Application of IHL and IHRL in Internal Armed Conflict PDF

International Journal of Socio-Legal Research 1
Volume 1 | Issue 1 | ISSN- 2393-8250
THE APPLICATION OF INTERNATIONAL

HUMANITARIAN LAW AND INTERNATIONAL HUMAN
RIGHTS LAW IN INTERNAL ARMED CONFLICTS IN SUB
– SAHARAN AFRICA: A SYMBIOSIS OR SYNTHESIS*
I. INTRODUCTION
Armed Conflict is one of the principal causes of the plight of Sub-Saharan
Africa today. Conflicts in Africa have caused massive death and destruction,
uprooting of the populations, and erosion of social capital. The factors that
have sparked these conflicts range from poverty, struggle for scarce
resources, rapid economic modernization, ethnic rivalries, religious
intolerance, bad governance and misuse of resources, arbitrary national
boundaries imposed by colonial powers, political-military groups by outside
powers, erosion of the international architecture created during the Cold
War to the lack of democracy and human rights and high-level of
corruption.
Armed conflicts in Sub Saharan Africa have - along with large population of
displaced people and refugees and HIV/AIDS pandemic - been identified as
a major factor in slowing down the achievement of the Millennium
Development Goals (MDGs). The resources spent on warfare could, if
redirected, make a significant contribution to addressing the MDGs and
other developmental challenges. Above all, there is usually wanton cruelty,
savagery, brutality and ruthlessness in the prosecution of wars. The
rampancy of civil or intertribal wars, the level of prosecution and degree of
harm inflicted on both combatants and non-combatants were quite blood
____________________________________________________
*‘Yomi Olukolu, Esq., LL.M, M.Phil, Lecturer, Department of Jurisprudence &
International Law, Faculty of Law, University of Lagos, Akoka, Lagos, Nigeria.
kolyom@yahoo.com.
chilling.
Even though the protection of human dignity has been the core value of both
the Human Rights Law and International Humanitarian Law, the classical
view in international law is that humanitarian law operates in situations of
armed conflict while human rights law operates in peacetime.
This paper, however, posits that both human rights law and humanitarian
law derive from the basic principle that the individual is entitled to certain
minimum rights whether in peace or in war time. He is entitled to
protection, security and respect. If wounded or captured, he is entitled to
care and humane treatment, if dead, his body is entitled to decent treatment.
Hence, both laws are complementary to each other especially in situations
of armed conflicts.
International humanitarian law, however, aims at regulating the conduct of
wars by regulating the combatants during warfare and restraining
belligerents from wanton cruelty and ruthlessness and providing essential
protections to those directly affected by war. International humanitarian law
therefore seeks to regulate and mitigate the conduct of armed conflicts. Its
aim is to protect the victims of armed conflicts from the effects of hostilities
to the greatest possible extent. For this purpose, the ―victims‖ are
essentially all those who are or have been rendered ―hors de combat‖ in
relation to the conflict in question, that is the sick, wounded and/or
shipwrecked, prisoners of war and civilians who are themselves not offering
hostile action. Nowadays, human rights also play a complementary role in
the protection of non-combatants in situation of wars.
II. Defining Armed Conflict

Recent armed conflicts events across regions of the world have led to a
debate, both nationally and internationally, about what constitutes armed
conflict in international law. The emergence of non-State groups as a major
threat to international peace and security and the United States‘ assertion
that the ―war on terror‖ is an armed conflict under international law have
been at the centre of the controversy.
Currently, there is no authoritative definition of armed conflict in
international law1 and the debate focuses almost solely on how the term
―armed conflict‖ is used in the Geneva Conventions and the Additional
Protocols2 which form the core of International Humanitarian Law (IHL).
The Geneva Conventions refer to two types of armed conflict—
―international armed conflict‖ and ―non-international armed conflict‖—
but do not define the term ―armed conflict‖ and do not provide definitive
answers in peripheral situations of conflict, such as those involving a State
and a transnational terrorist network.3 However, the Geneva Conventions do
not operate in a vacuum but function in conjunction with other bodies of
law, including, in particular, Human Right Laws (HRL).
According to the Vienna Convention on the Law of Treaties
1
Natasha T. Balendra; “Defining Armed Conflict”, New York University School of Law,
Public Law & Legal Theory Research Paper Series, Working Paper No. 07-22, December,
2007. (electronic copy available and accessed on 12/05/2012 at: http://ssrn.com/abstract).
2
Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in
Armed Forces in the Field, Aug. 12, 1949, [hereinafter Geneva Convention I]; Geneva
Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked
Members of Armed Forces at Sea, Aug. 12, 1949, [hereinafter Geneva Convention II];
Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949,
[hereinafter Geneva Convention III]; Geneva Convention Relative to the Protection of
Civilian Persons in Time of War, Aug. 12, 1949, [hereinafter Geneva Convention IV]
[hereinafter, collectively, Geneva Conventions]; Protocol Additional to the Geneva
Conventions of 12 August 1949 and Relating to the Protection of Victims of International
Armed Conflicts, June 8, 1977 [hereinafter Additional Protocol I]; Protocol Additional to
the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of
Non-International Armed Conflicts, June 8, 1977 [hereinafter Additional Protocol II]
[hereinafter, collectively, Additional Protocols].
3
Simply for the sake of convenience, the terms ―terrorism‖ and ―terrorist‖ are used
interchangeably in this work. It must be noted that that there is no agreed definition for
these terms in International Law. For an extensive discussion of the use of the term
―terrorism‖ in International Law, see Helen Duffy; The War on Terror and Framework of
International Law, (Cambridge University Press: Cambridge, 2005).
[a] treaty shall be interpreted in good faith in accordance with the

ordinary meaning to be given to the terms of the treaty in their
context and in the light of its object and purpose.4
Therefore the first step in ascertaining the meaning of the term ―armed
conflict‖ in international law is to look at both the text and the object and
purpose of the Geneva Conventions.
As noted earlier, the Geneva Conventions recognize two distinct categories

of armed conflict—international and non-international. The full complement
of protections under IHL is applicable only to the first category. Under the
Geneva Conventions, an international armed conflict arises between “two or
more of the High Contracting Parties.”5 The full complement of protections
provided by IHL applies in cases of international armed conflict. According
to the Commentary to the Geneva Conventions, “[i]t makes no difference
how long the conflict lasts, or how much slaughter takes place.”6 Since only
States can be High Contracting Parties, an international armed conflict has
traditionally been viewed as a conflict between two States.
A much smaller group of protections included under Common Article 3 of
the Geneva Conventions applies to a second category of armed conflicts,
namely ―armed conflicts not of an international character.‖7 Such conflicts
4
Vienna Convention on the Law of Treaties, 1969, Art. 31. Available at
http://untreaty.un.org/ilc/texts/instruments/english/conventions/ [hereinafter ‗Vienna
Convention‘].
5
Vienna Convention, art. 31. In addition, Additional Protocol I, which supplements the
protections available in international armed conflict, applies also to ―armed conflicts in
which peoples are fighting against colonial domination and alien occupation and against
racist regimes in the exercise of their right of self determination.‖ See, Additional Protocol
I, art. 1(4).
6
J. S. Pictet; Commentary on Geneva Convention for the Amelioration of the Condition of
the Wounded And Sick in Armed Forces in The Field, (International Committee of the Red
Cross: Geneva, 1952).
7
Under Additional Protocol II, further protections apply in cases of conflict between a State
and armed forces that are ―under responsible command [and] exercise such control over a
“occur…in the territory of one of the High Contracting Parties,”8 which

suggests that non-international armed conflicts typically occur within a
single State.9
Non-internationals armed conflicts are, however, distinguished from
“internal disturbances and tensions [or] isolated and sporadic acts of
violence.”10 For instance, the boko haram menace in Nigeria will definitely
not be a civil war. One of the factors relevant to such a factual
determination is the nature, intensity, and duration of the violence.11
Additionally, the protections applicable in non-international armed conflicts
bind all parties to the conflict, including non-State actors.12 As a result, for a
non-State actor to be deemed a party to a non-international armed conflict, it
must have attained a certain level of organization and command structure
such that it is capable of being identified as a party in the first place.13
However, many conflicts at the periphery of the definition of non-
international armed conflict are calling into question the determination of
these criteria. The International Committee of the Red Cross (ICRC)
Commentary to the Geneva Conventions explains that the term ―armed
conflict,‖ in addition to the term ―war,‖ was included in order to circumvent
arguments by States committing hostile acts that they are not making war
but merely engaging in police enforcement or legitimate acts of self-
part of its territory as to enable them to carry out sustained and concerted military
operations and to implement this Protocol.‖ See Additional Protocol II, art. 1(1).
8
Geneva Conventions, art. 3.
9
See Geoffrey S. Corn; ―Hamdan, Lebanon, and the Regulation of Hostilities: The Need to
Recognize a Hybrid Category of Armed Conflict‖, (2007) 40 Vanderbilt Journal of
Transnational Law, 295, 307.
10
See Additional Protocols, art. 1(2) (―This Protocol shall not apply to situations of internal
disturbances and tensions, such as riots, isolated and sporadic acts of violence and other
acts of a similar nature, as not being armed conflicts.‖).
11
Int‘l Comm. of the Red Cross; ―International Humanitarian Law and the Challenges of
Contemporary Armed Conflicts‖ (2003) available at
http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/5XRDCC/$File/IHLcontemp_armedconf
licts (last accessed 12/05/2012).
12
Geneva Conventions, art. 3, supra.
13
ICRC REPORT, supra note 11, at page 19
defense.14 The goal here is clearly humanitarian. Yet it does not follow that
the term ―armed conflict‖ must be interpreted broadly in all circumstances.
When the provisions of the Geneva Conventions were drafted, the
protections available under HRL were not taken into account. Nor had the
International Covenant on Civil and Political Rights (ICCPR) and the
International Covenant on Economic and Social Rights (ICESR), the first
legally binding human rights instruments of universal applicability, been
adopted yet. At that time, IHL was probably viewed as the only source of
protection for individuals during times of violent conflict. However if HRL
is also applicable in armed conflict, as it appears to be the case, then
individuals might be protected even in the absence of IHL. Therefore the
humanitarian goals of the Geneva Conventions are not always furthered by a
broad interpretation of the term ―armed conflict.‖ On the other hand,
however, there is nothing in the text or object and purpose of the Geneva
Conventions to indicate that a narrow reading is warranted either.
III. Between Human Right Law (HRL) and International

Humanitarian Law (IHL)
Despite having a great deal in common, HRL and IHL are separate bodies
of law. HRL has its sources in a series of international treaties such as the
International Covenant on Economic, Social, and Cultural Rights,15 several
regional treaties such as the European Convention on Human Rights,16 the
African Charter on Human and Peoples‘ Rights17 and the American
14
ICRC Report supra note 11, at 32
15
International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A
(XXI), at p. 49, U.N. Doc. A/6316 (adopted Dec. 16, 1966) (entered into force Jan. 2,
1976), available at http://www.unhchr.ch/html/menu3/b/a_cescr.htm.
16
Convention for the Protection of Human Rights and Fundamental Freedoms, Sept. 3,
1953, E.T.S. 5, 23 U.N.T.S. 221.
17
African Charter on Human and Peoples‘ Rights (Banjul Charter), African Union Doc.
CAB/LEG/67/3rev. 5, 21 I.L.M. 58 (1982) but came into effect on 21 October 1986.
Convention on Human Rights,18 decisions by international bodies

interpreting and applying those treaties, and State practice. Although norms
relating to humanitarian conduct in armed conflict have a long
provenance,19 much of IHL is contained in the Four Geneva Conventions of
194920 and the two Additional Protocols of 197721 and is complemented by
customary international law.
IHL focuses on restricting the means and methods of warfare and on
protecting individuals who are not, or are no longer, taking active part in the
hostilities and is applicable regardless of the justifiability of one or more of
the parties beginning the armed conflict. Active interaction between HRL
and IHL and between the United Nations (UN) and the International
Committee of the Red Cross (ICRC), the respective guarantors of the two
systems, was practically non-existent in the first twenty years after World
War II. The UN, as the guarantor of peace and human rights, wanted
nothing to do with the law of war and the ICRC, the guarantor of the law of
war, did not want to be associated with the UN, which it deemed to be a
political organization, or with its baby, human rights.22 In the ICCPR, war
or armed conflicts are not explicitly mentioned even in its derogation
provisions and this is commonly attributed to the reasoning that the ICCPR
18
Organization of American States, American Convention on Human Rights, Nov. 22,
1969, O.A.S.T.S. No. 36, 1144 U.N.T.S. 123.
19
For a more in-depth discussion of the development of international humanitarian norms
and law, see H. Mccoubrey; International Humanitarian Law: Modern Developments in the
Limitation of Warfare, 2d ed. (Ashgate: Dartmouth, 1998), p. 8 et al.
20
Geneva Conventions, supra.
21
Additional Protocols, supra. Additionally, The Hague Conventions of 1899 and 1907 and
the annexed Regulations lay down important rules for the conduct of hostilities and are now
considered to be part of customary international law. Hague Convention (II) with Respect
to the Laws and Customs of War on Land and its Annex: Regulations Concerning the Laws
and Customs of War on Land, Jul. 29, 1899, 32 Stat. 1803; Hague Convention (IV)
Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277.
22
See R. Kolb; ―The Relationship Between International Humanitarian Law and Human
Rights Law: A Brief History of the 1948 Universal Declaration of Human Rights and the
1949 Geneva Conventions‖ (1998), 324 Int‟l Review of the Red Cross 409, 409-10 ; K.
Bennoune; “Towards a Human Rights Approach to Armed Conflict: Iraq‖ (2003), 11 U.C.
Davis J. Int‟l Law & Policy 171, 173.
should avoid envisaging the possibility of war.23 Although the protection of

human dignity has been the core value of both the HRL and IHL.
Starting in the 1960s, however, a substantial relationship began to form

between IHL and HRL. The United Nations Human Rights Conference held
in Tehran in 1968 witnessed the establishment of an official link between
human rights and IHL. Following the Conference in a resolution entitled
―Respect for Human Rights in Armed Conflict,‖ the UN General Assembly
called for the better application of existing humanitarian international
Conventions and the conclusion of additional agreements.24 Since then
interactions between the two systems have flourished. As Theodor Meron
puts it, ―[h]uman rights have greatly influenced the formation of customary
rules on humanitarian law, which is discernible in the jurisprudence of
courts and tribunals and the work of international organizations.‖25 It is
commonly accepted that human rights law in general and the proceedings
and impact of the Tehran Conference in particular directly influenced the
adoption in 1977 of the two Protocols Additional to the Geneva
Conventions.26 It has become routine for international bodies charged with
the implementation and application of IHL, such as the International
Criminal Tribunals for the former Yugoslavia and Rwanda to look to HRL
and its methodologies for assistance in interpreting the norms of IHL.27
23
See The Secretary-General, Report of the Secretary-General on Respect for Human
Rights in Armed Conflicts, at 22, U.N. Doc. A/7720 (1969). The European Commission on
Human Rights (ECHR), on the other hand, explicitly allows derogation in ―times of war or
other public emergency.‖ ECHR, supra Art. 15(1).
24
Declaration on Respect for Human Rights in Armed Conflicts, G.A. Res. 2444, U.N.
GOAR, 23rd Sess., Supp. No. 49, U.N. Doc. A/7433 (1968).
25
Theodor Meron; ―The Humanization of Humanitarian Law‖, (2000) 94 American
Journal of International Law (AJIL), 239 at 244.
26
See, e.g., Louise Doswald-Beck & Sylvain Vité; ―International Humanitarian Law and
Human Rights Law‖, (1993), 293 Int‟l Rev. Red Cross 94 at 113 ; Dietrich Schindler; ―The
International Committee of the Red Cross and Human Rights‖, (1979) 208 Int‟l Rev. Red
Cross 3-14.
27
See, e.g., Prosecutor v. Delalic, No. IT-96-21-T, Judgment, 266 (Nov. 16, 1998) (where
the Trial Chamber of the ICTY looks to HRL for support for its interpretation of the term
Many human rights bodies have also further stimulated this relationship by
using IHL to interpret the norms of HRL during times of armed conflict.28
IV. Application of Human Rights Law and International

Humanitarian Law in Armed Conflict
The consensus among many international tribunals and international

organizations appears to be that both HRL and IHL are directly applicable
in armed conflict but when the two sets of laws conflict, IHL takes priority
as the more specialized law or the lex specialis.29 The International Court of
Justice (ICJ), the UN‘s judicial body, first considered the question of
whether HRL applies directly in armed conflict in its Advisory Opinion in
―protected persons‖ in Geneva Convention IV); Prosecutor v. Tadic, Case No. IT-94-1-I,
Decision on Defence Motion for Interlocutory Appeal on Jurisdiction, 97 (Oct. 2, 1995)
(where the Appeals Chamber states that one of the reasons for applying the rules of
international armed conflicts to non-international armed conflicts also is ―the impetuous
development and propagation in the international community of human rights doctrines‖).
28
Contemporaneous with the growing interaction between IHL and HRL, a vigorous debate
has raged as to whether in fact such interaction is justified. Some scholars point to factors
like the distinct historical roots and conceptual frameworks of the two systems and
maintain that the two sets of norms must be kept strictly separate. For a good survey of
many of the arguments for keeping IHL and HRL separate, see M. J. Matheson; ―The
Opinions of the International Court of Justice on the Threat or Use of Nuclear Weapons‖,
(1997) 91 AJIL 417, 423 (arguing that HRL should not be applied in situations of armed
conflict). Others hail the cross-fertilization between IHL and HRL as an opportunity that
should be embraced wholeheartedly and point to and applaud what they see as the growing
influence of each body of law on the other.
29
It should be noted that some States, notably the United States and Israel, insist that HRL
is not applicable to their actions outside their respective territories and that they are only
bound by IHL when they engage in armed conflict abroad. See CCPR Human Rights
Comm., Concluding Observations of the Human Rights Committee: Israel, 11, U.N. Doc.
CCPR/CO/78/ISR (Aug. 21, 2003), available at
http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CCPR [hereinafter Concluding Observations of
the Human Rights Committee]. It is beyond the scope of this work to delve into the debate
as to whether a State‘s HRL obligations extend to its extraterritorial activity except to say
that, regardless of the debate, the majority of actors in the international community appear
to accept that HRL is applicable in armed conflict. For detailed analyses of the
extraterritorial applicability of HRL. See also M. J. Dennis; ―Application of Human Rights
Treaties Extraterritorially in Times of Armed Conflict and Military Occupation‖, (2005) 99
AJIL 119; Ralph Wilde; ―Legal ―Black Hole‖? Extraterritorial State Action and
International Treaty Law on Civil and Political Rights‖,(2005) 26 Michigan Journal of
International Law 739. Cf. President Obama‘s policy of dismantling Guantanamo Bay, a
United States‘ Detention Camp in Cuba.
the 1996 Nuclear Weapons Case. The Court found that the right to life
under Article 6 of the ICCPR was applicable in armed conflict and
explained the relationship between IHL and HRL as follows:
In principle, the right not arbitrarily to be deprived of
one‘s life applies also in hostilities. The test of what is
arbitrary deprivation of life, however, then falls to be
determined by the applicable lex specialis, namely the
law applicable in armed conflict, which is designed to
regulate the conduct of hostilities. Thus whether a
particular loss of life, through the use of a certain
weapon in warfare is to be considered an arbitrary
deprivation of life contrary to Article 6 of the Covenant,
can only be decided by reference to the law applicable
in armed conflict and not deduced from the terms of the
Covenant itself.30
The International Court of Justice (ICJ) recently affirmed this position in the
2004 Wall Case31 when it said:
More generally, the Court considers that the protection
offered by human rights conventions does not cease in
case of armed conflict, save through the effect of
provisions for derogation of the kind to be found in
Article 4 of the International Covenant on Civil and
Political Rights. As regards the relationship between
international humanitarian law and human rights law
there are thus three possible situations: some rights may
30
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996
I.C.J.Report 66 as available at http://prop1.org/2000/icjop1.htm (accessed on 16/05/2012).
31
Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory, (2004) I.C.J. 136 as available at http://unispal.un.org/unispal. (accessed on
18/05/2012).
be exclusively matters of international humanitarian

law; others may be exclusively matters of human rights
law; yet others may be matters of both these branches of
international law. In order to answer the question put to
it, the Court will have to take into consideration both
these branches of international law, namely human
rights law and, as lex specialis, international
32
humanitarian law.
Other international bodies charged with the implementation of IHL and
HRL have also articulated a similar position vis-à-vis the relationship
between IHL and HRL in armed conflict, albeit with different degrees of
explicitness.33 The Inter-American Commission of Human Rights has on
several occasions held that although HRL applies in armed conflict, the lex
specialis is IHL.34 The Human Rights Committee (HRC), has explicitly
stated that the applicability of IHL during armed conflict does not preclude
32
Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory supra at 106. In the more recent DRC v. Uganda case, the Court appears to apply
the two bodies of law in parallel and finds violations of both IHL and HRL without
referring to IHL when finding violations of HRL. However, the Court did not delve into the
issue of how any conflicts between HRL and IHL might be resolved. See Armed Activities
on the Territory of the Congo (Dem. Rep. Congo v. Uganda), (2005) I.C.J. 116 at 217-
219.
33
But it must be noted that there are some cases in which some human rights bodies have
directly applied HRL to situations of armed conflict, without any reference to IHL. See,
e.g., Wilfredo Loyola et al. Case (1985) 6724, Inter-Am. C.H.R. 79, OEA/ser. L/V/II.66,
doc. 10 rev.; African Commission on Human Rights, Civil Liberties Organization v.
Chad ACHPR, (1995) Corn. No. 74/92 Decision of Oct. 11, 1995. There may also be
procedural impediments to human rights bodies applying IHL as the lex specialis. In the
Las Palmeras case, for instance, the Inter-American Court of Human Rights stated that it
only had competence to determine whether the acts in question were compatible with the
American Convention and refused to examine the legality of the actions under Common
Article 3. See Las Palmeras Case, (2000) Judgment on Preliminary Objections of Feb. 4,
2000, as available at http://www1.umn.edu/humanrts/iachr/C/67-ing.html. (accessed on
23/05/2012).
34
See, Abella v. Argentina Case 11.137, Inter-Am. C.H.R., Report No. 55/97,
OEA/Ser.L./V/II.98, doc 7 rev. 271 (1997); Coard et al. v. United States Case 10.951,
Inter-Am. C.H.R., Report No. 109/99, OEA/ser.L/V/II.106, doc. 3 rev. (1999).
the parallel applicability of the provisions of the ICCPR,35 but has observed
that ―in respect of certain Covenant rights, more specific rules of
international humanitarian law may be especially relevant for the purposes
of the interpretation of Covenant rights.‖36 The European Court of Human
Rights has never explicitly discussed the relationship between IHL and HRL
but has on several occasions used terminology and concepts arguably
borrowed from IHL when applying the ECHR to situations of armed
conflict.37
However, there continues to be debate over whether in fact the European

Court is applying IHL as lex specialis or is applying the ECHR with no
reference to the norms of IHL.38 The position of the ICRC also appears to be
that IHL is the lex specialis in times of armed conflict. This was the
approach of the experts convened by the ICRC at the seventeenth Round
Table on Current Problems of International Law.39 There appeared to be a
consensus at the meeting that the non-derogable provisions of HRL
continued to apply in armed conflict simultaneously with IHL but that IHL
represented the lex specialis.40 During the discussion, multiple references
35
See Concluding Observations of the Human Rights Committee, supra (stating, with
respect to the second periodic Report submitted by Israel, that ―the applicability of the
regime of international humanitarian law during an armed conflict does not preclude the
application of the Covenant, including Article 4 which covers situations of public
emergency which threaten the life of the nation‖). .
36
See CCPR Human Rights Comm., General Comment No. 31 Nature of the General Legal
Obligation Imposed on States Parties to the Covenant, U.N. Doc.
CCPR/C/21/Rev.1/Add.13 (May 26, 2004)
37
See Ergi v Turkey Application (1998) Eur. Ct. H.R. 1751, 79, accessed on 20/5/2011 as
available at http://cmiskp.echr.coe.int/tkp197/view. (referring to ―civilian life‖ and
―incidental loss‖ which are arguably terms borrowed directly from IHL).
38
Some commentators maintain that the European Court is applying the ECHR in an
undiluted form without regard to IHL. See generally William Abresch; ―The Human Rights
Law of Internal Armed Conflict: The European Court of Human Rights in Chechnya‖,
(2005) 16 Eur. J. Int‟l Law 74.
39
Int‘l Inst. of Humanitarian Law & Int‘l Comm. of the Red Cross, Summary Report,
International Humanitarian Law And Other Legal Regimes: Interplay In Situations Of
Violence (2003) at http://www.icrc.org/Web (accessed on 22/06/2012).
40
Ibid. at 8-9
were made to the ICJ‘s opinion in the Nuclear Weapons Case.41 The ICRC
Study on Customary International Humanitarian Law also adopts the view
that both HRL and IHL are applicable during armed conflict and that IHL is
the lex specialis and takes precedence in armed conflict.42 Many human
rights proponents, including human rights organizations, while working on
the basis that both IHL and HRL are applicable in an armed conflict, rely
solely on IHL norms when assessing whether State conduct in armed
conflict violates international law.43Even many academic commentators
who see a significant role for human rights in armed conflict appear to
accept the ICJ‘s statement that IHL is the lex specialis.44
It should, however, be noted that the protection of human dignity, whether

during war or peace time, is the core value of both international human
rights law and international humanitarian law.
V. Between International and Non International Armed Conflict.
In analyzing whether or not the application of IHL will lead to derogation

from HRL, it will often be important to be specific as to whether IHL rules
under consideration are those applicable to international or non-international
armed conflict. The extent of derogation may, arguably, be greater in cases
41
Ibid. at 9
42
Int‘l Comm. of Red Cross; Customary International Humanitarian Law, (Jean-Marie
Henckaerts & Louise Doswald-Beck eds.), (2005), pp. 299- 306.
43
This trend is apparent in the reports on the recent conflict in Lebanon. For example, the
analysis of a recent report by Human Rights Watch focuses solely on the IHL framework
and its distinction between combatants and civilians. See Human Rights Watch, The
Terrible Toll of the Israel—Lebanon Conflict on Civilians: Ongoing Human Rights Abuses
and Violations of International Humanitarian Law (Aug. 10, 2006), at
http://hrw.org/english/docs/2006/08/10/lebano1 (accessed 6/10/2012). See also Amnesty
Int‘l, Israel/Lebanon; ―End Immediately Attacks Against Civilians‖ (July 13, 2006),
http://news.amnesty.org/index (solely referencing IHL and Geneva Conventions in
demanding that Israel and Hezbollah immediately cease attacks on civilian populations).
44
See O. B. Naftali & Y. Shany; ―Living in Denial: The Application of Human Rights in
Occupied Territories‖, (2003) 37 Isreal Law Rev. 17 (stating that they ―have come to the
conclusion that . . . the law of war and humanitarian law provide lex specialis in situations
of armed conflict and occupation‖).
of international armed conflict than non-international armed conflict. The

latter is more sparsely regulated and contains many more gaps. Many
commentators45 have argued that HRL can, and should, be used to fill in the
gaps left unregulated by IHL. This argument is consonant with the way lex
specialis operates. The maxim only comes into play if there are two norms
that purport to govern the same subject matter. Therefore, in the case of
non-international armed conflicts, because many issues are left ungoverned
by IHL, the lex specialis maxim would not be applicable and HRL would
apply in undiluted form with regard to those issues. But both the principles
of distinction and proportionality apply to non-international armed
conflict.46
Therefore, with respect to the right to life, IHL would derogate from HRL as
much in the case of non-international as international armed conflict.
However, with respect to the right to liberty, the undiluted norms of HRL
may have a much greater role to play in bulking up the leaner regulations of
IHL, which would then lead to much less derogation from the right to
liberty than would otherwise be the case.47 However, there is a lack of
agreement on whether HRL can be used in this manner to develop the norms
applicable in non-international armed conflict. If HRL is not used in this
manner, the rules of IHL applicable in non-international armed conflict—
which are sparser and arguably less protective than in international armed
conflict—might constitute a greater derogation from HRL than the rules of
international armed conflict.
45
T. Hillie, supra @ fn 2, p. 311 etal; L. Freedman; ―War and Human Rights‖ in
Blackburn and Taylor (eds), Human Rights for the 1990s, (Mansell Publishing: London,
1990), p. 14 etal.
46
ICRC Report, supra, vols.1, 3, 46.
47
For an analysis of how HRL could play a vital role in defining the conditions of detention
in non-international armed conflict, see Jelena Pejic; ―Procedural Principles and Safeguards
for Internment/Administrative Detention in Armed Conflict and Other Situations of
Violence‖, (2005) 858 Int‟l Rev. Red Cross 375 at 391.
VI. Enforcement of International Humanitarian Law.

International humanitarian law (IHL) has assumed considerable importance
in the contemporary world on account of proliferation of armed conflicts
and armed violence in different parts of the world. This law, which sets out
detailed rules that seek to limit the effects of armed conflict, has also come
under close scrutiny in the context of the so called 'war against terrorism'.
Humanitarian Law of War is also known as the Law of Armed Conflict or
simply, the Law of War and is contained in the Four Geneva Conventions of
1949 and their two Additional Protocols of 1977 as well as the Hague
Regulations of 1899 and1907. It is principally aimed at regulating warfare
and provides protection for victims of armed conflict. Protocol I relates to
International Armed Conflicts whereas Protocol II provides for Intra-State
Armed Conflict..
VI. A. Common Article 3 of the Geneva Conventions (ICRC, 1949)

Common Article 3 of the Geneva Conventions states that in case of armed
conflict, each party to the conflict is bound to apply the principle that
persons taking no active part in the hostilities shall be treated humanely, in
all circumstances, without any adverse distinction, and the wounded and the
sick shall be collected and cared for. The provision prohibits violence to
life, cruel treatment and outrages upon personal dignity. This Clause is
particularly significant in armed conflicts because violence to life and
degrading treatment is commonplace in times of war. The prohibited acts,
which include enforced prostitution and indecent assault, are echoed in
Article 75 of the Convention. This prohibition is crucial in the prevention of
rape by combatants on females.
Rape and some other forms of sexual violence are designated as violation of
Common Article 3 of the Convention.48 The wording of Article 3 suggests
that differentiation on the basis of, inter alia; sex is permissible as long as
its impact is favourable. Common Article 3 binds all parties to the conflict,
including the insurgent party.
VI. B. Geneva Convention IV Relative to the Protection of Civilian

Persons in Times of War, 1949
Article 14 of the Geneva Convention IV requires that in time of peace and
after the outbreak of hostilities, States should establish hospital and safety
zones and localities so organized as to protect the wounded, sick and aged
persons, children, expectant mothers and mothers of children under seven,
from the effects of war. If states were complying with this requirement, the
impact of war on the vulnerable could, arguably, not have reached the
incredible levels it has gone today.
Vulnerability or otherwise of women and children are, however, dependent
on their activities in the course of the armed conflicts. Some women are in
contemporary times combatants and some including children are spies for
the opposing parties. In this circumstances, it is submitted, that such women
and children cannot and should not be categorised as being vulnerable.
Article 16 of the Fourth Geneva Convention gives protection to the

wounded and the sick. It stipulates that the wounded and the sick, as well as
the infirm, and expectant mothers, shall be the object of particular protection
and respect. This Article recognizes the vulnerability of these people during
conflicts and the preferential attention they deserve.
48
See the Statute of the International Criminal Tribunal for Rwanda (ICTR), established by
the UN Security Council in November 1994.
It is also worth noting that Article 27 indicates that women shall be

especially protected against any attack on their honour, in particular against
rape, enforced prostitution, or any form of indecent assault.
VI. C. Protocol Additional to the Geneva Conventions of 12 August 1949,

and relating to the Protection of Victims of International Armed
Conflicts.
Article 48 of the Additional Protocol provides the basic rule, which requires
the Parties to the conflict to distinguish between the civilian population and
combatants and between civilian objects and military objective and
accordingly directs operations against military objectives. The provision
indicates that civilians are not party to the hostility and therefore they
should be respected and protected as well as their property. Nonetheless, it
may be problematic to figure out who is a combatant and who is a civilian
where combatants have no distinct uniform or disguise themselves as
civilians.
The principle of proportionality is central aspect of the International

Humanitarian Law. Article 51(5)(b) defines indiscriminate attacks as those
which may be expected to cause incidental loss of civilian life, injury to
civilians and damage to civilian objects which would be excessive in
relation to the concrete and direct military advantage anticipated. This
provision, however, does not take into account long term effects of
attacks.49 Thus, long term effects of attacks and potential dislocation of
civilians are not limiting factors in the application of force. This failure to
recognize and take into account the whole picture of what happens after an
armed attack affects the vulnerable population.
49
For example starvation and disease, displacement of civilian population and refugee
problem
Article 54 provides for the protection of objects indispensable for the

survival of the civilian population. These include foodstuffs, agricultural
areas, drinking water installations and irrigation works. Starvation of
civilians as a method of warfare is also prohibited. The sabotage of
humanitarian relief by combatants is therefore unlawful.
Article 70 provides that relief action shall not be regarded as interference in

the armed conflict and that in the distribution of relief consignments,
priority should be given to children, expectant mothers, maternity cases and
nursing mothers. It is argued that people with disabilities should also have
been included in this genre on the basis of their loss of opportunity to
operate on level ground with others.
Further, Article 70 spells out that Parties to the conflict shall allow and
facilitate rapid and unimpeded passage of all relief consignments,
equipment and personnel even if such assistance is destined for civilian
population of the adverse party. The Parties are not only under an
obligation to protect relief consignments and facilitate their rapid
distribution but shall also encourage and facilitate effective international co-
ordination of the relief actions. However, during the 1968 Biafran War in
Nigeria, starvation and blockage of materials were part of the ‗winning
methods‘ employed by the Government forces against the Biafran
combatants. However, this method has been criticised as genocidal strategy
on the part of the Federal Government of Nigeria against not just the Biafran
combatants but the civilian population who themselves did not offer
hostilities.50
50
Chinua Achebe; There was a Country: A personal History of Biafra, Penguin Books Ltd.,
London, (2012), pp. 199, 209, 210, 221, 230, 231, and 233.
VI. D. Protocol Additional to the Geneva Convention of 12 August 1949,

and relating to the Protection of Victims of Non-International Armed
Conflicts (Protocol II), 8 June1977.
Article 13 of the Protocol II confers general protection on the civilian

population against the effects of military operations, and specifically
prohibits the direct targeting of civilians, or the use of acts or threats of
violence to terrorise the civilian population. Unlike Protocol I, Protocol II
contains no specific limitations on the means and methods of combat. There
is no prohibition against indiscriminate attacks or any requirement as to
proportionality, no prohibition on the civilian population being used as a
shield against military operations, and no prohibition against reprisals.
All of the foregoing has made the enforcement of Protocol II a mirage. Even
where efforts are made through the International Criminal Courts by the
trials, in most cases, just the arrow heads were singled out for punishment as
in the cases of the civil wars in Sierra-Leone and Liberia in West Africa.
Thousands of the belligerents, who committed these dastardly acts, were left
unpunished. In some cases, they were offered employment by co-opting
them into the State‘s military as it happened recently in Cote‘dvoire.
VII. ENFORCEMENT OF HUMAN RIGHTS LAW

VII. A.Declaration on the Right and Responsibility of Individuals, Groups
and Organs of Society to Promote and Protect Universally
Recognized Human Rights and Fundamental Freedoms.51
This Declaration reaffirms the importance for the promotion and protection
of all human rights and fundamental freedoms for all persons in all countries
of the world. The Declaration also stresses that all members of the
international community shall fulfil, jointly and separately, their solemn
51
General Assembly Resolution 53/144 of March 8, 1999.
obligation to promote and encourage respect for human rights and

fundamental freedoms without distinction of any kind. The preamble to the
Declaration reiterates that all human rights and fundamental freedoms are
universal, indivisible, interdependent and interrelated and should be
promoted and implemented in fair and equitable manner, without prejudice
to the implementation of each of those rights and freedoms.
Paragraph 1 of the Declaration puts a responsibility on everyone,

individually or in association with others, to promote and to strive for the
protection and realization of human rights and fundamental freedoms at
national and international level. This, therefore, entails that every individual
is duty bound to the protection and promotion of human rights, which
implies a responsibility to react and protect human suffering. Undoubtedly,
Non Governmental Organizations (NGOs), Non- Governmental
Humanitarian Agencies (NGHAs) and Intergovernmental Agencies (IGOs)
derive their responsibility from this provision. Paragraph 2 states that each
State has a prime responsibility and duty to protect, promote and implement
all human rights.
It has been noted that women are usually not given opportunity to contribute
in decisions that affect their lives especially in post –conflict nation building
or even decisions to go to war. This is contradictory to the intent and
purpose of Paragraph 8 of the Declaration which provides that everyone has
the right, individually and in association with others to have effective
access, on non- discriminatory basis, to participate in the government of his
or her country and in the conduct of public affairs.
While Paragraph 9 indicates that everyone has a right to benefit from an

effective remedy and to be protected in the event of violation of those rights,
the right can hardly be enjoyed in situations of conflict especially when
there is no justice-dispensing machinery. Further, Paragraph 15 asserts that

the State has the responsibility to promote and facilitate the teaching of
human rights and fundamental freedoms at all levels of education and to
ensure that all those responsible for training lawyers, law enforcement
officers, the personnel of armed forces and public officials include
appropriate elements of human rights in their programmes. This is a vital
provision for purposes of safeguarding democracy, promoting human rights
and fundamental freedoms in order to attain sustainable peace and
stability. However, aspects of humanitarian law need also to be included
especially for members of the armed forces who are involved in combat. As
discussed below, many combatants today lack the basic rudiments of
education.
The protection offered by the provisions of the International Humanitarian

Law are inadequate in relation to all categories of persons affected by armed
conflict.52 In the context of combatants there are detailed rules protecting
combatants when wounded, sick, or prisoners of war. The rules restraining
the means and methods of combat in intra-state conflicts in order to protect
civilians are very limited. Article 13 of Protocol II confers general
protection on the civilian population against the effects of military
operations, and especially prohibits the direct targeting of civilians, or the
use of acts or threats of violence to terrorise the civilian population. Unlike
Protocol I, Protocol II contains no specific limitations against indiscriminate
attacks or requirement as to proportionality, no prohibition on the civilian
population being used as a shield against military operations, and no
prohibition against reprisals. It is a daunting task, however, to persuade the
52
J. G. Gardam and M. J. Jarvis, op. cit, at p.5.
military to accept restrictions on the use of any weapon with a perceived

military advantage in order to protect combatants or indeed civilians.53
VII. B. Limitation and Derogation of Civil and Political Rights.
A State Party may take measures derogating from its obligations under the
International Covenant on Civil and Political Rights pursuant to Article 4 of
the Covenant only when faced with a situation of exceptional and actual or
imminent danger, which threatens the life of the nation. A threat to life of
the nation is one that affects the whole of the population and either the
whole or part of the territory of the State and that threatens the physical
integrity of the population, the political independence or the territorial
integrity of the State or the existence or basic functioning of the institutions
indispensable to ensure and protect the rights recognized in the
Covenant. Thus, the derogation clause applies in times of public emergency
which threaten the life of the nation and the existence of which is officially
proclaimed.
Nevertheless, internal conflict and unrest that do not constitute a grave and
imminent threat to the life of the nation cannot justify derogations under
Article 4.54 Even in times of emergency, the following rights are non-
derogable. The right to life, freedom from torture, cruel inhuman or
degrading treatment or punishment, and from medical or scientific
experimentation without consent, freedom from slavery or involuntary
servitude, the right not to be imprisoned for contractual debt, the right to
recognition as a person before the law and freedom of thought, conscience
and religion. Almost all of these rights are part of the preemptory norms of
53
J. G. Gardam and M. J. Jarvis, op. cit, at p.5.
54
UN General Assembly Resolution 53/144 of March 8, 1999.
international law (jus cogens) and the Vienna Convention55 proclaims that
they are non derogable.
In practice, there is a tendency, particularly on the part of military

dictatorships, to misuse the tool of emergency to maintain their own
positions of power, which have usually been secured by violation of the
constitution that encompasses the Bill of Rights.56
By and large, intrastate-armed conflicts or other cases of internal unrest are

by far the reasons most often asserted for declaring a state of emergency. In
this case, there lies a danger of the abuse of the right of emergency in the
interests of the doctrine of national security. Article 4(1) therefore contains
a requirement that a state of emergency only permits derogations when it
threatens the life of the nation. The danger must not be imagined or simply
feared, but rather the life of the nation must be actually and directly
threatened to an exceptional extent. The following criteria have been held
to be indicative of a state of emergency threatening the life of the nation: a
true, direct threat, whose effects concern the entire nation and make
uncertain the continuation of the community‘s organized life, which cannot
be sufficiently averted with normal possibilities for limitation of rights.
VIII. Conclusions
The rules of international Humanitarian law are intended to provide

protection for victims of armed conflict. This regime has been criticised as
inadequate in performing its task in modern-day armed conflicts. Many
practitioners and academics regard humanitarian law as largely irrelevant in
armed conflict or place more confidence in the ability of human rights law,
55
Vienna Convention on the Law of Treaties of May 23, 1969.
56
See the Amendments to the United States‟ Bill of Rights Act of 4 May 1984.
rather than IHL, to adapt itself to provide effective safeguards for the
protection of the victims of armed conflict.57 Although, when questions are
raised as to the adequacy of these provisions, the most frequent response is
that the rules are sufficient and that what is needed is better enforcement.58
In the final analysis, when a public emergency exists and has been officially
proclaimed, a State may take measures derogating from their obligations
under the ICCPR. In armed conflicts, the targets of derogation have been
mainly personal liberty, freedom of movement and privacy, the guarantees
of the rule of law and the exercise of political rights and freedoms.
Derogation of non-derogable rights in this case would be unlawful and a
violation of the provision of the ICCPR.
It is evident from the above exposition of the law that victims of armed
conflict and particularly the vulnerable populations are entitled to a
preferential protection in times of armed conflict both under the human
rights law and the humanitarian law. Although the ICCPR in Article 4(1)
provides that state parties may derogate from certain rights in life when a
state of emergences is officially proclaimed, governments that have been
involved in civil wars recently, especially in Africa, have not officially
proclaimed any state of emergency. A manifestation of this scenario is that
the State has ceased to be a guardian of the security of its citizens and has
become a source of threat to them.59 What is at stake in this scenario is the
plight of the defenseless and innocent civilians who are entitled to be
protected by the State. The questions that come to mind are: In these
circumstances, who is to protect the defenseless? What is the liability of
57
J. Garden and H. Charlesworth; ―Protection of Women in Armed Conflict‖, Human
Rights Quarterly, Vol.22, No.1, pp.148-166.
58
ibid at 160.
59
Roger Kibasomba and Bjørn Møller; ―Europe and the Great Lake Crisis‖ in Conflict
Prevention and Peace-Building in Africa, Report from the Maputo Conference, 28-29 June
2001at p.106.
those who fail to protect them? What is the liability of the perpetrators of
the atrocities?
All the above questions point to the analysis of the problem in the present
discourse-the need to provide adequate protection to the victims of armed
conflicts. Conversely, the structure for defending the defenceless during
war is porous. Thus, there is need to build a solid fence in order to
ameliorate suffering and restore peace. As has been noted, in armed unrest
where the plight of the defenceless has been at stake, the international
community felt impelled to respond to protect the victims, by way of
international humanitarian interventions involving the UN, international
human rights and humanitarian agencies and military units. Therefore, it is
necessary to close the gaps and construct a synergetic and strategic working
relationship among these humanitarian components in order to adequately
protect the rights of the victims of armed conflict particularly the
vulnerable.
It has also been brought to the fore that eventhough the rules of International
humanitarian law and those of the International human rights law are
synthetically different in their outer form and inner spirit, they are both
symbiotically inevitable for the protection of victims of armed conflicts in
Africa. What matters should, I submit, not be the differences between the
two aspects of laws but the synergy they can both offer in the protection of
the vulnerable in times of armed conflict especially in Africa where internal
armed conflicts have almost ripped the continent apart.
MEDICAL ETHICS: MEDICAL NEGILIGENCE AND

CONSUMER PROTECTION ACT – ANALYSIS
Dr. B. Venugopal, M.A., M.L., Ph.D (Law)1
The interface between law, medicine and ethics is a subject of great

contemporary interest and relevance. New Developments in Medical
Practice and research are constantly in the headlines and the advancements,
in knowledge that this represents creates new knowledge, on an almost
daily, as on academic Medical ethics has developed its own specialized
vocabulary, including many terms that have been borrowed from
philosophy. From Hippocrates came the concept of medicine as a
profession, whereby physicians make a public promise that they will place
the interests of their patients above their own interests. In recent times
medical ethics has been greatly influenced by developments in human
rights. In a pluralistic and multi cultural world, with many different moral
traditions, the major international human rights agreements can provide a
foundation for medical ethics that is acceptable across national and cultural
boundaries2.
India is a country where ―Doctors‖ are flourishing with several
enjoying roaring practice and many dedicated and striving to make best of
bad situation, becoming successful and there after famous. India is also a
country of over-crowded, unhygienic, understaffed private hospitals and
nursing homes which offer state of the art medicine with expensive and
scanning has been introduced the concept that the patient is a ‗consumer‘
and that medical professional are statutory responsible and legal
1
Associate Professor, Department of Legal Studies, University of Madras, Chennai – 600
005.Email: bangaruvenu@gmail.com
2
Purusottam Behra, Medical Law and Ethic, Mittal Publications, New Delhi, 2007 at page
6
accountable3. People seeking Medical aid should be enabled to know who is

qualified and unqualified practioners. For that An Act was passed by the
British parliament in 1858. That Act is Medical Act 1858, The aim of the
act is to maintain an official register of Medical practioners to control the
profession and over the curriculum and examinations of Medical Colleges.
This Act was amended in the year 1950, and amended at was known as
Medical Act 1950 passing the qualifying examinations will not be entitled to
practice, unless he or she has spent a year in residential appointment at an
approved hospital.
In 1916, the Government of India passed the India Medical Degree
Act, Known as Act no. VII of 1916 to regulate the grant of titles in implying
qualifications in western medical science4. In the year 1933, the Indian
Legislative Assembly passed Indian Medical Council Act 1933 (Act No.
XXVII of 1933) Now Indian Medical Council Act 1956 and the Indian
Medical (Amendment) Act 1964. The Medical Council recognizes. For the
purpose of this Act those Medical Qualifications granted by medical
institutions in India and which are included in the first schedule 5. The
Medical Council also recognized the Medical qualification granted by
Medical Institutions outside India which are included in second Schedule6.
In England the privy council in the case of Bhandari V Advocates
committee7 has opined that in every allegation of professional misconduct
involving an element of deceit or moral turpitude it is the duty of the
investigating medical council tribunal to apply a high standard of proof and
not to condemn on a mere balance of probability. As per the Amendment
Act 1964, the council has now recently prescribed standards of professions
3
Medical Negligence, case book of English and Indian cases. N. Vijaykumar & Co. S.M.
Malik. 2008 S. Vishanthan printers & Publisher, Chetpet, Chennai – 2008 Page 272.
4
Dr. Jaising, P.Modi, (Retired Principal) Medical Jurisprudence and Toxicology. Section I,
Medical Jurisprudence, Bombay 1967, at p429.
5
Vide the Indian Medical Council Act, 1956, pp 13-14.
6
Ibid pp15,16,77.
7
1956, 3 ALL.ER. 742.
conduct and etiquette and a code of ethics for medical practioners. At the
time of Registration, each applicant shall submit the following written and
signed declaration. i.e. pledge8. In addition to the guidance given in the code
of ethics that every physical is remembered their duties such as use
necessary skill, and attention. Neither the police nor any other official has
the right to force a physician‘s services without his consent except during
military necessity9. To furnish his patients with proper and suitable
prescriptions. If he has no dispensary of his own he should legibly write
prescriptions, using such abbreviations as are usually employed and
mentioning full detailed instructions in language which the chemist or
pharmacist dispensing prescriptions, can readily understood. He is help
responsible for any damage in health, caused to the patient as result of his
understandable instructions mentioned in the prescription.
A medical practioner must remember that he is not entitle to
examine a person without his consent, without may legally become an
assault and a trespass upon the person. Informed consent is very essential
when a any treatement is being rendered to a patient whether it be an
invasive or non invasive procedure. In Rambiharilal V. Dr. J.N. Srivastara10
the issue was discussed, there the courts found the operating surgeon liable
for procure an ‗informed consent‘ form chloroform which was the
anesthetic used during the surgery. Operative procedures require a special
written consent and also blood transfusion; its risks should be explained.
Consent is express, i.e. Real Consent, Transfusion without consent is legally
a tort or civil wrong.
Professional negligence may be defined as want of reasonable care
and skill, or willful negligence on the part of a medical practitioners in the
treatment of a patient with whom a relationship of professional attendant is
8
Geneva declaration accepted by the General Assembly of the World Medical Association
at Landon October 12, 1949.
9
Carl Scheffel, Medical Jurisprudence, 1931, p.84.
10
AIR 1985, madhyapradesh 180.
established so as to lead to his bodily injury or to the loss of his life. An

action for negligence may be brought against a medical practitioner in a
civil or criminal court. For civil negligence patient bring an action for
damages in a civil court against the practioner. If, he has suffered injury in
consequence of negligence. The liability of doctors is not unlimited,
surgeons, doctors are not insurers or guarantors of life. They are not liable in
law merely because thing goes many. The law requires them to exercise
professionally that skill and knowledge that belong to the ordinary
practitioner. In the case of negligence action. The thing speaks for itself
(Res ispa loquitor) doctrine may provide this missing element by conclusion
from the nature of injury. For criminal negligence. After opening the
patient‘s abdomen when he decided to remove the gall bladder, the surgeon
failed to get the consent of the patient‘s husband. Who was waiting in the
hospital. Based on these findings the court found the doctor negligent on
two courts. One, for not in forming the patient and her husband about of
chloroform which was the anesthetic agent to be used and two, not
procuring the consent before removing the gall bladder.
Medical practitioner, whether qualified or unqualified may be
prosecuted by the police and changed in a criminal court with having caused
the death of his patient by doing a rash11 or negligent act not amounting to
culpable homicide under section 304-A, IPC, if the death was result of gross
carelessness, gross negligence or gross ignorance displayed by him during
the administration of an anesthetic, performance of an operation or any
other treatment. In Privy Council appeal12 in which a Medical Practitioner
prepared on injection which he gave to fifty seven children of whom ten
died and others were made gravely ill, it was held that the medical
practitioner‘s one act of carelessness in preparing too strong a solution did
not amount to criminal negligence. The doctrine of contributory negligence
11
Section 337 of Indian penal code.
12
John oni A kerele V. The King; 44cr in law Journal, 1943 p569
does not apply to criminal liability when the death of a person is caused
partly by the negligence of the accused and partly by the deceased‘s own
negligence.
Section 211 of the IPC seeks to protect a doctor from malicious
prosecutions, knowing that there is no just or lawful ground for such
proceeding or charge shall be punished with imprisonment of either
description for a term which may extend to two years or fine or with both.
In this situation a doctor can file a quash petition‖ in the High Court,
praying for quash of criminal proceedings in the trial court, when the
criminal case filed against him is devoid of substance. In Dr. V. Rugmini Vs
State of Kerala13 a pregnant women was examined and assurance also given
to her condition. After that women delivered a baby and subsequently both
the mother and the child died. The police registered a case under section 304
A, IPC and doctor a filed a quash petition. The Court dismissed the quash
petition filed by the doctor on the ground that the complaint disclosed
sufficient averments as regards commission of the offence under section 304
A.
There is a lot of anxiety within the medical profession regarding the
scope and sanction of law available with the patients if they resort to filing
complaints against the medical practitioners, cases of medical malpractice
are decided on certain general principles and guidelines laid down by the
courts14.
1. Every patient who pays or has promised to pay for treatment can
sue the doctor for alleged negligence.
2. If the patient has died, the legal heirs have the right to sue.
3. Government hospitals/charitable organizations are out of

purview.
13
1987, CRLJ 2000
14
Anoop K. Kanshal, Advocate, Lawyers update, Sep 2007, Vol XIII, part 9, at p 30.
4. Ratio of Cases decided against doctors is not very high. It is

because the cases are not supported by Medico-Legal evidence.
5. Prima Facie negligence (Legal Principles of ISpa Loqiutor)

matters – the onus shifts on the doctor and he has to come out the
circle of obvious guilt.
The Consumer Protection Act, 1986 was enacted by the parliament

of Indian to safeguard consumer interest, In order to achieve and maintain
adequate protection for consumers from hazards to their health and safety,
and to ensure availability of effective consumer redress. Consumer Courts
were established for the settlement of consumers disputes and related
matters. The Act protects not only the Interest of a consumer when he
purchases goods and services for daily use, but also protects his interests
when he goes for treatment to Medical Professional.
In Dr. A.S. Chandra Vs Union of India15, the Andhra Pradesh Court
observed that private hospitals and Private Medical Practitioners provide
service for a consideration, that is, for a fee, Hence their service will be
considered as service for the purpose of section 2(1) (0) of the Act. In
Cosmopolitan Hospitals and Another Vs Smt. Vasantha P. Nair16. In the
Case of Sowbhagya Prasad Vs State of Karnataka17 and Harbhajan Singh
Vs Dayanand Medical College and Hospital and another18 view that
Medical services in government run hospital cannot be considered as service
under the Consumer Protection Act. Whereas in the case of Smt. Sukanti
Behera Vs Sakshi Bhusam Rath19 expressed the differently. In the case of All
India Medical Association20 Supreme Court held.
15
(1992) 1 Andhra Law Times 713.
16
1 (1992) CPJ 302 (NCDRC)
17
1 (1992) CPJ 402 (Ker. SCDRC)
18
1996(3) CPJ 263 and 1994(1) CPR 518 (Punj. SCDRC)
19
11(1993) CPJ 633 (Orissa SCDRC)
20
AIR 1996 SC 550.
The definition of services in section 2 (1) (0) of the Act divided into
three parts – The Main Part; the including part and the exclusionary part.
The main part is explanatory in nature and defines service to of any
description which is made available to the Genuine Users. The including
part includes providing facilities such as banking, transport, electricity
energy, housing, entertainment. The excluding part excludes rendering of
any service free of change or under contract of personal services. The
inclusive part of the definition of ‗Service‘ is not applicable and we are
required to deal with the questions failing for consideration in the light of
the main part exclusionary part of the definition. The exclusionary part will
require consideration only if it is found that in the matter of consultation,
diagnosis and treatment a medical practitioner or nursing homes including
hospitals renders service falling within the main part of the definition
contained in Section 2(1) (0) of the Act. We have, therefore, to determine
whether medical practitioners and hospitals can be regarded as rendering a
―Service‖ as contemplated in the main part of section 2(1) (0)21 on behalf of
the Indian Medical Association and Council argued that the organization
adequately equepted to handle complaints of medical doctors. The Court
rejected and held.
Medical Practitioners, though belonging to the Medical Profession
are not immune from a claim for damages on the ground of negligence. The
fact that they are governed by the Indian Medical Council Act and are
subject to the disciplinary control of Medical Council also no solace to the
person who has suffered due to their negligence and the right of such person
to seek redress is not affected22. In Supreme Court observed in the case of
Dr. J.J. Merchant Vs Shrinath Chaturredi23. Only the exceptionally
complicated cases requiring recording of evidence of expects asked to
21
Ibid Para 17.
22
Ibid Para. 26.
23
(2002) CTJ 757 and JT 2002 (b) SC1.
approach the civil court for relief under the Act24. The Apex Court
understands that majority of Medical negligence cases are complicated and
require. The evidence of experts it is no doubt that consumer courts are also
seeking expert evidence to settle these disputes.
In Poonam Verma Vs Ashwin Patel and Others25 a Homeopathy
doctor who prescribed Allopathic Medicine to the patient as a result of that
patient dies, The was held to be negligent and liable to pay compensation to
the wife of deceased for the death of husband on the ground that the doctor
was entitled to practices only homeopathy medicine under a statutory duty
not to enter the field of any other system of medicine; his conduct amount to
negligence per se actionable in civil law.
In Dr. Suresh Gupta Vs Government of NCT of Delhi and Another26
the patient dies while a plastic surgeon removing his nasal deforming. While
conducting the operation the surgeon gave invision at wrong part due to
which blood deeped into the respiratory passage and the patient expired.
The surgeon was prosecuted order Section 304 A of the IPC, while the
Doctor filed a quashing petition was dismissed by the High Court in it. The
Doctor approached the Supreme Courts submitting that even if the entire
case of prosecution was accepted. There was no case for convicting him,
allowing appeal. Supreme Courts held.
Thus a Doctor cannot be held criminally responsible for patient‘s
death unless his negligence or in competence showed such disregard for life
and safety of his patient as to amount to crime against the state27. The
Hon‘ble Supreme Courts of India in Jacob Mathew Vs State of Punjab28 has
held that if the patient dies after treatment, and a case under the Indian
24
Section 3 of the CPA Act.
25
(1996) 4 SCC 332
26
(2004) 6 SCC 422
27
Sushile, Liability of Medical Professionals under the Criminal Law: Recent Judicial
Trends. National Capital Law Journal Volume XII-XIII, 2007, 2008. Sudhir Printers,
Kardbyh, New Delhi 110005. P.169.
28
AIR 2005 SC 3180.
penal code, section 304, is filed, doctor should not ordinarily be arrested by
police on an FIR unless it has obtained a reports on the case by a Medico-
Legal Board of experts. It may have come as relief to the Medicine men, but
at the same time, it also ensures that there is collection of some piece of
expert evidence at the initial stage itself, which otherwise is not so easy,
sometime impossible. Supreme Courts further agreed with the principles
laid down in Dr. Suresh Gupta‘s case and reaffirmed the same.
In Parojmit Singh Grewal Vs Cheranjit Singh Chanla29, the NC
DRC held that ―there is no material to hold that the revision petitioner was
negligent in treating the respondent. The revision petitioner did not maintain
a proper written record of the treatment given by him and national for giving
such treatment. Hence to the extent there is deficiency of service. In this
case high lights the differences in the concept of negligence under the law of
Torts and deficiency of service under the Consumer Protection Act. There
was no injury to the patient and the doctor was not held negligent, yet there
was deficiency of service on the part of the medical professional for not
maintaining records. The consumer protection courts also calculates the
compensation as the civil courts30. The Supreme Courts in Laxman
Thamppa Katgiri Vs G.M. Central Railway and Others31 relying on its
reasoning in the IMA held that service rendered to an employee and his
family members by a medical practitioner or a hospitals/nursing home on
the basis of his conditions of service and where the employer becomes the
expenses of medical treatment was also come within the purview of
Consumer Protection Act.
29
RP No. 1475 of 2000, directed by the NCDRCCN 19 October 2006.
30
1996 (3) CPJ 605 CGJSCDRC.
In M/S Spring Meadows Hospital Vs Harjot Ahluvalia through K.S.

Ahluvalia and Another32 the first major compensation case Act of liability
for negligence by a Medical Professional in Consumer Law.
No doubt the Consumer Protection Act mainly to safe guards the
interests of the consumers as well as patients; but in practical some
unscrupulous patients here started using it as weapon to blackmail the
Medical Practitioners and Hospitals. Any false Complaints was filed against
the doctors, the Section 2b of the Consumer Protection Act come to the
reserve of the doctors that if the complaint is false, frivolous or fabricated,
the form will dismiss the petition and also impose a fine up to Rs. 10,000/-
on the false complainant.
In K. Jeyaran Vs Poora Hospital and Research Centre and Other
(3(1993) CPJJO CNCDRC) the patient developed chest pain on 21st
September 1990 and was admitted to the Hospital. He complained in
shifting him to ICCU ward and also like malfunctioning of ceiling fan,
emergency bell and he levied compensation. The NCRDC held that
complaint was malafide, frivolous, and vexatious and was a misuse of
consumer protection act and directed the petitioner to pay Rs. 10,000/- as
cost to the Hospital.
In Baby Pretti Goel (Minor Vs Batra Hospital and Medical Research
Centre and Another Co.P.No. 166 of 1996, divided by the NCDRC on the
6th November 2006. The NCDRC held that there was no Medical
Negligence at all in the case and directed the complaint to pay Rs. 1000/- as
cost to the hospital for filing this loss complaint.
In every profession there may be false complaint filed. Misuse of
law as well as consumer protection Act, but the strength of consumer
protection Act is in it contains the provisions to check frivolous and
32
(1998) 4SCC 39
spenelsive complaints. Doctors who follow the Medical Ethics, Medical

Council Rules need not worry about the Consumer Protection Act.
Ethics constitutes the branch of philosophy dealing with values
relating to human conduct, with respect to the goodness and the rightness of
motives and actions. Thus for, the matter is easy. The difficulty arises in
defining goodness, society definition changes over time, society used to
believe it was good for the market place to be governed by the rule of ―Let
the buyer beware‖ Gradually, public opinion came to regard this as not
good, and much of modern law, with its protection of the consumers, is
based on ―Let the Seller Beware‖, Let the
Doctor Beware‖.;
MEDICAL ACCOUNTABILITY AND THE RULES OF

NEGLIGENCE IN INDIAN LEGAL SYSTEM
Ms. Aishwarya Kadam*
INTRODUCTION
Man is the only animal who believes in keeping order in his world. This was
one of the reasons that he invented the concept of law. Law helped every
man who suffered from an injury due to the acts committed by others, to
seek remedy by means of compensation or punishment to the person
committing that act. It was in this time that the field of medicine was
developing. Since no man is perfect in this world, it is evident that a person
who is skilled and has knowledge over a particular subject can also commit
mistakes during his practice. Such mistakes in the medical profession may
lead to minor injuries or some serious kinds of injuries and sometimes these
kinds of mistakes may even cause death. In such situations there arises a
need for a remedy to the injured people so that justice is upheld and this
gave rise to the concept of medical negligence.
Medical profession as distinguished from trade is based on higher ethical

standards. Medical profession has its own ethical parameters and code of
conduct. This profession is rendering a noble service to humanity and has
sustained itself on public trust. Any person or professional who serves the
public has to do his duty not as a matter of contract, nor in consideration of
the fee collected, but as an organized public service. The principle of public
service is thus a major component of all professions and medical profession
cannot be an exception to it.
Cases of medical negligence arise from a diffuse and diverse set of

circumstances. We would argue that by addressing the issue of medical
*LL.M, NET JRF, Assistant Professor, ILS Law College, Law College
Road, Pune
negligence, we are dealing with some of the most difficult problems that
arise from complaints within the field of medical profession. But we must
note the significance of medical negligence as an issue in its own right and
not simply as part of broader contents of complaints about health care and
compensation for victims of medical negligence.
The consumer movement in the health care sector in India is at the

crossroads. On the one hand, public awareness has been increasing, while
on the other, the standard of health care delivery has been deteriorating, the
situation is complex in our country due to different disciplines of medicine
which have been traditionally and historically practiced. Regulation of
different disciplines is very important. However, this aspect has remained
neglected over the years. The consumer is caught in a trap. On the one hand,
he has to deal with the powerful combine of an ill-equipped, uncontrolled
medical profession, defunct regulatory bodies, and an overburdened legal
system and on the other hand, has to face a grim health situation and the
maladies arising out of it.
With the emergence of major private hospital and nursing homes, the doctor
does not belong to the patient; he belongs to the institution. With
materialism replacing moral and spiritual values, the system of cuts and
commissions by and large governs the medical profession. Today that divine
relationship has been and is being changed to that of mostly mature
relationship. The doctor offers service, the patient is a consumer and so, if
there is any shortfall in the services, being offered the doctor should be held
responsible for his own shortcomings.
Thus, medicine which is used to having a personal equation between the

doctor and patient has become a high-tech profession, often devoid of
human touch. Medical negligence is one of the main areas of professional
negligence in which the patient is always at the mercy of doctor and quite
often victims of their negligence. The patient‘s position is such that he may
not know and may not be able to establish what treatment he had received
and how his injuries have been caused. Hence, there is a great need of
medical accountability and the rules of negligence, as evolved by courts
from time to time are required to fill in this vital gap. In this synopsis we are
going to see how medical professionals are made accountable for their
negligence or substantial shortcomings in the services they provide to the
patients.
Definition and Meaning:
Negligence is a very wide term and it cannot be defined precisely. Various

meanings may be attributed to negligence. Negligence can be defined as a
person‘s breach of duty that is imposed upon him to take care, resulting in
damage to the complainant. So the essential components of negligence are
as follows1:
1. The existence of a duty to take care, which is owed by the defendant to the
complainant,
2. The failure to attain that standard of care, prescribed by the law, thereby
committing a breach of such duty, and
3. Damages, which are both casually connected with such breach and
recognized by the law, have been suffered by the complainant.
Many rules of negligence law have been changed over the years due to
constant change in perception of public interest. What constitutes
negligence and what does not also differs from time to time according to
development of society and resources available.
1
Charles Worth and Percy on Negligence, 9th Ed. P.16 (1.26).
After defining negligence the question arises that what constitutes

Professional Negligence? It is the knowledge about the legal injury
resulting in the course of care or service rendered by a professional due to
lack of sincerity in his duty towards his client and lack of reasonable care.
Anyone who practices a profession or is engaged in a transaction in which
he holds himself out as having professional skill, the law expects him to
show the amount of competence associated with the proper discharge of the
duties of that profession or trade, and if he fails and injures someone in
consequences, he is not acting reasonably.
It is widely believed that practicing medicine is a noble profession and also

there appears to be some still believing that a man of medicine is a
missionary and so he takes the oath of service for the suffering human
beings. However, today like everything else in this society, this noble
profession stands commercialized. A section of medical practitioners seem
to be propelled more by greed than the desire to serve suffering humanity.
There are some doctors who have become casual and insensitive to the
professional practice. Thus, more medical accidents are reported in day to
day life. It shows that there is a delinquency, culpability, deviancy, rashness
or negligence on the part of doctors while treating a patient, due to this
reason courts are overloaded with cases of medical negligence.
The law does not define medical or professional negligence as a form of

conduct that should be set apart from the conduct of any other member of
the society offering a service. In the strict legal sense, no distinction is to be
drawn between the negligence of a doctor, builder or insurance agent. The
concept rests entirely on the existence of a duty of care, which is owed by
all individuals in society to all other individuals.
Judicial Development
A doctor when consulted by a patient owes him certain duties viz., a duty of
care in deciding whether to undertake the case, a duty of care in deciding
what treatment to give and a duty of care in the administration of that
treatment. A breach of any of these duties gives a right of action for
negligence, to the patient2. To hold a medical practitioner liable, the
aggrieved person must be able to establish to the satisfaction of the court
that: -
 The doctor owed him duty of care of a particular standard of professional

conduct,
 The doctor breached that duty,
 The patient suffered actual damage, and
 The doctor's conduct was direct and proximate cause of damage.
In Bolam v. Friern Hospital Management Committee3 it was laid down

that, a doctor who acts in accordance with a practice accepted as proper by a
responsible body of medical men, is not negligent merely because there is a
body which takes a contrary view. The test is the standard of the ordinary
skilled man exercising and professing to have that special skill. A man need
not possess the highest expert skill, it is well established that it is sufficient
if he exercises the ordinary skill of an ordinary competent man exercising
that particular art.
The same standard of care is applicable to hospitals as to individual doctors

with the difference that the basis of liability of hospitals is based on
corporate liability. The hospital is directly responsible for the maintenance
2
Dr. Laxman Balkrishna Joshi v. Trimbak Bapu Godbole AIR 1969 SC 128.
3
1957 (1) W.L.R.582.
of an acceptable standard of care of patients and cannot escape the liability

even when no fee is charged for services rendered unless every patient is
treated free of charge. This has been laid down by the Supreme Court in
Indian Medical Association vs. V.P Shantha and others4.
Supreme Court in Paschim Banga Khet Mazdoor SamitiV. State of West

Bengal5has held that providing adequate medical facilities to the people is
an essential part of the obligation undertaken by the government in a
welfare state. Article 21 imposes an obligation on the State to safeguard the
right to life of every person and for breach of which one can move the
Supreme Court or High Court through writ petition.
Victims of medical negligence, considering action against an erring doctor,

have three options:-
a) Compensatory- Seek financial compensation before the Consumer Disputes

Redressal Forum or before Civil Courts,
b) Punitive- Lodge a criminal complaint against the doctor.
c) Corrective-. A complaint can also be lodged with Medical Council of India

together with State Medical Councils seeking cancellation of the doctor‘s
license. It is the Medical Council which gives doctors their license to
practice, the license can be withdrawn if the doctor is found guilty of
misdemeanors.
Doctors were initially excluded from the ambit of the Consumer Protection
when these courts were first set up in 1986. The Supreme Court‘s judgment
in the Indian Medical Association v. V. P. Shantha and others6,has
brought them within its purview.
4
AIR 1996 SC 550.
5
1996 (8) SC 43.
6
Supra at 4.
As far as criminal cases against doctors are concerned they are lodged
mainly following the unnatural death of a patient under their care. The
section employed is usually Sec. 304-A of the Indian Penal Code for a rash
or negligent act not amounting to culpable homicide and carries maximum
imprisonment of two years, or a fine, or both.
Following the recent Supreme Court judgment in Suresh Gupta v. Govt. of

NCT of Delhi7, criminal cases against doctors are likely to register a steep
fall. The apex Court said that for fixing the criminal liability of the doctor
the standard of negligence required to be ascertained is whether it is ―gross
negligence or recklessness‖. The mere lack of necessary care, attention and
skill will not constitute gross negligence or recklessness.
The Supreme Court‘s judgment in the Jacob Mathew‟s case8 goes one step
ahead by defining what constitutes ‗gross negligence‘ by stating that there
should be a clear intention backed by strong evidence attributable to the
doctor to make him criminally liable.
In the case of Martin F. D‟Souza V Mohd. Ishfaq9 kidney transplant and
medicines being administered post-operation wherein there is a dispute
about the medicine itself and the dosage. In 1991, the patient who was
suffering from chronic renal failure went to Nanavati Hospital, Mumbai for
kidney transplant. He was undergoing haemodialysis twice a week. Later he
got his kidney transplant done at Prince Aly Khan Hospital. During his
treatment at Nanavati Hospital he did not complain of deafness. At Nanavati
Hospital he was prescribed Amikacin of 500 m.g. twice a day for 14 days.
Much later, the patient filed a complaint at the National Consumer Dispute
Redressal Commission, New Delhi and claimed compensation of Rs. 12
lakhs as his hearing had been affected. He complained that the dosage of
7
2004 (6) SCALE 432.
8
JacobMathew v. State of Punjab (2005) 6 SCALE 130.
9
AIR 2009 SC 2049
Amikacin was excessive and caused hearing loss. The matter finally went to
the Supreme Court. Almost all earlier cases pertaining to medical
negligence have been discussed by the Supreme Court in the instant case
and it was held that the doctor and the hospital were not negligent.
Interestingly, this case very strongly defended the position of doctors vis-à-
vis the patients. The court has made an interesting observation:
……the law, like medicine, is an inexact science. One cannot predict with
certainty an outcome of many cases. It depends on the particular facts and
circumstances of the case and also the personal notions of the Judge
concerned who is hearing the case. However, the broad and general legal
principles relating to medical negligence need to be understood…….
In Minor Marghesh K. Parikh V Dr. Mayur H. Mehta10Marghesh, a

minor, was admitted in Dr. Mehta‘s hospital with the complaint of loose
motions. He was injected glucose saline through his right shoulder and later
through the left foot, which swelled and turned black upto the knee. He was
taken to another hospital where the doctor amputated the left leg below the
knee as he had developed gangrene. Marghesh, through his father, filed a
complaint in the State Commission and claimed compensation for the
negligence of Dr. Mehta. It was allowed. Dr. Mehta appealed in the
National Commission, where it was held on the basis of expert opinion of
another doctor that there could be ten other reasons for gangrene. Marghesh
appealed in the Supreme Court, which took strong objection to the National
Commission‘s decision based on the solitary ground of an expert opinion
and did not pay any attention to Dr. Mehta‘s conduct during the
proceedings. Dr. Mehta did not produce the case papers for six long years
and did not produce a very important key witness, a doctor who also
involved in the treatment. The Supreme Court allowed the appeal with the
10
AIR 2011 SC 249
observation that the National Commission should have been much more
diligent and cautious.
This judgment gives in a nutshell, most of the recent cases decided by the
Supreme Court. It is more to do with the way the National Commission
functions and also a missive as to how the Consumer Courts need to
exercise discretion. The facts of the case very clearly tell us that the patient
was not brought in a precarious condition to Dr. Mehta‘s hospital and the
treatment given resulted in amputation of the left leg. There was no apparent
reason for this to happen and hence, Dr. Mehta and his hospital are prima
facie liable. However, the Supreme Court remanded the matter to the
National Commission to be finally decided in a speedy manner.
The most important element in a case of negligence or a malpractice suit is

that the patient must prove that the failure to take any action or negligent
action by the doctor was the direct cause of harm suffered by him. In most
of the cases of negligence, Res Ipsa Loquitor11 doctrine is applicable.
Ordinarily in cases of medical negligence the onus is on the patient to prove
that the act of doctor was negligent. But when doctrine of Res Ipsa Loquitor
is applied the onus shifts from the patient to the doctor and doctor has to
prove that his act was not negligent.
―Medical service‖ falls under the purview of the Consumer Protection Act
in the following cases:
 Service rendered to a patient by a medical practitioner (except where the

doctor renders service free of charge to every patient or under a contract of
personal service), by way of consultation, diagnosis and treatment, both
medical and surgical.
11
Res ipsa loquitur means ‗the thing speaks for itself‘ is an exception to the general rule
that the plaintiff has to discharge the burden of proving negligence on the part of the
defendant.
 Service rendered at a non-Government hospital/Nursing home where

charges are required to be paid by the persons availing such services.
 Service rendered at a non-Government hospital/Nursing home where

charges are required to be paid by persons who are in a position to pay and
persons who cannot afford to pay are rendered service free of charge,
irrespective of the fact that the service is rendered free of charge to persons
who are not in the position to pay for such services. Free services would
also be "Service" and the recipient a "consumer" under the Act.
 Service rendered by a medical practitioner or hospital/nursing home if

person availing the service has taken an insurance policy for medical care
where under the charges for consultation, diagnosis and medical treatment
are borne by the insurance company.
 Where as a part of the condition of service, the employer bears the expenses
of medical treatment of a employee and his family members dependents on
him, the service rendered to such an employee and his family members by a
medical practitioner or a hospital/nursing home would not be free of charge
and would constitute service.
When the service provided by the medical practitioner falls under any of the
above categories and if there is any deficiency or negligence in his service
then he can be held liable under Consumer Protection Act.
A medical service does not fall under the purview of the Consumer
Protection Act in the following cases:-
 Where service is rendered free of charge by a medical practitioner attached

to a hospital/nursing home or a medical officer in a hospital/nursing home
where such services are rendered free of charge to everybody.
 Where services are rendered under ‗contract of personal service‘ and not
under ‗contract for personal service‘.
It is important to remember that the "Bolam test" is just one stage in the
fourfold test to determine negligence. First, it must be established that there
is a duty of care (between a doctor and patient this can be taken for granted).
Second, it must be shown that the duty of care has been breached. This is
where the Bolam test is relevant, because falling below the standard of a
responsible body of medical men means that person will be considered
negligent. But in addition, third it must be shown that there was
a causal link between the breach of duty and harm. And fourth, it must be
shown that the harm was not too remote.
The doctrinal shift
The House of Lords ruling in Bolitho signalled a shift away from Bolam. It
was no longer enough for the standard of care proclaimed by a defendant
doctor to be endorsed by a responsible body of peers. In minority judgment
comments in Bolitho, it was emphasised that the word "responsible" in the
traditional formulation of the Bolam test meant that responsible practice is
that which withstands the scrutiny of "logical analysis" from a judicial
perspective.
The clinical practice, however prevalent within the medical profession,

would perhaps be unlikely to withstand logical scrutiny if that practice is
contrary to a clear consensus emerging from the evidence base. In his
opinion delivered in the Bolitho case, Lord Browne-Wilkinson indicated
that experts should direct their minds to the question of comparative risks
and benefits in order to reach a defensible conclusion on the matter in
question. A clinical conclusion which does not have risk analysis at its heart
is not likely to be deemed a responsible conclusion.
Bolitho has called attention to this issue and will therefore take effect not
only in determining the logical basis of the course of action offered by the
defendant, but also by engaging more forcefully in assessing risk analysis.

Properly considered clinical guidelines will similarly weigh the risks and
benefits. This consonance with doctrinal changes may be a further factor for
evidence-based guidelines to play a greater part in medical litigation
proceedings.
Why Bolitho should be adopted in India
Unfortunately, medical negligence occurs every day in Indian hospitals and

there are believed to be almost a million such occurrences every year.
Around one in 10 patients are believed to suffer further as a result of their
treatment in hospital and a proportion of these people will go on to claim
personal injury compensation through a medical negligence claim.
The Bolitho test makes it possible to get quick relief as it increases the
burden on the medical practitioner and thus leaves more scope for
compensation. Unlike the Bolam test, the Bolitho test says that the court
should not accept a defence argument as being "reasonable", "respectable"
or "responsible" without first assessing whether such opinion is susceptible
to logical analysis. However, where there is a body of medical opinion
which represents itself as "reasonable", "respectable" or "responsible" it will
be rare for the court to be able to hold such opinion to be other than
represented. The Bolitho ruling means that testimony for the medical
professional who is alleged to have carried out the medical negligence can
be found to be unreasonable, although this will only happen in a very small
number of cases.
Looking at the increasing amount of litigation for medical negligence in

consumer forums in India, it is high time that the Indian courts adopt the
same model and implement it in the larger interests of the public.
Conclusion:
With the awareness in the society and the people in general gathering
consciousness about their rights, measures for damages in tort, civil suits
and criminal proceedings are on the augment. Not only civil suits are filed,
the accessibility of a medium for grievance redressal under the Consumer
Protection Act, 1986 (CPA), having jurisdiction to hear complaints against
medical professionals for 'deficiency in service', has given rise to a large
number of complaints against doctors, being filed by the persons feeling
aggrieved. The criminal complaints are being filed against doctors alleging
commission of offences punishable under Sec. 304A or Sections
336/337/338 of the Indian Penal Code, 1860 (IPC) alleging rashness or
negligence on the part of the doctors resulting in loss of life or injury of
varying degree to the patient. This has given rise to a situation of great
distrust and fear among the medical profession and a legal assurance,
ensuring protection from unnecessary and arbitrary complaints, is the need
of the hour. The liability of medical professionals must be clearly
demarcated so that they can perform their benevolent duties without any
fear of legal sword. At the same time, justice must be done to the victims of
medical negligence and a punitive sting must be adopted in deserving cases.
This is more so when the most sacrosanct right to life or personal liberty is
at stake.
An indiscriminate prosecution of medical professionals for criminal

negligence is counter-productive and does no service or good to the society.
There must be a link between fault, blame and justice requirement.
This may not be understood as holding that doctors can never be prosecuted
for an offence of which rashness or negligence is an essential ingredient.
There is a need for care and caution in the interest of society; for, the service
which the medical profession renders to human beings is probably the
noblest of all, and hence there is a need for protecting doctors from
frivolous or unjust prosecutions. Such malicious proceedings have to be
guarded against and genuine complaints must be ensued with extreme
punitive stings. Thus, a complainant has to produce prima facie evidence
before the Court to support the charge of rashness or negligence on the part
of the accused doctor.
HANDLING INTERNATIONAL ECONOMIC LAWS ALONGWITH

SUSTAINABLE DEVELOPMENT AND ECONOMIC DEVELOPMENT
Vinod Kapoor*
Priya Nagpal**
History
In July 1944, the Bretton Woods Conference gave birth to the International
Economic Institutions namely, the International Bank for
Reconstruction a Development (World Bank), The International Monetary
Fund (IMF) and the International Trade Organization. While the first two
commenced on 27th Dec, 1945, the International Trade Organization
could not be established due to the resistance from US Senate.
Alternatively, however, a protocol Provisional Application was signed
by 23 original members; India being one of the founder members. On 1st
January, 1948 the protocol introduced General Agreement on Tariffs and
Trade or GATT, to bring order in the 'law of jungle' in International Trade.
The GATT remained the only multilateral body, setting rules for
international trade from 1948 to 1994. The scope of GATT continuously
expanded with every Trade round.
International Economic Law: GATT trade round and creation of

WTO1
Eight Trade rounds of GATT took place, from 1947 to 1994. The eighth round
known as Uruguay Round continued for 8 years and had been the most
comprehensive and the most debatable one. It sheltered almost every Trade,
banking, telecommunication, transportation, pharmaceuticals, etc. it turned out
*5th Year Student, University of Petroleum and Energy Studies, Dehradun

**4th Year Student, University of Petroleum and Energy Studies, Dehradun
1
http://www2.econ.iastate.edu/classes/econ355/choi/wtoroots.htm
to be the largest Trade cooperation that has ever been undertaken in human
history.
Uruguay Round not only reviewed all the original articles of GATT', but
also encompassed outstanding policy issue like Trade in Services, Intellectual
Property (hitherto not dealt with GATT), reform in trade in Textiles and
Agriculture etc. there were a lot of differences among the member nations due to
which the round failed several times during these 8 years. Mr. Arthur Dunkel,
the Director General of GATT, presented a compromise draft - 'Final Act', which
became the basis for the final agreement. Finally, on 15th April, 1994 the
agreement was signed by the Ministers of almost all the participating countries
representing their Governments at Marrakesh, Morocco. The agreement, inter alia,
mandated creation of World Trade Organization to administer the agreements
on Trade, Services, and Intellectual Property Rights and like.
Introduction
The World Trade organization (WTO) is an international organization

which is formed to regulate and liberalize international trade. It was
established on January 1, 1995, it succeeded General Agreement on Tariffs
and Trade (GATT) which was created in 1947 and contributed to
international trade for almost five decades as a de facto international
organization.
The WTO frames rules and regulations for the trade among the countries
around the world; it helps in negotiations among the countries, it
implements new trade agreements, and is in charge of policing member
countries adherence to all the WTO agreements, signed by the bulk of the
world trading nations. The WTO‘s ministerial conference meets every two
years, which governs WTO. The general council ensures that the decisions
of the conference policy are implemented and also takes care about day to
day administration and a director- general, who is appointed by the

ministerial conference. The WTO's head quarters are located in Geneva,
Switzerland.
Mission, Functions and Principles Mission of WTO with respect to

Economic Laws
The main goal of WTO is to aim at the welfare of the people of its member
countries, specifically by reducing trade barriers and providing a platform
for negotiation of trade. Its main mission is "to ensure that trade flows as
smoothly, predictably and free as possible". The main mission is further
discussed in certain core functions serving and safeguarding five
fundamental Principles, which are the base of the multilateral trading
system.
Functions
Among the various functions of the WTO2, there are few which are regarded
by analysts as the most important. It oversees and controls the
implementation, administration and operation of the covered agreement.
(1) WTO is a platform for negotiations and for settling disputes.
(2) It revises and reviews the national trade policies, and to ensure the
coherence
(3) It ensures transparency of trade policies through surveillance in
global economic policy making.
(4) It assists the developing, least developed and low-income countries
transition to adjust to its rules and disciplines through technical
cooperation and training.
2
Dr. DInesh Raghuwanshi, WTO and Indian Banks Issues and Challenges, January, 2012
(5) It cooperates closely with other International Economic

organizations namely IMF and World Bank.
Principles
The WTO only establishes a framework for trade policies; it does not define
or specify outcomes. It only sets up the rules of the trade policy games.
Five Principles which are of particularly important in understanding both
the pre-1994 GATT and the WTO
1. Non discrimination: It has two major favored nations (MFN) rule, and
the both are embedded in the main WTO rules on goods, services and
intellectual property, but they are different in precise scope and nature
across these areas.
2. Reciprocity: It reflects both a need to limit the scope of free-riding that
may give birth to the scope of free riding that may arise because of the MFN
rule, and to a wish to obtain better access to foreign markets.
3. Binding and enforceable commitments: The tariff commitments made
by WTO members in a multilateral trade negotiation and on accession are
enumerated in a schedule of concessions. These schedules establish "Ceiling
Bindings" a country can change its bindings, but only after negotiating with
its trading partners, which could mean compensating them for loss of trade.
The complainant country can seek WTO dispute settlement procedure if
satisfactory claim is not met.
4. Transparency: The WTO members are required to issue and publish
their trade regulations, to maintain institutions allowing for the review of
administrative decisions effecting trade, to respond to requests for
information by other members, and to notify changes in trade policies to the
WTO.
5. Safety Valves: In specific circumstances, governments are able to restrict

trade. There are three types of provisions in this direction: articles allowing
for the use of trade measures to attain non economical objectives; articles
aimed at ensuring "fair competition"; and provisions permitting intervention
in trade for economic reasons.
Has International Economic Law(IEL) exceeded the limits and gone too
far off?
In giving a new structure to International Economic laws, the developed

countries have not played an important role and it is not surprising and have
never planned of any events and never played a major role in world
economy. Recently developing countries are under huge political and
economic pressure to give a new face to IEL and play crucial role in
globalization
.
The consequence of globalization on sovereignty has been witnessed by
most international relations, experts and researchers, specialists, political
economists and international lawyers. Such economists generally do not
interfere in international law or state sovereignty; some concepts of
globalization regarding globalization are inevitable. Political scientists and
lawyers explain the normative concepts such as sovereignty relates to proper
functioning and governing the world economy should be the political and
economic agenda of the authorities, rather focusing on empty normative
concepts. There are in general some social scientists that are more serious
regarding impact of globalization on sovereignty of state and international
law.
International lawyers and research have adopted a range of approaches to

understand and conceptualize the impact of globalization on IEL and
international law on whole. Most of these concepts have been realistic as

they attempt to incorporate the earth-shattering changes that have changed
the face in international economic law. José Alvarez in his documented
study provides clear-cut evidence that recently 15 international
organizations have taken the responsibility and have been careless in
incorporating international law rules and notes that this process is changing
the meaning and structure of sovereignty. A more motivated attempt to fight
with the profusion and complex nature of new international economic rules
is seen in the work of lawyers who have formulated principles and remedies
of administrative law to interpret the emerging IEL regulatory framework.
The weakness remaining behind this approach is that political problem
which is generated by current process of economic globalization can be
resolved by applying principles pertaining to USA and Europe. It does not
look at the domestic setup of administrative law is a core feature of the rule
of law, a high-quality and well-organized system of administrative law
presupposes a physically powerful political system, something that is sadly
missing at the international level.
Definition of IEL
According to author the definition of IEL covers the following sub-topics:

 Law of establishment,
 Law of investment,
 Law of economic relations and economic institutions, and
 Law of regional economic integration.
Yet there are others areas that would include further topics, including the
international law of development or law of human rights. In its widest
subtext, IEL consists of rules of public international law that directly
connected to economic exchanges between the subjects of international law;
hence definition also covers a significant part of the discipline of public
international law. If one broadens the ambit by including all those aspects of
international law that is affected by economic activities, then the discipline
of public international law would be completely covered and under ambit of
IEL. 3
Principles governing International Economic Law
Searching for economic sovereignty, developing states established the New

International Economic Order (NIEO).4 This ―new‖ rule emphasized on
permanent sovereignty over natural resources by the states. In trail of NIEO,
other objectives also included environment and sustainable development5.
Thus the states seeking developments, a state that is enthusiastic of
economic development has to have:-.
 Stable sovereignty over its natural resources

 Non-natural resources or economic activities also under sovereignty
which are under its jurisdiction; and including human resources
 Freedom to choose and carry out its own economic self
determination and governance principles.
 Prohibition on interference in its economic affairs by way of threat
or force.
International economic law focuses on the need of preserving the

environment and the sustainable use of natural resources. This obligation is
equal in nature on every state and there also lies an obligation on the state
not to damage the environment of nearby states or constitute environmental
threat thereof.
3
John H. Jackson, Global Economics and International Economic Law, 1998
4
Falk R.A. and Black C.E, The Future of the International Legal Order, Vol 1, New Jersey,
Princeton University Press
5
ibid
Discussing on Key Concepts

International economic law as explained enhances state‘s sovereignty,
promotes reciprocity and ensures economic sovereignty. It ensures safe
activities in areas of trade, commerce, investment, and development.
Under the support of international economic law, the NIEO for the
development of the ―third-world‖ countries was adopted by the United
Nations General Assembly.
Article 1, 2, 4 and 5 outlines the economic rights and duties of states.
Article 1 explains that every state has sovereign right to choose political,
social and cultural rights in accordance to its citizens without any external
coercion or force.
Article 2 states that every state has full sovereignty and possession over the
use and disposal of its wealth, natural resources and economic activities.
The state has power of supervision and control over foreign investment in
accordance to its laws and regulation in conformity to its national
objectives. It also has control over transnational corporations within its
jurisdiction and takes steps to ensure that such actions comply with its laws,
rules and regulations.
Article 4 discusses about the freedom of international trade and forms of

economic cooperation without any political, cultural and social interference.
No state shall be subjected to discrimination on such basis. State is free to
enter in economic relations, enter into treaties and bilateral and multilateral
treaties as per its requirements and wish.
Article 5 follows that state has right to associate and participate in

organizations of primary commodity producers so as to develop national
economy.
Economic Development
Development in the economic logic means activities that would lead to good
or positive change, to have control over material assets, intellectual property
resources and ideology; and obtain basic physical necessities of life
including food, clothing, and shelter, education, employment, equality,
medical needs, participation in government, gender justice, sustainable
development and peace, law and order.6
Schumpeter7 saw actual development as a course generated within and by
the society by forces propagated and revitalized by the active members of
the society, and that such a process cannot be started by foreign
participation.
The major flaw of Schumpeter's study of economic development lies in his
view of the interconnection between the social structure and economic
development where he directed that economic development cannot happen
unless the social structure was organized and structured to near perfection.
Karl Marx8 observed that there needs to be technological progress which is

a prime mover of capitalist growth and gave an important place to the
entrepreneur in his development analysis. Technological progress is
essentially labour-saving and capital-absorbing, the final result of which is
that when it gains momentum; workers are unemployed, adding to the
6
Dudley S, ―The Meaning of Development‖, Eleventh World Conference of the Society
for International Development, New Delhi, 1969.
7
Ebomuche N.C. and Njoku A.C, Development Economics, Owerri I.G. Publishers, 2005
8
Onyemelukwe C.C. Economic Underdevelopment: An Inside View, London Longman
1974.
industrial unemployment of the nation. By replacing of labour by capital,

wages are kept low by capitalists resulting in struggle in between the class
in which the capitalist group is defeated.
According to Hoffman9 economic development in any country provides

necessary indices of status and growth, but their true meaning for social
development must be measured by the degree to which potential well-being
is converted into the actual welfare and development of the people. Further
adds to describe human development is measured by physical, intellectual,
social, and moral development and welfare of man in the same way that a
truly developed society must be a moral society, a physically healthy
society, and an intellectually capable society.
According to Pearce and Warford10, economic development is defined as

achieving and fulfilling a set of social goals, and since these goals change
over time, economic development can be said to be a process as it is
achieved over a period of time gradually as the time passes by.
Developmental Stages of the Term or Concept of Sustainable

Development Global Attempts on Sustainable Development
International Economic Law previously did not pay heed to environmental

concerns. International economic and commercial actions continued to get
bigger until lately with little concern for the damage done to the
environment by these activities and threats caused.
After the Second World War period the main agenda of International
Economic Law was to promote the free movement of goods and capital
9
Hanson and Brembeck, Evaluation and Development of Nations, Holt Rinehart and
Winston Inc., New York 1966
10
Pearce D.W. and Warford J.J, World Without End: Economics, Environment and
Sustainable Development York, Oxford University Press 1993.
across borders and enhance exports and enabling states to utilize their
natural resources to the utmost extent possible for their economic
development. IEL tried to expand and commercialize without paying
attention to the environment aspect but lately environment law has
influenced IEL. The IEL principle of sustainable development, a relatively
new concept, has had a deep impact on IEL. Within the UN's economic
development agenda, the theory of economic development began in 1987
with the beginning of the concept of sustainable development, which sought
to compel some restraints on economic development in order to protect the
burning environment.
The Rio Conference11 considered both the environment and development,

and they considered it complimentary and connected to each other.
Principle 1 of the Rio Declaration which relates to Environment and
Development declared that human beings were at the utmost priority for
sustainable development. It declared that state has the right under IEL to
explore their natural resource in confirmation to their environment policies
Principle 2 of the Declaration stated that States have the responsible and
should ensure their activities within their jurisdiction and not to cause
damage to the environment threat of other states.
What is more important, principle 12 of the Rio Declaration injects the
sustainable development aspect into IEL issues and highlights the role of
IEL principles for the effective operation of the rules of international
environmental law.
Principle 12 declares that, States should cooperate to promote an
encouraging and open international economic system that would result in
economic growth and development in a sustainable manner in all countries,
and effectively control environment degradation. There should not be
11
Rio De Janeiro Conference, Brazil, 1992
arbitrary and unjustified discrimination on trade policy measures for

international trade. International consensus should be taken to have
environmental measures relating to trans-boundary or global environmental
issues
Sustainable Development
The emergence and persistent relevance of sustainability came towards end

of the 20th century. The shift in model from the final desire for economic
growth to sustainability becomes the new order and concept, which
international economic law tries to achieve. A wholesome understanding,
acceptance, adjustment and implementation of the concept of sustainable
development stand out as the major tool for achieving a balance between
economic, social and environmental objectives.12
Definition of Sustainable Development vis-à-vis IEL
Sustainable development meets the needs of the today without

compromising the skill of future generations to meet the needs of tomorrow.
Sole benefit of today and acts done presently should not harm coming future
is what IEL aims.
Sustainable development in respect over-population is directly alarmed with
increasing the adequate standard of living of the poor at the grassroots and
primary level, which can be measured by increasing volumes of food, real
income, education, health and medical, sanitation and water supply,
12
Nwafor J.C, E.I.A. For Sustainable Development: The Nigeria Perspective, Enugu,
EDPCA Publications, 2006
emergency stocks etc; and only indirectly concerned with economic growth
at national level.13
In other words, the primary objective of reducing the poverty of the world
by, having provision of permanent and safe livelihoods which lessens
resource wastage, environmental degradation, cultural disruption and social
insecurity.
Based on the previous, the principle of sustainable development must be
understood in terms as:-
a) Long lasting goal of resource management

b) Balance between societal, economic and environmental objectives
c) Development and not just growth is the dominant consideration.
d) Human desires are balanced.
e) Presumptions for economic growth are balanced by the requirements of
social equity.
International Economic Law and International Development Law
After World War II another concept which emerged and which the countries
had to face was International Development Law. It represented an effort to
find a more reasonable legal approach to the core areas of IEL, including
international trade relations and nation‘s responsibilities towards foreign
investors and their home countries. 14
International economic relations of developing countries, also the

development, fall within the region of IEL. Hence many scholars are of the
view international development law is a distinct branch of international law,
13
Barbier E. B. ―The Concept of Sustainable Economic Development.‖ Environmental
Conservation
14
C. Wilfred Jenks, Law, Freedom and Welfare 64, 1963
is a subset of IEL. IEL has a wider and broader scope and thus overpowers
International Development Law.
Emphasis on Developing Countries
Although sustainable development has a worldwide concept, however there

is a realistic angle for applying of the concept in developing countries. The
concept must be applied to environmental, socio-economic, political and
developmental spheres. Therefore, the circumstances of the developing
countries must be different. The developed countries are mostly disturbed
with ecological problems, pollution, global warming etc. The developing or
so called underdeveloped nations apart from meeting basic needs of the
citizens hardly focus on IEL so as to bring forward the nation in terms of
economic relation and trade, export which is beneficial for the nation. The
research and experts have proved and have significant evidences to show
that while everybody is pushing on the need for sustainable development,
the underdeveloped countries are far off from the world concern and
participating in the treaties, conferences and multilateral and bilateral
agreements which form a basis of IEL. What such countries need to
concentrate is on economic laws and rules which are being regulated by the
universal standard organizations. Even if their environment, ecosystem is
being harmed it would be cover by following such treaties and basic
necessities would automatically be fulfilled if trade, commerce, economic
regulation at international level are followed.
Environment is a basic need for the coming future generations. There should
be international concern to match development strategies and to guard both
the richer and economically backward countries; the developed and
developing countries, and also, the first and third world countries. What
affects the environment of one affects the environment of all.
Conclusion
This paper has clearly endeavored to show either directly or in some way
IEL has been concerned with economic and sustainable development.
Immediately after post-war period and until the 1980s, IEL was weak,
pathetic and almost of no use, thus allowing developing countries space to
formulate and regulate their own economic policies. During the recent
period of growing globalization, IEL has played a vital role as a vehicle for
executing laws and policies in the developing world. It has become a
requisite for developing countries implement a strict set of rules, while
developed countries, which are a world leader at promoting globalization,
have accepted these rules half-heartedly. Instead of handling the urgent need
to reform, modify, alter and replace old international institutions and build
new and effective new institutions to handle the process of globalization,
these countries have aimed at bilateral and regional planning, a strategy that
gives them sufficient political space to secure reward and returns over their
close economic competitors.
If the world‗s leading economically sound countries with higher reputation
and stake take seriously the task of incorporating new and more effective
institutions for the world market, and, if there emerges a new consensus
which is taken keeping in mind the requirements and needs of the
developing nations, there will then be a distinctive opportunity to establish
new IEL rules and procedures to maneuver and manage globalization. This
is a complicated mission which will be successful only if it is carried out in
consultation with all interested parties.
PROSTITUTION- A REASON FOR HUMAN

TRAFFICKING
Prachi Singh*
Risha Qureshi**
INTRODUCTION
„Each person is created with inherent dignity, therefore each person,
including women, should be respected because of this inherent dignity. In
her perspective, sex trafficking is a degradation of a woman‟s body and
destroys a woman‟s inherent dignity‟.
Prostitution is the second largest crime after the drugs and arms trafficking
in the world1 Women and children have been exposed to unprecedented
vulnerabilities; commercial exploitation of these vulnerabilities has become
a massive organized crime and a multimillion dollar business. They are now
being treated as an object for the benefit and the profit gained. India is
among the top countries that are related in the business of sexual
exploitation and commercial sex business and for this women of our
countries are exported to other countries. Human trafficking has been
defined variously. Prostitution is one of the major reasons for human
trafficking. Although, human trafficking comprises of both men and women
including children, but our article mainly focuses on the women and girls
who are trafficked for the reason of prostitution.
DEFINITION:
For the purpose of study, the working definition of trafficking which was
adopted has been stated in the U.N. Protocol to Prevent, Suppress and
Punish Trafficking in Persons, especially women and children,
*3rd Year student, Symbiosis Law School, Pune

**3rd Year student, Symbiosis Law School, Pune
1
National Commission for Women.
supplementing the United Nations Convention against Transnational

Organised Crime, 2000, to which India is a signatory.
UN Protocol on Trafficking (Article 3) defines human
trafficking or sex trafficking as, “Trafficking in persons shall
mean the recruitment, transportation, transfer, harbouring or
receipt of persons, by means of the threat or use of force or other
forms of coercion, of abduction, of fraud, of deception, of the abuse
of power or of a position of vulnerability, or of the giving or
receiving of payments or benefits to achieve the consent of a person
having control over another person, for the purpose of
exploitation.”2
Exploitation shall include, at a minimum, the exploitation of the
prostitution of others or other forms of sexual exploitation, forced
labor or services, slavery or practices similar to slavery, servitude
or the removal of organs. The ‗consent‘ of the victim of trafficking
shall be irrelevant where any of the means set forth above have
been used. ‗Consent‘ is irrelevant in case of children even if this
does not involve any of the means set forth above.3 It categorizes
the definition into three parts: The „action‟ element includes
“recruitment, transportation, transfer, harboring or receipt” of
persons. The „means‟ element includes “by means of the threat or
use of force or other forms of coercion, of abduction, of fraud, of
deception, of the abuse of power or of a position of vulnerability or
of the giving or receiving of payments or benefits to achieve the
consent of a person having control over another person”. Any of
the actions in combination with any of the means can be defined as
2
United Nation Office of Drugs and Crime (UNODC);
https://www.unodc.org/unodc/en/human-trafficking/what-is-human-
trafficking.html?ref=menuside
3
A Report on Trafficking Women and Children in India, National Human Right
Commission, 2003
human trafficking as long as the third constitutive element, namely

the „purpose‟ can also be established. The „purpose‟ element of
human trafficking is „exploitation‟.
India has also signed the International convention at New York in 1950,
which required a legislation to implement the same. There had been
number of local acts in India, but they were neither uniform nor
effective. Therefore, a new legislation was enacted in 1956 known as the
„Suppression of Immoral Traffic in Women and Girls Act, 1956.
The study would deal with the legislation in the later part of the paper.
A report released by the National Human Rights Commission
(NHRC) shows the rate of human trafficking has increased by 60.34 percent
in one-and-a-half years. The number of people trafficked or attempted for
trafficking increased to 29,000 in 2012/13, compared to 11,500 in 2011.
There are thousand examples of women trafficking in India and mostly the
reason is for sex trade to sell them in the market and make profit out of their
pain, they are forced to get into it and later it becomes a misery of their life
as they have to live with it. According to the 2013 National Crime Records
Bureau (NCRB) report, 24,749 children and women between the ages of 15
and 30 were kidnapped and sold across the country4. Recently there was an
incident in Thane, where a 24 year old girl was thrashed by three men and
her private parts were mutilated allegedly because she was brought for flesh
trade and she resisted becoming a part of the prostitution racket5. The three
were booked under Section 325 and Section 370 of IPC. There are millions
of girls in India who are brought or kidnapped from different places and
then forced into prostitution.
The reasons for increasing trafficking in India are like Social inequality,
regional gender preference, imbalance and corruption are the other leading
4
Human trafficking caters to demand for brides, Ashfaq Masoodi, Mint, September 10,
2014
5
Section 325 of Indian penal Code: voluntarily causing grievous hurt and Section 370
buying or disposing of any person as a slave
causes of human trafficking in India. Girls and women are not only
trafficked for prostitution but also bought and sold like commodity in many
regions of India where female ratio is less as compared to male due to
female infanticide. These are then forced to marry. Debt labour is not
known much but it is illegal in India and prevalent in our society. People
running out of cash generally sell their kids as debt labour in exchange for
cash. Both boys and girls are sold for this purpose and generally not paid for
years6.
PROSTITUTION- the most common reason for Human

Trafficking in India
Bride burning, rape, female infanticide, sati wife beating, prostitution,
kidnapping, abduction, etc... The crime against women seems never ending
yet it is increasing at an alarming rate in today‘s world especially in
developing countries like India is uncountable. The variety and dimensions
of these crimes show human ingenuity to commit crime, but for some
strange reasons they are reduced. The cold brutal statistics that piled up in
the morgue of government offices, welfare homes and court rooms
confirming our worst fears that the single largest minority of our country is
viciously battered into submission.
The women who are involved in the prostitution have to suffer mentally and
physically. Researchers note that sex trafficking plays a major role in the
spread of HIV. Human traffickers often use a Sudanese phrase ―use a slave
to catch slaves,‖ meaning traffickers send ―broken-in girls‖ to recruit
younger girls into the sex trade. Sex traffickers often train girls themselves,
raping them and teaching them sex acts. A human trafficker can earn 20
times what he or she paid for a girl. Provided the girl was not physically
brutalized to the point of ruining her beauty, the pimp could sell her again
6
Human Trafficking In India Must End, Gagandeep Kaur, 13 th,November,2013
for a greater price because he had trained her and broken her spirit, which
saves future buyers the hassle
Historical background of the Prostitution in India

Prostitution is not a new phenomenon, it existed since time
immemorial. In India, the Vedas, the earliest of the known Indian literature,
abound in references to prostitution as an organized and established
institution. In Indian mythology there are many references of high-class
prostitution in the form of celestial demigods acting as prostitutes.
It is referred to in Vedas, Puranas, Mahabharata and Ramayana. As a
matter of fact public women occupied an important place in the city life of
ancient India. The Puranas state that the very sight of prostitutes was
supposed to bring good luck. They had an honored place because of the
belief that cohabitation of men with such women had resulted in prostitutes.
They are referred to as Menaka, Rambha, Urvashi, and Thilothamma, who
were known for their charismatic beauty. The Apsaras and urvashis were
known as heavenly prostitutes. They were sent to the lord of Gods and other
Gods too, to entice the human being who were engaged in the practice of
austere penance for gaining the knowledge of supreme reality7. They are
described as perfect embodiments and unsurpassed beauty and feminine
charms. They are highly accomplished in music and dance. They entertained
divinities and their guests in the court of Lord Indira, the Lord of Hindu
Gods. They were also sent to test the real depth of ‗tapasya‘ (penance) and
devotion of great saints8.
Aryan rulers of India followed the system of celestial court and developed
the system of guest prostitution. They presented well-accomplished maidens
7
64th Report on Suppression of Immoral Traffic Act, 1956, Law Commission of India
8
Biswanath,1984.
in token of friendship of kings. They were also offered as ransom to the

victor to part with his most beloved prostitute.
Prostitutes were common during the reign of the Pandavas and Kauravas9.
They were an important part of the court and both dynasties possessed
harems of aristocracy in Brahmanic India. Having concubines is common
among the aristocracy. Kautilya‘s famous „Arthasasthra‟ contains rules for
prostitutes and their activities and gives an account of how prostitutes
should behave and how their lives are ordered. A code of conduct was
prescribed, for people seeking their favour and for them. They had certain
definite prerogatives, rights and duties. Vatsyayan, the noted Indian sage of
the Third century B.C. devoted a number of pages on prostitutes and their
amorous ways of life in his monumental treatise Kama sutra.
Prostitution during Mughal period:

Rules of conduct for popular and successful practice of their trade have been
prescribed. His classification of the prostitutes indicates that the common,
private, and the clandestine prostitutes of today had their prototypes in those
olden daysWhen faced with economic problem they had no choice but to
take recourse to the laziest of all the trades, the trade of sex.
Devdasi: Religious Prostitution

In the Devdasi system, what happens is that some people in India make a
pact with the God and if their wish is fulfilled by the God then they marry
their daughter to the God in return. From that very moment she belongs to
the God and is known as the ‗temple slave‘ or Devdasi. Technically she is
married to the Deity and so belongs to the priest to be used. She cleans the
temple and at night fulfils the desires of the priest. These women lead a life
9
Mahabharata, Veda Vyas.
with no dignity and respect. They are dehumanized. It is still prevalent in

certain parts of our country like parts of Maharasthra, Andhra Pradesh.
Prostitution during British period:

The place of women in India did not improve during the British regime.
Conditions continued to deteriorate and in the absence of state control and
regulation, prostitution thrived on a large commercial scale. Social
disabilities and economic hardships of women made them an easy victim to
the gangsters of this profession. This shows that prostitution existed
in India in some form or the other from time period to period but the evil
has continued to persist. Today prostitution exists in almost every big city of
the country. Women from third world countries are given allurement to
work in India, as waitresses, models, artists and cabaret performers which
subsequently lead to their exploitation by the flesh traders.
Prostitution in today‘s scenario:

There are varieties of reasons because of which any women or girl enters
into this vicious circle. The major reason for it is poverty. But it is only one
of the reasons for it. The helplessness of women forces them to sell their
bodies. Many girls from villages are trapped for the trade in the pretext of
love and elope from home only to find themselves sold in the city to pimps
who take money from the women as commission10. One of the reasons is
illiteracy11, as in India major population is still in rural areas and most of
them are illiterate. The other reasons as well cause of which prostitution still
exist in the society are Natural Disasters, Domestic Violence, lack of
employment, Lure of job or marriage with false promises etc. which makes
them easy prey for the traffickers.
10
Azad India Foundation.
11
Literacy Rate is mentioned in Finding and Analysis Fig. 3
Red Light areas in India:

“The red light district in Bombay generates at least $400 million per annum
in revenue, with 100000 prostitutes serving 365 days a year, at the average
rate of 6 customers per day at $2 each.”12
It is certainly mistaken by the people that Red Light Area is that place
where the government legalizes the prostitution. But it is certainly not so. If
there is particular area where prostitution is very much rampant and is
carried out in an organized way, where people (particularly men) come
every day, where meeting of prostitutes is a everyday matter. Red light area
was first recorded in United States around 1890. The term is derived from
the practice of placing a red light in the window to indicate the customers
the nature of business.
The biggest Red Light area in Asia is Kamathipura in Mumbai. It is also
one of the oldest red light areas in Mumbai. In these red light areas, the
authority is not able to control the illegal activities. In many of these areas,
only child and minor is involved and this vice is done in intimidating and
organized manner which are always punishable under the immoral traffic
(prevention)act, 1956. However, in reality the law authorities take no such
fruitful yet punitive action and their failure on this count may deem to be
amounting to abetment in the commission of the offence13.
Prostitution and Trafficking:

According to Alison Phinney (2001), the trafficking triangle refers to the
space created by the demand, supply and the impunity with which the
trafficking is done. According to her,
„sex trafficking is driven by a demand for women‟s and children‟s body in
the sex industry, fuelled by a supply of women, who are denied equal rights
12
Robert I. Friedman, ―India‘s Shame: Sexual Slavery and Political Corruption leading to
an AIDS catastrophe, The Nation, 8th April 1996
13
Immoral Traffic: Prostitution in India by V. Sithannan . B. Sc, M.L.
and opportunities for education and economic advancement and are

perpetuated by traffickers who are able to exploit human misfortune with
near impunity.”
While trafficking and prostitution are inextricably linked, they are not the
same. Prostitutes are women who voluntarily offer sexual services in
exchange for money. Trafficked victims, on the other hand, are bought and
sold for monetary profit, most often leading to forced prostitution. But
mostly the girls who are trafficked are sent into flesh trade. On the journey
of being trafficked to the brothels the trafficker rapes, tortures, starves,
humiliates and drugs the girl during transportation both for his pleasure and
to make her more submissive so she is less likely to attempt escape once
sold. They are treated and made to accept their conditions, as to live that
way for the rest of their life to live without dignity and to accept it as their
future. The women are illiterates and become immune to it as they do not
know any of their rights and compromise to it. The traffickers do it because
they have less risk and high profit in this business as there is hardly any
choice of the victim to escape and the victim has no choice but to live with
it.
India is home to approximately 20 million prostitutes14. While the exact
ratio of prostitutes to trafficked victims remains unknown, a CEDPA 15 Pride
report estimated that 80 per cent of all Indian women engaged in
prostitution are victims of trafficking. Every year, thousands of girls and
women are abducted, deceived, seduced, or sold for the purpose of
Commercial Sexual Exploitation (CSE). They are forced to service
hundreds if not thousands of men before being discarded. Trafficking in
women and children violates basic human rights to life, liberty and the
14
Human Rights Watch quoted in Times of India dated December 24, 2012,
http:/articles.timesofindia.indiatimes.com/2012-12-24/people/3598323_1_prostiution-
ayah-mumbai-s- kamathipura;
15
Founded in 1975, the Centre for Development and Population Activities (CEDPA) is
an internationally recognized non-profit organization that improves the lives of women and
girls in developing countries.
freedom to chart one's own life course, and instead subjects the victims to
cruelty, torture, dangerous and degrading work, and inhumane living
conditions.
Legal Framework with respect to Human Trafficking and Prostitution:
 The Indian Constitution prohibits all forms of trafficking under
Article 23(1)16. The Suppression of the Immoral Traffic Act, 195617
(amended to the Immoral Traffic Prevention Act) was in response to
the ratification of the International Convention on Suppression of
Immoral Traffic and Exploitation of Prostitution of Others in 1950
by India. Trafficking has been an area of concern since the early
20th century. It especially attracted attention during the 1980s. More
recently, there has been a widening of its focus. However, this was
not accompanied by an independent and sustained mass movement,
against trafficking in the country.
 Article 23 of the Constitution of India prohibits the trafficking of
human beings. Also the Right against exploitation is a fundamental
right which aims at putting an end to all forms of trafficking in
human beings at putting an end to all forms of trafficking in human
beings including prostitution;
 The Immoral Traffic (Prevention) Act, 1956
The Immoral Traffic (Prevention) Act, 1956, originally enacted as
the „Suppression of Immoral Traffic in Women and Girls Act,
1956, is the most important legislative instrument for the prevention
and combat of Legislation on the subject of trafficking in human
beings in India. However, till date, its key object has been to inhibit
traffic in women and girls with the intention to force them into
prostitution as means of earning their livelihood. The provisions of
16
Article 23 (1) Traffic in human beings and begar and other similar forms of forced labour
are prohibited and any contravention of this provision shall be an offence punishable in
accordance with law.
17
Amended in 1986
ITPA criminalize the persons who procure, traffic and profit from
the trade but fails to provide a clear definition of ‗trafficking‘ per se
in human beings. The ITPA provisions provide penalty for immoral
trafficking, punish traffickers, punish persons keeping a brothel18,
Punish persons who live off the earnings of a woman19, and provides
welfare measures focused towards rehabilitation of sex workers. The
central government under this act has powers to allow police officers
arrest without warrant in any premises where this offence is
suspected of being committed and rescue a person forced in this
profession. The purpose of the enactment was to inhibit or to abolish
commercial for the purpose of prostitution as an organized means of
living. A careful scrutiny of the act clearly reveals that it was aimed
at the suppression of commercialized vice.20 The act dealt with not
only a social but also a socio economic problem therefore the
provisions of the legislation is more preventive than punitive21.
 Section 37022 has been recently inserted by the Indian Parliament in
Criminal Amendment Act, 2013. The act‘s primary concerned with
18
Section 3, The Immoral Traffic (Prevention) Act, 1956.
19
Section 4, The Immoral Traffic (Prevention) Act, 1956.
20
Ratnamala, In re AIR1962 Madras 31(33)
21
Vishal Jeet v. Union o India (1990) 3 SCC 318
22
Whoever, for the purpose of exploitation, (a) recruits, (b) transports, (c) harbours, (d)
transfers, or (e) receives, a person or persons, by First.-— using threats, or Secondly.—
using force, or any other form of coercion, or Thirdly.— by abduction, or Fourthly.— by
practising fraud, or deception, or Fifthly.— by abuse of power, or Sixthly.— by
inducement, including the giving or receiving of payments or benefits, in order to achieve
the consent of any person having control over the person recruited, transported, harboured,
transferred or received, commits the offence of trafficking.
Explanation I—The expression "exploitation" shall include any act of physical exploitation
or any form of sexual exploitation, slavery or practices similar to slavery, servitude, or the
forced removal of organs.
Explanation 2.—The consent of the victim is immaterial in determination of the offence of
trafficking.
2. Whoever commits the offence of trafficking shall be punished with rigorous
imprisonment for a term which shall not be less than seven years, but which may
extend to ten years, and shall also be liable to fine.
targeting rape and sexual assault, the Bill incorporates a range of

other offences dealing with violence against women many of which
the Indian Penal Code, 1860 did not envisage. An offence of
trafficking shall be punished with rigorous imprisonment for a term
of at least seven years, but which may extend to ten years, and shall
also be liable to fine23. The new Section 370 criminalizes anyone
who recruits, transports, harbors, transfers or receives a person using
certain means,24for purposes of exploitation. Exploitation in turn is
not defined but is said to include any act of physical exploitation or
any form of sexual exploitation, slavery or practices similar to
slavery, servitude, or the forced removal of organs. This is further
enhanced and graded depending on whether the victim is an adult or
minor, if more than one person or minor is trafficked, if the
trafficker is a repeat offender and whether the trafficker is a police
officer or public servant. Recognizing that targeting the demand for
3. Where the offence involves the trafficking of more than one person, it shall be
punishable with rigorous imprisonment for a term which shall not be less than ten
years but which may extend to imprisonment for life, and shall also be liable to
fine.
4. Where the offence involves the trafficking of a minor, it shall be punishable with
rigorous imprisonment for a term which shall not be less than ten years, but which
may extend to imprisonment for life, and shall also be liable to fine.
5. Where the offence involves the trafficking of more than one minor, it shall be
punishable with rigorous imprisonment for a term which shall not be less than
fourteen years, but which may extend to imprisonment for life, and shall also be
liable to fine.
6. If a person is convicted of the offence of trafficking of minor on more than one
occasion, then such person shall be punished with imprisonment for life, which
shall mean imprisonment for the remainder of that person's natural life, and shall
also be liable to fine.
7. When a public servant or a police officer is involved in the trafficking of any
person then, such public servant or police officer shall be punished with
imprisonment for life, which shall mean imprisonment for the remainder of that
person's natural life, and shall also be liable to fine.
23
Section 370 (2), Criminal Amendment Act, 2013
24
It includes threats, force, coercion, fraud, deception, abduction, abuse of power, or
inducement
trafficked labor is often crucial in the fight against trafficking,

Section 370A criminalizes anyone who engages a trafficked minor
or adult for sexual exploitation. A little before the UN Protocol
came into effect, the US passed a domestic legislation in 2000 on
violence against women, which included trafficking as well and
ranks countries around the world on their anti-trafficking initiatives.
Countries performing poorly so as to fall in Tier Three of the annual
Trafficking in Persons (TIP) Report risk the withholding of non-
humanitarian, non-trade-related foreign assistance. Until 2009, the
TIP Report focused unduly on trafficking for sex work. In the initial
years of the TIP Reports, India performed favorably but was soon
demoted to the Tier Two Watch List between 2004 and 2010 before
returning to the Tier Two List in 2011.Yet the impulse to single out
prostitution in what is really a larger universe of severely exploited
and trafficked labor is remarkable. Thus an ordinance was passed in
the parliament in which Section 370 was inserted as new anti-
trafficking law.
CONCLUSION:
Each person has a right to live a dignified life and in a country like India
where the society plays a vital part and the principles of morality play an
important role in nurturing the society. In such a society, the prostitution is
unacceptable. The legislation which was passed in the year 1956 does not
completely legalize the prostitution. Rather, it has given a vague status to
the prostitutes in India. The recent era has witnessed a rise in the trafficking
of women and girls who are forced to enter into this prostitution. The
government must come up with a legislation that entirely bans the
prostitution and the illegal trafficking. Therefore, to bring these women and
girls come up to the status of living a decent life, government must phase-
out plan to combat poverty, rescue, rehabilitate, educate, and train them so
that even they can live their life with dignity and if given an opportunity to
come out of this torturous life, they would be able to make a place for
themselves and can sustain rather than being crushed by the society. The
recommendations above are given to improve their conditions in the society.
They should be implemented properly so that even a prostitute, if wants to
improve her conditions, we as a society accept her and give her an
opportunity to live the same way as we do.
NEXUS BETWEEN INTELLECTUAL PROPERTY RIGHTS

AND COMPETITION LAW
Neha Mishra*
Subhransu Mohapatra**
INTRODUCTION
Intellectual Property Rights (IPRs) and Competition Law are bound together
with the purpose of achieving economic development, innovation,
technological advancement and consumer welfare. Intellectual Property law
mainly subjects intellectual assets to the exclusive control of right owners.
Intellectual property protects individual interest and allows customer to
make choices between competing entrepreneurs, and the goods and services
they sell. IPR encourages new ideas and new innovations.
While on the other hand competition law seeks to avoid market barriers and
benefit consumers by encouraging competition among a multiplicity of
suppliers of goods, services and technologies. Unlike IPR competition law
protects the market. Competition law prevents monopoly in a market and
gives a level playing field.
HISTORY OF IPRs LAW AND POLICY

The term intellectual property was used as a specific legal term in mid-
nineteenth century. The intellectual property laws mainly related to the
rights generated from intellectual activity in the field of industry,
commercial, artistic, scientific, etc. IPRs have never been more
economically and politically important or controversial – than they are
today. Patents, copyrights, trademarks, industrial designs, integrated circuits
and geographical indications are frequently mentioned in discussions and
*2nd Year Student, Symbiosis Law School, Noida
*2nd Year Student, Symbiosis Law School, Noida
debates on such diverse topics as public health, food security, education,

trade, industrial policy, traditional knowledge, biodiversity, biotechnology,
the Internet, and the entertainment and media industries. To centralise the
law and tackle the problem more effectively the WIPO has enabled an
important trade agreement to come into being namely, TRIPS.
The main legal instruments for protecting IPRs are patents, copyright (and
neighboring rights), industrial designs, geographical indications (GIs), trade
secrets and trademarks.
There is an increasing importance of intellectual property rights in present
time. The rapid development of technology has led to the awareness of the
importance of the IPR.
HISTORY OF COMPETITION LAW AND POLICY

The simple definition of the competition policy can be all those government
measures that directly affect the behaviour of an organisation and structure
of industry. Mainly it can be said that the completion policy has two
elements. The first: there should be a policy that discourage anti-
competition activities and promote competition in local and national level.
Secondly: there should be legislations, regulations and judicial precedents
against anti-competition activities. These elements altogether can be said as
competition law.
OBJECTIVES OF IPRs AND COMPETITION LAW

IP protects the interest of an individual while competition law protects the
markets. It can be said that the objective of the Competition law is to
promote efficiency and maximise welfare, while IPR give license to its
owner to exploit the innovation and exclude other from doing so. The idea
behind giving the license to the owner under IPR is that, the society has to
pay a price to use the innovation of the owner, and the license is kind of the
price that society pays. But if we consider Competition law, than its main
motive is only to promote competition which gives better choices to the

society at large, i.e. the main motive of the competition law is to promote
healthy competition and secure consumers interest.1But with the changing
time, there are also changes in the objective of the IP; hence with the change
in time the idea of what should be rewarded has also changed.
CONFLICT BETWEEN IPRs AND COMPETITION LAW

The term intellectual property refers to the fruits or products of human
creativity that includes literature, slogans, songs or new inventions. Hence
the property that is the result of thought is called intellectual property.
Intellectual Property Rights are intangible rights, though they are in respect
of tangible objects. IPR are legally recognised in a widening range of
objects.
The IP is divided into two broad categories: one is commercial based and
the second one is product based. Trademarks, trade names, brands,
geographical indication fall under commercial based IP and patents,
copyright and designs comes under product based IP2.
The main objective of the competition policy is to promote healthy
competition and consumer protection. Hence the competition act 3 that came
into force in 2002 prohibits the exercise of anti-competitive agreements. The
act also empowers the competition commission of India to penalize any IPR
holder who try to misuse there dominant position. The provisions in the act
also empower the competition commission to penalize any party who enter
into anti-competitive agreement.
The Intellectual Property Rights (IPRs) provide exclusive rights to the
holders to perform a productive or commercial activity4, Hence in a way
1
See. http://www.competitionlawindia.com/scope-of-competition-law
2
V J Taraporrevala, Law of Intellectual Property, second edition (2013)
3
The Competition Act 2002 as amended by The Competition (Amendment) Act, 2007
4
Competition Comission of India, Advocacy Booklet, IPR (under The Competition Act
2002)
Intellectual property rights lessens competition. Hence the major concern of

the competition law and policy in the view of IPRs is the power to grant
such rights. As per a research5 ―the market power can harm consumers by
setting prices higher than those needed to secure cost effective production.
INTERFACE BETWEEN IPR AND COMPETITION LAW

The foundation of Indian Competition Law can be traced back to Articles 38
and 39 of the Constitution which lay down the duty of the State to promote
the welfare of the people by securing and protecting a social order in which
social, political and economic justice is prevalent and its further duty to
distribute the ownership and control of material resources of the community
in a way so as to best sub-serve the common good, in addition to ensuring
that the economic system does not result in the concentration of wealth. It is
from these duties that the MRTP Act, 1969, came about.6Following the
Singapore Ministerial Declaration of the WTO in 1996, the Expert Group, in
its report submitted to the Ministry of Commerce in January 1999
recommended that a fresh competition law be drawn up. In October 1999,
the government appointed a High Level Committee on Competition Policy
and Competition Law to draft the new competition law, which was
submitted in November 20007. Hence the Competition Act 2002 was formed
to safeguard public welfare and to restrict anti-competition trade practice.
Given the strong link between the two, IPRs and competition laws have a
substantial interface in their regulation of various issues of the business
world.
5
Sachin Kumar Bhimrajka, Study on relationship of competition policy and law and
Intellectual property rights, ( August 18, 2010)
6
The Institute of Chartered Accountants of India, Competition Laws and Policies (2004), at
117-118
7
Id, at 128-129.
IPR STANDARDS AS COMPETITION REGULATION

IPRs policy acts as an institutional regulatory framework for the proper
operation of markets for intangible subject matter, and is therefore exempt
from antitrust control. Competition laws of most countries, therefore,
expressly or implicitly exempt from their application the exclusive rights
inherent in IP protection granted by the state.
For instance, Section 1 of Article 81 (ex Article 85) of the Treaty of Rome
prohibits all agreements which may affect trade between Member States and
which have as their object or effect the prevention, restriction or distortion
of competition within the common market. The Monopolies and Restrictive
Trade Practices (MRTP) Act of India exempted from its purview of
application .any monopolistic or restrictive trade practice necessary to
safeguard the rights of patentees under the Indian patents act with regard to
certain infringements and conditions that may be laid down in the
licence(s)8.
REGULATION OF IPR THROUGH COMPETITION LAW

Competition law, thus, while having no impact on the very existence of
IPRs, operates to contain the exercise of the property rights within the
proper bounds and limits which are inherent in the exclusivity conferred by
the ownership of intellectual assets. As a piece of individual property,
‗‗IPRs are fully subject to general antitrust principles because what is
conferred upon its owner is precisely that autonomy of decision in
competition and freedom of contracting according to individual preferences
that results from any private property, no matter tangible or intangible, and
that is the object of and connecting factor for restraints of competition‘‘ 9.
Hence the competition law does not interfere with IPR unless, the owner of
8
Section 15 (a & b) MRTP Act 1969
9
Supra note 1, p.374
the IPR tries to influence the market with its dominance and affect the
competition.
REGULATION OF IPRs RELATED COMPETITION ISSUES
 IPRS AND ABUSE OF A DOMINANT POSITION

In the free society, government takes out things effectively by keeping the
peace, protecting private property and enforcing contracts. Abuse of
dominant position is known to be the extreme case in capitalism because the
system lack in its functional power and working when there is only or
almost one provider of a good or service. This makes system paralyzed as
there is no initiative to improve and to meet the demands of the consumers.
Dominance comes in power because of two factors, which are, successful
organic growth (internal) of a business and through mergers and
acquisitions (also called as the integration of the firms)10.
 Horizontal Integration: - This kind of integration takes place
when two firms join at the same stage of production in one industry.
For example: a leading bank successfully takes-over another bank
or a manufacturing company may decide to merge. In this, the
integration takes place horizontally only.
 Vertical Integration: - this kind of integration is when a firm
integrates or merges at different stages of production cording to the
necessity like by buying its supplier or controlling the main retail
outlets. The vertical integration occurs in two manners, that are,
forwardly and backwardly.
10
William Jackson, How does a company form a Monopoly, (July 27, 2014, 12:00 AM)
http://www.ehow.com/how-does_4580212_company-form-monopoly.html
CHART 1 shows the diagrammatic representation of the number and

Percentage of Manufacturing Industries in which largest four
companies accounted for at least 50 percent of Shipment value in their
Industries, from 1947-2007.11
The above mentioned data gives the graphical representation about the state
of monopoly and competition in the today‘s economic era and the prevalent
trends in the mid-twentieth century. Chart1 describes that both the number
and percentage of Manufacturing Industries that have a four-firm
concentration ratio of 50 percent or more have risen dramatically since the
1980s. It is depicted that the majority of industries in the Manufacturing
sector of the economy are tight monopolistic or quasi monopolistic markets
as characterized by a substantial degree of monopoly.
11
―Shipments Share of 4, 8, 20, & 50 Largest Companies in each SIC: 1992–1947,‖ Census
of Manufactures; and ―Economic Census,‖ 1997, 2002, and 2007, American Fact Finder
(U.S. Census Bureau, 2011),John Bellamy Foster, Robert W. Machesney and R. Jamal
Janna, Monopolies and competition in twenty first century: Captialism (July 28 th, 2014,
8;00 PM) http://monthlyreview.org/2011/04/01/monopoly-and-competition-in-twenty-first-
century-capitalism/
IPRs, by their very nature, create a form of monopoly or, in other words, a
degree of economic exclusivity. Even in case it does confer market power
that dominant position in the market does not by itself constitute an
infringement of competition law nor does it impose on the IPR holders the
obligation to license that property to others. Besides, competition authorities
are normally concerned with the abuse of the dominant position, whatever
the source of such dominance, rather than with any abuse of IPRs. Much
also depends on the facts of each case involved.
 REFUSAL TO DEAL
A widely accepted premise of IP laws is that IP holders are under no
obligation to license subject matters protected to others. This principle is
generally held to be true even when a firm is in possession of a monopolistic
position in a market as a result of its ownership of IP. An early non-antitrust
decision by the US Supreme Court stated that the ability to exclude
competitors from the use of a new patent may be said to have been of the
very essence of the rights conferred by the patent, as it is the privilege of
any owner of property to use or not to use without question of motive12.On
the other hand, from the perspective of IPR/competition law interface, there
may pose the question of whether such duty exists. Courts in the EU and the
US have at times held that refusals to license a patent violate competition
law. However both the jurisdiction, considered to be among the most
advanced jurisdiction as per IP and competition law has not provided clear
instructions as to whether a refusal to deal is anticompetitive where it
involves IP. Slightly different was the case of Brazil, where Article 21 of the
Antitrust Law enlists the non-exploitation or the inadequate use of IPRs and
technology of a company as a strong indication that the free competition
12
Continental Paper Bag Co. v. Eastern Paper Bag Co., 210 U.S. 405, 429 (1908)
rules have been violated13. While the non-fraudulent acquisition of patent

rights through government grant does not violate the antitrust laws nor is it
inherently illegal for a single party to accumulate patents and absent fraud
or bad faith, antitrust jurisdiction does hold that when a party aggressively
engages in activities that are self centered and are done by enforcement of
IPRs to influence the essential inputs in a particular market for the purpose
of destroying competition in that market, it can be considered as anti-
competition and antitrust liability. Thus, a duty to license this portfolio of
rights might be imposed as a remedy to cure the violation.
 COMPULSORY LICENSING
A compulsory license is an involuntary contract between a willing buyer
and an unwilling seller imposed and enforced by the state. A survey of
international IP law reveals that the three most prevalent compulsory
licensing provisions are applicable where a dependent patent is being
blocked; where a patent is not being worked; or where an invention relates
to food or medicine. Moreover it can be implemented as a remedy in
antitrust or misuse situations, where the invention is essential to nation‘s
security or where the entity acquiring the compulsory license is the
sovereign14. In these cases, the public interest in broader access to the
patented invention is considered more important than the private interest of
the right holder to fully exploit his exclusive rights. The designated third
party should generally compensate the patent holder through payment of
remuneration. The right to act against non-licensed parties by the patent
holder is not denied by compulsory licenses. Compulsory licensing can be
granted on the grounds of the existence of: (i) a refusal to license and (ii)
13
See supra note 22
14
Arnold G.J (1993), International Compulsory Licensing: The Rationales and The Reality,
PTC
Research Foundation of the Franklin Pierce Law Center, IDEA: The Journal of Law
and Technology
anti-competitive exercises of IPRs by patent holders, but with regard to the

IPR/competition interface Refusal to deal as a ground for granting a
compulsory license has been provided in many national laws, such as the
patent laws of Israel, Argentina and China. As regards anti-competitive
practices, the Competition Act of Canada, for example, gives the Federal
Court power to expunge trademarks, to license patents (including setting all
terms and conditions), to void existing licenses and generally to abridge or
nullify normal patent or trademark rights where the trademarks or patents
have been used to injure trade or commerce unduly or to prevent or lessen
competition unduly15 Intergraph Corp. vs. Intel Corp., 253 F.3d 695
(Fed. Cir. 2001)16
ECONOMIC JUSTIFICATION OF IPRs AND COMPETITION

Intellectual Property Rights play an important role in economic life in this
age of technological innovation. IPRs grants monopoly to the IPR holder as
shown above but it is no way absolute and it is limited in time; it is also
subject to competition with similar products, similar trademarks, etc.
Intellectual property rights do not give their owners an automatic profit:
they are directly oriented towards demand. The competitive structure of the
market concerned determines the reward given for the innovative activity.
The owner will make a profit only when the market accepts his innovation.
Intellectual property rights confer exclusive rights, but they hardly ever
confer a real monopoly, in the sense that the monopolist can act arbitrary
way without being influenced by his or her competitors.. If it is known that,
the one will have a property right in the results of one‘s investment will
stimulate individuals and enterprises to invest in the research and
development. It is assumed that the creator and inventor will have been
motivated by the desire to maximize profits-either by exploiting the
15
Section 32 of The Canadian Competition Act, RSC 1985, c C-34, as amended
16
Encaoua & Hollander, Competition policy and Innovation, 2002
invention or creation him or herself, or by having it exploited by a third

party-so the creator inventor is granted the rights17.
CONCLUSION
This working paper is a first step in attempts to enhance understanding of

the interface between competition law and IPRs protection rules as well as
some relevant issues on the subject matter. IP and Competition laws share
the same economic rationale. They are both crucial for the establishment of
competitive and innovative market conditions. The common objective of
both policies is to promote innovation which would eventually lead to the
economic development of a country however this should not be to the
detriment of the common public. The competition authorities need to ensure
the co-existence of competition policy and IP laws since a balance between
both laws would result in an economic as well as consumer welfare. It
should be kept in mind that the only conflict arising between IPRs and
competition laws as stated in the above discussions arises due to the
monopolistic effect of the IPRs. We should not forget that IPRs provide
short term monopolies, which implies that it provides incentives for the
innovator and also allows them to apply its industrial application. After the
allotted time span, the monopoly on the hand of innovator expires and it
comes to public domain. The intellectual property laws provide motivation
for innovation and its dissemination and commercialization by establishing
enforceable property rights for the creators of new and useful products,
more efficient processes, and original works of expression. In the absence of
intellectual property rights, imitators could more rapidly exploit the efforts
of innovators and investors without compensation. It can be concluded that
both IPRs and Competition law goes hand in hand. As certain privileges are
17
S. Holyyoak & Torremans, Intellectual Property Law, 2008 (Oxford University Press) at
231.
being given under the IPRs it is restricted by the enforcement of

Competition laws. As rightly said in Indian laws, nothing (right) is absolute:
every right comes with restriction, limitations and liabilities.
LIBERTY OF THE PRESS vis-à-vis PRE-CENSORSHIP OF

PUBLICATION
Shweta Mallya*
Rahul Dev**
Introduction
Liberty of the press envisages the freedom of speech and expression

guaranteed to every citizen as per Article 19(1)(a) of the Constitution of
India and forms the foundation for a democratic set up. The rights
enumerated in Article 19(i) are those elementary rights which are
recognised as the natural rights inherent in the status of a citizen.1
Therefore, these rights safeguard certain unrepressed freedom to the press
with regard to the publication of information in the form of print media or
electronic media. However, none of these rights are absolute or
uncontrolled, as they are liable to curtailment by laws made or to be made
by the State. Freedom of speech and expression has a well-recognised
connotation which means the liberty to express one‘s views, opinions and
beliefs. It does not mean the right to say whatever, whenever and wherever
one likes. Freedom of the press is said to form the bulwark of a healthy,
progressive and democratic society. It leads to the creation of new ideas and
knowledge, finding of truth, building tolerance and receptivity and is
essential for self-rule.2
Historical Perspective of Liberty of the Press
The Universal Declaration of Human Rights states that every man has
the right to freedom of expression which includes the freedom to hold
*3rd year, BBA LLB (Hons.), School of Law, Christ University.

*3rd year, BBA LLB (Hons.), School of Law, Christ University.
1
State of W.B. v. Subodh Gopal Bose, AIR 1954 SC 92,95: 1954 SCR 587.
2
A. Meiklejohn, Political Freedom (1965).
opinions and impart information and ideas through any media without
interference. Lord Mansfield, as early as 1784, had defined the ―liberty of
the press‖ as consisting in ―printing without previous license, subject to the
consequences of law‖3 and it is in this sense that that the freedom has
existed in England since the 17th century. Earlier there was no statutory
provision protecting the rights of the press, before India attained
independence. However, after the enactment of the constitution of India, the
liberty of the press is protected under Article 19(1)(a) as it is implied under
the freedom of speech and expression guaranteed to every citizen of India.
Unlike the US Constitution, the fundamental right enshrined in Article
19(1)(a) does not expressly mention the liberty of the press, i.e., the freedom
to print and publish what one pleases without prior permission. However, it
is settled law that the right to freedom of speech and expression in
Article(1)(a) includes the liberty of press.4
Freedom of the Press within the ambit of the Indian Constitution
Article 19(1)(a) secures to every citizen the right to freedom of speech

and expression. A democratic government attaches great importance to this
freedom because without this freedom, appeal to reason, which is the basis
of democracy, cannot be secured. In Romesh Thappar v. State of Madras5,
Patanjali Sastri CJ observed ―Freedom of speech and of the press lay at the
foundation of all democratic organisations, for without free political
discussion no public education, so essential for the proper functioning of the
process of popular Government is possible. A freedom of such amplitude
might involve risks of abuse.‖
Although the provision for the right to freedom of speech and expression
in our Constitution and the one contained United States‘ Constitution appear
3
R v. Dean of the State Asaph, (1784) 3 T.R. 428.
4
Express Newspapers (P) Ltd. v. Union of India, A.I.R. 1958 S.C. 578.
5
A.I.R. 1950 S.C. 124
to have been legislated on similar lines, there exist stark differences between
the two constitutions. The right envisaged in the United States‘ Constitution
is an absolute right, in the sense that the State is permitted to impose very
minimal restrictions on the right as a consequence of the absolute
prohibition contained in its First Amendment. Under the Indian
Constitutional scheme however, Article 19(2) provides for several grounds
on which restrictions may be imposed on the exercise of the right. A law
made in respect of matters referred under Article 19(2) must prima facie be
presumed to be constitutionally valid and due weight must be given to the
legislative judgment on the question of reasonableness, though that
judgment is subject to judicial review.6 This distinction is important in
determining the extent of valid State intervention in the exercise e of the
right in India.
The freedom of speech and expression implies the liberty of the press
stands at no higher footing than the freedom of speech and expression of a
citizen and no privilege is attacghed to the press as such distinct from the
ordinary citizen. Therefore, in Express Newspapers (P) Ltd. v. Union of
India7, it was held that the press is also subject to the general law of the land
and is liable to taxation. But whether a tax violates freedom of speech and
expression can be judicially examined.8
Liberty of the press embraces the freedom of circulation as the freedom

of speech and expression includes the freedom of propagation of ideas and
is ensured by the freedom of circulation. In Romesh Thappar v. State of
Mysore9, the notification banning the entry, circulation, sale or distribution
in the State of Madras and Bombay, in the newspaper titled ―Crossroads‖
6
SEERVAI H. M., CONSTITUTIONAL LAW OF INDIA 710, (Universal Law Publishing Co. Pvt.
Ltd., Vol. 1, 4th ed., 2014).
7
A.I.R. 1958 S.C. 578.
8
Indian Express Newspapers v. Union of India, (1985) 1 S.C.C. 641.
9
A.I.R. 1950 S.C. 124.
published at Bombay, was held invalid, because, without the liberty of

circulation, the publication would be of little value. The liberty of the press
includes the freedom of employment or non-employment of the necessary
means of exercising this right, such as freedom of employment in the
editorial force of a newspaper and also freedom from a measure intended or
calculated to undermine the independence of the press by driving it to seek
government aid.10
In Bennett Coleman & Co. v. Union of India11, it was held that the
freedom of speech and expression is not restricted to the volume of
circulation but also in the volume of news and views. The press has the right
of free propagation and free circulation without any previous restraint. In
this case, the Import Policy for Newsprint along with the Newsprint Control
Order, 1962 issued under Section 3 of the Essential Commodities Act, 1955,
which provided for a bar on starting newspapers or editions by common
ownership unit, bar on the interchangeability within common ownership
unit, a rigid limitation of ten pages and an allowance of 20 per cent page
increase only to newspapers having below ten pages, was challenged. The
court held this to be violative of Article 19(1)(a) and thereby struck it down.
It was held that the provisions of this Act were directly in conflict with the
freedom of press which did not fall under any of the exceptions mentioned
in Article 19(2). If a law were to single out the press for laying down
prohibitive burdens on it then it would restrict the circulation, penalise its
freedom of choice as to personnel, and compel the press to seek
Government aid then it would violate Article 19(1)(a).
The liberty of the press is deemed to be infringed by an action of the

government which would adversely affect the circulation of the paper, or by
a direct ban on the circulation of a publication. In Sakal Papers (P) Ltd. v.
10
Express Newspapers (P) Ltd. v. Union of India, A.I.R. 1958 S.C. 578.
11
A.I.R. 1973 S.C. 106.
Union of India, the Daily Newspapers Order, 1960, which fixed the number
of pages and size which a newspaper could publish at a price was
challenged on the ground that it infringed the liberty of the press implicit in
Article 19(1)(a). The adoption of the order would signify the reduction in
the existing number of pages or raising the price and therefore affects the
liberty of the press. Reduction in the volume or circulation of the paper is a
direct violation of the liberty of the press. The State justified the law as a
reasonable restriction on the business activity of a newspaper in the interests
of the general public. The court, however, upheld the plea of the petitioners
that the order affected the circulation and so restrained the dissemination of
news and views which a newspaper had the freedom to do. The order was
therefore held to be inoperative and was struck down. It was further held
that ―The right of freedom of speech cannot be taken away with the object
of placing restrictions on the business activities of a citizen.‖
Reasonable Restrictions on the Liberty of the Press
Liberty of the press is restricted as the freedom of speech and expression

does not confer an absolute right to speak or publish without responsibility.
The press does not have an unrestricted license that gives immunity for
every possible use of language and does not prevent punishments for those
who abuse this freedom. The press may therefore be made accountable
subject to certain reasonable restrictions. Article 19(2) of the Constitution of
India provides for the imposition of reasonable restrictions of the exercise of
the right to freedom of speech and expression by citizens. The clause
empowers the State to impose by law, reasonable restrictions in the interests
of the sovereignty and integrity of India, the security of the State, friendly
relations with foreign States, public order, decency or morality or in relation
to contempt of court, defamation or incitement of an offence.12 The term
12
The Constitution of India, 1950, § 19 (2).
―restrictions‖ in this clause which was originally unqualified, was amended

so as to be qualified by the term ―reasonable‖ by the Constitution (1st
Amendment) Act 1951. This qualification is of great significance since it
imposes a limitation on the State‘s power and widens the scope of judicial
review of laws restraining freedoms under Article 19. The determination by
the legislature of what constitutes a reasonable restriction is not final or
conclusive. It is subject to the supervision of courts.13
The Constitution does not define the expression ―reasonable

restrictions‖. It is imperative to clarify the meaning of the term
―restrictions‖. A question that arises for consideration is whether the
connotation of the term is wide enough to cover a ―prohibition‖ of the right.
The question was answered in the affirmative in Narendra Kumar v. Union
of India14 Although in A. K. Gopalan v. State of Madras15, it was settled by
the Supreme Court that ―restriction‖ did not mean ―deprivation‖, Das Gupta
J. reviewing the matter, held that the construction laid down in Gopalan‟s
case did not extend to other Articles. He added that prohibition was to be
treated only as a kind of restriction and any other view would defeat the
intention of the Constitution.
Restrictions may be imposed on different rights guaranteed under Article

19(1) on a common ground. For instance, restrictions may be imposed ―in
the interest of public order‖ on the rights contained in Article 19(1) (a), (b)
and (c). However the reasonableness of the restriction must be adjudicated
upon, not with reference to the ground on which it is imposed, but with
reference to the fundamental right which is restricted. A decision that deals
with the validity of restriction imposed on one of the rights conferred by
13
Anwar v. State of J&K, (1971) 3 S.C.C. 104.
14
(1960) 2 S.C.R. 375.
15
(1950) S.C.R. 88.
Article 19(1) cannot have much value as a precedent in determining the

reasonableness of restrictions imposed on another right.16
Consequently, although the constitutional criterion for adjudging the

validity of a restriction might be the same, namely, reasonableness, the
restrictions on each right must be considered separately. The factors which
should enter the judicial verdict are the underlying purpose of the
restrictions imposed, the proportion of imposition, the prevailing conditions
at the time, and the duration of the restrictions.17
The first ground restricting the liberty of the press i.e., sovereignty and
integrity of India was added by the Constitution (16th Amendment) Act,
1963 as a safeguard against the freedom of speech and expression being
used to assail the territorial integrity and sovereignty of the Union. It is
therefore reasonable for the Parliament to restrict the right of free speech if
such speeches are concerned with secession of any part of the territory of
India from the Union. The next restriction imposed on the liberty of the
press is with regard to the security of the state. All publications threatening
the security of the state with direct consequences such as crimes of violence
intended to overthrow the government, waging of war, etc. In State of Bihar
v. Shailabala Devi18, the Supreme Court held that the law which made penal
words or visible representations which incited or encouraged any offence of
murder or any cognizable offence involving violence, falls within the scope
of the restrictions imposed by Article 19(2).
The liberty of the press is also restricted in cases where certain print
media or electronic media inhibits the maintenance of friendly relations with
foreign nations. This ground was added by the Constitution (1st
16
Madras v. V. G. Row, (1952) S.C.R. 597.
17
Bishambar Dayal Chandra Mohan v. State of U.P., (1982) 1 S.C.C. 39; Ram Narayan
Agarwal v. State of U.P. (1983) 4 S.C.C. 276; Indian Express Newspapers v. Union of
India, (1985) 1 S.C.C. 641
18
A.I.R. 1952 S.C. 329.
Amendment) Act 1951 which permitted the State to impose reasonable

restrictions on the freedom of speech in this regard as unrestricted
propaganda against a friendly foreign State may jeopardise the maintenance
of good relations between India and that State. The preservation of public
order is also a ground for restricting the liberty of the press, however the
existence proximate nexus between the speech or publication and public
order is necessary. The Supreme Court took a stance in this regard, in
Virendra v. State of Punjab19, where a provision relating to ban on
publication of news was upheld in the time of tension in order to preserve
public order which was threatened by the ―Save Hindi Agitation‖ as being a
reasonable restriction of the liberty of the press.
Decency is another ground on which the liberty of the press may be

reasonable restricted if the contents of the print or electronic media is
obscene or immoral. The Supreme Court was called upon to lay down a test
to determine obscenity in Ranjit D. Udeshi v. State of Maharashtra20. The
court agreed with the Hicklin Test which states: ―Whether the tendency of
the matter charged is obscene is to deprave and corrupt those whose minds
are open to such immoral influences and into whose hands a publication of
this sort may fall.‖21 However, an exception can be made to this rule only if
some social purpose or profit is served by the obscene object.
Contempt of court, defamation and incitement of an offence are other

grounds on which the liberty of the press may be reasonable restrained.
Although the right to expression of free opinions is essential to a free
society, the power to punish for contempt of court under Articles 129 and
215 imposes restrictions on the liberty of the press in this regard.
Defamatory matter if in writing, printing or some other permanent medium
19
A.I.R. 1957 S.C. 896.
20
Chandrakant Kalyandas Kakodkar v. State of Maharashra, (1969) 2 S.C.C. 687.
21
R v. Hicklin, (1868) 3 Q.B. 360, 371.
is a libel and thereby violates the rights of others. Therefore, the liberty of
the press does not entitle one to abrogate the rights of others and is restricted
in this regard. Incitement to an offence was added as a ground restricting the
freedom of speech and expression in the year 1951 as the incitement to
crimes such as murder endangers the security of the State.
Pre-censorship of Free Speech and Expression
An important question that arises for consideration in the exercise of the

right to free speech and expression is, whether pre-censorship of the content
of certain media is a reasonable restriction of the right. The State has pre-
censored mass communication through electronic means such as a
cinematograph film in the past. The reasonableness of the restriction of such
pre-censorship was called into question in K. A. Abbas v. Union of India22.
In that case, a film ―A Tale of Four Cities‖ was produced by the petitioner.
The film contained scenes from the red light district in Bombay. The Board
of Film Censors refused to grant the film a ―U‖ certification. The petitioner
challenged this decision of the Board. However the central government
decided to grant a ―U‖ certification to the film, provided certain cuts were
made to the film. The petition was therefore not to survive. The petitioner
was permitted to make an amendment to the petition. He raised the question
of validity of pre-censorship in general so that parties interested in the film
have guidance on an important constitutional question.
It was contended by the petitioner that pre-censorship cannot be tolerated

under the freedom of speech and expression. However the petitioner‘s own
support of censorship in his article titled ―Creative Expression‖ did not aid
his cause. The Court affirmed the validity of pre-censorship as a reasonable
restriction imposed on the right to free speech and expression. It held that
pre-censorship was only an aspect of censorship, and censorship of
22
(1971) 2 S.C.R 574.
cinematograph films was universal. In holding so, it took cognizance of the

fact that motion pictures had an instant appeal to both, sight and hearing.
Owing to the aforementioned observation, the classification of films into
―A‖ (for adults only) and ―U‖ (for universal exhibition) provided for by the
Cinematograph Act 1952, was held to be a reasonable.
On examining the grounds for censorship, the Court was of the opinion
that one ground for the imposition of a reasonable restriction may include
making factually false claims. The idea of discovery of the truth being the
goal of free speech is implied from the above ground. This argument
however may easily be assailed since different views are allowed to be
expressed not because the views are correct or valid but because, all citizens
have the freedom to do so under the constitutional scheme of our nation.23
The aforementioned view was rightly not made the basis of the decision.
The basis was the high regard given to moral values by the Court. It said
that morality should not be sacrificed in the guise of social change or
cultural assimilation.
The basis of the decision may be questioned on the ground that morality
is an abstract indefinable concept which is varied and subjective. The
question however does not proceed far enough to altogether assail the
findings of the Supreme Court. The reason being, the Court pointed out that
motion pictures tend have a far reaching influence on the actions of people.
Thus if the exercise of the right through this means is not restricted motion
pictures may be used to change socially accepted values. The view taken by
the Supreme Court in Ranjit D. Udeshi v. State of Maharashtra24, that
obscenity and immoral behavior may be grounds for imposing reasonable
restrictions on the freedom of speech, was reaffirmed.
23
Ibid.
24
(1965) 1 S.C.R. 65.
The importance of upholding the liberty of the press in a democratic set

up is not to be undermined. This was emphasized by the Supreme Court in
the case of S. Rangarajan v. Jagjivan Ram.25 After K. A. Abbas, it was
settled that the Board of Film Censors had the power to refuse to grant a
certificate, grant a ―U‖ certificate, an ―A‖ certificate or an outright refusal to
say that a certificate would be granted if certain alterations or omissions
were made. Thus the powers of the Board were wide. Rangarajan the
producer of a film, ―Ore Oru Gramathile‖, applied to the Board for
certification to exhibit the film. Since the Examination Committee
unanimously refused to grant the film a certificate, he applied to the first
Revising Committee, which reversed the decision. The chairman of the
Board, dissatisfied with the decision referred the film to the second Revising
Committee which granted a ―U‖ certification to the film.
The decision of the Board was challenged before the High Court
which was dismissed by a single Judge. This dismissal having been
overturned by a Division Bench of the High Court, the respondent moved
the Supreme Court on appeal. The High Court was of the opinion that public
reaction to the film which sought to change the system of reservation in
Tamil Nadu was bound to be volatile and therefore a refusal of the
certification would be reasonable. The Apex Court rightly discredited this
reasoning laid down by the Madras High Court and held that the freedom of
expression is the rule and everybody has the fundamental right to express
his own opinion on any issue of general concern.26
There is no doubt that the right freedom of speech and expression

cannot be unrestricted. It would be necessary to impose restrictions if
expression endangered the interests of the community. However it is
necessary to balance the freedom and the restrictions imposed. In the
25
(1989) 2 S.C.C. 574.
26
Ibid.
aforementioned case, the producer was only expressing his views on the
reservation policy followed by the State, only through a motion picture. It
would be absurd to restrict a person from expressing such views on the
ground that there exists a possibility of it causing public unrest. It is the duty
of the State to protect the freedoms guaranteed to the citizens by the
Constitution. The State cannot at any rate shy away from its duties towards
its citizenry.
Conclusion
One of the most important pillars of a democratic structure is free

speech and expression. However the unrestricted exercise of this freedom
may at times interfere with the peaceful existence of the society. The
justification of the State in imposing restrictions on this freedom is based on
the need to balance individual rights and societal interests. It must be
remembered that freedom of expression is the rule and restrictions are only
exceptions which may be imposed on in rare circumstances. These
circumstances must pose an inherent and immediate danger to the society
and only then would the constriction of the right by the State be a valid one.
The liberty of the press forms an integral part of the freedom of

speech and expression declared by Article 19(1)(a) of the Indian
Constitution. The freedom of the press is not confined to newspapers and
periodicals, but also includes pamphlets, leaflets, circulars and every sort of
publication which affords a vehicle of information and opinion. It needs no
emphasis that a free press, which is neither directed by the executive nor
subjected to censorship, is a vital element in a free State. It may be therefore
inferred that a free, regularly published, political press is essential in a
modern democracy.
CONSUMER PROTECTION VIS-À-VIS SERVICE

AND OTHER SECTORS
Ayush Jaiswal*
V. Aneesha Varahagiri**
INTRODUCTION
Consumer is a person who buys any goods for a consideration which has
been paid or promised or partly paid and partly promised, or under any
system of deferred payment and includes any user of such goods other than
the person who buys such goods for consideration paid or promised or
partly paid or partly promised, or under any system of deferred payment
when such use is made with the approval of such person, but does not
include a person who obtains such goods for resale or for any commercial
purpose, or hires or avails of any services for a consideration which has
been paid or promised or partly paid and partly promised, or under any
system of deferred payment and includes any beneficiary of such services
other than the person who ‗hires or avails of the services for consideration
paid or promised, or partly paid and partly promised, or under any system of
deferred payment, when such services are availed of with the approval of
the first mentioned person but does not include a person who avails of such
services for any commercial purposes.1
The ambit of definition of consumer, given by the Consumer Protection Act
is gigantic; In other words, ‗generalised‘; The reason being, providing and
ensuring legal protection to maximum number of consumers. Studies show
that the consumer plays the role of a game changer in an economy. It is the
consumer, who can make the economy grow rapidly and vice-versa. India is
*3rd Year Student, Damodaram Sanjivayya National Law University, Visakhapatnam

**3rd Year Student, Damodaram Sanjivayya National Law University, Visakhapatnam
1
The consumer protection Act, 1986, Section 2 (i) (d)
a country, where it is believed that principles of truth, dharma, transparency,

honesty etc. shall prevail in everything. These principles were indeed in
practice during the olden days. The Dharma Shastras, Vedas, Smritis
governed human relations and to an extent played the role of ‗law of the
land‘. Consumer protection has been a matter of concern since then. Manu,
the ancient law giver, in Manu Smriti prescribed the punishment for traders,
businessmen indulging in malpractices like adulteration, fraud etc.2
With the passage of time, the laws got amended to ensure proper
implementation. During the British Rule, India underwent a complete
makeover and a brand new legal system was introduced to administer
justice. It is worth mentioning that the new legal system did not over-throw
the old moral and value based Indian legal system, instead the morals,
values and customs prevailing in the country were made legally enforceable
by merging them to the newly introduced laws. The newly served laws to
some extent ensured legal protection to the consumers. Main legislations
that in a way are related with consumer protection, passed during the British
rule are The Indian Contract Act, The Drugs and Cosmetics Act, The
Agriculture Procedure (grading and marketing) Act, The Sales of goods,
The Indian Penal Code, etc. The passage of these legislations was a part of
those very first steps taken by the legislature to provide consumer protection
within the codified, generalised laws. These laws in-fact served and are
serving the intended purpose. As development is a continuous process,
marching of law, in tune with the society is crucial. Following the same,
even after the end of British rule, many laws have been rolled-in; this
includes The Essential Commodities Act, The Prevention of Food
Adulteration Act, The standard of Weighs and measures Act etc. A benefit
of these acts is that a consumer need not prove mens rea. Rather, the
2
Dr. A. Rajendra Prasad ― Historical Evolution of Consumer Protection & Law in India‖
Journal of texas consumer law pg. 132
offences are of strict liability.3 The most recent development in laws

relating to consumer protection is the Ombudsman(s) Act(s). In India,
service sectors like banking, education etc. have acquired a great
importance. The prosperity of these sectors on one hand leads to
development of the country, while on the other, the consumer is often
exploited by the service providers. As these services have been set in motion
very recently, the absence of laws, dealing exclusively with them worsens
the condition. In this paper, the legal protection of consumer vis-à-vis
service sectors shall be critically analysed.
Electricity and Consumer Protection

Electricity has now become one of the basic necessities of life. A large
number of houses as well as industries in the country run smoothly because of
the presence of electricity. The Electricity Act, 2003 has given the distribution
of electricity mainly in the hands of the state and central government, through
the state electricity boards. Also, it mandates the state and central
governments to frame a national policy permitting stand-alone systems for
rural areas.4 Though the act has given the responsibility of providing
electricity to all areas to the state and the central government,5 the provision
sounds to be too hypothetical. In reality, hardly any effort, except installing
solar panels in some of the villages is made by the government to promote and
provide electricity connections to the villages. Moreover, the intent behind
installing solar panels appears to be an effort to gain votes! The known fact of
power back-up provided by solar panels as well as condition of solar panels in
the villages like Borda (Madhya Pradesh) is evident.
3
D.N. Saraf, Law of Consumer Protection in India 169 (1990).
4
The Electricity Act, 2003, Section 4
5
Ibid, Section 6
THE ELECTRICITY ACT, 2003
The Electricity Act, 2003 provides for the mechanism from generation to
supply of electricity. It casts certain rights and duties on the consumers and
the licensees for the proper distribution of electricity. One such duty on the
licensee is to give supply of electricity to the owner or occupier of a
premise, within a month after receiving written application.6 However,
certain exceptions have also been made in case of a hamlet or village area,
where no provision for supply of electricity exists. It is up to the discretion
of licensee to take ‗reasonable‘ time for providing electricity to such area.
The discretionary power so vested in the licensee gives sufficient chances of
consumer exploitation. There are many unreported cases, where people have
to wait for a much longer period than that of the prescribed, to get a new
connection. They often have to pay additional amount to fasten the work,
also are sometimes asked to procure goods like cables, poles, transformers
etc. necessary to provide electricity connection; Moreover, the goods
procured by consumer becomes the property of the electricity department!
This practice though is not in the interest of consumer, but is legalised by
the Section 46 of the Electricity Act. It can therefore be suggested to amend
the section, as ―The State Commission may, by regulations, authorise a
distribution licensee to charge from a person requiring a supply of electricity
in pursuance of section 43 [up to 50% of ] any expenses reasonably
incurred in providing any electric line or electrical plant used for the
purpose of giving that supply. The rest 50% shall be subsidized by the
government. Also, a definite period shall be fixed, within which the licensee
shall provide connection; failure to do so would entitle the applicant to file
complaint before ‗appropriate commission‘7 claiming compensation, which
6
Ibid. Section 43 (1)
7
‗appropriate commission‘ as defined by Section 2 (4) of the Electricity Act, 2003
("Appropriate Commission‖ means the Central Regulatory Commission referred to in sub-
should be paid by the licensee, if the licensee fails to present before the
commission, all such evidences, which reasonably justify the delay so
caused.
Section 68 of the Electricity Act gives guidelines for installation of
overhead electricity lines. Installation of overhead lines is possible only
after approval of the appropriate government. Sub section 5 of section 68 of
the said Act also enables the executive magistrate or any other officer
appointed by the appropriate government to demolish/remove or do all such
things, he deem fit to handle cases wherein the supply of electricity by the
overhead line is disturbed/distracted or is likely to be disturbed by any
object which has been placed subsequent to installation of such line.
However, if a tree had been in existence before installing electricity lines,
the person interested in the tree shall be compensated. The interesting
question that arises here, which is also being experienced by a resident of
the city Bhopal in Madhya Pradesh is, if the overhead line has been installed
on someone‘s piece of land, without the knowledge/consent of the
landowner, who subsequently erects a building, leaving the space where the
overhead line is passing vacant, would this section entitle the executive
magistrate to demolish the constructed area near the overhead line, which
in-fact has been installed due to a fault that is not from owner‘s side? Also,
when the owner requested the electricity board to shift the line, he by the
virtue of Section 43 was asked to pay the cost of shifting. Inspite of paying
compensation to the aggrieved land-owner, he is being asked to bear the
cost of shifting! It is clearly exploitation of the consumer by state. Someone,
who is interested (though not an ‗owner‘) in a tree is legally entitled to
compensation, but not the one, who actually owns the premises! Therefore,
provisions shall be made to deal with such issues. Apart from this, the act
also lays down provisions relating to establishment of commissions vested
section (1) of section 76 or the State Regulatory Commission referred to in section 82 or the
Joint Commission referred to in section 83, as the case may be ;)
with powers of civil court, which deal with complaints related to electricity.8
The proceedings before the appropriate commission are made to be of
judicial nature.9 Any person aggrieved by the decision of the appropriate
commission or adjudicating officer may file appeal before the appellate
10
tribunal, established by the central government, within 45 days of such
order, however, the tribunal may, if it has a reason to believe that the appeal
could not be filed due to a reasonable reason, allow appeals filed after
expiry of the period of 45 days.11 The appellate tribunal is bound to dispose-
off the complaints filed before it, as expeditiously as possible, and if it takes
more than 180 days to settle a complaint, it shall record in writing the
reasons for such delay.12 Provision has also been made for appeal to the
Supreme Court against order of the appellate tribunal within 60 days of
passing of such order, subject to extension of a further period of 60 days in
exceptional cases by the Supreme Court.13
It is worth noticing that the jurisdiction of consumer courts in cases
relating to electricity was not clear until the judgment of Supreme Court. It
had been held by the Punjab and Haryana high court that consumer courts
do not have the jurisdiction to hear electricity theft cases.14 Also, the Gujarat
high court has held that consumer courts cannot entertain complaints related
to electricity supply.15 Supreme Court has said that the consumer courts
cannot entertain complaints under the Electricity Act, 2003.16
8
Supra Note 6, Section 94
9
Ibid. Section 95
10
Ibid. Section 110
11
12
13
Ibid. Section 125
14
http://zeenews.india.com/news/punjab/hc-stays-power-theft-case-hearing-in-consumer-
court_853926.html (Visited on 09-03-2014 at 10:37 A.M.)
15
Deputy v Jagrut (http://indiankanoon.org/doc/58567/) (Visited on 09-03-2014 at 10:49
a.m.)
16
M.J. Antony ― Dispute over power bills out of consumer court‘s purview‖ Business
Standard, New Delhi, July 14, 2013
So as to ensure speedy and timely justice for the consumers, several

state governments have established electricity ombudsman as well. The
primary objective of these institutes is to safeguard consumer interests. In
some of the states, ombudsman do not directly accept complaints from
public, rather they are appellate authorities;17 for example, the Kerala
Electricity Ombudsman. Another benefit of filing appeals before
ombudsman is, the parties do not need legal representation. The party itself
can appear before the ombudsman. Also, there is a defined period within
which an ombudsman has to dispose ofF a complaint.18
Though some steps have been taken to safeguard consumer interest, there is
still a long way to go! There are many flaws in the laws that need to be
corrected to make them practically implementable in the present day
scenario.
Consumer Protection & Education
―The educated differ from the uneducated as much as the living differ from
the dead‖
-Aristotle
Life- the very essence of this planet, the sole reason for existence and the
one word that rules this universe, is only known to us because we learned it!
So as in order to infuse life to his child, Mr. Unnikrishnan, an Andhra
Pradesh domiciled, financially struggling father filed a case in the Andhra
Pradesh High Court challenging the cancellation of admission of his child
from the school as he had no money to pay the fees. Mr. Unnikrishnan
claimed that the ambit of article 21 of our constitution includes the right to
education for children.19 The court held the same. Following the case, the
legislature on August 4th 2009 passed the Right to Education Act, providing
free and compulsory education to tots aged between 6-14 years. The act
17
http://www.kseboa.org/kseb/electricity-ombudsman-and-consumer-grievance-redressal-
forums-2811395.html (Visited on 09-03-2014 at 15:55)
18
Ibid.
19
1993 SCC (1) 645
was added to article 21(a) of our constitution and was enacted from April 1 st
20
2010. With this, India became one of the 135 countries to make
education, a fundamental right.21 Apart from the elementary education,
India has opened new horizons for education in almost every field. Institutes
like IITs, IIMs, and NLUs have been established for imparting quality
education. These institutes to a great extent have been able to achieve the
intended goal. With the establishment of these elite institutes, other alma-
maters as well have started giving a cut-throat competition, by improving
the quality of education they used to provide. As we know, a coin has two
sides; the same is the case with these institutes as well. One side of
educational institutes is bright but the other side is equally darker. Affording
higher as well as elementary education of a child is a tough row to hoe!
Though these institutes are in a way helping the country to prosper, but the
benefit of the advanced education system cannot be reached to the
economically weaker sections. The fee charged by the quality education
providers is so high, that an economically weak person could not even think
of affording it. Also, if a person decides to take admission in a university
and pays the fee, but afterwards decides to withdraw, he would not recover
his money22 unless the court orders for the same. Brochures claiming job
guarantee and other such malpractices of advertisements are also rampant in
the society. In same was held by a foreign court in the case of State v Jost23,
where the brochure of the institute depicted unbelievable scenic attractions
to enhance one‘s education. However, in reality there was no such thing.
The court held the school liable for false advertising. Another case of
consumer exploitation by the educational institute is, where a person
enrolled for a two year course and an assurance from the schools side that
20
"Provisions of the Constitution of India having a bearing on Education". Department of
Higher Education
21
"India joins list of 135 countries in making education a right". The Hindu News. 2 April
2010
22
Drucker v New York University (57 Misc. 2d 937)
23
127 vt. 120
she would be qualified to teach mentally retarded children, but found

exactly the opposite on completion of the course.24 It is worth noticing that
even the ‗producers‘ of lawyers are an exception to these practices. In the
case of Donnie Ashok v Gujarat National Law University25 the plaintiff was
denied admission in the said university on the grounds that he repeated his
HSC examinations. However such rule was neither mentioned in the
brochure nor in the Act of state legislature by which the said university was
established. The Gujarat High Court held that the plaintiff is entitled to
admission. These malpractices are not only confined to higher education,
but also to elementary education. In a legal awareness camp „Abhyeti‟
organised by the Damodaram Sanjivayya National Law University,
Visakhapatnam, a number of cases were reported, wherein complaints like
collecting ‗fees‘ in one or the other form by government schools were put
forward, also there were issues, where the food for the mid-day meal
scheme is either ‗stolen‘ or is not prepared26 Apart from this, cases are
prevalent where, the State education board charges money for re-totaling of
answer sheets of higher secondary examinations, and the applicant is sent
‗no-change in marks‘ letter, however, after filing RTI and getting a copy of
the answer sheet, the mistake in calculation of marks can be spotted.27
The most crucial question to be addressed is how to overcome these
problems? The countries like Washington have introduced the ‗education
ombudsman‘. The ombudsman works at the ground level and help parents
resolve disagreements with schools about Education services quickly and at
the lowest level possible. The Ombudsman does this by: acting as a neutral
facilitator for problem solving; helping parents and educators better
understand education processes and regulations so that a child‘s services are
24
Ojalvo v Ohio State University (No.-0602 (Ohio. Ct. cl. 1976))
25
http://barandbench.com/content/donnie-v-gnlu-case-amicably-settled-gnlu-director-
grants-admission-donnie#.UxxfdPmSw9Y (Visited on 09-03-2014 at 18:03)
26
Damodaram Sanjivayya National Law University, Abhyeti Report pg.127
27
Anand Panwar ‗Retotaling ke naam par chaatron se vasooli‘, DB Star, Dainik Bhaskar,
Bhopal 25th October 2011
ensured and are appropriate.28 It also helps students with special needs to
receive services and supports, to enable them to benefit from public
education, as guaranteed under central and/or state laws.29 The same
concept can be adopted for the Indian education system as well. Wherein,
all the higher education affiliated to UGC, AICTE and NCTE are to
establish ombudsman to address issues relating to all matters connected to
education.30 This in-fact has been announced by the government recently. It
is suggested that apart from the higher education institutes, ombudsman
shall also be set-up at district level for schools which shall have exclusive
jurisdiction of all matters relating to education. Appellate tribunals shall also
b set-up on state level to hear appeals from district educational ombudsman
and higher education institute‘s ombudsman. No other court except the
appellate tribunals shall have jurisdiction of these cases. This would ensure
a speedy trial and also lessen the burden of District courts and High Courts.
A provision should also be made for appeal against judgment of appellate
tribunal to the Supreme Court, whose decision shall be final and binding.
By introducing the above suggested reforms the Indian education
system can be brought on track to a great extent.
Consumer Protection and Banking

According to the Consumer Protection act, ―Consumer‖, includes a person
who hires or avails of any service for a consideration.31 Therefore in
banking transactions, a customer of a bank who has a bank account with the
bank or a person who purchases a bank draft, hires locker facility or obtains
bank guarantee from a bank are all ―consumers‖ and can prefer complaints
28
http://www.directionservice.org/cadre/ctu/practicesA.cfm?id=71 (Visited on 09-03-2014
at 18:17)
29
Ibid
30
Aarti Dhar ‗Ombudsman for central educational institutions‘, The Hindu, New Delhi, 17 th
January 2012
31
The Consumer Protection Act, Section 2(1)(d),
under the Act for ―deficiency in service‖ on the part of the bank or for
―restrictive trade practice‖ or ―unfair trade practice‖ adopted by the bank.32
Who are all consumers in banking services?
Bank consumer includes
1. Deposit account holders of various kinds – savings bank, current
account, overdraft accounts, term deposits.
2. Borrowers of various facilities – term loans , cash- credit/ working
capital limits.
3. Credit/Debit card holders.
4. Persons availing guarantee or letters of credit facilities, as also
beneficiaries thereof.
5. Person s purchasing bank drafts (including those who are not regular
account holders) and beneficiaries thereof.
6. Beneficiary of cheques issued by account holders.
In Vimal Chandra Grover vs. Bank of India,33 it was argued before the
Supreme Court on behalf of the bank that the appellant, who took overdraft
facility from the bank by pledging shares, is not a consumer within the
meaning of the consumer Protection Act. The Supreme Court repelled the
arguments of the bank and held that bank is rendering service by providing
overdraft facilities to a consumer, which is not without consideration. Bank
is charging interest and other charges as well in providing the service.
Provision for overdraft facility is certainly a part of the banking and falls
within the meaning of ―service‖ as provided in section 2(1)(o) of the Act.
Consumer Forums
Customer in relation to banking gives a clear idea of who is a consumer
together with a list of persons who have been legally recognised as
32
http://indianresearchjournals.com/pdf/APJMMR/2012/December/8.pdf (visited on 15-03-
2014 at 15:42)
33
[2000 (2) CPJ 11 (SC): AIR 2000 SC 2181]
consumers in relation to banking transactions and services. These persons

are entitled to raise disputes against their concerned banks with the
Consumer Forums under the provisions of the Consumer Protection Act of
198634. The main objective of this act is to provide for better protection of
interests of consumers and for settlements of their disputes.35
Consumer forums which have all the trappings of Civil Courts, which are
simple, feasible and equally efficacious, are an alternative remedy available
to customers of banks. These forums to a large extent have eliminated the
relevance of regular Civil Court in so far as consumer services related to
complaints are concerned. As it is very economical there is no Court fee
payable for lodging a complaint.
Consumer Forums are three tired:
1. The District Forum
2. The State Commission (Appellate)
3. The National Commission (Appellate)
The prescribed limitation period is:

(i) The complaint should be preferred within two years from
the date of cause of action.
(ii) The limitation period may be extended by the Forum on
the filing sufficient reasons for delay.
The Limitation Act does not apply to the proceedings before the
Consumer Forums. However, the National Commission has been applying
the Rules under the Act only on a ground that it would not be conducive to
public policy and public good to have a stale claims brought up for
adjudication after lapse of long periods of time. Further, it would certainly
not be conducive in furtherance of public policy that government agencies
34
http://www.financialexpress.com/news/banking-services-and-consumer-protection/69580
(Visited on 15-03-2014 at 19:00)
35
http://wiki.answers.com/Q/What_is_the_objectives_of_the_consumer_protection_act
(Visited on 15-03-2014 at 19:07)
like public sector banks should obstruct the investigation of claims made
against them, but putting forward the plea of limitation merely on technical
grounds.36
Civil Courts
There are certain disputes which cannot be resolved by Consumer Forum
due to the involvement of intricate questions of fact and law, recourse to
Civil Courts would be inevitable. There are cases where examination of
witnesses or detailed scrutiny of documentary evidence, under Evidence Act
would be necessary.37 Few complicated issues which could not be
satisfactorily adjudicated under the Consumer Protection Act would seek a
redressal in a Civil Court.
Filing of writ before High Court

The writ jurisdiction of the High Court under the Article 226 of the
Constitution could be invoked only when there is no alternative efficacious
remedy.In K.V. Padmanabhan V. Consumer Disputes Redressal Forum,
Eranakulam.38 The High Court of Kerala was emphatic when it held that the
High Court is not statutory, appellate or revisional authority under the Act.
An order made by the district forum is appealable under Section 15 only
before the State Commission, an order of the State Commission only before
the National Commission and the order of the National Commissions only
before the Supreme Court.39
When a Redressal Forum inadvertently passes an order although it lacks
jurisdiction under the Act, the High Court can quash such illegal order.40
36
Agnes D‘ Mellow v. Canara Bank & Anr. I (1992) CPJ 355 (NC)
37
M.S. Srihari, banking and Consumer Rights, chill publications Nagpur, pg. 14
38
AIR 1992 Ker. 179.
39
K.V. Padmanabhan v. Consumer Disputes Redressal Forum, Ernakulam (AIR 1992 Ker.
179)
40
Calcutta Metropolitan Development Authority v. Union of India AIR 1993 Cal. 4
Dismissal of a writ petition, not on merit would not operate to prejudice of

the complainant in the matter of pursuing other remedies under Consumer
Protection Act.41
Banking Ombudsman
Banking Ombudsman is a higher official appointed by the RBI The
objective of appointing an Ombudsman is to settle customer grievances
against deficiency in some banking services. This appointed Ombudsman is
either a General Manger or a Chief General Manager of RBI.42
Banks covered under the scheme are the following:
Banking Ombudsman scheme is applicable throughout India and all banks
are covered under this scheme. The banks may be public sector bank,
Private Sector Banks, Foreign Banks and Co-operative Banks.43
Objectives of the Scheme:

The basic objective of this scheme is to settle customer complaints. If the
customer has any complaints which the bank cannot settle, then it is the duty
of the Ombudsman to settle the problem. The settlement is to be made by
agreement between the bank and the customer.44
CONCLUSION
Though India is a prospering country, Exploitation of consumers by the
service providers is rampant in India as well. Though the government has
taken steps to protect the consumers by establishing bodies like
ombudsman, and introducing consumer protection laws, achieving the
intended goal seems to be a distinct reality; As it was noticed in the legal
literacy camp conducted by DSNLU Visakhapatnam in Bhopal, that the real
sufferers of exploitation are the rural people, who are not even aware of the
41
Bhag Singh Pretam Singh v. maruti Udyog Ltd. (1992)I CPJ 7 (NC)
42
http://www.rbi.org.in/scripts/FAQView.aspx?Id=24 (Visited on 15-03-2014 at 20:03)
43
http://www.keralabanking.com/html/who_is_banking_ombudsman_.html (Visited on 15-
03-2014 at 21:01)
44
Ibid.
basic rights bestowed to them. The ombudsman and other consumer friendly
rules/laws are neither promoted by the media nor by others especially in the
rural India. Also, there are ‗legal‘ exploitations by the government; one such
being the electricity act. Apart from this consumers are often exploited by
educational institutes; silence of law further spoils the situation. By
introducing the reforms suggested in the paper, the laws can be made to
march in tune with society thereby ensuring greater protection of interest of
the consumer.
INDIA AND HOMOSEXUAL MATRIMONY: A SOCIO-

LEGAL PERSPECTIVE
Anurag Dasgupta*
SECTION 377 : THE HARBINGER OF ALL EVILS

It started well back in 1860s when the Victorian morality was looming at
large, large enough to pervade into the legislative enactment namely, the
Indian Penal Code 1860. It was then that section 377 dealing with unnatural
sex had kept bestiality and homosexuality in the same podium. However
globalisation has pushed India ahead of the cultural orifice within which the
earlier civilisations were limited, today a Indian enjoys an American crass
sitcoms with equal vigour as a man sitting in California, and there are no
qualms about it. One cannot just limit the effects of globalisation to that of
technological and scientific advancements excluding completely the sexual
dimensions. India has come a long way from the country which was once
controlled by the Victorian morality or the ancient Hindu gospels, today
there are single mothers both in US and India; there are divorce at
alarmingly high rate both in India and any other cosmopolitan country. In
such circumstances to cling to the old excuse of morality won‘t hold much
water. More importantly to say that our scriptures never recognised
homosexuality would be wrong, ―Vikriti Evam Prakriti‖ thereby meaning
what is unnatural is also natural has been inscribed long before in Rig Veda,
thereby an implied recognition to the homosexuality. Various intellectuals
ranging from Dr Manmohan Singh, Justice Bilal Nazki, Oscar Fernandes,
Nelson Mandela, Amartya Sen, Vikram Seth etc have openly demanded the
repeal of section 377 at least to the extent of decriminalisation of consensual
gay sex.1 There was a time when maybe when engaging in homosexual sex
*4th Year Student, Chanakya National Law University, Patna

was considered to be ‗carnal intercourse against the order of nature‘ but

both science and society over the years have stated that the very concept of
‗order of nature‘ has gone a massive change. To cling to the Victorian
sensibilities religiously even after such a long time, is extremely ridiculous
considering the fact that the Britons themselves have come up with same-
sex marriage Act 2013. Indian judiciary on one hand by relying on 19th
century Principles of Victorian morality chose to overlook the principles of
egalitarianism enumerated way back in the 12th century in Magna Carta The
concept of morality to which the section is clinging to is as aptly stated by
Fali S Nariman ―archaic and quaint…reflects the era when it was enacted …
and at present should be done away with‖2.The very continuance of the
section is itself utter disrespect towards the constitution and to the humanity
as whole.
HOMOSEXUALITY- A PSYCOLOGICAL DISTORTION ?

Till date there has been no concrete theory whereby homosexuality has been
proved as a psychological deviation, there has been no scientific grounds for
proving homosexuality as an abnormality. Time and again it has been
reiterated in WHO reports or American Psychiatric Association that for
most of them it is merely a variation of sexual orientation3 ,something
which unlike projected is very normal human tendency. Although in the
earlier times medical sciences treated homosexuality as an ailment but soon
variations followed of how homosexuality was viewed.4 Sigmund Freud
believed that the libido inside a human being has bisexual quality, it can
1
Ramesh, Randeep , ―India‟s Literary Elite Call for Anti-gay Law to be Scrapped‖, The
Guardian (London)(18 September 2006)
2
Suresh Kumar Kaushal v Naz Foundation
3
American Psychological Association, ―Sexual Orientation and
homosexuality”,http://www.apa.org/helpcenter/sexual-orientation.aspx (last visited 28
December 2013)
4
J Katz , ―Gay and American History: Lesbians and Gay men in the United States”, New
York: Thomas Crowell,(1995)
either develop into a homosexual being or heterosexual being , in the course

of development. He went on to state bisexuality as apart of original libido
endowment.5 According to him it was only due to social coercion that
people suppressed the homosexual part inside them6, however such
suppressions are likely to have negative impact psychologically and
physically. Havelock Ellis stated that being exclusively homosexual is to be
deviant because they form a part of minority, however society should accept
them as not only they are harmless but can be valuable too. 7 It has been
contended in various studies that gay men are likely to have higher rates of
anxiety disorders; further the likelihood of suicide among the homosexuals
are more when compared to their heterosexual counterparts8, also there are
more chances of sexual abuse and drug abuse in case of homosexual beings
than compared o heterosexual individuals.9 However these reports should
not be a deterrent factor for accepting homosexuals, firstly because none of
the above data are actually supported by concrete medical theory, secondly
even if we validate the data then it becomes all the more important that it
should be a valid reason for accepting homosexuals, because most of the
above disorders creep due to societal pressure and coercion, the indifferent
attitude of society towards homosexuals, which in turn leads to ego-dystonic
sexual orientation whereby homosexuals attempt to change their
orientations and hence are subjected to various psychological and
behavioural disorders , and ultimately yield to suicide or drug abuse. Hence
instead of shunning away people should create a space so that homosexuals
5
Sigmund Freud , Three essays on the theory of sexuality, London: Hogarth Press(1953)
6
H.M Ruitenbeek , The problem of homosexuality in modern society, New York: Dutton
(1963)
7
Colin Spencer, Homosexuality in History, New York: Harcourt Brace & Company (1995)
8
John Westfeld , Maples, Michael Buford, Brian, Steve Taylor, ―Gay, Lesbian, and
Bisexual College Students‖, Journal of College Student Psychotherapy (2001)
also see DM Fergusson, LJ Horwood ,EM Ridder , AL Beautrais , ― Sexual Orientation and
mental health in a birth cohort of young adults.‖,(July 2005)
9
G Ramafedi, JA Farrow , RW Deisher , ―Risk factors for attempted suicide in gay and
bisexual youth”, (June 1991)
can live a life of dignity. No doubt among these homosexuals there would a
small percentage of heterosexuals elite who would engage in a homosexual
fling merely out of fashion, and it is controversial as to whether such
individuals should be penalised or must be construed as manifestation of
free will; but then it always advisable to grant someone illegitimate right
than cull out a legitimate one. Practitioners of gay affirmative
psychotherapy states that homosexuality or bisexuality is not a mental
illness and that embracing and affirming gay identity can be a key
component to recovery from other mental illness or substance abuse.10The
American College Of Paediatrics have drove the last nail to the coffin when
they have stated that homosexuals are completely normal people, they are
neither ill nor sick, it is just that their sexuality has been expressed
differently. There are various factors behind homosexuality, some
biological, some psychological but the fact is no one chooses to be a
homosexual.11
HOMOSEXUALITY AND RELIGION

Since India was once a spiritually developed nation,hence even to this day
people tend to justify every act through spiritual connotation. However there
are varied believes regarding homosexuality, some out rightly ostracize
homosexuality, some are neutral, some openly accept it. Maulana Matinul,
Haq Usama kasimi, General Secretary of a political Party has said ―….
even animals don‘t tend to participate in such activities, then why should
10
APA : Guidelines for Psychotherapy with Lesbian, Gay &Bisexual Clients,
http://en.wikipedia.org/wiki/Psychology_and_homosexuality (Last visited 28 December
2013)
11
―Teen Q&A: Gay, Lesbian and Bisexual Teens‖, Children‟s Health Topics: Sexuality,
American College of Pediatrics,
2013)
we?12 And the researcher may humbly answer that this the very thing, the
sexual expression that differentiates between an animal and human!
Progressive Jewish authorities no longer believe in penalising
homosexuality. Christianity on the other hand has mixed standing on the
principles of homosexuality. Old Testament strongly abhors homosexuality,
some fundamental sects considers AIDS to be a punishment meted out by
God against homosexuals. Catholic Church on the other hand does not
regard being homosexual as a sin but insists on maintaining chastity and
thereby abstain from practising homosexuality.13 Islam out rightly
condemns homosexuality. Hinduism however has depicted homosexuality
way back in temple walls of Khajuraho. Apart from the above mentioned
religions there are various others like Taoism, Zoroastrianism, and
Buddhism give implied consent to homosexuality subjected to various
conditions. One may find that most of the religions have an implied consent
for homosexuality although most of the homophobes don‘t accept it.
According to them religion overall condemns homosexuality. Now even
assuming their contention, one finds religious intolerance a very tepid
reason for non-acceptance of homosexuals. Firstly because religion has
always been open to various interpretations and subjected to prevailing
morality at that time. Talibans have always used religion as the justification
for their barbaric acts, however that does not make their acts lawful.
Secondly India being a secular country religion must not play a pivotal
factor for the purpose of legislation if otherwise it is not dreadful for the
society, the government and the religious beliefs should be kept at safe
distance. Thirdly going through religious gospels ,one thing that there is
endorsement for feeling of universal love and compassion towards all, be it
homosexual or heterosexuals.
12
http://articles.timesofindia.inidatimes.com/20090713/kanpur/281686161 /indian-culture-
protest-march-general-secretary (last visited 26 December 2013)
13
http://en.wikipedia.org/wiki/Religion_and_homosexuality#cite_note-36 /Catechism of
the Catholic Church( last visited 26 December 2013)
HOMOSEXUALITY AND INDIAN CONSTITUTION .

Indian constitution has in its preamble stated that every citizens shall be
rendered justice, liberty, equality of status and opportunity, and also
fraternity which is what Dr Ambedkar had termed as social democracy. In
that very preamble Liberty of thought and expression has been allotted a
very pivotal role and so have equality of status and opportunity. In such a
scenario to quarantine the homosexuals and criminalise homosexuality
would be sheer impertinence towards preamble, the soul of the Indian
constitution, the mirror which reflects the culture and the desire of the
people. Furthermore Article 14 strongly debars a state from denying any
person equality before law or equal protection of the laws.14 Any non-
penile vaginal acts are not covered, this very ground is arbitrary and hence
violates Article 14.15 Moreover what is to be construed as order of nature
has been left for the Court to deduce the same, which yet again gives rise to
arbitrariness.16As Justice PN Bhagwati had rightly contented that equality
and arbitrariness as sworn enemies, in such a situation to debar homosexuals
from practicing homosexuality, to debar them to enter into marital bonds,
and hence so discriminate them against the other heterosexuals without a
concrete legal ground amounts to patent disregard for Article 14.As argued
in the case of Suresh Kumar Kaushal v Naz Foundation sexual intimacy is a
core aspect of human experience and is a important for mental health,
psychological well being and social adjustment. In order to prevent
perversity the section 377 has launched a lethal attack on the dignity of
various individuals. Moreover Article 21 so enshrined in the constitution
speaks about the preservation of life and the liberty of the persons ;section
377 clearly defies the article something which the framers had thought to
14
The Constitution Of India, 1950
15
AK Roy v UOI (1982) 1 SCC 271; KA Abbas v UOI and Anr (1970) 2 SCC 760
16
Suresh Kumar Kaushal v Naz Foundation
the most pristine part of the whole constitution. Homosexual conduct made
criminal, the declaration itself is an invitation to perpetrate discrimination,
reinforces societal prejudices.17Even considering the fact the homosexuals
are part of minority institution then it becomes all the more important for the
state machinery and institutions to protect their rights as it has done in the
past with various other religious, linguistic, cultural minorities. Accepting
that the section was valid when it was enacted in 1861, the unreasonableness
is pronounced with time and justification does not hold validity today.18The
172nd Law Report too have somewhat reiterated the same. In the case of
Suresh Kr Kaushal v Naz Foundation, it was rightly argued by learned
Counsel Shri Dhavan that section 377 targets ‗LGBT‘ as a class and hence
discriminatory in nature .Also that by keeping homosexuals on the same
podium as that of criminals creates fear and vulnerability19which also
impairs both the physical and psychological health thus violating Article 21.
Section 377 also violates the constitution by infringing in the realm of
privacy, something which was at considered to be the most sacrosanct entity
in a welfare–democratic government. To consider the judgement of
Honourable Supreme Court, upholding homosexuality as a crime, has sent
ripples across the other South-Asian nations which had heavily relied on
India, the world‘s largest democracy to echo the voices of millions. Article
29(2) of the UDHR states that in the exercise of rights and freedoms
everyone shall be subjected only to such limitations as are determined by
law solely for the purpose of securing due recognition and respect for the
rights and freedoms of others and meeting the just requirements of morality,
public order and the general welfare in a democratic society, and not
otherwise. Vikram Seth has rightly while criticising the judgement held that
17
Peerless General finance Investment Co ltd v RBI (1992) 2 SCC 343; Grace Jayamani v
EP Peter AIR 1982 Kant 46
18
DS Nakara v UOI (1983) 1 SCC 305; Kartar Singh v State of Punjab (1994) 3 SCC 569;
M Nagraj v UOI (2006) 8 SCC 212
19
Prem Shankar Shukla v Delhi Adminstration (1980) 3 SCC 526; DK Basu v State of
West Bengal (1997) 1 SCC 416
―..it is intellectually shallow and ethically hollow……to take away the

rights of 50 million LGBT in India…it is scandalous and inhumane‖20
SAME SEX MARRIAGE: WHY INDIA SHOULD GET

READY TO AMEND THE LA WS?
One can see very clearly from the above points that homosexuality is very
much a part of regular society, some acknowledge it others suppress it, but
in such a situation to debar homosexuals of their right? A right to which
they are entitled for the simple fact that are depending only what was
promised when India took birth that is freedom. Moreover the fact that they
are placed on the same podium as that of criminals is extremely
dehumanising. India no doubt remains one of the earliest countries to have
strong bouts of morality and cultural reverence but at the same time India
was also one of the earliest countries to respect the spirit of humanity, it has
been long been a party to UDHR, and even the Indian constitution reflects
so, but then the decisions of the courts portray something else. No doubt the
road won‘t be smooth enough, but that should not be the reason for
promoting discrimination against the homosexuals, from debarring them of
some basic rights, including matrimonial. There would be political divide
between gays and non-gays, no doubt some parties would try to play
electoral cards but then, isn‘t religion, caste, gender also subjected to the
same? Indian society is surely not going to accept a homosexual family
(even though there number would be minimal), but then it had not accepted
live-in relationship either, but now with the help of legal prudence it has
accepted. Moreover India is one of those countries where people still raise
20
Soutik Biswas, ―Why author Vikram Seth is angry‖
,http//www.dawn.com/news/1075388/why-indian-author-vikram-seth-is –angry( Last
visited 26 December 2013)
their eyebrows on sensual dance numbers, still debate over whether Public
display of affection should be criminalised, still fidget over the legal age for
drinking, still think twice before marrying a person of different religion, still
depict homosexuality as a comic caper and nothing more…yes it would be
difficult to accept homosexuals but then when did tolerance became a
problem for India and it is in the light of these rights that India must
overlook the pseudo-moral barriers it has so envisaged. In such a situation
the Indian state machinery can play an indispensable part to encourage
people to assimilate homosexuals.
Most of the homosexuals out there are in deep state of transition because
inside them the voice of their sexual orientation is something and on the
outside the governments voice is something else, and in this very conflict is
leading to their psychological extortion, to which many of them have
already succumbed. There has been various charlatans who have claimed
that authorising same-sex marriage would lead to ‗Cultural Apocalypse‘ but
then what was the actual Indian Culture? Was it Kamasutra or was it the
Victorian sexual philosophies? Indian culture which history has rightly
witnessed have undergone massive changes over each generation, at such a
juncture to claim that the ‗True Indian Culture‘ is being defiled is itself a
idiotic claim. Also even assuming the fact that homosexuality be against the
very Indian morality, or the normal notion of sexuality, even then also one
can practice his heterosexuality on his personal space, no one has coerced
him to turn homosexual, but one‘s own personal belief should not be
allowed to overpower someone else‘s liberty and fetter freedom of thought.
Various fingers have pointed to the direction stating that with legitimacy of
homosexuality the obscenity and vulgarity is bound to increase, but with
utmost respect the researcher wishes to state that legitimising homosexuality
in no manner is intended to override section 294 IPC which already aims at
curbing public obscenity whether caused by heterosexual or homosexual
acts.
There have been many critics who have claimed that same-sex marriage is
likely to corrupt society. The counter-question is how? No answers. But the
business of adoption is really going to get boosted up with, homosexuals
either adopting or engaging in IVF or artificial insemination something
which was largely ignored by heterosexuals. Legalising homosexual
marriage would also ameliorate the lives of those gays who are forcibly
married off with opposite sex for the fear of social debasement. Also that
the legalising homosexuality and thereby same-sex marriage would
encourage gays to come out in the open and address their problems
especially HIV/AIDS which would in turn allow the government to
intervene effectively ,as has been in the case of China and Brazil. Moreover
UNDP director has rightly stated that countries which protect homosexuality
have double the rate of coverage of HIV prevention services-as much as
60%.21
Critics have claimed that same-sex marriage would lead to legislation-
upheaval since all the laws regarding marriage, divorce, adultery etc would
need to be changed, but didn‘t the concept of backward class too lead to
reservation policy? Or Dowry Prohibition Act for abolition of dowry? It is
only when such social upheavals happen and that the legislature adequately
answers them that t we feel the presence of a democratic welfare
government and the work of legislature. As Eugene Ehrlich had rightly said
is that laws must be in consonance with the centre of gravity which lies in
the society and which something like society is very dynamic.
There has been yet another argument that homosexual family would be a
bad influence on society, the children who grow in such homosexual
environment are likely to be drug addicts, social misfits, perverted, be
lonely. Homosexual marriage also many of them claim that has high divorce
rates. All of the above problems can be equally be associated with
21
http://www.macaudailytimesnews.com/index.php?option=com_cotent&task=view&id=18
780&Itemid=32 (Last visited 26 December 2013)
heterosexual marriages as well, the heterosexual divorce rate for instance in

US is 50%.22 The fact that how a society or a child is influenced is very
subjective in nature, also influence is never an isolated identity whereby
only one factor namely family plays the only role, it is an agglomeration of
family, society, schooling, perceptions etc. Even in case of same-sex
parenting the child, can be nurtured through love and care. Much research
has documented the lack of correlation between parent‘s sexual orientation
and any measure of child‘s emotional, psychosocial and behavioural
adjustment. These data have showed no risk to children as a result of
growing up in family with gay parents.23 It has been time and again stated
by American Psychological Association that there has been no scientific
basis to show that LGBT families have problem in social relationships, or
that the children are likely to be abused, or that they have problem with
sexual identity or that they have more chances of being sexually abused.24
Many of the critics like Charles Colson and Anne Morse in their Essay,
―Societal Suicide‖ have pointed that homosexual parenting does not involve
procreation of children, and are hence against the order of nature. However
going by that analogy even the marriage between heterosexuals who do not
procreate child due to any medical, sexual or personal reasons should also
be considered against the order of the nature? Recognising same-sex
marriage not at all endanger the heterosexual marital institution already
existing in India. It is just that there would be recognition of a parallel
marital institution.
22
Rachael Flair, ―Argumentative Essay:Gay Rights‖
http://www.redbubble.com/people/barefootmama/writing/3841495-argumentative-essay-
on-societal-suicide-gay-rights (Last visited 27 December 2013)
23
JG Pawelski , EC Perrin , JM Foy , ―The effects of marriage, civil union and domestic
partnership laws on health and well being of the children‖,( July 2006).
24
APA : Guidelines for Psychotherapy with Lesbian, Gay &Bisexual Clients,
2013)
Various sociologists have predicted that crimes like sodomy (non-voluntary)

would increase, sexual bullying including that of same sex would also rise,
if homosexuality is decriminalised and same-sex marriage be allowed. The
fact that there are rapes should going by the same analogy criminalise every
heterosexual relationship? The fact that homosexual relationship and
thereby same-sex marriage if legalised does mean that such marriage or
relationship must be purely consensual in nature, any form of coercion or
bullying would be dealt strictly as a crime against human body. However
the fact that homosexuality is criminalised would surely give enough
reasons for the homophobes to engage in bullying against the homosexuals,
thereby sexual tensions between the two groups are bound to rise. One thing
is for sure as stated by Sonal Sharma, a research assistant in Ambedkar
University Delhi that criminalising homosexuality would do is ,that if a
homosexual is raped, there won‘t be any remedy, since the victim would
himself be treated as criminal in the first place25.In Russia where there have
been passage of various Anti-Gay laws has number of cases of gay
teenagers being tortured and forcibly ousted on the internet26.As per a
report in the Southern Poverty Law Centre , ―Many of the American
religious right groups who have lost their battle against LGBT rights in the
US are now aiding and abetting anti-LGBT forces in countries where anti-
gay violence is prevalent‖27.
Yet another important argument that has been placed forward in the case of
Baker v Vermount28, that if same-sex couples are contributing equally like
other heterosexuals namely by paying taxes, then why should they be denied
such an important right i.e right to marry. Moreover gay and lesbian couples
argued in the case that they were denied the protection of more than 300
25
Gayatri Jayaraman , ―Cover story: Gay Rights‖, India Today ,December 30 2013
26
Emine Saner ―Gay rights around the world: the best and worst countries for equality‖
http://www.theguardian.com/world/2013/jul/30/gay-rights-world-best-worst-countries (Last
27
ibid
28
744 A.2d 864 (Vt. 1999)
laws as a result of being not allowed to marry. Also in another case which
though pertains mainly to racism can be transplanted in the case of same-sex
marriage as well ; Loving v Virginia29 ,the court held that the inter-racial
couple cannot be denied the right to live where they pleased due to their
interracial marriage. Thereby meaning one‘s fundamental rights cannot be
cut off through an otherwise legal marriage.
As rightly said by David Tucker; ―..Marriage should be regarded and
accepted as legal protections of people. Marriage is recognised to be
person‘s constitutional right. The traditional sexual morality are to accept
the new reality. They should understand that the things can be changed, and
every person has the right to make his or her own choice. People are
different they have different interests, values etc. However they all have
common right –right to be happy30‖
Gay rights laws do not give the gay community any special privileges but
simply the same basic rights of equality that every straight person is
given31; including marriage and raising family. Like Aditya Advani, states
that ―…at the end of the day gay couples lead very ordinary, boring lives
like anyone else….there is nothing extraordinary about us..All we want to
do is to lead these boring , ordinary lives.32‖
29
388 U.S. 1 (1967)
30
David Tucker, ―Gay Marriage: Free Essay Sample on Sociology”
http://www.helpfulpapers.hubpages.com/hub/Gay-Marriage-Free-Essay-Sample-on-
Sociology (Last visited 27 December 2013)
31
Kelkel1185, Rockford, OH , ―Gay Rights‖
http://www.teenink.com/opinion/social_issues_civics/article/249524/Gay_rights (Last
32
Gayatri Jayaraman , ―Cover story: Gay Rights‖, India Today ,December 30 2013
CONCLUSION
There has been doubt, lots of clamour as to whether homosexuality should
be criminalised or not, some of them have stated it a blot on the face of the
fundamental rights so enshrined, many other have gone to the extent of
saying that fundamental rights are subjected to limitations, and criminalising
homosexuality and banning same-sex marriages in India are just part of
those very limitations. However in such a situation it is Justice Vivan
Bose33‘s judgement that leads all the cacophony to rest, ―When there is
ambiguity as to construction of clause in the chapter of fundamental rights,
it is our duty to resolve it in favour of the freedoms so solemnly
stressed.‖The last and perhaps the most important reason for legalising Gay
marriages would be ―celebration of love‖ which perhaps rises above all the
social precincts and political principles. Vikram Seth has beautifully
expressed this very above notion ―..we live on a small planet as unimportant
star. Life is not easy for anyone. Loss, fear, failure and disappointment,
pain, ill-health, doubt and death engulf everyone equally. What makes life
bearable is love and to be loved….To not able to love the one you love is to
have life wretched away. To do this to someone else is to murder their soul.
No one who thinks about this –free from extraneous voices in their head –
would ever, if they are human, dream of being so cruel.34‖
The fact that India was one of the earliest advocates of love, alternate-
sexuality, humanity and equality makes it really disgraceful for the Indian
culture and community as a whole to such indifferent attitude towards same-
sex relationship. The answer to whether Indian society is ready for same-sex
marriages, would be no, because somewhere there are still societal fears,
pseudo-moral principles, religious deterrence that still binds most of the
Indians but then that should not deter from amending and thereby legalising
same-sex marriages in India. If one introspects; India was not ready even
33
Krishna v State of Madras (1951 SCR 621)
34
Vikram Seth, ―Some thoughts‖, India Today December 30 2013
then (owing to the dissenting clamours) when reservation policy was

mooted, but nevertheless the government machinery went ahead with it and
people eventually to a large extent accepted it. With the sexual belligerence
going all over the world, India should not stay behind from espousing what
many believe as the newest challenge to humanity.
A SHORT INTRODUCTION TO THE DEBATES AND

POLITICS OF THE FDA AND THE PHARMACEUTICAL
INDUSTRY
Alaukik Shrivastava*
Saakshi Sharma**
INTRODUCTION
This article deals with the politics and the various debates involved in the
field of pharmaceutical industry in reference to the lifesaving medicines and
treatments. It is hardly a contested fact that there is something wrong in the
way the Food and Drugs Administration (FDA) and the pharmaceutical
industry works; keeping in mind that the prime objective of both the
institutions is a moral one, one that involves the lives of many, i.e. insuring
proper health and access to life saving drugs. Let us now take a glimpse at
the story of Ron Woodroof, also shown in the Oscar winning movie, Dallas
Buyers‘ Club (2013), to have a basic understanding of the topic.
Ron Woodroof was confronted with his mortality after he was diagnosed
with AIDS. AIDS is almost 100% terminal if left untreated but antiretroviral
drugs (ARVs‘) and treatment may convert it into a chronic, yet controllable
disease that would be more like diabetes or blood pressure. 1 Ron Woodroof
then went to the hospital for his treatment but found out that the medicines
he was administered were deteriorating his health even further. He then had
almost no faith in the hospital staff and in the medicines he was
administered and then he decided to make his own way. He started
smuggling and taking illegal drugs from all around the world and found out
that he was responding very well to the drugs he was administrating himself.
He says that the government and the pharmaceutical companies are trying to
*3rd year, B.A L.L.B (Hons.), Institute of Law, Nirma University,Ahmedabad.

**3rd year, B.B.A L.L.B (Hons.), Institute of Law, Nirma University,Ahmedabad.
1
Rahul Rajkumar, Comment, The Central American Free Trade Agreement: An End Run
Around the DOHA Declaration on TRIPS and Public Health, 15 ALB. L.J. Sci. & TECH.
433, 436, (2005).
make money by limiting the number of AIDS medicines in the market and
thereby playing with the peoples‘ health. He then started Dallas Buyers‘
Club, a club that provides illegal medicines to people suffering with AIDS.
The Dallas Buyers‘ Club has smuggled as many as 112 drugs that are illegal
in the United States. During Ron Woodroofs‘ time, the drug called AZT
which was once considered illegal in the United States itself was
administered to him. But Ron Woodroof and thousands of his customers
preferred taking a drug called dideoxycytidine (DDC) instead of AZT.
Later, years after Ron Woodroofs‘ death, AZT was found to cause nerve
damage and the doses of AZT was gradually lowered down. Also, the use of
DDC in the treatment of AIDS was allowed. So, in a sense, Ron Woodroof
was right in his actions, in his smuggling the then illegal drugs, as it saved
the lives of many people suffering from AIDS. This story raises a number of
issues. Why did the FDA not take such a step before? Was it because of the
fact that the big pharmaceutical companies (also referred to as the ―Big
Pharma‖ was not able to make money out of DDC then? Why did the
government and the Big Pharma not listen to the buyers‘ club? One thing is
for sure that many lives were risked and many deaths were caused because
of the time the government took in legalizing DDC. This presents before us
the first debate, the government v. the buyer‟s club. Ron Woodroof
always had this discontent in his mind that the government lacks in taking
action when it is most needed of them to take. But why did the government
keep quiet when it was most needed of them to respond. It is also to be
noted that no clarifications or even a simple apology was not given by the
government for their inaction. There is clearly something fishy in the way
the government and the pharmaceutical industry work.
THE DEBATE OF LIMITS OF PATENT RIGHTS
The second debate is the debate of limits of patent rights. ARVs (anti-retro
viral), for example, are needed to cure cancer. These ARV drugs, which
need to be taken for life, have been widely available in the United States,
but have been, because of the cost, "out of reach for most of those living
with HIV/AIDS around the world.‖2 "In 2000, the average worldwide price
for patented ARVs was more than $10,000 per patient per year." Today, the
same medicine sold in generic form costs as little as $168 per patient per
year. For example, because the ARV medicines have not been patented in
Guatemala yet, generic competition has decreased the prices of ARV
medicines, enabling better access to essential medicines.3 The generic drugs
cost $216 per person per year, while the brand-name drugs cost $4,818 per
person per year. However, as developing countries enter free trade
agreements that include intellectual property protections, access to these
life-saving generic drugs may be obstructed, increasing the number of HIV/
AIDS related deaths. According to humanitarian organizations such as
Oxfam and MSF, strict intellectual property rights will prevent developing
countries from gaining access to generic drugs for their poorer patients. To
address the public health crisis, availability of affordable antiretroviral
medications in developing countries is necessary. But with more stringent
intellectual property policies in bilateral agreements, prices of these
medicines will increase enormously. Supporters of access to generic
medicines argue that "essential drugs are not just another consumer product
but a human right, and that patients are injured by patents.‖4
The Agreement on Trade-Related Aspects of Intellectual Property Rights
("TRIPS") gives member countries some flexibility for patent protection.
However, with the latest implementation of the Dominican Republic-Central
2
Amy Kapczynski et al., Addressing Global Health Inequities: An Open Licensing
Approach for University Innovations, 20 BERKELEY TECH. L.J. 1031, 1032-33 (2005).
3
Press Release, Mddecins Sans Fronti~res, New Guatemalan Law and Intellectual Property
Provisions in DR-CAFTA Threaten Access To Affordable Medicines (Mar. 11, 2005),
available at http://www.accessmed-
msf.org/prod/publications.asp?scntid=14320051010373&contenttype =PARA.
4
Heimel, supra note 7, at 450.Hiemel, supra note 7, at 472 (citing Nathan For et al, The
Role of Civil Society in Protecting Public Health Over Commercial Interests: Lessons from
Thailand, 363 LANCET 560, 561 (2004)).
America Free Trade Agreement ("CAFTA"), drug companies face a barrier

in manufacturing generic drugs. These intellectual property protections will
probably prevent access to affordable, generic drugs necessary for patients
in the participating developing countries.
THE TRIPS v. CAFTA DEBATE
To understand the limits of patent debate it is also important to understand

the TRIPS v. CAFTA debate. In developing the TRIPS agreement, the
drafters' focus was to create universal standards for patents on
pharmaceutical products.5 However, CAFTA may disturb this international
uniformity of patent protection for pharmaceutical products because it sets
different, narrower standards.
Because of the pressure from developing countries and non-governmental
organizations, in November 2001, the WTO convened in Doha, Qatar to
address the public health initiatives." The WTO Members adopted a
separate interpretative statement called the Declaration on the TRIPS
Agreement and Public Health ("Doha Declaration"), where public health
commitments were solidified. The Declaration stated that the "TRIPS
Agreement does not and should not prevent members from taking measures
to protect public health.‖6 The Declaration also gives the developing nations
the "right to protect public health and, in particular, to promote access to
medicines for all.‖ In addition, the Declaration benefits the developing
countries by extending the deadline for enacting the TRIPS provisions.
Thus, TRIPS, as modified by the Doha Declaration, now provides
safeguards for generic drug manufacturers to produce cheaper and
5
Heimel, supra note 7, at 450.
6
World Trade Organization, Ministerial Declaration on the TRIPS Agreement and Public
Health of 14 November 2001, WT/MIN/(01)/DEC/2, 41 I.L.M. 755 (2002), available at
www. wto.orglenglish/thewto e/minist e/min0le/mindecltripse.pdf [hereinafter Doha
Declaration].
accessible medicines. However, the latest CAFTA Agreement provides for

stricter intellectual property provisions that would limit the public health
commitments set forth in the Doha Declaration and foster the HIV/AIDS
epidemic in Central America and the Dominican Republic.
On the other hand, proponents of CAFTA also have something interesting to
say. Terry McGraw, Chairman, President and CEO of The McGraw- Hill
Companies, testified before the Full Committee of the House of Ways and
Means that CAFTA will benefit the U.S. markets and advance the
competitiveness of the CAFTA signatories' industries and the development
of a stronger, more stable hemisphere.7 He further stated that CAFTA is the
next logical step to promote stability and democracy in the Central
American region and is a symbol of U.S. support and engagement in open
international markets. McGraw also testified that CAFTA's strong
intellectual property rules are critical to promote innovation and new
research. Though the CAFTA Agreement may promote better research and
development in the pharmaceutical industry, the consequences are
detrimental to the participating nations' public health.
Specifically in the pharmaceutical industry, CAFTA proponents support the
free trade agreement for many reasons. The major pharmaceutical
companies (commonly known as Pharma) believe that they should be
rewarded for innovation and the risk-taking efforts in researching and
developing the essential medicines because the research is quite expensive
and very time-consuming. Furthermore, drug companies believe that patent
protections are necessary for the company to recoup the cost of investment
for the innovation of new drugs.8
7
Terry McGraw, Chairman, Testimony Before the Full Committee of the House of Ways
and Means, (Apr. 21, 2005), available at
http://waysandmeans.house.gov/hearings.asp?formmode= view&id=2608.
8
Shanker A. Singham, Competition Policy and the Stimulation of Innovation: TRIPS and
the Interface Between Competition and Patent Protection in the Pharmaceutical Industry, 26
BROOK. J. INT'L L. 363, 365 (2000).
CAFTA proponents put forward the argument that the generic drug
companies getting a free ride are detrimental in many levels. Because they
cannot provide the upfront expenditures for research and development,
generic drug manufacturers "piggy back" on Pharma companies by relying
on Pharma's costly test data. As a result, the generic drug companies do not
have to repeat the expensive and time-consuming research in developing the
essential drugs. Thus, these manufacturers could produce the same drugs at
a lower cost for patients in need.
But proponents of CAFTA claim that it would be unfair to allow generic
drug companies to obtain a free ride and use the pharmaceutical companies'
test data in developing cheaper medicines. Moreover, if generic drug
companies can easily copy the products of drug research, the economic
incentive to conduct new drug research is greatly diminished.
Essential drugs are not just another consumer product but a human right,
and that patients are injured by patents. After comparing the provisions of
the CAFTA and TRIPS
Agreement, one sees that CAFTA would extend the monopoly rights of
pharmaceutical companies, delaying or limiting the introduction of generic
competition. "According to medical humanitarian groups such as Oxfam
and MSF, CAFTA's intellectual property protections will give monopoly-
like status to high-priced, brand-name drugs in poor markets, potentially
killing off generics" in Central America and the Dominican Republic. Patent
protection is supposed to reward innovation, but stricter intellectual property
protections can oust other competitors and eventually reduce innovation,
which contradicts the core purpose for intellectual property protections in
the first place. Additionally, there may be enough incentives already for
drug research and development that CAFTA is just excessive. The
government may offer research grants, tax benefits, public-funded research,
etc.9 At least these big drug companies should consider these incentives for
research and development. Patent protections through the strict CAFTA
provisions should not be the only alternative to fund their expensive
research and development. Even if drug companies do not overstate the
need for more rewards, society should accept less innovation to distribute
drugs to poor people. Also, to protect the big pharmaceutical companies,
five years of market exclusivity may be reasonable to compensate for their
data testing. Better quality drugs and research of the essential medicines are
necessary. But once a drug is approved and protected for at least five years,
the drug testing data should be made available for the generic drug
companies to develop affordable drugs for the poor.
CONTINUING ON THE LIMITS OF PATENT RIGHTS

The moral justification of the patent rights comes from two primarily
claims:
(1). The first argument is the fairness or justice argument which says that
those who spend time and money on developing a particular product or an
expression of an idea deserves a chance to receive compensation if their
product is useful and beneficial to others who are willing to pay for it.
(2). the second part of the argument is based on consequences. It states that
unless developers are allowed a period during which to recoup their
investment and make a profit, the incentive to produce new products
beneficial to the society will be greatly reduced.
Both these arguments serve as the manifold arguments of the
pharmaceutical industry and are mainly used by them against their critics.
These arguments do have weight in them, but what they lack is a proper
dialect with their critics.
9
Jessica J. Fayerman, Comment, The Spirit of TRIPS and the Importation of Medicines
Made Under Compulsory License After the August 2003 TRIPS Council Agreement, 25
Nw. J. INT'L L. & Bus. 257, 275 (2004).
Taking one step further, the industry then make and use laws to protect their
interest and serve them with profit so that they can develop new medicines.
Thus they defend their techniques to extend the time before which generic
drugs can be introduced, to extend patent protection on an international
level through institutions such as the WTO, to produce me-too drugs or
drugs which are only marginally different from the existing drugs rather
than concentrating on the breakthrough drugs. Along with all these, the
industry also conducts give away programs so as to appear moral and
ethical.
On the other hand, the moral analysts argue on the point that access to
health care and life saving treatments and medicines is the basic moral duty
of the pharmaceutical industry and the industry is not able to serve that. This
lack of dialogue between the two sides results in extremists in both the sides
which weakens each of their claims. The lack of communication arises
because both the sides speak different languages. The moral analysts speak
in terms of morality and ethics. On the other hand, the industry speaks the
language of law and economics. What is needed is a proper dialogue, a
moral justification. The giveaway programs are just the social responsibility
of the pharmaceutical industry; it cannot be the moral backbone of their
actions. Also, it is difficult for any government to represent both the
consumer and the industry, and the public‘s trust in the government is
already weakened when that industry is pharmaceutical industry, which is
alleged to be the biggest lobbying group in any country.
THE POLITICS OF FDA
U.S. Food and Drug Administration (FDA) drug review bears a structural
similarity to many decisions made by other regulatory agencies: high
uncertainty, low reversibility, avoidance of observable error, and high
political stakes that induce lobbying by interested parties. To use any new
pharmaceutical product, the patient must secure the approval of two agents:
a licensed physician and the U.S. Food and Drug Administration (FDA).
FDA plays a major and important role in forming the pharmaceutical
industry in its entirety: the past, the present and the future. The agency‘s
drug review decisions are essentially final (contesting them is extremely
difficult and costly) and immensely consequential (regulators in other
nations frequently cue off of the FDA‘s decisions). If the FDA so chooses, it
can materially impede the flow of new products to the pharmaceutical
marketplace or it can help accelerate that flow. The FDA is often alleged to
be involved with the Big Pharma so as to generate and maximize their
profits. This claim has never been countered by the FDA. Not even a single
statement or any justification has been given by the FDA contrary to this
claim. FDA behaves in ways that enhance its reputation for protecting
consumer safety and public health. As gauged by public opinion polls, the
FDA remains one of the most popular agencies in government, regularly
securing 70 percent or greater ―approval‖ of its performance among
sampled respondents. Buttressing this popularity are powerful symbolic
lessons of history: The FDA is widely credited with saving thousands of
American lives in its response to the sulfanilamide tragedy of 1937 and the
thalidomide scandal of 1959–1961. Congress dramatically strengthened
pharmaceutical regulations after each of these events. In short, whether or
not the agency deserves it, the FDA clearly possesses a reputation for
protecting public health and consumer safety.
This reputation did not arise by accident but is the result of refined
bureaucratic strategies. FDA officials have labored for years to craft and
guard their organizational legitimacy. They have done so through frequent
contact with their various constituents: attending professional meetings;
giving lectures to ensure that the FDA‘s perspective on a given issue is
heard; and cultivating the advice of academic and medical scientists,
particularly on FDA advisory committees. Every time the FDA reviews a

new drug, it ―invests‖ (takes a chance with) its reputation. There are three
critical aspects of this decision. These are inherent uncertainty, asymmetric
observation of error and low reputation reversal rate. It can be taken for a
fact that the FDA works for its reputation rather than anything else. A.
Schmidt states that, ―In all of the FDA‘s history, I am unable to find a single
instance where a Congressional committee investigated the failure of FDA
to approve a new drug. But, the times when hearings have been held to
criticize our approval of new drugs have been so frequent that we aren‘t able
to count them… The message to FDA staff could not be clearer. Whenever
a controversy over a new drug is resolved by its approval, the Agency and
the individuals involved likely will be investigated. Whenever such a drug is
disapproved, no inquiry will be made.‖10
All these aspects not only question the intention of FDA but also make it an
institution to be feared by the public. If a person is uncertain about the food
and drug he is administered, it is a serious allegation and discontent against
the state and the FDA must respond immediately.
CONCLUSION
It can be stated for a fact that there is something wrong in the way the FDA
and the pharmaceutical industry operates. There are many debates going on
in the medical world, some covered in this article, some left out and some
yet to be known. The primary concern of the state must be finding out a
solution to the same and that too in a limited time period. These debates
concern themselves with millions of lives and a wrong step may lead to
thousands of deaths. It is high time to respond. The sovereignty of the state
10
A. Schmidt, ―The FDA Today: Critics, Congress, and Consumerism‖ (Speech given at
the National Press Club, Washington, D.C., 29 October 1974), quoted in H.
Grabowski, Drug Regulation and Innovation (Washington: AEI Press, 1976), 76
is well preserved if it is popular sovereignty. But it seems that the FDA is

working on the principles of dynastic sovereignty. With such an outlook,
humanitarian movements and agitations will uproar in the society creating
further discontent. What is needed is a strong stable solution, or atleast a
proper dialect with the other side. It is high time to respond.
REFERENCES
1. A. Schmidt, ―The FDA Today: Critics, Congress, and Consumerism‖ (Speech given at
the National Press Club, Washington, D.C., 29 October 1974), quoted in H.
Grabowski, Drug Regulation and Innovation (Washington: AEI Press, 1976), 76.
2. www. fda.gov.
3. Daniel P. Carpenter, The Political Economy Of FDA Drug Review: Processing,
Politics, And Lessons For Policy, Health Aff January 2004 vol. 23 no. 1 52-63.
4. Christine A. Chung, A Cry For Cheap Drugs: CAFTA'S Inflexible Intellectual Property
Protections Create an Ominous Impact on Life- Saving Medicines, 13 Sw. J. L. &
Trade Am. 171 2006-2007.
5. Maxwell J. Mehlman, Rationing Expensive Life-Saving Treatment,1985 Wis. L. Rev.
239 1985.
6. Richard T. De George, Intellectual Property and Pharmaceutical Drugs: An Ethical
Analysis, Business Ethics Quarterly, Vol. 15, No. 4 (Oct 2005), pp. 549-575.
7. Ian Maitland, Priceless Goods, How should Life Saving drugs be priced? , Business
Ethics Quarterly, Vol. 12, No. 4, Health Care and Business Ethics, (Oct.2002), pp. 451-
480.
8. Michael Givel, Phillip Morris‘s FDA Gambit: Good for Public Health? , Journal of
Public Health Policy, Vol. 26, No. 4, (2005), pp. 450-468.
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Effective? , The Journal of Economic Perspectives, Vol. 22, No. 1, (Winter 2008), pp.
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the Hatch-Waxman and Sherman Acts to the Pharmaceutical Industry and the
Detrimental Effects to Future Innovation in Order to Achieve Current Savings for
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(2005).
GLOBAL INTERNET CENSORSHIP

AND THE NEED FOR COMPREHENSIVE REGULATORY
MECHANISM
S.L.Sriram*
Introduction
With global Internet penetration reaching nearly 36% across the world 1, the
internet is now used by one out of every three persons. The internet, to put it
simply, is a large network of interconnected computers. Large enough that
one in three people are connected to the network. A direct by-product of the
internet is the creation of contemporary forms of communication, which we
will broadly categorise as ‗Social Media‘. Social Media revolves around
user generated content in interactive platforms allowing the kind of freedom
that traditional forms of real and virtual media lack.
Social media platforms can be divided on the basis of their content; Blogs
(BlogSpot), micro-blogs (Twitter), content communities (YouTube),
collaborative information (Wikipedia) etc. Most social media platforms like
Facebook and Twitter rely on their highly interactive nature to attract a large
number of internet users who in turn attract advertisers, thus driving up
advertising revenues for the sites. And given the large number of users,
many users advertise their own businesses to a customized consumer base,
for direct and immediate response. Thus, social media platforms have
become hubs of economic activity as well, while still being a place for
people to interact with each other. This small fact has huge implications.
Social networking cannot be dismissed as a mere technological fad.
Interpersonal communication on the internet transcends geo-political and
* Author is a Second Year BA.LLB student in University School of Law and Legal
Studies, Guru Gobind Singh Indraprastha University, Delhi.
1
World Bank. (n.d.). Internet users (per 100 people). Retrieved from:
http://data.worldbank.org/indicator/IT.NET.USER.P2/countries/1W?display=default
[Accessed: 29 Nov 2013].
geo-cultural borders. In a way, the Internet has given birth to a global

culture that may be influenced by localized habits, but largely follows a
common linguistic model.
The internet allows unrestrained freedom to anybody who wants to express
themselves, and is a hub for thoughts and ideas to flow freely. Anybody on
the internet can say anything they wish to, and believe to be true. And if
people can be influenced to buy products, they can be influenced by
ideologies and beliefs too, if convincingly put across.
Political Impact
Social media is built upon the premise of direct and personal

communication. Traditionally, politicians rely on their oratorical skills and
door-to-door campaigning, to keep in touch with the general public and are
now switching to an easier and more convenient means: Social media.
Political campaigns across the worlds now rely on social media platforms to
advertise themselves and attack their opponents in equal measure.
Advertising on these platforms has a primary advantage that most other
forms of advertising cannot offer; the power to tailor the audience for any
particular ad, instead of the other way around, based on any number of
criteria, including age, gender, region etc.
In the recent past, the growing impact of social media on politics across the
world has garnered increasing attention from various researchers and
scholars. In a massive study that had a sample of 61 million people
undertaken in 2012, using the Barack Obama re-election campaign, the
researchers concluded that online political mobilisation works.2 The study
was conducted on three groups of people on the online platform Facebook;
one group was shown constant messages asking them to vote, and a list of
2
Robert M. Bond, Christopher J. Fariss, Jason J. Jones, Adam D. I. Kramer, Cameron
Marlow, Jaime E. Settle & James H. Fowler (2012). A 61-million-person experiment in
social influence and political mobilization. Nature. 489, 295–298. doi:10.1038/nature11421
friends who had already voted, one group was shown messages suggesting
them to vote, without the list of friends who had voted while the third group
was shown no political message at all. Then, the electoral data was studied
using publicly available records and it was found that the data suggested
that the tactics employed directly increased voter turnout by as much as
60,000 voters and indirectly through social contagion another 2,80,000
voters, leading to a total of 3,40,000 voters who had voted due to the
influence of a single social networking site. This is a significant finding,
because it shows how effective a viral campaign on Facebook can be, on
influencing and inducing people to participate in a something. This also
shows how influential the behaviour of online peers can be. The group that
was shown the list of friends who had voted produced a larger number of
people who voted.
The Micro-blogging website Twitter, has emerged as the best place to study
online political reverberations because of its unique ‗hash-tag system‘ which
makes identifying clusters of data with the same meaning, tone or message
easier. The online world emulates the real world in all ways possible and the
same holds true for spheres of political interest. In fact, the clashes between
political fanatics become much more vicious online where it is not
necessary to reveal one‘s identity to express or attack a statement. In the
conclusion of an extensive study on the behaviour of Twitter users with
strong political ideologies and clear idea of party orientation3, it is stated
that ―politically motivated individuals provoke interaction by injecting
partisan content into information streams whose primary audience consists
of ideologically opposed users.‖ In other words, people using social media
often resort to goading other members online into a clash of beliefs. Hence,
3
M. D. Conover, J. Ratkiewicz, M. Francisco, B. Gonc¸alves, A. Flammini & F. Menczer
(2011). Political Polarization on Twitter. Retrieved from
http://truthy.indiana.edu/site_media/pdfs/conover_icwsm2011_polarization.pdf
it is but natural that political entities take advantage of this phenomenon and
use it for their advantage.
Election campaigns in most countries with internet access rely on internet
activism, especially on social media to help gain the support of a larger vote
bank. In India, Narendra Modi‘s successful Prime Ministerial campaign
emulated the Barack Obama re-election campaign. Bharatiya Janata Party
has been exceptionally clever at handling his public image through the
medium of social media. Online presence of a political candidate is all the
more important in the Indian context because of the mud-slinging prevalent
in Indian politics. Clearing one‘s name goes a long way in influencing
skeptical voters, as does tarnishing the image and reputation of another.
Modi has employed some of India‘s richest IT geniuses, who amassed
wealth during the ‗dotcom rush‘ in the 90s. Modi has been at the receiving
end of backlash for his alleged involvement in the inducement of riots in
Gujarat in 2002, which persists as a dark blot on his public image.
Narendra Modi is not the only politician to join the social media
bandwagon. In fact, most prominent political parties now have dedicated ‗IT
Cells‘ to handle their public image online. The online vote bank in India is
large, with the number of total Facebook users in India set to surpass that of
America in 2014-15 4. The Election Commission in India seems to be
floundering as it struggles to keep up with the advent of social media and
newer forms of campaigning. For instance, election campaigning has to stop
48 hours before elections. Is the Election Commission expected to monitor
every popular social media outlet for 48 hours, searching for tweets or
Facebook posts that may amount to campaigning? With the amount of
money being spent on online advertising and campaigning by political
parties, the Election Commission in India has announced that it will be
4
Harjani, A. (2012, May 16). India Set to Overtake US as Facebook‘s Largest Market.
Retrieved from http://www.cnbc.com/id/47441565
closely monitoring online expenditure by candidates to see if the election

code of conduct is followed.5
What differentiates social media from more traditional forms of media is the
freedom it is accorded. The Italian case clearly highlights this. Italy is a
country with strong democratic roots. However, most forms of traditional
Italian media are state controlled. Widespread internet usage spread through
Italy after 2000 and Italy has held three elections since then. In the 2013
elections, the two-party coalition that had been incumbent since 1994 was
overthrown by a new comer party, the 5 Star Movement (M5S). The victory
of the M5S party in the election has been directly correlated to increased
broadband availability and the ability to express discontent and form like-
minded groups online.6 The high speed communication the internet
facilitates and social media takes advantage of, is a very important factor in
deciding the elections in any democratic country.
Online Dissent
While the advent of social media has helped revolutionize how

Governments are formed, it has helped bring down Governments as well.
All the cases we have seen so far have been democracies. This is because of
the direct causal relationship that can be observed in a situation where
democratic elections are influenced by enthusiastic and voluble ‗netizens‘
(citizens of the online world) and virtual political campaigns. In countries
without democracies, or flawed democracies, there always exists a growing
discontent against the restrictions on freedom and personal rights. This
dissent is expressed on social media forums and slowly gathers steam until
it can snowball into a movement that affects millions of people in the real
5
Srivastava, Rajiv. (2013, October 10). Politicians' use of social media on Election
Commission's scanner. Times of India. Retrieved from www.timesofindia.indiatimes.com
6
Campante, F, Durante, R, and Sobbrio F (2013), ―Politics 2.0.: The Multifaceted Effect of
Broadband Internet on Political Participation‖, NBER Working Paper 19029.
world. Such a movement was observed in the Tahrir Square protests in

Egypt, which helped overthrow a regime.
Five people anonymously administered a Facebook page, communicating
over Google‘s e-mail system (which doesn‘t allow outsiders to trace a mail
back to the sender‘s IP address) effectively avoiding police detection. A
Facebook Event page was created, calling for a protest movement on
January 25th, which became the first day of the revolution. It showcased the
astounding impact of a networking website, where increased mobilization
was possible, where events and locations could be set up as decoys-only to
be changed later at a moment‘s notice- where there were no boundaries
limiting who could access the information being given out. With the
backdrop of unemployment, corruption and human rights abuse, the website
acted as a critical component in the facilitation of the movement in Egypt. It
was found that over 52% of the participants in the Tahrir Square movement
in Egypt which saw approximately 2 million people protesting to overthrow
the regime of President Hosni Mubarak were there directly because of what
they had heard on Facebook7. It was observed that even if other factors were
controlled, social media greatly increased the likelihood of a protestor
attending the first day of the protests.The introduction of Facebook in
Arabic in 2009 helped step up the efforts to a higher level. The Tahrir
Square protests were the result of a slow buildup of tension in both the real
world and online. Without the involvement of social media, it is possible
that the turnout at the protests may not have been large enough to draw
global attention, like it did.
The case of Anthony Weiner is a classic example of how social media can
make or break a political career. Anthony Weiner is an American politician,
whose political career was destroyed by a ‗sexting‘ (sexual texting) scandal
7
Tufekci, Z. and Wilson, C. (2012), Social Media and the Decision to Participate in
Political Protest: Observations From Tahrir Square. Journal of Communication, 62: 363–
379. doi: 10.1111/j.1460-2466.2012.01629.x
after he admitted to having sent sexually explicit images to over 9 women

via popular social networking sites. Weiner was a member of the New York
City Council for 7 years, a congressional aide for 6 years and in running for
Mayor of New York in 2005, before resigning from Congress in 2011 after
it was found that he had been sending sexually explicit images to various
women on Twitter. Weiner ran for Mayor again in 2013 but got caught in
yet another sex scandal, and the uproar caused on the internet led to an
extreme fall in support, with him getting merely 5% of the total votes in the
mayoral primary.
This goes on to show that in the virtual world, information is power. The
WikiLeaks incident is common knowledge and an apt example of how
powerful information can be in the online world. Spearheaded by Julian
Assange, the movement aimed at leaking confidential and highly
controversial Government documents across the world led to an outcry from
Government authorities who were helpless, but gained sympathy from the
citizens. Just as the scandal seemed to fade away from public memory, a
former CIA employee, Edward Snowden released over 2,00,000
confidential documents that revealed that the NSA was spying on innocent
citizens in an attempt to control terrorism. Interestingly, Snowden has been
termed a hero by citizens and a traitor by the Government. Internet users
value their privacy and are naturally not comfortable with revealing
personal data which can be used to glean personal information.8 But privacy
on the internet has become somewhat of a rare commodity, with authorities
across the world increasingly resorting to restricting online freedom for
various causes.
8
Bilogrevic, Igor; Jadliwala, Murtuza; Lam, Istvan; Aad, Imad, Ginzboorg, Philip; Niemi,
Valtteri; Bindschaedler, Laurent; Hubaux, Jean-Pierre. Big Brother Knows Your Friends:
On Privacy of Social Communities in Pervasive Networks. Pervasive Computing Lecture
Notes in Computer Science, 2012, Vol. 7319, 370-387. doi: 10.1007/978-3-642-31205-
2_23
This is owed to the fact that the Government and its citizens may not have
the same conceptions of online freedom. Leaks of confidential documents
are seen as the next step in the creation of a completely transparent system
of governance, while the Government only sees such leaks as threat to
national security. The important question here, however is whether the
countries of the world are equipped to deal with evolving threats posed by
people with talents like Snowden.
Global Policies on Internet
Censorship and propaganda serve as remarkable equipment to provide

governments with ability to control the mindsets of the population on an
incomprehensibly large scale. The former involves keeping under lock and
key the materials that have the potential to incite rebellions among the
people, while the latter makes use of available means of broadcasting
information, to stimulate popular opinions that adhere to the ideas found
desirable by the governments in power.
The Middle Eastern region has been subjected to some of the most
oppressive regimes, which have taken innumerable measures to clamp down
on free speech over the internet. Turkmenistan, Syria, etc being Islamic
countries, the question has been raised whether religious conservatism is a
cause of the increasing degree of internet censorship. The 2013 World
Freedom Press Index, published by Reporters Without borders9, ranked Iran
as 174th out of 179 countries, while Syria was ranked 176 and Turkmenistan
at 177. The indicator can be broken down by region, producing scores from
0 to 100, where 0 represents the country‘s total respect for media and press
freedom. While Europe has a score of 17.5, the Middle East and North
African region comes last, producing a score of 48.5, despite the revolutions
of the Arab Springs.
9
Reporters Without Borders, World Press Freedom Index - 2013, 2013, available at:
http://www.refworld.org/docid/5108f621e.html [accessed 23 July 2013]
While broadly examining the results, it may appear at face value that
religious conservatism is the deciding factor for internet censorship. And
while it may well have some bearing, it cannot be stated as the conclusive
factor. Occupying the last position as 179th is Eritrea, which has a
predominantly Islamic population, but also a considerable Christian
populace. North Korea, at 178th position, has a mainly irreligious
demographic, with a mix of religions including Buddhism and Christianity.
Similarly, China has no nominal major religion, while Cuba has a Christian
majority population. This stands as an indication that the connection
between the presence of a particular religion and media censorship is, at
best, a tenuous one.
What then, is the cause of restriction of online freedom? Most of the
countries in the Middle Eastern region have had decades of authoritarian
and military rule, with the institution of democracy being introduced for the
first time in decades, in countries like Tunisia and Libya. Political
ideologies and institutions thus share a clear relationship with censorship of
the media in a country.
Russian President Putin is set to decide a radical new policy on isolating the
Russian Internet from the ‗Global Internet‘ in case of an emergency10 in an
attempt to decrease dependence on American technology. The irony of an
internet that is not connected to world is seemingly lost on the Russian
president. However, Russia will be far from the first nation to implement
such an arguably draconian law. China operates the world‘s most
sophisticated system of censorship (colloquially known as ‗The Great
Firewall‘), with certain potentially sensitive search terms being blocked on
the internet. One prominent example is that of Chen Guangcheng, a human
rights activist who escaped house arrest in eastern China, to the US embassy
10
Harding, L. (2014). Putin considers plan to unplug Russia from the internet 'in an
emergency'. [online] the Guardian. Available at:
http://www.theguardian.com/world/2014/sep/19/vladimir-putin-plan-unplug-russia-
internet-emergency-kremlin-moscow [Accessed 21 Sep. 2014].
in Beijing. Several keywords related to his case have been listed as banned
terms on the website Sina Weibo (similar to the micro-blogging site
Twitter). This acts as an effective way of keeping information from being
transferred through social media, leaving the vast majority of the population
unaware of the development of the situation. A similar situation arose in the
2011 Chinese pro-democracy protests (named the Jasmine Revolution)
where searches related to the word ‗jasmine‘ were blocked on Sina Weibo.
Though the movement was seen as a significant part of the impact of the
Arab Springs, tight control over the internet and media made mobilization
and call for mass protests much more difficult during the Jasmine
Revolution.
When the Government controls the medium of free speech, Social media is
rendered useless as an effective tool of communication, and is reduced to a
mere means of entertainment. Chinese cyber-dissidents include Nobel
peace prize winner Liu Xiaobo, dissident Liu Xianbin (sentenced to a 10-
year term for inciting subversion of the government) and lawyer Ni Yulan,
among others.
Governmental interference of the internet is not limited to the Middle East
and China alone. In a state where citizens are deprived of information
pertaining to the rest of the world, propaganda dictates content being
published and accessed over the internet. North Korea uses Red Star- its
own custom-built operating system, and Kwangmyong, the country‘s state-
run internet service provider. The system has been designed such that it is
easy for the state to control and modify it as necessary. The internet is
accessible only by the elites- academicians, scientists and politicians- while
the general population has no access to the web. From 2007 to 2013 North
Korea has been listed second last of the 177 countries (Eritrea occupying the
last place) in the World Freedom Press Index (2013).
Unsurprisingly, India ranks a measly 140th in the same Index, with
increasing violence against journalists being cited as one of the main
reasons for this ranking. In the recent past, media restrictions in India have
been on a steep incline. Erstwhile Indian Minister for Communications and
Information Technology, Mr.Kapil Sibal claimed to support complete online
freedom, while subtly slipping in hints about arbitrary censorship measures
for the sake of ―communal harmony‖11.
The Indian Legal Scenario
Laws in India regarding cybercrimes are still in a stage of infancy and are
vague at their best. Section 66A of the Information Technology Act (2000),
states ―Any person who sends, by means of a computer resource or a
communication device, — … any information that is grossly offensive or
has menacing character…. shall be punishable with imprisonment for a term
which may extend to three years and with fine.‖12 The term ―grossly
offensive‖ is open to interpretation by authorities. This poses a serious
threat to the freedom of expression online, as seen in an incident in Mumbai
where two young women were arrested for expressing their views about a
deceased politician on Facebook, and booked under Section 66A of the
Information Technology Act.
Ironically, misuse of social media has not been restricted to citizens.
Politicians have slowly begun to comprehend the immense power of a
strong social media presence and have started to employ dubious methods to
impress the online world and make them heard. In a recent undercover
operation conducted by a little known News Corporation, it was found that
various IT companies offered to help boost the public image of anyone
11
Sathe, G., & Agrawal, S. (2013, March 21).Internet governance is an oxymoron, says
Kapil Sibal. [online] Retrieved from:
http://www.livemint.com/Politics/Z7mTX6YrUDdH6lEs15im2L/Kapil-Sibal-allays-fears-
on-Internet-censorship.html [Accessed: 30 Nov 2013].
12
Information Technology Act (2000). Amended (2008).
willing to discreetly pay cash while maligning opponents at the same time.13
Services offered included:
1. Generation of fake followers on various social networking sites,
such as Facebook, Twitter and BlogSpot;
2. Deletion of negative comments/posts;
3. Negative publicity against opponents of the client;
4. Creation of fake profiles with Muslim names to show support of the
Muslim community
This leads to an important question: Should social media be accorded

complete and unbridled freedom, without any form of policing or control?
Ours is a country that has strong partisan factors deeply entrenched in
religious beliefs and notions. Social media platforms become an outlet for
pent up frustration in those who may not exhibit proper restraint of thought
and provoke irate responses. In the case of the recent Muzaffarnagar
communal clashes in Uttar Pradesh, a lawyer, Shehzad Poonawalla urged
the National Human Rights Commission to direct the department of
telecommunications to screen posts on social media that were inciting
violence. Poonawalla stated that his objective behind filing a petition was to
highlight how social media was being misused by bigoted persons with
separatist intentions.14 The Muzaffarnagar clashes were mainly attributed to
viral videos on YouTube, even though the authenticity of that claim is
debatable.
13
Cobrapost.(2013, November 28). Cobrapost represents ‗Operation Blue Virus‘: Press
Release. Cobrapost. Retrieved from http://www.cobrapost.com/index.php/news-
detail?nid=4024&cid=23
14
Tehelka. Muzaffarnagar Riots: Complaint Lodged Against Inflammatory Content On
Social Media.(2013, September 9). Tehelka. Retrieved from
http://www.tehelka.com/muzaffarnagar-riots-complaint-lodged-against-inflammatory-
content-on-social-media/ (Visited on 29 November 2013).
A large section of our population is still illiterate and rumors can run rife
and very often, violence is not the only result. Polio campaigns failed in
Muslim communities in 2006 because of a rumor that the polio vaccine
resulted in sterilization of the baby.
The lack of an established regulatory body for the Internet and other forms
of communication means the Police and Executive are given unbridled
authority in implementation of the IT Act 2000 with hardly any judicial
oversight. The inadequacy of the IT Act to properly regulate a global
behemoth like the Internet is nothing short of a hindrance in India‘s path as
a growing economy and superpower. As trade shifts to the online realm,
with companies like Flipkart and Amazon now dealing in billions of dollars,
the internet is no longer a plaything for youngsters. The massive influence
wielded by the virtual world on the real is no laughing matter. As the world
scrambles to check the influence of ISIS militants who have been converting
men and women across the world using nothing but social media.
Conclusion
The ability to move considerable amounts of information across vast

distances within a negligible period of time has formed, over the course of
the previous decades, the bedrock of our contemporary society. Lauded as
the greatest communication innovation this century has seen, abridgments to
the open freelance atmosphere of the Internet have been frequently
attempted by various governments, with different objectives as regards the
requirement of the degree and extent of censorship of the virtual world. The
roots of the internet lie in the function of its predecessor, which had been
designed with the intent to ensure communication in the event of a nuclear
attack, by compensating for ruined servers and telephone lines. The very
crux of the Internet lies in its ability to overcome such barriers. Irrespective
of the imposition of heavy censorship, it is inevitable that communication
will not be halted permanently.
It is hard not to resort to rhetoric while elucidating the massive role that
social media plays in our daily life. The internet is a tool which facilitates,
amongst many other things, interpersonal communication and exchange of
ideas, views and theories. It is this feature that makes the internet what it is.
To completely curtail freedom of expression in social media is to end social
media as we know it. However, a virtual world without any form of
regulatory authority whatsoever would be no different from the real world
without any restrictions imposed on people, for the safety of the general
public. Regulation is as necessary on the internet as it is on any other
commercial venue. E-commerce websites all require some minimal
regulation in order to function effectively. Original works published on the
internet have no reason to be exempt from the principles of intellectual
property law and copyright. The sharing of explicit images, child
pornography and other illegal content has to be monitored on the internet, as
it would be in real life.
The militant organization ISIS that thrives on ideological conversion has
been quick to adapt to social media requirements. It has been effectively
using social media sites and video games to capture the imagination of
vulnerable youngsters and teenagers in an unanticipated manner15. The
media wing of ISIS works eerily like a corporate Public Relations
department as it identifies the target audience and uses the most effective
means of communication, including but not limited to People from across
the world have fallen prey to this ideological warfare and ‗joined‘ the cause
of Jihad. This is a classic example of how uncensored content on the
internet can poison minds and incite violence if properly executed.
These factors demand some minimal regulatory body to intervene. While
the principle of freedom of expression has to be kept in mind, it is also
15
Shamah, D. (2014). Video games, Twitter tricks: How ISIS pulls in the kids. [online] The
Times of Israel. Available at: http://www.timesofisrael.com/video-games-twitter-tricks-
how-isis-pulls-in-the-kids-2/ [Accessed 21 Sep. 2014].
critical that one consider the necessity of monitoring hate speech and
bigoted opinions, the expression of which has become considerably easier
with the widespread use of the worldwide web. There is a vital distinction
between censorship and monitoring of offensive or obscene content. Where
one seeks to protect the sentiments of a particular group being targeted, the
other involves prohibiting content which may show a political group in an
unfavorable light, or act in any way as an impetus to starting a rebel
movement. It is this censorship that violates the basic freedom of the people,
by presenting to them a distorted view of the truth.
The effect of communication via the internet may have proved to be a boon
in many cases, but its detrimental effects under those circumstances cannot
be overlooked. As a consequence of the Egyptian revolutions, totalitarian
regimes in the region acted swiftly to block the free flow of information
through the web, using several means, such as slowing down the internet
speed, blocking certain topics or websites which were deemed to be
controversial, as well as carrying out surveillance and monitoring internet
usage. There were also instances of deaths of activists, such as Zakariya
Rashid Hassan, who died in custody in Bahrain, a week after being arrested
for disseminating false news, and calling for the overthrow of the
government on online forums. Politically motivated surveillance,
accompanied by draconian punishments meted out to bloggers and activists
pose considerable danger to freedom of an individual on the internet.
The importance of government intervention, however, is not to be
overlooked or underestimated. Without a regulatory authority, the bigoted
and the ignorant would find an ideal platform to propound their views,
alienating separate communities on a superficial basis. There is a distinction
drawn here between activities that are immoral, and ones that are illegal.
While conceptions of immorality are open to subjective interpretations and
definitions tend to differ, illegality of a subject remains relatively constant
with time. Given the undeniable advent of the internet throughout the world,
it is inevitable that governments would attempt to impose their own views to

the rest of the society through this platform. This may go beyond a mere
expression of opinion, and lead to imposition of several regulations, which
would render the internet, as a tool of mass communication and a place of
freedom of speech, very early nonexistent. It becomes critical to rethink
various approaches to censorship, and to allow the web to expand and grow
of its accord. After all, the Internet is a virtual world that emulates the real
world in more ways than one.
INTELLECTUAL PROPERTY RIGHTS VERSUS RIGHT

TO HEALTH : INDIA’S STAND
A.Ashwin Kumar*
Niharika Kumari**
Introduction
In India, intellectual property laws are made in such a way that, it strikes a
perfect balance between the public interest and interest of the right owners.
The Indian constitution in its Article 300A, guarantees that no person shall
be deprived of property, save by authority of law. The purview of this article
also extends to the intellectual property rights. Blackstone in his
commentaries says that, ―When a man by the exertion of his rational powers
has produced an original work, he seems to have clearly a right to dispose of
that identical work as he pleases and any attempt to vary the disposition he
has made of it appears to be an invasion of that right.‖1 True his words,
India through its legislation, have guaranteed every citizen, the rights over
his mind‘s product.
However, every right has its own limit. A person‘s right ceases to exist,
when it infringes the right of another person. Therefore rights cannot be
exclusive at all circumstances. Even fundamental rights in the constitution
have its own exceptions. Similarly, the intellectual property rights are given
exclusively unless it is against the interest of the public.
With regard to the patents, the World Intellectual Property Organization

defines it as an exclusive right granted for an invention, which is
* III year student, School of Law, Christ University, Bangalore

** III year student, School of Law, Christ University, Bangalore
1
Wheaton v. Peters www.bc.edu/bc_org/avp/cas/comm/free.../wheaton.html (last access
October 12, 2014).
a product or a process that provides, in general, a new way of doing

something, or offers a new technical solution to a problem. In consonance
with this, the Indian Patents Act provides for an exclusive right to the
patentees over their product subject to few conditions. An invention should
be novel, non-obvious and useful in order to get patented. The granting of
patents has various positive as well as negative implications in India. Since
the implementation of TRIPS agreement, the no of patents in India has
drastically increased. According to a report of Global intellectual Property
center - Annual inflows of FDI to India have increased significantly since
the early 1980s. The national expenditure on Research and Development
(R&D) in India increased from Rs. 7483.88 crores, in 1995-96 to Rs. 37777
crores in 2007-08.
Inspite of all these advantages, there are certain chances for misuse of the
laws related to patent rights. One such attempt was made by few
pharmaceutical companies for Ever greening its patent of drugs. Patent ever-
greening refers to a strategy of obtaining multiple patents that covers
various aspects of the same product. Even though it is not a formal concept
of patent law, patent owners utilize this process to extend their monopoly
privileges. Patents give exclusive rights to the companies to manufacture
and sell a particular product. It is a fundamental principle of patent law that
a patent monopoly can be granted inventions that are new, non-obvious and
useful and that have an industrial application. Often times, the pharma
industry change their patented drug slightly by converting it to a salt, adding
a ester or ether, making an isomer that does not in any way alter the efficacy
or biosorbtion of the drug. This new form of the same chemical is now
patented. This process called ever greening is exploited by pharma
companies to hold exclusive rights to manufacturing the drug several years

after the original patent has expired.2
Some examples include seeking subsequent patents on derivatives of

existing drugs, altering the mixture of isomers, identifying compounds with
the same molecular formula but different structural formulas, or patenting
methods of administration of an existing drug.
Ever greening strategies usually followed by the pharmaceutical industries

involve:
1. Redundant extensions and creations of ‗next generation drugs‘

which result in superfluous variation to a product and then patenting
it as a new application.
2. Prescription to over-the-counter (OTC) switch.
3. Exclusive partnerships with cream of generic drug players in the

market prior to drug patent expiry thus significantly enhancing the
brand value and interim earning royalties on the product.
4. Defensive pricing strategies practice wherein the innovator

companies decrease the price of the product in line with the generic
players for healthy competition and
5. Establishment of subsidiary units by respective innovator companies

in generic domain before the advent of rival generic players.3
However the Indian Patents Act of 2005 has a unique provision which
expressly serves has a check to the attempts made by the pharmaceutical
2
Athulaprabha Murthi, Compulsory Licensing – does it affect the pharma companies?,
available at : http://www.indiabioscience.org/articles/compulsory-licensing-%E2%80%93-
does-it-affect-pharma-companies (Last access : 12th October, 2014).
3
Drug Patent Evergreening: An Overview, Available at:
http://blog.mmsholdings.com/blog/bid/86991/Drug-Patent-Evergreening-An-Overview ,
(last access : 12 Oct, 2014).
companies for ever greening. The section 3(d) clearly states that, unless a
new form of an existing substance depicted increased efficacy, it was not
patentable. If it does demonstrate increased efficacy, then it is treated as an
altogether ―new substance‖.
The ―mere new use‖ of a known compound cannot be patented. The very
objective of having Section 3(d) as an amendment clause to Indian Patent
Act was to prevent the ―ever-greening‖ of patent. Section 3(d) is as follows:
―the mere discovery of a new form of a known substance which does not
result in the enhancement of the known efficacy of that substance or the
mere discovery of any new property or new use for a known substance or of
the mere use of a known process, machine or apparatus unless such known
process results in a new product or employs at least one new reactant.
Explanation.—For the purposes of this clause, salts, esters, ethers,

polymorphs, metabolites, pure form, particle size, isomers, mixtures of
isomers, complexes, combinations and other derivatives of known substance
shall be considered to be the same substance, unless they differ significantly
in properties with regard to efficacy.‖
In the famous case of Novartis4, when a pharmaceutical company tried to

patent an anti-cancer drug, the court refused to give the rights on the
grounds that there is no substantiate increase in ―efficacy‖. The hon‘ble
Supreme Court wisely interpreted the meaning of ―efficacy‖ in Section 3(d).
It said that the new form of a drug must demonstrate an improvement in its
therapeutic effect or curative property as compared to the old form in order
to secure a patent. Novartis offered evidence that the beta crystalline form
differed regarding certain properties relating to production and storage (e.g.,
heat stability). The Court held that these properties may be important from
4
Novartis AG vs. Union of India (UOI) and Ors, AIR2013SC1311
storage point of view, but would not be relevant to show ―enhanced

therapeutic efficacy‖. .
When the same petitioner moved the hon‘ble High Court of Madras, It was
contended that the section 3(d) is unconstitutional and against the policies of
TRIPS agreement. The hon‘ble High Court of Madras while holding that
section 3(d) is constitutional, observed that the said section is in consonance
with TRIPS agreement by virtue of the Article 4 and 5 of the Doha
declaration, which says ―The TRIPS Agreement does not and should not
prevent members from taking measures to protect public health. … [W]e
affirm that the Agreement can and should be interpreted and implemented in
a manner supportive of WTO Members' right to protect public health and, in
particular, to promote access to medicines for all.‖
Not only India, many developed countries around the world has laws
prohibiting the practice of Evergreening. Australian law includes safeguards
against evergreening, by introducing penalties for such activities in Section
26C and 26D of Australia Patent Act 1990 and a mechanism for damages to
be paid to the government for proven ever greening practices.5
Article 18.9.4 of the Republic of Korea-United States Free Trade

Agreement (KORUSFTA) has been specifically drafted to permit the
establishment of pharmaceutical patent ―anti-evergreening‖ oversight
agency.6
As rightly said by the Hon‘ble Supreme Court, There is in fact nothing new
about such a standard. This was the approach followed by the US Patent
Office up until a case decided by the Court of Appeals for the Federal
Circuit, In re Brana, in 1995. Today, the Patent Office and Federal Circuit
5
Drug Patent Evergreening: An Overview, Available at :
http://blog.mmsholdings.com/blog/bid/86991/Drug-Patent-Evergreening-An-Overview ,
(last access : 12 Oct, 2014).
6
ibid
will approve patents for very minor modifications, supporting the practice
known as ―evergreening‖. This is a very expensive proposition for US
consumers because it allows the manufacturers to market and sell higher-
priced patent-protected versions of their popular drugs.7
It is pertinent to say that, no democratic country will act against the interest
of the public. In countries like, US, the people‘s affordability has increased
drastically in the late 90‘s which paved way for the laws supporting ever
greening. Now every single modification in the drug is patented, hence the
amount of patented products is becoming innumerable. For a developing
country like India, it may take few decades to shift to that fashion. In the
meanwhile, the public health of the vulnerable, poor people should be given
more concern than anything else. But again there‘s a point to be noted that,
if all medicines were to be made generic under the pretext of access to
medicines then ultimately at a particular time point there will be no
innovation, subsequent to which the sufferers will be people at large. Hence
the ideal situation would be to strike a perfect balance between the public
and private interests as mentioned above. It is also pertinent to say that, The
U.S model is concerned about the quantity of patents their citizens hold,
unlike India, where quality is given more weight.8
Compulsory licensing:
This concern about the public health is the main reason behind another land
mark Judgment in Indian history of intellectual property laws. The decision
in the case of Natco v. Bayor, which granted the first ever compulsory
7
Frederick Abbott , The Judgment In Novartis v. India: What The Supreme Court Of India
Said, Available at : http://www.ip-watch.org/2013/04/04/the-judgment-in-novartis-v-india-
what-the-supreme-court-of-india-said/ (Last access : 13 October, 2014
8
Dr. Dhanalakshmi Iyer, Analysis of Section 3(d) of Indian Patent Act, Available at :
http://www.ipfrontline.com/depts/article.aspx?id=26756&deptid=4 (Last access : 13
October, 2014)
license in India, had made global impact due to the unique stance taken by
the court. ,
IP laws in India have long made provision for the grant of a compulsory
license. The section 84 of the Patents Act, 1970 (Patents Act), is the
provision under Indian patent law that provides for the issue of a
compulsory license‘.
According to the World Trade Organization, Compulsory licensing is when

a government allows someone else to produce the patented product or
process without the consent of the patent owner. It is one of the flexibilities
on patent protection included in the WTO‘s agreement on intellectual
property — the TRIPS (Trade-Related Aspects of Intellectual Property
Rights) Agreement. Under the Indian Patents Act, a compulsory licence
may be granted after the expiration of three years of the grant of a patent, on
any of the following grounds:9
I. That the reasonable requirements of the public with respect to

the patented invention have not been satisfied; or
II. That the patented invention is not available to the public at a
reasonably affordable price; or
III. That the patented invention is not worked in the territory of India
In the case of Natco v. Bayor10, the appellant applied for a compulsory

license for selling the respondent‘s patented drug named Nexavar on the
grounds that, the patentee has failed to meet the requirements of the public
9
Shan Kohli ,A Small Step for Natco, a Giant Leap for Generic Drugs: India‘s first
Compulsory Licensing Application Filed, Available at : http://spicyip.com/2011/08/small-
step-for-natco-giant-leap-for.html ( Last access : 14 October , 2014)
10
Bayer Corporation v. Natco Pharma Ltd., Order No. 45/2013 (Intellectual Property
Appellate Board, Chennai), available at http://www.ipab.tn.nic.in/045-2013.html (Last
access : 13 October 2014)
and it is not available to the people at a reasonably affordable price. The

hon‘ble IPAB observed that, Nexavar was priced at 280,000 per month,
which is obviously not available to the public at a reasonable cost and
neither is it available to all patients who need the drug. Therefore, the court
held that, NATCO will now manufacture and sell the same drug at Rs 8800
per month and will also pay a royalty of 6% of its sales to Bayor.
A lot of countries have issued compulsory licenses for anti-competitive

misuse of IPRs by companies. According to a survey around 53 countries in
the world have given compulsory licenses after the comeuppance of TRIPS
agreement. Brazil, Thailand, Malaysia, South Africa, Kenya, Ecuador etc.
have issued compulsory licenses over the patent rights of AIDS drugs and
cancer drugs11. Once again in this case, majority of the developing countries
were in support of the grant of compulsory licensing while countries like
U.S are constantly criticizing this concept on the grounds that, it is would
decrease the incentive for innovators to invent. This argument can be
regarded as absolutely baseless. According to the TRIPS agreement)
Normally the person or company applying for a license must have tried to
negotiate a voluntary license with the patent holder on reasonable
commercial terms. Only if that fails compulsory license can be issued and it
is also necessary that the original patentee should receive necessary
remuneration. From a combined reading of TRIPS agreement and section 84
of Indian patents Act, makes it abundantly clear that the compulsory license
are granted only at rare circumstances when its largely demanded by the
public interest.
11
Aayush Sharma, Can Compulsory License (CL) Be A Legal Tool For Pharmaceutical
Industry? ‗An Overview Of The CL Under The Indian Pharma Industry, Available at :
http://www.mondaq.com/india/x/310726/Patent/Can+Compulsory+License+Cl+Be+A+Leg
al+Tool+For+Pharmaceutical+Industry+An+Overview+Of+The+Cl+Under+The+Indian+P
harma+Industry,(Last access : 13th October, 2014 )
Patents versus patients: right to property versus right to

health
Both the concepts of compulsory licensing and ever greening give rise to a
debate between the Public interest and the interest of pharmaceutical
companies. In other words, it is the debate between, patents versus
patients. The patent cliff is having a devastating impact on revenues as
some of the biggest earning drugs lose out to competitive generic companies
in India and other developing countries. This, and the pervading economic
gloom, is putting a squeeze on finances. With drugs typically taking 12 to
15 years to develop, costing perhaps a billion pounds – and with no
guarantee of success – beleaguered pharmaceutical companies are cutting
back on expensive and time-consuming R&D and diversifying into more
gainful areas. Without IP rights to reward innovation and provide some
measure of security in these tough times, pipelines may run dry.12
However, pharma companies are not the only ones to suffer from this
austerity. Governments are under increasing pressure to provide more cost-
effective and accessible health care, particularly in developing countries like
India with poor populations. In such circumstances, they can sometimes
decide to override IP in favour of encouraging competition and driving
down price.13
This debate can also be regarded as the right to property versus the right to
health. Here the right to property denotes the right of a patent owner to
enjoy all benefits arising out of it at the cost of the public health; while the
12
Nick Beckett, India's patents versus India's patients Available at :
http://www.pmlive.com/pharma_news/indias_patents_versus_indias_patients_459660 (Last
access : 13th October, 2014 )
13
Id.
right to health corresponds to the poor needy people‘s right to live at the
cost of the interest of patent owner. 14
India suffers from twin problems of high prices of patented medicines and
low access to generics i.e., non patented medicines. Due to variety of
reasons including poor public health facilities, and inadequate insurance
facilities, drug access is very low in India.
Article 21 casts an obligation on the State to safeguard the right to life of

every person, preservation of human life being of paramount importance.
The obligation of the State to ensure the creation and the sustaining of
conditions congenial to good health is cast by the Constitutional directives
contained in Articles 39(e),(f) , 42 and 47 in part IV of the Constitution of
India. Under Article 47, the State shall regard the raising of the level of
nutrition and standard of living of its people and improvement of public
health as among its primary duties.15
In the case of Vincent Panikurlangara V. Union of India16,‖ Article 21 of

the Constitution guarantees right to life and this Court have interpreted the
guarantee to cover a life with normal amenities ensuring good living which
include medical attention, life free from diseases and longevity up to normal
expectations.‖
The Supreme Court, in Paschim Banga Khet mazdoor Samity & ors v. State
of West Bengal & ors17, while widening the scope of art 21 and the
government‘s responsibility to provide medical aid to every person in the
country, held that in a welfare state, the primary duty of the government is
14
Id.
15
sudip chaudhari,The larger implications of the Novartis Glivec judgment, Available
at:http://infochangeindia.org/public-health/analysis/the-larger-implications-of-the-novartis-
glivec-judgment.html(Last access: 14th October, 2014)
16
1997 AIR 990
17
AIR1996 SC 2426
to secure the welfare of the people. Providing adequate medical facilities for
the people is an obligation undertaken by the government in a welfare state.
The government discharges this obligation by providing medical care to the
persons seeking to avail of those facilities. Article 21 imposes an obligation
on the state to safeguard the right to life of every person. Preservation of
human life is thus of paramount importance.
In the landmark judgement of CESC Ltd. vs. Subash Chandra Bose18, the
Supreme Court relied on international instruments and concluded that right
to health is a fundamental right. It went further and observed that health is
not merely absence of sickness: ―The term health implies more than an
absence of sickness. Medical care and health facilities not only protect
against sickness but also ensure stable manpower for economic
development. Facilities of health and medical care generate devotion and
dedication to give the workers‘ best, physically as well as mentally, in
productivity. It enables the worker to enjoy the fruit of his labor, to keep
him physically fit and mentally alert for leading a successful economic,
social and cultural life. The medical facilities are, therefore, part of social
security and like gilt edged security, it would yield immediate return in the
increased production or at any rate reduce absenteeism on grounds of
sickness, etc.
On perusal of these judicial opinions, it is very clear that, the right to health
has become an integral part of the Article 21 of Constitution. Affordable
drugs are an integral component of universal health care and accessible
health care in this view, when there is a conflict between the patentee‘s
rights and the public‘s right to live; it is obvious that the latter will prevail
over the former.
18
1992 AIR 573
Conclusion
India's efforts to preserve policy space so as to ensure access to medicines
for all, both in India and in developing countries more broadly, is under
threat because of an obscure provision that the EU is seeking in its pending
trade negotiations with India. Under the so-called investment clause,
foreign IP investors, like Novartis and Bayer, will be given rights to sue the
Indian government directly whenever their expectations of profit are
frustrated by government decisions and policies
Threats like this used to be theoretical, but the theoretical has now become
real. In November of 2012, Eli Lilly sued the government of Canada for
$100 million under NAFTA's investment chapter because Canada had
invalidated a patent on a medicine used to treatment attention deficit
disorders. The patent was invalidated pursuant to requirements in Canadian
patent law that an applicant must satisfy the promise of utility (in India
called industrial applicability) by disclosing evidence pointing to a claimed
benefit of the medical innovation.19
If Eli Lilly can file such a suit against Canada, with respect to its decision to
revoke a patent, what would prevent Novartis and Bayer to file claims
against India because it has adopted strong protections against ever greening
in section 3(d) of its Patents Act and allowed compulsory licensing in
section 84? In fact, these are exactly the kinds of claims that few major
international corporate law firms are urging companies to file under existing
investment clauses that India has ill-advisedly entered into.20
19
BROOK K. BAKER,A patent victory under threat, Available at:
http://www.thehindubusinessline.com/opinion/a-patent-victory-under-
threat/article4610739.ece, (last access : 14th October, 2014)
20
Id.
While these threatening factors are trying to discourage India‘s attempts to

balance IPR and Right to Health, India is staying importunate in this issue.
The concerns of the developed nations are not same as that of India. For a
developing nation like India, Considering the vast difference between the
economic statuses among people, it is impossible to keep the IPR policies in
par with the highly developed nations. However, India in recent days have
done few attempts to adopt cherishable policies followed in foreign nations.
A panel headed by Justice Prabha sridevan, has been formed recently by the
commerce and industry ministry to draft the National Intellectual property
(IPRs) policy. The panel will identify areas in IPRs where study needs to be
conducted and furnish recommendations in this regard. These things show
that, India is honestly trying to balance between Indian needs and
international obligations.
DOCTRINE OF STATE ACTION AND DEFINITION OF

STATE AS UNDER ART.12 OF THE CONSTITUTION
Roopal Tripathi*
Introduction
The Doctrine of State Action is the legal principal which was added in the
14th Amendment of the Constitution and it applies only to the state
government and the local government, it does not include private entities in
its sphere. Under the state action private parties outside of government do
not comply with procedural or substantive due process under the Fourteenth
Amendment. For example, the first amendment does not apply to private
schools because they are not part of state or local government. If we see the
historical framed Constitution, one can easily draw a conclusion that it was
considered as a remedy for any similar private infringements lay in the
common law of the time, as it was believed that the common law embodied
natural law principles.1 It is agreed that the Doctrine of State Action protects
the right of an individual liberty ―preserves an area of individual freedom by
limiting the reach of federal law and federal judicial power.‖2 action applies
to the substantive duo and the procedural due process concept The State
Action Doctrine applies only to the State Actors that is Government and
their subsidiaries and including the local bodies like Attorney General,
Governor and some other state actors for example; one cannot sue the
Honda Motor Company Ltd. for violating the substantive duo process, for
suing the such incorporation which does not come under ‗State‘ there is a
* Roopal Tripathi,4th year Student, Symbiosis Law School, NOIDA

1
Erwin Chemerinsky, ― Rethinking State Action”, (1985) 80 Nw. U. L. Rev. 502 at 511.
2 Lugar v. Edmondson Oil Co., 457 US 992 (1982).
different set of provisions which apply only to them but in order to prevail
on a fourteenth Amendment claim, one must be suing the Government.
In the example of campus speech where ―civility codes‖ an infringement on
the freedom of speech? It was held that the Stanford University being a
private university so the rules of university is such that it is not bound by 1st
and 14th Amendment whereas, Ohio University being state University OSU
so the rules of 1st and 14th applies to it and whether ‗civility code‘ is
applicable to the ‗state university‘ is a serious matter.
State of the Law

The doctrine of the sate action is based on the principle of the federalism
and because of this the doctrine shields the sovereign activities of the state
itself, including the actions of the state legislature, governor or a state
supreme court provided they are acting in the sovereign entities of the
Constitution. The doctrine of State Action even extends to the lower level
entities as well, licensing board and State regulatory commission provided
that these entities are acting within the delegation of authority from the
government and independent and with the sovereignty.
To assert the state action defence, the lower level entities must prove that
they used the delegation of authorities for the common interests of the state
rather than for their own benefit, they can prove by showing the alleged
anticompetitive state regulatory conduct:-
 Is in conformity with a ―clearly articulated‖ state policy.3
 It has been actively supervised by the state.4
In the first element, the word ―clear articulation‖ means that these entities of
the state may use anticompetitive mechanisms only if those mechanisms
operate because of a deliberate and intended state policy. Now the question
3
Erwin Chemerinsky, ―Rethinking State Action”, (1985) 80 Nw. U. L. Rev. 502.
4
Asheesh Agarwal, ―State Action Task Force‖, 2003 Chapter 1, pg. 8
is whether the State as sovereign clearly intends to displace competition in a

particular field with regulatory structure?
In Southern Motor Carriers, the Court find out that the State intended to
displace competition because the legislature created the regulatory schemes
to set trucking rates. In other cases, the Court pointed on the ―foreseeability‖
of the articulated mechanisms. In Omni, the State statute let cities regulate
the constructions of building and structures. The city used this statute to
restrict billboards. The Court held that the by giving authority to the city to
restrict the regulation of billboards the State has articulated the policy of
restricting the billboard competition.
The second element, ―active supervision‖ it ensures that the entities are
acting pursuant to the state policy and not according to their own private
interest, and the State‘s regulatory programme actually implements a
positive regulatory policy. To evaluate this element, Court must determine
―whether the State has exercised the sufficient independent judgement and
control so that the details‖ of the restraint ―have been established as a
product of deliberate intervention, not simply by agreement among the
private parties.‖ In general courts require that there should be active
supervision of entities when there is risk that the challenged conduct results
from the private actors pursuing their own interests rather than acting on the
interests of the state policy.
How Doctrine of State Action came in force in the Fourteenth

Amendment of the American Constitution?
The Doctrine of the State Action was first enunciated in the Civil Rights
Cases5 whereby, it has been said that the action which has been reserved by
the Fourteenth Amendment is the only action which is fairly said to be for
5
(109) US 3 (1883)
the States. ―The Amendment erects no shield against the private merely
private-conduct, however discriminately or wrongful.‖6
State Officers
The first interpretation of the State in the Fourteenth Amendment was given
in Ex-parte Virginia;7 it was assumed that the State acts through its
Legislative, Executive and the Judicial Authorities. This clearly mentions
that the:-
 Would be clearly violative of Constitutional protections.
 Executive agents carrying out legislative command would also fall
foul of the Constitutional protection.
 when the judiciary, either fails to afford due process or when the
judges lay down
Common-law; its action can be violative of the Constitutional
protection.
Hence, contrary to the Ex-parte Virginia case, where the legislature has
enacted the statue that provided for non-discrimination, in this case the
Court has found out that the requirements of the State Action is not met
when the legislature had provided for constitutional law.8 However
subsequent judgment was not followed in the Arrowsmith. The Arrowsmith
judgment was finally repudiated in Home Telephone and Telegraphic Co.
vs. Los Angeles wherein the Court relying on the principal-agent doctrine,
6
A Constitutional Forecast: Demise of the ―State Action‖ Limit on the Equal Protection
Guarantee‖, (1966) 66 Colum L. Rev. 855
7
100 US 310. The question that arose for consideration in this case was whether the action
of a county judge
in discriminating against colour persons in making selections to the grand and petit jury
was violated the
Fourteenth Amendment. Also See, Virginia v. Rives, 100 US 313, the case involved the
constitutionality of a murder conviction of a black person in a Virginia county Court by an
all-white jury.
8
Virginia v. Rives, 100 US 313,
observed that a state officer exercising authority is stopped from denying the
validity of that authority. ―The Court also observed that the provisions of the
Fourteenth Amendment have been addressed to every person, whether
natural or juridical, who is repository of State Power.‖9
JUSTIFICATIONS OF THE STATE ACTION REQUIREMENT

On analysing the historical and philosophical thoughts in which Constitution
of the U.S.A is based, one is easily drawn to the conclusion that the framers
of the Constitution insisted more on the State Action Doctrine because it
was believed that he remedy for any similar private infringement lay in the
common law of the time, as it was believed that the common law embodied
the natural law principles10.
In the Civil Rights Cases, Bradley J. observed that:
―the wrongful act of an individual unsupported by any such (State) authority
is simply a private wrong….and presumably by vindicated by resort to the
laws of the Sate for redress.‖11
Is has been said that the Doctrine of State Action protects and preserves the
liberty of an individual by limiting the reach of federal law and federal
judicial power.12 But in advancing such suggestion one is prioritising the
right of the violator than those of the victims, Moreover; the judgement is
mainly based on the identity of the state actors rather on the merits of the
claims.13
9
Memphis v. Cumberland Telephone & Telegraph
Co., 218 US 624.
10
Erwin Chemerinsky, ―Rethinking State Action”, (1985) 80 Nw. U. L. Rev. 502 at 511;
Corwin, ―The ―Higher‖
Law Background of American Constitutional Law”, (1928) 42 Harv. L. Rev. 149 at 179.
11
The Majority in this case held that in the absence of hostile state law or state proceedings,
Congress could not enact a law providing for positive rights under the Fourteenth
Amendment.
12
Lugar v. Edmondson Oil Co., 457 US 992 (1982).
13
Louis Henkin, ―Shelley v. Kraemer: Notes for a Revised Opinion‖, (1962) 110 U Pa L
Rev 473.
Additionally, it has been argued that if private action were made subject to
Constitutional Law, it would concern every tort or crime - which inevitably
involve deprivation of life and liberty, or property.14 However, this claim
ignores that if the criminal laws or the law of tort provides for adequate
remedies, then there is no denial of due process.15
One is often exposed to the rather unconvincing argument that removing the
State Action Doctrine would open the flood gates of litigation in the various
Constitutional Courts, to which Responding to the flood gates argument,
Beloff observes ―it is an argument which intellectually has little to
commend it, and pragmatically is usually shown to be ill-founded. For it is
often the case that, once the courts have shown the willingness to intervene,
the standards of the bodies at risk of their intervention tend to improve.‖16
Interestingly, the Indian Supreme Court, one of the most litigation burdened
Courts in the world17,has scoffed this argument, observing that the Courts
cannot shun their responsibility in anticipation of likely repercussions.18
STATE AGENCIES & INSTRUMENTALITIES

In this, it has been inquired whether the private activities come under the
―State Action‖,
A major criticism of the variety of cases that have dealt with this situation is
that they did not clearly explicate the basis of their decision. However, the
14
Goodman, ―Prof. Brest on State Action and Liberal Theory-A Postscript to Prof. Stone”,
(1982) 130 U. Pa. L.
Rev. 1331.
15
Ibid.
16
Michael I Beloff ,―Pitch, Pool, Rink, Court? Judicial Review in the Sporting World‖
(1989) Public Law 95; See
Also Finnigan v. New Zealand Rugby Football Union Inc. [1985] 2 NZLR 159.
17
As per the records of the Supreme Court of India, as of August 2008, there were 48,838
matters pending with
the Supreme Court, <http://www.supremecourtofindia.nic.in/new_s/pendingstat.htm> last
visited on 28.08.12.
18
Sinha J., in Zee Telefilms v. Union of India, AIR 2005 SC 2677.
cases which recorded a finding of State Action may be classified into three
categories –
(a) Leasing of property;
(b) Supplying of aid;
(c) Granting of some power or privilege by the Government.
In Harris v. City of St. Louis, it was held that that temporary leasing of
a Municipal auditorium would not be sufficient to justify a finding of
State Action. The Missouri Court of Appeals observed that the City
had not discriminated in the matter of leasing out the property, and it
is within the legal rights of the lessee as to what he may do with the
place he has rented for the night or the week, then those admitted only
on his terms cannot say they have been legally hurt. They have no
ground for legal complaint because of such action.19 In Kern v. City
20
Commissioners of City of Newton, the Supreme Court of Kansas,
however, held that the leasing of a municipal pool did not exonerate the
State from its obligations under the State and Federal Constitutions.
21
Similarly in Culver et al. v. City of Warren et al, it was observed that
when a Municipal swimming pool was leased to a private corporation, ―the
corporation, not for profit, was a mere agent or instrumentality through
which the City of Warren operated the swimming pool, at least to the extent
that the rights of its citizens to use the pool were affected.‖ Importantly, in
this case, it was observed that the fact that the property was dedicated to
public use or not was immaterial.
The doctrine was further expanded in the case of William H. Burton v.
19
111 S. W. 2d. 995(1938).
20
100 P. 2d. 709 (1940).
21
100 P. 2d. 709 (1940).
Willmington Parking Authority,46 wherein the US Supreme Court found

that when a public authority had leased its premises to a private restaurant,
the latter is susceptible to a challenge under the Fourteenth Amendment.
Fortifying the presumption that State inaction amounted to State ratification
of discriminatory conduct, the Court observed that ―by its inaction, the
Authority and through it the State, has not only made itself a party to the
refusal of service, but has elected to place its power, property and prestige
behind the admitted discrimination.‖22
Thus, the Courts limited governmental power to lease public property as a

means to forgo of Constitutional obligations.23 The foundational premises of
the various decisions have largely varied - the lease contains an implied
provision protecting Constitutional rights;24 the power to lease does not
incorporate the power to discriminate;25the property has been leased
temporarily and still belongs to the State and hence its use cannot be
discriminatory,26or that the State has a duty when the property has been built
with public money to make certain that its use is open for all;27 the primary
intent in making the lease was to discriminate.28 Thus, in ultimate analysis,
22
The Court interestingly distinguished the responsibilities of a restaurant owner from
those of an inn-keeper stating that while the latter performs a public function, the latter is
not compelled by law to provide his services to all those who demand them. In making the
distinction, the Court has signaled a cautioned departure from the Public Function
requirement.
23
―Equal Protection and Attempts to Avoid State Action‖, (1953) 29 Ind. L. J. 125.
24
Lawrence v. Hancock, 76 F. Supp. 1004 (1948).
25
Ibid; Easterly v. Dempster, 112 F. Supp. 214 (1953).
26
Culver v. City of Warren, 83 N. E. 2d. 82 (1948).
27
Kern v. Newton, 100 P. 2d. 709, (1940).
28
Tate v. Department of Conservation and Development, 133 F. Supp 53 (1955). Compare
with Easterly v. Dempster,
112 F. Supp. 215 (1953), where the City had, to relieve itself of the burdensome obligation
of maintain a profitless enterprise, leased a golf course to a private entity, the subsequent
discrimination by the owners will not amount to State Action.
in determining State Action, the enquiry turns to the character of the

leasehold right.29
Conversion of private activity into Governmental Action by grant of State
authority was demonstrated in Betts v. Easley30 wherein the Railway Labour
Act required the formation of a sole collective bargaining agent on behalf of
Railway employees. The Supreme Court of Kansas observed, ―in
performing its functions as such statutory bargaining agent, a labour
organization is not to be regarded as a wholly private association of
individuals free from all Constitutional or statutory restraints to which
public agencies are subjected.‖ The greatest advancement of the public
authority doctrine has been through the primary election cases as the
continuing attempts of the Southern Democratic Parties to prevent black
individuals from participating in the primary elections by inducing a step-
by-step withdrawal of State participation, were thwarted by the Courts by an
incremental expansion of the instrumentality theory.31 In the earliest case in
the string of decisions pertaining to the primary elections, it was held that a
state statute restricting participating in primary elections to only whites was
violative of the Fourteenth Amendment.32 It was contended, unsuccessfully,
that the statute concerned only political rights and hence could not be
challenged in Court. The US Supreme Court observed that, ―if the
defendant‘s conduct was a wrong to the plaintiff, the same reasons that
allow a recovery for denying the plaintiff a vote at a final election allow it
for denying a vote at the primary election that may determine the final
result.‖ To overcome the effect of the said decision, Texas amended its law
to transfer the responsibility to determine qualifications of party
29
Donald M. Cahen, ―The Impact of Shelley v. Kraemer on the State Action Concept‖,
(1956) 44 Cal. L. Rev. 719.
30
169 P. 2d. 831 (1946).
31
Donald M. Cahen, ―The Impact of Shelley v. Kraemer on the State Action Concept‖,
(1956) 44 Cal. L. Rev. 719.
32
Nixon v. Herndon, 273 US 536 (1927).
membership to the party State Executive Committee. The State Executive

Committee passed a resolution barring black individuals from participating
the State primaries. This was challenged in Nixon v. Condon.33 The US
Supreme Court observed that:
― when those agencies are invested with an authority independent of the will
of the association in whose name they undertake to speak, they become to
that extent the organs of the State itself…they are then governmental
instruments whereby parties are organized and regulated to the end that the
Government itself is established or continued.‖
Thereafter, the state of Texas deleted even this requirement from its statute
book, leaving all regulation of primaries to the parties. In Smith v.
Albright,34 the US Supreme Court held that a political party which is
statutorily required to conduct primaries for the selection of party nominees
to the general election ballot becomes an agency of the State in so far as it
determines the qualifications of the participants in the primary election. In
order to overcome the mandate of this decision, the state of South Carolina
then repealed all laws relating to primary elections with the tacit purpose to
continue the discrimination of blacks. This was challenged in Rice v.
Elmore,35wherein the Court of Appeals observed that:
―when these officials participate in what is part of a state‘s election
machinery, they are election officers of the State de facto if not de jure and
as such must observe the limitations of the Constitution. Having undertaken
to perform an important function relating to the exercise of sovereignty by
the people, they may not violate the fundamental principles laid down in the
Constitution for its exercise.‖
33
236 US 73 (1931).
34
321 US 649 (1944).
35
165 F.2d. 387(1947) The US Supreme Court in Elmore v. Rice, 333 US 875 (1948)
denied a writ of certiorari against the decision of the Court of Appeals, Fourth Circuit.
Harlan, J. dissenting in the Civil Rights Cases,36 observed that railroad

carriers and inn keepers performed important public functions and were akin
to public servants. Therefore, the protection afforded by the Thirteenth
Amendment would be applicable against them. Interestingly, in analyzing
the case of places of public amusement, Harlan J. observed that these places
operated under the license of the
Government and a license from the public to establish a place of
amusement, imports
in law, equality of right, at such places.37
The US Courts thus evolved a doctrine that subjected owners of private
property who opened their property to public use subject to Constitutional
standards. In the case of Marsh v. Alabama,38 the question arose that a
private township could prevent a person from distributing religious
literature. The majority opinion delivered by
Black, J. was premised on the notion that the more an owner opens up his
property for use by the public in general for his advantage, the more do his
rights become circumscribed by the statutory and Constitutional rights of
those who use it.
Interestingly, the Court opined that even in cases where the State had merely
36
Ibid. The Majority in this case invalidated a federal law titled ―The Civil Rights Act‖
preventing discrimination by inn keepers, railroads and places of public amusement, as it
was observed that the said law could not have been passed by the Federal Government
under the Thirteenth or Fourteenth Amendment. See Also, United States v. Cruikshank, 92
US 542 (1875).
37
Id. at p. 43. This observation lends itself as an exemplification to the critique of the State
Action doctrine on the basis of the Positive Law Theory. See Erwin Chemerinsky,
―Rethinking State Action‖, (1985) 80 Nw. U. L.
Rev. 502; James D. Barnett, ―What is ―State‖ Action under the Fourteenth, Fifteenth and
Nineteenth Amendments of the Constitution‖, (1944) 24 Or. L. Rev. 227. Erwin
Chemerinsky argues that under the Positivist construct State is assumed to authorize every
conduct it does not proscribe. In the opinion of the researcher this claim does not lend
support to a claim that constitutional rights may be enforced against a private entity, as
though the objectionable activity stems from a private entity, the remedy is available
against the State and not the private entity per se.
38
Ibid at p. 279.
Acquiesced to an entity performing an important public function, the entity

would be subject to Constitutional standards.
Thus, the US Courts had expanded the State Action doctrine to include the
(a) Actions of State officials who has acted either in excess of or in violation
of their authority;
(b) Actions of certain private entities when they had acted as
instrumentalities of the State.
The Purpose of the State Action Doctrine

The true purpose of the State Action is wrongly interpreted by both the
conservatives and liberal because both sides misperceive the purpose of the
doctrine. Conservatives are in error because the state action doctrine was not
intended to be used to protect individual rights or states‟ rights. Liberals are
in error because the Constitution was not intended to be used to regulate the
behavior of individuals nor does it guarantee governmental benefits.
Instead, the state action doctrine stands for the proposition that the people
have the right to determine for themselves, through their state and federal
elected representatives, how individuals are to treat each other and how
generous society will be in the distribution of wealth when it acts
collectively. The state action doctrine is neither a barrier to governmental
control of private parties, as conservatives imagine it to be, nor is it a
replacement for the democratic process, as liberals would have it.
The Constitution is based upon the once revolutionary but now

commonplace idea that the people of this Nation are sovereign. ―We the
people‖ ordained and established the government of the United States,
following the principles that were announced in the Declaration of
Independence that governments are instituted for the purpose of securing
people‘s inalienable rights, and that all just powers of government are
derived from the consent of the governed. The people of the United States
do not serve the government; rather, the government serves the people. It is
for this reason that the government may not invade the fundamental rights
of the people. In a hierarchy of constitutional values, the rights of the people
trump the powers of government, and therefore governmental action is
subject to people‘s fundamental rights. The state action doctrine emerges
from and reinforces these fundamental principles of American government,
in that the doctrine requires governmental action to be subject to judicial
review.
Constitutional law is central to our society and our system of law. It
establishes a democracy governed by majority rule, but it also protects
against what Alexis de Tocqueville and
John Stuart Mill called a ―tyranny of the majority.‖Our inalienable rights of
equality, liberty and fairness are protected from interference even when –
especially when – the majority of the people wish to violate those rights.
And because the Constitution is regarded as law, the duty to enforce its
prohibitions against state action is the responsibility of the courts.
But there are circumstances where the Constitution does not apply, or where
it applies in only weakened form. For example, two doctrines that inhibit the
courts from subjecting certain laws or governmental actions to rigorous
constitutional review are the political question doctrine and the doctrine of
governmental intent. The political question doctrine identifies a number of
subjects that must be resolved only through the political process. Under this
doctrine, matters such as the impeachment of public officials and a number
of matters relating to military and foreign policy are either not reviewable
by the judiciary or are reviewable only under a very deferential standard of
review. The doctrine of governmental intent is concerned with the
motivation of the person or entity whose actions are being reviewed. It
imposes a lower level of constitutional scrutiny upon and consequently vests
more discretion in actors who do not intentionally target certain
constitutionally protected groups or freedoms. The state action doctrine, like

the political question doctrine and the doctrine of governmental intent,
shields certain categories of conduct from constitutional review. The state
action doctrine has four related applications first; the state action doctrine
focuses in part upon whose actions are subject to constitutional review,
namely actions that are attributable to government. This aspect of the
doctrine normally prohibits constitutional review of the actions of private
individuals or organizations. The second feature of the state action doctrine
distinguishes between two types of governmental actions, affirmative acts
and failures to act, and declares that only the former may qualify as
violations of constitutional right. Consequently, the state action doctrine
does not require the government to adopt laws which forbid private acts of
discrimination nor does it require the government to enact social welfare
programs. Third, the state action doctrine creates the notion of a
―constitutional baseline,‖ and it allows the government to return to the
constitutional baseline by repealing antidiscrimination laws and social
welfare programs, but it prohibits the adoption of any governmental process
which makes it more difficult for some people to seek the aid of the
government than it is for others. And fourth, the state action doctrine is also
employed to limit the power of Congress in the enforcement and protection
of our fundamental rights.
I propose that in all four of these areas the state action doctrine should serve
a single, overriding purpose: constitutional respect for democratic choice. In
other words, the state action doctrine contributes to the right of the people to
govern them. Accordingly, it should be interpreted in light of its purpose
and should be applied only in cases where it would make a significant
contribution to democratic principles. I conclude that the Supreme Court has
applied the state action doctrine in ways that did not serve the principle of
democratic choice, leading to erroneous interpretations of the Constitution. I
also conclude that, properly understood, the state action doctrine is

analytically coherent, and that the criticism levelled at the doctrine by
several progressive scholars is not justified.
The next four sections of this article each describe one aspect of the state
action doctrine and analyze the application of the doctrine by the Supreme
Court and by progressive critics of the Court. I suggest that in several cases
the Court and its critics have misunderstood and misapplied the state action
doctrine because they have failed to be guided by its overriding purpose –
the preservation of democratic choice.
Definition of State as under Art.12 of the Constitution
“The State includes the Government and Parliament of India a d the

Government and the Legislature of each of the State‘s and all local or other
authorities within the territory of India or under the control of the
Government of India‖.39
Article 12 defines the term ‗State‘ as used in different Articles of Part III of
the Constitution. It says that unless the context otherwise requires the term
‗Sate‘ includes the following:-
1. The Government and Parliament of India, i.e., Executive and
Legislature of the Union.
2. The Government and the Legislature of each State, i.e., Executive
and Legislature of States.
3. All local and other authorities within the territory of India.
4. All local and other authorities under the control of the Government
of India.
39
Basu.D.D.,vol.1,8TH edi.2007, Wadhwa Nagar ,pg 639
Authority
Authority means a person or body exercising power40, or having a
legal right to command and be obeyed.41An authority is a group of persons
with official responsibility for a particular area of activity and having a
moral or legal right of ability to control others. If a particular co-operative
society can be characterized as a ‗state‘ under Art.12 it would also be ―an
authority‖ within the meaning of Art.226 of the Constitution. In the present
context, authority means the power to make laws, orders, regulations, by-
laws, directions, etc., having the force of law, and also the power to
administer, enforce or implement them.
―Authority‖ means a public administrative agency or corporation having
quasi-governmental powers and authorized to administer revenue producing
public enterprise. It is wide enough to include all bodies created by a statute
on which powers are conferred to carry out governmental or quasi-
governmental functions.
―Authority‖ in law belongs to the province of power. Authority in
administrative law is a body having jurisdiction in certain matters of a
public matter of a public nature. Therefore, the ability conferred upon a
person by the law to alter, by his own will directed to that end, the rights,
duties, liabilities or other legal relations, either of himself or of other
persons must be present ―ab extra‖ to make a person an ―authority‖. When
the person is an ―agent‖ for instrument of the function of the ―State‖ the
power is public.42
A government company carrying on commercial activities incorporated
under the Companies Act, which does not have any power of making rules
or regulations binding as law, nor the power to administer or to enforce such
40
WEBSTOR‘S Dictionary
41
ODHAM‘S Dictionary
42
Mohd. Anwar Ali v. State of J&K AIR 1967 JK.32
rules or regulation is not an authority under this Article. The word Authority
includes Central Government.
The word ―State‖ and ―Authority‖ used in Article 12, remain along, ―the
great generalities of the Constitutions‖ the content of which has been and
continues to be applied by Court from time to time.43
It thus includes all constitutional or statutory authorities on whom powers
are conferred by law, even the autonomous bodies,44 and whether or not
they are under the control of the Government or whether or not they are not
they may be regarded as agents or delegates of the Government.45What is
important in this context, is the power of the authority and not the purpose
for which such power has been conferred. Thus, if the other tests are
satisfied, a statutory body established for the purpose of carrying on
educational, social, or even commercial functions, would be ‗authority‘
within the purview of Art.1246
Local Authorities within the territory of India

Local authorities are under the exclusive control of the States, by
virtue of entry 5 of List II of the 7th Schedule. The entry contains a list of
some local authorities. A ‗local authority‘ is defined in section 3(31) of the
General Clauses Act X of 189747 as ―local authority‖ shall mean a
municipal committee, district board, body of port commissioner or other
authority legally entitled to, or entrusted by the Government with, the
control or management of a municipal or local fraud.
This expression will therefore, include a Municipal Committee48; a
Panchayat49;or Port Trust50.Municipality is a ―State‖ for the purpose of this
43
Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, 2002 5 SCC 111(Supra)
44
Rajasthan State Electricity Board v. Mohan Lal, 1967, 1 SCR 377
45
Ujjam Bai v. State of U.P. 1963 1 SCR 778
46
Parmatama v. Chief Justice, AIR 1961 Raj. 18
47
State of Gujarat v. Shantilal ,AIR 1969 SC 634
48
Ajit Singh v. State of Punjab, AIR 1967 SC 856
49
R.I. Handicrafts Manufacturing Association v. Kottayam Municipality, AIR 2000 Ker.30
Article. Local or other authorities may be a ―State‖ within the meaning of

Art.12.But that does not mean that the authorities are State Government or
Central Government and there is distinction between the ―State‖ and
Government.51
Other Authorities
It refers to the authorities other than those of local self-Government, who
have power to make rules, regulations, etc., having the force of law. In view
of the Supreme Court decision52 that there is no common genus53.
Instrumentality and agency are the two terms, which to some extent overlap
in their meaning. ―Instrumentality‖ and ―agency‖ are the two terms, which
to some extent overlap in their meaning. Quasi-judicial agency is a
governmental sponsored enterprise or corporation. Authority is the ―person
or persons in whom government or command is vested.54
The terms-‗instrumentality or ‗agency‘ of the State-are not to be found
mentioned in Article.12.It is a process of judicial interpretation-nay
expansion-keeping in view of sweep of Article.12,that they have been
included or following within the net of Article.12 subject to its satisfying
certain tests. While defining, the use of ―include‖ suggests-what follows is
not exhaustive. The definition is expansive of the meaning of the term
defined. However, the expanding dimension of the ‗State‘ doctrine through
judicial wisdom sought to be accompanied by wise limitation; else the
expansion may go much beyond what even the framers of the Article.12
may have thought of.
Instrumentality and agency are the two terms, which to some extent overlap
in their meaning. ―Instrumentality‖ includes ‗means‘ also, which ―agency‖
50
Natwarlal Khodidas Parmar v. Dist. Panchayat, Jamnagar, AIR 1990 Guj.142
51
Rajasthan Electricity Board v. Mohan Lal 1967 1 SCR
52
Pradeep Kumar Biswas v. Indian Institute of Chemical Biology AIR 2002 5 SCC 1
53
Housing Bd. v. H.H.B.E.U., AIR 1996 SC 434
54
Ramamurthy v. Chief Commissioner 1964 1 SCR 656
does not in its meaning. Quasi-governmental agency id a governmental

agency is a government sponsored enterprise or corporation. Authority is the
―person or persons in whom government or command is vested.‖55
The basic and essential distinction between ―an instrumentality and agency‖
of the State and ―other authorities‖ has to be borne in mind. An authority
must be authority sui juries‟ to fall within of the meaning the expression
―other authorities‖ under Article 12. A juridical entity, though an authority
may also ratify the list of being an instrumentality or agency of the State in
which event such authority may be held to be an instrumentality or agency
of State, but not vice-versa.56
The list of other authorities coming under Art.12

There is no common feature running through the various bodies,57 which
have held to be covered by the expression ‗other authorities‘
1. The expression refers to—
(i) Instrumentalities or agencies of the Government and
Government Departments.58 But every
instrumentality of the Government is not necessarily
the Government department.59
(ii) Every type of public authority , exercising statutory
powers, whether such powers are governmental or
quasi-governmental60 or non government and
whether such authority is under the control of
Government or not, and even though it may be
55
Ajit Singh v. State of Punjab AIR 1967 SC 634
56
Pradeep Kumar Biswas v. Indian Institute of Chemical Biology 2002 5 SCC 111
57
Rajasthan Electricity Board v. Mohan Lal AIR 1967 SC 1856
58
Kapila Hingorani v. State of Bihar 2003 6 SCC 1
59
Railway Board v. Observers Publications 1972 1 SCWR 2012
60
Bidi Supply Co. v. Union of India 1956 SC 267
engaged in carrying on some activities in the nature

of trade and commerce.61
(iii) An authority set up under a statute62 for the purpose

of administering a law enacted by the legislature,
including those vested with the duty to make
decisions in order to implement them.
(a) A private body or company.

(b) Society registered under the Societies Registration
Act.
(c) Corporation set up under the State Financial
Corporation Act,1951
But---
2. A non-statutory body, exercising no statutory powers63is not
‗State‘, e.g.,
(i) A company.64
(ii) Private bodies having no statutory power, not being supported
by a State Act.65
(iii) A society, registered under the Societies Registration Act,
unless it can be held that the Society was an instrumentality or
66
agency of the State, or exercise statutory power to make rules,
bye-laws or regulations giving statutory force.
61
Som Prakash v. Union of India AIR 1981 3 SCC 2012
62
Sukhdev v. Bhagatram, AIR 1975 SC 1331
63
Debdas v. K.E. College, AIR 1964 Raj.6
64
S.K. Mukherjee v. Chemicals, AIR 1962 Cal.10
65
Naresh v. State of Maharashtra AIR 1967 SC 11
66
Tiwari v.Jwala AIR 1981 SC 122
(iv) An autonomous body which is controlled by the Government

only as to the proper utilisation of its financial grant67.
3. Even a private body or corporation or an aided private school

may however, be included within the definition of State if it
acts as an agency of the ‗Government‘68
4. The following test would be applicable in determining,
whether a corporation is an agency or not.
(a) Whether the entire share capital is held by the Company.
(b) Whether the corporation enjoys monopoly status
conferred by the State.
(c) Whether the functions of the corporations are
governmental functions or functions solely related thereto
which are basically the responsibilities of a Welfare
State.69
(d) If a department of the Government has been transferred
to the corporation.70
(e) The volume of financial assistance received from the
State.
(f) Whether any statutory duties are imposed upon the
corporations.71
(g) The character of the corporations may change with
respect to its different functions.
67
Chander v. N.C.E.R.T., AIR 1992 SC 76
68
Suckdev v. Bhagatram AIR 1975 SC 1331
69
Ajay v. Khalid AIR 1981 SC 487
70
Manmohan v. Commr., AIR 1985 SC 364
71
Mehta v. Union of India AIR 1979 SC 1628
Conclusion
The state action doctrine is somewhat is still a mystery to law students, legal
scholars lawyers and judges. It is a key component of the Fourteenth
Amendment – a threshold requirement that must be satisfied before
triggering protection of our fundamental rights – but the doctrine itself
seems to be curiously without purpose, a collection of arbitrary rules that
impede constitutional protection of liberty, equality, and fairness for no
good reason. Nearly forty years ago Professor Charles Black called the state
action doctrine ―a conceptual disaster area‖72 and characterized scholarly
commentary upon it as ―a torch less search for a way out o a damp echoing
cave.‖ More recently other legal scholars have described the state action
doctrine as ―analytically incoherent‖ and ―a miasma.‖73 The reason that the
state action doctrine is considered to be so inscrutable is that the purpose of
the doctrine has been misunderstood. The purpose of this project is to
explain what the purpose of the state action doctrine is its justification, few
cases, how it is different from the Art.12 of the Indian Constitution.
Understanding of the operation of Part III is Article 12 of the Indian
Constitution which reads as follows, ―In this part, unless the context
otherwise requires, ―the State‖ includes the Government and Parliament of
India and the Government and the Legislature of each of the States and all
local or other authorities within the territory of India or under the control of
the Government of India.‖74 Thus, Article 12 lays down the State Action
requirement under the Indian Constitution.
72
Charles L. Black, Jr., Forward: “State Action,” Equal Protection, and California‟s
Proposition 14, 81 HARV. L. REV. 69, 95 (1967).
73
Alan R. Madry, State Action and the Due Process of Self-Help; Flagg Bros. Redux, 62
U. PITT. L. REV. 1, 2
(2000).
74
Zee Telefilms v. Union of India, AIR 2005 SC 2677
REHABILITATION AND REPARATION OF RAPE

VICITMS
Utkarsh Ravi1
Rushil Chandra2
Introduction
Lately Rape has become a notorious offence in India. Right from the mass
rape during the partition of the country to the the gang rape of a 23-year old
student on a public bus, on 16 December 2012 which sparked large protests
across Delhi, rape crimes have left a disturbing impact on the society. The
latest notable Incidents include the Shakti Mills case of Mumbai, 2013 and
the 2014 Badaun Gang rape. It is the fourth most common offence in the
country.3 Going by the National Crime Records Bureau 2013 annual report
there were 24,923 rape cases reported across India in 2012 out of which,
24,470 were committed by relative or neighbor.4
The Aftermath of the gang rape in Delhi saw a committee being made up
lead by Justice Verma. The main tasks included reforming of the existing
anti-rape laws. The 630 page report took 29 days of hard labor and was
lauded universally.5 On the basis of the Committee report the Criminal Law
Amendment Act 2013 was passed which altered the definition of rape to
Sexual assault. According to the Criminal Law Amendment Act 2013, the
definition of the offence of rape has been broadened 6 so as to reduce the
1
5th Year Student,, Dr. Ram Manohar Lohiya National Law University, Lucknow
2
4th Year Student, Dr. Ram Manohar Lohiya National Law University, Lucknow
3
Kumar, Radha The History of Doing: An Account of Women's Rights and Feminism in
India 128 ( Zubaan, 1993).
4
Government of India, Annual NRCB Report: Crime against women, (Ministry of Home
Affairs).
5
The Nirbhaya Case and its Aftermath, india, available at:
http://www.boloji.com/index.cfm?md=Content&sd=Articles&ArticleID=15504 (Visited on
September 15, 2014).
6
Criminal Law (Amendment) Act 2013, § 375.
possibility of sexual offenders escaping the clutches of justice. The

definition now reads7:
A person is said to commit ―sexual assault‖ if that person – (a) penetrates
his penis, to any extent, into the vagina, mouth urethra or anus of another
person or makes the person to do so with him or any other person; or (b)
inserts, to any extent, any object or a part of the body, not being the penis,
into the vagina, the urethra or anus of another person or makes the person to
do so with him or any other person; or (c) manipulates any part of the body
of another person so as to cause penetration into the vagina, urethra, anus or
any part of body of such person or makes the person to do so with him or
any other person; or (d) applies his mouth to the penis, vagina, anus, urethra
of another person or makes such person to do so with him or any other
person; (e) touches the vagina, penis, anus or breast of the person or makes
the person touch the vagina, penis, anus or breast of that person or any other
person, except where such penetration or touching is carried out for proper
hygienic or medical purposes under the circumstances falling under any of
the following seven descriptions:––
Firstly.–– Against the other person‘s will.
Secondly. –– Without the other person‘s consent.
Thirdly. –– With the other person‘s consent when such consent has been
obtained by putting such other person or any person in whom such other
person is interested, in fear of death or of hurt.
Fourthly. –– When the person assaulted is a female, with her consent, when
the man knows that he is not her husband and that her consent is given
because she believes that he is another man to whom she is or believes to be
lawfully married.
Fifthly.–– With the consent of the other person when, at the time of giving
such consent, by reason of unsoundness of mind or intoxication or the
7
The Indian Penal, Code 1860(Act no. 45 of 1860).
administration by that person personally or through another of any

stupefying or unwholesome substance, the other person is unable to
understand the nature and consequences of that action to which such other
person gives consent.
Sixthly. –– With or without the other person‘s consent, when such other
person is under eighteen years of age.
Rape exists in our society because of our narrow mindset. It is a higher level
of violence to subjugate a woman who otherwise would not pander to a
man‘s ego.8 It is a means of subjugating women and an attempt to establish
the male‘s superiority through violence. There have been countless
examples of men sexually violating women in the times of riots and social
chaos. All this leads to the same conclusion that men try to exhibit their
superiority over women by committing the offence of rape. If we analyze
the status quo, we will find that the implementation of law in our country is
very poor.9 Furthermore, the court staff, the investigating officers and the
defense counsel treat the rape cases as salacious gossip. No doubt there is
outrage when a rape case is reported in the news media but the solution to
curbing the menace of rape lies not in the outrage but in the mindset of the
people. We need to tackle the patriarchal and misogynic mindset of the
common man. Apart from changing the mindset, a permanent solution must
be sought for the rehabilitation of the rape victims rather than formulation of
new policies every now and then. Seeking a permanent solution would bring
about stability in the society and would increase the societal acceptance
towards the victims of rape.
8
Tehelka Bureau, ―How Do We Stop Rapes? India Looks For Answers‖, India, available
at: http://www.tehelka.com/delhi-gangrape-outraged-india-reacts/ (Visited on September
15, 2014).
9
IBNlive,―We asked people 'why do men rape women?' The answers are fascinating‖,
India, available at:
http://ibnlive.in.com/news/we-asked-people-why-do-men-rape-women-the-answers-are-
fascinating/448130-79.html (Visited on September 15, 2014).
Aftermath of rape
In most of the famous Incidents of rape the victim succumbs to the injuries
or dies on the spot and in other cases the victim although alive is as good as
dead. The experience of rape itself is extremely traumatic but that is not the
worst part. The worst part is its aftermath which is associated with mental
and emotional disturbance, in a significant proportion, of the victim10. The
psychological sequel of rape includes Post-Traumatic Stress Disorder
(PTSD), depression, generalized and phobic anxiety, sexual dysfunction and
substance misuse along with feelings of loss, impaired capacity for intimacy
and trust, loss of confidence and self-esteem, feelings of vulnerability,
increased dependence on others, anger and irritability11. Some of the rape
victims also experience, in addition to the above, a feeling of impairment of
social functioning thereby developing avoidance and social isolation12 from
their former interests and activities. Sexual dysfunction, as mentioned
earlier, is fairly common after rape and is usually associated with re-
experiencing symptoms and flashbacks of the rape and thereby resulting in
decreased enjoyment rather than decreased frequency of the sexual act13.
Rapes can be broadly categorized into three categories which are as follows:
1. Rapes committed by strangers.
2. Rapes committed by acquaintances.
3. Rapes committed by close relatives.
10
Kilpatrick et al, 1985; Mezey & Taylor, 1988.
11
―Effects of sexual assault‖, available at : http://www.rainn.org/get-information/effects-of-
sexual-assault (Last accessed on September 15, 2014).
12
Rana Sampson, ―Aquaintance rape of college students‖, Center for problem-oriented
policing, available at: http://www.popcenter.org/problems/rape/ (Last accessed on 16
September, 2014).
13
Gillian C. Mezey, Treatment of rape victims, Advances in psychiatric treatment (1997),
vol. 3, p. 198.
The third category amongst the above three is the one which causes the most
traumatic experience14 of all. This is because of the fact that the victim
reposes a strong sense of trust, in the perpetrator, which having been
violated leaves her shattered and therefore she finds it very difficult to
stabilize and reintegrate into the society after the harrowing experience.
Such person loses trust in anyone and is generally affected by loss of
confidence, irritability and helplessness.
What has our Government done for the rape victims so

far
The Government has been trying to come up with new policies and methods
to help the rape victims to cope up with the post-rape trauma. Recent
initiatives of the Government include the broadening of the definition of
‗rape‘ as mentioned in the Indian Penal Code, 1860 by the Criminal Law
Amendment Act, 2013 so as to reduce the possibility of the perpetrators
escaping the clutches of justice.. After the Delhi Gang rape case the centre
seeks to make an amendment in the Juvenile Justice Act and accordingly, a
new law has been passed which says juveniles above 16 will be considered
"adults" when they have been accused of rape or equally severe crimes.15
In 2010, the Supreme Court of India directed the National Commission for
Women to evolve a ―scheme so as to wipe out the tears of unfortunate
victims of rape‖16. The Supreme Court also observed that with regards to the
Directive Principles of State Policy17, it was necessary to set up Criminal
14
Meir Gross, INCESTUOUS RAPE: A cause for Hysterical Seizures in Four Adolescent
Girls, Vol. 49, Issue 4, p. 704-708, October 1979.
15
Government Moves Changes in Law to Try Juveniles as Adults in Rape Cases, NDTV,
Available at:
http://www.ndtv.com/article/india/government-moves-changes-in-law-to-try-juveniles-as-
adults-in-rape-cases-565267 (Last accessed on 17 September, 2014).
16
Delhi Domestic Working Women‘s Forum v. Union of India and others, writ petition
(CRL) No. 362.93 (India).
17
INDIA CONST. art 38(1).
Injuries Compensation Board, as rape victims not only suffer from mental
anguish, but also from financial problems as they find it very difficult to
continue in employment. The Apex Court further directed that
compensation for victims should be awarded by the Court on conviction of
the offender and by the Criminal Injuries Compensation Board whether or
not a conviction has taken place. The Board shall take into account the pain,
suffering and shock as well as loss of earnings due to pregnancy and the
expenses of child birth if this occurs as a result of rape and also gave certain
guidelines regarding the same18. Recently, Section 357- A was added to the
Code of Criminal Procedure. It reads:
(1) Every State Government in coordination with the Central Government
shall prepare a scheme for providing funds for the purpose of compensation
to the victim or his dependants who have suffered loss or injury as a result
of the crime and require rehabilitation.19
Therefore, in a nutshell, it can be said that, all that the Government has done
so far includes the formulation of victim compensation schemes and
monetary support being provided to the victims of rape.
Complying with the recommendations of the Justice J S Verma committee
and conforming with the WHO‘s guidelines for medico-legal services for
victims of sexual violence, The Union Health Ministry formulated new
guidelines to ensure that victims of sexual assaults are sensitively handled
and also asked for thorough documentation of medical evidence to help
better conviction rate in rape cases.20 The guidelines are essentially aimed at
doctors and can be used both for rape as well as cases of sexual
violence.The guidelines have provisions in the form of Do‘s and Don‘ts
18
Revised scheme for relief and rehabilitation of victims of rape, available at:
http://ncw.nic.in/PDFFiles/Scheme_Rape_Victim.pdf (Last accessed on 17 September,
2014).
19
S. 357-A, CRPC, 1973.
20
New guidelines for sensitive handling of rape victims – Indian Express, available at:
http://indianexpress.com/article/india/regional-india/new-guidelines-for-sensitive-handling-
of-rape-victims/ (Last accessed on 18 September, 2014).
such as , it is no longer relevant to check elasticity of the vagina and anus.21

This has been done to conform with the new definition of rape.
The aftermath of the Delhi gang rape saw the Delhi High Court coming up
with some guidelines and issuing the same to the Government. These
included:
 That the Compensation money should be disbursed within 24 hours
of the award instead of the 2 weeks time. It has to be distributed as
soon as possible.
 The Delhi Government has been asked to induct 14, 689 Police
officers. The Court has deemed it to be mandatory and the need of
the hour.
 The High court also issued a slew of directions on issues including
women safety, compensation for victims, setting up more Forensic
Science Labs facilities in the city and induction of more police
personnel, including women.22
Considering the trauma and the mental and physical injuries suffered by the
victim, monetary compensation does not seem to be enough. Therefore, the
Government should come up with a model that can transform the
rehabilitation efforts on a whole new level by changing the existing support
machinery.
Setting up a model for the governmental machinery

When it comes to the question of rehabilitation of the rape victims, we need
to look into the possibility of a long term change and not a short one. By a
long term change it is meant that a permanent solution must be sought rather
21
http://uphealth.up.nic.in/med-order-14-15/med2/sexual-vil.pdf (Last accessed on 20
September, 2014).
22
Compensate rape victims in 24 hours, expedite induction of more cops: Delhi High
Court, available at:
http://www.dnaindia.com/delhi/report-compensate-rape-victims-in-24-hours-expedite-
induction-of-more-cops-delhi-high-court-2008618 (Last accessed on 12 October, 2014).
than coming up with such policies which are subject to change every now
and then. Therefore, the permanent solution that can be suggested here is the
establishment of rehabilitation centers in every State. Such rehabilitation
centers must be set up in each State under the aegis of the State
Governments and the administration of these rehabilitation centers should
be similar to that of the prison administration. In order to hide the identities
of the rape victims, each of them must be allotted a unique number instead
of their names and must be addressed with their new unique identities so as
to avoid any possibility of social stigma being attached to their names. The
Supreme Court while noting an affidavit filed by Additional Superintendent
of Police, Indore, detailing the compensation amount paid to the victims of a
gang rape, who had described both the girls by their names, which was as an
offence under Section 228 A of the Indian Penal Code issued a show cause
notice to him to explain within four weeks as to why no case should be
registered against him for disclosing the identity of rape victims.23
Now, the first challenge before the rehabilitation authorities would be the
treatment of the mental trauma suffered by the victims. This can be done by
the appointment of psychiatrists, preferably females, who would explain to
the victims that whatever happened to them was not their fault. This is
especially important for those women who, because of religion or culture,
tend to believe that such an incident occurred to punish them for something
bad done by them. Psychiatric treatment is quintessential because most of
the rape victims develop notions according to which they presume that they
have become unclean or bad and as a result this brings a change in their
attitude leading to loss of self-esteem and confidence. Such rehabilitation
centers should be equipped with essential sports and recreation facilities.
The victims must have daily therapy sessions in which they should be
23
SC Irked For Disclosing Rape Victims‘ Names, Orders Compensation, Tehelka, available
at: http://www.tehelka.com/sc-irked-for-disclosing-rape-victims-names-orders-
compensation/ (Last accessed on 7 October, 2014).
encouraged to express anger at the rapist so that they stop blaming

themselves. In order to make sure that the rape victims are not raped in
future they must be taught self defense strategies and must also be given
proper facilities for learning self defense arts. The workers at these
rehabilitation centers including the psychiatrists, chefs, trainers for self
defense arts and other staff should preferably be females and proper police
machinery must be provided by the State to make sure that the victims stay
protected and are not violated any further by any staff member.
What needs to be changed

In a recent case of Madhya Pradesh where two minor girls were gang raped
by 16 men in Betwa town in 2012, a bench of Justices R M Lodha and
Madan B Lokur remarked: ―No amount of money can restore the dignity
and confidence of rape victims. However, certain measures like adequate
compensation, insurance, employment and social security schemes may help
in rehabilitating the rape victims to a certain extent,”.24 Criticizing the State
government for paying only 2 lakhs as compensation, the Court declared the
amount as highly deficient and insufficient.25 It later stated: ―You are
making a mockery of compensation. They suffer from serious infraction of
human rights. As a welfare state, you are not able to provide support to
rape victims,” and directed the state government to pay Rs 8 lakhs more to
both the girls within one month. However, the bench did not pass any
direction to the Centre for framing rehabilitation policy for rape victims.
The Centre needs to come up with a proper Rehabilitation policy for the
same.26
24
Editorial, ―SC asks MP govt to pay two rape victims Rs 10 lakh each‖ The Times of
India, Oct. 8, 2014.
25
Editorial, ―Rs. 2 lakh for rape victims a mockery of system: SC‖, The Hindu, Oct. 7,
2014.
26
Editorial, ―SC wants rehabilitation scheme for rape victims‖, Deccan Herald, Oct. 7,
2014.
Next, there is an immediate need to change the common mentality of the

Indian society without which we can never reduce the number of rapes
being committed in our country. No matter how hard the sanctions be, and
no matter what all measures are taken by the State, they all will be in vain
unless and until the common mentality of the masses in India changes. If
molestation takes place late at night then the most common reaction
including that of police or administrative authorities is to post questions
such as ―What was the girl doing so late in the night?‖27 The GPS and
CCTVs, after all, cannot track what goes inside homes and minds of men;
they can only make our streets a bit safer28. The only method for combating
the menace of rape is an immediate change in the mentality of the common
masses which can be done if every individual takes up the responsibility of
protecting his fellow citizens from rape and other sexual offences. We, the
people, need to introspect ourselves whether we are contributing to the
objectification of women, from the popular culture we consume to the way
we bring up our children – from where it‘s a slippery slope to a twisted and
unjust understanding of sexual assault in legal terms29 The role of media
After the Delhi gang rape incident, the media has been successful to some
extent in reporting almost all of the major cases.30 Media can prove to be the
ultimate instrument in bringing about change in the mentality of the Indian
society by developing a sympathetic behavior towards the rape victims.
Media is also referred to as the fourth branch of the Government and it has
the responsibility just like the other three branches to help put an end to the
crime of rape.
27
Editorial, ―Why Indian men rape‖, The Times Of India, Jan. 13, 2014.
28
Id
29
Tehelka Bureau, How Do We Stop Rapes? India Looks For Answers, India, available at:
http://www.tehelka.com/delhi-gangrape-outraged-india-reacts/ (Visited on 13 January,
2014).
30
N Prabha Unnithan, Crime and justice in India 284 (SAGE Publications, 1st edn., 2013).
The problem with media is that their coverage is more rapist-centric rather
than victim-centric which is wrong31. The Indian news media‘s coverage of
the Delhi gang rape and its aftermath has started to resemble the kind of
play-by-play commentary once seen in cricket matches, with a focus on the
short-term and the sensational32. This kind of media coverage gives a very
different picture to an ordinary viewer and the whole purpose of reporting
such an incident stands defeated. What the news media should actually do
is, that they should make their coverage more victim-centric and must
highlight the trauma and suffering undergone by the victim and should
portray it in such a way that it develops sympathy in the minds of the
viewers for the victim. Media should also focus on gender sensitization so
as to gradually change the common mindset of the Indian society. After all
its only the media that can unite the people.
The Delhi Rape incident or the Shakti mill‘s Case was raised in press
because it happened in Delhi and Mumbai respectively. This nation is a bit
bigger than Delhi and our metros. The real India resides in the villages. The
central Indian state of Madhya Pradesh has witnessed perhaps the highest
number of gang-rapes in the country, Jablapur being the leading
city. Despite some 824 gang rapes having been reported in the state‘s
assembly records over the past two, these attacks rarely make headlines in
national newspapers. In short we need a uniform coverage of all the
incidents, be it a village or a Metropolitan.
Another important aspect of recent coverage has been the role of social
media. The internet and social media need to be utilized as tools to mobilize
public support throughout India. People need to raise their voices through
31
Josh Shahryar, How media can help stop rape, Women under siege, India, available at:
http://www.womenundersiegeproject.org/blog/entry/how-media-can-help-stop-rape
(Visited on 13 January, 2014).
32
Neha Thirani, After Delhi Rape Victim Leaves India, Questions Raised About Media‘s
Role, India Ink, India, available at: http://india.blogs.nytimes.com/2012/12/27/after-delhi-
rape-victim-leaves-india-questions-raised-about-medias-role/?_r=0 (Visited on 13 January,
2014).
Twitter, Facebook and other social media, expressing their frustrations or

delight. Lastly, the media also has to respect the Privacy of the victim to the
greatest extent possible. The victim has already suffered much, their privacy
should be respected.
Conclusion:
There is no straight jacket formula for combating the menace of rape in the
Indian society. In other words, a number of changes need to be brought
about in the existing system so as make conditions better for rape victims in
our society. These changes cannot be implemented until the common man
becomes familiar with gender sensitization and starts treating females at par
with males. The common mentality needs to be changed in order to improve
conditions for the rape victims. Every institution be it Governmental or
private, needs to be sensitive to rape victims and needs to take steps to uplift
their morale. The common man must stop shifting blame on the victims and
should start taking responsibility and by exercising self control.
Except for the compensation, the amount of problems suffered by a victim
of rape is alarming and hardly anything has been done both through
statutorily and various schemes to address them. The legislature should
consider coming up with schemes to genuinely benefit the victim so that the
latter‘s life can be made facile. The provisions of victim rehabilitation in our
country are simply not enough. We need to take some inspiration from the
legislations of the US, UK etc. in order to ensure proper justice and a
successful rehabilitation scheme. Fair, considerate and sympathetic
treatment by the police, hospitals, welfare organizations, prosecutions and
courts and, Security to Victims and potential Victims against victimization
in future have to be kept in mind.33
33
Murugesan Srinivas and Jane Eyre Mathew, ―Victims and the Criminal Justice System in
India: Need for a Paradigm Shift in the Justice System‖ TEMIDA str 51-62(2007).
Because of the low crime reporting rates and lower conviction rate the
state‘s role in protecting and providing of human rights security is being
questioned. The victim has to bear the brunt most of the times having no
assists whereas, the accused has access to full support mechanisms.
However, the victim‘s right movements have changed the story and the
pertinent question is no longer what should be the correct punishment but
rather, what ought to be the just mode of redressal of the injury perpetrated
on the victim. The legislative and judicial initiatives in India although in
nascent stage have achieved much but; a lot remains to be conquered.
DEVELOPMENT OF HUMAN RIGHTS: INDIAN AND

INTERNATIONAL PERSPECTIVE
Malika Nandkeolyar*
INTRODUCTION
Section 2 (1) (d) of the Protection of Human Rights Act, 1993, talks about
Human Rights which states that ―the rights relating to liberty, life, equality
and dignity of the individual guaranteed by the constitution are human
rights‖. The expression ―human rights‖ has not been defined specifically in
any Declaration or Covenant of United Nations. Human Rights are generally
defined as ―those rights which are inherent in our very nature and without
which we cannot live as human beings
The Government of India realized the need to establish an independent body
for protection of human rights. The establishment of an autonomous
National Human Rights Commission by the Government of India reflects its
commitment for effective implementation of human rights provisions under
national and international instruments. The Commission came into effect on
12 October 1993, by virtue of the Protection of Human Rights Act 1993.
The Act contains broad provisions related with its function and powers,
composition and other related aspects.
CONCEPT OF HUMAN RIGHTS

Human rights are such norms which prescribe certain moral conducts of
human beings which are consequently protected by legal and constitutional
rights in national as well as international arena. These are universal rights
based on egalitarian principle. They cannot be seized by the State except by
the due processes of law.
In his Tagore Law Lecture (The Dialectics and Dynamics of Human Rights
in India), Jutice V.R. Krishna Iyer 1describes the width and sweep of
human rights in his matchless words said-
“Human rights are writ on a large canvas as large as the sky. The law
makers, lawyers and judges must make the printed text vibrant with human
values, not be scared of consequences on the status quo orders. The militant
challenges of today need a mobilization of revolutionary consciousness sans
which civilized systems cease to exist remember, we are all active
navigators, not ideal passengers on space ship, earth as it ascends to
celestial levels of glorious human future”
EVOLUTION OF HUMAN RIGHTS

The concept of human rights, being a modern concept arose in Europe in the
17th and 18th centuries during the struggle of people against feudal
despotism. It was the English philosopher John Locke who first propounded
the theory of natural rights which the citizens would claim even against the
king. These rights were first declared as Legal rights by French National
Assembly in the ‗Declaration of Rights of Man‘ in the year 1789 during
French Revolution. Subsequently, these rights were incorporated in the ‗Bill
of Rights‘ in the US Constitution in 1971 and they have been included by
many countries in their constitution.
The human rights in international arena trace back to the Magna Carta (1215
AD), the Petition of Rights (1627 AD) and the Bill of Rights (1688 AD) in
the U.K. It was the golden rays of sun enlightening the world of 19th century
to human being to know about human rights they possessed. Worth of
human personality began to be realized.
The resultant of human rights movement was experienced after the Second
World War. During the war whole humanity was shocked due to heinous
1
Ram Deo Chauhan v. Bani Kant Das, AIR 2011 SC 615
crimes committed against men and human rights perished. The history
witnessed silently tyranny and complete lawlessness of Nazi Leaders of
Germany. President Franklin D Roosevelt on January 6, 1941 reflected in
the proclamation of 4 freedoms namely-1.Freedom of Speech
2. Freedom of Religion
3. Freedom of want
4. Freedom from fear.
He said “Freedom is the supremacy of human rights everywhere; our
support goes to those who struggle to gain and maintain those rights‖.2
The growth and evolution of human rights and international law had
achieved a remarkable progress since 1945. On 24th October, 1945 the world
at large witnessed establishment of United Nations Organization which on
the 10th December, 1948 adopted the Universal Declaration of Human
Rights. This was the first positive manifestation of internationalization of
human rights values. Soon, thereafter followed the European Convention of
Human Rights signed in November, 1950 and brought into force in 1953.
This convention created bodies such as The European Commission and
European Courts of Human Rights established in 1959. In the same year, the
United Nations General Assembly proclaimed the Declaration of Rights of
Child. The year 1966 witnessed adoption of International Covenant of
Economic, Social and Cultural Rights; International Covenant on Civil and
Political Right; Optional Protocol on International Covenant on Civil and
Political Rights, and International Covenant on the Elimination of All Forms
of Racial Discrimination. In the year 1979, Covenant on all forms of
Discrimination against Women was adopted. In 1986, The United National
General Assembly proclaimed the declaration against women. In the same
year, United Nations General Assembly proclaimed the Declaration on the
Right to Development.
2
http://www1.umn.edu/humanrts/education/FDR4freedoms.html accessed at 19.10.2014 at
10:47 AM
Human Rights ensure that the victims are-

1. To be free from intimidation
2. To be informed about availability of international and legal
assistance
3. To get back stolen or other personal property which is no longer
needed as evidence; and
4. A speedy investigation and trial of the case.
What was said by Alexander Hamilton, the great constitutional expert and
political philosopher, way back in 1775, is poignant still today having a
clear perception of what human rights are. He said, “The sacred rights of
mankind are not to be rummaged for, among old parchment, or musty
records. They are written as with a sun beam in the whole volume of human
nature, by the hand of the divinity itself and can never be erased or
obscured by mortal power”3
INDIAN CONTEXT
The Indian context perceives an individual, society and world at large as an
organic whole which is implicit in the doctrine of “Vasudhaiva
Kutumbakam‖. The Buddhist doctrine of non-violence in deed and thought
says it is a humanitarian doctrine par excellence. Jainism too contained such
doctrines. According to the Gita, “he who has no ill will to any being, who
is friendly and compassionate, who is free from egoism and self sense and
4
who is even-minded in pain and pleasure and patient is dear to God.‖ It
also says that divinity in humans is represented by the virtues of non-
violence, truth, freedom from anger, etc.
Ancient Hindu Law of Human Rights
3
R.P Kataria “Commentary on Human Rights‖ First Edition, Orient Publishing Company,
2011, page 37
4
http://shodhganga.inflibnet.ac.in/bitstream/10603/9617/12/12_chapter%202.pdf accessed
on 19.10.2014 at 10:59 AM
Scholars who have spent long time in lucubration on the Hindu

"Dharmasastras" and the "Arthasastras" and other legal treatises of the past
have discovered a system which regulates the duties of Kings, judges,
subjects and judicial as well as legal procedures. The central concept is
Dharrna, the functional focus of which is social order. Human rights gain
meaning only when there is an independent judiciary to enforce rights.
Dharmasastras provides for the same.
The independence of the judiciary was one of the outstanding features of the
Hindu judicial system. Even during the days of Hindu monarchy, the
administration of justice always remained separate from the executive. The
case of Ananthapindika v. Jeta 5reported in the vinaya-pitaka, is a shining
illustration of this principle. According to it, a Prince and a private citizen
submitted their cases before the law court and the court decided against the
Prince. The Prince accepted the decision as a matter of course and as
binding on him. Law in Hindu jurisprudence was above the sovereign. It
was the "Dharma." Certain laws were regarded as above all human
authority. Such, for instance, were the natural laws, which no Parliament,
however supreme, could abolish
There are many references in the Vedas, which throw light on the existence
of human rights in ancient lndia. The Vedas proclaim liberty of body (Tan),
dwelling house (Skridhi), and life (Jibase). In 1367 B.C. Bahmani and
Vijayanayar Kings are stated to have entered into an agreement for the
humane treatment of prisoners of war.
Kautilya's Arthasastra asserts that in the happiness of the subject‘s lies the
happiness of the King, and what is beneficial to the subjects is his own
benefit. Kautilya didn‘t agree of this theory of royal absolutism and
subordinated the King also to the law. Similarly, Shantiparva prescribes that
5
P.B. Mukherji, “The Hindu Judicial System - The Cultural Heritage of India‖, Vol.ll,,
Tagore Law
lectures (Calcutta: Eastern Law House. 1999), pp 434-435
a king may be punished if he does not follow the path of the Dharma.
Emperor Ashoka protected and secured the most precious of human rights,
particularly the right to equality, fraternity, liberty and happiness.
Human Rights in the Islamic Era
The Muslim invasion of India created a new situation wherein the Muslim
rulers followed a policy of discrimination against the Hindus. So the
significance of Muslim rule in lndia was counter- productive to harmony,
justice and equality. There was one law for the Muslims (the faithful) and
another for the Hindus (the Kafirs or the infidels) With the Mughal rulers,
especially with Akbar new era began in the Mughal history of India in the
field of human rights as a result of his policy of 'Universal Reconciliation
and Tolerance.'
Human Rights in British lndia
The modern version of human rights jurisprudence may be said to have
taken birth in lndia in the British rule. Resistance to foreign rule led to
demand for freedom and giving the basic socio political rights of citizens.
Indian were often discriminated by the British rulers. The impression
created in the Indian minds was that their sacred inalienable human rights
and vital interests had been ignored, denied, and trampled upon for the
English rulers.
Motilal Nehru Committee -In 1925 the Indian National Congress finalized
the draft of Common Wealth of India adopting a 'Declaration of Rights'. The
Madras Session of the Congress held in the year 1927 - demanded
incorporation of a 'Declaration of Fundamental Rights' in any future
constitutional framework. A committee under Motilal Nehru was appointed
by the National Congress to study the fundamental rights. The Simon
Commission, appointed by the British Government in 1927, however,
totally rejected the demands voiced by the Nehru Committee reports.
Constituent Assembly and Human Rights-The Indian Constitution was
framed by the Constituent Assembly of India, which met for the first time
on December 9, 1946. The Constitution of India gave primary importance to

human rights. To quote Guha, "The demand for a declaration of
fundamental rights arose from four factors."
1. Lack of civil liberty in India during the British rule
2. Deplorable social conditions, particularly affecting the untouchables and
women
3. Existence of different religious, linguistic, and ethnic groups encouraged
and exploited by the Britishers
4. Exploitation of the tenants by the landlords
The Constituent Assembly incorporated in the Constitution of India the
substance of the right; proclaimed and adopted by the General Assembly in
the Universal Declaration of Human Rights. Further on l0th December
1948, when the Constitution of India was in the making, the General
Assembly proclaimed and adopted the Universal Declaration of Human
Rights.
Many of the rights enveloped in The Universal Declaration of Human
Rights were incorporated in the Indian Constitution in The Chapter on
Fundamental Rights.
HUMAN RIGHTS AND INTERNATIONAL DECLARATION

UNIVERSAL DECLARATION OF HUMAN RIGHTS-
Preamble of the act states and the General Assembly proclaims- Whereas
recognition of the inherent dignity and of the equal and inalienable rights of
all members of the human family is the foundation of freedom, justice and
peace in the world, Whereas disregard and contempt for human rights have
resulted in barbarous acts which have outraged the conscience of mankind,
and the advent of a world in which human beings shall enjoy freedom of
speech and belief and freedom from fear and want has been proclaimed as
the highest aspiration of the common people, Whereas it is essential, if man
is not to be compelled to have recourse, as a last resort, to rebellion against
tyranny and oppression, that human rights should be protected by the rule of
law, Whereas Member States have pledged themselves to achieve, in co-
operation with the United Nations, the promotion of universal respect for
and observance of human rights and fundamental freedoms, Whereas a
common understanding of these rights and freedoms is of the greatest
importance for the full realization of this pledge.
The declaration entails the following provisions6-
ART 1-. Everyone is born free and has dignity because they are human.
ART 2-. Everyone has equal rights regardless of differences between people
such as gender, religion, language, wealth or political opinion.
ART 3- Everyone has the right to life and the right to live in freedom and
safety.
ART 4- No one shall be held in slavery.
ART 5- Everyone has the right not to be hurt, tortured or treated cruelly.
ART 6- Everyone has the right to be treated as a person under the law
everywhere.
ART 7. The law is the same for everyone and should protect everyone
equally.
ART 8. Everyone has the right to ask for legal help when their basic rights
are not respected.
ART 9. No one should be arrested or expelled from their country without
good reason.
ART 10. Everyone has the right to a fair trial, if accused of a crime
ART 11. Everyone has the right to be presumed innocent until proven
guilty, accused of a crime.
ART 12. Everyone has the right to privacy.
ART 13. Everyone has the right to travel within and outside their own
country.
6
http://www.ohchr.org/EN/ProfessionalInterest/Pages/CoreInstruments.aspx accessed on
19.10.2014 at 11:33 AM
ART 14. Everyone has the right to seek asylum in another country.
ART 15. Everyone has the right to a nationality.
ART 16. Everyone has the right to marry and have a family.
ART 17. Everyone has the right to own property.
ART 18. Everyone has the right to free thoughts, conscience and religion
including the right to practice their religion privately or in public.
ART 19. Everyone has the right to say what they think and to share
information with others.
ART 20. Everyone has the right to meet with others publicly and privately
and to freely form and join peaceful associations. There are other provisions
in this Charter as well.
INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL

AND CULTURAL RIGHTS AND THE INTERNATIONAL
COVENANT ON CIVIL AND POLITICAL RIGHTS
The ICESCR is a multilateral treaty adopted by the UN General
Assembly on December 16, 1966. The International Covenant on Civil
and Political Rights was also adopted on December 16, 1966 but came
into force on March 23, 1976.
Broadly the 2 charters divide the rights into 3 headings:
1. Rights of the Nations- both the covenants essentially recognize
the rights of Self- Determination and rights to own, trade and
dispose of property freely and not to be deprived of the essential
subsistence
2. Civil and Political Rights- The rights pertaining to right to life,
integrity, liberty and security of human person; the right with
respect to administration of justice; the right to freedom of
religion or brief and to form opinion and expression, freedom of
movement; the right to assembly and association; and the right to
political participation.
3. Economic, Social and Cultural Rights- The right to work, trade

union freedoms; the right to adequate standard of living,
including food, lodging and clothing; the right to health care; the
right to education and the right to take part in cultural life. The
covenants also forbid torture and inhuman treatment, slavery,
arbitrary arrest and detention in debtor‘s prisons. The ICCPR
forbids exploitation of children, and requires that all nations
cooperate to terminate world hunger. They forbid propaganda‘s
advocating either war or hatred based on race, religion,
nationality or language.
The charters and covenants form the basic link in the recognition of human
rights internationally and were later incorporated in the Indian Constitution.
In, Keshavananda Bharati v. State of kerala7, the Supreme Court observed,
"The Universal Declaration of Human Rights may not be a legally binding
instrument but it shows how India understood the nature of human rights at
the time the Constitution was adopted."
HUMAN RIGHTS AND STATUTORY AND JUDICIAL ASPECT

The National Human Rights Commission of India is an autonomous public
body which was constituted on October 12 1993 under the Protection of
Human Rights Ordinance of 28 September 1993. It is a statutory organ
which was given its statutory status by the Protection of Human Rights Act,
1993. Human rights are the rights of individuals relating to their life, liberty,
equality and dignity. The term would apply to individual rights of parties
even against State arising under contract. 8
Constitution of the National Human Rights Commission- The
Constitution of the Commission dealt with in Chapter II of the Act. Section
7
AIR 1973 SC 1461
8
Maharashta Housing and Area Development Authority v. Maharashtra State Human
Rights Commission, AIR 2010 Bom 2014
3 of the Act says: ―the Central government shall constitute a body to be

known to the National Human Rights Commission to exercise the powers
conferred upon, and to perform the functions assigned to it, under this Act.9
The Commission shall consist of
(a) A Chairperson who has been a Chief Justice of the Supreme Court;
(b) One Member who is, or has been a judge of the Supreme Court;
(c) One Member who is, or has been the Chief Justice of the High Court;
(d) Two members to be appointed from amongst persons having knowledge
of, or practical experience in, matters relating to human rights.
3. The Chairpersons of the National Commission for Minorities, the
National Commission for the Scheduled Castes and Scheduled Tribes and
the National Commission for Women shall be deemed to be Members of the
Commission for the discharge of functions specified in clauses (b) to (j) of
section 12.
4. There shall be a Secretary-General who shall be the Chief Executive
Officer of the Commission and shall exercise such powers and discharge
such functions of the Commission as it may delegate to him.
5. The headquarters of the Commission shall be Delhi and the Commission
may, with the previous approval of the Central Government, establish
offices at other places in India.
POWERS AND FUNCTIONS OF THE COMMISSION

Wide powers and functions have been given to the Commission under
Section 12 of the Act. The Commission shall, perform any of the following
functions namely-
1. Inquire on its own initiative (suo motto) or on a petition presented to
it by a victim or any person on his behalf, into complaint of-
a. Violation of human rights or abetment; or
9
The Protection of Human Rights Act, 1993 section 3.
b. Negligence in the prevention of such violation, by a public

servant.
2. Intervene in proceedings involving any allegation of violation of
human rights pending before a court
3. Visit, under intimation to the State Government, any jail which is
under the control of the State Government, where the persons are
detained for the purposes of treatment, reformation or protection to
study the living condition of the inmates and make
recommendations;
4. review the safeguards for the time being in force for the protection
of human rights and recommend for their effective implementation;
5. review the factors, including acts of terrorism that inhibit the
enjoyment of human rights;
6. study treaties and other international instruments on human rights
and make recommendations for their effective implementation;
7. undertake and promote research in the field of human rights;
8. spread human rights literacy among various sections of society;
9. encourage the efforts of non - Governmental organizations and
institutions working in the field of human rights;
10. other functions as it may consider necessary for the promotion of
human rights.
MAJOR INITIATIVES OF THE COMMISSION:

The commission has taken initiatives in guarantying civil liberties which
includes Terrorist and Disruptive Activities Act, Prevention of Terrorism
Bill, 2000, etc. It set up many Human Rights Cells in the State and City
Police Headquarters for protection of Human Rights. It took serious steps to
check custodial deaths, torture and rape of women. It took up various
discussions and conferences on review of Refugee Laws in the country. It
took up studies for police and prison reforms. It took steps for elimination of
Bonded Labour and Child Labour. It gave serious thought to issues of Right
to Food, Maternal Anemia and Public Health. Rights of women, vulnerable,
scheduled caste and scheduled tribes have been given a status of major
Human Rights issue.10
ILLUSTRATIVE CASES:
National Human Rights Commission v. State of Arunachal Pradesh
The Commission under Article 32 of the Indian Constitution has filed a writ
petition as a public interest petition before the Supreme Court of India11.
The Commission filed this petition mainly for the enforcement of
fundamental rights of about 65,000 Chakma\ Hajong tribals under Article 21
of the Constitution.12 In this case a large number of refugees from erstwhile
East Pakistan were displaced in 1964 due to Kaptain Hydel Project. These
displaced Chakmas had taken shelter in North-Eastern States of India,
namely, in Assam and Tripura. There were two main issues involved in this
case; (1) conferring of citizenship; (2) fear of persecution by certain sections
of the citizens of Arunachal Pradesh. Largely to these two issues NHRC was
approached by two different NGOs. The Commission contended before the
Court that the Commission found serving of quit notices by All Arunachal
Pradesh Students Union (AAPSU) to Chakmas and their attempted
enforcement appeared to be supported by the officers of Arunachal Pradesh.
The State government deliberately delayed the disposal of the matter by not
furnishing the required response to NHRC and in fact assisted in the
enforcement of eviction of the Chakmas from the State through its agencies.
The Court after hearing the argument directed the government of Arunachal
Pradesh to ensure the life and personal liberty of each and every Chakma
residing within the State.
10
http://www.nhrc.nic.in/
11
National Human Rights Commission of India v. State of Arunachal Pradesh, AIR 1996
SC 1235
12
Article 21 of the Indian Constitution provides, ―No one shall be deprived of his life or
personal liberty except according to procedure established by law‖
Punjab Mass Cremation Order13

14
Two writ petitions were filed before the Supreme Court of India
containing serious allegations about large-scale cremations resorted to by
the Punjab Police of persons allegedly killed in what were called
encounters. The main concern of the Writ Petitions was that there were
extra-judicial executions and hasty and secret cremations rendering the State
liable for action. These petitions were largely relied on a press note of 16th
January 1995 by the Human Rights Wing of the Shiromani Akali Dal under
the caption ―Disappeared‖ ―cremation ground‖. The note alleged that the
Punjab Police had cremated a large number of human bodies after labeling
them as unidentified. The Supreme Court after examining the report
submitted to the Court by Central Bureau of Investigation (CBI), relating to
cremation of dead bodies observed that report indicates 585 dead bodies
were fully identified, 274 partially identified and 1238 unidentified. The
report discloses flagrant violation of human rights on a large scale. 15 On 12
December 1996 the Court requested the Commission to have the matter
examined in accordance with law and determine all the issues related with
the case. The Commission granted in some cases compensation amounting
of Rupees Two Lakh Fifty thousand (Rs. 2,50,000/-) to the next of kin of the
89 deceased persons.
Thus, Human rights are basic, inherent, immutable and inalienable right to
which a person is entitled simply by virtue of being born as a human.
Constitution and Legislations of civilized country recognize them since they
are so quintessentially part of every human being. In a democratic society,
all state institutions whether police department, legislature, executive and
judiciary must protect human rights. Constitution and Legislations of
13
AIR 1999 SC 340
14
Writ Petition (Crl.) No. 497\95, Paramjit Kaur v. State of Punjab and others and Writ
Petition (Crl.) No. 447\95, Committee for Information and Initiative on Punjab v. State of
Punjab.
15
http://indiankanoon.org/doc/1538237/ accessed as on 19.10.2014
civilized country recognize them since they are so quintessentially part of

every human being. No state can deprive an individual of their basic and
natural rights without due process of law.
REFERNCES
Books Referred:
1. P.B. Mukherji, “The Hindu Judicial System - The Cultural Heritage of India‖,
Vol.ll,, Tagore Law lectures (Calcutta: Eastern Law House. 1999)
2. R.P Kataria “Commentary on Human Rights‖ First Edition, Orient Publishing
Company, 2011
Websites Referred:
1. http://indiankanoon.org/doc/1538237/
2. http://www.ohchr.org/EN/ProfessionalInterest/Pages/CoreInstruments.aspx
accessed on 19.10.2014
3. http://shodhganga.inflibnet.ac.in/bitstream/10603/9617/12/12_chapter%202.pdf
4. http://www1.umn.edu/humanrts/education/FDR4freedoms.html
DOMESTIC VIOLENCE IN INDIA INTERNATIONAL

FRAMEWORK: ARE WE IN ACCORDANCE?
Arun Bhadauria*
INTRODUCTION
“Bride tormented to death for not giving dowry‖, ―wife succumbed to death
for not ripening male child‖, ―old parents molested by son over not
transferring property‖……….
Whirl down any random newspaper or access to some moronic news
channel and you would easily come across such drastic cases notifying the
anecdotes of domestic violence. These news reports are fretish supplement
to enormous percentage of untold and unreported cases of domestic
violence. In fact, ponder upon the instances of domestic violence which
might be occurring in your own ménage or vicinity. We witness but feel
reluctant to move even one step forward.
It is an ignominy to see that in country like India which is all set in the race
to become an superpower; behind lakhs of closed doors, crores of people
face severe agony, abuse, trauma and sometimes even a predestined demise.
This domestic issue is no more domestic; crossing all social classes,
genders, racial lines and age groups. It is becoming a legacy being passed on
from one generation another.
Since times immemorial problem of domestic violence has become intrinsic
part of our society. It has become a tainted tool used by victimizer on victim
to exercise unnecessary supremacy or influence, to exploit someone for
personal benefits; on various occasions, psychological problems and social
influence also add to the vehemence.
___________________
* Student, Gujarat National Law University, Gandhinagar, Gujarat
The present writing emphasis on various aspects of domestic with utter

concentration on reasons behind still existing and multiplying state of
abusive affair even after the enactment of much hyped Domestic Violence
Act 2005 and why it has failed to curb the eruption of unwanted stigma.
Heed has also been paid to the existing international treaties on domestic
violence and compliance of India with the same.
DOMESTIC VIOLENCE: IDENTIFYING THE PROBLEM

Domestic violence, also known as domestic abuse, spousal abuse, battering,
family violence, and intimate partner violence (IPV), is defined as a pattern
of abusive behaviours by one partner against another in an intimate
relationship such as marriage, dating, family or other such cohabitation.1
World Health Organization (WHO) has defined domestic violence as ―the
range of sexually, psychologically and physically coercive acts used against
adult and adolescent women by the current or former male intimate partner.
Violence is often not restricted to the current husband, but may extend to
boyfriends, former husbands and other family members such as parents,
siblings and in-laws.‖2
Domestic violence could be widely categorize into following fragments:
 "Physical abuse" is any illicit and coercive conduct of victimizer which
causes to a victim bodily pain, to cause bodily pain, injury or peril to
life, limb, or health or dementing the health or growth of the aggrieved
person.
 "Sexual abuse" includes any conduct of victimizer which causes sexual
torment to aggrieved person including penetrative sexual assault, non -
penetrative sexual assault, seeding unwanted pregnancy, causing STDs
1
Lyn Shipway, Domestic Violence: A Handbook for Health Professionals (London:
Routledge, 2004), 2.
2 www.who.int/mediacentre/factsheets/fs239/en/, accessed 16 march, 2014.
including HIV and other heinous act outraging modesty and dignity of
women
 "Verbal and emotional abuse" can be amplified into insults,
humiliation, name calling, inflicting verbal torture inflicted upon women
for not having a child or a male child; and repeatedly threat a person to
cause harm to his near ones or any person in whom the aggrieved is
interested.
 "Economic abuse" is a form of abuse when one intimate partner has
control over the other partner's access to economic resources. Economic
abuse may involve preventing a spouse from resource acquisition,
confining the amount of resources to use by the victim, or by exploiting
economic resources of the victim. The motive behind preventing a
spouse from acquiring resources is to diminish victim's capacity to
support his/herself, thus forcing him/her to depend on the perpetrator
financially, which includes preventing the victim from obtaining
education, finding employment, maintaining or advancing their careers,
and acquiring assets. In addition, the abuser may also put the victim on
an allowance, closely monitor how the victim spends money, spend
victim's money without his/her consent and creating debt, or
completely spend victim's savings to limit available resources.3
According to United Nation Population Fund Report, around two-third of

married Indian women are victims of domestic violence and as many as 70
per cent of married women in India between the age of 15 and 49 are
victims of beating, rape or forced sex. In India, more than 55 per cent of the
3
Adrienne Adams et al., "Development of the Scale of Economic Abuse: Violence Against
Women‖ (New york: penguin, 2008), 563-588.
women suffer from domestic violence, especially in the states of Bihar,

U.P., M.P and other northern states.4
The point to ponder over here is, despite of having such a tedious legislation
specially dealing with the issue of domestic violence, the problem not
subsist but is increasing at higher rate. So what‘s this Protection of Women
Against Domestic Violence Act 2005? Is it effective enough to curb down
the malady of domestic violence, and if not then why? Taking a terse
glimpse of this enactment would make situation lucid further.
Protection Of Women Against Domestic Violence Act 2005: Intrinsic

analysis with a brief study
In Indian Penal Code we do have umpteen sections dealing with various
types of injuries to a person which no doubt includes the victims of
domestic violence. In 1983 domestic violence was recognized as a specific
criminal offence by instigating section 498-A; though, government had not
even partially been successful in curbing this evil as section 498-A only
dealt with the cruelty inflicted upon a women by his husband or in-laws.
Violence incurred by other close one‘s such as victim‘s own family
members including siblings, parents; and other persons residing under same
roof; it even went on excluding the person dating victim or person sharing
any other sanguinity with victim. IPC including section 498-A were also
incapable of dealing with kinds of abuse other than physical. Considering all
this aspect government felt the need of bringing this issue into single
umbrella; and thus came into being the Domestic Violence Bill 2011, ―To
protect the rights of women who are victims of violence of any kind
occurring within the family and to provide for matters connected therewith
4
―Two-third married Indian women victims of domestic violence: UN,‖ Indian Express,
October 13, 2005, accessed March 16, 2013,
http://expressindia.indianexpress.com/news/fullstory.html.
or incidental thereto.‖5 It was enacted in 2005 as the Protection Of Women

Against Domestic Violence Act 2005. Some of the important features of
this enactment are analysed and critically reviewed below to delineate the
principle picture of this essay.
The Domestic Violence Act 2005 has been bestowed with the wide
definition of the domestic violence which states that, ―For the purposes of
this Act, any act omission or commission or conduct of the respondent shall
constitute domestic violence in case it-
(a) Harms or injures or endangers the health, safety, life, limb or wellbeing,
whether mental or physical, of the aggrieved person or tends to do so and
includes causing physical abuse, sexual abuse, verbal and emotional abuse
and economic abuse; or
(b) Harasses, harms, Injures or endangers the aggrieved person with a view
to coerce her or any other person related to her to meet any unlawful
demand for any dowry or other property or valuable security; or
(c) has the effect of threatening the aggrieved person or any person related
to her by any conduct mentioned in clause (a) or clause (b); or(d) otherwise
injures or causes harm, whether physical or mental, to the aggrieved
person.‖6
This expression is very much exhaustive along with being certainly explicit,
except of the definition of‘ ‗respondent‘ and ‗aggrieved‘. These terms are
defined as follow:
"Respondent" means any adult male person who is, or had been, in a
domestic relationship with the aggrieved person and against whom the
aggrieved person has sought any relief under this Act.7
―Domestic relationship‖, for convenience, means a relationship between two
persons who live or have at any point of time, lived together in a shared
5
The Domestic Violence Bill, 2001.
6
The Protection of Women Against Domestic Violence Act, 2005 (Act 43 of 2005).
7
Ibid.
household, when they are related by consanguinity, marriage, or through a

relationship in the nature of marriage, adoption or are family members
living together as a joint family.8
Now, if we strictly interpret this definition of ‗respondent‘ then it excludes
the female counterparts who may inflict torture on aggrieved; but Delhi
High court in one its ruling held that ―It is common knowledge that in case a
wife is harassed by the husband, other family members may also join him in
treating the wife cruelly and such family members would invariably include
female relatives as well."9
"If restricted interpretation is given...the very purpose for which this Act is
enacted would be defeated. It would be very easy for the husband or other
male members to frustrate the remedy by ensuring that the violence on the
wife is perpetrated by female members,"10 a bench comprising justices A.K.
Sikri and Ajit Bharioke said.
Interpreting the provisions the Act, the court said that 'relatives' included not
only male but also female members of a family.
"Various provisions in the DV Act provide for clinching circumstances
indicating that female relative was clearly in the mind of the legislature
when it comes to filing of the complaint/application by a wife or a female
living in a relationship in the nature of marriage,"11 the Bench said.
The judgement was passed on the plea of a woman challenging order of a
trial court initiating proceedings against her in a case of alleged domestic
violence.
8
Ibid
9
―Now, women can also be prosecuted in domestic violence cases,‖ India today, June 4,
2010, accessed on March 16, 2013,
http://indiatoday.intoday.in/story/now,-women-can-also-be-prosecuted-in-domestic-
violence-cases/1/100256.html
10
Varsha Kapoor vs Uoi & Ors. AIR 2010 SC (6) 567
11
Ibid
We have thoroughly gone through the enwiden scope of this Act; but
situation is not as manageable as it seems, in spite of having provided such a
wide scope to this Act, some loopholes still prevails.
First of all, this enactment has limited the purview of domestic violence to
‗share household‘ which means that domestic violence is assumed to be
inflicted only inside four walls of chores. This concept possess vital hiatus
in the sense that it has ignored domestic violence which occurs in other
relationship such as ‗dating ‗. Such relationship generally exist between
teenagers who are still at rudimentary stage of life; and worsen situation for
any random reason may instigate one to unload violence on other, victim
particularly being a girl. of course we don‘t have any recognized status for
such a relationship but the question is should be left the victims affected in
such cases helpless?
Secondly we have ignored violence foisted on victim in workplace, which
may be in the form of sexual, verbal or economical abuse. No doubt we do
have legislations like IPC and CPC dealing with such issue, but the moot
point to pay heed is the core purpose of enacting a provision like Domestic
violence Act which is to stop exploitation and discrimination of women at
home or even at work place where she does spent most of the time of her
day.
Third is a failure to recognize a kind of violence inflicted upon aggrieved
women by state, we will discuss this in detail in the next section where we
will also highlight India‘s stand on CEDAW and its reservation on Article
29 of CEDAW.
Fourth point to consider over here is female biased approach of this Act and
its failure to address the aspect of domestic violence inflicted upon men.
Domestic violence on man is completely ignored by limiting the definition
of ‗aggrieved‘ person to women.
But Indian laws against domestic violence blatantly deny protection to men
against any form of domestic abuse, and every year, over 56,000 married
men commit suicide due to verbal, emotional, economic and physical abuse
and legal harassment.12 Some facts are not paid heed while enacting this
legislation which made it utterly biased towards women.
Unbiased research on domestic violence the world over shows that:
 Domestic Violence a gender neutral subject
 Men and children may become victim
 Men and children seldom report the incident when they are tortured by
their wives/girlfriends and mothers respectively.
 Biased media coverage (e.g. Suicide of young married women is
accounted as dowry death, and a young married man committing suicide
is attributed to financial/family problems or some other mysterious
reasons).
 Politicians and bureaucrats get no incentive in remitting domestic
violence by women against men, children and fellow women.
INTERNATIONAL PERSPECTIVE ON DOMESTIC VIOLENCE
Domestic violence is recognized in international law as a violation of human

rights. Although early international treaties only provided protection against
domestic violence implicitly, in the 1990‘s domestic violence began to
receive more explicit attention with the passage of the General Comment
No. 19 by the Committee on the Elimination of Discrimination Against
Women (1992) and the Declaration of Elimination of Violence Against
Women (1993).13 Here we would consider both of these significant
international treaties and India‘s stand on them.
12
Saraswati Iyyer, ―Critical Review of Domestic Violence Act,‖ utthan, March 12, 2012,
24.
13
―UN Treaties on Domestic Violence‖ last modified October 26, 2012,
http://www.stopvaw.org/un_treaties_and_conventions.html.
The Convention on the Elimination of Discrimination Against Women

(1981)
The Convention on the Elimination of all Forms of Discrimination against
Women (CEDAW) is an international treaty adopted in 1979 by the United
Nations General Assembly. Described as an international bill of rights for
women, it came into force on 3 September 1981. Over fifty countries that
have ratified the Convention have done so subject to certain declarations,
reservations, and objections, including 38 countries that rejected the
enforcement article 29, which addresses means of settlement for disputes
concerning the interpretation or application of the Convention.14
Though, CEDAW does not explicitly address the issue of domestic violence
but its agenda shares all sorts of provisions opposing discrimination against
women including domestic violence; which are as follow:
1. Demand women‘s participation in decision-making at all levels
2. Rejection of violence against women as it impedes the advancement of
women and maintains their subordinate status
3. Equality of women and men under the law; protection of women and girls
through the rule of law
4. Demand security forces and systems to protect women and girls from
gender-based violence
5. Recognition of the fact that distinct experiences and burdens of women
and girls come from systemic discrimination
6. Ensure that women‘s experiences, needs and perspectives are
incorporated into the political, legal and social decisions that determine the
achievement of just and lasting peace15
11 ―Declarations, Reservations and Objections to CEDAW,‖ last modified March 11, 2009,
http://www.stopvaw.org/un_treaties_and_conventions.html.
15
―Intersection between SCR 1325 and CEDAW,‖ accessed March 17, 2014.
http://www.gnwp.org/wp-content/uploads/2010/11/Cedaw-1325-1820-synergy.html.
Here 2, 3, and 4 provisions explicitly address the violence against women

and rejection of the same by any means.
India is one among more than 50 countries who have ratified CEDAW. Like
other countries India has kept certain reservations and exceptions on while
ratifying this convention. India had ratified this convention with exception
on Article 5(a), Article16 (1) & (2) and Article 29.
First clause on which India disagreed was Article 5(a), which states that,
―state Parties shall take all appropriate measures to modify the social and
cultural patterns of conduct of men and women, with a view to achieving
the elimination of prejudices and customary and all other practices which
are based on the idea of the inferiority or the superiority of either of the
sexes or on stereotyped roles for men and women.16India‘s plea on this was
in an intensely diverse country like India which owes its cultural and
traditional practices since time immemorial it is not feasible to interfere or
override the customary practices.
While Article 16(1) deals with eliminating all sorts of discrimination with
respect to marriage and family relations, which is one of the four
exceptions.
Regarding Article 16 (2) which states that, ―The betrothal and the marriage
of a child shall have no legal effect, and all necessary action, including
legislation, shall be taken to specify a minimum age for marriage and to
make the registration of marriages in an official registry compulsory.‖ 17 The
Government of India declared that, though, they support the registration of
marriage but in a vast country like India with diverse culture, language and
religion this seems impractical. This stand of India looks quite objectionable
as it has not agreed upon the clause specifically dealing with elimination of
16
United Nations General Assembly, Resolution 34, ―Convention on the Elimination of All
Forms of Discrimination against Women,‖ September 3, 1981.
http://www1.umn.edu/humanrts/instree/e1cedaw.htm.
17
Ibid.
child marriage and registration of marriage, reasons might had been any.
India‘s reservation on Article 16(1& 2) shows her lackadaisical approach to
the issue of domestic violence caused by coercive marriages.
Moreover India has kept her reservation upon first paragraph of Article 29,
which states that, ―Any dispute between two or more States Parties
concerning the interpretation or application of the present Convention which
is not settled by negotiation shall, at the request of one of them, be
submitted to arbitration. If within six months from the date of the request for
arbitration the parties are unable to agree on the organization of the
arbitration, any one of those parties may refer the dispute to the
International Court of Justice by request in conformity with the Statute of
the Court‖18. India‘s non-acceptance of Article 29 elucidate that that they do
not want any external force to intervene in there legislation process, hence
keeping their liberty to frame their laws as they find feasible. This non
willingness of India is then reflected during the procedure of making the
laws and implementing them.
Indian government signed and ratified this convention after ten years of its
inception. Such a big leap in ratification of a significant convention dealing
with the elimination of all sorts of discrimination against women reflects its
lethargic approach regarding an issue of such a serious concern.
Declaration of Elimination of Violence Against Women (1993)
The Declaration on the Elimination of Violence Against Women was
adopted without any vote by the United Nations General Assembly in its
resolution 48/104 of 20 December 1993. Contained within it is the
recognition of "the urgent need for the universal application to women of
the rights and principles with regard to equality, security, liberty, integrity
and dignity of all human beings.‖19 The declaration is often seen as
18
ibid.
19
United Nations General Assembly, Resolution 48, ―Declaration on the Elimination of
Violence Against Women,‖ December 20, 1993,
compatible to, and an empowering of, the work of the Convention on the
Elimination of All Forms of Discrimination against Women. Following this
since 1993, 25 December of each year is celebrated as the ‗International
Day for the Elimination of Violence against women‘.
Domestic violence has been defined in its utmost comprehensive scope in
the Article 1 and Article 2 of this resolution.
Where upon, Article 1 states that, ―For the purposes of this Declaration, the
term "violence against women" means any act of gender-based violence that
results in, or is likely to result in, physical, sexual or psychological harm or
suffering to women, including threats of such acts, coercion or arbitrary
deprivation of liberty, whether occurring in public or in private life.20
Hence covering the offence of domestic violence against women in its
utmost wider sense, this resolution speaks about any gender based violence
on women. It is important to consider that where the Domestic Violence Act
2005 covers all form of domestic violence against women, but the
expression ‗gender based violence‘ is not explicitly endowed. We can also
think upon installing expression like ‗arbitrary deprivation of liberty of
women in her public or private life‘. By this move we could stretch the
scope of Domestic Violence Act 2005 outside the four walls of her chores;
thereby making it applicable to the work place or educational institutions ;
thus protecting her against all sorts of domestic violence occurring in public
sphere.
Article 2 states that, ―Violence against women shall be understood to
encompass, but not be limited to, the following:
a) Physical, sexual and psychological violence occurring in the family,
including battering, sexual abuse of female children in the household,
dowry-related violence, marital rape, female genital mutilation and other
http://www.un.org/documents/ga/res/48/a48r104.htm.
20
ibid.
traditional practices harmful to women, non-spousal violence and

violence related to exploitation;
b) Physical, sexual and psychological violence occurring within the general
community, including rape, sexual abuse, sexual harassment and
intimidation at work, in educational institutions and elsewhere,
trafficking in women and forced prostitution;
c) Physical, sexual and psychological violence perpetrated or condoned by
the State, wherever it occurs.‖21
Here first clause deals with the physical and sexual abuse of women in
household by any family member. While second clause speaks about
psychological, sexual or physical violence inflicted upon women in general
community. Interpreting second clause in its pliable manner we could see
that it provides patronage to women against domestic violence foisted by
someone who does not share household with her. i.e. person having intimate
or dating relationship with the aggrieved such as her boyfriend. In addition
to it also provide protection against women from prostitution. Here it is a
matter of qualm of shame that in some Indian villages, girls are injected into
prostitution by their own families - a tradition that began in the name of
religion but is now continued as an instrument to earn money. Third clause
deals with the violence perpetrated by the state itself. Now the question how
state can condone could be a party to domestic violence? No doubt domestic
violence is perpetrated by the near ones or family members or person known
to the aggrieved but state could be accomplice in occurrence of domestic
violence by not eradication the unjust traditions and culture prompting
domestic violence.
In March 2003, during a meeting of the UN Commission on the Status of
Women, India opposed to clause(c) of Article 2 expressing its non-
compliance to include itself within the purview of one who could perpetrate
21
ibid.
violence on women. India‘s this hesitation is quite oblivion with its

commitment to the best possible eradication of domestic violence against
women.
CONCLUSION
In this writing we have come across the major embrasures in the legislation
of Domestic Violence Act 2005 which assures women, a safeguard against
all kind of abuses and odds. Maintain the fact that this study was more
inclined toward the side of women (domestic violence on women) it is
considerably affirmed that domestic violence is a gender neutral issue and it
is imperative on the part of legislation to pay heed to this aspect; along with
this certain steps to improve and precise the scope of Domestic Violence
Act are much welcome. Furthermore going through the two major
conventions addressing the issue of domestic violence against women, it
could be surmise that we are still far behind in adhering to the international
protocols and this hiatus should be filled invariably as soon as possible by
the government to fulfill its commitment of eradicating the domestic
violence to its root.
CONSUMER PROTECTION IN THE INDUSTRIAL

SECTOR
Anjaneya Singh*
Arup Sinha**
INTRODUCTION
Consumer protection in India has been guaranteed by the Consumer

Protection Act. This Act is a result of the impact of the changing trends in
the national economies of the world. The Act introduced a quasi judicial
consumer redressal mechanism at all levels.
After the 1991 economic reforms, the Indian economy as well as the
Indian market was thrown open to the world. The process of globalization
began with much hue and cry and a wide range of products were introduced.
These products were terra incognnita for the Indian consumers. They had
never encountered such products and had never imagined such items to
exist. However, where there are roses, there are thorns also. With the
introduction of these new products, the Indian consumers became much
more susceptible to exploitation. Hence, the importance of the Consumer
Protection Act 1986, escalated quickly.
The Act was introduced with the primary aim of safeguarding the
rights of a consumer. Added to that, it keeps a check on the unfair trade
practices opted by manufacturers as well as sellers. Section 2(d) defines a
consumer of goods in the following words:- a consumer is one who buys or
agrees to buy any goods for a consideration, which has been paid or
promised or partly promised, or under any system of deffered payment.
_______________________
*Student, Chanakya National Law University, Patna, Bihar
** Student, Damodaram Sanjivayya National Law University, Visakhapatnam, Andhra
Pradesh
Similarly , a consumer for services exists. Services refer to those intangible

activities which are performed by a person or machine to provide
satisfaction to another.
To avail the benefits of the Consumer Protection Act , the first step a
consumer needs to do is file a complaint. A complaint may be made for
unfair trade practice, restrictive trade practices, manufacturing defects or
service deficiencies. These will be elucidated in the project. Then the
complaint is folllowed by investigation and if the consumer is found to be
wronged, he shall be given redressal.
The project topic stresses on the area of the Industrial sector.
Industrial sector may be defined as that branch of factories or industries
concerned with providing goods as well as services to the consumer. These
goods may range from food items like cereals, biscuits and chips to
cosmetic products like creams, gels or powders or even machinery like
computers, mobiles or televisions. The services provided also include a vast
list of activities ranging from banking, financing, transport ,railways etc.
These services can be coined under the term ‗Tertiary sector‘.
HYPOTHESIS
According to the researcher, Consumer Protection is extremely necessary in
the Industrial Sector. This is so as it is this sector which is responsible for
the production of goods and is in direct contact with consumers and can
increase the chances of exploitation by multiple folds. Most of us are aware
of the case of Donoghue v. Stevenson where the consumer suffered nervous
damage due to a defect of the producer- leaving a snail inside a bottle. In
order to safeguard the rights of a consumer and to prevent such violation the
future, the Consumer Protection Act 1986 was introduced. The remedies
and remedies specified by it are up to date with the requirements of the
society and help make it a better place for consumers.
RESEARCH METHODOLOGY
The researcher has used both doctrinal and non doctrinal methods of
research. It has been conducted via books, journals and articles available in
the library and furthermore, a questionnaire has been used to conduct a
survey across 50 people to come to a conclusion.
INDUSTRIAL SECTOR- DEFINITION & DISTICTION
In light of the Project topic, ―Consumer Protection in the Industrial Sector‖,

this chapter deals with what the industrial sector really is and how broad is
its sphere.
An Industry means any business, trade, undertaking, manufacture or calling
of employees and includes calling, service, employment, handicraft or
industrial avocation of workmen1. These industries can be classified in to
three categories- Primary, Secondary and Tertiary. The primary industries
are concerned with the extraction of raw materials from the Earth. The
materials provide the bedrock on which other industries can work on.
Examples of this type may be fisheries, agriculture, mining, poultry etc. the
Secondary industry is concerned with the manufacturing and selling of
goods to the consumer while the tertiary industry is concerned with the
provision of services like communication, banking, insurance etc.
Correspondingly, an Industrial sector is one of the three sectors that makes
up the Country‘s economy. An amalgamation of the secondary and tertiary
sector, this sector is primarily concerned with the conversion of raw
materials into finished goods for consumption. This sector is a cluster of
similar industries performing similar jobs in simple words , an Industry
refers to a field or organization involved in the production of goods or
extraction of raw material or provision of services. It has been defined under
1
www.citehr.com/1636-legal provisions under industrial disputes act html. 10:00 PM 04-
09-13
Section 2J of the Industrial Dispute Act via the judgment of the Supreme
Court in the Bangalore Water supply vs A. Rajappa2.
Since the Industrial Sector is concerned with the manufacturing and selling
of goods and services and is in direct contact with the consumers, chances
of malpractices arise. This may be in the manufacturing cycle where
defective products may be produced, the product may be of poor quality or
deficiency in service coupled with the selling stage where misleading
advertisements, hoarding of goods or exuberant prices for goods and
services may be charged. These will be discussed in the further chapters to
come.
GOODS, SERVICES & THE CONSUMER

As mentioned in the previous chapter, the topics that will be elucidated in
this project are the – what are goods and services and who particularly is a
consumer in the economic market.
A consumer has been defined under Section 2(d) of the Consumer
Protection Act 1986 as- a consumer means any person who (i) buys any
goods for consideration which has been paid or promised or partly paid and
partly promised, or any system of deferred payment and includes any user of
such goods other than the person who buys such goods for consideration
paid or partly promised or any system of deferred payment, but does not
include such goods for resale or commercial purpose; or (ii) hires any
service for consideration which has been paid or promised or partly paid and
partly promised, or any system of deferred payment and includes any user of
such services other than the person who buys such services for consideration
paid or partly promised or any system of deferred payment, but does not
include such services for resale or commercial purpose.3
2
AIR 1978 SC 548, AIR 1978 SC 548;
3
Consumerlaw.in/who-is-consumer/ 10:54 AM IST 29/09/13
In simple words, a consumer is a person who pays a consideration( any legal

object) in return for a good or service to either a trader or a manufacturer. A
trader, according to 2(1)(q) of the Act means: any person who sells or
distributes an goods for sale and includes the manufacturers thereof, and
where such goods are sold or distributed in package form, includes the
packer thereof. Similarly, a manufacturer under Section 2(I)(j) refers to a
person who (i) makes or manufactures goods or parts thereof; or does not
make or manufacture any goods but assembles parts thereof made or
manufactured by others and claims the product to be a goods manufactured
by himself; or (iii) puts or causes to be put his own mark on any goods
manufactured by other manufacturers and claims such goods to be
manufactured himself.4
A consumer being at the fag end of the manufacturing-selling chain, has to
bear the maximum brunt of the wrongdoings of any person superior to him
in the mentioned hierarchy.
A good has been defined under the Sale of Goods Act 1930, Section 2(7) as
every kind of movable property other than the actionable claims and money
and includes stock and shares, growing crops, grass and things attached to
or forming part of the land which are agreed to be severed before sale or
under contract of sale5. As mentioned previously also, these goods can be
food stuffs like Bread, Chips, Aerated drinks, Tinned food etc, textiles,
cosmetics like nail polishes, facial creams , perfumes and machines like
fridges, cars, mobiles, photocopiers etc.
The Section 2(1)(o) of the Consumer Protection Act 1986 provides that
‗Service‘ means service of any description which is made available to
potential users and includes the provision of facilities in connection with
banking, financing, insurance, transport, processing, supply of energy,
4. Consumer Protection Jurisprudence- V. Balakrishnan Eradi- LexisNexis Butterworth

Wadhwa- Pg.77
5
Consumer Protection Jurisprudence- V. Balakrishnan Eradi- LexisNexis Butterworth
Wadhwa- Pg. 75
housing, entertainment, amusement but does not include service free of

charge or under contract of personal service6.These services are intangible
in nature and can only be judged by the consumer satisfaction.
How a consumer is exploited will be the topic of concern in the next
chapter.
CONSUMER EXPLOIATION
As mentioned in the introduction, due to the process of globalization and
with the availability of a vast number of products, the chances of consumer
exploitation has greatly increased. Eventhough the government has tried to
safeguard the rights of the consumer, till date they remain vulnerable.
This susceptibility is primarily due to the lack of awareness of rights as a
consumer. In the rural areas, because of poverty, unemployment and poor
literacy levels, the people are deprived the benefits of the Consumer
Protection Act 1986 while in the urban areas, their life is too fast paced to
care for these serious matters which prima facie, appear trivial for the
urbanites.
This exploitation has been morphed into many different forms, some
appearing so innocuous that they leave consumers in a completely gullible
state. They may be in a complex form of advertisements claiming cosmetic
superiority or physical growth to simple forms such as adulteration of
vegetable by your neighbouring vendor.
There was a time when the society had to abide to the words ‘Caveat
Emptor‘, however, with the changing tune and tempo of the society and
laws, the words ‗Caveat Venditor‘ have come into place.
DEFECT- Under Section 2(i)(f) of the Consumer Protection Act, a defect
has been defined as ― any fault, imperfection or shortcoming in the quality,
quantity, potency, purity or standard which is required to be maintained by
6
Wadhwa-Pg. 75
or under any law for the time being in force or as is claimed by the trader in
any manner whatsoever in the relation to any goods7. The examples of
defects have been cited below on the next page.
1. Defective Photo Copy Machine- Handicrafts & Handlooms exports

Corpn. Of India vs HCL ltd.8
Facts: the complainant alleged that since the purchase of the
machine, the same did not function properly resulting in loss and
damage. The respondents had guaranteed five year warranty but
failed to remove any such claimed deficiency in the product.
Held: the Court ruled in favour of the consumer. The respondent had
to pay RS. 40000 as damages to the plaintiff.
2. Defective Fridge- Voltas Ltd. Vs. Dilip Kumar Sil9
Facts: the Plaintiff purchased a fridge and while using it, he found
that it had some inherent defects. Even after repairs, the product
continued to give troubles. The cooling system was found to be
defective.
Held: The Court ruled in favour of the plaintiff and declared that
though he wasn‘t entitled to a brand new fridge, the cooling system
of the fried would be replaced by the defendant.
3. Manufacturing defect in shoes- S. Durga Prasad Rao vs. Bata Shoes
Store and association.10
Facts: the complainant purchased a pair of shoes for Rs.949.50. He
purchased the good as he was led to believe by the advertisements of
7
Wadhwa-Pg.338
8
Wadhwa-Pg.342
9
Voltas Ltd v Dilip Kumar Sil(1998) 6 CTJ 393
10
Wadhwa-Pg.352
the respondent that the shoes would be of standard quality. After 2

weeks, the shoes started ripping at the front.
Held: the Court ruled in favour of the Consumer and declared that
along with Rs.949.50, an amount of Rs.2000 would also be paid by
the respondent to the consumer.
Donoghue v Stevenson11
Facts: In a bar, a couple brought a gingerbeer to drink. On finishing
the bottle, they found a decomposed body of a snail inside the bottle
and a case was filed.
Held: The court stated that it was not the seller, rather the
manufacturer who was responsible for supplying the defective
product to the couple.
4. Wrong Advertisement- Murray & Co. vs. K. Sankaralingam12

Facts: Murray & co. were auctioneers. They issued a catalogue
containing the list of articled that was to be sold. The Complainant
bought a bed for Rs.2400 which was mentioned to be 6x4 ft.
However, on examination, it was found to be 6x3 ft.
Held: The Rosewood bed with wrong specifications was asked to be
returned by the consumer in return for compensation for the product.
UNFAIR TRADE PRACTICE- SECTION 2(1)(R) of the Consumer
protection Act defines it as a trade practice which, for the purpose of
promoting sale, use or supply of any goods or for the provision of any
service, adopts any unfair method or unfair or deceptive practice including
any of the following practices13-
11
Law of torts- S.K. Kapoor Allahabad Book Agency
12
Murray and Co v K Sankaralingam (2002) I CPJ 426
13
Wadhwa-Pg.72
1. Falsely represents that the goods are of a particular standard, quality,

quality, grade, composition or style;
2. Falsely represents the services to be of a particular standard, quality
or grade;
3. Falsely represents any rebuilt, second hand, renovated model as new;
4. Falsely represents goods to have a particular sponsorship, uses or
benefits which it does not.
5. Makes false or misleading statements concerning the usefulness of
the good.
6. Gives to the public a warranty or a product life which has been not
tested or verified.
RESTRICTIVE TRADE PRACTICE- SECTION2(1)(nn) defines it as any

trade practice which requires a consumer to buy, hire or avail of any goods
or, as the case may be, services as a condition precedent for buying, hiring,
or availing of other goods and services. Technically, this type of sales is
called tie up sales in which a consumer has to buy some goods or services
which he does not want to buy in order to purchase the intended good or
service.14
DEFICIENCY IN SERVICE- when a service is rendered to a consumer and
the same does not provide the said satisfaction as claimed by the provider,
or is not up to the standards as stated, it can be termed as deficiency of
service.
CHARGING EXCESSIVE PRICE- A complaint may be made against a
trader who has charged a price in excess of the MRP stated. This is a
common means of exploitation these days and can be seen mostly I the
Aerated drinks bracket of goods.
14
Wadhwa-Pg.73
HAZARDOUS GOODS- The consumer protection act does not describe

what is ‗hazardous‘ but a consumer can file a case if he is not informed of
the capacity of a good to cause physical damage to him upon usage.
Hazardous goods can be deodorants which are highly combustible in nature.
FAILURE TO DELIVER GOODS-M/S Anil textiles vs. m/s Anjana
Transport and co. and Anor15
Facts: The appellant engaged in a business of manufacture and sale of
synthetic and cotton cloth and dispatched 18 cases of synthetic cloth worth
Rs.95,568 from Kishangarh to Calcutta. On enquiry with the Calcutta office,
even after repeated demands, the consigned goods weren‘t delivered. The
transporter had criminally misappropriated the goods.
Held: the commission directed the transport company to pay Rs. 25,000 as
compensation and mental harassment.
UNDERWEIGHT GOODS- Proctor and Gamble home products Ltd. Vs Raj
Dev Bhardwaj and Anor16
Facts: The complainant purchased one packet of Ariel Super Soaker
detergent. According to the advertisement, the depicted weight was 1kg plus
125 grams extra. However, on checking it was found to be only 1075gms.
Held: the Court held Ariel manufacturers guilty and charged them Rs.2000
as a fine.
These are a few cases elaborated and cited in order to bring into light the
blatant exploitation of the consumers in the market and how effective can
the courts be considering the capacity to provide relief.
RIGHTS & REDRESSAL

Not only does Consumer Protection include educating consumers about
their rights and responsibilities, but also helps getting their grievances
redressed. This Consumer Protection cannot solely exist with the support of
15
M/s Anil textiles v M/s Ajanta Transport Co and Anor(1993) 1 CTJ 1032 (NCDRC)
16
Procter and Gamble Home Products Ltd v Raj Dev Bhardwaj and Anor(1997) 5 CTJ 696
judicial machinery. Rather, it needs the active involvement of consumers

also.
Furthermore, it is not just the consumers who benefit from fair trade
practices but on the long run, the businesses also come over to the winning
side. This is so because of the nature of the consumers. Once satisfied by the
product or service, they are bound to come again, thereby increasing
goodwill and brand name.
Moving on to the legal protection provided to Consumers, though the
Consumer Protection Act was a class apart, other laws also exist. Some of
them are-
1. The Contract Act 1982 – This act lays down the conditions under
which promises made by the parties will be binding on each other.
This act also specifies remedies in case of breach of contract.
2. The Sale of Goods Act, 1930 – the Act provides some safeguards
and reliefs to the buyers of the goods in case the goods do not
comply with express or implied conditions and warranties.
3. The Essential Commodities Act, 1955 – the Act aims at controlling
the production, distribution and supply of essential commodities and
keeping a check on the inflationary trend in prices of these goods.
4. Prevention of Food Adulteration Act 1954 – this Act aims at
providing purity in the consumption of food and prevention of
adulteration in food items.
5. Trade Marks Act, 1999 – this act has repealed and replaced the
Trade and Merchandise Marks Act, 1958 and aims on preventing
fraudulent marks on products and ensures originality in the products.
6. The Bureau of Indian Standards Act, 1986 – This Act established the
Bureau of Indian Standards and gave it two major functions,
formulation of quality standards and certification through BIS
certification. It is through this Act that the ISI mark came into being.
Added to these legal provisions , a consumer also has specific legal rights.
They are-
1. Right to Safety : the consumer has a right to be protected against a
good which might be hazardous in nature to life and health. For eg-
Wires manufactured, not complying with the norms of the
government, may pose a serious threat if overheated.
2. Right to Information : the consumer has the complete right to know
about the product he intends to buy including the composition,
quantity, directions of use, price, date etc.
3. Right to Choose : The consumer, under this right has the right to
choose from a wide range of products and brands and is not to be
bounded via a monopolistic market.
4. Right to be Heard : the consumer has the right to have a Locus
Standi in the court in case of dissatisfaction with a good or service. It
is implied that a consumer can approach the courts without any
hindrance in case of violation of a right.
5. Right to seek Redressal - the consumer has a right to seek
redressal in case the good or service falls short of his expectations. A
number of reliefs are provided to a consumer which has been
elucidated in the later stages of the chapter.
6. Right to Consumer Education – the Consumer has the right to
acquire knowledge and be well informed of his rights. Consumer
organizations are playing an important role in this sphere and are
enlightening consumers with respect to their rights and remedies.
If a consumer manages to exercise each of these Rights and is aware of the

economic market, he stands invincible considering the stand of consumers
against the malpractices of a trader or manufacturer. Furthermore, a court
can direct the opposite party to do the following things –
1. To remove the defects in the product or service.
2. To replace the defective product with a new one

3. To refund the price of the product or charges paid by the consumer
4. To pay a reasonable amount of compensation for any loss or damage
caused by the negligence of the manufacturer.
5. To pay punitive damages as per the situation
6. To discontinue unfair trade or the whole trade completely
7. To withdraw the sale of hazardous goods
8. To pay an amount not less than 5% of the value of the defective
goods or services to the Consumer Welfare Fund.
Hence, this ends the chapter of Rights and Remedies available for a
consumer under the judicial system of India. This is followed by an analysis
of a questionnaire prepared and the conclusion based on the analysis.
ANALYSIS & CONCLUSION
Upon the analysis of the given questionnaires to the people, the results were
pretty shocking and revealed the deplorable state of the consumers in India.
Out of the given 50 questionnaires, 43 of the participants had found a
deficiency in their good or service. Furthermore, out of the 43 participants,
about 30 of them brought goods on the basis of the advertisements shown on
television. From this, we realize that the misleading advertisements play a
major role in duping the consumers. Added to that, the brand name is not a
guarantee that the people will get good quality products. This can be further
inferred as out of the 50 questionnaires, for question number 7, 39 people
replied that instead of checking the composition, they went for the brand
name of the product. This shows the blind trust which companies enjoy in
India. Out of the questioned people, 45 replied that they were aware of their
rights as a consumer but only 16 of them had sought redressal in a consumer
court. This shows that 90% of the people questioned knew their rights but
out of them, only 36% seeked redressal.
Upon the statistical analysis, we can conclude that though the consumers are
aware that they are being wronged, instead of fighting back, they are being
supressed to the tyranny of the sellers and producers. The judicial
machinery of India with regard to the Consumer Forum is pretty sound but
its functioning and user approachability needs to be increased. The
exploitation of consumers is rampant and it will still take time for the Indian
consumers to break free of their shackles of inactivity and fight the
condescending traders and manufacturers.
A PARODY OF PHISHING: CYBER LEGAL ANGLE

Ajay Dabla1*
Mannat Singh2**
Introduction
Phishing is just like fishing in a lake, but instead of trying to catch a fish,
phishers try to steal your personal information. They send out e-mails that
look like as if they come from legitimate websites. The e-mails say that your
information needs to be updated or validated and asks you to enter your
username and password. Once you click the link included in the e-mail,
some e-mails might ask you to enter even more personal information
including your full name, phone number, social security number, bank
account numbers, address and credit card number. However, in case you
only visit the fake website and just fill in your username and password, the
phisher might be able to gain access to more information only by logging in
to your account. Phishing is a con game that criminals use to gather personal
information from unsuspecting users. The fake e-mails often look
surprisingly real and also the Web pages where you are asked to fill in your
information may look legitimate. However, the URL in the address box can
tell you whether the page you have been sent to is valid or not. For example,
if a person is visiting a Web page on snapdeal, the last section of the domain
name must end with "ebay.com." Therefore, "http://www.snapdeal.com"
and "http://cgi3.snapdeal.com" are legitimate Web addresses, but
"http://www.snapdeal.validate-info.com"and "http://snapdeal.login123.com"
are fake addresses, which is being used by phishers. If URL contains an IP
1
* University School of Information and Communication Technology Guru Gobind
Singh Indraprastha University, Delhi (INDIA) 110078
2
** University School of Law and Legal Studies Guru Gobind Singh Indraprastha
University, Delhi (INDIA) 110078
address, such as 16.33.224.167, rather than a domain name, you can almost
be sure whether someone is trying to dupe you for your personal
information.
If you get an e-mail that asks you to update your personal information and
you believe that it is probably valid, visit the website by typing the URL in
your browser's address box instead of clicking the link that you have
received in the e-mail. For example, go to "https://www.snapdeal.com"
instead of clicking the link provided in the e-mail that appears to come from
snapdeal. If you are asked to update your personal information after you
have manually typed in the Web address and logged in, then the e-mail that
you received was probably real. However, in case are not asked to update
any information, then the mail was probably a spoof sent to you by a
phisher. Most real e-mails will address you by your full name at the
beginning of the mail. If there is any doubt about the legitimacy of the e-
mail, be smart and don't give your information. Even if you think the
message is real, following the guidelines above will prevent you from
providing those phishers your personal information.
2. Process of Phishing
2.1 Planning
Phishers first decide and identify the business that they wish to target and
determine how to obtain the e-mail addresses of the customers of that field.
After that they often use the same mass-mailing and address collection
methods as spammers.
2.2 Setup
After they know which business they want to Phish and who their victims
are, phishers create techniques for delivering the message and collecting the
data from these victims. Mostly, this involves e-mail addresses s well as a
Web page.
2.3 Attack
This is the step that people know about. The phisher delivers a phony
message that seems to be from a reputable and legitimate source.
2.4 Collection
Phishers record the collected personal information of the victims and enter
them into Web pages or popup windows.
2.5 Identity Theft and Fraud
The spammers utilize the information that they've collected to make illegal
purchases or otherwise commit fraud. If the phisher wants to manage
another attack, he assesses the successes and failures of the scams that he
has done and begins the entire cycle again. Phishing scams take advantages
of software and security loopholes on the client as well as the server sides.
But all the scams even the most high-tech phishing scamsfunction like old-
fashioned con jobs. A hustler would convince his mark that he is legitimate
and trustworthy.
3. Phishing Methods
Phishers depend on various simple tools and methods to trick users.

However, phishers must use different methods to trick the user into
believing that it is real and end up using their server or page content
3.1 Man-in –the-middle Attacks

One of the most successful ways of obtaining user information is the man in
the middle. The man-in-the-middle attack includes the phisher to be situated
between the victim and the actual web site, and proxies all connection
between the systems. From there, the phisher can discern and document all
the data. This type of attack is perfect for HTTP as well as HTTPS
communications. The victim connects to the spammer‘s server as if it was
the actual site, while the spammer‘s server makes a parallel connection to
the genuine site. The Phisher‘s server then proxies all communication
betwixt the customer and the actual web-based application server in real-
time. In few cases, where there is a secure HTTPS communication, an SSL
connectivity is created between the user and the phisher's proxy. This lets
the attack to save all traffic in an unencrypted state, on the other hand the
phisher's proxy forms its own SSL connection between itself and the actual
web site.
3.2 URL, Obfuscation Attacks

The purpose of phishing attacks is to make the message recipient to chase a
hyperlink to the spammer‘s server, without the user knowing that they have
been sent to a fake site. The most common technique of URL obfuscation
are:
3.3 Link manipulation

Majority methods of phishing use some kind of technical deception
designed to make a link in an email (and the fake website it leads to) look
like it belongs to the spoofed organization. Wrongly spelled URLs or the
use of subdomains are the tricks regularly used by phishers. In the following
example URL, http://www.mybank.example.com/, it seems as if the URL
will take you to the example part of the mybankkwebsite; actually this URL
points to the "mybank" section of the example site. Another trick that is
commonly used is to make the displayed text for a link advice a trustworthy
destination, when the link really goes to the phishers' site. The following
example link, //en.mysite.org/nivi/Genuine, appears to direct the victim to
an article whose title is "Genuine"; once the user clicks on it, it will in fact
take the user to the article entitled "Deception". In the lower left hand corner
of the majority browsers users can preview and confirm where the link
provided is going to take the victim.
Another method of URL obfuscation is by the registration and use of poor
domain names. For example, ―Yourbank‖ with the registered victims
transactional site personalbanking.mybank.com. The phisher can create a
domain with personalbanking.mybank.com.ch, and the victim may not
suspect that something is wrong.
3.4 Friendly login URL‟s

Number of web browsers allow for complex URLs to include authentic
information such as a username and password. Usually using the format,
URI://username:password@hostname/path. A phisher might replace the
username and password fields for details related to the target web site.
3.5 Third-party shortened URL‟
A lot of web-based applications URLs are lengthy therefore; there are quite
a few third-party organizations which provide free services providing
shorter URLs. The Phishers use these free services to obscure the intended
destination i.e. Website of the victim.
3.6 Host name obfuscation
Phishers might use the IP address as part of a URL to obscure the user,
probably bypass content filtering systems, and conceal the true destination
from the end user.
3.7 Cross-site scripting
Cross-site scripting way of attacking uses custom URL or code injection

either into a legitimate web site URL or embedded data field. These
methods are usually used on web sites that have a defect in the scripting.
3.8 Preset Session Attack
HTTP and HTTPS are stateless protocols therefore, web sites should use
custom tracking techniques to direct users through its pages and tackle
resource access that need authentication. The most common method of
accomplishing this is by Session Identifiers.
The attacker can take advantage of this procedure by sending a message
encapsulating a web link to the actual web site, but also contains a
predefined Session ID field. The phishing attacker should compulsorily wait
until a message receiver follows the link and authenticates their identity
using the Session ID. After they are authenticated, the application server
will let any connection using the authorized Session ID to get access to
restricted information. Therefore, the Phisher by using the preset SessionID
can access a confined page and carryout his malicious actions
3.9 Hidden Attacks

An attacker might use HTML as well as other scriptable code that can be
read and understood by the victim's web browser and utilize it to manipulate
the given information. Often, the spammer uses these methods to disguise
false content
3.10 Using Spyware
Frequently installing spyware software on a victim‘s computer, phishers can

notice the victim as they fill in the data into web sites. Two common
techniques are:
 Key-logging: Records every key that is pressed by the victim, specifically

when they are entering personal information into web sites. With this data,
the attacker can use the account for their own benefit anytime they wish to.
 Screen Grabbing: Few phishing attacks use a code created to take a screen
shot of information that has been provided by the user to a web site. This
can be used to combat some of the more safe financial applications that have
unique features built-in to prevent such malicious attacks.
3.11 Browser Vulnerabilities

In many cases, phishing attacks can be done due to the vulnerabilities in the
web browser. And even when software sellers have painstakingly made an
effort to present users with software updates and patch which is very helpful
in protecting the victim from phishing attacks. Home users still avoid
applying them many times.
3.12 Clone phishing

This is a form of phishing attack in which a legitimate, and previously
delivered, email that carries an attachment has had its content and recipient
address taken and used to generate an almost similar or cloned email. The
attachment in the email is substituted with a malevolent version and then
sent from a fake email address so that it looks like it came from the real
sender. It might claim to be a resend of the real or a improved version of the
original. This method can be used to pivot from a formerly infected machine
and acquire a foothold on some other machine, by exploiting the social trust
related with the inferred connection because both parties receive the original
email.
3.13 Whaling
Various recent phishing attacks have been guided specifically at senior
executives and many high ranking targets within businesses, and the
word whaling has been created for such kinds of attacks.
3.14 Rogue Wi-Fi

Phishers create free Wi-Fi access-points, and configure them to make man-
in-the-middle attacks work, this is usually done with tools like ssl strip, to
compromise each and every access point users.
3.15 Session Hijacking

Session Hijacking is similar to phishing attack in which user‘s activities are
observed. This is done until the victim logs into a target account such as
their bank account and establishes their credentials. Then, the spiteful
software takes control over the system and undertakes unauthorized actions,
such as stealing funds without the victim knowing
3.16 Filter evasion
Attackers now use images in place of text to make it difficult for anti-
phishing filters to identify text which is usually used in phishing
emails. However, this has resulted in the evolution of more sophisticated
and complex anti-phishing softwares that are capable of recovering hidden
text in images. These anti phishing software use optical character
recognition to optically scan the picture and filter it. Few anti-phishing
filters now use intelligent word recognition, which is not designed to
completely substitute OCR, but these filters have a unique feature that can
detect cursive, hand-written, tilted, or distorted content, as well as text on
colored or deformed backgrounds.
3.17 Website forgery
After the victim visits the fake website, the deception is not over. Certain
phishing scams use JavaScript commands so as to alter the address bar. This
can be done either by displaying an image of a legitimate URL on the

address bar, or by closing the real bar and opening up a new one with the
registered URL. A Phisher can even use defects in a reliable website's own
scripts against the user. Such attacks specifically are problematic, as they
guide the victim to sign in at their bank or service's own web page, in which
everything from the web address to the security certificates looks correct. In
reality, the link of the spoofed website is designed to carry out the attack,
making it extremely difficult to detect without professional knowledge. To
overlook anti-phishing methods that scan websites for conspired texts,
attacks have started using Flash-based websites which is called as phlashing.
These appear much like the legitimate website, but conceal the content in a
multimedia object.
3.18 Phone phishing
Phone phishing is presently the modern type of phishing. Not every

phishing attack needs a fake website. Mails that claimed to have come from
a bank directed users to dial a phone number and inform them about the
issues with their bank accounts. Once the phone number which is owned by
the attacker, is dialled, prompts tell the victims to fill in their account
numbers, PIN and other personal information. Phone phishing sometimes
uses false caller-ID data to make the user believe that calls are coming from
a reliable organization.
3.19 Voice phishing
Voice Phishing is the criminal activity of using social engineering over

the phone to obtain private, personal as well as financial information from
the common people for the purpose of deceiving people for financial
reward. This is called as 'vishing', this word is an amalgamation of "voice"
and phishing. Vishing exploits the public's faith in landline services, which
have traditionally terminated in many locations which the telephone

companies know, and related to a bill-payer. Vishing is designed to steal
credit card numbers, PIN or other personal data which is used in identity
theft schemes from individuals. Some fraud people use features provided
by Voice over IP like caller ID spoofing to show a number of their choice
on the receiver‘s phone line, and automated systems. Vishing is arduous for
legal authorities to detect, monitor and trace. In order to protect themselves,
consumers are asked to be highly attentive while receiving messages which
direct them to call and give credit card details or bank numbers.
Typically, once the victim attends the call, an automatic recording, often
created with a text to speech synthesizer, is played to make the consumer
vigilant that their credit card has experienced a fraudulent activity or that
their bank account has had some unexpected activity. The mail instructs the
user to call the given phone number instantly. Similar phone number is often
displayed in the spoofed caller ID and is provided with the same name as of
the financial company or organization that they are pretending to be. Once,
the victim dials the number, it is answered by automated instructions to fill
in their credit card details or bank account number on the key pad. After the
consumer provide their credit card details or bank account number, the
visher receives all the information that is required to make fraudulent use of
the credit card or to gain access to the account. This call is usually used to
obtain additional information such as security PIN, date of birth, etc. Even
though the use of automated receivers and war dialers is preferred by the
attacker, many cases have been reported where manual operators play a
major role in these attacks, in an attempt to encourage their victims.
4. Legal aspect
Section 66: The financial assets of the victim is compromised by the
phisher which cannot be done unless & until the fraudster deceivingly
makes some changes by deleting or alteration of some data electronically in

the victim‘s account residing in the bank server. Therefore, this act is
punishable under section 66 of the IT Act.
Section 66A: The impersonated email that contains the fake link of the bank
or organization is used to deceive or to mislead the recipient regarding the
origin of such mails and therefore, it is clearly punishable under Section
66A IT Act, 2008.
Section 66C: In the fake emails sent by the phisher, the fraudster
impersonates himself as the real banker and uses the distinctive identifying
feature of the bank or organization example the Logo, trademark etc. and
thus, it is clearly punishable under section 66C IT Act, 2008.
Section 66D: The phisher through the use of the fake emails that contain the
link to the fake website of the legitimate bank or organizations impersonates
the Bank or financial institutions deceive innocent people, thus this offence
also comes under Section 66D.
5. Causes
Unawareness among common masses: All over the world, especially in
India, there has been lack of awareness regarding various cyber crimes
amongst common masses. The users do not even know that their private
information or data is actively being targeted by the lawbreakers therefore
they fail to take proper precautions when they indulge in online activities.
Unawareness of policies – The offenders often depend upon victim‘s
unawareness of financial institution policies and procedures for deceiving
customers, particularly for things relating to account maintenance and false
investigation. Customers being unaware of the rules and system of an online
transaction are very much more susceptible to phishing attacks, regardless
of technical sophistication.
Technical sophistication - Phishers now use advanced moderm technology
can be successfully used for fraudulent purposes such as spam, distributed
denial of service as well as electronic surveillance. As more and more

customers are becoming aware of cyber crimes, criminals have developed
techniques to counter this problem also which is beyond the understanding
of a common person.
Low Punishments: The punishments of such acts committed on the internet
do not have big punishments. This acts as an encouragement to the criminals
as they are aware of the fact that they will not be caught and even if they are
they will not be adequately punished. The punishment extends to 3 years I
prison or fine or both. This is a major reason why such crimes are increasing
day by day.
Easy loss of evidence: it is extremely easy to get rid of all the evidences.
They are a deal of great concern in cyber crimes. In cyber crime, there is no
areal place. The evidences, data, the network and other related gadgets with
the log files and trail of events emerging or recorded in the system are the
crime scene. In such cases of cyber crime, unless the investigation agencies
such as the police swing into action quickly and seize the systems, machines
and capture the evidences, such vital evidences could be easily manipulated
and destroyed. In fact, if one gets to know in advance that his system is
going to be seized, he would immediately destroy all the evidences such as
formatting the computer, deleting the history, removing the cookies,
falsifying the registry and user login set ups, reconfiguring the system files
etc. therefore the criminals find it easy to commit a cyber crime.
6. Solutions
i) Analyze and indentify the link in the address bar. Looking at the link, the
victim can identify whether the website is fake or real.
ii) The user should not browse in http, browsing is much safer in https as the
password that the user enters will first be encrypted and then sent to the
server.
iii) If the website that the user is working on is spoofed, then once the user
has entered his/her username and password the page will be refreshed and
opened again. Through this, the victim will get to know that his/her personal
details have been sent to the phisher and so the victim can immediately
change his/her password.
iv) Always use internet antivirus.
v) Always keep the browser security high by selecting the HIGH option.
vi) The cyber branch that deals with such crimes should be well trained and
should be provided with best of the facilities so that it becomes easy for
them to crack such cases.
vii) Device must be protected with a firewall, spam filters, anti-spyware
software as well as anti viruses
viii) Refrain from clicking on links, instead download files or open
attachments that have come from unknown senders.
ix) Beware pop-ups and do the following:
 Never provide personal data in a pop-up screen.
 Avoid clicking on links in a pop-up screen.
 Refrain from copying web addresses into your browser from pop-
ups.
 Legitimate enterprises will never ask you to provide personal
information in pop-up screens. Therefore be alert.
Conclusion
Phishing being a very dangerous crime needs to be prevented from duping
the common masses. More and more awareness should be spread especially
amongst the adults as they are the once who use E-Banking and are the most
ignorant of all. Through Phishing, people sitting at home are able to steal
large amount of money. The crimes committed online do not have big
punishments therefore it acts as an encouragement for the fraudsters.
Moreover, the inefficiency of the people in the police force to handle the
new technology to solve such cases is another reason that encourages such
acts. If the solutions given in this article are followed then it will become
extremely difficult for the fraudsters to deceive anybody.
TRIAL BY MEDIA: PARADIGM MECHANISM OF

RIGHT TO FAIR TRIAL
Mandobi Chowdhury
Shayan Ghosh
Introduction
―Do you believe in the judiciary, or do you believe judiciary needs a push
from the media?‖
---Barkha Dutt.
The media is the concretized fourth pillar of any democratic system,

by virtue is an integral part of the freedom of speech and expression. On one
hand it is obligated to respect the rights of individuals whereas on the other
hand it is indebted to work within the framework of legal principles and
statutes.1Trial by media is a newly introduced idea which emerged in the 20th
and the 21st century covering person‘s reputation by creating a widespread
perception of guilt regardless of any verdict through the court of law. 2 The
focal issue lies within the deliberation between supporting an uncensored
free press and individual‘s right to privacy.3
In this recent epoch, media has restructured itself into a ‗public court‘
and has started interfering into court proceedings. It completely ignored the
fundamental disparity between an accused and a convict keeping at stake the
golden principles of ―presumption of innocence until proven guilty‖ and

LL.M. (Business & Corporate Laws), Symbiosis Law School, Pune.

LL.M. (Business & Corporate Laws), Symbiosis Law School, Pune.
1
Press Council Act, Section 14 (1978).
2
Furqan Ahmad, Human Rights Perspective of Media Trial, 1 Asia Law Quarterly 48, 47-62
(2009).
3
Navajyoti Samanta, Trial By Media-The Jessica Lal Case,
http://ssrn.com/abstract=1003644 (last updated Oct. 05, 2014).
―guilt beyond reasonable doubt.‖ It is observed that media itself does a

separate investigation to the extent that it projects the conclusion of that
particular issue whereby it develops a public opinion in contravention with
the court‘s pronouncement and the rights of the accused.
Looking through positive glass we can argue that the persons
involved in the ―media trials‖ should appreciate that the Indian Constitution
do not support boundless freedom therefore they need to act with certain
reasonable restriction to determine that each individual in this country is
provided with equal rights recognized by the law. While looking through an
undesirable glass it can be established that media trial negatively denudes
people of their liberty and violates their dignity through its fanaticism. We
sustain to balance the ideology of Pandit Jawaharlal Nehru - ―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.‖
Balancing Media: The Nostrum in Social Development
The symmetry between freedom and restriction of media activism is

pertinent to recognize the role of media vis-à-vis the judiciary. According to
George Gerbner, ―Popular entertainment and news via mass media represent
the convention cultural pressures of the social order. The judicial process,
however, represents an effort to adjudicate individual cases according to
law.‖ The nostrum of social development by media revolves around the
mantra ‗feed what the public is interested in‘ and not ‗what is in public
interest‘ which has been detailed in the later chapters. The Andhra Pradesh
High Court in Labour Liberation Front v. State of Andhra Pradesh4,
observed that ―once an incident involving prominent person or institution
takes place, the media is swings into action, virtually leaving very little for
4
2005 (1) ALT 740.
the prosecution or the Courts.‖5 The media clamour created in the Jessica
Lall and Priyadarshini Mattoo cases would be illustrations of the ―Sinful rich
type‖ and ―Abuse of power trial‖.
The Article 19 of International Covenant on Civil and Political
Rights, 1966,6 epitomizes that, ―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.‖7 However, this freedom comes as a proviso as per the phrase that
exercise of this right comes with ―special duties and responsibilities‖ and are
subject to ―the rights or reputations of others. Although the freedom of press
is not separately guaranteed right in India unlike the United States of
America, however the Supreme Court of India has recognized freedom of
press under the canopy right of freedom of speech and expression as
envisaged under Article 19(1) (a) of the Constitution of India in the plethora
of cases.
In the cases of In Re: Harijai Singh and Anr. And In Re: Vijay
Kumar,8 the Hon‘ble Supreme Court had the juncture to decide on the scope
of the freedom of press and recognize it as ―an essential prerequisite of a
democratic form of government‖ and regarded it as ―the mother of all other
5
Id. at para 14.
6
International Covenant on Civil and Political Rights, 1966, Article 19 Mar. 23, 1976.
7
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 (ordre public), or of public
health or morals.
8
(1996) 6 SCC 466 at paras 8, 9 and 10.
liberties in a democratic society.‖9 The right provided under Article 19(1) (a)
includes the right to information and the right to disseminate through all
types of media, whether print, electronic or audiovisual means.10 It was
apprehended in Hamdard Dawakhana v. Union of India,11 that the ―right
includes the right to acquire and impart ideas and information about matters
of common interest‖.
The Supreme Court has affirmed that trial by press, media activism
by way of a public agitation are the illustrations that can be described as in
contravention with the rule of law as they can lead to miscarriage of justice.
In Anukul Chandra Pradhan v. Union of India,12 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 of
jurisprudence including the presumption of innocence of the accused unless
found guilty at the end of the trial‖.13
Scrutinizing through the communal violence in India media has
played a marvellous role projecting the situation of those areas which are
captured in the hands of communal violence. From Muradabad Riots, 1980
to Muzaffarnagar Riots 2013,14each of the situations is exposed through all
forms of media. It can be argued that this efficiency of the media in
unfolding the truth while overlooking their own lives is noteworthy. It is true
that our independent India is secular and has democratic government through
the mother law of the land but communal violence the very nature of such
9
Id.at para 8.
10
Secretary, Ministry of Information & Broadcasting v. Cricket Association of West Bengal,
1995(2) SCC161; Romesh Thapar v. State of Madras 1950 SCR 594; Life Insurance
Corporation of India v. Manubhai D. Shah 1992 (3) SCC 637.
11
1960 (2) SCR 671.
12
1996 (6) SCC 354.
13
Ibid., para 7.
14
Dhananjay Mahapatra, Muzaffarnagar Riots: SC slams UP for „biased‟ relief order, The
Times of India, Nov. 22, 2013 at A2.
secularism vitiating the motive behind such an enactment.15
We Say Fair Trial: They Say Free Press
The globalization of the media aggravated the legal setbacks as a

communication can be made through one publication circulating in different
jurisdictions of the world.16 Although all the branches of media tries to
exercises considerable authority required to distort the truth and harm on
individuals still it disappoints the crave for justice.17 It is accepted that a free
press is vital to the maintenance of a liberal democracy the sole reason being
it provides the citizen with the information and a diversified opinion
necessary for them to argue on political and social perspective in order to
make their government accountable.
The first amendment to the US Constitution provides that ―Congress
shall make no law… abridging the freedom of speech or of the press.‖18
Newspapers certainly enjoy the same rights to freedom of speech and
expression unlike individuals but the meaning of the press clause must be
more than what is expressly written otherwise it will become redundant.
According to Stewart the purpose of the media provision is to establish an
institution, ‗The Fourth Estate‘, the main purpose would be to act as a check
on the activities of all the three organs of the society.19 To avoid glitches
associated with legal control self-regulation is one of the methods.
Commonly the councils consider and issue formal adjudications on
complaints by members of the public about press misconduct focusing on
erroneous or misleading complaints.
15
Paranjoy Guha Thakurata, Media Ethics Truth, Fairness and Objectivity 55 (Second Ed.,
Oxford University Press 2011).
16
Eric Barendt, Freedom of the Press 92 (Ashgate Publishing Limited 2009).
17
John Rawls, A Theory of Justice 95 (Third Indian Reprint, Universal Law Publishing Co.
Pvt. Ltd. 2008).
18
Geoffrey Robertson, Media Law 204 (Fifth Ed., Penguin Books Publication 2000).
19
Supra note 16 at 15.
Feed „What Public is Interested in‟ or „what is in Public Interest‟
The people of any nation do come up with the presumption of

unconscious bias as and when the media shadow comes upon. Before the
Hon‘ble Apex Court of India came up with the principle of the freedom of
the press media in several cases,20 the fundamental crept up to be the
people‘s right to know. While elaborating the Supreme Court judgments it
was distinguished that although the fundamental job of the press is to furnish
the true fact on all the vistas which brings up its head in the society. It has an
informatory and disseminator attributes to play which shapes the public
opinion.‖21
The freedom of a news has to be in the domain of the people‘s right
to know the bring out the true facts22 but they cannot be certainly not to be
relied upon like people often does by checking up a white book or the
Gazettes in India. The media publicity regarding the 2G spectrum case 23, the
Coalgate scam case, the Commonwealth Games scam or it might be the
Bofors Case, the judiciary has checked the merits of media publicity as the
only agency who does know about the incidents. It checks out the
information as it expresses the public expression of the disapproval for acts
against the legal norms. It thereby prevents the false witness bearers who are
under the public surveillance, reducing illegal acts through the public
opinions disfavouring crimes by establishing a public platform of debate and
discuss the major issues. The two significant attributes of journalists to check
out and to conceive that the subject matter should lie in the public domain
20
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.
21
Madhavi Goradia Divan, Facets of Media Law 254 (Second Ed., Eastern Book Company
2013).
22
Labour Liberation Front v. State of Andhra Pradesh 2005 (1) ALT 740.
23
Re: Special Reference No. 1 of 2012, Supreme Court.
for the reader to gain knowledge of and an attempt not to make the truth to
deliberately hide from the masses.
The entire newsgathering needs utter scrutiny of resources and
information. The democratic setup without the means of free information and
expression makes no sense of imposing a rule nisi upon the State. The ideal
element of democracy and free press does not remain abundant in the society
but makes a scourge across the nations.24 Several scholarly articles do trace
out the justification of initiating a trial by media while proposing the mob
mentality which used to exist in media independently where the opinions
comes before the society.25 In the Indian setup, transparency claims
assurance in each case where the CBI cannot hound and inspect. It is the
media which should come up to come and unfold the history of the dark ages
of the Star Chambers. It is more appealing as and when the judicial
proceedings were to be conducted secretively. The all-powerful tweets,
signed online petitions and the Facebook ―likes‖ merely provide a platform
in order to convey the different perspectives. It is only generating public
dialogue regarding issues of public importance.26 To muffle ones voice shall
be deemed to smother democracy.
The stigmatized judicial decisions on the verge of creating an issue in
public interest does not generally brings out the emerging interest in which
the public is determined to look for. Media institution does have a sacrosanct
role to play not only to bring out the true facts but also to help the people to
realize what is in public interest. To cite Jeremy Bentham on the
administration of justice, the secrecy is the darkness where publicity is the
very soul of justice.27 Justice comes up with true fact as a form of expression
24
Karen S. Precella, Freedom of the Press: Does the Media have a Special Right of Access
to Air Crash Sites?, Winter Journal of Air Law and Commerce 2, (1990).
25
Shyamali Bhattacharjee, Media and Mass Communication: An Introduction 155
(Kanishka Publishers 2005).
26
Thomas Gibbons, Free Speech in The New Media 32 (Ashgate Publishing Limited 2009).
27
K.G. Balakrishnan, The Constitution, The Media And The Courts, The Fourth K.S.
Rajamony Memorial
focusing mainly through media which is not only the fourth estate in the
Constitution but also the sentinel upon all freedoms.
Verdict: Activism of Media
Do the media influence the judiciary in a subconscious mode? The

pre-trial and the onslaught of verdicts by the media in matters which are sub-
judice definitely have a certain mode of impact on the administration of
justice and also on the human beings who work in judiciary. Media works
regardless of any sort of jurisdictional matters but the effect gets on to the
media influencing the judges.28
Media attributes make a certain kind of disparity amongst the reality
and the viewer‘s knowledge of such instances. Even if one lifts up the bias,
at times as the reliance of the reporting‘s done by the press and the accuracy
do come under the scanner. The doctrine of dependency upon the media
suggests that the masses have little or no experience with certain
phenomenon to rely more heavily on the media for the picture of reality.29
The people should move into the research which might exhibit, irrespective
of the bias, the media goes wrong on several occasions to provide the exact
data to keep the populace communicated.
To begin with, however, the media comes up as a directive
instrument against the abuse and violations of human rights. The usual social
contract society is now the Stone Age where we have already withdrawn
ourselves and kept in a universe of networking. There are some societies
which enjoy various forms of social, political, economic, and cultural
Public Law Lecture,

http://www.supremecourtofindia.nic.in/new_links/9%5B1%5D.8.08.rajamony.pdf(last
updated Oct. 16, 2014).
28
Attorney General v. BBC 1981 A.C. 303 (HL).
29
Susanna R. Barber,Televised Trials: Weighing Advantages against Disadvantages, 10
Just. Sys. J. 279,
284 (1985).
developments. The free media was harnessed as the force effective execution
of the human rights in the constant struggle. The initiation of the mass
arousal in the December, 2011 regarding the Nirbhaya issue30 till the issue of
women empowerment which cropped up interestingly where media activism
struck as the no - entry mode to the denial of justice. It removes the
constraints of any kind of disabilities that obstructs in the utilization of the
women folk, not only in India but throughout the world. One of the basic
tenets is that the media can come to the rescue for the citizens who are
denied of fair trial by powerful interests. Suppose in the view of the fact that
a revolutionary change has been joining hands with the constant growth and
development of society. The role of media in protection to the human rights
cannot be brushed aside. Media, the watchdog of the society is no more
bound to the activities of the Press but has expanded unprecedentedly.31
The question of expression by the media is sometimes posed before
the Judiciary as whether there is any sort of limitations upon the right of
media in respect of the matters in the public domain.32 Whether the
investigative journalism undermines the issue of a legal wrong? Are they
entitled to the Government documents which need secrecy? Shall they not be
liable for espionage or defamation for which the Court of Law should
summon them on this account? The media on several occasions investigated
the Pre-trial prisoners in jail, the opinion polls and in cases of terrorism
where Ajmal Kasab or Mohammed Afzal33 where the right to fair trial has
been compromised. The issue of justice crept up but it was no failure by
moving upon the pathway discovered by the media.34 To facilitate the limits
of the media, the engagement of the attention of law-makers shall also seek
30
State v. Ram Singh &Anr. SC 114 of 2013.
31
Lord Justice Denning, The Road to Justice 76 (Sweet and Maxwell 1988).
32
Dr. Saroj Bohra, Role of Media in Protection of Human Rights, XII (4) Nyayadeep (The
Official Journal of NALSA), 89 (October 2011).
33
State (N.C.T. of Delhi) v. Navjot Sandhu @ Afsan Guru AIR 2005 SC 3820.
34
John Rawls, Justice as Fairness, A Restatement 84 (First Indian Reprint, Universal Law
Publishing Co. Pvt. Ltd. 2004).
to make broader guidelines on such evolving issues to ensure that the line
should not be crossed.
Now off hand it might seem that the posture of the freedom of press
is perhaps a necessity to make a passing reference to the major national
dailies and blogs. The line has been on a peg down mode as in there are two
modes of lanes in the society, the northward and the southward ones. The
two lanes are two facets of the same coin. One acts in a live theatre called
life and the other makes such acts accountable.35 The importance of media
cannot be underestimated in the life of nation building. The media or the
fourth pillar should not bend itself as taking up the sectional interest like that
of ―Page 3‖ or being the publicity partner of the industrial magnates who
does have interest in financial stakes or become the microphone of the press
barons. It is definitely important that they should not be run just for the sake
of their outspokenness.36
Conclusion
The status of media has been traced out from the distinguished U.S.
Appellate Court Judge Learned Hand observed, The hand that rules the
press, the radio, the screen, and the far-spread magazine, rules the
country.‖37In evaluating the media, it seldom does not focuses only the ―non-
issues‖ but definitely tries to divert the attention of people to bring in
opinions and view point which is the basic feature of a democratic setup. The
rise of smaller voices shall help to achieve justice and the necessary
achievement of justice undoubtedly seen to be done.38
35
Michael Froomkin, The Metaphor is the Key: Cryptography, The Clipper Chip, And the
Constitution University Pennsylvania Law Review, 19 (January 1995).
36
H.R. Khanna, Freedom of Expression with Particular Reference to Freedom of the Media,
2 SCC (Jour.) 1 (1982).
37
Gary A. Hengstler, The Media‘s Role in Changing the Face of U.S. Courts 37 (Diane
Publishing Company).
38
R. v. Sussex Justices : Exparte McCarthy 1924 (1) KB 256.
In the Indian Express Newspaper case39, the Court pointed out that
―in today‘s free world. The freedom of press is supposed to be the heart of
social and political intercourse. The press has now assumed the role of the
public educator making formal and non-formal education possible in a large
scale particularly in the developing world…the purpose of the press is to
advance the public interest by publishing facts and opinions without which a
democratic electorate cannot make responsible judgments.‖ The virtue of
publicizing the important elements of the society is the frame of justice. The
soul permits the keenest spur to gain assurance against all kinds of
Machiavellianism. It definitely keeps the Hon‘ble Justice himself free from
all bias during the trial.
The warning against secrecy in the administration of justice, through
media the world evidences today as well. The open court principle is
however a constitutional significance in many countries including Canada40,
the United Kingdom41, the United States42, Australia43 and New Zealand44
which India does not follow. But the blatant commercialization of media, the
trivialization of the content and sensationalism might create a great
disconnect between the media and the people which should be checked to
assure the fair trial mechanism.
39
Indian Express Newspapers (Bombay) Private Ltd. & Ors. v. Union of India &Ors. AIR
1986 SC 515.
40
AG (Nova Scotia) v. MacIntyre [1982] 1 SCR 175.
41
Scott v. Scott [1913] A.C. 417.
42
Richmond Newspapers Incorporated v. Virginia 448 U.S. 555 (1980).
43
Russell v. Russell (1976) 134 CLR 495.
44
Claire Baylis, Justice Done and Justice Seen to be Done – The Public Administration of
Justice 21 Wellington Law Review 177 (1991).
CHANGING JUDICIAL TRENDS AND

PERCEPTIONS TOWARDS RAPE VICTIMS IN INDIA
Vidya V Devan
One paradox of the modern civilization is that with the rising of women‘s
position, crime, violence and discriminations against her is increasing.
Protection of women is a subject of hot disputes. Women constitute about
one-half of the global population, but they are placed at various
disadvantages positions due to gender difference and bias. It is heartless
truth that women have been ill-treated in every society for ages and India is
no exception. The irony is that in our country where women are worshipped
as shakti, the atrocities are committed against her in all sections of life. She
is being looked down as commodity or as a slave, she is not only robbed of
her dignity and pride outside her house but she also faces ill-treatment and
other atrocities within the four walls of her house. They are considered as an
object of male sexual enjoyment and reproduction of children. From the
cradle to grave, women are under the clutches of numerous evils acts as
discriminations, oppressions, violence within the family, at the work places
and in the society.
India‘s emergence as a leading player in international trade and

politics is increasingly drawing global attention to the nation‘s approach
toward redressing and preventing violations of fundamental human rights,
including the rights of Indian women. There are many legal provisions for
the protection of women. In India there are nearly fifty legislations which
are meant women ranging from the Constitution to one of the youngest
legislation ie, The Sexual Harassment of Women at Workplace (Prevention,
Prohibition and Redressal) Act 2013( Act 14 of 2013).

Asst.Professor (FIP)Substitute , Govt Law College, Ernakulam.
In spite of the rising level of education and increasing number of

protective laws women are still exposed to insecurity and constantly
subjected to mental and physical abuses. It is the duty of the state to protect
women from exploitation and provide social justice. The legislature has
used its full capacity to stop inequality and exploitation of women through
number of legislations.1But the legislature alone cannot fulfil and attain the
object and purpose of the legislation. A combined effort of the three organs
of a government is the call of the day.
The judiciary has the lion share of work by interpreting the said
legislations. The judiciary is the last resort of the citizen to enforce his/her
rights when violated. Women and children are being exploited in every walk
of life. Women are always victims of inhuman crimes such as dowry death,
domestic violence, sexual assault etc. 2
Through this paper my attempt is to analyse the attitude of the
judiciary to the women victims especially the rape victims. There has been a
sea change in the view taken by the Supreme Court in the subject of rape
since Mathura rape case. Judiciary through a course of judgements has tried
to give protection to women victims. Judiciary have taken steps in right
directions to uplift women to the main stream by giving support.
Offence of Rape: The Most Heinous Crime.

―While a murderer destroys the physical frame of the victim, a rapist
degrades and defiles the soul of helpless female‖. The effects of rape on the
victim are multidimensional. She would be looked down upon by the
society including her own family, relative, friends and neighbours. It will
also affect the future of her brothers and sisters, if any. The rape would
1
Aricle from Nyaya Deep2009
2
Law relating to women and children;Mamta Rao
almost inevitably and invariably result in mental torture and suffering to the
victim. Younger the victim, greater the repercussions of the offence.3
The conviction rates for rape are still lower than any other major
crimes. A rape victim who knocks the door of administration of justice is
completely broken down by the humiliation that she suffers during the
investigation and trial of the crime. The piercing cross examination by the
counsel often causes confusion and nervousness. Cross examination often
results in harassment and humiliation of the victim of rape. In criminal
proceedings there is a tendency to regard the rape victims as just another
piece of evidence. The victim‘s role is to establish a legal case against the
offender. Little concern in shown for her efforts to adjust to the rape,
responses of her family and society.
Judiciary is very sensitive in case of crime against women. This
sensitivity is reflected in the judgments of many cases. In Mathura rape
case4,when a 16 year old tribal girl was raped by two policemen in the
compound of Desi Ganj police Station in Chandrapur District of
Maharashtra, the court held that since the tribal girl was ― habituated to
sexual intercourse‘, her consent was voluntary, and she could not be
considered to have been the victim of rape. And the absence of visible
marks of injury would negate any struggle by her, and hence the allegation
of rape was not made out. This was the view taken by the court in
1983.What does it mean? Merely because she was not a virgin, is it
suggested that she was available for rape to all and sundry? 5 This verdict
provoked the people. Many agitations6 were conducted against this and so
3
(2001)2SCC(jour)27 child as a victim of rape by Dr. G. Kameswari
4
1983(4)SCC10
5
Supra n.1
6
The movement critiqued the rape laws that were biased against women, placing the
‗burden of proof‘ on the victim herself, and using a woman‘s past sexual behaviour as a
means of establishing the consent of the victim to the act of rape. The famous Mathura rape
case proved that the past sexual history of a victim was considered reason enough to
disbelieve her story . The outcome of the Mathura case caused an uproar in India. A slew of
protests helped raise demands for more stringent rape laws, and caused the Government of
The Criminal law Amendment Act was passed 1983. It incorporated section
114A to the Indian Evidence Act, according to which, in a prosecution for
rape under section 376(2) of the Indian penal code, where sexual intercourse
by the accused is proved and the question is whether it was without the
consent of the woman alleged to have been raped and she in her evidence
before the court that she did not consent, the court may presume that she did
not consent.
A significant change of perception came in the 1990‘s. The supreme
court in the case State of Maharashtra v. Madhukar Narayan Mardikar‟s7
case popularly known as Bhanubai‘s case held that a police inspector who
had entered the hut of a prostitute Bhanubai, during the night, was not
entitled to invade her privacy, without her consent, even if she was a woman
of easy virtue. If any act is done against her wishes, she is equally entitled to
the protection of law. In the case of State of Punjab v. Gurmit singh8,
directions were given by the Supreme Court for in-camera trial of rape
victims, so as to enable the victim to be at comfort while being cross-
examined. It was also directed that as far as possible the trial of a case
involving crimes against women may be tried by women judges wherever
possible.
Essentials to prove offence of rape

The explanation to section 375 of IPC1860 which provides that,
―penetration is sufficient to constitute the sexual intercourse necessary to the
offence of rape‖ came in for interpretation in various cases. The Supreme
Court in Madan Gopal Kakkad v. Naval Dubey &bAnr9 case held that the
slightest penetration is sufficient to make out an offence of rape and depth
of penetration is irrelevant. The statute contains a narrow legal definition of
India to enact the Criminal Law Amendment of 1983, which significantly amended the rape
section of the Indian Penal Code (IPC)
7
1991(1)SCC 57
8
1996(2)SCC384
9
1992(3)SCC204
rape. There are a whole gamut of sexual abuses which cannot be excluded
from the purview of rape, such as non penetrative sex, insertion of other
body parts and foreign articles, forced oral sex sodomy etc. Such forms of
sexual abuse and violence cannot be considered as lesser offences.
In Sakshi v. Union of India10the Supreme Court issued certain
directions such as arrangements should be made that the victim does not see
the face of the accused while giving evidence, questions to be asked in cross
examination to be given in writing to the judge, who may put the same to
the victim in a language that is clear and is not embarrassing as and when
requested. But the Honourable Supreme Court rejected the prayer to give
wide interpretation to enlarge the scope and definition of rape as contained
in section 375 of the IPC, 1860 on the ground that it requires legislative
amendment.
After a long cry it has been now amended the sections354,
375,376,376A, 376B, 376C and 376D11 in IPC relating to the rape by the
Criminal Law Amendment Ordinance 2013. Several new sections are
inserted for offence relating to the acid attack under Section 326. To take
an action in this direction the state waited till a 23 year girl was cruelly
raped and killed in Delhi. She was brutally raped by 5 men and an iron rode
was inserted in her vagina. Her death shocked entire women in the country
and they agitated against the state. To meet the emergency situation a
committee was appointed to make recommendations for law to meet
situations like this. Within a record time Justice J.S.Verma Committee
submitted the report and the Criminal Law Amendment Act 2013 issued.
But even after repeated demands from all women‘s organisation capital
punishment is not prescribed for rape. J.S.Verma while submitting his report
to strengthen the rape laws said the failure of governance was the root cause
of crime against women.
10
2004 5SCC518
11
Provisions relating to definition and punishment for rape.
The following section discusses about the existing system of

collection of evidence to prove rape and judiciary‘s approach in dealing
with the like cases.
Corroborative Evidence
Another important view taken by the court in favour of the rape
victim is the non-necessity of corroborative evidence. Earlier the judicial
attitude was that corroborative evidence is necessary for proving a rape. In
the Indian setting, refusal to act on the testimony of a victim of sexual
assault in the absence of corroboration as a rule is adding insult to injury.
We must analyze the argument in support of the need for corroboration and
subject it to relentless and remorseless cross - examination. And we must do
so with a logical, and not an opinionated, eye in the light of probabilities
with our feet firmly planted on the soil of India and with our eyes focussed
on the Indian horizon.12
However the judiciary has now changed its view. Supreme Court in the
case of Om Prakash v. State of Utterpradesh13, held that if the statement of
the prosecutrix inspires confidence, her evidence does not require
corroboration from any other evidence, including the evidence of a doctor.
Conviction can be based on the sole testimony of the prosecutrix.
Corroboration with medical evidence is only a rule of prudence. Another
remarkable contribution from the judiciary towards women victims can be
seen in the Vishaka‘s case. The Supreme Court, while exercising powers
under Article 141 of the constitution, moved to fulfil in the vacuum by
framing guide lines with respect to sexual harassment at workplace through
the case of Vishaka and others v. State of Rajashtan and others 14a landmark
judgement which recognizes the right of working woman with dignity.
12
2011(2)SCC550:AIR2011SC697
13
2006(5)SCC614
14
1997(6)SCC241
Sexual harassment of working women amounts to violation of the right to

equality and right to life and liberty, and hence is violation of the right to
practice any profession, occupation or trade under Article
14,15,19(1)(g) and 21 of the constitution. The Supreme Court defined the
term sexual harassment to include such ―unwelcome sexually determined
behaviour whether (directly or by implication) as:
 Physical contact and advances;
 Demand or request for sexual favours;
 Sexually coloured remarks;
 Showing pornography;
 Any other unwelcome physical, verbal or non verbal conduct of
sexual nature.
A new legislation has been enacted specially to deal with the
protection of women namely The Sexual Harassment of Women at
Workplace (Prevention, Prohibition and Redressal) Act, 2013. In this Act
the guide lines given in the Vishaka‘s case is adopted as such and after 16
years of that judgment the guide lines has become the part of legislative
enactment.
Quantum of punishment
The legislature gives the limits of discretion in sentencing .The
courts have to decide the quantum of punishment to be inflicted in each
case. The appellate courts, the High court and the Supreme Court have the
responsibility of laying down the penal policy guidelines to be followed by
the lower courts in exercising the discretion. Since the courts have been
authorised to award lesser sentence by the legislature, the sentencing pattern
presents a varied picture. Earlier in almost every rape case, a less than
minimum sentence is awarded. Even if the victim of rape is a child, the
attitude of the courts has been quite different. But the earlier attitude of the
judiciary has been changed. We can realise the changing attitude through a
series of judgements.
In Ram Krishan Aggarwala v. State of Orissa15 the accused aged 65
year old business man of Cuttak, was charged of committing rape on a girl,
who was 6 years of age. The trial court convicted him of rape and sentenced
him to 3 years rigorous imprisonment and Rs.5000 fine. The session‘s judge
on appeal upheld the conviction but reduced the sentence to six months
rigorous imprisonment and fine of Rs500. In Phul Singh v. State of
Haryana16the accused, a youth of 22 years of age, was charged of
committing rape on a deaf and dumb girl of 12 years. The trial court
convicted the accused and sentenced him to 4 year‘s rigorous imprisonment.
The Supreme Court reduced the sentence to 2 year‘s imprisonment on the
ground that the accused was a youth with no criminal antecedents and that
he had a young wife and a farm to look after. Here no attention is given to
the rape victim who is only 12 years of old and deaf and dumb.
In Bharwada Bhoginbhai hirjibhai v. State of Gujarat17the accused,
a government servant was charged of offences under section 376 read with
section 51118 of the Indian penal code for attempting to commit rape on two
girls aged around 10 to 12.The conviction given by the trial court was two
and a half years of rigorous imprisonment. The Supreme Court upheld the
conviction but altered the sentence to 15 month‘s rigorous imprisonment for
the reasons the appellant lost his job in view of the conviction recorded by
the high court, he must have suffered great humiliation in the society, the
prospects of getting a suitable match for his own daughter and the incident
occurred 7years back. What a strange findings the Honourable court is
15
(1976)2SCC177: 1976 SCC(Cri)244
16
(1979)4SCC413:1980SCC(Cri)1
17
(1983)3SCC217:1983SCC(Cri)728
18
Punishment or attempting to commit offences punishable with imprisonment for lie or
other imprisonment
concerned about the situation or the difficulties of the accused person who
has tried to rape 2 young girls. What about their future?
This was the earlier attitude of judiciary towards the victims they
were not concerned about pain and suffering of the victims. But after this
case or in the 80‘s the judicial attitude has been changed drastically in
favour of the devastated victims.
In State of Karnataka v. Krishnappa19 the accused, a man of49years
of age was charged with rape on an innocent helpless girl of 7 years of age.
The trial court convicted him and sentenced him to 10 years rigorous
imprisonment and observed that because of cruel nature of the act, the
accused was not entitled to any leniency. The high court on appeal reduced
it to 4 years on the ground that he was an illiterate citizen belonging to the
weaker section of society; that he was a chronic addict to drinking and had
committed rape on the girl while in a state of intoxication and that his
family comprising of his old mother, wife and children were dependent
upon him. The Supreme Court, on appeal enhanced the sentence of 4 years
to 10 years and observed that the approach of the high court was most
casual and inappropriate and it exhibited a lack of sensitivity towards the
victims of rape and the society by reducing the substantive sentence without
good reasons, let alone ―special and adequate reasons‖
Forensic evidence
Forensic evidence plays a powerful role in and out the court. It
significantly influences the beliefs of the police, doctors and the public
about whether a woman was in fact raped. The test usually employed in our
country is the two figure test. Courts have at times made comments about
the ―character‖ of the rape survivor based on the finger test results. In 2009,
the Supreme Court stated that ―the prosecutrix appears to be a lady used to
19
(2000)4scc75:2000SCC(Cri)755
sexual intercourse and a dissolute lady.‖ And further, that ―she had no
objection in mixing up and having free movement with any of her known
person, for enjoyment. Thus, she appeared to be a woman of easy virtues.‖
20
In the case of Hare Krishna Das21, who was also accused of rape,
the Patna High Court relied on the doctor‘s opinion that the survivor was
―habituated to sex.‖ Court acquitted the accused for lack of medical
evidence and held that the testimony of the woman was not reliable.
In Government of NCT Delhi v. Sant Ram and Ors.22, the High

Court noted that ―Doctor deposed that on local examination hymen of the
prosecutrix was found to be old torn and her vagina was admitting two
fingers easily. The court opined that the prosecutrix was habitual in having
sexual intercourse.‖ This was one of several factors including a four-day
delay in reporting rape and poor collection of evidence by the police that
ultimately led to the acquittal of the accused. The High Court held that the
testimony of the prosecutrix was not credible, saying that ―when two views
are possible, the view which favours the accused persons requires to be
adopted in terms of the legal position which stands well settled.‖
23
But in Pint Raj v. State of Himachal Pradesh, where the doctor
had stated that the hymen was torn and it admits two fingers easily. In cross-
examination during trial, the doctor further stated that the hymen tear was
―very old.‖ The defence argued that since the woman had been ―exposed to
coitus‖ before, there was no proof from the medical evidence that rape had
20
Musauddin Ahmed v. State of Assam, MANU/SC/1126/2009, para.17.
21
Hare Krishna Das v. State of Bihar, MANU/JH/0220/2006, para. 13. See also, State of
U.P. v. Dulare, MANU/UP/1148/2005, where the victim said she was gang-raped. The
doctor testified that her hymen had an old tear and that she was ―habituated‖ to sex. The
defense argued that she had ―loose‖ morals
22
MANU/DE/3091/2009, para. 7
23
MANU/HP/0094/2007, paras. 4 and 8
taken place. The High Court rejected this argument and explained away the
easy admission of two fingers, saying that was so because of the gang rape.
.
In fact, the Indian Supreme Court, has observed that ―the factum of
admission of two fingers could not be held to be averse to the prosecutrix,‖
and described finger-test assessments as ―hypothetical and opinionative,‖
implying recognition for the inherently subjective, arbitrary, and
unscientific nature of the test and related opinions. Such a test is inhuman,
degrading and unscientific. 24
The finger test blatantly violates the rights of rape survivors to
privacy, physical and mental integrity, and dignity. Under international law,
rape survivors are entitled to legal recourse that does not re-traumatize them
or violate their physical or mental integrity and dignity. The WHO
guidelines require the examining doctor to explain every step of the
examination to a rape survivor, giving her an opportunity to refuse any part
of it.25
India being a party to the International Covenant On Civil And
Political Rights (ICCPR), The International Covenant On Economic, Social
And Cultural Rights(ICESCR), The Convention On The Rights Of The
Child(CRC), and The Convention On Elimination Of All Forms Of
Discrimination Against Women(CEDAW) has an obligation to ensure
protection of the rights of survivors of sexual violence or abuse. Article 12
of the ICESR26 guarantees the rights to physical health, including sexual and
reproductive health and mental health. Universal declaration of human
24
Narayanamma v. State of Karnataka with State of Karnataka v. Muniyappa and others,
(1994) 5 SCC 728, para. 4(iv). See also, State of Punjab v. Ramdev Singh, (2004) 1 SCC
421, para. 5
25
Dignity on Trial: India‘s Need for Sound Standards for Conducting and Interpreting
Forensic Examinations of Rape Survivors‖, Human Rights Watch, USA (2010) available
at www.hrw.org/sites/default/files/reports/india0910webwcover.pdf
26
Article 12: Everyperson has the right to the enjoyment of the highest attainable standard
of physical and mental health.
rights(UDHR)27and(ICCPR)28 clearly state that no person can be subjected

to ―cruel, inhuman or degrading treatment‖.
Identifying survivors of sexual violence as being ―used to sexual
intercourse‖ in the Indian social context humiliates them. It violates the
physical and mental integrity of survivors of sexual violence.
Conclusion
Justice V.R.Krishna Iyer has stated that ‗There are several "sacred
cows" of the criminal law in Indo-Anglian jurisprudence which are
superstitious survivals and need to be re-examined. When rapists are
reveling in their promiscuous pursuits and half of humankind-womankind-is
protesting against its hapless lot, when no woman of honour will accuse
another of rape since she sacrifices thereby what is dearest to her, we cannot
cling to a fossil formula and insist on corroborative testimony, even if taken
as a whole, the case spoken to by the victim strikes a judicial mind as
probable. In this case, the testimony has commanded acceptance from two
courts. When a woman is ravished what is inflicted is not merely physical
injury, but "the deep sense of some deathless shame"‘29.
Recently the Hon‘ble Kerala High Court has gone to the extent of
sending the copy of the judgment30 to the Bar Council of Kerala for taking
necessary action against the defense counsel who ventured irrelevant,
unnecessary and abusive cross examination during the trial.
A crime victim is devastated by heinous crime of rape and is abused
by the police and prosecution system. During the trial and after sentencing,
the offender has legal aid; he is fed and housed, given physical and
27
Article 5:no one shall be subjected to torture or to cruel, inhuman or degrading treatment
or punishment
28
Article7:the freedom from inhuman or degrading treatment or punishment
29
Rafiq v.State of U.P(AIR1981SC96)
30
State of Kerala vs Govidachamy ILR2014(1)Kerala141 accused was awarded death
penalty for rape and murder .
psychiatric treatment, support for his family and counsel for appeal. A rape
victim needs support from all quarters- medical, financial and emotional. In
foreign countries, in the last 2 decades, steps have been taken to provide
medical support through National Health Services, financial support through
Criminal Injuries Compensation Board and victim support schemes and
emotional support through Rape crisis centres. Although we have a
provision in the Code of Criminal procedure Code to provide compensation
to the victims of crime from the fines payable by the offender31,the same is
inadequate. India currently has no nationwide policy or guidelines
governing medical treatment and forensic examination rape victims nor the
provision of psychosocial support and other specialized services to them.
Women‘s rights groups have urgently pressed for a sensitive and holistic
approach to treating and examining survivors of sexual violence.32 The
United Nations Declaration Of Basic Principles of Justice For Victims of
Crime and Abuse of Power And Basic Principles And Guidelines on The
Right To A Remedy And Reparation For Victims Of Violations Of
International Human Rights And Humanitarian Law specify that both state
and non- state actors should treat victims ―with compassion and respect for
their dignity and human rights .The state has special obligation to ensure
that its domestic laws provides the victim who has suffered violence is
given justice and special care to bring back to the normal life. Violence is
not only a denial of rights to a woman but also an action that bars the
woman from the
31
Section 357A-victim compensation scheme.
32
A draft proposal for a national scheme for the relief and rehabilitation of victims of rape
has been put forward by the National Commission for Women. See ―Revised Scheme for
Relief and Rehabilitation of Victims of Rape,‖ dated April 15, 2010,
http://ncw.nic.in/PDFFiles/Scheme_Rape_Victim.pdf.

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International Journal of Socio-Legal Research 1

Volume 1 | Issue 1 | ISSN- 2393-8250

THE APPLICATION OF INTERNATIONAL

II. Defining Armed Conflict

[a] treaty shall be interpreted in good faith in accordance with the

As noted earlier, the Geneva Conventions recognize two distinct categories

“occur…in the territory of one of the High Contracting Parties,”8 which

III. Between Human Right Law (HRL) and International

Convention on Human Rights,18 decisions by international bodies

should avoid envisaging the possibility of war.23 Although the protection of

Starting in the 1960s, however, a substantial relationship began to form

IV. Application of Human Rights Law and International

The consensus among many international tribunals and international

be exclusively matters of international humanitarian

However, there continues to be debate over whether in fact the European

It should, however, be noted that the protection of human dignity, whether

V. Between International and Non International Armed Conflict.

In analyzing whether or not the application of IHL will lead to derogation

of international armed conflict than non-international armed conflict. The

VI. Enforcement of International Humanitarian Law.

VI. A. Common Article 3 of the Geneva Conventions (ICRC, 1949)

VI. B. Geneva Convention IV Relative to the Protection of Civilian

Article 16 of the Fourth Geneva Convention gives protection to the

It is also worth noting that Article 27 indicates that women shall be

VI. C. Protocol Additional to the Geneva Conventions of 12 August 1949,

The principle of proportionality is central aspect of the International

Article 54 provides for the protection of objects indispensable for the

Article 70 provides that relief action shall not be regarded as interference in

VI. D. Protocol Additional to the Geneva Convention of 12 August 1949,

Article 13 of the Protocol II confers general protection on the civilian

VII. ENFORCEMENT OF HUMAN RIGHTS LAW

obligation to promote and encourage respect for human rights and

Paragraph 1 of the Declaration puts a responsibility on everyone,

While Paragraph 9 indicates that everyone has a right to benefit from an

there is no justice-dispensing machinery. Further, Paragraph 15 asserts that

The protection offered by the provisions of the International Humanitarian

military to accept restrictions on the use of any weapon with a perceived

VII. B. Limitation and Derogation of Civil and Political Rights.

In practice, there is a tendency, particularly on the part of military

By and large, intrastate-armed conflicts or other cases of internal unrest are

The rules of international Humanitarian law are intended to provide

MEDICAL ETHICS: MEDICAL NEGILIGENCE AND

The interface between law, medicine and ethics is a subject of great

accountable3. People seeking Medical aid should be enabled to know who is

established so as to lead to his bodily injury or to the loss of his life. An

3. Government hospitals/charitable organizations are out of

4. Ratio of Cases decided against doctors is not very high. It is

5. Prima Facie negligence (Legal Principles of ISpa Loqiutor)

The Consumer Protection Act, 1986 was enacted by the parliament

In M/S Spring Meadows Hospital Vs Harjot Ahluvalia through K.S.

spenelsive complaints. Doctors who follow the Medical Ethics, Medical

MEDICAL ACCOUNTABILITY AND THE RULES OF

Medical profession as distinguished from trade is based on higher ethical

Cases of medical negligence arise from a diffuse and diverse set of

The consumer movement in the health care sector in India is at the

Thus, medicine which is used to having a personal equation between the

Definition and Meaning:

Negligence is a very wide term and it cannot be defined precisely. Various

After defining negligence the question arises that what constitutes

It is widely believed that practicing medicine is a noble profession and also

The law does not define medical or professional negligence as a form of

 The doctor owed him duty of care of a particular standard of professional

 The doctor breached that duty,