Malicious Prosecution - International Journal For Legal Research and Analysis

INTERNATIONAL
JOURNAL FOR LEGAL

RESEARCH & ANALYSIS
(ISBN 978-81-948082-
1-3)
VOLUME 1 ISSUE 3
(May 2021)
Email –
editor@ijlra.com
Website – www.ijlra.com
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Volume 1 Issue 3| May 2021 ISSN: 2582-6433
DISCLAIMER
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Copyright © International Journal for Legal Research & Analysis
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EDITORIAL TEAM
EDITORS
Ms. Ezhiloviya S.P.
Nalsar Passout
Ms. Priya Singh

West Bengal National University of Juridical Science
Mr. Ritesh Kumar

Nalsar Passout
Mrs. Pooja Kothari

Practicing Advocate
Dr. Shweta Dhand

Assistant Professor
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ABOUT US
INTERNATIONAL JOURNAL FOR LEGAL RESEARCH & ANLAYSIS ISBN
978-81-948082-1-3 is an Online Journal is Quarterly, Peer Review, Academic
Journal, Published online, that seeks to provide an interactive platform for the
publication of Short Articles, Long Articles, Book Review, Case Comments,
Research Papers, Essay in the field of Law & Multidisciplinary issue. Our aim is to
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We are eager to become a highly cited academic publication, through quality
contributions from students, academics, professionals from the industry, the bar
and the bench. INTERNATIONAL JOURNAL FOR LEGAL RESEARCH &
ANALYSIS ISBN
978-81-948082-1-3 welcomes contributions from all legal branches, as long as the
work is original, unpublished and is in consonance with the submission guidelines.
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INDEX
S.No Name Title Page no.
1 Anubhav Singh & Copyright in the digital world: Issues and a Way 5
Yashi Singh Forward
2 Shrey sahai Social base of political parties with their voters having 22
shifted their allegiance to different political parties
3 Chandi Prasad A Study On The Legal Aspects Of The Inter-State 37
Khamari & Anjana Migration Of Labour (Dadan) With Special Reference
Tripathy To Balangir District, Odisha
4 Prachi Shekhawat Abrogation Of Constitution: Transition From “Judicial 47

Activism” To “Overreach”
5 Katyayani Jha Role Of Asean Countries In The Paris Agreement 60
6 Dhruv Mehta Children Should Be Allowed To Play Video Games For 71

An Hour On A Daily Basis
7 Rachit Sharma Malicious Prosecution 79
8 Anuroopa D The Wto Dispute Settlement Mechanism- An Analysis 88
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COPYRIGHT IN THE DIGITAL WORLD: ISSUES AND A WAY FORWARD
AUTHOR: ANUBHAV SINGH

COLLEGE: MAHARASHTRA NATIONAL LAW UNIVERSITY MUMBAI
COURSE: B.A.,LL.B.(Hons.)
YEAR: 2ND YEAR
CO-AUTHOR- YASHI SINGH

COLLEGE: MAHARASHTRA NATIONAL LAW UNIVERSITY MUMBAI
COURSE: B.A.,LL.B.(Hons.)
YEAR: 2ND YEAR
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TABLE OF CONTENTS
ABSTRACT ............................................................................................... 7
INTRODUCTION ...................................................................................... 8
1.1 AIM: 9
1.2 RESEARCH METHODOLOGY: 9
1.3. RESEARCH HYPOTHESIS: 10
THE COPYRIGHT LAWS AND THE DATA BASES........................................ 10

2.1 WHAT IS DATABASE? 10
2.2 COPYRIGHT LAWS AND DATABASES 11
2.3 PROTECTING THE DATABASE IN INDIA 12
INFRINGEMENT OF COPYRIGHT ON THE INTERNET ................................ 13

3.1. FRAMING: 13
3.2. CACHING 13
3.3. DISPLAYING PUBLICALY AND THE RIGHTS OF UPLOADING AND POSTING ON

THE INTERNET 14
JURISDICTION PROVIDED UNDER THE COPYRIHT ACT ............................ 15

RIGHT TO REPRODUCTION OF DIGITAL WORK ....................................... 16
6.1. CHARACTERISTIC OF COPYRIGHT AMENDMENT ACT, 2012 AND RULES DEFINED
17
CONCLUSION ........................................................................................ 18
BIBLIOGRAPHY ...................................................................................... 19
7.1. BOOKS: 19
7.2. CASES: 19
7.3 JOURNAL ARTICLES: 19
7.4 RESEARCH ARTICLES: 19
7.5 STATUTES: 20
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ABSTRACT
Internet plays a vital role in one’s day to day life. In nowadays life for someone to reach out the world
with better outstretch or influence. Individuals are sharing their authentic work on internet i.e., on
digital platform making it convenient and obtainable to the majority of people out there in the world.
Law of Copy right has its historical significance in order to safeguard and shield the originality of the
work. Internet is a massive and immense platform for one to present his or her work digitally, and it
also becomes easy for the work to be duplicated on the same platform. Copy right laws are mainly
responsible to prevent the work of creator to not to be copied or duplicated. Since, the times have
changed and with changing times the vicinity of the technology has only increased and with it the
approach of people to others through digital platforms mainly internet has also gained a huge jump.
Now when there is a threat to originality of the content created by the creator with complete authentic
approach, this is the part where Copyright laws comes in the picture. Copy rights laws have been
gaining lot of significance in today’s world since the reach to their intellectual property by others have
also increased. It is of grave concern if noticed that strangers controlling your work, your content,
using it for their gain and are getting away with it. In order to prevent such situation, the Copy Right
Law in the Digital world is important. Hence, with this the researcher would enlighten that this
research paper will solely concentrate on the problems and issues faced by the copy right laws on the
digital platform, and how the laws have been changing with the time being, and what are the
significant steps required to as in order to enhance the security and protection of the content online or
on digital platforms by the Copy Right Law in the country.
KEYWORDS: COPY RIGHT LAWS, PROBLEMS AND ISSUES, DIGITAL PLATFORM, CHANGES IN
THE LAWS.
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INTRODUCTION
With the world changing around us, it also includes the social life of individuals. With the change in
one social life results in change of various laws related ton ones’ rights and life too. Every day there’s
new technology being introduced to the world which has become a potential threat to the Copyright
Laws. The digital world for instance has an immense impact on the Copyright laws and demonstrates
on the fact the content and work on the internet is to be protected, the creation’s originality shouldn’t
be jeopardized under the Copyrights law. The industry consequently has put every new invention to
its advantage in terms of creating newer forms of exploitation of art, widening markets and increasing
profits1. There are many challenges faced by the Copyrights law since with the technology changing
the internet is more available to the world than it ever was. And hence this is the reason the data on
internet can easily be target for manipulation, changes and duplication. By enabling the making of
perfect copies of copyrighted works for little cost, digital technology threatens to undermine the
distribution systems and increase unauthorized use of copyright works 2. The issue rises with the
concept that what is the definition of Internet defined by Copyright laws, and how is it suppose to
protect data on the digital platform. Hence, there is no specific definition provided under the
Copyright Designs and Patents Act 1988, it doesn’t say anything concrete about the Internet or the
digital platform. There are many questions present regarding the explanation of the internet under the
Act, but it isn’t answered. The advancement of the digital environment has been huge challenge to the
copyright laws. The growth of technology has given rise to concepts like computer programs,
database, layout, etc. In the digital era, copyright is a key issue in Intellectual Property Rights.3
Copyright is an essential asset for the Intellectual property rights when digital platform and data on the
internet is considered. The main responsibility of the Copyright laws is to protect the creativity and
the labour of the brain over the content which is used to make the content authentic. Once the work is
published on the digital platform it becomes easier for that content to be replicated or to be saved by
someone else making it harder for the copyright laws to protect the content from being threatened.
There are many characteristics that can be considered once the copyright laws over the data is
imposed. For instance, the issues of the data being reproduced, the data being easily distributed on a
global platform or the data being easily saved by many on the digital platform. Hence, this proves that
there is a dire need for copyright laws ton advance in its own field including the digital platform too.
There should be special provisions or the amendments made in order to aid the copyright to protect
the data on internet potentially, since at present the laws are not well equipped to provide any sense of
1
Mittal, R. (2006). From Printing Press to the Internet: The Stride of Copyright along with Technology, Intellectual
Property and Technology Law Journal, 1, 21-46.
2
WIPO. (1996). Basic Proposal for the Substantive Provisions of the Protection of Literary and Artistic Works to Be
Considered by the Diplomatic Conference. WIPO, Geneva
3
Copyright in Digital Era, http://www.rmlnlu.ac.in/webj/alok_kumar_yadav.pdf last seen 12/05/2021
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safety to the authentic works of the creators on the internet. Copy rights laws have been gaining lot of
significance in today’s world since the reach to their intellectual property by others have also
increased. It is of grave concern if noticed that strangers controlling your work, your content, using it
for their gain and are getting away with it. In order to prevent such situation, the Copy Right Law in
the Digital world is important. It completely depends on the desire of the creator to make his or her
work public, i.e., opening it to the public domain to read and use but not to entirely duplicate it.
Hence, with this the researcher would enlighten that this research paper will solely concentrate on the
problems and issues faced by the copy right laws on the digital platform, and how the laws have been
changing with the time being, and what are the significant steps required to ass in order to enhance the
security and protection of the content online or on digital platforms by the Copy Right Law in the
country.
1.1 AIM:
● To analyse whether there are equipped provisions under the Copyright laws in order to address
issues related to the work which is being exploited on the digital platform.
● To analyse if there are any special provisions under the statute is provided for the efficiency of
the Copyright laws to work.
1.2 RESEARCH METHODOLOGY:
The study has relied on the secondary method of research, also known as armchair research. The
secondary method of research is based on the analysis of secondary data. Secondary data is
information which has already been collected, compiled, and published by other researchers. This
study is based on authentic secondary data collected from various sources, such as books, research
papers, and online resources.
● In order to understand the concept of Copyright laws related to the digital world, the researcher
has referred to different online blogs, books, research essays and this helped the researcher to get
the basics clear.
● The researcher has referred to various digital and internet platform components in the laws, though
there is not much information provided for the same but the researcher has examined ample
amount of internet blogs and notes and articles in order to get a clearer picture regarding the
relation and issues faced by the copyrights in the digital world.
● Further, the researcher will try to establish and analyse the relation between the copyrights and the
digital environment and how various characteristics impacts the relation between them. This was
achieved with the help of the online research papers, links, various online articles and books.
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● And at the end the researcher will try to analyse the whole picture with help of the data collected
and will try to provide with some suggestion and the conclusion with the help of the resources like
books, online research articles, research papers etc.
1.3. RESEARCH HYPOTHESIS:
For the purpose of this paper, the researcher has come up with the hypothesis that there is dire need to
amend the present copyright Laws for the digitally created content on the digital platform.
THE COPYRIGHT LAWS AND THE DATA BASES

The basic idea of a data base is storage where all the collection of the data, content, essential material
related to work, and work is done. It can also be called as a compiler of the work done. The database
actually stores the data in a chronological and in a systematic method in a methodological way.
According to Lord Atkinson, for the subsistence of copyright, ‘it is necessary that labour, skill and
capital should be expended sufficiently to impart to the product some quality or character which the
raw material does not possess and which differentiate the product from the material.’4
2.1 WHAT IS DATABASE?
A database is a place which can be looked upon as a section which records and saves the data, content,
work etc in a chronological or methodological way. It is a systematic system in order to keep record of
the work done. The data provided and storage by the data base is usually done in an electronic form5.
The data base system is entirely different form the data base where the data is stored. The data base
system actually is used to direct and administer the data base.
A database can contain contents like sequencing of the DNAs’, the information related to any
scientific field like chemicals, informational data on a person or even on any specific object in order to
keep it safe, or any kind of recipe, work related to any art, etc. It might also include data for any
specific corporate company employee list, or work list, the salary records of the workers there,
numbers, addresses, positions, etc.
These information are stored in a particular place (data base) hence it becomes significant in order to
protect the data stored in side. Since, the data may also include personal information of an individual.
4
Macmillan & Co. Ltd v. Cooper, (1924) 40 TLR 186 at p. 188
5
http://www.oznetlaw.net/FactSheets/DatabaseProtection/tabid/930/Default.aspx last visited, 12/05/202.
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These can store texts, images, audios, videos etc. Hence, it comes under the domain of copyright laws
to protect the data from being used carelessly and from being threatened. Any interference caused to
the data stored inside the database can cause huge damage to someone’s privacy, since all these
breaches happened to the data stored this amount to great threat to the copyright laws as well, since
most of the data stored is computer based and can easily be copied on digital platforms, on internet to
larger audience out there.
2.2 COPYRIGHT LAWS AND DATABASES
As mentioned before database is a compilation of specific data that can be stored in a systematic way.
It was stated that even though the data stored in data base sometimes is not an original work though it
needs to be protected under copyrights Law6 . In principle, the facts themselves cannot be protected
but the order and organization can, if they show a certain level of creativity on the part of the author.
When referring to databases it is necessary to distinguish between creative and non-creative databases
because each is dealt with under a different set of legal rules 7. Under section 2 (o) of the copyright
Act, 1957 the data base is protected in the Indian Intellectual property rights. Under this section only,
though not defined prominently but the work of art or work of literature also comprise computer
programs and databases stored in the computer system. In case Telstra Corporation Ltd v Desktop
Marketing Systems Pty Ltd 8, the Australian court stated that the creativity by any one and the labour
done by the person needs to be protected. It was also mentioned the literary work done by anyone also
comprise the computer data or the database. Under the copyright Act, the definition of the literary
work is anything stored in the form of table, words, or anything in figures or symbols.
The Protection of the Database in India comes under the section 13 (1) (a) of the Copyright Act, 1957.
It simply states that the originality and the authentic work and labour of the person should insisted and
protected. There further more severe consequences to the actions if some one tries to breach the
security or someone tries to duplicate the work done, under section 63B the punishment is defined,
which clearly states that such actions can amount to imprisonment for at least seven days to three
years, and it may also include fine of about fifty thousand more or less to two lakh rupees. In Apple
Computer Inc. v. Mackintosh Computers Ltd 9, it was found that there was infringement of the work in
the form literature which stored in the computer and was reproduced, hence the court held that this
was complete infringement of somebody’s intellectual labour.
6
Jain,Pankaj & Rai.Pandey Sangeet, Copyright & Trademark Laws relating to Computers. (2005) at p. 45
7
http://www.unc.edu/courses/2006spring/law/357c/001/projects/dougf/node1.html (accessed on 12/05/2021)
8
Telstra Corporation Ltd v Desktop Marketing Systems Pty Ltd, [2001] FCA 612
9
Apple Computer Inc. v. Mackintosh Computers Ltd, (1988) 44 D.L.R (4th) at p. 74.
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2.3 PROTECTING THE DATABASE IN INDIA
The Copyright Act in India was amended in the year 1994 in order to provide protection to the literary
database which also comprised the data stored on computer database. It was stated that the digital
database also amounts to the labour done by intellect and the skill used to perform such labour needs
to be protected without depending on the fact that what results it may give. Computer programs
performed by people also required skills and labour and hence in order to protect the authentic work
done by them the Copyright Act, was amended.
Under section 2 (0) of the Information Technology Act, 2000 the definition of data was defined more
prominently. It came under the vicinity of the concept of computer-based programs, media i.e., audios,
videos, anything which is being stored on computer or is relying on computer to be stored, it was the
first time that the word data base got its definition and explanation under the India jurisdiction under
Information Technology Act, 2000 within Section 43 of the Act. Other provisions provided under the
Act it about the liabilities to the person if he or she tries to jeopardize any data, or someone’s work
which is stored in computer and who has a complete intention to cause harm to the data stored on the
computer, this may cause to violation of privacy of the person, computer trespass such provisions are
covered under section 66 of the Act. This also includes the actions like hacking if anyone tries to
destroy the content stored on the computer with an intention to do so.
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INFRINGEMENT OF COPYRIGHT ON THE INTERNET
As mentioned prior to this internet is a vast source of content. And hence it has also become one of the
greatest threats to the copyright Act, since it is easier to copy, infringe, or to share someone else’s
work on the digital platform. In order to protect the originality of the work the Copyright laws are
induced. Sometimes infringements are done with purpose, with an intent to cause haem to the content
and sometimes the infringement may be caused due to the negligence. There are many forms in which
a data can be infringed online, like, copying, archiving, sharing the work on the internet to the larger
domain of public, or by linking, framing, hacking etc.
3.1. FRAMING:
Framing is an exercise which is becoming common these days. In this one can easily frame the
original work, data, or the site in order to claim it and can display it as an independent site for use, one
can easily download data and create a different independent frame to use. These sites do not frame on
itself or overlap once put to use.10 The framing was also observed in the case Washington Post Co v
Total News Inc11, in the instant case plaintiff was responsible for the infringement of the copyright
laws of the internet since he made a website and then framed it inside the website of the defendant,
hence when the symbol on defendant’s website was clicked it framed directly to the website of the
plaintiff.
In Future Dontics, Inc vs. Applied Anagramics Inc12 the plaintiff created a website on the plaintiff’s
frame in order to do advertisement of his own business, even though he was provided with a telephone
number for the business purpose and even a mark for the business. In the present case court stated that
there was infringement of the copyright on plaintiff’s part.
3.2. CACHING
If a person wants to copy an original work and needs to store it in a temporary storage then caching is
used. Cache basically defines as a storage place where one can store data or content temporarily and
the content saved can be available to the user whenever he wants to use it.13 There are some features
to caching, that is if one person needs to go through the procedure then the copying if data is done on
the computer while accessing the website in the meantime, then the data copied by the person is also
saved with the data viewed by the users and in the last the data copied is not exactly getting saved on
your desktop rather on Internet Service Provider or we can say on the website.
10
Microsoft Press Computer Dictionary, third ed., p 207
11
Washington Post Co v Total News Inc, No. 97 Civ 1190 (PKL) (SDNY 1997)
12
Future Dontics, Inc vs. Applied Anagramics Inc Case No. CV-97-6991 ABC
13
Pankaj Jain and Pandey Sangeet Rai, Copyright and Trademark Laws Realting to Computers, Eastern Book Co, 2005, p
278
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3.3. DISPLAYING PUBLICALY AND THE RIGHTS OF UPLOADING AND POSTING ON

THE INTERNET
All the work and content created and posted on the internet, holds the copyrights of the originality of
the work. When any such data or content is posted on the digital platform, i.e., on the internet without
any direction of the copyrights provided to it then the work uploaded has infringe the copyright of the
original work. Since, internet is a vast platform it is difficult to control the people on the internet and
when the content is posted on the internet it is almost open to everyone present on it. There are not
any concrete or hard and fast rules defines for this but a conclusion can be reached if tone detects the
infringement of the copyright of the original work. Sometimes the user is unaware with the fact that he
or she is copying someone else’s work and causing infringement of the copyright. In the case Playboy
enterprises Inc v. Frena14 the defendant said that he was not aware of the idea that by his actions he
was infringing the copyrights, he created the BBS (Bulletin Board service) where the content provided
was copied and infringed. He said he never had any intentions in doing so but the court held him liable
for his actions. Completely different actions were taken in the case Religious Tech Ctr vs. Netcom
Online Communication Service Inc15. in this case the court expressed that BBS did not withheld any
information from the originally copyrighted work, and did not make any changes over it or never did
they control the content created by the original creators hence they were not charged with
infringement of the copyright of the original work. They basically said that it was acting as a medium
of information to the public.
14
Playboy enterprises Inc v Frena, 839 F Supp 1552 (MD Fla 1993)
15
Religious Tech Ctr vs. Netcom Online Communication Service Inc, 907 F Supp 1361. 1372-73 (ND Cali 1995)
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JURISDICTION PROVIDED UNDER THE COPYRIHT ACT
For the first time the copyright in India and the skills and work of the people were protected by the
Copyright Act, 1957. After there were many amendments made to the Act, mainly there were many
other definitions and provisions were added to the Act. With the constant change in the society the
laws had to amend itself in order to protect the rights of the users, content creators. The most recent
amendment made to the copyright Act, 1957 is Copyright Act, 2012. This was mainly enforced in
order to protect the originality of the data and content present on the digital platform. More
specifically data which can easily be transferred, copied, framed or even hacked. The internet services
play a vital role here. The internet is a platform with the majority of the chance to cause infringement
to the copyright of the work. The newly amended Copy right act clearly mentions about the liabilities,
punishments and penalties for the infringement of the copyright work. It also covers the part with the
portion of stating the necessity of the statutory license in order to make sure that the sharing of the
data does not amount to infringement of the data. The Copyright Act, 2012 had tried to maintain the
originality of the work by distributing creators with the royalties of their authentic work and to the
creators. There is also a provision of fair use which is covered under the section 52 of the Act, and is
influence by the TRIPS agreement 1995 and Berne Convention of 1885. The Indian justice system is
trying to make copyrights law more authoritative and empowered in order to protect the data used
digitally.
In the recent case UTV Software Communication Ltd vs. 1337x and ors16 it was stated by the court that
there is no need to cause any distinction between the crimes caused in the physical world to the crimes
caused digitally, as it was questioned in the case. The second main issue was raised to put severe
guidelines over the usage of internet due to piracy of work. It was stated by the court that putting
obligations on the user in order to use internet is not a solution, let alone also interferes with rights of
the users, hence there should be sense of responsibility in order to handle and use the content on
internet. There should some expected regulations that should be followed and should be implemented
in order to prevent any such situation. In the present case the main issue was that the plaintiff hosted
the defendant’s website and shared the copyrighted content over it there by infringing the copyright of
the work, hence amicus curiae was assigned to Mr Hemant Singh in order to answer the issues raised.
16
UTV Software Communication Ltd v/s 1337x and ors, CS(COMM) 724/2017
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RIGHT TO REPRODUCTION OF DIGITAL WORK
It has become easier to copy the work which is created digitally or with help of the digital
technologies around. In copyrights right to reproduction is an essential role and it has also caused
major threats to the copyright laws in time. Right of reproduction is also addressed by the Berne
Convention but in 1967. In the Stockholm Revision of 1967, a new text of Article 9(1) was inserted,
which in the words of Stuart, “is both lapidary and embracing both present and future processes”17.
Since the adoption of the Statute of Anne, the mother of modern copyright law, the reproduction right
has been at the heart of copyright law for more than three hundred years. Though recognized as a
seminal right accorded to authors18 the reproduction right per se has not been unambiguously
delimited by the international instruments for copyright protection 19 . Due to the lack of agreement on
the right's scope and content, the original text for the Berne Convention did not include any provision
that expressly protected the reproduction right20. There are many questions and arguments over this
specific right. As mentioned under the Article 9 of the Berne Convention, it gives privilege of the
right to reproduction of the work. Hence it defines it in the form where it says that the provision of
right to reproduction is provided under this article in a form. Now the phrase “in a form” has caused a
great ambiguity in the article and among others. Does that mean that the person under this article is
not entirely free to copy the content and can only reproduce it with the idea of the original text and in
a different body form?
Hence under WIPO there is provision of two article where the right to reproduction of the content is
defined and is also protected. It clearly states and specify about the direct or indirect authority of right
to reproduction over the content. In this the members or the users have got the freedom of recreating,
changing, reforming the content with the right of reproduction, this simply specify the idea of
reproducing something with modified features in it. Under section 13 of the Copyright Act of 1957, it
states about the protection of the work, and the creation of the work since it is the intellectual labour.
But further it also provides provision where it states that if a person who has created content, then he
or she can enjoy the right where they can reform or reproduce their own work but this provision is not
applicable for indefinite time. It has a time limit over it.
17
Stewart, supra, p 121
18
Goldstein, P. (2001). International Copyright: Principles, Law and Practice. New York: Oxford University Press
19
Spoor, J. H. (1996). The Impact of Copyright in Benelux Design Protection Law. In P. B. Hugenholtz (ed.), The Future
of Copyright in a Digital Environment (54-86) Hague: Kluwer Law International.
20
Ricketson, S. (1987). The Berne Convention for the Protection of Literary and Artistic Works: 1886-1986. London:
Centre for Commercial Law Studies, Queen Mary College
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6.1. Characteristic Of Copyright Amendment Act, 2012 And Rules Defined
Copyright Amendment Act, 201221 have made may major changes and provisions are provided under
the same:
● If a person saves the content or data from any electronic platform or digitally with clearly stating
the reasons behind it then it must not amount to the infringement of the Copyright Laws.
● If the non-commercial library is providing with the hard copy or paper-based copy of the work
then they are allowed to store the E-copy of the very work and it may not constitute to
infringement of the copyright.
● The links created in order to use them later for the purpose mentioned are not strictly prohibited.
● The data which can be used for the cause like education is provided without any prohibition. Such
data can be used in lecture by the teachers to teach, there are no such rules applied here.
The Copyright Rules 201322

● The rules made the license obligatory
● The statutory license became an essential part
● Copyright societies are required to go for their registration
● The members and users are required to join the membership of the administration of copyright
societies
21
https://www.wipo.int/edocs/lexdocs/laws/en/in/in066en.pdf last used 12/05/2021
22
http://copyright.gov.in/Documents/Copyright_Rules_2013_and_Forms.pdf last used 12/05/2021
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CONCLUSION
The present copyright laws are not concrete enough to protect a creator’s work. The laws and
jurisdiction provided under the act is filled with loopholes, and drawbacks. The provisions are not
enough to give safe environment to authors to create new art, data, work. In spite of various legal
developments made in the field of copyright laws, there are still many infringement cases being
reported on daily bases. There is a need to update the laws related to protection of the data present
digitally on Internet since the internet and society is evolving everyday with new technology being
added to it. There is still work needed in order to speed up procedures in court, since the growth of a
copyright bar has not been at its peak. There is a requirement for a well-equipped and intellect
government official in order to detect any infringement in relation with copyright. There needs to be
more penalties, concrete penalties as a consequence of the violation of the copyright laws. Such
incidents can be used as precedents in order to prevent such actions or offences in future. Though the
new amendment in the copyright laws have made a sign, where one can see that the government is
working in the direction in order to make the digital world as safe to work with all the required
measures taken.
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BIBLIOGRAPHY
7.1. BOOKS:
● DAVISON, THE LEGAL PROTECTION OF DATABASES 11(CAMBRIDGE UNIVERSITY PRESS,

CAMBRIDGE,2003)
● K Idris, INTELLECTUAL PROPERTY: A POWER TOOL FOR ECONOMIC GROWTH 78-79 (WIPO,
Geneva, 2000)
● MEENU PAUL, INTELLECTUAL PROPERTY LAW, 272-277 (ALLAHABAD LAW AGENCY,
FARIDABAD, FOURTH EDITION 2012)
● V K AHUJA, LAW RELATING TO INTELLECTUAL PROPERTY RIGHTS 219, 311, 535-551(3RD
ED., LEXIS NEXIS 2021)
● GINSBERG, J. (2003). ACHIEVING BALANCE IN INTERNATIONAL COPYRIGHT LAW,
COLUMBIA JOURNAL OF LAW & ARTS, 26, 201-245.
8.2. CASES:
● Macmillan & Co. Ltd v. Cooper, (1924) 40 TLR 186 at p. 188

● Telstra Corporation Ltd v Desktop Marketing Systems Pty Ltd, [2001] FCA 612
● Apple Computer Inc. v. Mackintosh Computers Ltd, (1988) 44 D.L.R (4th) at p. 74.
● Washington Post Co v Total News Inc, No. 97 Civ 1190 (PKL) (SDNY 1997)
● Future Dontics, Inc vs. Applied Anagramics Inc Case No. CV-97-6991 ABC
● Playboy enterprises Inc v Frena, 839 F Supp 1552 (MD Fla 1993)
● Religious Tech Ctr vs. Netcom Online Communication Service Inc, 907 F Supp 1361. 1372-73
(ND Cali 1995)
● UTV Software Communication Ltd v/s 1337x and ors, CS(COMM) 724/2017
8.3 JOURNAL ARTICLES:
● Gulla, R. K. (2007). Digital Transformation of Copyright Laws and the Misty Indian Perspective,
Icfai Journal of Intellectual Property Rights, 6(3), 1-26
● Mittal, R. (2006). From Printing Press to the Internet: The Stride of Copyright along with
Technology, Intellectual Property and Technology Law Journal, 1, 21-46
● Ginsberg, J. (2003). Achieving Balance in International Copyright Law, Columbia Journal of Law
& Arts, 26, 201-245.
8.4 RESEARCH ARTICLES:
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● 8 Indian Copyright Law and Digital Technologies,
http://docs.manupatra.in/newsline/articles/Upload/040BB5AA-DE9A-4895-AA66-
C82590E7BFF2.pdf
● Copyright Protection in Digital Environment: Emerging Issues,
http://www.ijhssi.org/papers/v2(4)/version-3/B240615.pdf
● Copyright Issues in Digital Media https://www.cbo.gov/sites/default/files/108th-congress-2003-
2004/reports/08-09-copyright.pdf
● Copyright in Digital Era https://blog.ipleaders.in/copyright-digital-
era/#:~:text=Challenges%20faced%20by%20Copyright%20in%20Digital%20World&text=Copyri
ghted%20works%20on%20the%20internet,copy%20of%20the%20protected%20work.
● COPYRIGHT INFRINGEMENT ON THE INTERNET https://blog.ipleaders.in/copyright-
infringement-on-the-internet/#_ftnref11
● Why India needs to modernise its copyright laws for the digital era
https://theprint.in/opinion/why-india-needs-to-modernise-its-copyright-laws-for-the-digital-
era/550243/
● Digital Copyright Laws https://lawtimesjournal.in/digital-copyright-laws/#_ftnref9
8.5 STATUTES:
● THE COPYRIGHT ACT, 1957

● THE COPYRIGHT RULES, 2013
● THE COPYRIGHT ACT 2012
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Research Paper on Social base of political parties with their voters having
shifted their allegiance to different political parties. Politicianstoo are
found to be party hoppers.
By : Shrey sahai
ABSTRACT-
While there seems to be general consensus among politicians and voters and that the influence of
political leaders on voters is very important. In this paper My approach is based on two
perspectives: that party leaders influence indirect voting behaviour and that the main effect leaders
have is on how voters think and feel about their parties. (2) If party leaders are concerned,
leadership changes must be accompanied by the most powerful changes in party affiliation and
subsequent changes in support of the election. In order to get the results of the political leaders in
the vote the right strategy is to focus on changing unity immediately after a change of leadership. I
will also mention about voter behaviour in relation with the present elections scenario.
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INTRODUCTION -
“Voting is one of the most widely used words in the modern era of democratic politics. In
democratic systems, old citizen uses “voting" as a way to show his acceptance or reject government
decisions, policies, and program editors. For this reason, vote is considered a basic process of
democratic decision-making. However, in broad terms, such as Richaed Rose no Harve Massavir
pointed out, covering voting as as many as six tasks: -
1. It involves personal choice executives or major government policies;
2. Allows people to contribute to continuous and continuous exchange of influence
office bearers and candidates;
3. It helps to develop individual honesty of existence constitutional state;
4. Contributes to voter development disagreement with the existing constitution state;
5. It has emotional significance for individuals; and
6. For some people, it may not work off any emotional or political significance human results.
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Understanding voter behaviour and it’s determinants
Samuel S. Eldersveld in his article “Theory and How to Investigate Electoral Conduct ” he writes:
“The word electoral conduct is not new. More recently, however, it has been used to describe
specific areas of research and types of politics events that were not previously conceived or is
considered inappropriate. ”Behaving in time voting is not limited to voting tests statistics, records,
and accounting changes to elections and ratings. It is an analysis a human and psychological process
and political actions. According to J. K. Plano and Riggs: “Voting ethics a field of learning about
how often people vote in public elections and the reasons why vote the way they do ”. Personal
choice voting votes and related values is called voting function. Election is about process for the
role of democracy in which all people express their opinions individually as well issues with voting
votes . However, given the situation with the conduct of Indian choice, prof. UV. S. Sirsikar
observes: “The study of the selection process points to other external factors. It can be said that
India has benefited stable government, but great deception, caste influences, fear of a few and a
prime minister governance did not play a significant role in this process. There can be many
determinants in voter’s behaviour some are -
Caste continues to be the deciding factor how to vote in India. It has deep roots in community and
forms an important foundation for social relations at all levels. Apart from- acceptance of various
restrictive conditions action and discrimination on the basis of, class it continues to be a decisive
factor . The political parties in India, without exception, formulate their policies, programs and
election strategies always maintain caste status in mind. It is often seen in several political parties
during the nomination process the voter while exercising his or her voting right, pays special
attention to the category of the person to be written time for the election slogan "jat ki beti jat ko, jat
ki voto jat ko "were seen . Morris Jones writes, "Politics is very important to the elite and the elite
more politically important than ever before.’’
Popular slogans: Sometimes different political parties suggest people's slogans according to the
need of time and affect voter thinking. For example, the conference has adopted the motto, ‘garibi
hatao ’in 1971. In Lok Sabha the slogan was' Aabki bar Modi sarkar.
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.
Personal contacts: Candidates' contacts ,voters personal contacts ,it also affects the behaviour of
voters. The majority of voters are influenced by the candidate’s visit and vote for their kindness.
Apart from this, relatives as well Friends of the candidate also voted in kindness to them for
personal gain relationship.
Religion:
Religion also plays an important role in India politics. Many political parties were built on the basis
of religion in India. During election time, different political parties pleads votes in the name of
religion. They raise the slogan ‘Religion is in danger’ and they promote the religious feelings of the
people. While distribution of party tickets religion voters and nominees are given a fair go
consideration. It is often seen that they do not vote ,they voted for the candidates in the election
under the influence of a religious feeling.
Language:
India is a multilingual country. The language also acts as a factor in voting behaviour. There have
been problems in provinces such as those of the individual state language in that context, or relating
to quality of the state language of the state. Since people have emotional contact with
themselves ,their languages, they are easily influenced at any time any language-related issue arises.
Language interests always influence voting character, for example, DMK defended the vote of the
Tamil Nadu people in 1967 and 1971 by making anti-Hindi propaganda.
Financial influence:
India is nation with a large number of people living below the poverty line. Money plays a very
important role in determining conduct of voting in India . During elections, the poor attracted by the
lust of money. In this way, the process of, ‘Give a note and vote’ continues in India
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1) Political parties dominating elections , not the candidate
The general view regarding Indian politics is that it is not the candidate ,but the party, who wins the
election. This makes it important for parties to choose candidates who are “right”, and Indian
parties spend a lot of effort on local consultation and ownership statistics when deciding who will
get party tickets. The belief that candidates will win or lose has also led many independent
candidates to throw their hats in the polls. How do these independent people continue?
The dramatic growth over time in the number of candidates, especially electoral candidates, but also
the fact that an independent candidate is less likely to win a parliamentary seat in India. While in
most constituencies, most people are vying for one seat, there are also rare cases where one person
running for office is unopposed. This happened 13 times between 1962 and 2014.
An irresistible election often occurs when there is a very strong election in practice. For example,
Manavendra Shah, the last ruling king of the Garhwal Kingdom (a prince who came in Independent
India on May 18, 1948), was elected a Member of Parliament from the Tehri Garhwal (modern-day
Uttarakhand) party in 1957. It was the most prosperous region in his former empire, and he received
the largest majority of 79 percent of the total votes he received. In 1962, he ran for re-election
unopposed.
Another example is the President of the National Conference Farooq Abdullah, the son of Sheikh
Abdullah (former Prime Minister of Jammu & Kashmir and the icon of Kashmiri politics), who ran
unopposed from the Srinagar region of Jammu & Kashmir in 1980 when Sheikh Abdullah
appointed him as his successor. The last time he won the Lok Sabha seat unopposed was in 1989,
The poor performance of the independent candidates indicates that the electoral competition in
India is primarily between political parties. An excellent example of the importance of parties
comes from the above-mentioned Manavendra Shah, who, despite honouring his name, lost the
election in 1971 while running for re-election. He returned to power in 1991, but with a BJP ticket.
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Changing trends in the mind set of Indian women:
Social transformation has led to various developments in various fields such as communications,
media, transport and education. And these changes have a profound effect on the lives of both men
and women. While change is evident in urban areas, it is not so in rural areas. With minimal
development impact rural areas remain unaffected by all such social changes. Mahatma Gandhi said:
“Women are men's partners, they are capable of mental equality and have the right to participate in
the smallest detail of human activities and have an equal right to freedom and liberty with him. She
is entitled to a higher position in her profession as well as men. ” Over the past 30 years, there has
been a marked improvement in the number of women from various parts of India. It may not be the
highest number of female voter registration but the active participation. The women who had been
barred from the four walls of their houses under cover came out to choose their future representatives
to have the same voice as the men."An empowered woman can be one who is self- confident, who
carefully analyses her environment and who controls decisions that affect her health."
Modern women want equality in all areas of life. In addition to finding this equation it depends on
the set of values they follow, their psychological structure and the society in which they operate.
Although in Indian society, the role of women in politics can be criticised or hampered, the fact is
that women play an equal and important role in society.
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Political involvement:
Equality and equal participation in the representation of women compared to men in politics reflects
equality, freedom, justice and equality in society. Women who participate in politics are not only
equal but also act in the interest of women in Indian society.
Women's political participation is necessary because the votes make up the decision-making power
in government ,where they raise their voices against government to ask what the government has
done for them. “India's constitution gives women full political, equal rights with men. Women can
vote, run for office and hold ministerial and senior positions. According to the Women's Status
Committee report, three key indicators can be used to assess the political status of women, namely,
(i) participation in the political process as voters and candidates; (ii) political contexts such as
awareness, commitment and political involvement and independence from political action and
conduct; and (iii) their impact on the political process. ”
"In India, electoral politics continues to be maintained by a man, both intellectually and figuratively.
when women increase their votes in India, there is a way for women to first seek advice from male
family members, or to follow the instructions of male members of the family, which suggests that
they have the power to make sound decisions. ”
“There are fewer women for political office than men. On average, there were three women
candidates for every major candidate in the last election (3%). “Although Indian women have been
very successful in development as part of the political arena, her struggle continues to be accepted
as an important political component. Participation can be given in many ways in the community and
voting for the electorate to represent the people is one of them. The active participation of women in
politics has been a staple of the growth and development of society as a whole.
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Bengal voters most obvious question -Employment (Through voter’s mind)
From a man working in Bankura to a young student in Paschim Medinipur to a young farmer in the
middle of Birbhum - they all see the BJP-led government as a revolutionary political party, which
can pull the government out of the ruling party's vicious circle of widespread violence and
corruption.
That Bengal was "left behind" many decades ago due to allegations that ruling parties in the state
are talking about without hesitation. Aside from the fact that the state has one of India's leading
social and social infrastructure, and that successive governments are focused on strengthening the
welfare model of the poor, the average voter in Bengal wants more, and believes that only by
changing governments every five years will political parties respond publicly.
"The CPI (M) issued a decision for 34 years, and then gave Didi ten years, now it is time for a new
party," said Dalit voter in Surul village in Birbhum district. .Most have the right answers to ensure
that the performance of BJP in the institution is less productive, and that India currently sees one of
the highest unemployment rates.
BJP, unlike TMC and CPI (M), is a supportive . If it comes to power, and succeeds in getting other
industries to come here, we can get jobs in our province instead of looking for work abroad, ”said
an Adivasi agricultural worker in Jhargram. Similarly, a Singur farmer, who supported the
disruption of crops against Tata Nano in 2007-08, said it was a mistake to evict the Tata. He said
they should have let the factory go up their - a belief reinforced by the small amount of money he
received as a potato farmer a few years ago.
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The various girls' education schemes introduced during the TMC government do little for the young
woman who graduated from the Sabbath in Paschim Medinipur. He said, "Porashona kore ki
laabh, kono chaakri toh paachi na ('what will come out of my education, I don't get jobs')."
A middle-class port official loudly recommended that Haldia harbor be made a home, where he was
informed of TMC's campaign against BJP's brutal investment policy. “Now there is a lot of
corruption and bigotry here. We are contract workers who rely on daily salaries. Whether we work
hard or not doesn't matter. No one respects us. If the company takes over, I believe the port will be
well managed. And we will be given promotions according to our ability and hard work.
The BJP campaign, which sponsors “vikas” and “ashol poriborton” addresses these specific
problems of the rural and middle class poor. It draws all efforts to be seen as an industry-backed
political party compared to the ruling TMC and the Left Front. The BJP's grievance among a large
segment of the population, including organised communities, organised races, and many other low-
income farming communities lies directly in the hope that the Narendra Modi-led group could bring
in other sources of employment. While the BJP's top leadership, including the Prime Minister and
Union Minister of Home Affairs Amit Shah, spoke mainly about these concerns, its regional
leadership supported its top leadership in the face of the TMC extremism. The constant self-control
one hears in rural Bengal is that the TMC leaders are corrupt and oppressive
INDIA VOTES WILL CHANGE IT’S FUTURE COURSE
Looking back at the 2004 national elections, the NDA was confident that it would win and the
election was rescheduled for the day before, but the results showed that everyone was wrong. In
2009, people were convinced of the change and the UPA was expected to come out, but the results
showed that everyone was wrong again. In India, it is difficult to pinpoint exactly how people
vote. Moreover, poll research is hard to believe because it is often wrong rather than right.
The Indian election is equally deceptive. Having said that, it is very important for voters,
especially those who will be voting for the first time, to look at this: India is among the smallest
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countries, where the average age by 2020 could be 29 years. This is more commonly called
segregation - our great asset. This human share is likely to last for another 25 years. Therefore, it is
important that India is governed with a clear and long-term vision. If we waste our voter’s power
our vision ,India will lose it’s path
How do voter’s vote in India
In India, the majority of people decide to vote on issues such as personal preferences, party,
election, occupational equity ; and not in data, understanding and consultation. Money and muscle
power play an important role in rural and urban areas. If this continues in the future elections, we
must abandon our dream of becoming a prosperous nation.
Real Problems of Assumption
Given the available data, it is expected that today’s ‘responsible’ voters will not believe in slogans,
long-term promises and suspicions, but carefully filter out the details of the current situation,
economic growth and power in India. For me, this is the most advanced. If the economy does not
grow by double digit, India has a problem knocking on its door.
Forget creating jobs; saving jobs will be a major challenge. Also, the education system is in trouble
and needs to be repaired. Healthcare seems to be at the forefront but there is still much to be done.
Agriculture is another source of concern and needs to be addressed, as only 46.5 percent of arable
land is irrigated. If the agricultural crisis is not fully addressed, we will face the challenge of food
security and inflation, without the burden on urban infrastructure and jobs due to people leaving the
agricultural sector.
In job creation, the Micro Small and Medium Enterprises (MSME) sector needs greater
strengthening, and plans to connect it to agriculture are the key. No one is talking about ‘job
creation costs’.In my research I have come to the conclusion that to create between 1 - 1.2 crore
jobs every year, India will need an investment of $ 3 - 3,60 million annually, which seems difficult
with less money at alarming rates. Also, the current growth rate, assuming that it remains 8%, will
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only produce 60 lakh jobs every year, and this will add to unemployment and only unemployment.
We need ideas out of the box to develop the economy.
There are 13 crore seniors - while their income is declining, their health spending and social
security are increasing with age. We need special work to develop skills for adults. Ignoring the
needs of the elderly will drag the economy backwards. It is our moral responsibility to take care of
them. Foreign measurement agencies are constantly measuring India’s growth with their irrational
rating system. Political leadership will have to pick up the line between 'shortfall' and 'deficit'. We
need greater investment in infrastructure.
The Role of News on mind of Indian voters
Indian voters look at the news to determine where the country is heading, and the role of the media
is crucial in all the elections. Therefore, it is important that the media remain neutral and separate
the electoral roll for all political parties, the current economic situation, and make it easier for many
people to distinguish between discourse and truth.
Also, in addition to analysing the commitments made in the election manifesto, there should be a
debate and discussions on how those commitments will be fulfilled, as well as their previous record
should be taken care off.. The media must play their part in delivering the facts as they are, and
voters must put their heads in the assurance that the promises made in the manifestos can be
fulfilled and supported by the system?
KERELA -AN INSIGHT INTO MIND OF VOTERS
In Kerala, a country with its long-tested social and political system that seeks to unite all segments
of the people, regardless of religion or class, the emergence of the National Democratic Alliance as
an alternative to both political parties resulted in a minority class. Varying voting preferences reflect
the Left Democratic Front crisis. With the exception of the extremely poor, all other social and
economic groups, including Dalits, Other Backward Castes, lower classes and the younger
generation, are more flexible and changing their political preferences, depending on the emerging
social reality.
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Kerala's election elections have marked a dramatic change in voter’s voting behaviour, that is,
voters of all constituencies have lost their loyalty and vision to look forward. While the Hindu sect
has moved from the Left Democratic Front (LDF) and the United Democratic Front (UDF) to the
National Democratic Alliance (NDA) called the Bharatiya Janata Party (BJP), the vast majority of
people have fallen over the UDF to -LDF The NDA has pierced the ecclesiastical hierarchy of
polarism , which has been popular with the government since 1957, by opening its account at the
meeting for the first time and increasing its vote share significantly, from 6.06% in 2011 to 14.64%
and in 2016. In addition, the election also dashed the hopes of many smaller parties and factions
such as the Democratic Kerala Congress, the rebel party Kerala Congress (Mani) —KC (M),
Revolutionary Socialist Party (RSP), Janata Dal (United) —JD (U), Indian National League (INL),
and the Communist Marxist Party (CMP), to name a few.
In the run-up to the elections all three parties grew well with their Kerala vision for the future and
clarified the same in their electoral riches. In addition, for the purpose of quick communication with
the masses, the services of the advertising companies were also used and the form of consolidated
opinion was presented in the form of slogans. For the UDF this was "careful development" "left-
wing development without corruption and a non-communist society." Meanwhile, the NDA has
stated that it stands for “inclusive development”. Interestingly, voters decided, for the most part, to
cast their ballot with the LDF and the result was 91 seats out of 140, with 43.42% of the vote.
WINING OF AAP TELLS ABOUT UNIQUE FORM OF POLITICAL AWARENESS
AMONG VOTERS
Modi's BJP could continue to be a prominent political party at the Union level, and without a trusted
national opposition or candidate to contest, the party could continue to play its role in the coming
years. However, what is most interesting is that the regional parties stand out and win over the BJP
in the many recent elections at the state level. The party lost Rajasthan, Kerala ,West Bengal and
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failed to gain the full majority in the Haryana region, Maharashtra (given the Shiv Sena-Congress-
NCP coalition there).
The BJP's national governance and Modi's reputation and presence have never diminished at the
level of government and this, in the context of segregation and a climate of mistrust or division
between state and institution, could pose all sorts of problems with the implementation of Union
rules (some government meetings have already passed. It says a lot about the dynamics of the
existing structure of state power). The past few years have seen the rebuilding of the power base
between the Union and the centre under Modi-Shah's rule. The main focus is on reducing agency or
autonomous political and financial autonomy. While the latest national-led protests against the
NPR-NRC-CAA have sought to revitalise India's constitutional spirit and restore faith in the
foundations of the constitution, it is important to understand that the ambitious issue of
centralisation can be better challenged by the combined manifestation of a republican culture. and
stand up against the practices of centralism (whether institutionalised or officially sanctioned from
above). Co-operation, along with the demolition of the democratic agency actually leads to the
creation of a lifting and democraticization of preferences.
As a result, the political divisions of power structures at national, state, and local levels in the
current system, and the AAP victory in Delhi, may seem to have taken a toll on the divided sense of
the people of India. This choice to have a competitive government base in its link to electoral
change must therefore be understood as a collective resistance to the merger of political agency and
administrative action, providing a new face to the spirit of strong unity emerging.
VOTING ANALYSIS IN ASSAM (TEA TRIBES)
Voting behaviour is always influenced by the existing social, economic and cultural and historical
aspects. Apart from that, traditional methods such as caste, charisma, position, positions, wealth etc.
also influence voters to a large extent. As India is slowly experiencing radical social, economic,
cultural and political change, voter’s voting patterns also remain unchanged. There are various
communities and parties in all societies and they support different political parties and ideologies.
In some cases, urban areas use their franchise on a much larger scale than those in rural areas. It is
said that the attitude and conduct of voters significantly determines the election and the conduct of
the election.
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The political significance of the nation of tea nation in Assam is very significant. National tea
voter’s play a major role in all Assam elections. For all the parties and communities in Assam, the
role of the tea nation in the election has become very important. This community has 35 lakh voters
enough to play a key role in any election. Looking at the voting behaviour of the tea nation, it is
clear that the tea community is becoming increasingly involved in the electoral politics of Assam.
Their vote in the recent Lok Sabha elections is also higher than in previous elections. In addition,
tea gardeners are interested in political activities that will enhance their political participation. This
is a good sign of a democratic process. We have seen the level of political involvement of the tea
nation and we can say that this community plays a major role in Assam's electoral politics.
There is a growing need to study voting behaviour in developing countries. Because it is very
important to know how voters behave under various circumstances during elections. In any
democratic system the characteristics of voting behaviour affect the way they vote as time voters
have their direct and most powerful influence on the governance process.
DATA TELLING ABOUT INCUMBENCY
When all the explanations fail to explain the election decision, one green answer always helps: to
fight for office. If the National Democratic Alliance (NDA) government had lost power in Bihar, the
most prominent story would have been the struggle for power. The parties themselves are accused
of defending positions as a definition once they have been elected, as if Indian voters are
accustomed to voting for ruling parties.
Conclusion:
The continuity in the operation of India’s political system as a developing democratic political
system is progressively training the Indian voters. The process of emergence of an issue-based
political struggle in place of caste or religion or personality dominated struggle for power is slowly
but gradually changing. Elections occupy a prominent place in the democratic government. It is a
way through which people express and implement their political opinion and control the political
organisation of society. However, the behaviour of a voter is affected by many factors such as
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religion, caste, community, language, money, policy or ideology, the objective of the polls, and the
like political parties make use of these variables for winning the elections. It is, therefore, crucial
that the use of these determinants should be avoided and elections should be conducted in a very
free and fair manner.At this rate, it is encouraging to see voters show an increase in the tendency to
consider broader indicators of their government's performance in managing the economy when
conducting their election statistics. Looking a little over the prism of domination and democracy,
this is a good development. At the moment, concerns based on ownership and economic or systemic
evaluation are at play; it is impossible to conclude that one is clearly superior to the other. It is
noteworthy, however, that politicians who want to gain power on the basis of petitions based on
personal ownership have experienced difficult times. Successful politicians have found reliable
ways to marry with traditional grievances on the basis of ownership with a forward-looking,
aspiring agenda.
Second, it is ironic that while voter motives may change, the composition of the electoral body is
not the same. In a sense, voters have more options than ever before, as evidenced by the increase
in the total number of parties running for office. However, there is little change in the status of
candidates. Dynastic politicians and those with criminal records are often well-represented in state
and national politics. Moreover, politics continues to be dominated by men. In 1957, in the first
general election in which gender information was available, only 3% of the candidates in
Parliament and 4.5% of the winners were women. While those numbers have skyrocketed - in 2014
women accounted for 8.1% of the electorate and 11.2 percent of the winners - women are still the
most represented in parliament in terms of their general public budget.
Finally, while the full balance of power between regional and national parties seems to have
reached a stable level, the fortunes of Congress and BJP have seen a dramatic change. In the first
four decades of the post-independence era, Congress was the turning point in Indian politics. That
position was to be held after the historic 1989 election, which marked the beginning of a unified
political era in Delhi, in which there was no clear centre of national political dictatorship.
As a result of its performance in the general election and the general election held before and after
the national election, the BJP filled that vacancy - and its election benefits from 2013 came as a
result of Congress, which followed - often showing in the general election. The continued decline of
Congress could mean that the BJP will lose true national competition in a few years. While the
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nomination of India's leading political party has now been passed, it is difficult to predict
whetherthis change will be temporary or will be maintained over time.
Somehow, from the BJP's point of view, this change of guards is a blessing and a curse. In
states where BJP and Congress are the only game in town, losing the Congress Party will be
the way for the BJP. But the situation is much more complex in countries where BJP and
Congress are fighting for a seat with one or more regional parties. In these provinces, such as
Bihar and West Bengal, a rapid decline in Congress could lead to the unification of the BJP,
especially if Congress leaves the election alone and develops new regional alliances. As BJP
may learn soon, this is one of the negative consequences of being a pillar in political
planning.
REFRENCES
1) https://www.jstor.org/stable/2642815
2) https://www.jstor.org/stable/2644759
3) http://www.ocerints.org/socioint18_e-publication/abstracts/papers/111.pdf
4) https://ncert.nic.in/ncerts/l/iess404.pdf
5) https://www.nap.edu/read/9897/chapter/12
6) https://carnegieendowment.org/2015/06/23/understanding-indian-voter-
pub-60416
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A STUDY ON THE LEGAL ASPECTS OF THE INTER-STATE

MIGRATION OF LABOUR (DADAN) WITH SPECIAL REFERENCE TO
BALANGIR DISTRICT, ODISHA
By : Chandi Prasad Khamari & Anjana Tripathy
ABSTRACT
Human life swings as it were between two poles; movement and settlement. As such, it
chooses to be either sessile or mobile. The movement of human beings for the purpose of earning
livelihood and settling down occupies a central place in the drama of human history as well as in
the growth of civilization. In order to get a better insight into the problem of the migrant labourer
and the protection available to migrant labour, a brief review of available studies on migration
has been written below. While preparing for the present paper, the researcher have delved into
the most embroiling issues entangling the civil society from the context of varied & diverse
socio-economic theories including the legal element and thereby exploring the dignity of the
Dadan Labourers. But the emergency of literature cannot be overruled in topics of socio-
economic stance; thereby it finds mention here or its fair share. An attempt has been made in
reviewing the past studies on Dadan Labourers to fetch a level playing field about the issues of
problems contesting the given subject matter. The scholar has also elaborated on what Dadan
means i.e. a person recruited on the basis of a contract (either expressly or impliedly) from the
State of Odisha. In this chapter the Scholar also highlighted the plight of Dadan Labour of
Odisha. Further the researcher had made an attempt to discuss the various legal provisions
applicable to Dadan Labour available in various labour laws and the specific beneficial
protective legislations applicable to them. The paper is concluded by giving suggestions for the
proper implementation of the labour laws.
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INTRODUCTION
The State of Odisha, whenever it is in news, it is mostly for wrong reason. Odisha is
endowed with rich natural resources and plenty of diversities .It is so, especially so far as human
resources are concerned. In spite of having the grace of Nature, in terms of minerals and
potential to use those minerals, yet in terms of economic growth, it is lacking behind many more
states in India. Not far back, Odisha used to be known for starvation-deaths, for flood, for
cyclone, for human trafficking, for lack of medical facilities and drought and famine etc. This
very thing is paradoxical per se. Agriculture is the lifeline of the State’s economy as it provides
employment to about 62 percent of total workforce of the State. At the same time the State of
Odisha is formulating &emphasizing on Industrial growth. Last as well as present the
Government has adopted various Industrial policy resolutions23. In Spite of having a dedicated
policy for addressing the issue of unemployment, 23.8% is the rate of unemployment in
Odisha24.
The census of 2011 lays down the total population of Odisha as 41 million out of which
22% belong to the scheduled tribe community and 16% belong to the schedule caste community.
It also categories 47% of Odisha’s Population tally below poverty line. The Tendulkar committee
estimates the BPL stats of Odisha up-to 57.2% whereas N C Saxena committee suggests that it is
84.5%. However the 2001 census portrays Odisha as a key migrant sending state with 9,37,148
inter-state migrants(Dadan)25. During the lockdown owing to Covid Pandemic, it is reported that
8,53,77726 migrants reported to have come back to Odisha. This indicates that there is dearth of
employment opportunity for which a sizable number of inhabitants from Odisha have been
migrating to other states in search of their livelihood.
There are numbers of laws to address the issue relating to migrant labourers. In Odisha
there is a specific law to deal there with migration i.e., the Orissa DadanLabour (Control and
23
Directorate of Industries, Odisha, Retrieved Jan 19, 2021.
24
The New Indian Expresss(2019, June 19, Retrieved Jan 10,2021, from www.indianexpress.com :
https://www.newindianexpress.com/states/odisha/2019/jun/29/unemployment-shadow-on-odisha-governments-
growth-claims-1996908.html
25
Docbox. (2014, july). Retrieved Dec 20, 2020, from www.lawsdocbox.com :
https://lawsdocbox.com/Immigration/74721096-Studies-stories-and-a-canvas.html
26
Bisoyi, S. k. (2020, Sept 30). Times of India. Retrieved Dec 20, 2020, from www.timesofindia.com :
https://timesofindia.indiatimes.com/city/bhubaneswar/8-53l-migrants-returned-to-odisha-after-lockdown-
minister/articleshow/78392115.cms
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Regulation) Act, 197527. Often on various occasions, the state assembly is found to have
discussed and debated these kinds of issues. Wherever such reports of suffering of migrant
labourers hit the headline, mind often agitates. Though it has become a permanent feature; still it
is not being examined from the prospect of lacuna in the enforcement of the law.
REQUIREMENT OF THE STUDY

Dadan Labour migration in Odisha was in existence historically but in the context of
urbanization, Industrialization and globalization it assumes special significance. Dadan migration
has drawn considerable attention after the initiation of economic reforms. Economic, Social,
Political and Geographical push and pull factors are responsible for the movement of workers
within the nation and across the nations. The development policies by all the governments on one
side and lack of sincerity on the part of the rulers and policy makers, lack of effective legislations
on the other since independence have accelerated the problem of migrant workers.
The policy makers have brought out much labour legislations including the legislation
pertaining to Inter State migrant workers conscientiously to improve the conditions of Inter State
migrant workers. The Inter State Migrant Workmen Legislation aims at protecting the rights and
interests of migrant workers who though moves from their ‘home state’ to ‘host state’ to seek
conducive employment, yet they suffer continuously.
The policy makers, the government failed to prevent and eliminate all forms of
malpractices and exploitation prevailing on Inter State migrant workers. The issues and problems
relating to law on inter State migrant workers have not gained much attention. Migration being
an Inter disciplinary field of research involving various disciplines such as Geography,
Economics, Demography, Sociology and law, has attracted mostly the Socio Economic scholars
to conduct research studies in the last six decades. Sufficient number of legal studies has not
been conducted by the scholars from the legal fraternity to address the issues and problems
relating to migrant workers, the law applicable to them and identify the loopholes and the
lacunae in the existing protective mechanism. Due to the loopholes existing in the
27
Orissa Gazette, Extraordinary, dated 17th March, 1975(No. 496)
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implementation, Labour laws aiming to protect migrant workers have remained largely on paper.
OBJECTIVE OF THE STUDY
Objective is a very important element in order to conduct a research. Basically it helps to
determine the outcome of the research. An objective helps to ensure the research compatible and
expose to the research outcome. Therefore, the objective in a research is an essential element.
The objectives are as follows:-
1. To examine the legal aspects of Dadan migration with special reference to Balangir
district.
2. To find out the problems and to suggest the remedial measures to combat the problems of
inter-state migrant workers.
GEOGRAPHICAL AREA OF THE STUDY

Though the interstate migration is spread across whole Odisha but for the present study.
The area of the study is in Balangir District of State of Odisha. The proposed study relates to
inter-state migrants (Dadan) laborers, both male and female, who had moved to other state from
the state of Odisha.
Balangir district of Odisha is the survey area among the thirty districts of Odisha for the
present study. Balangir District, also called Bolangir District, is a district situated in the western
region of Odisha, in India. The district has an area of 5,165 square km and a population of
1,648,99728. The town of Balangir is the district headquarters. Compared to other districts of
Odisha, Balangir is less developed but rich with natural resources. Not only this but also many
tribal communities living in this district. On other hand large numbers of labours are migrating
from this district to outside or within Odisha for work every year. Therefore in order to find out
the lacunas the present study has been attempted.
MEANING AND DEFINITION OF DADAN
The term ‘Labour’ is used in various senses. In the broad sense the term “labour”, may be
defined as any work, whether manual or mental, which is undertaken for a monetary
consideration. According to Marshall, Labour may be defined as “any exertion of mind or body
28
As Per 2011 census
40
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undergone partly or wholly with a view to some good other than the pleasure derived directly
from the work”29.
According to S.E.Thomas, “Labour consists of all human effort of body or of mind,
which is undertaken in the expectation of reward”. Therefore, the term labour as is ‘generally’
used to refers either to those persons who live by selling their services directly to the employers
or to the services that they sell.
Migration in Odisha is mostly understood as ‘Dadan’. It is important to note here that
legally this term has expressly defined under the Orissa Dadan Labour (Control and Regulation)
Act, 1975. The dadan system has been in practice since a long time. The Orissa Dadan Labour
(control and Regulation) Act, 1979 explains the Dadan labourer means a person recruited on the
basis of a contract (either expressed or implied) from the state of odisha. In short state recognizes
and admits that there is the practice of Dadan Labour.
MIGRATION IN ODISHA
In Odisha, a large number of Dadan labourers were engaged in brick kiln industry. Brick
is one of the most important materials used to construct buildings in India. Brick kiln employs a
large number of labourers. The labourers engaged in the brick kiln industries are mostly the
dadan labourers brought from other part of the country. The main reasons of migration are
poverty, illiteracy, and unavailability of work, irregular wages or fewer wages.
Today, due to poverty, destitution, unemployment and debt, people who once used to be
engaged as agriculture workers are making a beeline to urban areas to work as seasonal migrant
labourers30. In India, 310 million people are reported as migrants31. In Odisha, close to 10
million people are migrants32. Both opportunity and distress migration have been quite active in
the state. Whereas the poor and marginalized people from under-developed regions in the state
are migrating under distress conditions, coastal Odisha reports large-scale migration of people
29
ACHARI, K. D. (2001). Constraints In Implementation Of Labour Laws In Defence Establishments. All India
Reporter Pvt Ltd .
30
Daniel, U. (2014). Migration and Bondage in Brick Kilns in Odisha. Labour File .
31
Census 2001
32
Aajeevika Bureau. (n.d.). Retrieved Feb 20, 2021, from https://www.humandignity.foundation/wp-
content/uploads/2018/11/Odisha-State-Migration-Profile-Report.pdf
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for better opportunities and livelihoods33.

Various surveys and attempts at enumeration in India are yet to capture the migration of
poor people leaving their villages to work in different establishments in urban centers within and
outside the state34. However, there are micro surveys and studies that suggest that migration from
rural and under-developed regions is on the rise. The Koraput-Balangir-Kalahandi (KBK) belt in
Odisha is one such region where distress migration is widely prevalent. During the late 80`s, the
then prime minister, Rajiv Gandhi, was moved to visit Kalahandi, to understand the plight of the
people of this region, who were undergoing starvation and dispossession. Kalahandi, along with
two other backward districts Koraput and Balangir have long been known for its under-
development, poor human development indices and backwardness35. The Planning Commission
of India has launched a special project known as the KBK project, keeping in mind its poor
human development, higher percentage of tribal and dalit communities, drought and human
destitution. Tribal’s and dalits are migrating in distress to various Indian cities in search of
livelihoods and means of survival. Migration to brick kilns accounts for 60 per cent of this, with
the rest moving into construction and other sectors. A well-organised labour recruitment system,
bringing brick kiln workers by paying them an advance is quite evident in these regions. Close to
1,00,000 people are being recruited across the villages of four high migration-prone districts
Balangir, Nuapada, Sonepur and Bargarh districts of western Odisha36. In 1975 and prior to the
enactment of Inter-state Migrant Workman Act of 1979, Odisha was the first to formulate a law
the Orissa DadanLabour (Control and Regulation) Act, 1975 to safeguard the rights of migrant
workers. (Dadan, in Oriya, means debt migration/bondage). Later, the Government of India took
its cue from the Act, and formulated the Inter-state Migrant Workman Act of 1979, formally
recognizing the system of Dadan and its nature. Today, in many parts of Odisha, inter-state
migration is still known as Dadan, and people still use the terminology in rural Odisha to
describe debt migration37.
From 2011 to 2013, some 1,139 brick kiln workers were rescued by both the government
administration and NGOs from brick kilns in Andhra Pradesh, Tamil Nadu and Karnataka. More
33
Daniel, U. (2014). Migration and Bondage in Brick Kilns in Odisha. LabourFile .
34
Ibid
35
36
Ibid
37
Ibid
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than 20 per cent of those released were children working in brick kilns38.
Once these hapless people are back in their respective states, immediate relief and long-
term rehabilitation becomes a huge challenge. After they return, they usually approach the local
administration for their rehabilitation. Whereas most districts have district-level Vigilance
Committees to identify and initiate the rescue of Dadan labourers, many of the nine districts to
which these people have returned do not have active and functional Vigilance Committees or the
Committee members do not have a basic understanding of the procedures and processes for
initiating rehabilitation39.
Thus, it is high time that the issue of Dadan labourers in organised sectors such as brick-
making, stone-crushing and construction came under the Department of Labour. A special
enforcement wing should conduct routine visits to ascertain the implementation of labour laws
and welfare programmes in brick kilns.
SCRUTINY OF LEGAL PROVISIONS

In order to protect the interests of the migrant labourers, there are number of legislations in India.
Though some legislation is not directly linked with Dadan, yet it has some bearing on their fate.
In this segment of the present study, the scholar briefly discuss about those laws. At the same
time, the scholar is also discussing those laws which are exclusively meant for inter-state
migration and their welfare.
In 1975 and prior to the enactment of Inter-state Migrant Workman Act of 1979, Odisha was
the first to formulate a law i.e., the Orissa Dadan Labour (Control and Regulation) Act, 1975 to
safeguard the rights of migrant workers. (Dadan, in Oriya, means debt migration/bondage). The
objective of the Act is to control and regulate the Dadan Labour Migration. Later, the
Government of India took its cue from the Act, and formulated the Inter-state Migrant Workman
Act of 1979, formally recognizing the system of Dadan and its nature. Today, in many parts of
Odisha, inter-state migration is still known as Dadan, and people still use the terminology in
38
39
Ibid
43
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rural Odisha to describe debt migration.

The Orissa Dadan Labour (control and Regulation) Act, 1975 under Chapter II, sec 4 states
that “No Person to act as agent without registration” but during the pandemic period it was
divulge that maximum person from the state is not having a valid license. Further it was also
published that the time period of registration has also been lapsed in many a cases 40. Similarly
under sec 8 it has been provided that register to be maintained by the registered agent where the
name, age, address, place of works, descriptions about the agreement is to be mentioned but it
was seen that this provision of the law is not been implemented in its true sense.
Under chapter III of this Act, conditions of recruitment and welfare of Dadan Labourer has
been provided where it is mentioned that “No agent shall recruit any Dadan labourer without
entering into an agreement with him in the prescribed form41. Under sub-section 2 of sec 9, the
act provides that the rate of wages payable to the dadan labourer shall in no case be less than the
minimum wages fixed under the Minimum Wages act. The Act also speaks that the minimum
necessities that are required to be provided to the labourer would includes suitable residential
accommodation, adequate medical facilities, protective clothing to suit varying climatic
conditions and suitable conditions of work taking into account that they have migrated from
another State. It was observed that the said provision is in the statute only; none of the state is
implementing this in their respective territory.
The Act is silent about the imposition of punishment because it is said that punishment is not
for revenge, but to lesson and reform the criminal. Thus it can be said that this act is like barking
dogs seldom bite.
Apart from the State law the Unorganized Workers’ Social Security Act, 2008 also reveals
the following drawbacks. There is no clarity in the Act as to what the state means by ‘Social
Security’ or any of the benefits it proposes.
Chapter III and IV of the Act are devoted to formation of National Social Security Board and
State Social Security Board for unorganized workers respectively. But the role performed by
these boards is only recommendatory and advisory in nature. They are not competent or
empowered to take decisions on their own. It is up to the government to accept or not to accept
the recommendations made by the board. These boards may review issues relating to
40
The Sambad, Odia Daily Newspaper
41
Sec 9(1) of Orissa DadanLabour (control and Regulation) Act, 1975
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theregistration of workers and monitor schemes notified by the government. In fact, the board
has no power, no authority over anything. Therefore, it can be said that the boards are toothless.
In addition to it these boards are also very large. These raise serious questions on the
commitment of the government about the delivery of social security benefits to the unorganised
workers.
However, the problems relating to security, sexual harassment, lack of accommodation, non-
payment of wages, child care facilities etc have been totally ignored.
The Study, after examining the Migrant Law, finds that even after half a Century of
Independence the State has failed to protect Migrant Workers and to enforce the law to any
successful extent. The Migrant Law examined in this study has not been successful for a variety
of reasons. Loopholes exist both in the Laws and in the System that help Employers and
Contractors to escape from their responsibility and obligations. To mitigate these problems, the
Government has to modify the law to protect the migrant workers.
CONCLUDING OBSERVATION
However, the study after examining and analyzing the effectiveness of migrant law and after
assessing the legal arrangements along with the Rules made there under relating to Dadan
Labour, the study leads the researcher to present some legal remedial measures in the form of
suggestions to improve the inter-state migrant law, to protect the migrant workers and to combat
the problems of migrant workers. The accompanying proposals/suggestions have been made by
the researcher.
1. After study it was revealed that the Dadan Labour was not getting wages at regular
interval. So, sec 4 & 5 of Payment of Wages Act, 1936 should be implemented in its true
sense.
2. The Concerned authority must guarantee that the dadan labours are given with the travel
allowance to visit their native place especially during the Nuakhai festival42.
3. The Act does not provide any punishment for continuing offence. This is a genuine
lacuna in the Act. Consequently, the Act ought to be revised likewise.
Therefore, from the study it can be concluded that the study strongly support that ‘Law
relating to inter-state migration (Dadan) is inadequate to protect the Dadan Labourers”. In
42
Sec 15 of Inter State Migrant workmen Act, 1979
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addition to this it is suggested that a comprehensive legislation should be enacted to provide

safety and security to the migrant (dadan) labourers.
REFERENCE
1. Aajeevika Bureau. (n.d.). Retrieved Feb 20, 2021, from
https://www.humandignity.foundation/wp-content/uploads/2018/11/Odisha-State-
Migration-Profile-Report.pdf
2. Bisoyi, S. k. (2020, Sept 30). Times of India. Retrieved Dec 20, 2020, from
www.timesofindia.com : https://timesofindia.indiatimes.com/city/bhubaneswar/8-53l-
migrants-returned-to-odisha-after-lockdown-minister/articleshow/78392115.cms
3. Daniel, U. (2014). Migration and Bondage in Brick Kilns in Odisha. Labour File .
4. Government of Odisha. (n.d.). Retrieved Jan 20, 2021, from www.agriodisha.nic.in :

https://agriodisha.nic.in/Home/StatusofAgriculture
5. Labour Exploitation Accountability Hub. (n.d.). Retrieved Jan 23, 2021, from
www.accountabilityhub.org : https://accountabilityhub.org/provision/interstate-migrant-
workmen-act-section-27/
6. (2007). The Inter-State Migrant Workmen (Regulation of Employment and Conditions of

Service) Act, 1979. In The Inter-State Migrant Workmen (Regulation of Employment and
Conditions of Service) Act, 1979. New Delhi: Universal Law Publication .
46
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ABROGATION OF CONSTITUTION: TRANSITION FROM “JUDICIAL

ACTIVISM” TO “OVERREACH”
By : Prachi Shekhawat
Abstract
An active role of Indian judiciary over the functions falling constitutionally within the legislative
competence raises certain serious and prominent issues qua ‘Judicial Activism’ in India. The
Supreme Court of India time and again has contributed to recognising to a greater extent by
directing the Indian government to seek compliance under its power of contempt, many a times
legislating just like the way legislature does.
Such occasions of legal intercession call for a need to closely scrutinize the substance and the
sacred viewpoint of the lawmaking function of judges in refinement with the intrinsically conferred
legislative powers of the legislature. Without any doubt under the set up of ‘separation of powers’,
the parliament is the official authority to enact laws, however, the judiciary while adjudicating upon
cases, do get chance to interpret various statutes and give them an actual application suitable to real
life situations, as the needs and aspiration of societies keeps on changing from time to time. Law by
its very nature is organic. Practically, every enacted law on a probing analysis reveals certain gaps
which the judiciary is expected to fill up by way of interpretation, which is popularly known as
‘Judicial Legislation’. Such filling up is however expected to be done in consonance and conformity
with the constitutional dictates and confined to the extent permitted by the Constitution which
distinguishes it from being branded as an instance of ‘Judicial overreach’. This paper is an attempt
to make an analytical study of the concept of Judicial Activism and its emergence as Judicial
Overreach. This paper concerns with the accountability of the judiciary under the constitutional
framework.
Key words: Judicial activism, separation of powers, Judicial overreach, constitutional.
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INTRODUCTION
In a diverse country like India with over 2 billion of population, various kinds of environment,
languages, religions, culture, delivering of justice is not easy and will never be an easy task. In
India democracy like the British model of parliamentary government is followed which
represents the will of the people.43 There are three distinct organs of the government namely
executive, legislative and judiciary.
The making of laws rests with legislative organ, the executive enforces them, and the judiciary
applies them to the specific cases this is known as the doctrine of separation of power. 44 As
widely accepted for any political system to be stable the power needs to be balanced off between
the holders of these organs. Dr B.R Ambedkar before the constituent assembly in his speech
stated that
“In fact, the purpose of a Constitution is not merely to create the organs of the State but to limit
their authority, because, if no limitation was imposed upon the authority of the organs, there will
be complete tyranny and complete oppression…... It would result in utter chaos.” 45
Various articles of the Indian constitution like Article 122, 212 express the doctrine of separation
of power, which requires no interference by judiciary and legislature in each other's respective
domains. Though practically it is very difficult to strictly follow the doctrine of separation minus
checks and balances.
The proactive role played by Indian judiciary over the functions falling within the legislative
authority (constitutionally), this is certain pertinent and serious questions. The Indian Supreme
Court has time and again has contributed to this at a very large scale by giving directions to
the Government of India seeking compliance under the power of content and many a times by
legislating exactly in a manner akin to the legislature. Such circumstances of judicial
43
B.N Cardozo, The Nature of the Judicial Process, (New Haven: Yale University Press, 33rd printin1974) p.94.
44
This doctrine is traceable in the writings of Aristotle, Locke but actually, we owe these principles to French
philosopher, Montesquieu, who explained it in his work L‘ESPIRIT DES LOIS in 1748. For more details
see C.K.Thakker, Administrative Law (1992) p.31.
45
From the website: http://www.legalserviceindia.com/article/l16-Separation-Of-Powers.html.
48
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intervention call for the need to closely look into the law-making aspect of judiciary whether it is
constitutionally valid and how does it differ from the legislative powers of the legislature. Since
law by its very nature is organic46 no legislative authority can foresee what will happen in the
future and the future contingency that is why judicial function attempts to address this
by enacting laws. In real life every enacted law reveals certain gaps which the judiciary has to fill
up by way of its interpretation; this is known popularly as judicial legislation. However, such
filling up is expected to be in conformity with the constitutional values and confined to the
extent allowed by the constitution of India, this is what distinguishes it from instances of judicial
overreach.
In broader sense judicial review comprises of three aspects namely:
A. Judicial review of administration,
B. Judicial review of legislative action,
C. Judicial review off judicial decisions.47
Since the very commencement of Indian constitution this doctrine has been a topic for
debate its scope and extend varies from case to case. It is believed by many that judiciary under
the disguise of interpreting the law goes a step beyond and ends up giving the country a whole
new law in itself which is usually different from the one existing.48
Are the laws made by judges?
People around the globe agree that under any constitution which is modern, Hon'ble justices 'do
make law specially judges of the constitutional courts of the country. The courts have to deliver
justice at par with the expectations of the people as well as the changing circumstances by way
of the interpretation skills. There can be seen a complete movement accorded by this Supreme
Court of India while interpreting article 21 of the Indian constitution from the case of
46
Ibid.
47
M.P.Jain, Indian Constitution Law (Wadhwa and Company Nagpur, New Delhi, 5th edition, 2003, Vol 1) p. 120.
48
Henry J.Abraham, The Judicial Process (1980) p.296.
49
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AK Gopalan49 to Menaka Gandhi.50 Further, innovations in the field of Public Interest

Litigations (PIL) have also provided thrust to the undisputable notion that judges do indeed make
law through directions.
It was argued by many commentators in the earlier days that a judge has a role of simply
discovering, applying the existing body of legal principles by a purely mechanical
procedure. These commentators Saw law as aptly said by Oliver Homes “brooding omnipresence
in the sky”.51 Although now it is a well settled concept that by extending or applying established
rules to newer circumstances, by way of altering established legal rules in accordance with the
time, the economic and social circumstances of the country.
A basic objection that arises at this stage is that the very notion of lawmaking by the judges of
India, as we know the judges in India were trained in the lines of conservative English tradition
under which they were expected to depart as little as possible from the established rules and
precedents,52 also the judiciary should not be concerned with the policy underlining
any legislation. However, it must be noted that it is impossible for a judge who unlike in England
functions under a written constitution not to make any interpretation by way of making a law, to
ensure that such policy confirms with the demands of the constitution.
AMBIT FOR “JUDICIAL LAWMAKING” UNDER THE CONSTITUTION OF INDIA
The extent of judicial creativity or innovation is the highly overpowering when it relates to
constitutional interpretation being an organic law and also the source of all laws to be made in
future. When the constitution is highly detailed the scope of judicial lawmaking narrows down
because the gaps are also lesser, in so far as it deviates from that standard, and descends into
details and particulars, it loses its flexibility and the scope of interpretation contracts, and the
meaning hardens.53
49
A.K. Gopalan v.State of Madras AIR 1950 SC 27.
50
Maneka Gandhi v. Union of India AIR 1978 SC 597.
51
Holmes J. Dissent in Southern Pacific Co v Jensen 244 US 205 (1917) at 222.
52
M.Hidayatulla, Democracy in India and the Judicial Process 71 (1965)
53
AIR 1951 SC 318
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Article 141 of the Indian constitution recognizes “Lawmaking” power of judiciary, though there
is huge misunderstanding pertaining to this article, it seems like the honorable Supreme Court is
given power to make laws for the country and it is binding on everybody which cannot be
questioned. Article 141 of the Indian constitution recognizes “Lawmaking” power of judiciary,
though there is huge misunderstanding pertaining to this article, it seems like the honorable
Supreme Court is given power to make laws for the country and it is binding on everybody
which cannot be questioned.
 Under Articles 14, 15 and 16 what classifications / provisions are legitimate and
reasonable?
 Under Article 19 which restrictions are fair and reasonable along with being in public
interest?
 Under article 21 what all comprises right to life and right to personal Liberty.
 Under article 25 and 26 what regulations are related to morality, public order and
health?
 What regulations governing minority educational institutions are reasonably related to
the need of maintaining educational standards and do not amount to an unreasonable
interference with the right of the minorities to establish and administer the institutions
of their choice.
Lawmaking by the judiciary and constitutional interpretation
Traditionally it is believed that judges find the law rather than making the law, by using the tool
of interpretation judges not only make the law but, in the process, also state what should be done.
This movement can be seen right from the decision of Golekhnath, the post Maneka Gandhi
syndrome has given a new boost making Articles 14 and 21 omnipotent for judicial law making.
In fact, what the U.S. Supreme Court has done under the commerce clause, our Supreme Court
has achieved under Articles 14 and 21 of the Constitution. After the honorable Supreme Court
passed the ruling in Maneka Gandhi case it is clear that The Supreme Court of India not
merely declares the law or applies it rather it creates the law. This way The Indian Supreme
Court has turned into an ongoing convention.
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The lawmaking of the judiciary commenced with the right to property, the first case in this
regard was Kameshwar Singh v. State of Bihar 54, after this decision the first amendment in
the constitution was made in 1951, followed by the case of State of West Bengal versus Beta
Banerjee.55
The judicial process ignored the express and intended legislative directions and created a judicial
norm. In Madhav Rao Scindhia v. Union of India56 the court held that Privy purses were property
and could not be abolished without compensation. A clear veto to the socio-economic
programmes of the government was made an electoral issue by the Congress party. This party
won the election with a thumping majority. The conflict between the legislature and the judiciary
once again started. The Twenty Fourth, the Twenty-Fifth and the Twenty-Sixth Amendments
were made to the constitution in 1971 to nullify the ruling of the Supreme Court in Golak Nath,
Bank Nationalization and the Privy Purses cases, respectively. It is notable that the judges trained
in Common Law traditions neither followed the rule of supremacy of Parliament in England nor
the judicial restraint of the US Supreme Court. In Marbury v. Madison57 the US Supreme Court
declared that “it is emphatically the province and duty of judicial departments to say what the
law is, but it did not invalidate Congressional legislation for fifty five years thereafter”.
The Constitution (Fourth Amendment Act) 1955 was blown out in Vajravelu v. Special Deputy
Collector. The Court, in this case declared the compensation “illusory” and a fraud on the
Constitution. Clearly, the court neither obeyed the rule of interpretation nor followed the
philosophy of the Constitution. It acted as a super legislature.
The Commission of crime against women has increased tremendously in the past few years. The
cases of custodial rapes have also increased however, the attitude of judiciary as not changed and
the judges have clung on to the age-old rules of interpretation of procedural laws and law of
evidence. Activism shown by judiciary in this area is rather slow, classic example of this is the
case of Tuka ram versus State58; the facts of the case are that two constables raped one girl in
Mathura, eventually they were charged with the offence of rape but were acquitted on grounds
54
AIR 1951 Pat 91.
55
AIR 1954 SC 170.
56
AIR 1971 SC 530.
57
Marbury v. Madison 2. L.ed 60 (1803).
58
AIR 1989 SC 937
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known best to the bench. This led to hue and cry in the society from all sections, it was
severely criticized. Eventually, the law was amended by criminal law amendment act 1983 along
with changes in the Indian Penal Code Section 376A, 376 B, 376 C and 376 D were added.
According to section 228A any publication of such trials requires prior authorization from the
court. S. 327 Cr. P.C. 1973 provided for in-camera inquiry and S. 114 A of the Evidence Act
makes provision for presumption as to the lack of consent in prosecutions for custodial rape etc.
Section 376 (2) of the IPC as amended, provides for a mandatory punishment of not less than ten
years imprisonment in the case of custodial rape.
In the case of State of Haryana versus Premchand59 the trial court along with the honorable High
Court punished the accused police personnel with sentence of 10 years rigorous imprisonment
for the custodial rape of the victim. But, in the appeal stage against the quantum of punishment,
the honorable Supreme Court reduced this sentence to mere five years. The reasons for reducing
the sentence and statutory necessity were more astonishing. Though the court agreed that the
offense was of serious nature and had huge repercussion on the society it, nonetheless reduce the
sentence for reasons best known to the court. Preliminary it appears that the bench was swayed
away by arguments put forward by the council for Appellant that the woman was off
questionable character an easy virtue you with lascivious and lewd behavior.
This judgment was severely criticized, after which a review petition was filed before the
Supreme Court under Article 137 of the Indian constitution11. However, the review petition also
failed. The Supreme Court failed to find any errors apparent on the face of the record and didn't
make any ruling to this effect. The Judges have neither characterized the victim Suman Rani as a
woman of questionable character and easy virtue nor made any reference to her character or
reputation in any part of the judgement. The honorable judges also clarified that the expression
conduct was used in lexie graphical meaning for the limited purpose of showing as to how they
victim behaved or conducted herself. it is most respectfully submitted that the reasoning given by
the Supreme Court, neither encourage the reduction of sentence, nor fulfills the requirement of
adequate and special reasons as envisaged by Section 376 (2) IPC. If the delay of five days is so
fatal, there does not seem any reasonable ground for punishing the accused appellants.
59
AIR 1990 SC 538
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The position of an ordinary citizen vis-a-vis the police is well-known. The gravity of the offence
is aggravated by the conduct of the police constables who had raped the prosecutrix in the police
post. If such leniency is shown, the very purpose of the law is defeated. This may justify the
killing of an accused that is suspected of murder or a dacoity. The conduct of a dacoit or
murderer can always be manipulated to be special. This will give legitimacy to police lock-up
deaths. By any standard, five days delay cannot be taken as fatal for a girl who had undergone a
trauma for sexual assault by the police personnel. She might have been dissuaded to make a
complaint for obvious reasons. Moreover, the girl came from the lower stratum of the society
and may not have been prepared for allowing the act to be a permanent stigma on her life by
publicity.
It is clear from the above mentioned that the judges have an act of will along with power of
creation of laws and not just a degree of choice. 160 With the advancement of public interest
litigation judicial activism has reached its all time high, the well established and defined rules of
procedural law have become nearly redundant in PIL world. This has brought uncertainty into
law. Moreover, an already divided court into benches has further been divided. Individual
leadership among the justices of the court is yet another outcome of public interest
litigation. Leading example to establish this is in the case of bandua mukti morcha wherein,
Hon’ble Justice Pathak held that letter without any proper format and verification should not be
entertained by the goat was sidetracked and it was asserted that even a letter written by a
nonprofit organization or an individual acting in public benefit is admissible. There is no doubt
that judicial activism is it required but it should be within a defined set of rules and
regulations. For a democracy to thrive the judicial process should not supervene the legislative
mandate or the executive authority.
The Court can take a clue from the Constitution for social and economic transformation but it
cannot usurp the legislative role. Judicial restraint, particularly in PIL cases is the need of the
hour. Justice V Khalid has given timely warning in this regard. He favours restraint on PIL not
only by the Court but also by litigants.
60
SP Gupta v. President of India, AIR 1982 SC 149.
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The process of interpretation necessarily results in law-making by interpretation of statutes and

the Constitution up to the permissible extent constitutes a purely activist category of judicial
legislations. Under this category, decisions rendered by the Supreme Court with regard to speedy
trial61, prisoner‘s rights62, preventing children from being engaged in match manufacturing63,
protection of ecology64, laying down the principle for the award of compensation65, right to
privacy66, handcuffing of prisoners,67right to free legal aid68 etc.
The court under the instances has used Art.32 for a much wider purpose than its ordinary
purpose,viz. to lay down general guidelines having the effect of law to fill the vacuum till such
time the legislature steps ;in to fill in the gap by the making the necessary law. The Court has
derived this power by reading Art.32 with Article 141and Article 142. In Union of India v.
Association for Democratic Reforms69, the Supreme Court issued certain directions to the
Election Commission that it should inter alia call for information from each candidate contesting
election on an affidavit regarding his past criminal record, his financial assets (including those of
his spouse or dependants), and his liabilities to public sector bodies and educational
qualifications, justifying this, the Supreme Court confessed:
It is not possible for this court to give any directions for amending the Act or the statutory
rules. It is for the Parliament to amend the Act and the Rules. It is also established law
that no directions can be given, which would be contrary to the Act and the Rules.
However, it is equally settled that in case when the Act or Rules are silent on a particular
subject and the authority implementing the same has constitutional or statutory power to
implement it, the court can necessarily issue directions or orders on the said subject to fill
the vacuum or void till the suitable law is enacted.
61
Hussainara Khatoon v. Home secretary, Bihar (1980) 1 SCC 98.
62
Sunil Batra v. Delhi Adminstration AIR 1980 SC 1759; Prabha Dutt v. Union of India AIR 1982 SC 6.
63
M.C.Mehta v. State of Tamilnadu AIR 1991 SC 417.
64
The Ganga Water Pollution Case (1988) SCC 41; M.C.Mehta v. Union of India (1987) 4 SCC 463; Rural
Litigation & Entitlement Kendra v. State of U.P (1985) 2 SCC 431.
65
Nilabati Behera v. State of Orrisa (1993) 2 SCC 746.
66
Kharak Singh v. State of U.P AIR 1963 SC 1295.
67
Premshankar Shukla v. Delhi Adminstration AIR 1980 SC 1535.
68
D.C Works Ltd. v. Jai Narain AIR 1957 SC 264
69
(2002) 5 SCC 294.
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Similarly basing its opinion on the same reasoning, the Supreme Court in Vishakha v. State of
Rajasthan, declared sexual harassment of a working woman at her workplace as amounting to
violation of Articles 14, 15 and 21 of the Constitution. To this effect, the court came up with
model legislation with elaborate guidelines70.
In Vineet Narain v. Union of India,71the court laid down directions to ensure the independence of
the Vigilance Commission and to reduce corruption among government servants. The court did
so since there was no legislation enacted by the Parliament to cover the said field so as to ensure
proper implementation of the rule of law.
To the same tune, in Common Cause v. Union of India,72the Supreme Court issued directions for
revamping the system of blood banks in the country. These directions provided for how blood
banks in the country.
Instances of overreach by the judiciary
In the case of Mohini Jain versus state of Karnataka,73the honorable Supreme Court held that
right to education is included within the meaning of right to life, in the last later case
of Unnikrishnan versus state of under Pradesh this was narrowed down to primary education74.In
these cases it can be rightly said that the Supreme Court overstepped it prescribed domain
constitutionally. It’s known that one of the directive principles of state policy categorically
mentions that the state has to provide free and compulsory primary education to children up to 14
years of age. It is not for the court to convert a directive principle of state policy into a
fundamental right. Moreover, even if it does so, it will merely amount to conversion of a non-
enforceable directive principle into a non-enforceable fundamental right. Further, the court said
that all private institutions shall charge different fee for half of the students. Such kind of judicial
lawmaking of a substantive nature is legally untenable. If the Parliament feels to induct such
directive principles into the fundamental rights, it is competent to do so; and to this effect it did
the same when it inserted Art.21-A into the Constitution.
70
(1997) 6 SCC 241.
71
(1998) 1 SCC 226.
72
AIR 1996 SC 929.
73
(1985) 3SCC 545.
74
(1993) 1 SCC 645.
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The recent enhancement of fines pertaining to traffic violations in Court on its own Motion v.
Union of India & Ors.75can be cited as a glaring example of judicial overreach where the Delhi
High Court, taking suo-motu cognizance of increasing death toll on Delhi roads enhanced the
traffic fines. This illustrates how the judiciary has transgressed its functions and took over the job
which falls exclusively in the domain of Parliament. On account of legitimate judicial activism,
what it could at the most do was to only reflect the need of revising the fine charges or could
have commanded the government to do so by way of issuing a writ of mandamus since
enhancement or revision of fines is purely a legislative function which can only be done by way
of an amending enactment by the legislature.
In All India Judges Association v. Union of India, the Supreme Court issued directions to the
government to create an All India Judicial Service so as to bring about uniform conditions of
service for members of the subordinate judiciary throughout the country.76This was, in fact, a
policy question requiring a constitutional amendment and the judiciary clearly overreached since
it was not proper for the Supreme Court to direct the Parliament as to what policy it should
adopt.
CONCLUSION
Law making is primarily the function of legislature however courts can exercise that power with
a confined jurisdiction. The confined jurisdiction has to be the interpretation of the particular
statute which in no circumstance be challenged. However the law may be such which has
become redundant or is inconsistent with the idea of constitutionalism or not par with societal
conscience. To replace such laws is the function of legislature. The dynamic society at times
demands for alteration and amendment in a particular law to expand its horizons and for that
purpose also the legislature becomes the correct forum. The laws which are against the societal
values sometimes create havoc for the judges.
In every judgment an accord is required. However such accord if obtained at the cost of
conviction shakes the public faith. Accord should not be bought at the expense of the litigant by
injuring his available remedy. Chief Justice Hughes once observed that the case should not only
75
139 (2007) DLT 244.
76
AIR 1992 SC 165.
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be decided by the judge but it should be decided by their wisdom which is like DNA not same in
two. By this he meant that judges cannot always have like mindedness and therefore
independence of judges is more important than bringing accord in the judgement.
A contravention in a court, according to Justice Hughes words, is an appeal of a future day,

when a later decision may possibly correct the error into which the dissenting judge believes the
court to have been betrayed. From the birth of the Indian constitution till the present day, the
most interesting as well as extravagant aspect is the power of the judiciary and its expansion
which has attained a position of dominance over the legislature and the executive.
The then Chief Justice of India said of the Indian Judiciary, “the range of judicial review
recognized in the superior judiciary of India is perhaps the widest and most extensive known in
the world of law. The Indian Supreme Court is today the most powerful of all apex courts in the
world”.
To conclude, it can be said that a law made by the courts is a legislation which is confined within
the statute. The power of making law is used as a judicial hammer to interpret the law while
deciding the conflict between the parties. Such a law is the extended hand of the law in force as
he is in a position to reach out to a consensus. However on the other hand it cannot be said that
judges are not authorized to law making in another form or nature.
To evaluate judicial activism, it has to be separated from judicial excessism as judiciary

exercises wide discretion and vision. However such exercise should not disturb delicate balance
and harmony of other pillars of the constitution. Prima facie it is the duty of the law making wing
of the constitution i.e. legislature that it should dive into the societal norms and the changing
need of the society. Laws should never become redundant or should constantly evolve with the
continuously evolving society otherwise there will be lawlessness in the society which is not the
goal of the constitution.
The three pillars of the constitution i.e. Legislature, Judiciary and Executive should thrive to
attain harmony amongst them. Furthermore, the differences are realistic approach. The ultimate
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goal of constitutionalism can only be achieved if these pillars work under the shadow of the
Indian Constitution. The Indian Constitution is a written Constitution and forms the ground
norms from which basic and ultimate principles all laws emanate and from which all the organs
of the State derive their powers. The respective pillars have been bestowed with their individual
and independent powers. This individuality should always be maintained in every case and
exercise their powers within the limits prescribed by the Constitution.
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ROLE OF ASEAN COUNTRIES IN THE PARIS AGREEMENT
By : Katyayani Jha
INTRODUCTION
Background
Climate change is a global problem and it affects everyone, but it does not affect everyone
equally. Geographic location is of course a key factor; some areas are simply more affected than
others through their physical characteristics and the interaction between local climate systems. 77
In 1992, the United Nation Framework Convention on Climate Change (UNFCCC) was adopted
as the basis for a global response to climate change.78 The main objective of the Convention was
to stablise the greenhouse gas concentration at a level that would prevent the dangerous
anthropogenic intervention in the present climate system. All those states which are parties to
this Convention are represented by the Conference of Parties (COP) and COP is basically the
supreme decision making body of the UNFCCC. Presently, there are 197 States, including
ASEAN Member States (AMS) which are parties to the UNFCCC. The Subsidiary Body for
Scientific and Technological Advice (SBSTA) is one of such body which assist the COP by
providing information and advice on scientific and technological matters related to UNFCCC.79
The Paris Agreement
In 2015 at COP21 parties to the UNFCCC came together to an agreement to deal with the
dangerous change. The main objective of the Paris Agreement was to combat the threat of
climate change by keeping a global temperature rise this century below two degrees Celsius
above pre-industrial level and to adopt such measures which limit the temperature increase even
77
Catherine Pettengell, Climate Change Adaptation, Oxfam International Research Report, Apr. 2010, available at
https://www.preventionweb.net/files/13795_rrclimatechangeadaptationfull290410.pdf.
78
What is the United Nation Framework Convention on Climate Change, United Nations Climate Change,
https://unfccc.int/process-and-meetings/the-convention/what-is-the-united-nations-framework-convention-on-
climate-change
79
ASEAN Preparatory Workshop for the UNFCCC COP22, 28th Oct. 2012, available at http://www.fao.org.
60
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further to 1.5 degrees Celius.80 The main aims is to strengthen the global climate change
response by increasing the ability of all to adapt the adverse impacts of climate change and foster
climate resilience. Further, it increases the countries abilities to deal with the adverse effects of
climate change and at making finance flows consistent with the low green house gas emissions
and to builds a climate resilient pathways. These goals can be reached by the appropriate
mobilisation and provision of financial resources, new technology framework and the financial
and technological assistance from the developed countries to the developing countries or least
developed countries (LDCs).
The Paris Agreement was signed on 22 April, 2016 in New York and thus, entered into force on
4 November, 2016.81 To this date, 187 parties have ratified of the 197 patied to the United Nation
Framework Convention on Climate Change.82 Its goal is to ensure an adequate and effective
adaptation response in the context of the goal of holding average global warming well below 2
degrees Celcius and pursuing efforts to hold it below 1.5 degrees Celcius.83 The main aim of the
parties should be to reach global peaking of greenhouse emissions as soon as possible, so that
this temperature goal can be achieved. The Paris Agreement, provides that all parties to this
framework should communicate their priorities, action plans and support or needs trough
adaptation communications. It also requires the transparency of actions by the parties,
understanding of climate change and strengthening of climate goals.84
The Paris Agreement and Nationally Determined Contributions (NDCs)
The Paris Agreement establishes a binding commitment, that all Parties should put forward their
efforts through nationally determined contributions. Article 4 of the Paris Agreement 85 provides
that all Parties of the agreement are required to prepare, communicate and maintain the
successive nationally determined contributions which it is intended to achieve by their domestic
80
United Nations Climate Change, The Paris Agreement, https://unfccc.int/process-and-meetings/the-paris-
agreement/the-paris-agreement.
81
What is Paris Agreement?, United Nations Climate Change, https://unfccc.int/process-and-meetings/the-paris-
agreement/what-is-the-paris-agreement.
82
Paris Agreement- Status of Ratification, United Nations Climate Change, https://unfccc.int/process/the-paris-
agreement/status-of-ratification.
83
United Nations Framework Convention on Climate Change, New elements and dimensions of adaptation under the
Paris Agreement (Article 7)”, https://unfccc.int/topics/adaptation-and-resilience/the-big-picture/new-elements-and-
dimensions-of-adaptation-under-the-paris-agreement-article-7.
84
Article 13, Paris Agreement (2015).
85
Article 4, para 2 of the Paris Agreement (2015).
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measures.86 Parties are required to submit or communicate their nationally determined

contributions every five years to the UNFCCC secretariat and to provide all the information
necessary for clarity and transparency. The main objective behind the submission of NDCs in
every successful five years is to achieve the long term goals specified in the Article 2 and Article
4.1 of the Paris Agreement by comparing to the previous NDC.87 All parties are requested to
submit their next round of new or updated NDC by 2020 or every five years thereafter.
ASEAN COUNTRIES AND CLIMATE CHANGE
ASEAN countries in the climate change negotiations

The Association of South-East Nations consists of ten countries such as Brunei Darussalam,
Cambodia, Indonesia, Lao’s People Democratic Republic, Mayanmar, Phillipines, Malaysia,
Thailand, Singapore and Vietnam. These regions has approximately 8.6 percent of the global
population and almost 48.2 percent of the total population resides in the urban areas.88 Today the,
world is facing the serious threat of climate change. In Paris Agreement, nations have agreed to
reduce the level of green house gas emission and ASEAN countries have also assisted in their
emission mitigation target. In, 1990, the ASEAN countries became the part of the first regional
Strategic Plan of Action on the in order to harmonise their environmental policies. Joint climate
cooperation was launched in the second half of 2000. The main objectives were to establish a
joint representation of the ASEAN countries at the UNFCCC negotiation and to work for the
harmonistaion of climate change activities at the regional level by the member countries.
According to the UN grouping, ASEAN countries are the part of various climate change
negotiations such as these countries are the members of G77 and China group, Cambodia,
Mayanmar and Lao PDR are also the member of LDC group and Malaysia, Thiland and
Philippines are also involved in the LMDC Group.89 AMS countries has jointly recognised the
importance of the climate change negotiations and they have sought to promote their common
regional interest by issuing a joint statement for the COP13, 15, 16 and 17 in the years 2007,
86
Nationally Determined Contributions (NDCs), United Nations Climate Change, https://unfccc.int/process-and-
meetings/the-paris-agreement/nationally-determined-contributions-ndcs#eq-5.
87
United Nations Climate Change, Nationally Determined Contributions (NDCs), https://unfccc.int/process-and-
meetings/the-paris-agreement/nationally-determined-contributions-ndcs#eq-5.
88
National Environment Agency, Study on cooperative MRV as a foundation for a potential regional carbon market
with ASEAN, Synthesis Report, https://unfccc.int.
89
Prof. HO Juay Choy, Mellisa Low Yu Ying, Gautam Jindal, Dora Almassy, HANDBOOK FOR ASEAN
GOVERNMENT OFFICIALS ON CLIMATE CHANGE AND SDGS, ASIA –EUROPE ENVIRONMENT FORUM,
2016, https://www.asef.org.
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2009, 2010, 2011 and 2014. However, the pre COP21 statement mainly focused on the Paris
Agenda and urged all the parties to the UNFCCC to recognise the vulnerability of ASEAN
countries to the climate change and thus, sought the importance of strengthening the adaptation
and developing climate resilient capacity in the Paris Agreement. 90 In the recent years the
ASEAN countries have also recognised the threat of climate change and the high vulnerability of
AMS to the climate change. From 2009 onwards, the ASEAN countries have emphasised a road
map to address or tackle the threat of climate change more comprehensively with the cooperation
of all sectors. In 27th ASEAN Summit in 2015, the AMS declared the their commitment to
implement the objectives enshrined in the ASEAN Action Plan on Joint response to Climate
Change and to adopt the action plans for mitigation and adaptation at the national or regional
level.91
ROLE OF ASEAN COUNTRIES IN REALISING PARIS AGREEMENT
In this section countries is reviewed in alphabetical order to provide an estimate for the
emissions gap between the baseline scenario trajectories and NDC pledges for each ASEAN
country.
Country-level analysis
Brunei Darussalam
Brunei Darussalam is a small nation which shares its boundaries with Malaysia and South China.
Its economy is mostly dependent on the revenues from the extraction, refining and export of its
oil reserves. Brunei Darussalam aims to work on realising the environmental awareness and
mainstreaming the environmental consideration by appropriate planning, assessment of natural
resources, improving the rural and urban environment and protecting the biodiversity, forests,
coastal and marine areas. It submitted its Intended Nationally Determined Contributions (INDCs)
in 2015. In the baseline scenario, it is intended to emit 14.3 MtCO2e, excluding LULUCF
emissions in the year 2035, with emissions from fossil fuel combustion contributing 98.4% of the
total greenhouse gas emissions. Its NDC describes that it will reduce its energy intensity of the
GDP by the 45% in 2035, which is corresponding to the total greenhouse gas emission target of
90
ASEAN Joint statement on Climate Change to the 21st session of the Conference of Parties to the UNFCCC
(2015), http://environment.asean.org/download/climate-change/agreement/ASEAN-Joint-Statement-on-Climate-
Change-Adopted.pdf
91
2016, https://www.asef.org/.com.
63
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10.3 MtCO2e in 2035.92 It’s NDC aims to meet its renewable energy requirements by the
through solar power and energy generation from the waste. The country also intends to make an
additional efforts to reduce the Carbon dioxide emission from the vehicles by 40% in order to
improve the fuel efficiency of the vehicle and thus, promoting the transportation by bus, walking
etc. Additionally, the Brunei Darussalam’s Land Transport White Paper encourages and
identifies various transport policy recommendations in order to increase the use of public
transport from 1% to 22% of trips by the year 2035.93
Cambodia
Cambodia is the most vulnerable to the climate change. According to the World Bank report of
2014, Cambodia is very prone to the sea level rise in the future that will pose a serious threat to
low lying coastal areas, high tides, storms, coastal erosion and seawater intrusion.94 In the
baseline scenario, Cambodia is intended to emit 15.7 MtCO2e from the energy sector in the year
2030. In the NDC of Cambodia, its target is to reduce the total greenhouse gas emission by 27%
in 2030. The Total Primary Energy Supply (TPES) of the Cambodia in 2030 will total 12,379
ktoe with 61% from biofuels and waste, 28% from oil, 8% from coal, 2% from hydro, and there
will be negligible amounts from other renewable resources. According to this report, the
electricity generation will reach at 8,178 GWh in 2030 with a generation mix of 50% coal, 44%
hydro, 5% oil, and 1% biofuels and other non-hydro renewable sources.95 The country has
adopted the use of renewable sources for the development of a national grid of connected energy
system in the country through from solar, hydro, biomass and bio-gas in order to increase the
country’s electrification ratio of its 2015 level of 65%. These policies and actions are clearly
described in Cambodia’s Climate Change Strategic Plan for the year 2014-2023.
Indonesia
Indonesia submitted its NDC on 24 September, 2015 to the UNFCCC. Its strategic plans indicate
the reduction of GHG emissions from the land use change and forestry emission by 29% below
the business-as-usual and a conditional 41% reduction below business-as-usual by the end of
92
Sergey Paltsev, Michael Mehling, Pathways to Paris: Association of Southeast Asian Nations (ASEAN),
Massachusetts Institute of Technology, https://globalchange.mit.edu/sites/default/files/P2P-ASEAN-Report.pdf.
93
Ibid.
94
2016, https://www.asef.org.
95
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year 2030. According to the APEC project in Indonesia, the baseline emission from the energy
sector will be doubled between the 2010 and 2030.96 However, the NDC of Indonesia aims to
bring back down to the level of 2010 but it is still about the 50% higher in the 2030.
Additionally, the NDC of Indonesia does not provide the detail information about the sector,
which is intended to reduce their emissions in order to reach their target. Indonesia’s National
Energy Policy, is considered as the most relevant policy which deals with the future energy
supply of the country. The main objective is to increase the use of renewable energy to 23%, as
the primary source of energy supply by the year 2025. The National Medium Term Development
Plan 2015-2019 was formulated by the Indonesia as an action plan for the reduction of GHG. It
aims to reduce the GHG emission in the five major sectors such as forest and peat lands,
agriculture sector, industrial sector, energy and transportation and waste in order to achieve the
target.97
Malaysia
Malaysia submitted its NDC to the UNFCCC in the January 2016 and it is ratified in November,
2016. The NDC of Malaysia states the reduction of greenhouse gas emission of the GDP by 45%
by 2030 in which 35% includes the unconditional basis and a further 10% is conditioned upon
receipt of climate finance, technology transfer and capacity building of the developed
countries.98 The NDC does not provide any quantified analysis about the measures of baseline
projections. According to the APEC, the emission of carbon dioxide from the energy sector is
estimated to increase from about 200 to 300 megattonnes by the 2030. Malaysia has adopted
various NDC policies to reduce the emission. The National Renewable Energy Policy and Action
Plan was adopted in 2010 to increase the use of renewable energy in the country’s development
plans and to reach the target of 11% by the year 2030. Further Eleventh Malaysia Plan 2016-
2020 is adopted by the government with the concept of sustainability. The main intention is to
reduce the Malaysia’s carbon emission by strengthening and enabling the environment for green
growth, sustainable consumption and production of resources and conservation of natural
resources.
Myanmar
96
Lew Fulton, Climate Change Mitigation Pathways for the Southeast Asia: CO2 Emissions Reduction Policies for
the Energy and Transport Sectors, Sustainability 2017, Vol.9, https://www.mdpi.com.
97
Ibid.
98
Ibid.
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Myanmar has submitted it NDC to UNFCCC in September, 2015. In the baseline scenario, the
Myanmar is expected to emit 72.8 MtCO2e excluding the contributions from land use, land-use
change, and forestry (LULUCF) and 44.9% of the total greenhouse gas emissions is contributed
from the combustion of the fossil fuels, by 2030. In the Paris Agreement, Myanmar is committed
to expand their hydropower capacity to 9.4 GW for an estimated hydro output of 16,469 GWh by
2030 and to reduce their emissions from the fossil to 20% 2030. Its mitigation action aims to
develop the hydroelectric power generation, rural electrification from the renewable sources of
energy and the efficient use of energy in the industrial sector. Myanmar’s National
Electrification Plan aims to increase the electrification of 6 million rural people by using at least
30% of renewable sources and to increase their national electrification rate from 33% in 2014 to
100% by 2030.99 In addition to this Myanmar has adopted National Climate Change Strategy and
Action Plan in 2015, with the aim to achieve the goal of sustainable development with climate
resilient and low carbon emission by 2030. Furthermore, these policies and plans make various
provisions and measures to be adopted for the sustainability projects, management plans and
impact assessment in the areas of forests, transportation, energy and other sectors.
Lao PDR
Lao PDR has submitted its NDCs to UNFCCC in October, 2015. Its NDC provides the
mitigation activities under forestry, use of renewable source of energy, rural electrification by the
use of renewable energy and the large scale generation of hydropower energy. In the baseline
scenario, the Lao PDR is expected to emit 22.5 MtCO2e by the year 2030.100 In 2011, the
government has adopted the Renewable Energy Strategy to reduce the emission of the
greenhouse gas by the use of renewable energy resources which includes increasing the share of
consumption of small scale renewable energy to 30% and the share of bio-fuels to 10% by 2020.
Furthermore, the main aim is the electrification of 90% of rural household by the use of
renewable energy in order to reduce the further emission of greenhouse gas from the use fossil
fuels in such areas. These strategies, also aim to contribute to the country’s long term national
development goals enshrined in its 8th Five Year National Socioeconomic Plan for the year 2016-
2020.101
99
100
Ibid.
101
Ibid.
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Philippines
Philippines submitted its INDC to UNFCCC in October 2015 and ratified in the year 2017. The
main target of NDC is the 70% reduction of all climate pollutants by 2030 with the help of
financial and other assistance by the international agreements. The Philippines has very less per
capita level of carbon emission which would increase 1.5 in 2030. Additionally, NDC provides
the National Climate Change Action Plan 2011-2018 which aims to the development of National
Renewable Energy Program (NREP) which seeks to increase the country’s renewable based
energy capacity by 2030. The Philippines Energy Plan 2012-2030 was formulated under the
National Renewable Energy Plan to strengthen the use and power generation from the renewable
source of energy.
Singapore
Singapore submitted its INDC to UNFCCC in July, 2015 and it was ratified in September 2016.
The NDC of Singapore aims to reduce the GHG emission by 36% by 2030. According to the
APEC projection, the carbon emission of Singapore will rise up to 10% by 2030. However,
Singapore’s NDC does not clearly specified their policy related to energy.102 NDC provides that
the country is mostly dependent on using the fossil fuels. Therefore, the country in order to
reduce the greenhouse emission, it is now encouraging the use of renewable energy for the
electricity generation and at present 90% of the Singapore’s electricity is generated from the
natural gas. Energy Conservation Act of Singapore was enacted with the aim to mandate the
energy efficiency requirements and the energy management practices to promote the
conservation of energy. Further, the government of Singapore is encouraging the use of solar
photovoltaic and its target is to green 80% of its building by 2030. It encourages household and
companies to use and invest in the energy efficient equipment and technologies such as the Grant
for Energy Efficient Technologies, or the Energy Efficiency Improvement Assistance Schemes.
Third National Communication of Singapore provides that by 2020, the energy efficiency
measures are expected to be only 1.15 MtCO2e and the other measures such as building sectors
and domestic transportation system is expected to reduce about 1.21 MtCO2e and 1.16
MtCO2e by 2020.103
Thailand
102
Ibid.
103
Ibid.
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Thailand submitted its INDC to UNFCCC in October 2015 and it is ratified in September 2016.
In the baseline scenario, by 2030, the Thailand is expected to emit 645 MtCO2e excluding the
contributions from land use, land-use change, and forestry (LULUCF) and 84.7% of the total
emission is contributed from the combustion of the fossil fuels. The NDC of Thailand aims to
reduce their greenhouse emission by 20% in 2030. Additionally, Thailand clearly stated in its
NDC that, IN 2012, 73% of its emission came from the energy and thus now its policies and
plans are more inclined towards the mitigation efforts of the energy and transport sectors of the
country.104 Thalind has adopted various plans such as National Economic and Social
Development Plan, Climate Change Master Plan 2015-2050, Power Development Plan 2015-
2036, Alternative Energy Development Plan 2015-2036, Environmentally Sustainable Transport
Syatem Plan 2013-2030, and National Industrial Development Master Plan 2012-2031 which
forms the basis of their NDCs. The main aim of Power Development Plant is to reduce the
greenhouse gas emission and increase the use of renewable sources from 8.5% in 2015 to 20%
by 2036. Similarly, Thailand’s Alternative Energy Development Plan, aims to achieve the target
of 30% of Total Primary Energy Supply (TPES) from the renewable sources of energy as
compared to 19% in 2015. Furthermore, Environmentally Sustainable Transport Syatem Plan
aims to encourage the “road to rail” mode of transportation system for both passengers and
freights. However, Thailand’s Climate Change Master Plan, aims to reduce 7-20% reduction in
the greenhouse emission from the energy and transportation system by 2020. The target of
Thailand’s NDC to achieve the 30% share of the total energy consumption by 2036 can be
achieved by the robust energy efficiency plans and regulatory policies.105
Vietnam
Vietnam submitted its INDC to UNFCCC in September 2015 and it is ratified in November
2016. The NDC of Vietnam cites the reduction of greenhouse gas emission by 8% and by 25%,
conditional on international financial support and assistance by 2030. In the baseline scenerio,
Vietnam is expected to emit 571 MtCO2e with the emission from energy sources and
104
Massachusetts Institute of Technology, https://globalchange.mit.edu/sites/default/files/P2P-ASEAN-Report.pdf
105
Lew Fulton, Climate Change Mitigation Pathways for the Southeast Asia: CO2 Emissions Reduction Policies for
the Energy and Transport Sectors, Sustainability 2017, Vol.9, https://www.mdpi.com.
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contributing 69% of the total greenhouse gas emission by 2030. Vietnam has adopted various
plans and policy measures as the basis of their NDC. In Vietnam’s Revised Power Development
Plans, the main aim is to achieve the goal of 10% renewable in electricity generation by 2030.
Similarly, National Green Growth Strategy for the period 2011-2020 is adopted with a vision in
2050 which provides the measures to reduce the greenhouse gas emission, energy consumption
and efficiency for the year 2020, 2030, and 2050. However, National Socio-economic
Development Strategy 2011-2020 provides that the target of NDCs can be achieved by
management of urban energy consumption through effective and efficient utilisation of
renewable resources.
Thus, it is very evident that ASEAN countries are highly vulnerable to the negative impacts of
climate change. With the future prospects of worsening the climate change, the ASEAN
countries must seek the common interest in the climate change negotiations and to promote their
interest.106
CONCLUSION
In this paper the researcher has reviewed the NDCs of ASEAN countries regarding their
commitments towards the Paris Agreement. Paris Agreement is the first ever universal and
legally binding climate change agreement adopted at the Paris Climate Conference in December
2015. The Paris Agreement sets out the global framework to avoid the threat of climate change
by reducing the global warming to below 2 degrees Celsius and undertaking various efforts to
limit it to 1.5 degrees Celsius. ASEAN Countries have also ratified the UNFCCC, Kyoto
Protocol and also participated in the Paris Agreement.
In the Paris Agreement, ASEAN countries committed to reduce their greenhouse gas emission
by the year 2030 and to introduce various plans and policies to achieve their target or
commitment. ASEAN countries already faced and is facing and will face a wide variety of
challenges from the climate changes. ASEAN countries are highly vulnerable to the adverse
impacts of climate change which may severely affect their socio-eceonomic development and
their political stability. Further, it is recognised that many of the most vulnerable sectors such as
agriculture, forestry, health sector and water management requires the prioritisation of the
adaptation needs in the ASEAN countries. Adaptation plans must be integrated by the ASEAN
106
Arief Wijaya, Shira Idris, ASEAN Countries Must Countries Together to Confront Climate Change, Nov.16,
2017, https://www.wri.org/blog/2017/11/asean-countries-must-act-together-confront-climate-change.
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countries into top-down and bottom up approaches for planning to enable sustainable
development and the efficient use of resources for adaptation. ASEAN countries face the major
challenge of reducing the greenhouse gas emission and the same time expanding their energy
supply in order to meet the needs of rapidly developing countries. In an aggregate ASEAN
countries are making good progress towards their goal of Paris Agreement but it still requires
the additional measures to sufficiently decrease the emission. However, some countries are
close to or even achieved their goals for 2030,while the other needs substantial additional
efforts. In order to achieve the target of reduction of greenhouse gas emission other policy
instruments are needed to promote the clean technology. Wind and solar energy provide an
attractive option for lowering the emission, basically a switch from fossil fuel to renewable
source of energy promotes lower carbon generation and enables higher penetration of
renewable energy by serving as a backup capacity of the ASEAN countries.
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CHILDREN SHOULD BE ALLOWED TO PLAY VIDEO GAMES FOR AN HOUR ON
A DAILY BASIS
By : Dhruv Mehta
“There are plenty of skills I’ve learnt from playing video games. It’s more interactive than
watching TV, because there are problems to solve as you’re using your brain” – Shaun White
Shaun White is a professional snowboarding Olympic winner. He has developed his own
snowboarding video game. Video games hold a lot of value as compare to the television as they
help exercise the mind and brain. Complex puzzles, mysteries and missions help hone
coordination, enhance decision-making skills as well as help develop lateral thinking.
Advancements in technology have led to global gaming sessions. Players can play with each
other from any parts of the world making the world of gaming more interactive and enjoyable.
Television is associated with passive watching and is a form of non-interactive entertainment.
Technological advancements, affordability and easy accessibility to an array of games has soared
the demand for video games. Children as well as adults are engrossed in video games. Akash
Rathee the founder of NODWIN games claims, “The largest monetizing user base in India on
video games and mobile games are people above the age of 50” (Sreedhar).The history of video
games turns back to the 1950’s. William Higinbotham created the first video game in the year
1958. The game fondly known, as “Pong” was associated with tennis, did not resonate with
many gamers during those times but the demand for virtual sports games have grown in recent
times(Chodos). Video games in recent times have been scrutinised and frowned upon by parents
and teachers. Violent gaming series such as the Grand Theft Auto leave a bad impact on children
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exposing them to blood, intense violence, strong sexual content and drugs (Harvard Health
Publishing). Such games leave a tarnishing impact on small children, leading them to become
violent and show signs of aggressive behaviour as stated by Claire McCarthy the senior editor of
Harvard Health Publishing. Excessive screen time leads to poor sleep pattern increasing the
chances of weight gain, heart diseases and inducing depression (Tortolero). Even though parents
and teachers detest children playing video games on a daily basis. I argue that children should be
allowed to play video games for an hour daily.
Several psychologists have contributed to “Review of General Psychology” published by
American Psychological Association portraying the side effects of violent video games and
showing them as being harmful. Dr Christopher Ferguson a professor at A&M International
University argues that many studies on media violence rely on measures to assess aggression that
do not correlate with real world violence. Such an approach does not prove the cause and effect
of violent video games and their impact. Citing data from the federal criminal justice agency, Dr
Ferguson proves that violent crimes among youths have decreased since 1996 even though the
demand of video games has soared. Dr Ferguson argues that an hour of video gaming daily
sharpens the brain aiding children to solve complex classroom problems and learn different
concepts. Video games can help budding lawyers learn concepts of law and deal with real life
cliental situations right from the first year of law school. “Do I have a right (Brown)?” helps law
students learn about constitutional amendments. The game simulates real life situations, as the
user has to build a staff of lawyer with different expertise, helping testing of knowledge and
grasping of various law concepts. Students as they graduate often forget law concepts introduced
in class. Teachers can encourage students to play such intellectual games for an hour daily at
home. This will not only help students retain difficult concepts taught in class but also make
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learning interesting and enjoyable. With the evolution of technology, teachers must capitalise on
technological and scientific advancements by adopting video games in schools. Brown
University and University of Southern California developed a video game identified as “Immune
Attack”. This educational video game supplements classroom teaching by making complex
biological and immunological topics easy for students to grasp. The game gives detail insights
about the body’s immune system, helps learn about different infections and simulates the real
working of the human body. Surveys by the Federation of American Scientists shows that
students who play immune attack showed increased levels of knowledge compared to students
who did not play the game. An hour of educational video gaming daily is associated with better
knowledge as stated by the survey (Federation of American Scientists). Professor James Gee
explains the importance of video games for various educational uses by saying, “We tend to
teach science, and for example, by telling you a lot of stuff and then letting you do science.
Video games teach the other way. They have you do stuff, and then as you need to know
information, they tell it to you.” Educators turned to video games during the Corona Virus
pandemic that led to shutting down of schools and cancelling of educational trips. Kevin
Peloquin a history teacher turned towards video games to teach Greek History. The cancelling of
the educational trip to Greece made Kevin take the help of video games to digitally tour Greece
and help his students learn about Greek history. Digital touring of the city for two hours every
day helped them continue with the course and learn something new while other students frittered
away time. Kevin emphasises that he limited the use of video games for his students to two hours
daily keeping in mind the health and adverse consequences of long exposure to video games
(Favis).
James Gee a professor in the Mary Lou Fulton Institute and Graduate School of
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Education says, “Computer games are nothing but problem solving spaces.” Gee describes the
video games environment as “situated learning” as the player solves various puzzles and
challenges in the game. These complex puzzles help the player think better and further challenge
him. Video games can aid in retaining concepts learnt at the beginning of the year as games
provide information as and when needed instead of all at once. Teachers can encourage students
to play educational video games daily. This will not only supplement learning but also help in
revising various concepts and retaining concepts taught in class. Schools and universities can
assess children with the help of gaming. Video games assess the player and provide feedback
further testing the problem solving skills in students and not memory or knowledge. Gee says,
“How do we change our assessment regime so that we favour innovation, critical thinking and
problem solving?” The advancements in gaming technology make learning enjoyable, while
testing the student’s skills and critical thinking ability (Shumaker). Taking inspiration from
modding of games educators can invite students to “mod” subjects such as science. Such
experiences help children experiment as well as learn the rules of the subject. Gee, explain that
such an activity will help students connect with the subject further increasing understanding.
Despite, such advancement parents are rightly worried that too much gaming can lead to anti-
social behaviour and peer-conflicts. The American Academy of Paediatrics suggests maximum
one hour of gaming for children. An hour of gaming can help elevate the mood of teenagers and
children. Research proves that short periods of video gaming such as an hour aids in changing
brain activity and improving attention skills (Shumaker). Dr. Jesus Pujol of the Hospital del Mar
in Barcelona explains, “One to nine hours of video gaming per week seems to be safe.”
According to Dr. Pujol parents must supervise the amount of time their children spend on video
games. He recommends parents to allow their children to game for one hour on weekdays and
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two hours on weekends as excessive gaming over fifteen hours a week can lead to gaming
addiction, which can have detrimental impact on a child’s health. According to the study
conducted by Dr. Pujol children who played video games for an hour on a daily basis had faster
motor responses and had better involuntary responses than non-gamers (Rapaport). Another
study points to the benefits of video gaming for an hour on a daily basis. Andrew Pryzybylsky
published the article “Electronic Gaming and Psychosocial Adjustment (Pryzybyls)” which
explains the impact of video gaming on children and how video games affect children’s
health. He explains that an hour of video gaming every day elevated the mood of children
making them happy and satisfied. Excessive video gaming may lead to eye problems in children.
Parents often being worried about such issues restrict children from playing video games
completely. Parents must impose the “two hour rule”. Various campaigns such as “Healthy
People 2020” encourage parents to limit screen time of children to two hours per day. If parents
impose, the two-hour rule children can enjoy their favourite video game for an hour leaving an
hour as spare time for other activities such as video chatting with friends or watching television.
Such practices by parents keep their children happy as well as ensure that their children have
enough time for physical activities, academics and socialisation hence; ensuring video games do
not have an adverse effect on their child’s health (Steinkuehler 359).
The World Health Organisation has classified “gaming addiction” as a mental health disorder
since 2018 due to the rise in gaming addiction. Gaming addiction has led to suicidal tendencies
among children. During the lockdown due to the pandemic, a fourteen-year old child known as
Sriram locked himself in a room for his parents prevented him from playing video games. The
addiction to video games caused him to take the drastic step of taking his life (Boda). The online
classes during the COVID-19 pandemic have increased online gaming. Dr Arun a Kochi based child
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psychologist says “Many children, after logging in and marking attendance for virtual classes,
open gaming windows and play while classes are on. The option to shut the class audio and
video has become very convenient (Varghese).” Parents can adopt the one-hour rule for their
children. They can restrict their children to play video games for one hour only. This will lead
children being content with playing video games as well as reduce their screen time. Japanese
authorities have introduced a new gaming law that limits gaming time for children under the
age of eighteen, to sixty minutes on weekdays and ninety minutes on weekends (Peppiatt).
The imposition of the law was due to the rising rate of gaming addiction in Japan. The law
will help restraint the exposure to video games and help reduce gaming addiction among
children. Despite, being the largest video game market in the world, Chinese authorities
imposed gaming laws and regulations for children and young adults. Gaming curfews in
China restrict game time and the number of gaming accounts per child (Video game addiction:
China imposes gaming curfew for minors).
Video gaming has been a persistent worry for parents. Parents can ensure that their children
play only one hour of video games on a daily basis. Educational video games can help explain
complex educational courses easily. Educational institutes in India must take advantage of
technological advancements by turning to video games to explain complex concepts.
Advancements in gaming technology can aid teachers by making subjects such as Law,
English, History and Science more realistic and interesting. Video game addiction has
increased all around the world, especially in India. Misuse of technology during the corona
virus lockdown has led to adverse consequences for children. The Indian government must
take inspiration from Chinese and Japanese gaming laws. Regulating gaming and imposing
strict rules can help discipline children. The Indian government can regulate the sale of video
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games and the number of video gaming accounts. Educating parents and children about the
benefits and adverse effects of video games will help control the addiction. Excessive video
gaming can have adverse effects on a child’s health but an hour of video gaming on a daily
basis has a positive effect on a child’s health as proven by various theorists.
Works Cited
1. Sreedhar N, “In the World of Video Games, These Senior Gamers Show That Age Is Just
a Number” (mintSeptember 21, 2020) <https://www.livemint.com/mint-
lounge/features/in-the-world-of-video-games-these-senior-gamers-show-that-age-is-just-
a-number-11600639700651.html> accessed December 9, 2020
2. “October 1958: Physicist Invents First Video Game.” Edited by Alan Chodos, American
Physical Society, 2020, www.aps.org/publications/apsnews/200810/physicshistory.cfm.
3. Rapaport, Lisa. “Parents Think Teens Spend Too Much Time Playing Video Games.”
Reuters, Thomson Reuters, 20 Jan. 2020, www.reuters.com/article/us-health-teens-
gaming-idUSKBN1ZJ25M.
4. Publishing, Harvard Health. “Violent Video Games and Young People.” Harvard Health,
2010, www.health.harvard.edu/newsletter_article/violent-video-games-and-young-
people.
5. Tortolero, Susan ` R. “Daily Violent Video Game Playing and Depression in ...” Daily
Violent Video Game Playing and Depression in Preadolescent Youth, 2014,
www.researchgate.net/publication/263778852_Daily_Violent_Video_Game_Playing_and
_Depression_in_Preadolescent_Youth.
6. Brown, Tyson. “Do I Have a Right?” National Geographic Society, 28 June 2019,
www.nationalgeographic.org/interactive/do-i-have-right/.
7. Federation of American Scientists. "Fixing The Education Digital Disconnect One Video
Game At A Time: FAS Launches Immune Attack." ScienceDaily. ScienceDaily, 26 May
2008. www.sciencedaily.com/releases/2008/05/080522090248.htm
8. Favis, Elise. “With Coronavirus Closing Schools, Here's How Video Games Are Helping
Teachers.” The Washington Post, WP Company, 17 Apr. 2020,
www.washingtonpost.com/video-games/2020/04/15/teachers-video-games-coronavirus-
education-remote-learning/.
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9. “Educational Video Games.” The Science Teacher, vol. 77, no. 4, 2010, pp. 18–19. JSTOR,
www.jstor.org/stable/24145444. Accessed 13 Dec. 2020.
10. Shumaker, Camilla. “One Hour of Video Gaming Can Increase the Brain's Ability to
Focus.” University of Arkansas News, University of Arkansas, 14 Feb. 2018,
news.uark.edu/articles/40981/one-hour-of-video-gaming-can-increase-the-brain-s-ability-
to-focus.
11. Rapaport, Lisa. “How Much Video Game Time Should Kids Get?” Reuters, Thomson
Reuters, 15 Sept. 2016, www.reuters.com/article/us-health-videogaming-children-brains-
idUSKCN11L2PN.
12. Pryzybyls, Andrew. “Electronic Gaming and Psychosocial Adjustment.” 2014,

pediatrics.aappublications.org/content/pediatrics/early/2014/07/29/peds.2013-
4021.full.pdf.
13. Steinkuehler, Constance. “Parenting and Video Games.” Journal of Adolescent & Adult
Literacy, vol. 59, no. 4, 2016, pp. 357–361., www.jstor.org/stable/44011284. Accessed 14
Dec. 2020.
14. Varghese, Anuja. “Covid Curbs, Virtual Classes Lead to Gaming Addiction among
Children.” The New Indian Express, The New Indian Express, 24 Sept. 2020,
www.newindianexpress.com/cities/kochi/2020/sep/24/covid-curbs-virtual-classes-leadto-
gaming-addiction-among-children-2201054.html.
15. Boda, Tharun. “Lockdown Brings Spotlight on Online Gaming Addiction.” The Hindu,
The Hindu, 20 July 2020, www.thehindu.com/news/national/andhra-pradesh/not-all-fun-
games/article32132643.ece.
16. Boda, Tharun. “Lockdown Brings Spotlight on Online Gaming Addiction.” The Hindu,
The Hindu, 20 July 2020, www.thehindu.com/news/national/andhra-pradesh/not-all-fun-
games/article32132643.ece.
17. “Video Game Addiction: China Imposes Gaming Curfew for Minors.” BBC News, BBC,
6 Nov. 2019, www.bbc.com/news/world-asia-50315960.
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MALICIOUS PROSECUTION
By : Rachit Sharma
ABSTRACT
Putting a person through tedious and lengthy prosecution, when he has allegedly committed an
offence, is extremely tiresome and often affects individuals physically, mentally and financially
as well. When these prosecutions are done with malicious intent either to hurt the reputation of
the individual or because of any previous vendetta, it becomes Malicious Prosecution and is
considered a wrong which may arise a tortuous liability, the person has the right to get adequate
remedy from the court.
Malicious Prosecution has been prevalent from a very long time with many judicial
pronouncements elaborating on the essentials which must be there in the cases of malicious
prosecution and for which a person can seek relief.
The paper talks about the definition of the Term ‘Malicious Prosecution’ and how it originated
by citing relevant case laws. The paper also talks about Distinction between False Imprisonment
and Malicious Prosecution as both might seem similar, but are completely different from each
other.
Key Words: Malice, False Imprisonment, Probable Cause, Prosecution
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INTRODUCTION
In attempting to safeguard the judicial process from misuse by litigants, the tort of malicious
prosecution has historically provided that those who are the subject of groundless and unjustified
proceedings must be given a means of redress against prosecutors. While the impetus for the
development of the tort has largely arisen as a result of private litigation
The history of malicious prosecution can be traced back to the writ of conspiracy which was in
existence as early as Edwards I’s reign. This fell into decay in the 16th century, partly because
the writ of maintenance supplanted it. The gap was filled by an action on the case which
appeared in Elizabeth I’s reign and eventually came to be known as action for Malicious
Prosecution. The tort was later put on a firm footing in 1698 in Saville v. Roberts107.
The tort of malicious prosecution has the highest frequency in Indian tort litigation, and from
1914 to 1965, the cases of malicious prosecution came to 184, while the total number of tort
cases were 613. This tort now contains more than 25% of Tort Litigation.
Malicious prosecution is a common law intentional tort, while like the tort of abuse of process.
Malicious prosecution consists in instituting unsuccessful criminal proceedings maliciously and
without reasonable and probable cause. When malicious prosecution through criminal
proceedings causes actual damage to the party prosecuted, it is a tort for which he can bring an
action.
Malicious prosecution is the malicious institution of unsuccessful criminal or bankruptcy or
liquidation proceedings against another without reasonable or probable cause. This tort balances
competing principles, namely freedom that every person should have in bringing criminals to
justice and the need for restraining false accusations against innocent persons. Malicious
prosecution is an abuse of the process of the court by wrongfully setting the law in motion on a
criminal charge. The foundation lies in the triangular abuse of the court process of the court by
wrongfully setting the law in motion and it is designed to encourage the perversion of the
machinery of justice for a proper cause the tort of malicious position provides redress for those
107
1698 1 Ld. Raym. 374
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who are prosecuted without cause and with malice. In order to succeed the plaintiff must prove
that there was a prosecution without reasonable and just cause, initiated by malice and the case
was resolved in the plaintiff’s favor. It is necessary to prove that damage was suffered as a result
of the prosecution.
According to Underhill, the tort of malicious prosecution consists in "instituting unsuccessful
criminal proceedings maliciously and without reasonable or probable cause," which causes
actual damage to the party prosecuted, as a natural consequence of the prosecution complained
of.
In Saville v. Roberts108, Halt CJ classified damage for the purpose of this tort as of 3 kinds, any
of which might ground the action. Malicious prosecution might damage-
a. A person’s fame (i.e., his character)
b. Safety of the person
c. Security of his property by reason of his expense in repelling and unjust charge
MEANING OF MALICIOUS PROSECUTION

Malicious prosecution is the malicious institution against another of an unsuccessful criminal,
bankruptcy or liquidation proceeding, without reasonable or probable cause. It is also known as
‘abuse of process’, that is, abuse of process of law for personal interest.
A malicious Prosecution is defined as ‘a judicial proceeding instituted by one person against
another, from wrongful or improper motive and without probable cause to sustain it’ It is said to
be ‘a prosecution on some charge of crime which is willful, wanton or reckless or against the
prosecutor’s sense of duty and right, or for ends he knows or is bound to know are wrong and
against the dictates of public policy.’
The Apex Court in West Bengal State Electricity Board v. Dilip Kumar Ray109, explained that
there were two essential elements for constituting a malicious prosecution:
• That no probable cause existed for instituting the prosecution or suit complained of.
• That such prosecution or suit terminated in some way favourably to the defendant therein.
Once, a wrongful criminal or civil proceeding instituted for an improper purpose and without
108
ibid
109
AIR 2007 SC 976
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probable cause, has ended in the defendant’s favour, he or she may sue for tort damages termed
as malicious use of process. Distinguishing between “an action for malicious prosecution and an
action for abuse of process”, the Supreme Court explained that:
A malicious prosecution consists in maliciously causing process to be issued, whereas an abuse
of process is the employment of legal process for some purpose other than that which it was
intended by the law to affect the improper use of a regularly issued process.
The court illustrated that the institution of vexatious civil proceedings known to be groundless
was not abuse of process but was governed by substantially the same rules as the malicious
prosecution of criminal proceedings.
Where the averments made in plaint are extremely vague, lacking in details, no specific
averments regarding malicious prosecution are made or no issues are framed nor any evidence is
led to that effect, then the remedy for malicious prosecution would not lie.
Malicious Prosecution consists in instituting unsuccessful criminal proceedings maliciously and
without reasonable and probable cause. When such prosecution causes actual damage to the
party prosecuted, it is a tort for which he can bring an action.
The law authorizes persons to bring criminals to justice by instituting proceedings against them.
If this authority is misused by somebody by wrongfully setting the law in motion for improper
purpose, the law discourages the same. To prevent false accusations against innocent persons, an
action for malicious prosecution is permitted.
ESSENTIALS OF MALICIOUS PROSECUTION

The plaintiff has to prove the following essentials in a suit for damages for malicious
prosecution:
1. That the defendant prosecuted him
2. The prosecution ended in his favor
3. The prosecution lacked reasonable and probable cause
4. The defendant acted with malice
5. The plaintiff suffered damage to his reputation or to the safety of person or to security of
his property
1. Prosecution
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It is not necessary that the defendant has to be the prosecutor. The defendant, though, should in
substance be the person responsible for the prosecution being brought. Thus, there are two
elements involved herein:
a. Plaintiff was prosecuted
b. Defendant was the prosecutor
To prosecute is to set the law in motion by an appeal to some person clothed with judicial
authority in regard to that matter, i.e., the defendant should set the Magistrate in motion. An
investigating officer will not be liable unless he was party to the falsity of the case. Similarly, no
witness or pathologist who acts in good faith can be held liable.
In Martim v. Watson110, it was laid down that where a person falsely and maliciously gives a
police officer information indicating that some person is guilty of a crime and is further willing
to give evidence in Court, he is clearly the prosecutor in the case.
Moreover, Proceedings before police authorities is no prosecution. The court, in Nagendra Nath
111
Ray v. Basanta Das Bairagya held that police proceedings and prosecution are not the same
thing. The same thing was accorded in Bolandanda pemmayya v. Ayaradara112 by Karnataka
High Court.
2. Favorable termination of the prosecution

The plaintiff must show that the prosecution ended in his favour, which can take place due to
various reasons like:
a. A verdict of acquittal
b. By discontinuance of the prosecution by leave of the Court
c. By quashing of the indictment for a defect in it
d. By corium non judice proceedings
There has been significant change in law in this area:
In Reynolds v. Kennedy113, Court held that there can be no action if the plaintiff had been
convicted, even if the conviction was later appealed.
The law does not regard the above principle in today’s scenario.
110
1995 3 All ER 559
111
I.L.R. (1929) 47 Cal. 25
112
AIR 1966 Kant 13
113
43 Cal. 643, Cal. Supreme Court (1872)
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Shiv Shanker Patel v. Phulki Bai114 Plaintiff faced criminal prosecution for 8 years for theft of
crops because of wrongful prosecution in fact of point. Rs. 10,000 was paid as damages for loss
of reputation and mental agony.
3. Lack of Reasonable and Probable Cause

In order for there to be a reasonable and probable cause, following conditions have to be
satisfied:
 An honest belief of the accuser in the guilt of the accused
 Such belief to be based on an honest conviction of the existence of circumstances which
led the accused to that conclusion.
 Belief is on such grounds as would lead any fairly cautious man in the defendant’s
situation to believe so.
 Circumstances so believed by the accuser must be such as amount to a reasonable
ground for belief in the guilt of the accused.
In Abrath v. North Eastern Railway115, the court laid down 3 principles necessary to form a
reasonable & probable cause:
 Person complaining took due care to be informed of the facts
 He honestly believed his allegations to be true
 The facts were such as to constitute prima facie evidence
The same was reiterated in Feroz-ud-Din v. Mohammed Lone 116by the J&K High Court.
4. Malice
The prosecution was instituted with malice, i.e., with an indirect and improper motive and not in
furtherance of justice. The bringing of false charge to the knowledge of the prosecutor indicates
malice as per the law which is not sufficient to support a civil action.
In Antarajami Sharma v. Padma Bewa117, The Orissa High Court held that in cases of Malicious
Prosecution, onus of proof of absence of reasonable and probable cause rests on the plaintiff. But
114
2007 (2) CGLJ 100.
115
(1886) 11 App Cas 247
116
Civil Second Appeal No. 29 of 1974
117
AIR 2007 Ori. 107.
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if accusation against plaintiff is that the other party saw him doing that act, then it would be
presumed that there was no reasonable or probable cause for such accusation.
Hicks v. Faulkner118 If the defendant has honestly and bona fide instituted the prosecution, he is
not liable even though due to a defective memory, he had forgotten the true facts and has gone
on with the prosecution.
State of Tripura v. Shri Hardhan Choudhary119 Forest officials filed cases against plaintiff for
felling trees without any evidence. Plaintiff was acquitted and was rewarded Rs. 25,000 for
malicious prosecution.
5. Suffered damage in person, reputation or pocket

This requirement is mainly applicable only under English law. In India, it is only applicable for
aggravated damages.
It has also to be proved that the plaintiff has suffered damage as a consequence of the
prosecution complained of. Even though the proceedings terminate in favour of the plaintiff, he
may have suffered damage as a result of the prosecution.
Damage is the gist of the action and in Mohammed Amin v. Jogendra Kumar120, the privy council
said:
To find an action for damages for malicious prosecution based upon criminal proceedings, the
test is not whether the criminal proceedings have reached a stage at which they may be correctly
described as a prosecution; the test is whether such proceedings have reached the stage at which
damage to the plaintiff results.
In Het Ram v. Madan Gupta121, Plaintiff was maliciously charged by defendant for setting fire to
his house. Plaintiff was acquitted and rewarded Rs. 55,000 for mental agony, loss of business
and litigation expenses.
In a claim for Malicious Prosecution, the plaintiff can thus claim damages on the following three
counts:
a) Damage to the plaintiff’s reputation
b) Damage to plaintiff’s person
118
1878 8 QBD 167 171
119
AIR 2006 Gau 181
120
(1947) 49 BOMLR 584
121
2006 (2) ShimLC 354
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c) Damage to plaintiff’s property
DISTINCTION BETWEEN FALSE IMPRISONMENT & MALICIOUS PROSECUTION

1. In the case of false imprisonment there is an important element of total restraint of
personal liberty without lawful justification. But in the case of malicious prosecution
there is the element of causing damage by means of an abuse of the process of Court.
2. In False Imprisonment, individual liberty of the plaintiff is wrongly restrained by a
private individual’s legal action whereas in the case of malicious prosecution, the arrest
of plaintiff is obtained with the help of judicial sanction
3. The onus of pleading and proving affirmatively the existence of reasonable and probable
cause as justification lies on the defendant in the case of false imprisonment. But in the
event of an action of malicious prosecution the plaintiff is to allege and prove
affirmatively its non-existence.
4. In an action for false imprisonment, it is not required to prove malice whereas in
malicious prosecution the plaintiff has to prove that the defendant acted with malice.
5. Damage is not the essence of false imprisonment whereas in an action for malicious
prosecution, damage is said to be the essence of it.
CONCLUSION
In the case of Vishweshwar Shankarrao Deshmukh and Anr v. Narayan Vithoba Patil122, The
plaintiff was the sarpanch of the village Shirputi in the year 1980 and the defendant no. 1 was in
the service as a Gram sewak under the Zila Parishad and the defendant no.2 was a teacher in a
school run by the Zila Parishad. The plaintiff contended that he made several reports against the
defendants for their misconduct. The report was made against defendant no.1 for his
misbehavior, defalcation and forgery of accounts and also against defendant no.2 for his
absence from duties and other irregularities. It is contended that both the defendants then
hatched a conspiracy to involve the Plaintiff in a criminal conspiracy and such that the
defendant no.1 had lodged an F.I.R. with the police that was assaulted by the plaintiff while he
was discharging his duties. On the basis of the F.I.R and investigation done by the police;
criminal proceedings were launched against the plaintiff. The plaintiff was acquitted of the
122
2005 (2) BomCR 491
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charges against him. Itis contended that on the basis of the F.I.R. lodged by the defendant no.1,
plaintiff was arrested but the police and the criminal proceeding against him was with malicious
intention on the part of the defendants. The prosecution was launched without any reasonable
cause and due to the false prosecution, there was a loss to his prestige and reputation and his
status was lowered down in the society being a sarpanch and a politician. The court held that the
plaintiff was maliciously prosecuted by the defendants without any reasonable and probable
cause, and therefore they are liable to pay damages worth Rs 12,500.00 to the plaintiff.
Malicious prosecution is an abuse of the process of the court by wrongfully setting the law in
motion on a criminal charge. In order to succeed the plaintiff must prove that there was a
prosecution without any just and reasonable cause, initiated by malice and the case was decided
in the plaintiff’s favour. It is necessary to prove that damages were incurred by the plaintiff as a
result of the prosecution. The burden of proof rests on him. He has to prove the existence of
malice.
Malice may be proved by previously stained relations, unreasonable and improper conduct like
advertising the charge or getting up false evidence. Though mere carelessness is not the per se
proof of malice, unreasonable conduct like haste, recklessness or failure to make enquiries
would be some evidence. Malicious prosecution is the malicious institution of unsuccessful
criminal or bankruptcy or liquidation proceedings against another without reasonable or
probable cause. This tort balances competing principles, namely freedom that every person
should have in bringing criminals to justice and the need for restraining false accusations
against innocent persons. Malicious prosecution is an abuse of the process of the court by
wrongfully setting the law in motion on a criminal charge. It is an effort to disturb the proper
functioning of the judicial machinery.
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THE WTO DISPUTE SETTLEMENT MECHANISM- AN ANALYSIS
By : Anuroopa D
CHAPTER 1
1.1 INTRODUCTION:
After the World War II the leaders of the allied countries started deliberating a world post the
war which is not characterized by economic isolationism.123 The economic discriminations and
trade barriers with the rise of dictatorships has resulted in the II World War. This led to the
Bretton Woods conference and the development of International Monetary Fund and the World
Bank in 1944. But many of the developed nations wanted a trade agreement which removes the
trade barriers. More over the post war planners also wanted a Multilateral Trade Organisation.
The United States pitched in a proposal for the establishment of an International Trade
Organisation. But in 1950 the United States announced that it would not seek a congressional
approval for the ITO charter. The other states did not ratify the charter as the USA refused to
obtain a congressional approval for the ratification. In 1947 United States invited countries to
negotiate a trade agreement. 123 set of negotiations took place for a period of six months on
different products of trade. This resulted in successful tariff cutting. The General Agreement on
Tariffs and Trade came into effect in 1948. The 1947 Geneva negotiations for GATT were
followed by seven additional negotiations called rounds which included more participants which
acceded to the GATT.
Initially the dispute settlement in the GATT was a form of conciliation. In 1948, in a dispute
between Netherlands and Cuba on the issue of MFN was decided by the chairman. Later the
disputes between the parties to the GATT were referred to the working committee consisting of
the interested parties. Then came the process of referring the disputes to the panel consisting of
neutral members. There was no specific procedures for the dispute settlement in GATT. Article
XXII states that each contracting party must afford adequate opportunity to other parties for
consultation. Article XXIII provided that if the benefits accruing to a contracting party is being
123
World Trade and the law of GATT, Bobbs-Merill, 1965
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affected by the actions of another party then the contracting party could make representations to
the that other party. If it does not lead to a satisfactory then the matter can be referred to the
contracting parties of the GATT who will investigate and make recommendations. The
contracting parties of GATT can also authorize the suspension of the concession by the
contracting party to the other party. Thus there were no specific procedures and any action to be
taken must be approved by all the contracting parties.124
The losing parties in the dispute often blocked the GATT panel reports. More over the panels
themselves formed working procedures. Thus later the Uruguay round led to the establishment of
WTO in the year 1995. The dispute settlement mechanism is the cornerstone of WTO. The
World Trade Organisation which was established through the Marrakesh agreement consists of 4
Annexes. Annex 2 to the Marrakesh Agreement consists of the “Understanding on Rules and
Procedures governing the Settlement of Disputes”.
1.2 AIMS AND OBJECTIVES:
The paper aims to with the procedures of the DSB and rulings of the body with regard to the
jurisdiction and applicability of laws, administration of evidence, due process in DSU, amicus
curiae participation and the compliance mechanism. The major problems in the dispute
settlement mechanism of WTO are also dealt in the paper. The paper also focuses upon the
utilisation of the DSB by developing countries.
CHAPTER 2
2.1 SOURCES OF WTO LAW
Article 38 of the ICJ statute establishes the sources of international law. According to Article 38
the sources include 1. International conventions and treaties which is binding on the states that
are parties to such agreements 2. International customary law 3. The General principles
recognized by civilized nations 4. Judicial decisions and teachings of highly qualified publicists.
Therefore the fundamental source is the covered agreements that consists of the Marrakesh
agreement establishing the WTO, the annexes to the Marrakesh agreement and the legal
instruments and agreements referred to in the Dispute Settlement Understanding. Article 7 125 and
124
Article 40 of the Vienna Convention on the Law of Treaties.
125
Terms of Reference of panels: “To examine, in the light of the relevant provisions in (name of the covered
agreement(s) cited by the parties to the dispute), the matter referred to the DSB by (name of party) in document ...
and to make such findings as will assist the DSB in making the recommendations or in giving the rulings provided
for in that/those agreement.
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3.2126of the DSU also points out the sources of WTO law. The term covered agreements in
Article 7 means all multilateral WTO agreements annexed with the Marrakesh Agreement. The
international agreements reflected in the covered agreements are also fundamental sources of
WTO law.
INTERPRETATION OF COVERED AGREEMENTS
The Appellate Body in the case of Japan Taxes on Alcoholic beverages127 held that the proper
interpretation of article is first of all textual interpretation. The WTO panels and Appellate Body
has in many cases observed that the Vienne Convention on the Law of Treaties is relevant to the
interpretation of WTO agreements. In the US-Gasoline128 the appellate body observed that
Article 31 and 32 of the VCLT has attained the status of general international law. Pursuant to
Article 3(2) of the DSU the panels and the appellate body must apply the customary rules to
clarify the provisions of the covered agreements. Article 31 of the VCLT states that a treaty must
be interpreted in accordance with the original meaning of the terms and also in light of the object
and purpose of the treaty. Article 32 is a supplemental means of interpretation which also
includes the travaux preparatories
TRAVAUX PREPARATORIES
The history of negotiations is called as travaux preparatories. Many developed nations argue that
the cannot be considered as a source as not all parties participate in the negotiations and also
because no concrete conclusion is obtained from the negotiating history. In case there is an
ambiguity in the interpretation of provisions article 31 of the VCLT is applied and Article 32 is
far less resorted when compared to Article 31 as it is a supplementary means of interpretation. In
Canada Pharmaceuticals129 case the negotiating history was looked into by the panel. In
Canada Diary130 the Appellate Body found that Canada’s schedule of Commitments under the
Agreement on Agriculture was not clear and hence resorted to supplementary rules of
126
The Members recognize that it serves to preserve the rights and obligations of Members under the covered
agreements, and to clarify the existing provisions of those agreements in accordance with customary rules of
interpretation of public international law.
127
Appellate Body Report,Japan – Taxes on Alcoholic Beverages, WT/DS8/AB/R, WT/DS10/AB/R,
WT/DS11/AB/R, adopted 1 November 1996.
128
Appellate Body report (WT/DS2/AB/R), WT/DS4/AB/R
129 Canada-Patent Protection of Pharmaceutical Products, Report of the Panel, WTO, WT/DS114/R
130
Appellate Body Report,Canada – Measures Affecting the Importation of Milk and the Exportation of Dairy
Products, WT/DS103/AB/R.
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interpretation under Article 32 of the VCLT. Similarly in EC Chicken Cuts case131, Brazil
challenged the EC’s unilateral decision to change the tariffs. But EC claimed that domestic court
passed a law even before the conclusion of the WTO agreement. The panel looked into the
negotiating history and the decision of the domestic court as the supplementary means of
interpretation.
ADOPTED GATT REPORTS:
Article XVI of the WTO agreement specifies that the WTO shall be guided by decisions
procedures and customary practices followed by the GATT. The panel in the Japan Alcoholic
Beverages II132 case relied upon the GATT adopted panel report and stated that it had the status
of judicial decisions. But the Appellate Body ruled that the decision to adopt a panel report is not
a decision but it is a part of GATT Acquis. The Appellate Body thus observed that adopted panel
reports does not have definitive interpretation and hence there is no rigid stare decisis in WTO.
UNADOPTED GATT REPORTS:
The Appellate Body in Japan Alcoholic Beverages II held that unadopted panel reports of GATT
have no legal status. It also noted that the reasoning in the unadopted panel reports can be used
as a guidance. The unadopted panel reports were used as a guidance in numerous instances. Thus
both the adopted and unadopted panel reports have only a persuasive value and is not legally
binding.
WTO PANEL AND APELLATE BODY REPORTS:
Adopted WTO panel reports create legitimate expectations among the members of WTO and
hence can be considered relevant in a dispute but the adopted WTO also has a persuasive value
and is not binding. In India Patents-EC133 the panel held that the decisions of WTO panels and
Appellate Body is not binding even if the subject matter is same. But the reasoning in the reports
can be taken into account by the panels and Appellate Body. More over at the same time
importance must be given to Article 3.2 of the DSU which states that the role of WTO dispute
settlement is to provide security and predictability in the multilateral trading system. Thus the
adopted WTO reports have strong persuasive power even though it is not binding.
131
European Communities - Customs Classification of Frozen Boneless Chicken Cuts, Brazil and Thailand v
European Communities, Appeal, WT/DS269
132
Panel Report,Japan – Taxes on Alcoholic Beverages, WT/DS8/R, WT/DS10/R.
133
Panel Report,India – Patent Protection for Pharmaceutical and Agricultural Chemical Prod-ucts–Complaint by
the European Communities, WT/DS79/R.
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CUSTOM
Article 3.2 of the DSU states that customary international law applies to clarify the provisions of
the agreements. Article 31 and 32 of the VCLT has been held to codify customary international
law on this subject.134In EC hormones135 case a question as to whether the precautionary
principle is a part of customary international law was dealt by the Appellate Body. It observed
that the principle of precaution has crystallised and obtained the status of customary
environmental law but still it is not a part of general customary international law. In Korea
Procurement case136 the panel held that customary international law applies to the extent that
there is no conflict between the customary law and WTO covered agreements.
GENERAL PRINCIPLES OF LAW
The Panels and the Appellate Body in many cases applied general principles of law to support
their reasoning. In US Shrimp case137 the Appellate Body observed that GATT Article XX
which is an expression of the principle of good faith is a general principle of international law. In
US-FSC case138 it was held that Article 3.10 of the DSU commits the members of WTO if a
dispute arises to engage in dispute settlement procedures in good faith. This is another
manifestation of the general principles of international law in the DSU. In US- Softwood
lumbar139case the principle of estoppel was applied. The US and Canada before the panel
entered into a MOU which prevents them from initiating further action. Therefore the principle
of estoppel applies which prevents US from initiating further action under the Panel or the
Appellate Body. This principle was also applied in the Argentina Poultry case.140
134
Panel Report EC Hormones case
135
United States - Continued Suspension of Obligations in the EC - Hormones Dispute, European
Communities v United States, Appeal, WT/DS320/AB/R
136
Panel Report,Korea – Measures Affecting Government Procurement, WT/DS16/R
137
United States - Import Prohibition of Certain Shrimp and Shrimp Products, India and ors v United States,
Report of the Appellate Body, WT/DS58/AB/R
138
United States - Tax Treatment for 'Foreign Sales Corporations', United States v European Communities,
Appellate Body Report, WT/DS108/AB/R
139
Panel Report, United States-Final Dumping Determination on Softwood Lumber From Canada, at 8,
WT/DS264/R
140
Argentina - Definitive Anti-Dumping Duties on Poultry from Brazil, Brazil v Argentina, Report of the
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2.2 JURISDICTION:
The WTO dispute settlement system has jurisdiction over any disputes that may arise between
the member countries arising under any of the covered agreements.141 Article 23 of the DSU
states that the WTO has exclusive jurisdiction to resolve disputes arising from the violations of
the covered agreements. Article 3.8 also provides that the jurisdiction is quasi automatic and
hence the responding member cannot refuse to participate in the DSB process initiated by a
challenging member. Accession to the WTO agreement constitutes acceptance of the compulsory
jurisdiction of the WTO. But some of the covered agreements provide for additional rules and
procedures to deal with the dispute settlement arising out of a violation of a specified covered
agreement. Article 1.2 of the DSU provides that these additional rules and procedures prevail
over the DSU rules and procedures.
CLASH BETWWEN RTA AND WTO- DSM
Article XX1V of the GATT and Article V of GATS authorize members to form RTA provided
that specific conditions are fulfilled.142 Many of the RTA provides for the establishment a
separate dispute settlement mechanism. In such cases there might be a conflict of jurisdictions
between the WTO DSM and RTA DSM. In Mexico Soft drinks143 the AB ruled that the DSU
obliged the panels to exercise the jurisdiction unless a legal impediment precluded them from
ruling on the merits of a claim. In Peru Agricultural Products144 the AB ruled that the WTO
adjudicating bodies cannot refrain from exercising jurisdiction unless the right to access to WTO
DSM was clearly relinquished by the parties to the dispute.
CAUSE OF ACTION
Article XXIII of GATT provides for the cause of action as to when a member can have a
recourse to DSM. In India Quantitative restrictions145 the AB held that according to Article
Panel, WT/DS241/R
141
Article 1.1 of the DSU
142
Appellate body report on Turkey – Restrictions on import of Textile and clothing products.
143
Mexico - Tax Measures on Soft Drinks and Other Beverages, United States v Mexico, Appellate Body
Report, WT/DS308/AB/R
144
Peru - Additional Duty on Imports of Certain Agricultural Products, Peru v Guatemala, Report of the
Appellate Body, WT/DS457/AB/R
145
India — Quantitative Restrictions, India v United States of America, Appellate Body Report,
WT/DS90/AB/R
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XXIII any member if it considers that the benefit accruing to it directly or indirectly is nullified
or impaired as a result of failure of another member to carry out its obligations may resort to
DSM. The AB held that the US benefits were nullified because of the failure of India to carry out
its balance of payments obligations.
There is no explicit provision requiring a member to have a legal interest to approach the DSB.
This was held in the EC Bananas III146 case in which EC questioned the interest of US to bring
a case as US was not an exporter of bananas. The AB held that a member has a broad discretion
to bring a case and Article 3.7 of the DSU states that a member may bring an action if it
considers that the action ends in a fruitful solution. Therefore, as the US is a producer and
potential exporter of bananas and there could be a potential effect on the internal market of US
for bananas, it has the right to bring an action in the WTO DSB.
TYPES OF COMPLAINT:
A member can bring three types of complaints against a member in WTO. This includes
violation, Non violation and situation complaints. In case of situation and Non violation
complaint the complainant must demonstrate that there is an impairment or nullification of a
benefit.147 In case of violation complaints this is not required as in such cases as there is a
presumption that the breach of an obligation under WTO by a member will have adverse impacts
on the other members.148
CHAPTER 3
The main functions of a WTO dispute settlement mechanism include provide security and
predictability to the multilateral trading system, to preserve the rights and obligations of WTO
members, to clarify the provisions of WTO through interpretation and to favour mutually agreed
solutions. The WTO provides for the resolution of disputes in two ways through mutually agreed
solutions and through adjudication.
3.1 MUTUALLY AGREED SOLUTIONS:
CONSULTATIONS
The objective of consultations is to allow parties to obtain satisfactory adjustments of the matter
146
European Communities - Regime for the Importation, Sale and Distribution of Bananas, European
Communities v Ecuador and ors, Appeal, WT/DS27/AB/R,1997
147
Article 26 of the DSU
148
Appellate Body report EC Bananas III Para 125.
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before resorting to further action.149Each member must undertake to accord sympathetic

consideration and afford adequate opportunity for any representation made by a member. Thus
consultations allow the parties to clarify any facts and resolve any misunderstandings. Through
consultations the Appellate Body observed parties exchange information assess the merits of the
positions.
Request for consultations should be made in writing and a copy must be given to the DSB and
relevant WTO committees. Under Article 4.5 the complaining party must give reasons for the
request and identify the measures at issue. Thus consultations must be requested before
establishing a panel under Article 6.2 of DSU. If the defending parties decline to consult then the
panel could be established directly. In Mexico Corn Syrup150, Mexico waived its right of any
consultations. Therefore the DSB constituted a panel without consultation and this was not raised
by mexico in the panel stage. In the AB it raised an issue stating that there is a defect in the
process. The AB held that lack of prior consultations is not a defect that deprives the panel of its
authority to deal with the matter. A third party can also join the consultation process if it has a
substantial interest and if the party to whom the request is made agrees that the third party has
substantial interest.
Under Article 4.3 a defending member must respond to the request of consultations within 10
days of the receipt of request and must consult within 30 days of receipt or within a time frame
mutually agreed. If a party does not respond within 10 days or consult within the time frame then
the requesting member could proceed with the establishment of a panel. If the consultations are
held but fail to settle a dispute within 60 days of receipt of a request, then the establishment of a
panel can be requested.
GOOD OFFICES, CONCILIATION AND MEDIATION
Good offices, conciliation and mediation are not compulsory processes in WTO. Article 5 of the
149
Article 4.5 of DSU
150
Mexico - Anti-Dumping Investigation of High Fructose Corn Syrup (HFCS) from the United States,
United States v Mexico, Recourse to Article 21.5 of the DSU by the United States - Report of the Appellate
Body, WT/DS132/AB/RW
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DSU states that this can be initiated voluntarily if the parties to the dispute agree. These process
will not diminish the rights of the parties to approach the dispute settlement body for initiating a
panel process. These processes can be initiated at any time during the dispute settlement process.
3.2 ADJUDICATION
PANEL PROCESS
As stated a party can resort to panel process if the defending party does not reply within 10 days
or if the consultations are not held within the specified time frame of 30 days or in cases a
solution is not reached within 60 days from the date of receipt of request of consultations. If a
defending party has agreed to the consultations, then the panel process cannot be initiated until
60 days have lapsed from the date of receipt of request unless the parties agree that further
consultations is not productive. A request for the establishment of a panel must be made in
writing and indicate whether the consultations were held. It must also identify the specific
measures at issue and the legal basis of request. The panel will be established at the first DSB
meeting, unless there is a consensus in the DSB not to establish a panel. The panel usually
consists of 3 experts and possibly upto 5 members who are well qualified governmental or non-
governmental individuals. It is made sure that the panel consists of members from diverse
backgrounds151. Citizens of WTO members whose governments are parties to the dispute cannot
be a part of WTO panel.
A panel is considered to be properly constituted if the terms of reference are agreed upon.152
Unless the parties agree to the contrary within 20 days from the date of establishment of a panel,
the panel will proceed with the standard terms of reference. If the parties agree the DSU provides
for the chairman to draw special terms of reference in consultation with the parties under Article
6.3 which was followed in Brazil desiccated coconut case153. The panel process is time bound
and it cannot take more than 6 months. Once written submissions have been received and the
parties and third parties have been heard, the panel issues the draft descriptive part of its panel
report for comments in writing by the parties154. Parties are invited to make comments on the
draft descriptive part within two weeks. After the receipt of comments on the descriptive part,
151
Article 8.2 of DSU
152
Article 7 of DSU
153
Brazil — Measures Affecting Desiccated Coconut, Brazil v Philippines, Appellate Body Report,
WT/DS22/AB/R
154
Article 15 of DSU
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the panel issues its interim report containing the revised descriptive part and the findings of the
report. Parties are again invited to make comments and may request an interim review meeting of
the panel further to argue specific points raised with respect to the interim report. This is the
interim review stage. The final report must contain a reference to all the arguments raised by the
parties during the interim review stage.
The panel issues its final report to the parties within two weeks following the interim review
meeting, if one is held. A panel report may be considered for adoption 20 days after it is
circulated to all the Members. It shall be adopted at a DSB meeting within 60 days after the date
of circulation of a panel report to the Members, unless a party to the dispute formally notifies the
DSB of its decision to appeal or the DSB decides by consensus not to adopt the report.155
AMICUS CURIAE BRIEFS AND EXPERT CONSULTATION
Though amicus curiae briefs are accepted by the panels most of them are not used to resolve the
disputes. The question as to the amicus curiae briefs first emerged in the case of US Shrimp
where the panel refused to accept the briefs stating that it had not requested them. It held that
under Article 13 of the DSU only parties and third parties are allowed to submit information.
This was rejected by the AB which held that the panel has the discretion to accept or reject the
information submitted to it whether requested or not by the panel.
Article 13 also authorizes the panel to seek information from the persons who are experts. In EC
Hormones156the panel decided not to obtain a consensus report of the group of experts rather
obtain the opinions individually. In Argentina Textiles and Apparels157 the AB stated that the
panel is not bound to seek expert advice and that they have discretion to decide whether to seek
expert advice.
APPELLATE PROCESS158
The Appellate Body is responsible for hearing appeals from panel decisions. Only parties to the
dispute, not third parties, may appeal a panel report. Third parties which have notified the DSB
of a substantial interest in the matter before the panel may make written submissions to, and be
155
Article 16 of DSU
156
Supra note 13.
157
Argentina - Measures Affecting Imports of Footwear, Textiles, Apparel and other Items, United States v
Argentina, Report of the Appellate Body, WT/DS56/AB/R
158
Article 17 of DSU
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given an opportunity to be heard by, the Appellate Body. Any appeal of a panel report must
occur before the report is adopted by the DSB. The appeal process begins when a party to the
dispute formally notifies the DSB of its decision to appeal.
Appeals are limited to issues of law covered in the panel report and legal interpretations
developed by the panel. This was observed in EC Hormones case. In Korea Alcoholic
beverages159the AB rejected a claim relating to the weight the panel has given to the evidence.
The Appellate Body may uphold, modify or reverse the legal findings and conclusions of the
panel. The Appellate Body shall generally complete its review process within 60 days. In no case
shall it exceed 90 days. An Appellate Body report must be adopted by the DSB and
unconditionally accepted by the parties to the dispute unless the DSB decides by consensus not
to adopt the Appellate Body report within 30 days following its circulation to Members. In case
of appeal, the panel and the Appellate Body reports will be adopted by the DSB together. The
panel and Appellate Body reports will only be binding upon the parties after adopted by the
DSB.
In US certain EC products160 the Appellate body reflected upon its task and held that that task
of the AB is not to amend the DSU but only to preserve the rights and obligations of the
members and to clarify the existing provisions.
CHAPTER 4
4.1 IMPLEMENTATION OF REPORTS
The DSU states that prompt compliance with the recommendations or rulings of the DSB is
161
essential in order to ensure the effective resolution of disputes. At a meeting within 30 days
after the adoption of the report, the losing Member has to inform the DSB of its intentions to
implement the recommendations and rulings of the DSB and whether it is able to comply
immediately with the recommendations and rulings. If it is impracticable to comply immediately,
the party will be granted a reasonable period of time to comply. This reasonable period of time
can be decided in three different ways:
159
Panel Report,Korea – Taxes on Alcoholic Beverages, WT/DS75/R, WT/DS84/R, adopted17 February 1999, as
modified by the Appellate Body Report, WT/DS75/AB/R,WT/DS84/AB/R
160
Appellate Body Report,United States – Import Measures on Certain Products from theEuropean Communities,
WT/DS165/AB/R, adopted 10 January 2001.
161
Article 21 of DSU
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(i) Proposed by the Member concerned with the approval of the DSB (Article 21.3(a) of the
DSU)
(ii) Agreed upon by the parties within 45 days after the adoption of the report (Article 21.3(b)
of the DSU)
(iii) Determined by arbitration within 90 days after the adoption of the report (Article 21.3(c)
of the DSU). When the reasonable period of time is arbitrated, a guideline for the
arbitrator is that the reasonable period of time to implement the panel or Appellate Body
recommendations should not exceed 15 months from the date of adoption of a panel or
Appellate Body report.
DISPUTES IN IMPLEMENTATION:
Disagreements might arise between the parties when in the view of the complaining party the
defending party had not brought the measures into conformity. When disagreement occurs as to
the compliance measures recourse is made to the dispute settlement procedures. 162 The referral
is made to the original panel which will circulate its report within 90 days of referral.
The scope of review by a compliance panel under Article 21.5 first arose in the EC Bananas III.
In that case EC argued that the panel’s terms of reference was limited on the matters on which
the DSB had adopted its recommendations. The compliance panel noted that article 21.5 directs
the panel to consider the existence or consistency with a covered agreement of measures taken to
comply with the recommendations of the DSB. The same was held in Australia-Salmon case.
In Mexico Corn Syrup it was argued by the EC that the compliance panel cannot be established
without prior consultations. The AB held that lack of prior consultations is not a defect that
deprives the panel of its authority to deal with the matter.
4.2 REMEDIES
COMPENSATION
Compensation and the suspension of concessions or other obligations are temporary measures
available in the event that the recommendations and rulings are not implemented within the
162
Article 21.5 of DSU
99
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reasonable period of time. If the WTO Member concerned fails within the reasonable period of
time to bring the measure found to be inconsistent with the covered Agreement into compliance
in accordance with the recommendations, that Member must, if so requested, enter into
negotiations with a view to agreeing on mutually acceptable compensation (Article 22.2 of the
DSU). This compensation does not mean monetary payment but the respondent is supposed to
offer a benefit which is equivalent to the benefit that the respondent has nullified or impaired by
applying its measure. The compensation is voluntary and must also be consistent with the
covered Agreements.
SUSPENSION OF CONCESSIONS
Authorization for suspension of concessions or other obligations may be sought from the DSB by
the Member concerned if no satisfactory compensation has been agreed upon within 20 days
after the date of expiry of the reasonable period of time. The DSB is required to grant such
authorisation within 30 days of the expiry of the reasonable period of time unless it decides by
consensus to reject the request.
CONDITIONS FOR SUSPENSION OF CONCESSIONS

The complaining party should first seek to suspend concessions or other obligations with respect
to the same sector as that in which nullification or impairment has been found. If it is not
practicable or effective to do so in the same sector, the suspension of concessions or other
obligations may be made in other sector under the same Agreement. If even that is not
practicable and the circumstances are serious enough, the complaining party may seek to suspend
concessions or obligations under another Agreement. This is referred to as cross-retaliation. For
these purposes, "sectors" are classified in three categories: (i) goods (ii) services (iii) intellectual
property.
The level of suspension of obligations authorized by the DSB must be equivalent to the level of
nullification or impairment - that is, it may not go beyond the harm caused by the respondent
(Article 22.4 of the DSU).
In EC Bananas III the WTO member requested DSB authorization to suspend the concessions
under the TRIPS agreement as a cross retaliation. The arbitrators authorized Ecuador to request
the suspension of concessions under the TRIPS agreement from the DSB which also authorized
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the suspension. In US-Gambling163 Antigua requested for the suspension of concessions under
TRIPS as the US measures on cross border gambling services was inconsistent with the GATS.
In case of disagreement regarding either the equivalence of the level of nullification with the
level of suspension or the conditions applicable to cross-retaliation, arbitration may be requested
(Articles 22.6 and 7 of the DSU). Such arbitration shall be carried out by the original panel, if
members are available, or by an arbitrator appointed by the Director-General, and shall be
completed within 60 days after the date of expiry of the reasonable period of time. Concessions
or other obligations shall not be suspended during the course of the arbitration (Article 22.6 of
the DSU).
ISSUE OF SEQUENCING
The sequencing problem is between the compliance reviews under Article 21.5 and the request
for authorization to suspend the concessions in Article 22. When disagreement occurs as to the
compliance measures recourse is made to the dispute settlement procedures under Article 21.5
and thus a compliance panel is set. The compliance panel must circulate the report within 90
days of the expiry of reasonable period. Article 22 also mentions the situations in which a
member has failed to bring a measure consistent with the covered agreements. But article 22
does not state as to who should determine whether the measures are in compliance. It is argued
by some it is implied in Article 22 that the question as to the whether the measures are in
compliance is decided by a compliance panel. Under Article 22.2 if the measures are not in
compliance the parties may enter into compensation negotiations. If an agreement is not reached
within 20 days the complaining member may request authorization to suspend concessions.
Article 22.6 states that if a member has not complied with the measures, then the complaining
member may request authorization for suspension of concessions within 30 days of the expiry of
the reasonable period. Therefore out of the 30 days there is only a 10 days gap for a complaining
member to request for arbitration as a 20 day period out of the 30 days must be allotted for
compensation negotiations. If an arbitration is resorted to under Article 22.6 the arbitrators must
issue an award within 60 days of the expiry of the reasonable period. Whereas a compliance
163
US - Gambling, Antigua and Barbuda v United States, Report of the Appellate Body, WT/DS285/ABR
101
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panel must circulate the report within 90 days of expiry of the reasonable period. So there arises
a problem of sequencing as to whether a member can request authorization for suspension before
the compliance report is circulated.
This issue of sequencing arose in the EC Bananas III case where the US requested an
authorization for the suspension of concessions under Article 22. The EU argued that the
question as to whether the EU has failed to comply with the report must first be determined by a
compliance panel under Article 21.5. The dispute highlighted the underlying issue in the
sequencing problem: who determines whether a respondent has failed to comply.
Moreover, the case shed light on the vague wording “recourse to these dispute settlement
procedures” in Article 21.5. It is presumably a reference to the DSU’s normal panel procedures,
but the short time frame for a compliance panel, 90 days, compared to the normal 6–9 months for
panel proceedings, and another 2–3 months for an appeal, shows that the same procedures would
be impracticable and may not be intended. In such case, the question is which of the normal rules
apply to a compliance panel procedure.
The disagreement between the EU and the US on the correct sequencing resulted in two parallel
procedures: Article 22.6 arbitration and Article 21.5 compliance panel proceedings. As a
consequence of the time frames of the two Articles, the arbitrators would have decided the level
of suspension of concessions before the compliance panel had determined whether the EU had
failed to comply. The two procedures were carried out by the original panelists as provided by
both Articles 21.5 and 22.35 These individuals solved the problem mainly by acting as Article
22.6 arbitrators. They interpreted the articles to mean that the short time frame for authorization
to suspend concessions confirmed that such authorization could not be conditioned by a prior
determination of compliance by a panel.164It considered that arbitrators under Article 22.6 were
competent to determine compliance instead of a compliance panel.
4.3 DEVELOPING COUNTRIES AND DSM
Particular consideration shall be given to the special situation of LDC Members at all stages of
the dispute. Members are to exercise due restraint in bringing a dispute against LDC members.
The Director-General or the Chairman of the DSB are required, upon request by a LDC member,
164
EC – Bananas (Recourse to Article 22.6) (WT/DS27/ARB), paras. 4.1-4.15
102
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to offer their good offices, conciliation or mediation to help the parties to settle the dispute,
before having to resort to requesting the establishment of a panel. If a measure adopted by a LDC
member has been found to be inconsistent with WTO rules, complaining parties are to exercise
due restraint in asking for compensation, or seeking authorization to suspend the application of
concessions or other obligations.165
The Secretariat must make available a qualified legal expert from the WTO technical
cooperation services to any developing country member which so requests. This expert must
assist the developing country member in a manner ensuring the continued impartiality of the
Secretariat.166 Members should give special attention to the particular problems and interests of
developing country members in consultations167. At least one panelist should be selected from a
developing country member in a dispute between a developing country member and a developed
country member, if the developing country member so requests168. During implementation
particular attention should be paid to matters affecting the interest of developing country
members.169
165
Article 24 of DSU
166
Article 27.2 of DSU
167
Article 4.10 of DSU
168
Article 8.10 of DSU
169
Article 21.2 of DSU
103
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CHAPTER 5
5.1 CONCLUSION
Thus the corner stone of WTO is the development of a dispute settlement process. In the
implementation of most of the measures and the settlement of disputes the WTO has been a
success. The dispute settlement mechanism has widened the WTO jurisprudence. The
development of jurisprudence regarding the applicability of general principles, the
determination on the applicability of the precedents are quite significant. However it is argued
by some that the WTO dispute settlement is effective in facilitating mutually agreeable solutions
but is not effective in creating a level playing field. Though developing countries have started
participating in the dispute settlement process most of the them are still excluded. It is said
though developing countries receive special treatment in WTO, they are targeted by the
developed countries in the DSM. Moreover cost considerations and lack of legal expertise have
prevented developing countries from taking full advantage of the WTO dispute settlement
process. It is also argued by some that the WTO panels and Appellate Body has in some cases
encroached upon the power of the legislature. However the WTO’s dispute settlement
Understanding represents in the words of Celso Lafe, former chairman of DSB a thickening of
legality. The WTO dispute settlement represents a system away from diplomacy and towards
litigation.
104
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INTERNATIONAL

JOURNAL FOR LEGAL

Copyright © International Journal for Legal Research & Analysis

Ms. Priya Singh

Mr. Ritesh Kumar

Mrs. Pooja Kothari

Dr. Shweta Dhand

S.No Name Title Page no.

4 Prachi Shekhawat Abrogation Of Constitution: Transition From “Judicial 47

6 Dhruv Mehta Children Should Be Allowed To Play Video Games For 71

8 Anuroopa D The Wto Dispute Settlement Mechanism- An Analysis 88

COPYRIGHT IN THE DIGITAL WORLD: ISSUES AND A WAY FORWARD

AUTHOR: ANUBHAV SINGH

CO-AUTHOR- YASHI SINGH

1.2 RESEARCH METHODOLOGY: 9

1.3. RESEARCH HYPOTHESIS: 10

THE COPYRIGHT LAWS AND THE DATA BASES........................................ 10

2.2 COPYRIGHT LAWS AND DATABASES 11

2.3 PROTECTING THE DATABASE IN INDIA 12

INFRINGEMENT OF COPYRIGHT ON THE INTERNET ................................ 13

3.3. DISPLAYING PUBLICALY AND THE RIGHTS OF UPLOADING AND POSTING ON

JURISDICTION PROVIDED UNDER THE COPYRIHT ACT ............................ 15

7.3 JOURNAL ARTICLES: 19

7.4 RESEARCH ARTICLES: 19

1.2 RESEARCH METHODOLOGY:

1.3. RESEARCH HYPOTHESIS:

THE COPYRIGHT LAWS AND THE DATA BASES

2.2 COPYRIGHT LAWS AND DATABASES

2.3 PROTECTING THE DATABASE IN INDIA

INFRINGEMENT OF COPYRIGHT ON THE INTERNET

3.3. DISPLAYING PUBLICALY AND THE RIGHTS OF UPLOADING AND POSTING ON

JURISDICTION PROVIDED UNDER THE COPYRIHT ACT

RIGHT TO REPRODUCTION OF DIGITAL WORK

The Copyright Rules 201322

● DAVISON, THE LEGAL PROTECTION OF DATABASES 11(CAMBRIDGE UNIVERSITY PRESS,

● Macmillan & Co. Ltd v. Cooper, (1924) 40 TLR 186 at p. 188

8.3 JOURNAL ARTICLES:

8.4 RESEARCH ARTICLES:

● THE COPYRIGHT ACT, 1957

Understanding voter behaviour and it’s determinants

1) Political parties dominating elections , not the candidate

Changing trends in the mind set of Indian women:

Bengal voters most obvious question -Employment (Through voter’s mind)

INDIA VOTES WILL CHANGE IT’S FUTURE COURSE

How do voter’s vote in India

Real Problems of Assumption

The Role of News on mind of Indian voters

KERELA -AN INSIGHT INTO MIND OF VOTERS

WINING OF AAP TELLS ABOUT UNIQUE FORM OF POLITICAL AWARENESS

VOTING ANALYSIS IN ASSAM (TEA TRIBES)

DATA TELLING ABOUT INCUMBENCY

A STUDY ON THE LEGAL ASPECTS OF THE INTER-STATE

By : Chandi Prasad Khamari & Anjana Tripathy

REQUIREMENT OF THE STUDY

GEOGRAPHICAL AREA OF THE STUDY

for better opportunities and livelihoods33.

SCRUTINY OF LEGAL PROVISIONS

rural Odisha to describe debt migration.

addition to this it is suggested that a comprehensive legislation should be enacted to provide

4. Government of Odisha. (n.d.). Retrieved Jan 20, 2021, from www.agriodisha.nic.in :

6. (2007). The Inter-State Migrant Workmen (Regulation of Employment and Conditions of

ABROGATION OF CONSTITUTION: TRANSITION FROM “JUDICIAL

Key words: Judicial activism, separation of powers, Judicial overreach, constitutional.