VOLUME 2

ISSUE 1.2

IMPACT OF DEMONETIZATION ON MICRO, SMALL, MEDIUM

ENTERPRISES

*
Ankit Srivastava & *Divyansha Kumar

INTRODUCTION

MSME: Backbone of Indian Economy

The decision of the Government on November 8 th 2016 shocked the nation when the
Prime Minister announced that Rs500 and Rs1000 currency notes won’t be a legal
tender anymore. It took few minutes for the people to realize what actually happened.
Everyone, be it a Serviceman, Businessman, Housewife, Student, had no idea of how to
deal with it. Demonetization of currency means discontinuing a particular legal tender
(currency in this case) which is incirculation and substituting it with a new currency. 1A
greater attention was focused on the fact that how this step by the Government was
going to be implemented and how it has caused inconvenience to the general public. By
the invalidation of 86% cash, small and medium sector businesses which are mainly
cash driven were heavily affected by this move.  MSMEs’ businesses, especially those in
the unorganized sector, took a hard hit because of the slump in demand. The sector and
the impact on it can’t be ignored as it generates almost around 100 million jobs.
According to a report of Economic Times, with 38% contribution to the national GDP,
40 % to overall export and almost 45% to manufacturing output, MSME’s inevitably
become the backbone of the Indian Economy.2

**
Assistant Professor,Amity Law School, Lucknow.
**
Research Scholar.
1
Http://Www.Investopedia.Com/Terms/D/Demonetization.Asp
2
Ujjawalnanawati, At Crossroads: Msme Feel The Demonetisation Squeeze, Economic Times, Jan 03, 2017;
Http://Economictimes.Indiatimes.Com/Small-Biz/Sme-Sector/At-Crossroads-Msmes-Feel-The-
Demonetisation-Squeeze/Articleshow/56306520.Cms

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The more affected micro, small and medium enterprises (MSMEs) belong to

traditional sectors with high dependency on cash transactions such as textiles,
agricultural products, steel, consumer durables, construction and
automobiles.3According to the Government, the step taken is towards the
digitalization of the economy for a transparent market and to demolish the parallel
black market, but the MSME’s did the business in one way which was cash
transactions and thus this move will change the way they use to conduct their
business. This move has certainly created a challenge for the sector. Many were in
favour of this move of the Government and many quoted is as the black day for the
Indian Economy and we in this paper discuss its effect on the MSME’

THE CONCEPT OF DEMONETIZATION IN INDIA WITH PROS AND CONS

Demonetization is described as the act of stripping the status as a legal tender of a

currency unit. The current currency notes or legal bills are pulled from circulation, often
to be replaced with new notes or coins or legal bills. Sometimes, a country completely
replaces the old currency with new currency. 4In the current Indian context, it was the
banning of the 500 and 1000 denomination currency notes as a legal tender.

The Government stated various objectives behind the demonetization policy and the
PM during his speech also said that the Government already had warned the people of
firmer actions if they do not comply with the income tax declaration scheme by October
2016, also ‘Jan DhanYojna’ was started and people were asked to open bank accounts
and deposit the money in it and use from there, but still few did not took act on it.

The Government gave the following reasons for the step of Demonetization 5:

3
Msme Sector Growth To Decline Due To Demonetisation: Crisil, The Indian Express, Jan 5, 2017;
Http://Www.Newindianexpress.Com/Business/2017/Jan/05/Msme-Sector-Growth-To-Decline-
Due-To-Demonetisation-Crisil-1556470.Html

4
Dr. S. Balamurugan And B.K. Hemalatha, Impact Of Demonetisation: Organised And Unorganised
Sector, Iosr Journal Of Humanities And Social Science (Iosr-Jhss); Http://Www.Iosrjournals.Org/Iosr-
Jhss/Papers/Conf.Dagcbede/Volume-2/1.%2001-11.Pdf

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 It was an attempt to make India corruption free.

 It was done to restrain black money,
 It was done to control escalating price rise,
 It was intended to stop funds, flow to illegal activity,
 It was done to make people accountable for every rupee they possess and pay
income tax return.
 Last but not the least, it was doneto construct a cashless society and eventually form
a Digital India.

There were mixed reactions of the experts from the fields of Finance, Politics,
Economics etc., few took it to be a bold step and a much needed step, while others
criticized it to be unplanned move of the Government which could lead to the downfall
of the economy of the country.

According to MD & CEO, ICICI Bank ChandaKochhar, "this move will definitely bring
about a whole amount of transition to no cash or low cash kind of transactions.”,"A
parallel black economy will collapse," one of the leading lawyers in taxation laws,
Harish Salve.6

The Ex-PM of the country, former RBI Governor, former Finance Minister and a famous
Economist,Dr.Manmohan Singhwas not in favour of this and quoted that, “The
national income, that is the GDP of the country, can decline by about 2 percentage
points as a result of what has been done. This is an underestimate, not an overestimate.
Also, these measures (demonetization) convinced me that the way the scheme has been
implemented; it's a monumental management failure. Also, it is organized loot and
legalized plunder.”7
5
Demonetisation Of Currency: Merits And Demerits; Http://Www.Civilserviceindia.Com/Current-
Affairs/Articles/Demonetization-Of-Currency.Html
6
Ravi Prakash Kumar, What Is Demonetisation And Why Was It Done, Economic Times, Nov 9, 2016;
Http://Economictimes.Indiatimes.Com/News/Economy/Policy/What-Is-Demonetisation-And-Why-
Was-It-Done/Articleshow/55326862.Cms
7
Top 10 Quotes From Manmohan Singh’s Speech On Demonetisation, The Week;
Http://Www.Theweek.In/Content/Archival/News/India/Top-10-Quotes-From-Manmohan-Speech-
Against-Demonetisation.Html

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PROS

 The step taken by the Government for demonetization will help India in becoming
corruption-free. By this move there shall be a tighter hold on the unaccounted cash.

 This move will play a great role in tracking the black money. The people having
unaccounted cash are now required to show income and submit PAN for any valid
financial transactions.

 The move will stop funding to the unlawful activities and help us fight the crime
and terrorism more efficiently.

 The move taken by the government will, if not stop, reduce the circulation of fake
currency, mostly brought in use by the terrorists, which was having a negative
influence on the Economy.

 This move has generated interest among those people who had opened Jan Dhan
accounts under the Prime Minister’s Jan Dhan Yojana. They can now deposit their
cash under this scheme and this money can be used for the developmental activity
of the country.8

 No hidden incomes for the people doing it and now they will have to surrender the
held amount by them and file proper income tax.

The main intention of this move was to body a cashless society in India. Mostly, the
transactions shallbe through the banking systemand individuals would alsohave to be
accountable for every dime. It is a boldand needed step towards the making of digital
India. But with merits come demerits of this policy as well.As per our paper, the

Demonetisation Of Currency: Merits And Demerits; Http://Www.Civilserviceindia.Com/Current-

8

Affairs/Articles/Demonetization-Of-Currency.Html

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making of Digital India will severely hit the MSME sector as it has always been driven
by cash. Following are the points which will hit hard in this sector.

CONS

 Like any major change in policy in any country/state/organization creates chaos so

did the sudden announcement of Demonetization of the currency which lead to
problematic situations, a state of utter confusion and commotion in the people.

 Due to the cash crunch, the entire economy has been made to come to a standstill as
a result it hasadversely affected the business (specially unorganised sector, MSME).

 Many poor daily wage earners who mainly relied on cash payments were left with
no jobs and their daily income had to be stopped because employers were unable to
pay.

The Government found it tough to implement this policy. As the new circulation of
notes and printing was not timely, bringing back 86% of cash in the economy with new
currency was a challenge in itself.

EFFECT OF DEMONETIZATION ON MSMES

It is expected that the historic paradigm change through demonetization will have a
long-lasting impact on the market. In case of MSMEs, as cash is the main transaction
unit, most will be insecure about the payments coming from customers for a period of
time. Currently, small businesses, MSMEs, which are totally dependent on cash for
daily needs are the biggest sufferers,though the Centre has increased the withdrawal
caps, it took a few months before the situation to stabilised. 9

MSME DEFINED

9
National Msme Policy, Business Line.

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Most MSMEs are traditionally-operated, family-run businesses. As the Indian economy

was rising, policies were made to keep a check on several aspects and this led to
introduction of various licences and their approvals and therefore compliance. 10 Taxes
increased according to the growth but an SME entrepreneur has been a master at the art
of saving taxes and getting away with it. They are fast to adapt and come out of ways to
get through with the compliances and taxes. Also, the Government officials gleefully
received the unaccounted benefits of the same. This created the parallel economy of
black money. It’s a classic case of poor methods of implementation of laws at the
Government level.

Processes need a monitoring and audit mechanism that is independent and cannot
derive benefits from allowing incorrect ways in the system. All of these aspects
somehow were missed.

MSMEs and other businesses will now, by design, have two options; Pay tax or spend
on doing more for scaling up and this will have a spiral effect on the overall
improvement in the economy.

CONTRIBUTION TO GDP 

The significance of MSMEs is highlighted by the fact that, it accounts for about 38% of
the total GDP. There are near about 5 crore working enterprises in this segment, and
employing for about 12 crore people. The announcement regarding demonetization has
been utmost shocking for the unorganized MSMEs, which approximately accounts for
55% of the total enterprises in the MSME segment. Financial services firm Edelweiss, in
its research report Edel Pulse, said “business in the case of SMEs in the unorganized
sector was severely impacted in the first week (more than 70 per cent decline in
business activity). But it is gradually improving. The paper added: However, some pain
is still left. Some businesses have started to explore exports option. The barter system

Hardikharsora,
10
How Demonetisation Has Impacted Indian Sme, November 2016;
Https://Yourstory.Com/2016/11/Demonetisation-Impact-Indian-Sme/

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seems to be making a comeback. People are uncertain about the Government’s actions
(on ₹2,000 validity, fake ₹500 notes etc). The Goods and Services Tax (GST), plus the
real impact of demonetization, will follow one after the other and thus has the potential
to impact businesses over the long term.”11

EFFECT OF DEMONETIZATION (WHEN IT HAPPENED, TILL DATE)

After demonetization it was presumed that MSME’s would have a higher impact than
the rest of the economy as they are mainly dependent on cash transactions. The
business chain of the sector was affected badly. Tex Zippers, Vice President,
MuditTandon says, "There are hiccups in the supply-chain. For example, we could not
find a specific grade of insulation and other material we needed for our products for
many weeks after demonetization in wholesale. With our regular suppliers there was
no issue, but for odd jobs like these, which can actually stop at time, we had a
problem."12

The most important aspect for the MSME sector was the change in the mind set. They
needed to make peace with the announcement, enter the banking system, then making
it digital and then full declaration of the money involved in the business. Where the
Government on one hand said that implementation is proper, sectors, public were of the
differing view. Organized was not the main issue, it was the unorganized sector of the
MSME which was an issue. Daily wage laborers were not available, creating a vacuum
in the business cycle. The biggest problem was the generation of cash at that point of
time. It was the end of festive season and starting of wedding season, and all small
businessmen needed cash to run the show. Yes the cleanup was needed but it was very
important to support the MSME as if that had collapsed, GDP would have crashed. This

11
Hit By Demonetisation, Msmes Braced For More Challenges Ahead, Dec 28, 2016; The Hindu (Business
Line)
12
Ujjawalnanawati, At Crossroads: Msme Feel The Demonetisation Squeeze, Economic Times, Jan 03,
2017; Http://Economictimes.Indiatimes.Com/Small-Biz/Sme-Sector/At-Crossroads-Msmes-Feel-The-
Demonetisation-Squeeze/Articleshow/56306520.Cms

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step would help the MSMEs develop their technology and infrastructure, they will have
to pay taxes and that overall will help the Economy of the country.

STEPS TAKEN BY THE GOVERNMENT

Meeting with different MSME association were done and their inputs were taken into
account by the Government in taking further decisions. Most schemes of the ministry
are now online. The Prime Minister Employment Generation Programme has been
online from July 1, 2016. All schemes of the Development Commissioner (MSME) are
online and available through the My MSME app launched by the Government. 13

The Union Minister Kalraj Mishra said, “To alleviate the problems of non-availability
of credit, the ministry is implementing the Credit Guarantee Fund Scheme for Micro
and Small Enterprises in a big way. Coverage of loans under the scheme has been
increased from `1 crore to `2 crore. The size of the fund has been enhanced from `2,500
crore to `7,500 crore to facilitate collateral-free loans to MSMEs.” 14

It was said that after Note Ban, union budget somewhat revived the MSME sector. To
give a big lift to the MSMEs to blossom in a competitive environment, Finance Minister,
MrJaitley planned to reduce the tax rate of MSMEs reporting turnover of less than ₹50
crore to 25% from the existing 30%. He also made a claim that this benefit covers 96% of
the total companies in India that are filing tax returns. 15By continuous observations,
feedbacks and then accepting the fact that the smaller firms werefacing difficulties after
demonetization, theGovernment took a move to cut down income tax for firms having
turnover up to ₹50 crore will provide a big relief to the MSME sector.

With the implementation of goods and service tax, it is presumed that it will have a
marginally negative impact because of higher tax rates expected. Well, one of the
13
Msme’s Welcomed Note Ban, March 26, 2017, Business Today;
Http://Www.Businesstoday.In/Magazine/Features/Msmes-Welcomed-Note-Ban/Story/247416.Html
14
Supra Foot Note 13
15
Union Bugdet 2017: Tax Relief For Msme; Feb2, 2017;
Http://Www.Thehindu.Com/Business/Budget/Union-Budget-2017-Tax-Relief-For-The-Common-Man-
Msmes/Article17142403.Ece

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biggest generators of economy in India, MSME, has faced a lot since the end of 2016 and
the road is still tough ahead.

EFFECT OF UNION BUDGET (2017) ON MSME

After demonetization, Union Budget was a very important day for the MSME sector
and the finance minister did not disappoint. The 5% tax respite, already discussed
above, will create a huge difference in the revenue chains of the MSMEs and a
significant shift can be witnessed from proprietorship registrations to private
limited/ LLP registered firms making it a more constructive working environment
for MSME players.Finance Minister also announced that increased digital
transactions will help MSMEs with easy access to formal credit. 16It was decisive to
ensure sustainable economic development at the grass root level and the budget did not
disappoint. The four most important step by the Finance Minister in the budget for the
demonetization hit MSME sector was:17

 The Tax Rebates or benefits which we have already discussed earlier in detail that it
will create a huge difference in the revenue chains of the MSMEs and a significant
shift can be witnessed from proprietorship registrations to private limited/ LLP
registered firms.

 Availability of Credit Flow for MSME’s: The Government ispersuading SIDBI to

refinance credit institutions to provide the players with unsecured loans with lower
interest rates. Also, to generate a higher credit flow to MSME sector, SIDBI has been
asked to increase unsecured funding as per the track record. This will ensure the

16
R. Narayan, Impact Of Union Budget 2017-18 On Msme, India Information Line;
Http://Www.Indiainfoline.Com/Article/News-Business-Wire-Advertising/Expected-Impact-Of-Union-
Budget-2017-18-On-Msme-Sector-117020100774_1.Html
17
Ranakapoor, Why Union Budget Will Be A Game Changer For The Demonetisation-Hit Msme,
Firstpost, Feb 6, 2017; Http://Www.Firstpost.Com/Business/Why-Union-Budget-2017-Will-Be-A-Game-
Changer-For-Demonetisation-Hit-Msmes-3269354.Html

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flow of credit to MSME sector, without any major collateral constraint, thus
addressing the impact of demonetization and it will enable a higher credit flow.

 Evolution into a digital economyafter demonetization, becoming a digital economy

has gained further force with increased focus on encouraging digital payment in
rural and semi urban areas. The launch of Apps like BHIM and its successful
implementation by over 125 lakh people, announcement to introduce Aadhaar Pay,
a merchant version of Aadhaar Enabled Payment System, will enable better access
of formal credit to MSME segment as the condition of the firm will be
transparentbecause of the evident cash flows and transparent financial data.

 Make in India: A powerful manufacturing sector will directly benefit the MSME
sector, which plays the biggest part in the supply chain, for agricultural and food
processing as well as infra sector. Also, the effort of the Government on expanding
the ‘Skill India’, initiative to over 600 districts will increase the skilled manpower
across India. These will go a long way in preventive the inflationary pressure on
wages due to a higher concentration of opportunities in the same geography. The
tactical importance of MSME sector as a prime mover of employment and economic
growth is acknowledged all over the country.

Even the Government realizes that the MSME sector is one of the most important for the
Indian Economy and the amount of jobs they create can’t be ignored and thus this
budget has given some relief to the MSME’s and it was much needed after the
hammering of Demonetization on them. Once the MSME are comfortable with this
approach, they shall realize that it will have a great impact factor and their business
with more transparency and money security, they would hope to expand the horizons
of their businesses and reach new heights.

CONCLUSION AND SUGGESTIONS

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Last fiscal, medium, small and micro enterprises were expected to record on-year
topline growth of 14 to 16 per cent. However, the impact of demonetization has been
severe in the second half and they would have closed the year with an increase of just 6
to 8 per cent.But as the effects of demonetization fade, growth will pick up in the
current fiscal.

The Center ought to promptly act to increase awareness among Indian medium, small
and micro enterprises about the significance and advantages of cashless transactions
and digital payments, and notwithstanding that, ponder on the role trade associations
and other MSME stakeholder could play to aid this move.The Center must notify the
Micro Small and Medium Enterprises Development (Amendment) Bill, 2015, which
looks to upgrade as far as possible for invest in plant and machinery, considering
expansion and the dynamic market circumstance. Right now, there is no incorporated
approach for the improvement of MSMEs notwithstanding the way that it accounts for
40 per cent of India’s manufacturing and 45 per cent of exports. Therefore, the Centre
should come out with one comprehensive policy.

A few regions of concern relating to the GST law and its execution must also be
addressed. It is similarly critical to give extraordinary motivations to the advancement
of export, for example, freight subsidy and marketing support. There are heaps of
positive and negative effects of the present move. Nobody as of now can make certain
without bounds and this questionable condition is unquestionably not great. Results in
vulnerability rely upon the mentality and, presently, while people are taking it
positively, they definitely are starting to understand possible drawbacks too if measures
are not taken at the right time. Communication will be the key to ensure stability. And,
as we welcome the bold step taken by the Government, we areworried about the huge
task ahead to make it a success. 18Central Government’s recent decision to demonetize
the high value currency is one of the major steps towards the eradication of black
money in India. This move of Demonetization didaffect the general public, to a large

Hardik Harsora, How Demonetization Has Impacted Indian

18
Sme, November 2016;
Https://Yourstory.Com/2016/11/Demonetization-Impact-Indian-Sme/

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extent but if the larger picture is seen for the interest of the country such decisions are
unavoidable. Also, if not fully, it may curb black money to some extent.

However, in spite of the substantial importance towards actualizing industrialization at

large, MSME sector requires attention and access to timely credit both in the short term
and long term along proper guidance in the beginning. There is an expectation of a
standard shift in the approach of banks towards lending to MSMEs and technology will
play a very important aspect in transforming the way credit is offered to MSMEs. The
steps taken in the Budget will be beneficial for the sector.

According to us, goods and services tax shall play a very important role as to the future
of MSMEs. GST is presumed to benefit the sector not just because of the simpler tax
structure but also things such as improved technology. One Nation, One Tax policy
shall open new horizons for the Indian Market and giving a chance to MSME to explore
the market with no or less barriers. The GST shall give equal footing to the MSME as
compared to their bigger counter-parts. With this thought we conclude that with all the
rides for which the MSME sector went, we hope it stabilizes soon for the benefit of the
economy.

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LOK ADALATS AND ALTERNATE DISPUTE RESOLUTION

MECHANISMS: GROWTH AND CHALLENGES FACED IN INDIA

Mansi Mehrotra
*

INTRODUCTION

The twofold objective of framing the Indian Constitution as stated by Dr. B.R.
Ambedkar was :-

“I have said that our object in framing this Constitution is really twofold: (i) to lay down
the form of political democracy, and (ii) to lay down that our ideal is economic
democracy and also to prescribe every government whoever it is in power, shall strive
to bring about economic democracy....”19

Change is inevitable in law because it keeps on evolving with time. The Indian
Constitution with the means of political and economic democracy strive to achieve the
goal of social justice. Now the question that arises is that to what extent have we been
able to achieve social justice. With plethora of laws for public welfare emanating from
the State Legislature, the goal of achieving social justice has somehow blurred,
especially when we talk about building ADR Mechanisms in India. USA was the first
country to throw light on ADR mechanisms in the 70s and the idea was to avoid the
cost and time consuming nature of litigation. Now, the adaptation of a foreign concept

Student, Symbiosis Law School, Noida.

**

19
Proceedings Of The Constituent Assembly Of India, Friday November 19, 1948, Available At
Www.Parliamentofindia.Nic.In/Debates/.

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within our country is in itself challenging because of the multiplicity of pending cases.
No doubt the Indian Constitution is an adaptation of a many foreign concepts but those
concepts had the capacity to blend in our country, for instance, the concept of
Fundamental Rights was adapted from USA, but it had the capacity to stand erect
against all odds and thus promote welfare of the people. Hence, it was accepted with
open arms in our country, but, talking about ADR mechanisms, the idea in itself has
been challenged on a horde of grounds, some of which will be discussed in this paper.

The paper will discuss the growth of Lok Adalats and the emergence of the modern day
ADR mechanisms from Panchayat system. Dealing with the meaning of each of the
ADR mechanisms will make it easier to point out the flaws and challenges faced by
them in a country like India. This is exactly where the blending in of these mechanisms
become a problem. Therefore, the line of thought is to understand the problem and
suggesting solutions with the implementation of the same.

DEVELOPMENT OF ALTERNATE DISPUTE RESOLUTION (ADR)

TURNING THE PAGES OF HISTORY

Turning the pages of history, it all began with Holy text book ‘Bhandarnayaka
Upanishad’ authored by great philosopher and scholar ‘Yajnavalakya’ refer to the three
kinds of institutions which resolved disputes without the intervention of the King, the
Sovereign:

1. PUGA: Board of persons residing in a locality to resolve local disputes and

conflicts.
2. SRENI: Assembly of tradesman and artisan deciding over commercial disputes.
3. KULA: Group of persons bound by familial ties to resolve the familial matters.

The proceedings before these institutions were informal, with their members being
adept in their fields.

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GROWTH OF CONCEPT FROM NYAYA PANCHAYAT

Nyaya Panchayat at the grassroots level were there even before the advent of British
system. It is a matter of common knowledge that even today many village level
disputes are settled by the elders of the village. 20 These Nyaya Panchayats were
developed so that the principles of natural justice could be maintained and it has
jurisdiction over civil and minor criminal offences. Such Panchayats had proved to
serve as the basis of the alternate dispute mechanisms especially for those who were in
the remote villages completely unknown to the judicial system of the country.

FROM THE PANCHAYATS TO THE LOK ADALATS, WHY?

As the Panchayat system grew, the derivation of arbitration may be traced to have
found its origin to the elemental method of village panchayats which was widespread
in the primordial India. The pronouncement of the decisions by the panchas while
sitting together as jury members to a dispute, commanded immense approbation for the
reason of the well accepted faith that they were a replica of voice of God and for that
reason had to be received and complied with unquestionably. Unfortunately, with time
the Panchayat system too could not remain unquestionable.

Today, Article 39-A of the Constitution mandates the State to secure that the operation
of the legal system to promote justice on a basis of equal opportunity, and ensure that
the same is not denied to any citizen by reason of economic or any other disabilities.
The law must function in a way that all people have access to justice in spite of
economic disparities. The expression access to justice focuses on the following two basic
purposes of the legal system21:

1. The system must be equally accessible to all.

20
K.Ramaswamy, Settlement Of Disputes Through Lok Adalat Is One Of The Effective Alternative
Dispute Resolution (Adr) On Statutory Basis, 73 (P.C.Rao Et Al. Eds.,2013).
21
Law Commission Of India, 222nd Report On Need For Justice And Dispensation Through Adr Etc
(2009).

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2. It must lead to results that are individually and socially just.

In the case of Sheela Brse v. State of Maharashtra 22 , the Supreme Court has
emphasised that legal assistance to a poor or indigent accused arrested and put to
jeopardy of his life or personal liberty is a constitutional imperative not only mandated
by Article 39-A but also by Article 14 and 21. Any act which leads to injustice, corrodes
the foundation of democracy and the rule of law. A just process with transparency,
which means that the system allows public not just to see the outside but through the
inside of the justice system, its rules and standards, procedures and processes, and its
other operational characteristics, particularly its fairness, effectiveness and efficiency. 23
This was attempted to be achieved via Lok Adalats wherein, the disputes could be
settled or resolved amicably. In 1982, in Junagarh in the State of Gujarat, a forum for
alternative dispute resolution was created in the form of Lok Adalats.

The institution of Lok Adalat has its own origin not by any statute but in being
developed by people themselves as a para judicial body as ‘participatory instrument of
democratic judicial making’24. The first step towards this direction was taken by the
Govt. of Gujarat when they made certain recommendations for improving justice
delivery system and provide expeditious and cheap legal services to the poor 25. As a
result of these recommendations, the Central Govt. constituted a committee in 1980
known as the Committee For Implementing Legal Aid Schemes (CILAS). P.N.
Bhagwati headed the committee and was the first to have experimented with the
concept of Lok Adalat.

The Malimath Committee lamented over the huge pendency of cases faced by the
Courts. The Committe recommended the creation of a separate body which could also

22
Jt 1988 (3) 15.
23
Prof. Dr. A. Lakshminath Et Al., Digital Revolution And Artificial Intelligence-Challenges To Legal
Education And Legal Research,2 Cnlulj. 1,1 (2011-2012).
24
Bindu Sangra, Lok Adalats: An Instrument Of Distributive Justice, 2 Rmlnluj 157(2010).
25
Id.

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function in an adjudicatory capacity, whose decisions shall be binding upon the parties.
So, this is how the Lok Adalats came into being.

ADR: WHAT ARE THE VARIOUS MODES TODAY?

Arbitration, the Indian law of arbitration is contained in the Arbitration and

Conciliation Act 2015. The Act is based on the 1985 UNCITRAL Model Law on
International Commercial Arbitration and the UNCITRAL Arbitration Rules 1976.

Arbitration involves four major pillars: 1) An agreement of arbitration, 2) Presence of a

dispute, 3) A reference to a third neutral party for its determination also called as
ombudsman in many cases, 4) an award passed by that third party. The concept of
arbitration has also developed and arbitration is now being done in various modes.
Some of the essential modes may be listed as follows:

 Ad Hoc Arbitration: It is a mode of arbitration which is not administered by

an institution and therefore, the parties are required to determine all the
aspects. This includes from the appointment of an arbitrator, place of
arbitration, contract on modes of execution of arbitration etc.
 Institutional Arbitration: A type of arbitration which has developed as a
concept which promotes arbitration with the help of specialised institutions
which functions as an adjudicatory body of the dispute referred to in the
arbitration.
 Statutory Arbitration: With the role of the State already discussed earlier in
the administration of justice to people, there exists provision for matters
being referred to arbitration.

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Conciliation is an unstructured method, wherein, neutral person meets the parties to

resolve the dispute between them. The third party facilitates communication between
parties to help them settle their differences.

Lok Adalats are courts set up to settle or resolve disputes amicably without following
the conventional method. This reduces the time taken and promotes meting out of
justice.

Mediation is a process in which the mediator who is an external person is appointed by

the mutual consent of the parties thus, assisting the parties to find ways to arrive at a
solution. Mediation is a more structured phenomenon where negotiation skills are used
to arrive at a solution amicably.

Negotiation is a mode of dispute resolution where the parties themselves take the lead
for the settlement of a dispute that has arisen. It involves a communication process to
resolve conflicts voluntarily wherein the parties consult their lawyers and appear for
the negotiations thus arriving at wide range solutions and maximizing joint gains. It is a
non binding process.

OBJECT OF ADR

India has evidently borrowed its judicial system from the British. However, mere
borrowing does not make this system efficient enough to bring about an adequate
justice dispensing system in the country. The idea is not only to impart justice but also
to uphold tranquility in the society. It is better if two persons can sit around a table in
somebody’s company who points out a little bit of give and take would really resolve
the dispute rationally and reasonably to both sides and that’s a healthier approach in
resolving disputes than going to court and finding one side winning everything and
other losing everything.26

26
Dr. Anupam Kurlwal, An Introduction To Alternative Dispute Resolution System (Adr) 2 (1st Edn. 2011).

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Since the ADR system has been borrowed from the foreign countries, it becomes all the
more important for us to not only administer justice but to administer it in accordance
with the society prevalent in India. The reason why society must be considered is
because the Indian society is very different from that of foreign and an application of
the replica of British Judicial system in India may fail. Thus, the goal here is to MAKE IT
WORK. The 77th report Law Commission of India observed that the Indian society is,
predominantly an agrarian society and is not refined enough to comprehend the
technical and awkward procedures pursued by the Courts. 27 Ever since the 1990s, ADR
has not only been into discussion but has also been a root of many major challenges
especially in India.

CHALLENGES FACED BY ADRS AND LOK ADALATS IN INDIA

ARBITRATION

Arbitration is a voluntary agreement entered into between or among two parties who
are in dispute.28 These parties also agree upon the arbitrator of their choice who assist
the arbitration proceedings. However, as stated earlier, arbitration in itself faces a
number of challenges in India.

Ad hoc arbitration:- In such arbitrations, the parties get to choose their arbitrator
according to the act of 2015. The arbitrators in an ad hoc arbitration are usually the
retired judges of the High Court and Supreme Court. The purpose to appoint retired
judges as arbitrators is to keep the proceedings informed and in accordance with law.
However, such retired judges usually experienced, work as arbitrators but putting the
efficiency at stake. The reason behind this is that these retired judges are highly aged,
which largely affects the efficiency of the work. It is almost like a link which leads to
shattering of the purpose with which ADR was introduced as a concept. Even if the
arbitrator is not a retired judge, there is always a challenge that our country faces and

27
Id.At 3.
28
N.K. Acharya, Law Relating To Arbitration And A.D.R. 1 (3rd Edn. 2012).

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that is lack of training. Today , the idea of arbitration is only to earn large amounts of
money through cases.

Institutional Arbitration:- Under this type, arbitration is conducted by an arbitral

institution and also in accordance with the rules it prescribes. The Indian Council for
arbitration performs arbitrations according to its rules and regulations. However, the
power granted to such arbitration institutions are all very wide and comprehensive to
the extent that the Council can reject requests for arbitration and can also determine the
eligibility of the arbitrator.

However, both the aforementioned types of arbitrations can be criticized in the

following ways:-

Efficiency, as stated above that appointment of the arbitrators which are retired
Supreme Court and High Court judges, leads to lack of efficiency because most
of the judges like to adjourn the proceedings. Even though subjective and may
vary from one arbitrator to another, but efficiency is one such challenge that is
shattering the purpose of arbitration. Due to continuous adjournments and lack
of efficiency no such decision is being met thus leading to another challenge,
which again was the purpose of establishing the alternate dispute mechanisms.
Speedy justice, yet another reason to promote ADR in our country but with
regular adjournments and lack of clarity , if the case itself takes 3 to 5 years, again
the purpose of arbitration gets defeated. Satisfactory Remedies, Ad hoc
arbitration deals with International Commercial Arbitration. The issue that it
faces is that the parties can be international investors who are naturally
uncomfortable with the appointment of a national arbitrator because of national
bias and also , the parties remain dissatisfied with the appointed arbitrator. Low
Costs, One of the most essential features of anADR mechanism is its cost
effectiveness. However, the benefits flowing from such institutional arbitrations
are limited in its low costs or fees, but the established and reputed arbitrators

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shirk from participating in arbitrations under the council, because of low levels
of remuneration that they are entitled to. 29 This is one of the primary reasons, one
can only practice arbitration as a part time job in our country.

CONCILIATION

Since conciliation involves a third party which becomes a source of communication

between the parties, there is always a scope of misunderstanding thus affecting the
efficiency of the conciliation.However, due to lack of training and facilities, the pre-
requisites of a proper conciliation are not met.

LOK ADALATS

After the amendment of the Legal Services Authorities Act in 2002, “Permanent Lok
Adalats” became a part of the act. The aim of these Lok Adalats is to help the illiterate
and the backward and bring about speedy justice to the aggrieved parties. However,
Lok Adalats themselves have become a challenge because when an application of a case
is made to a Lok Adalat, then no party can invoke jurisdiction of any other court,
moreover, the provisions of Civil Procedure Code, 1908 and the Indian Evidence Act,
1972 shall not apply. The Allahabad High Court observed that “in the name of the
speedy resolution of disputes, the fair interest of the parties cannot be sacrificed, more
importantly when the petitioners involved are minors, insane and disabled” as in the
case of Manju Gupta v. National Insurance Company 30. Even the Kerala High Court
pointedly observed the drawbacks that “However, the major drawback in the existing
scheme of organization of the Lok Adalat under Chapter VI of the Legal Authorities Act
is that the system of the Lok Adalat is mainly based on compromise or settlement

29
A.K. Bansal, International Arbitration In India, 6 Am. Rev. Int'l Arb. 191, 191 (1995).
30
I (1994) Acc 242.

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between the parties . If the parties do not arrive at any compromise or settlement, the
case is either returned to the court of law or the parties are advised to seek remedy in a
court of law. This causes unnecessary delay in the dispensation of justice.” Hence Lok
Adalats, themselves act as a challenge to an alternate dispute mechanism.

MEDIATION

As stated by Hon’ble Justice Altamas Kabir, “mediation is a tool for personal

empowerment for self-determination”31. However, the challenges continue to prevail:-

Lack of a trained mediator is one of the most crucial setbacks and one of the biggest
challenges faced in India. A mediator not only acts as a facilitator of the proceedings of
mediation but also, help in recognizing the issues of the case, thus, aiding in reaching a
valid decision in favour of the just. However, such functions can only be performed if a
mediator is trained in a certain way. On 8 th July, 2012, in the National conference of
Mediation, New Delhi, Hon’ble Justice Siri Jagan, High Court of Kerala, expressed his
concern regarding the lack of trained mediators . 32 Lack of referrals, Section 89 of the
Civil Procedure Code states that it is obligatory on the part of the judge to refer the case
that they are dealing with to any one mode of alternate dispute resolution. However, it
has been found that the judges are not making such references. Absence of suitable
legislation, like there is a separate act called the Arbitration and Conciliation Act, 1996,
there is no separate statute when it comes to mediation. Even if there is a mediation and
conciliation Project Committee instituted by the Supreme Court of India, it is a necessity
that an apt legislation on mediation is framed. Misunderstanding leading to unhealthy

31
Nalsa Report (Page 2), Keynote Address By Hon’ble Mr. Justice Altamas Kabir, The Chief Justice,
Supreme Court Of India And Executive Chairman Report Of The Third National Conference On
Mediation Held At Vigyan Bhanvan, New Delhi , (8th July, 2012).
32
Id At 26.

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arguments is a common sight in mediation. Imbalance of power, if in any case one of

the parties is economically or politically stronger than the other, it is then that the one
can act as dominant over the other. Neutrality of the mediator, in the course of “free
discussion” during mediations, there is always a need to maintain the neutrality by the
mediator. However, by the end of the discussion, due to the lack of the skills and
knowledge of the mediator, the entire process turns out to be futile when the mediators
create a perception and start giving opinions with lack of knowledge and skills also
known as the “Flat Earth Syndrome.”

NEGOTIATION

A type of self counseling amongst the parties is termed as negotiation. But Negotiation
doesn’t have any statutory recognition. 33 This lack of statutory recognition in itself
proves that it is merely a conversation between the parties so that by the end of it there
is a common decision or settlement is reached thus making it a less preferable option.
So why will any other client even resort to a method that is not even framed properly as
a statute. Any negotiation cannot guarantee the good faith or trustworthiness of any of
the parties.34

CONCLUSION

ADR MECHANISMS: AN ANALYSIS

The ADR mechanisms are expanding their horizons and have reached India to develop
and reduce the burden on the judiciary which is overloaded with cases. However, being
a personal witness to some of the arbitration proceedings at the Delhi International
Arbitration Centre have made me realize that merely infrastructure and the
development of these ADR mechanisms and Lok Adalats in our country are not going

33
Legal Services India, Available At Http://Www.Legalservicesindia.Com/Article/Article/Negotiation-
Mode-Of-Alternative-Dispute-Resolution-245-1.Html .
34
Department Of Justice Canada, Available At Http://Www.Justice.Gc.Ca/Eng/Rp-Pr/Csj-Sjc/Dprs-
Sprd/Res/Drrg-Mrrc/03 Html.

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to be helpful. What is needed is implementation so that these mechanisms are no longer

part time but full time solutions to the pending disputes. I have even realized that these
arbitrators earn huge amounts from the parties themselves. The parties who are ready
to pay weigh higher in the proceedings. So now an alternative where there is influence
on the person deciding the case, will the idea of justice ever be met ?

AUTHOR’S PERSPECTIVE

The method of ADR mechanisms has been gaining popularity in the country with a
good speed. Approaching Courts is not a matter of concern now, as it used to be earlier.
The Lok Adalats have been able to solve a huge number of 1118210 cases in the recent
Lok Adalat held across the country 35. However, these mechanisms still need a lot to be
worked upon, especially the fact of biased arbitrators and that of many international
parties preferring arbitration proceedings outside India mainly because of the
inefficiency of the Indian Arbitration Mechanisms, are saddening. Thus, the goal here is
not only to achieve justice but to achieve it effectively by improving these mechanisms.
Some of the suggestions can be as follows:

1. Awareness programmes for promotion of settlement of disputes through ADR.

2. Inspire people to settle their disputes rather than taking the matter to the courts.
3. Appoint qualified trainers who can train the people who shall settle the disputes
between people.
4. Take the concept of ADR mechanism beyond the cities where the crowd is not
well financially sound. The Gram Nyalaya should try to resolve as many
disputes as possible in the village.

35
National Legal Services Authority Of India, Report On Disposal Of National Lok Adalat Held On
09.09.2017 (For All Types Of Cases) (September, 2017).

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5. More time entrusted to these ADR mechanism system to adjudicate so as to

ensure proper justice.
6. The awards passed by the ADR mechanism shall be given more legal validity
and value in law.
7. The present delay in disposal of court cases is mounting in geometrical
proportions and is likely to create a crisis of confidence and therefore, it requires
a resolute determination and strong will to introduce court-annexed mediation in
the Indian legal system.

The aforementioned solutions might be known to all but if we ask ourselves the
question of the extent of their success, the answer is evident enough that there still
remains a lot to be implemented. The challenge here is not the existence of problems,
the challenge is implementation of the solutions, so that the extent of success of these
mechanisms in fulfilling the aim of the Indian Constitution is not only increased but is
also meeting the ends of social justice.

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JUDICIAL INDEPENDENCE- A GARB FOR JUDICIAL PRIMACY

*
Mansi Jain & *Siddarth Jain

INTRODUCTION

A panoramic view on the concept of independence of judiciary is necessary which

entails the idea of judicial accountability "towards the law" which is too simplistic.
However, one needs to establish the link between judicial independence and judicial
accountability. According to Mr Donaldson M.R36who summed up the commonly held
view of the judges and commented on the above statement: "The essence of my job is
that I am responsible to the law and to my conscience and to no one else 37.”Judicial
accountability dictates the need for public confidence in the independence and
impartiality of the courts.

**
Student, Symbiosis Law School Noida.
**
Student, BVDU, New Law College, Pune.
36
Meridankholer, Judicial Accountability: The Justice System At 50; Aging Or Ailing, Nmls L.J, 6, 6-67,
(2012).
37
Small, Hugh, The Honourable, Judge Of The Supreme Court Of The Commonwealth Of Barbados, ‘
Judicial Power And Accountability’, Paper Delivered At A Continuing Legal Education Seminar, October
21, 2000. Wilj 25 (1) & 2, 2000, P 19. His Lordship As He Then Was, Thirteen Years Ago Concluded That
The Time Was Ripe For Jamaica To Embark On The Course Of Creating A Code Of Judicial Conduct.

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The constitutional model of appointment functioned admirably just amid the main
decade after 1950. 19 Judges were selected to the Supreme Court, between January 1950
and November 1959, and every last one of them was delegated on the suggestion of the
CJI. Concerning the High Courts, 211 appointments were made along a similar period
since 1950, out of which 210 were made on the consent and the concurrence of the CJI. 38

However the scenario has changed after 1960’s when several land reforms were coming
under Article 3139; the expression “compensation” was interpreted as “full
compensation”. The acting of the supreme court of India was felt to be antagonistic to
the societal needs by the government of India thereby it was assumed that the judges
who are capable to comply with the economic policy of the government should be the
‘forward looking judges’ of the high court and the supreme court. A climate of
'executive compliance' began to prevail at that time. 40“With a stroke of judicial
creativity the amendatory power of the parliament under Article 368 41 COI were
justly handcuffed in the Keshavanada Bharti case 42”43, following which the
government superseded the three senior most Judges of the Supreme Court for the
appointment of next CJI.

The struggle for judicial independence and the need of transparency was going on and
the same can be seen mainly in the four landmark cases, which describes about how the
court applied the rule of interpretation or golden interpretation in these cases. The
authors will be throwing light upon the four judge’s cases.

THE FIRST JUDGE’S CASE44

38
Ajit P. Shah, Judges' Appointment And Accountability, 3 Madras L.J.19, 21-22 (2012). (Discussing The
Functioning Of The Appointment System In The 1950’s).
39
India Const. Art. 31.
40
Fali S. Nariman, Before Memory Fades 387 (Thomson Press India Ltd. 2010).
41
India Const. Art. 368.
42
Keshav Nanda Bharti V State Of Kerala, (1973) 4 Scc 225 (India).
43
Vaidyanathapura R. K. Iyer, Judge’s Potpourri 67 (Universal Law Publishing Co. Pvt. Ltd. 2007).
44
S.P. Gupta V. Union Of India (1981) Supp. 1 Scc 574 (India).

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Through a slim majority of 4:3 The Supreme Court of India held that the power of
appointing judges under article 124(2)45 and 217(1)46 resides solely and exclusively in the
hands of the central government in the name of the president of India and effective
consultation with certain constitutional functionaries i.e. Chief Justice of India.
However, to the above judgment J. Bhagwati opined that the stated articles imply
consultation not concurrence therefore the central government is free to descend its
own judgement on the appointment, non-appointment or transfer of judges of higher
judiciary as long it has not arrived through malafides. Moreover majority even said that
in many democratic countries like UK, Canada 47 and New Zealand follow the same
procedure of appointment of the judges48.

The majority of the Court speaking through Bhagwati, J. said:

"This is of course, not an ideal system of appointment of Judges, but the

reason why the power of appointment of Judges is left to the Executive
appears to be that the Executive is responsible to the Legislature and
through, it is accountable to the people who are the consumers of Justice.
The power of appointment of Judges is not entrusted to the Chief Justice
of India or to the Chief Justice of a High Court because they do not have
any accountability to the people and even if any wrong or improper
appointment is made, they are not liable to account for any such
appointment."49

45
India Const. Art.124 Cl.2.
46
India Const. Art.217(1).
47
Perspective From The Canadian Judicial Council, Canadian Judicial Council.Canadian Judicial Council.
(2016), Https://Www.Cjc-Ccm.Gc.Ca/English/News_En.Asp?Selmenu=News_2007_0220_En.Asp(Last
Visited Aug.15, 2017).
48
Justice P.M. Mukhi, B.J. Divan, Chinnappa Reddy, J.R. Vimadalal, Sankalchand Seth, And A.P. Sen
Were Transferred From Their Parent High Court. Justice S. Rangarajan Was Transferred To Sikkim
Because He Delivered A Judgment In Favour Of Kuldeenayar. Justice R.N. Agarwal Who Concurred Was
Reverted As A Sessions Judge And That Too, After Four Years Of Service To The Delhi High Court. Last
But Not The Least, The Tenure Of Mr. Justice U.R. Lalit Was Not Extended Because Despite Pressure
From The Government, He Continued To Grant Bail To Under-Trail Prisoners During Emergency.
49
Vaidyanathapura R. K. Iyer, Supra Note 4 (Para 29).

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However, in many constitutional debates it was suggested that Consultation

should be regarded as Concurrence however, the above suggestion did not gain
majority to which Dr Amdedkar remarked:

“With regard to the question of the concurrence of the Chief Justice, it

seems to me that those who advocate that proposition seem to rely
implicitly both on the impartiality of the Chief Justice and the soundness
of his judgment. I personally feel no doubt that the Chief Justice is a very
eminent person. But after all, the Chief Justice is a man with all the
failings, all the sentiments and all the prejudices which we common
people have; and I think, to allow the Chief Justice practically a veto upon
the appointment of Judges is really to transfer the authority to the Chief
Justice which we are not prepared to vest in the President of the
Government of the day. I therefore think that is also a dangerous
proposition”.50

Therefore, in this case literal rule of interpretation was applied and it can be
concluded that India resorted to self-rule that the President may consult the
Chief Justice of India but is not bound by the same. Justice Bhagwati committed
an error in respect of Article 21751 where he opined that consultation shouldn’t be
binding. However it cannot be seen in the same fashion in respect of the
appointment of the subordinate courts to which he commented that since the
high court judges will be fully aware of the candidates of the subordinate courts,
therefore they are the correct persons for the appointment, thereby saying that
president is not the right person for the appointment of the judges of the
supreme court and the consultation given by the high court judges will be
binding if the matter deals with the appointment of the subordinate judges.

50
Constituent Assembly Debates: Official Report 258 (1949).
51
India Const. Art. 217.

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THE SECOND JUDGE’S CASE

In the Second Judges Case52SP Gupta was overruled by the majority which tested
it vires and came to a conclusion that Chief Justice of India is the most eminent
person to appoint the judges because he is best equipped to gauge and
understand the capabilities and limitation for the seat of the judge. Moreover to
eradicate the political influence in the appointment process it is necessary the
final verdict should be in the hand of the chief justice of India. Therefore in
consideration to this it can be seen that executive was given the marginal power
for the appointment process. They can only object to the proposal if they had
good reason for viewing the appointment as unsuitable. However if after
disclosing the unsuitableness, the CJI is still not convinced then the view by the
CJI will be construed over and above then the recommendation given by the
president.53

THE THIRD JUDGE’S CASE54

Amid eight months of Justice Punchhi'sholding as the CJI, a substantial number of his
proposal were found questionable which stimulated the Law Ministry to point that the
Chief Justice had not counselled with the senior most judges according to the Second
Judges' case. In the landscape of these conditions,the Central government through the
president made a reference to the Supreme Court under Article 143(1) 55 of the COI
looking for the perspective of the Court. A nine Judge bench held that the evaluation of
the Chief Justice which holds supremacy in the matter of appointment in the Higher
Judiciary is to be encircled in direct with the Collegium of Judges. Regarding the
association of the Collegium the assessment goes ahead to revise the greater part choice
in the Second Judges' case by setting the collegium at (1+4) i.e. the CJI and the four

52
Supreme Court Advocates On Record Association V. Union Of India (1993) 4 Scc 441 (India).
53
Meridankholer, Supra Note 1.
54
Special Reference No. 1 Of 1998 (1998)7 Scc 739 (India).
55
India Const. Art.143 Cl 1.

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senior most puisne Judges for appointment in the Apex Court. Regarding appointments
and transfers of High Court Judges, the collegiums remains the same at (1+2).

The decision in the Second and Third Judges' has been adversely commented upon,
often justifiably. Sir Robin Cooke, Former President of the Court of Appeal of New
Zealand, in his speech titled "Making the Angels Weep"56, said about the Second
Judges' case, "The majority of the Court may have gone too far, if their conclusions be
viewed as an interpretation of the Constitution intended to be binding in
law...However, vulnerable in detail, it will surely always be seen as a dramatic event in
the international history of jurisprudence."

The judgement has been criticised by many people, according to them, the matter which
is decided by the collegium lacks transparency and biasedness. Instead of the executive,
now the primacy rests with the Collegium of Judges. During a lecture in New Delhi,
Justice Ruma Pal57 said

"the very secrecy of the process leads to an inadequate input of

information as to the abilities and suitability of a possible candidate for
appointment as a judge. A chance remark, a rumour or even third hand
information may be sufficient to damn a judge's prospects. Contrariwise a
personal friendship or unspoken obligation may colour a
recommendation. Consensus within the collegiums is sometimes resolved
through a trade-off resulting in dubious appointments with disastrous
consequences for the litigants and the credibility of the judicial system.
Besides, institutional independence has also been compromised by
growing sycophancy and 'lobbying' within the system."

Soli J. SORABJEE, Law And Justice: An Anthology247 (Universal Law Publishing 2nd Ed., (2003).
56

Mp Singhan Independent Judiciary, 8madras L.J. 43, 46-47 (2011)(Discussing The Importance Of
57

Transparency In The Appointment System).

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The term collegium is not defined nor is found in the bare text of the Constitution or
preceded constitutional debates 58. It used to exist in Russia and then in the USSR. 59 The
collegium consist of CJI and Four Puisne Judges of the apex court, they make a
recommendation to the Union Ministry of law and Justice which is forwarded to Prime
Minister and then PM advice the President. Moreover, in the appointment of the judges
of the High Court the collegium comprises of the chief justice and two senior most
judges of the High Court. they in turn give their recommendation to the chief minister
of the state, who passes on to the governor. And this recommendation is then passes to
the CJI who in consultation with the Supreme court judges finally pass the
recommendation to the union ministry of law and justice and finally it is send to the
president via prime minister.60

However, the collegium system has failed with more transparent and apt
recommendation. It is highly affected by the nepotism and favouritism 61. There is a lack
of element of accountability and transparency as the collegium appoints according to
their whims and fancies. Moreover it is not even subject to any guidelines or
restrictions. Even an overtly objectionable recommendation is not questioned or cannot
be judicially reviewed. The only thing which can be questioned is the procedure and
not the decision.

THE FOURTH JUDGE’S CASE62

After SP Gupta63, it can be seen that the appointment of judges was in hindrance to the
basic structure principle i.e. independence of judiciary. In the second judges case 64 it

58
David Annoussamy. Selection Of Judges, A Quadrature Of Circle. 4madras L.J. 13, 13-14 (2016).
59
The Russian Equivalent Is Kollegiya. It Was Introduced In The Russia In The 18th Century By Tsar
Peter. I.
60
Vaidyanathapura R. K. Iyer, Judge’s Potpourri39 (Universal Law Publishing Co. Pvt. Ltd.2007).
61
V. Lakshminarayanan, Collegium Is Dead. Long Live The Collegium, 6 Madrasl.J. 57, 57-58 (2014)
(Discussing The Drawbacks Of The Collegium System).
62
Supreme Court Advocates On Record V Union Of India (2016) 5 Scc 1 (India).
63
Supra Note 6.
64
Supra Note 10.

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was held that judicial independence cannot be compromised. The 99 th amendment to

the Constitution inserted three articles 124A65, 124B66 and 124C67. The main objective of
the NJAC (National Judicial Appointment Commission) was to create an independent
body for the appointment of the judges. The Supreme Court Advocates-on-Recordvs.
Union of India(2015) which was filed by the association of the Supreme Court was a
type of a petition which mainly focused upon to test the vires of the 99 th amendment.To
undo the executive primacy as envisaged by the 99th amendment which allegedly
shifted the power from the judiciary to the executive’.

There was a failure to appreciate the larger constitutional framework. It was thought of
that the participation of the prime minister, the leader of the opposition party and the
union ministry of law and justice will not be able to deliver a proper recommendation
or will not be able to appoint apt judges which the judiciary requires and will
consequently lead to politicization and will pollute the same. And eventually the judges
who are appointed through NJAC68 will be gratified towards the politicians and will
work according to them. Thus this very amendment was striked down through both the
houses and various state legislatures, adding to it the majority even warned the
consequences of the political influence. But as a concern it can be seen that the decision
turned a deaf ear to many principles which encircles the basic structure. National
Judicial Appointment Commission (NJAC) Bill 2014 was formulated where an
independent body will be held responsible for the appointment of the judges.

“The Law Commission chairman justice AP Shah, who faulted the

collegiums system for lack of checks and balances, emphasized the
proposed judicial appointments commission should have majority of

65
India Const. Art.124 Cl A.
66
India Const. Art. 124 Cl B.
67
India Const. Art.124 Cl C.
68
The National Judicial Appointments Commission Bill, 2014.Rajyasabha (2014),
Http://Www.Rajyasabha.Nic.In/Rsnew/Bill/Rs_Bill_Debate/Njac-House%20-%20e.Pdf.

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judge and its recommendations should ordinarily be binding on the

government”69 .

“The NJAC bill was proposed as an alternative to the collegium system

that would address the latter's gaping inadequacies and create a more
accountable and inclusive process of appointment of judges. And yet, it
appears that the NJAC70 bill, while failing to address the collegium
system's failings, comes with its own. The objective of said Act is seeking
to broad base the appointment of Judges in the Supreme Court and High
Courts, enables participation of the judiciary, executive and eminent
persons and ensures greater transparency and accountability.”71

A Parliamentary Democracy and an Elected Government which voices the will of "We,
the people of India” are without a doubt is a part of basic structures which can't be
disregarded. Certainly, the most responsible office in a parliamentary government is
that of the Prime Minister. The Leader of Opposition speaking to the elective voice in
the Parliament is yet another essential element of our Constitution. Since the two, Prime
Minister and the Leader of the Opposition are from different parties in this manner
there is less or no extension left for wrong or one-sided determinations with reference to
the appointment of the judges.

This decision of striking down the 99 th Constitutional amendment was basically

shielding only one principle however turning a deaf ear to others, however this is
illogical to protect one and garbing the restin the name of the political influence.

“A constitutional court, while interpreting the Constitution, had to base

the judgement on constitutional principles. There is no constitutional
principle that democracy and its institutions have to be saved from elected

69
Meridankholersupra Note 1
70
Id.
71
Falakyaraskari, Questions Of Constitutionality: A Comment, 6 Madras L.J.4, 5-6 (2015) (Discussing The
Drawbacks Of The Collegium System)

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representatives. The Indian democracy cannot be a tyranny of the

unelected and if the elected are undermined, democracy itself would be in
danger. Are not institutions like the Election Commission and the CAG
not credible even though they are appointed by elected Governments?
There is no principle in democracy anywhere in the world that institutions
of democracy are to be saved from the elected.”72

However, the Supreme Court's thinking in taking up this contention to dismiss the 99th
amendment was profoundly mystical and inaccurate. The Supreme Court took plan of
action to the logical fallacy to arrive at the judgement i.e. even if we consider that
Executive Primacy is fatal to Judicial Independence which is a basic structure, by
implication since it is an sine qua non for judicial review which is invariably a basic
structure, that does not imply that Judicial Primacy is the way to go about it. What
about the middle way where both could decide? Would that too thwart Judicial
Independence? Well it’s not!

Moreover, there are many drawbacks 73 where the fallacy can be drawn. Firstly, when
Supreme Court said that the position of law is what the position of law is under Article
14174. The pre-eminence should be given to it but not the whole position per se.
Secondly, it cannot be implied that the role of the executive is diminished to the role of
executive after the introduction of 99th amendment and it is not same or intact. Thirdly,
the role of the executive can be further diminished as the text of the NJAC provides that
the composition of the NJAC75 can be subject to amendment and it also contain the
members from judiciary as well.

72
Arunjaitleyon Njac Verdict: Democracy Cannot Be ‘Tyranny Of The Unelected’.The Indian Express.
(Aug. 15, 2016, 10:04 Am).
Http://Indianexpress.Com/Article/India/India-News-India/Njac-Sc-Verdict-Democracy-Cannot-Be-
Tyranny-Of-The-Unelected-Says-Arun-Jaitley/.
73
R.Shahirabanu, An Overview Of National Judicial Appointments Commission Bill, 2 Madrasl.J. 17,21-22
(2015) (Discussing The Drawbacks Of Njac).
74
India Const. Art. 368
75
Supra Note 38.

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Under Article 12476 and 21777 of the Constitution of India, which says that CJI is the
authority for consultation and the President has the power for the appointment of the
Judges. The basic principle through which the court interprets is that of the literascripta
i.e. literal interpretation. When the court needs to interpret something they interpret
through its basic meaning on the face of it, however the court goes into deeper side
when the interpretation is not clear for the purpose of the law. That’s when court
applies the rules of golden interpretation or purposive construction but it cannot
detriment what is enshrined in the Constitution. The second judges’ case was a
takhtapalat78i.e. it conferred power to the CJI while diminishing the Presidents power,
thereafter in Third Judges Case the CJI opinion was binding and was considered as the
opinion of the collegium. However the fourth judge’s case crossed the entire limit in the
Grab of interpretation where it implied the meaning of the expression “Exclusivity”
giving the CJI the utmost power and reducing the President’s power to the rubber
stamp.

RECOMMENDATION

The authors believe that independence of judiciary and sovereignty of the Indian
parliament can and must co-exist79. Parliament sovereignty though not being the
essential feature of our basic structure as compared to Independence of judiciary,
however to strengthen the latter it is not prudent to undermine the former which is the
very soul of our democracy80.

76
Supra Note 9.
77
Supra Note 10.
78
Reversal Of Power
79
Datoparamcumaraswamy,(Former Un Special Rapporteur On The Independence Of Judges And
Lawyers) “Tension Between Judicial Independence And Judicial Accountability” Text Of A Speech
Presented To The International Centre For Ethnic Studies -Sri Lanka On 17 October 2003.
Http://Www.Article2.Org/Mainfile.Php/0205/104/ Param Further Commented That “The Conduct Of
Lord Denning In Those Circumstances Demonstrated [The] Highest Judicial Integrity And Compassion.
80
Denning, Alfred And Thompson, The Road Justice1 Wm S. Hein 10-11 (1955).

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THE FAST PROCESS IN IBC- INSTRUMENTALITY OF

ARBITRARINESS

*
Shravan Belsare & Jinisha Motwani

RESEARCH OBJECTIVES

Every statute has its own consequences- positive or negative. The research objective
here, mainly is to critically analyse the Insolvency & Bankruptcy Code, 2016 by taking
relevant examples from case laws and by creating fictional situations for the purpose of
understanding a deficiency in the code. As a code is a complete legislation in itself, the
objective is to verify its strength in that regard. Another objective is to find out the
magnitude of arbitrariness allowed to some of the parties and whether injustice has
been done to the other parties.

**
Students, Gujarat National Law University.

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RESEARCH QUESTIONS

The Central Research question of the paper is:

 Whether the code provides arbitrary power under the shade of hastening the
process to
- Insolvency Resolution Professional.
- Financial Creditors.

Other Research questions are as follows:

 Whether the duty of an RP u/s 25(1) means to run the entity as a going concern?
 Can a financial creditor claim be accepted without supporting evidence? If yes,
then till when does the creditor have to submit the evidence? If the creditor fails,
does it make the Committee of Creditors void ab initio and its resolution null
and void?
 Whether Bona-fide transactions entered into by the corporate debtor with
directors or related parties are avoidable (if undervalued)?
 Who is entitled to receive the Information Memorandum?

CONCEPT NOTE/ABSTRACT

The introduction of the Insolvency and Bankruptcy Code, 2016 embarks a beginning to
a smoother passage for reforms in the banking sector, primarily aiming at reduction in
losses arising out of NPA. The research is limited to insolvency for corporate persons.
With a maximum prescribed time of 180 (+90) days for insolvency resolution process,
the legislation has prompted a new role in the form of Insolvency Resolution
Professional. The BOD is virtually replaced by the IRP, who is appointed by the
financial creditors. The paper focuses on grave concerns pertaining to but not limited to

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the independence and role of the IRP. The paper critically analyses the arbitrary
executory power vested upon the IRP to run the business. The paper further dwells on
the question of inclusion of a creditor in the committee of creditors- whether or not it
totally depends on the whims of the IRP. If such a problem of inclusion arises at a later
stage, then the legality of the resolutions passed by such a committee becomes
questionable, thereby defeating the entire purpose of a speedy process. Moreover, the
duties of IRP mentioned in section 25, especially those under 25(1) can be vague and
ambiguous. The paper, with the assistance of precedents, tries to ascertain whether the
duty means to run the business as a going concern. The other significant problem that
arises is with regards to related parties. The most powerful organ in the Insolvency
Resolution Process is the committee of creditors, which comprises of financial creditors-
the constitution of which is done solely by the IRP. The likelihood of a related party
being entered into such committee by the corporate debtor is high which might
inevitably influence the decisions of the committee to its favour. The paper tries to
provide an overlook of the power of such inclusions vested upon the IRP to the extent
that the supporting evidences of the claim can be submitted just before the approval of
the resolution plan. The paper attempts to form a conclusion regarding IBBI (CIRP)
Rules, 2016, with an exclusive focus on the constraints of a valid resolution plan, and
calculate its impact on the losses caused to the banks in the form of NPA.

RESEARCH FINDINGS

The Insolvency and Bankruptcy Code, 2016 is indeed a legislation which would solve
many of the corporate problems. The dilemma and inefficiency caused by various laws
operating on debt recovery has been bought to an end by the code. It provides for two
things- Insolvency Resolution Process and if it fails, liquidation process. The Insolvency
Resolution Process is mandated to be completed within 180 days, with a permissible

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extension of 90 days. If the plan is not made within the period or if it is not approved,
then the corporate debtor shall be liquidated.

CORPORATE INSOLVENCY RESOLUTION PROCESS

1. Filing of insolvency proceedings either by the Corporate Debtor, operational

creditors or financial creditors 81 on the event of default of an amount not less
than Rs 100000.
2. Admission/Dismissal of the petition on merits. Admitted if the petition is
complete: proved event of default and proposed IRP.
3. Appointment of IRP and declaration of moratorium period for 180 days82.
4. The custody of assets of the corporate debtor is taken by the IRP. 83
5. Call for claims and admission of claims by the IRP.
6. Constitution of the Committee of Creditors by the IRP84.
7. Appointment of RP by the Committee of Creditors 85.
8. Preparation of Information Memorandum by the RP.86
9. Inviting Resolution Plans by various parties.
10. Examination of the plans, as to whether they satisfy the criteria mentioned in
section 30(2) and Regulation 38 of the IBBI (Insolvency Resolution Process for
Corporate persons) Regulations, 2016.
11. Approval/Disapproval of the Resolution Plan by the Committee of Creditors.
12. Approval of the plan by the NCLT. If no plan is accepted by the committee, the
corporate debtor is liquidated.

1. SUBMISSION AND ACCEPTANCE OF PROOF FOR SUBSTANTIATION OF

CLAIMS

81
The Insolvency And Bankruptcy Code 2016, S 6.
82
The Insolvency And Bankruptcy Code 2016, S 14.
83
The Insolvency And Bankruptcy Code 2016, S 17.
84
The Insolvency And Bankruptcy Code 2016, S 21.
85
The Insolvency And Bankruptcy Code 2016, S 22.
86
The Insolvency And Bankruptcy Code 2016, S 29.

40
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In step no. 5, different creditors file their claim to the IRP for which they have to
substantiate the same. The IBC provides for the rules of the same in Chapter IV- IBBI
(Insolvency Resolution Process For Corporate Persons) Regulations. Regulations 8-14
govern this:

Regulation 10Substantiation of claims: The IRP/RP can call for evidence from the
claimants as he deems fit, to substantiate their claim. The authority vests solely with the
IRP/RP so as to decide the magnitude of proof required for the admission of a claim.

Regulation 12 Substantiation of Proof of Claims: a creditor can submit the proof of his
claim upto the last date mentioned in the public announcement. If the creditor fails in
doing so, he can admit the proof till the approval of the resolution plan. However, a
financial creditor shall be deemed to be one from the date of admission of his claim. The
proviso states that such inclusion won’t affect the decisions taken by the committee
prior to such inclusion.

Regulation 13 Verification of claims: The IRP/RP shall verify the claims and maintain a
list of creditors with the amount admitted.

Regulation 14 Determination of amount of claim: If the amount is not precise because of

contingency or other reason, the IRP/RP shall admit amount as per his estimate. The
IRP/RP shall revise the claims when he feels it to be practicable, or he comes across
such revision.

Regulation 8 has a proviso mandating all the financial creditors to file supplementary
evidence in Form C of the schedule, before the constitution of committee of creditors.

Regulation 10 gives arbitrary power to the IRP/RP because it says that he can call for
evidence or explanations as he may deem fit. In such circumstances, there is a high
chance of collusion ultimately leading to a case of over-inclusion of a financial creditor,

41
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if not under-inclusion. Over-inclusion of someone or even inclusion of someone as a

financial creditor means dilution of voting share in the Committee of Creditors.

The Bankruptcy Law Reforms Committee (BLRC) did mention the rights of other
creditors as regards with the other creditor’s claim 87. However no provision affirming
the same can be found in the Insolvency and Bankruptcy Code. It is hence clear that
there is no ambiguity regarding the legislative intent, but rather such a legal position
has explicitly been rejected by the legislators and the position regarding this is already
settled88. This liability is transferred to the RP and NCLT has no jurisdiction over inter-
creditor dispute regarding amount of claim.

Thus arbitrary and unquestionable powers are granted upon the Resolution
Professional. A creditor can, without giving substantial proof, get into the committee of
creditors just by the discretion of the RP. There is no provision as to what will happen if
such creditor fails to submit proof even by the end of the resolution process. Will the
constitution of the committee be considered void ab initio? Will all the actions taken by
the committee till then be reversed? If yes, who will bear the cost of the time gone and
loss incurred? The questions are yet to be answered. There will be gross injustice if
other creditors are deprived of their share in the committee without any reason. A
similar situation actually arose in the Synergies Dooray case 89:

CASE ANALYSIS- EDELWEISS ASSET RECONSTRUCTION COMPANY LTD. V.

SYNERGIES DOORAY LTD & ORS

Synergies Dooray was the corporate debtor and one of its alleged related party
Synergies Casting was owed a huge amount of financial debt (over 600 crores). But the
company was aware that it won’t have any representation and voting rights in the
Committee of Creditors as it was a related party. So before the initiation of the

87
The Report Of The Bankruptcy Law Reforms Committee Volume I: Rationale And Design 117.
88
Innoventive Industries Ltd V. Icici Bank, (2017) Scc Nclat 70.
89
Edelweiss Asset Reconstruction Company Ltd. V. Synergies Dooray Ltd & Ors, 2017 Scc Online Nclt
1624.

42
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proceedings, it sold off its debt to another financial creditor Millennium Finance ltd for
a meagre amount of 30 crores. Since Millennium Finance was not a related party to the
corporate debtor it would get its voting rights pertaining to 600 crores, which
constituted nearly 80% of the debt. Since 75% is the threshold for the decisions of the
Committee of Creditors, millennium Finance virtually became the committee itself. It,
practically had all the powers and could do anything it wanted at its perusal without
considering other stakeholders. The Committee approved a resolution plan with a 94%
haircut to all, which was later approved by the NCLT (it was first plan to be approved
under the code). The plan was that Synergies Casting would takeover the business for
Rs 50 crores. Sources say that otherwise the amount that could be realised on
liquidation was just Rs 7 crores 90. Edelweiss challenged the plan in NCLT stating the
situation created by Synergies Casting and that the plan proposed by Edelweiss was not
even put up in front of the Committee. NCLT rejected the application reiterating the
fact that it’s upto the discretion of chairman (RP) on conduct of the Committee
Proceedings and that such transfer of debt was legal.

Analysis: There is unreasonable power given to the RP regarding conduct of the

Corporate Insolvency Resolution Process. In this case, the intentions of the related
parties seem mala-fide prima facie and such a plan should not have been approved
before other plans were discussed. Secondly, this points out a defect in the code that
even though it forbids related parties from voting rights in the committee, it doesn’t
recognise the possibility of the whole debt being transferred to a related party and
gaining control over the committee as the whole insolvency resolution Process is a
game of getting the highest voting share in the committee. They secured more votes
before the constitution of the committee and then all decision of the committee were at
their whims, including the appointment of the insolvency resolution professional.

Mergers
90
India(Https://Mnacritique.Mergersindia.Com/News/Nclt-Okays-First-Insolvency-
Resolution-Scheme-Under-Ibc/) Last Accessed 14th November 2017.

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2. WHETHER BONA FIDE TRANSACTIONS ENTERED INTO BY THE

CORPORATE DEBTOR WITH DIRECTORS OR RELATED PARTIES ARE
AVOIDABLE (IF UNDERVALUED)?

Section 45 of the code talks about the avoidance of undervalued transactions that a
Resolution Professional (RP) on examination of the transaction of the corporate debtor
determines that the transactions were made during the relevant period under section
46, which are undervalued transactions, shall make an application to the Adjudicating
authority to declare such transaction as void and avoidable and reverse the effect of
such transaction. On a whole, this section gives an outlook on the duty of the RP to
make application to the adjudicating authority to declare void or avoidable and reverse
the effect of all such transactions which are valued less than the market value, i.e,
undervalued transactions. Where the corporate debtor enters into a transaction
involving transfer of one or more asset by him for a consideration whose value is less
than the value of consideration provided by the corporate debtor is an undervalued
transaction. Therefore, this section basically aims to prevent the tapping away of
corporate assets, in other words, drawing off or draining away of corporate assets by
the corporate debtor’s management which has knowledge regarding the financial
weakness of the corporate debtor and may enter into such transaction in vicinity of
insolvency.

Next, section 46 gives the relevant time period during which a transaction must be
entered into for it to be challenged as undervalued and thus the management of the
corporate debtor which is well aware regarding the corporate debtor’s financial affairs

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may enter into transactions with related parties to strip the corporate debtor of the
value upon receiving early expectations of financial trouble.

For example, due to adverse cash flow, a company sells its property worth Rs.5 crores,
by passing a special resolution, to one of its Managing Directors and the director paid a
certain sum of say Rs.50 lakhs upfront. Now due to the default of the company in
business transactions, an insolvency procedure was initiated and an Interim Resolution
Professional (IRP) is appointed who makes an application to the adjudicating authority
to reverse the effect of the transaction entered into by the company with the managing
director regarding the sale of the property and avoid the same because the same was
made in the relevant time as per section 46 of the code on the basis that the said
transaction was an undervalued one as per section 45, sub clause 2(b) of the code.

The act of the IRP in the above illustration can be considered as highly debatable
because firstly, the said transaction was undervalued or not is a question. According to
section 45 sub clause 2(b) of the Insolvency and Bankruptcy code 2016, a transaction is
said to be an undervalued one when the corporate debtor enters into a transaction with
a person (which includes related parties or directors of the company) involving the
transfer of one or more assets by the corporate debtor for a consideration the value of
which is significantly less than the value of the consideration provided by the corporate
debtor, and such transaction has not taken place in the ordinary course of business of
the corporate debtor.

Therefore, the argument that bona fide transactions entered into by the corporate debtor
with related parties or director are avoidable if undervalued is highly questionable.
However if the transaction is mala fide or does not fit in sub clause 2 of section 43 of the

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code that if there is a transfer of property and there lies any interest thereof of the
corporate debtor for the benefit of the creditor/surety/guarantor or on account of any
antecedent financial or operational debt or any other liabilities owed by the corporate
debtor and the said transfer made has the effect of putting such
creditor/surety/guarantor in a beneficial position than it would have been in the event
of a distribution of assets in accordance with section 53, then the transaction can be
avoidable. But the question arises regarding a bona fide transaction being avoidable or
not. If yes, then further question arises why is it avoidable considering the transaction is
bona fide in nature and if no, then how to go about sub clause 2(b) of section 45?

3. WHO IS ENTITLED TO RECEIVE THE INFORMATION MEMORANDUM?

Section 29 of the code talks about the preparation of the Information Memorandum (IM)
which has the material information regarding corporate debtor’s assets, liabilities and
financial position and in furtherance of section 29, this IM is provided to everybody
who is a potential bidder in the resolution plan and these potential market participants
can be other financial institutions, assets reconstruction companies, foreign financiers,
strategic investors, other firms and minority shareholders in the entity. 91 Also, once the
IM is created, the RP must ensure that the same is readily available to whoever is
interested to bid a solution for the IRP and also should inform the market about the
transparent mechanism through which third parties can access the IM.

Regulation 3692 sub clause 4 says that the IRP/RP shall share the IM after receiving an
undertaking from the member of the committee or the potential resolution applicant
considering that such applicant shall maintain confidentiality of the said information
and shall not use the information as a means for undue gain or undue loss to itself or
any other person and shall comply with the requirements under section 29(2).

91
The Report Of The Bankruptcy Law Reforms Committee Volume I: Rationale And Design
92
Ibbi(Insolvency Process For Corporate Persons) Regulations, 2016

46
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Now the question arises here regarding the role of the RP, whether it is arbitrary in
nature or not in providing the IM to the potential interested third parties including
other firms which may include competitors because the code does not specify the
details in manner or the mechanism in which it should be carried out, rather it
emphasises that the same must be done in a time bound manner and that it is accessible
to all the possible interested parties.

4. WHETHER RP HAS A DUTY OF RUNNING THE FIRM AS A GOING

CONCERN U/S 25(1)

It is clear that Interim Resolution Professional has a duty 93 but whether such duty exists
for RP is not clear. The Code imposes a statutory duty on the RP to protect and preserve
the assets of the corporate debtor 94. However, the words ‘going concern’ do not appear
at any stage. Since there is a whole section attributed to IRP’s duty to run the firm as a
going concern, it’s reasonable to presume that it is an intentional omission and the RP
has the power to run the business otherwise, i.e. not as a going concern. Not renewing
leases and rent agreements could lead to substantial loss to long term prospects of the
corporate debtor who has been dragged to such proceedings just for an amount of 1 Lac
Rupees.

RECOMMENDATIONS

1. If the debt owed by the debtor is transferred or sold to anyone by the financial
creditor, then the voting share should be correspondent to the selling price and not the
original debt.

2. NCLT should have the jurisdiction to listen to pleas of inter-creditor dispute of over
inclusion.

93
The Insolvency And Bankruptcy Code 2016, S 20.
94
The Insolvency And Bankruptcy Code 2016, S 25.

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3. The Code should enlist the rights of the creditors in the process and operational
creditors should be given some form of representation.

4. The role of RP should be clearer with regards to duties.

5. It should be decided that who all would have access to the Information
Memorandum.

6. One person appointed by the BOD of corporate debtor should be allowed to

supervise the work done by the RP.

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ONE NATION, ONE ELECTION: WEIGHING THE PROS AND CONS

Ojaswa Pathak & Prasad Hegde

*

I NTRODUCTION

In order to set the background and context it is necessary to explain the meaning of a
simultaneous election. In a literal sense this would mean conducting the elections of all
the three tiers of the government simultaneously but since the third tier is a State subject
it would be both violative and impractical to take them in the same ambit considering
their significant numbers. The meaning of simultaneous elections, according to what
government policy think-tank NITI Aayog calls for is when a voter casts vote for Lok
Sabha and State Assembly in a single day. 95

The practice of simultaneous elections is common to many other electoral systems

around the globe. In fact, it might be interesting to note that we all started with
simultaneous elections back in 1951 till 1967 when the cycle got disrupted due to
untimely dissolution of the state assemblies. After a few other premature dissolutions
and extensions, the cycle got firmly disrupted.

Perusing the relevant constitutional provisions for this issue leads to the observation
that it would necessary to explain the terms of the Parliament and State Assemblies
prescribed in the Constitution. The Constitution provides for a term of five years for

Students, Gujarat National Law University

**

Bibekdebroy And Kishore Desai, Analysis Of Simultaneous Elections: The “What”. “Why” And “How”,
95

Niti Aayog Discussion Paper 1, 4 (2016),

Http://Niti.Gov.In/Writereaddata/Files/Document_Publication/Note%20on%20simultaneous
%20elections.Pdf.

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both Parliament96and State Assembly97 unless dissolved earlier and an extension is only
permitted in case of an emergency. The President has the power to dissolve the
Parliament and State Assemblies but premature dissolution by the President for the
States has been severely regulated after the Supreme Court judgement of S.R.Bommai v.
Union of India98.

The apex court in this case had mandated that the presidential order for dissolution of a
State Assembly must be confirmed by both the houses of the Parliament and is subject
to judicial review. It is clear from reading various provisions that the executive derives
its legitimacy from the legislature both in State and Union level and thus the fall of an
elected government is implied though cannot be predicted which aggravates the
problem of continuing the process of combined elections.

T HE N EED TO C ONDUCT S IMULTANEOUS E LECTIONS

This brings us to the various reasons why we need simultaneous elections. Various
stakeholders have opined different reasons and most of these reasons can revolve
around a few main points of contention which are more or less a reiteration of what was
stated by a Parliamentary Report on the same issue.99

Firstly, as mentioned earlier conducting elections comes with a huge cost. Holding all
the elections simultaneously can reduce this cost to a substantial degree thereby saving

96
Art. 83, CONSTITUTION OF INDIA, 1950.
97
Art. 172, CONSTITUTION OF INDIA, 1950.
98
S.R. Bommai V. Union Of India, Air 1994 SC 1918
99
Parliament Of India (Rajya Sabha Department Related Parliamentary Standing Committee On
Personnel, Public Grievances, Law And Justice, Feasibility Of Holding Simultaneous Election To The Lok
Sabha And State Legislative Assembly, Report No. 79 1, 3 (2015),
Http://164.100.47.5/Newcommittee/Reports/Englishcommittees/Committee%20on%20personnel,
%20publicgrievances,%20law%20and%20justice/79.Pdf.

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a chunk of the exchequer which can be utilized for other developmental projects both at
the State and Union level. It is worthy to mention that though Election Commission has
estimated the cost of simultaneous election at about ₹4500 crores which is more than
what the 2014 General Elections had costed 100but this estimate cost of simultaneous
elections includes the humongous expenses that would have been spent on State
elections and thus leading to the observation that approximately ₹ 1000 crores might be
saved through this process. By adopting this we would not only save our money but it
would also save a large amount of money of the political parties and various other
stakeholders. Due to huge expenses in elections the political parties are desperate about
the inflow of funds and frequent elections add to this cycle which can be consequently
said to drive corruption and black money.

The second compelling reason can be attributed to the policy paralysis experienced due
to the imposition of the Model Code of Conduct by the EC in states where elections are
to be conducted. Model Code of Conduct 101 is a set of norms imposed by the EC during
a period that sets various prohibitions and regulations on candidates and political
parties along with the government. This also prohibits commencement or
announcement of various capital projects and developmental schemes by the
government during the election period which causes great administrative
inconvenience. The object of this provision is to prevent the government for announcing
policy and developmental schemes to lure the electors thereby gaining an unfair
advantage but even bona fide developmental schemes also come under its gamut
thereby resulting in a governance deficit. This was very well acknowledged by the
former CEC who in a symposium organized by a reputed think tank explained the
problem and stated,

”I am not in favour of painting election commission as an obstructionist. Once I got a

call from Cabinet Secretary, when Shri Pranab Mukherjee was the Finance Minister,

Ibid.
100

Election Commission Of India, Model Code Of Conduct For The Guidance Of Political Parties And
101

Candidates 2, 7 (2007),Http://Documents.Gov.In/Central/11949.Pdf.

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saying they want to increase MP land scheme from Rs. 2 crores to 5 crores a year. The
expenditure would be 8,500 crores. I was strolling in my lawn. We had five elections –
Tamil Nadu and others. I said, go ahead. There is no problem except that the matter has
to be kept it in abeyance in these five states. Within half an hour, the Finance Minister
announced this scheme quoting the conversation saying he had spoken to Quraishi and
Quraishi had allowed except in these five states. If Rs. 8,500 crore decision can be taken
in telephone in 30 seconds, to say that ECI stops work, is not true. But it is true that in
the field, things do come to a standstill.“102

There are instances where states have been in MCC for most of the year such as
Maharashtra had a Model Code of Conduct imposition for about half of 2014 when both
its legislative assembly and Lok Sabha went to poll. Needless to say this causes great
administrative inconvenience. This policy paralysis can be greatly reduced if the period
of imposition of Model Code of Conduct is reduced by adopting simultaneous elections.
This would give more time to the governments to perform and serve than to worry
about elections now and then.

Thirdly, a large amount of armed forces is continuously engaged across the nation for
the elections. Conducting elections is a tough and time consuming process and the role
of armed forces in elections is critical to ensure safe and smooth elections without any
interference from any unlawful elements. In the 16thLok Sabha the EC took the help of
about 10 million security personnel which translated to about 11 personnel per polling
station.103 When the country is in a perpetual election mode these forces will be
deployed all the time for this duty which is unwarranted since the main purpose of
these forces is maintenance of internal security. This can be achieved to a certain extent
through simultaneous elections.

102
INDIA FOUNDATION, Http://Www.Indiafoundation.In/Desirability-And-Feasibility-Of-Simultaneous-
Elections/ (Last Visited On Nov. 15, 2017).
103
Election Commission Of India, Strategic Plan 2016-2025, Eci Strategic Plan Book 2016 1, 5 (2016),
Eci.Nic.In/Eci_Main/Library&Publications/Strategic_Plan_Book_16062016.Pdf.

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Other issues which are prompting to switch to simultaneous elections are

publicinconvenience which is caused to the public due to frequent elections since the
rallies organized by the political party during campaign canvassing disrupts the traffic
and causes many other inconveniences. Apart from this one more issue which is
stimulating the necessity for a change is the frequent cycle of caste politics, communism
and corruption that goes along with the perpetual cycle of the elections. This would
greatly be reduced by the simultaneous elections as suggested by a former CEC. 104

Simultaneous elections might as well result in high voter turnout as was observed in
Germany when the German local government elections coincided with the European
Union elections. This resulted in a significant rise in voter turnout from 48 % to 56 %.
Similar trends have been observed when Indian General Elections coincided with
several State Legislature Elections in 2014.105

Frequent elections also have a negative impact on governance and policy making also.
One of the biggest challenges in a democracy is the trade-off between short-term and
long-term decisions. It is always easy to give temporary reliefs and entitlements to the
people such as some entitlement schemes relating to the poor but they might be futile in
combating poverty in long-term and employment generation schemes will be much
useful. Due to the atmosphere of frequent elections, subsidies are offered in place of
quality education and employment generations measures and undermining good
governance.106

F OR AND A GAINST

104
THE QUINT, Https://Www.Thequint.Com/Voices/Opinion/Holding-Ls-Assembly-Polls-Together-Is-
Desirable-But-Not-Feasible (Last Visited On Nov. 15, 2017).
105
Dr. Jayprakash Narayan, Views/Suggestions On Desirability And Feasibility Of Holding Simultaneous
Elections Submission To Government Of India 1, 4 (2016), Http://Www.Fdrindia.Org/Wp-
Content/Uploads/2016/10/Suggestions-On-Feasibility-Of-Holding-Simultaneous-Elections-To-Lok-
Sabha-And-State-Assemblies-15-Oct-2016.Pdf.
106
THE HINDU, Http://Www.Thehindu.Com/Opinion/Op-Ed/Breaking-Out-Of-Election-
Mode/Article15422727.Ece (Last Visited On Nov. 15, 2017).

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This idea of One Nation, One Election has been appraised by many experts and
stakeholders but still has not gone uncontested. Various political parties to the likes of
the INC, TMC and the CPI are sceptic of the feasibility and practicability of this
proposal. Some critics argue that apart from being impractical this idea will also deeply
influence the voter behaviour and may result in national issues clouding state issues.
Renowned jurists have also argued that this will hamper the federalism of the nation
and also change the dimension of the democracy of the nation. 107 The following
paragraphs will evaluate the various criticisms of this idea along with their counter
arguments so that this idea can be evaluated on its merits.

The first objection to this idea is regarding the feasibility and practicability of this idea.
This includes the question of synchronisation of the Lok Sabha and State Legislative
Assembly for the first time and also points out that extension and curtailment of the
tenure of certain assemblies will be imperative to achieve. Curtailment is permitted
through a premature dissolution but extension of an assembly is only permitted in cases
of emergency. Further critics also argue that even if elections are synchronised together
the dissolution of the assemblies cannot be predicted and thus this cycle can be broken
at any time. Another point raised is about the logistics and other operational issues and
resource requirements of conducting such a mammoth exercise. Recognising that these
criticisms are in a good faith in order to promote the best interests of the nation it is
interesting to note that various stakeholders have suggested numerous counters to this.
The nation in 1951 started with simultaneous elections and the cycle only got disturbed
due to premature dissolution of various state assemblies by the President which now
has been severely regulated and reduced due the apex court’s verdict on the same issue.
In order to synchronize all the assemblies, it is recognized that there has to be a one-
time inconvenience of curtailment and extension of some assemblies. This would be
only a one-time practice and will be for the greater good. Coming to the topic of

INDIAN
107
EXPRESS, Http://Indianexpress.Com/Article/Opinion/Columns/India-Lok-Sabha-
Constitution-Elections-Voters-Keep-The-Polls-Apart-5087305/ (Last Visited On Nov. 15, 2017).

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unexpected dissolution it can be noted that a British legislative mechanism can come
handy in this. The Fixed-Terms Parliament Act, 2011 which was passed by the British
Parliament and it received royal assent on 15 September, 2011.The Act seeks to provide
a sense of stability and predictability to British Parliament and its tenure. The Act
provided that the first elections would be held on the 7th May, 2015 and on the first
Thursday of May every fifth year thereafter. The fixation of date of elections means that
the Parliament cannot extend beyond five years and that the normal cycle is restored to
five years. The Act108 provides for early elections when either of the following
conditions is met:

If a motion for an early general election is agreed either by at least two-thirds of the
whole House (including vacant seats) or without division; or If a motion of no
confidence is passed and no alternative government is confirmed by the Commons
within fourteen days by means of a confidence motion.

Another measure which can be instrumental in providing stability is the notion of

constructive no-confidence motion as practiced in Germany. This means that a no-
confidence motion should include in itself a confidence in an alternative leadership.
This concept is enshrined in the German Constitution 109 and should also be
implemented in the Indian polity as suggested by the Law Commission. 110 The Law
Commission went on to suggest that a no-confidence motion should only be allowed
after a gap of two years and a no confidence motion should itself contain a confidence
motion in favour of a named individual. This suggestion would be instrumental in
strengthening the stability of the elected government in order to avoid frequent
elections. Then also if dissolution of the government becomes unavoidable then a
different measure can be taken. This measure involves the President appointing his

108
§2, FIXED TERMS PARLIAMENT ACT, 2011.
109
Art. 67, BASIC LAW FOR FEDERAL REPUBLIC OF GERMANY, 1949.
110
The Law Commission Of India, 170 th Report On Reform Of Electoral Laws (1999),
Http://Www.Lawcommissionofindia.Nic.In/Lc170.Htm.

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Council of Minister and administering the government till the tenure of the Lok Sabha
completes. Same can be applied to State legislative assemblies. This provision can only
be applied in rarest of the rare cases since if the other two mechanisms are enforced it
would be really difficult for any individual to organize a political coup. This was
suggested by the Election Commission among many other suggestions in order to
enforce simultaneous elections. The Election Commission had agreed to the idea in
principle but had expressed concerns over its logistical feasibility. The chief issue
highlighted by them is that simultaneous conduct of elections would require large scale
purchase of Electronic Voting Machines and Voter Verifiable Paper Audit Trail
(VVPAT) machines. For conducting simultaneous elections, the Commission expects
that a total of rupees 9284.15 crores will be required for procurement of EVMs and
VVPATs. The machines would also be need to be replaced every one and a half decades
which would incur further expenditure. Further, storing these machines would increase
the warehousing cost.

The other objection against simultaneous elections is that it would negatively impact
voter behaviour and is a politically motivated move. This is based on the presumption
that if elections are organized simultaneously the state issues will be clouded by the
national issues or otherwise. This will result in a favourable balance being titled
towards larger parties that are the national parties. In a recent study published by IDFC
institute111 it was concludedthat - “on average, there is a 77 per cent chance that the
Indian voter will vote for the same party for both the State and Centre when elections
are held simultaneously”. Meaning, in about 77% of the total Assembly constituencies,
the winners came from the same party as that of the Parliamentary constituency. This
analysed electoral data for four rounds of Lok Sabha elections – 1999, 2004, 2009 and
2014. They chose States whose elections coincided with the above elections and noted
that “trend of choosing the same party has gone from 68 per cent in 1999 to 77 per cent

THE QUINT, Https://Www.Thequint.Com/Voices/Opinion/Holding-Ls-Assembly-Polls-Together-Is-

111

Desirable-But-Not-Feasible (Last Visited On Nov. 15, 2017).

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in 2004 to 76 per cent in 2009 and 86 per cent in 2014” implying that “the ability or
willingness of the voter to vote differently is only decreasing with time”.

This concludes that the ability of the people to differentiate between State and Union is
only decreasing with time thereby is a sociological inevitability. Still some of the
stakeholders argue that this process will hamper the federal structure of the nation and
will reverse the process of deepening the democracy but they ignore the fact that the
nation always started with simultaneous elections in 1951 and simultaneous elections
for a decade and a half did not make the country less federal. India is an extremely
diversified yet united nation and cannot be hampered through this. Apart from that
elections have numerous dimensions including anti-incumbency/incumbency,
individual leadership factor, public perception, communal composition of the electors,
etc. Thus simultaneous elections solely cannot be attributed to this. For example, in
2014, the state of Odisha voted for re-election of its incumbent State Government (led by
BijuJanta Dal (BJD) – a state party). The BJD also won the largest number of Lok Sabha
seats from the state – 20 out of 21 seats. Similarly, Sikkim also voted for re-election of its
incumbent State Government (led by Sikkim Democratic Front (SDF) – a state party)
which also won the Sikkim Lok Sabha seat. In these cases, it can be strongly contended
that the primal reasons that led to such results were organizational strength of winning
parties in Odisha and Sikkim, lack of strong visible alternatives for the electorates,
perceptions of key leaders and contestants etc. and not merely the simultaneous timing
of elections. This example also weakens the objection that the federal structure will be
weakened by this proposition.

Another argument can be stated that due to resignation or incapacitation of elected

representatives and the consequent bye elections would defeat the very purpose of a

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synchronisation. The burden of bye elections cannot be ignored since each bye election
to a seat in the Lok Sabha costs about a crore to the exchequer. Apart from that
sometimes when several seats of the assembly are headed for bye election this prompts
the leadership to take populist measures in order to woo the people since the reputation
of the government is on stake due to the increased attention of the media and other
people which also put a dent in steady and effective governance. In order to counter
this there are many suggestions available to the policymakers one of them is to suitably
amend the constitution so as to fill these vacancies through other means such as
Governor filling the seat by appointing a person from a list of few nominees given by
the same party as practiced in Germany and United States. Another suggestion by the
Election Commission to provide for bye-elections is to organisetwo windows of one-
and-a-half months each may be fixed for holding all bye-elections that become due in a
particular year.112

Dr. Narayan of Foundation for Democratic Reforms was sceptic of the benefits arising
out of these possible amendments and opined that the continuity of this cycle cannot be
guaranteed in a diverse nation like India and hence suggested that a clear separation of
Executive and Legislature is the only panacea but he cautioned that this separation will
be useful only in its application to the State Level since that is key to the welfare of the
citizens and is one of the most fundamental indicator of the people’s satisfaction.
Taking the idea, a bit further and off track he suggests that there has been utter misuse
of the Westminster model since this society worships power and the legislators are
aware that the legs of the Chief Minister’s chair are made of the legislators. This fuels
corruption and arbitrary decision making in order to please the legislators. Discussing

Parliament Of India (Rajya Sabha Department Related Parliamentary Standing Committee On

112

Personnel, Public Grievances, Law And Justice, Feasibility Of Holding Simultaneous Election To The Lok
Sabha And State Legislative Assembly, Report No. 79 1, 3 (2015),
Http://164.100.47.5/Newcommittee/Reports/Englishcommittees/Committee%20on%20personnel,
%20publicgrievances,%20law%20and%20justice/79.Pdf.

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other suggestions given by them will take us off the topic thus it is apt to say that FDR
wants to achieve the same purpose but through a different means.

In the light of the criticism and counter-arguments presented it is noteworthy that there
is still no strong and substantial objection to the idea of One Nation, One Election so as
to not adopt it.

I MPLEMENTATION A ND O THER O PERATIONAL R ECOMMENDATIONS

Conducting the elections of all the twenty-nine states together with the Lok Sabha is a
mammoth task and numerous stakeholders including the Election Commission has
expressed its reservation over its feasibility and practicality considering ground
realities. The Union Government’s think tank NITI, in a study has suggested at length
about the operational considerations involved. The gist of these findings is that the
elections should be held at two phases since it recognizes that it will be too cumbersome
to conduct all the state elections at the same time. The first phase will be along with the
2019 Lok Sabha Elections while the other will be during the mid-term in 2021. This
covers most of the objections raised on the practicality aspect.

This system of division of phases will also reduce the curtailment/ extension time for
various legislative assemblies. Only the assemblies of Gujarat, Himachal Pradesh, Bihar
and Nagaland inter alia will have the extension period of more than 12 months but this
will be only a short term and one-time inconvenience. The two phase formulas will
even be helpful in case of a premature dissolution of an assembly despite all efforts.
NITI has even considered the logistical aspect and has suggested that the operation is
feasible enough for large amount of expenditure which would be saved through

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simultaneous elections and now it is for the other key stakeholders to consider the
practicability and benefits of this proposition.

CONCLUSION

An effective and cautious adoption and implementation of the reform of Simultaneous

Elections should be a priority for the government among many other electoral reforms.
NITI has done a commendable job analysing the benefits of this proposition while the
only task left is ascertaining the cost which can be saved through simultaneous elections
since this would help the government to convince all the stakeholders and other
political parties and to bring everyone aboard. One Nation, One Election is a systemic
reform and the Union Government has its expressed support for this idea. What
remains is to build a consensus among most of the political parties in order to avoid any
kind of administrative or legislative logjam in its implementation. The nation has
suffered huge unnecessary expensesdue to the frequent elections and the time is correct
to recognize this issue and correct it. Needless to say that various other problems apart
from administrative inconvenience and expenditure can be curbed through this reform
and will have a substantial effect on the policy making apart from strengthening the
position of the government in the Parliament so that the executives are not forced to
cow down on the whims and fancies of a few group of MPs.The government and other
stakeholders should deliberate and form a consensus on this issue giving it a high
priority because the nation needs this reform but we as a democracy must take the
views of every stakeholder into consideration and must not forget our democratic and
constitutional ideals in executing this project.

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YES MEANS YES STANDARD- AN INNOVATIVE APPROACH TO

ENSURE JUSTICE FOR WOMEN

Mahim Dubey
*

INTRODUCTION

X is a famous film star and an author of several feminist blogs and newspaper articles
and P is a struggling actor. Both of them met at a party and had a descent conversation
about modern film industry. After the party, X asked P for dinner. P accepted his offer.
After dinner they went to the place of X. When they reached home, X asked P to sit on
the couch. After a few minutes he also sat near P and kissed her. P felt a little awkward
as all this appeared to be very fast to her. But she did not say anything. Then after a few
seconds X started undressing and he slid his hands under P’s clothes. She was not very
enthusiastic about the whole thing, but X could not observe it. She was also not able to
strongly show her dis-consent. X then had sexual intercourse with her. After some time
P gathered courage to tell X to stop. X stopped on listening to her “no” and then
arranged for her to go back to home. P felt really bad after the incident and she texted X
that she was not comfortable.

When one reads this illustration, he or she might get a hunch that a wrong was
committed by X. One knows that the right thing was not done, but the act of X can’t be
easily claimed as an illegal act. It is because X assumed from the circumstances that
consent was there and he even stopped when the girl said no. Like the girl P in the
illustration above, many a time women are not able to clearly refuse to consent for sex
and after sex they experience severe mental agony.

The reason for writing this illustration was to describe a certain kind of sexual
intercourse which is not ethically appropriate but might be legal, if narrow definition of
consent (no means no) is the law. Before discussing which kind of definition of consent
**
Student, National Law University, Delhi.

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the law should adapt, it is important to discuss the meaning of consent and two major
ways of defining consent.

In order to determine whether a sexual act is valid or not, definition of consent should
be read. There are two major ways of defining consent. One is the, “No means No’’
approach. According to this approach sexual activity is not illegal if the woman does
not clearly express her discontent. Women can show her discontent by saying no or by
using signals to communicate, dis-consent. 113The other approach is known as the, “Yes
Means Yes” (affirmative consent). According to this approach, before indulging into sex
man has to obtain affirmative consent of his partner. 114 He should proceed only and
only if the partner says yes.

X is not guilty of crime if the, “No means No” approach is followed. It is because he
failed to seek active consent but he did not continue when then woman said no. Thus he
did not breach the rule.

The important question which arise from the reading of illustration and will be
answered in the research, are the following –

Q1. Whether no strong expression of discomfort from P should be understood as her

consent?

Q2. Whether it should be the legal duty of X to ask for consent by P and proceed to have
sex only after affirmative consent?

“YES MEANS YES” – A BETTER APPROACH

113
Nicholas J. Little, From No Means No To Only Yes Means Yes: The Rational Results Of An Affirmative
Consent Standard In Rape Law, 58 Vand. L. Rev. 1323 (2005).
114
Id, At 1323.

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PHILOSOPHY BEHIND “YES MEANS YES”

There are many cases of sexual encounters like the one explained in the illustration in
introduction, in which women face oppression and they are not able to clearly say no.
“Yes Means Yes” approach tries to provide solution to such problems. The main
advantage of the approach is that, it leaves no space for assumptions during sexual
intercourse.115

Scope for assumption can be dangerous. It is because women may try to signal
discomfort but men might not be able to understand it. This can happen because of
patriarchal notions prevalent in the society. Later on men can take the defense that they
assumed consent was there. The stereotypes and patriarchal norms can even affect the
process of adjudication. Affirmative consent helps in avoiding all these problems which
can rise because of lack of communication before sex.

The philosophy behind the approach of affirmative consent is that women should not
be burdened with the duty of consistently and actively saying no, such that men are
able to understand it.116Silence of women should not be seen as her consent.

In 1990 students in Antioch College, Ohio prepared first draft law for affirmative
consent. In that draft they mentioned that consent should be taken at each step of sexual
activity. This idea was mocked initially but Antioch College still tried to inculcate a
culture in the campus in which positive consent is seen with respect. Later on people
realized the importance of this idea and developed countries started giving consent

115
Will 'Yes Means Yes' Laws Change The Rules Of Sex?Http://Www.Bbc.Com/News/Blogs-
Echochambers-29546959<Last Seen – 24th March,2018>.
116
"Yes Means Yes" Is About Much More Than Rape,
Https://Www.Vox.Com/2014/10/10/6952227/Rape-Culture-Is-A-Tax-On-Women-Ca-Yes-Means-Yes-
Dierks-Katz<Last Seen - 27th March, 2018>.

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education to their youths.117In 2014, California became first state where all the state
funded colleges are required by law to accept policy of affirmative consent. After it
New York, Illinois and Connecticut also adapted this approach. Other states are also
pondering on introduction of such law.118

CRITIQUE OF “YES MEANS YES”(AFFIRMATIVE CONSENT) APPROACH

MAIN ARGUMENTS AGAINST “YES MEANS YES” ARE THE FOLLOWING –

(i) “Yes Means Yes” spoils the fun of sex and most of the men and women would not
prefer it. The approach of “No Means No” is according to the cultural norms of
society.119

(ii) “Yes Means Yes” does not solve all the problems. It is argued that women might say
‘yes’ under pressure. Sometimes they might say yes but actually they would not want to
have indulged in sex. Thus a simple yes can’t be enough.120

(iii) “Yes Means Yes” approach gives wider power to state to convict persons and state
can use this power to selectively punish people from disadvantaged background. 121

COUNTERING THE ARGUMENTS GIVEN AGAINST AFFIRMATIVE CONSENT

(i) Affirmative Consent Is Not a Mood-Killer

The idea that consent kills the mood comes from patriarchal culture prevalent in our
society.

117
Thank You For Asking, Https://Www.Nytimes.Com/2018/02/24/Style/Antioch-College-Sexual-
Offense-Prevention-Policy.Html<Last Seen - 18th April, 2018>.
118
The Aziz Ansari Allegation Has People Talking About 'Affirmative Consent.' What's That?
Http://Time.Com/5104010/Aziz-Ansari-Affirmative-Consent/<Last Seen – 23rd March, 2018>.
119
Margo Kaplan, Rape Beyond Crime, 66 Duke L.J. 1045, 1112 (2017)
120
Dan Subotnik, Hands Off: Sex, Feminism, Affirmative Consent, And The Law Of Foreplay, 16 S. Cal.
Rev. L. & Soc. Just. 249, 318 (2007)
121
Aya Gruber, Not Affirmative Consent, 47 The U. Of Pac. L. Rev. 683, 708 (2016).

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Such views need to be questioned. Education about affirmative consent can change the
negative perception about it. Discussions, theater plays and class lectures can be
organized on this topic. Antioch University did the same when it brought affirmative
consent rule in as early as 1990 and it was successful to a large extent. 122Several feminist
scholars argue that affirmative consent can be obtained in a manner which does not
destroy the mood. Affirmative consent can lead to better sex.123

It can also be said that even if affirmative consent destroys pleasure for some, it should
not be avoided. Affirmative consent standard should not be avoided just because it
might kill pleasure for some couples. The suffering which women get after an
oppressive sexual is greater than the loss of pleasure for some. JS Mill’s conception of
justice can be used to argue for this stance. Mill says that maximization of utility should
be in the long run and not on case to case basis and respecting individual freedom and
development of character of person, will lead to maximization of utility in long run 124.
The act of taking affirmative consent from shows respect for their individual freedom.
Also, this standard makes men think about the feelings of their partner and not just
focus on their own interests. Thus this standard can help in maximization of utility in
longer run.

(ii) Affirmative Consent is Not Panacea; But It’s a Step towards Justice

It is argued that even Yes can’t be solution to all problems. But it will not be logically
correct to remove standard of affirmative consent only for this reason. Affirmative
consent requirement helps in building the confidence of women.125

COMPARING CASE OF AFFIRMATIVE STANDARD WITH THAT OF

PROTECTION FROM COMPELLED TESTIMONY

122
Thank You For Asking, Https://Www.Nytimes.Com/2018/02/24/Style/Antioch-College-Sexual-
Offense-Prevention-Policy.Html<Last Seen- March 28th, 2018>.
123
Allison E. Hatch, Campus Sexual Assault: A Reference Handbook97 (2017).
124
Michael J. Sandel, Justice: What's The Right Thing To Do?38 (2010).
125
Nicholas J. Little, From No Means No To Only Yes Means Yes: The Rational Results Of An Affirmative
Consent Standard In Rape Law, 58 Vand. L. Rev. 1321, 1364 (2005).

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In the case of NandiniSatpathy v P.L. Dani126, the Court held that the phrase compelled
testimony should not only be seen as testimony obtained out of physical force or
assault. Even mental torture, long and tiring process of investigation and atmospheric
pressure play a role in compelling accused to give witness. Thus statement made before
police incriminating accused should not be taken as evidence against him.

The concept that can be understood from this decision is that only physical violence or
assault is not necessary to compel a person. Sometimes the relations between the
persons can be such that an element of compulsion may come into existence. US
Supreme Court in the case of Miranda v Arizona127 dealt with similar ideological
questions. The Court held that police should inform the accused that he has the right to
have a lawyer and remain silent. The decision was built on the idea that it would
always be difficult to find whether consent was voluntary or not. So instead of relying
only on evaluation of circumstances to find the voluntariness of consent, the Court
should rather look into the fact whether police gave information to the accused or not.
Police should ask him whether he is willing to go through interrogation.

Sherry F. Colb, has argued that Miranda guideline is similar to affirmative consent
standard. Miranda has also been successful. After these guidelines the system incurs a
loss of evidence from accused which earlier could be obtained by pressure or tactics.
But the cost is less than the profit. This guideline empowers accused to give free consent
for investigation. It also makes adjudication simpler. Same reasoning can be applied to
affirmative standard.128After this some might lose an opportunity to have sex or even

126
Nandinisatpathy V P.L. Dani, Air 1978 Sc 1025.
127
Miranda V Arizona, 384 U.S. 436 (1966).
128
What Miranda Can Teach Us About Sexual Consent,
Https://Verdict.Justia.Com/2018/01/31/Miranda-Can-Teach-Us-Sexual-Consent<Last Seen-23rd
March, 2018>.

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the pleasure might be reduced, but women will not have to face a situation in which
they feel that their consent was not obtained.

CONCLUSION

The purpose of the research was to describe the new approach of affirmative consent
and counter the arguments given against it. There are various cases in which women
are not able to say no. The “No Means No” standard does not provide any answer to
such cases. It places the entire burden on women to strongly and consistently say no.
Affirmative consent solves this problem by placing the burden on man to obtain
affirmative consent before sex. This act of asking woman can increase her confidence
and the consent which she gives then, is more clear and effective. Affirmative consent
approach can’t be a solution to all the problems. But it is still a step towards justice.
Even affirmative consent can be appealing. It is not a mood killer and even if it is
considered as one, it should be adapted because this standard will help in maximization
of utility in the long run. Comparison with Miranda guidelines shows that affirmative
standard is not excessive and it can help in women empowerment.

But this approach of yes means yes should not be introduced in India in a single step.
First it should be introduced at the level of universities. Then slowly it should be
brought in the criminal law. Sex without affirmative consent should be kept in a
separate category of crime.

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UTTAR PRADESH CONTROL OF ORGANIZED CRIME BILL, 2017:

FINDING BALANCE?

*
Kriti Parashar

INTRODUCTION

Liberty has been and will always be one of the most contented and protected legal
issues. The most significant question in the subset of the liberty debate is- When can our
liberty be restricted? This debate reaches its zenith when liberty is contended or
protected by the powerful, the rich and the manipulators of law. UPCOCA or Uttar
Pradesh Control of Organised Crime Act, 2017 pending assent of the President is one
such debatable legislation for the foretasted reasons and beyond.

Uttar Pradesh accounted for 9.5% of total IPC crime reported in the country followed by
Madhya Pradesh (8.9%) and Maharashtra (8.8%). It reported the highest number of

**
Assistant Professor, Amity University, Lucknow.

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cases of kidnapping & abduction accounting for 18.1% during 2016. It also reported
maximum number of persons arrested under IPC crimes during 2016. 1 In light of these
figures, it is apparent that law and order situation in the state needs a change. The
question is how should this change be affected?

To make an effort in this direction, the Uttar Pradesh government has approved Uttar
Pradesh Organised Crime Act (UPCOCA) to combat the menace of organised crimes.
A similar law was passed by the Uttar Pradesh government in 2007-08 but had to be
withdrawn after the then President Pratibha Patil refused to give assent for the law.
"Kidnapping for ransom, illegal mining, manufacturing illicit liquor and its sale,
acquiring contracts on the basis of muscle power, organised exploitation of forest
produce, trade in wildlife, fake medicines, grabbing of government and private
properties, and 'Rangdari' (extortion)” 2 are expected to come under the ambit of this
law when finalized.

The Act has been in lime light for several reasons. It is contended that it gives the
police such powers as have not been granted by any law in the state till now.
Confessional Statement to police is given evidentiary value. The period of remand is
increased in comparison to CrPC 3 and bail4 can be denied for upto six months.
Meeting with the accused in jail is made difficult. 5 It is argued that this would increase

1
Crime In India, National Crime Records Bureau (May 15, 2018, 2:15 Pm)
Http://Ncrb.Gov.In/Statpublications/Cii/Cii2016/Pdfs/Newpdfs/Crime%20in%20india%20-
%202016%20complete%20pdf%20291117.Pdf
2
Upcoca Bill Introduced In Uttar Pradesh Assembly, Times Of India, (May 15, 2018, 1:05 Pm)
Https://Timesofindia.Indiatimes.Com/City/Lucknow/Upcoca-Act-To-Combat-Organised-Crime-
Introduced-In-Uttar-Pradesh-Assembly/Articleshow/62179142.Cms
3
Section 28(2) Of The Act Provides That The Judicial Custody Of A Person Arrested Under The Act
Can Be For 60, 180 And 365 Days Respectively. This Has Been Increased From 15, 60, And 90 Days
According To The Nature Of Crime As Provided In Code Of Criminal Procedure (Crpc) In Section 167.
Under Section 28 (3a) Of This Act The Period Has Been Increased To 60 Days As Opposed To 15 Days
Under Common Crimes.
4
Under Section 28 (D) Of The Act, The Accused Cannot Get Anticipatory Bail From Any Court.
5
Under Section 33 (C), Meeting With An Inmate Can Be Arranged Only After Permission From The
District Official Not More Than Twice A Week.

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the scope of misuse. The Act is also opposed on the ground that the existing
legislation in the form of Gangsters Act, Gooda Act, National Security Act and Indian
Penal Code is sufficient to handle the state of affairs in the State.

The critique on the proposed legislation mostly boils down to one question- Are such
restriction and stringencies necessary, constitutional and reasonable in light of the
gravity of the existing criminal situation in Uttar Pradesh? This paper tries to find
answer to this question in light of the Constitutional Provisions, Central Legislations,
and Organized Crime Control Acts in other States and Judicial pronouncements. The
paper also analyses UPCOCA to find the existing loopholes and the scope for reform.

PROVISIONS UNDER THE BILL

UPCOCA restricts the accused liberty in terms of remand, bail and meeting relatives as
aforesaid. It also gives vast powers to the police to handle organized crime. However,
the Act does provide for certain restrictions on this power. The Act has several riders in
order to protect innocents from being framed. Cases under the proposed law would
only be registered i.e. charge sheet can only be filed, after the approval of Zonal
Inspector General of Police, and after ratification by a State Level Appellate Authority
headed by a retired High Court Judge. 6 As in cases of organised crimes it is difficult to
complete investigation easily, in a big relief to investigators, it is proposed to extend
the period of filing charge sheets from 90 days to 180 days. 7

The Act also gives powers to the government to attach properties of the convicts
through judicial process. It also provides for the establishment of Special Courts for

6
Uttar Pradesh Government Passes The Anti-Organized Crime Bill, Daily Pioneer (May 15, 2018, 10:15
Am) Http://Www.Dailypioneer.Com/State-Editions/Lucknow/Up-Government-Passes-Anti-
Organised-Crime-Act---Upcoca.Html
7
Namita Bajpayi, Stricter Law To Tackle Lawlessness In Uttar Pradesh, Indian Express (May 15, 2018,
10:00 Pm) Http://Www.Newindianexpress.Com/Nation/2017/Dec/13/Upcoc-Act-Draft-Of-New-Strict-
Law-To-Tackle-Lawlessness-In-Uttar-Pradesh-Gets-Cabinet-Nod-1726438.Html

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speedy trial. Special courts will be constituted for state level organised crime control.
The State Level Authority will be established to monitor crimes relating to organised
crime. The Committee will be headed by Principal Secretary for Home. The Authority
will take cognizance on its own or on a complaint. There is also a provision to form
District Level Crime Control Authorities led by District Magistrates. The draft also
proposes a Tribunal lead by retired High Court Judge for appealing against it. The
Tribunal will also have a Principal Secretary and a DGP rank Police Officer as a part of
the appellate authority.

In such a set up involving the Police, Judicial Officers and Members of the Executive
Branch it would be difficult for even a strong political party to frame people falsely
under the Act as is apprehended. Since the complaint can be registered with the
approval of Zonal Committee consisting of a retired High Court Judge and with the
approval of Inspector General of Police malicious prosecution would be difficult.

ORGANIZED CRIMES

Dushyant Dave in his article on UPCOCA remarks that ‘The provisions of the existing
laws, especially the IPC, CrPC and the Evidence Act, provide sufficient powers to the
police. The enforcement of the existing laws is the solution.’ 8 To see if this holds well,
we look into the offences punishable under UPCOCA. Disintegrating the definition of
organized crime under UPCOCA, we find the following offences:

1. Kidnapping for ransom,

2. Illegal mining,
3. Manufacturing illicit liquor and its sale,

8
Dushyant Dave, Why Uttar Pradesh Does Not Need A Special Law To Fight Organised Crime,
Hindustan Times (May 15, 2018, 3:05 Pm) Https://Www.Hindustantimes.Com/Opinion/Why-Up-
Does-Not-Need-A-Special-Law-To-Fight-Organised-Crime/Story-0hcnc4ug3hksri7rel5t4l.Html

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4. Acquiring contracts on the basis of muscle power,

5. Organised exploitation of forest produce,
6. Trade in wildlife,
7. Fake medicines,
8. Grabbing of Government and Private properties, and
9. 'Rangdari' (extortion)

Most of the aforementioned offences are already punishable under the existing criminal
system in India. Kidnapping for Ransom is punishable under Section 364A Indian Penal
Code with Death, Life Imprisonment and fine. Illegal Mining is punishable under Mines
and Mineral Development and Regulation Act, 1957 (MMDRA,1957). Other crimes like
manufacturing illicit liquor and its sale is punishable under Section 272 Indian Penal
Code, 1860 and Section 64A United Provinces Excise Act, 1910 (for the State of Uttar
Pradesh). Acquiring contracts on the basis of muscle power, Grabbing of Government
and Private properties, and 'Rangdari' (extortion) is covered under Extortion under
Section 383 of IPC and criminal intimidation under Section 504 of IPC. UPCOCA also
punishes ‘organised’ exploitation of forest produce and trade in wildlife. While trade in
forest produce is punishable under S. 62 Indian Forests Act, 1927, organised
exploitation and trade would be covered under UPCOCA.

Studying the offences covered under UPCOCA, it is apparent that while the substantive
part of these offences remains the same in terms of punishment and charges it the
procedural barriers that are broken by UPCOCA. Most of the special legislations
mentioned above follow the procedure in CrPC or Evidence Act. UPCOCA takes a
detour here in terms of complaint, bail, arrest, etc. How far is such detour necessary can
be known in light of the fact that most of these legislations unperformed today as the
crime rates rise.

Then again such multiplicity of procedure and legislation gives the Police Officers and
the State Government the power to enter into forum shopping, by choosing between the

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procedure mentioned in CrPC or the Special Legislation involved or UPCOCA. An

extortion case for example can very easily be put in the category of ‘Rangdari’ in
UPCOCA or Section 383 of IPC. The Police would thus, have the liberty to choose the
Act under which to book the criminal. Which is the special law in terms of procedure to
follow for illicit mining- MMDRA (Mines and Minerals development and Regulation
Act) or UPCOCA? Should a Gang of criminals be booked under S.120B of IPC or
UPCOCA? Questions like this would crop. Hence, it necessary that the draft Act
incorporates in the definition of ‘organized crime’ itself that - When certain crimes
would shift from falling under the ambit of a common crime to an organised crime?

The United Nations Convention on Transnational Organized Crime views organised

crime to be a large-scale and complex criminal activity carried on by group of persons
for the enrichment of those participating and at the expense of the community and its
members.9 Article 2 of the Convention can be used as a guideline to incorporate such
changes in UPCOCA. Article 2 defines the following as:

(a) “Organized criminal group” shall mean a structured group of three

or more persons, existing for a period of time and acting in concert
with the aim of committing one or more serious crimes or offences
established in accordance with this Convention, in order to obtain,
directly or indirectly, a financial or other material benefit;
(b) “Structured group” shall mean a group that is not randomly formed
for the immediate commission of an offence and that does not need
to have formally defined roles for its members, continuity of its
membership or a developed structure;

Moreover, certain crimes like Drug Abuse and Drug Trafficking, Smuggling, Money
Laundering & Hawala, Terrorism & Narco-Terrorism, Contract Killings and Illegal

9
United Nations Convention On Transnational Organized Crime, Undoc (May 12, 2018, 10:15 Am)
Https://Www.Unodc.Org/Documents/Middleeastandnorthafrica/Organisedcrime/United_Nations_Co
nvention_Against_Transnational_Organized_Crime_And_The_Protocols_Thereto.Pdf

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Immigration (A large number of Indians are working abroad illegally), which could
very easily fit into the definition of an organized crime are not included in the definition
provided in the Act. These crimes are equally, if not more, heinous. ‘Insurgency’ for
example is included in MCOCA unlike in UPCOCA. This also brings us an important
question harmonising the law in terms of organised crime by a national legislation.
However, since crime falls in the concurrent sphere were the State can legislate as per
local conditions, it is likely that the ‘varying’ federal set up in terms of organised crime
would continue.

UPCOCA VS. MCOCA

Uttar Pradesh is not the first in the Country to come up with legislation on Organized
crime control. Maharashtra, Gujarat and Karnataka have similar legislations.
Maharashtra in 1999 was the first state to come up with a law on organized crime
control. The Statement of Objects and Reasons of the MCOCA states that "the existing
legal framework i.e. the penal and procedural laws and the adjudicatory system are
found to be rather inadequate to curb or control the menace of organised crime.
Government has, therefore, decided to enact a special law with stringent and deterrent
provisions including in certain circumstances power to intercept wire, electronic or oral
communication to control the menace of the organised crime."

Section 2(e) of the Maharashtra Control of Organized Crime Act, 1999 defines
‘Organized Crime’ as:

Any continuing unlawful activity by an individual, singly or jointly, either

as a member of an organised crime syndicate or on behalf of such syndicate,
by use of violence or threat of violence or intimidation or coercion, or other
unlawful means, with the objective of gaining pecuniary benefits, or gaining

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undue economic or other advantage for himself or any person or promoting

insurgency.

This definition is different from the definition of organised crime provided under
UPCOCA. UPCOCA defines specific crimes which are covered as organized
crime.

Section 14 authorises the interception of wire, electronic or oral communication

by the investigating authority. The order of the competent authority authorising
interception is subject to review by a Review Committee. Section 16 of MCOCA
makes any Police officer who intercepts communication without authorisation
liable to a punishment with imprisonment for a term which may extend to one
year and with fine upto rupees fifty thousand. Similar provision could be
incorporated in UPCOCA to pacify the opposition and the general public that Act
would not be misused by police officers.

Section of 18 of MCOCA deserves a special mention as it provides for validity to

the order the confession made in presence of a Police officer not below the rank of
the Superintendant of police. However, such a confession has ‘be recorded in a
free atmosphere in the same language in which the person is examined and as
narrated by him.’ Also, it has to be recorded either in writing or on any
mechanical devices like cassettes, tapes or sound tracks from which sounds or
images can be reproduced to be admissible in the trial of such person. MCOCA
safeguards this power to the Police officer by providing that ‘in case of any
complaint of torture, the person shall be directed to be produced for medical
examination before a Medical Officer not lower in rank than of an Assistant Civil
Surgeon.’10

MCOCA also guarantees witness protection under Section 19 and any

contravention to the same is a punishable offence. This is also one area which

10
Section 18(6) Of Mcoca,1999.

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UPCOCA should necessarily incorporate for the State of Uttar Pradesh in which
witnesses are bought through money and muscle power. Again, Section 24 of
MCOCA11 punishes any public officer who intentionally fails to perform his duty
under this Act with a punishment of three years.

The above extensive study of the provisions of MCOCA makes it clear that just like
UPCOCA it gives power to investigate organized crimes but subject to provisions
providing for reasonable restrictions. It is these restrictions only which can protect the
alleged accused from the scope of any misuse. Even so MCOCA did not go
unchallenged before the public and the judiciary.

The constitutional validity of the Maharashtra Control of Organised Crime Act, 1999
was challenged in the case of State of Maharashtra v. Bharat Shanti Lal Shah Ors. 12 on
the ground that the State Legislature did not have the legislative competence to enact
such a law and also that the aforesaid law is unreasonable and is violative of the
provisions of Article 14 of the Constitution of India. The Court held that the law was
constitutionally valid barring Section 21(5). With regard to interception of conversation
the Court held that:

The procedures authorizing such interception are also provided therein with
enough procedural safe guards, some of which are indicated and discussed
hereinbefore. In addition under Section 16 of the MCOCA, provision for
prohibiting and punishing the unauthorized user of information acquired by

11
Whoever Being A Public Servant Renders Any Help Or Support In Any Manner In The Commission Of
Organised Crime As Defined In Clause (E) Of Section 2, Whether Before Or After The Commission Of
Any Offence By A Member Of An Organised Crime Syndicate Or Abstains From Taking Lawful
Measures Under This Act Or Intentionally Avoids To Carry Out The Directions Of Any Court Or Of The
Superior Police Officers In This Respect, Shall Be Punished With Imprisonment Of Either Description For
A Term Which May Extend To Three Years And Also With Fine.
12
(2008) 13 Scc 5

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interception of wire, electronic or oral communication has been made. Thus as the
Act under challenge contains sufficient safeguards and also satisfies the
aforementioned mandate the contention of the respondents that provisions
of Section 13 to 16 are violative of the Article 21 of the Constitution cannot also be
accepted.

The Court also elaborated on the provisions restricting the right of the person to get
bail. Section 21 (5) of MCOCA reads as under: "Notwithstanding anything contained in
the Code, the accused shall not be granted bail if it is noticed by the Court that he was
on bail in an offence under this Act, or under any other Act, on the date of the offence in
question." For this provision the Supreme Court held that the provision suffers from the
vice of unreasonable classification by placing in the same class, offences which may
have nothing in common with those under MCOCA, for the purpose of denying
consideration of bail.

In the case of Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra and Ors. 13,
it was challenged that Section 2(1)(e) of the MCOCA so far as it covers `insurgency' is
repugnant and void by enactment of the Unlawful Activities (Prevention) Amendment
Act, 2004. It was challenged that insurgency and terrorism are two sides of the same
coin and after the 2004 amendment; the UAPA exhaustively deals with the offence of
terrorism. The Court held that the two laws did not overlap with each of other stating
that ‘both the acts operate in different fields and the ambit and scope of each is distinct
from the other.’ It was held that:

Under the MCOCA the emphasis is on crime and pecuniary benefits arising
therefrom. In the wisdom of the legislature these are activities which are
committed with the objective of gaining pecuniary benefits or economic

13
 (2010) 5 Scc 246

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advantages and which over a period of time have extended to promoting

insurgency. The concept of the offence of `terrorist act' under section 15 of the
UAPA essentially postulates a threat or likely threat to unity, integrity, security
and sovereignty of India or striking terror amongst people in India or in foreign
country or to compel the Government of India or the Government of a foreign
country or any other person to do or abstain from doing any act.

This case can be studied in light of the response given to UPCOCA. It is alleged that the
existing legislations are sufficient to deal with the offences that UPCOCA is trying to
cover. However as we will study in the next part of the article, this does not hold true as
existing legislations cover fields very different from organized crime control
legislations.

In 2002 in order to curb the increasing crimes of the organised gangs MCOCA was
extended to the National Capital Territory of Delhi by the Union Home Ministry. Apart
from MCOCA, Karnataka Control of Organised Crime Act, 2000 and Gujarat Control of
Organised Crime Act (GUJCOCA), 2009 exist as State Legislations, but with similar
provisions. The latest amongst these is GUJCOCA, which in June 2009 was returned by
the President with recommendations that provisions regarding confession to police
officer and bail be deleted. However, the next month the Act was re-introduced in the
state legislature without the changes suggested by the President and passed.

GANGSTER, GOONDAS AND BEYOND

In the State of Uttar Pradesh, at State Level Uttar Pradesh Gangsters and Anti-Social
Activities (Prevention) Act, 1986 and Uttar Pradesh Control of Goondas Act, 1970
operate in a similar sphere. Section 2(b) of the U.P. Gangsters Act, 1986 defines a ‘Gang’
as:

(b) "Gang" means a group of persons, who acting either singly or

collectively, by violence, or threat or show of violence, or intimidation, or

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coercion, or otherwise with the object of disturbing public order or of

gaining any undue temporal, pecuniary, material or other advantage for
himself or any other person, indulge in antisocial activities, namely:

(i) offences punishable under Chapter XVI, or Chapter XVII, or Chapter XXII
of the Indian Penal Code (Act No. 45 of 1860), or

(ii) distilling or manufacturing or storing or transporting or importing or

exporting or selling or distributing any liquor, or intoxicating or dangerous
drugs, or other intoxicants or narcotics or cultivating any plant, in
contravention of any of the provisions of the U. P. Excise Act, 1910 (U. P. Act
No. 4 of 1910), or the Narcotic Drugs and Psychotropic Substances Act, 1985
(Act No. 61 of 1985), or any other law for the time being in force, or

(iii) occupying or taking possession of immovable property otherwise than

in accordance with law, or setting-up false claims for title or possession of
immovable property whether in himself or any other person, or

(iv) preventing or attempting to prevent any public servant or any witness

from discharging his lawful duties, or

(v) offences punishable under the Suppression of *[Immoral Traffic in

Women and Girls Act, 1956 (Act No. 104 of 1956)], or

(vi) offences punishable under Section 3 of the Public Gambling Act, 1867
(Act No. 3 of 1867), or

(vii) preventing any person from offering bids in auction lawfully

conducted, or tender, lawfully invited, by or on behalf of any Government

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department, local body or public or private undertaking, for any lease or

rights or supply of goods or work to be done, or

(viii) preventing or disturbing the smooth running by any person of his

lawful business, profession, trade or employment or any other lawful
activity connected therewith, or (ix) offences punishable under Section 171-E
of the Indian Penal Code (Act No. 45 of 1860), or in preventing or
obstructing any public election being lawfully held, by physically
preventing the voter from exercising his electoral rights, or

(x) inciting others to resort to violence to disturb communal harmony, or

(xi) creating panic, alarm or terror in public, or

(xii) terrorising or assaulting employees or owners or occupiers of public or

private undertakings or factories and causing mischief in respect of their
properties, or

(xiii) inducing or attempting to induce any person to go to foreign countries

on false representation that any employment, trade or profession shall be
provided to him in such foreign country, or

(xiv) kidnapping or abducting any person with intent to extort ransom, or

(xv) diverting or otherwise preventing any aircraft or public transport

vehicle from following its scheduled course ;

Gangster is defined under the Act as ‘a member or leader or organiser of a gang and
includes any person who abets or assists in the activities of a gang enumerated in clause
(b), whether before or after the commission of such activities or harbours any person

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who has indulged in such activities’. 14 Many of the activities like illicit drugs,
adulteration of liquor, kidnapping and mischief relating to properties included in the
definition of ‘gang’, overlap with the definition of ‘organized crime’ in UPCOCA.

Gangsters Act is silent on provisions for arrest, remand, framing charges and bail.
UPCOCA covers the sphere as regards that, since Gangsters act only provides for
attachment of property. However, a question remains that in spheres that is common to
both acts (eg. Kidnapping or adulteration of alcohol) which of the special court would
be empowered to take cognizance? Section 12 of Gangsters Act says that the trial under
the Act by Special Court shall have precedence over the trial of any other case against
the accused in any other court (not being a Special Court). By a reading of Section 12 we
can say that it is possible that a person can be prosecuted by two special courts
simultaneously, one under UPCOCA and another under Gangsters Act.

Similarly, a study of Uttar Pradesh Control of Goondas Act, 1970 brings to light several
areas which the Act should necessarily clarify. The definition of ‘Goonda’ under Section
2(b) of the Goonda Act, 1983 includes habitual offenders for certain offences under IPC,
Persons involved in trafficking of Woman and Girls, persons convicted more than thrice
under UP Excise Act, Arms Act, Public Gambling Act, a person dangerous to
community, a house grabber or a tout. The definition of ‘Goonda’ under the Act
overlaps in several aspects with the definition of organized crime in UPCOCA. It
would be better if the two acts are made distinct in operation to avoid multiplicity of
legislation and prevent the authorities from misusing the choice given under the two
provisions. Section 3 of the Goonda Act, 1983 empowers the District Magistrate for
Externment out of the limits of his local jurisdiction. Any contravention of the orders
given by District Magistrate are punishable under Section 10 with ‘rigorous

14
Section 2(C) Of The Goonda Act.

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imprisonment for a term which may extend to three years but shall not be less than six
months, and shall also be liable to fine’.

It is true that under both these State Legislations the imprisonment provided is not
sufficient enough to empower the police to deter criminals on such large scale. They
talk majorly of talk of removal of gangster and attachment of property. The new Act
with its stringent provisions gives it teeth. But it is equally true that three acts operate in
a sphere similar to each other. To avoid any confusion in terms of procedure it is
necessary that the state government should come up with a comprehensive legislation
through UPCOCA which should include within its ambit the area cover by Gangsters
and Goonda Act as well. Such a model has been adopted by Maharashtra where
MCOCA covers all organized crime and no separate Gangster or Goonda legislation
exists. If such a model cannot be adopted, it is still necessary that clear demarcation
must be made between when UPCOCA applies as opposed to Gooda or Gangster,
because most of the Gangsters and Goonde operate through a organised criminal set up
only and are involved in crimes similar to what have been mentioned in UPCOCA.

CONCLUSION

UPCOCA has been called a ‘a black law’ or ‘a draconian law’ by the opposition and
critics for many reasons. Provisions relating to bail and arrest are the ones most strongly
objected to. But the study of the provisions in the legislation highlights that if the power
granted to the police officers, it has been subject to reasonable restrictions, be it in the
form of State and District Level Committees or Zonal Committees. There are however,
certain areas which require regulation to find balance in this legislation controlling
organized crime. Malicious Prosecution or Complaint has to be punished. Most
importantly UPCOCA gives confessional statement to police officer evidentiary value.
A Police Officer using such statement should be made responsible. Section 16 of
MCOCA makes a police officer intercepting communication without authorisation
liable to punishment. Section 18 subjects Police officer using confessional statement to

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submit it as a recording. On similar grounds, UPCOCA should also make the Police
officer intercepting calls or using falsely using confessional evidence liable.

Restrictions and Strictness in the criminal law system is the need of the hour as
indicated by everyday statistics. UPCOCA does achieve the purpose of deterring the
participants in organized crime but without certain restrictions it also creates a fear in
the mind of the innocent to be falsely implicated and denied justice. This apprehension
can be done away with by the state legislature by incorporating a due process when
liberty can be restricted and when it cannot.

INDIA’S SURROGACY POLICY- A FEMINIST AND POVERTY

PERSPECTIVE

Aditi Ramakrishnan & Nipuna Varman

*

INTRODUCTION

The rapid developments in artificial reproductive techniques have opened up avenues

for infertile couples everywhere. Surrogacy is a method of reproduction wherein a
surrogate mother carries the foetus for the intending couple.For the purpose of this
paper, it is important to distinguish between commercial and altruistic surrogacy.
Commercial surrogacy is when the surrogate mother is reimbursed for her services
beyond simply reimbursement for medical expenses incurred. Altruistic surrogacy, on
the other hand, occurs mostly between family members. There is no reimbursement for

**
Students, NALSAR University of Law, Hyderabad.

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the services of the surrogate mother. However, her medical expenses will be taken care
of by the intending couple.15

The Surrogacy (Regulation) Bill, 2016 was introduced by the Minister of Health and
Family Welfare in the Lok Sabha.This bill reflects a flawed policy, and contains a
number of problematic proposals, including a ban on commercial surrogacy, proposals
to only allow heterosexual married couples to avail the option of reproduction through
surrogacy, etc. In this paper, however, the focus will remain on the ban on commercial
surrogacy.

The paper will attempt to uncover the flaws and detrimental effects of the policy of a
ban on commercial surrogacy. It will first analyse the policy in terms of its effects on the
autonomy and agency of the surrogate mother. Next, the paper will look into how the
ban would perpetuate impoverishment and exploitation.

THE FEMINIST PERSPECTIVE

The world over, the female body has historically been a site of immense politics and
powerplay. Reflecting the patriarchy of most of society, the formation of policies, laws
and norms often attempt to control female sexuality. 1 This, in turn, often results in a
denial of a woman’s right to emotional, psychological and sexual spaces. 2

The Surrogacy (Regulation) Bill, 2016, reflects a policy that is no different. Not only does
it violate the fundamental Right to Livelihood, it also paints a picture of women as

15
Tarishi Verma, What Are The Surrogacy Laws In India: Here Is Everything You Need To Know, THE
INDIAN EXPRESS (Mar. 6, 2017, 9:19 Am) Http://Indianexpress.Com/Article/Research/Karan-Johar-
Surrogate-Children-Yash-Roohi-What-Are-The-Surrogacy-In-Laws-In-India-Here-Is-Everything-You-
Need-To-Know-4555077/
1
Louise Anna Helena Ramskold& Marcus Paul Posner, Commercial Surrogacy: How Provisions Of
Monetary Remuneration And Powers Of International Law Can Prevent Exploitation Of Gestational
Surrogates, Vol. 39, No. 6 J. MED. ETHICS 397, 397-403 (2013).
2
Kanchan Mathur, Body As Space, Body As Site: Bodily Integrity And Women's Empowerment In India,
Vol. 43, No. 17, Epw 54, 54-63 (2008).

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helpless victims, incapable of making informed choices. As such, it snatches away any
agency that the woman may have. The aim of the policy, ostensibly to prevent the
exploitation of surrogate mothers, works toward this goal by banning commercial
surrogacy, in which the surrogate is remunerated by the intending couple.

The dichotomy that is the major thread of the debate surrounding commercial
surrogacy is that of autonomy and justice, versus coercion and exploitation. Medical
ethics has four established principles:

 Respect for autonomy

 Justice
 Beneficence, and
 Non-maleficence.3

Arguments against surrogacy focuses on protecting the surrogate’s autonomy and the
balance between the beneficence and non-maleficence. This creates conflict between
these principles, andcreates ethical conundrums for medical practitioners. 4

Feminists themselves are split on the question of commercial surrogacy, and present
two divergent opinions. One view is that surrogacy takes away the human dignity of a
woman by reducing her to nothing more than a human incubator. 5 The other view

3
Beauchamp T & Childress Jf, PRINCIPLES OF BIOMEDICAL ETHICS, (1977).
4
Supra Note 2.
5
Hadfield G, The Dilemma Of Choice: A Feminist Perspective On The Limits Of Freedom Of Contract,
OSGOODE HALL L J, 337-351 (1995).

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focuses on a woman’s ability to make an informed decision. 6The liberal individualists

(who believe in the second view)are of the opinion that it is the individual who decides
the effect of their choices on their personal dignity.7 They use this to oppose the views
of the first stance, on the woman’s loss of dignity.

Opposers of commercial surrogacy often bemoan the reduction of motherhood into a

commodity, and the effect it would have on female dignity. 8The view that surrogacy
reduces human dignity originates in society’s linking of the concept of the ‘sacred’ to
that of motherhood and pregnancy.According women an almost God-like status for
their ability to carry and birth a child simply burdens them with norms of chastity and
piety. These norms serve only to curb female autonomy and subjugate women through
societal norms.

The major argument given in favour of the said bill is that it will prevent the
exploitation caused to the surrogate mothers who often come from a poor background.

6
Supra Note 2.
7
Liesel Van Zyl L & Anton Van Niekerk A, Interpretations, Perspectives And Intentions In Surrogate
Motherhood, Vol. 26, No. 5 J MED ETHICS 404-409 (2000).
8
Banerjee S&Basu S, Rent A Womb: Surrogate Selection, Investment Incentives And Contracting,Vol. 69,
No. 3, J Econ Behav Organ, 260- 273 (2009).

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It is argued that the consent given by them is not always free and is often an act of
desperation.9

However, a counter-argument is easily available. Is the same not true for any person
from a poor background, who chooses to work? The very injustice of capitalist
exploitation comes from the fact that while workers are formally free to contract with
their employers, there is an inequality in bargaining power that comes from the
background of the worker, including their desperate requirement for money. 10This
inequality often means that the formal freedom is not translated into a more substantive
freedom, i.e., workers are often coerced into working with exploitative employers due
to their circumstances.

This exploitation has practically become commonplace, with no proposals for protection
of the worker. Yet, the idea of a similar kind of exploitation but in the specific context of

9
Humbyrd C, Fair Trade International Surrogacy, Vol. 9, No. 3, DEV WORLD BIOETH 11-18 (2009).
10
IRIS YOUNG & DANIELLE S. ALLEN, JUSTICE AND POLITICS OF DIFFERENCE , 39-65 (2011).

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a woman and motherhood has led to the formation of a policy that takes whatever little
choice the woman has out of her hands entirely.

Apart from the above, it is pertinent to note that the unfortunate situation that most of
these poor surrogate mothers find themselves in is a direct result of the failure of the
government to bring about effective policies to alleviate impoverishment. Further,
banning commercial surrogacy would not solve any problems. As explored further in
the next section, a ban would simply cause the business to shift into the black market,
especially since the government offers no rehabilitation or alternate employment to
those affected by the ban.11The women would thus be leftdefencelessto perhaps even
more exploitation. The final result of the policy would be unchanged circumstances, if

11
Supra Note 2.

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not worsening impoverishment. On the other hand, a policy that regulates, rather than
bans, commercial surrogacy could potentially uplift women and reduce the exploitation
they encounter. It would do so by giving surrogates agency to choose their line of
employment, and by affording them legal protection.

The popular imagination that ‘rich couples’ exploit ‘poor women’, thereby contributing
to global injustice is not always correct. To explore the notion of exploitation, it is
helpful to view it as two types. In the first, only one party benefits in a transaction

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wherein both parties perform an act. In the second, both parties enjoy the benefits of
their act, but the magnitude of the benefits conferred on each party differs. 12

In particular to the exploitation in commercial surrogacy, two questions must be

addressed- 1) Whether the distribution of benefit and harm between the two parties is
unjust, and 2) Whether there is valid consent from the party who is at a disadvantage.

12
Supra Note 10.

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If, and only if, the answers to both these questions are in the affirmative can the
agreement be termed exploitative.13

It is therefore not a certainty that surrogates are always exploited in surrogacy

agreements. Providing remuneration to the surrogate mother ensures that the profits
and the risks are allocated equally between the two parties to the surrogacy agreement.

13
Supra Note 2.

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Making surrogacy agreements legally enforceable safeguards the surrogates’ interests

and would aid the element of free, uncoerced consent.

DR Bromham states that the non-payment of reasonably remuneration for undertaking

any form of employment is considered exploitative. 14 Ironically, the reverse seems to be
true in the case of surrogacy. Altruisticsurrogacy, in which the surrogate is not allowed
any remuneration, is the only type of surrogacy made legal by the bill. By doing so, the
policy reinforces structures that perpetuate the exploitation of women.

Women have historically transferred their nurturing and sexual energies to men, but
these transfers have been largely unreciprocated. 15 This is a form of exploitation
particular to women, and legitimizing altruistic surrogacy alone, only bolsters this
exploitation.

The bill, in taking away the surrogate’s autonomy and reinforcing sexual exploitation,
would then have the opposite effect of its intention. Instead of empowering women, it
would only reinforce patriarchal, paternalistic norms, and further entrench the
exploitation that women face. The policy is therefore clearly problematic in its proposal
to curb autonomy.

THE POVERTY PERSPECTIVE

Moving beyond the feminist critique of the policy, the paper will now look at the
implications of this policy on the poor.

It has long been acknowledged that bans are ineffective. Multiple examples through the
years have proved this time and again. The Drug War in the USA proved not only
ineffective, but disastrous.1 Drug use has actually increased, 2 while police brutality on
nonviolent individuals in the course of enforcing the drug prohibition has become
14
Dr Bromham, Surrogacy: Ethical, Legal, And Social Aspects, Vol. 12, J ASSIST REPROD GENET, 509-516
(1995).
15
Supra Note 10.
1
Brian Root, A Return To The Failed ‘War On Drugs’ In The Us?,HUMAN RIGHTS WATCH (Mar. 16, 2017,
2:22 Pm), Https://Www.Hrw.Org/News/2017/03/16/Return-Failed-War-Drugs-Us.

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increasingly normalized.3 Similarly, alcohol prohibition often meant that the trade went
underground,4 causing further problems like spurious liquor and organized crime. 5

In fact, a partial ban on commercial surrogacy in India itself has been proven to not only
be in vain, but to actively endanger the safety of surrogate mothers. In 2012, India
banned surrogacy for gay couples and foreign couples who have been married for less
than two years.6 Clinics continued to sign-on gay couples and foreign ones who do not
meet the criteria despite this. To avoid being hit by the ban, the clinics moved the
surrogates across the border to Nepal.7

However, the 2015 Nepal Earthquake affected this fast-growing trade. Governments of
various countries air-lifted the children of their citizens to safety, leaving the surrogates
stranded behind, their safety uncertain.8

The bans have, if anything, left those on the receiving end in a worse-off condition than
before. Quite apart from the above cited example, there are other corollaries to a ban on
commercial surrogacy. Ostensibly brought about to reduce the exploitation of surrogate

2
Carey Wedler, Drug War Fail: Doctors Now Creating More Heroin Addicts Than Drug Dealers, ANTI
MEDIA (May 26, 2015, 12:18 Pm), Http://Theantimedia.Com/Drug-War-Fail-Doctors-Now-Creating-
More-Heroin-Addicts-Than-Drug-Dealers/.
3
Rep. Hank Johnson, The Failed ‘War On Drugs’ Is Militarizing Law Enforcement, Fueling Police
Violence, THE HUFFINGTON POST, (Oct. 24, 2014, 2:42 Pm), Https://Www.Huffingtonpost.Com/Rep-
Hank-Johnson/The-Failed-War-On-Drugs-I_B_6043558.Html.
4
Biju Dominic, Bans, Do They Work At All?,LIVE MINT, (Jun. 22, 2017, 4:52 Am),
Https://Www.Livemint.Com/Opinion/Xstcbugcsfvnyu4dqucjio/Bans-Do-They-Work-At-All.Html.
5
Id.
6
Soibam Rocky Singh, India Proposes Commercial Surrogacy Ban: A Look At Laws Across The World,
THE HINDUSTAN TIMES (Aug. 26, 2016, 8:32 Am), Https://Www.Hindustantimes.Com/India-
News/India-Proposes-Ban-On-Cemmercial-Surrogacy-A-Look-At-Laws-Across-The-World/Story-
Qgj1isvdxgw0cgbn4kdfsk.Html.
7
Sharmila Rudrappa, India Outlawed Commercial Surrogacy- Clinics Are Finding Loopholes, THE
CONVERSATION (Oct. 24, 2017, 3:20 Am), Https://Theconversation.Com/India-Outlawed-Commercial-
Surrogacy-Clinics-Are-Finding-Loopholes-81784.
8
Tamar Pileggi, After New Nepal Quake, Israel To Evacuate More Surrogate-Born Babies, THE TIMES OF
ISRAEL (May 12, 2015, 8:40 Pm), Http://Www.Timesofisrael.Com/After-New-Nepal-Quake-Israel-To-
Evacuate-More-Surrogate-Born-Babies/.

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mothers (who are mostly members of the poorer sections of society), 9 it may in fact
leave these sections of women defenceless in the face of exploitation.

Under the Indian Contract Act, 10 agreements can exist, even if not legally enforceable. 11
This means that a surrogacy agreement could in principle still exist despite the ban.
However, the surrogate mother would have no legal remedy whatsoever if the other
party decides not to uphold their end of the agreement. Put more concretely, intending
parents may choose not to pay the surrogate after she has delivered the child to them,
or pay less than the agreed amount, and the law will not protect the surrogate in any
manner.

Further, it is conceivable that a number of illegal clinics will mushroom across the
country, with less-than-qualified ‘doctors’ performing procedures on women. This
would open surrogates to disease and increased risk of death, again with no remedy. A
ban therefore would do nothing to reduce the danger that surrogates face through the
process. If anything, it may serve to increase the danger to health and aid exploitation
with no legal recourse.

The ban is a lazy policy decision. It seeks to address the superficial effects of a more
fundamental problem, viz., poverty. The government has acknowledged that surrogates
are largely women from less well-off sections of society. 12 But it seems to have

9
Namita Kohli, Surrogacy Ban: Poor Women Stand To Lose The ‘Better Option’, THE HINDUSTAN TIMES
(Aug. 27, 2016, 7:44 Am), Https://Www.Hindustantimes.Com/India-News/Surrogacy-Ban-Poor-
Women-Stand-To-Lose-The-Better-Option/Story-Fanogtqu6sy1wnyp99tbgl.Html.
10
The Indian Contract Act, 1872 (Act No. 9 Of 1872).
11
Id At S. 2(G).
12
Nishthalamba, Why Ban Commercial Surrogacy?,THE HINDU BUSINESS LINE (Jan. 19, 2016),
Https://Www.Thehindubusinessline.Com/Opinion/Why-Ban-Commercial-
Surrogacy/Article8124254.Ece.

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overlooked that it is this very poverty that pushes women into surrogacy, despite the
risk to health and danger of exploitation.

For many women, commercial surrogacy is a means of earning their livelihood. 13

Especially in comparison to the other options that the unskilled poor have, it pays well
and is therefore an attractive option.14

When the government bans commercial surrogacy, it would take away the legitimate
means of livelihood of a large number of women (and their households) who depend
on the money that comes from surrogacy. The government would therefore in effect
violate the fundamental Right to Life of a large number of families under Art. 21 of the
Constitution,15 of which Right to Livelihood forms a part.16

It is pertinent to refer the Maharashtra Bar Dancers case 17 at this point for its parallels.
In 2005, the Maharashtra government imposed a ban on dance bars, affecting a large
number of women who earned an income dancing in these establishments. When the
ban was challenged in the Supreme Court, the Court observed that if the affected
women could not dance, they would be pushed out of jobs with no other source or
means of livelihood. It noted that ‘it was better to dance than to beg’, and thus struck
the ban.18

The most important aspect of any right is that it be socially guaranteed. 19 Without this
aspect, the person only holds the right in name, not in substance. 20 The social guarantees

13
Supra Note 25.
14
Supra Note 25.
15
India Const. Art. 21.
16
Olga Tellis&Ors. V. Bombay Municipal Corporation &Ors, 1986 Air 180.
17
State Of Maharashtra &Anr. V. Indian Hotel And Restaurants Association And Ors., Air 2013 Sc 2582.
18
Id.
19
HENRY SHUE, BASIC RIGHTS: SUBSISTENCE AFFLUENCE AND US FOREIGN POLICY 13-34(Princeton
University Press 1996).
20
Id.

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require the existence of correlative duties to each right.21 One of these duties is the duty
to avoid depriving the person of their right. With respect to surrogacy, the government
would have the duty to avoid depriving women of their right to livelihood- but a ban
on their means of livelihood does exactly that. If the ban comes into existence, the
surrogate mothers will not have the substance of their right to life - only a right in
name.

Clearly, the ban would cause at least some level of impoverishment, if not a widespread
impact on the poor and nearly-poor households. Upendra Baxi, in his book The Crisis of
the Indian Legal System, wrote about how a failure of redistribution of resources to
meet basic needs could make it difficult to inculcate the ethic of rule-following. 22 This is
the biggest reason why an underground surrogacy market would very likely come into
existence. The inability of the government to provide women with the resources
required to meet their basic needs, coupled with the additional injustice caused by the
government taking away a lucrative source of livelihood would push women into these
spaces despite the dangers to their health.

The policy utterly disregards the voice of the surrogate mothers, unarguably the most
important stakeholders in this scenario. It is highly paternalistic in that it simply
assumes that poor women cannot make choices for themselves and have been forced
into the trade by other people. The policymakers and lawmakers seem to proceed with
the assumption that they know what is best for their subjects. As an interesting side
note, members of the Parliamentary Standing Committee and the Union Cabinet- both

Supra Note 35.

21

UPENDRA BAXI, THE CRISIS OF THE INDIAN LEGAL SYSTEM, ALTERNATIVES IN DEVELOPMENT: LAW 4-
22

16(Vikas Publishing House 1980).

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of which play important roles in the shaping of the policy- comprise only about 20% 23
and 22%24 of female members, respectively.

The government policy on commercial surrogacy is a prime example of what policies

that are non-participative look like. It will miss its aim entirely, have a number of
unintended deleterious side effects, and impoverish and endanger the very sections of
society it wishes to protect.

CONCLUSION

It is imperative that the government realizes that a ban would not result in a stoppage
of all surrogacy transactions. It would only increase the transaction costs. And when
transaction costs are increased, they are almost always borne by those on a lower
footing in the bargain.

The policy should instead focus on empowering surrogate mothers and putting them
on equal footing with their clients. The only way to do this is by providing the
surrogate mothers with legal rights, thereby protecting their autonomy and agency.

The Surrogacy (Regulation) Bill, 2016 reflects a policy, the effects of which have not
been anticipated correctly. If brought into force, it would perpetuate cycles of poverty
and exploitation that women face. This paper has attempted to highlight the regressive
thought processes that have gone behind creating the policy, and the widespread
implications that enforcement of the same would have. Hopefully, the government soon
realizes the dangers of its proposal, and rethinks its policy with respect to surrogacy.

23
Department-Related Parliamentary Standing Committee On Health And Family Welfare, 102ND REPORT
ON THE SURROGACY (REGULATION) BILL, 2016, Pg. (I),
Http://Www.Prsindia.Org/Uploads/Media/Surrogacy/Scr-%20surrogacy%20bill,%202016.Pdf.
24
A Staff Writer,Nirmala Sitharaman’s Elevation Makes It 6 Women Ministers In Modi’s Cabinet, LIVE
MINT (Sep. 4, 2017, 3:30 Am), Https://Www.Livemint.Com/Home-Page/Qhpbawjllh23d6sddrd5dk/6-
Women-Ministers-In-Narendra-Modis-Cabinet.Html;Fe Online, Narendra Modi Cabinet: Full List Of
Ministers Nd Their Updated Portfolios, FINANCIAL EXPRESS (Sep. 4, 2017, 11:00 Am),
Https://Www.Financialexpress.Com/India-News/Narendra-Modi-Cabinet-Full-List-Of-Ministers-And-
Their-Portfolios-Updated/838588/.

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EVOLUTION AND APPLICATION OF SCIENTIFIC AND FORENSIC

EVIDENCE AT COURTS: ARE THE STAKEHOLDERS KEEPING UP?

*
Dr. Harleen Kaur

INTRODUCTION

The laws of India do not define scientific or forensic evidence. 1 With rapid
advancements in the field of science and technology, it seems improbable that laws
could cover the ambit of the field of scientific and forensic evidence. Ultimately, a court
acts as a gatekeeper of scientific and forensic evidence as each case is decided upon the
features peculiar to itself.

The Supreme Court of India described the importance of forensic evidence in the case of
Dharam Deo Yadav v. State of UP where it observed that forensic evidence is free from
the infirmities present in other methods of evidence. 2 In this case, the court also
endorsed the tests of scientific knowledge as set out by the United States Supreme
Court in Daubert v. Merrell Dow Pharmaceuticals 3 which include testability or
falsifiability, peer review, a known or potential error rate and general acceptance within
the scientific community.4 The apex court added criteria like relationship of the
technique to methods that have been established to be reliable, the qualifications of the
expert witness testifying based on the methodology, the non-judicial uses of the
method, logical or internal consistency of the hypothesis, consistency of the hypothesis
**
Health Policy Consultant, National Institute Of Public Finance And Policy, New Delhi.
1
The Dictionary Meaning Of Scientific Evidence Is “The Testing Of A Hypothesis Or Theory That Is
Objective And In A Controlled Environment.” Scientific Evidence, The Law Dictionary, Available At
Https://Thelawdictionary.Org/Scientific-Evidence/. The Dictionary Meaning Of Forensic Evidence Is
“Evidence That Can Be Used In A Court Based On Science And Can Be Blood Tests, Ballistics, And Dna.”
Forensic Evidence, The Law Dictionary, Available At Https://Thelawdictionary.Org/Forensic-
Evidence/.
2
Dharam Deo Yadav V. State Of Up, (2014) 5 Scc 509.
3
Daubert V. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).
4
See, Supra 1.

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with accepted authorities and presumption of the hypothesis or theory to the

aforementioned tests for scientific knowledge.5

This brings up the question whether the laws and guidelines from courts are translating
to better investigation and prosecution techniques using scientific methods.

This paper attempts to correlate the status of the criminal justice system in the country
with the usage of scientific and forensic methods of investigation. Reports by expert
committees and court judgments are analysed to identify failures in the field of
scientific and forensic methods of investigation in India. Interventions are suggested to
improve the current status.

EVOLUTION OF SCIENTIFIC AND FORENSIC EVIDENCE IN INDIA

The usage of forensic and scientific evidence in Indian jurisprudence can be noticed
long before the attainment of Indian independence. While the procedural laws in India
never barred scientific evidence from being considered in the court of law, certain
provisions specifically catering to this type of evidence are present in some laws. The
Indian Evidence Act, 1872 contains provisions for the relevance of opinion of third
party ‘experts’.6 Under the provisions of this Act, the opinions of experts are relevant
when a court has to form an opinion on foreign law, science, art, or identity of
handwriting.7 Experts are defined as persons skilled in such foreign law, science, and
art.8

After independence, scientific evidence was incorporated in the Constitution of India. 9

Article 246 of the Constitution, read with Seventh Schedule, places agencies and

5
See, Supra 1.
6
The Indian Evidence Act, 1872, No. 1, Acts Of Parliament, 1872.
7
Ibid.
8
Ibid.
9
Art. 246 Read With Schedule Vii, The Constitution Of India.

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institutions for scientific or technical assistance in the investigation or detection of crime

under entry 65(c) of the Union List.10

The Code of Criminal Procedure, 1973 under section 293 enumerates the types of
Government Scientific Experts who can give evidence in any inquiry, trial or other
proceeding.11 These experts include chemical examiners, fingerprint examiners, forensic
examiners and serologists.12 The government has the power to notify more
specialisations under this section.13 This law was amended to include recent
developments in the area of scientific evidence. The Code of Criminal Procedure
Amendment Act, 2005 added an explanation of the word ‘examination’ to include,
“examination of blood, blood stains, semen, swabs in case of sexual offences, sputum
and sweat, hair samples and finger nail clippings by the use of modern and scientific
techniques including DNA profiling and such other tests which the registered medical
practitioner thinks necessary in a particular case.” 14 This amendment clarified that a
registered medical practitioner can decide the type of scientific tests to be undertaken in
a case. As registered medical practitioners are not the only type of scientific experts
acceptable in a court of law, uncertainty over the scope of scientific and forensic
evidence prevailed.

The Information Technology Act, 2000 amended the Evidence Act to make electronic
evidence admissible in a court of law. 15 Therefore, paving the way for use of forensic
and scientific evidence using electronic means.

These legal provisions do not provide a clear definition of experts and their subject of
expertise. Therefore, the issues relating to these provisions are being developed and
applied with the help of judicial pronouncements.

10
Ibid.
11
Code Of Criminal Procedure, 1973, No. 2, Acts Of Parliament, 1973.
12
Ibid.
13
Ibid.
14
The Code Of Criminal Procedure (Amendment) Act, 2005, No. 25, Acts Of Parliament, Jun. 2005.
15
The Information Technology Act, 2000, No. 21, Acts Of Parliament, Jun. 2000.

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In the case of Baswantrao Bajirao v. Emperor decided by the Bombay High Court,
Justice Vivian Bose wrote the following while deciding whether an accused in a murder
trial was insane or not;

“The question whether in given circumstances a man was sane or insane is for the Court
to decide. An expert can only furnish a Court with data from which insanity can be
inferred. It is beside the point whether in the opinion of the doctor the man was
medically insane.”16

Justice M. Hidayatullah, in the same judgment, opined that the medical expert of the
case should be asked to describe the state of mind of the accused at the time of the
commission of the act and not answer whether due to the effect on the state of mind the
accused was capable of controlling his conduct.17

Whether a person is an expert or not is also not provided clearly within the law. In the
case of Bachraj Factories Ltd. v. Bombay Telephone Co. Ltd., the High Court of Sind
reflected on the background of the expert witnesses to establish that they are experts in
‘telephony,’ which in its view was a scientific field. 18

In the Meerut Conspiracy case, the Allahabad High Court refused to look into the
expert opinion on whether the documents in question had been written on the same
typewriting machine.19 It opined that Section 45 of the Indian Evidence Act did not have
provisions for considering such opinion. 20 However, the court also clarified that it may
ask the expert witness points on the basis of which he/she made their opinion and
come to its own conclusion, without considering such assistance as a relevant fact in
itself.21 The question of whether an expert evidence on typewriter technology is
admissible under the Evidence Act came up again in the case of State v. S.J.

16
Baswantrao Bajirao V. Emperor, 1949 Crilj 181.
17
Ibid.
18
Bachraj Factories Ltd. V. Bombay Telephone Co. Ltd., Air 1939 Sind 245.
19
S.H. Jhabwala V. Emperor, Air 1933 All 690.
20
Ibid.
21
Ibid.

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Choudhary.22 In this case, the Supreme Court held that the words ‘science’ and ‘art’ in
section 45 of the Evidence Act are of wider connotation and would include experts on
typewriters as well.23

In the case of State of Himachal Pradesh v. Jai Lal and Ors, the Supreme Court observed
that,

“An expert is not a witness of fact. His evidence is really of an advisory character. The
duty of an expert witness is to furnish the Judge with the necessary scientific criteria for
testing the accuracy of the conclusions so as to enable the judge to form his independent
judgment by the application of this criteria to the facts proved by the evidence of the
case. The scientific opinion evidence, if intelligible, convincing and tested becomes a
factor and often an important factor for consideration along with the other evidence of
the case. The credibility of such a witness depends on the reasons stated in support of
his conclusions and the data and materials furnished which form the basis of his
conclusions.”24

With the passage of time, the issue of defining scientific evidence was discussed in
various types of cases. While initially the issues arose in typical criminal cases, experts
for other subject matters including taxation, intellectual property, arbitration,
information technology and others were also introduced as scientific experts of their
domains.25

In the case of Dharam Deo Yadav v. State of UP, the Supreme Court emphasised on the
importance of scientific evidence which, according to it, included both hard science
(such as physics, chemistry, mathematics, biology) and soft science (such as economics,

22
State V. S.J. Choudhary, 1996 Air 1491.
23
Ibid.
24
State Of Himachal Pradesh V. Jai Lal, Air 1999 Sc 3318.
25
As Examples Of Usage Of Scientific Experts In Various Fields, See: The Crucial Role Of Experts In
Arbitration, The Forbes, Available At Http://Www.Forbesindia.Com/Blog/Economy-Policy/The-
Crucial-Role-Of-Experts-In-Arbitration/ And Relevancy Of Experts In Patent Cases, Law And Practice
Blog, Available At Http://Lawandpracticeblog.Com/Relevancy-Of-Expert-In-Patent-Cases/.

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psychology and sociology.)26 It was observed that the opinions of scientific experts are
important in assisting the court to understand the evidence or determine the fact in
question.27

Case laws on this subject indicate that the courts believe that the function of a scientific
or other expert should only be as an assistant of the court and not as a decision maker.
A court can accept or reject an opinion of the scientific expert based on the
circumstances involving the nature of evidence and the facts known to the expert. The
role of a scientific expert is advisory in nature. The task of concluding whether a
discipline is a science or art, as well as whether an individual presented by a party has
enough experience in such field to be termed as an ‘expert,’ is also the function of the
courts. The terms ‘scientific’ and ‘forensic’ evidence are seen to be used interchangeably
in many cases.

SPECIALITIES IN THE FIELD

Scientific and forensic evidence is important for both civil and criminal cases. A
scientific expert can be a witness for either party in any trial. As discussed in the
previous section, scientific and forensic methods of investigation in India can be of great
help in providing evidence in criminal and civil cases. But, the appreciation of such
evidence varies on a case to case basis. In the case of Magan Bihari Lal vs State Of
Punjab, the court held that it is unsafe to base a conviction solely on an expert's opinion
without substantial corroboration.28

In Santosh Kumar Singh v. State, the Supreme Court held that a court cannot substitute
its own opinion with that of an expert in recent development in sciences such as DNA
profiling.29 However, sometimes the courts are bound by laws which do not foresee
advancements in the scientific technology. In the case of Smt. Kamti Devi & Anr v.

26
See, Supra 2.
27
See, Supra 2.
28
Magan Bihari Lal V. State Of Punjab, 1977 Air 1091.
29
Santosh Kumar Singh V. State Through Cbi, (2010) 9 Scc 747.

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Poshi Ram, it was held that when under section 112 of the Indian Evidence Act the test
of conclusive proof of birth under marriage is detailed, DNA test would not be
acceptable as evidence as it is not mentioned in the law. 30 In the landmark case of Selvi
v. State Of Karnataka & Anr, the Supreme Court examined the implications of using
certain scientific techniques, including, the narco analysis, polygraph examination and
the Brain Electrical Activation Profile (BEAP) test for investigation in criminal cases. 31 It
held that using these techniques forcefully on a person is an unconstitutional act as it
intrudes personal liberty of the person.32 Voluntary usage of these techniques under
proper safeguards was allowed for investigation but was not held to be admissible as
evidence.33

For the purpose of better implementation of usage of scientific methods of investigation

in India, on March 13, 2003, the Government of India set up a Directorate of Forensic
Science under the Ministry of Home Affairs (MHA). 34 The purpose of this unit is, inter-
alia, to scientifically assist the judicial system and disseminate their knowledge in the
field.35 The universe of forensic and scientific investigation and training institutes
include central government institutes and their members, state government institutes
and their members, private education institutes and private practitioners. There are a
number of fields from which a scientific expert can assist the court.

An indicative list of the different type of forensic and scientific investigative techniques
and evidence recognised by the courts and the government is provided here: 36

1. Medical forensics

30
Smt. Kamti Devi & Anr V. Poshi Ram, Air 2001 Sc 2226
31
Selvi V. State Of Karnataka & Anr, Air 2010 Sc 1974
32
Ibid.
33
Ibid.
34
Resolution No. 25011/41/2001-Gpa.Ii/Pmii, Ministry Of Home Affairs, Government Of India, (2003),
Available At Http://Dfs.Nic.In/Pdfs/First%20resolution%20of%20dfss.Pdf.
35
Ibid., See Annexure.
36
List Curated From: Misra, Gopal Ji And Damodaran, C., Perspective Plan For Indian Forensics,
Ministry Of Home Affairs, Jul. 2010, Available At Http://Dfs.Nic.In/Pdfs/First%20resolution%20of
%20dfss.Pdf.

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2. Odontology
3. Typewriter technology
4. Ballistics
5. Chemistry
6. Physics
7. Anthropology
8. Toxicology
9. Voice-identification
10. Fingerprint analysis

11. Image Analysis

12. Cell Phone Forensics

13. Digital Forensics

14. Network Forensics

15. Speaker Recognition

16. Photofit Portrait

17. Biometrics

18. Automated Fingerprint Identification System (AFIS)

19. High-throughput DNA Sequencing and Genotyping

20. Microbial Forensics

21. Forensics Against Narco-terrorism

22. Forensic Intelligence

23. Nuclear Forensics

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It is the duty of the court to separate ‘junk science’ from actual scientific evidence. For
this exercise, the court can exercise its power in determining validity of evidence by
questioning any stage of evidence collection and presentation. Some examples of the
checks and balances are provided in Table 1.

Stage Examples of checks and balances

Evidence collection Chain of custody, labelling of evidence, storage of

evidence

Expert testimony Qualification and experience of expert, tests

performed, international standards, reliability of
results

Table 1: Example of checks and balances used by courts while appreciating scientific
evidence

STUDYING THE GAP

The conviction rate in India is 4%.37 The National Crime Records Bureau Report, 2016
provides statistics on the evidence collection at the police investigation stage. 38 It states
that out of the 4.11 million IPC cognisable cases; 0.57 million (13.8%) were described as
being ‘true but insufficient evidence’ (sic) by the police and were not prosecuted.’ 39 The

37
Conviction Rate Is The Ratio Of Cases In Which Accused Are Convicted To The Total Cases Tried By
Courts In A Given Year; And Is A Function Of The Components Of The First Three Subsystems Of The
Criminal Justice System. See: Problems In The Criminal Investigation With Reference To Increasing
Acquittals: A Study Of Criminal Law And Practice In Andhra Pradesh, Bureau Of Police Research And
Development, 2016, Available At
Http://Www.Bprd.Nic.In/Writereaddata/Userfiles/File/201608020459199930125report.Pdf.
38
Crime In India 2016 Statistics, National Crime Records Bureau, Oct.2017, Available At
Http://Ncrb.Nic.In/Statpublications/Cii/Cii2016/Pdfs/Newpdfs/Crime%20in%20india%20-
%202016%20complete%20pdf%20291117.Pdf.
39
Ibid.

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Malimath Committee Report on reforms of criminal justice system recommended, inter-

alia, comprehensive usage of forensic science by the investigating. 40 The Law
Commission of India, in its 239th report, highlights that lack of expertise and sustained
effort in investigation and non-utilisation of scientific methods of investigation is
resulting in low rate of convictions and even implication of innocent accused persons. 41

The scientific methods of investigation form an important part of the criminal justice
system, which is considered to be the primary function of a welfare state. 42 A welfare
state must strive to provide public goods; consisting of prevention and controlling
crime, maintaining public order and peace, protecting the rights of victims as well as
persons in conflict with the law, punishing and rehabilitating those adjudged guilty of
committing crimes and generally protecting life and property against crime and
criminality.43 This is done through four subsystems:

a. Police
b. Prosecution
c. Courts
d. Correctional facilities44

All the components of these subsystems need to be well versed in scientific and forensic
investigation and evidence to be able to ensure a fair criminal justice system in the
country.

40
Committee On Reforms Of Criminal Justice System, Ministry Of Home Affairs, Mar. 2003, Available At
Http://Mha.Nic.In/Sites/Upload_Files/Mha/Files/Pdf/Criminal_Justice_System.Pdf.
41
Expeditious Investigation And Trial Of Criminal Cases Against Influential Public Personalities, Law
Commission Of India, Mar. 2012, Available At
Http://Lawcommissionofindia.Nic.In/Reports/Report239.Pdf.
42
National Policy Paper On Criminal Justice, Ministry Of Home Affairs, Jul. 2007, Available At
Http://Mha.Nic.In/Sites/Upload_Files/Mha/Files/Pdf/Draftpolicypaperaug.Pdf.
43
Ibid.
44
Ibid.

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In this section, we will reflect on the reasons behind the failure of a trial with relation to
forensic and scientific evidence. Two types of failures are identified for the purpose of
this section and are described below.

A. Absence of guidelines: As forensic and scientific methods keep on evolving,

they need to be constantly upgraded and used in the existing legal system.
Sometimes, there are no guidelines on the procedures for the officers or experts.
The following are incidences of failure of the system due to a complete absence
of guidelines or outdated guidelines for the investigative authorities as well as
experts.
a. Absence of a model autopsy report and video recording of autopsies in
custodial deaths: The National Human Rights Commission studied
reports of custodial deaths in India submitted to it by the states from 1993-
1995 and acknowledged that scientific examination of cases of custodial
deaths were not being undertaken properly.45 It urged all states to
facilitate video recording of post-mortem of cases of custodial deaths in
1995.46 The commission also apprehended that the local doctors were
being pressurised by the police to falsify evidence and shared a model
autopsy form with details of scientific steps involved in performing an
autopsy with all states.47
b. Impossibility of application of existing laws: In the case of State of Punjab
& Ors v. M/S. Amritsar Beverages Ltd., the Supreme Court dealt with the
interpretation of the provisions of the Punjab General Sales Tax Act,
1948.48 In this case, the Sales Tax Department of the state seized some

45
Booklet And Instructions, National Human Rights Commission, 1993-1997, Available At
Http://Nhrc.Nic.In/Documents/Sec-1.Pdf.
46
Ibid. The Guidelines Were Changed In 2001 To State That Videographed Post Mortem For Deaths In
Jail Is Required Only In Cases Where There Is A Suspicion Of Foul Play. See: D.O. No. 3/2/99-Prp&P,
National Human Rights Commission, Dec.2001, Available At
Http://Nhrc.Nic.In/Documents/Lettertocm.Pdf.
47
Ibid.
48
State Of Punjab & Ors V. M/S. Amritsar Beverages Ltd., (2006) 7 Scc 607.

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documents of a dealer in the form of a hard disk. 49 However, under

section 14 of the Act, while returning the documents, the officer has to
place their signatures and official seal at the relevant portions of the
documents and get it verified by the respondent. 50 The court held that
even though literal compliance of provisions of the Act was impossible,
the officers should have taken recourse to a scientific method by making
copies of the relevant documents, affixing their signatures and furnishing
a copy to the respondents.51

However, lack of clear guidelines in law can result in subjective

assessment of the situation by the authorities, which could affect the
scientific credibility of an evidence.

B. Improper methods of investigation and presentation of evidence: Sometimes,

even in the presence of guidelines, the investigative authorities as well as
scientific experts falter in their duty and are unable to furnish sufficient evidence
leading to acquittal of the accused. Some examples of these situations are
discussed below.
a. Not producing scientific evidence before the court: In the case of Tomaso
Bruno and Ors v. State of UP, the accused was acquitted because the
prosecution failed to produce CCTV evidence against the accused,
considered to be material evidence by the court. 52 The court also observed,
“With the advancement of information technology, scientific temper in the
individual and at the institutional level is to pervade the methods of
investigation. With the increasing impact of technology in everyday life
and as a result, the production of electronic evidence in cases has become

49
Ibid.
50
Ibid.
51
Ibid.
52
Tomaso Bruno V. State Of Up, (2015) 3 Scc (Cri) 54.

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relevant to establish the guilt of the accused or the liability of the

defendant. Electronic documents strictu sensu are admitted as material
evidence.”53

Reports have pointed out towards the tendency of investigating agencies

to not use scientific methods of investigation. For example; The Malimath
Committee Report, 2003 stated that only 5-6% of the registered crime cases
were referred to the Forensic Scientific Laboratories and Finger Print
Bureau.54 The Law Commission of India in its 185 th expressed concern over
the tendency of the police to want confessions to become easily admissible
so that there is no need for effective scientific and professional
investigation.55

b. Violation of guidelines: In November 2017, The Human Rights Watch

reported that many medical experts in India have been flouting the
government guidelines on examination of sexual assault survivors. 56 The
doctors have been performing ‘two-finger test’ on rape survivors even
when the government guidelines insist that the procedure is unscientific
and prohibits its use.57 This leads to percolation of misinformation at the
investigation stage in case the police takes the evidence of the expert at
face value.58 In the case of Dr. (Smt.) Nupur Talwar v. State of UP and
Ors., the High Court of Allahabad while rejecting the evidence given by

53
Ibid.
54
Report, Committee On Reforms Of Criminal Justice System, Government Of India, Mar. 2003, Available
At Http://Mha.Nic.In/Sites/Upload_Files/Mha/Files/Pdf/Criminal_Justice_System.Pdf.
55
185th Report On The Review Of The Indian Evidence Act, 1872, Law Commission Of India, Mar. 2003,
Available At Http://Lawcommissionofindia.Nic.In/Reports/185threport-Partii.Pdf.
56
Doctors In India Continue To Traumatise Rape Survivors With The Two-Finger Test, Human Rights
Watch, Nov. 2017, Available At Https://Www.Hrw.Org/News/2017/11/09/Doctors-India-Continue-
Traumatise-Rape-Survivors-Two-Finger-Test.
57
Ibid.
58
Ibid.

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the scientific expert produced by the CBI observed that the expert had
made subjective findings in his report, which had no place in forensic
examination.59 In this case, the High Court observed that the medical
experts had committed ‘medical blasphemy’ by supporting the theory of
the prosecution without scientific evidence of the same. 60

The failure of criminal justice system due to lack of scientific methods of investigation
and adduction of evidence is, therefore, an important concern in recent times. The
failure occurs at the stage of formation as well as the implementation of laws.
Investigating authorities and expert witnesses need to constantly upgrade their
knowledge about advancement in scientific as well as legal processes in order to be able
to present their case in the court of law. There is also a need to ensure that the
investigating authorities have sufficient manpower, infrastructure, training and
motivation to use scientific evidence.

CONCLUSION AND THE WAY FORWARD

Reports on the Criminal Justice systems and police reforms have identified systemic
issues which would, once solved, help in securing better conviction rates in the
country.61 One of the recommendations of The Malimath Committee on reforms of
Criminal Justice System included setting up of a new cadre of ‘scientific hands’ who can
assist the investigation officer from the first stage of investigation to ensure
preservation and proper usage of the evidence. 62 While it is of no doubt that many
problems in this field are a result of systemic flaws in the subsets of the system, there is
also a need to solve pressing issues through innovation and minimal intervention.

59
Dr. (Smt.) Nupur Talwar V. State Of Up, Ca No. 293 Of 2014, Allahabad High Court, Oct. 2017,
Available At Http://Elegalix.Allahabadhighcourt.In/Elegalix/Webdownloadjudgmentdocument.Do.
60
Ibid.
61
See, Supra 40; Supra 42 And Public Order, Second Administrative Reforms Commission, Government
Of India, 2007, Available At Http://Arc.Gov.In/5th%20report.Pdf.
62
See, Supra 40.

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The present analysis of the situation demonstrates that the law is slow in catching up to
the technological advancements in the area of scientific and forensic evidence.
Therefore, the courts have to exercise their jurisdiction and act as the gatekeepers of the
forensic science evidence. The problem with this scenario is that various aspects of the
same law are being tried and decided by different courts, which makes it difficult for
the investigators and expert witnesses to understand and apply these guidelines.
Interventions that make better communication between the courts and the investigation
and scientific community could help bridge the information gap between these crucial
stakeholders and ensure better compliance with emerging guidelines. Such
interventions could include:

a. Communicating decisions of the court back to the expert witnesses as well as

investigating officers.
b. Labelling of cases involving an appreciation of scientific or forensic evidence by
the court at the administration level.

Forensic Sciences Department of Government of Tamil Nadu is unique in the country in

that it receives by default a copy of judgment in every case wherein the laboratory
report has been taken on the court file. 63 Communication of decisions of the court with
the expert witnesses would form a feedback loop which can help keeping the scientists
up-to-date as well as help them understand legal technicalities of the case. Labelling the
decisions of courts relating to standards of scientific evidence, identification of a
scientific field and tests for an expert and by the registry before uploading them on the
relevant website of the court could help in dissipating information to all stakeholders in
the system.

63
See, Supra 36.

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NEED FOR ‘RIGHT TO REJECT’ WITH NOTA IN ELECTIONS: A STEP

TO EMPOWER VOTERS

*
Brijraj Deora

INTRODUCTION

“The blank vote is as destructive a form of blindness as the first one (i.e.plauge)”- Jose
Saramago64

India is the largest democratic and Republic country in the world. In any democratic
and republican country election isa heart to the democracy as it is a necessary process of
legitimization of Governance power. 65 In a democracy people have the privilege of
being ruled by a government of their own choice. People choose their representatives

**
Student, Gujarat National Law University, Gandhinagar.
64
Jose Saramago, Seeing 159 (Mariner Books, 2007).
65
Dr. Bimal Prasad Singh, Electoral Reforms In India-Issues And Challenges, 2 Ijhssi, 2013.

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through elections which are the normal features of democracies all over the world.
Butin ourdemocratic society, where voting is seen as the exercise of one’s right to
freedom and equality, and considered as the cornerstone of democracy, the right of
freedom to abstain from making a choice is often lost. Where citizens are free to cast
vote for any candidate contesting in elections, but only few democracies considers the
right of voters of not making any choice or explicitly rejecting all the candidates, if they
find no one deserving. In effect, citizens are vested with the right of freedom of making
the choice but not to withhold making a choice among the candidates standing for
elections.

In some countries, voters are allowed to invalidate their votes by various means such as
by scratching the ballots, or selecting two or more candidates, or crossing out names on
the ballot and apart from this, voters are also allowed to not participate in the elections
in order that the value of their vote do not get counted to the profit of any unsuitable
candidates. But as of consequence these options lead to limit the participation of voters
in democratic elections. Not to vote means not to perform one’s civil duty as well as
have one’s voice counted and due to this the candidates with tainted backgrounds get
benefitted by not having those votes counted, which were against them.

In Indian scenario, the freedom to reject all the candidates has been eluding concept to
voterssince independence and thus voters have been missing their right to withhold
consent. But when citizens gotthe right to vote for no candidate by the way of section
49(O) of the Conduct of Election Rules 1961, there lacked secrecy in doing so as the
voters had to inform the election officer while filling a form for this purpose and casting
the vote on separate ballot, which in fact violates the right to vote with secrecy. And
with introducing EVMs, the ways to invalidate the vote by scratching out ballots or

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voting more than one candidates by the voters were also made impossible. Thus the
only way left to get the vote not counted for the undeserving candidate was to not
exercise the right of voting in elections.

As a result, low turnouts in voting and dissatisfaction for the quality of contestants in
elections has been the issues Indian democracy is facing for a long time. This right
means that if a person does not approve of any candidate selected by the party cabal, he
should not have to choose the least undesirable or sit at home sulking and cursing the
law. In a vibrant democracy the voter should be able to hit effectively at all the political
parties to show that all the candidates selected by them are undesirable. 66

JUDGMENT INTRODUCED “None Of The Above”(NOTA) OPTION

The judgment of Supreme Court of India in the case of People's Union for Civil Liberties
Vs. the Union of India, 67 dated 27th September 2013, has introduced the new concept of “
none of the above” by directing the election commission to add an extra button of
NOTA in the electronic voting machines andbecame the 14 th country to institute
negative voting. Thus giving the voters a new choice of “none of the above(NOTA)’
which facilitates them with the option of not to vote any candidate listed on ballot if
they find them to be undeserving. And also as per Hon’ble court direction, these NOTA
votes will be counted and declared with the election results. As a result, now the
citizens will not have to abstain themselves from the exercising their right of voting or
invalidating their votes to reject any unsuitable candidates.

TWO MAIN COMPONENTS OF THIS JUDGMENT ARE

 Right to vote also includes Right not to vote or Right of negative opinion:
Right of negative opinion to a voter implies that he has right to abstain from
choosing any candidate while voting in election. Thus giving a choice to remain
neutral when the voterdo not finds any candidate deserving to be elected. Right
66
Rajindar Sachar, Negative Voting, 45 ECONOMIC AND POLITICAL WEEKLY 81, 81 (2010).
67
People's Union For Civil Liberties V.The Union Of India,(2013) 10 S.C.C. 1 (India).

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of negative opinion, therefore finds its basis in the freedom of speech and
expression.68
 Right to secrecy is an integral part of free and fair election. As per Article 21 of
the Indian Constitution, it is the basic right of a citizen to exercise its other right
such as right to vote, without any fear, duress or coercion. Therefore, secrecy
during the voting in elections is also an important part of free and fair elections
as the lack of secrecy leads to an arbitrary distinction between those who casts
vote for ruling party and those who don’t and which is in violation of Article 14,
Article 19(1)(a) and Article 21 of the Constitution.

IMPORTANCE OF NOTA IN INDIAN DEMOCRACY

The verdict of Supreme court to introduce “None of the above” option on the election
ballot was seen as revolutionary measure which predicted to help in rising turnouts
during voting in elections, and out show the amount of dissatisfaction among citizens,
against all political groups.

 Election is the one of many pillars on which democracy stands, and thus the
participation of its citizens in the election is an essential feature of a growing
democracy. In fact, the participation of citizens in election is the participation in
democracy itself.69 Thus, the NOTA option can increase the participation of
voters in an electoral process as well as in growth of democracy. Whereas the
Non-participation leads to disinterest and dissatisfaction, which cannot be said
as a healthy sign for growth of democracy in India.
 The preamble of our constitution aims to provide ‘political justice’ to the people.
When the criminal elements are becoming a part of the legislature, then securing

68
V R Vachana&Maya Roy, Nota And Indian Voters, 53 ECONOMIC AND POLITICAL WEEKLY 28, 30 (2018).
Ayushikalyan, Nota Option- Political Gamechanger Or Mere Trumpery, 2(3)THE WORLD JOURNAL ON
69

JURISTIC POLITY 1, 1-6 (2016).

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any form of justice, be it social, economic or political, is a hollow promise. The

sovereign of India is crippled by these criminal elements who uses threat,
intimidation, violence and even sexual assault to win the election.
 Negative voting occurs when voters respond more strongly to political actions or
outcomes that they oppose than to comparable actions or outcomes they favor. 70
Therefore, NOTA can be viewed as an instance of negative voting since it is a
vote of disapproval and Hence, Voter gets a chance to show their disapproval
with the kind of contestants projected by political parties in election. And
eventually, due to huge disapproval by the voters towards the candidates being
projected, it will lead to a systemic change and thus the political parties will have
to consider the will of the voters and put up the candidates with good character.
 Also for better governance in democracy, it is important that the only candidates
with good character should be chosen as representatives of people. For this in a
growing democracy, the voters must have the option of ‘None of the
above(NOTA)’ button, which can force the political groups to project a deserving
candidate.And this scenario shows the dire need of negative option.71
 Also, it was only after introduction of NOTA, in the 2014 general elections, the
problem of low voters turnout in elections has improved, which is a essential
requirement of strong democracy. The voters turnout rate is the general elections
of 2014 reached 66.4 percent, which is the highest ever in history of independent
India.72
 As a result, the option for negative voting would definitely serve the purpose of
democracy as it would send clear message to political groups and their
contestants as to what the voters thinks about them.

70
Arindammandalet Al., Does Nota Affect Voter Turnout? Evidence From State Legislative Elections In
India, MUNICH PERSONAL REPEC ARCHIVE 1, 3 (2017).
71
Manjarikatju,The None Of The Aboveoption, 48(42)ECONOMIC & POLITICAL WEEKLY10, 11 (2013).
72
Eswaransridharan Et Al., India’s Watershed Vote, 25(4) JOURNAL OF DEMOCRACY 20, 22 (2014).

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Thus the NOTA option can be seen as the one such step towards the electoral reforms in
the largest democracy of world, which will essentially aid in conducting clean and fair
elections, then after, the voters can dream of historic change in Indian democracy.

NEGATIVE FEATURES WHICH MAKES ‘NOTA’ LESS EFFECTIVE

 According to the clause (a) provisions of Rule 64 of conduct of elections

Rules,1961,73 read with section 65 of the Representation of People Act, 1951, the
Returning officer declares the candidate, who has been polled the maximum
number of valid votes, as winner or elected. So these provisions clarifies that the
Right to NOTA option does not mean rejection or the Right to Reject. Thus, it
seems self-defeating to the whole purpose of NOTA option but according to
Indian democracy the rule of first past the post is declared the winner. As a
result, if 99 out total 100 votes casted are for NOTA but the one who got that
single remaining vote would be declared as winner.
 It has been a long standing demand to conduct re election if the number of total
NOTA votes exceeds a certain percentage. But, unfortunately it is not backed by
any legal support yet and thus NOTA has just remain cosmetic in nature.
 Thus the option of NOTA can only be proved as productive step if it is been
correlated with the Right To Recall option in which the citizens have right to
recall the elected candidates. As, this will force the elected representatives to
perform better in constituency and thus will increase the importance of NOTA
which acts as pre-cursor to public dissatisfaction. Presently, the electoral system
of India lacks the presence of Right to Recall option, which could strengthen the
essence of NOTA.

73
Ministry Of Law & Justice, The Conduct Of Elections Rules 1961, MINISTRY OF LAW & JUSTICE,(Feb. 20,
2018, 10:05am),Http://Lawmin.Nic.In/Legislative/Election/Volume%202/Conduct%20of%20election
%20rules,%201961.Pdf.

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NOTA IS JUST A REFLECTIONS BUT NOT A RESOLUTIONS

The step of bringing NOTA is a revolutionary one which considers all the distinct views
and makes Indian democracy more inclusive. It gives a chance to express the anger and
displeasure with the bad politics felt on the street onto the ballots. 74 Also it is a helpful
parameter to measure to judge that how seriously the views of voters about the ideal
candidates are taken by political parties which field them in elections.

But NOTA couldn’t play decisive role here though it reflects all the varied views of
voters but unable to provide the way to reach at satisfactory results. As, it does not
empowers voters with the Right to Reject the candidates, and abstain them from
contesting and getting elected in the election. In fact, it does not have any impact on
electoral results. Even though if the majority portion of voters opt for NOTA and reject
all contestants, the one who will be less rejected would emerge as elected candidate. It is
only because NOTA has been given no teeth as, it does not lead to cancellation of polls
or re-elections, or instill fear in political group to project honest candidates. 75

Thus people have to accept the situation when the elected candidate might have got
more NOTA votes than those votes in his favor and the will of voters will remain
curtailed. Eventually, the NOTA option may also help in decreasing the decisive votes
in an election, which decides the winner.Therefore when majority reject the tainted
candidates, the minority portion of votes casted in support of these candidates makes
them elected, and resultantly NOTA could not make any impact on the electoral
results.As a result, there is huge chance that NOTA would not be able to reform the
electoral process and make it a more voters friendly system.

RIGHT TO REJECT: NEED OF THE HOUR

In the present democratic society, usually political parties chooses their candidates after
looking at various factors like money power of candidate, descendent of former
74
E. Sridharan, India’s Watershed Vote: Behind Modi’s Victory, 25JOURNAL OF DEMOCRACY 20, 25 (2014).
75
N.S. Upadhyaya&Ashishshrivastava, The Electoral Reforms In Contemporary India, 3 ISRJ, 1 (2013).

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representative or any other factor which might increase the winning possibility of that
political group and thus do not consider important factor such as whether he is honest
or not, having any clean background or not, tainted character and without looking for
the choice of people which might lead to disapproval with the candidate presented to
them.76

Thus here, at this stage voters should be vested with the right to reject the candidates
which they feels undeserving. As here the voter can choose NOTA option to express his
disapproval with all the candidates on ballot. As a result if ‘None of the above’ option
gets the majority portion of the votes in a constituency then in such conditions re-
elections should take place with fresh candidates and all the old candidates should be
considered as rejected.

The introduction of right to reject the candidates and elect a new candidate will restore
power to the voters and will eventually lead to increase in their participation in
electoral process as well as in democracy. By this way voter can show their discontent
with bad candidates and political groups. This would lead to foster honesty and purity
in elections as the parties would be compelled to field good candidates. 77

REASONS TO SUPPORT RIGHT TO REJECT

76
Apoorvamandhani, Recognize ‘Right To Reject’ In Elections,Livelaw.In (Feb.20, 2018, 07:17
Pm),Http://Www.Livelaw.In/Recognize-Right-Reject-Elections-Maximum-Nota-Votes-Fresh-Elections-
Held-Pil-Sc-Read-Petition.
77
Apurvaprabhakar, Nota In India-An Electoral Renaissance,3(6) INTERNATIONAL JOURNAL OF
HUMANITIES AND SOCIAL SCIENCE INVENTION 1, 5-7(2014).

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 It empowers people to express their discontent by rejecting the candidate and not
allowing him to contest in election, if they are dissatisfied with his performance
or character.
 It would keep candidates with criminal backgrounds away from election and not
getting elected as representative without people’s choice and would also compel
the parties to field good candidates only.
 It would give rise to a honest and uncorrupt representative as he would get
elected after rigorous selection procedure and thus Right to Reject would mean
true democracy as the voters will get chance to select their ‘representative’ in
true sense of word.
 It may seems to be a tedious process but it will definitely take the entire system
along with elected representatives, in the direction of a better representativeness
by reducing sectarian effects of vote banks, and would encourage political
parties to field better candidates.

NOTA WITH THE‘RIGHT TO REJECT’ COULD BE A STEP TO EMPOWER

PEOPLE

By the way of NOTA option, the voters showing their anger on streets got chance to
take it to ballot boxes in a more effective manner. It can be given more strength, if the
results of NOTA options are legislatively linked to outcomes of election in any way,
may it be calling for re-election, revisiting how to tally votes casted by voters, or by
banning rejected candidates and political groups becauseit cannot be expected that the
political parties, which project candidates with tainted or criminal background and
rejected by voters, will morally take responsibility and recall its candidates. If it was
possible, they would not have projected such candidates, or defend their rights to do so.

Thus NOTA is a step to restore power to the voters and it is just one such step among a
series of steps to do so.Our Democratic institutions are formed to reflect the aspirations
and hopes of the people, and fulfill demands and needs of the society, and for this

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purpose they should constantly change themselves with the time. 78 Similarly, political
groups projecting candidates in elections should develop more accountability as well as
should respect voice of the citizens they represent and should fear to be rejected if their
candidates deviate from performing the duties or become tainted. Thus, our electoral
system needs reformation and rethinking to clean the streets of politics and only this
way can the honest and uncorrupt candidates can enter politics which would definitely
give rise to a nation-building politics where there would be no place for tainted
candidates.

Along with this, due to the intervention of the Supreme Court in 2003 and the oversight
of the Election Commission of India, candidates seeking election to state and national
office are required to publicly furnish details of their criminal, educational, and
financial records. One of the underlying premises motivating this shift was the belief
that voters, once exposed to credible information about the attributes of political
candidates, might withdraw popular support from those who are seen as tainted. 79As of
results in 2014 General elections, About one-third (34 percent) of all members of
parliament declared that they were involved in criminal cases, including 21 percent
who disclosed ongoing cases of a serious nature. And about one-third of state assembly
representatives (31 percent) faced at least one criminal case. Again about half of those,
or roughly 15 percent, reported cases in which they stood accused of committing
serious crimes.80

CONCLUSION

The main objective of elections is to elect a good representative for citizens and not to
reject them. But as the time passed the purpose of election left a way far behind as the
political parties started fielding candidateswith tainted backgrounds, solely with the

78
Ronojoysen, Identifying Criminals And Crorepatis In Indian Politics: An Analysis Of Two Supreme
Court Rulings,11 ELECTION LAW JOURNAL, 216–225 (2011).
79
Ibid.
80
Trilochansastry, Towards Decriminalisation Of Elections And Politics,49 ECONOMIC AND POLITICAL
WEEKLY, 30-41 (2014).

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purpose of profit and power neglecting the duties towards citizens. Thus the
introduction of NOTA option in the electoral ballot was an effort made in this direction
to instill fear in these political groups, so that they could be forced to come out with
good candidates and policy for the good governance in democracy. But as NOTA lacks
a serious backing in order to keep tainted and undeserving candidates out of power, it
resulted into no impact on these political parties and thus the disapproval and
discontent shown by voters against them is useless and was up to election ballot only as
the maximum votes casted for NOTA do not hinder the candidate’s way to get elected
since NOTA votes have no value. Thus to come out of such situations, the voters should
be necessarily vested with the Right To Reject. And NOTA should be made the weapon
for exercising this right. Hence, the candidates having maximum number of NOTA
votes or having more NOTA votes casted against him, should be rejected and re-
elections should take place with new candidates. Right to reject will restore the power
of electing a suitable representative for citizens as per their choice and will therefore
bring democracy in true sense. Evidently, till today NOTA is just a reflection and not
resolution towards empowering the voters for their rights. It is high time, when option
of NOTA should be made the easy and effective way to reject undeserving candidate.
Right To Reject can bring semblance of change in democratic system of India, if, the
voters are handed over with actual power to dismiss or reject completely the candidate
they dislike and distrust, instead of any fictitious power. This paper concludes that till
today, NOTA is a regressive policy, introduced and practiced as superficial and shallow
but it can be changed if some depth like Right To Reject is added to its policy and is
made bulletproof.

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OVERLAPPING JURISDICTION OF REGULATORS IN INDIA: A NEVER

ENDING BATTLE

*
Vishal Soni & *Birendra Singh

INTRODUCTION

In the past there have been many instances of overlap of the application of different
regulators and there legislations thereof and in many situations under many provisions
both the legislations have a “non-obstante clause” in it. 81 The main rationale out of it as
some time the legislature assumed to aware of the existence of the laws and the
circumstances in that manner with the scenario and with the enactment of the non-
obstante clause in the legislation shows the intention on their part on the application of
any act.82 Likewise, in an instance of an anticompetitive agreement in the electricity
sector, here if any dispute arose there would be a conflict between the CERC and CCI
upto an extent. So here, CCI’s jurisdiction would be overridden by CERC as a logical
corollary would be having a sector specific competition regulator and a general

**
Student, Gujarat National Law University, Gandhinagar.
**
Student, Symbiosis Law University, Noida.
81
R. B. Jain, The Craft Of Political Graft In India: An Analysis Of Major Scams, Indian Journal Of Political
Science, Vo L. 55, No. 4, Oct 1994.
82
Bscal, Malhotra Committee Recommendations, Business Standard, April 22, 1998, Available At:
Http://Www.Business-Standard.Com/Article/Specials/Malhotra-Committee-
Recommendations198042201099_1.Html.

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competition regulator for the left space. 83 But jurisdiction of CCI can’t be overlapped
every time, as there is almost every specific legislature of every regulator present here.
So, it would mean that the jurisdiction of CCI would be inconsistent in toto every time.
So such issues would be focused up here in this article with a major focus on SEBI &
CCI.84

SECTOR SPECIFIC REGULATOR & GENERAL ANTITRUST REGULATIONS

A. SEBI V. CCI

A
ny overlapping with these two regulators can be a hotbed of disputes, being
most of the two important regulatory authorities whose approval is
necessary for any merger or acquisition or amalgamation to procreate in
India.85

Like what has turned out to be in the merger of Jet-Etihad where CCI had given the
approval, though it didn’t need per se as they just acquired 24% of the shares of Jet
which didn’t meet the threshold as mentioned in Section 5 of Act of 2002. 86 Similarly,
there has been always a conflict on structuring the definition of ‘Control’, which is these
scenario more based on the judicial decisions and the discretion of regulators only. 87
The relevance of this concept to competition regime, ‘Control’ is defined under the
explanation clause of Section 5 of the Act and reads “Controlling the affairs or

83
Umakanth Varottil, Investment Agreements In India: Is There An "Option"?,Nujs Law Review, Vol. 4,
2011.
84
Vidya Krishnan, Sun Pharma-Ra.Nbaxy Deal In Cci Crosshairs, Livemint , July 29, 2014. Available
At:Http://Www.Livemint.Com/ Companies/Pwftv Xqaz0vojwb 8gzw Edk/Sun -Pharma Ranba Xy-
Deal-In-Ccicrosshairs.Html?Utm_Source=Copy; Holcim- Lafarge Merger And Pvr- Dlf Utilities Limited.
85
Sebi Document Number Cfd/Dcr/To/ Ow/25627/ 2012.
86
Section 5, Competition Act, 2002.
87
Jet-Etihad Deal: Sebi Seeking Further Clarity From Cci, Finance And Civil Aviation Ministries , Business
Today, March 12, 2014. Available At: Http://Businesstoday.Intoday.In/Story/Jet-Etihad-Deal-In -Sebi-
Airpocket/1/204196.Html.

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management” by one or more ‘enterprises’ or ‘groups’, either jointly or singly, over

another enterprise or group.88 This concept becomes relevant especially because
acquisition of control, amongst others like shares, voting rights and assets, acts as an
automatic trigger to the mandatory notification requirement of the CCI. The decision of
CCI in the case of Jet-Etihad lowered control acquisition drastically. Even etihad was
given a right to appoint just 2 out of 12 director present on Board.89

The inter-regulatory analysis under the segment seeks to recognize and thereby redress
a common misconception that prevails amongst the regulators in interpretating
different definitions of there terms, instead of agreeing on the interpretation of anyone
of them and that too quite uncertain and inconsistent. 90

Similarly, ambiguity arises with both of these regulators internally as well. 91 So with
regard to the question that whether acquiring of affirmative and veto rights under the
takeover code can be attributed as ‘control’. So as per the decision of Rhodia S.A. v.
SEBI92 where court came to the conclusion that transferring of rights can constitute
control. But on the similar note, in the case of Sandip Save v. SEBI 93 acquisition of veto
rights by IDBI was held as not amounting to control. But, while comparing these stances
CCI which also does not consider the entire affirmative rights good enough to tinker
with the control equation.94

Secondly, For SEBI to initiate merger analysis, actual shift of control is pre-requisite, any
control in future does not qualify as control as what the matter was in Reliance

88
Kanika Chaudhary & Nidhi Singh, Skies Over Control, Luthra & Luthra Law Offices. Available At:
Http://Www.Luthra.Com/Admin/Article_Images/Skies -Under-Control.Pdf.
89
Financial Sector Legislative Reforms Committee, Ministry Of Finance, Government Of India. Available
At: Http://Finmin.Nic.In/Fslrc/ Fslrc_Inde X.Asp.
90
Sebo Order In The Matter Of Monotype India Limited, Document Number Wtm/Ps/22/Cfd/July/
2014.
91
Kritika Sethi & Akshita Amit, Overlapping Jurisdictions Of Regulators In India: A Never Ending
Battle?, Http://Www.Iclr.In/Assets/Pdf/Iclr%20issue%202%20(Kritika%20sethi%20&%20akshita
%20amit).Pdf.
92
Rhodia S.A. V. Sebi, (2001) 45 Cla 422.
93
Sandip Save V. Sebi, 2003 41 Scl 47 Sat.
94
Raghuram Rajan, Financial Sector Legislative Reforms Committee Report (Fslrc) – What To Do And
When?, Available At: Http://Www.Rbi.Org.In/Scripts/Bs_Speechesvie W.Asp X?Id=900.

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industries subscription of TV18 group’s convertible debentures, where SEBI decreed

that merger control would only be invoked only when the conversion actually happens
and not when the convertible security is acquired. 95 Under the competition regime,
mere ability to control an undertaking in future is enough for control to exist and actual
control in that moment isn’t a prerequisite. 96 Therefore, under CCI control can be
understood to be acquired from the time investment is made into the convertible
security, and not deferred till the actual exercise of conversion right.97

Moreover, Section 11(e) and (h) of the SEBI Act, 1992 98 mandates SEBI to prohibit
fraudulent and unfair trade practice and regulate the substantial acquisition of shares
and takeover of companies in the sector. Moreover, Section 3(j)(ii) of SEBI (Substantial
Acquisition of Shares and takeovers) Regulations, 1997 99 outlines the procedure which
SEBI expects the listed firms to expect. SEBI, thus underneath all these provisions such
mergers, and there is an overlap of jurisdiction with that of CCI. The Harshad Mehta
Scam, the Ketan Parikh scam etc showed lacunae in the law and, accordingly, SEBI were
given more preference to prosecute such happenings in the future. 100

B. CCI V. TRAI

Post 1997, a new regulatory authority was established with an aim to protect the
interests of the investors and consumers, and to regulate the telecommunication
industry in the country by enacting Telecom Regulatory Act, 1997. 101 In the recent case
of Consumer Online foundation v. Tata Sky Ltd. & Ors. 102, where Dish TV submitted

95
David Boies (1977) „Public Control Of Business‟, Little Brown.
96
Cuts International, Harmonising Regulatory Conflicts, Evolving A Cooperative Regime To Address
Conflicts Arising From Jurisdictional Overlaps Between Competition & Sector Regulatory Auhtorities,
Iica, Newdelhi, Http://Oldwebsite.Iica.In/Images/Harmonising%20regulatory%20conflicts.Pdf.
97
Dti Report, Concurrent Competition Powers In Sectorial Regulation, Urn06/1244, May 2006.
98
Section 11, Sebi Act, 1992.
99
Section 3(J)(Ii) Of Sebi (Substantial Acquisition Of Shares And Takeovers) Regulations, 1997.
100
Ashishsinha, Cci Eases Compliance Needs For M&A Deals, The Financial Express, April 6, 2013.
Available At: Http://Www.Financialexpress.Com/News/Cci-Eases-Compliance-Needs-For-M-A-
Deals/1098432.
101
Preamble, Telecom Regulatory Act, 1997.
102
Consumer Online Foundation V. Tata Sky Ltd. & Ors., 2011 Scc Online Cci 12 : [2011] Cci 11.

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that the CCI could not claim jurisdiction over this matter as TRAI and TDSAT were
already vested with the jurisdiction related to telecom industry including broadcasting
and cable TV services. CCI held that any matter raises competition concerns would fall
within the purview of the 2002 act.103 Moreover, under section 11(1) (h) of TRAI Act,
1997104 TRAI has powers to facilitate efficiency in providing telecommunication services
so as to facilitate growth in such services with the objective to promote a level playing
field and fair competition which was one of the objective of CCI which again potentially
overlap with the jurisdiction of CCI and prescribed under its act.105

C. CCI V. CERC

In 2003, with the enactment of Electricity Act, a Central Electricity Regulatory

Commission (CERC) as a regulatory authority has been established which was
entrusted with the task of maintaining a competitive environment, preventing anti-
competitive agreements in the electricity sector which is a clear overlap with the
jurisdiction of CCI.106 Moreover, under Section 174107 of the act also contains a non-
obstante clause which gives this act an over-ridding effect over any other legislation
which is in derogation of the Act. Similarly, Section 60 of Competition Act, 2002 also
provides a non-obstante clause108 and a non-derogation clause under Section 62 of the
Act.109

One of the major examples of overlap in Jurisdiction in the electric Sector is when CCI
found out that the BSES Rajdhani, BSES Yamuna Power and North Delhi Power Station

103
Seems Sharma, Cci-Project On Sector Regulators & Competition Law,
Http://Citeseerx.Ist.Psu.Edu/Viewdoc/Download?Doi=10.1.1.398.5696&Rep=Rep1&Type=Pdf.
104
Section 11, Trai Act, 1997.
105
Schedule I Of The Combination Regulations. See Generally Provisions Relating To Combinations,
Competition Commission Of India. Available At:
Http://Www.Cci.Gov.In/Sites/Default/Files/Advocacy_Booklet_Document/Combination.Pdf.
106
Preamble, Electricity Act, 2003.
107
Section 174, Electricity Act, 2003.
108
Section 60, Competition Act, 2002.
109
Section 62, Competition Act, 2002.

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were abusing its dominant status when they distributed faulty meters. 110 The CCI was
not able to take this matter into proper hands so it believed that the jurisdiction and
powers were vested under the Electricity Act, 2003 only. This not only shows upon the
scrutiny upon such enactments which broadened the horizons and scope of these
bodies but also their adjudicatory capabilities it its entirety that whether or not it is
destroying the common persons practice or not.111

Also, this issue has also been conflicted in the case of Shri Neeraj Malhotra, Advocate v.
North Delhi Power Ltd & Ors112 where Discom has argued before CCI that only CERC
has jurisdiction under electricity act, 2002. But CCI concluded that matters related to the
anti-competitive behavior including abuse of dominant position fall within the
jurisdiction of CCI.113

ENCOUNTERED PROBLEMS

Despite certain steps, range of problems can be attributed to this over inclusive reading
and faulty interpretation of different regulators:

Firstly¸ delay in the process, as the transaction clears the threshold it stands suspended
until the grant of CCI within 210 calendar days which is dual phased process. This
transaction can also be delayed if CCI is of the opinion that the transaction has the
potential to create an appreciable adverse effect on competition.114

Secondly, uncertainty in the provisions of these regulators may deter foreign entities
from investing in the marker.115 As without any definite rules among these CCI and
110
Kritika Sethi & Akshita Amit, Overlapping Jurisdictions Of Regulators In India: A Never Ending
Battle?, Http://Www.Iclr.In/Assets/Pdf/Iclr%20issue%202%20(Kritika%20sethi%20&%20akshita
%20amit).Pdf.
111
William J. Baumol “On The Proper Cost Test For Natural Monopoly In The Multi Product Industry”,
American Economic Review, Vol. 67, (1977, P. 809).
112
Shri Neeraj Malhotra, Advocate V. North Delhi Power Ltd & Ors, (2011) Scc 4 Cci.
113
Fslrc Report, At 131-133.
114
Jitheshtilak, Regulating M&As An Insight Into Competition Laws In India, International Business
Lawyer, 2004.
115
Combination Registration No.C-2014/ 02/ 153, Available At:
Http://Www.Cci.Gov.In/May2011/Orderofcommission/Combinationorders/C-2014-02-153r.Pdf.

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these regulators are with excessive discretion power to take suo-moto cognizance of any
transaction. Likewise what had been the case in the Jet-Etihad case. As regulators also
influenced by the decision of other regulators, as what SEBI did a new fresh
investigation has to be initiated.116

Thirdly¸ imposition of hefty interest and penalties, owing to mismatch of timelines by

these ongoing investigation due to these uncertain guidelines and provisions like what
has been imposed on British retail giant Tesco and travel site Thomas cook for delay
combination filing as investors need to pay fines and interest for SEBI when CCI took
more time to review the transaction and vice-versa.117

APPROACH TO MINIMIZE OVERLAPPING: INTERNATIONAL JURISDICTION

PERSPECTIVES

India being a home to worldwide jurisdiction with multiple regulations, such kind of
Diaspora could be resolved with international experiences which shows that the
interaction among the sector and competition regulators can be managed through
various institional approached where either primacy to be given to sectoral regulators
with the competition law or with the concurrent one having both competition law and
industry which posses equal jurisdiction, through consultative approach 118.

116
1shweta Shroff Chopra, Sangeetha Mugunthan, Merger Control In India: Overview, Practical Law,
June 2014.
117
Pti, Cci Imposes Fine On Thomas Cook, Sterling Holidays, The Hindu, June 29, 2014. Available At:
Http://Www.Thehindu.Com/Business/Industry/Cci-Imposes-Fine-On-Thomas-Cook-
Sterlingholidays/Article6158129.Ece.
118
Public M&As In India: Sast Regulation Dissected A Detailed Analysis Of Securities And Exchange
Board Of India, Nishith Desai & Associates. Available At:
Http://Www.Nishithdesai.Com/Fileadmin/User_Upload/Pdfs/Research%20papers/Public% 20m%
26as%20in%20in Dia%20-% 20takeover% 20code%20dissected.Pdf.

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Highlighting the approaches approved by various developed nations in order to

minimize the conflict of overlapping jurisdiction.

A. BRAZIL

The dispute revolves around the concurrent jurisdiction of CADE & ANATEL.
Resolution 76/1998 approves norm 4/98 and establishes that ANATEL examines
merger documents first and CADE issues final approval. 119 ANATEL would be the only
agency with such authority to investigate merger cases, replacing SEAE & SDE in this
case, where SEAE & SDE only issue opinions if specifically requested by a
commissioner from CADE.120

Recently in April 2012, Central Bank vide Circular No. 3590 inaugurating a new phase
in relations with the CADE which highlights both agents have the legal competence to
analyze and judge the effects of merger in financial sector. 121 This position of Central
bank formalizes an institutional arrangement of concurrent jurisdiction in which the
competition authority and regulatory agency exercise power over the competition
laws.122

B. SPAIN

The Spanish Competition Act was amended by the Sustainable Competition Act which
has introduced some rules of coordination to minimize the potential for actual conflicts
of competence between sectoral and competition authority. Section 17 attempts to make
coordination between competition authority and sector regulators. The amended act

119
Competition Act- An Overview, Nishith Desai & Associates. Available At:
Http://Www.Nishithdesai.Com/Fileadmin/User_Upload/Pdfs/Research
%20articles/The_Competition_Act_Overvie W.Pdf.
120
Warrick Smith And David Gray, “Regulatory Institutions For Utilities And Competition, International
Experiences” Unpublished, World Bank Paper, P. 27, (1998).
121
Oecd, Organisation For Economic Co-Operation And Development, Peer Review Of Brazil's
Competition Law And Policy,Daf/Comp(2005)28, Paris, 2005.
122
Relaxation Under Combination Regulations, Available At
Http://Www.Deloitte.Com/Assets/Dcomindia/Local%20assets/Documents/Regulatory
%20alerts/2013/ Ra-03-2013.Pdf.

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also confers on the sector regulators at consultative and advisory responsibilities in

merger control matters. However, this framework did not sufficiently address the
overlap conflicts and the government announced a proposal for merger of regulators
into one body i.e. National Commission of the Markets and Competition (NCMC)
where the preliminary draft establishes that the new body will combine the functions
related to the proper functioning of markets and sectors. Article 17.3 of the Competition
Act contains a general co-ordination mechanism between the competition authority and
the sector regime.123

C. SOUTH AFRICA

In order to ensure the applicability of competition act and to reduce the concurrency, a
legislator has introduced the amendment to competition act, repealing section 67(9) of
the Electronic Communication Act.124 Section 3 of the competition act has amended to
provide for concurrent jurisdiction.125 This move by the government is still not
implemented in effective manner, so the specific solution has still pending upon the
government.126

D. SOUTH KOREA

Reader might wonder that why author is drawing inference from the Country like
South Korea but it is pertinent to mention that South Korea is increasingly curtailing the
exemptions to sectoral regulators. Article 63 of the Monopoly Regulation and Fair Trade
Act (MRFTA) provides for mandatory consultation which requires a regulatory
authority to consult with or notify the KFTC when intending to propose anticompetitive
legislation or provisions.127
123
Kritika Sethi & Akshita Amit, Overlapping Jurisdictions Of Regulators In India: A Never Ending
Battle?, Http://Www.Iclr.In/Assets/Pdf/Iclr%20issue%202%20(Kritika%20sethi%20&%20akshita
%20amit).Pdf.
124
Section 67(9), Electronic Communication Act.
125
Competition Act 89 Of 1998 (As Amended), Pp. 3.
126
The Competition Commission Of South Africa Vs. Telkom Sa And The Competition Tribunal Of South
Africa, Sca Case Number 623/2008.
127
Article 63 Of The Monopoly Regulation And Fair Trade Act (Mrfta).

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However, there still remains ambiguity regarding whether the opinion/advice of KFTC
after consultation on such modification aspects are binding or not.128

RECOMMENDATIONS

H
ighlighting the abovementioned approaches adopted by various developed
nations in order to address regulatory overlap conflicts. India also need to
adopt such terms to tailor the best approach that would suit the needs
while adopting the aspects from best practice globally. 129 It seems that best policy to
adopt by India is also a type of concurrent framework which involves continuous
mutual mandatory cooperation/consultations among the sectors and competitive
authority by amending the respective provisions of governing legislation which has
been done in other countries to demarcate the roles performed by each regulator. 130

CLARIFYING JURISDICTIONAL ROLES

It is pertinent to highlight that in India all the regulators are enacted to sustain
competition in whole economy in India with the difference of just a general market and
a particular economy. Likewise, Section 18 of the Competition Act entrusts the CCI with
the duty to sustain competition in economy, notwithstanding the aspect related to
different regulators pushing for exemption from CCI over merger in their domain. 131

Despite such reforms being introduced in the times, problems continue in some of the
sectoral laws and policies. The Central Electricity Regulatory Commission passed
regulations in 2012 namely, Prevention of Adverse Effect on Competition Regulations,

128
William J. Baumol “On The Proper Cost Test For Natural Monopoly In The Multi Product Industry”,
American Economic Review.
129
Www.Cuts-Ccier.Org/Articlesjan10-Cci_Has_A_Role_To_Play_In_Bank_Mergers.Htm.
130
Www.Business-Standard.Com/India/News/Cci-Ambit-To-Shrink-After-Banking-Law/472830/.
131
Kritika Sethi & Akshita Amit, Overlapping Jurisdictions Of Regulators In India: A Never Ending
Battle?, Http://Www.Iclr.In/Assets/Pdf/Iclr%20issue%202%20(Kritika%20sethi%20&%20akshita
%20amit).Pdf.

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2012132. In response to this, Shri Ashok Chawla, Chairman, CCI wrote a letter to the
Prime Minister condemning such a move on part of the sector regulator. These
provisions will not only create duplication and jurisdictional overlaps but also create
regulatory uncertainty and result in forum shopping amongst the consumers not to
mention wastage of public resources.133 Aside from this the Electricity Act, while giving
overriding powers to the Consumer Protection Act in matters of conflicts between the
two statutes under Section 173134, has kept core competition issues of market dominance
which also serves to protect consumer welfare, within the ambit of the sector regulator
under Section 60 of the Electricity Act 135. On the other hand, a good statutory
application of this principle can be witnessed in the Airport Economic Regulatory
Authority (AERA) Act which has not discriminated between the Consumer Protection
Act and the Competition Act in granting exemptions from the purview of the
jurisdiction of the AERA Act.136

TOWARDS A MANDATORY COOPERATIVE FRAMEWORK

In light of such complexities Ministry of Corporate Affairs recently set up a committee

to draft a National Competition Policy for India & allied matters 137 where it has been
highlighted that in order for such a framework to work following elements are
necessary:

(a) Designing a framework mandating cooperation between the CCI and sector
specific regulators.

132
Prevention Of Adverse Effect On Competition Regulations, 2012
Http://Www.Cercind.Gov.In/2012/Draft_Reg/Section-60-Explanatory-Memo.Pdf.
133
Cuts International, Harmonising Regulatory Conflicts, Evolving A Cooperative Regime To Address
Conflicts Arising From Jurisdictional Overlaps Between Competition & Sector Regulatory Auhtorities,
Iica, Newdelhi, Http://Oldwebsite.Iica.In/Images/Harmonising%20regulatory%20conflicts.Pdf.
134
Section 173, Consumer Protection Act, 2005.
135
Section 60, Electricity Act, 2003.
136
Preamble, Airport Economic Regulatory Authority Act, 2008.
137
Www.Mca.Gov.In/Ministry/Pdf/Revised_Draft_National_Competition_Policy_2011_17nov2011.Pdf.

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(b) Creation of an independent body to take over when conflicts arise between
the two regulators.

(c) Recognition of the role and competency of both the sector regulators and
competition authority.138

Recently in a matter where the dispute was between the Forward Markets Commission
& the Central Electricity Regulatory Commission on the issue of jurisdiction, it was
highlighted by the Bombay high court that a joint expert body should be constituted in
order to resolve such disputes.139 Such judgments highlight the importance of an
independent body to take over the conflict if any between the regulators. 140

CONCLUSION

A
n exploratory as well as normative insight of these regulators is very much
required to asses this seemingly uneasy interface between the two which is
quite evident from the legislative framework. The multiplicity of regulators
is a more comprehensive method of understanding each sector and aspect of a deal.
Allocating the jurisdiction of different sectors to different regulators leads to a holistic
coverage of that particular sector which at the same time entails securing approvals
from different sectors if such sectors jurisdiction is invoked in a particular transaction.

138
Http://Www.Cci.Gov.In/Sites/Default/Files/Speeches/Interface.Pdf?Download=1.
139
Www.Thehindubusinessline.Com/Industry-And-Economy/Article1165344.Ece.
140
Raghuram Rajan, Financial Sector Legislative Reforms Committee Report (Fslrc) – What To Do And
When?, Available At: Http://Www.Rbi.Org.In/Scripts/Bs_Speechesvie W.Asp X?Id=900.

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has aroused where both the legislation critically summaries both the things in one or the
other manner, so with the principles of interpretations skills it can be resolved.

A co-operation between the regulators as has been evidenced with regard to creeping
acquisitions makes the regulatory framework easier to manoeuvre without there being
an outcry for a unified regulator. Another step for the seamless integration of the
regulatory system is a co-ordinated set of fines whereby exemptions be granted to
market players if another regulatory agency is the cause for delay. This measure would
ease the already slow capital market process in India and thereby, ‘Make in India‘, the
flagship programme of Modi Sarkar a success. In conclusion, it is reiterated that the
current regime of law had various broad principles which merely promote vagueness,
which I effect hinders predictability and certainty, and serves a great injustice to
investors. Redressing these thus becomes need of the hour in order to make the regime
more investor friendly.

A BRIEF ANALYSIS OF ANTI DUMPING LAWS IN INDIA AND EU

*
Subham Dutta & Ananya Singh

INTRODUCTION

An anti-dumping duty is valid for a period of five years from the date of imposition,
It
unless revoked earlier.0 can be extended for a further period of five years through a

**
. Students, Symbiosis Law School, Noida
0
. Government Of India Ministry Of Finance (Department Of Revenue),Notificationno.3/2018-Customs
(Add)New Delhi,(23rd February,2018)Http://Www.Cbec.Gov.In/Resources//Htdocs-
Cbec/Customs/Cs- Act/Notifications/Notfns-2018/Cs-Add2018/Csadd03-2018.Pdf

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sunset or expiry review investigation conducted in accordance with Article 11.3 of the
World Trade Organization (WTO) Anti-dumping Agreement. 0 Such a review can be
initiated suo moto or on the basis of a duly substantiated request received from or on
behalf of the domestic industry.0

A sunset or expiry review must be initiated before termination of the anti-dumping

duty to determine whether the expiry of the duty would be likely to lead to
continuation or recurrence of dumping and injury. If the investigating authority
concludes that expiry of the duty is likely to lead to continuation or recurrence of

dumping and injury, it may extend the duty for a further period of five years. 0 4

India has initiated over 677 anti-dumping investigations since 1995 and has imposed
anti-dumping duties in over 500 investigations. 0 For most products investigated and
levied with an anti-dumping duty, India initiates a sunset review investigation
and carries out an examination on the likelihood of the continuation or
recurrence of dumping and injury in order to determine whether the anti-dumping
duty should be extended.

LEGAL SCENARIO IN INDIA

Anti-dumping investigations are regulated by the Directorate General of Anti-

dumping and Allied Duties, a division within the Ministry of Commerce, presided
over by an officer known as the designated authority. Section 9A(5) of the Customs

0
. S.S.Das,Sunsetreviewsproceduresandpracticesindia’sperspectives,Foreigntrade Directorate General Of
Antidumping &Allied Duties Govt. Of India
0
.Id
0
. Directorate General Of Anti-Dumping And Allied Duties,(12thmarch,2018)
0
. India reviews anti-Dumping Duty On Steel Wheels From China, The Economic Times (12thmarch,2018)
//Economic.Times.Indiatimes.Com/Articleshow/62915965.Cms?
Utm_Source=Contentofinterest&Utm_Medium=Text

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Tariff Act 19750, as well as Rule 23 of the Anti-dumping Rules 07 made there under, lay
down the provisions for conducting a sunset review.

Section 9A (5) of the Customs Tariff Act reads as follows:

"The anti-dumping duty imposed under this section shall, unless revoked earlier, cease to have
effect on the expiry of five years from the date of such imposition:

Provided that if the Central Government, in a review, is of the opinion that the cessation of such
duty is likely to lead to continuation or recurrence of dumping and injury, it may, from time to
time, extend the period of such imposition for a further period of five years and such further
period shall commence from the date of order of such extension:

Provided further that where a review initiated before the expiry of the aforesaid period of five
years has not come to a conclusion before such expiry, the anti-dumping duty may continue to
remain in force pending the outcome of such a review for a further period not exceeding one
year."

Rule 23 of the Anti-dumping Rules reads as follows:

"(1) Any anti-dumping duty imposed under the provision of section 9A of the Act, shall remain
in force, so long as and to the extent necessary, to counteract dumping, which is causing injury.

(1A) The designated authority shall review the need for the continued imposition of any anti-
dumping duty, where warranted, on its own initiative or upon request by any interested
party who submits positive information substantiating the need for such review, and a
reasonable period of time has elapsed since the imposition of the definitive anti-dumping
duty and upon such review, the designated authority shall recommend to the Central
Government for its withdrawal, where it comes to a conclusion that the injury to the

0
. Thecustomstariffact,1975,No.51,Actsofparliament,1975,Section9(5)(A)
0
Customstariff(Identification,Assessmentandcollectionofanti-Dumpingdutyondumpedarticlesandfor
Determinationofinjury)Rules,1995,Rule23

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domestic industry is not likely to continue or recur, if the said anti-dumping duty is removed or
varied and is therefore no longer warranted.

(1B) Notwithstanding anything contained in sub-rule (1) or (1A), any definitive

antidumping duty levied under the Act, shall be effective for a period not exceeding five years
from the date of its imposition, unless the designated authority comes to a conclusion, on
a review initiated before that period on its own initiative or upon a duly substantiated request
made by or on behalf of the domestic industry, within a reasonable period of time prior to
the expiry of that period, that the expiry of the said anti-dumping duty is likely to lead to
continuation or recurrence of dumping and injury to the domestic industry.

(2) Any review initiated under sub-rule (1) shall be concluded within a period not
exceeding twelve months from the date of initiation of such review.

(3) The provisions of rules 6, 7, 8, 9/10, 11, 16, 17, 18, 19, and 20 shall be mutatis mutandis
applicable in the case of review."

For a sunset review, the designated authority must examine the likelihood of either the
continuation or recurrence of dumping and injury. 0 The methodology to be adopted
for such an examination has not been prescribed by the WTO or under Indian law. The
designated authority is therefore empowered to examine whichever parameters it
deems relevant for a likelihood analysis, provided that it can justify its determinations
as a quasi-judicial body.0

0
.Government Of India Ministry Of Commerce & Industry Department Of Commerce (Directorate
General Of Anti-Dumping & Allied Duties) Notification New Delhi, (17th.March,2018) Final Findings
(Ssr) Subject: Sunsetanti-Dumping Review Investigation Sinthematterrelatingtoimports Of Graphite
Electrodes From China [Prno.15/7/2007-Dgad]

0
. Study On Antidumping And Competition Law,Competition Commission Of India(19thmarch,2018)
Www.Cci.Gov.In/Sites/Default/Files/Antidumping_20090420151657.Pdf

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In a typical case0, the designated authority will examine the various parameters for
which information for the notified period is collected. This 'notified period' is defined
as the period of investigation for which the designated authority determines the
dumping margin and injury margin0, as well as other parameters such as:

1. the free disposable capacity of exporters;

2. capacity additions or expansions;

3. dumping to third countries to determine the likelihood of dumping and injury;

4. any other parameters that the designated authority deems fit.012

In addition, the designated authority will conduct an analysis of dumping and injury
for a further six-month period following the notified period. 0 This analysis usually
entails:

1. a dumping margin calculation;

2. an injury margin calculation; and

3. an analysis of whether the product under consideration is being dumped in

countries other than the subject country or that of the cooperating producer. 0

Since there is no prescribed practice for the determination of likelihood, the designated
authority can adopt any analysis that it deems fit for such a determination. However,

0
.Government Of India Ministry Of Commerce & Industry Department Of Commerce Directorate General
Of Anti- Dumping & Allied Duties,1stjune2012[F.N0.14/35/2010];See Also Ministry Of Commerce And
Industry, Directorate General Of Anti-Dumping And Allied Duties, Sunset Review Of Anti-Dumping
Duty On Nylon Filament Yarnimport,5th January2018[F.No.15/17/2016/Dgad]

0
. 11frequently Asked Questions,Directorate General Of Anti-Dumping And Allied Duties
(18thmarch,2018)
Www.Dgtr.Gov.In/Faq

0
.Id
0
.Id
0
.Id

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this is subject to the basic principles of natural justice (as a quasi-judicial body, the
designated authority cannot make determinations arbitrarily). 0

The due process and essential principles of an anti-dumping investigation must

be preserved even in a sunset review. To buttress this responsibility, the
designated authority must follow the provisions of Rules 10, 11 and 17, as well as
Annexure I, II and III of the Anti-dumping Rules 0, to arrive at the margins of dumping
and injury for the exporters or producers from the subject countries and the domestic
industry on the basis of the data called for the period of investigation. By the operation
of Rule 23(3), the designated authority is also required to follow the above
provisions mutatis mutandis (i.e., with the necessary changes) in reviews.

On most of the critical issues concerning anti-dumping, India emulates the practice of
the EU authorities in its findings. However, in the case of anti-dumping investigations
carried out by the EU authorities, particularly with regard to sunset reviews (termed
'expiry reviews' in the European Union), the law permits for a recommendation of
either continuation or repeal of the anti-dumping measures already in force. No
variance or amendment in the level of duties can be recommended for expiry reviews
under Article 11(2) of the EU Anti-dumping Regulation (1225/2009) 0, which sets out
the protection against dumped imports from countries that are not EU member states.

On the other hand, in an interim review conducted pursuant to Article 11(3) of the EU
Anti-dumping Regulation, the anti-dumping measure can be repealed, maintained or
amended.0 This dichotomy arises due to the language used in Article 11(6), which
makes a specific legislative exclusion of the power to amend or modify the anti-

0
. 15das,Supranote2
0
. 16act,Supranote7
0
.Council Regulation (Ec)No1225/2009 Of 30 November 2009 ,Protection Against Dumped Imports From
Countrie Snotmembers Of Theeuropean Community,Official Journal Of Theeuropean Union L 343/51
(2009)

0
.Id. Article 11 (3)

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dumping measures in the case of an expiry review, while allowing such an amendment
or modification in an interim review:

"Article 11 (6): Reviews pursuant to this Article shall be initiated by the Commission after
consultation of the Advisory Committee. Where warranted by reviews, measures shall be
repealed or maintained pursuant to paragraph 2, or repealed, maintained or amended pursuant
to paragraphs 3 and 4, by the Community institution responsible for their introduction. Where
measures are repealed for individual exporters, but not for the country as a whole, such
exporters shall remain subject to the proceeding and may, automatically, be reinvestigated in
any subsequent review carried out for that country pursuant to this Article."0

Therefore, EU authorities cannot modify anti-dumping measures in expiry reviews and

are limited merely to extending or repealing the anti-dumping measure.

When the EU law is compared with sunset reviews conducted by the designated
authority under Indian anti-dumping law, it becomes apparent that there is no
restriction on the designated authority or on the central government that
prevents it from modifying or amending the anti-dumping duty. In a sunset review
investigation, the designated authority issues the final findings recommending the
specific rate or quantum of anti-dumping duty applicable to the exports following the
lesser duty rule (dumping margin or injury margin, whichever is lower), in conformity
with Rule 17 of the Anti-dumping Rules, on the basis of examination of the information
for the period of investigation.0 Following the recommendation made under Rule
17, the central government will impose the anti-dumping duty in terms of Rule 18 and
Rule 19 of the Anti-dumping Rules by issuing a customs notification. A review will
also follow the same procedures prescribed for an original investigation, to the extent
that they apply.

0
.Id. Article 11 (6)
0
. Overview Of Trade Remedies,The International Trade Law Review-Edition3 (19thmarch,2018)
Https://Thelawreviews.Co.Uk/Chapter/1148539/India

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As mentioned above, Rules 10, 11 and 17 apply, mutatis mutandis, to sunset reviews
through the operation of Rules 23(1B) and 23(3) of the Anti-dumping Rules. Rule 17(3)
clearly requires the determination of an individual margin of dumping for each known
exporter or producer. When recommending continuing ongoing or existing duties and
discarding the lower dumping or injury margins determined for the period of review,
the designated authority cannot circumvent these requirements merely by continuing
the anti-dumping duty at the rates or quantum under the original investigation and
under the pretext of practice, effectively ignoring the information obtained during the

notified period of investigation.0 By recommending a default levy of the original duty,

the designated authority is denying the cooperating producers and exporters their
individual margins, which (under Rules 10 and 11) must be based on their channels of
export and margins determined thereto for the period of investigation.

CONCLUSION

In view of the recent shift in the practice of the designated authority,

cooperating foreign producers and exporters may be required to provide a
steadily increasing amount of information beyond the initial filing of the

exporters' questionnaire.022However, no amendment has been made to this effect in

the governing law and the restrictions imposed on the designated authority by the

mutatis mutandis rule under Rule 23(3) remain. 23 Hence, the designated authority's
obligation to grant an individual margin has not been diluted and cooperating
producers remain entitled to receive a specific rate of anti-dumping duty, based on
their own specific margins according to data submitted for the period of investigation
pursuant to Rules 10 and 11.

0
. 21das,Supranote2
0
. Unctad, Negotiating Anti-Dumping And Setting Priorities Among Outstanding Implementation Issues
In The Post-Doha Scenario: A First Examination In The Light Of Recent Practice And Dsu Jurisprudence,
(2002

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In light of the above, it is evident that the procedure for sunset reviews in India
is constantly evolving. Given that there is no framework for likelihood examinations in
either WTO or Indian law, such evolving practice may be inevitable. Variance in the
likelihood examination often arises out of the differences in the facts and circumstances
of each case, which are bound to differ. However, the recent change in procedure is
contrary to the letter of the Indian law and violates the spirit of anti-dumping
agreements.

144