INDRAPRASTHA LAW REVIEW

Indraprastha Law Review https://indraprasthalawreview.in

Summer 2020: Volume 1, Issue 1

eJournal of University School of Law and Legal Studies

University School of Law & Legal Studies

Guru Gobind Singh Indraprastha University

Dwarka, Sector 16C, New Delhi, 110078 - India

www.ipu.ac.in

https://indraprasthalawreview.in/

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TITLE Indraprastha Law Review: E-Journal

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PUBLISHER University School of Law and Legal Studies

GGS IP University, New Delhi – India

EDITOR IN CHIEF Dr. Amar Pal Singh

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Dr. Zubair A. Khan - Assistant Professor of Law

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GGS IP University, New Delhi – India

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Indraprastha Law Review

Summer 2020: Volume. 1; Issue. 1 Published by:

University School of Law & Legal Studies,


Table of Contents

Sr. No.

Details of Article and Author Page no.

1. Article Ordinances & Administrative Legislations: Discretion

Involved in a Legislative Power Vested in the Executive

7 - 13

Author Subir Kumar & Pranjal Chaturvedi

2. Article Environmentalism in International Jurisprudence

14 - 22 Author Debasis Poddar

3. Article Delving the Role of WHO vis-a-vis Covid-19

23 - 36 Author Karan Kataria & Dipshikha Kumari

4. Article Changing Dimensions of Law & Justice: A Socio-Legal

Study of the Marginalized Population Group of J&K

37 - 47

Author Pankaj Jamtani

5. Article ‘Corporate Governance’ Vis-À-Vis ‘Oppression and

Mismanagement’: A Case Study of Mr. Ratan Tata and Mr. Cyrus Mistry Dispute

48 - 58

Author Keshav Kaushik

6. Article Groundwater Management Under Indian Legal Framework

59 - 76 Author Farzin Naz & Jayanta Boruah

7. Article Everyday Challenges and Overall Social Impact of the Bede

Community: In a Quest for Equality in The Society of Bangladesh

77 - 86

Author Tamanna Tabassum Kabir

8. Article Epidemic Act & Disaster Management Act – A Pathway To

Arbitrariness And Vagueness

87 - 96

Author Anant Singh

9. Article A Study of Animals as Legal Persons

97 - 106 Author Pranjal Pranshu

10. Article The Curious Case of Hung Assemblies and Its Plausible

Remedy

107 - 112

Author Akshit Sachdeva

11. Article Application of Value Added Tax in Goods & Services Tax:

Issues & Concerns

113 - 122

Author Aastha Pandey & Ritesh Kumar

12. Article Hub and Spoke: An Analysis of the Existing International

Scenario and the Draft Competition Amendment Bill 2020

123 - 139

Author Anumeha Agarwal & Akanksha Singh

13. Article Identity Theft: Extent and Applicability of Data Protection

Laws

140 - 153

Author Abhishek Kushwaha & Aditi Palit

14. Article The Cost of Environmental Non-Compliance – Does the

Polluter Really Pay?

154 - 167 Author Nikita Singhi & Vishwas Bharadwaj

15. Article Animal Rights in India: A Mirage of Law?

168 - 179 Author Kushal Choudhary & Ayushi Sinha

16. Article Patentability of Military Weapons: A Concern for Security

180 -187 Author Mukesh Kumar Mishra

17. Article Myths Surrounding Menstruation: Breaking the Stereotypes

188 - 197 Author Bhumika Verma

18. Article Effectuating The Process of Resolution as Against Liquidation:

A Promoters’ Perspective

198 - 206

Author Ashwin Bala

19. Article The Good Samaritan Law: An Insight

207 - 217 Author Kshitij Kasi Viswanath

20. Article The Offence Relating to Outraging Modesty of Women- An

Evaluation

218 - 228

Author Ritika Sharma

21. Article Free Speech and Criminal Defamation: A New Approach

229 - 234 Author Mukul Kumar Choudhary & Varsha Singh

22. Article The WTO Dispute Settlement Crisis: The Problem is Not as

Worse as it Looks

235 - 240

Author Vedant Singh & Isha Chaudhary

23. Article The Spirit of Democracy and Rule of Law in India: An

Analysis of the UAPA & NIA Amendment Bills (2019) with

Context to Misuse of Power under the Garb of Anti-Terror Legislations

241 - 253

Author Prajjwal Tyagi & Ishita Yadav

24. Article Female Genital Mutilation: Evils of Bygone Era

254 - 265 Author Aakriti Sharma & Anmol Chitranshi

25. Article Disposal, Delay and Denial: Case Study in Criminal Justice

System

266 - 272

Author Dr. Girjesh Shukla

26. Book

Review “An Idea of A Law School: Ideas from the Law School” (2019)

Edited by N.R. Madhava Menon, Murali Neelakantan, Sumeet

Malik, Eastern Book Company

273 - 279

Author Rhea Roy Mammen

27. Case

Comment

Ishwar & Ors vs. State Of Maharashtra [2020 SCC Online Bom

402] – The Right Aim Hit with the Wrong Arrow

280 - 285

Author Adv. Arjun Kadam & Mr. Sudhanva S. Bedekar

28. Case

Comment

RAJ Rewal vs. Union of India & Ors. CS (COMM) 3/2018, IA

NO. 90/2018, IA NO. 92/2018.

286 - 290 Author Deeksha Prakash

29. Short

Article

Buyer’s Cartels: An Amendment too Late

291 - 294

Author Hartej Singh Kochher

30. Short

Article

Brief Analysis of Constitutionality of Section 12 (F) of Data

Protection Bill

295 - 300

Author Deeksha Sabharwal

Indraprastha Law Review Summer 2020: Vol. 1: Issue 1

eJournal of University School of Law & Legal Studies

Ordinances & Administrative Legislations: Discretion Involved in a

Legislative Power Vested in the Executive

Subir Kumar and Pranjal Chaturvedi1

Abstract

The Constitution makers instilled a very important legislative power in the hands of the Ex-

ecutive to meet exigent circumstances, such that there arises an immediate need to enact cer-

tain laws, which cannot wait for the Central or State legislative assemblies to reconvene. This

is referred to as the power of issuing Ordinances. It is essentially a sub-set of delegated legis-

lations, complete with its pros and cons. Through the course of this paper, the authors attempt

to capture the history behind legislative delegation, tracing its evolution from the pre-inde-

pendence era, to its post-independence development through relevant judicial precedents,

while critically examining the extent and scope of judicial review attached to President and

Governor-promulgated ordinances, respectively, in the past. The discretionary power

awarded to the respective executive heads and the notion of subjective satisfaction is also dealt

with extensively, while testing it at the touchstone of the age-old concept of separation of pow-

ers and studying as to whether it upholds its intended objective till date or has simply become

a tool to surpass the Legislatures’ authority and power.

CITATION: Indraprastha Law Review, Vol. 1: Iss. 1, Nov. 2020, pp. 7-13. New Delhi - India.

I. Introduction

The method of promulgation of an ordinance has been designed in such way to enable the Execu-

tive to tackle any urgent & unforeseen situation that the country may face when the Parliament or

the State Legislatures are not in session and the situation can't be taken care of with the help of any

existing law. This power actually belongs to the Parliament and the State Legislatures. However,

with a view to meet extraordinary situations demanding immediate enactment of laws, the Consti-

tution of India provides for provisions to invest the President and the Governor with the legislative

power to promulgate ordinances. An ordinance is only a temporary law.

Under Article 123 of the Constitution of India, the President of India is vested with the power to

promulgate Ordinances having the same force and effect as an Act of Parliament.2 Similarly, under

Article 213 of the Constitution of India,3 the Governor of a State is vested with the power to

promulgate Ordinances having the same force and effect as an Act of the Legislature of the State

assented to by the Governor. The power to promulgate ordinances is something which is not an

entirely new concept introduced in the Indian Constitution. Articles 42 and 43 of the Government

of India Act, 1935, enacted during the British reign, conferred similar powers of issuing ordinances

on the Governor General of India. The system of delegated legislation is a source of multiple con-

fusions. It serves as an excuse for the parliamentarians, as a protective guard for the bureaucrats

and as a provocation for the priests of the Indian Constitution. The sphere of State action has

expanded enormously in the modern age. It has become practically impossible for the legislature

to provide laws complete in all necessary details, Therefore, the system is appreciated as a neces-

sity on one hand and criticized as an abdication of power on the other. Many people consider this

1 Subir Kumar, Assistant Professor (Law), NUSLR, Ranchi and Pranjal Chaturvedi, Student, NUSLR, Ranchi.

2 INDIA CONST., art. CXXIII.

3 Ibid.

7



form of law making as inevitable in a fast growing economic, technological, psychological and

administrative world. Others criticize it as a misuse of power by parliamentarians and a way to

escape from the responsibility imposed upon them by the public.4

Delegated Legislation is often mistaken as a modern problem. It is not. It is a historic question

which troubled and agitated men's minds very soon after the beginning of what we call law and

legal administration. It is not wholly a problem of democracy. It existed and exists as a problem in

every context of Government, whatever be its ideals or its policies. Its forms have changed, its

repercussions have changed, but its core remains.

II. History of Delegation of Powers of Legislative Character

The British Government as a ‘colonial power’ felt the necessity and the urge to arm its Chief

Executive in colonies with such legislative powers as he could, on an emergency situation, invoke

at will, without having a risk of refusal or without having openly to account for it, in order that he

may fulfil his mission, with the minimum of delay, of protecting the British interest and the reign.

The ordinance making power served as a ready instrument for this purpose.

On August 1, 1861, by a British statute namely the Indian Councils Act, 1861, this extraordinary

power of issuing ordinances was conferred on the Governor General, the Chief Executive of the

Government of India. In India, the word ‘ordinance’ has never been a popular word because during

the days of Indian Freedom Movement, ordinances were increasingly utilized to curb and kill na-

tional aspirations and urge for political liberty. To the British, it provided for a handy weapon of

mass repression and suppression. On July 20, 1915, the British Parliament enacted The Govern-

ment of India Act, 1915 which repealed The Indian Councils Act, 1861.

Under this new Act also, the power of issuing Ordinances was vested with the Governor General

by virtue of Section 72 of the said Act. The Government of India Act, 1935 also provided for

similar powers of issuing ordinances, in cases of emergency, to the Governor General by virtue of

Section 42 of the said Act. The Government of India Act, 1935 served as Provisional Constitution

from 1947 to 26th January, 1950. It was only on 26th January, 1950 that the Constitution of India

came into force.

Some members of the Constituent Assembly were reluctant to place the power of issuing ordi-

nances in the hands of the executive. Both, Professor K.T. Shah & Hriday Nath Kunzru, were

against the decision of including such powers in the Constitution because they had experienced

the misuse of such powers during the British rule. Dr. B.R. Ambedkar, however, overruled them

on the ground of necessity of ‘immediate action’. Therefore, under Articles 123 and 213 of the

Constitution of India, the President of India and the Governor of a State respectively were vested

with the power to promulgate Ordinances, as previously mentioned. Greek political theory and

legal concepts as expounded by Plato and Aristotle in the small City States did not face the com-

plex problems of delegated legislation as in the modern age, although, they did have occasion to

notice whether the representative was limited or not in his powers of representation. With the Ro-

mans, delegation was an acknowledged problem and the Roman concept of ‘delegatus non potest

4 P. B. Mukharji, Delegated Legislation, 1 JILI 465, 492 (1959).

8



delagare’ was born of many tears.

The modern origin of delegated legislations lies in opposition to centralization. Bentham and his

disciple, Chadwick, were pleading for devolution, so that subordinate bodies could be given

greater power to legislate. The reason why they chose to advocate that cause was that Local Self-

Government provided the best nursing ground for training in democracy. Local Self-Government

and municipal administration provided the first occasion for delegation of legislative powers and

legislative functions. The atmosphere was considerably helped by the Pluralists and the Syndical-

ists with their particular ideas of self-sufficient government and organization for different groups

in society. Imperialism and colonialism of the 18th and 19th centuries further advanced the cause

of delegation. The next step was the introduction of the principles of delegation, to courts and

judicial procedure. The British Judicature Acts are important land-marks in the history of delegated

legislation. All this is 19th century history. The 20th century legal outlook opened with shining faith

in parliamentary sovereignty and legislation but before half the century was over, the world was

engulfed in two Wars.

The First & the Second World Wars are responsible, to a large extent, for an unexpected increase

in delegated & subordinate legislations on the ground of 'immediate action'. These wars needed a

mechanism which could take immediate decisions without any unnecessary delay. The then exist-

ing legal machinery was not smooth enough to take decisions on such an emergency basis and

hence, the only solution was to delegate these powers of taking decisions into the hands of the

subordinate agencies who were also charged with carrying them into effect. Since then, emergency

legislations became a new normal in the world of law making. In this atmosphere and speed of

emergency, the frontiers between the principles and procedures became blurred. They first came

as Statutory Rules and Orders blessed by the English Rules Publication Act of 1893 and later

acquired the more dignified designation of Statutory Instruments under the English Statutory In-

struments Act of 1946.

III. Judicial Review of Ordinances in India

In SKG Sugar Limited v. State of Bihar,5 the Supreme Court stated that Governor’s satisfaction is

a very subjective term and can’t be questioned on the ground of error of judgment. An enquiry into

the question of satisfaction is not a justifiable matter. However, in the Bank Nationalization Case,6

the constitutional validity of the Banking Companies (Acquisition and Transfer of Undertakings)

Ordinance, 1969, was challenged. The Supreme Court kept the question open that whether ‘Pres-

ident’s satisfaction’ comes under the ambit of judicial review or not.

In T Venkata Reddy v. State of Andhra Pradesh,7 the Supreme Court has ruled that ordinance mak-

ing power is a legislative power of the executive and hence is clothed with the same attributes and

immunities of legislation. Any ordinance can’t be questioned on the grounds of improper motives

or non-application of mind. Following this, the Apex Court held, in K Nagaraj v. State of Andhra

5 S. K. G. Sugar Limited v. State of Bihar, AIR 1974 SC 1533.

6 Rustom Cavasjee Cooper v. Union of India, AIR 1970 SC 564.

7 Venkata Reddy v. State of Andhra Pradesh, AIR 1985 SC 724.

9



Pradesh,8 that:

“The power to issue an ordinance is not an executive power, but is the power of the

executive to legislate. An ordinance can’t be invalidated on the ground of non-ap-

plication of mind.”

In these cases, the Supreme Court seems to have gone too far in immunizing an ordinance from

judicial review. It does not seem to be correct to treat an ordinance on all fours with an Act passed

by Parliament.9 However, in relation to exercise of emergency power, a power analogous to prom-

ulgation of ordinances, in S.R. Bommai v. Union of India,10 a Bench comprising of nine Judges of

the Supreme Court rejected an argument calling for restricting the Court’s power to review exec-

utive actions. They asserted that any exercise of power by the President, promulgation of ordi-

nances being one, may be scrutinized to ensure that it is in conformity with constitutional precon-

ditions.

The Constitutional Bench of the Supreme Court, in Rameshwar Prasad v. Union of India,11 disap-

proved the view expressed in State of Rajasthan v. UOI12 and reaffirmed the ratio in Bommai’s

case that the subjective satisfaction of a Constitutional authority including the Governor, is not

exempt from judicial review. A single Judge of the Karnataka High Court in State of Karnataka v.

BA Hasanabha13 declared an ordinance promulgated by the State Governor as being mala fide.

The Judge referred to the Bommai case in support of his approach. But, on appeal, a bench of two

judges reversed the single judge’s judgment and ruled that the power to make an ordinance being

legislative in nature, the concept of mala fides cannot apply thereto. The Court depended on Na-

garaj for support and did not refer to Bommai.

As per the prevailing position, while the satisfaction of the President or of the Governor as to the

existence of circumstances necessitating issuing of an Ordinance cannot be examined by the Court,

it is competent for the Court to inquire whether in exercise of his Constitutional power, the Presi-

dent or the Governor had exceeded the limits imposed by the Constitution upon the exercise of

that power or not. The law is very clear that the Governor is the sole judge of the question whether

emergent circumstances exist to necessitate the promulgation of an ordinance. That is a non-justi-

ciable matter.

It is interesting to note that the Government of India enacted the Constitution (Thirty-Eighth

Amendment) Act, 1975 to expressly provide (through inserting clause IV in Article 123) that the

satisfaction of the President (or of the Governor) shall not be questionable in any court on any

ground. By the Constitution (Forty-Fourth Amendment) Act, 1978, the same clause was omitted.

IV. Governor’s or President’s Discretion While Issuing an Ordinance

8 K. Nagaraj v. State of Andhra Pradesh, AIR 1985 SC 551.

9 M. P. JAIN, INDIAN CONSTITUTIONAL LAW (8h ed. 2018).

10 S. R. Bommai v. Union of India, AIR 1994 SC 1918.

11 Rameshwar Prasad v. Union of India, AIR 2006 SC 980.

12 State of Rajasthan v. Union of India, AIR 1977 SC 1361.

13 State of Karnataka v. B. A. Hasanabha, AIR 1998 Kant 210.

10



The power of the President of India to promulgate ordinances, like his other executive powers, is

exercised by him on the aid and advice of the Council of Ministers and hence, the ordinance issuing

power actually rests with the Central Executive only. The President can send the ordinance back

to the Cabinet once to review its decision, but if the Cabinet returns it back unchanged, the Presi-

dent will be bound to approve it.14

However, the Governor enjoys some discretionary power in issuing ordinances. Normally, the

Governor acts on the advice of the Council of Ministers but he can also use his discretion where

the Constitution so requires.15 In case of a confusing situation as to whether the Governor should

or shouldn't have acted in his/her discretion under the Constitution of India, the decision taken by

the Governor in his/her discretion will be final. The validity of any action taken by the Governor

will not be called in question in a court of law on the ground that he/she should or shouldn't have

acted in his/her discretion.16

The Governor will not be bound by the advice of his Ministers under the situation if the proposals

to be made in the form of an ordinance fall against the limitations of the Article 213(1) of the

Constitution or contrary to the Articles 31, 202, 254, 286, 288(2) and 304 of the Constitution. It is

natural that the Governor would exercise his individual judgment in this situation. This individual

discretion was applied by the Punjab Governor, Dr. D.C. Pavate, when the Akali-led-coalition

Government headed by Mr. P.S. Badal advised the Governor to issue an ordinance for the appoint-

ment of the Legislator as the member of the Board and Corporation. The Governor sent the ordi-

nance back to the Ministry and asked to show cause as to how and why this action was urgently

needed.

The ordinance can be issued by the Governor when the Bill on any issue is pending in either of the

Houses of the Assembly after it has been passed by the other, and the Government feels that pass-

ing of it is an urgent need. The Cabinet of the State will advise the Governor to promulgate an

ordinance regarding the same. For this purpose, the Governor may prorogue one of the Houses of

the Assembly in order to give effect to the Bill in the form of an ordinance. It is also interesting to

note that an ordinance can be given retrospective effect even from the date on which both the

Houses were in session.17

D.D. Basu is of the opinion that it is not a discretionary power of the Governor. He must exercise

this power with aid and advice of the Ministers. The Supreme Court has ruled that "the satisfaction

contemplated for the promulgation of an ordinance is not that of the Governor or President but of

the Council of Ministers.”18 In other words, the actual power belongs to the Council of Ministers

and the Governor is simply its mouth piece.

V. Executive Discretion in Administrative Legislations

14 INDIA CONST., art. LXXII, cl. 1.

15 INDIA CONST., art. CLXIII, cl. 1.

16 INDIA CONST., art. CLXIII, cl. 2.

17 Jnan Prosanna Das Gupta v. The Province of West Bengal, 1949 CriLJ 1.

18 Supra note 6.

11



In Indian democracy, it is rarely seen that the Judiciary interferes with executive discretion &

legislative wisdom. There may arise a situation where the civil liberties of an individual or a group

of individuals are violated by fanciful & unreasonable exercise of discretionary power by the ex-

ecutive in moving a legislation. Occasions may arise when the executive does not take the initiative

in bringing a legislation for the purpose of regulating or curbing a social evil or when the discretion

conferred on it by the legislature to enforce a legislation is not exercised. But for its prophetic

direction to the executive to structure its discretion in a field involving legislative wisdom, the

decision in Aeltemesh Rein v. Union of India19 would have been viewed as ordinary, or even crit-

icized.

The facts that can be gathered from the judgment show that a lawyer alleged to have committed a

criminal offence had been handcuffed while he was being brought to the trial court. The act of the

police in handcuffing the accused was challenged as contrary to law. In Aeltemesh Rein, the Su-

preme Court noted that neither the Union Government nor the Delhi Administration had issued

necessary guidelines on the circumstances under which the person arrested could be handcuffed

or fettered. In conformity with the criteria laid down in Prem Shankar Sukla,20 the court directed

the Union Government to frame rules and guidelines within three months and to circulate them

among the states and union territories.

The second direction in Aeltemesh Reinwas in connection with a provision in the Advocates Act,

1961. Section 30 of the Act has not been brought into force so far. This provision says that an

advocate entered in state rolls shall be entitled as of right to practice throughout the territories in

India to which the Act extends. However, the Court noted that the presence of certain laws which

prohibit lawyers from representing cases creates complicated questions of law.

VI. Separation of Power vis-a-vis Delegated Legislation

While probing into the possibility of directing the executive to put the provisions into force, the

court found a hurdle. In a previous case, A.K Roy v. Union of India, it was held that no writ of

mandamus could be issued to the executive on whom the legislature had already conferred the

discretion to bring a legislation into force. Although, it approved the above ruling, since in the case

under comment, the Court was obviously unhappy with the long and inordinate delay in imple-

menting the concerned provision of the law. True, that the discretion as to when to implement the

provision is conferred on the executive, courts do not interfere with this discretion. However, by

using an ingenious juridical technique and noting that the discretion given to the executive for

bringing the provision into force is not an arbitrary one, the court issued a direction to consider the

question as to whether the executive could exercise the discretion one way or the other. The sig-

nificance of Aeltemesh Rein lies elsewhere. The directions in the case involve important questions

of relationship among the three wings of government. Is the old notion of strict separation of pow-

ers practicable in modern democracy? If so, how far are the checks and balances permissible?

Procedurally, the directions in Aeltemesh Rein relate to the exercise of discretion by the executive.

Substantively, the directions are closely connected with the legislative powers of the executive.

19 Aeltemesh Rein v. Union of India, AIR 1988 SC 1768.

20 Prem Shankar Sukla v. Delhi Administration, AIR 1980 SC 1536.

12



While in one direction, the executive was asked to lay down relevant criteria for handcuffing, in

the other, it was asked to come to a definite conclusion on the question as to whether or not a

statutory provision be brought into force. Primarily, these are sectors where legislative wisdom

will be the guiding factor.

In a parliamentary system, the executive is the leader in the field of legislation. It decides which

area requires regulation and hence legislation. It decides whether or not to bring a legislation.

Suppose, in this decision-making process, the executive falters or it misguides or misleads the

legislature; are there no remedies available for the affected people? Are the courts left with no

power to intervene and correct the error? Judicial attitude to these problems has been lukewarm.

The Courts are only concerned with the constitutional validity of the legislations. Courts do not

entertain petitions challenging statutes on the grounds of non-application of mind or mala fide

intention of the executive.

In State of H.P. v. A Parent of a Student, Medical College, Shimla,21 a committee set up in pursu-

ance of a direction from the court recommended legislation for curbing ragging in college campus.

The High Court gave a direction to the government to implement that recommendation. But the

Supreme Court was reluctant to approve this judicial enthusiasm. It said that the direction was an

indirect attempt to compel the state government to initiate legislation. According to the Court, to

initiate legislation is a matter for the executive branch of the government and not one within the

sphere of judiciary.

VII. Conclusion

It is now well settled that in a rule of law society, unfettered discretion is a contradiction in itself.

Whenever discretion is vested in an authority, that authority shall exercise the discretion in an

objective manner considering all relevant and germane criteria and ignoring all irrelevant and ex-

traneous matters. The executive has to exercise the discretion vested in it in a just, fair and reason-

able manner.

21 State of H. P. v. A Parent of a Student, Medical College, Shimla, AIR 1985 SC 910.

13



Environmentalism in International Jurisprudence

Debasis Poddar1

Abstract

The Whaling in the Antarctic case is a landmark judgment of the ICJ that was

pronounced on the platinum jubilee of the Statute of ICJ. The judgment

created history with regard to the development of international environment

jurisdiction. Having the potential to transcend territorial jurisdiction of the

parties, the judgment grapples with contentious issues in relation to the

environment- a common concern of mankind. It is, therefore, appurtenant to

the ‘common heritage of mankind’ w.r.t. the international law of the seas.

In the present case comment, the author analysis the several nuances of the

Whaling in the Antarctic Case. The several contentions and issues raised as

well as the verdict of the court have been duly studied. Moreover, the

affirmative impact of the decision at hand has been noted with special regard

to South-East Asia. Furthermore, the author endeavours to acknowledge all

the criticisms directed against the said judgment and offers counter-

arguments to the same.

Key Words: Whaling, Japan, Australia, New Zealand, ICJ, Environment.


I. Introduction

In the wake of celebrations for the seventy-fifth anniversary of the UN Charter of 1945 and

the Statute of the International Court of Justice (hereinafter, the ICJ) under Chapter XIV of

the Charter alike, which were followed by a global lockdown due to the pandemic, issues

regarding sustainable environment resurface as a concern; having been, more than once,

hitherto, considered as ideological grandeur for armchair diplomacy. The Charter is stoic

about the environment as is the case for the Statute of the ICJ. After the Rio Summit (1992),

the ICJ created a chamber for environmental matters in 1993, which was followed by a

subsequent closure of the chamber in 2006 due to non-availability of cases. Indeed, in the

technical sense of the term, the chamber received no case for settlement. However, there

were but cases before the ICJ where concerns regarding sustainable environment were

pleaded in express terms and the Court dealt with such contentious cases within the limits of

its jurisdiction. For instance, in these following cases, concern for the environment was

pleaded in minute details:

Gabcikovo-Nagymaros Project (Hungary/ Slovakia) (25 September 1997)- ICJ Report.

Pulp Mills on the River Uruguay (Argentina v. Uruguay) (20 April 2010)- ICJ Report.

Whaling in the Antarctic (Australia v. Japan: New Zealand intervening) (31 March

2014)- ICJ Report.

Certain activities carried out by Nicaragua in the border area (Costa Rica v. Nicaragua)

(16 December 2015)- ICJ Report.

1 Debasis Poddar, Associate Professor (Law), St. Xavier’s University, Kolkata.

14



Interestingly enough, while there was no matter submitted before the relevant Chamber

created by the ICJ to adjudicate environmental matters, immediately after the closure of the

Chamber in 2006, environmental matters appeared to be on its rise before the Court. Shortly

after the first fifty years of its existence, the Court came across its maiden environmental

matter, in the technical sense of the term, in 1997. Within the short span of the last decade,

however, several cases concerning the environment have reached the Court and, at least three

of them are environmental matters in the technical sense of the term. While the rest are, by

and large, ridden with disputes between states vis-à-vis transborder harm and the consequent

international responsibility following the internationally wrongful acts of the concerned

errant states, at least one pertained to the issue of whaling in the Antarctic2 and had the

potential to transcend territorial jurisdiction of the state parties, inter se, thereby grappling

with contentious issues that are larger than international concerns alone and flag a larger

humanitarian concern vis-à-vis the global environment; something with the potential to get

elevated as a common concern of mankind within the universal jurisdiction of “the area” and

its resources, i.e., all mineral and marine living resources taken together. It, therefore,

appeared somewhat appurtenant to the ‘common heritage of mankind’ in accordance with

the jurisprudence of international law of the seas. The judgment, pronounced on the platinum

jubilee of the Statute of ICJ, created history with its contribution to the development of

global environmental jurisprudence and herein lies the difference between its earlier

environmental judgments and the judgment in the Whaling in the Antarctic case.

II. Case reference

By virtue of an unprecedented judgment, hereby identified for the forthcoming case

comment, the ICJ, thereby continued its ongoing march, w.r.t. the rule of international law

towards a just world for the whales of the Antarctic Ocean, as a call of the wild, in reference

to the century-old magnum opus authored by Jack London. The ICJ, thereby condemned the

whaling activities of Japan in the Antarctic and directed it to refrain from such activities in

the polar region, which seem to be contradictory to their treaty obligations under the

Contention for the Regulation of Whaling, 1946 (hereinafter, the CRW), in general, and the

obligations under Article VIII of the Convention in particular. The ICJ judgment mentioned

above is scheduled to strengthen the International Whaling Commission (hereinafter, the

IWC) regime in the times ahead. Also, the judgment conveys to other states indulging in

such clandestine activities a clear caution against fishing in the troubled waters of the seas.

Perhaps the first of its kind, the case exposed the vulnerability of whales in the Antarctic-

which, otherwise, resemble monsters w.r.t. their physical features- in wake of the aggression

of Japanese Inc. who infiltrated the region by using factory ships. Indeed, Australia filed the

case and, thereby fulfilled the hardcore procedural criterion under Article 59 of the Statute

of the ICJ; a long battle was but initiated at the bottom by stakeholders of the international

civil society movement, e.g., the International Fund for Animal Welfare, World-Wide Fund

for Nature, Greenpeace, etc., by convincing the Australian government to take legal action

2 Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), 2014 I.C.J. 226 (Mar. 2014).

15



against its Japanese counterpart on whaling for crude, commercial purposes under the

(dis)guise of scientific whaling and, thereby disturbing the fragile ecological balance of the

polar region of the Antarctic, adjacent to Australia. Later, New Zealand intervened in the

matter as a state party with the same geopolitical reasoning as was apparent on the face of

the record. At the bottom, however, covert diplomacy on the part of international civil

society stakeholders prepared the New Zealand government to showcase a reflection of

global public’s opinion before the Court. Also, the movement negotiated with the Japanese

government as well to minimized the influence of vested corporate interest on the same and,

thereby prepared the state to face a legal battle, in good faith, on the question of whaling in

the Antarctic to the gross detriment of the Southern Ocean Sanctuary. Thus, the ICJ’s

contentious case on whaling in the Antarctic offers a culmination point vis-à-vis a head-on

collision between commercial activities (in the name of activities for scientific research) by

Japanese Inc. and the survival of several species of whales, e.g. Fin, Humpback, etc., with a

strategic bearing on the polar ecosystem.

III. Circumstance

On 1st June 2010, Australia instituted proceedings against Japan for alleged breach of

international obligations concerning whaling. In its pleading, Australia contended the

following point that (1) Japan has breached and is continuing to breach obligations under

paragraphs 7(b) and 10(e) of the Schedule to the ICRW3, and (2) Japan has also breached

and is continuing to breach, inter alia, its obligations under the Convention on International

Trade in Endangered Species of Wild Fauna and Flora4 (hereinafter the CITES) and the

Convention on Biological Diversity (hereafter the CBD).5

Australia, thereby requested the Court to adjudge and declare that Japan is in breach of its

international obligations in implementing the second phase of the Japanese Whaling

Research Programme under Special Permit in the Antarctic (hereinafter JARPA II) in the

Southern Ocean and to lay down the following orders:

cease implementation of JARPA II;

revoke any authorizations, permits and licenses allowing the activities which are a

subject of the present application; and

Provide assurances and guarantees that it will not take any further action under the

JARPA II or any similar programme until the same has been brought into conformity

with its obligations under international law.

With these points in its prayer, Australia initiated the case before the ICJ6 and later,

on 20 November 2012, New Zealand filed a declaration of intervention in the case

3 Convention, International Whaling Commission, http://iwc.int/private/downloads/1r2jdhu5xtuswws0oc

w04wgcw/convention.pdf. 4 E-Text, CITES, http://www.cites.org/eng/disc/E-Text.pdf. 5 Convention on Biological Diversity, UNITED NATIONS, https://www.cbd.int/doc/legal/cbd-en.pdf. 6 ICJ Press Release (unofficial), No. 2010/16 ICJ (Jun. 1st, 2010), http://www.icj-

cij.org/docket/files/148/15953.pdf.

16

http://iwc.int/private/downloads/1r2jdhu5xtuswws0oc%2520w04wgcw/convention.pdf

http://iwc.int/private/downloads/1r2jdhu5xtuswws0oc%2520w04wgcw/convention.pdf

http://www.cites.org/eng/disc/E-Text.pdf

https://www.cbd.int/doc/legal/cbd-en.pdf

http://www.icj-cij.org/docket/files/148/15953.pdf




under Article 63 of the Statute of ICJ to adjoin it in the proceedings.7 In bullet points,

New Zealand contended that,

Article VIII (of the ICRW) forms an integral part of the system of collective

regulations established by the Convention.

Parties to the Convention may engage in whaling by a Special Permit acquired only

in accordance with Article VIII.

Article VIII permits the killing of whales under Special Permit only if an objective

assessment of methodology, design and characteristics of the programme

demonstrates that the killing is only “for purpose of scientific research”; and

The killing is necessary for, and proportionate to, the objectives of that research and

will have no adverse effect on the conservation of stocks; and

The Contracting Government issuing Special Permit has discharged its duty of

meaningful cooperation with the Scientific Committee and the IWC.

Whaling under Special Permit that does not meet these requirements of Article VIII,

and not otherwise permitted by the ICRW, is prohibited.

Japan contested such a wider interpretation of Article VIII of the ICRW by Australia and

New Zealand with the consequence that both sides hardened in the midst of it; the Court

found no other option left but to determine what the law is. International public opinion

facilitated the Court to accelerate the process.

IV. Issues in Question

The key legal issue in the case poses a moot question- the legality of large-scale “Special

Permit” whaling under JARPA II, that whether and, if at all, how far the same is in

consonance with multilateral Environmental Agreements (hereinafter, MEAs), e.g. the

ICRW, read with the CITES and the CBD, among others. Besides, subtle political issues

may and do play an instrumental role in the assessment of the impact of the Court on judicial

policymaking. Indeed, as per the separate opinion of Judge Greenwood, the Court was not

concerned with the moral, ethical or environmental issues relating to Japan’s whaling

programmes, in the present case, but only with whether JARPA II is compatible with Japan’s

international legal obligations under the Convention. 8 Elsewhere, Judge Bennouna noted

that the issue of whaling carries a heavy emotional and cultural charge which, albeit

nourished over the centuries by literature, mythology and religious writings, must not

interfere with the task of the Court.9 Despite claims, however, the Court suffered a setback

from allegations of getting carried away by these extraneous factors.

V. Judgment in Brief

7 ICJ Press Release (unofficial), No. 2012/34 ICJ (Nov. 21st 2012), http://www.icj-

cij.org/docket/files/148/17182.pdf. 8 Supra note 2, separate opinion of Judge Greenwood, ICJ-CIJ, 1, http://www.icj-

cij.org/docket/files/148/18150.pdf. 9 Ibid, dissenting opinion of Judge Greenwood, ICJ-CIJ, 1, http://www.icj-

cij.org/docket/files/148/18144.pdf.

17









Summary of the ICJ judgment in the Antarctic Whaling case has been articulated by the

Court in following heads:

The Court concluded that Japan’s objection to the Court’s jurisdiction cannot be upheld

since the whaling case was not one concerning the delimitation of maritime zone which

is covered by the instrument of reservation issued by Australia and cited by Japan in

favour of its contention.

With regard to the phrase, “for purposes of scientific research,” the Court considered that

the two elements of the phrase, “scientific research” and “for purposes of” are

cumulative. Even if whaling programmes involve scientific research, the killing, taking

and treating of whales pursuant to such a programme does not fall within Article VIII

unless these activities are “for purposes” of scientific research.

Turning to the meaning of the term, “for purposes of,” the Court observes that even if

the stated research objectives of a programme are the foundation of a programme’s

design, it need not pass judgment on the scientific merit or importance of those objectives

in order to assess the purpose of killing of whales under such a programme, nor is it for

the Court to decide whether the design or its implementation offers best possible means

of achieving its stated objectives.

The Court observed that a state often seeks to accomplish more than one goal when it

pursues a policy. Accordingly, the Court considered the possibility of government

officials having motivations that go beyond scientific research and therefore, it did not

preclude the conclusion that a programme is for purposes of scientific research within

the meaning of Article VIII. At the same time, such motivations cannot justify granting

of Special Permit for a programme that uses lethal sampling on a scale larger than what

is reasonable in relation to achieving the programme’s stated research objectives.

Thus, from the given summary of the judgment,10 it seems prudent on the part of the Court

to not entertain neither the arguments relating to scientific research advanced by Japan nor

the arguments regarding extra-legal underpinnings advanced by Australia and New Zealand

albeit the hardcore, legal reasoning from the respective sides. The Court thereby decided the

matter only on the basis of international law and obligations involved therein; something

Japan did breach in the course of its whaling in the Antarctic.

VI. Justice turned Global

The proceeding, with its clichéd of classical legalistic reasoning on the apparent face of the

record, behind an otherwise neat texture of judicial process, conveys a judicious face of the

Court which seems to have been smiling in silence. Perhaps the foremost of its kind, the

judgment upheld the right to survival of other species over and above human interest vis-à-

vis trade and commerce, albeit under the (dis)guise of science and technology. After the Sea

Shepherd Conservation Society, albeit charged with rhetoric of its own, it may not be

farfetched to infer that whales won the case against homo sapiens despite both the Court

10 ICJ-CIJ, http://www.icj-cij.org/docket/files/148/18160.pdf.

18




along with its (international) law belonging to the latter.11 Moreover, this marks a victory of

humanity against human miserliness of not allowing sufficient breathing space for other

species in their own natural habitat. Whale, as a stakeholder, represents all (other) species-

both flora and fauna of the planet- on one side against homo sapiens with its wretched

predatory praxis on the other. For the protection of endangered species toward the

conservation of biological diversity, through international legal instruments like the CITES,

the CBD, the ICRW, etc., the international community assumes the role of a trustee on behalf

of all stakeholders of the Earth. The ICJ judgment, perhaps due to its strategic position,

observes silence on these points of concern while delivering universal humane justice to this

end. The world, still being stuck with an archaic positivist obsession with utilitarian

fallibility, is yet to appreciate the underlying potential of environmentalism as the order of

the age, in general, and of globalization, in particular. Import of a humane face into the

hitherto corporate globalization is imperative to complete the process.

Last but not the least, from a deep ecological perspective, the judgment offers jurisprudence

of its own. After all, whales belong to mammal fraternity and are, thereby hyperlinked to

humanity with a closer connection than others even though others are not far from homo

sapiens in the symbiotic sense of the term.12 While self-interest is a point apart, in the larger

interest of global governance, the international community ought to arrange for the survival

of whales as a top marine predator to facilitate the fragile polar ecosystem from further

jeopardy in times ahead. This is no truism but pragmatism for the survival of humankind,

which is what public international law is meant for.

Thus, through its judgment, the Court may have strived to attain an optimal balance between

the legalistic approach of the existing world order and an emerging approach in law which

is deemed to reign the world in times ahead. Also, albeit arguably, the Court ought to strike

the optimal balance between divergent, if not competing, claims between pressure groups,

e.g. Transnational Inc., civil society movement, and the like across the world. While dealing

with whaling in the Antarctic Ocean, the Court, thereby tamed an otherwise untamed trader-

turned-tyrant pressure group and preached that the same is not to turn an environment of

trade into a trade of the environment.13 In course of the judicial process towards just world

11 The whales have won: ICJ rules Japan’s southern ocean whaling not for scientific research, SEA SHEPHERD

CONSERVATION SOCIETY, http://www.seashepherd.org/news-and-media/2014/03/31/the-whales-have-

won-icj-rules-japans-southern-ocean-whaling-not-for-scientific-research-1569. 12 BILL DEVALL & GEORGE SESSIONS, DEEP ECOLOGY 67 (ed. Gibbs Smith, 1985).

“A nurturing non-dominating society can help in the “real work” of becoming a whole person. The “real

work” can be summarized symbiotically as the realization of “self-in-self” where “self” stands for organic

wholeness. This process of full unfolding of the self can also be summarized by the phrase, “No one is

saved until we all are saved”, where the phrase “one” includes not only me, an individual human, but all

humans, whales, grizzly bears, whole rain forest ecosystems, mountains and rivers, the tiniest microbes in

the soil, and so on.” 13 PETER SINGER, PRACTICAL ETHICS 118 (2d. 1993).

“The great apes- chimpanzees, gorillas, and orangutans- may be the clearest cases of non-human persons,

but there are almost certainly others. Systematic observation of whales and dolphins has, for obvious

reasons, lagged far behind that of apes, and it is quite possible that these large-brained mammals will turn

19

http://www.seashepherd.org/news-and-media/2014/03/31/the-whales-have-won-icj-rules-japans-southern-ocean-whaling-not-for-scientific-research-1569

http://www.seashepherd.org/news-and-media/2014/03/31/the-whales-have-won-icj-rules-japans-southern-ocean-whaling-not-for-scientific-research-1569



order, through the development of its own jurisprudence, the Court unwittingly contributed

to the waves of an initiative for a radical international movement to voice concerns regarding

the Global South against the tyranny of its counterpart over the global commons and their

environment.

Despite strict silence on the question of morality, the judgment offers a discourse with

potential underpinning on the interface between law and morality. Global justice, as the

teleological end of humanity, remains a distant dream sans resort to law as one of the means

to reach its end. Law, until married to morality, ought to fall short of being instrumental for

the progressive development of mankind toward a just world. Law, sans morality, ought to

turn into a tyranny of reasoning. Also, in the discursive sense of the term, reason is charged

with politics of its own. For instance, the way WTO Dispute Settlement Body and its

Appellate Authority theorize that environment differs from the way environment stands

theorized by UNFCCC Meetings of Parties, etc. Reference may be made to the ICJ Chamber

for Environmental Matters and the way it got defunct in the absence of any caseload while

the environment continues to be threatened across the world. In such circumstance, eight

years after the Chamber became defunct, the ICJ judgment revived controversy upon the

(f)utility of a chamber for Environmental matters within the world court.

So far as the question of impact assessment of the judgment is concerned, it would depend

upon whether and how far the ruling has had the potential to end whaling by Japan in the

Antarctic and the effect of international rebuke on domestic trade vis-à-vis whale meat.14

Indeed, Japan has ignored the international ignominy to this end as a foreign trade policy for

a long time, which is inimical to the legitimacy of its policy towards the world. After the

decisive legal position of the Court, its foreign policy lacks the legality and thus, is

increasingly intimidating even for a megalomaniac merchant like Japan to afford the

contentious international trade of whale meat.

VII. Impact Assessment on South Asia

In its judgment, the ICJ discouraged aggressive trade with modern technology that would

risk the survival of certain species in particular regions on diversified counts vis-à-vis two

international legal regimes: CITES of 1973 and CBD of 1992. India being a state party to

out to be rational and self-conscious. Despite an official moratorium, the whaling industry slaughters

thousands of whales annually in the name of ‘research’ and the whaling nations are seeking to overturn the

International Whaling Commission’s moratorium so that they can return to full-scale commercial whaling.” 14 Julia Bedell, On Thin Ice: Will the International Court of Justice’s Ruling In Australia v. Japan: New

Zealand Intervening End Japan’s Lethal Whaling in the Antarctic?, COLUM. J. ENVTL. L., 12 (2015).

“As a result of the Court’s decision, Japan now faces both external and internal pressure to discontinue the

JARPA program. Externally, if Japan does continue with NEWREP-A, it will face pushback from the

international community.

The most promising outcome from the judgment is its potential impact within Japan. The ICJ judgment

represents an international exposure of wrongdoing; one that Japanese citizens can no longer ignore. Even

if continued external pressures remain insufficient in bringing Japan to fully discontinue its lethal whaling

practices, such pressures could become catalysts for unleashing Japan’s internal revolt against the

government’s longstanding whaling industry.”

20



both of them, the ICJ judgment does carry great impact upon the strategic relations of South

Asia. Precedents are, thereby set for similar cases, such as, (i) judicial policymaking in

favour of conservation and environment-savvy trade conveys strong caution for the maritime

industry to not exceed the threshold limit, and (ii) gross aberration of international

obligations cannot continue to avert justice with impunity. Indeed, precedent lacks a binding

value to the Court, as laid down in its Statute,15 however, such a judgment of the world court

ought to exert an impact on international relations in one way or another and South Asia is

no exception to this end. Henceforth, endangered, marine living species of the Indian Ocean

ought to experience better international safeguards against its genocidal exploitation for

international trade even if the same usurps the cloak of so-called research and development,

and the like. The Indian Ocean, along with others, thereby has emerged as a conservatory of

marine flora and fauna, in general, and all threatened species, in particular, against illegal

aggression against endangered species, either in the subcontinent or otherwise. Indeed, the

judgment of the Court contributes to the progressive development of international law

toward “a just world”, to quote B. S. Chimni; in a similar context to that of global good

governance.

VIII. In Lieu of a Conclusion

Albeit without mention, in Whaling in the Antarctic case, the Court has grappled with a

perennial characteristic of the law as social- although political- institution to protect the

rights of the weak from highhandedness of the might; thereby safeguarding the balance of

power in the universe. Indeed, under the UN Charter, international peace and security is

meant for the people. In this millennium, while flora and fauna, even beneath the surface of

the seas (a common heritage of mankind), appears to be in peril, the Court has extended its

protective jurisdiction to all creatures and, thereby toppled the oft-quoted fiction available

in the USA and applicable to all sundry, civilized nations: “it is a court of law; not a court

of justice.” It was an oft-quoted folklore to the (dis)credit of hitherto bureaucratic judicial

traditions across the world.

Perhaps in its maiden effort to this end, the Court has transcended black-letter-law of

international legal praxis and, thereby upheld justice along with its commitment towards

humanity. Also, in response to a positivist cynicism against the judgment, w.r.t. Article 2 of

the Statute of the ICJ, credit is due to judges who laid down the majority opinion since they

upheld the independence of judiciary over and above trade diplomacy. Also, they appear

conscious about the solemn declaration by themselves under Article 20 of the Statute, that

they will exercise powers “impartially and conscientiously”. Amidst the cacophony of

otherwise positivist conventional regimes, the character of the coveted seat of justice, more

often than not, gets lost in oblivion while the Statute- annexed to the UN Charter itself-

constitutes no less black-letter-law than other conventional regimes since the UN Charter

resembles the Constitution of the world; albeit, in a somewhat rhetoric (and not technical)

sense of the term. As a final count, irrespective of the polemics, the Court has condemned

the holocaust beneath the surface of the seas and extended global justice to other innocent

15 Statute of the ICJ, Annex of the UN Charter, 1945, art. LIX.

21



creatures, over and above international justice for civilized nations in conflict and, thereby

upheld its institutional character as a court of justice rather than a court of black-letter-law

alone.

22



Delving the Role of WHO vis-a-vis Covid-19

Karan Kataria and Dipshikha Kumari1

Abstract

Study and investigation can be said to be search for truths, for facts and for certainties.

Investigation is, in fact, the foundation of setting up future course of action and policies to

overcome hurdles faced in the past which can be used for a healthy future. The World Health

Organization has a central role to play in the case of issues pertaining to epidemic and

pandemic and a proactive approach is required by the organization to curtail such problems.

In this paper, the authors have tried to analyse the actions of the WHO and the approach

adopted by the organization to address the pandemic. The authors have tried to critically

analyse the allegations forwarded against the role of WHO. This paper is a small attempt to

highlight the importance of such International organizations at the time of pandemic and the

research proposes to develop a framework for the shortcomings that have engulfed the

transparency, Independence and accountability of an international organization like WHO.


I. Introduction

There are several specialized agencies of the United Nations, one of which is the World Health

Organization, which is entrusted with the responsibility to look after the international public health

and wellness. The organization was established in 1948 on the first day of April, which is now

observed and celebrated as World Health Day. WHO was not formulated as a process of

spontaneous generation. As we look towards it today, it represents the culmination of over 180

years of strivings. Initially, in early 19th century, such a model worked with shallow objectives

which only aimed at intergovernmental partnership and support in solving and combating health

issues. For the first four decades, lack of scientific knowledge was a major drawback for such an

international agreement. Since then, with the advancement of medical science and research has

increased the possibilities of fruitful international cooperation that has benefited all of mankind.

The WHO had its predecessor as the League of Nations Health Organization but the first

antecedent of WHO was the International Sanitary Conference organised by the French

government in 1851 in Paris. It was aimed at developing international health as a systematic area

of regulation with prescribed framework which entailed the action related to the field in mid

nineteenth century. The Conference was a reaction to pandemic diseases which were coming

menacingly from various parts of the world especially Western Europe. It was aimed at combating

such pandemics like cholera, yellow fever and the bubonic plague. The reason that rooted the

conference was the need to protect the people and territories from the outbreak of diseases. The

objective with which the conference was initiated was to develop and evolve new modern and

standardized methods to combat such epidemic outbreak. It majorly included but was not limited

to quarantine.

The main agenda of the Conference was to discuss and deliberate upon cholera, a disease which

1 Karan Kataria, CEO, Aadi Shakti Shiksha Foundation; and Dipshikha Kumari, Student, B.B.A. LL.B. Northcap

University, Gurgaon.

23



had symptoms like vomiting, diarrhoea, dramatic onset cramps, etc.2 The conference was attended

by twelve governments including United Kingdom, Spain, Austria, etc. There were several

meetings organized with an aim to develop a uniform system of maritime quarantine and to

construct a grit of doctors, researchers, scientists and diplomats so that they could collectively

engage in methods that can be utilized in the disinfection of vessels and ports. The urge for

development of such mechanisms was crucial because the disease cholera travelled from Asian

region to parts of Western Europe and Several Parts of America during nineteenth century but the

said conference did not bear fruitful results initially but a Convention that would deal with outbreak

of cholera was passed in the year 1892 and later in 1897 a Convention for plague also came into

existence.

In 1913, just before the World War-I, Rockefeller Foundation found International Health Division

(IHD). It was a private health philanthropy and operated in US, China, Latin America, Europe as

well as various different regions of the world. The organization wanted to spread western medicine

and promotion of American medical education to the rest of the world. John Farley termed this

organization as informal ambassador of United Nations. 3 Later an important agency was

formulated in 1902 in America which was termed as Pan American Sanitary Bureau which was

renamed twice; firstly, as Pan American Sanitary Organization in 1920 and Pan American Health

Organization in late 1950s. Initially the membership to the Organization was limited to certain

Latin American countries it beholds the work of International Health Division but took several

initiatives to combat bubonic plague and smallpox.

The League of Nations Health Organization came into existence post world war one. Mainly

because of the disruptions, troop movements, and social turmoil associated with World War I and

its immediate aftermath, fearsome epidemic diseases now loomed again in the “East”: typhus in

Russia, which threatened to spread through Poland to Western Europe because of the thousands of

people fleeing from the epidemic and from famine, and cholera, smallpox, dysentery and typhoid

in the Ottoman Empire, which threatened to spread through Greece. Article 23F of covenant

empowered the LNHO it provides to “take steps in matters of international concern for the

prevention and control of disease.”4A League-sponsored conference in April 1920, attended by

France, Great Britain, Italy, Canada, Japan, Poland, and the United States (which not far in the

future opted not to become a member of LNHO) and representatives of the OIHP and the League

of Red Cross Societies (LRCS) with full voting rights, recommended a temporary epidemic

commission, established in May 1920, whose task was to help direct work in afflicted countries,

primarily Poland, at least initially.

Despite the fact that there were communications, occasional cooperation, and some overlap of

personnel between the OIHP and the LNHO, the leaders of both agencies strove to maintain their

independence. For leaders of the OIHP, international health work primarily consisted in the

collection, validation, and dissemination of epidemiological information. Leaders of the LNHO

criticized the absence of executive function in the OIHP and made clear the LNHO was more than

2 NEVILLE M. GOODMAN, INTERNATIONAL HEALTH ORGANIZATIONS AND THEIR WORK (1952).

3 JOHN FARLEY, TO CAST OUT DISEASE: A HISTORY OF THE INTERNATIONAL HEALTH DIVISION OF THE ROCKEFELLER

FOUNDATION 1913–1951 (2004). 4 FRANCIS PAUL WALTERS, A HISTORY OF THE LEAGUE OF NATIONS 59 (1952); Supra note 2 at p. 102.

24



a sanitary watchtower.5 Another difference between the two organizations was that the language

used in OIHP communications and publications was almost exclusively French, whereas the

LNHO was more diversified in its staff and used both French and English in its publications. (A

group portrait of part of the staff of the League of Nations Health Organization appears in Figure

1.2.) For example, of the 66 officers and clerical staff who had appointments in the LNHO’s

headquarters in Geneva in 1932, the majority were Swiss (17), but there were 8 Brits, 6 Poles, 1

American, and 1 Chinese.6 A difference between the two agencies was that the focus for the OIHP

was the border crossing of infectious disease, whereas the LNHO went well beyond that to the

consideration of the health conditions within countries and between regions.

By the mid-1920s, the architecture of the LNHO included a Health Committee and a Health

Section that was part of the League of Nations’ Secretariat. The Health Committee was composed

of 16 senior officials from national public health services or medical experts selected for their

technical qualifications and not as representatives of their governments (hence some American

membership). The intention was to construct a technical international body of civil servants. The

Health Section was the executive organ of the LNHO.7 By 1933, the LNHO’s staff had grown to

18 technical officers. Non-professional personnel numbered 35 individuals, and nearly 100 experts

in national health administrations and science research centres collaborated actively with the

LNHO.8 Thanks to a broad and elastic charter, the LNHO undertook a variety of changing tasks,

and in the process, helped to define the meaning of international health. In March of 1943, Gautier

wrote an 11-page confidential report entitled “International Health in the Future.”9

This report contained an outline of a future “supranational” health agency, meaning that the

projected agency would take the initiative of intervening in emergencies “without waiting for a

governmental request.” Gautier considered the OIHP an unworthy German- controlled

organization that should not be revitalized after the war. He also recognized that the LNHO would

not survive in its present form but could, he hoped, be the basis for a new agency independent of

the “interference” of diplomats. Gautier’s document contained a sentence that in a more refined

form would later be incorporated in the Preamble to the WHO Constitution: “For health is more

than the absence of illness; the word health implies something positive, namely physical, mental,

and moral fitness. This is the goal to be reached.”10It was a clear statement of the socio-medical

perspective that would later inspire and identify some members of the WHO. The Constitution

stipulated a function that would be a matter of discussion for years: The WHO was entrusted with

the role to direct and coordinate leaders on international health.

In 1944, the LNHO made a comprehensive study of health conditions in Europe that was turned

over to UNRRA. In October 1944, Gautier, US Surgeon General Thomas Parran, Frank Boudreau

(an American who had been executive director of the Milbank Foundation and executive secretary

of League of Nations Health Organisation), and Rockefeller IHD Associate Director George K.

Strode, along with other medical leaders, met and agreed on two principles: the need to build an

international health organization for the post-war period and the importance of the United States

5 MARCOS CUETO, THEODORE M. BROWN, ELIZABETH FEE, THE WORLD HEALTH ORGANIZATION: A HISTORY 21

(2019). 6 Ibid, at p. 21. 7 Ibid, at p. 22. 8 Ibid. 9 Ibid, at 33. 10 GAUTIER, CONFIDENTIAL-INTERNATIONAL HEALTH IN THE FUTURE, 1 (1943).

25



taking the initiative to convene “as soon as possible” a conference on world health.11 It was out of

this conference that the World Health Organization would emerge.

II. Objectives And Function of World Health Organisation

The objective powers and function of any organization or body is derived from a document which

is termed as a statute or the constitution, the objectives powers and function of the World Health

Organization is derived from its constitution The Constitution of WHO was adopted in a

conference known as the International Health Conference which was held in New York from 19

June-22 July 1946, the constitution was signed on 22 July 1946. Total 61 representatives of various

countries signed the constitution, and same was entered into force on 7 April 1948.

The aim and the objectives of the organization are fulfilled through the performance of various

factions that are enshrined in the Constitution are as follows:

The WHO should direct and coordinate between the authorities for International Health work

It is the duty of the organization to construct and promote collaboration with UNO and its

various specialized agencies, states health department and ministries, professional group,

nongovernmental organizations or any other body that it deems fit

The WHO should forward the assistance upon request of the said government for the purpose

of strengthening the health services.

In the case of emergencies, the organization must assist and share required technical support

and necessary aid to the government upon request or otherwise.

Health services shall be provided or the assistance in this regard be furthered upon the request

of the United Nations Organization to the special groups such as individuals of trust

territories.

Administrative and technical services which shall include epidemiological and statistical

services but not limited to these shall be established and maintained by the organization.

The organization shall perform invigorating, stimulating and advance work and strategies to

combat and exterminate the epidemic, endemic, pandemic and any other such diseases

To avert the accidental injuries the organization shall promote, direct and coordinate with

other specialized agencies

The organization for the purpose of improving and providing the basic facilities of nutrition,

sanitation, clean drinking water, housing, economic or working conditions or any other factor

of environmental hygiene shall cooperate with the states and specialized agencies.

For the purpose and contributing to the substantial advancement of the heart the organization

shall promote cooperation among scientific and related groups

The organization is also empowered to propose conventions, regulations, agreements and to

advance any recommendation concerning to international health.

III. Role of WHO at the Time of Pandemic

The World Health Organization being an International body of Imminent importance has central

and crucial role to play at the outbreak of an epidemic or a disease that might turn into a pandemic

11 Supra note 5 at p. 33.

26



the World Health Assembly through its various resolution has entrusted the role and duty upon

the WHO to provide the Nation states with all the possible support both technically or otherwise

regarding the disease, the resolution 56.19 directs the organization to prevent and control the

influenza pandemic and annual epidemics resolution WHA58.5 provides for preparing and

responding to the pandemic influenza various other resolutions also directs the organization to take

such other substantial steps at the crucial time. The International Health Regulation 2005 has

enforced the duty upon WHO to coordinate with the Nation states across varied actives, WHO

shall work for production of pandemic vaccine, the process for rapid containment shall be

coordinated and early evaluation of pandemic severity shall be carried out by the organization.

IV. International Health Regulations, 2005

World Health Assembly in 200512 adopted a legally binding document which provides for an

international legal framework that envisage to avert, control or acknowledge to a risk of public

health which might or has a possibility to spread between countries the document is termed as The

International Health Regulations (IHR, 2005) this document is binding upon 194 states around the

globe.

The regulation imposes the duty upon the state to inform the World Health Organization as soon

as possible of the outbreak of a disease or a health problem that has or might affect the public at

large. Within twenty-four hours of assessment according to the standards developed by WHO for

the said specific purpose that influenza has been detected which has been caused by a new subtype

in a human being, these obligation and requirement are enshrined under Annexure-2 of the

regulation with the specified guidance. After the state has notified WHO about the influenza the

state shall further communicate the organization an elaborated public health data which shall

include but not limited to definitions, cases, laboratory test, source of risk, type of risk associated,

number of cases reported, number of deaths occurred, conditions that are affecting or may affect

the spread of influenza. If the state in which influenza outbreak took place and it thinks that there

is no event or notified cases involving a disease or virus which has a pandemic potential, the state

shall report the same to WHO so that the information can be communicated to other countries so

that they have the knowledge of imported and exported human cases in this regard.

The Regulation has further mandated and authorized WHO to call for and collect the information

and report both from official and unofficial sources that reveal the information regarding

significant International Public health risk. After the accumulation of the reports the WHO shall

screen the reports so obtained and sought verification from the respective country about such data

revealed in the report and if the screening provides the ground that the matter can affect

International public health and is a case of influenza pandemic states shall revert to WHO within

a prescribed time and furnish such relevant information regarding public health. 13

Even if the potency of the influenza virus or disease is not yet proved must be notified to the

12 Resolution WHA 58.3 Revision of the International Health Regulations. In: Fifty-eighth World Health Assembly,

Geneva (16-25 May, 2005), https://apps.who.int/gb/ebwha/pdf_files/WHA58-REC1/english/A58_2005_REC1-

en.pdf. 13 PLOTKIN, HARDIMAN, GONZALEZ-MARTIN AND RODIER, INFECTIOUS DISEASE SURVEILLANCE AND THE

INTERNATIONAL HEALTH REGULATIONS 2 (2007).

27



organization as per the 2005 regulation if they fall within two assessment criteria, (I) if the impact

on public health is serious, (II) if the said event is uncommon and unanticipated (III) if the said

risk has a significant potential of spreading internationally (IV) there is a notable risk of

International travel or trade restriction

The regulation has also authorized the countries to construct a mechanism for the detection,

assessment of the influenza virus, the information can be obtained from the airlines, ships and

other transpiration vehicle scarring traveller the countries are permitted to several medical or

public health interventions following the due process and requirements for example an

international traveller in usual circumstances can be examined only after a prior approval has been

taken in this regard bit in the critical and dire circumstances they could be overlooked but due

process and measures must be opted the country is also obliged to look after their basic facilities

when they are isolated or quarantined.14

At the time of International health risk, the WHO should continuously surveillance the public

health, support the countries and international responses pertaining to health risk must also be

coordinated by WHO. In exceptional circumstances the IHR empowers the Director- General of

WHO the power to discover and determine the problem pertaining to public health as an

international concern, in such cases the DG of WHO must seek advice from a board of external

experts, after such advice he can issue temporary recommendations to the respective states so that

the risk of International spread be prevented and reduced and proper distancing from interference

with international traffic and commerce be maintained. The temporary recommendation should be

given after following the laid procedures in the regulation.15The director General is also designated

with the duty to make global pandemic phases, while making such phases the provisions of the

regulation should be congruous to phases so made and due consultation with affected countries

and other organization is taken hold of. One of the major actions that the WHO should take at the

time of an emerging pandemic shall be that of selecting the vaccine strain and allocating the time

for vaccine production.

Rapid containment of the initial emergence of pandemic influenza is also an effective measure to

combat the outbreak, the decision with regard to rapid containment of pandemic influenza shall be

taken by the respective government and administration, whereas the WHO shall assist them with

the same so that the spread could be prevented and transmission can be delayed of such influenza

which might turn into a pandemic such action must be sought just after the initial detection of the

influenza virus. Such methods of rapid containment are extraordinary and dynamic actions which

helps to prevent the outbreak and an effective control mechanism be considered.

There is already a proper laid down guidance provided by the WHO16 for containment which

provides what and how it should be done and it could serve as a foundation for further operational

plans.

14 World Health Organization. International Health Regulations (2005). ISBN 978 92 4 158041 0. Articles 23.32, 37-

8 and Annexes 8-9. 15 World Health Organization. International Health Regulations (2005). ISBN 978 92 4 158041 0. Articles 12, 15, 17-

18, 48-49. 16 WHO Interim planning guidance for rapid containment of the initial emergence of pandemic influenza, WORLD

HEALTH ORGANIZATION (Oct. 2007),

https://www.who.int/influenza/resources/documents/RapidContProtOct15.pdf?ua=1.

28

https://www.who.int/influenza/resources/documents/RapidContProtOct15.pdf?ua=1



If the rapid containment is implemented the national administration and WHO shall timely look

into all the relevant factors to determine if there is a presence of compelling evidence that inference

about potential pandemic trait of the influenza virus and it can be transmitted from human-to-

human and could result in community level outbreak and there are sufficient reasons that the rapid

containment should not be considered. WHO is also required to be in consistent touch with the

respective state and monitor the situation it is also obliged to maintain an agile approach of the

situation so developed due to influenza virus.

To aid the states and national authorities an assessment of pandemic severity shall be done by

WHO so that it can be clearly identified and planned what amount and level of intervention must

be sought for response. But in the initial stages of outbreak it shall not be feasible for WHO to

make assessment in the early course of outbreak but it shall serve a major purpose and assist not

only the hit country but others too on various grounds such as deciding upon whether they should

consider mitigation measures or not, the use of available medicines and vaccines and other medical

measures, the health care could be managed properly and continuously, all the queries and

information be communicated to the public via media. The pandemic severity can be assessed

through health, societal and economic effects, WHO assess the severity primarily on the basis of

observable effects on health17 as the other factors may create a dichotomy in the masses as

economic and societal effects may differ from country to country.

V. Role of Multilateralism

Hans Blix, Swedish Diplomat once stated that “International Cooperation, multilateralism is

indispensable” and rightly so, in the times of epidemics and pandemics. There is no denying that

global issues call for collective effort and the brutal world-wide spread of coronavirus amidst

human beings is a global issue that requires multilateralism to respond to COVID-19 effectively.

With multilateralism across the world wherein, multiple countries form an alliance with the

intention to pursue a common objective, there can be exceptional coordination of measures, global

economic strategies as well as sharing of medical research through which we can effectively fight

against the pandemic.18

Having a long history, the concept of multilateralism has defined our world, though it is chiefly

connected with the period after World War II. The multilateral agreements led principally by the

United States were flourishing after the era of World War II.19 The outbreak of Covid-19 has in

reality tested the multilateral system and the global governance along with the national institutions

of governance across the globe.

The World Health Organization’s principal role is to lead, coordinate the world-wide efforts and

to furnish support to countries so as to deal with the pandemic. Having said that, wide criticism

17 Human infection with pandemic (H1N1) 2009 virus: updated interim WHO guidance on global surveillance,

WORLD HEALTH ORGANIZATION (Apr. 29, 2009), https://www.who.int/csr/resources/publications/swineflu/interi

m_guidance/en/. 18 Zerubabel G. Tefera, Hibaa-Haibado Ismael & Sekou T. Otondi, Opinion – Multilateralism as Panacea for COVID-

19, E-INTERNATIONAL RELATIONS (Apr. 23, 2020), https://www.e-ir.info/2020/04/23/opinion-multilateralism-as-

panacea-for-covid-19/. 19 James Scott, Multilateralism, ENCYCLOPEDIA BRITANNICA (Oct. 13, 2015),

https://www.britannica.com/topic/multilateralism.

29

http://www.who.int/csr/resources/publications/swineflu/interi

http://www.who.int/csr/resources/publications/swineflu/interi

https://www.e-ir.info/2020/04/23/opinion-multilateralism-as-panacea-for-covid-19/

https://www.e-ir.info/2020/04/23/opinion-multilateralism-as-panacea-for-covid-19/

https://www.britannica.com/topic/multilateralism



has followed owing to the approach of WHO in responding to the outbreak of coronavirus. Such

being the case, multilateralism has a great significance, however it is to be noted that the present

multilateralism requires to be fixed. In order to fight the pandemic and to develop a feasible plan

to recover and come back stronger than before, international coordination, cooperation and the

aspect of solidarity is much needed which can be acquired with the help of multilateralism.

VI. Pandemic Health Issues

There is a possibility that Pandemics can lead to a sudden rise in morbidity and mortality on a

large-scale. It is to be noted that the globe has suffered multiple pandemics such as HIV, H1N1

Swine Flu, to name a few.20The coronavirus pandemic will probably have short term as well as

long term effects on physical and mental health even long after the coronavirus is gone. Owing to

the peculiar qualities of the coronavirus pandemic, the effect is probably going to be larger as

compared to the disasters before.21

Furthermore, Pandemics, apart from the direct health consequences, have proven to cause extreme

level of anguish and distress to the humanity leading to serious physical as well as mental health

issues. Research has shown that long term-health issues can arise from the brutal coronavirus and

the aftermath has the possibility to last for many years. Numerous patients who have recovered

from coronavirus have reported health issues such as breathlessness, body pain even several

months after being infected with the virus. Not only the respiratory system, are several parts of the

body known to be attacked by it. 22

VII. Future of Universal Healthcare

Universal Healthcare involves furnishing of quality medical service to all the citizens. It is a system

wherein the public is given access to quality medical service irrespective of the fact whether they

have the money to pay or not. It is no secret that the absolute cost of giving quality care can amount

to a huge expense for governments.23The World Health Organization has prioritized Universal

Healthcare.24 One of the two reasons for not achieving Universal Healthcare, apart from the

expense, could be the lack of political support and general agreement on the concept of social

solidarity.

Presently, every country’s system to access healthcare differs around the world. Numerous

countries lack centralized funding system and are obligated to pay for Healthcare whereas, some

countries such as Rwanda, Canada, United Kingdom etc. have access to Universal Healthcare in

20 NITA MADHAV, ET AL., DISEASE CONTROL PRIORITIES: IMPROVING HEALTH AND REDUCING POVERTY (3d. ed.). 21 PTI, Coronavirus pandemic may cause long-term health problems: Study, ECONOMIC TIMES (May 22, 2020, 07:24

AM), https://health.economictimes.indiatimes.com/news/industry/coronavirus-pandemic-may-cause-long-term-

health-problems-study/75880916. 22 Lisa Du, Virus Survivors Could Suffer Severe Health Effects for Years, Prognosis, BLOOMBERG (May 13, 2020,

02:30 AM), https://www.bloomberg.com/news/articles/2020-05-12/covid-19-s-health-effects-can-last-long-after-

virus-is-gone. 23 Kimberly Amadeo, Universal Health Care in Different Countries, Pros and Cons of Each, THE BALANCE (Mar. 13,

2020), https://www.thebalance.com/universal-health-care-4156211. 24 Universal health coverage, WORLD HEALTH ORGANIZATION,

https://www.who.int/healthsystems/universal_health_coverage/en/.

30

https://health.economictimes.indiatimes.com/news/industry/coronavirus-pandemic-may-cause-long-term-health-problems-study/75880916

https://health.economictimes.indiatimes.com/news/industry/coronavirus-pandemic-may-cause-long-term-health-problems-study/75880916

https://www.bloomberg.com/news/articles/2020-05-12/covid-19-s-health-effects-can-last-long-after-virus-is-gone

https://www.bloomberg.com/news/articles/2020-05-12/covid-19-s-health-effects-can-last-long-after-virus-is-gone

https://www.thebalance.com/universal-health-care-4156211

https://www.who.int/healthsystems/universal_health_coverage/en/



some form. However, there is a possibility of compromising on quality of care due to obvious

reasons such as less funding obtained by the Government. Various countries including France have

adopted a hybrid, multipayer, Healthcare system so as to avoid compromising on quality of care.

Nearly all the developed countries have made a commitment to Universal Healthcare except for

the United States. There is a lot of complexity involved in setting up a Universal Healthcare system

but it could be possible. Given the world-wide state of Universal Healthcare, there is a possibility

of a proper Universal Healthcare in different forms in the future but with sheer amount of

cooperation, consensus in the society, political support, government support, collective

commitment and above all with appropriate funding. Furthermore, the governments have to play

a massive role in committing to Universal healthcare.25

VIII. Scope of Protectionism

Protectionism is the government’s strategy to limit imports of other countries with an intention to

provide help to domestic industries. The restriction is not only for the purpose of benefitting the

domestic economy but it may even be the consequence of safety or quality issues. 26 The

disadvantages of international integration at large-scale has been highlighted by the coronavirus

crisis. Businesses have now become more aware of the risk of depending upon complicated world-

wide supply chains. In the wake of Covid-19, many governments have Imposed export restrictions,

travel bans and even incorporated additional visa requirements. As a result of the above mentioned,

the economies are being made more national and as to politics, more nationalistic. The impact of

this global crisis is expected to last for long.27

IX. Response of WHO28

It all started with the information of Pneumonia of unknown cause to the WHO (World Health

organization) China office on the last day of 2019. The detection of the virus took place in the city

of Wuhan, China. As per the authorities, some of the patients were found to be vendors or dealers

in the seafood market which eventually led to the shutdown of the same. Within few days, WHO

declared that it would operate over its three levels i.e. central office, regional office and HQ in

order to keep an eye on the matter and also provide information as it comes up. By that time,

investigations were in progress in order to find the cause of this sickness.

WHO published a report and afterwards, the virus was named as novel coronavirus. On 10th

January, 2020, the World Health Organization unveiled its first guidance on the same and a tool

was released for nations to monitor their capability to identify as well as deal with the virus.

Cases started to come up in other countries other than China. Thereafter, WHO paid a field visit

on 21st January, 2020 to China. An Emergency Committee was organized by the Director General

25 Dylan Scott, 9 things Americans need to learn from the rest of the world’s health care systems, VOX (Jan. 29, 2020,

08:30 AM), https://www.vox.com/health-care/2020/1/29/21075388/medicare-for-all-what-countries-have-universal-

health-care. 26 Jim Chappelow, Protectionism, INVESTOPEDIA (Aug. 22, 2019),

https://www.investopedia.com/terms/p/protectionism.asp. 27 Philippe Legrain, The Coronavirus Is Killing Globalization as We Know It, FOREIGN POLICY (Mar. 12, 2020, 01:31

PM), https://foreignpolicy.com/2020/03/12/coronavirus-killing-globalization-nationalism-protectionism-trump/. 28 WHO, China leaders discuss next steps in battle against coronavirus outbreak (May 25, 2020),

https://www.who.int/emergencies/diseases/novel-coronavirus-2019/events-as-they-happen.

31

https://www.vox.com/health-care/2020/1/29/21075388/medicare-for-all-what-countries-have-universal-health-care

https://www.vox.com/health-care/2020/1/29/21075388/medicare-for-all-what-countries-have-universal-health-care

https://www.investopedia.com/terms/p/protectionism.asp

https://foreignpolicy.com/2020/03/12/coronavirus-killing-globalization-nationalism-protectionism-trump/

http://www.who.int/emergencies/diseases/novel-coronavirus-2019/events-as-they-happen

http://www.who.int/emergencies/diseases/novel-coronavirus-2019/events-as-they-happen



of WHO with the intention of considering the coronavirus outbreak in China and reported cases in

some of the other countries. China leaders and WHO set up a meeting to talk about the outbreak

of coronavirus, containment of the disease in Wuhan along with the gravity and transmissibility of

the disease. Both the parties came to an agreement that international experts will be sent by WHO

to visit China at the earliest possible date with an objective to work with Chinese colleagues. The

aim of it was to further understand the outbreak in order to direct the global response endeavours.

On 30th January, 2020, the outbreak of the coronavirus was announced as a Public Health

Emergency that is of international concern by WHO and the same day, India reported its first case

of coronavirus in Kerala. To help provide protection to vulnerable countries from the coronavirus

outbreak, the Global community demanded US$675 million. After a couple days, the novel

coronavirus disease was officially named COVID-19.

On 12th February, 2020, the WHO-led Crisis Management Team (CMT) was activated by the UN.

At the Munich Conference, the Director- General of WHO called for solidarity and spoke against

stigma and hate. On 17th February, 2020, in the wake of outbreak of the extremely contagious

virus, guidance was released on mass gathering and handling sick travellers by WHO. Personal

protective equipment was sent by WHO to about 21 countries. Following the several days, WHO

issued a warning that the window of opportunity to stop the spread of the virus was narrowing. In

addition, it was pointed out that the international community needed to take action without delay.

Furthermore, appointment of six special envoys on coronavirus took place. On February 23rd, 2020

Europe encountered a serious outbreak owing to the increase in cases in Italy. Experts from WHO

and the European Centre for Disease Prevention and Control (ECDC) visited Italy.

Findings and recommendations of WHO- China Joint mission were shared. The mission involved

25 International and Chinese experts who visited multiple provinces. In addition, few of them went

to Wuhan which was the epicentre of the outbreak of the highly contagious virus. Guidance in

relation to COVID-19 for employers and businesses was issued. On 28th February, 2020, during

the daily (COVID-19) press briefing, it was stated by the Director General of WHO that over 20

vaccines are in progress around the world. Moreover, he said that numerous therapeutics were

under clinical testing. About US$15 million was released by UN to WHO and UNICEF on account

of COVID-19 response. Mission of WHO specialists showed up in Iran, together with medical

supplies, protective equipments as well as laboratory kits. Shipment of about half a million sets of

personal protective equipments by WHO to 47 nations. However, the global supply was quickly

depleting. On 5th March, WHO released a social media campaign known as Be Ready for COVID-

19 that persuades individuals to be safe, smart and kind. The very next day, R&D blueprint draft

was published by the World Health Organization wherein, the research priorities in 9 crucial areas

were outlined.

Interim guidance was issued on February 8th, 2020 regarding preparedness, readiness and response

actions for four separate transmission scenarios. With the intention to help individuals deal with

stigma, fear and discrimination while COVID-19, guidance was furnished by WHO. Another

guidance was issued for schools with IFRC and UNICEF.

Ultimately, on 11th March, 2020, the extremely-contagious virus named as COVID-19 was

characterized as a pandemic and on 13th March, 2020, a COVID-19 solidarity response fund with

32



an aim to raise money to provide support to the work of the World Health Organization was

launched by WHO, UN Foundation and partners. The very same day, #SafeHands challenge was

launched for the sake of encouraging the power of clean hands to combat COVID-19.

Looking at the rise in the number of cases in South-East Asia Region, WHO called for dire and

combative measures to tackle coronavirus. An international clinical trial was introduced by WHO

and partners, with an aim to produce information that is robust and from across the globe to look

for the most effectual treatments for coronavirus. It was termed as a solidarity trial. On 19th March,

2020, Secretary- General of UN, Antonio Guterres urged the global leaders to unite their efforts

and subsequently propose an immediate as well as coordinated world-wide response. On 20th

March, 2020, WHO launched a messaging service (WHO health alert) on WhatsApp wherein,

crucial details would be furnished to millions of individuals over their mobile phones.

The G20 leaders were asked by the Director General of WHO to fight, unite and ignite against

coronavirus while addressing the Extraordinary Summit on coronavirus. WHO also launched a

free of cost messaging and calling app and the subscribers will get up-to-date information and

news from WHO directly. In Iraq, WHO helped to increase the availability of laboratory supplies

for COVID-19. About 133 countries were furnished with vital supplies. Launching of new

equipments took place on 8th April, 2020, to provide assistance to hospitals in dealing with the rise

in coronavirus patients.

All the UN agencies were made to come together by the Secretary-General for the sake of making

a contribution to the Supply Chain Task Force and the emphasis was on drastic ramp-up of the

supply of life-saving equipments as well as equalling supply with needs. To accelerate the

development of a vaccine against coronavirus, an expert group was formed to work jointly and the

in charge of coordinating was WHO. All the African nations were provided with substantial relief

such as medical supplies.

On 19th April, a joint UN call was made by WHO to finance the global emergency logistics system.

WHO collaborated with WTO on settling disruption to world-wide supply chains. Global leaders

came together with an aim to make sure unbiased access to new tests, vaccines and treatments for

coronavirus. Parliamentarians were addressed by WHO on coronavirus pandemic. WHO’s new

partnership was declared with European Investment Bank (EBI) on 1st May, 2020. On 4th May,

2020 while responding to a journalist’s query, Principal Legal Officer of WHO stated that there

was no warning from Taiwan on 31st December, 2019. On that day, WHO received a mail from

them wherein, they were making the request to obtain more information on atypical pneumonia

cases, as stated by news sources.

Several guidelines were issued by WHO in relation to schools, workplace, contract tracing,

surveillance strategies for coronavirus human infection etc. Chiefly, with the aim to better the

health services for refugees, stateless and displaced individuals, a new agreement was signed by

WHO with the UN Refugee Agency. Numerous campaigns were initiated, missions were

conducted and supports to several countries were provided in multiple ways. Various guidance

was released, advices offered by WHO. Furthermore, plenty of efforts were made in order to avoid

misinformation and spread accurate information.

33



X. Allegations on WHO’s Response

In its entire history of the World Health Organization, its contribution towards the global battle is

to combat several infectious diseases. However, in the time of coronavirus, questions are being

raised on the response of the World Health Organization. About 58 nations including India, are

having their doubts regarding WHO’s coronavirus response. A draft resolution has been floated

wherein they are urging for assessment of the response of WHO over the pandemic caused by a

highly-contagious virus, named COVID-19. The draft resolution that is brought forth by the

European Union on world-wide coronavirus response is to be laid at the World Health Assembly

on 25th May, 2020. Furthermore, the draft also mentions about the evaluation of the timelines with

regard to the recommendations made by the WHO in relation to the improvement of the global

pandemic prevention, response capacity and preparedness.29

The WHO has been accused of delay in the declaration of global health emergency. Furthermore,

it has been said that the organisation was not in support of nations for enforcing travel restrictions

to China until February, 2020, as per Health Policy Watch. Donald Trump, President of the United

States, in his tweet on 7th April, clearly accused the global health body i.e. WHO to be “China-

centric”.30It isn’t only US throwing criticism at WHO and labelling the organization as “China-

centric” for its COVID-19 response.31 The WHO has been also called a “puppet” of the China by

the President of the United States and in addition, he has also commented upon the failure of the

organization to hold Beijing to account. Most importantly, the funding for the organization has

been suspended by the US and it is to be noted that the nation is the largest donor.32 A question

asked in the editorial published in ‘Wall Street Journal’ in April 2020 accused WHO regarding

information revealed by the organization stated that the risk of coronavirus becoming a pandemic

is minimized and explicitly covered up China’s failure to handle the problem. The information was

censored by the authorities regarding the sequencing of the coronavirus genome by the Chinese

laboratory at the end of December 2019.Moreover the organization waited till 30 January to

understand and declare the outbreak a concern of public health emergency at International level

and the battle was lost when the epidemic was not proclaimed as a pandemic till 11 March 2020.

In a research conducted by University of Southampton titled ‘Effect of non-pharmaceutical

interventions for containing the COVID-19 outbreak in China’, which was financially supported

by Horizon 2020 program, found that if the actions were forwarded to curtail and stop the outbreak

one, two or three weeks before the numbers would have been different and the study found that

the cases could have been 66%, 86% or 95% less and a great harm could have been prevented.

XI. Critical Analysis

29 IANS, India among 58 nations questioning WHO on COVID-19 response, NATIONAL HERALD (May 18, 2020,

07:59 AM), https://www.nationalheraldindia.com/india/india-among-58-nations-questioning-who-on-covid-19-

response. 30 Stephen Buranyi, The WHO v coronavirus: why it can't handle the pandemic, THE GUARDIAN (Apr. 10, 2020, 06:00

AM), https://www.theguardian.com/news/2020/apr/10/world-health-organization-who-v-coronavirus-why-it-cant-

handle-pandemic. 31 Supra note 29. 32 Coronavirus: World Health Organization members agree response probe, BBC (May 19, 2020),

https://www.bbc.com/news/world-52726017.

34

https://www.nationalheraldindia.com/india/india-among-58-nations-questioning-who-on-covid-19-response

https://www.nationalheraldindia.com/india/india-among-58-nations-questioning-who-on-covid-19-response

https://www.theguardian.com/news/2020/apr/10/world-health-organization-who-v-coronavirus-why-it-cant-handle-pandemic

https://www.theguardian.com/news/2020/apr/10/world-health-organization-who-v-coronavirus-why-it-cant-handle-pandemic

https://www.bbc.com/news/world-52726017



Global credibility of the World Health Organization is being seriously suspected. The WHO’s

response towards the coronavirus pandemic has specifically come on the radar of several countries

and its leadership, under unusual scrutiny for seemingly favouring China. On the one hand,

officials of China themselves acknowledged some of their errors and on the other, the global health

body were busy praising the effectiveness of the nation’s system as well as the COVID-19

response. The organization’s Director-General, Tedros Adhanom Ghebreyesus, showered praises

and commended China and its President upon his return from Beijing, capital of China.33 It

somehow developed a perception of security amongst the people and that probably led to the rapid

spread of the contagious virus. Moreover, it needs to be noted that the government of the China

concealed the outbreak of the brutal coronavirus for almost a month in the city of Wuhan, the

epicentre of the outbreak, leading to worldwide and an expeditious spread of the virus.

Even though they were aware of the human-to human transmission practically at an early stage

owing to the infection of medical staff, this information wasn’t conveyed to the public for weeks,

again contributing to the global spread of the virus.34 Despite the aforementioned facts, China was

praised of showing seriousness as well as being committed to transparency by the World Health

Organization,35clearly showing the aspect of mendacity in their applaud.

During the time of outbreak of an infectious disease, the primary apparatus that has been

introduced to regulate the role and the responsibilities of the World Health Organization is the

International Health Regulations, 2005. As per the regulation, the WHO is required to monitor,

evaluate the risk and set up a coordinated response but to some extent, the organization failed in

evaluating the risk appropriately. The aforementioned subject does call for a factual and genuine

inquiry as China is also being accused of deceiving the global health body. In the beginning, WHO

was being reluctant in announcing “public health emergency of international concern”. Most

importantly, the coronavirus pandemic was declared a pandemic on 11th March, 2020, despite

being aware of the fact that the brutal coronavirus had spread world-wide weeks before.

Therefore, it can be said that for some reason, there was failure on the part of the organization to

figure out the actual position on the ground. One could clearly argue that the WHO to some extent

mishandled the coronavirus situation and placing China and its response towards coronavirus in a

positive light weren’t the organization’s best decisions.

XII. Conclusion

It was defunded that the WHO have failed to address the concern in several aspect and a transparent

33 Emily Rauhala, Chinese officials note serious problems in coronavirus response. The World Health Organization

keeps praising them, THE WASHINGTON POST (Feb. 9, 2020, 06:23 AM),

https://www.washingtonpost.com/world/asia_pacific/chinese-officials-note-serious-problems-in-coronavirus-

response-the-world-health-organization-keeps-praising-them/2020/02/08/b663dd7c-4834-11ea-91ab-

ce439aa5c7c1_story.html 34 Frances Eve, China's reaction to the coronavirus outbreak violates human rights, THE GUARDIAN (Feb. 2, 2020,

12:32PM), https://www.theguardian.com/world/2020/feb/02/chinas-reaction-to-the-coronavirus-outbreak-violates-

human-rights. 35 WHO, China leaders discuss next steps in battle against coronavirus outbreak, (Jan. 28, 2020),

https://www.who.int/news-room/detail/28-01-2020-who-china-leaders-discuss-next-steps-in-battle-against-

coronavirus-outbreak.

35

https://www.washingtonpost.com/world/asia_pacific/chinese-officials-note-serious-problems-in-coronavirus-response-the-world-health-organization-keeps-praising-them/2020/02/08/b663dd7c-4834-11ea-91ab-ce439aa5c7c1_story.html



https://www.theguardian.com/world/2020/feb/02/chinas-reaction-to-the-coronavirus-outbreak-violates-human-rights

https://www.theguardian.com/world/2020/feb/02/chinas-reaction-to-the-coronavirus-outbreak-violates-human-rights

https://www.who.int/news-room/detail/28-01-2020-who-china-leaders-discuss-next-steps-in-battle-against-coronavirus-outbreak

https://www.who.int/news-room/detail/28-01-2020-who-china-leaders-discuss-next-steps-in-battle-against-coronavirus-outbreak



approach was not adopted to combat the virus. Many Asian and African countries are largely

dependent upon the organization for medical facilitation and supplies but it is true that at the time

of pandemic the WHO leadership has failed the world in several ways. The time has envisaged a

thought in several States to determine the Independence of such International organizations and

make is possible that from nowhere the whims of the state that is funding or having a influence in

choosing it leader may affect its indolence and impartiality because e if such traits are present that

defeats the very purpose of such organizations. A correct diagnosis of the health problem needs to

be conducted by WHO. But one failure of the organization cannot ruins the efforts and tasks

performed by the organization on various timelines the organization did its tasks fully and properly

a similar nature could have been adopted for COVID-19 and warning and reports be shared with

the world in time so that the states can establish an effective and efficient framework and set of

policies that can be deployed at the time of emergencies and the risk could be minimized the

organization should play a significant position across the planet and assist the states in the same.

An investigation and proposed plans must be developed for the shortcomings that have engulfed

the transparency, Independence and accountability of an international organization. The Who have

a great team of altruistic and committed workers who work tirelessly in providing health care

services in more than 194 countries and greatly and successfully lead fight against several diseases

including polio and Ebola. The present outcomes envisage a need to restructure the organization

and at all possible times be led by the health professionals who have the latitude to be independent

and means to resist and overcome any pressure and the organization must demonstrate strong spine

of International health system which is committed and unfailing so that the world can effectively

fight with such problems in future.

36



Changing Dimensions of Law & Justice:

A Socio-Legal Study of the Marginalized Population Group of J&K

Pankaj Jamtani1

Abstract

The parliamentary democratic structure of India signifies a system of rules where each and

every citizen of the country has equal rights and opportunities in social, political, economic

and other areas of life. In a democratic set up anywhere across the world, principles of equality

and justice get primordial importance. India is no exception to it as the Constitution of India,

in its preamble, expressly provides a guiding light to attain liberty, equality and fraternity as

principle of life. While talking about political rights and opportunities in India, there has

hardly been any debate or discussion over a marginalized population group of J&K that has

been categorized as a class called West Pak Refugees. Though they are very much the citizens

of India, they are referred to as refugees by authorities, both, at State as well as Central level.

West Pak Refugees are people who currently reside in some districts of the Jammu region,

namely, Samba, Kathua and Jammu city. Their population is around two lacs with the

majority of them belonging to other backward classes and scheduled caste communities.

Shockingly, these West Pak Refugees have never been given the most fundamental right, i.e.,

the right to vote in legislative elections, panchayat elections, municipal council elections and

other local elections. Against the spirit of democracy, these people have not been given the

right to represent their own people in local elections of the districts they live in. Also, on

account of non-conferment of Permanent Residence Status, three generations of the West Pak

Refugees have been continually denied basic and fundamental civil rights and the current

generation is still fighting and litigating in the Supreme Court of India to defend their rights.

This paper is an attempt to highlight the plight of a marginalized population group in light of

changing dimensions of law and justice particularly post 5th August, 2019 wherein the

erstwhile State of J&K has been bifurcated into U.T of J&K and U.T of Ladakh. Article 35A

has been repealed and the PRC condition has been replaced by newly issued domicile rights.

Further, other aspects relating to the lives of West Pak Refugees like legal status and

disabilities, economic status and opportunities, political initiatives, committees and

recommendations have also been touched upon.


I. Introduction

The Constitution of India protects the rights of all citizens of India. Thus, even if a single individual

is deprived of his fundamental rights or any such right he possesses as a human, a big question

mark arises upon the democracy of India. The Constituent Assembly members have drafted the

Constitution of India very consciously with a cherished goal of setting up a democratic republic

where institutions are informed about socio-economic and political justice. But this goal couldn’t

take shape in Jammu & Kashmir where thousands of citizens of India belonging to a particular

marginalized community (called West Pak Refugees) have been denied equal opportunities and

justice.

It would not be an exaggeration if one says that the problem which West Pakistan Refugees have

been through is one of its kind and has no parallel in the world because values of democracy and

fundamentals of the Constitution stop at the gate of the locality where these unfortunate people are

1 Pankaj Jamtani, Ph.D. Research Scholar, Guru Gobind Singh Indraprastha University, New Delhi.

37



forced to survive on a bare minimum. Generation after generation of West Pak Refugees has been

consumed in their fight for justice.

II. BACKGROUND:

West Pakistan Refugees are those persons who migrated to India in 1947 from western Pakistan

during the partition period and settled in different districts of Jammu region as, for them, this was

the nearest place where they could take a safe refuge. They settled in districts like Samba, Rajouri,

Jammu and Kathua of Jammu & Kashmir State (now a Union Territory) where their total

population is around three lacs, today.2 When the WPR came to Jammu & Kashmir, they were not

given or allotted any land by the J&K Government. Later, the land on which they had initially

settled upon (approx. 46,466 kanals)3 was allowed to be retained by WPR, with a condition that

the title of the land wouldn’t be conferred upon them, because of not having a permanent resident

certificate issued by the J&K Government.

In 1954, the erstwhile State government of J&K passed an executive order through its cabinet,

whereby land up to twelve-acres of un-irrigated or eight-acres of irrigated was allowed to be

retained by the West Pak Refugees. As a result, 46,466 kanals of State/Evacuee property land

stands retained by these refugees under Cabinet Order no. 578-C of 1954.

West Pak Refugees are a big section of the population of Jammu & Kashmir who are struggling

with the systematic anomalies in J&K for the past seven decades. Actually, this class of people is

reeling under miseries cause not by their own fault, but by administrative and bureaucratic hurdles,

constitutional conundrums and political apathy.

Nobody wishes to remain a refugee for a lifetime, but unfortunately, the erstwhile State

government of Jammu Kashmir had stamped the words, “West Pakistan Refugees,” on the fate of

these people by their refusal to assimilate West Pak Refugees into the mainstream.

In spite of being a citizen of India, these people have been deprived of their basic rights of living

and employment. They have been denied political participation in J&K. Such pitiful conditions

were created by the erstwhile J&K State which resulted in these people struggling till date for a

mere existence. Problems of these West Pak Refugees and their deplorable conditions are not

clearly visible to other people of India, as any discussion about Jammu Kashmir instantly brings a

picture of terrorism to one’s mind which ends up concealing the reality. Thus, to gain access so as

to identify this community and their problems which have continuing for three generations, a deep

insight into the socio-economic fabric of this community is required.

III. SOCIO-ECONOMIC CONDITIONS:

These West Pak Refugees primarily consist of Hindus and Sikhs. They, mostly, belong to

scheduled castes and backward classes with around 80% of West Pak Refugees belonging to

schedule caste4 and 10% to other backward classes. About 10% of them are from the general

2 Desai R., Slave People of a Free Country, 7 (2010). 3 Government Order No. Rev/Rehab/151 of 2007 (India). 4 R. Chowdhary, Border and People – An Interface 98 (Centre for Dialogue and Reconciliation, 2012).

38



category. Going through abject poverty, these people are still forced to live in mud houses and

temporary makeshift structures. Even basic amenities like drinking water and sewer-line system

are scarcely available. It is pertinent to note that these are the conditions after seventy years of

independence of India.

From a socio-economic point of view, this marginalized class, today, stands on the lowest rung of

society’s ladder. Youth in this community, by and large, belong to the labour class; they earn their

living by doing domestic labour work and other petty jobs such as a helper in automobile garages,

medical and departmental store.

Some among them engaged in farming, construction work of houses, road construction projects

and only a handful of them have a regular income source by virtue of being retired army soldiers

eligible for pension.

IV. ISSUES OF PRC

The biggest grievance of the West Pak Refugee community is the non-issuance of the permanent

resident certificate to them. The erstwhile State of Jammu Kashmir, by not granting permanent

residence status, deprived them of several rights and privileges5, like the right to acquire property

in J&K, right of their children to get admission in professional colleges, right to employment in

government services and many other aids offered by J&K Government.

The erstwhile State of Jammu Kashmir differentiated among the permanent residents of the State

(now U.T) and the non-permanent residents of J&K by issuing permanent resident certificates only

to permanent residents of the State.

V. CAUSE OF ALL PROBLEMS:

When West Pak Refugees entered into the erstwhile J&K State, there was no Article 370 in

existence.6 Later on, it was this article using which a new article, i.e., Article 35A was inserted

into the Indian Constitution in a surreptitious manner.7 This newly inserted article gave arbitrary

powers to erstwhile J&K State to define permanent residents of J&K. The State Constituent

Assembly inserted Section 6 in the Jammu & Kashmir Constitution. Here, the West Pak Refugees

were deceived because when they entered J&K, a provision under the 1927 notification enabled

non-state subjects to acquire State Subject, however, section 6 of the JK Constitution stripped them

of this right in 1957 because of its retrospective application.

To understand the existing problems of these West Pak Refugees, we need to look into the brief

legal history of the erstwhile J&K State.

5 Sant Kumar Sharma, Article 370: Deceit and Fraudulent Communication 100 (Makhanlal Chaturvedi National

University of Journalism and Communication, 2016). 6 INDIA CONST. draft art 306A. 7 “This article was never placed before the Parliament of India, nor was there any debate before its insertion in the

Constitution of India. It was directly added to the Constitution by the President of India in the year 1954 through an

executive fiat.”

39



In the year 1954, a Constitutional Order8 was issued by the President of India for the erstwhile

State of Jammu Kashmir, under clause (1) (d) of Article 370 of Constitution of India. The clause

(now amended) said that the President can apply the provisions of the Constitution of India in

relation to Jammu Kashmir with such exceptions and modifications as he may specify.9

Using this power, the President of India issued an Order and inserted a new article in the

Constitution of India as applicable to erstwhile State of Jammu Kashmir in the year 1954. This

article10 gave the Government of Jammu & Kashmir, allegedly, arbitrary powers to define the

Permanent Residents of the erstwhile J&K State. The Government of Jammu & Kashmir was given

powers to provide exclusive privileges to the Permanent Residents of the erstwhile State or impose

some restrictions relating to matter as given under:

Employment under the Government of Jammu Kashmir

Acquisition of immovable property

Settlement in the State

Right to scholarship and such other forms of aid as the State Government may provide.

Shockingly, this article provided that the J&K Government could make laws to provide privileges

to a defined class of residents of Jammu & Kashmir to the extent that it could violate fundamental

rights of the citizens of India and that law shall not be void only on the ground that such law was

incongruous with any rights guaranteed to the citizens of India under Part 3 of the Constitution of

India.

Article 35A provided that no State law whether it existed prior to 1954 or enacted later by the

legislature of the State of Jammu Kashmir,

“shall be void on the ground that it is inconsistent with or takes away or abridges

any rights conferred on the other citizens of India by any provision of this part.”

The term permanent resident was further explained by the Constitution of Jammu Kashmir in

Section 6-10 under part III. The definition of permanent residents in Section 6 was incorporated

by the Constituent Assembly of the erstwhile State of Jammu Kashmir, which drafted the

Constitution of J&K.11

So the question arises, whether this definition of Permanent Resident which came into effect after

the adoption of J&K’s Constitution in 1957 could be applied to the residents of Jammu & Kashmir,

retrospectively? As of 1957, thousands of West Pak Refugees were living in JK; they sought refuge

in the region in the wake of the Partition and were living in J&K for about 10 years. Is this arbitrary

exclusion of West Pak Refugee from the definition of Permanent Resident by the erstwhile State

of J&K justifiable?

VI. LEGAL STATUS AND DISABILITIES:

The Erstwhile J&K State, under the Constitution of Jammu Kashmir, was directed to secure the

8 The Constitution (Application to Jammu and Kashmir) Order, 1954, C.O 48 (Appendix-1). 9 INDIA CONST. art. 370. 10 Id., at art. 35A. 11 J & K CONST.

40



men and women in the State the right to work, i.e., guaranteed work, and to make payment for the

labour according to the amount of work undertaken, subject to minimum wages.12

Apart from this, the erstwhile J&K State was also mandated to ensure that children of teenage and

women were not spoiling their lives by engaging in jobs that affect their health adversely. But

unfortunately, the erstwhile State was not duty-bound to provide such work, care or safety to the

West Pak Refugees, as section 19 applied to Permanent Residents of the State only and West Pak

Refugees were not covered under it. There were several other benefits like social insurance,

medical aid, hospitals, etc., which the State was expected to provide its residents at the State’s own

expense, but the West Pak Refugees could never claim their stake for any of such aid offered by

State.

The right to free and compulsory education under Section 20 of the Jammu & Kashmir

Constitution mandates the state to secure free education up to the university standard. This was

also available only to Permanent Residents of the erstwhile J&K State, which excluded West Pak

Refugees.

(a) Employment

West Pak Refugees are facing the heat from both sides, as on the one hand, the erstwhile State was

not duty-bound to even endeavour to provide them with work or job opportunities; on the other

hand, the West Pak Refugees and their children could not apply for government jobs in J&K, as

these were exclusively reserved for permanent resident certificate holders. Jammu and Kashmir

State Civil service regulations prevent a non-permanent resident to apply for any civil service post

under the State Government13. In effect, a West Pak Refugee is eligible to become a secretary of

the Union of India by qualifying the U.P.S.C examinations, but are not allowed to even sit for J&K

Public Service Commission exams. Not surprisingly, a West Pak Refugee cannot even apply for

the post of a clerk in the State. Hence, effectively, an Indian citizen who can reach the level of a

top administrative service post in the Government of India is prevented from applying for a class

IV government service post in the State of Jammu Kashmir.

(b) Education

West Pak Refugees, until recently, were not allowed to get admission for professional and

technical courses in Jammu & Kashmir. Many courses like M.B.A, MBBS, B-Tech (Engineering)

or Polytechnology required the candidate to have a Permanent Resident Certificate before applying

for it. In this regard, rules have been framed by Government of India under Section 16 of Jammu

& Kashmir Board of Professional Entrance Examination Act, 2002, where under exists the BOPEE

(Board of Professional Entrance Examination) which, under the Jammu Kashmir Board of

Professional Entrance Examination Rules14, makes it mandatory to produce the Permanent

Resident Certificate while applying for such professional courses. Thus, wards of West Pak

Refugees have always been prevented from getting admission into such professional and technical

courses which were offered by erstwhile State Colleges and institutions.

12 J & K CONST. s. 19. 13 The Jammu & Kashmir Civil Services Rules, Rule 17(a). 14 Jammu Kashmir Board of Professional Entrance Examination Rules, No. 4.

41



(c) Ownership of Property

The Government of Jammu & Kashmir under Jammu & Kashmir Alienation of Land Act, 1995

has barred the purchase of property in the State by any person who is not conferred with Permanent

Residence Status. Thus, under the statute, only a Permanent Resident of the State was entitled to

purchase immovable property. Thus, West Pakistan Refugees were prohibited from owning any

property in the State where they were born and brought up for seven decades. Also, a Bar was

imposed on the sale or allotment of apartments to West Pak Refugees under Section 4 of Jammu

& Kashmir Apartment Ownership Act, 1989. Such sale or allotment was allowed only to those

persons who happened to be permanent residents of J&K.

(d) Scholarships

The wards of West Pak Refugees who excel in their studies never received treatment equal to other

students of Jammu Kashmir. The erstwhile J&K State offered scholarships (apart from benefits

and incentives bestowed upon girl children) to students who attained a certain level of merit in

their academics and belonged to the lower economic strata of the society. However, children of

West Pak Refugees couldn't get the advantage of such scholarships offered by J&K government

as these benefits were reserved for permanent residents only.

All over India, the focus was on Skill India Programs and therefore, along the same lines, the

UDAAN Scheme sponsored by Central Government was established in the U.T of J&K. This

scheme seeks to enhance the skill of the youth and improve employability level so as to meet the

demands of the industry. But unfortunately, this scheme also requires a permanent resident

certificate to be eligible to apply under this scheme, thereby, excluding the West Pak Refugees

from its ambit.

(e) Prohibition for Trade & Business

To obtain a license under the Drugs and Cosmetics Act, 1940, for the purpose of opening a Chemist

or Pharmacy Store in Jammu & Kashmir, a permanent resident certificate was necessary to apply

for a license (after 5th August 2019, PRC is no longer mandatory).

Those who wish to work for the J&K Government under a contract could not do so until and unless

he or she carried a valid permanent resident certificate so as to get a contract for public works from

the Government. Furthermore, it was necessary for the applicant to be registered as a contractor

under the Jammu & Kashmir Registration of Contractors Act, 1956, as under Section 3 of the Act,

it was mandatory for the contractor to be registered with the concerned authority. The rules which

were framed under the Statute made it compulsory for the applicant for registration to be a

permanent resident of J&K.

(f) Professional Services:

Not only were the doors to trading and business opportunities closed for West Pak Refugees, but

they also could not dream of becoming a professional and render services thereafter for public

interest. Many a time, these people were not in a position to hire highly paid legal professionals to

espouse their cause before the judiciary and get some relief. So, these West Pak Refugees could

42



not even dream of seeing their children as Advocates and Doctors since doors to their prosperity

had been closed from every side. For example, even to enrol in the Jammu & Kashmir State Bar

Council for practising as a lawyer, one was required to submit Permanent Resident Certificate

details while filling up the form for registration. Thus, to become a Professional in J&K, one was

required to be a permanent resident of that region.

VII. Political Initiatives

After running from pillar to post, these West Pak Refugees reached the doors of Mr Lal Krishna

Advani (the then Home Minister of India) and gave him a brief insight of their plight to illustrate

their state of helplessness and other grievances.15

Acting upon their complaint in the year 2001, Mr Advani wrote to Dr Farooq Abdullah, the then

Chief Minister of erstwhile Jammu & Kashmir State, on the issues of West Pak Refugees and the

problems they suffered from. He explicitly requested the C.M. of erstwhile Jammu & Kashmir

State to grant permanent resident certificates to the West Pak Refugees by making the required

amendments in the J&K Constitution. He also reminded Dr Abdullah of a previous letter that Mr

Advani had himself sent to him four years back on the same issue, in which he had stated that the

West Pak Refugees settled in Jammu & Kashmir are very much the citizens of India as recognized

by the Indian Constitution and they have genuine grievances and hardships in matters of education

and employment, which should be resolved at the earliest. He said,

“A sense of total helplessness seems to have gripped this community and they’re unable to see a

future for their present and coming generations. I would, therefore, request you to consider the

problems of West Pakistani Refugees in the State of J&K, sympathetically, and take necessary

steps to grant State Subject Status to them to end their disenfranchisement as well as their disability

as regards entry into institutions of higher education and State Government services”.16

In the year 2005, again, the then Home Minister of India, Mr Shivraj Patil, asked the erstwhile

State Government of Jammu & Kashmir to give sympathetic consideration to the request of West

Pak Refugees without any further delay. He stated that these people of Jammu Kashmir are

suffering for the last 56 years. He also requested the erstwhile J&K State to consider the making

of a law under section 8 of Jammu & Kashmir Constitution, so that permanent residence status

could be granted to them.17

A large number of letters were exchanged between the Central and the J&K government through

which one thing emerged that, apparently, the Union of India, through its representatives, had

clearly expressed its views to the erstwhile J&K State that the Jammu & Kashmir Government

should amend its Constitution so as to include West Pakistan Refugees in the definition of

permanent resident under section 6 of J&K Constitution. It was the lack of permanent residence

status to these people which was the root cause of all disabilities. However, the J&K Government

has not shown any inclination towards declaring these displaced persons as State Subjects.

This marginalized class is a victim of a lack of political will and an indifferent attitude of the J&K

Government. For decades, these people have only been getting lip service from the J&K

authorities. Each time a West Pak Refugee approaches the authorities, the only answer they receive

in return is that “we are looking into your matter”, “Your matter is under consideration” or, “We

are trying to find a solution”. Through four generations of this community, there have been,

15 Letter from Mr L.K Advani to Dr Farooq Abdullah, Ref. no. D.O No. 15030/18/2001 – K.H (1). 16 Id. 17 Letter from Mr. Shivraj Patil to Mufti Mohammed Sayeed (Jan. 8, 2005).

43



typically, three to four responses that have permanently stuck to their fate.

A sense of kinship needs to be instilled in the West Pak Refugees by granting them permanent

resident certificate (now replaced by domicile certificate) to ensure that their belief on fundamental

rights and rule of law remain intact.

VIII. Supreme Court Observations:

The Honourable Supreme Court in Bachan Lal Kalgotra’s case observed that the West Pak

Refugees are not permanent residents of Jammu & Kashmir as defined in section 6 of the

Constitution of erstwhile Jammu & Kashmir State and, therefore, cannot register in the electoral

roll of J&K under section 12(b) of Jammu & Kashmir Representation of People Act. They are not

qualified to become a member of a village panchayat as provided under section 8(a) of Village

Panchayat Act. No land can be transferred in favour of these West Pak Refugees because of section

4 of the Land Alienation Act, 1995. Rule 17(a) of Jammu & Kashmir Civil Services, Classification

of Control and Appeal Rules prohibits them from applying for any service under the J&K

Government by direct recruitment process.

“In the circumstances, in view of the peculiar constitutional position prevailing in the State of

Jammu & Kashmir, we do not see what possible relief we can give to the petitioner and those

situated like him.”18

The Apex Court further said in its judgment that, though these West Pak Refugees are very much

the citizens of India and are entitled to enjoy the various fundamental right provided in Part III of

the Indian Constitution, they are not entitled to the many of rights available in Jammu & Kashmir,

where they’ve been living for nearly forty years.

IX. Committees And Suggestions

(a) Wadhwa Committee19

For a long time, the West Pak Refugees in Jammu & Kashmir have been knocking on doors of the

J&K government machinery by approaching political representatives and executive officers of the

erstwhile J&K State for the redressal of their grievances and issues. After 57 years, a committee

was formed under the chairmanship of Shri G.D Wadhwa (IAS, Financial Commissioner

(Revenue)) in 2007 for the displaced persons of 1947, 1965 and 1971 as well as West Pak

Refugees. The purpose of setting up this committee was to, firstly, prepare a separate list for the

displaced persons of 1947, 1965, 1971 and the West Pak Refugees; secondly, for the identification

of grievances of displaced persons; thirdly, to know the steps and measures taken by the J&K

government to solve the problems of displaced persons and; fourthly, to provide suggestions for

redressal of long pending problems of displaced persons.

Following are some issues on which committee gave its suggestions and recommendations:

Citizenship Rights: The committee said that West Pak Refugees are very much the citizens

of India, but their demand for Permanent Resident Certificate requires amendment of the

State Constitution. Thus, it is for the State Government to take a decision.

Specific Funds for Basic Civic Amenities: It was observed by the committee that this

18 Bachan Lal Kalgotra v. State Of Jammu & Kashmir, 1987 AIR 1169 (India). 19 Wadhwa, supra.

44



demand is genuine and deserves sympathetic consideration.

Reserved Category Benefits: The committee observed that most of the West Pak Refugees

belong to the scheduled caste category, thus, the State Government may issue a separate

circular for granting reserved category certificates.

Special Package & Application of Centrally Sponsored Scheme: The committee said that

this is a justified demand and the State Government may consider it.

Custodian Land and Prohibition on House Repairing: The committee observed that the

Evacuee Property department should consider and allow West Pak Refugees to repair their

houses as per the rules of the department.

Extending Benefits of IAY/BPL: The committee said that the matter would be taken up by

the division.

Issuance of Domicile Certificate: Deputy Commissioners will be directed to issue the

certificates after fulfilling procedural formalities.

Special Package on analogy of POJK Displaced: The committee recommended that PRO

(Jammu) shall formulate a package for West Pak Refugees and take the matter up with the

Central Government through the administrative department.

(b) Parliament Standing Committee20:

In the year 2014, seven years had passed after the Wadhwa Committee had submitted its report to

the Government of Jammu Kashmir. However, the J&K Government didn’t implement the

recommendations efficaciously. The Wadhwa Committee observed that demands of West Pak

Refugees are genuine, justified and need sympathetic consideration. On being asked by the Central

Government through Ministry of Home affairs about the steps taken to implement the Wadhwa

Committee report, the representative of the J&K government had a clear reply on the non-

implementation of the report: “This is an issue within the domain of the State Legislature”.

The Department-Related Parliament Standing Committee on Home Affairs presented a report on

the displaced persons of 1947, 1965, 1971 and the West Pak Refugees to the Rajya Sabha on 22nd

December 2014. In its report, the committee took a considered view and recommended a list of

measures that are to be taken by the J&K government as well as the Central Government.

Following are some of the suggestions of the committee:

Grant Permanent Residence Status to West Pak Refugees so that they can live in the State in a

dignified manner.

Without further delay, State government should honour the verdict of the Apex Court of India

and issue the requisite executive orders, so that West Pak Refugees can become eligible to take

admissions in professional colleges under State. Process of issuing of Caste certificates are

also to be expedited.

Reservation must be granted in higher educational institutions for wards of West Pak Refugees.

Relaxation in minimum eligibility criteria may also be considered.

Central Government should explore the mechanism to open schools for children of West Pak

Refugees.

Early finalization of a one-time financial package of Rs. 30 Lacs, without any delay.

20 Government of India, Report No. 183, Problems being faced by Refugees and Displaced Persons in J&K

Department- Related Parliamentary Standing Committee on Home Affairs (Rajya Sabha, 2014).

45



Create separate battalions for State police and paramilitary forces from the youths of West Pak

Refugees.

If required, amend the State Constitution for reservation of seats in Legislative Assembly and

Legislative Council.

X. Latest Developments:

Acknowledging the dismal state of affairs of this marginalized community of West Pak Refugees,

Ministry of Home Affairs, (Department of Jammu, Kashmir and Ladakh Affairs) has recently

issued an order, i.e., The Jammu and Kashmir Reorganization (Adaptation of State Laws) Order,

2020, wherein an exclusive clause21 for the issuance of “Domicile” has been provided. As per

Order 202022, category of persons explicated in Jammu and Kashmir Civil Services

(Decentralization and Recruitment) Act, 2010, are eligible today to claim domicile of UT of J&K.23

West Pak Refugees being inhabitants of J&K since 1947 are, thus, eligible to claim domicile of

UT of J&K through which they will be able to apply for certain government jobs and other services

which denied to them for seventy long years. Hopefully, this move of the Central Government will

bring some prosperity in the lives of this marginalized population group of Jammu & Kashmir.

XI. Conclusion:

A group of people who were forced to leave their homes during the partition of 1947 from the west

Punjab region took refuge in Jammu and settled therein while their counterparts settled in the rest

of India. This group of people, later, came to be known as West Pak Refugees and the erstwhile

State of J&K never gave them the rights due to them, rather this group was discriminated and

denied the PRC status and domicile rights by successive governments of J&K by using the shield

of Article 35A. These WPR were denied political representation in J&K, right to education,

permanent settlement in J&K and many other basic rights. Generations after generation of this

community struggled hard to earn a livelihood in the absence of education and any government

support for seven decades. The central government led some initiatives to ameliorate their situation

after the apex court’s order but no solution was finalized due to the erstwhile J&K State

government’s apathetic attitude towards this weaker group.

On 5th August 2019, the President of India issued a Constitutional Order which repealed all the

previous Constitutional Orders applicable to J&K and thereby, repealed Article 35A of the

constitution. With this, the marginalized section of West Pak Refugees heaved a huge sigh of relief

as the community had lived in mud houses for seventy years and continuously struggled against

the discriminatory legal regime of J&K.

The sufferings of West Pak Refugee community seem to have come to an end with the changed

regime of law in U.T of J&K post the amendment of article 370 in the year 2019. Now, a new

domicile policy is in place which enables the people belonging to the WPR community to apply

for domicile in J&K by virtue of being settled there since the 1950s. The WPR can acquire property

rights in U.T of J&K and are also eligible to apply for jobs or any aid offered by the Government

21The Jammu and Kashmir Civil Services (Decentralization and Recruitment) Act, 2010, s. 3A. 22 MHA Order S.O 1229 (E) (Mar. 31, 2020). 23 Notification S.O No. 166, GAD, Govt. of J & K (May 18, 2020).

46



of J&K. With this, it can be said that WPR, being a marginalized population group of J&K are still

far from the actual justice due to them but a step has been taken by government authorities in the

right direction to bring this weaker section into the mainstream.

47



‘Corporate Governance’ Vis-À-Vis ‘Oppression and Mismanagement’: A

Case Study of Mr. Ratan Tata and Mr. Cyrus Mistry Dispute

Keshav Kaushik1

Abstract

‘Corporate Governance’, from just being a concept in books, has today become a revered

practice among corporates around the world. For a company to flourish and at the same time

maintain ethical business standards, ‘governance’ is a vital link but ‘oppression and

mismanagement’ is a factor that unsettles it. This notion of ‘governance’ has witnessed

significant developments recently and the biggest reason has been the court dispute between

Mr. Ratan Tata and Mr. Cyrus Mistry. The Tata Group, which only had seven chairmen in

its 150 year of existence, abruptly removed Mr. Mistry from its chairmanship in 2016 and it

was not a happy farewell at all. This unusual step taken by the Tata Board of Directors

ultimately culminated into one the most infamous and talked about legal battles of the

corporate world. This article has been an attempt to understand as to how the relations

between two of the biggest corporate houses, with almost five decades of relationship,

deteriorated. How the words, ‘Charisma vs. Competency’, fares in this on-going legal battle.

And why, the legal battle which Mr. Cyrus ensued, was not to get back the chair but to prove

the point that the minority shareholders interest is co-extensive with majority shareholders.

Moreover, the former’s interest cannot be marred by latter as and when they are not in

agreement with each other.


I. INTRODUCTION

“Power and Wealth are not two of my main stakes.”

This statement is by a personality who doesn’t need any introduction. He is one of the most

successful businessman India has ever produced; none other than Mr. Ratan Tata (hereinafter

referred as ‘Mr. Tata’). However, this statement seems to be quite ironical in the current scenario

when the Tata’s find themselves in one of the biggest corporate court room battle. Being the

Former Chairman and erstwhile majority shareholder of Tata Group’s holding company, ‘Tata

Sons’, Mr. Tata held the reign of the Company for about 21 years and at last handed down his

legacy to Mr. Cyrus Mistry (hereinafter referred as ‘Mr. Mistry’) who has been the managing

director of Shapoorji Pallonji & Company which is part of the Shapoorji Pallonji Group

(hereinafter referred as ‘SP Group’). The Tata group in itself is a honey comb maze and in this

context very unique. It comprises of Trust, Family and Group Companies of Tata’s on one hand

and SP Group on the other. Both have conducted the affairs of the Company with mutual trust and

assurance for more than five decades.2 This SP Group holds around 18.37% share in Tata Sons

which waters down to an investment of around ₹1,00,000Crores.

In the year 2013, Mr. Tata bid adieu to the chairmanship of Tata Group with a belief that his

successor, Mr. Mistry will take the company to new heights and this belief was rightly placed as

he was handpicked by Mr. Tata himself. Mr. Mistry was privileged enough because not many

1 Keshav Kaushik, Himachal Pradesh National Law University. 2 Cyrus Investment Pvt. Ltd. v. Tata Sons Ltd. & Ors., Company Appeal (AT) No. 254 (2018).

48



people have received such recognition. He was the man who was accredited by the Economist as

the most important industrialist in both India & Britain3 but astoundingly found himself being

ousted from the prestigious Tata group in a span of 4 years and it was not a happy farewell after

all. This abrupt expulsion culminated into an all-out war between these two major Indian Corporate

houses and this war struck at the very core of the corporate governance principles.

‘Governance’, a relatively familiar term in the corporate world, stipulates parameters of

accountability, control and reporting function of the Board of Directors (BOD) of corporate

entities. It also calls for establishing a proper and viable relationship among the various

stakeholders of different companies. On the other hand, to manage a company in such a manner

that the different stakeholders and their interest is protected, ‘Corporate Governance’ provides the

institutional setup. Total transparency, accountability and integrity in management, which also

include non-executive directors and their role in the corporate structure, are the most important

attributes of corporate governance. 4 Successful business enterprises and sound corporate

governance practices followed by them are evidence of the fact that there is a high correlation

between business prosperity and corporate governance. 5 In the recent decades, corporate

governance has become a very important tool for the protection of shareholders and also to

maximize long term values of their investment.6

Through the course of this article, the author, with this background, will try to find an answer to

an impeding question i.e. whether the unfolding of the corporate struggle between Mr. Tata and

Mr. Mistry struck at the very core of corporate governance principle and whether this dispute is a

classic example of ‘Oppression and Mismanagement’?

II. Clash of Tycoons: The Battle between Mr. Ratan Tata And Mr. Cyrus Mistry.

‘Kingship knows no kinship.’ The infamous 1stTurkish Sultan of Delhi, Alauddin Khilji, used this

phrase for the first time and the interpretation of the same is important to understand as to why

these two leading business houses of India i.e. Tata camp & Mistry camp are locked up in a long

drawn legal battle.7When we refer to the word ‘kinship’ it basically denotes a sense of relationship

and also a similar orientation in understanding. Therefore, the use of these words by Khilji points

towards the fact that the ruler should be fair, should have a sense of belonging, should be just,

dispassionate and should treat all his subjects equally.8However, both the protagonists of this

dramatis personae i.e. Mr. Tata and Mr. Mistry have made different inferences of the words spoken

by a ruler who lived in 13thCentury to justify their own interests and actions in the corporate legal

dispute taking place at the Tata Group(which has a market capitalisation of around ₹6,00,000 lac

crores).9

3 The Odd Couple, THE ECONOMIST (Oct. 3, 2013, 11:00AM), https://www.Economist.Com/Britain/2013/10/03/The-

Odd-Couple. 4 Chapter 1- Overview of Corporate Governance, SHODHGANGA (May 3, 2020, 10:04AM),

https://docplayer.Net/104009211-Chapter-1-Overview-Of-Corporate-Governance.html. 5 Ibid. 6 S. K. BHATIA, BUSINESS ETHICS AND CORPORATE GOVERNANCE (1t ed. 2007). 7 Aveek Datta, Tata v. Mistry: The Inside Story, FORBES INDIA (Nov. 7, 2016, 01:00PM),

http://www.forbesindia.Com/Article/Battle-At-Bombay-House/Tata-Vs-Mistry-The-Inside-Story/44721/1. 8 Ibid. 9 Ibid.

49

https://www.economist.com/Britain/2013/10/03/The-Odd-Couple

https://www.economist.com/Britain/2013/10/03/The-Odd-Couple

https://docplayer.net/104009211-Chapter-1-overview-of-corporate-governance.html

http://www.forbesindia.com/article/battle-at-bombay-house/tata-vs-mistry-the-inside-story/44721/1



With the removal of Mr. Mistry from his post which can rightly be termed as ‘coup’ and the

reinstatement of former chairman Mr. Tata, it all seemed quite obvious that Mr. Mistry, along with

his faithful, will protect their interest and thus, a prolonged legal battle seemed quite inevitable.

Not to the surprise of many, the swords were finally drawn and Mr. Mistry approached the National

Company Law Tribunal (NCLT) and contested against the decision of the board which resulted in

his ouster. This battle has been a see-saw affair as both the sides have tasted success and defeat,

and it is not yet over as it has reached to its final destination, the Honourable Supreme Court.

The burning question that has taken everyone by surprise is the fact that ‘Tata’ which is considered

not only one of the most successful brands ever, but also a name which boasts of keeping ethical

standards of business practices on a very high pedestrian, has found itself on the receiving end of

all such allegations. The report on corporate governance published by Tata Motors is a suitable

model to exemplify upon the governance standards which the company has set for itself. It states,

“As a Tata Company, the Company's philosophy on Corporate Governance is founded upon a rich

legacy of fair, ethical and transparent governance practices, many of which were in place even

before they were mandated by adopting the highest standards of professionalism, honesty, integrity

and ethical behaviour.”10

Surprisingly, these ethical standards were also being practiced when it came to the relationship

between the two groups as well. This was evident from the fact that even though the Articles of

Association never reflected in a formal manner the relationship that these two business houses

shared with each other but such a long-term relationship spanning for more than five decades had

resulted in a legitimate expectation to treat each other in an honest, unbiased and fair manner which

was based on the collective faith and assurance.11

However, this relationship of trust received a big jolt when Mr. Mistry was abruptly removed as

chairman by Board of Directors. These turns of events took everyone by surprise, including those

who were following the Tata’s closely. At the time of removal, the group did not cite any official

reason for this step but later on, in the letter sent to the stakeholders before EGM, the Tata group

tried to elaborate upon such sudden axing of Mr. Mistry from the post of Chairman.

The letter did not just give the reasons for the ouster but also made some serious allegations against

Mr. Mistry. It went on to say that the selection committee was misled by Mr. Mistry in 2011 as he

made various promises and came up with new management structure which was not brought into

action. The letter alleged that on being asked by Mr. Mistry to disconnect himself from his family

enterprises, the same was agreed but later he retracted from this position, thus, hitting at the very

core of governance. The group alleged that even when it faced downfall during Mr. Mistry’s

tenure, he showed no concern and instead, increased the dependence on Tata Consultancy Services

(TCS). The group labelled Mr. Mistry to be authoritative and one who took central control of all

major Tata operating companies, thus, diluting the Tata Sons representation, which was against

the past practices. After removal, Mr. Mistry was asked to step down from other posts too;

however, he retorted to media leaks which further damaged company’s reputation. A repeated

10 Tata Motors, 71st Annual Report on Corporate Governance, TATA MOTORS (Mar. 14, 2020, 10:04AM),

http://www.Tatamotors.Com/Investors/Financials/71-Ar-html/Report-Corp-Gov.html. 11 Supra note 2.

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http://www.tatamotors.com/Investors/Financials/71-Ar-html/Report-Corp-Gov.html



allegation was also made that for every failure of the group, Mr. Mistry blamed everything on the

past, terming it to be legacy issues. Therefore, basing their arguments on the above stated facts,

the Tata Group made the abrupt removal of Mr. Mistry as he failed to live up to the ‘True Sense

of Tata Philosophy’.12

However, after the removal, Mr. Mistry in his epistle written to Tata Sons showed the ‘hidden side

of the moon’ and rightly stated that all such allegations cannot be blindly trusted. Mr. Mistry said

that his shocking removal was a business of invalidity and illegality. He alleged that changes in

decision making process created ‘alternate power centres’ in Tata Group. He further resisted that

his position as chairman was nothing short of a ‘lame duck’.13 These power centres’ were rightly

pointed out by the NCLAT by analysing the interplay between various Articles of Association.

Mr. Mistry stated that at the time of his appointment he was promised a free hand but later on the

rules of engagement between the Tata family Trusts and the Board of Tata Sons were changed by

modifying the Articles of Association. He raised corporate governance issues that the family trust’s

representatives were acting as ‘mere postmen’ and left meetings of the board in between to receive

instructions by Mr. Tata. Here it is important to note that two-third shares of Tata Sons are being

held by the family trust.14

It was further alleged by Mr. Mistry that the group was pushed to venture into the aviation sector

by Mr. Tata and in lieu of the same, Mr. Mistry had to partner with Singapore Airlines and Air

Asia as well. Moreover, it was stated that the group had to make higher infusion of capital than

what was earlier committed to these airlines. He also flagged the issue relating fraudulent

transactions amounting to 22 Crores which involved parties from Singapore and India, which were

non-existent.15These are some of the instances which were handpicked to throw some light upon

the fact as to how deep the problem had penetrated between two groups, that shared a bond of

mutual trust and confidence for more than four decades. The biggest reason as to why this bond

eroded was the lack of governance, or rather, ethical governance.

III. CORPORATE GOVERNANCE

‘Corporate Governance’ is the current buzzword in India as well as all over the world.16 The

expression, corporate governance, started appearing in Law Journals of America during 1970’s.

Later during 1980’s the same expression was imported into U.K.17This term gained momentum

when a lot of scandals (Maxwell, Polly Peck, Barings), which hit the City of London and the UK

12 BS Web Team, Full Text: Why Tata Sons Lost Confidence In Cyrus Mistry, BUSINESS STANDARD (Mar. 10, 2020,

02:00PM), https://www.Business-Standard.Com/Article/Companies/Full-Text-Why-Tata-Sons-Lost-Confidence-In-

Cyrus-Mistry-116121200056_1.html. 13 Dev Chatterjee & Raghavendra Kamath, I Was Made A Lame Duck Chairman: Cyrus Mistry, BUSINESS STANDARD

(Mar. 14, 2020, 11:00AM), https://www.BusinessStandard.Com/Article/Companies/I-Was-Made-A-Lame-Duck-

Chairman-Cyrus-Mistry 116102700005_1.html. 14 Cyrus Mistry's Letter Bomb: The Original Letter He Sent to Tata Sons Board, THE ECONOMIC TIMES (Jan. 31, 2016,

10:00AM), https://Economictimes.Indiatimes.Com/News/Company/Corporate-Trends/Cyrus-Mistrys-Letter-Bomb-

The-Original-Letter-He-Sent-To-Tata-SonsBoard/Articleshow/55072360.cms. 15 Reuters, Tata Group Could See $18 Billion In Writedowns, THE TIMES OF INDIA BUSINESS (Jan. 31, 2020,

02:00PM), https://Timesofindia.Indiatimes.Com/Business/India-Business/Cyrus-Mistry-Says-Tata-Group-Could-

See-18-Billion-InWritedowns/Articleshow/55070624.cms.

16 DR. K.R. CHANDRATRE, CORPORATE GOVERNANCE- A PRACTICAL HANDBOOK (1t ed. 2010).

17 RICHARD SMERDON, A PRACTICAL GUIDE TO CORPORATE GOVERNANCE (4h ed. 2010).

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http://zeenews.india.com/business/news/companies/cyrus-mistry-fires-post-exit-salvo-at-tata-sons-board-says-he-was-pushed-into-becoming-a-lame-duck-chairman_1943840.html

https://www.business-standard.com/article/companies/full-text-why-tata-sons-lost-confidence-in-cyrus-mistry-116121200056_1.html

https://www.business-standard.com/article/companies/full-text-why-tata-sons-lost-confidence-in-cyrus-mistry-116121200056_1.html

http://www.businessstandard.com/Article/Companies/I-Was-Made-A-Lame-Duck-

http://www.businessstandard.com/Article/Companies/I-Was-Made-A-Lame-Duck-

https://timesofindia.indiatimes.com/business/india-business/Cyrus-Mistry-says-Tata-Group-could-see-18-billion-in-writedowns/articleshow/55070624.cms

https://timesofindia.indiatimes.com/business/india-business/Cyrus-Mistry-says-Tata-Group-could-see-18-billion-in-writedowns/articleshow/55070624.cms



financial market during the late 1980’s. This led to the birth of the Cadbury Committee on the

Corporate Governance in 1981 setup by Financial Reporting Council of the London Stock

Exchange and the Accounting Profession.

Various thinkers, experts and committees from both India and around have tried defining corporate

governance and some important definitions are as follows: Cadbury committee (UK), 1992 has

defined corporate governance as:

‘Corporate Governance is the system by which companies are directed and

controlled. It encompasses the entire mechanics of the functioning of a company

and attempts to put in place a system of checks and balances between the

Shareholders, Directors, Employees, Auditor and the Management.’18

Late Shri Atal Bihari Vajpayee, our former Prime Minister expressed his views on corporate

governance as:

‘International business experiences over the few years have clearly brought

corporate governance in the limelight. However, the issue still couldn’t get an

appropriate and conclusive answer. Numerous debates, discussion, discourses and

documentation, have broadly projected corporate governance as multifaceted as

well as multidisciplinary phenomena. And it involves BOD, shareholders,

stakeholders, customers, employees and society at large. To build up, an

environment of trust and confidence among all the components, though having

competing as well as conflicting interest is a celebrated manifesto of corporate

governance. On a tree, one may visualize fruits of more than one variety and he

finds himself in wonderland.’19

The contribution that corporate governance made to businesses both in terms of their

accountability and prosperity shows its importance in the present-day context.20 While ensuring

fairness in dealings among all the stakeholders of a company and the society at large, corporate

governance plays a major role in shareholders’ value maximisation in the corporation.

Transparency, a factor on which corporate governance hinges as it helps in raising the level of

confidence and trust between the management and other stakeholders as to how a company is being

run. The owners and managers of a company act as every shareholders’ trustees and it is their

responsibility to protect the investment.21

For a business to prosper a lot of hard work and sweat is invested, it is not something which can

be commanded. Prosperity is a unique blend of different stakeholders; leadership of top brass,

teamwork of management, enterprise and experience of people working in the company and their

skill set. There is no such straight jacket formula that can guarantee prosperity and it is only when

all these pieces work in perfect sync that a business prospers. One of the most important aspects

that lead to this perfect synchronisation is ‘accountability’ and it requires proper rules and

regulation, in which disclosure is the top most elements.22

18 Adrian Cadbury, The Financial Aspects of Corporate Governance, UNIVERSITY OF CAMBRIDGE JUDGE BUSINESS

SCHOOL (Feb. 5, 2020, 01:00PM), https://Ecgi.Global/Sites/Default/Files//Codes/Documents/Cadbury.pdf. 19 Supra note 3. 20 Ronnie Hampel, Committee On Corporate Governance: Final Report 1998, EUROPEAN CORPORATE GOVERNANCE

INSTITUTE (Feb. 5, 2020, 02:00PM), http://www.Ecgi.Org/Codes/Documents/Hampel.pdf. 21 Shri N.R. Narayana Murthy, National Foundation for Corporate Governance (Feb. 6, 2020, 12:00 PM),

http://www.Nfcg.In/Introduction-Page-10. 22 Ibid.

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http://www.nfcg.in/introduction-page-10



In the Indian context the notion of Corporate Governance is fairly new. CII (Confederation of

Indian Industry) set up a task force under the chairmanship of Mr. Rahul Bajaj in the year 1995

and released a code by the name “Desirable Corporate Governance” in 1998 which was voluntary

in nature. Various committees were setup by SEBI as well, among them, Kumar Mangalam Birla

Committee (2000) dealing with mandatory and non-mandatory disclosure requirements, Narayana

Murthy Committee (2002) focussing on disclosure of business risk, responsibility of audit

committee etc. and also Naresh Chandra Committee (2002) covering auditor-company relationship

are the notable ones.

The ‘Kumar Mangalam Birla Committee on Corporate Governance’ and the recommendation

given by them were implemented by the regulator SEBI in the form of ‘Listing Agreement’. One

of the most important clauses i.e. clause 49 of the ‘Listing Agreement’ directly relates to corporate

governance as it requires the companies that are listed in the stock exchanges to comply with

various disclosure requirements which are essential for transparency and accountability. SEBI by

its ‘Press Release No. PR 49, dated 21st February, 2000’ introduced Clause 49 for the first time. It

was later amended in 2005 and then in 2014.23

The revised clause 49 lays down overall framework or objectives of requirements of Clause 49

and companies are expected to interpret and apply those provisions in alignment with the

principles.24Some of the key changes that were made in 2014 amendment were, (i) Independent

Directors and there tenure; (ii)Independent Directors and there formal letter of appointment;

(iii)Succession Plan for Board/Sr.Management; (iv)Compulsory whistle-blower mechanism;

(v)Related Party Transactions; and (vi) Compulsory Electronic voting for all shareholders

resolutions (new Clause 35B).25

The latest report in this series is of Uday Kotak Committee on Corporate Governance. This report,

in the words of Mr. Uday Kotak himself, “is a sincere attempt and enables sustainable growth of

enterprise, while safeguarding interests of various stakeholders. It is an endeavour to facilitate the

true spirit of governance. Under the leadership of a vigilant market regulator- SEBI, and with the

persistent efforts of key stakeholders, corporate governance standards in India will continue to

improve. A stronger Corporate Governance Code will enhance the overall confidence in Indian

markets and in India.”26

The entire dispute of the Tata-Mistry has revolved around the interplay of these principles and how

these principles have not been followed in true sense, thus, leading to ‘oppression and

mismanagement’. Now the question that was asked initially in the article will be dealt as under.

IV. Oppression And Mismanagement

23 SEBI, “Circular No. cfd/Policy Cell/2/2014” (2014). 24 Supra note 14. 25 Supra note 20. 26 Uday Kotak, Report Of The Committee On Corporate Governance 2017, SEBI (Feb. 12, 2020, 03:00PM),

https://www.Sebi.Gov.In/Reports/Reports/Oct-2017/Report-Of-The-Committee-On-Corporate-

Governance_36177.html.

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https://www.sebi.gov.in/reports/reports/oct-2017/report-of-the-committee-on-corporate-governance_36177.html

https://www.sebi.gov.in/reports/reports/oct-2017/report-of-the-committee-on-corporate-governance_36177.html



‘The nascent debate on corporate governance in India has tended to draw heavily on the large

Anglo-American literature on the subject. However, the governance issue in the US or the UK is

essentially that of disciplining the management who have ceased to be effectively accountable to

the owners. The primary problem in the Indian corporate sector is that of disciplining the dominant

shareholder and protecting the minority shareholders.’27

If we refer to the corporate model followed in some of the developed countries like USA, United

Kingdom and Canada, we find a clear distinction between the owners of the company and those

who manages it. The board in these companies only act as a bridge between both the parties and

this scheme is known as ‘The Outsider Model’.

However, when we talk of the Indian Perspective, the model that is followed is ‘The Insider

Model.’ In the entire governance setup of a company, the board plays the central role. It is generally

perceived that corporate governance is a struggle between owners of the company and the

management. However, in India, the bone of contention is between the shareholders holding

majority of shares and those holding shares in minority. The board here cannot even resolve any

conflict that might prop up because it consists of those members who hold the majority shares of

the company concerned and only the control is needed to be exercised by these majority

shareholders.

The situation that has been presented in the previous paragraph is the focal point of this article.

In the Tata-Mistry dispute as well, the applicant, Mr. Cyrus Mistry (who at that time was the

chairman of Tata Sons Ltd.) alleged before the NCLT that his removal was not in a democratic

manner, instead the board of Tata Sons used oppressive tactics to remove him and it was without

any due cause. As a result, an application was moved by Mr. Mistry under Section 241 of the

Companies Act, 2013, alleging the oppressional and prejudicial acts of the majority shareholders.28

It was alleged that Mr. Tata orchestrated the entire proceeding along with Tata Trust (the majority

shareholder), thus, leading to ‘oppression and mismanagement’ by the majority against the

minority shareholders. This board room battle brought about an important aspect of Corporate

Governance into foray i.e. what are the safeguards for the protection of minority shareholders’

interest(herein, Cyrus Investments Pvt. Ltd. & Sterling Investment Corporation Pvt. Ltd, who

holds 18.37 per cent equity shareholding) against the majority.

When we talk about minority interest and their position to bring a case against the majority, the

first rule that is to be looked into is the Foss v. Harbottle Rule.29 It states that, “Once a resolution

is passed by the requisite majority then it is binding on all the members of the company. As a

resultant corollary, the court will not ordinarily intervene to protect the minority interest affected

by the resolution, as on becoming a member, each person impliedly consents to submit to the will

of the majority of the members”.30

27 Neerjagurnani, Oppression & Mismanagement – Corporate Law, ACADEMIKE (Feb. 14, 2020,

3:00PM),https://www.Lawctopus.Com/Academike/Oppression-Mismanagement-Corporate-Law/. 28 Supra note 1. 29 Foss v. Harbottle, (1843) 67 ER 189. 30 DR. G. K. KAPOOR & DR. SANJAY DHAMIJA, COMPANY LAW AND PRACTICE: A COMPREHENSIVE TEXT BOOK ON

COMPANIES ACT, 2013 (22d ed. 2019).

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This rule, thus, indicates that minority cannot go to the court against the decision of the majority

even if they are not happy or the decision is affecting their interest. However, there is an exception

to this rule i.e. ‘where the members holding majority position try to defraud or oppress those who

are in minority by the use their clout, then in such case even a single shareholder holds a

superseding power to impeach such a conduct by the majority’.31 Here, oppression does not simply

means the failure on the part of majority to take decisions or act in a manner which is in the interest

of the company as a whole, rather it should be an act which indicates an inconceivable use of

power by the majority and such undemocratic use of power has resulted or might result in

discriminatory as well as unfair treatment of minority and also financial loss to them.32

The Companies Act, 2013 has also provided specific provision for minority protection and the

same were relied upon by Mr. Mistry in his petition to NCLT. The principle of ‘majority rule’ as

stated in Foss vs. Harbottle does not apply in cases where Section 241 to 244 is applicable, for

prevention of oppression and mismanagement. A member can file an application under Section

241 if he feels that the affairs of the company are oppressive to some of the members including

him, thus bringing a ‘representative action’.

Though, the word oppression has been used many times but the same has nowhere been defined

in the Companies Act, 2013. In the Scottish case of Elder vs. Elder & Watson Ltd., the meaning

of word ‘oppression’ was given by Lord Cooper.,33and the same was cited in approval by J.

Wanchoo in Shanti Prasad Jain vs. Kalinga Tubes. It defined oppression as ‘the conduct

complained of should, at the lowest level, involve a visible departure from the standards of their

dealing, and a violation of the conditions of fair play on which every shareholder who entrusts his

money to the company is entitled to rely’.34

However, all these judgments will hold relevance only when the petitioner would be able to meet

the threshold provided under Section 244 of Companies Act, 2013 to present an application to the

NCLT. This threshold was one of the key points on which maintainability of Mr. Mistry’s petition

was dependent. If one-tenth of the issued share capital of the company is being held by the

shareholder/s and the all the calls have been paid, only then an application to NCLT will be

maintainable.35 The Mistry camp argued that they hold 18.37% Equity shareholding in Tata Sons

but the same was rebutted by the Tata camp stating that the Pallonji group held a mix of equity

and preference share capital and thus, the figure comes down around 3% as to holding share

capital.36The NCLT tilted in the favour of the Tata Sons and the case fell on a mere technical

fallacy even when the Act empowers the Tribunal to grant waiver to the applicant. Moreover,

considering the gravity of the issue involved in this dispute, the same should have been granted.

Now, as Mr. Mistry went in appeal to NCLAT, the same technical fallacy was rightly waived off

because the Mistry group had investment amounting to ₹1, 00,000 Crores out of the total

31 Edward v. Halliwell, AII ER (1950) 2 1064. 32 Supra note 5, at p. 733. 33 Elder v. Elder & Watson Ltd., (1952) SC 49 Scotland. 34 Shanti Prasad Jain v. Kalinga Tubes, AIR 1965 SC 1535. 35 § 244, Companies Act, 2013 (India). 36 Cyrus Mistry’s NCLT Petition Against Tata Sons Dismissed, LIVEMINT (Feb. 20, 2020, 1:00 PM),

http://www.Livemint.Com/Companies/6fpejrvtvjsi0rjb5sc0vo/Nclt-Dismisses-Cyrus-Mistry-Petitions-Against-Tata-

Sons.html.

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investment of ₹6,00,000 Crores in ‘Tata Sons Ltd.’.37This waiver has marked the beginning of the

twilight saga between the two. The approach adopted by the NCLAT is plausible because it is such

a case that if decided in its entirety, it will set benchmark guidelines and principles of corporate

governance, especially in light of ‘Oppression & Mismanagement’.

A. How the Act is Oppressive?

An answer to this question lies in the analysis of the Article of Association (AOA) of Tata Sons

Ltd., especially Articles 118, 121 and 75. Article 118 of AOA clearly stipulates that for the

appointment of chairman, a select committee is to be constituted and the same process is to be

followed when the removal of the chairman is in consideration. Only the constituted committee is

empowered to give its recommendation to the board to remove the chairman.38 But the same

provision was given a go by and Mr. Mistry was removed without any committee being formed.39

Interestingly, Tata Sons is a Non-Banking Financial Institution (NBFC) registered with RBI and

any change in the management of the company requires prior approval of RBI.40

Another important Article that went on to become highly oppressive in its usage was Article 121.

Even though Mr. Ratan Tata resigned from the chairmanship and he was given the status of

Chairman Emeritus, the same was declined by him and he stated that he would be available only

for advice. Article 121 gave ‘veto power’ to the trustee nominated directors but interestingly, these

directors worked on the advice of Mr. Tata and this led to an active involvement and interference

of Mr. Tata in the decision making.41 Many a times, Mr. Tata demanded pre-consultation from Mr.

Mistry before any decision making under the threat of violating the AOA but it went far beyond

solicited advice or guidance.42

Another abuse was of Article 75, which gives power to the Company through its board and by a

special resolution in shareholders’ general meeting, to transfer ‘ordinary shares’ of any shareholder

without any notice. But such meeting requires the affirmative vote of the nominated directors

which were appointed by ‘Tata Trust’. Affirmative vote means that without the approval of

directors no resolution can be passed (veto). The Nominated Directors of ‘Tata Trusts’ may not

allow the reduction of the ordinary share capital (paid up) below 40% aggregate, even if the

majority has approved of the same, if such a reduction is contrary to their interest, i.e., which may

ultimately result in their exit.43

A careful analysis of these Articles provided a bigger picture about the various tactics that were

devised by the Tata Camp to overpower the decision making of the minority SP Group. These

tactics hit on the core of corporate governance and were seem to be oppressive in nature. Also, the

way the decisions were halted by the interference of Tata camp led to mismanagement of the affairs

37 Supra note 2. 38 PTI, Tata Sons, TCS Violated Rules In Sacking Cyrus Mistry, THE ECONOMIC TIMES (Feb. 25, 2020, 03:00PM),

https://Economictimes.Indiatimes.Com/News/Company/Corporate-Trends/Tatas-Tcs-Violated-Rules-In-Sacking-

Cyrus-Mistry-Says-RTIReply/Articleshow/66446042.Cms?From=Mdr. 39 Supra note 2. 40 Supra note 35. 41 Supra note 2. 42 Ibid at 20. 43 Ibid at 118.

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of the company.

V. Conclusion

This article primarily focused upon the dispute between Mr. Ratan Tata and Mr. Cyrus Mistry and

it dealt with one important question of ‘oppression and mismanagement’ in relation to corporate

governance.

This dispute is the best example of the most common issue that the corporations in our country are

facing, i.e., “competency vs. charisma”. Mr. Tata should still hold the same authority which he

once held in ‘Tata Group’ but once he passed the baton to his successor, then the said successor

should have been allowed to function freely. The most compelling argument favouring the

exclusion of central control is that The Tata Group of Companies cater huge investment from the

general public and therefore, it should not be made to run as a one man show. There is no denying

the fact that Mr. Tata has been quintessential in making the Tata Group as one of the biggest brands

of the world but no one can be ignorant of the fact that this ‘Group’ at last is a public company

where thousands of crores of the general public is invested. Therefore, the denial of the interest of

these shareholders hits at the very heart of the ‘Corporate Governance’ and since corporations are

the power houses of our economy, this principle should be followed in its most ethical sense.

This dispute has given us the best example of what ‘legacy issues’ are and how tactics are being

devised to protect the same. The recent attempt of ‘Tata Sons’ to convert itself from public to

private was also an attempt in this direction, since a Private Ltd. Company is not subjected to such

rigid norms of corporate governance as compared to what public company adheres. However, this

attempt has also been thwarted by the NCLAT.

The word ‘Corporate Governance’ is not new; this principle has been a subject of various academic

research and policy discourses, not only in India, but also in countries around the world. In India,

the jurisprudence behind corporate governance has been developed by various committees like Mr

Kumar Mangalam Birla committee, Mr Narayan Murthy committee, Mr Naresh Chandra

committee and the latest being Mr Uday Kotak committee.

It has been proved time and again that companies which have exhibited a sound corporate

governance mechanism have been able to generate significantly higher amount of profits than the

companies that have not exhibited or have exhibited poor corporate governance. The governance

system also influences the output and investment decision of firms through several channels that

include ownership.44

Coming back to Tata, it is one such name that has remained attached to us since our country’s

inception. It is a company that has been a constant source of power in building the nation. It is a

company that has grown from “salt to software”. The governance of Tata has always been praised

not only because of their business decisions and new ventures but also because of their huge

inclination towards charity and welfare work that they have done.

44 Maria Maher And Thomas Andersson, Corporate Governance: Effects On Firm Performance And Economic

Growth, OECD (Feb. 25, 2020, 03:00PM), https://www.oecd.org/Sti/Ind/2090569.pdf.

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However, because of this dispute between Mr. Tata and Mr. Mistry, an unwanted blot in the name

of Tata Group has come up. The Tata Group kept on blaming Mr. Mistry for any loss that the Tata

Enterprises suffered but at the same time they forgot that any decision of the Board of Directors

required an affirmative vote of the nominated directors of the Trust.

Therefore, it won’t be wrong in asserting that if the company performed not up to the expectations

or even went into losses, then it was not only Mr. Mistry who could be held solely responsible.

Moreover, the ‘nomination and appraisal’ committee, whose task is to evaluate the performance

of senior management had representation from the Trust since their Nominee Directors were the

members of this committee. This committee surprisingly appraised Mr. Mistry’s leadership in its

report on 28th June, 2016 (i.e. just a few months before he was removed) under Section 178 of the

Companies Act, 2013.

The follow-up of this dispute has led to various amendments in the companies Act, 2013. It will

not be apt to say that this dispute is the reason for so many amendments under Section 241 to 244

of Act of 2013. But it is definitely the inspiration behind the development in the jurisprudence of

Corporate Governance. Moreover, this dispute also involved other issues, like the role of

independent directors in the decision making of Board Meetings, which was also questioned in

this case.

As the matter is now sub-judice in the Honourable Supreme Court, it can rightly be expected that

a lot of developments in this regard will take place and the roles of each and every stakeholder in

the company will be more clearly defined, so that in the future, such a situation does not arise.

Two groups that had always stuck together with each other for the past 50 years through thick and

thin are now fighting a battle in the court of law.

At last it can be assumed that sound business relations are not just for the groups involved but they

have an impact on a large scale. When these relations are strained, then the ripples are felt in every

corner of the corporate world. Even after the NCLAT ordered the reinstatement of Mr. Mistry as

the Executive Chairman of the group, the latter himself refused to join because of the present state

of relations between the Tata’s and Pallonji Groups. Therefore, with a thorough analysis of this

dispute, one can better understand ‘Corporate Governance’ and what are the deleterious effects

when the same is neglected. Henceforth, the question asked in the beginning is answered in

affirmative as this struggle struck at the very core of corporate governance and it was a classic

example of ‘Oppression and Mismanagement’.

58



Groundwater Management Under Indian Legal Framework

Farzin Naz and Jayanta Boruah1

Abstract

Groundwater resources have now attained the status of being an important element of

maintaining a standard livelihood for the citizens of a Nation. In India, there has been a

significant decrease in the existing amount of groundwater available. It is expected that many

major cities of the country will get wiped out from having groundwater accessibility soon. But

whatever has been lost can be revived if systematically utilized the existing groundwater

resources in a planned manner, which we can learn from the aftermath of the Cape Town

water crisis. However, for achieving such systematic management of groundwater resources

on sustainable utilization, laws have a major role to play. This makes studying the legal

framework governing such management of the utmost importance. Therefore, this paper

analyses the Indian legal framework whereby several issues were highlighted along with the

need for nationalizing ownership over groundwater resources.

Keywords:

Groundwater; Management; Sustainable Utilization; Conservation; and Ownership Rights


I. Introduction

Groundwater is an important source to meet the requirements of both domestic and industrial

sectors in India. It is considered to be a part of the overall hydrologic cycle and can be defined as

precipitation, which percolated down the earth and forms a part of the underground water reservoir.

The average annual precipitation in India is higher than that of every other continent globally

except that of South America.2Groundwater is a common property accessible to all, and anyone

can bore a well and pump out as much water as (s) he wants. Our great Indian thinker, like Manu,

was interested in exploring the means of storing rain-water and exploring the methods to locate

groundwater sources. Works like Brihatsamhita and Arthasatra describe the earth's interior as

water channels, further subdividing it into thousands of streams at different levels supporting the

life of different plants and trees on the earth. As per the great sages' writings, the groundwater

resources can be explored in the areas where surface water is not available.3

It has become the backbone of our economy. India’s Groundwater use went up from 70km3 in 1940

to about 290km3 in the present day. As per the reports, India at present, is tapping about 253 BCM

of water annually. As per Planning Commission Twelfth Five Year Plan (2012- 2017)4 the number

of groundwater irrigation structures is now around 28 million. Apart from the overexploitation of

groundwater, another issue is contamination, posing a threat to the water table. It has been observed

that almost 70% of all districts in our country have issues related to groundwater quality. India is

1 Farzin Naz, LL.M., National Law University and Judicial Academy, Assam; and Jayanta Boruah - Research

Scholar, North-Eastern Hill University, Shillong. 2 Centre of Science and Environment, The Wrath of Nature: The Impact of Environmental Destruction, (Oct 10, 2019,

01:12 AM) http://www.indiaenvironmentportal.org.in/files/file/the%20wrath%20of%20nature.pdf. 3 Report of Expert Group, Groundwater Management, and Ownership, (2007), Planning Commission Report (Oct 10,

2019, 01:13AM) http://planningcommission.nic.in/reports/genrep/_grndwat.pdf. 4 Planning Commission, Twelfth Five Year Plan (2012-2017).

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http://planningcommission.nic.in/reports/genrep/_grndwat.pdf



facing a serious groundwater crisis, with reports from different parts of India highlighting the

same. It calls for need and mitigation both in the fields and in the policy of our country.

Groundwater extraction rights of the landowners in India is based on the Indian Easement Act,

1882,5a pre-independence legislation based on the principle that landowners have the right to

collect and dispose of groundwater within their own limits. Thus, it is difficult to regulate

groundwater law as it is owned by the person by whom land is owned. The landowners have thus

become powerful concerning water rights. The present Model Laws adopted by the Government

focus mostly on allocation and have failed to control the landowners' powers.

The shortage and exploitation of groundwater is not new. Pollution and depletion of groundwater

is because of human activities. Groundwater contamination is due to the presence of nitrate,

chloride, arsenic, and other contaminants that are in excess of limits prescribed. Bacteria, heavy

metals, domestic sewage, leakage from septic tank, etc. are other forms of contaminants. It has

been highlighted in reports6 that almost every district is facing both water quality and water

availability issues. The world is facing the biggest problem of all time. The groundwater table is

declining faster because of unscientific and unplanned use of water by people. The situation

demands immediate action from the side of Government agencies as well as communities.

Recognizing the growing problem of water crises, legislations were adopted both at the National

as well as State level by the Government of India to combat the problem.

CONTAMINANTS NUMBER OF STATES

AFFECTED

NUMBER OF DISTRICTS

AFFECTED ARSENIC 10 68

FLUORIDE 20 276

IRON 24 290

CHLORIDE 21 385

Table: States and Districts Affected by Contamination of Groundwater7

Therefore, this paper will try to analyse the key concerns of the Indian Legislative Frameworks to

understand why after having so many laws and policies, groundwater issues are increasing rather

than getting solved?

II. Indian Legal Framework on Groundwater Management

At the time of framing the Constitution, no one was aware of the need to protect the water

resources. So, no provisions were initially inserted by the founding fathers of the constitution to

protect natural resources, especially water. The lawful system for groundwater in India is limited

by two fundamental components. First, it is one of only a handful of frameworks on the planet

where groundwater rights are not officially vested in the state (in the significance of the

administration and its authorities). Secondly, the capability to administer on water-related issues

5 The Indian Easement Act 1882, No. 5 of 1882, Acts of Parliament (India). 6 PRS INDIA, Overview of Groundwater in India, (Oct 10, 2019, 01:33 AM)

https://www.prsindia.org/administrator/uploads/general/1455682937~~Overview%20of%20Ground%20Water%20I

ndia.pdf. 7 Id.

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is left with the individual States instead of the Central Government. Most States have ordered laws

directing groundwater use or have Bills pending the last endorsement. India has adopted a

regulatory instrument to protect and preserve groundwater resources.

a. Indian Constitution and Groundwater management

In the Constitution of India, water is placed in the state list in "Entry 17"8 of List II in the seventh

schedule. Subject of water is however not left completely in the hands of States. “Entry 17” is

subject to provisions of “Entry 58” List I of the seventh Schedule i.e. Union List. Although

groundwater under “Entry 18” of List II in State List provides rights over land but water has come

for special treatment under “Entry 17” of the said list and subject to “Entry 56”of List I

provisions.9Thus, groundwater falls within the purview of Parliament also. Parliament can in the

public interest, use its executive and legislative power to preserve, protect, and monitor the use of

groundwater. Despite these powers of the Parliament, the Supreme Court's judicial review power

is utilized from time to time in deciding matters and legitimacy of legislations. The Constitution

has imposed general obligations upon States to provide clean and potable water to the citizens of

India and has also provided that resource is to be used in equitable and just manner and without

causing maximum harm to the environment and some of such provisions can be highlighted as

below:

b. Article 38

As per Article 38(1) of the Constitution of India, the State is to verify a social request for the

advancement of the welfare of the individuals in which legal, social, monetary, and political

interests will illuminate regarding the organizations of national life. Further, the State is under a

duty to specifically make arrangements towards verifying that the possession and control of

material assets and the monetary framework activity don't bring about the grouping of riches and

means of creation to the regular impediment.10

c. Article 48A and Article 51A(g)11

As per these two articles, both the State and the citizens are under the fundamental duty to protect

and improve the environment. Although the constitution provides these ideals but planning and

policy strategies are not up to the mark. The reason behind this can be that directive principles are

not enforceable and gives rise to mere duty or obligation towards the State as well as citizens. But

if interpreted in good way, it will be effective. For example, in Ratlam Municipality Case12 it was

held by the Supreme Court of India that a citizen can take a legal action against state and local

bodies for non-implementation of statutory duty through writ of mandamus.

8 INDIA CONST., Entry 17 of the List II in the Seventh Schedule “Water, that is to say, water supplies, irrigation and

canals, drainage and embankments, water storage and water power subject to the provisions of Entry 56” of List I. 9 Id. At Entry 56 of List I in the Seventh Schedule (Union List) Regulation and development of inter-State rivers and

river valleys to the extent to which such regulation and development under the control of the Union is declared by

Parliament by law to be expedient in the public interest. 10 Id. Ar. 39(b) & Ar. 39(c). 11 Id. Art. 48A, Art. 51A(g). 12 Ratlam Municipality v. Varichand, A.I.R. 1980 S.C. 1622.

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d. Article 21

Right to Life under Article 21 of the Constitution of India also deals with the Right to Pollution

free water as decided by the judiciary in landmark cases. This has been made possible due to liberal

interpretation by the Supreme Court and the High Courts of India. Article 21 has been interpreted

from time to time by our judiciary to include some new rights like the right to food, right to shelter,

right to livelihood, etc. Recognition of new rights, i.e.; the Right to pollution-free water and the

right to a clean environment, is of significant importance and directly connected to management

and groundwater conservation. Originally, the right to water was not recognized as a fundamental

right and was nowhere mentioned in our Constitution. It was only through judicial pronouncements

that right to water became a part of Article 21. In the famous case of Subhash Kumar v State of

Bihar13, Right to live was recognized as a fundamental right. Along with this, the right to live in

pollution-free environment and the right to full enjoyment of one's life, was also recognized as part

of Article 21. In case where a person is denied of above-mentioned rights, he can approach the

Supreme Court under the provision of Article 32. Thus, the Right to water has been highlighted in

a number of judicial pronouncements, and now it has become the law of the land.

In the case of Attakoya Thangal v. Union of India14, Kerala High Court held that the pumping and

distribution of water in excess was violative of Article 21 of the Constitution of India. In this

particular case the Lakshadweep Island's administrative authorities entered into an agreement for

supply of water by digging wells for meting increasing demands of potable water. Petitioners on

the ground challenged this agreement that it was violative of Article 21 as there was a shortage of

groundwater in the islands and excessive pumping would result in complete depletion and would

disturb to a large extent the freshwater equilibrium. Further, in the case of Gautam Uzir & Anr.

V. Gauhati Municipal Corp.15 The court held that the municipal corporation was responsible for

supplying clean drinking water and had a responsibility to look into the scarcity and impurity of

potable groundwater.

Thus, it can be said that environmental constitutionalism received growth at around 1978 with the

interpretation of Meneka Gandhi16case by the Supreme Court of India. The court held that the

correct view is to expand the ambit of fundamental rights and not to attenuate the meaning by

judicial interpretation. Supreme Court's interpretation has led to the emergence of new

environmental jurisprudence. The judiciary has repeatedly declared that the right to water is the

law of the land, and every State is bound by it.17

Fundamental Right to Water also highlights few obligations which the State is bound to fulfil.

Likewise, State is bound to take up steps from time to time to restrict illegal groundwater

extraction, prevent over-exploitation, and pollute the groundwater basin. India has successfully

imposed several restrictions on illegal extraction and overuse of groundwater. In recent days, the

development is also reflected in number of orders which has been passed by the National Green

Tribunal, restricting commercial activities. Under these circumstances, it is the duty of the State to

13 Subhash Kumar v. State of Bihar, AIR 1991 SC 420. 14 Attakoya Thangal v. Union of India, 1990 (1) K.L.T. 58. 15 Gautam Uzir &Anr. v. Gauhati Municipal Corp., 1999 (3) GLT 110. 16 Meneka Gandhi v. Union of India, AIR 1978 SC, 594. 17 INDIA CONST. Art. 141.

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take up both legislative and executive steps to obstruct commercial activities involved in illegal

extraction of water.

III. Government Policies Related To Groundwater Management

In the year 1960 water management was serving needs of flourishing economy, India was gaining

wealth, but at the same time, the environment and other resources were degrading. A number of

changes took place at the national and State level to combat water problems. The Government's

concern towards maintaining purity, potability, and groundwater availability resulted in taking up

some important policies by the Central Government for maintaining groundwater level and its

purity. Some important policies were taken up in the government of India are:

a. National Water Policy 198718

The Government adopted a freshwater policy in the year 1987 by a committee consisting of Chief

Ministers of all the States under the chairmanship of Rajiv Gandhi. With respect to groundwater

management, the policy speaks about assessment of groundwater on scientific basis. It further

highlighted the issue of the exploitation of groundwater resources and the need to take up

groundwater recharge projects to reach available supplies. The policy rightly addressed the need

for conjunctive use of both surface water and groundwater.

b. National Water Policy 2002

The National Water Resources Council under the Chairmanship of the Prime Minister on 1st April

200219 adopted the new National Water Policy 2002.The Policy of 1987 was updated in 2002 with

more or less same views on groundwater management. It also highlighted the need for regulating

of groundwater resources and prevention of over exploitation so that overuse does not exceed

recharging limits. However, this policy was mere suggestive in nature and more focus was based

on surface water management rather than groundwater management. The approach to groundwater

was blurred.20

c. National Water Policy 2012

The Ministry of Water Resources on June 7, 2012 published the draft NWP 2012 to address issues

related to water scarcity, planning and management of water resources.21 Latest version of National

Water Policy 2012 has been explicit on groundwater management. The policy rightly focuses on

managing groundwater as a community resource by the state under the principle of public trust

doctrine to achieve complete food security and sustainable management of groundwater.

Analysing the policy, it can be deduced that this policy, besides being scientifically and technically

more advanced than previous water policies, also recommended that surface water should be used

18 National Water Policy 1987 (Oct. 20, 2019, 02:38 AM) http://cgwb.gov.in/documents/nwp_1987.pdf. 19 PIB report (Oct. 20, 2019, 02:54 AM) https://pib.gov.in/PrintRelease.aspx?relid=70832. 20 National Water Policy 2002 (Oct. 20, 2019, 02:31 AM) http://cgwb.gov.in/documents/nwp_2002.pdf. 21 PRS report, Draft National Water Policy 2012, (Oct. 20, 2019, 02:54 AM)

http://www.prsindia.org/administrator/uploads/general/1345794528_Draft%20National%20Water%20Policy%2020

12-Summary.pdf.

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in conjunction with both rainwater and groundwater. Further focus is also on separation of

electricity supply for pumping water from underground for agricultural and other rural uses.22

IV. Government Plans For Groundwater Management

Some of the important plans undertaken by the Government of India for groundwater management

are:

India saw a shift in priority from surface water to groundwater in 1966-1967 with the Third

Five Year plan's coming. The focus was on groundwater management due to water scarcity

resulting from the drought that hit India's eastern parts during 1966.

Subsequently, in the Fourth Five Year Plan a comprehensive policy was adopted for water

management to focus on refilling water in water scarce areas.

Further, by Sixth Five Year Plan broader objectives were adopted like:

a) Groundwater Management

b) Organization and functioning of authorities

By Seventh Five Year Plan, water management strategy has been taken up and includes

plans for exploration of groundwater based on priority and focus on eastern and north-

eastern states. It further provides for conjunctive use of surface water and groundwater.

National Aquifer Management (NAQUIM23 This particular program was launched on the

12th Plan Working Group's recommendation on Sustainable Groundwater Management of

the erstwhile Planning Commission. One of the important objectives of the program is to

promote and enhance participatory groundwater management. The program aims to

educate local communities with a seamless flow of information regarding local water

aquifers.

Water Policy and Action plan 202024:

The Planning commission of India puts forth the policy. The goals put in are to do justice to all

users of water. At present central and State governments are empowered to play a key role in water

management. But by this action plan focus is shifted to the community level and communities are

made to conserve and manage resources at local level by themselves. The policy suggests some

important changes at the micro level, like suggesting community-based organizations setting up to

monitor and manage water resources. The policy highlights that first right to groundwater

resources should not be in the hand of landowners; rather, such rights should be in the concerned

community's hands. Community-based organizations shall have full authority to monitor and

inspect groundwater use by private landowners.

Pani Panchayat for Managing water Level25: Pani Panchayat has been operational since

2015 in the State of Orissa. Under the Pani Panchayat Act of 2002, Pani Panchayats are

formed by conducting elections. Since 2015, Pani Panchayats have strengthened 6 major

22 PIB Report (Oct. 21, 2019, 01:11 AM) https://pib.gov.in/newsite/Printase.aspx?relid=90775. 23 Press Information Bureau Government of India, Ministry of Water Resources (Oct. 21, 2019, 02:12 AM)

https://pib.gov.in/PressReleseDetail.aspx?PRID=1556633. 24 Water Policy and Action Plan for India 2020 (Oct. 21, 2019, 02:35 AM)

http://planningcommission.nic.in/reports/genrep/bkpap2020/10_bg2020.pdf. 25 Pani Panchayat for Water Management (Jul 29, 2020, 3 AM) http://jalshakti-

dowr.gov.in/sites/default/files/BestPractice-PaniPanchayats.pdf.

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irrigation projects in Orissa. In the year 2016, in Sunei Medium Irrigation Project,

coordination of Pani Panchayats along with rotational irrigation practices led to 36%

increase in water level, when the State was facing drought like situation.

Atal Bhujal Yojana26: The goal of this particular program is to highlight community-led

practices of sustainable groundwater management. The program is aimed at improving the

groundwater level in some water-stressed areas like Rajasthan, Gujarat, Haryana and

Madhya Pradesh. It also aims at changing the behaviour of the community through

conducting awareness and training program. The scheme further aims at financially aiding

the State Governments for investing in suitable programs.

Model Building Bye-Laws, 201627: Under the Bye-Laws, a new provision has been inserted

which provides that all types of buildings having plot size 100sq. m and above, is required

to do rainwater harvesting. The bye-laws further recommended that recharging of

groundwater by households having an area of 500 sq. m and above, should be made

compulsory.

“(PMKSY)-Har Khet ko Pani (HKKP)”28: This scheme became operational from 1st July

2015. It envisaged groundwater development through wells and the main objective of this

scheme is to improve farm water efficiency and enhancement of aquifers recharge. It aims

at groundwater development without endangering groundwater sustainability.

V. Statutory Efforts For Groundwater Management

Some of the important legislative measures taken for groundwater management are enlisted below:

The Groundwater Model Bill 1970/2005

Growing problem of water scarcity and water pollution, India's Government adopted

legislation to prevent groundwater depletion and management. The Government of India

introduced a Bill by name Groundwater Model Bill 197029. This was perhaps the flexible

legislation as the States could adopt it according to their needs. For instance, some states like

Karnataka have adopted Karnataka Ground Water Act 1999 to regulate drinking water issues in

the state. The main objective of the proposed Bill was the establishment of a Groundwater authority

to regulate groundwater resources. The groundwater authority is to consist of –

a. Chairman appointed by the respective State Government or Union Territory

b. Members for conducting survey, exploration and protection of groundwater

resources to be appointed by the State or Union Territory Government.

c. Members having special knowledge in the field of groundwater are also to be

appointed by the Government.

The proposed Bill also highlighted some of the important powers of the groundwater authorities.

Some of them were:

26 Atal Bhujal Yojana (Jul 29, 2020, 11:00 AM) http://mowr.gov.in/schemes/atal-bhujal-yojana. 27 Ministry of Urban Development, Government of India, Model Building Bye-Laws, 2016 (Jul 29, 2020, 12 AM)

http://mohua.gov.in/upload/uploadfiles/files/MBBL.pdf. 28PIB, Har Khet ko Pani (Oct. 21, 2019, 02:11 AM) https://pib.gov.in/PressReleseDetail.aspx?PRID=1556633. 29 Ministry of Water Resources, Model bill to regulate and control groundwater development (Oct. 22, 2019, 11:17

PM) https://www.indiawaterportal.org/articles/model-bill-regulate-and-control-development-groundwater-ministry-

water-resources-1992-1996 last seen at 21/10/2019.

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http://mowr.gov.in/schemes/atal-bhujal-yojana

http://mohua.gov.in/upload/uploadfiles/files/MBBL.pdf

http://www.indiawaterportal.org/articles/model-bill-regulate-and-control-development-groundwater-ministry-

http://www.indiawaterportal.org/articles/model-bill-regulate-and-control-development-groundwater-ministry-



i. The Groundwater authority has power to notify areas deemed necessary for

groundwater extraction or use of water.

ii. It may grant permission for extracting and use of groundwater in areas notified by

way of permit. However, there is an exception to this rule as small farmers are not

required to take permission for extraction of water for domestic purposes, excluding

commercial purposes.

iii. The authorities have power to alter, amend the terms and conditions of permit.

The Model Bill on Groundwater 2011

In its twelfth five-year plan, Planning Commission recognized the need for new legislation

governing groundwater crises across the country. The Bill was formulated to allow States to adopt

groundwater legislation according to their needs and circumstances. Some of the striking features

of the bill are:

i. The Bill recognizes groundwater as a public trust. This bought rule in conformity

with the Supreme Court decision in the landmark case held that the bill by

recognizing groundwater as public trust has enhanced the possibility of community

management and control of water resources.

ii. Section 8 of the said Bill recognizes the fundamental right to water and importance

has been prioritized over other groundwater resources.

iii. The Bill reflects the essence of 73rd and 74th amendment to the Constitution of India.

It lays down provisions for the constitution of Gram Panchayat Groundwater

Committee to regulate the use of groundwater sources within their jurisdiction. At

urban level, the Bill provides for constitution of ward groundwater committee and

municipal groundwater committee to regulate groundwater resources.

iv. The Bill also recognizes the need of sustainable use and protection of groundwater

resources and thus provides for demarcation of groundwater protection zones to

protect groundwater sources from deterioration due to chemical and other pollution.

v. The Bill also consists of a separate chapter on Social and environment impact

assessment, dispute resolution mechanism, and other miscellaneous provisions

stated in the Bill.

vi. Groundwater complaint redressal officials are given ward over all grievances

emerging inside the region for which they have been selected. They are given

similar forces and obligations as vested in a common court. Advances from the

groundwater complaint redressal officials can be taken to the Gram Nyayalya set

up under the Gram Nyayalayas Act, 2008 in country regions and under the watchful

eye of the sub-court in urban regions.

The Groundwater (Sustainable Management Bill) 2016

The Ministry of Water Resources drafted the Bill in the year 2017. Some of the key features of the

Bill are:

i. The bill is based on current understandings of groundwater and its link with surface

water and it is not based on legal framework of 1970.

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ii. The Bill recognizes groundwater as a public trust, the recognition of the

fundamental right to water and the introduction of protection principles, including

the precautionary principle, that are currently absent from water legislation.

iii. The new Bill is based on decentralization and focuses on water's unitary nature and

the need for protection at the aquifer level.

Few State Regulations On Groundwater Management

Out of all 29 states in India, almost half of them have adopted measures in the form of State

Legislations for groundwater Management in their respective states. The growing problem of water

management demands for universal legislation as most of the States are still ignoring and are not

ready to adopt legislation due to political reasons. Some of the examples of Groundwater Acts of

different States are:

a. The Andhra Pradesh Water, Land and Trees Act 2002:

This particular Act was adopted by the state of Andhra Pradesh in the year 2002 to regulate and

promote groundwater development and focus on the conservation of trees. Some important

features of this Act are:

As per section 3 of the said Act there shall be an authority for regulating all

groundwater resources in the state, including wells and other water bodies.30

The Act further empowers the Authority to prohibit pumping of excessive water if

it believes that such excessive pumping would result in damage of groundwater

table or environment and such prohibition can be extended to a period of 6 months.

Section 13 further provides for distance and depth at which pumping can be done

in order to curb unhealthy tapping of water from deeper layers of water resource.

The Act is comprehensive and provides reasonable opportunity of being heard,

provisions of appeal and penal punishments area also there.

b. The Goa Groundwater Regulation Act 2002:

This particular Act provides for constitution of groundwater cell by the state government for

regulating groundwater resources in the State. In consultation with the cell the State Government

will notify the area which area scare in water resources.31 Permission is to be taken from the

groundwater officers before sinking of a well and any act violating the provisions can be penalized.

c. Bombay Irrigation Act (Gujarat Amendment) Act 197632

The State did not take up separate legislation for groundwater management, but the Act's provision

has been applied in groundwater management. Section 99 of the said Act regulates and prohibits

wastage of groundwater

30 The Andhra Pradesh Water, Land and Trees Act 2002, (Oct 23, 2019, 01:12 AM)

https://www.indiawaterportal.org/articles/andhra-pradesh-water-land-and-trees-act-2002. 31The Goa Groundwater Regulation Act 2002 (Oct. 24, 2019, 01:12 AM)

https://www.indiawaterportal.org/articles/andhra-pradesh-water-land-and-trees-act-2002. 32 Bombay Irrigation Act (Gujarat Amendment) Act 1976.

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Some other important State Acts regulating groundwater are

Assam Ground Water Control and Regulation Act, 2012

Bihar Groundwater Act 2006

Chennai Metropolitan Area Groundwater (Regulation) Act,1987

Delhi NCT Groundwater Regulation Directions, 2010

d. Constitution of Central Groundwater Authority (CGWA):

In pursuance of Supreme Court's orders in number of cases since 1996, the court directed for

establishing a separate Central Groundwater Authority under the provisions of the Environment

Protection Act 1986. The purpose of setting up of such a separate authority was for better

regulation and control of groundwater management. Further, in a landmark decision of Vellore

Citizens,33Supreme Court directed the Central Government to constitute CGWA under the

provision of Environment Protection Act 1996.34

Powers of CGWA

Some of the important powers of CGWA are as follows:

CGWA has been entrusted with the power under section 5 of the Environment Act 1996 to

issue directions and take necessary measures for groundwater management.

CWGA has power to enforce penal provisions listed in section 15 to 21 of the said Act.

CWGA has power to appoint officers under the provisions of the said Act.

Regulatory Measures taken by the CGWA

Certain important measures taken up by the authority for regulating groundwater management:

i. CGWA has to notify overexploited areas for regulating groundwater management.

ii. Another important activity is to promote efficient water management techniques such as

use of sprinkler or drip irrigation techniques among farmers and suggest alternative crops

to ensure efficient water use.

iii. CGWA ensures that no groundwater structures are constructed in areas notified as water

scare and permission in such cases are granted only to government authorized agencies for

supplying water for drinking purpose.

iv. Some recent measures adopted by the Board for ensuring groundwater management are:

CGWA has circulated the Model groundwater bills among all the states and union

territories so that the state groundwater legislations are adopted as per the need of

the State/UT’s.

In the year 201335, a document was adopted for constructing almost a crore

rainwater harvesting and artificial groundwater recharge structures in the country.

The said plan was circulated among all the states for proper implementation.

CGWA has notified almost 162 regions as critical or exploited for groundwater

management and some of them include areas in Delhi, Haryana, Punjab and many

more36.

33 Vellore Citizen Welfare Forum v. UOI, AIR 1996 SC 2715. 34 Environment Protection Act 1986, No. 29 of 1986, Acts of Parliament (India). 35 Master Plan 2013 (Oct 24, 2019, 01:15 AM) http://mowr.gov.in/sites//files/MeasuresForGW-Depletion_0.pdf. 36 Id.

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CGWA has taken up new initiative of Aquifer Mapping37. Major objective of such

plan is to identify possible area for groundwater research so as to ensure

sustainability of water and to meet the current issue of water contamination.

vii. Role Of Judiciary In Groundwater Management

India is facing unprecedented crises of groundwater and the major reason behind this is industrial

growth, pollution, urbanization and poverty. From the very beginning more focus was placed on

economic development of the country and less or no attention was given to the problem of

groundwater depletion. India has to deal with two challenges, namely pollution of surface water

and secondly groundwater depletion. Water is a basic human need and its denial may mean denial

of the Right to Life. During the last ten years, the groundwater level has gone down by 10 to 30

meters. According to a recent report of Niti Aayog, Delhi will be among the first state which will

run out of groundwater by the year 2020.38

Need of judicial activism is the need of the hour. Of late judiciary has entered into a new era and

has come down heavily against the policies of the Government that aim at environmental

degradation. Some of the long course activities of judiciary, tribunals and green citizens have

helped resolve various issues of environmental protection. The courts in India played a crucial role

in enlarging the scope of environmental protection through a spate of cases covering various

environmental aspects.

Role of Supreme Court of India

The Supreme Court of India has interpreted Article 21 from time to time and given a wider

meaning to Right to Life under Article 21 of the constitution of India. The Supreme Court has

cited in various cases that right under Article 21 includes the right to livelihood, right to food and

right to potable water.39The right has been cited in few other cases as well.

Since 1996, the Supreme Court started applying the Public Trust Doctrine in deciding disputes

having environmental importance. The doctrine is of Roman origin and is based on the basic

principle that Government is the proprietor of certain important resources like rivers, shores, etc.

in trusteeship for the citizens. Supreme Court of India has applied this doctrine in the year 1996

and held that the trustee cannot convert the resources for private use as it is a public trust. It was

further held that State is a trustee and has a legal duty to protect natural resources for public good40.

Further in another important case the Supreme Court has held that the trustee has no right to

convert the trust property for commercial purpose and trustee is to hold and protect property for

future generations.41

In year 2018, the Supreme Court of India in case concerning unauthorized constructions in Delhi

37 Id. 38 Niti Aayog Report 2018, NITIGOV.IN (Oct 24, 2019, 02:10 AM)

https://niti.gov.in/writereaddata/files/new_initiatives/. 39 Attokoya Thangal v. Union of India, 1990(1) KLT 580. 40 M C Mehta v. Kamal Nath, (1997) 1 SCC 388. 41 Fomento Resorts and Hotels Ltd v. Minguel Martins, (2009) 3 SCC 571.

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and its effect on groundwater, on a report submitted by the Central Groundwater Board directed

the Ministry of Water Resources to look into the matter urgently and suggest some possible

solutions to avoid water groundwater crises.42

Role of High Courts

Not only Supreme Courts have shown an active participation in groundwater management but also

the High Courts of India in the last two decades have enriched environmental jurisprudence. By

using the instrument of Public Interest Litigation High Courts have recognized water rights and

enhanced the active participation in environmental matters. High Courts have recognized

environmental rights as a part of Article 21 and cited some important cases. In an important

decision the Andhra Pradesh High court held that drinking water is a fundamental right of the

citizen and it cannot be denied at any cost. It further directed for setting up of a Committee to look

and supervise on matters of groundwater pollution.43

Further in the year 2006, a PIL was decided by the Kerala High Court and it held that State

Government’s inability to provide safe potable water to people of the State would amount to

violation of Article 21 and Government is under an obligation to provide safe drinking water to

all.44

Recently, the Madras High Court45passed an order dated July 18 2019 on a plea moved by P R

Sivasankar seeking direction from the court towards district authorities to take immediate action

against those involved in illegal tapping of groundwater for commercial purpose in Poonamalle

area in Chennai. The Madras High Court directed the Tiruvallur District Revenue Officer and

Taluk Tahsildar to inspect and take immediate action by directing them to confiscate the vehicles

and apparatus involved in illegal extraction of groundwater and also to impose heavy fine on the

violators.

Role of National Green Tribunal

Both the Supreme Court and High Courts were active and prompt in discussing matters relating to

environmental importance. But with time the courts were overburdened with filing of more cases.

So, all the developments forced the Government to take an alternative step and as such the

Government came up with the National Environment Tribunal Act and subsequently the National

Environment Appellate Authority Act 1997. A progressive step was taken up by the Government

of India by enacting the National Green Tribunal Act 2005 and since establishment is meeting the

aspirations of long-time demand of environmental courts in India.

In a recent order46, National Green Tribunal while considering an issue regarding illegal extraction

42 M C Mehta v. Union of India and Others, 2018. 43 Wasim Ahmed Khan v. Govt. of AP, 2002 (5) ALT 526. 44 Vishala Kochi Kudivella Samrakshana Samithi v. State of Kerala, 2006(1) KLT 919. 45 P Narayan, Imposing Fine on water tankers not enough: Illegal Water Extraction, THE TIMES OF INDIA (Oct 24,

2019, 02:15 AM2019) https://timesofindia.indiatimes.com/city/chennai/crisis-cant-justify-illegal-groundwater-

extraction-says-hc/articleshow/70299501.cms. 46 National Green Tribunal, Order dated 18/06/2020, INDIAN ENVIRONMENTAL PORTAL (Jul 29, 2020, 02:33 AM)

http://www.indiaenvironmentportal.org.in/files/file/silica-washing-units-NGT-order.pdf.

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of groundwater for washing silica, held that no unit shall be allowed to extract groundwater

illegally without having a NOC, as required to be obtain from CGWA. Moreover, the Tribunal

further directed that NOC cannot be issued to such units who are unable to ensure that groundwater

will be duly recharged by them after used.

In the case of Nand Kumar v Govt. NCT of Delhi47, NGT while hearing a matter on illegal

extraction of groundwater for commercial purpose in a locality of Delhi, directed the Delhi Jal

Board to immediately seal those bore wells which were used for extracting water. The Tribunal

further directed Jal Board to recover compensation from the ones who were indulged in operating

illegal bore wells.

NGT in a recent case directed that extracting groundwater for commercial purpose without having

a NOC and not following safeguards to be discontinued48. NGT in case of Mahesh Chandra Saxena

Vs Central Pollution Control Board & Others49 gave order dated 31 May 2019 that groundwater

recharge by Jal Board and DDA with rainwater harvesting structures is not constructed on

scientific manner and to a great extend causing groundwater contamination. NGT directed the

Central Pollution Control Board and Delhi Pollution Control Committee to jointly conduct study

to take samples and submit the report to the tribunal within 1 month.

In another important order, National Green Tribunal in its order dated 31 July 201950 in Bain

Attrain Village Case of State of Himachal Pradesh, relating to illegal operation of Ispat factory in

Kangra district Himachal Pradesh held that the factory was polluting groundwater with discharge

of fine iron particles into water bodies and hence directed the Pollution Control Board of the State

to look into the matter and take appropriate action.

Further in a recent order dated 11 September 2019, National green Tribunal in case of Shailesh

Singh Vs Hotel Regency51, directed the constitution of a committee to look into the functioning of

Central Groundwater Authority and look into the steps necessary for preventing Groundwater

depletion. Further, the Committee is directed to take steps to ensure that groundwater is not

illegally extracted.

The National Green Tribunal in another order dated July 9, 201952 asked CPCB and EPPCB

Boards of State of Uttarakhand to take action against two industries for discharging untreated and

47 National Green Tribunal, Order dated 06/05/2020, INDIAN ENVIRONMENTAL PORTAL (Jul 29, 2020, 10 AM)

http://www.indiaenvironmentportal.org.in/content/467503/order-of-the-national-green-tribunal-regarding-illegal-

borewells-operating-in-mayapuri-delhi-for-commercial-purposes-06052020/. 48 National Green Tribunal, Order dated 3/01/2020, LIVE LAW PORTAL (Jul 29, 2020, 10 PM)

https://www.livelaw.in/environment/ngt-directs-discontinuation-of-groundwater-extraction-by-two-carpet-

manufacturing-units-in-rewari-151443. 49 National Green Tribunal, Order dated 31/05/2019, INDIAN ENVIRONMENTAL PORTAL (Oct 24, 2019, 02:33 AM)

http://www.indiaenvironmentportal.org.in/files/file/groundwater-recharge-contamination-NGT-order.pdf9. 50 National Green Tribunal order dated 31 July 2019, INDIAN ENVIRONMENTAL PORTAL (Oct 24, 2019, 02:56 AM)

http://www.indiaenvironmentportal.org.in/content/465312/order-of-the-national-green-tribunal-regarding-ms-id-

sood-ispat-factory-being-illegally-operated-at-kandrori-district-kangra-himachal-pr9. 51 National Green Tribunal order dated 11 September 2019, INDIAN ENVIRONMENTAL PORTAL (Oct 25, 2019, 01:11

AM) http://www.indiaenvironmentportal.org.in/content/465609/order-of-the-national-green-tribunal-regarding-

falling-groundwater-level-in-the-country-11092019/. 52 National Green Tribunal order dated July 9 2019, DOWN TO EARTH (Oct 25, 2019, 12:14AM

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http://www.indiaenvironmentportal.org.in/content/order-national-green-tribunal-regarding-pollution-caused-esipl-sidcul-industrial-area

http://www.indiaenvironmentportal.org.in/content/467503/order-of-the-national-green-tribunal-regarding-illegal-

http://www.livelaw.in/environment/ngt-directs-discontinuation-of-groundwater-extraction-by-two-carpet-

http://www.livelaw.in/environment/ngt-directs-discontinuation-of-groundwater-extraction-by-two-carpet-

http://www.indiaenvironmentportal.org.in/files/file/groundwater-recharge-contamination-NGT-order.pdf9

http://www.indiaenvironmentportal.org.in/content/465312/order-of-the-national-green-tribunal-regarding-ms-id-

http://www.indiaenvironmentportal.org.in/content/465609/order-of-the-national-green-tribunal-regarding-



hazardous chemicals in open drains as it was resulting into ground water pollution and soil

degradation in the agricultural fields. The Boards were also ordered to fine the industries with 1

crore.

viii. Limitations in The Legal Framework Regulating Groundwater Management

Water crises have a negative impact on the economy as well as on the environment of our country.

Despite of plethora of decisions and legislations, India is facing groundwater crises. The decline

of groundwater levels, contamination of water sources and increased consumption are some big

problems. Existing rules are outdated and have failed to address the issues of groundwater

depletion and contamination. Some of the existing limitations to legal frameworks are discussed

below:

Groundwater Right under Section 7g of the Indian Easement Act 1882

The right under the Easement Act provides every landowner right to collect and dispose of

groundwater within limits of his land owned is discriminatory and is not suited in present times.

This rule has proved to be discriminatory for landless people as they do not have access to

groundwater mostly. On the other hand, there are instances of landowners overexploiting the

groundwater resources and using it for commercial purposes. According to a survey by National

Land Reforms 201353 almost 30% houses have no land and other 20% have less than 1-hectare

land. Thus, this shows access of water resources are at hands of big landlords.

Groundwater Model Bill 2005

Firstly, the Bill failed to address the main problem that was to limit exploitation at appropriate

level. The Bill only talks about the restriction which is to be imposed on sinking new wells but no

restriction is put on existing wells. The bill allowed the landowners to exploit and extract

groundwater as much as they require and at the same time sell it to nearby farmers

illegally.54Secondly, the Model Bill failed to classify and explain the commercial and non-

commercial uses of groundwater. It has failed to break the relation between ownership and water

extraction and further the Bill doesn't spoke about environmental concerns. Thirdly, the Model

Bill provided for registration of existing groundwater sources and thus extended government

control over the groundwater resources. But it was a failed model as it failed to provide a solution

to the overuse of groundwater. At the same time, the Bill did not lie any provisions for increasing

groundwater contamination.

Groundwater Model Bill 2011

Groundwater Model Bill 2011 was to replace and brings about certain changes in the existing legal

framework but the new Model Bill 2005 was inadequate and failed to address the issue of

https://www.downtoearth.org.in/news/environment/court-digest-major-environment-hearings-of-the-week-july-8- 12--

65620. 53 Draft National Land reforms 2013, LANDSEA (Oct 25, 2019, 12:45 AM) https://www.landesa.org/press-and-

media/indias-new-land-reform-policy/. 54 Planning Commission Report (Oct 25, 2019, 02:13 AM)

http://planningcommission.gov.in/mta/11th_mta/chapterwise/water.pdf.

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http://www.landesa.org/press-and-

http://www.landesa.org/press-and-

http://planningcommission.gov.in/mta/11th_mta/chapterwise/water.pdf



groundwater crises. The Bill has failed to incorporate a provision to centralized water management

in India or overcome the centre-state relation. The Bill also failed to address the necessity of

community participation and address the bottom-up approach. The Bill highlighted provisions in

the top-down approach and failed to recognize Gram Sabhas and Panchayat in water management.

Further, the draft Bill provides for aquifer level management, which is not possible for practical

implementation as the States are not well equipped with the knowledge of adequate aquifer levels.

Lastly, too many bodies/authorities have been involved, and powers have been delegated to them

for groundwater management, but this could result in undesirable Red Tapism.

Groundwater Sustainable and Management Bill 2016

The new draft rules informed that area officers i.e. District Magistrates have power to grant No

Objection Certificate in event of use and extraction of water was above 20 to 50 cubic per day to

industries. If the limits exceed, the matter will be dealt with by State Groundwater Board and

Central Groundwater Authority (CGWA). Earlier power was in the hands of CGWA and this is

major shortcoming of the present rule as the District Magistrates are administrative officers and

they might not be well equipped with environmental problems. Giving the power to grant NOC's

can be misused by them at the same time.

Earlier Rules provided that the industries or project proponents extracting groundwater were to

recharge the groundwater sources. But the present Bill had removed this clause and, in its place,

has introduced the concept of conservation fees. Now they are required to pay fee depending upon

the amount of extraction. This is not good provision as this will further lead to exploitation as the

one who pays more, extracts more. The government has moreover apportioned with the required

clause of reuse and recycle of extracted water. No limit of using groundwater is notified in the

present rules.

ix. Reference To Some International Developments

Oman’s successful strategy for sustainable groundwater management

Groundwater is the focal water resource inside the country and its organization is fundamental to

the nation's economy and thus demands improvement just as those of other resources. Oman is by

and by progressively dependent on non-customary water sources, for example, desalination and

treated waste water (TWW) to fill the gap among supply and Oman has taken measures55 like

obligatory registration of all wells, the introduction of well permits, prohibition of wells at less

than 3.5 km from the mother-well of a 'falaj', filling up of illegally constructed wells, confiscation

of drilling contractor's equipment involved in illegal drilling, a national well inventory, well-

metering, well-field protection zoning, water treatment, leakage control, improving irrigation

techniques and public awareness campaigns for water conservation. On the other hand, Oman has

adopted the strategies of both flood control and groundwater recharge. Treated waste water is

supplied instead of groundwater in Muscat area for watering parks, roads etc.

55 Groundwater use and policies in Oman, GWMIWMI (Oct 25, 2019, 02:45 AM) http://gw-miwmi.org/wp-

content/uploads/sites/3/2017/04/Rep.14-Groundwater-use-and-policies-in-Oman.pdf9.

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Water Reforms of Mexico

By the Act Nation’s Water’s 1992, Mexico has declared groundwater to be the government

property or national property. Now the users are required to legitimize their rights through

procuring water concessions. The Act provides for setting up of a National Water Commission to

monitor and look after water concessions granted and to collect volumetric fees.

Water Reforms of US

With respect to water rights, federal government reserves the right as per Federal Reserved Water

Rights Doctrine. As per this doctrine, when the Government acquires certain land for fulfilling a

particular objective (such as reservation for the national monument), then the Government reserves

the right to water to accomplish the undertaken objective. The doctrine was established by the US

Supreme Court in the famous case of Winters v United States, and the same doctrine has been

extended to surface water too. For groundwater monitoring, US Geological Survey Agency is

responsible. The Agency has developed groundwater models and other software tools for

monitoring groundwater levels in aquifers. The Agency is also responsible in providing both short-

and long-term forecasts about changing groundwater level56. Artificial Recharge is carried out in

Las Vegas. It is a part of the groundwater management program of the US. Recharge takes place

between the month of October and May. The amount of treated water from the Colorado River is

injected into groundwater basin and thus due to recharge, groundwater levels in Las Vegas are

quite stable57.

Aquifer Classification system adopted by Canada

To support the management of groundwater, British Columbia has developed a system of aquifer

classification system. In this system, the aquifers are classified according to their vulnerability and

contamination and are also ranked according to use of water. The system has identified near about

157 aquifers, out of which 10 has been identified as highly contaminated and vulnerable.58

Lesson Learnt:

Mexico's reformed water law which regarded groundwater as a national property. India can too

switch to this and declare groundwater as a national property instead of declaring State as a trustee

as this will be effective in combating groundwater crises. Further, the strategy adopted by Oman

of deftly combining demand side measures to control, protect and conserve water resources with

supply side measures to augment the resources has the potential for successful replication in India.

Artificial Recharge system adopted by the US by treating river water and then adding it into

groundwater basin can also be successfully adopted by India.

x. Conclusion And Suggestions

56 Peter Folger, The Federal Role in Groundwater Supply: Overview and Legislation in the 115th Congress,

CONGRESSIONAL RESEARCH SERVICE (Jul 29, 2020, 11 PM) https://fas.org/sgp/crs/misc/R45259.pdf. 57 Id, at 42. 58 Simon Cheval king, Ideas for Groundwater Management, IUCN (Jul 28, 2020, 12 AM)

https://www.gwp.org/globalassets/global/toolbox/references/ideas-for-groundwater-management-metametaiucn-

2008.pdf.

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Keeping in view the growing problem of groundwater contamination and groundwater scarcity, it

can be rightly argued that there is a need for development and change in the policies. The scarcity

of groundwater resources has to a large extent, threatened food security as well as environmental

issues. The availability of drilling technology and other scientific methods have led to an increase

in groundwater extraction and its exploitation. Since groundwater is commonly accessible to all,

people are extracting as much they can and when they fail to extract or when the groundwater level

falls down, high powerful motors are installed and in turn people end up investing huge amount of

money. Recent example of acute groundwater crises was witnessed in Bangalore in June

2019.Thus, the water crises in our country needs holistic and widely resonant solution, specially

groundwater is in badly need of reform in modern times. In order to achieve systematic and

improved efficiency there is need for combination of instruments and incentives like legislations

and policies. Thus, looking at the current scenario, the following steps can be taken to minimize

groundwater exploitation and better groundwater management. Some of them are discussed below:

Policy and legal framework changes: Groundwater extraction is linked with ownership

rights as per the provisions of Indian Easement Act and groundwater is till date considered

as a private property. Thus, there is a need for change in status of groundwater from being

a private property and groundwater should be declared as national property to limit its

overexploitation. Further legislation should be adopted at national level to declare the areas

under acute water scarcity and the one's involved in over exploitation of groundwater for

either domestic or commercial purpose should be compelled to curb their extraction.

Imposing hefty fines would not lessen the problem as the one's paying more will extract

more. Thus, when a declaration is made for curbing the extraction, people will be hurt

economically; for instance, when a farmer is asked to cut down on certain irrigation areas

or switched to some new cropping practices, they will suffer from economic crises, and

thus, it would compel them to use water justifiably. Some other supplementary measures

can be adopted like steps that should be taken for groundwater management by enhancing

all stakeholders' participation, especially the users at the bottom level (for example: local

communities) and delegating responsibilities in a hierarchal manner. The government

should create public awareness and giving subsidized power supply for irrigation purposes

to farmers in rural areas should be avoided except for those who are socially and

economically backward and small landless farmers should also be exempted. Currently,

water is a state subject. To enhance better water resources management, water can be

placed under concurrent subject by way of amendment so that both the union and the state

government can take appropriate measures.

Technical Measures: The Focus should be on renovating the traditional water structures.

Advanced technology like remote sensing and geographical information system, can be

employed for groundwater management. The use of these highly specialized tools and

technology can make groundwater management more efficient and systematic.

Electricity Pricing and Supply in rural areas: Water markets are a reality these days.

Instances can be found in the State of Gujarat where landowners who own their own wells

usually extract water by installing high powered motors and selling the waters in nearby

areas to those who have no access to water, making a huge profit out of it. This calls for

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increasing the electricity price and thus, when the tariff rate is high, then owners will extract

less water.

Community Participation: Community participation should be encouraged at large. The

government should take initiatives to make people aware of the acute crises and what can

be done to combat it. Moreover, incentives can motivate further participation, like awards

or puraskars may be given to the community or village where the groundwater is managed

properly.

76



Everyday Challenges and Overall Social Impact of the Bede Community: In a

Quest for Equality in The Society of Bangladesh

Tamanna Tabassum Kabir1

Abstract

Though the origin of ‘River Gypsies or Bedes’ traces back to the ethnic group of Arakan but

they have been an integral part of Bengali culture for more than 350 years. Even then, the

community did not obtain the constitutional recognition from the People’s Republic of

Bangladesh that contributed towards deprivation of all those basic rights that an ordinary

national would have been entitled to. Years of marginalization and deprivation have caused

Bede’s heritage on the horizon of extinction by transforming their traditional livelihood to

modernism, resulting in the loss of cultural diversity in the country. Part III of the Bangladesh

Constitution enumerates the inclusion of special provisions that will promote and improve the

condition of the backward section community. Further, the provisions of international

instruments enshrine similar perspectives along with other basic, necessity rights; however,

these will only be ornamental if no suitable measures are adopted from the government’s side.

Interestingly, the government has depicted some appreciable strategies recently to bestow

protection, prevention, and enhancement of marginalized communities by drafting the Anti-

Discrimination Act, where these communities would be settled in the mainland to mitigate

those inequalities they face every day, but unfortunately, the outcome still has not been

satisfactory. Thereby, this research study proposes and analyses the following factors which

caused years of suffering along with the extent to which it persuaded the upcoming extinction

of culture and further focusing on how the state and the mainstream society are willing to

revive their cultural heritage with some recommended proposals.

Key Words: River Gypsies, Marginalization, Deprivation, Non-discrimination, Cultural

Heritage.


I. Introduction

The evolution of human civilization commenced from the settlement of river areas which assisted

in flourishing the development of human beings throughout history. Reflecting upon the culture

of Bangladesh, civilization began in the same way and the country can be referred to as the riverine

country because about 700 rivers (including tributaries) flow over the heart of Bangladesh. This

became an earning source of livelihood for many people and from where the journey of ‘River

Gypsies’ began, local people summoning them as ‘Bede or Bedey’. About a million of Bedes are

living in various districts of the country currently.

The River gypsy, also known as ‘Water Gypsy’ or ‘Nomadic People’, have been contemplated as

one of the most marginalized and ethnic groups or nomadic communities in Bangladesh. Yet, the

Bedes have not been enlisted as an ethnic group in the census of Bangladesh Bureau of Statistics

(BBS), Ministry of Planning, and the Government of the People’s Republic of Bangladesh.2 As a

consequence, this persuaded the dispossession of basic human rights ranging from right to food,

shelter, education, medical care, water, and even proper sanitation. Even the rates of poverty, child

1 Tamanna Tabassum Kabir, LL.B. (Hons), Department of Law and Justice, Metropolitan University, Sylhet,

Bangladesh 2 Carmen Brandt, The 'Bedes' Of Bengal: Establishing An Ethnic Group Through Portrayals, 330 (2015).

77



marriage, lack of job opportunity, lack of consciousness about family planning and lack of

education are relatively high among them. Many research studies have demonstrated that 90%

have no shelter, 90% are non-voters until 2008,3 95% drink dirty water from rivers with extremely

poor health and family condition,4 more than 90% of the mare illiterate while 96% of Bede children

have never received any schooling, and the overall poverty rate is a shocking 98%.5

Apparently, the Constitution of Bangladesh emphasizes the need for cultural identification with

provisions for basic necessities, rural development and right to education under Part II. Moreover,

Part III reflects that no person shall be subjected to any kind of discrimination and if necessary,

special privilege will also be granted to the underprivileged people of the community (Art. 27 &

28). Despite being an essential part of Bengali heritage, no constitutional recognition has been

granted to them and unusual lifestyle and traditional cultural practices of the Bedes have made

their relationships with ordinary people difficult.

Though being domiciles of Bangladesh, the lack of official recognition from the government has

pushed their community into an uncertain future, dismantling all such constitutional rights which

every citizen of a nation deserves. The struggle of surviving with a high rate of illiteracy and

poverty has forced them to relocate from traditional livelihood to conventional professions and if

this continues, then it may extinct the cultural diversity the community adds to the country.

II. Objectives & Methodology

This research paper will reveal the gravity of social discrimination and racism experienced by the

Bede community through critical evaluation of remedial measures existing in both national and

international legislation with relevant case laws; further, exhibiting how it degrades the social

image about them in the mainstream community. In addition, the research paper aims to highlight

and identify the factors which foster discrimination and deprivation of rights towards the Bede

community; to analyse the depth of deprivation, discrimination, and exclusion of the Bede

community and to determine whether any legal remedy is available towards the protection of their

human rights. Moreover, it attempts to recommend strategic policies for improving the security,

condition, and ensuring the rights of the marginalized Bede community and to assist future

researchers to understand the community for further research.

In order to achieve the above mentioned research objectives, the present background elaborates on

how the journey of the Bede community began with the deprivation of the following entitled basic

rights and highlights those factors of social stigma still prevalent today. Moreover, the comparison

has been made with the existing laws and regulations of Bangladesh along with the international

instruments and relevant case laws and principles that have been depicted. To improvise and

analyse the research study, information from secondary data has been accumulated from different

published and unpublished materials, books, journals, articles, case laws, newspapers, and

3 A.K.M. Maksud Imtiaj Rasul, Background And Justification, The Nomadic Bede Community And Their Mobile

School Program, 2 (2006), https://Keithlyons.Me/Wp-Content/Uploads/2010/12/Bede_School.Pdf. 4 Mohammad Sujoun Lasker, Liza Mithila Dio, Mohammad Hasan Chowdhury, Md. Sajjat Hossain, Md. Nurul

Islam & Md. Jayed Chowdhury, Lifestyle Of The Nomadic River Gypsies And Their Threat Narrative: A Tale Of

Two Villages In Bangladesh, 165 (2019). 5 Philip Gain, The Story Of A Floating People, A Nomadic Existence, THE DAILY STAR, Jan. 25, 2019,

https://Www.Thedailystar.Net/Star-Weekend/Spotlight/News/Water-Land-1692571.

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websites.

III. Terminology

Derived from the Greek origin, the term, ‘Gypsy or Bede’ also referred to as 'Nomades', means a

group within a race of people who are traveling to various places and have the least interest to

settle down over any land permanently.6 During Mughal period, the Manta people were used to

call ‘Bedey or Bede’ after the Bangla word ‘Baidda’ which meant the village doctor or healer of

the village. But instead, they tried to defend their Arab background on the basis of resemblance

between the words of ‘Bede’ and ‘Bedouin’ as the term was offensive to their community.7

Ethnically, they belong to Mong-tong (Mangta) ethnic group of Arakan, Myanmar, migrating to

Bangladesh in the 1630s, accompanied by the fugitive king of Arakan, Ballal Raja, and settled in

Bikrampur area near Dhaka; latter dispersed out to remote areas of Bengal and Assam.8

The Bedes are culturally distinct from the main Bengali group and they have their own language

called Thet or Ther9. Apart from this, their culture has been mentioned numerous times by many

famous Bengali novelists in Bengali Literature, exhibiting how their culture is parallel to Bengalis,

such as Sarat Chandra Chattopadhyay’s famous short story titled ‘Bilashi’ portraying the life of a

snake-charmer’s daughter and her husband. Famous national poet Jasimuddin also composed a

beautiful poem titled “Babu Selam Bare Bar”, had drawn up the character and lifestyle of a Bede

woman.10 This evolved the notion of Bedein Bengali language, as a group of people or a caste that

make their livelihood by capturing snakes and entertaining people by making the snakes dance

with the tune of their flutes, providing traditional and spiritual healing services, performing magic

and monkey shows and selling of bangles and trinkets.11 Thus, it is evident to state that they have

been a part of Bengali heritage for a long time.

IV. Background of Bedes:

a. Geographical Placement

Bedes are located mainly, more or less, in nearly all Dhaka division districts. But that they are also

dispersed in other districts as well as in the division of Chittagong in Brahmanbaria, Comilla,

Chandpur, Noakhali and Chittagong, in the division of Sylhet in Sunamganj, Moulavibazar and

Habiganj; in the division of Rajshahi in Rangpur, Dinajpur, Bogra, Rajshahi and Pabna, as well as

of Khulna in Jessore, Kushtia, Chuadanga, Narail, Khulna, Bagerhat and in the division of Barisal

in Patuakhali and Barisal.12

6 Cambridge Dictionary, https://Dictionary.Cambridge.Org/Dictionary/English/Nomad. 7 Brandt, supra. 8 Bedey, Banglapedia (Feb. 25, 2015) http://En.Banglapedia.Org/Index.Php?Title=Bedey. 9 Derek S. Johnson, Tim G. Acott, Natasha Stacey & Julie Urquhart, Social Well Being and The Values Of Small-

Scale Fisheries, 202 (2018). 10 Sariful Islam, Dissecting the Nomadic Lifestyle Of ‘Bede’ Community, DAILY SUN, Mar. 30, 2018,

https://www.Daily-Sun.Com/Magazine/Details/298572/Dissecting-The-Nomadic-Lifestyle-Of-

%E2%80%98Bede%E2%80%99-Community/2018-03-30. 11 Hereinafter. 12 Md. Noman Amin, Geographic Location, An Impact Assessment Of The Trend Of The Life Patterns Of Nomadic

Bede Community In South-Western Part Of Bangladesh: A Sociological Analysis, 13,

https://Www.Academia.Edu/26927457/An_Impact_Assessment_Of_The_Trend_Of_The_Life_Patterns_Of_Nomad

ic_Bede_Community_In_South-Western_Part_Of_Bangladesh_A_Sociological_Analysis.

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http://en.banglapedia.org/Index.Php?Title=Bedey

http://www.daily-sun.com/Magazine/Details/298572/Dissecting-The-Nomadic-Lifestyle-Of-

http://www.daily-sun.com/Magazine/Details/298572/Dissecting-The-Nomadic-Lifestyle-Of-



b. Language

Bedes have their own language similar to the Arakanese language called 'Thet or Ther,' derived

from Prakrit, a Middle Indo-Aryan language formed from Sanskrit but distinct from it as the

common people's spoken language.13While they typically speak within the community in their

local language, they can also speak fluently in Bangla.

c. Religion

The entire community population consists of both Muslims and Hindus, but some of them perform

many rites and rituals and worship the Manasa (snakes’ goddess).14

d. Dress Code

Culturally, Bede men typically wear lungi and for women, they cut a ten-cubit long fabric into two

pieces and wear one piece at the bottom of the body wrapping it in two folds around the waist and

hanging the other piece like a scarf around the back. They wear fatua or angi (without collar, loose

shirt). Their dress code has changed now, while trying to integrate with the modern culture.15

e. Social Stigma

Throughout Bangladesh's mainstream culture, the Bede community has always been seen as the

lowest class of people and viewed as untouchable citizens. As a result, they do not get the chance

to work as workers in separate families and are instead expatriated from the economy's informal

sector.

f. Profession

Bedes claim to master the art of curing and catching snake and snake-charming, as a means of

earnings. They also possess hunting skills. The career of Bedes, once highly regarded in the

Bengali community, was respected as traditional snake bite doctors and spiritual healers in rural

areas. Nevertheless, the advancement of medical science and technology has forced them to move

to a more sustainable future, away from their earlier followed unconventional professions.

g. Marriage and Family system

Bedes have the custom of traveling from one village to another village for trade during the

harvesting season, which they call ‘Gawal’. Upon finishing off Gawal, families engage, for their

young sons and daughters around the age of 15 and 12-13, respectively, to participate in marriages,

where they select their spouses, if they have any, without registration of marriage and the custom

of giving TK. 40,000 (US $471) in marriage as mohrana (dower).16 During the marriage season,

they stay in any permanent place for a temporary period of two months to conduct their social

functions. As part of the marriage ceremony, their tradition specifies that the husbands will live

indefinitely in the wife's home, and the wife takes the vow to take care of her husband and children,

and must also be the provider of income. One Bede family is usually composed of 4-8 members

living in a single boat. If any outsider wishes to marry a female Bede, then such person is expected

13 Prakrit, Banglapedia (May 5, 2014) Http://En.Banglapedia.Org/Index.Php?Title=Prakrit. 14 Supravat Halder, Social Structure, Bedey Community Of Bangladesh: A Socio-Legal Study, 78 (2012),

https://Www.Researchgate.Net/Publication/269491264_Bedey_Community_In_Bangladesh_A_Socio-Legal_Study. 15Supra at 8. 16 Sultana Parven, Women Empowerment Of Manta Village In Darkness, THE DAILY NEW NATION, May 25, 2018,

Http://M.Thedailynewnation.Com/News/175807/Women-Empowerment-Of-Manta-Village-In-Darkness.

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http://en.banglapedia.org/Index.Php?Title=Prakrit

http://m.thedailynewnation.com/News/175807/Women-Empowerment-Of-Manta-Village-In-Darkness



to pay a fine to the community before marriage and if he gets permission then only he can marry

her. Research study has shown that about 20% of marriages occur between a Bede and an outsider.

Interestingly, widow women are permitted to remarry and for divorcee, husband and wife will

share their property and children between them, however, the husband might even get the larger

portion of property, if it is necessary, showing the essence of male domination, as is in the

prevailing society, but it is rare to have divorce practice in their group because they are not willing

to practice such.17

h. Adapting to Natural Disaster

As there is no permanent shelter, it is incredibly difficult for the Bedes to deal with natural disasters

and calamities because they live in boats with full occupation.

i. Water and Sanitation

The biggest challenge the Bede community has to face is not having clean drinking water and

sanitation standards. Those who work on a boat will defecate and urinate in the water of the river

and they use the same water for the purposes of drinking, cooking and washing. As a consequence,

dangerous health problems can arise for people living in the Bede community. This activity of 0.5

million Bede people massively and unrestrictedly pollutes Bangladesh's climate and thus, affects

the living conditions for local people residing on nearby lands. The excreta that this group is

depositing in the open environment are approximately equal to 250 metric tons per

day.18Therefore, the Bangladeshi government should look immediately into this dire situation

faced by both the Bede society and resident local citizens.

V. Critical Evaluation of National & International Legal Perspective

Democracy is not the law of the majority but the protection of the minority,19 for which every

marginalized community or backward section of the society is entitled to certain legal remedial

measures to be free from human rights infringement, ethnic inequality and racial abuse. This

responsibility not only lies with the State concerned, but also, it is the responsibility of the global

community to enforce an international legal framework for its recognition, rights and

responsibilities and where Member States would have to ratify their domestic laws for proper

enforcement.

Having regard to the provisions of the Universal Declaration of Human Rights (UDHR), 1948,

Art. 25 guarantees the right to an adequate standard of living for the health and well-being of

individual families, including food, clothing, accommodation, medical care and other needed

social services, parallel to Art. 15, Part II of the Constitution of Bangladesh. Yet Bede people have

17 Md. Noman Amin, Marriage System And Family, An Impact Assessment Of The Trend Of The Life Patterns Of

Nomadic Bede Community In South-Western Part Of Bangladesh: A Sociological Analysis, 14,


ic_Bede_Community_In_South-Western_Part_Of_Bangladesh_A_Sociological_Analysis. 18 Md. Noman Amin, Water And Sanitation, An Impact Assessment Of The Trend Of The Life Patterns Of Nomadic

Bede Community In South-Western Part Of Bangladesh: A Sociological Analysis, 20,


ic_Bede_Community_In_South-Western_Part_Of_Bangladesh_A_Sociological_Analysis. 19 Women’s International League For Peace & Freedom, Minorities’ Rights In France: Many Challenges Yet To Be

Addressed, Https://Www.Wilpf.Org/Minorities-Rights-In-France-Many-Challenges-Yet-To-Be-Addressed/.

81



never received any government medical care, and the majority of children have never been

vaccinated at all. Also, they are deprived of old age pension, disability allowance, flood relief or

some form of governmental family support schemes or health related facilities.

Art. 26 of the Declaration and Art. 13 of the International Covenant on Economic, Social and

Cultural Rights (ICESCR), 1966, emphasize that everybody has the right to free education, at least

at the basic and fundamental level, because education is oriented towards the full development of

the human personality and towards greater respect for human rights and fundamental freedoms.

Similar provision is also present under Art. 17 of the Constitution. While understanding the

importance of education, 96 per cent of children have not received any primary schooling, mainly

because of their nomadic and poor lifestyle or even if the community enrol sits children in school,

they are removed from school by the concerned authority. But no policy has been formulated by

the government to provide them with their fundamental right to education as well as protect their

cultural rights.

The ICESCR further recognizes the freedom to freely participate in the cultural life of the

community.20 Correspondingly, the provisions of International Covenant on Civil and Political

Rights (ICCPR), 1966, consider the freedom to perform and enjoy their own culture, to profess

and practice their own religion, or to use their own language21 and thereby, signifies the importance

of cultural rights and their relevance among minorities. Even the Constitution provides22safeguards

for fostering culture tribes, minor races, ethnic sects and communities by taking proper steps

towards their development but no such constitutional recognition has been granted to the Bede

community specifically, unlike other communities in similar positions as them. It already

differentiates their rights from the rights of ordinary Bangladeshi nationals. Until 2008, Bede

citizens were not even allowed to enrol as voters, however, they were granted the right soon after

but the number of voters remains relatively small today, along with the deprivation of all those

rights and facilities that any ordinary Bangladeshi citizen already enjoys. Regarding this matter,

the Kerala High Court held in A M Patroni v Kesavan23 case that in any community, religious or

language, which has numerically less than 50 per cent of the population of the State is entitled to

constitutional protection similar to ordinary citizens.

On the other hand, the International Convention on the Elimination of All Forms of Racial

Discrimination (CERD), 1965, solemnly affirms the need to urgently eradicate all types and

manifestations of racial discrimination in the world and to ensure awareness and respect for the

dignity of the human being. In relation to this Convention, the UN Committee gave its decision in

the cases of L. R. et al. v Slovakia24 & Hajrizi Dzemajl et al. v. Yugoslavia,25 where the state bears

an obligation to not promote any racial discrimination even by any act of municipal body otherwise

20 Universal Declaration of Human Rights, 1948 (UDHR), art. 27. 21 International Covenant on Civil and Political Rights, 1966 (ICCPR), art. 27. 22 BANGLADESH CONST., art. 23A. 23 Dr. Manmohan Singh, Vishwanath Pratap Singh, Inder Kumer Gujral, Ram Vilas Paswan, A.S. Nakadar & A.R.

Antulay, Dalit And Minority Empowerment, 177 (1st Ed. 2008). 24 UN Committee On The Elimination Of Discrimination Against Women, Jurisdiction, Communication No.

31/2003, U.N. Doc. CERD/C/66/D/31/2003 (March 7, 2005),

Http://Www1.Umn.Edu/Humanrts/Country/Decisions/31-2003.Html. 25 Selected Decisions Of The Committee Against Torture, Case No. 161/1999, UN Doc. CAT/C/29/D/161/2000;

Convention Against Torture And Other Cruel, Inhuman Or Degrading Treatment Or Punishment, p. 78, (2008).

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http://www1.umn.edu/Humanrts/Country/Decisions/31-2003.Html



it would be attributed as the act of racial discrimination by the public authorities. Further, the state

is obliged to guarantee everyone the right to fair treatment before the law and therefore, the

Committee had decided that there was a failure of the State party's courts to provide an effective

remedy in the cases at hand. Correspondingly, the Supreme Law of Bangladesh does explicitly

highlight, under Part III of Fundamental Rights, equality before the law, equal legal rights and

non-discrimination against any citizen on grounds only of religion, race, class, caste or place of

birth.26Surprisingly, this section specifically states that this law applies only to 'citizens' while Bede

people have not been officially recognized as citizens even though they have long been residents

of Bangladesh.

Moreover, Art. 2(2) of ICESCR enumerates the right of non-discrimination as being set out in the

Convention regardless of any kind as regards colour, colour, sex, language, religion, political or

other opinion, national or social origin, land, birth or other status. Being mandated by the

Constitution and ICESCR, the Government of Bangladesh has neither set any major livelihood-

related policies for the Community such as health, nutrition, water, sanitation, land and education,

nor mechanisms for improving their access to these basic entitlements unlike that of other

Bangladeshi citizens. In case of delicate issue such as marriage, another major problem in the Bede

community, female children and adolescents aged between 11 to 15 years are given to marriage

early. Divorcee women usually do not get subsistence and maintenance allowances from their

husbands, as the tradition illustrates that men are not income providers, and also loses the right to

keep the child from the marriage with herself.27Despite the presence of legal boundary under the

Child Marriage Restraint Act, 2017,Bede people have no knowledge about the consequences of

child marriage as the rate of illiteracy is high within them, whereas as per law, it is strictly

forbidden to conduct child marriage in Bangladesh and may result to 2 years of jail with fine for

ordinary citizens.

According to Dr. Jennings, “Equality before the law means that equality among

equals the law should be equal for all. And should be equally administered, that like

should treated alike. The right to sue and be sued, to prosecute and prosecuted for

the same kind of action should be same for all citizens of full age and understanding

without distinctions of race, religion, wealth, social status or political influence.”

Therefore, to re-model the nation as a modern developed state, empowering marginalized

communities like the Bede should be considered as one of the top priorities for the government.

Apparently, Part III of the Constitution offers a special privilege to the backward section

community by the inclusion of special provision in favour of women or children or for the

advancement of any backward section of citizens. This unique provision will allow these people

to move forward from their status of being a marginalized community, either by reserving quotas

or dispensing with special facilities in terms of basic necessities, education, employment, etc. In

the case of Chapman v. The United Kingdom,28 the Council of Europe states that recognizing the

special needs of minorities and an obligation to protect their security, identity and lifestyle, not

26 CONST. BANGLADESH, art. 27 & 28. 27 Drs. Chandan Kumar Sarkara, Mustafizur Rahman & Swapan Kumar Saha, Marriage, The Vanishing People and

Vanishing Community- A Case Study In Bangladesh, 185,

Https://Gssrr.Org/Index.Php/Journalofbasicandapplied/Article/View/1214/1206. 28Application No. 27238/95 (2001), Https://Minorityrights.Org/Law-And-Legal-Cases/Chapman-V-Uk-2/.

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only for the purpose of safeguarding the interests of the minorities themselves but to preserve a

cultural diversity of value to the whole community.

This particular provision of the Constitution can thus be used as a shield to protect the country's

cultural diversity by giving the Bedes special opportunities and respecting their heritage. The

Bangladesh Law Commission, which recommended that the government should enact a law to

prevent discrimination against marginalized groups irrespective of religion, faith, class, ethnicity,

caste, tradition, culture, occupation, ethnic originality, gender (including transgender) sexual

orientation, disability, pregnancy, marital status, birth place, etc., initiated a wave of significant

concern after many years in 2014. As an outcome, the National Human Rights Commission

(NHRC) drafted the Elimination of Discrimination Act and requested the Government to enforce

this new legislation after three years.29 Currently, the legislation has not been enacted, however, it

has the potentiality to become a milestone movement towards the legal protection of marginalized

communities.

While numerous organizations of the United Nations and other non-governmental organizations

are actively working in the prevention of racism, they have never furthered the issue of the

protection of Nomads until recently in 2000,where the Committee on the Elimination of Racial

Discrimination adopted a recommendation urging States Parties (all CERD members) to take

action with firm political will and moral leadership to protect Nomads from racial violence and

enhance their living standards by formulating and enforcing realistic as well as theoretical national

strategies.30The non-binding effect of international instruments does not make it enforceable on

the member states, but they definitely have a moral duty to shape and accept suitable legislative

structure for their citizens, particularly those belonging to minority groups and disadvantaged

groups.

VI. Recommendations

After extensively studying the everyday challenges faced by the Bede community, their rich

culture and historical background and their current social and political condition in the country of

Bangladesh, barely closer to achieving their fundamental, human rights of equality and liberty on

an equal footing as other Bangladeshi citizens as they were at the beginning, the author has arrived

at certain recommendations to further their quest for equality and facilitate their socio-political

acceptance in society with legal backing, so that they finally get the respect and dignity they

deserve by the virtue of being an inalienable part of Bangladeshi culture and society. The first step

towards achieving this is ensuring their constitutional recognition so that the Bedes would have

the right to all the constitutional provisions just as any regular citizen does. Further, there is a need

for a new anti-discrimination legislation and regulations should be adopted to prevent violations

of human rights, discrimination and ethnic harassment and to ensure their successful

implementation. Similarly, the quota system reservation can be enforced at national level in terms

of health care, education, jobs and any other required opportunities. One of the most important

29 Muhammad Yeasin, NHRC Sends Draft To Govt, The Draft, Prepared As Per Law Commission

Recommendations, Proposes ‘Elimination Of Discrimination Courts’ In Every District, THE INDEPENDENT, April

21, 2018, Http://Www.Theindependentbd.Com/Post/146679. 30 Professor K. Shamsuddin Mahmood, WRITING FOR EQUALITY, Bede Community: The Victims Of

Urbanization, THE DAILY STAR, Jan. 29, 2019, Https://Www.Thedailystar.Net/Law-Our-Rights/News/Bede-

Community-The-Victims-Urbanisation-1694062.

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changes that needs to be brought about is ensuring their access to clean drinking water, sanitation,

and hygienic conditions because they use the same river water for defecate purposes. This is a

basic humanitarian right every human is entitled to avail, irrespective of political status, or a lack

of the same. Furthermore, there needs to be provision of some free medical facilities such as

vaccination, family health planning and other preliminary treatments for the community.

Moreover, dynamic steps need to be taken to suit their particular needs. Because of their regular

movement, a versatile education policy requirement should be established where they are required

to complete at least 10th grade schooling, receiving SSC certificate. All Bedes should be included

in the lists of electors so that they may contribute political participation from their side. Other

important changes which need to be brought up include the prevention of child marriages and

promoting female education, or even improving entrepreneurial skills as women are traditionally

regarded as the Bede group bread-earners. Issuing and registering birth certificates, marriage

certificates and all other certificates that a person needs to reside in a country is also an important

political step which needs to be taken to ensure their social integration and recognition in society.

Other steps which can be taken to further their interests include the provision of special finance

and micro-credit schemes by public and private commercial banks and financial institutions to

marginalized communities for their small start-up businesses. Extra budget may be included in the

annual budget to ensure sufficient health, food, education, etc., for disadvantaged communities

with appropriate allocation.

Lastly, there’s a need to review the existing policy frameworks of marginalized communities again

for further development, as well as addressing more openly the notion of prejudice and bigotry so

that social recognition and appreciation for the Bede community will develop in society at large.

VII. Conclusion

Being a disempowered community, it is distinct that Bedes are not uncommon to discrimination

and racism in almost every sphere of life as if it has become their everyday challenges. It has tipped

the community to the brink of extinction and disoriented the country's national identity and cultural

diversity even in this 21st century where democracy enumerates, “of the people, by the people, for

the people”. Desperate survival attempts, minimal facilities, unable to afford medical treatment,

lack of employment and high poverty levels have forced them to seek other genres of occupation

for sustainable income and future. There is non-participation of the Bedes in policy-making bodies

of local and state government as 90 percent of them are not identified as voters and this

demonstrates socio-cultural and political discrimination. While the Bede women are considered

economic providers, they are mostly dominated by men and have no part in the family's decision-

making process, or lose their right to education due to early marriages and, moreover, they are

viewed as women of immoral character by the mainstream society. In addition, the vulnerable

community currently faces tremendous risk of being infected with the Corona-virus (COVID 19)

crisis, and the government must undertake urgent actions in this regard. As a result, all of these

factors give rise to the possibility that hundred years of Bengali heritage and its interplay with the

Bede heritage may come to an end and there will be a period when the next generation would have

no knowledge of their life. Yet on the other side, in recent years, the Government of Bangladesh

has taken major steps to rebuild their community by settling them in the mainland and integrating

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them with the main society to reduce the challenges they face every day.

Nevertheless, in a country like Bangladesh where resources are scarce, it is difficult to serve and

provide all of those rights and facilities to the entire population, especially bearing in mind the

COVID-19 pandemic, as the political and administrative sectors are already in a vulnerable stage.

Yet, at the same time, the lawmakers and policy makers should provide legal and institutional

structures for the community's financial, economic, cultural, and political security. Further work

is therefore needed to expose and assess the real nature of discrimination, ethnic violence and

human rights abuses faced by disadvantaged communities such as Bede, so that they can enjoy

basic human rights and live with dignity in Bangladesh's mainstream society.

86



Epidemic Act & Disaster Management Act – A Pathway To Arbitrariness

And Vagueness

Anant Singh1

Abstract

The Epidemic Act and the Disaster Management Act governing the same grounds during the

COVID-19 situation has led to more chaotic outcomes than solving it. A situation such as the

COVID-19 does warrant for immediate and effective solutions but the same need to be lawful

and justified. Even though the two statutes were invoked together in order to handle the

spread of the virus in a timely manner yet it ended up giving absolute and unchecked powers

to the Government. The said article is not aimed towards criticising the actions of the

government but warrants for necessary amendments in the Disaster Management Act as well

as the Epidemic Act. The said statutes have acted as a shield for the government’s unplanned

and unreasonable actions during COVID-19, but now it’s time to decode the said statutes

again and make the necessary amendments so that the statutes fulfil their aims and objectives

while also be in harmony with the democratic features of our Constitution rather than having

an autocratic outcome and remove any possible arbitrariness and vagueness.

KEYWORDS: Disaster Management Act, Epidemic Act, COVID-19, Arbitrariness,

Vagueness.


I. Introduction

In the light of the recent outbreak of the COVID-19 it was observed that the Epidemic Diseases

Act, 1897 (hereinafter referred to as “EA”) and the Disaster Management Act, 2005 (hereinafter

referred to as “DMA”) were invoked firstly by a few states followed by a nation-wide invocation

of the same. The EA aims to prevent the spread of a dangerous epidemic disease by controlling its

transmission; identifying the infected people; giving them proper medical facilities and thereby

taking the utmost precautions in order to deter its spread. DMA on the other hand, aims to provide

an effective procedure for the management of disaster and other such situations. The feasibility of

the same has been paved by giving arbitrary and vague powers to the central and the state

governments.

The EA came into force on February 4, 1897, as a preventive measure for the plague epidemic in

Bombay. Even though the Act focuses upon a crucial objective yet it can’t be denied that the Act

was a failure 123 years back and has continued to show the same results due to its restricted

language, mischievously derived interpretation and absence of any essential amendments keeping

in mind the reformation of the surroundings. An Act, which itself was made in haste so as to

prevent the uncontrolled and sudden spread of the plague by the British Government, is being used

by the Government to handle a situation of such gravity itself depicts the myopic approach of the

present government. The DMA came into force on December 23, 2005, and aims to establish a

National Authority at the Centre along with other such State and UT authorities for effective

management of disasters. Till date, except for the COVID-19 scenario, the Act has only been

1 Anant Singh, Fifth Year B.B.A. LL.B., School of Law, Christ University, Bengaluru.

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invoked for purposes like Uttarakhand floods in 2013 and Orissa cyclone in 2019. For the very

first time, this law has been pressed into service on a pan-India basis.

Though the Acts were formulated to be invoked in cases of medical emergencies or any other

similar disastrous situation it has been observed in context to the recent outbreak of COVID-19,

the arbitrary use of power and the lack of implementation between the various states as well as the

Central government has led to a scenario where the objective behind the implementation of both

the Acts itself seems to be lost and contradicted. This poor implementation and absence of any

checks upon the power of the authorities has not just cost people their livelihood but also their

lives.

Sections 2, 2A2 are the main provisions of the EA which accord certain powers to the State and

Central Government, which being absolute and vague in nature refute the Preamble of the Act in

itself. Section 2 gives power to the State Government in situations such as epidemics where the

government can issue notices, formulate temporary regulations, perform inspections, and do any

other action as it seems necessary to prevent the said outbreak. The said regulation of notice can

apply to the entire state or a class of persons. Section 2A, on the other hand, gives powers to the

Central Government to inspect any port or vessel for the purposes of preventing the outbreak of

the epidemic.

Section 103 of DMA is one of the main provisions, which has been cited multiple times by the

government as a justification to its acts, lays down the measures that can/ should be taken by the

National Executive committee, Government, its Ministries or Departments in cases of disasters for

its proper management. Section 10 gives the powers to the National Executive Committee to

coordinate, monitor the disaster and prepare a plan for the preventive measures. It further gives

power to the committee to issue guidelines for the preparation of disaster management and further

provide technical assistance to the States in fighting the epidemic. The committee further has the

power to issues directions by monitoring the situation and preparedness for the disaster. The

committee even has a duty to promote education and awareness in relation to disaster management.

In order for the implementation of the Act to be aligned with its preamble certain amendments and

clarifications are required to be introduced within the ambit of the Act.

II. Aspects Needing Clarifications And Reformulation Under The EA And DMA

a. Government as a Duty Bearer

EA & DMA have been constructed in a manner such that it bestows upon the government certain

unrestricted powers thereby casting a liability upon the citizens to abide by the said power. It is

not debated that in cases of epidemic a central governing body is must and multiple governing

bodies would lead to further chaos but the ironical situation arises when the government in the

cloak of its power forgets the aspects that the people hold certain rights and it has to act as a duty

bearer for the same. The wording of the acts being very restrictive and government-centric,

nowhere casts a duty upon the government to make sure that people do not suffer at the hands of

the epidemic rather it obliges the governments with the power with an underlying assumption that

the same would be used in a prudent and unbiased manner.

2 The Epidemic Diseases Act, No. 3, Acts of Parliament, 1897, §§ 2 - 2A. 3 Disaster Management Act, No. 53, Acts of Parliament, 2005, § 10.

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The legislature while drafting EA & DMA completely brushed off the aspect of democracy and

social welfare. The governments while giving justifications for not amending the pre-

independence statute failed to consider an important point i.e., a country with a population of 138

crores and being the world’s strongest democracy cannot be merely controlled by way of applying

unchecked control upon them. The citizens need to be given certain justified rights and such control

should be administered only after laying down proper guidelines.

Indian staffing Federation in its report on “Impact of Key Reforms on Job Formalization and Indian

Flexi Staffing Industry, 2019”4 stated that India has almost 68% casual workforce i.e., people who

do not work on a contractual basis but a daily basis at places like construction places, malls,

sweeping staff, rickshaw pullers, fruit or vegetable vendors, cobblers, etc. Such people are living

on a hand to mouth basis. A 21-day lockdown declared with a four-hour notice was not just

inflicting inhumane conditions on them but also the stepping stone for a later chaos the effects of

which can be observed even after Lockdown 4. It is petrifying to imagine a situation when a person

is made to choose to die by an epidemic or by starvation as he won’t be able to earn his living for

many coming days. The Apex Court in the recent PIL filed by Alakh Alok Srivasta5 accepted the

contention of the petitioners that in a country like India, panic will destroy more lives than the

spread of COVID-19 virus itself and thereby directed the Central government to prevent any such

situation.

Such a decision could have been taken by the government with prior notice as though a lockdown

seemed important in the present scenario yet its poor implementation deprived people for their

right to life and livelihood as guaranteed under Article 21 of the Constitution of India. In the case

of Kharak Singh v. State of Uttar Pradesh6 the Apex court stated that Right to life does not merely

mean an animal existence but something more valuable and meaningful. Similar observations can

be seen in the case of Sunil Batra v. Delhi Administration7 where the court held that right to life

included many aspects like the right to live a healthy life, right to live, sleep in peace, etc. In the

case of Olga Tellis v. Bombay Municipal Corporation8the court pointed out the importance of

Right to livelihood and stated that, “An equally important facet of the right to life is the right to

livelihood because no person can live without the means of livelihood. The State may not by

affirmative action, be compelled to provide adequate means of livelihood or work to the citizens.

But any person who is deprived of his right to livelihood except according to just and fair procedure

established by law can challenge the deprivation as offending the right to life conferred in Article

21.” It has been concluded by way of many precedents that though a person can be deprived of his

rights under Article 21 the same can only be done by a procedure established by law and the same

has to just, fair and reasonable in the eyes of law.

Even though, COVID-19 being an emergency situation, the government cannot be expected to

grant all rights under Article 21 but an absolute deprivation of all rights would not just be blatant

4 Indian Staffing Federation, Impact of Key Reforms on Job Formalization and Indian Flexi Staffing Industry 2019,

(May 8, 2020) http://www.indianstaffingfederation.org/wp-content/uploads/2019/07/ISF-Report-2019-Impact-of-

reforms-on-Job-Formalisation.pdf. 5 Shri Alakh Alok Srivasta v. Union of India, W.P. (C.) No. 468/2020. 6 A.I.R. 1963 S.C. 1295. 7 A.I.R. 1978 S.C. 1675. 8 A.I.R. 1986 S.C. 180.

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but also unconstitutional as per the Constitution of India. The government rather than acting as an

autocrat, need to understand the implications of their decision on all sectors of society and not just

one particular group of people which is pertinent in the present case where the lockdown though

still comforting for the middle and higher class of the society was severe for the lowers class of

society. In order to make a lockdown effective the intimation for the same could have been given

a week prior to the same which would have helped the people to reach back to their home safely

having a sense of security amongst these harsh times.

Keeping in mind the principle of democracy, as stated by Abraham Lincoln “Democracy means

of the People, by the People, for the People”, the EA & DMA need to incorporate the aspect of the

duty of the government towards the citizens in letter and spirit and not just as a mere assumption

so has to act as a limiting factor upon their arbitrary use of powers.

b. Ambit of Power to be Restricted and Defined

During the period of lockdown, the Central Government along with other State Governments

issued various directives in its attempt to control the spread of the virus. Many of the directives,

though issued aiming at the betterment of the citizens, lacked any substantial backing and were

biased and discretionary thus making them vague and arbitrary.

c. Instructing Private Employers to Pay the Workers

The Ministry of Home Affairs vide Order dated 29th March 20209 stated that all the employers, be

it in the industry or in Shops and Commercial establishments, shall make full payment of wages

to its employees on the due date without any deduction. The government as a governing authority

cannot take decisions completely inclined towards one party without tendering a proper rationale

or justification for the same. Though the government had a positive intention i.e. the employee

whose only source of income is the salary needs the money for their survival. But the government

completely forgot the fact that all businesses do not have a big profit margin. In a scenario where

one of the biggest business houses like Airtel, Vodafone, Vedanta, PNB, etc. having been facing

severe losses,10 in such a case expecting the small business employers to pay the employee in full

when no income is being generated is merely illogical and suppression of a particular sector of

people. This itself serves as a violation of Article 14 of the Constitution of India which promises

an Indian citizen equality before law as well as equal protection before law, both of which are

violated by the Government order. Though Article 14 provides for some exceptions as laid down

in the Justice Tendolkar case11i.e., rationale nexus and intelligible differentia both of which have

not been complied in the present order. Writ Petition for quashing the said order of the central

government has already been filed in the Apex court, in which time has been provided to the

Central Government to file a reply.12

9 Ministry of Home Affairs, MHA Order restricting movement of migrants and strict enforcement of lockdown

measures, 1, 2, (2020),

https://www.mha.gov.in/sites/default/files/PR_MHAOrderrestrictingmovement_29032020.pdf. 10 Amit Mudgill, 7 worst ever quarterly losses in India Inc's history, ECONOMIC TIMES (Nov. 15, 2019, 10:38 AM)

https://economictimes.indiatimes.com/markets/stocks/news/7-worst-ever-quarterly-losses-in-india-incs-history/see-

red/slideshow/72066019.cms. 11 Shri Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar, AIR 538 SC 1958. 12 Ficus Pax Private Ltd v. Union of India, WP(C) No. 10983/2020.

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This further is a violation of Article 19(1)(g) of the Constitution of India as the employers, who

already are under the burden of huge debts owing to zero income are being forced to further pay

salaries or wages of their employees, thereby making them worse off and acting as a major

hindrance to conduct their business or carry on with their profession. Article 19(6) lays the

reasonable restrictions which can be imposed under Article 19(1)(g) but the said restrictions should

be ‘reasonable’. In the present case, the government has been misusing its powers under the

umbrella of the unlimited powers given u/s. 10 of the DMA and eventually justifying the same

under the head of maintaining public order. This is a blatant violation of Article 19(1)(g) as the

government has completely ignored the small businesses and has been continuously making their

livelihood difficult.

The same has been visible by the announcement made by the Finance Minister – Mrs. Nirmala

Sitharaman with respect to the Rs. 20 lakh crore package announced by the PM on 12th May,

2020.13 The government has been providing the benefits of the said packages to MSME’s and

NBFC but has completely forgotten the small and medium businesses. All the waivers haven been

either for the rich businesses and all the compensation is given to the poor, the small and medium

businesses are just made to cooperate and pay the wages of the employees on time, with a waiver

of a merely 12% on the PF of the employees along with a condition that the said employees should

be having a wage of less than Rs. 15,000. In a state where businesses are deep dug with debts and

they are relying on the government to provide them with help, a mandatory order to pay all the

worker their entire wages on due dates was the no less than the last nail in the coffin. The same

Order was withdrawn by the government via order dated 18th May, 2020.14 This itself has left a

negative remark against the government policy-making process as the said order was passed only

after the Apex court had asked the Central Government to file a reply justifying its Order of 29th

March i.e. making it compulsory for the employers to pay full wages on due dates to the employee.

This is another illustration to show how the government has been changing policies and laws as

per its whims and fancies and hence a check on the same is a must.

d. The infamous Aarogya Setu App

Aarogya Setu app was introduced by the government in order to track down the corona virus

affected patients or take precautions in cases where the person has been in closer vicinity to any

such person who was affected by the virus or has travelled to an affected land or has been

quarantined. The app did not just provide information to the government but also to other

individuals who had downloaded the app. The information to other individuals was restricted only

to aspects such as whether the person is suspected of the virus or not.

Even though the app was introduced with a good motive i.e. precaution and detection it was seen

the implementation went haywire owing to the many privacy concerns related to the app. The

Ministry of Home Affairs on May 1 issued guidelines15 stating the mandatory use of Aarogya Setu

13 Moushumi Das Gupta & Remya Nair, Modi announces Rs 20-lakh crore package to revive economy and a ‘new

look’ lockdown 4, THE PRINT (May 12, 2020, 12:03 AM) https://theprint.in/india/modi-announces-rs-20-lakh-crore-

package-to-revive-economy-and-a-new-look-lockdown-4/420036/. 14 Ministry of Home Affairs, Extension of lockdown till 31.5.2020 with guidelines on lockdown measures, 1 (2020),

https://www.mha.gov.in/sites/default/files/MHAOrderextension_1752020.pdf. 15 Ministry of Home Affairs, Extend Lockdown period for 2 weeks w.e.f. 4.5.2020 with new guidelines, 7, (2020),

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app for all employees, both private and public. The recent protocols16 governing the app were

released by the Ministry of Electronics and Information Technology, Government of India

(hereinafter referred to as “MeitY”). The said protocol makes it clear that the government by

executive orders wishes to completely wipe off a citizen’s right to privacy as guaranteed under

Article 21 and also does not want to have any liability for it.

The landmark case of Justice K.S. Puttaswamy17 clarified upon the aspect of Right to Privacy and

various roots arising from the same. The judgment made it clear that the Right to privacy is a

fundamental right which can be curtailed by the application of reasonable restrictions. These

reasonable restrictions need to pass the test of Article 21 and 14 and thereby need to fulfil the

following conditions:

1. The restriction should not be solely based upon an executive order but should be

backed by law, in force, passed by the parliament.

2. The restriction should not be arbitrary.

3. The restriction imposed upon the right should be proportional to the need of such

restriction.

In the present case it has been observed that none of the conditions are met are they have been

blatantly ignored and violated. Firstly, Aarogya Setu has been made mandatory to be downloaded

by the various people and several punishments have been assigned for its non-compliance. The

law which has been used as a justification is the DMA, which under no provision gives the

Government of India any such authority. The government has been using the wide and an arbitrary

power bestowed upon it by the poorly worded legislation and has been messing with the citizen’s

fundamental rights. India’s Data Protection Bill is also yet to be passed by the Joint committee and

hence the said app being made a mandatory process is purely an executive decision backed by no

law and hence does not serve as a reasonable restriction.

Secondly, the app along with its privacy policy and the MeitY protocol governing it, is prima facie

arbitrary and vague. The MeitY under Protocol 618 has given a general explanation as to, the

information collected by the app can be shared with who all? Rather than making the definition

specific and limiting its ambit to a few needful authorities, the access has been given to each and

every possible Government authority or individuals. In furtherance to the same protocol 819 allows

for the private information to be shared with the research institutes as well as universities and gives

a detailed reason for the same but the same protocol has completely ignored the aspect of the

penalty imposed upon such institute or university in case of disobedience of the requirements under

Protocol 8. In a case where a person’s personal information is at stake creating ambiguity by

merely stating the phrase “liable for penalties” does not suffice. In addition to the same, it has been

observed that a detailed process has been given under the protocol as to how and why the

information is needed but it has completely put the aspect of getting the information deleted from

https://www.mha.gov.in/sites/default/files/MHA%20Order%20Dt.%201.5.2020%20to%20extend%20Lockdown%2

0period%20for%202%20weeks%20w.e.f.%204.5.2020%20with%20new%20guidelines.pdf. 16 Aarogya Setu Data Access and Knowledge Sharing Protocol, 2020, (2020), https://meity.gov.in/content/aarogya-

setu-data-access-and-knowledge-sharing-protocol-2020. 17 KS Puttaswamy v. Union of India (II), (2019) 1 S.C.C. 1. 18 Aarogya Setu Data Access and Knowledge Sharing Protocol, supra note 15. 19 Id.

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the government database, once the objective of the information is achieved, on the side-lines. As

there are many prevalent ambiguities in the privacy policy governing the app the same cannot be

termed as ‘reasonable’.

Thirdly, the restrictions imposed by the app are in no way proportional to the need of the said

information and hence not reasonable. The Government has tried to make the app mandatory for

everyone but has forgotten the basic aspect that very small portion of the Indian population has

Smartphones, the same concern has been raised by the Kerala HC in one of the recent petitions20,

challenging the validity of the app. Moreover, even if, with the help of telephone and related

services Aarogya Setu is provided to the public, how does the government authorise the

information given by the said app. The functioning of the said app is based upon the information

stored in it and thereby on the assumption that a person would be entering the right information in

the app. In a scenario where the government is itself not sure about the working or the efficiency

of the app, making it mandatory is just an overreach of the restriction being imposed and thereby

not ‘reasonable’.

Former Supreme Court Judge B. N. Srikrishna, the one who chaired the committee dealing with

the aspect of the first draft of the Personal Data Protection Bill, has termed the government’s

actions with respect to the use of Aarogya Setu app “utterly illegal”.21 From the above-stated

contentions it can be easily inferred that the app which has been introduced by the Government by

using its powers under the garb of DMA are a violative of Right to Privacy and thereby needed to

be struck aside. The surprising fact about the said app is that via 18th May order of MHA22 the

usage of Aarogya Setu app which was earlier mandatory has now been made optional after various

cases were filed against the constitutionality of the order mandating the app and privacy policy of

the app. This is yet another example depicting how the government has moulded the laws and

citizens of the nation as per its own desires rather than abiding by the rule of law.

e. Important aspects not defined under the EA or DMA

It is pertinent to note that essential definitions like lockdown, curfew, epidemic, etc. are not defined

in either of EA or DMA. Further, it is essential to note that neither the Acts nor any rules lay down

any guidelines with reference to how the measures mentioned in Section 2, 2A of EA or Section

10 of DMA need to be regulated. This itself depicts unrestricted and absolute powers given by the

legislature to the executive without any checks or regulations upon them. It has been rightly said

by the British Politician Lord Acton “Power corrupts; absolute power corrupts absolutely”. Here

the term ‘corruption’ is not restricted to monetary corruption, the phrase means that as a person's

power increases, their moral sense diminishes.23 A similar scenario can be seen in the present case

where the government, in absence of any regulations has been continuously passing orders under

the cloak of COVID-19, whereas the same does not have any legal foundation.

20 John Daniel v. Union of India & Ors., W.P.(C). 9806 of 2020. 21 Apurva Vishwanath, Mandating use of Aarogya Setu app illegal, says Justice B N Srikrishna, INDIAN EXPRESS,

(May 13, 2020, 11:37 AM) https://indianexpress.com/article/india/aarogya-setu-app-mandate-illegal-justice-b-n-

srikrishna-6405535/. 22 Ministry of Home Affairs, supra note 13. 23 Gary Martin, 'Absolute power corrupts absolutely' - the meaning and origin of this phrase, PHRASEFINDER,

https://www.phrases.org.uk/meanings/absolute-power-corrupts-absolutely.html.

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Important terms like “Epidemic” needs to be defined A as to be clear on the aspect as to which law

is the appropriate law for which situation. The importance of defining and providing guidelines

for the imposition of lockdowns and curfews arises owing to the present haphazard. The lower

strata of the society neither have any idea of what a lockdown is nor what are its implications. In

such a situation an instant lockdown, where they are left with no shelter, food, money would lead

to situations as seen in cases of Maharashtra24 and Delhi.25 Moreover, aspects like pandemic and

outbreaks also need to be governed by the same act as they have similar implications and need the

same resolutions.

The provisions such as Sec.10 of DMA need to be regulated, defined and specific. S. 10 have been

used by the government as per its whims and fancies as its language makes it prone to a much

expanded interpretation. S. 10(2)(i) has been cited by the governmental authorities as a justification

for every point raised against them. From the aspect of a poorly coordinated lockdown to the

various arbitrary actions such as forcing employers to pay wages and downloading of an app which

itself is a violation of privacy, the government has used Section 10 to safeguard itself. This is a

depiction of a poorly drafted legislation as its simple interpretation gives absolute powers to the

government in order to mitigate a disaster. There has been no mention of what would be the type

or what aspects can and cannot be governed by the said guidelines. The ambit of the guidelines is

itself not stated which has led to this act of absolute autocracy.

In furtherance to the same definition of ‘Disaster” under DMA, it needs to be more specific and

should exclude all those aspects which are governed by other laws in a specific manner. Ideally

situations like an epidemic, pandemic, etc. should be excluded from the ambit of DMA and the

same should be laid down in the definition of the word disaster under Section 2(d) of DMA.

III. Why the DMA is Needed When There is a Special Law in Force Dealing with

Epidemic Situations?

As stated above, the object of the EA was to prevent the spread of a dangerous epidemic disease.

When a special act is already in force to deal with an epidemic like situations, why did the need

arise to invoke DMA, which has never been used to face a situation like this. A special act is a

private statute; an act which operates only upon particular persons or private concerns. When a

123-year old statute is still in place and acts as a special law, isn’t an obligation casted upon the

legislature to amend it as per the recent trends and conditions and to make it fulfilling as per the

objectives of the statute? In a recent case26 the Apex court has stated,

“The legislature as an elected and representative body enacts laws to give effect to

and fulfil democratic aspirations of the people. The procedures applied are designed

to give careful thought and consideration to wide and divergent interests, voices

and all shades of opinion from different social and political groups. Legislature

24 Thousands of Migrant Workers Protest at Mumbai Bus Stand Amid Lockdown, Lathi charged by Cops, NEWS 18,

(Apr. 20, 2020, 8:46 PM) https://www.news18.com/news/india/migrant-workers-gather-at-mumbais-bandra-bus-

stand-demand-arrangement-of-transport-to-return-home-2577497.html. 25 Sanjay Singh, Migrant workers crowd Anand Vihar bus terminus to return to their villages, ECONOMIC TIMES (Mar.

28, 2020, 8:57 PM) https://economictimes.indiatimes.com/news/politics-and-nation/migrant-workers-crowd-anand-

vihar-bus-terminus-to-return-to-their-villages/articleshow/74863940.cms?from=mdr. 26 Dr Ashwini Kumar v. Union of India & Anr., W.P.(C.) NO. 738 of 2016.

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functions as a deliberative and representative body. It is directly accountable and

answerable to the electorate and citizens of this country.”

The legislature has failed miserably in its duty towards its citizens as it could not understand the

need of the hour and the requisite amendments required in the said Acts. The government has used

this to its benefit and termed the epidemic situation as a disaster, as the Act provides a very general

definition of what is a disaster and thereby invoked DMA. Though the two statues were formulated

to serve completely different purposes, the same have been mixed and confused by the government

in order to gain excessive powers in the current scenarios.

The result of the combined effect of the two statutes can be seen in the present case where people

like migrant workers, students who were restricted to move earlier had to be allowed owing to

various pressures and political agendas. All this has been possible as the uncontrolled power under

the two Acts isn’t backed by any guidelines or obligations upon the government. It has to noticed

that DMA is a more contemporary law than EA. Various guidelines and provisions have been

provided under the ambit of DMA which are completely absent under the EA. In such a case DMA

should be the only law in existence thereby repealing EA. In furtherance to the same DMA should

be further made to concentrate upon different aspects along with separate guidelines and protocols

for each of such situations.

IV. The Coordination Between Centre and The State

India follows a quasi-federal structure i.e. though there is a demarcation of powers between the

Centre and State, in cases of conflict the former will prevail over the latter. The various lists i.e.

the Union, State and Concurrent lists state the matters which demarcate the powers between the

Centre and the State Government. In the present situation, there ought to be a conflict of powers

between the Centre and the State hence there should be a proper bifurcation of the same. The

Centre should be dealing with the macro aspects such as delegating various tasks and laying down

the proper standards. The Centre should also focus upon the aspect of financial aids from other

nations as well as trying to maintain stability and cooperation at an international level. In

furtherance to the same, the Centre should focus upon aspects such as allocation of budget for the

various states depending upon their needs as well as keeping enough reserves for a worse situation.

The Centre also needs to focus upon the aspect of providing facilities such as PPE kits as well as

safety and security to the people which might be neglected by certain states. The Centre needs to

keep a balance between its other duties as well as maintaining the financial stability of the country.

The states, on the other hand, need to focus upon the micro aspects such as maintaining proper and

vigilant system which focuses upon all strata of the society. The State Governments should

formulate Rules and Regulations governing their state as per the condition in the State. The States

need to make sure that the citizens are getting the basic amenities and the various people involved

in the health and safety sectors should be given adequate facilities and safeguards. The State

Governments further need to maintain proper reports of all the issues the states are facing so that

the same can be communicated in a timely manner to the Centre.

In a situation of major chaos where the governments should forget their individual ideologies and

enmities, various State Governments and Central Government haven’t stopped playing blame

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games. Due to the lack of coordination in the decision-making process, major incidents happened

in the States of Delhi and Maharashtra which could have been evaded if there was a better

understanding between the governments. Governments are failing to understand that it is the need

of the hour to stop biting each other and work towards the people. They are continuing their hatred

propaganda27 towards each other when thousands of migrant workers are moving here and there

fighting and struggling for their lives and in doing so they become a greater danger to the society

as they might spread the virus more severely. It is shameful if political leaders have to be called in

a meeting together to make them understand that in the present situation, they need to be onboard

along with the central government.28

V. Conclusions

The article does not aim to dissuade the attempts of the government in dealing with the present

situation, nor does it deny the fact that controlling a large population is different in theory and in

practice. The government of India has done a brilliant job of trying to prevent the spread of

COVID-19 in India yet the laws do not justify their actions. If the same actions could have been

done with proper legal backing and guidelines for the same, the situation would have been much

better. In a country like India, the government cannot expect people to go on an instant lockdown

without prior information because of the various reasons stated in this article. People living in the

biggest democratic country of the world can’t be expected to be governed by a dictatorship

approach all of a sudden. Decisions which prima facie are inclined towards one sector of society

would not be accepted by people. Making people follow aspects which are a clear violation of their

fundamental rights does warrant for review and accountability. It’s high time that the politicians

remember that they are the representatives elected by us for our betterment hence need to keep

their party agendas aside and start working together in this need of the hour.

27 Adam Michael Auerbach, Political parties battle each other in Indian slums by using rumours and violence, THE

PRINT (Mar. 28, 2020, 3:45 PM) https://theprint.in/pageturner/excerpt/political-parties-battle-each-other-in-indian-

slums-by-using-rumours-and-violence/390248/. 28 Pratul Sharma, Modi to hold meeting with political parties to bring them onboard in fight against COVID-19, THE

WEEK (Apr. 5 2020, 9:15 PM) https://www.theweek.in/news/india/2020/04/04/modi-to-hold-meeting-with-political-

parties-to-bring-them-onboard-in-fight-against-COVID-19.html.

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A Study of Animals as Legal Persons

Pranjal Pranshu1

Abstract

Animals have always been subject to being treated as disposable when compared to human

lives and living. While there are multiple animal welfare legislations, their efficacy is still a

far cry from the objectives they aimed to achieve. The laws have generally been neglectful

towards animals and can even be said to have failed them; perhaps, for this reason, the

concept of legal personhood of animals is increasingly becoming popular. In essence, it

means that certain jurisdictions are willing to accept animals as legal persons and accord a

legal person's rights to animals. While done with the view to safeguarding animals' existence,

such recognition brings with itself a host of its own problems. The standard definition of a

legal person is in jeopardy, and the new recognition will need certain accommodations in the

current legal framework or a workaround to sort out the issue of raising the legal status of

animals. Many nations are still in conflict over the newfound recognition. This paper would

describe the animal welfare legislation in India and point out its inefficiency. Further, it

would analyse the instances of recognition of animals as a special entity from ancient times

and proceed to the modern-day act of the Punjab and Haryana, and the Uttarakhand High

Court of giving all the animals the status of legal persons. It would examine its implications

and provide solutions for the issues arising out of them. While perusing the legislation's

nuances, it would compare the jurisdictional response to this new understanding all over the

world. Lastly, it would part with asserting the need to raise animals' legal status anyway, for

justice and equity.

Key Words: Legal Person, Animals, Animal Welfare Legislation, Animal Rights, Animal

Personhood.


1. Introduction

“The greatness of a nation and its moral progress can be judged by the way its

animals are treated.” Gandhi.

In a world dominated by humans, the lives and liberty of animals are always in jeopardy. This

planet's self-declared rulers have caused innumerous species to be endangered, and many still to

go even extinct. This is a result of indiscriminate killings for the resources obtained from the

animals. Further, the expansion of human settlements pushes animals out of their homes.2 Many

animals are subjected to callous treatment in circuses, zoos, and even as pets of owners, even

though love and compassion for animals are enshrined under fundamental duties.3 In contrast to

independent living entities, animals have become a contrivance to satisfy human wants.

It is not true that there are no welfare legislations written for the sake of the animals. In fact, in

India, such laws are abundant. But not all laws are competent and have kept in touch with the

times completely. For example, Section 428 of IPC, which punishes for the killing or maiming of

1Pranjal Pranshu, Fifth Year Student, KIIT Law School, Bhubaneswar.

2 Jani Actman, 12 Nat Geo Stories That Exposed Wildlife Exploitation, National Geographic (Nov. 9, 2015),

https://news.nationalgeographic.com/2015/11/151107-national-geographic-wildlife-crime-traffickinganimals/. 3 Constitution of India; art. 51A, Cl. g.

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animals has a minuscule monetary fine, and though the terms of imprisonment are two years,

such is rarely followed, and only in exceptional cases. The fine for an offence under this section

is Rs. 10, an amount so low that it places no value on the animals' lives. Similarly, the provision

of Section 429 of IPC suffers from the same fate, with the punishment being grossly inadequate

to be considered retributive in modern times.4 In fact, it is the people's approach that animal life

is inconsequential in respect of a normal human life and the people themselves clamor to ease up

on the punishment of the guilty if all he is charged with is harming the life of the animal. This

approach trivializes the life of animals. Prevention of Cruelty to Animals Act, 1960 is the

stalwart act in India enacted in defense of those animals that generally face regular human

interactions. It has multiple sections that detail the treatments that the animals are to be

accorded.5 It has established rules that try to restrain the public from handling the animals

cruelly. It also attempts to police the experimentation on animals. The act also has directions

regarding performing animals, a sign of the times of circuses and wandering showmen, stating

that a performing animal can only be exhibited or trained by a person who is registered under the

act’s chapter and anything done in contravention to the same is punishable.6 In spite of all these

laws, they are rarely ever followed and have proven grossly ineffective.

India recently passed additional guidelines to increase the scope of protection to Dogs,7 Fishes,8

and Livestock9 , etc. They are passed under the aforementioned act and are supposed to

extinguish the cruelty that these animals face at the hands of humans.10 Rules are also in place to

ensure that animals will not be slaughtered for any reason at places other than at licensed

slaughterhouses. Thus expressly forbids animal sacrifice in every part of the country,11 though an

exception has been made in consideration of religion.12 This defeats the purpose as thousands of

animals are sacrificed in the country, stating religious purposes. The Wildlife Protection Act also

attempts to function as a shield by restraining animals' hunting, but the enforcement of the law is

a far cry from the need of the hour.13

Along with the incompetence and lack of stern enforcement, the current welfare laws are also

lacking as they relegate the animals to a property's status. They still allow animals to be used and

only try to regulate the way we use them.14 These laws, while enacted with the intention to

safeguard the animals would still be content with letting animals be regarded as objects subjected

to human will. Demarcation of the animals as property is erroneous as they are distinct from

other types of property that humans possess. They are not inanimate and man-made like a car,

4 Humane Society International (India), 15 Animal Rights in India That Every Citizen Should Know, THE BETTER

INDIA (Feb. 19, 2016, 3:55 PM), https://www.thebetterindia.com/46721/humane-society-india-animal-laws-

prevention-of-cruelty-act/. 5 Prevention of Cruelty to Animals Act, 1960, § 11, 17 (1A). 6 Prevention of Cruelty to Animals Act, 1960, Chapter V. 7 Prevention of Cruelty to Animals (Dog Breeding and Marketing) Rules, 2017. 8 Prevention of Cruelty to Animals (Aquarium and Fish Tank Animals Shop) Rules, 2017. 9 Prevention of Cruelty to Animals (Regulation of Livestock Markets) Rules, 2017. 10PETA, India Passes New Rules to Protect Animals, PETA INDIA (May 27, 2017, 7:53 PM),

https://www.petaindia.com/blog/india-passes-new-rules-protect-animals/. 11 Prevention of Cruelty to Animals (Slaughter House) Rules, 2000; Rule 3. 12 Prevention of Cruelty to Animals Act, 1960, § 28. 13 Wildlife Protection Act, 1972, § 9. 14GARY L. FRANCOINE, ANIMALS AS PERSONS: ESSAYS ON THE ABOLITION OF ANIMAL

EXPLOITATION 7 (Columbia University Press, 2009).

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laptop, cell phone etc. Neither are they like plants lacking reasoning and neural capabilities.

They have a will of their own as well as their own desires and distresses. The animals react

passively, as was held for the most part in the 20th century, but are dynamic thinkers, often

displaying sufficient problem-solving skills to survive daily life.15 They have the ability to act

independently and possess a level of sentience. As stated earlier, animals to varying degrees can

feel,16 and as such placing them in the category of objects is a severe disservice to their existence

and is unquestionably unjustifiable.

II. Role of Judiciary in Protection of Animals

Judiciary is the organ that fills the breaks left by the legislature. It is the entity that is expected to

interpret the laws in an equitable manner, just and in line with the principles of our constitution.

In this regard, it has come a long way in reading provisions that would otherwise not be regularly

expected and foreseen. Though it is definitely the duty of the judiciary to work for the good of

all, and perhaps that served as motivation, recently, the Indian Judiciary has been very proactive

in increasing the scope of animal protection by interpreting the law in a wide manner. One of the

most vivid examples would be the recent decision of the High Court of Punjab and Haryana, and

earlier the High Court of Uttarakhand to categorize animals as legal persons. This in essence,

gives animals the same slew of rights that a legal person would enjoy. Of course, one should

concur that such a distinction would be with certain modifications to make it applicable to the

faunae in practice. This decision is quite a departure from the previously established rule of

disregarding animal life forms as either Legal or Natural Persons.17 They were given protection

under welfare laws but were not granted the status of personhood.

Ironically, animals were treated differently in ancient times when they were punished for a

variety of offenses, almost in the way one punishes a person.18 Especially in Europe during the

middle ages, there have been innumerable instances of animals standing trials; like in 16th

Century, when the rats were charged and tried for harming a farmer’s field. The court even

awarded punishments to the tiny pests. In fact, the middle ages were rife with cases of animal

trials, with pigs, dogs, snails, rats, etc. being charged for crimes against People, Property, or God.

This went to the levels that the pig was charged with murder, while the owner escaped liability

for a five-year-old's death that the pig had killed.19 The courts even endeavored to try the

animals as closely as it would try a human.20 In the case of larger animals, the punishment was

quite easily doled out, but the same was not the case with the smaller animals. All the animals

were held to be on the same moral standard as humans. This led to some bizarre cases where rats

15 Virginia Hughes, Like in Humans, Genes Drive Half of Chimp Intelligence, Study Finds, NATIONAL

GEOGRAPHIC (July 12, 2014), https://news.nationalgeographic.com/news/2014/07/140710-intelligence-

chimpanzees-evolution-cognition-social-behavior-genetics/. 16 Simon Worrall, Yes, Animals Think and Feel. Here's How We Know, NATIONAL GEOGRAPHIC (July 15,

2015), https://news.nationalgeographic.com/2015/07/150714-animal-dog-thinking-feelings-brain-science/. 17DR. AVATAR SINGH, DR. HARPREET KAUR, INTRODUCTION TO JURISPRUDENCE 351 (LexisNexis, 3rd Edition Reprint 2011). 18 Walter W. Hyde, The Prosecution and Punishment of Animals and Lifeless Things in the Middle Ages and

Modern Times, 64 U.PA.L.REV., 696, 698 (1916). 19 Sonya Vatomsky, When Societies Put Animals on Trial, JSTOR (Sep. 13, 2017), https://daily.jstor.org/when-

societies-put-animals-on-trial/. 20 Eric Grundhauser, The Truth and Myth Behind Animal Trials in the Middle Ages, ATLAS OBSCURA (Aug.10,

2015), https://www.atlasobscura.com/articles/the-truth-and-myth-behind-animal-trials-of-the-middle-ages.

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were acquitted because their representative argued that they are in danger of their lives due to

cats and other natural predators, and hence are not present at the court. This was the picture of

animal legislation as recently as the 18th century. Overall, it has to be noted that this caused more

barbaric acts to be committed than any good towards the welfare of animals. Though on the flip

side, sometimes some acts of animal welfare did occur, like when in a bestiality case, the donkey

was acquitted; it being held that the donkey had not given consent was the victim, and the person

accused was executed. These practices of animal trials were some of the first instances of

personalizing them and in some remote places are continuing, especially where Catholicism is

dominant.21 There is no doubt about the absurdity of the way the trials were committed, but

seeing that how the recent environmentalists and animal activists globally are clamoring to get

animals the status of a legal person, perhaps the Europe of middle age was in the right direction,

but only was proceeding in the wrong manner.22

Coming back to modern India, it is one of those jurisdictions in the world, who are on the verge

of accepting the standing of the animals as a legal person, not under infamous trials or customs,

but through a judgment of Uttarakhand High Court in July 2018,23 given by the bench of Justice

Rajiv Sharma and Justice Lok Pal Singh, which declared “the entire animal kingdom in the state,

including the avian and aquatic animals, will be treated as legal entities with distinct persona and

corresponding rights, duties and liabilities of a living person.” They reasoned that such a

distinction is essential for providing greater welfare to all the terrestrial, aquatic, and avian

animals. Originally, the petition, a PIL was filed to restrict the arrival of unvaccinated horses

from Nepal, but the scope of the petition was made larger to embrace the benefit and protection

of all the animals. The people of Uttarakhand are, for the welfare of the animals to be considered

Loco Patentis.24 Loco Parentis means “in place of a parent”, thus the residents are expected to

take over the functions and responsibilities of a parent. The judgment took the strength from an

earlier Supreme Court decision that gave fundamental rights to the animals.25 It reasoned that

animal life must not be about mere survival or instrumental value to humans, but they should be

empowered to live a life of intrinsic honor, dignity, and value. The status is not expected to give

the animals all the rights of a legal person but allow the human representatives to take legal

actions on their behalf.26 When transferred to Punjab and Haryana High Court, Justice Rajiv

Sharma gave a similar judgment in 2019,27 which establishes animals as legal persons in the

same way and established the same role of Loco Parentis to the people of Punjab and Haryana.

Many of the other directions regarding the treatment of animals are similar to those passed in the

earlier judgment he gave in Uttarakhand High Court.

21 Vatomsky, Sonya Vatomsky, When Societies Put Animals on Trial, JSTOR (Sep.13, 2017),

https://daily.jstor.org/when-societies-put-animals-on-trial/. 22 Matt Simon, Fantastically Wrong: Europe's Insane History of Putting Animals on Trial and Executing Them,

WIRED (Sep. 24, 2014, 06:30 AM), https://www.wired.com/2014/09/fantastically-wrong-europes-insane-history-

putting-animals-trial-executing/. 23 Narayan Dutt Bhatt v. Union of India & Ors, SCC Online Utt 645. 24 Apoorva Mandhani, Uttarakhand HC Declares “Entire Animal Kingdom” As Legal Entity, With Rights, Duties &

Liabilities Of A Living Person [Read Judgment], LIVELAW (July 4, 2018, 6:16 PM),

https://www.livelaw.in/uttarakhand-hc-declares-entire-animal-kingdom-as-legal-entity-with-rights-duties-liabilities-

of-a-living-person-read-judgment/. 25 Animal Welfare Board of India v. A. Nagaraja & Ors., (2014) 7 SCC 547. 26 Meghan Scolyer, Indian Court Recognizes Animals As Legal Persons, VOICELESS (8 Aug. 2018),

https://www.voiceless.org.au/content/indian-court-recognises-animals-legal-persons. 27 Karnail Singh and Ors. v. State of Haryana, 2019 SCC OnLine P&H 704.

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A. Meaning Of A Legal Person

To understand the implication of the judgment and to consideration of animals as legal persons,

it is prudent to understand what constitutes a legal person, a concept that is present in almost

every jurisdiction. The word person is derived from a Latin word persona.28 It has eventually

come to mean a being that has rights and duties. There are two types of person, the first being a

legal person, which is an entity having rights and obligations under law. To make someone a

legal person is akin to giving them a legal personality and can be ascertained by such a system of

rights and obligations. It is identified by will or capacity, which the entity is observed to possess.

Salmond defined Legal Persons as “beings that either real or imaginary, who for the purpose of

legal reasoning are treated in greater or less degree in the same way as human beings.”29 This is

different from the second type of person called a natural person, which only includes individual

Human Beings as the sole natural persons. The legal personality of a Natural person is intrinsic.

Natural persons are persons both ‘in law’ as well as ‘in fact’. Legal persons are persons distinct

as they have legal personality in law if it is not thereby fact.30 Every natural person is a legal

person, but every legal person will not be a legal person. The function of legal personality is not

just to regulate the behavior of the entity on which such personality is conferred but also to

regulate others' conduct towards that entity. The purpose of giving legal personality to entities is

thus to ease the interaction with them through the processes of law.31Currently, there are two

requisites of legal personality, corpus, and animus. Corpus is the body in which the animus is

infused using law. Thus, a legal entity is created at first and then provided a personality. It is

presumed that the Legal Person is capable of having rights and duties as a natural person.32

Further, many jurisdictions allow extensions of fundamental rights to legal persons. Germany,33

New Zealand,34 etc. among other countries have written in their legislation that legal persons are

to be granted fundamental rights. Until now, for the most part, the corporations, organizations,

trusts, and bodies that were officially imbued with legal personality and were considered legal

persons. But its definition is being expanded to be wide enough to accommodate a variety of

other entities, as legal persons are a construct of law.

B. Consequences And Remedies

The Judgment has divided many lawyers and wildlife activists. This enlargement of the

definition is clearly the act of judicial activism, and while clearly, commendable has the same

practical difficulties in application. Some experts say that it would be more prudent to better

enforce existing laws than make new laws. On the other hand, most are expressing delight at the

judgment and already envisioning a world where animals would be better treated than they are

now, seeing that current legislation regarding animal welfare has a negligible effect for the most

part.35 This distinction enables the animals to be defended in courts. An entity can be appointed

28LEONARD GEDDES, THE CATHOLIC ENCYLOPEDIA (New York: Robert Appleton Company, 1911). 29 John H Farrar, Salmond and Corporate Theory, 38 V.U.W.L.REV., 925, 926 (2007). 30SINGH & KAUR, supra note 17. 31 P. Bryant Smith, Legal Personality, 37 YALE L.J. 283, 296 (1928). 32V.D. MAHAJAN, JURISPRUDENCE AND LEGAL THEORY 337 (Eastern Book Company, 5th edn. 2016). 33German Constitution; art. 19, Cl. 3. 34 New Zealand Bill of Rights Act 1990; §28. 35 Ridhima Gupta, After Ganga, Uttarakhand HC Declares Animals & Birds Have Same Rights As A “Living

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to represent animals on their behalf in court. This is clear that giving the status of legal person to

animals won’t give them rights like the right to vote in an election, but rather the rights against

exploitation, experimentation, representation, etc.

Presuming that the judgment is not overruled, the biggest impact will be defining a legal person.

The definition has already been broadened by the Uttarakhand High Court if receives assent from

the higher body will make it more binding over all of India. If followed, the judgment can open a

Pandora box as it addresses the need to rethink the meaning of a legal person and the animals.

The welfare laws were framed when influenced by religious ideologies, it used to be believed

that humans have dominion over animals. Thus, the laws were framed as such that animals hold

the position of at most a man's property. Today we have definite proof that almost all the animals

have a certain level of sentience. Animals have the ability to feel joy, sadness, fear, etc.36 The

interests of the animals should have the same level of moral consideration. This decision affirms

that. The law might evolve to accommodate the animals in its domain in a manner that animals

having complex mental facilities and social structures would be given rights as a legal person,

sooner than the animals of lower cognitive abilities.

But the change will not be without its own issues. Firstly, under the current system, the natural

environment is held as a trust by the government. The natural resource animals who are held as a

trust. Giving personhood to animals would require guardians who would protect their legal

interests as well as represent them.37 In the Uttarakhand High Court’s decision, the people are

mandated with the role of a parent or a guardian, but along with that, the government should also

be expected to play a similar role as a parent. This should be not just the case when the complaint

is filed for the animal, but also when it is against it.38

Secondly, in making an animal a legal person, an animal would also be liable to be sued, for any

act it commits. In that regard, the representative or guardian of animal would be liable to

compensate for the damage caused by the animal. Under current laws, the owner of a domestic

animal is held liable under Absolute Liability. He is bound to pay compensation for any act of

the animal that harms someone else. This would continue even if we give the pet animals the

status of a legal person. But for the wild animals, no such system of compensation is in place. If

animals are assigned the status of legal person, the government has to take up the guardian's

mantle, similar to the case in Macedonia.39

Lastly, making every animal in the animal kingdom a person would be inconvenient at best and

traumatic at worst for various industries that depend on them. For example, poultry, dairy,

fishery industries are heavily dependent on the existence of animals. India alone is the 5th largest

Person”, THE LOGICAL INDIAN (July 24th, 2018, 5:00 PM), https://thelogicalindian.com/awareness/uttarakhand-

hc-animal-kingdom/. 36PETER SINGER, ANIMAL LIBERATION 10–15 (Harper Collins, Revised ed, 2002). 37 Mandhani, Apoorva Mandhani, Uttarakhand HC Declares “Entire Animal Kingdom” As Legal Entity, With

Rights, Duties & Liabilities Of A Living Person [Read Judgment], LIVELAW (July 4, 2018, 6:16 PM),

https://www.livelaw.in/uttarakhand-hc-declares-entire-animal-kingdom-as-legal-entity-with-rights-duties-liabilities-

of-a-living-person-read-judgment 38 Thompson Reuters, Macedonian court convicts bear of stealing honey, THOMPSON REUTERS (Mar. 13, 2008,

8:15 PM), https://www.reuters.com/article/idUSL13835831. 39 Id.

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egg producer and 18th largest broiler producer globally with the sector valued at around 15.38

billion dollars and is only expected to grow.40 Similarly, dairy and fish industry are also a major

industry with India occupying the 1st position41 and 3rd position42 respectively globally in net

production. Allowing the animals involved in these industries' status will effectively kill the

industries and create an enormous economic loss for the country. This would also disrupt the

way of life of a large section of the population. There are two ways one can get around the

issues. The first way would be to give the entire animal kingdom the status of personhood, but

rather than legal personhood, they are given special personhood. This would be in line with the

rules being followed in Germany, Austria, and Switzerland, etc.43 Thus they will not be eligible

for the full set of rights that a legal person would have, but nevertheless, have a certain set of

legal rights for themselves. The only issue would be due to the immense diversity of the animal

kingdom the rights would have to be made variable, depending upon the complexity of the

animal, which brings us to the second solution. This would involve not giving the status of a

legal person to all the animals, but to only those that display higher cognitive function and

sufficient sophistication.44 Thus classes of animals would be defined and only the highest among

them would be awarded the status of a legal person. While this would be more in tune with the

current legal scenario and not be as disruptive, it would defeat the very purpose of bestowing

them legal personhood by making the enhanced protection unavailable for all. The most prudent

approach would be an amalgamation of both the solutions, with the Legal Personhood given to

sufficiently complex and sentient beings, like Dolphins, etc., and special personhood being

granted to other classes of animals. This would solve the issue of awarding legal personhood to

entities like rats and insects, but still giving endangered lower cognitive species protection

through special personhood.

III. Concurrent Jurisdictions In Modern Times.

In 2008, a bear in Macedonia was convicted of stealing honey. The case was eventually decided

in the favour of the beekeeper and the state was ordered to pay the beekeeper $3500, as the bear

had no owner.45 The court reasoned that doctrine of strict liability can apply in the case of the

animal having an owner, but as the bear being an endangered species was under state protection,

the state can be presumed to be the owner.46 Many countries have amended their civil codes to

change the status of animals. Some notable ones are Germany, Austria, and Switzerland, etc.

who have declared that animals can no longer be subject to laws as an object or property.47 They

are treated as a special category. This while has not given them the status of a legal person but

has still imbued them with stronger rights.

40 Ricky Thaper, Indian Poultry Industry at a glance, BENISON MEDIA (May 21, 2018,),

http://benisonmedia.com/indian-poultry-industry-at-a-glance/. 41 FAO of the UN, Gateway to dairy production and products, FAO OF THE UN (2019), http://www.fao.org/dairy-

production-products/production/en/. 42 NFDB, About Indian Fisheries, NFDB (2016), http://nfdb.gov.in/about-indian-fisheries.htm. 43 German Civil Code, § 90a; see also Austrian Civil Code, art. 285; see also Swiss Civil Code; art. 641a. 44 Mrinalini Shinde, Here’s the Problem with Declaring Animals as Legal Beings in India, THE QUINT (July 11,

2018), https://www.thequint.com/voices/opinion/uttarakhand-high-court-declares-animals-legal-beings-questions. 45THOMPSON REUTERS, supra note 37. 46 Lowering the Bar, Bear Convicted, LOWERING THE BAR (Mar. 20, 2008),

https://loweringthebar.net/2008/03/bear-convicted.html. 47 German Civil Code, § 90a; Austrian Civil Code, art. 285; Swiss Civil Code, Art 641a

103

http://benisonmedia.com/indian-poultry-industry-at-a-glance/

http://www.fao.org/dairy-

http://nfdb.gov.in/about-indian-fisheries.htm

http://www.thequint.com/voices/opinion/uttarakhand-high-court-declares-animals-legal-beings-questions





In 2014, Romanian MP introduced a bill that grants the dolphins the legal personhood of a ‘non-

human person’. This would give these aquatic mammals legal rights.48 They can no longer be

used for experimentation or human entertainment. Equador and Bolivia have both granted a

detailed set of rights to nature under its legislation.49 New Zealand has gone so far as to grant the

Te Urewara National Park the legal entity's status.50 Quite similar to the way river Ganges and

Yamuna were given legal personhood in India (though it was later refuted), New Zealand gave

personhood to Whanganui River, a decision verily favourable for environmental litigation.51

US Courts on the other hands denied the right of personhood to a chimpanzee when a writ of

Habeas Corpus was filed. The court reasoned that rights and duties go hand in hand and rights

can be given only in the case of the entity assuming some duty or responsibility. The judgement

was pronounced even though many experts gave an opinion that the chimpanzees have complex

cognitive functions.52 But the US legislature in some states has passed laws that the pets would

be a part of the custody battle. The pets can even be a subject to joint custody in which the best

interests of that pet will be looked after. In some US states the pets can be considered beneficiary

of the trust, which at least gives them status of some sort of quasi-legal person. This is definitely

the first step towards the recognition of animals as more than an object.53 Thus the mindset is

slowly changing with some judges willing to see the animals for who they are and not what they

are and acknowledging the need and urgency of definite rules on this issue.54 Australian laws still

consider animals as property which is a legacy of the common law system. It has not progressed

to adapt to the newer understanding of animals.55 In the same vein though, France has given

animals the status of living and sentient beings, and no longer property.56 This would be mostly

symbolic but is a testament of how the view is changing. In 2016, the Argentinian court, while

deciding the case where a chimpanzee was treated inhumanly for a long time, treated the animal

as a legal person with rights and ordered the chimp to be released in the wild sanctuary.57

48 Bogdan Cristel, Matthias Williams, In election year, Romania debates giving human rights to dolphins,

REUTERS (Feb. 15, 2014), https://uk.reuters.com/article/oukoe-uk-romania-dolphins/in-election-year-romania-

debates-giving-human-rights-to-dolphins-idUKBREA1D1J920140214. 49 Dinah Shelton, Nature as a legal person, VertigO - la revue électronique en sciences de l'environnement [Online],

Hors-série 22 |( 2015); see also Lidia C. Pecharroman, Rights of Nature: Rivers That Can Stand in Court, 7 MDPI 1,

(2018) 50 Katherine Sanders, Beyond Human Ownership’? Property, Power and Legal Personality for Nature in Aotearoa

New Zealand, 30 J.ENV.L. 207, 207 (2018). 51 Eleanor Ainge Roy, New Zealand river granted same legal rights as human being, THE GUARDIAN (16 Mar

2017, 04.50 GMT), https://www.theguardian.com/world/2017/mar/16/new-zealand-river-granted-same-legal-rights-

as-human-being. 52Steven Wise, Why the First Department’s Decision In Our Chimpanzee Rights Cases Is Wildly Wrong, NON

HUMAN RIGHTS BLOG (June 22, 2017), https://www.nonhumanrights.org/blog/first-department-wildly-wrong/. 53 Suzanne Monyak, When the Law Recognizes Animals as People, THE NEW REPUBLIC (Feb. 2, 2018),

https://newrepublic.com/article/146870/law-recognizes-animals-people. 54 Nick Turner, US civil rights group hails historic progress in the fight to secure fundamental rights for nonhuman

animals, INDEPENDENT (16 May, 2018, 11PM), https://www.independent.co.uk/news/long_reads/animal-

sentience-historic-progress-nonhuman-animal-rights-a8352686.html. 55 Geeta Shyam, The legal status of animals: The world rethinks its position, 40(4) ALT L.J. 266 (2015). 56 Jean-Marc Neumann, The Legal Status of Animals in the French Civil Code, 1 GLOBAL J. ANIMAL L. 1, 12

(2015). 57Presented By A.F.A.D.A About The Chimpanzee “Cecilia”- Non-Human Individual, Expte. Nro. P-72.254/15,

Tercer Juzgado De Garantías, Judicial Power Mendoza (2016).

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http://www.theguardian.com/world/2017/mar/16/new-zealand-river-granted-same-legal-rights-



http://www.nonhumanrights.org/blog/first-department-wildly-wrong/

http://www.nonhumanrights.org/blog/first-department-wildly-wrong/

http://www.independent.co.uk/news/long_reads/animal-

http://www.independent.co.uk/news/long_reads/animal-



Perhaps not in the sense of attesting legal personalities, but many native tribes in various

countries do personify the animals. A tribe in the Philippines, named as Ifugao has already

established animals as having legal personalities and consider it a heinous crime if someone

maliciously kills an animal.58 The natives of Papua New Guinea believe the animals and humans

to have a linked destiny, and to have sprung from similar stock.59 Though in most of the places,

the belief of natives is insufficient to get a nationwide rule established. They are also prone to

personifying only some animals based on their religious or cultural beliefs, thus often ignoring

other animals of similar intelligence. Nonetheless, the way of personalization of the animals is

characteristically similar to giving them personhood.

All these engagements of various jurisdictions, some holding the age-old belief, some attaining

realization recently, considering that the animals can be legal personalities provide a backdrop of

reanalysing the definition of personhood and how does one classify an entity as a person. It is an

addition to the increasing international dialogue on non-human personhood. It is apparent that

slowly but gradually every country will be forced to acknowledge animals' status as an object

that they have given is faulty. The acknowledgment would result in a global change in

perspectives and raise the global population's collective morality towards the treatment of

animals.60

IV. Conclusion

The judgment to give the status of the legal person to animals while not unique but is expected to

improve animal welfare litigation and improve the conditions of animals in India. The judgment

is in harmony with the Supreme Court decision61 of 2014 that extended the protection of Article

21 of the Indian Constitution to the animals. It further augments the already existing animal

welfare laws. This judgment is a reflection of how cultural progression has occurred. No longer

will the empathy towards animals be a mere obligation, but would be a definitive assertion.62 The

change in legal status is not just the sign of the times, but also in tune with correcting the wrong

demarcation that animals had been considered under for such a long time.

Many countries have already engaged in raising the animals' personhood status with the activists

all proposing extension of the scope of legal personhood to animals.63 There are International

Entities like Non-Human Rights Project, which is actively engaged in ensuring a rise in the

animals' status to legal persons. They believe that the animals should be given on par treatment

based on the concern for their welfare and respect to their rights. They are a global organization

58 Peter Paul, Some Origins of Laws and Legal Codes Regarding Animals, Part III, 5 COMMUN. ANIMAL CONT. 16,

26 (1986). 59PAUL A. REES, THE LAWS PROTECTING ANIMALS AND ECOSYSTEMS (Wiley & Sons, 2017). 60 Laura Bridgeman, Romanian Dolphin Personhood Law is a Step in the Right Direction, OUR GREEN PLANET

(2014), https://www.onegreenplanet.org/news/romanian-dolphin-personhood-law-is-a-step-in-the-right-direction/. 61 Animal Welfare Board of India v. A. Nagaraja & Ors. (2014) 7 SCC 547; see also Animals and Birds Charitable

Trust and Ors. v. Municipal Corporation of Greater Mumbai and Ors 2015 (4) ABR 242. 62DTE Staff, Uttarakhand HC order declaring animals as legal entities reflects cultural progress: experts, DOWN TO

EARTH (July 6, 2018), https://www.downtoearth.org.in/news/wildlife-biodiversity/uttarakhand-hc-order-declaring-

animals-as-legal-entities-reflects-cultural-progress-experts-61036. 63 Jessica Berg, Of Elephants and Embryos: A Proposed Framework for Legal Personhood, 59 HASTINGS. L.J. 370

(2007).

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http://www.onegreenplanet.org/news/romanian-dolphin-personhood-law-is-a-step-in-the-right-direction/



http://www.downtoearth.org.in/news/wildlife-biodiversity/uttarakhand-hc-order-declaring-





that is actively trying to promote this innovative concept.64 There are also national organizations

engaged in animal advocacy and spreading awareness and fighting for the wider change in

status.65

The animal welfare laws are existent, but they are suppressed by even the trivial rights of a

Human. They do not provide adequate protection to animals, and serve as a Band-Aid, rather

than the real issue. Perhaps the best way to start, to speed up the process would be to start small

and initially would be to grant the status to the higher order beings that demonstrate sufficient

cognition and higher brain functions, the rights of Bodily integrity and Autonomy over others.

Then, seeing its effect and results, we can proceed from there.

The decision to acknowledge the status of animals to that of a legal person is a welcome step,

even if the decision is confined to these three states for now, holding only persuasive value over

entities of other territories66. Even with the judgment though there is a need to sensitize the

people and spread the awareness. Because in the end, more than the laws, it is the people who

choose to follow them that represents the security and coexistence that animals would have

against human atrocities. However, if such a change is legislated lucidly such that it includes the

manner of representation and classification of animals and a clear guardianship system under our

existing environmental laws, this emergent concept would be an effective animal protection tool.

64Non-Human Rights Project, Our Mission, NON-HUMAN RIGHTS PROJECT (2019),

https://www.nonhumanrights.org/litigation/. 65 FIAPO, ABOUT US (2019) http://fiapo.org/. 66 Neon Laboratories Limited v. Medical Technologies Limited, (2016) 2 SCC 672.

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http://www.nonhumanrights.org/litigation/

http://www.nonhumanrights.org/litigation/

http://fiapo.org/



The Curious Case of Hung Assemblies and Its Plausible Remedy

Akshit Sachdeva1

Abstract

The present article aims to address a question that penetrates deep into our democratic and

Constitutional fabric. It has such ramifications that leaving it at abeyance would further

indent the already damaged political ethos of India. The controversial issue being talked

here is that where upon the declaration of results of any State’s elections, no single party or

pre-poll alliance touches the magical number and situation of hung assembly emerges, who

should be called upon first in time to form the government – the single largest party or the

post-poll alliance. Amidst determining the legitimate and safest method of resolving the

aforesaid conundrum, the author comments upon the viability and legality of the

“incalculable and unguided discretion” that the Governor enjoys in such occasions. To

substantiate his claims, the author examines the Constitutional prerogative of the Governor,

the arbitrary practice of calling one group over the others, and viewpoint of the Courts and

other authorities in this regard. Further, the article provides for dynamic procedure that

might be adopted to contain this endless battle, however at the same time, raises a pertinent

apprehension of conflict in ethical conduct and law, and opines, in the alternative, to evolve

no-party democracy in India as it is believed that the collective trust in the legislature is

founded on the bedrock of the Constitutional trust.


I. INTRODUCTION

The uproar relating to the issue in hand is not something which the Indian politics has been

unfamiliar with. It mired into controversy again with Goa State Assembly Elections in 2017 and

Karnataka State Assembly Elections in 2018. In case of the former the post-poll alliance was first

called upon by the Governor of the State to form the government, whereas the single largest

party was provided with an early opportunity to prove their majority in case of the latter. One

facet that was common in both the scenarios was that the respective decisions of the Governors

were seen to be challenged in the Apex Court and it ordered to conduct a floor test within a

reasonable time, with an objective to strengthen the democratic values and the constitutional

norms. Apparently, for the Supreme Court the present dilemma seemed to be quite problematic

so much so that it, in case of the latter, constituted a bench at mid-night as the Governor accepted

letter from the single largest party and was ready to administer the oath the next morning.

Having said this, there must not be any confusion that such an irregular practice, which is

completely based on the discretion exercised by the Governor of the states, is proving to be

antithesis to the Constitutional goals and in a sense, casts aspersions on the prestigious

Constitutional office like that of “Governor”. Most importantly, it further leaves room by

providing a breeding ground for horse trading (political defection of members with or without

any gratification, also referred as ‘floor crossing’), although the Governor is expected to be free

from political bias, would seldom act in an unbiased manner, not to forget his political

background or for that matter mere inclination towards a party.

1Akshit Sachdeva, B.A. LL.B. - University School of Law & Legal Studies, Guru Gobind Singh Indraprastha

University.

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The foregoing discussion shall remain concentrated on providing a best suitable method to the

concern, and what the Constitutional courts in India have iterated on this conventional power of

the Governor.

II. Legitimacy of the Discretion of the Governor

Prior to elaborating upon who ought to be called first in time and on what premise, and whether

‘floor tests’ might be the antidote to the prevailing menace, it is imperative to discuss what truly

happens immediately after the results are declared for a State Assembly to highlight the

indispensable play of the Governor. As a matter of practice, the party who believes that it has the

capacity to prove the majority writes a letter to the Governor and upon being satisfied of the

calculations and other material mentioned therein, the Governor decides as to whether it is fit to

move ahead with the oath taking ceremony. Although, the power of the Governor to administer

oath is Constitutional2, but who has to be invited first is purely discretionary, based on the

material produced by the leading member elected from a party. At this juncture, it becomes

relevant to point out that such executive decisions of the Governor though can be challenged

before the High Courts or the Supreme Court, but on very limited and strict grounds.3 In case of

a decision pertaining to the present question, absence of any written law or rule4 further leaves

no room for interference for the Courts. This in itself demands urgent need for the Supreme

Court of India to step forward and settle the proposition for once and for all.

Subsequently, the Governor decides the relevant and necessary details of the oath ceremony such

as the date and time. He then also prescribes the date for the newly appointed Chief Minister to

prove the majority at the floor of the Assembly, to be conducted under the chairmanship of the

Speaker of the Assembly. Interestingly, the date fixed for the floor test is nothing but the

prerogative of the Governor which he is expected to discharge reasonably and justifiably. For

e.g.: Recently, in Karnataka Assembly Elections, when the Governor of the State called upon

the single largest party for administering the oath, the time provided to them to prove majority in

the Assembly was initially fixed to fourteen days. This cannot under any circumstance be called

as reasonable or prudent choice as the same could have resulted into a potential chance for them

to prove the majority by adopting unfair means. It leads us to another question within the

primary conundrum that what time should be considered as ‘reasonable time’ for this purpose.

First things first, it is noticeable that anything which plays a pivotal role in such occasions is the

“discretion of the Governor”. All those acts involving prerogative decision making shall come to

the knowledge of the reader in the subsequent passages of this issue, but before that, it is

quintessential to know the source of this power and test its legal viability.

It is a matter not unknown that ordinarily the Governor is obliged to exercise his powers on aid

and advice of the Council of Ministers of that State.5 However, while carving exception to this

normalcy, the Supreme Court held that this power to act independently was only in regard to

2 The Constitution of India, 1950, art. 188. 3Rameshwar Prasad (VI) v. Union of India, (2006) 2 SCC 1. 4Supra note 2, art. 160. 5Id., art. 161.

108



those situations which have been expressly mentioned in the Constitution itself.6 Later in the

year 2004, the settled law took a sharp turn and the Apex Court sitting in a Constitutional Bench

culled out a few circumstances, apart from what the Constitution already provided for, wherein

the Governor’s independent application of mind becomes inevitable to protect the ultimate

values of the rule of law. The Court enumerated those instances as follows:

a) “Where bias is inherent and/or manifest in the advice, or rarely where the bias becomes

apparent; or

b) Where the decision of Council of Ministers is shown to be irrational or based on non-

consideration of relevant factors; or

c) Where Council of Ministers disables or disentitles itself; or

d) Where as a matter of propriety, the Governor may have to act in his own discretion.”7

It needs no special attention to decipher that the final category is a general one giving endless

power to the Constitutional seat of the Governor. The power exercised for the purpose of the

issue in hand, though not specifically enumerated but finds its place in the residuary portion. The

Court, at the same time, cautioned that the residuary power could be only exercised when there

arise situations concerning complete breakdown or looming threat on the democratic principles

enshrined in the Constitution. Interestingly, the Supreme Court in Nabam Rebia & Bamang Felix

v. Deputy Speaker, Arunachal Pradesh Legislative Assembly &Ors.,8 again a Constitutional

Bench, recognized the Governor’s discretionary power in matters of hung assemblies by

referring and affirming the findings of the Sarkaria Commission report on “Centre-State

Relations”9. Furthermore, the law pertaining to discretionary powers which stood in a vague

manner was clarified by confining it into three ends, namely, 1) where the Constitution provides

so expressly; 2) where any provision of the Constitution cannot be construed otherwise if it is

legitimately interpreted; and 3) where the Court has held that such discretion is available to be

exercised.

III. The Never-Ending Confusion of Calling One Over the Other

With no dubiety on the Governor’s entitlement, the whole issue now rests upon the query as to

who should be first called upon to form the government in cases of hung assemblies, the answer

to which cannot be given without an elaborate discussion on the provisions of the law and

judicial opinion on the issue.

As pointed out earlier, Article 160 of the Constitution states that the President has the power to

frame rules to aid the Governor of a state for the discharge of any function not given under that

Chapter. However, no rules have been framed by the President in this regard. This takes us

directly to the judicial precedents that might be of some help. The Supreme Court elucidated the

concept of floor tests initially in S.R. Bommai v. Union of India,10wherein the Court stated that

6Samsher Singh v. State of Punjab & Anr., (1974) 2 SCC 831. 7M.P. Special Police Establishment v. State of M.P. & Ors., 2005 SCC (Cri) 1. 8 (2016) 8 SCC 1. 9 See also: Justice M.M. Punchhi Commission’s Report, “Constitutional Governance and management of Centre-

State relations”, (2010). 10 (1994) 3 SCC 1.

109



testing the confidence of the Assembly on its floor seems to be the fittest method to prove the

conscience of the members bestowed upon a group. However, this would be subject to a situation

where due to persisting violence in the Assembly, the Governor observes the same in writing in

his conclusions that for such a reason, a fair call by each member is not possible. Pertinently, a

word of caution ought of be mentioned here that the above quoted remark validating floor test

was not made by the Court in case of hung assembly but for the purpose of Article 356 of the

Constitution i.e. the President’s rule or the Governor’s rule. Thus, the law laid down in the

present case lacks application in the present scenario. Moving ahead with a hope of deriving

some concrete answer, the Sarkaria Commission’s report11 becomes material. It indicates the

order of preference and suggests inviting the group which is able to prove the numbers on their

side. This means that post-poll alliance, if crossing the magical number, should ideally be invited

to form the government. Unfortunately, it is merely directive in nature and hence, is reduced to

mean that this thought should cross the mind of the Governor while taking decision.

Examining the feasibility of calling single largest party, it must not be the first choice simply

because of the reason that by any sort of imagination it is mathematically not possible for them

to prove majority. In addition to this, it opens up the gate for ‘horse trading’, and that would

certainly hit by anti-defection laws enshrined under Tenth Schedule of the Constitution.

One might say that single largest group; in essence, the post-poll alliance must be the

quintessential choice without a second thought. The same is apparently supported by the

Supreme Court in Rameshwar Prasad v. Union of India, wherein it observes that

“Where a political party with the support of other political party or other MLAs

stakes claim to form a Government and satisfies the Governor about its majority

to form a stable Government, the Governor cannot refuse formation of the

Government and override the majority claim because of his subjective assessment

that the majority was cobbled by illegal and unethical means. No such power has

been vested with the Governor. Such a power would be against the democratic

principles of majority rule. The Governor is not an autocratic political

ombudsman. If such a power is vested in the Governor and/or the President, the

consequences can be horrendous.”12

However, it is the view of the author that the above-quoted remark involves peril to a great

extent, and thus raises significant doubt on blindly following this route. If the above-mentioned

overlapping of defection laws and post-poll alliance is ignored, even otherwise there seems to be

no concrete legal basis of calling the post-poll alliance merely upon presentation of a letter

guaranteeing the claim mathematically. Such a claim could have been presented to tactically seek

time and adopt malpractices to later show the actual number required for proving majority,

which has been actually the action plan in most of the cases, thereby warranting immediate

interference of the Supreme Court.

IV. The Plausible Remedy

11 Justice Sarkaria Commission’s Report, “Centre-State Relations”, (1988). 12Supra note 2.

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In absence of any legally sound choice, a possible resolution lies in holding mandatory

“Composite Floor Test”.13 A question may be posed challenging such a practice that how any

majority-proving exercises in the nature of floor test may be held when the assembly is kept in

suspended animation. The Supreme Court has thoughtfully considered this concern and stated

that an assembly is constituted and starts breathing, the moment notification under section 73 of

the Representation of People Act, 1951, is issued. Now, the assembly can be brought back into

animation by a supervening proclamation issued merely for the purpose of such a floor test, the

hurdle of Article 188 and 189 can definitely be surmounted. These provisions require oath or

affirmation having been administered before an MLA could cast his vote in the assembly.

Notably, to preserve the purity of democracy and relieve the exchequer from burden of fresh

elections, the administration of oath to MLAs should be done for the purpose of holding

preliminary floor test.14

We all are aware that the Supreme Court had been ordering to hold composite majority proving

test for over a considerable period of time. The same was ordered at the time of Goa and

Karnataka conundrum15 as the circumstances demanded effective attention of the Court. After

carefully examining the legal viability of such an exercise, it becomes pertinent to lay down a

procedure so as to reduce the chances of adoption of any malpractice. It may be brought into

effect either by enacting a suitable piece of legislation regulating the issue or judicial pro-

activeness in form of confining the bounds of discretion of the Governor. In times when political

race for power in the states is at its peak, the former choice seems to be a mere dream, however,

all yearning eyes would be on the judiciary. Whatever happens, it is the view of the author that in

order to eliminate the ills, the convention of presenting letter to the Governor should be done

away with. In addition to it, whenever such situations occur, the Governor should mandatorily

issue an order for holding a composite floor test within a reasonable time frame. The term

“reasonable time frame” must be defined and should not exceed 48 hours from the declaration of

results. In continuation to the process, the Governor should appoint a pro-tem or ad-hoc speaker

and in appointing the same, seniority of the member should be the paramount consideration, if

not the sole criteria. The job of the interim speaker in the impugned matter should be limited to

hold the voting in a free and fair manner, and thereafter, submit the outcome to the Governor in

form of a brief report. Subsequently, the Governor, on being satisfied with the result of voting in

the assembly, should call upon the majority group to form government. To further make the pro-

tem speaker accountable, live telecast of the same may also be held wherever the Governor

orders to that effect.16 Moreover, if a member absents himself, for no reasonable cause shown

beforehand, he should be deemed to be disqualified as “voluntarily given up his membership”

under paragraph 2 of the Anti-defection law.17

The procedure laid down above would reduce the threat of floor crossing and the parties

adopting unethical ploys to reach that magical number. Moreover, the discretionary powers of

the Governor would then be guided and exercised in a transparent manner and not merely on

13Jagdambika Pal v. Union of India, (1999) 9 SCC 95; [This was the first time Supreme Court directed to hold

Composite Floor Test]. 14Supra note 2. 15Chandrakant Kavlekar v. Union of India, AIR 2017 SC 1435 and G. Parmeshwara v. Union of India, (2018) 16

SCC 46. 16G Parmeshwara v. Union of India, (2018) 16 SCC 46; [Live Telecast of the voting in the assembly was ordered]. 17Supra note 1, Tenth Schedule, Provision as to disqualification on ground of defection, 1985.

111



surmises.

V. Conclusion

Despite taking much care of keeping the process free from limitations, it seems nearly

impossible to make it foolproof. A probable threat that remains active is floor crossing of both,

the independent members and the members associated with any party. Besides all, it attaches to

itself the risk of incalculable loss of not having any group claiming majority which renders the

whole process of elections nugatory and eventually, re-elections may be held. However, it may

be noted that the same clouds also loom over the process of conventional floor test being

followed till date.

In the alternative, it is opined by the author that an answer to the same lies in emergence of “no

party democracy”. It may, at the offset, be processed that this ostensibly complicated technique

ought to be initially experimented just in case of State assembly elections. All the members along

ought to run the state and delineation to the Council of Ministers ought to be created in

accordance with the quantity of votes in favour of a faction and also the Chief Minister ought to

be from the single largest party. To conclude, it may be clearly stated that the preceding

paragraph is merely an idea intended to protect the Constitutional values in true sense. It may

seem to be illogical or a passionate idea of utopian world at first but it is high time that the

proposition “floor test at the whims of the Governor is the penultimate test” in such cases should

be revisited to get rid of the unhealthy political collusions leading to defections.

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Application of Value Added Tax in Goods & Services Tax: Issues & Concerns

Aastha Pandey and Ritesh Kumar1

Abstract

The research paper is mainly focused on how the VAT structure has been used to include the

GST structure. The researcher will, first, analyse the history of both VAT and GST. Then,

the differentiation between GST and VAT would be observed. There can be an assumption

that there is very little difference between VAT and GST but the Indian legislature has been

endeavouring for a long time to introduce some effective methods of indirect taxing which

will benefit both, the Government and the taxpayer. A major change after the introduction

of GST has been the removal of the cascading effect which was there in the VAT model.

However, it can be observed that the GST model introduced is somewhat based on the VAT

model. The researcher will also explore the European model of VAT and GST; how these

models have been developed over time; how the Indian model of GST and VAT is similar to

that of the European model and the different case laws decided by the European Court. The

researcher will focus on the basic difference in interpretation of the Courts. The basic

difference that VAT is a consumption-based tax whereas GST is a supply-based tax will be

elaborated further.


I. Introduction

As the name suggests, a value-added tax (VAT) implies a tax on the value addition. In the

context of an indirect tax, VAT on a business implies a tax on value addition by the business.

Thus, a VAT model presupposes the determination of value added by the business to assess the

tax base. There are a number of models to determine such a valuation. However, what is

common among these models is that the value of the supplies used by the business is excluded,

by deduction method, credit method or otherwise, such that the tax imposed on the business is

directly proportional to the value added. The VAT model, therefore, ensures against the

cascading effect of taxes by ruling out the taxes paid by a business on its input supplies from

being considered for assessing the levy on its output supplies.

VAT model has another critical facet which is the levy of tax at all stages of value addition.

Barring cases which are specifically excluded (on account of de minimis threshold or for other

policy reasons), value addition at each level of the supply chain is subject to levy under the VAT

model. The levy, therefore, is multi-staged unlike a single-point tax which applies only on a pre-

identified point of supply. The aforesaid aspects entail a number of allied features of a VAT

model. Firstly, the provision of credit/deduction of tax on input supplies ensures that the business

remains neutral from the tax system. Thus, the business choice of any supply’s source, etc., is not

influenced by the tax system. This feature is also known as the principle of fiscal neutrality.

Secondly, a typical VAT system permits collection of tax from the recipient of output supplies,

i.e., the consumer, and thus the incidence of tax is given by the consumer. Thus, the VAT system

is generally associated with tax based on consumption. Thirdly, a value-added tax model

1Aastha Pandey, Fifth Year, Gitam School of Law, Visakhapatnam. Ritesh Kumar, Fifth Year, Damodaram

Sanjivayya National Law, University, Visakhapatnam

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presupposes “border-adjustable taxes”, i.e. the ability of VAT system “to rebate these taxes on

exports and impose them on imports.”2Thus, “destination” based principle of taxation usually

accompanies, though not as a mandatory rule, a VAT model.

II. Appraising the Policy Rationale for Adoption of Vat Model in GST Design

A VAT model appears to be the craved choice for the indirect tax regime in India. The White

Paper on VAT, which was the precursor of the switch-over from sale tax/purchase tax model to

State levying both on VAT models, positioned the latter as a superior model, inter alia stating as

under.3Not only will the VAT include full set-off for input tax and tax on previous purchases, but

it will also reduce the burden of several of the existing taxes, such as turnover tax, sales tax

surcharge, additional surcharge, special additional tax, etc. Therefore, Central Sales Tax will also

be phased out. As a result, the overall tax burden and the cost, in general, will be rationalized and

will fall. In addition, VAT would replace the existing inspection system with an integrated self-

assessment system by traders and producers. The tax structure is going to be simpler and more

transparent. This will significantly improve tax compliance and will also lead to an increase in

the revenue of the state.

Right from the conception of the idea, GST was envisaged as a value-added tax. The first

Discussion Paper propounded the rationale for GST on the following terms. Furthermore, any

commodity, in general, is produced on the basis of physical inputs as well as services, and there

should be an interrogation of VAT on goods with taxes on services at the state level as well; at

the same time, there should be a deletion of the cascading effect of service tax. In GST, both the

cascading effects of CENVAT and service tax are removed with a set-off, and a continuous set-

off chain is established from the point of the original producer and the service provider up to the

level of the retailer which reduces the burden of all the cascading effects. That's the nature of

GST, and that's why GST is not just a VAT and a service tax, but an upgrade over the old VAT

or the disjointed service tax regime.

GST is an expense on products and ventures with far-reaching and constant chain of set-off

advantages from the maker's point and the specialist organization's point up to the retailer's level.

It is, basically, a duty on esteem expansion at each stage, and a provider at each stage is allowed

to set-off, through an expense credit instrument, the GST paid on the acquisition of the

merchandise and ventures as is accessible for set-off. Along these lines, the last customer will

just bear the GST charged by the last vendor in the inventory network, with set-off advantages at

all past stages.

The finer nuances of the value-added tax regime were also addressed by the Task Force on GST

in its Report in the following terms:4For successive taxpayers who are able to subtract input tax

on transactions and compensate for production tax on revenues, the value-added tax system is

based on tax collection in a structured cycle- a company in the supply chain is involved in the

process of managing and collecting tax, turning over the proportion of tax relating to the sales

2 Alan Schenk & Oliver Oldman, Value Added Tax- A Comparative Approach 18 (Cambridge University Press,

2007). 3 Empowered Committee, A White Paper on State-level Value Added Tax (2005) 4 13th Finance Commission, Report of the ‘Task Force on GST’ (Dec. 15, 2009).

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profit, or the disparity between the VAT paid to distributors and the VAT charged to consumers.

In fact, many nations with a value-added tax system enforce taxes at each and every level which,

usually, require all but the final customer to automatically subtract taxes on transactions. These

characteristics give value-added taxes their main economic advantage, neutrality. The total

ability to subtract taxation on production by way of a supply chain, except for the consumer at

the end, guarantees tax transparency (regardless of the quality of the item), a chain of the

distribution system and the methods applied to distribute it.

Globally, VAT is based on the concept of destination which helps the tax to preserve its

independence in global exchange. This VAT on goods is usually paid at a similar period as the

duties levied by Customs, however, the payment is deferred in some countries until it is recorded

on the next VAT return of the importer. Deductible of foreign VAT, including input tax

deduction on domestic supply, guarantees fairness and does not hinder global trade.

Upon consideration of the competing variables, the Task Force on GST also suggested the

adoption of “a consumption type value-added tax based on destination principle where exports

will be zero-rated and all imports will be subject to the levy like the other goods and services

domestically produced and consumed” as in its view a “the most sophisticated way for removing

inequalities and regulating demand is a value-added tax on each and every service and goods,

whereby, ‘all the various phases of production and distribution can be understood as a pure tax

pass-through,’ so tax classification can, basically, be interpreted as a mere revenue pass-through,

and taxation, ultimately, can 'stay' on final sales within the taxing authority.”

The Task Force on GST extended another rationale for the adoption of a VAT model for GST,

which is its ability to align informal economy into the mainstream on account of the

disincentives it creates for the dealings with the informal economy. This aspect was addressed in

its report in the following terms:

The switchover to GST also entails the taxation of all goods and services in the formal sector. To

the extent of purchases made from the informal sector by producers in the formal sector, no input

tax credit would be available. Consequently, the value addition of the informal sector on such

inputs would be recaptured when used in the formal sector. Similarly, to the extent purchases are

made from the formal sector by the informal sector, they will be GST borne and since no output

tax will be payable by the informal sector, the tax will apply on the producer. Therefore, a

comprehensive consumption oriented, destination-based GST will also result in a higher tax

burden on the informal economy than the present level. Hence, the switch over to a ‘flawless’

GST will improve horizontal equity.

Albeit not directly, the Parliamentary Standing Committee on Finance also noted the salient

features of the GST design as a value-added tax model in its report in the following terms:5The

institution of GST is a logical climax of the process of reformation of tax which includes the

switch to CENVAT, the levy of service tax and the formation of state VAT from sales tax. The

tax base would be integrated by removing many of the taxes imposed by both the Center and the

States and allow input tax credit to flow smoothly through the value chain of goods and services.

This would remove numerous taxes, tax cascading, and in-toto streamlining of the system of

5 Parliament’s Standing Committee on Finance, 73 Report (Aug. 7, 2013).

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indirect taxation. Consistently, input tax credit will result in lower costs of goods and services.

The Rajya Sabha Select Committee also acknowledged this design of GST in its report6, even

though it did not adopt a proposal to formally define GST as “a multi-stage destination-based

value-added tax on supply of goods, or services, or both, and levied as per the framework

recommended by the GST Council.”

The aforesaid discussion clearly reveals that at a policy level, there was unanimity that the GST

regime would be premised on a value-added tax model. Furthermore, the salient features of the

VAT model for the GST regime were also acknowledged with consensus. However, there is

nothing in the text of the 2011 Amendment Bill, the 2014 Amendment Bill or the Constitution

Amendment Bill which explains the nature of the new legislative field of “goods and services

tax” inserted in the constitution exception for a definition which provides that it would be a “tax

on supply”. There is no indication as to the attributes of the GST. Is it fatal? Does this imply that

GST is not a value-added tax? The answer is in negative. The role of the legislature is to

legislate. It is the role of the judiciary to determine, inter alia, the competence of a legislation, the

subject-matter of the legislation and the constitutional empowerment leading to its enactment.7

This system ensures that the consumer should pay the final tax but a good tax credit system

guarantees that there is no repeating of taxes. GST will unify all taxes to establish a single

system across the country to avoid charging various taxes such as excise duty and sales tax at the

federal level and VAT at the state level. Integrating different taxes into a GST system will result

in an effective credit cross-use. The contemporary tax production system and the purpose of GST

is tax consumption. GST includes tax on each point of sale and purchase in the value-added

supply chain. With respect to tariffs, it does not make any difference for goods and services. It

also provides full credit for input tax. It's a tax based on consumption. It is a tax made on supply

of goods and supply of services. Supply of goods means the right is transferred to the person to

use the goods and in case of services, to utilize the services. Tax is levied on the addition of

values. Thus, the tax is calculated on the total value and after that, a credit of input tax is paid

and it is given till the goods or services are supplied to the person who gets the final product or

services, who does not even benefit from the input and pays the full cost of goods or services.

The proposed tax on goods and services (GST) is viewed as India's largest single indirect tax

overhaul and is supposed to implement a simplified tax structure, a seamless credit chain. For

online marketplaces, the principle of ' one levy, one market ' on which GST is centred should be

a welcome step. In order to create transparency about the treatment of transactions in the online

marketplace, sector-specific provisions must be incorporated in the GST process. This is very

significant, but it's just the first of the two measures. The next key step is for the government to

meet with these requirements. Businesses will have to pursue the ' full-of-business ' strategy for

GST impact assessment and execution, whereby, the company and tax consultation teams work

together to provide consumers with a streamlined product that encompasses all the business

aspects they want.

On July 19, 1976, the Indian government had set up the Indirect Tax Enquiry Committee under

6GST will broaden the tax base, and result in better tax compliance due to robust IT infrastructure. Due to the

seamless transfer of input tax credit from one stage to another in the chain of value addition, there is an in-built

mechanism in the design of GST that would incentivize tax compliance by traders. 7Federation of Hotels & Restaurants Assn. of India v. Union of India, (1989) 3 SCC 634.

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the chairmanship of Sri L.K Jha to study the entire Indian Indirect Tax Process structure. The

committee conducted a comprehensive study of the occurrence of Indian Indirect Taxes, the

issue of multiplicity of rates, etc., and proposed a collection of 4 Excise Rates, implementation of

Value Added Tax (VAT) at the manufacturing level, named MANVAT, to address the problem

of the cascading impact of Excise Taxation.8

III. Deriving the Principles from European Community’s VAT Regime

The concept of VAT is elaborately addressed in the European Community’s VAT regime. The

First Council Directive “on the harmonization of legislation of Member States concerning

turnover taxes”9 recognized that “a system of value-added tax achieves the highest degree of

simplicity and neutrality when the tax is levied in as general a manner as possible and when its

scope covers all stages of production, distribution and the provision of services”.10In this

background, the First Council Directive specifically stipulated the following:11

The principle of the common value-added tax system involves applying a general tax on the

consumption of goods and services which is exactly proportional to the price of goods and

services, regardless of the number of transactions that take place in the production and

distribution process before the tax is charged. VAT is measured on the price of the goods or

services at the level applicable to those goods or services and shall be paid on each purchase

upon elimination of the amount of value-added tax specifically incurred by the different cost

components. The aforesaid is a crucial manifestation of two critical principles underlying the

VAT regime. These are as follows:

(1) The tax must be based on “the number of transactions which take place in the

production and distribution process before the stage at which tax is charged.”

(2) The exact proportion principle is achieved by charging the VAT, inter alia, “after

deduction of the amount of value-added tax borne directly by the various cost components”.

(3) The current legal regime of the European Community, i.e., the Council Directive, “on

the common system of VAT”12, adopts the same principles13 to exemplify this aspect much

further when it states as under: Achieving the goal of establishing an insider market presumes

that the Member States have adopted an enactment on turnover taxes that does not worsen trade

constraints and create obstacles for the free flow of goods and services. Therefore, it is important

to reach such a congruity with respect to the enactment on turnover taxes through a system

(VAT) that will eradicate, as far as possible, factors that can affect market conditions, whether at

a national or a local level.

(4) A VAT scheme enjoys the best efficiency and fairness when the tax is levied as

broadly as possible and when identical goods and services in each Member State have the same

tax burden, without giving thought about the production or distribution chain.

(5) Even if there is no harmony between the rates and the exemptions, the usual system of

VAT should neutralize the competition, so that same goods and services carry similar tax burden

8 Indirect Tax Enquiry Committee, 1976. 9 Harmonisation of legislation of member states concerning turnover taxes, First Council Directive 67/227/EEC

(1967). 10Preamble, Goods & Services Tax Act, 2017. 11 Tarun Jain, Goods and Service Tax- Constitutional Law and Policy 307, (EBC Publication, 2018). 12 Directive 2006/112/EC (1967). 13 Id. art. 1(2).

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within the territory of each Member State, without any second thought about the production and

distribution chain.

In the aforesaid context, the European Court culled out the “essential characteristics of VAT”

stating, inter alia, as under;14

“VAT generally applies to transactions involving goods or services; it is

proportionate to the price of those goods or services, irrespective of the number of

transactions taking place; it is charged at each stage of the production and

distribution process; and finally, it imposes on the value added of goods and

services, the tax payable on a transaction calculated after deduction of the goods

and services.”

The attributes of this design can, thus, be enumerated as under:

1. This tax is, basically, levied on transactions relating to goods and services.

2. The tax is “proportional to the price of those goods or services” and such proportionality

is not disturbed by the “number of transactions which take place”.

3. Even though the “tax is charged at each stage of the production and distribution process”,

it is, in actuality, levied only on the value added to the goods or services by the supplier

as the tax is payable by the supplier “after deduction of the tax paid on the previous

amount”.

Therefore, insofar as the supplier or the business subject to VAT is concerned, VAT imposition

is solely determined by its ability to deduct the tax paid on the previous transaction. This is

achieved by the deduction method or the input-tax credit mechanism which is a pivotal

mechanism for the operation of VAT. The VAT system “precludes the application of a taxation

arrangement wherein VAT is determined only once on the price of the first market stage” in view

of the “fundamental principle which underlines the VAT system that VAT applies to each

transaction by way of production or distribution after deduction of the VAT which had been

levied directly on transactions relating to inputs.”15

In the European context, since the idea is to impose tax only on the value added by the supplier,

businesses have been held entitled to deduct the tax paid on input supplies even if at a later date,

the supplier is exempted from taxes. The entitlement to tax must not be retroactively withdrawn

as they are “contrary to the principle of legal certainty w.r.t. the rights and obligations of taxable

persons,” and more importantly, it would be contrary to the principle that VAT should be neutral

with regard to the tax burden on businesses”.16

Upon application of these principles and other related principles, the European Court has

declared that a tax which is applied only once in a supply chain, is without a right of deduction of

such tax and which forms part of the supply chain is not a value-added tax.17 It has also been

declared that a tax that was “not intended to attach to all economic transactions” and instead, is

charged once and applies “only to a specific service” does not exhibit the characteristics of a

VAT.18It does not, however, follow that there cannot be a system of exemption, thereby,

14 Fazenda Publica v. Solisnor- Estaleiros Navais SA, (1997) ECR I-05053. 15BP Supergas Anonimos Etairia Geniki Emporiki- Viomichaniki kai Antiprossopeion v. Greek State,

ECLI:EU:C:1995:223. 16 Intercommunale voor zeewaterontizilting (INZO) v. Belgian State, ECLI: EU: 1996:67. 17 Wissenlink en Co. BV v. Finanzant Paderborn, ECLI:EU:C:1989:324. 18GIL Inssurance Ltd. v. Commissioners of Customs & Excise, ECLI:EU:C:2004:252.

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rendering the supplier without a right to deduction of input tax. As the European Court held,19

the system of exemption is, legally, a part of the VAT regime and cannot be found at fault with it

even if they are “contrary to the principle of fiscal neutrality, since it breaks the chain of

deductions and increases the fiscal charge”.20

1. GST: A Tax Based on a VAT Model

The aforesaid reflections under the EEC VAT regime have been echoed by Indian courts as well,

though, not with the same resonance. According to the Supreme Court, Value-Added Tax

implies “a general tax that applies, in principle, to all commercial activities involving the

production of goods and provision of services. VAT is a consumption tax as it is borne by the

consumer.”21 Reflecting upon the rationale of the shift from the sales tax/purchase tax regime to

VAT regime in the State legislation, a number of High Courts have also endorsed this basic

design of a VAT model.22Noting the nuance of a “value-added tax”, as contrasted with

“turnover taxes”, the Supreme Court had delineated the economic understanding of the concepts

in the following terms:23

It appears to be quite intriguing that ‘Value Added Tax’, famously referred to as VAT, is

imposed in some Western countries as an addition to sales tax. Professor Paul A. Samuellson

explains the difference between ‘Value Added Tax’ or income and consumption tax on revenue

in his novel24 as follow; Every transaction is taxed under a turnover tax. Although VAT is

different because it does not levy tax on the miller’s flour for the part of the value that came from

the wheat bought from the farmer.25 Instead, it taxes him only on the wage and salary cost of

milling and on the interest, rent, royalty, and profit coast of the milling stage of production. (That

is, the costs of raw materials used in the earlier stages are subtracted from the miller’s selling

price by calculating the value of ‘value added’ and the VAT tax on value added.)

Further, the VAT model has been declared to work on the principle of equivalence26 which

operates inter se the levy of VAT on goods and services, i.e., “just as exercise duty is a tax on

value addition on goods, service tax is on value addition by rendition of services”.27 Thus, in a

VAT model, there is no conceptual distinction between the supply of goods and services, and a

tax on rendition/consumption of services is also a value added tax.

The GST legislation adopted the VAT model and sought to relieve businesses of taxes on their

input supplies by following the “credit system”.28 Thus, the GST legislation provides for

19 Belgocodex SA v. Belgian State, ECLI:EU:C1998:589. 20 “The input tax credit is in the nature of “concession” granted.” Jayam & Company v. Comm, (2016) 15 SCC 125. 21 All-India Federation of Tax Practitioners v. Union of India, (2007) 7 SCC 527. 22 Sony India (P) Ltd. v. CTT, 2015 SCC Online Del 10811. 23 State of Karnataka v. B. Raghuram Shetty, (1981) 2 SCC 564. 24 Economics 168 (10th ed., 1976). 25 State of Karnataka v. B. Raghurama Shetty, 1981 AIR 1206. 26 All India Federation of Tax Practitioners v. Union of India, (2007) 7 SCC 527; Assn. of Leasing & Financial

Service Companies v. Union of India, (2011) 2 SCC 352. 27 “Service tax is a “consumption tax is being not a charge on business but on consumer and is leviable on service

provided” and thus it is a value added tax.” ShubhTimb Steels Ltd. v. Union of India, 2010 SCC Online P&H 1186. 28 Central Goods & Service Tax Act, 2017, §16 illustration.

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determination of value addition of a business by way of granting credit for the taxes on the value

addition to built-in input supplies used by the business for providing its output supplies. As the

Government has endeavoured to explain, GST “follows a multi-stage collection mechanism”

where the “tax is collected at every stage of transaction”.29 Out of the various types of VAT

models, the GST legislation has adopted “invoice-based” VAT regime in as much as the

availability of credit of input taxes is stipulated and if the business “is in possession of tax

invoice or debit note issued by a supplier registered under this Act.”30By this mechanism the

GST regime aims to attain the global principle enshrined in the First Discussion Paper, i.e., GST

would “essentially be a tax on value addition to each stage” wherein the “supplier can, at each

point, set the GST charged on the purchase of goods and services as available for set-off on the

GST payable on the supply of goods and services through means of a tax credit system,” and,

therefore, only the GST charged by the last dealer in the supply chain along with set-off benefits

at all previous stages will be borne by the final consumer. However, the right to deduction, i.e.,

the credit of input taxes under the GST legislation, is not unconditional and is subject to a

number of “conditions and restrictions”.31

By bringing within its scope all suppliers of goods and services excepting those who are

specifically excluded (on account of tax threshold or for other policy reasons), the GST

legislation retains the avowed characteristic of VAT, thereby characterizing GST as a multi-

staged tax covering within its scope value addition 32 and zero-rated exports33, and thus, also

adopting the destination-based principle which generally accompanies VAT model. This reveals

that the tax charged under the GST legislation is indeed a tax on value addition, even though in

its current form it may not be able to provide for levy of tax in a way that’s “exactly

proportional” to the value added by each stage of the supply chain, principally on account of the

restrictions and conditions imposed on the availability of credit of input taxes.

2. Fiscal Neutrality: Deriving the Concept from European Community’s Value Added

Tax Regime

The GST legislation reflects a marked shift of parliamentary stand vis-à-vis value-added taxes. It

is for the first time that the concept of input tax credits has been legislated in a parliamentary

enactment. Until now, the provisions to permit deduction of tax paid on inward supplies were left

to the discretion of the executive government and were rolled out in the form of subordinate

legislation.34 By contrast, the concept of input tax deduction has received the attention of State

Legislature for more than a decade and drawing from the White Paper on VAT,35 the state Value

Added Tax legislation themselves provided for input tax deduction. However, on account of the

illustration under Section 16 of the Central Goods and Services Tax Act, 2017, it is for the first

time that taxable persons are conferred a legislative right to such deduction under parliamentary

laws. Owing to the diverse rules and the distinguished setting of the credit rules under the

existing legislation, the development of jurisprudence on the subject in India does not reveal a

29Press release on July 11, 2017, available at http://pib.nic.in/newsite/PrintRelease.aspx?relid+161273. 30 Central Goods & Services Tax Act, 2017, § 16(2)(a). 31Id., at § 16 illustration. 32 Integrated Goods & Services Act, 2017, §§ 5(1), 7(2) & 7(4). 33 Id., at §16 (1)(a). 34 CENVAT Credit Rules, 2004. 35 Empowered Committee, White paper on State-level Value Added Tax (2005).

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consistent policy-laden approach. However, the European Community’s VAT regime has

addressed the issue in detail and therefore, it is expedient to examine the state-of-affairs arising

from the legal position expounded by the European Court.

The Sixth Council Directive, for “the harmonization of laws of the Member States relating to

turnovers taxes- Common System of value-added tax: uniform basis of assessment”36

specifically enacted the right to deduct whereby the taxable person was “entitled to deduct from

the tax which he is liable to pay”, inter alia, the “value-added tax due or paid within the territory

of the country in respect of goods and services supplied or to be supplied to him by another

taxable person.” 37 The current legal regime of the European community, i.e., the Council

Directive declares that “the common system of value-added tax,”38 similarly, offers a legal right

to deductions to the taxable person.

Such is the importance assigned to these provisions that “the right of taxable persons to deduct

VAT due or paid on goods purchased and services received as inputs from the VAT which they

are liable to pay” is declared as “a fundamental principle of the common system of VAT

establish by the EU law” which is “an integral part of the VAT scheme and, in principle, may not

be limited”39 The rationale for such protection of the right is the underlying conceptual

foundation that the “deduction system is intended to relieve the trader entirely of the burden of

VAT payable or paid in the course of all his economic activities”40 On such a premise it has been

held that the “question whether the VAT paid to the public purse is irrelevant to the right to a

taxable person to deduct input VAT.”41 It is, now, a settled legal position under the EU law that

“the principle of fiscal neutrality precludes treating similar goods and supplies of services which

are, thus, in competition with each other, differently for VAT purposes”.42

The decision of the European Court in Rompelman43enlists a number of key attributes of this

design. The decision (1) indorses the right to deduction as a basic element of the European

Communities’ Value Added Tax regime, (2) clarifies that the tax system permits the levy only

after the deduction of the tax on the various components comprising the supply and, (3) limits

the right to deduction only to taxable persons, thus, ensuring that the tax is borne by the

consumers of the supply. By, inter alia, these tenets, the decision expounds that the tax system

“ensures that they are themselves subject to VAT and are taxed in a wholly neutral way” and

thus, the concept of fiscal neutrality emerges as a foundational element of the value-added tax

system. In this case, therefore, the European Court upheld the claim of input tax deduction on

account of “acquisition of a right to the future transfer of property rights, in part, of a building

yet to be constructed, with a view to let such premises in due course” as according to the

European Court, “the principle that VAT should be neutral as regards the tax burden on a

business requires that the first investment expenditure incurred for the purpose of and with the

36 Sixth Council Directive 77/388/EEC (1977). 37 Constitution of India, art. 17. 38 Directive 2006/112/EC (2006). 39Compass Contract Services Ltd. v. Commissioners for Her Majesty’s Revenue and Customs, ECLI:EU:C:2017:

454. 40 Bonik Eood v. Direcktor, ECLI: EU: C: 2012: 774. 41 Id. at para 28. 42 Commissioners for Her Majesty’s Revenue and Customs v. Ranks Group Plc. ECLI: EU: C: 2011:608. 43 D.A. Rompelman v. Minister van Financien, ECLI: EU: C: 1985:74.

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view to commence a business must be regarded as an economic activity” and it “would be

contrary to the principle if such activity did not commence until the property was actually

exploited, that is to say, until it began to yield taxable income”. In short, the European Court

invoked the principle of fiscal neutrality to uphold the right to deduction in respect of pre-

commencement input supplies.

The decision in Fini44presents a vital insight into the expanded contours of this right to deduct.

Fini was a partnership firm constituted with the object of running a restaurant. For this purpose,

it took a premise on lease for 10 years in the year 1988. It closed the restaurant business in 1993

but owing to the set terms, the lease expired in 1998. During this period, Fini remained

registered under tax provisions and “continued to deduct input tax paid by it on the costs incurred

in relation to the lease in question, namely the rent, heating, electricity and telephonic charges.”

The deduction was disputed by the tax authorities. Relying upon its earlier decision, the

European Court affirmed the legal position that (1) preparatory acts must be regarded as

economic activities, (2) any person performing such preparatory acts would, consequently, be

regarded as a taxable person and, (3) “entitlement to deduct is retained, even if it is subsequently

decided, in view of the results of profitability study, not to move to operational phase but to put

the company into liquidation, with the result that the economic activity envisaged does not give

rise to a taxed transaction”.

It is, however, noteworthy that the principle of fiscal neutrality does not come in the way of

differential rate fixation for supplies. The European Court acknowledges that “the principle of

fiscal neutrality precludes treating similar supplies of services, which are, thus, in competition

with each other, differently for VAT purposes” but, “as the Court has repeatedly made clear, that

the principle does not extend the scope of a reduced rate in the absence of a clear wording to that

effect”45 Meaning, thereby, that those subjected to higher incidence of tax on account of

differential rates cannot invoke the principle of fiscal neutrality so as to claim the concessional

tax effect.

IV. Conclusion

To conclude it can be said that GST which had been introduced two years back is a better form

of VAT, which is beneficial for both the consumer and the Government. The basic aim of the

Government was to enact taxation legislation which will lead to a win-win situation. The

cascading effect which was there in the case of VAT was removed with GST and the taxation

was made based on the supply of goods and services. The various models of VAT created

confusion and were not beneficial for all. The European taxation system has observed that the

GST model, which is a better form of VAT, removes cascading effect or the repetition of taxes.

It is a destination-based tax which will be uniform and would reduce the burden of paying tax at

numerous places. The GST in India also uses the VAT model and has applied the credit system.

It can be said that the VAT model has been improved and is presented in a better way to collect

indirect tax, which is why the application of VAT is found in the GST model of India.

44 Fini H. S. Skatteministeriet, ECLI: EU: C: 2005:128. 45 Etat Belge v. Oxycure Belgium SA, ECLI: EU: C: 2017:189.

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Hub and Spoke: An Analysis of the Existing International Scenario and the

Draft Competition Amendment Bill 2020

Anumeha Agarwal and Akanksha Singh1

Abstract

Recently, there has been a lot of public debate about amendments to the Competition Act,

2002 and due to the dynamic changes in various industries questions have been raised about

the competency of Competition Commission of India to provide solutions to issues emerging

in the field. Due to this The Ministry of Corporate Affairs has drafted Competition

(Amendment) Bill, 2020 and kept it open for public comments. Amongst various changes, it

also addresses a new issue of Hub and Spoke Agreements. Traditionally the anticompetitive

agreements have been divided into two types, horizontal and vertical agreements; however,

hub and spoke agreements have some characteristics of both them but do not strictly fall

under either of the categories. This paper analyses the hub and spoke agreements, its

economic effects and the market at large. The proposed amendment is scrutinized by

discussing its advantages and disadvantages, and a comparative analysis with other

countries like USA, United Kingdom, Germany, Poland, Russia and the EU is drawn. Lastly,

the paper suggests few pragmatic measures to resolve the expected complications especially

w.r.t. the amendment’s implementation.

Keywords: Horizontal Agreements, Vertical Agreements, Hub and Scope Agreements, Draft

Competition Amendment Bill, 2020 and, Economic Effects.


I. Introduction of the Concept

Hub and Spoke (“H&S”) agreements are a combination of two anti-competitive agreements, a set

of vertical agreements, all having a common party (the “hub”) and a different party for each

agreement (the “spokes”). The spokes are competitors operating at the same level, whereas the

hub is at a different level at the production chain. The second anti-competitive agreement is

among the spokes, under which they transfer information to each other or collude in any other

manner via a hub, which removes the need for direct communication. However, mere proof of

direct communication does not diminish the hub’s role in the arrangement. The term ‘hub and

spoke’ is derived from the analogy of a wheel, where the participants in the same level of the

production cycle are spoke of the wheel, the participant which is either the common supplier or

the retailer is the hub of the wheel and the agreement is the rim of the wheel, thus making it a

functioning mechanism.

a. Difference between Horizontal Agreement and H&S

A horizontal agreement has not been defined exhaustively in the Competition Act, 2002 (“the

Act”), but a broad understanding can be drawn of it as an agreement among enterprises engaged

in similar or same businesses. It includes cartels, and other agreements to determine prices, limit

production, share the market, bid rigging2.A cartel has been defined as an agreement among

competitors to eliminate competition3, it can be achieved by regulating the production,

1Anumeha Agarwal and Akanksha Singh - Fourth Year, Symbiosis Law School, Pune. 2The Competition Act, §.3(3), (No. 12 of 2003). 3 D.L. Kaseman and J.H. Mayo, Government and Business: The Economics of Antitrust and Regulation (Fort

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distribution, price or sale of the commodity4 or by any other manner to achieve monopoly5.

All the members of a horizontal agreement are at the same level in the production chain which is

not the case in the H&S agreement, where the hub is necessarily at a different level than that of

spokes.

Another difference is that often such agreements aim to obtain a monopoly in the market, which

is rare in H&S agreements due to the different markets H&Ss function in. Furthermore, it is often

in the retailer's interest that the competition in the producers' market thrives as a result of which

it will get the best commodity at the most competitive price. Thus, achieving a monopoly by

either hub or spoke may be counterproductive in the long run.

b. Difference between Vertical Agreements and H&S

A vertical agreement is an agreement among enterprises at different stages of the production

chain that causes Appreciable Adverse Effect on Competition (“AAEC”).The most obvious

distinction between a vertical and an H&S agreement is that not all the members are not

operating on the same level of production, the spokes are also each other's competitors. This is

the primary reason why horizontal agreements are by default anti-competitive whereas AAEC

has to be established for vertical agreements. However, since H&S is a combination of both the

determination of which standard of proof is applicable is a point on which many jurists have

different opinions.

c. Characteristics of an H&S Agreement

Commonly the H&S arrangements have three characteristics; the first characteristic is the

horizontal agreement amongst the spokes, similar to a cartel. To prove its existence, the evidence

is required of the cartel members' coordinated behaviour and the communication amongst them.

The H&S arrangement eliminates the need for direct communication among the spokes, making

tracing such an exchange of information more difficult.

The second characteristic of such arrangement is the vertical agreements between the hub and

individual spokes, these agreements result in an exchange of information which in the ordinary

course of business is legal and may even be pro-competitive, but in H&S arrangements, the aim

of such communication is that hub forwards such information to other spokes which aids

coordinated anti-competitive actions.

And the last characteristic is economic benefits the parties seek to achieve through the H&S

agreement.

d. Types of H&S Agreements

Pure H&S Agreement: In pure H&S agreement the hub acts as a medium of communication

between the competitors. It only enables the cartel formation and is not a part of the same in any

Worth: The Dryden Press, 1995) 152. 4The Competition Act, §.2(c), (No. 12 of 2003). 5UOI v. Hindustan Development Corporation, AIR 988 (SC: 1994).

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other capacity. Conduct of the parties, the market, etc will determine any restriction or adverse

effect on the competition

Mixed H&S Agreement: In a mixed H&S agreement the hub not only enables horizontal

restraints but also imposes vertical restraints. For example, the hub in addition to exchanging

information may also impose vertical restraints such as Resale Price Maintenance (“RPM”), tie-

in arrangements etc. in order to facilitate the horizontal agreement or for its own benefit. It not

only facilitates collusion but also takes part in the same.

II. Economic Analysis of H&S Arrangement

An analysis of the economic aspects of the H&S arrangement can be drawn by keeping in mind

two basic principles. First is the foundational principle of economics, the direct proportionality

between the demand and price, and the inverse relation between the supply and price. The

second principle is the positive impact that competition has on the market, including a boost in

productivity, increased efficiency, fair competitive prices, fostering international competitiveness

and innovations, and promoting economic growth and dynamic markets. The possibility of

monopoly can be counterproductive to H&Ss' economic interests on different levels of the

production chain, as a monopoly at any level will adversely affect the traders at other levels. For

example, A is a supplier of a commodity 'R' and is acting as a hub for B, C and D who are the

producers of R. If as a result of such an arrangement, the market of production of R becomes an

oligopoly and with the spokes becoming the only viable producers, they will, in the long run,

increase their selling prices to increase their profits and A will have to accede to their conditions

due to a lack of alternatives. Similarly, if the market of supplier of R becomes a monopoly and

A becomes the only producer, the spokes will also need to submit to its demands.

a. Economic Incentives

Therefore it is imperative to understand the economic incentives for such arrangements, OECD

provides for four scenarios and the economic incentives available to H&S in each such scenario6:

The supplier responds to requests of retailers: Assuming the retailer isn't dominant in the market,

the supplier can either reduce the prices on the request of retailers, which will lead to an endless

downward spiral of increasing losses or it could facilitate standard or coordinated prices among

the retailers by an H&S arrangement. This will although, decrease the total sales, due to higher

prices but increase the earnings of both the supplier and the retailers than with uncoordinated

lower prices.

The supplier faces cost increases: Another possibility is where due to increased production

cost, the supplier has to increase the prices, and in a retailer competitive market, the only way

suppliers can increase the prices (with least opposition from the retailers) is by ensuring a

general price increase. This would be more probable in a market structure where the supplier has

considerable market power; the UK dairy case discussed later is an example of such a situation.

Supplier collusion: Here, the suppliers collude to fix the final retailing price rather than the

wholesale prices charged to the retailers due to their more predictable nature. In turn, the

6Organization for Economic Co-operation and Development (OECD), Roundtable on Hub-and-Spoke Arrangements

– Background Note, 25 November 2019, DAF/COMP (2019)14, (May 2, 2020: 13:10),

https://one.oecd.org/document/DAF/COMP (2019)14/en/pdf.

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retailers’ profits are also increased for their participation; an example of this can be the Apple e-

book case discussed later.

A powerful retailer promotes collusion on the supplier level: A powerful retailer may benefit

from a conclusion of the suppliers for increasing its market power, to ensure its market strategy

isfollowed by other retailers, to drive competitors out or to prevent new competitors to enter in

the market.

b. Larger Economic Effect on the Market

As mentioned above there are various incentives and benefits to the parties of an H&S

agreement, but such an agreement will inevitably have anti-competitive effects. According to the

theory of harm, such agreements will not only hamper economic development but also affect free

trade functioning in the market. Such coordinated practices will necessarily lead to an increase in

retail prices of the products/services, which will be against the interests of the consumers. As a

result, the demand may reduce and the consumers may look for alternatives, which in turn will

negatively impact the industry of the H&Ss. Sale volumes and the quality of the product may

also deteriorate, other non-price parameters may also get affected. In extreme scenarios, it may

ultimately lead to foreclosure of competition and the downfall of the said industry.

III. US Antitrust Law and H&S Conspiracies

a. Legislation

Three legislations are dealing with the American Antitrust regime namely, the Clayton Act, the

Sherman Act and the Federal Trade Commission Act (“FTC Act”).H&S has been held

punishable under the following sections under various cases by the Commission and the

Appellate Courts.

Section 1 of Sherman Act7 prevents all contract, combination in the form of trust or otherwise, or

conspiracy, in restraint of trade or commerce among the several States, or foreign

nations.8Section 5 of FTC Act9prohibits ‘unfair methods of competition’; including conduct that

violates Section 5 or any other antitrust laws. Criteria followed in pursuing such violations are,

substantial harm caused to competition, no precompetitive justification, and robust economic

evidence of the anti-competitive effects.10The enforcement body, Anti-Division of the US

Department of Justice can pursue criminal charges only if the parties intended to enter into an

agreement to restrain the trade, otherwise civil enforcement actions are pursued.

b. Important Cases

The H&S agreements have been a part of American anti-trust jurisprudence for the last eighty

years.

Interstate Circuit v. US11: The distributors (and owners) of the copyrights of a feature film

entered into an agreement with the eight first-run theatres. The agreement mandated the owners

7 Sherman Anti-trust Act 1890, §.1, 8 Sherman Anti-trust Act 1890. 9 Federal Trade Commission Act 1914, §.5. 10Maureen Ohlhausen, Section 5 of FTC Act: Principles of Navigation, (May 1, 2020: 12:10) 11Interstate Circuit v. U.S., 306 U.S. 208 (SC: 1939).

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do not share the show timing with any other feature film and while granting the licenses to

second-run theatres in Texas and New Mexico, mandate a minimum admission fee along with

exclusive show timings. The effect of such agreement was twofold, first, to protect the

distributors from the competition with other feature films being run at the same show timing and

second, to protect the first-run theatres from the second-run theatres by maintaining high prices

and requiring a minimum admission fee. All their actions seemed independent from each other

since there was no evidence proving otherwise. However, the Court dismissed the need for a

simultaneous action and held there was a deemed knowledge of the other owners’ participation.

Thus, the Supreme Court concluded that the contract and the conspiracy among the distributors

and theatres contravened Section 1 of the Sherman Act.

Theatre Enters. Inc. v. Paramount Film Distrib. Corp12: The case had identical facts, here,

however, the Court held that parallel vertical agreements without any proof of an agreement

among the competitors do not form an H&S agreement, and the agreement among the spokes is

the key component of the offence.

United States v. General Motors Corporation13: Here the defendant attempted to justify the

pro-competitive effect of the vertical agreement among the H&Ss, but the courts rejected it by

stating that such effect is overridden by the per se illegality of the horizontal agreement among

the spokes. Supreme Court upheld the mandatory requirement to prove a horizontal agreement

among spokes, to form an H&S agreement, whether by circumstantial proof or direct proof in

many cases14, it has been said ‘rimless wheels do not give rise to a hub and spoke conspiracy and

are not actionable’15. These cases are treated as merely several cases against the same defendant

and nothing more16Circumstantial evidence that proves the existence of a horizontal agreement is

called “plus factors” some of these are, sudden changes in business practice17 spokes actions

contrary to self-interest18, knowledge about the agreement with other spokes and thus expecting

reciprocal actions19.

Toy R Us case20: TRU was a dominant player in toy retailing industry, there were different toy

retailing stores like traditional stores with a high-profit margin, the general discounters which

had lower variety and the special discounted stores. TRU had monopolized the low price end toy

stores having the lowest prices for the toys. However, the innovation of warehouse clubs like

Costco and Pace TRU’s position was challenged, these stores stocked a variety of toys, and by

virtue of membership benefits sold toys at a much lower price than TRU.TRU then entered into

vertical agreements with the toy manufacturing giants by changing its policy and including the

following conditions:

12Theatre Enters., Inc. v. Paramount Film Distrib. Corp., 346 U.S. 537, 541 (SC: 1954). 13United States v. General Motors Corporation, 384 U.S. 127 (SC: 1966). 14NYNEX Corp. v. Discon Inc., 525 U.S. 128, 136 (2nd Cir: 1998); Bus. Elects. Corp. v. Sharp Elecs. Corp., 485

U.S. 171, 734) (SC:1988); Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 768 (SC: 1984). 15In re Insurance Brokerage Antitrust Litigation, 618 F.3d 300, 336 (3d Cir. 2010);

Dickson v. Microsoft Corporation, 309 F.3d 193 (4th Cir.: 2002). 16Dickson v. Microsoft Corp., 309 F.3d 193 (4th Cir. 2002); Guitar Centre, 798 F. 3d 1186, 1192 n.3 (9th Cir. 2015);

In re Insurance Brokerage Antitrust Litigation, 618 F.3d 300, 336 (3d Cir. 2010). 17 interstate Circuit v. United States, 306 U.S. 208 (SC: 1939). 18Toys “R” Us, Inc v. FTC, 221 F. 3d 928 (7th Cir.: 2000). 19United States v. Apple, 791 F.3d 290 (2d Cir.: 2015). 20Toys “R” Us, Inc v. FTC, 221 F. 3d 928 (7th Cir.: 2000).

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1) The clubs could promote a product only when carried the entire line,

2) TRU had the first right to refuse all exclusives, clearances, and closeout items sold to the

clubs.

3) There should be special packs containing old and basic products.

4) The prices were non-negotiable.

The TRU also communicated the enforcement to all the other manufacturers. The effect of these

agreements was quite evident, in the year prior to the introduction of such new policy the clubs'

share of all toy sales in the US increased from 1.5% in 1991 to 1.9% in 1992 and the year after

the toy sales dropped to 1.6% even when the overall clubs’ sales increased.

The Commission held that TRU involved in a variety of anti-competitive vertical agreements and

led the manufacture’s boycott of the warehouse clubs. In the appeal, TRU challenged that there

was insufficient evidence for proving the horizontal agreement, it was found where before the

TRU’s policy change the manufactures were planning to increase their supply to the warehouse

clubs post the policy they took measures to reduce it, which was contrary to their self-interest

and thus a plus factor.

The next argument on behalf of TRU was lack of its market power due to lack of share in the

manufacture’s market. The Court of Appeals rejected the argument as the market power can be

determined either by a dominant market share or by direct the effects of its actions as was seen

for the boycott, thus the boycotting firm can be deemed to have market power21.

The order prohibited TRU from entering into any vertical agreement with its suppliers due to its

repetitive violation. Additionally, TRU was prohibited from seeking information from suppliers

about their sales and from compelling suppliers to limit sales to any toy discounter.

United States v. Apple22: Amazon launched ‘kindle’ in 2007 and by 2009 it could be solely

credited for 90% of all eBook sales. It followed a wholesale model, wherein the publishers

recommended a digital list price and received a wholesale price for each ebook that Amazon

sold. In exchange, Amazon determined the retail price on Kindle. However, later it departed

from this model and for the new e-books and the New York Times bestsellers there was one

staple price of $9.99 which was the price that is paid to the publishers.

The six leading publishing houses namely, HarperCollins, Hachette, Macmillan, Random House,

Penguin and Simon & Schuster (“Big Six”) were troubled by such wholesale prices effect on the

print book market. They met once a quarter to discuss their common challenges; they even

adopted the practice of windowing23.

Apple planned to introduce its iPad with an e-book marketplace, ibookstore if the five publishers

of the Big Six agreed to adopt Apple’s Agency Agreement (“AAA”). Under AAA the publishers

would set the retailing prices of the e-books, of which 30% would be Apple’s commission. The

AAA had two more conditions, firstly, the prices will be realistic and secondly, the Big Six had

21Northwest Stationers Wholesale Stationers v. Pac. Stationery, 472 U.S. 284 (SC: 1985). 22United States v. Apple, 791 F.3d 290, 322 (2d Cir. 2015). 23 Windowing is withholding the eBooks till few months of the hardcover copies of the books being published, to

increase the sale of the printed books.

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to convert all their retailers of e-books to the agency model. Thus effectively solving the

competition Apple faced from Amazon without meeting the $9.99 pricing. Under this model,

there were three price caps with a minimum of $12.99, which were finalized only after

negotiations with the Big six.

Apple also had a Most Favouring Nation (“MFN”) clause requiring the publishers to give Apple

the best terms offered by them to any other e-book retailing store. By January 2010 five of the

Big Six (except Random House) adopted the Agency Model.

The courts held that Apple orchestrated the horizontal agreement among the publishers and thus,

the per se rule applied. As the horizontal agreements to increase prices are by default

unreasonable, the involvement of a vertical market player does not reduce its anti-competitive

effect. It rejected Apple’s argument of precompetitive justifications for horizontal price-fixing as

there was no productive relationship for the betterment of the market. Even after per se rule was

applied by the Court, the court further allowed a “quick look inquiry” of the rule of reason, under

which Apple’s contention of market entry to enable itself and also other retailers to have access

the market by eliminating Amazon’s $9.99 price point was rejected, along with an effect of “de-

concentrating” Amazon’s position by an essentially giving power overpricing to the Publisher

Defendants. Apple was also unable to prove any relation between the eventual decrease in eBook

pricing and its agreement with the publishers.

In the opinion of Lohier, Circuit Judge, and of Jacobs, Circuit Judge stated that the rule of reason

should be applied in H&S cases based on existing precedence.24Hon’ble Lohier J. found Apple

liable under the rule of reason Hon’ble Dennis J. absolved it from any liability. The dissenting

opinion of Hon’ble Dennis J, also stated that the Sherman Act was not violated by Apple, mere

increase in the prices post-Apple’s entry is not adequate to prove the anti-competitive behaviour.

Apple’s agency model is recognized as a legitimate tool to de-concentrate the e-book retailing

market and removing entry barriers along with monopolization. Amazon’s 90% monopoly and

below cost retailing price had its anti-competitive effects like capturing the market, maintaining

its monopoly and acting as a barrier to new entrants25.

IV. Jurisprudential Analysis

From the extensive discussion, a clear development of the concept of H&S conspiracies can be

witnessed, from the recognition of such agreements as parallel vertical agreements to the

understanding of H&S as a horizontal agreement facilitated by various vertical agreements. The

application of per se rule has been majorly accepted to these conspiracies however, the issue of

the relevant market is still left unanswered. Another issue that is not dealt with is of the liability

of the parties, whether the hub orchestrating the entire conspiracy is deemed to have a greater

liability or whether the liability is contingent on the involvement of the parties, or the parties are

liable under the conventional blanket liability same as of other anti-competitive agreements.

a. European Union’s Approach to H&S Agreement

24PSKS, Inc. v. Leegin Creative 8 Leather Prods., Inc., 615 F.3d 412 (5th Cir. 2010). 25United States v. Apple, 791 F.3d 290, 322 (2d Cir. 2015) (2-1) (Jacobs J. , dissenting).

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i. Legislation

Under the EU competition regime, the terms H&S have not been defined however they have

been indirectly mentioned in its Horizontal26 and Vertical guidelines27 and have been interpreted

to apply to the same.In Horizontal guidelines, Para 55 states that information can be exchanged

in two ways namely (i) directly shared between competitors or (ii) shared indirectly through a

common agency or a third party such as a market research organisation or through the

companies’ suppliers or retailers.The Vertical Guidelines also mention H&S agreements briefly.

It envisages the hub to be an upstream supplier. Para 224 of the Guidelines talks about RPM also

includes a scenario in which distributors who are strong may be able to persuade or even compel

the supplier/s to fix their prices above the level of competition and in order to get collusive

stability.

In EU Competition regime, it is a trend to recognize H&S agreements as concerted practices and

not per se agreements. The concerted practice may be described as a way of coordination

between undertakings which, without actually reaching the stage where it can be said to be an

agreement, and knowingly substitutes practical cooperation between them for the risks of

competition.”28 Such practices are punishable under Section 101 of the Treaty on the Functioning

of the European Union (“TFEU”). It prevents three types of practices namely arrangements

between undertakings or their associations and/or concerted practice which have anti-competitive

effects. Therefore in order to satisfy infringement of Section 101 the following conditions needs

to be proved:

1. An agreement or concerted practice must be present.

2. It should cause a restriction of competition.

3. It should not be exempted under Section 101(3) of TFEU.

ii. EU Judicial Approach

It is essential to point out that European Commission (“EC”) has not taken up any enforcement

action per se against any H&S agreements however there are some judgments in which indirect

coordination between competitors through the third party has been penalized.

E-books case29: In this case, Apple approached Four Publishers with the intention of entering the

e-book selling market. It proposed to sell e-books in the agency model. The objective behind this

was to reduce retail competition with its competitors. Apple in its agreement added a retail price

MFN clause which entailed that if any of the publishers offered a lesser price of the e-book, the

publishers had to also reduce the price book in the ibookstore to balance the prices. In addition to

this apple also imposed identical price grids with maximum retail price points beyond which the

publishers could not charge in respect of new e-books. EC was of the view that these steps were

taken by the parties in order to reduce competition in the European market and in turn compel

26Guidelines on the applicability of art. 101 of the Treaty on the Functioning of the European Union to Horizontal

Co-operation Agreements, OJ C 11, 14.1.2011, p. 1– 72, (May 10, 2020: 12:05),

https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52011XC0114(04)&from=EN. 27 On Vertical Restraints, OJ C 130, p. 1–46, (May 10, 2020:

10:20),https://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:130:0001:0046:EN:PDF. 28ICI v Commission, Case 48-69, Para 64, (EC: 1972) 29 Case COMP/39847 - EBOOKS.

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other retailers including Amazon to increase its retail prices. EC's view was that Apple

orchestrated the whole operation by keeping the publishers informed about the negotiations with

the others. The EC regarded the whole operation between the parties as concerted action as there

was both indirect and direct exchange of information between Apple and the four publishers.

However, the same was not regarded as H&S agreement which is probably due to the fact that in

addition to having a common hub i.e. Apple, the publishers also had direct contacts with each

other.

In Pioneer judgment30, Philips judgment31 and Asus judgment32 Denon& Marantz judgment33

etc. EC imposed fines on various parties for concerted practices under section 101(1) of TFEU.

Even though they were found to be vertical agreement the EC included the possibility of

involvement of suppliers.

ICAP judgment34: EC imposed a fine of € 14,960,000 to a broker based in the UK for enabling

six cartels in the derivatives market by acting as a communication channel and distributing

misleading communications.

AC Treuhand I35("AC"): EC found AC liable for facilitating cartel amongst three producers of

organic peroxides market. The EC was of the view that AC conducted the meetings amongst the

producers and hid the evidence and was fined € 1000. The Court held that the party cannot evade

liability based on the argument that it had played only an accessory or passive part in the cartel.

The fact that the undertaking did not take an active part in the market will not lead to escaping of

liability. AC Treuhand also argued that EC infringed the principle of nullumcrimen, nullapoena

sine lege36 by imposing a penalty on an act previously not considered illegal. The court also

rejected this contention on the grounds that there was already settled law in regards to the

liability of undertakings which are complicit to the offence.

b. United Kingdom’s Approach

Under the UK’s Competition regime such practices are punished under Section 2(1) of

Competition Act 1998 whose wordings are along the same lines as Section 101 of TFEU. Sports

Replica kits case37 OFT found certain retailers and suppliers of sportswear guilty of price-fixing.

In this case, Sports Soccer, one of the new entrants was charging prices way below the

recommended retail prices (“RRP”), which lead JJB, another retailer to approach Umbro, the

producer of replica sports kits asking it to reduce its wholesale prices so that the profit margin

can be maintained. Umbro thereafter approached other retailers and entered into agreements with

them so that they would charge prices up or above the RRP and also provided information to

them about the conduct of their competitors. An appeal was filed to the Competition Appellate

Tribunal (“CAT”) which upheld the decision and provided some significant insights about the

30 Cases COMP/AT.40182-Pioneer. 31 COMP/AT.40181-Philips. 32 COMP/AT.40465- Asus. 33COMP/AT.40469-Denon &Marant. 34 Case T-180/15. 35 Case T-99/04. 36 The Latin means that there must be no crime or punishment except in accordance with fixed, predetermined law 37 Case CP/0871/01.

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treatment of such practices. CAT, laid down that:

“if (i) retailer A discloses to supplier B its future pricing intentions in

circumstances where A may be taken to intend that B will make use of that

information to influence market conditions by passing that information to other

retailers (of whom C is or may be one), (ii) B does, in fact, pass that information

to C in circumstances where C may be taken to know the circumstances in

which the information was disclosed by A to B and (iii) C does, in fact, use the

information in determining its own future pricing intentions, then A, B and C are

all to be regarded as parties to a concerted practise having as its object the

restriction or distortion of competition.” 38

UK test: This case led to the development of the three-limb test in the UK. It envisages a

triangular relationship between the participants. It can be explained in the following way:

1. A discloses information to B (hub)

2. B discloses this information to A’s competitor C

3. C uses this information and changes his behaviour in the market to its advantage.

In addition to this the court has also emphasized the subjective element i.e. the intention, which

can be explained in the following way:

1. A discloses the information about its future conduct to B with the intent/knowledge

that it will be communicated to his competitor i.e. C

2. C must know under what circumstances and the reason why the information has been

received by it and uses such information to change its conduct.

The same is also regarded as the state of mind test which has been enumerated in the Dairy

products case39. In this case, the Office of Fair Trading (“OFT”) imposed a penalty on 9

supermarkets (spokes) for engaging in anti-competitive activities. They exchanged information

not directly but through a dairy processor (hub), which in their opinion formed an H&S cartel.

One of the supermarkets i.e. Tesco which was fined around £ 10.4 million filed an appeal in

CAT. The court stated that in case of direct exchange of information there is no requirement to

establish the state of mind of the party. However, where a third party i.e. B the supplier becomes

the way through which information is exchanged between A and C it becomes important to

establish the state of mind of the parties. In such a case there can be no presumption of the state

of mind of the retailers.

c. Germany’s Approach

On the same lines of Section 101 of TFEU, Section 1 of the German Competition Act i.e.

Gesetzgegen Wettbewerbsbeschränkungen prohibits agreements and concerted practices which

have an anti-competitive effect.

Beers case40: A penalty of 112 million euros was levied on the suppliers and retailers for

entering into vertical agreements through which retail price level of beer was sought to be

38JJB Sports PLC v. OFT, 27, (2004: CAT). 39 Case No. CA98/03/2011. 40Bundeskartellamt, Case summary of the decisions of 16 June 2015, 30 December 2015, 28 April 2016 and 2

December 2016, B10-20/15, (May 12, 2020: 13:00),

http://www.bundeskartellamt.de/SharedDocs/Entscheidung/EN/Fallberichte/Kartellverbot/2016/B10-20-

15.pdf? blob=publicationFile&v=3.

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http://www.bundeskartellamt.de/SharedDocs/Entscheidung/EN/Fallberichte/Kartellverbot/2016/B10-20-15.pdf?__blob=publicationFile&v=3

http://www.bundeskartellamt.de/SharedDocs/Entscheidung/EN/Fallberichte/Kartellverbot/2016/B10-20-15.pdf?__blob=publicationFile&v=3



maintained. The prices were monitored and maintained by the producer through meetings and

other tools.

Clothing case41: There was an imposition of a penalty of 10.9 million Euros both the

manufacturer and retailers of clothing brands where the manufacturer entered into a systematic

understanding with the retailers about the prices of its products.

d. Other Jurisdictions

Poland: In PCW42, Tikkurila43and Akzo Nobel44 the Polish Competition Authority fined the

paint manufacturers and DIY stores for entering into retail price-setting arrangements. They were

punished for RPM. However, due to the fact that there was no direct communication between

retailers and that the supplier was, in fact, providing information implies that there was an H&S

arrangement between the parties.45

Belgium: In the Supermarkets case46 the Competition Authority of Belgium levied a penalty of

174 million Euros on 11 suppliers and 7 retailers for exchanging retail prices of drugstore and

hygiene products. Such an act was done by the retailers through the suppliers and no information

was directly communicated.

e. Jurisprudential Analysis

Even though the above-mentioned cases do give us a sense of the attitude that competition

authorities in Europe have towards H&S agreements the fact that such agreements have not been

defined under the European Competition law gives rise to a certain vagueness in regards to the

circumstances under which liability can be imposed and its extent. Especially in regards to the

state of mind test, it is very difficult to establish these subjective elements which require a higher

standard of proof as intention can rarely be established through documentary evidence which can

lead to the hub going unpunished. It is also difficult to distinguish whether the actions taken by

the parties is pro-competition or anti-competition as information is also exchanged during

negotiations between the parties to aim to reduce the prices which may be completely legal and

may lead to pro-competitive effects.

f. Indian Judicial Approach

Before the introduction of the Competition Amendment Bill, 2020 there was no provision

dealing with H&S agreements under the Indian Competition regime. However, there are a few

case laws which mention H&S agreement. Even though they might not give a concrete

understanding about the treatment of H&S agreements under Competition law however it does

give us an idea on how the Competition Commission of India (“CCI”) views such agreements.

41Bundeskartellamt, Case summary of the decision of 21 July 2017, B2 - 62/16, (May 12, 2020:!6:21),

https://one.oecd.org/document/DAF/COMP/WD(2019)104/en/pdf. 42 DOK-1-400/7/05/MB/AS. 43 DOK1-410/1/06/AS. 44 DOK1-410/2/06/A. 45 , Polish Antitrust Experience with Hub-and-Spoke Conspiracies, Centre for Antitrust and Regulatory Studies,

University of Warsaw, Faculty of Management, (2011) 46 Case CONCI/O-06/0038.

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The following cases may be considered as relevant:

I. Fx Enterprise Solutions India Pvt. Ltd. and Anr. v. Hyundai Motor India Limited

(“HMIL”)47: In the present case, both the first and second informant had dealership agreements with the Opposite Party (“OP”) i.e. HMIL. Contentions of the Informants were as follows:

1. It was contended that OP had entered into exclusive dealership agreements with and had

set up “Discount Control Mechanism” through which it fixed the range of discounts.

They were also accused of entering into tie-in arrangements with its dealers

2. It was also contended that as per the Dealership Agreement the dealers were not allowed

to take the dealerships of the competitors.

3. In respect of H&S agreement, it was contended that the OP had facilitated such

agreements thus leading to price collusions. The informant defined the conduct as “where

bilateral vertical agreements between supplier and dealers and horizontal agreements

between dealers through the role played by a common supplier, results in price

collusion.”48

The CCI found the HIML guilty of only some practices namely RPM and tie-in arrangement but

only in respect of Lubricants and Oils and imposed a penalty of 87 crores. Even though CCI did

not give its opinion about H&S agreement and whether it had been facilitated by the OP this case

still is significant as it is the first time where an enterprise had been accused of entering into

H&S agreements.

II. Samir Agrawal v ANI Technologies Pvt. Ltd and Ors: In this case, Informant had submitted

that algorithmic pricing used by cab aggregators i.e. Ola and Uber amount to price-fixing

charge.Contentions of the informants were as follows:

1. It was contended that due to algorithmic pricing the drivers were not free to change prices

at their own free will, not allowed to give discounts and had to accept the fare which

resulted from the pricing algorithm having no discretion in the matter. In addition to that,

it also restricted the riders from negotiating prices with the drivers.

2. Ola/Uber had entered into vertical agreements with its drivers so that it could impose

minimum prices i.e. RPM and that they were using the personalized information they had

about riders to their disadvantage.

3. It was also contended that the drivers who worked under the Cab aggregator’s

independent third-party service providers. They were not employees hence did not

constitute as a single economic entity. Therefore it was contended that the collaboration

between drivers organized by the Cab aggregators resulted in ‘concerted action’ and that

Ola/Uber acted as ‘Hub’ to enable the spokes to coordinate and collude on prices.

CCI described H&S in the following manner,

“hub and spoke arrangement refer to an exchange of sensitive information

between competitors through a third party that facilitates the cartelistic behaviour

of such competitors.”49

The Commission concluded that the same doesn’t apply to the case. The Commission stated that

47Fx Enterprise Solutions India Pvt. Ltd. and Anr. v. Hyundai Motor India Limited, Case Nos. 36 & 82, (CI: 2014). 48Fx Enterprise Solutions India Pvt. Ltd. and Anr. v. Hyundai Motor India Limited, Case Nos. 36 & 82, Para 7,

(CCI: 2014). 49Samir Agrawal v ANI Technologies Pvt. Ltd and Ors. Case No. 37, Para 5, (CCI: 2018).

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the fares are determined are through App by the algorithm on the basis of large data sets,

commonly known as ‘big data’ which taking into consideration various information such as

personal information of riders, time, festival, state of traffic etc. to determine the fares. Such an

arrangement cannot be regarded as a traditional ‘H&S agreement’.The Commission stated that

H&S arrangements involve, generally, the spokes to use a 3rd party platform i.e. a hub for the

exchange of information, there should be some kind of conspiracy, and the fact that drivers have

agreed to algorithmically determine prices does not indicate any collusion between them. A hub-

and-spoke cartel would necessarily require an agreement set prices or coordinate prices through

the platform between all the drivers. The drivers entered into no such agreement. CCI also

rejected the contentions about RPM and price discrimination.

Analysis of the Judgment:

Even though this is a significant case in respect of H&S agreement as it indicates that such

agreements may be held as illegal under the Indian Competition regime. However, it has raised

some serious questions.For example, it is a well-recognized fact that algorithms and use of other

software can be used to limit competition. Such algorithms and software can be designed in such

a way that may facilitate anti-competitive behaviours. Ezrachi and Stucke in their paper

classified H&S arrangements as one of the four categories of agreements in which Artificial

Intelligence can be used to conduct illegal activities. In research of e-commerce sector conducted

by EC, it found that 30% of the manufacturers track online prices at which their goods are sold

by retailers, 38% use price-tracking software and 67% of retailers used software to know the

competitors’ prices.50

In the LG case, the Russian Competition authority imposed fine on LG Electronics for

coordination of economic activities of resellers by use of special software and price algorithms.51

EC taking a similar approach had charged four electronics manufacturers namely 111 million

Euros for fixing resale prices on their retailers by using pricing algorithms and other price

tracking tools.52 However, they necessitated the requirement of the traditional exchange of

information to prove collusion in H&S agreements.53

The ambit of the word agreement, as defined u/s 2(b) of the Act is quite wide and includes an

arrangement and an understanding. The drivers had the knowledge that the fares will be

determined by the algorithm for all the competitors, and an understanding that these are non-

negotiable prices that have to be accepted, such an understanding and concerted action qualifies

as an agreement and the same can be held as an infringement of Section 3(3) (a) of the Act.

Therefore, it can be said that the Commission failed to take such principles and precedents into

account while deciding the present case.

50European Commission, Staff Working Document accompanying the Final Report on the Ecommerce Sector

Inquiry, SWD (2017) 154 final of 10 May 2017. 51Organisation for Economic Co-operation and Development, Annual Report on Competition Policy Developments

in the Russian Federation, DAF/COMP/AR (2019)51, 9 May 2019, (May 13, 2020: 10:32),

https://one.oecd.org/document/DAF/COMP/AR(2019)51/en/pdf. 52Supra Note 30, 31, 32 and 33. 53Organisation for Economic Co-operation and Development, Roundtable on Hub-and-Spoke Arrangements –

Background Note, 25 November 2019, DAF/COMP (2019)14, (May 2, 2020: 13:10),

https://one.oecd.org/document/DAF/COMP(2019)14/en/pdf.

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Proposed Competition Amendment

1. Amendment text

The draft amendment with respect to H&S arrangement requires the following proviso to be

inserted in section 3 (3):

“Provided further that an enterprise or association of enterprises or person or association of

persons though not engaged in identical or similar trade shall be presumed to be part of the

agreement under this subsection if it actively participates in the furtherance of such an

agreement.”.54

The amendment addresses one of the key issues in competition law which has been at a rise in

recent times but was unaddressed by the Act. The amendment, however, does not use the words

‘H&S’.

2. Horizontal Agreement

By virtue of this amendment, horizontal agreement. The discretion left to the courts as in other

jurisdiction which enables them to determine whether such an arrangement falls within the

purview of horizontal anti-competitive agreement or vertical anti-competitive agreement is taken

away from their Indian counterparts.

Such discretion may be necessary in cases where the involvement of the hub and the share of the

profit earned by the hub is leading and dominant. As a result, the involvement of spokes is

secondary and the relevant market to eliminate competition is that of the hub and no spokes. An

example of such a scenario was the Apple- Amazon case and the TRU case discussed earlier.

3. Burden of Proof

And by virtue of the amendment it has been clarified that H&S is to be treated as a horizontal

agreement, thus, the per se rule shall be applicable and the DG will not be required to prove the

existence of AAEC in the relevant market.

As seen in the above-mentioned cases, vertical agreements between the H&S are easier to detect

and prove and the proof of the existence of the horizontal agreement is the most complex part of

the process. CCI by virtue of this amendment has treated H&S as a type of horizontal agreement

thus the case depends on its entirety on the proof for the existence of a horizontal agreement and

does not even allow the courts to infer such an agreement by their

4. Active Participation

Furthermore, the amendment also uses the word ‘actively participates in furtherance of such an

agreement shall be presumed to be a part of this agreement’ instead of the usual terminology

used in the Act like ‘agreement entered into’. This terminology evidently shows that the hub’s

conscious actions to aid such an agreement is sufficient to make it a party to the agreement, it

effectively dismisses the need for parallel multiple vertical agreements between the H&Ss.

5. Proving an H&S Agreement

The effect of the amendment is that to prove a case of H&S by the DG before CCI the following

will have to be proved in the given order only: A horizontal agreement between the spokes,

54 The Draft Competition (Amendment) Bill 2020, Proviso to §.3(3), http://feedapp.mca.gov.in/pdf/Draft-

Competition-Amendment-Bill-2020.pdf.

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(i) Active participation of hub to further such an agreementunder the various cases studied in the

span of this paper, it has been observed the most challenging part of an H&S agreement is to

prove that the spokes have entered into a horizontal agreement, even after accepting the

existence of the vertical agreements between the H&Ss.By virtue of this amendment, this task

has been made even more difficult for the DG as it will first have to prove the existence of the

horizontal agreement, which are not directly in the present scenario and then prove the active

participation of hub in such an agreement. The existence of parallel vertical agreements between

the H&Ss has been devoid of its evidentiary value by virtue of treating it as ‘active participation’

and to be dealt with only subsequent to proving the existence of the horizontal agreement to

determine its type and the liability of hub.

6. Liability

In addition to that by virtue of treating it as a horizontal agreement the liability of hub will also

be same as that of the spokes, i.e. a penalty not more than 10% of the average turnover for last

three preceding financial years, unless it is a cartel where it can be the above-mentioned penalty

or three times the profit for each year agreement continued, whichever is more55. The hub is also

treated as a participant to the horizontal agreement and thus, the liability of all the parties H&Ss

is alike.

V. Conclusion and Suggestions

To conclude the authors would like to state that the present bill seeks to expand the jurisdiction

of CCI by bringing the concept of H&S agreement within its preview and widens the scope of

horizontal agreements by including parties which are not engaged in similar or identical trade but

contribute to the furtherance of such agreements.

H&S agreement does present a number of challenges including issues of evaluation of evidence,

the standard of proof required, hybrid nature of the agreement which impacts the assessment and

their legal impact, etc. Before the introduction of the Bill, if such agreements were found in

contravention with the Act the liability would be limited to non-cartel offences however now the

penalty of cartelisation would be applicable to H&S agreements even though it may be argued

that acts only in furtherance of the same and should not be subjected to the same harsh treatment

as cartels.

The Bill has some issues which the authors would like to address and provide the following

suggestions for possible steps to be taken to resolve them.

A. Intention

The proviso lacks the inclusion of the intention of the parties. Since H&S agreements are a very

particular type of agreement where there is no direct communication between the competitors it

becomes very important to establish the intention behind which such an act. It is common in

today’s market that retailers legally exchange information to their suppliers for ease of

transaction. If the supplier, without the knowledge of the retailer, shares such sensitive

information to its competitors and the competitors uses or have the intention to use such

information it will result in anti-competitive effects. In such a case the retailers should not be

held responsible for the acts of the supplier due to lack of intention to collude. Therefore the

55 The Competition Act, §.27, (No. 12 of 2003).

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subjective element should also be included.

B. Definition of active participation

Furthermore, the term active participation needs to be defined by the legislation to avoid the

ambiguity that arises from a lack of a skeletal definition providing for the intention of the

legislation. The following elements must be included in the definition of active participation:

1) an act is done or abstained from doing by hub or its representative on his direction,

2) with the intention to aid the spokes in coordinating to perform acts prohibited u/s 3(3),or

intentionally does any other act which if done by spokes would make them liable u/s

3(3)all the parties gain profit out of such an agreement

C. Mixed H&S Agreements

As discussed above a mixed hub and scope agreement does not violate section 3(3), and since the

amendment only accounts for the situations where the hub facilitates the spokes in coming into a

horizontal agreement, such mixed arrangements have been clearly ignored. The issue necessarily

needs to be addressed as it may engage in other acts which are prohibited under the other

provisions of the Act, they may lead to different anti-competitive effects, different penalties and

different standards on which such agreements will be tested as being anti-competitive.

D. Definition of “Hub” and “Spoke”

The authors suggest hub and spokes should be defined under the Act which will enable a clearer

interpretation of the concepts and the offence as a whole.

Hub is an enterprise or association of enterprises or person or association of persons that enter

into multiple parallel vertical agreements with spokes to enable them to perform acts prohibited

under the Act, by acting as a channel for communication, enforcement or other aiding actions.

Spokes are more than one enterprises or associations of enterprises or persons or associations of

persons who are each other’s competitors and that enter into vertical agreements with a hub to

perform acts prohibited under the Act.

E. Introduction of H&S as Separate Offence

Thus, the authors would like to suggest the addition of H&S as a separate offence with a wider

definition and suggest the following definition of H&S agreement to give more clarity to the

concept under the Act:

Hub and Spoke agreement is an agreement, arrangement or concerted action reached between the

hubs and spokes or their representatives thereof through various vertical agreements, causing or

intending to cause restriction, prevention or distortion of competition in the market by

performing acts prohibited under the Act.

F. Penalty of Hub

In Verizon Commc’ns Inc. v. Law Offices of Curtis56 the hub who organized a horizontal

conspiracy had been referred to as the “supreme evil of antitrust”, and logically it’s the

participation of hub which enables all the other parties to participate in such an anti-competitive

practice.

Thus, the authors suggest that in addition to the monetary liability the hub shall also be made

subject to a ban of any exchange of sensitive information in its vertical transactions for a

56Verizon Commc’ns Inc. v. Law Offices of Curtis V. 14 Trinko, LLP, 540 U.S. 398, (SC:2004).

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minimum period of two years. A similar ban on exchange of information for 5 years was

imposed on Troy by the Commission and the US Court of Appeals.

G. Leniency

The provision of leniency is one of the most effective tools available to CCI to incentivize a

party engaged in cartels to report the same, especially where incriminating evidence exists only

against one of the members. In the case of H&S arrangements, hub arguably is the most exposed

party, as it has the most apparent connections with all the spokes. Being the facilitator, the hub

will probably have the majority of the information, thus the scope of the information provided by

the hub to CCI will be profoundly more.

Hence, the authors suggest that not only the current leniency provisions should be extended to

H&S agreements but also, special leniency provision shall be made for such agreements. Such

provisions will allow the hub to have a larger percentage of waiver of a penalty than the one

provided in the current chronological order u/s section 4 of CCI (Lesser Penalty) Regulations,

200957. That is, even if the hub comes forward as a second or third informant the waiver of its

penalty can be higher than 50 or 30% corresponding to the added value of the information

provided by it.Lastly, the authors would like to state that it is a great step forward as the

companies would have to make sure that not only their employees but also their business

partners, both upstream and downstream are well-versed with the principles of competition law

and will lead to better enforcement of such principle.

57The Competition Commission of India (Lesser Penalty) Regulations, §. 4, (Act No.4 of 2009).

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Identity Theft: Extent and Applicability of Data Protection Laws

Abhishek Kushwaha & Aditi Palit1

Abstract

The nature of data protection laws in the light of identity theft and its analogue namely ATM

skimming and Phishing pose obstacle before the existing cyber laws. Conventional laws have

contributed to evolving number of personal data breaches. Virtual medium of interconnection

among the computers called cyberspace not only provide with anonymity of users online but

also works as a host to facilitate these high-end technical crimes. Drawbacks of personal data

protection laws in Indian are evident in terms of legislations which are in turn only two

Information Technology Act 2000 and Indian Penal Code 1860. The number of legislations

which are inclusive of such techno forward crimes are alarming though attempts have been

made in National Cyber Security Policy 2013 and Data Protection Bill 2019. ATM skimming

is an act of altering the ATMs to make counterfeit of credit or debit cards whereas Phishing

is an act of sending bogus emails luring customers to click. Uncertainty over accountability

and liability of banks for acts of ATM skimming and Phishing gives fraudsters an upper hand.

Contrasting the prospective of legislation, data protection system and initiative regarding

personal data protection by financial institutes of United Kingdom to India indicate the

glaring need of offence specific laws.


I. Introduction: Grey Area Of Cyberspace

“As the world is increasingly interconnected, everyone shares the responsibility of

securing cyberspace.” - Newton Lee

Technology has fostered great advancements. One such advancement is the creation of

arithmetical, logical and high-speed processing machines called Computers2. With the emerging

trends of computers, the word ‘cyber’ appeared like a gate way to virtual reality. In order to

integrate virtual reality to physical reality computers depend on optical or electrical impulses for

establishing connectivity through cyberspace. This virtual medium which interconnects computers

to other computerized devices through rapidly changing electronic combinations can be termed as

cyberspace. According to National Cyber Security Policy 2013, the interactions between people,

software and services which are supported by internet or worldwide distribution of networks and

‘information and communication technology’ (ICT) devices, such a complex environment is called

cyberspace.3

Cyberspace is parallel to the oral and documentary mediums with no tangible attributes. The rise

of cyber space as an alternative to its tangible counterparts can be subject to mala fide intentions

when deflected from its intended use. Every person has a right to enjoy digital privacy and any

disruptions caused due to interference by individual or computerized gadget are subject to cyber

laws. According to Jay Dratler Jr. Cyber law addresses issues of online speech and business that

arise because of the nature medium, including intellectual property rights, free speech, privacy, e

1 Abhishek Kushwaha & Aditi Palit, Third Year B.A. LL.B. Amity Law School, Delhi.

2 Information Technology Act, 2000, § 2. 3 National Cyber Security Policy, 2013, Ministry of Electronic and Information Technology, (Jan, 13, 2020, 10:00

a.m.), https://meity.gov.in/sites/upload_files/dit/files/National%20Cyber%20Security%20Policy%20%281%29.pdf

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– commerce, and safety, as well as questions of jurisdiction also termed as cyberspace law4.

Furthermore, he explained that Cyberspace law relates more to climbing the steep learning curve

of the internet technological complexities than to changes in the accordance with accepted and

well understood basic legal principles, albeit applied to new technology and new circumstances5.

Hence to prevent infringement of right to digital privacy, legislators enacted Information

Technology Act 2000 which had a sole objective of giving legal recognition and acceptance to

electrical transactions carried in the virtual medium called cyberspace and for its legally sound

use. According to the statement of object and reasons of Information Technology Act 2000 (IT

Act 2000) the intention behind the enactment of IT act 2000 was to remove the hesitation

surrounding the use computers to create, transmit and store information in the electronic form

instead of traditional paper documents. Information stored in electronic form has many advantages

such as it is cheaper, easier to, store retrieve and speeder to communicate. Such a reluctant

behaviour is due to of lack of appropriate legal Framework6. Thus, IT Act 2000 would act as a

trustful bond with humans and computers.

Technology has alleviated our perspective about boundaries of communications and transactions

but as every cloud has a silver lining technology has paved a way for humans to embezzle the

perks of it. The borderless space, anonymity of users’ online, dynamic e-commerce and rapid

inclusion of technology in businesses and organisations especially banking sectors is a stumbling

block for the application of traditional cyber laws. Hence there is a glaring need for securing

transactions online in order to restrain the criminal developers from having damaging

consequences for such proliferate involvement of e-commerce.

Banks in order to have a competitive edge on being the most tech-savvy are expanding their

services from “walk in office” to “available online” such services are exposing customer personal

data making them prone to hacking, theft of personal data, phishing, spoofing for gaining

unauthorized information to make illegal profits. Such acts may not appear to be illegal per se but

can reverberate throughout the cyberspace causing immense danger and the customers are left to

suffer the consequences. Initiatives towards the realm of securing banking assets include

surveillance over both physical assets and intangible assets. More banks are prepared to counter

the attacks, more criminals are equipping themselves with the latest technology to ensure that the

banks always keep running -- to learn, to equip and to protect their assets.7

According to national crime record bureau [NCRB] reported ATM frauds and online banking

frauds that were committed in all India in 2017 were about 1543 and 804 respectively. Whereas

total reported cybercrime committed in India in 2017 are about 21796.8Not only ATM frauds, but

ransom ware attacks like “WANNACRY” are also a threat to the digital world. The impact of

WANNACRY in India may have been minimum extending its claws mainly in the state of west

Bengal along with other metropolitan cities. But such a worldwide attack debunked the claims of

4 Henry Campbell Black, Black’s Law Dictionary, pg. 443, (9 ed. Thomson Reuters: Minneapolis-St. Paul 2001). 5 Henry Campbell Black, Black’s Law Dictionary, pg. 443, (9 ed. Thomson Reuters: Minneapolis-St. Paul 2001). 6 Statement Of Object And Reasons: Information Technology Bill 2000, Telecom Dispute Settlement And

AppellantTribunal,(Jan,13,2020,10:00),http://www.tdsat.gov.in/admin/introduction/uploads/INFORMATION%20T

ECHNOLOGY%20ACT.pdf 7 V. Rajendran, Banking on IT’s Security, 89; The Journal of Indian Institute of Banking And Finance 13 (2018) 8 Ministry of Home Affairs, Government of India, National Crime Record Bureau Report, National Crime Record

Bureau (Jan, 13, 2020 10:25 am), http://ncrb.gov.in/StatPublications/CII/CII2017/pdfs/CII2017-Full.pdf.

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http://www.tdsat.gov.in/admin/introduction/uploads/INFORMATION%20TECHNOLOGY%20ACT.pdf

http://ncrb.gov.in/StatPublications/CII/CII2017/pdfs/CII2017-Full.pdf



the banking institutions and other e- commerce platforms for professing a safe and secure platform

for their users. WANNACRY attack known as a Mega Cyber Attack has already became a global

phenomenon.9 Other than malware intrusion, other offenders are also stepping up their game to

knock down Indian laws on cyber security and data protection.

II. Data Protection Challenges:

a. Identity Theft

‘Identity’ is evidence of an individual’s existence and ‘theft’ is possession without ownership or

consent of the entitled person. Therefore, identity theft is when an individual possesses another

person’s existence without ownership. In layman’s language identity is stolen when a person

impersonates to be an individual who he is not. According to black’s law dictionary identity theft

is the unlawful taking and use of another person’s identifying information for fraudulent purpose.10

Identity theft is a very broad term and it extends to a considerable number of offences from

misrepresentation to forgery, some are traditional crimes and some can be considered as newer

versions of cyber-crimes like ATM skimming, phishing. All these offences are under the broad

spectrum of identity theft.

In India identity theft is punishable under two legislations namely Indian Penal Code 1860 (IPC

1860) and Information Technology Act 2000. Identity theft as an offence was recognised after the

Indian penal code was amended by the Information Technology Act 2000. The amended

provisions in the Indian Penal Code 1860 specifically deal with offences related to the electronic

record to be precise. Electronic record as defined in the IPC 1860 is identical under the IT act 2000

i.e. section 2(1)(t)11defines electronic record as data, record or data generated, image, sound which

is sent or received through electronic form.12

Attention should be drawn to the provision which may include the offence of Identity theft. Theft13

under IPC 1860 may not cover identity theft as it only extends to movable, tangible property and

does not include cyberspace. Other provisions of the Indian Penal Code 1860 do not specifically

mention identity theft but sections such as Section 463, 464, 465, 469, 47414 these provisions

penalised forgery and after the amendment identity theft is also included under the scope of these

provisions. Under Section 419 and 42015, identity theft is punishable as cheating specifically

cheating by impersonation. Indian Penal Code 1860 beats around the bush to criminalize identity

theft and adds it as an extended branch of forgery or cheating. The term ‘identity theft’ was added

in 2008 amendment in the Information Technology Act 2000. It took few years to realise the need

of offence specific laws, under section 66C16 which penalises fraudulently or dishonestly making

9Ashok Koujalagi, Shweta Patil & Praveen Akkimaradi, The Wannacry Ransomware: A Mega Cyber Attack and Their

Consequences on The Modern India, 6 International Journal of Management Information Technology And

Engineering 4 (2018) 10 Henry Campbell Black, Black’s Law Dictionary, pg. 443, (9 ed. Thomson Reuters: Minneapolis-St. Paul 2001) 11 Indian Penal Code, 1860, § 29. 12 Information Technology Act, 2000, § 2. 13 Indian Penal Code, 1860, § 378. 14 Indian Penal Code, 1860, § 463, 464, 465, 469, 474. 15 Indian Penal Code, 1860, § 419, 420. 16 Information Technology Act, 2000, § 66 (c).

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use of any unique identification feature of any person.

Implementation is another hurdle as there are no trained personnel to cope up with the constantly

upgrading cybercrimes. Moreover, lack of awareness about such serious cyber-crimes feeds into

the rising cases of identity theft every year. National security policy 2013 (NSP)17 focuses on

creating a nation nodal agency as well as proper and strict certification policy but still lacks in few

areas. Currently under the Information Technology Act 2000 there is only one type of certification

policy namely ISO27001 ISMS certification, which is not satisfactory and NSP does not include

the notion to introduce more certification policies18. The NSP 2013 also encourages compliance

with the open standards and public key infrastructure, without providing with a basic definition.

Moreover, the policy targets at a human resource of creating 5 lakh personnel in next five year

which falls short in reality19. Overall the national cyber security policy 2013 turned out to be

superficial and far away from reality. From an over view the laws may seem to be sufficient to

tackle the offence of identity theft but the growing number of reported cyber outbreaks question

the existing legislations.

b. Identity Theft: Extended Branches

i) ATM Skimming

The idea of “cash anywhere, anytime” encouraged setting up of machines which allow easy

withdrawal of cash by authorized account holders. Within a blink of an eye automated teller

machines (ATMs) became primary and much needed facility provided by banks to their customers.

ATM frauds are being conducted in various forms, from keypad overlays, hacking of the existing

cameras, to installing cameras in the machine itself. Among all of these skimming is a much more

advance form of financial fraud. Thus there is a requirement to approach it with a much more

sophisticated and advanced security mechanism. Technophiles use skimming devices to commit

theft. These new aged thieves can use hidden electronics devices like skimmer and false key pad

overlay to copy all the personal information stored on a card and record the PIN number to access

all that hard-earned cash from an individual’s account20. Further this confidential information can

be used to make counterfeit copy of cards inserted in such infected card insertion slots such an

offence is known as ATM skimming21. Identity theft is only the beginning point as it branches out

to other forms of offences this whole chain of events can incur financial losses. ATM skimming

has not been specifically defined but ATM "Skimming" is an illegal activity that involves the

installation of a device, usually undetectable by ATM users, that secretly records bank account

data when the user inserts an ATM card into the machine. Criminals can then encode the stolen

data onto a blank card and use it to steal money from the customer's bank account.22

17 The Ministry of Electronics and Information Technology, National Cyber Security Policy 2013, National Critical

Information Infrastructure Protection Centre (Jan, 13, 2020, 10:00 am),

https://nciipc.gov.in/documents/National_Cyber_Security_Policy-2013.pdf. 18 Id. 19 Id. 20 Dr. Bharat Pancha, De-mystifying payment system challenges: Pragmatic Approach, 84(3) The Journal of Indian

Institute of Banking & Finance 18-19, (2013). 21 Id. 22Raymond W. Kelly, Crime Prevention Section Awareness Alert, Skimming at ATM Machines, Community Affairs

Bureau and Police Department Of New York City, (Jan, 13, 2020, 10:00 am),

http://www.nyc.gov/html/nypd/downloads/pdf/crime_prevention/ATMskimmingtip.pdf

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ii) Are ATMs computers?

Aptness of legislation and accountability for such high-end sinister crime is also an angle which

has to be considered while exploring the offence of ATM skimming. The only strand of legislation

that to some extend can cope up with crimes related to ATM skimming is the Information

Technology Act 2000 along with the information technology (amendment) act 2008.

Can ATMs be considered as computers or electronic devices to enable incorporation of offence

relating to ATM within the preview of the IT act?

Thus, the question needs to be answered to ensure that the provisions of the only strand of

legislation that is the IT act 2000 are applicable. Attention has to be drawn to the meaning of

computers given under the IT act "computer" means any electronic magnetic, optical or other high-

speed data processing device or system which performs logical, arithmetic, and memory functions

by manipulations of electronic, magnetic or optical impulses, and includes all input, output,

processing, storage, computer software, or communication facilities which are connected or related

to the computer in a computer system or computer network23, in simple words computers are

expounded as electronic, magnetic, optical, high speed data processing layering the aspect of

manipulation of electrical impulses to perform logical, arithmetical and memory functions

moreover communication is established through inputs, outputs, processing , storage of such

electrical impulses connected to other computers in a computer system or networks.

Emphasis should also to be given to the meaning of ‘computer systems’ interpreted as device or

collection of devices, including input and output support devices and excluding calculators which

are not programmable and capable of being used in conjunction with external files, which contain

computer programs, electronic instructions, input data and output data, that performs logic,

arithmetic, data storage and retrieval, communication control and other functions24 .Comparing

the mechanism of ATMs they include input, output data as well consist of programmes to enable

cash dispensation. All in all, the meaning and functioning of ATMs was analytically explained in

the case of Diebold Systems Pvt Ltd Vs. Commissioner of Commercial Taxes25 where the court

stated that ATM has a data terminal with two input and four output devices. The ATM connects

to and communicates with a host processor that is analogous to an Internet Service provider. Then

the Machine is connected through the host processor through what is called a four-wire, point to

point, dedicated telephone line. The ATM docs not have many parts, there is a card reader, which

is what captures a person's account information that is stored on the magnetic strip located on the

back of the ATM/debit card. This information is used by the host processor in routing the

transaction to the appropriate bank. Then in has a 'Key pad', which is used by the cardholder to tell

the machine what type of transaction is needed. It has an 'electric eye' that is used for cash

dispensing mechanism. In addition to the eye, the ATM has a 'sensor' that is capable of evaluating

the thickness of each of the bills being dispensed.26In a nutshell not only computers but all devices

which are capable of inputs, outputs through electronic, magnetic impulses containing computer

programs performing logical, arithmetical, communication control and other functions are

23 Information Technology Act, 2000, § 2. 24 Id. 25 Diebold Systems Pvt Ltd Vs. Commissioner of Commercial Taxes ILR, 2005 KAR 2210. 26 Id.

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computers, ATMs are not computer per se but are connected to other computers forming a

computer network or system are covered under the Information Technology Act 2000.

Also, in the case of Commissioner Of Income Tax-III vs M/S NCR Corporation Pvt Ltd it was

stated by the court that ATMs are under the jurisdiction of cyber penal laws as computer is integral

part of ATM machine and on the basis of information processed by the computer in ATM machine

only, the mechanical function of the dispensation of cash or deposit of cash is done27. Therefore,

ATMs can be considered as computers within the preview of the information technology act 2000.

iii) Shortcomings of Existing Legislations.

With only handful of acts the existing reality of cyber law in India are evident. The working

legislations are only scratching the surface instead of digging deep into the notion of security and

accountability for such serious crimes. Provisions which deal with the offence of ATM skimming

under the Information Technology Act 2000 are section 43, 66, whereas sections 43A, 66C, 66D

added after the amendment in 2008 along with that other provisions such as section 420 of the

Indian penal code. Section 43 of the Information Technology Act 2000 describes civil liability of

a third party, where any person without the permission of the owner or the person in charge of

access, downloads, copies, contamination of virus, damages, disruption or causing interruption,

denial of access, gives access to any person who is unauthorised in accordance to the act, charges

the services availed of by any person to the account of another28. The clauses under this section

are accustomed to section 63 to 74. Whereas clauses (i) and (j) deal with more serious crimes

related to tampering of computer source code, alteration, damage or destroying of any information

residing in the computer resource29. But the section only provides with the liability of third party

instead of data processor or data controller.

These added provisions may seem adequate from a bird’s eye view but in contrast to the glaring

number of skimming done in ATMs, they appear to be more open ended depending more on

interpretation. words like ‘injuriously by any means’30and ‘damage’31 are dependent on the

interpretation of Court rather than expressively incorporating skimming done by third party, by

physically altering the machines through insertion of foreign equipment causing financial losses

punishable by penalty. Although attempt have been made in the recent Data protection bill 2019

to define the damage and the standard on which such fraudsters can be held liable. The Data

protection bill 2019 does not define damage or injury but explains “harm”32 which expressively

includes bodily or mental injury, loss, distortion, theft of identity and financial losses or loss of

property hence identifying the grade on which such offenders can be penalised which is more

inclusive of some crucial aspects of ATM skimming33.

27The High court of Karnataka, Commissioner of Income Tax-Iii vs M/S NCR Corporation Pvt Ltd, The High court

of Karnataka (July 30, 2020, 10:00 A.M.),

http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/333491/1/ITA242-11-16-06-2020.pdf 28 Information Technology Act, 2000, § 43. 29 Information Technology Act, 2000, [Amendment 2008], § 43. 30 Information Technology Act, 2000, § 43. 31 Id. 32Ministry of Electronic and Information Technology, Data Protection Bill 2019, MEITY (Jan, 13, 2020, 10:00 am)

https://meity.gov.in/writereaddata/files/Personal_Data_Protection_Bill,2018.pdf. 33 Id.

145

http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/333491/1/ITA242-11-16-06-2020.pdf

https://meity.gov.in/writereaddata/files/Personal_Data_Protection_Bill%2C2018.pdf


43 Information Technology, 2000, § 66D, § 66C.


Shortcomings on data protection and liability of the body corporate can be comprehensibly marked

in section 43A34 where a body corporate possessing, dealing or handling any ‘sensitive personal

data’ is negligent in implementing or maintaining ‘reasonable security practices and procedure’

causing wrongful loss or wrongful gain shall be liable to pay compensation to the person so

affected35. Reasonable security practices and procedure as mentioned in the explanation may arise

by way of agreement, any law in force or as prescribed by the central government in consonance

to expert advice36, such explanation only provides with a brief outline of what can constitute as

reasonable practice and procedure rather than providing a comprehensive meaning to it.

Secondly a wide power and discretion have been given to the central government on providing

with an appropriate meaning to sensitive personal data as well as personal data which have not

been yet classified in the Act. But an effort has been made in the Data protection bill 2019 to give

meaning to ‘personal data’ and ‘sensitive personal data’ while omitting section 43A completely

and fragmenting the liability of body corporate into liability of data processor and data fiduciary37.

Personal data includes trait, characteristics, attribute or any other information of a natural person

about the identity of such person whether online or offline also may include any data or information

from which an inference can be drawn for the purpose of profiling38. A more of a contemporary

approach have been taken while defining sensitive personal data, which not only include biometric,

financial, health, sex life, caste or tribe, but also include transgender status, intersex status and

sexual orientation39. With reference to what can be considered as personal data or sensitive

personal data the bill also includes an explanation, that if disclosure of such data may cause

significant harm or if there is an expectation of confidentiality such can be classified and

sanctioned as sensitive personal data by the authority under the bill40. Such a definition

incorporates the loss of personal information through skimming of ATM cards and the subsequent

financial loss as sensitive personal data. Still a little wiggle room is left in terms of the

categorisation of sensitive data and penalty to be imposed according to the seriousness of the loss

occurred due to the negligence and disinvestment of adequate security by such data processor or

data fiduciary. Criminal liability for ATM skimming is covered in relation to other offences under

section 66, explains that any offence covered under section 4341 is punishable with imprisonment

for a term of 3 years or with fine which may extend to five lakh rupees or both42. Whereas section

66C and 66D43 deals with punishment for identity theft and cheating by impersonation by using

computer resource. The available provisions are still are not inclusive of ATM skimming or

skimming in general as a specific offence.

iv) Liability of banks or third party?

34Information Technology Act, 2000, § 43. 35Id. 36Id. 37 Supra, 32 38 Id. 39 Id. 40 Id. 41 Information Technology, Act, 2000, § 43. 42 Information Technology, Act, 2000, § 66.

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Confusion is there with regards to the accountability and liability of the banks in terms of frauds

committed by the third party especially for ATM skimming. Followed by the extent of customers

personal liability and denial by banks is giving the offenders an upper hand in such techno forward

crime. In 2015 in the case of Vidyawanti vs. State Bank of India44 a revision petition was made by

the petitioner to the National Consumer Disputes Redressal Commission, New Delhi. In this case,

after a failed transaction at the ATM of State Bank of India installed at Nehru Place, Karnal,

unauthorized transactions took place at the ATM through the account of the complainant. On the

same day, complainant wrote a letter to State Bank of Patiala seeking refund of Rs. 40,000

wrongfully withdrawn from her account but the respondents/opposite parties failed to oblige. This

led to filing of the consumer complaint. It was held that from the evidences it is clear that a third

party has manipulated with the ATM machine which has resulted in unauthorized transactions. As

the money has been wrongly withdrawn from the account of the complainant, the body corporate

who are in banking business and earning profit out of it are liable to make good her loss. This case

clearly defined the scope of the bank’s liability in terms of manipulated ATMs as the burden of

responsibility would be on the banks to make sure the ATM machines are not altered and ensuring

compliance of the standard of security45.

The concept of ‘no fault liability’ of the banks with respect to ATM related frauds especially

skimming was considered in the notification of (reserve bank of India) RBI in July 6, 2017. The

RBI broke down the liability of the customer into following segments:

a. First is the ‘Zero liability’, a customer is entitled zero causality in case where the

transaction occurred due to negligence of the banks whereas in case where the fraud is

occurred neither due to the fault of banks nor the customer but lies elsewhere in the system

then, if the customer notifies the bank within 3 working days then the customer would be

entitled to zero casualty46.

b. Secondly the concept of limited liability of customers in cases where the loss is due to

negligence by a customer, such as where he has shared the payment credentials. In that

case the customer will bear the entire loss until he reports the unauthorised transaction to

the bank. Any loss occurring after the reported unauthorised transaction shall be borne by

the bank47.

c. In cases where the responsibility for the unauthorised electronic banking transaction lies

neither with the bank nor with the customer, but lies elsewhere in the system and when

there is a delay on the part of the customer in notifying the bank about the unauthorised

transaction, the per transaction liability of the customer shall be limited to the transaction

value or the amount mentioned in the notification, whichever is lower.48

Therefore, liability lies with multiple entities in a single unauthorized transaction but the most

affected are the consumers. Even in the concept of zero liability, limited liability or when there is

a delay in the redressal process the initial loss has to be borne by the customers.

v) Phishing

44 Vidyawanti v. State Bank of India Iii, CPJ 2015 NC 245. 45 Id. 46 Reserve Bank of India, Customer Protection – Limiting Liability of Customers in Unauthorised Electronic

Banking, Reserve Bank of India (Jan, 13, 2020, 11:43 am), Rbi/2017-18/15 Dbr. No. Leg.Bc.78/09.07.005/2017-18. 47 Id. 48 Id.

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Phishing is not a contemporary issue in the cyberspace but its variants have been evolving through

time. It is one of the most common types of cyber-attack on an individual’s right of security. The

general definition of phishing as per the oxford dictionary is that it is a fraudulent practice of

sending emails purporting to be from reputable companies in order to induce individuals to reveal

personal information such as passwords and credit card numbers49. Moreover Phishing is a form

of online identity theft that aims to steal sensitive information such as online banking passwords

and credit or debit card information from users50.In layman language it is a activity of tricking

people into giving their financial identity like bank account numbers, pan card numbers, account

passwords etc. over the Internet or by email or by other means, and then using this sensitive

information to dupe them of money.

Indian judiciary system has interpreted phishing in the case of National Association of Software

and Service Companies v. Ajay Sood. The court held that, Phishing is a form of internet fraud. In

a case of phishing, a person pretending to be a legitimate association such as a bank or an insurance

company in order to extract personal data from a user such as access codes, passwords, etc. which

are then used to his own advantage, misrepresents on the identity of the legitimate party. Typically,

phishing scams involve persons who pretend to represent online banks and siphon cash from e

banking accounts after conning consumers into handing over confidential banking details.51

There are upgraded variants or techniques that are employed by phishers which can essentially be

grouped under these headings. First and foremost is the one involving use of spam email, websites

and pop up window or fake banners. The second is where the advertising bears false corporate

identification that are addressed to a large number of people this does not require specific

identification of victims in advance rather it requires a response from the victim to accrue

information causing identity theft52. These include Nigerian lottery emails and home/reshipping

schemes53. The recent example is of Paytm KYC (Know Your Customer) registration through

SMS for using the payment gateway.

Though phishing is not a new threat but the constant upgradation of the attack, is making it less

and less predictable. The introduction of new channels of distribution, like instant messaging and

social networks are posing new threats and detection of phishing is more difficult. Vishing or also

known as voice phishing is a much recent development in the field. This attack is perpetrated

through a phone call. Likewise, Smishing is a new technique that is used to phish through SMS.

Pharming is the newest method of phishing where the attacker redirects the victim to a malicious

site of their choice. This is done through converting an alphabetical URL into a numerical IP

address so that it can locate and direct the visitors to the malicious website54.

49 Oxford University Press, Oxford Advanced Learner's Dictionary, Department of the University of Oxford, (July

30, 2020, 10:00 A.M.), https://www.oxfordlearnersdictionaries.com/definition/american_english/phishing 50Jyoti Chhikara, Ritu Dahiya, Phishing & Anti-Phishing Techniques: Case Study, 13(5)

International Journal of Advanced Research in Computer Science and Software Engineering 5 (2013). 51 National Association of Software and Service Companies v. Ajay Sood, 2005 119 DLT 596. 52 Supra, 50 53 Australian competition and consumer commission, Nigerian Scams, SCAMWATCH, (Jan, 13, 2020, 10:00 am)

https://www.scamwatch.gov.au/types-of-scams/unexpected-money/nigerian-scams 54 Ezer Osei Yeboah-Boateng, Priscilla Mateko Amanor, Phishing, SMiShing & Vishing: An Assessment of Threats

against Mobile Devices, 5(4) Journal of Emerging Trends in Computing and Information Sciences, (2014).

148

https://www.oxfordlearnersdictionaries.com/definition/american_english/phishing

https://www.scamwatch.gov.au/types-of-scams/unexpected-money/nigerian-scams



vi) Available legislations

In India, under the Information Technology Act, 2000 phishing is punishable. Phishing involves

fraudulently acquiring sensitive information through masquerading a site as a trusted entity55.

Provisions which are applicable on phishing are Sections 66, 66A and 66D of Information

Technology Act 2000 and Section 420, 379, 468 and 471 of India Penal Code, 186056. The repealed

clause (c) of section 66A of the IT Act which states that an act is punishable if any person, through

computer resource, communication device, any electronic mail or electronic mail sends a message

for the purpose of causing annoyance, inconvenience, to deceive or to mislead the addressee or

recipient about the origin of such messages57.In this section the act of phishing could have been

included under clause (c) as phishing is an act of deceiving and misleading but this section was

later struck down in the year 2015 being against the freedom of speech and expression under the

Article 19(2) of the Constitution of India.58However, Section 66D penalises cheating by

impersonation by means for any communication device or computer resource with imprisonment

of either description for a term which may extend to three years and shall also be liable to fine

which may extend to one lakh rupees59.Though this section does not mention the word phishing

but is still inclusive of Phishing and its extended forms as in phishing there is impersonation for

the purpose of cheating or duping people to extract data.

The act of phishing though is an act of fraud from a third party but the act is done through online

means. Thus, banks have the responsibility to make the users aware of these kinds of frauds. That

said, there is no legal duty of the banks to do so but rather a moral duty. The only liability is of the

third party i.e. the party which has committed the crime of phishing.

While phishing cases are rising in number but there is no mechanism or authority in place to take

cognizance of these matters. The only possible way for the victims of phishing to find remedy is

to report at the police station where the crime is committed. Due to lack of technology, the Indian

police department is not at all equipped to solve these identity theft related crimes. For the police

department, to be able to take stern actions it is required to have a cyber cell at each district if not

at every police station60. Even in the recent National Cyber Security Policy 2013 there are mere

suggestions but no actual method has been formulated to reduce the increasing number of identity

frauds61.

vii) Comparison to other countries

When compared to the US they have appropriate system for reporting of phishing crimes. Jeffrey

Brett Goodin became the first convicted cybercriminal by a jury in 2007 under the CAN- SPAM

Act, 2003 for sending thousands of e-mails to online users which prompted customers to submit

personal credit card information62. The CAN-SPAM Act is an act that is the direct response of the

55Singh, Netra, Online banking Fraud Using Phishing, 12 Journal of Internet Banking and Commerce 1-27 (2007). 56 India Penal Code, 1860, § 420, 379, 468, 471. 57 Information Technology Act, 2000, § 66A (c). 58 Shreya Singhal v. Union of India, 2010 12 S.C.C. 73. 59 Information Technology Act, 2000, § 66D. 60 Supra, 55 61 Supra, 17. 62Jeffrey Brett Goodin v. The United States of America, 28 U.S.C 2255 (2010).

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alarming number of complaints over spam e-mails and is also the first American cyber law which

establishes the national standards for sending commercial e-mails. These standards keep these

phishing activities in check63. In India there is no body or reporting system for specific offences

like phishing. There is a dire need for these types of standards in India. The Information

Technology Act 2000 has provisions that include phishing but there are no offence specific

provisions.

In the United States of America, the Electronic Communication Privacy Act 1986 was the first act

to regulate the internet related issues, prohibiting unauthorized intentional access to facility or

network and the interception of data. This act had both civil as well as criminal penalties64.

In England, the Anti-Fraud Act as passed in the year 2006 and in Wales and Northern Ireland by

the name Fraud Act, 200665. This Act banned the usage of phishing kits for creating and sending

e-mails in millions. This Act punishes frauds by the means of false representation, fraud by failing

to disclose information and fraud by abusing one’s position. This act was the first to punish the act

of phishing66.

III. Comparison: Cyber Policies of United Kingdom

A walk towards liberalisation paved way for cyber offences to dig its roots deep into the territorial

boundaries of India. Comparing and contrasting the policies of countries such as United Kingdom

which are having elevated defence mechanisms leaves us with the shortcomings of Indian laws.

First stage of comparison can be made on the bases of legislative prospective. To meet the

international standards India was reluctant to offer high level of security in the realm of cyberspace.

Legislations related to cyberspace began with the enactment of Information Technology Act 2000

with a view to frame a backbone of cyber security in India which ended up with loopholes and

incomplete interpretations. To underpin Information Technology Act 2000, in 2004 a statutory

body under the Ministry of Electronic and Information well known as the Indian computer

emergency response team [CERT-IN] was formed67. The objective of CERT-IN was to forecast,

alert and take emergency measures for handling cyber security incidents. It was also responsible

for providing with annual statistics on cyberattacks68. Shortly, an amendment was made in 2008

to broaden the penalising aspect of the Information Technology act 2000.

The amendment was done to ensure a more defined role to CERT-IN and to include identity theft

and data protection at an individual level only to settle for an overview of theoretically adequate

laws. Policies such as National Encryption Policy69 and National cyber security policy were only

63Federal Trade Commission, CAM-SPAM Act 2003, Federal Trade Commission Protecting Americas Consumer,

(Jan, 13, 2020, 10:00 am), https://www.ftc.gov/sites/default/files/documents/cases/2007/11/canspam.pdf 64United States Department of Justice, Electronic Communications Privacy Act of 1986 (ECPA), Justice Information

Sharing, (Jan, 13, 2020, 5:00 pm), https://it.ojp.gov/PrivacyLiberty/authorities/statutes/1285 65Government of United Kingdom, Fraud Act 2006, the Crown Prosecution Service, (Jan, 13, 2020, 5:00 pm),

https://www.cps.gov.uk/legal-guidance/fraud-act-2006 66 Id. 67Ministry of Electronics and Information Technology, Government of India, Welcome To CERT-IN, Indian

Computer Emergency Response Team, (Jan, 13, 2020, 5:00 pm), https://www.cert-in.org.in/ 68Ministry of Electronic and Information Technology, government of India, ICERT, Indian Computer Emergency

Response Team (Jan, 13, 2020, 5:00 pm), https://meity.gov.in/content/icert 69 Ministry of Electronic and Information Technology, Government of India, National Encryption Policy, Ministry

150

https://www.ftc.gov/sites/default/files/documents/cases/2007/11/canspam.pdf

https://it.ojp.gov/PrivacyLiberty/authorities/statutes/1285

https://www.cps.gov.uk/legal-guidance/fraud-act-2006

https://www.cert-in.org.in/

https://meity.gov.in/content/icert



like a statement of first principles. The National cyber security policy 2013 was introduced with a

strategy for implementation of integrated approach to guide the policy actions of various

institutions that would result in establishment of national and sectorial CERT-IN and CERT

respectively as well as formation of national information infrastructure protection centre

[NCIIPC]70. In United Kingdom the case of Regina v Gold and Schifreen71in which the court of

appeal coined that the laws in the country were not adequate enough and incapable to deal with

cybercrime thus UK was the first country to enact a legislation in the realm of cybercrime, the

computer misuse act 1990 penalised only 3 offences namely unauthorized access to computer

material72, access with intent to facilitate an offence73, and unauthorised modification of computer

material74. In 2006, the act was amended by the Police and Justice Act 2006 which increased

punishment for the already incorporated 3 offences and added another offence of supplying or

obtaining article for the offences mentioned section 1, 2, 375. It is crystal clear that UK realised the

need for protecting cyberspace long before India drafted its first legislation to tackle cybercrime

and took years to rectify the shortcomings. Computer misuse act 1990 even though a primary

legislation but to some extent is on point to criminate offences of skimming and identity theft76.

Second stage of comparison could be drawn out in terms of Data protection. Apparatus for Data

protection in India can be widely concluded through the national cyber security policy 2013 where

data protection was made a priority but among the prescribed ways only few were operational and

most of the steps mentioned in the policy are vague with whole and sole responsibility on the

government to implement the policy. Authority established under section 70A of the IT act 200077

namely National critical information infrastructure protection [NCIIPC] focuses on establishing

system of critical information infrastructure [CII] to rank the sectors for protection on the bases of

“criticality”78. Under the common law applicable in UK where there is a ‘sufficient relationship of

proximity’ duty of care is owned to another party whose act of carelessness harms the victim.79

Individual privacy is considered as a basic human right the person having control over such

sensitive information has an established relation to make him liable towards the owner of such

information. Considering privacy as a right, Data Protection Act 1998 was enacted to comply with

the EU regulations for privacy to ensure data protection by data controllers as well as penalization

of unauthorised access80. National cyber security strategy 2016 specifically in based on the

principles of defend, deter, develop. Moreover, the established National Cyber Security Centre

of Electronic And Information Technology, (Jan, 13, 2020, 5:00 pm),

https://meity.gov.in/writereaddata/files/national-encryption-policy-govt_0.pdf 70

Supra, 17. 71Regina v Gold and Schifreen, 1116 CACD, QB (1987). 72 Computer Misuse Act, 1990, § 1. 73 Computer Misuse Act, 1990, § 2. 74 Computer Misuse Act, 1990, § 3. 75Id. 76 Government of United Kingdom, Computer Misuse Act 1990, legislations.gov.uk, (Jan, 13, 2020, 5:00 pm),

https://www.legislation.gov.uk/ukpga/1990/18/contents 77 Information Technology Act, 2000, § 70A. 78Ministry of Electronic and Information Technology, Guidelines for critical information infrastructure, National

Critical Information Infrastructure Protection Centre, (Jan, 13, 2020, 10:00 am),

https://nciipc.gov.in/documents/NCIIPC_Guidelines_V2.pdf 79 Caparo Industries Plc v. Dickman, 2 Ac 605 (1990). 80 Government of United Kingdom, Data Protection Act 1998, legislations.gov.uk, (Jan, 13, 2020, 5:00 pm),

https://www.legislation.gov.uk/ukpga/1998/29/contents

151

https://meity.gov.in/writereaddata/files/national-encryption-policy-govt_0.pdf


https://nciipc.gov.in/documents/NCIIPC_Guidelines_V2.pdf




which combined parent body GCHQ and other statutory bodies CPNI, CERT-UK, CCA,

CESG81.Still Indian laws lack in unifications, there is no centralised authority to counter the data

theft. On comparing UK laws to the Indian laws, later are vague, more focused on cyber terrorism

and protecting governmental database rather than individual data, whereas the National Cyber

Security Strategy 2016 balances between three components government, business and individual82.

While contrasting the Indians statutes with United Kingdom, former have a more defensive

approach than an offensive approach.

Third stage of comparison can be made on the basis of individual data protection and related

offences. In India section 43, 43A, 66, 66C, 66D, 72, 72A of the IT act deal with identity theft,

ATM skimming and phishing. The liability of such offences as per reserve bank of India

notification rule 3 mandates banks to invest in cyber crises management plan to combat early

threats and such unusual cyber inferences has to be reported to RBI83. Hence such offences are

governed by notification of RBI. Whereas in UK there is no specific authority but the Financial

Conduct Authority covers the area of system controls over financial fraud84. Moreover, General

Data Protection Regulation 2018 [GDPR] puts a mandatory obligation on the organisations to

notify the individuals about data breaches which are likely to occur and such breach should also

to be reported by the organisation to information commissioner’s office within 72 hours85. Overall

responsibility is on the organisation to carry out work according to GDPR. Under the anti-fraud

act 2006 of England, wales and norther Ireland, phishing kits are banned for sending and creating

bogus emails. Thus, Indian laws are on a back foot when it comes to individual data breaches

leaving room for improvement in policies made in favour of identity theft86.

IV. Conclusion

Thus, Indian laws are on a back foot when it comes to protection of an individual’s data, leaving

a lot of room for improvement in laws as well as policies made in favour of identity theft. The

laxity in specific laws, acts as a host for such manipulative offences which have become more and

more common as compared to the last two decades. Indian cyber law lack in core implementation

and requisite expertise to curb identity theft, ATM skimming and phishing. To ensure adequate

implementation of the existing laws, there arises a need to establish proper system with efficient

hierarchy of jurisdiction. Overlapping of power should be curbed, and adequate humane personnel

should be employed. Advanced laws of different countries like United Kingdom could work as a

81 Government of United Kingdom, National Cyber Security Strategy 2016, HM government, (Jan, 13, 2020, 11:43

am),https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/567242/natio

nal_cyber_security_strategy_2016.pdf 82 Id. 83 Reserve Bank of India, Basic Cyber Security Framework for Primary (Urban) Cooperative Banks, Reserve Bank

of India notifications, (Jan, 13, 2020, 12:15pm)

https://rbidocs.rbi.org.in/rdocs/notification/PDFs/NT636E1566334F9A4F998C838D5AC6173A96.PDF 84Government of United Kingdom, Chapter 3: Sysc 3.2 Areas Covered by Systems And Controls Rule, GUIDANCE

Sysc 3.2.6, Financial Conduct Authority Handbook (Jan, 13, 2020, 1:00 pm)

https://www.handbook.fca.org.uk/handbook/SYSC/3/2.html 85 Government of United Kingdom, General Data Protection Regulation 2018 [GDPR], Information Commissioner’s

Office, (Jan, 13, 2020, 1:00 pm), https://ico.org.uk/for-organisations/guide-to-data-protection/guide-to-the-general-

data-protection-regulation-gdpr/ 86 Government of United Kingdom, Fraud Act 2006, the Crown Prosecution Service, (Jan, 13, 2020, 5:00 pm),

https://www.cps.gov.uk/legal-guidance/fraud-act-2006.

152

http://www.handbook.fca.org.uk/handbook/SYSC/3/2.html

http://www.handbook.fca.org.uk/handbook/SYSC/3/2.html

https://ico.org.uk/for-organisations/guide-to-data-protection/guide-to-the-general-data-protection-regulation-gdpr/

https://ico.org.uk/for-organisations/guide-to-data-protection/guide-to-the-general-data-protection-regulation-gdpr/

https://www.cps.gov.uk/legal-guidance/fraud-act-2006



frame for improvement in existing laws along with the national cyber security policy 2013 which

involve adequate framework for laws but lacks implementation. India lies at the base of well-

developed cyber laws; however, attempts such as Data Protection Bill, 2019 may contribute in the

quest to achieve security of personal data of individuals.

153



The Cost of Environmental Non-Compliance – Does the Polluter Really Pay?

Nikita Singhi and Vishwas Bharadwaj1

Abstract

Awareness about the environmental impact left in the wake of companies and their operations

has been spreading rapidly and is starting to become the biggest talking point in this era of

climate change. This article attempts to examine the extent to which this emergent

environmental consciousness influences investor decisions. To this end, the hypothesis to be

tested herein is “the price of shares of a company is influenced by the publication of

environmental compliance/non-compliance on its part”. This involves a study of market

behaviour, emerging trends, and ideas - both Indian and international - as well as the success

of these movements. Upon undertaking a critical analysis of the reasoning and thought process

behind investment decisions in this context, this article makes certain recommendations in

order to expedite the growth of sustainable investing as the norm rather than the exception.

Therefore, the present research paper attempts to analyse the polluter pay principle in the

international as well as national domain.


I. Introduction

It has long been the norm for investors to painstakingly analyse companies in depth for past,

current, and speculative future risks before making a commitment with their money. While this

analysis has traditionally been restricted to financial performance, in the current era of climate

change, environmental awareness, and increased scrambling for natural resources, it has been

noticed that companies are often distinguished not only by the numbers they churn out, but also

the effect they have on the environment. It seems that investors are starting to account for

environmental impact as one of the many factors to be evaluated before making investment

decisions.2 However, to properly examine the truth of this assertion, this article seeks to examine

the relationship between a company’s environmental (non)compliance, and the market price of its

shares. Today’s globalized, liberalized economy is structured so as to directly reward companies

which can produce the most wealth for their shareholders, and operates on the premise that this

wealth creation will benefit the economy as a whole.3 However, an issue of rising prominence is

that due to advanced industrialization, manufacturing processes in almost every industry exploit

resource and necessarily leave an environmental impact. The larger the scale of production, the

larger the environmental impact. The bottom line of this observation is that short-term wealth

creation, while rewarded and (arguably) encouraged by the current economic system, is not

sustainable and will inevitably cause unimaginably serious issues in the long run.

To reconcile the interests of corporations with those of the planet as a whole, a dedicated army of

environmental activists, NGOs, and average citizens have been working to spread as much

1

Nikita Singhi, Final Year, B.A. LL.B. (Hons.) National Law Institute University, Bhopal; and Vishwas Bharadwaj,

Final Year, B.A. LL.B. (Hons.) School of Law, SASTRA Deemed University, Thanjavur. 2 Denis Cormier & Michel Magnan, Investors’ Assessment of Implicit Environmental Liabilities: An Empirical

Investigation, 16 J. ACC. & PUB. POL’Y 215, 2177 (1998). 3 Frank Scrimgeour, The Impact of Corporate Environmental Performance on Market Risk: The Australian Industry

Case, 132 J. BUS. ETHICS 347, 348 (2015).

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awareness about the impending climate crisis as possible and force governments into action. It

would appear that their efforts have borne fruit. The past few decades have seen a significant

escalation in environmental regulatory regimes around the world, and companies are finding that

governmental interference in the environmental impact of their operations is an unavoidable part

of doing business. Governments and NGOs are not the sole participants in this global increase in

awareness about the environment, however. Investors, both individual and institutional, have also

begun insisting upon a higher standard of environmental compliance. Doubtless, an argument may

be made that this insistence operates hand in glove with the truism that any company with a

holistically sustainable method of doing business is bound to be a better investment option than an

unsustainable counterpart. Therefore, the logical progression in a foray to arrive at the truth is to

determine whether the increased emphasis on environmental compliance manifests in an empirical,

quantifiable variation in share price.

II. International Position

a. United Nations Principles for Responsible Investment (UNPRI)

Perhaps the most significant international development in terms of uniformity has been a United

Nations supported initiative – the United Nations Principles for Responsible Investment (UNPRI)

– which was launched in April 2006. Drafted by institutional investors for institutional investors,

the UNPRI is a set of 6 Principles which illustrate the practice of “responsible investment”. The

UNPRI guidelines on responsible investment recommend the incorporation of environmental,

social and governance (hereinafter “ESG”) factors into investment decisions, to mitigate risk and

ensure sustainable returns.4 In a minor departure from the norm with UN programs, the signatories

to the UNPRI are organizations, which fall into one of the following three categories:

1. Asset Owners

Organizations that represent the holders of long-term retirement savings, insurance, and other

assets. Examples include pension funds, sovereign wealth funds, foundations, endowments,

insurance and reinsurance companies, and other financial institutions that manage deposits.5 This

is the principal category of signatory.6

2. Investment Managers

Organizations that administer or run investment funds, on their own accord or at the behest of

others, provided they have ownership of less than half of these funds.7

3. Service Providers/Professional Service Partners

Organizations which provide products or services to the above-mentioned organizations.8While

these companies do not act as stewards/managers of assets themselves, they exercise considerable

influence over the manner in which their clients’ approach ESG issues.9These organizations

undertake a commitment to promoting, providing and developing services which facilitate their

clients’ realization of the Principles.

4UN Principles for Responsible Investment, at https://www.unpri.org/pri/what-is-responsible-investment. 5Id. 6Id. 7Id. 8Id. 9Id.

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There are currently over 2,300 signatories to the UNPRI.10 To become a signatory to the UNPRI

program is to demonstrate one’s commitment to publicly follow and advocate for the 6 Principles

it espouses. Therefore, each of these organizations takes it upon itself to integrate ESG

considerations into investment analysis, decision-making strategy, management decisions;

cultivate acceptance and application of the Principles, and provide regular updates towards the

implementation of these Principles.11

General Market Behaviour

It is indisputable that the UNPRI has had significant success in its effort to harmonize the standard

of ESG norms to which organizations should adhere vis-à-vis its signatories. ESG-based investing

has been an emerging trend across the globe, with 26 per cent of all investing being done on the

basis of ESG norms.12 On the subject of the performance of ESG Funds around the world and the

proliferation of the idea among a global investor base, Sivananth Ramachandran, Director, New

Product Development (Indexes), Morningstar India summarized the position in the following

manner:

“Sustainable funds have performed well in the last few years. According to 2018

Morningstar US ESG landscape report, sustainable funds, on average,

outperformed on a relative basis in 2018. A full 63 per cent of sustainable funds

finished in the top half of their respective categories, including 35 per cent in the

top quartile. Only 37 per cent finished in the bottom half, including just 18 per cent

in the bottom quartile. For equity funds alone, the percentages were about the same,

and there were no significant differences between ESG consideration, ESG

integration, and impact funds. On the strength of last year’s returns, 57 per cent of

sustainable funds now rank in the top half of their categories over the trailing three

years. For the trailing five years, 58 per cent rank in their category’s top half. In

Europe, at the end of 2018, returns of 32 per cent of sustainable funds landed in the

top quartile of their respective Morningstar Categories, and 62 per cent finished in

the top half. By contrast, the returns of only 17 per cent placed in the bottom

quartile. In the Indian context, Morningstar India Sustainability Index, a broad and

diversified portfolio of Indian companies which targets the top half of Indian

market by market cap out-performed on a 1-year and 5-year basis.”13

While this is commendable in its own right, the global position regarding non-signatories is far

from uniform. An abundance of literature and surveys on the subject reveal that while the reasoning

and details may vary, the overarching theme of the result is consistent.

Traditionally, expenditure on environmentally sound practices such as waste management or

effluent treatment is considered non-productive.14 It simply viewed environmental expenditure as

10Id. 11Id. 12 Kiran Kabtta Somvanshi, Why India is Turning into ESG Funding Hotspot, ECONOMIC TIMES, Feb. 11, 2019,

http://www.businessworld.in/article/ESG-Is-The-Fastest-Growing-Investment-Approach-Globally-Chirag-Mehta-

Quantum-AMC/13-07-2019-173281/ (May 16, 2020) [hereinafter ESG funding hotspot]. 13 Larissa Fernand, What Indian investors need to know about ESG, MORNINGSTAR, June 14, 2019, at

https://www.morningstar.in/posts/53130/indian-investors-need-know-esg.aspx (last visited May 16, 2020). 14 K. Palmer et al., Tightening Environmental Standards: The Benefit–Cost or the No-Cost Paradigm, 9 J. ECON.

PERSP. 119, 132. (1995)

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having no gain or return. This is perhaps because at the time, the environment was viewed as a

limitless resource incapable of depletion. Therefore, there was no “cost” to consuming resources.

When a company is of the view that there is no cost to a certain proposition, it is perhaps too much

to expect it to refrain from exploiting the situation to the fullest. In hindsight, it is unsurprising that

it is this mentality that has led to a severe global environmental crisis today.

Perhaps the earliest and most widely quoted study which presented a differing view on the subject

is one conducted by Porter and Van Der Linde,15 in which they argued from a micro-economic

perspective that relying on polluting practices results in mounting costs and is inefficient when

compared to spending more on clean practices that are sustainable. They advocated for the framing

of investment decisions in terms of “resource productivity” (the ability to produce more per unit

of resource consumed) and asserted that this increases the economic value of the entire enterprise.16

Since then, a growing movement has been arguing that companies with environmentally sound

policies (e.g., to reduce harmful by-products, reuse raw material, etc.) consequently have efficient

production chains, resulting in a strategic advantage.17 Firms with sound environmental profiles

have lower risk of incurring “compliance costs” and are therefore safer investments. Put simply,

if a company is not flouting the regulations, it faces no threat of action against it, and does not

need to worry about potential legal costs, fines, penalties, etc. From a narrow, accountant’s point

of view, this is one less liability for the company to have to fret about. Apart from this, the

declaration of a positive environmental conduct or funding cleaner technologies may have a

beneficial impact on investment, as it leads to lesser scrutiny by regulators and communities,

greater access to international markets, etc.18 Regulators and investors have limited resources as

well and there is a clear advantage to any company which can freely disclose material information

to show that it is environmentally compliant, and not put the onus on the investor/regulator to have

to investigate and verify such facts.

On this point, Klassen and McLaughlin19 concluded that that public recognition of positive

environmental conduct such as a nomination for a “clean company” award led to positive abnormal

returns, while negative publications such as false disclosures of pollution levels caused abnormal

negative returns. An earlier study by Karpoff20 reached a similar conclusion.

A separate study by Hamilton21 in the wake of the EPA’s Toxic Release Inventory Program

showed that companies suffered abnormal negative returns upon declaration of Toxic Release

Inventory (hereinafter TRI) emissions when first disclosed in 1989. This seems to suggest that the

large body of investors was unaware of the pollution profile of the companies in which they were

investing. Once the exact figure came to light, it was easier to make an informed decision and

15 M. E. Porter & C. Van Der Linde, Toward a New Conception of the Environmental Competitiveness Relationship,9

J. ECON. PERSP. 97, 118 (1995). 16Id. 17Id. 18 R. D. Klassen & C. P. McLaughlin, The Impact of Environmental Management on Firm Performance, 42 MGMT.

SCI., 1199, 1213 (1996). 19 Id. 20 J. M. Karpoff & J. R. Lott Jr., The Reputational Penalty Firms Bear from Committing Criminal Fraud,36 J. L.&

ECON. 757, 802 (1993). 21 J. Hamilton, Pollution as News: Media and Stock Market Reactions to the Toxics Release Inventory Data, 28 J.

ENV’T ECON. & MGMT. 98, 113 (1995).

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avoid investing in such companies. This study is especially important, as it demonstrates in clear

terms the importance of such information being publicly accessible.

Konar and Cohen22 studied the same issue 2 years later and observed that companies which

suffered from the aforementioned negative abnormal returns also had the highest reduction in TRI

emissions in subsequent years. This is equally important as it shows that the companies understood

that it was their polluting practices which had discouraged investment and actively worked to

correct the same. Thus, there is clear evidence of market forces working to compel companies to

adopt better environmental practices without regulator intervention. This is quite encouraging as

it depicts an ideal situation in which the dissemination of information is enough to spur the investor

base and the company to act towards achieving compliance for mutual benefit.

The above-mentioned studies all attempted to cover a broad, global investor base. However, it is

apposite to take into account studies which focus on investor behaviour in specific

regions/countries. Accordingly, studies which focus on older, more well-developed economies as

well as their counterparts which focus on younger, less-developed economies have been selected

in an effort to give equal representation to both sides.

III. Global Position at a Glance

a. Well developed Economies

Specifically for the US market, it has been noted that although the regulatory regime impacts the

holding period returns and its correlation with environmental performance, the measure of

regulatory climate and the measure of environmental performance showed no such demonstrable

correlation.23 While proactive action towards environmentally sound policy does not directly affect

financial performance, there exists a positive impact on regulatory climate.24A study of publicly

traded S&P 500 firms showed that after accounting for extraneous variables which affect a firm’s

financial performance, mediocre environmental performance significantly negatively affects the

value of intangible assets, both economically and statistically.25The same result has been observed

in Canada as well, where studies observe that the declaration of negative environmental news leads

to a decrease in market value of a firm.26

In both Romania27 and China,28 a similar conclusion was drawn, albeit with the mention that the

inherent decrease in production costs for industries in the energy sector was also relevant to an

increase in share price. It should also be noted that Romania has been considered a well-developed

economy by virtue of its EU membership and resultant association with economic powerhouses of

22 S. Konar & M. Cohen, Information as Regulation: The Effect of Community Right to Know Laws on Toxic

Emissions, 32 J. ENV’T ECON. & MGMT. 109, 124 (1997). 23 Greg Filbeck and Raymond Gorman, The Relationship between the Environmental and Financial Performance of

Public Utilities, 29 ENVTL & RESOURCE ECON. 137, 140 (2004). 24Id. 25 S. Konar& M. Cohen, Does the Market Value Environmental Performance? 83 R. ECON. & STAT. 281, 289 (2001). 26 B. Laplante & P. Lanoie, The market response to environmental incidents in Canada: A theoretical and empirical

analysis, 60 S. ECON. J. 657, 672 (1994). 27 Elena Dobret et al., The Influence of Environmental and Social Performance on Financial Performance: Evidence

from Romania’s Listed Entities, 7 SUSTAINABILITY 2513, 2553 (2015). 28 X. Pan et al., Relationship between Corporate Social Responsibility and Financial Performance in the Mineral

Industry: Evidence from Chinese Mineral Firms, 6 SUSTAINABILITY 4077, 4101 (2014).

158



the region.29

In Japan, a slightly different relationship was observed - wherein for the “environmentally

friendly” industries, the financial performance as indicated by Return on Equity and Return on

Assets did not show statistically significant relationship. The “polluter” industries on the other

hand showed an inverse relationship between Return on Assets and greenhouse gases.30

b. Less-developed Economies

A comprehensive study on 4 countries of this description viz. Mexico, Philippines, Chile, and

Argentina concluded that contrary to popular belief comparatively weaker regulatory regimes

which cannot control pollution effectively through conventional ways such as fines and penalties

do not act as obstacle to pollution management and control.31 Per contra, the study argued that the

spread of information is enough for investors to make well-reasoned decisions and shun non-

compliant companies, thereby punishing them more effectively than a regulator. The study also

observed that announcements of compliance with environmental regulations when recognized32

by the authorities lead to an increase in market value of over 20 per cent for the event window,

while negative changes were observed upon publication, and prior to the actual imposition of any

fine or liability.33These findings are largely consistent with investor behaviour in well-developed

economies.

Nigeria – An Exception to the Norm

On the other hand, a study in Nigeria34 revealed that there was no relationship between

environmental expenditure and a firm’s market valuation. The study further observed that

environmental expenditure is not affected by a firm’s market valuation.35 Therefore, the twin

conclusion is that companies which are guilty of environmental non-compliance do not face any

loss of value, and companies which spend more on environmental compliance do not increase in

value. This study represents the only deviant conclusion, which is most likely attributable to the

extremely under-developed nature of Nigeria’s economy, when compared to the other regions that

were studied. One can quite easily imagine that investor sentiment in this region would value

financial performance to the exclusion of all else, unlike the better-developed regions studied.

Thus, with the exception of Nigeria, the overall international position indicates that investors do

not take kindly to news of environmental non-compliance and make investment decisions

accordingly. Further, this effect can be inferred in quantifiable terms from a noticeable drop in the

29Indermit Gill, Romania has a great advantage on developing countries: it is part of the most important economic

club in the world, the EU, WORLD BANK, June 24, 2013,

https://www.worldbank.org/en/news/opinion/2013/06/24/romania-has-a-great-advantage-on-developing-countries- it-is-

part-of-the-most-important-economic-club-in-the-world-the-eu May 16, 2020). 30 H. Itawa& K. Okada, how does environmental performance affect financial performance? Evidence from

Japanese manufacturing firms, 70 ECOLOGY ECON. 1691, 1700 (2011). 31Nlandu Mamingi, Capital Market Responses to Environmental Performance in Developing Countries, WORLD

BANK DEVELOPMENTAL GROUP (1997). 32Id. 33Id. 34Omoike Amiolemen et al., Corporate social environmental reporting and stock prices: an analysis of listed firms in

Nigeria, 15 INV. MGMT. & FIN. INNOVATIONS 318, 328 (2018); A. Solomon et al., Effect of Corporate Social

Responsibility Performance (CSR) on stock prices: Empirical Study of Listed Manufacturing Companies in Nigeria,

16 J. BUS. MGMT. 112, 117 (2018). 35Id.

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share price of such errant companies on the day such news/disclosures become generally available

to the investing public. A few of these cases are discussed below:

The Volkswagen Example

In terms of international examples of a company’s investors reacting badly to news of

environmental non-compliance, one would be hard pressed to find a more high-profile instance

than the Volkswagen diesel emissions scandal. From an Environmental Protection Agency

investigation in 2015, it came to light that Volkswagen, in a bid to become the largest automobile

manufacturer in the world, had been systematically cheating emissions tests on its diesel vehicles

in the USA. The method by which it did this was incredibly sophisticated and involved installing

smart software in the engine of its diesel vehicles which prompted the engine to run at a reduced

capacity in laboratory testing situations to limit emissions. When on road, the engine ran at a higher

capacity and therefore produced up to 40 times more emissions than the permissible limit under

the USA’s Clean Air Act.

Upon the so-called “defeat devices” being discovered, the news spread like wildfire and

Volkswagen saw its reputation shattered overnight. It should be kept in mind that at this point, no

actual fines had been imposed, and no recall of non-compliant vehicles had been announced. Yet,

the share price of Volkswagen took a big hit in the market and the company saw 25 per cent of its

market value erased. Its shares dove down 23 per cent to 125.40 Euros, decreasing its market value

by 15.6 Billion Euros.36 These figures represent the most quantifiable form of investor displeasure

and augured just how much backlash Volkswagen would face as a result of its admission. The

company has not yet left the scandal behind, and is likely to face further fines and penalties in the

USA alone.

The Deepwater Horizon Example

Another example is the explosion of British Petroleum’s Deepwater Horizon oil drilling platform

operating off the Macondo Prospect in 2010, causing the biggest oil spill in the history of the

United States. Approximately 772 million litres of crude oil were pumped into the Gulf of Mexico

before the spill was contained. The rig was found to have flouted several regulations and safety

requirements, which lead to the explosion and subsequent sinking of the entire platform. The cost

of the clean-up was immense, and cost around USD 24 billion. As a result, British Petroleum’s

share price plummeted 55 per cent from $59.48 on April 19, 2012 to $27 per share on June 25,

2010.37 It need hardly be stated that this drop was meteoric.

However, British Petroleum founded the 20 billion dollars ‘Deepwater Horizon Oil Spill Trust

Fund’ to defray the foreseeable costs and claims arising out of the incident and could fund the

entire amount from cash and cash equivalents it already possessed. Therefore, in strict financial

terms, BP ceased to feel the monetary effects of the incident within a couple of years. Nonetheless,

its share price did not recover. This disparity between share price and actual financial impact can

be attributed squarely to the loss of reputation suffered by BP, and the growth of a more well-

36 Naomi Kresge and Richard Weiss, Volkswagen Drops 23 per cent After Admitting Diesel Emissions Cheat,

BLOOMBERG, Sept. 21, 2015, https://www.bloomberg.com/news/articles/2015-09-21/volkswagen-drops-15-after-

admitting-u-s-diesel-emissions-cheat May 16, 2020). 37 Yogita Khatri, Companies with higher ESG score are better investment picks, ECONOMIC TIMES, Dec. 26, 2016,

https://www.moneycontrol.com/news/business/stocks/tata-motors-lakshmi-vilas-bank-zenith-fibres-among-10-

stocks-which-moved-the-most-last-week-3774711.html (May 16, 2020) [hereinafter Companies with higher ESG].

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informed investor base. This can be seen in contrast with the 1989 Exxon Valdez oil spill which,

despite being the most expensive oil spill at the time, only saw a drop of 3 per cent in ExxonMobil’s

share price.38

IV. Indian Position

Much like the above examination of the international position, the study of the Indian market will

be divided into 2 major portions – the growth of ESG investing, and general market behaviours

independent of specific ESG norms.

The Growth of ESG Investing

While the Indian market has not taken to the concept of ESGs as readily as its western counterparts,

the idea has undoubtedly gotten its foot in the door. However, in recent years, there have been

significant steps from various investors towards encouraging sustainable and environmentally

conscious investing, summed up as follows:

a) Kotak Mahindra Asset Management Co. Ltd. became the first Indian Asset Management

Company signatory to the UNPRI in April 2018;

b) In February 2019 India’s first ESG Equity Fund – Avendus India ESG Fund was launched

by Avendus Capital Public Markets Alternate Strategies, the alternate asset management arm of

Avendus Capital;

c) In June 2019, Quantum Asset Management Company Pvt. Ltd. launched an ESG Fund –

the Quantum ESG Fund.39

The SBI Magnum Fund, instituted in 1991, also recently adopted the ESG norms as criteria for

investments.40

As per Sivananth Ramachandran, “sustainable investing” has become a major trend in recent years,

as it emphasizes on how firms handle ESG risks, which is especially significant for growing

markets such as India wherein the environmental and labour regulations, standard of corporate

governance, and the extent of transparency are not at par with those of developed markets.41

In India, ESG Indices displayed greater performance as well as equal or less volatility in the long

run when contrasted with the Nifty, resulting in higher profits, once adjusted for risk.42 To illustrate

this, the Morgan Stanley Capital India (MSCI) ESG Leaders Index which covers thirty-five

companies with relatively high ESG performance fared better than the approximately eighty-

member MSCI Index during the period spanning September 2007 - January 2019. In a similar vein,

38 Sara Murphy, 25 Years on From Exxon Valdez: What We've Learned, What We've Ignored, THE MOTLEY FOOL,

Mar. 24, 2014, https://www.fool.com/investing/general/2014/03/24/25-years-on-from-exxon-valdez-what-weve-

learned-wh.aspx (May 16, 2020). 39ESG funding hotspot, supra note 12. 40Ibid. 41Companies with higher ESG, supra note 37. 42 Aniruddha Bose, ESG is the Fastest Growing Investment Approach Globally: Chirag Mehta, Quantum AMC,

BUSINESS WORLD, July 12, 2019, http://www.businessworld.in/article/ESG-Is-The-Fastest-Growing-Investment-

Approach-Globally-Chirag-Mehta-Quantum-AMC/13-07-2019-173281/ ( May 16, 2020).

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Morningstar’s Sustainability Index showed returns of 14.8 per cent from 2012 - 2016, as opposed

to 13.7 per cent returns for Morningstar’s India Index.43

These results are consistent with the intuitive position, as ESG Funds tend towards low risk, high

quality stock, which should remain stable and perform well in the long- term. Therefore, it is quite

clear that ESG investing is a fast-growing investment trend globally, with 25 per cent of

institutional investment already branded ESG.44 It stands to reason that, given the size and potential

of the Indian market, ESG investment should have taken it by storm. While it has been gaining

popularity, progress has been slow, with only the four aforementioned recognized ESG Funds

operating at the moment and three more45 in the pipeline.

Reasons for Slow Growth

This paper advances three possible reasons for the slow growth of ESG investing as a concept in

India, to be discussed as follows:

i) Misleading classification:

The first possible reason for this phenomenon is that, due to the current classification criteria, ESG

investing is considered “Thematic Investing”. Thematic Investing is described as an investment

scheme that is usually open ended and follows a certain theme.46 It may traverse several sectors,

as long as the theme remains consistent. SEBI describes Thematic Investment as the riskiest form

of investment, as investors have to be well versed with the theme in question in order to make

informed investments.47 This is quite unfortunate, as it has led to the misconception that ESG

investment is a risky proposition, while nothing could be further from the truth. ESG Investment

is thematic only so far as high compliance with social, environmental, and governance standards

cannot be restricted to any particular sector or industry. There is no special knowledge an investor

requires in order to make good ESG investment decisions. However, as ESG investing comes

under the larger blanket of Thematic Investing, plenty of casual/novice investors would be deterred

from attempting it.

ii) Lack of incentive/regulation to disclose

When companies attempt to access capital markets to raise funds, they have to adhere to, inter alia,

the SEBI Listing Obligations and Disclosure Requirements (LODR), 2015. Regulation 30 when

read with Schedule III of the LODR, stipulates events which a company must reveal as “material

43ESG funding hotspot, supra note 12. 44Ibid. 45Draft Scheme Information Document, ICICI Prudential ESG Fund, t https://www.sebi.gov.in/filings/mutual-

funds/jul-2019/icici-prudential-esg-fund_43602.html; Draft Scheme Information Document, Quantum Swachh India

ESG Equity Fund, https://www.sebi.gov.in/filings/mutual-funds/feb-2019/quantum-swachh-india-esg-equity-

fund_42000.html; Draft Scheme Information Document, BNP Paribas India ESG Fund,

https://www.sebi.gov.in/filings/mutual-funds/jun-2019/bnp-paribas-india-esg-fund_43248.html. 46 Item 9, Annexure A, Categorization and Rationalization of Mutual Fund Schemes, Securities and Exchange Board

of India, SEBI/HO/IMD/DF3/CIR/P/2017/114 (2017). 47Understanding SEBI’s new fund categories, FUNDS INDIA, June 4, 2018, https://www.fundsindia.com/blog/mf-

basics/investment-definitions/understanding-sebis-new-fund-categories/13708 (May 16, 2020).

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http://www.sebi.gov.in/filings/mutual-funds/jun-2019/bnp-paribas-india-esg-fund_43248.html

http://www.sebi.gov.in/filings/mutual-funds/jun-2019/bnp-paribas-india-esg-fund_43248.html

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disclosures”, as well as a list of events which are deemed to be material. Environmental

compliance/non-compliance does not feature in this list in any shape or form. As a result, barring

an actual regulatory action/ongoing dispute, a company is not mandated to disclose any

environmental information at all. The only circumstance under which such information would be

disclosed is if the Key Managerial Person appointed by the Board of Directors for such purpose

were to decide, of their own accord,48 that environmental compliance is a material event. Thus,

there exists no method to compel such disclosure under the regulatory framework. In the absence

of credible information about the company’s environmental profile, it is a futile task to properly

rank and invest in environmentally sound companies.

iii) ESG Norms being entirely voluntary

The BSE49 and NSE50 have both released guidance papers on the subject of ESG investing. While

this is undoubtedly a positive step, both papers laboriously state in explicit terms that while ESG

investing is the only sustainable form of investment and is the best method of building Long Term

Sustainable Value (LTSV), it is entirely voluntary. This is perhaps too soft an approach for a

market like India, more so as the NSE Guidance Paper itself notes that trends in India suggest that

there is a lack of innate reporting culture in businesses and therefore regulators play a larger role

in eliciting disclosure.51 Given that this is so, it seems rather ineffective to merely advocate for

ESG investing, without doing anything to incentivize/reward its adoption.

General Market Behaviour

ESG norms aside, the shares of companies in the Indian market also demonstrate price variations

consistent with the international position i.e. upon publication of an environmental non-

compliance, share prices tend to drop. This is evinced from the following instances: The shares of

Birla Corp dropped by 14 per cent to Rs. 485 after the NGT ordered them to cease mineral

extraction inside Chittorgarh municipal limits, within a 10 km radius of Bassi Wildlife Sanctuary,

or inside an Eco-Sensitive Zone in the region.52SRF Ltd.’s shares slipped 5 per cent to Rs. 2281

on the Bombay Stock Exchange after the Gujarat Pollution Control Board ordered the closure of

an industrial plant on allegations of flouting provisions of the Water Act, 1974.53Similarly,

Graphite India’s shares slipped by 3 per cent in response to the Karnataka Pollution Authority’s

closure of its Bangalore manufacturing operation.54One day after the Maharashtra Pollution

48 Regulation 30(5), Listing Obligations and Disclosure Requirements, Securities and Exchange Board of India,

SEBI/LAD-NRO/GN/2015-16/013 (2015). 49 Guidance Document on ESG Disclosures, Bombay Stock Exchange,

https://www.bseindia.com/downloads1/BSEs_Guidance_doc_on_ESG.pdf (May 16, 2020). 50Umakanth Varottil, Environmental and Social Reporting by Indian Companies, National Stock Exchange,

https://www.nseindia.com/research/content/QB_January_2019.pdf (May 16, 2020). 51Id. at 5. 52Birla Corp slips 14 per cent on NGT order to stop mining at Rajasthan unit, BUSINESS STANDARD, Mar. 11, 2019,

https://www.business-standard.com/article/markets/birla-corp-14-on-ngt-order-to-stop-mining-activities-of-rajathan-

unit-119031100125_1.html ( May 16, 2020). 53SRF slips 5 per cent as Gujarat pollution board orders shutdown of Dahej plant, BUSINESS STANDARD, Apr. 1, 2019,

https://www.business-standard.com/article/markets/srf-slips-5-as-gujarat-pollution-board-orders-shutdown-of-dahej-

plant-119040100150_1.html ( May 16, 2020). 54Graphite India slips 3 per cent as KSPCB orders shutdown of Bengaluru plant, ECONOMIC TIMES, FEB. 19, 2019,

https://economictimes.indiatimes.com/markets/stocks/news/graphite-india-slips-3-as-kspcb-orders-shutdown-of-

163

http://www.bseindia.com/downloads1/BSEs_Guidance_doc_on_ESG.pdf



http://www.nseindia.com/research/content/QB_January_2019.pdf



http://www.business-standard.com/article/markets/birla-corp-14-on-ngt-order-to-stop-mining-activities-of-rajathan-

http://www.business-standard.com/article/markets/birla-corp-14-on-ngt-order-to-stop-mining-activities-of-rajathan-

http://www.business-standard.com/article/markets/srf-slips-5-as-gujarat-pollution-board-orders-shutdown-of-dahej-

http://www.business-standard.com/article/markets/srf-slips-5-as-gujarat-pollution-board-orders-shutdown-of-dahej-



Authority closed its Thane plant, the shares of Huhtamaki PPL fell 7 per cent on BSE.55Radico

Khaitan’s shares plunged for eleven consecutive trading sessions from 8th Feb to 21st Feb, 2019,

in response to the Central Pollution Control Board’s shutting down of its Rampur plant. The total

drop in share price amounted to 20 per cent, finishing at Rs. 349.56

The above-mentioned examples indicate that there exists a relationship between investor sentiment

and environmental compliance. To further illustrate this, there are several instances wherein the

share price of a company has increased as a result of positive/favourable environmental news.

Such instances are set out below: On 3rd July, Excel Crop Care’s stock increased by 6 per cent

after the Gujarat Pollution Control board suspended its order to close Excel’s Bhavnagar plant for

three months in response to the company submitting an action plan.57Vedanta’s stock rallied 6 per

cent after the order of the National Green Tribunal (NGT) allowed Vedanta to reopen the

Thoothukudi copper plant and directed Tamil Nadu authorities to renew their consent and restore

electricity within 3 weeks.58Rallis India’s stock rose 1.17 per cent to Rs 156.25 in response to the

company’s declaration that Gujarat Pollution Control Authority had reconsidered its earlier

direction to cease activity at Dahej plant.59Hyderabad-based pharmaceutical company Everest

Organics reported that the Telangana State Pollution Control Board had, upon inspection of its

facility, permanently revoked its earlier closure order, leading to a share price surge of 36 per

cent.60

Thus, one can quite easily infer that the general position of the average Indian investor is to regard

environmental non-compliance as bad news and either reduce or avoid investing in errant entities.

This is therefore largely consistent with the international position.

V. Greenwashing

As unsavoury as the practice is, the establishment of “greenwashing” as a widespread phenomenon

in the Indian market indicates that companies are also of the opinion that environmental news

(credible or otherwise) has a significant impact on their share performance. “Greenwashing”, a

term introduced in 1986 by environmentalist Jay Westerveld, refers to the phenomenon of

bengaluru-plant/articleshow/68059042.cms (May 16, 2020). 55Huhtamaki PPL cracks 7 per cent on directive to shut Thane plant, ECONOMIC TIMES, Nov. 22, 2018,

https://economictimes.indiatimes.com/markets/stocks/news/huhtamaki-ppl-cracks-7-on-directive-to-shut-thane-

plant/articleshow/66745122.cms (May 16, 2020). 56Radico Khaitan shares crack after pollution regulator directs closure of Rampur plant, CNBC TV18, Feb. 21, 2019,

https://www.cnbctv18.com/market/stocks/radico-khaitan-shares-crack-after-pollution-regulator-directs-closure-of-

rampur-plant-2362541.html (May 16, 2020). 57 Excel Crop Care jumps 6 per cent after Gujarat Pollution regulator withdraws closure order, MONEY CONTROL, July

3, 2017 https://www.moneycontrol.com/news/business/markets/excel-crop-care-gujarat-pollution-control-board-

4164691.html (May 16, 2020). 58Vedanta gains 6 per cent after NGT orders reopening of Sterlite copper plant, BUSINESS STANDARD, Dec. 17, 2018,

https://www.business-standard.com/article/markets/vedanta-gains-6-on-favorable-ngt-order-on-sterlite-copper-plant-

118121700116_1.html (May 16, 2020). 59Rallis India firms up after GPCB revokes closure order, BUSINESS STANDARD, July 12, 2019, https://www.business-

standard.com/article/news-cm/rallis-india-firms-up-after-gpcb-revokes-closure-order-119071200671_1.html (May

16, 2020). 60 Rakesh Patil, Tata Motors, Lakshmi Vilas Bank, Zenith Fibres among 10 stocks which moved the most last week,

MONEY CONTROL, Apr. 7, 2019, https://www.moneycontrol.com/news/business/stocks/tata-motors-lakshmi-vilas-

bank-zenith-fibres-among-10-stocks-which-moved-the-most-last-week-3774711.html (May 16, 2020).

164

http://www.cnbctv18.com/market/stocks/radico-khaitan-shares-crack-after-pollution-regulator-directs-closure-of-

http://www.cnbctv18.com/market/stocks/radico-khaitan-shares-crack-after-pollution-regulator-directs-closure-of-

http://www.moneycontrol.com/news/business/markets/excel-crop-care-gujarat-pollution-control-board-

http://www.moneycontrol.com/news/business/markets/excel-crop-care-gujarat-pollution-control-board-

http://www.business-standard.com/article/markets/vedanta-gains-6-on-favorable-ngt-order-on-sterlite-copper-plant-

http://www.business-standard.com/article/markets/vedanta-gains-6-on-favorable-ngt-order-on-sterlite-copper-plant-

http://www.moneycontrol.com/news/business/stocks/tata-motors-lakshmi-vilas-

http://www.moneycontrol.com/news/business/stocks/tata-motors-lakshmi-vilas-



companies making exaggerated claims of positive environmental policy as a marketing tactic.61

The fact that several successful companies62 indulge in greenwashing drives home the point that

companies also understand that investor perception of their environmental compliance matters

enough to spend millions of dollars on. While greenwashing is practiced by a relative minority of

companies, it is hoped that the underlying understanding regarding environmental compliance and

share performance is shared by more ethical companies which spend on actual compliance.

This conclusion appears to have been adopted in toto by the policy makers who drafted the Indian

Companies Act, 2013 as well. The Act took a positive step towards inculcating responsible

investment by imposing a Corporate Social Responsibility obligation (of which environmental

obligations form a large part) on Companies via the introduction of Section 135, specifically

Section 135(5). While this section is the subject of an amendment vide the recently passed

Companies (Amendment) Act, 2019 and the Companies (Amendment) Bill, 2020, the changes

have yet to be notified. The exact nature and scope of the amendment will be discussed presently.

Section 135(5) as it stands currently, till the amendment is notified and the bill is passed, is

extracted hereunder:

“The Board of every company referred to in sub-section (1), shall ensure that the

company spends, in every financial year, at least two per cent. of the average net

profits of the company made during the three immediately preceding financial

years, in pursuance of its Corporate Social Responsibility Policy: Provided that the

company shall give preference to the local area and areas around it where it

operates, for spending the amount earmarked for Corporate Social Responsibility

activities: Provided further that if the company fails to spend such amount, the

Board shall, in its report made under clause (o) of sub-section (3) of section 134,

specify the reasons for not spending the amount. Explanation - For the purposes of

this section ‘average net profit’ shall be calculated in accordance with the

provisions of section 198.”

A plain reading of the Section reveals that, despite the use of the word “shall”, which creates the

impression that the Section is mandatory, the only obligation it imposes is to ensure that the

specified amount is spent, or to disclose the reasons for the failure thereof. It is absolutely crucial

to note that it does not specify any sort of penalty for such failure, as long as reasons are provided.

While this appears counter-intuitive at first blush, a background examination of the intention of

the drafters leads one to the conclusion that the Section contemplates that in the event that a

company fails to meet its CSR obligations, forcing a mere disclosure of the same (as well as the

reasons therefor) is a sufficient penalty, as one would assume that the market would react badly to

such news.

This view is confirmed by a Report submitted by the High-Level Committee (to suggest measures

for improved monitoring of the implementation of CSR policies) dated 22.09.2015, which states

in para 4.4. of its Recommendations that:

61 Bruce Watson, the troubling evolution of corporate greenwashing, THE GUARDIAN, Aug. 20, 2016,

https://www.theguardian.com/sustainable-business/2016/aug/20/greenwashing-environmentalism-lies-companies

(May 16, 2020). 62 Dr. Sanjay Katait, Green washing in India an alarming issue: misleading and deceptive environmental claims in

advertising, 3 INT’L J. COM. & MGMT. RES. 91. 94-97 (2017); Greenwashing is an elusive CSR attempt, FINANCIAL

EXPRESS, Oct. 1, 2018, https://www.financialexpress.com/opinion/greenwashing-is-an-elusive-csr-attempt/1332364/

(May 16, 2020).

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http://www.theguardian.com/sustainable-business/2016/aug/20/greenwashing-environmentalism-lies-companies



http://www.financialexpress.com/opinion/greenwashing-is-an-elusive-csr-attempt/1332364/

http://www.financialexpress.com/opinion/greenwashing-is-an-elusive-csr-attempt/1332364/



“4.4. The Committee is, prima facie, of the view that the existing provisions of the

Act and Rules based on general principles of ‘Comply or Explain’ are for the time

being sufficient for ensuring compliance of the law. This view has also been taken

by the Parliamentary Standing Committee on Finance in its 21st Report”.63

Therefore, it is plainly obvious that the drafters of the legislation themselves rely entirely on the

assumption that investors will react negatively to a disclosure of non-compliance and consider this

to be an adequate method to compel companies to meet their CSR obligation.

This fact is extremely relevant to the current proposition, as while most jurisdictions are mulling

over the question of whether it is better to regulate through rules and regulations or allow market

forces to operate freely, the Indian regulators have decided to combine the two and regulate

through reliance on market forces. This also means that, as far as the Government is concerned,

the negative reaction of Indian investors to environmental non-compliance is a foregone

conclusion.

VI. Conclusions and Recommendations

The clear inference to be gleaned from the above analysis is that news of compliance results in a

rise in share price while news of non-compliance leads to lower share price of the given company.

Therefore, the hypothesis has been tested and has been affirmed as true by this article. The

affirmation of the hypothesis also suggests the following inferences:

Investors value the environmental compliance of companies when making investment

decisions, and do not do so only to the extent of the financial cost of such non-compliance.

The spread of clear and comprehensive information regarding the compliance levels of

various companies influences investment decisions.

The growth of ESG investment reflects an increased emphasis on sustainability as opposed

to short-sighted profitability. The growth of green-washing as a method of attracting

investment affirms this.

Investors are interested in practicing and promoting environmentally-conscious investing.

Companies are understanding this and in some cases are beginning to modify their business profile

to adhere to this change of sentiment. In fact, the only party that has not yet hopped aboard the

environmental investing train is the Government and its regulatory bodies. As a result, this paper

recommends the following:

Clarification and reclassification of ESG investment

It is absolutely crucial for the general public to be informed on what exactly ESG investing

is. As mentioned earlier, ESG investing is not Thematic Investing simpliciter, and it is

misguided for SEBI to classify it under the riskiest category of investment. The best remedy

to this conundrum is for SEBI to simply create a separate category for ESG investment and

rank its risk profile accordingly. This would result in clarity to the public as well as

streamline the process of ESG investment.

SEBI Regulations making ESG Ratings mandatory

The lack of SEBI regulations on the subject leaves a gaping hole that one would be hard-

pressed to solve. This should definitely be the first order of business in encouraging the

63 Report of the High-Level Committee (to suggest measures for improved monitoring of the implementation of

Corporate Social Responsibility policies), Ministry of Corporate Affairs, Sept. 22, 2015 at https://indiacorplaw.in/wp-

content/uploads/2015/10/HLC_report_05102015.pdf.

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rise of environmentally-conscious investing. Additionally, it would be a welcome step to

make it mandatory for companies which seek to source capital from the public to obtain an

ESG rating from a credible assessment agency. This system could function in a manner

similar to the current regime of mandatory credit ratings when floating IPOs, and ESG

ratings can be provided by ESG rating Agencies which would function exactly like Credit

Rating Agencies currently do. The ESG rating would require periodic renewal in order to

keep abreast with changes in environmental rules and compliances. Since the most

effective way to introduce these changes is through a notification/regulation, this is the

necessary first step and is long overdue already.

Mandating additional disclosures

As explained earlier, the current CSR regime only requires companies to disclose the

causes for their failure to comply with CSR obligations in the Annual Report under Section

134 (3) (o). Given that the larger investing public i.e. potential future investors are likely

to account for environmental compliance when making investment decisions, it is

important that they be informed of the same as well. A proposed amendment to the CSR

policy has been passed by Parliament and is pending notification in the Gazette, which

mandates that companies pay the deficit/shortfall amount of stipulated CSR expenditure

into a state-run fund, as well as proposing fines and imprisonment for the company and

errant officials, respectively. While this is a positive step, it still does not solve the basic

issue i.e. future investors will not be informed of the company's compliance with CSR

obligations. Since the current regulatory framework does not provide for this, it is

suggested that a provision to the effect that any non-compliance with CSR obligations

ought to be disclosed to the Stock Exchange which lists the company’s shares be introduced

in addition to the company’s existing disclosure obligations.

Thus, the bottom line is quite simply that investors care about the environmental impact of their

investment decisions and are enabled in decision-making by the dissemination of information

regarding compliance levels. Keeping this in mind, it is not an overstatement to say that the Indian

(and global) economy stands on a knife edge. Large-scale commercial production is undoubtedly

the leading cause of environmental degradation. Miraculously, without government intervention

of any sort, there has arisen a global movement among investors themselves to persuade companies

to switch to fewer damaging methods of doing business. What we are witnessing flies in the face

of conventional market theory, which would presume that investors would care about wealth and

wealth alone, leaving questions of sustainability to governments and isolated activists. The fact

that this movement is spearheaded by investors themselves is an incredible opportunity to nurture

it and watch it bloom on a global level, as investors and governments now have their interests

aligned. The active involvement of the government is all that is necessary for this movement to

take root and revolutionize reckless business practice that would, if left unchecked, encourage us

to review our priorities as we are forced to choose between wealth creation and a habitable planet.

167



Animal Rights in India: A Mirage of Law?

Kushal Choudhary & Ayushi Sinha1

Abstract

This paper assails the validity of the Prevention of Cruelty to Animals Act, 1960, which is

the premiere legislation on protection of the interests of animals in the country and

purports to protect their interests vis-a-vis the interests of the human beings, while at the

same time, taking into account certain necessities, exempts certain acts from the scope of

the legislation regardless the nature of the act involved. This legislation is repugnant to its

own objects and principles as also being ultra-vires the Constitution in the light of the

ruling of the Hon’ble Apex court in AWBI v. A. Nagaraja. The rhetoric of this legislation

seems to be undermining its own objectives which on its own, brings to light the

dichotomous nature of the legislation. It is nothing but a remnant of the Victorian

ideologies that have been blatantly paraphrased to purport at their surface benevolence,

while actually being malignant underneath.


I. Introduction: The illusion of Protection of Animals in India

The Prevention of Cruelty to Animals Act2 was enacted by the legislature with the

objective of protecting the rights of animals in the wake of the modern human society.

This legislation purportedly provided adequate safeguards to the animals so as to protect

them from harm, unreasonable pain or suffering and torture at the hands of human beings,

unless such acts fell into the necessities as defined categorically in the act itself. This,

however, proved to be nothing more than a dead letter of law and could not stand the test

of time owing to the diminutive punishments that it was armed with, which ultimately

rendered the legislation otiose and the objective that it sought to achieve,

unaccomplished. It also resulted the law falling, for the most part, into desuetude, thus,

leading to a dearth of judicial precedents at the same time. In order to solidify the stand

taken as well as to understand, in depth, the misgivings that this enactment presents, we

have to categorically examine various provisions of the enactment. These provisions,

along with their individual critique, have been reproduced infra.

The legislation is primarily focused around Section 11, which has to be viewed in tandem

with Section 9 (a)3as these two provisions are more interdependent than the rest. The

major problem presents itself from the bare perusal of the provisions themselves, i.e.,

Clause (a) of Section 9 lays down that it is the responsibility of the constituted board to

make sure that the laws related to Section 11 specifically, and this Act in general, stay

up to date and for the same, it has to constantly keep making recommendations to the

appropriate government. This however, is a dead letter in law. As to why this has been

iterated becomes clear as we peruse the substantive part of section 11(1)4 which lays

down the ‘considerable’ punishments of Rupees Ten to Rupees Fifty on first conviction

and Rupees Twenty-Five to Rupees Hundred. Moreover, to put a cherry on top of the

1 Kushal Choudhary & Ayushi Sinha, Amity Law School, Guru Gobind Singh Indraprastha University, New

Delhi. 2 The Prevention of Cruelty to Animals Act, 1960, 59/1960. 3 Id., Section 9. 4 Id., Section 11(1).

168



cake, the second conviction will only be considered, with the provided higher degree,

when the subsequent offence is committed within 3 years from the commission of the

first offence. Granted that the provision in case of second conviction also provides for

imprisonment of 3 months, but even so, this limb of argument in favour of the provision

falls flat on the basis of the following two assertions:

a. That the Supreme Court has equated the right to life of animals with Article 215 of

the Constitution, in the light of which it becomes crystal clear that it is lacking

severely in proportionality with regards to the gravity of the offence committed and

the punishment provided. The offence committed either takes away the life of the

animal and if not anything else, their dignity and feeling of intrinsic worth is

tarnished. Whatever the case may be, it is violative of the right to life of the animals,

however the ‘substantive’ punishment provided for the offence brings to light the

perversity of the lawmakers in framing laws for those who cannot speak up for

themselves. The law was introduced in 1960, the amount of fine provided herein

could have acted somewhat as a deterrent then, but such a law has failed to stand the

test of time. Even the authorities charged with the responsibility of keeping such a

law up to date have miserably failed to do so knowing that the affected parties

themselves cannot advocate for their own rights.

b. Another major shortcoming of the argument in favour of this provision comes to light

when we direct our attention towards the proviso to sub-section 2 of section 11.6 This

sub-section lays down the law for such owners who treat the animals under their care

with cruelty, if such a person were to be guilty within the ambit of Section 11(1),7

then, according to the proviso such person has to be given the option to pay the fine

instead of going to prison. Even common-sense dictates at this point that the more

likely scenario would be the payment of 25 to 100 rupees in lieu of avoiding

imprisonment. This is highly violative of the animal’s rights regardless of which

theory of punishment we may use to interpret it. It does not deter the perpetrator, nor

does it reform them, therefore it is not reformative either. It neither inculcates the

sentiment of retribution nor does it encourage prevention. There is no theory of

punishment that this seems to fit in, which only further reinforces the belief of these

provisions being perverse and malignant.

Even when we take into account Section 128 of the Act which criminalises the activities

such as Phooka & Doom Dev, the punishment only grows to a fine of rupees one

thousand or an imprisonment of 2 years. These punishments are, even though, much

greater than the ones provided in the previous provision, however, still grossly

inadequate by and large. The relative analysis of such a law has to be done not in the

light of its own provisions but in the light of the principles of justice and the constitutional

mandate. A mandate which anyway requires as a fundamental duty vide Article 51A (g)

respect for all living beings. When we juxtapose such a provision with laws made for

humans or with the gravity of the acts themselves, it is not difficult to understand why

one would classify them as being namesake protections.

5 Indian Constitution, Article. 21. 6 The Prevention of Cruelty to Animals Act, 1960, Section 11 (2). 7 Id., Section 11. 8 Id., Section 12

169



The extent of abhorrence of such ineffective and diminutive punishments is then further

coupled with an inactive judiciary to safeguard them even in the state that they do exist,

and thereby increases the ineffectiveness manifold. Let us consider at this juncture the

stand taken by the judiciary on various instances of animal abuse to further bolster the

assertion of prevalence of a general bias against the rights of animals in the society at

large.

In Goushala Pashupalan Bahu v. State of Maharashtra,9a FIR was lodged for transporting

18 cattle in a cruel manner by stuffing them in a cramped space. This resulted in an

apparent violation of Rule 56 (c) of the Transport of Animal Rules,10 which allows only

six animals to be transported in a single vehicle so that the animals being transported

have sufficient room while in transit. The primary issue that arose in the present lis was

of custody of the cattle. At the first instance, the police handed over the custody of such

cattle to the Petitioner, which was a registered trust qualified to be an animal shelter.

However, as the matter was thereafter placed under the discretion of the Magistrate, the

custody was transferred back to the Respondent, who had not yet provided any

documents to prove his ownership and was merely relying on his word as well as the fact

that the animals were found to be in his custody while being transported. The Magistrate

reasoned that unless the offence under the FIR was proven, the respondent should retain

the custody as per the PCA Act. The Bombay High Court, however, granted an ad–

interim stay on the Magistrate’s order thereby returning custody to the Petitioner during

the pendency of the lis. Even though this judgment of the Bombay High Court played a

major role in setting a precedent on the matter, the fact that cannot be ignored is the non-

application of mind by the Judicial Magistrate as well as his insensitivity towards the

situation. The Magistrate had the requisite power to grant Petitioner the right of custody

during pendency of the lis by the virtue of Section 35 of the PCA Act11 read with Rule 3

of the PCA Rules, 12 however, the Magistrate thought it better to let the alleged

perpetrator continue with the custody of the voiceless victims. The non-application of

judicial mind of the Magistrate is further aggravated by the fact that the Respondent had

no documents to even provide prima facie evidence of his ownership of the animal

victims. All that he had was word of mouth, and the Court, merely relying on the word

of an interested party, chose to rule against the interest of the animal victims. Even though

the position was reversed by the Bombay High Court, what remains is the lack of

9 Goushala Pashupalan Bahu v. State of Maharashtra, W.P. (C) 338/2018 (Bom. H.C.). 10 The Transport of Animal Rules, 1978. 11 (1) The State Government may, by general or special order, appoint infirmaries for the treatment and area of

animals in respect of which offences against this Act have been committed, and may authorize the detention

therein of any animal pending its production before a Magistrate.

(2) The Magistrate before whom a prosecution for an offence against this Act has been instituted may direct that

the animal concerned shall be treated and cared for in an infirmary, until it is fit to perform its usual work or is

otherwise fit for discharge, or that it shall be sent to a pinjrapole, or, if the veterinary office in charge of the area

in which the animal is found or such other veterinary office as may be authorized in this behalf by rules made

under this Act certifies that it is incurable or cannot be removed without cruelty, that it shall be destroyed.

The Prevention of Cruelty to Animals Act, 1960, §35. 12 When an animal has been seized under the provision of the Act or the rules made there under-

(a) the authority seizing the animal shall ensure health inspection, identification and making such animal, through

the jurisdictional veterinary officer deployed at Government Veterinary Hospital of the area and marking may be

done by ear tagging or by chipping or by any less irksome advance technology but marking by not branding, cold

branding other injurious marking shall be prohibited

(b) the magistrate may direct the animal to be housed at an infirmary, pinjrapole, SPCA, Animal Welfare

Organization or Gaushala during the pendency of the litigation.

The Prevention of Cruelty to Animals Rules, Rule 3.

170



sensitivity at the grass roots level of judiciary. The Courts of first instance are the ones

charged with the duty of providing a quick and effective remedy to the victims, however,

in the present scenario the lack of sensitivity and concern becomes quite apparent no

matter one may interpret the order of the Judicial Magistrate.

The extent of such negligence can very well be understood when we juxtapose the present

predicament of the animal victims with instances of Domestic Violence. In case of

Domestic Violence, the victim is tortured physically, mentally or economically, and is

vested with enforceable protection under the law as against such abuse. An interesting

remedy that the Domestic Violence Laws provides is of Right of Household, wherein the

Courts have the authority to even throw out the husband from the matrimonial property,

even though he might own it, and grant the right to live in such property exclusively to

the victim. The end that such a law seeks to achieve is protection of the victim from

further mistreatment at the hands of the alleged perpetrator during the pendency of the

lis as a precautionary measure. However, when a similar situation occurred herein, the

Court of first instance appeared to be least bothered about the possibility of further abuse

and thought it better to grant custody to a person who merely had his word as proof of

his ownership. It is not being argued herein that in a similar fashion to the domestic

violence laws the alleged perpetrator be thrown out of his property and the animals shall

have the right to stay in it, what is being argued herein is the principle associated to such

law, i.e., precaution on the basis of possibility of further abuse being inflicted on the

victim(s), shall be upheld regardless the species of the victim. Not only did the

interpretation provided by the Magistrate make room for the abuser to mistreat the victim

further but could have also led to infliction of aggravated harm on the animal victims.

The Court, of first instance herein, perhaps forgot that even though animals might not be

able to speak the same language as humans, but they still have a sense of dignity and

intrinsic worth which is required to be protected as per the mandate of the Constitution

itself. It has to be understood that animal cruelty does not limit itself to mere physical

harm. The torment, the torture and the fear inflicted on the victim, causes immeasurable

psychological distress which is also covered within the ambit of animal cruelty as the

animals may not be able to convey through words, their agony, but they are also sentient

towards trauma. Another assertion which is pertinent to be noted, herein, is that

overloading of animals is a common site on Indian roads; however, it is seldom noticed

or reported. This shows the insensitivity of human populace, in general, towards animals.

It is mind boggling how such acts of apparent and unabashed cruelty do not prick the

conscience of so many who witness it daily. We claim to be the Apex beings on this

planet; it is high time that we start acting that way.

Another major shortcoming of the said Act presents itself in the very next provision, i.e.,

Section 13.13 Herein it becomes pertinent to note that it deals with not killing or taking

the life of an animal but with its ‘destruction’. This is problematic primarily because the

use of the word ‘destruction’ itself is Orwellian in nature. To put it simply, the actual act

itself is undermined in gravity due to the word used for the same. Destruction is

something which is not normally used when referring to taking of a life, here however,

it seems that the lawmakers deemed it better as opposed to using the actual words like

‘killing’ or “taking away their life”. This provision specifically deals with taking the life

of such animals who, due to the cruelty of their masters are in such a condition that it

would be better to kill them rather than letting them live in agony. The use of a lesser

13 The Prevention of Cruelty to Animals Act, 1960, § 13.

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term, i.e., ‘destruction’ also goes on to undermine the gravity of the offence committed

by the perpetrator. The animal is driven by his ‘master’ to a point where death is the

lesser evil than life itself, but when we say that such an animal is then destroyed, we take

away the substantive meaning from the offence committed by the wrongdoer. The

perverseness of the legislative rhetoric, however, does not end on merely having made

the provision Orwellian. In the provision itself the proviso states that unless the owner of

such animal gives his assent to such destruction, it shall not be ordered. Granted, this is

overridden by the prescription of a veterinarian, but even so, the power still lies to some

extent in the hands of the perpetrator himself even when the Court deems it better that

the animal be put out of his misery. Axiomatically, this too goes against every theory of

punishment of crimes. The perpetrator is still left in control of the fate of the victim even

when the matter is before the adjudicating authority for the same person having tortured

the victim in the first place. This is sadistic in its own right to say the least.

Let us at this juncture turn our attention towards Section 17(2) (e) & (f).14 Section 1715

primarily deals with experimentation on animals, wherein the former provides for

unequal treatment of animals on the basis of their size whereas the latter provides for not

experimenting ‘preferably’ for merely the purpose of acquiring manual skill. These by

themselves open up a Pandora’s box of misgivings about the intentions of the legislature.

Even though it is easier to experiment upon smaller animals, the same has not been listed

as the reason for the same, in fact, no reasoning whatsoever has been provided. It seems

that even amongst animals, human beings do not seem to be affording equality.

Addressing the concerns raised by the latter clause of the sub section, it is ‘preferred’ by

the legislature that the persons conducting such experiments should not do it merely for

the purpose of acquiring manual skill, which basically means that it is alright to do it, the

law may just not ‘prefer’ it. It may be frowned upon, yes, but not punishable in isolation.

Directing our attention towards the substantive part of the same we find that even if such

acts are punished, the offenders will have to pay a ‘substantive’ sum of Rupees 200. This

provision does not even warrant further analysis as doing so would probably amount to

putting more effort in interpretation than the framers of this provision did in its framing.

Moving on, we stumble upon Section 2416 of the Act, which gives exclusive power to

the police officer or an officer authorised for this purpose specifically to make a

complaint to the Court if they find an animal being subjected to unnecessary pain or

suffering in the process of being trained for exhibition or performances. This might look

like a benevolent provision, but on the bare perusal it comes to light that the powers are

restricted to certain specific authorities and are not vested in any other person who might

come across such an offence being committed. Even the Courts have noticed in several

cases, instances where the authorities themselves chose to turn a blind eye out of their

own volition to the commission of such an offence. In such a scenario, when the power

to complaint itself has been confined to such authorities, the rights of the animals are

bound to be violated. The Apex Court, in the Jalikattu Judgment, at one point asserted

that “when collection yards were not present or not used, injured, exhausted bulls were

tormented by spectators as they exited. Parallel Jallikattu events happened at each venue

14 “(e) that experiments on larger animals are avoided when it is possible to achieve the same results by

experiments upon small laboratory animals like guinea-pigs, rabbits, frogs and rats;

(f) that, as far as possible, experiments are not performed merely for the purpose of acquiring manual skill;” Id.,

Section17. 15 Id., Section 17. 16 Id., Section 24.

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as the aggressive crowds agitated the bulls exiting the arena by shouting at them, beating

them and jumping on them. Many people, including police officials, beat exhausted bulls

with sticks and jumped in front of the bulls in an effort to frighten them.”17 This confirms

that the police officials themselves are part of the crowd that exploits and not among

those who protect. In fact, this conduct has been called out by the Court itself by

observing that “We are sorry to note, in spite of the various directions issued by this

Court, in the conduct of Jallikattu, bullock cart race, etc., the regulatory provisions of the

TNRJ Act and the restrictions in the State of Maharashtra, the situation is the same and

no action is being taken by the District Collectors, police officials and others, who are

in-charge to control the same, to see that those directions are properly and effectively

complied with and the animals are not being subjected to torture and cruelty. Being dumb

and helpless, they suffer in silence”. 18 It has to be understood that the police

officials/appointed authorities are also a part of the same society that propagates

exploitation of such animals on grounds like religion and tradition, therefore, confining

the power exclusively to such officials limits severely the efficiency and effectiveness of

the law thereby diluting its intended effect and rendering it otiose.

II. ‘Bali’: A Misplaced Legacy of Religion?

Section 2819 of the Act seems to be the most problematic out of all the provisions in the

Act. On a bare perusal itself section 28 establishes its malicious nature by not extending

the protection of law to such animals which are offered as a ‘sacrifice’ in religious

practices. This in itself defeats the purpose of the legislation wherein a basic rule of law,

i.e. use of common sense is thrown out of the window. In Ashok Kumar Gupta20 the Court

very fairly observed that common sense has always served in the Court’s ceaseless

striving as a voice of reason to maintain the blend of change and continuity of order

which are the sine qua non for stability in the process of change in a parliamentary

democracy. The Court ruled that it is not bound to accept an interpretation which retards

the progress or impedes social integration. The legislation on the face of it seeks to

destroy instances of cruelty towards the animals. Any instances that cause pain and

suffering to the animals are sought to be penalised by such enactment, however, the law

provides a loophole within the confines of the legislation itself. India is a country with

several religions, therefore, there is no shortage of arbitrary customs, traditions and

religious practices that requires slaughtering of animals. Yes, the term used herein is not

sacrifice but slaughter, and that ought to be the case as well. Sacrifice means to offer

something of value to save another or for the benefit of another.21 Even though the word

‘sacrifice’ also includes within its cognate meanings the act of killing offered to gods,

however, it still associates with it a positive meaning, that is why the same word is used

for soldiers martyred at the battlefield. ‘Slaughter’, on the other hand, connotes

something negative, which is precisely what the legislation ought to convey. The very

fact that the positive term is being used to reproduce the bare provision encourages the

brutal act as well as points towards the inherent bias of the lawmakers, and their

willingness to undermine the real meaning of what actually transpires under the garb of

such a provision.

17 Animal Welfare Board of India v. A. Nagaraja, (2014) 7 SCC 547. 18 Id. 19 The Prevention of Cruelty to Animals, 1960, Section 28. 20 Ashok Kumar Gupta v. State of UP, (1997) 5 SCC 201. 21 Cambridge Dictionary, (10th ed. 2014).

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26 Id.


If the right of an animal to live is also covered within the ambit of Article 21,22 as

interpreted by the Hon’ble Supreme Court,23 then, one fails to understand how can a

religious mandate then go on to override the grundnorm itself. Is this not giving religion

power over law merely because it does not concern humans? This scenario can be easily

juxtaposed with the Practice of Sati in the Indian society. Even in the Victorian Era, a

custom as brutal as Sati was recognised as being arbitrary and unnecessarily painful and

was, thus, abolished, but when the fate of animals is similarly placed, it suddenly

becomes alright to overlook such occurrences. Same as sati, someone is sacrificed at the

altar due to the unreasonable beliefs of certain persons, but it is deemed to be ‘okay’

merely because human lives are not at stake altogether and in fact, it provides a sense of

satisfaction to the human beings, who, having slaughtered the animal, feel at ease

believing that it will bring them good luck of some kind. In this era of progress, the Indian

lawmakers seem to be regressing instead, because not moving with the world also

amounts to being left behind and, thus, passively regressing. Animal rights are put at the

bottom of the priority list, as we humans instinctively are not sensitised towards the

animals in the same way as we are towards our own species. That is exactly what is the

origin of speciesism. It becomes pertinent to assert herein the observations of the Hon’ble

Court itself to shed some more light on the matter, “Experimenting on animals and eating

their flesh are stated to be two major forms of speciesism in our society. Over and above,

the legislature, by virtue of Section 28, has favoured killing of animals in a manner

required by the religion of any community. Oxford English Dictionary defines the term

as the assumption of human superiority over other creatures, leading to the exploitation

of animals. Speciesism is also described as the widespread discrimination that is practised

by man against the other species, that is, a prejudice or attitude of bias towards the interest

of members of one's own species and against those of members of other species.

Speciesism as a concept used to be compared with racism and sexism on the ground that

all those refer to discrimination that tend to promote or encourage domination and

exploitation of members of one group by another...”24. This assertion of the judiciary,

however, changes soon enough when it iterated in the later part of the judgment that,

“The legislature through Section 28 also saved the manner of killing of animals in the

manner prescribed by religions, those are, in our view, reasonable restrictions on the

rights enjoyed by the animals under Section 3 read with Section 11(1). Evidently, those

restrictions are the direct inevitable consequences or the effects which could be said to

have been in the contemplation of the legislature for human benefit, since they are

unavoidable.”25 At this point, one fails to see reason in the self-contradictory assertions

of the judiciary on the matter, wherein, on one hand it recognises Sections 17 and 28 as

means of exploitation of the animals, on the other hand, it calls such instances

unavoidable and necessary. The judiciary has perhaps forgotten in this particular instance

that religion is not the driving force behind the moving cogs of our great democracy; it

is the Constitution, of which the judiciary is supposed to be the guardian. But when the

judiciary passes such contradictory statements, which not only contradict one another but

the essence of the constitution as well as the impugned legislation itself, one cannot help

but feel the influence of religion infecting the roots of our upstanding judicial system.

The position is made even worse when the judiciary itself acknowledged that section 28

propagates killing in a manner required by the religion of any community,26 however,

22 Constitution of India, Article 21. 23 Animal Welfare Board of India v. A. Nagaraja, (2014) 7 SCC 547. 24 Id., 9. 25 Id.

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failed to make a direction stating it to be against the right to life of animals. This is

abhorrence of justice at the altar of law to say the least.

Section 28 also makes the interpretation of the act in the light of the AWBI judgment27

somewhat paradoxical. The Hon’ble Supreme Court in its ruling specifically mentioned

that the animals rights against cruelty emanate from the same Article 21 which ensures

right to life for humans, the same becomes problematic and in fact, paradoxical when we

consider the fact that herein the animal, which is sacrificed, is not one on the brink of

death or one which has to be killed due to certain disease lingering inside them, rather, it

is probably a healthy animal which would otherwise had led a considerable life span.

This is a scenario wherein the animals are slaughtered merely because a religion

commands it, and without any application of mind the same has been allowed by both

the legislature and the judiciary. There is no procedure established by law that is followed

in a religious sacrifice and the same is only governed and dictated as per the religious

scripture to which the human executor prescribes. This is paradoxical because it violates

the very right from which it emanates, it runs parallel to it and never intersects it.

However, as we all know, two parallel lines have to emanate from different points to

ensure that they run parallel which means that the point of origin cannot be the same

unless the lines originated from the same point and then bent as an afterthought to run

parallel to each other. Herein, the Court’s interpretation also seems to be an afterthought

only, trying to bend two parallel lines in such a way as to make their point of origin the

same. That however, is not how law is supposed to be working.

This section has been aforementioned to be the most problematic of all the provisions in

the legislation and was, in a similar fashion, also extensively critiqued in the case of

Ramesh Sharma v. State of Himachal Pradesh28 wherein three writ petitions were filed

before the Hon’ble High Court of Himachal Pradesh seeking relief against the religious

sacrificial practices involving animals. The petitions provided several details of the

gruesome acts that transpired under the garb of offering religious sacrifice, thereby

subjecting the animals to not only unnecessary pain and suffering, but also stripping them

of the purported protections of the PCA Act due to the religious nature of the practices.

As the petitions iterated at several junctions, “The animals are beaten up mercilessly and

dragged up to mountain slopes to meet their death… the goats, sheep and rams are held

by four people and then the head is attempted to be cut off by one other person, which is

not always successful in the first attempt as there is no check on the sharpness of the

weapon/equipment being used for the sacrifice which may be blunt. At times,

inexperienced people try and participate in the ritual’ killing and it is abominable to see

that sometimes it may take up to 15 blows to kill the sacrificial animal that keeps

struggling in a brutally injured and bleeding condition.”29 The series of horrific and

barbaric incidents, categorically listed in the petition are enough to strike at the

conscience of any person, except for those blinded by religion. Perhaps, that is why the

domain of law is supposed to be completely separate from the domain of religion so as

to take away the power of religion to have any undue influence on the framing of laws,

otherwise, the society will never be able to progress and break away from the shackles

of the primordial practices and move towards progress and equality. The incidents listed

in the petitions filed, that takes place in Himachal Pradesh every year draped as

27 Id. 28 Ramesh Sharma v. State of Himachal Pradesh, CWP 9257/2011 (Himachal Pradesh HC). 29 Id., Para 11.

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necessarily required by religion raise several questions on the competence of law as well

as its effectiveness vis-a-vis religion. The court in this reformist judgment enunciated

that even though Articles 25 and 26 of the Constitution30 and Sections 11 and 28 of the

PCA Act, provide the freedom to participate in any religious sacrificial practices, the

same cannot be read in isolation. It has to be read in tandem with the Fundamental Duty

that the same grundnorm imposes on its subjects under Articles 51–A (g), Article 48 and

48-A.31 The court further propounded that safeguards provided against religious sacrifice

of animals are qualified and limited only to the essential and integral practices mandated

by religions, beyond which such protection shall not extend. One might then ask, what is

an essential and integral practice? It is simply a practice which is not the centrepiece of

the religion itself, something which does not meddle with the character of such religion.

It has to be understood that such an ambit excludes practices to which the primary sources

of religion provide a benevolent alternative. The ambit also excludes the unreasonably

gruesome practices allowed by the secondary sources of such religions, which are

scientifically disproved or apparently absurd. The religious practice of animal sacrifice

might have held great importance in the olden days but in a progressive society, such

remnants of regression cannot be allowed to hold the society back and chain it to the

same anchors that pulled the societies of the past into waters of chaos, and drowned them.

It has to be understood that the removal of animal cruelty, even if it forms part of any

religious practice, will not disturb the character of such religion, but it will save the

conscience of the society. Hence, there seems to be no reason for continuation of such

practices except for the stubbornness of the propagators of such religions as well as the

obliviousness of the Lawmakers who fail to abolish them.

The court relied on the dicta in N. Adithayan v. Travancore Devaswom Board wherein

the Apex court very fairly observed that “…custom or usage, even if proved to have

existed in pre-Constitutional period, cannot be accepted as a source of law, if such custom

violates human rights, human dignity, concept of social equality and the specific mandate

of the Constitution and law made by the parliament. The vision of the founding fathers

of the Constitution was to liberate society from blind adherence to traditional

superstitious beliefs sans reason or rational basis. The animal sacrifice cannot be treated

as fundamental to follow a religious belief and practice…”32 The court further went on

to emphasise that barbaric killing of animals on the ground of superstitions cannot be

equated with the practice of consuming non-vegetarian food items, as the former is not

based on scientific analysis and thereafter deemed necessary for survival of the society,

thereby forming a necessity exempting such practices from the ambit of the PCA Act,

like the latter. The doctrine of ‘parens patriae’ was also invoked by the Court in order to

call out the state for not having protected the animals from their misery, even though the

Constitution charged them with a responsibility towards the same. Therefore, a complete

ban was imposed on the religious sacrificial practices involving animals in the state of

Himachal Pradesh by the Hon’ble Court. This judgment was a giant step in the right

direction towards the protection of animals as it took, one of the very few, proactive steps

30 India Const., art. 25 & 26. 31 “(g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have

compassion for living creatures;” Id., art. 51-A; “Organisation of agriculture and animal husbandry The State shall

endeavour to organise agriculture and animal husbandry on modern and scientific lines and shall, in particular,

take steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other

milch and draught cattle.” Id., art. 48; “Protection and improvement of environment and safeguarding of forests

and wild life The State shall endeavour to protect and improve the environment and to safeguard the forests and

wild life of the country.” Id., art. 48-A. 32 N. Adithayan v. Travancore Devaswom Board, (2002) 8 SCC 106.

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towards protection of animals against unreasonable practices and put their misery at par

with that of humans. However, a concern which is inherently raised by this dictum is that

of the jurisdiction that it affects, which is limited in nature to only the state of Himachal

Pradesh and not the whole country.

The bigger picture, therefore, still seems to have remained in its brutish and unreasonable

form in the rest of the country where animal sacrifice is still rampant but not punishable.

There is also a glaring lack of awareness with regards to animal protection laws by and

large, as well as a lack of sensitisation towards animal suffering. More than such

unawareness, however, the lack of judicial willingness to accept such crimes as ‘crimes’

also contributes significantly to the size and gravity of the problem. As has been fairly

put by the Himachal Pradesh High Court, “Sacrifice causes immense pain and suffering

to the innocent animals. The innocent animals cannot be permitted to be sacrificed to

appease the god/deity in a barbaric manner. Compassion is the basic tenet in all religions.

The practice of animal sacrifice is a social evil and is required to be curbed.”33 This view

taken by the Hon’ble Himachal Pradesh High Court seems to somewhat resemble the

stand of the Hon’ble Apex Court in the Jalikattu Judgment, however, a stark contrast

presents recognisable when we realise that the former is the grain while the latter (in

respect of this provision) is the chaff. The Hon’ble Apex Court completely failed to even

comment upon the unreasonableness of the provision even while it had ample

opportunity to do the same, in light of the fact that the whole matter in issue was centred

around an unreasonable tradition, purported to have had the seal of religion. The Apex

Court, it seems, actively refrained from commenting critically upon this provision and in

so doing, limited severely the scope of its adjudication. Even, though the state of

Himachal Pradesh has gone ahead and to a great degree prohibited sacrificing animals

under religious pretence, it seems, there is still a long way to go before the Apex Court

sides with this dictum.

Perhaps much like any other reform in the country, this too shall take a considerable

amount of time as what it needs is ‘reason’ and “level headedness”, things which are

often least prioritised by people at large when their religious sentiments are questioned.

III. Conclusion

In the light of the aforesaid assertions presented by both the legislature as well as the

judiciary, one cannot seem to feel anything but helpless, as both the organs purport to

support the animal rights movement merely by words but not by actions. Those words

are also not the ones that matter, and the ones which do matter, in the legislation as well

as the judicial pronouncements, the organs again fail to show a scintilla of support. They

present contradictory statements which only goes on to show the perversity that creeps

in when framing and upholding laws for creatures that are helpless to present their own

claims. The premiere legislation itself, i.e. The Prevention of Cruelty to Animals Act,

1960 fails to provide adequate safeguards to protect the interests of animals and brings

to light the unwillingness of the Lawmakers to actually protect and make enforceable,

such rights. The inclusion of provisions like Section 11 and 12 of the Act do seem to be

beneficial for the animal victims, but the effectiveness of such provisions falls apart on

account of the punishments they prescribe which grossly fail to deter the wrongdoers.

Section 13 then goes on to undermine the gravity of the act of cruelty itself, purportedly

33 Ramesh Sharma v. State of Himachal Pradesh, CWP 9257/2011 (Himachal Pradesh HC).

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made punishable by the Act. Furthermore, Section 17 brings to light the actual perversity

of the legislation as it merely “recommends” against the conducting of experiments on

animals without necessity and does not out rightly prohibit it. Section 24 thereafter

provides exclusive powers to certain authorities to even report certain cases of animal

cruelty, authorities which the judiciary itself recognises to be amongst, more often than

not, the exploiters and not the protectors. Even after all these misgivings, one might

expect some degree of reasonable regulation in the society apropos animal rights, but the

legislation falls apart in toto due to the existence of Section 28, which places religious

mandate at a pedestal higher than that of law, thereby excluding animal sacrifice under

the garb of religious necessity from the ambit of the legislation itself. The legislation is

therefore, contradictory to its own purported objective and exists merely as a mirage, a

rosy illusion with no real substance.

The legislation apropos the prevention of cruelty to animals has also, not evolved with

the times in the country, thus, bringing hardships to both, the mute helpless victims as

well as those who fight for them. With the judicial pronouncements being just as deficient

as the statute, there seems to be little to no scope for development. Further, given the

promulgations, the judicial interpretation has been more often than not impacted by

religious sentiment, traditions, beliefs which have adversely affected the interpretation

of such provisions. At other times, it is overdriven in awe of the defaulters’ personality

or celebrity status coerced by media trials. All such discretionary perspectives are

avoidable through well drafted, contemporary amendments in the legislations with well

laid down provisions and associated penal actions for ensuring enough deterrence,

thereby leaving less room for discretion. However, the society at large, particularly in

rural India, has traditionally only been conscious of any act of violence or cruelty towards

animals due to the practiced religions in India teaching non-violence and their general

compassionate outlook. In urban India, while growing education has brought about

considerable compassion for animals, there is a large section for whom there is some

deterrence by way of watchful eyes of active organisations and bodies, looking to

preserve animal rights and prosecuting the major defaulters. Added to it is the possible

scourge of the social media for acts of negligence and violence, which keeps some check

on the society. However, a similar level of commitment is required from both the

judiciary and legislature first, and then the media and the aware citizens, which can only

be achieved by strengthening, through amendments, the existing provisions. The

legislation needs to add more teeth to its provisions to keep in tandem with growing

compassion and awareness in the modern society. All living creatures have inherent

dignity and a right to live peacefully and the right to protect their well-being which

encompasses protection from beating, kicking, torture, etc. Human life, as we often

iterate, is more than mere animal existence. This statement itself shows our bias against

the lives of animals at large. We seem to forget that the animals also have a sense on

intrinsic worth and value. The PCA Act 1960 was aimed to ensure that the same is

preserved, however, the legislation falls on its own face owing to the provisions that are

defeated by their own substantiveness, or rather lack thereof. Penalties for violation of

provisions of the PCA Act are virtually non-existent due to the diminutive punishments

provided and this, by itself, defeats the purpose of law. It does not regulate anything, it

does not protect anything, it does not enforce anything. It is nothing more than a

namesake protection, provided to fend off the animal rights activists by merely rubbing

in their faces the existence of such laws, regardless of its actual substantiveness. Even

though the Court in A. Nagaraja directed the law to be made better, more substantive and

more stringent, no changes have yet been made in six years from the declaration of the

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judgment. Bills exists, so do recommendations, what does not exist is the will to change

for the better of those who make our lives better, without saying anything and just

enduring what we throw at them. They might not speak out loud, but the time is nigh that

we pay attention, and really listen this time.

179



Patentability of Military Weapons: A Concern for Security

Mukesh Kumar Mishra1

Abstract

This Paper mainly focuses on intellectual property rights (IPR) issues which are closely related

to defence and national security in the Indian context, for example, management of IPR during

defence R&D and technology development, protection of IPR of strategic military and other

IPR during acquisition of military equipment and technologies, and also counterfeiting and

piracy of legally owned intellectual property. The main use of patents as a system of control,

while common for more mundane technologies, would seem at first glance to conflict with the

regimes of secrecy that have traditionally been associated with military weapons. The purpose

of this article is to review some of the problems involving patent rights, technical information,

and other kinds of proprietary data, which have arisen in connection with United States

government contracting abroad, particularly under the Mutual Security Program. The paper

also stresses upon the need for resolving IP related issues and suggest certain changes in an

evolving IPR policy. India also worked upon changing certain laws related to IPR regime to

resolve the issues of a piracy and crack down on intellectual property theft. Which will be

going to strengthen the Indian intellectual property policies. This paper would also be

providing some effective measures which will curb the One-sided interpretation of the

invention. The invention be looked with positive aspect as well. In a series of example, the

invention had potential of making several useful outcomes for the public. The authors propose

an alternate method for making a public oriented process. In cases of such application, patent

shall be granted on merits and then compulsory licensing be done in favour of defence agencies

of the countries. This will remove all the impediments of the current system.

KEYWORDS: IPR laws, National security, dual use inventions, Defence R& D


I. Introduction

Intellectual Property Rights aim to provide protection to the intangible property. Whenever

someone comes up with any Intellectual Property, the Intellectual Property Laws protects such

intangible property. It provides protection for a limited period with exclusive rights to the

Intellectual Property Holder. It protects the economic rights of the Intellectual Property Holder

and after the exhaustion; such knowledge comes into the public domain. It becomes part of public

knowledge and the entire society is allowed to use experiment and improve such knowledge. Thus,

the prime objective of the Intellectual Property apart from protecting the economic interest of the

IP Holder is to benefit the public from such knowledge. But imagine a situation when such

protection is at all waived and neither the IP Holder nor the public is benefitted. This will involve

a situation where the entire concept of Intellectual Property Rights is inapplicable. One such

situation is the invention of the Military Weapons or its related technologies. In cases, if someone

invents some military weapons or any technology aiding to military weapons, these inventions are

not granted with patent protection. They are either granted partial protection or withheld by the

authority or refused to be granted the protection and rights citing secrecy orders. In this

circumstance neither the inventor is able to commercialize his invention, nor does the public get

the benefit of such an invention. It even impedes any technological development on the bases of

1 Mukesh Kumar Mishra - LL.M., National Law University, Jodhpur, Rajasthan.

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that knowledge. It even curbs the Right to Knowledge of the Inventor. Where the purpose of the

Intellectual Property Rights is to increase awareness and development of knowledge, it tends to

curb all such positive impact of the knowledge. It even has a drastic impact on the development of

the new technologies because the inventor will not be provided with any protection.

One important defence taken is that such inventions are not allowed to flourish because they have

the tendency to be detrimental to the security of the state. But to our surprise, there are no such

statutes of the world providing the guidelines so as to what constitutes the security of the state. It

is left absolutely to the Intellectual Property Authority and the Government to decide what can be

detrimental to the security of the country. Even the inventor is not informed about why such actions

have been taken against his invention. This is sheer arbitrariness which cannot find its place in

words two biggest democracies of the world- India and the United States of America. While

dealing with such patent applications, the authority only looks at the negative aspects of the

invention ignoring completely the positive impact the invention can have. This system is marred

with several shortcomings which have come out with time. Several inventions having the potential

for new technological development have been withheld just because it was detrimental to the

security of the state in the opinion of the authority, whereas the experience shows the otherwise.

The right to knowledge has been completely taken away. Another significant lacuna in this system

is the indefinite period to decide. There is no time limit for the authority to decide on such

application, they can withhold it for 10 years, 20 years, 50 years or even a century. In cases where

the application has been withheld, no compensation is provided to the inventor or even if the statute

provides for it, it’s a task not to be accomplished without the intervention of the court. This paper

discusses these issues in detail and brings about a possible solution.

II. Research Question:

Whether Patentability Of Military Weapon Is A Threat To National Security?

Whether There Is Proper Check Upon the Authority Citing Secrecy Orders To Such

Patents?

Whether the Inventor Is Deprived of His Rights Guaranteed Under Intellectual Property

Rights?

III. Research Objective

Intellectual Property Laws, among others, have two important notions: the public policy and

economic interest of the IP holder. The IP Statutes provide a comprehensive scheme to protect the

economic interest of the IP holder, but it is sometimes subject to acquisition or denial straightaway.

In this situation, the IP Laws take a completely different path. In these circumstances, the general

principles of the IP Laws do not apply and the applicant or IP Holder is met with several setbacks.

This is justified as essential for the security of the nation but at the same time, there are several

loopholes. The Patent provides for the exclusive right to the inventor. But when the invention

relates to military weapons or inventions of these categories, the state intervenes and doesn’t grant

such patents citing secrecy orders and security of the nation. This project aims to critically analyse

the provisions relating to patentability of military weapons. It aims to bring out whether the

patentability of the military weapons poses a threat to national security and the economy or it can

strengthen the security of the nation. It aims to bring out a clear picture of the rights of the inventor

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in such situations. It primarily focuses on the US Law and makes deliberation on Indian law with

few examples of different countries.

IV. Methodology

This research follows the Doctrinal Research Methodology. Under this research, statutes of various

countries have been compared. Efforts have been made to substantiate them with case laws. They

have been tested on the various theories of the subject matter. It brings out the shortcoming of the

statute and proposes a suggestion to overcome such shortcoming.

V. Position in America

Intellectual Property Law revolves around two important notions of Public Policy and

Technological Progress. Information about new invention allows inventors to build on prior art,

delineates property rights, and enables others to produce and sell the invention when intellectual

property expires. This has been the policy objective of the US Patent Act, 1970 which required

inventors filing for a patent to include a replicable specification of their invention so that “the

public may have its full benefits.”2 The United States of America has been a pioneer in these

practices of withholding the invention citing secrecy orders. The origin of the secrecy orders traces

back to II World War.3 During that period, America used this secrecy order to prevent the

development of any such invention which they didn’t feel like allowing.4Secrecy order allows US

defence agencies to control patent including those that are privately developed. US Invention

Secrecy policy finds its first place in October 1917, when USPTO was authorized to keep invention

secret, withhold grant of a patent if they are of the opinion that its “publication and disclosure”

might “endanger the successful prosecution of the war”. During the II world war, USPTO issued

nearly 10000 patent secrecy orders. It started in 1930, and took off in 1940 and official policy was

adopted in 1952 under Invention Secrecy Act, 1952. Under this USPTO is authorized to keep

patent considered to be detrimental to national security under deadlock. The inventor is not allowed

to further proceed with that invention, nor communicate with public on that or apply to any foreign

country for patenting. They have to submit everything to US defence agencies only.

The Federation of American Scientists is an agency that has played pioneer role in bringing about

the true picture and data for secrecy order. It was formed as “Federation of Atomic Scientists” in

1945 for nuclear disarmament. It subsequently changed to Federation of American Scientists with

a widened scope and including probe into chemical weapons as well. In 1980 it started to

successfully getting reports in secrecy order of the USPTO. In 2017, statistics data of the USPTO

published by Federation of American Scientists, there are around 5784 invention cached under

secrecy orders. Among the figures of the FAS, 2013- 2017, average of 25 old secrecy orders were

rescinded every year, while 117 new secrecy orders were being imposed. The FAS tried to probe

2 Daniel P. Gross, The Consequences of Invention Secrecy: Evidence from the USPTO Patent Secrecy Program in

World War II, Harvard Business School, Working Paper 19-090. 3

They denied patent to laser tracking system, a warhead method, an anti-radar and many such technologies: which

played an integral part of modern military warfare. In these cases, the economic losses of the inventors have been

beyond measures. Moreover, the public has been refrained having such knowledge. This is the prime concerns of the

research paper. 4 The U.S. Governments Secret Inventions: https://slate.com/technology/2018/05/the-thousands-of-secret-patents-

that-the-u-s-government-refuses-to-make-public.html.

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https://slate.com/technology/2018/05/the-thousands-of-secret-patents-that-the-u-s-government-refuses-to-make-public.html





into and gather more information about who takes the final call in secrecy orders, but the

information is so well protected that even the officials of USPTO don’t know the procedure of

secrecy orders.5The US Patent Act6, provides for the provision of “Secrecy of certain

Application”7. It provides that if an application for patent is deemed to be detrimental to national

security in view of the USPTO, it can be withheld with the authority.8It doesn’t provide for any

time frame. It does provide for “Compensation”9but that is a mammoth task. Further if you

violated any of the conditions imposed by the secrecy order, you are subject to punishments of

various kinds.10Further in USA laws,11 secrecy orders are generally identified as Type 1, 2 and

5. Id.

6. United States Code Title 35- Patent

7. Id, At Article 181-188.

835 U.S.C. 181 - Secrecy of certain inventions and withholding of patent.

“Whenever publication or disclosure by the publication of an application or by the grant of a patent on an invention

in which the Government has a property interest might, in the opinion of the head of the interested Government agency,

be detrimental to the national security, the Commissioner of Patents upon being so notified shall order that the

invention be kept secret and shall withhold the publication of an application or the grant of a patent therefore under

the conditions set forth hereinafter.”

9. 35 U.S.C. 183 - Right to compensation.

“An applicant, his successors, assigns, or legal representatives, whose patent is withheld as herein provided, shall have

the right, beginning at the date the applicant is notified that, except for such order, his application is otherwise in

condition for allowance, or February 1, 1952, whichever is later, and ending six years after a patent is issued thereon,

to apply to the head of any department or agency who caused the order to be issued for compensation for the damage

caused by the order of secrecy and/or for the use of the invention by the Government, resulting from his disclosure.

The right to compensation for use shall begin on the date of the first use of the invention by the Government. The head

of the department or agency is authorized, upon the presentation of a claim, to enter into an agreement with the

applicant, his successors, assigns, or legal representatives, in full settlement for the damage and/or use. This settlement

agreement shall be conclusive for all purposes notwithstanding any other provision of law to the contrary. If full

settlement of the claim cannot be affected, the head of the department or agency may award and pay to such applicant,

his successors, assigns, or legal representatives, a sum not exceeding 75 per centum of the sum which the head of the

department or agency considers just compensation for the damage and/or use. A claimant may bring suit against the

United States in the United States Court of Federal Claims or in the District Court of the United States for the district

in which such claimant is a resident for an amount which when added to the award shall constitute just compensation

for the damage and/or use of the invention by the Government. The owner of any patent issued upon an application

that was subject to a secrecy order issued pursuant to section 181, who did not apply for compensation as above

provided, shall have the right, after the date of issuance of such patent, to bring suit in the United States Court of

Federal Claims for just compensation for the damage caused by reason of the order of secrecy and/or use by the

Government of the invention resulting from his disclosure. The right to compensation for use shall begin on the date

of the first use of the invention by the Government. In a suit under the provisions of this section the United States may

avail itself of all defences it may plead in an action under section 1498 of title 28.”

10. 35 U.S.C. 186 – Penalty

“Whoever, during the period or periods of time an invention has been ordered to be kept secret and the grant of a

patent thereon withheld pursuant to section 181, shall, with knowledge of such order and without due authorization,

wilfully publish or disclose or authorize or cause to be published or disclosed the invention, or material information

with respect thereto, or whoever wilfully, in violation of the provisions of section 184, shall file or cause or authorize

to be filed in any foreign country an application for patent or for the registration of a utility model, industrial design,

or model in respect of any invention made in the United States, shall, upon conviction, be fined not more than $10,000

or imprisoned for not more than two years, or both.”

11. The Invention Secrecy Act of 1951, 35 U.S.C 181-188. 35 USC 181 reads in pertinent part:

"Whenever publication or disclosure by the grant of a patent on an invention in which the Government has a property

interest might in the opinion of the head of the interested Government agency, be detrimental to the national security,

the Commissioner upon being so notified shall order that the invention be kept secret and shall withhold the grant

of a patent therefore under the conditions set forth hereinafter.” Whenever publication or disclosure of an

invention by the granting of a patent, in which the Government does not have a property interest, might, in the opinion

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3 secret orders.12There are several examples which clearly reflect the short coming of the system

of secrecy orders. The case of Solar Panel, patent for solar panel was sought to be protected in

1971, the Army, Air Force, and NASA set aside such application citing secrecy order. They

thought it can military application, but the vase usage it had been in daily life had been ignored.

The next example shows how absurd the system can be; in 2000 the USPTO finally issued a patent

filed way back in 1936 related to cryptograph, used to manually code/decode messages. It has

become way outdated technology. In these cases, no boys talk of the right of the inventor, his

financial loss and the wait society had to make for getting such helpful technologies. After having

provisions of compensations, Desankarand Budimir had to file a civil suit13to get compensation

after creating anti-heat seeking missiles, which was thought detrimental to national security.

Ironically every country is using this technology these days including USA. Similar had happened

with JIN Green, who had multiple patents inventing technique for tracking stealth aircraft. He was

of the view that he will make some money out of it, but it was termed as trade secret. The

compensation procedure is so time consuming that he couldn’t get the economic benefit of his

invention ever.

Similarly, Robert Gold developed a breakthrough wireless communication that would help people

speak to one another with less interference and greater security. It was not acceptable to USPTO

and they slapped Gold with secrecy order in 2002. They went on to make it public 5 years after,

but it was too late at that time. He could not commercialize his idea. James Constant, applied for

patent in 1969 for Radar Technology, which would track shipping container, it was under secrecy

order for nearly 3 years. It was published in 1971; he sought damages from the government. The

court opined that his lack of business experience has resulted in financial loss and was not granted

any damages. The claim for compensation is granted only in cases if it can be proved that he was

restricted from proceeding further with his invention. But it is so arduous that even evidence

confirming the governmental restriction is itself a secret. Under American Law, the patentability

of military weapon is not allowed. It is considered the exclusive domain of the government

agencies. Such inventions being used solely for the purpose of the military use are not

patentable.14It is considered futile to accord patentable right only to government.15Although

inventions including non-military usage are patentable but these ordinarily fall under general

secrecy case of the patent act.16USPTO has also idea of withholding such inventions which can

have some detrimental impact over the economy of the county. Several lawmakers have argued

of the Commissioner (of Patents), be detrimental to the national security, he shall make the application for patent in

which such invention is disclosed available for inspection to the Atomic Energy Commission (now DOE), the

Secretary of Defence, and the chief officer of any other department or agency of the government designated by the

President as a defence agency of the United States.” "...If, in the opinion of the Atomic Energy Commission, the

Secretary of a Defence Department, or the chief officer of another department or agency so designated, the publication

or disclosure of the invention by the granting of a patent thereof would be detrimental to the national security, the

Atomic Energy Commission, the Secretary of a Défense Department, or such other chief officer shall notify the

Commissioner and the Commissioner shall order the invention be kept secret and shall withhold the grant of a patent

for such period as the national interest requires, and notify the applicant thereof.”

12. The Secrecy Order Program in the U.S. Patent & Trademark Office,

https://fas.org/sgp/othergov/invention/program.html.

13. 135 F.Supp.3d601 (2015).

14. 68 STAT. 973 (1954), 42 U.S.C. 2181 (A) (Supp. IV 1957).

15. V K GUPTA, India: IPR And National Security, 13 J. INTELLECT. PROP. RIGHTS 318, (2008).

1666 STAT. 805, 35 U.S.C. 181 (1952).

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that if some inventions have the potential to harm their economy, it shall be brought into the ambit

of the USPTO to declare it secret and prevent it from further proceeding.

VI. Position in India

Indian Statute does not provide for anything like military weapons. Under chapter VII of the

Patents Act, 1970, it discusses provisions related to “Secrecy of certain inventions.” Moreover, it

does provide for atomic energy. The inventions related to the Atomic Energy are not

patentable.17The Act further provides, under chapter VII that the Central Government will be

providing the controller with some class or list enumerating some information on which the

controller needs to act while dealing with atomic inventions.18It further provides that Indian

Residents cannot apply to any foreign country regarding any invention related to atomic

energy.19The Indian Government is even empowered to withhold any information related to such

inventions.20These provisions are so empowering the government that the adjudication of the

17. Section 4 of the Patents Act, 1970: Inventions relating to atomic energy not patentable

“No patent shall be granted in respect of an invention relating to atomic energy falling within sub- section (1) of

Section 20 of the Atomic Energy Act, 1962.”

Section 20 of the Atomic Energy Act, 1962: “As from the commencement of this Act, no patents shall be granted for

inventions which in the opinion of the Central Government are useful for or relate to the production, control, use or

disposal of atomic energy or the prospecting, mining, extraction, production, physical and chemical treatment,

fabrication, enrichment, canning or use of any prescribed substance or radioactive substance or the ensuring of safety

in atomic energy operations. Radioactive substance or radioactive material as defined under the Atomic Energy Act,

1962 means any substance or material which spontaneously emits radiation in excess of the levels prescribed by

notification by the Central Government.”

18. Section 35 of the Patents Act, 1970: Secrecy directions relating to inventions relevant for defence purposes.

“(1) Where, in respect of an application made before or after the commencement of this Act for a patent, it appears to

the Controller that the invention is one of a class notified to him by the Central Government as relevant for defence

purposes, or, where otherwise the invention appears to him to be so relevant, he may give directions for prohibiting

or restricting the publication of information with respect to the invention or the communication of such information

98 [***].

(2) Where the Controller gives any such directions as are referred to in sub-section (1), he shall give notice of the

application and of the directions to the Central Government, and the Central Government shall, upon receipt of such

notice, consider whether the publication of the invention would be prejudicial to the defence of India, and if upon such

consideration, it appears to it that the publication of the invention would not so prejudice, give notice to the Controller

to that effect, who shall thereupon revoke the directions and notify the applicant accordingly.

(3) Without prejudice to the provisions contained in sub-section (1), where the Central Government is of opinion that

an invention in respect of which the Controller has not given any directions under sub-section (1), is relevant for

defence purposes, it may at any time before 99 [grant of patent] notify the Controller to that effect, and thereupon the

provisions of that sub-section shall apply as if the invention where one of the class notified by the Central Government,

and accordingly the Controller shall give notice to the Central Government of the directions issued by him.”

19. Section 39 of the Patents Act, 1970: “Residents not to apply for patents outside India without prior

permission.

“(1) No person resident in India shall, except under the authority of a written permit granted by or on behalf of the

Controller, make or cause to be made any application outside India for the grant of a patent for an invention unless (a)

an application for a patent for the same invention has been made in India, not less than six weeks before the application

outside India; and (b) either no directions have been given under sub-section (1) of section 35 in relation to the

application in India, or all such directions have been revoked.

(2) The Controller shall not grant written permission to any person to make any application outside India without the

prior consent of the Central Government.

(3) This section shall not apply in relation to an invention for which an application for protection has first been filed

in a country outside India by a person resident outside India.”

20. Section 157A of the Patents Act, 1970: Protection of Security of India

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Controller and Government is final and cannot be questioned in any court.21 The science and

technology have continued to aid in growth of the state security, but under these philosophies, it

had hampered the growth of the science of technology.22Science and Technology have huge role

to play in national security. Armaments, aeronautics, and energetic chemical technology all these

aid in strengthening the national security. Under the secrecy order concept, the security of India

has discussed on 3 aspects related to fusible material, arms & ammunition, and at time of

emergency and war.23 Interestingly the Indian statute comes short when it is expected to

apprehend something. The Indian Statute doesn’t apprehend or something coming in near future.

Similar like other statute it completely ignores the prospects and rights of the Patent applicant and

his invention’s possible use in constructive way. In absence of such developed Research and

technology, India has not faced any such private invention, but it should be well prepared for any

such situations.

“ One interesting point of difference between Indian and US Laws is that Indian

Law doesn’t provide for compensation in such cases. This defeats the provisions of

IP Laws. Apart from securing the economic interest of the inventor, it even not

providing them with compensation in cases the invention is declared secret orders”.

Copying of advance military technology of the other country has become very rampant. There

haven several cases of complaints being made by US against china about violating IP rights of its

weapons and its inventors. The Russia and China have the image of not granting effective

protection to the Intellectual Property Rights. Classic example is of Russian produced AK-47, the

words most pirated and imitated weapon. It is estimated that the actual owner of it are suffering

nearly $400-$500 million each year. Russia has decided to make sure its IP Rights are protected

in entire globe. This huge the market is and it must be properly dealt with. There is need of better

IP Protection for the advanced military technologies.

VII. Conclusion and Suggestion

The authors do not oppose this aspect of refusing to grant IP protection for National Security.

National security is the prime concern of any country. But the lacunas of the system are to be

removed. The impact of the secrecy orders is twofold. At first, it hampers the commercialization

of the invention of the author, and at second, it prevents the follow-on invention. The inventor is

not allowed to work on his invention. There are several objections to this system which are as

follows:

The authorities are allowed to sit over the invention: there is no time frame provided for

the authority to adjudicate over the application. They can sit over it for nearly a century as

“Notwithstanding anything contain in this act, The Central Government shall -

(a) not disclose any information relating to any Patentable invention or any application relating to the grant of a patent

under this act, which it considers prejudicial to the interest of security of India;

(b) take action including the revocation of any patent which it considers necessary in the interest of security of India;

Provided that the Central Government shall, before taking any action under this clause, issues a notification in the

Official Gazette declaring its intention to take such action.”

21. Section 41 of the Patents Act, 1970: Finality of orders of Controller and Central Government “

All orders of the Controller giving directions as to secrecy as well as all orders of the Central Government under this

Chapter shall be final and shall not be called in question in any court on any ground whatsoever. Government. — All

orders of the Controller giving directions as to secrecy as well as all orders of the Central Government under this

Chapter shall be final and shall not be called in question in any court on any ground whatsoever.”

22. Supra note 14.

23. Id.

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seen in American examples.

There is no objective test for the determination of parameters of what may be detrimental

to national security: the government and authority decide as to what is detrimental to

national security. There is no objective test for it, which makes the entire process so

arbitrarily.

The lack of compensation provisions: in cases where the invention is withheld, the inventor

be provided with some compensation. This will encourage the inventions.

One sided interpretation of the inventions: the invention be looked with positive aspect as

well. In a series of example, the invention had potential of making several useful outcomes

for the public. This idea needs to be kept in mind while adjudicating any patent application.

The authors propose an alternate method for making a public oriented process. In cases of such

application, patent shall be granted on merits and then compulsory licensing be done in favour of

defence agencies of the countries. This will remove all the impediments of the current system. The

economic rights of the inventor will be secured and utility aspect of the invention can be explored.

This will also help in preventing illegal export import of the military weapons. Since, the patent

will be registered; the rights of the inventor and effective steps in cases of infringement will be

feasible.

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Myths Surrounding Menstruation: Breaking the Stereotypes

Bhumika Verma1

Abstract

Equality of Status and of Opportunity and to Promote among them all- these values are

enshrined in the Preamble of the Indian Constitution, but even after 70 years of Independence,

we still see unequal treatment of women, especially in Rural Areas. Women have to suffer a

lot in their life. On one hand, people personally want women of Indian society to get

empowered but on the other hand, they don’t want to get rid of their illogical and irrelevant

customs, faith, and belief that is doing nothing but only proving to be cancerous to the society.

Not only women need to be empowered when it comes to education, economic problems,

poverty, etc. but also it is necessary to get them out of the chain of myths and taboos in which

they are entangled from the origin of mankind. The current paper aims to discuss

menstruation-related myths prevalent in India, their impact on women’s lives, the relevance

of addressing these issues in primary care, and a brief description of various strategies to

combat them. Mostly women of rural areas do not have proper access to sanitary napkins or

tampons. It is not only the physical health of a woman that is affected by these practices;

mental health is also at stake. The recent Sabarimala judgement paved a path in changing the

mind-set. The paper also describes the condition of women in Nepal which is even worse than

in India.

KEYWORDS: Equality, Women, India, Menstruation, Indian Society.


I. Introduction

In a country like India, from the very start, the main issue which many people in the society faced

was of getting unequal treatment. In the history of India, there are many instances of people not

getting equal treatment as compared to others. They are denied equality in terms of living with

dignity in society, caste, creed, colour, gender, sex, etc. We witness people getting unequal

treatment in our day to day life. Debates, discussion, arguments about how to overcome with this

is now an everyday scenario. Whenever there comes up any serious core issue like dowry, female

infanticide, child marriage, sati, rape, denial of girl’s education, and many other evil practices

present in the society people always use the term called “equality”. As citizens of India, we have

always witnessed women getting unequal treatment as compared to men. They were always

considered inferior to men. All the above-mentioned evil practices largely affected women only in

some or the other way. Hence, reformers, activists, and the general people always tried to uplift

the women so that they can come to the mainstream of society. All the efforts in doing the same

came out to be successful but still, there are many things left which are needed to be work upon.

Our Constitution also talks about equality in Articles 14 and 15. Article 14 speaks about equality

before the law and equal treatment before the law2 and Article 15 talks about prohibition of

discrimination based on caste, colour, creed, sex, place of birth, etc.3 Hence, Indian laws are in the

favour of treating both the genders equal as mentioned in Article 15, the prohibition of

discrimination on the basis of sex, treating any of the genders unequally is unconstitutional.

1 Bhumika Verma - Fourth Year B.A. LL.B. (Hons.) - NMIMS, Kirit P. Mehta School of Law, Mumbai. 2 India Const. art. 14. 3 India Const. art. 15.

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Women empowerment, in general, is upgrading women's status and their quality of life and help

in providing them with the things/resources/amenities which they were previously denied. On the

one hand, people personally want women of Indian society to get empowered but on the other

hand, they do not want to get rid of their illogical and irrelevant customs, faiths, and beliefs that

are doing nothing but only proving to be cancerous to the society. Not only do women need to be

empowered when it comes to education, economic problems, poverty, etc. but also it is necessary

to get them out of the chain of myths and taboos in which they are entangled from the origin of

mankind. Moreover, all of this is killing women from inside and is hindering them to exercise their

rights and freedom properly. They are not even provided with basic human rights. These rights are

based on values like fairness, equality, respect, dignity, and independence. India is a country with

rich diversity where the different section of people practices different religions. They have

different cultures, beliefs, faith, and traditions. India is a country where religion and customs have

always overpowered people’s thinking and mind-set. Menstruation is something that every woman

experience across the world and it is very natural and hormonal. For such a natural thing also,

belief and custom play a very crucial role in acting as violence towards the women. People give

so much importance to culture and customs that they are forgetting that they need to change with

the dynamics and the contemporary needs of the society.

Menstruation is the natural part of the reproduction cycle wherein blood comes from the uterus

and exits through the vagina. It is a very natural process that occurs in girls usually when puberty

hits them. Despite being a natural process or phenomenon, it is always surrounded by illogical

myths and taboos for the girls and women in Indian society. In India, even in the era of the 21st

century, it is still a taboo to even talk about menstruation/periods openly. It usually comes in the

hush category of Indian society. Even if a girl starts talking about it, which is very natural, people

give disgusting looks, just by the name it. What the development is all about when you cannot talk

about a concept that is a natural phenomenon and problems related to the same. Many girls even

die because they have some menstrual problems. Yet, they never talk about it openly because they

consider it a taboo and die with that same problem. Why this taboo is not combated, because it is

doing nothing other than restricting the freedom of the women and taking their lives mercilessly.

It also plays a great role in social exclusion. It excludes many women and girls from society.

Hence, controlling and restricting their social life. This is taking their fundamental right i.e. right

to life defined under the Constitution of India. The first and foremost problem is that girls have

limited knowledge about it which is due to the taboo created in society. They are not allowed to

talk about it freely or question something about it. Also, it is not that someone imposed it on them.

They have a strong belief in all the myths related to menstruation. This habit of stereotyping

everything when it comes to women or something related to them in Indian society is pathetic.

This is more prevalent in rural areas where there is a lack of education among the women. Due to

not being educated enough they just do whatever they are told to do from their very birth. It is not

their fault; it is all about upbringing and what atmosphere is created in their home or the society.

In almost every religion, menstruation blood is considered impure but it is just a natural and healthy

body process. How can some natural body process be impure? They are also restricted from going

to many places. It does not have anything to do with periods, it is just curbing one’s right to

freedom in the name of custom and tradition.

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Women do not maintain personal hygiene during menstruation. The practices and habits which

they adopt during those times are very unhygienic which results in the death of these women.

Menstrual health is also affected by the environment and surroundings in which one lives. In many

parts of India, women and girls are not allowed to live in the same house in which their family is

living as they are considered impure. So, they live in some small huts that are located in a very

unhygienic environment and are even exempted from the necessities of living. All these practices

have their origin in the blind belief of people in illogical customs, rituals, and traditions.

Menstruation is a phenomenon unique to girls but it has always been attached to various myths

and superstitions. Another problem is of the affordability, the cost of the sanitary napkins and

tampons is high enough for poor people to not afford it. Further, the tax on it is also high. No

matter how much a person tries to maintain perfect hygiene but when he cannot afford, there is

nothing much that can be done. The government should start rethinking their taxation policies on

necessary and important goods.

II. Impact of Religion on Women in Menstrual Period

India is known for its diversity. People of India are highly influenced by culture, tradition, customs,

belief, faith, etc. Religion holds a massive place in the lives of the people. They are very sensitive

and static when it comes to their religion. The traditions and customs influence people to a great

extent because it is a part of their religion and society also. Different religions are known by

different customs and traditions. These customs and traditions are a thousand years, time

immemorial old. People not only make this part of their life but also make it their lifestyle. Some

of these customs and traditions are illogical and irrelevant at the same time in context to

contemporary times and human rights. In the present world, people want to change with the

dynamics of society but still, there is a large section of society that is reluctant in changing their

mind-set. These institutions are a great contributor in nurturing patriarchy and dominating by

putting restrictions on women.

When it comes down to women during their menstruation period, there is a huge baggage of all

the myths and superstitions derived from the culture and traditions of women. There are many

restrictions imposed on them and they are forced to seclusion without any reasonable, logical, and

relevant explanation to that. First of all, even the mention of the period is sin in Indian society.

People do not talk about it openly and are hesitant in sharing any views related to it. As they believe

or they are compelled to believe from the very childhood that these things cannot be discussed

openly. Moreover, girls are even hesitant in calling periods by the name of it. They conceal it by

using another term for it. I have heard many women and girls calling it by the name of happy

birthday, that time of the month, down, and many more in public places. Women at their periods

are not allowed to go to the temples or be part of any religious ceremony because they are

considered impure at that time. People fear that God will be angry by that. Some people give an

illogical explanation behind it such as menstruating women are so powerful, that their offering to

God drowns out the offerings of everyone else present in the room. It is curbing their right i.e.

Article 25, freedom of conscience and free profession, practice and propagation of religion granted

by the Constitution of India.4There is no logical explanation for that. Women are not allowed to

cook, go to the kitchen, touch pickle as it rots away, have sex with anyone, served in a different

utensil, cannot wash hair, cannot go near tulsi plant or have good food as all these things come

4 India Const. art. 25.

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under the ambit of myth and misconception that people have concerning menstruation. In some

areas, women are not even allowed to be in touch and converse with other people. They are not

allowed to be out of a particular room. In Judaism, it is believed that a woman is impure after her

menses until she has a ritualistic bath. In Islam, she is not allowed to touch the Quran nor go to the

mosque. In the Quran, 2:222 reads, “They ask you about menstruation. Say, ‘It is an impurity, so

keep away from women during it and do not approach them until they are cleansed; when they are

cleansed you may approach them as God has ordained. Even it explicitly says that she should avoid

all sexual activity and cannot approach anyone while on periods. In Assamese culture, on the onset

of menarche, she is kept in a confined room for 7 seven days only surviving on milk products,

sprouts, and fruits. Many girls did not know about menstruation until they reach menarche. So,

there is a desperate need of educating them and creating awareness about the same. Lack of

education leads to girls considering it as a disease or illness which even many people think of it in

that way. There are women, especially in rural areas who still use a piece of cloth during

menstruation but even in urban areas women who use sanitary napkins take the packet of the

napkin in a black wrap or are hesitant in taking them from the shopkeeper, especially male. All

these things create awkwardness in them about menstruation, their body, and themselves self

which leads to a lack of self-confidence. It creates a hurdle to the overall development of a woman.

III. Case Analysis of Sabrimala Judgement

The most recent and debatable issue that the whole nation witnessed is the prohibition of women

and girl’s entry aged 10-50 in Sabarimala Temple. Sabarimala is one of the most famous and

celebrated sites, located in the hill of Kerala in Southern India. It is a pilgrimage site that is devoted

to the Hindu God, Lord Ayyappa. It is not like other Hindu temples; it is not open all year-round.

It is opened for all the devotees from all religions. Lord Ayyappa is believed to be Hariharaputra,

born of the union of Lord Vishnu in the form of Mohini (Hari) and Lord of Shiva (Hara).

Manikandan, prince of the Pandalam dynasty rediscovered the temple in the 12th century. In this

temple, the reason behind prohibiting women aged between 10-50 is the menstruating age of

women. People consider them as impure and did not want them to enter the temple once she hits

the puberty age. The reason given behind the prohibition of women’s entry in the temple is that

firstly, Lord Ayyappa has always been a celibate. Secondly, the entry of women affects the sanctity

of the principles of Brahmachariyan. They have to carry an age proof and the women in the

restricted criteria can also enter the temple if she has removed her uterus with a medical certificate

as proof to it.

People around the world have different opinions related to this issue. The people who stood for

this ban argue that it is for preserving the ‘purity’. The reason people gave which most people of

Indian society believe that menstruating women are not allowed to enter places of worship. They

say that it is so because Lord Ayyappa is Naishtika Bramhachari. They contend that Sabarimala

has its own rules and they exercise their right of article 25(1) and 26(1) i.e. right to manage their

religious affairs granted by the Constitution of India. They argue that it is managed by trusts and

is a public place and every public place has its own rules. Hence, this temple also has its rules,

customs, and traditions which need to be followed and respected. Rule 3 (b) of the Kerala Hindu

Places of Public Worship (Authorization of Entry) Rules, 1965 prohibits women from entering the

premises of the temple. The people who are against this ban argue that prohibiting women from

entering the temple violates their fundamental right i.e. articles 14, 15, 19, and 25 granted by the

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Constitution of India which deals with the right to equality, the prohibition of discrimination based

on gender, freedom of movement religion respectively. The right to manage their religious affairs

cannot override the right to practice religion itself. These restrictions do nothing, just imposing

and glorifying patriarchy. It is always believed that everyone is equal in the eyes of God then why

this restriction has to be imposed on the women. Impurity and purity have nothing to do with

menstruation. Also, it violates Article 21 of the Indian Constitution which talks about the right to

life and personal liberty. Women’s liberty is burdened by ample of restriction. Hence, snatching

their liberty from them and violating the most important provision of the constitution.

There has been intense discussion, the debate around the nation among people, lawmakers, judges,

lawyers, etc. In 2006, a petition was filed in the Supreme Court by Indian Young Lawyers

Associations because it violates the freedom to follow and propagate religion and gender

discrimination.5 Five judges, headed by Deepak Mishra constitutional bench was given the

responsibility to look into the matter. The bench gave a 4-1 verdict, saying that the temple rule

violated women’s right to equality and worship.6The Supreme Court struck down the rule of

women aged between 10-50 not allowed to enter the temple which gives a positive ray of hope

that people will absorb something from it and will try to change their minds. Rule 3 (b) prohibits

the entry of women was struck down. CJI Deepak Mishra was of the view that prohibiting them

from entering the temple is curbing their freedom of practice and profess one’s religion guaranteed

under Article 25(1). He also said that if Ayyapana is Hindus, then this practice is not an essential

religious practice of Hindus.7 Justice Chandrachud said that the physiological characteristics of

women, like menstruation, have no significance or bearing on the entitlements guarantee to them

under the constitution. The menstrual status of a woman cannot be a valid constitutional basis to

deny her the dignity and the stigma around the same had no place in a Constitutional

Order.8Everyone on the bench was of the same view but the dissenting judgment was given by

Justice Indu Malhotra. She held that the temple satisfies the requirements for being considered a

separate religious denomination. Hence, has the right to manage its affairs and protected under

article 26(b).

Another example that we can take is of temple of Kamakhya Devi, the goddess yoni or vagina is

worshiped. This temple has an annual fertility festival called Ambuwasi Puja to mark the goddess’s

yearly menstrual cycle. On one hand there is celebration of menstruation and on the other hand

there is restriction imposed on women prohibiting them to enter the temple is contradictory in

itself.

IV. Violation of Article 21 of the Constitution

In some parts of India, there is a practice of seclusion that is practiced when women are

menstruating. In November 2018 Cyclone Gaja hit Thanjavur district which results in the death of

a 12-year-old girl.9 The death of that girl could be avoided and she would have been alive if only

people never got fooled by the irrelevant customs and tradition. The girl got her first period when

5 Samanwaya Rautray, Women of all ages can enter Sabarimala Temple, rules Supreme Court, Sept 29, 2018. 6 Indian Young Lawyers Association v. State of Kerala, 2016 SCC Online SC 1783. 7 Id. 8 Id. at 4. 9 Balaji C R, Regressive practice causes death of girl during cyclone, The Times of India, Nov. 22, 2018.

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Cyclone Gaja hit the district. So, she was sent out to sleep in a thatched barn which was behind

her house. The girl died because the coconut tree fell on that thatched room. The girl slept there

because they followed a tradition where a girl has to sleep and stay outside the house during

menstruation for a week as she is considered impure. The whole community is responsible for the

death of that girl. Sitatola, a village in central Maharashtra has a custom where women and girls

going through their menstruation have to live in gaokar (small hut outside the village).10 They find

it problematic as in the rainy season the water leaks through the roof and water come inside. There

is no proper kitchen because they are not allowed to cook. There is a lack of basic amenities there,

no proper bedding, electricity is there. This practice is more prevalent among the Gond and Madiya

ethnic groups. The Gonds are the largest indigenous group in central India and hail from the states

of Maharashtra, Chhattisgarh, Andhra Pradesh, and Orissa. Many girls do not go to school while

they are on their periods and live in the hut.

All the above-mentioned things are the perfect example of inhumane treatment in the name of

customs and traditions. These things snatch the right of the women to move freely, curbing their

freedom. The practice of seclusion, banishing women on the time of menstruation violates article

21 granted by the Constitution of India which states that no person shall be deprived of his life or

personal liberty except according to the procedure established by law. One of the other girls is

dying due to this tradition, there is no protection towards that. It includes two right, first, right to

life and second is right to personal liberty. It is one of the fundamental rights that is granted to

every citizen, even to foreigners also. This is the basic right which is provided and without this

right, there is no existence of any other right. It is not only the right to live by breathing, mere

existence is not the true interpretation of this right but living with necessities, amenities,

environment, physical and mental health that let a person live their life with full dignity and

without any mental torture or pressure. Living a dignified life without any exploitation and

harassment also comes under article 21. The second aspect of the right to life is personal liberty.

Women do not have the personal liberty to do anything while they are on their periods.

V. Menstrual Hygiene Management

Menstrual Hygiene Management is very important for the health of girls and women during

menstruation. Poor menstrual hygiene can lead to many health problems. It is more challenging

for the women of rural areas to maintain menstrual hygiene. In Stockholm, 2017, it was

propounded by Human Rights Watch and WASH united that the simple biological fact of

menstruation should not be a barrier to gender equality or stymie women’s and girls’ realization

of their human rights.11It released guidelines for aid and development groups and others who work

with women and girls to address human rights in menstrual hygiene in their programming. One of

the problems faced by them is of lack of separate closed spaces used for bathing and excretory

purposes in most of the rural households. When they do not have a closed space they use open

spaces for the same purposes. They take bath wearing clothes because they can’t take bath properly

in the open which gives rise to numerous diseases, especially to the genitals. Another problem is

the lack of financial resources. It creates hurdle in the creation of a bathroom and not only this it

also prevents them from buying other important necessities to maintain hygiene. Their inability of

10 Barkha Mathur, Where women are banished to a ‘period hut’ with no power or loo, The Times of India, Nov. 27,

2018. 11 Menstrual Hygiene a Human Rights Issue, Humans Rights Watch, August 27, 2017.

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buying sanitary napkins lead them to use clothes. The cloth absorbs the menstrual blood which

leads to the accumulation of germs even if it washed regularly. After all, they do not have a proper

place to let it dry because they cannot put it out because of the menstrual taboo attached to it. Lack

of education is another problem which is faced by those women. They are not even aware of the

problems that are caused due to improper hygiene and what health problems they can suffer from

that. In the village people usually never talk about it and consider it a taboo. So, the women usually

dump the menstrual waste in the place where they take bath because that is the most probable place

where men will not enter. Most of the women in rural areas use unhygienic products such as clothes

and wood shavings that can very harmful to the vaginal area of women. They find no benefit of

using pads because they have an alternative that works almost as long as pads works and due to

lack of education, they do not consider menstrual hygiene as an important concern. Moreover,

most of the low-cost sanitary napkins are smaller in size and are of low quality. There is a lack of

water facilities in rural areas which lead them to not able to wash the clothes properly and then

using it again and again.

According to NFHS 2015-16 survey, the number of women using hygienic means of managing

menstruation in India is 78% in urban areas and 48% in rural areas and overall 58%. The

percentage of using hygienic products in Tamil Nadu, Kerala, and Delhi is 90% while in Bihar is

30%.12 There are 23 million women drop out of school every year when they start

menstruating.13Government who give free pads to girls of rural areas in anticipation of them

coming to school daily aggrieved by the percentage of girls dropping school will be of no use as

the pad provided by them is of a substandard quality which is of no use and if anyone would

provide them sample once they will not start buying it from the next time because of the financial

restraint. In the schools, there is no proper toilet and napkin dispensers. Also, there is no proper

infrastructure that can provide a hygienic environment. Hence, giving pads as an incentive so that

they can come to schools is not enough. The places in rural areas where women are using sanitary

napkins, there is no proper way of disposing of it because of the taboo present in society. There is

no collection of transportation of waste. Most of the women burn the napkin or dispose of it in the

latrine. All these things are not talked or discussed because they find this as a hushed topic and

not as a serious issue. When people will discuss it then only, they can derive a definite solution.

Under the Swachh Bharat Abhiyan scheme, menstrual hygiene has been considered as a matter of

importance and great concern. According to the Swachh Bharat (Gramin) guidelines, funds

allocated for information, education, and communication (IEC) may be spent on bettering

awareness on menstrual hygiene in villages.14

VI. Condition of Women during Menstruation in Nepal

All these discriminatory practices such as menstruation huts and superstitions for women during

menstruation is not only prevalent in India but is also prevalent in other parts of the world and one

of those which is in very pathetic condition in terms of the condition of women during menstruation

is Nepal.

12 International Institute for Population Sciences and ICF, National Family Health Survey, Ministry of Health and

Family Affairs, 2015-16, India. 13 Saptarshi Dutta, 23 Million Women Drop Out of School Every Year When They Start Menstruating in India,

NDTV, May 28, 2018. 14 Swachh Bharat Mission (Gramin) Guideline: Swachh Bharat Mission Gramin; 2017.

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In Nepal, especially western Nepal, there is an old aged and largely practiced practice where

women are not allowed to stay at their homes while they are menstruating or are on their period.15

They are considered impure, polluted, and toxic and are prohibited to come in contact with anyone.

It is a popular belief and superstition there that if anyone will come in contact with them, will be

devastated. It is believed that they will bring bad luck and god will be angry if they come in contact

with anyone or stay in the house. So, they are forced to live in a small hut or animals such as cow,

goat, etc shelter which are very tiny and are made up of mud or rock. They are basically called

menstruation foxholes. In general, it is forcing women into seclusion during the menstruation

period. This practice is called Chhaupadi (in Nepali it means someone who bears an impurity) and

it is going from hundreds of years. According to the people of these castes, god and goddesses

becomes angry and infuriated if a woman stays at home during menstruation. It is a Hindu religious

myth that Indra, the King of Heaven was accused of his sin. He killed a Brahmin and was indulged

in illicit sexual acts with women during his quest. Hence, in order to repent his sin, all women are

punished until now in the name of menstrual taboos. They suffer a lot inside those tiny huts which

are just 3 feet tall and they have to make it on their own. They are not allowed to cook, have good

food, come in touch with anyone, and have to ignore people just for the sake of their “good luck”.

They work and do continuous labour in the field without talking to anyone. The girls do their

school homework in those small huts only. A farmer said that if a woman enters a family’s home

during her period, three things will happen namely a tiger will come, the house will catch on fire

or the head of the house will get sick. Even his teenage niece was ready to crawl into storage

beneath his house which was dark, cold, cramped, and filled with itchy straw because she didn’t

want her parents to die. Women who just gave birth are not exempted from this practice they also

have to undergo through the same, leaving their new-born alone. They are not allowed to cook;

the family members of their family just slide the food making sure that they do not touch them.

They are not even allowed to touch the livestock. Many girls are raped at night in that hut and

exposed to many dangers, majorly snakebite.

Earlier society and lawmakers never realised the dire need of law and order for curbing this form

of violence until the number of girls dying due to this practice increased. The practice of chhaupadi

was ban by the Nepal Supreme Court in 2005, it was declared illegal but due to lack of legislation

it was never criminalized and the practice was still on.16 There was no effect on the people by the

ban, people used to still practice the same. After few years, Supreme Court gave guidelines also

for the same but there was no scope of improvement as people who force their wife or daughter to

seclusion cannot get arrested or there was no penalty imposed on them. The Police did not show

active participation and they often saw it as a private family issue. These things affect women’s

health also. They suffer from many diseases like pneumonia, diarrhoea, suffocation, and

respiratory tract infection during their seclusion period. In 2017, the government formulated the

law but it came in effect on 18 August 2018.

According to clause 168(3) of the criminal code, anyone compelling a woman to live in the shed

will have to serve three months of jail term and in addition, he/she has to pay Rs 3,000 as fine. The

penalty is comparatively higher for the people holding the public position. According to a report,

15 Elisha Shreshtha, Everything you need to know about Chhaupadi, the taboo ritual of banishing women to period

huts, The Kathmandu Post, Dec 11, 2019. 16 Danielle Preiss, Law in Nepal Sets Penalties for Forcing A Woman into A Menstrual Shed, NPR, Aug 10, 2017.

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five months after the criminal code came into effect, the local police have not yet received a single

case against the offenders for this offence. The main problem is that women and girls are hesitant

and reluctant at the same time to complaint against their relatives and parents. They need to be

educated as they themselves believe in this practice. Some of the women who never believed in

this concept are forced to do it due to the pressure of the society burdened by culture, traditions,

and superstitions. Local administration and government took no measures to curb this practice. No

proper awareness is created among them until now. When we compare it with India, it doesn’t

have any proper laws to deal with it.

VII. Conclusion And Recommendations

In conclusion, I would like to say that the first and foremost thing that the people of our Indian

society should be doing is changing their mind-set and mentality. The seed of every evil has its

roots in the mind-set of people. Secondly, the people, especially the girls and women need to get

educated about menstruation properly that it is not a disease and the myths/taboo surrounding it is

simply vague, illogical and irrelevant in the present times. People should not carry the baggage of

customs and traditions that did not change with the dynamics of society and are in violation of

human rights. For instance, practices such as child marriage, sati pratha, the prohibition of widow

remarriage, etc. are abolished now. These practices are also changed with the time and at that time

people were against these reforms but at the end of the day, they accepted it. So, all these things

will take time but people should not be static when it comes to their views. Every coin has two

sides to it. So, people should try to understand from the other perspective also. They should not be

rigid in their thoughts. Even the advent of Hindu Code Bill also created a lot of controversies but

it made a great difference and change in the life of Hindu women.

Our country has been developed a lot as compared to previous times but there is yet a lot to get

changed. Earlier in 1990, the advertisement for sanitary napkins was banned but the ban was

uplifted later on. The movie Padman was a great initiative by the Indian Cinema, it gave a great

message about menstrual hygiene and why it is important for women. The most uneducated and

illiterate i.e. the people of the rural areas need to get educated about the importance of menstrual

hygiene and more awareness campaigns should be conducted in the rural areas to educate them.

The main problem with them is the inability to buy sanitary napkins. Low-cost and tax-free sanitary

napkins should be made, so that poor people can also afford it. Posting stories on social media will

not help until and unless something will be done for the one who needs it the most. Proper toilet

and sanitation facilities should be provided in rural areas. More and more workshops should be

conducted so that maximum information reaches them. In schools also there is not much

information in the book related to menstruation, there should be a separate chapter for the same.

The seclusion of women during the time of menstruation should also be discouraged and there

should be a proper piece of legislation to deal with that as it is a serious issue like, there is

legislation in Nepal for it. There are many sections of the society where there is a concept of

banishment of women during periods which is not known till now. So, firstly the target group

should be known then only something can be done for the same. There is a dire need to identify

which are the places where there is a practice of practices such as chhapupadi, gaokar, basically

menstrual huts. It is of no use it is just taking the life of innocent girls and women. Sabarimala

temple judgment is also a great step towards the change as this encourages women to go to the

normal temple also while they are menstruating. Winning documentary Period. End of Sentence

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also showed the patriarchy mentality of the society. It covers the story of a village 60km away

from Delhi where people address it as a disease or illness and girls were reluctant in talking about

the same. Some of the people were not familiar with the concept of sanitary napkins and some of

them were not financially capable enough to buy it. Even when the pad machine was installed

there, men there knowingly described it as Huggies and pads. The taboo there is also creating a

large gap between both the genders of society. When girls are given information about

menstruation in school before menarche, boys are not given the same. Even they should also be

educated about the same, it is just a natural process that comes under the subject of biology. Even

if they are given information about the same, there is a separate lecture on this topic for both of

them. When from the very start girls are taught that they can’t talk about all these things to a boy

they will consider it as taboo something that can't be talked about freely. For the emancipation of

women, it is necessary to free them from the chain of myths, taboos, and superstitions. People

perceive menstruation as a limitation to a woman’s ability to do things and they are incorporating

the same things to women from generation to generation. In reality, contrasting it is not a source

of inability for the women. Indian society needs to stop stereotyping and hyping petty issues for

no reason. There is a dire need of getting rid of the cultural taboos, myths, social stigmatization,

and historical misunderstanding that is there in the society for so long and is dangerous for women

both physically and mentally. People not wanting to get rid of their rigid thought and beliefs is a

different thing but making fun of something like that is very disgusting and disturbing at the same

time. Hypocrisy is on another level, on the one hand, people don’t want to talk about it openly and

just accept the fact that it is very natural but on the other hand they want to make fun of it publicly.

There is a correlation between hormonal levels at certain periods in the female menstrual cycle

and emotional states such as anxiety, tension, and mood swings. The PMS jokes which people

make verbally and on social media are not fine, it’s very discouraging and demotivating. It is a

shame for the Indian society that they cannot address any problem related to the same thing and

hush things up but they wanted to make jokes on that very same thing, just for fun sake. The root

for everything is, was and always will be the mentality and mindset of the people.

“We want more Padman, Sabarimala Temple Judgement and Period. End of Sentence

documentary”.

197



EFFECTUATING THE PROCESS OF RESOLUTION AS AGAINST LIQUIDATION: A

PROMOTERS’ PERSPECTIVE

ASHWIN BALA1

ABSTRACT

The term promoters connote those people who possess the requisite intention to form a

company and also take necessary steps to bring it into existence. Therefore, the promoters

can be comfortably labelled as fiduciary agents of the company. In the earlier legal

framework under the Companies Act, 2013, promoters were barred from entering into the

liquidation process altogether. However, with the coming up of the Insolvency and

Bankruptcy Code in the year 2016, section 29A ensured their re-entry into the liquidation

process. The amended law may allow the promoters to propose schemes once the company is

in liquidation. This sea change brought by the IBC, 2016 altered the existing legal structure

pertaining to liquidation. However, it is to be categorically stated that no ‘back-door’ entry

shall be allowed for ineligible promoters in the liquidation process. The present paper

attempts to analyze the sanctity of section 29A of IBC, 2016 vis-à-vis the perspective of

promoters. The author also draws a line of comparison of the Indian law as well as the law in

United States of America (USA) for the issue in question.

Keywords: Liquidation, Promoters, back-door entry, fiduciary, Insolvency and Bankruptcy

Code, 2016.


I. Introduction

A resolution applicant’s eligibility to submit a resolution plan had been a lacuna till the insertion

of Section 29A under the IBC,2 which prohibits those persons or related party – significantly

promoters - who had contributed to the defaults of the company’s debts. Notwithstanding that

this amendment managed to prevent the back-door entry of errant promoters, it complicates the

resolution process. Prima facie the RP is burdened with the responsibility of scrutinizing the

eligibility of such applicants; thus, wrenching the statutory period of 330 days3 for the

completion of resolution process. Further, it is imperative that there would be a conflict of

opinion between the committee of creditors and the resolution personnel as it happened in the

CIRP of MBL Infra. Ltd.4 It is also pertinent to note the explanation to Cl. (j) of Section 29A of

the IBC, has a very extensive application than required for the fruitful the completion of the

CIRP, as it may render some promoters to lose the company forever due to genuine business

failures; not to mention the cases where the promoters bid supersedes the offer made by other

bidders in the resolution process, nonetheless still they might be not eligible under 29A. The

insolvency of Essar Steel Ltd. is an epitome of such a situation and the bid made by

ArcelorMittal was directed to be revised since it was way to lower than the promoters offer. The

situation gets even worse if the enterprises are smaller with less or no prospective bidders other

than the promoters themselves. At this juncture it is also important to note the observation of

Hon’ble Supreme Court of India that the preamble of the IBC discourages liquidation.5 Though

Section 29A of IBC deters errant promoters, before even the process of liquidation could

1 Ashwin Bala - Fourth Year, B.Com. (LL.B.), Tamil Nadu National Law University, Tiruchirappalli. 2 The Insolvency and Bankruptcy Code (Amendment) Ordinance 2017. 3 Section 12(1) of The Insolvency and bankruptcy Code, 2016, Acts of Parliament, No. 31 of 2016. 4 RBL Bank Ltd. v. MBL Infrastructure Ltd. CA (IB) No.543/KB/2017. 5 Swiss Ribbons v. Union of India, WP (civil) No. 99/2018

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commence, the liquidator could arrange a scheme under Section 230 of the Companies Act,

2013, that may pave way for a back-door entry of the promoters.6

In the light of the above stated position of law and practice, this paper would dwell upon the

promoter’s awe of losing the company on one hand and the objective of the IBC on the other. It

is important that it needs to be considered holistically, and thus, would come up with a rationale

for having 29A, and the goodness of it as held against the effective resolution of the debt-ridden

insolvent companies.

II. An Overview of the Objective of IBC

“The soul of the code is to keep the firm by balancing the interests of all the

stakeholders for which a successful resolution is needed” – M.S. Sahoo,

Chairperson of IBBI.

The desideratum of IBC is to consolidate and amend the laws pertaining to resolution and

liquidation of insolvencies7 that caters to almost all types of business entities. The primary

objective underlying the IBC is to maximize the value of the assets of the debtors and prevent the

degradation of the same with the passage of time.8 Basically the IBC includes all type creditors

under the definition clause in the code,9 the inclusion of operational creditors is per se a big

debate10 which will not be touched upon for the discussions herein. What is more important and

attractive feature of the IBC is the ‘time bound resolution process. However, this was not

followed hard and fast owing to the fact that it being a new legislation and limited resource

persons.11 Therefore, in 2019, it was amended to the effect that the resolution process must be

completed within 330 days including extensions if any.12

Thus, it can be said that the IBC is a comprehensive mechanism to integrate fragmented

corporate insolvency regime which was ambiguous, inconsistent and inefficient13 so that the flow

of credit by preventing liquidity-crisis14 in the country is not disdained owing to defaulting

6 SC Sekaran v. Amit Gupta, CA (AT) No. 495&496/2018 7 Preamble (“An Act to consolidate and amend the laws relating to reorganization and insolvency…”) of The

Insolvency and bankruptcy Code, 2016, Acts of Parliament, No. 31 of 2016. 8 Id. 9 3(10). “creditor means any person to whom a debt is owed and includes a financial creditor, an operational

creditor, a secured creditor, an unsecured creditor and a decree-holder.” 10 Sunrise 14 A/S Denmark v. Ravi Mahajan, MANU/SC/1052/2018; Macquarie Bank Limited v. Shilpi Cable

Technologies Ltd., MANU/SC/1609/2017; Mobilox Innovations Private Limited vs. Kirusa Software Private

Limited, MANU/SC/1196/2017. 11 Singh & Associates, Insolvency Round-Up, 1 Manupatra, 10. (August 2, 2020, 10:45 PM)

https://www.manupatrafast.in/NewsletterArchives/listing/Insolvency%20Singh%20Associates/2017/Jul/Vol%20I%

20Issue%20I.pdf 12 Section 12 of IBC (Amendment) Act 2019. 13 Bankruptcy Law Reforms Committee, The Report of the Bankruptcy Law Reforms Committee Volume I:

Rationale and Design (Nov 2015) para 3.3.1. (The Sick Industrial Companies (Special Provisions) Act 1985; The

Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act 2002; The

Recovery of Debts Due to Banks and Financial Institutions Act, 1993; Companies Act 2013) 14 Eu Jin Chua, Bankruptcy Reform in China, 1 Pratt’s J. Banking L., 552 (2006).

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debtors and instill faith among investors. The code has coherently unified the laws enforcing the

rights of creditors and provided a holistic framework for the debtors to revive the company.15

The dichotomy of resolution and liquidation is inevitable nonetheless, what is more important

here is ‘appropriate solution’ should be strived for rather than liquidation which should be the

last resort, as time and again emphasized by the NCLT.16

III. Promoters’ Perspective

With the might of IBC, the promoters face an apprehension as to they will lose the company

unless they settle or resolve the dues. It is pertinent to note that India being a country where

promoter run business is prevalent,17 the tendency of IBC that caters to the promoters, both

defaulting and genuine, needs a serious consideration for shaping the law in future. Law should

provide a reasonable opportunity for the promoters as well in rehabilitation of their companies. A

mere technicality or procedural irregularity should not render prejudicial to the genuine

promoters notwithstanding the large number defaulting promoters. It is relevant to note that

bankruptcy regime in US more matured18 as against the conservative position India where

promoters can’t initiate insolvency19

IV. The viability of Section 29A

In the following section, the bar on certain resolution plans will be analysed with respect to the

duty of interim resolution personnel (RP). Further, an analysis of the plans brought in by

promoters will be undertaken, in which case a lot of intricacies crop up on the basis of the

genuineness of the promoters. Moreover, when an entity is financially distressed, it is the

promoters get the first taste of it, and they might siphon of assets before even the creditors can

take a glimpse at it.20

Section 29A provides for the eligibility of resolution applicants. The significance is that these

resolution plans by such applicants will be put before the CoC, if approved the resolution shall

take place according to the plan. Under this provision certain persons, owing to their contribution

directly or indirectly to the insolvency of the company, make them ineligible to submit a

resolution plan.21 The pertinent point here is the observation of Supreme Court on Cl. (c) of

Section 29A in ArcelorMittal India Pvt. Ltd. v. Satish Kumar Gupta22 that any person who

15A Primer on the Insolvency and Bankruptcy Code, 2016, Nishith Desai Associates, February 2019 (August 3,

2020, 05:07PM) http://www.nishithdesai.com/fileadmin/user_upload/pdfs/Research_Papers/A-Primer-on-the-

Insolvency-and-Bankruptcy-Code.pdf 16 (M M Kumar, President stated that The sole objective of the Insolvency and Bankruptcy Code 2016 is to find

solutions for stressed assets arisen out of non-performing assets with best of intent as so many things are involved in

the process and liquidation perforce would be the last way out which the tribunal would avoid optimally)

IBC’s Objective not to emphasise on Liquidation: NCLT, Economic Times, January 2018, (August 3, 2020,

05:45PM) https://economictimes.indiatimes.com/news/economy/policy/ibcs-objective-not-to-emphasise-on-

liquidation-nclt/articleshow/62355609.cms 17 Andrew F. Brimmer, The Setting of Entrepreneurship in India, 69 QJE (1955), pp. 553-576. 18 See The United States Bankruptcy Code 1978, §1121(b) & (d)(2)(A). (United States) 19 Supra note 2 at Section 11. 20 Moon v Franklin (1996) BPIR 196. 21 Supra note 2 at Section 29A. 22 ArcelorMittal India Pvt. Ltd. v. Satish Kumar Gupta, MANU/SC/1123/2018

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wishes to submit a resolution plan should pay off the debt of the debtor to make himself eligible

under the provision. Since ‘any person’ includes those persons who manage or control or be a

promoter of a corporate debtor. In light of this, it is pertinent to view this provision in a

background where promoter-controlled corporations are prevalent.

V. Widening the scope ineligibility and Restricting eligibility

After the 2018 ordinance, Section 5(25) of the Code is so amended to give effect that a resolution

applicant is one who submits the resolution plan upon ‘invitation’ made under Section 25(2)(h),

which further burdens the RP of checking the eligibility criteria for any prospective applicants

and not to mention the approval of CoC. It increases the burden on the RP given the time

constrained CIRP and amount of resources would it take to investigate the applicants. Most

importantly the approval of creditors is the slippery slope fallacy here; once a CIRP commences,

the creditors and promoters of the company may not have good relationship as the former might

lose trust on the latter. The RP should be mindful of the fact that the resolution plan is not only

beneficial to the creditors, it should also be serving the object of resolution.23

Further, the language used in the clauses defining the disqualification is ambiguous and opens

room for frivolous and unwanted litigations. It states that persons acting ‘jointly or in concert’,

which is vague and requires explanation as to the scope of application. There is high possibility

that even genuine promoters who may attributed to the actions of erring promoters will be made

ineligible at the behest of creditors who – backed by the promoters competitors24 - wants to take

undue advantage of the corporate debtor.25 At this juncture, it is also useful advert to the rule of

anti-deprivation.26 The situation gets even worse when Cl. (j) is analysed. It bars any ‘connected

person’ which unscrupulously increases the ground for disqualification.

In the light of above discussion, it would not be wrong to say that the Code’s take on resolution

strong arms the creditors by leaving the genuine promoters at the mercy of the creditors. This

assertion was made in the case of RBL Bank ltd. v. MBL Infrastructure Ltd,27 to the effect that the

legislature couldn’t have intended to curb genuine resolutions preferred by promoters as against

the objective of the Code. Promoters as a class shouldn’t be rendered prejudicial in the CIRP.

This might not hold good for big businesses with bigger management and attractive business

opportunity where the prospective bidders are more. Whereas in case of those companies which

is neither a MSME nor a corporate giant are drastically affected. The above- mentioned case is a

progressive one which takes the perspective of genuine promoters as well. This is not without

substance taking cognizance of the promoter-controlled business regime in India.

23 Garima Mehra and D Sharma, Section 29A of the IBC: A Pandora’s box, IndiaCorpLaw, June 29, 2018 (August

4, 2020, 10:17 AM) https://indiacorplaw.in/2018/06/section-29a-insolvency-bankruptcy-code-pandoras-box.html 24 Hamish Anderson, THE FRAMEWORK OF CORPORATE INSOLVENCY LAW, 174 (2017); See Central Inland Water

Transport Corporation Ltd v. Brojo Nath Ganguly (1986) 3 SCC 156. 25 In re Jeavons, ex parte Mackay 8 LR CH App 643 (1873). 26 Moon v Franklin (1996) BPIR 196; Whitmore v Mason (1861) 2 J & H 204; Belmont Park Investments Pty Ltd (Respondent) v BNY Corporate Trustee Services Ltd (Appellant) (2011) UKSC 38. 27 RBL Bank ltd. v. MBL Infrastructure Ltd, NCLT (Kolkata) C.P(IB)/170/KB/2017

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VI. The ‘Backdoor’ entry – lacunae

Prima facie, it is pertinent to consider the view in Wig Associates Pvt. Ltd. case,28 is unfounded

and against the objective of the code. It was held that section 29A doesn’t apply to ‘ongoing’

CIRP, which in the opinion of the author culverts a back-door entry for erring promoters. If the

intent of the legislature was very clear to the court as to not allow errant promoter, why did the

NCLT take such a view. It could have very well interpreted retroactively. Therefore, this

hesitation to take a stand in this regard compromises the corporate maturity in India. The

aftermath of the CIRP also holds a possibility of back door entry. That is to say in the case

failure of resolution and the corporate debtor is forced to liquidation, the promoters can get

shelter under Section 230 of the CA 2013 notwithstanding the ‘watch dog’ provision, 29A under

the code. Section 33 of the Code stipulates for passing liquidation order by adjudicating authority

if the CoC wants, whether or not resolution fails.29

Under section 230 of the CA 2013, the promoters and the creditors can arrive at a settlement at

the liquidation stage. It might be argued that it has to be approved by a majority of 75% whereas

the IBC provides for 66%, so if one cannot get the latter, how could he possibly get the former.30

But it should be understood that the situation in the former and latter case is entirely different.

Until the CIRP, the CoC has the tuft of the corporate debtor, as soon as the CIRP is rendered

nugatory, then market forces would determine liquidation which highly risky and nobody has

control. In certain cases, the haircut the creditors get is too short as the sums barely add up. So, it

wouldn’t be wrong to say that in liquidation, the creditors are at the mercy of the promoters.

Therefore, using this provision – Section 230, power to Compromise or make arrangements with

creditors and members, the promoters can easily regain the lost business and start afresh. This is

not without substance, since there are many instances of liquidation31 where the promoters have

successfully regained the control of the corporate debtor at a very cheap price than the actual

dues that should have been paid.

VII. Committee of Creditors versus ‘Actual Resolution’

It is obvious and rationale to point out that the CoC hold the tuft of the corporate debtor in the

CIRP in India as opposes to the ‘debtor in possession’ model in US. As we are aware of the

objective of IBC - lean towards liquidation as last resort only, wouldn’t the CoC’ manage to

bypass resolution to liquidate swiftly. It is pertinent to take note of Section 33 of IBC that RP can

submit before the tribunal for liquidation, and the tribunal may pass an order accordingly if the

majority (51%)32of creditors whims so.

28 Wig Associates Pvt. Ltd., NCLT (Mumbai) C.P.No.1214/I&BC/2017 29 33(2). “Where the resolution professional, at any time during the corporate insolvency resolution process but

before confirmation of resolution plan, intimates the Adjudicating Authority of the decision of the committee of

creditors to liquidate the corporate debtor, the Adjudicating Authority shall pass a liquidation order…” 30 Sanjeev Ahuja, Defaulting promoter getting ‘backdoor’ entry to regain companies under IBC, in Dipak Mondal

(ed.) BusinessToday, April 19, 2019 (August 4, 2020, 12:45 PM) https://www.businesstoday.in/current/economy-

politics/defaulting-promoters-getting-backdoor-entry-to-regain-companies-under-ibc/story/338638.html 31 Liquidation of Amar Dye Chem., Gujarat NRE Coke, Hindustan Dorr, etc. 32 (Previously 75%) The IBC (Amendment) Ordinance, 2018.

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Thus, it would not be wrong to conclude that spirit of the code can be bypassed at the behest of

creditors at the initial stage of CIRP itself. This statement is not made without substance owing

to various cases in which the tribunal had passed liquidation order at the initial stage itself, which

might look too good for the creditors, it causes serious prejudice to the corporate debtor which

strives for perpetuity, and the promoters who aim to revive the business.33 The interest held by

the promoters over the company, that too in India, in the view of the author has a higher force

and this should not be abruptly blockaded solely on the presumption of ‘promoters at default’.

The interpretation of Section 29A would render nullity if there is no ample time and consensus

between the RP and CoC. It is pertinent to draw attention to the proviso to Section 30(4) of the

Code by virtue of 2018 ordinance,34 which gives power to the CoC to given the resolution

applicant a period of thirty days to clear the debt so as to become eligible under the 29A. But the

time taken for the process will only stiffen the CIRP time period rather than giving an

opportunity to prospective promoters, rendering the whole purpose of the Code useless.35

Whereas in US, the corporate debtor given 120 days which is extendable up to 18 months.36 The

implications this position will be discussed in the next sub-section.

VIII. Instances of CoC’ betrayal on the IBC

At this juncture it would rational to access certain cases where the creditors have acted against

the spirit of the code. In Omkara Asset Reconstruction Company (India) Ltd. v. Unimark

Remedies ltd.,37 the CoC conveniently in its meeting refused to even open the envelope

containing the resolution plan solely on the ground that it was submitted after the cut-off date set

by the RP. Clearly it is a case of procedural lapse but the contention of the applicant is not

without force. The accord of the creditors seems to be arbitrary application of the law so as to

cause prejudice to the resolution applicant herein. However, the NCLAT rightly pointed out,

though the applicant might have approached time barred, but it was made before the completion

of resolution process and the facts suggests there wasn’t any undue delay. So, in the interest of

IBC, it would be proper to consider such a plan.

The situation peaks to a boiling point as in the case of Binani Industries Limited v Bank of

Baroda & Anr,38 where the resolution plan of the Promoter company, Ultratech Ltd. was rejected

on the ground that it was made contravening the process prescribed in the process document.

90% of the CoC approved another plan by Rajpuatana Pvt. Ltd. The rest 10% had a dissenting

view that their haircut was done inequitably39 in the second plan which was not the case in the

first plan. The NCLAT was of the view that just because there was procedural lapse and being

33 VIP Finvest Consultancy Pvt. Ltd. v. Bhupen Electronics, NCLT (Mumbai) C.P.No. 03/I&BP/2017; Chivas

Trading pvt.ltd. v. Abhayam Trading Ltd., NCLT(Chennai) C.P.No. 491 (IB)/CB/2017; C.A. Rajendra K. Bhuta v.

Best Deal TV Pvt. Ltd., MANU/NC/2275/2018. 34 Supra note 31. 35 See KSK, Supreme Court decodes Section 29A of the IBC, November, 19 2018 (August 4, 2020, 07:37 PM)

https://ksandk.com/insolvency/3006/#_ftn1 36 The United States Bankruptcy Code 1978, §1121(b), (d)(2)(A). 37 Omkara Asset Reconstruction Company (India) Ltd. v. Unimark Remedies ltd. (through resolution professional)

& Anr, NCLAT, C.A.No. 131/AT/IB/2019. 38 Binani Industries Limited v Bank of Baroda & Anr., C.A.No. 82/AT/IB/ 2018 39 See Andrew Keay, In Pursuit of the Rationale Behind the Avoidance of Pre-Liquidation Transactions, 18 Sydney

L. Rev. 55 (1996).

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the promoters, it should not render the spirit of the code to nullity. The action of the CoC was

held to be arbitrary and doesn’t warrant any merit. In fact, the first plan when tabled for voting,

received 100% approval.

It is pertinent to delve upon a landmark case of promoter-creditor stifle in insolvency of Essar

Steels ltd. In this CIRP, the promoter, Ruis missed deadline to settle the dues. So the promoter

was declared NPA and with the advent of 2018 ordinance they were ineligible. A bid was made

to acquire the company to which Arcelor Mittal’s bid was accepted. In this situation, the

promoter comes back to bid for a higher value with attractive features for resolution.40 On the

other hand, simply invoking the provisions under Section 29A of IBC, the CoC rejected the plan

went on with the latter’s offer. The SC also affirmed the action of the CoC as it was consistent

with the Code.41 At this juncture, it is pertinent to draw attention to Section 12A, which allows

reverting the insolvency application and settle the dues. Since the ordinance has only prospective

application, the promoters in the present case couldn’t have taken the shelter of such a

progressive provision. Therefore, they had to bid for acquiring and reviving the company which

failed at the behest of the CoC.

In the light of above discussion, it should be understood that the legislature couldn’t have

intended unscrupulous power to the CoC. It is the duty of the creditors to maintain the CIRP at

revival and not liquidation. Further, the Code’s take on the errant promoters, invariably affects

the genuine promoters as well.

Lessons from US

The US followed the creditor control regime till 1938. There are studies which shows that the

‘great depression’ is due to this creditor controlled corporate resolution.42 There was high

volume of collusion between creditors and debtors for the latter to acquire the business without

paying the whole debt and start the business afresh, and this was frowned upon in the early 20th

century.43 However, the US realized this lacuna and changed the position to debtor controlled

regime which also benefitted the by creditors as it induced the creditors to conduct efficient due

diligence before extending credit, ensuring that reckless and bad lending is prevented.44

IX. Key Points to Ponder upon

The objectives of the IBC is three fold; primary objective is towards ‘resolution’, secondary

objective is maximization of the value of stressed assets and the tertiary objective is to promote

entrepreneurship, availability of credit and balancing interests. Corporate resolution is not ‘sale’

40 Paragon Finance Plc v. Nash, (2002) 1 WLR 685; White v Davenham Trust Ltd (2010) EWHC 2784 (ch); 41 Suresh P Iyegar, Upholding IBC tenets, apex court says promoters cant bid for stressed assets, BusinessLine,

January 25, 2019(August 5, 11:57 PM) available at https://www.thehindubusinessline.com/companies/apex-court-

bans-founders-from-buying-back-bankrupt-companies/article26087833.ece 42 Walter Chandler, The Revised Bankruptcy Act of 1938, 24(11) ABA J. 880 (1938). 43 Walter D. Coles, The Solicitor General’s Bankruptcy Report and New Bankruptcy Bill, 18(5) ABA J. 293 (1932). 44 See Joseph Stiglitz, GLOBALISATION AND ITS DISCONTENTS, 237 (2002).

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or ‘auction’ per se, rather it should be construed to give effect of a going concern. Further, it is

not only about recovery of dues as, it also aims at reviving the corporate debtor back to life.

Liquidation should be the last resort. Moreover, the resolution plan so approved by the CoC

should not render certain creditors’ haircut as that of liquidation.45 Section 29A aims at

preventing the direct and indirect intervention of all persons who were responsible for the

downfall of the corporate debtor. With this advent, the promoters as a class are being made

ineligible to submit resolution plan, albeit it is not expressly mentioned.

The prospective application of 29A opens a back door for promoters in the ongoing CIPR, which

in all fairness dilutes the stand of IBC vis-à-vis promoter-controlled businesses in India. Further,

the existence of Section 230 of Companies Act, 2013 renders the provision of the former to

nullity, and also derogates the time constrained CIRP. Widening the scope of ineligibility of

resolution applicant has burdened the CIRP and owing to the powers conferred on the CoC

during the CIRP, even genuine resolution application from the promoters are at the mercy of

them. The application of Section 12A is made in such a way that even genuine withdrawal from

the CIRP is impossible.

The action of CoC while entertaining the resolution plan is highly subjective to arbitrary

disapproval and rendering against the spirit of resolution. Further, it is natural that creditors

distrust the promoters and such have affect invariably on genuine promoters as well.

Lessons to be Takes from Certain Cases

Taking cue from the recent cases of stressed companies are better to formulate the code

accordingly. The case of Jetairways ltd. is one such instance where the promoter is genuinely

trying to pay off the debts, the creditors doesn’t seem to give way. The creditors are much

bothered about recovering the dues from the defunct Jetairways than perceiving a going concern.

This is evident from the fact that promoter was forced leave control of the company, who is in a

better position to revive the company given his experience in the field. Consequently, the

company is losing the business owing to the apprehensive action of the creditors.

There is another side to the position of promoters, that too in India where family-controlled

business is prevalent and the family members bail out the errant promoters from losing control of

the company, more so from being jailed. This was the typical case in the insolvency of RCom,

where the debt due to the creditor was settled at a very low-level owing to the errant

management of the corporate debtor. Further, this kind of arrangement is not done for charity but

the promoters carve a scheme so as to get unduly benefited from it. For instance, if the RCom is

going to be liquidated, the first bidder in the auction of spectrum would be RJio. Because only

RJio can use such bandwidth for operation and it only be a prospective bidder.46 There are also

45 Rebecca Parry, Extortionate Credit Transactions (Insolvency Act 1986, Sections 244 and 343), in Rebecca Perry

et al (eds), TRANSACTION AVOIDANCE IN INSOLVENCIES, 197 (3rd ed. 2018).

46 With RCom deal terminated, Jio is ready to buy spectrum from open, Business Standard, January 2019 (August 5,

2020, 06:17 PM) https://www.business-standard.com/article/companies/with-rcom-deal-terminated-jio-is-ready-to-

buy-spectrum-from-open-market-119041900909_1.html

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talks over RJio selling its stake to foreign company to colourably bid in the process.47 In this

manner the promoter might have lost the entity but mange to retain the business within the

family.

X. Conclusion

It is commendable that the legislature was able come up with a ‘multiple layered broad criteria’48

for disqualification of applicant whoever have some connection with the insolvency of the

corporate debtor. At the same time, it should also be understood that those are the persons who

might have experience or familiarity in that field which is very crucial for revival of the debtor.

What is done is ‘done’ by the legislature. There can be no less restrictions put to catch the erring

promoters, now it is the responsibility of the judiciary to balance the revival of the corporate

debtor in one hand and protect the interests of creditors.

Creditors should work with RP for revival of the company, for they know that businesses aren’t

risk free. In spite of knowing the fact that business fail at some point, they should work for going

concern notwithstanding the ‘haircut’ they receive. It should also be understood that they should

not have a mentality of an enforcer of law. Any procedural lapse or technicalities which may

otherwise be meritorious should be given it due regard. Nonetheless, under the IBC regime

creditors imputed with enormous powers so that there is no scope for the applicants or promoters

to meddle with them.

Therefore, it should be understood that business is prone to risks and creditors are well aware of

this fact during investment. So, they should look for revival than recovery. This is possible only

if the promoters who have the experience, are allowed to intervene to some extent. The present

stringency it the IBC will hold good for now and it will definitely teach a lesson to errant

promoters, but at the same time in future if India is able to attain a more mature corporate

business regime apart from the promoter controlled, the version of genuine promoters should be

given due consideration.

47 Softbank investing in Jio as Mukesh Ambani deleverages business, The Economic Times, April 24, 2019 (August

6, 2020, 11:59 PM) https://economictimes.indiatimes.com/industry/telecom/telecom-news/softbank-investing-in-jio-

as-mukesh-ambani-deleverages-business/articleshow/69011732.cms 48 Supra note 22.

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The Good Samaritan Law: An Insight

Kshitij Kasi Viswanath1

ABSTRACT

This paper aims to understand the Good Samaritan Law in the context of Indian society by

deciphering the people's mentality and the legal changes and reliefs available to them. This

paper also aims at understanding how the idea of a “Good Samaritan” came into being and

what it actually means today. The Paper also breaks down the laws and legislation present

today to give a detailed analysis of what provisions and deterrents provided by the law in a

simplified and unabridged way. In light of the present scenario, the paper also takes into

consideration the lack of knowledge and awareness in the sphere of Sarmatianism and

analyses the relief available under the same, and emphasizes the rights which can be availed

by those who need the same to ensure justice and to prevent exploitation of the vulnerable.

The paper also proposes the juxtaposition of the contemporary Indian scenario and that of

Canada's nation to provide insight into global developments and get a broader perspective

behind the process of law-making in the field of Samaritan behaviour. Taking these

developments into consideration and thorough analysis, the paper also seeks to bring out

certain suggestions that can help make the law at hand better and more acceptable to be used

in the present situation to ensure the comprehensiveness of the laws are in benefit of all rather

than a few privileged individuals.


I. INTRODUCTION

"A Good Samaritan is a person who, in good faith, without expectation of payment

or reward and any duty of care or special relationship, voluntarily comes forward

to administer immediate assistance or emergency care to a person injured in an

accident, or crash, or emergency medical condition, or emergency situation2”

In the 21st century, Society has become self-centred and selfishness is strife with least regard to

life. In 2017 alone, a staggering 1.47 lakh people died on Indian roads, this can be compared to a

population of a fairly large town3. Most of these deaths could be prevented if immediate care was

provided and the victim was moved to a hospital within the 'Golden Hour' i.e., the first hour after

an accident within which the accident victim can be saved. Despite this, there is still a glimmer of

hope given by a few good people who stop to help those in peril in a bleak world. These are the

'Good Samaritans' of the World. However, the absence of a defined Good Samaritan Law was a

deterrent even to those who wished to help as they were subject to aggressive police questioning

and numerous court hearings, which is of a great nuisance.

However, after successful pressure movements, the country saw a change in the atmosphere

regarding this subject. Karnataka became the first state in India to pass the ‘Good Samaritan Bill’

in 2018, which was considered a landmark event regarding this subject. This saw a positive change

1 Kshitij Kasi Viswanath - Second Year B.B.A. LL.B. (Hons.) - NMIMS, Kirit P. Mehta School of Law, Mumbai. 2 Good Samaritans Law, SaveLife Foundation, https://savelifefoundation.org/gsl-microsite/ (last visited Jul 21, 2020). 3 Priya Kapoor, India way behind 2020 target, road accidents still kill over a lakh a year, The Times of India, October

4, 2018, https://timesofindia.indiatimes.com/india/india-way-off-road-safety-targets-for-2020-road-accidents-still-

kill-over-a-lakh-a-year/articleshow/65765549.cms (last visited Jul 21, 2020).

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in the judiciary attitude as the laws now moved from being machinery to being more people-centric

and effective.

II. RESEARCH OBJECTIVES:

Understanding the origins of Good Samaritan Law and its sources.

Understanding the provisions made in India with its benefits and shortcomings

Comparing laws in India to the ones in Canada to understand contemporary global

developments

III. HISTORY AND DEVELOPMENT OF GOOD SAMARITAN CONSCIENCE

a. Concept of Good Samaritan

The idea of a Good Samaritan revolves around the concept of ‘helping one in need without

demanding any reward’. The present term of a good Samaritan comes from the Gospel of Luke

where Jesus answers the question of who is a neighbour and who is to be loved by reciting a tale

of an injured traveller who had been robbed and deserted on the side of a street where neither a

priest nor a Levite (sons and daughters of Jacob) stopped to save him, but it was a Samarian man

who cared to do so by tending to the merchant with oil and wine along with paying for lodging at

an Inn4.

It is also important to know that a Samaritan during Abrahamic times was considered to one of a

lower class, unworthy of any title, love or affection and were the ones who lived in poverty at the

time. This shows that despite not having the means, the Samaritan was selfless in his actions and

went out of his way to look after the merchant with compassion and good conscience.

In its initial stages, the good Samaritan conscience was solely an allegory that people believed it

was their duty to ‘Love thy neighbour as thyself’.5

The idea of a good Samaritan was not restricted solely to Abrahamic religions such as Christianity

and Judaism but also can be seen in numerous Vedic religions as well where ideals like Karma

(whatever you do will eventually come back to you) play a big role in determining the attitude of

believers to fulfil good deeds and ensure they help all those in need.

However, as times changed, the world consumed itself in selfishness and consumerism. The ideals

of morals eroded, and every man looked out for himself, even if it meant the other perished. In a

world like this, it's abnormal for one not to see malice in every action. This led to tougher laws

and attitudes towards those who came forward to help as it was natural to believe there was

malicious intent hidden behind the gloves of care and love, so much so that ethics and morality

had to be codified.

b. History and Development of Good Samaritan Laws

Good Samaritan Laws are not novel to the modern age, rather they have been in existence for time

4 The Holy Bible: Luke 10:25-29. 5 The Holy Bible: Leviticus 19:18, Mark 12:31, Mark 12:33, Matthew 19:19, Romans 13:9, James 2:8.

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immemorial with a historical legacy to assist lasting thousands of years, spanning every

civilization. There have been recorded instances where Ancient Egyptian and Indian laws have

had provisions to punish those who fail to provide aid to those in need, but these laws died with

the ever-changing political situations of their respective ages. The 19th century can be considered

the renaissance of Good Samaritan laws with the above-mentioned provisions appearing in the

criminal codes of Russia in 1845, Tuscany in 1853, and Unified Italy in 1889 (The Zanardelli

Code) 6 to name a few. Only after World War II did the Good Samaritan Law take the form of

what it is today. It was at this period when most Civil Jurisdiction

c. The Story of The Good Samaritan Law in India

Keeping in mind the Morals of a Good Samaritan, the idea of a Good Samaritan law is in its infant

stage. However, Awareness rallies and pressure movements by organizations such as the

SaveLIFE foundation, The Union Surface Transport Ministry's Guidelines and Regulations

provided in 2015 along with legislations as seen in Karnataka have had a footing in terms of the

conceptualization of the law as policymakers took due cognizance of the requirement of such laws

in a country like India, having one of the highest rates of Accidents per capita in the world.

Although the laws and statutes have come through to be of great effectiveness, the formulation of

Good Samaritan Laws are still in a nascent stage as times change and so do circumstances.

IV. LAWS IN EXISTENCE IN INDIA

The legal mechanisms regarding Good Samaritans in India currently are very limited as it happens

to be a recent phenomenon. However, the developments are considered a landmark and progressive

in Indian legal history.

a. Key Legal issues with regards to Good Samaritans

Good Samaritans in India were largely faced with the hurdles of bureaucracy and procedures

required to be followed before provisions were made. For simply bringing a victim to a hospital,

a Samaritan was subject to hostile questioning by the police in light of being a suspect to the act7.

It was also a common statement that an accident patient would die signing forms and declarations

before being able to treated upon. The paperwork at hospitals for those who had an accident was

cumbersome and complicated, creating delays, compromising on the vital ‘Golden Hour’, which

might to lead to another avoidable death8.

Further, the Samaritan would be hassled with mandatorily attending court, which would often be

inconvenient to the Samaritan as it may not suit his/her busy schedule or may also affect those

who sustain a hand-to-mouth existence, working for daily wages. These legal and bureaucratic

challenges created a lapse in the safety system. A law that could bridge these gaps could potentially

avert numerous avoidable deaths.

6 John T Pardun, Good Samaritan Laws: A Global Perspective, Loyola of Los Angeles International and Comparative

Law Review (1998). 7 Sapna Sukrut Deo, Protection of good Samaritans: A study in the light of Supreme Court’s decision in save life

foundation case, 2 International Law Journal 12–13 (2016). 8 Id.

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The very base of a Good Samaritan Law in India can be said to be The Supreme Court Judgement

of SaveLIFE foundation v. The Union of India and another which “interalia, directs the Central

Government to issue necessary directions with regard to the protection of Good Samaritans until

appropriate legislation is made by the Union Legislature9". This landmark judgment that took place

on 29th October 2015 saw the Union Surface Transport ministry provide certain guidelines as

mentioned in the texts below:

The landmark judgment, SaveLIFE foundation vs. Union of India and another, broadly instructed

the government to refrain from treating genuine Good Samaritans with scorn and hostility but

provided more specific provisions as well, which are:

A bystander, an eyewitness or a Good Samaritan can leave immediately after admitting the

victim to the hospital without any questions being asked except for the eyewitness’ address.

The Good Samaritan would and should be compensated for his deed to encourage fellow

citizens to help those in need.

A Good Samaritan would be exempt from any Civil/Criminal Cases.

A Good Samaritan can maintain his/her anonymity while availing any emergency service

or the police.

The Good Samaritan is not obliged to fill his /her details or contact information on the

Medico Legal Case form at the Hospital at time of admitting the victim. Disciplinary action

would be taken against those officials who harass or force Good Samaritans to reveal their

identity.

The proceedings must take place on the lines of Section 284 of The Criminal Procedure

Code of 1974 or formally through an affidavit. All operating procedures must take place

within 30 days of which the notification is issued.

Questioning and all procedures can now use video conferencing to prevent harassment of

Good Samaritans.

Hospitals cannot hold a Good Samaritan back stating the reason for admission costs or any

other expenditure, except when the Samaritan happens to be a relative of the victim.

Any doctor who does not comply with the guidelines put across will be subject to action

according to the provisions of "professional misconduct" in chapter 7 and 8 of the Indian

Medical Council (Professional Conduct, Etiquette and Ethics) Regulation, 2002.

Hospitals must publish a charter in the regional language(s) (Languages of the Union),

English and Hindi, clarifying their policy towards Samaritains10.

b. Critical Analysis of the Judgement

This judgment showed a revolutionary shift in fellow countrymen and public officers' attitudes

from being scornful and apprehensive of the Samaritans to have a more welcoming attitude

towards them by encouraging them.

The guidelines of the judgment also address the fear of doctors, who often are wary of admitting

patients from accidents without proper police procedures due to the criminal intent that may ensue

the accident. The guidelines state that the doctors would not be liable to treat patients from

9 Savelife Foundation and another v.Union of India and Anr., WP (Civil) No. 235 of 2012. 10 Id.

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accidents but do punish doctors who delay procedures with the excuse of the procedure. This

essentially means that doctors cannot hold a Samaritan or an accident victim to mandatory

paperwork requirement in case of emergency cases

The guidelines also address the issue of live court attendance. This happens to be the largest reason

as to why people choose not to help those in peril as they believe it would disrupt their lives and

cause more inconvenience than benefit11. A notable example would be a man from Meghalaya

having to attend court sessions in Delhi. He was required to fly twice a year from Shillong to Delhi

just to attend to this matter, for helping an accident victim12. The video conference process has

greatly helped do away with this worry, which removes the biggest hurdle in the implementation

of the good Samaritan law.

However, the question of maintaining the anonymity of the Samaritan could create scope for

misuse as a person with the intent of grievously injuring a victim could get away using the clause

of anonymity in this particular instance. Another drawback would be that the judgment only laid

guidelines for states to follow, which has seen a lack of initiative from most states, making it only

a model law and not an implementable law.

So far, the law seems to be a reality on in Karnataka, Delhi and few other places. President

Ramnath Kovind Gave assent to the Karnataka Good Samaritan and Medical Professional

(Protection and Regulation during Emergency Situations) Bill, 2016 on September 30th 2018(The

Karnataka Legislature passed the bill on November 9th 2016). This was seen as the first big step

seen in the forum of Good Samaritan conscience in India.

c. Karnataka Good Samaritan and Medical Professional (Protection and Regulation

during Emergency Situations) Bill, 2016

The Karnataka Good Samaritan and Medical Professional (Protection and Regulation during

Emergency Situations) Bill, 2016 is more or less based on the guidelines put forth by The Union

Surface Transport Ministry as mentioned above, however, it provides greater detail in terms of

enforcement and actions that can/ are to be taken by authorities and it also elaborates on the rights

available to those in need. Following are some important points included in this particular law:

Protection of Good Samaritans from Civil liability:

A Good Samaritan, according to this law cannot be held liable if he tends to someone in an

emergency situation and in good faith with:

a) The consent of the person, whether implied or expressed,

b) If the person is in grave danger and is unable to provide consent, consent of guardian or kin

is required,

c) If no guardian is present, consent is not required.

11 Veena M Sriram, Gopalkrishna Gururaj & Adnan A Hyder, Public-private implementation of integrated emergency

response services: Case study of GVK Emergency Management and Research Institute in Karnataka, India, SURGERY

S63–S76 (2017). 12 President Gives Assent to India's first good Samaritan Bill of Karnataka, The Economic Times, September 30, 2018,

https://economictimes.indiatimes.com/news/politics-and-nation/president-gives-assent-to-indias-first-good-

samaritan-bill-of-karnataka/articleshow/66014328.cms (last visited Jul 21, 2020).

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d) No Mens Rea or wrongful act must be involved.

Under the following conditions, the Good Samaritan is immune from Civil and Criminal

consequences13.

Rights of a Good Samaritan:

a) The Samaritan can maintain anonymity and not reveal his/her identity; however, he/she can

voluntarily reveal the same.

b) He/she is not obliged to follow hospital procedures or fill up forms.

c) He/she is not required to pay for medical expenses of the injured.

d) The Good Samaritan cannot be compelled into police examination unless he/she agrees to be

an eyewitness to the accident14.

Protection of Medical Professionals:

a) The court may call upon the medical professional involved only when it deems it necessary

and in an unavoidable circumstance.

The Court must try to take such affidavits solely through video conferencing or telephonic

means in order to ensure convenience to the medical professional15

1. Procedure for police investigation:

In addition to and with respect to the provisions mentioned in Section 160 and 161 of The

Indian Penal Code, the police must:

1) Ensure the investigation of the eyewitness Good Samaritan must take place in the time and

form of the Good Samaritans convenience.

2) All statements made by the Good Samaritan in a police station investigation must be taken

down in writing.

3) The police officer must sign an affidavit in order to ensure all investigation processes are

completed in a single round of investigation

Failing to follow these would lead to implications against the In-Charge police officer.

In addition to these provisions, the Government of Karnataka called for setting up a ´Good

Samaritan Fund' to provide rewards and compensation to those who acted as Good Samaritans

to encourage good citizens to do good acts.

Moreover, through the law, the government aims to spread awareness about the legislation

through drives, campaigns, etc.

Finally, the law states offences regarding non-compliance by various agents involved in

ensuring a Good Samaritan as well as the injured. For example, Police officers and hospitals16

Critical analysis of the Law

The Bill laid down by the Karnataka Legislature is a tuned version of the SaveLife Foundation

Judgement, focusing on certain aspects that were otherwise grey. The Bill speaks about the rights

13 Karnataka Good Samaritan and Medical Professional (Protection and Regulation during Emergency Situations)

Bill, 2016, § 3-5. 14 Id. 15 Id. 16 Id.

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and duties of a Good Samaritan to be exempt from civil liability, explaining the concepts of

consent, mens rea, and who can provide consent. The bill also does not oblige the Samaritan to

fill forms or pay fees, streamlining the process. The bill also makes it easier for Samaritans and

medical professionals as the law mandates only telephonic or video conferencing for affidavits

and testimonies. This does not disrupt the lives of those unable to make it to courts.

Perhaps the most intriguing approach applied by the Karnataka Legislation would be to

incentivize the help of those affected by providing rewards through the Good Samaritan Fund,

which would also create a push in the campaign of awareness. Thus, we can safely say that the

legislation in Karnataka's state is a model legislation for every other jurisdiction.

V. PRESENT SITUATION IN INDIA

The Good Samaritan Law in India may have made headway in obtaining legal rights, but the reality

is far from expectation; taking videos and photos of a scene is still a common sight. To add to this,

there are no fixed laws at the central level to protect Good Samaritans' rights. According to a

national study regarding the Impact of Good Samaritan Law, 84% of Indians are unaware about

the existence of a Good Samaritan Law, 59% of Good Samaritans were detained despite the

provisions in place17. However, the scenario isn’t all grave. According to the Study on

Impediments to Bystander Care in India conducted by SaveLIFE Foundation in 2013 in the cities

of Delhi, Hyderabad, Kanpur, Ludhiana, Mumbai, Indore and Kolkata, 88% of the respondents

said the country required a Good Samaritan Law and the willingness to help those affected by road

accidents increased to 88% from 26% in the 2013 survey18.

According to personal observations, the knowledge about this topic's laws is better understood in

urban and semi urban areas due to awareness programs and higher rates of accidents. Yet,

numerous accidents occur on highways (Indian highways are considered one of the most dangerous

in the world), which often lie in rural areas, thus leading to lack of response among most of those

who reside in India.

Yet, there is scope for a huge improvement in Indian society. Considering the topic of road safety,

it is essential to understand that Laws are not the way out, but it is only instilled civic sense and

public planning that can ensure roads are safe and secure. In that note, we can observe that Indian

drivers barely follow traffic discipline and violations like wrong side driving and signal jumping

are rampant on roads, giving scope for a higher number of accidents. The attitude of the

government that highways are only to move from point 'A' to 'B' fails to consider that a road or

highway does not have the sole purpose of connectivity but is a lifeline to trade, commerce and

industry along it, making infrastructure come along the sides as well. However, illegal hawking

and other similar phenomenon leads to congestion along the road which ultimately leads to

increase in the scope for accidents, thus lack of infrastructural planning is also a grave situation

India is facing today.

17 SaveLIFE Foundation, Study on Impediments to Bystander Care in India, pg.16 (2016). 18 Adam Withnall, Good Samaritans' are still being arrested for helping accident victims in India, The Independent,

November 27, 2018, https://www.independent.co.uk/news/world/asia/india-traffic-accidents-good-samaritans-help-

arrested-harassed-police-a8654096.html (last visited Jul 21, 2020).

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http://www.independent.co.uk/news/world/asia/india-traffic-accidents-good-samaritans-help-

http://www.independent.co.uk/news/world/asia/india-traffic-accidents-good-samaritans-help-



With regard to road safety, it can be said that the lack of modern traffic policing is also a huge

player in the increase in road accidents. It's not uncommon to see cars whizz past city roads at 90

Km/hr when the speed limit stands at 40 Km/hr. Considering these conditions in cities with people

crossings streets constantly, it's not a surprise we have one of the world's most dangerous roads.

Yet, on the bright side, the new amendments in the Motor Vehicle Act seen in 2019 are a strong

deterrent to those who wish to indulge in acts of traffic disobedience, with fines of a whopping Rs.

10000 being slapped on crimes such as Wrong parking19.

The governments have also increased the number of ‘Naka Bandhis' after 11 pm so as to ensure

the menace of drink and driving is curbed. However, despite all of these steps, India is not in a

position to boast safe roads or good, aware citizens.

VI. A COMPARATIVE STUDY WITH CANADA:

i. Good Samaritan Law in Canada

The subject of Good Samaritan Law in Canada varies from State to State, with Ontario having its

own Good Samaritan Law under the Good Samaritan Act, 2001 which “despite the provisions of

common law, a person who voluntarily and without reasonable expectation of compensation or

reward provides aid to those in need is not liable for damages that result from the person’s

negligence in acting or failing to act while providing the services, unless it is established that the

damages were caused by the gross negligence of the person20” The law in Canada also defines that

all individuals, as well as 'Medical Professionals' who provide first aid to those in need are 'Good

Samaritans' and reasonable compensation must be provided to them for the expenses incurred by

them in the process. This does not hurt the Good Samaritan pockets, which incentivizes the

Samaritan to help those in need.

The entire Good Samaritan Act by the Government of Ontario consists of 4 articles. In the Province

of Montreal, there is no codified Good Samaritan law per say, but there lies a General Duty to

Respond within every Citizen as mentioned in the ‘Quebec Charter of Human Rights and

Freedoms21’. In recent times, Canada is plagued with the issue of drug overdoses from illicit

opioids such as heroin and illicit fentanyl. About 60% of these illicit drugs users are between the

age of 15 and 2422. If the effects of the overdose are not treated immediately, it could prove fatal

to the victim. Canadian Citizens were reluctant to help cases of drug overdoses, fearing legal action

and questioning. To address this matter and to ensure swift aid to those who face an overdose, the

Canadian Government, with Royal Assent, passed the Good Samaritan Drug Overdose Act, 2017,

which amended the existing Controlled Drugs and Substances Act. This Act considers drug

overdose as an illness that requires care rather than a crime. This ensures that the ones who suffered

an overdose do not face punitive actions23. Further, this Act exempts the arrest of victims who

simply possess a controlled substance or their pre-trial or probation arrangements and sentences

19 New Motor Vehicle Act: Know all about traffic offenses and fines, The Times of India, September 13, 2019,

https://timesofindia.indiatimes.com/business/faqs/miscellaneous/new-motor-vehicle-act-know-all-about-traffic-

offences-and-fines/articleshow/71112011.cms (last visited Jul 22, 2020). 20 Good Samaritan Act, 2001§ 2(1). 21 Quebec Charter of Human Rights and Freedoms, 1975. 22 Substance Abuse in Canada: Youth in Focus, Canadian Centre for Substance Abuse, September 16, 2007. 23 Good Samaritan Drug Overdose Act, 2017 § 4.1 (1).

214



while calling 911 for themselves or for anyone else24. This clears way for people to help others

who face an overdose without having a stigma that they would be associated or charged with the

possession of drugs and related substances.

Creating a newer and separate law for drug overdoses in Canada highlights the gravity of the issue

and shows a concerted effort by the government to take the necessary action by mobilizing its

citizen to fight a larger battle by demystifying the stigma revolving around drugs.

ii. A Comparison with India

In my observation, the laws in basic structure in both India and Canada are congruent, however,

the distinguishing factors in the law are the driving social force and auxiliary provisions created

for encouraging citizens to become good Samaritans.

Firstly, the attitude of people must be considered in both countries. In Canada, a country with a

population 30 million, the value for life supersedes every other need, and people here are less self-

centred and take efforts to help those in need. On the contrary, India has a population of 1.3 Billion

and human life is so common that people do not value it the same way as they do in the Western

World.

This attitude has also played an important role in shaping the laws of the respective countries. In

Canada, citizens are well informed about the prevalent laws and have faith in the system and its

provisions and a sense of duty to one in need is instilled within them, thus they go out of the way

in order to help those in need without expecting any reward in return. This attitude has played a

role in creating a commonly understood uncodified rule amongst Canadians, thus reducing the part

that needs to be codified, as seen in Montreal. However, in India, the attitude of the people sways

in a different direction. Due to lack of legislation, earlier Samaritans were subject to harassment

by the police and other authorities, creating an image of fear among citizens who did not wish to

fall into the judicial system's never-ending maze.

It is also to be observed that anonymity isn't a clause in Canada. It is essential to understand the

Good Samaritan's position in a crime scene to check criminal intent. Thus, in order to clear these

misconceptions and to promote a positive and healthy mindset regarding the Good Samaritan

Conscience among people, The Law in India included provisions for a 'Good Samaritan Fund' as

well as articles calling for awareness camps and drives to educate the masses about the new

provisions by educating, encouraging and incentivizing them to do the same.

VII. SUGGESTIONS:

After considering all the points discussed with regard to The Good Samaritan Law in India, we

must understand that the law is just a step in a marathon towards successful implementation. In

this light, I personally suggest a '2A' strategy i.e., Awareness and Attitude Change.

24 Good Samaritan Drug Overdose Act, 2017 § 4.1 (3), 4.1 (3), 4.1 (5).

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Awareness in India is one of the greatest hurdles that come in the way of successful

implementation25. Having a law is of no use if the law is simply on paper and not used practically,

and thus the government must strive in the direction of removing ignorance of law through

education camps, awareness drives and most importantly, including these provisions in syllabi of

school children to ensure there is awareness at a grassroots level itself.

Awareness must not be confined to civilians but must also include the ones in uniform such as

Doctors and Policemen who are respondents in this situation. These groups must be aware of the

law so as to prevent unnecessary harassment of Good Samaritans and ensure co-operation over

culpability by protecting the right of innocent citizens. Another step could be to include the good

Samaritan law provisions in the prescribed syllabus for a drivers' licence test by the respective

Regional Transport Offices (RTOs). If this is implemented, every driver on the road would be

exposed and aware of this law to a basic extent as it is mandatory to learn about the law, failing

which a licence would not be issued. Educating children from the middle school level itself through

interactive subjects such as moral values would help the younger generation be aware of the laws

and its provisions in greater detail as it is a proven theory that interactive teaching methods such

as using digital boards and activities at a young age helps in better retention of information and

knowledge, rather than imparting such knowledge at a later stage26. This keeps children informed

and encourages the pupils to imbibe the morals and joys of being a Good Samaritan.

The attitude of the people must be taken into consideration as well. To put it in perspective, people

must move from video graphing accident victims to actually helping them reach a hospital within

the 'Golden Hour'. However, the law must develop with caution as there is a huge scope for misuse.

There is a possibility that criminals or perpetrators may get away with crimes disguised as Good

Samaritans as anonymity can be maintained. Thus, the government must formulate policies to

ensure that Good Samaritans are not harassed and check for criminal intent.

Lastly, ignorance to those in need is no justice in itself and it must, by law, be made a duty that

bystanders are obliged to help those in need without the fantasy of a reward.

VIII. CONCLUSIONS:

After understanding the discussions about The Good Samaritan Law in India, we can conclude by

stating the following points:

The Good Samaritan Law lies not only in the Books of Law, but also in the attitude,

morality and awareness of people to do the right thing at the right time.

The Good Samaritan conscience is gradually moving from culpability to co-operation in

the eyes of Indian Law as Good Samaritans get legal protection from harassment by

authorities.

The Indian Law regarding Good Samaritans is one that can be considered progressive as it

focuses on inclusivity and contemporary issues.

25 Durgesh Nandan Jha, 92% in Bengaluru not aware of Good Samaritan law, The Times of India, November 27, 2018,

https://timesofindia.indiatimes.com/city/bengaluru/92-in-bengaluru-not-aware-of-good-samaritan-

law/articleshow/66819737.cms.; 84 per cent people unaware of Good Samaritan law, do you know what it is?, INDIAN

EXPRESS, February 8, 2019, https://www.newindianexpress.com/nation/2019/feb/08/84-per-cent-people-unaware-of-

good-samaritan-law-do-you-know-what-it-is-1936204.html.(Last Visited on Jul 21 2020). 26 Steve Kennewell & Alex Morgan, Student teachers’ experiences and attitudes towards using interactive whiteboards

in the teaching and learning of young children, pg. 65–69 (2003).

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http://www.newindianexpress.com/nation/2019/feb/08/84-per-cent-people-unaware-of-






The Indian stance regarding Good Samaritan Laws can now be compared at a global level.

The evolution of Good Samaritan Laws is directly linked with social and psychological

aspects as the law only protects people from harassment and it’s the people who step in to

actually make a change.

The early exposure of children to the Good Samaritan law's morals and provisions help in

bolstering awareness not only during the short run but also the long run, where informed youth

pass it to the next generation. Using interactive methods to do so would benefit both the

government and students as it helps with retention.

217



The Offence Relating to Outraging Modesty of Women- An Evaluation

Ritika Sharma1

Abstract

The notion of offences against women is increasing exponentially. This has, indeed, taken a

toll on the lives of women leading to mental and physical agony. The concept of the outraging

modesty of women is been described clearly in Section 354 of the Indian Penal Code, 1860.

The Section 355 deals with use of assault or criminal force with the intention to dishonour

person without any grave provocation. Moreover, the section 509 provides for the offence of

outraging modesty as well. It is a well-established fact that the aspects of assault and criminal

force require a deep explanation. The idea that these offences have been uprising in the society

is hard to deny. However, it has also been observed that the misuse of these specific and crucial

laws is rampant. With the amendments in the code, further provisions are seen to be added.

This paper attempts to analyse the legal understanding of the Section 354 and Section 509

along with the analysis of the present scenario and the ongoing misuse of the provisions. This

paper also tries to analyse interpretation made by Courts in various cases and suggests certain

reforms in order to improve the provisions with the changing times with specific relevance to

the in-depth meaning of assault, criminal force and other important terms with that regard.

The clear distinction among the different sexual offences pertaining to women has explicitly

discussed in order to seek clarity.


I. Introduction

“If society trivializes modesty, violence against women would result”- Lalitha Dhar

Pariha

With the advent of Indian Penal Code in 1860, the codification of enumerable offences took place.

The offence of outraging the modesty of woman got its definition under Section 354 of the code.

Also, the Section 509 provided an elaborative, yet, comprehensive definition of the offence leading

to a co-joint reading of the two sections in almost all of the cases. It is pertinent to note that the

term ‘modesty’ lacks an appropriate definition itself and hence has not been described anywhere

explicitly in the entire code. Thus, the Supreme Court finally defined the meaning of the term

modesty as the “essence of a woman’s modesty is her sex itself”. The offence under Section 3542

has been made punishable with fine or with imprisonment which is not less than that of one year

and may extend to five years3as well and is of cognizable and non-bailable nature whereas under

Section 509,4 the punishment is fine or three years of imprisonment and the offence is of

cognizable, bailable and compoundable nature. In general sense, outraging modesty of a woman

is known as molestation. Moreover, the Section 354A, 354B, 354C and 354D provides for the

offences of sexual harassment, assault on woman with intention to disrobe, voyeurism and stalking

respectively.5 In order to gauge deeper into the matter, it is important to understand the in-depth

1 Ritika Sharma - Third Year B.A. LL.B. (Hons.) - Vivekananda Institute of Professional Studies, GGSIPU, Delhi.

2 Indian Penal Code 1960, § 354. 3 Ibid. 4 Supra 1. 5 Jain Nirali, Outraging the modesty of a woman, 5 International Journal of Law 57, (2019).

218



phenomenon of the offence as there has been major recent developments leading to the evolution

of the entire offence altogether. In order create a clear perspective, there comes the need to

understand the difference between the offence of outraging modesty of women and other sexual

offences committed against women. Also, the theories of victimology have a distinct reference to

the offence and the view of cross examination being undertaken in such offences.

II. The Connotations Of The Terms Used

The terms force, assault and criminal force have been explicitly defined in the distinct Sections of

Indian Penal Code. The Section 349 provides the definition of force which states that if the motion

is caused, or there is any change of motion or cessation of the motion which could affect the sense

of other person’s feeling it becomes the force when cumulatively understood in three other ways

as described. Force is the contemplation of the presence of both the persons at once which means

the presence of the person who has used it and the presence of the other person towards whom it

is being used or directed.6

The concept of criminal force is being defined in Section 350 of Indian Penal Code, wherein, the

definition of criminal force has been provided. According to this Section, a force becomes criminal

when there is an intentional use of force or if there is any knowledge of the same. In this Section,

the force of criminal nature can only be applied to a person and not to any inanimate object as a

crime is always against a human being. The criminal force is known as battery in English law. In

the Section 351 of Indian Penal Code, the definition of assault has been clearly defined. However,

within the definition of assault, not every threat in the absence of physical violence amounts to

assault because there should be a means to carry that threat into the direct effect.7 Also, this is

applied to the offence of outraging modesty of women, although with a little expansion and

extension of the aspects and the description of the offence under Section 354 of Indian Penal Code,

the inclusion of acts done without the use of any physical force such as stalking are being covered

within the ambit of the offence.8The threat is an assault.9Moreover, making any sort of gestures or

any preparation can amount to the very use of criminal force to assault.10However, mere words do

not amount to any assault. However, if any word or certain words are being used in order threaten

the person with an immediate intention to use criminal force would directly hold the person liable

for this particular offence.11

The punishment of the offence of assault or criminal force which is not of the nature of grave and

sudden provocation has been provided in Section 352 of Indian Penal Code and the punishment

for assault or the use of criminal force is being provided under this section when there are no

aggravating circumstances.12 The instance of any individual pointing a loaded pistol at another

person makes that individual accused liable under Section 352 of Indian Penal Code and not under

the Section 307.13Thus, in order to have a vivid understanding and clarity of the offence of

6 Bihari Lal v. Lalita Prasad, (1934) Lah 786, 789. 7 Stephens v. Myers, AIR 1830 SC 349. 8 Ibid. 9 Rupabati v. Shyama, (1979) CrLJ 1275. 10 Indian Penal Code, 1860, § 351, Illustration (a). 11 A.C. Cama v. H.F. Morgan, (1864) 1 BHC 205. 12 Nagar Prasad v. State of U.P., AIR 1998 CrLJ 1580. 13 Swadesh Mahato v. State, AIR 1979 CrLJ 1275.

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outraging modesty of women it is extremely important to understand these crucial terms in detail

as there has been an intense functionality.

III. An Elaborate Discussion

The issue of offence relating to modesty of woman cannot be treated as trivial or a petty

offence.14As it has been clearly mentioned in the Section 354 of Indian Penal Code, wherein, it

has been provided that whoever assaults or uses the criminal force to any woman with an intention

or knowledge that he will likely to thereby outrage the modesty of a woman will be held liable to

the punishment as has been prescribed and defined in the section.15

The essential and the differentiated element of the section is use of assault or criminal force, thus,

where the bottom pants of the woman were being pull down,16 the act was termed as outraging the

modesty. The ultimate test for establishment of the fact that whether the woman’s modesty has

been outraged or not is that the very action of the offender should be such that it may be perceived

as one which is capable of shocking the entire sense of decency of a particular woman or women

at large.17 The judgment of State of Punjab v. Major Singh,18has been proven to be a landmark one

where the question arose that whether the modesty of a seven and a half months’ child being

outraged or not, it was held that the word ‘modesty’ has the meaning of the accepted notions of

womanly modesty and not only the reactions and other notions pertaining to the woman against

whom the offence has been committed. This is known to be the major case as far as the question

of modesty is concerned.

In Major Lachhman Singh v. The State,19the term ‘modesty’ pertaining to the woman has been

considered and was being discussed. As far as the offence under Section 354 of Indian Penal Code

was being considered wherein it was being explicitly held that all the allegations were not

sufficient to fulfil the necessary and essential ingredient of the offence.20 However, the clear

definition and description of the word modesty was given in the judgment of Ramkripal Singh v.

State of Madhya Pradesh.21 The Section 509 on the other hand makes the intention to insult the

modesty of the woman as an essential and the most important ingredient of the offence as it has

been mentioned that whoever intends to insult the modesty of any woman, utter any word, makes

any sound, or gesture or exhibits any object intending that such word or sound will be heard or

intrudes the privacy of the woman shall be punishable according to the prescribed term.22 In the

landmark case of Swapna Barman v. Subir Das,23it was being held that under this particular

provision of Section 509 the term ‘modesty’ does not only lead to the contemplation of sexual

relationship of an indecent character but also includes indecency.24 Therefore, it is essential to

14 Vishaka and others v. State of Rajasthan and others, AIR 1997 SC 3011. 15 Ratanlal and Dhirajlal, The Indian Penal Code (35th ed., Lexis Nexis, 2017). 16 State of M.P. v. Surendra Nath, 2006 (1) MPHT 215. 17 Supra 4. 18 State of Punjab v. Major Singh, AIR 1967 SC 63. 19 Major Lachhman Singh v. the State, AIR 1963 CriLJ 390. 20 Supra 14. 21 Ramkripal Singh v. State of Madhya Pradesh., AIR 2007 SC 370. 22 Ibid. 23 Swapna Barman v. Subir Das, AIR 2004 GLR 168. 24 Ibid.

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consider that any act which falls short of rape needs to be attributed as outraging modesty of the

woman. Furthermore, a woman can also be tried for the offence of outraging the modesty of any

woman as the codified sections themselves are gender neutral and does not make an individual of

any particular gender] an offender for the actions.25 Hence, both male and female can be prosecuted

for this offence.

IV. The Quest Of Outraging Modesty And Rape

The offence of outraging modesty of women and rape has a major distinction as to the facts and

the provisions which create the charge of either of the offences. Even, the offence of outraging

modesty of women is entirely different from attempt to commit rape. However, it is a fact that it

is a thin line difference. This sort of difference is actually invisible.

V. The Offence Of Rape

The definition of rape has been provided in the Section 375 of Indian Penal Code. The offence of

rape has been made out in Section 376 of Indian Penal Code, 1860. The description of the offence

of rape provides that whoever commits rape on any woman provided she is not the wife of that

man, and the man is not below twelve years, would be held liable to the imprisonment which may

extend to two years with fine or both. Moreover, in the sub-section (2) of the Section 376, it has

been provided that any person who commits rape while fulfilling the conditions of the clauses

provided in the sub-section would be liable to be punished with rigorous imprisonment for a term

as prescribed in the Section 376 which provides for the punishment in accordance to the definition

of the offence.

The infamous amendment was being brought about after the Nirbhaya case which was popularly

known as Nirbhaya Act, the enormous and stringent changes were being brought about in the

totality of circumstances. However, it has been seen that the 172nd report of Law Commission

recommended making the rape laws gender neutral considering the present scenario which has not

been implemented as of now and demand urgent execution.26

VI. The Distinction

There are stark differences between outraging modest and the offence of rape. In the case of

Tukaram Govind Yadav v. State of Maharashtra,27 it was being held that where the accused was

lying on the woman who was lying on the floor in suspicious circumstances and removed the

bottoms of that particular woman, the offence of rape under Section 376 of Indian Penal Code was

not being made out as there was no as such evidence of the penetration of penis according to the

facts of the case. The offence was made out under the Section 354 of Indian Penal Code, 1860 as

the medical evidence did not create the evidence of rape. In the case of Jeet Singh v. State,28

although there were enough considerable evidences that the victim was being disrobed by the

accused, it was held that the offence of outraging modesty of women was being made out and there

25 K.D. Gaur, Textbook on Indian Penal Code (6th ed., Universal Law Publishing, 2016). 26 Soibam Singh, Explained: The Laws on Rape and Sexual Crimes, The Hindu, (last accessed on July 21, 2020,

8:00a.m.), Available at: https://www.thehindu.com/news/national/what-are-the-laws-on-rape-and-sexual-

crimes/article30233033.ece 27 Tukaram Govind Yadav v. State of Maharashtra, 2011 CrLJ 1501 Bom. 28 Jeet Singh v. State, 2013 CrLJ (NOC).

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was no offence of rape because there was no evidence of the same. Hence, the conviction of the

Section 376 was being altered to Section 354 of IPC. However, in the case of State of Uttar Pradesh

v. Rajit Ram,29the Supreme Court overruled this particular judgment in which the conviction under

Section 376 was being altered by Section 354 of Indian Penal Code and thus sent the case back to

the trial court.

In the case of Jai Chand v. State,30 the accused forcibly pushed and laid the prosecutrix on the bed

and broke the string of her bottom, however, he did not make any attempt to undress himself at the

moment. Also, he did not grab her back again, once the girl pushed him away. It was thereby held

that since there is no evidence of rape according to the facts and circumstances which were narrated

in the case to the court, the offence which was made out was of outraging modesty of women under

the Section 354 of Indian Penal Code. However, in the case of Ram Mehar v. State of Haryana,31

wherein, the accused grabbed the prosecutrix and carried her up, later, pushed her down and tried

opening the bottom of the victim, it was held that the offence of rape was not made out since the

penetration of penis did not take place as she gave blow through the sickle. Also, the accused failed

to give the sample of blood with result it could be presumed that the innocence was highly doubtful.

VII. Developments Thereafter

There are innumerable modifications which are being brought about in this particular offence of

Indian Penal Code in order to make the provision stricter with the intention to curb the increasing

rate of criminal records of such offence and to avail the provision of safety, security and protection

to the woman at large. According to the Justice Verma Committee Report, which was being

submitted on January 23, 2013, the non-penetrative forms of sexual contact needed to be

considered as sexual assault and the punishment should be increased to five years under the Section

354 of Indian Penal Code. Also, it was being recommended that a quicker and speedy trial was the

need of an hour in the offences which are committed against women. The Committee was headed

by the then Chief Justice of India J.S. Verma and it was identified by the committee the root cause

of sexual offences is the failure of the governance. This particular report plays a considerably

crucial role in bringing about the major amendment of 2013. Considering the given

recommendations, the major amendment was brought about in the March 2013 through the

Criminal Law (Amendment) Act, 2013,32 because of which sporadic developments have took

place. The punishments were increased.

This amendment did not only bring reforms in the Indian Penal Code, 1860 but also in Indian

Evidence Act and Criminal Procedure Code, 1973 respectively. In addition to the same, new

sections are being added up in Indian Penal Code, 1860 which are: Section 354A (sexual

harassment), Section 354B (intention to disrobe a woman), Section 354C (voyeurism) and Section

354D (stalking) with separate punishments respectively. There have been major pronouncements

since then. In the recent judgment, Delhi High Court has ruled that showing middle finger to a

woman amounts to outraging her modesty thereby proving the laws to be more stringent as they

29 State of Uttar Pradesh v. Rajit Ram, 2011 (6) SCALE 477. 30 Jai Chand v. State, 1996 CriLJ 2039. 31 Ram Mehar v. State of Haryana, (2016) 2 AICLR 957. 32 Rituparna Bhattacharyya, Criminal Law (Amendment) Act, 2013: Will it ensure women’s safety in public spaces?

Space and Culture India, 2013.

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were earlier. However, the misuse and abuse of the provisions has become rampant. There have

been innumerable cases which are being filed and have been proven to be the false accusations. In

2019, in a particular judgment, Calcutta High court ruled that pushing accidently is not outraging

modesty of woman under the Section 354.33

VIII. Laws Of Sexual Harassment

The definition of sexual harassment has been explicitly provided under the Section 354A of IPC

and the offence is created in the same Section under sub section (2) and sub section (3). It has been

provided that any person who makes any physical contact or advances which involves sexual

overtures or demands any sexual favours or shows any pornographic content to a woman without

her consent as well as makes sexually coloured remarks becomes liable for the offence of sexual

harassment. However, under the leading case of Vishakha v. State of Rajasthan,34 the complete

guidelines were being laid down by the Hon’ble Supreme Court with regard to sexual harassment

at workplace and it was held that offence related to outraging modesty of women cannot be taken

as a trivial offence. The guidelines which were being laid down by the Supreme Court got statutory

recognition thereby making an enactment of Sexual Harassment of Women at

Workplace (Prevention, Prohibition and Redressal) Act, 2013.

This offence of sexual harassment has been, now, made a cognizable offence in criminal law;

hence, this also allows the withdrawal of complaints at workplaces which are usually followed by

a compromise and thus, it does not actually stand at the scrutiny in the court of law. Moreover, the

government is of the view that there is, in general, no such harm in providing women the alternative

of either settling the matter within the organization on their own in which the offence has taken

place or complaining to the police itself.35In the case of State of Himachal Pradesh v. Prem

Singh,36it was held that while reading the evidence of the prosecutor, the case of rape could not be

made out on the part of the defendant and hence he was not liable under the Section 376 of IPC

since there exist a thin line difference between the offence of rape and sexual harassment and both

should not be confused with each other. If a woman has clearly refused someone for the sexual

advances and she has been met with threats to harm her physically or her reputation is being

threatened to be harmed or the property, this creates the offence under Section 503 of IPC leading

to punishment of two years imprisonment or fine or both. If any individual morphs the pictures of

a woman and shares the same with the intention to harass her and defame her, it makes an offence

under Section 499 of Indian Penal Code with imprisonment if up to two years or fine or both. In

2019, a case of sexual harassment was being attended and decided by the in-house committee of

Supreme Court in which the then Chief Justice of India Ranjan Gogoi was alleged of sexual

harassment at workplace, it was held that there was no as such substance to the charges of sexual

harassment.

IX. Intent to Disrobe a Woman

33 Editor, Pushing accidently is not outraging modesty of woman under Section 354 of IPC, SCC Online, (last accessed

on 21 July, 2020, 8:11 a.m.), Available at: https://www.scconline.com/blog/post/2014/07/19/pushing-accidently-is-

not-outraging-modesty-of-woman-under-section-354-ipc/. 34 Vishakha v. State of Rajasthan, AIR 1997 SC 3011. 35 P.S. A Pillai, Criminal Law (13th ed., LexisNexis, 2017). 36 State of Himachal Pradesh v. Prem Singh, AIR 2009 SC 1010.

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The offence of intent to disrobe a woman is being made out in the Section 354B of IPC wherein it

has been stated that if any man assaults or uses the criminal force to any woman or makes the

abetment of such act with an intention of disrobing the woman or with intention to compel her to

become naked is liable for the punishment of imprisonment for three years or fine or both. The

intention of the legislature was to make such act an offence as it thinks in its wisdom that such

instances and acts of stripping a woman off her clothes is utterly disgraceful, embarrassing and are

of mortifying position. Moreover, such cases do not require any direct and physical touch. This

offence is of cognizable nature, wherein, the police officer is bound to register the offence. It is

not a bailable offence.

Voyeurism

The offence of voyeurism has been made out in Section 354C of IPC, wherein, if a man watches

a woman or captures any private act or disseminates any such image becomes liable under two

subsequent convictions. The explanations under this section provides for the clear definition of

private act as well as states that if a woman consents to capture such images or any act but does

not consents the dissemination of the same to the third person, such act, if done, would make the

man liable under this section. After the case of Mukesh & Anr. v. State for NCT Delhi,37which is

popularly known as Nirbhaya Case, the new provision was being made. The Justice Verma

Committee has a major role to play when the question of voyeurism arises. It was being

recommended that the punishment for the offence of voyeurism must be up to seven years of

imprisonment. However, during the deliberation which went while the Committee was being

incorporated, it was found out that the offences of stalking, voyeurism, eve teasing were perceived

to be the minor offences and they did not really have serious punishments leading to the digression

in the society. After the amendment, this offence ceased to be the gender-neutral offence. It was

keenly noted that such offences created a fear in the mind of girls, depriving them not only the

freedom guaranteed under Constitution but also the Right of Education for that matter. As it was

not possible to establish any machinery of prosecution but certain preventive measures were being

created in order to prevent it from escalating into major aberrations.

Stalking

The offence of stalking is being provided in the Section 354D of Indian Penal Code.38 Under this

concept, the offence states that if a man attempts to follow or tries to make a contact with the

woman, even after the fact that she has given a clear indication of no interest, that particular man

becomes liable of the offence. It also includes the monitoring the use of woman of the internet or

any other electronic platform. The punishment as prescribed is in two convictions, that is, in the

first conviction the accused is punished for a term which can extend to three years and in

subsequent conviction the imprisonment of a term which may extend to five years is provided. For

the advent of this particular offence, the Justice Verma Committee has played a major role thereby

leading to the Criminal Law Amendment, 2013 and bringing about this particular offence in

existence.

37 Mukesh & anr. v. State for NCT Delhi, AIR 2017 SC 1. 38 Indian Penal Code, 1860.

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Acid Attack

The Section 326 of Indian Penal Code deals with the offence of acid attack. The Eighteenth Law

Commission of India marks the introduction two new Sections namely Section 326A and Section

326B in the Indian Penal Code. Moreover, the Section 114B in the Evidence Act,39 was being

incorporated which provides for the presumption in the cases of acid attack. The Section 326A

defines the term acid and lays down the punishment for throwing the same which is ten years of

imprisonment or fine or both. The infamous case of Laxmi v. Union of India,40provides for the

decision of the Supreme Court, wherein, it issued the direction for the regulation of acid to the

State as well as Union Territories. This has been the most famous case of acid case. In the case of

Ravinder Singh v. State of Haryana,41 the acid was being poured by the husband upon his wife just

because she denied divorcing him. The accused was charged under Section 302 of IPC; however,

he was not provided life imprisonment though the victim died. In 2019, a plea was filed by

Advocate Anuja Kapur who was accompanied by a male acid attack survivor, wherein, she sought

directions to State and the Central governments for the compliance to the existing guidelines and

the policies for the rehabilitation and the compensation of the survivors of acid attack. This petition

came before Chief Justice Ranjan Gogoi at that very point of time.

IX. The Analysis of The Present Scenario

The present scenario pertaining to the legal stance of the said provision has seen to be mostly used

fraudulently, however, the provisions have been proven to be highly woman centric in order to

protect women from such grievous offences. The onus lies on the man to prove that he is innocent.

Moreover, in such cases, if a woman wants to file the FIR against a male, the police has to register

it, even if it is mala fide, the police official cannot deny registering the same as it was being held

in Lalita Kumari v. Government of U.P.,42and in Amit Kumar v. Joginder Singh,43 the SHO was

being suspended and it was held that there are mandatory directions to the police departments of

all the states that the police officials are duty bound to register the FIR in respect of the complaint

which discloses cognizable offence and denial to register the same could lead to stringent action.

In contradiction to the misuse and abuse of the law by the women, it has been noticed that in certain

incidents, huge of number of cases of outraging modesty remain unreported and women tend to

suffer throughout their lifetime. The position tends to stand in extreme degrees of different

situations and there is the need to bring out the amendments that not only protect women but also

aims at preventing the misuse of the same. The modifications should be such that provisions strike

equilibrium. It should be put across that all the offences pertaining to outraging modesty must be

made non bailable and the authenticity of the charges made by women at the time of reporting the

offence should be checked well in advance in order to prevent the misuse.

39 The Indian Evidence Act, 1872. 40 Laxmi v. Union of India, AIR 2014 SC 427. 41 Ravinder Singh v. State of Haryana, AIR 1975 SC 856. 42 Lalita Kumari v. Government of U.P., AIR 2013 SC 243. 43 Amit Kumar v. Joginder Singh, CRM-M-41761-2015 (O & M),2019.

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X. The Ongoing Misuse- An Alarming Situation for Men in India

The infamous KPS Gill who was being convicted under Section 354 for slapping the posterior of

Rupan Deol at the instance of a particular party, the judges made strong statement while upholding

his conviction that it was impossible to believe that he had no intention to outrage the modesty of

the victim as it was extremely difficult to compare the act of slapping the posterior of the woman

to shoving her in a course of random argument or a quarrel and thus it becomes the takes a great

judicial latitude to even compare the same.44 In order to understand the common misuse and have

a clear understanding of what does not constitute the outraging modesty of woman, it is important

to note that mere knowledge that the modesty of a woman could likely be outraged is completely

sufficient to constitute the offence without any calculated or conscious intention of outraging her

modesty.

The Section 354 applies to each and every sexual act which is committed or has been intended

against the particular woman, thereby actually falling short of penetration.45 However, it has been

observed that, time and again, there has been a lack of actual assessment of the entire issue as

whole in its great depth and it is this fallacy of not being able to carefully consider the intent of the

law and measure the weight of a complaint of a particular person which affect the courts throughout

the board. In addition to the same, it has also been observed that mere lack of protest on the part

of woman against the offence being committed should not be termed as alibi for the offender.

The leading judgment was being given by the Hon’ble Supreme Court in the case of Vidyadharan

v. State of Kerala,46wherein, the act fell under the aggravated form of the offence which was

needed to be punishable under Section 354 of Indian Penal Code, thus, it was held that no separate

sentences were being awarded for the offence of outraging modesty. Moreover, the appeal before

the High Court of Kerala was brought about and this too did not bring any relief to the appellant.

However, the Supreme Court, for the offence under the Section 354 of Indian Penal Code and the

Section 448 of Indian Penal Code, decided to sentence the accused for the custodial sentence,

thereby, according to the records it was revealed that it was of approximately three months and

should accordingly meet the ends of justice taking into consideration the background facts and

certain features which were special to the case.

In the matter of Rupan Deol Bajaj v. Kanwar Pal Singh Gill,47 where, the accused who was

popularly known as super cop named K.P.S. Gill was being convicted for slapping the posterior

of the petitioner, R.D. Bajaj, accurately highlights the problematic and the remarkable nature of

male chauvinism often meted out towards women in the society.48

On one hand, there are the cases of women being molested while on the other hand there is end

number of cases which shows that such provisions are getting misused by them to a large extent.

In the matter of Arnesh Kumar v. State of Bihar &Anr,49the Supreme Court ruled that accused that

44 R.K. Tejas Motwani, Analysis of Section 354/355 of Indian Penal Code, SEMANTIC SCHOLAR, ( last accessed

on July 21, 2020, 8:22 a.m.), Available at: https://www.semanticscholar.org/paper/Analysis-of-Section-354%2F355-

of-Indian-Penal-Code-Motwani/cfeb7f7d78dc3656dcaaedb269474c335b8d4e90. 45 Supra 24. 46 Vidyadharan v. State of Kerala, AIR 2004 SC 215. 47 Rupan Deol Bajaj v. Kanwar Pal Singh Gill, AIR 1996 SC 309. 48 Supra 34. 49 Arnesh Kumar v. State of Bihar & Anr, AIR 2014 SC 273.

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were charged under the law regarding anti dowry could not be arrested anymore automatically

before an ultimate probe has taken place in the matter. Thus, this particular action was taken in

order to keep a strong and powerful check upon women who were constantly filing the false and

inappropriate cases against their husbands and against the relatives of husband and right after the

same, this specific provision came into applicability upon the Section 354 of Indian Penal Code.50

XI. Cross- Examination During Trials- The Incidents Of Leading Questions

The aspect of cross examination and the leading questions during the trials of such offences has

been the most crucial one. It is often observed that of victims of such offences often suffer at the

cost of the perpetrators. Moreover, the cross examination is often known as the art and not

everyone can master it. The leading questions often become a major part and parcel of the entire

process of the trial. These questions are usually framed considering the response it tends to evoke

from the individual that is being questioned. The definition of leading questions has been explicitly

provided in the Section 141 of Indian Evidence Act and they are nothing but any such questions

which often brings out the desired answer from the witness being cross examined and such

questions are asked both in evidence in chief as well as in cross examination.

In the leading case of Mohinder Singh v. State,51 it was held that the judge of the trial is duty

bound to not allow the questioning which are of scandalous nature as the purpose of the cross

examination of a victim of rape or of molestation is not to humiliate and cause discomfort but the

questions should simply aim at bringing out the truth and should not be directed towards causing

embarrassment and uneasiness.

Also, the Section 152 forbids any questions that are intended insult or annoy or are of offensive

nature. In the case of Fatima Riswana v. State,52 it was held that when the evidence of a particular

offence committed is of a nature that could cause embarrassment and discomfort not only to the

presiding officer but also to the woman who is witness or accused or any decent person, the

presiding officer is deemed to make certain arrangements in the procedure.

XII. Conclusive Remark

The offence pertaining to the outraging of modesty of women has gone through the process of

immense evolution. According to the statistics of National Crime Record Bureau, there have been

8685 and 7305 cases which have been registered under insult to the modesty of women pertaining

to the section 509 of Indian Penal Code during 2015 and 2016 respectively. It has been explicitly

noticed that with the major amendment in the entire criminal law in 2013, the misuse of the

provisions is also been uprising. In order to eliminate the evil from the society, there is an urgent

need to bring a stop at the misuse of the provisions at first and ensure the safety of both men who

have been often falsely accused and the women who are often abused. Moreover, the distinction

between the concepts of rape and outraging modesty of women has to be made out, since, there

always exist a dichotomy. Since, the offence of rape and outraging modesty are the offences which

does not have the factor of distinction because of the close similarities between the facts and the

50 Ibid. 51 Mohinder Singh v. State, (2007) 1 SCR 1185. 52 Fatima Riswana v. State, Appeal (Crl.) 61-62 of 2005.

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circumstances of the cases. In addition to this, after the major and the most revolutionary

amendment made in 2013, the laws and provisions for the offence of outraging modesty got

entirely changed and sexual harassment, intention to disrobe women, voyeurism, stalking and acid

attack were being added. It is pertinent to not that, since, the changes have been brought about in

order to create such offences of heinous and grave nature.

It has been keenly observed that the provisions of the amendment made are seen to flawed, right

from the very basic stage of framing of charge and arrest itself. However, the National Commission

for Women has been formulated for the redressal of certain specific issues pertaining to women.

Thus, in order to prevent the misuse of the provision and to ensure the safety and protection of

women, certain amendments in the law needs to be brought about such as stricter provisions should

be made if the laws are being misused at the instance of any woman and should be codified in a

separate statute as well as the recent amendment of Criminal Law (Amendment) Act, 2018 has

made the offence of rape of a girl below the age of 12 years punishable with death penalty and the

minimum punishment is of 20 years of imprisonment for the first time in the legal history. Also,

the provisions pertaining to the rape of a girl below 16 years have also been added along with the

increase of term of imprisonment for the offence of rape in general. Thus, it is necessary to

understand the gravity and the profundity of the matter at large.

228



Free Speech and Criminal Defamation: A New Approach

Mukul Kumar Choudhary1 And Varsha Singh2

Abstract

From the beginning of Indian democracy, extent of free speech and limitation imposed upon

it always remained pertinent questions. Many laws incorporated in colonial era were

questioned for restricting free speech in this modern democracy. Provision on Criminal

defamation also falls within similar category. Validity of this law has been questioned on many

occasions on ground of restricting free speech. Which failed. But recently Madras High court

gave a very transformative judgment on this provision. In this judgment the court tried to

restrict the use of criminal defamation as a weapon against free speech. The court pointed

towards the need of freedom of press. The court has also clarified upon the role of higher

judiciary as protector of right. All these aspects of the judgment have made it very

transformative. Which hold great implication for future courts and future judgments.

Therefore, in this paper we have tried to understand and analyse this judgment and its

transformative character. we have also tried to understand future implication of the

judgment. We have also pointed out that how this judgment will ensure greater press freedom

and a new free speech jurisprudence.


I. Introduction

“Though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field,

we do injuriously by licensing and prohibiting to misdoubt her strength. Let her and Falsehood

grapple; whoever knew Truth put to the worse, in a free and open encounter?”3

When John Mill argued that free exchange of ideas and expression was the only way to arrive at

truth4. what he meant was that, truth will always come out in public domain even though infinite

attempts were made by the society to supress it. Therefore, as a society our goal should always be

to provide free speech to people. Then only they can express themselves and bring the truth in

public domain. Therefore, any laws or regulation which restrict the freedom of speech and

expression must be reasonable in nature. It must not restrict the truth and tolerate free mobility of

idea. This principle of universality of truth is also the foundation of Indian legal system’s free

speech jurisprudence.

Based on this principle only on 5th of May, a single judge bench of Madras High court gave a

transformative judgment5 on criminal defamation and free speech. This judgment has interpreted

provision of criminal defamation6 in a method so artistic which has ensured the development of

1 Mukul Kumar Choudhary, Year IV, Chanakya National Law University, Patna. 2 Varsha Singh, Year IV, Amity Law School, Delhi. 3 Bennett Coleman v. Union of India, (1972) 2 S.C.C. 788, ¶ 157 (quote by John Milton, Areopagitica) 4 J.S Mill, On Liberty (Longman London, 1869). 5 Grievances Redressal Officer, Economic Times v. V.V. Minerals Pvt. Ltd., 2020 (3) M.L.J. (Crl.) 241. 6 Defamation. —Whoever, by words either spoken or intended to be read, or by signs or by visible representations,

makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe

that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to

defame that person.

Indian Penal Code 1860, No.45, Acts of Parliament, 1860, § 499.

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free speech jurisprudence. Furthermore, it has also protected freedom of press in this great

democracy.

II. Facts Of The Case And Arguments

In the present matter respondents V.V Minerals instituted a criminal defamation complaint against

Sandhya Ravishankar and others before judicial magistrate. This defamation complaint was made

for an article published in The Economic times7 in 2015. This article raised some essential

questions on validity of mining operations. Specially of beach sand mining in Tamil Nadu. In that

article the author has contended that in fishing hamlet called Periyasamypuram in Tuticorin

district, Tamil Nadu various illegal mining projects are going on. A P.I.L has also been filled to

restrict the sand mining in the area the value of which is up to 1 lac crore8. But “The most curious

documents which are part of the PIL, however, are a set of mining licences issued by the Tamil

Nadu Geology and Mining Department to a private company VV Minerals based in Tirunelveli,

Tamil Nadu. These licences are run of the mill except for one fact — they authorise the private

company to mine and export monazite.9” According to the regulation of the Union Government

export of monazite is not permissible. Furthermore, licences were also only given to the V.V

Minerals. This according to the author shows the foul play in the whole matter. But V.V Minerals

found these allegations to be untrue and defamatory in the nature. Initially the corporation gave a

notice to the publishers to take the article down. When the publishers did not agree then V.V

Minerals filled the suit of defamation before appropriate authorities10.

Thereafter summons were issued against petitioners by judicial magistrate for the act of criminal

defamation11. Hence, to quash those summons and preceding petitioner made the present petition

before the High Court. The petitioners in this matter contended that, the case falls within the

exception of section 499 of I.P.C. Hence, proceeding must be set aside. The respondent in the

present matter contended that the High court do not have power to quash the proceedings.

According to them even though the article of petitioner falls within the exception of criminal

defamation it is a subjective matter and has to be decided by way of trial12.

III. Judgment Of The Court

Now, the question before the High court was, is it within the power of High court to quash the

proceeding. Since section 49913 of I.P.C has a very low threshold for acceptance of complaint, i.e.

existence of a defamatory imputation, which has been made with the intention or knowledge that

it will cause harm14. Furthermore, although the matter falls within the exception of section 499 it

7Sandhya Ravishankar, Illegal beach sand mining of minerals in Tamil Nadu may be a scam worth Rs 1 lakh crore,

The Economic Times (May 23, 2015, 17:30 I.S.T.), https://economictimes.indiatimes.com/industry/indl-

goods/svs/metals-mining/illegal-beach-sand-mining-of-minerals-in-tamil-nadu-may-be-a-scam-worth-rs-1-lakh-

crore/articleshow/46079527.cms?from=mdr. 8 Id. 9 Id. 10 Grievances Redressal Officer, Economic Times v. V.V. Minerals Pvt. Ltd., 2020 (3) M.L.J. (Crl.) 241, ¶ 2. 11 Id.. 12 Id. 13 Indian Penal Code 1860, No.45, Acts of Parliament, 1860, § 499. 14 Gautam Bhatia, A Sullivan for the Times: The Madras High Court on the Freedom of Speech and

Criminal Defamation, Indian Constitutional Law and Philosophy, (May 16, 2020),

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has to be proved in the trail court. This restrict the High court from interfering in such proceedings

at the trial stage15. But in this judgment the approach of the court must be appreciated. The court

in this matter without showing much judicial activism used accepted principle and precedents to

quashed the proceeding. The method used by the court has ensured a new beginning in Indian free

speech and criminal defamation jurisprudence.

The court while deciding the petition has applied a two-step approach and then concluded that

proceedings must be quashed. Firstly, the court relied upon the recent precedents of courts of India

and abroad to determine current scenario and status of defamation laws and media. By this

approach the court articulated the principle deduced and laid down by those judgments.

Furthermore, the court applied the same in the present case with proper logical application. Firstly,

the court pointed out towards New York Times v Sullivan16 where principle of actual malice was

recognised. In this judgment the U.S Supreme court further held, merely because there is some

error in the statement does not makes it defamatory unless it is made in malicious or reckless

manner. The court further observed that free speech also needs a breathing space that is, space to

make error and mistakes. It is essential for proper working of any democracy.

Then the court further pointed out, the principle of New York Times17 case is also recognised by

the Indian Supreme court in R. Rajagopal vs. State of Tamil Nadu.18 It has now become an essential

part of Indian free speech jurisprudence. The court in this case also relied upon the judgment of

Madras19 and Delhi20 High court. The court held it is now an accepted law in India that mere

inaccuracies in statement would not make writer liable for defamation. It has to be proved that

either writer knew that statements were false or they were made by the writer in a reckless manner.

The court further found the principle of New York times case laid down in exception 321 of section

499 in following words:

“What must be seen is whether the subject matter is a public question or not.

Exception No.3 to Section 499 IPC refers to public question. Of course, the said

expression has not been defined anywhere including the Law lexicons. But, one can

safely understand it to mean an issue in which the public or the community at large

has a stake or interest. Media ought to be relieved from any criminal prosecution

once it is noted that its case falls within the Exception as delineated above22.”

This observation has helped the court immensely in applying the principle of Sullivan in the

present matter. Then the court held that, in given facts and circumstances the author for her article

https://indconlawphil.wordpress.com/2020/05/16/a-sullivan-for-the-times-the-madras-high-court-on-the-freedom-of-

speech-and-criminal-defamation/. 15 Id. 16 New York Times v. Sullivan, 376 U.S. 254, 270. 17 Id. 18 R. Rajagopal v. State of Tamil Nadu, (1994) 6 S.C.C. 632, ¶ 28. 19 R. Rajagopal v. J. Jayalalitha, A.I.R. 2006 Mad 312. 20 Petronet Lng Ltd. v. Indian Petro Group, (2009) 158 D.L.T. 759. 21 “Conduct of any person touching any public question. - It is not defamation to express in good faith any opinion

whatever respecting the conduct of any person touching any public question, and respecting his character, so far as

his character appears in that conduct, and no further.” Indian Penal Code 1860, No. 45, Acts of Parliament, 1860, §

499, Exception 3. 22 Grievances Redressal Officer, Economic Times v. V.V. Minerals Pvt. Ltd., 2020 (3) M.L.J. (Crl.) 241, ¶ 15.

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relied upon the writ petition filled by Victor Rajamanickam. He was later made to withdrew from

the proceedings due to malice but the petition still continued. This clearly shows that the article

written by the author has not been written in a malicious or reckless manner. Hence, this would

not result in defamation23.

After deciding the status of law with regard to criminal defamation, the court had to decide whether

it has power to quash the petition under section 48224 of CR.P.C. To determine this the court tried

to find out whether this complaint would violate any fundamental right of the petitioner. If it

violates the right then the court can take cognizance of the matter. It is the responsibility of the

court to protect fundamental right of each and every citizen. This could be understood from

following words of the court:

“The sentinel must ever be alert to danger and charge forth when required. The

Court can never desert its duty when it comes to protection of fundamental rights.

Those observations will apply to the entire higher judiciary.25”

The court then held that, criminal defamation affects the freedom of media. It has become a tool

in the hands of corporate houses and influential person to intimate and restrict press from freedom

to express itself26. Therefore, the court further held,

“When freedom of press which is a fundamental right is at stake, higher judiciary

is obliged to exercise not only its inherent power but also exert itself a bit. An

unused power is a useless tinsel. There is no point in merely saying that press is the

foundation of democracy.27”

Then the court further held, to protect free speech as fundamental right the court may not need to

rely upon trials of lower court. It can do summary trial itself under inherent power of the court to

see whether the matter falls within the exception of section 499 or not. If yes, then it can quash the

petition, if not, then to determine liability trial must occur. By this approach the right of

complainant never gets affected. This also ensures protection of fundamental right of the citizens

and media. By this approach they could not be intimated under the fear of long run trials. This can

restrict imposition of chilling effect on proper working and freedom of press28.

After determining both the question of law i.e. under inherent jurisdiction the court can quash

criminal defamation proceedings. Furthermore, some error in the statement would not make it

defamatory unless made recklessly. The court held that, criminal defamation complaint can be

quashed against the petitioner. The case of petitioner has fulfilled the good faith requirement and

23 Id., at 22. 24 Saving of inherent powers of High Court- Nothing in this Code shall be deemed to limit or affect the inherent powers

of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent

abuse of the process of any Court or otherwise to secure the ends of justice.

Code of Criminal Procedure 1973, No. 2, Acts of Parliament, 1974, § 482. 25 Grievances Redressal Officer, Economic Times v. V.V. Minerals Pvt. Ltd., 2020 (3) M.L.J. (Crl.) 241, ¶ 18. 26 Id. at ¶ 20. 27 Id at ¶ 19. 28 Id at ¶ 20.

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statements are not made recklessly29.

IV. Analysis Of The Judgment

This judgment of the Madras High court has developed a new transformative jurisprudence of free

speech and criminal defamation. Firstly, this judgment has made Sullivan principle equally

applicable in both civil and criminal law. Earlier post Rajagopal judgment, Sullivan principle only

applied in civil defamation case. It has made situation quite unprecedented as in that scenario, you

need more evidence to prove a civil wrong then a criminal wrong. Earlier there was no precedent

available for applicability of Sullivan principle in cases of criminal defamation. But in this

judgment the court understood the imperfection in precedents. Hence, recognised the applicability

of Sullivan principle on criminal defamation. The court not only recognised the principle of great

American case in criminal defamation but also provided it statutory backing under exception 330

of section 49931 of I.P.C. Acceptance of Sullivan principle in cases of criminal defamation has

gave many a hope that, this judgment will ensure and bring greater freedom of speech and

expression. It will further ensure more freedom to the media. Furthermore, they will not be

intimated by the threat of criminal defamation by big corporate houses and influential people.

This judgment of Madras High court has another transformative aspect in it i.e. Increase in the

inherent power of the High court. In this judgment the court held that, to protect the fundamental

rights of the citizens the court can use its inherent power on any occasion in any aspect32. This

includes conducting summary trials in matters where if such trials do not occur, it will restrict right

of the citizens. It may affect proper implementation and working of the democracy. Acceptance of

this view will have greater implication on future courts on matters related to inherent power. By

application of this principle now High court can do anything to ensure complete justice. This can

some time in future make High court an activist court. Therefore, this view has to be implemented

in a contained manner in rarest of rare cases.

V. Conclusion

The judgment of the Madras High court has to be appreciated for the approach it has applied to

ensure free flow of data and news in a budding democracy. In this judgment the court further tried

to restrict unwanted restriction upon the free speech. It also restricted chilling effect upon the media

house who may commit error in reporting even after taking proper care and caution. This judgment

should be hailed further for restricting applicability of criminal defamation. It also recognised

Sullivan principle in criminal defamation. The court further imposed greater responsibility upon

higher judiciary to protect fundamental rights of the citizens. The Madras High Court by this

judgment has developed a new hope for revival of free speech jurisprudence in India.

This judgment of the madras High court has furthermore raised questions on proper applicability

of criminal defamation law. According to the court this provision is more likely to use as a gag on

media instead of a protective measure. Use of criminal defamation as a gag on press has always

29 Id at ¶ 24. 30 R. Rajagopal v. State of Tamil Nadu, (1994) 6 S.C.C. 632. 31 Indian Penal Code 1860, No.45, Acts of Parliament, 1860, § 499. 32 Grievances Redressal Officer, Economic Times v. V.V. Minerals Pvt. Ltd., 2020 (3) M.L.J. (Crl.) 241, ¶ 20.

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been a concern in our democracy. Therefore, while deciding the validity of this provision the

Supreme court gave various guidelines and held33 that this provision should be used in exceptional

cases only. Further on 21st of may, in another case Madras High court held34 that while taking

cognizance in cases of criminal defamation a high standard has to be maintained. Furthermore,

only prima facie evidence is not sufficient to start the proceeding.

Therefore, all these developments have generated a new hope among many, of a democracy where

there is no unnecessary chilling effect among press. Where everyone is free to express their idea

in search of truth even though how so offensive their idea may be in the eyes of our society.

33 Subramanian Swamy v. Union of India, (2016) 7 S.C.C. 221. 34 Thiru N. Ram v. Union of India, 2020 (3) M.L.J. (Crl) 289.

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The WTO Dispute Settlement Crisis: The Problem is Not as Worse as it Looks

Vedant Singh and Isha Chaudhary1

Abstract

The present analysis is made to address the current crisis faced by the World Trade

Organization regarding the judges' appointment at the Appellate level of the WTO's dispute

settlement mechanism. The crisis is the consequential outcome that arose after two judges

retired from the appellate body, which has left the body understaffed. As a result, the body

now ceases to be relevant and in an uncertain position. Furthermore, the problem has

worsened by the U.S. logjam by blocking appointments to the body. Considering the vitality

and primordial importance of the body in ensuring that the international trade flow is not

hampered, the said “crisis” deserves to be acknowledged and addressed at the earliest. Hence,

the present analysis sheds light upon the issue and provides for certain suggestions that might

help find the solution to the problem faced by the trade organization and help address the

consequent delay in dispute settlement.


I. Introduction to the Organization

The World Trade Organization (WTO), located in Geneva, Switzerland, came into being 1st

January 1995 due to lengthy deliberations and discussions at the Uruguay round of GATT

negotiations (1986-94).2 It is established by the Marrakesh Agreement, an agreement signed in

Marrakesh by 123 nations in the year 1994. The agreement incontestably and clearly spells out the

Organization.3 Furthermore, WTO is said to have extended GATT, 1947,4 as it became only one

of the various major agreements which later went into the WTO.5 There are 164 members

associated with the trade organization, which represents 95-98 percent of the world trade.6 Set up

to reduce tariffs and barriers to trade, it is deemed the only organization engaged in dealing with

the “rules of trade” between different nations. These global trade rules are formed as they provide

assurance and stability, which leads to a more prosperous, peaceful, and accountable economic

world.7For example, WTO agreements limit the tariffs and prevent disease spread by establishing

sanitary standards on agricultural products.8

II. Insight into the WTO Dispute Settlement Process

Article III of the Marrakesh Agreement states the ‘functions of WTO’.9 It states that it shall

1 Vedant Singh & Isha Chaudhary, Year II, B.A. LL.B. (Hons.), National Law University, Jodhpur. 2 What is the WTO? World Trade Organization, https://www.wto.org/english/thewto_e/whatis_e/whatis_e.htm. 3Agreement establishing the World Trade Organization, World Trade Organization (Mar. 18th, 2020),

https://www.wto.org/english/docs_e/legal_e/04-wto.pdf. 4The General Agreement on Tariffs and Trade (GATT 1947), World Trade Organization,

https://www.wto.org/english/docs_e/legal_e/gatt47_01_e.htm. 5 Rufus Pollock, Basic Facts about WTO (Mar. 19th, 2020), https://rufuspollock.com/wto/basic-facts-about-the-wto/. 6 What is the WTO? World Trade Organization, https://www.wto.org/english/thewto_e/whatis_e/whatis_e.htm. 7 Id. 8 10 things to know about the World Trade Organization, Institute for Government, U.K.,

https://www.instituteforgovernment.org.uk/explainers/10-things-know-about-world-trade-organization-wto. 9The Agreement Establishing the WTO, WTO,

https://www.wto.org/english/res_e/booksp_e/agrmntseries1_wto_e.pdf.

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http://www.wto.org/english/thewto_e/whatis_e/whatis_e.htm


http://www.wto.org/english/docs_e/legal_e/04-wto.pdf


http://www.wto.org/english/docs_e/legal_e/gatt47_01_e.htm

http://www.wto.org/english/docs_e/legal_e/gatt47_01_e.htm



http://www.instituteforgovernment.org.uk/explainers/10-things-know-about-world-trade-organization-wto

http://www.instituteforgovernment.org.uk/explainers/10-things-know-about-world-trade-organization-wto

http://www.wto.org/english/res_e/booksp_e/agrmntseries1_wto_e.pdf

http://www.wto.org/english/res_e/booksp_e/agrmntseries1_wto_e.pdf



administer the rules and procedures governing the settlement of disputes. This happens through

the "Dispute settlement Understanding agreement," which is the main WTO agreement on settling

disputes.10 A dispute is said to arise when a member government believes that another member of

the agreement is violating any of the terms and commitments they entered into the WTO. It is

believed to be one of the most active and effective dispute settlement mechanisms in the world

and, since its establishment, has given over 350 rulings from the 594 disputes brought to it.11 Since

the crisis pertains to the appointment to the appellate level, it becomes pertinent to understand the

Appellate Body's functioning of the Dispute settlement mechanism.

a. Dispute Settlement: Understanding How the Appellate Body Works

The Appellate Body was established in 1995 under Article 17 of the "Dispute Settlement

Understanding" agreement. It is composed of seven members having a seat in Geneva,

Switzerland.

This body's primordial function is to hear the appeals arising out of the panel's reports in disputes

brought by the member countries of the WTO. It has various powers, including the power to

uphold, reverse, and modify the panel's decisions and the Appellate body's reports after being

accepted by the DSB12, they have to be accepted by the parties to the dispute, mandatorily.13 As

stated above, the body comprises 7 members appointed to serve four-year terms with no

restrictions or limitations regarding their reappointment to the body. Furthermore, the mere

membership to the Appellate Body shall be broadly representative of membership in the WTO.

b. The procedure followed by the dispute tribunal

In general, two approaches are usually followed by an appellate tribunal while settling a dispute

whose mandate is limited to the "question of law". One is to decide the issue at the appellate level

where the case is "ripe" for a decision, and no further fact exploration is required, and the other

approach is to send the case back to the lower body, the trier of facts. Such power to send the case

back is called the remand authority, however, this does not exist with the WTO, and consequently,

the first approach gets a highlight.

c. Power to withdraw an appeal

An appellant is entitled to withdraw the appeal so filed any time by rule 30 (1) of the Working

procedures. However, it falls within the discretion of WTO Members regards both, be it to initiate

disputes or to terminate them. Furthermore, the possibility of withdrawing an appeal reflects the

DSU for the parties to find a mutually agreeable solution to the dispute.14

d. Deadline for review

The proceedings must be completed within 60 days and cannot, in any case, take more than 90

days from the date of the filing of the notice of the appeal. Also, even in a case where the lower

10 Id. 11 Dispute Settlement, WTO, https://www.wto.org/english/tratop_e/dispu_e/dispu_e.htm. 12 Dispute Settlement Undertaking, WTO, art. 17.13. 13 Id. 14 Id. At art. 3.7.

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permissible limit of the review of the proceedings is exceeded, this has to be reported to the DSB

and the reasons for the delay and an estimation of time within which the report's circulation is to

take place.15

III. Current Crisis and its Impact

It requires a quorum of 3 judges to hear a case in Appellate Body, as previously stated.16 And the

appointment of new judges cannot be made without the consensus of all the member nations.17 On

10 December 2019, two judges namely, Uday Singh Bhatia (India) and Thomas R Graham (US),

out of the three remaining, retired, leaving only one judge in the Body.18 With only one judge in

the Appellate Body, the dispute resolution has become a great problem for the countries that want

to appeal against the Dispute Panel's decision.

Now, the main concern which draws attention is the blocking of the appointments by the U.S. The

argument advanced by them for the same is that WTO has always done unjust behaviour towards

them through its dispute settlement.19 Furthermore, it believes that the Appellate Body judges are

paid far too much than their performance. The ambassador Dennis Shea has claimed that the WTO

Appellate Body has consistently been overstepping its authority by reversing and reviewing the

trade arbitration panel's findings and arbitrarily interpreting the member's domestic trade laws

nations.20

Summing up all the above-mentioned factors together, the outcome is the consequential blockade.

The impact of this blockade can be three-fold and are far-reaching at the same time:

Now, the global trade is in great uncertainty due to a higher amount of protectionism and

the US's trade war.21 The rise of protectionism in the US is of great influence on global

trade and itself. A tariff hike raises the price of imports, which leads to a rise in the prices

paid by the consumer and the companies. This, in turn, adversely impacts the consumption

and investment of the protectionist state22 and it is this uncertainty which leads to ‘wait and

see’ attitude in the consumers and the companies which resultantly depresses the economy

at large.23

15 Id. At art. 17.5 16 Members: Appellate Body, World Trade Organization (Mar. 16th, 2020),

https://www.wto.org/english/tratop_e/dispu_e/ab_members_descrp_e.htm. 17 Id. 18 Tom Miles, World trade's top court close to a breakdown as U.S. blocks another judge, Reuters (Mar. 16th, 2020),

https://www.reuters.com/article/us-usa-trade-wto-judge/world-trades-top-court-close-to-breakdown-as-us-blocks-

another-judge-idUSKCN1M621Y. 19 James Bacchus, Simon Lester, & Huan Zhu, Disciplining China's Trade practices in WTO: How to make China

more market-oriented, CATO Institute (2020),

https://www.cato.org/publications/policy-analysis/disciplining-chinas-trade-practices-wto-how-wto-complaints-can-

help. 20Agreement establishing the World Trade Organization, World Trade Organization (Mar. 18th, 2020),

https://www.wto.org/english/docs_e/legal_e/04-wto.pdf. 21 Aarshi Tirkey & Raisina Debates, The WTO’s appellate body crisis: Implication for trade rules and multilateralism,

Observer Research Foundation (Mar. 17th, 2020),

https://www.orfonline.org/expert-speak/the-wtos-appellate-body-crisis-implication-for-trade-rules-and-

multilateralism-60198/. 22 Id. 23 Claudia Canals, The Threat of Protectionism in the Global Economy, Caixa Bank Research,

237

http://www.wto.org/english/tratop_e/dispu_e/ab_members_descrp_e.htm

http://www.wto.org/english/tratop_e/dispu_e/ab_members_descrp_e.htm

http://www.reuters.com/article/us-usa-trade-wto-judge/world-trades-top-court-close-to-breakdown-as-us-blocks-

http://www.reuters.com/article/us-usa-trade-wto-judge/world-trades-top-court-close-to-breakdown-as-us-blocks-

http://www.cato.org/publications/policy-analysis/disciplining-chinas-trade-practices-wto-how-wto-complaints-can-





http://www.orfonline.org/expert-speak/the-wtos-appellate-body-crisis-implication-for-trade-rules-and-

http://www.orfonline.org/expert-speak/the-wtos-appellate-body-crisis-implication-for-trade-rules-and-



The above policies of countries, especially the US, would lead to trade disputes among the

countries, and a non-functional Appellate mechanism would disrupt Global Trade.

Most importantly, recently, the dispute panel has ruled against India and ordered it to take

back the export incentive schemes initiated by the Indian Government to boost exports, as

they are alleged to be violative of the fair-trade principle. Consequently, India wanted to

seek an appeal against the same. Hence, it is being stated that if the dispute settlement

mechanism becomes defunct, then it would put India in a disadvantageous position when

negotiating with other developed countries.24

The non-functional Appellate Body has created many problems and uncertainty in the global

market as India refuses to comply with the dispute panel's decision as it prefers an appeal, on the

other hand, the US prefers to respect the judgment of the dispute panel. Hence, it is being stated

that if the dispute settlement mechanism becomes defunct, then it would put India in a

disadvantageous position when negotiating with other developed countries.25Therefore, several

economists claimed that the World Trade Organization is facing an existential crisis because of

these ill-effects.

IV. The problem is not as worse as it looks.

Economists have argued that the Appellate Body of WTO's demise may not have such large scale

adverse impacts. At the same time, they believe that the fall of the WTO Appellate Body should

rather be seen as an opportunity to address the flaws present in the dispute settlement mechanism.

Hence, in this part, we would explain how this WTO crisis would not interfere with its future

functioning, and the fall of the Appellate Body would not impact the dispute resolution mechanism

of WTO.

Firstly, we must return to a much better dispute resolution mechanism of GATT. Under the WTO,

the decisions of dispute panel can be rejected only by consensus, i.e. member nation has to agree

with the idea of rejection. This is known as Reverse Consensus Rule.26 While in erstwhile GATT,

the rule that was adopted was called Positive Consensus Rule.27 Under this rule, the Dispute Panel

decisions can be accepted only by a consensus.28 Therefore, it enables a member country to reject

an adverse decision. For example, if any decision of the dispute panel goes against the US's

policies, then under WTO rule, it would be tough for the US to gather consensus to reject the

decision, it would have to prefer an appeal. But if this is the case with the GATT rule, then the US

can reject the dispute panel's decision and ensure that its ruling is not accepted. So, on a way,

GATT provided for a virtual veto to each member nation against the dispute panel's decisions.

And, pertinent to note, more than 70% of the decisions of the dispute panel in GATT were accepted

https://www.caixabankresearch.com/en/threat-protectionism-global-economy. 24 Simi TB, India at Dispute Settlement Understanding, Trade Law Brief (Mar. 17th, 2020),

https://www.cuts-citee.org/pdf/Trade_law_Brief10-India_at_Dispute_Settlement_Understanding.pdf. 25

Simi TB, India at Dispute Settlement Understanding, Trade Law Brief (Mar. 17th, 2020),

https://www.cuts-citee.org/pdf/Trade_law_Brief10-India_at_Dispute_Settlement_Understanding.pdf. 26Dispute Settlement System Training Module, WTO, (Mar. 18th, 2020),

https://www.wto.org/english/tratop_e/dispu_e/disp_settlement_cbt_e/c3s1p1_e.htm. 27 Mary E. Footer, The Role of Consensus in GATT/WTO Decision-making, 17 Nw. J. Int’l L. & Bus. 653 (1996-

1997). 28 Ibid.

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http://www.wto.org/english/tratop_e/dispu_e/disp_settlement_cbt_e/c3s1p1_e.htm

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through consensus, and the member nations didn't use its veto.29 Therefore, in a way, the GATT

mechanism for dispute resolution was more efficient than that of WTO.

Secondly, we have to realize that WTO’s appellate body comes into the picture only during the 3rd

stage of the dispute settlement process, and not all cases reach the dispute settlement body.30

As previously mentioned, the first stage in dispute resolution is the prior consultation between the

parties where they can amicably resolve the issues between them within 60 days. Similarly, most

of the trade agreements among the members enable each country to initiate action independently

without approaching the dispute settlement body.31 For instance, suppose country A starts dumping

its goods in country B, then, in that case, country B can impose anti-dumping duty on its own,

without taking recourse of WTO dispute settlement body. And finally, if any country is found to

be violating the WTO norms, then any member nation can use the threat of imposing sanctions to

force that country to comply with the norms.32 For instance, suppose that if India finds out that the

US is violating any WTO rules, then India can use the threat of imposing reciprocal sanctions

against the US.

Thirdly, recently, a new type of pacts is prevalent among countries with a clause of 'no appeal'.33

According to this, the contracting countries agree that they would not appeal against the dispute

panel's decision. Recently, Indonesia and Vietnam had signed such a pact. And since they have

decided so, the non-functional appellate body does not impact their trade. Further, some countries

like the EU, Norway, and Canada have established an interim appeal system, an arbitration

mechanism for dealing with appeals relating to trade disputes.

Fourthly, there are remedies available in the Public International Law, also. The provisions

provided in the Draft on State Responsibility prepared by the International Law Commission

(ILC)34, namely, Article 41 and 42 of the ILC Draft, which imposes an obligation on the wrongdoer

state to (i) stop the illegal act (cessation), and (ii) provide the injured state with reparations.35 In

addition, the draft also mandates the parties to refer the matter to third-party adjudication.

Therefore, if the nations seek redressal of their dispute other than WTO, these provisions can help

these nations.36

29 Joost Pauwelyn, The Transformation of World Trade, Berkeley Journal,

https://www.law.berkeley.edu/files/spring05_Pauwelyn.pdf. 30 Joost Pauwelyn, WTO Dispute Settlement Post 2019: What to Expect? 22 J. Int. Econ. Law 297, 297 (2019),

https://doi.org/10.1093/jiel/jgz024. 31 Henrik Horn and Petros C. Mavroidis, Remedies in the WTO Dispute Settlement System and Developing Country

Interests, (Mar. 18th, 2020),

https://www.iatp.org/sites/default/files/Remedies_in_the_WTO_Dispute_Settlement_System_.htm. 32 Steve Charnovitz, The WTO’s Problematic “Last Resort” Against Noncompliance (Dec. 2002),

https://www.peacepalacelibrary.nl/ebooks/files/Charnovitz_Last-Resort.pdf. 33 Simon Lester, Planning for Life without the Appellate Body, International Economic and Policy Blog, (Mar. 23rd,

2020), https://worldtradelaw.typepad.com/ielpblog/2019/03/planning-for-life-without-the-appellate-body.html. 34 UNGA Doc A/CN.4/L.528/Add. 2 (Jul. 16, 1996). 35 Responsibility of States for Internationally Wrongful Acts, 2 Yearbook of the International Law Commission,

(2001). 36 Henrik Horn and Petros C. Mavroidis, Remedies in the WTO Dispute Settlement System and Developing Country

Interests, Mar. 18th, 2020.

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http://www.iatp.org/sites/default/files/Remedies_in_the_WTO_Dispute_Settlement_System_.htm

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V. Conclusion

International Trade has now become a significant part of each country globally, without which

survival is unimaginable. No nation can be self-sufficient in terms of every resource; therefore,

international trade helps in satisfying the demands of the population. The exchange of goods and

services between countries also promotes bonhomie among them, resulting in international peace.

But any type of transaction is bound to have disputes, and settlement of those disputes in a speedy

manner ensures the flow of goods and services uninterruptedly and peacefully. The whole article

gives insight into the formation, functioning, and dispute settlement procedures of the World Trade

Organization. Certain loopholes could be pointed out during the dispute settlement procedure,

which has led to the current crisis. Various economists see this problem of Appellate Body of

WTO as an existential crisis for the organization, which could lead to a lot of uncertainty and

maybe disruption of trade among nations. But as mentioned previously in the article, certain

options are still available with the aggrieved countries that enable them not to depend upon the

non-functional appellate body and settle on other methods to solve the dispute. Further, various

other suggestions can certainly improve the organization's dispute settlement procedure and ensure

that such an 'existential crisis' does not arise in the future. Those may not be the exhaustive options

available, but they are certainly not the ones that can also be ignored. Therefore, to improve the

functioning of WTO in the future and dodge such type impediments, these suggestions should be

inculcated by the organization and the aggrieved nations.

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The Spirit of Democracy and Rule of Law in India: An Analysis of the UAPA

& NIA Amendment Bills (2019) with Context to Misuse of Power under the

Garb of Anti-Terror Legislations

Prajjwal Tyagi & Ishita Yadav1

Abstract

There cannot be a preposterous assumption that in adopting the Constitution the people of

India surrendered the most precious aspect of the human persona, namely, life, liberty and

freedom to the state on whose mercy these rights would depend. Rather it was intended that

India constitutes itself as a democratic state within whose heart lies the basic fundamental

rights, liberty, freedom, and subsistence of rule of law. Rule of law means that there should

be lacking arbitrariness in state actions. However, these foundations of democracy

experience a severe jolt when the government introduces amendments to anti-terror

legislation which insidiously aims towards securing political allegiance rather than the rights

and liberties of the citizens. Prediction of the similar repercussions of UAPA and NIA

amendment bills 2019 have been argued in this paper. This article elucidates how these

amendments are designed to enhance the executive’s vigour and give sweeping powers to the

government in ways that facilitate human rights abuses. An analogy has also been drawn by

comparing facts of the previous anti-terror legislation to prove that tougher laws have

always threatened the citizens rather than the terrorists. Moreover, the authors have also

tried to establish a nexus between the synchronous introduction of both the amending bills in

the parliament.

Keywords – Democracy, Rule of Law, Anti-terror laws, Fundamental Rights, Misuse.


I. Introduction

“No man can be grateful at the cost of his honour; no woman can be grateful at

the cost of her chastity and no nation can be grateful at the cost of its liberty.” -

Daniel O'Connell

After 200 years of the tyrannical rule of the British which was characterized by brute oppression

and exploitation of the countrymen, if people still think that yes democracy was surely bestowed

as a gift by the English then they are sadly mistaken. The truth is that it had to be snatched and

seized away from them. The rights which the Indians were deprived of such as the right to self-

determination and individual autonomy in expression, beliefs and opinions, later were considered

as the fundamental roots of India’s democracy. These rights were proclaimed to be the

cornerstone of the very democracy for which the forefathers fought for. Dr. Ambedkar in his last

speech in the constituent assembly while elucidating political democracy in India, said- “it means

a way of life which recognizes liberty, equality and fraternity as the principles of life.”2 When we

say that India is a democracy, we mean not only that its political institutions and processes are

democratic, but also that Indian society and all Indian citizens are democratic, reflecting basic

democratic values of equality, freedom, fraternity, secularism and justice in the social

environment and individual behaviour.3Since democracy is founded on the primacy of the law

1 Prajjwal Tyagi and Ishita Yadav - Secord Year, B.A. LL.B. University of Petroleum and Energy Studies,

Dehradun. 2 B.R Ambedkar, Constituent Assembly Debates, (May12, 2020, 8:57), https://www.constitutionofindia.n et/const itution_assembly_debates/volume/11/1949-11-25.

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and the exercise of human rights.4 The greatest protection of human rights emanates from a

sustainable democratic framework grounded in the rule of law.5

The term ‘Rule of Law’ has been derived from a French phrase “la principe de legalite”, which

means “the principle of legality”. It refers to a government that is completely based on the

principles of law. This rule comes from England and is best explained by Prof. A. V. Dicey in his

celebrated work, Introduction to the Study of the Law of the Constitution (1885).6 He

propounded three principles which are sine qua non for the predominance of rule of law. First is

the supremacy of law, second, equality before the law and third is the predominance of legal

spirit.

According to the first principle, A. V Dicey states that rule of law means there should be lacking

of arbitrariness or wide discretionary power. “Wherever there is discretion, there is room for

arbitrariness.”7 That is why there should prevail supremacy of law which requires that the

Government should be subject to the law, rather than the law subject to the Government.8 The

rule of law requires that people should be governed by accepted rules, rather than by the arbitrary

decisions of rulers. These rules should be general and abstract, known and certain, and apply

equally to all individuals.

Stable laws are a prerequisite of the certainty and confidence which form an essential part of

individual freedom and security. And if there doesn’t exist dominant and well-established laws

over the government then they can be easily tilted and swayed to garner political allegiance.

The principle implicit in the rule of law that executive must act under the law, and not by its own

decree or fiat, is still a cardinal principle of the common law system.9 There is no doubt that the

rule of law pervades the Constitution as an underlying principle. In fact, the judiciary has

considered this principle as the sole raison d'être for the survival of human rights which India is

determined to conserve and preserve.

In the case of Kesavanda Bharati v. State of Kerala10, the Honourable Supreme Court held that

the Rule of Law is the “basic structure” of the Constitution. In the case of Indira Nehru Gandhi v.

Raj Narayan11, the Apex Court held that Rule of Law embodied in Article 14 of the Constitution

is the “basic feature” of the Indian Constitution and hence it cannot be destroyed even by an

amendment of the Constitution under Article 368.

In the case of A.D.M. Jabalpur v. S. Shukla12, Khanna J. Observed: Rule of Law is the antithesis

of arbitrariness. Without such sanctity of life and liberty, the distinction between a lawless

society and one governed by laws would cease to have any meaning. Rule of Law is now the

4 Rana Ishtiaq Ahmed, Democracy in the context of human rights, 1(2015). 5Democracy and human rights, UN UNDP & UNHCR (2013). 6Albert Venn Dicey, The Introduction to the study of Law of the Constitution (8th ed. ,1915). 7id. 8William Wade & Christopher Forsyth, Administrative Law34-36 (7th ed., 1994). 9Pranav Kaushal, Rule of Law Under Indian Constitution (May 11 2020), https://lawcorner.in/rule-of-law-indian-

constitution/. 10Kesavanda Bharati v. State of Kerala, (1973) 4 SCC 225. 11 Indira Nehru Gandhi v. Raj Narayan, (1975) 2 SCC 159. 12 A.D.M. Jabalpur v. S. Shukla, (1976) 2 SCC 521.

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accepted norm of all civilized societies. Everywhere it is identified with the liberty of the

individual

There are primarily 4 categories of forms of governments across the globe. These are

dictatorship, democracy, monarchy and oligarchy. What sets out democracy from the others is

that democracy prioritizes civil liberties as it is for the people, of the people and by the people.

Precedence to fundamental rights, the existence of rule of law, absence of arbitrary laws and

protection of life and liberty, lies only in the heart of a democracy. In a parliamentary democracy

rights and liberties of the citizens are so important that the Parliament ought not to exercise its

law-making power to subordinate or subjugate them. In a democratic State, no one is above the

law and all are equal before the law.13 India which is perhaps the world’s largest democracy has

a peculiar onus of preserving the dimensions of a democratic state.

However, this foundation of rule of law and democracy topples when the government authorizes

unaccountable laws that confer despotic and unfathomable powers to the state, which jeopardize

the rights and liberty of the citizens.

II. Terror Or Anti-Terror Legislation -Which Is A Greater Threat To Fundamental

Rights And Liberty Of The Citizens?

Time and again the Governments have propagated this myth that tougher laws alone can defeat

terrorism. But the facts in India suggest a contrary trend. It has been experienced in the past that

whenever the governments have brought up stringent laws against terrorism, they have ended up

conferring such inexhaustible powers to the government which at times becomes a threat to the

very fundamental rights which were intended to be defended by these laws. Therefore, they have

proved to be more frightening for the citizens rather than for the people on which they should be

subjected to.

TADA14 and POTA15 after being amended several times were considered to be the ultimate

counter-terrorism laws but the statistics highlight a different result.16 Under POTA, 4349 cases

were registered, out of which 1031 were arrested and only 13 were being convicted. This data

was provided by the then home minister in Rajya Sabha on 14th May 2005.17 Under TADA as of

30 June 1994, 76,166 people were arrested, and only 843 got convicted. Thus, the conviction rate

of TADA was less than 1.11%.18 Finally, both these laws were struck down for the same reason

that they were pieces of legislation that were terrorizing precisely those sections of the

population which are vulnerable and are victims of gross injustices.

Similarly, the Centre is creating yet another narrative that by amending Unlawful Activities

(Prevention) Act,1967 and National Investigation Agency,2008 the country will have a more

robust law to tackle terrorism. However, the truth is that like its predecessors (TADA AND

13 Cherif Bassiouni & David Beetham, Democracy: Its Principles and AchievementV (1998). 14Terrorist and Disruptive Activities (Prevention) Act, 1987 (No. 28 of 1987). 15 The Prevention of Terrorism Act, 2002(No. 15 of 2002). 16 Ujjwal Kumar Singh, The State, Democracy and Anti-Terror laws (2007) 17 Parliament of India Lok Sabha House of the People, The Unlawful Activities (Prevention) Amendment Bill,

2019(May 12,2020 11:50), http://loksabhaph.nic.in/Debates/textofdebate.aspx. 18ibid.

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POTA), UAPA too will end up conferring discretional powers and will finally fall prey to the

profound exploitation of the Indian masses.

a. The Unlawful Activities (Prevention) Amendment Bill, 2019

The status quo was altered on August 2nd, 2019, when the parliament passed The Unlawful

Activities (Prevention) Amendment Bill, 2019. There are three primal provisions in the

amending bill through which the government has aspired to attain unbounded powers.

1. Discretion to name individuals as terrorists-

By amending section 35 of the UAPA act, the government has enabled itself to declare, by

notification, any ‘individual’ as a terrorist and add the name of such a person in Schedule 4 of

the Act.19 This alteration no matter how innocuous it seems is full of latent irregularities, namely:

Do ends justify means?

The paramount onus of the government before gifting such immoderate powers to itself was to

justify the need of bringing such provisions. It had to prove the people, the dire exigency of

tagging an individual as a terrorist. Well, the government gave it a nice shot by contending that,

the existing power of naming an ‘organization’ as a terrorist organization was too little for them

to punish lone terrorists and that is why it had become essential to name individual persons as

terrorists without even a due process. However, the truth is that the UAPA Act,1967 already has

ten distinct provisions (Section 16-24A) for punishing “lone terrorists” or “members of a terrorist

organization” separately.

Also, the crucial question is that how many lone-wolf attacks have been experienced in this

country that this government had an emergency to name an individual as a terrorist. And that

how many such terrorist activities have been there where the logistics, planning or execution of

the activity has not been done under the umbrella of an organization. So, when already the

government has the authority to ban an organization and to punish its members separately then

why do it want to procure numerous antidotes for the same disease? Doesn't overdose have side

effects?

Article 4 of the International Covenant on Civil and Political Rights affirms that the states can

derogate from their obligation to preserve civil and political rights of the citizens only in acute

emergency matters.20 However, in India, the central government has failed to prove the exigency

in digressing from its primary obligation of providing civil and political rights to persons. It has

failed to qualify the test of necessity in appropriating anti-democratic powers into its hands such

as naming an individual as a terrorist.

19Amendment of Schedule, etc.-- (1) The Central Government may, by [notification], in the Official Gazette, (a) add

an organization to the [First Schedule] [or the name of an individual in the Fourth Schedule]. 20International Covenant on Civil and Political Rights, OHCHR (2016),

(May9,2020)https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx.

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2. Challenge to constitutionality

The mere existence of an enabling law is not enough to restrain personal liberty. Such a law must

also be “just, fair and reasonable.”21 The court established the golden triangle of the constitution

and held that a law depriving a person of ‘personal liberty’ has not only to stand the test of

Article 21 but also Article 14 and Article 19.22

UAPA amendment bill alters Section 35 (2) which enables the government to name an individual

as terrorist only if it believes that such an individual is related to terrorism. This is one of the

most irrational provisions of this bill. It means that there will be no F.I.R, no charge sheet filed,

there will be no trial in a court and there is no conviction but merely because the government

“believes” that a person is related to terrorism he will be named as a terrorist. This provision

does not qualify the prerequisites of the trinity articles and puts immense danger on the rights of

individuals thus is not “just, fair and reasonable”. Once challenged in the court of law the

honourable judges at one go will strike this provision down because there prevails an

institutional conscience in the Indian judiciary for defending the rights of individuals against

arbitrary and unreasonable state decisions.

Again, a fundamental procedural question comes up, that at which stage the government will

name an individual as a terrorist? If the answer is before the trial, then the government is making

a monumental error because there is a maxim in our criminal justice system that a person is

“innocent until proven guilty.” Therefore, naming a person as a terrorist even before he is found

guilty of terrorism by a judicial court would be against the principle of the justice system and

thus unconstitutional. The courts in S. Nambi Narayanan v Siby Mathews & Others Etc.23, have

been continuously upholding the right to reputation as an essential facet of right to life under

article 21. The government by tagging a person as a terrorist through an open notification in the

official gazette violates the right to reputation of a person. It is understood that the reputation of a

person who is a “convicted terrorist” need not be preserved, however, the problem lies in the fact

that now the government even without giving a fair trial can tag any person as a terrorist. And

what is the remedy if afterward it is proven that this person is innocent? How can the

government bring back his tainted reputation? Who is responsible for the breach of his right to

‘personal liberty’ guaranteed under article 21? These questions which directly challenge the very

constitutionality of this amended provision need to be responsible answered.

It seems that the government has forgotten that when POTA was repealed because it was grossly

misused, it was not absolutely struck down. Its provisions related to terrorism were transferred to

UAPA Act,1967 (Chapter IV, V, VI), and the remaining provisions which were the root cause of

such horrendous obliteration of civil and political rights were permanently struck down. Now the

government by adding such anti-democratic provisions yet another time into an anti-terrorism

law is just making the UAPA Bill, 2019 invalid the same as its predecessors (TADA and POTA).

Therefore likewise, that day is not too far when the constitutionality of this act would be called

into question and unfortunately the parliament will have to repeal it.

21 Maneka Gandhi v. Union of India, AIR 1978 SC 597. 22id. 23 S. Nambi Narayanan v. Siby Mathews & Others Etc, (2018) 10 SCC 804.

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3. A tool to stifle nonconformists-

“The shrinking space for dissenting voices and humour cannot augur well for the future of Indian

democracy.”24The major reason for obtaining such illimitable powers is not to secure the country

but it is to secure the government’s political narratives. It has been experienced in the past that

such security laws are used more on the political dissenters and human rights activists who dare

to speak up against the government. Romila Thapar25 case is a perfect proof of such exploitation

of the dissenting voices where a group consisting of human rights activists, journalists,

professors, writers, and a prominent lawyer was arrested under UAPA. Justice D Y Chandrachud

pointed out the ill will of the government and held that the arrests have been motivated by an

attempt to quell dissent.

It is interesting to know that, “three of the arrested persons were prosecuted in the past for

offenses primarily under the Indian Penal Code, 1860, the Arms Act, 1959 and the UAPA

Act,1967. Arun Ferreira is stated to have been acquitted in all eleven cases instituted against him.

Vernon Gonsalves was acquitted in seventeen out of the nineteen cases instituted against him.

Varavara Rao was acquitted in all twenty cases where he was prosecuted.”26 These were some

eye-opening facts about how the government tries to persecute dissenting actions through

continuous legal reactions. “Dissent is a symbol of a vibrant democracy.”27 But now the real

dilemma is that through this amendment the government has an extra tool for choking the

disagreeing voices. It will consider both, the dissenters and the terrorists at the same level.

However, isn't Gautam Nava lakh different from Hafeez Sayed?

4. Adds fuel to the fire of misuse

It is an undeniable fact that anti-terror laws have a history of tyrannical use. But what facilitates

this tyranny is a question that is less asked. Surprisingly the answer is not as enigmatic as it is

considered. It is clearly because of amorphous definitions that the provisions of such amending

bills lay down. Indefinite phrases such as ‘if the government believes’, ‘urgency’, and ‘security

threat’ have given inexhaustible powers to the government. They fade away the limits of the state

and in turn, enable flexible use of these laws. Finally, it results in, the government using anti-

terror laws in ordinary incidents which ‘it believes’ to be against the public order and integrity of

the country.

Indian courts taking cognizance of such gross misuse have also objected against using special

anti-terror laws in ordinary matters where even the normal penal laws can be efficient. In Kartar

Singh v. State of Punjab28, the Supreme Court held that until the alleged acts of an accused could

be classified as a “terrorist act” in “letter and spirit”, he should not be charged under anti-terror

acts but be tried under ordinary penal laws by the regular courts.

24Liberty is the bedrock of a polity based on the idea of freedom, The Telegraph, June 14,2019, at A1. 25 Romila Thapar v. Union of India, (2018)10 SCC 753. 26id. 27 Abhishek Anshu & Ranjit Kumar Sinha, Dissent is a symbol of vibrant democracy: D Y Chandrachud, Outlook

(September 28 2018). 28 Kartar Singh v. State of Punjab, (1994) 3 SCC 569.

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The apex court observed in Hitendra Vishnu Thakur vs. State of Maharashtra29 that “a terrorist

activity does not merely arise by causing disturbance of law and order or public order. The

fallout of the intended activity must be such that it travels beyond the capacity of the ordinary

law enforcement agencies to tackle it under the ordinary penal law.”

In Ram Manohar Lohia v. State of Bihar30 the Court explained the difference between three

concepts: law and order, public order, and the security of the state by referring to three

concentric circles. The largest circle represented law and order, the next represented public order,

and the smallest represented security of the state. The court’s view was that every infraction of

law must necessarily affect the order, but an act affecting law and order may not necessarily also

affect the public order. Likewise, an act may affect the public order, but not necessarily the

security of the state. Anti-terror laws applied only to those actions that affected the security of

the state.31

“A person becomes a terrorist or is guilty of terrorist activity when his intention, action, and

consequence all the three ingredients are found to exist together.”32 But the statistics of the

UAPA act show that the government has been using it as per its whim's and fancies. The number

of pending cases under this act in 2014 was 1,144, trial was completed in barely 33 cases out of

which only 9 were convicted and 24 were being acquitted. In 2015 total pending cases were

1209, trial got completed in only 76 cases, out of which only 11 people were convicted and 65

were acquitted. In 2016, 1256 cases were pending, in only 33 cases trial got completed and out of

which only 11 were convicted and 22 were acquitted.33 The incompletion of trials in the majority

of cases indicates that the arrested persons had to spend long years behind bars merely because

the government has suspicion over them. Poor conviction rates of 27.3%,14.5% and 33%

respectively, and on the other hand surging acquittal rates evidently emphasize the vast abuse of

anti-terror laws. And how the government misapplies such laws under the garb of security threat.

However, the government goes deaf ears to such statistics, and to put the icing on the cake it

introduces bills such as UAPA 2019. That further lowers the probability of the government to

distinguish between law and order, public order, and security of the state. Which the courts have

considered being the most important step towards curbing the menace of misuse.

5. What will be the consequences of naming a person as a terrorist?

“Keep your eyes on the stars, but remember to keep your feet on the ground.”

Such centralized powers in the hands of the government have resulted in its ‘head in the cloud’,

completely ignoring what can be its practical reverberations on the ground. It is ironic that

predominantly the impact of such measures is felt by law-abiding citizens on account of

intrusions they make into individual liberties. Citizens of a democratic state do not expect their

governments to enact laws that turn into mere “scarecrow” for “birds of prey” to use as their

“perch.”34

29Hitendra Vishnu Thakur vs. State of Maharashtra (1994) 4 SCC 602. 30 Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 740. 31Judicial Response Towards Terrorism (May12, 2020,11:10PM),

https://shodhganga.inflibnet.ac.in/bitstream/10603/93639/6/chapter%205.pdf. 32Kartar Singh v. State of Punjab, (1994) 3 SCC 569. 33 Ministry of Home Affairs, National Crime Records Bureau, The Unlawful Activities (Prevention) Act,1967 34Supra note 31.

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When a person will be tagged as a terrorist by the government, he will be considered to be so in

the society even before a court convicts him, a permanent blot on the reputation of the person

would be fixed. “Right to reputation is a facet of right to life of a citizen under Article 21 of the

Constitution.”35 But this right would become only an inconsequential text for the victim of the

ploy of naming and shaming by the government. Also, if later this individual proves to be

innocent, how will the government repay or compensate for that? His family has already been

ostracized from society. What will be the recourse for the lifelong stigma which gets attached to

a person notified as a terrorist?

Media the so-called fourth pillar of Indian democracy, without thorough investigation and due

process will convict them in their courts of law. Watching the media acting such inconsiderately,

it is an essential question that what sort of pillars the Indian democracy rests on, it will not be an

unprecedented event if this democracy topples one day. Moreover, there are serious legal

consequences to it. Absence of bail or anticipatory bail provisions directly challenges the

guidelines of the Supreme court that “jail is an exception and bail is a norm.” The presumption

shifts and it is presumed by the courts that the charges are true. An overarching maxim that goes

across the entire criminal system that a person is “innocent until proven guilty” is turned upside

down i.e. “you are guilty unless and until you prove yourself innocent.”

6. Power of seizure without permission of the state police-

Section 25 of the UAPA act is amended and the Bill adds that if the investigation is conducted by

an officer of the National Investigation Agency (NIA), the approval of the Director-General of

NIA would be required for seizure of such property. This is antithetic to the foundations of

democracy in our country because it directly violates the principle of cooperative federalism. It

centralizes the power of policing. For example, if even an inspector of NIA wants to seize any

property in the state of Assam, then without even coordinating with the state police it can go

further and seize it. This exclusion of the state authorities especially from their own domain is

anti-federalism. Rather than making policies separately and those which only gives the Centre an

upper hand, cooperative federalism asks for a more collaborative approach by the Central

government.

b. The National Investigating Agency (Amendment) Bill, 2019

National Investigating Agency Act,2008 seeks to establish an investigating agency that

principally fights the menace of terrorism throughout India. This agency was formed by passing

the NIA bill in the parliament after the 2008 Mumbai terror attacks The parliament on 17th July

2019 passed the National investigation agency bill. This bill puts in two major amendments-

1. Designation of Special Courts-

The bill amends section 11 of the principal act empowering the central government to designate

“Sessions Courts” as Special Courts for the trial of scheduled offenses. Introduction of the

National Investigation Agency (amendment) bill and the Unlawful Activities Prevention

35Board of Trustees of the Port of Bombay v. Dilip Kumar Raghavendra Nath Nadkarni, (1983)1 SCC 124.

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(Amendment) bill synchronously in the parliament is not just a coincidence. Once both of the

bills are read in conjunction, it can be ascertained that they are interconnected. And that it was

not a matter of chance but just another crafty political manoeuvre.

Section 8 of the UAPA amendment bill alters section 43 of the principal act. It states that in the

case of the national investigation agency, now an officer of an inspector rank and the above can

investigate offenses under this act. Herein lies the problem, that the government has lowered the

bar especially for the officers of the NIA when on the other hand no police officer of the state

police below the rank of deputy superintendent can investigate in such cases. Previously it only

allowed an officer of the rank of DSP to investigate, which acted as a bar so that only

meritorious investigation takes place because the National investigation agency is for

investigation only special cases. But now the government through amending UAPA in such a

manner has insidiously tried to maximize its limits and bandwidth to investigate, as now it can

direct even an inspector of NIA for investigation.

However, the abovementioned power only results in discretionary investigation and prosecution

by the hands of the government and nothing else because, at the same time by amending the NIA

act, speedy judicial adjudication has been hindered. By amending section 11 of the NIA act the

central govt. has attained the authority to ‘designate’ trial courts as special courts. Where

previously the government had to ‘constitute’ a special court now it only ‘designates’ the

existing sessions court into a special court. This amendment is not helping the judiciary but in

turn, will only add to the piling up of cases in already overburdened courts. Therefore, on one

hand, the government has enhanced its discretion on the investigation (through UAPA 2019)

which will result in greater arrests and increased cases while on the other hand by not

constituting new courts but only by designating existing overburdened sessions courts as NIA

courts (through NIA 2019), it is denying the right to a fair and speedy trial and has taken

objective judicial adjudication for granted. Thus, the government under the garb of these

amending bills is strengthening its discretional powers in prosecution and investigation but

decreasing the probability of an accused of getting upright justice, resulting in disturbing the

balance of the criminal justice system.

2. Extraterritorial jurisdiction of the NIA-

The bill by amending sections 1(2), 3(2) and 6 grants the central government the power to order

the officers of the NIA to investigate and register scheduled offenses committed even outside

India. Prima facie this seeks to strengthen the powers of the NIA but is not of much substance

and end up granting wide powers to the government. The bill aims to alter section 1 by inserting

sub-clause (d) to clause 2 which states that this act also extends- (d) “to persons who commit a

Scheduled Offence beyond India against the Indian citizens or affecting the interest of India.”

Giving extraterritorial jurisdiction to this agency is not a matter of concern but adding phrases

like “affecting the interest of India” is not only a vague proposition but also opens a pandora box

of ambiguities. We have other well-constructed paradigms that are used in these types of

legislations e.g. “affecting the national security of India”, “affecting the sovereignty of the

country” or “against the integrity of India.” The problem is that this expression is not focused or

well-defined. What does “affecting the interest of India” really suggests? What are its yardsticks?

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Hence, if not altered this phrase will open an ocean of unrestricted powers in the hands of the

government which will have hazardous repercussions such as blatant misuse.

Yet another provision of the amending bill which seems innocuous but is cleverly put. It inserts

clause (8) To section 6 and states— (8) “Where the Central Government is of the opinion that a

Scheduled Offence has been committed at any place outside India to which this Act extends, it

may direct the Agency to register the case and take up investigation as if such offence has been

committed in India.” The power given to the Central government to direct the “registration” of

the case gives inherent discretion for the prosecution and investigation to the government. This

implies that the government itself can have a selective view of cases to be investigated by NIA. It

certainly violates the concept which we have imbibed from England that the prosecutorial

discretion of the constable is supreme. It means that the superiors or even the Government cannot

interfere in the prosecutorial discretion of the investigating officer. Therefore, by this

amendment, the government will have unabated authority to direct registration of cases in which

“it believes” to be against the “interests of India.”

Aspirations of making this agency a globally proclaimed investigative unit are appreciated.

However, what will happen when before permitting NIA foreign countries ask for its credibility?

By asserting that since 2014 the NIA has registered 195 cases out of which in only 15 cases,

judgments are being passed, permissions to access into foreign territories seem uncertain. The

government when it states that the NIA has secured a 100 percent conviction rate convicting all

15 cases out of 195 cases registered, doesn’t sound meritorious but surely comic.

NIA as a tool for discretional prosecution in the hands of the government.

Abovementioned assertions against NIA are not hollow, through highlighting the modus

operandi of the NIA in previous cases, an inference can be drawn as to how the government has

used this agency for discretional prosecution. One of the most controversial cases investigated by

the NIA is the Samjhauta express case. The concluding commentary by the special judge of this

case, Justice Jagdeep Singh, clearly highlights the manipulated prosecution of NIA. He states- “I

have to conclude this judgment with deep pain and anguish as a dastardly act of violence

remained unpunished for want of credible and admissible evidence. There are gaping holes in the

prosecution evidence and an act of terrorism has remained unsolved”. Also, that “the best

evidence, which could have clinched the issue, was withheld by the prosecution.”36

Moreover, former special director general of the NIA, N. R. Wasan in criticism to the NIA said -

“The NIA officers involved in the investigation of the Samjhauta Express blast case are

responsible for the poor job they have done. This is quite evidently hurting India’s fight against

terror, and we have to fix accountability — either on the officers for the poor investigation or the

poor prosecution.”37

Instances have also come up where the investigation and prosecution in selective cases were tried

to be influenced by ‘superior authorities’ Former NIA prosecutor in the 2008 Malegaon blasts

case, Rohini Salian in an interview has said that the agency told her to go soft in the case after

36 Naba Kumar Sarkar v. National Investigation Agency 2011 SCC P&H 11399. 37 NIA judge on Samjhauta prosecution: Does evidence cover-up hurt India’s war on terror? The Print (29 March,

2019 7:38 pm), https://theprint.in/talk-point/nia-judge-on-samjhauta-prosecution-does-evidence-cover-up-hurt-

indias-war-on-terror/214367/.

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the new government took over at the Centre.

“An NIA officer approached me immediately after the change of government and told me in

person to go soft. On June 12, he approached me for the second time and said I would no longer

be appearing in the case.”38

This is also an interesting fact that since past few years some of the terror cases have taken

unexpected, though not surprising turns. In Samjhauta Express trial39, Swami Aseemanand was

granted bail by the Punjab and Haryana High Court. The bail was not opposed by the prosecuting

agency which was the NIA. It also gave a clean chit to Colonel Purohit who was earlier charge-

sheeted by the Anti-Terrorism Squad (ATS) in the case. In 2007 Ajmer blast trial, Aseemanand

was acquitted by a local court of Jaipur in 2017, senior RSS functionary Indresh Kumar and

Sadhwi Pragya were given a clean chit by the NIA. In Malegaon case40, the NIA again dropped

Sadhwi Pragya’s name from its charge sheet, giving her a clean chit. In 2017, the Bombay High

Court granted her bail. In the same year, Colonel Purohit, prime accused in the case, also got bail

from the Supreme Court and re-joined the army. The Mecca Masjid blast case was the last and

the most important part of the series of trials, and it has resulted in acquittals too. A decade after

the first arrests were made, all the key people, many of whom would have otherwise received

death penalties for the role they played in the violence, are free.

A quick look at the legal status of these cases and the status of all the prime accused highlights

two things, first, it proves that there is harsh misuse of anti-terror laws because the prime accused

in these cases were being finally acquitted without charge. This definitely proves the above

contentions that how these laws are being misused on innocent lives such as Sadhwi Pragya and

Swami Assemanand. Second, if the laws are not being misused in these cases then it evidently

proves the great reluctance of the government in convicting selective terror accused.

Therefore, as substantiated above, the amendments proposed by the UAPA and the NIA bill

2019 undeniably aim towards granting discretional power to the government. Through these

amendments, the investigation becomes the handmaiden of the government in power,

prosecution becomes the command-driven performance and therefore, the justice which should

be meted out to a person is denied.

III. Conclusion

It is an established fact that there are no dissimilar voices as far as tackling terrorism is

concerned. 1.38 billion people of this country stand in solidarity against terrorism. Thus, the

purpose of these highlighting arguments is not to thwart the investigations or convictions of

terrorists but to ensure that the investigations are fair and impartial, to make sure that the

rudiments of democracy remain intact. Undoubtedly so far, the principles of rule of law have

been majorly upheld in the anti-terror legislations of India. The national security policy of our

38 Rohini SalianNIA acted like a “shield' to accused in Malegaon case, The Economic Times (Jun 30, 2016, 08.56

PM), https://economictimes.indiatimes.com/news/politics-and-nation/nia-acted-like-a-shield-to-accused-in-

malegaon-case-rohini-salian/articleshow/52993816.cms. 39 Naba Kumar Sarkar v National Investigation Agency 2011 SCC P&H 11399. 40 Sadhwi Pragya Singh Thakur v. State of Maharashtra, (2011) 10 SCC 445.

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country has always striven for zero tolerance for terrorists and towards enacting procedural

safeguards to minimize the encroachment on liberties and to maximize the edifice of rule of law.

These safeguards include provisions relating to protection of witnesses, for example section 44

of the UAPA Act 1967 provides for the court not to disclose identity and address of the

witnesses. Also, it provides for the proceedings to be held in camera. Moreover, for speedy and

upright dispensation of justice in terror cases, the National Investigation Agency Act renders the

trial for such offences to be conducted by special courts. Anti- terror legislations in India also

enable mechanisms of appeals against; the order of forfeiture of property, the judgement of the

special courts and also against order of refusal of bail.

However, sometimes the governments enact certain laws such as the UAPA and NIA bills 2019,

that enables the government to “tag a person as a terrorist” without even a due process (UAPA)

and to prosecute individuals merely “if it is believed” that their acts are against the “interests of

India” (NIA). Such amendments to the anti-terror legislations directly go antithetic to the

foundations of a democratic state and to the subsistence of rule of law. Because “protection and

promotion of human rights under the rule of law is essential in the prevention of

terrorism.”41Therefore, there is a need to conceptualize these anti-terror laws in terms of what

they purportedly combat, and what they actually combat because India’s experience with these

laws manifests that what they actually protect is the ruling dispensation’s ability to bypass

human rights. If these amendments are not rectified then sooner or later, they will result in a

soulful requiem to liberty. Hence the authors propose the following rectifications-

To repeal the amendment to the UAPA Act which confer power to the government in

naming a person as a terrorist since there are already numerous provisions for prosecuting

individual members of an unlawful organization.

Amend the phrase such as “affecting the interests of India” since ‘interests’ of India is not

properly defined and can lead to gross misuse. There are many well defined phrases to be

used such as “affecting the national security of India” or “affecting the sovereignty of the

country”.

Refrain from using phrases such as ‘if the government believes’ because it does not have

a determined focus and end up giving unbounded powers to the government. The

government can prosecute even a silent protest or dissent only if it ‘believes’ it to be

against the ‘interests’ of India.

Not to delegate sessions courts as special courts as they are already clogged up with

arrears of pending cases. But to constitute additional special courts with fresh judicial

appointments.

Not to empower an officer of an ‘inspector’ rank of the NIA to prosecute scheduled

offences since such offences need to be prosecuted only by specific rank of officers such

as DSP (as in the case of the state police).

A scheme of compensation should be constituted for those who are wrongly

incarcerated.

The central government should initiate mechanisms that provide for better administrative

and judicial oversight to scrutinize investigations and prosecution of terror related cases.

Establish a relevant committee to oversee the human rights violations during the

prosecution of an accused in terror cases.

41 People's Union for Civil Liberties v. Union of India, AIR (2003) SC 2363.

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The government should take an active step towards empowering NCTC- National

Counter Terrorism Centre and NATGRID- National Intelligence Grid, that are the other

two limbs of the tripod on which anti-terrorism rests upon.

Lastly, the criticism which the authors have brought forward, if some of it gets registered with

the government then it's not harmful but will result in India being a better democracy. But if they

are avoided, then to that extent the world's largest democracy, despite what its citizens claim,

would merely be a façade for a non-democratic rule. Therefore, to restrict this country from

becoming a moribund society and to enable it to grow holistically, individuals should not stop to

defend their rights and to interject the government on its erroneous decisions. Because as Dr. B.R

Ambedkar said- “Lost rights are never regained by appeals to the conscience of the usurpers, but

by relentless struggle.”

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Female Genital Mutilation: Evils Of Bygone Era

Aakriti Sharma and Anmol Chitranshi1

Abstract

Women have been subject to discrimination in Indian patriarchal society from time

immemorial and the scars of such harsh practices are prevalent even now. Circumstances and

superstitions have time and again placed the Indian women at the receiving end of undue

duress and at times, inhumane hardships. The government has also taken steps from time to

time to achieve its goal of equality among its people. But there are still many horrendous

practices prevalent in India which needs to be eradicated from the society by all means and

requires expedient attention from the Government of India. One among such draconic

practices is that of Female Genital Mutilation, which involves full or partial removal of

external genitalia or causing injury to female genital organs. This barbarian practice is seen

most commonly among the Bohra community in India. Although, there are no apparent

benefits from this procedure, the women become victim to both short- and long-term health

repercussions. This practice is not illegal per se because there currently exists no law in India

barring it. As a result, the criminal justice system would not be able to press accountability

against the people who are involved in these horrendous practices. The researcher, through

this paper, intends to highlight the magnitude of this problem in India, and how the victims

are largely left unheard. The paper also seeks to suggest certain counter measures against this

issue while keeping in mind the violation of human rights suffered by the women who have

undergone such procedures.

Keywords: FGM, Bohra Community, Health, Constitutional rights.


I. Introduction

Women from times immemorial have been subjected to oppression and torture, creating an

impression in the minds of most people around the globe that females are somewhat inferior to

their male counterparts and thus, do not have the right to choose what is right for them. Even during

today’s modern times, there are communities and sections of the society which do not provide

basic survival rights to women whereas men of the same society enjoy the same. This problem

aggravates if the female is a minor as the society presumes that she will not able to take right

decisions for herself and is incapable of deciding what is better for her future. This is one of the

most common reasons as to why it is majorly practised on girls aged below 15 years. The society

performs the gruesome act by wrongfully using the minor age of a victim girl as a protective shield.

Female Genital Mutilation/Cutting (hereinafter, ‘FGM/C’) includes all procedures resulting in

injuring the female genital organs for reasons of culture, religion, tradition and other non-medical

purposes. The procedure includes a partial or total removal of the external female genitalia. The

reports issued by WHO, UNICEF and UNFPA in 2007 shows that the practice is carried out mostly

on girls between the ages of 1 to 15 years.2 As per joint statement of WHO/UNICEF/UNFPA,

1Aakriti Sharma, P.G., Christ University, Bengaluru; Anmol Chitranshi, U.G., Jamia Millia Islamia University, New

Delhi. 2United Nations Population Funds and United Nations Children’s Fund, UNFPA-UNICEF Joint Programme on Female Genital Mutilation/ Cutting: Accelerating Change, UNFPA (Mar. 30, 2020, 8:00PM),

https://www.unfpa.org/publications/unfpa-unicef-joint-programme-female-genital-mutilationcutting-accelerating-

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http://www.unfpa.org/publications/unfpa-unicef-joint-programme-female-genital-mutilationcutting-accelerating-




FGM is off our types but the most commonly adopted types are Types I and II which account for

85% of all procedures.

According to the World Health Organisation (WHO) classification,3Type 1 is known as

Clitoridectomy, wherein the clitoris is removed partially or totally. Type 2 classification involves

total or partial removal of the labia minora and clitoris either with or without removing the labia

majora. Type 3is also referred to as infibulation, which means that a covering seal is created by

narrowing the vaginal orifice and by cutting the labia minora or labia majora, with or without

removal of clitoris. The last classification, i.e. Type 4, involves procedures like pricking, piercing,

scraping, etc and other injurious procedures which can harm the female genitalia.

Around 100 to 140 million girls and women in the world have undergone the procedure and about

3 million are estimated to be at the risk of being cut every year.4It is most common in 30 countries

of Africa and some countries in Asia (particularly in the Middle East) and Latin America, as well

as among migrants from these areas.5

As per WHO, the act of removal of clitoris and labia minora has no health benefits unlike male

circumcision. In-fact, it could be harmful to girls and women, not only physically but also

emotionally. With extremely limited infrastructure and instruments, cutting is performed by un-

trained midwives who are in ept in handling any kind of emergencies caused by the process. The

immediate consequences of the practice include acute pain and excessive bleeding, difficulty in

urination etc. This could further lead to infections, injury to the surrounding tissues, not to mention

the mental trauma that the child would go through. In 2012, Priya Goswami, in her documentary

film “A pinch of Skin”, quoted an instance that during the process, a seven-year-old girl moved

her hand towards her genitalia. The un-trained midwife accidently cut the fingers of the girl. Due

to the lack of expertise and facilities to handle the emergency situation created, the girl lost her

finger and had excessive bleeding. In some cases, due to severe bleeding, the child could go

through haemorrhagic shock and neurogenic shock, ultimately leading to death.6

In the long- run, there could be complications such as urinary and menstrual problems, infertility

and painful coitus. Right before marriage or immediately after marriage, they undergo another

surgery (de-fibulation and re-infibulation) to remove the stitched opening of the genital area.

During birth, the scar tissue might tear, due to which excessive bleeding could take place. In some

ethnic communities, immediately after birth, they stitch it back which is an even more painful

process. In a study done by WHO and multiple countries, it is observed that due to this practice,

women face increased risk of adverse events during childbirth. They further concluded that new

change. 3Types of Female Genital Mutilation, World Health Organisation (Mar. 30, 2020, 8:00 PM),

http://www.who.int/reproductivehealth/topics/fgm/overview/en/. 4 OHCHR, UNAIDS, UNDP, UNECA, UNESCO, UNFPA, UNHCR, UNICEF, UNIFEM & WHO, Eliminating

Female Genital Mutilation: An interagency statement, World Health Organisation (Mar. 30, 2020, 8:00 PM),

https://apps.who.int/iris/bitstream/handle/10665/43839/9789241596442_eng.pdf?sequence=1. 5United Nations Population Funds, Implementation of the International and Regional Human Rights Framework for

the Elimination of Female Genital Mutilation, UNPF (Mar. 30, 2020, 8:00 PM),

https://www.unfpa.org/sites/default/files/pub-pdf/FGMC-humanrights.pdf. 6Manfred Nowak, Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment

or Punishment, Manfred Nowak: mission to Togo, UN Human Rights Council (Mar. 30, 2020, 8:00 PM),

https://www.refworld.org/docid/4795c8b22.html.

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http://www.unfpa.org/sites/default/files/pub-pdf/FGMC-humanrights.pdf

http://www.unfpa.org/sites/default/files/pub-pdf/FGMC-humanrights.pdf

http://www.refworld.org/docid/4795c8b22.html

http://www.refworld.org/docid/4795c8b22.html



born babies are negatively affected due to their mutilated mothers. Furthermore, on an average,

there were additional casualties of approximately 1-2 infants as a result of genital cutting.

II. Practice of Female Genital Mutilation in India

For hundreds of years, this practice has been followed by many communities of Christian, Jew and

Muslim religion. Among the Muslims, the Bohra community is one of the largest communities

around the world to practice FGM.7Today, there are differences in religious practice, traditions,

and customs, often related to its jurisprudence. Although all the sects of the Muslim community

regard the holy book of Quran to be divine in nature, both Shia as well as Sunni have their different

opinions on the hadith.8 Bohra Muslims are part of the Ismaili branch of the Shia Muslims. In

addition to India, they are found in Qatar, Yemen, Egypt, Saudi Arabia, Indonesia and other North

African and South East Asian countries.

India is a culture driven country which has been in existence since the beginning of civilisation

and has innumerable cultures and traditions which forms the base of the most diverse country in

the world. Many of the traditions followed in India today have been trickled down for generations

for thousands of years. Some of the practices have scientific reasons, however, most do not. It has

been observed that cultures and traditions in the modern-day Indian society are very important and

the community, on several occasions, condemns those who do not comply with them. Sometimes

they are emotionally forced to follow their traditions, even if it is against their wish. Similarly, the

sect of Bohra Muslims, which is mostly situated and settled in areas of Maharashtra and Gujarat,

get their roots from a heist priest of Bohra Muslims hundreds of years ago when he shifted to

Gujarat from Yemen. The term “Bohra” has also been derived from Gujarati language which

means “the traders”. As the pages of the calendar passed, the community gradually settled in Surat

about 150 years ago. The way the people of this community have evolved over these years is a

matter of question as the community is highly rigid about their rituals and do not have a dynamic

approach towards the changes of the modern-day world. It is a very closed community which does

not welcome the entering of an outer person into their community as it can be rightfully said that

a person cannot become a Bohra until and unless he is born in the community. A person is not

allowed to convert himself into or out of the community. Marriage outside the community, even

to the other sect of Muslims, is highly condemned upon. The level of rigidity is clearly evident

from the fact that the place of worship meant for Bohra Muslims is separate and different from

that of other sects of the Muslim community. It is preposterous to see that a community which is

in general a very educated and rich community indulges in an orthodox practice like Female

Genital Mutilation and makes it obligatory for their children to undergo the procedure no matter

how gruesome and pointless it is and continue to be justified by baseless and meaningless traditions

which only lead to lifelong scarring of the child.

It is necessary to note that even the secular matters in daily lives of people in this community are

totally controlled and managed by Dai. There are many people who have faced social flak and

7United Nations Population Funds and United Nations Children’s Fund, UNFPA-UNICEF Joint Programme on

Female Genital Mutilation/ Cutting: Accelerating Change, UNFPA (Mar. 30, 2020, 8:00PM),

https://www.unfpa.org/publications/unfpa-unicef-joint-programme-female-genital-mutilationcutting-accelerating-

change. 8 Paul T Hellyer, The Money Mafia: The World in Crisis (Credos, 2014).

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boycott by the community, as a consequence of them and their families standing up against this

gruesome act which is considered to be an important religious practice in the Bohras from times

immemorial. The main problem is that the victims are extremely afraid to raise their voice against

this Gordian knot as it may result in them being thrown out of the community. The exclusion

extends to their children being denied marriage because of them raising their voice against the

practice and are also often denied the right of being buried in the community burial ground.9As a

consequence, most women bear with this dreadful practice silently without raising any objection

even within their families, proving to become a stimulus for the act to flourish.10

The voices of people objecting the practice are easily gagged by using coercive forces of social

boycott, undermining the victims of bringing about change. There is a dire need to consider the

available legal options as there are no signs of female genital mutilations being done away with in

the community. Presently, Syedna Muffadal Saifuddin is the head of the Bohra community, who

is also, either directly or indirectly, involved in issuing religious sanctions which act as a force

upon the people to perform the gruesome practice upon their daughters. There are nearly more

than half a million females who have undergone this drivel procedure and hundreds of thousands

continue to do so. The procedure is usually conducted by untrained mid-wives with no proper

equipment. The equipment is not properly sterilized and there is no way to stop excessive blood

loss due to the lack of infrastructure.11In certain places, few doctors attached to the Bohra

community perform this procedure, even though they are aware that FGM has no scientific benefit,

but only potential threat to the girl child, both mentally and physically.

In Sunita Tiwari v. Union of India &Others,12 the Supreme Court came across the issue of FGM.

The Court till now has passed an order, holding that India is a signatory to the UN Conventions on

the Rights of Child and the Universal Declaration on Human Rights. The Writ Petition urges the

Apex Court to criminalize the practice in India as it is in violation of the Fundamental rights. It is

being contended before the Court to regard FGM as an offence until any provision is incorporated

under the India Penal Code. The court considered this as an act of inhumanity and violation of

Article 21 of the Indian Constitution, which gives Right to Life and Personal liberty. The Hon’ble

Apex Court also observed that FGM should be regarded as an ‘offence’ under the Indian Penal

Code. By this statement, the Court has made it clear that FGM is an offence in India and State

police are directed to take actions against the wrongdoers.

However, The Dawoodi Bohra Women for Religious Freedom (DBWRF) said that practice is

wrongly called as FGM and claim it to be circumcision. Further, they claimed that the practice is

not a violation of Article 21 as it is a 1400 years old practice and is an integral part of the society.

It is backed by religious believers and values and is practiced as a result of the various steps,

commands and directions issued by the competent religious authorities. Rather, if it is

criminalized, then it would be violation of Article 25 and 26 of the Indian Constitution.

9Gazala Parveen, Female Genital Mutilation In India, IP Leaders (Mar. 30, 2020, 8:00 PM),

https://blog.ipleaders.in/female-genital-mutilation-india/. 10Indira Jaising, Female Genital Mutilation- Guide to Eliminating the FGM Practice in India, Lawyers Collective

(Mar. 30, 2020), https://www.lawyerscollective.org/. 11World Health Organization, Female Genital Mutilation-student manual, W.H.O. (Jan. 24, 2020, 04:00 PM),

www.who.int/frh-whd. 12Sunita Tiwari v. Union of India, W.P. (C) No. 286/2017.

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With this procedure, the girl will not be able to attain sexual pleasure and will not indulge into any

sexual relationship with anyone before her marriage which will ensure her loyalty towards her

husband. This is considered to be the main reason why the community undergoes this practice, as

per them. Hence, this act is a symbol of purity for girls of the Bohra community according to their

traditions and cultures. However, the purpose of genital mutilation is not fully attained and women

experience orgasms even after they have undergone mutilation.13It is a possibility that women who

have gone through genital mutilation in their lifetime may experience pleasure and can enjoy the

sexual relationships which makes the act even graver as it imposes a compulsion upon young girls

to bear unimaginable pain and life risks for no reason. Just to satisfy the patriarchal society, women

undergoes these torturous practices in the name of keeping them “pure” and away from sexual

pleasure. Whereas, on the other hand, there are no such moral and societal restrictions upon the

male child.

According to The National Commission for Women, social development and growth of a nation

can only be achieved by empowering women of that nation and eradicating violence against them.

In 2017, NCW received a petition which was signed by around eighty thousand people to end

FGM in India.14 According to the commission, FGM is a violation of an individual’s right on her

own body. It is an infringement of her basic rights. But till now, the Legislature has not come up

with any law penalising the act, neither has the Court issued mandatory guidelines. The authority

can play an important part in the fight as it can start from its own office, by educating women and

spreading awareness about the prevalence of the practice.

The all India Muslim Personal Board, although, has a different view on the subject. In 2020, while

submitting response in a case,15 the board has clarified its stance by stating that restriction of

women on entering in mosque, practicing FGM/C etc. is a religious matter which is guided by the

organisation and its member and that it is not appropriate for the Court to interfere in the matter.

They also said that Islam doesn’t restrict women from offering prayer in a mosque, but gives them

an option to pray at any place they want. The board can highly influence people of their community

to ban this practice by interpreting the holy text and educating them, but to no avail yet.

III. Legal Regulations Governing Female Genital Mutilation

There are as such no explicit legal regulations to control the practice of genital mutilations among

girls. But the laws provide protection to young girls impliedly through various provisions under

different Acts. The Constitution of India explicitly states that a person shall not be deprived of his

right to life and personal liberty except and according to procedure established by law.16It provides

a fundamental right to all the citizens to live a dignified life. Life, bereft of liberty would be without

honour and dignity, and it would lose all significance and meaning, when life itself would not be

13Lucrezia Catania & Omar Abdul Cadir, Pleasure and Orgasm in Women with Female Genital Mutilation/ Cutting

(FGM/C), JSM 1666, 1675 (2007). 14The fight against female genital mutilation, Change.org (Jul.21, 2020, 1:30 PM), https://www.change.org/l/in/the-

fight-against-female-genital-mutilation. 15Yasmeen Zuber Ahmad Peerzade v. Union of India, W.P. (C) No. 472/2019. 16India Const. art. 21.

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worth living.17 That is why liberty is called the very essence of a civilised existence.18Liberty is

necessary but it should be controlled keeping in mind the interest of society and social interest

must not deprive individual liberty19.

Liberty must be paired with virtue for ensuring progress and social stability. Man is a rationale

individual who has to live in harmony with equal rights of others and more differently for the

attainment of antithetic desires. Life, liberty and security are the most prized possessions of an

individual. The urge for freedom is a feeling which runs through the veins of every human being

is a very natural phenomenon for a person20. Respect for life, liberty and property is not merely a

norm or a policy of the state but an essential requirement of any civilised society.21One of the most

valuable fundamental rights is individual liberty which is guaranteed by the Constitution of every

democratic country. Just and effective administration of justice is the cornerstone of a society and

is an essential component of public confidence in the institutions of the government. The term

“person” mentioned in the Constitution of India means that everyone has the basic rights provided

by the law of the land which cannot be violated by any governmental authority and cannot be taken

away from a person. Field J. in the case Munn v Illinois,22 has rightfully observed that the concept

of life is not mere animal existence but the inhibition of its deprivation extends to all limbs and

faculties by which life is enjoyed.

The Constitution also prohibits any discrimination on the basis of religion, race, caste, sex or place

of birth and the state can also make any special provisions for children and women,23 but so far

there have been no law which prevents people from performing genital mutilation on young girls.

The main idea behind indulging into the commission of this act is discriminatory on the basis of

the gender of the child.

Moreover, with the aim of giving state the responsibility of governance of the country, The

Directive Principles of State Policy (DPSP) were inserted in the Constitution of India under Part

IV. In order to promote the welfare of the people of the state, the Constitution obligated the state

to take positive steps for state and achieve democracy in all sense. It provides that the state must

ensure that the delicate age of children is not abused24 and they must be given opportunities and

facilities to develop in a healthy manner and in conditions of freedom and dignity and they should

be protected against exploitation and against moral and material abandonment.25Young girls are

being mutilated against their will which leaves long lasting mental and physical effects on their

health. It further states that the state shall try for early childhood care and education for children

below the age of six years.26However, as previously pointed out, according to the World Health

17Hukam Chand v. State of Uttar Pradesh, (2001) Misc. Single No. 1019; Vishnu Sahai v. State of Uttarakhand, (2008)

Special Appeal No. 739 of 2018. 18H.R. Khanna, Delhi Bar Council Library Inauguration, EBC-India (Nov. 12, 2019, 01:30 PM), https://www.ebc-

india.com/lawyer/articles/75v2a1.htm. 19Kartar Singh v. State of Punjab,1994 S.C.C. (3) 569. 20Siddharam Satlingappa Mhetre v. State of Maharashtra and Ors., 2011(1) S.C.C. 694. 21Dr. M. Asad Malik, Government, Governance, Lynching and Rule of Law, LiveLaw Jul. 5, 2017, 11:04 A.M.),

https://www.livelaw.in/government-governance-lynching-rule-law/. 22Munn v. Illinois, 94 U.S. 113 (1877, U.S. S.C.). 23India Const., art 15, cl. 1, 3. 24Id. At art. 39, cl e. 25Id. At art. 39, cl. f. 26Id. At art. 45.

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Organisation, the act of genital mutilation is performed on girls aged between 4 to 15 years.27The

DPSPs have been impliedly protecting the interests of children with the help of its provisions and

tries to impose obligations upon the government to try for providing better infrastructure for

children for their brighter futures but the practice of FGM violates every such notion of the law of

the land.

The Indian Penal Code of 1860, on the other hand, provides that any act which has the capability

to endanger life or which can cause the sufferer to be in severe bodily pain during the space of 20

days, will be considered as ‘Grievous Hurt’.28 If a person causes hurt which he intends to cause or

he knows himself to be likely to cause grievous hurt is said to have committed it voluntarily29

which is punishable with imprisonment which may extend to seven years and the person shall also

be liable to fine.30 If in case there is an act by a person causing grievous hurt by means of an

instrument used for shooting, stabbing or cutting, it shall be punishable with imprisonment of life

or with imprisonment for a term which may extend to 10 years and the person shall also be liable

to fine.31 The Code also provides that any act which has been done in a negligent manner so as to

endanger human life or personal safety of others will be punishable with imprisonment for three

months or with fine which may extend to ₹250 or with both.32It also provides that if a person

causes grievous hurt to any person by committing any act in a negligent manner which has the

capability of endangering human life shall be punishable with imprisonment of 2 years or fine

extending to ₹1000 or both.33

The victim girl child is wrongfully confined34 in a place where the act is performed upon her in a

forceful manner knowing the fact that the act may endanger the life of the child. They are restrained

in those spaces so that they cannot escape from the dark dingy rooms. The Code makes the act of

wrongfully restraining the person from proceeding beyond certain limits punishable with

imprisonment of 1 year or fine extending to ₹1000 or both.35

Similarly, the vision of the Commission for Protection of Child Rights Act, 2005 is that, in

accordance with the Constitutional framework, law, policy and UNCRC, each and every child

should enjoy their basic and inalienable rights, that is, survival, development, and protection across

the country.36It is ensured by the Act that none of the laws, policies, programmes and

administrative mechanisms are in conflict with the child rights, as enshrined in the Constitution of

India and in the United Nation Convention on Rights of the Child, which India ratified in

1992.37The function of the Commission is to look into all factors that prohibit a child from enjoying

her rights and check whether a child is affected by terrorism, communal violence, riots, natural

27World Health Organization, Female Genital Mutilation, World Health Organisation (Mar. 30, 2020, 8:00 P.M.),

https://www.who.int/news-room/fact-sheets/detail/female-genital-mutilation. 28Indian Penal Code, 1860, No. 45, Acts of Parliament, 1860, s. 320. 29Id. At s. 322. 30Id. At s. 325. 31Id. At s. 326. 32Id. At s. 336. 33Id. At s. 338. 34Id. At s. 340. 35Id. At s. 342. 36 1 Jamir Ahmed Chaudhary, Anti- Natural Framework-I & Its Consequences (1st ed., Notion Press, 2019). 37The National Commission for Protection of Child Rights, Citizen’s Charter of National Commission for Protection

of Child’s Rights, N.C.P.C.R. (Aug. 27, 2019, 7:00 P.M.), https://www.ncpcr.gov.in/.

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disaster, domestic violence, HIV/AIDS, trafficking, maltreatment, torture and exploitation,

pornography and/or prostitution. It has the power to recommend appropriate remedial

measures.38The act of FGM is nothing short of violence, maltreatment and torture upon the young

girls for no scientific reasons. The traditions and customs of the community have completely

shadowed the level of enormous cruelty – both physically and mentally on a girl child.

The Protection of Children from Sexual Offences (POCSO) Act, mark any insertion of any foreign

object into the vagina of a girl, by any person on any chid, as penetrative sexual assault.39

Precedence has established that the penetration, under this Act, need not to be complete.

Punishment of imprisonment for a term not be less than seven years but which may also extent to

imprisonment for life and shall also be liable to fine for the act of penetrative sexual assault is

provided under the Act.40

The Act of penetrative sexual assault on a child using any deadly weapon41or any penetrative

sexual assault which causes grievous hurt or causes bodily harm or injury to the sexual organs of

the child42 or any penetrative sexual assault on a child who is below the age of 12 years43is

punishable with rigorous imprisonment for a term not be less than 10 years which may extent to

imprisonment for life and shall also be liable to fine.44

According to the Act, a person shall be punished with imprisonment for one half of his life or one

half of the longest term of imprisonment or with fine or both, if he attempts to commit any offence

and does any act towards the commission of the offence.45

IV. International Approach Towards Tackling the Problem o FGM

NGOs play a vital role in ensuring that no Fundamental Right of a citizen is violated. They conduct

extensive research, funded by many organisations and mostly victims. There are many charities,

campaigns and organisations which are moving heaven and Earth towards the eradication of

FGM/C from all over the globe.28 Too Many is a charity working in region of Africa and focuses

on 28 nations in the African subcontinent regarding the awaking people about the ill effects of this

practice. Similarly, The African Women’s Organisation is an NGO which also works extensively

in the African countries in order to decrease the practice. The fight against FGM is now moving at

a global level, and most of such organisations are mainly working in the United States of America

and the United Kingdom. With a vision to decrease the practice in European regions, “END FGM

European Campaign” has been started by the European Union which is supported by Amnesty

International at every level. In Austria, FGM-HILFE is an organisation which supports the

programs of Al Bakara Foundation in Somaliland and helps in educating people about FGM in

various regions of Austria and Italy. GAMS, in France, works with the victims of Female Genital

Mutilation, forced child marriages, gender based violence, etc. On the other hand, in Sweden, there

38 Commission of The Protection of Child’s Rights Act, 2005, No. 4, Acts of Parliament, 2006, s. 13(d). 39Protection of Child from Sexual Offences Act, 2012, No. 32, Acts of Parliament, 2012, s.3. 40Id. At s. 4. 41Id. At s. 5(h). 42Id. At s. 5(i). 43Id. At s. 5(m). 44Id. At s. 6. 45Id. At s. 18.

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is an NGO named RISK which works towards to end FGM from grassroots’ levels of the society.46

One such organisation in India, fighting for the rights of young girls is Sahiyo. Aiming to empower

the Asian communities against genital cutting, ‘Sahiyo’47 conducted an International Online

Survey of Bohra Women for the first time in India. They want to end the practice in India by

creating positive social change with the help of awareness, education and collaboration which must

be based upon community involvement.48Many such NGOs around the world have joined hands

to fight for the rights of children and women, and to recognize the significance of her right to

consent and autonomy over her own body.

Emphasising on the current need for concerned actions in section like health, education, finance,

justice and women affairs, World Health Assemble, in the year 2008, passed a resolution to

eliminate FGM.49 Its data and survey reports reveal that between 2015-2030, around 68 million

girls are at high risk of this practice in the world. As a result of this resolution, it has been decided

that the 6th day of February, 2019 will be marked as International Day of Zero Tolerance for Female

Genital Mutilation.

The first ever Convention, which was convened at the world level with an intention to make it

obligatory upon the countries to work in compliance of it, was the Istanbul Convention. The main

aim of the Convention was to protect the victims from any kind of violence and eradicate the

practice of FGM by creating universal legal framework.50Female genital mutilation, forced

marriage, etc. are the kind of violence which are defined and criminalized by the Convention. It

gives powers to the government agencies and NGOs to monitor and report about the practice.

Signing and ratification is not restricted and can be done by any state in the world, irrespective of

it being a member of the Council of Europe or not.51 Article 38 of the Council of Europe

Convention on preventing and combating violence against women and domestic violence also

defines Female Genital Mutilation.52 It provides that legislatures will take all the necessary steps

to criminalize FGM. Article 61 provides that the victim of the violence, the women who need

protection and who might be at high risk of being subjected to torture, cruel and degrading

treatment or punishment, shall not return under any circumstances to the country of oppression

and legislative measures must be taken to protect the victim.53On 7th February 2018, the European

46Regina, 16 Organisations, Charities and Grassroots Groups Working to Stop Female Genital Mutilation, The Pixel

Project (Mar. 30, 2020, 8:00 P.M.), https://16days.thepixelproject.net/16-organisations-charities-and-grassroots-

groups-working-to-stop-fgm/. 47Mariya Taher, Understanding Female Genital Cutting in the Dawoodi Bohra Community: An Exploratory Survey,

Sahiyo (Mar. 30, 2020, 8:00 P.M.), https://sahiyo.com/. 48Christina Julios, Female Genital Mutilation and Social Media (1st ed., Routledge, 2018). 49 World Health Organization, Female Genital Mutilation, World Health Assembly (Mar. 30, 2020, 8:00 P.M.),

https://apps.who.int/iris/bitstream/handle/10665/23532/A61_R16-

en.pdf;jsessionid=8A47296FE028AC584F06B0020AF5B697?sequence=1. 50 Amnesty International & The Council of Europe, Council of Europe Convention on preventing and combating

violence against women and domestic violence (Istanbul Convention), End FGM European Network (Mar30. , 2020,

8:00 P.M.), https://www.endfgm.eu/resources/international/council-of-europe-convention-on-preventing-and-

combating-violence-against-women-and-domestic-violence-istanbul-convention/. 51Id. 52The Council of Europe, Council of Europe Convention on preventing and combating violence against women and

domestic violence, Council of Europe Portal (Mar. 30, 2020, 8:00 P.M.),

https://www.coe.int/en/web/conventions/full-list//conventions/rms/090000168008482e. 53Id.

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Parliament adopted a resolution on Zero Tolerance for FGM.54

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996, was passed by the

United States of America, which criminalises FGM. To protect a child from mental suffering,

physical pain and any other injuries and to prohibit anyone from endangering life of a child by any

act of female genital mutilation, California passed California Prohibition of Female Genital

Mutilation Act in 1996, which came into force in 1997.55

Model criminal code of Australia also criminalizes FGM. It defines, prohibits and penalizes FGM.

State legislates penalties of the said offences and can punish the wrongdoer with imprisonment of

up to 21 years.56 The Australian High Court has held in the case of The Queen v A257 that a female’s

genitals do not need to be made imperfect or damaged irreparably in some fashion for the offence

of female genital mutilation to be completed. The High Court overturned the decision of the New

South Wales Court of Criminal Appeal, which observed that there is a need of real damage for the

offence of female genital mutilation to have been occurred. The term “otherwise mutilates” will

also fall within the ambit of temporary or repairable injury inflicted on female genitalia and the

definition of the term “clitoris” will also covers “clitoral hood”, as has been observed by Hon’ble

Chief Justice Keifel and Justice Keane after considering several reports, including those issued by

WHO, some research reports from the 19th century and a detailed report by the Family Law

Council, among others. The court held that all kinds of female genital mutilation will be considered

illegal and will invite punishment for the wrongdoer.

The scope and approach of the legal provisions regarding FGM/C varies from country to country.

More than 21 countries athwart Africa and 13 countries have laws criminalising FGM/C till now.

Special provisions have been subsumed in the penal code of many countries like Ghana, Egypt,

Austria, Belgium, Cyprus, Denmark, Italy, Norway, Portugal, Spain and Sweden, while some

countries have made specific Acts (like Kenya Children’s Act, 2001) to criminalize the practice.

Current and existing penal code provisions have been applied by the countries like the United

States, France, Germany, Mali, the Netherlands and Switzerland, to criminalise FGM/C.58

Other countries and organisations all over the world are working day and night to achieve the goal

of elimination of this practice from all social levels. Many countries have amended their legal

structure in a way to take steps in furtherance of this goal. This brings us to the question of

proposing a model law for India, which lacks specific legislation in this respect.

V. Conclusion And Way Forward

The future of our nation lies with our children. One of the youngest populations of the world is in

India. It is estimated that by 2020, the average age of Indians will be 29 years which is the youngest

54European Parliament, European Parliament resolution of 7 February 2018 on zero tolerance for Female Genital

Mutilation (FGM)(2017/2936(RSP)), European Parliament (Mar. 30, 2020, 8:00 P.M.),

https://www.europarl.europa.eu/doceo/document/TA-8-2018-0033_EN.html. 55 The California Prohibition of Female Genital Mutilation Act, 1996, Cal. Adv. Legis. Serv. 790 (1996). 56Review of Australia’s Female Genital Mutilation legal framework Final Report, Australian Government- Attorney

General’s Department (Mar. 30, 2020, 8:00 P.M.), https://www.ag.gov.au/. 57The Queen v. A2, (2019) HCA 35, Case no. S43/2019 S44/2019 S45/2019. 58Parveen, supra.

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in the world.59 A healthy economic growth can only be achieved when the population of the nation

is healthy. We are one of the fast-growing economies in the world. After 73 years of Independence,

it is disheartening to see that social taboos still exist in our country. It is high time that parliament

should enact a law which deals with FGM and criminalizes this practice.

Women have encountered discrimination in the male dominated society from ages and the scar of

such harsh practices is present in the modern society till date. These taboos can be removed through

gender sensitization. The customs of our society are made according to these discriminatory

beliefs. Some claim that the procedure of FGM is just to ‘purify’ the girl by cutting off excess

flesh. Others have a baseless claim that it prevents girls from having sexual arousals and ensures

that they are true to their husbands. Children are continuously forced by their parents and society

to suffer, even after extensive research work proves otherwise. In this case, schools and religious

institutions like Madarsas can play an important role by educating young minds and give more

preference to the development of girl child. The purpose of undergoing this practice is not achieved

as is perceived as women are able to reach orgasms even in the absence of clitoris, which makes

the act even more redundant and only exists to satisfy the consciousness of the patriarchal mind-

set of the community. This is a clear fence to the Freedom of Liberty that our forefathers had

envisioned while framing the Constitution. FGM and compulsory mutilation of the girls are

nowhere mentioned in Quran, which is religiously followed by the Bohra Muslims. Hence, taking

a religious stance on this issue does not hold water. Religious organizations can spread awareness

as they have a very strong reach and hold over the people of their community and can serve as a

very good medium to educate people about the ill effects of FGM.

In 2010, over 6000 communities in Africa abandoned Female Genital Mutilation/ cutting. In

Ethiopia, the existence rate has decreased from 80 per cent to 74 per cent, in Kenya it has decreased

from 32 per cent to 27 per cent, and in Egypt it has reached to 91 percent from the staggering rate

of 97 percent.60The Legislature can use its law-making power and can criminalize FGM by

defining the term, ‘Female Genital Mutilation’ in an inclusive manner and prescribing its

punishment in severe terms. In doing so, it can cue help from other countries where the practice

has been criminalized. If under-developed countries in Africa can abandon such a practice within

one generation, India, being the fastest developing country, should do everything in its powers to

ensure abandonment of this practise.

In India, there needs to be a culturally sensitive approach. Rather than condemning the practise,

engaging in dialogues with all the groups of the community, including religious leaders and young

girls themselves is essential in bringing about a voluntary renunciation and abandonment of the

practise. Religious organizations must propagate the right interpretation of their religious text to

their people so that they can get rid of their uninformed mind-sets regarding the cruel practices.

Moreover, comprehensive, scientific research needs to be conducted on FGM to understand it

better.

59 FE online, Population database of United Nation’s Population Division, Financial Express (Mar. 30, 2020, 8:00

P.M.), https://www.financialexpress.com/india-news/with-an-average-age-of-29-india-will-be-the-worlds-youngest-

country-by-2020/603435/. 60 UNICEF, Over 6000 communities across Africa abandon female genital mutilation, UNICEF (Mar. 30, 2020, 8:00

P.M.), https://www.unicef.org/media/media_57613.html.

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The number of half a million who have been cut in India does not include hundreds of thousands

of girls who escaped being mutilated. For thousands already mutilated, some treatment needs to

be given to help them overcome the trauma physically and emotionally. Workshops along with

social media should be used to reach out to these women and encourage them to come forward and

receive the much-required treatment. NGOs, with the help of government agencies, can arrange

awareness drives in the areas which need to be educated the most. Lack of awareness is the biggest

reason behind the prevalence of the practice. FGM in India needs to be banned as it is a cold-

hearted and baseless tradition which is opposed to public health and order. The Legislature and the

Judiciary must introduce new laws to prevent this cruelty.

Our population is growing. Over half a million children in India have gone through FGM and many

are in danger of being forced through the process. The government, in order to maintain a welfare

state must bring the laws as to ban this practice. There are many parents who, after being educated

and informed about FGM, have put their foot down and refused to put their young girls through

the process. This resulted in their humiliation, being ostracised, and disowned by the community

members. Many families succumb to the peer pressure and forcefully mutilate their children.

To cast off this practice from the society, the Legislature and Judiciary should take immediate

and strict steps. A practice cannot be treated as a custom if it infringes the Fundament rights of a

person. The Judiciary should give a decision in favour of women to protect their health and right

to life and not in favour of religious institutions.

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Disposal, Delay and Denial: Case Study in Criminal Justice System

Dr. Girjesh Shukla*

Abstract

Securing justice has always been riddled with difficulties. This problem is akin to all

jurisdictions, though at different levels of severity. The problem of delay, especially delay

in criminal justice system, is at alarming scale in India. Numerous reasons are being

cited by officials, professionals and academicians working in the field of judicial system.

Whatever may be the reasons, delay inevitably results into denial of justice. It is

undeniable fact that the criminal justice system of India is going through rough phases.

On one hand, there is a strong demand for radical reforms in terms of creating new

offences and stringent punishment due to new set of criminality, crime pattern and

methodologies coming at fore, on the other, since justice hurried is justice buried, there

is a deeply felt need for protection of human rights. One way for looking remedies

avoiding delay and ensuring justice would be to re-examine the very conceptual

outlining of Criminal Justice System. Arguments were made as to re-designing of

categories like Cognizable vs. Non-cognizable, Bailable vs. Non-bailable, Categorisation

of Trial Procedure, Sentencing patterns etc. It is further added that these

concepts/categories need to be re-examined with different conceptual outlook. In the

present work, author empirically tests the very functioning of two different procedural

rule contained in the Code of Criminal Procedure, 1973 dealing with bail and grant of

compensation respectively, and demonstrates that how these procedure results, equally,

into the delay and the denial of justice.

Key Words: Bail, Bail Bond, Bail Jurisprudence, Victim Compensation, Criminal

Justice System, Justice Delayed, Justice Denied etc.


I. INTRODUCTION

Securing justice has always been riddled with difficulties. This problem is akin to all

jurisdictions, though at different levels of severity. The problem of delay, especially delay in

criminal justice system, is at alarming scale in India. As per the available data, by the April

2018, there were over 03 Cr. cases pending across the various Indian Courts.1 Of these, the

subordinate courts account for over 86% pendency of cases, followed by 13.8% pendency

before the High Courts. Between 2006 and 2018 (up to April), there has been an 8.6% rise in

the pendency of cases across all courts. Pendency of cases in Subordinate Criminal Courts are

at very high level. As per data of 2016, 81% of all cases pending in subordinate courts were

criminal cases. Though, delays are not a peculiarly Indian phenomenon. Problem of delay in

disposal of cases are at rampant in many other jurisdictions. However, the scale of delay in

Indian judicial system is unprecedented.

II. EXPLORING THE PATTERN OF DENIAL

Numerous reasons are being cited by officials, professionals and academicians working in the

field of judicial system. Whatever may be the reasons, delay inevitably results into denial of

* Dr. Girjesh Shukla, Associate Professor of Law at Himachal Pradesh National Law University, Shimla.

Author may be contacted at [email protected] 1 Gajraj Singh, Pendency of Cases in Judiciary (5/05/2020) https://prsindia.org/policy/vital-stats/pendency-

cases-judiciary

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https://prsindia.org/policy/vital-stats/pendency-cases-judiciary

https://prsindia.org/policy/vital-stats/pendency-cases-judiciary



justice. It is undeniable fact that the criminal justice system of India is going through rough

phases. On one hand, there is a strong demand for radical reforms in terms of creating new

offences and stringent punishment due to new set of criminality, crime pattern and

methodologies coming at fore, on the other, since justice hurried is justice buried, there is a

deeply felt need for protection of human rights. It is further argued that the rule of law cannot

exist without an effective judicial remedy available to all in a timely manner. Non-availability

of efficient judicial system impedes the public confidence in rule of law, and thus provokes

perturbed minds to search quick alternatives. It further obstructs the process of economic

development.

The Economic Survey 2017 marked that commercial cases pending in various courts were the biggest stumbling block in reviving the investment. The Survey states:

“The next frontier on the ease of doing business is addressing pendency,

delays and backlogs in the appellate and judicial arenas. These are hampering

dispute resolution and contract enforcement, discouraging investment, stalling

projects, hampering tax collections but also stressing taxpayers, and escalating

legal costs. Coordinated action between government and the judiciary-- a kind

of horizontal Cooperative Separation of Powers to complement vertical

Cooperative Federalism between the central and state governments-- would

address the “Law’s delay" and boost economic activity."

III. Reasons for Delay

The delays in disposal of cases are due to various reasons. It ranges from issues like long due

vacancies in various courts, Court’s infrastructure, procedural issues like adjournment to that

of psychology of litigants. Vrinda Bhandari, in her work “India’s Criminal Justice System:

An Example of Justice Delayed, Justice Denied”2 counted three fundamental reasons of delay

in criminal justice system. Firstly, the ‘external factors’ such as monetary, cultural or

geographical barriers, which exclude or “fence-out” certain sections of society by preventing

their access to courts. Geographical barriers or distances from courts can cause great

difficulty to litigants, accused, witnesses, if they have to undertake day long trips to reach the

courts, only for the matter to be adjourned.3 Secondly, the ‘internal factors’, such as delays or

convoluted procedures and technicalities, which affect everyone in the system, but

disproportionately impact those with fewer resources. And thirdly, the ‘quality factors’,

which are caused by the uncertain and inconsistent application of law and arbitrary

sentencing and affect the substantive judgment of the case on merits. She argues that, this

‘quality factor’ tends to have a disproportionate impact on the poor, whether in cases related

to arrest, bail, or the sentencing including the death penalty.

A close examination of the reasons cited above would re-affirm the common belief that

criminal justice system is still a distant dream for poor and ignorant. A large number of

arrests in India are reportedly either “unnecessary or unjustified”. This does not only add up

to the problem of undertrials, but also causes inexorable delays in the judicial process. The

extended incarceration of accused, in addition of causing mental trauma and economic loss to

2 Vrinda Bhandari, India’s Criminal Justice System: An Example of Justice Delayed, Justice Denied (Firstpost)

(15/02/2020) https://www.firstpost.com/long-reads/indias-criminal-justice-system-an-example-of-justice-

delayed-justice-denied-3475630.html 3 Id., Vrinda Bhandari (Supra)

267

https://www.firstpost.com/long-reads/indias-criminal-justice-system-an-example-of-justice-delayed-justice-denied-3475630.html

https://www.firstpost.com/long-reads/indias-criminal-justice-system-an-example-of-justice-delayed-justice-denied-3475630.html



the accused and his family, further impedes the effective legal assistance.4 The delay in the

investigation and prosecution of criminal cases erodes faith in the rule of law and the criminal

justice system, which has serious implications for the legitimacy of the Judiciary.5 Justice

delayed is, thus justice denied.6 Delays in the administration of justice dents the delivery of

justice, not only to the accused but also the victim as well as the system. Delay lead,

inevitably, to loss of physical evidence, questionable reliability on witness testimony etc. The

delay which ads-up socio-economic loss to victim and accused equally, often delude both to

pursue their case diligently to any logical conclusion. Daksh Report noted, an accused who

has been in prison for many years as an under trial, may think it is more advantageous for

him to plead guilty and leave prison, rather than face the uncertainty of trial.

IV. RE-EXAMINING THE CONCEPTUAL FRAMEWORK

The one way for looking remedies avoiding delay and ensuring justice would be to re-

examine the very conceptual outlining of Criminal Justice System. Arguments were made as

to re-designing of categories like Cognizable vs. Non-cognizable, Bailable vs. Non-bailable,

Compoundable vs. Non-compoundable, Categorisation of Trial Procedure, Sentencing

patterns etc.7 Committee on Reforms of Criminal Justice System, Ministry of Home,

Government of India, (popularly known as Malimath Committee Report) suggested complete

overhauling of these distinctions. The Committee through Para 15 at page 181 (Vol.-I)

discuss in length about reclassification of offences. The Committee lamented the approach

and stated that “India inherited the present system of classification of offences from its

colonial rulers more than 140 years back, in which the police are the primary enforcers of

the law. Considering the nature of the impact of colonial law making, suffice it to say that it

is time to re-examine and reframe the laws as appropriate to the twenty first century Indian

society and its emerging complexities.” It further added that “[if] the Criminal Justice System

were to increase its efficiency in rendering justice and become as quick as it is fair, it would

restore the confidence of the people in the system. Towards this, it is necessary to not only re-

classify crimes but re-classify them in such a manner that many of the crimes- which today

take up enormous time and expense- are dealt with speedily at different levels by providing

viable and easily carried out alternatives to the present procedures and systems.” Thus, these

concepts/categories need to be re-examined with different conceptual outlook.

In the present work, author empirically tests the very functioning of two different procedural

rule contained in the Code of Criminal Procedure, 1973 dealing with bail and grant of

compensation respectively, and demonstrates that how these procedure results, equally, into

the delay and the denial of justice.

V. CASE STUDY-I: BAIL BOND-A FLAWED PROCEDURE

According to the data released by National Crime Record Bureau (NCRB) in 2017, there

were at least 3, 08,718 inmates in various jail as undertrials and they constitute 68.5% of total

inmates. Among undertrial prisoners, around 75% of prisoners were confined for a period of

less than one year, whereas 34,311undertrial prisoners were confined for more than 2 years.

There were 4,876 undertrial prisoners were confined for more than 5 years. Thus, the data

4 Ibid. 5 Law Commission of India, 245th Report, 2013 6 Law Commission of India, 239th Report, 2004 7 Diwaker Singh v. State of Bihar, Crl. Appeal No. 433 of 20041

268



collected by National Crime Record Bureau speaks in volume about problem of undertrials,

and thereby narrates the complexities of bail system.

VI. Bail Bond and Surety: The Procedure

Chapter 33 of the Code of Criminal Procedure, 1973 (hereinafter referred as Criminal

Procedure) provides the law relating bail. Apart from other substantive requirements, there

are two procedural requirement for granting bail i.e. furnishing of bail bond and surety.8 Bail-

bond is a monetary deposit/guarantee whereby accused undertake to observe the terms and

conditions laid down in the bail order, and in case of breach of terms and conditions, his bail

will be cancelled, and the amount deposited as ‘bond’, will be forfeited.9 As a general rule,

the Courts insist for the production of property documents and the verification thereof, before

a formal release of accused may be ordered. In case of land documents enclosed bond, the

same is to be verified by appropriate authority, mostly often the Sub-Divisional Magistrate.10

It further permits to deposit of a sum of money or Government Promissory Notes, except in

the case of a bond for good behaviour, in lieu of executing a bond.11 Sometimes, in lieu of

property documents, accused or surety use to enclose the Registration Certificate (RC) of

two-wheelers, four-wheelers, etc., and even in such cases verification is done through the

Regional Transport Office (RTO). Criminal Procedure cautions the courts about the amount

of bail bond or surety, and provides that every bond should be fixed with due regard to the

circumstances of the case and should not be excessive.12 There is no provision in law to insist

that surety must hail from within the district where the Court is situated.13 Courts have guided

that when the accused is not likely to abscond and has his roots in the community, he can be

safely released on personal bond. Enquiry into solvency of the accused can become a source

of harassment and often results in deprivation of his liberty.14 Where sureties are insisted on,

ordinarily due weight should be given to the affidavits produced by the surety and an inquiry

or insistence on a solvency certificate must be the exception rather than the rule.15

VII. The Monetary Tag of Bail Order

The concept of bail bond and/or surety seems to be very reasonable procedure to compel the

presence of the accused before the court. It is believed that the accused having furnished

certain amount of bail-bond can’t dare to jump the bail. However, the procedure for

furnishing bail bond and surety, and the verification process is flawed and violates its own

normative requirements. Firstly, there are occasions where accused is arrested in some other

jurisdictions, far away from his local area, and in such cases accused being a stranger to the

area, may not secure a person to stand as surety. Secondly, notwithstanding the fact that

‘monetary tag’ is an accepted norm for granting bail, and the law directs amount so fixed

shall not be excessive, it is often seen that the amounts are being fixed arbitrarily high, and

thereby deny the accused quick release. Thirdly, as against Section 440 of the Criminal

Procedure which demands the court ‘to give due regard to the circumstances of the case’ and

accordingly fixed the bond, various bail orders examined hereinafter suggest that the bail

8 The Code of Criminal Procedure, 1973, s. 441 9 Id., s. 446 10 Shiv Shyam Pandey v State of UP, 2009 (5) ALJ 70. 11 The Code of Criminal Procedure, 1973, s 445. 12 Id., ss 440 & 441, 13 Moti Ram v. State of Madhya Pradesh, AIR 1978 SC 1594 14 Hussainara Khatoon v. Home Secretary, state of Bihar, AIR 1979 SC 1360 15 Valson v. State of Kerala (1984) 2 Crimes 503

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bonds are being fixed arbitrarily without giving due regard to nature of crime, flight risk in

the of offender or any other normative criteria. Thus, in practice, it is fixed arbitrarily devoid

of any normative criteria.16 Imposing arbitrary bond amount was ridiculed by the Apex Court

of India since seventies, as being violative of Article 14 and 21 of the Constitution of India.17

The court observed that the ‘money’ may be one consideration for creating deterrence, but

per se cannot be a guarantee for observance of terms and conditions laid down in the bail

order.

VIII. Approach of Bail Courts: Monetary Tag & Arbitrariness

Generally, bail bond is fixed while considering relevant financial status of the accused. In

Motiram case18 the Apex Court suggested that harsh condition in bail orders are against the

law. In Sandeep Jain v National Capital Territory of Delhi,19 Supreme Court ruled that bail

conditions being onerous in the nature are against law. Further, Ramathal & Others v.

Inspector of Police,20 the Supreme Court did not approve a bail condition Rs. 32,00,000/- and

also on their executing a personal bond of Rs. 1,00,000/- with two sureties each for the like

sum. Again, the Supreme Court in Amarjit Singh v. State of NCT of Delhi,21 deplored the bail

order requiring the applicant to submit the sum of Rs. 15 lacks in the form of FDR, and held

the same as ‘unreasonable’ condition. Thus, the Apex Court guided that the objective of a

bail bond should be to create a financial deterrence, and thereby securing compliance of

terms and conditions of bail order, and no the means to deny a proper release of the undertrial

prisoner.

Hereinafter, it is argued that without having a reasonable and substantial difference between

the amounts for bail bond between rich and poor; between different classes of accused based

on severity of offence committed, creates a serious doubt as to arbitrariness of these bail

orders, and thus, violative of Article 14 of the Constitution of India.

IX. Empirical Data

The data collected would expose the applicability judicial dictum given in Moti Ram v. State

of M.P,.22 Through stratified random sampling method, bail orders from Districts Ghaziabad

and Saharanpur of Uttar Pradesh were collected and examined from various perspective.

These two districts represent two different socio-economic and demographic patterns. A total

of one hundred bail order, fifty each from district Ghaziabad and Saharanpur respectively

were selected from the official website of these courts. Only those cases were selected in

which bail was allowed with or without sureties.

Table-03: Average Monetary Tag in the Bail Bond

Category of Offences

Ghaziabad Saharanpur

Male Female Male Female

Attempt to Murder/CH 1,00,000 NA 50000 50,000

16 State of Rajasthan v. Balchand AIR 1977 SC 2447 17 Moti Ram v. State of Madhya Pradesh, AIR 1978 SC 1594 18 Ibid., 19 (2000) 2 SCC 66; See, Sakthivel v Inspector of Police, [2015 (2) MWN (Cr.) 438] 20 [2009 (3) SCALE 550] 21 JT 2002 (1) SC 291 22 Moti Ram v. State of Madhya Pradesh, AIR 1978 SC 1594

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Hurt Simple/Grievous NA 50000 50000 50,000

Theft/Robbery 50,000 50,000 41,111 47,500

Forgery 50,000 NA 50,000 50,000

Arms Act NA NA NA 50,000

Cow Slaughter NA NA 60,000 NA

Possession of Drug/Liquor 50,000 50,000 54,000 50,000

Gangster Act 50,000 NA 50,000 NA

The data reflects very indiscriminate fixation of amount in the bail bond. There seems to be

no criteria and little application of mind as to facts and circumstances while fixing the

amount of bail bond. For example, in case of heinous offences like attempt to murder,

culpable homicide the average amount mentioned in the bail bond is Rs. 50,000/. Ironically,

cases of theft also met with the similar bail bond. During study, it was found that bail amount

for stealing of buffalo or a mobile is not anywhere different to that of attempt to murder.23

Though, the sample size of the work is comparatively smaller, and thus any possible

generalization may be subject to further inquiry. However, there are three irresistible findings

of this study, firstly, that bail courts have failed to appreciate the rationale behind having

differential amount of bail bond; secondly, the bail courts are reluctant in providing reasons

behind fixing any given amount against the bail bond; and thirdly, fixing monetary tag for

higher sum would unnecessary insist for verification, and thus denial of quick release of

undertrials.

X. CASE STUDY-II: VICTIM COMPENSATION

Code of Criminal Procedure, 1973 provides mechanism for compensation to victim crime

through Section 357 & 357A. As per this provision, victim may be granted compensation out

of the amount of Fine, if any, imposed on the convict24; and if fine does not form the part of

substantive punishment, then such amount, as may be specified in the order to the person who

has suffered any loss or injury by reason of the act for which the accused person has been so

sentenced.25 Further, Section 357-A provides that “when the compensation awarded Under

Section 357 is not adequate for such rehabilitation, or where the case ends in acquittal or

discharge and the victim has to be rehabilitated, then such amount, as recommended by

Court, from the Fund Created by State.” There are additional provisions for providing

compensation under various Central as well as State Schemes under National Legal Services

Authority Act, 1987; POSCO Act, 2012; and another ex-gratia scheme.

Under a UGC sanctioned Minor Research project, the author has collected empirical data i.e.

2776 case, decided by 71 Sessions Courts of Uttar Pradesh between year 2017-18. The

sample design for this research was stratified random sampling wherein at least 20 and not

more than 100 cases were taken from each Session Court. Only those cases were part of this

sampling process which have qualified the criteria i.e.

(a) Case must have been tried by Sessions Court in Uttar Pradesh;

23 Akbar v. State, Crime No. 140/2018, District Court & Session Court-09, Saharanpur, 11/05/2018 24 The Code of Criminal Procedure, 1973, s. 357(1) 25 The Code of Criminal Procedure, 1973, s. 357(3)

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(b) Offence must be of such a nature wherein some individual must be the direct victim

of the crime (cases relating to Electricity Theft, Food Adulteration, Possession of

Liquors, NDPS etc. are not taken into consideration)

(c) Case must have resulted into conviction

(d) Court must have imposed fine with or without grant of compensation.

Sample Size

Fine

Compensation

Not

Granted

Granted

Courts Number of

cases

Fine

Imposed

No Fine

Imposed

Granted u/s

357(1)

Granted u/s

357(3)

71 2776 2748 28 1898 877 01

The research depicted a very sorry state of affairs about granting of compensation pattern

throughout state of Uttar Pradesh. The data reflects that out of 2776 cases, compensation is

awarded in only 878 cases i.e. 31.62%. Out of 2276 cases, there is only one case wherein

victim was granted compensation without the fine being imposed on the accused. It is very

alarming that 1898 (68.37%) cases, which form the part of sample in this research, though

resulted into conviction but courts have not awarded any compensation to the victims. One of

the reasons for non-awarding of compensation is higher dictate as to total disposal of cases on

daily basis. Judicial officers, subject to anonymity, suggested that if they turn towards

providing compensation in each case that will lead to further delay because in many cases

court were yet to finalise the true victim. There were cases wherein victim’s family disputed

the right of compensation recipient as to his entitlement. Thus, awarding compensation would

further delayed the disposal of the file.

XI. REFORMING THE PROCEDURE

The inferences drawn from above two studies would inevitably suggest for an urgent reform

in procedural laws for expediting criminal justice system. As argued earlier, in number of bail

applications, bond amount is fixed at higher side, requiring verification, which in turn delay

the process of release, and thus result into total delay in the disposal of the case. Similarly, a

distinct system is required to be placed whereby victim can be granted ‘compensation’

without the file being classified as ‘pending’.

XII. SUMMING UP

It is high time to envision a multipronged strategy to reduce the pendency of cases at the

different levels of courts. Some of these may include reducing government litigation by

adopting alternative dispute resolution, compulsory use of mediation etc. Criminal Justice

System, which is currently plagued with procedural complexities, need to be simplified, and

at the same time capacity building should be enhanced through use of technology. While

making any such effort, one need to keep in mind that justice delivery system is not an

infinite game where one party is doing her best to win the case and the other is interested in

just playing with it. It is rather, a finite game, where both the parties are trying their best to

win and reach to the justice.

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Book Review

Of

“An Idea of A Law School: Ideas from the Law School” (2019)

Edited by N.R. Madhava Menon, Murali Neelakantan, Sumeet Malik, Eastern Book

Company

Rhea Roy Mammen1


I. Introduction

Legal education in India witnessed a turning point with the establishment of the National Law

School of India University (NLSIU), Bangalore, in 1986. The desire to transform legal education

had been discussed by Prof. Upendra Baxi in his note “Towards a socially relevant legal

education” which was a consolidated report of the workshops organised by the University Grants

Commission (UGC) on the modernisation of Legal education between 1975 and 1977.2 The

experiment commenced in the 1980s and was translated into reality in 1986 by Prof. Dr. N. R.

Madhava Menon. To celebrate twenty-five years of the establishment of NLSIU, a seminar was

organised to bring together the alumni and founding faculty members of “The Law School”. The

book, “An Idea of a Law School: Ideas from The Law School” is therefore a collection of essays

from the alumni who spoke and presented their papers on this occasion.

Consequently, the reviewed book3 is a testimony to the success of NLSIU and how the law

school has not only achieved but also exceeded the vision of the founding members. The book

stands out, for the thread of argument that it flows into highlighting that legal education is

beyond preparing professionals for litigation, but for multiple avenues where lawyers are

required. It is worth noting how the alumni of NLSIU have reached different spheres of the legal

profession and opened the doors to those opportunities, which had never been thought of before.

Preface of the book lists out some of the notable alumni of NLS and their contribution to the

society, showcasing the success of NLSIU. Success is not only of NLSIU, but to the five-year

law course that was introduced, including wider perspective to legal profession. It further goes

on to point out that the purpose of legal education is not merely litigation, but also to ensure that

disputes do not always end in litigation. Lawyers are considered to be torchbearers of the nobility

of the legal profession due to their ability to settle disputes and define feasible solutions. It is

necessary that new entrants to the profession are aware of and hence uphold this nobility.

The essays submitted by the book’s contributors testify to their credentials. The book often feels

like a walk-through the memory lane, but it also serves as a reminder to the principal reason

NLSIU was established. That is, the responsibility to produce lawyers who were social

engineers.

1 Rhea Roy Mammen, Assistant Professor (Law), Ramaiah College of Law; Research Scholar, National Law School of

India University, Bangalore. 2 U. Baxi, Towards a Socially Relevant Legal Education: A consolidated report of the University Grants

Commission’s Workshop on Modernization of Legal Education, (1979) available at

https://www.ugc.ac.in/oldpdf/pub/report/1.pdf (last accessed on 23rd March, 2020) 3 N. R. MADHAVA MENON, M. NEELAKANTAN, et.al, AN IDEA OF A LAW SCHOOL: IDEAS FROM THE

LAW SCHOOL, (2019).

273

http://www.ugc.ac.in/oldpdf/pub/report/1.pdf





To provide a brief overview of the book, it is divided into three parts broadly covering Legal

Education, Legal Profession and Legal Services, and Judiciary and Access to Justice. There are

31 articles in total in the book distributed across the three parts, where the authors have thrown

light on different challenges, achievements, and the way forward for legal education in the

country.

The book encapsulates a broad range of experience containing contributions from Dr. Justice

Rajendra Babu, Former Chief Justice of India, the oldest contributor, through to Mansi Sood,

Rhodes Scholar, NLSIU Batch 2016, the youngest. By doing so, this book captures the

differences in ideology regarding how legal education and the responsibility of legal profession

are perceived by different generations. The discussion titled “The Legal Education in Flux – The

NLS experience: Legal education & what comes next” between Adv. Alok Prasanna Kumar,

Adv. Murali Neelakantan, Laila P. Ollapally and Prof. Sudhir Krishnaswamy, which is based on

this book, provides a wonderful insight into the responsibilities of legal education, the

expectations versus the reality, and what it ideally should be.4

The book also has the significance of having among its contributors, two great personalities who

were key drivers of innovative practices in Legal Education in India, Late Prof. Dr. N.R.

Madhava Menon and Late Prof. Dr. Shamnad Basheer.

II. Legal Education

Legal Education in India has undergone various stages of transitions, which is something to

boast about. Prof. N.R. Madhava Menon, in his article on “Transformation of Indian Legal

education”,5 which was also presented at the Harvard Law School, points out how law schools

too have transformed, especially with the demands of the globalised world. The five-year law

course was introduced as “Justice Education” to meet the constitutional goals of justice.6 With

globalisation came the demand to ensure that law students are equipped to handle the complex

web of the transnational nature of law. Prof. Ranbir Singh7 and Prof. Prabha Kotiswaran,8 in

their articles, elaborate on how law schools must handle conflicting demands. As Justice

Rajendra Babu, former Chief Justice of India, highlights in his article, the purpose of legal

education must be to bridge the gap between theory and practice.9 Moreover, one of the most

recommended ways of achieving this is to integrate clinical methods into the legal curriculum.

Currently, the Rules of Legal Education, 2008, mandate four clinical papers as part of the legal

education curriculum. However, based on Prof. Menon’s recommendation that the clinical

curriculum must ensure that law graduates are practice-ready, it was proposed to have eight

clinical papers in the final year with the final semester containing clinical papers based on the

career choices of the students.10The five-year course was introduced to meet the need to

4 A. P. Kumar, M. Neelakantan, et.al, The Legal Education in Flux – The NLS experience: Legal education & what

comes next (22 Oct. 2019), https://youtu.be/Y24e74fLc3M. 5 N.R. Madhava Menon, supra note 2,113 (Chapter 8) 6 R. Singh, supra note 2, 16 (Chapter 3) 7 ibid 8 P. Kotiswaran, Case for a Transnational Approach in Legal Education, supra note 2 (Chapter 4) 9 Justice R. Babu, Legal Education Should Bridge the Gap Between Law and Justice, supra note 2 (Chapter 2) 10 N.R. Madhava Menon, Innovative Clinical Curriculum for Enabling Law Graduates to Become Practice-Ready,

supra note 2 (Chapter 7)

274



“modernise” legal education and to ensure that it is socially relevant. To ensure social relevance,

it is necessary for law graduates to have the competence to meet their professional demands. By

the third year, law students must be able to finalise their professional choices so that the later

years in the course can be utilised to prepare for the same.

The career options available to a law graduate opened up post 1990s when various corporate

organisations opened their establishments. It was noticed that the best legal brains were drained

internally by the companies.

Mansi Sood, 2016 batch of NLSIU and Rhodes Scholar, in an attempt to understand the

performance of NLSIU and NALSAR, identifies some of major challenges haunting law schools.

As recorded in the book, curriculum and teaching methodology were perceived to be the biggest

grievances by her respondents in the evidence-based study undertaken by her.11It was evident

that a growing dissatisfaction had begun to be reflected which can be blamed on the shift of the

“baseline” in Legal Education. In this regard, it is necessary for readers to read the book along

with the panel discussion that followed it where the panellists have referred to how the

expectations regarding the law school have been hyped and the consequent shift of the baseline

has caused dissatisfaction among the students.

To settle the growing concern regarding the quality of legal education a Draft National Policy on

Legal Education12was submitted by Prof. Dr. N.R. Madhava Menon. The policy was drafted after

he organised the zone-wise consultative meeting with Vice Chancellors and academic heads of

law institutes. While the coverage of the National Education Policy (NEP) with regard to legal

education was restricted to less than a page, the draft policy is quite elaborate. Some of the

highlights of the draft policy include setting the focus of legal education on inter-disciplinary

collaboration and problem-solving, introduction of Lawyer Incubation Clinics (LIC),13and

making sure that law students have the necessary entrepreneurial skills to start on their own. The

striking features of the National Legal Education Policy, as it is indicated are: the necessity to

divide legal education into two branches, namely, professional legal education, for those who

wish to pursue a career in law, and legal studies, for those who simply desire legal literacy. The

Policy also recognises the obligation to maintain the quality of legal education and the necessity

for the design of the LLM course to ensure that those entering academia are trained to meet its

demands.14

The state of legal education is also determined by the fact that most of the legal education

institutions are privately funded, including most of the National Law Universities,15causing a

financial burden on the stakeholders. In such a scenario, expecting them to contribute back to the

society cannot be realistic.

11 M. Sood, Legal Education in India: The Role of the National Law Schools and Their Outcomes Supra note 2

(Chapter 6) 12 N. R. Madhava Menon, Towards a Draft National Policy on Legal Education Supra note 2 (Chapter 1) 13 ibid 14 ibid 15 ibid

275



Nevertheless, as it can be gathered, NLSIU was a success, but it a worrisome fact if we remain in

the shadow of its past glory.16 It is the responsibility of law students, faculty, professionals, and

other stakeholders to ensure that legal education is safeguarded so as to safeguard the legal

profession.

III. Legal Profession

The quality of legal professionals reflects the quality of their legal education. Consequently, the

presence of NLSIU alumni in prominent posts reflects the success of the law school. However,

while opportunities for law graduates have widened due to globalisation, this has posed

additional challenges to the educational system and profession to meet the demands.17 This led to

a call for redefining the legal profession and how it is regulated by the Bar Council of India

(BCI).18Ekta Bahl’s article, “Defining or Redefining “The Profession of Law” in India”,

describes the wider domain of the legal profession:

Today, Legal Profession provide legal services in many capacities, such as arguing counsel,

briefing counsel, corporate legal advisory, drafting and conveyancing, in-house counsel, as a

team member for management of consultancy etc. Additionally, there is an overlap between the

services provided by other professionals as well as lawyers, especially chartered accountant,

labour law advisor and company secretaries.19

With globalisation, foreign law firms made their entry into India. This was initially opposed by

the BCI who restricted their representation as they were not entitled to practice, including

litigation and non-litigation work. However, the GATT (General Agreement on Tariffs and

Trade) mandate permitted their entry.20 The BCI drafted the “Bar Council of India Rules for

Registration and Regulation of Foreign Lawyers in India, 2016” with regard to foreign lawyers.

This required foreign lawyers to register with the BCI and to adhere to the BCI rules thereafter.

As proposed by Prof. Menon, though the foreign law firm is registered elsewhere, those recruited

are Indian lawyers, thus widening the opportunities for law graduates. With foreign law firms

and increased transnational disputes, geographical distance has diminished for lawyers.

Technology has stepped in to ensure effectiveness and efficiency.21This has introduced us to the

new age lawyer entrepreneur who is enabled by technology.22

With such advancements, legal education and graduates from NLSIU, in particular, faced

criticism for not joining the “Practice of Law” in its original form. That is, it is the responsibility

of the legal profession to uphold the rule of law and to extend pro bono services.23 This criticism

has persisted ever since the first batch of graduates of the law school. Adv. Nandan Kamath and

16 Supra No.10 17 E. Bahl, Defining or Redefining “The Profession of Law” in India Supra note 2 (Chapter 12) 18 ibid 19 Ibid at 192 20 N.R. Madhava Menon Foreign Lawyers in India and Indian Lawyers Abroad: Prospects for Trade in Legal

Services Supra note 2 (Chapter 15) 21 . Kumar, Practice of Law, Development and the Rule of Law Supra note 2 (chapter 10) 22 I. Choudhury, “The New-Age Lawyer — Entrepreneur: Enabled by Technology; Inspired by Law Supra note 2

(Chapter 18) 23 Supra note 19

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Adv. R. Seshank Shekar,24 and Adv. Nandan Nelivigi25 offer their perspectives as answers to this

long-standing criticism.

Pro bono publico (“for the public good”) is a term commonly used, but seldom applied. In a

country like India, pro bono activities are inter-related to corporate social responsibility (CSR).

There is no proper definition of what constitutes pro bono activities compared to countries such

as, the United States, United Kingdom, and Australia.26 While law graduates desire to connect to

the society, the high values and ethics inculcated into them through the law schools make it

difficult for them reach the grassroots level.27 If the legal profession has to be improved, and

recognised, it is also necessary that 100 other institutes of law are equally equipped. It is

necessary that ethics and values are also considered to be responsible for regulating the legal

profession.28 It is these values and ethics that drive a lawyer to serve the society. In order to keep

lawyers informed of their ethical responsibilities and values, a continuing legal education

programme was introduced by Prof. Menon in his non-profit organisation, MILAT (Menon

Institute of Legal Advocacy Training). 29

As Adv. Murali Neelakantan observes:

“The underlying theme for our profession was public service. Unfortunately, this

is not how we are perceived today and public service is maligned term to the

lawyers in US.”30

Lawyers are expected to be self–regulated, therefore, the responsibility was cast upon the BCI to

regulate the profession in addition to their responsibilities to maintain the standard and quality of

legal education and create awareness, along with their personal practice.31In order to regulate the

lawyers ethically, the constitution of an ethics board was recommended.32 Moreover, it was

recommended that an external full-time independent, disciplined body regulate the profession.33

IV. Bridging The Gap

One of the long-standing discussions that have surrounded legal education and the legal

profession is the gap between the two. This disconnect between professional demands and

academic inputs, calls for interaction between the academia and industry through faculty-

professional interactions.34 In order to narrow the gap, it is equally important that the BCI

24 N. Kamath & R S. Shekar, “Probono” Legal Services in India: An Opportunity to Bridge the Access to Justice

Gap Supra note 2 (Chapter 11) 25 N. Nelivigi, Legal Profession in India: Need for Radical Reforms Supra note 2 (Chapter 14) 26 Supra note 19. 27 Supra note 23. 28 Ibid. 29 N.R. Madhava Menon, Continuing Legal Education and the Role of Bar Councils and Bar Associations Supra

note 2 (chapter 20) 30 M. Neelakantan, State of the India Legal profession: Where can we go from here Supra note 2 (Chapter 13) p. 202 31 E. Seshadri, Role of Our Bar Councils in a Time of Diminishing Brand Equity of the Legal System Supra note 2

(Chapter 17) 32 . Lukose, State of the Legal Profession Today and Outlook for Tomorrow Supra note 2 33 Supra note 29. 34 Ibid.

277



recognise both academics and full-time academicians. In very rare cases has the involvement of

academicians been seen as “amicus curiae”, which is permitted under the law.

Although the competency of faculty has been a concern, it is necessary to take the responsibility

to train them to meet professional demands. One of the examples cited was of the “Citizens

Legal Awareness Programs Committee”35by the BCI, where the legal aid clinics of law institutes

can be involved. One of the articles mentions the success of NLSIU as an “accidental” success,

which must be reconsidered.36

V. Access To Justice

The idea of quality of legal education and bridging the gap between the legal profession and

education is ultimately to ensure access to justice to the people of the country. As it was

discussed in the beginning, “Justice Education” was the focus of introducing the five-year law

course. It is at this point that Part III of the book opens discussions on access to justice through

reporting of judgments,37and the importance of Alternative Dispute Resolutions (ADR). Lawyers

are to be peacemakers rather than problem creators. It was for the ability of lawyers to come to

amicable settlement that a noble character was attributed to them and the profession.38 Court

room arguments and litigation were once the last resort opted for by people. While considering

access to justice, one of the crucial and mounting areas is ADR and to settle disputes through one

of the following means: negotiation, conciliation, mediation, and arbitration. Only in the event

that settlement does not arise from any of these mechanisms, should litigation be sought. Hence,

it is necessary that well-trained lawyers are available for this. This was highlighted in the article

by Adv. Laila T. Ollapally where she states:

“Legal Education in India needs to additionally focus on the humanistic,

experiential and participatory methods of dispute resolution.” Law student must

be afforded the opportunity to reflect on what motivated them to take law.”39

This will also help the judiciary address the concern of pendency of cases, which has become the

greatest threat to the justice delivery system. It is one of the “demonic” ways of denying access

to justice.40 ADR can be considered as a means to reduce the burden on the court even at the

appeal stage.41

Daksh, an organisation established by one of the alumni of The Law School, made an attempt to

understand the pending cases at the lower courts. The alarming results require immediate

attention along with use of technology and involvement of artificial intelligence (AI) to speed up

the remedy.42 As Adv. Sajan Poovayya also recommends, the use of technology is required at the

35 Supra note 29. 36 Supra note 2, at 227. 37 37 S. Malik, Access to Justice: Role of Judiciary and the Role of Law Reports Supra note 2 (Chapter 22) 38 H. Narasappa, Role of Judiciary, Judicial Delay and Access to Justice Supra note 2. (Chapter 26) 39 Supra note 2, at 278 40 ibid 41 P. Hatti, Thoughts on Alternate Dispute Resolution Mechanisms: How can We Make It More Inclusive? Supra

note 2 (Chapter 25) 42 V. S. Raghavan, Ideas for Reducing Pendency in Courts Supra note 2 (Chapter 27)

278



lower courts to overcome procedural bottle necks.43 In fact, it is worth mentioning at this point

that this became a reality in 2020 when courts were partially shut down due to the global health

emergency of COVID-19, leading to courts urging and recommending e-filing and online dispute

resolution.44It is also worth considering the involvement of institutes of legal education for

ADRs. Mediation centres in law institutes must be one of the means to settle disputes. Moreover,

faculty expertise in the subject matter can be utilised for the same. It was not always about

litigation but also to ensure solutions based on set norms.

Legal education sets the foundation for a strong democratic system and it is from the law schools

and other institutes of legal education that a system for justice delivery is set up. It is therefore

necessary to look into what is inculcated in the students.

As Prof. Shamnad Basheer, founder of IDIA (Increasing Diversity by Increasing Access), in an

article that stands apart from the others, as he conveys,45 “It’s not always information that makes

a great lawyer, it’s the ability of one to observe that gives genesis to legal creativity.”

We are constantly nagged by decision fatigue and our inability to work through our imagination.

This is what needs to be tackled, and it is for the teachers not to teach the law but to teach them

where to find law and appreciate it.46

VI. Conclusion

Overall, the articles contained in this book complement each other and overlapping has been

avoided. The sequence and structuring give the readers a wonderful experience of how legal

education translates to effective legal practice to achieve access to justice and how legal

education can be involved in multiple ways to ensure access to justice. However, what may not

be appealing about the articles is that the competency of faculty has been greatly criticised.

Nevertheless, there may be an underlying fact that a lack of recognition in academia has forced

the depletion of quality. This piece of literature could have been complete if there was reference

to the commitment of the law school under the NLSIU Act, 1986, and how they have achieved

their own commitments, especially, where the law school is required to assist and aid other

institutes of law to reach similar levels of excellence.

As Adv. Murali Neelakantan, in the discussion in October 2019 taking into account the book,

pointed out, it was lack of a belief and dream that has caused stagnancy in legal education. It is

necessary to accept and understand, as Justice Rajendra Babu observes, that the role of a lawyer

is to set and design the society at large and not only of “court room practice”.47 To conclude,

legal education is much more than preparing human resources for the Bar,48 it is to prepare

lawyers who are prepared to set and design the society in daily civic life in different capacities.

43 S. Poovayya, Role of Judiciary and Access to Justice Supra note 2 (Chapter 29) 44 Live law News Network, Supreme Court to introduce court proceedings through video conferencing, e-filing will

be available 24/7, LIVE LAW (15 Mar. 2020, 11:04 PM), https://www.livelaw.in/top-stories/breaking-covid-19-sc-to-

introduce-court-proceedings-through-video-conferencing-e-filing-will-be-available-247-153876. 45 S. Basheer, In Search of the Self: Less is More Supra note 2 (Chapter 31) 46 ibid 47 Justice R. Babu, Legal Education Should Bridge the Gap Between Law and Justice Supra note 2 (Chapter 2) 48 Supra note 3.

279

http://www.livelaw.in/top-stories/breaking-covid-19-sc-to-

http://www.livelaw.in/top-stories/breaking-covid-19-sc-to-



Ishwar & Ors vs. State Of Maharashtra [2020 SCC Online Bom 402] – The

Right Aim Hit with the Wrong Arrow

Adv. Arjun Kadam & Mr. Sudhanva S. Bedekar1

Abstract

Recently, the Bombay High Court bench at Aurangabad, Maharashtra, struck down two

State Government orders which postponed elections of a large section of co-operative

societies in Maharashtra. The Court while doing so has solely relied upon the provisions of

the 97th Constitutional Amendment Act, 2011 as against relying upon the principle of

'disciplined non-extendibility of co-operative society office tenures’ as enshrined in the

parent statute. The judgement was advanced oblivious to the fact that the Gujarat High

Court had, in the case of Rajendra Shah v. Union of India, struck down the very same

Constitutional Amendment. In this case review, the author shall comment upon the principle

of effective operation of a High Court judgement beyond the territories of the State and the

effect of striking down of the 97th Constitutional Amendment on the State-based statutory

provisions amended in pursuance of that amendment. Given the principle that the Court

should ordinarily address only those issues that arise for determination, it was not necessary

for the Court to rely on the 97th Constitutional amendment, as it could have comfortably

relied on the provisions of the Maharashtra Co-operative Societies Act, 1960 and held that

the impugned orders were ultra vires the parent legislation as against ultra vires the

Constitution.

KEYWORDS - 97th Constitutional Amendment, elections, unconstitutional, Kusum Ingots,

Rajendra Shah, Co-operative Societies Act.


I. Introduction

On 11th March, 2020, the Hon’ble Bombay High Court ruled on the constitutional validity of two

State Government Orders, which inter alia, postponed the general elections of a large section of

co-operative societies in Maharashtra. The reason cited was the requirement of the staff members

of the co-operative societies in Maharashtra for administrative and allied work in facilitating a

‘loan waiver scheme’ which was implemented by the Government. These orders sprung up in the

alleged exercise of powers conferred under Section 73-CC of the Maharashtra Co-operative

Societies Act, 1960. As egregious as the Government Orders could be, they had an unusually

grave effect on the co-operative principles so far as the term and fixed durability of the managing

committee of the co-operative society is concerned. The said orders were challenged across all

benches of the Bombay High Court by way of writ petitions. The High Court Bench at

Aurangabad, Maharashtra was the first amongst all to finally decide these petitions. It declared

the Government Orders postponing elections of co-operative societies to be unconstitutional,

relying on the 97th Constitutional Amendment, 2011.2

The decision raises a conundrum about the validity of the impugned orders. Herein, two

fundamental points of law will have to been considered. Firstly, that the reliance on the

Constitution (97th Amendment) Act is misplaced as the Gujarat High Court has held it to be

1 Arjun Kadam, Advocate, High Court of Bombay & Sudhanva S. Bedekar, LL.M., Maharashtra National Law

University, Mumbai.

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unconstitutional and secondly, the impugned orders could have been struck down by holding

them to be extra-constitutional to the parent legislation.

II. The Maharashtra Co-Operative Societies Act, 1960 And Substantive Co-

Operative Principles:

The legislating power on the subject matter of "Co-operative Societies" has been consciously

bestowed upon the States by way of Item 32 in the State List. Thus, every State in India has its

independent law dealing with Co-operative Societies and their management. It was the 97th

Constitutional Amendment which invigorated the States to introduce suitable provisions in their

laws. Pursuant to this, amendments were carried out to the Co-operative Societies legislation in

the State of Maharashtra. Section 73-AAA3 states that the term of the office of the elected

members of the committee and its office bearers shall be five years from the date of election and

the term of office bearers shall be co-terminus with the term of the committee. The said

provision, interestingly, bears identical language as postulated by clause (2) of Article 243-ZJ4 of

the Constitution. Furthermore Section 73-CB5 was added, which constitutes the State Co-

operative Election Authority (for short, SCEA) for conduction of seamless Co-operative Society

elections. Clause 10 of the said provision postulates that notwithstanding anything contained in

any other law for the time being in force, the SCEA shall ensure that elections to the society are

held before the expiry of the term of the outgoing committee. The above provision bears

identical language with that employed in clause (1) and (2) of Article 243-ZK.6 Another addition

was that of Section 73-I7 which provides for appointment of an Administrator in case elections

could not be held for a particular society and the existing committee ceases to enjoy the term of

their office. The above provision seems to have derived its source from clauses (2) and (3) of

Article 243- ZL.8

Irrespective of any reference to the 97th Amendment, the above Maharashtra State Amendments

are self-eloquent about their derivation from the 97th Constitutional Amendment. The said

amendment is unpretentious in ensuring certainty and uniformity in the functioning of co-

operative societies under the auspices of a managing committee, which enjoyed the confidence

of the electorate. It was largely observed that managing committees of several co-operative

societies and banks hitched themselves for perpetuity on the seats irrespective of the termination

of its tenure and these circumstances went to the extent of the previous committee dauntlessly

continuing to run the affairs of the society irrespective of losing the confidence of the electorate.

This frustrated the co-operative principles, and hence the 97th constitutional amendment sought

to mandate a fixed tenure with a fixed termination of the outgoing committee. The fundamental

cooperative principle that office of the society shall not remain in abeyance or unparented, was

crystallised by a legislative mandate that the elections for the subsequent committee shall be held

even before the outgoing committee ceases to hold office by termination of tenure. This was to

3 The Maharashtra Co-operative Societies Act, 1960, S. 73-AAA, 4 India Const., art. 243-ZJ (2). 5 The Maharashtra Co-operative Societies Act, 1960, S.73-CB. 6 India Const., art. 243-ZK. 7 S. 73-I, The Maharashtra Co-operative Societies Act, (1960) 8 India Const., art. 243-ZL.

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ensure that the incoming committee immediately assumes office once vacancy is occasioned.

The provisions as regards appointment of an administrator in absence of an elected committee as

also the ones dealing with filling of vacancies by the existing members from a specified class,

speak volumes about the anxiety of the legislators to ensure compliance with the principle that;

“No seat shall remain in abeyance by reason of being unoccupied”.9

III. Faltered Fulcrum Of The Judgement Qua Judicial Misventuring On Non-

Existing Grounds:

The bone of contention in numerous petitions filed before the Court was that the impugned

postponement orders fall foul on the face of Section 73-CC. The said provision which was

inserted by way of an amendment in 201510 exudes that the general elections can be postponed

for a period of six months from the due date and for such further period not exceeding one year

from the said date. However, this can be done only in cases of conditions like drought, scarcity,

flood, fire, any natural calamity, rainy season, conflicting dates with election programme of State

or Parliament or a Local Authority. It was argued that no such factor as enumerated in Section

73-CC had occasioned in the State of Maharashtra. Moreover, it was also contended that the

impugned orders were in direct conflict with numerous provisions of the Act as also the 97th

Constitutional Amendment, as narrated above.

The fallacy is that the Court proceeds to deliver the judgement by plainly referring to and relying

upon the provisions of the 97th Constitutional Amendment. While doing so, it does not notice the

fact that the existence of the 97th Constitutional Amendment is itself in jeopardy by reason of it

being declared unconstitutional by the Gujarat High Court in the case of Rajendra Shah v. State

of Gujarat11 (hereinafter “Rajendra Shah”). Thus, the fulcrum on which the Hon’ble Court

ventures to declare the impugned law as unconstitutional, is lost by reason of Rajendra Shah. It is

beyond doubt that having demonstrated the impugned orders to be in direct conflict with the

settled co-operative principles, as enshrined in the statutory provisions, no court could have ever

allowed an executive fiat as arbitrary as this, to sustain. In this case, the Court does not consider

the conflict of the Government orders with the statutory provisions but relies solely on the 97th

Constitutional Amendment, thus also ignoring the consideration of a settled principle in co-

operative law that the society is to be heard before an exemption/exclusion from the statutory

rights/privileges/duties is imposed12. An argument could also have been advanced that Section

73-CC cannot be given effect to as it is contrary to the other provisions of the Act. This would

have automatically affected into the striking down of the impugned government orders.

However, lamentably, this aspect was not argued.

IV. Misplaced Reliance on The Constitution (97th Amendment) Act, 2011

There cannot be any doubt that the court has ultimately reached the right conclusion and struck

down the orders concerned. But unfortunately, it has done so by relying, not on the statutory

provisions contained in the Maharashtra Co-operative Societies Act, 1960 as amended up to the

9The Maharashtra Co-operative Societies Act, 1960, S. 73-I, 77-A; India Const. art. 243-ZL (2) & (3). 10The Maharashtra Co-operative Societies (Amendment) Act, 2015, S.2. 11 Rajendra Shah v. State of Gujarat, 2013 SCC Online Guj 2242. 12 The Maharashtra Co-operative Societies Act, 1960, S. 157.

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year 2015, but on the Constitution (97th Amendment) Act, 2011, being oblivious of the fact that

the Gujarat High Court, in the case of Rajendra N. Shah v. Union of India,13 had struck down the

97th Constitutional amendment on the ground that the procedure laid down in clause (2) of

Article 368 ought to have been followed while passing this amendment and that such procedure

not having been followed, the 97th amendment was liable to be struck down.

In light of the decision of the Supreme Court in Kusum Ingots & Alloys Ltd. v. Union of India,14

the judgement of the Gujarat High Court operates throughout India. In Kusum Ingots, the Apex

Court, while addressing issues regarding “cause of action” under Article 226(2), had made the

following observations in this regard;

“An order passed on a Writ Petition questioning the constitutionality of a

parliamentary Act, whether interim or final, keeping in view the provisions

contained in clause (2) of Article 226 of the Constitution of India, will have effect

throughout the territory of India subject of course to the applicability of the

Act.”15

Following the Apex Court, the Madras High Court, in the matter of Union of India v. Textile

Technical Tradesmen Association16, was considering the issue of enforceability of an award

made by the Special Industrial Tribunal under the provisions of the Industrial Disputes Act, 1947

and the notifications issued therein. During the course of hearing, it noticed a judgement of the

Andhra Pradesh High Court, which had declared S. 17A (1), (2) and (3) of the Industrial

Disputes Act, 1947 to be ultra vires the Constitution of India. It was contended that the

judgement of the Andhra Pradesh High Court would not have any operation in the Union

Territory of Puducherry (the Madras High Court also exercises jurisdiction over the Union

territory of Puducherry, in addition to the State of Tamil Nadu). However, the Court held that in

view of the judgement of the Apex Court in Kusum Ingots, the said provision was

unconstitutional throughout India and hence it found the concerned award to be unenforceable.

Furthermore, in the case of Anil Naik Gaunekar vs. State of Goa,17 the Bombay High Court

bench at Goa was hearing a challenge to an order of the Registrar of Co-operative Societies. The

Petitioners had also challenged the Constitutional validity of S. 67-A of the Goa Co-operative

Societies Act, 2001. The Court found the order concerned to be illegal, ultra vires and in breach

of the provisions of S. 67-A and hence set it aside. It did not find it necessary, having set aside

the order concerned, to go into the question of challenge to the Constitutional validity of the

provision concerned. It has, however, taken due note of the judgement of the Gujarat High Court

in the case of Rajendra Shah18 and also the judgement of the Apex Court in Kusum Ingots but

found it unnecessary to venture into the entire controversy. Interestingly, the 97th Constitutional

amendment is also the subject matter of challenge before the Bombay High Court in the case of

Sudhakar Gopal Patil vs. Union of India.19 When the matter was heard by the Court, it was

13 Rajendra N. Shah v. UOI, 2013 SCC Online Guj 2242. 14 Kusum Ingots & Alloys Ltd. v. UOI, (2004) 6 SCC 254. 15 Id., 22. 16 UOI v. Textile Technical Tradesmen Association, 2014 SCC Online Mad 7158. 17 Anil Naik Gaunekar v. State of Goa, 2018 SCC Online Bom 1991. 18Rajendra N. Shah v. UOI, 2013 SCC Online Guj 2242. 19 Sudhakar Gopal Patil v. UOI, 2015 SCC Online Bom 785.

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brought to the notice of the Court that the Gujarat High Court in Rajendra Shah’s case had struck

down the said constitutional amendment and that an SLP is pending against the said judgement

before the Apex Court. Having been confronted with the judgement in Rajendra Shah and the

law laid down in Kusum Ingots, the Court thought it fit to adjourn the matter sine die.

In these circumstances, the Bombay High Court bench at Aurangabad could not have relied upon

the 97th Constitutional Amendment in order to strike down the impugned notification in question.

In view of the fact that the entire ratio of the judgement of the Bombay High Court is based on

the 97th Constitutional Amendment, and in view of the fact that the Court did not notice the order

of the Principal Bench of the Bombay High Court adjourning20 the hearing of a Petition

challenging the very same constitutional amendment, the basis of the judgement of the Bombay

High Court bench at Aurangabad is lost. There are several petitions pending at the Principal seat

of the Bombay High Court as well as the Bench at Nagpur, which deal with the same subject

matter and therefore, in a given case, it would be necessary to consider the entire issue afresh.

While so considering, the Bombay High Court may easily bypass the judgement of the Gujarat

High Court and simply rely on the existing provisions of the Maharashtra Co-operative Societies

Act, 1960, which are unaffected by the judgement of the Gujarat High Court, and ultimately

reach the same conclusion.

V. The Possible Rectification–Statutory Laws Continue Holding The Field

irrespective of Rajendra Shah:

A three-judge bench of the Allahabad High Court presided by Dr. Chandrachud CJ (as his

Lordship then was), in the case of Committee of Management of Sahkari Ganna Vikas Samiti v.

State of U.P,21 was answering a reference of a question whether the High Court could issue a

writ in order to extend the term of a managing committee of a co-operative society even though

it has come to an end in accordance with Section 29 of The U.P. Co-operative Societies Act.

Several provisions of the said Act were amended in 2013, pursuant to the 97th Constitutional

amendment. The Court noticed the judgement of the Gujarat High Court but held that the

amendments to the Co-operative Societies Act still held the field. It said no more about the 97th

amendment being declared ultra vires. As seen earlier, post the enactment of the 97th

Constitutional amendment Act, 2011, several States amended their respective co-operative

societies legislations in order to make them compliant with the concerned constitutional

amendment. It is necessary to state that the though the statutes were amended post the 97th

Constitutional amendment, the same being struck down would have no effect whatsoever on

such statutory amendments.

VI. Conclusion:

The striking down of the 97th Constitutional Amendment Act, 2011 does not consequently render

unconstitutional, the amendments to the various Co-operative Societies legislations which

fundamentally stand on the principle of 'non-extendibility of office tenures'. Hence, the Court

could have comfortably placed reliance on the provisions contained in the Maharashtra Co-

operative Societies Act, 1960 and struck down the impugned orders as being ultra vires the

20 Id. 21 Committee of Management of Sahkari Ganna Vikas Samiti v. State of U.P., 2014 SCC Online All 15710.

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parent statute, as against ultra vires the Constitution. Lastly, amidst the nation-wide lockdown in

light of the COVID-19 pandemic, the State Co-operative Election Body cannot be held

contemptuously liable for not being able to conduct elections within the statutory timelines,

pursuant to Ishwar. Interestingly, an application by the said Election Body praying for the above

declaratory relief was allowed by the same bench as that in Ishwar.22

22 State Co-operative Election Authority v. Ishwar, 2020 SCC Online Bom 449.

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CASE COMMENTARY

RAJ Rewal vs. Union of India & Ors. CS (COMM) 3/2018, IA NO. 90/2018, IA NO. 92/2018.

Deeksha Prakash1

Abstract

The creator of a work holds exclusive copyright over it. This rule is, however, inapplicable to

architecture as the rights of the landowner are involved too. This case comment analyses Raj

Rewal v. Union of India & Ors,2 an unprecedented case that establishes the difference

between architecture and other protected works through a comparison between partial and

complete destruction of an architectural structure, and its effect on the architect’s rights.

The main issue before the court – Whether an architect can object to the complete

destruction of his work by the legal owner of the structure and the land on which it is

constructed? – is scrutinized by this paper. This case, distinctive to the world of Intellectual

Property Rights, has specifically been chosen as the judgment wholly depends on the

interdisciplinary analysis of the rights of both parties to the case, each conferred by different

legislation – the Indian Constitution and the Copyright Act – to establish predominance that

assists a favourable ruling for one party over the other.


I. Introduction

Raj Rewal v. Union of India & Ors.3analyses the difference in the applicability of Copyright Law

for architectural works. Since a building/structure is constructed on land, laws and rights

governing land are involved too. This case compares the rights of a landowner against that of a

copyright owner, in other words, the right to property against the legal protection of one’s

intellectual product. This case was born due to the overlap of the landowner’s right to free usage

of his property and the architect’s copyright over his work. It, in turn, emphasizes the differential

effect of complete destruction of a work as compared to partial destruction, a subject never

addressed before in the history of Indian Copyright Law, hence, a matter of in-depth analysis.

This case holds a unique position in IPR law as it captures the legal difference faced by

architectural works as compared to other works, arising due to 2 reasons:

1. Unlike architecture, other protected works add value to the medium through/on which they are

expressed like canvases, tapes etc., which by themselves have minimal value. In architecture, the

structure is constructed on land which not only has a considerable value of its own but also

appreciates with time.

2. Unlike in other protected works, an architect’s copyright is not exclusive to him. Several

entities (and their rights) are involved too. Thus, the case elucidates the position of Copyright of

the artist/author as against the Constitutional rights of the owner of the land and the property

attached to it.

II. Description And Background Information

The plaintiff, an internationally-renowned doyen in architecture, earned his repute by designing

several celebrated structures throughout a 40-year career. The Hall of Nations and the Nehru

1Deeksha Prakash - Student, Symbiosis Law School, Hyderabad. 2CS (COMM) 3/2018, IA No. 90/2018, IA No. 92/2018. 3Ibid.

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Pavilion, the structures in question, were some of his infamous creations upon which he

exclusively owned copyright. Considering their significance, the Indian National Trust for Art &

Cultural Heritage (“INTACH”) included them in a list of 62 iconic buildings to be

commemorated as heritage sites by the Heritage Conservation Committee (“HCC”). However,

before the HCC made its declaration, the ITPO expressed the intention to destroy the structures

to redevelop the Pragati Maidan Complex (“the project”). Resultantly, the plaintiff filed a writ

petition for revocation of the ITPO’s intention which was dismissed as pendency of the HCC’s

declaration was insufficient ground for delaying the project. Thereafter, the plaintiff filed another

two-fold writ petition to:

1. Declare the structures to be of “National Importance” and

2. Order their preservation.

This petition, too, was dismissed to which the plaintiff filed an appeal. Sadly, before the appeal

could be heard, the ITPO materialized its intention. As a result, the plaintiff initiated this suit in

2018 seeking compensation from the defendants via reconstruction of the buildings according to

his original plan, either in the same locality or an equally prominent locality in New Delhi.

The issue for consideration before the Delhi High Court was – Whether the plaintiff, an architect

with exclusive copyright protection over his works, had the right to stop the defendants (on

whose land the buildings were constructed) from destroying his work which, if already carried

out, had the right to seek compensation for said destruction? To address this issue, some sub-

issues needed deliberation, such as – Whether “destruction”, though not expressly mentioned in

Section 57 of the Copyright Act (“the Act”), can be inferred under the phrase “...or other act”4?

Whether the plaintiff can claim damages under Section 57 for the complete destruction of his

work5?

Hon’ble Rajiv Sahai Endlaw, J., the sole judge in this case, ruled in favour of the defendants and

rejected the plaintiff’s objection to their destruction as the latter failed to establish his right under

Section 57, thus, a cause of action altogether.

III. Case Analysis

The court reasoned its judgment on two focal points viz. the interpretation of Section 57 of the

Act and the difference between the legal position held by landowners and copyright owners.

Firstly, the language of Section 57(1)(b) expressly states, “distortion, mutilation, modification”

which all refer to partial destruction of a work, unlike the case at hand. The bench further

clarified that “or other act”, though implicit of acts similar to distortion, mutilation and

modification, needed to be read with “prejudicial to his honour or reputation”6, therefore,

establishing the disparity between partial and complete destruction of a work. Section 57 applies

to the former and provides the artist with a possible remedy. However, in case of complete

destruction, such as this case, Section 57 shall become inapplicable due to the impossibility of

prejudice to the artist’s honour or reputation as the work is not publicly visible to allow the

formation of an ill opinion. This further elucidated the object of Section 57 – to prevent the

artist’s work from being portrayed as anything other than he/she originally planned, to be viewed

4The Copyright Act, 1957, Copyright Office, Government of India § 57, Cl. (1)(b). 5The Copyright Act, 1957, Copyright Office, Government of India, § 57. 6Id. At 3.

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and opined upon by the public, hence, potentially discrediting his/her honour or reputation. The

court also analyzed the US and Australian copyright legislation to demonstrate that neither of

them prohibits complete destruction of the protected work for similar reasons.

Secondly, unlike other protected works where the medium and the creative work, both belong to

the author, the land on which architectural works are constructed doesn’t usually belong to the

architect. Besides, since land is a limited asset (unlike architecture), it exceeds such structures in

monetary and legal value. Considering land as a valuable asset by itself (unlike mediums in other

protected works) with separate laws governing it, the rights of the landowner shall be considered

alongside that of the copyright owner. There is a major difference between their rights – a

landowner has the constitutional right to property while a copyright owner has statutory moral

rights. While the court emphasized the importance of both rights being harmonious to one

another, it was impossible to respect the right of the copyright owner (“plaintiff”) to preserve his

original work and that of the landowner (“defendant”) to freely utilize his land in this case. The

court was obligated to identify and rationalize the rights that would receive preference. Thus, as

the right to property is a common law right, constitutional right7and a human right8in comparison

to moral rights which are merely statutory, the rights of the landowner/defendant would prevail

over that of the copyright owner/plaintiff. Further, Article 300A of the Constitution confers the

right against deprivation of one’s property, except “by authority of law”.9Therefore, an

individual may be deprived of his/her right to property only if expressly provided in a statute and

upon fulfilment of the following conditions: 1. The statute must be interpreted to least interfere

with the landowner’s right to property, 2. The statute must be reasonable and in public interest,

and 3. Reasonable compensation must be paid in exchange for such acquisition by the state.10

Moreover, constitutional rights hold a higher place than statutory rights in Indian law. In this

case, the court referred to the landmark decision of K.S. Puttuswamy v. Union of India11to

expand the basis of bestowing a right with a constitutional element – to immunize it from the

whims of the popular opinion/legislative majority. To the contrary, a statutory right can be

amended, altered or annulled by a simple legislative majority. Therefore, a constitutional right

(to property) cannot be ignored for statutory protection (under the Act).

Additionally, the court divulged into the significance of urban planning and development over

the preservation of architectural design. It held that replacing architecture is a task governed by

town planning laws, environmental laws, building bye-laws, etc., not by copyright law.

Therefore, the plaintiff’s urge to perpetually preserve his work in its original form is

unreasonable and the destruction of his work for urban development cannot be objected to, as

favoured by the explanation to Section 57(1)(b).12

The court also referred to Architecture Studio and Architectes Associes Pour L'environnement v.

7ICICI Bank Ltd. v. Sidco Leathers Ltd., (2006) 10 SCC 452. 8Chairman, Indore Vikas Pradhikaran v. Pure Industrial Coke and Chemicals Ltd., (2007) 8 SCC 705; Karnataka

State Financial Corporation v. N. Narasimahaiah, (2008) 5 SCC 176. 9India Const. art. 300A. 10Chairman, Indore Vikas Pradhikaran v. Pure Industrial Coke and Chemicals Ltd., (2007) 8 SCC 705. 11(2017) 10 SCC 1. 12Id. At 3.

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Organisation of Labour Housing (OEK)13of the Athens Court of First Instance. The case

revolved around building plan submissions for the Olympic Village in the 2004 games. The

winning plan was to be utilized for habitable urban housing. The winning team, however,

objected to the plan that was submitted for the Ministry’s approval as it was considerably

changed. Their demand for submission of the original plan was eventually rejected as the

claimants’ interests were to be balanced with that of the legal owners of the plan. Since the

copyrighted work of the architects and the legal title of the building owners were both

represented by a singular structure (as in the case at hand), the latter will always prevail over the

former as the transfer of ownership of the building denotes the surrender of moral rights of the

creator. The court’s rationalization in the case of Raj Rewal v. Union of India & Ors.14is

consistent with that of the Athens Court. Therefore, in light of the aforementioned reasons, the

judgment, in this case, was not only appropriate but momentous in the domain of Indian

Copyright Law. It conforms to the current copyright legislation and further clarifies tacit legal

aspects. Though there could be a higher emphasis on the difference, in effect, between complete

and partial destruction, it does not compromise the merit of the judgment. The court provided

satisfactory justification for its decision. Pertinently, this judgment provides ample opportunity

for improvement in the subsisting copyright law in India to effectuate further clarification to

prevent similar cases from knocking the doors of justice in the future.

IV. Conclusion

A thorough factual perusal of this case has led to some crucial findings that further justify the

court’s decision in favour of the defendants. Firstly, as established, Article 300A, a constitutional

right, will prevail over Section 57, a statutory right. Article 300A confers positive and negative

rights, either of which may be exercised by the defendants. Negative rights include the right to

destroy the property (lat. jus abutendi). Such destruction, whether complete or partial, cannot be

opposed as the transfer of the title to a property is equivalent to the surrender of the moral rights

of the architect. The consideration paid to purchase the property includes its structural design

and, thus, acts as a reward for the architect’s creativity. This transaction, once complete, thereby,

prohibits the architect from claiming ownership over his design and demanding its preservation

in its original form for eternity. Therefore, the defendants, as legal owners of the disputed

structure and land underneath it, have the liberty to destroy the structure.

Secondly, the reference made, by the counsel for the plaintiff, to the infamous Amar Nath Sehgal

v. Union of India15case is incorrect due to the following differences:

Amar Nath Sehgal was a sculptor who owned his work and the medium on which it was

expressed (the canvas),

He was requested (by the government of India) to adorn the “Vigyan Bhavan”, the house

of international conferences, to represent Indian culture. Therefore, his work was of

national importance, and

His work was partially destroyed, hence, allowing an opportunity for prejudice to his

honour and reputation amongst the viewers/public who are unlikely to know that the

13[2002] E.C.D.R. 36. 14Id. At 1. 152005 (30) PTC 253 (Del).

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work portrayed to them is not the original work of the artist. None of the

aforementioned conditions are fulfilled in this case.

Thirdly, Section 57 applies solely in partial destruction of the work to prevent preservation and

use of the author/artist’s original idea by another person. Complete destruction renders such

cases impossible as no part of the artist’s original idea is preserved. The primary structure is

destroyed only to create a novel structure, the copyright of which will lie in the hands of the

latter’s creator. The pivotal shift from the “Sweat of the brow” doctrine to the “Modicum of

Creativity” doctrine16depicts the same. The Delhi High Court, in Dr. Reckeweg and Co. Gmbh.

and Anr. v. Adven Biotech Pvt. Ltd.,17necessitated that a work, to be eligible for legal protection,

must originate from the author/artist and must not be a copy of another. The USA Supreme

Court18and the England Chancery Division19reflect the same.

V. Alternatives suggested:

1. The interpretation clause of the Act may be expanded to include ‘reputation’, ‘honour’

and ‘artistic character of a work’. Further, separate provisions may be inserted to convey

which acts are prejudicial to the author/artist’s honour and repute.

2. Section 57 may be expanded to expressly clarify its applicability to the partial destruction

of works only.

3. A separate provision may be inserted stating that the constitutional right to property of

the landowner would prevail over the moral rights of the artist in case of architectural

works.

4. A provision may be inserted conveying that a work, except those formally declared to be

“of national importance”, may be destroyed for modernization and industrialization.

16Eastern Book Company v. D. B. Modak, 2002 PTC 641. 17I.A. 7326/2007 in CS (OS) 1189/2007. 18Feist Publication Inc. v. Rural Telephone Service, 499 U.S. 340, 342 (1991). 19University of London Press v. University Tutorial Press, [1916] 2 Ch. 601.

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Buyer’s Cartels: An Amendment too Late

Hartej Singh Kochher1

Abstract

This legislative comment aims to examine a proposed amendment suggested by way of the

Draft Competition Law (Amendment) Bill, 2020 to the Competition Act, 2002 to include

within the definition of a ‘cartel’ under the Act, a ‘buyer’s cartel’. This study will delve into

the decisional practices of the Competition Commission of India, while dealing with buyer’s

cartels and offer insights into the same. It will also discern as to why the amendment was

needed. The amendment process and the rationale for the amendment will be elucidated.

Finally, the author will offer his comments on the same.


I. Buyer’s Cartels: An Amendment Too Late

The Competition Commission of India (CCI), is a regulatory body established under The

Competition Act, 2002 (the ‘Act’, hereinafter), which became functional in mid 2009.2 One of

the mandates of the CCI, as enshrined u/s. 3 of the Act, is to prohibit anti-competitive

agreements. It is u/s. 3(3) of the Act that cartelization is dealt with. It is considered to be a “per

se” violation3 of the Act, if a cartel, by way of an agreement with its cartel members, fixes prices,

output, divides the market, or indulges in bid rigging/collusive bidding.4

Since 2009, CCI as the sectoral regulator has evolved a distinct competition law jurisprudence,

which has been accompanied by the decisions of the Appellate Body5 and the Constitutional

Courts. In 2018 it was felt by the Government that there was a need to initiate reforms through

the learnings of the functional years of the CCI. In furtherance of this, a ‘Competition Law

Review Committee’ (CLRC), was structured to confirm that the “Legislation is in sync with the

needs of strong economic fundamentals,”6and to ensure that competition law was “strengthened,

and re-calibrated”.7

The brief given to the CLRC included a review of the present Competition Law framework, in

light of the dynamic business environment.8 The CLRC submitted its report in August 2019.9

1 Hartej Singh Kochher - Assistant Professor of Law, ICFAI Law School, Hyderabad. 2 This was necessitated due to the constitutional challenges to various provisions of the Act, and subsequent amendments

brought about in the year 2007, as a result. See Brahm Datt v. Union of India, (2005) 2 SCC 431. 3 Presumed violation. In this case, the burden of disproving the violation is on the alleged violator. 4 Competition Act, 2002, No. 12, Acts of Parliament, 2002§ 3(3). 5 Earlier, the Competition Appellate Tribunal and now, the National Company Law Appellate Tribunal. 6 Government constitutes Competition Law Review Committee to review the Competition Act, PRESS INFORMATION

BUREAU, GOVERNMENT OF INDIA, MINISTRY OF CORPORATE AFFAIRS (May 20, 2020, 10:00 AM),

https://pib.gov.in/PressReleseDetail.aspx?PRID=1547975. 7 Ibid. 8 Ibid. 9 Report of the Competition Law Review Committee submitted to Union Finance and Corporate Affairs Minister, PRESS

INFORMATION BUREAU, GOVERNMENT OF INDIA, MINISTRY OF CORPORATE AFFAIRS (May 20, 2020,

10:05 AM), https://pib.gov.in/newsite/PrintRelease.aspx?relid=192629.

Full report available at: http://www.mca.gov.in/Ministry/pdf/ReportCLRC_14082019.pdf.

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And, acting on the counsel of the Report, a Draft Competition Law (Amendment) Bill, 2020 was

published, by the Ministry of Corporate Affairs to invite suggestions from the public at large.10

In the Draft Bill substantial amendments to the law have been suggested. For this study, the

focus will only be on the amendment proposed to s. 2(c) of the Act, which defines ‘cartel’. The

proposed change to the definition aims to bring within the purview of the Act, “buyer’s cartels”.

This was warranted due to a lacuna in the law, which meant that if a case came up before the

CCI for adjudication, which involved a cartel of buyers, it would be powerless to Act. Even if

there would be an appreciable adverse effect on competition,11 the CCI’s hands would be tied.

The definition of a cartel as proposed to be amended by the Draft Bill, under Section 2(c) would

be (with proposed amendments underlined and italicised):

““cartel” includes an association of producers, buyers, sellers, distributors, traders

or service providers who, by agreement amongst themselves, limit or control or

attempt to limit or control the production, distribution, sale or price of, or, trade in

goods or provision of services.”

As can be discerned, the specific intent of the proposed amendment is to bring within the ambit

of a ‘cartel’, a buyer’s cartel. The CCI has dealt with cases in its formative years, which pertain

to buyer’s cartels. The determination for the jurisdictional intervention of the CCI in such cases

has been distinctly varied, which merits discussion to understand the need for such an

amendment.

The first such case which came up before the CCI for adjudication was Pandrol Rahee

Technologies Pvt Ltd. v. Delhi Metro Rail Corporation and Ors.12The informant had alleged

anti-competitive conduct, by virtue of agreements and abuse of dominance, by the five Opposite

Parties in the procurement of the “rail fastening systems for ballast less track in metro rails” in

India. It was alleged that there was no tendering process initiated by the Delhi Metro Rail

Corporation (DMRC) for the procurement, which was incumbent upon a public body. The

DMRC had even recommended the products it had procured to other Metro rail projects in

different cities as well.

As per the majority’s view, the procurer was a consumer, i.e., a buyer, since the “production

chain can be said to end where the last transaction takes place and after which point the utility of

the product or service is consumed by the person who buys it”. The DMRC and the other metro

projects had satisfied this criterion. In this case, there was a presumption that the consumer knew

what was best for him, even though it was a public body; it was an entity which was a

representative consumer on behalf of the public. Hence, the consumer could freely exercise

consumer choice and freely select a product.

10 Draft Competition (Amendment) Bill, 2020, MINISTRY OF CORPORATE AFFAIRS (May 20, 2020, 10:10

AM), http://feedapp.mca.gov.in/pdf/Draft-Competition-Amendment-Bill-2020.pdf

11 Appreciable adverse effect on competition is the marker used by the CCI to determine whether an agreement is

anti-competitive. It takes various factors into account which are given under Section 19(3) of the Competition Act,

2002.

12 Case No. 3 of 2010, Order dated 7th Oct., 2011. (One order given by the majority and one dissenting order. This

study will only be confined to the majority order as the dissent did not address any of the issues relevant for this

study.)

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The legal reasoning given was that the factors enumerated u/s. 19(3) to determine the appreciable

adverse effect on competition, did not envisage a consumer to be able to cause competitive harm.

Also, s. 3(3) specifically stated that entities forming a cartel, needed to be engaged in “identical

or similar trade”, and the term ‘acquisition’ was not stated in the definition of ‘trade’13 under the

Act. Hence any acquisition i.e. purchases, did not qualify as trade and flowing from that, no

consumer could be brought under the ambit of s. 3(3). Thus, a buyer’s cartel would be outside

the jurisdiction of the CCI.

In the case of XYZ vs Indian Oil Corporation and Ors.14, the informant alleged that the Opposite

Parties had indulged in collusive/joint tendering. The Opposite Parties were three public sector

oil companies and the tender pertained to procuring the services of Tank Trucks for

transportation of LPG cylinders. While delving into the merits of the case, it was explicitly stated

that “…the Commission notes that in the present case the Informants have alleged an existence

of a buyer/purchase cartel. Section 3(1) and 3(3)(a) covers both sellers’ as well as buyers’

cartel…”

According to the order, s. 3(1), which puts a bar on anti-competitive agreements, clearly

mentioned the term ‘acquisition’. Also, pricing fixing,15 given as a per se violation u/s. 3(3)

clearly mentions that fixing of a purchase price is a violation. Consequently, buyers’ cartels

could be dealt with by the CCI.

However, striking a cautious note, it was observed, “… the creation of ‘buyer power’ through

joint purchasing agreements may rather lead to direct benefits for consumers in the form of

lower prices bargained by the buyers”. Consequently, “…treating buyers’ arrangement/cartel,

at par with sellers’ cartel may not be appropriate”. Thus, each case needs to be adjudicated

upon its unique factual matrix.

The CCI did not even mention the definition of “trade” as it had referenced in the ‘Pandrol’ case.

To the author, the reasoning given in ‘Pandrol’ seems to stand on a firm legal footing. The

decision in ‘XYZ’ is flawed. As per a strict, “letter of the law” interpretation, s. 3(3) mentions

the “identical or similar trade” criteria and even though the Opposite Parties were ostensibly in

the same trade, they were ‘acquiring’ the service (of the trucks) for their final consumption,

thereby, becoming consumers of the service. As per the scheme of the Act, the consumer cannot

be construed to be a part of a cartel. Buying goods or services for final consumption cannot

reasonably be stated to be a ‘trade’.

The CLRC was mindful of the fact that there was no explicit mention of “buyers” in the

definition of a cartel. The committee took cognizance of the XYZ case and stated that the absence

of such verbiage had not prevented the CCI from recognizing buyers’ cartels. But the report did

not refer to the ‘Pandrol’ case. It recommended the addition of the term “buyers” in s. 2(c) of the

Act, to bring the definition in line with the decisional practices of the Commission and to make

the definition more comprehensive.

13 Competition Act, 2002, No. 12, Acts of Parliament, 2002, § 2(x).

14 Case No. 5 of 2018. Order dated 4th July, 2018.

15 Competition Act, 2002, No. 12, Acts of Parliament, 2002, § 3(3)(a).

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The author would like to point out that the ‘Pandrol’ case was decided in 2011, and the XYZ case

in the year 2018. This is a gap of seven years during which such an amendment could be

proposed and adopted. The opinion in XYZ is correct to the end that buyer cartels may reap

benefits for the consumer. But in the odd chance, that they impact competition in the markets,

they need to be nipped, and the CCI, till now, has no explicit legislative powers to do such a

thing. The reasoning in XYZ is not on a sound legal footing.

If timely amendment processes were initiated and yearly reviews of the legislation were

undertaken, then, the Commission would not have had to resort to specious reasoning to arrogate

to itself jurisdiction which it does not possess, as it has done in the XYZ case.

It is hoped in earnest that the Draft Bill, as far as it addresses the “buyer’s cartels” becomes the

law of the land. The CCI cannot have a type of cartel, which might also adversely affect

competition, outside the scope of its power. A welcome step in the right direction, albeit very

late.

In absence of such an amendment, imagine a scenario where one buyer is a customer for 40

percent of a particular product’s production. If such a buyer would bring down his demand to 10

percent there would be a demand-supply mismatch, and the prices would fall. If such a buyer,

got together with another buyer, who has 20 percent of the demand for the same product, then

together, they would be able to account for 60 percent of the purchases and would be in a

position to lobby together for beneficial pricing, perhaps even to the detriment of the remaining

40 percent of the buying market. In such a hypothetical, the CCI would have no powers till the

amendment process is completed (unless they resort to superficial reasoning as they did in the

case of XYZ).

Further, it is also suggested that the CCI should undertake a periodic review of the legislation, to

address the lacunae in implementation. This review definitely should not be a once in 10-year

review as it has turned out to be. The constitution of the CLRC, then its deliberations before

submitting the report, and the release of the Draft Bill for public comments has made the review

process itself almost two years long. This delay is unacceptable. And, we are no closer to the

amendment due to the fore-mentioned delays and the Coronavirus pandemic.

Finally, it would help if the CCI, as a regulator, follows the “doctrine of precedent” to ensure

continuity in its reasoning and rationale for its decisions. With no reference to the only other

buyer’s cartel case decided by it – 'Pandrol’, the CCI in the ‘XYZ’ order makes one believe that

ad-hoc adjudications are being made, which leads to uncertainty in the regulatory process. Even

if the reasoning in an old order does not appear sound to the bench deciding a matter at hand, it

should be specifically overruled, so as to not lead to a scenario in which we stand today – two

divergent decisions regarding the same subject matter.

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Brief Analysis of Constitutionality of Section 12 (F) of Data Protection Bill

Deeksha Sabharwal1

Abstract

India will be becoming a digital economy of 1 trillion, implies that its value will be equivalent

to 18-23 percent of nation’s nominal GDP.2 Since digital reliability is increasing rapidly, it

becomes crucial to have laws and regulation regarding digital space. Working for the same, a

personal data protection bill was introduced in Parliament on December 11th, 2019. The bill

will be necessary for governance due its ‘protective’ nature. This paper will analyse Section

12(f) of the bill in the light of constitutional principles. The Supreme Court of India, in the

case of R. Rajagopal v. State of Tamil Nadu3 has held that citizens have the right to protect

their privacy and the publication of personal information without consent regardless of the

nature of content of such publication may violate the privacy of the person concerned. But

the case also noted that publication of information which is available in the public domain

does not violate the right to privacy of concerned individuals. The paper attempts to suggest

the loopholes and relevant suggestions which are in consonance with rule of law.


I. Introduction to key Terminologies of the Data Protection Bill

The Personal Data Protection bill was drafted after the recommendations of Justice B.N.

Srikrisna Committee report. The committee analysed the need of law for protection of rights of

individuals in an era of rapidly expanding digital economy. The draft prepared by committee

strictly kept regard to privacy of individuals and guidelines of Aadhar Case.4 However, the

author analysed some inconsistencies in the bill. In the current research stress is placed upon

determining the constitutionality of Sec. 12(f) of the bill. Noteworthy, the dubitable provision

was nowhere mentioned in the bill, even after the introduction of the bill, Srikrisna J. advocated

the review of bill due to his disappointment by the provisions and went on to state that the

provisions of bill may lead to Orwellian state.5

Since the bill is technical it is crucial to introduce the key terminologies which are used

throughout the bill, these terminologies will also provide a fair idea of the theme of the bill.

a. Personal Data6- Any data which can lead to identification of an individual may be termed

as personal data, as noted by the draft committee that with regard to the pace of

technological advancements, it would be in the interest of justice to have a broad definition

of the term ‘Personal Data’. Further, the bill fails to differentiate between some technical

terms, like - De-identification, Pseudonymisation, Anonymisation. The latter two terms fall

on a high spectrum where the de-identification ends. Pseudonymisation refers to granting a

fictional identity to data principle in order to retain his privacy, while Anonymisation refers

to nullifying the identity of the data principle. De-identification, which is mentioned in Sec.

2(16) of the bill, refers to scattering the data collected in such a manner that it becomes

1 Deeksha Sabharwal - Fourth Year, B.A. LL.B. Manipal University, Jaipur. 2https://www.thehindubusinessline.com/info-tech/digital-economy-a-1-trillion-opportunity-for-india/article26323

150.ece last accessed on 04/04/2020 3 R. Rajagopal v. State of Tamil Nadu, 6, SCC 632, (SC: 1994) 4 (2017) 10 SCC 1. 5https://economictimes.indiatimes.com/news/economy/policy/personal-data-protection-bill-can-turn-india-into-or

wellian-state-justice-bn-srikrishna/articleshow/72483355.cms?from=mdr last accessed on 05/04/2020. 6 Personal Data Protection Bill, 2019, § 2(28).

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difficult to reconcile it. However, if the high-end barrier is set which requires the re-

identification to be an impossible process then it will be practically difficult and it may

affect potential benefits which are obtained from data sets.

b. Sensitive Personal Data7- Although measures are present for protection of personal data,

then also to minimise the possibility of the misuse of the data which can cause relatively

greater harm to the data principle this category is created. Due to absence of any straight-

jacket formula for determination of sensitive personal data, due regard is given to the

contextual approach, according to which the nature of the data i.e., whether it is personal

data or sensitive personal data depends on the circumstances from case to case but then this

will put an extra burden on data fiduciary to determine if a case contains sensitive personal

data or not. Therefore, a better approach has been adopted by the drafters, it listed a non-

exhaustive type of personal information which will also give liberty to data fiduciary to

determine the case apart from the list.

c. Consent8- Consent basically means, with regard to instant bill, a right granted to data

fiduciary by the data principle to access the information which is relevant for the specific

purpose, Sec. 2(10) and Sec. 2(11) deals with formalities of consent. If we consider regular

forms of digital consent, it is mainly obtained by the software one signs in, the applications

one downloads and websites one access. As mentioned by the draft committee these forms

of consent are often boilerplate. Generally, they are such that it is not convenient to read

them by a layman, if it is readable then it is tough to understand, and even if one

understands these terms are non-meaningful in isolation.

d. Data Principal9- The person whose data is being processed for the purpose of common

public good and in propagation with free and fair digital economy, is to be known as Data

Principle and the term ‘principal’ emphasizes on the importance of autonomy of

Individual’s Data.

e. Data Fiduciary10- Data Fiduciary refers to a person, State, company or any Juristic

entity to process the data. The abovementioned authorities are expected to act reasonably

and take the step which is in the best of interest of the Data Principal.

f. Difference between Privacy and Anonymity - Although both the terms ‘Privacy’ and

‘Anonymity’ sound a lot similar but a difference is made between the two.11 Both

anonymity and privacy do not let the third-party gain access to data but both follow a

different approach for the same purpose. Privacy refers to concealment of information,

whereas Anonymity refers to concealment of the identity of the data principle. An

authorised access to data of individuals will amount to breach of privacy while the case

where the government collects the data in advancement of national interest or public good

will serve as legitimate state interest. If the State preserves the anonymity of the individual

7 Personal Data Protection Bill, 2019, § 2 (36). 8 Personal Data Protection Bill, 2019, § 2 (10). 9 Personal Data Protection Bill, 2019, § 2 (14). 10 Personal Data Protection Bill, 2019, § 2 (13). 11 Jeffrey M. Skopek, Reasonable Expectations of Anonymity ,101 Va.l.rev. ,691-762, 2015.

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it could legitimately assert a valid State interest in the preservation of public health to

design appropriate policy interventions on the basis of the data available to it. Apart from

this, it becomes immensely important to put checks on the procedure and reasoning of the

government in collection of data, in order to sing with the spirit of the Constitution.

II. Relation Between Right to Privacy and Digital Informational Privacy

Earlier there was confusion as to whether Right to Privacy is a guaranteed fundamental right or

not, before Aadhar case12, M.P. Sharma and Others v. Satish Chandra Distt. Magistrate, Delhi

and Others13 (the eight-judge bench stated that right to privacy is not a Fundamental Right) and

Kharak Singh v. State of U.P.14 discussed the scope of right to privacy as a fundamental right.

Recently, in 2017 the Aadhar Case15 clarified that right to privacy is a fundamental right

protected under Arts. 14, 19 and 21. Right to privacy covers a wide range of non-exhaustive list

of the sub-topics covered under it, for example, concept of privacy may be subjective with

respect to time-frame, back in 19th century it may be irrelevant to discuss the concept of data

privacy and breach of privacy by paparazzi might seem to be a greater concern but when the

world is being dependent of digitised data then it becomes crucial to introduce the data

protection legislation with utmost care, deviating from which may lead to destruction of welfare

state.16

It is important to note that privacy has both positive and negative content. The negative content

restrains the State from committing an intrusion upon the life and personal liberty of a citizen. Its

positive content imposes an obligation on the State to take all necessary measures to protect the

privacy of the individual.17 Introducing an error-ridden bill will be unjust behaviour with both

the content.

Another facet of Right to Privacy is the Informational privacy, which is based on the fact that

every transaction or digital step by an individual leaves some marks which can be traced without

her knowledge, if seen in isolation then these silos do not constitute substantial information but

when combined then it can be a serious threat to privacy of an individual. This right needs to be

protected from both state and non-state instrumentalities. Every individual should have a right to

be able to control exercise over his/her own life and image as portrayed in the world and to

control commercial use of his/her identity.18 And this is the affair which shall remain private in

order to make it convenient for the concerned individual to live his regular life most possible

convenience. Right to privacy encompasses the right to informational and data privacy in it.19 In

a digital society an individual has the right to protect herself by controlling the dissemination of

such personal information.20 All the fundamental rights enshrined under Part III of the

constitution are safeguards against the state, these are considered the utmost important

12 (2017) 10 SCC 1. 13 1954 SCR 1077. 14 AIR 1963 SC 1295. 15 (2017) 10 SCC 1. 16 Supra note 4. 17 Justice (Retd.) K.S. Puttuswamy v. Union of India, 10, SCC 1, 153, (SC: 2017). 18 Justice (Retd.) K.S. Puttuswamy v. Union of India, 10, SCC 1, 152, (SC: 2017). 19(2017) 10 SCC 1. 20 Justice (Retd.) K.S. Puttuswamy v. Union of India, 10, SCC 1, 305, (SC: 2017).

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parameters of a civilized society. Similarly, privacy concerns arise when the State seeks to

intrude into the body and the mind of the citizen and recently the state has continuously tried to

encroach individual privacy by the way of legislations like Aadhar Act and Personal Data

Protection Bill. It is noteworthy that there is provision for the liability for negligence by private

entities but no such provisions are available for the government. S. 43A of the Information

Technology Act of 2000 contains the provisions where there is liability for the private bodies

regarding damages and compensation.

IV. Brief Analysis of Constitutionality of Section 12(f) of the Bill

a. Violation of Right to Life

The preamble of the bill recognizes the right to privacy as a Fundamental Right21, which was laid

down in Justice K.S. Puttuswamy (Retd.) v. Union of India.22 The reading of preamble further

strengthens the protective nature of the bill. The right of the person, whom data is being

processed, must be protected according to the preamble. One aspect of privacy is considered the

right to control the dissemination of personal/sensitive personal information.

And that every individual should have a right to be able to control exercise over his/her own life

and image as portrayed in the world and to control commercial use of his/her identity.23 The

right to disseminate hence becomes a natural right not bestowed by the State. This is an inherent

right of human beings, regardless of their class, strata and other factors. This aspect of

informational privacy was also touched in Aadhar case24, where Nariman J., stated that;

‘Informational Privacy does not deal with a person’s physical being directly but it

affects mental health of an individual and that is why unauthorized dissemination

of personal information may lead to breach of right to privacy which establishes

that the bill is violative of Art. 21.’

Noteworthy, the European Court for Human Rights already stated that mere storing of personal

information may amount to violation of Article 8, and since Article 8 of ECHR is in pari materia

with the constitution the same must be applied to impugned legislation. In case of Federal Census

Act Case (Volksz hlungsurteil)25 where the court held that the combination of personalized

statistical data could lead to identification of an individual which will affect the right to

informational self-determination of concerned persons and hence the legislation was struck

down.

Apprehension of a democracy being converted into the totalitarian state may arise if S. 12(f) is

allowed to operate. The reason being that S. 12(f) is anathema to the democratic principles and

rule of law, which is the bedrock of the Indian Constitution. Sec. 12(f) is prima facie based on

compelling state interest rather than legitimate state interest. Noteworthy, while dealing with the

21 Preamble of Personal Data Protection Bill, 2019. 22 (2017) 10 SCC 1 23 Justice (Retd.) K.S. Puttuswamy v. Union of India, 10, SCC 1, 73, (SC: 2017). 24 (2017) 10 SCC 1. 25 (1983) 65 BVerfGE 1.

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issue of state interest, Chandrachud, J. has formulated the test of legitimate state interest, while,

Chelameswar and Sapre, JJ., were inclined in favour of the test of compelling state interest,

which serves larger public interest in lieu of legitimate state interest, as a permissible restriction

on a claim to digital privacy of an individual a more lenient test. However, due to the inclination

of the majority towards legitimate state interest, the minority has also virtually adopted the same

test. Since the test of legitimate state interest is applicable rather than the test of compelling state

interest, it becomes necessary for the state to justify all the processing of the personal data.

b. The Bill Does Not Fulfil The Test Of Proportionality

It was held in Aadhar case that “Right to privacy cannot be impinged without a just, fair and

reasonable law. It has to fulfil the test of proportionality i.e. (i) existence of a law (ii) must serve

a legitimate State aim and (iii) proportionate.”26

Section 12 (f) of the proposed bill27 states that;

“Notwithstanding anything contained in section 11, the personal data may be

processed if such processing is necessary,—

(f) to undertake any measure to ensure safety of, or provide assistance or services

to, any individual during any disaster or any breakdown of public order.”

Now it is doubtful whether the data of any individual exhausts to the data processor or others too.

The prima facie reading of the impugned provision clearly set forth the message that the data for

“any individual” may be processed without consent. Instant provision is clearly compromising

the right of one individual over the right of another individual without any concrete basis.

“Providing assistance or services” cannot be granted as a legitimate escape for stripping right of

one over another. Further, the presence of the term “any individual” includes non-citizens and

anti-societal elements, and compromising data of any person for service to the person who is not

equivalent will amount to inequality.

“The expression “arbitrary interference” can also extend to interference provided

for under the law. The Introduction of the concept of arbitrariness is intended to

guarantee that even interference provided for by law should be in accordance

with the provisions, aims, and objectives of the Covenant and should be, in any

event, reasonable in the particular circumstances.”28

The objectives laid down in the bill ensure the protection of privacy of an individual in

furtherance of a free and fair digital economy and remedies for unauthorised processing of data,

ironical to the impugned provision the preamble also commit to set a relation of trust between

data principle and data fiduciary. It can be safely stated that the bill is in contravention with the

very objectives that it set forth.

26 (2017) 10 SCC 1. 27 Section 12(f) of the Personal Data Protection Bill, 2019, available at

https://www.prsindia.org/sites/default/files/bill_files/Personal%20Data%20Protection%20Bill%2C%202019.pdf 28 Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, European

Treaty Series - No. 108, Article 8, (1981).

299

http://www.prsindia.org/sites/default/files/bill_files/Personal%20Data%20Protection%20Bill%2C%202019.pdf

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There is an immense importance of the requirements of clarity, accessibility, and precision when

the case is of communication surveillance. The reason for this is the destructive nature of

communication surveillance towards the essence of democracy as the European Court of Human

Rights recognised as early as 1978.29

The Court found that the “mere existence” of legislation that allowed a system to secretly

monitor communications gave rise to a “menace of surveillance” which amounted to a

compromise with the privacy of all those to whom legislations may have been applied. Same is

the case with impugned provision, it opens the risk of compromising with the data of individuals

without any adequate responsibility of the state agency. ECtHR issues some threshold guidelines

which deal with minimum safeguards of surveillance law to be compatible with Article 8 of

ECHR.

V. Conclusion

It is of utmost importance to have legislation for the governance of private data protection, step

in furtherance of this by the State deserves appreciation but the lacunas present in legislation

makes it a bad law in the eye of constitution. There are some thresholds which every legislation

must pass. Though main principles, as set generally, are duly fulfilled but the impugned

provision suffers disability to deserve a constitutional nod. A standard degree of privacy is

important for the well-being and growth of an individual. The restrictions imposed on the state to

pry into the lives of the citizen goes down to affect the essence of a democratic state. This Article

attempts to challenge the constitutionality of Sec.12(f) in brief. The bill shall be reviewed by a

panel of experts, each from the technical and legal sector. Some provisions other than Sec. 12(f)

need the attention of policymakers such as Sec. 35 of the bill allowing the exemption of several

agencies of the state as specified by the central government but exempting any government

agency from this bill will defeat its purpose.30 Any deviation from the principles of rule of law

and basic structure may lead to harmful consequence, these consequence may not seem great

concern to some class of people but consecutive violation of established democratic principle

may lead to great damage soon, hence it is essential to hold these establish principle as guiding

light to ensure welfare and development of a democratic society.

29 Klass and others v. Germany, no. 5029/71, paras. 42 and 49 (ECtHR: 1978). 30https://www.business-standard.com/article/economy-policy/govt-messed-up-control-mechanisms-b-n-srikrishna-

on-data-protection-bill-120013001855_1.html last accessed on 04/04/2020.

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