All India Bar Examination-An advocate’s ability to practice the profession of law.

aibe Advocate Shipra Arora Dhiman

(Asst. Professor, NIMT Vidhi Evam Kanun Sansthan, Greater Noida, India)

 “Lawyers are like bread, (are best) when they are young and new.”

-Thomas Fuller

 

The All India Bar Examination is conducted every year from 2011 onwards, by the Bar Council of India. Bar Council of India is a statutory body established under the Advocates Act 1961 that regulates the legal practice and legal education in India. 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.

As per the notified, All India bar Examination is mandatory for all law students graduating from academic year 2009 -2010 onwards. No advocate enrolled under section-24 of the Advocates act, 1961 shall be entitled to practice under Chapter IV of the Advocates Act, 1961, unless such advocate successfully passes the All India Bar Examination conducted by the Bar Council of India. The Bar Examination shall be mandatory for all law students graduating from the academic year 2009-2010 onwards and enrolled as advocates under Section 24 of the Advocates Act, 1961.

The main objective of All India bar Examination to test the ability of an advocate for practicing the law profession in India. The level of All India bar Examination is very simple, it requires basic knowledge of law and analytical ability in a candidate. It intended to set minimum passing marks for admission to the practice of law in India.

ELIGIBILITY FOR ALL INDIA BAR EXAMINATION

 

  • A candidate must have passed 3 years or 5 years law examinations. It must be noted that there is no minimum percentage require in graduation to appear in the All India bar examination only when he/she secured the minimum percentage for graduation & any other requirements for graduation prescribed by the university he/she is studying at.
  • Enrolment with the respective State Bar Council is also necessary to appear for the All India bar Examination under section-24 of the Advocate Act, 1961 & will have to submit suitable proof of the enrollment along with the application form for the All India bar Examination.
  • REGISTRATION PROCESS FOR ALL INDIA BAR EXAMINATION
  • There is only one mode of registration i.e. online for registration, candidate can visit All India bar Examination website:-  
  • www.allindiabarexamination.com/registration.aspx.

 

 

 

  • A candidate has to fill personal, educational other information. Once details have been filled, candidate has to click on ‘finish’ button.
  • After then, registration number and password of candidate’s account will be generated & will be mailed on his/her email id.
  • In the next step, candidate has to again log on to the official website of All India bar Examination & click on ‘login’ button on the website.
  • Then, he/she has to enter his/her registration number & password there & take a print of the challan copy.
  • After then, candidate has to deposit the fee on the said printed challan at any branch of State Bank of India within 24 hours of registration.
  • In the final step candidate has to again login to the account & to take a print out of the All India bar Examination application form & to send its hard copy along with other documents to the following address:Bar Council of IndiaITO, Near Bal Bhawan New Delhi-110002
  • Mode of payment
  • It must be noted that payment is made through challan only which generated after 24 hours of registration in any branch of State Bank of India. It must be noted that no demand draft, online payment or cheque is accepted.
  • Admit card
  • There is only one mode of getting admit card i.e. online. Candidate has to download his admit card as per the date mentioned on the website: www.allindiabarexamination.com
  • EXAM PATTERN OF ALL INDIA BAR EXAMINATION
  • +21 Rouse Avenue Institutional Area
  • AIBE is an open book test, study material and notes are allowed, electronic devices like laptops & mobile phones are not allowed.
  • The test comprises 100 multiple-choice questions from syllabus prescribed by Bar Council of India for three-year & five-year LLB programmed in India.
  • All India bar Examination is on reasoning & analysis & not the ability to memorize large portions of text.
  • The preparatory materials are sent to every advocate who help as a guide in preparing for the All India bar Examination & this preparatory material for the All India bar Exam is received approximately two weeks after the Bar Council of India receives the application of the candidate.
  • The subjects are chosen from amongst the syllabi prescribed by the Bar Council of India for the three-year and five-year LL.B. programmed at law schools in India (as set out under Schedule I to the Bar Council of India Rules). In choosing subjects, regard has also been had to the subjects tested in bar examinations at various jurisdictions across the world.
  • Bar Council of India has changed the syllabus of AIBE 2014AIBE VII 2014
  • Syllabus includes a few new topics other than the previous ones. The new syllabus of AIBE VII covers a total of 19 subjects. The AIBE VII 2014 shall cover these new 19 topics/subjects.
  • The subjects are set out below:
SUBJECT/TOPIC NO OF QUES.
Limitation Act 2
Corporate Social Responsibility 2
Family Law 2
Jurisprudence 3
Administrative Law 3
Professional Ethics and Cases of Professional Misconduct under B.C.I Rules 4
ADR + Arbitration Act 4
Company law (2013) 4
Constitutional Law 5
Environmental Law 5
C.P.C 5
Public International Law 5
Cyber Law 5
I.P.C 6
Labour law + Industrial law 6
Law of Tort, including Motor Vehicles Accidents and Consumer Protection Law 6
Evidence 8
Cr. P.C 10
Law of Contract, Specific Relief, Property laws, Special  Contract N.I Act 15
Total 100

 

  • Duration of exam is three hours & 30 minutes to complete the All India Bar Examination.
  • The minimum required score to clear the All India Bar Examination is 40%. And there is no negative marking in the All India Bar Examination.
  • Candidate is need to carry black/blue ball point pen, the admit card for the examination, a valid photo-identity card and choose study materials.
  • The Bar Council of India notifies the list of advocates who have successfully passed the All India bar Examination.
  • There is no provision for refund of the application fee.
  • There is no provision for re-evaluation. The All India Bar Examination is implemented and evaluated using OMR technology. As the answers are machine-read and evaluated automatically, there is no revaluation or recounting methodology.
  • The language you appear for the examination in has no bearing on your ability to practice.
  • There is no limit to the number of times you can appear for the All India bar Examination.
  • The All Indian Examination will be conducted in many languages, and advocates can choose to take the examination in any one of them. Advocates will receive the preparatory materials in the same language that they choose to attempt the All India Bar Examination in.

 

PURPOSE OF ALL INDIA BAR EXAMINATION

 

Conducted by the Bar Council of India, the All India Bar Examination  is an eligibility exam for any law graduate to be able to practice in law in India. According to the Bar Council of India, the exam is intended to “assess capabilities at a basic level and set a minimum standard for admission to the practice of law; it addresses a candidate’s analytical abilities and basic knowledge of law”. Upon successfully passing the Bar Examination, the candidate becomes entitled to a Certificate of Practice, which is issued by Bar Council of India within 30 days of the date of declaration of results. All students graduating from the academic year 2009-10 onwards need to clear AIBE in order to practice law in India.

 

Legal Education and its Challenges

Legal Education and its ChallengesChief Justice Burger in his address to the American College of Trial Lawyers in Columbia observed:

“In some jurisdictions, up to half of the lawyers who appear in court are so poorly trained in that they are not properly performing their job and that their manners, their professional performance and their professional ethics offend a great many people. They are engaging in on the job training at the expense of their clients’ interest and the public.”

Chief Justice Burger’s comment would hold equally good in the context of legal profession and its education in India. It is very general knowledge that a large part of the two lakh graduates being added every year to the existing ten lakh advocates in the country, are absentee law students who pass out from about 500 law colleges/schools. Such advocates ultimately learn, if at all, at the cost of the poor clients and court time. No wonder then that this, in turn, leads to the dispute resolution machinery to be seen as a villain by the society at large whereas this should be avoided as far as possible.
This unfortunate and disturbing situation demands that we ponder as to where the things have gone wrong. An effort has been made in this particular essay to identify the challenges the present legal education faces in India and also look into the means of arresting the falling standards so as to make it socially relevant.

Historical clock says:
The concept of dharma, in the Vedic period, can be seen as the concept of legal education in India. Although there is no record of a formal training in law, the dispensation of justice was to be done by the king on the basis of a self-acquired training. Justice was also administered by the king through his appointees who in turn were persons of known integrity and reputation of being fair and impartial. The guiding force for the king or his appointee was the upholding of dharma.
The institutions for formal legal education were introduced by British after the establishment of their rule in India. The first step in this direction was taken in 1857 when the three universities in the presidency towns of Calcutta, Madras and Bombay introduced legal education as a subject for teaching . This was followed by the setting up of a law college at Lahore after the establishment of PunjabUniversity. Thus, a beginning in the formal legal education grew stronger and showed its light in a part of the sub-continent.
At the initial stages, law courses were not full time. A student could take up law as a part-time course along with a full master’s course in social sciences or languages. There were hardly any standards or qualifications prescribed for the prospective law graduates. Though a beginning in imparting formal instructions in law leading to a degree was made with a limited number of law schools, the well offs in the society, however, would go to England to return as barristers.
Rule of law became the fundamental doctrine for governance of the country with adoption of the constitution in the post-Independence era. Consequently arose the need to streamline legal education in the country. During the decade of the fifties, law was introduced as a course (full time as well as part time) by a large number of institutions. In the absence of any rules for starting law courses and the qualifications for the faculty, the standard of the legal education went down during the infancy period itself. The decline was lamented by Dr. S.Radhakrishnan when he said:

“Our colleges of law do not hold a place of high esteem either at home or abroad, nor has law become an era of profound scholarship and enlightened research”.

The sorry state of affairs of legal education was echoed by the law commission in 1958. It observed :

“In the period of about ten years which has lapsed since the publication of the Radhakrishnan commission report, the position in regard to legal education in this country, it appears, has definitely deteriorated.”

The portals of our law teaching institution- manned by part-time teachers- open even wider and are accessible to any graduate of mediocre ability and indifferent merits. It is not surprising that in this chaotic state of affairs in a number of these institutions, there is hardly any pretence of teaching. This character is followed by law examinations held by the universities many of which are mere tests of memory and poor ones at that, which the students manage to pass by cramming short summaries published by enterprising publishers. The result, plethora of half baked lawyers who do not know even the elements of law and who are let loose upon society as drones and parasites in different parts of the country.

The Mushroom of Challenges:
In 1958, when the Law commission voiced its concern at the deterioration in legal education, there were hardly forty three institutions in the country preparing about twenty thousand students for the law examination. One notices a mushroom growth of law colleges in the sixties after enactment of the Advocates Act. This phenomenon continues unabated till date. The magnitude of mushrooming law colleges can be gauged from the fact that up till the early nineties, there were four law colleges in Bhopal whereas there are twenty two law colleges. Same is true about U.P. and Rajasthan in this region. These colleges work as money spinners and has put legal education at the back seat Admissions to these law schools are easy as the eligibility for admission is the minimum marks prescribed for the qualifying graduation examination. Thousands of students become eligible for admission and all of them get it. These sub-standard law schools have neither adequate buildings nor the qualified faculty in the required strength nor any library. Most of these institutions have part-time teachers with the exception of a few full time teachers. A student turns out a law graduate from such schools while sitting at home a few hundred miles away and without visiting the law school. These absentee law graduates play havoc with the clients and the court time after their enrollment as advocates. As of today, about 101 universities and about 500 law colleges are churning out two lakh law graduates every year. The first step to check the rot in legal education was to introduce the five year law course after the plus two level throughout the country. NationalLawSchool of IndiaUniversity, Bangalore is running exclusively a five year law course from the time it was set up in the year 1988 and along with it several other National Law Schools have come in various states of India. As a transitory measure, a three year programme is also allowed at various colleges and universities. Like other professional courses in engineering, medicine, commerce, architecture, etc. a student now decides his career in law at the turning point of plus two level. Introduction of a uniform five year law course would go a long way in improving the standard of legal education in the country. Still there remain some loopholes within the system.

Learning from the Critical Legal Studies and its application:
We should develop our first year courses into systematic embodiments of our views about the present and future organization of social life. In particular, we should teach the students that bourgeois or liberal legal thought is a form of mystification. The students should be taught to understand the contradictions of that thought, and the law teachers should make utopian proposals to them about how to overcome those contradictions.
The beginning should happen with a practical proposal. I think it’s different both in content and in spirit from the ones that liberal or vaguely progressive law professors typically put forward. For the last maybe fifteen years in the United States there has been an attempt to politicize the classroom. Politicizing the classroom means trying to teach basic contract, property and tort doctrine using cases and hypos that will perform three functions.
First, the cases and hypos have to be pedagogically useful just to get the students to learn black letter law. The teachers should have the major responsibility to teach doctrine, bar review type stuff. Though the students should have the right to criticize the professor for not doing enough and also question the questions. The need for cases and hypos that will perform this function while still working well to further the second objective, which is that cases and hypos should illustrate gaps, conflicts and ambiguities in the system of black letter law. The students should be made to see the pervasiveness of occasions for choice by judges when they are deciding what the rules should be. The third element, the politicizing element, depends on the first two. The cases and hypos that pose the problem of what to do with a gap, conflict or ambiguity in the system of doctrine should split the conservatives and the liberals in the class as close to right down the middle as possible. In other words, the students should find themselves evenly divided between two sharply contrasting yet possible rules to govern the fact.

Socio-Legal Research Perspective:
The level of research facilities available to a law teacher in India is not conducive to sustained research. The lack of role-facilities generates confusion, conflict as well as ambivalence towards primary role obligation calling for sustained attempts to contribute to knowledge in the field. A law teacher (unless he is a dean or Head of the University Department or a principle of a law college) gets no typing and duplicating assistance. Very few know how to type and of these not many can afford a typewriter. Availing the services of a professional typist remains for most of them a luxury. The role of Indian Council of Social Science Research can be very significant. Much of the current research effort has no relevance to contemporary social and national problems and suffers besides from lack of rigor in its analysis of phenomena and synthesis of facts. It is not yet emancipated from its tutelage of western theories and has failed to develop research tools, designs and models of its own appropriate to the Indian situation. Multi-disciplinary and inter-disciplinary research is yet rare. A most encouraging feature in the recent times has been that the concept of Indian law schools with focused research has made some profound and everlasting mark. The law community has actually acknowledged the same.

Conclusion:
The legal education should be able to meet in the ever-growing demands of the society and should be thoroughly equipped to cater to the complexities of the different situations. Specialization in different branches of the law is necessary. The requirement is of such a great dimension that sizeable or vast number of dedicated persons should be properly trained in different branches of law every year by providing or tendering competent and proper legal education. This is possible only if adequate number of law colleges with proper infrastructure including expertise, law teachers and staff are established to deal with the situation in an appropriate manner. The area of deficiency should be located and correctives should be affected with the co-operation of competent persons before the matter gets beyond control. Reforms in legal education cannot wait any longer and that there can be no improvement in legal education unless we can convince the brilliant young people to accept teaching assignments in law. We need to produce a number of committed and dedicated teachers who in turn need to produce a new crop of hard working lawyers, honest judges and distinguished jurists. This is a tough and certainly a challenging task. As we all know, a teacher is a nation builder and only a committed and dedicated teacher can produce conscientious students, honest professionals, and informed citizens. This is what the nation in general and the legal profession in particular needs today.

Ding Zui to Ding-Dong Zui

Ding Zui B.VINOD

The practice of hiring impostors or body doubles to stand trial and receive punishment in one’s place is a relatively common practice among China’s wealthy elite, There is even a term for it: ding zui. Ding means “substitute,” and zui means “crime”; in other words, the term translates as “substitute criminal”.

Centuries before, westerners have noted the practice of replacement of convicts in   China’s legal system. Ernest Alabaster, a scholar of Chinese criminal law, wrote in 1899 that courts “permitted” the real offenders to hire substitutes, and that such things “frequently happen, have for long happened, and—notwithstanding Imperial decrees to the contrary—will, under the system, always happen.” Incredibly, substitutes could be hired even for executions.

Usually lower class men and women are hired to pay for the crimes of the Chinese wealthy elite. In return, the body doubles get financial security for themselves or their families which they can only dream of. It is said that the rich people who practice Ding zui have close ties with the government and hence the practice is not investigated properly.

In ding zui there is a quit pro quo. But we certainly can take pride in an improved version of the ding zui the DING- DONG ZUI whereby the cops would take the responsibility of substituting an innocent unsuspecting individual for an offender ether due to incompetence or due to avariciousness to complete an investigation and get the laurels or due to corruption or to please their political masters. In most of the politically motivated heinous crimes politicians and not the police find the accused. Gangsters   end up being charged in all cases irrespective of the fact they have participated in any particular crime or not. These pressures coupled with the system of assessing the police that are vogue almost ensures that a substitute criminal end in conviction.

In some part of the country it is said that the political parties decide in advance, as against whom all, the next FIR is to be laid in the event of a murder of any one of their clan.    FIS consistent with the false story are to be filed in different police stations almost simultaneously[1]. FIR being an important instrument in testing the veracity of the prosecution story the police seldom takes up the responsibility of denuding it from the truth. Thereby actual criminals get substituted without any benefit.

Assessing a police officer for the number of cases investigated and charged and convicted and not on the reduction of crime rate where he is policing, as well as assessing a Magistrate on the conviction percentage is an imperialistic relic to have most number of subjects of the subjugated state behind the bars. Policing is more about preventing crime. Magistrates must be assessed on the percentage of judgments reversed by the higher courts. These systemic disorders if, corrected can also help reduce dockets at courts of appellate and revisional jurisdictions apart from increasing faith in judicial system.

 

In murder, smuggling, large finds of contraband or forest produce, cases junior- inexperienced detecting officer, who registers the crime, gets hardly 12 hours to complete investigations before the senior inspectors takes over investigation. Similar is the case with all other grave crimes. The principal offender always conceals himself behind the curtains and operates through accomplices or sometimes through victims. He may get a house or property on lease without signing an agreement paying exorbitant rent. When caught the land lord is penalized. The SI is under pressure of ambitions to complete the investigation,  no matter what the truth is, he requires only an offender and evidence to sufficient to convict the offender. Smuggling and counterfeit currency are other   crimes   wherein the detectives do not bother to investigate the real mind behind the crime and puts the entire blame on the hands that used to commit the crime. Thereby the actual criminals escape on account of ding-dong zui.

[1] Occurrence of crime can be reported to the place where the offence is committed. Place at which the victim is taken for first aid and   ultimately the place where the victim is pronounced dead. It is in the clan’s interest that the victim should bleed to death.

Only Fire No Safety

Rishabh Shrivastava and Abhimanyu Shrivastava

dOn the night of 26 January, 2001 at 8:46 P.M. state of Gujarat was quaked down by the earthquake of 7.6 and 7.7 magnitudes with its epicenter as Chobni village in Gujarat near Bhuj, as a result this earthquake came to be known as Bhuj Earthquake. This earthquake was one of the major natural disasters that India experienced. Earlier, Bengal Famine and Tsunami of 2004 left Indians shattered. The Bhuj Earthquake left 20,000 people died, 167,000 people injured and around 400,000 homes destroyed. India’s economy also struk down as the Gujarat is a major hub for trade and all. People could not believe that half of the Gujarat was destroyed in that Earthquake. Before that also the Indian leaders or the bureaucrats or the people never felt the need for an agency which might take care of the disasters which we call as ‘Disaster Management’. After such a huge natural loss, it took almost 4 years for our mighty Indian Parliament (and the Indian Government) to frame the ‘Disaster Management Act’, through which, for the first time in India a central disaster management agency was created known as National Disaster Management Authority (NDMA) on 23 December, 2005.

It is unbelievable, for the people like us, that India challenges to be the top most countries in all the fields, but the time since Britishers left India, there was no Central authority that could have mitigate the risks arising out of the natural or man-made disasters. Today if people talk about China and Russia, their development, their nuclear capability and the hazards of it, they must also be aware of the fact that how capable they are. One must remember that within the period of certain months of nuclear disaster known as Fukushima Nuclear Power Plant Disaster in Japan, the disaster management agency of Japan- Fire and Disaster Management Agency (FDMA) cleared toxic waste and built the rehabilitation camps within fortnight. The government took unbelievable steps-because they were taken in a quick period of time-which reduced the possibility of next, such big disaster. This has been the difference between these nations and India. It took almost years for India to get itself back on track after a mass chemical disaster in the Bhopal, Madhya Pradesh known as Bhopal Gas Tragedy when metric tonnes of Methyl Isocyanate spread through the local town of Bhopal. Till now the young ones born there suffer from regular disturbed physical and mental aliments and from that day to this day in India there exist no proper legislation that could have a check on these Man-made disasters. Keeping focus on this disaster issue, here are some of the observations about the NDMA, the central authority of India that claims to be technology driven, alert, well-organised, coordinated, with communication at its best, state of art facilities, training and workshops etc. to which extent it is successful. Can we really depend on NDMA? And if not, then who is going to protect against the natural and man-made disasters or as many say, that all these disasters are the results of human’s barbaric treatment on Environment and mother Earth, and we are helpless before it. Can’t we do anything, can’t we even prepare ourselves, can’t we protect ourselves, and can’t we lessen the damage, really?

Starting from the organisation arrangement of the NDMA, Chairman constitutes of the Prime Minister of India, Vice-Chairman will be a person of a rank of a Cabinet Minister and the other 8 members will be the state ministers. Now if one closely observes this organisation structure, it seems more of a political committee, right from the Prime Minister to the members present they are from political background, they are concerned with the mainland politics of the nation. Now, being little bit practical (because everyone knows how are democracy works), the PM is the head of the government and already occupied with the work like looking towards the ministries, heading the cabinet meetings, foreign relations, public grievances, and many other vital work which PM has to do. There is no single member who is well-versed with the knowledge of disaster management posted at the prime posts in the NDMA. The reason which one of the senior journalists gave was that “since the functioning and reporting of NDMA is done to MHA, therefore the PM is the Chairman of the authority”. Presence of politics can be felt in NDMA. Disaster Management Authority, which has been ignored by the Indian government since the Independence after seven years of its creation, is yet dominated by the big bureaucrats of the national political parties. Obviously, where the PM is the Chairman, Cabinet Member is the Vice Chairman and the members are also state ministers, before taking any decision they will think of the ‘hands of god’ that is upon them. The triumph over bureaucratic culture should be the objective of the NDMA. Selecting the Cabinet ministers, state ministers, Prime Minister is transformation of a prime disaster agency into a great political theatre. Obviously, the more will be the ministers the more will be the politics, and such activities will prove faulty for the nation. Therefore, the government should create an independent and parent authority for the disaster management, because this is not a small issue every individual’s life and nation’s economic growth is related to, and if it is not possible than immediately an amendment should be made, scraping out the Cabinet Ministers and State Minsters out of the organisation and persons who are well-versed in the field of disaster management should be-hold that respective positions. This will not only lessen the bureaucracy and corruption among the authority but also increase the efficiency and effectiveness.

Secondly, coming on the committees present under the scheme of National Disaster Management Act, there exist a parent committee known as ‘National Crisis Management Committee’ (MCMC), the function of this committee is to pass the directions and guidelines to the lower committees namely, Crisis Management Group, Control Room of MHA, State Satellite Stations etc. this arrangement has been provided at the National or Principal Level. But if one studies the National Disaster Management Act, it clearly states that the responsibility of disaster management lies with the respective state where the catastrophe has occurred. Now, can anyone can elucidate that what is the use of having same tiers and levels under the NDMA at both the Central and State level. If the Act itself states that the State has to take the steps for managing the disaster, than why a Central Committee, NCMC, at one hand is reporting to the other sub-level workgroups at Central Level and the same structure is drawn out in the State machinery. This is leading in complexity and cumbersomity. A clear demarcation between the duties of state and Centre is still not stable and flawless. There is presence of ambigousity in both the authority and the legislation.

Thirdly, the most important issue, all the projects that have been initiated by the NDMA namely (with their financial sanctions) – National Earthquake Mitigation Project- Rs. 90 Cr., Landslide Risk Mitigation Project- Rs. Cr., Disaster Management Communication Network- Rs. 25 Cr., Other Disaster Management Projects- Rs. 93 Cr., National Cyclone Risk Mitigation Project with assistance from World Bank- Rs. 25 cr., National Flood Disaster Management- Rs.35 Cr. If an individual visits the national website of NDMA, and analyse the financial sheet of these projects available one can mark that technology column is marked NIL. This is the prime reason, the NDMA is under the scrutiny, and 85% of the NDMA is being worked with the help foot soldiers which are using their own equipments. The technology driven environment is lacking in NDMA. The stories of corruption in every individual project are also evident. Ministry is spending large amount of financial sanctions yet the basic confirmation of improvement is still missing from the framework. “The NDMA has lacked to make the best use of the financial aid provided by the Union” says CAG.

Last but not the least, the lack of accountability and coordination has proved to be the most prejudicial aspects for NDMA. Neither the authority nor the government is taking efforts to realise this problem. Due to Centre-State model, the ‘blame-game’ has been the flashing point for this authority. There have been continuous reports from state that Centre is not supporting State, Centre blames State that after providing the financial aid also the states have failed to implement the actions. This war in terms of rigidity between the center and state has paralysed the whole working of the NDMA. The officials of NDMA has also no clue that how to create a strong and active charter for the India’s supreme disaster management authority. The absence of strong leadership, red-tapism, bureaucracy, political environment, lack of coordination seems to be the demerits for this organisation.

A Central Nervous system has to be created, that could keep the NDMA supreme. The balance between the powers of Centre and State has to be achieved. More technological improvements should be taken by the NDMA. Political environment should be curbed down. A proper layout regarding the functioning of the disaster management authority must be prepared. The delegation by the committees of NDMA at both the center and state level must be restricted. A separate ministry for disaster management must be created. Different departments within the NDMA must be created. A strong focal point from where the decisions can be dispersed in a uniform way must be constituted. Necessary amendments must be made in the act. Technological collaborations must be emphasised.

An immediate attention is required in the field of disaster management because a calamity won’t be coming at our doors first before claiming the lives of many. We must be in a network where we can protect ourselves and our livelihood. In this way not only our standard of living but the country’s economic culture will also flourish. We don’t want once again to see the incidents like Bhopal Gas tragedy, although recent GAIL pipeline explosion in Nagram (Andhra Pradesh), building collapse in Delhi, Bombay and Bengal, rehabilitation process of Uttarakhand Flood Tragedy has been continuously pointing the failure of NDMA. All this can be summed up as “Only Fire no Safety”. We depend on almighty only for his mercy upon us.                                         

An Era of Mafiaism

Rishabh Shrivastava

“There is enormous and large scale multi-state illegal mining of iron ore and manganese ore running into thousands of crores every year, having several pernicious and evil effects on the national economy, good governance, public functionaries, bureaucracy, public order, law and order. It has encouraged huge corruption at all different levels in public life, mafia in society and money power…This has to be stopped immediately and effectively”

 

These were the findings of the Commission constituted by the Parliament of India in 2010 headed by the retired Supreme Court Justice M.B. Shah. Due to rising economy and increased energy patterns in India, the Mining sector has boomed like a rocket in last 5 years. Due to weak and irregular framework present to regulate this sector, the problem ofillegal miningis today’s one of the prime problem that till now Indian Government has failed to address. This data is way too old but still for the understanding of our readers, till 2010 alone, 82,000 cases of illegal mining were recorded by the Indian Government. United Nations has expressed a deep concern for this type of filthy and corrupted practice being persuaded by the Indian Government in trade and economic growth. The recent order of SC to ban the illegal mining activities in the Aravalli hills lying in Haryana and Rajasthan have once again raised the concerns of the Indian Government in context to the Mining sector of India.

 

What do you mean by illegal mining? Illegal mining means mining, raising, transporting and exporting the minerals from the ore illegally or without the consent or permission of any lawful authority. Therefore by studying various case studies, I can summary up the illegal mining in the following points,

  1. Mining without a license
  2. Mining outside the lease area
  3. Undertaking mining in lease area without the prior approval of the state government (List II, entry no. 23)
  4. Raising of minerals without lawful authority
  5. Raising minerals without giving royalties subscribed by the proper grades and quantities.
  6. Mining and Transportation in contravention to the rules and acts provided by the Centre and State.
  7. Carrying out multiple trade transactions to make unclear the origin and source of minerals in order to facilitate their disposal.
  8. Manipulating the land records
  9. Deleting the interstate boundaries with the view to encroach mining outside the lease area.
  10. Forging or misusing valid transportation permits and other documents to raise, transport and export minerals.

These all parameters constitute what we call as “Illegal Mining”. The major legal provisions which regulate the mining business and affairs are – Mines and Minerals (development and Regulation) Act, 1957, the Forest Conservation Act, 1980 and the Environment (Protection) Act, 1986.

These were some of the specific details about the illegal mining, but coming onto the dark and the important side of this ‘bad game’. More than 5000 rural households are employed in this illegal mining business. The theory behind this is that most of the families in rural areas of Goa, Karnataka, Madhya Pradesh, Uttarakhand, Uttar Pradesh does not even have a fuel to light their stoves, food to fulfill their empty stomachs, clean drinking water facilities, proper sanitation facilities, diesel or petrol for their vehicles, electricity in their hutments, education facilities for their children, proper support and redressal systems for their sufferings and over that the wrath of the loans and banks that they took for their agricultural bank which now they are unable to pay due to lack of rains, misguiding habits of local officers and many other elements. Than as we say “Bhook ka maara”, these people couldn’t decide what they have to take and what not to. The mining contractors have taken the advantage of all this situations and as the result, today the biggest threat from regularizing this illegal trade is to these rural households who are on the edge of their death. There is not a single proper mechanism with the government that how to protect or provide the rehabilitation to these poor families. Simply, shutting down these illegal mining centers and imposing a legal ban and financial obstacle like fines and penalties won’t solve the problem, but let me think, who am I talking to, this government does even care to think in this way? Do they even care about those rural kids who are wasting their life playing in that sand mine, which they do not even know what exactly is, or do the government care about all those 5000 rural households who haven’t slept in a room with a proper fan and light upon his head? The only option which I see that government is looking for is legalizing this illegal trade, regularizing the illegal mining game, there is no need for law, because we are not able to and cannot curb this practice down, than are we moving from Democracy towards to the Anarchy? Are we going to run the principles of our founding fathers and their constitution on the idea of anarchism?

If one analyses and observes these illegal mining instances, the mining boards that have been deployed in this filthy mining culture are big financial monsters that have been eating and destroying our natural and regular set-up governing the mining business? According to my personal observation, the file for requesting the clearance of mining is normally in the frame work of the ‘single file system’. The file is initiated at the office of the Director of Mines, than to the government secretary and then to the concerned Minister or Chief Minister. It means that ultimate right of giving clearance to the mining contractors lies with the concerned minister or the Chief Minister. Now obviously one can conclude, that any project that is ready with their money-fuelled financial weapons by a big business tycoon, can now be refused from getting a clearance to the mine. And once he is done with the clearance part, the money power is now ready to be increased by encroaching more than what is mentioned in the mining lease. The reason why I can say this by being so damn sure is because, how one can expect that minister who is approving a clearance (that too after two stages) cannot know what the contractors propose to do, what are their financial credentials and what is their ultimate objective i.e. personal financial enhancement. And being a law student transforming this logical premises into legal dimension, according to Section 24 of Mines and Minerals (Development and Regulation) Act, 1957, it empowers the Central and State Government to inspect any mine any time for any purpose. But while going through the cases pending in the various tribunals and courts, since more than 5 or 3 years no authorized person from neither the state government nor the central government, visited the mines for inspection, be it Madhya Pradesh, Goa, Karnataka or any state located in whole of the India (one can visit the official websites of National Green Tribunals and High Courts for these cases on Illegal Mining of Minerals), where this business of illegal mining is going on. Now reading this section even a child could tell, that some conspiracy between the contractors and the ministries have been going on. Otherwise, how a government having a statutory right or power cannot visit a mine, that also not for a month or a year but for more than 5 years. Another thing which I can conclude from this scenario is, there are enough legislations and acts on these malpractises going on, but there is no one to take record on them or a check on them. The Political members have failed to keep an eye on these issues because they are shut down with the weight of financial layer(s) that have been kept upon them and the executive classes have botched to implement them.

Secondly, the absence of professionalism, honesty, dedication has created a dis-harmony between the different departments of the government. The state pollution control boards never visited the fields even on the notice by the government. The licenses were never checked that whether they are to be renewed or cancelled. Going through the reports by Justices M.B. Shah and Lokayukta of Karnataka, round about 30 such instances in both the states relating to state pollution control board appeared. The shifting of responsibilities from state pollution control boards and other departments to the state government and vice-versa has been the prime source due to which, till now the Judiciary is unable to produce something substantial and have a hit at it. Thirdly, this illegal mining has been carried out with the help of heavy machineries and gunda power. The police have never initiated proceedings against any of these organizations, no FIR or any other record is present in any of the Police Stations that are in-charge of such operations. According to the analysts, many of the big police officers does not even wants to get involved in this, due to bureaucratic and political pressure from the above authorities that present above them in the scheme of state management. The machineries have a unscrupulous conditions which are contributing to the land, air and water pollution to its fullest. In many state, the great environmentalists have concerned deeply for the contamination of the drinking water due to which everyday hundreds of cattle’s and agricultural fields are being destroyed.

This game seems to be unstoppable by the Indian Authorities. The time has come that even the orders directed by the Hon’ble SC are not being observed. Step like employing more workforces at lower level has to be taken up. Flying Squads should be constituted to inspect regularly the mines and record their activities. A team or committee should be constituted which can suggest government whether to issue clearance to particular project or not within a short span of time should be initiated. The information related to mines (lease area, contractor, district, financial set-up etc.) should be published in the official website of the Coal Ministry. An Action Initiation Team (AIT) at various levels should be constituted that will keep check on the Political and Executive members that they are discharging their duties properly or not. They should be free from any influence and pressure, Judicial members would be ideal for it. Report relating to the rural people that are being employed in the project along with their details of income, house, food etc. should be prepared and should be given to the appropriate ministry so that if such illegal activities are being active than an appropriate rehab process and action can be planned out. On the part of various state departments and pollution control boards, regular evaluation should take place without any internal displacement. Judiciary should act quickly on the pending matters and take all possible steps to eradicate such unfair trade practice from our nation. More transparent and accountable process for leasing of mines and related aspects should be done by way of publishing it in Gazette, websites of official organizations. Corruption seems to be persisting problem in this sector of our economy.

Principles of democracy should be saved and nurtured. The rural households have to be taken care of, that while out rooting these trade contractors we should not infringe their rights and life. The strength of India lies in efficient and effective restoration of our mining sector and other power sectors. Energy sector and Infrastructure facilities of our nation should be developed by regulating the illegal trade practices of our nation. Every individual’s right should be protected than only the democracy of our India could be saved from getting converted into ‘Anarchy’- a state of lawlessness.

Gone in 30 DAYS

Rishabh Shrivastava

Bhartiya Janta Party (BJP) – the most stereotyped and the cynical party- was witnessed as the outstanding and the only party after almost 20 years to form the non-coalition party in the general elections of 2014. The BJP led the National Democratic Alliance (NDA) to a sweeping victory taking 336 seats and overthrowing the Congress lead United Progressive Alliance (UPA), which, managed to capture only 58 seats in toto. The downfall of Arvind Kejriwal and the Aam Aadmi Party (AAP) was the most disgusting blot to the Indian Politics. The general elections of 2014 saw the rise of the India’s most favorite Hindu Nationalist political leader since the last one decade; become the Prime Minister of India. The Narendra Damodardas Modi was sworned in as the 15th Prime Minister of India on 26 May, 2014. Today, 30 days are over, although these are not the correct days to judge the capability of the Hindu Nationalist leader and his party, but still the common man cannot see any signs of good governance coming to his way. The only hope is the general Union Budget that is going to be presented by the Union Finance Minister, Arun Jaitley in the second week of July. But what can we make out of these 30 days of Modi raj. The inference can be either positive or negative, but still we can take stand after analyzing some of the recent events that took place after BJP came into power.

The Cabinet of Narendra Modi constituted every big leader who played important role during the election campaign of BJP. Rajnath Singh, Arun Jaitley, Sushma Swaraj, Nitin Gadkari, Uma Bharti- all saw them holding one of the top most ministry of the government. When the manifesto of all the cabinet ministers was being announced, one was eagerly waiting to hear the name of the L.K.Advani in the cabinet of the Modi. But unfortunately, Advani ended up taking the backdoor exit from the BJP. Another senior leader of BJP, Murli Manohar Joshi was ignored by Modi Government and ultimately he was moved away from the mainland politics of the BJP. During the Reign of UPA, Manmohan’s Government took care of every senior leader be it A.K. Antony, Sharad Pawar, Salman Khurshid, P. Chidambaram, Kapil Sibbal and many others. No doubt these leaders were always in “burn hole” but these were the prominent leaders that change the shape of UPA government. Apart from the Congress Government did not forget their duty towards the Congress main-head Mrs. Sonia Gandhi and her intelligent son Rahul Gandhi. Sonia Gandhi was allotted the post of Chairperson for the UPA government while her son Rahul Gandhi was posted as Vice-President of the Indian National Congress. The jokes about Sonia Gandhi and Manmohan Singh are famous and were real to some extent, but still the Congress never forget the duty which they owed for their old and senior leaders, which at some point of time used to be the ‘shining stars’ for their government.The decision of Modi for not keeping the L.K.Advani in the government was criticized, but still after resuming the post of Prime Minister Modi hasn’t even looked back for Advani, the person who nurtured the BJP with his guidance, blood, experience and last but not the least and the most important inter alia the sacrifices he made for BJP.

The another issue which was in the news was the selection of Smriti Irani as the Human Resource Development Minister. Smriti Irani was born in Delhi and studied upto class 12th. According to the experts, the person who has studied till 12th, can how suggest the current education system for the young population of the country. Modi, since the election campaign has always talked about addressing the problems of Young Population and focusing on them-India is one of the , but suddenly electing a 12th pass-out person to frame the education system and policies for the young generation is totally beyond the common man’s understanding. Also if one compares the Ministers of State (Independent Charge) of the two governments and taking into the account the notion of ‘Young Population’, BJP has no Minister of State (Independent Charge) whose age is below 50, may be the other view of looking at this may be that experience is the only thing through which politics is played. But on the other hand, Congress had around two or three ministers which were known for their enthusiasm and dynamism like Manish Tewari- 47 (Minister of Information and Boradcasting), Sachin Pilot- 35 (Minster of Corporate Affairs), Jyotiraditya Madhavrao Scindia- 42 (Minister of Power). Recent Strife between the UGC and Delhi University has put the Indian students in a state of dilemma. But still there is no course of action that is being activated by the Government or any single public appearance by the Smriti Irani on this particular issue.

The another major topic which has led to the criticization of BJP is the hike in the fares of train and other essential commodities like Sugar, Petrol, Diesel, gas have led to the return of fear into the public, that the same story is going to be repeated as by the UPA government in context to the Price hike. The passenger fares have gone up by 14.2 % while the freight charges have shoot up by 6.5 %. And the scrutiny was at its high-point when the passengers which booked ticket at pre-revised rates had to pull out their wallet in the middle of their journey when the ticket-checker came to take the money or see the ticket? When the media persons asked the Rajnath Singh that why their leader Modi is silent after assuming the Prime Minister Office, his explanation was that it takes time to realize such big post and he is believes in work rather than saying. But what explanation he would like to say about it, price hike that too without any prior notice and not even having any public appearance after it. The Budget is set to be release in second week of July and before it sudden increase in price, sends only one message to the public that the Budget is not going to relieve the tension of price hike. On that, the rise in the prices of essential commodities like Sugar and Diesel have once again posed problem for the common man. According to the analysts, the principle and concepts of price hike are not under the control of Narendra Modi. Then I believe that when the Manmohan Singh was the PM same commodities were there, same concepts of economics were there, and I am afraid the same principles of politics also played their role.

Iraq has been struggling with the internal rebellions since almost the decade now. NATO forces have been evacuated from the Iraq earlier this year. The ISIS leaders have took control of almost every major city of the Iraq now. Earlier, the news of 40 Kerala nurses being captured and many other boys working in an MNC from Punjab, were reported bondage in Iraq by the rebellions. The family members of these captives tried to initiate a meeting with the Modi government but due to some reasons it didn’t succeeded. Till now the NDA government has took no step to develop a real and a protective measure for these sufferers in Iraq. Indian Government seems to be insulating itself from the politics of Iraq. The people have started worrying about them, but the government seems to be on low-tide. The Vyapam Scandals, in the other BJP led state of Madhya Pradesh have shook the world from its head to its toe. There also the Shivraj Singh Chouhan, another BJP shining lad seems to be defending himself from the clutches of the media and the opposition parties. Uma Bharti is also having tuff time with Special Task Force (STF) teams. If the involvement of these high political personalities is proved than Modi government will have difficult time in protecting itself from the general public and the media. The recruitment of Amit Shah into the BJP frontier has also raised questions on the governance of Modi, due to the allegations on Shah for the fake encounter case of Ishrat Jahan.

Apart from all these the recent disasters be it of Rajdhani Express or a day-old GAIL Pipeline explosion. Be it related to Personal Secretary of Prime Minister or the holding of two big offices by the same hand, Arun Jaitley (Minister of both the Finance and Defense), be the violation of cease-fire by the Pakistani Forces once again on the border or the request of Irom Sharmila to repeal the AFSPA from the states of Assam and Meghalaya, till these 30 days the BJP led NDA government has seem to be off-color for the common man. According to the political experts, it will be wrong to judge the character of the new government on the basis of 30 days, but on the other hand no work has been activated by the government that could have brought the immediate relief to the citizens of India. There could have number of courses through which the BJP could have done many things in these 30 days but no substantiated steps is able to be visible on the big screen of the Indian Politics. People have started criticizing the new government, Narendra Damodardas Modi should now step up to it and should enrich the spirit of power and boldness in himself and his people for which he was known, when he was the Chief Minister of Gujarat.

 

An overview : Intellectual Property Rights

Intellectual Property RightsAashka Shah

 

 

What is Intellectual Property Rights (IPR)

Intellectual property rights are the rights given to persons over the creations of their minds. They usually give the creator an exclusive right over the use of his/her creation for a certain period of time.[1]

Intellectual Property Rights are legal rights, which result from intellectual activity in industrial, scientific, literary & artistic fields. These rights Safeguard creators and other producers of intellectual goods & services by granting them certain time-limited rights to control their use. Protected IP rights like other property can be a matter of trade, which can be owned, sold or bought. These are intangible and non exhausted consumption.[2]

 

Intellectual property refers to creations of the mind: inventions; literary and artistic works; and symbols, names and images used in commerce.[3]

 

Intellectual property, very broadly, means the legal rights which result from intellectual activity in the industrial, scientific, literary and artistic fields. Countries have laws to protect intellectual property for two main reasons. One is to give statutory expression to the moral and economic rights of creators in their creations and the rights of the public in access to those creations. The second is to promote, as a deliberate act of Government policy, creativity and the dissemination and application of its results and to encourage fair trading which would contribute to economic and social development.[4]

 

Intellectual property Right (IPR) is a term used for various legal entitlements which attach to certain types of information, ideas, or other intangibles in their expressed form. The holder of this legal entitlement is generally entitled to exercise various exclusive rights in relation to the subject matter of the Intellectual Property. The term intellectual property reflects the idea that this subject matter is the product of the mind or the intellect, and that Intellectual Property rights may be protected at law in the same way as any other form of property. Intellectual property laws vary from jurisdiction to jurisdiction, such that the acquisition, registration or enforcement of IP rights must be pursued or obtained separately in each territory of interest.[5]

 

What is a property?[6]

 

Property designates those things that are commonly recognized as being the possessions of an individual or a group. A right of ownership is associated with property that establishes the good as being “one’s own thing” in relation to other individuals or groups, assuring the owner the right to dispense with the property in a manner he or she deems fit, whether to use or not use, exclude others from using, or to transfer ownership.

 

Properties are of two types – tangible property and intangible property i.e. one that is physically present and the other which is not in any physical form. Building, land, house, cash, jewellery are few examples of tangible properties which can be seen and felt physically. On the other hand there is a kind of valuable property that cannot be felt physically as it does not have a physical form. Intellectual property is one of the forms of intangible property which commands a material value which can also be higher than the value of a tangible asset or property.

 

Types of IPR

  • Trademark
  • Copyright
  • Patent
  • Design
  • Geographical Indication
  • Trade Secret (Confidential Know How)
  • Traditional Knowledge

 

Trade Mark[7]

A trade mark is a sign that you can use to distinguish your business’ goods or services from those of other traders.A trade mark can be represented graphically in the form of your company’s logo or a signature.

Through a registered trade mark, you can protect your brand (or “mark”) by restricting other people from using its name or logo.

Once acquired, a trade mark can last indefinitely as long as you renew it every 10 years. Because a registered trade mark is a form of IP, you can license or assign it to others.

Copyright[8]

Applies to literary and dramatic works, artistic and musical works, audio and video recordings, broadcasts and cable transmissions.

Copyright is also the usual way of protecting software, although some software may be patented if it is a functional part of an invention. Copyright arises automatically; it does not need to be applied for (but can be for register purposes); and lasts 70 years after the death of the author.

 

Patent[9]

A Patent is a right granted to the owner of the patent to stop others from making, using or selling the invention that is the subject of the patent.

The monopoly granted to the patent owner can last for up to 20 years enabling the patent owner to recover costs associated with development and be rewarded financially for their efforts.  However, once the patent has lapsed, the public may use the invention described in the patent.

 

Design

A design refers to the features of a shape, configuration, pattern or ornament applied to an article by any industrial process.[10]

A design registration protects the overall appearance of a product. Almost any type of manufactured product can be protected in this way and there are very few exceptions.

The scope of registered design protection is confined to the appearance of the product; it does not protect the design’s functionality when embodied in a product of different appearance. This means that if a design incorporates a new functional component that is not limited to its appearance, patent protection may be more appropriate.[11]

 

Geographical Indication

Geographical Indications of Goods are defined as that aspect of industrial property which refer to the geographical indication referring to a country or to a place situated therein as being the country or place of origin of that product. Typically, such a name conveys an assurance of quality and distinctiveness which is essentially attributable to the fact of its origin in that defined geographical locality, region or country.[12]

For example, agricultural products typically have qualities that derive from their place of production and are influenced by specific local factors, such as climate and soil.

 

Trade Secret (Confidential Know How)

Broadly speaking, any confidential business information which provides an enterprise a competitive edge may be considered a trade secret. Trade secrets encompass manufacturing or industrial secrets and commercial secrets. The unauthorized use of such information by persons other than the holder is regarded as an unfair practice and a violation of the trade secret. Depending on the legal system, the protection of trade secrets forms part of the general concept of protection against unfair competition or is based on specific provisions or case law on the protection of confidential information.[13]

Trade Secret may include customer profile, marketing strategies, financial information, consumers , suppliers, etc.

 

 

Traditional Knowledge

Traditional knowledge (TK) is knowledge, know-how, skills and practices that are developed, sustained and passed on from generation to generation within a community, often forming part of its cultural or spiritual identity.[14]

 

Conclusion

Thus it is very important to give reorganization to the intellectual of a person and not only it is important to recognize them but also to give it a protection for the benefit of both i.e. the inventor or the creator and the society at large.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[1] http://www.wto.org/english/tratop_e/trips_e/intel1_e.htm

[2] http://www.dcmsme.gov.in/emerge/website_material_on_IPR.pdf

[3] http://www.wipo.int/export/sites/www/freepublications/en/intproperty/450/wipo_pub_450.pdf

[4] http://www.wipo.int/export/sites/www/about-ip/en/iprm/pdf/ch1.pdf

[5] http://www.caaa.in/Image/34_Hb_on_IPR.pdf

[6] http://www.caaa.in/Image/34_Hb_on_IPR.pdf

[7] http://www.ipos.gov.sg//AboutIP/TypesofIPWhatisIntellectualProperty/Whatisatrademark.aspx

[8] http://pasteur.crg.es/portal/page/portal/Internet/HIDE-Technolgy_Transfer/Tech%20Transfer%20Info/ip

[9] http://www.piperpat.com/page/new-innovation-patents#.U1S8pF2Hqho

[10] A design refers to the features of a shape, configuration, pattern or ornament applied to an article by any industrial process.

[11] http://www.davies.com.au/content/43/designs/design-protection

[12] http://ipindia.nic.in/girindia/

[13] http://www.wipo.int/sme/en/ip_business/trade_secrets/trade_secrets.htm

[14] http://www.wipo.int/tk/en/tk/

Crime and Politics

Divya Kathuria

Thank God.. we have finally got time to look at something else other than Mr. Modi, general elections and our imaginations of so called Achhe Din. But, this indeed required a great sacrifice of 2 sisters who unfortunately were born in a dalit family of U.P, and had to pay heavily for it. They were born in a dalit family, they were bound to bear atrocities of upper class, they were bound to be discriminated, they were bound to be raped! And then, instead of hanging the rapists, the innocent girls were hanged by them in turn. It is shameful that we take the rape and murder of innocent dalits as an inseparable part of our social system and accept it shamelessly. We have the power to endure any amount of ignonimny, can bear the highest levels of injustice and tolerate any kind of lawlessness and nonsense around us. If the crime is not against us, we’ll stand amongst the crowd looking at the victims bewildered and shocked and then, we’ll go home, eat, sleep and easily forget that it ever happened.

This undoubtedly is the characteristic of a country which proudly announces itself to be socialist- India, the country whose Constitution makers seek to abolish untouchability but, not caste system which is in turn, the root cause of untouchability. It’s not that crimes do not occur in other countries or crime is an anomaly in India but, it is the in-action towards crime that has sadly become a characteristic of Indian Union govt. and of States too. The unfortunate girls were brutally raped whole through the night and then, murdered. But, no FIR was lodged by the police and no other action was taken. It was brought into limelight by the media which till now was in a deep slumber on the mattress of ab ki baar modi sarkaar and thus, the Akhilesh govt. was forced to suspend two police officers reluctantly. But, do they really sympathise or do they really want to seek recourse to such kind of heinous crimes in the State especially, towards Dalits.

The answer on the face of it is NO- a big shameful NO! The politicians want nothing but, want to seek and extract votes out of the raped corpses of the raped dalit girls. Rahul baba went to the village to talk to the ladies out there. But, what was the outcome? It was nil. Instead, he wasted the taxpayers’ money on his luxurious travel expenses. Then after his visit, how could our behen ji stay behind- the former C.M. of the lawless State. She too decided to visit the kharda village. Why? To find a solution? To sympathize?  No ..the only motive is to gain votes, to come in power once again, to sit on the throne of Chief Minister of U.P. once again. This is all normal for a politician but, the incident which needs to be noticed here is that she was visiting the State to prevent crime against the minors and children but, then why the children were employed to make a helipad of Her Highness. Her actions and words as usual have failed to match.

Next comes our youngest C.M.- Mr. Akhilesh Yadav who instead of doing something about the issue considered it important to mock at the media for criticizing his govt. That was again hilarious and too daring on his part. What can be the reason behind such lawlessness in the State? I hope nobody has forgotten the words of Mr. Mulayam during his election campaign. He daringly and proudly quoted, ‘boys will be boys, they will rape but, it does not mean that they should be hanged till death’. The ideology of the ruling party in the State does nothing, but encourages rapes and surely seeks to set criminals free because it has always been a male dominated society, men will be men and they will not change.

The issue here is just not rape instead, it is the rape of dalit and its about the atrocities of dalits. Our Constitution seeks equality and seeks to abolish untouchability. Why do we want to abolish untouchability and want to keep the caste system. Lets abolish the roots themselves. Abolish this old, mythical and rotten system of castes. Why to give reservation to anybody when everybody is equal? Hy does our Constitution provide for equal treatment instead of equality itself.

I do not deny the need of giving incentives to the less privileged but, why these less privileged need to be classified according to the caste. Why do we keep caste and class in our Country on the same footing? When today, our country has developed in every aspect, why can’t we do away the system of caste. Until when the caste and class are considered the same in India, such incidents like the recent one in U.P will be rampant.

Recently, the High Court of Patna acquitted all the criminals of Ranvir Sena case in various cases of dalit massacres. It was unthinkable and the whole country was left stunned. Criminals not only repeat crimes but, also encourage others to follow their footsteps because they know in the end that law and law-makers are there to protect them.

Our State has three separate branches as we know- executive, legislature and judiciary. It won’t be appropriate to blame one single branch. It is the team work of all the three branches that has caused such upheaval. Govt. both at centre as well as at State do not bother to act until media pressurizes. Legislature has no time to make any law against such activities. And, hats off to judiciary for decisions stated as above. Last but, not the least, our very own media- 4th pillar of the State has also played a very significant role. Can we assume that after dissolution of 15th Lok Sabha till 16th May,2014, there were no rapes or any crimes in India?  But, our media did assume so because they were too busy in capturing the rallies of Mr. Modi and his whole election campaign. They project themselves as the most responsive to people’s need but, actually, they are responsive only to what can win them awards and what can bring them highest TRP. Did any news channel highlighted the incident or even reported the suffering of 17 year old dalit boy of Kharda village in Maharashtra where he was brutally beaten to death because he dared to talk to a girl from upper caste. I guess, No! But, it happened and there have been many such instances. Another example of such lawlessness is the recent incident of a minor girl who was set ablaze following a land dispute between her and accuser’s family and some even fail to come in the forefront and who does not know about the unfortunate Muzaffarnagar riots.

The blame-game is on. But, the sad part is that nobody is ready to act. This is my India, i don’t know whether i have to be proud of it, or ashamed of it or rather, make a CHANGE for it.

When are the coveted principles of Natural Justice applied in Administrative Law?

Goutham Krishna Gujaral

B.A.LL.B (Hons.)

Natural justice is indeed a humanising principle for it seeks to ensure that law is fair and just and that there occurs no miscarriage of justice. The phrases ‘substantial justice’, ‘fundamental justice’, ‘universal justice’ or ‘fair play in action’ also alludes to the notion of natural justice. It functions on the basis of preconceptions such as ‘man is basically good and hence he must not be harmed’ and ‘one ought to treat others as one would like oneself to be treated’. Though considered a highly noble concept that has much potential, there exists no definition for the same, because the vagueness and ambiguity of the concept is so much so that it has been criticized as ‘sadly lacking in precision’ as per the 1914 decision of R v. Local Government Board, ex p Arlidge[1]. In spite of its flaws, natural justice is widely accepted, adopted and enforced and is considered “an essential part of the philosophy of law.” You may disagree with the previous statement saying ‘uncertainty of law is a cardinal sin’. However, do bear in mind that the vice of said uncertainty is far outweighed by virtues such as greater possibilities of fairness and prevention of miscarriage of justice among others that the law of natural justice offers. Natural justice mandates procedural fairness and hence seeks to make the decision-making process fair and reasonable. Actions of the public authorities are also subject to be governed by the principles of natural justice. Such actions come under the ambit of administrative law for it is the law that deals with the decision-making of administrative units of the government (administrative tribunals, commissions etc).

If one were to trace the history of administrative law, he would stumble up on the conclusion that administrative law flourished as a body of law in the twentieth century because of the creation of more government agencies owing to the newly popular notion of ‘welfare state’. Though natural justice principles were in existence since ancient times, there was little intersection of the same with the realm of administrative law. In fact the very first intersection between the said realms of law occurred in 1963 in Britain in the landmark case of Ridge v. Baldwin[2] where the principle laid down by the Donoughmore Committe, that administrative decisions ought to be immune from the principles of natural justice, was set aside. In the modern day, an administrative body is expected to act with fairness in all instances even if the statute is silent about such application. Miscarriage of justice is thus sought to be avoided in earnest. This common law principle is in use in India and is highlighted by cases such as Maneka Gandhi v. Union of India[3].

The following rules are pre-requisites to the application of principles of natural justice to administrative law:

  1. The right to procedural fairness must be secured for both parties. They should be allowed to access non-confidential information and must be given sufficient time to prepare their case. Hence, both parties ought to be given proper opportunity to present their case.
  2. The persons making submissions are entitled to an opportunity to be heard.
  3. The decision-maker must be an unbiased person as regard to the case concerned. He must be someone who holds no personal interest in the outcome of the case.

Specific instances of application of natural justice principles

Specific instances of application of natural justice in administrative law fall within the ambit of disciplinary actions against:

  1. Government employees: A civil servant of the government cannot be dismissed without holding an inquiry against him and into the concerned matter. He should also be informed of the charges against him for which said inquiry is being conducted.
  2. Employees of public authorities: An employee who is employed under a public authority cannot be dismissed without being granting a fair hearing.
  3. Pensioners: It is impossible for the government to reduce or to withhold the pension of a person without giving the pensioner an opportunity to be heard.
  4. Students: A student who is facing disciplinary action cannot be expelled for he is entitled to fair hearing before appropriate authorities as per the principles of natural justice. The same is so even if his exam results are sought to be cancelled as a disciplinary action. However, it must be borne in mind that said principle does not hold true for expulsions from the institution on the basis of academic grounds.

 

General Instances of application of natural justice

  1. Discretionary powers: Black’s Law Dictionary[4] defines discretionary power as “one which is not imperative or, if imperative, the time, manner or extent of execution of which is left to donee’s discretion.” When a public official, while acting in an official capacity, decides upon an official matter solely on the exercise of his own judgement, he is exercising his power of discretion. In the exercise of such powers, the principles of natural justice must be adhered to so as to ensure that such exercise of said power is not unfettered.
  2. Right to property: Article 300-A of the Constitution of India provides for the right of a person not to be deprived of his property except by authority of law. If a person’s right to property is taken away from him by administrative action, and not by way of any written law, he is entitled to have principles of natural justice applied in case of such deprivation. For instance, in the case of Pratap v. Soni v. Gandhidham Development Authority[5] it was held that, prior to the passing of an administrative order to demolish a house the occupant ought to be given appropriate show-cause notice.
  3. Powers of search and seizure: Powers of search and seizure that are rather extraordinary are given to the State so as to ensure security of the society. The exercise of such powers by the State becomes unwarranted if they do not adhere to the principles of natural justice. For instance, in order to exercise the power of confiscation, the affected party must be given the right to be heard.
  4. Government contracts: In case of the government contracting with a private party, the principles of natural justice ought to be adhered to, provided the action has a statutory basis, as was stated in the case of State of Haryana v. Ram Kishan.[6] By way of the doctrine of fairness, it is thus possible to amend or alter the express terms of such a contract.
  5. Blacklisting: The process of blacklisting disables or disqualifies a person from dealing with the concerned authority of a particular area for certain purposes. It is a relatively modern administrative technique which Wade classifies an oppressive instrument by both legal and constitutional impropriety. In modern India, where corruption is common practice and scams are being exposed every other day, blacklisting is quite common an occurrence. The persons that are proposed to be blacklisted are to be guaranteed a right to be heard.
  6. Replacement of statutory bodies and withdrawal of benefits: Principles of natural justice must be adhered to if the government seeks to suspend or supersede a statutory body such as Panchayat or a Municipal Corporation. If a person is to be stripped of the benefits granted to him by way of administrative action, he must be granted a fair and just hearing.
  7. Licensing: Licensing equips the licensing authority with the power to regulate certain activities. Though cancellation of a license is not strictly an administrative activity, the refusal to grant a license or suspension of license before actually cancelling it constitutes an administrative action. Principles of natural justice must be applied to such cases.

Apart from the abovementioned, there exist numerous instances of administrative action where principles of natural justice must be applied. Deletion of the name of a person from the election roll, termination of citizenship of an Indian citizen owing to him having acquired the citizenship of another country, an application for winding up by a co-operative society due to insolvency etc are a few examples of the same. The fact that it is somewhat a hectic task to enumerate and elucidate such quasi-judicial and administrative functions is testament to the growth of administrative law as a body of law. It is also further testament to the necessity of the application of principles of natural justice to ensure that the concept of fair play is very much in play as far the growing realm of administrative law is concerned.

 

[1](1914) 1 KB 160 (199).

[2] [1964] A C 40.

[3](1978) 1 SCC 248: AIR 1978 SC 597: (1978) 2 SCR 621.

[4]Black’s Law Dictionary (5th Edition)

[5] AIR 1985 Guj 68.

[6] AIR 1988 SC 1301

Privacy and the Media: A Critical Analysis

Sahina Mumtaz Laskar

media

“There are laws to protect the freedom of press, but none that are worth anything to protect the people from the press”………………Mark Twain.

The media in India enjoys a great deal of freedom and when it is threatened, the response is vociferous. Nevertheless, there is the need to maintain a balance between free expression and other community and individual rights; hence this responsibility should not be borne by the judiciary alone, but by all those who enjoy these rights.

The strength and importance of media in a democracy is well recognized. It plays the role of a conscious keeper, a watchdog of the functionaries of society and attempts to attend to the wrongs in our system, by bringing them to the knowledge of all, hoping for correction. It is indisputable that in many dimensions the unprecedented media revolution has resulted in great gains for the general public. Even the judicial wing of the state has benefited from the ethical and fearless journalism and taken suo motu cognizance of the matters in various cases after relying on their reports and news highlighting grave violations of human rights. The criminal justice system in this country has many lacunae which are used by the rich and powerful to go scot-free. Figures speak for themselves in this case as does the conviction rate in our country which is abysmally low at 4 percent. In such circumstances the media plays a crucial role in not only mobilizing public opinion but bringing to light injustices which most likely would have gone unnoticed otherwise.

The Indian media enjoys two fold protections under the Constitution, in the form of Article 19(1) (a) [freedom of free speech and expression] and Article 19(1) (g) [freedom to engage in any profession, occupation, trade or business]. In today’s world, it is very difficult for any medium to strike a balance between responsibility to do good work and the urge to gain more profit and thus on this point the conflict of the media with the privacy of a person is coincided.

It is true that the freedom of media is the very test upon which a democratic nation belongs. Liberty is an essential ingredient of any society. Almost, the Preamble of every Constitution declares a common object, that is – to secure liberty of thought and expression but liberty when disturbs morality becomes a bane rather than a boon. Thus, the media should be aware of its huge responsibility upon the society and work accordingly.

Our Constitutional framers could foresee that if the freedom of press is not regulated without any restriction how it can create havoc in the society and thus they mandated the restrictions upon Article 19(2). But law cannot become enforceable if it is restricted only to books, statutes, Acts etc. Judicial interpretation is a core element for the law to be validated.