangalam Birla
Committee in 1999 brought into inception the role of independent directors
in India.18 We then had the Naresh Chandra and the Narayan Murthy
Committees which elaborated on the aspects of corporate governance,
thereby delineating the role of independent directors in a more apt manner.19
The case of Central Government v. Sterling Holiday Resorts20 becomes
important in this context. It was held in this particular case that the Board of
Directors of the company should be strengthened by appointing of
15
16
Supra note 5.
17
Ibid
18
Pranav Mittal, ―The Role of Independent Directors in Corporate Governance‖, 4 NUJS.
L. REV. (2011), p. 289.
19
Ibid
20
[2006] 131 Comp. Cas. 6 (CLB)
Legal Mirror 141
independent directors, thereby emphasizing on the role of independent

directors in the corporate framework of the country.
There was no specific stipulation in Companies Act, 1956 that called for the
appointment of independent directors on the board of the company. Clause
49 of the listing agreement had provisions relating to independent directors
in the company. However India witnessed one of its biggest corporate
frauds in the form of the Satyam Fiasco, which created a huge setback for
the institution of independent directors.21 Numerous independent directors
from boards all over the country resigned, thereby hinting towards the lack
of definite legal framework with respect to the functioning and the liabilities
of the independent directors.22 Companies Act, 2013 gains huge significance
in this light as it for the first time stipulated a definite and adequate
framework for independent directors.
As per the listing agreement, only listed companies were required to have
independent directors on their board. Further the listing agreement provided
that the number of independent directors would constitute atleast one-third
of the board if the chairman of the board is a non-executive director,
whereas in cases where the chairman is the executive director, the number
of independent directors should constitute one-half of the board.23
Companies Act, 2013 has made certain changes in this regard. In cases of
public listed companies, at least one-third of the board should be comprised
of independent directors.24 Further, public companies having a paid-up share
capital of Rs 100,000,000 or whose turnover is Rs. 1,000,000,000 or whose
21
K Kunal, ―Satyam Fiasco: A Failure of Corporate Governance‖, SSRN (2011), p.7,
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1969172
22
Ibid
23
Clause 49, The Listing Agreement.
24
Legal Mirror 142
debentures, loans and deposits exceed Rs. 500,000,000, are required to have
atleast 2 independent directors.25
A detailed qualification for the purpose of independent directors has also

been provided in the Companies Act, 2013.26 The qualification guidelines
provided by the Act of 2013 differ in certain respects with the guidelines
that were provided by the listing agreement. The listing agreement provided
that independent directors should not be having any material pecuniary
relationship with the company.27 However the Act of 2013 puts a bar on any
pecuniary relationship, thereby making the criteria more stringent. Further
the listing agreement only stipulated that the independent directors should
not have had transactions with the company at the time of appointment,
whereas the Act stipulates that that the restriction would be applicable to the
current financial year or the immediately preceding two financial years.28
These discrepancies however have been harmonized through a circular of
SEBI in June 2014, through which amendments to clauses 35B and 49 of
the Equity Listing Agreement has been made.29
Another important addition that has been made by the Companies Act, 2013
is with regards to the duties of the independent directors. Neither the listing
agreement nor the Companies Act, 1956 prescribed any duties for
independent directors. However the Companies Act, 2013 has stipulated
guidelines for professional conduct, as well as roles, functions and duties for
independent directors.30 Assisting the company in assuring best corporate
governance practices forms an important element in the list of guidelines,
25
Supra note 5.
26
149(6), Companies Act, 2013.
27
Supra note 22.
28
Supra note 5.
29
Corporate Governance In Listed Entities: Amendment to clauses 35B and 49, SEBI
Circular, 17th April 2014.
30
Schedule IV, Companies Act, 2013.
Legal Mirror 143
thereby ensuring greater managerial oversight.31 The aspect of liability also

gains huge significance when one looks at the changes made in the
Companies Act, 2013. The Act of 1956 did not include independent
directors within the ambit of ‗officers in default‘, thereby excluding them
from any liability from the actions of the board.32 However, the Companies
Act, 2013 departs from this position and stipulates that an independent
director can be held liable, but only for such acts and omissions which have
occurred with their knowledge, attributable through board process, or with
their consent and connivance, or where they haven‘t acted diligently.33
Hence a substantial departure has been made, in terms of cautioning the
directors with a provision for requisite action in case of any default.
There are certain changes that have been made with respect to the position
of a nominee director as well. A nominee director is one who is nominated
by any financial institution in pursuance of the provisions of any law for the
time being in force, or of any agreement, or appointed by any Government,
or any other person to represent its interests.34 The listing agreement had
stipulated that nominee directors appointed by an institution that has
invested or lent in/to the company are deemed to be independent directors.35
However the Companies Act, 2013 departs from this position and stipulates
in straight terms that a nominee director cannot be an independent
director.36
Thus if we see the overall disposition of independent directors, there are

some positives as well as some negatives which can be taken from these
changes. While the stringent provisions of liability and non-association
31
Ibid, I (9)
32
Section 5, Companies Act 1956.
33
34
Explanation to Section 149(7), Companies Act, 2013.
35
Supra note 22.
36
149(6), Companies Act, 2013.
Legal Mirror 144
would surely bring independent judgment to the board, a lot of well

qualified people might also get discouraged from accepting the position of
an independent director as they might feel that they have greater liabilities
have been imposed on the position coupled with limited control over the
board.37 Moreover certain disqualifications can be excessively onerous, such as the
disqualification arising from the pecuniary relationship in any 2 financial years.
In certain cases, the pecuniary relationship may be such that it does not
affect the director‘s independence, especially when the gap is for a period as
long as 2 years.38 Hence this might further discourage qualified people to
not take up the job.
Woman director
The stipulation regarding woman directors makes for another interesting

change in the structure of the board. The Companies Act, 1956 did not have
any mandatory requirement with respect to woman directors on the board.
However, the Companies Act, 2013 explicitly stipulates that such class or
classes or companies as may be prescribed shall have atleast one woman
director.39 The class of companies is prescribed by the Companies
(Appointment and Qualification of Directors) Rules 2014. As per the rule 3,
every listed company and every other public company having paid-up share
capital of Rs. 100 crores or more or turnover of Rs. 300 crores or more
would have to comply with this requirement. Gender equality is an
extremely important and relevant principle that every company should
espouse. This provision is a small step in the said direction.
The compliance period for this provision is 6 months from the date of
incorporation if the company has been incorporated under Companies Act,
37
Supra note 5.
38
Ibid
39
Section 149 (1) (Proviso), Companies Act, 2013.
Legal Mirror 145
40
2013. However in case the company has been incorporated under
Companies Act, 1956, the provision needs to be complied with within a
period of one year from the commencement of the 2013 Act.41
While the provision is a welcoming step in terms of bringing diversity to the

boards, there might be difficulties that the companies can face in terms of
compliance with the provision unless the companies already have internally
groomed woman candidates that are aptly qualified for the said position.42
Hence the filling of the vacancy can be and has been a big hurdle for the
company, and could also lead to the companies compromising on the
standard of the member.
Duties of the directors
The Companies Act, 1956 did not stipulate specific duties that the director
had to follow or abide by. However, The Companies Act, 2013 has
stipulated specific duties for the directors.43 These duties include acting in
accordance with the articles of the company, acting in good faith to promote
the objects of the company, exercise reasonable care, skill and diligence
etc.44 Further the restrictions operate in terms of non-involvement of the
director where his direct or indirect interest conflicts with that of the
company, a bar on achieving or attempting to achieve any undue gain or
advantage either to himself or his partners or associates etc.45
Therefore the scope and confines of the working of the directors has been
aptly defined which would definitely help in improving efficiency and
therefore the quality of work.
40
Rule 3 (Proviso), Companies (Appointment and Qualification of Directors) Rules, 2014.
41
42
Supra note 5.
43
44
Ibid
45
Ibid
Legal Mirror 146
CONCLUSION
Greater standards of corporate governance have become the need of the

hour in today‘s world. More accountability coupled with requisite flexibility
to cope with the constantly changing business world becomes extremely
important. The Companies Act, 2013 aims to do the same. Changes have
been made at certain crucial parts to make the current law as updated as
possible with the global practices.
The ‗Board‘ of the company constitutes one such crucial part. Through the
research paper, an attempt was made to understand the changes that have
been made to the Board of Directors in terms of improving corporate
governance. Over the course of the paper, it was observed that changes have
been made to the composition of the board, wherein more flexibility has
been given for appointment of additional directors to the Board. Further
certain other changes such as a specific stipulation for ‗one-person
company‘ have also been brought about by Companies Act, 2013.
Considerable changes have also been made to the class of directors. Certain
new classes such as resident director and woman director have been
specifically stipulated for. In addition to this, the class of independent
directors, which was till before only dealt with by the listing agreement, has
been specifically stipulated for in the Companies Act, 2013. More stringent
provisions have been made to ensure the independence of the independent
directors, thereby ensuring that their professional conduct is true to the role
that they have been assigned. Further, provisions have also been made to
stipulate liability on the independent directors, thereby tightening the noose
on them and ensuring efficiency in their functioning.
The Companies Act, 2013 also comes up with specific duties for the
directors, which gain high significance in terms of guiding the directors in
Legal Mirror 147
the work that needs to be done by them. An overall analysis with respect to
the provisions relating to the change in the board does present to us certain
progressive and much needed changes, but at the same time poses certain
challenges as well, that need to be taken care of and adequately dealt with in the
coming times.
Legal Mirror 148
RTI: AN IMPERIUM TO CITIZENS

Rahul Sharma*
INTODUCTION
RTI: Basic Human Right
According to the constitution of India, India is a democratic country and we

have a democratic form of government. In a democratic country or a state
where democracy is practiced, the golden rule which is followed is, -
―Government is of the people, by the people and for the people‖. The
stereotype which was prevalent in the common mass regarding the
government and the way of its functioning has changed. People have
realized that a government formed by democracy and people‘s will does not
necessarily and primarily consist of people exercising their franchise once
in five years and when the voting is done retiring amidst their own self-
interest, without bothering about the government. Democracy has many key
elements which includes good governance and guarantee of basic human
rights to every individual. All the elements of democracy including these
two can be established by ensuring that the common man has every
information regarding HIS/HER government. May be this is the reason that
after 10 years of passing the bill and giving it the form of a statute, RTI has
managed to change the stereotype, and today, democracy has more of
positive content than it used to be in the past.
People have realized that they should not only caste votes rationally and
intelligently but also exercise sound judgements on the conduct of the
government and try to evaluate the merits and de-merits of the public
policies. Hence, the governance in our country does not gets limit to voting
but becomes a continuous and interactive process, which is the important in
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democracy. But this important role in a democracy can only be fulfilled by

the people in a democratic country if there is an open government, ready to
provide full access to the information pertaining to government and its
functioning.
In a democracy where people have vested their faith in a government, then

they have every right to know what their government is doing. It is
elementary that they have the knowledge about the functioning of the
government. They have every right to decide by whom and by what rules
and laws they want themselves to be governed. They should have the
information in order to decide whether the government is acting and
fulfilling the role which the constitution has assigned to them. The right to
know the facts and information about the government and its function is the
most important pillar on which democracy of any state will stand.
In every state and democracy, there is a little amount of distrust and public
suspicion against government, which always leads the common mass to
demand the right to information and knowledge of government‘s
functioning. It is an idealistic statement or a moral statement where in it is
said that every action or every policy which a government or a state makes
is and should be in public interest. But there are cases and incidents, if not
many, where governmental actions are not for public interest but are
influenced by selfish, political and other motives or pressure from other
authorities. We also see instances of abuse or misuse of public authority or
the power which is vested to them by the constitution to politicians,
bureaucrats and other executives. Now if secrecy is to be maintained, and
different government functions are to be kept away from public scrutiny, the
abuse or misuse of authority, corruption and exploitation of vulnerable class
would never stop, rather it will promote and encourage such instances,
declaring pour constitution and law incompetent to regulate such anti-social
Legal Mirror 150
conducts and to put them behind bars. Now, if there is an open government
which is ready to allow access to all the information pertaining to public
offices, officers, schemes and functioning of the government, it would help
to ensure better administration. The executives and other dignitaries will
find it difficult to indulge in corruption or misuse their authority for selfish
motives, as they will be under direct public scrutiny, which will not only
cost their respect, dignity and portfolio but will also ensure that he is booked
under valid charges and serves his sentence inside a jail. So RTI ensures
GOOD GOVERNANCE through public scrutiny and giving the common
mass a power which is easy to access.
Access to information or the right to know is prevalent since the foundation

of our democracy or better to say the constitution. We need to change the
interpretation in order to understand this. The Freedom to speech and
Expression, which is also a fundamental right, laid down in Part III, Article
19(a), of Indian Constitution, includes the right to acquire knowledge and
broadcast it. 1 freedom of expression has four broad parts :
i. It is necessary for self-fulfillment. It propagates and constructs an

environment for debates on matters affecting the society and the
administration, which is the best method to find the best possible
scheme or policy, as it can include the widest range of ideas and
discuss it to sum up into a more efficient model.
ii. Debates, discussion, advertisement and criticism are most important
pillars of democracy. All this is ensured by the right to speech and
expression and this also implies that public must have knowledge to
discuss and debate on public policies. It assists in knowing the truth,
iii. It strengthens the capacity of an individual in making decisions. If a
person has prior knowledge of what the government is proposing or
1
Commentary on The Right To Information Act, Dr. J.N.Barowlaia, p.16
Legal Mirror 151
what are its policies then it will help him to take decisions regarding
supporting or opposing it. Because public opinion is yet another
essential element of democracy.
iv. It is a mechanism which establishes balance between stability and
social change. All the citizens or members of a society or the country
should be free to form their own views, beliefs and propagate or
communicate the same. They are free to have discussion or debates
on their views or they have the right to criticize other‘s beliefs and
vice-versa.
If we summarize and bring it to a conclusion, the fundamental principle

always did involve the right to know. Thus, we can say right to know or
acquire information has a major contribution in administration and people‘s
participation in it.
To conclude Right to Information is a basic human right and even Article 19

of International Covenant on civil and Political Rights (1978) declares-
―everyone has the right to freedom of opinion and expression; this right
includes freedom to hold opinions without interference, and to seek, and
receive and impart information and ideas through any media and regardless
of all frontiers‖. While interpreting this law the Supreme Court of India laid
down that, ―the right to information is a facet of the freedom of Speech and
Expression‖: as contained in Article 19(1)(a) of the constitution of India.2
Background
Evolution and development of RTI has been bedrock on providing effective

access to the information which aids in transparency and accountability of
every public authority. THE basic idea of RTI originated from puny village
of Rajasthan. It started as a movement for social equity which further
2
Commentary on The Right To Information Act, Dr. J.N.Barowlaia, p.17
Legal Mirror 152
evolved as bandwagon for the entire nation against corruption and making
the system more accountable. It was started by MKSS (Mazdoor Kisan
Shakti Sangathan) for the minimum pay envelope of the poor construction
workers of Sohan Gardh village of Rajsamand district of Rajasthan. They
also struggled against the Panchayat Officials of the village who along with
the local officials and the private parties embezzled on a prodigious scale
through ghost entries in the development fund allotted by the government.
This movement spread athwart the state of Rajasthan leading to a movement
throughout the nation for RTI and akin state legislations. The state level RTI
was initiated by - Tamil Nadu (1997), Goa (), Rajasthan (2000), Karnataka
(2000), Delhi (2001), Assam (2002), Maharashtra (2002), Madhya Pradesh
(2003) and Jammu And Kashmir (2004).
The nationwide demand for RTI to be in acted as a law came under the
leadership of National Campaign on People‘s Right to Information
(NCPRI). The earlier passed Freedom Of Information Bill was passed by
the parliament in 2002 but it was never notified by them. The announcement
by the UPA government under the government‘s Common Minimum
Programme to the RTI Act more progressive, participatory and meaningful
made the national campaign for RTI upheave at its zenith. The National
council of development also took keen interest in it and as a result due to
this and pressure from other civil groups and multiple other factors paved
the way for enactment of RTI Act in India which officially came into effect
from October 12, 2005
Passing of the rti act
 On Dec 12, 2004 the UPA government presented the RTI Bill, 2004
on the table of the parliament
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 The lower house (Lok Sabha) passed the bill on 11th May, 2005 and
the latter house the Upper house (Rajya Sabha) passed it on 12th
May, 2005.
 The president gave his assent over the bill on 15th June, 2005.
 It was Published Officially in Gazette of India on 21st June, 2005
 It came into effect from 12th October, 2005.
Scope
The Act cover the entire territory of Union Of India except the state of
Jammu and Kashmir. It covers all constitutional functionaries like judiciary,
executives and legislature or any institution or body established by the
parliament or state statutory. All the institutes that have been established or
setup by the notification of the concern statue which are owned, controlled
or considerably financed in a large amount directly or indirectly by the
government comes under the ambit of the Act.
Private institutions do not come under the ambit of the Act. Although in the
landmark case Sarbjit Roy vs Delhi Electricity Regulatory commission3, the
chief information commissioner laid down that, the institutions which were
once public in nature, but now have been privatized will come under this
act, irrespective of the fact that it is now private body.
Political parties The Central Information Commission (CIC), consisting of

Satyanand Mishra, M.L. Sharma and Annapurna Dixit held that political
parties are public authorities as they are answerable to the citizens of this
country. Hence they must come under the purview of this act. They also
stated that the six national parties, including Congress, BJP, BSP, BJD,
NCP, CPI, CPI(M), apart from performing public functions, they are
directly or indirectly funded by the central government, making them
3
http://www.rti.india.gov.in/cic_decisions/Decision_30112006_12.pdf
Legal Mirror 154
responsible and answerable to the citizens who in a way contribute to their

fund through paying taxes to the government. Thus these parties must come
under the Act.
In contrary to this the government of India brought a RTI (amendment) Bill

which would exclude the political parties from the scope of the law.
Procedure:
Overall process of seeking information through RTI is initiated by a

―request.‖
The person seeking to acquire information:
 Must make a request in writing or through electrical means

addressing the PIO (Public Information Officer) or APIO (Assistant
Public Information Officer) via application. If any standard form of
application is available with the PIO/APIO then he/she must frame
the application on the prescribed format.
 The application must be in HINDI or ENGLISH or any other official
language of the area.
 The application should be enclosed with a fee of Rs.10 by
DD/Banker‘s Cheque/cash against receipt/postal order.
 Must be particular regarding the nature and specifics about the
information asked.
 Is not bound to mention any reason in his request for information.
 Must clearly mention his/her full name, address, contact number. No
other details like caste, religion, permanent address, language or
hometown, is required.
 In case of any difficulty the PIO/APIO shall render his/her help and
may even reduce the oral request in writing.
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Every authority coming under the purview of RTI must appoint a Public
Information Officer (PIO), who shall entertain all the requests received by
him pertaining to any query regarding the particular institution. The written
request shall be submitted to the concerned PIO/APIO and it shall be his/her
obligation to reply/address or provide information, as per asked in the
application, to the citizens of this country. If the query is about some other
public authority then it will be the duty of the PIO to forward the application
to the concerned PIO within 5 working days.
The Chief Information Commission acts on the complaints of those

individual who weren‘t able to address the complaints to central public
information officer or state public information officer, may be because they
weren‘t appointed by the government or because they refused to accept the
application.
The act has specified certain time limits till which the PIO and other
dignitaries providing information under RTI must act:
 If the request/application is addressed to PIO then the time limit until

which the PIO must reply is given to be 30 days.
 If the request/application is addressed to APIO then the time limit
until which the APIO must reply is given to be 35 days.
 If the request/application which is received by the PIO/APIO is
concerned to any other public authority then the same must be
forwarded to the PIO/APIO of the concerned public authority and
the time, which is 30 days, will be calculated from the date on which
the PIO of transferee authority receives the application.
 But if a life or liberty of any person is dependent on the information
then the PIO of the concerned authority is expected to reply within
48 hours of receiving the request/application.
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Since the information is to be paid, the reply from the PIO can either be in
denial to the request, completely or partially, or it may be in regard to
compute further fees.
Fees
Any citizen who wants to seek any sort of information from any public
authority or institution needs to send, along with application, a demand draft
or a bankers cheque or an Indian Postal Order of Rs.10/- (Rupees ten)
payable to the Accounts Officer of the public authority as fee prescribed for
seeking information
The applicant may also be required to pay further additional fee towards the
cost of providing the information, details of which shall be intimated to the
applicant by the PIO as prescribed by the RTI ACT and as mentioned
above.
Exceptions
Not all the government institutions notified or governed by the statue comes
under the ambit of the Act. There are quite a few organizations which have
been exempted from the Act, some of these organizations governed by the
statue are mentioned as follows : Central Intelligence and Security agencies
specified in the Second Schedule like IB, Directorate General of Income
tax(Investigation), RAW, Central Bureau of Investigation(CBI), Directorate
of Revenue Intelligence, Central Economic Intelligence Bureau, Directorate
of Enforcement, Narcotics Control Bureau, Aviation Research Centre,
Special Frontier Force, BSF, CRPF, ITBP, CISF, NSG, Assam Rifles,
Special Service Bureau, Special Branch(CID), Andaman and Nicobar, The
Crime Branch-CIDCB, Dadra and Nagar Haveli and Special Branch,
Lakshadweep Police etc.
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However the prescribed agencies by the state government through the

notification shall also be exempted. But antipodal to this the exemption is
however not absolute, the exempted organization need to provide the
required information pertaining any allegation of corruption or violation of
human rights. The information is such allegation cases shall only be asked
with the prior permission of the Central or State Information Commissioner.
There are certain information that have been discussed in article 8 of the Act
which are exempted from discloser:
 It prevents the disclosure of such information which if disclosed

would adversely affect the sovereignty and integrity of Union Of
India, security, scientific, strategic or economic interest of the State
and its relations with the foreign states and government or it might
lead to incitement of violence
 The information which have been explicitly prohibited to be issued
by an court or an tribunal or the information whose disclosure would
establish contempt of court.
 The information causing breach of parliament or state legislature.
 Information on papers related to the cabinet papers which includes
thoughts, suggestion and consideration of council of ministers and
other higher officials.
 Information that is not at all related to the public exercise or not of
any stake to public and the information which when disclosed would
breach an individual‘s personal liberty or privacy.
 Information which would disturb, cause hinder an ongoing
investigation or prosecution against a criminal or an offender.
 Information which when disclosed would cause a serious threat to
an individual‘s life or his safety.
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 Information which is received by any foreign source such as foreign

government, international organizations with a confidentiality
purpose.
Corruption in India:
Even after Sixty Eight years of independence, corruption is the biggest

challenge faced by this country. Corruption has become an intrinsic part of
India‘s society and it is am expected conduct involved in every transaction.
It started as a bribe or additional benefit to get through some illegal task or
conduct but now it has modified itself to a form in which you have to pay
bribe even if it‘s your right or you are involved in some legitimate task.
Why is this corruption so prevalent in India? It is because of the mutual
interdependency of bureaucrats and politicians, they have formed a web in
which everyone aids each and every one in institutional abuse of power and
authority. Many trace the growth of corruption to its colonial roots. They
believe that culture of secrecy in governance, began during British regime
and is prevalent till now. They believe this culture perpetuated corruption,
where a huge amount of money is diverted from the funding pertaining to
welfare projects or development schemes and this money is stacked with the
4
politicians, bureaucrats or other executives for their personal use.
Highlighting the prevalence and impact of corruption on development

projects former Prime Minister had cited that,‖ estimated that for every
rupee spent on anti-poverty programs by the government only 15 per cent
went to intended beneficiaries, 34 where the remaining 40 per cent was
4
MM Ansari, "Impact of Right to Information on Development: A Perspective on India‘s
Recent Experiences"
(Paper presented at the UNESCO Lecture, Paris, May 15 2008).
Legal Mirror 159
spent on administrative costs and nearly 45 per cent ―disappeared into the
corruption column‖. 5
No doubt India is ranked 85 among 174 countries in the Corruption

Perception Index, which measures the perception of corruption in public
authorities of every country.6
RTI: Tool to fight against Corruption
RTI has been used several times for raising issues on public services
including water, sanitation and there has been cases were even the
performance of local elected representatives were questioned on the basis of
RTI reports. Not only has this RTI also proved its worth in high profile
scams. For example, much of the information regarding corruption and
scam of funds and tenders pertaining to CWG (Common wealth Games)
scam was unearthed using RTI.
RTI has made the government and other public authorities more transparent,
open and accountable to the citizen of this country. This way the control of
the information, which is also a valuable public resource, comes under the
direct control of common mass from the public authorities. In India a simple
act of filling an RTI can sometimes lead to tangible results.
RTI has become the most fundamental law in this country as it has become
the most effective tool when it comes to fighting against the most
fundamental challenge which this country is facing since independence,
Corruption. It is considered as the most effective tool as it can be used from
local panchayats to parliament, from a very small village to posh of Delhi,
and against corruption of ration shops to 2G scam.
5
A Kumar, the Black Economy of India (Penguin Books, 1999).
6
https://www.transparency.org/cpi2014/results
Legal Mirror 160
Right from filling an application to receiving a reply, RTI has been made
extremely easy and flexible. it also has provisions for entertaining oral
queries which would be reduced to Written application by the concerned
PIO. A token of Rs. 10 is taken against such a huge power as RTI, thus
making it more citizen friendly. The above mentioned factors makes it
easier for the citizen to participate in government functions which will
ultimately cause an awareness for different governmental activities, which
would lead to establish a check on governmental functions and policies.
With corruption being the major obstacle in the development of a poor

country like India, an empirical study has concluded that RTI has actually
negatively affected corruption and its statistical impact on fighting and
curbing corruption is pretty high.. The study was conducted in 20 states for
approximately three years, and it concluded that RTI has reduced corruption
in states by an average rate of 18.5 percent. Hence it can be a valid
conclusion that this legislation makes a significant contribution in checking
and controlling corruption and empowering the citizens by breaking the ice
between the general mass and public authority. This legislation breaks the
informational monopoly of public authorities.
RTI has proved to be an effective tool in preventing corrupt officials from

abusing there power and misusing information for their personal benefits. It
also gives the government an authority and public support to conduct
complete audit of any public authority in mater of any suspicion of scam or
corrupt practices being practice at that office. RTI is a very important tool in
the hands of the common mass or the citizens of this country to address
issues of governance and evaluate a particular public policy or welfare
scheme on the basis of its merits and demerits.
Indian citizens have got an opportunity to actually realize Swa-raj (good

governance) in the light of Su-raj (self-governance). We actually have an
Legal Mirror 161
opportunity to get ourselves involved in the governance of our own self, and
if we ourselves are involved we can actually keep a check on whatever is
happening and utilize our taxes in a better way. We actually have got the
power to directly participate in decision making process, which is the whole
essence of democracy, of the people, for the people, by the people.
RTI: Good Governance
After the current Lok Sabha elections in India and the Modi wave which in
news for like six months or so, the one thing which everyone, right from
politicians to common man, talked about was ―Good Governance‖. One of
the political party won with a historical majority just because of these two
words. The promise to establish good governance brought them to form the
government. How can we establish good governance? What are the possible
milestones or the mistakes which we need to take care for establishing good
governance? Fighting corruption, raising accountability by increasing
transparency are some of the indispensable notions of good governance. In
recent times good governance is gaining popularity and is considered
important for promoting development, peace and socio-economic security.
Every social group including the politicians, common mass, and other civil
bodies have started to realize that citizen participation in policies is
important for running a smooth government because citizens are the
ultimate beneficiaries.
RTI in India, gave the access of all the information to the Indian citizens,
irrespective of the public authority involved or the reason for which the
information is asked, making the government and its functionaries more
accountable and responsible. Just two and half years after its enactment in
2005, over two million requests were filed under this Act for seeking
knowledge. This very fact reflects the interest of common mass in law
Legal Mirror 162
making process and functioning of our government. NGOs and other civil
bodies have used this act immensely in order to expose corrupt practices,
claim rights, to know about anti-poverty schemes and acquiring information
about policies for public interest.
Epics like Ramayana and Mahabharata contains some of the basic principles
of good governance or ―Ram Rajya‖ are still prevalent in today‘s society.
Principles of statecraft and governance ad laid down in those epics have still
found some importance in today‘s political world. Most of the modern day
concepts of good governance like good quality of life, ethical up wardens,
economic welfare, have got primary position in those epics. The primary
objective of the administration should be happiness of the common mass.
Thus, from ancient times it is believed that the primary focus and objective
of a ruler should be on good governance.
In today‘s India where people elect their representative, they have the right
and they always loom up for a good or better to say high quality
performance from their government. An atmosphere of good governance
gives a boost to the citizens and the citizens go for their own job and
services with an enhanced zeal and energy. On the contrary to this if a
government is inefficient and corrupt then it will fill the citizens with
distrust, it will lead to conflicts and may even stretch up to civil war.
Having an open government which gives access to information pertaining to

its functions and schemes, increases the amount of trust among the citizens.
Good governance helps in creating an environment which can and will
support a sustained and cohesive growth. We have to understand the fact
that good governance is achieved by change, rather it should be demanded
by the citizens of this country, because it is the citizen who are to decide
whether the governance or the function of the government by which they are
Legal Mirror 163
ruled or governed in citizen friendly or not, hence it is necessary to involve

the citizen in the process and have a system of Citizen participation.
It is a common perception and believe of many scholars and political

scientists that the information empowerment will lead to good governance
in the country. And by good governance they mean eradication of
corruption, equal rights for everyone, and no more exploitation of poor
classes, basic infrastructure and amenities for all the socially and
economically backward sect of people and fulfillment of other DPSP as laid
down in the constitution of India. It also means that the government will
remain accountable to the citizens and it will be under an indirect control of
the common mass. But for this the government needs to provide information
so that it can become accountable to the citizens.
Computerized or digital information system is a very good means for

broadcasting or providing information on government policies, schemes,
programs and projects.
It can be explained with an example of good governance at Kerala. Like

Kerala, other states may consider moving in the direction of starting
computerized information centers/e-governance centers in every panchayat.
As a step in this direction, states may consider phased development of e-
governance centers at the development block and village levels. The other
means of effective information dissemination include strengthening public
information systems at the grassroots, especially field publicity7.
RTI and E-governance:
The most easily accessible and transparent form of communication which

would fulfill the essence and objective of Right to Information is, providing
77
https://www.transparency.org/cpi2014/results
Legal Mirror 164
information through a computerized or digital way. Within e-domain of the

government and other public authority, all the data can easily be recorded,
tabulated, classified, arranged and in time of any query can easily be
provided or disseminated to the public at large.
E-governance and digital way of providing Information under RTI would be

a more citizen-centric government and it will reduce operational cost. But
most of the methods and initiatives do not give the benefits which is
claimed, but the failures are not due to governmental lacking rather it is due
to technical inefficiency. Excellence in e-governance requires initiatives
which would be effective oriented rather than efficiency oriented. The
method or system opted for digitalization should be practical and should be
in a manner which can be implemented in a country like India. This can
only be done in an atmosphere of good-governance, where basic
infrastructure is provided and maintained by the government.
Flow of information affects governance. Freedom of information laws or

RTI as in India affects how the country is governed. However, the purpose
of such laws is to provide a framework under which the information can be
provided or shared. Economic theory tells us that information is needed to
formulate sound economic and political choices, to monitor agents, reward
or punish them accordingly. Better availability of information regarding
economic policies of the government will lead to enhanced investment and
better demand of information will cause increase in participation of
common mass or investor, which will ultimately lead to an aware society.
The ability of the common mass to demand and receive information which
they require is highly related with the concepts of good governance.
Having an e-database or digital copies of various information regarding

economic policies and various other welfare projects and schemes will
enable the government to access any data if a query arises. It will even help
Legal Mirror 165
in fulfilling the dream of digital India as all the data pertaining to all the
public authority shall be maintained in a systemic and tabulated manner. It
will ultimately ease the government‘s task of framing laws and other
policies. As the data will already be present in a digital format, accessing it
through online domains will also become possible.
Even corruption can be checked through digitalization. All the tenders and
welfare projects which faces scams and other corrupt practices can be
monitored. All the transactions can be held online and if still any queries
arise the transparent digital system would stand firmly to answer that query.
Hence basically E-governance will not only enable PIS (public information
Services) system to reengineer the structure but also will help in
reorganizing the structure, procedure and processes for speedy delivery of
services and answers. The demand for E-governance is increasing in
consensus among the citizens, as they believe it will help the government in
rendering services in a timely, cost-effective and corruption free manner.
Moreover, political, economic, social and technological changes and
developments ushered E-Governance as a salvation to the shrinking role of
Governments in delivering goods and services rapidly. Connectivity,
community participation, and content are the prerequisites for designing
effective governance8
The first phase of e-governance is marked by web presence of public

institutions and dissemination of information. This will be facilitated by the
Right to Information Act, 2005 (RTI) and this has been developed as a basic
feature of all public services where the service and service provider details
are made available in a proactive manner. This information is also being
8
Koneru (2007)
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integrated for citizen access through the National and State Portals which
provide basic information on Government programs and services.9
Measure to improve the efficiency of RTI
Studies over the past many years show various problems among which the
most persistent are as follows with their most appropriate solution:
 There should not be any fragility in the implementation of the

mechanism of the act.
 Nadir amount of public awareness and adoption of the Act. This
problem should be eradicated by means of spreading awareness
amongst the masses through electronic means, literary means,
NGO‘s and other organizations.
 There should also be a provision to keep the identity of the applicant
confidential rather than the ubiquitous system of revealing
individual‘s identity thereby compromising with their life and
personal security.
Conclusion
RTI is a significant contraption which can furnish a noteworthy amount of

social justice which is the sole motive of our constitution that is providing
social and economic justice to everyone. It encourages good governance by
emancipating people‘s capacity to involve more effectively in the
democracy and making the functionaries accountable to every act done
under the statue. This promote the basic idea of democracy that is
government is of the people, by the people and for the people.
9
―Promoting e-Governance through Right to Information: A Case-study of India,
Singh(2010)
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The RTI, is often analogized with the United States Freedom of Information
Act (FOIA), which lure the concept of corruption-free society and
demonstrates India at the acme of a ―socio economic evolution‖. In the
global prospective, RTI to a large extent was considered as a managerial
governance reform in late 19th century, but it is, now regarded as a cardinal
fundamental right. As the increasing number of masses are discerning the
potential of the Act, its extent has evolved as an imperium for the citizens
against the corruption and it has ensured increased accountability and
effectives of the government to the citizens of this country.
E-governance is revolutionized by ICT and India in particular have been

promoting by utilizing in its technology. Instead of following the stereotype
method of using paper for keeping records, significant efforts have been
made to make the offices paper-free by application of various digitalized
methods such as keeping electronic media files of the records and executing
electronic signatures. E-governance helps to curtail the cost and enhance its
efficiency, thus helping in good governance. There is gravitate need of
transparency in governance and RTI is a dynamic contraption available to
the citizens to curb corruption and enhance the amount of transparency and
accountability in the governance ultimately achieving the fundamental goal
of providing social justice and encouraging the involvement of people in
governance to make it a true example of a democratic government.
Only through abidance and avant-garde approach would help RTI to work
more efficaciously and then only India would become a paradigmatic model
for other countries across the globe in the developing era.
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FOREST CONSERVATION AND ROLE OF JUDICIARY IN

CONSERVING THE FORESTS
Rajni Kohli*
Introduction
Forests as a natural renewable resource is most important for all human

beings as well as animals.They are gift of nature.Their beauty has filled our
hearts with great joy. They control temperature, bring rain,prevent soil
erosion and improve soil fertility.But now a days they are cut down
continuosly. People cut trees for their personal benefits.
India is the world's largest consumer of fuel-wood. Fuel-wood meets about

40% of the energy needs of the country.Around 80% of rural people and
48% of urban people use fuel-wood.Unless India makes rapid efforts to
expend electricity generation and power-plants but there are several poor
people who will continue to use fuel wood as a source of energy.They fulfill
their energy needs through the destruction of forests.
To protect the trees from destruction the Forest (conservation) Act has been
passed in 1980. Under the provisions of this Act, prior approval of the
Central Government is essential for diversion of forest lands for the non-
forestry purposes.Whoever contravenes or abets the contravention of any of
the provisions of Section 2, shall be punishable with simple imprisonment
for a period which may extend to fifteen days.
The basic object of this Act is, to regulate the indiscriminate diversion of
forest lands for non forestry uses and to maintain a logical balance between
the developmental needs of the country and the conservation of natural
heritage.
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The judiciary has played a vital role in the development of forest law in
India.
The provisions of forest law were mere letters but the judicial interpretation
has given life and blood to them.The judiciary has performed the role of law
maker and established various committees and empowered them to enforce
the provisions of forest laws. Besides,emphasising the significance of
forests, the courts endeavoured to protect the rights of persons affected by
development projects and tribal people, who form part of the forest
environment. Relying on the ―public trust doctrine‖ to protect and preserve
forest and natural resources they tried to enforce the concept of sustainable
development to solve the environment-development dilemma and upheld
the controls and exploitation of forest resources.
Forest conservation law in india is not only impacted by the Godavarman

case alone but also by the decisions of the supreme court in the centre for
environmental law WWF-India v. Union of India which is related to
protection of National Parks and Santuaries. Although the principle concern
of the case is related to the issues of settlement of rights in National parks
and Sanctuaries, yet its scope is much beyond this issue.The most
significant was the order of 13-11-2000, wherein the supreme court through
interim order restrained all State government from dereserving National
Parks, Sanctuaries and forests.The contributions of the judgements in these
cases have made unique contribution to the movement for conservation of
forest in india. The Godavarman case is undoubtedly one of the classic cases
for the study of continuing mandamuses and the scope of Public Interest
Litigation.
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Meaning of Forest:
The word forest is derived from the latin word ‗Foris‘ which means outside.
This has reference to village boundaries or fence. ‗Forest‘ or ‗Jungle‘ is a
collection of trees, shrubs, herbs,grass and naturally has wild life living in it.
Forest is a great or vast wood.
In short, forest is a large area of land covered with trees. Trees are an
important component of the environment. They help to create A special
environment for all kinds of plants and animals such as they clean the air,
cool it on hot days and conserve heat at night. Thus, forest is a complex
ecosystem consisting mainly of trees that buffer the earth and support a
myriad of life.In Laxman Iccaram v.District Forest Officer, it is defined as
―an extensive tract of the land covered with trees and undergrowth,
sometimes intermingled with pasture‖
Forest Conservation:
Forest conservation is the practice of planning and maintaining forested

areas for the benefit and sustainability of future generations. In the United
States forest conservation became popular in late 19th and early 20th
centuties.Forest conservation involves the upkeep of the natural resources
within a forest that are beneficial to both humans and the ecosystem.Forest
conservation acts to maintain,plan and improve forested areas.Forests
provide wildlife with a suitable habitat for living along with filtering
groundwater and preventing runoff.
Importance of forest conservation:
Forests are natural renewable resource. They are very important for life and
prosperity of human beings. They preserve the physical features of land,
maintain climate and prevent soil erosion. They also help in safeguarding
diversity of wild animals and plants.
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Forests play a vital role in preventing global warming.They have

variety of functions including land conservation, securing water resources
and control of climate change. A well managed Among the most important
roles of forests are sustainable production of wood and timber products,
provision of food,shelter, conservation of water and soil. Following are the
examples of usefulness of forests:
1. wood : wood is a major forest product. It is used for many purposes such
as timber, fuel and a basic raw material for building houses and industries.
There are various other things which are prepared from wood.
2. Food : Forests provide many types of eatables to the tribal people living
in the forest such as tuber,roots, leaves and fruits of plants and meat from
animals. So, forests are the main source of food for the tribal people.
3. Shelter: forests provide shelter to many human beings like tribal peoples
and animals like insects, reptiles, birds and mammals.
4. Improve the quality of soil: Decomposition of dead fallen trees, fruits

and flowers of forests plants increase the fertility of the soil which improved
the quality of soil.
5. Prevent soil erosion: The soil of forests has quality to conserve water
which prevent the quick run of water and evaporation of water. The roots of
the various plants are so firmly attached to the soil and soil erosion by
rainwater is reduced.
6. Ecological balance of an area: Forest are essential for maintaining wild

life and ecological balance of an area. They serve as an area of conserving
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biological diversity, preserving and meeting the needs of number of species

of plants and animals. During the process of photosynthesis , forests release
the oxygen and absorb carbon-dioxide of the atmosphere. Thus,t hey help in
protecting the environment also.
7. Maintaining the forest eco-system: Fallen leaves through degradation

promote invasion of micro flora and fauna. Roots of plant after their death
provide food and energy to the flora and fauna. Soils of forests have
different organic and inorganic substances, which help in maintaining the
forest eco-system.
Deforestation:
Deforestation is cutting down of trees for non-forest purposes.when humans

remove or clear large areas of forest lands and related ecosystems for non-
forest purposes then it is said deforestation.It includes clearing for farming
purposes, ranching and urban use. In these cases, trees are never re-planted.
Causes of Deforestation
There are certain causes which are responsible for the deforestation-:
1. A large number of trees are cut to meet the demand of fuel wood or to
meet the demands of different industries. This has resulted in making the
forest soil naked and prone to soil erosion.
2. Increasing population is the main cause of deforestation. More land is

needed to establish housing and settlements, so forest land is reclaimed.
Large area of forests has been cleared for the purposes of construction of
roads and rail tracks.
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3..Some of the other factors that lead to deforestation are also part natural
and part anthropogenic like Desertification of land. It occurs due to land
abuse making it unfit for growth of trees. Many industries in petrochemicals
release their wastes into rivers which results in soil erosion and make it unfit
to grow plants and trees.1
4.
For generating electricity big dams are being constructed on forest land
and they have covered large parts of forests area.
5. Agricultural activities are one of the major factors affecting deforestation.

Due to overgrowing demand for food products, huge amount of tress are fell
down to grow crops and for cattle grazing.
6. Fires have also been responsible for large-scale destruction of

forests.Hundreds of trees are lost each year due to forest fires in various
portions of the world. This happens due to extreme warm summers and
milder winters.
7. People living in forests, such as tribals, are totally dependent on forests

for their food, shelter and medicines. So, their wild cutting of trees has
brought the forests in a bad shape.
8. Lack of tree consciousness on the part of people is also one of the causes
for deforestation. People keep cutting trees without realising the loss they
are causing.
Effects of Deforestation
1. Climate changes: Deforestation has influenced the climate also.It has

resulted in the decease of rainfall due to decreasing atmospheric humidity
over the forests.
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2. Increase in Global Warming: Trees play a major role in controlling

global warming.The trees utilize the green house gases restoring the balance
in the atmosphere.With constant deforestation the ratio of green house gases
in the atmosphere has increased which results global warming.
3. Soil Erosion:Trees provide shade to the soil, which remains the soil
moist. With the clearance of tree cover, the soil is directly exposed to the
sun, making it dry.
4. Floods: Trees absorb and store large amount of rain water with the help
of their roots. Due to the cutting of trees, the flow of water is disrupted and
leads to floods in some areas.
5. Wildlife Extinction: Due to cutting down of trees, various species of

animals are lost. They lose their habitat and forced to move to new location.
Some of them are even pushed to extinction. Our world has lost so many
species of plants and animals in last couple of decades.
Role of judiciary in forest conservation:

In India,the judiciary has played a pivotal role in forest conservation.It also
has shown judicial activism by entertaining public interest litigations under
articles 32 and 226 of the constitution. The supreme court and high courts
have delivered many important judgements regarding the protection of
environment.
In Tarun Bharat Sangh v. Union Of India1 the State Government

of Rajasthan,though professing to protect the environment by means of the
notifications and declarations, was itself permitting the degradation of the
environment by authorizing mining operations in the area declared as
―reserve forest‖. In order to protect the environment and wildlife within the
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protected area, the Supreme Court issued directions on within the protected
area.
For the protection and conservation of forests it is necessary that there
should be no illegal felling of trees. The judiciary has shown its concern to
stop the illegal felling of trees in forests.
In T.N. Godavarman Thirumulkpad v. Union of India It was brought to

the notice of Supreme Court that under the garb of removing infected trees
in accordance with the order of Supreme Court, the trees having no desease
were also cut. Thus, the Supreme Court in this case directed the State
Government and its functionaries to restrain from cutting any trees till
further orders,even if it was found to diseased tree. The Supreme Court has
noticed on the basis of various reports and affidavits that the deforestation
and illicit mining has caused immense damage to the environment and
ecology. Accordingly, from time to time, the Supreme Court has been
issuing directions to stop illegal felling of the trees and to protect and
preserve the forests.
Legislative efforts for the forest conservation

The present legislative measures in India for the conservation of forest have
its origin in British colonial India.The first Indian Forest Act was passed by
the Supreme Legislative Council in 1865.The Act of 1865 was amended
from time to time and ultimately it was repealed and replaced by the Indian
Forest Act ,1927 which not only consolidated but also re-shaped the law
relating to forests. The said Act of 1927 was also amended from time to
time.
The Indian Forest Act,1927
The Indian Forest Act,1927 contains 86 sections and it deals with four
categories of forests namely (i) Reserve Forests (ii) Village Forests (iii)
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Protected Forests (iv) Non-Government Forests.Thus the Act is wide

enough to cover all categories of forests.
The Indian Forest Act,1927 was clearly one step to considering the
importance of ecology and environmental balance. Most of the private forest
covered under the fourth category mentioned above were earlier parts of
estates which have now been abolished and thus such forests have also
become government property. The Act sought to consolidate the law
relating to forests, the transit of forests produce and the duty leviable on
timber and other forests produce.
The Act empowers the State Government to constitute any forest-
land or waste-land as Reserved Forest and to issue notification in official
gazette.After the notification ,no right shall be acquires in or over the land
comprised in such notification and previously recognised individual and
community rights over the forest are extinguished upon such a notification
and access to forest and forest products becomes a matter of privilege
subject to permission of forest officials acting under governing laws and
regulations.
The Village Forests are established when state assigns to a village
community rights over any land which has been constituted a reserve
forest.T he State governments make rules for managing the village forests
and prescribe conditions under which the village community is provided
with timber or other forest products. The rules may also assign duties to the
village for the protection and improvement of the forests.
The State Government has also been empowered to declare any
forest-land or waste-land which is not included in the reserve forest but in
which the government has proprietary right or rights to any part of the forest
products as protected forests.
The State Government s can close portion of the forests ,for such term not
exceeding 30 years, as long as the remainder of the forests is sufficient for
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individuals and communities to exercise their existing legal rights to use

forests.The State Governments have been empowered to notify certain trees
and forests to be protected forests and penalize for cutting,collecting or
removing forest produce without licence being granted by the respective
states.
Non Government Forests are those forests which are not belonging to
Government.The State Government can,by notification ,regulate or prohibit
the breaking up or clearing of land for cultivation, the pasturing of cattle or
the firing or clearing of the vegetation to protect against
storms,winds,floods, to preserve soil from erosion, to maintain water supply
in springs, rivers and tanks,to protect roads, bridges, railways and to
preserve public health, etc. The Act also authorizes the State Government to
acquire private land for public purposes under the Land Acquisition
Act,1984.
The Forest Act of 1927 remained in force till 1980.In 1980, the
Parliament in response to the rapid decline in the forest cover in India and
also to fulfill the constitutional obligation under article 48-A of the
Constitution enacted a new legislation, the Forest Conservation Act,1980.
The Forest Conservation Act,1980

This Act has been passed with a view to check deforestation which has been
taking place in the country on a large scale and which had caused ecological
imnalance and thus led to environmental deterioration. The emphasis was on
checking the conversion of forest lands for non-forest purposes. Stringent
rules and regulations have been put in the place to govern forest lands for
non-forest purposes. Under this act no state government can authorize such
conversion without the approval and permission of the central
government.The act does not prohibit the conversion of forest lands for non-
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forest purposes all it requires is that the central government must permit
such a conversion and that the action for which the permission is sought
must have the approval of the central government. The act was designed to
have a sweeping approach towards issues related toforest conservation and
similar issues, proof of this can be found in the wording of the statement and
objects and reasons of the act, which reads,―an act to provide for the
conservation of forest and for matter connectedtherewith or ancillary or
incidental thereto.The provisions of the act have also been drawn upon
similar lines. Some of the silent features of this act are:
1.Restrictions on the dereservation of reserve forests or use of forests for

non-forest purposes:
Section 2 of this Act states that, no State Government or other authority

shall make, except with prior approval of the Central Government,any order
directing:
(i) that any reserved forest declared under any law for the time being in
force in that state or any portion thereof, shall cease to be reserved.
(ii) that any forest land or any portion thereof may be used for any non-
forest purpose.
(iii) that any forest land or any portion thereof may be cleared of trees which
have grown naturally in that land or portion, for the purpose of using it for
reafforestation.
3.Regulation concerning the diversion of forest lands by way of lease to
industries and individuals
4.Restriction on the clear felling of trees and
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Legislative and executive efforts for the conservation of forests in India

The present legislative measures in India for the conservation of forest have
its origin in the Britishcolonial India. The Supreme Legislative Council
passed the first Indian Forest Act in 1865. This amounted to the
formalisation of the erosion of both forests and the rights of local people to
forest produce. The general law
related to forests in British India was contained in the Forest Act 1878 and
it‟s amending acts. The Forest Act of 1927 consolidated the pre-existing
laws. The territorial jurisdiction was also limited. The legislative
framework during the British Raj was heavily oriented towards extraction of
forest resources. Forestry was thus production oriented at that time. The
Indian Forest Act, 1927 being the product of the British colonial days,
reflects theexploitative intentions of colonial feudal society of the time
rather than the environmental and ecologicalinterests to preserve the forest.
21927 Act was an industry friendly act and it was responsible for a
seriousdepletion of forest cover in the country. The act drafted with twin
object of restricting the use of forest land for anon-forest purposes and
preventing the de-reservation of forests that have been reserved under the
act of 1927The Forest Act of 1927 remained in force till 1980.An attempt to
slow down the rapid deforestation and depletion of forest cover taking place
in the country wasmade in 1980 with the enactment of the Forest
(Conservation) Act of 1980.. The emphasis was on checking theconversion
of forest lands for non-forest purposes. Stringent rules and regulations have
been put in the place togovern forest lands for non-forest purposes. Under
this act no state government can authorize such conversionwithout the
approval and permission of the central government.The act does not prohibit
the conversion of forest lands for non-forest purposes all it requires is that
the centralgovernment must permit such a conversion and that the action for
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which the permission is sought must have theapproval of the central

government. The act was designed to have a sweeping approach towards
issues related toforest conservation and similar issues, proof of this can be
found in the wording of the statement and objects andreasons of the act,
which reads,
―an act to provide for the conservation of forest and for matter
connectedtherewith or ancillary or incidental thereto.The provisions of the
act have also been drawn upon similar lines. Some of the silent features of
this act are:
1.Restrictions on the use of forests for non-forest purposes
2.Restrictions on the dereservation of reserve forests,
3.Regulation concerning the diversion of forest lands by way of lease to
industries and individuals
4.Restriction on the clear felling of trees and Constitution of an advisory
committee to grant an approval for the conduct of any activity for which
anapproval of the Central Government is required.The Provisions
restraining clear felling of trees and restriction of the leasing of forest lands
to privateindividuals and industries were brought in by an amendment in
1988, in order to give more teeth to the forestconservation efforts. The act
also speaks about the constitution of an advisory committee to advice the
Government in matter concerning the grant of an approval under section 2,
or any matter connected with theconservation of forests which may be
referred to by the Central Government. The composition of this Committee
has to be in accordance with the FCA 2003
Public Interest Litigation

Public Interest Litigation is an effective tool for the forest conservation.
Through the tool of PIL the Supreme Court had dealt with variety of issues
related to forest conservation,protection of wildlife, protecting the rights of
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tribal people and thus balancing the symbiotic relationship between the
forest dwellers and the goal of forest conservation.1The court has also
addressed the issues of balancing the right to freedom of trade and business
and the conservation of forest and wildlife and issues related to
biodiversity.2 Supreme Court has interpreted the provisions of the Forest
Conservation Act,1980 with the help of PIL.
Interpretation and Implementation of Forest Act, 1980 by the Supreme

Court
The Supreme Court has interpreted and enforced the provisions of Forest
Conservation Act 1980 strictly in
T.N.Godavarman Thirumalkpad v. Union of India,

In this case the Court issued directions to enforce the FCA. All wood based
industries were closed and an embargo was imposed on the exploitation of
forest. The Court also created Central and State committees to enforce the
directions, issued in this case. The court recognized that FCA was enacted
with a view to check ecological imbalance caused by rapid deforestation.
The court also defined the word forest used in the FCA.The Court said the
provisions of the act must apply to all the forests irrespective of the
ownership or classification thereof.
―The word forest must be understood according to its dictionary meaning.
This
description covers all statutory recognized forest, whether designated as
reserved, protected or otherwise for the purposes of s.2 (I).The word forest
will not only include forest as understood in the dictionary sense, but also
any area recorded as
forest in the Government record irrespective of ownership.‖
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The Court further held that any activity going on in any forest in any state of
the country which is a non-forest activity is in isolation of the act and has to
cease immediately. As a result, all mining, quarrying activities were
prohibited in the forest. A complete ban was enforced on the felling of trees
in all forests, and felling and logging could be carried out only if they are in
accordance with the working plans of the State Government only.The
Courts all over India have followed the Principles laid down by the Supreme
Court in Godavarman case.
Shree Bhagawati Tea Estates v. Government of India

In this case the Supreme Court examined anumber of issues with respect to
the FCA. Firstly, The Supreme Court made it clear that renewal of mining
licence after Forest Conservation Act came into force can be made only on
getting prior permission from the Central Government.The court had also
confronted with the issues of mining activities in the forest areas. The court
had clearly laid down prohibition of mining activities in the forest areas.
State of Bihar v. Banshi Ram Modi.

In this case, the use of forest land for non forest purposes was clearly denied
by the court .
Dhirendra agrawal v. State of Bihar

Renewal of stone crushing lease without prior permission of the from the
Central Government was considered a serious breach of duty in the case
Dhirendra Agrawal v. State of Bihar
Role of Government in Forest Conservation

THE Government of India issued a Resolution on 19th October ,1984
declaring its forest policy.
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The principles laid lown in that policy are:
1.The sole object of administration of state forests is public interest.
2.Forests situated on all hill slopes should be maintained as protection

forests to preserve the climatic and physical conditions of the country.
3. Forests which provide valuable timbers should be managed on

commercial lined as a source od revenue to the states.
4. Forests which provide inferior timber , fuelwod or fodder or are used for
grazing, should be managed in the interest of the local population, care
being taken to see that the user does not annihilate its subject.
National Forest Policy,1952

After independence, the first forest policy was declared on May 12, 1952 by
the Govt. Of India.According to this policy ,the Govt. Planned to promote
and expand forests and manage them scientifically:
(i) to protect land from floods,soils erosion and unfavourable climate

condition
(ii) to encourage the production of timber and other raw materials which are
needed for industry
(iii) to use timber for building construction for railways and for defence
purpose
(iv) to maximise revenue from forests
(v) to supply forest products to all consumers
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The Govt. Has proposed the following programmes:
1. Afforestation:
Afforestation schemes such as (i) plantation of quick
growing species (ii) plantation to be raised under the scheme of reabilitation
of degraded forests were brought under state plans.
2. Social Forestry:
To increase the green coverage area, the Govt. Has setup
social forestry projects on non-forest lands or on the public lands.Under
social forestry 3 steps were proposed:
(a) Farm Forestry: Farmers are encouraged to plant trees on their own
farms.For this purpose the state forest departments supply the seedlings to
the farmers and other people without any cost.
(b)Public wood lots: The government plant fast growing trees along road-
sides, canal banks and other such public lands for the needs of community.
(c)Community wood lots: Trees are planted by the communities

themselves as community lands to be shared equally by the villages.
Seedlings are supplied are supplied by forest department.
3. In order to improve utilization of forest resources, modern tools and

equipments for increased production are used increasingly.
4. Forest Department corporation have been setup in various states and

union territories.
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5. The government setup in 1981 an orgainsation known as “Forest

Survey of India” to assess and preiodically monitor the forest resources
of the country.
The forest policy,1952 had failed to stop the serious depletion of

forest wealth over the yeare. The government of india annouced its new
Forest Policy,in December,1988.
National Forest Policy,1988
The basic objectives that should govern the National Forest Policy,1988 are
the following:
(i) Conserving the natural heritage of the country by preserving the
remaining natural forests with the vast variety of flora and fauna
(ii)Checking the extension of sand-dunes in the desert areas of Rajasthan

and along the coastal tracts
(iii) Meeting the requirements of fuel-wood, fodder,minor forest produce

and small timber of the rural and tribal populations.
(iv) Increasing the productivity of forests to meet essential national needs
(v)Encouraging efficient utilization of forest produce and maximizing

substitution of wood
Conclusion
Thus we can say that forests are of the great importance to life and
prosperity of human beings. But there has been reduction in the forest cover
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throughout the world but it is more prevalent in the developing Asian

countries like India,Sri lanka and Mynamar, where population explosion and
industrialization is building the pressure.To overcome this problem our
judiciary has played pivotal role in conserving the forests.The Supreme
court and High courts while protecting environment and promoting
sustainable development have delivered many important judgements.Thus it
shows that judiciary has been live to protect and preserve the forests. At the
same time it has never been antithetical to the development. In fact whole
approach of the judiciary is in consonance with the sustainable development
and thus it must be appreciated.
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TRIPS AGREEMENT AND SALEABILITY OF MEDICINES

IN DEVELOPING COUNTRIES
Prashant Sinha*
Introduction
 Preview
This project is a case study about the seizure of medicines1 by the European
Countries under the European Union2 Border Measures Regulation No.
1383/2003 to show the impact it creates on Developing Countries.
Considering this, the focal point will be the efforts of EU to promote higher
IP protection and its enforcement within their respective territories but at the
expense of the interests of the developing nations to which EU Regulation
No. 1383/03 is very significant.
Firstly an introduction to Right to Health from the Human Rights

perspective will be done, and then its relation with access to medicines,
trade and health will be analysed. Further, with the help of case study of EU,
this research will analyse how the seizure of medicines causes Human
Rights violation. The concluding part will be the impact of all this on India
with some possible solutions they have.
 Right to Health: A Human Rights Perspective

The right of every human being to access the highest attainable standards of
health is now fully recognised by various national constitutions and
internationally binding treaties. The word ‗Health‘ is a Human Right now
and no more remains a mere blessing, As former Secretary-General of
United Nation‘s, Kofi Annan once said ―It is my aspiration that health
*Student, National Law Institute University, Bhopal

1
With ‗Medicines‘, authors here mean to ‗Generic Medicines‘.
2
Hereinafter (‗EU‘).
Legal Mirror 188
finally will be seen not as a blessing to be wished for, but as a human right
to be fought for.‖
1. International Perspective:
Unlike, other human rights, Right to health can be a positive right as society
bears an obligation towards general public to provide certain resources and
opportunities. The concept of Right to Health is enumerated in the
Constitution of WHO3 and in various other international treaties and
agreements like UDHR4, ICESCR5 and CRPD6.
As per the preamble of the WHO, Right to Health is defined as ―the

enjoyment of the highest attainable standard of health.‖ Moving further,
Article 25 (1)7 says that ―Everyone has the right to a standard of living
adequate for the health of himself and of his family, including food,
clothing, housing and medical care.‖ The International Covenant of
Economic, Social and Cultural Rights define Right to Health as ―steps taken
by State Parties to the Covenant to achieve full realization and it includes
prevention and treatment of diseases and creation of conditions which
would assure all medical service and attention during time of sickness.‖8
Further, Article 3, 23 and 24 of the Convention on Rights of Child, 1989
ensures necessary health care and medical assistant for all children. Lastly,
Article 259 states that ―persons with disability also have a right to
enjoyment of the highest attainable standard of health.‖ The range, quality
and standard of health care given to a disabled person should be equal to as
3
World Health Organization, 1946.
4
Universal Declaration of Human Rights, 1948.
5
International Covenant for Economic, Social and Cultural Rights, 1966.
6
Convention on the Rights of Persons with Disability, 2006.
7
Charter of United Nation Declaration of Human Rights (UDHR).
8
Article 12 of ICESCR, 1966.
9
Supra, Note 6.
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provided to a normal person. Hence the notion of Right to Health becomes

more significant now.
Though in a famous article ―The major infectious diseases in the world – To

treat or not to treat‖ it is discussed that the growing ―outcome gap‖ between
the population receiving the health intervention and those who do not.
Health is contended as a negative right in this article. It is clearly said that
the poor ones are not receiving the same treatment like the financially
wealthy,10 the reason being excessive cost of medicines and treatment which
cannot be afforded by many poor countries.
2. Indian Perspective:
The concept of Right to Health is not directly included as a Fundamental
Right under the Indian Constitution. On the other hand it imposes a duty
upon state to ensure the health of its fellow citizens under the Directive
Principle of State Policy.11 Later the Supreme Court brought the notion of
Right to Health under Article 21 as ―Right to Life also includes Right to
Health.‖12
Generic Medicines: a lookout
A generic medicine is a pharmaceutical product, usually intended to be

interchangeable with an innovator‘s product that is manufactured without a
licence from the innovator company and marketed after the expiry date of
the patent or other exclusive rights. Most new medicines are protected by
pharmaceutical patents, which give the patent holder exclusive control over
that medicine‘s supply for 20 years. When the patent term expires, the
10
Farmer, Paul; 2001; ―The major infectious diseases in the world – To treat or not to
treat?‖ N Engl J Med 345 (3); 208-210.
11
Article 38, 41, 42 & 47 of the Indian Constitution.
12
CESC Ltd. vs. Subhash Chandra Bose; AIR 1992 SC 573-585.
Legal Mirror 190
medicine becomes available for generic production by any company. The

resulting competition typically leads to dramatic reductions in price yet
access to generic medicines often depends on a country‘s ability to import
them. Generic medicines are marketed under a non-proprietary or approved
name rather than a proprietary or brand name.
„Access to Medicines‟ and health
Generic medicines are frequently as effective but much cheaper than,

brand-name drugs. Because of their low price, generic drugs are often the
only medicines that the poorest can access or afford.13 The characteristics
of low cost and affordability signify and ensure highest attainable
standard of health among poor. It is inconvenient for the poor to afford
the branded and patented medicines as it is much costlier than generic
one.
The role of generic medicines is significant in Developing Countries
(―DC‖). The DC or Least Developed Countries (―LDC‖) either do not
have any capacity to manufacture medicines by their own or do not
manufacture it in a large number to satisfy the need of everyone and thus
they import such medicines either from Developed Countries or from
other ‗DC‘ which have a large manufacturing market in medicines. Thus,
it shows that these medicines ensure the Right to Health more in DC, as
these countries have a higher need and tendency to import as compared
to Developed Ones.
In ‗Access to Medicines‘ movement, DC have succeeded in addressing
their concerns with the Agreement on Trade-Related Aspects of
Intellectual Property Rights (―TRIPS‖) in context of WTO. The Doha
13
http://www.who.int/trade/glossary/story034/en/.
Legal Mirror 191
Declaration14 also supports the right of countries to gain access to

medicines and recognize that ―the TRIPS Agreement does not and should
not prevent its members from taking measures to protect public
health‖.15
United Nations Millennium Development Goal (―UN MDG‖) states that
developed countries must provide access to medicines in developing
countries, in cooperation with pharmaceutical companies.16 On an
average, the proportion of people in DC with sustainable access to
affordable essential medicines has not improved since the UN began
tracking progress towards MDG 8 in 2007.17 Approximately one-third of
the people worldwide still lack access.18 In DC, essential medicines are
available at 42% of public facilities (approximately) and at 64% of
private facilities,19 at a cost of 270% and 630% higher than the
international reference prices respectively.20 Lives of an estimated 10
million people per year could be saved with existing medicines, but price
and limited access has been a significant barrier as it contributes to
illness and death in millions.21 Today more no. of DC is largely in need
14
World Trade Organization, Implementation of Paragraph 6 of the Doha Declaration on
the TRIPS Agreement and Public Health, WT/L/540 and Corr.1 (2003) (hereinafter
Paragraph 6 Implementation).
15
World Trade Organization, Declaration on the TRIPS Agreement and Public Health,
WT/MIN(01)/DEC/2, 41 I.L.M. 755 (2002) (hereinafter Doha Declaration).
16
Millennium Development Goals, UNITED NATIONS, available at:
http://www.un.org/millenniumgoals/ global.html (last visited Nov. 8, 2011).
17
MDG gap task force, Millennium Development Goal 8 the global partnership for
development at a critical juncture, 57 (2010) (hereinafter MDG gap task force).
18
World Health Org. & Hai Global, measuring medicine prices, availability, affordability
and price components, 1 (2d ed. 2008) (hereinafterworld health org. & hai global)
19
MDG GAP TASK FORCE, supra note 17.
20
Anne Bozik, Essential Medicines: The Crisis in Developing Countries, YALE J. MED. &
L., Spring 2011, at 13, available at: http://www.yalemedlaw.com/issues/vol7-issue2.pdf
21
WORLD HEALTH ORG. & HAI GLOBAL, supra note 18.
Legal Mirror 192
and depends upon these medicines and if there is less supply and access,
it will directly affect the health factor of human beings in these countries.
 „Access to Medicines‟ and trade
The concept of Right to Health also depends upon the trade of medicines.
When the goods are under shipment certain things need to be assured.
The ‗patentability‘ is an important aspect of it. Earlier Patent was not
applied in cases of medicines but now pharmaceutical product is also
brought under it and it is compulsory that these goods should be
patented. As held in many cases, if these goods are found non-patented
or infringing the provisions of a lawful trade then there are chances that
they can be seized or confiscated by other countries at their ports and
may not be allowed to shipped further. When the goods are seized it
affects those countries which are in direct need of it. Thus it causes
disturbance in ‗access to medicine‘ and affects the notion of Right to
Health which is indirectly related to trade. The detailed study upon this is
shown in later part of this project.
 Trade and TRIPS: A relation
The trade of goods is highly depended upon TRIPS provisions and thus it is
closely related with it. A wide range of IP protections impact prices of
medicines in different ways but here the authors are only focusing on the
patent protections and its enforcement in international realm.
The TRIPS agreement came into force in the year 1994. It establishes
minimum standards for copyright, trademark, patent and other IP rights;
creates an enforcement mechanism and sets out binding dispute settlement
procedure (―DSP‖). Almost all the developing countries had to enact or
amend their existing IP laws to meet with the TRIPS provisions, including
grant of patents for 20 years from the inventor‘s filing date of any product
(herein medicines). It provides flexibilities to countries to implement it as
Legal Mirror 193
per their ―own legal system and practices‖. It also provides assurance that
DC would not be targeted for using TRIPS flexibilities to protect public
health. Another flexibility is related to access to medicines and public health
which includes the ability for each country to determine whether the
exhaustion of IPR is national/regional or international,22 to determine the
scope of patentability and specific limited exclusions,23 and the scope of
enforcement measures.24
Why goods seized ?: A case study of EU:- This part is a case study of EU
in seizure of generic medicines. Firstly,the factual situation and grounds
taken by India and EU in consultation process will be addressed. After that
important legal provisions will be assessed along with EU Regulation No.
1383/2003.
 Factual Situation
Between 2008 and 2009, Dutch authorities confiscated several shipments of
generic drugs bound for various developing countries in South America and
Africa. Most of the drugs were produced in India, and were seized on
suspicion of patent and trademark infringement. India claims that between
2008 and 2009 at least 19 consignments of generic drugs were seized by
custom authorities in The Netherlands. The shipments contained generic
versions of drugs originally developed by large pharmaceutical companies,
such as Pfizer and Novartis, who still held patent rights in the European
Union.
22
Article 6, Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15,
1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, Legal
Instruments–Results of the Uruguay Round, 33 I.L.M. 1197 (1994) (hereinafter TRIPS
Agreement).
23
Id, Article 27.
24
Id, Part III.
Legal Mirror 194
There have been several incidents of drug seizures pursuant to EC

regulation 1383/2003, but two in particular have earned global media
attention. The first was a shipment of generic AIDS medicine produced in
India and on its way to Nigeria. As it passed through an airport in
Amsterdam in 2009, the shipment was confiscated by Dutch authorities on
suspicion of trademark infringement. The second incident involved a large
shipment from India to Brazil of the hypertension drug losartan potassium.
Dutch authorities seized the 500-kilogram shipment in December 2008 and
after a 36-day delay it was sent back to India.
1. Requests for Consultation by India

In 2009, India contended before the Council for TRIPS that the Dutch
seizures violated the TRIPS agreement. In the year 2010 India further
requested for consultation with the EU.25 They had alleged that following
laws and regulations were violated:
i) Article V and X of GATT;

ii) Articles 28, 41, 50, 51, 52 and 55 of TRIPS Agreement.
India further alleged that the EC had violated the agreement not by failing to
apply adequate standards, but exceeding what TRIPS said. They have
enforced IP rights too strictly, especially in cases of generic medicines in
transit, patented under EU. India mainly grounded their claim on ‗Freedom
of Transit‘26 and ‗publication and administrative regulation‘.27 Another
claim was that stricter border regulation was inconsistent with TRIPS
(Article 1.1) and creates barriers to legitimate trade (Article 41). On the
other hand EU defended it by saying that the medicines trans-shipped by
25
Request for Consultations by India, European Union and a Member State – Seizure of
Generic Drugs in Transit, WT/DS408/1 (May 19, 2010) (hereinafter India‘s Request for
Consultations).
26
GATT, Article V.
27
GATT, Article X.
Legal Mirror 195
India were under-patent in their countries and were not in accordance with
IP Rights.
 Legal provisions and assessment

All the relevant legal provisions related with this case can be found in
GATT and TRIPS agreement. The relevant Articles under TRIPS are 28, 41,
50 in Section 3, 51 (Suspension of release by custom authorities), 52
(Application) and 55 (Duration of Suspension) under Section 4. The
relevant Articles under GATT are Article V (freedom of transit) and Article
X.
Basically there are two major issues where everything revolves around; one
is whether the border measure provisions do ―not contravene‖ TRIPS
Article 51 & 52 and secondly, whether the regulation creates a barrier on
―legitimate‖ trade of generic medicines.
1. TRIPS Article 28
Article 28 deals with rights conferred under patent and define the scope of
protection of IP rights. It confers certain rights on right holder with regard to
patentability of a product (medicines). The right conferred can be applied
only in case of production and import of medicines and not during transit of
goods.
2. TRIPS Article 51 & 52

Article 51 contains the relevant minimum standards and requirement of IP
protection through border measure and Article 52 sets forth conditions of
action based on it.
Article 51 deals with “Suspension of Release by Customs Authorities”

and requires members to enable right holders to request customs authorities
to suspend from release imported ―counterfeit trademark or pirated
Legal Mirror 196
copyright goods‖ but does not impose the same obligations with regard to
goods for export or in-transit goods. It does allow for the creation of similar
measures for infringements of intellectual property rights, such as patents,
as long as they meet the other requirements of the article. Here, state is not
obliged but can provide such right to the patent holder on transit goods as
the word used here is ‗may‘.
As per Article 52 burden of proof is upon the patent holder. Key to the
review is whether the ―country of importation‖ is only that of the goods‘
final destination, or if it includes the countries of transit. If it is the former,
then it would be much more difficult to find the European measure
consistent. There is a strong argument to support it, based on distinct uses of
―transit‖ and ―importation‖ throughout in TRIPS, as well as in GATT
Article V, that the ―country of import‖ does not include trans-shipment
countries.Conclusion drawn is that the detainment and seizure of goods
based on the request of a right holder in a European transit country would
not fall within Article 52 and hence can be considered as violation of this
article.
3. TRIPS Article 41
Under Article 41 there are some general obligations of members regarding
enforcement of TRIPS provisions. It also focuses that such obligations do
not cause barriers to legitimate trade of medicines. The burden to proof of
legitimacy is on the country who is filing the matter. The ―legitimate
interests‖ can be defined ―as a normative claim calling for protection of
interests that are ―justifiable‖ in the sense that they are supported by
relevant public policies or other social norms‖.
Legal Mirror 197
4. TRIPS Article 50
This is a complementary to Article 51, as if the patent holder fails to file an
application under Art. 51 even then he can file it under this Article. This
Article comes to existence when the goods are custom clear and into the
channel of commerce. But in the above factual situations the shipment of
medicines had never reached the channel of commerce and hence the
authors believe that the EU had invoked this article.
5. TRIPS Article 55
This article states that the maximum suspension period of goods can be 10
days and in necessary circumstances it can be further increased for 10 more
days. It starts when the applicant has been served with the notice of
suspension. But in the above cases medicines had been detained or seized
for around 36 or more days after serving the notice to the applicant hence it
is a genuine belief of the authors that EU has also violated this provision.
6. GATT Article V
Paragraph 2 of this article suggests that there should be a freedom of transit
between the WTO members. In this case both India and EC are members or
parties to the WTO thus it applies to them. Further Paragraph 3 says that,
there should not be any unnecessary delay or restrictions until a country
fails custom law and regulation.
The main question that arises here is whether right to freedom of transit of
India is violated under this article and whether there is unreasonable delay
of 36 days and more?
As per the understanding after analysis, the applicable law in the above
situation is EU Regulation No. 1383/2003 which is inconsistent with TRIPS
Agreement and can be considered as a violation of GATT provision as it
causes an unreasonable restriction of 36 days to the generic medicines.
Legal Mirror 198
 EU Regulation No. 1383/2003

Since 1986 custom regulations have been held by EC to move to higher
levels of enforcement of IP rights. With the enactment of EU Regulation
No. 1383/2003 (―EU Regulation‖) this is further increased.28 This regulation
requires that countries should extend border measures to goods in transit
(When exported by a country outside EU and destined to a country outside
EU). It has increased the scope of infringement which includes suspected
violation of IP rights other than patent and copyrights. This allows custom
agents to either detain goods or if necessary destroy them. 29 Article 9 (1) of
this regulation provides custom authorities with right to seize goods if it is
suspected to be violating IP rights. As per Article 13 again the duration of
suspension is maximum 20 days.
 Seizure of medicines: Human Rights violation?

With reference to the above factual situation and legal assessments, the
analysis concludes that seizure of medicines is an indirect violation of
human rights i.e. Right to Health. In the above cases generic medicines had
been detained by the EC under mere suspicion of IP rights, whereas later it
was found that these necessary medicines were wrongfully detained by EC
causing violation of the Articles 50, 52 and 55 in TRIPS and Article V of
GATT. Even if the medicines were rightly detained in some cases, the
period of detention was more than specified. Further, either they destroyed
the medicines or returned them back to the originating country (i.e. India).
All the DC countries that were in necessary need of such medicines could
not get access to it and this causes illnesses and deaths of thousands of
people.Also,the EC has not obliged with the flexibilities given under TRIPS
28
Xavier Seuba, Free Trade of Pharmaceutical Products: The Limits of Intellectual
Property Enforcement at the Border 4 (INT‘L CTR. FOR TRADE & SUSTAINABLE
DEV., Issue Paper No. 27, 2010) (hereinafter Seuba).
29
Id. At 4-5.
Legal Mirror 199
for necessary products like medicines. As per the TRIPS Agreement

flexibility is given to member states to ensure the highest standard of public
health. As these medicines were seized it caused a delay in the shipment to
these countries and thus affected health among poor in countries with less
affording capacity who are in urgent need for such medicines.
Impact On India
Widely known as ―the pharmacy of the developing world,‖ India exports

67% of its drugs production to developing countries that either cannot
produce any drugs or whose production is not enough to meet local needs.
Even for large countries with a strong and established generic industry,
importation channels are essential in making these drugs available. This
makes the supply of generic drugs vulnerable to new ―border measures‖.
The seizure of generic medicines by EC under EU Regulation No.

1383/2003 creates a big impact on India. As India is the largest exporter of
these medicines, if these goods are found under patent they are seized by
customs authorities. The problem with these regulations like Anti-
Counterfeit Trade Agreement (ACTA), TRIPS-Plus measure or EU
Regulation No. 1383/2003 is that they favour conditions of developed
countries only and are not flexible for the Developing Countries like India
or Brazil. The seizure of medicines thus demotivates the large
pharmaceutical sector which affects the trade and economy of the country. It
makes an impact as the expectation of other DC further increases.
Possible Solutions
The only possible solutions DC have to tackle this problem is recourse to

WTO dispute settlement.Also,they can constantly consult the EC and make
Legal Mirror 200
a common consent to bring needful changes in Laws and Regulations which

can be favourable to both DC and Developed ones.
 Compulsory Licensing
The ―Doha Declaration on TRIPS Agreement and public health‖ and the
―decision of General Council of 30 August 2003 concerning the
implementation of Para 6 of the Doha Declaration on the TRIPS agreement
and public health‖ deal with the concept of ―Compulsory Licensing‖ which
was established under Article 31 of TRIPS.
Compulsory Licensing (CL) simply means a License issued for the

manufacturing of a patented product which is granted with the
consent/authorization of a right holder. Such license is granted within a
―reasonable period of time‖, but such time may be evoked in national
emergency or extreme urgency situation. When the license is granted, an
adequate remuneration is paid to the patent holder. The authorization of CL
is mainly for the supply in domestic market which later becomes a
limitation of it. The Declaration states that ―each member has a right to
grant CL and also to determine the grounds for it‖.
To deal with the above limitation ―decision of General Council on 30

August 2003 concerning the implementation of Para 6 of the Doha
Declaration on the TRIPS agreement and public health‖ was issued which
made access of CL beyond the domestic market but with certain
requirements.
Conclusion
The challenge today is border enforcement of European patents against

pharmaceutical compounds in trans-shipment from India to other
developing countries. This practice sticks on various legal grounds, and is
Legal Mirror 201
being challenged through the WTO dispute resolution process. Bringing a

human rights perspective to bear on the issue, however, will require
innovative advocacy beyond the limits of the World Trade Organization.
The arbitrariness that developed countries have in bringing international
regulations in their favour has to be curbed to establish standard trade
practices between developed and developing countries to facilitate access of
essential medicines to all and reach the pivotal objective of Right to Health.
Legal Mirror 202
RIGHT-BASED APPROACH TO ENVIRONMENT

PROTECTION IN INDIA
Abhishek Kumar*
1. Introduction
The ‗Anthropocentric approach‘ followed by the human being
exploited natural resources in an indiscriminate manner to fullfil their
whims and fancies leaving the rest creatures in lurch. Several writings,
which prove that in ancient India, every individual had to practice the
dharma to protect and worship nature1. A close look at the environmental
ethics of olden times contained in Vedas, Upnishads, Smritis, and Puranas
discloses environmental harmony and conservation; since sun, air, water and
earth were considered as manifestations of divine personification2. The
central point of these all texts is that man is not the owner of this earth only
but other creatures are also equally entitled for the use of all natural
resources.
The rapid industrialization and economic activities after the
independence damaged the environment to a great extent and that
subsequently resulted into serious human rights violation. In the 1970s, the
Indian Parliament started taking an active interest in formulating policies
and regulations to protect the environment. Mrs. Indira Gandhi, the then
Prime Minister of India attending the UN Conference on Human
Environement, 1972 at Stockholmin, Sweden proved to be a turning point
for the environment protection in India. In 1976, provisions relating to the
environment were inserted into the Constitution that imposed greater
*Abhishek Kumar (abhishekcnlu6@gmail.com) is an independent researcher.

1
C.M.Jariwala, Changing Dimensions of Indian Environmental Law‘, in P.Leelakrishnan
(eds.), Law and Environment, 2 (1992).
2
S.C.Shastri, Environmental Law 12 (Eastern Book Company, Lucknow, 3rd edn. 2008).
Legal Mirror 203
responsibilities on both the state and citizens to protect the environment.3

Considering the importance of the environment, the government of
India established a full-fledged Ministry of Environment and Forest in 1985
to address the problem of pollution in the country from the Department of
Environment which had been established in 1980. Thus, the ministry has
now the responsibility to plan, execute, and monitor environmental
programs. The ministry is also the nodal agency in the country for the
United Nations Environmental Programme (UNEP). The ministry works
towards conservation and survey of flora, fauna, forests and wildlife,
prevention and control of pollution, afforestation and regeneration of
degraded areas and protection of the environment in the framework of
legislators.4
In India, for an umbrella legislations like: The Environment
Protection Act, 1986 (EPA), the credit must be given to Mrs. Indira
Gandhi‘s commitments made in 1972 at the Stockholm Conference to
improve the environment. Marching side by side of the Indian legislature,
the Indian judiciary understanding the urgency of the matter, started
accepting environmental cases through the innovative tool of Public Interest
Litigation (PIL) considering the fact that the effects of environment
degradation are manifold on a large mass and its worst suffers are the poor
of the country. Thus, the courts also set a new trends in the legal arena and
reposed the faith of the people by addressing the problems urgently.
Professor Upendra Baxi, who has often supported the judicial
activism in India, has said that the ―Supreme Court of India‖ has often
3
Armin Rosencranz and Michael Jackson, ‗The Delhi Pollution Case: The Supreme Court
of India and the Limits of Judicial Power‘, Clean Air Initiative, available
at:http://www.cleanairnet.org/caiasia/1412/ article-69423.html. (Last visited on December
12, 2015)
4
MoEF, India, ‗Introduction‘, available at:http://envfor.nic.in/welcome.html. (Last visited
on December 12, 2015)
Legal Mirror 204
become ―Supreme Court for Indians‖.5 Its liberal interpretations elevated

the right to live in a decent environment under the ambit of Article 21 of the
constitution to realize the basic standards of life like accessing pure water
and air etc. If anything endangers or impairs that quality of life in
derogation of laws, a citizen has the right to have recourse to Article 32 of
the Constitution.6 Thus, the rights to a healthy environment, to clean air and
to clean water have been given the status of fundamental rights through
judicial interpretation.
2. Constitutional Mandates
Looking closely at the Constitution of India, it appears that the
constitutional framers at the time of framing it, they did not think of the
present day‘s scenario of environmental degradation. The responsibility to
maintain the environment was left on the shoulder of the legislators
according to the need. It was only in 1976 when the 42nd Constitutional
Amendment inserted some provisions relating to environmental protection
without guaranteeing the right to a healthy environment as a fundamental
right. Aftermath the Stockholm Declaration, 1972 now, India has seen a
paradigm shift in the arena of environmental legislation. The major
legislation, in this regard, can be mentioned like Environment Protection
Act, 1986. The right to a clean and healthy environment has been
interpreted by the Indian judiciary to be a part of the right to life as
guaranteed by Article 21 of the constitution.7 The Directive Principles of
State Policy require the state to ensure that the health of citizens is protected
and improved and that effort are made to ‗protect and improve the
5
Upendra Baxi, ‗The Avatars of Indian Judicial Activitism: Explorations in the Geography
of (In) justice', in S.K. Verma and Kusum (eds.), Fifty Years of the Supreme Court of India:
It's Grasp and Reach 157 (Delhi, Oxford University Press, 2000).
6
Subhash Kumar v. State of Bihar, (1991) 1 SCC 598
7
Bandhua Mukti Morcha v. Union of India, AIR 1982 SC 802
Legal Mirror 205
environment and to safeguard the forests and wildlife of the country‘.8 Apart
from imposing obligations on the state, the citizens also have a
constitutional duty of protection and improvement of the natural
environment, including forests, lakes, rivers and wildlife.9
2.1 Fundamental Rights
The constitution of India, under its Part III has conferred certain
fundamental rights, out of which some are available only to its citizens
whereas some of them are available to all persons. The six fundamental
rights of Indian citizens are specified in Articles 14-32 of the Indian
Constitution such as right to equality (Articles 14-18), right to freedom
(Articles 19-22), right against exploitation (Articles 23-24), right to freedom
of religion (Articles 25-28), cultural and educational rights (Articles 29- 31)
and right to Constitutional remedies (Article 32).
Article 21 is one of the most comprehensive articles of the constitution
which reads as: ―No person shall be deprived of his life or personal liberty
except according to the procedure established by law‖. The Indian judiciary
has interpreted the terms used in the very article i.e. ‗life‘ and ‗personal
liberty‘ in wider sense to fulfill the constitutional mandate. Gradually, the
ambit of the said right increased unexpectedly and even to such an extent
that even environmental concerns have been given due place under its
scope. The Supreme Court has also recognized the right to the wholesome
environment within the meaning of ‗life‘ under Article 21 of the
constitution.
In Attakoya Thangal v. Union of India10, the Kerala High Court in a
public interest litigation filed by local islanders seeking to protect fresh
water resources on the Lakshadweep Islands. The petitioners apprehended
8
Article 39(e), 47 and 48A of the Indian Constitution.
9
Article 51(1) (g) of the Indian Constitution.
10
1990(1) KLT 580
Legal Mirror 206
that the government scheme to pump out groundwater on the island would
cause saline intrusions in the fresh water table which would, in turn, imperil
the potable water supply on the islands. The Kerala High Court
commissioned an expert report which opposed the government scheme.
Recognizing the importance of fresh water to the islanders and holding that
the right to fresh water was an aspect of the fundamental right to life, the
High Court prohibited the government from implementing the scheme until
it was reviewed and modified by the Union Ministry of Environment and
the Ministry of Science and Technology.
In Rural Litigation and Entitlement Kendra Dehradun v. State of Uttar

Pradesh11, the Supreme Court ordered for the closure of some of these
quarries on the ground that these were disturbing the ecological balance and
thereby violating the right to life under Article 21 of the local inhabitants.
The first indication of the right to a wholesome environment may be traced
in this case. In Subhash Kumar v. State of Bihar12 the apex court holds the
view that the PIL is maintainable for ensuring enjoyment of pollution free
water and air, which is included in the right to live under Article 21 of the
constitution.
In T.Damodhar Rao v. S.O.Municipal Corporation, Hyderabad13 the

Andhra Pradesh High Court made it very clear that the unbridled right of the
owner to enjoy his piece of land is not absolute- may the state be the owner
of the piece of land. This right of ownership is subject to the law of ecology
and the environment. Any construction for residential purpose on the land
allotted for a recreational park would upset the environmental balance of the
area. Though the residential houses were constructed by the Income Tax
Department, but it is the constitutional duty of the state to protect and
11
(1985) 2 SCC 431
12
AIR 1991 SC 420
13
AIR 1987 AP 171
Legal Mirror 207
improve the environment and not to cause environmental imbalance. Article

21 of the constitution embraces the protection and preservation of nature‘s
gift without which life cannot be enjoyed. Further, in Andhra Pradesh
Pollution Control Board v. Prof. M.V.Naidu14. It has held that the clean
environment is not only a fundamental right but a human right also.
2.2 Directive Principles of State Policy
The Chapter IV of the constitution of India contains Directive Principles

of State Policy. Article 36 to Article 51 deals with the Directive Principles
of State Policy. Some of them specifically deal with the various facets of
human health and the environment.
The following are some of the Directive Principles related to the

environment:
A. Article 47: ―The state shall regard the raising of the level of
nutrition and standard of living of its people and the improvement of
public health as among its primary duties---.‖
B. Article 48-A: ―The state shall endeavor to protect and improve the
environment and to safeguard the forests and wildlife of the
country.‖
Directive Principles of the State Policy contained in Part IV of the

constitution are not enforceable in nature as they are directives given to the
states while formulating its policies to meet varied challenges. On many
occasions, the apex court recognizing the importance of both DPSP and
fundamental rights has clearly underlined that DPSP and fundamental rights
are neither superior nor inferior to each other but they are of equal
importance at their respective place.
14
AIR 1999 SC 434
Legal Mirror 208
In Keshavananda Bharati v. State of Kerala15 the Supreme Court holds

the view that the fundamental rights and directive principles aim at the same
goal of bringing about a social revolution and the establishment of a welfare
state and then can be interpreted and applied together. They are
supplementary and complementary to each other. It can be said that
directive principles prescribed the goal to be attained and the fundamental
rights lay down the means by which that goal is to be achieved.
2.3 Fundamental Duties
The government of India added fundamental duties to be observed by its

every citizen to the Part IV of the constitution in 1976. The Article 51-A (g)
of the constitution casts a special responsibility on every citizen to protect
and improve the natural environment.
Article 51-A (g): ―It shall be the duty of every citizen of India to protect and
improve the natural environment including forests, Lakes, rivers and
wildlife and to have compassion for living creatures.‖
In M.C.Mehta v. Union of India16, the Supreme Court realizing the

urgency and importance of protection and improvement of the environment
directed the authorities to take urgent steps to tackle the acute problem of
vehicular problem in Delhi. The court was distressed at the apathy of State
administration when according to the white paper published by the
government of India, the vehicular pollution contributed 70 % of the air
pollution as compared to 20% in 1970.
In Sachidananda Pandey v. State of West Bengal17, Justice Chinnappa

Reddy of the Supreme Court holds the view that whenever a problem of
ecology is brought before the court, the court is bound to bear in mind the
15
AIR 1973 SC 1461
16
(1998) 6 SCC 60
17
(1987) 2 SCC 295
Legal Mirror 209
Articles 48-A of the constitution--and 51-A (g) which proclaims that it is the
fundamental duty of every citizen of India ‗to protect and improve the
natural environment including forests, lakes rivers and wildlife and to have
compassion for living creatures‘. When the court is called upon to give
effect to the Directive Principles and Fundamental Duties, the court is not to
shrug its shoulders and say that priorities are a matter of policy and so it is a
matter for the policy making authority.
3. Role of Indian Judiciary
With the passage of time, environmental pollution has reached to an

alarming level. As the environment is the very basic element of human
survival, therefore its protection has withdrawn not only national attention
but international attention too. Over a period of time, it has been observed
that the courts have interpreted the laws in order to meet the constitutional
objectives i.e. socio-economic justice. The socio-economic justice is
gradually being realized through the interpretations of the court to go a step
further. Judicial Activism, in this regard, can be seen as an important tool to
fulfill the objectives. Two great legal luminaries namely ―Justice
P.N.Bhagwati‖ and ―V.R.Krishna Iyer‖ applying their foresighted vision
applied the most effective tool of PIL in the form of judicial activism to
access justice even to the deprived and indigent section of the society. In
this regard, the statement of Justice Lodha is worth mentioning here as he
rightly says- ―Judiciary exists for the people and not for vice-versa.‖
If all or any of the fundamental rights is infringed by a state action

then the citizen or the person as the case may be may approach the Supreme
Court under Article 32 or the High Courts under Article 226 having
territorial jurisdiction in order to get their redressal. The Supreme Court and
the High Courts can issue any order, direction, or writs including the writs
in the nature of Habeas Corpus, Mandamus, Prohibition, Certiorari and Quo
Legal Mirror 210
Warranto. It is very interesting to note that Article 32 itself is a fundamental

right and the courts has no power to refuse in its direction to grant
appropriate remedy if the violation of any fundamental right is proved.
The idea of the Social Interest Litigation or Public Interest Litigation

came from ‗action popularis‘ of the Roman Jurisprudence which allowed
court access to every citizen in matters of public wrongs. The Supreme
Court by relaxing the process of ‗Locus Standi‘18 allowed PIL19 to enable
the poor, downtrodden, under-privileged, and ignorant to be heard. In the
Mumbai Kamgar Sabha, Bombay v. Abdulbhai Faizullabhai and Ors.20 the
Supreme Court of India made conscious efforts to improve the judicial
access for the masses by relaxing the traditional rule of ―Locus Standi‖.
Talking in respect of environmental matters, PIL has played a vital

role in nourish the pillar of environmental law in India. A large number of
environmental problems were brought before the courts through PIL and the
courts have considered them on an urgent basis to ensure justice. This idea
is evident in the case of Ramsharan Autyanuprasi and Anr. v. Union of
India and Ors.21 where the Court observed that the public interest litigation
is for making basic human rights meaningful to the deprived and vulnerable
sections of the community and to assure them social, economic and political
justice.
18
According to the ‗Locus Standi‘ rule, only those persons can approach the court for their
remedies, whose rights have been infringed. Any petitioner having no ‗Locus Standi‘
cannot be herd in a court of law.
19
According to the concept of PIL, any public spirited person or an organization can
approach to the courts seeking remedies on behalf of the people who cannot approach to the
courts because of their social, educational and economical situations.
20
AIR 1976 SC 1455
21
AIR 1989 SC 549
Legal Mirror 211
It has been found from Indian Supreme Court Case reports that out
of 104 environmental cases22 from 1980-2000 in the Supreme Court of
India, 54 were filed by individuals who were not directly the affected parties
and 28 were filed by NGOs on behalf of the affected parties. This is suffice
to signify that through PIL attempts were made to access to justice having
large mass effect. In one case concerning massive pollution of the river
Ganga, the Court has published notices in the newspaper drawing the
litigation to the attention of all the concerned industries and municipal
authorities inviting them to enter an appearance.23
However, there are some people who do not like activism by saying
that it has usurped the function of administrative and legislative bodies.
Indeed, some critics of the Supreme Court describe the Court as the ‗Lords
of Green Bench‘ or ‗Garbage Supervisor‘.24 International legal experts have
been unequivocally terming the Indian Courts of law as pioneer, both in
terms of laying down new principles of law and also in the application of
innovative methods in the environmental justice delivery system.25
The reasons for the increasing concern of Court in governance arena

are varied and complex but one major factor has been the failure of
implementing agencies to discharge their Constitutional and Statutory
duties. This has prompted civil society groups and the people to approach
the Courts, particularly the Supreme Court, for suitable remedies.
22
Cited in Geetanjoy Sahu, ―Implications of Indian Supreme Court‘s Innovations for
Environmental Jurisprudence‖, 4/1 Law, Environment and Development Journal 1 (2008),
available at http://www .lead-journal.org/content/08001.pdf
23
M.C. Mehta v. Union of India, AIR 1988 SC 1037
24
S.S. Prakash and P.V.N. Sarma, ‗Environment Protection vis-a-vis Judicial Activism‘, 2
Supreme Court Journal 56 (1998).
25
Supra n. 23
Legal Mirror 212
Interestingly, the Court has also responded in a pro-active manner to address

different governance problems.26
Unlike other litigations, the frequency and different types of
orders/directions passed periodically by the Supreme Court in
environmental litigation and its continuous engagement with environmental
issues has evolved a series of innovative methods27 in environmental
jurisprudence. A number of distinct innovative methods are identifiable,
each of which is novel and in some cases, contrary to the traditional
legalistic understanding of the judicial function.
It is pertinent to note that these judicial innovations have become
part of the larger Indian jurisprudence ever since the Court has started
intervening in the affairs of executive in the post emergency period.28 The
innovative methods like: ―Suo Moto‖ action, widening the scope of
constitutional provisions, application of international environmental law in
the national jurisdiction to find a suitable solution, appointment of expert
committees, spot visits, and appointment of ‗amicus curiae‘ initiated in
resolving environmental litigation, however, have been almost entirely
dominating the environmental jurisprudence process for more than the last
twenty years. The most important procedural innovation for environmental
jurisprudence has been the relaxation of traditional process of standing in
the Court and introducing the concept of Public Interest Litigation (PIL).29
26
Upendra Baxi, ―Writing about impunity and environment: the silver jubilee of the Bhopal
catastrophe‖, 1, Journal of Human Rights and Environment, 23-24 (2010).
27
M. K. Ramesh, ‗Environmental Justice: Courts and Beyond‘, 3(1) IJEL 20 (2002).
28
Gobind Das, ‗The Supreme Court: An Overview‘, in B.N. Kripal et al. (eds), Supreme But
Not Infallible (NewDelhi: Oxford University Press, 2001).
29
In the Indian context, some of the legal scholars prefer the expression ‗Social Action
Litigation‘ to ‗Public Interest Litigation‘, as this tool for justice to protect basic rights of
individuals and communities has, through innovations of higher Court in India, for greater
positive impacts on the social lives of the people in India than the United States, where the
PIL movement took roots.
Legal Mirror 213
In M.C. Mehta v. Union of India30, a cluster of tanneries at Jajmau in

Kanpur were discharging their untreated effluents into the river Ganga. As a
result of this, the water of the river Ganga became highly toxic and unfit for
any use. The court ordered for the closure of the industries till they installed
primary treatment plants to treat the toxic effluents and continue as long as
the primary treatment plants were in a sound working order. ―Justice
Kuldeep Singh‖, who is also referred as the ―Green Judge‖, declared in
unequivocal terms that the closure of industries (tanneries) may bring
unemployment and loss of revenue to the state, but life, health and ecology
have greater importance for the people.
In M.C.Mehta v. Union of India31, in this case the Supreme Court

gave several directions upon the written petition filed by Mr. M.C.Mehta to
save the Taj Mahal from yellowing and decaying due to exhausts of
chemical and gases from different chemical fertilizers and foundries and
also the Mathura Refinery. The court directed the industries to shift away
from Taj Trapezium or to switch over to gas as fuel. Industries were to be
closed down unconditionally by Dec. 31st 1997.
In Municipal Council, Ratlam v. Vardichand32, the court holds the

view that where there exists a public nuisance in a locality due to open
drains and heap of dirt, the Magistrate can require the Municipality under
Section (133) CrPC to abate the nuisance. A citizen can always bank upon
Section 133 of the CrPC for the removal of the nuisance of pollution. It is of
greater significance in view of the fact that the Water Act and the Air Act do
not provide for the affected parties a right to prosecute violators of the
provisions. Another significant point is that corporate bodies like companies
and corporations can also be held responsible for pollution nuisance under
30
(1987) 4 SCC 463
31
AIR 1997 SC 734
32
(1980) 4 SCC 162
Legal Mirror 214
these provisions. The court observed that whenever there is a public

nuisance, the presence of Section 133 CrPC must be felt and in any contrary
opinion is contrary to the law.
4. Key Environmental Principles
In absence of a concrete base of environmental law provisions, some

of the visionary judges like ―Justice V.R. Krishana Iyer‖ and ―Justice
Bhagwati‖ delve into international instruments and accordingly applied the
the provisons taken therefrom to mitigate the emerging issues of
environmental law in the country. Though Article 253 of the constitution
enables the parliament to make any law for the whole or any part of India
for implementing any treaty, agreement or convention but due to the sloth
legislative process, it was quite difficult for them to wait for a sufficient
legislation to deal with the emerging issues. The judiciary has used specific
environmental principles upon the interpretation of the Indian statutes and
the existing international documents.
The ―Inter-Generational Equity principle‖ talks of the point that the

benefit of natural resources should be enjoyed by all the people belonging to
the present generation and the future generation as well. The over-used of
natural resources by one generation may cause a suffrage for the other
generation. Principles 1 and 2 of the 1972 Stockholm Declaration refer to
this concept. Principle 1 states that ―Man bears solemn responsibility to
protect and improve the environment for the present and future
generations‖. Principle 2 states that ―the national resources of the Earth
must be safeguarded for the benefit of the present and future generations
through careful planning or management, as appropriate‖. Principle 3 of
the Rio Declaration, 1992 also states that ―the right to development must be
fulfilled so as to equitably meet developmental and environmental needs of
present and future generations‖.
Legal Mirror 215
In the case State of Himachal Pradesh v. Ganesh Wood Products33,

the Supreme Court invalidated forest-based industry, recognizing the
principle of inter-generational equity as the central to the conservation of
forest resources and sustainable development. The court also noted in Indian
Council for Enviro-Legal Action v. Union of India34, that the principle
would be violated if there were substantial adverse ecological effect caused
by an industry.
The ―Precautionary Principle‖ emphasised by the United Nations
Commission on Environment and Development (UNCED), held in Rio de
Janeiro in the year 1992, signifies a preventive approach. It states that in
order to protect the environment, the precautionary approach shall be widely
applied by states according to their capabilities. Where there are threats of
serious or irreversible damage, lack of full scientific certainty shall not be
used as a reason for postponing cost effective measures to prevent
environmental degradation. The Precautionary Principle is threefold. Firstly,
it requires the government and other authorities to foresee, prevent and
arrest causes of environmental degradation. Secondly, where the threat is
evident, a lack of scientific proof or certainty should not become the reason
for the state not to take action to prevent any damage to the environment.
Lastly, it is the responsibility of the industry or corporation or developer to
prove that action taken is not harmful to the environment.
The ―Polluter Pays‘ Principle‖ of international environmental law

means that polluters have to be responsible for the consequences of the
pollution and damage caused by them. They must control and remedy the
cause of such pollution, pay compensation for the damages caused,
including costs for restoration of the environment, rather than forcing other
states or future generations to bear such costs. This has also been adopted by
33
AIR 1996 SC 149
34
(1996) 5 SCC 281
Legal Mirror 216
the Indian Supreme Court as a rule of law that must be applied to polluters
within India. The polluter is responsible for compensating and repairing the
damage caused by his omission. This is the quintessence of the ‗Polluter
Pays Principle‘. In MC Mehta v. Kamal Nath35, the apex court issued a
direction to restore the environment and ecology when the court found that
the flow of the river was diverted for eco-tourism.
The ―Principle of Absolute Liability‖ means that once the activity

carried on is hazardous or inherently dangerous, the person carrying on such
activity is liable to make good the loss caused to any other person by his
activity irrespective of the fact whether he took reasonable care while
carrying on his activity. The rule is premised upon the very nature of the
activity carried on.36 Thus, those industries that cause pollution and
ecological damage are absolutely liable to compensate for the harm caused
by them to villagers in the affected area, to the soil, and to the underground
water and hence, they are bound to take all necessary measures to remove
sludge and other pollutants lying in the affected areas. The Supreme Court
has interpreted the principle of polluter pays to mean that the absolute
liability for damage caused to the environment extends not only to
compensate the victims of pollution but also to the cost of restoring the
environment.
In formulating absolute liability, the apex court held that the

compensation should be commensurate with the magnitude and capacity of
the polluting industry.37 The Supreme Court formulated the doctrine of
absolute liability for harm caused by hazardous and inherently dangerous
industry by interpreting the scope of the power under art 32 to issue
35
(1997) 1 SCC 388, p. 415
36
Indian Council for Enviro-Legal Action v. Union of India (The Bichhri Case), 1996(3)
SCC 212
37
AIR 1987 SC 1086
Legal Mirror 217
directions, or orders, which ever may be appropriate in ‗appropriate

proceedings.
Another principal of international environmental law is the

―Doctrine of Public Trust‖. Accepting public trust doctrine as a part of
common law, the Indian courts have applied this explicitly in various cases,
the first one in 1997 in M.C Mehta v. Kamal Nath and others.38 In this case,
the apex court did not hide its ire in extending facilities by permitting a
motel to deviate the flow of a river and using forest for non-forest purpose.
Approving the doctrine of public trust for the first time and imposing on the
motel the responsibility of restoration of the environment and ecology of the
area, the Supreme Court observed:
―Our legal system-based on English Common Law- includes the public trust
doctrine as part of its jurisprudence. The state is the trustee of all natural
resources, which are by nature meant for public use and enjoyment. The
public at large is the beneficiary of the sea-shore, running waters, air,
forests and ecologically fragile lands. The state as a trustee is under a legal
duty to protect the natural resources. These resources meant for public use
cannot be converted into private ownership‖.39 The public trust doctrine,
therefore, furnishes a theoretical framework to the courts in deciding those
cases relating to the environment where a major community resource has
been directed towards purposes and uses other than those for common
enjoyment and benefit.
5. Conclusion
It is now evident by analysing the judicial pronouncement that the

right-based approach applied by the Indian juduiciary is the right step in the
protection of environment. The judiciary has played a pivotal role in the
38
(1997) 1 SCC 388
39
Ibid, p 413
Legal Mirror 218
development of environment jurisprudence especially by interpreting the

constitutional provisions spirit in view of major international environmental
law and international human rights law documents and subsequently,
evolving the tool of Public Interest Litigation by liberalizing the rule of
locus standi. The liberal interpretation of the constitutional provisions
especially Article 21 of the constitution was done in a large number of cases
mentined above to have access to the very basic elements of the life to lead
a dignified life.
By applying the right-based approach the judiciary also set a new

trends in the legal arena and reposed the faith of the people for remedies to
the problems in case of the violation of human rights due to environmental
degradation. A citizen has the right to have recourse to Article 32 of the
Constitution if anything endangers or impairs that quality of life in
derogation of laws .40 Thus, the rights to a healthy environment, to clean air
and to clean water have been given the status of fundamental rights through
judicial interpretation.
40
Subhash Kumar v. State of Bihar, (1991) 1 SCC 598
Legal Mirror 219
ABORTION: A BOON MISUSED
Debajyoti Saha*& Sunayana Bhat**
INTRODUCTION
Abortion is the termination of pregnancy before the fetus is developed so

that it can live independently. Many countries have considered this as a
murder and in some countries; the women state that it is their fundamental
right to have control over the body. Abortion was made legal in India
through the Medical Termination of Pregnancy Act, 1971. The main
objective was to reduce illegal abortions. An abortion can be performed till
the 20th week of the pregnancy. There can be many reasons for abortion
among which some are:
1. The mother has a serious disease and the pregnancy will affect both
the child and the mother.
2. There is substantial risk to the fetus e.g. chances of being handicap.
3. The pregnancy is endangering the mental and physical well being of
the mother.
Abortion cannot be performed at any medical institution unless it is

registered under the government for performing medically assisted
termination of the pregnancy. If a woman is married; her consent is enough
1
for the abortion. If the woman is unmarried and above 18 years, her
consent is enough but if she is less than 18 years, the consent of the
guardian is also required.
1
Manish Garg, RIGHT TO ABORTION,
http://www.legalserviceindia.com/articles/adp_tion.htm, Last Accessed on 25th December
2015.
Legal Mirror 220
Can abortion be considered as a fundamental right?
Human Privileges are those rights, which should be available to every

person without any elegance of any type. Identification of the natural pride
and of the equivalent and inalienable rights of all associates of the person
family members is the base of independence. The most essential right of a
Human is the right to lifestyle. It is the superior personal right from which
no derogation is allowed. It is inalienable. The Content 6(1) of the
Worldwide Agreement on Municipal and Governmental Privileges prevent
the irrelevant deprival of lifestyle. But there are some questions regarding
the process of this superior right. One such problem is the query of Right to
abortion. Among other rights of females, it is considered that every mom
has a right to abortion, it is a worldwide right. But the rights of mom are to
be healthy with the rights of the unborn.2
Roe v.Wade3 became one of the most politically significant superior

decisions in history, re-shaping nation-wide politics, splitting the nation into
"pro-choice" and "pro-life" ideologies, and inspiring grassroots activism.
This is a milestone United Declares Superior Judge choice establishing that
most rules against abortion breach a constitutional right to privacy, thus
knocking over all condition rules suspending or reducing abortion that were
inconsistent with your choice. Jone Roe, the plaintiff wanted to cancel her
pregnancy because she suggested that it was a result of sexual assault.
Relying on the current condition of medical knowledge, your choice
established a system of trimesters that attempted to balance the region's
legitimate interests with the individual's constitutional rights. The Judge
decided that the condition cannot limit a woman's right to an abortion during
the first trimester, the condition can regulate the abortion procedure during
the second trimester "in ways that are reasonably related to expectant
2
Supra 1.
3
Roe v.Wade , 410 U.S. 113 (1973).
Legal Mirror 221
mothers health," and in the third trimester, demarcating the stability of the
unborn infant, situations can choose to limit or even to proscribe abortion as
it sees fit.In response to Roe v. Go, several states introduced rules restricting
abortion, including rules demanding parent approval for those under 18 to
obtain abortions, parent notice rules, spousal approval rules, spousal notice
rules, rules demanding abortions to be performed in medical centers but not
treatment centers, rules with the exception of condition funding for
abortions, rules prohibiting most very delayed term abortions. The Superior
Judge struck down several condition limitations on abortions in a long series
of cases stretching from the mid-1970s to the delayed 1980's.
The 1971 Act has given all the rights to woman to decide and terminate her
pregnancy subject to some conditions. But due to under-funded and
unaccountable health system of India, this Act did not materialize. There
were wrongful interpretations of the provisions of the Medical Termination
of Pregnancy Act, 1971. The provisions were liberal so the doctors used it
as per their own idiosyncrasies. The doctors were mainly male doctors and
even if there were some women doctors, they did not have the courage to
approve abortion in any case. The doctors also had the fear of
stigmatization. There was trying for spreading public awareness among the
public that abortion is legal but the allocation of fund towards this
programme was not enough.
In the year 1971, India was one of the few countries which have enacted
abortion laws due to the pressure of the different women groups at that time.
That was a really progressive step. After that different countries enacted
their abortion laws. But in the last 4 decades, there was no such uproar
among the activists to amend the provisions to keep pace with the current
Legal Mirror 222
scenario. This was may be due to the reason that the thinking of the people
that there were many other issues to be addressed except abortion laws. 4
Problems in regard with abortion in rural areas
The main problem lies in the rural areas where there is existence of
pregnancy at very early stage. Anything happens related to pregnancy, they
used to think that it is inevitable and they have to suffer it. The society will
not understand the problem of a mother that she has to underwent if she
does not terminate her pregnancy. In addition to that, the methods used by
the doctors are outdated. Doctors are still doing surgical abortion by dilation
and curettage (D&C). They do not use the manual vacuum aspiration
(MVA) which quicker, safer for the early abortions.
Abortion complications cannot be ignored. It requires a minimum two days

of hospitalization and availability of qualified doctors nurses. The Primary
Health Centers (PHC) are not properly equipped. They should provide these
facilities at free of cost as authorized by the government. The unqualified
abortionists exaggerate the situation. The botched abortions done by them
deteriorate the condition of the women. There are many times when the
women approach hospital after the abortion in a critical condition. She
might be in need of blood transfusion which the ill-equipped hospitals will
not be able to provide at the correct time.
The urban and rural women fear to visit the government hospitals because
they do not want any information related to them to be disclosed in the
common public. So they terminate their pregnancy mostly in the hands of
the unauthorized abortionists. Over that the women are forced to sterilize
themselves by the doctors. It is not clear as to how miserable the coercion is.
4
Angloinfo, TERMINATION OF PREGNANCY AND ABORTION IN INDIA,
http://india.angloinfo.com/healthcare/pregnancy-birth/termination-abortion/, Last Accessed
on 25th December 2015.
Legal Mirror 223
Indian society is still conservative and pre-marital sex is still considered as a

taboo. There are many cases where an unmarried pregnant woman had to
face hostile behavior of the doctors during abortion.
Medical Termination of Pregnancy (Amendment) Bill, 2014 was introduced

by the health Ministry last year for comments on the termination of the
pregnancy beyond 20 weeks. The draft bill stated that the pregnancy can be
terminated between 20 and 24 weeks if the pregnancy is causing substantial
harm to both mother and the child or the pregnancy is caused by rape.
In the decade when the Medical Termination of Pregnancy Act was passed,
the medical conditions were not sophisticated. But now we have the
provisions of ultrasound, magnetic resonance imaging (MRI) to check the
health of the child in the mother‘s womb. But the laws are not keeping pace
with the medical development. The bill has been drafted from so many years
but it is still pending in the court of law.
In India, sexual crimes, lack of decision making power of the women, social
taboo are the main reasons for the illegal abortions. The number of certified
doctors is not enough to redress the problems. Therefore the abortions are
mainly done by the unrecognized middle people. The bill proposed to allow
Ayurveda, Unani and Siddha practitioners to carry out abortions through
medical means. The bill has realized the mental agony that a pregnant
woman has to suffer where the same has been caused by rape.
The medical experts have shown their disagreement over the termination of
20 weeks pregnancy because many times the foetus abnormalities show up
after 18 weeks. Extending the duration of pregnancy is not a single factor
for the protection of both the woman and the child. Access to a qualified
doctor, hygienic conditions, pre and post abortion care are also the
significant factors for the well being of the mother.
Legal Mirror 224
Other complications
In the light of present financial demands and overcrowding in medical

facilities, the benefits on price, space, and time associated with the use of
MVA cannot be ignored. Research from South African-American shows
that the adopting of MVA over D & C decreased medical center remains by
41to76 percent, and decreased costs to the affected person by more than
half. A relative research performed in Africa and Latina The united states
discovered that the common expense of a D & C was US $78.81 in
comparison to the common expense of an MVA, which was only US $8.50.
Similarly impressive information comes from Peru, where it was discovered
that the complete time invested (pre-operative, surgical, postoperative) was
271 moments for an out-patient MVA as instead of 2,638 moments for an
inpatient D & C.
Abortion problems can be quite serious. They require a regular of two days
of hospitalization and a great deal of doctors‘ and nurses‘ time. Most of
government public wellness facilities (PHCs) are not built with the standard
features or employees to execute abortions securely, even though this is
expected to be one of the free medical services offered by them.
Nevertheless they are expected to manage the results of a large amount of
messed up abortions by not qualified abortionists, as a result of the use of
techniques far more risky than D & C. According to a 1990 research done
by WHO, over one one fourth of the expectant mothers deaths in low-
income nations is the result of risky abortion. This makes abortion mistakes
the single most destructive take into account women‘s libido. Unsafe
abortion is also mentioned as it all most common aspect major to expectant
mothers death rate, following lose blood, oblique causes (such as malaria or
anemia), and sepsis.
Legal Mirror 225
By sufficient time a female gets to a medical facility after a messed up

abortion, she is sometimes in crucial situation and often in need of a veins
transfusion, which a medical facility may or may not be able to provide
securely. To be able to sensibly manage urgent cases, treatment facilities
and medical facilities need to be able to give sedation, medications,
medication drop, or a veins transfusion, as needed5.
As said before, privacy and rate of services are two significant main
concerns for most females who search for abortions. Local suppliers are
recommended for several important reasons. First, they are acquainted to
group associates, and second, they also spread medications for common
diseases, so people are less likely to suspicious the real reason for the visit.
The primary priority for most females is to get in and out of the medical
center as quickly as possible, ideally the same day, before any neighbors or
associates find out and start growing rumors. Never-ending household
perform and family obligations also ensure it is hard for them to take out the
essential time for a safe abortion. Therefore, they usually hotel to reliable
suppliers who have no official coaching and use extremely high-risk
methods without primary cleanliness, such as the cleaning of arms or the use
of clean equipment.
This indicates an obvious management on the part of the MTP Act: it is a

law that limits the duplicate abortion suppliers to whom the majority of
inadequate and non-urban females turn. The medical part of abortion has led
to neglecting these suppliers rather than developing special programs to
practice, manage and hold responsible non-medically qualified abortionists
in order to increase their efficiency. There is comparatively less opportunity
5
Manushi: Legal but Not Available,
THE PARADOX OF ABORTION IN INDIA,
http://indiatogether.org/manushi/issue126/abortion.htm#sthash.yKUpcf27.dpuf, Last
Accessed on 25th December 2015.
Legal Mirror 226
for knowledge and primary requirements to achieve them if they are

involved in an unlawful, duplicate action. Furthermore, there is no
motivation for them to change their methods as long as they keep a good
living and females are not aware of other practical options. Initiatives of
NGOs to practice conventional beginning guests (TBAs) have met with
combined success. Further efforts to operate with exercising midwives and
inexperienced suppliers would be beneficial as these individuals continue to
bring out abortions. The real key significant to problems is sepsis, and result
that is preventable with primary coaching, guidance, and cautious upkeep of
appropriate equipment.6
6
Supra 4.
Legal Mirror 227
EUTHANASIA: A PIGEON’S LAST STRAW

Disha Lagan * & Anshika Bajpai**
What is Euthanasia?
We are living in a certain way from time immemorial. We are given

numerous rights after birth to maintain a standard of living. One such right
is ‗right to life‘. 'Right to life' is ensured under Article 21 i.e. no person shall
be deprived of his life or personal liberty except according to procedure
established by law.1 Right to life implies an individual has a right to live,
especially that such person has the privilege not to be executed by another
person. In any case, with this right question rises whether it additionally
guarantees right to die? Does a person also have the right to end his life?
The concept of right to life is fundamental to the debate on the issue of
Euthanasia.
The word Euthanasia originated in Greece implies a 'good health'. The term
was begat by the historian Suetonius. Euthanasia is described as the planned
and intentional killing of a man for the advantage of that individual keeping
in mind the end goal to assuage him from torment. Some of the time
individuals with terminal sickness might preferably want to die peacefully
than sticking on to life loaded with pain and suffering. It is otherwise called
'Mercy Killing' where the person who, is in an irremediable condition or has
no odds of survival as he is suffering from painful life ends his life in
painless manner. It is resorted to so that the last days of a patient who has
been experiencing such a disease which is terminal in nature or which has
incapacitated him can peacefully end his life and which can likewise be less
painful for him. Along these lines the fundamental goal behind euthanasia is
to guarantee a less painful demise to a man who is regardless going to die
after long period of suffering. This request for premature ending of life has
1
Constitution of India, 1950; Article 21
Legal Mirror 228
added to the debate about the part of such practices in contemporary health
care.
Euthanasia may be classified into three types based on consent:
 Voluntary euthanasia- when the person who is killed has requested

to be killed.
 Non-voluntary euthanasia- when the person who is killed made no
request and gave no consent. In other words, it is done when the
person is unable to communicate his wishes, being in coma.
 Involuntary euthanasia- when the person who is killed made an
expressed wish to the contrary. In other words, it is involuntary
when the person killed gives his consent not to die.
Euthanasia can also be divided into two types according to means of

death:
 Active euthanasia- it is also known as ‗Positive Euthanasia‘ or

‗Aggressive Euthanasia‘. It refers to causing intentional death of a
human being by direct intervention. It is a direct action performed
to end useless life and a meaningless existence. For example by
giving lethal dose of a drug or by giving a lethal injection. Active
euthanasia is usually a quicker means of causing death and all
forms of active euthanasia are illegal.
 Passive euthanasia- it is also known as ‗Negative Euthanasia‘ or
‗Non-Aggressive Euthanasia‘. It is intentionally causing death by
not providing essential, necessary and ordinary care or food and
water. It implies to discontinuing, withdrawing or removing
artificial life support system. Passive euthanasia is usually slower
and more uncomfortable than active. Most forms of voluntary,
Legal Mirror 229
passive and some instance of non-voluntary, passive euthanasia

are legal.
Euthanasia is dubious since it includes the deliberate termination of human

life. Patient suffering from terminal diseases are frequently confronted with
immense pain as the ailments bit by bit exacerbates until it kills them and
this may be so unnerving for them that they would preferably end their life
than suffering it.
Difference between suicide and euthanasia
There is a conceptual distinction between suicide and euthanasia. In a

suicide a man intentionally murders himself by wounding, harming or by
whatever other way. Undoubtedly in suicide one purposefully endeavors to
take his life. It is a demonstration or occasion of deliberately killing oneself
mostly because of misery or different reasons, for example, dissatisfaction
in love, disappointment in examinations or getting a good job etc. Suicide is
a demonstration of purposeful murdering of oneself. It is an act of
intentional killing of oneself. It is the intentional termination of one‘s life of
one‘s life by self induced means for various reasons.
Euthanasia is committed on the basis of medical reasons, where a person‘s

life who is suffering from a terminal illness is ended by another person, who
believes that such individual's life is painful to the point that he/she would
be better dead; additionally when his activities depend on the conviction that
unless he intercedes and ends the individual's life, it should turn out to be
painful to the point that he/she would be better off dead. It might be
expressed that the rationale of the individual committing such acts of
euthanasia is to advantage the one whose death is brought about. In
Euthanasia, a third individual is either effectively or latently included i.e he
helps or abets the killing of someone else.
Legal Mirror 230
It is critical to specify in this connection that there is likewise a contrast

between 'assisted suicide' and 'euthanasia'. Assisted suicide is a
demonstration which deliberately helps another to confer suicide, for
instance by giving him the way to do as such. When it is a specialist who
helps a patient to execute himself (by giving a prescription for lethal
medication) it is a 'physician assisted suicide'. Accordingly, in assisted
suicide the patient is in the control of the procedure that prompts demise in
light of the fact that he/she is the individual who performs the act of suicide.
The other individual basically helps (for instance, prescribing the way).
Both suicide and euthanasia are illegal in our country. Suicide is illegal
under section 307 of Indian Penal Code and on the other hand, permission
for mercy killing can only be granted by the President of the country.
Citizens have the right to life ensured under Article 21 of the Indian
Constitution but they don‘t have the right to end their life. In our country
lives are too precious to end just like that. Our country and laws force us to
live a life even when there is nothing left. People are not given autonomous
choice to end their life.
Legislative status of Euthanasia in India
In India the conflict whether the 'right to live' incorporates within its ambit
the 'right to die' came in the limelight first time in the year 1987 in the case
of State of Maharashtra v. Maruti Shripati Dubal 2, wherein the Bombay
High Court held that a person also has the right to die, he can end his life
whenever he wants. The said decision of the Bombay High Court was
maintained by the Supreme Court of India in the case of P. Rathinam v.
Union of India3 , where the Supreme Court held that a person can‘t be
forced to live a life to his disadvantage and his disinterest. However, the
2
State of Maharashtra vs. Maruti Shripati Dubal;1987 (1) BomCR 499
3
P. Rathinam vs. Union of India; 1994 AIR 1844
Legal Mirror 231
Supreme court rejected the plea that mercy killing should be permitted
because in euthanasia a third person is involved who administers the killing
of another person.
It was in Gian Kaur‘s case, that a five Judge Bench of the Supreme Court
overruled P. Rathinam‘s case, and held, ―The ‗right to life‘ under Article 21
of the Constitution of India does not include the ‗right to die‘ or ‗right to be
killed‘… the right to life would mean the existence of such a right upto the
end of natural life. This also includes the right to a dignified life upto the
point of death including a dignified procedure of death.‖ The Supreme
Court also held that Article 21 of the Constitution of India does not include
therein, the right to curtail the natural span of life.4
There is no mention of the concept of euthanasia in the Indian penal code. In

the eyes of law, euthanasia is either:
 Murder- if committed without consent or committed with consent in

case of a minor or insane person.
 Culpable homicide- in case of consenting adults of sound mind
 Abetment to suicide- if any person commits suicide, whoever abets
the commission of suicide. 5
Consent cannot be pleaded as a defence in cases where consent is

acquired to cause death or grievous hurt. The ‗murderer‘ is either a
principle offender or an abettor, depending upon the facts and
circumstances of each case. However, consent may have the effect of
reducing the gravity of the offence and the existence of consent may
mitigate the punishment in certain cases. Hence the defence of consent
4
Gian Kaur vs. State of Punjab; 1996 AIR 946
5
Legalization of euthanasia in India with specific reference to terminally ill; Tania
Sebastian
Legal Mirror 232
or consent coupled with ―good faith‖ and/or ―benefit‖ is irrelevant once

euthanasia is administered.
Consent can't be argued as a protection in situations where it is obtained

to bring about death or grievous hurt. The "murderer" is either an
offender or an abettor, contingent on the facts and circumstances of
every case. However, consent might have the impact of lessening the
gravity of the offense. Thus the safeguard of consent or consent
combined with "good faith" and/or "benefit" isn‘t important once
euthanasia is executed.
In the modified and revised Bill proposed by 19th Law Commission, the
procedures laid down are in line with the directions of the Supreme
Court in Aruna Ramachandra case. Salient features of these are:
 ‗Best Interests‘ include the best interests of a patient

 Who is an incompetent patient
 Who is a competent patient but who has not taken an
informed decision
 ‗incompetent patient‘ means a patient who is a minor below the
age of 18 years or person of unsound mind or a patient who is
unable to
 Understand the information relevant to an informed
decision about his or her medical treatment
 Retain the information
 Use or weigh that information as part of the process of
making his or her mind or brain
 Communicate his or her informed decision (whether by
speech, sign, language or any other mode) as to medical
treatment.
Legal Mirror 233
 ‗Competent patient‘ means a patient who is not an incompetent

patient.
 ‗informed decision‘ means the decision as to continuance or
withholding or withdrawing medical treatment taken by a patient
who is competent and who is, or has been informed about-
 The nature of his or her illness
 Any alternative form of treatment that nay be available
 The consequences of those forms of treatment
 The consequences of remaining untreated6
The transition and evolution of Article 21 of the Indian Constitution can be

defined by the journey of cases from P. Rathinam to Gian Kaur. The main
contention mostly was whether ‗right to life‘ includes ‗right to die‘ and for
now euthanasia can only be permitted by the President of the country and in
no other case.
As the biological and medical sciences become more adept at prolonging

life, we have been brought to consider the extent of a person's right, and
ability, to choose, to accept, and to reject treatment for some treatable
condition. Cases may become complicated by the mental state of the patient
(e.g., depression, intellectual disability), by the effect of certain physical
conditions on cognition, (e.g., kidney damage), by religious and cultural
beliefs, by balancing the rights and welfare of an individual against those of
the population, and by the practical costs and requirements of providing
treatment and care. Psychologists, by virtue of their knowledge and skills in
dealing with mental states, cognitive abilities, beliefs, and individual
characteristics, have a useful perspective to offer the debate on the rights of
a terminally ill person to request assistance from a medically qualified
person to voluntarily terminate his or her life. In the following section, we
6
Present status of Euthanasia in India from medico-legal perspective; Dr. Adarsh Kumar
Legal Mirror 234
set out arguments, without endorsement, which are often advanced in favour
of, and opposing, making euthanasia more accessible than it is now.
Arguments in Favour of Euthanasia
3.1 Ethical/Moral
3.1.1 To respect sufferers‟ autonomy:-
This argument rests on the ideal of being able at all times to exercise as
much control over one‘s own life as is possible. This ideal is stated, for
example, in Principle 6 of the Australian Council of the Ageing's "Rights of
the Elderly": "The right of individuals to consultation and participation in
decisions affecting all aspects of their lives". The issue of self-control is the
crux of such notions as ―the right to die‖, and ―the right to die with dignity‖,
which assume that suffering persons have the absolute right to choose
whether to live or to die, that the moral agent is the suffering person. If and
when a sufferer decides that life should end, legal euthanasia would provide
the means for ending it, safely, without placing another person or group of
persons in legal jeopardy.
3.1.2 To allow individuals to value “quality of life” over “sanctity of

life”:-
Here it is argued that people have the right to decide whether quality of life
or sanctity of life is most important to them. When a person is suffering
severe pain or is severely restricted by illness, or when life depends, for
example, on drugs which cloud consciousness and reduce control, those
who value quality of life more highly may seek an end to life. Euthanasia
would allow them to do so, without placing other people in legal jeopardy.
Legal Mirror 235
3.1.3 To end suffering:-
One argument in favour of making euthanasia a legal option for someone

who is terminally or incurably ill or incapacitated, is suffering intolerably,
and has expressed a wish to die, rests on the belief that suffering should be
relieved or ended, that suffering harms the sufferers by robbing them of
peace or pleasure, and demeans them. 8 Another aspect, sometimes
raised,concerns the suffering of carers: caring for or watching someone
suffer, without any chance of relief or recovery, can become difficult to
tolerate for the carers and watchers, both emotionally and physically, so that
the carers‘ only prospect of relief resides in the death of the patient.
3.1.4 To reduce reliance on life support systems and/or advanced

medical knowledge:-
The cost of health care has increased greatly and shows every sign of
continuing to increase. The perceived impropriety of making use of high
technology and expensive medical procedures in cases where the only
positive outcome is the temporary lengthening of life, without improvement
in quality of life or prospect of recovery, is often seen as an argument for
euthanasia. While it is ethically distasteful to ask for establishment of
priorities for access to advanced medical technology, the issues of need and
good outcome may make it imperative. If such priorities are at least implicit
in, say, medical policy and hospital practice, then those priorities would, in
fact, imply covert practice of euthanasia. Some form of legalisation would
allow a more honest acknowledgment that euthanasia is an option.
3.1.5 To reduce risk of premature suicides:-
Some terminally ill patients who wish to end their suffering without
incriminating loved ones take their own lives in secret, sometimes violently.
Knowing that they will be physically unable to do so at a later stage, some
Legal Mirror 236
patients end their lives early on into their disease. Seven percent of doctors
questioned in a Medix-UK survey reported that at least one of their
terminally ill patients had committed or attempted suicide.
3.2 Legal
3.2.1 To reduce the legal jeopardy of those who implement euthanasia:-
Euthanasia occurs now. Legally, a person who kills another or connives at

the death of another, breaks the law and may be charged with a serious
criminal offence (murder or manslaughter), and may be convicted and
punished. That the killing resulted from requests from the sufferer, and that
it was done from motives of empathy and compassion, will not necessarily
alter the legal situation. If euthanasia were recognised as an option, and
provided that accompanying regulations were observed, then a person who
assists a person to die would be protected from prosecution, or at least have
a defence.
3.2.2 To allow regulation of procedures regarding euthanasia:-
It is widely recognised that euthanasia does occur covertly. Overt

recognition would allow regulations to be developed governing modes of
request and consent, counselling for sufferers and families, decisions about
modes of death, and so on.
3.3 Public Opinion
3.3.1 Changes in professional and public attitudes to euthanasia:-
9 Surveys and polls over the past decade show that both professionals and
the public are more ready to consider euthanasia as an alternative to
sustaining a life of suffering. If it is believed that legislation should be
Legal Mirror 237
responsive to public opinion, this would constitute an argument in favour of

legislative change.
Conclusion
This contention lays on the perfect of being capable at all times to practice
as much control over one's own life as is conceivable. This perfect is
expressed, for instance, in Principle 6 of the Australian Council of the
Aging's "Privileges of the Elderly": "The privilege of people to interview
and investment in choices influencing all parts of their lives". The issue of
restraint is the core of such ideas as "the privilege to pass on", and "the
privilege to pass on with ―nobility", which accept that anguish persons have
indisputably the privilege to pick whether to live or to bite the dust, that the
ethical specialists is the anguish individual. In the event that and when a
sufferer chooses that life ought to end, lawful willful extermination would
give the way to consummation it, securely, without putting someone else or
gathering of persons in lawful danger.
Here it is contended that individuals have the privilege to choose whether

personal satisfaction or sacredness of life is most critical to them. At the
point when a man is enduring extreme agony or is seriously limited by
disease, or when life depends, for instance, on medications which cloud
awareness and diminish control, the individuals who esteem personal
satisfaction all the more exceedingly may look for a conclusion to life.
Killing would permit them to do as such, without putting other individuals
in lawful peril. One contention for making willful extermination a lawful
choice for somebody who is terminally or hopelessly sick or crippled, is
enduring insufferably, and has communicated a wish to bite the dust, lays on
the conviction that agony ought to be diminished or finished, that torment
hurts the sufferers by denying them of peace or delight, and belittles them.
Legal Mirror 238
IDENTIFYING AND COUNTERING TAX CHALLENGES IN

E-COMMERCE
Agrim Arora*
1. E-commerce and its growth in India
E-commerce has revolutionised the way business is done. Out of the total
3.2 billion internet users1 9.4% are Indian users (a total of 302.25 million
internet users2). Having stated that, there still exists a digital divide in India,
because of which, the benefits of the use of internet are not extended to the
rural areas. The potential of e-commerce in India is enormous as more than
three-fourths of the population in India is still not subscribed to internet or
broadband services.
The e-commerce sector has seen a massive growth in the past few years.
Factors such as increased use of applications on mobile phones and tablets
and enhanced internet speeds through 3G etc., have contributed immensely
to the growth in this market. Indian e-commerce is at a stage of evolution.
The e-commerce sector has seen a growth of 331.57% in the last five year
(from 3.8 billion USD in 2009 to 16.4 billion USD in 2014) and it is
estimated that it will grow another 29.88% in this year expected to touch
21.3 billion USD in 20153. This growth and a huge potential in the market
has prompted numerous indirect investments in India as FDI for retail e-
1
ICT Data and Statistics Division, ‗ICT Facts and Figures: The World in 2015, (Report by
ICT in May 2015), < http://www.itu.int/en/ITU-
D/Statistics/Documents/facts/ICTFactsFigures2015.pdf >, accessed 18/10/2015.
2
Telecom Regulatory Authority of India, ‗The Indian Telecom Services Performance
Indicators January-March 2015‘ (Report by TRAI on 12/08/2015 <
http://www.trai.gov.in/WriteReadData/PIRReport/Documents/Indicator-Reports-
Mar12082015.pdf > accessed 18/10/2015.
3
PwC, ‗ecommerce in India: Accelerating Growth‘ (Publication by Pwc in Feb 2015) <
https://www.pwc.in/assets/pdfs/publications/2015/ecommerce-in-india-accelerating-
growth.pdf > accessed 18/10/2015.
Legal Mirror 239
commerce is not permitted4 (only permitted for B2B investment). According

to a report by Forrester research5, the revenues in India are expected to
increase by more than 5 times to 8.8 billion USD by 2016.
E-commerce has been defined by the OECD Working Party on Indicators

for the Information Society6 as ―the sale or purchase of goods or services
whether between businesses, households, individuals, governments and
other public or private organisations conducted over computer networks by
methods specifically designed for the purpose of receiving or placing of
orders. The goods and services are ordered over those networks, but the
payment and ultimate delivery of the good or service may be conducted on
or off-line‖.
Taxation of E-commerce Transactions
The growth of e-commerce raises various issues relating to taxation of

business transactions conducted electronically. The digital nature of e-
commerce operations raises various issues as residents from different
nations are involved and thus, it can be taxed in more than one country or a
circumstance of double non-taxation may arise.
The Committee on Fiscal Affairs set up by the Organisation for Economic

Co-operation and Development (hereinafter referred to as ―OECD‖)
discussed five well-established principles7 of taxing e-commerce
4
Para 6.2.16.3 and Para 6.2.16.4 of the Consolidated FDI Policy 2014.
5
ASSOCHAM India with Forrester as the Research Partner, ‗Trends in India‘s e-commerce
market‘ (Report on 13/08/2012)
<http://spidi2.iimb.ernet.in/downloads/Forrester_Trends_In_Indias_eCommerc.pdf>
accessed on 18/10/2015.
6
OECD Working Party on Indicators for the Information Society, OECD Guide to
measuring the Information Society 2011, (OECD Publishing, France 2011) 72.
7
OECD, ‗Taxation and Electronic Commerce: Implementing the Ottawa Tax Framework
Conditions‘ (2001), p. 17-18,
<http://www.oecd.org/tax/consumption/Taxation%20and%20eCommerce%202001.pdf>,
accessed 19/10/2015.
Legal Mirror 240
transactions which are: i) neutrality, ii) efficiency, iii) certainty and

simplicity, iv)effectiveness and fairness and v) flexibility. The same
principles were explained in Base Erosion and Profit Shifting (hereinafter
referred to as ―BEPS‖) Action 1: Addressing the tax challenges of the
Digital Economy8.
A High Powered Committee set up by the Ministry of Finance in 2001 to

determine the issues and come out with a report9 on ‗taxation in e-
commerce‘. The Committee recognising the principles for the tax system as
established by OECD came to a conclusion that the present tax systems in
the country (i.e. no separate exemptions for transactions in e-commerce)
supports neutrality. The Committee discussed two specific issues namely,
‗Permanent Establishment (PE) Status‘ and ‗Characterisation of e-
commerce payments‘.
The growth of businesses through digital means has called for changes in
domestic taxation laws. The laws should be synchronised with the
international guidelines in order to promote the activities of global
enterprises in India. It is important to discuss the concerns in Indian taxation
system for digital transactions.
3) Concerns in Direct Taxes

The two primary concerns in direct taxes are PE status and Characterisation
of Income in digital transactions which were also recognised by the High
Powered Committee.
8
OECD/G20, Base Erosion and Profit Shifting Project, Action 1: Addressing the
Challenges in the Digital Economy: 2014 Deliverable, (OECD Publishing, France, 2014).
9
High Powered Committee of Ministry of Finance, ‗Taxation and e-commerce‘ (2001)
<http://www.rashminsanghvi.com/articles/taxation/electronic_commerce/finmin.html>
accessed 18/10/2015.
Legal Mirror 241
3.1 PE Status in E-commerce
Internationally, the taxability of income in the domestic market depends

upon whether an enterprise has a permanent establishment. The issue relates
to what constitutes a PE and in which jurisdiction the income will be
taxable. Therefore, it is important to have definite rules to avoid double
taxation of an income. There are three tests recognised by the OECD Model
Law Tax Convention with respect to Taxes on Income and Capital
(hereinafter referred to as Model Tax Convention)10 for determining a
permanent establishment namely, i) assets test11, ii) agency test12 and iii)
activities test13. In digital transactions, it is difficult to determine the PE
status as there might due to the nature of transactions.
However, the corresponding concept in Indian law ―business connection14‖

recognised by the Income Tax Act, 1961, has a much wider connotation as
compared to PE. It has been held by the Bombay High Court in the case CIT
v National Mutual Life Association of Australia15 that for a ―business
connection‖ there should be a business is India and such business should be
connected with the non-resident company or a non-resident person. In
addition to that, such person or company must have earned some benefit.
Andhra Pradesh High Court in the case G.V.K Industries Ltd v ITO16 laid
down the following principles of business connection:
1. The business connection between non-resident and resident is a

mixed question of law and fact and varies from case to case
10
Article 5 of the OECD Model Tax Convention with respect to Taxes on Income and
Capital.
11
Ibid Para 2.
12
Ibid Para 5.
13
Ibid Para 4.
14
Section 9(1)(i) of the Income Tax Act, 1961.
15
(1933) I ITR (Bom) 350, 361.
16
(1997) 228 ITR 564.
Legal Mirror 242
2. Close and real relationship must exist between non-resident

company and a resident to constitute business connection
3. Continuity of business operation of non-resident with the
resident is required to constitute a business connection
It has been held by an Income Tax Appellate Tribunal in the case ITO v
Right Florists Ltd,17 that benefits earned through advertisement, where the
advertising company does not have a server in India, would not constitute a
PE and hence, it will not be taxable in India as no advertising revenue is
generated in the jurisdiction. In this case, the assesse paid an amount to
Google Ireland and Yahoo USA for advertising its business and tribunal
held that as the two companies did not have a server in India, therefore, no
PE is constituted and thus the proceeds would neither be taxable under the
Indian domestic law nor under the India US and India Ireland tax treaty.
This principle is internationally recognised that merely advertising on the
website about the products of an enterprise in some other jurisdiction does
not constitute PE in that jurisdiction. However, Indian tax authorities have
expressed reservation with the OECD that a website could constitute a PE
depending on the facts18.
3.2 Characterisation of Income
Income earned by non-residents can characterised as business income,

royalty or fee for professional services. The tax rate for different
transactions varies under the Income Tax Act. The taxable income further
differs if the non-resident has a business connection in India. In absence of a
business connection, 25% tax19 (10% with effect from 1st April 201620) is
levied on business profits (on a gross basis) when the business income
17
I.T.A. No.: 1336/ Kol/ 2011.
18
Ibid.
19
Section 115A (1)(b) of the Income Tax Act, 1961.
20
Clause 27 of Finance Act, 2015.
Legal Mirror 243
qualifies either as royalties or fee from technical services (FTS). However,

if there is lesser tax prescribed under a treaty, such tax will be applicable.
There is no tax levied in case the business profits do not qualify royalties or
FTS21. Whereas, in the presence of a business connection, the business
profits of a non-resident, 40% income which is attributed to the business
connection will be taxed.
The final report22 by Technical Advisory Group on Treaty Characterisation

of Electronic Payments (hereinafter referred to as ―TAG‖) set up OECD
identified and examined 28 categories of transactions in e-commerce.
However, the High Powered Committee23 had a different view on 15 of
those transactions.
It is clear that income earned by platforms through sale of tangible products

would be treated as business profits as both the TAG Report and the report
by High Powered Committee have the same view on the question. However,
there is a degree of inconsistency between domestic law and Double Tax
Avoidance Agreements, in contrast to international standards, for profits to
be treated as business profit, royalty or fee from technical services (FTS).
The definition of royalty24 as amended in 2012 is wide enough to cover

transaction involving scientific equipment where possession is not
transferred to the recipient. Internationally, it is only considered a royalty
when there is transfer of possession. Therefore, applying the international
21
Section 9(2) of the Income Tax Act.
22
OECD, ‗Treaty Characterisation issues arising from e-commerce‘, (February 2001)
Annex 2 < http://www.oecd.org‌‌/ctp/consumption/1923396.pdf> accessed 19/10/2015.
23
High Powered Committee of Ministry of Finance, ‗Taxation and e-commerce‘ (2001) (n
10)
24
Explanation 2 to Section 9(1)(vi) of the Income Tax Act, 1961.
Legal Mirror 244
guidelines, the Authority for Advance Ruling in a case25 did not construe
benefits from such transactions as royalty, while interpreting tax treaties.
However, in the Cargo Community Case26, it has been held even if the
control or possession of the server is not given to the Indian customer, the
payment received by a non-resident from Indian customers is considered
royalty for tax purposes.
There are various instances where the Indian courts have characterised an
income different from how it is characterised internationally. Moreover
there is no settled law on various types of transactions such as website
hosting, data warehousing and retrieval services etc.
4. Organisation for Economic Co-operation and Development

(OECD) and E-commerce
OECD is an international economic organisation which acts a forum for
discussing issues and agreeing upon agreements (through research and
deliberations) to promote economic prosperity by taking into account varied
practices followed in different parts of the world. OECD describes itself as
"organisation helping governments tackle the economic, social and
environmental challenges of a globalised economy". Presently, there are 34
member countries that co-operate with 70 non-members dealing with the
challenges faced by the globalised economy.
One of the crucial initiatives of OECD, which is endorsed by the G20

forum, is the BEPS Project. BEPS is a global problem and to counter it
OECD developed an action plan27 in July 2013. The action plan contains 15
actions dealing with different issues, seven of which were delivered in
25
Dell International Services (India) P. Ltd, In re, [2008] 305 ITR 37.
26
Cargo Community Network Pte. Ltd. In re, [2007] 289 ITR 0355.
27
OECD, ‗Action Plan on Base Erosion and Profit Shifting‘, (September 2013) <http:/
/www.oecd.org/ctp/BEPSActionPlan.pdf accessed 19/09/2015.
Legal Mirror 245
September 2014 and the rest delivered in September 2015. Subsequent to

the delivery of the deliverables to the G-20 finance ministers, it has to be
followed-up and a procedure for implementation has to be decided.
4.1 Permanent Establishment in OECD Model Tax Convention
The term ‗permanent establishment‘ has been defined in the OECD Model
Tax Convention on Income and Capital as ―a fixed place of business
through which the business of an enterprise is wholly or partly carried
on‖28.
The OECD Commentary on Article 5(1)29 lays down conditions for an

enterprise to be a considered a PE. Firstly, there should be existence of a
―place of business‖, that is, there must be some ―facility such as premises
or, in certain instances, machinery or equipment‖. Secondly, there must be a
degree of ―permanence‖ with respect to the place of business. Finally, the
business should be carried on through this fixed place.
As per the OECD commentary30 mere software and electronic date on a

website would not constitute PE in an e-commerce transaction. There must
be some tangible ―equipment‖ in form of a server on which the web site is
stored through which it will have a physical ―place of business‖ and thus
constitute a PE for tax purposes. Such server must be located at a specific
place for a significant time, in order for it to constitute a PE.31
28
Commentary to Article 5 of the OECD Model Tax OECD Model Law Tax Convention
with respect to Taxes on Income and Capital, Para 2, p 92.
29
Ibid.
30
Ibid 110, Para 42.2.
31
Ibid 111, Para 42.4,
Legal Mirror 246
4.2 Technical Advisory Group (TAG) Report on Treaty

Characterisation of E-commerce Payments
The TAG report sets out the importance of characterisation of payments and
how the issues linked to it can be solved. The report suggested changes to
Commentary to the OECD Model Tax. Further, the report identified and
described various characterisation issues and suggested changes in the
Commentary to Article 7 (Business Profits) and Article 12 (Royalties).
Some of the important issues identified by the report are discussed as
follows:
Business profits and payments for the use of, or the right to use, a
copyright32: The distinction between business profits and the treaty
definition of ―royalties‖ dealing with payments for the use of, or the right to
use, a copyright gives rise to characterisation issue. The main issue is the
identification of consideration of payment as royalties apply to various parts
of the definition.
Business profits and payments for know-how33: It is important to

distinguish between know-how and provision a service for characterisation.
The essentials of know-how transactions include ―undivulged technical
information‖, ―imparting of special knowledge and experience‖ and the
person imparting the knowledge is not required to participate in the process.
Business profits and payments for the use of/right to use industrial,
commercial or scientific equipment34: The group concluded that payments
arising from digital products cannot be considered as ―royalties‖ within the
scope of the definition because there must be existence of equipment.
32
Technical Advisory Group on Treaty Characterisation of Electronic Commerce
Payments, ‗Treaty Characterisation issues arising from e-commerce‘ (1/2/2001) , p 5
available at http://www.oecd.org‌‌/ctp/consumption/1923396.pdf accessed 22/10/2015.
33
Ibid 7.
34
Ibid 11.
Legal Mirror 247
Provision of Services35: It is important to distinguish provision of services

from acquisition of property. In case, the end result and the consideration of
transaction is the acquisition of property (acquired from the provider) it
cannot be termed as service transaction.
Technical Fees36: The term „technical fees‘ has been defined as ―payments
of any kind to any person, other than to an employee of the person making
the payments, in consideration for any service of a technical, managerial or
consultancy nature‖. It can only be termed as a ‗technical fee‘ unless the
special skill or knowledge is also required when the service is provided to
the end-customer.
Mixed Payments37: In case of mixed transactions in e-commerce, the tax

treatment of predominant or significant part of the transaction must be
followed.
The report concludes by examines 28 categories of e-commerce

transactions38 and the manner in which they are to be characterised. On the
basis of the report, changes are made to the OECD Commentary39.
5. BEPS Action Plan: Action 1: Addressing the Tax Challenges of

the Digital Economy
On 16th September 2014, OECD delivered the final report40 on ―Tax
Challenges in Digital Economy‖ as a part of BEPS Action Plan. The report
addresses the issues faced as a reason of spread of the digital economy. It
35
Ibid 13.
36
Ibid 14.
37
Ibid 16.
38
OECD, ‗Treaty Characterisation issues arising from e-commerce‘, (February 2001)
Annex 2 (n 23).
39
Dale Pinto, E-commerce and Source-based Income Taxation,( Vol. 6 in Doctoral Series,
IBFD, Amsterdam, 2003) 15.
40
Challenges in the Digital Economy: 2014 Deliverable (n 9).
Legal Mirror 248
deals with key business models in e-commerce which may result in BEPS
threats. Therefore, the report considers it important to address the issues
through the other areas of the Action Plan. Moreover, it elaborates that it is
not possible to ―ring-fence‖ the digital sector as a separate sector.
The OECD Tax Force on Digital Economy (―TFDE‖) was established in

September 2013, a subsidiary body of Committee of Fiscal Affairs (CFA).
The main objective of the tax force is to consider the issues in digital
economy and to identify potential measures that can be internationally
accepted. The concerns relating to challenges faced by growth and diversity
in digital economy led to the establishment of TFDE.
The report introduces the concept by discussing the important taxation

principles for a well-functioning tax system. The report takes guidance from
the Ottawa Tax Framework Conditions 1998. Further, it discusses the
common direct and indirect taxes, both domestic and in the context of
treaties. Also, it gives an overview of the direct tax issues and Value Added
Tax (VAT) in digital economy. This report discusses the rules relating to
PE, Controlled Foreign Company (CFC), and potential double taxation of
cross-border income.
5.1 Emergence of new Business Models
The report discusses the new business models resulting from evolution of
Information and Communication Technology as well as the key features of
such business models. Challenges caused by emergence of technologies
such as 3-D printing, robotics, virtual currency also form a part of the
report. Some of the examples of business models disused by the report are41:
41
Challenges in the Digital Economy: 2014 Deliverable, (n 9) Chapter 4.
Legal Mirror 249
Electronic Commerce: This has been explained in the introduction. The

report discusses 3 e-commerce models, namely, B2B, B2C and C2C.
Emerging Payment Services: The report identifies various payment

services such as cash payment solutions, e-wallets and mobile payment
solutions. Additionally, there are other modes recognised such as smart
cards, credit card, and micro-payments etc.42.
App Stores: The increased use of mobile phones and tablets has made way
for the app stores. Application stores take the form of retail platforms
accessible from the mobile device where applications developed can be
purchased or downloaded applications can be used for e-commerce activity.
Online Advertising: Online advertising has certain advantages over

traditional advertisements. Through sophisticated methods, target audience
for the audience can be filtered befitting the parties involved.
Cloud Computing: It refers to online computer services providing

computing, storage and sharing of data, data management etc.
Annex B to the report deals with tax planning structures for the
abovementioned business models.
5.2 Base Erosion and Profit Shifting opportunities in the Digital

Economy
The report identifies various BEPS opportunities developed through

emerging business models and growth in Information Communication
Technology. The report discusses the relation between common BEPS
strategies and digital economy and identifies core elements of BEPS
strategies for both direct and indirect taxes. In the context of direct taxes, the
core issues are:
42
Steffano Korper and Juanita Ellis, The E-Commerce Book: Building the E-Empire (2nd
Edn., Morgan Kaufmann, Massachusetts 2001) 127.
Legal Mirror 250
Eliminating or reducing tax in the market country43: This can be done in

three ways. Firstly, avoiding a taxable presence or operate without PE in the
market country through the use of website and having a digital presence.
Secondly, by minimising the income allocable to functions, assets and risks
in market jurisdictions. The Multi-National Enterprise (MNE) may establish
a PE through a subsidiary but structure its functions in a manner that
generates little profit. Finally, by maximising deductions in market
jurisdictions i.e., use of deductions for payments made to other companies
in the group in the form of interest, service fees etc.
Avoiding withholding tax44: A company may use the benefits of a treaty to

avoid withholding of taxes. A company could use structures by using
companies in the group located in countries with favourable treaty network
with unsatisfactory provisions of treaty shopping raising BEPS concerns.
Eliminating or reducing taxes in intermediate country 45: Companies

may take advantage of preferential regimes in low-tax jurisdiction by
locating their functions, risks and assets in that jurisdiction. In the context of
digital economy, an intangible could be transferred to a subsidiary in a
country, where subsequent income earned through the intangible is subject
to unjustifiably low or no tax because of the preferential regime
Elimination of current taxation of low-tax profits at the level of the

ultimate parent46: The BEPS strategies used in the market country can also
be used in the tax jurisdiction where the ultimate parent company is located
or where the headquarters of the company are located.
43
Challenges in the Digital Economy: 2014 Deliverable (n 9) p 102.
44
Ibid 104.
45
Ibid.
46
Ibid 105.
Legal Mirror 251
The report concludes that these items may create unique challenges with
respect to other BEPS actions such as CFC Rules (Action 3), artificial
avoidance of Permanent Establishment Status (Action 7) and transfer
pricing (Actions 8-10).
5.3 Identification of broader tax policy challenges raised by digital

economy
The report identifies some broader tax policy challenges, other direct and
indirect taxes challenges, and the manner in which these challenges can be
addressed in the digital economy. The following challenges are discussed in
the report47:
Nexus: Businesses have been able to avoid taxes through the tax treaties by
carrying out business in market jurisdiction without a physical presence.
Consequent to the growth in ICT, this avoidance can be done on a greater
scale. This may enable companies to operate in a market jurisdiction
without being subject to tax i.e. by avoiding the PE threshold. The report
discusses that the businesses may artificially move profits from market
jurisdiction disrupting the link between taxation and economic activity.
Data and Data Gathering: An enterprise may generate significant income

from gathering data in a jurisdiction, even though the factors for tax
computation are in some other jurisdiction. These factors include functions,
assets and risks. The data may be gathered in a jurisdiction using technology
and resources of another jurisdiction causing BEPS issues.
Characterisation of Income: The Commentary on OECD Model Tax

Convention does not provide characterisation for emerging technologies
such as 3-D printing and cloud computing. There is a requirement of clarity
47
Ibid 125, Chapter 7.
Legal Mirror 252
as to whether the payment has to be treated as business profits, technical

fees, royalties, income from services or rent.
Collection of Value Added Tax: Two important BEPS issues are

identified, firstly, transactions such as imports of low value of goods which
are exempted in certain jurisdictions. Secondly, where no or unduly low
amount of VAT is levied, primarily on private consumers, due to
complexity in enforcing VAT payment on trade in service. This adversely
affects the VAT revenues of the country where the tax is avoided i.e., no
VAT is levied.
5.4 Potential Options to Address Raised by the Digital Economy
The report identifies potential options to reduce BEPS issues so as to reduce

stateless income. The report looks into the options to tackle tax avoidance in
market and resident jurisdiction by digital players. The report identifies the
following options with respect to income taxes.
Modification of PE exemptions: The first option deals with altering of PE

exemptions involving preparatory or auxiliary activates in a business which
are provided in the Model Tax Convention.48 Some activities treated as
preparatory or auxiliary could be the core activity of that business and
hence, there should be no exemption.
New Nexus Based on Significant Presence: A new nexus option is

considered for businesses which are conducted wholly digitally. A test for a
―significant digital presence‖ is laid down, which should be required for a
taxable presence in the economy of the jurisdiction.
Certain factors including, number of contracts signed in the contract;

country of consumption for the digital goods and services; the country
48
Commentary to Article 5 of the OECD Model Tax OECD Model Law Tax Convention
with respect to Taxes on Income and Capital, p 111-112, Para 42.7
Legal Mirror 253
where the clients make their payments from and the location of a branch of
a company carrying out secondary functions should be considered for a
determining the ―significant digital presence‖ of a company.
Replacing PE with Significant Presence: This option relates to completely

replacing the PE with the significant presence test. The factors
aforementioned (with respect to significant presence) need to be considered
for this taxing income in a country where there is significant presence of
activities.
Withholding of Taxes in Digital Transactions: The report introduces

withholding of taxes on payments made by residents for digital goods or
services provided by a foreign company as an option to tackle BEPS issues.
Withholding of taxes could be used as a sole provision to tackle BEPS
issues replacing the present PE status rules. In order to ensure that they are
taxed on net basis, taxpayers could file return with respect to withholding of
taxes.
Introduction of Bandwidth or “Bit” Tax: Bandwidth tax is a new concept

discussed as an option to revolutionaries taxing the digital transactions. The
Bandwidth or the Bit tax will be levied as per the use of bandwidth in a
particular jurisdiction over and above a set threshold limit. It is important
that the bit tax should creditable against the income tax, in order to ensure
the neutrality between traditional and digital transactions.
5.5 Comments by Confederation of Indian Industry (CII) on the Tax

Challenges of the Digital Economy
The BEPS concerns were first highlighted by the G20 countries and India
being one of the members; it has an important role to play. CII raised some
concerns with regard to the issues and came out with the recommendation in
Legal Mirror 254
the OECD discussion draft49 on this subject. CII is a non-government, non-

profit body working closely with the government on policy issue to enhance
efficiency and is linked with more than 9,000 companies through indirect
membership.
CII contended that the removal of exemption relating to preparatory and

auxiliary activities for determining the PE status, as pointed out by the
discussion draft, would largely affect the businesses. They recommend that
the same should not be done as merely purchasing merchandise would
constitute a PE50.
The discussion draft discusses a principle of ―significant digital presence‖

for tax purposes. CII opposes the concept as the taxability should be based
on settled principles of functions, assets and risks and not on the basis of
users. Further, it would against the principle of equity, as a result of which,
the transaction which are not taxable in traditional businesses will be taxable
when the transaction is done digitally.
6. Conclusion
The increased importance of transactions in e-commerce has brought into
light, the taxation problems associated with it. It has become important to
address the issues of double taxation and avoidance of taxes and how the
income is to be characterised. The report by the High Powered Committee
highlighted the vast differences between the accepted international norms
and tax treatment in India. The inconsistencies are not limited only to
characterisation of income. The definitions of ―royalties‖, ―business
connection‖ vis-à-vis ―permanent establishment‖, and ―fee from technical
49
OECD, ‗Comments Received on Public Discussion Draft: BEPS Action: Addressing the
Tax Challenges of the Digital Economy‘ (April 2014) <
http://www.oecd.org/ctp/comments-action-1-tax-challenges-digital-economy.pdf> accessed
19/10/2015.
50
Ibid 124-130
Legal Mirror 255
services‖ in the Income Tax Act are not the same as what is followed as
international norms. Therefore, the implications of the definitions on the
characterisation also vary. Henceforth, it becomes pertinent to narrow down
these vast differences with regard to characterisation of income to ensure
that the non-residents in India do not face enormous difficulties to comply
with laws in India.
The Action on the ―tax challenges in the digital economy‖ is a welcoming

step to address and bring the nations together to evaluate the potential
options. Any tax system must be in consonance to the widely accepted and
recognised in Ottawa Tax Framework Conditions. The principle of
neutrality requires that the income economically similar should be treated
equally, regardless of how it is earned, whether through digital means or
conventionally. The principle of neutrality is important so that both the
channels of businesses have equity in tax liability. Therefore it is important
to consider the options which do not bias or give undue advantage to the
businesses conducted through digital channel. Further, the ease of collection
of taxes must be considered when a potential option is evaluated.
The Action aims to bring a change in factors which determine the PE status,
moving away from the principles in the OECD Model Tax Convention. The
Report discusses the possibility of removing the permanent establishment
exemptions for preparatory and auxiliary activities. It is pertinent to mention
that such removal would hugely affect businesses, as the activities which are
not primary to the business would be enough to constitute a PE for tax
Purposes.
The follow-up work is important in determining the potential of the options

to address the BEPS issues of nexus and data collection which require
further evaluation. Further, the options addressing concerns relating to
taxing the transactions conducted through the emerging models such as
Legal Mirror 256
cloud computing, app stores and the provisions relating to payment option
etc. need to be evaluated. G20 countries are actively participating with
OECD member countries in deliberations and it is essential to achieve a tax
system which is acceptable to businesses (irrespective of the channel used)
in the globalised digital world.
Legal Mirror 257
Case Commentary
DARGA RAM @ GUNGA VERSUS THE STATE OF
RAJASTHAN
Subhalagna Choudhury*
Note: This is with reference to the case Darga Ram @ Gunga versus the
State Of Rajasthan of whose final verdict was passed by the Apex Court on
the 8th of January, 2015. A case of brutality in the truest sense of the term,
is portrayed here, but the present progressive take of the Indian judiciary on
the conflict of a juvenile with the law is what we shall look into.
Summary:
On the 11th of April , 1998, a ‗Jaagran‘, that is a night long prayer meet,
was organised by the complainant .Relatives of the complainant and the
complainant himself had assembled there and this included the seven year
old baby Kamala, who had fallen off to sleep along with the other children
present in the jaagran , close to a place where the event was held. When the
complainant, who was also her father found her missing, he assumed that
she must have been in any of the relatives‘ place and searched accordingly.
But Kamala couldn‘t be traced. Her body was found at some distance from
the village, in a naked condition with injuries on her private parts and her
head smashed with a stone lying nearby. The post mortem report further
satisfied the court as it clearly stated that the face of the seven year old girl
was crushed to death, there was profuse bleeding from the right ear, fracture
in the skull, dried seminal traces on her left and right thigh and her hymen
was ruptured. Rajendra Prasad who investigated the case and who was also
a witness there, further retrieved blood stains on the clothes of the deceased
including two hair recovered from her private parts. Further the traces of
blood, both on her clothes and the stone used for crushing her face matched
Legal Mirror 258
with that of her own blood group—group A. In this particular case, there
was enough evidence to support the prosecution. A major evidence was that
the appellant had multiple injuries on his private parts including the elbow
joint, the knee joint, and his sexual organ. The appellant did not have a valid
explanation to any of his injuries, thus sustained. Thereby, after a careful
analysis by the Trial Court , it was held that the seven year old baby kamala,
was raped and murdered by the appellant. The appellant was tried and
convicted for offences, in 2004 under ‗section 375‘ and ‗section 302‘ of the
IPC. For the former he was sentenced to 10 years of imprisonment and a
fine up to Rs. 1000 and for the latter he was sentenced to life imprisonment
besides a fine of Rs. 3000.
Issue that was raised before the Supreme Court:

The appellant was a juvenile at the time of commission of the offence and
should be entitled for the benefit of the Juvenile Justice Care and Protection
of The Child Act, 2000.
Evidence in the light of the above argument before the court:

The appellant was deaf and dumb and had never attended any kind of formal
education due to which, there was no official record of his age. A birth
certificate could also not be furnished by him. The court thus directed the
principal of Government Medical College Jodhpur, to set up a
board of doctors, for medical examination that included radiological
examination to determine the age of the appellant. In the report obtained
from the medical board, it was concluded that the age
of the victim was somewhere around seventeen years at the time of
commission of the offence. This estimated data was obtained after detailed
radiological diagnosis of the appellant.
Legal Mirror 259
Verdict:
The Supreme Court of India observed that the appellant being a juvenile
could therefore be protected by the Juvenile Justice Care and Protection of
The Child Act, 2000, and was thus set free.
A converse form of ex post facto law was observed in this particular case.
Such a form commonly known as Amnesty Law decriminalises certain acts
or alleviates the grave punishments for offences that at present times come
in the ambit of protection.
Critical Note:
In the Asian countries, juvenile delinquency is essentially an urban
phenomenon. The causes behind this range from cultural to sociological
factors. Specifically the disparity in the moral and social growth between
the urban and rural people contribute to the rising rates of crimes among the
juveniles. The above case was no exception to this observation. Juvenile
delinquency and the problems related to it have been faced by all societies,
all over the world. However in the developing countries the problem is all
the more formidable. The process of development has brought with itself a
socio-cultural upheaval affecting the age old traditional ways of life in the
congenial rural milieu. Juveniles have been observed to be most affected
under such conditions. The above case was testimony to this fact. The
appellant being deaf and dumb was in all probability a neglected individual
as a child. Records revealed that he was not even exposed to any form of
education as a child. The defence that he was a special child seemed not to
stand anywhere before the heinousness of the offences that he had
committed, while he was convicted in 2004. Though there is an uproar to
punish the juveniles involved in such brutal cases, but critically speaking,
this judgement highlights the fact that the background of a delinquent is a
very important sphere of assessment. In India, children especially of the
Legal Mirror 260
rural areas are raised up against a more orthodox and male chauvinist
backdrop. Inferiority of women to men is what they have witnessed as
children. Offences like rapes, molestation emerge from such a bend of the
mind. Labelling the juvenile delinquents as criminals and penalising them
does not reach the ultimate objective of the society in terms of qualitative
development. In fact the effect might be adverse. Another aspect is that
treating such cases languorously further intensifies the gravity of the
situation. An appeal that made in 2004, was finally adjudged in 2015. The
highest legal authority of India or the Supreme Court in other words, should
treat such cases with expedition by virtue of which constructive evolution
could be achieved in such ‗labelled criminals‘ after taking corrective
measures, only to help them emerge as responsible individuals of the
society.
Government measure in light of such cases: The juvenile justice bill was
passed in December 2015. The bill stated that children who aged between
16 and 18 and are accused of heinous crimes like rape, murder, shall be
assessed in terms of his or her background. This would include a thorough
assessment and an analysis of the child‘s mental and physical capacity to
commit such offences while understanding the nature of the committed
offence and the circumstance under which the child commits it. The child
can be punished as adults if convicted but cannot be taken to serve a life
long imprisonment or death penalty, without the possibility of any release.
Legal Mirror 261
MARITAL RAPE - A VICTIM LESS CRIME IN INDIA

Sakshi Digvijay*& Ruchira Bali**
Marriage is for women the commonest mode of livelihood, and the total
amount of undesired sex endured by women is probably greater in marriage
than in prostitution.
BERTRAND RUSSELL, Marriage and Morals
Introduction
Marital rape is a victim less crime in India and all over the world, barring
some countries. It is the most general kind of rape which never sought
significant attention of the public in general. It is a very controversial crime
where the victims prefer saying nothing about their sufferings. And it is
tough to decide whether it is rape at all in the strict sense of term. An act
of having sex with one’s own wife without her informed permission in the
most unpleasant manner possible and is not considered to be the
component of the definition of rape in most of the countries leaving some
exceptions aside. Marital rape is considered as a punishable offence in
some of the western countries.
Unfortunately in India marital rape is still not considered as a crime. There

can be many possible reasons for that, one reasoning being the social status
of a women in our society and another can be the belief that marriage is a
sacred affair ,it is presumed that if a woman is married then she should
surrender herself completely to her husband .This issue becomes more
complicated because it is directly related to the conjugal right of a husband
to have sex and cohabitation .But at the same time we cannot avoid the fact
that this act inflicts both mental and physical pain to the victim and the
trauma suffered by a victim is no less than the pain and trauma suffered by
any rape victim. All though in the scenarios of marital rape the dignity of
the victim is not at stake because everything is done behind the door but the
Legal Mirror 262
pain suffered is comparatively more because in this case the person most
trusted gives her the pain of being raped.
Marital rape can be identified by an Act which includes the insertion of an

object in private parts of body like vagina or the anus, all against the
acceptance of the victim to provide her unbearable physical pain or
unwanted sex. Though it is common but still goes unreported and is hidden
behind curtains of marriage.
Questions arising:
● Whether husbands have the right to have conjugal relationship

without the mere permission of their wife?
● Whether criminalisation of marital rape is necessary?
● Why the criminalisation of marital rape is necessary?
● Consequences of criminalising marital rape?
All these questions somehow depend on the extent to which a husband can
enjoy the conjugal rights. Effects of denial to have sex in their relationship.
Impact of forced and unwanted sex on the partner? Effect of marital rape
upon the dignity of a woman and her mental state. Furthermore, there are
chances for misuse of marital rape laws.
The institution of marriage is considered to be a very private thing in our

country. But an act of rape will be considered as rape in all its sense be it by
an unknown or a rape by a husband. It is a very personal as well as
traumatic experience. Every individual has his own perspective regarding
this issue. Marital rape disturbs the very core of marriage and the marital
relation because it can be considered in the context of abusive relationship.
People here still believe that by the institution of marriage a woman
becomes a mere possession of her husband.
Legal Mirror 263
Few researchers also say that the major reason behind the whole thing was
establishing sexual right and superiority over a woman. When this was not
enough religion came into play and dominated the core of marital
relationship. Endearment and care, which are the most important element of
marital relationship came last. It is true that marriage always gives the
right of venereal relations, even society holds such intercourse justified and
believes that in order to live a happy marriage life both the partner needs to
satisfy the other partner‘s desire be it sexual or some other kind of desire.
But still we shouldn‘t undermine the fact that marriage is beyond a
regulated sexual desires.
The United Nations has lucidly stated that violation of the dignity of a
woman should be considered as the violation of the basic human rights. To
reiterate the fact that it has promulgated various treaties, conventions in this
regard .UN also reinforces the prohibition towards gender based violence
and so marital rape falls under such category without fail. Some of the laws
introduced by the UN area) Convention on the Elimination of all forms of
Discrimination (which requires states parties to combat sex-based
discrimination through legislation, education and elimination of prejudices
and practices that are based on stereotyped roles),General recommendation
19, Declaration on elimination of violence against women,Beijieng
declaration and platform for action etc.
Denial to have sex (without any valid reason) violates the conjugal right of
the other partner hence that partner can claim for divorce and dissolve the
marriage. Conjugal right is not disputed but at the same time conjugal right
to have cohabitation is not exclusive it depends completely on the mutual
consent.
Hence, the dissension arises in deciding the limit to which this right is
needed and should be availed by the people at large. With right comes the
Legal Mirror 264
legal remedy to restore the conjugal right of the person and coercion was
never allowed to exercise this right.
Marital rape questions the very existence of identity of a woman to save

herself from the excessive lust of her spouse. The very base of a marriage is
to satisfy the conjugal rights that are the biological needs of an individual
and not their unreasonable and violent desires which can cause physical
abuse and mental trauma to the other spouse. It is also a clear violation of
the Right to Life provided under Article 21 of our Indian Constitution.
Present stand of India against marital rape
The initial step against these kinds of crime will be to accept the fact that
marital rape exists in our very traditional and religious society where
women are worshipped and regarded as Goddesses.
―Approximately every 6 hours , a young married women is burnt or

beaten to death ,or driven to suicide from emotional abuse by her husband
.The UN population fund states that more than 2/3rds of married women
in India, aged between 15 to 49 have been beaten ,raped or forced to
provide sex . In 2005, 6787 cases were recorded of women murdered by
their husband or their husbands’ families. 56% of Indian women
believed occasional wife beating to be justified‖.1
Not surprisingly, thus, married women were never given any relief from
marital rape in India. Present laws give absolute immunity to the husband in
this crime because till now we don‘t have any strict laws against marital
rape and thus no criminal charges are imposed against the husband of the
victim.
1 R C JILOHA ,‘ Rape: legal issues in mental health perspective‘

Legal Mirror 265
According to the latest study approximately 10% to 14 % of married women

are raped by their partner. Section 375 of the constitution deals with the
provision of rape which says ―sexual intercourse by man with his own
wife, the wife not being under 15 years of age , is not rape‖.22
This section deals with the rape in a very narrow sense because an act of
rape within a marriage is considered valid only when the wife is less than 12
years of age, if she is between 12 to 16 years then also an act of rape will be
recognised but the punishments being set for this offence is mild and not
very severe.3
The Protection of Women from Domestic Violence Act, 2005 (passed in
2005 and came into force in October 2006) created a civil remedy for
marital victims but it did not criminalize marital rape. It is the need of the
hour for the legislation to develop that law which would effectively tackle
marital rape and even criminalizes it.
The Criminal Law (Amendment) Act, 2013 which provides for amendment
of Indian evidence act, Code for criminal procedure and laws relating to
sexual offences is a major yet insignificant step undertaken by the
legislature to tackle the crimes related to sexual harassment but not enough
has been done in terms of rape. More has to be done in this regard.
In 2006 in total 100 countries criminalised marital rape but unfortunately
India was not there at that time and still in 2015 we don‘t have any laws
against marital rape.
Why marital rape laws are not easy to be enforced in India?
● Illiteracy: More so often people specially in the rural areas tend to

lack knowledge about the harmful effects of such an act , they are
2 Shivani Garg,‘ Marital Rape‘, September 4 2012

3 Priyanka Rath , ‗Marital Rape and the Indian Legal scenario‘, ‗Indian Law Journal Issue
2007‘
Legal Mirror 266
unaware of constitutional and fundamental rights which are

enshrined under Seventh Schedule of our Indian Constitution .Even
if they are aware of those right they are ignorant of mechanisms to
redress their concerns.
● Social customs: Since time immemorial social customs have
dominated every sphere of one‘s life in the society, so marital
relations being no different, a man is encouraged to display his
masculinity through the practice of cohabitation even if it means
using force and aggressive means against the will of the wife, for
him the will of the wife does not matter as the society has inculcated
into his thoughts about the male superiority over female evil idea.
Both social activities and the codes of law mutually promote the
denial of women‘s sexual agency and bodily integrity.4
● Poverty: Majority of the time affected parties fail to undertake the
cause of their problem to the official authorities either due to lack of
resources or are scared by the financial prowess/ position of the
rapist.
● Religious belief: For centuries together women have been subjected
to sheer no of violations of their rights with the religious sanctions
behind them. For e.g.: They have been subjected to polygamy,
domestic violence, sexual slavery, foeticide etc. In Fact to uphold
such a view of masochism prevailing in marital relationships,
recently India‘s Minister of State for Home Affairs, Haribhai
Parathibhai Chaudhary stated that marriage is a sacrosanct
institution. He argued that `the concept of marital rape, as
understood internationally, is not suitable in the Indian context, due
to illiteracy, poverty, social customs and values, religious beliefs and
4
Saurabh Mishra and Sarvesh Singh, ‗Marital Reality and Need for Criminalization‘ ,
(2003) PL WebJour 12
Legal Mirror 267
the fact that Indian society treats marriage as a sacrament‘. 5 The

Minister, like many others, upholds the notion that a wife by the
virtue of marriage is duty bound to submit silently to sexual whims
and desire of her husband and therefore she must willingly subject
her body to being ravaged without complain. According to this
philosophy, men are officially licensed to rape their wives with
impunity.
● Belief that introducing marital rape laws in India can destroy the
whole institution of marriage and family system in India.
Global Perspective:
● In New York, New Jersey and Connecticut there is quite strict rules
against marital rape and husband can easily get prosecuted for raping
his wife.
● In year 1975, South Dakota took the first step towards making marital
rape a crime. And now in 25 states marital rape is considered as a
crime. Marital rape is like a battle which women are trying to fight from
decades and where triumph is hardly achieved .Furthermore, about 9.5
% of women in the US delineate about being raped by current or former
romantic partner according to a 2011 report published by Centres for
Disease Control and Prevention.6
● The United Kingdom recognized the crime of marital rape in the
prominent case of Regina Vs. R (1991).The ruling passed by Chief
Justice Hale in 1736 which pronounced that a husband cannot be guilty
of rape committed by himself upon his lawful wife on the grounds that
marriage itself acts as a consent for as long as couple are married, was
5
Ministry of Home Affairs (2015) Women Subjected to Marital Rape, Government of
India, Press Information Bureau dated April 29,
http://pib.nic.in/newsite/PrintRelease.aspx?relid=119938
6
http://www.cdc.gov/violenceprevention/pdf/nisvs_report2010-a.pdf#page=47
Legal Mirror 268
overturned .In Regina v R7 (1991) the husband had been charged with
rape upon his wife and actual bodily harm (ABH). The wife had left to
live with her parents but there was no formal separation, although the
wife had consulted solicitors. The prosecution claimed that the husband
had broken into her parents‘ home and raped her. The defence argued
that there was no such offence, because of the marriage exemption. The
case was appealed until it reached the House of Lords. The judgment
was given by Lord Keith of Kinkel who said that the contortions being
performed in the lower courts in order to evade the marital rights
exemption demonstrated how absurd the rule was. He said that, the
marital rights exemption was a ―common law fiction‖ which had never
been a true rule of English law. Kinkel concluded that ―the fiction of
implied consent has no useful purpose to serve today in the law of rape‖
R‘s appeal was accordingly dismissed, and he was convicted of the rape
of his wife.
● The congress of Mexico introduced a legislation which recognizes
domestic violence as a crime. If proven guilty marital rapist can get a
punishment of imprisonment up to 16 years.
● Similarly, in Sri Lanka marital rape has been recognized as a crime
after the recent amendments though it is only applicable to judicially
separated partners and so there is a great probability that they will make
strict laws for marital rape even in the context where the partners are
not separated. 8
● Many countries like Albania, Algeria, Australia, Belgium, Canada,
China, Denmark, France, Germany, Hong Kong, Ireland, Italy, Japan,
Mauritania, New Zealand, Norway, the Philippines, Scotland, South
Africa, Sweden, Taiwan, Tunisia, the United Kingdom, the United
7
R v R [1991] 3 WLR 767 House of Lords
8
2003 PL WebJour 12 , ‗Marital Rape -Myth , Reality ,and Need of Criminalization‘ ,
Saurabh Mishra and Sarvesh Singh
Legal Mirror 269
States, and recently, Indonesia recognise Marital rape and they do not
differentiate between a Rape by a stranger and rape by a husband.
● Even a Religiously centered country like Saudi Arabia has passed a law
to combat domestic violence and other kinds of abuse both at home and
workplace in 2013.Which is meant to fortify every citizen but precisely
accentuating on the safety and protection of vulnerable groups like
women, children, and domestic workers. It makes both somatic and
emotional perversion easier to bring a suit and it is a step in the correct
direction-but the law has a certain downside to it .It declares the
punishment for such physical and sexual violence of minimum one
month and maximum of one year and has also expressed the fine for
the same up to $13,300 .judges have been granted the authority to
double the punishment for repeaters. However, the legislation has failed
to mention about marital rape9 which is clearly a sign indicating the
need for further reform for empowerment of women especially in
marital relations.
Recommendations:
● First of all it should be categorised as a severe offence just like any

other Rape.
● We can say that at least marital rape is the extension of domestic
violence so the punishments of domestic violence can be applied on
the marital rape.
● Section 509 of IPC should be amended so as to provide stringent and
higher punishment for commitment of act as inscribed under the act
with sexual intent.
9
Stephanie Ott , CNN,‘Human Rights Campaigners welcome Saudi Arabia‘s law on
domestic violence‘, September 2 2013
Legal Mirror 270
● Criminal Law of our country should be amended to include terms which

have been recommended by Varma committee like: marital rape, reduction
of age of consent etc.
● There is strong negligence amongst people regarding the dangers of marital
rape .Various sections of societies consider this topic as a taboo and so the
victims‘ families hush it down in order to avoid embarrassment in the
society. Government should join hands with the International organisations
like the United Nations, World Health Organisation which would help them
in imparting education about the evils of marital rape.
● Speedy filing of the marital rape cases should be encouraged.
● Special women officers should be involved in investigation so as to provide
moral support and so as to encourage the victim women to speak out all the
details without hesitation.
● Curriculum of the education system should be devised in such a manner
habit of respecting all is inculcated from the beginning stages itself.
● Under the Indian Evidence Act (IEA), when confirmed that a victim denied
to the sexual Act, the court shall presume it to be so.
● The term ‗rape‘ should be replaced with the term ‗sexual harassment‘.
Conclusion
In the end the authors hope that the this article is able to make an impact on
the lackadaisical attitudes of the people prevailing in our country relating to
equality and equitable treatment of both the spouses in a marital relationship
and also emphasize on the need for reduced pressure on the girl to carry out
carnal relations with the consort. We would also like to urge the
policymakers globally contribute and deliberate upon those set of solutions
which diminish this crime to a satisfactory level and which should be
comprehensive and complementary in nature.
Legal Mirror 271
CAPITAL PUNISHMENT: ANALYSIS OF JUDICIAL

INTERPRETATION
Katiyani Juneja* & Kunal Vinayak**
1. Introduction
“Every saint has a past; every sinner has a future…”
- Justice V.R. Krishna Iyer.
Crime and the mode of punishments correspond to the culture, traditions

and the forms of communities from which they emerge. Various means and
methods have been attempted to curb and control deviance from the
normative behavior in humans since time immemorial. Capital Punishment
was prescribed for various crimes in Babylon at least 3700 years ago. Some
of the ancient society imposed it only for the most heinous crimes and some
imposed it for minor offences. For example, under Rome‘s law in the 5th
century B.C., death was the penalty for publishing ―insulting songs‖ and
disturbing the peace of the city at night. Under Greece‘s Draconian Legal
Code in the 7th century B.C., death was the punishment for every crime.
Beginning in ancient times the executions were frequently carried out in
public.1
The culture of vengeance and violence is quite prevalent in Indian society

and the Indian State continues to be very violent and aggressive. Although
India is a signatory to the International Covenant on Civil and Political
Rights2, and, therefore, is committed to phase out the application of death
penalty instead India expanded its scope under various pretexts. It is
pertinent to note, way back in 1997, India abstained itself when the
1
Retrieved from: http://newindialaw.blogspot.in/2012/11/constitutional-validity-of-
capital.html; Last visited December 23, 2015 10:09 IST.
2
1966.
Legal Mirror 272
Commission on Human Rights of United Nations passed a resolution calling

for an end ―to judicial executions in the world.‖ Being emboldened by this
public perception, the legislative wisdom, ruling and opposition has
expanded the scope of capital punishment either by amending laws or by
enacting new laws to provide this punishment in certain cases of rape and
other ‗serious crimes, like ‗terrorism‘ etc3
Over the past year the death penalty has again come into focus as a major
public policy and political issue, catalyzed by several high-profile events.
The purpose of this study is to analyze the disparaging principle of Capital
Punishment put to depreciating practice. It is an attempt to admeasure the
parameters and scope of death penalty. The paper begins with an overview
of various for and against judgments given upon the Capital Punishment in
various Indian courts. Then it further seeks to investigate the global outlook
towards the abolishment of Capital Punishment and arguments for and
against its ban. Lastly it provides a utilitarian alternative to Capital
Punishment for the retentionist nations like India, which are appearing to
irresolute to ban it altogether. Thus this research paper, therefore, is timely
and much needed to make the public debate on this much contested theme to
be more informed, robust and reasonable about the same.
2. Capital Punishment in India: An Overview
Criminal Law reflects those fundamental social values expressing the way
people live and interact with each other in the society. It uses the ‗stick‘ of
punishment as a means of reinforcing those values and securing compliance
3
Sujato Bhadra, Indian Judiciary and the Issue of Capital Punishment,―Café Dissensus,‖
2014.
Legal Mirror 273
therewith. It is the sanction imposed on an accused for the infringement of

the rules and norms of society.4
This chapter will be dealing with various judicial pronouncements in India

relating to Capital Punishment and how we are leading towards the abolition
of this deterrence. India‘s thinking on the Capital Punishment is still quite
mixed up. It is not just a debate of constitutional validity of the death
penalty but also the moral and social aspects that are related to this
controversial topic that have lead to extensive confusion in this respect.
Keeping away the question of law, the question of Capital Punishment has
to take into considerations factors such as public sentiments as well as
struggle with the moral issue of the ―eye for an eye‖ principle.
2.1 CAPITAL PUNISHMENT : ARGUMENTS AGAINST THE ABOLITION
In India, crimes punishable by the death sentence include murder, abetting

the suicide of a minor or insane person, gang robbery with murder, waging
war against the nation, and abetting mutiny by a member of the armed
forces. If suppose the death sentence is completely removed, the fear that
comes in the mind of people committing murders will be removed. All
sentences are awarded for security and protection of society, so that every
individual may live in peace. Capital punishment is needed to ensure this
security. Also keeping murderers alive in the prison greatly complicates the
work of prison administration.5
The latest execution that took place in India was on July 30, 2015 hanging
of Yakub Memon, who was convicted of financing the 1993 Mumbai
bombings. Yakub Abdul Razak Memon v. State Of Maharashtra6 Supreme
4
K.D. Gaur, Textbook on The Indian Penal Code, 4th edition, Universal Law Publishing
Co., Delhi 2010, p.96
5
Ceylon Report, Summary of Arguments ―Prison administration‖ p.40.
6
Criminal Appeal No.1728 of 2007.
Legal Mirror 274
Court in this case while deciding the appropriate punishment took into
consideration two mitigating factors firstly the involvement of the accused
as in ―the commanding position‖ of the act and Secondly crime committed
with ―utmost gravity.‖ Henceforth upon these special reasons warranted
death penalty to the accused. Yakub's execution compels India as people to
revisit the issue whether death penalty is sustainable in a modern
democracy.
Prior to this, the last three executions to take place in India were the
February 8, 2013 hanging of Muhammad Afzal, who was convicted on
questionable evidence of plotting the 2001 attack on India‘s Parliament
which shook the entire nation and everyone was be satisfied when capital
was awarded to him. Then in the case of Mohammad Ajmal Mohammad
Amir Qasab alias Abu Mujahid v. State of Maharashtra7 hanging of
gunman Mohammad Ajmal Amir Qasab which took place after long
discussions and debates who was convicted of 2008 Mumbai attack was
finally hanged on November 21, 2012, and the hanging of Dhananjoy
Chatterjee in 2004 for the murder and rape of a 14-year old girl.8 In this
case the Court opined that, ―the measure of punishment in a given case must
depend upon the atrocity of the crime.‖9 Moreover, recently in the case
Vikram Singh @ Vicky v. Union of India10 the Supreme Court has upheld
death sentence for kidnapping for ransom and has said that a surge in such
incidents by criminals, terrorist organization necessitates a stringent
punishment. In a three-judge bench headed by Justice T. S. Thakur said,
"Given the background in which the law was enacted and the concern
shown by Parliament for the safety and security of the citizens and the unity,
7
(2012) 9 SCC 1.
8
Retrieved from: http://www.deathpenaltyworldwide.org/country-search-
post.cfm?country=India; Last visited December 23, 2015 04:55 IST.
9
Dhananjoy Chatterjee v. State of West Bengal (1994) 2 SCC 220.
10
Criminal Appeal No.824 of 2013.
Legal Mirror 275
sovereignty and integrity of the country, the punishment prescribed for those
committing any act contrary to Section 364A Indian Penal Code cannot be
dubbed as so outrageously disproportionate to the nature of the offence as to
call for same being declared unconstitutional,"11
Hence to conclude that Capital punishment acts as a deterrent in the society

and to protect the citizens it is still required. It surely serves as a ferocious
warning to the potential criminals. Moreover the punishment should bear a
just proportion to the crime. Therefore, capital punishment is the only fit
punishment for those who have deliberately violated the sanctity of human
life.12
2.2 CAPITAL PUNISHMENT: ARGUMENTS IN FAVOR OF ABOLITION
A country like India which boasts about its democratic credentials, cannot
on any grounds justify that death penalty is the suitable solution for any
crime committed by its subjects. It is generally perceived that Capital
Punishment is the vital method for intimidating or reforming an offender.
No child is born as a criminal.13 The factors that instigate a person for
committing a crime include social, political or psychological factors. The
purpose of imposing punishment is for reforming the criminal. Nearly ‗160
countries‘ Member States of the UN, have almost abolished death penalty in
practice. The United Nations Secretary-General Ban-Ki-Moon categorically
stated that the death penalty has no place in the 21st century, especially in a
civilized democracy. October 10th every year is observed as World Day
against Death Penalty.
11
Retrieved from: http://www.ndtv.com/india-news/death-sentence-for-kidnapping-not-
outrageous-says-supreme-court-1210048; Last visited December 23, 2015 10:55 IST.
12
Ceylon Report, Summary of Arguments, ―Life for a Life‖ p.39.
13
C. Ganesh Pandian, ―Death penalty- The Indian Scenario,‖ Selected Essays on Death
Penalty: Contemporary Issues, 2013.
Legal Mirror 276
2.2.1 Trends in Legislature and Judiciary towards abolition of Capital

Punishment
The trends of the legislature and judiciary in recent times have been moving
towards the abolition of capital punishment. Efforts have been made by the
Parliament in 1956, 1958 and 1962 to abolish capital punishment but have
not been completely successful. Before the 1955 amendment to the Code of
Criminal Procedure, the judge had to record his reasons for not inflicting the
death penalty. In the amended sub-section (3) to S. 359 of the Cr. P. C. it is
no longer obligatory to record reasons for imposing the lesser penalty. By
virtue of S. 235 (2) of the Cr. P. C. which provides for hearing on the
question of sentence, the incidence of death penalty can be minimized.14
Also at a glance at the relevant clauses of The Indian Penal Code (I.P.C)
(Amendment) Bill, 1972 the legislative trend is in tune with the new judicial
trend against death penalty. It provides for life imprisonment as the
punishment for murder and death penalty only as a proviso for aggravated
forms of murder. Likewise, S. 307 of the I.P.C. is proposed to be amended
introducing life imprisonment as an alternative for death penalty.
Similarly, the judicial trend has also been gradually moving towards the
abolition of death penalty. In Ediga Anamma v. State of Andhra Pradesh15,
the Supreme Court took into consideration the criminal‘s social and
personal factors, her femininity and youth, her unbalanced sex life, her
expulsion from the conjugal home, her being the mother of a young baby
and held that these facts and circumstances tend towards the award of life
imprisonment rather than death sentence.
14
Areti Krishna Kumari, Death Penalty New Dimensions, The Icfai University Press,
Hyderabad, 2007, p.66.
15
1974 AIR 799
Legal Mirror 277
Also the judgment of State of U. P. v. Rajendra Prasad16, represents the

most ambitious judicial attempt towards the abolition of death sentence in
India where, in all 3 appeals, death sentence was commuted to life
imprisonment. The Court opined that the special reasons necessary for
imposing death penalty must relate not to the crime but to the criminal. In
spite of the crime being shocking, the criminal may not deserve death
sentence. The correct approach is to read into S. 302 of the I. P. C. and S.
354 of the Cr. P. C, the human rights and human trends in our Constitution.
In the landmark decision in Bachan Singh v. State of Punjab17 the Supreme

Court categorically laid down that death sentence must be applied only in
the rarest of rare cases life imprisonment being the rule and death sentence.
Hence, the Supreme Court has restricted the award of death penalty to rare
occasions. Thereafter In Mithu v. State of Punjab18, the Supreme Court
struck down S. 302 of the I. P. C. as unreasonable and arbitrary on the
ground that it left no discretion to the judge, making death sentence
mandatory. Also in the case of Santosh Bariyar v. State of Maharashtra19,
the Apex Court observed that since the definition of Rarest of Rare cases
differs from one judge to another, it is to be proved by the prosecution by
leading evidence that there is no possibility of rehabilitation, and ―life
imprisonment will be futile and serves no purpose‖ whatsoever. If the
present judicial trend continues, then death penalty may soon become a
completely redundant form of punishment.
Indian Former President late APJ Abdul Kalam acknowledged that one of
his most difficult tasks during his tenure was deciding who deserved mercy
or capital punishment. According to a study conducted during his tenure at
16
AIR1979 SC 916
17
AIR 1980 SC 898
18
AIR 1983 SC 473
19
CRIMINAL APPEAL No. 1478 OF 2005
Legal Mirror 278
Rashtrapati Bhavan, all pending cases of capital punishment had a socio-

economic bias; the death penalty was mostly given to the poor.20
The Law Commission of India in its 262nd report has recommended

abolition of death penalty for all crimes other than terrorism related offences
and waging war against the state. Chairman of the Commission Justice A P
Shah said, ―in the last decade the Supreme Court has on numerous
occasions expressed concern over the arbitrary sentencing in death penalty
cases and The Apex Court has noted that it is difficult to distinguish cases
where death penalty can been imposed and where the alternative of life
imprisonment can be applied. Though the ultimate goal is absolute abolition
which could be brought about through a moratorium or law, the
commission has suggested that a debate on death for terror be left to
Parliament.‖ But the recommendation by 10-member panel was not
unanimous with a few supporting retention of capital punishment. Three of
the commission‘s 10 members, did not sign the report and submitted dissent
notes, while the signature of a fourth with concerns could not be obtained.21
2.3 Clemency and issues pertaining to Capital Punishment.
Abraham Lincoln said, ―I have always found that mercy bears richer fruits
than strict justice.‖ A pardon reaches both the punishment prescribed for the
offence and the guilt of the offender and when the pardon is full; it releases
the punishment and blots out the existence of the guilt so that in the eye of
law the offender is as innocent as if he had never committed the offence.22
The concept of pardon today is no longer an act of grace but is enshrined in
the constitutional scheme. The State and Central Governments have powers
to commute death sentences after their final judicial confirmation.
20
Gurdhyan Singh & Aratrika Choudhuri ,―Why we need to abolish the death penalty‖, The
Tribune, August 26, 2015 p.9.
21
262nd Report on Death Penalty, The Law Commission of India, August 2015.
22
Garland Exp., (1873) 18 L Ed 366.
Legal Mirror 279
Clemency powers in India are enshrined in the Constitution. Article 72 vests

these powers in the President, and Article 161 vests similar powers in the
Governors of the States. In addition to these constitutional provisions, the
Criminal Procedure Code, 1973 in Sections 432, 433, 433A, 434 and 435,
provides for pardon. Sections 54 and 55 of the IPC confer power on the
appropriate government to commute sentence of death or sentence of
imprisonment for life as provided therein.23
2.3.2 Analysis of mercy petitions disposed by Presidents of India
The analysis of mercy petitions disposed by Presidents suggests that a death

row of convict‘s fate in matters of life and death may not only depend on the
ideology and views of the government of the day but also on the personal
views and belief systems of the President.
2.3.2.1 First Phase 1950-1982
During the period 1950-1982, which saw six Presidents, only one mercy
petition was rejected as against 262 commutations of death sentence to life
imprisonment. President Rajendra Prasad commuted the death sentences in
180 out of the 181 mercy petitionshe decided, rejecting only one. President
Radhakrishnan commuted the death sentences in all the 57 mercy petitions
decided by him. President Hussain and President Giri commuted the death
sentence in all the petitions decided by them, while President Ahmed and
President Reddy did not get to deal with any mercy petitions in their tenure.
2.3.2.2 Second Phase 1982-1997
In contrast to the first phase (1950-1982), between 1982 and 1997, three
Presidents rejected, between then, 93 mercy petitions and commuted seven
death sentences. President Zail Singh rejected 30 of the 32 mercy petitions
23
P.S. Narayana, Law of Pardons, Universal Law Publishing Co, New Delhi,2013, p 1 and
36.
Legal Mirror 280
he decided, and President Venkatraman rejected 45 of the 50 mercy

petitions decided by him. Subsequently, President Sharma rejected all the 18
mercy petitions put up before him.
2.3.2.3 Third phase 1997-2007
The third phase i.e. 1997-2007, the two Presidents kept almost all the mercy
petitions received by them from the government of the day pending, and
only two mercy petitions were decided during this period. While President
Narayanan did not take any decision on any mercy petition before him,
President Abdul Kalam acted only twice during his tenure resulting in one
rejection and another commutation. During their combined tenure of ten
years, they put the brakes on the disposal of mercy petitions.
2.3.2.4 Current Phase 2007-present
President Pratibha Patil during her Presidency (2007-2012) rejected five

mercy petitions, and commuted 34 death sentences. The current President of
India, Shri Pranab Mukherjee has thus far rejected 31 of the 33 mercy
petitions decided by him. 24
Henceforth there is a suggestion, that everyone has an inalienable human

right to life, even those who commit murder; sentencing a person to death
and executing them violates that right. To take a life when a life has been
lost is revenge, it is not justice. Indian ideology is based on non-violence.
Indian tradition is based on reformation of the mind and spirit, where it was
the opinion that only God could take away life given by him. Therefore a
murderer should be sent to a penitentiary and there given every chance of
reforming himself. 14 eminent retired judges wrote to the President in 2012,
pointing out that the Supreme Court had erroneously given the death penalty
to 15 people since 1996, of whom two were hanged. The judges called this
24
262nd Report on Death Penalty, The Law Commission of India, August 2015
Legal Mirror 281
―the gravest known miscarriage of justice in the history of crime and

punishment in independent India.‖ 25
3. Capital Punishment : A Global Overview
The right to life is the most fundamental of all human rights. It lies at the
heart of international human rights law. The taking of life is too absolute,
too irreversible, for one human being to inflict it on another, even when
backed by legal process. Where the death penalty persists conditions for
those awaiting execution are often horrifying, leading to aggravated
suffering. Information concerning the application of the death penalty,
including secret trials and executions, is often cloaked in secrecy. And it is
beyond dispute that innocent people are still put to death. The United
Nations system has long advocated abolition of the death penalty. Yet the
death penalty is still used for a wide range of crimes that do not meet that
threshold.
3.1 Position in USA
The Development in the USA seems crucial to the success of the abolition
movement worldwide. Six US states have recently abolished death penalty,
making a total of 18 non-penalty states.26 Capital punishment was
suspended in the United States from 1972 through 1976 primarily as a result
of the Supreme Court‘s decision in Furman v. Georgia.27 In this case, the
court found that the death penalty was being imposed in an
unconstitutional manner, on the grounds of cruel and unusual punishment in
violation of the Eighth Amendment to the United States Constitution. The
Supreme Court has never ruled the death penalty to be per
25
Ibid
26
Lill Scherdin, Capital punishment A hazard to a sustainable criminal justice system?,
Ashgate Publishing limited, England, 2014 p.5
27
408 U.S. 238(1972)
Legal Mirror 282
se unconstitutional. However Justice Stewart took the view that death

penalty serves a deterrent as well as retributive purpose.
Thereafter in 1976 The Court in Gregg v. Georgia28 upheld a procedure in

which the trial of capital crimes was bifurcated into guilt-innocence and
sentencing phases. At the first proceeding, the jury decides the defendant‘s
guilt; if the defendant is innocent or otherwise not convicted of first-degree
murder, the death penalty will not be imposed. At the second hearing, the
jury determines whether certain statutory aggravating factors exist, and
whether any mitigating factors exist, and, in many jurisdictions, weigh the
aggravating and mitigating factors in assessing the ultimate penalty – either
death or life in prison, either with or without parole.
3.2 Position in the United Kingdom
Around the 17th century Death penalties were one of the most commonly
meted out punishments in the UK. The common law in those days was
called ―Bloody Code‖ because at one point there were up to 220 offences
which were punishable by death, including ―being in the company of
Gypsies for one month‖, ―strong evidence of malice in a child aged 7–14
years of age‖ and ―blacking the face or using a disguise whilst committing a
crime‖. The Murder (Abolition of Death Penalty) Act 1965 suspended the
death penalty in England, Wales and Scotland (but not in Northern Ireland)
for murder for a period of five years, and substituted a mandatory
sentence of life imprisonment. After this even though death penalty still
remained part of the legal framework it was implemented in few exceptional
cases only. Finally on 20th May 1998 the House of Commons voted to ratify
the 6th Protocol of the European Convention on Human Rights prohibiting
capital punishment except ―in time of war or imminent threat of war.‖ In
October 2003 the UK prohibited capital punishment in all cases. The last
28
428 U.S. 153 (1976)
Legal Mirror 283
execution in England was carried out in December 1964. Allen and Evans
were both tried together at Manchester Crown Court in June 1964, for the
capital murder of John West (murder in the course or furtherance of theft).
During the trial, the judge posed the question to the jury of whether it was
Allen or Evans who committed the murder. The jury found both men guilty
of murder, and they were both sentenced to death by hanging. After that the
country has not seen any case of execution though some people were
awarded the death sentence they were all reprieved at a later stage. Thus, we
see the transition in common law from aggressively handing out death
sentences to completely abolishing capital punishment.29
2.3 Recommendations of United Nations to India
The UN Moratorium on Death Penalty (last affirmed in 2012) notes that in

India, trials are lengthy and decades may pass before actual execution of the
verdict is done and those who await execution they have already died a
thousand times because of their anticipation of the final horror. Similarly, in
its 2012 Universal Periodic Review of India, the UN Human Rights Council
recommended that India establish an official moratorium on executions and
move towards abolishing the death penalty. The Council also recommended
that India should commute all death sentences into life imprisonment terms.
However, India did not accept any recommendations regarding the death
penalty, or abide by any international moratorium or resolution that requires
it to eradicate death penalty from its legal order. 30
An outdated argument by India is that each nation has a ―sovereign right‖ to

determine its legal system, and to punish criminals according to its laws.
This is grounded in a false assumption that such a right is absolute. By
29
Retrieved from: http://www.stephen-stratford.co.uk/capital_hist.htm Last visited Last
visited August 23, 2015 05:14 IST
30
Infra note 19
Legal Mirror 284
participating in a global legal system, ratifying treaties and submitting itself

for global monitoring, India's ―sovereign right‖ is fundamentally tempered.
While this argument may sound politically impeccable in a national context
for populist reasons; it displays blatant ignorance of a growing global trend
towards the abolition of the death penalty.
India's stance should not be defined by the actions or beliefs of the accused,
but by the resilience of the human spirit, and diversity of civilizations of this
land, where compassion for all is the foundation of the edifice of progress. It
is high time to turn away from vengeance disguised as deterring
punishment.
4. Conclusion
As a conclusion, it could be said that many countries that have done away
with capital punishment have done so by arguing that it is an inhumane
sentence and violates the very fundamental and basic right human right: The
right to life. The last paragraph of article 6 of the ICCPR was materialized
in 1989 stating that ―nothing in this article shall be invoked to delay or
prevent the abolition of capital punishment in any State party to the
Covenant‖ it was adopted through the Second Optional Protocol to the
International Covenant on the Civil and Political Rights, now it is ratified by
74 States and is also reflected in a number of regional instruments which are
supporting the abolition of the death penalty.
On the other hand those who oppose doing away with capital punishment
take the stand that those who commit violent crimes must get the most
severe punishment so that it serves as a reminder to others. They argue that
keeping criminals alive and feeding on public money after they have
committed crimes is not fair and that they should be handed the death
sentence. Yet, there is no strong evidence the world over that explains the
Legal Mirror 285
threat of death as a punishment works as a deterrent to crimes. On the

ending note, I intend to say that even the debate rages on over the removal
of Capital punishment, I would suggest that there is one basic and simple
truth i.e. prevention is better than cure. Capital punishment in any case has
never proved to be cure for social crimes so perhaps, it is time to take a
serious look at what can be the ways and means of preventing crimes. Easier
said than done but a beginning will have to be made. The basic requirement
is to find and fix gaps in our knowledge. The system should be accountable
and its operation should be as transparent as possible. Attitudes towards
Capital Punishment should be generously considered, its application to
specific criminals or for specific crimes must be made firmly under specific
circumstances. There is a dire need to awaken the public as well as the state
authorities. A decision relating to life of an individual must be taken with all
the due considerations. Clemency and pardoning options should not be
rejected without any strong base, as there are many instances where the
accused regrets his wrongdoings. The capital punishment should justify the
crime committed by individual only then the commitment made to serve
justice to the society by the balance of equality would be achieved.
Legal Mirror 286
SECULARISM AND UNIFORM CIVIL CODE;
PERSONAL LAWS V. CONSTITUTION OF INDIA
Akshay Sharma*
Secularism and uniform civil code
The word secularism means equal treatment to all irrespective to their

religion by the state, as 42nd amendment of our constitution asserted that
India is a secular nation.
The word secularism added into the preamble by the 42nd amendment
which indicate India does not have any official state religion, but the Indian
politics has misinterpretate the meaning of secularism and restricts its
diameter only to talk about minority rights and special provision to them,
it‘s nothing but just an political stunt for their vote bank, due to this India is
lacking the core element of secularism which is ―equality amongst all‖.
Most of the secular people in India are anti-Hindus1
But also people who were secular are in support of uniform civil code, as
the basic reason to add the word secular in preamble is to recognize the
relevance of directive principle to the state policy.
It is, therefore, proposed to amend the constitution to spell out expressively

the high ideals of socialism, secularism and the integrity of the nation to
make the directive principle to the state policy more comprehensive and
give them precedence over those fundamental rights which have been
*IMS Unison University

1
Taslima nazrin.
Legal Mirror 287
allowed to be relied upon to frustrate socio-economic reform for

implementing the directive principle2.
Supporters of this forms of secularism claim any attempt to introduce

―uniform civil code‖ that is the equal law for the all citizens irrespective to
their religion, as Hindus already introduced many reforms into their
personal laws so, now the question arises that, is Muslim were ready to
accept uniform civil code ?
Many of the orthodox groups of Muslims against the uniformity of law as

they had misinterpretate that the uniform civil code violate their religious
rights, also they had argued that they secured their religious rights under
ARTICLE 25 AND ARTICLE 26 of Constitution of India.
Not all but those people who don‘t have knowledge about their religion or
those who had influenced under political pressure were opposing uniform
civil code.
Constitutional view
People who were in support of their personal law and believe that article 25
and 26 gives them absolute rights to profess, practice and propagate their
religion, but these people were not aware about the fact that no fundamental
right is absolute there are some reasonable restriction. As if we talk about
ARTICLE 25 which says subject to public order, morality, health and to the
other provision of this part, all persons are have equal right to practice,
profess and propagate their religion.
Similarly people believes that uniform civil code is in the directive principle
to the state policy and right to religion is their fundamental right so, right to
religion and their personal laws were above the uniform civil code. But
2
42nd amendment act 1976, bill no.91/1976.
Legal Mirror 288
some of the fundamental rights like ARTICLE 31 C saving of laws giving

some effects to certain directive principle , one of the most important article
which clearly classified the importance of directive principle to the state
policy is ARTICLE 37 the provision contain in this part shall not be
enforceable by any court, but the principles there in laid down are
nevertheless fundamental in the governance of the country and it shall be
the duty of the state to apply these principle in making laws. ARTICLE 44
uniform civil code for the citizens, the state shall Endeavour to secure for
the citizens a uniform civil code throughout the territory of India3.
The secular people who were demanding the reservation and special
provision only for minorities and neglecting the rights of the majority,
firstly they have to understand that article 15(4) provides the special
provision not only to the schedule caste, schedule tribes or other backward
classes but also it provide special provision to all those who were socially
and educationally backward classes of citizens, ARTICLE 15(4) nothing in
this article or in clause (2) of article 29 shall prevent the state from making
any special provision for the advancement of any socially and educationally
backward classes of citizens or for the schedule castes and schedule tribes 4.
So if our constitution prevents the state for making the special provision for
the advancement of any socially and educationally backward classes than
why not those people who act as a secular people demand for the same for
all irrespective that he belongs to general category, schedule caste, or
schedule tribe.
Don‘t they feel the right which is conferred under article 15(4) is also for
those kashmiri pandits who were thrown out from their place and living the
life of refugee in their own country. Is these kashmiri pandits are not
socially and educationally backward classes, not only the kashmiri pandits
3
Constitution of India.
4
Constitution of India.
Legal Mirror 289
but all those people belong to general category but socially and
educationally backward were also entitled to have special advantages under
article 15(4), this kind of negligence in the part of these people were
breaching the fundamental right of these people.
These are only few example where the constitution of India was
misinterpretate by the law makers, there were many more which we have to
deal with, mistake is not in the constitution, but some people actually
mistaken the constitution of India, which results the lay man thinks our
constitution is not competent to deal with the problems of the lay man.
Muslim scholars over personal laws
There are some Muslim scholars who opposed their personal laws and wish
to have a uniform civil code for Muslims also. Maulana modudi founder of
jamate-e-Islam in his book ―zaujain‖ have clearly mentioned that some of
the religious practices under Muslim personal laws gives the bad name to
Islam. As he also said all these practices were different from the real
―sharia‖ under Islam and it is damaging the civil life of Muslims, due to this
Muslim personal laws the 75% of Muslim households were became
veritable hell, there is not a single Muslim family who were not suffering
due to this personal law. Arif Mohammad khan former cabinet minister in
Rajiv Gandhi government have left the government after the shahbano
case5, as because he demands for uniform civil code and government was
not in favor of it6.
Personal laws vs. uniform civil code
There are plenty of laws under personal laws which are against the public
order and morality and which are yet not reformed, polygamy under Muslim
5
AIR 1985 SC (R) 844.
6
Arif Mohammad khan, former cabinet minister.
Legal Mirror 290
personal law which violate ARTICLE 14 and promote gender inequality, as

Muslim male have right to have four spouses whereas women‘s were
restricts from such rights, one of the disasters under Muslim law is there
divorce system, under Sunni personal law the triple divorce system ―talaq-
ul-biddat‖ provides unconstitutional rights to the Muslim male, as under the
condition of coercion, undue influence, intoxication if a Muslim male
gives divorce to his spouse the status of this divorce is valid under Muslim
personal law, similarly Muslim women have no right under divorce,
inheritance, adoption, marriage etc.
There are some other unnatural practices done by Muslims under the
shadow of their personal laws, as if the child born after two years of ―iddat‖
period he will get legitimate status, under Shia personal law marriage of
unsound person is valid if his father or grandfather gives the consent on
behalf of that unsound person. Not only this but if Muslim male pronounce
his wife as his sister or mother no matter in anywhere, any time or in any
sense the relation of the husband and wife comes under prohibited degree
and the marriage becomes null and void.
As we all know that Muslim marriage is a contractual marriage rather than a

marriage of sacraments like Hindu marriage, than the marriage of unsound
person, divorce under coercion, undue influence or under intoxicated
condition is void under section 10 of Indian Contract Act,1872. Not only
these but Muslim women‘s were suffered a lot for maintenance under the
shadow of Muslim personal law, as in the landmark case of shahbano in
which Ahmad Khan refuses his wife shahbano for the maintenance, as he
argued that he already paid her maintenance in the form of mehar but the
court have held that shahbano is entitled to have guzarabhatta (maintenance)
Legal Mirror 291
throughout her lifetime7. After this case Supreme Court strictly demand
from the government to have uniform civil code in India.
The basic structure of uniform civil code is to give equal rights to the
women‘s in marriage, inheritance, divorce, maintenance, adoption etc, and
to prevent the women‘s from exploitation and gender inequality under the
shadow of personal laws. There is an misconception and fear regarding
Muslims that uniform civil code breach their religious rights, uniform civil
code nowhere harms the rituals of the religion as it is to teach that how
many marriage should be done, how should be done it‘s up to the customs
of that particular religion. If took the example of Hindus large number of
reforms were introduced in Hindu personal law which makes Hindu
personal law the most codified law amongst all, instead of so many reforms
they were professing their religion happily, and still ready to accept uniform
civil code.
Around majority of Muslim women‘s are in favor of uniform civil code and
now in this 21st scenario large number of Muslims are also supporting
uniformity of law, the question arises that why Muslim wants selective
uniformity, as there is no separate laws related to criminology, uniform
criminal code follows by all, it just because ―shariyat‖ for criminal law
impose heavy liability on Muslims they were ready to follows uniform
criminal code.
The clashes between uniform civil code and personal laws is not because the
group of orthodox were not ready to change their laws, but it is because they
were not really understand the structure and benefits of uniform civil code,
Muslims were threaten that uniformity of laws force them to follow Hindu
personal laws, which is not true but just an political influences for their vote
bank.
7
Ahmad khan vs. shahbano sc 1985.
Legal Mirror 292
Not just only to this extent but the word FATWA under the Muslim
personal law has given the bad name to Islam, as the sayings of ALLAH in
Quran, saying of prophet in al-Bukhara and many other schools of Muslims,
they all unanimously said that Allah is the only and absolute source of law,
but fatwa given by religious preachers of Muslims were amend the laws
according to their views.
As in many of the cases court has decided fatwa is unconstitutional, the

concept of polygamy in Muslim law were introduced by Prophet
Mohammad at the time of war, the number of marriages done by the prophet
is to secure those women‘s who were effected in the war.
But some Muslim jurists misinterpretate the concept and provide absolute
liberty to Muslim male to have four spouses with or without any reason,
basically Muslims were not aware about their own religion, only chanting of
phrases under Quran is not sufficient, you have to understand the depth of
the meaning of those phrases.
Selective secularism in India
We all very well know that Indian secularism is different from other secular
countries as India follows selective secularism, as the people who were in
support of secularism and talks about equal rights amongst all religion, also
who against of any kind of favoritism to any religion, were actually change
their thoughts in the matter of uniform civil code and argue that India is a
diverse nation so, every religion have their own rights to deal with.
Similarly Hindu personal law faced many reforms like Hindu marriage act
1955, Hindu adoption and maintenance act 1956, Hindu amendment act
2005 etc which completely changed the personal laws of Hindus, and
codified it, but in case of Muslim personal law the government yet not
introduced any single reform, instead of so many bad practices under
Legal Mirror 293
Muslim law, apart from that Rajiv Gandhi government had contradict the
judgment of supreme court in shahbanos case in which court held that
Muslim women‘s were entitled to have maintenance till lifetime, but Rajiv
Gandhi government restricts the maintenance of Muslim women‘s till their
iddat period of three months, by enacting Muslim women‘s protection
against divorce act 1986 , and that government is done so, for the sake of
their Muslim vote bank . the secularism in India is to favor minorities, as at
the present time some people trying to spread rumors that India facing the
problem of intolerance, by giving the reason of one dadri case many
writers were returning there awards in the name of intolerance, but my
straight question is from those writers is that why don‘t they return there
awards when millions of kashmiri pandits forced to leave there homes and
left them to live the life of refugees in their own country, not just forced to
leave thousands of kashmiri pandits were killed also, and the Kashmiri
pandits were not the only victims but the sikh massacre of 1984 and the
speech of Rajiv Gandhi ―when a big tree falls, the ground shakes‖, the
godhra riots, the babri masjit demolition and so, on. Creating bad image of
present government and targeting Hindus is the only motive of those who
were spreading the rumors of intolerance amongst nation, the reforms under
Hindu law is the best example of tolerance amongst Hindus, as Hindus were
so, tolerant to accept any situation, Australia and Russia order Muslims to
leave their nation due to the growing terrorism, that is the best example of
intolerance not the most diverse country like India. Why those actors and
writers were raise their voices when Hindu population in Pakistan decrease
from 15% to 0.93%8, when Hindu population in Bangladesh reduces to
8.2% from 28%9, similar in case of Kerala where Hindus were reduced to
minority from majority, it‘s not about the Hindus rights but reason is why
8
DNA Zee news.
9
DNA Zee news.
Legal Mirror 294
some political parties and the people who influenced from those parties
were harming the dignity of the country, and praising Pakistan by saying
Pakistan is more peace loving and tolerant country from India.
Supporting secularism but not supporting uniform civil code shows people
support selective secularism in India, as there is clearly mentioned in 42nd
amendment that the main objective to add the word secularism in preamble
is to give effect to directive principle, specially to enforce uniform civil
code for all citizens to have uniformity amongst nation.
Moreover secularism in India is influenced by the politics or political

thinking rather than the social views and behavior of the individual. If one
dadri case changed India into a intolerant nation than what about those
nations where minority population were facing major discrimination, being
the citizen of India we should have some faith in our constitution, because
the constitution and our India is above than any religion and holy book.
On what ground people blaming that India is an intolerant nation, as the

whole world knows that India is a leading largest democratic country in the
world.
Suggestions
Biggest problem that Indian secularism is facing due to the multi party
system, every political party in India whether national or regional were
using the word secularism as a instrument for their vote bank, people vote
for their caste, religion, region and expect secularity and equality from
nation. These different political parties assumed different meaning of
secularism some demand for reservation, some demand for special provision
for their state and so on, but they lack the actual meaning and objective of
secularism, firstly we have to abolish the multi party system and have to
Legal Mirror 295
establish dual party system so, as the nation overcome with the caste, region
and religion politics and move their steps towards pluralism.
Secondly it is the duty of the government to disclose the structure of

uniform civil code, that how should uniform civil code bring uniformity
amongst all religion, as the problem regarding enactment of uniform civil
code is the people are not aware about the functioning and structure of
uniform civil code so, they have fear that it will breach our religious rights,
we have to explain them the merits of uniform civil code that the basic
structure includes gender equality which empower women to have similar
status in marriage, inheritance, adoption, succession and importantly in the
maintenance, similarly to clarify the status of legitimate and illegitimate
child along with the rights of illegitimate child and his mother, uniform civil
code is not about any particular religion it is the collective believe and
sentiments of all religion, the most important part of uniform civil code is
that it is to punish the culprit and to provide justice to the victim, which
remains absent in the personal laws.
Thirdly we have to decide the diameters of secularism, that at what extend

secularism in India works , if we are ready to support secularism than we
have to adopt secularism in every sphere of India including in civil laws,
basically the strength of our nation becomes our weakness, as people
misused the power of democracy and differentiate between two things one
is secularism and the other is diversity, but actually they were not aware
about the meaning of both the words diversity doesn‘t means you have
absolute power to profess your religion, it means you have right to profess
your religion with respect to protect the rights of others also, so, as the word
secular means. As now many legal, political and social activist has been
agreed on the point that uniformity amongst all is necessary so, as the
demand of the time, there was an saying ―change before change‖, now it‘s a
Legal Mirror 296
right time to enact uniform civil code, as because there are many other issue
in the nation which we have to deal with, when all the directive principles
were became the part of fundamental rights than India become the leading
powerful nation of the world and enactment of uniform civil code is one of
the step towards it.
Nothing in this world is impossible ―when there is a will there is a way‖ if

we really want to move forward towards the destination than we have to
overcome with the problem selfishness and have to develop fraternity
amongst all, which is the sole objective of secularism and uniform civil
code.

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Legal Mirror 1

Volume-1 Issue-2 ISSN-2454-6216

INTERPRETATION OF LAWS RELATING TO WOMEN

Khushhali Kaura* & Aayush Gupta**

Condition of women in India has not been historically very good. As is

Indian judiciary feel convinced of the need for women's empowerment-by

*College of legal studies, UPES, Dehradun

The Preamble to the Constitution of India assures justice, social, economic

Article 16:Art 16 (1) ensures equality in employment in govt. services and

Directive principles of State Policy also contains important provisions

Article 40/Article 243 D provides that 1/3 seats in panchayats shall be

Article 51(A) (e)expects from the citizen of the country to promote

The Medical Termination of Pregnancy Act, 1971

This Act provides for the termination of certain pregnancies by registered

The Hindu Succession Act, 1956 with amendment in 2005

The Protection of Women from Domestic Violence Act, 2005

Domestic Violence Act meant to provide for more effective protection of

The Commission of Sati (Prevention) Act 1987

Judges are applying the discretionary power to provide better justice to

 Judiciary has made immense contribution to strike the balance

1. Duty of Employer or other responsible persons in work places and

2. Court also define sexual harassment. Sexual harassment includes:

a) Physical contact and advances;

b) A demand or request for sexual favor;

c) Sexually colored remarks;

e) Any other unwelcome physical, verbal or non-verbal conduct of

3. Court also provided guidelines to all employer public or private

4. What type of criminal proceeding is required for this offence that

5. Disciplinary action should be taken against the offender.

6. Complaint Mechanism is also suggest by court.

7. Complaint committee is required.

8. There is a need of worker‟s initiative.

9. There is need of awareness among female employees about their

10. Court provided the guideline in case of third party harassment.

11. Central/ state Government are requested to enact the specific

These directions would be binding and enforceable in law until suitable

 In Apparel Export Promotion Council vs. A.K. Chopra9,The

 In Railway Board vs. Chandrima Das10,It was a case of gang-

 In Mohd. Ahmed Khan vs. Shah Bano Begum11,the judgment

 In Bodhisattwa Gautam vs. Subhra Chakraborty12, the

complainant to believe that she was lawfully married wife of the

 In Deelip Singh vs. State of Bihar13, Court held that consent

which he will be liable for damages under civil law. False

ANTI- TERRORISM LEGISLATIONS:

According to Sec.2(d) of the protection of Human Rights Act 1993

Traditionally police has been considered as one of the state agent in

* Associate Professor, Symbiosis Law School, Hyderabad.

deferred to police officers in violating Human Rights.3 Human Rights are

Bangalore Undoubtedly national security is of paramount importance

and constitution. In order to curb the activities of terrorism the government

The UDHR and UN chapter on Human Rights laid ample emphasis

is necessary to fight the menace of terrorism within the parameters set by

Terrorism is anti-human and anti social activities. Combating

and discriminatory application of laws in the form of unauthorized

of police have to be only to the rule of law. Transparency of action

ATTEMPT TO SUICIDE SHOULD OR SHOULD NOT BE

Aunohita Chatterjee * & Namrata Chakraborty**

*III Semester (2nd Year),BA.LLB,Symbiosis Law School.

But the scenario changed completely as the world moved towards

The famous Suicide Act of 196112 , framed by the Parliament of United

as unconstitutional and hence void.”Justice R.A. Jahagirdar has referred the

suicide was disapproved, in certain circumstances it was tolerated,

The provisions given in Article 21 can have a multidimensional approach; if