KASHMIR JOURNAL OF LEGAL STUDIES

Statement of ownership and other particulars

KASHMIR

JOURNAL OF

LEGAL STUDIES

Place of Publication : Srinagar

Publisher : Kashmir Law College

Address : Khawajapora, Nowshera

Srinagar – 190011

J&K India

Ownership : Kashmir Law College

Acknowledgement

The College acknowledges with great appreciation the financial support

by ICSSR for the publication of the previous volumes V & VI (2016-

2017) of Kashmir Journal of Legal Studies.

I, Altaf Ahmad Bazaz, Chairman of the College, do hereby declare that

the particulars given above are true to the best of my knowledge and

belief.

Cite this volume as VIII KJLS [2018]

ISSN: 2250-2084

Annual subscription

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Kashmir Journal of Legal Studies is a refereed Journal, Approved by UGC published annually. Contributions to the Journal are invited in the form of articles, notes and case comments which should reach the editor of the journal by ending June of the year. Contributors are required to follow the mode of citation and footnoting of the journal of the Indian Law Institute. The Paper(s) already published elsewhere will not be considered for publication in this Journal. Articles with more than two or more authors will not be entertained. The paper should not exceed 10,000 words and must also contain an abstract in not more than 150 words followed by key words. The manuscripts must be typed in double space on one side of the A-4 size paper and sent in compact disc (CD) or as an attachment with e-mail at [email protected]. The editors, publishers and printers do not own any responsibility for the views expressed by the contributors and for the errors, if any, in the information contained in the Journal and author

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Editorial The changing nuances of law warrant a continuous process of

mapping, documenting and dissemination in order to answer the

burgeoning challenges of technology in legal research. The Kashmir

Journal of Legal Studies has been contributing substantially in the field

of legal research, resulting in accreditation of the journal as UGC

approved listed journal which is a great achievement for a Private Law

college of the state. The journal is being indexed by Indian Citation

Index (ICI) as a sequel to its quality of content in the field of legal

education. It gives us immense pleasure to note that the ICI has

authorized the college to use their Logo in this Journal which is duly

acknowledged.

The present issue of the journal has six articles and four cases and

comments which are delineated as under:

Imran Ahad and Fareed Ahmad Rafique in their article “Ever-

greening of Patents of Drugs and Right to Health: A Conflicting Interest

“have highlighted the practice adopted by pharmaceutical companies to

surreptitiously extend the life of the product patent beyond the statutory

period to dupe the public in terms of denying access to medicine by

resorting to an unfair trade practice.

Mohd Rafiq Dar in his article “Right to Healthy Environment under

National and International Regime: An Appraisal” has to highlight the

development and current status of right to healthy environment in

International law and Indian law.

Syed Shahid Rashid in his article “Triple Talaq: A critical appraisal of

its Roots in Theological, Legal and Social Fabric and a way forward”

has explored triple talaq and its roots and scope in theological, legal and

social fabric.

Uzma Qadri in her article “Education as a Consumer Service: National

and International Perspective” has discussed the right to education at

international level in detail under various conventions, protocols and

agreements. The measures adopted in India have also been discussed.

Unanza Gulzar in her article “An Appraisal of Magnitude of

Surrogacy under Islamic Law” has analysed the concept of

surrogacy and its scope under the Islamic law which forms the

personal law of the second largest population of the country.

Shazia Ahad Bhat in her article “Applicability of AFSPA in

India: A Humanitarian Perspective “has analysed the provisions

of AFSPA in the light of humanitarian law so as to perceive the

true nature of the Act and its impact in humanitarian perspective,

when implemented practically.

Shabana Shabnam in her article “Rajbala v. State of Haryana, a

guiding light for Jammu and Kashmir” has attempted to find out

the educational qualification of elected representatives and

whether the elected Panchayat representatives support the view

that minimum educational qualification should be laid down in the

Jammu and Kashmir Panchayati Raj Act, 1989.

Dr. S Z Amani and Nisha Dhanraj Dewani in their write up

“Compulsory Licensing and Generic Drugs: Healing or Harming

Indian Economy” have made brief analysis of the interplay

between patents and generic medicines. This includes an overview

of the Indian market in respect of pharmaceutical industry and the

right of access to medicines as a demonstration of human rights.

Ryhana Farooq in her article “Role of CSR in Preservation of

Forests in the State of J&K: A Critical Appraisal” has attempted

to explore the newer dimensions of CSR and its link and scope in

the Forest Protection in J&K.

Farhat Deeba in her article “Right to Health in India: A Judicial

Exposition” has highlighted the various dimensions of right to

health in India, linking health rights with human rights through

the prism of Judicial exposition.

The present issue is the combined contribution of the editorial

board and the legal experts who have directly or indirectly helped

to bring out the issue in the best possible presentable form. The

efforts made by the team of editors has remained quite immense

and laudable which is duly acknowledged. The editor wants to put

on record the contribution of Omer Zargar for layout and the

design of the Journal.

Last but not the least, all credit goes to Mr. Altaf Ahmad Bazaz,

Chairman of the College for his unfailing commitment to academic

excellence and financial support to make the publication of this journal

possible.

Prof. A. S. Bhat.

Kashmir Journal of Legal Studies

Volume-8 (2018-19) CONTENTS

S. No. Page No.

Articles Editorial

1 Ever-greening of Patents of Drugs and Right to Health: A Conflicting Interest

Imran Ahad Fareed Ahmad Rafiqi

01-12

2 Right to Healthy Environment Under National and International Regime: An Appraisal

Mohd Rafiq Dar

13-34

3 Triple Talaq: A Critical Appraisal of Its Roots in Theological, Legal and Social Fabric and a way forward

Syed Shahid Rashid

35-52

4 Education as a Consumer Service: National and International Perspective

Uzma Qadri

53-70

5 An Appraisal of Magnitude of Surrogacy under Islamic Law

Unanza Gulzar

71-86

6 Applicability of AFSPA in India: A Humanitarian Perspective

Shazia Ahad Bhat

87-114

Notes & Comments

1 Rajbala v. State of Haryana, a guiding light for Jammu and Kashmir

Shabana Shabnam

115-136

2 Compulsory Licensing and Generic Drugs: Healing or Harming Indian Economy

S Z Amani

Nisha Dhanraj Dewani

137-150

3 Role of CSR in Preservation of Forests in the State of J & K: A critical Appraisal

Ryhana Farooq

151-160

4 Right to Health In India: A Judicial Exposition Farhat Deeba

161-178

Evergreening of Patents of Drugs and Right to Health: A Conflicting Interest

Imran Ahad* Fareed Ahmad Rafiqi**

Abstract

Evergreening of patents, the most common practice associated with the

pharmaceuticals industries, refers to the strategy adopted by these

industries to obtain benefits of patenting by camouflaging the

improvement in drugs as a new product, typically by obtaining patents

on improved versions of the existing products. “The ever greening

refers to attempts by owners of pharmaceutical product patents to

effectively extend the term of those patents on modified forms of the

same drug, new delivery systems for the drug, new uses of the drug, and

the like.” The ever greened patents can cover everything from aspects

of the manufacturing process to colour, or even a chemical produced by

the body when the drug is ingested and metabolized by the patent. Ever

greening of patents is not a formal concept of law; rather it is an idea

referring to the innumerable ways in which the pharmaceutical

companies uses the law and related regulatory processes to extend their

high rent earning intellectual property rights, otherwise known as

“intellectual monopoly privileges.” In this paper an attempt has been

made to highlight the nuances of this practice adopted by

pharmaceutical companies to surreptitiously extend the life of the

product patent beyond the statutory period to dupe the public in terms

of denying access to medicine by resorting to an unfair trade practice.

Keywords: Ever-greening, public health, generic drugs, life-saving

drugs, product patents, Novartis ruling

* PhD scholar, Department of Law, University of Kashmir, Hazratbal , Srinagar, email: [email protected]

** Associate Professor ,University of Law, University of Kashmir, email: [email protected]

KJLS VOL. VIII

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1. Introduction

In India, the first attempt to control and regulate the trade of

intellectual property was made in the middle of the nineteenth century,

courtesy to the British colonial regime favouring the foreign enterprises.1

In post-independence era, the Indian Patent Act 1970 was modeled on a

pattern which on the one hand, ensured provision of medicine to the

masses at affordable prices and on the other hand, provided

encouragement to research and development. It encouraged domestic

competition while protecting interests of the patent holders2. The product

patents were protected under the British regime to secure their trading

interest especially in production, manufacture, supply and distribution of

patented products which were imported for domestic use for lack of

indigenous pharmaceutical patented drugs.3 The concept of process

patent after independence remained in vogue in order to ensure the

availability of medicines at affordable prices to the public4.

After the ratification of TRIPS agreement under the auspices of

WTO, Indian Patent Act was made compliant with the said agreement,

though the changes so incorporated were undoubtedly not in the national

interest in general and public health in particular5. The concept of

product patent got a place under Indian law, the scope for compulsory

licensing had been limited, and the patent protection got increased to the

terms of 20 years. The patent protection has been provided even in the

1 The first British law related to Patents can be said to be the Statute of Monopolies 1624 following the Venetian Patent Statute 1474, But in India it was Patents Act 1856, based on British Patent Act 1852, that primarily aimed at protecting the trading interest of the their native people across the territories under their control. Available at : www.ipindia.nic.in

2 Martin G, Sorenson C. and Faunce T., Balancing intellectual monopoly privileges and the need for essential medicines, Globalization and Health, 2007, available on http://www.globalizationandhealth.com/ content/3/1/4, on 7/5/13 at 11:00 AM.

3 The Patents Act 1970 is modeled substantially on the U.K. Patents Act of

1949, which has been remodeled by U.K.Patents Act, 1977. 4 Janice M. Mueller & Donald S. Chi sum, Enabling Patent Law’s Inherent

Anticipation Doctrine, 45 Houston Law Review (2008), 1101. 5 Shrimant Singh, India: Evolution Of Indian Patents Act And Rules–

Journey From Trips Compliance To A Mature Patent Regime, accessed on 20 July 2018

EVERGREENING OF PATENTS OF DRUGS AND RIGHTS TO HEALTH

3

case where there was no domestic production of that product and the

patent protection on the import had also been provided6.

2. Doha Declaration and Right to Health

While Indian Patent Act was being amended by the government

under the pressure from WTO, appeals were coming from not only

within India but even from other countries including WHO to safeguard

public health. Therefore, in the year of 2001, the WTO members adopted

a special ministerial declaration at the WTO Ministerial Conference in

Doha to clarify ambiguities between the need for governments to apply

the principles of public health and the terms of the TRIPS Agreement.

Doha declaration on public health is a victory for the developing

countries like India who are demanding the WTO council to consider the

public health measures in the developing and the least developed

countries on TRIPS minimum standards for patents7. In light of the

issues and the increasing evidence that patent protection was negatively

affecting world health by erecting a barrier between sick people and the

medication they need, the WTO amended TRIPS under the Doha

Declaration to broaden the criteria to facilitate compulsory licensing of

patented pharmaceuticals for countries facing a public health crisis.

Furthermore, countries that lack domestic pharmaceutical production

abilities may import these medications from countries that produce the

medications for them for this purpose.8 The Declaration affirms that the

TRIPS Agreement does not and should not prevent members for taking

6 The concept of parallel importation for protecting the public health is recognized under the Patents Act 1970.

7 In 2005, WTO members reached agreement on an amendment to the TRIPS Agreement to make permanent the temporary waiver contained in the August 30 Decision, which itself fulfilled the requirement of para 6 of the Doha Declaration on the TRIPS Agreement and the Public Health of Nov.14, 2001. However, it has yet to become legaly binding for lack of 2/3 majority ratification. Available at : http://www.wto.org/english/imrd/ directdoc.asp? DDFDocument/t/WT/L/711.doc

8 Aileen M. Me Gill, Compulsory Licensing of patented pharmaceuticals: why a WTO administrative body should determine what constitutes a public health crises under the Doha Declaration, 10 Wake Forest Intellectual Property Law Journal 73 (2009); cited in http://www.scribd.com/doc/53318704/pharmaceutical-patent-in-issues-and-concerns; accessed on 7/5/13 at 12:15 PM.

KJLS VOL. VIII

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measures to protect public health and it can and should be interpreted

and implemented in a manner supportive of WTO member’s right to

protect public health and, in particular, to promote access to medicines

for all.9

Despite the fact that the patents law regime allows investors to

obtain patents upon improvements, the ever greening of patents by

pharmaceutical industry creates controversies. The specific reasons are

the traditionally resource-intensive nature of research and development

activities and the continuing public outrage over very high cost of drugs

and thus adversely affecting the right to health. The duration of patent

protection, which extends for maximum for a period of 20 years from

the date of filing of patent, is effectively extended by way of ever

greening. Critics assert it as an abusive practice by pharmaceutical

industries that conflict with the concept of limited monopoly under

patents law10.

3. Evergreening of Patents: Nature and Extent

The evergreening of patents of drugs by pharmaceutical

industries is not a new practice but has been resorted to quite often11.

India, under severe criticism from different quarters, was forced to

introduce amendments in Indian Patent Act, so as to allow the existing

domestic production of medicines to continue despite the Patent. The

Patents Amendments Act of 2005 has introduced another provision to

discourage the continuation of patents rights beyond the prescribed term

of patent protection by preventing the grant of evergreening.12 It was

9 Ibid 6. 10 http://www.shvoong. com/business –management /1918270-evergreening-

patent/#ixzz22sfzca3Oh, accessed on 7/5/13 at 11:15 AM. 11 Sushmita R, EverGreening: An Abuse of the Patent System,( Jan.16,

2015). Evergreening is referred to the practice whereby pharmaceutical firms extend the patent life of a drug by obtaining additional 20-year patents for minor reformulations or other iterations of the drug, without necessarily increasing the therapeutic efficacy.

12 Section 3(d) of the Indian Patent Act prevents the ever greening of patents. It provides that the mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance or the mere discovery of any new property or new use for a known substance or of the mere use of known process, machine or apparatus unless such known process results in a new product or employs


5

started far back in the year of 1983 by the US pharmaceutical companies

to retain the profits from the “blockbuster” high selling drugs for as long

as possible. When the original patent over the active component of such

high selling drug is about to expire, these companies cleverly claims a

number of complex and highly speculative patents. Than the patentee of

such evergreened patents over drugs, use to threaten the producers of

generic equivalent of such drug by seeking client order for preventing

their marketing approval. The result is the exorbitant prices of essential

and lifesaving ever-greened drugs13.

4. Evergreening of Patents: A Threat to Generic Drugs

The high cost of Evergreened drugs and its inaccessibility to the

mass is causing maximum sufferance to the inhabitants of the least

developed and developing countries, wherein the people are denied with

their basic right to health in the form of non-access to the essential

drugs. Right to health is an internationally recognized human rights

covered by several international human rights instruments, including the

International Covenant on Economic, social and Cultural Rights

(ICESCR).14 The Committee on Economic, Social and Cultural Rights in

its General Comment15 extensively set out obligation of States parties,

under which countries are bound to respect, protect and fulfill the right

to health. The access to adorable drugs is one of the significant attributes

of the right to health. Further on the competition posed by the

pharmaceuticals companies producing generic drugs16 is the key to

adorable drugs.

at least one new reactant Explanation: for the purpose of this clause, salts, esters, ethers, polymorphs, metabolites, pure form, particle size, isomers, mixtures of isomers, complexes, combinations and other derivatives of known substance shall be considered to be the same substance, unless they differ significantly in properties with regard to efficacy.

13 See Feroz Ali & Sudarsan Rajagopal, Rampant Evergreening In Indian Pharma Industry, April 30, 2018, available at www.livemint.com

14 Article 12 establishes the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.

15 General Comment 14, the right to the highest attainable standard of health, UN Doc. E/C. 12/2000/4, 11 August 2000.

16 As defined by the centre for drug evaluation and research, US. Food and Drug Administration, the generic drug meant for a drug product that is

KJLS VOL. VIII

6

The right to health-the internationally recognized human right, is

now conferred with the status of fundamental right under Constitution of

India. The right to health is now to be read as the part of Article 21 of

the Constitution17 and is directly enforceable through domestic clients in

the absence of contradictory domestic law.18 Despite the recognition of

right to health as legally enforceable right, the people in the developing

countries, including India, are dying of diseases like HIV/AIDS, Cancer,

Tuberculosis etc., because of non-access to affordable drugs. Many of

the drugs used to treat these diseases (particularly the anti-viral drugs

used in HIV/AIDS therapy) – are still under patent.19

A patent provides the owner of an invention with the legal

means to prevent others from selling it for a period of 20 years. In return,

the patent holder must disclose details of the invention. The exclusivity

provided by a patent allows pharmaceutical companies to recoup their

investment in developing a new medicine. Once the patent expires on a

drug, other manufacturers are free to step-in and manufacture so called

generic versions of the drug. Generics are usually far cheaper than in-

patent drugs since generic manufacturing is a competitive business and

the companies do not have to worry about recovering research and

development (R&D) costs.20

Generally the generic drugs are being produced upon the expiry of the

period of patent protection. There are also certain other circumstances

when the generic drugs can be produced without the patent infringement,

viz. – (a) when the generic company certifies the brand company’s

patents as either invalid or unenforceable (b) when the generic version is

for drugs which have never held patents, or (c) when the generic version

is produced in countries where the drug does not have current patent

protection.

comparable to brand/reference listed drug product in dosage from, strength, route of administration, quality and performance characteristics, and intended use. It also refers to a drug marketed under its chemical name without advertising.

17 Paschim Bang Khet Mazdoor Samiti vs. State of WB (1996) 4 SCC 37; Surjit Singh vs. State of Punjab (1996) 2 SCC 336.

18 Vishaka vs. State of Rajasthan (1997) 6SCC 241. 19 L. Menghaney, Patent Injustice: how india brought cheap HIV drugs to

Africa, the BMJ 25 Nov.2013 20 www.parliament.uk/post/home.htm; accessed on 4/5/2013 at 10:45 AM.


7

In India the TRIPS compliant patent law regime has

incorporated the concept product patent over drugs. It provides for the

patent protection in cases where there is no domestic production of that

product and even the patent protection on the import. Thus it is

threatening the producers of generic drugs. Though TRIPS agreement

contains the provisions of “compulsory licensing”21 & “parallel

importing”22 which allows the member countries to manufacture or buy

the generic drugs in exceptional situations. Yet, the above stated

safeguards in the form of “compulsory licensing” & “parallel importing”

has not been used successfully by a developing nation to access

inexpensive medicines. Among the likely reasons for this are: (a) the

fear of bilateral trade disputes; (b) the lack of legal resources to interpret

and implement the agreement; (c) the lack of the infrastructure needed to

dispense drugs; and (d) the implications of declaring a national

emergency.23

5. Novartis Case – A Vanguard to the Patients

The Novartis applied for a patent for ‘imatinib’ in USA in the year

of 1994 and it had started marketing a derivative of it, viz., ;imatinib

mesylate’ as an anti-cancer drug under the brand name of Glivec or

Gleevec. Novartis could not apply for a patent for imatinib mesylate in

India because during 1972 to 1995, she did not recognize product patent

protection in pharmaceuticals. When India introduced product patents,

Novartis could not apply for a patent for imatinib mesylate because

patents were given only for new substances and not for known

21 Compulsory Licensing allows the government to permit use of a patent without the consent of the owner in certain circumstances, viz.- where a company/person has already attempted to gain a voluntary licenses from the patent holder on reasonable commercial terms; or in the event of national emergencies or in other circumstances of extreme urgency; or for public non-commercial use. Compulsory licenses are being issued after the payment of adequate remuneration to the patent holder. In cases of compulsory licensing, a single license cannot be given exclusivity and the production is primarily for the supply to the domestic market.

22 Parallel importing refers to products marketed by the patent owner in one country and imported into another without the patent owner’s approval.

23 Supra note 19.

KJLS VOL. VIII

8

substances24. By 1995 information on the drug was in the public domain

and hence it was a known substance and hence not patentable in India.

Therefore, Novartis in the year 1998 had again applied for the patent of

the new form of imatinib mesylate, i.e. – beta crystalline form of

imatinib mesylate. As per the arrangement in India in compliance with

TRIPS agreement, the application of Novartis was kept in mail box. In

year 2005 onwards, when the examinations of patents application was

started, the application of Novartis was rejected by the patent office on

the ground that it did not satisfy the ‘efficacy’ criteria as laid down in

section 3(d) of the Indian Patents Act.25

Though, Novartis argued before the patent office that the

invented product, the beta crystalline form of Imatinib Mesylate, has

more beneficial flow properties, better thermodynamic stability and the

lower hygroscopicity than the alpha crystalline form of Imatinib

Mesylate. It further claimed that the aforesaid properties make the

invented product new and superior as it “stores better and is easier to

process” at that time the appellate authority under the act had yet to

become functional. The appellant, therefore, challenged the orders

passed by the Assistant controller in writ petitions filed directly before

the Madras High court. Apart from challenging the orders of the

Assistant controller, the appellant also filed writ petitions seeking a

declaration that section3 (d) of the Act is unconstitutional because it not

only violates Article 14 of the Constitution of India but is also not in

compliance with TRIPS. After the formation of the Intellectual Property

Appellate Board (IPAB), the writ petitions challenging the orders of the

Assistant Controller were transferred from the High Court to IPAB. The

appellant’s appeals against the orders passed by the Assistant Controller

were finally heard and dismissed by the IPAB in the year 2009.26

24 After the decision by the UK Supreme Court in Actavis UK v. Eli Lilly Company UKSC 2017, regarding the nuances of improvement in technical knowledge, the rights of the patentee having become wider, the decision by Indian Supreme Court in Novartis AG becomes quite questionable. Though our courts are not bound by the UK precedents but the MNCs may resort to this wider definition.

25 http://www.rediff.com/money/interview-novartis-ruling -is-not-an-anti-patentjudgement/ 20130410.htm, accessed on 7/5/18 at 1:00pm.

26 Novartis AG vs. Union of India; Civil Appeal Nos. 2706-2716 of 2013 (Arising out of SLP (C) Nos. 20539-20549 of 2009).


9

The IPAB held that the patentability of the sub product was hit by

section 3(d) of the Act. Referring to section 3(d) the IPAB observed:

“Since India is having a requirement of higher standard of inventive

step by introducing the amended section 3(d) of the Act, what is

patentable in other countries will not be patentable in India. As we

see, the object of the amended section 3(d) of the Act is nothing but

a requirement of higher standard of inventive step in the law

particularly for the drug pharmaceutical substances”.27

The IPAB also referred to the judgment of the Madras High court,

dismissing the appellant’s writ petitions challenging the constitutional

validity of section 3(d) where the High Client had observed:

“We have borne in mind the object which the amending Act wanted

to achieve namely, to prevent evergreening, to provide easy access to

the citizens of the country to life saving drugs and to discharge their

constitutional obligation of providing good health care to its

citizens.”28

Against the order of the IPAB the appellant came directly to the

Supreme Court under Article 136 of the Constitution. On 1 April 2013,

the Supreme Client rendered the judgment confirming that the beta

crystalline form of imatinib mesylate failed the test of section 3(d). The

Supreme Court interpreted the meaning of “efficacy” in section 3(d). It

said that the new form of a drug must demonstrate an improvement in its

therapeutic effect or curative property as compared to the old form in

order to secure a patent. Though, Novartis offered evidence that the beta

crystalline form differed regarding certain properties relating to

production and storage. The Court held that these properties may be

important from storage point of view, but would not be relevant to

showing “enhanced therapeutic efficacy”. The Court discussed at some

length the meaning of therapeutic efficacy in respect to pharmaceutical

products, and observed that there are different possible meanings. The

definition may be limited only to action resulting in a curative effect, or

it might be more broadly extended to cover improved safety or reduced

toxicity. The Court decided to leave open what is the appropriate

27 Ibid. 28 Ibid.

KJLS VOL. VIII

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definition of enhanced (therapeutic) efficacy – the narrower or broader

interpretation – because it did not need to reach that question in this

case. Novartis had provided no evidence that the beta crystalline form of

imatinib improved the therapeutic effect of the drug. There was nothing

to measure.29 Novartis had also showed that imatinib mesylate had a

30% increase in bioavailability30 compared with imatinib. However, the

Supreme Client decided to not consider this sufficient to meet the

“enhanced efficacy” requirement as laid down in the Indian Patent Act.31

Finally, the Supreme Client has said that it appeared that Novartis was

in fact marketing an older form of the drug and not the beta crystalline

version, and that it appeared that Novartis may have been trying to use a

patent in India to cover a drug that it was not actually selling. It

suggested that this showed Novartis “in rather poor light”.32

In this way, the Supreme Client of India, in Novartis case

judgment has adopted a standard for patenting of drugs, which is much

stricter than that followed in the USA & European Union countries.

While applying for patents for drugs in India, the claimant must have to

show that the new form of compound to be patented is different from the

old form and at the same time it must be resulting into improvement in

the treatment of patient.

Accessibility of life saving drugs

Access to lifesaving drugs is one of the biggest challenges faced by

the world community especially amongst the least developed countries

as per the UN Commission on Lifesaving Commodities for Women and

Children Report33. In recent years, the patentability of health-related

29 http://www.ip-watch.org/2013/04/04/the-judgement-in-novartis-v-vwhat-the-supreme-court-of-india-said/; accessed on 9/5/13 at 2:20 PM.

30 Bioavailability stands for the proportion of the drug absorbed in the blood stream.

31 http://www.medscape.com/viewarticle/775186_3, accessed on 9/5/13 at 2:30 PM.

32 Supra note 42. 33 UN Commission on Lifesaving Commodities for Women and Children

Report 2012 known as Every Women Every Child( EWEC) identifying 13 essential lifesaving drugs , the lack of which account for 6 million deaths annually in 50 poorest countries which could be averted by an estimated cost of mere 0.5 US$ per person. In order to avert such tragedies the UN


11

innovations has become under debate world-wide. Billions of dollars are

invested each year in pharmaceutical research, but the percentage of

people who can afford potentially life-saving drugs remains minuscule.

The consensus amongst the World Trade Organization (WTO) is that

public health precedes intellectual property rights during national

emergencies. However, the problem is not as simple as a mere question

of morality. The development of drugs is costly for pharmaceutical

companies, and without intellectual property law protection, the formula

for the drugs can be easily duplicated and the drugs can be synthesized

at a cheaper cost34.

In India, one of the largest producers of pharmaceuticals in the

world, the problem becomes increasingly complex in recent years. Until

December 2005, India only allowed patents on methods to produce

drugs, but not on the actual chemical composition of the drugs

themselves. However after 2005, India changed its policy to allow drug

patents in order to encourage more foreign companies to enter India and

synthesize their drugs. The rationale for the new measure is to enable

foreign companies to take advantage of the cheaper production cost in

order to lower the prices of drugs for the rest of the world.35

In USA a fund has been created to provide for incentives to drug

manufacturers so as to keep their products patent free so as to make life

more important than minting money. In the same way, affordability,

accessibility, availability of life saving drugs becomes important, be it

India, Japan or United Kingdom. The number of people world-wide who

have access to medicine is staggeringly low, and allowing patents on

drugs, although increase the number of advancements in life-saving

Commission’s Global Strategy for Women’s and Children’s Health has provided 10 standard Guidelines to ensure access to lifesaving drugs. For details see : https://unfpa.org/sites/default/files/pub-pdf/Final%20UN%20Commission%20Report_14sept2012.pdf

34 Harvey E. Bale Jr, “The conflict between parallel trade and product access and innovation: the case of pharmaceuticals”, Journal of International Economic Law I, 1998, p.637

35 Xiaolu (Erin) Wei, Drugs and Intellectual Property Rights ,

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12

technologies, will decrease the number of people who has access to

them. International efforts should focus on allocating monetary

motivation to provide people to access drugs.36

In India the National IPR Policy 2016 seems to augur well for a

balanced growth of the pharmaceutical industry on the one hand, and

effective enforcement of intellectual property rights, on the other hand.

This approach shall increase the accessibility of lifesaving drugs but

ensure the due consideration to intellectual property holders.37

6. Conclusion

The Novartis ruling by Supreme Client of India is a breakthrough,

which has laid down the yardstick against which the medicines will be

measured before the grant of patents. This is also the first drug patent

related case after the Patents Amendment Act, 2005 meant for honoring

product patents. In case of patenting of drugs, the concern should be that

a monopoly could not price the drug beyond the reach of patients. The

Novartis judgment comes on the heels of other judgments in the country

that ruled in favor of public health. The said judgment is affirming to the

fact that India has adopted a standard of drug patenting which is stricter

than that followed by the United States of America or the European

Union. Now, the consumers in India will have to pay for expensive

patented products only when those products represent a genuine advance

over older versions. The Novartis ruling will also benefit the generic

companies in India, which are fully capable of manufacturing generic

Imatinib Mesylate at par to global standards. Apart from this, the

companies in countries where Glivec is not patented could also

manufacture and export to India. Thus, the said ruling leads to the

recognition of the right of patients to access affordable medicines over

profitability of big pharmaceutical companies through patents. The New

IPR Policy is going to make a positive change.

36 See for US position: http://www.aidsnews.org/2005/06/innovation-fund.html

37 See for details: http://www.epw.in/journal/2016/38/commentary/new-ipr-policy-2016.html

Right to Healthy EnvironmentUnder National and International Regime: An Appraisal

Mohd Rafiq Dar*

Abstract

Environment is a sine qua non for the existence of life on this

planet. Amongst the basic rights the environment is a basis for all other

rights. Since the beginning of human life on the earth man has been

fulfilling his needs from the environment for sustaining his life. With the

passage of time the need of the man changed into greed, and he started

exploiting the environment to the extent of devastation forgetting

altogether to nurture this valuable resource. The nation states are

blindly following the rat-race and mad-race of development at the cost

of lives of hundreds of thousands of people which is a clear violation of

human rights enshrined in international covenants and the

constitution.In the United Nations Conference on the Human

Environment held in Stockholm the international community declared

that ‘Man has the fundamental right to freedom, equality and adequate

conditions of life, in an environment of a quality that permits a life of

dignity and well-being, and he bears a solemn responsibility to protect

and improve the environment for present and future generations.’1The

human rights are cherished as basic and essential rights, and have

gained much importance in international legal arena in the present era.

The right to healthy environment is more important since it forms the

basis for the existence of humankind itself. The present paper attempts to

highlight the development and current status of right to healthy

environment in International law and Indian law.

Keywords:Environment, Human Rights, International Law,

United Nations, Equality.

Introduction

* Assistant Prof.(c), School of Law, University of Kashmir, Srinagar. E-mail: [email protected].

1. Principle 1, Stockholm Declaration on the Human Environment, Report of the United Nations Conference on the Human Environment (New York, 1973), UN Doc. A/CONF.48/14/Rev.1.

KJLS VOL. VIII

14

Life on the earth has always been possible because of the existence

of the vital elements of which environment is composed of. Environment

is the wellspring of life on earth like water, air, soil, etc., and determines

the presence, development and improvement of humanity and all its

activities. The concept of ecological protection and preservation is not

new. It has been intrinsic to many ancient civilizations. Man is part of

this universe, the elements of which are complementary to one another

in an integrated whole. Indeed, man is a distinct part of the universe and

it has a special position among its other parts. The relation between man

and the universe, as defined and clarified in the Glorious Quran and the

Prophetic teachingsis as follows:

“…And do not desire corruption in the land. Indeed, God does not

like corruptors. ” 2

“…And do not commit abuse on the earth, spreading corruption.”3

The Prophet(SAW) declared:

“If any Muslim plants a tree or sows a field, and a human, bird or

animal eats from it, it shall be reckoned as charity from him.”4“A

relationship of care and nurture for man’s good works are not limited to

the benefit of the human species, but rather extend to the benefit of all

created beings; and “there is a reward in doing good to every living

thing.”5

Ancient Indian texts highlight that it is the dharma of each

individual in the society to protect nature and the term ‘nature’ includes

land, water, trees and animals which are of great importance to us. . In

the ‘Atharva Veda’, the ancient Hindu Scepters stated “What of thee I

dig out let that quickly grow over”.6According to the Webster

Dictionary, it is defined as the “Aggregate of all the external condition

and influences affecting the life and development of an organism.”The

word “environment” relates to surroundings. It includes virtually

everything. It can be can defined as anything which may be treated as

covering the physical surroundings that are common to all of us,

2. Qur’an 28:77 3. Qur’an, 2:60 4. Saheeh Al-Bukhari, Saheeh Muslim. 5. Ibid. 6. MC Mehta, Growth Of Environmental Jurisprudence In India, p.71, 1999.

RIGHT TO HEALTHY ENVIRONMENT

15

including air, space, land, water, plants and wildlife.7The Environment

(Protection) Act, 1986Section 2(a) environment “includes water, air and

land and the inter- relationship which exists among and between water,

air and land, and human beings, other living creatures, plants, micro-

organism and property.”8The exact meaning of the right to environment

is not ascertainable. ‘‘Different terminologies such as decent, viable,

healthy, sustainable environment are commonly used when referring the

right to environment’’.9 For example, K. Solo defines the right to

environment to broadly mean: The right, whether of individuals or a

group, to a decent environment; and more Specifically, such rights as the

right to be free from excessive pollution of the land water or air, or

pollution, from noise, the right to enjoy an un spoilt nature, and the right

to enjoy biological diversity.10

Thus, it can be concluded that

environment means the surroundings in which we live and is essential

for our life.

International Scenario

Environmental protection is a practice of protecting the natural

environment on individual, organisation controlled or governmental

levels, for the benefit of both the environment and humans. Due to the

pressures of over consumption, population and technology, the

biophysical environment is being degraded, sometimes permanently.

This has been recognized, and governments have begun placing

restraints on activities that cause environmental degradation. Since the

1960s, activity of environmental movements has created awareness of

the various environmental issues. There is no agreement on the extent of

the environmental impact of human activity and even scientific

dishonesty occurs, so protection measures are occasionally debated.

A healthy environment is an essential aspect of the right to life, not

only for human beings but also for other animals on the planet.

7. Dr.Jai Jai Ram Upadhyay, ENVIRONMENTAL LAW, p. 2, Allahabad: Central Law Agency, (2005).

8. Act No. 29 of 1986. (23 May, 1986). 9. A. Boyle, The role of international human rights law in the protection of

the environment’ (1996) p, 50. 10. K Solo, ‘keeping a clean environment-the case of Botswana (1999) 6

SAJELP ) p,237

KJLS VOL. VIII

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Violation, therefore, of the right to healthy environment is potentially a

violation of the basic right to life.11

Nothing is more basic to life than

having sustainable access to food, clean air and water, and other

resources that ecosystems provide. Surely a clean and healthy

environment upon which life itself depends should be recognized as a

fundamental human right.12

The right to a healthy environment was recognized through an

extensive interpretation of the applicability domain of certain rights,

expressly provided for in the provisions of the European Convention of

Human Rights. Although there are no provisions in the Convention or its

additional Protocols, that expressly refer to the right to a healthy and

ecologically balanced environment, the European Court of Human

Rights has recognized in its case-law and that of the European

Commission, that certain types of deteriorations of the environment with

serious consequences for the individuals or even the failure of the public

authorities to provide information regarding the ecological risks that

individuals are exposed to can constitute breaches of certain rights

protected through the provisions of the Convention, such as right to life,

right to private and family life or right to property. The European

Charter of Fundamental Rights provides, concerning the environmental

protection, that a high level of environmental protection and of

environment quality improvement must be integrated in the EU politics

and be guaranteed according to the principle of sustainable

development.13

After World War II, when the idea gained wide acceptance in the

late 1960s, legal protection of air, water, soil, and ecosystems, such as

wetlands and forests, quickly followed, particularly in USA, Europe,

Australia and New Zealand. Since then,environmental protection has

11. Right to Clean Environment: A basic HumanRightby Adhiti Singh. http://www.legalservicesindia.com/article/article/right-to-clean-environment-a-basic-human-right-1509-1.html.

12. The Human Right to a Clean and Healthy EnvironmentBy David Bollier and Burns H. Westonhttp://www.csrwire.com/blog/posts/1157-the-human-right-to-a-clean-and-healthy-environment.retrieved on 13/01/2018.

13. Preserving The Right To A Healthy Environment: European Jurisprudence; Lucretia Dogaru. Available at: www.sciencedirect.com. Retrieved on 15/01/ 2018.


17

become an important element of the domestic legal systems of all

developed countries and many developing ones. Since the 1980s

environmental law has also become an important and evolving

component of international law.14

Although ecological thinkers have

been sounding the alarm regarding industrial society’s unsustainable

relationship with the natural world since (at least) the nineteenth century,

the modern environmental movement did not emerge until the early

1960s. With the exponential growth in the use of synthetic chemicals in

the wake of the Second World War, industrialized society faced a crisis

of pervasive environmental contamination previously unknown in

human history.15

As Rachel Carson wrote:

For the first time in the history of the world, every human being

[was] now subjected to contact with dangerous chemicals, from the

moment of conception until death. In the less than two decades of their

use the synthetic pesticides [had] been so thoroughly distributed

throughout the animate and inanimate world that they occur[red]

virtually everywhere…[T]hese chemicals [were] stored in the bodies of

the vast majority of human beings…They occur[red] in the mother’s

milk, and probably in the tissues of the unborn child.16

The 1962 publication of Carson’s pivotal book Silent Spring,

highlighting the hazards ofchemical pesticides and fertilizers, “delivered

a galvanic jolt to public consciousness.”SilentSpring was highly

influential in both North America and Europe, and is credited with

catalyzingthe birth of both grassroots environmentalism and modern

environmental law.17

In international law, a distinction is often made between hard and

soft law. Hard international law generally refers to agreements or

14. ENVIRONMENTAL LAWS AND THEIR ENFORCEMENT – Vol. I - History of Environmental Law - A. Dan Tarlock http://www.eolss.net/sample-chapters/c04/e4-21-01.pdf. retrieved on 15/01/2018.

15. Are We There Yet? The Right to Environment in International and European Law-Lynda Collins

16. Rachel Carson, Silent Spring (New York: First Mariner Books, 2002) at 15-16 [Carson, Silent Spring].

17. See H. Patricia Hynes, The Recurring Silent Spring (New York: Pergamon Press, 1989) at 9.

KJLS VOL. VIII

18

principles that are directly enforceable by a national or international

body. Soft international law refers to agreements or principles that are

meant to influence individual nations to respect certain norms or

incorporate them into national law.18

If a treaty or convention does not

specify an international forumthat has subject matter jurisdiction, often

the only place to bring a suit with respect to that treaty is in the member

state’s domestic court system. This presents at least two hurdles. If the

member state being sued does not have domestic implementing

legislation in place to hear the dispute, there will be no forum available.

Even in the event that the domestic legislation provides for such suits,

since the judge who decide the case are residents of the country against

which it is brought, potential conflicts of interests arise.19

In simple understanding, international environmental law comprises

those substantive, procedural and institutional rules of international law

which have as their primary objective the protection of the environment.

Environment is generally defined as ‘the objects or the region

surrounding anything’. The definition of environment encompasses the

whole gamut of the natural world and that of human civilization. On this

definition the environment is broader than, but includes, ‘nature’, which

is concerned only with features of the world itself. Generally, the term

environment encompasses anything from the whole biosphere to the

habitat of the smallest creature or organism.

In the last few decades, there has been an increasing concern and

awareness about the need to protect the environment, both nationally and

internationally. Part of the way of putting this concern into action is the

law, being a means to structure and condition behavior. While

international environmental law continues to develop, the existing

treaties, declarations, and state practices are beginning to provide a

framework. This framework is largely created by states, but it is clear

that international organizations, non-governmental organizations and

individuals are playing an active role in this area than in almost any

other area of international law. Today, we are witnessing an accelerated

18. Environmental Law And Policy in India. Shyam Deewan, Armin Rozencranz, II edn. Oxford University Press. 2001. p, 579.

19. ibid.


19

development of international law and international environmental law in

particular.20

There is increasing evidence that the development of

international environmental law is moving in the direction of sustainable

development. Moreover, the international conventions are an

increasingly important source of international environmental law. Today

there are numerous international conventions which exist in the field of

environmental law dealing with specific aspects of environment like

biodiversity, marine species, climate change, energy, land use, etc.21

1972: The United Nations Stockholm Conference on the

Human Environment22

In 1972 the Stockholm Declaration was adopted by the

Environment Conference and this document contains certain

environment principles, amongst which the principle of the right of

nations to a healthy life, in harmony with nature can be found. The

recognition of the need for environmental protection first appeared at

local and national levels where the effects of environmental deterioration

were directly felt. During the years immediately preceding Stockholm

Conference in 1972, environmental protection had become a significant

public and political issue in nearly all developed states of the world,

notably Canada, Sweden, Japan, Great Britain and the United States of

America.

The year 1972 was historic, because for the first time countries

across the world came together to identify and address environmental

problems. The United Nations Conference on the Human Environment,

held in Stockholm in 1972, was the first international intergovernmental

conference to focus on environmental problems.The final declaration of

the Stockholm Conference was an environmental manifesto that was a

forceful statement of the finite nature of Earth’s resources and the

necessity for humanity to safeguard them. The Stockholm Conference

20. Handbook on International Environmental Agreements: An Indian Perspective. Available at : www.awsassets.wwfindia.org. retrieved on 07.04.2018.

21. ibid. 22. Declaration of the United Nations on the Human Environment, 16 June

1972, UN Doc. A/CONF.48/14/ Rev.1, 11 I.L.M. 1416 [Stockholm Declaration].

KJLS VOL. VIII

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also led to the creation of the United Nations Environment Programme

(UNEP) in December 1972 to coordinate global efforts to promote

sustainability and safeguard the natural environment.

The roots of the Stockholm Conference lie in a 1968 proposal from

Sweden that the UN hold an international conference to examine

environmental problems and identify those that required international

cooperation to solve. The 1972 conference was attended by delegations

from 114 governments. (It was boycotted by Soviet-bloc countries

because of the exclusion of the German Democratic Republic [East

Germany], which did not hold a UN seat at the time.) Documents created

during the conference influenced international environmental law; one

notable example was the final declaration, which elucidated 26

principles concerning the environment. The conference also produced

the “Framework for Environmental Action,” an action plan containing

109 specific recommendations related to human settlements, natural-

resource management, pollution, educational and social aspects of the

environment, development, and international organizations.

The final declaration was a statement of human rights as well as an

acknowledgment of the need for environmental protection. The first

principle began “Man has the fundamental right to freedom, equality and

adequate conditions of life, in an environment of a quality that permits a

life of dignity and well-being.” The need to preserve the environment

was not placed in opposition to economic development. In fact, their

interdependence was explicitly stated in principles 8 and 9.23

. By the late

1960s, environmental concerns had broadened. States concluded an

African Convention on the Conservation of Nature and Natural

Resources in 1968 and the Ramsar Convention on Wetlands in 1971.24

Still, there were few international environmental agreements concluded

23. ‘ United Nations Conference on the Human Environment.’ Philippe Boudes. https://www.britannica.com/topic/United-Nations-Conference-on-the-Human-Environment.

24. African Convention on the Conservation of Nature and Natural Resources, September 15, 1968, United Nations Treaty Series, Vol. 1001, p. 3 (No. 14689); Ramsar Convention on Wetlands of International Importance Especially as Waterfowl Habitat, February 2, 1971 (amended December 3, 1982), United Nations Treaty Series, Vol. 996, p. 245 (No. 14583).


21

before 1972.The notion of healthy environment entails not only an

unpolluted environment but also a balanced one from an ecological point

of view, as established in the Project of Declaration of Principles on

Human Rights and Environment, document that recognizes expressly the

cultural and spiritual importance of the natural environment. The special

connection between the human and nature is acknowledged also in the

World Charter on Nature, stating that civilization has its roots in nature

and the coexistence in harmony with nature offers to mankind the best

opportunities for creativity development. From this perspective, thus, the

preservation of nature becomes a condition for individual welfare and

requires a dimension of human rights.25

Principle 1 of the Stockholm Declaration established a foundation

for linking human rights, health,and environmental protection, declaring

that

Man has the fundamental right to freedom, equality and adequate

conditions of life,in an environment of a quality that permits a life of

dignity and well-being.

In resolution 45/94 the UN General Assembly recalled the language

of Stockholm, stating that allindividuals are entitled to live in an

environment adequate for their health and well-being. Theresolution

called for enhanced efforts towards ensuring a better and healthier

environment. The Stockholm Declaration, understands environmental

protection as pre-condition to the enjoyment of internationally-

guaranteed human rights, especiallythe rights to life and health.

Environmental protection is thus an essential instrument in the effortto

secure the effective universal enjoyment of human rights. Klaus Toepfer,

Executive Director ofthe United Nations Environment Programme,

reflected this approach in his statement to the 57thSession of the

Commission on Human Rights in 2001:

Human rights cannot be secured in a degraded or polluted

environment. Thefundamental right to life is threatened by soil

degradation and deforestation and byexposures to toxic chemicals,

hazardous wastes and contaminated drinking water. Environmental

25. M. Déjeant – Pons, M. Pallemaerts, Human rights and the Environment, published by Council of Europe, 2001, p. 20].

KJLS VOL. VIII

22

conditions clearly help to determine the extent to which people

enjoytheir basic rights to life, health, adequate food and housing, and

traditional livelihoodand culture. It is time to recognize that those who

pollute or destroy the naturalenvironment are not just committing a

crime against nature, but are violating humanrights as well.

The General Assembly similarly has called the preservation of

nature “a prerequisite for the normal life of man.”26

Rio- Declaration on Environment and Development: 1992

In 1991, the United Nations Conference on Environment and

development lead to the adoption of the Rio Declaration that encloses 27

principles on sustainable development and the need of a healthy, quality

environment.27

Principle 1 of the 1992 Rio declaration states that human

beings are “entitled to a healthy and productive life in harmony with

nature.” Compared with Principle 1 of the Stockholm Declaration, the

reference in Rio to a vague entitlement to live “in harmony with nature”

tends to water down the human rights dimension of environmental

protection.

“Nonetheless, the Rio Declaration recognized the critical role that

the exercise of human rights

plays in sustainable development by public participation, access to

information and access to

judicial remedies, well-recognized procedural rights in

environmental matters.”28

Thus, these

procedural rights, contained in all human rights instruments, are

adopted in environmental texts

in order to have better environmental decision-making and

enforcement. Otherwise, a substantial

and explicit human right to environment cannot be found in Rio

declaration.29

26. GA Res. 35/48 of 30 Oct. 1980. 27. A. Aust, Handbook of International Law, Cambridge University Press,

2005, p. 330. 28. Declaration of the UN Conference on Environment and Development (the

Rio Declaration) Rio de Janeiro, 3-14 June 1992 at Principle 10

29. Haile Andargie Wondalem, The Right To Environment Under African Charter On Human And Peoples’ Right


23

Regional Human Right Instruments

Regional human right instruments are better in recognizing human

right to environment. To begin with, the Inter American Human Right

Convention has recognized the right to a healthy environment as an

independent human right. A more detailed formulation of the right was

included in the Additional Protocol to the American Human Rights

Convention on Economic and Social Rights, adopted in San Salvador, El

Salvador, on November 17 1988.30

The protocol is straightforward in its

formulation of the right to environment. It does explicitly recognize an

individual right to environment, as it stipulates that "[e]very one

shall have the right to live in a

healthy environment and to have access to basic public services”.31

Here it is vivid fact that, the

protocol went on beyond mere recognizing the link between

environmental protections and

human right as it grants independent human right to environment.

European Convention for the Protection of Human Rights and

Fundamental Freedoms.32

The ECHR was the first Convention adopted by the Council of

Europe (CoE) in 1950 and is integrallylinked with the founding

principles of the organisation. One of the conditions for Member States

to enter the CoE is to sign and ratify the ECHR and its Protocols. Once

the Member State has incorporated the ECHR into its domestic legal

system, one can raise a Convention issue before local courts. Over time

the ECHR has evolved and besides the original Convention there are

now a number of additional Protocols in force which either add new

rights33

or improve the Convention machinery34

.The right to a healthy

International Journal of International Law : ISSN :2394-2622 : Volume 2 Issue 1 p. 211.

30. Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social, and Cultural Rights, O.A.S.T.S. 69, reprinted in 28 I.L.M. 156 (1989).

31. Id at article 11. 32. European Convention for the Protection of Human Rights and

Fundamental Freedoms, Nov. 4, 1950, Europe T.S. No. 5 [European Convention].

33. Protocols No. 1, 4, 6, 7, 12 and 13. 34. Protocols No. 11 and 14.

KJLS VOL. VIII

24

environment is protected by article 2 (right to life) and article 8 (right to

respect for private and family life) ECHR.

The European Court of Human Rights developed some case law35

to article 8. In Guerra and Others v Italy 36

the Court held “…severe

environmental pollution may affect individuals’ well-being and prevent

them from enjoying their homes in such a way as to affect their private

and family life adversely.” The uniqueness of the Convention system is

that once domestic legal remedies have been exhausted, an individual

may lodge a complaint to the European Court of Human Rights for an

alleged violation of the ECHR by a State party. The court may find the

State in violation of the Convention and hand down a judgement which

requests the State to remedy the breach.

Through its decision in Lopez, Ostra v. Spain37

, the ECHR has

opened the path for protection of human rights against environmental

pollution. This decision represents the first indirect recognitionof human

right to healthy safe environment, by determining the violation of article

8 in the context of pollution.38

The decision in this case proved

jurisprudential flexibility as well as legal desire of seeing environmental

violations be considered as the violation of human rights, intensifying

thus the legal protection to the pollution victims and offering them,

nonetheless, the possibility of bringing the claim before the ECHR by

invoking Art. 8, in respect to every pollution source.

African Charter on Human and Peoples’ Right

The African charter on Human and Peoples’ right can be placed at

the fore front in recognizing the right to environment in binding norms.

The Charter was adopted by the Head of state and Government of the

Organization of African Unity (OAU) on 27 June 1981 and came in to

force on 21 October 1986. “This is the first regional system to recognize

the right to a general satisfactory environment.”39

African Charter on

35. López Ostra v Spain (no. 16798/90, 9.12.1994) &Guerra and Others v Italy (no. 14967/89, 19.2.1998).

36. (no. 14967/8,19.2.1998) 37. GA Res. 35/48 of 30 Oct. 1980. 38. A. Kiss. D. Shelton, Manual of European Law, Cambridge University

Press, New York, 1993, p. 42. 39. Morne`Van der linde, Considering the interpretation and implementation

of article 24 of the African Charter on


25

human and peoples’ right connotes the right to environment as peoples’

right. The relevant provision of the charter reads as follows: ‘‘All

peoples shall have the right to a general satisfactory environment

favorable to their development.’’40

Article 24 of the Charter confers a

right to a pollution free environment that supports sustainable

development, as well as procedural right of access to information,

participate in the process of decision making, and to seek redress in the

event of interference with the enjoyment of the right to environment.

The 1998 Aarhus Convention, which recognizes the linkage

between human right and environment. “The preamble of Aarhus

convention envisioned that adequate protection of the environment is

essential for human well being and the enjoyment of basic human rights,

including the right to life itself.”41

This agreement represents probably the most important step yet

taken towards humanright to environment: it establishes rights—to

information, to participation in decision making, and to access to justice

in environmental matters—which it expressly affirms are aimed at

securing the right to a healthy environment.42

The Aarhus convention further establishes a conceptual link

between substantive and procedural

environmental rights by stating that:

citizens must have the right access to environmental information, be

entitled toparticipate in decision-making and have access to justice in

environmental matters” in order “to be able to assert” their right to live

in an environment adequate to their health and well-being, as well as to

Human and Peoples’ Rights in light of the SERAC communication (2003) , p, 167available at

http://repository.up.ac.za/bitstream/handle/2263/1266/van%20der%2.pdf , 40. African charter on human and peoples’ right, adopted 27 June 1981, OAU

Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force 21 October 1986) at Article 24.

41. Convention on access to information, public participation in decision-making and access to justice in environmental matters done at Aarhus, Denmark, on 25 June (1998),par.1

42. Timmy Hayward, constitutional environmental rights (oxford university press 2005), p 58.

KJLS VOL. VIII

26

“observe” their concomitant duty “to protect and improvethe

environment for the benefit of present and future generations.43

Finally, the link between human rights and environment was given

a further impetus with the

Brundtland Report of 1987, which presented the basic goals of

environmentalism as an extension

of the existing human rights discourse, and proposed the

formulation of the right to environment.

Pursuant to the proposal “All human beings have the fundamental

right to an environment

adequate for their health and well-being.”

Indian scenario

Right from the ancient period to the medieval period in

subcontinent the impact of human activities on environment were

minimal, it can be concluded without any doubt that this period was a

golden period regarding the conditions of the environment. People were

living in harmony with the nature and considering the deterioration of

environment as sin rather than a crime. With the advent of the Britishers

in India, the modern industrial system was set up without giving any

thought to the impact on environment. The Britishers were more

concerned with the profit making, consequently plundering of resources

by them took the heavy toll on environment. There are about two

hundred laws dealing with environmental protection both before and

after independence in India. However, the pre-independence laws have

not dealt with environmental protection exclusively. For example, the

Indian Penal Code (IPC), 1860, had a chapter (chapter XIV) which dealt

with offences affecting public health, safety and convenience, which

covered aspects like water, air and noise pollution, whereas the post-

independence laws deal exclusively with environmental protection. The

43. Haile Andargie Wondalem, THE RIGHT TO ENVIRONMENT UNDER AFRICAN CHARTER ON HUMAN AND PEOPLES’ RIGHT; International Journal of International Law : ISSN :2394-2622 : Volume 2 Issue 1.p.211. (Accessed on 12.03.2018.)


27

Indian Penal Code has a chapter on offences affecting Public Health,

Safety, Convenience (Chapter XIV). 44

.

Since the 1970s, a number of environment legislations have

been put in place. The MoEF and the pollution control boards ("CPCB",

ie, Central Pollution Control Board and "SPCBs", ie, State Pollution

Control Boards) together form the regulatory and administrative core of

the sector.

Some of the important legislations for environment protection are

as follows:

• The National Green Tribunal Act, 2010

• The Air (Prevention and Control of Pollution) Act, 1981

• The Water (Prevention and Control of Pollution) Act, 1974

• The Environment Protection Act, 1986

• The Hazardous Waste Management Regulations, etc.

The National Green Tribunal Act, 2010 45

(NGT Act) has been

enacted with the objectives to provide for establishment of a National

44. `Sec. 268 provides that “a person is guilty of a public nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger, or annoyance to persons who may have occasion to use any public right.” The section further explains that a common nuisance is not excusable on the ground that it causes some convenience or advantage. Other concerned provisions are: a “negligent act likely to spread infection or disease dangerous to life” (Sec. 269 IPC.), a “malignant act likely to spread infection or disease dangerous to life” (Sec. 270 IPC.), “making atmosphere noxious to health” (Sec. 278 IPC.). But the essential requirement of the provision to punish a man is the guilty intention of the accused, i.e. either the act of the accused should be negligent, malignant or voluntary, which vitiates the atmosphere. In case of public nuisance, the Penal Code provides for fines up to Rs. 200/- by way of punishment (Sec. 290 IPC.) and for making the atmosphere noxious to health Rs. 500/- only (Sec.78 IPC.). The punishments are too meagre to meet the objectives.

45. (No. 19 of 2010).The Act received the assent of the President of India on

June 2, 2010, and was enforced by the Central Government vide Notification no. S.O. 2569(E) dated October 18, 2010, with effect from October 18, 2010. The Act envisages establishment of NGT in order to deal with all environmental laws relating to air and water pollution, the Environment Protection Act, the Forest Conservation Act and the Biodiversity Act as have been set out in Schedule I of the NGT Act.

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Green Tribunal (NGT) for the effective and expeditious disposal of cases

relating to environment protection and conservation of forests and other

natural resources including enforcement of any legal right relating to

environment and giving relief and compensation for damages to persons

and property and for matters connected therewith or incidental thereto.46

The enactment of National Green Tribunal Act, 2010 by the Parliament

has put an end to debate over retention of ordinary civil courts for

environmental adjudication in India. The Act seeks to penetrate green

justice notions deep into the environmental laws in India.47

The Air

(Prevention and Control of Pollution) Act, 1981 is also a comprehensive

legislation with more than fifty sections. It makes provisions, interalia,

for Central and State Boards, power to declare pollution control areas,

restrictions on certain industrial units, authority of the Boards to limit

emission of air pollutants, power of entry, inspection, taking samples

and analysis, penalties, offences by companies and Government and

cognizance of offences etc.48

The Water (Prevention and Control of

46. Consequent to enforcement of the National Green Tribunal Act, 2010, the National Environment Tribunal Act, 1995 and the National Environment Appellate Authority Act, 1997 stand repealed. The National Environment Appellate Authority established under s 3(1) of the National Environment Appellate Authority Act, 1997stands dissolved, in view of the establishment of the National Green Tribunal under the National Green Tribunal Act, 2010 vide Notification no. S.O. 2570(E) dated October 18, 2010.

47. Mohammad Ayub Dar; The New Horizons of Green Justice Under The National Green Tribunal Act, 2010: Does It Lock Environment Class Actions to Civil Courts; KULR XVII 2010 p.69.

48. 3. Central Board for the Prevention and Control of Air Pollution. The Central Board for the Prevention and Control of Water Pollution constituted under section 3 of the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974), shall, without prejudice to the exercise and performance of its powers and functions under this Act, exercise the powers and perform the functions of the Central Board for the Prevention and Control of Air Pollution under this Act.

4. State Boards for the Prevention and Control of Water Pollution to be, State Boards for the Prevention and Control of Air Pollution. In any State in which the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974), is in force and the State Government has constituted for that State a State Board for the Prevention and Control of Water Pollution under section 4 of that Act, such State Board shall be deemed to be the State Board for the Prevention and Control of air Pollution constituted under section 5 of this Act and accordingly that State Board for the Prevention and Control of Water Pollution shall, without prejudice to the exercise and


29

Pollution) Act, 1974,49

provides for the establishment of pollution

control boards at Centre and States to act as watchdogs for prevention

and control of pollution. The Forest(Conservation) Act, 198050

aimed to

check deforestation, diversion of forest land for non-forestry purposes,

and to promote social forestry. The sustainability of forest ecosystem is

an essential component of the environment conservation. The

degradation of forests has deleterious impact on water resources,

agriculture, biodiversity, environment, climate and human health.51

The

Environment (Protection) Act, 1986 is a landmark legislation which

provides for single focus in the country for protection of environment

and aims at plugging the loopholes in existing legislation. It provides

mainly for pollution control, with stringent penalties for violations.

Constitutional Provisions and Right to Healthy

Environment

The Indian jurisprudence and constitutional framework on

right to a healthy environment as part of fundamental rights are well

developed. Articles 21, 48A and 51A(g) of the Indian Constitution take

measures to protect the right to a healthy environment. According to

Article 48A:The State shall endeavor to protect and improve and to

safeguard the forests and wild life of the country. Article 51A(g) states

that: (g) to protect and improve the natural environment including

forests, lakes, rivers and wild life, and to have compassion for living

performance of its powers and functions under that Act, exercise the powers and perform the functions of the State Board for the Prevention and Control of Air Pollution under this Act.

49. sections 4 and 5 of the Act deal with the establishment and constitution of CPCB and SPCB respectively, sections 16 and 17 of the Act deal with the powers and functions of CPCB and SPCB respectively.

50. section 2 of the Act puts Restriction on the dereservation of forests or use of forest land for non-forest purpose. Section 3A. imposes penalty for contravention of the provisions of the Act.( Whoever contravenes or abets the contravention of any of the provisions of Section 2, shall be punishable with simple imprisonment for a period which may extend to fifteen days.) section 4B imposes penalty on Government officers and authorities.

51. Zaffar Mahfooz Nomani; Juridical Convergence of Forest Wildlife and Biodiversity and Its Impact on Wetland Habitat in India; KULR XVIII 201, p.114.

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creatures. Article 21 provides:No one shall be deprived of his life or

personal liberty except according to the procedure established by law.

The Indian apex court has played an active role in supporting the

achievement of the above constitutional mandate given. Ever since the

decision of Maneka Gandhi v Union of India52

the Indian jurisdiction

continued to move forward in its public law. To attain the objectives of

Articles 48A and 51A(g) a dynamic attitude on interpretation of the

constitution was adopted by the Indian courts. The proactive moves of

the courts have enabled the Indian jurisprudence to extend the ambit of

their fundamental right. For instance, the liberal interpretation on right to

life under Article 21 by the Supreme Court in Maneka Ghandi allows the

Indian apex court judges to widen the scope of fundamental rights,and

this includes right to a healthy environment.

Judicial Approach to Right to Healthy Environment

It is not only the Apex court but also the High Courts who have

shown dynamism in evolving theright to environment in India. A brief

survey of their approaches may be worthwhile to highlight the emerging

shape of the right. The RatlamMunicipality case starts the deliberation of

humanright in the polluted environment where the healthof the residents

of particular locality of the Ratlamcity was held hostage because of its

bankruptcy.53

Justice Krishna lyer ruled out the ugly and shameless plea

and held that the human right had to be respected regardless of

budgetary provision.54

In M. C. Mehta vs. Union of India55

(the Oleum

Gas Leak case), the Supreme Court established a new concept of

managerial liability – ‘absolute and non-delegable’ – for disasters arising

from the storage of or use of hazardous materials from their factories.

The enterprise must ensure that no harm results to anyone irrespective of

the fact that it was negligent or not.

The right to life guaranteed by article 21 of the Constitution

includes the right to a wholesome environment.56

It includes also the

52 . 1978 AIR 597, 1978 SCR (2) 621. 53. C.M.Jariwala; Emerging Right To Environment: An Indian Perspectiv;.

Journal of the Indian Law Institute, 1995 - JSTOR 54. Ratlam Municipality v. Vardichand, AIR 1980 SC 1622. 1028. 55. 1987 SCR (I) 819. 56. Charan Lal Sahu v. UOI AIR 1991 SC.


31

right of enjoyment of pollution-free water and air for full enjoyment of

life.’ the right to a wholesome environment is a part of the fundamental

right to life.57

The municipalities and a large number of other concerned

governmental agencies could no longer rest content with unimplemented

measures for the abatement and prevention of pollution. They may be

compelled to take positive measures to improve the environment.58

Life, public health and ecology have priority over unemployment and

loss of revenue.59

The Supreme Court ordered the Central government to

show the steps they have taken to achieve this goal through national

policy and to restore the quality of environment. Right to life

guaranteed in a civilized society would take within its sweep the right to

livelihood,60

the right to food, the right to clothing, the right to decent

environment and a reasonable accommodation to live in.61

In Vellore

Citizens Welfare Forum v. Union of India,62

the Supreme Court held that

industries are vital for the country’s development, but having regard to

pollution caused by them, principle of ‘Sustainable Development’ has to

be adopted as the balancing concept.

‘Precautionary Principle’ and ‘Polluter Pays Principle’ has been

accepted as a part of the law of the country. In Bichhri pollution case63

following the decision in the Oleum Gas leak case and based on the

polluter pays principle, the polluting industries were directed to

compensate for the harm caused by them to the villagers in the affected

areas, specially to the soil and to the underground water. while

enunciating the doctrine of ‘Public Trust’64

in the Supreme Court held

that resources such as air, sea, waters and the forests have such a great

importance to the people as a whole that by leasing ecologically fragile

57. Subash Kumar v State of Bihar AIR (1991)1 SCC 598. 58. M.C. Mehta v. Union of India (1991) AIR SC 813 (Vehicular Pollution

Case); (1992) Supp. (2) SCC 85; (1992) Supp. (2) SCC 86; (1992) 3 SCC 25.

59. ibid. 60. Olga Tellis v. Bombay Municipal Corpn. AIR 1986 SC 180. 61. Shantistar Builders v. Narayan Totame 1990(1) SCC 630. 62. AIR 1996 SC 2715. 63. Indian Council of Enviro-Legal Action v. Union of India, 1996 3 SCC 212. 64. M. C. Mehta v. Kamal Nath (1997) 1 SCC 388,

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32

land to the Motel management, the State Government had committed a

serious breach of public trust.

The changing trajectory of environmental rights in India, from a

historical perspective, active judicial intervention by NGOs, community

groups, and others, have also set a series of important precedence’s that

go beyond what the bare laws provide. There are many initiatives in

Public Interest Litigation (PIL). Some of these include the cases against

the construction of the Tehri Dam 65

and Narmada Dams 66

against

deforestation67

, against mining68

in the Aravallis, on implementation of

the Wild Life (Protection) Act 197269

on implementation of Coastal

Regulation Zone measures70

on protection of the coastal area against

destructive practices on the right of citizens to inspect official records71

against forest logging and other environmental aspects of Andaman and

NicobarIslands.72

For instance, the Godavarman73

and the WWF v .

Union of India74

cases have led to the orders that no forest, National

Park or Sanctuary can be dereserved without the approval of the

Supreme Court, no non-forest activity is permitted in any National Park

or Sanctuary even if prior approval under the Forest (Conservation) Act,

1980 had been obtained, New authorities, committees and agencies have

been set up such as the Central Empowered Committee (CEC) and the

Compensatory Afforestation Management and Planning Agency. In Re

Noise Pollution (V) 75

the cries of a rape victim for help went unheeded

65. Tehri Bandh Virodhi Sangharsh Samiti v. State of Uttar Pradesh, 1992 SUP (1) SCC 44.

66. Narmada Bachao Andolan v. Union of India AIR 1999 SC 3345. 67. T. N Godavarman Thirumulpad v. Union of India, 2000 SC 1636. A case

that has since then spawned dozens orders pertaining to forests in India. 68. Tarun Bharat Sangh, Alwar v. Union of India1992 SC 514, 516).See also:

Rural Litigation and Entitlement Kendra, Dehradun v. State of Uttar Pradesh, 1985 SC 652; Samatha v. State of Andhra Pradesh, 1997, a judgment with important consequences for acquisition or use of adivasi lands elsewhere too);

69. WWF v. Union of India, (1998) 9 SCC 625. 70. Indian Council for Enviro-Legal Action v. Union of India, 1996(3) 579. 71. Prof.Sergio Carvalho v. The State of Goa, 1989 (1) GLT 276. 72. Goa Foundation v. North Goa Planning and Development

Authority.1995(1) GLT 181); 73.N.Godavarman Thirumulkpad v. U.O.I. & Ors. (1997) 2 SCC 267. 74. (1998) 9 SCC 625. 75. Noise Pollution v. In Re (2005) 5 SCC 733/Para 9).


33

in the blaring noise of loudspeaker in the neighborhood. The victim

committed suicide. Public interest litigation was filed. The court said

that article 21 of the constitution guarantees life and personal liberty to

all persons… it guarantees a right of persons to life with human dignity.

Therein are included, all the aspects of life which go to make a person’s

life meaning full, complete and worth living. The human life has its

charm and there is no reason why the life should not be enjoyed along

with all permissible pleasures.

Any one who wishes to live in peace, comfort and quiet within

his house has a right to prevent the noise as pollutant reaching him. No

one can claim a right to create noise even in his own premises which

would travel beyond his precincts and cause nuisance to neighbours or

others. Any noise which has the effect of materially interfering with the

ordinary comforts of life judged by the standard of a reasonable man is

nuisance. How and when a nuisance created by noise becomes

actionable has to be answered by reference to the degree and the

surrounding circumstances, the place and the time.76

In Intellectuals

Forum, Tirupathi v. State of AP77

the need for balancing water and land

resources for urban developmental needs was considered and it was

observed that the responsibility of the State to protect the environment is

now a well accepted notion in all countries. In this case the Court has

reiterated the importance of the Doctrine of Public Trust in maintaining

sustainable development which has been declared as inalienable human

right by UN General Assembly. The Apex court highlighted the

importance and responsibility of elected members of Municipal

authorities and Panchayats.78

Forests in India are an important part of the

environment. They constitute a national asset and intergenerational

equity is also part of the Article 21 of the Constitution and cautioned that

if deforestation takes place rampantly, then intergenerational equity

would stand violated.79

Conclusion and Suggestions

76. ibid. 77. (2006) 3 SCC 549. 78. M.C. Mehta v. UOI (2006)3 SCC 399. 79. Glanrock Estate Pvt. Ltd. v. State of Tamil Nadu (2010) 10 SCC 96.

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Environmental pollution is a problem not of a region, nation,

community of the states but of the world community. The Chernobyl to

Bhopal Mass Disaster has left many irrepairable and uncompensated

losses for the present and future generations as well. Since right to a

healthy environment is important to the healthy living of a person,it is

necessary that the right must be interpreted in the widest amplitude.The

interpretations of Article 21 by the Supreme Court have over the years

become the bedrock of environmental jurisprudence, and have served the

cause of protection of India’s environment (and to a lesser extent, of

livelihoods based on the natural environment). In addition to this, there

are a large number of laws relating to environment, enacted over the last

few decades. The Constitution does not explicitly provide for the

citizen’s right to a clean and safe environment, a number of amendments

to the Constitution, for ensuring environment protection and nature

conservation is sine qua non. A separate right to healthy environment

should be carved out from the article 21 itself to prevent any more harm

to the already deteriorated environment and the environment protection

should be included as one of the obligatory component in corporate

social responsibility.

Triple Talaq: A critical appraisal of its Roots in Theological, Legal and Social Fabric and a way

forward

Syed Shahid Rashid*

Abstract

There is a general perception regarding Islamic law of divorce that

it is discriminatory so far as woman is concerned and has given

unlimited powers to Muslim husband to repudiate marriage ties as and

when he deems fit and thus the laws are considered to be patriarchal in

mode. The concept of Triple Talaq dissolving the marriage instantly has

added to this perception. On the contrary, there should be every

possibility for marriage stability to subsist and at the same time it should

provide for dissolution of a marriage where spouses legitimately feel

that they cannot live together for whatever reasons. In this context this

paper is a humble attempt to explore triple talaq and its roots and scope

in theological, legal and social fabric.

Keywords: Triple Talaq Bill, Imam Abu Hanifa, Ibn

Tayimah, Supreme Court, Uniform Civil Code.

Introduction

In a famous judgment of the Supreme Court of India, the then Chief

Justice of India, Chandrachud J. observed:1

“Undoubtedly, the Muslim husband enjoys the privilege of being

able to discard his wife, whenever he chooses to do so, for reason good,

bad or indifferent. Indeed for no reason at all.”

However, an in-depth study and analysis of the law of Divorce in

Islam reflects the picture contrary to the observation quoted above.

Natural justice and civilized sense demands that system of divorce

should not be such as to make marriage itself into an oppressive bond.

Nor should it make divorce so easy that one can get out of the marriage

bond with ease. Traditionally divorce laws in different religious

* LLM from University of Kashmir. Presently working at Kashmir Law College Nowshera, Srinagar.

E-mail:[email protected] 1 Muhammad Ahmad Khan v Shah Bano Begum, AIR 1985 SC 974

KJLS VOL. VIII

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traditions disallowed divorce altogether e.g. classical Hindu law and

Christian Law. A modern divorce law is supposed to vest the initiative in

both the parties to decide whether the marriage should be sustained and

whether it would be better to dissolve. Furthermore, even if divorce

process has been initiated, still Islam allows for reconciliation between

the spouses. No doubt there have been procedural differences among the

various schools of thought in Islam, yet inherently Islam has not made

the divorce laws patriarchal in mode. Contrary to popular belief, Islam

also allows women the right to divorce. A woman can repudiate here

marriage under a form of divorce knows as Khula.2 Moreover, Islam

also allows the dissolution of marriage by Court also, in traditional way

through Qazi. This dissolution of marriage by Court/Qazi is called

Faskh i.e. judicial annulment of marriage on the application of wife. The

Quranic basis of the law of faskh is given in the fourth chapter dealing

with wives.3 Dissolution of Muslim Marriage Act, 1939 enacted in India

is an example of faskh. This law is applicable to all Muslims in India

who may otherwise adhere to the Hanafi, Shafii, Ithna Ashari or Ismaili

law. The Act is in force throughout India except in the State of Jammu

and Kashmir, where a parallel enactment by the name of Jammu and

Kashmir State Dissolution of Muslim Marriages Act, 1942 is in force.

The act lays down various grounds on which a Muslim woman can

obtain dissolution of her marriage. This legislation is considered as one

of the progressive laws so far as women’s right to divorce is concerned.4

The misuse or the misinterpretation of divorce laws never means

permissibility by Islam and should not be attributed to the prescribed

mode. It is true, that the unilateral use of power of divorce by Muslim

husband which is granted and vested in him by Islam when used in

arbitrary manner and in instant mode(instant triple talk i.e three talaks

in one go) create lot of problems and injustice to women. There are

2 The Quran: Surah Al-Baqarah: 229. 3 The Quran: Surah Al-Nisa: 34-35 4 Asaf A.A. Fyzee, Outlines of Muhammadan Law, 132 (5th edition, Oxford

University Press, New Delhi, 2008)

TRIPLE TALAQ: A CRITICAL APPRAISAL OF ITS ROOTS

37

diverse views on the validity of triple talak among the Muslim Schools

of jurisprudence and scholars. Many Muslim states have carried out

reforms in their personal laws in response to the juristic debate on

whether three repudiations of “talaq” in one session amount to “one”

repudiation. Various schools of thought in Islam have, historically,

differed considerably on this issue and this has been one of the hottest

topics of debate between a majority of the Sunni jurists who favor the

three-is three position, facing a strong opposition from a small but very

vocal minority of those Sunni jurists who favor the three-is-one position

and from Shia School. According to a majority of Sunni jurists,

pronouncing the word “talaq” three times in succession, equates with

three “talaqs.” On the contrary, according to Ibn Taimiyah, Ibn al-

Qiyam, and the Shi‘a Imamiyah, three pronouncements of the word

talaq in one session equals only one talaq. Most Arab, as well as many

Muslim states such as Egypt, Syria, Jordan, Iraq, Sudan, Morocco,

Kuwait, Yemen, Afghanistan, Libya, Kuwait, Qatar, Bahrain, and the

United Arab Emirates, have, while formulating their own laws, followed

Ibn Taimiyah’s and Ibn al-Qiyam’s positions on this issue.5

The reforms brought by Islam in the matter of divorce are well

directed but are differently viewed by different schools of Islamic

jurisprudence. There arises, therefore, a great controversy regarding the

effectiveness of triple pronouncement of divorce by a husband at one

and the same time. One school is of the view that no leniency is to be

given in the matter of law lest the people may take an undue advantage

on that account and thus, the repetition of a divorce thrice on a single

occasion would be tantamount to a final irrevocable divorce. This view

is with some procedural differences, taken by four classical schools of

Sunni jurisprudence, namely, Hanafis, Shafis, Maliksis and Hanbalis.

The other set of jurists is of the opinion that Allah wants the people to be

5 Dr. Muhammad Munir:, Reforms in triple talaq in the personal laws of Muslim States and the Pakistani Legal system: Continuity verses change. International Review of Law2013:2 available at http://works.bepress.com/muhammad_munir/16

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dealt with leniently so that they are not put to hardships and obduracies,

and also to minimize the changes of separation. Thus they hold that the

triple repetition of divorce should amount to a single divorce only and

not to three separate divorces. This view is shared by Ithna Ashris, Ahl-

e-Hadith and Fatimids. The Shias basically recognize only ahsan and

hasan procedure. Three pronouncements of divorce made in a single

Tuhr (state of purity) either in one sentence, e.g. “I divorce thee thrice”

or in three sentences, e.g. I divorce thee, I divorce thee, I diovrce, thee”

is termed as Talaq-ul-Biddat or Talaq-ul-Bian which means final

irrevocable divorce. It is also called the Mugalazah divorce which means

very hard or absolute divorce. It becomes effective the moment it is

pronounced and so deprives the divorcing husband of all changes of

recantation and reconciliation.

Triple Divorce is a very hard divorce depriving the divorcing

husband of all opportunities to reconsider his action of divorcing

husband of all opportunities to reconsider his action of divorcing his

wife. According to Imam Tahawi:6 “During the time of the Holy Prophet

and Hazrat Abu Bakr the three divorces on a single occasion were

adjudged as a single one. This practice continued till Hazrat Umar on

disciplinary grounds declared that the three divorces on a single occasion

might become effective as irrevocable.

Theological

Quran on Divorce and Views of Different Commentators.

The Quran has extensively discussed the laws relating to Divorce.

Some of the important verses in this regard are as under:

“Divorce may be pronounced twice: then keep them in good

fellowship or let them go with kindness. And it is not lawful for you to

take any part of what you have given them, unless both fear that they

cannot keep within the limits of Allah. Then if you fear that they cannot

keep within the limits of Allah there is no blame on them for what she

6 Imam Tahawi was a great traditionalist contemporary of imam Bukhari and predecessor of Ibn Taymiah.


39

gives up to become free thereby. These are the limits of Allah, so exceed

them not; and whoever exceeds the limits of Allah, these are the

wrongdoers.”7

Here it is made clear that divorce can be given twice, not any

number of times, unlike Pre Islamic Arabs who used to divorce their

wives and take them back any of times repeatedly. This divorce it

should be noted is a revocable type of divorce. In the waiting period

after pronouncing divorce reconciliation can be effected. Commenting

on this verse Maulana Maududi says: this verse removed the social

injustice which was prevalent in Arabs.

“So if he divorces her (third time), she shall not be lawful to him

afterwards until she marries another husband. If he divorces her, there

is no blame on them both if they return to each other (by marriage), if

they can keep within the limits of Allah. And these are the limits of Allah

which He makes clear for a people who know.”8

The Quran therefore clearly lays down that divorce could be

pronounced only twice and that a third pronouncement would result in

irrevocable divorce after which marriage with the woman would not be

possible unless she married someone else and happened to be divorced

by him. Only then could she marry her former husband again. This was

done to prevent the abuse of divorce.

“And when you divorce women and they reach their prescribed

time, then retain them in kindness or set them free with kindness and

retain them not for injury so that you exceed limits. And whoever does,

this, he indeed wrongs, his own soul. And take not Allah’s message for

mockery, and remember Allah’s favour to you, and that which He has

revealed to you of the Book and the Wisdom, admonishing you thereby.

And keep your duty to Allah and know that Allah is the knower of all

things.”9

7 The Qur’an, Surah Al-Baqarah: 229 8 The Qura’n, Surah Al-Baqarah:230 9 The Qur’an, Surah Al-Baqrah:231

KJLS VOL. VIII

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Divorcing a woman thrice at one sitting is considered as the last and

final divorce by many Muslims. However there is controversy whether

three divorces could be pronounced in one sitting or such

pronouncements could occur on three different occasions. The Holy

Quran no where mentions that the repetition of three divorces should

amount to a final irrevocable divorce. The overwhelming majority of the

Hanafi protagonists of Triple Divorce rely on the following Quranic

verse of Surah-e- Talak in support of their argument that the Triple

Divorce is effective:

“Perhaps Allah may after this bring about a situation (of

reconciliation.)”

They argue that if three divorces on a single occasion be counted as

a single divorce, then there is no meaning in the above words of the

Quran, for the changes of revocation will still be the open. The full text

of the verse is as follows:

“O, Prophet when you (and the believers) divorce women, divorces

them for their prescribed waiting periods, and count the waiting periods

accurately, and fear Allah, your Lord. And do not turn them out their

houses (during the waiting period) not should they themselves leave

them, except in case they commit an open indecency. These are bounds

prescribed by Allah and whosever transgresses Allah’s bounds will

wrong his own self. You do not know: Allah may after this bring about a

situation (of reconciliation.)”10

Commenting on this verse, Syed Abu’l Al’a Maulana Maududi

writes that this ayat refutes the viewpoint of those who hold the view

that divorce does not take place at all if it is pronounced during

menstruation and also the views of those who think that a triple divorce

amounts to a single divorce. He argues that if it is supposed that an

irregular divorce does not take place or a triple divorce amounts to a

single revocable divorce only , what then is the need of saying:

“whoever transgresses the bounds set by Allah (i.e the method taught by

10 The Qur’an, Surah Talak: 1


41

the Sunnah) would wrong his own self and you don’t not know Allah

may after this bring about a situation of reconciliation” this means, says

Maulana that if is supposed that triple talaq does not amount to breakup

of marriage, then there is no need of reconciliation, because Marriage

has not broken between them, and by this supposed argument the verse

that “you don’t not know Allah may after this bring about a situation of

reconciliation” becomes needless to mention.

According to Maualna Abu A’la Maududi, this verse does not

amend or repeal the any of the law prescribed in verses of Al- Baqarah

228-230 but simply has been revealed to make sure to use the divorce

powers very wisely and reasonably and not in haste.11

This shows that

in the opinion of Maududi pronouncing three divorces in one go has

valid effect and irrevocable but at the same time he opines that Muslim

husbands should not resort to triple talak and if they did so, then they

will feel sorry for that as it will take effect. This means that Maulana

Maududi agrees with Imam Abu Hanfia on this point, the Imam also

considers it biddah but effective. This is called Talak-i-Muglazzah

which takes effect but is considered as sin. To pronounce three divorces

at the same time is the way of juhala (ignorant people) and is considered

as the grave sin in the eyes of Shariah. Prophet Muhammad SAW has

condemned it. And it is reported from Hazrat Umar, that whosoever did

pronounce talaq three times instantly, Umar used to whip him.

Notwithstanding this, for the four Sunni Imams, it will be effective if

pronounced and will be talak mughazzlah.12

Imam Razi has written about this verse in the following words:13

“It is possible that the husband who divorces his wife may regret

over his action and there may emerge in his heart a dire to return to his

11 Maualan Sayed Abu A’la Maududi: Tafheem-ul-Qruan.(Urdu-Talkhees by Sadrudin Islahi), p:874 . See also Tafeheemul Quran (Urdu) by Mualan Maududi Vol. 5th p: 566

12 Tafeheemul Quran (Urdu) by Mualana Maududi Vol. 1st p: 175 (edition April 2011, MMIP Delhi).

13 M.J. Aslam, The Justification and Rationale of Muslim Divorce Law, 104. (2008 edition, K L J Publications Bangalore)

KJLS VOL. VIII

42

wife during her iddat. Further this verse also proves that it is proper to

pronounce divorce separately one after another. And Abu Isaq says that

if a person pronounces all the three divorces at a time then there can be

no meaning in these words of Allah”

Allama Ibn-e-Kathir comments on the above verse in the

following manner:14

“…None can know the intention of Allah…’ perhaps God may

create something new to happen’ also means the revocation...” it is

submitted by the opponents of triple talak that these words mean

revocation. And revocation is possible only when Talaq is revocable. If

it is irrevocable like Triple Divorce, there is no meaning, in these words

of God.

The supporters of triple divorce rely on some traditions where the

Holy Prophet enforced the triple pronouncements of divorce. Hence,

they focus their attention only on one side of the picture while they

ignore the other side which is more important. They rather stress on the

words of Holy Prophet without taking into cognizance the indignations

the Holy Prophet showed on the people who pronounced Triple divorce.

It is thus reported that a man had pronounced three divorces against his

wife and when the Holy Prophet was informed of this, he stood up in

anger and exclaimed: “the man is making plaything of the words of God

even while I (the Holy Prophet) is in your midst”! this means validating

triple Divorce is making angry the Holy Prophet. There is another

Tradition reported by Rakana Ibn Abdul Azia that he divorced his wife

thrice and informed the Holy Prophet about it and said: “I call God to

witness that I intended only one divorce” So the Holy Prophet returned

his wife to him. This tradition shows that if a man pronounced one

divorce against his wife and then repeats it for the second or even the

third time simply to emphasize the first divorce, only one revocable

(Ghair Mughazalah) divorce shall be affected. The supporters of Triple

Divorce held this tradition as a weak one as its chain of narrators (sanad)

14 Ibid, at107.


43

is unknown. According to Ibn Hajar Asqalani, this tradition conflicts

with that opinion of Ibn Abbas which treated three divorces on a single

occasion as final divorce. However, this should not be contemplated that

this tradition had not reached Ibn Abbas at the time of his giving above

opinion. Still Ibn Abbas afterwards give opinion against his earlier

opinion but on preferable grounds.

The Views of Four Imams

While the four great Imams of the Sunni school have set their seals

of approval on it, i.e. the three pronounced talaq at one and the same

time amounts to three talaqs. Even then they have called it a talaq-ul-

biddah (innovative form of divorce) not permissible,15

yet they felt

divorce once pronounced thrice in one sitting, would be effective.

However the four Imams differ in the procedure adopted for the

pronouncement of talaq.

According to Imam Abu Hanfia, three pronouncements shall

amount to three separate talaqs and shall result in a Mughallazah or final

talaq irrespective of the intention on the part of the husband.16

Therefore there is no room for reconciliation in such situations.

According to Imam Malik,17

if the husband while pronouncing

talaq uses the word “and” and says, “I divorce you and divorce you and

divorce you” the pronouncements shall amount to three talaqs or to a

Mughllazah talaq.

According to Imam Hanbal,18

“ if the husband does not use the

word “and” while repeating divorces as when he says, you are divorced,

divorced, divorced or I divorced you divorce you divorce and the

second and third pronouncements are made simply to emphasize first

pronouncement then only one divorce shall be effected in case marriage

has not been consummated. In case of consummation explanation will

15 According to Maulana Umar Ahmad Uthmani, Fiqh Al Quran. Vol II,P-204

16 K.N. Ahmad: Muslim Law of Divorce (1978) p.66 17 ibid, at pp.90-91 18 Ibid, pp. 91-92

KJLS VOL. VIII

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not be accepted and three divorces shall be effected. If the husband does

not use the pronouncement to emphasize the first, then three divorces

shall be affected.

According to Imam Shafi intention is more important than

conjunctive words like “and”. If a marriage is consummated and the

husband repeats three pronouncements of divorce without intending

three divorces but simply emphasizing first pronouncement, then only

one divorce shall be effected, whether using or without using a

conjunctive word “and”. If he pronounces the three pronouncements

intending or without any definite intention, three divorces shall be

effected. If the marriage has not yet been consummated then only one

divorce shall be effected under such circumstances.19

For him triple talak

is permissible and is the husband’s right.20

Other Conflicting Views

The opinion among sunni jurists is divided regarding the issue. One

group is of the opinion that no leniency is to be shows in the application

of the laws so that people should not take any undue advantage on that

account. The other group is of the opinion that Allah wants that people

should be dealt with some leniency so that they may not be put to

trouble. Iman ibn Taymiyyah, a prominent jurist of the fourteenth

century, maintains that such a divorce (triple Talak) will have no legal

validity and shows that this was the position of Imam Ahmad Ibn

Hanbal.21

Maualan Abdul Hai, an eminent Hanafi Jurist of Lucknow, has

stated:22

“If a husband have given three divorces at a time to his wife only

one revocable divorce will take effect. This view is traceable to some of

the companions of the Holy Prophet and this view has been expressed by

19 ibid, pp .92 20 ibid, at 147. 21 Supra 20, at 148. 22 Supra 13, at 113


45

Daud Zihar and his followers. Imam Malik too has expressed this view.

Some of the followers of Imam Ahmad have also expressed this view.

Imam Tayimmah too has supported this view in his books and his

follower (Ibn-e-Qayim) has also supported it in his book, namely Zaad-

al-Maad...”

Maulana Abdul Hai has also expressed the following legal

verdict:23

“When a husband has, in a state, of anger, pronounced three

divorces against his wife… according to the creed of Abu Hanifa, it will

be treated as three divorces and unless the woman marries another

husband and is divorced by him, marriage with the former husband will

not be permissible. However in times of urgency when it is feared that

great hardships and evils will ensue the same, it is permissible to follow

the ruling of some other Sunni Imam….” According to Maulana Ashraf

Ali Thanwi, “if a husband intends only one Talaq and has said it thrice

only to assert to himself then only one Talaq will be effective”. But

Darul Uloom Deoband, (a Hanafi Islamic seminary in India) has

validated a recent instance of triple talaq uttered in a drunken state by a

Muslim husband.24

It has ruled that talaq (divorce) given in a state of

drunkenness is valid. A fatwa to this effect was issued by Darul Ifta

(Fatwa Department) of the Islamic seminary on March 13, 2012. Under

the Shi‘a law, a husband cannot make his talaq to his wife irrevocable.

Moreover, the Shi‘a law requires the presence of two witnesses and the

exchange of specific words (sega) for talaq which is not so in the case of

Sunnis. The presence of witness is needed at the time of marriage in

Sunnis, which is not required in case of Shias. As discussed above,

under the Shi‘a law, which incidentally is also concurred by Ibn

Taimiyah, even three pronouncements of talaq in one session amount to

a single pronouncement only. The Hanafi School recognizes that where

23 Ibid, at 115. 24 “Deoband: Talaq given in a state of drunkenness valid,” The Hindu,

(30/03/2012)

KJLS VOL. VIII

46

strict application of a rule causes hardship an elective application of the

provisions of the Maliki, Shafi or Hanbali law is permissible.25

Judicial Approach

The Judiciary in India has largely been consistent in determining

the scope of divorce cases in general and triple talak cases in particular.

In Amir-ud-din v. Khatoon Bibi,26

the Allahabad High Court while

adopting the Hanafi view observed that the talaq-ul-biddat or irregular

divorce which is effect by three repudiations at the same time appeals

from the authorities to be sinful but valid and is perfectly legal form and

is irrevocable.

In Fazlur Rehman v. Mt. Aisha,27

the Patna High Court, followed

the Allahbad view, and held that the talak-ul-biddat or irregular divorce

where a husband repudiates his wife by three pronouncements at once is

a valid and binding form of divorce according to the law of Hanafis and

when pronounced thrice, it becomes irrevocable.

In A. Yusuf v. Sowaramama,28

Krishna Iyer J. observed: “Indo-

Anglican judicial exposition of the Islamic law of divorce has not

exactly been just to the Holy Prophet or the Holy Book…The view that

the Muslim husband enjoys an arbitrary, unilateral power to inflict an

instant divorce does not accord with the Islamic injunctions. The

statement that the wife can buy a divorce only with the consent of or as

delegated by the husband is also not wholly correct. Indeed, a deeper

study of the subject discloses a surprisingly rational, realistic and

modern law of divorce.It is a popular fallacy that a Muslim male enjoys,

under the Quranic law, unbridled authority to liquidate the marriage.”

“The Quran expressly forbids a man to seek pretexts for divorcing his

25 This principle was famously applied in enacting the Dissolution of Muslim Marriages Act 1939, which borrowed from the MalikI School’s liberal rules regarding the wife's right to seek judicial divorce. In this regard the role of Maulana Ashraf Ali Thanvi is commendable.

26 ILR39 All (1917) 371 27 AIR 1929 Pat.81 28 AIR 1971 Ker. 264


47

wife, so long as she remains faithful and obedient to him…” The

Islamic law gives to the man primarily the faculty of dissolving the

marriage, if the wife by her indocility or her bad character renders the

married life unhappy; but in the absence of serious reasons, no man can

justify a divorce either in the eyes of religions or the law.29

In Marium v. Md. Shamsi Alam,30

the husband had pronounced

triple talaq on his wife and when he repented his action, she filed a suit

for a declaration that she had been divorced by Alam. The Allahabad

High Court held that “a divorce pronounced thrice in one breath by a

Muslim husband would have no effect in law, if it was given without

deliberation and without any intention of affecting an irrevocable

divorce; such divorce is a form of talq-e-ahsan, and thus is revocable by

the husband before the iddat expires.” The court ruled that talaq

pronounced by Alam was revoked by him within the iddat period.

Therefore, the marriage between the couple was subsisting and the wife

was denied the relief she had asked for. The Allahabad High Court, thus,

had based its decision on the opinion of Ibn Taimiyah, which in the

subcontinent, is endorsed by the Ahl al-hadith.

In Shamim Ara v Uttar Pradesh31

the court held that a condition

precedent for the effectiveness of the divorce was not only to pronounce

divorce but to be proved on evidence. The correct law of talaq as

ordained by the Holy Quran is that talak must be for a reasonable cause

and preceded by the attempts of reconciliation between husband and

wife by the two arbitrator one from each side…if the attempts fails then

and then only talaq may be affected.

The J&K High Court followed the above judgment in Mariyum

Akhtar and anr. v. Wazir Muhammad32

. The court observed:

“The basic concept of law of divorce in the modern trend of

thinking is t put the restrictions on the caprice and whim of the husband

29 AIR 1971 Ker. 264(para 7) 30 AIR 1979 All. 257. 31 AIR 2002 SCC 518; AIR 2002 SC 3551 at p. 3556 32 2010 (II) SLJ 894 (at pp.912-913)

KJLS VOL. VIII

48

to give talaq to his wife at any time without giving any reason

whatsoever. It must be exclusively dealt with in accordance with the

Quranic injunction. If the relationship between the husband and wife

becomes strained, there should be two person, one from each of the

parties, chosen as arbiters, who shall endeavour to cause reconciliation.

Between the husband and wife and if the same is not possible, then the

divorce or talaq may be effected. in other words, an attempt for

reconciliation by the two relations, one each of the parties is an essential

condition precedent to divorce.

In Muahammd Naseem Bhat v. Bilkees Akhtar,33

the High Court

of Jammu and Kashmir held that though husband under Shariat laws has

power to divorce his wife yet this power is not absolute, unqualified and

unbridled. The husband claiming to have divorced her wife has not

merely to prove that he has pronounced Talaaq to his wife but has to

compulsorily plead and prove:-

That effort was made by the representatives of husband and wife

to intervene, settle disputes and disagreements between the parties and

that such effort for reason not attributable to the husband did not bear

any fruit.

That he had a valid reason and genuine cause to pronounce

divorce on his wife.

That talaq was pronounced in presence of two witnesses endued

with justice.

That talaq was pronounced during the period of tuhr(between

two menstrual cycles) without indulging in sexual intercourse with the

divorcee during the said tuhr.

In Smt. Hina and another vs. State of UP and others,34

Allahabad

High Court held that Triple Talaq is a cruel and the most demeaning

form of divorce. The court further said that Triple Talaq is not followed

by all sects of Muslim Community at large. Women cannot remain at the

mercy of the patriarchal setup held under the clutches of sundry clerics

33 AIR 2012 JK, (Judgment delivered on 30/04/2012 34 Writ No. 51421 of 2016, order dated: 05/11/2016


49

having their own interpretation of Holy Quran. The first wife (in this

case) has to live life for no fault of her but for the reason that her

husband got attracted to a lady half of her age which is the reason for

being divorced. The Court acknowledged the fact that the divorce is

permissible in Islam only in cases of extreme emergency when all the

efforts of effecting reconciliation have failed, then the parties proceed to

dissolution of marriage by Talak or Khula.

In Shayara Bano v Union of India and others35

Supreme Court of

India by 3:2 majority judgment declared the practice of instant Triple

Talaq as ‘unconstitutional’, ‘arbitrary’ and ‘not part of Islam. The Court

said, “What is bad in theology is bad in law as well”. The Court said’,

“Triple talak was against the basic tenets of Quran”. The Court also gave

Government six months to come with legislation on triple talak. Infact

instant triple talak is more concerned issue than triple talak. In former

case there is no interval period, rather it ends in abrupt.

Sociological Aspect

There is another aspect of triple divorce as well. The advocates of

change in Muslim Divorce law vis-à-vis triple talaq has to take serious

note of this issue as well that many Muslim women are beginning to

bring to the courts for adjudication. They are not asking for their divorce

be annulled so that they are taken back by their husbands. Nor are they

necessarily arguing that the Muslim practice of triple divorce should be

abolished. What they are asking for is that, if their husbands choose to

divorce them unilaterally, they should at least have the assurances that

they can subsist at the level of poverty which their married life provided.

In other words, the husband should be liable to pay their dower and

provide them maintenance so that they are at least assured of a level of

subsistence commensurate with their husband’s social standing. If the

protagonists of change in Muslim divorce law settle for a ban on the

practice of triple divorce, the agenda that most of the women who are

35 On 22th August 2017, Writ Petition No. 18 of 2016, http://www.livelaw.in/ last retrieved on 26. 12.2017.

KJLS VOL. VIII

50

seeking the rights of sheer economic survival through the courts, and

many more who would like to but are prevented form doing so by the

high costs of litigation, would die a natural death. The other aspect is

whether merely banning the practice of triple divorce would necessarily

prevent marriages from breaking up and would not make the situation of

women worse. Triple talak generally renders husbands liable to settle the

dower amount and return the dowry, thus they resort to skilful and

ingenious use of the stratagem of khula form of divorce to disengage

themselves form a marriage which they want to break. They would cast

away the wife and coerce her to ask for a divorce at their own initiative

so that they are able to escape the liability of paying her dower, returning

her dowry and providing her maintenance. One obvious legal

implication of imposing a simple ban on the practice of triple divorce

would be that the power to pass judgment on the viability of congeal

relationship is at present places within the control of the individual

husbands and wives and would pass on to some external authority like

courts, or any other institution.

It is pertinent to mention that the present BJP Government at the

Centre introduced the Triple Talak Bill or Muslim Women (Protection of

Right on Marriage) Bill 2017 in Parliament to criminalize the practice of

instant triple talak. The bill, proposes three years imprisonment for

Husband for pronouncing Triple Talak and also maintenance for women.

It is submitted that proposed bill has failed to address the core issue for

which it was enacted. The bill sought to abolish triple talak. However

instead of abolishing triple talak it has criminalized it. Section 7 of the

draft Bill makes pronouncement of triple talak as a cognizable and non

bailable offence. One fails to understand how husband can be

prosecuted prima facie on such act which will not end marriage at all. If

‘talak talak talak’ cannot dissolve marriage as per bill then how can

these words constitute a crime? The scope of reconciliation ends

immediately if husband is prosecuted on the complaint of wife. Further it

will complicate the condition of wife and children for the want of

maintenance when husband is in jail. There are inherent contradictions


51

in the bill. On one side, the bill states that triple talak is no talak, but on

the other hand the bill via section 4 and 5 presumes that on pronouncing

instant talak marriage is dissolved as these two provisions provide for

maintenance in the name of subsistence allowance and give custody of

children to wife. It is pertinent to mention that there is already section

498A of IPC, Domestic Violence Act and Dowry Prohibition Act which

is available to Muslim Women. Another dimension is that over the years

courts have unnecessarily intermingled the amounts granted under

maintenance, dower, and gifts , even though all the three are different

components operating in different legal mechanisms.

Conclusion

From the above discussion, it can be seen that there are varied and

inconsistent views on the issue of Divorce Laws in general and Triple

Talaq in particular, across the religious and judicial forums. The Islamic

scholars, jurists, theologians and law makers need to take careful

consideration of all the issues, pros and cons of triple talaq and should

look for a holistic view on this critical issue to find way out for the

betterment of gender justice. Extreme tendencies on each side have

made this issue more critical and complicated. More importantly the

grim picture of Muslim women folk is shown vis-à-vis divorce in India

which is not the true. There were reportedly sixty six cases of instant

triple talaq after the Shayra Bano Judgment of the Supreme Court as

stated by Law Minister of India in Lok Sabha. This is hardly any number

given the Muslim population in India counts for approximately 172

million. Even Supreme Court of India in Shayra Bano Case noted that

incidents of triple talaq were negligible. Talaq in its essence is savior, if

the institution of marriage is not running in success for both the spouses.

There is need to counsel the parties regarding the rights and duties of

marriage. The issue of triple talaq seems more of a political discourse

than a religious one, the way it has been debated and discussed in India

over the past two decades especially in the context of uniform civil code.

KJLS VOL. VIII

52

The Muslim Women in India is shown as the victimized constituency

vis-à-vis triple talak, polygamy, maintenance etc.

Education as a Consumer Service: National and International Perspective

Uzma Qadri*

Abstract

Education is fundamental to the progress and unity of nations and

an indispensable state responsibility. Education is necessary first to

enable each human being to know his or her human rights.The United

Nations has proclaimed the existence of a human right to development.

This right refers not only to economic growth but also to human welfare,

including health, education,employment,social security, and a wide

range of other human needs.It is the obligation of states and

intergovernmental organizations to work within the scope of their

authority to combat poverty and misery in disadvantaged countries.An

alert consumer is an asset to the nation. We dedicate ourselves to be

more proactive in spreading consumer movement for a wide so that each

one of us knows our rights and responsibilities for our own welfare and

development of a vibrant and stable economy. This Paper highlights the

right to education at international level in detail under various

conventions, protocols and agreements. The measures adopted in India

have also been discussed. The constitutional and legal measures adopted

by the Indian government to change right to education from statutory

right to fundamental right has been focused upon including education

as a consumer service under Consumer Protection Act, 1986 in India.

Keywords; Educational Rights, Consumer Services,

Globalisation, Children, Constitutional Rights.

Introduction

Etymologically, education has been derived from the Latin word

‘educare’1 which mean to train or to mould. Children are the nation’s

assets and future resource of man-power for the country. They constitute

the core of human society. It is their development which sustains the

society, their development with dignity is a matter of great concern

* Research Scholar,Deptt.Of Law, University Of Kashmir 1 Seetharamu.A.S. ‘Philosophies of Education, APH Publishing,

NewDelhi(1978),P.11.

KJLS VOL. VIII

54

throughout the world.2 It has been recognized that elementary education

is a fundamental component of education, and the most significant part

of the development process. Education plays perhaps the most important

role in the development of a human being and national development.

The realization of the right to development of human beings and the

nation is impossible without the recognition of the right to

education.3

Right to education encompasses a frame work for the

realization of children’s right to education and rights within education.

The subject of ‘education’ has always been of continuous universal

significance because it lays down the firm foundation of politically

organized civil society and its social order. Indeed, it is perhaps the most

potent weapon which enables the state to fructify its public policies by

moulding and even unifying the understanding and resolve of its people

on some rational scientific basis. In respect of public domain, one is

tempted to quote a onetime statement from the speech made by Tony

Blair, a distinguished British labour statesman, at the Labour Party

Conference in 1996, in which, he himself raised and responded, “Ask me

my three main priorities for Government, and a tell you: Education;

Education and Education4.

The constitutional and urgent measures adopted by the Indian

government from time to time to change the status of education from

statutory right to fundamental right. Safeguards provided under the

consumer protection Act in the light of the growing trend of

privatization, commercialization and Globalizations. Globalization has

created an ever-widening and deepening process of increasing

interdependence of peoples and states. It has turned the world upside

down. Globalization puts the world at risk, yet opens new and exciting

2 Awasthi, S.K.&Kataria R.P., law relating to protection of human Rights, Melleniu, education (orient Publishing co. New Delhi/Allahabad 2001)p. 19.

3 MukulitaVijaywarguya. The child Right to primary education in India; Law, policy and enforcement (1998-99) 20 law review,J.N. P.G.,Law colleges Lucknow 13-22-, at 13.

4 From the speech at the labour party conference, October 1, 1996.

EDUCATION AS A COMSUMER SERVICE

55

opportunities for vast and unprecedented improvements in the lives of

populations everywhere. Higher education plays an important role in

providing these opportunities by creating innovations and inventions and

developing new knowledge is through research and instruction. Yet the

interplay between globalization and dissemination of knowledge is

complex; Entrepreneurialism, exchange and study abroad programmes

and new curricula are all meeting the challenges of this knowledge

explosion.

International Instruments Guaranteeing the Right to

Education

Right to education has been widely accepted and recognized

internationally. There is specific recognition of the right to education in

some international instruments. At first, this was incorporated in the

Universal declaration of Human rights (UDHR) 19485

which reads

‘everyone has the right to education. Education shall be free, at least in

the elementary and fundamental stages’. Though UDHR envisages

education as a human right, it has been placed or classified as a socio-

economic right. Since the capital is required to achieve the said

right,therefore, the same right has been envisaged under principle of the

UN Declaration of the Rights of the Child, 1959.6 Since 1952, Art 2

7of

first protocol to the European Convention of Human Right obliges its

signatory parties to guarantee the right to education. At the global level,

the United Nation’s International Covenant on Economic, Social and

Cultural Rights of 1966 guarantees this right under its Article 13.8

5 Art 26(1) of Universal declaration of Human Rights 1948. 6 Principle 7 reads: “The child is entitled to receive education, which shall

be free and compulsory, at least in the elementary stages… enjoyment of this right”.

7 Art 2 provides for the right to be denied….. quality 8 Article 13 of the Covenant recognises the right of everyone to free

education (free for the primary level and "the progressive introduction of free education" for the secondary and higher levels). This is to be directed towards "the full development of the human personality and the sense of its dignity",[19] and enable all persons to participate effectively in society. Education is seen both as a human right and as "an indispensable means of realizing other human rights", and so this is one of the longest and most important articles of the Covenant.

KJLS VOL. VIII

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Education, according to UNICEF, is an in alienable, non-

derogable right that is in extricable linked to other fundamental human

rights and must be guaranteed to all children. Education is a tool for the

development of children to their full potential as well as to improve the

lives of vulnerable and marginalized children besides being essential to

promote the empowerment of the girl -child. In emergencies, education’s

unique transfer native potential offers an excellent vehicle for improving

security healing social service provision and reintegration following

crises.9

The right to education has been established as basic human right on

14th December, 1960, UNESCO adopted the Convention against

discrimination in education. It came into force on 22nd

May 1962.This

convention declared that discrimination based in race, religion, colour,

language, sex amount to violation of human rights.10

The 1959,

Declaration on the rights of the child observed that “Mankind owes to

the child the best it has to give”. Art 25(2) of the Universal Declaration

of Human Rights states: “Motherhood and childhood are entitled to

special care and protection.11

Article 14 of the International Covenant on

Economic, Social and Cultural Rights, (ICESCR) 1966 deals with the

right to education. Article 3 of the Convention on the Rights of the

Child, 1989 reads as “In all actions concerning children, whether

undertaken by public or private social institutions, courts of law,

administrative authorities or legislative bodies, the best interests of the

child shall be a primary consideration.”

Article 28 of the same convention on the Rights of Child, 1989

emphasis same as under Article 13 of the ICESCR, 1966 convention.

Article 29(2) of the Convention of the Rights of the Child, 1989,

regarded as the Magna Carta for children states “the education of child

9 UNICEF submission to the committee on the rights of the child, 2008 day of general discussion (19 sep, 2008) httpp://www.crim.org/does/UN.CEFD.Doc.

10 Article 1(2) “all types and levels of education, (including) access to education, the standard and quality of education, and the conditions under which it is given.

11 Yearbook of United Nations, 1948-49, p. 535


57

shall be directed to the development of respect for human rights and

fundamental freedoms, and for the principles enshrined in the character

of the United Nations”.12

In a wider sense education may describe “all

activities by which a human group transmits to its descendants a body of

knowledge and skills and a moral code which enable the group to

subsist”.13

In this sense education refers to the transmission to a

subsequent generation of these skills needed to perform tasks of daily

living, and further passing on the social, cultural, spiritual and

philosophical values of the particular community. The wider meaning of

education has been recognized in Article 1(a) of UNESCO’s 1974

recommendation concerning education for international understanding,

co-operation, peace and education relating to Human rights and

fundamental freedoms.14

The article states that education implies “the

entire process of social life by means of which individuals and social

groups learn to develop consciously within, and for the benefit of, the

national and international communities, the whole of their personal

capabilities, attitudes, aptitudes and knowledge”.15

The European Court of Human rights has defined education in a

narrow sense as “teaching or instructions … in particular to the

transmission of knowledge and to intellectual development” and in a

wider sense as the whole process whereby, in any society, adults

endeavor to transmit their beliefs, culture and other value to the young.

The Millennium Development Goals (MDG’s) adopted at the

Millennium Summit in September 2000 adopted eight goals. Out of

these MDG 2 aims to ensure that children everywhere boys and girls –

will be able to complete a full course of primary schooling, MDG 3

targets to eliminate gender disparity by 2005, and at all levels by

2015.The MDGs on education echo the education for all (EFA) goals

also adopted in 2000.

12 Convention on the Rights of the child ,1989. 13 Beiter, Klals Dieter (2005). The protection of the Right to Education by

International law. The Hague MartinusNijhoft Publishers p. 19 ISBN 90-04,14704-7

14 Beiter pp. 226-227 ISBN. 9789064147041. 15 Ibid 14.

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58

The right to development in the developing countries is itself a

human right. The same has been made a part of WTO and GATT 16

it is

stated: ‘the united Nations has proclaimed the existence of a human right

to development. This right refers not only to economic growth but also

to human welfare, including health,education,employment,social

security, and a wide range of other human needs. This human rights to

development is vaguely defined as a so-called third-generation human

right that cannot be implemented in the same way as civil and political

human rights.Rather,it is the obligation of states and intergovernmental

organizations to work within the scope of their authority to combat

poverty and misery in disadvantaged countries.’

General Agreement on Trade in services (GATS).

GATS is the first international legal trade agreement that focuses

exclusively on trade of services. The other focus on the trade of products

such a GATT – General Agreement on Tariffs and Trade.GATS is

administered by the world Trade organization.17

Under GATS there are

four ways in which a service can be traded. These are known as “modes

of supply” These four modes apply to all 12 of the service sectors (made

up or 160 sub-sectors) in GATS, including education. Nowadays some

kind of education is compulsory to all people in most countries due to

population growth and the proliferation of compulsory education.

UNESCO has calculated that in the next 30 years more people will

receive formal education than in all of human history thus far18

Marginalisation focuses on the fact that while progress has been

made, the failure to reach millions of children excluded from education

by poverty, gender, location, ethnicity, disability and language means

the 2015 education for all (EFA) goals remain out of reach and the

worsening effect of the financial crisis has led to fears that, in the

world’s poorest countries, a generation of ‘lost children’ who will never

16 Maurois’s &schoenbaum, Mutusushita, The World Trade Organization,Law,Practice,And Policy(oxford) at P.389,

17 See http//www.wto.com. 18 Robinson, K., Schools kill creativity, TED Talks, 2006, Monterrey, CA,

USA.


59

benefit from education is being created.19

Millions of children are

excluded from their right to basic education and particularly to primary

education. Access to primary education is still hampered by many

factors, such as geographical location. Income differentiation and social

statues. The goal of universal primary education is an integral part of

UNESCO’S wider development efforts and has an inclusive purpose.20

Right To Education: Indian Scenario.

In India, the subject of right of children to free and compulsory

education is of immense fundamental importance, unarguably, it

constitutes the very basis for the meaningful functioning of our

democratic political system. Education plans in the initial years after

independence were formulated in the content of new enthusiasm and

high expectations. Jawaharlal Nehru in the conference of state education

ministers argued that “the entire base of education must be

revolutionized”. In 1948, an all India education conference was

convened by the then union minister of education which endorsed the

recommendations of earlier committees on free and compulsory

education. The national leaders visualized the extension of democracy

from political to economic spheres. From the first five-year plan

onwards, India’s emphasis was to develop a pool of scientifically

inclined manpower.21

JawaherLal Nehru in the conference which was

convened by the then union minister of education which endorsed the

recommendations of earlier committees on free and compulsory

education. The national leaders visualized the extension of democracy

from political to economic spheres.22

The Nehru government sponsored

the development of high- quality scientific education institutions such as

the Indian institutes of Technology. In 1961, the union government

formed the National Council of Educational Research and Training

19 UNESCO flagship education report warms of a ‘generation of lost children, http://www.portal.UNESCO.org/education/en/ev.php.

20 Primary education, http://www.portal.UNeSCO.org/education/en/er.php. 21 “Infrastructures&T Education, Science and Technology in India edited by

R.K.Suri and KalapanaRaja ram(2008), New Delhi:spectrum. 22 Bala, Shastrieducation: “Fundamental Right of Children in India”CPJ law

journal Vol II July 2012

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60

(NCERT) as an autonomous organization that would advise both the

union and state governments on formulating and implementing

education policies23

.

The National Policy on Education (NPE) is a policy formulated by

the government of India to promote education amongst India’s people.

The policy covers elementary education to colleges in both rural and

urban India. The first NPE was promulgated in 1968, based on the report

and recommendations of the education commission (1964-1966). The

policy called for fulfilling compulsory education for all children up to

the age of 14, as stipulated by constitution of India, and better training

and qualification of teachers.24

Having announced that a new policy was in development in

January, 1985, the government of Prime Minister Rajiv Gandhi

introduced a new National Policy on education in May, 1986.25

The new

policy called for special emphasis on the removal of disparities and to

equalize educational opportunities especially for Indian women,

scheduled tribes (ST) and the scheduled caste (SC) communities.26

The

NPE called for a “child-centered approach” in primary education and

launched “operation blackboard” to improve primary schools

nationwide.27

According to the policy the highest priority will be placed

on solving the problem of dropouts and ensuring retention at the school

level.28

Education is fundamental to the all round develop of a person. With

the Constitutional Amendment of 1976, education has been placed on

the concurrent list, which gives the central government a bigger role in

the implementation of education. In 1992, Parliament approved on

updated National Policy on education. The new policy opted for giving a

priority for girl’s education and improved quality in primary education.

23 National council of Educational Training.http://www.ncert.nic.in/html/pdf 24 ‘National informatics centre pp 38-45 http://www.education.nic.in

/policy/npe-1968pdf 25 “ National Education policy 1986”National informatics centre.pp 38….45 26 Ibid 26 27 Ibid 26 28 http://www.childline.india.org.in /National-policy on –education-1986.


61

Thus, in 1992 constitutional (73rd

and74th) amendments were carried out

which visualized the increase in the responsibility and the authority of

local governments. The Central Advisory Board of Education issued a

special report as to how to decentralize the management of education,

detailing the structure, role, functions and powers of local bodies, with

the objective of improving the efficiency and effectiveness of schools

and to reducing demoralization at the local level (Ministry of HRD,

1993). These amendments gave the control of primary, secondary, adult,

non-formal technical and vocational education to Panchayati Raj bodies.

Almost all the states have passed enabling legislation for implementing

the said constitutional amendments; administration guidelines for

decentralization are also being issued29

.The nation’s children are

supremely important assets. Their nature and solicitude are our

responsibility. Children’s programme should find a prominent part in our

national plans for the development of human resources so that our

children grow up to become robust citizens, physically fit, mentally alert

and morally healthy, endowed with the skills and motivations needed by

society. Equal opportunities for development to all children during the

period of growth should be our aim for this would serve our large

purpose reducing inequality and ensuring social justices.30

As a signatory to the United Nations Child Rights

Convention, India has accepted the International definition of a

child as someone under the age of 18 years. National policy for the

welfare of children proclaims, the nation’s children are supremely

important asset, equal opportunities for development to all children

during the period of growth should be our aim, for this would serve our

large purpose of reducing inequality and ensuring social

justice.“Education for all is not a mere question of literacy. It is an

empowerment of people. What is it that we are seeking? We are striving

29The world Bank Publication,Primary Education in India,Edn.,march,1997,chapter 1. 30 The Supreme Court in LaxminathPanday V. Union of India and other,

1991 in Dr.Dalim Kumar Banejee, SishuManaBadhiker, Kolkata, 1999, p. 38.

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62

to achieve a world in which peace and harmony reign, a world free of

poverty and malnutrition. Education is the path that leads to that

world”31

Education is the most powerful weapon which can be used to

change the world.32

The nation’s children are supremely important assets.

Their nurture and solitude are our responsibility. Children’s programme

should find a prominent part in our national plans for the development of

human resources so that our children grow up to become robust citizens,

physically fit, mentally alert and morally healthy endowed with the skills

and motivations needed by society. Equal opportunities for development

to all children during the period of growth should be our aim for this

would serve our larger purpose reducing in equality and ensuring social

justice.33

Education is the most powerful weapon which you can use to

change the world.34

For the effective monitoring of the implementation of

right to education, the child rights commissions have very important

roles. However many states did not even bother to constitute such

commissions. InRe:Exploitation of children in orphanages in state of

Tamil Nadu v.Union of India35

the Supreme Court found that 19

states/Union Territories have not constituted Commissions for Protection

of Child rights under section 17 of the commissions for protection of

Child Rights Act,2005.The founder fathers of the nation recognizing the

importance and significance of right to education made it a constitutional

goal, and placed it under chapter IV. Directive Principles of State Policy

of the Constitution of India, Art 45 of the constitution requires state to

make provisions within 10 years for free and compulsory education for

31 P.v. Narisimha Rao, former prime minister of India, at the Education for all summit of nine high population countries, New Delhi,16 December 1993.

32 Bala, ShastriEducation: “Fundamental Right of Children in India”CPJ law journal vol II july 2012.

33 The supreme court in LaximinathPanday V Union of India & others,1991 in Dr.Dalim kumar Banerjee,Sishu manbadhiker,Kolkata,1999,p.38

34 These words of Nelson Mandela were quoted and considered by the supreme court of India during the year under survey.

35 2013(1)SCALE 379(2)


63

all children until they complete the age of 14 years36

.Further Article 46

declares that the state shall promote with special care the educational

and economic interests of weaker section of the people. It is significant

to note that among several Articles enshrined under part IV of the Indian

Constitution. Art 45 had been given much importance as education is

the basic necessity of the democracy and if the people are denied their

right to education then democracy will be paralyzed; and it was,

therefore, emphasized that the objective enshrined under Art 45 in

chapter IV of the constitution should be achieved within 10 years of the

adoption of the constitution. By establishing the obligations of the state

the founder fathers made it the responsibility of coming government to

formulate a programme in order to achieve the given goals, but

unresponsive and sluggish attitude of the successive governments to

achieve the said objectives denied this benefit all the children below the

age of fourteen years.

The Supreme Court in case of BandhuaMuktiMorcha37

while

interpreting the scope of the right to life under Article 21 held that it

included “educational facilities”. The law relating to education received

purposeful and liberal interpretation by the SC and several High-Courts

during the years. The content of the right to education as a fundamental

right was well enthroned including the right to quality education as part

of right to education. Similarly the right to education was also

interpreted as a right to education without being discriminated on the

grounds of economic, social or cultural back grounds. Availability of

drinking water and toilet facilities were also read into as part of the

fundamental right under article 21A. The rights of students, education

institutions and the staff of the educational institutions were

meaningfully interpreted in the content of changing circumstances.38

36 The constitution of India, (as on the 26th January, 2005), Government of India, Ministry of Law and justice, p. 18.

37 BandhuaMuktiMorcha V Union of India, AIR 1984 SC 802. 38 Education Law. M.P. Raju. Annual Law Survey.

KJLS VOL. VIII

64

In Mohini Jain V State Of Karnataka39

the SC after mentioning that

“right to education” as such has not been guaranteed as a fundamental

right under part – III of the Constitution held that reading article 21,

38, clauses (a) and (b) of articles 39, 41 and 45 cumulatively, it becomes

clear that the framers of the constitution made it obligatory for the state

to provide education for its citizens. Relying on the preamble which

promises to secure justice “social, economic and political” for the

citizens and assures the dignity of the individual, the court observed.

“An individual cannot be assured of human dignity unless it is

accompanied by the right to education. The state government is under an

obligation to make endeavor to provide educational facilities at all levels

to its citizens”.40

Public demand and SC’s judgment in Unni Krishnan v

State of A. P41

to enforce the right to education, successive governments

from 1993 onwards worked towards bringing a constitutional

amendment to make education a fundamental right.

In Unni Krishnan V. State of AP (1993) the Supreme Court

observed that: “The right to free education up to the age of fourteen

years is a fundamental right.42

Quoting noted educationist J.P. Nayak,

Gunnar Myrdal observed in his book the Challenge of World Poverty

(1970) that “educational development… is benefiting the ‘haves’ more

than ‘have not’s. This is a negation of social justice and planning

proper”43

In above case, the Supreme Court observed. “… history is made not

on the battlefields.. but in the educational institutions which are the

seedbeds of culture, where children in whose hands quiver the destinies

of future are trained. 44

39 (1992) 3 SCC 666, 677. 40 Rao P.P., “Fundamental Right to Education” Journal of the ILI, Oct-Dec

2008 Vol 50, No. 4 41 (1993) 1 SCC 645. 42 Supreme Court Cases (1993) / SCC p. 684, para 54 43 Dalim Kumar Banerjee and AmitBaneerjee, ManaBadhhkernPathe,

Kolkata, 2nd edition 15th August 2009, p. 99. 44 UnniKrishnan V. State of A.P. Supreme Court cases (1993) 1 SCC, p. 644,

Para 13


65

The National Commission to review the working of the

Constitution suggested that it should be laid down in article 45 that states

shall make provision for education beyond the age of 14 years within the

limits of its economic capacity and stage of development The

Commission also recommended “… that an independent National

Education Commission should be set up every five years to report to

Parliament on the progress of the constitutional directive regarding

compulsory education and on other aspects relevant to the knowledge

society of the new century.45

The right of children to free and compulsory Education Act or

Right to Education Act (RTE),2009 describes the modalities of the

importance of free and compulsory education for children between 6 and

14 in India under Article 21A of the Indian constitution.46

India became

one of 135 countries to make education a fundamental right of every

child when the act came into force on 1st April 2010.

47It is recommended

that the relevant provisions in the constitution (93rd

Amendment) Bill,

2001 making the right to education children from six years till the

completion of fourteen years as a fundamental right should be amended

and enlarged to read as under:-48

“30-C every Child shall have the right to free education until he

complete the age of fourteen years; and in the case of girls and members

of scheduled castes and scheduled tribes, until they complete the age of

eighteen years.”

Parliament did not act upon this recommendation. The

Commission noted that “the national goal of universalization of

elementary education has still not been reached. Education for all

remains an objective with the target date being pushed forward after

45 Ssc, Report of the National Commission to Review the Working of the Constitution 214, Para 23 (2008)

46 Provisions of the Constitutions of India having a bearing on Ed” Department of Higher Education; httpp://www.education

47 AartiDhar (1 April 2010). “Education is a fundamental right now” The Hindu, http://beta.thehindu.com/news/national/article 337111.Ece, home page true.

48 India launches children right to education” BBC News April 2010.http//news.bbccouk/2/hi/8598167.stm

KJLS VOL. VIII

66

every review. Increase in literacy rates to 72 percent by 2007 and to 80

percent by 2012, and universal access to primary education by 2007, has

been set as goals in the approach paper to the tenth plan.’ The

commission suggested “it should also be laid down in Article 45 that the

state shall make provision for education beyond the age of fourteen

years within the limits of its economic capacity and stage of

development”.

Education As A Service; Under Consumer Protection Act,

1986.

The Consumer Protection Act does not expressly include education

in the definition of service. The questions which arise in the field of

education vis-à-vis application of the C.P.Act are whether the

educational institutions render service, as defined under the CP Act, to

the students or not? Whether the conduct of examination, re-evaluation

and re checking of answer papers, delay in declaration of results etc., by

a school, board or university for a prescribed fee is a service under the

C.P.Act? These are some of the basic questions which need to be

focused.

The term service has a variety of meanings. It may mean any

benefit or any act resulting in promoting interest or happiness. It may be

contractual, professional, public, domestic, legal, statutory etc.The

concept of service thus is very wide. How it should be understood and

what it means depends on the context in which it has been used in an

enactment. Commenting upon the scope of the’ service’ as defined

under the C.P Act, the Supreme Court in Lucknow Development

Authority v M.K.Gupta49

observed;

“The entire purpose of widening the definition, is to include in it

not only day-to-day buying and selling activities undertaken by a

common man. But even to such activities which are otherwise not

commercial in nature yet they partake of a character in which some

benefit is conferred on the consumers.”

49 1994 SCJ Vol 1 at 113


67

In view of the apex court’s observation, it can be safely said that

education is a service offered by the government and the private

institutions, and if it is offered by the government and the private

institution, and if it is offered for consideration it will come within the

definition of term ‘Service’ as given in section 2(1)(0). The term

‘education’ included under section 2(1)(0) may be said to include

within the phrase ‘Service of any description’. There is no specific

guideline on this matter but some judicial decisions throw light on this

matter. Determination of education as a service under the Act must be

judged on the marketability of the service. Thus, in the educational field

as a public service intended to promote the interest of the society at large

will get excluded, only when such services are afforded to individuals

for their benefit without consideration will be taken out of net. Some of

the leading cases in this regard are discussed below.

1. In Buddhist Mission Dental College & Hospital V Bhuspesh

Khorana,50

Supreme Court held:

• The complainant hired the services of the BMDCH for

consideration and hence they are covered under the definition of

‘consumer’ under the Consumer Protection Act 1986.

• On payment of an amount as consideration the complaints were

admitted to the BDS course by BMDCH, which was neither affiliated

nor recognized for imparting education. Therefore, such an act falls

within the purview of ‘deficiency’ as defined in the consumer protection

Act, 1986.

2. Controller,Vinayak Mission Den.Col V GeetikaKhare51

was yet

another case involving the claim of deficiency in service. The

respondent in this case had secured admission to a BDS college which

was established and run by the appellant but had to withdraw from the

same on account of lack of recognition of the said college and also other

deficiency in service. The respondent in this case had secured admission

to a BDS college which was established and run by the appellant but had

50 (2009)1 CPJ 25(SC) 51 (2010)2SCR 779

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to withdraw from the same on account of lack of recognition of the said

college and also other deficiencies, which as per the respondent’s

contentions, not only caused inconvenience and mental harassment but

also resulted in the loss of an academic year. Therefore, the respondent

filed a complaint against the appellant alleging deficiency in service and

seeking not only refund of fee paid for the course but also a

compensation for the loss of an academic year and mental harassment,

etc. The State Commission allowing the complaint passed an ex parte

order in favour of the respondent. Aggrieved, the appellant approached

the National Commission which partly allowed the appeal and reduced

the compensation. On appeal, the SC noted that during the pendency of

the appeal before the National Commission, the appellant as per

directions from the commission had deposited the amount received by it,

towards fee from the respondent with interest and the respondent had

withdrawn the same .so the only issue that remained for consideration

was whether any further amount was payable to the respondent. The

appellant contended that the impugned order of the state commission

was an ex-parte order and that respondent had suffered no prejudice or in

convenience on account of her having taken admission in the dental

college of the appellant. After considering the submissions and the

materials on record, the court was of the opinion that since the fee

amount was already paid to the respondent, no further amount was

required to be awarded to the respondent.

3. In RithvikK.R.V.Union of India52

four students applied for

admissions in MBBS Course against management quota for 1 year

MBBS course for the academic year 2014-2015 along with fees and

donations amounting to approximately eighty lakhs. The father of one of

the student was also made to sign an undertaking that he understands

that for admission given to his son was only provisional and subject to

approval by Raju Gandhi university of Health Sciences/Medical

Council of India(MCI)and in excess of the stipulated management seats.

52 ILR 2015 Kar 4459, 2015 SCC online Kar 2305.


69

In case of non-approval, the management and the college will not be

responsible. Later, three of the students were discharged from the

college on the ground that their admission in colleges for that academic

year was not valid. The issue was whether there was a deficiency in

service by the college authorities in admission process. The High Court

found the conduct of the college of taking such an undertaking from the

parents of the student along with huge amounts of donation disturbing

and ordered the MCI and central Government to take serious note of the

matter and take measures to ensure transparency in the admission

process even against management quota, especially by making it more

technology based. The High Court also found the college’s act of not

discharging the students with illegal admission and not refunding the

amount received from them well before the last date for admission in

colleges for the academic year and unnecessary litigation causing

unimaginable mental agony to them, ordered the college to pay Rs.1

crore each to all the three students as compensation along with refund of

the amount paid by them to the college for the mission

CONCLUSION

Education is an instrument of social change. Education is also an

instrument of upward social mobility. These sociological visions of

education can be translated into a living reality through planned policies

and programs for the most vulnerable to remove the inequities of our

society and to correct the historical imbalances of the past.In a federal

system with divided legislative and administrative tasks, education from

virtual to real is contingent on the structure put in place for its

implementation to begin with. This structure finds an expression in the

legislation(s) relating to education promulgated by various states to suit

their special and specific needs.The role of international organizations

regarding the implementation of the right to education is just not limited

to the preparation of documents, conducting conferences and

conventions but is alsoto undertake the operational programmes

assuring, access to education of refugees, migrants, minorities,

indigenous people, women and the handicaps. India having participated

in the drafting of the declaration and alsohaving ratified the covenant,is

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70

under obligation to implement such provisions.Multifarious judicial

decisions in respect of the classifiability of different kinds of educational

activities performed by educational institutes as services, as defined in

the 1986 Act, has ascertained the current position in law, in respect of

the amenability of educational institutes and their activities to the

provisions of the 1986 Act, and to the extent thatsuch ascertainment is

capable, perused and analysed. Educational institutes are classifiable as

marketable services. Educational institutes performing educational

activities can be christened as service providers. Likewise, in respect of

the inquiry, i.e. whether the student, in respect of whom the educational

activities are performed, or his parents or sponsors as the case may be,

can be regarded as consumers of such services, too, the answer is

without a doubt, in the affirmative. When the goal of education is service

to humanity it elevates the student to view life from a higher panorama.

An Appraisal of Magnitude of Surrogacy under Islamic Law

Unanza Gulzar∗

Abstract

Human reproductive system is complex biological machinery

responsible for the procreation of the children. In our society where

having a child is considered to be the greatest blessing of the Almighty,

as the need for bearing children, feeding them, playing with them,

shaping their future and sharing their dreams is immense; it is therefore

a basic human need. But this blessing is not guaranteed to all and there

are many who are deprived of the same due to one reason or the other.

With an eye on the strong human desire to have an off-spring, much

scientific advancement has been made to tackle the problem of

barrenness in the couples. For such couples, Assisted Reproductive

Technology (ART) came one such a response to their prayers and

diminishing hopes. At one end such technological advancements are a

great relief for the infertile couples and on the other hand they have

brought forth the questions of ethics and legality. Surrogacy being the

most popular of them is constantly under the radar of discussion and

debate. India, the land of plethora of cultures and religions has become

the epicenter of the Surrogacy. It will not be wrong to say that India is

the world capital of surrogacy. Assessing it from the view point of the

personal laws is therefore very important as most of the family matters

are governed by the personal laws of the person concerned. Therefore,

through the instant academic venture a humble effort has been made to

analyze the concept of surrogacy under the Islamic law which forms the

personal law of the second largest population of the country.

Keywords: ART, Islamic law, Marriage, Surrogacy.

∗ Assistant Professor, School of law, The NorthCap University can be reached at [email protected].

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Introduction

The very first relationship which was created by the Almighty was

that of a husband and wife in the form of Adam and Eve (Adam and

Hawwa as per the Islamic belief) and then came other relations like that

of a parent-child, brother-sister and so on. Interestingly, the first relation

will also be the last one as number of traditions provide for that the wife

will be with his husband in the jannah(heaven) and vice versa. This

clearly signifies the importance of the relationship of husband and wife

or in other words that of the marriage. The emphasis on the same can

also be laid by the following tradition of the Prophet Muhammad, “He

who marries completes half of his religion. It now rest with him to

complete the other half by leading a virtuous life in constant fear of

God”.1Aglance at the object of marriage under Islamic Law also gives us

an idea that of all the objects of a Muslim marriage, procreation of

children is one of the most important one.2 Meaning there by the most

important of all the relations i.e. marriage comes with an object of

procreation of children, which is also considered to be one of the

greatest blessing of the Almighty.

According to World Health Organization data, infertility affects

approximately eight to twelve percent of couples of reproductive age

(e.g., ages 15-49) worldwide. It is a global health issue that affects

approximately 80 million people worldwide, more than half of whom are

Muslims.3Infertility in our society causes both biological and social

havoc and therefore, a number of scientific developments have been

made to tackle the problem. A major breakthrough in this regard was

made in 1978 when a successful pregnancy and the birth of a girl were

achieved as a result of In Vitro Fertilization (IVF). That success led to

several technological innovations that heralded a new era of "Non Coital

Reproduction". These methods are collectively known as "Assisted

1 Prof. I.A. Khan, Mohammedan Law 111 (Central Law Agency, Allahabad, 23rd edn., 2009)

2 Id. at 109 3 Aref Abu-Rabia, Infertility and Surrogacy in Islamic Society: Socio-

Cultural, Psychological, Ethical, and Religious Dilemmas” 6 TOPSYJ 54(2013)

AN APPRAISAL OF MAGNITUDE OF SURROGACY UNDER ISLAMIC LAW

73

Reproductive Technologies (ARTs)." Thousands of couples are

achieving pregnancies through the use of ARTs every year for the desire

to have one’s own off-spring.

Assisted Reproductive Technology (ART) is the upshot of recent

endeavor to study the complexities of barrenness. Prior to such

technological advancements, treatment was mainly done through

medications to correct hormonal deficiency or by surgery to correct

anatomical defects. Such methods proved non-controversial from an

ethical or religious point of view. Contrary to this Assisted Reproductive

Technologies (ARTs) have transferred the process of procreation from a

private, personal relation between the couple into artificial means in a

lab and in many cases involving a third party. This drastic modification

has raised several ethical and religious questions, which seek to ascertain

its validity and general acceptability.

Of all the ARTs methods, (Artificial Insemination, In Vitro

Fertilization, Donor eggs sperms and embryos etc.) Surrogacy has made

a gradualrise in the popularity of these newly developed methods. There

are many couples and single those are turning towards surrogacy as a

solution to satisfying one of the basic desires of human life.

However, at the same time in the backdrop of thriving business of

surrogacy, Islamic Fiqh Academy (IFA), urged the government to bring

legislation to curb the immoral and unnatural practice of surrogacy

which has now come out of the shadows as many women are offering

their wombs on rent out of choice. They described the practice as

‘Haram’ (prohibited) as against the established moral values of all

religions and against all norms of human life and is morally and

physically devastating to the society. Many are quite open about

surrogacy and offer their services with the full knowledge of their

husbands, parents or relatives. Scholars of IFA were concerned about the

complete erasure of the mother in these acts of womb renting by wealthy

westerners. The resolution passed by IFA in the year 2014, held hat

womb renting will destroy one’s family-identity and will blur the

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74

institution of marriage. For infertile couples it’s a chance to have a child

but it is blurring the parenthood.4

The Birds eye-view of Surrogacy

The word ‘surrogate’ has its origin in Latin ‘surrogatus’, past

participle of ‘surrogare’, meaning a substitute, that is, a person

appointed to act in the place of another. Surrogacy means the process of

carrying and delivering a child for another person.5Surrogacy is one of

the methods of assisted reproduction whereby a woman agrees to

become pregnant and delivering a child for others to raise him. She may

be the child’s genetic mother (the more traditional form of surrogacy) or

she may be implanted with an unrelated embryo. Having another woman

bear a child for a couple to rise usually with the male half of the couple

as the genetic father is known in antiquity. In some cases, where parents

wish to have a child biologically related to them, surrogacy is the only

available option. Surrogacy in common parlance refers to a woman (the

surrogate) who agrees to bear a child and subsequently to surrender the

child to be brought up by a person or persons other than herself. It is one

of the most traditional methods/treatment to overcome infertility.

Surrogate literally means “substitute”, referring her to have had

theoretically taken place of the mother, but is not herself borne with the

responsibilities to rear the child. In other words the surrogate hands over

the newborn to the intended parent/parents.6

According to section 2(a) of Assisted Reproductive Technologies

(Regulation) Bill, 2010;“Surrogacy”, means an arrangement in which a

woman agrees to a pregnancy, achieved through assisted reproductive

technology, in which neither of the gametes belong to her or her

4 Fiqh Academy seminar, The Milli Gazette, March2014, available at http://www.milligazette.com/news/10169-fiqh-academy-seminar-concludes (Last visited on September 18,2018)

5 M.P. Chandrika, Surrogacy V/S Adoption: The Law And Rights Of The Children, available at: ijlljs.in/wp-content/uploads/2014/.../Article-on-Adoption-and-Surrogacy-by-M.P.pdf (Last Visited on May 20, 2018)

6 Anu, Pawan Kumar, Deep Inder&Nandini Sharma, “Surrogacy and Women’s Right to Health in India: Issues and Perspective”, 57 IPJH 65 (2013)


75

husband, with the intention to carry it and hand over the child to the

person or persons for whom she is acting as a surrogate.7

The honourable Supreme Court in Baby Manji Yamada v. Union of

India and Anotherdefined Surrogacy as, “arecognized method of

reproduction whereby a woman agrees to become pregnant for the

purposeof gestating and giving birth to a child she will not raise but hand

over to the contracting party.”8

Surrogacy can be classified into different types. Based on the

process it is divided into Genetic or Partial surrogacy and Gestational

also called Full surrogacy. In Genetic surrogacy, the surrogate carries the

pregnancy to term, and upon birth, gives the baby away to the soliciting

couple. In this case, the child will have the rearing father as the

biological father, a rearing mother, and a biological/ birth mother.9

Surrogacy can also be classified according to whether or not money

is a concern. Where payment is involved, depending on the sort of

payment, and to whom it is made, one can envisage at least three

different possibilities. The first possible situation arises where a woman

agrees to be a surrogate, providing that the commissioning parties will

compensate her for all expenses for the conception and the birth of the

child and any loss of earnings by the surrogate during the period of

confinement. This is “surrogacy with reasonable compensation.”10

The second possibility is where a surrogate may receive payment

besides that which represents a reasonable compensation. This is called

“surrogacy for a fee”.11

The third possibility is where payment may be made to a party

other than the surrogate. An agency may operate on a commercial basis,

arranging surrogacy and charging both surrogates and commissioning

parties to bring them together and for provision of counseling

7 Assisted Reproductive Technologies (Regulation) Bill,2010. 8 AIR 2009 SC 84 9 Hossam E. Fadel, “The Islamic Viewpoint On New Assisted Reproductive

Technologies”, 30 FULJ 149 (2002) 10Test-tube Babies in Islam,Available at http://www.central-

mosque.com/fiqh/test-tube.htm (Last Visited on March 20, 2017) 11 Ibid.

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76

services.This is called “commercial surrogacy”. But it must be kept in

mind that money is not necessarily an important part of surrogacy. For

instance, a sister may bear a child for her infertile sister, and the whole

transaction may involve no payment of money or other rewards. This is

called “surrogacy in principle”. 12

Islamic Concept of Progeny

Islam regards the laws of parentage and progeny as bounding and

unequivocal. Quran says: “He creates what He wills. He bestows male

or female children to whom he wills. He bestows both male and female

children (to some) and He leaves barren whom He wills.”13

In spite of understanding reproduction and fertility a blessing, Islam

also notes that barrenness is a significant hardship. The Quran cites two

examples Abraham and Zakaryyia, who were barren and described how

they longed to have children of their own. “Then did Zakaryyia pray to

his Lord, saying, '0 my Lord! Grant unto me from You a progeny that is

pure, for You are He that hears the Prayers.”14

The method they used to

achieve their goal was to ask God repeatedly and sincerely with humility

and faith. Eventually God answered their prayers. "And the angels gave

Abraham glad tidings of a son endowed with knowledge!"15

But this does not mean that Quran asks the infertile couple only to

pray to overcome this problem. Islam does not restrict a person from

using all lawful means to solve their problem while at the same time

having faith in the Almighty. Thus the infertile couples are directed to

seek cure of their infertility but within the limits made permissible by

Shariah. This direction is also made towards the physicians and such

other people who work for providing healthcare. The discovery of new

methods for the treatment of infertility is therefore an acceptable pursuit;

however it needs to be within the premise set out by Shariah.

However, according to the Council of the Islamic Fiqh Academy

holding its third session, in Amman, Hashemite Kingdom of Jordan,

12 Ibid. 13 The Holy Quran, (Translation by Abdullah Yusuf Ali) at (XLII:49-50). 14 Id at (III:38) 15 Id at (LI:28)


77

from 8 to 13 Safar 1407H (October 11–16, 1986), declared that

surrogacy (the fertilization taking place in-vitro between the male and

female donor from the spouses, and then the fertilized product being

implanted into the womb of a volunteer woman) is Islamically forbidden

and absolutely prohibited due to the consequences of the lineage

confusion and loss of motherhood.16

However, there is no problem if the

product of the husband and the wife taken and then fertilized in-vitro,

and then the fertilized substance is implanted into the womb of the wife.

Further, artificial insemination, by taking the product of the husband and

inserting it in the appropriate place of his wife’s womb, for

fertilization.17

Same was held by International Islamic Fiqh Academy in

the judgement on the genetic treatment provisions.18

Surrogacy under the umbrella of Islamic Law

The Muslim scholars, when making a legal ruling

considersMaqasid al- Shariah or purposes of the Law,Maqasid al-

ShariahareHifz al- Din (Protection of Religion), Hifz al-Nafs (Protection

of Life), Hifz al-Nasl (Protection of Progeny), Hifz al-Aql (Protection of

Mind) and Hifz al- Mal (Protection of Wealth).19

This classification

describes clearly the paramount and basic necessities of human beings.

Therefore these purposes require protection, preservation and promotion.

The topic of surrogacy seeks to answer to the problems arising in respect

of Protection of Progeny or Hifz al-Nasl. The purpose of law that is most

related to the topic of surrogacy is protection of progeny. As Islam

encourages reproduction, it advocates treatment of infertility. Further,

protection of progeny entails care for pregnant women and the health of

16 Al-Kawthari MA, What is the Islamic position on surrogate motherhood? Qibla, available at http://bit.ly/15bACM1 (Last visited on 2018-september,8]

17 See: QararatwatawsiyyatMajma’ al-Fiqh al-Islami, P. 34-35. 18 Suyûtî, el-E�bahve’n-nezâir, Mı sı r 1959, p. 84; �bnNüceym, el-

E�bâhve’n-nezâir, Beyrut 1993, p. 86 19 Sharmin Islam, Ethics of Surrogacy: A Comparative Study of Western

Secular and Islamic Bioethics, available at http://dx.doi.org/10.5915/44-1-5920 (Last Visited on September 3, 2018)

KJLS VOL. VIII

78

the children. It further entails preservation of lineage. Each newborn

should know and be related to both his/her mother and father.20

However, various objections have been raised against surrogacy

from an ethical standpoint. Married couples look to surrogacy when the

wife is physically unable to conceive a child due to some physical

imbalance or a disease or when the wife is just unwilling to carry a baby.

She may have a genetic disease that she is unwilling to pass to her

offspring. She may not want to become pregnant because of her busy

schedule. The couple may choose surrogacy over adoption because the

child will be at least half-related to them (in genetic surrogacy).

Sometimes, unmarried couples look for a surrogate mother although the

practice is not very common. Similarly, this practice is open for a single

man willing to be a father or to a homosexual couples who want to have

a child.

Hiring a ‘womb’ or a surrogate mother for procreation is a very

recent phenomenon that contemporary jurists have to handle. As a result

children become a commodity and the process of procreation a business

enterprise (as has happened in India). There are several objections to

surrogacy from an ethical standpoint as well. The primary objection is

that it results in the commodification of motherhood.21

Motherhood is

reduced from a blessing to a price. Islamic bioethics cannot accept this

practice because surrogacy is a clear form of using donor sperm, a

foreign element, in the womb of a woman which results in the mixing of

lineage. 22

Islam strictly adheres to the rule of paternity and legitimacy of

a child and discourages the intermixing of genes. What is required is that

a legitimate child must be biologically related to the legally wedded

couple and born after the six months of their valid marriage.

G. I. Serour, Professor of Obstetrics and Gynecology, and director

of the International Islamic Centre for Population Studies and Research,

20 Ibid. 21 Supra note 8 at 154. 18 Mahee M. Hathout, “Surrogacy: An Islamic Perspective”, 21 JIMA, 106

(1989)


79

Al- Azhar University, Cairo, Egypt, opines: “The basic concept of Islam

is to avoid mixing genes, as Islam enjoins the purity of genes and

heredity. It deems that each child should relate to a known father and

mother. Since marriage is a contract between the wife and the husband

during the span of their marriage, no third party intrudes into the marital

functions of sex and procreation. A third party is not acceptable, whether

providing an egg, a sperm, or a uterus. Therefore, sperm donation, egg

donation, and surrogacy are not allowed in Islam.”23

Mufti Sheikh Ahmad Kutty, an Islamic scholar, is of the opinion

that the introduction of male sperm into the uterus of a woman to whom

he is not married transgresses the bounds of Allah. In view of the term

‘transgressing the bounds of Allah, he mentions the following verses of

the Holy Quran: “and who are mindful of their chastity, [not giving way

to their desires] with any but their spouses or what their right hands

possess”: for then, behold, they are free of all blame, whereas such as

seek to go beyond that [limit] are truly transgressors.”24

Muslim scholars are of the view that it is illegal and immoral to

introduce into a woman the sperm of any man other than her husband.

The formation of the embryo outside the human body can only be

permissible conditioned to certain strict terms say for example where the

sperm belongs to that of a husband and the process of its introduction in

a woman’s body is conducted by her husband etc.. According their view

it shall be haram (illegal) to form the embryo by the fusion of woman’s

ovum with the sperm of a man other than her husband. It is therefore not

lawful to implant into a woman an embryo developed in a haram way.

Consequently, it is quite obvious that it is haram to introduce sperm or

embryo into an unmarried woman.

Therefore, it is incumbent to note that if the product/off-spring is

illegal, the means of acquiring the product is also illegal. The group of

scholars which argue that surrogacy is illegal tailors it as akin to

23 Serour G.I., Reproductive choice: a Muslim perspective, available at http://bit.ly/ZJxwXr (last visited on April 30, 2017)

24 Kutty A, Does Islam Allow ‘Surrogate Motherhood’? , available athttp://bit.ly/ZJv6bp(last visited on April 30, 2017)

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zina(illegal sex) since the surrogate is carrying the fertilized egg of

someone who is not her legal husband. The child produced therefore has

no lineage through legal marriage and will have to be considered as

illegitimate.

Another argument advanced by the scholars is a tradition

whereRuwayfiibnThabit al-Ansari (Allah be pleased with him) narrates

that the Prophet Mohammad (P.B.U.H) said on the day Battle of

Hunayn: “It is unlawful for a man who believes in Allah and the last day

that he water the plant of another.”25

The meaning of “watering the plant

of another”, the scholars claim, is to introduce one’s sperm into the

womb of another person’s wife. They also argue, backed by rational

arguments that such act of inserting into another woman other than his

wife amount to zinaor unlawful sexual intercourse. The argument then is

that as watering the plant of another into a strange woman is zina, in this

case surrogate mother amounts to zina, and is to be declared unlawful.26

While accepting such reasoning it should be kept in mind that if for the

sake of argument adhering to strict sense it is stated that it doesn’t fulfill

the essentials to be said to be a zina;Islamic Law not only prohibits from

zinabut also to the things leading to it or relating to it. As it is clearly

mentioned in the Quran, “And (do) not go near adultery. Indeed, it is an

immorality and (an) evil way.”27

However, some contemporary jurists opine that surrogate parenting

will be lawful where the surrogate mother is the second wife of the same

husband. But the divergence of opinion on this point can be aptly put

forward based on the role of fertilization in the procreation process as

mentioned by Imam Ghazaliwho is of the opinion that, fertilization is the

essential factor in procreation and as such disturbing it will be a crime.28

25 SamiaMaqboolNiazi, “Islamic Law and the Surrogate Mother”, 1 ILR 29 (2014)

26 Ibid. 27 Supra note 12 at XVII:32 28 Nasirudeen Mohammed, A Critical Analysis Of Artificial Human

Reproduction: An Islamic Law Perspective (2012)(Unpublished Dissertation, Department Of Islamic Law, Faculty Of Law, Ahmadu Bello University, Zaria)


81

Furthermore, it is argued, that since the biological mother has a

genuine stake in the product, there is an overwhelmingly high

probability for emotional and legal confrontation between the two

“mothers” (intending and surrogate). Law, by definition, aims to remove

potential disputes among human beings. Law is not legislated to increase

the possibility of dispute. As it is quite apparent from certain cases of

legal dispute between biological and surrogate mothers, no law has been

able to quash the probability of dispute.29

The Quran points out and appears as the most compelling evidence

supporting the view of the afore-mentioned group. Quran provides in

Surah Al-Mujadalah“…their mothers are only those who conceived them

and gave birth to them (waladna hum).”30

The Arabic verb “walada” is used for the whole process of

begetting (wiladah) – from conception to delivery. It does not only refer

to the act of carrying (hamlin Arabic) and giving birth (wad’).31

Thus,

the above mentioned verse categorically denies any rights of

motherhood to the surrogate ‘mother’. It is also argued that the harms of

confusion and dispute far outweigh the benefit of offering someone a

child. The child will be a source of perpetual stress for all parties

involved which will invariably cause harm to the child also. “Harm is to

be avoided before benefit is derived” is a well-established maxim in

Islamic law.32

Some Muslims argue for the permissibility of surrogacy in Islam by

resorting to Qiyas. However, rulings based on Qiyas could be unreliable

because the current issues of medicine are drastically different in nature

and context to be analogous. Another group of scholars base their claim

on secondary considerations. This group prioritizes the preservation of

human species as one of its primary objectives (maqasid).33

29 Supra note 15. 30 Supra note 7 at (LVIII:2) 31 Supra note 13 at 106 32 Hisham M. Ramadan, Understanding Islamic Law: From Classical to

Contemporary, (Alta Mira Press, United Kingdom, 1 edn.,2006) 33 Supra note 15.

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Thus,accordingtotheirassertion, the infertile married couple must be

permitted to make use of every solution at their disposal to overcome

this frailty of not having an off-spring. Therefore if surrogacy is one

method available it should be allowed on the principle of Maslaha

(public interest). They also hold the view that the gestational surrogacy

(surrogate carrying the embryo of the genetic parents) can be considered

as same as an incubator by saying that she is merely renting her womb;

and there is also no confusion of the lineage as the biological parents are

already confirmed. Some also assert it to be equivalent to a foster

mother, wet nurse which is an acceptable practice. Islam permits

Muslims to have their children below the age of two years breastfed by

women other than its own mother.34

If that is done, then the child would

be like the child of the wet nurse. This means that, if the wet nurse has

her own biological children, then the child she breastfed would not

legally be permitted to marry any of her own biological children.

The veto to such a justification is that it fails to address the verse in

Surah al-Mujadalahwhich defines who is a mother and who is not. The

verse is a primary and most important source of Islamic law and

provides conclusive evidence regarding the definition of motherhood as

one who both conceives and gives birth. Since neither the biological

mother nor the surrogate has comprehensively fulfilled the definition of

motherhood, so defined in the verse, Islamic law will not be able to

determine who the mother is. The verse cannot be simply discarded by

secondary legal considerations such as Maslaha. That would be

analogous to saying that since wine has some benefits (Maslaha) for

human beings, the Quranicverses that prohibit the drinking of wine

should be discarded because of that Maslaha.35

Furthermore, the idea of hiring someone to breast feed is absurd as

that happens only after the mother gives birth where there is no

confusion as to who the mother is.The foster mother provides the basic

essential nourishment to the already born child, while the surrogate

34 Supra note 1 at 123. 35 Supra note 15.


83

mother carries the unformed child to term and literally gives birth to it

and there is a huge difference between the two.

Another aspect of the discussion is the legality of the surrogacy

contracts. In Islamic law, contract to be a valid one must be lawful in its

essence and content. It must involve only things recognized as legal by

Islamic law. Thus, In Islamic law surrogate parenting contract is

essentially and originally illegal and void. This position may be clarified

by pointing out that; a sale contract would be legal only if it involves

such transaction that is permissible in terms of Islamic law. For example,

no transaction involving the sale or purchase of alcohol would be lawful

or any agreement of killing a human being. In the same manner, the

contract between the married couple and the surrogate mother is invalid

in the sense that firstly, it is a contract which stipulates the sale of a free

person and the body womb of the surrogate mother and secondly, it

involves an element of adulterous implantation of the fertilized egg of

the wife.36

It can also be said that Surrogacy is definitely not allowed in Islam

due to the fact that many evils may arise from this procedure, which can

be listed as follows:

1. Unmarried women could be tempted into 'renting' their wombs

for monetary benefits, which would, in turn, undermine the very

institution of marriage and family life.

2. In order to relieve themselves of the agony of childbirth, married

women could be wheedled to resort to this technique. Islam abhors such

action.Since pregnancy cannot be regarded as a burden, but in fact it is a

blessing, a woman who passes away whilst in the process of delivering,

is given the status of a martyr.

3. A Transvaal surrogate grandmother gave birth to her daughter's

In Vitro Fertility triplets on October 1987 in South Africa. Can Pat

Anthony's (surrogate mother) action in carrying the children of her

biological daughter, Karen, be morally justified or not is another

question but it gave birth to the other legal and social issues as well. In

36 Supra note 24 at 68.

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doing so, she has implanted the sperm of her son-in-law into her womb.

Biologically, the surrogate children she gave birth to, would become her

daughter, Karen's, brothers and sisters, and at the same time, would be

legally regarded as Karen's children. Karen in turn would thus be sharing

two types of relationship with the same children.37

The Shiite Concept

The Shiite school of thought is comparatively different from the

afore-discussed Sunni school.Initially, most of the Shiite religious

leaders supported the Sunni views that third-party donations are

forbidden. However, in 1999, Ayatollah Khamanei, the Supreme

Jurisprudent of the Shias in Iran, issued a fatwa permitting a wider use of

donor technologies. He ruled that egg, sperm, and gamete donation and

surrogacy are allowed under certain conditions. For example, egg

donation is allowed as long as the husband marries the egg donor

temporarily, thereby ensuring that all three parties are married.38

In other

words, Shiite authorities (grand Ayatollahs) regard surrogacy as

permitted only for legally married infertile couples, as a treatment for

their infertility. These authorities do not conform to the condemnation of

the practice, though a minority among the Shiite authorities regard it as

forbidden (haram).

Among the first group, one (Grand Ayatollah Hossein Ali

Montazeri) permitted surrogacy, provided, that the surrogate mother is

not married. On the question of payment to the surrogate, most

authorities are agreeable. According to them the embryo is not similar to

a sperm and therefore its introducing in a surrogate is not considered

same as introducing the sperm to a man to whom she is not married.

Thus they consider a surrogate mother to be equivalent to a wet nurse

and therefore see no sin in this practice.39

37 Surrogacy, available on http://www.beautifulislam.net /family/ surrogacy. htm (Last visited on May 15, 2017)

38 Supra note 3 at 58. 39 K. Aramesh, Iran’s Experiment with Surrogate Motherhood: An Islamic

View and Ethical Concerns, 35 JME, 320-322 (2009)


85

This view is somewhat consistent to the jurisprudential principle

called “isalat-ol-ibaha”, according to which everything should be

considered allowed unless it is expressly forbidden by the Holy Quran or

Sunnah. On the aspect of motherhood, most religious authorities of the

Shiite school who regard surrogacy as permissible consider the genetic

or intended mother as actual mother such as for the purpose of

inheritance. On the other hand few of the authorities regard such

children to have two mothers. 40

Conclusion

For every couple procreation of children is a dream as well as an

object of the marriage. Having the young loved ones makes the family

picture complete. For some, the inability to have the childis heart-

breaking and there are much sociological and biological havoc

associated with it. As far as the Islamic Law is concerned it does not

restrict a person from using all lawful means to solve their problem.

They are directed to seek cure but within the limits permissible by

Shariah.

Though the concept of Surrogacy is gaining all the attention and

people are turning towards it but after discussing all the aspects of

Islamic law with regard to it, we can say that it is considered not to be

within the premise set out by Shariah. Firstly, it reduces the

‘motherhood’ to a value of price. Secondly, it is considered immoral and

illegal to introduce sperm of any other person except her husband.

Thirdly, the basic concept of Islam is to avoid the mixing of genes.

Lastly and most importantly, Quran clearlymentions that a mother is one

who conceives and gave birth to a child. There is only one mother in

Islam i.e. the natural mother.

Islam not only allows but also encourages married couples to seek

treatment of infertility, including the use of ARTs. However, there are

certain limits exist to it, which cannot be disregarded. The Islamic

principles that identify these limits are 1) a valid marriage contract; 2)

preservation of lineage including adopted offspring; 3) surrogacy is

40 Ibid.

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prohibited and the "birth mother" is the mother; and 4) gametes are not

to be donated. The stand of the Islamic law with regard to the concept of

Surrogacy will again bring the personal laws within the range of the

cannon shots from the supporters of the Uniform Civil Code (which in

itself is a distant dream at present) like it has been in the past.

Applicability of AFSPA in India: A Humanitarian Perspective

Shazia Ahad Bhat

*

Abstract

Humanitarian law may truly claim to be a universal body of law.

Serious violations of humanitarian law are committed on a daily basis in

the dozens of conflicts now taking place around the world. Violations

nevertheless do occur, and will continue to do so until an end is put to

impunity. The humanitarian law applies in areas where AFSPA operates

depending on the intensity of violence in areas designated as ‘disturbed’

The AFSPA has been very controversial since its inception due to an

alleged illegality and contravention of International Law. The prolonged

application of this Act has not only institutionalized militarism and a

climate of impunity but has also alienated the public and fuelled a cycle

of violence, increasing insurgency rather than dampening it. It is time

we realize that the issue of human rights is not trivialized as a mere

domestic issue isolated from the rest of the world. It has assumed an

international dimension, and concerns the international community as a

whole in the emerging new world order in which violation of human

rights in any remote corner of the globe is viewed as a challenge before

humanity. In the present research paper an attempt has been made by

the author to deeply analyze the provisions of AFSPA in the light of

humanitarian law so as to perceive the true nature of the Actand its

impact in humanitarian perspective, when implemented practically.

Keywords: Humanitarian law, AFSPA, Violence, Insurgency,

International law, Human Rights.

I. Introduction

*Lecturer Kashmir Law College, Nowshera Srinagar. E-mail: [email protected]

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Human rights and humanitarian law form an integral part of

international law with both types of law designed to protect individual,

as well as, collective fundamental rights and freedoms. Generally

speaking human rights are regarded as those fundamental and

inalienable rights which are essential for the life as a human being. They

are those moral rights, which are owed to each man and women by every

man or woman by reason of being human. These are distinguished from

other moral rights, in possessing the inherent characteristics of

universality, individuality, paramountcy, practicability and

enforceability1. On the other hand, Humanitarian law is regarded as that

branch of international law which provides protection to human beings

from the consequences of armed conflicts and it may, therefore, be

defined as those customary and treaty rules which are meant to resolve

matters of humanitarian concern arising from armed conflicts whether of

an international2 or non- international nature

3. The concept of the

protection of human rights has emerged originally in the field of

domestic legislations, as in the Magna Carta in England4, the Bill of

1 Prof Bilal, N. M, “International Human Rights Law and International Humanitarian Law –Convergence and Concerns” Kashmir university law review 73(2005).

2 “International armed conflicts” may mean an armed clash between two or more states or armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self determinationavailable at: https://www.icrc.org/en/doc/resources/documents/article/other/armed-conflict-article-170308.htm.

3“Non-international armed conflicts”, as those taking place within the territory of a State and in which the armed forces of no other State participate. One example is protracted armed violence between the armed forces of a State and those they regard as dissident, rebel or insurgent groups. Another is fighting between two or more armed groups within a State but not necessarily involving government troops; protracted armed violence is again a conditionavailable at: https://www.icrc.org/en/doc/resources/documents/article/other/armed-conflict-article-170308.htm.

4 The “Magna Carta”, also known as the Great Charter, of 1215 is the most significant constitutional document of all human history. The main theme of it was protection against the arbitrary acts by the king. The 63 clauses of the Charter guaranteed basic civic and legal rights to citizens, and protected the barons from unjust taxes. King John of England granted the Magna Carta to the English barons on 15TH Jun. 1215. The king was

APPLICABILITY OF AFSPA IN INDIA; A HUMANITARIAN PERSPECTIVE

89

Rights in the United States of America5 and the declaration of the rights

of men in France6. Modern human rights can be categorized into three

generations of rights:

The first generation rights are concerned with the civil and

political rights of the individual or the liberty oriented rights.

The second-generation rights are those which are security

oriented.

The third generation of human rights includes the

environmental and developmental rights. They are relatively of recent

origin. They have evolved in response to various new concerns over

which international consensus has emerged in recent years.

Humanitarian law is principally based on the four Geneva

Conventions of 19497

and the two protocols of 19778

relating to

compelled to grant the Charter, because the barons refused to pay heavy taxes unless the king signed the Charteravailable at:https://rightsinfo.org/magna-carta-rights-today/

5The U.S. Constitution was enacted on 17th Sep. 1787. The most conspicuous defect of the original Constitution was the omission of a Bill of Rights concerning private rights and personal liberties. Madison therefore proposed as many as twelve amendments in the form of Bill of Rights. Ten of these were ratified by the State legislatures. These ten Constitutional amendments came to be known as the Bill of Rights. The overall theme of the Bill of Rights is that the citizen be protected against the abuse of power by the officials of the Statesavailable at: https://www.history.com/topics/united-states-constitution/constitution.

6On 4th Aug. 1789, the National Assembly proclaimed the Rights of Man and of the Citizens. The Rights were formulated in 17Articles.The Declaration of the Rights of Man and of the Citizen has far reaching importance not only in the history of France but also in the history of Europe and mankind. The declaration served as the death warrant for the old regime and introduced a new social and political order, founded on the noble and glittering principles. Further the declaration served as the basis for many Constitutions, framed in different countries, where the framers gave top priority to human rights available at:https://alphahistory.com/frenchrevolution/declaration-rights-of-man-and-citizen/

7 The singular term “Geneva Convention” denotes the agreements of 1949, negotiated in the aftermath of the Second World War 1939–45, which updated the terms of the first three treaties (1864, 1906, 1929), and added a fourth treaty. The articles of the Fourth Geneva Convention, 1949 extensively defined the basic, wartime rights of prisoners (civil and military); established protections for the wounded; and establish

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international and non international armed conflict provided by

humanitarian law principles9. Humanitarian law applies specifically to

armed conflict situations, which would ordinarily qualify as public

emergencies. However, since, armed conflict situations would typically

qualify as public emergencies as defined by Art.4 of ICCPR10

, it is

possible and likely that in such situations restrictions and derogations to

human rights may be introduced by states, it is therefore likely that the

highest level of protection to individuals in situations of armed conflict

be provided by humanitarian law provisions.General principles of law

recognized by civilized nations11

may fi rst be understood as those

protections for the civilians in and around a war zone. The treaties of 1949 were ratified, in whole or with reservations, by 196 countriesavailable at: https://www.icrc.org/en/doc/war-and-law/treaties-customary-law/geneva-conventions/overview-geneva-conventions.htm.

8 The Geneva Conventions and their Additional Protocols are at the core of international humanitarian law, the body of international law that regulates the conduct of armed conflict and seeks to limit its effects. They specifically protect people who are not taking part in the hostilities (civilians, health workers and aid workers) and those who are no longer participating in the hostilities, such as wounded, sick and shipwrecked soldiers and prisoners of waravailable at: https://www.icrc.org/en/doc/war-and-law/treaties-customary-law/geneva-conventions/overview-geneva-conventions.htm.

9Training Manual on Human Rights Monitoring, professional training Series No. 7, United Nations, New York and Geneva, 29(2001) available at: https://www.ohchr.org/Documents/Publications/training7Introen.pdf.

10In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. No derogation from Articles 6, 7, 8 (Para. I and 2), 11, 15, 16 and 18 may be made under this provision. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.

11 Referred to in Art 38(1) (c) of the Statute of the International Court of Justice as one of the sources of international law.


91

principles of domestic law which are common to all legal orders. Such

principles, e.g., good faith and proportionality, which have also become

customary law and have been Codifi ed, nevertheless also apply in

armed confl icts and can be useful in supplementing and implementing

humanitarian law. Thus, more important for humanitarian law is its

general principles, e.g., the principle of distinction between civilians and

combatants, civilian objects and military objectives, the principle of

necessity, and the prohibition on causing unnecessary suffering. These

principles, however, are not based on a separate source of international

law, but on treaties, custom and general principles of law. Particularly

important examples of the general principles of humanitarian law are the

“elementary considerations of humanity” and the so-called “Martens

clause12

”, which prescribes that:

In cases not covered by treaties and traditional customary

international law, civilians and combatants remain under the protection

and authority of the principles of international law derived from

established custom, from the principles of humanity and from the

dictates of public conscience. It is recognized that this clause itself is

part of customary international law13

.

The clause constitutes a “legal safety net”. Where there are

loopholes in the rules of positive law, says the martens clauses, then a

solution based on basic humanitarian principles must be found14

.

12 The “Martens Clause” was introduced into the preamble to the 1899 Hague Convention II – Laws and Customs of War on Land.The clause did not appear in the Geneva Conventions of 1949, but it was included in the additional protocols of 1977. It is in Article 1 paragraph 2 of Protocol I (which covers international conflicts) and the fourth paragraph of the preamble to Protocol II (which covers non-international conflicts) available at: https://en.wikipedia.org/wiki/Martens_Clause

13 Marco Sassòli, Antoine A. Bouvier, Anne Quintin, How Does Law Protect In War? Cases, Documents and Teaching Materials on Contemporary Practice in International Humanitarian Law, ICRC Vol. I, Ed. 3rd 21available at: http://www.icrc.org/eng/assets/files/publications/icrc-0739-part-i.pdf (Last visited on Feb.15, 2013).

14 Hans-Peter Gasser, “21st Annual Human Rights and People’s Diplomacy Training 5: A Training Program For Peoples of the Asia-Pacific Region affiliated with the Faculty of Law at the University of New South Wales” 4(23 Sep.2011) available at:

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II. International Bill of Human Rights

The United Nations Charter contains provisions for the promotion

and protection of human rights. The importance of the Charter lies in the

fact that it is the first official document in which the use of ‘human

rights’ is, for the first time traceable and which also recognized the

respect for fundamental freedom15

.

The main objective of the UN isto save succeeding generations from

the scourge of war and to re-affirm faith in fundamental human rights.

Article 1 of the Charter states that, one of the aims of the United Nations

is to achieve international cooperation in promoting and encouraging

respect for human rights and for fundamental freedoms for all without

distinction as to race, sex, language or religion.

Even before India had attained independence, it signed the Charter

on Oct. 30, 1945 and that shows its commitment to the cause of human

rights16

. Efforts were made during the immediate postwar period,

especially at the United Nations level, which focused mainly on standard

setting, the first achievement of which was the Universal Declaration of

Human Rights adopted on 10th Dec. 1948. The other two being the

International Covenant on Civil and Political Rights and The

International Covenant on Economic, Social and Cultural Rights17

and

the optional protocol to the former. The International Covenant on Civil

and Political Rights and the International Covenant on Economic, Social

and Cultural Rights and the provisions contained in the Universal

Declaration of Human Rights are multilateral treaties. The two

International Covenants, together with the Universal Declaration and the

Optional Protocols, comprise the International Bill of Human Rights.

http://www.dtp.unsw.edu.au/documents/Manual9InternationalHumanitarianLaw-HansPeterGasser.pdf (last visited on Dec. 23, 2012).

15 Human rights: Nature and constituents, 7available at: http://www.mu.ac.in/myweb_test/SYBA%20Study%20Material/fc.pdf (Last visited on Nov.21, 2012).

16 Justice Shri K. G. Balakrishnan, Journal of the National Human Rights Commission India 40(Vol .11 2012) available at: http://www.nhrc.nic.in/Documents/Publications/nhrc_journal_2012.pdf (Last visited on Apr. 23, 2013).

17 Supra note 1 at 75.


93

The International Bill of Human Rights represents a milestone in the

history of human rights. It is a modern Magna Carta of human rights18

.

In Mir Mohammed Ali v. State of A.P and another19

Court said:

The International Bill of Human Rights comprising Universal

Declaration of Human Rights, International Covenant on Economic,

Social and Cultural Rights and International Covenant on Civil and

Political Rights also deal with the rights of the offenders. India is a

signatory to the U.N. Declaration, as well as, two International

Covenants on social rights and political rights. Articles 3, 5, 9, 11 and

29 of U.N. Declaration guarantees humane treatment of persons

charged with penal offences and ensure public trial of the offenders at

which an offender will be given all guarantees necessary for the defence.

Articles 7 and 10 of the International Covenant on Civil and Political

Rights obligate the signatory States to treat the accused and convict with

humanity and respect for the inherent dignity of human persons.

1. Universal Declaration of Human Rights, 1948

The Universal Declaration of Human Rights was adopted by the

General Assembly of the United Nations on 10th Dec. 1948.The

Declaration consists of thirty Articles and covers civil, political,

economic, social and cultural rights for all men, women and children.

The declaration, however, is not a legally binding document. It is an

ideal for all mankind. UDHR was adopted by the U.N. General

Assembly and many of these rights were given a concrete shape in our

domestic law by incorporating them in Part III and Part IV of the

Constitution as Fundamental Rights and Directive Principles of State

Policy.The Universal Declaration of Human Rights defines human rights

as “rights derived from the inherent dignity of the human person.”

Human rights when guaranteed by a written Constitution are known as

“Fundamental Rights” because a written Constitution is the fundamental

law of the state.

18 Henry J. Steiner, Philip Alston, and Ryan Goodman, International Human Rights in Context: Law, Politics, Morals. 3thEdition. Oxford University Press, 2008, 1560pp available at: https://www.cpp.edu/~jet/Documents/JET/Jet9/Zhu143-144.pdf.

19 Cri LJ 4058 (2000)5 ALD 51.

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94

Art.14 of the Constitution of India is identical to the Art.7 of the

UDHR which lays emphasis on equality and says that all are equal

before the law and is entitled without any discrimination to equal

protection of the law.

In Namibia case20

, (south West Africa) Judge Ammoun in his

separate opinion has stated that:

One right which must certainly be considered a pre existing binding

customary norm which the Universal Declaration of Human Rights

codified is the right to equality, which by common consent has ever since

the remotest times been deemed inherent in human nature.

Articles 3 and 9 of UDHR secure life and liberty of a person and

say that everyone has the right to life, liberty and security of person, and

that no one shall be subjected to arbitrary arrest, detention or exile.

Similar guarantee is enshrined in Articles 21 and22 of the Constitution.

Art.21 says that no person shall be deprived of his life or personal liberty

except according to procedure established by law. The content and scope

of this art. has been expanded by judicial decisions rendered in the year

1978 by the Supreme Court21

and the view taken therein is that the law

laying down the procedure for depriving a person of his life or personal

liberty must be just, fair and reasonable and not arbitrary, fanciful and

whimsical, otherwise, the law will be ultra vires.

In case of State of Andhra Pradesh v. Challa Ramakrishna

Reddy22

, the Apex Court held:

Right to life is one of the basic human rights. It is guaranteed to

every person by Art.21 of the Constitution and not even the State has the

authority to violate that right. A prisoner, be he a convict or under-trial

or a detenu, does not cease to be a human being. Even when lodged in

the jail, he continues to enjoy all his fundamental rights including the

right to life guaranteed to him under the Constitution. On being

convicted of crime and deprived of their liberty in accordance with the

20 ICJ reports 1971, p. 16 at Para. 76.

21 Maneka Gandhi v. Union of India, AIR 1978 SC 597.

22 AIR 2000 SC 2083.


95

procedure established by law, prisoners still retain the residue of

Constitutional rights.

In Mohammed Aynuddin alias Miyam v. State of Andhra

Pradesh23

, the Apex Court has held that:

The State is vicariously liable for negligence of its officers. From

the aforesaid enunciation of law, it is quite vivid that the law in this

sphere has taken a marathon speed and marched ahead. In a democratic

welfare set up, a citizen has a right to lead a life as permitted within the

Constitutional framework and the State cannot do anything that would

curtail or abridge the protected rights of a citizen. A citizen has a right

to live with dignity. It has been emphasized time and again; the right to

live does not mean to live a life which is sans substance. Thus, the

substance of life has become the substratum of Art.21 of the

Constitution. The State has an obligation under law to take care of the

health of its citizens and cannot be allowed to do anything which would

jeopardize the same.

Articles 5 & 12 of the UDHR mandate that no one shall be

subjected to torture or to cruel, inhuman or degrading treatment or

punishment and that no one shall be subjected to arbitrary interference

with his privacy, family or home.

In Barcelona traction case24

The international Court of justice has regarded protection from

slavery as included in the basic rights of the human person which give

rise to obligations which states owe ergaomnes.

In Filartiga v. Pena Irala25

,

The issue was whether torture was a breach of international law.

The United States Court of appeals for the second circuit found that

there is at present no dissent from the view that guarantees include, at a

bare minimum, the right to be free from torture.

23 AIR 2000 SC 2511. 24 Barcelona Traction, Light and Power Company, Limited

(Belgium v. Spain) ICJ Reports, 5 Feb.1970 p. 32 251980 630 F 2nd 896, 19 ILM 585, 605 (1980).

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Art.8 of UDHR lays down that everyone has the right to an

effective remedy by the competent national tribunals for acts violating

the fundamental rights granted to him by the Constitution or by law. Art.

32 of the Constitution of India guarantee the right for everyone to

approach the Supreme Court of India in the event of violation of his

fundamental rights and Art. 226 empower the High Courts to issue

directions, orders or writs including writs of Habeas Corpus for

enforcement of any fundamental right or for any other purpose. The

District courts are also empowered to grant relief in the event of invasion

of such of the rights which come within their domain. Clause 2 of Art.11

of UDHR provides that no one shall be held guilty of any penal offence

on account of any act or omission which did not constitute a penal

offence under national or international law at the time when it was

committed, nor shall a heavier penalty be imposed than the one that was

applicable at the time when the penal offence was committed. Exactly

similar guarantee is enshrined in clause 1 of Art.20 of the Constitution of

India. UDHR is the primary international articulation of the fundamental

and inalienable rights of all members of the human family and represents

the first comprehensive agreement among nations as to the specific

rights and freedoms of all human beings.

In Keshvananda Bharti v. State of Kerala26

The Supreme Court observed that the UDHR may not be a legally

binding instrument but it shows how India understood the nature of

human rights at the time the Constitution was adopted.

In Jolly George Verghese v. Bank of Cochin27

The Supreme Court has stated the declaration cannot create a

binding set of rules and that even international treaties may at best

inform judicial institutions and inspire legislative actions.

In Kishore Chand v. State of Himachal Pradesh28

Constitutional interpretation in India has strongly influenced by the

declaration.

26AIR 1973 SC 1461 at 1510. 27 AIR 1980 SC 474. 28 (1991) 1 S.C.J 68, 76.


97

In Chairman, Railway Board and others v. MrsChandrima Das29

The Supreme Court observed that the declaration has the

international recognition as the moral code of conduct having been

adopted by the General Assembly of the United Nations”.

2. International Covenants

The Universal Declaration of Human Rights, 1948 was not a legally

binding document. It lacked enforcements. This deficiency was sought

to be removed by the U.N. General assembly by adopting in Dec. 1966,

the two Covenants, viz, International Covenant on Civil and Political

Rights and International Covenant on Economic, Social and Cultural

Rights.

a. International Covenant on Civil and Political Rights

The Covenant on Civil and Political Rights establishes an

international minimum standard of conduct for all state parties to it,

ensuring the right of self-determination, legal redress, equality, life,

liberty, freedom of movement, fair , public, and speedy trial of criminal

charges, privacy, freedom of expression, thought, conscience and

religion, peaceful assembly, freedom of association, but forbidding

torture, cruel, inhuman and degrading treatment or punishment, slavery,

arbitrary arrest, double jeopardy , and imprisonment for debt. On the

universal level, under the International Covenant on Civil and Political

Rights a Party undertakes: To respect and to ensure to all individuals

within its territory and subject to its jurisdiction the rights recognized.

This wording and the negotiating history lean towards

understanding territory and jurisdiction as cumulative conditions.

Several States, therefore, deny that the Covenant is applicable

extraterritorially. The International Court of Justice, the United Nations

Human Rights Committee and other States are, however, of the opinion

that the Covenant applies equally in occupied territory. While acceding

to the Covenant on Civil and Political Right, India has made certain

reservation. These reservations, called “Declaration”, restrict the

application of the Covenant in our country.

29 AIR 2000 SC 988: (2000)2 SCC 465.

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98

The following are the declaration with regard to the Covenant of

Civil and Political Right:

1.Right of Self-Determination: Our country cannot allow the right

of self-determination to its people. This is because doing so would result

in the secession of parts of the country of the Union of India.

2. Right to freedom:Various rights to freedom have been provided

by Art.19 of the Constitution. These right are subject to restriction laid

down in Paras (2), (3), (4) and (5) of the same art. Similar right has also

been recognized in the Covenant and the Covenant too lays down

restriction. Restrictions in the Covenant are different from those laid

down in the Constitution.

In Director General, Directorate v. AnandPatwardhan& Anr30

the

court held:

The Constitution of India guarantees everyone the right to freedom

of expression. India is also a party to the International Covenant

on Civil and Political Rights and therefore bound to respect the right to

freedom of expression guaranteed by Art.19 thereof, which states:

Everyone shall have the right to hold opinions without interference.

Everyone shall have the right to freedom of expression; this right shall

include freedom to seek, receive and impart information and ideas of all

kinds regardless of frontiers, either orally, in writing or in print, in the

form of art, or through any other media of his choice.

3. Protection against arbitrary arrest and detention: With regard to

this right, provisions of Art.9 of the Covenant are slightly different from

those laid down by Art.22 of the Constitution. For example, in India, this

right is not available to an enemy alien or to a person arrested or

detained under a preventive detention law. Further, by Article 9 (5), the

Covenant provides an enforceable right to compensation to people who

claim to be victims of unlawful arrest or detention. But in the

Constitution there is no provision for enforceable compensation.

However, Courts in India have held that the suit for compensation

against the State is maintained in such cases.

30AIR 2006 SC 3346: (2006)8 SCC 433.


99

In D. K. Basu v. State of W.B31

the Apex Court in paragraphs 42 to

45 held as under:

Art.9 (5) of the International Covenant on Civil and Political

Rights, 1996 provides that "anyone who has been the victim of unlawful

arrest or detention shall have an enforceable right to compensation. Of

course, the Government of India at the time of its ratification of ICCPR

in 1979 and made a specific reservation to the effect that the Indian

legal system does not recognize a right to compensation for victims of

unlawful arrest or detention and thus did not become a party to the

Covenant. That reservation, however, has now lost its relevance in view

of the law laid down by this Court in a number of cases awarding

compensation for the infringement of the fundamental right to life of a

citizen32

. There is indeed no express provision in the Constitution of

India for grant of compensation for violation of a fundamental right to

life; nonetheless, this Court has judiciously evolved a right to

compensation in cases of established unconstitutional deprivation of

personal liberty or life33

.

4. Right of aliens:Art. 13 of the Covenant lays down several

safeguards with regard to expelling an alien from the territory of India.

Part 3 of the declaration by India provides that the Government of India

reserves its right to apply its laws relating to foreigners.

b. International Covenant on Economic, Social and Cultural

Rights

The Covenant on Economic Social and Cultural Rights

establishes international minimum standards for states to respect, protect

and fulfill economic, social and cultural rights. The covenant also strictly

prohibits discrimination with respect to economic, social and cultural

rights and ensures the equal rights of men and women to the enjoyment

of these rights.

31 AIR 1997 SC 610. 32 See Rudul Shah v. State of J & K, AIR 1983 SC 1086;Sebastiam M.

Hongrayv. Union of India, AIR 1984 SC 1026; Bhim Singh v. State of J & K, AIR, 1986 SC 494.

33 See NilabatiBehera v. State, AIR 1993 SC 1960.

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100

In Christian Medical College v. Christian Medical College34

the

Apex court held:

The International Covenant on Economic, Social and Cultural

Rights, 1966 which is a basic document declaring certain specific

human rights in addition to proclaiming the right to work as a human

right treats equitable conditions of work, prohibition of forced labour,

provision for adequate remuneration, the right to a limitation of work

hours, to rest and leisure, the right to form and join trade unions of

one’s' choice, the right to strike etc. also as human rights.

In Jane Antony, Wife of Antony v. V. M. Siyath, Vellooparambil35

International Covenant on Economic, Social and Cultural rights,

1966 under Art. 2 (2) states that the parties to the present Covenant

undertake to guarantee that the rights enunciated in the present

Covenant will be exercised without discrimination of any kind as to race,

color, sex, language, religion, political or other opinion, national

or social origin, property, birth or other status.

c. Human Rights Treaties

Apart from the two covenants I.e. ICCPR and ICESCR, there are

treaties which create legally binding obligations for states that are party

to them. Treaties constitute the primary source of international law.

These treaties restate general principles of international law or rules of

customary international law, they legally bind all states, including those

that are not party to them. Aside from the U N charter and the

International Bill of Human Rights the most important major specialized

treaties include the following:

1) Convention on the Prevention and Punishment of the Crime of

Genocide, 1948.

2) Convention Relating to the Status of Refugees, 1955.

3) Protocol Relating to the Status of Refugees.

4) International Convention on the Elimination of all Forms of

Racial Discrimination.

34 AIR 1988 SC 37: 1988 SCR (1) 546: (1987) SCC (4) 691. 35 (2008) (4) KLT- 1002.


101

5) Convention on the Elimination of all Forms of Discrimination

against Women, 1979.

6) Convention against Torture and other Cruel, Inhuman or

Degrading Treatment or Punishment, 1984.

7) Convention on the Rights of the Child, 1989.

8) Second Optional Protocol to the ICCPR aiming at the abolition

of death penalty.

In order for a treaty to apply to a particular country, the state i.e. the

country must have ratified or otherwise formally adhered to the treaty.

Some states attach reservations or other limitations on their ratification.

It should be noted that even if a reservation has been asserted, the

reservations may be invalid if it violates the object and purpose of the

treaty. Most regional human rights Conventions clearly state that the

States Parties must secure the rights listed in those Conventions for

everyone within their jurisdiction. This includes occupied territory.

States party to humanitarian law treaties undertake to adopt the

necessary legislative measures to suppress any grave breaches of the

treaties.

Grave breaches comprise some of the most flagrant violations of

humanitarian law. They are listed in the Geneva Conventions and

additional Protocol I, and include willful killing, torture or inhuman

treatment, willfully causing great suffering or serious injury to body or

health, attacks on the civilian population and indiscriminate attacks,

attacks on works and installations containing dangerous forces and non-

defended localities and denial of judicial guarantees. Grave breaches,

such as, these are regarded as war crimes. Human rights treaties, which

continue to apply during armed conflicts, have been interpreted as

providing an obligation on states parties, to prevent or repress human

rights violations carried out by members of criminal groups or

paramilitary groups, where there is no direct state involvement in the

violations. In the American system, this obligation stems from the

requirement to ‘ensure’ the exercise of human rights under Art.1 (1) of

the American Convention on Human Rights, which provides,

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States Parties to this Convention undertake to respect the rights and

freedoms recognized herein and to ensure to all persons subject to their

jurisdiction the free and full exercise of those rights and freedoms36

.

III. Role of International Organizations: Protection of Human

Rights

There are hundreds of NGO’s working at the international level for

the protection of Human Rights. The most renounce among them are the

International League for Human Rights, Amnesty International and

Human Rights Watch. These NGO’s are very active in the protection of

Human rights.

1. International League for Human Rights (ILHR)

This NGO is the oldest organization working in the field of human

rights. It was established in 1942. In U.S.A for defending the rights of

people It interacts with the Government and investigates the cases of the

violation of human rights. The league aims at establishing a just society

in which people can claim and enjoy their fundamental rights. The ILHR

was given consultative status in1947. As a result of this it got the

authority to testify the abuses of human rights before the United Nations

Economic and Social Council.

2. Amnesty International (AI)

This is another world famous NGO working for the protection of

human rights. It was established in 1961. The AI mainly deals with the

five areas viz women’s rights, children rights ending torture and

execution, rights of refugees and rights of prisoners of conscience. At

present the AI is concentrating mainly on controlling the violence

against women and checking the world arms trade. Its main branches are

in London and New York. Amnesty International plays an important

role in shaping human rights norms and standards. It also plays an

important role in upholding human rights as envisaged under the United

Nations Declaration of Human Rights and other human rights

36 Katherine Del Mar, “The Requirement of ‘Belonging’ under International Humanitarian Law” European journal of international law 105-124available at: http://ejil.oxfordjournals.org/content/21/1/105.full (Last visited on Jan. 12, 2013).


103

instruments by pressurizing Governments to sign and ratify the treaties

that embody human rights norms and have worked to increase the use of

the complaint mechanisms under these treaties. It also performs the task

of creating awareness about human rights. Investigation and

documentation by NGOs has been vitally important in bringing human

rights abuses to the attention of the United Nations, the international

community and the public at large37

.

3. Human Rights Watch (HRW)

This NGO was established in New York in 1987. It serves as an

umbrella organization for the U.S. Helsinki watch committee, America

Watch, Asia Watch, Middle East Watch and Africa Watch. It publishes

Human Rights publication Catalogue, quarterly newsletters and Human

Rights world watch reports. It evaluates the human rights practices of

Governments in the light of standards recognized by international laws

and agreements including the Universal Declaration of Human Rights

and the Helsinki Accord. Further it also evaluates the performance of the

U.S. Government in promoting human rights at the international level.

Of course the organization mainly concentrates on evaluating the

treatment of the U.S. Government with refugees and visitors to the U.S.

Non-governmental organizations can contribute to securing

and promoting compliance with the rules of humanitarian law. They may

provide good offices and assist in monitoring, mediating and providing

other assistance in this respect. Previously a person had to show personal

interest associated with a case in order to become a party to it. Supreme

Court of India under the influence of British and American Courts

relaxed this rule. Now even an ordinary public spirited person can come

forward and pursue for implementation of fundamental rights for the

voiceless and helpless segments of society. Thus, we can see in

BanduaMazdoorMukhtiMorcha v. Union of India38

, an NGO comes to

37 Harish Chandra and Priyadarsni Satyam, “Emergency provisions of the Indian constitution and its impact on fundamental human rights” Radix International Journal of Research in Social Science 27 (Vol. 1, Issue 7 Jul. 2012) available at:http://rierc.org/social/paper31.pdf (Last visited on Jan. 23, 2013).

38 AIR 1984 SC 802.

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the rescue of bonded laborers and Supreme Court entertaining its public

interest litigation.

IV. Role of AFSPA and Humanitarian Law: Compare and

Contrast

AFSPA is a law, enacted by the Parliament of India, to meet violent

internal situations created by underground militant outfits to further their

illegal and unconstitutional causes. The law was enacted to provide

necessary powers and legal support to the armed forces for carrying out

proactive operations against the militants in a highly hostile

environment. It is an act empowering armed forces to deal effectively in

disturbed areas. Any area which is declared ‘’disturbed’’ under

Disturbed Areas Act enables armed forces to resort to the provisions of

AFSPA. The AFSPA was basically written to legitimize the presence of

the armed forces in a civilian setting. Many times when the local police

are incapable of dealing with certain problems arising in their respective

regions, the armed forces are deployed. However in order for them to

operate, they need a legal framework to function under the AFSPA.The

humanitarian law applies in areas where AFSPA operates depending on

the intensity of violence in areas designated as ‘disturbed’. The criteria

for the levels of violence that have to be reached for a situation to go

beyond internal disturbance to qualify as an armed conflict for common

Art.3 applicability39

is, that it must necessitate the employment of the

armed forces. The situation must be problematic enough to require the

employment of the higher order of force available to the armed forces.

This implies that the ‘intensity criteria’ must be sufficiently high. The

indicators are:

Number, duration and intensity of military engagements, the

type of weapons and equipment used, numbers of persons and types of

forces involved in the fighting, the number of casualties, the extent of

destruction, and the number of civilians fleeing etc.

Vivek Chadha, “Armed forces special powers act: The Debate, Institute for defence and analyses” Lancer books 81(Nov. 2012) available at: http://idsa.in/system/files/Monograph7.pdf (Last visited on Jan. 12, 2013).


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The AFSPA threshold is taken as ‘internal disturbance’, which

manifestly does not amount to armed conflict. This places such

situations outside the scope of humanitarian laws. However, the AFSPA

in respect of the state of Jammu and Kashmir of 1990, appears to

indicate a higher threshold in its Art.3, specifically, that the disturbed

areas have a ‘disturbed and dangerous condition’ that makes the use of

armed forces in aid of the civil power necessary to prevent:

(a) Activities involve terrorist acts directed towards overawing the

Government as by law established or striking terror in the people

(b) Activities directed towards disclaiming, questioning or

disrupting the Sovereignty and territorial Integrity of India or bringing

about cession of a part of the territory of India or secession of a part of

the territory of India.

The basic idea behind having international law of human rights is to

make states accountable before the international community for their

conduct vis a vis their subject. That is why the whole of the human

rights law exists either in the form of treaties and conventions or in the

form of customary international law, In most of the common law

countries, the practice is that customary international law becomes

applicable within the domestic jurisdiction on its own. The oldest

authority on this point is the famous Paqutte Habana case in which the

American Supreme Court declared that:

The rights based on customary international law will be given effect

and enforced by an American Supreme Court unless they conflict with

any rule of American law40

Same position prevailed in India prior to and after independence.

Art 51 (c) of the Indian Constitution provides that the state shall

endeavor to foster respect for international law and treaty obligations in

the dealings of organized people with another41

. It has been emphasized

that all measures taken by India in order to protect its population against

terrorist activities must be in full conformity with its obligations under

40 Shipowners (P) v. Shipowners (D), (1900) 175 US 677. 41Sheikh Showkat Hussain, “Indian and International Human Rights Law”

Kashmir university law review 95 (2006).

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106

the ICCPR42

. The Committee on the Elimination of Racial

Discrimination is a body responsible for monitoring States parties’

compliance with the ICERD. The ICERD makes provision for regular

State reports to this Committee. Concern for the protection of individual

rights without discrimination on racial, ethnic, tribal, religious or other

grounds must guide the policies of Governments.

V. AFSPA and ICCPR: A Critical Appraisal

If the armed conflict exists, humanitarian law would be applicable.

However, even assuming that such armed conflict exists or will erupt in

“disturbed areas”, it does not exclude the applicability of the ICCPR.In

the case of armed conflict not of an international character person taking

no active part in the hostilities shall in all circumstances be treated

humanely and that violence to life and outrages upon personal dignity of

those persons shall remain prohibited at any time and in any place. This

fundamental clause of humanitarian law is undoubtedly recognized as a

norm of customary international law applicable in all types of armed

conflicts.

1. Compatibility of the AFSPA with Art. 6 of the ICCPR

The right to life is characterized as “supreme” and “basic” includes

both so-called negative and positive obligations for states. The negative

obligation is reflected in the overall prohibition on arbitrary deprivation

of life which is contained in Art.6 (1). Art.6 also specifies that:

The right to life shall be protected by law and therefore implies an

obligation on the part of the State party to the ICCPR to protect the right

to life of every person. Art.6 requires that the law must strictly control

and limit the circumstances in which a person may be deprived of his life

by the authorities of a State.

The provision of the Armed Forces Special Act governing the use

of lethal force effectively gives carte blanche to security forces within

disturbed areas. The Act provides no discernable limitations or

safeguards aimed at the prevention of abuse of discretion by the security

forces involved in maintaining order. There are no requirements, such as

42 Ibid.


107

to use non-lethal force before recourse to firearms are made, which

would guarantee that lethal force is used proportionally and injury is

minimized in so far as possible. In addition, the Act is silent on whether

and how a warning should be given before lethal force is used and which

measures should be taken by the military officers involved to satisfy

themselves that those warnings are received and understood by all

parties concerned. The immunity provision contained in Sec 6 of the

Act makes any such investigation even if it was conducted meaningless

as the officers concerned cannot be heldaccountable. This lack of

adequateinvestigative mechanisms means that victims, their relatives and

the broader public have no access to the truth about what has happened.

This contributes to the climate of impunity that effectively places the

security forces in the disturbed areas above the law, leads to the lack of

public confidence in their actions, and, most importantly, facilitates

arbitrary deprivations of life in violation of Art.6.


Art.7 does not define torture. It has been emphasized that Art.7

protects both the physical and mental integrity of the individual, and

therefore relates not only to acts that cause physical pain but also to acts

that cause mental suffering to the victim. It is the duty of the State party

to afford everyone protection through legislative and other measures as

may be necessary against the acts prohibited by Art. 7, whether inflicted

by people acting in their official capacity, outside their official capacity

or in a private capacity. Persons who are in custody or who are subjected

to any form of arrest, detention or imprisonment are particularly

vulnerable and therefore require special protection. The Body of

Principles for the Protection of All Persons under any Form of Detention

or Imprisonment provides for safeguards applicable in the custodial

context. This comprises:

Confidential access to a lawyer, notification of the next-of-kin or

other appropriate person of the whereabouts of a detainee, a medical

check-up upon admission to the place of detention and the provision of

adequate medical care and treatment throughout the duration of

detention.

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The Armed forces Special powers Act grants security forces broad

power to detain individuals without providing any safeguards against

arbitrary detention, contrary to the State’s obligation to adopt legislative

measures aimed at preventing torture. The Act is silent on any of the

recognized safeguards, which are, therefore, not available to arrested or

detained persons. The UN General Assembly reminded all States:

That prolonged incommunicado detention or detention in secret

places may facilitate the perpetration of torture and other cruel,

inhuman or degrading treatment or punishment.

Incommunicado detention can also amount to a separate violation

of Art.7 in relation to the detainee’s close relatives who undergo mental

suffering and anguish being deprived of information about the

whereabouts and fate of their relative. The Act also vests security forces

with the power to use necessary force at any time when effecting arrest

or entering and searching the premises. While the use of necessary force

is the recognized standard, in practice there does not appear to be any

guidance or jurisprudence that would define the term in line with

international standards or ensure that the force used was indeed

necessary. This is reinforced by the blanket immunity provided in the

Act for security officials. In practice, these factors have resulted in a

number of incidents of apparent excessive use of force incompatible

with Art.7.


The “quality of law” is one element of Art.9 (1) as interpreted by

the Human Rights Committee, which includes, besides appropriateness,

“predictability. In other words, remand in custody must not only be

lawful but also reasonable and necessary in the circumstances. The

necessity to keep an individual in custody must be justified throughout

the period of his or her detention. Even where an initial arrest was

considered reasonable and necessary, the subsequent detention may

become unreasonable and therefore incompatible with Art.9 (1). This

applies equally where a detainee is suspected of terrorism-related

offences. The UN Special Rapporteur on the promotion and protection


109

of human rights and fundamental freedoms while countering terrorism

affirmed that:

Compliance with all human rights while countering terrorism

represents a best practice because not only is this legal obligation of

States, but it is also an indispensable part of a successful strategy to

combat terrorism.

In addition to the prohibition of arbitrary detention, Art.9 provides a

list of procedural safeguards which must be complied with and should be

reflected in national legislation, including informing anyone arrested of

the reasons for his or her arrest at the moment of arrest and “promptly”

of any charges brought against him or her Art.9(2).This notification,

apart from minimizing the mental distress of an arrested person,

provides him or her with the information needed to challenge the

grounds for detention. The right of anyone who is arrested or detained

on a criminal charge to be brought “promptly” before a judicial officer

and to be tried within a reasonable time or released Art.9(3). This right

has a dual function: it provides a judicial safeguard to ensure the

lawfulness of detention and seeks to prevent unnecessarily prolonged

detention, imposing an obligation on the authorities to conduct pre-trial

proceedings expeditiously. The right of anyone who is arrested or

detained on whatever grounds to take proceedings before a court, in

order for the courtto decide “without delay”on the lawfulness of the

detention in question and order his or her release if the detention is

unlawful Art.9 (4). This procedure, known as habeas corpus, constitutes

an essential judicial guarantee against an arbitrary detention in all

circumstances. The right of anyone who has been unlawfully arrested or

detained to be compensated Art.9 (5).

Under the AFSPA, the security personnel concerned may arrest and

detain a person where a reasonable suspicion exists that the person has

committed any cognizable offence or is about to commit such an

offence. There is nothing in the text of the Act that would require the

security personnel concerned to assess the reasonableness and necessity

of the arrest in the circumstances. The reasonable suspicion element is

seemingly in line with international standards. However, no adequate

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legal procedures are in place to review that there were objective grounds

to justify arrest or detention on these grounds. In addition, the preventive

arrest envisaged under the Act and the lack of provisions to ensure the

reasonableness of arrest and detention are incompatible with Art.9 (1).

The arresting security officer is not obliged under the Act to inform the

detainee of the reasons for his or her arrest and any charges brought

against him or her at the moment of arrest or at any moment thereafter.

The absence of any provision to this effect is in clear violation of Art. 9.

The secret character of the arrest and detention under the AFSPA is

prejudicial to the fair-trial guarantees of the persons arrested and

detained if Criminal charges are brought against them, in particular, their

access to a lawyer and their right not be compelled to testify against

themselves or to confess guilt43

.

In Jolly Verghese v. Bank of Cochin44

The Supreme Court in this case brought the domestic law in line

with Art.11 of the ICCPR by process of judicial interpretation. The

principle of substantive non- arbitrariness was pressed into service.

4. Compatibility of the AFSPA with Art 21 0f the ICCPR

Art. 21 provides for the right to assemble peacefully. Restrictions

on its exercise must be in conformity with domestic law, be based on

any of the recognized grounds and be necessary and proportionate in the

circumstances. The exercise of the right to assemble peacefully implies,

in particular, that the police should not use excessive force against

demonstrators. In respect of vulnerable groups, such as members of

minorities, the State should go further and take special positive measures

in order to protect them from possible intimidation when exercising their

right to assemble peacefully in practice. The AFSPA allows the security

officer to use lethal force whenever five or more persons assemble

together. This provision effectively introduces a presumption of the non-

peaceful character of any gathering of five or more persons in disturbed

43 Article 14 (3) (b) and (g) of international covenant on civil and political rights.

44 AIR 1980 SC 474.


111

areas and effectively renders any exercise of the right to peaceful

assembly impossible, in breach of Article 21.

5. Compatibility of the AFSPA with Art. 2 (3) of the ICCPR

It is a well-established principle of human rights law that violations

of human rights, such as unjustified deprivation of life, torture, cruel,

inhuman and degrading treatment and arbitrary arrest and detention

entail a duty on the part of state authorities to conduct a prompt,

impartial and effective investigation. This principle is reflected in Art.2

(3) which requires that individuals have accessible and effective

remedies to vindicate their human rights. Where public officials or State

agents have committed violations of the Covenant rights such as those

guaranteed under Articles 6, 7, and 9 thereof, the state may not relieve

perpetrators from personal responsibility, for example, through

amnesties or immunities. No official status justifies immunity from

legal, primarily criminal, responsibility for persons who may be accused

of serious human rights violations, such as arbitrary killings, torture,

cruel, inhuman and degrading treatment, and enforced disappearances.

The Basic Principles and Guidelines on the Right to a Remedy and

Reparation for Victims of Serious Violations of Humanitarian Law

specify that:

The right to an effective remedy has two components. It comprises a

procedural right to effective access to justice and a substantive right to

receive adequate forms of reparation namely restitution, compensation,

rehabilitation, satisfaction and guarantees of non-repetition. Failure to

ensure a remedy in respect of effective access to justice or obtaining

adequate forms of reparation could in and of itself give rise to a

separate breach of the ICCPR.

6. Compatibility of the AFSPA with Art. 4 (3) of the ICCPR

Under the ICCPR, states may, in times of emergency which

threatens the life of the nation, take measures which derogates from

certain obligations, they may only do so to the extent strictly required by

the exigencies of the situation. Any State Party to the present

Covenant availing itself of the right of derogation shall immediately

inform the other States Parties to the present Covenant, through the

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intermediary of the Secretary-General of the United Nations, of the

provisions from which it has derogated and of the reasons by which it

was actuated. A further communication shall be made, through the same

intermediary, on the date on which it terminates such derogation.

Declaring an area a “disturbed area” and granting the security personnel

extensive powers is in practice imposing an undeclared emergency

regime. In its ruling, the Supreme Court refuted this, claiming that the

Act does not displace the civil power of the State by the armed forces

and does not amount to a proclamation of emergency under

Art.352 or a proclamation under Art.356 of the Constitution45

.

However, the Human Rights Committee stated in its concluding

observations on India’s third periodic report:

The Committee regrets that some parts of India have remained

subject to declaration as disturbed areas over many years for

example, the Armed Forces Special Powers Act has been applied

throughout in some areas for much longer and that in those areas, the

State party is in effect using emergency powers without resorting to

Article 4, paragraph 3, of the Covenant. The Committee recommends

that the application of those emergency powers be closely monitored so

as to ensure its strict compliance with the provisions of the Covenant46

.

VII. Conclusion

The Armed forces special powers Act is essentially an emergency

legislation and therefore, by definition, its temporal scope of application

should be limited and clearly defined. In its practical effect, the

immunity provision of the AFSPA resembles amnesty laws that make it

impossible to investigate and prosecute perpetrators of serious human

rights violations, including torture. It effectively shields the security

officers operating in disturbed areas from prosecution and results with

impunity. Indeed, no cases are known in which the Central Government

45 Naga People's Movement of Human Rights v. Union of Indiap.74 46 Amnesty International, India Briefing on the Armed Forces Special Powers

Act, 1958, 23(9 may 2005)available at: http://www.refworld.org/docid/45c1c2b62.html (last visited on March 12, 2013).


113

waived the immunity of security officers alleged to have been

responsible for violations. This runs counter to the Vienna Declaration

and Programme of Action adopted at the seminal World Conference on

Human Rights, which urged all states to:

Abrogate legislation leading to impunity for those responsible for

grave violations of human rights such as torture and prosecute such

violations, thereby providing a firm basis for the rule of law.

There have been numerous violations of treaties, resulting in

suffering and death which might have been avoided had humanitarian

law been better respected. Humanitarian law has always had ambitious

goals to protect the victims of armed conflicts, and to limit the means

and methods of warfare. It comes into play at precisely that point when

the rules and structures are breaking down; when countries and

communities are struggling for their very existence; when humanitarian

standards are in jeopardy. And yet, by many of the criteria of

international standard-setting, humanitarian law has been a remarkable

success story. Its rules are enshrined in numerous treaties and

conventions; spread over hundreds of pages and treaty articles, they are

among the most detailed and extensive in international law. Moreover,

humanitarian law may truly claim to be a universal body of law. Serious

violations of humanitarian law are committed on a daily basis in the

dozens of conflicts now taking place around the world. Violations

nevertheless do occur, and will continue to do so until an end is put to

impunity. The imperative need for the government to abide by the

International bill of human rights arises out of constitutional

requirements, general customary International law, common law

background, state practices and above all, the Union Government’s

signature and ratification of the two covenants.

Rajbala v. State of Haryana, a guiding light for Jammu and Kashmir

Abstract

The founding fathers of the Constitution of India envisioned good

governance through the socio-economic objectives mentioned in the

Directive Principles of State Policy. Mahatma Gandhi, the father of

nation, often emphasized that India lives in villages as at the time of

independence about 82.7 percent population of India lived in villages.

He said unless the village life is revitalized , the nation as a whole

cannot progress. Keeping in view the Gandhi’s idea of decentralized

governance ,Article 40 was incorporated in the Constitution of India.

Almost all the States enacted Panchayati Raj Acts but Panchayati Raj

Institutions remained paralysed due to various reasons.Then this dismal

state of affairs led to realization that constitutionalisation of Panchayati

Raj Institutions and empowerment of them is essential.

The 73rd

Amendment Act,1992 gave Constitutional status to

Panchayats butdid not mention any educational qualification for the

elected representatives and it was left to the States to decide .Haryana

and Rajasthan introduced educational qualification for Panchayat

representatives by amendment of their respective Panchayati Raj

Acts.The amendments were opposed but the Supreme Court upheld the

amendment as constitutional. In Jammu and Kashmir, Panchayati Raj

Act, 1989 is silent as regards the minimum educational qualification as

a pre-requisite for contesting Panchayat polls. The researcher through

the empirical study which was conducted in four districts of the Jammu

Division in Jammu and Kashmir has attempted to find out the

educational qualification of elected representatives and whether the

elected Panchayat representatives support the view that minimum

educational qualification should be laid down in the Jammu and

Kashmir Panchayati Raj Act,1989.

Keywords:HalqaPanchayat, Elected Panchayat

Representative (EPRs),Educational Qualification, Constitution,

Village Swaraj, Democratic Decentralisation.

KJLS VOL. VIII

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1. INTRODUCTION

The founding fathers of the Constitution of India envisioned good

governance through the socio-economic objectives mentioned in the

Directive Principles of State Policy. Mahatma Gandhi, the father of

nation, often emphasized that India lives in villages as at the time of

independence about 82.7 percent population of India lived in villages .

As per 2011 Census,the rural population of India is 72.18 percent while

the urban population is 27.82 percent.1 Mahatma Gandhi, the father of

nation,often emphasized that India lives in villages as at the time of

independence about 82.7 percent population of India lived in villages.

He said unless the village life is revitalized, the nation as a whole cannot

progress. He was of the view that Indian villages had lost their

republican character as they were brought under the purview of

centralized bureaucratic control during the British rule. Gandhi wanted

to restore the earlier democratic character of Indian villages. He

presented a new system of village governance which he called village or

Gram Swaraj.2

The Swadeshi spirit of Gandhi helped him to discover an

indigenous alternative to modern democracy as modern democracy

according to Gandhi is highly centralized, it is hierarchical in nature and

its power is concentrated in the hands of a top few in the hierarchy who

are unwilling to share power with others. This defeats the purpose of

democracy as individual has no voice whatsoever in shaping the policies

of the government. Since the village was a small unit, all its members

could contribute to the village in a significant manner and they could

influence the planning of their village. In a village swaraj ,individual

persons could be the architects of their own governance.3He insisted that

1 Ministry of Home Affairs, Government of India ,Census Report2011, available at:http://www.censusindia.gov.in/2011-Common/CensusData2011.html ( last visited on May 2, 2018)

2 R .C. Pradhan and Siby K. Joseph, “Panchayat Raj and Gandhi’s Vision of Village Governance”, available at: http://siby.iecit.in/wp-content/uploads/2014/09/Dia_Oct-013.pdf (last visited on May 2, 2018)

3 K . Pancndikattu, Gandhi :The meaning of Mahatma for the Millennium 160 ( CRVP ,2001).

RAJBALA V. STATE OF HARYANA

117

if the village perishes,India will perish too.It will no more be

India.4Gandhi revamped the constitutional concept of village republics

which functioned for longest period in India.He opined that the village

republic would be governed by Panchayat consisting of five persons to

be elected annually by the adult villagers, male and female, possessing

minimum prescribed qualifications.5Thus, Gandhi supported the view

that persons possessing prescribed qualification must govern the village

though he did not discuss in detail the qualifications required. The

Panchayats will have all the powers as they will be the legislature,

judiciary and executive combined.6 Gandhi’s ideas of decentralised

governance were not given due respect by Constituent Assembly. It was

brought into his notice that his ideas on village governance had gone

totally unnoticed by the Constituent Assembly . He said it is certainly an

omission calling for immediate attention if our independence is to reflect

the peoples’ voice .The greater the power of the Panchayats, the better

for the people. Despite his observation on these lapses of the Constituent

Assembly, even the revised draft of the Constitution which was

reintroduced in the Constituent Assembly on November 4, 1948 did not

consider it worthwhile to include Gandhi’s concept of Gram Swaraj.

Consequently, after lots of debates and discussions and pleas of the

Gandhians , an amendment moved by K.Santhanam was accepted by

chairman of the drafting committee i.e. Dr.Ambedkar .This amendment

got incorporated as Article 40 in the Constitution of India which reads

as 'The State shall take steps to organise village Panchayats and endow

them with such powers and authority as may be necessary to enable

them to function as units of ‘ Self-Government’. This was nothing more

than a lip service to Gandhian ideas as any item under the Directive

Principles of State Policy could not be legally enforced. It leaves

everything at the sweet will and discretion of the concerned State

4 H. Roy,Poverty of Gandhian Philosophy192 (Concept Publishing Company ,2001).

5 Id. at 193. 6 S.Mukherjeeand S. Ramaswamy, Political Science Annual90 (Deep and

Deep Publications ,1996).

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Governments.7 This led to enactment of Gram Panchayat Acts by

various States but they were no more than half-hearted attempts for the

creation of rural local-development institutions.8In Jammu and Kashmir

also Village Panchayat Act was passed in 1951 which replaced the

Village Panchayat Regulation,1935 (as amended in 1941). The Village

Panchayat Act,1958 repealed the 1951 Act.

2.Evolution and Analysis of Panchayati Raj System in India

The eradication of rural poverty has been a major concern of third

world countries and donor agencies for many decades. Various

approaches have been used to eradicate rural poverty. Community

Development (CD) emerged as the dominant approach in the early 1950s

in many third world countries, especially in Asia and Latin America.

However,the CD movement declined in the 1960s when it was realized

that it was not effective in reaching the poor.9 The term Community

Development (CD) was first officially used in 1948 at British Colonial

Office’s Cambridge Conference on Development of African Initiative.

The CD programme was aimed at helping British colonies in Africa

prepare for independence by improving local government and

developing their economies.10 Thus, CD included political, economic

and social development objectives.The first major CD programme was

launched in India in 1952 with support from the Ford Foundation and

United States Foreign assistance agency.Post- Independence, India also

experimented with the Community Development Programme. The first

major rural development programme launched in India was Community

Development Programme, 1952 and core philosophy was overall

development of rural areas and people’s participation.It was intended to

affect every aspect of rural life. It was launched on pilot basis on

7 Supra note 2. 8 R. Singh and S. Singh (eds.), Local Democracy and Good Governance

xiv (Deep and Deep Publications 2011). 9 C. L. Machethe, Approaches to Rural Development in the third World:

Lessons for South Africa, available at:https://ageconsearch.umn.edu/bitstream/11213/1/pb95ma02.pdf ( last visited on May 2, 2018).

10 P. Kumar, “Rural Development Trajectory-The Shifting Programme”, available at: http://yojana.gov.in/Recent_archive_english/February-14.pdf (last visited on April 25,2018).


119

October 2,1952 and rapidly implemented. By the end of first five year

plan, it covered only one-fifth of population and by the end of second

five year 70 percent of rural areas got covered. By 1964, it covered

whole country. However the CD movement lost momentum in the late

1950s and by the mid-1960s the critics of the Community Development

Programme called it a total failure as programme did very little to reach

the poor in India.

One of the aims of the programme was to stimulate the initiative

and action of communities at the village level but this was not achieved.

It failed to arouse popular participation in upliftment of rural India.11The

people’s participation was not forthcoming and a probe was ordered. As

a result Balvantray Mehta Study Team was appointed to find out the

reason behind the failure of this comprehensive Programme.The Study

Team suggested scheme of democratic decentralization for

streamlining the Community Development Programme and also for

creation of new system for rural local government.12 The government

that derives its authority from the people should redistribute it to the

people so that the people can plan for themselves what is best for them.

The concept took the shape of Panchayati Raj in India.13 The Committee

recommended three-tier system of Panchayati Raj to shift decision-

making centers closer to the people. The States were persuaded to accept

the recommendations and devolve adequate powers to popularly elected

Panchayat bodies.14

In Jammu and Kashmir, at the same time government also passed

Village Panchayat Act,1958 which replaced the 1951 Act. The

Panchayati Raj system was first adopted by Rajasthan and then other

states followed the suit. However ,Panchayati Raj failed on account of

various reasons. These institutions were although best perceived as the

means through which the voice of unheard could be heard, but that could

11 Supra note 9. 12 Supra note 8. 13 Supra note 10. 14 M. Singh, “Empowering Panchayati Raj Institutions towards Good

Governance” in C.P. Barthwal (ed.), Good Governance in India 254 (2003).

KJLS VOL. VIII

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not happen. After having met with some initial success, these were

unsuccessful in proving themselves to be people’s institutions. The

concept of Panchayati Raj developed during the 1959-64,became

stagnant during 1964-71 and decayed thereafter. Even the attempt of

Ashok Mehta Committee failed to revitalize the Panchayati Raj

Institutions. However, some states like Karnataka ,Andhra

Pradesh,West Bengal did take a lead to empower and revitalize the

Panchayats. The non-Congress governments of these states took

concrete steps to strengthen the Panchayati Raj Institutions in the post-

general election period(1980-1983).But in the rest of the country ,the

Panchayati Raj Institutions remained paralysed due to gradual erosion in

their powers ,depletion of their resources,lack of political will etc.The

poor governance of Rural Development Programmes by the government

agencies led to siphoning of virtually 85 paisa out of every rupee spent

on these,and those for whom these poverty alleviation and employment

generation programmes were meant could receive only the remaining 15

paisa.

This dismal state of affairs led to realization that

constitutionalisation of Panchayati Raj Institutions and empowerment of

them is essential so that these could become institutions of self-

government and could make and implement plans for economic

development and social justice.Thus,73rd Amendment Act was passed

which led to establishment of a new system of Panchayati Raj in all the

states in 1994 through the enactment of conformity legislations.15 It is

admitted by all who believe in democracy that a democratic form of

government in a country must be sustained by a system of localself-

governing institutions.Lord Bryce said , “ the best school of democracy

and best guarantee for its success is the practice of localself-

government”.16 Those aspiring for good governance believe in

democracy and democracy is epitomized by a system of local self-

15 C. Pal and A. Arya, “Some steps for Good Governance through Democratic Decentralization” in C.P. Barthwal (ed.), Good Governance in India 254 (2003).

16 A.P. Barnabas. “Good Governance at Local Level” 448IJPA453(1998).


121

government.17 In India the champions of local self-government,

however, kept on arguing that benefits are not reaching people

concerned despite plethora of schemes and massive investments in rural

sector.It was also realized that infrastructure at the local level was in a

very bad state and it was one of the reasons for poor delivery system.

People’s participation was not there and development model was based

on ‘Top-down approach’. The central government realized that without

people’s participation through Panchayats, rural development was not

possible and dream of good governance cannot be realized.

As a result this landmark amendment i.e.Constitution (Seventy-

third Amendment)Act was passed in 1992 which led to fundamental

restructuring of rural governance based on the philosophy of democratic

decentralization.The democratic decentralization is prerequisite of good

governance and good governance has to start from the grassroots.18 The

73rd Amendment not only gave constitutional status and 29 functions to

the Panchayati Raj Institutions but also provided mechanism for free

elections and financial resources to the Panchayati Raj Institutions.

Besides, it sought to ensure the empowerment of women and weaker

sections like Scheduled Castes and Scheduled Tribes, through

reservations.19 For democracy to be successful at the national level, the

grassroots institutions have to be strong. The local authorities have to

respond to the felt needs of the people. It is a government which initiates

and implements rural development programmes.It must gain support of

the people in the discharge of these programmes.The positive response

of the rural community to development programmes strengthens

democracy.20The 73rd Amendment Act,provides disqualification for

membership of Panchayat. The Article243F oftheConstitution (Seventy

–third Amendment) Act,1992states that:

17 C.P. Barthwal, “Good Governance in India” in C.P. Barthwal (ed.), Good Governance in India 14 (2003).

18 Y. S. Sisodia, “Working of Panchayati Raj Institutions at the Grassroots Level: Experiences from the State of Madhya Pradesh” in R.Singh and S.Singh (eds.), Local Democracy and Good Governance 209 (2011).

19 S. Singh, Decentralised Governance in India : Myth and Reality (Deep and Deep, New Delhi,2004).

20 Supra note 16.

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(1) A person shall be disqualified for being chosen as, and for

being, a member of a Panchayat,

(a) If he is so disqualified by or under any law for the time being in

force for the purposes of elections to the Legislature of the State

concerned: Provided that no person shall be disqualified on the ground

that he is less than twenty five years of age, if he has attained the age of

twenty one years;

(b) If he is so disqualified by or under any law made by the

Legislature of the State

(2) If any question arises as to whether a member of a Panchayat

has become subject to any of the disqualifications mentioned in clause

(1), the question shall be referred for the decision of such authority and

in such manner as the Legislature of a State may, by law, provide.

The Constitution(Seventy-third)Amendment Act ,1992 did not lay

down any educational qualification for membership of Panchayat.As the

local government is the State subject figuring as item 5 in the List II of

the Seventh schedule of the Constitution, the State governments are

endowed with power to frame their own Panchayati Raj Acts and lay

down the disqualifications and qualifications formembership of

Panchayats.Therefore, different States have different disqualifications

for membership.

3. Insights into Jammu and Kashmir Panchayati Raj system

In Jammu and Kashmir too, efforts were made to revive the

process of democracy at the grassroots. The State government repealed

the Jammu and Kashmir Village Panchayat Act, 1958 and replaced it by

the Jammu and Kashmir Panchayati Raj Act, 1989.The Jammu and

Kashmir Panchayati Raj Act,1989 was passed with the objective to

promote and develop Panchayati Raj in the state as an instrument of

local self-government to secure effective participation of the people in

the decision-making process and for overseeing developmental

programmes.21 The State framed the Jammu and Kashmir Panchayat

Rules-1996 based on its own 1989 ,Act to overcome the deficiencies so

21 Jammu and Kashmir Panchayati Raj Act, 1989 .


123

as to put it at par with the Central Act i.e.The Constitution (Seventy –

third Amendment) Act, 1992 .22The Section 6 of the Jammu and

Kashmir Panchayati Raj Act,1989 deals with disqualification for

membership of Panchayats.Itstates :

(1) A person shall be disqualified to be a member of Halqa

Panchayat, if he–

(a) is not a permanent resident of the State ; or

(b) is in the employment of the Government or any local body ;

or

(c) is under twenty-five years of age ;or

(d) is of unsound mind and stands so declared by a competent court

; or

(e) has been adjudged insolvent by a competent court ; or

(f) is a salaried servant of a Halqa Panchayat ; or

(g) is a Lamberdar or village Chowkidar ; or

(h) has been dismissed from the service of the Government, a local

body or Halqa Panchayat ; or

(i) has been convicted of and sentenced for an offence (other than

an offence of a political nature) punishable with imprisonment for not

less than two years, unless a period of three years,or such less period as

the Government may allow in any particular case, has elapsed since his

release ; provided that this clause shall not apply to an offender who has

been released under the provisions of section 562 of the Code of

Criminal Procedure, Samvat 1989 or under the Jammu and Kashmir

Probation of Offenders Act, 1966.

(2) Subject to the provisions of sub- section (1), no person shall be

qualified to be chosen as a member of Halqa Panchayat unless his name

is included in the electoral roll of such Halqa Panchayat :

Provided that any person aggrieved by an order under this section

shall have a right of appeal to such authority as may be prescribed.

22 G. Wani & E. Yasmin, “DemocraticDecentralization in J&K: Gender and Political Change” 54 Mainstream (2015) available at:http://www.mainstreamweekly.net/article6160.html

(last visited on April 25,2018).

KJLS VOL. VIII

124

(3) A person who becomes a member of a Halqa Panchayat on the

basis of a false Scheduled Caste or Scheduled tribe certificate, shall be

disqualified from the date on which it is found that he had become such

member or office bearer on the basis of such false caste certificate and

shall continue to be disqualified for further period of six years.

The local self-government in Jammu and Kashmir State

commenced with promulgation of Jammu and Kashmir Village

Panchayat Regulation No.1 in 1935.The qualifications were laid down

under the 1935,Regulation for a voter as well as the person seeking

election to the Panchayat. The various qualifications were that the

person should be a hereditary State subject, should be living in a rural

area,was not insane and was of 21 years old. However, other

qualificationswere as follows:

(i) His revenue tax should be at least five rupees.

(ii) He should possess any kind of property valued at Rs 1,000.

(iii) His annual income should be at leastRs 700.

(iv) He should be at least a matriculate or possess an

equivalent academic qualification.23

These qualifications were criticized as majority of the people could

neither vote nor seek election to any office of Panchayat. It is clear that

the Panchayati Raj Institutions envisaged under the 1935

Regulationwere meant to be controlled and manned by a small section of

the population ,a class comprising the rich ; in other words those who

were the beneficiaries of the autocratic rule of the Maharaja .The

common villagers had no say in matters related to the Panchayats.24The

literacy rate at that point of time was too low and educational

qualification outrightly excluded the large section of society from

contesting the election. These qualifications were instances of eliticism

oblivious to socio-economic realities at the grassroots level. The 1989

Act, did not prescribe minimum educational qualification for the person

23 Riyaz Punjabi, “Panchayati Raj in Kashmir: Yesterday, Today and Tomorrow” 38 in George Mathew (ed.) Panchayati Raj in Jammu and Kashmir 38 (1990).

24 Ibid.


125

seeking election to a Panchayat.In this paper only one qualification out

of many i.e. educational qualification has been discussed and empirical

study was conducted to find out the educational status of the elected

representatives.

4.Reform Agenda

Recently,Haryana Legislative Assembly enacted the Haryana

Panchayati Raj (Amendment) Act, 2015 which sought to amend

the Haryana Panchayati Raj Act, 1994 and fixed minimum educational

qualification relating to eligibility criteria for elections to Panchayati Raj

Institutions (PRIs).The Haryana became the second State after

Rajasthan to fix educational and other qualifications as eligibility criteria

for the candidates contesting Panchayat elections.Initially an Ordinance

known as “Haryana Panchayati Raj (Amendment) Ordinance ,2015 was

promulgated which was replaced by the Haryana Panchayati Raj

(Amendment),2015. Section 175 of the Haryana Panchayati Raj Act,

1994mandates that persons suffering from any one of the

disqualifications mentioned in Section 175 are neither eligible to contest

election to any of the offices under the Act nor can they continue in

office if they incur any one of the disqualifications,after having been

elected .The categories so specified runs into a long list, such as convicts

of certain categories of offences, adjudicated insolvent, people of

unsound mind etc. By the Haryana Panchayati Raj

(Amendment)Act,2015,more categories were incorporated which

disqualified the persons from contesting elections for any one of the

elected offices under this impugned Act,i.e.

• Now it is mandatory for the candidates to have a functional

toilet at home and payment slips of power bills.

• For general candidates contesting the Panchayat

elections matriculation is the essential qualification.

• For the women (general) and Scheduled Caste candidates,

essential qualification is middle standard or class 8th passed.

• The educational qualification for women SC candidates should

be class V passed.

KJLS VOL. VIII

126

• Persons against whom charges have been framed by the

competent court for criminal offences punishable by not less than 10

years of imprisonment will not be allowed to contest the elections till

they are acquitted by the court.

• Cooperative loan defaulters will also be debarred from

contesting the elections to Panchayati Raj Institutions.

The reason given for amendment of the 1994Act,was to improve

the quality of leadership and governance in Gram Panchayats and also to

enable elected representatives of PRIs to be more accountable and

responsible towards their people.

5.Fusion or Fission of Law and Equity

The Haryana Panchayati Raj (Amendment) Act, 2015 was

challenged in Supreme Court and it was alleged that it disqualified

sizeable rural population from contesting elections. The Rajasthan

Panchayati Raj (Second Amendment) Ordinance, 2014 was challenged

in High court of the Rajasthan by writ petitionand High Court had

refused to stay the Ordinance fixing minimum qualification for

contesting the Panchayati Raj Institutions elections.25Therewere various

arguments given against Haryana Panchayati Raj (Amendment)Act,2015

like:

i. Constitution of India does not prescribe any educational

qualification for contesting the Parliament and State assembly elections

under Articles 84 and 173.Articles 84(c) and Article 173 (c) state that a

person shall not be qualified to be chosen to fill a seat in Parliament and

in the Legislature of a State unless he possesses such other qualifications

as may be prescribed in that behalf by or under any law made by

Parliament. The Parliament passed Representation of People Act,1951

wherein it laid down the qualifications and disqualifications for

membership of those houses but even this Act is silent on educational

qualification of members of Parliament , members of Legislative

Assembly and Legislative Council . The Haryana and Rajasthan

Panchayati Raj amendment Acts have created an anomalous situation

25 Dulari Devi v. State of Rajasthan, SCC 2015 121


127

where a person who is illiterate can contest the Parliament and State

assembly elections but not Panchayat elections.

ii. This law is violative of Article 14 of the Constitution as the

classification is not reasonable and the unreasonable restrictions have

been created on the constitutional right of voters to contest elections.If

any law creates two classes of persons,the classification must be

reasonable and must have some nexus with the objective sought to be

achieved. The petitioners alleged that classification is unreasonable

among people who form one class and there is no intelligible difference.

iii. This amendment belittled the initiatives taken by uneducated

elected representatives who are more connected with the constituents

and who on the basis of their experience have been able to implement

the development programmes effectively.

iv. The right to contest is a constitutional right has been upheld by

the Apex court in previous judgments but this impugned Amendment

has barred many people from contesting the election as they don’t have

required qualification.This constitutional right cannot be curtailed by

statutory laws.

v. It is wisdom that plays a role at local governance level

especially villages rather than education.

vi. This amendment has also violated Article 15 of the Constitution

as under this Article of the Constitution which not only prohibits

discrimination but also permits the state to make special provisions for

the advancement of women as well as other weaker sections of the

society. By fixing minimum education qualification the state

government has excluded large number ofmarginalized people including

women from contesting the elections as in rural areas the literacy level is

very low and there is majority of illiterate women.According to 2011

census, female literacy rate is 51.96 % and this amendment will exclude

the women on much larger scale.

vii.It is a responsibility of the State government to provide

education and it’s a failure on the part of government that it could not

increase the literacy rate of rural areas of Haryana.The rural areas that

have not received a basic formal education are most likely to be

KJLS VOL. VIII

128

overwhelmingly poor and this amendment has put the restriction upon

the freedom of poor people to participate in the working of democracy.

This amendment would take away an opportunity from them to raise

their grievances.

6. Judicial Wisdom

But despite of all these and many more arguments, the Supreme

Court upheld the Haryana Panchayati Raj (Amendment) Act, 2015. The

Apex Court held that there is nothing irrational or illegal in prescribing

minimum education for contesting elections and possession of basic

education would enable the candidates to effectively discharge their

duties. Education gives the power to the human being to discriminate

between good and bad, right and wrong.26Therefore,prescription of

education is not irrelevant for better administration of the

Panchayats.The classification cannot be said either based on no

intelligible differentia, unreasonable or without a reasonable nexus with

the object sought to be achieved.27

The Supreme Court has in many cases like N.P.Ponnuswami

v.Returning officer,28Jamuna Prasad Mukhariyav v.Lachhi Ram,29

Jyoti

Basu v.Debi Ghosal,30P.NallaThampyThera v.B.L.Shankar,31held that

right to be elected is not a Fundamental right .It is statutory right and

subject to statutory limitation.In Javed Ahmed case,32the Supreme Court

again reiterated that right to contest an election is neither a fundamental

right nor a common law right.It is a right conferred by statute.The right

to vote and right to contest an election to a Panchayat are constitutional

rights subsequent to the introduction of Part IX of the Constitution of

India.Both the rights can be regulated /curtailed by the appropriate

26 The Haryana Panchayati Raj (Amendment) Act, 2015 , available at: http://www.gktoday.in/iaspoint/current/haryana-panchayati-raj-amendment-act-2015/

(last visited on April 26,2018). 27 Rajbala& Others v. State of Haryana & Others (2016) 1 SCC 463. 28 AIR 1952 SC 64. 29 AIR 1954 SC 686. 30 AIR 1982 SC 983. 31 AIR 1984 SC 135. 32 AIR 2003 SC 3057.


129

legislature directly.33The Supreme Court referred the functions and

duties of the Sarpanch and the Gram Panchayat and came to the

conclusion that it is necessary that the elected representatives must have

educational background to enable him /her to effectively carry out the

functions assigned to Panchayats in Part IX.34

7. Objectives

The present study was conducted with the following objectives:

1. To find out whether Haryana Panchayati Raj

(Amendment)Act,2015 is a lesson for Jammu and Kashmir.

2. To find out the educational status of elected Panchayat

Representatives.

3. To find out whether they support the minimum educational

qualification for the person seeking election to a Panchayat.

8. Research Methodology

In Jammu and Kashmir,the empirical study was conducted and the

respondents of the study included 328 Sarpanches and Panches from 40

HalqaPanchayats (Gram Panchayats)spread over 8 Blocks of four

districts of Jammu and Kashmir i.e. Jammu,Samba,Rajouri and Poonch.

The empirical study was conducted to know about theeducational status

of the elected Panchayat representatives (EPRs) and whether they

support the view that minimum educational qualification educational

qualification must be prescribed for the person seeking election to a

Panchayat.

In the light of objectives of this study, a systematic research design

was drawn. The stratified, purposive and random sampling methods

were used for the selection of the districts, the Blocks and Halqa

Panchayats. The respondents were also selected by using the above

sampling methods. The data for the study were collected through

primary and secondary sources. The primary sources included interviews

of elected Panchayat representatives with the help of structured and pre-

tested interview schedule containing closed ended questions. The

secondary sources included the published government documents, books

33 Supra note 27. 34 Ibid.


133

35 2 0

Second

ary

35 43.

20

44 53.

66

35 49.3

0

43 45.7

5

157 47.87

Higher

Second

ary

21 25.

93

23 28.

05

11 15.4

9

34 36.1

7

89 27.13

Any

other

10 12.

35

06 7.3

2

01 1.41 11 11.7

0

28 8.54

Total

81 100 82 100 71 100 94 100 328 100

As per Table- 3 the different qualifications were mentioned by the

respondents,2.44 percent

said primary,14.02 percent mentioned Middle,47.87 percent stated

secondary,27.13 percent

favoured Higher secondary and 8.54 percent responded ‘Any

other’ which meant

higher education.

Table: 4

What should be educational qualification for Panches?

EPRs of four Districts Total

Jammu Samba Rajouri Poonch

N

o. %

N

o. %

N

o. %

N

o. %

No

. %

Primary

5

18.5

2 2

14.6

4 1

15.4

9 3 3.19

1

12.5

0

KJLS VOL. VIII

134

Middle

3

40.7

4 3

40.2

4 9

54.9

3 6

38.3

0 41

42.9

9

Secondar

y

3

28.4

0 4

41.4

6 7

23.9

4 6

38.3

0 10

33.5

4

Higher

Secondar

y 4

4.94 2

2.44 3

4.23 4

14.8

9 3 7.01

No

qualificati

on

6

7.41 1

1.22 1

1.41 5

5.32 3

3.96

Total

1

100.

00 2

100.

00 1

100.

00 4

100.

00 28

100.

00

This question was aimed at knowing whether they support the

educational qualification for Panches as well.The data presented in the

Table- 4 reveals that only 3.96 percent did not favour any qualification

for Panches as according to them it would not make any difference if

Panches are not literate. But majority of the respondents favoured that

even Panches should be literate. The Table-4 further reveals that 12.50

percent respondents stated primary, 42.99 percent advocated

middle,33.54 percent said secondary and 7.01 mentioned ‘Any ot

10. Conclusion

Thus ,the data makes it clear that in Jammu and Kashmir even the

elected Panchayat representatives also support the minimum educational

qualification for persons seeking election to Panchayats and most

striking fact which got deciphered while interviewing was that all the

328 respondents had no knowledge that Supreme Court has upheld the


135

minimum educational qualification.Even after the introduction of the

73rd Constitutional Amendment, illiteracy is a common excuse by the

elected representatives for poor functioning of the Panchayati Raj

Institutions.35 But the prescription of minimum educational qualification

by the Government of Haryana has undoubtedly to be accepted as a step

in the right direction despite the fact that it violates the spirit of the

Constitution by denying the illiterates among them their democratic right

to contest the Panchayat elections and despite the fact that they are

entitled to contest the elections to the State Legislature and House of the

People.36

Thus the Jammu and Kashmir Government must prescribe

minimum educational qualification in the Jammu and Kashmir

Panchayati Raj Act. The government should realise

that Panchayati Raj Institutions in Jammu & Kashmir will have to be

strengthened not only for providing good governance at local level but

also for better implementation of the rural development programmes.

Elected Panchayat representatives play a key role in managing

government programs, and the lack of adequate educational

qualifications has resulted in sub-standard public service

delivery.Minimum educational qualifications must be prescribed for

becoming Sarpanch and Panch of HalqaPanchayat (Gram Panchayat).

Otherwise they shall not be able to discharge their duties and exercise

their powers in an effective manner. Moreover, they shall remain mere

tools in the hands of bureaucrats. Therefore, government of Jammu and

Kashmir should give consideration to the fact that even Supreme Court

has upheld the minimum educational qualification for contesting

Panchayat elections.Above all, it is needed for countering feeling of

deprivation and alienation which have been created mainly on account of

the acts of omission and commission on the part of the successive ruling

political dispensations at the State and Central levels.The broad

35 R. Singh and K. Pal, “Myth of Women Empowerment in the Panchayats of Haryana” 54 Mainstream (2016).

36 Ibid.

KJLS VOL. VIII

136

argument is that while education may not be an essential qualification

for success it would certainly help improve the chances for success.

ShabanaShabnam*

* Assistant Professor, The NorthCap University [email protected]

Compulsory Licensing and Generic Drugs: Healing or Harming Indian Economy

Abstract

The issue of compulsory licensing and generic drugs engrosses the

concept of patent or a part of patent. With the post 2005 amendments in

the Patent Act, 1970, several changes have appeared in the

pharmaceutical sector, for example i.e., changes in the market structure,

changes in distribution policies of drugs by the firms, price of the drugs,

market competition and value of branded drugs, the supply of drugs at

the level of doctors, and lastly the accessibility of essential drugs to the

people across the country. These changes stanch the verity that the

Patent regime has been changed, which in one way causes deregulation

on the prices of drugs where the firms are open to monopolize the

market in respect of prices of newer drugs even without considering the

very objectives of Doha Declaration. Secondly, the foreign investors are

preventing the import or use of life saving drugs in the Indian market

because they have invested millions in research and development for

their creation. Recently the Natco decision, 2012 has prompted

severepondering at the international front, particularly by the

multinational pharmaceutical companies, and the U.S. government and

its representatives. It was argued that India’s compulsory licensing

provisions violate the TRIPS agreement. Therefore, by looking at the

growing concerns and apprehensions raised over compulsory licensing

provisions in India, this article is aimed to examine certain questions:

How the current practices of compulsory licensing affect the future of

pharmaceutical industry? Does the population of developing countries

have access to essential medicines? Does the potential of

pharmaceutical industry determine India’s position on compulsory

licensing in global market? Thus this article opens up with a brief

analysis of the interplay between patents and generic medicines. This

includes an overview of the Indian market in respect of pharmaceutical

industry and the right of access to medicines as a demonstration of

human rights.

KJLS VOL. VIII

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Keywords:Generic Drugs, compulsory licensing, TRIPS,

global economy, accessibility of life saving drugs.

Introduction

The economy of India is a developing mixed economy. It is the

world's sixth-largest economy by nominal GDP and the third-largest by

purchasing power parity (PPP) and according to the Gross Domestic

Product (GDP) growth which was averaging 7.1 per cent in 2016-17,

rated India amongst the best performing economies in the world through

the growth lowered down from 7.1 per cent to 6.5 percent in FY 2017-18

due to major reforms. Nevertheless it is estimated that India would be

the world’s fast major economy in future, if India keeps improving the

climate for rapid growth on the strength of its sustainable engines i.e.,

private investment and exports1. The other main parts of this sustainable

enginebelong to valuable sectors, such as, Information Technology,

Telecommunications, ITES, Pharmaceuticals, Banking, Insurance, Light

Engineering Goods, Auto Components, Textiles & Apparels, Steel,

Machine Tools and Gems and Jewellry, creating demand for Indian

products and services in international and national markets. After

independence in 1947, Indian policy makers favored a profoundly

insulated, self reliant economy, with a prime focus on poverty reduction.

India tried to achieve progress through state-directed industrialization

and followed a socialist economic model.

The Indian pharmaceutical industry has contributed significantly to

global healthcare by ensuring high quality, affordable and accessible

medicines around the world in the name of generic products. The

industry has grown rapidly over the last decade and has been

instrumental in lashing generics access globally. India is a striking hub

for generic, R&D and manufacturing of pharmaceuticals owing to its

1 An Overview of India’s Economic Performance in 2017-18, Economic Survey 2017-18 Volume 2. Available on http://mofapp.nic.in:8080/economicsurvey/pdf/001-027_Chapter_01_Economic_Survey_2017-18.pdf

COMPULSORY LICENSING AND GENERIC DRUGS

139

strong capabilities across the value chain.2The pharmaceutical industry

in India ranks 3rd in the world in terms of volume and 14th in terms of

value. India contributes the second largest share of pharmaceutical and

biotech workforce in the world. In March 2018, the Indian

pharmaceutical market grew at 9.5 per cent.3Also India accounts for the

second largest number of Abbreviated New Drug Applications (ANDAs)

and is the world’s leader in Drug Master Files (DMFs) applications with

the US. Indian Drugs & Pharmaceuticals sector has received cumulative

FDI worth US$ 15.59 billion in between April 2000- December

2017.Presently over 80 per cent of the antiretroviral drugs used globally

to combat AIDS (Acquired Immuno Deficiency Syndrome) are supplied

by Indian pharmaceutical firms. However, between 1970 and 2005, India

did not have product patent. Without any product patent, the Indian

pharmaceutical industry developed at a very rapidly.With the effect of

World Trade Organization's (WTO) Agreement on low price Trade-

Related Aspects of Intellectual Property Rights (TRIPS), India was

required to introduce product patent protection in its patent law. Despite

objections to the introduction of product patent, the Indian government

revised its patent law in 2005. Specifically, the Patents (Amendment)

Act, 2005 includes some sections aimed at supporting a compulsory

licensing regime.4 In 2012, the Indian government issued the country's

first compulsory license against a foreign company namely Bayer

Pharmaceuticals which became a core issue in international platform.

Even United States had also pressurized India to revise its IPR policy for

medicines as per their Office of the United States Trade Representative

(USTR )sec. 301 which if effected would certainly harm the compulsory

license purposive mechanism and Indian economy.. Apart from that, as

2 Khader and Feroz Ali, “Transcending Differences: The challenge for Pharmaceuticals in the Post- TRIPS Indian Patent regime” Journal of Intellectual Property Rights, 13(5) 2008 September, p. 426.

3Indian Pharmaceutical Industry. Available on www.ibef.org /industry/pharmaceutical- india.aspx (visited on 13/03/2018) 4 GopakumarNair, “Impact of TRIPS on Indian pharmaceutical industries”

Journal – intellectual property Rights, vol. 13, 2008 September, p. 435.

KJLS VOL. VIII

140

India is member of BRICS nation so access to medicine is a prerequisite

to right to health. Even the constitutions of South Africa, Brazil and

Thailand have provisions for guaranteeing a right to health to their

citizens.

Compulsory Licensing is not new in India but the generic drugs in

relation to Access to medicine have been in debate between developing

countries and developed countries. Recently when India was highly

criticized for compulsory licensing provisions stating that Indian

government has unreasonably promoted compulsory licensing in its

“National Manufacturing Policy” as a mechanism to effectuate

technology transfer in certain sectors, which indicates that the

government is using compulsory licensing merely as a tool to achieve its

industrial policy goals rather than towards protecting public health in the

country. Eventually many foreign pharmaceutical industries became

reluctant filing patent application in India through India loosened its

FDI and technology transfer.Lastly, the Pharma industry has been

impacted by several challenges like the patent cliff, significant price

erosion, consolidation at the distributors’ level, increasing competition

and increased regulatory scrutiny in global markets.

Patent, Compulsory Licensing and Indian Economy

The issue of compulsory licensing and generic drugs necessarily

occupy the domain of patents. The word “Patent” is derived from Latin

word “litteraepatentes” meaning an open letter which means a document

issued by or in the name of the sovereign, addressed to all subjects and

with the great seal pendant at the bottom of the document so that it can

be read without breaking the seal5. In 1416, the Great Council of Venice

awarded the first patent for a technological invention to Sir Franciscus

Petri of Rhodes. In India, the Patents Act, 1970 does not define what a

patent is; instead it just says that a patent means a patent for any

invention granted under the Act, which does not give a clear picture

about the meaning of the term patent. But section 2(1) (m) of the Patent

5 Philip W. Grubb, Patents for Chemicals: Pharmaceuticals and Biotechnology, 4th ed., Oxford University Press, 2004, p.3.


141

Act provides that a patent may be granted for an “invention”. Further the

definition of invention provided under Section 2 (1) (j), means a new

product or process involving an inventive step and capable of Industrial

application. Thus, “New”, “Inventive step” and “industrial application”

are three requirements for patentability. Patents are perhaps the most

important legal instruments for protecting intellectual property rights. To

be patentable, an innovation must be novel in the sense of not

constituting part of the prior art or more generally of not being already in

the public domain. A patentable innovation also must involve an

inventive step, meaning that it must be non-obvious to a person with

ordinary skills in the particular field of application. The innovation also

must be useful to be patentable; that is, it must permit the solution of a

particular problem in at least one application.

Where the license is granted by the patentee itself or under his

authority it is known as voluntary license. However, where it has not

been so granted but is granted by the government in accordance with

provisions of the given Act, it is known as compulsory license.

Compulsory license generally could be granted for any matter protected

by a patent. It may be a product patentor a processpatent and the

products obtained directly by that process such as medicines, drugs,

foods etc. Article 31 of TRIPS (which pertains to use without

authorization of the right holder) lays down the set of conditions that

govern the use of compulsory licensing by WTO members, the most

important of which are the following:

(a) the entity (company or government) applying for a compulsory

license should have been unable to obtain a voluntary license from the

right holder on "reasonable" commercial terms;

(b) if a compulsory license is issued, adequate remuneration must

be paid to the patent-holder;

(c) a compulsory license must be granted mainly to supply the

domestic market6.

6 Supra n. 4 page no. 433.

KJLS VOL. VIII

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In 2003, the General Council of the WTO adopted the decision on

implementation of paragraph 6 of the Doha Declaration on the TRIPS

and Public Health, which finally resulted in the form of protocol to

amend TRIPS Agreement in 2005. The paragraph 6 decision amended

the Article 31(h) obligation and allowed the member countries to issue

compulsory license for export of patented pharmaceutical products to the

countries with insufficient or no manufacturing capabilities in this

sector.

In respect of above provisions of TRIPS, sections 84 to 92 A of

Indian Patent Act, 1970 provide for with compulsory licensing, where

sec. 92A, inserted with the 2005 Amendment, was designed to take into

account the main objectives as outlined in the fourth Ministerial

Conference, 2001 held in Doha. In accordance with Section 84(1) of the

Indian Patent Act, 1970, after three years from the grant of a patent, any

interested person may make an application for a compulsory license on

the grounds that the patented invention:

(a) does not satisfy the reasonable requirements of the public;

(b) is not available to the public at a reasonably affordable price;

and

(c) is not worked in the territory of India.

In addition to the aforementioned grounds, according to Section 92

of the Act, compulsory licenses can also be issued suomotu by the

Controller of Patents pursuant to a notification issued by the Central

Government if there is either a “national emergency” or “extreme

urgency” or in cases of “public non-commercial use”.

However in 2004 Canada became the first country to implement the

2003 decision based on para 6 of Doha Declaration, enabled compulsory

licenses for the export of generic versions of patented drugs to countries

with calamitous public health tribulation7.India’s first ever compulsory

license was granted on March 9, 2012, to Hyderabad-based

NatcoPharma for the production of generic version of Bayer’s Nexavar,

7 HarshitaMathur, “Compulsory Licensing under Section 92A: Issues and Concerns” Journal of Intellectual Property Rights, Vol 13 Sep. 2008, p.465.


143

for the treatment of liver and kidney cancer. It was established in the

Bayer vsNatco case8 that only 2% of the cancer patient population had

an easy access to the drug and that the drug was being sold by Bayer at a

very high price of 2.8 lakh INR for a month’s treatment. Further, on the

ground that Nexavar was being imported within the territory of India,

the Indian Patent Office issued a compulsory license to NatcoPharma,

which assured that the tablets would be sold for Rs. 8,880/- per month. It

was settled that 6% of the net sales of the drug would be paid to Bayer

by NatcoPharma as royalty9. This decision raised controversies on the

grant of the same as the companies argued that developing such drugs

means investing a lot of money in R&D, time and effort and hence they

should be given the liberty to enjoy the monopolistic right over the use

of same, to earn the profit and hence balancing the cost borne during

R&D. The other argument which was raised, that the controller failed to

provide for a reasonable and affordable price as in this case. While the

controller accepted Natco’s price, the same may not be affordable for

some sections of the society10

. But the question is by granting CL is it

harming our economy? In reply to it a Global Burden of Disease Study

2015 was conducted where many countries were analysed for a period of

25 years between 1990 and 2015. India landed in the last quarter of the

index ranking 154th among 195 countries. India has performed poorly

on healthcare index in the lagging behind countries like Nepal, Bhutan

and even Bangladesh. The study funded by Bill and Melinda Gates

Foundation has revealed that India improved on its score in the index by

14.1 points during the period of 25 years, from 30.7 in 1990 to 44.8 in

2015. However, it underperformed in the areas of tuberculosis, diabetes,

8 VipinMathur, Dr. B. P. Nagori and Dr. MahendraTiwari, “Compulsory Licensing of Pharmaceuticals Patent in India:A Research Study” European Journal of Pharmaceutical and Medical Research, 2016, 3(3), p 534.

9 Bayer Corporation v. NatcoPharma Ltd., Order No. 19/2013 (Intellectual Property Appellate Board, Chennai), (Cited at 12 Jan, 2018). Available at www.ipabindia.in/Pdfs/Order-19-2013.pdf

10 AnuSinghaia and Manu Singhai, “A study of Natco v. Bayer case: its effect and current situation” MIT International Journal of Pharmaceutical Sciences, Vol. 2, No. 2, August 2016, pp. 21–23 ISSN 2394-5338 (Print); 2394-5346 (Online) © MIT Publications, pp 21-23.

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rheumatic heart diseases and chronic kidney disease11

Apart from that

India does not have manufacturing capacity to generate new drugs but

besides these touching grounds if India keeps continuing compulsory

license too freely then innovators can be deprived of the full benefit of

their monopoly rights. As a result, big pharma could be discouraged

from investing in drugs that only have a market in developing countries

for example, for conditions like malaria or dysentery. Collaborating with

companies in such countries would also become unattractive. Ultimately,

India could become isolated, with less control over drugs that may be

needed to treat their populations in the future12

.

Is Generic Drugs elevating the level of Indian Economy?

As per the World Health Organization (WHO) almost 30% of the

world population lacks access to essential medicines and figure may rise

in some countries like Africa and Asia. The cost of the drug, its

manufacturing and process of market hampers the access to medicines

and the governments in poor countries seem to be doing very little to

counter this problem. In India, the procurement price of essential

medicines is generally lower than the mean International Reference

Pricing (IRP) stillthe availability of these drugs in the public sector has

always been a problem.

Evolution of Generic Medicines in Indian Pharmaceutical sector

The Indian pharmaceutical industry is one of the fast growing

sectors of the Indian economy and has made rapid tramps over the years.

The development of pharmaceutical sector in India may be divided into

four stages. The first stage is the period before the year 1970 in which

the Indian market was dominated by foreign companies with little

domestic participation. Even Drug prices were high and ungoverned, and

11 Times of India, 19th May, 2017 “India ranks below Lanka, Bangladesh on healthcare system. Available on timesofindia.indiatimes.com/india/india-ranks-below-lanka-bangladesh-on-healthcare-index/articleshow/58742574.cms (visited on 06/03/2018)

12 Munnazzar Ahmed, Legal Implication of compulsory licensing in india- in the light of Natco v. Bayer” Lambert Academic Publishing House, 2009, First ed., P. 24.


145

profiteering was unbridled. But then with advancement of Policy

reforms and innovation with legal reforms over two decades (1955 –

1970) resulted in India becoming the zenith among developing countries

in promoting manufacturing and technological capability in pharma

products. The second stage is the period between 1970 and 1990,

during this period several domestic companies started operations; Indian

Patent Act, 1970 was enacted;the export initiatives were taken during

this period. 1990 – 2010 constituted the third stage. The generic

production from India was well recognised for its critical role in

the supply of affordable medicines in the developing world, especially

for newer drugs such as anti retrovirals (ARVs) needed in the treatment

of HIV. Also the cost of first generation HIV treatment dropped from

over $10,000 per patient per year in 2000 to $350 by 2001. In addition,

Indian manufacturers developed generic fixed-dose combinations (FDC)

that dramatically simplified AIDS treatment in resource-limited settings,

including India. During this period the liberalization led Indian

components to launch operations in foreign countries. The Patents Act

was amended in the year 2005 which led to adoption to product patents

in India. By 2005, India established itself as the global power house of

generic drug production and supply.13

The term may also refer to any

drug marketed under its chemical name without advertising, or to the

chemical makeup of a drug rather than the brand name under which the

drug is sold. The code of ethics issued by the Medical Council of India,

2002 makes obligatory for physicians to prescribe drugs by their generic

names only. Furtherthe Medical Council of India (MCI), in an

amendment to the Code of Conduct for doctors in October 2016, has

recommended that every physician “should prescribe drugs with generic

names legibly and he/she shall ensure that there is a rational prescription

and use of drugs.” A generic drug is approved only after it has met

rigorous standards established by the FDA with respect to identity,

strength, quality, purity, and potency. All generic manufacturing,

13 Generic drug is a pharmaceutical drug that is equivalent to a brand-name product in dosage, strength, route of administration, quality, performance, and intended use.

KJLS VOL. VIII

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packaging, and testing sites must pass the same quality standards as

those of brand name drugs. Besides, thegeneric drug manufacturer must

prove its drug is the same as (bioequivalent) to the brand name drugs,

and this way So India’s pharmaceutical industry is developing,

producing, and marketing generic drugs. India’s generic domicile is now

entering into strategic alliance with global pharmaceutical companies to

strengthen their generic portfolio.India’s generic drugs account for 20

per cent of global exports in terms of volume, making India, the largest

provider of generic medicines worldwide14

.

Major investment of India’s generic medicine in International

Pharmaceutical Market – 2017

• The generics market stood at US$ 26.1 billion in 2016. Indian

pharmaceutical companies received record 300 generic drug approvals in

USA where the generic market is expected to reach US$ 88 billion by

202115

.

• India’s largest drug maker Sun Pharmaceutical Industries

Limited has entered into a distribution agreement with Japan's

Mitsubishi Tanabe Pharma Corporation to market 14 prescription brands

in Japan16

.

• Abbott Laboratories, a global drug maker based in US, plans to

set up an innovation and development center (I&D) in Mumbai, which

will help in developing new drug formulations, new indications, dosing,

packaging and other differentiated offerings for Abott's global branded

generics business17

.

• Lupin is the seventh largest generic pharmaceutical company

globally in terms of market capitalization. Lupin Limited planned to file

14 AmanpreetKaur and ChaturvediRekha,“Compulsory Licensing of Drugs and pharmaceuticals: Issues and Dilemma” Journal of Intellectual Property Rights, Vol. 20, Sep. 2015, pp 279-287.

15 www.ibef.org/download/Pharmaceuticals-February-2018.pdf 16 The Hindu, 06/09/2016 Available on www.the hindu businessline.com

/companies/ sun-pharma-inks-distribution-pact-with-mitsubishi-tanabe/ article21675025.ece1 (Visited on 23/03/2018)

17 Supra n 14.


147

its first bio similarEtanercept for approval in Japan, world’s second

largest drug market, in 201718

.

• In March 2017, Lupin received an approval from United States

Food and Drug Administration (US FDA) to market generic version of

tobramycin inhalation solution ‘Tobi’, which is useful to treat cystic

fibrosis patients along with P. aeruginosa19

.

• Biocon is a premier biopharmaceutical company which

manufactures generic active pharmaceutical ingredients (APIs). Its total

revenue stood at US$ 633.11 million in FY17 as compared to US$

537.04 million in FY16. Consolidated revenues of the company reached

Rs 1,057.9 crore (US$ 163.41) in the third quarter of 2017- 1820

.

• Cipla Limited plans to invest around Rs 600 crore (US$ 90

million) to set up a bio similar manufacturing facility in South Africa for

making affordable cancer drugs and growing its presence in the

market21

.

• Cipla Ltd, one of the major pharmaceutical and biotechnology

companies in India, has acquired two US-based generic drug makers,

InvaGen Pharmaceuticals Inc. and Exelan Pharmaceuticals Inc., for US$

550 million, which is expected to strengthen Cipla's US business22

.

Market segment by value

India is anintriguing country and has similarity with other Asian

countries and in terms of economic growth. When there is economic

growth in terms of FDI, technology transfer in the area of health sector.

Products and their market share in the pharmaceutical Industry in India

is furnished in the following table:

Pharma products and their market share in India

Product Market Share

Anti-infective 16%

18 Ibid 19 Ibid 20 Ibid 21 Ibid 22 Ibid

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Cardiovascular 13%

Gastro Intestinal 11%

Vitamins, Minerals 8%

Respiratory 9%

Pain/analgesic 7%

Anti-diabetic 7%

Others 29%

Source: A brief report on pharmaceutical industry in India-

July(2015)23

Indian drugs are exported to more than 200 countries in the

world, with the US as the key market. Generic drugs account for 20 per

cent of global exports in terms of volume, making the country the largest

provider of generic medicines globally and expected to expand even

further in coming years24

.

Government initiative for generic medicines:

• The Government has launched ‘Jan Aushadhi Scheme’ to make

available quality generic medicines at affordable prices to all, especially

the poor, throughout the country, through outlets known as Jan Aushadhi

Stores (JASs).

• Under the Jan Aushadhi Scheme, the State Governments are

required to provide space in Government Hospital premises or any other

suitable locations for the running of the Jan Aushadhi Stores (JAS).

• Bureau of Pharma PSUs of India (BPPI) is to provide one-time

assistance of Rs.2.50 lakhs as furnishing and establishment costs, start

up cost for setting up a Jan Aushadhi Outlet.

• Any NGO/Charitable Society/Institution/Self Help Group with

experience of minimum 3 years of successful operation in welfare

23 Umesh Chandra, Sridharan and Shwetha, “Opportunities and Challenges of Indian Pharmaceutical Sector: An Overview” International Journal of scientific research and management, 2016 Volume, 4, Issue 06 , p. 4294.

24 Ibid


149

activities, can also open the Jan Aushadhi store outside the hospital

premises. A margin of 16% on the sale price is built in the MRP of each

drug.

• In addition, the JAS are eligible for incentive linked to sale of

medicines @ 10% of monthly sales amount, subject to a ceiling of

Rs.10,000/- pm for a period of first 12 months. In case of Stores opened

in North Eastern States and other difficult areas i.e., Naxal affected

areas/Tribal areas etc., the rate of incentive is15% of monthly sale

amount, subject to a ceiling of Rs.15,000/- per month.

• At present more than 175 Jan Aushadhi Stores have been opened

across various States/UTs. JAS are opened on the locations as requested

by the entity intending to open. The steps are also taken to open Jan

Aushadhi stores in all AIIMS, prominent Hospitals, Medical Colleges

under the Ministry of Health & Family Welfare25

.

Other Initiatives:

• In March 2018, the Drug Controller General of India (DCGI)

announced its plans to start a single-window facility to provide consents,

approvals and other information. The move is aimed at giving a push to

the Make in India initiative.

• The Government of India is planning to set up an electronic

platform to regulate online pharmacies under a new policy, in order to

stop any misuse due to easy availability.

• The Government of India unveiled 'Pharma Vision 2020' aimed

at making India a global leader in end-to-end drug manufacture.

Approval time for new facilities has been reduced to boost investments.

• The government introduced mechanisms such as the Drug Price

Control Order and the National Pharmaceutical Pricing Authority to deal

with the issue of affordability and availability of medicines.

25 janaushadhi.gov.in/data/new_businessplan.pdf ( visited on 04/04/2018)

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Conclusion

The wealth of a nation is said to depend upon the health of its

citizens. Provision of public health care has been a major concern not

only for the third world countries but also for developed countries. These

health issues have been raised not onlythrough international treaties and

conventions but also Constitutions and municipal laws of many states

acknowledging the importance of a healthy life. Despite criticism and

drawbacks of compulsory licensing, the right of sovereign states to grant

a compulsory license has been effectively recognized at international

level, in order, to avoid misuse of monopoly rights but itis harming our

Indian economy as it is restricting invention exploration. India had been

struggling since 1970 for manufacturing generic drugs which made India

to produces more than 20% of the world’s generics, showing that way

considerable manufacturing expertise.The Indian government has taken

many steps to reduce costs and bring down healthcare expenses. Speedy

introduction of generic drugs into the market has remained in focus and

is expected to benefit the Indian pharmaceutical companies. In addition,

the thrust on rural health programmes, lifesaving drugs and preventive

vaccines also augurs well for the pharmaceutical companies. These all

initiatives are necessary to boost our Indian economy in respect of

generic medicines.

Dr. S Z Amani*

NishaDhanrajDewani**

* Associate Professor, Department of Law, JamiaMilliaIslamia. ** Research Scholar, Department of Law, JamiaMilliaIslamia.

Role of CSR in Preservation of Forests in the State of J and K: A Critical Appraisal

Abstract

The growing concern for adopting environmental friendly

approach in using the resources has gained momentum even in

commercial sector; therefore, CSR initiatives are encouraged to

reconcile environment and development. This paper is a humble attempt

to explore the newer dimensions of CSR and its link and scope in the

Forest Protection in J&K.

Keywords: CSR, Companies (Accounts) Rules, Baghliar,

CDM, medicinal plants, indigenous

Introduction

“Man is both creature and moulders of his environment, which

gives him physical substance and affords him the opportunity for

intellectual, moral, social and spiritual growth”.1 International concern

for environment protection and sustainable development is

comparatively of recent origin. The UN Conference on Human

Environment and Development at Stockholm in 1972 was the first time

when the world community got together to discuss environmental

concerns and is considered to be the Magna Carta of environment

protection and sustainable development. This conference resulted in the

“Stockholm Declaration on the Human Environments.” Principle 1 on

the Declaration rightly stated that “man has the fundamental right to

freedom, equality, and adequate conditions of life, in an environment of

a quality that permits a life of dignity and wellbeing, and he bears a

solemn responsibility to protect and improve the environment for present

and future generations”.2 The Montreal Protocol, 1987(ozone treaty),

3

1 The preamble of the United Nations Declaration on Human Environment, adopted in Stockholm in June 1972.

2 Jaiswal, P.S. Environmental Law, p:16, (3rd edition, Allahabad Law Agency, 1559 Outram Lines, Near Kingsway /Camp, Delhi 110009)

3 The Montreal Protocol on Substances that Deplete the Ozone Layer(a protocol to the Vienna Convention for the Protection of the Ozone Layer)

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the Brutland Commission Report of 1987 on sustainable development,4

the Earth summit of 1992 at Rio De Jenario,5 the UN framework

Convention on Climate Change of 1992,6 Earth summit of Johannesburg

in 2002,7 the Kyoto Protocol on climate change 2005,

8 are some of the

significant international initiatives towards the environmental protection

and preservation at global level.

At national level, the 42nd amendment9 in the Constitution has

imposed the duty on the State and the citizens to protect and improve

is an international treaty designed to protect the ozone layer by phasing out the production of numerous substances that are responsible for ozone depletion. It was agreed on 16 September 1987, and entered into force on 1 January 1989, followed by a first meeting in Helsinki, May 1989.

4 Our Common Future, also known as the Brundtland Report, from the United Nations World Commission on Environment and Development (WCED) was published in 1987. Its targets were multilateralism and interdependence of nations in the search for a sustainable development path. The report sought to recapture the spirit of the Stockholm Conference - which had introduced environmental concerns to the formal political development sphere. Our Common Future placed environmental issues firmly on the political agenda; it aimed to discuss the environment and development as one single issue.

5 The United Nations Conference on Environment and Development (UNCED), also known as the Rio de Janeiro Earth Summit was a major United Nations conference held in Rio de Janeiro from 3 to 14 June 1992. An important achievement of the summit was an agreement on the Climate Change Convention which in turn led to the Kyoto Protocol and the Paris Agreement. Another agreement was to "not to carry out any activities on the lands of indigenous peoples that would cause environmental degradation or that would be culturally inappropriate".

6 The objective is to "stabilize greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system"

7 The World Summit on Sustainable Development, WSSD or ONG Earth Summit 2002 took place in Johannesburg, South Africa, from 26 August to 4 September 2002. It was convened to discuss sustainable development by the United Nations.

8 The Kyoto Protocol is an international agreement linked to the United Nations Framework Convention on Climate Change, which commits its Parties by setting internationally binding emission reduction targets.

9 This amendment introduced Article 48A and 51A (g) in the Constitution of India to give constitutional recognition to the preservation of environment.

ROLE OF CSR IN PRESERVATION OF FORESTS IN J & K

153

environment, by adding article 48A to the directive principle of state

policy and 51A (g) as a fundamental duty. These insertions have acted as

the foundations for building up environmental jurisprudence in the

country. Apart from the constitutional mandate, some of the significant

environment friendly legislations are, the Wildlife (protection)Act, 1972,

Water (prevention and control of Pollution) Act, 1974, the Forest

Conservation Act, 1980, the Air (Prevention and Control of Pollution)

Act, 1981, the Environment Protection Act, 1986 and National Green

Tribunal Act, 2010. At the same time the judiciary in India has played a

pivotal role in interpreting the laws in such a manner which not only

helped in protecting environment but also in promoting sustainable

development and evolving environmental jurisprudence. Similarly the

formulation of the doctrines of absolute liability or no fault liability and

doctrine of public interest are the watershed developments in enhancing

the role of corporate social responsibility vis-à-vis promotion of healthy

environment for the mankind.

Corporate Social Responsibility: An Overview.

Corporate Social Responsibility is a concept whereby commercial

establishments i.e. companies undertake to help in social progress by

promoting social development, involving in philanthropy, eradicating

poverty, contributing in health and environmental sector, developing

drinking and hygienic facilities etc. It is a continuing commitment by

business to behave ethically and contribute to economic development

while improving the quality of life of workforce and their families as

well as of the local community and society at large.10

The main aim of

corporate social responsibility is to operate in economically, socially and

environmentally sustainable manner. CSR is based on the idea that

successful profitable corporations should take the responsibility for

social issues and balance between profit motive and resolution of the

social problems.

10 Lord Holmes, Richard Watts, Making Good Business Sense, World Business Council for Sustainable Development, January 2000, p.10.

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CSR emerged in four phases11

since its inception as a concept in

India. In the first phase charity and philanthropy were the main focus of

CSR. Wealthy merchants used to share part of their wealth with different

sections of society for religious and famine cause. In the second phase

the industrialists started to focus on progress of the society in terms of

social reforms. The third phase of CSR had its relation to the element of

mixed economy emergence of PSUs and laws relating to labor and

environmental standards. Public sector was seen prime mover of

development. The fourth phase started with emergence of globalization

and economic liberalization which resulted growth and momentum of

the economy thereby helped India companies grow rapidly which made

them more willing to contribute towards social cause and environmental

standards.

Evaluating and modifying environmental management practices

keeping in view regulatory requirements, community concerns and

technological advancements is the new dimension of CSR. The right to

life with dignity has been recognized as one of the fundamental rights in

all the global charters. Thus CSR concept involves notions of human

welfare and emphasizes a concern with the social dimensions of the

business activity that have direct connection with the quality of life in

the society. It is a concept whereby the companies integrate social and

environmental concern in their business operations and in their

interactions with the stakeholders on a voluntary basis. The main

function of an enterprise is to create value through producing goods and

services that society demands, thereby generating profit for its owners

and shareholders as well as the welfare of the society, particularly

through the ongoing process of job creation. Social responsibility

includes the acceptance of a moral imperative to recognize the duties

and obligations arising from a company’s relationship with all important

stakeholders and society at large beyond consideration of profit. It

incorporates decision making in the business with ethical and social

11 Gupta, Dr. Bhavish & Gupta, Dr. Meenu, Environment and CSR: A Constitutional Perspective; Amity Law Review (Vol. 9) 2013, page no 85


155

considerations in view complied with the legal requirements and respect

for people and communities and environment. Under Corporate Social

Responsibility actives the companies may undertake to take steps

towards protection of national heritage, art and culture, sports activities,

socio economic development of backward classes, rural development

projects minorities and women.12

The Companies (Accounts) Rules,

2014 lays down that the disclosure of contents of CSR policy in the

Board’s report and on the Company’s website shall be as per annexure

attached to the Companies (Corporate Social Responsibility Policy)

Rules, 2014. The Companies (CSR Policy) Rules, 2014 lays down rules

regarding CSR, CSR activities, Committees, policy, expenditure,

reporting and its disclosure. It is pertinent to mention here that there is

clear Constitutional mandate13

in preserving and promoting environment

and ecology by way of directive principles and fundamental duty which

has received its full impetus through wide judicial interpretation.14

Forest Scenario in J&K

Forests of the State are spread over three broad geo-climatic zones

covering Jammu, Kashmir and Ladakh regions of the State. Vegetation

and climate can broadly be categorized into sub-tropical, temperate and

alpine zones with wide diversity of fauna and flora. More than 50% of

the plant species used in British pharmacopoeia are reported to grow in

Jammu and Kashmir. Literature indicates that 572 plant species

belonging to 109 different families have medicinal value. The recorded

Forest area is 20230 Sq. Kms. which constitutes 19.95 % of

geographical area of the State. Forests are largely distributed in Kashmir

Valley and Jammu regions. There are five forest types occurring in the

State Viz. Subtropical Dry Evergreen, Himalayan Moist Temperate,

12 Schedule VII of Companies Act, 2013, enforced with effect from 1-4-2014.

13 Article 48A and Article 51A (g). 14 Supreme Court of India has reiterated and reaffirmed the environmental

principles like Polluter Pay Principle, and Precautionary Principle in number of cases in India where by onus has been put on industrial units and corporate bodies to restore environment and pay costs for environmental protection.

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Himalayan Dry Temperate, Subtropical Pine and Sub-alpine and alpine

Forests.15

Agriculture is the principal sector of economy of the state

supporting about 80% of its population directly or indirectly. For

sustainable agriculture in the state, there is a need of steady increase in

the net irrigated area by different sources (canals, tanks, wells etc.)

which is only possible through potential growth and sustainable

preservation of the forest areas of Jammu and Kashmir. The state has

rich tourism potential due to presence of large number of tourist

destinations mostly comprising of forest areas. It also forms one of the

major sources of economy in the state. The wild natural resources have

an excellent potential in the state to ameliorate the social, economic and

cultural conditions of a major chunk of rural population living in

proximity with such resources by encouraging cultivation of herbal and

aromatic plants on degraded public lands or forests lands effected by

forest fires.16

Relationship of CSR with Forest Preservation in J and K

The State of Jammu and Kashmir has a Constitutional commitment

with its masses especially with the weaker sections to protect them from

social and economic injustice, abolish all exploitation, take special care

and develop productive forces in a planned manner, so as to enrich the

material and cultural life of such people.17

The State already has legal

framework for the protection of Forests in the form of several

legislations viz. Jammu and Kashmir Forest Act, 1987 Svt. J &K Forest

Conservation Act, 1997, J&K Forest Protection Force Act, 2001, J &K

Forest Sale of Timber Act, 1987 Svt.. Since these are all old laws and

new dimension of CSR and other developments and enforcements

mechanisms are not visible in these legislations.

15 J and K Forest Department, official website, http://jk forest .gov.in/geo_area .html, last accessed on 17/11/2017.

16 Dar, M.Ayub, Indigenous Medicinal Plants and the People Modulating Conservation and Law in J& K, Kashmir University Law Review 2000, p.18.

17 See the Constitution of Jammu and Kashmir, Sections, 13, 14 and 23.


157

As such the horizon of CSR policies in the state is needed to be

expanded beyond conventional initiatives like eradicating poverty;

promoting education and health, organizing community programmes and

woman empowerment. Keeping this in view, the CSR policies in the

state must ensure incorporation of environment friendly policies to

create infrastructure for far flung areas through environment

conservation measures like afforestation programmes, providing solar

energy, establishment of eco parks, better sanitation and preservation of

medicinal plants. The CSR initiatives shall have sustainable livelihood

programmes aimed at providing livelihood in the locally appropriate and

environmentally sustainable manner. The general notion has evolved all

over that the downtrodden of society cannot be reached only by the

government. Therefore corporate sector has also a responsibility to pitch

in this effort. It can be said that in CSR the first major player is

company or corporate sector though the people in general need to

cooperate subsequently to get the rich benefits of CSR initiatives and

goals. The topography of the State provides extensive network of canals

and streams. The State is bestowed with huge hydroelectric potential

which if exploited fully will provide a strong thrust to economy of the

State. Micro/Mini Hydropower have tremendous potential for generation

of electricity in the State. No doubt power is generated on canals and big

dams and rivers, like we have Baghliar power project, Kishanganga and

NHPC in Uri. However the deforestation on account of accessing to

those water bodies is to be seen. The pace at which trees fell to axe in

these areas to install electricity plants, poles and infrastructure has not

damaged the forest areas but have displaced even habitat of the area by

macdamisation and construction. Major power projects of the State of J

and K are under the control of central government which are yet to be

fully returned to the state. Every developmental activity is to be

environmental friendly in all aspects. Generating electricity in the State

is welcome step and State has a potential but it needs a bigger role of

CSR in such scenario as well.

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The importance of Forests of Jammu and Kashmir as the home to

the medicinal plants and its connection with indigenous population is

another area where the role of CSR can be looked at. 18

The historical

links of the people with wild type of resources and their traditional

conservative benefit sharing with each other and search for an alternative

paradigm which could replace the existing legally sponsored isolation

and alienation of people from valuable biological resources and their

conservation as to make out a workable people friendly alternative to be

adjusted in the legislation. People of the state were indigenously

connected and accessed with the wild plants especially the medicinal

herbs and forest produce which had developed expertise among the local

population. However the enactment of Forest Act, 1930 ha commenced a

centralized and commerce oriented management of natural resources.

The Act strictly regulates the access of local communities to forests. The

Act is not based on any scientific and detailed understating of the actual

requirements and on the carrying capacity of the area.

Walter L Lawrence the famous historian and writer on Kashmir

who is more credited with documenting the customary practices of

Kashmiri people, states: “Hakims have a considerable knowledge of

herbs and their herb collectors are the shepherds who spend the summer

on the high mountains where most valued plants are found…besides the

professional hakims there are many wise women in the villages who

have considerable knowledge of the properties of herbs, and nearly

every peasant seems to know something about the medicinal powers of

plants.”19

CONCLUSION

CSR as a concept has failed to get serious legislative backing yet.

The legislations passed so far actually are more focused on

environmental protections rather than obliging any corporate body to

start doing social responsibility. It seems legislations are individual

18 Supra 16, p:18. 19 Lawrence, Walter R, The Valley of Kashmir 1996 edition, Kashmir Kitab

Ghar. Jammu Tawi at p. 347. As referred by the author; ibid


159

oriented vis a vis environment like air, water, noise, rather than

collectively towards companies. Section 15 &16 of EPA, 1986 hold

companies liable for the actions which are in violations of EPA.

However, EPA has not incorporated CSR as a tool yet, rather it has

included mere imposition of corporate criminal liability. It is submitted

that it is actually after the passage of the Companies Act, 2013 the

mandate for corporate social responsibility (CSR) has been formally

introduced to the dashboard of the Boards of Indian companies.20

The companies do undertake 2% of profit to spend on the

community but actually they shun away by doing very less without

making efforts on ground in that direction. The role of CSR in the State

of Jammu and Kashmir is very challenging especially in the forest

sector. Even the government based corporate sector has been under

taking different development projects e.g. Krishan Ganga project at the

behest of forest area. The railway network has also expanded in the state

especially in the Valley. However the more dominated being the

telecommunication companies which have spread their wide mobile

networks in entire state even to far flung areas to improve the network of

telecommunication and other media of interactions to entire state. The

local laws on forests and environment in the state are in large number,

yet more focused on revenue, less on preservation. The Jammu and

Kashmir Forest Act 1930 considers wild trees, timber and forest produce

as an important source of revenue. Along with it some important herbs

and medicinal plants continue to be regarded as minor forest produce.21

The laws have become defunct being less effective and least implanted.

The local communities’ accessibility is very restricted to forest areas.

However, it is pertinent to mention that most of the communities

residing in or nearer the conservation areas belong to the lowest

economic strata with their surrounding habitat the only hope for

survival. The perpetual lease and license mechanism which has been

adopted vis-à-vis forests and activities related to them have also hurt the

20 Section 135 of companies Act, 2013 21 Section 2 of the Jammu and Kashmir Forest Act, 1930.

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forest protection. No doubt the increase in population has multiplied the

problem of resource depletion. The rural and the tribal people too are

making a greater use of the forest resources than they did in the past but

this has been marginal when compared to the demand by the industries

and the urban sector. Therefore, it can be seen that there are many levels

and aspects in forest preservation and protection. The effort of CSR can

be divided and rotated in multidirectional multifunctional aspects of

forests.

“If people destroy something replaceable made by mankind, they

are called vandals; if they destroy something irreplaceable made by

God, they are called developers.” (Joseph Wood Crutch)

Ryhana Farooq*

* Lecturer Kashmir Law College, Nowshera, Srinagar.

RIGHT TO HEALTH IN INDIA: A JUDICIAL EXPOSITION

Abstract

Lately, there has been an attempt to link health rights with the

human rights that is reflected in the international agreements, human

right declarations and various international instruments. The grounding

of human rights component into health component makes it a social,

economic as well as political right. Thus, it is agreed that the right to

health is a basic human right that needs to be guaranteed to the people

for their overall development and enjoyment of quality life with dignity.

And the Judicial Institutios of different jurisdictions has through their

Judicial activism has have time and again fought fot it. With this, the

entitlement and legal binding arise that obliges the states to provide

universal health care as a basic fundamental right. It further provides

means to address the issues of inequality, inaccessibility and

discrimination over health related issues. The constitution of the World

Health Organization defines health as the enjoyment of the highest

attainable standard of health. As per the preamble of WHO, health is

physical, mental and social wellbeing and not mere absence of disease

or infirmity. Article 25 of the United Nation's Universal Declaration of

Human Rights (UDHR) endorses that "Everyone has the right to a

standard of living adequate for the health and well-being of himself and

of his family, including food, clothing, housing and medical care and

necessary social services”. Thus, UDHR attempted to guarantee health

as a fundamental human right encompassing economic, political, social

and cultural rights that are inseparable and interdependent. This Article

therefore is an attempt to highlight the discontent expressed by the

Judicial machinery of India whereby they have given number of

judgements through which they have stressed on issues of securing of

Health Rights of Indian citizens should be paramount to all, maintaining

professionalism in medical practices; declaring right to health as

fundamental right, National Health Policy and on like issues.

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Keywords: Judicial Activism; Medicine; Health

rights;Clinical trials; Human rights.

Introduction

Health is one of the goods of life to which man has a right;

wherever this concept prevails the logical sequence is to make all

measures for the protection and restoration of health to all, free of

charge; medicine like education is then no longer a trade - it becomes a

public function of the State ...

“Henry Sigerist”

The Preamble of Indian Constitution aims to secure to all its citizen

justice and equality, meaning thereby the Constitution guarantee

availability, accessibility and affordability of health care as accorded

under the Alma Ata Declaration for primary health care1. The provisions

under fundamental rights that endorse equality of opportunity in

education, employment and freedoms guaranteed have direct bearing on

the health outcomes. Article 21 has been interpreted to accommodate

health right as a fundamental right, where the State is obliged to provide

necessary health care services to its citizens. The provisions under the

Directive Principle of State Policy though non- justiciable, often guides

the policy makers and the Government to take necessary welfare

measures for securing the health rights of its citizens. Articles 392, 41

3,

1 TO, A. (2003). Health for all beyond 2000: the demise of the Alma-Ata Declaration and primary health care in developing countries. The Medical Journal of Australia, 178(1), 17-20.

2Art 39 reads: The State shall, in particular, direct its policy towards securing : (a) that the citizens, men and women equally, have the right to an adequate

means to livelihood; (b) that the ownership and control of the material resources of the community

are so distributed as best tosubserve the common good; (c) that the operation of the economic system does not result in the

concentration of wealth and means ofproduction to the common detriment; (d) that there is equal pay for equal work for both men and women; (e) that the health and strength of workers, men and women, and the tender

age of children are not abused andthat citizens are not forced by economic necessity to enter avocations unsuited to their age or strength;

(f) that children are given opportunities and facilities to develop in a healthy manner and in conditions offreedom and dignity and that childhood and

RIGHT TO HEALTH IN INDIA: A JUDICAIL EXPOSITION

163

424 and 47

5 under the Directive Principle of State Policy refer to the

health related provisions. Article 47 directs the state to maintain a level

of nutrition and standard of living of its people and improvement of

public health as its primary duty. Under the Aricle 51A (g) of

Fundamental duties, the citizens are duty bound to protect and promote

environment including forests, lakes, rivers and wildlife. Entry 6 of List

II6refers to public health and sanitation; hospital and dispensaries.

Further, Entry 29 of List III7empowers the State as well as the Centre

to frame laws for the prevention of the extension from one State to

another of infectious or contagious diseases or pests affecting men,

animals or plants.

The Indian judiciary has interpreted the right to health in many

ways through public interest litigation as well as litigation arising out of

claims that individuals have made in the State, with respect to health

services, etc. As a result, there is a substantial case laws in India, which

shows the gamut of issues that are related to health.

i. Conceptual outline of Right to Health through Judicial

Scrunity

Health as stated earlier is a state of complete physical, mental and

social well being. The term ‘health’ implies more than mere absence of

sickness. The Apex Court in India has played a significant role in the

realization of the right to health by recognizing the right as a part of the

fundamental right to life and issuing suitable directions to the State

authorities for the discharge of their duties. The Court has recognized

youth are protected against exploitation and against moral andmaterial abandonment.

3 Art 41 reads: Right to work, to education and to public assistance in certain cases. The State shall, within the limits of itseconomic capacity and development, make effective provision for securing the right to work, to educationand to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases ofundeserved want.

4 Art 42 reads: The State shall make provision for securing just and humane conditions of work and for maternity relief.

5 Art 47 reads: The State shall regard the raising of the level of nutrition and the standard of living of its people and theimprovement of public health as among its primary duties and, in particular, the State shall endeavour tobring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugswhich are injurious to health.

6 State List. 7 Concurrent List.

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that maintenance of health is a most imperative constitutional goal

whose realization requires interaction of many social and economic

factors8.

In this context the theory of the inter-relatedness between rights

was famously articulated in the Maneka Gandhi’s9decision. This

became the basis for the subsequent expansion of the understanding of

the ‘protection of life and liberty’ under Article 21 of the Constitution of

India. The Supreme Court of India further went on to adopt an approach

of harmonization between fundamental rights and directive principles in

several cases.

With regard to health, a prominent decision was delivered in

Parmanand Katara vs. Union of India10. In this case, the court was

confronted with a situation where hospitals were refusing to admit

accident victims and were directing them to specific hospitals designated

to admit ‘medico-legal cases’. The court ruled that:

“While the medical authorities were free to draw up administrative

rules to tackle cases based on practical considerations, no medical

authority could refuse immediate medical attention to a patient in need.”

The court relied on various medical sources to conclude that such a

refusal amounted to a violation of universally accepted notions of

medical ethics. It observed that such measures violated the ‘protection of

life and liberty’ guaranteed under Article 21 and hence created a right to

emergency medical treatment11.

Another significant decision which strengthened the recognition of

the ‘right to health’ was that in Indian Medical Association vs. V.P.

Shantha12. In that case, it was ruled that the provision of a medical

service (whether diagnosis or treatment) in return for monetary

8 Justice R. K., Abichandani, ‘High Court of Gujurat Report’, Ahmedabad, 2004

9 AIR 1978 SC 597 10 AIR 1989 SC 2039. 11 Commentary cited from: Arun Thiruvengadam, ‘The Global Dialogue

Among Courts: Social Rights Jurisprudence of The Supreme Court of India from a Comparative Perspective’ in C. Raj Kumar & K. Chockalingam (eds.), Human Rights, Justice and Constitutional Empowerment, Oxford University Press, New Delhi, 2007 p. 283

12 AIR 1996 SC 550


165

consideration amounted to a ‘service’ for the purpose of the Consumer

Protection Act, 1986. The consequence of the same was that medical

practitioners could be held liable under the act for deficiency in service

in addition to negligence. This ruling has gone a long way towards

protecting the interests of patients. However, medical services offered

free of cost were considered to be beyond the purview of the said Act.

With regard to the access and availability of medical facilities, the

leading decision of the Supreme Court was given in Paschim Banga

Khet Mazdoor Samiti vs. State of West Bengal13. The facts that led to

the case were that a train accident victim was turned away from a

number of government-run hospitals in Calcutta, on the ground that they

did not have adequate facilities to treat him. The said accident victim

was ultimately treated in a private hospital, but the delay in treatment

had aggravated his injuries. The Court realized that such situations

routinely occurred all over the country on account of inadequate primary

health facilities. The Court issued notices to all State governments and

directed them to undertake measures to ensure the provision of minimal

primary health facilities. When confronted with the argument that the

same was not possible on account of financial constraints and limited

personnel, the Court declared that lack of resources could not be cited as

an excuse for non-performance of a constitutionally mandated

obligation. The Court set up an expert committee to investigate the

matter and endorsed the final report of the said committee. This report

contained a seven-point agenda addressing several issues such as the

upgrading of facilities all over the country and the establishment of a

centralized communications system amongst hospitals to ensure the

adequacy and prompt availability of ambulance equipment and

personnel. Some commentators have argued that by recognizing a

governmental obligation to provide medical facilities, the Court has

created a justiciable ‘right to health’.

The judgment of the Supreme Court in Nilbati Behra v. State of

Orissa14case holds that in view of the fundamental right to life (Article

13 AIR 1996 SC 2426 14 AIR 1993 SC 1960.

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21 of the Constitution)15the Government cannot claim ‘sovereign

immunity’ from liability for the negligence of its employees.

The right to health and health care is protected under Article 21 of

the Constitution of India, as a right to life and reach of which can move

the Supreme Court or High Court through writ petition. The practice of

medicine is capable of rendering great service to the society provided

due care, sincerity, efficiency and skill are observed by doctors. When

doctors performed their duties towards the patient negligently in a

Government hospital, the servants of the state violated the fundamental

right of the patient, guaranteed under Article 21 of the Constitution.

ii. Right to health care under the spirit of Article 21

The Fundamental Right to Life, as stated in Article 21 of the Indian

Constitution,guarantees to the individual his/her life which or personal

liberty except by a procedure established by law. The Supreme Court

widely interpreted this fundamental right and has included in Article 21

the right to live with dignity and “all the necessities of life, such as

adequate nutrition, clothing….” It has also held that the act which affects

the dignity of an individual will also violate his/her right to life.

The Constitution incorporates provisions guaranteeing everyone’s

right to the highest attainable standard of physical and mental health.

Article 21 of the Constitution guarantees protection of life and personal

liberty to every citizen. The Supreme Court in Bandhua Mukti Morcha

vs. Union of India16

, has held that:

“The right to live with human dignity, enshrined in art 21, is

derived from the directive principles of state policy and therefore

includes protection of health.”

In Vincent Panikulangara vs. Union of India17

, the Supreme Court

of India on the right to health care observed:

“Maintenance and improvement of public health have to rank high

as these are indispensable to the very physical existence of the

community and on the betterment of these depends the building of the

15 Bakshi, P.M., Right to Life and Personal Liberty, “The Constitution of India”, Universal Law Publishing Co. Pvt. Ltd., New Delhi, 2003

16 AIR 1984 SC 802 17 AIR 1987 SC 990


167

society of which the Constitution makers envisaged. Attending to public

health in our opinion, therefore, is of high priority-perhaps the one at

the top”.

In a historic judgment in Consumer Education and Resource

Centre vs. Union of India18

, the Supreme Court has held that:

“The right to health and medical care is a fundamental right under

Article 21 read with Articles 39(c),41,43 of the constitution as it is

essential for making the life of the workman meaningful and purposeful

with the dignity of the person. “Right to life” in Article 21 includes

protection of the health and strength of the worker. The expression ‘life’

in Article 21 does not connote mere animal existence or continued

drudgery through life. It has a much wider meaning which includes the

right to livelihood, better standard of life, hygienic conditions on

workplace and leisure”.

The court further held that:

“The State, be it Union or State Government or an industry, public

or private is enjoined to take all such action which will promote health,

strength and vigour of the workman during period of employment and

leisure and health even after retirement as basic essentials to life with

health and happiness. The right to life with human dignity encompasses

within its fold, some of the finer facets of human civilization which

makes life worth living.”19

In Kirloskar Brothers Ltd vs. Employees State Insurance Corpn20

,

the Supreme Court, following the Consumer Education and research

Center’s case, has held that ‘right to health’ is a fundamental right of

the workmen.

The Court also held that this right is not only available against the

State and its instrumentalities, but even private industries to ensure to the

workmen to provide facilities and opportunities for health and vigour of

the workman assured in the provision of Part IV of the Constitution,

which are integral part of the right to equality under Art 14 and right to

18 AIR (1995) 3 SSC, 42. 19 Ibid. at 53 20 (1996) 2 SCC 682 .

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invigorated life under Article 21 which are fundamental rights to the

workmen21.

Further in, State of Punjab and Others vs. Mohinder Singh

Chawla22 it has been held that the right to health is integral to right to

life. Government has a constitutional obligation to provide health

facilities.

The Supreme Court, while examining the issue of the constitutional

right to health care under arts 21, 41 and 47 of the Constitution of India

in State of Punjab vs. Ram Lubhaya Bagga23

,observed that the right of

one person correlates to a duty upon another, individual, employer,

government or authority.

The court further held:

“The right of a citizen to live under art 21 casts an obligation on

the state. This obligation is further reinforced under art 47; it is for the

state to secure health to its citizens as its primary duty. No doubt the

government is rendering this obligation by opening government

hospitals and health centers, but to be meaningful, they must be within

the reach of its people, and of sufficient liquid quality. Since it is one of

the most sacrosanct and valuable rights of a citizen, and an equally

sacrosanct and the sacred obligation of the state, every citizen of this

welfare state looks towards the state to perform this obligation with top

priority, including by way of allocation of sufficient funds. This in turn

will not only secure the rights of its citizens to their satisfaction, but will

benefit the state in achieving its social, political and economic goals.24

.”

iii. Different dimensions of the right to health: Some Case

studies

Apart from recognizing the fundamental right to health as an

integral part of the Right to Life, there is sufficient case law, both from

the Supreme Court and the High Courts on the various facets of the

right to health. While dealing with the issue of the fundamental right to

health and health care the courts have also dealt with specific categories

21 Ibid. 22 AIR (1997) 2 SCC 83. 23 (1998) 4 SCC 177: AIR 1998 SC 1703,para 26. 24 Ibid.


169

such as under trials, convicts and mentally ill persons. The courts have

recognized that imprisonment does not deprive a person of the right to

health and health care.

1. Right to Health Care as a Fundamental Right

The Supreme Court in, Paschim Banga Khet Mazdoor Samity &

Ors vs. State of West Bengal & Ors25,while widening the scope of art 21

and the government’s responsibility to provide medical aid to every

person in the country, held that:

“In a welfare state, the primary duty of the government is to secure

the welfare of the people. Providing adequate medical facilities for the

people is an obligation undertaken by the government in a welfare state.

The government discharges this obligation by providing medical care to

the persons seeking to avail of those facilities. Article 21 imposes an

obligation on the state to safeguard the right to life of every person.

Preservation of human life is thus of paramount importance. The

government hospitals run by the state are duty bound to extend medical

assistance for preserving human life. Failure on the part of a

government hospital to provide timely medical treatment to a person in

need of such treatment, results in violation of his right to life guaranteed

under Article21”.

The Court made certain additional direction in respect of serious

medical cases:

a. Adequate facilities be provided at the public health centers

where the patient can be given basic treatment and his condition

stabilized.

b. Hospitals at the district and sub divisional level should be

upgraded so that serious cases be treated there.

c. Facilities for giving specialist treatment should be increased and

having regard to the growing needs, it must be made available at the

district and sub divisional level hospitals.

d. In order to ensure availability of beds in any emergency at State

level hospitals, there should be a centralized communication system so

25 (1996) 4 SCC 37.

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that the patient can be sent immediately to the hospital where bed is

available in respect of the treatment, which is required.

e. Proper arrangement of ambulance should be made for transport

of a patient from the public health center to the State hospital.

f. An ambulance should be adequately provided with necessary

equipments and medical personnel.

g. The Health centres and the hospitals and the medical personnel

attached to these centres and hospitals are geared to deal with larger

number of patients needing emergency treatment on account of higher

risk of accidents on certain occasions and in certain seasons.

2. Professional obligation to Protect Life of Accident Victims

The Supreme Court in its landmark judgment in Paramanand

Katara vs. Union of India26,ruled that:

“Every doctor whether at a Government hospital or otherwise has

the professional obligation to extend his services with due expertise for

protecting life. No law or state action can intervene to avoid delays, the

discharge of the paramount obligation casts upon members of the

medical profession. The obligation being total, absolute, and paramount,

laws of procedure, whether in statutes or otherwise, which would

interfere with the discharge of this obligation cannot be sustained, and

must, therefore, give way.”

The Court laid down the following guidelines for doctors, when an

injured person approaches them:

I. Duty of a doctor when an injured person approaches him:

Whenever, on such occasions, a man of the medical profession is

approached by an injured person, and if he finds that whatever assistance

he could give is not really sufficient to save the life of the person, but

some better assistance is necessary, it is the duty of the man in the

medical profession so approached to render all the help which he could,

and also see that the person reaches the proper expert as early as

possible.

II. Legal protection to doctors treating injured persons: A

doctor does not contravene the law of the land by proceeding to treat an

26 AIR 1989 SC 2039,para 8.


171

injured victim on his appearance before him, either by himself or with

others. Zonal regulations and classifications cannot operate as fetters in

the discharge of the obligation, even if the victim is sent elsewhere under

local rules, and regardless of the involvement of police.

III. No legal bar on doctors from attending to the injured

persons: There is no legal impediment for a medical professional, when

he is called upon or requested to attend to an injured person needing his

medical assistance immediately. The effort to save the person should be

the top priority, not only of the medical professional, but even of the

police or any other citizen who happens to be connected with the matter,

or who happens to notice such an incident or a situation.

3. Workers right to health care facilities

The Supreme Court has recognized the rights of the workers and

their right to basic health facilities under the Constitution, as well as

under the international conventions to which India is a party.

In its path breaking judgment in Bandhua Mukti Morcha vs.

Union of India27, the court delineated the scope of art 21 of the

Constitution, and held that:

“It is the fundamental right of every one in this country, assured

under the interpretation given to art 21 by this court in Francis Mullin’s

Case28

to live with human dignity, free from exploitation. This right to

live with human dignity enshrined in art 21 derives its life breath from

the directive principles of state policy and particularly clause (e) and (f)

of art 39 and arts 41 and 42, and at least, therefore, it must include

protection of the health and strength of workers, men and women; and

children of tender age against abuse; opportunities and facilities for

children to develop in a healthy manner and in conditions of freedom

and dignity; educational facilities; just and humane conditions of work

and maternity relief. These are the minimum requirements, which must

exist in order to enable a person to live with human dignity. No state,

neither the central government nor any state government, has the right

to take any action which will deprive a person of the enjoyment of these

basic essentials.”

27 AIR 1984 SC 802,para 10. 28 AIR 1980 SC 849

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In CESE Ltd vs. Subhash Chandra Bose29,the court held that:

“The health and strength of a worker is an integral facet of the right

to life. The aim of fundamental rights is to create an egalitarian society

to free all citizens from coercion or restrictions by society and to make

liberty available for all.”

The court, while reiterating its stand for providing health facilities

in Vincent vs. Union of India30

, held that:

“ A healthy body is the very foundation for all human activities. In

a welfare state, therefore, it is the obligation of the state to ensure the

creation and the sustaining of conditions congenial to good health.”

4. Guidelines For Holding Eye Care Camps:

In the case of A.S Mittal vs. State of Uttar Pradesh31public interest

litigation brought under article 32 of the constitutions and the allied

negligence on the part of the doctors in a free eye care camp at

Khurja. However laudable the intentions with which it might it have

been launched. The operated eyes of the patient were irreversibly

damaged owing to post-operative infection. The mishap was due to some

common contaminated source. After an inquiry it was found that it was

due to normal saline used in the eyes at the time of the operation. The

vision of 84 persons could not be restored. The court held that:

“A mistake by a medical practitioner, which no reasonably

competent and careful practitioner would have committed, is a negligent

one.”

The court further held that:

“The necessity of the highest standard of aseptic and sterile

conditions at places where ophthalmic surgery is conducted can not be

over emphasized. It is not merely on the formulation of the theoretical

standards but really on the professional commitments with which the

prescriptions are implemented that the ultimate result rests. The

government spends so much on public health, but standard of

cleanliness and hygiene are to be desired.In addition to the sum of Rs

29 AIR 1992 SC 573, para 30: 1991 (2) SCALE 996. 30 AIR 1987 SC 990. 31 (1989) 3 SCC 233: AIR SC 1570


173

5000 already paid by way of an interim relief, the State government was

directed to pay a sum of Rs 12,000 for each of the victims.”

5. Right to Health is a Fundamental Right

In CESC Ltd. vs. Subash Chandra Bose32

, the Supreme Court

relied on international instruments and concluded that the right to health

is a fundamental right. It went further and observed that health is not

merely the absence of sickness:

“The term health implies more than an absence of sickness.

Medical care and health facilities not only protect against sickness but

also ensure stable manpower for economic development. Facilities of

health and medical care generate devotion and dedication to give the

workers’ best, physically as well as mentally, in productivity. It enables

the worker to enjoy the fruit of his labour, to keep him physically fit and

mentally alert for leading a successful economic, social and cultural life.

The medical facilities are, therefore, part of social security and like gilt

edged security, it would yield immediate return in the increased

production or at any rate reduce absenteeism on grounds of sickness,

etc.”

In Occupational Health and Safety Association vs. UOI and

Ors.33, the Court held that:

“Right to Health i.e right to live in a clean, hygienic and safe

environment is a right flowing from Article 21. Clean surroundings lead

to a healthy body and a healthy mind. But unfortunately, for eking a

livelihood and for national interest, many employees work in dangerous

risky and unhygienic environment. Right to live with human dignity

enshrined in Article 21 derives its breath from DPSP, particularly the

clauses (e) and (f) of Articles 39,41 and 42. These Articles include

protection of health and strength of workers and just and humane

conditions of work. These are minimum requirements which must exist to

enable a person to live with human dignity. Every state has an

obligation and a duty to provide at least the minimum condition

ensuring human dignity. But when workers are engaged in such

32 AIR 1992 SC 573,para 31 33 Writ Petition (civil) No 79 of 2005, decided on Janaury 31, 2014.

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hazardous and risky jobs, then the responsibility and duty on the state is

double-fold.”

6. Environment Pollution is linked to Health and is violation of

right to life

In T. Ramakrishna Rao vs. Hyderabad Development

Authority34

, the Andhra Pradesh High Court observed:

Protection of the environment is not only the duty of the citizens but

also the obligation of the State and it’s all other organs including the

Courts. The enjoyment of life and its attainment and fulfillment

guaranteed by Article 21 of the Constitution embraces the protection

and preservation of nature’s gift without which life cannot be enjoyed

fruitfully. The slow poisoning of the atmosphere caused by the

environmental pollution and spoliation should be regarded as

amounting to a violation of Article 21 of the Constitution of India.

In T. Damodar Rao and others vs. Special Officer, Municipal

Corporation of Hyderabad35

,the Court, speaking through the P.A,

Choudary, J., held:

“The legitimate duty of the Courts as the enforcing organs of the

constitutional objectives to forbid all actions of the State and the citizens

from upsetting the ecological and environmental balance.”

In Virender Gaur vs. State of Haryana36

, the Supreme Court held

that:

“Environmental, ecological, air and water pollution, etc., should be

regarded as amounting to violation of the right to health guaranteed by

Article 21 of the Constitution. It is right to state that hygienic

environment is an integral facet of the right to a healthy life and it would

not be possible to live with human dignity without a humane and healthy

environment”.

Consumer Education and Research Centre vs. Union of India37

,

, the Supreme Court held that:

34 2002 (2) ALT 193 35 AIR 1987 AP 171 36 1995 (2) SCC 577 37 (1995) 3 SCC 42; See also Kirloskar Brothers Ltd vs Employees State

Insurance Corporation(AIR 1996 SC 3261)


175

“The right to health and medical care is a fundamental fight under

Article 21 read with Article 39(e), 41 and 43.”

In Subhash Kumar vs. State of Bihar38, the Supreme Court held

that:

“Right to pollution-free water and air is an enforceable

fundamental right guaranteed under Article 21.”

Similarly, in Shantistar Builders vs. Narayan Khimalal

Totame39, the Supreme Court opined that:

“The right to decent environment is covered by the right

guaranteed under Article 21.”

Further, in M.C. Mehta vs. Union of India40

, the Supreme Court

imposed a positive obligation upon the State to take steps for ensuring to

the individual a better enjoyment of life and dignity and for elimination

of water and air pollution.

It is also relevant to notice as per the judgment of the Supreme

Court in Unnikrishnan, JP vs. State of A.P41

, the maintenance and

improvement of public health is the duty of the State to fulfill its

constitutional obligations cast on it under Article 21 of the Constitution.

In Meenakshi Gautam vs. P K Pradhan & Anr42, the Delhi High

Court held that:

“At this juncture, we are only inclined to note that health is the

primary concern of any homo-sapiens and he has been fighting,

struggling and combating since the inception of accrual of knowledge or

fear with regard to health. It may sound trite that “Health is Wealth”

but sometimes, as has been said, a trite expression or a hackneyed

expression has its glorious phenomenon and the proverbial accent which

the human race can never ignore.”

7. Right to Health and Clinical Trials

38 AIR 1991 SC 420, (1991) I SCC 598 39 (1990) 2 SCJ 10, AIR 1990 SC 630, (1990) 1 SCC 520 40 AIR 1988 SC 1037; See also Rural Litigation and Entitlement Kendra vs.

State of U.P(AIR 1987 SC 359) 41 AIR 1993 SC 2178 , (1993) 1 SCC 645 42 CONT CAS(C) 137/2012 & CM APPL 3501/2013. Date of decision: 2nd

September, 2015

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The Supreme Court, in A.I. Democratic Women Association vs.

Union of India43 was dealing with a writ to ban the sale, production and

manufacture of Quinacrine in the form of pellets. It disposed the petition

on the basis that the Government was already taking steps in that

direction under section 10-A44 and section 26-A of the Drugs and

Cosmetics Act, 1945. While the petition by itself was disposed of, the

judgment is important because the Supreme Court took note of the fact

that there was a violation of the clinical trial guidelines and a symbolic

acquiescence that the Courts would not tolerate such malpractices.

InRahul Dutta vs. Union of India45, The Allahabad High Court, in

a writ petition still pending before it took cognizance of the fact that

illegal clinical trials were rampant in India. It observed that there was a

prima facie violation of the fundamental rights of human subjects,

guaranteed under Art. 21 of the Constitution, and that based on

individual cases, ss 302, 304 and 304-A of the Indian Penal Code (‘IPC’)

could be attracted. Justice Umanath Singh and Justice Rituraj Awasthi

also noted that the Court would consider awarding damages and came

down hard on pharmaceutical companies for flouting the norms on

informed consent and causing the death of subjects who were not even

aware of the fact that they were being used as guinea pigs.

Another case, which will hopefully change the dynamics of clinical

trial regulations in India, is the case of Swasthya Adhikar Manch vs.

Union of India46

.

A bench, constituted by Justice R.M. Lodha and H.L. Gokhale criti-

cized the government for its inaction in curbing illegal clinical trials

43 (1998) 5 SCC 214. 44 The Drugs and Cosmetics Act 1945, Sec 10-A, “Prohibition of import of

certain drugs or cosmetics. - From such date as may be fixed by the Central Government by notification in the Official Gazette in this behalf, no person shall import – (a) any drug or cosmetic which is not of standard quality”.

45 Misc. Bench No. 12280 of 2010. 46 Hon'ble Mr. Justice R.M. Lodha, Hon'ble Mr. Justice Anil R. Dave.

Swasthya Adhikar Manch, Indore & Anr. vs. Min. of Health & Family Welf. & Ors. WP (C) 33 of 2012, Order dated: 3rd January 2013, with W.P(C)No.79 of 2012, http://courtnic.nic.in/supremecourt/temp/wc%203312p.txt],


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wherein the poor and destitute, particularly juveniles, tribals and

Dalitswere being used as guinea pigs. The bench said,

"We will have to take a balanced approach. Nothing should be

done to stop development in the area of research of drugs and at the

same time life of people subjected to trial has to be protected".

The court was hearing two PILs filed by a group of doctors and an

NGO alleging that illegal and unethical clinical trials were being done

on poor persons including juveniles, tribals and dalits who were used as

guinea pigs for testing of drugs and vaccines produced by multinational

corporations. The petitioners had also urged the court to order formation

a Committee of Experts, consisting of members of civil society

especially, the All India Drug Action Network, to examine the present

legal provisions concerning clinical trials both the issues.

Conclusion

From the above discussion of cases it is evident that the judiciary

has clearly read into Article 21, Right to Life, the right to health. It in

fact has gone deeper into the meaning of health and has substantiated the

meaning of the right to life. Following points reflect the key aspects of

right to health47

(1) The right to health is an inclusive right:- The right to health is

frequently associated with access to health care and the building of a

hospital. This is correct, but the right to health extends further. It

includes a wide range of factors that can help us lead a healthy life. The

Committee on Economic, Social and Cultural Rights, the body

responsible for monitoring the International Covenant on Economic,

Social and Cultural Rights48, calls these the “underlying determinants of

health”. They include:

• Safe drinking water and adequate sanitation;

• Safe food;

• Adequate nutrition and housing;

47 Many of these and other important characteristics of the right to health are clarified in general comment No. 14 (2000) on the right to health, adopted by the Committee on Economic, Social and Cultural Rights.

48 The Covenant was adopted by the United Nations General Assembly in its resolution 2200A (XXI) of 16 December 1966. It entered into force in 1976 and by 1 December 2007 had been ratified by 157 States

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• Healthy working and environmental conditions;

• Health-related education and information;

• Gender equality.

(2) The right to health contains freedoms:- These freedoms

include the right to be free from non-consensual treatment, such as

medical experiments and research or forced sterilization, and to be free

from torture and other cruel, inhuman or degrading treatment or

punishment.

(3) The right to health contains entitlements:- These entitlements

include:

• The right to a system of health protection providing equality of

opportunity for everyone to enjoy the highest attainable level of health;

• The right to prevention, treatment and control of diseases;

• Access to essential medicines;

• Maternal, child and reproductive health;

• Equal and timely access to basic health services;

• The provision of health-related education and information;

• Participation of the population in health-related decision making

at the national and community levels.

(4) Health services, goods and facilities must be provided to all

without any discrimination:- Non-discrimination is a key principle in

human rights and is crucial to the enjoyment of the right to the highest

attainable standard of health. All services, goods and facilities must be

available, accessible, acceptable and of good quality:- Functioning

public health and health-care facilities, goods and services must be

available in sufficient quality within a State.

Farhat Deeba*

* Lecturer, Kashmir Law College, Nowshera, Srinagar. Email: [email protected]

KASHMIR JOURNAL OF LEGAL STUDIES

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