Sustainable Development in the light of Islam

Volume – 8

Academique An Interdisciplinary Discussion Group

Varanasi (INDIA)

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IIT-BHU


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BOARD OF EDITORS Editors in Chief

D.P. VERMA


D.K. SRIVASTAVA SIBARAM TRIPATHI

Banaras Hindu University Banaras Hindu University

AJENDRA SRIVASTAVA S.K. GUPTA

Banaras Hindu University Banaras Hindu University

INTERNATIONAL ADVISORY BOARD

MARK PERRY

University of New England, Australia

TON LIEFAARD

Leiden University, The Netherlands

WILLIAM A. SCHABAS

Middlesex University, England

JUNJI NAKAGAWA

University of Tokyo, Japan

CHRISTINA M. CERNA

Georgetown University, United States

HENRI FOUCHE

University of South Africa, South Africa

ABDUL HASEEB ANSARI

International Islamic University,

Malaysia

MIGUEL G. GARCIA-REVILLO

Universidad de Cordoba, Spain

DAVID W. TUSHAUS

Missouri Western State University,

United States

KATRIN NYMAN – METCALF

Tallinn University of Technology,

Estonia

NOBUO KOCHU

Kansai University, Japan

BRUNO MUNIER

Euro-American Institute, France

RAJ BHALA

University of Kansas, United States

DAVID WEXLER

University of Puerto Rico, Puerto Rico

SANG – MYON RHEE

Seoul National University, Korea

VALERIO MAZZUOLI

Universidade Federal de Mato Grosso,

Brazil

ANDRE NOLLKAEMPER

University of Amsterdam, The

Netherlands

YOSHIZUMI TOJO

Rikkyo University, Japan

CHIA-JUI CHENG

Xiamen Academy of International Law,

China

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Editorial

After publication of the previous issue of this research Journal in the academic

term 2012-2013, a decision was taken that policy be changed for its publication

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Editors

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UNIVERSITAS

VOLUME 8 2013

Policy Choices for Biotech

Legislative Enactments : Genetic

Modification in the Food Chain

Ramesh Karky and Mark

Perry

1-28

Evergreening : In Between

Incentives of Innovations and Public

Health

Sagar Kumar Jaiswal 29-54

Concept of Extradition Akhilesh Kumar Pandey 55-74

Corporate Social Responsibility in

India With Special Reference to the

Company Act 2013

Yashvant Singh Yadav 75-92

Decriminalization of Attempt to

Suicide and Mental Health Care Bill,

2013

Gopal Kirshna Sharma 93-106

Understanding Trade Mark Dilution

in Indian Perspective

Apurva Verma 107-120

Health Insurance : A Means to

Achieve Right to Health in India

Roochi Singh 121-134

Sustainable Development in the

Light Of Islam

Fouzia Khanam 135-156

Universitas: An academique annual | 1

(2013) 8 Universitas 1-28

POLICYCHOICES FOR BIOTECH LEGISLATIVE

ENACTMENTS: GENETIC MODIFICATIONS IN THE

FOOD CHAIN

Ramesh Karky and Mark Perry

Abstract

Perhaps the highest impact advancements from science over

the last half a century are the applications of biology and

computer sciences. However, the regulatory aspect of

biotechnology is contentious, and it is at a stage of

development. This paper covers the current issues on

regulatory aspects of genetically modified (GMO) foods,

and it examines the regulation of the nations who have

biotechnological ability and a history of GMOs for both

food and other product crops.

There are some fundamental jurisdictional differences

between GMOs and non-GM foods. GMOs are patentable in

many jurisdictions, whereas the path to patent for

conventional crops is more difficult as many have been in

production for decades. A patent gives exclusive rights to a

GMO patentee, whereas others do not have this right. Non-

GM seeds typically can be planted, replanted, saved, or sold

by farmers, but farmers do not have these same rights with

GM seeds. GM plants or crops have cross-pollination

effects and some say that they contaminate non-GM crops

(foods too), which is not usually an issue with non-GM

plants.

This paper critically examines regulation on the risk

assessment and commercialization process of genetically

modified crops/foods in Canada, US and EU. It further

looks at related cross-cutting issues such as precautionary

principle, labelling GM foods, public participation and

transparency in the decision making process and other

cross-cutting issues such as co-existence between GM crops

and non-GM crops, AP, liability, GM animal; and it

discusses policy choices for legislative enactments focusing

RAMESH KARKY ~ Faculty of Law,

Western University,

London, Canada;

[email protected]

Ramesh Karky received his SJD degree from Golden Gate University School of Law of San Francisco, United States, & LL.M. degree from Vrije Universiteit Brussels, Belgium and is currently a Postdoctoral Fellow in Law at the Western University, Canada, where his research focuses or genomics, biotech regulation and

intellectual property.

MARK PERRY

~ Faculty of Law,

University of East

England, New South

Wales, Australia;

[email protected]


Canada. It has comparative approach and it offers biotech

policy choices.

Keywords: Regulation of Genetically Modified Organisms,

Risk and Commercialisation Processes, Legislative Policy

Choices

Contents

Introduction

1. Regulation of GM Foods

(A) Commercialization and Scientific Risk

Assessment in Canada, US and EU

(B) GM Food Safety Assessment

2. GM Foods and Precautionary Principle

3. Labelling GM Foods: A Result of Choice and A

Right to be Informed

4. GM Food and Cross Cutting Issues

Conclusion

INTRODUCTION

Genetically modified (GM) food1is one of the categories

of foods available in the market. Over the last 30 years,

the field of genetic engineering has progressed

tremendously. “The term genetic engineering is used to

describe the process by which the genetic makeup of an

organism can be altered using ‘recombinant DNA

technology’”(International Service for the Acquisition of

Agri-Biotech Applications [ISAAA], 2012).With the use

of recombinant DNA technology (rDNA), scientists are

able to produce GM crops and GM foods and companies

are able to bring GM crops and GM foods into the

market. Despite the benefits of GM foods, such as high

yield, higher nutritional value, and resistance to pests and

viruses, many people have expressed health concerns over

consuming GM foods. The main “concern is that the

transfer of genes from one organism to another may result

in the transfer of allergens,” and it may make GM foods

1 Genetically modified (GM) is a commonly used tem to describe organisms that have

been developed using recombinant DNA technologies. Even though in some sense all today’s crops have been ‘modified’ through breeding over centuries, the common usage is adopted in this paper.

Mark Perry received his degrees from the United Kingdom and New Zealand, and is currently a Professor of Law at the University of New England, Australia and Professor of Law and Professor of Science at the University of Western Ontario, Canada. His expertise is in the intersection of Law and technology with emphasis on intellectual property rights, innovation, licensing and regulation in the field of biotechnology.

Acknowledgement

The authors thank RadeSajic, Matthew Frontini, Nicole Zeit, Meghan Taylor, Catherine McCorquodale, Liam Kelly and Sarah Nguyen for their research assistance and funding by the Government of Canada through Genome Canada and the Ontario Genomics Institute (OGI-046).


allergenic to certain persons(Fernandez, 2006, pp. 336-337). Particularly from health

and environment perspectives, GM crops and GM foods are contentious from the

very beginning of their introduction to present.In India the introduction of GM crops

has been highly contentious. In this paper we seek to outline the experience of other

nations that have a relatively long history of GM use for both food and other product

crops.

In Canada, GM foods have been available in the market since 1995(Canadian

Biotechnology Advisory Committee [CBAC], 2001). “The phrase ‘GM foods’ refers

generally to food produced from genetically engineered plants and animals using

recombinant DNA technology”(CBAC, 2001, p. 2).In Canada, GM foods are part of

the broader types of novel foods. Novel foods include foods produced by means of

genetic engineering as well as other means such as mutagenesis, cell fusion or

conventional cross breeding(CBAC, 2001).In general, the Canadian regulatory

system focuses on products that come within the broader categories of novel foods

and plants with novel traits. Despite safety assessments, the Canadian regulatory

system does not focus on GM foods (United States Department of Agriculture

[USDA], 2012).

The Canadian Food and Drug Regulations2 defines “novel food” as being one that

does not have a history of being safely used as a food.3In 2012, Canada cultivated

biotech crops at about 11.8 million hectors, and as one of the biotech crop-producing

countries, it ranked fourth in the world after the US, Brazil and Argentina (Clive,

2013). Major cultivated biotech crops approved for food uses in Canada are canola,

corn and soybeans (USDA, 2012). Other types of GM crops approved for food uses

in Canada include flax, potato, tomato, squash, sugar beet and others. “The genetic

modifications introduced into these crops include herbicide tolerance, resistance to

insect pests and to diseases caused by plant viruses, improved shelf life (in the case

of tomatoes) and modified oil composition”(USDA, 2012, p. 13).

GM foods play a big role in Canadian import and export trade. The US, Japan,

Mexico and China import approximately 85% of Canadian canola, seed, oil and

meal(USDA, 2012).Canola is typically a Canadian crop invented by Canadians. The

name “canola” stands for Canadian oil, low erucic acid. It is estimated that canola

alone contributes $13 billion CAD annually to the Canadian economy(USDA, 2012).

Canada also imports GM foods and crops such as corn and soybeans from the

US(USDA, 2012).

2CRC, c 870 [Food/Drug Reg]. 3Ibid at s B.28.001.


The Canadian regulatory system differs from the European Union (EU) system. The

EU has biotechnology-specific rules and regulations that allow the cultivation of GM

crops and GM foods after authorisation. But in practice, GM-labelled foods are not

available in the market and the cultivation of GM crops is temporarily banned in

many EU member countries. General consumers are hostile toward GM foods, and

retailers are hesitant to sell foods with GM labels. In the United Kingdom (UK), GM

crops are temporarily banned from being cultivated in the fields and consumers

cannot find GM-labelled foods in the supermarket. In all the big economies of

Europe, i.e., Germany, Italy and France, GM-labelled foods are not available in the

supermarket. This is the general trend in Europe. In contrast, there is no specific

biotechnology law regarding GM foods in the US and Canada; cultivation of GM

crops occurs, GM foods are available in the market, GM foods are not required to be

labelled and there is no strong opposition from the public. The EU system requires

scientific risk assessments and authorisation before GM crops and foods can be

brought into the environment or into the market, whereas in the US, there is no need

for scientific risk assessments if the GM food is not potentially harmful to public

health.

The infamous bovine spongiform encephalopathy (BSE) was first detected in cattle

in the UK in 1982.Its massive outbreak in 1989-1990 and again in 1996 in the UK,

the widely criticised use of asbestos in France during the 1990s,the‘Le sang

contamine’ scandal in France, and the dioxin contamination of food products

produced in Belgium in 1999 severely undermined public trust in the EU food safety

regulation(Lynch & Vogel, 2001). These events occurred at the same time when GM

foods were first being introduced in Europe, and they impacted the attitude of the

European public toward GM foods(Lynch & Vogel, 2001). “In this context it is

significant that while many scientists on both sides of the Atlantic, though perhaps

more in Europe, regard the most important risks associated with GMOs as

environmental, and the risks to human health as ranging from minimal to non-

existence, it is the latter which have dominated public discourse in Europe. This is a

direct response to mad-cow disease, which has heightened European anxiety over

food safety”(Lynch & Vogel, 2001).

These two systems of GMO regulations collided at the WTO Dispute Settlement

Body, and many times in agricultural trade negotiations between North America and

Europe. Even now, GM agricultural products are the main issue in the proposed US-

EU free trade agreement as well as in the Canada-EU free trade agreement. In the

EU, GM products including GM foods were not approved for sale from 1998 to

2003(Rosenthal, 2004). In August, 2003, the United States, Canada, and Argentina

brought a complaint before the World Trade Organisation (WTO) Dispute Settlement


Body against the EU.4They asked for a ruling on the failure of the EU to grant

approval on the marketing of a number of GM crops, and they also challenged the

imposition of national-import and marketing bans of GM crops by individual EU

member states(Sheldon, 2004). This restriction was imposed due to widespread

consumer concerns over the health safety and environmental impacts of GM

crops(Sheldon, 2004). In this case, i.e., European Communities - Measures Affecting

the Approval and Marketing of Biotech Products,5 the WTO Panel considered the

measures affecting the approval and marketing of biotech products in Europe.

In EC-Biotech, the Panel found that the European Communities applied a general de

facto moratorium on the approval of biotech products between June 1999 and August

2003. The Panel found that the European Communities had acted inconsistently with

its obligations under Annex C(1)(a), first clause, and Article 8 of the SPS Agreement

in respect of the approval procedures concerning 24 out of 27 biotech products

because there were undue delays in the completion of the approval procedures for

each of these products. However, the Panel found that the European Communities

had not acted inconsistently with its obligations under any provisions raised by the

complaining parties, including Art. 5.1, 5.5, and 2.2 of the SPS Agreement. The

Panel also found, with regard to the European Communities Member State safeguard

measures, that the European Communities acted inconsistently with its obligations

under Art. 5.1 and 2.2 of the SPS Agreement with regard to all of the safeguard

measures at issue, because these measures were not based on risk assessments

satisfying the definition of the SPS Agreement (World Trade Organization a). In this

dispute, the WTO Panel focused on the procedural aspects and it did not rule

anything based on the merits of the case or GMOs.

The EU lifted the 5-year (1998-2003) moratorium on GM foods only after the US,

Canada, and Argentina filed a submission against it in the WTO Dispute Settlement

Body. Subsequently, the EU made it possible to sell GM foods in the EU by adopting

the GM Food and Feed Law (Regulation (EC) No 1829/2003 of the European

4 See European Communities - Measures Affecting the Approval and Marketing of

Biotech Products (Complaint by the United States) (20 May 2003), WTO Doc WT/DS291/1 (Request for Consultations), online: WTO <https://docs.wto.org>; European Communities - Measures Affecting the Approval and Marketing of Biotech

Products (Complaint by Canada) (20 May 2003), WTO Doc WT/DS292/1 (Request for Consultations), online: WTO <https://docs.wto.org>; European Communities -

Measures Affecting the Approval and Marketing of Biotech Products (Complaint by

Argentina) (21 May 2003), WTO Doc WT/DS293/1 (Request for Consultations), online: WTO <https://docs.wto.org>.

5 (Complaint by the United States, Canada and Argentina) (2006), WTO Doc

WT/DS291/R, WT/DS292/R, WT/DS293/R (Panel Report) online: WTO <https://docs.wto.org> [EC-Biotech].


Parliament and of the Council of 22 September 2003on genetically modified food

and feed6) and GMO Traceability and Labelling Law (Regulation (EC) No

1830/2003 of the European Parliament and of the Council of 22 September 2003

concerning the traceability and labelling of genetically modified organisms and the

traceability of food and feed products produced from genetically modified organisms

and amending Directive 2001/18/EC7), which came into force on 18 April 2004.

In Canada, regulations cover the risk assessment aspects of GM foods. Accordingly,

GM foods are subject to risk assessment before they are commercialised. However,

many issues relating to GM foods are not addressed by regulation. GM foods

produced by GMOs are covered by regulation, but conventional or organic foods

contaminated by GMOs are not. Issues such as risk assessment of foods containing

GMOs or GMO-contaminated foods, applicability of the Precautionary Principle if

there is a need to protect public health, and labelling are not addressed by regulation

in Canada. What happens if honey (food) is contaminated by GMOs? Is it marketable

as organic honey or GM honey? Should we consider it as GM honey (food) and

subject it to risk assessment? North American laws are silent on this issue. In

Europe, the European Court of Justice (ECJ) in Karl Heinz Bablok and Others v

Freistaat Bayern8 ruled that honey and food supplements containing pollen derived

from a GMO are foodstuffs produced from GMOs which can not be marketed

without prior authorisation.9The ECJ also ruled that GMOs for food use, foodstuffs

containing or consisting of GMOs, or foodstuffs produced from ingredients produced

using or containing GMOs must be authorised before being placed on the

market.10

This case was referred to the ECJ by the Bavarian Higher Administrative

Court of Germany. This law suit was brought before the court in Germany in 2005

when a beekeeper found MON810 maize DNA and genetically modified proteins in

his beehives situated 500 meters from the land where GM crops were cultivated.11

6 EC, Regulation (EC) No 1829/2003 of the European Parliament and of the Council of

22 September 2003 on genetically modified food and feed [2003] OJ, L 268/1 [Regulation 1829/2003].

7 EC, Regulation (EC) No 1830/2003 of the European Parliament and of the Council of

22 September 2003 concerning the traceability and labelling of genetically modified

organisms and the traceability of food and feed products produced from genetically

modified organisms and amending Directive 2001/18/EC [2003] OJ, L 268/24 [Regulation 1830/2003].

8 Case C-442/09 Karl Heinz Bablok and Others v.Freistaat Bayern [ECJ, 6 Sept. 2011] [Bablok].

9 Ibid at para 109.

10Ibid at paras17, 109.

11Ibid at para 36.


Very small amounts of MON810 maize DNA were detected in a number of samples

of honey.12

Further issues arise over whether such contaminated foodstuffs should be GM-

labelled. Again, law in North America is silent on this. In Europe, honey that

contains pollen from authorised GM plants has to be labelled as such if the GM

pollen accounts for more than 0.9 per cent of the total pollen content.13

Whether

consumers have the freedom to choose between GM foods and non-GM foods and

whether they have the right to know about GM and non-GM foods are also not

addressed in Canada.

1. REGULATION OF GM FOODS

(A) Commercialisation and Scientific Risk Assessment in Canada, US and EU

In Canada, there is no specific biotechnology law. The Federal Regulatory

Framework for Biotechnology (1993)(Government of Canada, 1993) is the main

governmental policy that addresses biotechnology and it specifies that existing

legislation and regulatory institutions be used to deal with biotechnology. Hence, the

subject matter of biotechnology has been regulated by various existing relevant laws

in Canada.

Part 6 of the Canadian Environmental Protection Act,14

addresses the regulation of

animate products of biotechnology15

. In Canada, the CEPA is the only legislation that

directly deals with biotechnology, from a health and environment perspective. The

CEPA requires that all products of biotechnology that are new to Canada be subject

to an assessment of their potential 'toxicity’ before they can be manufactured,

imported or sold in Canada.

The Seeds Act,16

Feeds Act,17

and Fertilizers Act18

regulate agricultural biotechnology

but contain no clear legislative authority for the evaluation of genetically engineered

products from an environmental or human health perspective. The Seeds

Regulations19

covers plants including plants with novel traits (PNTs). The Seeds Act

12

Ibid at para 37. 13

Ibid at para 21. 14SC 1999, c 33 (CEPA). 15The Federal Regulatory Framework for Biotechnology, 1993, has defined

biotechnology as "the application of science and engineering in the direct or indirect use of living organisms or parts or products of living organisms in their natural or modified forms."See The Regulatory Framework, supra note 37.

16RSC 1985, c S-8. 17RSC 1985, c F-9. 18RSC 1985, c F-10. 19CRC, c 1400, ss 107, 110, 111.1.


and Seeds Regulations, which are listed in the CEPA’s Schedule 4, have provisions

addressing the notification and assessment of PNTs.20

If a PNT is found to pose a

significant risk to the environment, it shall not be released in Canada(Canadian Food

Inspection Agency [CFIA], 2012c). These acts are administered by the Canadian

Food Inspection Agency (CFIA),21

which has the authority to enact regulations

dealing with issues such as seed quality (grades), inspection, and packaging and

labelling. The Seed Regulations, Feeds Regulations,22

and Fertilizers

Regulations23

were enacted in Canada. The CFIA is also responsible for regulating

the Plant Protection Act24

and the Plant Protection Regulations25

in Canada.

The Canadian Food and Drugs Act26

and the Food/Drug Reg cover foods and drugs

(human and veterinary), cosmetics, and medical devices including those derived

through biotechnology. The Food/Drug Reg has created a new division under the

Food/Drugs Act, Division 28, regarding Novel Foods. The Pest Control Products

Act27

and the Pest Control Products Regulations28

require that pesticides, including

those derived through biotechnology, be assessed for health and environmental risks

and value, and only if both risks and value are acceptable can they be registered for

use. The Health of Animals Act29

and Health of Animals Regulations30

regulate

veterinary biologics. The Fisheries Act31

and the Fishery (General) Regulations32

regulate transgenic aquatic organisms.

A PNT is a new variety of a species that has one or more traits that are novel to that

species in Canada (Canadian Food Inspection Agency [CFIA], 2012d). All

genetically engineered plants contain novel traits. Some traits can be developed

through other techniques such as mutagenesis, cell fusion, and traditional breeding.

Such PNT’s also have the potential to affect the safety of the environment and human

health (CFIA, 2012d). The Plant Biosafety Office of the CFIA is responsible for

regulating the environmental release of PNTs under the Seeds Regulations (Part V).It

20 The provisions, for notification and assessment of plants with novel traits, of the Seeds

Act andSeeds Regulations are comparable to that in the CEPA 1999 for organisms that are products of biotechnology.

21 Established under the Canadian Food Inspection Agency Act, SC 1997, c 6. 22 SOR/83-593. 23CRC, c 666. 24SC 1990, c 22. 25 SOR/95-212. 26RSC 1985, c F-27 [Food/Drugs Act]. 27SC 2002, c 28. 28 SOR/2006-124. 29SC 1990, c 21. 30CRC, c 296. 31RSC 1985, c F-14. 32 SOR/93-53.


administers safety evaluations of all PNTs before they are grown, fed to livestock, or

are imported. Such PNTs are subject to confined research field trails under Directive

2009-09: Plants with novel traits regulated under Part V of the Seeds Regulations:

Guidelines for determining when to notify the CFIA(Canadian Food Inspection

Agency [CFIA], 2012b) and Directive 2000-07 (Dir2000-07: Conducting Confined

Research Field Trials of Plants with Novel Traits in Canada(Canadian Food

Inspection Agency [CFIA], 2012a).Then, a detailed environmental assessment is

required for the plant’s unconfined release into the environment. Such assessment

will be conducted under Dir 94-08(CFIA, 2012c) and Dir 2009-09(CFIA, 2012b). If

the PNT is to be used as livestock feed, it must be assessed for safety before it can be

used for commercial production. If the PNT is also to be used as human food, it must

undergo a separate safety assessment by Health Canada for food safety. After a

submission of application by proponent and environmental safety assessment, the

PNT may be authorised for environmental release with or without conditions.

(B). GM Foods Safety Assessment

Heath Canada is responsible for conducting safety assessments of novel foods

including GM foods. Health Canada's (2006) Guidelines for the Safety Assessment

of Novel Foods provides the reasoning of the safety concerns of GM foods. It states,

“The application of genetic modification through either traditional breeding or

genetic engineering is not considered to increase or decrease the inherent risk

associated with consuming the organism as a food. However, the wide variety of

manipulations possible through genetic modification, and the potential for the

introduction of toxic compounds, unexpected secondary effects and changes in the

nutritional and toxic characteristics of the food product may give rise to safety

concerns”(Health Canada, 2006, s. 1.1). The safety criteria for the assessment of

novel foods are outlined in Health CAN Guidelines (Health Canada, 2006) and

Division 28 of Part B of the Food/Drug Reg.

In Canada, safety assessment of GM foods involves the following steps:

I. Pre-submission consultation

II. Pre-market notification

III. Scientific assessment

IV. Requests for additional information

V. Summary report of findings

VI. Preparation of food rulings proposal

VII. Letter of no objection


Health Canada conducts, in line with the pre-market notification requirement, pre-

market evaluations to assess the safety of GM foods.33

Before such pre-market

notification, applicants are encouraged to consult with the Novel Foods Section of

the Food Directorate and to clarify safety issues.

When manufactures or importers who wish to sell or advertise GM foods have

complete knowledge regarding the safety of GM foods, they must submit a pre-

market notification to the Novel Foods Section. Based on the criteria described in

Health CAN Guidelines, a scientific safety assessment is then conducted by scientific

evaluators, who assess the following in regards to GM foods:

- development of the modified organism, including the molecular biological data

that characterises the genetic change;

- composition of and nutritional information on the GM food compared to a non-

modified counterpart food;

- the potential for production of new toxins in the food;

- the potential for causing allergic reactions;

- microbiological and chemical safety of the food;

- the potential for any unintended or secondary effects;

- key nutrients and toxicants; and,

- major constituents (for example, fats, proteins, carbohydrates) and minor

constituents (for example, minerals and vitamins).

Health Canada evaluators, if required, may request further information. Once

evaluators complete their assessments, they prepare a report. Then, a Health Canada

Food Rulings Proposal is prepared and is reviewed by senior staff in the Food

Directorate, who make sure that all issues have been addressed. After, a decision on

whether or not to approve the GM food is made. If the decision is to approve, a

“Letter of No Objection” is issued to the applicant, and the approved GM foods can

be sold in the market.

In the US, there are no specific statutes that deal with biotechnology or GMOs. GM

crops or food products are regulated under existing laws that address health, safety,

efficacy, and environmental safety. The existing laws applicable to conventional or

non-GMO products also apply to GMO products (Stewart & Johanson, 1999). The

33

Food/Drug Reg, supra note 2 at s B.28.002.


Co-ordinated Framework for Regulation of Biotechnology Products34

(CFR) is the

main US governmental policy, and it specifies that no new and specific

biotechnology law is needed to regulate the products of biotechnology in the US. It

references the existing Federal Plant Pest Act,35

the Federal Plant Quarantine Act36

and the Federal Insecticide, Fungicide and Rodenticide Act37

as an adequate basis for

regulating biotechnology (Nap, Metz, Escaler & Conner, 2003). “This CFR decision

implies that in USA the regulation focuses primarily on the characteristics of the

product, rather than the way in which the product is produced”(Nap, Metz, Escaler &

Conner, 2003, p. 9). However, as and when needed, federal agencies have developed

a number of regulations38

and guidelines39

specific to particular biotechnology

products (Pew Initiative on Food and Biotechnology, 2001).

In the US, no single federal agency is responsible for the regulation of biotechnology

products (Pew Initiative on Food and Biotechnology, 2001). The CFR has named the

Animal and Plant Health Inspection Service (APHIS) of the United States

Department of Agriculture (USDA), the Environment Protection Agency (EPA) and

the Food and Drug Administration (FDA) as the primary governmental agencies for

regulating biotechnology.

“The Biotechnology, Biologics and Environmental Protection

(BBEP) unit of USDA-APHIS focuses on the environmental impact

of GM plants under (revised) regulation 7 [CFR]Part 340”(Nap,

Metz, Escaler & Conner, 2003, p. 9). APHIS has the authority to

regulate transgenic plants under the Plant Protection Act40

to

control plant pests and to ensure protection of commercial crops

and the environment. Accordingly, APHIS may “impose regulatory

restrictions on the importation, transportation and planting of

transgenic plants”

(Pew Initiative on Food and Biotechnology, 2001, p. 3).

34 51 Fed Reg 23302 (1986) [CFR].The Coordinated Framework for Regulation of

Biotechnology is considered a cornerstone of US biotechnology policy. 35 7 USC § 150bb or 150cc (1957) [Plant Pest Act], as repealed by Plant Protection Act,

7 USC §§ 7701-86 (2000). 36 7 USC §§ 151-167 (1994) [Plant Quarantine Act], as repealed by Plant Protection Act. 37 7 USC §§ 136-136y (1994)[FIFRA]. 38 Federal agencies issue regulations, which have binding effect, to implement the

provisions of statutes. 39 Guidelines have no binding effect. 40 This Act (7 USC §§ 7701-86 (2000)) was passed in 2000. It repealed and consolidated

the authorities of all or part of nine other pre-existing statutes, including the Plant Pest

Act of 1957, the Federal Noxious Weed Act of 1974, and the Plant Quarantine Act of 1912. See Pew Initiative on Food and Biotechnology, 2001.


US has a provision of issuing a “determination of non-regulated status” to new GM

plants, i.e., only to non-plant pests. Developers of a new GM plant submit an

application to APHIS (Stewart & Johanson, 1999).Then, APHIS conducts an

environmental risk assessment and determines the plant’s possible effects on human

health and the environment (Stewart & Johanson, 1999).Accordingly, APHIS issues

a "determination of non-regulated status” to such GM plant if it is not a plant pest.

The new GM plant will no longer be subject to APHIS' plant pest rules and it may be

released into the environment (Stewart & Johanson, 1999). The Plant Pest Act and

the Plant Quarantine Act provide authority to APHIS for regulating GM plant pests

(Stewart & Johanson, 1999).

Under FIFRA, the EPA is responsible for regulating “[t] ransgenic plants that have

been modified to produce a pesticide”(Pew Initiative on Food and Biotechnology,

2001, p. 8).In accordance with FIFRA, a manufacturer needs to register a pesticide,

including plants with pesticidal qualities, with the EPA before it is commercialised in

the market. Through the Federal Food, Drug, and Cosmetic Act,41

the EPA sets out

maximum tolerance levels for pesticide residues in foods. Furthermore, a notice must

be submitted to the EPA in accordance with the Toxic Substances Control Act42

before it can be manufactured or imported (Stewart & Johanson, 1999). The National

Environmental Policy Act43

has provision for the environmental assessment process

and provision for exclusion from NEPA requirements.

Regarding GMO foods, “[t]he key to the U.S. approach to regulation of GMOs is the

principle of minimal oversight of food products that are generally regarded as safe

(GRAS). Conventional food products are considered GRAS, and this is the standard

by which GM foods are being judged in the United States”(Sheldon, 2004, p. 11).In

this respect, the “concept of substantial equivalence” is “the process of evaluating the

safety of GM foods.” Its objective is to not establish absolute safety but rather to

evaluate “whether a GM food …is as safe as its conventional counterpart”(Sheldon,

2004, p. 11).

The US FDA is responsible under the FFDCA to ensure the safety of foods including

GM foods. “As a general rule, the FDA regulates GMOs no differently than food

products developed through traditional plant breeding techniques”(Stewart &

Johanson, 1999, p. 248).The FDA has taken the view “that crop development through

genetic modification is simply an extension to the molecular level of traditional

plant-breeding methods,” and “GM foods do not differ in any substantial way from

4121 USC §§ 301-395 (1994). 4215 USC § 2603(d) (1976). 43 42 USC § 4321 etseq (1970) [NEPA].


those foods developed through traditional plant-breeding methods”(Sheldon, 2004, p.

11).

Companies that introduce GM foods into the market do not necessarily need to

obtain approval from authorities. Such companies may voluntarily consult with the

FDA before the GM food product is marketed (Stewart & Johanson, 1999). If it is

revealed during the consultation that the food product may have a negative health

effect, “the FDA has authority under the FFDCA to require a pre-market review” to

determine the safety of the product through testing. Section 402(a)(1) of the FFDCA

obligates the food producer to ensure that the food is safe(Stewart & Johanson, 1999,

p. 248).

In Europe, GM foods are strictly regulated and there are specific laws and

regulations for GM foods. Regulation 1829/2003 defines GM foods, stating,

"genetically modified food" means “food containing, consisting of or produced from

GMOs.”44

The EU regulatory system on GM foods differs from the Canadian system. The

Canadian system focuses on all kind of novel foods produced from genetic

engineering technology as well as other methods that produce new traits. In contrast,

the EU system covers only foods produced from genetic engineered technology. This

system regulates products “produced from a GMO” but it does not regulate products

“produced with a GMO.” For example, products obtained from animals fed with

genetically modified feed are not subject to the EU’s authorisation or labelling

requirements (Scott, 2003).The Canadian system is silent on this issue. The EU

system differs from the US in regards to GMOs products and governing regulations.

The EU system requires risk assessments and authorisation of all kinds of GM foods

before they can be commercialised.

The EU for the first time adopted Council Directive 90/220/EEC of 23 April 1990 on

the deliberate release into the environment of genetically modified organisms.45

It

was amended twice and finally repealed and replaced by Directive 2001/18/EC of the

European Parliament and of the Council of 12 March 2001 on the deliberate release

into the environment of genetically modified organisms and repealing Council

Directive 90/220/EEC.46

The next law adopted was Regulation (EC) No 258/97 of the

44

Regulation 1829/2003, supra note 6 art.2(6). 45 EC, Council Directive 90/220/EEC of 23 April 1990 on the deliberate release into the

environment of genetically modified organisms, [1990] OJ, L 117/15 [Directive

90/220]. 46 EC, Directive 2001/18/EC of the European Parliament and of the Council of 12 March

2001 on the deliberate release into the environment of genetically modified organisms

and repealing Council Directive 90/220/EEC, [2001] OJ, L 106/1 [Directive 2001/18].


European Parliament and of the Council of 27 January 1997 concerning novel foods

and novel food ingredients.47

In July 2003, the European Parliament adopted rules

requiring mandatory labelling of food products that contain traces of GM ingredients

by amending the EU regulatory system(Sheldon, 2004).

Directive 90/220, Regulation 258/97,Directive 2001/18, Regulation 1829/2003, and

Directive 2009/41/EC of the European Parliament and of the Council of 6 May 2009

on the contained use of genetically modified micro-organisms48

are the major EU

regulations addressing GMOs. Directive 90/220 and Directive 2001/18 concern the

environmental release of GMOs either for market or experiment. Regulation 258/97

deals with novel foods. “Regulation 1829/2003 and Regulation 1830/2003 create a

new authorisation regime and new requirements on traceability for GM [f]ood and

[f]eed”Male, 2004, p. 443).Directive 2009/41 lays down the minimal standards for

the contained use of genetically modified microorganisms. Member states are

permitted to take more stringent measures to protect human health and the

environment.

In the EU, a scientific risk assessment is carried out by the European Food Safety

Authority (EFSA)(European Commission). The EU regulatory system has

established a centralised procedure for prior authorisation and labelling of GM food

and feed that must be followed before GM products can be released into the market.

An application is submitted to the competent member state authority where the GMO

would be marketed, along with the required information and documents. The

competent member state authority forwards the application to the EFSA, who

publishes summaries of the application to inform other member states and the

European Commission. The EFSA issues an opinion on the application, then sends

this to the Commission, member states and the applicant, along with its risk

assessment report and reasons for its opinion. After, the Commission develops a

proposal to grant authorisation, which needs to be approved by a majority of the

member states. This authorisation is subject to a post-market monitoring plan and is

granted for a period of ten years. It can be renewed if it meets all requirements.

EU regulations do not ban GM crops or GM foods. Rather, they give freedom to

member states to decide whether to ban a crop or food based on health safety.EU

member states may invoke a safeguard provision to ban GM crops or foods

47 EC, Regulation (EC) No 258/97 of the European Parliament and of the Council of 27

January 1997 concerning novel foods and novel food ingredients, [1997] OJ, L 43/1 [Regulation 258/97].

48 EC, Directive 2009/41/EC of the European Parliament and of the Council of 6 May

2009 on the contained use of genetically modified micro-organisms, [2009] OJ, L 125/75 [Directive 2009/41].


temporarily. Art. 12 of Regulation 258/97 allows member states to temporarily ban

products if there are "detailed grounds for considering that the use of a food or a food

ingredient . . . endangers human health or the environment." Accordingly, many

member states have invoked the safeguard provision and banned GM foods. For

example, Italy invoked the safeguard clause (Art. 12) under Regulation 258/97 on

novel foods in August 2000. The next time Italy banned novel foods pursuant to Art.

12 of Regulation 258/97, the ECJ in Monsanto Agricoltura Italia SpA v Prezidenza

del Consigliodei Ministri49

interpreted Art. 12 of the Regulation 258/97 and ruled, "it

is apparent that, in the light of the [P]recautionary[P]rinciple, the implementation of

such measures is necessary in order to ensure that novel foods do not present a

danger for the consumer."50

France banned the cultivation of the GM maize variety MON810 on 7 February

200851

and the ban has been maintained despite pressure from the European

Commission to reverse it. On 17 April 2009, the cultivation of MON810 was

provisionally banned in Germany52

by the German Administrative Court. The Court

stipulated that indicators of risk to the environment were sufficient for a cultivation

ban on genetically modified crops or plants (GMO Safety, 2009). The Court held,

“[T]here do not need to be confirmed scientific findings available in order for a

temporary cultivation ban to be valid. All that was needed was for there to be new or

additional indications that humans or animals might be at risk… In the event of

uncertainties regarding the existence or scale of risks, safety precautions could be

taken without waiting for the risks to be fully investigated”(GMO Safety, 2009).

The EU has provisions for the co-existence of GM crops and non-GM crops. The EU

has adopted Commission Recommendation of 23 July 2003 on guidelines for the

development of national strategies and best practices to ensure the co-existence of

genetically modified crops with conventional and organic farming53

and Commission

Recommendation of 13 July 2010 on guidelines for the development of national co-

existence measures to avoid the unintended presence of GMOs in conventional and

49 See Monsanto Agricoltura Italia SpA and Others v Presidenza del ConsigliodeiMinistri

and Others, C-236/01, [2003] ECR I-8105 [Monsanto Agricoltura]. 50

Ibid at para 114. 51 Ministerial Decree of 7 February 2008 Suspending the Cropping of Genetically

Modified Maize Seed (Zea Mays L Line MON810), JO No 34 of 9 February 2008, NOR: AGRG0803466A, amended 13 February 2008, NOR: AGRG0803888A.

52 Agra Europe Weekly No 2357, 17 April 2009, EP/1. See also Bablok,supra note 31 at para 29.

53 EC, Commission Recommendation of 23 July 2003 on guidelines for the development

of national strategies and best practices to ensure the co-existence of genetically

modified crops with conventional and organic farming, [2003] OJ, L 189/36.


organic crops.54

The latter has aprovision for declaring GM-free zones.55

Sixteen EU

member countries have adopted co-existence guidelines and made co-existence law

and policies(Chiarabolli, 2011). Many EU member states have declared GM-free

zones. For example, as of 2008, 16 of the 20 Italian regions have declared themselves

GM-free. Coexistence requirements are aimed at keeping the presence of GMOs in

conventional fields below a 0.9% threshold.

2. GM FOODS AND THE PRECAUTIONARY PRINCIPLE

In addition to provisions for safety assessments, there is also a Precautionary

Principle that plays an important role in risk management. The Precautionary

Principle has been invoked temporarily by many countries to protect health and the

environment. It is an established pillar of public policy and an important basis for

public health and environmental legislation all across the world. The Precautionary

Principle has been accepted as a risk management strategy in several fields, including

GM foods, where there are potential hazards to health or the environment, “and when

at the same time the available data preclude a detailed risk evaluation”(Male, 2004,

p. 444).The Precautionary Principle originated from the German principle of

Vorsorge (foresight). “At the core of early conceptions of this principle was the

belief that society should seek to avoid environmental damage by careful forward

planning, blocking the flow of potentially harmful activities”(Tickner, Raffensperger

& Myers, 1999, p. 2). Many international environmental agreements have also

adopted the precautionary approach. The 1992 Rio Declaration on Environment and

Development states, “Where there are threats of serious or irreversible damage, lack

of full scientific certainty shall not be used as a reason for postponing cost-effective

measures to prevent environmental degradation.”56

The 2000 Cartagena Protocol on

Biosafety to the Convention on Biological Diversity states, “Lack of scientific

54 EC, Commission Recommendation of 13 July 2010 on guidelines for the development

of national co-existence measures to avoid the unintended presence of GMOs in

conventional and organic crops, [2010] OJ, C200/1 [Commission Recommendation

2010]. 55

Ibid. Number 1 of the Recommendation states, “Member states may take appropriate measures to avoid the unintended presence of genetically modified organisms… in other products… [or] crops, such as conventional or organic.” Number 4 of the Recommendation states, “The objective of co-existence measures … is to avoid unintended presence of GMOs in other products, preventing the potential economic loss and impact of the admixture of GM and non-GM crops (including organic crops).” Number 5 of the Recommendation has a provision declaring GM-free zones. “In some cases… it may be necessary to exclude GMO cultivation from large areas… [if] other measures are not sufficient to prevent the unintended presence of GMOs in conventional or organic crops.”

56Rio Declaration on Environment and Development, 14 June 1992, 31 ILM 874 at Principle 15.


certainty due to insufficient relevant scientific information and knowledge regarding

the extent of the potential adverse effects of a living modified organism on the

conservation and sustainable use of biological diversity in the Party of import, taking

also into account risks to human health, shall not prevent that Party from taking a

decision, as appropriate, with regard to the import of the living modified organism in

question . . . in order to avoid or minimise such potential adverse effects.”57

It has

also been claimed that the Precautionary Principle is a “general principle of

international environmental” agreements (World Trade Organization b).

The Precautionary Principle has been widely used in Europe, and it is considered one

of the four basic pillars of the EU system. In Europe, the Precautionary Principle is

guided by the anti-GMOs movements. The basic concern of consumers is “being

expected to bear all of the risk with very little benefit”(Sheldon, 2004, p. 6).The

Precautionary Principle is enshrined in EU treaties and legal decisions. Art. 174 of

the EC Treaty states, “Community policy on the environment … shall be based on

the precautionary principle and on the principles that preventive action should be

taken”(European Commission, 2000, p. 22).In Europe, the scope of the Precautionary

Principle has been “broadened from environmental protection…to encompass

human, animal, or plant health”(Lynch & Vogel, 2001).The European Commission

stated that the Precautionary Principle is intended to be invoked when “potentially

dangerous effects deriving from a phenomenon, product or process have been

identified, and … scientific evaluation does not allow the risk to be determined with

sufficient certainty”(European Commission, 2000, p. 3)“because of the insufficiency

of the data, their inconclusive or imprecise nature”(European Commission, 2000, p.

14).

With respect to GM foods and GM crops, Art. 12 of Regulation 258/97 is known as a

safeguard provision. Art. 12 allows member states to temporarily ban products if

there are "detailed grounds for considering that the use of a food or a food ingredient

. . . endangers human health or the environment."58

On the issue of GM foods, the

ECJ in Monsanto Agricoltura has also interpreted Art. 12 of the Regulation 258/97

and ruled that "it is apparent that, in the light of the [P]recautionary [P]rinciple, the

implementation of such measures is necessary in order to ensure that novel foods do

not present danger for the consumer."59

5729 January 2000, 2226 UNTS 208, 39 ILM 1027 (entered into force 11 September

2003) at art 10(6) [Cartagena Protocol]. See Lesley K McAllister, “Judging GMOs: Judicial Application of the Precautionary Principle in Brazil” (2005) 32:1 Ecology LQ 149 at n 20.

58Regulation 258/9, supra note 101at art 12(1).

59Monsanto Agricoltura, supra note 106 atpara 114.


The Precautionary Principle is not accepted by every country. The US policy differs

from the EU policy in this respect; the US has not recognised the Precautionary

Principle in its law and policies (Kogan, 2004).However, there is a counterargument

that the Precautionary Principle has been adopted in US law. “[N]o country has so

fully adopted the essence of the precautionary principle in domestic law as the

United States”(Cameron, 2000, p. 250).American food safety regulation has adopted

the norm of the Precautionary Principle. The Delaney clause to the Food, Drug and

Cosmetic Act enshrined the Precautionary Principle by banning the use of any food

additive that causes cancer (Lynch & Vogel, 2001). “[E]lements of the

[P]recautionary[P]rinciple… [are] firmly entrenched in American environmental

law”(Applegate, 2000, p. 438). For example, “the 1970 Clean Air [Act]60

and Clean

Water Act61

required the EPA to apply ‘an adequate margin of safety’ in setting

emission limits for hazardous pollutants… The 1997 Clean Air Act Amendments

authorised EPA to ‘assess risk rather than wait for proof or actual harm’”(Cameron,

2000, p. 251). “In Reserve Mining [Co v EPA]62

the Supreme Court permitted EPA

to regulate an effluent based on only a ‘reasonable’ or ‘potential’ showing of danger,

rather than on the more demanding ‘probable’ finding requested by the industrial

plaintiff”(Lynch & Vogel, 2001).

Professor Cass Sunstein has criticised this principle heavily: “The most serious

problem with the Precautionary Principle is that it offers no guidance – not that it is

wrong, but that it forbids all courses of action, including inaction (Sunstein, 2002, p.

33)… Genetic modification of food has become a widespread practice. But the risks

involved are not known with precision. Some people fear that genetic modification

will result in serious ecological harm and large risks to human health. Other people

claim that genetic modification will have significant health benefits”(Sunstein, 2002,

p. 33-34).At the Kennedy School of Government: “There is considerable controversy

on the meaning, scope, context and application of the [P]recautionary [P]rinciple in

international trade and environment management”(Harvard Kennedy School,

2000).This principle has been commented on as “wholly arbitrary” (Adler, 2011) and

“literally incoherent,”(Sunstein, 2005) and characterised as an anti-scientific,

simplistic and irrational shortcut(Majone, 2002).

Canadian law and policy are silent on the Precautionary Principle. In 2001, Health

Canada submitted, “The five departments63

fully support a precautionary approach

60 42 USC § 7401 etseq (1970). 61 33 USC § 1251 etseq (1972). 62514 F (2d) 492 (8th Cir 1975). 63 The names of the five Governmental Departments are: Health Canada, the Canadian

Food Inspection Agency, Environment Canada, Agriculture and Agri-Food Canada and the Department of Fisheries and Oceans.


when reviewing products for human and environmental safety. The language of

Principle 15 of the 1992 Rio Declaration on Environment and Development, and the

approach that it represents are consistent with today's regulatory practices in the field

of environmental protection in Canada. This is expressed in a number of documents

including a commitment by the Government of Canada in the preamble of the

Canadian Environmental Protection Act”(Health Canada, 2001). However, it has not

been directly incorporated into law, government authority has not invoked this

principle, and courts have not relied on this principle. When there is no evidence of

harmfulness by GM foods to health or the environment but there is some reasonable

doubt, the Precautionary Principle may be justified as an exception. It is good to have

in case the need for it arises. Canadian legislature and policy makers may need to

give serious consideration to the Precautionary Principle.

3. LABELLING GM FOODS: A RIGHT TO CHOICE AND A RIGHT TO

BE INFORMED

In the US, like in Canada, there is no mandatory regulation requiring GM foods to be

labelled. Labelling is only required when the GM food differs significantly from the

same type of conventional food in its nutritional content or when it poses a threat to

health. In the US, the Genetically Engineered Food Right-to-Know Act64

was tabled

in Congress in 1999, but it was never enacted. A US Federal Appeal Court in

International Dairy Foods Ass’nv Amestoy held that a mandatory state labelling law

for certain GM products might be unconstitutional (Stewart & Johanson, 1999).

Regarding GM foods, “the key to the U.S. approach to regulation of GMOs is the

principle of minimal oversight of food products that are generally regarded as safe

(GRAS). Conventional food products are considered GRAS, and this is the standard

by which GM foods are being judged in the United States … the concept of

substantial equivalence has been developed as part of the process of evaluating the

safety of GM foods. The objective of such an approach is not to establish absolute

safety, but to consider whether a GM food (ingredient) is as safe as its conventional

counterpart” (Sheldon, 2004, p. 11).

The FDA has established the substantial equivalence principle, which states that

existing GM foods do not differ in any substantial way from those developed through

conventional methods. However, the FDA requires labelling of a GM-food product

“if the GM version of an existing food product is substantially different, if the GM

version has very different nutrition properties, and if the GM food contains an

allergen that would not normally be present in that food product”Sheldon, 2004, p.

11).

64 US, Bill S 2080, Genetically Engineered Food Right-to-Know Act, 106th Cong, 2000.


In Europe, all GM foods have to be labelled “to allow consumers to make an

informed choice in the market place”(Zarrilli, 2005, p. 4).The requirement of

mandatory labelling is a central part of the EU regulatory system, which differs

completely with the US and Canadian systems. “The system of mandatory labelling

is also supplemented by the requirement of traceability”(Sheldon, 2004, p. 10). Food

and feed products produced by GMOs, or foods consisting of or containing more

than 0.9%percent GMOs, are subject to labelling and traceability. Non-GM foods

contaminated by GMOs below 0.9% are not subject to labelling and traceability

requirements, provided that such presence of GMO is adventitious or technically

unavoidable. There are no labelling and traceability requirements on products such as

milk, eggs, or meat obtained “from animals fed with GM feed …[C]heese and beer

produced with GM-based enzymes are also exempt from label[l]ing”(Sheldon, 2004,

p. 10).The labelling and traceability requirements are governed by Regulation

1829/2003 and Regulation 1830/2003.

In Canada, there is no mandatory labelling of GM foods; GM foods may be labelled

on a voluntary basis. However, there is pressure from the public for mandatory

labelling of GM foods. The Government of Canada recognises that “[F]or many

Canadians, labelling of foods derived from biotechnology is an important issue of

consumer preference or choice”(Health Canada, 2005).“[S]everal private members’

bills have been introduced into the House of Commons” in favour of the mandatory

labelling of GM foods(USDA, 2012, p. 13). For example,C-287, a private member’s

bill requiring mandatory labelling of GM foods proposed by MP Charles Caccia, was

defeated in Parliament on 17 October 2001(CBC News Online, 2004). Again in

February 2011, a Bill requiring labelling or disclosure of GM content was defeated in

Parliament(Bradshaw, 2011). The Canadian approach on GM food labelling is very

much similar to the US approach. At an international level on 5 July 2011, the

FAO/WHO Codex Alimentarius Commission (Codex)65

adopted the Compilation of

Codex texts relevant to labelling of food derived from modern biotechnology(Codex

Alimentarius, 2011). The Codex recognised “that each country has the right to adopt

its own approach to labelling GM food[s]”(Galloway, 2011; Consumers

International, 2011).

The Canadian regulatory system has no provision regarding the mandatory labelling

of GM foods. The main arguments against mandatory labelling concern the

additional costs of implementing the labelling of GM foods and trade

65 The Codex Alimentarius Commission is a joint commission of the World Health

Organization and the Food and Agricultural Organization formed in 1963. It has been tasked with establishing health and safety standards and regulating the international food trade.


implications(Hubbard, 2002). “The adoption of [a] mandatory labelling system by

Canada could have a significant impact on its trade relationship with its largest

agricultural trading partner, the United States (U. S.), which does not support

mandatory labelling of biotechnology-derived foods”(Parliament of Canada, 2002).

“[T]he increased costs associated with mandatory labelling would place Canadian

farmers, food manufacturers and exporters at a significant disadvantage”(Parliament

of Canada, 2002).

“Health Canada has taken the position that GM foods are just as safe as conventional

foods. Food must be labelled in Canada if it is pasteurised, irradiated, or contains

possible allergens such as peanuts”(CBC News Online, 2004).Health Canada states,

“Currently in Canada, labelling is mandatory if there is a health or safety issue with a

food, which might be mitigated through labelling. For example, if the nutritional

value or composition of the food has been changed, or if there is an allergen present

in the food, the food must be labelled as such. In this situation, special labelling is

required to alert consumers or susceptible groups in the population. This applies to

all foods, including GM foods”(Health Canada, 2005).

In February 2001, the Royal Society of Canada prepared the report “Elements of

Precaution: Recommendations for the Regulation of Food Biotechnology in

Canada”(Royal Society of Canada, 2001),and in August 2002, the Canadian

Biotechnology Advisory Committee prepared the report “Improving the Regulation

of Genetically Modified Foods and Other Novel Foods in Canada”(Biotechnology

Ministerial Coordinating Committee, 2002). Both reports indicated their support for

voluntary food labelling in Canada. Further to this, in 2004, the Standards Council of

Canada adopted the National Standard for Voluntary Labelling and Advertising of

Foods That Are and Are Not Products of Genetic Engineering(Government of

Canada, 2004),which deals with the labelling of GM foods(USDA, 2012).

Under the Food/Drugs Act and Food/Drugs Reg, Health Canada is responsible for

food labelling relating to health and safety issues. The CFIA under the Food/Drugs

Act is responsible for prescribing basic food labelling and advertising standards. It is

also responsible for protecting consumers from misrepresentation and fraud relating

to food labelling, including packaging and advertisement.

In principle, it is the consumer’s right to know what they are eating and they have

right to choose what they want to eat. This is why Canada’s trading partners, such as

the EU, Japan, Australia, and New Zealand and other countries have mandatory

labelling of GM foods (Zarrilli, 2005). In China, the labelling requirement applies to

“soybean, corn seeds, rapeseeds, cotton seeds and tomato seeds, as well as to

products thereof (Zarrilli, 2005, p. 6).”Consumers’ preferences to foods with GM

labels have been growing in global markets. Hence, arguments in favour of non-


mandatory labelling, such as trading implications and cost of labelling, will weaken

with time. Companies like Nestlé and Unilever, which do business in North America

and Europe, have already “dropped GM ingredients from their products” in

Europe(CBC News Online, 2004).

4. GM FOODS AND CROSS-CUTTING ISSUES

Since GM foods are products of GM crops, plants and animals, issues related to GM

crops or plants, such as co-existence, adventitious presence (AP),66

liability, and

transparency, are directly related to GM foods. In Canada and the US, there is no law

addressing the co-existence between conventional, organic, and GM crops. The EU,

however, has adopted a recommendation on guidelines for coexistence measures to

avoid AP in non-GM crops.67

Sixteen EU member states have already enacted co-

existence laws, which address minimising AP of GMOs in non-GM crops and

compensation to non-GM farmers for economic loss from AP. In the EU, coexistence

measures are aimed at keeping AP of GMOs in conventional fields below a 0.9%

threshold.

Because of the lack of co-existence laws to minimise AP levels in Canada and the

US, there is the problem of GMO contamination on conventional and organic crops.

Consequently, foods produced by conventional and organic crops happen to be

GMO-contaminated foods. Regulation is silent on whether such foods are GM foods,

whether such foods need to go through safety assessments, who will compensate for

economic losses caused by GMO cross-contamination, and whether there are any

measures that can minimise GMO contamination. These issues are not regulated in

Canada(USDA, 2012).

It has been recognised that a 0% tolerance policy towards AP is not possible to

implement, but maintaining a certain Low Level Presence (LLP) of AP is possible.

“LLP refers to the incidental presence of tiny amounts of a GM material mixed in

with a non-GM product”(USDA, 2012, p. 18).There is no unanimity about the proper

level of LLP so far. In Canada, the issue of LLP has become increasingly important

in recent years(Dawson, 2011).Since the Triffid flax issue, where non-approved GM

flax was exported from Canada and reached 35 countries,68

the Canadian

66Adventitious presence refers to both genes that have entered conventional and organic

crops, as well as a mixture of GM product with conventional/organic product, e.g., a crop being mixed in the grain conveyor.

67Commission Recommendation 2010, supra note 54.

68House of Commons Debates, 40th Parl, 3rd Sess, No 108 (1 December 2010) (Alex Atamanenko).


Government has been proactive in pursuing international standards for AP69

that can

be classified as a LLP70

. The government has accepted the importance of LLP

management and has conducted “consultation in the fall of 2011” to develop suitable

LLP management policy (Agriculture and Agri-Food Canada, 2012a).

The Government of Canada developed the Proposed Domestic Policy on the

Management of Low-Level Presence of Genetically Modified Crops in Imports and

its Associated Implementation Framework to Manage Low-Level Presence in

Grain(Agriculture and Agri-Food Canada, 2012b) in September 2012. This proposed

policy talks about LLP management of and importation of GM crops in Canada. This

issue arise when AP is identified on non-GM crops. If it is already GM crops, there is

no requirement of management of LLP. Furthermore, this proposed policy applies to

imported GM crops only, notto domestic crops. It does not talk about the domestic

problem of AP, which is a serious matter in Canadian agriculture. Also this policy

may discriminate between the treatment of national and foreign products.

In Canada, there is no regulation of GM animals as such. The University of Guelph

developed a genetically engineered ‘Enviropig’ for food. It applied for approval on

23 April 2009 and is “waiting for Health Canada to approve ‘Enviropig’ for human

consumption”(Canadian Biotechnology Action Network [CBAN], 2010, p. 5).“No

genetically modified animals have been approved for eating anywhere in the world.

The only GM animal approved globally is the GloFish pet (not approved in Canada).

In addition ‘Enviropig’ the Canadian company Aquabounty is seeking approval for

its GM fish, a fast growing Atlantic salmon. They have requested approval in the US

but not yet in Canada”(CBAN, 2010, n. ii).“On the animal side, guidance from the

three regulatory agencies in Canada (Health Canada, Environment Canada and the

Canadian Food Inspection Agency) is still to be issued on the question of whether the

offspring or progeny of clones fall under Canada's Novel Foods provisions of the

Food and Drug Regulations. At this point, there is no indication that such decision

would be made in the near future”(USDA, 2012, p. 2). The Department of Fisheries

and Oceans is currently developing draft regulations on transgenic aquatic organisms

(USDA, 2012).

It is important to incorporate public participation into the GM food law-making and

decision-making process. Provisions addressing access to information, transparency,

69 Here in the term Adventitious presence (AP) is used to refers to both genes that have

entered conventional and organic crops, as well as mixture of GMO product with conventional/organic product, for example e.g., a crop being mixed in the grain conveyor.

70 Although the term is being used a lot in the current discussions on ‘low levels’ of AP, there are differing arguments as to what it means.


public participation in decision-making, and access to justice are fundamental to

GMO regulation. Many international conventions71

have urged participating

countries to have public participation provisions in their domestic law.

In the EU, Directive 2001/18 has a provision requiring public consultation by

member states when introducing GMOs into the environment.72

“[N]ational

authorities are to take into account the views and concerns of the public”(Bodiguel &

Cardwell, 2010, p. 16). In the UK, the public are engaged extensively in the

consultation process (Bodiguel& Cardwell, 2010). In New Zealand, a “participatory

approach has been adopted” and “[i]n 1999 the Independent Biotechnology Advisory

Council was established to inform and consult the public on matters of

biotechnology”(Bodiguel & Cardwell, 2010, p. 18). In Africa, the African Model

Law on Safety in Biotechnology73

has a public participation provision.

Public input into the regulation of GM foods is significant. It is the public who eat

GMOs and who bear all risks if there are any. In Canada, governmental agencies

have claimed that there is public participation. But if there is no specific GM foods

law, no labelling provisions, and GM and other foods are treated equally, the

question of public participation cannot arise.

CONCLUSION

In many countries, the labelling of GM foods is the central part of policy debates.

Australia, Japan, European countries, and other many countries have regulatory

provisions that require labelling of GM foods, whereas others such as Canada and the

USA do not. There are some fundamental differences between GMOs and non-GM

foods. GMOs are patentable, whereas conventional or organic foods are generally

not. A patent gives exclusive rights to a GMO patentee, whereas others do not have

this right. Non-GM seeds typically can be planted, replanted, saved, or sold by

farmers, but farmers do not have these same rights with GM seeds. GM plants or

crops have cross-pollination effects and ‘contaminate’ non-GM plants or crops

(foods too),which is not usually an issue with non-GM plants.

Common sense says that it may take some time to learn the negative effects of GM

foods if there are any. If you do not label GM foods, you may not be able to know

71

Convention on Biological Diversity, 5 June 1992, 1760 UNTS 79, Can TS 1993 No 24 (entered into force 29 December 1993) art 14(1)(a); Cartagena Protocol, supra note 119 art 23(2);Convention on Access to Information, Public Participation in Decision–

Making and Access to Justice in Environmental Matters, 25 June 1998, 2161 UNTS 447, 38 ILM 517 (entered into force 30 October 2001).

72Directive 2001/18, supra note 100art 9.

73African Model Law on Safety in Biotechnology, (AU), 2007, arts 5(2), 5(4).


their long-term effects on health and the environment. There is no easy choice for

India. On the one hand, there are economic concerns, particularly agricultural trade

with other nations. On the other there is an issue for food security. Yet again, there

are public concerns: the citizens’ right to choice and right to information. This

balance may change in the future, since the number of consumers favouring the right

to know has been growing in global markets, and even in the US market.

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(2012-13) 8 Universitas 29-54

EVERGREENING: IN BETWEEN INCENTIVES FOR

INNOVATIONS AND PUBLIC HEALTH

SAGAR KUMAR JAISWAL

Abstract

Since evergreening of patents is the biggest hindrance in

the access to drugs to the patients all around the globe,

particularly to the patient of developing and least

developed countries, there has been demand all-round

the globe, for decades, to check such abuse. Responding

to such demand, India has amended its Law of Patent.

But when that amended law were applied in denying the

grant of patent for a molecule, proposed by NOVARTIS

to be a patentable one, there were many criticisms by

businesses organization of developed countries that

India, by undervaluing patents, are doing politics. But

who says that the issues in the law of Intellectual

Property are free from politics? Does not this case relate

to overvaluation of patent? Can it be denied that

overprotection of innovation by patent are causing shrink

of knowledge in public domain? Surely, no anyone wants

such shrink to happen. Still, these are happening, and

people are totally confused about the aim and objective

of system of patent. They want answer to question: “of

whose interest the law of patent is working for —

individual, public, or government?”Their question is

right in the sense that while both government and

pharmaceutical companies are making money, it is only

the public whose interest is becoming thin gradually.

Public health, which in the past was a state’s

responsibility, now has become unaffordably a private

burden. An Attempt is made in this article to examine the

issue of evergreening of patent in the perspective of

public health.

Keywords: Patent, Evergreening, Public Health.

Contents

Introduction

1. Meaning, Concept and Scope

(A) Patent Tickets

SAGAR KUMAR

JAISWAL

~ Law School, Banaras

Hindu University,

Varanasi, India;

adv.sagarjaiswal@

gmail.com.

Sagar Kumar Jaiswal received his M.Sc. in Mathematics from Purvanchal University, India & LL.B from Banaras Hindu University, Varanasi, India, and is currently a Ph.D candidate in Law in Banaras Hindu University, where his research focuses or the element of public interest in the law of intellectual property from Indian perspective.


(B) Continuation Application Practice

(C) Defensive Patent Aggregation

(D) Patent Term Extension

(E) Regulatory Data Protection

(F) Patent Linkage

(G) Brand Migration

(H) Unhealthy Agreements

2. Why Evergreening is Considered an Abuse

(A) Abuse of Evergreening Strategy other than Related to Secondary Patent

(B) Abuse of Evergreening Concerning to Secondary Patent

(i) Anti-Competitive Practice

(ii) Anti-Balancing Act

(iii) Assumption of Flawed ideologies

(a) First Flaw

(b) Second Flaw

(c) Third Flaw

3. How Serious is the Issue of Evergreening

4. Problem of Developing and Least Developed countries

5. Elements of Politics: Global versus Regional

6. Safeguarding the Public Health: Goodbye to Fringe Innovation and Good

Moring to Bolar

(A) Adoption of Strict Patentability Standard

(B) Introduction to Bolar Provision

7. Legal Justification of such Attempts

8. Other Problems Concerning the Health Care in India

(A) Role of Doctor

(B) Lack of Infrastructure

Conclusion & Suggestion

INTRODUCTION

The term “evergreening” is used to refer a kind of tree which is different from

deciduous one in the sense that unlike latter that loose its leaves annually, the former

has leaves all-round the year. In law, the term is nowhere defined. But by analogy,


the term is used to refer some strategies of patent owner by the effect of which the

monopoly right over the mother invention remains unexpired in the sense that

monopoly right over daughter invention (i.e., improvement on mother invention),

very often fringe by nature, become alive. While the term is used for all kind of

innovation, the trend in filing of patent applications for the last three decades in all

over the world reveals that it is closely associated with pharmaceutical sectors. A

number of patent applications come before the Patent and Trademark’s office,

wherever in the world, inform that: of all the category of filing, pharmaceutical is

dominant one; its dominancy is qualified by claiming patent on improvement over

mother invention. Although the patent system allows patent on improvement on

invention, evergreening—because of its tendency to extend the dimensions and

longevity of patent—is considered an abuse in the eye of law of Patent and

Competition, as well. The abuse is seen in light how serious the impact of

evergreening of pharmaceutical patent is on Public Health. Attempts have been made

to safeguard the public health against the problem with evergreening, but it is yet to

see upto how much extent these safeguards will prove to be effective solution to the

various problems of public health, prime among them is affordable access to patented

drugs. In addition, it is also to be seen: would solution to evergreening be solution to

poor health condition in India?

Part 1 of this paper describes meaning, concept and scope of evergreening of Patent.

Part 2 gives reasons why the strategy of evergreening is considered an abuse. Part 3

tries to understand how serious is the issues of evergreening. Part 4 explains the

problems of developing and least developed countries about this issues. Part 5 links

this issue to the international politics. Part 6 reports remedial measures India has

adopted to check such abuse. Part 7 justifies the remedial measures adopted by India

towards securing the public health. Part 8 describes the condition of public health

care and argues that evergreening is not the sole factor responsible for poor health

condition in India. Finally, this paper in next Part concludes with some

recommendations that India should make a leading attempt at global level to bring

down the high price of patented pharmaceutical product. The conclusion is then

followed by suggestion.

1. MEANING, CONCEPT AND SCOPE

Evergreening, though not a formal legal concept, is a term referring to a way in

which patent owners of pharmaceutical products use law to extend their monopoly

privileges beyond periods that are normally allowed by law, particularly over high-

revenue-earning drugs. The way suggesting the extension of monopoly period is:

pursue for secondary (also called second generation or follow up) patent. Secondary

patents are patents directed to new developments or improvements of the subject-


matter of the basic patent.1 It is an incentive for incremental innovation. If the subject

matter of basic patent is a chemical compound (drug, medicines, or otherwise),

modification in respect to basic compound may be in the nature of: purity;

metabolites; polymers; new salts, esters etc.; crystallites; combination with other

substances; thermo-dynamic reaction; bioavailability; manufacturing process;

methods of treatments; and like.2

However, the term evergreening has also been used in connection with marketing

strategies allegedly employed by brand name pharmaceutical firms. According to

European Generic Association (EGA) evergreening is a “life-cycle management

plans” composed not only of patent strategies, but an entire range of practice aimed

at limiting or delaying the entry of a generic product onto the market.3 While most of

these strategies are, in the strictest sense, legal, most represent a misuse of

pharmaceuticals patents and the regulations governing authorization. The details of

these strategies are as follows:

(A) Patent Tickets

Also called “patent cluster” or “patent flood” is a strategy of filing numerous

additional patents for the same invention. By doing so patent become a dense web of

overlapping patent rights requiring that those seeking to commercialize obtain license

from multiple patentee.4

(B) Continuation Application Practice

Stated generally, a continuation application is one that has been “re-filed” at the

patent and trade mark office. Among other benefits, continuation patent applications

1 Mueller, Janice M. &. Chisum, Donald S., (2008) Enabling patent law’s inherent

anticipation doctrine, Houston Law Review 45, 1101. 2 See, Sec.3 (d) of Patent Act, 1970. See also, Thomas, John R. (2005), Pharmaceutical

patent law, Bureau of National Affairs, pp. 38-46. (“Secondary patent can be obtained by filing an application for Patent on: purified form of the compound; new salts, esters, polymorphs and like such; species from the genus or sub-genus (selection invention); metabolites; crystalline form, new formulation; combination formulation (with another substance); new manufacturing process; delivery route; dosage regimen; new therapies; pharmaco-kinetic/therapeutic parameters; indications; new method of use; packaging/patent instructions.”)

3 See, European Generic Medicine Association, available at: http://198.170.119.137/gen-evergrn.htm, last visited on 10.04.2013

4 Shapirol, Carl (2001, January): Navigating the patent thicket : Cross licenses, patent

pools, and standard-setting, Jaffe, Adam B., Lerner, Josh & Stern, Scott (ed.), Innovation Policy and the Economy, Vol.1, pp.119-150) MIT Press. Retrieved from www.nber.org/chapters/c10778; Sowbhagya, V. Rani (2013, April), Pharmaceuticals

is engulfed in an incredible patentthicket -An Analysis, Indian Journal of Applied Research, 3:4, 214-215


allow inventors to extend the period of examination at the office in order to amend

existing claims or submit new ones.5

(C) Defensive Patent Aggregation

It is the strategy of purchasing patents or patent rights to keep such patents out of the

hands of entities that would assert them against operating companies. The opposite is

offensive patent aggregation which is purchasing of patents in order to assert them

against companies that would use the inventions protected by such patents (operating

companies) and to grant licenses to these operating companies in return for licensing

fees or royalties.

(D) Patent Term Extension

It is practice asking for grant of exclusivity period for certain time period. It is

possible that a pharmaceutical company may not have opportunity to exploit the full

terms of patent terms (20 years as per the TRIPS). To give full use of exclusivity

period to patentee, legislation of many countries allows a term of maximum 5 years.

The Applicant must show that there was unreasonable curtailment of the opportunity

to exploit the patent caused by the marketing approval process.6

(E) Regulatory Data Protection

Say Data Exclusivity, or Regulatory Data Protection, or otherwise, all refer to

protection of clinical test data required to be submitted to a regulatory agency to

prove safety and efficacy of a new drug, and prevention of generic drug

manufacturers from relying on this data in their own applications. The United States

and European Union grant data exclusivity for 5 years and 11 years respectively.

Until now, there is no data exclusivity provision in India’s drug laws.

(F) Patent Linkage

5 See Ganzi,Gary C. (2007, July), Patent continuation practice and public Notice: Can

they coexist?, Journal of the Patent and Trademark Office Society 89, at 545. See also, (2006, May 2) Letter to the Honorable Jon Dudas, Under Secretary of Commerce and Director of the USPTO, from David E. Korn, Assistant General Counsel, Pharmaceutical Research and Manufacturers of America, 3. Retrieved from http://

www.uspto.gov/web/offices/pac/dapp/opla/comments/fpp _continuation

/phrma_con.pdf. 6 Dey, Sushmi (2013, April 12), Law change linked to EU's demand for wider patent

term, Business Standard, New Delhi, available at : http://www.business-

standard.com/article/economy-policy/law-change-linked-to-eu-s-demand-for-wider-

patent-term-113041000500_1.html.

It is notable that India has not adopted such kind of legislation giving right in favour of patentee to ask for patent term extension. This is TRIPS plus provision. As such, it is not mandatory.


Patent linkage is the practice of linking drug marketing approval to the patent status

of the originator’s product and not allowing the grant of marketing approval to any

third party prior to the expiration of the patent term unless consent is given by patent

owner.7 It essentially requires that the generic manufacturer proves to the drug

regulator that the drug, for which he seeks approval, is not covered by a valid patent.

(G) Brand Migration

Innovator companies use “brand Migration” as an alternative in order to extend

product life cycles and delay competition wherein when one ‘brand name’ Product’s

patent and its associated exclusivity is near expiry, innovator companies start

directing patients’ attention to the company’s other product viz., a new branded

product that is heavily promoted to both patients and physicians.8

(H) Unhealthy Agreements

This anticompetitive practice is followed widely by innovator companies which try

to prevent the entry of corresponding generic product in the market. The innovator

companies conspicuously come to an agreement with the generic manufacturers to

delays or eliminate specific generic drugs from entering the market.9

2. WHY EVERGREENING IS CONSIDERED AN ABUSE

There are some principles of economics, one amongst them provides: competition—

because of its ability to reduce the price of goods offered for sale—is beneficial to

consumers. However, this principle of competition in relationship with consumer

benefit is not unqualified. The same competition- because of its tendency to

compromise with the quality of product- become scurse to the consumer if the

purchased product is found unsuitable to their requirement. The corollary to the

general principle of competition applies very well when chemical product,

particularly, drugs and medicine is purchased. For instances, it is common experience

that old chemical is found incapable of killing new kinds of insecticides or pesticides.

Similarly, old drug is found not working in treating new disease. The chemistry of

ailments is not a static entity; it changes time to time in response to the changing of

environment we live in. The existence of living being depends too much on how he

adapts to changing circumstances. Human being is a dynamic entity whose ability to

7 Galantucci, Roberrt (2007) Data Protection in a US-Malaysia free trade agreement:

New barriers to market access for generic drug manufactures, Fordham Intellectual Property, Media and Entertainment Law Journal 17, 1083.

8 Bansal, Sahu and others, (2009, July) Evergreening: A controversial issue in pharma

milieu, Journal of Intellectual Property Rights, 14, 299-306. 9 Scot, Hemphil C, (2007) Drug patent settlements between rivals: A survey, 1-49,

available at: http://paper.ssrn.com.


develop depends too much on fruits of science and technology, some among them are

noval. But all that is noval does not come in a day. It requires investment of money,

time, labour and devotion. Only then, a noval thing comes into existence. Thus,

inventing a thing is a tough job; a person who is involved in inventing useful things

must be given privileges if we want that thing available in the hands of all. Patent is

the name of privilege which is used to give to the owner of invention in quid pro quo

for full disclosure of the best method of performing the invention so that the others

are able to use the invention after the expiry of patent rights. The nature of privilege

is monopoly right granted temporally to capitalize the invention. This is a discourse

in the practice of competition. But this discourse, while operating for limited time

period, is considered necessary to ensure the good: one to the society because there is

opportunity to have new things come into existence to address the cause of human

pain and affairs in its long run; another, to the inventors/ investors who may have

opportunity to recoup their investment they has employed in that invention.

Thus, the working principle behind the grant of patent is that “temporally discourse

in competition is good for the sake of competition.” After the temporal period the

exclusive right becomes exhausted and competition starts operating. There is no

scope of restriction to the way to competition thereafter. But what happens when

such discourse tends to be evergreened? Is not this an abuse of law of competition

and intellectual property?

Evergreening of whatever nature is considered abuse because it increases length and

scope of monopoly right governed by law of patent; during the monopoly the price of

patented drug is so high that general people cannot afford such drug. The ultimate

effect of evergreening is that it delays the coming up of generic drug into the market;

generic version of drug is much cheaper in comparison of patented version, and thus

affordable to all. The incoming contents of this section of present article will disclose

the specific abuses that are caused by each evergreening strategy. For convenience,

disclosure of abuse concerning to secondary patent has been separated from other.

(A) Abuse of Evergreening Strategy other than that Related to Secondary

Patent

Patent tickets cause difficulty to generic competitors to see whether they can develop

a generic version of the original medicine without infringing one of the many (new)

patents of originator companies. The fivefold harmful consequences of patent

continuation application are: they cause delays in processing of patent applications;

they create significant uncertainty among Competitors; they wear down the

examiner in processing the application; they provide chance to applicant to change

the claim; and, they appears on surface by surprise and frustrate the competitor’s


industry.10

The problem with defensive patent aggregation is that it weakens the

opposition proceeding in the process of grant of patent. Patent term extension gives

extra time for positioning the market monopoly. The evil of Regulatory data

protection is that it does not allow the generic drug company to rely on the clinical

test data of patented drug upto certain period and thus increase cost of generic

medicine unnecessarily. The trouble with patent linkage is that if patent exists,

marketing approval will not be granted to a generic drug until the patent has expired

or is found to be invalid. Brand migration tactics persuades the consumers to bear the

high cost of another patented drug the generic version of which is available.

Whereas, the case of unhealthy agreement is a case of anti-trust which in fact is

cheating to consumers.

(B) Abuse of Evergreening Concerning to Secondary Patent

Evergreening strategy of filing secondary patent needs special attention. This is

because pursuing a secondary patent per se is not an abuse of law. Law gives equal

treatment to incremental innovation (i.e., secondary or second generation invention).

Improving a known substance constitutes a valid patent claim if the requirements for

inventiveness are met. The improved product must not be anticipated by prior art,

i.e., it must be noval. It must be industrially applicable. It must differ significantly

from the old product in a technical sense, and as such it must not be obvious to a

person having ordinary skill of art. In this way, there is no different patentability

requirement, (i.e., novelty, industrial applicability, and inventive step) for different

kind of invention. In the eye of the law both breakthrough and incremental invention

have importance, though varying in degree provided that they must not be debarred

by law. The importance of secondary invention can be understood in the sense that

Breakthrough invention is rare, and many a times secondary invention is more useful

than breakthrough (i.e., basic or primary) invention. Also, the line between primary

and secondary invention is very much thin, the relationship between the variables, if

it is not physical one is established in both cases by the rule of cause and effect, some

is established in short span of time, some take very much long time. In both cases,

the relationship is established by chance. But the problem is that no one knows when

it would happen. Furthermore, incremental invention is not free from high rate of

10 Lemley Mark A. and Moore Kimberly A. (2004) Ending abuse of patent continuations,

Boston University Law Review, 84:63, 63-118, Retrieved from http://www.patenthawk. com/blogdocs/2004ContinuationsLemley&Moore.pdf.


failure and low probability of success11

. But in any manner, human and economic

investment incurred by the both kind of invention cannot be denied.12

Nevertheless, evergreening strategy of pursuing secondary or incremental invention

is considered abuse. The reasons for such perception are discussed under the

following head:

(i) Anti-Competitive Practice

20 years is a social cost behind the grant of monopoly right to the patentee. During

this period society has to bear the cost of patented drug. But twenty year is not a

short span of time, during this period society has to experience the change which

occurs with the development of time. Change occur all rounds the circumstances. It

also occurs in the Bio-chemistry of living being. Old drug may or may not be

working. Even if it works, there may be variation in the degree of

working/efficiency. Still the society waits for expiration of such a long time. The

reason for such a prolong waiting is that society want generic production of the drug.

And it is inclusive in jurisprudence of generic production that the drug be made

compatible with the changed circumstance so that it could work. But if the generic

productions in this stage is prevented on the ground that someone else has made

increment in the subject matter of basic patent and get that incremental subject matter

patented, it is a clear cut case of violation of consumer expectation. It is also a case

of violation of market behavior. Hence, evergreening strategy of pursing secondary

patent is considered anti-competitive. All the reasons behind the abuse of monopoly

practice can be cited as applied also to the case of abuse of evergreening of such

kind. Monopoly concentrates the economic power in a single entity that can dictate

the prices of most products, eliminating competitively low pricing and creating a

need for rapid inflation. So also is the evergreening of such kind which is responsible

for high price of pharmaceutical product.

(ii) Anti-Balancing Act

The law of competition and law of Intellectual property are complementary to each

other. What the law of competition tries to avoid is found mentioned in law of

intellectual property as private interest of monopoly nature exist for time being

(trademark being exception of this), and what the law of competition try to focus is

found mentioned in the law of intellectual property as element of public interest.

11 Bhaskaran, S. (2006), Incremental innovation and business performance: small and

medium size food enterprises in a concentrated industry environment, Journal of Small Business Management, 44, 64-80.

12 Min, S., Kalwani,M.U. & Robinson, W. T. (2006), Market pioneer and early follower

survival risks: a contingency analysis of really new versus incrementally new product-

markets, Journal of Marketing, 780, 15-33.


Both kind of rival interests then form the law of intellectual property as balanced.

The very existence of the law of intellectual property rests on this balance. With the

demise of this balance the intellectual property right remains no longer a right to be

called as justified. Evergreening strategy of pursing secondary patent lessens the

weight of element of public interest, thereby tempering justification of intellectual

property right. Any extension to exclusivity period envisaged by evergreening

strategy of such kind would be a serious blow to public health and to the doctrine of

intellectual property as well.

(iii) Assumption of Flawed Ideologies

If in an argument a conclusion is drawn on the basis of premises which is assumed to

be true, the conclusion is said to be unsound when it is found that premises of

argument is wrong or doubtful in itself. The issue of patent for incremental

innovation is not free from the allegation of assumption of flawed ideologies.

(a) The First Flaw

The first flaw is based on the assumption that Technology Transfer, FDI and

protection of innovation encourage the economic development of poor countries and

is helpful in alleviating the poverty of these countries. How much wrongful this

assumption is, this can easily be examined on the basis of objective fact. While

examine it is observed that technology transfer and Foreign Direct Investment (FDI)

have not been unquestionably successful in our country. This is because the entry of

these things in our country is always seen in relation to social cost. When seen, it is

observed that right from the adoption of trade liberalism the country has been

witnessing facts showing : (i) continuous fall in the integrity, morality, social

behavior, equality, patroncity of its citizen; and (ii) continuous increase of

inequality, unemployment, poverty, mass corruption, social insecurity, indifference,

and selfishness, family disintegration, and brain drain, of its citizen. Also, it is

observed that after the compliance of the TRIPS agreement, almost eight years have

passed, and our dependence on international market has not been lessened. Rather, it

has been increasing day by day. Consumer markets are full of foreign product, and

the local industries are in the way to come to an end. The balances of payment in the

international trade of our country are continuously showing negative indication.13

In addition, there is nothing to be relied on the theory that protection of innovation

encourages information dissemination. It is a known fact that not all the invention is

patented. Only those innovation are patented which are vulnerable to imitation.

Where there is no scope of imitation, business practice is trade secret. It is evident

13 With the unhealthy increase in the import of foreign goods, our balance of payment

has reached on the month of May, 2013 to an alarming label. See the Report of Reserve Bank of India, available at http://www.rbi.org.in/scripts/

BS_PressReleaseDisplay.aspx?prid= 29662.


and hence need no mentioning any account as to how much national revenue each

year is going out of country in purchasing the consumer product bearing trade secrets

(for example, soft drink, etc.) Hence, information feudalism and not information

dissipation is the general rule of business.

Further, the conduct of drug companies is not free from criticism. Many a times it is

observed that Drug Companies adopts the policy of price difference. While selling

their product in different countries, they adopt policy of price differentiation, setting

price levels according to what the market can bear. In a country where alternative or

generic medicines are available, a company's branded product is usually priced

lower. However, the same brand is sold at higher prices in other countries where

there is no competition from generic producers. How then one can think that

protection of innovation helps in economic development of poor country?

(b) Second Flaw

The second flaw is in the ideology that patent is essential for recouping the cost of

Research and Development of new drug and medicines the generic production of

which would cause unfair competition. The problem with this ideology is that not all

the investment made by pharmaceuticals is related wholly to research investment. An

economic watch on the activities of pharmaceutical companies, from companies’

balance sheet, suggests that pharmaceutical companies spend more (almost two or

three times) on marketing and administration than on research and development.

(c) Third Flaw

The third flaw is based on the supposition that no research and development or

innovation is possible without granting patent for innovation. The error in this

ideology becomes explicit when review is made of literature. Duffield has

successfully shown that patents are not necessary to create research incentives to

invent treatments for global as well as neglected disease.14

Literature review reveals

that early American growth was fuelled by simply ignoring European intellectual

property law.15

Likewise, it is revealed that Indian pharmaceutical sector was in peak

14 Dutfield, G. (2003), Intellectual property rights and the life science industries: A

twentieth century history, Aldershot, U.K: Ashgate, 113-142 15 For instances, see Khan, B. (2008), An economic history of patent institutions.

Whaples, Robert (ed.),EH.Net Encyclopedia) Retrieved from http://eh.net/encyclopedia/an-economic-history-of-patent-institutions/; See also, Bugbee, Bruce, The genesis of american patent and copyright law. Washington, DC: Public Affairs Press, 1967.


when there were no protections to product patent.16

Literature review disclosed also

that system of patent stifle innovation.17

3. HOW SERIOUS IS THE ISSUE OF EVERRGREENING

However, evergreening of patent, in comparison to general economic monopoly, is

more serious abuse because it is connected to matter related to drug and medicines

and hence to the matter related to public health. Article 25 of Universal Declaration

of Human Rights in this regard is very much obvious, for it says: “it is the right of

everyone to have a standard of living adequate for the health and well-being of

himself and his family.” Further, right to health is found mentioned in the

constitution of various countries. India is not an exception. Part IV of the

constitution of India has made this right an obligation of the state to provide this to

its citizen. The Hon’ble Supreme Court, in the case of Consumer Education &

Research Centre v/s Union of India18

held that right to health and medical aid to

protect the health is a fundamental right under Article 21. In Parmanand Katara v/s

Union of India19

Supreme Court had already made clear that the right to health and

medical assistance is a fundamental right under Art.21 and derives its life and breath

from the Articles 39 (e), (f), 42 and 47 of the Directive Principle of State Policy

(DPSP), particularly Articles 39 (e) and (f), 41 and 42.

The intensity of seriousness in the issue of evergreening of patent can be understood

by keeping oneself abreast of some recent facts which reveal that in the developing

and least developed countries across the world the death toll is very high because of

the people’s inaccessibility to effective and affordable lifesaving drugs. According

to report of World health Organization (WHO), infectious disease kills over 10

million people each year. The leading causes of illness and death are HIV/AIDS,

respiratory infections, malaria, and tuberculosis. The gravity of the problem can be

understood when we acknowledge that each day eight thousand people die of AIDS

only.20

But the rule of nature is not free from biasness. Its treatment towards

16 Chaudhuri, Sudip (2005), The WTO and India’s pharmaceuticals industry (Patent

protection, TRIPS, and developing countries), Oxford University Press, 2005. 17 Patent system provides incentive to patent holders to extend the life of their patents

and to prevent others from developing new innovations. See Macdonald, Stuart (2004), When means become ends: Considering the impact of patent strategy on

innovation, Information Economics and Policy, 16, 135–158 (“…the patent system is essentially anti-innovative… it benefits the large pharmaceutical corporations most and is designed to meet their requirements”); See also, Boldrine, Micle& Levine, David IK.(2008), Against intellectual monopoly, Cambridge University Press.

18 AIR 1995 SC. 922. 19 AIR 1989 SC. 2039. 20 Report of World Health Organization, available at: http://www.who.int/infectious-

disease-reports/ch2text.html, (“…Every three seconds a young child dies - in most


developing countries and least developed countries is rather harsh in comparison

developed country. This can be understood by observing the fact that: of all killed

due to infectious death, 90 per cent belongs not to developed countries but to

developing countries coming21

(from the region of Asia, Africa, and Latin America.)

This is what about infectious diseases. But toll, in connection to health care, take

place also due to other Medicare problem, for example, cancer, heart Attack, Brain

hamrage, paralysis, etc. Of all types of health care cases, infectious diseases, or

otherwise, the core issues is affordability of medical treatment. It is this core issues

upon linking up with the issue of evergreening force us to think— in every walk of

life, in every time and every place—about answer to the question: what kind of

development we claim in Science & Technology if they are unable to cure a patient

simply because of his unaffordability to bear the cost of medicine? Thus, there is

public outrage over the problem of access to drugs and the role of paten law regime

in the increase of the prices of drugs. The drug companies are enjoying the

monopolies over the production and marketing of life saving drugs as they are

allowed to fix prices at exorbitant rates to make optimum profits, and people are

dying of illness simply because they cannot afford high priced drug.

4. PROBLEM OF DEVELOPING AND LEAST DEVELOPING

COUNTRIES

Health is one of the most important personal assets, and medicines play an essential

role in preserving it. But if millions of people all around the globe lack access to

comprehensive health care and evergreening of patent is hindering the way to drug

accessibility in affordable price, it is a matter of shame on the face of humanity,

science, technology and development. Moreover, It is a matter of investigation, if not

shame, why developing or under developed countries has been failure in securing the

health of their citizen?

In answer to the question mentioned just above there are a number of accounts of

privileges of historical advancement which go in favour of developed countries.

Upon looking into the history it is found that most of developed countries had

historical advancement like, healthy civilizational growth, strong and static political

set up, quality institutional development, etc. This historical advancement helped

them to emerge as a powerful political nation. Almost half of countries in the globe

cases from an infectious disease…Every day 3000 people die from malaria…Every year 1.5 million people die from tuberculosis and another eight million are newly infected…The AIDS epidemic alone has left over eight million children orphaned. To make matters worse, families risk being driven into debt through lost earnings and high health care costs - trapping them in a vicious circle of poverty and ill-health.”)

21 Research Project on neglected diseases disclosed on 19.07.2011. Retrieved from http://actu.epfl.ch/news/research-project-on-neglected-diseases-4/


were the colonies of developed countries like UK, Spain, Portugal, etc. These

countries made full use of their power in exploiting the natural resources of their

colonies. They made every effort to make their citizen enriched while belittling the

citizen of their colonies. Be it legal, economic, political or educational systems, all

were made and designed in such a way that that they would prove to be beneficial to

their original countrymen. In the latter half of eighteenth century industrial revolution

took place. The revolution had a close link to Innovative method of production and

law of patent. But the blessings of that revolution were the dictation of developed

countries. Most of developing and under developed countries were the consumers of

factory production of developed countries, and that, too, at the cost of their local

production. In the account of developing and under developed countries there were

no advantages22

of historical factors, even if some of them retained extensive natural

advantage. After the end of Second World War some good signs came in the favour

of developing counties, their colonial status came to an end and they became

sovereign states. But there were no good thing which could give a sense of proud to

such sovereign state, the socio, economic, political and educational condition of these

states were in a pitiful condition. Poverty, illiteracy, ill health, and unemployment, all

had arrested the growth of these states. These were problems and challenges to such

sovereign states, and were so comprehensive that these are still being faced by most

of them. No ideal condition has yet been developed so that research and development

in science, whether fundamental or technological, can takes place. These sorry

conditions are helping developed country to maintain the status of producer country

the consumers of which are developing and least developed countries. Where there is

no case of reverse engineering, the above observance fits substantially to

pharmaceutical venture. Most of the innovative drugs and medicines come from the

developed countries, rest countries are their consumers. These rest countries have no

access to these innovative drugs and medical equipment because these are under the

protection of regime of patent which every member country of World Trade

Organization (WTO) is bound to respect.

5. ELEMENT OF POLITICS: GLOBAL VERSUS REGIONAL

Upon looking in depth it is found that system of pharmaceutical patent has a close

relationship with economy of a nation. By managing this system properly a

government can earn enough revenue. This is because patent is a bundle of right,

these rights can be licensed, license is necessary to produce a product, product then

go to market for sale, sale is followed by high price, and it is not a hidden fact that

the higher the price, the higher is the tax revenue to government. Thus, the issue of

22 For example, when India becomes independent, only 20 % of its population was

educated.


evergreening of patent is not such that is concerned to law only. It has a connection

with the element of economics as well. The economic nature of issues then partake

political nature when the beneficiary of this system tries to globalize this system and

there are resistance all round their attempts by rest of the countries that are losers of

this system.

One must take note that industrial countries from the very beginning of journey of

intellectual property tried their best to form a global law for protection of intellectual

property. However, if anything which came in the way to their expectation, it was

regional politics. Patent is the strongest form of intellectual property and every

country had adopted patent policies in a way that suits them best to their regional

economic and political condition.23

This was the reasons with the support of which a

number of variations in the provisions of law of patent were made at regional level24

.

These variations were in the provisions providing subject matter of patent, nature of

patent application, method of patent examination, method of oppositions, nature and

period of protection, working of the patent, Compulsory Licences, exceptions to

patent infringement and like such.

Many attempts were made by industrial countries to harmonize these variations25

.

The variations, upto considerable extent, could harmonize anyhow by the role played

by agreement of Trade Related Aspects of Intellectual Property (TRIPS). Under the

terms agreed upon by signatories of GATT, every member country is bound to

comply with the minimum standards stipulated under the Agreement and

consequently each member had to necessarily amend his national legislation to suit

the requirements under the TRIPS Agreement. Industrial countries, most among them

are developed countries, have been successful in getting relief from eclipse of

product patent regime. For that they made successful representation that drugs and

23 Patent connection to political and economic condition of a nation can also be

understand in the word of Justice Ayangar: “It would not be an exaggeration to say that the industrial progress of a country is considerably stimulated or retarded by its patent system according as to whether the systems suited to it or not”. See para 16 of page no. 9 of Report by Justice N Raja Gopala Ayangar on Patent Law Revision submitted in 1959. See also, Michel on principal national patent system, 1, P.15, Referred to by Supreme Court of India in Novartis A.G. v/s Union of India (“…patent system are not created in the interest of the inventor but in the interest of national economy. The rule and regulation of the patent systems are not governed by civil or common law but by political economy.”)

24 For example, Justice Ayanger reported in favour of end of regime of product patent because it was found by him unprofitable from national point of view.

25 For example, Paris convention resolved into the system of PCT filing.


medicines can easily be imitated by the method of reverse engineering,26

and if the

protection was not enlarged from process of making them upto the inclusion of

product (i.e., drug and medicine) itself, the generic production of the same would

destabilize the innovative enterprises. Now, there is harmonized law on patent

recognizing the minimum levels of protection which every country is bound to give

(if certain conditions are met), and protection for product patent is no longer an

exception to the general protection envisaged in TRIPS. This is what industrial

countries wanted to see in the agreement.

After the implementation of TRIPS the dream of industrial countries started

realizing. They are now collecting revenue from the business profit of the

pharmaceutical companies. Neither the government of these countries, nor the

pharmaceutical companies of these countries have any concerns about the issues of

public health. The governments are inadvertent to this issue and drug companies

seems in no mood to compromise with public welfare.27

Rather, they entered into

practice of follow up patent, i.e., pursing patent for incremental innovation. This

practice allows a drug company to have a patent protection for modification made in

the subject matter of basic patent. But there have been objections by developing and

least developing countries about such practices. To them, trivial nature of

modification (for example, change in colour of tablet, dosage, etc.,) in the innovation

had not been anticipated in TRIPS, and any protection to such kind of practice would

lead to serious impact on public health. But who listens of whose?

6. SAFEGUARDING THE PUBLIC HEALTH: GOODBYE TO

FRINGEINVENTION AND GOOD MORNING TO BOLAR

Almost 85 per cent of our medicinal requirement was met by import of medicines

from abroad. This was the statistics when we had the law of patent, Patent and

Design Act, 1981and 1911, introduced by British. However, the statistics turn round

180 degrees after 1970 when India adopted new patents legislation, The Indian

Patent Act, 1970; eighty five of our country’s medicinal requirements were met by

our own products. The Act provided only process patent to the pharmaceuticals. It

was the effect of this legislation which allowed the Indian generic industry to

flourish. Indian Pharmas started exporting to countries which does not have the

facility of infrastructure to produce their own medicines. But when India signed the

26 For the generic manufacturers it may be a comparatively straightforward exercise to

reverse engineer a drug product, using the existent product to find its components and thus he need not invest in any core research and development costs.

27 The brand name pharmaceutical company argue that they invest a good amount in conducting the welfare programme. However, it is a matter of investigation what is the proportion of the amount they invested in welfare programme and the amount they earned.


Trade Related Intellectual Property Rights (TRIPS) Agreement in 1994, it became

mandatory for India to provide product patents for pharmaceuticals. Accordingly,

amendments, in three stages from 1999 upto 2005, were made in the Patents Act,

1970 in order to make the law of patent in our country TRIPS compliant. However,

efforts were also made to make this legislation ensuring a balance between the

incentives to innovation and countries’ commitment to protect and promote public

health considerations, not only of its own people but in many other parts of the

world. Two such efforts which have a direct bearance with countering the effect of

evergreening are:

(A) Adoption of Strict Patentability Standard

Patent law does not distinguish between “breakthrough” and “incremental

improvements” in terms of patentability requirements. The definition of invention

includes within its scope any new and useful improvement of any manner of

manufacture, article or substance whether patented or otherwise. This means that the

improvement in order to be patentable must independently satisfy the test of

invention. To qualify for a patent a drug must, just like any other invention, satisfy

the criteria of novelty28

, of inventive step29

, and of being industrially applicable.30

However, the law of patent in India imposes strict patentability norms with regard to

improvement in invention. Not all that is improved invention is patentable. Section

3(d)31

of the Patent Act, 1970 does not recognize the invention which is 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 which is mere discovery of

any new property, or which is new use of a known substance, or which is mere use of

a known process, machine or apparatus unless such known process results in a new

product or employs at least one new reactant.” To make the matter more clear the

section is appended with explanation which provides that: “for the purposes of this

28 A patent is not granted for anything which is not new; invention anticipated by

publication in any document or used in the country or elsewhere in the world before the date of filing of patent application with complete specification destroy the novelty and prevents a patent being issued or, if issued in ignorance of such a publication, this will subsequently cause the patent to be declared invalid if sought to be enforced. See, Sec 2(1) (j), Patent Act, 1970.

29 A patent cannot be granted for anything which is simply an obvious development or variant on any individual piece of information which is part of the state of the art. Sec 2(1)(j) of Patent Act, 1970 define inventive step as a feature of an invention that involves technical advance as compared to the existing knowledge or having economic significance or both and that makes the invention not obvious to a person skilled in the art.

30 This means capable of being made or used in an industry. See Sec 2(1) (ac). 31 The provision has been introduced by 2005 amendment.


clause, salts, esters, ethers, polymorphs, metabolized, pure form, particle size,

isomers, mixtures of isomers, complexes, combination and other derivatives of

known substances shall be considered to be the same substances, unless they defer

significantly in properties with regard to efficacy.”

In the background of this provision there were four days highly insightful

parliamentary discussion on the bill to amend the Patent Act, 2005, and 80% of that

discussion was centered on medicines and drugs. There were fears among the

members of parliament about the evergreening strategy of pharmaceutical company,

and they wanted to remove the provisions that allowed evergreening effect. They

were aware of the concerns of other developing countries and least developed

countries, the concerns was the ill impact of evergreening on public health because

India have been supplying about 50 % of cheapest drugs in the most part of the

world. This section is incorporated to meet the expectation of parliamentary debate.

The section is helpful in checking the evergreening effect of patent.

Case Studies : The section finds attention of the globe when a giant Switzerland

based Pharma Company NOVARTIS has filed the application of patent (no.

1602/MAS/1998) for beta-crystalline form of imatinib mesylate (commonly known

as Glivec), at Chennai Patent Office India on July 17, 1998. While the examination

of the application was still pending, Novartis filed a suit against Indian companies

producing and marketing generic version of cancer drug imatinib. The company was

granted interim relief as one of first exclusive marketing rights (EMR) in India. After

the Indian Patents (Amendment) Act 2005 came into force, the proceeding for

examination of application started. There were six independent pre grant oppositions

that were filed under Section 25 (1) of Indian Patents Act, 2005 in order to oppose

the grant of patent to NOVARTIS. Of the six oppositions filed one was withdrawn,

and other five were examined by the Controller. After hearing the Opponents,

Controller refused to grant the patent on the grounds that beta crystalline form of

imatinib mesylate is the salt of known substance and doesn’t show any increase in

efficacy as required under section 3(d). Aggrieved by the decisions of the Controller,

Novartis filed two writ petitions in the Madras High Court: first, to challenge the

order of controller of patent refusing the grant of patent; second, writ to challenge the

validity of section 3(d).

With the constitution of Intellectual Property Appellate Board (IPAB) in 2003, the

Madras High Court transferred the first five writ petitions to IPAB, Chennai for

disposal. The said appeals have been heard and judgment reserved. With respect to

writs challenging the constitutional validity of section 3(d) of the Indian Patents Act,

Novartis made the following two submissions:


First, section 3(d) is inconsistent with article 27 of TRIPS agreement, India is

required to admit that; and Second, since there is no guidelines what to mean

enhancement of efficacy, the section 3(d) of the Patent Act, 1970 confers arbitrary

powers on the Controller to refuse patent applications and hence violates the right to

equality under Article 14 of the Indian Constitution.

The high court, with regard to first allegation, held that it had no jurisdiction to

decide whether the provision is TRIPS compliant or not. With regard to second

allegation the court made clear there is no ambiguity with the meaning of the term

‘efficacy’ as this means ‘therapeutic effect’ in the body. The section provides no

ground for making arbitrary decision by patent controller. Hence, there was no case

of violation of constitution.

With regard to five cases that was transferred to Chennai office of Intellectual

Property Appellate Tribunal (IPAT), which registered these cases as appeal, it was

held by IPAT that appeal cannot be allowed because patentability of subject product

was hit by section 3(d) of the Act. It was against the order of the IPAB that the

appellant Novartis came to Supreme Court.

However, the Supreme Court confirmed the finding of IPAB and held that new form

of a drug must demonstrate an improvement in its therapeutic effect of curative

properties compared to the old form in order to secure patent.32

The Supreme Court

found that the patent product Imatinib Mesylate—an improved version of already

patented compound “Imatinib” in free base form— failed in both the tests of

invention and patentability as provided under clauses (j), (ja) of section 2(1) and

section 3(d) respectively33

. It made clear that although inventions does not mean

altogether new or completely unfamiliar or strange or not existing before, in case of

chemicals and especially pharmaceuticals if the product for which patent protection

is claimed is a new form of a known substance with known efficacy, then the subject

product must pass, in addition to clauses (j), (ja) of section 2(1), the test of enhanced

efficacy as provided in section 3(d) read with its explanation.34

The mere change of

form with properties inherent to that form would not qualify as “enhancement of

efficacy” of a known substance; explanation to section 3(d) expressly exclude these

form (lacking significantly in property with regard to efficacy) from the definition of

invention.35

But what would be the test of efficacy, the Supreme Court made it clear

that since the test of efficacy would depend upon the function, futility or the purpose

of the product under consideration, in case of medicine the text of efficacy can only

32

Novartis A. G. v/s Union of India (Civil Appeal no. 2706-2716 of 2013). 33

Ibidem, para 195. 34

Id., para 192. 35

Id., para 181.


be therapeutic efficacy.36

However, supreme court also made clear that increase in

physical-chemical properties, namely (i) more beneficial flow properties, (ii) better

thermodynamic stability, and (iii) lower hygroscopicity cannot said to be increased

therapeutic efficacy.37

It said: “…increase in bioavailability of drug may be an

enhancement of therapeutic efficacy but that is to be proved.”38

(B) Introduction to Bolar Provision

The key purpose of patent laws is to facilitate the dissemination and advancement of

technical knowledge. If the patent owner is allowed to prevent experimental use

during the term of the patent, it would frustrate part of the purpose of the requirement

that the nature of the invention be disclosed to the public. If the public and

competitors are unable to use patented inventions for genuine experimentation, then

scientific knowledge is retarded and market competition is limited.39

A “Bolar” Provision is the best known of the many limited exceptions to the

patentee’s exclusive rights under Article 30 of the TRIPS40

. This provision permits

any drug manufacturer, to experiment with any patented drug, with a view to

generating data that could then be submitted to a drug control authority. The aim of

this section is to ensure, that generic drugs are introduced into the market as soon as

the patent expires or is invalidated, so that consumers may benefit from this early

entry of affordably priced drug.

The provision is introduced in patent Act, in the year 2002. Indian patent act, 1970

incorporated a provision which allow experimental use of any patented invention and

not just drug related invention as is the case of “Bolar”. In the background of this

provision there is a decision of federal circuit in Roche Prod Inc. v/s Bolar Pharm.

Co,41

for the revocation of which section 271(e) (1) of Patent Act, 35 U.S.C, 1984

36

Id., para 179. 37 Id., para 187. 38 Id., para 189. 39 Strandburg,Katherine J. (2004), What does the public get? experimental use and the

patent bargain, Wisconsin Law Review, 81, 91 (“Patent exclusivity, while promoting inventive progress by providing incentives for innovation, can slow technical progress if the best follow-on inventors are prevented from building upon the inventive idea during the patent term.”)

40 Article 30 of TRIPS provides that member countries may provide limited exceptions to the exclusive rights conferred by a patent, provided that such exception do no unreasonably conflict with a normal exploitation of the patent and do not unreasonable prejudice the legitimate interests of the patent owner, taking account of the legitimate interest of third parties.

41 See, 733 F.2d 858 (Fed.Cir. 1984) (“…experimental use defense could not be interpreted to allow a violation of the patent laws in the guise of ‘scientific inquiry’, when that inquiry has definite, cognizable and not insubstantial commercial


was amended to provide that “it shall not be an act of infringement to make, use,

offer to sell, or sell…a patented invention…solely for uses reasonably related to the

development and submission of information under a Federal law which regulates the

manufacture, use or sale of drugs or veterinary biological products.” Section 107A of

(Indian) Patent Act, 1970 is parallel to section 271(e) (1) of US provision. It provide

that “any act of making, constructing, using, selling or importing a patented

invention solely for uses reasonably related to the development and submission of

information required under any law for the time being in force, in India, or in a

country other than India, that regulates the manufacture, construction, use, sale or

import of any product shall not be considered as an infringement of patent rights.”

The provision relating to experiment and research under the Indian law uses

expansive language and can be interpreted to have a very broad scope. No difference

is made between pharma patent and any other patent. Nor the provision consider

economic objective as a standard to measure whether or not the activity of research

or experiment falls under the scope of infringement/exemption. Moreover, section 47

of the Act provide that the grant of patent is subject to the condition that any

machine, apparatus or other article in respect of which the patent is granted or any

article made by the use of the process in respect of which the patent is granted, may

be made or used, and any process in respect of which the patent is granted may be

used, by any person, for the purpose merely of experiment or research including the

imparting of instructions to pupils.42

Thus, a scientist using a patented product for understanding the functioning of that

product under controlled conditions, without taking permission of the patent holder,

he would not be liable for patent infringement. Similarly, use of a patented invention

for purposes of imparting education to students is also exempted from patent

infringement.

Case study : There is no case law in India that can be attributed directly to the issues

of “Bolar” Provision. But since the matter of exemption on experimental use of

patent is also connected with the regulatory approval of drug and medicines, the

provision is read in defense by generic producers when Patentee Company attempts

purposes”). The judgment of this case was a reversal of common law trend; the trend had been in favour of patent infringement exemption for experimental use of patented invention. Whittemore v/s. Cutter [29 F. Cas. 1120 (C.C. D. Mass.1813) (No. 17,600)] is universally attributed to origin of this type of exemption. Justice Story in this case stated that “it could never have been the intention of the legislature to punish a man, who constructed a [patented] machine merely for philosophical experiments, or for the purpose of ascertaining the sufficiency of the machine to produce its described effects.” Other cases were Sawin v. Guild [21 F. Cas. 554 (1813) (C.C. D. Mass. 1813) (No. 12,391)].

42 Sec 47 (3), Patent Act, 1970


to make patent linkage. The system of patent linkage essentially requires that the

generic manufacturer proves to the drug regulator that the drug for which he seeks

approval is not covered by a valid patent. This creates a duty in favour of the drugs

controller to ensure that marketing approval is not granted to generic manufacturers

in cases where the drug is already covered by an existing patent. Although the system

is recognized in United States, the same is not expressly recognized in India. Bayer

Corporation and others v/s Cipla, Union of India and others43

is a case the judgment

of which express the same view.

The case revolved around sorafenibtosylate, a drug used to treat kidney and liver

cancer. In March 2008, Bayer Corporation was granted a patent by the Indian Patent

Office over this drug, which Bayer marketed under the brand name “Nexavar”. A

month worth of treatment (120 tablets) cost 285,000 rupees. In July 2008, Bayer

became aware of Cipla’s intention to market the generic version of this drug under

the name “Soranib” and contacted the DCGI, requesting that marketing approval not

be granted to Cipla on the basis of Bayer holding the patent. In October 2008, Bayer

filed a petition to the Delhi High Court for a writ restraining the DCGI from granting

the relevant licence.

The court took stand that system of patent linkage could not be inferred into the

provision of Drugs Act and the Patent Act. It said: it a known principle of statutory

construction, which says that the Parliament or the concerned legislature is deemed

to be aware of existing laws when it enacts new legislative measures. Omission to

create specific patent linkage system shows the negative intention of the Parliament.

Such a system was undesirable in the Indian context for the reasons one among them

is that it abrogated the “Bolar” provision.44

It is not irrelevant to mention that the judgment was appealed by Bayer Corporation

before divisional Bench but court found no ground for reversal and hence the appeal

was dismissed. Aggrieved by such dismissal the Bayer Corporation filed special

leave petition before the Supreme Court, however the same was again dismissed.45

7. LEGAL JUSTIFICATION FOR SUCH ATTEMPTS

The provisions of the TRIPS agreement are not that which revolve around all time

protection to innovation in the interest of industrial countries, the beneficiaries of

Patent system. In quid pro quo to the protection of intellectual property, developing

43 2009 (41) PCT 634 (Del); MANU/DE/0316/2010 44 MANU/DE/0316/2010 (…“if the Bayer arguments are accepted, it will hit at the very

essence of the Bolar Provision that is aimed at speeding up generic entry of the market and availability of low cost drugs to the consumer”)

45 On December 2010 Supreme Court dismissed Bayer’s special leave petition. (2010, December 2) Times of India.


countries, in Uruguay round of GATT, were able to secure some provisions in the

agreement by the application of which the abuse of the patent can be reduced. India

has applied these provisions in making anti evergreening law, important among them

are section 3(d) and 107 A. Behind such measures there are adequate legal

justification. The source of these justifications is TRIPS itself. Article 7 of the TRIPS

agreement provides that the protection and enforcement of intellectual property rights

should contribute to the promotion of technological innovation and to the transfer

and dissemination of technology, to the mutual advantage of producers and users of

technological knowledge and in a manner conducive to social and economic welfare,

and to a balance of rights and obligation. Similarly, article 8 of TRIPS provides that

member may, in formulating or amending their laws and regulations, adopt measures

necessary to protect public health and nutrition, and to promote the public interest in

sectors of vital importance to their socio-economic and technological development.

The provision also envisages the need of appropriate measures needed to prevent the

abuse of intellectual property rights by right holders. Likewise, article 27 (2) of

TRIPS agreement envisaged exclusion of such patentability from invention, the

prevention of which is necessary to protect order public or morality.

The justification is further reaffirmed by the Doha Declaration on the issues of public

health. The declaration recognizes the gravity of the public health problems affecting

many developing and least-developed countries. Besides, it recognizes the right of

member countries to take measures to protect public health, and to make use in this

direction of the provision.

8. OTHER PROBLEM CONCERNING TO HEALTH CARE IN INDIA

But is this the only problem developing counties, like India, is facing in connection

to health care of its citizen? Upto what extent can it be justified to say patent

evergreening is solely responsible for denying of health care? Before we reach to the

conclusion and ascribe poor health condition to evergreening of patent, we must look

this problem in the light of heads as under:

(A) Role of Doctor

What and wherefrom are business associated with purchase of medicines, and

patient’s obligation to honour the prescription of doctor is the rule of treatment. But

what is hidden in the prescription of doctor can be understood no better than Owner

Companies of prescribed drugs. The doctor, if he wants to do so, can prescribe

effective generic drug, but who dares to question him why he is prescribing the

patented drug in a case where generic version is available. Prescribing the medicine

and diagnostic test outside the hospital is the common practice, and the doctors who

are doing such practice know the meaning of such prescribing. It is not that there are

no honest doctors. However, they are fewer. And to access these doctors is


equivalent to access to God. But access to God is not an easy task. Everybody is not

lucky to keep himself alive upto to the access to God. But God is easily available to

sales representatives (of pharma companies) offering them gifts of money and kind

for prescribing their drugs. From the consumer’s point of views, this sorts of

doctor’s practice gives no room to bargain the price of medicine even when the

margin of profit of retailer is set at more than 40 per cent. Marketing strategies of this

sector is designed with peculiarity that the patients, once come in the net, would have

no option in their hands to bargain the price of health care.

(B) Lack of Infrastructure

Health of citizen is the wealth of nation. Every government, in the past, be it ours or

foreign, knew this fact. They took health of their citizen their prime responsibility.

However with the development of time and its interplay with modern system of

political set up, limitation become the qualification of available resources, and no any

government of today wants to leave this argument in defense of allegation for not

providing health care to its citizen. A regular denying of its responsibilities has made

the situation very much panic. On visiting public hospitals, even occasionally, it can

be observed that government hospitals are in its way to losing its meaning. People

have started to deviate from this institution. Some have still kept faith in these

hospitals, but most among them are those who cannot afford the high cost of

treatment in private hospital or dispensaries. Among admitted to these public

hospitals, most are almost sure that the Hospital bed in which they are going to lay

could prove to be the last bed of his life. The reasons of such kind of perceptions are

quite obvious. Most government hospitals have no basic infrastructure to deal with

patient’s ailments.46

The relevancies of most of such hospital became confined to

give primary treatment. A serious case is beyond the capability of such hospitals.

Even more, these public hospitals are in the arrest of poor administration, red-tapism,

want of qualified doctor, nurse, technician and, pathologist, unavailability of working

diagnostic equipment (such as, X-Rays Ultrasound, ECG machines, etc.) and

unavailability of essential medicines. It is not that, at least in ours case, there is

dearth of money resources to properly run the government hospital. Improper

allocation of aids and grant by government has become the rule. Corruption has

changed the notion of public welfare to private welfare of politicians, contractors and

officers of this institution.

CONCLUSION & SUGGESTION

Discovery of a new drug is a very risky venture. However, not all that is discovered

is approved by Drug Control Authority for the purpose of sale. But, of all those drugs

46 Of course, there are government hospitals that are working properly. But they are a

few in number.


approved, most do not yield even the costs of the research and development

associated with drug-discovered projects. But is this the status same in case of

discovery of improved drug? This is the matter of investigation. An improved drug

may or may not be efficient. However, putting the justification of cost factor (in

producing the improved drug) has become the fashion of modern argument; and, if

this argument is able to successfully lead into the conversion of monopoly, what is

wrong in pleading it? If patent can be granted over the improvement of existing

invention, should anyone expend huge amount of risk and capital in breakthrough

invention?

The issues of evergreening are not isolated from system of patent. Evergreening is an

informal term that is often used to describe patenting strategies that are intended to

extend patent protection over the same compound. It can occur in a number of ways

but typically arises when companies file and obtain patent, subsequent to the original

patent, on the aspects of the same compound or on reformulations of the original

compound that have no incremental therapeutic value, but which are nevertheless

deemed patentable. However, evergreening is not confined upto this, it is inclusive of

all strategies aimed at limiting or delaying the entry of a generic product onto the

market.

Evergreening is considered an abuse in the eye of law of patent and competition as

well. It at one hand break the rule of principle of economics of competition, on the

other hand, it temper the balance between two rival interest in the law of intellectual

property, particularly the law of patent. Evergreening practice is abusive, it impedes

the introduction of generic medications, and it has a negative effect upon public

health. Moreover, it is based on some of flaw in the ideology that patent in

incremental innovation is necessary for new drug to come into market.

The issue of patent evergreening is a serious one, for it has immediate connection

with public health system. Evergreening of patent leads to monopoly in the

pharmaceutical markets which every pharma company want to have such

advantageous situation for making the money by raising the price of drugs and

medicine. They have nothing to do with the concerns of poor people, comprising 40

% of the population of India and likewise in the world, who cannot afford the high

price of the drug. Similar are the position of the rest of the developing and least

developing country. Almost eight thousand people are dying each day due to non-

access of medicines. The problem of developing and least developed countries are

that they are dependent upon the developed countries for medicines and other health

care equipment. Patent is a matter of international politics and no any country having

good position want to lose advantageous situation of earning revenue.

In order to ensure public health and to guard against evergreening practice, India has

introduced some measures prime among them is adoption of strict patentability norm.


Section 3(d) of the patent Act, 1970 has been amended in order to introduce efficacy

test for incremental invention. When applied this test to the Novartis application for

patent of chemical compound Imatinib Mesylate, it was found that the compound is

not efficient in comparison to Imatinib (base form), an early patented compound.

Next to this measure is introduction of Bolar Provision. India has introduced this

provision by providing that experimental use of patented invention is exemption to

patent infringement. India has made it explicit that in any grant of patent for

innovation, experimental use will be the condition of such grant. The aim of such

provision is that the patentee company will not take benefit of delay of generic

production as is usually seen in lacking this system. Thesemeasures are helpful in

restricting the evergreening strategy of Patentee Company. In a matter, Bayer

Corporation v/s UOI & Cipla, High court of Delhi has made clear that patent linkage

cannot be inferred in India. It is undesirable in the Indian context for the reasons one

among them is that it abrogated the “Bolar” provision. These measures are not

incompatible with provisions of TRIPS, and hence are justified.

But evergreening of patent is not the only factor responsible for poor health condition

of the country. The role of doctors plays major role in treatment of ailment. But if

doctor are engaged in malpractice in prescribing the drugs and test, upto how much

extent would it be justifiable to attribute poor condition of health care to

evergreening of patent? Similarly, no health care can be ensured with poor

infrastructural facilities commonly found in public hospitals. Red tapism,

unavailability of basic diagnostic equipment, poor administrations are some of

ailments of public hospital. Surely, if these ailments of public hospital are not

properly cured of, public health care would remain a dream in India.

Award of patent is good, because it provides the incentives to make innovative

attempt. But care must be taken that no such award be pronounced the effect of

which would have impacts on public good, order or morality. The real problem with

the menace of evergreening is price rice which makes the accessibility of health care

beyond the reach of poor people. Introduction of section 3 (d) along with other

provisions, like Section 107A (i.e., Bolar), are good attempts limiting the scope of

evergreening. But it would be better if price of the patented drug could be brought

down. Indeed, an attempt in this regard needs to be made at global level. It would be

a fortunate event if India would pioneer this movement toward making a consensus

among members of WTO, India being a good representative of interest of developing

and least developed countries. The consensus would be on finding a limit to the

profit that can be earned by patenting an incremental invention, particularly invention

in pharmaceutical sectors.


(2012-13) 8 Universitas 55-74

CONCEPT OF EXTRADITION

Akhilesh Kumar Pandey

Abstract

Crime is a universal phenomenon. Crime and punishment are

always correlated each other. There are no territorial limits

either for the crime or the criminal. Development of

civilization has provided great facilities to both crime and

criminals. With development of civilization, the society has

become more complex in comparison to earlier society. Due

to increase of interaction and complexities in the society, the

roots of crime and criminal deepened more. As the crime

ratio increased, the state came to rescue of the society by

formulating appropriate legislation to curb the crime and

criminals within its territorial limits. As the time passed, the

crime became a more complex phenomenon and it crossed

the territorial limits of a particular state and became trans-

boundary phenomenon. Therefore, it became necessary for

the states to cooperate at international level, so that the

fugitive offenders, who flee to another state after committing

in one State, should not go unpunished. It is possible only

when the fugitive could be taken back to the country within

whose territory he committed a crime the special proceeding

to deliver the fugitive offender from one state to other is

termed as extradition. The extradition is founded on the

broad principle that, it is in the interested of civilized

communities that crime should not go unpunished. It is done

by securing the return of person accused of crime, to the

territory from which they flee in a bid to escape trial and

prosecution.

Keywords Territorial limits, Legislation, Prosecution,

Contents

Introduction

1. Meaning and Definition

2. Necessity and Purpose of Extradition

3. Nature of Extradition

AKHILESH

KUMAR PANDEY


Hindu University,

Varanasi, India;

[email protected]

Akhilesh Kumar Pandey

received his B.Sc. degree

with Botany & Zoology from

Purvanchal University, India,

and is currently a Ph.D

candidate in Law at Banaras

Hindu University, where his

research focuses on

extradition; law and policy in

India.


(A) Extradition as Part of Municipal Law

(B) Extradition as Part of International

4. Basis of Extradition

(A) Aut dedere aut punier

(B) General Practice

(C) Opinio Juris sive Necessitatis

5. Extradition and Asylum : Relation

Right of Asylum and Extradition Practice

6. Extradition and Expulsion : Distinction

Extradition and Expulsion in India

Conclusion

INTRODUCTION

It is universally recognized principle of international law that a States authority ends

at its border. This principle is equally applicable to prosecution of a criminal. If a

criminal succeeds in getting away from the State where he is to be prosecuted, the

prosecuting authorities have normally no recourse but to bring him before their court.

If they want to continue the proceedings against the fugitive criminal in an effective

way, they have to seek the assistance of the authorities of the state where the fugitive

has taken asylum, to come to their aid and to deliver to them, the fugitive this special

procedure of delivering a fugitive criminal from one State to another is termed

“extradition”

The law of extradition is the result mainly of extradition treaties and is based upon

the sovereignty. Extradition has been generally looked upon as a special favour

conceded to the prosecuting State, although according to a view dating to Jean Bodin

and Hugo Grotius every State is bound under international law either to deliver a

fugitive criminal or to try him.1

1. MEANING AND DEFINITION

The term of ‘extradition’, by etymology, is derived from Latin words ‘ex’ and

‘traditum’ which in plain language means ‘delivery of criminals’, ‘surrender of

fugitives’ or ‘handover of fugitives.2

1 Shultz, Hans (1993) The classic law of extradition and contemporary needs, 309,

Bassiouni, M.C. and Nanda, V.P (ed), A treaties on international criminal law, II :

The general framework of extradition and asylum. CCT Publication. 2 Zhenhua Li, (2002) ”New dimension of extradition regime in the fight against

terrorism “ Indian Journal of International Law 42, 156.


According to Encyclopedia Americana, “Extradition in law, is the procedure by

which a fugitive from justice is returned, by the executive authority of the State to

which he has fled, to the executive authority of the jurisdiction in which he is

charged with a crime at the latter’s request”.3

“Extradition” means the surrender by one State to another State of an individual

accused or convicted of an offence outside its own territory and within the territorial

jurisdiction of the other, which being competent to try and punish him, demands the

surrender.4

Encyclopedia Britannica, defines Extradition as handing over of a fugitive from

Justice by the Country in which he is found to country in which he is found to the

demanding him.5 Thus, in general sense it can be said that extradition means,

handing over a fugitive from a country to another country. Extradition has also been

defined by the some learned writers of international law. According to L.

Oppenheim, “Extradition is the delivery of an accused or a convicted individual to

the state on whose territory he is alleged to have committed or to have been

convicted of, a crime, by the State on whose territory the alleged criminal happens

for the time to be”.6 The term ‘extradition’, according to Starke, denotes, the process

whereby under treaty or upon a basis of reciprocity one State surrenders to another

State at its request, a person accused or convicted of a criminal offence committed

against the laws of the requesting State, such Requesting State being competent to try

the alleged offender.7 Normally, the alleged offence has been committed within the

territory or aboard a ship flying the flag of the requesting State, and it is within the

territory of the surrendering States that the alleged offender has taken refuge.

Requests for extradition are usually made and answered through diplomatic

channels.8 Lawrence defines extradition as, “surrender by one State to another of an

individual who is found within the territory of the former and is accused of having

committed a crime within the territory of the latter, or who, having committed a

crime outside the territory of the latter, is one of its subjects, as such, by its law

amendable to its jurisdiction”.9 Another useful definition of Extradition has given by

I. A. Shearer. According to him, “The term extradition denotes the process whereby

3 (1960) Vol. 10, New York: Americana Cor., 672. 4 (1969-70) Words and phrases, 15-A. West Pubishing & Co., 665. 5 (1959) Vol. 10, Chicago, William Benton Pub., 672. 6 (1955) International law : A treatise, Vol. I (Peace), 8th ed. London, Longmans Green

and Co. Ltd. Publication, 696. 7 Starke, J.G. (1994) Introduction to international law, 10th ed ., London, Butterworth

& Co. Publication, 352. 8 Ibidem. 9 Referred to in Tondon, M.P (1971) Public international law. 13th ed Allahabad,

Allahabad Law Agency, 260.


under treaty or upon a basis of reciprocity one State surrenders to another State at its

request a person accused or convicted of a criminal offence committed against the

laws of the requesting State, such requesting State being competent to try the alleged

offender”.10

Chief Justice Fuller of the U.S. Supreme Court in Terlinden v. Ames,11

observed about extradition as “the surrender by one nation to another of an individual

accused or convicted of an offence outside of its own territory and within the

territorial jurisdiction of the other, which being competent to try and punish him,

demands the surrender”.

The general inadequacy of all the definition including the one by the U. S. Court is

their failure to take into consideration the fate of the individual being extradited i.e.

by way of guaranteeing his safety. It is therefore, submitted, that the term should be

defined to mean a process based on reciprocity, involving the surrender of persons

accused or convicted of an offence by one State to another, within the territorial

jurisdiction of the requesting State, with such State having the Jurisdiction to try and

punish the offender in a way that the interest of the accused will not be unduly

prejudiced during the trial. Extradition includes not only the decision of surrender but

also the procedure by which the accused or convicted persons of one State are

delivered up by the latter to the former.12

2. NECESSITY AND PURPOSE OF EXTRADITION

Where a person, who has a committed an offence in one country escapes to another,

what is the duty of the latter with regard to him? The jurisdiction of a state over all

persons within its territorial boundaries and its right in consequence to punish them

for violation of its laws is frequently defeated for the time being by the escape of an

offender into the jurisdiction of a neighboring State. So strictly is the independence

and sovereignty of States interpreted, that not even the repression of the most

outrageous crimes will warrant the exercise by one State of the slightest act of the

jurisdiction authority within the territory of another State. In the famous Savarker

Case,13

the French Government construed its territorial integrity so strictly as to

demand that the prisoner, who had escaped from a British Vessel while in the part of

Marseilles and had been caught and returned to the vessel with the unauthorized

assistance of the local police, should be returned to France and a formal demand be

10 Referred to in Nirmal, B.C, (1998) Adhunik antrrashtreey Vidhi, Delhi, Indian Society

of International Law, 134. 11 Quoted in Words and phrases Vol. 19 (A), 665; See also Gareokwu, MOU (2000)

The pinochet –british extradition episode, Indian Journal of International Law, 40, 73..

12 Bedi, S.D, (1987) Procedure for extradition to and from commonwealth countries, Indian Journal of International Law, 40, 381.

13 Referred to in Fenwick, C.G. (1965) International law. New Jersey, Fourth Indian Reprint Bombay, V.F.S.Pvt. Ltd.


made for extradition. The British Government declined to surrender the prisoner

upon reference of the dispute to the Permanent Court of Arbitration, it was decided

that, “while there were irregularities in the recapture of the prisoner at Marseilles,

there was no rule of International Law imposing an obligation to return him”.

Under these circumstances, a mutual interest in the maintenance of law and order and

the administration of Justice has led nations to cooperate with one another by

surrendering fugitive criminals to the State in which the crime was committed.14

The

purpose of extradition in International Law, according to Lord Russel, C. J. is that it

shall be, “founded upon the broad principle that it is in the interest of civilized

communities that crimes should not go unpunished and it is part of the comity of

nations that one State should accord to another every assistance towards bringing

persons guilty of such crimes to justice”.15

The reason why States cooperate with one

another in this practice, either bilaterally or multilaterally is that it is mutually

beneficial for States or the world community as a whole. Therefore if extradition

works effectively, it may find a great role to play, in helping and maintaining, world

place and security through comprehensive international cooperation in combating or

eliminating serious crimes of internationals concerns.16

The object of extradition is to

present serious crimes from going unpunished, by securing the return of persons

accused of crime to the territory from which they filed in a bid to escape trial and

punishment. The rational consideration here is that the State on whose territory the

crime was committed is in a better position to try the offender than any other State,

as the evidence is most easily available there and the State has the paramount interest

in the punishment of the fugitive and the greatest facilities for ascertaining the truth

and generally ensuring that justice is done.17

On the whole, it is much better to try

accused in the State where he has committed the offence. This is due to following

reasons-

i. That State is very much interested in the punishment of the offender.

ii. It has also better facilities to try him.

iii. Witnesses are available to prove the guilt of the offender.

iv. If the offender is tried in another State, it may not be possible or desirable to

transport all the witnesses to another State where they may have to stay for

months till the case is disposed of, that involves a lot of inconvenience and

expenses also.

14 Ibidem. 15 Gariokwa, Supra note 11. 16 Zhenhua, Supra note 2, 157. 17 Starke, Supra note 7, 352; See also Momudu M.K, (1986) Extradition of fugitives

from nigeria, International and Comparative Law Quarterly, 33, 513.


Thus, the main object of extradition is to punish the fugitive criminals, and it is

necessary to the nations and the whole civilization to ensure the peace and law

and order situation in the entire world. In today’s situations it is more necessary

to punish the fugitive criminals because development of facilities has provided

more chances to the criminals to escape the territory and the concept of

globalization has given many chances for international crimes.

3. NATURE OF EXTRADITION

Some other questions arise with regard to the nature of extradition. The first question

being, what is the nature of extradition? I.e. whether it is a subject of international

law or the subject of municipal law?

Although, the concept of extradition in international law has existed from centuries,

its position in the hierarchical scheme of international law has been at a low rather

low level. In fact, many publicists of International Law did not consider extradition

as a proper subject of international law because for them it is akin to domestic law in

nature and condition.18

(A). Extradition as Part of Municipal Law

According to D. W. Greig, because the nature of the various treaties dealing with

extradition and the actual procedures for extradition depend primarily upon the

municipal law of the State parties to a treaty or involved in the request for surrender

of a fugitive, the subject of extradition is best explained and more readily understood

in its ‘municipal’ context.19

As far as the grant and procedure of Extradition are

concerned, it is primarily a municipal law, in the international law leaves these issues

to municipal law to decide.

Since, customary international law is negative and neutral on extradition, the transfer

of fugitive offender between States is at first conducted by States through bilateral

treaties. But treaties concluded sometimes required the alteration of municipal laws,

in as much as they may affect the fundamental rights of citizens.20

Regarding the

surrender of nationals, extradition treaties are deemed to derogate from private law

rights of the citizens, and the legislation is necessary before they could come into

force. Therefore, States began to make special legislation on extradition. As a part

practice, such special legislation usually specifies each offence for which extradition

may be granted or simply defines extraditable offences by reference to maximum or

minimum penalty which may be imposed and at the same time stipulates the

18 Malik, Sushma, (2000) The changing dimension of extradition law, Indian Journal of

International Law, 40, 789. 19. Greig, D.W, (1976) International law. Second edition, London, Butterworths Pub. . 20 Starke, Supra note 7.


executions for which extradition may be refused. As extradition is decided by

national Courts or decision makers, the special laws has to establish the basic

guidelines of the procedure, or prescribe the specific procedural issues to be followed

in case of any request for surrender of a fugitive offender, thus laying down the legal

framework for extradition within the domestic legal system. In this regard, Belgium

was said to be the first country to bring out its national legislation on the subject in

1833, which is considered as the pioneer in extradition law.21

These special domestic laws at first purport to implement the obligations undertaken

by the States under bilateral extradition treaties, but step by step, they assume the

position of standard laws according to which new treaties are negotiated. In other

words, the provision of new treaty have to be in consistence with the respective

domestic laws, otherwise either the domestic law has to be amended in order to

implement the obligations or the treaty will not be ratified by the authority

concerned, in that most States treat these treaties as those which need to ratified. For

example, U.K. passed its extradition act in 1870, since then, it has been subject to

amendments in the year 1870, 1895, 1906 and 1933. Now it has become the law of

U.K. in the light of which extradition treaties are concluded.22

Until recently some of

the countries did not have their national laws on extradition, in such case, extradition

is done purely in line with its foreign policy. The implementation in those countries

is normally ensured through special arrangements as may be necessary, reference is

usually made to the existing domestic laws on extradition. Thus the achievements of

those countries that have already made their domestic laws on extradition have been

timely absorbed by these countries that have not yet made their own national law on

the subject.23

In this context, bilateral treaties on extradition in turn are supplemented

and enriched by existing domestic laws, which actually serve as the basis for the

negotiation is said primarily to be a national one.

(B). Extradition as Part of International Law

However, the law of extradition is also a part of International law, inasmuch as it

involves the implementation of international commitment of States concerned.24

Since domestic laws on extradition differ from one another in matters such as the

surrender of nationals, the scope of non extraditable offences, evidence of guilty

required by the State of asylum, and the distribution of relative powers of the

executive and judicial organs in the procedure of surrendering the fugitive offenders

21 Zhenhua, Supra note 2, 156. 22 Ibidem 23 Ibid. 24 Hingorani, R.C, (1976) Modern international law. New Delhi. I.B.H.

Publication,155.


the bilateral treaties on extradition vary from case to case in this regard as they are

concluded by the States in accordance with their domestic laws. Aware of the

limitations of bilateral treaties on extradition in the furtherance of international

cooperation and realizing that international treaty is the only means by which States

may create precise binding legal obligation among themselves in a deliberate and

conscious manner, attempts have been made to conclude a multilateral Convention to

regulate extradition requests among States so as to form some generally agreed

principles on this subject. The treaty of Amines in 1802 was the first effort at

Multipartite Convention on Extradition.25

Since then, efforts have been made in this

regard through regional arrangements. For example, the American continent has

witnessed a number of conferences to conclude a Convention among the Latin

American States, The Arab League of Arab States in 1952. The European

Convention of Extradition was signed in December 13, 1957, but at universal level,

such an attempt has failed. Owing to the complications involved on this subject, the

codification committed of the League of Nations had doubted the feasibility of a

general Convention on Extradition. The U.N. International Law Commission has not

yet taken this topic for its consideration for codification despite the inclusion of the

topic of extradition since 1949.26

As the date, the attempts to conclude a general

convention on extradition remains at regional level between groups of State have in

geographical affinity. In the absence of such a general Convention on Extradition,

States have to resort to bilateral arrangements to deal with the matter. Aware of the

urgent need for the establishment of bilateral arrangement are out dated in many

cases and should be replaced by modern arrangements which takes into account

recent developments in international criminal law, and relaying the importance of

Model Treaty on Extradition as on effective of dealing with the complex aspect and

serious consequences of crime, especially in its new forms and dimensions, the U. N.

General Assembly on December 14,1990 adopted a Model Treaty on Extradition

with a view to providing assistance to State interested in negotiation and concluding

bilateral extradition agreements. This is the most recent and important Model Treaty

on Extradition which would help States from some general rules on this subject.27

Although, a general multilateral Convention solely devoted to extradition has failed,

a number of other multilateral Conventions have been concluded, dealing with

serious crimes such as international terrorism, which have specific provisions

relating to extradition.28

With more bilateral treaties on extradition and multilateral

Conventions containing extradition clauses concluded between or among States, and

25 Zhenhua, Supra note 2, 156. 26 Ibidem, 161. 27 (1990) Indian Journal of International Law, 30, 184. 28 Zhenhua, Supra note 2, 156.


the incorporation or transformation of the rules provided by these treaties into the

domestic laws, some customary rules of international law have been revealed, which

in turn regulate the implementation of the international commitment of States on

extradition. In this regard, it is said that the law of extradition is a part of

international law because extradition is a topic which does not come exclusively

under the domain of municipal law but proceedings relating to extradition are

governed by the domestic law.

4. BASIS OF EXTRADITION

Extradition is the surrender of fugitives to a State by another State, but question

arises that this act or the surrender of fugitives is a legal duty or only a moral duty. In

other words what is the legal basis for extradite the fugitive from one nation to

another?

There are two views among the writers in this connection. First is that there exists no

duty to extradite under customary international law. In order to provide for reciprocal

rights to claim the extradition of fugitive from justice States have entered into a

multitude of bilateral treaties to secure such rights. It is well established under main

laws (mostly English and U.S.) not only that there is no duty to surrender in the

absence of a treaty with the requesting state, but also that the executive in both

countries has no authority to extradite in the absence of such a treaty.29

As the court

said in the leading case of Factor v. Laubenheimer, “International law recognizes no

right to extradition apart from treaty. While a Government may, if agreeable to its

constitution and laws, voluntary exercise the power to surrender a fugitive from

justice to the country from which he has filed and it has been said that it is under a

moral duty to do so …. The legal right to demand his extradition and the correlative

duty to surrender him to the demanding country exist only when created by treaty.”30

As early as in 1625, Grotius recognized the social necessity and hence the duty under

the natural law, that a State either punish such fugitive criminals itself or surrender

them to the State whose laws were immediately concerned in bringing the offender to

justice. This moral duty of extradition did not however, become a legal obligation

until States began to enter into special treaties providing for the surrender of

particular fugitives, apart from those treaty arrangements, States frequently

surrendered fugitives by voluntary act.31

Therefore according to the view of these

learned writers of international law, there is no legal duty on a State to surrender the

fugitives of another State; it is only a moral rule in customary International law.

After September 11th

terrorist attacks on the World Trade Centre, the president of

29 Malik, Supra note 18, 790. 30 Referred to in Greig, Supra note 19, 408. 31 Fenwick, Supra note 13, 330.


U.S. Mr. George W. Bush, also said that the country who harbors the perpetrators

has a moral duty to hand over them to the U.S. to stand trial there. Here the president

used ‘a moral duty’ instead of ‘a legal obligation’32

Second view is that the

extradition is based upon obligatory form of principle of ‘Aut dedere aut punire’.

(A) Aut dedere aut punire

There is an intrinsic connection between these two aspects “deliver or punish”- is all

too evident. This link was already recognized by Hugo Grotius, in the seventeenth

century. The raison d’être of the maxim is that an offender should not escape

punishment regardless of whether he is punished on the spot or extradited.33

Firstly

let us consider what the position of this concept in international law is. Writers have

been divided in their opinions over the question of the obligatory force of this

maxim. According to Pufendorf and others, punishment and extradition are regarded

as matters of imperfect obligation.34

The practice of States supports the Pufendorf

theory in as much as there exists no absolute international duty to extradite in the

absence of treaties.35

The practice of States also supports the theory that there exists

no duty to punish when extradition is legally refused, as illustrated in R.V. Wilson.36

Mr. Wilson, an English national, was requested by the Swiss authorities for the

purpose of extradition, for trial and punishment, for a crime committed in

Switzerland. The Queen’s Bench Division dealing with the matter, examined the

Extradition treaty between Switzerland and the U.K. of 1874, and found in Art. 3 the

provision that, “no Swiss shall be delivered up by Switzerland to the U.K. and no

subject of the U.K. shall be delivered up by the Government there of Switzerland,

Mr. Wilson was thus non-extraditable. Could he have been punished in England? As

the U.K. adhered to the concept of territorial Jurisdiction over crime, no English

Court had jurisdiction to try Mr. Wilson for an offence committed abroad and he thus

escaped punishment altogether.

Cockburn, L.J. in his judgment on the case expressed following sentiment; “I am not

sorry that this argument has taken place, for I am chairman of the commission on the

subject extradition and I will take that, if possible, this blot upon the law shall be

removed, so as to prevent an Englishman who commits an offence in a foreign

country from escaping with impunity”.37

This gap in English Law was filled by the

new treaty between Great Britain and Switzerland concluded on November 26, 1880.

32 Zhenhua, Supra note 2, 156. 33 Shachar–Landau, C., (1980) Extra – territorial penal jurisdiction and extradition,

International and Comparative Law Quarterly, 29, 275. 34 Ibidem. 35 id. 36 Id. 37 Id.


The British Government agreed to a provision, where by British Nationals would be

surrendered to Switzerland in spite of lack of reciprocity on the part of the

Switzerland. The latter undertook however to prosecute Swiss offences in

Switzerland according to the laws of their cannot of origin for offences committed in

British territory, where extradition to Britain had been refused. This treaty is much in

the spirit of Aut dedere aut punire. However, the necessity to conclude such an

agreement supports Pufendorf’s theory that the maxim was not at that period a

customary rule of International Law. Has it become a rule of international law in the

last 100 years? In order to quality as a customary rule of international law binding on

the international community and to satisfy the requirements of Art 38, para 1 (b) of

the Statue of the International Court of Justice dealing with source of International

law, binding upon the Court, two elements should be united within the rule :

1. A material element manifested by a general practice,

2. A psychological element evidenced by a conviction that the practice is ‘accepted

as law” (this is expressed in the maxim opinio juris sive necessitatis).38

(B). General Practice

The material element based on the existence of a respective practice is gaining in

volume and importance. Regional agreements in the Americas, in Europe– Art. 6 of

the European Convention on Extradition of 1957- and within the orbit of the Arab

League have adopted the principle of punishment as an alternative to extradition.39

There are also example of multilateral conventions of a universal nature of that have

adopted the principle of Aut dedere aut punire, namely the Convention on the

Prevention and Punishment of the Crime of the Genocide of 1948, the four Geneva

Conventions on humanitarian law of the 1949, the Tokyo Convention of 1963, as

well as the Hague and Montreal Conventions of 1970 and 1971, respectively

regarding the Suppression of Offence Relating to Aircraft. The single Convention on

Narcotic Drugs of 1961, the Convention on Psychotropic Substances of 1971 and the

Protocol of 1972, have followed in this line of development.40

In spite of this growing practice, there does not seem to be a custom sufficiently

general. For, some of the multilateral conventions are not ratified by all the

signatories and in some the provisions are merely permissive and not obligatory. It is

38 The North Sea Contenental Cases (Germany v. Denmark and Germany v. The

Netherlands), (1969) ICJ Reports, 44. 39 Shachar-Landau, Supra note 33, 275. 40 Ibidem, 278.


difficult therefore to conclude that this practice constitutes a customary rule of

international law.41

(C). Opinio Juris sive Necessitatis

The psychological element, the conviction that the practice is binding and that it has

acquired the authority of a rule of law is also missing in case of the principle ‘Aut

dedere aut punire’. We find pronouncements “de lege ferenda’ claiming the

desirability of a rule to that effect. The Harvard Research on Extradition of 1935 (see

optional reservation clause regarding the extradition of national’s Art. 7) advocated

this rule. The tenth International Congress of Penal Law held in Rome in 1969

confirmed the necessity for a binding rule of that nature. In its Resolution No.VII, it

stated that a state which does not extradite its nationals is bound to prosecute them

before its own courts, or if they are standing trial abroad, to execute the foreign penal

judgment in their respect. Furthermore, a state which is exempted from extraditing a

national on the grounds of lack of reciprocity should punish that national in its own

Courts. This resolution aims at closing to the territorial principle and the legal

systems adhering to the personnel jurisdiction.

These proposals, however, are evidence that present day practice is not yet

accompanied by the sentiment that ‘Aut dedere’ is a positive rule of International law

(in absence of treaties) and that there is merely a “moral duty” to extradite or to

punish.42

As we have seen, Convention International law adheres progressively to the

principle ‘Aut dedere aut punire’. The European Convention on Extradition of 1957

which enshrines this principle in article 6 has come up for interpretation before the

Courts of Israel in the recent Pesachovitz case.43

All five judges involved in the

various Courts through which the case passed were of the opinion that the

Convention imposed a legal duty to extradite or to punish. As punishment was

impossible under Israeli law, for that the same reason that punishment was

impossible under the English law in the Wilson case.44

The courts felt that, they were

bound to order the extradition of Mr. Pesachovitz. The facts of the Pesachovitz case

were that Mr. Pesachovitz, an Israeli national since 1948, had been requested for the

purpose of extradition by the Swiss authorities. The Cantonal Criminal Court of the

Thurgau issued an order for his arrest, accusing him of fraud and of obtaining credit

by false pretences to the tune of 10 million Swiss Francs from the Kreuzlingen

branch office of the Union Bank of Switzerland in the period between November

1968 and August 1969. The Tel Aviv District Court granted the request of the

41 Ibid. 42 Sachar-Landau, Supra note 33. 43 Ibidem, 279. 44 Ibid


Attorney General to extradite Mr. Pesachovitz. Mr. Pesachovitz appealed against the

decision on the ground that it did not satisfy the requirement of reciprocity enshrined

in Article 2, paragraph (1) of the extradition law 1954.

The Supreme Court examined the provision of the European Convention on

Extradition of 1957, binding both on Switzerland and on Israel, as well as, the Swiss

Extradition Law of 1892, and concluded that although the requirement of formal

reciprocity was indeed not satisfied substantial reciprocity was achieved, since the

Swiss punish their nationals for offences committed abroad when they do not

extradite. Thus, since World War II, many Conventions dealing with International

offences have made application of the principle Aut dedere aut punire mandatory.45

Emerich de Vattel (1714-1767) was also of the view that it is a legal duty of States,

based on natural law of surrender fugitive criminals.46

The Congress on Comparative

Law held at The Hague in 1932, said that states treat extradition as an obligation,

resulting from international solidarity in the fight against crime.47

However, the

principle has not been closely followed by sovereign states. International lawyers are

divided on the issues even now. While some international lawyers insists that it is a

legal duty of States to extradite criminals, some say that although States do recognize

extradition in the absence of a treaty international law imposes no obligation upon

States to extradite criminals. Others insist that extradition is a moral duty based on

the principle of solidarity and cooperation between nations. Still others expressed the

view that extradition a moral duty based solely on reciprocity. Nevertheless, it is

generally agreed that, “no legal duty is imposed by customary international law on

States to extradite fugitive offences of criminals.” and that, “there was at

international law neither a duty to surrender nor a duty not to surrender. In the

absence of a treaty or statues, the grant of extradition depended purely on reciprocity

or Courtesy.”48

Judicial decision is in support of this view. For example, in Factor v.

Labubenhemer Case, 49

the U.S. Supreme Court clearly stated that, “international law

recognizes no right to extradition apart from a treaty while a Government may,

agreeable to its constitution and law, voluntarily exercise the power to surrender a

fugitive to the country from which he had filed, and it has been said that it is under a

moral duty to do so…..”

Recognizing the importance of extradition by States, they have restored to bilateral

arrangements to deal with the situation. Through bilateral arrangements, they agreed

45 Lambert, J.J, (1990) Terrorism and hostages in international law, Cambridge,

Grotius Pub. Ltd., 189. 46 Zhenhua, Supra note 2, 156. 47 Hingorani, Supra note 24, 154. 48 Starke, Supra note 7, 353. 49 Referred to in Zhenhua, Supra note 2, 158.


under certain terms to surrender fugitive offenders to each other. Attempts have also

been made to conclude a multilateral convention to regulate extradition among

States. By concluding such treaties either bilateral or multilateral, state parties will

bind themselves under certain conditions, to surrender the accused or convicted to

the party which seeks him return. For each State party is obliged to do so, in so much

as legal duty is thus imposed upon it by treaty. In the absence of a treaty, States only

have a moral duty to do so or do it any on reciprocity or courtesy, depending on how

close the relationship between the requesting and requested country is.

5. Extradition and Asylum : Relation

Asylum is closely connected with extradition and both are interdependent, asylum

and extradition are mutually exclusive, “Asylum stops, where extradition begins”.50

Asylum is protection which a State grants in its territory or in some of her place

under control of certain of its organ to a person who comes to seek it. According to

Starke, asylum may be defined as a shelter, which is more than morally a temporary

a refuge and a degree of active protection on the part of the authorities in control of

the territory of asylum.51

Asylum may be territorial or ex- territorial. Territorial

asylum is granted by a state on its own territory and ex-territorial asylum is granted

by the law, etc. to refugees from the authorities of the territorial State. On the other

hand extradition is the surrender or delivery of the fugitive criminal to the state in

whose territory the alleged criminal happens to be. The institution of asylum confers

right upon the state to bring the person concerned within its jurisdiction.52

In case of

territorial asylum, the person is in the territory of the territorial State and hence under

its jurisdiction, by granting the asylum, it grants protection to the person concerned

in its territory. In case of diplomatic asylum the person is not under the jurisdiction of

the state granting asylum and by granting asylum protection is granted to the person

concerned and he is brought under the jurisdiction of the granting State. It therefore,

involves derogation from the sovereignty of the territorial state or through the

institution of asylum the person concerned is withdrawn from the jurisdiction of the

territorial State.53

In both types of asylum, however, the ultimate purpose is to accord

protection to the refugee or person concerned and to bring him under the jurisdiction

of the granting State.

50 Verma, S.K. (1988) An introduction to public international law, New Delhi, Prentice-

Hall of India Pvt. Ltd., 211. 51 Starke, Supra note 7. 52 Kapoor, S.K. (2000) International law, (13th ed.) Allahabad, Central Law Agency,

345. 53 Ibidem


The institution of extradition does just the reverse. In case of extradition the fugitive

criminal is in the territory and under the jurisdiction of the territorial State and either

under an extradition treaty (or arrangements) or otherwise, it surrenders or returns the

fugitive to the State where he is alleged to have committed the crime. The fugitive,

who is under the jurisdiction of the territorial State is transferred to the jurisdiction of

the State where he is alleged to have committed the crime.54

Thus, extradition and

asylum are mutually exclusive. Once the territorial state decides to extradite the

fugitive criminal, the question of asylum does not rise. That is to say asylum stops

where extradition begins. On the other hand once the state concerned decides to grant

asylum to a person the question of extradition at least for the time being does not

arise. But, after a State has granted asylum to a refugee or fugitive it may

subsequently decide to extradite him at the request of the State where he is alleged to

have committed the crime or of which State he is a national. To conclude in the

words of Starke, “The liberty of state to accord asylum to a person overlaps to a

certain extent with its liberty to refuse extradition or rendition at the request of some

other State, an overlapping best seen in the grant, commonly, of asylum to political

offenders, who correspondingly are not as a rule extraditable. Asylum stops, as it

were where extradition or redemption begins and this interdependence makes it

convenient to consider the two subjects together”.55

(A). Right of Asylum and Extradition Practice

The concept of asylum is the opposite of extradition. It is an established rule of

international law that a State has right to grant or refuse asylum to any foreigner on

the basis of its sovereignty over the territory.

The Draft Convention on Territorial Asylum adopted by the UNGA in 1974, has

recognized that the grant of asylum is a sovereign right of State. The United Nations

Declaration on Territorial Asylum of 1976, reaffirms that asylum granted by a State

shall be respected by all other States.56

Some extradition treaties recognize such right

of asylum by some States, e.g. Art. 6 of the Inter- American Convention on

Extradition provides, “no provision of this Convention may be interpreted as a

limitation on the right of asylum when its exercise is appropriate”. The Convention

on the Protection and Punishment of Crimes against Internationally Protected

Persons, including diplomatic agents, contains the similar provision.57

Asylum and extradition are inextricably interwoven through the doctrine of non-

extradition of political offences, now firmly established. Therefore, if the rules on

54 Ibid. 55 Starke, Supra note 7, 352. 56 GA /Res./2312 (XXII), 1976. 57 Zhenhua, Supra note 2, 156.


which constitutes a political offence one being circumscribed throughout the world,

then the right of asylum is also being restricted.58

However, the present trend is that

States are under the duty, not to grant asylum to those who have planned, facilitated

or committed terrorist acts, which has a significant influence on the right to asylum,

and obliquely on the extradition regime. The Security Council, acting under the

Chapter VII of the Charter of the United Nations, by its Resolution 1373 (2001), calls

on all states, to “take appropriate measures in conformity with the relevant provisions

of national and international law, including international standards of human rights,

before granting refugee status for the purpose of ensuring that the asylum seeker has

not planned, facilitated or participated in the commission of terrorist acts”.59

6. EXTRADITION AND EXPULSION: DISTINCTION

Extradition is different from expulsion. Every state possesses the absolute and

unfettered power to expel, deport and reconduct aliens. It is an incident of a State’s

territorial sovereignty but it must be affected in a reasonable manner and without

unnecessary injury to the alien affected. Art. 13 of the International Covenant on

Civil and Political Rights 1966, provides that an alien lawfully in the territory of a

state may be expelled only pursuant to a decision reached by law.60

Art 33 of the

Geneva Convention on the Status of Refugees 1951, also provides that an alien

should not be deported to a country or territory where his person or freedom would

be threatened on account of his race, religion, nationality or political views.61

The

topic of expulsion of aliens has been included in the current programme of work of

the international law commission.62

As might be expected, expulsion is also within

the discretion of the state, but tribunals and writers have at time asserted the

existence of limitations on this discretion.63

In particular, the power of expulsion

must be exercised in good faith and not for an ulterior motive. While the expelling

state has a margin of appreciation in applying the concept of ‘ordre public’, this

concept is to be measured against human rights standards. The latter are applicable

also to the manner of expulsion.64

In certain condition expulsion may constitute

genocide or may infringe the principle of non-discrimination (racial or religious)

which is part of customary international law expulsion which causes specific loss to

58 Duffy, P.G., (1983) English law and the european convention of human rights,

International and Comparative Law Quarterly,39, 648. 59 Security Council Resolution 1373 (2001), (2001) YUN, 60. 60 Verma, Supra note 50, 211. 61 Ibidem 62 2007, Report of intenational law commission, fifty ninth session, GAOR., Sixty-

Second Session, Suppl. No.10 (A/62/10), 132-53. 63 See generally Goodwin-Gill, International law and movement of persons.201-310. 64 The view is sometimes expressed that the expelling state must have compiled with its

own law. British Digest, vi.151-152.


the national state receiving groups without adequate notice would ground a claim for

indemnity as for incomplete privilege. Finally, and most important of all, the

expulsion of persons who by long residence have acquired prima facie the effective

nationality of the host state is not a matter of discretion, since the nationality places

the right to expel in question. In Ahmadou Sadio Diallo case Guinea alleged that

Diallo’s deportation was the final step in the implementation of a concerted DRC

policy to prevent him from recovering various debts owed to his companies by the

state.65

Extradition, on the other hand, deals with fugitive and those accused of

crimes. It takes place only under a treaty obligation and certain persons whose

extradition is demanded under the treaty are handed over to the requesting state for

prosecution and punishment. But despite a treaty, a State may still refuse to extradite.

Further, once the person is expelled, it is not the concern of the expelling state where

the alien goes, but in extradition, it is done in the interest of the requesting State and

the alien is handed over to it. The International Court of Justice (ICJ) recently issued

a long awaited judgment in a case brought by Belgium against Senegal regarding the

latter’s failure to prosecute former Chadian dictator Hissène Habré.66

Belgium based

its claim on Senegal’s treaty obligation to prosecute or extradite Mr. Habré on

allegations of torture and on an alleged customary duty to do the same for crimes

against humanity. While it now appears clear that torture is prohibited by a norm of

jus cogens, the Court did not explain the relationship between this fact and the

possibility of prosecution in Senegal. The Court also did not explain how (or if) the

torture convention itself was enough to criminalize torture at the international level

so as to avoid the prohibition on ex post facto criminal laws. In the last 10 years there

has been an increase in the practice of informal extradition. If this takes place with

the consent of the state from the territory of which the transfer of custody takes place,

there is no transgression of international law standards. Informal extradition, in the

absence of the application of the treaty regime, is not necessarily unlawful. Issue of

legality may arise in two types of case. In the first type, informal extradition takes

place in a situation in which there is knowledge of the likelihood of physical abuse or

torture of the suspect in the receiving state. In the second type of case there is no

extradition of any kind, but the suspect is seized by the agents of a state in the

absence of any legal process or the consent of the state from whose territory the

seizure is made. This practice, generally described as ‘extraordinary rendition’ is

clearly unlawful.67

Much of the material on extradition depends on questions of

international and particularly of constitutional law and the effect of treaties on

65 Diallo (Preliminary Objections), [2007] ICJ Reports 18, Retrieved from

<http://www.icj-cij.org> . 66 Judgment of 20 July 2012 67 Sands, Melanges, (2007) Salmon, 1074-94


municipal rules. Thus in the Pinochet case, the law lords were prepared to set aside

the immunity of a former head of state, but the requirements of English law and the

European convention reduced the available charges to a substantial degree.68

However, some courts, in giving extradition in the absence of a treaty, have

abstracted from existing treaties and municipal provision certain ‘general principal of

international law’

Extradition and Expulsion in India

In India, expulsion takes place under Foreigners Act, 1946 and extradition under the

Extradition Act,1962. Extradition is done by India only when conditions under the

aforesaid act are satisfied.

In the case of Hans Muller of Nuremberg v. Superintendent, Presidency Jail,

Calcutta and Others,69

the Supreme Court clarified the distinction between

‘expulsion’ and ‘extradition’. Facts in brief were that Hans Muller was a German

subject and was arrested and detained by the West Bengal government., under the

Preventive Detention Act, 1950, with a view to making arrangements for his

expulsion from India. The matter was referred to the West Bengal Government that a

warrant for arrest had been issued again the petitioner in West Germany in

connection with a number of frauds and that the government of West Germany

would apply for Muller’s extradition through diplomatic channels. Now we find here

two things.

First, the West German government sought Muller’s extradition. Second while, the

German subject Mr. Muller has been expelled from India under the Foreigners Act,

the question arises, whether he should have been extradited? Or whether he should be

expelled? Under which Act should be taken?

Under the Indian Constitution, extradition and expulsion are two separate things. List

I i.e. Union List, in the 7th

schedule of the Constitution the subject over which Union

Parliament alone can legislate. Entry 18 exhibits extradition.70

While Entry 19 of the

Union List deals with “admission in and expulsion from India, passports and visas”.

Thus we may conclude that extradition & expulsion is distinct subject as dealt in

Indian Constitution.71

In this connection dictum of Bose, J. is of great significance -

The Extradition Act is really a special branch of the law of criminal procedure. It

deals with criminals and those accused of certain crimes. The Foreigners Act is not

68 Regina v.Bow Street Metropoliton Stipendiary Magistrate,ex.p.Pinochet Ugrate

(No.3,)[2000]1 AC 147:ILR 119,135. 69 AIR 1955 (S.C.) 367. 70 Constitution of India, Entry 18, Union List, 8th Schedule. 71 Ibidem, Entry 19, Union List, 7th Schedule ,


directly concerned with criminals or crime though the fact that a foreigner has

committed offences, or is suspected of that, may be a good ground for regarding him

as undesirable. Therefore, under the Extradition act, a warrant or summons must be

issued, there must be a magisterial inquiry and when there is an arrest it is penal in

character.72

Thus this is the main important distinction – when the person to be

extradited leaves India he does not leave the country as a freeman. The police in

India hand him over to the police of the requisitioning State and he remains in

custody throughout.

In the case of expulsion, no idea of punishment is involved, at any rate in theory, and

if a man is prepared to leave voluntarily he can ordinarily go as and when he pleases.

So in short we conclude that extradition and expulsion differ from one to another-

1. While extradition is primarily performed in the interest of the requesting State,

expulsion is performed in the exclusive interest of the expelling State.

2. Extradition needs the consensual co-operation of at least two States, whereas

expulsion is a unilateral action apart from the duty of the receiving State to

accept its own national.

3. Extradition applies to criminal prosecutions and thus suppresses criminality;

expulsion order may be issued to any foreign national on a number of grounds.

4. While extradition of a person takes place only at the request of another State,

expulsion is an order of a State, which prohibits a person from remaining inside

the territory of the ordering State.

CONCLUSION

The international public order today, threatened as it is by terrorism, air piracy, drugs

and all sorts of conventional and non- conventional crime, depends more than ever

before upon intensive inter-state collaboration and mutual assistance, because the

proper law of crime still remains, in the domain of domestic laws. The recent

developments relating to extradition show that considerable efforts are being made

by States on unilateral, bilateral and multilateral bases, to adopt definite rules to

govern their actions in the matter. Nevertheless, the absence of a generally accepted

body of rules of customary international law or a general multilateral treaty of

universal character still gives rise to considerable uncertainties in the law and

practice of States on extradition. The existing international agreements and treatises

are useful in regulating relationships between the parties, but difficulties continue to

arise in cases, where no treaty exists between the requesting and requested states.

72 Ibidem.


The nature of extradition is not free from difficulties. Although, the concept of

extradition in international law has existed for centuries, its position in the

hierarchical scheme of international law has been at a low level. Many scholars of

international law did not consider extradition as a proper subject of international law

because for them it is akin to domestic level in nature and condition.

Therefore, the need for a comprehensive, universal treaty cannot be ignored or

minimized, which could be concluded under the auspices of the UN. Such a treaty

avoids duplication of efforts and multiplicity of treaties and confusion at the

implementation level. It is submitted that a massive academic effort is needed to

highlight the new challenges in this area.


(2012-13) 8 Universitas 75-92

CORPORATE SOCIAL RESPONSIBILITY IN INDIA

WITH SPECIAL REFERENCE TO THE COMPANIES

ACT 2013

Yashavant Singh Yadav

Abstract

Corporate social responsibility (CSR) is a growing trend in

all emerging economies including India. India had a great

religious and cultural tradition of charity in the past, which

has been inherited as a corporate philanthropy in the

modern time. Although the Indian corporate are greatly

influenced by the western industrialization, but CSR in

independent India is more influenced by the Gandhian

principle of trusteeship. The great political and corporate

leaders of the country have continuously argued in favor of

CSR. The liberalization and economic reforms in 1990s leads

the country from closed economy towards open economy.

This results in the rapid growth in the GDP of the country. At

the same time adoption of unfair and unethical business

practices declined the image of Indian corporate community

among the ordinary people. It forced enterprises, both

private and public to pay due attention over the satisfaction

of its stakeholders. Government also takes some measures

and issued CSR voluntary guidelines for the private sector.

With the passing of Companies Act 2013, India has become

the first country to have legislation for compulsory CSR

spending.

Keywords: Corporate Philanthropy, Enterprises, Business

Community.

Contents

Introduction

1. Rational Behind and Development of CSR in India

2. Concept and Definition of CSR

3. Examples of CSR in India

(A) Tata Group

YASHAVANT

SINGH YADAV ∼ Law School, Banaras

Hindu University,

Varanasi, India.

yashavantyadav@

gmail.com.

Yashavant Singh Yadav

received his B.Sc. degree

from VBS Purvanchal

University, India and LL.B.

from Banaras Hindu

University, India, and is

currently a final year

student of LL.M. course of

study at Banaras Hindu

University.


(B) APTECH

(C) Infosys

(D) Mahindra & Mahindra

4. CSR Under Companies Act, 2013

(A) Salient Feature of Sec 135

(B) Draft CSR Rules under Sec 135 of Companies Act, 2013

5. Challenges Before CSR in India

Suggestion and Conclusion

INTRODUCTION

CSR means the responsibility of corporate groups towards the society. This is a

growing trend in the developing economies like India where the government alone is

not capable to solve all the problems of society such as hunger, poverty, illiteracy

unemployment, etc. CSR is a doing business with a positive impact on the society. It

is also in the interest of corporate to fulfill its social responsibility. Although the

main object of companies is to earn more and more profit, but in this process they

cannot avoid their responsibility towards the stakeholders such as employees & their

families, customer and society at large.

1. RATIONAL BEHIND AND DEVELOPMENT OF CSR IN INDIA

Rational behind CSR can be understood from two points of views. First, from the

view point of society it is necessary that business community should come forward

for the upliftment of society. This is possible when business starts growing and

creates wealth. Because, when new enterprises are formed, new jobs are created,

new jobs are gained and income begins to rise. Further growth and productivity

follow, spurring more innovation more innovation and efficiency, and generating the

products and services that people want and need. Simultaneously people gain

opportunity, empowerment and dignity. Second, form the view point of business,

Business needs the consent and cooperation of society as well as government to

operate effectively and to make profits. In the long term there is no hope for business

without all-round and equitable development of the society. Corporation needs

societies and vice-versa. It is a social contract that is mutually beneficial.1

In a developing country like India, where the problems like hunger, poverty,

illiteracy, unemployment, inequality in the society is prevalent, there is a need of

altruistic and philanthropic approach from business community. Our great leaders

1 Sundar, Puspa (2013) Business & community: The story of corporate social

responsibility in india. 1-2. New Delhi: Sage Publication.


had consistently argued in favor of social responsibility of the business community

towards society. As the Prime Minister of India, Pt. Jawaharlal Nehru asked

businessmen to extend their cooperation to government for solving the basic

problems of the nation: “if we do not ultimately solve the basic problem of food,

clothing, housing and so on…. We shall be swept away and somebody will come

and try to solve them.” Prime Minister Lal Bahadur Shastri emphasized the need for

businessmen realizing their full range of responsibilities. He said: “In our humble

way, we are trying to build a welfare state on a socialistic pattern…. The criterion of

determining the line of advance must not be profit but social gain. The benefit of

development must accrue more and more to relatively less privileged class of society.

Too often the community views the businessman’s aims rather than advancement of

welfare. That impression can be removed only if business is fully alive to its social

responsibilities.” Prime Minister, Mrs. Indira Gandhi also advised industrialists to

invest in the welfare of masses to ensure long-run survival of business: “What does

this larger responsibility mean? To me, it means working for the objective of

achieving a ‘social basic minimum’ for every individual. Unless this is attained, there

can be no stability. And without stability, business itself cannot flourish. Investment

in the welfare of masses is a guarantee of long-run business survival itself.”2 Prime

Minister Atal Bihari Vajpayee in his address to the 73rd

Annual General Body

Meeting of the Federation of Indian Chamber of Commerce and Industry commented

in this vain: “I have often urged Indian business to discharge its social responsibility

in a more visible and effective manner than has been a case so far. It is an appeal that

I make again today. The challenges of India’s social sector development are

daunting. All of us know the resources of the Central and State Governments are

insufficient to meet these challenges. Indian business should set aside a significant

part of their earnings as their human resource to improve the conditions of education,

healthcare, sanitation and community welfare.” At the 100th

birth century celebration

of J R D Tata the Prime Minister Dr. Manmohan Singh spoke on to the issue of

partnership with corporates, of corporates walking hand-in-hand with government in

taking India on its path of modernization and industrialization. While recognizing the

role of government must play to create enabling condition for entrepreneurship, he

urged that: “In discovering opportunities to invest in socially useful projects, in

creating new avenues of progress for the under-privileged, in investing in the les

developed regions for the benefit of the marginalized section of our societies,

corporate social responsibility is not philanthropy. It is not charity. It is an

2 Gopal Krishna, G. (1992) Corporate social responsibility in india. 15-16. New Delhi:

Mittal Publications.


investment in our collective future. In this we are partners. We must walk together on

the road to well-being and prosperity.”3

Further, the prominent business leaders also argued for the social responsibility of

the business community as J R D Tata maintained: “In a poor country like ours,

however, in which so many people are economically deprived and oppressed, the

social obligation of organized business and industry as I conceive them must go

beyond the accepted duties of making good product, selling it at a fair price, paying

fair wages, providing good working conditions to labour and paying taxes in full. I

have therefore, long believed that those in Indian business and industry who have

adequate means and resources should consider it a part of their social obligation to

contribute in some suitable form to the progress and welfare to community in which

their enterprise is located.” Ramakrishna Bajaj in his Presidential address at the

XVIII All India Commerce Conference opined: “In the changed context, business has

a role that goes beyond its traditional accepted limits of activity. Today, the

businessman has to accept and fulfill not only economic but also civic

responsibilities. He lives in particular social environment and he has the requisite

talent, capacity and knowhow, he has to contribute his share to the betterment of

living condition of people living around him. In other words, community service

must now become integral part of business activity.”4

Apart from these views of corporate leaders who advocate industry to undertake

enlarge social responsibility to solve nation problem, the arguments advanced for

CSR from intellectual groups:

1. It is in the long run self-interest of the company to get directly involved in

business. Kenneth Arrow writes: “Social responsibility is in the firm’s long-run

best interests. The firm that ignores the interest of society in a pell-mell pursuit

of profit neglects the long-run consequences of such a strategy that could prove

too costly or even suicidal.”

2. Social action programs create a favorable public image, socially responsible

firms attract shareholders who cherish democratic values, build strong consumer

liability, provide scope for the utilization for the employees’ talents in the

reconstruction of the society and finally create a sense of pride for itself and for

the related groups.

3 Mitra, Meera (2007) It’s only business:India’s corporate social responsiveness in a

globalised world. 10-11. New Delhi: Oxford University Press. 4 Gopal Krishna, Supra note 2, 17-18.


3. Social action programs will help preserve industry as a viable institution in

society. Profits are important, of course, but profitability is not sole measure of

success of an enterprise. Growth, service, health and progressiveness all are part

of the criteria of success.

4. Social action programs will help avoid more government regulations. The

alternative of social responsibility is over-regulation of business. Inherent in the

social responsibility is… a clearer recognition of co-operation between business

and government not solely for the benefit of business, but as a means of solving

some of our basic and social and environmental problems and for the benefit of

society as a whole.

5. Social expectations are high and if ignored will result in the creation of public

hostility towards industry.

6. Industry has necessary resources and talent to engage in social action programs.

Business operates more efficiently than government and hence can solve

problems more cheaply. The business community is probably the most effective

force in the country and if it applies its talents, energies and resources

constructively many of the ills and inequalities of our society can be improved

and in fact cured.

7. Involvement in social action programs is a moral responsibility of industry.

“Economist now talk in terms of maximization of social returns which will

maximize gains to nation… it is not our intention that business and industry

should not make profit or prosper… what is required from the business world is

leadership which enlightened its own and the public interest.”5

8. In the era of liberalization globalization and privatization, where the individual

freedom is given more emphasis; less interference of state into the affairs of

companies; and adoption of unethical, illegal and corrupt practices are prevalent,

the reputation of business community have been affected adversely. In

consequence of this CSR has been used as damage control.

Further, in a society if more emphasis will be given to efficiency then the equity will

be bound to suffer. Principle of efficiency is totally based on the Darwinian theory of

‘survival of the fittest’, which means those who are more efficient they will go far

and others will travel behind. This has created an inbuilt inequality in the society. In

consequences of this a heavy gap has been created between few & many. This gap

can only be filled up when the few will show a sense of responsibility towards many.

5 Ibidem, 84-86.


Today, the corporate world is showing increasing interest in CSR for reasons

unconnected with old traditions of corporate giving. It is steadily being drawn into a

new relationship with government and voluntary organizations at local, national and

international levels. The chief reasons are the relative decline of the nation state, the

contracting role of the government, the expanding role of the business, the

emergence of an organized voluntary sector and a changing intellectual climate

within companies. This new way of relating to communities is termed CSR, and

increasingly just corporate responsibility to indicate a more responsible process of

creating economic value. It has acquired some more nuances beyond corporate

citizenship.6

The development of CSR in India has paralleled India's historical development. In

the pre-industrial period prior to the 1850s, CSR was heavily influenced by cultural

and religious tenets. As per the Vedic philosophy, the principal role of money was to

serve the needs of society, and the best use of money was donation for the welfare of

others. This thinking influenced merchants and business owners of that period who

committed themselves to charitable work such as building temples, schools, and

hospitals, and providing relief in times of famine and epidemic for their personal

satisfaction. Later, the British brought western industrialization to India, and under

its influence, a few families from traditional merchant communities such as the Tata,

Birla, Bajaj, Godrej, Shriram, Singhania, Modi, Mahindra, "who were strongly

devoted to philanthropically motivated CSR," pioneered indigenous industrialization.

These corporate philanthropists participated not only in the struggle for freedom, but

also in the nation-building process thereafter. However, their charity was not purely

altruistic: they had a commercial interest in supporting efforts to further the country's

industrial and social development. Business operations and CSR engagement in this

period were based primarily on corporate self- regulation, though the charitable and

philanthropic actions of corporations were mostly sporadic and were not followed

consistently as part of a well thought-out, long-term business strategy. Additionally,

these CSR practices focused on the external stakeholders only, such as communities

and general social welfare bodies. This narrow focus obviously could not deliver the

desired results, as the welfare of internal stakeholders, such as employees, were

completely ignored.7

Post-independence India followed the "mixed economy" model, which incorporated

aspects of capitalism and socialism, and under which both the public and private

sectors coexist successfully. The mixed economy model was expected to be the

6 Sundar, Supra note 1, 33-34. 7 Sharma, Seema G. (2009) Corporate social responsibility in india: An overview, The

International Lawyer, 43:4, 1518-1519.


solution to the economic and social challenges that the country faced immediately

following independence, when a majority of the population was living in abject

poverty. The government's efforts were directed toward providing socially just

economic growth, which led to the emergence of public sector undertakings (PSUs)

and extensive legislation on labor and environmental standards. Jawaharlal Nehru

propounded the "Statist" model of CSR in post-independent India, under which

sustainability practices and policies of state owned enterprises were featured

prominently. In this context, CSR was mainly characterized by legal regulation of

business activities and/or promotion of PSUs. Under this model, "elements of

corporate responsibility, especially those relating to community and worker

relationships, were enshrined in labor law and management principles."8

By the end of 1996, the country had made an almost complete turnaround from the

Nehruvian socialism to a western-style market economy, and private foreign

investment was once again being welcomed. Private industry was given a more

critical role in development, and encouraged to become a global player because the

reforms coincided with the beginning of globalization. Globalization and

liberalization of the Indian economy led to a huge churning in the business sector. It

forced rapid and path-breaking change on Indian business.9 The Indian economy

which was earlier considered as a closed economy, now it turned to open economy.

Due to these changes there was unprecedented growth in the GDP of the country.

The GDP, which was $433 billion in 1990, had gone up to $1538 billion in 2010.

According to a survey, the involvement of the corporate sector in CSR picked up

after 1991. 64% of the 82 companies it surveyed started their CSR activities during

1991-2005. About two-third of the private multinational agencies (70%) and private

national agencies (67%) initiated CSR during this period, and one-third of the PSUs

too started their CSR programmes during this period, showing the influence of the

improved environment.10

By even smaller companies had begun to realize the benefits of engaging with the

community. Moreover, there was move from curative nation, e.g., righting

undesirable impacts already made, to preventive as well as proactive action for

development (PIC Survey).11

A further improvement was visible by 2008. A Times Foundation (TF)-TNS Survey

showed that about 90% of the 82 organizations canvassed- all the 11 PSUs, four-fifth

of the private national agencies (85%) and 94% of the private multinationals- were

8 Ibidem.

9 Sunder, Supra note 1, 210.

10 Ibidem, 242-243. 11 Ibid., 243.


involved in CSR initiatives. For most of them, CSR was a way to improve the public

perception of the company, and to register their brand in people’s minds. A small

were into CSR because it is mandatory (for PSUs) and about two-fifths of them had

undertaken CSR because of tax exemption. Public goodwill and branding were high

on agenda of private multinational agencies, and improved perception about the

companies was the motivation for PSUs, as well as government directions to be more

socially responsible. Most lifted lofty goals for their CSR initiatives, ranging from

nation building and providing localized rural employment and livelihood

opportunities to empowerment through wealth creation, rising quality of life and

social well-being of communities, striving for harmony with nature and greener

world. While TF-TNS Survey was painting a rosy picture of the spread of CSR,

another survey carried out the same year was more realistic. A CSR information

website www.karmyog.com, which began tracking best practices in CSR in 2007

pointed out in its 2008 Report on the basis of an analysis of 1,000 companies from 35

industry sectors that CSR still hasn’t taken off in India, and that performance was

very variable across sectors. Nearly half of the top 1,000 Indian companies it

surveyed were doing nothing by way of CSR. While the banking sector was one of

the best performing sector with 57% of the 40 companies studied doing CSR, largely

due to the mandatory regulations on social sector expenditure for PSUs; the

construction sector had very low CSR activity, as 63% of the 57 companies studied

are doing no CSR work. By the time of Karmyog’s 2009 rating exercise ( reported in

2010), the situation had improved somewhat. While in 2008, 49% companies had no

CSR activity at all, the number was only 26%.12

To sum up, while there has been some progress in the number of companies adopting

CSR, the numbers are still too few and those who do it with the passion and

commitment are fewer still. However the various surveys reinforce each others’

finding that there is definitely a growing tendency among Indian companies to see

accountability too all stakeholders as an integral part of doing business. The surveys

also show Indian companies’ continued commitment to participating in poverty

reduction programmes in partnership with the government and NGOs. However, one

must understand that this reflects the situation in mostly large companies. And does

not apply to small medium enterprise sector; also that the extent of commitment,

especially to accountability, cannot always be taken at face value. Daily instances

come to light which contradict these good intentions.13

12 Id., 243-244. 13

Id., 244-245.


2. CONCEPT AND DEFINITION OF CSR

First of all, it is necessary to know, what is social responsibility? Then only we can

better understand what the concept of CSR is. Presently, the Concept of social

responsibility has become a complex one. It has positive side as well as negative

side. On the positive side, its focus is on solving community problems with a view to

living up to public expectations. On the negative side, it aims at avoiding public

criticism by resorting social balance through production of social benefits equivalent

to social costs. It is also interpreted as an attitude, as a constraint, as a goal, and as a

policy. It is also defined as a social reform and a social movement. It is considered a

relative term as no absolute interpretation of it at any point of time at any place is

possible. It is also seen as a natural obligation, a moral duty, a legal compulsion, a

civic responsibility or statesmanship.14

Nowadays the corporate are treating social

responsibility as a part of their business strategy. The companies have become more

sensitive towards their responsibility .their strategies are reflecting more towards

society human right, labour welfare, environmental management, community

involvement, business ethics, and sustainable development etc.

In India, the concept of charity was in existence since Vedic period. The Indian

business practices were highly influenced by the Indian religious philosophies. In

Hindu system, however, there was no clear line of demarcation between religion and

charity; charity is regarded as part of religion which decrees that according to the law

of karma, good or bad deed of a man produce corresponding results in the life to

come.15

In Islam there is concept of Zakat.16

Zakat can range from 2.5% to 10% of

one’s profit, depending upon the nature of the profit and the condition under which it

was acquired17

. The Britishars came to India, as traders, their sole motto was to earn

more and more profit than to do charity. Their charity to Indian was more with the

intention to popularize Christianity among the Indian than a sense of philanthropy.

After the independence of India, the concept of social responsibility was influenced

by the Mahatma Gandhi’s theory of trusteeship and Vinoba Bhave’s movement of

the gramdan (gift of village), the bhoodan (gift of land) the sampattidan (gift of

wealth).

There has been many occasion in the history of independent India when the

sentiment of community welfare has been voiced at very highest levels. The first

14

Gopal Krishna, Supra note 2, 57. 15 Sundar, Supra note 1, 39. 16

Zakat is defined as certain percentage of one’s acquired property or profit for the year

that is paid to the needy. 17

Sunder, Supra note 1, 40.


seminar on social responsibilities of business in India in 1966 with an august

audience consisting of the then Prime Minister Lal Bahadur Shastri, Jayaprakash

Narayan, C D Deshmukh, and many others actually made for a relook at the concept

of trusteeship. In these formulation there appears a corresponding drift from a

socialist ethos to a charity ethos to one that calls for opportunity solutions which are

neither philanthrophy nor charity.18

CSR is today broadly defined as the ethical behavior of a company towards society.

It means directly with local communities, identifying their basic needs and

integrating their needs with business goal and strategic intent. Due to complex nature

of society and societal problem, there are different perceptions about CSR. The

government perceives CSR as the business contribution to the nation’s sustainable

goals. It is also about how business takes into account the economic, social and

environmental impact of the way it operates.19

According to Ramon Mullert, a

foremost exponent of CSR and former president of the Council of the Bars and Law

societies of the Europian Union, ‘CSR can be defined as a concept whereby

companies voluntary decide to respect and protect the interest of a broad range of

stakeholder and to contribute to a cleaner environment and a better society through

active interaction with all. CSR is the voluntary commitment by business to manage

its role in society in a responsible way. CSR is the commitment of business to

contribute to sustainable development working with employees, their families, the

local communities in societies at large to improve their quality of life. CSR is

cooperation between government, civil society and business’. CSR has numerous

facets. Corporations are besieged by many issues in the name of CSR: stakeholder

demands, environmental issues, issues of sustainability diversity, labour conditions,

ethical investment, philanthropy and others.20

Various institutions have defined CSR

in their own way.

According to World Business Council for Sustainable Development “Corporate

Social Responsibility is the continuing commitment by business to behave ethically

and contribute to economic development while improving the quality of life of the

workforce and their families as well as of the local community and society at large”.

According to the World Bank, “Corporate social responsibility is the commitment of

business to contribute to sustainable economic development by working with

18

Mitra, Supra note. 3, 11. 19 Sundar, Supra note.1., 33-34. 20 Shestack Jerome J. (2005) Corporate social responsibility in a changing corporate

world, Mullert Raman (ed.), Corporate social responsibility: The corporate

governance of 21st century, 97-98.


employees, their families, the local community and society at large to improve their

lives in ways that are good for business and for development”. The European Union

defines “Corporate Social Responsibility is a concept that an Enterprise is

accountable for its impact on all relevant Stakeholders. It is a continuing

commitment by Business to behave fairly and responsibly and contribute to

Economic Development while improving the Quality of life of the workforce and

their families as well as of the local community and society at large.” If we go

through the overall assessment of all these definitions, it shows that there is different

perception about the term by different institution. But, at the same time all the

definitions primarily focused on one goal i.e. welfare of society.

3. EXAMPLES OF CSR IN INDIA

(A) Tata Group

Tata Group in India has a range of CSR projects, most of which are community

improvement programs. For example, it is a leading provider of maternal and child

health services, family planning, and has provided 98% immunization in

Jamshedpur. The company also endorses sports as a way of life. It has established a

football academy, archery academy, and promotes sports among employees. It offers

healthcare services all over the country with programs like rural health development.

Tata Group also has an organized relief program in case of natural disasters,

including long-term treatment and rebuilding efforts. It did laudable work during the

Gujarat earthquakes and Orissa floods. It also supports education, with over 500

schools, and also is a benefactor of the arts and culture. It has done abundant work in

improving the environment and local populations around its industries.

(B) APTECH

APTECH a leading education player with a global presence that has played a broad

and continued role in encouraging and nurturing education throughout the country

since its inception. As a global player with complete solutions-providing capabilities,

APTECH has a long history of participating in community activities. It has, in

association with leading NGOs, provided computers at schools, education to the

deprived, and training and awareness-camps.

(C) Infosys

Infosys is aggressively involved in a variety of community growth programs. In

1996, the company created the Infosys Foundation as a not-for-profit trust to which it

contributes up to 1% of profits after tax every year. Moreover, the Education and

Research Department at Infosys also works with employee volunteers on community


development projects. The management team at Infosys continues to set examples in

the area of corporate citizenship and has involved itself vigorously in key national

bodies. They have taken initiatives to work in the areas of research and education,

community service, rural outreach programs, employment, healthcare for the poor,

education, arts and culture, and welfare activities undertaken by the Infosys

Foundation.

(D) Mahindra & Mahindra

At Mahindra & Mahindra, The K C Mahindra Education Trust was established in

1953 with the purpose of promoting education. Its vision is to renovate the lives of

people in India through education and financial assistance across age groups and

across income strata. The K C Mahindra Education Trust undertakes a number of

education plans, which make a difference to the lives of worthy students. The Trust

has provided more than Rs. 7.5 crore in the form of grants, scholarships and loans. It

promotes education mostly by the way of scholarships. The Nanhi Kali (children)

project has over 3,300 children under it and the company aims to increase the

number to 10,000 in the next two years by reaching out to the underprivileged

children, especially in rural areas.21

4. CSR UNDER COMPANIES ACT, 2013

With the liberalization and economic reform in 1990s there has been a rapid change in

the socio-economic condition of India. The rich became richer and the poor became

poorer. It made necessary for the government to take certain step to make business

community more responsible towards the society. Initially there were voluntary

guidelines for the private sector to formulate CSR policies, create a separate fund for

the CSR activities. Later on government introduced the Companies Bill 2008, which

could not be passed due to dissolution of Lok Sabha. It was again introduced as

Companies Bill 2009. This Bill was referred to standing committee for its

recommendation and in view of suggested changes it was reintroduced as a fresh

Companies Bill 2011. Finally, it took the form of the Companies Bill 2012. After

incorporating the recommendation of Standing Committee, the Companies Bill 2012

was passed by the Lok Sabha on 18 December 2012 and by Rajya Sabha on 8 August

2013. It received the ascent of the President on 29 August 2013 and published in the

Gazette of India as the Companies Act, 2013. With the passing of this Act, India has

become the first country to have legislation for compulsory CSR spending. Under the

Act companies with net worth above Rs. 500 crore, or an annual turnover of over Rs.

21 Retrieved from http://www.india-briefing.com/news/corporate-social-responsibility-

india-5511.html/


1,000 crore, or annual net profit of Rs 5 crore shall earmark 2% of average net profits

of three years towards CSR.

Sect 135 of the Companies Act provides that every company having net worth of

rupees five hundred crore or more, or turnover of rupees one thousand crore or more

or a net profit of rupees five crore or more during any financial year shall constitute a

Corporate Social Responsibility Committee (CSRC) of the Board consisting of three

or more directors, out of which at least one director shall be an independent director.

The CSR committee so constituted shall,-

1. formulate and recommend to the Board, a CSR Policy which shall indicate the

activities to be undertaken by the company as specified in Schedule VII;

2. recommend the amount of expenditure to be incurred on such activities; and

3. monitor the CSR Policy of the company from time to time.

The Board of every company as constituted under sub-section 1 of Sect 135 shall,-

1. After taking into account the recommendations made by the CSRC, approve the

CSR Policy for the company and disclose contents of such Policy in its report

and also place it on the company's website, if any, in such manner as may be

prescribed,

2. ensure that the activities as are included in CSR policy of the company are

undertaken by the company.

3. ensure that the company spends, in every financial year, at least two per cent. of

the average net profits of the company made during the three immediately

preceding financial years, in pursuance of its CSR Policy:

4. specify the reason in its report made under clause (o) of sub-section (3) of Sec

134 for not spending the amount.

Schedule VII of the Companies Act, 2013 provides the companies CSR policies may

include the activities relating to:

1. eradicating extreme hunger and poverty;

2. promotion of education;

3. promoting gender equality and empowering women;

4. reducing child mortality and improving maternal health;

5. combating human immunodeficiency virus, acquired immune deficiency

syndrome, malaria and other diseases;


6. ensuring environmental sustainability;

7. employment enhancing vocational skills;

8. social business projects;

9. contribution to the Prime Minister's National Relief Fund or any other fund set

up by the Central Government or the State Governments for socio-economic

development and relief and funds for the welfare of the Scheduled Castes, the

Scheduled Tribes, other backward classes, minorities and women; and

10. such other matters as may be prescribed.

(A) Salient Features of Section 135

(i) Applicability

It applies on the companies falling under the three categories of financial limit i.e.

every company, having net worth of rupees five hundred crore or more; or turnover

of rupees one thousand crore or more; or a net profit of rupees five crore or more

during any financial year. In this way it has been ensured that if any company falls

under any of the three categories, it cannot be escaped from its CSR obligation.

(ii) Corporate Social Responsibility Committee

It has been made compulsory for the companies falls under the above to constitute

a Corporate Social Responsibility Committee(CSRC) of the Board consisting of

three or more directors, out of which at least one director must be an independent

director. The CSRC shall formulate the CSR policy of the company under the

preview of activities as specified under schedule VII and recommend it to the

Board. It shall also recommend the amount of expenditure to be incurred on such

activities and monitor the CSR Policy of the company from time to time.

(iii) Impartial Board

It has been made mandatory for the companies to have at least one independent

director in the board who constitute the CSRC. Under Companies Act ‘independent

director’ in relation to company, is a person: who is not managing director or a

whole-time director or a nominee director; who is a person of integrity and

possesses relevant expertise and experience; who is neither promoter nor related to

promoter of the company or its holding, subsidiary or associate company; who,

neither himself nor his relative have any pecuniary relationship with such company

or hold any key position in such company and who possess the further prescribed

qualification. In this way impartiality of the board is ensured.


(iv) Transparency

The transparency in the CSR policy has been ensured by two ways. First, the

Board’s report under sub-section 3 of Sect 134 shall disclose the composition of

CSRC. Second, the content of CSRC policy of the company shall be placed on

the company’s website in prescribed manner.

(v) Minimum Fixed Amount

It is compulsory for the companies qualified under sub-section(1) of section 135

to spend in every financial year, at least two per cent of the average net profits of

the company made during the three immediately preceding financial years, in

pursuance of its CSR policy.

(vi) Inclusive CSR Policy

Schedule VII of the Act provides number of activities under ten different clauses

which may be included in the CSR policies of the company. Further clause (x) of

schedule VII is residuary clause which makes the CSR policies more inclusive.

(vii) Preference to Local Areas

It has been made compulsory for the company to give preference to the local

area and areas around it where it operates, for spending the amount earmarked

for CSR activities.

(viii) Accountability

The Board has been made responsible to specify the reasons in its report made

under sub-section 3 of section 134, spending the amount if it fails spend such

amount which is earmarked for the CSR policies of the company.

(B) Draft CSR Rules under Sect 135 of Companies Act, 2013

CSR activities may generally be conducted as projects or programmes (either new or

ongoing) excluding activities undertaken in pursuance of the normal course of

business of a company. The CSR Committee constituted under Sec. 135(1), shall

prepare the CSR Policy of the company which shall include the following:

a. specify the projects and programmes that are to be undertaken.

b. prepare a list of CSR projects/programmes which a company plans to undertake

during the implementation year , specifying modalities of execution in the

areas/sectors chosen and implementation schedules for the same.

c. CSR projects/programmes of a company may also focus on integrating business

models with social and environmental priorities and processes in order to create

shared value.


d. CSR Policy of the company should provide that surplus arising out of the CSR

activity will not be part of business profits of a company.

e. CSR Policy would specify that the corpus would include the following : a, 2%

of the average net profits, b. any income arising there from c. surplus arising out

of CSR activities.

1. The CSR Committee, shall prepare a transparent monitoring mechanism for

ensuring implementation of the projects / programmes / activities proposed to

be undertaken by the company.

2. Where a company has set up an organization which is registered as a Trust or

Section 8 Company, or Society or Foundation or any other form of entity

operating within India to facilitate implementation of its CSR activities in

accordance with its stated CSR Policy, the following shall apply:

a. The contributing company would need to specify the projects/programmes

to be undertaken by such an organization, for utilizing funds provided by

it;

b. The contributing company shall establish a monitoring mechanism to

ensure that the allocation is spent for the intended purpose only;

3. A company may also conduct/implement its CSR programmes through Trusts,

Societies, or Section 8 companies operating in India, which are not set up by the

company itself.

4. Such spends may be included as part of its prescribed CSR spend only if such

organizations have an established track record of at least three years in carrying

on activities in related areas.

5. Companies may collaborate or pool resources with other companies to

undertake CSR activities and any expenditure incurred on such collaborative

efforts would qualify for computing the CSR spending.

6. Only such CSR activities will be taken into consideration as are undertaken

within India.

7. Only activities which are not exclusively for the benefit of employees of the

company or their family members shall be considered as CSR activity.

8. All companies falling under the provision of Section 135 (1) of the Act shall

report, in the prescribed format, the details of their CSR initiatives in the

Directors’ Report and in the company’s website.22

22 Retrieved from http://www.cuts-international.org/pdf/Draft-CSR_Rules_2013.pdf


5. CHALLENGES BEFORE CSR IN INDIA

Though the considerable progress has been made in acceptance of social

responsibility by Indian business, it still faces several challenges. The biggest

challenge before the corporate groups is how to be both competitive and socially

responsible. In an increasingly competitive and globally linked world, business must

now factor in not only the direct cost of community initiatives but also the indirect

cost of meeting higher standard of labour welfare, environment protection and product

quality. Another aspect of this challenge is to knowing how to make responsible

profits when times are good and, equally, how to downsize responsibly when times

are bad, given the volatile nature global economies today. Another major challenge

concerns relations with civil society. Civil society is becoming a dynamic force, in

India, as elsewhere in the world. But frequently there is mutual antagonism between

civil society and business due to different perceptions and attitudes, the end result of

which is conflict and stalling of industrial projects.23

Further, there is a need to

develop a comprehensive and clear guideline about the CSR policy by the central

government. Due to lack of comprehensive guideline by the central government the

state governments will adopt different guideline in their states. For instance, the

Chhattisgarh government has adopted a policy to set up a chief Minister Community

Development fund for the purpose of holistic development of affected district related

with industries, with the amount obtained under CSR policy. This type of policy may

cause inconvenience to the companies because the companies have their own CSR

policies in the interest of their business. Other challenges includes, the need of

Community Participation in CSR Activities, need of transparency in CSR activities,

need of infrastructure, and lack of consensus over the implementation of CSR

activities etc.

SUGGESTION AND CONCLUSION

CSR should not be a fad or a passing trend. For the better implementation of it

following suggestions are important: Firstly, CSR policies must be determined

organically, through demand-driven consensus. Instead of being the mandate of high-

level committees, company specific CSR policies should flow from a transparent

interface between community stakeholders and corporate. The process must be

devolved below the level of the corporation, to the level of the business unit.

Corporate leaders and civil servants in the national capital must not determine

community engagement strategies. Allocations must also be made on the basis of

how many different stakeholders can be absorb. Secondly, a demand-driven process

for articulating company specific CSR policies must be instituted at the district level.

23

Sunder, Supra note 1, 281-282 & 284.


Consultations can be steered by public officials such as district magistrates, involving

village and town leaders and representatives. Decisions could be made through

majority outcomes, and the process must be recorded and filed. This sort of a process

has the potential to create a public accountability framework for delivery of CSR far

superior to legal provisions that we fail to enforce. Thirdly, as this culture evolves

over time, CSR allocations must not remain consigned to bottom line (profits)

commitments. Obligations to community stakeholders must be placed alongside the

top line (receivables and debt) and must be considered seriously as the next step as

CSR must not be an afterthought to profit accumulation. It must be embedded within

the very fabric of large businesses.24

Other important suggestion includes;

• there is need to create awareness among the general public to make CSR activities

more effective.

• there must be some, voluntary guideline for the small and medium enterprises.

• there should be more focus on the rural areas.

• the continuous monitoring of the CSR policy must be ensured.

Overall, the story of Indian CSR is a story of light and shade, with some great

achievements but also several shortcomings. It is a story of some business leaders of

great vision and compassion who used their own and their companies’ wealth to

mould Indian society according to their vision of it25

. After passing of the Companies

Act, 2013, this story will lead further to achieve new heights. The Act have potential

to transform the landscape of CSR in India, provided it should be implemented in

letter and spirit of the Act.

24

Saran, Samir & Sharan, Vivan (2013, August 10) Less corporate, more social, The

Hindu, 9. 25

Sundar, Supra note 1, 312.


(2012-13) 8 Universitas 93-106

DECRIMINALISATION OF ATTEMPT TO SUICIDE:

RETROSPECT AND PROSPECT

Gopal Krishna Sharma

Abstract

Life is a stage with one entrance but many exits. It is a

priceless gift to human beings given by the nature. But in

certain circumstances man ends his own life by committing

suicide. ‘Attempt to commit suicide’ is an offence under

Sec.309 of the Indian Penal Code. In the case of P.

Rathinam, the Supreme Court of India decriminalised it in

1994 by saying that it is unconstitutional and inhuman but

this judgment was overruled in 1996 in Gian Kaur case by

the larger bench. Law Commission of India in its 42nd

Report and in 210th

Report recommended decriminalizing

the ‘attempt to commit suicide.’ Recently, Parliament

moving ahead put the ‘Mental Health Care Bill, 2013’

before the Rajya Sabha. Sec. 124 of the said Bill says that

any person who attempts to commit suicide shall be

presumed, unless proved otherwise, to be suffering from

mental illness at the time of attempting suicide and shall not

be liable to punishment under the said section. The

appropriate Government shall have a duty to provide care,

treatment and rehabilitation to a person, who attempted to

commit suicide, to reduce the risk of recurrence of attempt

to commit suicide.

Keywords: Attempt to Suicide, Mental Health Care Bill

2013, Law Commission Report. Contents

Introduction

1. Constitutionality of Attempt to Commit Suicide

2. Doctrine of Parens Patriea

3. Position in UK and US

4. Law Commissions of India

(A) 42nd

Report of Law Commission of India

(B) 210th


GOPAL KRISHNA

SHARMA

∼ Law School, Banaras

Hindu University,

Varanasi, India.

gopal.sharma.bhu@

gmail.com.

Gopal Krishna Sharma

received his BA from

Allahabad University, India &

LL.B. degree from Banaras

Hindu University, Varanasi,

India and is currently a final

year student of LL.M. course

of study at Banaras Hindu

University.


(C) 241st Report of Law Commission of India

5. The Mental Health Care Bill, 2013

Conclusion

INTRODUCTION

Life is a priceless gift to human beings given by the Nature. Everyone loves one’s

own life in a normal situation. They adopt all the measures to make life happier and

beautiful. Even a little wound, injury or even insertion of needle in any part of the

body makes men cry. Then a big question arises, why does a person ends his own

life. Whether that person is a normal human being? If he is not a normal person and

unfortunately, he could not succeed in his act of committing suicide, whether he

should be given punishment by the state? The answer is negative because the person

who takes such a dangerous step towards his own life is not a normal person. He

deserves sympathy, counseling and appropriate treatment and certainly not prison.

The word “suicide” has been originated from Sui (of oneself) and Caedes (murder).

This word was at the first time used by the English author, Sir Thomas Browne in

1642 in his treatise “Religio Medici”. The word “suicide” literally means, “To kill

oneself”1. In 1968, the World Health Organisation defined Suicidal act as “the injury

with varying degrees of lethal intent” and suicide is defined as “a suicidal act with

fatal outcome”. But as per definition it is difficult to determine whether a particular

death was a suicide since it requires the injuries leading to death to be self inflicted.

This may be obvious in most cases, but in many others it is impossible to ascertain.

Legally suicide is defined as “the intentional act of self destruction committed by

someone knowing what he is doing and knowing the probable consequences of his

action.” Suicidal acts with non fatal outcome are labeled by World Health

Organisation as “attempted suicide”. The “attempt to suicide” terminology is now

recommended to be used only to denote events in which there has been a failure of

conscious efforts to end life. These are the people who commit to end their life

through suicide but somehow survive.2 So far as the Meaning of suicide is concern

“suicide” does not, necessarily, involve the idea if felonious self-destruction. To

“commit suicide” is for a person voluntarily to do an act (or, as it submitted, to

refrain from taking bodily sustenance), for the purpose of destroying his own life,

being conscious of that probable consequences, and having at the time sufficient

1 (1993) Taber’s cyclopedic medical dictionary, (10th ed., p. 1905) New Delhi: Jaypee

Brothers. 2 Yadwad, B.S. & Gouda, Hareesh S., (2005) Is attempted suicide an offence Journal of

Indian Academy of Forensic Medicine, 27, 108.


mind to will the destruction of life.3 The Encyclopedia Americana defines suicide as

“the act of intentionally and voluntarily taking one’s own life”. Suicide falls into two

types: Conventional and Personal suicide. Conventional suicide was a part of the

traditional way of life in Japan, China, India where it was followed by a number of

widely scattered primitive tribes, for example Satee In India. Personal suicides are

more typical of modern times, when people depend less upon custom and convention

to solve their problem than upon individual decisions.

It seems probable that there is no one mental process by which the person arrives at

the act of suicide, but that suicide is a way to solve various types of personal

problems – loneliness, hate, desire for revenge, fear, physical pain, feelings of guilt

and the like.4 Black’s Law Dictionary

5 defines suicide as ‘the taking of one’s own

life’ or ‘the act of killing yourself deliberately.6 And ‘Attempted Suicide’ means ‘an

unsuccessful suicidal act’.7 "Suicide, the intentional taking of one's life, has probably

been a part of human behaviour since pre-history. Many ancient texts including the

Bible, the Quran and the Rig Veda, mention suicide. Because the act of self-

destruction represents an attack on some of our presumptions that life is to be lived

and death feared-responses to suicide have involved a variety of emotionally charged

attitudes. These have ranged from approval accorded to it by the ancient Greek Stoics

to, more typically, the fear and superstitution that led eighteenth century Europeans

to drive stakes through the hearts of those who had committed suicide."8

The Union government is on course to delete Sec. 309 (attempt to commit suicide)

from the Indian Penal Code as 25 states have given their consent to the Law

Commission's recommendation for removal of the criminal provision from the code.

The new Mental Health Care Bill, which seeks to decriminalise suicide and make

access to affordable mental health care a right for all, was introduced in Rajya Sabha.

For the first time in the history of Criminal law reform in the country, Mental Health

Care Bill, 2013 seeks to decriminalise acts of suicide by linking them to the state of

mental health of the person attempting the act. The Bill explicitly states that acts of

suicide will not be criminalised and those attempting suicide would be treated as

3 (2008) Stroud’s judicial dictionary of words and phrases, (Vol. 3, p. 2672), Thomson,

Sweet & Maxwell. 4 (1960) (Vol. XXV, p. 814), New York: Americana Corporation. 5 (2009) (9th ed., p. 1571), Thomson Reuters. 6 (2005) Oxford advanced learner’s dictionary of current english, London: Oxford

University Press, 1535. 7 Supra note 5. 8 (1983) Encyclopedia of crime and justice, 4, 520.


mentally ill unless proved otherwise and therefore exempted from the current

provisions of Sec. 309 of the IPC9.

1. CONSTITUTIONALITY OF ATTEMPT TO COMMIT SUICIDE

It may be found that Art. 21 of the Constitution of India reads that ‘No person shall

be deprived of his life or personal liberty except according to procedure

established by law10

’ and the concept of reasonableness must be projected in the

procedure contemplated by Art 21. As constitutionality of Sec. 309 has been

assailed as being violative of Art. 21 which protects life and personal liberty, it

would be in fitness of things to note what J S Mill11

had to say about making an act

relatable to personal liberty punishable. This is what Mill had said in this

connection in his famous tract "On Liberty" “The object of this Essay is to assert

one very simple principle, as entitled to govern absolutely the dealings of society

with the individual in the way of compulsion and control. Whether the means used

be physical force in the form of legal penalties or the moral coercion of public

opinion. That principle is, that the sole end for which mankind are warranted

individually or collectively, in interfering with the liberty of action of any of their

number, is self-protection. That the only purpose for which power can be rightfully

exercise over any member of a civilised community, against his will is to prevent

harm others. His own good, either physical or moral, is not a sufficient warrant. He

cannot rightfully be compelled to do or forbear because it will be better for him to

do so, because it will make him happier because in the opinions of others to do so

would be wise, or even right. These are good reasons for remonstrating with him

or reasoning with him, or persuading him, or entreating him, but not for

compelling him, or visiting him with any evil in case he do otherwise. To justify,

that the conduct from which is desired to deter him must be calculated to produce

evil to someone else. The only part of the conduct of any one, for which he is

amenable to society is that which concerns others. In the part which merely

concerns himself, his independence is, of right, absolute. Over himself, over his

own body and mind, the individual is sovereign”. The very definition of 'crime'

depends on the values of a given society. To establish this, what has been stated by

Krishana Iyer J. in his book on "Perspectives in Criminology, Law and Social

Change"12

(1980) may be noted: “What is a sex crime in India may be sweet-heart

virtue in Scandinavia. What is an offence against property in a capitalist society

may be a lawful way of life in a socialist society. What is permissible in an effluent

9 (2013, August 21) The Hindu. 10 Bakshi, P.M., (2008) The constitution of india, Delhi: Universal Law Publication Co.

Pvt. Ltd., 46. 11 Quoted In P. Rathinam vs. Union of India (1994) 3 SC 394, para 53. 12 Ibidem, para 54.


economy may be a pernicious vice in an indigent community. Thus, criminologists

must have their feet all the time on terra firma”.

A very fascinating development in the Indian constitutional jurisprudence is the

extended dimension given to Art. 21 by the Supreme Court in the Post-Maneka

era. Since then, Article21 has proved to be multi-dimensional13

. This aspect of Art.

21 has been brought up by many judicial pronouncements. This right is inalienable

and is inherent in us. It cannot be conferred upon us. This vital point seems to

elude all those who keep on clamoring for the "Right to die”. That means that

every individual has a fundamental freedom to choose not to live. On this issue the

stance taken by the judiciary is unquestionable. The main question arises is

whether right to life include right to death. First time it came up for consideration

before Bombay High Court in Maruti Sharipati Dubal v. State of Maharashtra14

in

which court struck down Sec. 309 of the IPC, as unconstitutional vide Art. 21 of

the Constitution which guarantees ‘right to life and personal liberty’. The Court

said that ‘right to life’ include ‘right to end one’s life’ if one so desires. It was

pointed out that right to life has both its positive as well as negative aspects. To put

it positively it would include a right to die, or to terminate one’s own life. The

blanket prohibition on right to die on pain of penalty, it was pointed out is not

reasonable. P.B. Sawant J. says “If the purpose of the prescribed punishment is to

prevent the prospective suicides by deterrence, it is difficult to understand how the

same can be achieved by punishing those who have made the attempts. Those who

make the suicide attempt on account of mental disorder requires psychiatric

treatment and not confinement in the prison cells where their condition is bound to

be worsen leading to further mental derangement”. Those on the other hand, who

makes a suicide attempt on account of actual physical ailments, incurable disease,

torture (broken down by illness), and deceit physical state induced by old age or

disablement, need nursing home and not prison to prevent them from making the

attempts again. No deterrence is going to hold back those who want to die for a

special or political cause or to leave the world either because of the loss of interest

in life or for self- deliverance. Thus in no case does the punishment serve the

purpose and in some cases it is bound to prove self defeating and

counterproductive15

.

Further in 1985, Delhi High Court in State v. Sanjay Kumar Bhatia16

while

acquitting a young boy who attempted to commit suicide by consuming ‘Tik

13 Retrieved from http://www.legalservicesindia.com/article/article/whether-right-to-life-

include-right-to-die-492-1.html 14 (1987) CriLJ 743. 15 Ibidem, para 20. 16 (1985) CriLJ 931.


Twenty’ strongly advocated for the deletion of Sec. 309, of the IPC from the

statute and held that the continuance of Sec. 309 of the IPC is an anachronism

unworthy of human society like ours. Instead of sending the young boy to a

psychiatric clinic society, authority gleefully sends him to mingle with criminals.

Medical clinics are needed for such social misfits; but police and prison never. The

Andhra Pradesh High Court also considered the Constitutional validity of Sec. 309

in Chenna Jagadeeswar v. State of Andhra Pradesh17

Amareshwari J., speaking

for the Division Bench, rejected the argument that Art. 21 includes the right to die.

The court also held that the courts have adequate power to ensure that

"unwarranted harsh treatment or prejudice is not meted out to those who need care

and attention"18

. The court also negatived the violation of Art. 14. Further, this

issue came before Supreme Court in P. Rathinam/ Nagbhusan patnaik vs. Union

of India19

in this case Supreme Court upheld the verdict given by Bombay High

Court in Maruti Sripati Duba and held that a person has ‘right to die’, therefore

Sec. 309 of the IPC is violative of Art. 21, hence it is unconstitutional. A person

cannot be forced to enjoy right to life to his detriment, disadvantage or disliking.

The 'right to live' in Art. 21 of the Constitution include the 'right not to live. Court

further said that Sec. 309 of the IPC deserves to be effaced from the statute book to

humanise our penal laws. It is cruel and irrational provision, and it may result in

punishing a person twice who has suffered agony and would be undergoing

ignominy because of his failure to commit suicide. Then an act of suicide cannot

be said to be against religion, morality or public policy, and an act of attempted

suicide has not baneful effect on society. Further, suicide or attempt to commit it

causes no harm to others, because of which state's interference with the personal

liberty of the concerned persons is not called for20

. Sec. 309 violates Art. 21, and

so, it is void. It may be said that the view taken by us would advance not only the

cause of humanisation, with is the need of the day, but of globalisation also, as by

effacing Sec. 309, we would be attuning this part of our criminal law to the global

wave length21

. The writ petitions stand allowed by declaring Sec. 309 of the IPC as

unconstitutional and hence void22

. The Hon’ble bench said that we should like to

observe that what we have sought to do through this judgment may be said to be an

attempt to "search for the social dynamics of criminal law, the functional theory of

sentencing and the therapeutic reach of punitive arts, to catch up with social

sciences relevant to criminal justice and to link up prison jurisprudence with

17 (1988) CriLJ 549. 18 Suicide: abetment and attempt, Retrieved from www.manupatra.com. 19 (1994) 3 SCC 394. 20 Ibidem, para 109. 21 Ibid., para 110. 22 Ibid., para 111.


constitutional roots". In this regard eminent lawyer Ram Jethmalani says “The

right to die is a part of a wider concept of liberty. The whole nation of the state

controlling your life and death is grotesque. Equally radical is Dr Appa Ghatate,

Supreme Court lawyer who agrees," The right to die should be included in the

Indian Constitution as a fundamental right. The very idea of the state controlling

your life is absurd."

The term 'life' (as appearing in the Vth and XIVth amendments to the United States

Constitution) means something more than 'mere animal existence'. This view was

accepted by a Constitution Bench of this Court in Kharak Sing vs. State of U.P23

.

The word 'life' in Art. 21 means right to live with human dignity and the same not

merely connote continued drudgery. It takes within its fold "some of the finer

graces of human civilization, which makes life worth living" and that the expanded

concept of life would mean the "tradition, culture and heritage" of the concerned

person24

. Life is not mere living but living in health. Health is not the absence of

illness but a glowing vitality-the feeling of wholeness with a capacity for

continuous intellectual and spiritual growth. Physical, social, spiritual and

psychological well beings are intrinsically inter woven into the fabric of life.

According to Indian philosophy the person who has born must die. Death is the

only certain thing in life.25

It has been opined by Ramaswamy, J.26

that physical

and mental health have to be treated as integral part of right to life, because

without good health the civil and political rights assured by our Constitution

cannot be enjoyed. Alan A. Stone, while serving as Professor of Law and

Psychiatry in Harvard University stated in his 1987 Jonas Robitscher Memorial

Lecture in Law and Psychiatry, under the caption; "The Right to Die: New

Problems for Law and Medicine and Psychiatry". One of the basic theories of the

lecture of Professor Stone was that right to die inevitably leads to the right to

commit suicide27

.

But in 1996, all the above argument given by Delhi, Bombay and Andhra Pradesh

High Court was overruled in Smt. Gian Kaur vs. State of Punjab28

wherein Verma

J. held that P. Rathinam's case was wrongly decided. The Court observed:"When a

man commits suicide he has to undertake certain positive overt acts and the genesis

23 1978 CriLJ 1741. 24 Vikram Dev Singh vs. State of Bihar, AIR 1988 SC 1782. 25 Indira, M. & Dhal, Alka, (1986) Meaning of life, suffering and death, A paper

presented in the International Conference on Health Policy, Ethics and Human Value held at New Delhi.

26 CESC Ltd. vs. Subhash Chandra (1992) ILLJ 475 SC. 27 Stone, Alan A., (1988), The right to die: New problems for law and medicine and

psychiatry, Emory Law Journal, 37, 627-643. 28 AIR 1996 SC 946.


of those acts cannot be traced to, or be included within the protection of the 'right

to life' under Art. 21. The significant aspect of 'sanctity of life' is also not to be

overlooked. Art. 21 is a provision guaranteeing protection of life and personal

liberty and by no stretch of imagination can 'extinction of life' be read to be

included in protection of life'. Whatever may be the philosophy of permitting a

person to extinguish his life by committing suicide, we find it difficult to construe

Art. 21 to include within it the 'right to die' as a part of the fundamental right

guaranteed therein. Right to life is a natural right embodied in Art. 21 but suicide

is an unnatural termination or extinction of life and, therefore, incompatible and

inconsistent with the concept of 'right to life'. With respect and in all humility, we

find no similarity in the nature of the other rights, such as the right to 'freedom of

speech' etc. to provide a comparable basis to hold that the 'right to life' also

includes the 'right to die'. With respect, the comparison is inapposite, for the reason

indicated in the context of Art. 21. The decisions relating to other fundamental

rights wherein the absence of compulsion to exercise a right was held to be

included within the exercise of that right, are not available to support the view

taken in P. Rathinam case under Art. 21. To give meaning and content to the word

'life' in Article 21, it has been construed as life with human dignity. Any aspect of

life which makes it dignified may be read into it but not that which extinguishes it

and is, therefore, inconsistent with the continued existence of life resulting in

effacing the right itself. The 'right to die', if any, is inherently inconsistent with the

'right to life' as is 'death with life"29

.

Verma J. further observed that the arguments "on the desirability of retaining such

a penal provision of punishing attempted suicide, including the recommendation

for its deletion by the Law Commission are not sufficient to indicate that the

provision is unconstitutional being violative of Art. 14. Even if those facts are to

weigh, the severity of the provision is mitigated by the wide discretion in the

mailer of sentencing since there is no requirement of awarding any minimum

sentence and the sentence of imprisonment is not even compulsory. There is also

no minimum fine prescribed as sentence, which alone may be the punishment

awarded on conviction under Sec. 309, IPC. This aspect is noticed in P. Rathinam

Case for holding that Art. 14 is not violated. The Supreme Court's decision in Smt.

Gian Kaur Case has thus categorically affirmed that right to life in Art. 21 does

not include the right to die. Consequently Sec. 309 which penalises attempt to

commit suicide is not unconstitutional30

.

29 Retrieved from www.manupatra.com 30 Ibidem.


Till date courts in India are following the Gian Kaur ruling, but still this a debatable

question before the legal scientist that whether ‘attempt to suicide’ under Sec. 309 of

the IPC should carry on or it should be removed from the penal provision. Time to

time Law Commission of India also recommended for the removal of Sec. 309 from

the IPC by saying that it is a unreasonable to inflict punishment upon a person who,

on account of family discord, destitution, loss of a dear relation or other cause of a

like nature, overcomes the interest of self-preservation and decides to take his own

life. Supreme Court of India recently allowed the Passive Euthanasia (assisted

suicide) in Aruna Ramchandra Shanbaug vs. Union of India and others31

. By

recommending to parliament, Hon’ble Supreme Court said that “although attempt to

commit suicide has been held to be constitutionally valid in Gian Kaur's Case, the

time has come when it should be deleted by Parliament as it has become

anachronistic. A person attempts suicide in a depression, and hence he needs help,

rather than punishment. We therefore recommend to Parliament to consider the

feasibility of deleting Sec. 309 from the IPC.”32

2. DOCTRINE OF PARENS PATRIAE

In the above case33

, the Supreme Court of India by explaining the doctrine of Parens

Patriae (father of the country) explained that this concept had originated in British

law as early as the 13th

century. It implies that the King is the father of the country

and is under obligation to look after the interest of those who are unable to look after

themselves. The idea behind Parens Patriae is that if a citizen is in need of someone

who can act as a parent who can make decisions and take some other action,

sometimes the State is best qualified to take on this role. Under Indian law this

doctrine was explained in Charan Lal Sahu vs. Union of India34

. it is stated that

Parens Patriae is the inherent power and authority of a legislature to provide

protection to the person and property of persons non sui juris, such as minor, insane,

and incompetent persons, but the words Parens Patriae meaning thereby 'the father

of the country', were applied originally to the King and are used to designate the

State referring to its sovereign power of guardianship over persons under disability.

Parens Patriae jurisdiction, it has been explained, is the right of the sovereign and

imposes a duty on the sovereign, in public interest, to protect persons under disability

who have no rightful protector. The connotation of the term Parens Patriae differs

from country to country, for instance, in England it is the King, in America it is the

people and so on. The government is within its duty to protect and to control persons

31 AIR 2011 SC 1290. 32 Ibidem, para 100. 33 Ibid., para 128. 34 (1990) 1 SCC 613.


under disability. In Heller v. DOE35

Kennedy J. speaking for the U.S. Supreme Court

observed: “the State has a legitimate interest under its Parens Patriae powers in

providing care to its citizens who are unable to care for themselves”. Here the point

of our purpose is that the person who commits suicide is not a normal person and if

fortunately he could be saved, it is the duty of state, being a Parens Patriae, to

provide sympathy and psychiatric treatment rather than send him to prison.

3. POSITION IN UK AND US

Suicide was a felony in common law punishable by forfeiture of goods and chattels

and called for ignominious burial of the body in the highway36

. However, it was not

until the suicide Act, 1961 was passed in England that suicide and attempted suicides

were no longer crimes.37

In Curzon vs. Missouri38

, the US Supreme Court has

observed that ‘the choice between life and death is a deeply personal decision of

obvious and overwhelming finally.’ After State of Washington vs. Harold

Gluckesberg39

, the law in the US has certainly moved toward non culpable of

‘Attempt to Commit Suicide’. In the United States by early 1970's comparatively

small number of States (9) listed suicide as a crime, although no penalties (such as

mutilation of bodies or forfeiture of estates) were exacted. In such States suicide

attempts were either felonies or misdemeanours and could result in jail sentences,

although such laws were selectively or indifferently enforced. Two of such States

repealed such laws, stating in effect that although suicide is "a grave social wrong",

there is no way to punish it. Eighteen states had no law against either suicide or

suicide attempts, but they specified that to aid, advice or encourage another person to

commit suicide is a felony. In more than twenty other states, there were not penal

statutes referring to suicide.40

American position has been mentioned as Suicide is

not a crime under the statutes of any state in the United States. Nor does any state, by

statute, make attempting suicide a crime. In twenty-two states and three United States

territories, however, assisting suicide is a crime. If an assistant participates

35 (509) US 312 36 Ashraf, Md. Ali, (2007 October-December) Culpability of attempt to commit suicide –

A legal labyrinth amidst ethical quandary, Journal of the Indian Law Institute, 49:4, 512.

37 (2001), IV Encyclopedia of criminology and deviant behavior, 511. 38 497 US 261, 281 (1990). 39 521 US 702 (1997). 40 Scheneidman, E. S., (1976) Suicidiology: Contemporary developments, Grune &

Stratton, 16-17.


affirmatively in the suicide, for instance by pulling the trigger or administering a fatal

dose of drugs, courts agree that the appropriate charge is murder.41

4. LAW COMMISSIONS OF INDIA

The Law Commission of India in its various reports has recommended to

decriminalise attempt to commit suicide by removing Sec. 309 0f the IPC. Few

recommendations are as follows:

(A) 42nd


The Law Commission had undertaken revision of the IPC as part of its function of

revising Central Acts of general application and importance. In its 42nd

Report

submitted in 1971, the Commission recommended, inter alia, repeal of Sec. 309. The

IPC (Amendment) Bill, 1978, as passed by the Rajya Sabha, accordingly provided

for omission of Sec. 309. Unfortunately, before it could be passed by the Lok Sabha,

the Lok Sabha was dissolved and the Bill lapsed42

.

(B) 210th


210th

Law Commission was constituted to study the topic “Humanization and

Decriminalization of Attempt to Suicide” chaired by A R Lakshamanan J.. The

Commission submitted its report on 17th

October 2008 to the then Union Minister for

Law and Justice, Ministry of Law and Justice, Government of India, Dr. H. R.

Bhardwaj. The Commission recommended various ground to decriminalise “attempt

to commit suicide” as follows:

(i) Suicide occurs in all ages. Life is a gift given by God and he alone can take it. Its

premature termination cannot be approved by any society. But when a troubled

individual tries to end his life, it would be cruel and irrational to visit him with

punishment on his failure to die. It is his deep unhappiness which causes him to

try to end his life. Attempt to suicide is more a manifestation of a diseased

condition of mind deserving of treatment and care rather than punishment. It

would not be just and fair to inflict additional legal punishment on a person who

has already suffered agony and ignominy in his failure to commit suicide.

41 Macey, Jonathan R., (1986, March), “Promoting public-regarding legislation through

statutory interpretation: An interest group model”, Columbia Law Review, 86: 2, 223-268, 348.

42 (1971, June) 42nd

Law commission report, 244.


(ii) The criminal law must not act with misplaced overzeal and it is only where it can

prove to be apt and effective machinery to cure the intended evil that it should

come into the picture.

(iii) Sec. 309 of the IPC provides double punishment for a person who has already

got fed up with his own life and desires to end it. Sec. 309 is also a stumbling

block in prevention of suicides and improving the access of medical care to those

who have attempted suicide. It is unreasonable to inflict punishment upon a

person who on account of family discord, destitution, loss of a dear relation or

other cause of a like nature overcomes the instinct of self-preservation and

decides to take his own life. In such a case, the unfortunate person deserves

sympathy, counseling and appropriate treatment, and certainly not the prison.

(iv) Sec. 309 needs to be effaced from the statute book because the provision is

inhuman, irrespective of whether it is constitutional or unconstitutional. The

repeal of the anachronistic law contained in Sec. 309 of the IPC would save

many lives and relieve the distressed of his suffering.

(v) The Commission was of the view that while assisting or encouraging another

person to (attempt to) commit suicide must not go unpunished, the offence of

attempt to commit suicide under Sec. 309 needs to be omitted from the IPC.43

(C) 241st Report of Law Commission of India

241st Law Commission was constituted to learn the position of Euthanasia (assisted

suicide) in India. This commission submitted its report under the chairmanship of P.

V. Reddi J. on 11 August 2012. After the Judgment of Supreme Court in Aruna

Ramachandra Shanbaug vs. Union of India44

law ministry constituted this

commission to give its consideration on the feasibility of making legislation on

Euthanasia. Supreme Court laid down the law on the Euthanasia in this case45

as

“passive euthanasia should be permitted in our country in certain situations, hence

following the technique used in Vishakha's case, we are laying down the law in this

connection which will continue to be the law until Parliament makes a law on the

subject”. After the study on the subject commission recommended that “Passive

euthanasia, which is allowed in many countries, shall have legal recognition in our

country too subject to certain safeguards, as suggested by the 17th Law Commission

43 (August, 2008) 210

th Law commission report, 38-39.

44 (2011) 4 SCC 454. 45 Ibidem.


of India and as held by the Supreme Court in Aruna Ramachandra’s case46

. It is not

objectionable from legal and constitutional point of view.” By this way the assisted

suicide is legalised in India.

5. THE MENTAL HEALTH CARE BILL, 2013

Till 1996 and before the Gian Kaur vs. State of Punjab47

attempt to suicide under

Sec. 309 of the IPC was declared as non penal but after this judgment it was

criminalised by the larger bench of the Supreme Court of India. But debate was

continued for the decriminalization of the Sec. 309. Even the 210th

Law Commission

also recommended the same. Keeping in the view above recommendations and

suggestions, Parliament put the Mental Health Care Bill, 2013 for decriminalse the

‘attempt to commit suicide’. For the first time in the history of criminal law reform

in the country, Mental Health Care Bill, 2013 seeks to decriminalise acts of suicide

by linking them to the state of mental health of the person attempting the act. The

Bill explicitly states that act of suicide will not be criminalised and those attempting

suicide would be treated as mentally ill unless proved otherwise and therefore

exempted from the current provisions of Sec. 309 of the IPC. Sec. 124 of the Bill

states as:

(1) Notwithstanding anything contained in Sec. 309 of the IPC, any person who

attempts to commit suicide shall be presumed, unless proved otherwise, to be

suffering from mental illness at the time of attempting suicide and shall not be

liable to punishment under the said section.

(2) The appropriate Government shall have a duty to provide care, treatment and

rehabilitation to a person, having mental illness and who attempted to commit

suicide, to reduce the risk of recurrence of attempt to commit suicide.48

The Bill thus clarifies that the act of suicide and the mental health of the person

committing the act are inseparably linked and have to be seen together and not in

isolation. Moved by the Ministry of Health, the Bill lays down a proper provision for

the treatment of persons attempting suicide. It seeks to provide for mental health care

for persons with mental illnesses and to protect, promote and fulfill the rights of such

persons during the delivery of mental health care and services. It is important to note

that the Mental Health Care Bill, 2013 completed the gap in mental health law in

India after it ratified the UN Convention on the Rights of Persons with Disabilities,

46

(2011) 4 SCC 454. 47 AIR 1996 SC 946. 48 Mental health care bill, 2013, 50.


which requires it to harmonise the laws with the ones present across the world. This

convention was signed on 1 October 2007 and came into force on 3 May 200849

.

If we observe the Bill carefully we find it contrary to McNaghten’s rule laid down by

House of Lards in 1843 which still has importance under Sec. 84 of the IPC. Lord

Tindal CJ says “every man is presumed to be sane and to possess a sufficient degree

of reason”50

. But Sec.124 of the Bill says ““Notwithstanding anything contained in

Sec. 309 of the IPC, any person who attempts suicide shall be presumed, unless

proved otherwise, to be suffering from mental illness at the time of the bid and shall

not be liable to punishment under the said section.” By this way McNaghten’s rule

says every man is presumed to be sane but Mental Health Care Bill has overriding

effect and says any person who attempts suicide shall be presumed, unless proved

otherwise, to be suffering from mental illness. So, after passing of the Bill in

Parliament, McNaghten’s rule would not be effective in India.

CONCLUSION

Due to development of science and technology people are becoming more

independent and they are the master of their own life. Individual himself is a person

who can decide about his life. Friedrich Nietzsche has also said that ‘suicide is man’s

right and privilege’. It has been argued by Law Commissions and various legal

personalities that person who commits suicide is not a normal person. Due to mental

illness, agony and ignominy he comes to the conclusion of ending his own life. Every

person loves his own life. Why a person will commit suicide in normal conditions? It

is surrounding situations which compel the person to commit suicide. If a man is

saved fortunately, in that situation he needs counseling, appropriate treatment and

sympathy rather than punishment. On the other hand, if a person decides to end his

own life, it means he decides to punish himself due to various reasons which

compelled him to come on such a dangerous decision. If he could not succeed in his

act and state punishes him, it is double punishment to that individual and it is

consider as against the justice and inhuman. So, it is a humble submission that Sec.

309 is inhuman and unconstitutional. It should be removed from the IPC as already

recommended by the 42nd

, 210th

, and 241st Law Commissions of India which has

been discussed earlier. It is one step ahead by Parliament to remove Sec. 309 of the

IPC by tabling the Mental Health Care Bill, 2013 in the Rajya Sabha. Sec. 124 of the

said Bill talks about the decriminalization of ‘attempt to commit suicide’.

49 (2013, August 21), The Hindu. 50 (1843)10 C & F 200.


(2012-13) 8 Universitas 107-120

UNDERSTANDING DOCTRINE OF TRADE MARK

DILUTION IN INDIAN PERSPECTIVE*

Apurva Verma

Abstract

The law relating to trade mark has moved beyond mere

identification and its protection only in that respect to the

conceptualisation of trade mark dilution as a new

development in the regime of intellectual property rights. Its

function has not remained symbolic, but has proved to be

creative in substance. The doctrine of trade mark dilution

has been recognised in various judicial pronouncements in

the United Kingdom and the United States, whenever there

has been an incident to blur or tarnish the distinctive

character of a well known trade mark. In the era of

globalisation, Indian society has also been affected and this

needs examination into the Indian Trade Mark Act, 1999 as

to whether it should incorporate the provision of trade mark

dilution on the experience of the American practice or the

new doctrine be not recognised in the light of the TRIPS

Agreement.

Keywords: Trade Mark Dilution, comparative law,

international framework

Contents

Introduction

1. Idea of Trade Mark Dilution

2. Trade Mark Dilution as Damage Factor

3. Socio-economic Perspective

4. Indian and International Practices

(A) Legal Provision

(B) Case Law

Concluding Observation

APURVA VERMA


Hindu University,

Varanasi, India;

apurvaverma09@

gmail.com.

Apurva Verma received her B.Sc & LL.B. degree from Banaras Hindu University, Varanasi, India and is currently a final year student in LL.M. course of study at Banaras Hindu University.

Acknowledgement :

Paper accepted for presentation in 2014 International Conference on Law and Political Science, being organized by iBAC, and National Law University, New Delhi.


INTRODUCTION

In comparison to other areas of intellectual property, trade mark and its legal

protection have always been less charted, the early development is especially

obscure. It appears that courts realised the need of protecting marks at the behest of

traders in the 16th century, but it was from the later part of the 20th century that trade

mark as an area of intellectual property gained attraction from the judiciary and

legislature. In the era of globalisation, the business trends are changing to a great

extent creating a greater need of trade mark protection, Ralph Brown Jr. has said:1

‘In an acquisitive society, the drive for monopoly advantage is a very powerful

pressure. Unchecked, it would no doubt patent the wheel, copyright the alphabet, and

register the sun and moon as exclusive trade marks.’

The concept of trade mark dilution clearly shows the radical effect of the trend of

trade mark expansion and expansion of its area of protection. Initially, the trade mark

was seen as only a source of identification and trade mark protection was meant

promoting trade mark in that respect only. The main aim of trade mark has always

remained the protection of consumers from getting confused with similar products.

Trade Mark acts against exception caused to consumers due to identical products

existing in the market. It also provides security to the traders who have earned a

reputation in market with hard-work and also facilitates traders to sell their products.

The social benefit in protecting trade mark comes from both securing the consumer

and the interest gained in the market. Limitations on trade mark protection due to

geographical area or product classification are an example of this.

The doctrine of trade mark dilution was proposed by Frank Schechter2 though it was

originated in England in the case of Eastman Photographic Materials Co. v. Jobs

Griffith Corporation3. But the launching of the doctrine of trade mark dilution

marked a fundamental change in the existing extent and scope of trade mark

protection. This is considered as a turning point in the history of trade mark law. The

traditional infringement law against the violation of trade mark was the product of

common law development and was motivated by an interest in protecting the

consumers. The prohibition against trade mark dilution is neither the product of

common law development nor it is motivated by an interest in protecting consumers.

With the expansion in area of market in the era of globalisation, there has been

demand for extending more and more protection to trade marks. Today the territorial

1 Brown, Jr., Ralph S. (1948). Advertising and the public interest: Legal protection of

trade symbols. Yale Law Journal, 57, 1165-1206. 2 Schechter, F (1927). Rational basis of trade mark protection, Harvard Law Review, 40,

813. 3 15 RPC 105 (1898).


boundaries appear meaningless due to technological advancement. In a case where

the traditional boundaries are losing their importance and existence, the traditional

doctrine of ‘territoriality’ of trade mark loses its significance in the technological

world. Free flow of information from one corner of world to another due to the

revolution in information technology, along with global marketing and advertising

are the reasons for raising the concern of international traders. For the international

traders, who wish to trade around the globe, the traditional territorial concept of

trademarks is a huge economic concern. A famous mark’s reputation not only

transcends territorial boundaries but also extends to unrelated fields activity far

beyond the scope of original goods and services in relation to which the mark is

used.4 The doctrine of trade mark dilution aimed to extend maximum possible

protection to this capacity of a famous mark. In effect, the theory of trade mark

dilution defends famous marks from competition in the global market in the best

possible way.

1. IDEA OF TRADE MARK DILUTION

The dilution theory discards the view that the sole function of trade mark is source

identification, as archaic.5 According to Schechter, the proper expansion of trade

mark law had been hampered by obsolete conceptions both as to the function of a

trade mark and as to the need for its protection.6 He has felt that the function of trade

mark of his day is not only symbolic but also creative in nature.7 Under the theory,

the preservation of the uniqueness and singularity of the trade mark is of paramount

importance to its owner.8 According to Schechter, trade mark is not merely the

owner’s commercial signature, but is ‘a silent salesman’ through which direct contact

between the owner of the mark and consumer is obtained and maintained.9 Thus, the

mark actually sells goods. There is possibility that the use of trademarks even on

entirely non-related goods may injure the trade mark owner, in such cases, absence

of actual confusion created by such misuse, resulting in either diversion of trade or

other concrete financial liability or injury of trade or repute, is quite irrelevant.10

However, Schechter intended to limit the much boarder degree of protection

4 Mostert, Fredrick W. (1997). Famous and well known marks ,4.

5 Schechter, Supra note 2, 822.

6 Ibidem, 824.

7 Idid., 816-817

8 Id.,822.

9 Schechter, F., (1936). Fog and fiction in trade mark protection. Columbia Law Review

36, 60-64. 10

Martino, Tony (1996).Trade mark dilution. 24.


extended to famous marks to ‘arbitrary, coined or fanciful marks’ excluding

‘commonplace marks’ from its purview.11

Trade Mark dilution generally occurs by way of blurring or by way of tarnishing.

Sometime ‘free riding’ is also added to the categories of injury caused by dilution.

But, ‘free riding’ has not been accepted as an injury in trade mark law as the

development’s gain need not always result in the plaintiff’s loss and the trade mark

law does not recognise the monopoly in the mark not even in cases of famous marks

under the guise of trade mark dilution. When third party user derives benefit from the

use of famous mark, it is not required that it always cause harm to the trade mark

holder, especially in a case where he is not a competitor to the trade mark owner. In

case of blurring or erosion, watering down of the particularity, distinctiveness,

effectiveness, uniqueness, exclusiveness and prestigious connotations of the trade

mark is generally apprehended. Tarnishment occurs when some third party uses the

marks involved are not competitors, the dilution theory envisages injury to trade

marks. What the proponents of the dilution theory argue is that it should be given

equal protection with the interest against confusion.12

2. TRADE MARK DILUTION AS DAMAGE FACTOR

Misrepresentation dilutes the claimant’s goodwill has been recognised by the courts

as a form of damage in trade mark law. This happens normally when defendant’s

misrepresentation results in making the claimant’s sign familiar or commonplace.

The claimant’s and its sign’s pulling power or goodwill dilutes due to defendants

misrepresentation. It is important to note that, this dilution theory applies where the

customer is not confused about the source or origin of the goods or where it is

unlikely that the damage to reputation will take place.

English law in the case of Taittinger v. Albev13

acknowledged dilution as a trade

mark damage. In this case, the claimant was a member of group of producers from

the champagne district who made a naturally sparkling wine, which had long been

known in the United Kingdom as ‘champagne’. The claimant’s champagne was

produced by a process of double fermentation from grapes grown in the Champagne

district in France. The claimant brought an action against the producer of non-

alcoholic sparkling beverages called Elderflower Champagne that was produced in

England. At first instance, it was held that the claimants had goodwill in champagne

and that the labeling of the defendant’s misrepresentations, the claimant had not

11

Schechter, Supra note 2. 12

Brown, Jr., Supra note 1, 1192. 13

(1993) FSR 641.


established that there was any real likelihood of serious damage if the defendant

continued to sell their product as elderflower champagne.

On appeal, the court of appeal overturned the first instance decision, finding that the

defendant was liable for passing off. While the Court of Appeal agreed with the

judge’s findings at first instance in relation to goodwill and misrepresentation, it

disagreed as to the question of damage. In particular, the Court of Appeal held that

the defendant’s use of ‘champagne’ had caused the requisite damage to sustain a

passing off action. Importantly, the Court of Appeal found that the relevant injury to

the champagne house’s goodwill occurred under the head of damage not considered

at first instance. The damage arose from the fact that there would have been blurring

or erosion of the uniqueness associated with the name ‘champagne’ which would

have debased the claimant’s reputation. The use of the name champagne for the

elderflower drink brought about ‘a gradual debasement, dilution or erosion of what is

distinctive’.14

The recognition of dilution as a form of damage by court was welcomed and

appreciated by commentators. The extension of trade mark law by way of

recognising dilution as damage was enthusiastically supported. In Harrods v.

Harrodian School,15

the court cleared the confusion by denying the status of dilution

as a head of damage in passing off. In this case, Millett LJ observed:16

[E]rosion of distinctiveness of a brand name has been recognised

as a form of damage to the goodwill of the business with which the

name is connected in a number of cases, particularly in Australia

and New Zealand….....unless the case is taken this could mark an

unacceptable extension of the tort of passing off.

Miller LJ also observed that he has problems with an action based on confusion that

recognised a distinct head of damage that didn’t depend on confusion. On the facts,

Millet LJ held that it was highly unlikely that, as a result of the defendant’s activities,

the Harrods name would lose its distinctiveness or became a generic term to refer to

shops that sold luxury goods. As such, passing off action failed.

As a result of the Harrods decision, the uncertainty regarding the extent to which

dilution will be recognised as a distinct head of damage exists. In Sir Robert

McAlpine Ltd. V. Alfred McAlpine plc.17

Mann J held that the defendant was guilty of

passing off when it decided to rebrand itself as McAlpine. While the two McAlpine

14

Ibidem, 13, 670,674,678. 15

(1996) RPC 697. 16

Ibidem 17

(2004) RPC (36) 711.


firms had been long established as ‘Robert McAlpine’ and ‘Alfred McAlpine’ and

shared goodwill in the ‘Mc Alpine’ name, the decision to use the surname by itself

would blur the distinctive character of Sir Robert McAlpine’s mark.

3. SOCIO-ECONOMIC PERSPECTIVE

However, the doctrine of dilution has failed to have wholehearted support at the

international level. In traditional trade mark system, the ability to identify the source

of the product bearing the mark, its quality and goodwill were certain factors on

which the value of trade mark was based. Persuasive advertising techniques

artificially creates and boost the charm behind the mark to such an extent that it

becomes the determinative of the value of the trade mark.18

Trends in modern

advertising, especially persuasive advertising, are the reason behind the rising

demand for wider protection to well known marks. The trends in the field demand a

shift in the function of advertisement from being informative19

to that of being

persuasive.20

With time the persuasive power of advertising has resulted in the mark

acquiring a commercial magnetism of its own.21

Ralph Brown feels that persuasive

advertising is simply a waste of resource and as it only persuades a purchaser to

choose a particular product from among the equally good similar products at a higher

price, the persuasive function of trade symbols is of ‘dubious social utility’.22

He,

therefore, wonders as to why the courts should recognise or protect interests deriving

from it.23

According to him, the clearest, most candid and must for reaching it claim

on behalf of persuasive values of trademarks finds reflection in the dilution theory.24

Another view is that the merchandising rights of trade mark owner is that such rights

separate trade mark from goods and from trade mark theory itself. According to

Mark A. Lemley, the point of trade mark law has never been to maximize profits of

trade mark owners at the expenses of competitors and consumers.25

And the

investment which the merchandising rights intended to protect is not investment

ensuring the quality of the underlying product, but in merchandising the brand itself

and this ought not be the goal of law.26

It is also true that the society today believe in

18

Schechter, Supra note 2, 930-831. 19

The formative function of trade mark is identification of source 20

On the other hand, the persuasive function aims at diverting demand toward a particular advertised article.

21 Schechter, Supra note 2, 1187.

22 Ibidem,1169.

23 Ibid., 1190.

24 Id., 1191.

25 Lemley, Mark A. (1999). The modern lanham act and the death of commonsense. Yale

LawJournal 108,1687- 1695. 26

Ibidem.


persuasive functions of trade symbols. Consumers least bothered about quality rather

they are more affected by trade symbols. However, the consumer bends towards the

persuasive function of the trade marks is not warranty in intellectual property

protection. It is also true that consumers are willing to pay a higher price just for the

uniqueness of the goods under particular brand article. To ensure that the consumer is

protected against confusion and deception requires conventional trade mark.

However, basic trade mark law does not support assigning brand rights to prevent

competitive or diluting use when no confusion seems likely.

The supporters of dilution theory argue that the one who used his intellectual,

physical or financial strength to develop a commercial product requires judicial relief

from a competitor who seeks to ‘reap where he has not sown’.27

David Vaver gives

an answer to this argument of the supporters of the dilution theory. According to him,

granting rights as intermediate as dilution rights to the owners of the famous mark

places another weapon of harassment in the hands of powerful against the weak.28

As

rightly said by Jessica Litman,29

[T]oagree to treat a class of stuff as intellectual property, we

normally require a showing that, if protection is not extended, bad

things will happen that will outweigh the resulting good things. But

it would be difficult to argue that the persuasive values

embodied in trade symbols are likely to suffer from under

protection. Indeed the Mattels, Disneys and Warner Brothers

of the world seem to protect their atmospheric just fine without

legal assistance.

However, Mark A. Lamely is of the opinion that the doctrine of dilution is not

entirely ill conceived.30

According to him, preventing dilution in appropriate cases

will lesson aggregate consumer confusion and thus encourage investment in the

quality of the underlying product. He is of the opinion that modern dilution cases

take a good idea and stretch it too far.

27

Callmann, Rudolf. (1942).He who reaps where he has not sown: Unjust enrichment in the law of unfair competition. Harvard Law Review 55, 595-612.

28 Vaver, David. (2005). Unconventional and well known trade marks. Singapore Journal

of Legal Studies, 1-19. Retrieved from http://papers.ssrn.com/so13/ papers.cfm?

abstract _id=952334. 29

Litman, Jessica. (1999). Breakfast with batman: The public interest in the advertising age. Yale Law Journal, 108,1717-1727.

30 Lemley, Supra note 27.


If this view is supported then the application of dilution theory will be limited to the

consumer confusion cases only and this is definitely not the original purpose of the

theory.

4. INDIAN AND INTERNATIONAL PRACTICES

The USA anti-dilution law has set such high standards regarding applicability of

dilution theory that neither the World Trade Organization’s Agreement on Trade

Related Aspects of Intellectual Property31

(TRIPS agreement) nor Indian law is at

such a level.

(A) Legal Provisions

The Lanham Act, 1946 provides that a mark to be a famous mark and to be covered

under dilution theory must be distinctive inherently or through acquired

distinctiveness in the United States. Section 43 (C) (2) (A) of the Lanham Act, 1946

states

[A] mark is famous if it is widely recognized by the general consuming public of the

United States as a designation of source of the goods or services of the mark’s

owner. In determining whether a mark possesses the requisite degree of

recognition,the court may consider all relevant factors, including the following:

i. The duration, extent and geographic reach of advertising and publicity of the

mark. Whether advertised or publicized by the owner or third parties.

ii. The amount, volume and geographic extent of sales of goods or services offered

under the mask.

iii. The extent of actual recognition of the mark.

iv. Whether the mark was registered under the Act of March 3, 1981 or the Act of

February 20, 1905, or on the principal register

Section 43 (c) (1) of the Lanham Act,1946 explained the cause of action as dilution

by blurring or dilution by tarnishment of the famous mark. Section 43 (C) (2) (B) &

(C) defines ‘dilution by blurring’ is association arising from the similarity between a

mark or trade name and a famous mark that that impairs the distinctiveness of the

famous mark. In determining whether mark or trade name is likely to cause dilution

by blurring, the court may consider all relevant factors, including the following:

i. The degree of similarity between mark or trade name and famous mark; and,

ii. The degree of inherent or acquired distinctiveness of the famous mark.

31

Arti 16, part II, Section 2, TRIPS Agreement, Retrieved from www.wto.org/english/docs_e/legal-e/27-trips.pdf


Indian law and international law do not mention ‘dilution’, and under Indian law and

the TRIPS agreement not at all require a mark to be famous. They also do not require

a reputation of the degree envisaged in the USA law. This is evident from the

analysis of the provisions of the Indian Trade Mark Act, 1999 and TRIPS agreement

laying down the requirements for acquiring well known mark status. All that both

require is knowledge/reputation among the relevant sector of the public. In

comparison to the USA law, this is a very limited group, as a result even non-famous

marks may become eligible for being protected from dilution if one accepts that

protection against dilution is incorporated under these legal instruments. This is

contrary to the theory of dilution.

The Indian context in this regard is more serious, as the requirement of knowledge

among relevant sector of the public is very generous under Indian law. In line with

WIPO/Paris Union Joint Recommendation,32

the Indian law provides that where a

trade mark has been determined to be well-known by any court or registrar, that mark

shall be considered as well-known, provided that a mark has became so to the

substantial segment of public which uses such goods or receives such services. This

‘the substantial segment of public’33

further diminishes the size of group, which

determines the mark is well known or not. It also weakens the protection required in

providing the type of uniqueness ensured by dilution doctrine. So, these provisions

cannot be considered to cover cases of dilution.

Another view is that the Trade Marks Act, 1999 provides protection only of well-

known marks or marks having trans-boarder reputation, though its scope is limited in

comparison to protection provided under the dilution theory.

Such an interpretation will not result into non-compliance of the Indian law with the

TRIPS Agreement. TRIPS Agreement simply incorporates Art. 6 bis of the Paris

convention. Art. 6 bis is limited to uses where the cause of dilution is confusion. It is

applicable to dissimilar goods and services only if the use of the trade mark to such

goods would indicate a connection between those goods or services and the owner of

the registered trade mark. It also requires that the interests of the owner of the

registered trade mark are likely to be damaged by such use. Such requirements make

32

WIPO Resolution on the protection of well known marks, adopted by the Assembly of the Paris Union for the

Protection of Industrial Property and the General Assembly of the WIPO at the 34th series of meetings of the

Assemblies of the member states of WIPO, 20-29 September 1999.Retrieved from http://www.wipo.int/edocs/mdocs/sct/en/sct_3/sct_3_8.pdf. 33

Trade Marks Act, 1999 : Sec. 2 (zg)


the cause of action different from dilution. Due to this the scope of protection under

TRIPS seems to be lesser than that under the doctrine of dilution.

Section 29 of the Trade Mark Act,1999 states that a registered trade mark having

reputation in India is infringed in the case of use of an identical or similar mark even

on dissimilar goods by a person who uses it in the course of trade, if such use is

without due cause and takes unfair advantage of or is detrimental to the distinctive

character or repute of the registered trade mark. Unlike other provisions relating to

infringement, Section 29 does not require confusion. Although the provision under

the Trade Act 1999 is not as strict as the provisions of the Federal Dilution Act of the

United States, it still provides the owner of reputed trade mark in India rights

similar to the protection against dilution of distinctive character of mark as provided

under the USA law. As we know, the USA mark requires the mark to be ‘famous’, it

is not required so under the Indian law. In order to claim protection under the Indian

law, the extent of reputation required is not clearly provided. Indian trade mark law

provides prevention against ‘unfair advantage’ of distinctive character or reputation

of a mark. Prevention of unfair advantage of the reputation of mark has never been

the purpose of trade mark law not even under the doctrine of dilution. As the main

aim of this provision is the protection is the protection of well known marks, as

required under international documents, some amendments are very much necessary.

A clear and deep analysis of present Trade Mark Act, 1999 and the practical aspect

of protection of Well Known Trade Marks in India can be summarized in following

concluding points :

1. The Definitions, the registration, the criteria etc, for Well Known Marks in

countries like Japan, USA, UK etc, is similar to that of India, The extent of

protection of Well Known varies from country to country according to their

respective domestic laws. A ambiguity usually created among the unregistered

Well Known Marks’ owners in respect to the infringements of marks and

remedies for the same. This ambiguity is created lack of effective protection

from Trade Mark Dilution under the domestic laws.

2. There is need to raise the level of protection provided to the Well Known

Trade Marks; as dilution diminishes the value of the Trade Mark and not

merely creates a confusion. It will be better if a separate registration and

register for Well Known Trade Marks will be maintained. While deciding

whether a mark is Well Known Trade Mark or not the points of consideration

should be similar to the requirement for the same under state laws. Awareness

among the consumers by online publication of the list of registered Well

Known Marks so that the confusion due to irrelevant association or products.


But the chances of dilution of the unregistered famous marks still exist and to

take a free ride on the long built goodwill of the famous marks.

3. Defensive marks are a way to protect Well Known Trade Marks which is

associated to the public with goods and services. A Well Known Trade Marks

which have not registered itself in the class of goods it’s not trading,

necessarily have a defensive marks registration. When a well known mark

brings a passing off suit in India and has been declared by the court as well

known Trade Mark is should be allowed to register itself in the class of goods

it is not trading with. This helps the owners of Well Known Trade Mark to

initiate infringement suits even in the those classes in which he is out trading

in and also against dilution of the marks.

4. Separate Anti Dilution law should be enacted removing all ambiguities in the

Trade Marks Act of 1999. This necessity has already been recognized in the

developed nations like USA, UK and Japan etc. USA as early as in the year

1997 passed the Federal Anti Dilution Act.

5. The raising conflict between the domain names and standard IP rights

questions the very policy. The increasing number of cyber squatting reflects

that the premium business are placing the domain name for facilitating e-

commerce. There is a constant threat to owners of the famous marks from

cyber squatters. This type of practice has been condemned by the WIPO

committee and required provisions have been added in the treaty. The problem

which prevails in the present Indian legal system regarding Trade Mark is that

it didn’t contain any provisions relating to the infringement of the famous

marks under the garb of domain names. It must be incorporated so that interest

of the owner and the consumers can be protected.

The concept of Trade Mark Dilution needs to be incorporated in Indian legal system

so as to create awareness among the trades and consumers and to reduce the number

of infringements and extending guarantee of quality goods to the consumers. No

doubt the new Trade Marks Act 1999 is a step forward in prevention of dilution but

still the contemporary Indian requires much more.

(B) Case Law

In a number of the USA cases, the defendant’s use of similar or identical marks of

the plaintiff raised the defence of parody: it shows the strength of such defence and

kinds of limitation imposed on dilution claims. It also shows the position of the

Indian Judiciary under the present legal system, in similar situations.


In Charles Smith v. Wal-Mart stores, Inc.,34

an avid and vocal critic of Wal-Mart

promotes the view that the corporation has a destructive effect on communities, treats

workers badly and has a damaging influence on the USA as a whole. Smith created

various designs and slogans that incorporated the word ‘Walocaust”, a word Smith

coined, by combining the first three letters of Wal-Mart’s name with the last six

letters of the word ‘holocaust’. He also arranged for some of his designs to be printed

on t-shirts and other items like mugs, underwear, teddy bears, bumper stickers and

bibs that could be purchased through www.cafepress.com.

Wal-Mart wrote to Smith and to the Cafe Press, asserting that smith’s Walocaust

Café Press webpage was violating Wal Mart’s trade mark rights, and demanding that

they cease selling all products imprinted with his various anti Wal Mart designs. Wal

Mart also objected to Smith’s registration and use of the domain name

www.walocaust.com, demanding Smith to stop using the domain name and to

transfer ownership of it to Wal Mart. In response, Café Press removed all of Smith’s

Wal Mart related merchandise form his online store. So that only non Wal Mart

related merchandise remained available at www.cafepress.com/walocaust and then

sought declaratory judgment of his right to sell his walocaust merchandise. Smith

also registered the domain name www.wal-qaeda.com and www.walqaeda.com.

Wal-mart contended that Smith was a merchant who misappropriated as trade marks

and business reputation in pursuit of illegal profit and Smith’s Walocaust and Wal-

Qaeda concepts, by associating Wal-Mart with the perpetrators of such atrocities as

the Halocaust and the attacks of September 11,2001, unquestionable tarnished the

Wal- Mart marks. Smith’s contention was that Wal Mart is attempting to misuse

trade mark laws to censor his criticism of the company. According to Smith, at stake

in this case is a right of the individual to publicly criticise the world’s largest retailer

or any other business.

The court refused to recognize dilution by tarnishment on the ground that

tarnishment caused merely by an editorial or artistic parody which satirizes the

complainant’s product or its image is not actionable under an anti dilution statute

because of the free speech protection of the first amendment.35

The court held that a

claim of dilution applies only to purely commercial speech. As Smith primarily

intended to express himself with his Walocaust and Wal-Qaeda concepts and since

commercial success was only a secondary motive of Smith’s parodic work, it should

be treated as noncommercial speech and, therefore, not subject to Wal-Mart’s trade

mark dilution claims, despite the fact that Smith sold the designs to the public on t-

34

Retrieved from http://www.citizen.org/documents/WalmartDecision.pdf 35

Court has relied on the decision in Mattel, Inc. v. Walking Mountain Prods., 353 F.3d 792,812 (9th cir. 2003)


shirts and other novelty merchandise. Such a decision, seems to be impossible under

the present Indian Trade Marks Act, 1999.

Similarly, in Louis Vuitton Malletier S.A. v. Houte Diggity Dog, LLC,36

Haute

Diggity Dog, LLC, a Nevada corporation that manufactures and sell pet products

nationally, and which, it claims, parody famous trade marks on luxury products,

including those of Louis Vuttion Malletier was held not to dilute the famous Louis

Vuttion marks for luxury luggage, handbags and accessories. Haute Diggity Dog

manufactures, among other things, plush toys on which dogs can chew and their

dog’s ‘Chewy Vuttion’ dog toys loosely resemble miniature handbags and

undisputedly evoke LVM handbags of similar shape, design, and colour. In lieu of

the Louis Vuttion mark, the dog toy uses ‘chewy vuitton’ in lieu of the LV mark, it

uses ‘CV’; and he other symbols and colours employed are imitations, but not exact

replication of those used in the LVM multicolour and cherry designs.

The court accepted the argument of the defendant that the mark adopted by the

defendant is only a parody, relying on the decision of court in People for the Ethical

Treatment of Animals (PETA) v. Doughney.37

Applying the PETA criteria to the facts

of this case, the court held that the ‘Chewy Vuitton’ dog toys are successful parodies

of LVM handbags and the LVM marks and trade dress used in connection with the

marketing and sale of those handbags.

CONCLUDING OBSERVATION

All these cases clearly reveal the scope of fair use protection under trade mark law,

its necessity and the extent to which it is recognised under the USA trade mark law.

The USA trade mark law and the kind of protection is extended to famous marks

under the doctrine of dilution, it is very much clear that Indian legal system have not

recognised the doctrine. There is no clear significant mention of the theory of

dilution under Indian law. And it is very much required, as doctrine of dilution

requires extension of powers to the strong marks which requires special mention in

the law. There is no international obligation on India to incorporate trade mark

dilution. So it is not necessary for the Indian legal system to give extended protection

to the so-called famous mark. However, Section 29 of the Trade Mark Act, 1999

needs amendment. Sub. section (4) of Section 29, deals with the use of a registered

trade mark by any other person, provided it has a reputation in India. Section. 29 (4)

extends even to dissimilar goods against infringement, its use made by other person

without due cause as an unfair advantage affecting its uniqueness. The scope is very

broad but still not insists on confusion. India is not under any obligation to recognise

36

507 F.3d 252 (4th Cir. 2007) 37

263 F.3d 359, 366 (4th Cir. 2001)


dilution theory, so this provision of the Trade Mark Act, 1999 can be interpreted to

protect well-known marks. There is no need of avoiding the ‘confusion’ requirement.

Section 29 attempts to equate unfair advantage with infringement of trade mark law,

and this is unnecessarily stretching trade mark law beyond its justifiable limits, so

that it should be removed from section. Another requirement is as Section 35 (8) (b)

& (c) block fair use and also fair using of comparative advertisement techniques,

prevents healthy competition also, so he has to be omitted from the section.

As the USA judiciary has also shown reluctance towards the strengthen the

protection against dilution and there is no international pressure on India to introduce

such a far reaching concept, India need not bring in provisions recognising it.


(2012-13) 8 Universitas 121-134

HEALTH INSURANCE: A MEANS TO ACHIEVE

RIGHT TO HEALTH IN INDIA

Roochi Singh

Abstract

The developmental gains from the economic growth have not

been evenly distributed. This problem is especially grave

with regards to the issues of health. The right to health as

fundamental right in India can address the lacuna by

strengthening health services and social determinates of

health. Health care has always been a problem because of

large population and large percentage of this population

living below poverty line in urban slums and in rural area,

below the poverty line. The government and people have

started exploring various health financing options to

manage problem arising out of increasing cost of care and

changing epidemiological pattern of diseases. Health

insurance is a very important sector which can reduce this

problem, but for this needs new laws and regulations and

their implementation.

Keywords: Right to health, Right to life, Dignity.

Content

Introduction

1. Right to Health under the Indian Constitution

2. International Instrument on Human Rights

(A) UDHR and ICESCR

(B) World Health Organization and Right to Health

3. Significance of Health Insurance in India

4. Health Insurance as Instrument to Achieve Right

to Health

5. Judicial Pronouncement

Conclusion

ROOCHI SINGH ~Law School, Banaras

Hindu University,

Varanasi, India;

ruchisingh2408@

gmail.com

Roochi Singh received her B.A. & LL.B. degrees from Dr. H.S. Gaur University, India and LL.M. & M. Phil. Degrees from Devi Ahilya University, India, and is currently a Ph.D. candidate in Law at Banaras Hindu University, where her research focuses on the legal aspect of health insurance in India.


INTRODUCTION

Health related issue is very important since ancient time. Now it became a very

important issue not only for India but also for the whole world. It is said that “health

is wealth”. The ability of a nation to convert knowledge into wealth is going to be

determined in future. Today’s knowledge based economy demands innovative and

fertile brain needless to say knowledge is a byproduct of healthy brain and the

healthy brain resides within a healthy body. So the health and health care major will

determine the future of a nation. The Indian constitution, under fundamental right

and directive principles of state policy, imposed duty on the state to achieve

minimum health standard. The Indian government adopted various policies to

improve the health care majors to attain standard health for its citizen, but

unfortunately all such policies lack behind to attain this goal. In this saving health

insurance has emerged as an instrument of health care and the government has

launched various polices and scheme to make the health insurance popular and

effective. Rastriya Swastha Bima Yojna is one of the popular schemes launched by

the government to provide protection to the BPL people.

Right to health is a best example of social security in our country. Many countries of

world accepted health insurance as a social security. Different country has different

approach in social health protection, but all have one thing is common system call a

risk pool. That is very important because health insurance used as a key to reduce

their risk in future. So it is clear that health insurance is a means to achieve right to

health in India.

1. RIGHT TO HEALTH UNDER INDIAN CONSTITUTION

The subject “health” has always remained as a matter of concern. Health sector is

playing very important role in development of any country, Indian constitution also

provides very essential and important provision related to health. Right to health is a

fundamental right in our constitution. Its existence in our constitution is not directly

but there is lots of provision is in our constitution. This related with the health

awareness. India, being a welfare state has taken upon itself the responsibilities of

extending various benefits of social security and social assistance to its citizens. The

‘right to health’ is inspirable from ‘right to life’, and the ‘right to medical facilities’

as a concomitant of ‘right to health’ is also part and parcel of ‘right to life’. In a

welfare state, the corresponding duty to the right to health and medical facility lies

with the state.

Some provision of Indian constitution is very important. Art 21 is one of them. In

India, the theory of the inter-relatedness between rights was famously articulated in


the Maneka Gandhi1 decision. This became the basis for the subsequent expansion of

the understanding of the ‘protection of life and liberty’ under Art 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.2

Right to health is not included directly in as a fundamental right in the Indian

constitution incorporates provisions guaranteeing everyone’s right to the highest

attainable standard of physical and mental health. Art 21 of the constitution

guarantees protection of life. The supreme courts has held that the right to live with

human dignity, enshrined in Art 21,derives from the directive principles of state

policy and there for includes protection of health.3 Art 21 has been interpreted to

include right to health; it is also a fundamental right of workmen.4 Protection of the

right to health has an inextricable link with clean environment. Clean and healthy,

environment itself is a fundamental right.5 Art 23 is indirectly related to health, Art

23(1) prohibits traffic in human beings. It is well known traffic in women leads to

prostitution, immoral traffic of child, and these all things against of concept of social

security. Art 24 is relating to child labour it deal with “no child below the age of 14

year shall be employed to work in any factory or mine or engage in any other

hazardous employment,” thus this article is direct relevance to child health and

personal liberty to every citizen.

Part IV of Indian Constitution which deals with Directive principles of State policy

has several provisions on the subject of health and one can refer to the Art 38, 39(e),

39(f),41, 42, 47 and 48(a).6 Art 38 imposes liability on state that it will secure social

1 AIR 1978 SC 597

2 Balakrishnan, K. G.,(2008, September 14) National Seminar on Human Right To

Health, Bhopal ,9-10. Retrieved from supremecourtofindia.nic.in/...2008/right_to_

health_-_bhopal_14-9-08.p... 3 Bandhua Mukti Morcha vs. Union of India, AIR 1984 SC 802. 4 Kirloskar Brother ltd. vs. ESI Corporation, AIR 1996 SC 3261. 5 Jyal N.D. vs. Union of Indian, AIR 2004 SC 867: see also MC Mehta vs. Union of

India, AIR 2002 SC 1955. 6 The content of the Directive Principles of Indian Constitution dealing with health, is as

follows: Art 38 (1): “The State shall strive to promote the welfare of the people by securing and

protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of thenational life”.

(2) “The State shall, in particular, strive to minimize the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations”.


order for the promotion of welfare of the people. State cannot be called a welfare

state until it ensures the good health of every citizen. Art 39(e) is related with

workers to protect their health. Art 41 has imposed duty on state to public assistance

basically for those who are sick and disable. Art 42 makes provision to protect the

health of infant and mother by maternity benefit Art 47 imposed duty of the state to

raise the level of nutrition and the standard of living and to improve public health as

among its primary duties and, in particular. The state shall Endeavour to bring about

prohibition of the consumption except for medicinal purposes of intoxicating drinks

and of drugs which are injurious to health. Art 48A ensures that state shall endeavor

to protect and impose the pollution free environment for good health.

Art 246 gives three lists with specific areas of law making by the parliament and the

state legislatures, namely the union list, the state list and the concurrent list. The

concurrent list contains item on which both of them have the power to make laws.

The directly health care related items do not appear at all in the union list. In the

State List, the major directly health care related item is No.6: public health and

sanitation, hospitals and dispensaries, in the concurrent list three directly health care

related item are given: 19: drug and poison, 26: legal, medical and other professions,

29: prevention of the extension from one state to another of infectious or contagious

disease or pests affecting men, animal or plants. Of course there are other items

which are related to general health and other matters.

Art 39(e): “that the health and strength of workers, men and women, and the tender age

of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength.”

Art 39(f): “that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.”

Art 41: “The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want”.

Art 42: “The State shall make provision for securing just and humane conditions of work and for maternity relief.”

Art 47: “The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purpose of intoxicating drinks and of drugs which are which are injurious to health.

Art 48(a): “The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country”.


2. INTERNATIONAL INSTRUMENT ON HUMAN RIGHTS

(A) UDHR and ICESCR

It has laid down human rights norms acceptable to all nations. It is true that it does

not lay down binding legal obligation, but it has been accepted as a guide in the

interpretation of the charter provision relating to human rights. It has also laid down

normative basis for all future activities of the United Nations in human rights

jurisprudence.7The Universal Declaration of Human Rights (UDHR) and the other

human rights instrument also cast a duty on state parties to attain standard health for

this subject. Art 1 of the UDHR asserts human sensitivity and moral responsibility of

every State that "all human beings are born free and equal in dignity and rights. They

are endowed with reason and conscience and should act towards one another in a

spirit of brotherhood." The UN Charter thus reinforces the faith in fundamental

human rights and in the dignity and worth of the human person envisaged in the

Directive Principles of State Policy as Part IV of the Constitution. The right to

human dignity, development of personality, social protection, right to rest and leisure

are fundamental human rights to a workman assured UDHR and in Indian

Constitution. According to the UDHR under Art 25 says 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, and the right to security in the event of unemployment, sickness, disability,

widowhood, old age or other lack of livelihood in circumstances beyond his control.

Motherhood and childhood are entitled to special care and assistance. All children,

whether born in or out of wedlock, shall enjoy the same social protection.” While

this declaration articulated the core elements of public health concerns, it did not

create any binding obligations on the members of the United Nations. In subsequent

years, the right to health came to be incorporated in the International Covenant on

Economic, Social and Cultural Rights (ICESCR) which was presented before the UN

General Assembly in 1966 and adopted in 1976. While Art 12(1) of the ICESCR

referred to the ‘right to health’ in aspirational terms, Art 12(2) mandated specific

measures on part of the state parties to the covenant. Its language reads as

follows8“The State Parties to the present Covenant recognise the right of everyone to

the enjoyment of the highest attainable standard of physical and mental health. The

steps to be taken by the States Parties to the present Covenant to achieve the full

realization of this right shall include those necessary for:

7 Joshi K. C.,(2006) International law and human rights, Eastern Book Company,313. 8 Balakrishnan K.G., Supra note 2, 4-5.


(a) The provision for the reduction of the still-birth rate and of infant mortality

and for the healthy development of the child;

(b) The improvement of all aspects of environmental and industrial hygiene;

(c) The prevention, treatment and control of epidemic, endemic, occupational and

other diseases;

(d) The creation of conditions which would assure to all medical service and

medical attention in the event of sickness.”

It must be remembered that the rights enumerated in the ICESCR were subject to

‘progressive realization’ and further contingent on the ability of State parties to

muster adequate material resources for fulfilling the same.9

(B) World Health Organization and Right to Health

The World Health Organisation (WHO) issues the International Health Regulations

from time to time as a conduct structure for domestic policies. There regulations have

further support the connection between human rights and health. For example, Art

3(1) of the same states: “The New International Health Regulations shall be

implemented with full respect for the dignity, human rights and fundamental

freedoms of persons.” The right to health is a fundamental part of our human rights

and of our understanding of a life in dignity. The right to the enjoyment of the

highest attainable standard of physical and mental health, to give it its full name, is

not new. Internationally, it was first articulated in the 1946 Constitution of the World

Health Organization (WHO), whose preamble defines health as “a state of complete

physical, mental and social well-being and not merely the absence of disease or

infirmity”. The preamble further states that “the enjoyment of the highest attainable

standard of health is one of the fundamental rights of every human being without

distinction of race, religion, political belief, economic or social condition.”

The Right to Health means that governments must create circumstances in which

everyone can be as healthy as possible. Such environment range from ensuring

availability of health services, healthy and safe working conditions, adequate housing

and nutritious food. The right to health does not mean the right to be healthy. The

right to health has been enshrined in numerous international and regional human

9 Art 2(1) of the ICESCR reads as follows: “Each State Party to the present covenant

undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realisation of the rights recognised in the present Covenant by appropriate means, including particularly the adoption of legislative measures.”


rights treaties as well as national constitutions all over the world. Examples of UN

human rights treaties:10

• International Covenant on Economic, Social and Cultural Rights (ICESCR),

1966

• Convention on the Elimination of All Forms of Discrimination against Women

(CEDAW), 1979

• Convention on the Rights of the Child (CRC), 1989 Examples of regional human

rights treaties:

• European Social Charter, 1961

• African Charter on Human and Peoples’ Rights, 1981

• Additional Protocol to the American Convention on Human Rights in the Area

of GEconomic, Social and Cultural Rights (the Protocol of San Salvador), 1988.

In present time, increasing concentration has been paid to the right to the premier

achievable standard of health, human rights treaty monitoring bodies, by WHO and

by the Commission on Human Rights (now replaced by the Human Rights Council),

which in 2002 formed the mandate of Special Rapporteur on the right of everyone to

the highest attainable standard of physical and mental health.

3. SIGNIFICANCE OF HEALTH INSURANCE IN INDIA

The word “Health insurance” is a combination of two words “Health” and

“Insurance” The English word “health” comes from the old English word ‘Hale’

meaning “Wholeness”, a being whole, sound or well. The word “insurance” is

derived from the Latin language word ‘assurance’ which is synonym of ‘insurance’.

Broadly speaking health insurance is one important type of insurance so it is very

essential to understand the meaning and definition of insurance. In American

Jurisprudence, “Insurance” has been defined thus11

: “broadly defined, insurance is a

contract by which one party, for a compensation called the premium, assumes

particular risks of the other party and promises to pay to him or his nominee a certain

or ascertainable sum of money on a specified contingency. The authorities are

subsbstantially agreed that insurance may be defined as an agreement by which one

person for a consideration promises to pay money or its equivalent, or to perform

some act of value, to another on the destruction, death, loss or injury of someone or

something by specified perils.”

10

Retrieved from www.who.int/mediacentre/factsheets/fs323_en.pdf 11(1998) Handbook of insurance laws,(3rd Edition), Law publishers(India) Pvt.Ltd,4.


Taking in to account various developments in and outside the insurance sector,

showcasing the developments in the field of insurance, including developments

specific to health insurance, with brief summaries are given in chronological order.

Following the First World War, several foreign insurance companies started

insurance business in India, capturing about 40% of the insurance market in India at

the time of independence. It was in the year 1912 that the “Insurance Act” was

passed which was then revised in the year 1932. This was under the revised Act that

Life and Non-Life categories were recognized. In India, the general insurance is also

known as “Non-Life”. The health insurance was a part of the non-life business;

however, there was no clear demarcation then. Even today, both the life and the non-

life companies are allowed to have health insurance products.12

In India, Government

started exercising control on Insurance business by passing two acts in the year 1912

namely Provident Insurance Societies Act V of 1912 and Indian Life Insurance

Companies Act VI of 1912. These acts were later comprehensively amended and a

new Act namely Insurance Act 1938.13

The Workmen’s Compensation Act, 1923 came in force on 1 July 1924. The Act

provides for the payment by employers to their workmen of compensation for injury

by accident or disease arising out of and in the course of employment. So it is clear

that that act was the first example of health insurance in our country. The Workmen’s

Compensation Act is a social regulation and its object is speedy and expeditious

settlement of the claim arising out of employment injuries and death.14

The

Employees’ State Insurance Scheme comes under the class of compulsory insurance,

made compulsory by statute and administered by the Employees, State Insurance

Corporation which is a central government undertaking. The scheme was brought

into force by the enactment of the employees’ state insurance act, 1948 by the central

legislature in April 1948 when India was a dominion. It is a compulsory scheme of

health insurance to provide for certain benefits in the event of sickness, maternity and

employment injury to workmen employed in or in connection with the work in

factories including those belonging to the government other than seasonal factories.15

Central Government Health Insurance Scheme (CGHS) Established in 1954, the

CGHS covers employees and retirees of the central government and certain

autonomous and semi autonomous and semi-government organizations. It also

covers Members of Parliament, Governors, accredited journalists and members of

12 Kumar, Rohit (2011) Health insurance the need of hour. Jaipur: Raj Publication,72-73. 13 Retrieved from www.nos.org/media/documents/VocInsServices/m5-1f.pdf 14 Singh, Avtar(2002) Principles of insurance law. (Seventh Edition) New Delhi:

Wadhwa and Company, 382. 15 Ibidem, 384.


general public in some specified areas16

. The Mediclaim Scheme run by the

government-owned General Insurance Corporation (GIC) of India is currently the

only private voluntary health insurance scheme has been in operation since 1986 and

from time to time a number of revisions has been made to address the need of its

clients.17

Some scheme was also important aspect of development of health insurance

in India. The Universal Health Insurance Scheme (UHIS) was launched in 2003 by

the Government of India. It was initially launched to provide an affordable health

insurance cover for all, especially the underprivileged. The Ministry of Labour,

Government of India launched the RSBY in October 2007. Aimed to cover the

informal sector, all BPL families (as per Government of India guidelines) were

eligible to enroll in this scheme. The insurance regulatory and development authority

act 1999 (here in after referred to as the ‘1999’ act was enacted by the parliament for

establishment of authority to protect the interest of holders of insurance policy to

regulate, promote, and ensure orderly. Growth of the insurance industry, and was in

force 2002.18

Private and foreign entrepreneurs were allowed to enter the market with

the enactment of the Insurance Regulatory and Development Act (IRDA) in 1999.

For the betterment and security of the health of the Indian people the government of

India made several plans and policies. The ‘Bhore Committee19

’ was appointed by

the Government of India in October 1943 to make a survey of the existing position

regarding health conditions in India. Indian government formed many Health

Committees that have given major contribution in the development of health

insurance. Health insurance was not so developed before 1947 in India. The

establishment of the Planning Commission in, 1950 and the introduction of the

planned methods of or the development of India was an event of great significance.

The First Five-Year Plan provided Rs.140 crores and Rs. 274 crores respectively for

the health development schemes, apart from sums provided by the Centre and the

states for their normal health activities. After 1951 the Indian government has given

its focus on insurance sector. In that period this sector developed very rapidly and

those days health insurance was covered in life insurance sector. In 1956

16 Anita, J, Emerging health insurance in india – An overview. 10th Global Conference of

Actuaries, 84 Retrieved from www.actuariesindia.org/.../Emerging%20Health%20

Insurance%20in%20... 17 Bhat, Ramesh & Reuben Elan, Benjamin(2002, October-December), Management of

claims and reimbursements: ffffThe case of mediclaim insuranc policy, 27;4. Retrieved from www.vikalpa. com/pdf/articles/ 2002/2002_oct_dec 15_28.pdf

18 Purnima Prasad and Others vs. Oriental Insurance Company Limited and Others, AIR 2006 (Pat)158.

19 Bhore, Sir Joseph ,(1946) Report of the health survey &development committee. (Vol II) Retrieved from nihfw. org/.../Reports/Bhore%20 Committee%20Report%20-

%20Vol%20I...


nationalization of life insurance sector was an important step. Because of that

insurance sector developed significantly, after various committees on health care

like –Bhor, Mudilyar,Chadha, Mukhrjee, Jungwal, Kartaar, Srivastab. In 1975

general insurance sector nationalization had been done, which had given a

magnificent boost to the health insurance sector. By the end of the Five Year Plan

(1956-61), “health survey and planning Committee”, the Mudiliyar Committee, was

appointed by the government of India to review the progress made in the health

sector after submission of the Bhor Committee report. The major recommendation of

this Committee report was to limit the population served by primary health centers in

40,000 with the improvement in the quality of health care provided by these centers.

Also, provision of one basic health worker per 10,000 populations was

recommended.20

the Chadha Committee was appointed under the chairmanship of

Dr. M.S. Chadha, the then Director General of Health Services in 1962-1963, to

advise about the necessary arrangements for the maintenance phase of the National

Malaria Eradication Program. The Mukherjee Committee headed by the then

Secretary of Health Shri Mukherjee, was appointed to review the performance in the

area of family planning. The Jungalwalla Committee in 1967 gave importance to the

integration of health services. The Kartar Singh Committee on multipurpose workers

in 1973 laid down the norms about health workers. The Srivastava Committee on

medical education and support manpower in 1975 suggested the creation of bands of

Para-professional and semi professional health workers from within the community

(e.g. School teacher, post masters etc.). The Alma Ata Declaration of 1978 launched

the concept of health for all by the year 2000. It was signed by 134 governments

(including India) and 67 other agencies.

The responsibility of the state to provide comprehensive primary health care to its

people as envisioned by the Alma Ata Declaration led to the formulation of First

National Health Policy (NHP) in India in 1983. The National Population Policy

(NPP) was announced in the year 2000, the overarching policy framework for family

planning and maternal and child health goals, objectives and strategies. Nearly

twenty years after the first policy, the Second NHP (2002) was presented. In 2005 the

government of India has launched the National Rural Health Mission (NRHM), with

the goal of improving the availability of and access to quality health care by people,

20 WHO, (2007) Origin and development in primary health care. Retrieved from

www.who.org


particularly in rural areas.21

The National Health Bill, 2009 seeks to provide health,

health equity and justice for all Indians.22

4. HEALTH INSURANCE AS INSTRUMENT TO ACHIEVE RIGHT TO

HEALTH

Health insurance is a form of insurance whose payment is contingent on the insured

incurring additional expenses or losing income because of incapacity or bad health.

A health insurance policy is a contract between an insurer and an individual or a

group in which the insurer agrees to provide specified health insurance cover at a

premium. Depending on a policy, the premium may be payable either as a lump sum

amount or in installments. Health insurance generally provides direct payment or

reimbursement of expenses incurred during an illness. What would be the nature of

protection would depend on the kind of policy purchased and the cost and range of

protection under that policy. Health insurance could be either a personal scheme or a

group scheme sponsored by an employer. Unlike life insurance where there are only

two parties i.e. the insured and the insurer, in the case of health insurance there are

three parties namely the insured, the insurer and the provider. The generic features of

insurance are applicable to the concept of health insurance. Insurance primarily rests

on the principle of pooling of risk associated with the same cause i.e. health to share

losses on some equitable basis.

Health insurance and the right to health are related to each other because Health

insurance is an essential part of health care financing. Life is full of uncertainties.

Risk lurks in every nook and corner of human life. In short, life is unpredictable. We

need to be prepared for such circumstances. Leading a happy life, involves good

planning and analysis of personal health. The government at central and state level is

trying to improve the health care system both in the urban and the rural sector. Health

insurance gives social security to those vulnerable people who really need health

security. The governments of the central and state level are trying to improve the

health care system both in the urban and the rural sector. The health sector is

performing an important role of progress of any country. We have many tools like as

health insurance which can reduce many problems because “health insurance” is not

just type of insurance but also provides right to health as we want to develop the

concept of social security. We can use health insurance as tools of right to health

because health insurance plays very important role in providing right to health. Yet

21 WHO, (2008 August) Primary health care; Indian scenario, WHO Country Office for

India.Retrieved from www.who.org 22 National health bill Retrieved from http://www.medindia.net/news/indiaspecial/THE-

NATIONAL-HEALTH-BILL-2009-49956-1.htm#ixzz28hUEjq61


its penetration in India is woefully inadequate. With low public expenditure on

health, households have been burdened with meeting most of their health care

expenses out of their earnings, savings or borrowings, but often, through disposal of

assets. Despite these efforts the health sector still remains as neglected and health

insurance is not an exception. Time to time the government at the center and state

announces health insurance schemes but all these are far from the reality. If there is

any weight in the saying “Health is Wealth” than the health sector in general and the

health insurance in particular should be given due concern and importance. Accidents

do happen and you need to be prepared for such situations. In times of high health

cost, you need to get covered for health risks. In India we are a developing country

and growing very rapidly in every field but some sectors need more attention like as

health care because good health is an important factor and playing an essential role in

the development of any nation. Our government made many policies/laws but

unfortunately they not enforced properly. The reach of such programs is limited only

rich and high class people. Vulnerable groups those who really need health care they

never get these plans and information. Our government needs to make some new law

and rules related to health insurance.

Indian health financing scene raises a number of challenges, which are:23

(a)

increasing health care costs, ( b) high financial burden on poor eroding their incomes,

( c) increasing burden of new diseases and health risks and (d) neglect of preventive

and primary care and public health functions due to underfunding of the government

health care. Given the above scenario exploring health-financing options become

critical. Health Insurance is considered one of the financing mechanisms to overcome

some of the problems of our system. Some challenges related to implementation of

policy.24

(i) Large number of employers tries to avoid being covered under the

scheme, (ii) Large number of posts of medical staff remains vacant because of high

turnover and lengthy recruitment procedures, (iii) There is duality of control, (iv)

Rising costs and technological advancement in super specialty treatment, (v)

Management information system is not satisfactory. (VI) There is low utilization of

the hospitals (vii) The workers are not satisfied with the services they get. (viii) In

rural area the access to services is also a problem.

5. JUDICIAL PRONOUNCEMENT

The Indian Supreme Court and high court also playing a very important part to

develop the concept of the right to health in India. In Bandhua Mukti Morcha Vs

23 Mavalankar, Dileep & Bhat, Ramesh(2000, November) Health insurance in india:

Opportunities, challenges and concerns,Ahmedabad: Indian Institute of Management. Retrieved from www.iimahd. ernet.in/~dileep/PDF%20 Files/Insurance.pdf.

24 Ibidem, 9


Union of India25

The Supreme Court held that the right to health includes the health

care and right to determinants of health such as food security, water supply, housing

and sanitation etc. It reflected the importance of health as a prerequisite for right to

life whereby it can be inferred that the right to health is an important human right and

its denial can be detrimental to the existence of human life. Art 25 [2] of the UDHR

and Art 7 (b) of the ICESCR has been cited by the Supreme Court while upholding

the right to health by a worker.26

It has also been held that the right to health is

integral to the right to life and the government has a constitutional obligation to

provide health facilities.27

Paschim Baga Khet Mazoor Samiti Vs State of West

Bengal 28

that that Art 21 imposes an obligation on the State to safeguard the right to

life of every person therefore 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 Art 21. Failure of a government hospital to provide

a patient timely medical treatment results in violation of the patient's right to life.

Similarly, the Court has upheld the state's obligation to maintain health services.29

In

Sheela Barse Vs Union of India and another 30

case pertaining to the admitting of

non-criminal mentally ill persons in prisons in West Bengal, the Supreme Court has

held that “(1) Admission of non-criminal mentally ill persons in jails is illegal and

unconstitutional…. The Judicial Magistrate will, upon a mentally ill person being

produced, have him or her examined by a Mental Health Professional/Psychiatrist

and if advised by such MHP/Psychiatrist sends the mentally ill person to the nearest

place of treatment and care.” It has further directed the state to improve mental health

institutions and integrate mental health into primary health care, among others.

In Parmanand Katara v. Union of India,31

the Supreme Court said that whether the

patient was innocent or a criminal, it is an obligation of those in charge of

community health to preserve the life of the patient. Every doctor has a professional

obligation to extend his services with due expertise and care for protecting life.

Another significant decision which strengthened the recognition of the ‘right to

health’ was that in Indian Medical Association v. V.P. Shantha32

In that case, it was

ruled that the provision of a medical service (whether diagnosis or treatment) in

return for monetary consideration amounted to a ‘service’ for the purpose of the

Consumer Protection Act, 1986. The consequence of the same was that medical

25

AIR 1984 SC 802 26

CESC Ltd. Etc vs Subhash Chandra Bose, AIR 1992 SC 573 27

State of Punjab v. Mohinder Singh Chawla, (1997) 2 SCC 83. 28

AIR 1996 SC 2426 29

State of Punjab v. Ram Lubhaya Bagga, (1998) 4 SCC 117. 30

(1986) 3 SCC 596. 31 (1989) 4 SCC 286; AIR 1989 SC 2039. 32

AIR 1996 SC 550


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.

In Consumer Education and Resource Centre Vs Union of India 33

it was held that

the right to health is essential for human existence and is, therefore an integral part of

the right to life. Fundamental right under Art 21 read with Arts 39 (c), 41 and 43 of

the Constitution and makes the life of the workman meaningful and purposeful with

dignity of the person. Right to life includes protection of the health and strength of

the worker and is a minimum requirement to enable a person to live with human

dignity.

CONCLUSION

Cost of medical treatment is going higher day by day and some cases it becomes

unreachable for poor people. In some states the basic facility in our government

hospitals is not even present there. In this condition the situation for the poor people

so in this scenario Health insurance can play very important role in our country. We

need to develop a concept of social security in our country. We consider the social

security as the continuous economic support to human being for his or her social well

being-at least in the evening years of his /her life. Get big instant defines social

security for the developing country as “any kind of collective measure or activities

designed to ensure that members of the society meet their basic needs”. According to

ILO “social security is the protection which society provides for its members through

a series of public measure, against the economic and social distress that otherwise

would be caused by the stoppage or substantial prediction of earnings resulting from

sickness, maternity, employment, injury, unemployment invalidity, old age and

death”. But it needed to define broadly by including all financing arrangements

where consumers can avoid or reduce their expenditures at the time of use of

services. Legal attention is very necessary to develop the social security concept. The

role of judges and our regulatory bodies is also important to establish health

insurance as a social security. Indian constitution casts a duty on legislature to

improve the health condition of citizens. It’s an alarming situation to develop the

concept of social security. Existing policies which are available for everyone are very

complicated. In this relation claims settlement process need to make easy. Health

insurance should be compulsory by government for all poor and vulnerable groups to

ensure the health of every citizen.

33

(1995) 3 SCC 42


(2012-13) 8 Universitas 135-156

SUSTAINABLE DEVELOPMENT IN THE LIGHT

OF ISLAM

Fouzia Khanam

Abstract

Sustainable development is matter of global interest and

concern today. In the initial stage it was only linked with

environmental problem and its conservation. But steadily its

dynamic concept influenced field like economy, planning and

architecture, education, polity and sociology etc. It has given

birth to concepts like sustainable economy, sustainable

architecture and sustainable livelihood. In the present paper

keeping the vision of sustainability , we will explore the Islamic

ideals to enhance and help sustainability to reach hearts of

people since researches have shown that the motivational level

of a society reaches maximum when the matter has religious

concern .And therefore our paper is urging some attention of

the intelligent readers towards Islamic ideals. Islamic ideals in

today’s world is snatching everyone’s attention and this article

will help us in building a sustainable society.

Keywords: Islam, Sunnah , Sustainability

Contents

Introduction

1. Sustainability: An Overview

2. Introduction to Islam

3. Sustainable Development in Islamic Perspective

(A) Ecological Perspective

(i) Care of Biodiversity

(ii) Care and Conservation of Water

(iii) Stability of Atmospheric layer

(iv) Land use and reclamation

(v) Care of Food and Food Resources

FOUZIA KHANAM

~ Department of

Education, Aligarh

Muslim University,

Aligarh, India;

fouziakhan19@

gmail.com

Fouzia Khanam received her B.Sc. with Physics Hons., B.Ed. from Banaras Hindu University,Varanasi & M.Ed. from Aligarh Muslim University, Aligarh, and is currently a Ph.D candidate in Education at Aligarh Muslim University, where her research focuses on sustainable development and its relevance to Madarsa and secondary

education system in India


(B) Economic Perspective

(C) Social Perspective

(i) Dignity of individual

(ii) Justice

(iii) Freedom

(iv) Good Government

(v) Marriage and Family

(vi) Education, knowledge and intellect

Conclusion & Suggestion

INTRODUCTION

Suppose a large number of people are caught in a cruise surrounded by the ocean

with limited supply of food and water. There is no way to escape, only way is to live

with co-operation and understanding using the resource very cautiously such that it

do not replenish until the helps come. This way of living is the demand of today’s

crises condition and in modern technical language can be termed as Sustainable

Development .A development goes with understanding and mutual co-operation of

every nation and is not in the hand of one country, with equal conscience of the

needs of future generation.

The word sustainability comes from the Latin word ‘sustinere’ which means ‘to

maintain’, while sustainability in general sense is the capacity to maintain certain

process or state, or to maintain balance among the three facets of life-socio,

economic and ecological. Another popular definition linking sustainability with

development is “Development that meets the needs of present without compromising

the ability of future generation to meet their own needs”. Brundtland Commission

further says that “It contains within it two key concept of ‘needs’, in particular the

essential needs of the world’s poor, to which overriding priority should be given, and

the idea of limitation imposed by state of technology and social organisation on the

environment’s ability to meet present and future need.”1

Sustainable Development is a long-term process. It can also be said as continuing

process, which can be achieved in a short run; its approach is balanced and

integrative, it has common goals but different routes, it accepts nature not only as a

1 Kara, P.K. Sustainable development: Concept, scope and ecological perspective. Pati,

R.N. & Schawrz –Herion, O. (ed.),Sustainable development. D. K Printworld (P) Ltd, New Delhi,346-347.


resource for development but also as the earthly womb for survival and development

of human kind, it is participatory in nature, and it is based on the principles of

equality and justice. Equality and justice are important for sustainable development.

It is four dimensional:

• Equality among nations –rich, poor, developed and developing nations;

• Equality within countries-between regions ,social classes, genders, sectors of

activities;

• Equality between generation, and

• Equality between economics ,ecology ,science and spirituality.2

The International Union for Conservation of Nature (IUCN), United Nations

Environment Programme (UNEP) and World Wildlife Conservation (WWF) defined

Sustainability as improving the quality of human life while living within the carrying

capacity of supporting ecosystem. The United Nations (UN) in its World Summit

Outcome Document, 2005 has referred to the interdependent and mutually

reinforcing pillars of sustainable development as economic development, social

development and environmental protection.

In economic context, a business is

sustainable if it has adapted its practices for the use of renewable resources and is

accountable for environmental impacts of its activities. It deals with the proper

handling of finance in the world, bridging the gap between the rich and the poor and

decoupling economic growth with environmental management.3

In social context,

sustainability can be expressed as healthier human relationship, which comes under

establishing the bond of kinship, and a happy and healthier environment at home for

full fledge development of an individual i.e. of the next generation .4

Finally the

ecological perspective defines sustainability as the ability of ecosystem to maintain

ecological process, functions, biodiversity and productivity into the future.5

These

will be basis while discussing sustainability in Islamic light as the environment of

human being can be easily divided into these three broad categories.

1. SUSTAINABILITY: AN OVERVIEW

Technically it started in 1969 with the National Environmental Policy Act (NEPA).

It was centered to “foster and promote the general welfare, to create and maintain

2 Retrieved from http://www.forestry.gov.uk/forestry/edik_59fmzf. 3 Dash, D. & Satapathy, M.K. (2007), Education for sustainable development: Role of

college and teacher training institution, University News, 2. 4 Ibidem.

5 Retrieved from http://www.sustainabledevelopmentinfo. com/history-of -sustainable -

development.


conditions under which man and nature can exist in productive harmony and fulfill

the social, economic and other requirements of present and future generations”.In

July 1970, President Nixon submitted to the US Congress a reorganization plan

proposing the establishment of a US Environmental Protection Agency as an

independent agency in the executive branch of the federal government. The plan

proposed bringing together 15 components from five executive departments and

independent agencies. On 2 December 1970, the US Environmental Protection

Agency (EPA) began its operations, their job was to improve and preserve the quality

of the environment, both national and global. EPA has been working to protect

human health and the natural resources on which all human activity depends.

Stockholm Meeting was a big event of the 1970′s where the UN met on the Human

Environment in Stockholm, Sweden. In this meeting, the developed countries voiced

concern about the environmental implications of worldwide development, while the

countries that were still developing raised their own continuing need for industrial

development. Therefore, the idea of “sustainable development” was born out of an

effort to find an understanding between the development requirements of the

countries in the Southern Hemisphere and the conservation demands of the

developed states in the North. The meeting increased awareness of the world

environmental issues and set in motion events which led to the general

acknowledgment of the concept of “sustainable development” as a method of

realizing the development requirements of all folks without having to sacrifice the

earth’s capacity to sustain life.

Out of the Stockholm Meeting, the UN Environmental Program was formed to

license the concept of environmentally-sound development. Based in Nairobi, Kenya,

UNEP provided the UN with an agency to look at the planet’s growing

environmental and development issues with a view to recommending to nationwide

states and world bodies on suitable actions. The work of the UNEP helped in

launching, among other stuff, the World Environmental Academic Programme in

1975 and the World Conservation Technique in 1980.

In December 1983, Gro Harlem Brundtland, the Prime Minister of Norway, was

asked by the Secretary General of the UN to chair a special independent commission,

the World Commission on Environment and Development called the WCED. Its

mission was to examine vital environmental and development issues around the

planet and fashion practical suggestions to address them. A second target was to

bolster global cooperation on environmental and development issues. And,

eventually, the Commission wanted to raise the level of knowledge of and dedication

to viable development on the side of people, associations, companies and

governments.


When the Commission was organized, some wanted it to be restricted to

environmental problems only. Nevertheless they suspected that environmental

quality and supportable development were two inseparable ideas which should be

linked in compound a world technique. With this established, the commission

therefore outlined viable development as “development that fulfills the requirements

of the present without risking the capability of generations to come to meet their own

needs.”

A further end result of the WCED report, was the UN Meeting on Environment and

Development .A two year series of preparatory conferences finished in the Earth

Summit in Rio de Janeiro, in June 1992. This marked the second meeting of global

leaders to talk about environmental and development issues and was significantly

bigger than its earlier the Stockholm Meeting held twenty years back.

The Earth Summit was bigger not just in the level of collaboration by the states of the

Earth Summit, but also in the extent of issues it tried to address. Over a hundred

heads of state and central authority attended the Earth Summit and 170 countries sent

delegations. As an element of the Earth Summit, countrywide leaders had a chance to

sign world conventions on global warming and biodiversity, a “Declaration of

Environment and Development” and an Agenda for the 21st century (Agenda 21),

which looked to create a strong effort to teach folks about the state of both

environment and development, and to help them to make calls which can lead to

supportability. The Secretary General of United Nation Conference on Environment

and Development (UNCED), Maurice Robust , summarized Agenda 21 as, a

“program of action for a tolerable future for the human family and an initial step

toward making sure the world will change into a more just, secure and wealthy

habitat for all humanity.” Agenda 21 called on all nations of the planet to try a

thorough process of planning and action to achieve supportability. As well as

worldwide agenda, this document also detailed a role for towns and counties.

On the anniversary of the Earth Summit in June 1993, President Clinton signed an

executive order creating the President’s Council on Tolerable Development. The

Council was established to assist in the creation of U.S. Policies which will inspire

industrial expansion, job creation, and environmental protection. In his address to the

country he revealed, “Every country faces a challenge to spot and implement policies

that may meet the requirements of the present without sacrificing the future. America

will face that test with the assistance of this Council and the concepts and experience

that its members bring to this crucial task.”

Their first work concluded in February 1996, with the publishing of their report

titled, “Sustainable America: A New Understanding for Wealth, Opportunity, and A

Good Environment for the Future.” In January 1997, the Commission issued its


second major report titled, “Building on Understanding: A Progress Report on

Supportable America.”6

Starting in April 2001, preparation for the World Meeting for Viable Development to

be held in Johannesburg, occurred at the local, nationwide, sub-regional, regional and

worldwide levels. Talks took place addressing not only Agenda 21, but also facing

new vital issues the world is facing in this century with globalization.

There were four world PrepComs held in preparation for WSSD. The World

Conference on Tolerable Development marked the tenth year anniversary of the 1992

Earth Peak , the UN Meeting on Environment and Development in Rio de Janeiro,

Brazil. WSSD took place from 26 August– 24 September 2002 in Johannesburg,

South Africa It presented an expedient opportunity for presidencies, the United States

‘agencies, multilateral money establishments, NGOs, and civil society to reinvigorate

their world commitment toward viable development. Roughly 60000 folks from

around the world attended the Peak. The Peak resulted in a chain of commitments in

5 concern areas that were backed up by particular administration statements on

programs, and by partnership initiatives. The 5 concern areas included water, energy,

health, farming and biodiversity. The US Under Secretary of State for Worldwide

Affairs Paula Dobriansky identified the US. Goals for the 2002 World Conference

for Viable Development in Johannesburg. “The US plans to work in co-operation

with executives, the non-public sector and NGOs to reach supportable development

initiatives to reduce the quantity of folk getting by without clean drinking water;

augment access to scrub energy, lessen hunger and increase rural productiveness ;

guarantee universal access to basic education ; stem AIDS and reduce TB and

malaria ; and manage and preserve forests and seas”.7

2. INTRODUCTION TO ISLAM

Islam is the way of life; it has originated from the word ‘Salaam’ which means peace,

hence Islam propagates living with peace and harmony. It gives much importance to

individual differences but maintain unity in diversity. It is a divine plan spread by the

last messenger of Islam, Prophet Muhammad peace be upon him (PBUH) around

1446 years ago but had powerful reason in it, such that it nearly spread into each part

of the world. Certainly it is not only a religion, as it is not based on any blind faith,

mythological ideas, hypocrisy and meaningless rituals. It is based on divine faith,

which tells us about the duties, responsibilities and rights of the people and it goes

with nature’s law and can be proved when a person uses his meta-cognitive ability to

6 Ibidem.

7 Ibid.


understand, contemplate and comprehend the things. So, the ultimate foundation of

Islam is the declaration that there is no God except the One and Only God and that

Prophet Muhammad (PBUH) is His messenger. Islam, submission to truth is not a

new religion but the only reliable path trod upon by all the real Prophets and

enlightened beings of the past and present.

Historically, Quran was revealed to the Prophet Muhammad (PBUH) during the year

610 AD while he was meditating in the cave of Hira. The Quran is known by various

names Al-Furqan (discrimination between true and false), Al-Mushaf (collection of

pages), Al-Dhikr (remembrance) due to its wonderful style in which it is written ,it is

sometimes in form of prose narrating something and sometimes in rhymes with

beautiful nodes. The Quran is divided into 114 chapters which is called surah in form

several short & long verses called ayahs (signs).The Qur’an begins with longest

surahs, end with the shorter ones and is divided into almost 30 equal proportions

called Juz, for the convenience of reading one portion a day to complete within a

month. The surah revealed at Mecca for 10 years before the Prophet’s migration to

Medina are called Meccan surahs and amount to 86. These are generally short,

powerful and passionate in their call of mankind to heed God’s unique sovereignty

and hold over whole universe. The revelations after the migration to medina, in the

year 622 AD ,are called Medina ayahs. This year is also marked as Islamic Lunar

calendar (Hijri).Islam is based on Qur’anic teachings as well as sunnah of Prophet

Muhammad, sunnah is said to be all that Prophet (PBUH) practiced and preached

.And so we shall discuss sustainable development in the light of both Quranic

teachings and sunnah of Prophet Muhammad (PBUH).8

3. SUSTAINABLE DEVELOPMENT IN ISLAMIC PERSPECTIVE

Allah says in Qur’an in: to reflect on the signs Allah has created on the earth9,and not

to transgress the boundaries set by Allah and to remain conscious (knowledge) of

Allah10

, and to hold Quran and sunnah with knowledge of the result of all those who

denied Allah’s existence11

.

These three verses (ayahs) apparently reveal what Allah wants from human being,

first is to observe the existence of Allah from His creation, secondly not to transgress

the limits set by Him, preserve and protect it as we will be accountable for it, thirdly

for the believers, directed way to achieve these goals by believing and following

what Allah has revealed in Quran and directed his apostle, to integrate all other

8 Haeri.F.S.(2012), The essential message of the Qur’an. New Delhi:BPI india Pvt Ltd,.6 9 Ibidem, chap 16: verse 13 10 Ibid., chap 2: verse 187 11 Id., chap 4: verse136


human beings with revelation not mentioned in Quran. And thus it paves a smooth

way for ‘development for all’.

Sustainable development as mentioned is the development that meets the needs of

present generation without compromising the needs of future generation.12

And it

aims at ecological, economical and sociological development. The concept of

sustainable development in Islam can be defined as the balanced and simultaneous

realisation of consumer welfare, economic efficiency, attainment of social justice

,and ecological balance in the framework of an evolutionary knowledge –based,

socially interactive model defining Shuratic process13

. So Islam do not just focuses

on economic, valueless materialistic development but has deep interest in welfare of

all people, and believes that the structure of development should be built within

values and with ecological balance as well.

And sustainable development in Islam has also all the three dimensions ecological,

economical and social.

(A) Ecological Perspective

In Ecological Perspective sustainability is defined as the ability of ecosystem to

maintain ecological process, functions, biodiversity and productivity into the future.

There are three chief conservation objectives: (1)Maintaining

essential biogeochemical cycles and life-support systems; (2)Preserving genetic

diversity; (3)Establishing a sustainable use of species and ecosystems.14

Through

consumption(population, technology and resources),and,environmental

management(atmosphere, water resource, land use, energy, food and food security,

treatment of material toxic substance and waste).

(i) Care of Biodiversity

The diversity of every being is recognized in the Quran ,that the animals scattered on

the earth’s surface are one of the signs of Allah.15

He has created biodiversity for the

benefit of mankind who is requested to protect it from degradation and pollution and

is responsible for its sustainable use.

12

Purvis, M. & Grainger,A. (2005), Sustainable development as an ambiguous compromise: Exploring sustainable development geographical perspective. Earthscan Pub Ltd.,London,6.

13 Retrieved from http://water.wiki.net/…/Sustainable_Development_in_ Islamic_Law

_Iyad_Abumoghli.doc 14 Dash & Satapathy, Supra note 3. 15 Haeri, Supra note 8, chap 45: verse 4. Al Quran.


In some of the ayah Allah asked men not to waste anything even if you have in

excess and commend that he does not love the wasteful.16

He asks us to be bountiful of his gifts and use it judiciously as He has created

everything in due measure and we will be accountable for how we use it, as in the

above ayah it is mentioned that enjoying the share of our effort and hard work is not

accepted until you give a share to the poor i.e. in every gift there is a share of poor

and needy, with a strict command not to spend in excess for our luxuries as it is not

liked by the Creator.

Allah grants abundant sustenance, for whom He will or reduces it for whom He

wills.17

There are several examples in history that any civilization which had

transgressed the boundaries set by Allah He took His mercy and destroyed them.

Mankind is sent as the caretaker and his status is above all the beings in this earth, he

is also known as “Ashraful Makhluqat” i.e. above all creations of Allah.

Preservation of biodiversity has been emphasized so much in Islam that Prophet

(PBUH) said-“When doomsday comes if someone has a palm shoot in his hand he

should [still] plant it”.18

Prophet (PBUH) said-“If anyone plants a tree, patiently

protects it and looks after it until it bears fruit, Allah the Mighty and Glorious will

count as charity for him anything for which its fruit are used”.19

There is a strong

misconception that since eating non-vegetarian food is allowed in Islam, Islamic

monotheism does not favor animal conservation or there is no rights of animals in

Islam. Whereas Islam while allowing some of the animals as halal (lawful) has

strictly created boundaries of their treatment as;

Prophet Muhammad (PBUH) says “If someone kills a sparrow for sport ,the sparrow

will cry out on the Day of Judgment, ‘O Lord! That person killed me in vain! He did

not kill me for a useful purpose”.20

The messenger of Allah said that the lawful cause

to kill an animal is to eat it and not to chop its head and throw it.21

Killing an animal

in various cold region of the world is a must condition since the heat and nutrition

provided by them cannot be compensated by the energy given through any plants

heat.

Islam forbids what is harm for us. Many Islamic scholars like Zakir Naik believe that

human body structure is built in such a way it is able to digest and chew the meat,

16 Ibidem, chap 6: verse 141. 17

Ibid. chap13: verse 26. 18

Retrieved from http://www.foreninger.uio.no/mss/tr/hadith/hadith 1. Html

(500ahadith). Sunan al-Baihaqial Kubra. 19 Ibidem, Ahmad. 20 Ibid, Sunan al-Nisai. 21 Id, Nisai,Hakim.


and similarly eating animals other than the herbivorous animals prescribed in Islamic

shariyah is proved to be unhealthy. And most importantly he pointed that the

herbivorous animals like goat, buffalo, deer and camel etc. are never scanty in

number i.e. their number is much larger in number in proportion to the humans

consumption.22

And we find that the decrease in number of these animals is due to

sport killing or due to over consumption of the product gained by them.

(ii) Care and Conservation of Water

Water rights and its conservation are mentioned in Holy Qur’an and deeply

emphasized by Prophet Muhammad (PBUH).When the verses of the Quran

concerning the role of water in man’s existence are read in succession today, they

appear to express ideas that are obvious. The reason for this is simple ‘the water

cycle’ in nature to a greater or lesser extent talks about ability of earth to fulfill its

need and maintain balance. Water cycle is one of the best means to explain the

natural balance set by Allah.23

And this water cycle explains the occurrence of rain in

Qur’an in three stages:

1st stage: “It is Allah Who sends the winds..”2nd stage: “..and they raise the

clouds:then does He spread in the sky as He wills, and break them into

fragments…”and 3rd

stage: “..until you see rain drops issue from midst there of.”

“Have you observed the water you drink? Do you bring it down from the rainclouds?

Or do We? If it were Our will, We could make it salty. Then why are you not

thankful?” .24

“He Who has created seven heavens in full harmony with one another: no

incongruity will you see in creation of the creation of the Most Gracious. And turn

your vision (upon it) once more:can you see any flaw?Yes, turn your vision(upon it)

again and yet again: (and every time) your vision will fall back upon you, dazzled

and truly defeated”.25

In many of the ayah commandment of Allah is to maintain the balance and be on mid

path, the path he named siratal mustaqeem (right or the mid path).26

The path in

which we do not go towards extremes or excess. Allah has ordered us to beautify our

22 Retrieved from http://www.youtube.com/watch?v=uGVHQGfq6iE(Is slaughtering

animal can break the ecology). 23 Retrieved from http://www.islamweb.net/emainpage/index. 24 Haeri, Supra note 8 chap 56: verse 68-70. Al Quran. 25 Ibidem, chap 67: verse 3-4 26 Ibid. chap 1: verse 6


self for every act of worship, and eat and drink (freely) but not to waste as He does

not love the wasteful.27

The efficient use of water is taught by Prophet (PBUH) without wasting and treating

each source of fresh water as a public property. Prophet (PBUH) has asked people

not waste water even if you are on a running river” and even in the essential act of

praying (ablution) he mentioned-“Whoever increases (more than three),he does

committed injustice and wrong (excess)”and similarly he took special care that

people do not pollute the fresh water sources. He also said: “No one should bathe in

still water, when he is unclean.”

(iii) Mention of Stability of Atmospheric Layer

Atmosphere is made up of the different density forming layers and each layer below

is denser than the above layer ,these layers of atmosphere protects heat of the sun to

escape, ozone layer present in atmosphere protect ultraviolet rays of the sun from

reaching the earth.

“He raised the heavens and set up the measure (balance), so that you should not

transgress the measure. Always measure with justice and do not give short measure.” 28

Allah commands human being and gives signs that we should not use anything in

excess which harms the balance of the nature set by Him.

(iv) Land use and reclamation

Land usage has special reference in Islam and dealing it judiciously and sincerely

creates harmony and peace in the world.

Narrated Anas bin Malik: Allah's Apostle said, "There is none amongst the Muslims

who plants a tree or sows seeds, and then a bird, or a person or an animal eats from it,

but is regarded as a charitable gift for him." 29

And Allah’s command is “Make not mischief on earth”.30

‘Mischief’ in Arabic word

is fassad i.e. corruption .God penalizes people with same type of affliction that they

have inflicted on His creation. The other meaning of fassad include taking something

unjustifiably an unfairly or spoiling or degrading (natural) resources, fassad creates

imbalance in the pleasant living of human beings.

The word fassad is not only

associated with any specific time and place, and thus is universal. Fassad is

27 Id. chap 7: verse 31 28 Id. chap 55: verse 7-9 29

Retrieved from http://www.quranwebsite.com/hadith/bukhari_ volume _1.htm. Bukhari. 30 Haeri, Supra note 8 chap 30: verse 41. Al Quran.


mentioned in the context of “land and sea” and can be similarly used to refer all other

components of the ecosystem. And thus Allah mention that his wrath will descend on

human beings if we commit excess. As these verse: “And it was said: "O earth!

Swallow up your water, and O sky! Withhold (your rain)." And the water was

diminished (made to subside) and the Decree (of Allah) was fulfilled (i.e. the

destruction of the people of Nuh (Noah). And it (the ship) rested on Mount Judi, and

it was said: "Away with the people who are Zalimun (polytheists and wrong-

doing)!".31

These include withholding the water by building damps which has deprived lakhs of

farmers in India from the free irrigation facility from the local river, and thus they

have to live on government mercy. Holding of water was extremely discouraged

whether it is for any purpose.

Narrated Abu Huraira: Allah's Apostle said, "Do not withhold the superfluous water,

for that will prevent people from grazing their cattle."32

In another hadith narrated not

to withhold the superfluous water in order to withhold the superfluous grass.33

Distribution of land, buying and selling of land with fair means is decreasing day by

day, people are running over occupying as much land as possible whether it is by

lawful or unlawful means. Certainly we have forgotten that it is not our property and

Allah is the owner of earth and heaven. Consequence of the greediness and immoral

act will face loss in this as well as the world hereafter.

Narrated 'Abdullah bin Mas'ud : The Prophet said that whoever takes a false oath to

deprive somebody of his property will meet Allah while He will be angry with him.34

Narrated Abu Huraira: The Prophet said, "There are three types of people whom

Allah will neither talk to, nor look at, on the Day of Resurrection. (They are):

1. A man who takes an oath falsely that he has been offered for his goods so much

more than what he is given, 2. a man who takes a false oath after the 'Asr prayer in

order to grab a Muslim's property, and 3. a man who with-holds his superfluous

water. Allah will say to him, "Today I will with-hold My Grace from you as you with-

held the superfluity of what you had not created." 35

Islam is the code of conduct that alone reveals the rights of heirs after the owner of

the land has died so that there is peace among the inheritors of land. And it is

31 Ibidem, chap. 11: verse 44 32

Supra note 29, 543 33 Ibidem. 34 Ibid. 35 Id.


prescribed in Quran that when death approaches he should make will in favor parents

and relatives equitably.36

(v) Care of Food and Food Resources

Food and food resource is being accounted for each and every grain wasted. The

continuous hike in the price and excessive storing of the grain has caused the

problem of inflation which has affected whole of India. Prophet Muhammad (PBUH)

cursed the person who hoards the food items to sell it at high rate. He says that If

anyone withholds grain for forty days thereby desiring a high price, has renounced

Allah and Allah has renounced him. Prophet Muhammad character was so refined

that he did not like wasting of food. He mentioned that-“Wasting the sustenance of

his dependent is sufficient sin for a man”.37

A believer’s faith in Islam is measured by how much conscious he is of himself and

his surroundings. A Muslim has the duty that no Muslim should sleep with an empty

stomach, Prophet Muhammad says that he does not believe in me, who eats his fill

while his neighbor beside him is hungry.

The feeling of hospitality that Islam teaches, is the immediate need of today’s world

.As Allah mentions several times in His revelation that the provision of this world is

provided by Him alone. And thus no one has right to hoard or waste his provision,

but to distribute and step towards the common good.

(B) Economic Perspective

In economic context, a business is sustainable if it has adapted its practices for the

use of renewable resources and is accountable for environmental impacts of its

activities. It deals with proper handling of finance in the world, bridging the gap

between rich and poor and decoupling economic growth with environmental

management.

Sustainable economic growth is hindered by the mismanagement wealth of the

country, the imbalance created by stagnation of wealth in the hands of few people. It

is therefore collective obligation (fardh kifayah) of an Islamic society to manage the

economy that everyone has suitable opportunity to earn an honest living in keeping

with his /her ability and effort.38

And Islam ordained a social help program to help

such people through its institution of Zakah, Sadaqat and Awkaf to fulfil their needs

without stigma and recrimination ,where the state has a complimentary role.

36 Haeri, Supra note 8, chap 2:181. Al Quran. 37 Retrieved from Supra note 18. Abu Dawud, Nasa’i. 38

al-Hashmi,M. Ali The ideal muslimah . Riyadh :International Islamic Publishing House, 285.


Islam wants to generate economy and so it favours self-employment and business

(sunnat).It forbids any body from begging, since begging degrades a person dignity.

Accordingly it is personal obligation (fardh ‘ayn) of every Muslim to support himself

and his family. Allah’s Apostle said that-“If anyone guarantees me that he will not

beg from people I will guarantee him paradise.39

Islam not only requires the removal of poverty and fulfilment of everyone’s needs,

primarily through a respectable source of earning, but also emphasizes the social

help. Allah mentions in Qur’an quality of good believer as –

“..the Virtuous are those who despite their love for it, give away their wealth to their

relatives and to orphans and the very poor ,and to traveller and those who ask[for

charity],and to set slaves free.”40

Today’s source of income has changed to interest based business, and interest or

making money from nothing, has created a great chaos in the whole world ,the great

financial recession caused in west was the cause of this interest based money, lending

house , luxurious cars and everything which a person could not afford due to his

limited income was possible due to the availability of low interest rates provide by

the banks and thus there was an imbalance created in the transaction of money, there

was disturbance in the production, consumption and income of any commodity

which was in the market. And this is the reason why Allah and His Prophet

extremely disliked interest or usury.

Allah says in Qur’an-

“Those who live on usury shall rise up before God like men whom Satan has

demented by his touch”41

Allah’s Apostle said that even though usury be much it leads in ends to penury

(extreme poverty).And this is practically seen that people and country often sink into

this crises if they deal with loan or interest based system.

(C) Social Perspective

In social context, sustainability can be expressed as healthier human relationship,

which comes under establishing the bond of kinship, and a happy and healthier

environment at home and in society for full fledge development of an individual i.e.

of the next generation .Sustainable living is only possible when there is feeling of

oneness, human brotherhood and social equality.

39 Retrieved from Supra note 18. Abu Dawud, Nasa’i. 40 Haeri, Supra note 8, chap 2: verse 177. Al Quran. 41 Ibidem, chap 2: verse 275.


Islamic philosophy of social integrity is depicted form Azaan. The muezzin (caller)

calls for prayer five times a day,‘hayya alal falah’ which means come towards

success, it calls everyone irrespective of their caste ,creed ,colour ,gender, region,

race,i.e. irrespective of any social stratification. Islam does not support social

inequality on any basis, all are equal before Islamic Law.

Allah says in Surah Al-Hujrat-

“O mankind! Verily We have created you out of male and female, and we have made

you into nations and tribes ,that you may know one another. Indeed ,the noblest of

you in sight of God is the most conscious of Him (Allah),Verily Allah is All-Knowing,

All -Aware.”42

Prophet Muhammad (PBUH) in his last sermon, on 9th

day Dhul Hijjah (month of

hajj) 10 A.H spoke to people addressing-“O people ….All mankind is from Adam

and Eve ,and Arab has no superiority over non Arab ,nor a non-Arab has any

superiority over Arab; also white has no superiority over black, and black has no

superiority over white, except by piety and good action. Learn that every Muslim is a

brother to every Muslim and that the Muslim constitutes one brotherhood.”

Social well-being in Islam relies on dignity of individual, justice, freedom, good

governance, social equality, eradication of poverty, education, marriage and

strengthening of family relationship.

(i) Dignity of Individual

The Islamic view about human beings creation, is that Allah has created man in his

own image (fitrah) .Since Allah is Good, the inheritance nature of human beings is

also good as long as they do not corrupt it. So Islam does not consider human beings

to be ‘born sinners’. The concept of born sinner is derogatory of human dignity and

is therefore, totally alien to the Islamic view. Allah says in Qur’an that-“We have

honoured mankind”. This honour has conferred on human being by calling him

khalifah or vicegerents of Allah. Therefore there must be peaceful coexistence

between them with a great deal of tolerance and mutual care to promote the

wellbeing of all through the efficient and equitable use of resources made available

to them by Allah as trust.43

And Prophet Muhammad says “Among the best of

you[are they] who have the best character.44

According to him gentleness and

righteousness are the signs of good character, which will in turn develop feeling of

brotherhood and tolerance.

42 Ibid., chap 49: verse 13. 43 Id., Chap. 57: verse 7. 44 Retrieved from Supra note 18. Muslim.


(ii) Justice

The second social perspective is justice .The goal of human dignity, self- respect,

brotherhood, social equality and the well- being of all would remain hollow concepts

if they are not buttered by socio-economic justice. Accordingly, the Quran places

justice ‘nearest to piety’45

in terms of its importance in the Islamic faith. Piety is

naturally the most important because it serves as a springboard for all rightful

actions, including justice. Establishment of justice has, therefore, been the primary

mission of all God’s Messenger46

.The Qur’an emphatically made it clear that there

can be no peace without justice. The Prophet Muhammad also condemned injustice

in very emphatic manner. He equated absence of justice with “absolute darkness on

the day of Judgement” and this darkness is reflection of nothing but injustice (Zulm).

This darkness can frustrate all efforts to realize peace, development, and social equity

and will lead to discontent conflict and decline. Injustice and Islam are contradictory,

the zulm are forms of inequality, injustice, exploitation, oppression, and wrong doing,

whereby one person hurts another. Prophet Muhammad said that Allah upholds a just

state even if it is non-believing, but does not uphold an unjust state even if it is

believing.47

Islam creates a basis for the fare and just state that can go towards

sustainable development.

(iii) Freedom

Freedom is indispensible for the development of the human personality, without

which creativity and innovation will not develop. Therefore slavery of any kind,

irrespective of whether it is social, political or economic is, therefore alien to Islam.

Accordingly, no one, not even the state, has the right to abrogate this freedom and to

subject the state ,has the right to abrogate this freedom and to subject human beings

to any kind of bondage. Hazrat Umar, the second caliph said-“Since when have you

enslaved people when their mothers gave birth to them as free individual?”

However, as khalifahs of Allah, human beings are not absolutely free in the sense of

modern world. Their freedom is bounded by moral values to ensure not just their

own well-being but also well-being of all Allah’s creature. When the angels came to

know that Allah is going to create khalifah (freedom to act on his own initiative) they

45 Haeri, Supra note 8, Chap. 5: verse 8. Al Quran. 46 Ibidem, Chap. 57: verse 25. 47

Chapra,U.M. (2012), The Islamic vision of development in the light of maqasid.

Ahmad, Ausaf (ed.) Development and islam. New Delhi, Institute of Objective Studies, 244-245.


said-“Will thou place therein one who will make mischief therein and shed

blood..”Allah said-“I know what ye know not”.48

And thus Allah provided three assets to mankind so that he can reason well. The first

these is their conscience (fitrah)reflection of true on which Allah has created him.

The second is Allah’s Guidance to all human being and nations at different times

through a chain of His Messengers. The third asset is the intellect which Allah has

provide to all human beings.

These three assets will enable human being to use his freedom wisely, to actualise

vision of sustainable development in the form of Islam without spreading corruption

or bloodshed.

The extent of freedom for a believer is lucidly explained by Hazrat Ali ( fourth

Caliph of the Islamic government),when a person asked him-“How much freedom

does a Muslim have?” He asked him to stand on his one leg and then said to move

his other leg, on the inability to do so he said-“Only this much freedom a Muslim

has” i.e a person has freedom, but with limitation. Freedom without limitation leads

to imbalance in society which is unfavourable for social development.

(iv) Good Government

Good Governance is an indispensible need of human well-being. Without political

stability and good governance, it may not be possible to enforce social rules of

behaviour. In this case ,violation of rules may tend to spread and become locked –in

through the operation of path dependence and self-reinforcing mechanisms. There

will then be rise in corruption, inefficiency and lack of concern for the satisfaction of

other people’s need. Islamic history was marked by great rulers( caliphs)-Hazrat

Umar, Hazrat Abu Bakr, Hazrat Uthman and Hazrat Ali ,during their reign Islamic

government was most stable government of the world history.

Prophet Muhammad (PBUH) said that the one who is dearest to Allah and nearest to

Him in the station on the Day of resurrection will be a just imam (ruler) and the one

who will be most hateful to Allah on the Day of Resurrection , and will be a

tyrannical imam.49

Islam does not favour the autocratic way of governance, since it

snatches the freedom of the individual and does not gives equal right to public ,to

have a say in the law proceedings, Prophet says-“the most excellent jihad is when

one speaks a true word in the presence of a tyrannical ruler.”.Islam emphasises the

importance of individual in the making a good government. Prophet Muhammad said

that people will have ruler that is their own representative or their own-“as you will

48 Haeri, Supra note 8, Chap. 2: verse 30. Al Quran. 49 Retrieved from Supra note 18.Tirmidhi.


be so will you have rulers put over you.”Islam favours a government that has people

representative, such that each people have a say in front of the government.

(v) Marriage And Family

Another indispensable source of society to live in harmony is marriage, a social

institution in which a male and female member of society live in partnership through

marriage. The purpose of this is not merely to satisfy the sexual desire but also to

have a congenial partner in life to find peace and solace in each other through mutual

care, affection and kindness. The Qur’an states-

“And among His signs is that He has created for you mates from among yourself and

sown love and compassion in your hearts so that you may find peace of mind in her.

In these, there are signs for those who reflect”.50

Married life can, however, help realise this objective only if both husband and wife

have noble character (khuluq hasan) ,are concerned about each other well- being and

are willing to make the sacrifice of self- interest .51

Such an affectionate and caring

relationship of husband and wife creates most stable unit of the society i.e. family. A

family which nurtures a human being in an atmosphere of love and compassion

creates our future generation.

In today’s world value of marriage and family is decreasing day by day, in Islam

marriage is symbolised as half faith .Prophet Muhammad said that young men, those

of you who can support a wife should marry ,for it keeps you from looking at strange

women and preserves you from immorality ,but those who cannot ,should devote

themselves to fasting ,for it is a means of suppressing sexual desire. So marriage

(nikah) is a great sunnah of Prophet Muhammad (PBUH). Marrying, respecting wife

and bringing up family with a great care and love ,specially of daughters is deeply

emphasised by Prophet .According to a hadith Prophet said that among the believers

who show most perfect faith are those who have best disposition and are kindest to

their women (mother, wife and daughter).52

So weakening of bond of marriage and kinship is most feared in Islam which has

now created a vacuum for the guidance to be provided to the future generation,

which in result has increased criminals and delinquent characters. And this is the

50 Haeri, Supra note 8 , chap. 30: verse 21. Al Quran. 51 Chapra, Supra note 47, 256. 52 Retrieved from Supra note 18.Tirmidhi.


reason that Allah hates separating of husband and wife most even if He has made it

lawful only in extreme circumstances.53

(vi) Education, Knowledge and Intellect

An eminent Indian Muslim poet Allama Iqbal has shown importance of education

and gaining knowledge in many of his poems, according to him education not only

means to develop the capability to read and write, but to develop intellectual power

such that it can create individual with strong character that reasons well. Education

serves the best purpose in building a sustainable society and thus shaping individuals

which can leaders of the world. Education is the influence exercised by adult

generation on those that are not ready for social life (future generation).

Importance of knowledge in Islam is given by the first revealed ayah of the Holy

Qur’an in the cave of Hira .

“Read! Your Lord is the Most Bountiful One who taught by the pen, taught man what

he did not know”.54

And that is why Prophet Muhammad made obligatory for a Muslim to seek

knowledge.55

According to Al-Ghazali, an Islamic philosopher, “Intellect is the

fountain head,starting point ,and foundation of knowledge .Knowledge proceed from

it just like fruit from the tree ,light from the sun ,and vision from the eye. If so then

why shouldn’t it be honoured for being the source of success in this world as well as

the Hereafter.”56

So finding the problem and their solution needs intelligence and knowledge.

However, while the intellect requires guidance faith to be of service to mankind, faith

also requires the service of intellect to maintain its dynamism, to respond

successfully to the changing socio-economic and intellectual environment, to develop

the kind of technology that can accelerate development in spite of scarcity of

resources ,and to play a crucial role in the realisation of the maqasid (goal) i.e.

sustainable development.

SUGGESTION

A long way through our paper we have been discussing about sustainable

development means to attain it, and challenges we face when we step towards

sustainability. Finally we discussed the Islamic views of sustainable development.

53 Retrieved from Supra note 18. Abu Dawud. 54 Haeri, Supra note 8, Chap. 96: verse 3-5. Al Quran. 55 Retrieved from Supra note 18.Ibn Majah. 56 Chapra, Supra note 47.267.


Discussing these we come to some conclusions that have been helpful in enhancing

sustainability. In the very beginning it has been mentioned that any country will not

improve itself until and unless its citizens are ready to change themselves.

Maulana Wahiduddin Khan, a famous Islamic scholar presented his view regarding

the progress of nation and the world-“There is only one way to make progress; ignore

the matter that divide one from other, and concentrate on cultivating areas of mutual

concern.”57

…come to common terms as between us and you…58

The following ayat

has lead us to come to some relevant conclusions:

• In the beginning we have discussed in detail the meaning of sustainable

development and education is realized as the means to attain sustainable

development. Since any form of education cannot be provided without guidance,

the light of ultimate guidance is Quran and Sunnah which is incomparable. And

a chain of Messengers (peace be upon them) were send as a means of guidance

to entire mankind. Muhammad (PBUH) said concerning knowledge that, seek

knowledge even if you have to go to China. So Islamic knowledge is not only

bound to religious knowledge but focuses on observing and discovering what has

not yet been touched, but through the divine guidance and not make misuse of

our knowledge to spread corruption. So there is need to build a sustainable

school in Islamic Ideals, which is complete in every respect and gives present

technological knowledge with soul of Islamic Ideals. So that it can create

individuals who are skilled with pure heart.

• Worldwide efforts have been made to attain sustainable development. Some

major efforts were as follows:

In 1980,when the term was introduced by IUCN, it was recommended particularly

for developing countries as a development path that would not replicate

environmental degradation that has incurred the industrialize countries.59

Later in 1987,the term was introduced by the WCED ,headed by GroHarlem

Brundtland , the Prime Minister of Norway in the report “Our Common Future”. The

report defined, “Development that meets the need of the present without

compromising the ability of future generation to meet their own needs..”.

In 1992, at Rio de Janeiro, the UNCED, known as the “Earth Summit” endorsed the

concept of sustainability and the global environment came into sharp focus.60

57 Khan, M.W. (2013, April 3), The Sacred Place. The Hindu, 12. 58 Haeri, Supra note 8, Chap. 3: verse 64. Al Quran. 59 Purvis & Grainger, Supra note 12, 4.


Much later, at Johannesburg, the World Summit on Sustainable Development was

held where water, energy, health, agriculture and biodiversity a ecosystem

management were identified as priority areas for ensuring a sustainable development

for future human kind.61

• Khurshid Ahmad’s (1978) thoughtful paper on Islamic Economics, in which he

set to himself the task of identifying the Islamic ideals of development and

formulating a strategy for realization of the ideal development. Ahmad presented

the philosophical basis of development on Islamic notions i.e Tawhid (oneness of

Allah), Rabubiyyah (Divine Providence), Khilafah (Man is God’s Vicegerent on

earth), Tazkiyah (Purification and Growth).He presented modern view of Islamic

Institution (Zakah & Waqf Institute) that would take initiative in field of

economic development , decentralization and involvement of people in the

development process,and finally vigorous efforts in research and planning.62

Islam always teaches not to waste in excess, in any circumstances even if we have in

surplus. The concept of sustainable development in Islam can be defined as the

balanced and simultaneous realization of consumer welfare, economic efficiency,

attainment of social justice, and ecological balance in the framework of an

evolutionary knowledge –based, socially interactive model defining Shuratic

process.63

So Islam does not focus on economic, valueless materialistic development

but has deep interest in welfare of all people, and believes that the structure of

development should be built within values and with ecological balance with proper

handling of the economic assets of the people.

• Islam presents the exquisite view of Qur’an and Sunnah. It strongly condemns

wasting and polluting any of resources such as; water, land,food, wealth, etc.

Water is considered as a public property in Islam and no authority has any right

over it. Land in Islam is legally distributed through heirs of the owner therefore

it stops fassad over it. Hoarding of food is considered a huge sin in Islam .This

thereby allows flow of these resources in a very natural manner which abides by

natural laws. Allah wants us to be faithful believers in Allah’s mercy and

generosity, information (knowledge) is referred to Allah consciousness and is

either discarded or energized by the inner lights of soul .Transformed beings sees

60 Dash, D. & Satapathy,M.K. (2007), Education for sustainable development: Various

perspective , University News, 4. 61 Sharma,P.D.(2007), Environment and development –India’s viewpoint. Ecology &

Environment, Rastogi publication, Meerut,368. 62 Ahmad, K. (2012), Economics development in islamic perspective revisited. Ahmad,

Supra note 47, 47. 63 Ibidem.


with eyes and insight, hears with ears ,as well as their hearts .This state becomes

torchlight in one’s hand along the dark and treacherous earthly pathways. We

use our mind and sense during our journey in life and respond to insights and

opening which are beyond definition or reason which helps us to find our real

happiness, sustainable happiness.

The aforesaid statement of M. W. Khan, says “The only way of development is to

concentrate on areas of mutual concern, and Islam is the best way to analyze these

areas. Everything we preach should be practiced. And in present context all seminars,

conferences, debates and talks should have the strong practical basis”.

Sustainable development will only be in papers if it is not practiced as it is

propagated. It is the duty of every individual to make others aware of the devastating

effect of material development and focus on the moral and ethical development of

mankind. As Islam takes man as a moral ethical being and orders all his activities

should be within the framework of morality prescribed by Islam, without ignoring

the importance of science and technology.64

There is an intense need to understand

the basic concept of Islam which has been disgustingly misinterpreted by media, and

has created a distorted image of Islam and Muslims. Since Islamic values are such

that whole world can benefit from it, and Islam presents free will of a person to

accept Islam as his religion-Let there be no compulsion in religion. Truth stands out

clear from error…”65

“Whoever is willing may remember Him”66

Allah has said that He has not send this religion only to Arabs but to the whole world

through his Messenger Prophet Muhammad (PBUH) and entitled him ‘Messenger for

whole world’67

.

This message should reach to the whole world, and for this everyone has the right to

know, what he doesn’t know, what he needs to know, who the creator is ,why he created

this world and what are the consequence of good and bad done within self and society.

Certainly, this discussion was not on which religion to follow to reach sustainable

development but on denial of the existence of our Supreme Creator, God. Due to which

we human beings have become fearless and uncontrollable, this control is possible only

by the fear of being examined before the Creator of the worlds (an ultimate truth).

64

Alam,Z. (1991), A study of the islamic concept of education in the light of its concept

of man & society, 70. A Ph.D Thesis, submitted in Aligarh Muslim University. 65 Haeri, Supra note 8, Chap. 2: verse 256. Al Quran. 66 Ibidem, chap. 80: verse 12. 67 Ibid., chap. 21: verse 101.

Sustainable Development in the light of Islam

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