Author: Prashanti Upadhyaya

LLM, Law College Dehradun, Arcadia Grant P.O. Chandanwari,

Effects of tax competition in today’s world

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Prashanti Upadhyaya

 

Tax Competition identifies with the wonder where a sovereign state having the capacity and fitness tends to influence the assessment arrangement of another nation deliberately or inadvertently by joining different duty differentials in its household impose framework.

 

INTRODUCTION

 

How Can A Tax  Competition Be Harmful?

 

Tax Competition identifies with the marvel where a sovereign state having the capacity and fitness tends to influence the expense arrangement of another nation deliberately or inadvertently by consolidating different assessment differentials in its residential duty framework. At the point when Such Differentials are an aftereffect of purposeful (malafide) activities with a specific end goal to twist and dissolve impose arrangement of different nations are alluded to as Harmful Tax Practices.

 

The activity to control such unsafe assessment rivalry has been taken beforehand by numerous Nations, mutually and by consolidating degree in their household charge framework, in order to profit them by giving a Level Playing Field.

 

Organisation for Economic Co-Operation and Development (OECD) through its Report[1]-unsafe Tax Competition in 1998 which was embraced by G7 Countries additionally (The Report), European Union had likewise received measures[2] to handle such rivalry on December first, 1997 by means of Report-A bundle to handle destructive duty rivalry in the European Union, etc, are a couple of illustrations which pass on the pith that Harmful Tax Competition is mutilating charge frameworks of countries as well as the speculation patters, future projections, exchange and accidental exercises.

 

OECD-Tackling Tax Competition

 

The Convention as marked on December fourteenth, 1960 in Paris in its I Article presents duty on OECD to advance arrangements planned in a path in order to vanquish high manageable financial development and battle joblessness, advance sound monetary extension and convey extension of exchange all inclusive on a multilateral stage.

 

In 1996 Ministers called upon OECD to battle and settle the misshaping results and impacts of destructive assessment rivalry by 1998 a report the same, along these lines a report was readied titled-Harmful Tax Competition an Emerging Global Issue which was endorsed on April ninth, 1998.

 

The Report has tended to issues identifying with unsafe expense rehearse in type of Tax Havens[3], Preferential Tax Regimes in part and in addition non-part nations and has likewise given measures to the same. It significantly centers around topographically versatile exercises. The far reaching highlights as given in the report which should shape out the destructive locale are in ordered under 19 suggestions.

 

The Report outlines how Tax Haven and Harmful Preferential Tax administrations, all in all called Harmful Tax Practices influence the accompanying:

 

¼ Location of Geographically Mobile Activities particularly managing money

 

¼ Erode Tax Bases[4] of Other Country

 

¼ Distort exchange and Investment projections

 

¼ Threatens reasonableness, lack of bias alongside wide Socio acknowledgment of assessment framework by and large.

 

In the event that such rivalry isn’t removed it might undermine worldwide welfare and break citizen’s certainty.

 

European Union’s Package To Tackle Tax Competition

 

Work, like that of OECD was completed in European Union (EU) and on December first, 1997 certain measures were embraced to neutralize Harmful Tax Competition keeping in mind the end goal to help and evacuate distortionary drifts in single market, misfortunes of potential duty income and to re-build up charge structure in a business arranged way.

 

A bundle to handle destructive duty rivalry in the European Union Provides for Code of Conduct for following parts of economy:

 

¼ Business Taxation.

 

¼ Taxation on reserve funds.

 

¼ Issue of holding charges on cross-outskirt interests and installment of eminence between Nations.

 

Ultimate Rescue

 

At each purpose of time where a Nation or gathering of Nations has however of handling charge rivalry following have been the fundamental constituents shaping the basic base of the report:-

 

¼ Principles representing current plans identifying with International Taxation.

 

¼ Factors, which might find a current ward to be Tax Haven or Harmful Preferential Tax Haven.

 

¼ Measures to Counteract such mischief.

 

Differential Taxing – Hampering Tax Competition

 

Historical Tax Approach

 

Generally, assess strategies and frameworks were created taking a gander at the need at household level and undertaking financial concerns which has additionally obliged different components.

 

While home expense frameworks of basically shut economies likewise had a worldwide side where they possibly influenced the gross assessment sum forced on outside source pay of inhabitant citizens and regularly incorporated into the duty base the local pay of non-occupants, the association of household charge frameworks was nearly unimportant, given the restricted move of capital.[5] The rate of assessment whether to be set as low or high, or finding out o government spending or open expense was reliant, absolutely, based on Nation’s worry and residential issue. Universal impacts were by and large restricted.

 

Situation Post Globalization

 

Post globalization the need to change impose frameworks was figured it out. Resulting to Multinational Enterprises going into worldwide markets a desperate need to re-build up charge strategies was felt in order to defend inhabitant citizen and keep enthusiasm of speculators protected.

 

As the capital markets began broadening and development occurred capital stream was restricted to one ward as well as it met upgraded cross fringe flows. Globalisation was soon acknowledged to have gotten negative impacts. It has acquainted a few routes with limit assess obligation by giving open doors which were anything but difficult to abuse and furthermore occupied fund, exchange, and so forth.

 

Substances took tremendous advantage of free riders[6]. Substances settled their organizations in duty safe houses or special administrations; paid no or low rate of expense. At the same time, same elements additionally received the reward of foundation and utilities at home nation, free of cost.

 

Assessment Competition was not seen as a negative impact till the time a nation was creating adequate income from its duty base, however numerous nations observed it to be horrible and along these lines requested changes.

 

Indeed, even certain unintended bungle occurred where a Nation without intentionally however due its local strategies or keeping in mind the end goal to produce business or different components which impact portability of exercises, crushed other duty frameworks by disintegrating their expense base.

 

Not at all like the above situation, numerous nations needed to divert money related stream (capital) and pull in incomes from different administrations by twisting their assessment base, same has been referred to as poaching of expense bases.

 

The report has set down six courses (significantly) by which nations understood the capability of making impact different purviews.

 

Potential mischief to Tax Bases of other Jurisdiction :-

 

Disturbing budgetary and along these lines influencing genuine speculation flows[7];
Distorting respectability and decency of duty Systems;
Discouraging Tax compliances;
Re-forming the coveted level and blend of charges and open spending;
Making undesired movements of part of the gross taxation rate to less versatile duty bases, for example, work, property and utilization; and
Increasing managerial expenses and consistence troubles on impose specialists and citizens.
Avocation of source nation taxation[8] is debated when identified with unsafe assessment hones. Occupant nations can in any case change their expense strategies to reduce negative impacts of monetary conduct which specifically influence the outside elements or non-inhabitants, all things considered, profiting by such hurtful practice administrations.

 

It has been watched that a few financial specialists have a tendency to put resources into a ward where rate of duty is low dismissing administrations being offered by the State though; then again a couple of speculators incline toward venture to places where better administrations are being offered regardless of whether the expense rates are higher. Along these lines, decision of area isn’t a resultant of duty astute purview however different factors too which this report has not considered.

 

For instance, FDI by G7 nations in different wards in the Caribbean and in the South Pacific island states, which are known to be low-impose purviews, progressed toward becoming multi-crease over the period 1985-1994, to more than $200 billion, a rate of increment well in abundance of the development of aggregate outbound FDI.

Accordingly, mutilation in capital and money related streams must be checked in order to make a solid assessment rivalry which would mean area of versatile action or move of such action considering any factor however not tax collection for setting up business.

 

Diagnosing Harmful Tax Jurisdictions

 

This section manages factors that assistance in distinguishing Harmful Preferential Tax Regimes and Tax Heavens in part and non-part nations.

 

Following are particular three classes of circumstances where substances translocate in the wake of considering charge rates in a particular ward:

 

First nation being a Tax Haven[9]; forcing no or a low rate of assessment
Country having Preferential Tax Regime for certain action
Where a relative lower rate of duty could be found
Globalization didn’t just leave a negative effect yet has likewise prompt positive outcomes. It has influenced nations to change their assessment frameworks and lower the duty rates to diminish the expense based twists.

 

Refinement can be made between purviews where they can back their open utilities with ostensible pay duties and offer themselves as spots to set up business by non-occupants to escape assess in home nation, and then again, nations which take adequate income from charges yet whose duty gauges look like unsafe expense rivalry.

 

In the main case, such locales won’t consent to balancing charge hurtfulness yet in the later case nation may concur because of danger of unsafe duty rivalry.

 

Tax Havens

Tax Havens are those Jurisdictions or remote sovereign where there is a permissive and much adaptable managerial strategy with respect to impose compliances notwithstanding no or an ostensible rate of duty. Such Countries offer impetuses to non-inhabitants and are likewise not subject to trade of Information because of fuse of strict bank mystery arrangements.

 

A Tax Haven fills different needs. Assessment Havens construct themselves in light of current worldwide budgetary framework and have encouraged capital stream at first at initiation. They had additionally enhanced the liquidity segment of worldwide budgetary market.

 

Reason

Following reasons for existing are served by a Tax Haven to non-occupants and inhabitant citizens;

 

¼ Holds detached speculations

 

¼ Provides an area where paper benefits can be reserved

 

¼ Provides a compelling shield from examination by impose specialists

 

Whatever reason a duty safe house may serve it is eventually causing obliteration of expense frameworks of other assessment purviews. It prompts tax avoidance and expense shirking which eliminates a nation’s potential income.

 

Now and again nations going about as duty asylums don’t mean to indicate case their picture as one in order to qualify the “Notoriety Test.”[10]

 

Distinguishing Tax Haven Jurisdictions

 

Important beginning stage to learn if a purview is expense sanctuary or not can be seen by the rate of duty it forces took after by the straightforwardness in advertisement clerical methodology, extent of trade of data of citizens and nonappearance of necessity of action to be significant. Every last bit of it infer that a nation is endeavoring to get speculations and such exchanges are regarded to be charge driven.

 

No or Nominal Tax Rate

 

No or ostensible (careless) some portion of the gross wage which is important for tax assessment is charged to be the expense, it is the underlying advance to discover about a locale to be impose driven and in this manner, duty sanctuary.

 

Nonappearance of powerful data trade

 

A little advance can be found here. A few expense locales have gone into access to data assentions when the issue relates to criminal or non charge administration. Yet, the classification as guaranteed to non-occupant to no reason damage to him if other assessment specialist request access to his data is as yet kept up.

 

Non-Transparency

 

Procedural and organization mystery encourages a financial specialist to evade compliances and spares himself from investigation of other assessment framework as, duty shelters keep up non-straightforwardness in connection to citizens data.

 

No significant exercises

 

Assessment shelter by and large pulls in speculations which are charge driven. There is no other calculate taken to thought likewise, there is no commercio-legitimate condition gave to the financial specialist. Significant speculations can be seen through Paper Companies which book paper benefits and no genuine ventures can be seen.

 

Different elements

A few different factors other than impose factors; a casual and adaptable administrative system and the presence of a strong corporate framework, which add to the achievement of an assessment haven. Benefit of an expense shelter is significantly procured by non inhabitants from non duty safe house locale, along these lines getting a charge out of the life of a Free Rider.

 

Harmful Preferential Tax Regime

Such an administration can be followed from the general assessment code, or the regulatory practices conveyed by that ward, or type of arrangement whether outlined basically as exceptional expense or non-charge enactment.

Benefits in destructive particular duty administrations are significantly from latent speculations than dynamic. With help of such locales fruitful remobilisation of exercises should be possible for which request or supply has become scarce in have nation’s household advertise.

 

Distinguishing Harmful Preferential Tax Regimes

Expense particular administrations are set up so as to draw in exceedingly portable and other budgetary administrations. These locales give a stage to citizens to hold detached ventures and record for paper benefits.

 

No or low successful assessment rates

Discoveries in the matter of whether a ward is carrying on hurtful duty hone, especially special administrations start from no or low expense rates. Since such a nation keep its timetable rates low in planned arrangements, a zero or low successful duty rates can be seen. Along these lines, to distinguish a destructive particular duty administration a blend of zero or low rates of assessment is a beginning stage.

 

Ring fencing

Ring fencing[11] of administrations ensure supporting nation or non occupants of that nation a lower rate of duty over secured speculations yet then again make antagonistic effect on the expense framework and income of non-inhabitant citizen’s nation i.e. outside assessment base.

 

Ring fencing has a measurement of causing unsafe overflow impacts. It might be found in following structures.

 

Circumstances of Ring Fencing

 

A locale may by express or verifiable way expel occupant citizen from taking advantages of such administration.
Entities profiting from such duty wards might be banished from working and doing business in residential markets.
Absence of straight forwardness

Absence of straightforwardness restricts home nation to take careful steps. Non straight forwardness can be found out by taking a gander at the organization feasibility, positive regulatory decisions and monetary condition is of a nature that local enactments of the concerned purview are not tuned in to for the most part acknowledged worldwide standards.

 

Absence of powerful exchange of data

Refusing trade of data under the clothing of mystery laws, protection and different variables; proposing to profit the non occupant citizens is likewise a factor to find destructive special assessment framework.

 

Other factors

Non sensible meaning of expense base in this manner including unrestricted arrangements into assess strategies, non adherence of universal exchange estimating standards by which organizations don’t exact a safe distance cost in intra-exchanges, wards exempting remote source salary from tax collection at the nation of origin is likewise a danger, advancement of administration as a duty minimisation vehicle and finally all exchanges, activities that happen are significantly impose driven.

 

Figuring Economic Effect of Preferential Tax Regime and the Potential Harm

 

Governments are in an issue whether to offer assessment motivations or not all that that they may not be ordered under locale offering hurtful expense rehearses. OECD report of 1998 terms it to be “Detainee’s Dilemma” as they are constrained to offer motivators in order to be a piece of rivalry, all around.

Following inquiries should help in learning the potential mischief such administration can cause:

 

Regardless of whether the administration, move action from one nation to other special assessment administration and not creates adequate new action? Since venture can be looked for by pulling in funds and in addition migrating center business. In this manner, it is to watch that if a generous new action is produced or is it a negligible move of reserve funds to mutilate other assessment wards.
Regardless of whether the presence and level of activities in the nation of origin are in extent to measure of venture? On the off chance that the level of movement in home nation is unbalanced to wage created or ventures made, it connotes presence of an unsafe special expense administration.
Regardless of whether the ward is essential inspiration for area of action? On the off chance that that is the situation such administration may cause hurt and mutilate other assessment frameworks. Despite the fact that there are different factors too which help in choosing area of efficient sound framework, enactments, political condition, accessibility of crude materials and so forth.
 

 

 

 

Tackling Harmful Tax Competition

 

Government can’t kick back and take a gander at different locales disintegrating their assessment framework and mutilating their incomes from real or potential wage of occupants. A blend of measures is being embraced singularly, by method for bargains and on a multilateral stage to check such destructive rivalry.

 

The OECD report significantly elevates the multilateral way to deal with be embraced as one-sided/two-sided approaches experience the ill effects of different inadequacies like the accompanying:

 

¼ Limited extent of assessment ward

 

¼ Safeguard privileges of its native in this manner not burdening source salary from particular administration

 

¼ Higher authoritative expenses

 

¼ Uncoordinated one-sided steps builds consistence cost which is at last troubled upon the citizens.

 

Taking a gander at the above decision a co-ordinated activity is required. Since, the wards have their sway the report additionally gives respective (bargain) and one-sided measures to be joined in local assessment laws however prescribes multilateral measures.

 

OECD in its report has given nineteen Recommendations so as to neutralize hurtful duty rehearses. The suggestions are comprehensively isolated under the accompanying heads:

 

Proposals for Domestic Law
Proposals for Tax Treaties
Heightening of universal participation
The above proposals have following point:

¼ To urge administrations to shun destructive expense hones

¼ Offset advantage for citizens of specific structures

¼ Erode tax avoidance and assessment evasion.

 

Assessment rivalry subsists in different structures and its seriousness of hurtfulness likewise varies. Taking a gander at the level of mischief it might cause, fitting measures should be picked. For instance; a locale advancing tax avoidance and influencing different administrations by keeping mystery of data is unquestionably a destructive expense ward. It can be diverged from a nation where assess rates are low yet the organization is very straightforward so the potential mischief is noiseless.

 

On account of Tax sanctuaries the concentration ought to be barrier situated went for forbidding unsafe impacts, a multilateral composed way to deal with handle impose rivalry may fill in as a hindrance for potential administrations intending to make such a sanctuary.

 

Recommendations

 

I.      For Domestic Legislations And Operations

 

a)      Proposal concerning Controlled Foreign Corporations (CFC) or proportionate rules[12]

 

Under CFC controls a piece of the aggregate pay is obligated to be exhausted as of now in the hands of the occupant investors. Such standards dispense with the advantage of deferral of local assessment on major remote source wage of a CFC.

 

Nations not having rules with respect to CFC must join it in their enactments and those which have such arrangements need to change them and match worldwide measures. Such principles ought to be connected to all exchanges in the case of emerging from unsafe administrations or not.

 

b)      Proposal concerning remote venture finance (FIF) or comparable rules[13]

 

A few nations create FIF to supplement CFC though in different nations it is a considerably more extensive idea and the expectation is to wipe out the advantage of deferral for in a perfect world every uninvolved interest in remote corporate or elements.

 

CFC approaches which subject the Foreign Corporate’s wage to current assessment apply just to outside enterprises controlled by inhabitant investors that claim a critical enthusiasm for it. In this way, occupants may concede home (residential) charge by putting resources into offers of remote shared assets. On the off chance that such subsidizes are broadly possessed, surely won’t be controlled by predetermined number of occupant investors; nor will any one inhabitant investor claim a huge bit in gathered pledges.

 

In this way, proprietors of outside common assets won’t be liable to the counter mishandle arrangements managed by occupant nations’ CFC enactments. To overlook such circumstance, nations have received outside venture support (FIF) or identical principles.

 

c)      Suggestion concerning confinements on cooperation exception and different frameworks of exempting remote salary with regards to unsafe assessment competition[14]

 

Nations which absolved outside source salary under any of the twofold tax assessment circumstances must keep a check over the element and the source nation in the event that it is a hurtful expense administration; in the event that the source nation is a destructive duty ward such exclusion might stop to exist for the citizen.

Nations must outline conceivable least limitations considering factors like:

¼ Jurisdiction from which outside salary starts

¼ Type of pay; order

¼ The rate of expense to which the salary has been subjected to in the outside nation.

 

d)      Proposal concerning remote data revealing rules[15]

 

Proposal that nations should make a room in their approaches and framework where data identifying with an element in regards to different noteworthy exchanges, property held, and so on can be gotten to by the nation of origin for better investigation and discovering of assessment obligation.

 

The same has been protested by different countries calling it a break of native’s protection rights or repudiating nearby laws which has been basically investigated in the conclusion and proposals.

 

e)      Suggestion concerning rulings[16]

 

Nonappearance of subtle elements identifying with regulatory practices which give citizen’s status, specifically on issues, for example, the ALP of specific administrations or the distribution of benefits or misfortunes between related undertakings, makes an assessment framework non-straightforward. Distribution, in a way that secures citizen privacy, of the substantive and procedural conditions for allowing or denying singular assessment decisions and guarantees a more noteworthy straightforwardness of nations charge approaches and is basic to the use of measures to avoid hurtful expense rivalry.

 

f)        Suggestion concerning exchange estimating rules[17]

 

A nation may go astray to adhere to exchange evaluating rules and may give profit of a safe distance cost to players and speculators, hence influencing its purview to impose favored. Such activity positively constitutes unsafe expense rivalry. Proposal recommends strict adherence to 1995 guidelines[18] to handle confounds and take after a safe distance evaluating.

 

Proposal concerning access to managing an account data for charge purposes.[19]

 

Absence of bank data of a citizen, now and again, posture genuine obstacle for surveying nation to shape out reasonableness of records exhibited before it. Access to such data can prompt expulsion of mutilation and disturbance caused by destructive duty administrations. This would ensure charge bases and frameworks as well as supplement Recommendation no. 4.2.3[20]

 

 

II.      Recommendations For Tax Treaties

The initial four recommendations (4.3.1-4.3.4) area unit inter-related and should be scan along to draw supposed that means.

 

a)      Recommendation regarding larger and a lot of economical use of exchanges of information[21]

Information touching on foreign transactions and tax payers is from time to time important to fight impact of harmful tax practices, however identical is incredibly troublesome to get. Treaties ought to promote provisions for exchange of knowledge per se revealing shall facilitate in refraining from tax harmful regimes.

 

b)      Recommendation regarding the claim to pact benefits[22]

Regimes providing advantageous tax treatment read development of their network as  quality and lengthen from third country by distorting their assets.

Various methodologies are adopted by countries to scale back the on top of risk. In some cases, countries are ready to verify that the place of effective management of a subsidiary lies within the State of the parent company thus on create it a resident of that country either for domestic law or pact functions. In different cases, it’s been attainable to argue, on the idea of the facts and circumstances of the cases, that a subsidiary was managed by the parent company in such the simplest way that the subsidiary had a permanent institution within the country of residence of the parent company thus on be ready to attribute profits of the subsidiary to it latter country. Another example involves denying corporations with no real economic perform pact edges as a result of these corporations aren’t thought of as useful owner of sure financial gain formally attributed to them.

 

c)      Recommendation regarding the clarification of the standing of domestic anti-abuse rules and doctrines in tax treaties[23]

Domestic taxation laws embody varied anti- abuse rules and doctrines that area unit wont to tackle harmful tax practices. Tax treaties usually incorporate a couple of specific anti- abuse policies thus a dispute arises to validity of doctrines existing in domestic taxation. Thus, whether or not a profit taboo to a domestic remunerator is availed by a national having foreign supply financial gain could be a matter of concern.

 

The Model Tax Convention doesn’t throw light-weight on varied anti-abuse provisions existing at domestic level. Thus, it’d be acceptable to supply that tax treaties to include application of such rules in their draft.

The Recommendation is to the impact to get rid of any ambiguity relating to the competency of domestic anti-abuse measures with the Model Tax Convention.

 

d)     Recommendation regarding an inventory of specific exclusion provisions found in treaties[24]

Various treaties expressly give for exclusion of sure forms of incomes and deny sure entities the tax edges otherwise obtainable. Such list of exclusion differs among countries. Countries shall adopt a typical list of such exclusion thus on keep the principle of fairness and equality intact.

 

e)      Recommendation regarding tax treaties with tax havens[25]

This recommendation is to the impact that countries having pact signed with tax havens or jurisdiction motion a threat to tax competition, be terminated. this could cause political disturbances, however ultimately the impact are credibleness once different jurisdiction decides to sign out from the pact. Factors arranged  down in previous chapter that illustrates a way to reach to the conclusion whether or not a jurisdiction is country or not.

 

f)       Recommendation regarding co-ordinated social control regimes[26]

Several countries have developed joint audit programs that entails each the foreign supply country moreover because the domestic country to audit the business and monetary performance of the tax money dealer thus on curb nonpayment and dodging.

This form of co-operation ought to be intense since such audit programmes will facilitate deliver the goods needed objective. Similarly, relevant co-operation between burdensome bodies also are possible to be effective in up international tax adherence.

For example, the international particulars of a country’s legal system area unit usually the foremost technical and sophisticated aspects. it’s continually unacceptable for tax authorities to make sure that their cross- border audit staffs possesses the requisite skills to touch upon the problems adequately. Joint coaching activities on basic topics like; pact problems, audit ways, refined transactions, transfer valuation, the look and implementation of CFC and FIF rules etc. might improve administration by disseminative flourishing audit practices and by promoting nearer contacts between tax inspectors managing international transactions.

The Recommendation is aimed toward additional developing collaboration therein respect.

 

g)      Recommendation regarding help in recovery of tax claims[27]

The need for social control of tax claims of different countries ought to be realized to the earliest thus on forestall nonpayment. additional territorial tax claims, lack of reciprocal guarantees and procedural fairness area unit a couple of factors that result in failure in recovery of tax claims. Thus, countries ought to encourage social control of cross- border tax claim and reform the present legal system.

 

Exacerbating International Cooperation To Counteract Harmful Tax Competition

 

a)      Recommendation for pointers and a Forum on Harmful Tax Practices[28]

Under this recommendation varied pointers area unit provided viewing this situation to curb the harmful impact of Tax Competition and institution of a forum to deal with the problems that distort taxation patter and vitiates any domestic legal system. Following area unit the guidelines:

 

Countries ought to refrain to adopt any live concerning taxation, or enlargement of scope, strengthening of existing measures that represent harmful tax observe.
Countries area unit suggested to review their current tax laws and body procedures and conclude if any harmful tax observe prevails. Same is to be rumored to the OECD forum at intervals two years from date of approval of the report.
All such harmful tax practices that area unit found out or that area unit provided in previous chapter area unit to be aloof from the several policies, legislations and stand null/ void post termination of five years from the date of approval of the OECD report.
Any member country of OECD, if finds, their legal system lack any of the live to tackle harmful tax practices or would like to advocate a brand new live shall incorporate such measures and advocate potential measures to the forum.
Countries to co-ordinate through forum on the responses and ways in which to counteract harmful tax practices.
The forum ought to conjointly encourage non- members countries to adopt such measures.
b)      Recommendation to supply an inventory of tax havens[29]

The forum, at intervals one year from its beginning shall prepare an inventory of tax havens and different harmful tax regimes by examining the jurisdictions and exploring by all necessary suggests that. Same shall facilitate among the member countries to once more revise and reform their policies if found to be deficient.

 

c)      Recommendation regarding links with tax havens[30]

Countries having explicit political, economic or different links with country jurisdiction make sure that these links don’t contribute to harmful tax competition. Also, it’s to be seen that countries that have dependencies that area unit tax havens make sure that the links that they need with these tax havens aren’t employed in the simplest way that increase or promote harmful tax competition.

 

Such relation or ties mustn’t be wont to assist the relevant countries or dependencies in partaking in harmful tax competition. it’s additional suggested that countries that have aforesaid relations ought to contemplate reformation and aspect away harmful tax competition ensuing from the existence of those tax havens.

 

 

 

 

 

d)      Recommendation to develop and actively promote Principles of fine Tax Administration[31]

Major recommendation depends upon this recommendation. As per the report sensible administration principles[32] gelled with transparency and paired with different principles of governance will solely promote the aim taken off in Paris convention and objective of OECD is obtained.

 

e)      Recommendation on associating non-member countries with the Recommendation[33]

Forum to be unconditional with the responsibility to own dialogue with non- member countries thus on curb the displacements of activities and restrain them from such harmful tax practices as area unit prevailing. Such recommendation is to the impact that a assets will solely be safeguarded if the action to stop the tax bases from being distorted a three-cornered approach could be a should.

 

Other Counteractions

Restriction of deduction of payment to country jurisdictions, imposing of withholding taxes on sure payments to residents of states engaged in harmful tax observe, residence rule[34], application of transfer valuation rules and pointers, skinny capitalisation and monetary innovation and several other non- tax measures.

 

 

 

 

 

 

 

 

 

 

 

 

 

CRITICAL APPRAISAL AND CONCLUSION

 

The major loopholes and sure unconditional provisions incorporated by the 1998 OECD report are drawn out beneath this chapter. the subsequent chapter is split into two elements the primary half magnifies the appraisal followed by conclusion which contains country’s perspective towards the OECD report.

 

v  Information Sharing -A Threat

Countries concern exchange of data[35] or access to their citizen’s information once given to different authorities lying outside their jurisdiction. To counteract such concern, countries pass on secrecy and confidentiality thereby providing guarantee to their national (banks to their Clients) of non- revealing. Such An action will solely by means of court of law or subject to the other law for the nowadays operative.

 

v  Right to Privacy [36]

Right to privacy has been taken as basic right by varied nations; a couple of Nation contemplate it to be a constitutional right. broadly speaking it’s a right unconditional in a very person thus on guarantee right to life viewing the factors to spot harmful tax regimes OECD went right down to recommending varied measures that area unit a breach of right to privacy if contrasted with domestic legislation. Such nation might not be a harmful tax regime however non- revealing of knowledge shall raise a doubt against that regime.

 

v  Prevalent Mode to draw in Investment [37]– Prisoners quandary

Majorly, tax incentives play as a magnet for many of the countries to draw in foreign business for varied functions like developing infrastructure, widen scope of employment etc. Thus, tax driven investments can’t be taboo by a blanket resolution.

 

 

 

v  Economic difference[38] between Developed And different Economies

Self sufficient economies willing to erode tax competition might not suffer from lack of development or shortage of liquid cash or investments. For identical reason they’ll agree on recommendations provided by OECD Report of 1998 however just in case of beneath developed economy or developing economy it’s going to cause a retardant as fund generation and their development, to a serious extent is proscribed to foreign investments attracted presently by means of tax incentives.

 

v  Rivalry A Positive Way to Tackle

 

The main determinant and control which is self administrative is a solid competition[39]. Rivalry, if found in a long run has a tendency to cut down misshaping impact and keeps the rate of expenses, fund, and business low (or controlled) because of quality of players and roads around the world.

Rivalry itself being a measure to check unsafe practices not the slightest bit ought to be ruined by formation of settlements or adopting a multilateral strategy as suggested by the Report.

 

v  Constrained Scope – Tax Jurisdiction

 

Regardless of whether a nation receives the proposals, its purview might stay constrained. Straightforwardness or expansion of ward can’t make due for long, experiencing the worldwide question, which has been demonstrated.

 

v  Non Tax Factors Not Taken Into Account

 

The OECD report considers just the assessment factors and don’t discover a place for non-impose factors which ruins the sacredness of the suggestions gave.

 

Wage rates, assess rates, work aptitudes, transport and foundation, Size of economy/potential for development, Political security/property rights, products, trade rates, bunching impacts, access to facilitated commerce zone are a couple of non-impose factors which may pull in venture into a low rate charge administration which would not suggest presence of a destructive expense regime.[40]

 

 

CONCLUSION

 

Work carried out by OECD to unsafe expense hones don’t consider the situation of creating and immature nations. Taking a gander at the ambiguity and unrestricted methodologies embraced by OECD for its part nations no certification to check the hurtful expense hone and a worldwide welfare, can be drawn.

 

The OECD report provides food predominantly the enthusiasm of its part nations and isn’t slanted towards removing worldwide inequalities.[41] It likewise neglects to make a harmony amongst advancement and rivalry. The belief system behind these suggestions demonstrates that the part nations tend to shape an illusionary cartel which might administer the worldwide administration by a solitary duty rate.[42] Such charge rate may ascend to extreme level because of nonappearance of rivalry in the market.

 

The elements gave by the OECD to find out duty asylums and hurtful particular expense administrations are not sufficiently useful to kill the issue of assessment shirking or tax avoidance. Every one of the variables are outlined in a path to keep welfare of part nations in place and at premier need.

 

All around, a more skilled component is required to handle the issues of twofold tax assessment, impose shirking and tax avoidance. The suggestions set out in the report for no situation make an agreement amongst advancement and checking unsafe expense rehearses. Techniques like living arrangement run, where any wage created to be burdened in the nation of origin, however flopped yet was a superior method to handle if contrasted with the multilateral approach of the OECD.

 

BIBLIOGRAPHY

Books

Angharad Miller and Lynne Oats, Principles of International Taxation, Tottel Publishing, 2006 (E-Book)
Andrea Amatucci, International Tax Law, Kluwer Law International
Tax Planning with Holding Companies, Repatriation of US profits from Europe, Kluwer Law International, Rolf Eicke
Black’s Law Dictionary, 8thEd., Bryan A. Garner
nternational Law in Relation to Double Taxation of Income, Lexis Nexis, Butterworths, IP Gupta
OECD Documents

OECD 1998 Report – Harmful tax competition; An emerging global issue Available at: www.oecd.org/dataoecd/33/1/1904184.pdf
OECD 2000 Report Available at: www.oecd.org/dataoecd/9/61/2090192.pdf
OECD 2001 Report Available at: www.oecd.org/dataoecd/60/28/2664438.pdf
OECD 2004 Report Available at: www.oecd.org/dataoecd/60/33/30901115.pdf
Business and Industrial Advisory Committee to OECD, A Business View On Tax Competition, June 1999 Available at: www.biac.org/statements/tax/htc.pdfBIAC
OECD Revenue Statistics-Comparative tables Available at: www.stats.oecd.org/wbos/Default.aspx?usercontext=sourceoecd
 

Journals And Articles

Alexander Townsend Jr., The Global Schoolyard Bully: The Organisation Of Economic Development’s coercive efforts to control tax competition, 25 Fordham Int’l L.J 215 (2001-2002)
Michael Littlewood, Tax competition: Harmful to whom?, 26 Mich. J. Int’l L. 411 (2004-2005)
Mitchel B. Weiss, International Tax Competition; An efficient or inefficient phenomenon, 16 Akron J. 99 (2001)
Javier G. Salinas, The OECD tax competition initiative: A critique of its merits in the global market place, 25 Hous. J. Int’l L. 531 (2002-2003)
Kimberley Carlson, When Cows have wings: An analysis of OECD’s tax haven work as it relates to Globalization, Sovereignty and Privacy, 35 J. Marshall L. Rev. 163 (2001-2002)
Julie Roin, Competition and evasion: Another perspective on International tax competition, 89 Geo L.J 543 (2000-2001)
Yoram Margolith, Tax competition, foreign direct investment and growth: Using tax system in promoting developing countries, 23 Va. Tax Rev. 161 (2003-2004)
Almeida, Tax Havens: An Analysis of the OECD work with policy recommendations, available at: www.receita.fazenda.gov.br/Publico/estudotributarios/TrabAcademicos/Textos/AloisioTaxHavens.pdf
Chris Edwards and Veronique de Rugy, Chapter 3, Economic Freedom Of World: 2002 Annual Report
For further reference and to seek clarity on recommendation provided under the Report  have referred following documents:

 

Relevant Oecd Reports And Guidelines
Publications Related To National Tax Law
·         Controlled Foreign Company Legislation: Studies in Taxation of Foreign Source Income (1996)

·         Combating Bribery of Foreign Public Officials in International Transactions: The Role of Taxation (1996)

Publications Related To Tax Treaties
·         OECD Model Tax Convention (issued in loose-leaf format in 1992, updated in 1994, 1995 and 1997)

·         The Tax Treatment of Employees’ Contributions to Foreign Pension Schemes (1992)

·         Triangular Cases (1992)

·         The Tax Treatment of Software (1992)

·         The 183 Day Rule: Some Problems of Application and Interpretation (1991)

·         The Taxation of Income Derived from Entertainment, Artistic and Sporting Activities (1987)

·         International Tax Avoidance and Evasion: Four Related Studies (1987)

·         Thin Capitalization (1986)

·         The Taxation of Income from the Leasing of Containers (1983)

·         The Taxation of Income Derived from the Leasing of Industrial, Commercial or Scientific Equipment (1983)

Publications Related To Transfer Pricing
·         Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations (1995)

·         Attribution of Income to Permanent Establishments (1993)

·         Transfer Pricing, Corresponding Adjustments and the Mutual Agreement Procedure (1982)

 

 

Publications Related To The Exchange Of Information
·         The Use of Tax Payer Identification Numbers in an International Context (1997)

·         OECD Manual on the Implementation of Exchange of Information Provisions For Tax Purposes (1994)

·         Tax Information Exchange Between OECD Member Countries: A Survey of Current Practices (1994)

·         The OECD Model Agreement for Simultaneous Exchanges of Tax Information (1992)

·         The Revised Standard Magnetic Format (1992)

·         OECD Standardised Form and Magnetic Standard for Automatic Exchange of Information (1992)

·         Taxpayers Rights and Obligations: A Survey of the Legal Situation in OECD Member Countries (1990)

·         The Joint Council of Europe OECD Convention on Mutual Assistance in Tax Matters (1988)

·         Model Convention for Administrative Assistance in the Recovery of Tax Claims (1981).

 

 

[1] Available at : http://www.uniset.ca/microstates/oecd_44430243.pdf; Downloaded on May 5th, 2018 at     1:00 PM

[2] Available at: http://aei.pitt.edu/3494/1/3494.pdf; Downloaded on May 7th, 2018 at 01:23 PM

[3] A jurisdiction especially a country that imposes little or no tax on the profits from transactions carried on there or on persons resident there; Black’s Law Dictionary, 8thEd., Bryan A. Garner

[4] Tax base is defined as the income or asset balance used to calculate a tax liability, and the tax liability formula is tax base multiplied by tax rate. The rate of tax imposed varies depending on the type of tax and the tax base total. Income tax, gift tax and estate tax are each calculated using a different tax rate schedule.

Online Source: http://www.investopedia.com/terms/t/taxbase.asp#ixzz4xiN94ifl ; visited on 2nd May, 2018 at 12:30 PM

[5] Extracted from:https://www.forbes.com/forbes/welcome/?toURL=https://www.forbes.com/2010/04/14/tax-history-law-personal-finance-tax-law changes. html& ref URL= https://www.google.co.in /&referrer=https:// www.google.co.in/;   visited on May 4th, 2018

[6] The one who obtains an economic benefit at another’s expense without contributing to it; Black’s Law Dictionary, 8thEd., Bryan A. Garner
[7] Money invested in tangible and productive assets such as plant and machinery, as opposed to investment in securities or other financial instruments; Black’s Law Dictionary, 8thEd., Bryan A. Garner

[8] In the case of source based taxation principle, importance is to the source (country) where income is generated. There are individuals/entities whose “residence” is in one country but their business is actually carried on in another country and their income is earned in the latter country. In such cases, the principle of residence-based taxation would be inappropriate. Therefore, there is a view that the country which provides the opportunity and facilities to generate income or profits (COS) should also have the right to tax the same; Source:http://www.indianeconomy.net/splclassroom/142/what-is-the-difference-between-residence-based-taxation-and-source-based-taxation/; Visited on May 4th, 2018

[9] Generally, the financial centers referred to as tax havens include: Cayman, The Bahamas, Luxembourg, Switzerland, British Virgin Islands, Bermuda, Monaco, Mauritius, Cyprus, Anguilla, Aruba, Belize, Cook Islands, Malta, San Marino, Grenada, Gibraltar, Jersey, Nauru, Panama, Turks and Caicos, Antigua, Dominica, Guernsey, Isle of Mann, Liechtenstein, Netherlands Antilles, St. Kitts and Nevis, Seychelles; Source: David vs. Goliath (2001): An Analysis of the OECD Harmful Tax Competition Policy, Truman Butler

[10] The imposition of no or only nominal taxes and self- promotion or appearance of self- promotion as a place to be used by Non- residents to escape tax in their country of residence; Tax Planning with Holding Companies, Repatriation of US profits from Europe, Kluwer Law International, Rolf Eicke, Pg.111, Para 2

[11] Ring fence is to remove a set of assets from a set of accounts and consider it separately. This could be done for a company or for an individual. Certain assets could perhaps be moved offshore which would lower that company’s or person’s tax liability; Financial Times, Source :http://lexicon.ft.com/Term?term=ring-fence; Visited on April 23rd at 01:00 PM

[12] Recommendation 1 of The OECD Report, 1998, Para 97-100
[13] Recommendation 2 of The OECD Report, 1998, Para 101-103
[14] Recommendation 3 of The OECD Report, 1998, Para 104,105
[15]   Recommendation 4 of The OECD Report, 1998, Para 106,107

[16]  Recommendation 5 of The OECD Report, 1998, Para 108-110
[17] Recommendation 6 of The OECD Report, 1998, Para 111
[18] Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations (1995)
[19] Recommendation 7 of The OECD Report, 1998, Para 112, 113
[20] [20] See in particular The OECD Report on Harmful Tax Competition an Emerging Global Issue Paragraph 64 page 29…” The ability or willingness of a country to provide information to other countries is a key factor in deciding upon whether the effect of a regime operated by that country has the potential to cause harmful effects.”
[21] Recommendation 8 of The OECD Report, 1998, Para 114-117
[22] Recommendation 9 of The OECD Report, 1998, Para 118-120
[23] Recommendation 10 of The OECD Report, 1998, Para 121- 125
[24] Recommendation 11 of The OECD Report, 1998, Para 126- 128
[25]  Recommendation 12 of The OECD Report, 1998, Para 129-132
[26] Recommendation 13 of The OECD Report, 1998, Para 133- 135

[27] Recommendation 14 of The OECD Report, 1998, Para 136- 139

[28] Recommendation 15 of The OECD Report, 1998, Para 140- 148; for further detail on this recommendation to refer box III of the report

[29] Recommendation 16 of The OECD Report, 1998, Para 149-151
[30] Recommendation 17 of The OECD Report, 1998, Para 152, 153
[31]   Recommendation 18 of The OECD Report, 1998
[32] Equity and Fairness, Certainty, Convenience of Payment, Effective Tax Administration, Information Security, Simplicity, Neutrality, Economic Growth and Efficiency, Transparency and Visibility, Minimum Tax Gap, Accountability to Taxpayers, Appropriate Government Revenues are a few good tax administration principles. Guiding Principles of Good Tax Policy: A Framework for Evaluating Tax Proposals; Source:https://www.aicpa.org/ADVOCACY/TAX/downloadabledocuments/tax-policy-concept-statement-no-1-global.pdf; Visited on May 3rd, 2018 at 10:23 AM

[33] Recommendation 19 of The OECD Report, 1998
[34] Online Source:https://www.lawctopus.com/academike/resident-rule-india/; Visited on March 3rd at 04:00 PM

 

[35]  Cyber Threat Information Sharing, centre for strategic and International Studies; Source: https://www.csis.org/programs/technology-policy-program/cybersecurity-and-warfare/other-projects-cybersecurity/cyber-1; visited on May 4th, 2018

[36] Right to Privacy has been granted as a fundamental right in various jurisdictions including India; Justice K.S. Puttaswamy and Ors. vs. Union of India (UOI) and Others. (24.08.2017 – SC) : MANU/SC/1044/2017

[37]  Incentives for attracting foreign direct investment: An overview of OECD work; Online Source: http://www.oecd.org/daf/inv/investmentstatisticsandanalysis/incentivesforattractingforeigndirectinvestmentanoverviewofoecdwork.htm; Visited on May 3rdat 09:00 PM

[38] Economic inequality is the unequal distribution of income and opportunity between different groups in society. It is a concern in almost all countries around the world and often people are trapped in poverty with little chance to climb up the social ladder. But, being born into poverty does not automatically mean you stay poor. Education, at all levels, enhancing skills, and training policies can be used alongside social assistance programs to help people out of poverty and to reduce inequality.; sourcehttps://wol.iza.org/key-topics/economic-inequalityvisited on March 1st, 2018 at 12:33 PM

[39] Competition is about increasing choice and efficiency to benefit consumers and make the economy more productive. This also applies to sectors which in many countries have been liberalised (such as electricity, water, railways and telecoms), which are subject to regulation (banking and other financial services) or where the government plays an important role (healthcare, education and local public services); Source: http://www.oecd.org/competition/sectors/Visited on May 1st, 2018 at 12:39 PM

[40] Factors that affect foreign direct investment (FDI), Tejvan Pettingar; source:https://www.economicshelp.org/blog/15736/economics/factors-that-affect-foreign-direct-investment-fdi/Visited on October 28th, 2017 at 03: 21 PM

[41]  Also supported by OECD Project on Harmful Tax Competition Written by Samir Malik, University of Warwick; Source:http://www.legalserviceindia.com/article/l264-OECD-Project-on-Harmful-Tax-Competition.html; Visited on May 12th, 2018 at 01:12 PM
[42] Ibid

 

The Use of Force against Terrorism: Does International Law fall Victim

Posted on | by Prashanti Upadhyaya | 1 Comment on The Use of Force against Terrorism: Does International Law fall Victim

terrorismPost 9/11 ‘use of force’ in international law and much of the
understandings towards it has undergone great evolution. The
international world is at the hinge of the history as many of the old regime falls and new threats emerge. The challenges this have created for the traditional system have been unparalleled.

The ghastly act of bombing the twin towers of the World Trade Centre and the aftermath response made by the individual countries and international community at large had, many commentators felt, left the international law dumbfounded. This has been reflected by inability of the international law in categorizing the events of 9/11 within its framework and also in determining the legality of the action taken by the coalition forces as ‘war against terror’ in Afghanistan and beyond, following the two Security Council Resolutions. [1]

The event itself has led to the emergence of many new questions in the international law. Whether international law at present provides machinery to deal with the act of terrorism of the magnitude witnessed by 9/11? How far an individual State is justified in using force against another State to suppress terrorism? Whether the act of terror, especially by non- state actors, may be termed as ‘armed attack’ pursuant to Article 51? Whether the right of self- defence extinguishes once the ‘attack’ occurred or does it continue to exist to prevent a prospect ‘threat’? Who determines whether the prospect of such threats as mentioned above exist? The present research paper seeks to address the above amongst many other questions besides analyzing particular situation in some specific context.

The theme area of this article like any other themes in international law may have been dealt with by many different authors. Also such a broad theme as present is quite capable of admitting many things. Hence certain caveats are in order regarding relevance and scope of this research paper.

Post 9/11 has generated much of the literature on this subject so much so that any discussion on this may seem as repetitive. But some of the recent happenings around the world have revived the interest of scholars and practitioners of international law into this area. The killings of US born Yemeni cleric and Al- Qaeda leader Al- Alwaqi[2] and founder leader of Islamist militant organization Al- Qaeda Osama Bin Laden on foreign soils have far reaching consequences for this area of international law. In any case, the issues in debate since have refused to die down making this area still a fertile ground for all concerned. Finally it is necessary to mention that international action to suppress terrorism interfaces with many other areas of international law including state responsibility, international humanitarian law, human rights, international criminal law among others. The scope of present research paper however is only restricted to commentary on international norms of use of force to suppress terrorism and assessment of contemporary situations.

 

 

The General Principles Underlying Use of Force

The use of terrors as a means to achieve political ends is an old phenomenon.[3]However, in recent decades the situation has become more intense and complex. In many cases non- state actors choose to target another State, while in other cases terrorist targets the assets of the victim State in uninvolved third States to pressurize the government of the victim State. Still in others, some of the States actively aid and abet the actors to carry out attacks in other States. This has created a number of problems before international law, especially where the third State is involved. The first challenge is definitional itself. Secondly, whether there are agreed measures for prevention and punishment of terrorist acts. Also, does international law provide adequate mechanisms for action against state that aids and abets terrorism?

It is obvious that members of international community must follow the norms of international law in their dealings with international terrorism, particularly where the sovereignty and the territorial integrity of third State is involved. No doubt strong response is required to suppress international terrorism. But any measures evolved must be so, that does not detract from the established principles of international law. It is the situations such as these which test the faith of international community in international law; otherwise temptation may run high on the part of powerful nation to take action undermining the purposes and objectives of the United Nations system[4]. It is thus apt here to survey the emergent principles of international law governing use of force in circumstances involving international terrorism.

A. Prohibition of Use of Force

The present rules of international law, particularly the ‘law of war’ were devised aftermath of World War II to prevent the horrors and devastations of the scale witnessed during that period. The normative rule that prohibits the use of force in international relations was born of similar desire under the UN Charter System. The ban on use of force is laid down in Article 2(4) of the UN Charter which requires that States ‘refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.’

The ban on use of force was a rule of pre charter customary international law albeit rooted in concepts such as just war and lawful reprisal. The Charter rule, however, severely restricted the circumstances under which use of force may be considered legal.[5] Article 2(4) now place a general prohibition on use of force and extends this prohibition beyond war to include all types of unilateral use or threat of force. In fact, a substantial number of scholars attribute the rule contained in Article 2(4) to have attained a jus cogens character. [6]

The Charter allows for two exceptions to the general prohibition on use of force: (i) individual and collective self- defence under Article 51 and (ii) enforcement measures authorized by the Security Council in response to ‘any threat to the peace, breach of the peace or act of aggression’ under chapter VII [7]. The charter is fairly open-ended regarding the Security Council’s power to authorize force ‘to maintain or restore international peace and security’. In contrast, the UN Charter is rather restrictive with respect to the use of force by states. It is here that the dispute arises regarding validity of use of force by individual states to suppress international terrorism, whereby such action leads victim State to the territory of another State.

B. Self- Defence in International Law

Self- Defence, as is evident from the term, is a kind of self-help and is available to State in the event of illegal use of force but not in violation of international obligations of the State resorting to self- defence. Thus, self- defence, under modern international law, excludes acts of retaliation and also acts of deterrence against possible future attack. [8]

Article 51 of the UN Charter specifies the conditions under which individual states may resort to force. There has been considerable controversy as to the precise extent of the right to self-defence, especially with regards to what is meant by an ‘armed attack’. This question assumes particular significance to the present research paper so as to determine legality of use of force against terrorist supported by another State. Generally speaking, by virtue of Article 2(4), it can be defined as the use of force against a state’s territorial integrity and political independence, its exact scope is still in dispute. To illustrate, in its Nicaragua judgment, the ICJ found that sending armed bands or mercenaries into the territory of another state constituted an armed attack, while supply of arms or logistical support by itself did not amount to an armed attack. Thus, the ICJ left the question fairly open ended, whether the right of self- defence extends to attacks by non- state actors or whether its application is confined to response to attacks by the States.

Along with the scope of ‘armed attack’, another contentious issue pertains to whether a right to anticipatory or pre-emptive self- defence exists, whereby an actual armed attack has still not occurred but threatened. The restrictive view is that article 51, read in conjunction with the general prohibition of the use of force set out in Article 2(4) limits the invocation of such a right to cases where an actual armed attack has actually occurred and not where such attack being threatened. This view finds support from the fact that article 51, in contrast to article 2(4) leaves out any reference to the ‘threat’. The liberal view maintains that Article 51 should not be interpreted as excluding the right to anticipatory self-defence in the case of an imminent danger of attack. This view rejects the restrictive interpretation of the word ‘if’, as it is employed in Article 51, as meaning ‘if and only if’.[9] These scholars point out that by qualifying the right of self-defence as ‘inherent’, article 51 indicates the existence of a right of self- defence in pre-charter customary international law, according to which preventive measures are permitted.[10]

C. States’ Practice

The ICJ itself in Nicargua Case expressed no view on the issue of lawfulness of a response to an imminent threat of armed attack.[11]But the problem with the international system is that in majority of the cases it leaves such determination to be made by the States themselves.

Making legal rules in international law is one thing; hence it is relevant to see how interpretation of anticipatory self- defence played out in States’ practice. The State practice on this issue at best may be termed as ambiguous. The bombing of Iranian nuclear sites to prevent prospective nuclear attack on Israeli territories provide a typical case for analyzing this issue. While Security Council (SC) unanimously condemned Israeli action and found the military attack by Israel in clear violation of the Charter of the United Nations and the norms of international conduct, the Permanent and other members of the Council did so on different grounds. Some of the non- permanent Representatives [12] took restrictive position confining right to self- defence to cases where there is an actual ‘armed attack’, Britain justified its voting on the ground of Israeli action failing to meet the criteria evolved in Caroline Case [13], i.e. absence of instant and overwhelming situation necessitating self- defence action. Still further, US condemnation of Israeli action was based on entirely different plane. It held Israeli action untenable because of its failure to exhaust peaceful means for the resolution of this dispute.

The above positions offered by different States afford no safe view regarding permissibility or otherwise of measures to ward off anticipated attack where Nation States are involved. Still less the existing position clarifies regarding the self- defence right against non- state actors in case of anticipated attacks. But one thing may be said with certainty that even in case of anticipatory self- defence, the criteria of necessity and proportionality rule the roost.

 

 

The Wind of Change: Present Regime

As mentioned earlier that use of force as such, under article 2(4), against non- state actors is not prohibited per se, but states are under obligation not to use force in their ‘international relations’. As a consequence, anti-terrorist force could be used as long as it did not concern the scope of states’ international relations.

This clearly demonstrates that use of force against terrorists based in another state clearly comes within the scope of article 2(4). This, in turn, apparently meant that states on whose territories such attacks are carried out would be left with very little options and forced to bear the brunt silently. However, Charter system provides a distinct exception to prohibition of use of force under article 2(4). Chapter VII provides for collective enforcement measures authorized by Security Council, if it deems that a situation exists as a threat to, or breach of, the peace in the sense of Article 39 of the Charter. It needs to be mentioned though that before September 11, in no case the Council considered any specific terrorist activities, let alone terrorism in general as threat to international peace and security.

The 11 September events did not herald any change in normative rules. On the face of it, the Charter regime is the same. Articles 2(4), 42&43, and 51 UNC still apply. But the Security Council has re- invented itself and has taken some measures since September 11 to deal with terrorism.[14]Outside Security Council framework, countries like India presented a proposal to the United Nations General Assembly for a comprehensive convention against international terrorism, which has been unsuccessful due to the failure to agree on the scope of the Convention.

A. The Role of security Council and Its Limitations

As is well-known, in the last two decades the Security Council has asserted its role in the international system vis-a-vis terrorism. In fact after September 11, it has adopted more number of Resolutions on anti- terrorism measures than, perhaps on any other subjects.
In its 1368 (2001) Resolution, the Council made first ever reference to terrorism, and noted that it was ‘determined to combat by all means threats to international peace and security caused by terrorist attack’ and regarded such attacks ‘like any act of international terrorism, as a threat to international peace and security’. This Resolution, it may be noted, was adopted not under Chapter VII, and thereby could not authorize collective use of force, nevertheless was quite a game changer.

In contrast, the Council in its Resolution 1373 (2001) specifically noted that it is acting under Chapter VII of the Charter and took specific non- military measures under article 41 of the Charter. In particular, it imposed on all States certain obligations specifically selected from those imposed by the 1999 Convention for the Suppression of the Financing of Terrorism, which at that time was not yet in force. In so acting, the Council rendered certain purely treaty rules binding on all Member States of the United Nations and thus assumed the role of a true international legislator.

There are two aspects to these resolutions. First, these two resolutions make it abundantly clear that acts of terrorism can amount to threats to peace in the sense of Article 39 of the Charter.[15] In fact the Council in its Resolution 1566 (2004) reiterated this principle that it ‘condemns in the strongest terms all acts of terrorism irrespective of their motivation, whenever and by whomsoever committed, as one of the most serious threats to peace and security’. And secondly, it has obligated upon all the States to take non- military measures as specified above for the purpose of fight against terrorism.

In making these resolutions though the Security Council asserted its role in dealing with terrorism but at the same time suffered itself from a limitation. Once the Council has qualified an act of terrorism as a threat to the peace, the path towards sanctions under articles 41 and 42 of the Charter is in principle open. Yet the Council has refrained from applying article 42. This is a clear indication that the Council has not authorized use of anti- terrorist force as military sanctions.

In fact, the US itself, after 9/11, did not resort to Chapter VII authorization to use force. Perhaps, it was evident to it that that general wordings of Resolution 1368 (2001) may be invoked by many other countries in the future. Instead it relied on that part wherein the Security Council recognized “the inherent right of individual or collective self-defence in accordance with the Charter”. Here the expression ‘in accordance with the Charter’ is of particular importance. Can it be said that Security Council Resolution 1368 granted a broader right to use force unilaterally in exercise of self- defence?

 

B. Right to Act Unilaterally

The key developments during the last two decades affect the rules governing the unilateral use of force against terrorists. During period preceding 1990’s, States have used force against terrorist threats but sparsely. However, the recent decade has seen marked increased in tendency to use force unitarily against terrorists on foreign soil. The situations in which force has been used vary significantly, but have almost exclusively been explained as exercises in self-defence.

The most obvious example is the US exercise of self-defence in response to the 9/11 attacks. The US response is not an isolated event. Many States have reacted against terrorist strikes by using force, including invasion of foreign territories from which the terrorists were operating. The most prominent example is Israel. Israel has repeatedly claimed its right to act in self- defence against terrorism emanating from foreign territories. In the summer of 2006, following rocket attacks against it by the Lebanon based Hezbollah, Israel responded with an invasion of Lebanon.[16] More recently in March 2008, Colombian forces moved into Ecuadorian territory in pursuit of rebels belonging to FARC.

The recent practices by the States described above have put strains on past understanding of circumstances which trigger exercise of self- defence right. The following sections analyse how the recent practices by the States have attempted to bring in prescriptive changes in key features of self- defence regime in relation to anti- terrorism measures.

(i) Rule of Attribution

Much of the above discussion centered on the fact whether individual States can claim recourse to self- defence under article 51 in the event of an attack by the terrorist by pursuing it on foreign territories. One of the many questions arises in this respect is the determination of state involvement in the attack. The ICJ in the Nicaragua Casehas laid down the ‘effective control’ test of attribution.[17] The test essentially attributes responsibility to a State for acts of private individuals on the basis of the following standards: (a) whether the state has issued instructions to those persons; (b) whether the state has directed the persons to do something; or (c) whether the state has exercised control over those persons.

However, many of the commentators have suggested that this rule stands modified in the light of recent State practices wherein responsibility is attributed to the States for its complicity in the activities of terrorists based on its territory – either because of its support below the level of direction and control or because it has provided a safe haven for terrorists. It brings the new approach in line with views expressed in Judge Jennings’ dissent, notably his plea for more flexible standards of attribution.[18] The flexible approach as suggested, though seized by the US and Israel- because it seemed convenient to them at that point- is yet to be established firmly in international law. Till that happens, employing the notion of complicity, it seems, may be described as aggression.

(ii) Threshold Requirement

The second element of the self- defence regime is threshold requirement. The jurisprudence developed by international courts seems to have made distinction between ‘less grave form’ and ‘more grave form’ of use of force. In the Oil Platforms case,[19]it expressly affirmed such distinction. This implies that state resorting to self- defence has to satisfy that attack carried out against it is of nature that will qualify as large scale attack. But the world court is having second thought on this. In DRC-Uganda Case[20], insofar as it held that self-defence could be directed only against ‘large scale attacks, it left open the question- whether states could respond to ‘attacks by irregular forces’.

Even a survey of state practices suggest that States have never given up their rights to respond in case of breaches which by themselves may not qualify as ‘grave form of attack’ as hinted in Nicaragua case. The emerging trends suggest that states are willing to move beyond threshold requirement suggested in Nicaragua judgment in favour of “accumulation of events” doctrine. This doctrine suggests that with respect to the threshold requirement, it must be assessed whether a series of minor incidents, taken together, can be said to reach the threshold of an armed attack.[21]

It is to be noted that the doctrine was much discussed by the litigants in the Cameroon- Nigeria, DRC-Uganda, and Oil Platforms cases, but the Courts in the respective cases did not pronounce on the matter. This doctrine gives comfort to those who have long criticized the gap between article 2(4) and artice 51, but still has not yet found firm place in international law. Alternatively, Judge Simma in Oil Platform Case favoured “proportionate defence measures” in place of ‘accumulative doctrine’ to fill such gap.

 

The above arguments, however, are not conclusive that threshold requirement expounded in Nicaragua case is no longer hold good. This is mainly for two valid reasons. One, that ICJ yet to give an authoritative judgement on the matter holding ‘accumulative events’ or ‘proportionate defence’ doctrines valid in context of article 51, and two, that self- defence right is defensive in nature and cannot extend to perpetuity waiting for events to accumulate.

(iii) Defensive Nature of Right

Debates in recent times have centered on conditions under which states can invoke self- defence right. But the scope of the right itself is undergoing dramatic changes. In particular, recent practice seems to have largely abandoned the functional understanding of self- defence as a protective means of ‘repelling armed attacks’. This in turn raises doubts not only about the time limits of self-defence, but also about the inherently defensive character of the right.

The traditional understanding of self- defence right is that response to use of force must have immediacy requirement. Even one accepts the broader notion of ‘armed attack’, yet response by the affected state must be immediate and defensive in character. But the recent state practice, particularly Operation Enduring Freedom launched by US after 9/11, does not satisfy above requirement. The Operation was initially based on a broad and defensible reading of Article 51 of the Charter. But it has now turned into a self-perpetuating military campaign serving a range of objectives. It is submitted that the campaign has clearly overstretched the boundaries of even the broadest understanding of self-defence. The recent killings of Yemeni leader Al- Alwaqi and Al- Qaeda founder Osama- Bin- Laden, based on permanent state of self- defence does not hold good in international law. One can only hope that this remains an isolated event and not emulated by other nations, particularly by those who have veto power in the Security Council.

 

 

 

A Way Forward

A dispassionate reading of the recent state practices [22]and Security Council Resolutions suggest that rules on use of force in the context of terrorism are on the verge of change. If one accepts that these rules needed some re- adjustment, then they must change for better. But the challenge before international community lies in making the rules universally applicable and adding a bit of certainty it. The more immediate challenge before international lawyers and political leaders is to resist the tendency to offer justification for use of force against terrorism in self- defence based on unilateral threat perception.

Now the bigger question arises what should be the strategy of international community in dealing with international terrorism wherein some of the states are found aiding and abetting terrorism. At the outset it must be mentioned that the validity of existing legal framework of self-defence must be reaffirmed. It would be counter-productive to an expansive doctrine of ‘accumulation of events’ as proposed by many commentators and justified by states. This is not to say that the existing framework is perfect. The application of the decision of the ICJ in the Nicaragua case must be reconsidered in cases of State support for terrorism. In cases where an armed attack has been launched by a terrorist group or is imminent, it should be possible to use force in self-defence against a ‘harbouring’ State provided link between terrorism and the State harbouring it must be accepted by international community. But it is still better to develop some new strategies, outside self- defence framework, to deal with such scenarios.

 

 

 

A. Comprehensive Convention Against International Terrorism

The best option before the international community is to adopt legal instruments dealing with acts of terrorism. However, any such instruments can only be helpful, if agreed by maximum number of nations, if not by all. India has presented a proposal to the United Nations General Assembly for a comprehensive convention against international terrorism, which has been unsuccessful due to the failure to agree on the scope of the Convention.

The definitional impasse has prevented the adoption of a Comprehensive Convention on International Terrorism.[23] This convention would complement the existing framework of international anti-terrorism instruments and would build on key guiding principles already present in recent anti-terrorist conventions- the importance of criminalization of terrorist offences, making them punishable by law and calling for prosecution or extradition of the perpetrators; the need to eliminate legislation which establishes exceptions to such criminalization on political, philosophical, ideological, racial, ethnic, religious or similar grounds; and emphasis on the need for Member States to cooperate, exchange information and provide each other with the greatest measure of assistance in connection with the prevention, investigation and prosecution of terrorist acts. In addition to UN efforts, a number of regional efforts are on way to check this menace.

While the broad consensus among nations is proving elusive, it is important that Counter Terrorism Committee, established under SC Resolution 1373 (2001) continues its work in preparation of model law. Further, it is the duty of the Council to see that its recommendations are implemented by all nations. The members of the Council, especially permanent members, must use its influence in building consensus.

 

 

B. Criminal Law Strategy[24]

The second option, though seemingly less optimistic in present scenario, is internationalization of fight against terrorism. The international policy against terrorism should require the states to accept a broader range of obligations relating to the treatment of terrorists and terrorist organizations.

There are two way to achieve this. One way is to model such Criminal Conventions on the principle of subsidiary universal jurisdiction so that it is the duty of each state to ensure application of rule- ‘aut dedere, aut judicare’. According to this rule, the arresting State has a choice between prosecuting or extraditing the criminals. It is obliged to opt for one or the other and cannot simply wash its hands of criminals found on its territory. Another way is to model such Convention on Rome Statute. Such Convention may establish international judicial bodies competent to prosecute terrorist activities – may be eventually even a ‘terrorism chamber’[25]of the International Criminal Court.

A well-crafted multilateral regime, based on enhanced duties to criminalize and prosecute terrorist activities, arrangements for cooperation in criminal matters, as well as in the fight against financiers of terrorism, is a key in achieving success to root out terror. In addition, one might hope that such regime also includes safeguards protecting individual rights of terror suspects.

 

C. Greater Responsibility on Security Council

Lastly and most viable option is that the Security Council should be more willing to take grater responsibility in dealing with anti- terrorism measures, as it has wider implications on international peace and security. The collective security regime of Chapter VII of the UN Charter is vital in addressing threats to international peace and security. The Security Council remains an indispensable forum for deliberation. Disturbing failures notwithstanding, the Council is the only plausible source of legitimation for the collective use of force.

The question then boils down to reform of the Council as the present functioning of it, leaves much to be desired. Even if structural reform to the Security Council proves elusive, the Secretary-General’s Panel on Threats, Challenges, and Change represents an immense opportunity to develop criteria to guide the Council in decisions on the collective use of force.

The different options presented above are not mutually exclusive. In fact the emerging practices suggest that the states are open to all kind options in the fight against terror. They must nevertheless, of course, act in compliance with the law, and in particular with international law, of which various areas are relevant: the aw on the use of force, criminal law, humanitarian law and human rights.

 

 

Conclusion

The above discussion suggests that the law governing anti-terrorist force is in a process of change. The international consensus, as it is emerging, requires state cooperation or active state conduct against terrorism. International law now accepts that the fight against terror may require the use of extraterritorial force, but possibly also outside it. But this practice remains centered to NATO fight against terrorism and is not applicable to terrorism faced by other countries including India.

The emerging consensus on the NATO action against terrorism has put pressure on the traditionally restrictive regime of self- defence. This pressure has affected the interpretation of exceptions to the ban on force. This construction may be helpful in shaping international policy that denounces terrorism in all form.

However, there is downturn risk to it. The broadly construed exceptions to the ban on force may be abused to the extent of giving expansive interpretation to self- defence or even to accept ‘retaliatory self-defence’. The recent practice of the states, particularly US action aftermath 9/11 borders on reprisals to disproportionate exercise of self- defence. If any other countries were to rely on such broad construction of such regime, it would lead to subversion of world order.

This is not to suggest that no changes are required in the existing framework that handles anti- terrorism measures. In fact new threats of 21st century require new methods to cope with that. After all, Security Council Resolutions 1368 and 1373 reflect change in that direction as for the first time international community joined in unconditional condemnation of terrorist activities. Hence we should not shy away from the change itself. But any such changes among other things should include a consensus on underlying principles, a relative equality of actors within the system, and a level of trust sufficient to make co-operation possible.

 

 

[1] SC Res. 1368 (Sept. 12, 2001) and 1373 (Oct 7, 2001).
[2] Anwar al-Awlaki killed in Yemen – As it Happened, available at http://www.guardian.co.uk/world/blog /2011/sep/30/ anwar-al-awlaki-yemen-live
[3] Shaw, International Law, 4th Ed, p.1048. He has cited many examples where the states have in the past actively used this policy to achieve political ends.
[4] It need not be repeated that the UN was created to maintain international peace and security. The challenge of terrorism increasingly threatens the framework of international security. Also see, SC Res. 1368 (Sept. 12, 2001)
[5] General Assembly resolutions, such as the Declaration on Principles of International Law (GA Res. 2625 XXV 1970) and the Definition of Aggression (GA Res. 3314 XXIX 1974)
[6] The ICJ in Nicaragua case came close attaining Jus Cogens status to use of force. See, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States) [1986] ICJ Rep 14.
[7] Also see, Regional Arrangement Chapter VIII, UN Charter
[8] ‘Acts of deterrence’ in this context refer to the use or threatened use of force for political purposes. They entail increasing military strength of a state in order to be prepared to inflict unacceptable damage on an aggressor and making sure that the potential aggressor is aware of the risk, so that he refrains from aggression. Thus, ‘acts of deterrence’ include actions by which governments threaten an immense retaliation if attacked, such that aggressors are deterred if they do not wish to suffer great damage as a result of an aggressive action.
[9] R. Jennings and A. Watts, Oppenheim’s International Law, Volume I (1992), p. 421.
[10] International order in a globalizing world, By Yannis A. Stivachtis, Retrieved from Google Books.
[11] Also See, Oil Platforms (Iran v United States of America), International Court of Justice, Judgment (Merits) of 6 November 2003, ICJ Reports 2003, p. 161.
[12] Syria, Guyana, Pakistan, Spain and Yugoslavia were the non- permanent members which opposed Israeli action.
[13] Caroline incident refers to the British attack in 1837 on a vessel owned by US nationals, Caroline, on the basis of its alleged support to the anti-British insurgency in Canada and with a claim to right to self-defence.
[14] These measures related to curbing finances of terrorism, freezing the financial assets of terrorist organization, imposing travel bans, etc.
[15] Charney, J, The Use of Force against Terrorism and International Law, AJIL, Vol. 95, No. 4, p. 840
[16] See, Ruys, ‘Quo Vadit Jus ad Bellum? A Legal Analysis of Turkey’s Military Operations against the PKK in Northern Iraq’, 12 Melbourne J Int’l L (2008),p. 337
[17] The effective control test has also been incorporated in Draft Articles On State Responsibility by ILC, See especially Art. 8 (‘Conduct directed or controlled by a State’). In the commentary thereto, the ILC makes extensive reference to the Nicaragua judgment, thus acknowledging the origin of the effective control test.
[18] See Dissenting Opinion of Judge Jennings, Nicaragua Judgment
[19] Oil Platforms Case (Islamic Republic of Iran v. United States of America), Judgment of 6 Nov. 2003, [2003] ICJ Rep 161, Para. 291
[20] Armed Activities on the Territory of the Congo (DRC-Uganda case), [2005] ICJ Rep 201, para. 148
[21] This doctrine was explored in the article Cassese, ‘Terrorism Is also Disrupting Some Crucial Legal Categories of International Law’, 12 EJIL (2001) 993
[22] See Lobel, ‘The Use of Force to Respond to Terrorist Attacks: The Bombing of Sudan and Afghanistan’, 24 Yale J Int’l L (1999) 537. This article surveys the existing state practices in dealing with terrorism as came out from their governments’ statements before various international for a.
[23] Organization of Islamic Conference does not agree on the definition given in the draft. It insists on making distinction between terrorists and those fighting for freedom.

 
[24] See, R Higgins and M Flory International Law and Terrorism (London Routledge 1997), at 28.
[25] This is proposed by Guillaume G, in his Article Terrorism and International Law, The International and Comparative Law Quarterly, Vol. 53, No. 3 (Jul., 2004), p. 537.

 

Whether laws of Sedition have any place in a Democracy or should it be Repealed ??

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seditionKanhaiyya Kumar, young student leader from JNU Delhi, hailing from a poor family in Bihar is the latest victim of the charge of sedition. News reports suggest that the police has no record to show that he shouted any anti-national slogans. Yet he was arrested and put behind the bars. During the past two years or more intellectuals, artists and social activists have been mindlessly charged with sedition for saying things the establishment is not in favor of. Kanhaiyya’s arrest has now triggered a public debate on this much-misused law.

Sedition is an offence defined in Section 124 A of the Indian Penal Code, 1860. As per this Section, anyone who brings or attempts to bring into hatred or contempt or excites or attempts to excite disaffection towards the Government by words spoken or written or by signs or by visible representation or otherwise is guilty of the offence of sedition. The definition is so exhaustive that it does not leave out of its purview any possible mode of self-expression, simply by using the words “or otherwise”. The punishment for the offence of sedition is life imprisonment but lesser punishment can also be awarded.

Out of the three explanations added to the Section, two seek to clarify that expressing disapprobation of the measures of the Government or administrative action is not an offence. But any attempt to excite contempt, hatred or disaffection will definitely make such permissible disapprobation also liable to be punished. It is the ordinary police constable who will in the first person decide whether a brilliant speech made in a seminar by eminent author or a great cartoon made by a cartoonist will cause disaffection, contempt etc. towards the government. In an age of unenlightened patriotism and lumpenisation of politics the danger to the life and liberty of Indian citizens who speak out against the government of the day is too real, as is evident from some of the recent happenings.

It is therefore necessary to seriously debate sedition, and its impact on the fundamental rights of citizens. Pandit Jawahar Lal Nehru called sedition an obnoxious piece of legislation. But his government and all the subsequent governments retained it and misused it. Such hypocrisy of Indian politicians kept alive this colonial law which should have been repealed by the first Indian Parliament.

Sedition was brought into the Indian penal code in 1870, almost 10 years after the code was enacted. Its object was apparently to silence the Indian voice. Section 124A was adopted by the council of Governor General of India, which met in Shimla on August 2, 1870. The remarks made by J. Fitz James Stephen while presenting the bill before the council about the scope and extent of sedition are instructive. “Language temperate in itself and justifiable as far as the express meaning of its terms went might, if addressed to an excited mob be the clearest proof of an intent to produce forcible resistance to authority. While genuine criticism had nothing to fear from the proposed section, persons seditiously disposed must not suppose that they could evade its provisions by confining themselves to what under other circumstances and in other persons might be genuine criticism”. It is an outrageous statement of the law on sedition which in simple language means that sedition could be slapped on persons of seditious disposition. Honorable Fitz James Stephen was adding a new dimension to Anglo-Saxon jurisprudence by suggesting that a man’s disposition will also make him liable under sedition.

After sedition was introduced in the code the first major case that was tried under it was Lokmanya Tilak’s case[1] in which the clearest exposition of the law was made by Strachy J. While stating the law before the jury he said “the offence consists in exciting or attempting to excite in others certain bad feelings towards the Government. It is not the exciting or attempting to excite mutiny or rebellion or any sort of actual disturbance great or small. Whether any disturbance or outbreak was caused by these articles is absolutely immaterial”. This statement of law was later approved by the privy council.

Another landmark case in which the scope and nature of sedition as defined in the Indian code was explained was Sadashiv Narain Bhalerao’s case[2]. The privy council held “but even if he (accused) neither excited nor intended to excite any rebellion or outbreak or forcible resistance to the authority of the Government still if he tried to excite feelings of enmity to the Government that is sufficient to make him guilty under the Section”.

 

 

DISAFFECTION TOWARDS THE GOVERNMENT

Thus the law of sedition which has emerged from the decisions of the privy council during the pre-independence era is for that a simple statement or a speech which can excite “disaffection” towards the Government the maker of the speech or statement is liable to be prosecuted under Sec 124A. No incitement to violence or insurrection is necessary. The implication of this statement of law is that after the Constitution came into force, Section 124 A of the IPC would become violative of the fundamental right to freedom of speech and expression. Thus sedition, a draconian law of the colonial era would have been out of the penal code for good.

However this did not happen because in 1962 the Supreme Court upheld the constitutional validity of Sec 124A in the Kedarnath case.[3] During the colonial period sedition was considered a black law and was used extensively against the leaders of the freedom movement. Mahatma Gandhi, Bal Gangadhar Tilak and many other leaders were put behind bars for many years under this law. But the constitution bench of Supreme Court painted it white and presented it before the free Indians as a necessary law in the interest of the survival of republic.

The constitutional validity of sedition was upheld by the Supreme Court on the basis of an interpretation of Sec 124A in line with the decisions of the federal court in Niharendu’s case[4] and certain English cases. In this case Sir Maurice Gwyer, CJ stated the law on sedition in the following words “public disorder or the reasonable anticipation or likelihood of public disorder is thus the gist of the offence. The acts or words complained of must either incite to disorder or must be such as to satisfy reasonable men that that is their intention or tendency”. In line with this statement of law by the federal court, the Supreme Court of India held that as public disorder and violence are the essential ingredients of sedition it is a law made in the interest of public order under Article 19 (2) and hence is a reasonable restriction on the fundamental right of freedom of speech.

However this statement of law made by the federal court was clearly overruled by the Privy Council, the highest appellate court and held that the law declared in Tilak’s case was the correct law. But the Supreme Court of India opted for the view taken by the federal court and not by the Privy Council because it wanted to uphold the validity of sedition as a reasonable restriction on the fundamental rights. By its own admission the statement of law made by the Privy Council in Tilak and Bhalerao and other English cases was sound but adopted the federal court view because it wanted the law of sedition to be in the penal statute. The following observations of the Supreme Court in Kedarnath Singh’s case indicate why it wanted sedition to remain on the statute book: “In other words any written or spoken words etc. which have implicit in them the idea of subverting Government by violent means which are compendiously included in the term revolution have been made penal by the section in question”. Obviously the court wanted to stop revolution in India by upholding the validity of sedition!

The Court also weakened the base of its own judgment by observing that the federal court took a view different from the Privy Councils because the latter’s various judgments were not shown to the federal court. In other words the federal court would have gone with the Privy Council on the interpretation of sedition had its views been available to it. So there was nothing inherently infallible about the view taken by the federal court which our Supreme Court adopted as the most acceptable legal decision. Further, Article 19(2) permits reasonable restrictions on the freedom of speech. if the law imposing reasonable restriction is made in the interest of public order , it is constitutionally valid. This is the ground on which Kedarnath Singh judgment upheld the constitutional validity of sedition. There is an obvious fallacy in this argument.

The Court itself says that the words “in the interest of public order” are of the widest amplitude. “Reasonable restriction” and “words of widest amplitude” are mutually contradictory. Restrictive provisions can’t be so open ended and wide. They need to be narrow and restricted. The highest law court of the time had declared that public disorder or violence is not an essential ingredient of sedition under the Indian code. This being so it should be assumed that sedition is not a law enacted in the interest of public order and hence outside the protective cover of Article 19(2).

 

SUPPRESSING THE INDIAN VOICE

The Colonial Government in India inserted Sec 124A in the code for the purpose of suppressing the Indian voice. So the law of sedition was made stringent which was different from the English law. The English law did not define sedition but the Indian code defined it. The privy council therefore said that if the law defines the offence in clear terms the courts should go by that definition and as per the text of Sec 124A a simple speech or statement which can cause disaffection towards the government and nothing more shall bring it within the mischief of sedition. This is how the law of sedition was always enforced in India. So with the coming into force of the Constitution, Section 124A would have become an unreasonable restriction on the freedom of speech and thus would have become violative of the fundamental right. By retaining it in the code, free India’s governments repudiated the concept of human rights evolved through long years of freedom struggle.

 

Every strong criticism of the government, a minister or a chief minister or the prime minister causes some amount of disaffection towards them. When people read about the corrupt deeds of a government what exactly is the feeling that is generated in them? Is it contempt or hatred or a feeling of love and sympathy for such a government? In a democracy the people change such governments through vote. No democratic government can afford to charge people with sedition and put them behind bars for saying things which they have the freedom to say. So the offence of sedition has no place in a democracy. That is why the British repealed it in their own country even though they had brought in the toughest variety of sedition when they ruled India. But democratic India even with all its bitter experience of the operation of this law by the colonial government retained it and used it liberally against its people taking refuge under a Supreme Court decision validating it.

There is an urgent need to review this judgment of the Supreme Court and declare sedition unconstitutional or alternatively, parliament should repeal it at the earliest. If someone raises slogans against India or endangers the security of India he should be dealt with under appropriate laws. The law of sedition is too colonial, too dangerous and too destructive of the basic freedoms of the people. It should be scrapped.

[1] Queen Empress v. Bal Gangadhar Tilak (1897) ILR 22BOM
[2] King Emperor v. Sadashiv Narain Bhalerao (1947) LR 74 IA 89
[3] Kedarnath Singh v. State of Bihar AIR 1962 SC 955.
[4] Niharendu Dutt Majumdar v. King Emperor (1942) FCR 38

Necessity for the enactment of Space Law in India

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Space LawINTRODUCTION

One of the most challenging and interesting areas of law is the jurisprudence of space activities. Space, as a subject, a domain and a paradigm, fundamentally challenges collective human consensus worth several hundreds of years on subjects as elemental as sovereignty and ownership. What compounds the problem is that addressing space from a policy-making perspective involves not just domestic in-house legislative and executive exercises but also that such exercises must constantly engage, influence and ratify international regulations and processes. And as a space lawyer, one must constantly unlearn and let go of the limiting influences of conventional legal training while also retaining the fundamental enablers of conventional jurisprudence that makes a space-law perspective possible.

The US has adopted a new law that recognizes mining of space bodies by private players. In many ways, this is an extension of a vision that dates back to the Commercial Space Launch Act, 1984, which enabled the private sector to assume operations in space and left NASA to focus on what it does best: research and development. Elon Musk’s SpaceX and similar success stories are a byproduct of a robust relationship that the Americans built with the private sector to leverage opportunities in space. This is in stark contrast to the pre-infantile state of play for the private sector in India.

The Indian Space Research Organization (ISRO) has done a phenomenal job of putting India on the roster of elite space faring nations. ISRO itself is a testament to perseverance and ingenuity, a fact borne out by the growth the organization has achieved despite the limiting effects of international sanctions. Today, it deserves the independence that it enjoys – bolstered by the success of its Polar Satellite Launch Vehicle (PSLV). In fact, there would be no private sector in space in India at all without an ISRO that inspired the youth of this country to look skyward and beyond. So the context is simply this: how can the private sector now participate and enhance the greatness of ISRO?

 

Only Pessimism for the Private Sector

While ISRO remains the central player in this scenario, the story remains incomplete until we understand that technology and space-based services have now taken center stage in achieving better governance and quality of life on Earth. Take for example, the proposed Goods and Services Tax regime that aims to translate the entire tax collection, compliance and filing systems to an electronic and Internet-enabled system. When the system rolls out, India will need to ensure rapid percolation of the Internet into every nook and corner, an effort that can be made easier with high-throughput satellites, which are a hot trend elsewhere but not yet in India for unknown reasons. From healthcare to education, satellites will define India’s growth in the Information Age. But the need for such space-based services is growing faster than the pace at which our government seems able to sate it, thus necessitating a larger collaborative effort.

The regulatory framework for space activities is defined by a combination of policies, procedures and guidelines of the Government of India. The salient ones among them are:

A policy framework for satellite communications in India (a SATCOM policy for short)
Norms, guidelines and procedures concerning allowing Indian parties to provide services, including up linking of TV signals with Indian satellites (SATCOM norms)
Remote Sensing Data Policy, 2011
The technology transfer policy of ISRO
What these policies and guidelines show is that between Antrix, ISRO and the Department of Space, the government appears to be an operator as well as a regulator, resulting in a virtual monopoly. This obvious conflict of interest was left unnoticed for a while, as space wasn’t an area of focus for the private sector. But now, with the emergence of private players, this is a concern. The discretion vested with the committees and bodies under the SATCOM norms don’t come with deadlines prescribed for authorizing the launch of satellite systems, nor is there an explicit policy framework for the exercise of such discretion – which potentially violates Article 14 of the Constitution. This has led to poor investor confidence and very little traction for a lot of space startups in the country (which do exist, by the way). And let’s not even get started about spectrum and orbital-slot allocations, which will likely continue to be victims of domestic and international bureaucracy. In short, pessimism is the order of the day for the industry.

While that’s the implication for the private sector, there’s an identifiable implication for the nation as a whole. A lack of rationalization in transponder leasing (a byproduct of the conflict of interest mentioned above); poor governance in the geographical information domain (or no governance, considering we’ve no known geographical information policy); the monopoly over remote sensing data generated by Indian satellites; and rigid tech. transfer policies pose not just financial losses to the government but also losses on the optimization front – from the way education is delivered to the masses to better urban planning. And this is besides the fact that we could generate employment and retain talent in India if we can ensure a lucrative space for the private sector in this area. Last but not the least, NASA and the European Space Agency have both demonstrated that innovation is better achieved through a robust engagement with the private sector, which hopefully will provide much needed fodder for our collective thought processes on the subject.

 

 

A REVOLUTIONARY ROAD AHEAD

So how can space legislation address these issues? To begin with, legislation – in the form of a law enacted by the Parliament – enjoys a level of stability that a policy or guideline can never achieve. That by itself will demonstrate the fact that the country has the vision to back up its capacity. It will of course have to answer whether or not we are serious about giving opportunities to entrepreneurs who were provoked into dreaming about opportunities in space by our own space agency’s achievements.

Should we intend to respond positively, then the legislation will have to make some radical changes. First, it must separate the regulatory functions of the Department of Space and ISRO, and vest the functions with an independent body. And this body must not only determine applications for launch of space assets but also the management of derivatives of the Indian space program and its initiatives. It must provoke the question of whether ISRO must focus exclusively on what its key strengths are – research and innovation – and leave the burden of day-to-day operations for the private sector to leverage. The need to address these topics is urgent as a legislation either enabling or disabling private participation of space activities will, if nothing else, provide closure to the young people dreaming about making a livelihood by taking India to infinity and beyond.

Finally, there are some ancillary issues: liability for space debris, national responsibilities for monitoring space activities arising out of its territory or its mandate, cross waivers in case of failures during launch of payloads into space, and so forth. These questions must be addressed parallel to the question of whether we must allow an industry to surface in the Indian space domain at all. Then again, we must also remember that as more of Earth’s resources are depleted, and as we struggle to figure out how to address the problems of the future, the answer lies with a good space law. Falling behind in this race could threaten the country’s prestige as well as our ability to safeguard the security of our descendants in a way that our current Weltanschauung cannot fathom. As our Parliament enters into its next session, one hopes that the needs of the future and the spirit of adventure will drive space policy as opposed to – in the words of V from V for Vendetta – the security of the familiar and the tranquility of repetition.

 

Privy Council : An Overview

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Privy CounciINTRODUCTION

If we overview the history of Indian Legal System, it clearly reveals that the Indian Legal System is more or less based on the English Legal System. In fact, the systematic development of Indian judicial institutions, judicial principles, laws etc. has occurred during British regime itself. Besides this, the British regime in India has also developed a hierarchical judicial system in India. Accordingly, the highest judicial authority was conferred on a body of jurists, popularly called as ‘Privy Council’. It has played a significant role in shaping the present legal system in India. The same is discussed as under.

 

Origin and establishment of Privy Council

As it is an accepted fact that, every political system develops for itself a certain sort of legislative, executive and the judicial machinery for its smooth working and administration. Establishment of Privy Council was with the same objective. The Privy Council was  the judicial body, which heard appeals from various courts of the British colonies including India.

The origin of Privy Council can be traced back to the Norman Period of English. At the beginning of 11th century, the Normans introduced a Central Government in England for controlling their executive, legislative as well as judicial Departments. There was a Supreme Federal Council of Normans. It was known as ‘Curia’ and it acted as the agency of Normans to rule England. Through it the whole administration in England was controlled. However, gradually with the passage of time, Curia gets divided into ‘Curia Regis’ and ‘Magnum Concillium’. Out of them, Magnum Concillium was to deal with executive matters whereas Curia Regis performs judicial functions.

The Curia Regis was a small body consisting of high officials of the State, members of the Royal household and certain clerks chosen by the Crown itself. Their duty was to advice the King in matters of legislation and administration and to deliver a justice. In fact, the Curia Regis acted as a final Appellate Court for England and English Empire. Gradually, the Curia Regis came to be considered as the advisory body of the King performing most of the vital functions in the field of judicial administration. Finally, during the regime of Henry II, there was a tremendous increase in the Judicial Functions of Curia Regis and it lead to the formation of two different Common Law Courts in England. They are:

1.      King-in-Parliament i.e. Court of House of Lords

2.      King-in-Counsel i.e. Court of Privy Council.

The former became the highest Court of Appeal for the Courts in England while the later acted as the highest Court of Appeal for all British Possessions and Settlements beyond the seas. In this way, the Privy Council was established during the middle of 16th century. It thus acted as the advisory body of the King with regard to the affairs of the State. Headquarter of the Privy Council was at Landon and its powers were implemented through the means of royal proclamations, orders, instructions etc.

 

Composition of Privy Council

As far as India is considered, the Privy Council acted as an appellate body since 1726 with the establishment of Mayor’s Court in India. Earlier, the Privy Council used to do its work by means of a system of committees and sub-committees. However, the committees did not have permanent existence and membership and mostly members were the persons with little judicial experience. Naturally it affected the administration of justice. In 1828, Lord Bourgham criticized such a constitution of Privy Council keeping in view the extent and importance of the appellate jurisdiction of Privy Council. Subsequently, in 1830 he became the Lord Chancellor and during his regime, the British Parliament enacted the Judicial Committee Act, 1833 in order to reform the constitution of Privy Council. In this way, officially the Privy Council was created on 14th Aug. 1833 by the Act of the Parliament. The Act empowered the Privy Council to hear appeals from the courts in British Colonies as per the provisions of the Act. Accordingly under this Act, the quorum of judicial committee of Privy Council was fixed to be four. It composed of Lord President, Lord Chancellor and other Chancellors holding judicial offices. This quorum was reduced to three in 1843. The recommendations to the Crown were given by the majority of quorum. Thereafter, by means of the Appelate Jurisduction Act, 1908 this membership of the judicial committee was extended. It also empowered His majesty to appoint certain members not exceeding two. These were nothing but the judges of High Court in British India. Thus some of the members of the Privy Council were the persons versed in Indian Laws.

 

Appeals from Courts in India to the Privy Council

 

This can be discussed under following sub-headings.

a)    Charters of 1726 and 1753

In the Indian Legal History, the Charter of 1726 granted the right to appeal from the Courts in India to Privy Council. The said Charter established three Mayor’s Courts at Calcutta, Madras and Bombay. The provision was made as to first appeal from the decisions of Mayor’s Court to the Governor-in-Council in respective provinces and the second appeal from to the Privy Council in England. Where as the Charter of 1757, which re-established the Mayor’s Courts reaffirmed the said provisions of Appeal to Privy Council from Mayor’s Courts.

 

b)     The Regulating Act, 1773

This Act empowered the Crown to issue a Charter for establishment of Supreme Court at Calcutta. Thus the Charter of 1774 was issued by the Crown to establish a Supreme Court at Calcutta and it abolished the respective Mayor’s Court. Section 30 of this Charter granted a right to appeal from the judgments of Supreme Court to Privy Council in Civil matters if following two conditions were followed;

i.            Where the amount involved exceed 1000 pagodas

ii.             Where the appeal is filled within six month from the date of decision.

In the same way, the Act of 1797 replaced the Mayor’s Court at Madras and Bombay with the Recorders Court and provided for direct appeals from these Courts to the Privy Council. Thus the right to appeal from King’s Court to Privy Council was well recognized. Besides this, there were Company’s Court i.e. Sadar Diwani Adalat and Sadar Nizamat Adalat. They also recognized the right to appeal to the Privy Council from their decisions. Accordingly the Act of Settlements, 1781 provided for right to appeal from Sadar Diwani Adalat at Calcutta in Civil matters.

 

c)     Appeals to Privy Council from High Courts

Under the Indian High Courts Act, 1861 the high Courts were established at three Provinces. It was the amalgamation of King’s Courts and Company’s Courts. This Act provided for the right to appeal from High Courts to Privy Council from all of its judgments except in Criminal matters. In addition to this, there was a provision of Special leave to Appeal in certain cases to be so certified by the High Courts.

 

d)    Appeals from Federal Court in India to Privy Council

The Government of India Act, 1935 provided for the establishment of Federal Court in India. The Federal Court was given exclusive original jurisdiction to decide disputes between the Center and constituent Units. The provision was made for filing of appeals from High Courts to the Federal Court and from Federal Court to the Privy Council. The Federal Court also had jurisdiction to grant Special Leave to Appeal and for such appeals a certificate of the High Court was essential.

 

e)     Abolition of jurisdiction of Privy Council

In 1933, a white paper was issued by the British Government for establishment of the Supreme Court in India so as to here appeal from Indian high Courts. It was the first step in avoiding the jurisdiction of Privy Council. After Indian independence, the Federal Court Enlargement of Jurisdiction Act, 1948 was passed. This Act enlarged the appellate jurisdiction of Federal Court and also abolished the old system of filing direct appeals from the High Court to the Privy Council with or without Special Leave. Finally in 1949, the Abolition of Privy Council Jurisdiction Act was passed by the Indian Government. This Act accordingly abolished the jurisdiction of Privy Council to entertain new appeals and petitions as well as to dispose of any pending appeals and petitions. It also provided for transfer of all cases filed before Privy Council to the Federal Court in India. All powers of the Privy Council regarding appeals from the High Court were conferred to the Federal Court.

Thereafter with the commencement of the Constitution of India in 1950, the Supreme Court has been established and is serving as the Apex Court for all purposes in India. It hears appeals from all the High Courts and Subordinate Courts. With this the appellate jurisdiction of the Privy Council finally came to an end.

 

Role of Privy Council

The Privy Council has contributed a lot in development of Indian Legal System. It served a cause of justice for more than two hundred years for Indian Courts before independence. As far as the judicial institution is concerned, the Privy Council was a unique and unparallel among all the Courts round the world. It set the task of ascertaining the law, formulating legal principles, molding and shaping the substantive laws in India. It also helped in introduction of the concept of ‘Rule of Law’, on which we have setup the whole philosophy of our ‘Democratic Constitution’. Besides the Privy Council also lead to the introduction of Common Law in India, which forms the basis almost all present Indian laws.

The contribution of Privy Council in personal laws like Hindu Law and Muslim Law is also noteworthy. It acted as a channel, through which English legal concepts came to be assimilated with the body and fabric of the Indian law. it always insisted on the maintenance of the highest standards of just and judicial procedure, especially in the field if criminal justice. In this way; the decisions of Privy Council have enriched the Indian jurisprudence in many respects. Its contribution to the statute law, personal laws, and commercial laws is of great importance. Thus during the period of 1726-1949 and specifically after 1833 and onwards, the Privy Council has played a magnificent role in making a unique contribution to Indian laws and the Indian Legal System. The fundamental principles of laws as laid down by the Privy Council are considered as path finder for the Indian Courts still today.

At present also, the Privy Council command a great respect among Indian lawyers, judges as well as Indian public as the highest judicial institution. Some of the principles laid down by the Privy Council are still followed by the Supreme Court of India. The view taken by the Privy Council is binding on the High Courts in India till the Supreme Court has decided otherwise. One of such instance can be given in the form of ‘principle of absolute liability’ as propounded by the Supreme Court in the historic olieum gas leak case. Thus as a whole, the contribution of Privy Council is considered as remarkable for the development of Indian Legal System and Indian Judicial Administration. It has played a great unifying role in shaping divergent laws in India.

Drawbacks of Privy Council

In spite this contribution of Privy Council, it suffered from following drawbacks: –

 

1)      For long, it was staffed by Englishmen only, having no knowledge of Indian laws.

2)       The location of the Privy Council was in England far away for common man in India making it disadvantageous.

3)       The subjection to the jurisdiction to foreign judicial institution i.e. the Privy Council was considered as a symbol of slavery.

4)       All this put the poor man in India in difficult situations for seeking justice.

 

 

 

CONCLUSION

From the above discussion, it reveals that the Privy Council has rendered a meritorious contribution in the development of Indian legal system and judicial institutions. It introduced many fundamental legal principles in Indian legal system. It shaped the judicial institutions in India. As a whole its role is very significant in developing the legal system in India as it exists presently.

 

Khap Panchayats : An Overview

Posted on | by Prashanti Upadhyaya | Leave a Comment on Khap Panchayats : An Overview

Khap PanchayatsINTRODUCTION

In India, the Panchayati Raj system was introduced with the aim of decentralization and democratization.  Yet there remain certain mysteries.  Khap Panchayats, the self proclaimed courts of caste lords in a village, enjoy full legitimacy and authority among the section of their caste as custodian of honour.  It is through them that most regressive views are sought to be implemented.  It is very distressing to note that in times when people chat via 3G technology, Indian society has regressed to the Dark ages.

What Ambedkar prophetically said in the year 1948 is the currently the state of affairs in India’s villages where institutions such as Khap/Caste panchayat not only exist and flourish but also being nurtured by political class of our country.  Villages in India forms the social unit if society which requires profound social change.  However, the Indian society in general and its countryside in particular, as it today never witnessed the unfolding of process of enlightenment.  The project of enlightenment in this country was a nonstarter from the day one.  Hence, as the consequence we will see continuance of these caste panchayats to follow a certain code which is unwritten law for them, through which they save and defend their honour and so called culture.

Khaps panchayats are active in various states of the country especially Haryana.  Khaps of these states are notorious for their outlandish edicts like declaring married couples siblings, ostracising families and such other atrocious acts.  The reason behind all these atrocious verdicts is to save the so called honour and culture of the society.  The Question here arises: who are Khap Panchayats? Who gave them right to kill in the name of honour…?  These Khaps are an affront to human rights along with social evils like dowry and child marriages and need to be dealt strongly as possible just the country fight naxals or ultras.

 

What Is Khap Panchayat?

Panchayat actually implies gathering of five reasonable and regarded older folks picked and acknowledged by the town group. Normally, some relentless and effective persons, were pressured open accord and with no race assemble together and announce themselves ‘the lord of the station’, in this way constituting the standing panchayats.

The “Khap” is an old idea which has composed references found once again from the Apparatus Vedic times. There are fundamentally social-political gatherings, which as a rule contain the upper rank and elderly men who are united by topography and standing. The word Khap is most likely gotten from Latin word “corpus” which implies an association of person. Subsequently khap is a term for a social political gathering and utilized as a part of land sense.

Khap was an arrangement of social organization and association in the republics of North-western states like Haryana, Uttar Pradesh and Rajasthan in India since old times. The Khap comprised of a unit of 84 towns.

 

Method of reasoning Behind Khap Activism:

The reason overseeing these khaps is that diverse social orders have distinctive traditions or arrangement of preclusions, as per which a male or a female can’t have marriage with another male or female of other rank. They take after the tenet of endogamy-it implies the guideline confining marriage to individuals from the same tribe, town, standing, sub-position or other social gathering. A great many people believe that position framework is a static unbending component of Hindu society and it can’t change. This sort of intuition offers quality to the arrangement of khap panchayats in our general public.

 

Origin of Khap Panchayat:

The precise source of khap panchayat is till date not known but rather is accepted to begin in 600 AD. In antiquated times, amid the time when man was carrying on with a traveling life, towns are being shaped at a fast rate and man was heading towards human progress and better ways of life. All through the most recent few thousand years the general public of the Indian sub mainland, was composed in different structures, tribal town, and monarchical or republican the method of representing was that of a gathering of five, which in time was known as a Panchayat. Various towns bunch themselves into a Gohand. Various Gohands framed a “Khap” and number of Khaps shaped a ‘Sarv Khap’ grasping full area or state. Henceforth the Sarv Khap Panchayat spoke to all khaps. The individual khap would choose pioneers who might send appoints, who might speak to the Khaps at the Sarv Khap level. It was political association, made out of the considerable number of groups, groups and positions in the area.

Fundamentally these are the legacies of the tribal chambers, framed by different tribes with motivation behind encouraging determination of intra-tribal debate and between tribal intercourse. Prior these khaps are accepted to have been multi-rank. However, right away they have been simply a Jat foundation. These khaps by and large comprise of intense components of the predominant rank. They have awesome hold both at the neighborhood and common levels.

 

Source  Of Khap Panchayats:

As indicated by Ranbir Singh in his article, the accompanying entries might be made for the wellsprings of quality of khaps:

1)      The principle mystery quality of the khap panchayats is the perseverance of solid family relationship emotions among different tribes.

2)       Pervasiveness of the idea of seem- simli i.e. the idea of brotherhood (fellowship) among the families living in neighboring towns and in addition among various gotras living in the same town.

3)       Nobody raises the voice against the decision of khaps as they likewise are agreeable to the decision.

4)       The shortcoming of Panchayati Raj establishments is likewise in charge of the proceeded with quality of the khaps.

5)      The transformation of khap panchayats into vote banks has likewise made them basically unchallengeable.

6)       All the major political gatherings have been hesitant to raise their voices against them.

 

Some Realities of Khaps

There are some realities of khap can be found in a considerable lot of the structures which are being forced on the general population. These include:

 

1. Honor Executing:

Practically in all daily paper there is if not more than one news is of honor slaughtering where relatives of young lady executed both kid and young lady for wedding in the same sub-standing. Presently the inquiry emerges: What is honor Killings? There is no particular meaning of honor slaughtering. Notwithstanding, these “honor killings” are murder dedicated by relatives and the general population fitting in with the concerned station/class of relatives why should accepted have brought disgrace and disrespect on the family name. Another stark the truth is that the greater part of the honor killings have been accounted for from those zones where khap panchayats are more dynamic. These slaughtering are given shape by the merciless tenets of khap framework, which brings away their lives with uncouth fierceness. Individuals living in a khap are not permitted to wed in same gotra from the same town. The method of reasoning behind this, they contend is that individuals having a place with same gotra are accepted to be from the same faction or family heredity and subsequently siblings and sisters. Yet, there is awesome oddity included here. A late study charged by NCW, which was led by NGO Shakti Vahini uncovered that 72% of the 326 instances of honor violations were indeed between rank relational unions, while same gotra relational unions were just 3 percent. In all actuality, honor slaughtering is the result of conflict in the middle of convention and innovation and that’s it.

By making the false impression that all relational unions of decision between youthful couples are depraved, what khaps are really restricting is the privilege to pick marriage accomplice. Among a few examples of khap issuing fatwa’s, not a solitary one was an intra-gotra marriage, yet wedded couples were announced kin, and their families made to endure blacklists. As couples are specifically focused on, it is clear the genuine thought process is to control ladies’ sexuality to guarantee that property stays inside of the patriarchal station space.

 

2. Constrained Marriage:

A marriage performed by pressurizing one or both the gatherings and without their through and through freedom and full agree is thought to be a constrained marriage. Khaps frequently requested marriage between two grown-ups fitting in with same town or gotra as illicit and constrained female partner to wed other individual who has a place with various gotra. It is thought to be a type of aggressive behavior at home. In any case, regardless of expanding number of such cases society, police and law is turning a visually impaired eye to such episodes. Individuals falling prey to such constrained relational unions need to experience both mental and physical torment.

As of late one more decree issued by the khap panchayat of Uttar Pradesh town which assist insult effectively corrupted picture of khap panchayats. As per their announcement, ladies who are underneath 40 years old ought to make negligible utilization of mobiles furthermore banned affection marriage. This decree made waves all through the nation furthermore voices are raised about what is lawful legitimacy of such proclamation issued by alleged khap panchayat. These sorts of announcement make suspicion in our psyche whether we are truly living in 21st century.

 

 

Mahyem By The Khaps:

An expanding number of instances of honor killings have demonstrated reality of solid impact of khap panchyats on the Indian attitude. These infamous khap panchayats enjoyed wrongdoings by persuading individuals on how the demonstration of their kids conveyed disfavor to their families and what they need to do to ensure the honor of their gang. There are numerous occurrences of honor killings which are said to be incited by the choices of khap panchayats. Some of them are:

 

Mehrana Murdering Of 1991:
Mehrana (named after town in UP) murdering of 1991 is the principal significant episode pulled in consideration. A Jat working class young lady of the town named Roshini stole away with Jaatav (past untouchable rank) kid named Vijendra. One of the companions of the kid helped them. The town individuals got every one of the three. Town Khap panchayat requested to hang them with tree and blaze them. In the morning the request of the alleged panchayat was executed and the majority of the three were blazed alive to death before the entire town.

Manoj-Babli Murder Case: 

The Manoj-Babli murder case has set up point of reference in the field of honor executing. It was the situation of honor executing of Indian love bird Manoj-Babli in June 2007 and the progressive court case which verifiably sentenced charged for a honor slaughtering. The executing was requested by a khap panchayat of the Karora town in Kaithal area, Haryana.

The khap panchayat’s decision depended on the presumption that Manoj and Babli fit in with the Banwala gotra, a Jat group, and subsequently thought to be kin in spite of not being specifically related and any union between would be invalid. In any case, the couple proceeded with their marriage, taking after which they were stole and murdered by Babli’s relatives.

In Walk 2010 a Karnal area court sentenced the five culprits to be executed, the first run through an Indian court had done as such in a honor slaughtering case. The Khap head who requested yet did not participate in the killings got a lifelong incarceration, and the driver included in the kidnapping a seven year jail term.

 

Murdering Of Ved Pal And Sonia :
Another peculiar case including honor murdering was instance of Ved Pal and Sonia. Ved Pal who is a therapeutic specialist used to run a center inverse Sonia’s home. They experienced passionate feelings for one another. Both Ved Pal and Sonia realized that they had a place with various gotras and there was no between position wedding between them as both fit in with the same station, “Jat”. So the couple did not imagine that as a result of their wedding, they had brought on any disrespect to their families by wedding one another.

In any case, who realized that the unsafe mix-up Ved Buddy really made was getting hitched to his very own lady decision, who was from a connecting town. What them two did not know was the way that as indicated by the Jat convention of medieval times, individuals who lived in connecting towns or towns which share limit, were thought to be having a place with the same group, independent of the certainty to which gotra they have a place. Marriage between a kid and a young lady from abutting towns is subsequently against the khap manages, and denied by the panchayat, and in this way thought to be a wrongdoing. As an outcome khap panchayat requested to execute Sonia and Ved Buddy as they have conveyed shame to their separate ranks.

At long last one day when Ved Buddy went to his in-laws to bring back his wife, he was hanged by the swarm of the town disregarding the way that he was given police assurance. In this manner even a court arrange and outfitted police security couldn’t help Ved Buddy in recovering her wife home, or even spare his own life from the rage of the merciless supporters of khap guidelines.

 

The Instance Of Honor Murdering Of A Columnist, Jharkhand  
In April 2010, in Jharkhand, even a lady columnist has turned into the casualty of savage homicide for the sake of honor. Nirupama, a 22-year writer, who originates from a Brahmin family, experienced passionate feelings for a kid from another station and therefore, was ruthlessly killed for the sake of the honor.

 

Spreading Its Limbs In South India: The Instance Of Sivakumar And Megala, Tamil Nadu
The threat of honor killings under the weight of these khaps has spread its limbs all over India. In Shiva ganga, Tamil Nadu, a 20 year old young lady Megala was informed that she couldn’t wed her sweetheart, 24 year old Sivakumar as they were connected thus her family got their little girl wedded elsewhere in June, 2010 from where she absconded with her mate. The couple was at long last followed by the family and Sivakumar was pitilessly executed with sickles.

 

Khap Panchayat And Indian Legal system

Understanding the degree and frequencies of the acts of neglect and monstrosities perpetrated by Taliban-styled standing courts, the Indian legal by its impedance, to some degree put brakes on their working.

In Smt. Laxmi Kahhwaha versus The Condition of Rajasthan, an Open Interest Suit (PIL) was documented in the Rajasthan High Court, drawing the consideration of the court to illicit administrations of position panchayats on the weaker segment of the general public, particularly on ladies. The court watched that these panchayats had no locale at all to pass social blacklist, or force any fine on anybody and to disregard the essential privileges of a person.
In the case of UP versus Krishna Master,our Peak court made a phenomenal move by recompensing life sentence to the three blamed for the honor executing who killed six persons of a gang. The Seat further watched that wiping out verging on whole family on the feeble ground of sparing the honor of the family would fall inside rarest of the uncommon cases advanced by this court…. … this was repeated in Bhagwan Das versus State (NCT of Delhi) where the zenith court opined that all persons why should arranging execute honor slaughtering ought to realize that the scaffold anticipate them.
3. In Manoj And Babli Murder case, five of the seven convicts was sentenced to life detainment by the Punjab and Haryana High Court.

 

4. In Sujit Kumar versus Condition of UP, Allahabad High Court noticed that in our mainstream and liberal nation what to a great degree irritating is that the police and different powers don’t appear to find a way to check these dishonorable and primitive acts.

 

5. In the famous instance of Armugam Servai versus State of Tamil Nadu, the SC watched that Khap panchayat frequently announce or support honor killings or different outrages in an organized route on such young men and young ladies, who wish to get hitched or have been hitched, or meddle with the individual existences of individuals. This is completely illicit and must be savagely stamped out. The court termed Khap panchayats as Kangaroo courts and pronounced them unlawful.

 

WHAT THE LAW SAYS?

There is no specific law in India which deals with gruesome act of honour killings and any punishment regarding the same.  There are treated as murders under the provision of IPC as it is not a crime specified separately under the laws and no data about this crime has been collected by the National Crime Records Bureau. Apart from that, the most shameful situation emerges at that moment when the FIR’s were not being registered in such cases, and even the cases pursued, their conviction rate is very low.

 

THE GOVERNMENT READY FOR TOUGH LAW AGAINST KHAPS

To curtail this kind of killings, Central Government has made its view clear that it is coming out with a new legislation.  Under the proposed law, members of the khap panchayats or the victimsfamilies, if their action results in the death of the person or persons who feel went against the tradition or the wishes of khap will be punishable with sentence of death or life imprisonment.  In such cases, the entire panchayats will be held responsible.

 

For this purpose, the draft bill intends to append a new clause to Section 300 of the IPC.  It also intends to amend Indian Evidence Act and the Special Marriage Act, which would eliminate the provision for the mandatory 30-day notice period for marriages, intended to be solemnized under the Act.  The new bill is also expected to introduce a definition of honor killing for treating it as special crime and ensuring clarity for the law enforcement agencies.

 

However, it is distressing to note that in spite of such encouraging developments, the evil has not been checked efficiently.  In reality, the system itself supports barbarism.  The law has failed tremendously in curbing such nasty practices.  Although, the judiciary has played an active role, yet there were instances in the past where court orders have been ignored and protested against.

 

Thus, the urgent call is to pass stern laws, enforce them rigorously and punish the offenders deterrently so that electric shock in the idea of Jean Hampton ever flows in the nervous and circulatory systems of “Khap panchayats” and of the deaf and dumb civil society member there over.

 

CONCLUSION AND SUGGESTIONS

In the end of this discussion, I only find one solution to eradicate this social evil i.e. combined effort should be made by various modern and formal institutions of our country like Panchayati Raj, Judiciary, Police and the larger state.  But above all, this deep rooted and thriving cactus’s destruction requires people to wake up.  They should stop following the irrational norms laid down by Panchas.  Education and awareness of the people are very necessary.

But in spite of various efforts made by our government and judiciary, the culture of honor killings continue unabated.  The reason is simple. Even the law enforcement agencies strike a conciliatory note as there is hardly any case reported or action against these perpetrators of injustice.  Moreover, police and political figures have their vested interests in its continuance.

So the answer of the above discussion comes with balancing the human values of liberty and equity without the uncivilized moral degradation of public based on neo-liberalism.  There is need for healthy norms along with some stringent legal measures that can come to power only through some new social reforms. Therefore, in addition to other effective way-outs, the government and social organizations would have to resort of changing the mindset of people.  As it is more than a law and order problem; it is a social evil!

Traditionally, caste panchayats have played a powerful role.  As they are not elected bodies, their decisions are not enforceable by law but their terror will continue unless they are banned.  Hence, the only possible solution to the problem is to banish the khaps from India.  It is imperative to punish the responsible people harshly in order to prevent cultural and religious practices that are derogatory in nature and violate human rights and dignity.  Killing the crimes in the name of the honor can be calculated as cold-blooded murders, and its ghastly practice amounts to grave violation of human rights.

In light of the above discussion, following suggestions are submitted:

First of all, there should be a uniform definition of honor killing so that there is no room left for ambiguity as to what constitutes crime.
Indian Parliament is required to enact a new legislation at the earliest for curbing the menace of unconstitutional khap panchayats.
Any person convicted under such law should also be debarred from contesting any election for lifetime.
Special fast track courts should be constituted for handling cases of honor killings.
There should be amendment in the Evidence Act in order to shift the burden of proof on accused, thereby making him responsible to prove his innocence in the event of honour killing.
Amendment in the IPC should be made to insert a new section for defining the crime of honor killing and prescribing punishment for the same.
Last but not the least, the Government of India should remember its obligations and commitment to protect its citizens from such violence under CEDWA.

Critical Analysis of Rights and Controls of Broadcasting in India

Posted on | by Prashanti Upadhyaya | Leave a Comment on Critical Analysis of Rights and Controls of Broadcasting in India

 

Broadcasting Media is the best and critical wellspring of information to the general population, we called it as a fourth mainstay of the popularity based country. Most moment and viable method for production and dissemination of news are Television slots, which now-a-days overcome by focused business sector in the field of media TV. With the improvement of correspondence innovation and open enthusiasm for huge different Television slots developed as the aggressive business in Indian TV media.

 

TV media is one of the latest concept in the field of broadcasting media.

At beginning to TV, as right on time as in 1980’s just Doordarshan, which was state own TV media was accessible, yet over the span of innovative advancements TV media changed over into substantial number of private TV slots which now accommodate the TV of different news reports and other stimulation programs for 24 hours relentless administration.

In 1990’s 24 hours News channels gave news to the Indian group of onlookers or Indian people groups in Hindi, Marathi, English and numerous more local dialects gave the proceed with administrations. Presently in 2000 there is part off focused business sector in news media scope and they gave each second news to better capability, they gave the consistently news of happening of occasion and government working. The legislature for the regulation of the TV they firstly endeavor to direct the non-government telecast media concentrated on link administrators came about into link The Telecom companies (Regulation) Act, 1995.

Regulation is required as there is the rise of substantial number of rivalry to spare from the unapproved and unlawful utilization of media. The television develops as one of the most important Fundamental Rights given in Part III read with Article 19 of the Indian Constitution. It gives the privilege to discourse and expression which straightforwardly mirror the privilege to distribution and flow of ones own perspectives in people in general with specific limitations which are given in the Article 19(2). The right to speak freely and Expression extensively implies suppositions and claims feeling communicated by words, mouth, compositions, printings, pictures or whatever other method of correspondence. It incorporates the statement of one’s thoughts through any transferable media or obvious representation, which additionally called TV. The flexibility of engendering of thought is secured by opportunity flow.

Its methods each resident has right to show his article, book, painting and own perspectives through different television media like T.V. channels, FM radio, news papers, magazine, portable systems and so on. This privilege is likewise managed by Incomparable Court through its different choices additionally has amplify the extent of the right to speak freely also, expression. One of the critical choices identified with production is LIC of India v. Manubhai D. Shah . For this situation it was held that the LIC magazine is directed by open asset and along these lines its refusal to distribute the respondent’s reply was uncalled for and preposterous and self-assertive and was violative of Article 19(1) (a) of the Indian Constitution.

In another historic point judgment of Secretary, Ministry of Information and Broadcasting v. cricket Association of Bengal, all things considered the Preeminent Court held that the Privilege to The right to speak freely and Expression incorporates the privilege to broadcast and show the matches and this privilege has a place with the association, which can’t be meddled by any one. The association is allowed to pick any offices or TV media, which it supposes fitting to broadcast the matches.

Television media must be under control of open. In area mark judgment conveyed in the year 1995 it was held that, the basic role of all TV media is just for people in general hobby. Aviation routes frequencies are the general population property.

Their utilization must be controlled and directed by open power in broad daylight enthusiasm to keep the intrusion of this privilege.

This media gave the dissemination and dispersion of news and perspectives straightforwardly into people in general everywhere, it is differ risky to wellbeing and security of country and in addition open profound quality any foul and outrageous proclamation will influence the peace and security of the state or society, with the goal that it must be directed and controlled over television media.

 

Illustration: –

26/11 assault of Mumbai at hotel Taj. Amid that assault, media show live scope of each activity of the Indian guard side and live development of Taj which thusly helped the terrorist to known the each arrangement of the Administration which postured danger to security of State.
At the highest point of the chain of command of control of the TV media is the Service of Data and TV, which manages the TV through different principles and regulations. Service of Data and Television controls through its sub powers for the viable system to manage TV. In which there is Prasar Bharti for television and censer board to direct movie in India, under which there are numerous associations which control TV media in local levels. In late improvement to control telecaster from unauthorized and uncensored Broadcasting is Broadcasting Content Complaint Council (BCCC) under control of Indian Broadcasting Federation (IBF). This power gets the objections from the general population against uncensored seen on TV station and rebuffs to those Television slots who violet the guideline.

Television is a piece of right to the right to speak freely and expression gave by Article 19(1) of the Indian Constitution and different Incomparable Court choice like Secretary, Ministry of Information and Broadcasting v. Cricket Association of Bengal. Through this judgment, the Incomparable Court gave that, the Air space is not the imposing business model of the Administration; it is utilized for open hobby. Like astute numerous choices of the Incomparable Court give that the television media is ideal for open hobby.

In any case, because of the opposition in the television showcase the Stations are huge in number and attempt to contend with one another, so they are utilized to Telecast uncensored scenes and unapproved scene likewise the scenes, which hurt the security of the country. Consequently there must be an appropriate regulation and control over television media through compelling system.

 

MANDATE OF THE MINISTRY OF INFORMATION AND BROADCASTING

  • News Services through All India Radio (AIR) and Doordarshan (DD) for the people
    Development of broadcasting and television.
    Import and export of films.
    Development and promotion of film industry.
    Organization of film festivals and cultural exchanges for the purpose.
    Directorate of Advertising and visual publicity DAVP
    Handling of press relations to present the policies of Government of India and to get feedback on the Government policies.
    Administration of the Press and Registration of Books Act, 1867 in respect of newspapers.
    Dissemination of information about India within and outside the country through publications on matters of national importance.
    Research, Reference and Training to assist the media units of the Ministry to meet their responsibilities.
    Use of interpersonal communication and traditional folk art forms for information/ publicity campaigns on public interest issues.
    International co-operation in the field of information & mass media.

CRITICISM AND CONTROVERSIES

The Ministry has often been criticized for the actions of the various bodies under it:

Arbitrary actions taken in the past to ban television channels which ostensibly showed explicit scenes, as well as actions taken to ban general use websites like Yahoo Groups, have been criticized.[1] [2]
All India Radio is the only radio broadcaster allowed to broadcast news within India, though this is likely to change with the recommendations of the TRAI.[3]
The Ministry of Information and Broadcasting asked the media not to air a controversial documentary by BBC about rape in India.[4]
The ministry has been criticized in its role of the way it has handled the FTII strike.
CONCLUSION

TV media is the developing business sector in the TV television media there for it rivalry is expansion step by step that extraordinarily influence people in general ethical quality and security of state by TV uncesor scene and unapproved which is damage to security of state for this it must be direct and controlled. Thought it is correct developed under the Article 19 of the India constitution yet it must direct through viable enactment. Present enactment and power are not compelling as to control TV media.

 

 

BIBLIOGRAPHY

1)    “Outrage over India Yahoo ban”. BBC News. 29 September 2003.

2)    AXN says sorry for ‘obscene’ TV

3)     “Let private FM radio stations air news: Trai”. The Times Of India. 23 February 2008.

4)    “India: Rape documentary excerpts ‘incite violence against women'”. CNN. 4 March 2015. Retrieved 4 March 2015.

[1] “Outrage over India Yahoo ban”. BBC News. 29 September 2003.

[2]  AXN says sorry for ‘obscene’ TV

[3]  “Let private FM radio stations air news: Trai”. The Times Of India. 23 February 2008.

[4] “India: Rape documentary excerpts ‘incite violence against women'”. CNN. 4 March 2015. Retrieved 4 March 2015.

Bar Council of India

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Bar Council of IndiaINTRODUCTION

The Bar Council of India is a statutory body that regulates and represents the Indian bar. It was created by Parliament under the Advocates Act, 1961. It prescribes standards of professional conduct, etiquettes and exercises disciplinary jurisdiction over the bar. It also sets standards for legal education and grants recognition to Universities whose degree in law will serve as a qualification for students to enroll themselves as advocates upon graduation.

 

Section 4. Of the Bar Council of India provides-

1.    There shall be a Bar Council for the territories to which this Act extends to be known as the Bar Council of India which shall consist of the following members, namely: –

 

a)      the Attorney- General of India, ex officio;

b)      the Solicitor- General of India, ex officio;

c)      one member elected by each State Bar Council from amongst its members.

 

Section 4(1-A) of the Act makes it clear that no person shall be eligible for being elected as a member of the Bar Council of India unless he possesses the qualifications specified in the proviso to sub- section (2) of section 3.

Section 4(2) of the Act provides that there shall be a Chairman and a Vice- Chairman of the Bar Council of India elected by the Council in such manner as may be prescribed.

Section 4(2-A) of the Act makes it clear that a person holding office as Chairman or as Vice- Chairman of the Bar Council of India immediately before the commencement of the Advocates (Amendment) Act, 1977 (38 of 1977), shall, on such commencement, cease to hold office as Chairman or Vice- Chairman, as the case may be:

Provided that such person shall continue to carry on the duties of his office until the Chairman or the Vice- Chairman, as the case may be, of the Council, elected after the commencement of the Advocates (Amendment) Act, 1977 (38 of 1977), assumes charge of the office.

Section 4(3) of the Act provides that the term of office of a member of the Bar Council of India elected by the State Bar Council shall–

in the case of a member of a State Bar Council who holds office ex officio, be two years from the date of his election  [or till he ceases to be a member of the State Bar Council, whichever is earlier]; and
in any other case, be for the period for which he holds office as a member of the State Bar Council:

Provided that every such member shall continue to hold office as a member of the Bar Council of India until his successor is elected.

Section 10-A of the Act provides that The Bar council of India shall meet at New Delhi or at such other place as it may, for reasons to be recorded in writing, determine. A State Bar Council shall meet at its headquarters or at such other place as it may, for reasons to be recorded in writing, determine .The committees other than disciplinary committees constituted by the Bar Councils shall meet at the headquarters of the respective Bar councils. Every Bar Council and every committee thereof except the disciplinary committees shall observe such rules of procedure in regard to the transaction of business at their meetings as may be prescribed. The disciplinary committees constituted under section 9 shall meet at such times and places and shall observe such rules of procedure in regard to the transaction of business at their meetings as may be prescribed.

Section 10-B of the Act provides that an elected member of a Bar Council shall be deemed to have vacated his office if he is declared by the Bar Council of which he is a member to have been absent without sufficient excuse from three consecutive meetings of such Council, or if his name is, for any cause removed from the roll of advocates or if he is otherwise disqualified under any rule made by the Bar Council of India.

Section 14 of the Act provides that no election of a member to a Bar Council shall be called in question on the ground merely that due notice thereof has not been given to any person entitled to vote threat, if notice of the date has, not less than thirty days before that date, been published in the Official Gazette.

 

HISTORY OF THE BAR COUNCIL OF INDIA

After the Constitution of India was established on January 26, 1950, the Inter-University Board passed a resolution emphasizing the need for an all-India Bar and the importance of uniformly high standards for law examinations in different Universities. In May 1950, the Madras Provincial Lawyers Conference, held under the presidency of Shri S. Varadachariar, resolved that a committee appointed by the Government of India should evolve a scheme for an all-India Bar and amend the Indian Bar Councils Act such that it conforms to the new Constitution. On April 12, 1951, Shri Syed Mohammed Ahmad Kazmi, a Member of Parliament, proposed a bill to amend the India Bar Councils Act. The Government of India concluded that it was necessary for the Government to sponsor the Bill. In August 1951, a Committee of Inquiry was set up to consider the feasibility of a unified Bar in India, the continuance or abolition of the dual system of counsel for each state, possibility of a separate Bar Council for the Supreme Court and the revision of enactments related to the legal profession.

 

STRUCTURE OF THE BAR COUNCIL OF INDIA

The Bar Council of India consists of 18 Members. The Attorney General of India and the Solicitor General of India are Ex-officio Members of the council and the other 16 Members represent the 16 State Bar Councils in the country. The Members are elected for a period of five years and the Chairman and Vice -Chairman are elected for a period of two years from among the Members of the Bar Council of India. The Bar Council further consists of various committees viz., Legal Education Committee, Disciplinary Committee, Executive Committee, Legal Aid Committee, Advocates Welfare Fund Committee, Rules Committee and various other Committees formed to look into specific issues arising from time to time.

 

 

FUNCTIONS OF BAR COUNCIL OF INDIA

The Bar Council of India was established by Parliament under the Advocates Act, 1961. The following statutory functions under Section 7 cover the Bar Council’s regulatory and representative mandate for the legal profession and legal education in India:

1.       To lay down standards of professional conduct and etiquette for advocates.

2.       To lay down procedure to be followed by its disciplinary committee and the disciplinary committees of each State Bar Council.

3.       To safeguard the rights, privileges and interests of advocates.

4.      To promote and support law reform.

5.      To deal with and dispose of any matter which may be referred to it by State Bar Council.

6.      To promote legal education and to lay down standards of legal education. This is done in consultation with the Universities in India imparting legal education and the State Bar Councils.

7.      To recognize Universities whose degree in law shall be a qualification for enrolment as an advocate. The Bar Council of India visits and inspects Universities, or directs the State Bar Councils to visit and inspect Universities for this purpose.

8.      To conduct seminars and talks on legal topics by eminent jurists and publish journals and papers of legal interest.

9.      To organize legal aid to the poor.

10.   To recognize on a reciprocal basis, the foreign qualifications in law obtained outside India for the purpose of admission as an advocate in India.

11.   To manage and invest the funds of the Bar Council.

12.   To provide for the election of its members who shall run the Bar Councils.
The Bar Council of India can also constitute funds for the following purposes:

1.      Giving financial assistance to organize welfare schemes for poor, disabled or other advocates,

2.      Giving legal aid, and

3.       Establishing law libraries.
The Bar Council of India can also receive grants, donations, and gifts for any of these purposes.
With respect to the point 6, (stated above) the Supreme Court has made it clear that the question of importing legal education is entrusted to the Universities in India and not to the Bar Council of India. All that the Bar Council can do is to suggest ways and means to promote suck legal education to be imparted by the Universities and for that purpose it may lay down the standards of education. Sections 7 do not entitle the Bar Council itself to frame rules laying down pre-enrolment as Advocate.

In Raveendranath Naik v. Bar Council of India, the resolution passed by the Bar Council of India directing advocates not to participate in any programme organized by the Legal Services Authorities in any LokAdalat or any legal aid programme has been held illegal and void.
In Ex-Captain Harish Uppal v. Union of India, the court held that section 7 provides in respect of the functions of the Bar Council of India, but none of its functions mentioned in section 7 authorizes it to paralyze the working of the Courts. On the contrary it is enjoined with a duty to lay down standards of professional conduct and etiquette for advocates. No Bar Council can ever consider giving a call of strike or a call of boycott. In case any association calls for a strike or boycott the concerned State Bar Council of India must immediately take disciplinary action against the advocates who gives a call for a strike. It is the duty of every advocate to ignore a call of strike or boycott.
COMMITTEES OF BAR COUNCIL OF INDIA

The Bar Council of India has various committees that make recommendations to the Council. The members of these committees are elected from amongst the members of the Council.
The Advocates Act mandates the creation of a Disciplinary Committee (under section 9), a Legal Education Committee, and an Executive Committee (under section 10). Chapter III of the Bar Council of India Rules permit the Council to appoint from amongst its members, one or more committees in addition to those specified in the Act. The Council can delegate powers, duties, and functions to these committees.
The term of the members of the committees of the Council has been specified in Chapter III of the Bar Council of India Rules. A different term can be specified at the time of election.

 

1.    LEGAL EDUCATION COMMITTEE

The Legal Education Committee consists of five members of the Bar Council of India and five co-opted members to represent the judiciary, the Law Ministry, the University Grants Commission, and academia. This committee makes recommendations to the Bar Council of India on all matters pertaining to legal education in the country. The committee elects its own Chairman.

The Legal Education Committee has the power: –

Ø  To make recommendations to the Council for laying down the standards of legal education for Universities.

Ø  To visit and inspect Universities and report the results to the Council.

Ø   To recommend to the Council the conditions subject to which foreign qualification in law obtained by persons other than citizens of India may be recognized.

Ø  To recommend to the Council for recognition of any degree in law of any University in the territory of India.

Ø   To recommend the discontinuance of recognition of any University already made by the Council.

Precisely, Legal education matters within the Bar Council are regulated by the Legal
Education Committee, which consists of five Members of the Bar Council of India and
five Members co-opted from outside and they represent Judiciary, Law Ministry,
University Grants Commission and Academicians. This is a high-powered committee
which makes recommendations to the Bar Council of India on all matters pertaining to
Legal Education in the country. The Legal Education Committee elects its own Chairman.

 

2.    DISCIPLINARY COMMITTEE

The disciplinary committee of the Bar Council of India hears applications for revision by persons against summary dismissal of their complaints against advocates for professional misconduct, by the State Bar Councils.
Appeals lie before the Bar Council of India against orders of the disciplinary committees of the State Bar Councils. Every such appeal is heard by the disciplinary committee of the Bar Council of India, which may pass an order, including an order varying the punishment awarded by the disciplinary committee of the State Bar Council.
Each disciplinary committee consists of three members. The term of the members of this committee is three years.

 

3.    EXECUTIVE COMMITTEE

The Executive Committee is the executive authority of the Council, and is responsible for giving effect to the resolutions of the Council.
Members of the Executive Committee are elected from amongst the members of the Bar Council of India. The committee elects its Chairman and Vice-chairman.
The Executive Committee has the power:

Ø  To manage the funds of the Council,

Ø   To invest the funds of the Council in the manner directed by the Council from time to time,

Ø   To grant leave to members of the staff, other than casual leave,

Ø   To prescribe books of account, registers and files for the proper management of the affairs of the Council,

Ø  To appoint and supervise the work of the members of the staff and prescribe their conditions of service

Ø  To appoint auditors and fix their remuneration,

Ø  To consider the annual audit report and place it before the Council with its comments for its consideration,

Ø  To maintain a library and under the directions of the Council, publish any journal, treatise or pamphlets on legal subjects,

Ø  To prepare and place before the Council, the annual administration report and the statement of account,

Ø  To provide for proper annual inspection of the office and its registers,

Ø   To authorize the Secretary to incur expenditure within prescribed limits,

Ø  To fix travelling and other allowances to members of the committees of the Council, and to members of the staff,

Ø  To delegate to the Chairman and/or the Vice-Chairman any of its aforementioned powers,

Ø  To do all other things necessary for discharging the aforesaid functions.

 

4.    ADVOCATE WELFARE COMMITTEE

The Advocates Welfare Committee looks into applications made by advocates through various State Bar Councils for welfare funds. The committee verifies the application and allocates funds.
The Advocates Welfare committee is empowered by the Advocates Welfare Fund Act, 2001. The State Bar Council shall pay to the Fund annually, an amount equal to twenty per cent of the enrolment fee received by it from advocates clause (f) of Section 24 of the Advocates Act.
The members of the Advocates Welfare Committee are elected from amongst the members of the Bar Council of India. The term of each member in this committee is two years.

 

5.    LEGAL AID COMMITTEE

The Legal Aid Committee provides aids to those requiring legal assistance.

 

6.    BUILDING COMMITTEE

The Building Committee is responsible for setting up offices for the Council.

 

7.    RULES COMMITTEE

The Rules Committee reviews the rules and regulations of the Council.

 

 

SUPREME COURT SEEKS BAR COUNCIL TO REPLY ON ALL INDIA BAR EXAMINATION

“Supreme Court was hearing a plea of R Nagabushana seeking quashing of BCI’s notification on AIBE on the ground that it takes away the statutory right, given to an eligible person to practice law.”

The Supreme Court on March 1, 2016 questioned the Bar Council of India’s authority to conduct the All India Bar Examination (AIBE), which a law graduate has to clear to be eligible to practice in a court.

 Bar Council of India reply on All India Bar Examination

A bench of Chief Justice T S Thakur and Justice U U Lalit asked BCI whether it had statutory backing to conduct the examination. “A committee appointed by the SC had recommended amendments to the Advocates Act before conducting such an examination. But you (BCI) went ahead with the AIBE merely on the basis of a resolution,” it said.

“You can make rules and regulations to stop malpractices by advocates. But to make clearing of an examination mandatory for a law graduate to be able to practice is like negating a lawyer’s right to appear in court?” the bench asked. T he bench asked BCI’s counsel Ardhendumauli Prasad to come prepared on Wednesday to answer these fundamental questions. “You are a body which is regulating advocates and yet you have no answers. Are you a law unto yourself?” it asked.

The bench clarified that it was not against holding the examination per se. “But without an amendment to the Act, can you hold the examination?” it asked.

The Law Commission of India, in its 184th report to the government in 2002, had recommended amendment of the UGC Act for setting up a ‘Legal Education Committee’ and amendment of the Advocates Act to set up a similar committee by the BCI.

The commission had recommended that “a law graduate shall get training from advocates having 10 years experience in courts and should also qualify bar exam before being allowed to practice”. However, the BCI, under the chairmanship of then solicitor general Gopal Subramaniam, passed a resolution to conduct AIBE and went ahead with it from 2010.

The Supreme Court on March 2nd, 2016 sought response from apex bar body Bar Council of India on a plea-challenging holding of All India Bar Examination for granting advocacy licences, saying the profession has become “overcrowded” and the system is “crying for reforms”.

A bench comprising Chief Justice T S Thakur and Justice U U Lalit said the matter needs elaborate examination by a three-judge bench and indicated that it may appoint an amicus curaie to assist it in reforming the system. The bench also said that it would examine as to whether conducting the AIBE falls under the statutory sanction of the Advocates Act or not.

 

 

CONCLUSION

The Bar Council of India has a lot of functions vested within itself, whereby exercising those functions it can restructure and reframe the entire legal arena in the country. In fact, it can be more predominantly envisaged that in modern times it has hardly contributed constructively in the improvement of law in India. There are certain loopholes in the legal arena in India today which the Bar Council must look into, in order to protect the law standard from degradation and to maintain the same standards.

In a significant development, the Supreme Court today issued notice to the Bar Council of India in a petition challenging the Constitutional validity of the All India Bar Examination and posted the matter before a 3-judge Bench.

A Division bench of Chief Justice of India TS Thakur and  JusticeUU Lalit, however,  made it clear that it is not averse to having an exam. However, the Court will examine if the existing system is within the confines of law, and if not, seek to strengthen it.

Sanjay Nuli appeared for petitioner Nagabushana whileArdhendumauli Kumar Prasad appeared for Bar Council of India.

The petition, which was filed in 2013, had come up for hearing yesterday when the Court had enquired about the rationale behind the exam and whether it would negate the right to practice law. The BCI today submitted that a decision of the Supreme Court has barred a pre-enrollment exam and hence, a post-enrollment exam was being held.

The Bench, after some deliberation, issued notice while posting the matter before a 3-judge Bench. It also said that it might consider appointing an amicus. CJI Thakur then went on a lengthy monologue on how the court is inclined to strengthen the existing system and regulate the quality of entrants into the legal profession.

“Let me make it clear that we are not averse to having an exam. We only want to examine if the AIBE is within the parameters of law. We only want it to be strengthened.

We now have lawyers coming straight to Supreme Court. They don’t know what burden of proof is or how to conduct themselves in court. We already have two million lawyers. 60,000 new lawyers enroll every year. Out of that around 2000 are from National Law Universities. What about the remaining 58,000? Any further addition should be based on merit and talent.

Just because you have a law degree does not mean you can start your practice. We don’t want half-baked lawyers. We have to make sure that even the most junior of the Advocates is good enough to ensure that justice is done.

The system has to be reformed and time has come.”

The case will now come up before a 3-judge Bench this Friday. The ninth edition of the AIBE is scheduled to be held on March 6 and there is no stay on the same.

Doctrine Of Seperation of Powers

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Separation of PowersADMINISTRATIVE LAW

TOPIC: – DOCTRINE OF SEPERATION OF POWERS

By :-PRASHANTI UPADHYAY

 

INTRODUCTION

 

The doctrine of Separation of Powers is of ancient origin. The history of the origin of the doctrine is traceable to Aristotle. In the 16th and 17th Centuries, French philosopher John Boding and British Politician Locke respectively had expounded the doctrine of separation of powers. But it was Montesquieu, French jurist, who for the first time gave it a systematic and scientific formulation in his book ‘Esprit des Lois’ (The spirit of the laws). There are three organs of the Government i.e. Legislative, Executive and judiciary and none one the organs are allow interfering in the working of each other.

 

 

 

Montesquieu’s view on Separation of Powers

Montesquieu said that if the Executive and the Legislature are the same person or body of persons, there would be a danger of the Legislature enacting oppressive laws which the executive will administer to attain its own ends, for laws to be enforced by the same body that enacts them result in arbitrary rule and makes the judge a legislator rather than an interpreter of law. If one person or body of persons could exercise both the executive and judicial powers in the same matter, there would be arbitrary powers, which would amount to complete tyranny, if the legislative power would be added to the power of that person. The value of the doctrine lies in the fact that it seeks to preserve human liberty by avoiding the concentration of powers in one person or body of persons. The different organs of government should thus be prevented from encroaching on the province of the other organ.

This theory has had different application in France, USA and England. In France, it resulted in the rejection of the power of the courts to review acts of the legislature or the executive. The existence of separate administrative courts to adjudicate disputes between the citizen and the administration owes its origin to the theory of separating of powers. The principle was categorically adopted in the making of the Constitution of the United States of America. There, the executive power is vested in the president. Article the legislative power in congress and the judicial power in the Supreme Court and the courts subordinates thereto. The President is not a member of the Congress. He appoints his secretaries on the basis not of their party loyalty but loyalty to himself. His tenure does not depend upon the confidence of the Congress in him. He cannot be removed except by impeachment, However, the United States constitution makes departure from the theory of strict separation of powers in this that there is provision for judicial review and the supremacy of the ordinary courts over the administrative courts or tribunals.

In the British Constitution the Parliament is the Supreme legislative authority. At the same time, it has full control over the Executive. The harmony between the Legislator and the (Executive) is secured through the Cabinet. The Cabinet is collectively responsible to the Parliament. The Prime Minister is the head of the party in majority and is the Chief Executive authority. He forms the Cabinet. The Legislature and the Executive are not quite separate and independent in England, so far as the Judiciary is concerned its independence has been secured by the Act for Settlement of 1701 which provides that the judges hold their office during good behaviour, and are liable to be removed on a presentation of addresses by both the Houses of Parliament. They enjoy complete immunity in regard to judicial acts.

In India, the executive is part of the legislature. The President is the head of the executive and acts on the advice of the Council of Ministers. Article 53 and 74 (1) He can be impeached by Parliament. Article 56 (1) (b) read with Art 61, Constitution. The Council of Ministers is collectively responsible to the Lok Sabha Article 75 (3) and each minister works during the pleasure of the President. Article 75 (2) If the Council of Ministers lose the confidence of the House, it has to resign.

 

Functionally, the President’s or the Governor’s assent is required for all legislations. (Articles 111,200 and Art 368). The President or the Governor has power of making ordinances when both Houses of the legislature are not in session. (Articles 123 and 212). This is legislative power, and an ordinance has the same status as that of a law of the legislature. [1]The President or the Governor has the power to grant pardon (Articles 72 and 161) The legislature performs judicial function while committing for contempt those who defy its orders or commit breach of privilege (Articles 105 (3) 194 (3) Thus, the executive is dependent on the Legislature and while it performs some legislative functions such as subordinate it, also performs some executive functions such as those required for maintaining order in the house.

There is, however, considerable institutional separation between the judiciary and the other organs of the government.

The Judges of the Supreme Court are appointed by the President in consultation with the Chief justice of India and such of the judges of the Supreme Court and the High Courts, as he may deem necessary for the purpose. (Article 124 (2))

The Judges of the High Court are appointed by the President after consultation with the Chief Justice of India, the Governor of the state, and, in the case of appointment of a judge other than the Chief justice, the Chief Justice of the High Court(Article 217 (1).)

It has now been held that in making such appointments, the opinion of the Chief justice of India shall have primacy. (Supreme Court Advocates on Record Association.) The judges of the high Court and the judges of the Supreme Court cannot be removed except for misconduct or incapacity and unless an address supported by two thirds of the members and absolute majority of the total membership of the House is passed in each House of Parliament and presented to the President Article 124 (3) An impeachment motion was brought against a judge of the Supreme court, Justice Ramaswami, but it failed to receive the support of the prescribed number of members of Parliament. The salaries payable to the judges are provided in the Constitution or can be laid down by a law made by Parliament. Article 125 (1) and Art 221 (1).

Every judge shall be entitled to such privileges and allowances and to such rights in respect of absence and pension, as may from time to time be determined by or under any law made by Parliament and until so determined, to such privileges, allowance and rights as are specified in the Second Schedule. Neither the privileges nor the allowance nor his rights in respect of leave of absence or pension shall be varied to his disadvantage after his appointment.

Appointments of persons to be, and the posting and promotion of, district judges in any state shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such state (Article 233) The control over the subordinate courts is vested in the acts of the Legislature as well as the executive. The Supreme Court has power to make rules (Article 145) and exercises administrative control over its staff.

The judiciary has power to enforce and interpret laws and if they are found in violation of any provision of the Constitution, it can declare them un- constitutional and therefore, void. It can declare the executive action void if it is found against any provisions of the Constitution. Article 50 provides that the State shall take steps to separate the judiciary from the executive.

 

 

CONCLUSION

Thus, the three organs of the Government (i.e. the Executive, the Legislature and the Judiciary) are not separate. Actually the complete demarcation of the functions of these organs of the Government is not possible.

The Constitution of India does not recognize the doctrine of separation of power in its absolute rigidity, but the functions of the three organs of the government have been sufficiently differentiated. [2]None of the three of organs of the Government can take over the functions assigned to the other organs. [3]In State of Bihar v. Bihar Distillery Ltd., [4]the Supreme Court has held that the judiciary must recognize the fundamental nature and importance of the legislature process and must accord due regard and deference to it. The Legislative and Executive are also expected to show due regard and deference to the judiciary. The Constitution of India recognizes and gives effect to the concept of equality between the three organs of the Government. The concept of checks and balance is inherent in the scheme.

 
[1] AK Roy v Union of India AIR 1982 SC 710
[2] Ram Jawaya v. State of Punjab, AIR 1955 SC 549
[3] Keshanand Bharti v. State of Kerala, AIR 1973 SC 1461, Asif Hameed v. State of J&K 1989 AIR, SC 1899
[4] AIR 1997 SC 1511