The Legal Framework of Comparative Advertising

Introduction

Advertising exists today in a business environment made increasingly competitive by factors such as global presence and media-clutter . According to market experts advertisements have become one of the most important tool for companies of all lengths and breadths across the globe to grow their businesses. The impact that a brand makes from its catchy advertisement in a customer’s mind is simply unmatched when compared to other brand endorsement practices. A few seconds video, establishing effective emotional bonding with the customer can do wonders for the product and for the brand-image of the company. The depiction of the telecom giant Airtel in its series of indigenous advertisements connecting directly with the common man’s heart has helped it to evolve as a brand bigger than just another telecommunication company.

But while looking at not so healthy practice of “comparative advertising”, comparing one’s own products or services with those of a competitor in the market place can indeed be an effective tool in persuading the public of the associated advantages. Because comparison plays very important role when customer is choosing from a bunch of similar goods, which are alike in almost everything, in that case the image created by the advertisement is judgmental. “Comparison lies at the root of modern advertising” . In a Competitive environment, every representation of a product or service is about what ‘others are not’ . The two main purposes fulfilled by comparative advertising is firstly, of highlighting of special features of a product or service, aiming at increasing the enticement for the product or service in the minds of potential consumers, and secondly, the comparative statement directly position the product or service as not just potential but as the only best substitute to an already established product or service.

Any marketing measure that- implicitly or explicitly-identifies a competitor or goods and services offered by a competitor falls into the category of comparative advertising.

Commercial advertising needs the power of seduction but should be within the boundaries of fair competition .

 

 

The laws/ Regulation of Comparative Advertising in India:

 

With the liberalization and globalization of the Indian economy, firms have been aggressively and vigorously promoting their product and services. Not just the consumers but even such multinationals need adequate law against unfair trade practices to have some ‘rules of the game’ for competing among themselves . In the changing context of proliferation of advertisements, the law needed to be further strengthened in its application. The present protection is available under the Consumer Protection Act , but within the structure of the Consumer Protection Act, competing firms cannot be ‘consumers’ to approach a consumer forum. This act protects two key rights, namely:

• the right of the consumer to be informed about the quantity, potency, purity, standards and price of goods to guard against unfair trade practices; and

• the right to consumer education.

 

The Monopolies and Restrictive Trade Practices Act (MRTP Act-1969) has metamorphosed into the new law, Competition Act, 2002. Until it was repealed by the new Act of 2002, Section 36A(x) of the MRTP Act 1984 provided a basis upon which a claim could be made against disparagement of goods. Section 36A(x) limited comparative advertising by recognizing that the publishing of any misleading or disparaging facts about a competitor’s goods or services amounted to ‘unfair trade practice’. The new law is designed to repeal the extant MRTP Act. As of now, only a few provisions of the new law have been brought into force and the process of constituting the regulatory authority, namely, the Competition Commission of India under the new Act, is on. The remaining provisions of the new law will be brought into force in a phased manner. For the present, the outgoing law, MRTP Act, 1969 and the new law, Competition Act, 2002 are concurrently in force .

An Overview of Competition Act, 2002.

Competition Law for India was triggered by Articles 38 and 39 of the Constitution of India. These Articles are a part of the Directive Principles of State Policy. Pegging on the Directive Principles, the first Indian competition law was enacted in 1969 and was christened the Monopolies And Restrictive Trade Practices, 1969 (MRTP Act). Articles 38 and 39 of the Constitution of India mandate, inter alia, that the State shall strive to promote the welfare of the people by securing and protecting as effectively, as it may, a social order in which justice social, economic and political shall inform all the institutions of the national life, and the State shall, in particular, direct its policy towards securing.

1. That the ownership and control of material resources of the community are so distributed as best to sub serve the common good; and

2. That the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment.

It is suggested that, the pending UTP cases in the MRTP Commission may be transferred to the concerned consumer Courts under the Consumer Protection Act, 1986. The pending MTP and RTP Cases in MRTP Commission may be taken up for adjudication by the CCI from the stages they are in.

The Competition Commission was of the view that the Competition Act should not be burdened with unfair trade practices . This was instead, to be given effect under the Consumer Protection Act, 1986.

Section 4 enjoins that no enterprise shall abuse its dominant position. The philosophy of the Competition Act is reflected in this provision, where it has been made clear that a situation of monopoly per se is not against public policy but, rather, the use of the monopoly status such that it operates to the detriment of potential and actual competitors.

The Act therefore targets the abuse of dominance and not dominance per se. This is indeed a welcome step, a step towards a truly global and liberal economy.

The Advertising Standards Council of India

 

Advertising Standards Council of India is a self regulatory voluntary organization of the advertising industry registered under section 25 of the Indian Companies Act.. It is a commitment to honest advertising and to fair competition in the market-place. The Role and Functioning of the ASCI & its CCC (Consumer Complaints Council) in dealing with Complaints received from Consumers and Industry, against Advertisements which are considered as False, Misleading, Indecent, Illegal, leading to Unsafe practices, or Unfair to competition, and consequently in contravention of the ASCI Code for Self-Regulation in Advertising .

Eighty percent of the complaints Upheld by the CCC resulted in advertisements being either withdrawn or modified appropriately by the Advertisers/Agencies involved . Implementation of CCC decisions – as a result of prompt and effective follow ups, there have been positive responses received from advertisers and agencies, in respect of CCC recommendations on complaints which were upheld.

Also, the Trademarks Act, 1999 (Section 28(9)-notified with effect from September 15, 2003) mandates that the use of a registered trademark by an advertiser results in infringement if it:

• takes unfair advantage of the mark’s reputation;

• in contrary to honest practice in industrial or commercial matters;

• is detrimental to the mark’s distinctive character; or

• damages the reputation of the trade mark.

In addition to these,

Article 19 (1) (a) of the Constitution of India, explicitly protects freedom of speech and expression. However, the freedom of speech and expression has limitations. Article 19(2) permits the state to limit the freedom:

… in so far as such law imposes reasonable restrictions … in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.

The question had arisen before the Supreme Court whether advertisement was ‘commercial speech’ and, thus, had the protection of Fundamental Right under Article 19(1) (a). The Supreme Court had maintained in its judgment:

… “Commercial speech” cannot be denied the protection of Article 19(1)(a) of the Constitution merely because the same are issued by businessman.

The Supreme Court was categorical in its position in the Tata Yellow Pages Case:

Advertising as a “commercial speech” has two facets. Advertising which is no more than a commercial transaction is nonetheless dissemination of information regarding the product advertised. Public at large is benefited by the information made available through the advertisement. In a democratic economy free flow of commercial information is indispensable. There cannot be honest and economical marketing by the public at large without being educated by the information disseminated through the advertisements.

The economic system in a democracy would be handicapped without there being freedom of “commercial speech” .

The Supreme Court had further continued:

Examined from another angle, the public at large has a right to receive the “commercial speech”. Article 19(1) (a) not only guarantees freedom of speech and expression, it also protects the rights of an individual to listen, read and receive the said speech. So far as the economic needs of a citizen are concerned, their fulfillment has to be guided by the information disseminated through the advertisements. The protection of Article 19(1) (a) is available to the speaker as well as to the recipient of the speech. The recipient of “commercial speech” may be having much deeper in the advertisement than the businessman who is behind the publication.

Law Relating to Disparaging Advertisements in India

Turning to the development of law on the issue in India, it appears that the earliest decision was that of the Calcutta High Court in Chloride Industries Ltd vs. The Standard Batteries Ltd , It was an action brought forth by the manufacturers of Exide Battery against their competitor on the ground that the competitor indulged in disparagement. A single Judge of the Calcutta High Court held therein that if the goods are disparaged maliciously or with some other such intent to injure and not by way of fair trade rivalry, the same would be actionable.

Following the position of American Courts, the MRTP Commission has recognized even ‘a certain degree of puffing up of one’s product’ and generic ‘puffery’ is not actionable .

The principles, as stated in the case of Reckitt & Coleman of India Ltd v Kiwi TTK Ltd. , are as follows:

• An advertisement can declare that the advertised goods are the best in the world, even though this declaration is untrue;

• An advertisement can state that the advertised goods are better than those of competitors, even if this statement is untrue;

• An advertisement can compare the advertised goods with those of competitors;

• An advertisement cannot, while stating that the advertised goods are better than those of a competitor, state that the competitor’s products are bad, as this would be defamation; and in a case of defamation, damages can be claimed. The court can also grant an injunction against repetition of the defamatory action.

The next decision is also that of the Delhi High Court in Pepsi Co., Inc. And Ors. vs. Hindustan Coca Cola Ltd . In that case, an advertisement in which a boy was shown preferring THUMS UP to PEPSI on the ground that the former was a stronger drink while the latter was meant for children, was in issue. The Division Bench of the Delhi High Court held it to be disparagement.

In Reckit Benckiser (India) Limited vs. Naga Limited and Others , the Delhi High Court was concerned with an advertisement in which Dettol soap was allegedly shown in poor light by the manufacturer of an Ayurvedic soap. But the plaintiff sued only for injunction and did not claim damages. Therefore, the learned Judge of the Delhi High Court refused to grant an injunction on the ground that in the absence of a primary and substantive claim (for damages) the relief of injunction would ordinarily be barred.

The advertisement asking the viewers to forget CHYAWANPRASH in summer season and to take to AMRITPRASH, was the subject matter of dispute in Dabur India Ltd vs. Emami Ltd. A learned Judge of the Delhi High Court quoted with approval all the above decisions.

Also, in Karamchand Appliances Pvt. Ltd vs. Sh. Adhikari Brothers and Ors. , the Delhi High Court was concerned with mosquito repellents ALL OUT and GOOD NIGHT. The offending advertisement showed a lady removing the ALL OUT pluggy and replacing it with GOOD NIGHT with a background voice claiming that the latter’s turbo vapour chases the mosquitoes at double the speed. The court granted injunction.

A new approach

One case, however, has marked a significant departure from the settled traditional approach. In the case of Colgate Palmolive (India) Limited v Anchor Health & Beauty Care Private Limited , Madras High Court held that false claims by traders about the superiority of their products, either directly or by comparing them against the products of their rivals, were not permissible.

In this case, an advertisement was telecast by the defendant, Anchor, claiming that:

• Its product was the only toothpaste containing the ingredients calcium, fluoride and triclosan;

• It was the first all-round protection toothpaste;

• The fluoride in Anchor toothpaste gave 30% more cavity protection;

• And the triclosan was ten times more effective in reducing bacteria.

The plaintiff, Colgate, objected to these claims, stating that it was the pioneer in the field and that its own toothpaste contained all these ingredients prior to Anchor. Colgate further said that the Anchor’s statement with regard to fluoride protection, and efficiency of triclosan was false and misleading as the amount of fluoride in toothpaste is mandated by Rule-149-A of the Drugs and Cosmetic Rules. Although, a mere puff within the tolerance limits is permitted by law. But, a claim which exceeds the said limit would amount to disparagement of the other people’s product and therefore, should not be allowed to continue.

In its interim order, the court restrained Anchor “from using the words ‘only’ and ‘first’ in the offending advertisement, in such a manner that it does not send a message to the consumer that it is the only product with these characteristics. This seems to be the first time a court has included consumer interest in its analysis of such advertising unlike before. Court further said that in a Country with limited resources and a low literacy level, is possible only by allowing a free play for the trade rivals in the advertising arena, so that each exposes the other and the consumer thereby derives a fringe benefit.

“Therefore, it is only on the touchstone of public interest that such advertisements are to be tested.”

Further, the Court said that restrictions contained in statutes such as the MRTP Act and the Consumer Protection Act (Section 2(1) (r)) satisfies the test of reasonable restrictions allowed by Article 19(2) of the Constitution.

To sum up, the law as it stands today, does not appear to tolerate puffery anymore. In the light of ‘public good’ advertisements, the court cited two instances as an exception to this- namely, if an advertisement is motivated by malice, and if it is false.

Hindustan Unilever Limited vs. Procter & Gamble

In the recent case of HUL vs. P & G , the Petitioner claimed that a television commercial of respondent in respect of “Fairness Cream” has disparaged its product. Such disparagement is not by name, but is so subtle that it communicates to the viewer that like products of others are lacking in something. This representation is false as Niacinamide is the only component which has a lightening effect and the products both of the petitioner and the respondent contain this only. The “innuendo” that the fairness cream of others works on the surface (jaise ye kaam kare sirf upar se) shows the petitioner’s product in bad light. The court said that such comparison is permitted as there is no direct attempt made by the respondent to defame HUL’s Product and there is no economic loss been established. Similar, was the dispute between the products RIN and TIDE respectively, of the same companies.

 

Advantages and Disadvantages of Comparative Advertising:

Advantages

• Direct comparisons provide for more meaningful data about the product or service, thus enabling potential purchasers to make more intelligent and sound purchasing decisions .

• By emphasizing the features of a distinct product they are informative.

• Advertisers use the claim of one product’s superiority over the competitor’s product mostly in the attempt to increase market share in an already somewhat established market of brand leaders .

Disadvantages

• Deceptive and uninformative claims may contribute to the confusion of consumers and disparage targeted competitors.

• It’s looked upon as “pulling oneself up on someone else’s bootstraps and thus offensive” .

Conclusion:

Comparative Advertising, when truthful and non-deceptive, is a source of important information to consumers and may assist them in making rational purchase decisions .

The ideal legal framework for comparative advertising puts consumers in the position to be the judges of the comparison, if the falsity of the claim is exposed by the rival, the consumer stands to benefit by the knowledge derived out of such exposure. Because, in a free market economy, the products will find their place, as water would find its level, provided the consumers are well informed . With the comparison providing truthful facts about the competing products or services; such an approach will falsify all those pre-conceived notions which place the advertiser in the role of judge for the same activity in which it is participating. Where such a scenario can be achieved, fears that comparisons reduce the credibility and effectiveness of an advertisement are unwarranted. Appropriate law, adequate enforcement, infrastructure and quick dispute settlement mechanism would be needed to sustain competition.

Endnotes:

1. “Advertising Matters”, The Globe and Mail- Report on Business, February 2004, at 61.

2. Cornish, W., “Intellectual Property”(4th Edn., Page 656).

3. Comparative Advertising in India: need to strengthen regulations, The Financial Express: Posted on June 25, 2005.

4. Ricardo Richelet, Argentina- Comparative Advertising, Building and enforcing intellectual property value 2005.

5. Akhil Pathak, Liberalisation and Law on Comparative Advertising in India, Available at < http://www.iimahd.ernet.in/publications/data/2004-01-02akhilpathak.pdf>

6. Consumer Protection Act, 1986.

7. The MRTP Act-1969.

8. Report of the High Level Committee on Competition Policy and Law, May 2000.

9. Available at < http://www.ascionline.org/> accessed 3rd July ’10.

10. Available at < http://www.ascionline.org/goals/roleasci.htm> accessed 3rd July’10.

11. Article 19, Constitution of India.

12. Tata Press Limited v Mahanagar Telephone Nigam Limited and Others, 1995, AIR (SC) 2438.

13. Hindustan Lever Limited v Mudra Communications Limited and Another (Decision of MRTP Commission), 2002 (50) CLA 1.

14. Decided on 30.9.1994.

15. M Balasundram v Jyothi Laboratories and Another (Judgment of the MRTP Commission); 1995(82) CC 830.

16. Reckitt Benckiser v Hindustan Lever, 2008(38) PTC 139(Del).

17. 63(1996) DLT 29.

18. (2003 (27) PTC 305 (Del)).

19. {2003 (26) PTC 535}.

20. {2004 (29) PTC1}.

21. {2005 (31) PTC 1 (Del)}.

22. (2008) 7 MLJ 119.

23. Ameet Datta, Comparative Advertising in India- puff under scrutiny: Published in World Trademark Review- December/January 2010.

24. Judgment by Calcutta High Court-Dated 15.2.2010.

25. Manuel Morasch, Comparative Advertising: A comparative study of trade-mark laws and competition laws in Canada and the European Union, 2004.

26. Ng, Catherine, “The limits of Comparative Advertising in Civil Actions: Just when you dare to compare” (1998) 15 C.I.P.R., at 143.

27. So Gross, Eric W. and Mulholland, Sylvia, “Comparative Advertising: Trial by Injunction and the Death of Brand X”, 12 C.I.P.R 1995, at 30.

28. Dominguez Perez, Eva M.”Review of Comparative Advertising-German Case Law in light of EC Directive,” IIC Volume 32, 1/2001, 20, at 25.

29. Colgate-Palmolive (India) Limited v Anchor Health & Beauty Care Private Limited, (2008) 7 MLJ 1119.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

PUBLIC POLICY SETTING ASIDE ARBITRAL AWARD

Vivek Kerketta

Introduction

Public policy is an attempt by the government to address a public issue. The government, whether it is city, state, or federal, develops public policy in terms of laws, regulations, decisions, and actions. There are three parts to public policy-making: problems, players, and the policy.

The problem is the issue that needs to be addressed. The player is the individual or group that is influential in forming a plan to address the problem in question. Policy is the finalized course of action decided upon by the government.

It is this lack of definition and certainty of the concept which has led to judicial statements against the extension of public policy. The doctrine of public policy is somewhat open-textured and flexible, and this flexibility has been the cause of judicial censure of the doctrine. By far, the most famous expression of disapproval against public policy is its description as a ‘very unruly horse’ which ‘you never know where it will carry you’.

Other expressions of disdain include descriptions such as “a treacherous ground for legal decision” and “a very unstable and dangerous foundation on which to build until made safe by decision”. However, in the second half of the 20th century, the positive function of the court in matters of public policy increasingly gained recognition. In fact, Lord Denning stated, “With a good man in the saddle, the unruly horse can be kept in control. It can jump over obstacles. It can leap the fences put up by fictions and come down on the side of justice.”

The public policy in relation to international commercial arbitration is that The UNCITRAL Model Law Commission stated in its report that the term “public policy” comprises “fundamental principles of justice”. It was understood that the term public policy which was used in the 1958 New York Convention and many other treaties, covered fundamental principles of law and justice in substantive as well as procedural respects. Thus, instances such as corruption, bribery, or fraud and similar serious cases would constitute a ground for setting aside an award.

 Public Policy for India

Public Policy

“It is never argued at all, but when other points fail” said by Burrough. J

The 1996 Act S. 34(2) (b) (ii) provides that if the award is in conflict with public policy of India it can be set aside. However the term “public policy” has not been defined anywhere in the act. Simplistically speaking, the expression “public policy” connotes some matter which concerns the public good and public interest. An attempt to define public policy was made by Winfield when he identified it as “a principle of judicial legislation or interpretation founded on the current needs of the community”. However, current needs being a changing concept, it is impossible to pigeon hole the same.

There are two conflicting positions with respect to ‘public policy’ which is especially witnessed in English decisions, usually referred to as the ‘narrow view’ and the ‘broad view’. According to the ‘narrow view’, courts cannot create new heads of public policy while the ‘broad view’ permits judicial law making. Indian courts over the years, till the infamous ONGC verdict has been inclined towards a narrow interpretation of the term public policy.

Public Policy means the principles and standards regarded by the legislature or by the court as being of fundamental concern to the State the whole of the society. The Supreme Court attempted by the following explanation of the concept:

The phrase “public policy of India” occurring in section 24(2) (b) is not defined in the Arbitration Act. The concept ‘public policy’ is considered to be vague, susceptible to narrow or wider meaning in the context in which it is used. Hence, it should be given meaning in the context and also considering the purpose of the section.

According to section 23 Indian Contract Act state that- What considerations and objects are lawful and what not – “The consideration or object of an agreement is lawful, unless -It is forbidden by law or is of such nature that, if permitted it would defeat the provisions of any law or is fraudulent; of involves or implies, injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy.”- In Gurmukh Singh v. Amar Singh , demonstrated that the agreement between appellant and the respondent was only to participate an action of evacuee property. There was no intention either to bring down the price or to defraud the government to sell the same at lower price. Therefore the object of the agreement was not opposed to public policy, a priori, it was not valid under section 23 of the Indian Contract Act.

The act does not define the expression ‘public policy’ opposed to public policy of a particular government. It connotes same matter which concerns public good and interest. The phrase ‘public policy of India used in section 34 in context is required to be given a wider meaning. The concept of public policy connotes some matter which concerns public good and public interest. What is for public good or interest or what would be injurious or harmful to public good or interest has varied from time to time. An award which is, on the face of it, patently in violation of statutory provision cannot be said to be public interest.

Setting Aside of Arbitral Award and Relation with Public policy

In the Arbitration and Conciliation Act, 1996, provides as:-

a. Section 34 (2) (b) (ii) states that arbitral award may be set aside or remitted to the arbitral tribunal for reconsideration by the country if it finds that Arbitral Award is in Conflict with public policy of India. It further explains that an award is conflict with public policy with Public Policy of India if the making of award was induced or affected by fraud, corruption or was violation of section 75 or 81

b. Section 48 (2) (b) enforcement of foreign arbitral award as defined article 44 of (New York Convention Award)may be refused if court finds enforcement would be contrary to the Public Policy of India. The provision also explains that an award is in conflict with Public Policy of India if it was induced or affected by fraud or corruption.

c. Section 57 (1) (e) also states that order that foreign award as defined article 53 (Geneva Convention Award) may be enforceable, it shall be necessary that the enforcement of is not contrary to Public Policy or Law of India.

The enforcement of an award as to be refused as being contrary to public policy if it is contrary to the fundamental policy of Indian law, country’s interest and its sense of justice and morality.

 Ground for aside Arbitral Award:

Fraud- The term ‘fraud’ has been defined in section 17 of the Indian Contract Act 1872, which reads as:

Fraud means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, which intent to deceive another party thereto or his agent, or to induce to enter into the contract-

– The suggestion, as to a fact, of that which is not true by one who does not believe it to be true.

– The active concealment of a fact by one having knowledge or belief of the fact.

– A promise made without any intention of performing it.

– Any other act fitted to deceive.

Explanation- Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud, unless the circumstances of the case are such that regard being had to them, it is the duty of the person keeping silence to speak, or unless his silence is in itself, equivalent to speech.

Fraud is a term that should be reserved for something dishonest and morally wrong and such wrong, and much mischief is done as well as much pain inflicted by its use where ‘illegally’ and ‘illegal’ are the real appropriate expression. Chief Justice Edward Coke said, ‘fraud avoids all judicial acts ecclesiastical or temporal. Fraud however is inconsistent with claim of right made in good faith to do the act complained of.

The decision of Supreme Court in SP Chengalvaraya Naidu v. Jagannth, provides an example where it set aside a decree obtained by a party concealing a vitally relevant document from trail court. Here, a plaintiff had obtained the preliminary decree for partition of property, without disclosing to the trail court the release deed with respect to the property executed by him in favour of his employer. The court held that non-disclosure of the release deed before the court was tantamount to plain fraud on the court vitiating the decree.

Corruption-

The Explanation to section 34(2) (b) (ii), clarifies that an award induced or affected by corruption in addition to fraud will be liable to be set aside as being in conflict with the public policy of India. The expression ‘corruption’ has been defined either in the Indian Contract Act, 1872. Corruption of an arbitrator means ‘moral obliquity’ it is a false and misleading metaphor to speak of an arbitrator honest mistake, whether it is of excess or defect, as ‘constructive corruption.’ There is a general principle of law that a domestic award or a foreign award which is induced or affected by corruption, is invalid as well as unenforceable and it cannot sanctioned by the courts.

It is not easy to define corruption, it is not necessary that the arbiter should have been bribed, nor is it necessary that there should be some other form of venality or gross immorality or flagitious conduct.

In Air Corporation Employees Union v. DV Vyas the high court pointed out that the hospitality of the Corporation accepted by the Chairman could not be considered to be formal or niggardly not merit attention. Chandrachud, J said that ‘courts have always zealously upheld the principles that it is not merely sufficient that justice is done but that justice must seem to be done. Though the word ‘corruption’ was not used, the award was quashed for the mere fact that this type of hospitality was accepted.

Confidentially-

Under section 75 of the Arbitration and Conciliation Act, 1996, this provides that ‘now standing anything contained in any other law for the time being in force on India, the conciliator and the parties shall keep confidential all matters relating to the conciliation proceedings.

The provision of this section extended to the application of public policy of India in section 34(2) (ii), the explanations to which for the Avoidance of any doubt, declares that without prejudice to the generally of the expression ‘public policy of India’, if an award inter alia, is in ‘violation of section 75 of the 34(2) (ii), the words ‘conciliator’ and ‘conciliation’ used in section 75 shall have to be substituted for the words ‘arbitrator’ and ‘arbitration.’

Domestic arbitration’ of international commercial arbitration’ is not a public affair; it is essentially a process of private nature. In the language of Stephen Bond, J said- ‘the users of international commercial arbitration, i.e. the companies governments and individuals who are parties in such case, places the highest value upon confidentially as a fundamental characteristic of international commercial arbitration. The features of international commercial arbitration which attracted parties to it, as opposed to litigitation, confidentially of the proceedings and the resulting award would not enter into the public domain were almost invariably mentioned’.

Inadmissibility of evidence in other proceedings-

The explanation to section 34(2) (b) (ii), by reference the provision of section 81 in it. The provision mandates; ‘the parties shall not rely on or introduce as evidence in arbitral or judicial proceedings, whether or not such proceedings relate to the dispute that is subject of the conciliation proceedings-

– Views expressed or suggestion made by the other party in respect of a possible settlement of the dispute.

– Admission made by the other party in the course of the conciliation proceedings.

– Proposals made by the conciliator.

– The fact that the other party had had indicated his willingness to accept a proposal for settlement made by the conciliator

Thus, without prejudice to the generally of the expression ‘public policy of India’ as used in section 34(2) (ii), an award is in conflict with the public policy of India’, if it is violation of the provision of section 81 of the Act.

Misconduct- Section 30 of the Arbitration Act, 1940 provided that an arbitral award was liable to set aside where ‘an arbitrator or umpire has misconduct himself or the proceedings’. Though the term ‘misconduct’ was not defined in that Act, nevertheless misconduct, as crystallized by the judicial decision, covered a wide range of errors on the parts of the arbitrator.

“An award can be set aside for misconduct if the arbitrator has received bribes, or if he is secretly interested in the subject matter of the dispute. Misconduct may exist where no improper motives are imputed to the arbitrator. It is misconduct, for example, to make an award on a illegal contract.”

Misconduct was before the Supreme Court in V.G.Gorege v. Indian Rare Earths Ltd, a case of misconduct exists where the amount awarded by the arbitrator is contrary to his findings.

“The arbitrator may be a most recpectable person, but even so, his conduct cannot be reconciled to general principles. A judge must not take upon himself to say whether evidence improperly admitted had or had not any effect upon his mind. The award may have done perfect justice, but upon general principles it cannot be supported.

Legislatative Perspective

The Principle of public policy has been stated by Lord Mansfield in Holman v.Johson in following language:

The principle of public policy is this: ex dolo malo non oritur actio. No court will lend its aid to a man who founds his cause of action upon immoral or illegal act. If from the plaintiff own stating or otherwise, the cause of action appear to arise ex trupi causa, or the transgression of positive law of country, there the court says he has no right to be assited.

Public policy targets protection and promotion of public welfare. It is the principle of, under which freedom for contract or private dealings is restricted by the law for the good of community.

The general concept of public policy comprehends a wide range of topics categorized under certain heads. Agreement may offend against public policy by tending to prejudice of state in time of war (trading with enemies, etc), by tending to the perversion or abuse of municipal justice or in private life by attempting to impose inconvenient and unreasonable restriction on free choice individual marriage or their liberty to exercise any lawful trade or calling.

In the Indian constitution also in preamble it is well said “WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens: JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and of opportunity; and to promote among them all FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation.”

The Sovereign, Socialist, Secular, Democratic, Republic all this status comes only when good policy is formed and its enacted by the Government. The American President George Washington said- By the people, for the people, of the people, the public policy should be made in such a way that it benefits or works for the people only. It must be made for interest of the society.

Under Indian Constitution the Fundamental Right in Right to Freedom article 19 (4) restrict the right of the individual if the any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said clause.

Thus fundamental right can also be restricting if the public policy is against the interest of the society or individual because it disturb and violates the sovereignty and integrity of a country. So the policy must be made by seeing or needs the rights and duties of the individual and society.

The section 23 says that the consideration or object of an agreement is lawful, unless- It is forbidden by law or is of such nature that, if permitted it would defeat the provisions of any law or is fraudulent, of involves or implies, injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy.

Therefore, the contract i.e. (agreement) between the parties should be made in such way that it does not oppose the public policy which hampers the interest of the society and individual.

 

 Judicial Intervention

The Indian legislature and judiciary have a fundamental choice to make- to respect party autonomy and finality of arbitral awards as envisaged by the 1996 Act or impose judicial supervision on arbitration and revert to the days of the 1940 Act. This choice will shape the course of Indian arbitration for the next decade and beyond.

In recent years, all over the world, a shift has been encouraged from litigation to alternative methods of dispute resolution such as arbitration, mediation, and conciliation etc., in an attempt to overcome the problem of inordinate delay in disposal of cases that litigation entails. In India especially, the attempt of the parliament which aims to bringing about cost-effective and expeditious resolution of disputes and further preventing multiplicity of litigation by giving finality to an arbitral award.

Prior to the enactment of the 1996 Act there was widespread discontent over the excessive judicial intervention allowed by its predecessor, the 1940 Act. The 1940 Act permitted courts to set aside an arbitral award where “the award had been improperly procured or otherwise invalid.”

The 1996 act attempted to rectify this problem by limiting the basis on which awards could be challenged to a few narrow grounds (which mirrored those found in the UNCITRAL model law and New York Convention on the Recognition and enforcement of Foreign Arbitral Awards).

The recent decision of the Apex Court in ONGC vs. Saw Pipes where a broad interpretation was given to the expression ‘public policy’, has given an unexpectedly different dimension and direction to S. 34. The objective behind this research is to examine the merits of having a broader notion of public policy in connection with setting aside arbitral award and also to look into the possible problems that could crop up due to this, especially the effect on finality of arbitral awards.

In case where the validity of the award is challenged, there is no necessary of giving a narrower meaning to the term “public policy of India”. Om the contrary, wider meaning is required to be given so that a “patently illegal award” may set aside.

Principles lay down under Section 34 states that an award may be set aside if it is contrary to:-

• Fundamental policy of Indian law,

• The interest of India,

• Justice or morality,

• If it is patently illegal.

In Renusagar Power Plant Co. Ltd. v. General Electric Co. the court in view of the absence of a workable definition of “international public policy” found it difficult to construe the expression “public policy”. In the Renusagar case, while giving narrow meaning to the expression ‘public policy of India’ the Apex Court observed that “It is obvious that since the Act is calculated and designed to subserve the cause of facilitating international trade and promotion thereof by providing for speedy settlement of disputes arising in such trade through arbitration, any expression or phrase occurring therein should receive, consisting with its literal and grammatical sense, a liberal construction.”

The court further declared “patent illegality” to mean that the award is contrary to the substantive provisions of law or the provisions of the 1996 Arbitration Act or against the terms of the contract. Thus “error of law” was now included as a ground to set aside the award, thereby making the provision of S. 34 an appellate provision rather than one to be used as an application to set aside the award. In order to justify adding “error of law” as a ground to set aside the award, in light of a contrary precedent in place, the court distinguished between the two cases on the ground that while Renusagar was dealing with a foreign arbitral award, the award in the instant case is a domestic one and thus “error of law” could be used as a ground to set it aside. In light of this reasoning, it can be safely assumed that the court did not intend S. 34 to apply to foreign arbitral awards and the separate provision provided in the Act i.e. S. 48 was to apply in these circumstances

The Supreme Court distinguished Oil & Natural Gas Corporation Ltd v. Saw Pipes Ltd. from that of Renusagar Power Co. Ltd v. General Electric Co. on the ground that the Renusagar judgment was in context of a foreign award, while the ratio of SAW Pipes would be confined to domestic awards only.

The most recent decision of the Supreme Court on the subject of setting aside an award on the ground of public policy under Section 34 is Venture Global Engineering Vs. Satyam Computer Services Ltd. Based on the earlier judgment in Bhatia International v. Bulk Trading S.A. and Anr., the Supreme Court in this case held that it is open to the parties to exclude the application of the provisions of part I by express and implied agreement, failing which the whole of part I would apply.

The Supreme Court in its judgment of ONGC v. Saw Pipes Ltd has ruled that an arbitral award can be challenged under Section 34 of the 1996 Act on the ground that it violates the public policy of India, inter alia, because it is contrary to the fundamental policy of Indian Law, justice and morality or is ‘patently illegal’.

The arguments against setting aside awards based on an expansive reading of “public policy” turn on questions of the importance of party-autonomy and minimal judicial interference. It is on this basis that the decision in ONGC v. Saw Pipes has been heavily criticized. However, a refusal to set aside an illegal award under the guise of party autonomy effectively mean that parties are allowed to do indirectly what they cannot do directly.

This was in contrast to the Apex court’s observations in Narayan Prasad Lohia v. Nikunj Kumar Lohia wherein it was held that if an award was in accordance with the agreement of the parties, it may not be set aside by the court. But, as per the ONGC case, the award must be in accordance with the agreement of the parties and the agreement of the parties must lie within the parameters prescribed by the non-derogable provisions of Part I. If the award does not meet the said criteria, it may be set aside, via Section 34(2)(a)(v) read with Section 28(1)(a) of the Act.

Renusagar was a case of private international law involving enforcement of a New York Convention foreign arbitral award governed by the Foreign Awards (Recognition and Enforcement) Act, 1961 of India which was based on the principle of speedy enforcement of arbitral awards with minimum court interference..

The court in Venture Global Engineering vs. Satyam Computer Services Ltd. wherein the court held that it is permissible to set aside a foreign award in India by applying the provisions of S. 34 of Part I of the Act i.e. it held that unless otherwise agreed upon by the parties, Part I of the act also applies to foreign awards which could thus be set aside for violating Indian statutory provisions and for being contrary to Indian public policy.

 

 

 Conclusion

The scheme of the Arbitration and Conciliation Act, 1996 is very clear- to minimize court interference in the arbitral process and to ensure speedy enforcement of arbitral awards without the intervention of courts on unlimited grounds and aforementioned judgments have adopted a very strained interpretation of the Act. In such a situation to allow an expansive reading of ‘public policy’ would nullify the entire purpose. Finality being the most attractive and unique feature of arbitration has been struck at its very roots by the expansive interpretation of the term ‘public policy’ by the ONGC court, as a result of which arbitration as it now stands in India is just another step in the appeal process.

Further, the challenging of International awards and their setting aside on the ground of them being against the public policy and by applicability of Part I of the Act posses a potential threat to the basic foundation of International Commercial Arbitration. However, there are two legislative proposals before the Indian Parliament which indicate that the legislature did not intend to include “error of law” as a public policy ground under S.34 (2) (b) (ii) of the Act. Both the April 2001 Bill and December 2003 Bill, have proposed amendments to the 1996 Act as follows:

“34 A (1) In the case of an arbitral award made in an arbitration other than an international arbitration (whether commercial or not), recourse to the following additional grounds can be had in an application for setting aside an award referred to in sub-section (1) of section 34, namely–(a) that there is an error which is apparent on the face of the arbitral award giving rise to a substantial question of law …”

To sum up, it can be said: “Public Policy can be a ‘double-edged sword’ in arbitration- ‘helpful as a tool, dangerous as a weapon’.”

ENFORCEMENT OF IPR WITH REFERENCE TO BORDER SECURITY MEASURES

VIVEK KERKETTA

INTRODUCTION

The recognition of the need to protect of intellectual property especially with regard to counterfeit trademark and pirated copyrighted goods, the enforcement of intellectual property rights at the borders has emerged as a significant issue in recent times. In view of this, the scheme of border measures has been discussed internationally at various flora including the World Trade Organization, the World Customs Organization, and the World Intellectual Property Organization as well as during negotiations of many multilateral and bilateral free trade agreements.

India too, sought to enable right holders to enforce intellectual property rights at the border and, thereby, enhance border protection of intellectual property rights. In this regard, the Government of India notified the Intellectual Property Rights (Imported Goods) Rules, 2007 in May 2007. The Rules, based on the model legislation by the World Customs Organization, seek to empower the Customs authorities to suspend the clearance of goods suspected to be infringing intellectual property in India. Further, they empower the Customs authorities to adjudicate on the issue of infringement and seize or dispose the goods on finding in favour of the right holder. The Rules, however, present a major source of concern for importers. They fail to strike a balance between the rights of the right holders and the safeguards provided to the importers or the obligations of the right holders. In view of this, they present immense potential for abuse and their implementation has had a chequered history. The controversy surrounding the dual–SIM patent, presently being argued before various Indian flora, highlights the issues raised by the implementation of these rules, and presents a case for their re-evaluation.

 

 

ENFORCEMENT LAWS IN INDIA :

The general laws in relation to Intellectual Property Enforcement in India are mainly the following:

• Code of Civil Procedure

• Indian Penal Code

• The Civil and Criminal Rules of Practice.

While Civil Procedure Code provides for the civil remedies and enforcement through civil courts, the Indian Penal Code provides for penal remedies. The rules of practice of the trail courts, High Courts and the Supreme Court of India set the finalities of the enforcement procedure. India follows common law tradition and judicial precedents do have binding force.

ENFORCEMENT MECHCANISM AVAILABLE UNDER THE INDIAN LAW:

 Civil remedies

Under civil remedy Protection for Design is there against infringement of Copyright in a design area

-an injunction,

-damages or

Compensation and delivery up of infringing articles. No Provision for criminal proceedings against piracy of designs. Unregistered design can be protected under Copyrights Act.

 

Civil remedies for enforcement of the Copyright including injunction, damages, account of profits, delivery of infringing marks and damages for conversion can be invoked by owner of copyright or in certain cases, publisher of the trademark label.

 

Suit for damages: Damages can be claimed – (1) as an amount of loss sustained by the holder of copyright by reason of infringement. (2) as an amount representing the profits made by the infringer and (3) as an amount representing the value of infringing copies.

 

Whenever a registered Tardemark is violated or infringed, to the detriment of its proprietor or user, the aggrieved person can make use of the remedies available in a civil court. The most common remedy for infringement of a registered trademark is to file a suit in a civil court, to restrain the defendant from using the registered trade mark of the plaintiffs. The issues arising in a passing off action are:-

• Whether the plaintiff has established a goodwill or reputation in connection with a business, profession, service or any other activity, among the general public or among a particular class of people prior to the first use of the defendant.

• Whether the defendant’s activities or proposed activities amount to a misrepresentation which is likely to injure the business or goodwill of the plaintiff and cause damage or likely to cause damage to his business or goodwill.

• Whether the defendant succeeds in one or more of the defenses set up by him.

For Patent civil remedy is not there.

 Criminal remedies

Protection for Patents: Criminal liability: penalties available under Section 118. Contravention of Secrecy provisions relating to certain inventions in cases relating to infringement of Patents. Failure to comply with Section 35, is punishable with imprisonment for a term which may extend to two years or with fine or both.

A suit for the infringement of a patent can be instituted only after the sealing of the patent. Damages caused of infringement during the period between the dates of advertisement of acceptance and the date of the sealing may be cleared in the suit. In an action for infringement of a patent a defendant may plead any of the following defenses:-

• Denial of infringement.

• Plaintiff is not entitled sue for infringement.

• License to use the invention expresses or implied.

• Estoppel

• Existence of an unlawful contract.

• Claims invalid on account of lack of novelty and non- obviousness.

• Innocent infringement in cases against a claim for damages or account of profit.

The procedure concerning infringement action must confine to the Civil Procedure Code, if the suit is filed before a District Court and if the matter is before the High Court the rule of practice of the court also shall apply. The main reason for a possible delay in getting orders in a patent infringement suit is the provision for preferring appeals from interim order of trial courts.

Protection for Trade Marks Act, 1999 provides for a comprehensive scheme whereby those persons who un-authorized deal with the trade marks can be punished for various offences. The offences includes:- Falsifying and falsely applying trade marks, Selling goods or providing services to which false trademark or false trade description is applied.

Removing piece goods etc. contrary to Sec. 81 which deals with stamping of piece goods, cotton yarn and threads. Falsely representing a trade mark as registered. Falsification of entries in the register; and Abetment in India, of acts done outside India etc.

The punishment of these offences includes a minimum imprisonment of 6 months and minimum of Rs.50, 000 which may extent to a maximum of 3 years and Rs.20, 000 respectively. Section 105 of the Act provides for enhance penalty on second or subsequent conviction.

Protection for Copyright :The owner of the copyright and also any person can initiate criminal proceedings, by filing a complaint before the competent First Class Magistrate within whose jurisdiction, the plaintiff resides or the infringement takes place or deemed to have taken place. The procedure prescribed under Criminal Procedure Code applies to the proceedings before the criminal court.

On conviction, the Criminal Court can sentence the accused to an imprisonment upto 3 years and a fine extending upto Rs.2 lakhs. Recent amendment have made the imposition of punishment to a minimum term of 6 months and a fine of Rs.50,000 mandatory unless for special reasons to be recorded if the magistrate awards lesser punishment than the minimum.

For Protection of Design act, no criminal remedies is there.

 

 Administrative remedies

For Protection of Trademark: The Act vests certain powers in the various administrative authorities to relief and remedies to the aggrieved persons. It is the Registrar who mostly exercises these powers under the guidance of the Central Government.

For Copyright Protection: An application can be made by the owner of the copyright in any work or by his duly authorized agent, to the Registrar of Copyright to ban the import of infringing copies of trade mark label which were earlier confiscated from infringer to the owner of the copyright.

And for Patent and Design Act, no administrative remedies is there.

 

 

 

BOARD ENFORCEMENT MECHANISM IN INDIA:

 

In India border measure are enforced by Customs Department. Department of Revenue/Central Board of Excise and custom has issued the notification/Rules/Circular for enforcement of IPR border measure:-

A. Customs Notification No. 49/2007- custom (NT) dated 8-5-2007.

B. Intellectual Property Right (Imported Goods) Enforcement, 2007 dated 8-5-2007

C. Custom Circular No. 41/2007 dated 29-10-2007.

Legal Provision:

• In section 2 (n) of custom Act, 1962 empowers the Central Government to prohibit importation and exportation of any goods for the protection of Patents Trademarks and Copyrights by Issuing of Notification.

• Section 11 (2) (u) of Customs Act, 1962 empowers the Central Government to prohibit importation and exportation of any goods for the protection of any other law for the time being force by issuing of notification.

 

 Customs Notification to Prohibit Import of infringing goods:

 

• Department of revenue issued Notification No 49/2007- Customs (N.T) dated 8-5-2007 which prohibits imports:-

 Of goods having a false trade mark and false trade description.

 Of goods made or produced beyond the limits if India and intended for sale and having in which copyright exists under the Designs Act.

 Of product made or protected beyond the limits of India and intended for sale of which patents is in for which patent is force under the Patents Act, 1970.

 Of the product obtained directly by the process beyond the limits of India and intended for sale for which patent is force under the patents Act, 1970.

 Of goods having false geographical indications.

 Of goods prohibited to be imported by issuance of order issued by Registrar of Copyrights under section 53 if Copyright Act, 1957.

 

 

 

 Intellectual Property Rights (Imported Goods) Enforcement Rules, 2007

 

• Import of infringing goods are prohibited under Notification No. 49/2007- Customs (NT) subjects to following conditions and procedures laid down in Intellectual Property Rights (Imported Goods) Enforcement Rules, 2007.

• Department of Revenue notifies the Intellectual Property Rights (Imported Goods) Enforcement Rules, 2007 on 8th of May 2007.

• The rules have been framed in the line of TRIPS and WCO (world Customs Organization) model.

 

Salient Features of the Rules:

 

• The rules inter alia provide for:-

• Filing of a notice by the right holder.

• Registration of said notice by the Customs.

• Time limit for right holder to join proceedings.

• Single point for registration of the notice filed by the right holder.

• Fees of Rs. 2000/- for every notice.

• Adequate protection to the rightful importer.

• Adequate protection to the Customs for bonafide act.

• Suo-moto action by the Customs in specific circumstances

• Disposal of the confiscated goods.

• No action against goods of non commercial nature contained in personal baggage or sent in small consignments intended for personal use of the importer.

 

 

 

 

 

INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHT WITH THE CUSTOMS ACT, 1962 AND PROCEDURE UNDER INTELLECTUAL PROPERTY RIGHTS (IMPORTED GOODS) ENFORCEMENT RULE, 2007

A.Defination:-

1. Categories of Intellectual Property within the Scope of the Rules:

The Rule 2 of the rules provides definitions. It is borrowed from the model legislation by the Geneva based World Customs Organization, Rule 2(b) and 2(c), defining the term “intellectual property” and “intellectual property law” respectively, indicate that the Rules are applicable to those imported goods suspected to be infringing rights either in a trademark, copyright, geographical indication or patent. It bears noting that the Article 51 of the TRIPS mandates to introduce provisions only with respect to counterfeit trademark or pirated copyright goods. India is not obligated to introduce border measures with respect to other categories of intellectual property such as patents or geographical indications. The extension of border measures to other categories of intellectual property, especially to patents becomes significant in view of the institutional incompetence of the customs authorities to deal with complex matters relating to patent law.

 

2. Institutional incompetence of Customs Administration to Deal with Patent Related Issues:

The TRIPS does not require members to introduce provisions with respect to all categories of intellectual property and the mandate to introduce border measures under TRIPS extends only to copyright and trademark related matters. In relation to patents, the most relevant argument against introduction of border measures is that the patent infringements are difficult to assess at first sight. This difficulty arises from the technical complexity of products to which patents are attached and the complex nature of patent law itself.

 

The field of intellectual property law is a specialized field, requiring both legal and technical expertise. The Courts have been divested of their authority to hear such matters which are now heard by a specialized Intellectual Property Appellate Board. The High Court of Delhi with respect to the power of the Drug Controller General of India to decide on matters relating to patent infringement, wherein the Court opined that the Drug Controller lacks the technical expertise to deal with matters relating to patentability and patent infringement.

 

Patent law requires the understanding of complex technology for the purposes of claim construction, and customs administration lacks the infrastructure to undertake such a process. It is, therefore, suggested that the Customs administration must establish a specialized cell for intellectual property matters comprising of specialized members possessing both technical and legal expertise in such matters.

 

Definition of Right Holder:

 

Rule 2 (d) defines right holders to mean a natural person or a legal entity, which according to the laws in force is to be regarded as the owner of protected intellectual property right, its successors in title, or its duly authorized exclusive licensee as well as an individual, a corporation or an association authorized by any of the aforesaid persons to protect its rights. This provision indicates that the owners of intellectual property rights as well as their assignees and licensees are entitled to seek protection under the Rules.

 

3. Definition of “Goods Infringing Intellectual Property” – A Conundrum

 

Sub-Rule (a) of definitional Rule defines the term “goods infringing intellectual property” to mean “goods which are made, reproduced, put into circulation or otherwise used in breach of the intellectual property laws in India or outside India and without the consent of the right holder or a person duly authorized to do so by the right holder”. On reading of Rule, the language of confusing, two interpretations may arise The first interpretation, which the author proposes, is that the term “goods infringing intellectual property” means the goods which are made, reproduced, put into circulation or otherwise used in India or outside in breach of intellectual property laws. (the term intellectual property laws shall be interpreted as per Rule 2(c), and shall mean the Copyright Act, 1957, the Trade Marks Act, 1999, the Patents Act, 1970, the Designs Act, 2000 or the Geographical Indications of Goods (Registration and Protection) Act, 1999).

 

Interpretation, the term “in India or outside India” qualifies the place where the infringing act takes place. The question whether goods made, reproduced, put into circulation or otherwise used outside India can breach the intellectual property laws above mentioned? The simple answer is no. The Patent Act, 1970 under S. 48 provides that the patentee has the exclusive rights mentioned therein in India. Similarly, Section 13(1)28 of the Copyright Act, 1957 provides that copyright shall subsist throughout the territory of India. Further, trademark law in India is territorial in nature and requires that the infringing activity must take place within the territorial limits of registration, i.e., within India. The Model Law, under Article 1, includes a that clause “if such making, reproduction, use or putting into circulation of the goods took place outside the country the goods are deemed to be infringing if the acts would have constituted an infringement in the country had they been undertaken in the country”.

 

The alternative interpretation of the Rule 2(a) involves reading the terms “in India or outside India” as qualifying the term “intellectual property law”, rather than defining the place where the infringing acts occur whether the acts are infringing as per the Indian intellectual property laws or the intellectual property laws outside India, the goods shall be considered as goods infringing intellectual property. It is conclude that those goods which are made, reproduced, put into circulation or otherwise used in breach of intellectual property laws of countries other than India shall be considered to be “goods infringing intellectual property”.

 

The Rules, under such an interpretation, in effect allow the right holder to rely on rights which are available under intellectual property laws outside India, even where such rights are not available under the Indian laws. Such an interpretation would render the provision arbitrary and in discord (without a “reasonable nexus”) with the object of the legislation, thereby making them susceptible to being struck down as unconstitutional.

 

B. Procedure for Registration:

 

The Rules provide an elaborate procedure for the enforcement of intellectual property rights of the right holders by customs authorities. The Rules envisage the provision of notice by the right holder to the Commissioner of Customs (or any officer authorized on his behalf) requesting for the suspension of clearance of goods suspected to be infringing intellectual property.

 

The Right holder is required to give the notice in a specified format (provided in the Annexure) along with the payment of Rs. 2000 as application fee. Whether his notice has been registered or rejected within a period of 30 days.41 The registration of notice is subject to two conditions, namely: the execution of a bond by the right holder with the Commissioner of Customs undertaking to protect the importer, consignee and the owner of the goods and the competent authorities against all liabilities and to bear the costs towards destruction, demurrage and detention charges incurred till the time of destruction or disposal. Further, the right holder is required to execute an indemnity bond with the Commissioner of Customs indemnifying the customs authorities against all liabilities and expenses on account of suspension of the release of allegedly infringing goods.

 

On the registration of the notice, the Commissioner is required to communicate to the right holder the validity period of the registration during which the assistance by the customs authority shall be rendered, with the minimum period being one year. Rule 4(3) of the Rules provides that all customs offices shall render assistance to the right holder.

 

C. Scope of the Power of the Customs to Detain and Seize Goods Under the Rules:

 

1. Rules 6 and 7: Enabling Provisions-

 

Rules 6 and 7 are the enabling provisions which empower the customs administration to suspend the clearance of goods infringing intellectual property rights. Rule 6 provides that after the grant of the registration of the notice the import of allegedly infringing goods into India shall be deemed as prohibited within the meaning of Section 11 of the Customs Act, 1962. Rule 7(1)(a) of the Rules empowers the customs authority to suspend the clearance of goods on the basis of the notice given by the right holder to suspend the clearance of goods if he has reason to believe that the imported goods are suspected to be goods infringing intellectual property rights. The rules further provide for communication of the order of suspension of clearance to both the importer and the right holder, stating the reasons for such suspension. From the date of such communication, the right holder is required to join the proceedings before the customs administration within a period of ten working days (extendable to twenty working days) failing which the goods shall be released provided that all other conditions of import of such goods have been complied with. Rule 7(1) (b) empowers the customs authority to suspend the clearance of goods suo motu if it has prima facie evidence or has reasonable grounds to believe that the imported goods are goods infringing intellectual property.

 

In case of suo motu action, Rule 7(4) of the Rules requires the right holders to give notice under Rule 3 and to fulfil obligations (such as execution of bond under Rule 5) within a period of 5 days from the date of suspension of clearance, failing which the goods shall be released by the customs administration. If the right holder complies with the above mentioned provisions (both in case of prior notice or for suo motu action), the Deputy Commissioner of Customs or the Assistant Commissioner of Customs is empowered to seize the goods under Section 110 of the Customs Act, 1962 if he has reason to believe that the goods are“goods infringing intellectual property rights” and are liable for confiscation under Section 111(d) of the Customs Act, 1962.

 

2. Rule 7 and Audi Alteram Partem:

 

Rule 7 of the Rules is the enabling provision empowering the Customs administration to suspend the clearance of goods. The order for suspension of clearance of goods under Rule 7(1) is made on the basis of the notice given by the right holder, and this forms the basis for the suspension of clearance. Therefore, the right holder is entitled to make a prima facie case for infringement by virtue of the notice. However, the importer is not provided an opportunity to be heard and he is entitled to seek the clearance of the goods only after he receives the communication from the customs authority under Rule 7(2).

The very nature of the order is such that the rule of audi alteram partem must be excluded. That being said, it is imperative that the post-decisional hearing shall take place “as soon as” the order for suspension of clearance is made. The requirement under the Rules is that the order of suspension must be communicated to the right holder “immediately”. Therefore, the importer’s right may be prejudiced for an unreasonable period of time with his goods being detained at the ports without a decision being reached by the customs authority. Once the right holder has joined the proceedings, the proceedings may prolong for an unreasonable period of time, as is often the case in India given the administrative delays.

 

The requirements laid down in the case of Maneka Gandhi v. Union of India, is that in cases of post decisional hearing, a fair opportunity of being heard must be “given immediately” after the impugned order. If the post-decisional hearing is commenced immediately but is unreasonably or unduly delayed, the purpose of giving the post-decisional hearing “immediately” would be defeated. Such a reading shall enable importers to seek an appropriate writ in cases where there is an unreasonable delay in the reaching its conclusion, with the reasonableness being tested on a case by case basis.

 

3. No Need for prima facie Evidence: Undue Burden on Customs Administration:

 

The format of notice provided in the Annexure indicates that the right holder is not required to provide evidence to establish that the goods are infringing in cases where he does not seek to prevent the import of a specific consignment. The right holder is required to give prima facie proof of infringement only where the infringement by goods in a specific consignment is alleged at the time when the notice for registration is given. A situation where at the time when the right holder gives the notice of registration there is no specific consignment which infringes the rights of the applicant. The right holder in such circumstances shall be granted the registration of the notice without submitting any proof concerning infringement regarding a specific consignment. On the basis of this notice, the customs administration is required to determine the scope of his intellectual property rights and detain goods which they suspect to be infringing.

 

Under the TRIPS Agreement, the right holder making an application for suspension of clearance of the goods to the Customs administration is required to provide “adequate evidence” to satisfy the customs administration that there is prima facie an infringement of the intellectual property right.

 

D. Right to Examination of Goods and Supply of Information:

 

Rules 8, 9 and 10 contain provisions for examination of goods by the right holder, supply of information to the right holder and supply of information to the importer, respectively. Rule 8 empowers the Commissioner to allow the right holder/importer to examine the goods, the clearance of which has been suspended, and to provide representative samples for examination, testing and analysis to assist in determining whether the goods are pirated, counterfeit or otherwise infringe an intellectual property right. Rule 9 enables the right holder to seek information such as the name and address of the importer and such additional relevant information regarding the consignment which has been suspended. Similarly, Rule 10 enables the importer to seek information relating to the right holder. However, these provisions are to be applied without prejudice to the protection of confidential information, thereby ensuring that sensitive information regarding the importer or the right holder is not disclosed.

 

E. Disposal of Infringing Goods:

 

Rule 11 provides for the disposal of infringing goods. This rule is applicable where upon determination by the Deputy Commissioner of Customs/Assistant Commissioner of Customs, it is found that the goods detained or seized have infringed intellectual property rights, and have been confiscated under Section 111(d) of the Customs Act, 1962 and no legal proceedings are pending in relation to such determination. The said authority in such cases can destroy the goods under official supervision or dispose them outside the normal channels of commerce after obtaining ‘no objection’ or concurrence of the right holder. Rule 11 raises major concerns for the importer since the disposal of goods by the Customs authority amounts to a final determination of the rights, and the only remedy is to seek monetary compensation from the right holder.

 

 Customs Circular 41/2007:

 

Central Board of Excise and Customs has issued a circular No. 41/2007 dated 29-10-2007 which apart from explaining various provisions of Intellectual Property Rights (Imported Goods) Enforcement Rules, 2007, in border security measure, place detailed procedure for electronic registration of the notice by the Right Holders. Salient features of the Circular 41/2007:-

• On- line recordation as a trade facilitation measure.

• 110% of value of goods Bond amount and 25% of bond value as BG- uniformity.

• Recordation valid for 5 years (extendable thereafter on payment of fees).

 

 

ISSUES RAISED BY THE IMPLEMENTATION OF THE RULES: A CASE STUDY:-

A. The Ram Kumar Patent Saga

 

This litigation involves a patent granted to Mr. Soma Sundaram Ram Kumar on a “Mobile telephone with a plurality of SIM cards allocated to different communication networks”. Mr. Ram Kumar sought to enforce the patent rights against a number of multinational and national importers including Hansum India, Samsung and Micromax.

 

Mr. Ram Kumar filed an application in the Chennai Patent office on March 4, 2002 containing 4 claims and 12 drawings and was allotted Patent Application No. 161/MAS/2002 which was granted in 2008. Mr. Ram Kumar, then filed an application under Rule 3 of the Intellectual Property Rights Intellectual Property Rights (Imported Goods) Enforcement Rules, 2007. Mr. Ram Kumar filed an application on December 8, 2008 with the Officer of Commissioner of Customs under the Customs Notification No. 47/2000 read with Circular No. 41/2007 Customs Circular dated 29.10.2007 called the Instructions for Implementation of Intellectual Property (Imported Goods) Enforcement Rules, 2007.

 

The first course of litigation before the Indian Courts was with respect to the constitutionality of the Rules. In this petition, Samsung raised the issue of lack of expertise of the Customs authorities. However, the petition had to be subsequently withdrawn for the lack of territorial jurisdiction.

 

The second course of litigation was before the Madras High Court, wherein Mr. Ram Kumar sought a restraining order against manufacturers such as Samsung, Mirco Electronics and Spice Mobile, restraining them from manufacturing and selling multiple SIM holding mobile phones.

 

The third course of litigation was before the customs authorities and highlights the concerns on behalf of the importers. The claims related to dual SIM which allowed simultaneous communication multiple headsets

 

The Chennai customs authority upheld the contentions of Hansum India Ltd. Holding that the claim 1 of Mr. Ram Kumar patent had limited scope. The claims, therefore, were held not to be infringed by the cell phones manufactured by Hansum since these cell phones used a single headphone/earphone jack. Similarly, the New Delhi customs authority, in an order dated 8th June, 2009, by J.P. Kundu, the Assistant Commissioner of Customs, found that claim made by Mr. Ram Kumar was vexatious and the impugned goods were covered by the prior art declared by him.

 

Against the orders of customs authorities, Mr. Ram Kumar filed writ petition in the Madras High Court, dismissing the petition, held that the proper forum for the redressal was the Customs Appellate Tribunal, an authority envisaged as the appellate authority under the Customs Act, 1962. Therefore, at present, the orders of the Customs administration allowing the clearance of the goods from the Mumbai, Chennai and Delhi ports stand affirmed and, the stand of the importers has been upheld.

The case involving parallel imports and trademarks in India, Cisco Techonology Vs Shrikhant the plaintiff’s employed sec. 29(6) (c) of custom act read with sec 140 defense and were successful in getting an exparte order directing the customs authorities to notify all ports to bar imports of defendant goods and also appointing a local commissioner to seize all goods bearing the mark in issue and inventory the same.

In the judgement of the Delhi High Court in Electronics Company Ltd. & Anr. vs G.Choudlhary & Anr defendants, who were the parallel importers were held liable for infringement of Trademark. The registered owner of the Trademark “Samsung” filed a suit against the defendants for importing from China and selling in cartridges and toners branded “Samsung” manufactured by the plaintiff itself in China. The plaintiff argued that although the products are genuine, they were not meant for Indian markets. The reasons by the plaintiff included that the descriptions that accompanied the products were in Chinese, there was no warranty offered and that the use of these products were likely to constitute a breach of warranty of other legally purchased machinery.

Bangalore Aug 10, 2003: Banashankari police arrested three software engineers for illegally copying software from a company they were working for. The accused enginners, who were working with the Ishoni Networks India Private Limited, had started a new company called Ample Wave Communication Network in Koramangala. They had illegally copied code of the company’s software and were using at their company, police said Ishoni Director Antonio Mario Alvares had lodged the complaint with Banashankari police. Police have seized four computers, four CPUs, four keyboards, one server and one laptop from the accused.

New Delhi Aug 28, 2002: Central Bureau of Investigation officials in New Delhi nabbed Shekhar Verma, a former employee of Mumbai-based Geometric Software Solutions Company and a computer engineer from the Indian Institute of Technology, Kharagpur. It turned out that Verma was accused of stealing $60 million worth of source code of a software product of Geometric Software’s US-based client, Solid Works, and trying to sell them to other companies for a fortune. The American firm has the exclusive rights over the software.

 

 

 

 

 

 

Summary of Indian Government Initiatives to Protect IPR :-

The Indian government has initiated various steps towards Intellectual Properties Rights Protection. Indian enforcement agencies are working effectively and there is a decline in the levels of piracy in India. In addition to intensifying raids against copyright violators, the Government has taken a number of measures to strengthen the enforcement of copyright law. A summary of these measures is given below:-

• The Government has brought out A Handbook of Copyright Law to create awareness of copyright laws amongst the stakeholders, enforcement agencies, professional users like the scientific and academic communities and members of the public. Copies of the Handbook have been circulated free-of-cost to the state and central government officials.

• National Police Academy, Hyderabad and National Academy of Customs, Excise and Narcotics conducted several training programs on copyright laws for the police and customs officers. Modules on copyright infringement have been included in their regular training programs.

• The Department of Education, Ministry of Human Resource Development, Government of India has initiated several measures in the past for strengthening the enforcement of copyrights that include constitution of a Copyright Enforcement Advisory Council (CEAC), creation of separate cells in state police headquarters, encouraging setting up of collective administration societies and organization of seminars.

• The Government also initiates a number of seminars/workshops on copyright issues. The participants in these seminars include enforcement personnel as well as representatives of industry organizations.

As a consequence of the number of measures initiated by the government, there has been more activity in the enforcement of copyright laws in the country. Over the last few years, the number of cases registered has gone up consistently.

 

 

Conclusion:-

As a laws concerning intellectual property are already in place, the need of the hour is a specialized and tactful judiciary, which can deal with intellectual property rights issues with aptness keeping the national interest in mind and ensure effectiveness of enforcement system. Rights holder should be encouraged to participate in enforcement actions. The quantum of damages awarded by the court should be such that they not only compensate the right holder for the losses suffered, but should also act as a deterrent for infringers form engaging in illegal activities. Infringers can also be directed to take corrective advertising to indemnify the loss caused to the good will of the right holder.

 

 

 

 

 

 

 

 

 

 

 

 

TORTIOUS LIABILITY OF ADMINISTRATION IN MODERN TIMES

Public AccountabilityVivek Kerketta

Introduction

Wrongful, conduct of such character as to subject the actor to civil liability under tort law.

 

In order to establish that a particular act was tortious, a plaintiff must prove that an actionable wrong existed and that damages ensued from that wrong. The state is a legal entity and not a living entity; it has to act through human agency through its servants. The liability of the state for the tortious acts of its servant that has to be considered. In other words, it refers to when the state can be held vicarious liable for the wrongs committed by its servants.

 

The Vicarious Liability refers to a situation where one person is held liable for act or omission of other person. Winfield explains the doctrine of vicarious liability thus. The expression ‘vicarious liability’ signifies the liability which A may incur to C for damages caused to C by the negligence or the tort of B. It is not necessary that A shall not have participated in any way in the commission of the tort nor that duty owed in law by A to C shall have been broken. The master may be held liable for the torts committed by his servant in the course of employment.

 

The doctrine of vicarious liability is base on two maxims:

(i) Respondent superior (let the principal be liable) and

(ii) Qui facit per alium facit per se (he who does an act through another does it himself).

As early as in 1839 , Lord Brougham observed: “The reason that I am liable is this, by employing him I set the whole thing in motion and what he does, being done before my benefit and under my direction, I am responsible for the consequences of doing it.”

 

The Doctrine of Vicarious Liability is based on ‘social convenience and rough justice’.

English law: – in England, under common law, absolute immunity of the Crown was accepted could not be sued in tort for wrongs committed by its servants in their employment. The rule was based upon the well known maxim “the King can do no wrong”. In 1863, in Tobin v. R. the court observed “if the Crown were liable in tort, the principle (the King can do no wrong) would have seemed meaningless”. But with the increase of governmental functions, the immunity afforded to the Crown in tortuous liability proved to be incompatible with the demands of justice.

In Adams v. Naylor the Dicey gave an absurd example. “If the Queen were herself to shoot the P.M through the head, no court in England could take cognizance of act”. The meaning of maxim would mean “king has no legal power to do wrongs.” But the English Law never succeeded in distinguishing between the King’s two capacities- personal political. The time had come to abolish the general immunity of the crown in tort and in 1947 the Crown Proceeding Act was enacted. This Act placed the Government in the same position as a private individual.

Indian Law:

a. General

So far as Indian law is concerned, the maxim ‘the king can do no wrong’ was never fully accepted. Absolute immunity of the Government was not recognised in the Indian legal system prior to the commencement of Constitution and in a number of cases the Government was held liable for tortuous acts of its servants.

 

b. Constitutional Provision

Under Article 294 (4) of the constitution, the liability of Union Government or a state Government may arise ‘out of any contract or otherwise. The word otherwise suggests that the said liability may arise in respects of tortuous acts also. Under article 300 (1), the extent of such liability is fixed. It provides that the liability of the Union of India or State Government will be same as that of Dominion of India and the Provision before the commencement of the Constitution.

c. Sovereign and Non-sovereign functions

(a) Before commencement of Constitution

The English law with regard to immunity of the Government for tortuous acts of its servants is partly accepted in India. The High Court observed: as a general rule this is true, for it is an attribute of sovereignty and universal law that a state cannot be used in its own courts without its consent.’ Thus a distinction is sought to be made between ‘sovereign functions’ and ‘non-sovereign functions’ of the state. The State is not liable in tort.

 

d. After commencement of Constitution

In state of Rajasthan v. Vidhyawati , a jeep was owned by the Rajasthan for the official use of the collector of a district. The jeep driver bringing back the workshop after repairs. By negligent driving of jeep a pedestrian was knocked down. He died and his wife sued the driver and the state for damages. A constitution Bench of Supreme Court held the State vicarious liable for the rash and negligent act of the driver.

The court held that the rule of immunity based on the English law had no validity in India. After the establishment of the Republican form of Government under the Constitution there was no justification in principle or in public interests that the state should not held liable for vicariously for the tortuous acts of its servants.

In Kasturi lal v. State of U.P. a certainly of gold and silver was attached by police authorities from one R on suspicion that was stolen property. It was kept in Government malkhana which was in the custody of Head Constable. The Head constable misappropriated the court. A suit for damages was filed by R against the state for the loss caused to him by the negligence of police authorities of the state. The Supreme Court held that the state was not liable police authorities were exercising ‘sovereign functions’. The Constitution Bench of court, Gajendragadkar, C.J observed:

“If a tortuous act is committed by the public servant and it gives rise to claim for damages, the question to ask is: Was the tortuous act committed by the Public servant in discharge of stuatory functions or the delegation of sovereign powers of the state to such public servant? If the answer is in the affirmative, the action for damages for loss caused by such tortuous act will not lie. On the other hand, if tortuous act has been committed by a public servant in discharging of duties assigned to him not by virtue of the delegation of any sovereign power an action for damages would lie.”

Distinguishing Vidyawati, the court held that: ‘the employment of a driver to drive the jeep car for the use of a civil servant is itself an activity which is not connected in any manner with the sovereign power of state at all. It appears that the Supreme Court itself was satisfied that kasturi lal did not lay down correct proposition of law and in these circumstances, in subsequent case either the court did not refer Kasturi lal at all or describing it as ‘not relevant’.

The Court also stated that distinction between sovereign and non-sovereign power no more exists. It all depends on the nature of the power and manner of its exercise. No civilized system can permit an executive to play with the people of its country and claim that it is entitled to act in any manner as it is sovereign. The functions state as “sovereign and non-sovereign” or ‘governmental and non-governmental’ is not sound. It is contrary to modern jurisprudence thinking. Since the doctrine has become outdated and sovereignty now vests in the people, the state cannot claim any immunity and if a suit is maintainable against the officer personally, there is no reason to hold that it would not be maintainable against the state.

 

 

Whether State Is Bound By Statute:

General:

State performs not only the ‘law and order’ functions, but as a ‘Welfare State’, it performs many non-sovereign and commercial activities. The important question therefore arises, whether the state is subject to same rights and liabilities which the statute has imposed on other individuals. In others words whether the state is bound by a statute and if it is, to what extent the provision of statute can be enforced against the state.

English law:

The general principles of common law, ‘no statute binds the Crown unless the Crown was expressly named. In England the Crown enjoys the common law privilege and it is not bound by a statute, unless ‘a clear intention from statute itself or from the express terms of the Crown Proceedings Act, 1947. The maxim ‘King can do no wrong’. In theory, it is inconvincible that the statute made by the crown for its subjects could bind the Crown itself.

Indian law:

The principle of common law was accepted in India and applied in some cases. In Provinces of Bombay v. Municipal Corp. of the city Bombay is the leading case before independence. The Corporation of Bombay wanted to lay water mains through land which belonged to the Government. The land was acquired by the Crown under the provision of Municipal Act. The municipality had power ‘to carry water mains within or without the city.’ The question was whether the Crown was bound by the statute held that the Government was not bound by the statute.

 

In Superintendent and Remembrance of Legal affairs W.B v. Corp. Of Calcutta (Corporation of Calcutta II) , the state was carrying on the trade of a daily market without obtaining a license as required by the relevant statute. The Corporation filed a complaint against the state. The Supreme Court was called to decide the correctness or aforesaid decision in Corporation of Calcutta I. By a majority of 8:1, the decision in Corporation of Calcutta I was overruled and it was held that the state was bound by the Statute.

Article 300 of India Constitution :

(1) The Government of India may sue or be sued by the name of the Union of India and the Government of a State may sue or be sued by the name of the State any may, subject to any provision which may be made by Act of Parliament or of the Legislature of such State enacted by virtue of powers conferred by this Constitution, sue or be sued in relation to their respective affairs in the like cases as the Dominion of India and the corresponding provinces or the corresponding Indian States might have sued or been sued if this Constitution had not been enacted.

 

(2) If at the commencement of this Constitution any legal proceedings are pending to which the Dominion of India is party, the Union of India shall be deemed to be substitute for the Dominion in those proceedings.

Any legal proceedings are pending to which a Province or an Indian State is a party, the corresponding State shall be deemed to be substituted for the province or the Indian State in those proceedings.

An overview of Article 300 provides that first part of the Article relates to the way in which suits and proceedings by or against Government may be instituted. It enacts that a State may sue and be sued by the name of the Union of India a State may sue and be sued by the name of the State.

The Second part provides, inter alia, that the Union of India or a State may sue or be sued if relation to its affairs in cases on the same line as that of Dominion of India or a corresponding Indian State as the case may be, might have sued or been sued of the Constitution had not been enacted. The Third part provides that it would be competent to the Parliament or the legislature of State to make appropriate provisions in regard to the topic covered by Article 300(1).

The first case, which seriously discussed the question of Sovereign Immunity, is the Pand O Navigation Company V. Secretary of State for India , in this case a piece of iron funnel carried by some workmen for conducting repairs of Government steamer hit the plaintiff horse-driven carriage and got injured. The Plaintiffs sued for damage. The plaintiff filed a suit against the Secretary of State for India- in council for the negligence of the servants employed by the Government of India. The Supreme Court delivered a very learned judgment through the Chief Justice. The Supreme Court at Calcutta, CJ held that “the Government will be liable for the actions done by its servants while doing non-sovereign functions but it won’t be liable for injuries caused while pursuing sovereign functions.

Similarly in Nobin Chunder Dey V. Secretary of State , the Calcutta High Court gave full effect to the remarks in rejecting the plaintiff’s plea for damage against wrongful refusal to him of a license to sell certain excisable liquors and drugs resulting in the closure of his business on the ground that grant or refusal of a license was a sovereign function lying beyond the reach of the tortuous liability of the State. Since then, the distinction between the sovereign and non-sovereign functions of the State has been the basis of a number of judicial pronouncements.

On the other hand, in Secretary of State V. Hari Bhanji, the court has denied any distinction between sovereign and non-sovereign functions and held that where an act is done under the sanction of municipal law and in the exercise of powers conferred by that law, the fact that it is done in the exercise of sovereign function and is not an act which could possibly be done by a private individual does not oust its justifiability. In this state of affairs, the Rajasthan High Court after holding the State of Rajasthan liable in tort certified the case fit to be taken to the Supreme Court in State of Rajasthan V. Ms. Vidyawati. In this case, a Government Jeep knocked down a pedestrian who died in consequence of accident. Rejecting the appeal by the State of Rajasthan on the ground of Sovereign Immunity, the Court ruled that the State is liable for the tort or wrongs committed by its officials. In this case distinction between sovereign and non-sovereign functions was disregarded, but the court observed that the State would not be responsible for the ‘Act of State’ under Article 300 of the Constitution. The Supreme Court, in this case, added that in modern times, the State has welfare and socialistic functions and the defence of State immunity based on the old feudalistic notions of justice cannot be sustained.

Again, in Kasturi Lal V. State of U.P, the Apex court has adopted a pro-people approach. In this case the Police seized some suspected stolen gold from Plaintiff. Later, it was misappropriated by Head Constable of the Police Station who reportedly fled to Pakistan with the Gold. The Supreme Court held that the State is not liable as impugned act is a sovereign activity. Thus, the court not only reversed what appeared to be the legal position after Vidyawati case but also reinforced an additional qualification to the State liability by referring to the statutory powers; in a way holding that State is not liable for any torts committed by its servants in the exercise of statutory powers.

Doctrine of Public Accountability:

The concept of public accountability is a matter of vital public concern. All the three organs of the government- legislature, executive and judiciary are subject to public accountability.

a. Doctrine Explained:

It is settled law that all discretionary powers must be exercised reasonably and in larger public interest. In Henley v. Lyme Corporation Best C.J stated: – “Now I take it to be perfectly clear, that if a public officer, abuses his office, either by an act of omission or commission and the consequence of that is an injury to an individual an action may be maintained against such public officer.”

 

In various cases, the Supreme Court has applied the above principle by granting appropriate relief to aggrieved parties or by directing the defaulter to pay damages, compensation or costs to the person who has suffered. Very recently in Arvind datttaraya v. State of Maharashtra, the Supreme Court set aside order of transfer of a public officer observing that the action was not taken in public interests but was a case of victimized of an honest officer. ‘it is most unfortunate that the Government demoralize the officers who discharge their honestly and diligently and brings the persons indulging in black marketing and contra banding liquor.”

 

b. Personal liability: -A breach of duty gives rise in public law to liability which is known as “misfeasance in public office”. Exercise of power by minister and public officers must be for public goods and to achieve welfare of public at large. Wherever there is abuse of power by an individual, he can be held liable.

In Common Cause, a Registred Society v. Union of India the petroleum Minister made allotment of petrol pumps arbitrarily in favour of his relatives and friends. Quashing the action, the Supreme Court directed the Minister to fifty lakh rupees as exemplary damages to public exchequer and fifty thousand rupees towards costs.

In is submitted that in Lucknow development Authority v. M.K Gupta, the Supreme Court rightly stated: – When the court directs the payment of damages or compensation against the state the ultimate sufferer is the common man. It is the ‘tax payers’ money which is paid for inaction of those who are entrusted under the act to discharge those who are under the act to discharge their duties in accordance with law. It is therefore necessary that the Commission when it is satisfied that a complaint is entitled to compensation mental agony or oppression, which finding should be recorded carefully on material and convincing circumstance and not lightly, it further direct the department concerned to pay the amount to the complaint from the public fund immediately. But at the same time, personal liability should be imposed on erring officers only after giving notice and affording reasonable opportunity of hearing.

C. Judicial accountability:

The doctrine of public accountability applies to judiciary as well. An essential requirement of justice is that justice is that it should be dispensed as quickly as possible. It has been rightly said: “Justice delayed is justice is justice denied.” Delay in disposal of cases can be recommended. Whereas comments and criticism of judicial functioning on matters of principles, healthy aids for interpretation and improvement, the functioning of the court in relation to a particular proceeding is not permissible.

Conclusion: All actions of state and its instrumentalities must be toward the objectives set out in the constitution. Every step of government should be in the direction of democratic traditions, social and economic development and public welfare. The constitutional court exercises power of judicial review with constraint to ensure that the authorities on whom such power is entrusted under the rule of law exercise is honestly, objectively and for the purpose for which it is intended to be exercised.

 

Doctrine of Estoppels:

a. Meaning:-

The doctrine of promissory or equitable estoppels is well settled in administrative law. Wade states that: “The basic principle of estoppels is that a person who by some statement or representation of facts causes another to act his detriment in reliance on the earth of it is not allowed to deny, even though it is wrong. “Justices here prevails over truth.” Garner states that: “A person may be precluded (estoppel) in legal proceedings from denying the existence of some state of facts the existence of which he has previously asserted, intending the other party to the proceedings to rely on the assertion.

b. Nature and Scope:-

Estoppel is often described a rule of evidence, but more correctly it is a principle of law. Though commonly named as promissory estoppels, it is neither in the realm of contract nor in the realm of estoppel. The basis of this doctrine is equity. It is invoked and applied to aid the law in administration of justice. But for it great many injustices may have been perpetrated.

c. Illustration:-

The above principle is embodied in section 115 of the Indian Evidence Act, 1872. It provides: “when one person by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.” The illustration section read as under:

 

“A, intentionally and falsely leads B to believe that certain lands belong to A, and thereby induces B to buy and pay for it. The land afterwards becomes the property of A, and A seeks to set aside the sale on the ground that at time of sale he had no title. He must not allow prove his want of his title.”

d. Leading Cases

In Robertson v. Minister of Pension, R, army officer claimed a disablement on account of war injury. The War Officer accepted his disability as attributable to military service. Relying on this assurance R did not take any steps which otherwise he would have taken to support his claim. The Ministry refused to grant the pension. The court held the Ministry liable.

 

In Union of India v. Anglo Afghan Agencies, the historic case, ‘Export Promotion Scheme was published by7 the Textile Commissioner. It was provided in the said scheme that the exporters will be entitled to import raw material up to 100 percent of the value of goods the exports. Relying on this representation, the petitioner exported goods rupees 5 lakhs. The Textile commissioner did not grant the import certificate for the full amount of goods exported. No opportunity of being heard was given to the petitioner. The Supreme Court held that the Government was bound to carry out the obligations undertaken in the Scheme. Even though the scheme was merely executive in nature and even though the scheme was executive in nature and even though the promise was not recorded in the form of formal contract a required by the article 299(1) of the Constitution, still it was open to a party who had acted on a representation made by the Government to claim that the Government was bound to carry out the promise made by it.

 

In Motilal Padampat Sugar Mills v. State of U.P in that case, the Government of Uttar Pradesh announced that new industrial units in the State would be granted exemption from payment of sales tax for period of three years. The petitioner approached to the High Court but failed. Applying the Supreme Court said, Bhagwati, J sated:-

“It is elementary that in a republic governed by the rule of law, no one high or low, is above law. Every one is the subjects to the law as fully and completely any other or the Government is no exception. It indeed the pride of constitutional democracy and rule of law is concerned: the former is equally bound as the latter. It is indeed difficult to see on what principle can a Government, committed to the rule of law claim immunity from the doctrine of promissory estoppel.”

 

In Jit Ram v. State of Haryana the Municipal Committee of Bahadurgarh had established a mandi at fateh. It was resolved by the municipality in 1916 that purchase of the plot in the mandi. The municipality decided to levy octori duty and the said action challenged inter alia on the ground of estoppel. Virtually dissenting with Motilal Sugar Mills, the court rejected the contention holding that the doctrine of estoppel could not be invoked.

Regarding Jit Ram, Bhagwati, and C.J. rightly observed: “we find it difficult to understand how a Bench of two Judges in Jit Ram Case could possibly overturn or disagree with what was said by another bench of two judges in Motilal Sugar Mills case. If two judges in Jit Ram case found themselves unable to agree with the law laid down in Motilal Sugar case, they could have referred Jit Ram case to a larger Bench, but we do not think it was right on their part to express their disagreement with enunciation of the law by a coordinate Bench of the same court in Motilal Sugar Mills.”

The court further observed that the law laid down in Motilal Sugar Mills was correct and did not approve the observations of Jit Ram to the extent that they were contrary to earlier decision.

e. Estoppel against statute:-

The doctrine cannot be used against or in favour of the administration so as to give de facto validity to ultra vires administrative acts.

In Howell v. Falmouth Boat Construction Co. the relevant statute required a license to do ship repair work. An assurance was given by the designated official that no such license was necessary. The plaintiff sued for payment of work done by him. It was argued that the workdays illegal as no written license was obtained by him. The Court of Appeal decided in favour of the plaintiff on the basis of the doctrine estoppels. Reversing the judgment of Lord Denning and dismissing the claim of the plaintiff, the House of Lords pronounced:

“It is certain that neither a Minister nor any subordinate officer of the Crown can by any conduct or representation bar the Crown from enforcing a statutory prohibition or from prosecuting for its breach.”

In Exercise Commissioner v. Ram kumar, the Supreme Court held that held sale of country liquor which had been exempted from sales tax at the time auction license could not operate as estoppels against the Government. The Supreme Court observed:

“It is now well settled by a certain catena of decision that there can be no question of estoppels against the Government in the exercise of its legislative, sovereign or executive powers.”

f. Estoppel and public policy:-

The doctrine is equitable and, therefore, it must yield to equity and can be invoked in the larger public interest. If a promise or agreement is opposed to public policy, it cannot be enforced. Example, a right to reservation to promote interests of certain backward classes. If a person who does not belong to that class obtains false certificate and gets an employment, and on coming to know about the true facts, has been removed from service, he cannot invoke this doctrine.

g. Estoppel and Public Interest:-

The doctrine of promissory estoppel is equitable and it cannot be invoked against public interest. It does not apply if the results to be achieved are against public goods. The doctrine must yield to equity.

In Kasinka Trading Co. v. Union of India, a notification was issued under the Customs Act, 1962 granting exemption from payment of customs duty on certain raw material imported from foreign country. The notification was issued in public interest and it was to remain in force for two years. However, the exemption was withdrawn before the expiry of period again in public interest. The Supreme Court upheld the action.

 

The principle lay down in above the Shrijee Sales Corpn. v. Union of India, the Supreme Court stated: “Once public interest is accepted as the superior equity which can override individual equity, the principle should be applicable even in cases a period has been indicated.”

 

 

NEED FOR LEGISLATION :

 

The present state of the law-

The present state of the law relating to liability of the State in tort in India, it is apparent that the law is neither just in its substance, nor satisfactory in its form. It denies relief to citizens injured by a wrongful act of the State, on the basis of the exercise of sovereign functions – a concept which itself carries a flavour of autocracy and high-handedness. One would have thought that if the State exists for the people, this ought not to be the position in law. A political organisation which is set up to protect its citizens and to promote their welfare, should, as a rule, accept legal liability for its wrongful acts, rather them denounce such liability. Exceptions can be made for exceptional cases – but the exceptions should be confined to genuinely extraordinary situations.

 

Article 300, a weak foundation-

Keeping aside the injustice, in point of substance, of the existing law, there are several other serious defects in the present position. The foundation of the present law is article 300 of the Constitution. Its language necessarily takes one, through successive steps of (what may be called) tracing back of the genealogy of the law, to a moment of time residing in the 19th Century – that to a moment when the country was governed or dominated by alien rulers. The law is, in effect, based upon archaic provisions. In this sense, article 300 has turned out to be a weak foundation, on which to build up an edifice of the law on the subject.

 

The test of corresponding state or province-

In another respect also, a test resting on article 300 has become unworkable. In so far as the article incorporates the test of the law of “corresponding Province” or “corresponding Indian State”, the test has become practically unworkable, for the following reasons.

 

(a) The political map of India, as drawn in 1950, has been re-drawn again and again in the post – 1950 period. The process began in 1953. It assumed greater importance in 1956, as a result of the enactment of the States Reorganisation Act. It was continued when the (erstwhile) State of Bombay was bifurcated. And the process of re-drawing the boundaries has not yet ended. A time will come, when only an assiduous historical researcher will be able to locate the “corresponding Province” or Indian State. The power of the President under article 366(7) of the Constitution (to determine the corresponding State) will itself be difficult to exercise.

 

(b) The areas comprised within the princely States of India present yet another difficulty. These States (as is well known) had varying grades of political development. While some of them had well-established systems of law reporting, the same could not be said of the rest. Thus, in the absence of availability of satisfactory material, having its source either in statute or in case law, it is difficult to find out what was the legal position in a particular Indian State, on the subject under consideration.

 

Take, for example, the picturesque city of Udaipur. Before 1950, it formed part of the Rajasthan Union, which had acceded to the Indian Dominion. But the Rajasthan was structured (through the process of “Covenant) out of the Covenanting States of (former) Rajasthan, Jaipur, Jodhpur Bikaner, Matsya, Union etc. The former Rajasthan Union itself had been formed, through a similar process of Covenant, out of the merger of several Rajput States (Mewar, Kotah, Dungarpur etc.). Hence, if a tort is committed today, in Udaipur, by a State Government officer, and the question arises of the liability of the State Government for the same, it would become necessary to examine the constitutional law governing the (erstwhile) State of Mewar (with Udaipur as its capital). Incidentally, for a short while, that State (Mewar) happened to have a written Constitution – happily, a Constitution guaranteeing fundamental rights. But very few persons can, at the present day, manage to have access to a copy of that Constitution or to the rulings of the High Court of Mewar on that Constitution.

 

(c) Thus, the law in the areas concerned becomes inaccessible, not only to the common man, but (perhaps) also to an ordinary lawyer, who does not have an army of research scholars under his command.

Post Constitution decisions –

It keeps one’s researches limited strictly to post-Constitution decisions, the picture is equally confusing. There is a manifest conflict of judicial decisions. In theory, the dividing line between sovereign and non-sovereign functions is the criterion of liability. But there are serious disparities in the stance adopted by various courts in this regard. Courts themselves have expressed their uneasiness about this test and about the difficulties in its practical application particularly in Kasturi Lal case and N. Nagendra Rao case.

 

Need for certainty and codification –

The Commission is strongly of the view, that this is one area of the law where the need for a clear statement of the law in a statutory form is urgent and undeniable Jurists may hold different views as to the relative merits of codified and un-codified law. But this is definitely an area where a statutory formulation is badly needed, in the light of the considerations set out in the preceding paragraphs. We consider it desirable that the general should be reduced to particular. Abstract doctrines must be converted into concrete propositions; and the law should present itself in legislation that is at least easily accessible and conveniently readable. So far as the subject under consideration is concerned, the legal maxim. Ubi jus incertum, ibi jus nullum (where the law is uncertain, there is no law), can be applied, with great force.

Role of the State tort law :

Role of the State tort law in any modern society, interactions between the State and the citizens are large in their number, frequent in their periodicity and important from the point of view of their effect on the lives and fortunes of citizens. A large number of the problems so arising fall within the area of the law of torts. This is because, where relief through a civil court is desired, the tort law figures much more frequently, than any other branch of law.

 

In the modern sense, the distinction between sovereign or non-sovereign power thus does not exist. It all depends on the nature of the power and manner of its exercise. Legislative supremacy under the Constitution arises out of constitutional provisions. The legislature is free to legislate on topics and subjects carved out for it. Similarly, the executive is free to implement and administer the law. A law made by a legislature may be bad or may be ultra vires, but, since it is an exercise of legislative power, a person affected by it may challenge its validity but he cannot approach a court of law for negligence in making the law. It is in (the) public interest for acts performed by the State, either in its legislative or executive capacity, it should not be answerable in torts. It would be in conflict with even modern notions of sovereignty.

 

The modern thinking of progressive societies and the judicial approach is to do away with archaic State protection and place the State or the Government on any other juristic legal entity. It is contrary to modern jurisprudential thinking. The need of State to have extraordinary powers cannot be doubted. But with the conceptual change of statutory power being statutory duty for (the) sake of society, the people, the claim of a common man or ordinary citizen cannot be thrown out merely because it was done by an officer of the State; duty of its officials and right of the citizens are required to be reconciled, so that the rule of law in a Welfare State is not shaken”.

 

The Court linked together the State and the officers: “The determination of vicarious liability of the State being linked with (the) negligence of its officers, if they can be sued personally for which there is no dearth of authority and the law of misfeasance in discharge of public duty having marched ahead, there is no rationale for the proposition that even if the officer is liable, the State cannot be sued.”

 

Protection Clauses :

The proposal to deal with what can be called “protection clauses” – that is to say, statutory provisions which, in substance, provide that a suit etc. shall not lie against the Government for anything which is done or intended to be done under a particular enactment. In order to deal with the relevance of such protection clauses to the subject matter of the present Report, we would, like to quote a sample. This is how section 84 of the Information Technology Act, 2000 (21 of 2000), reads:

“84. Protection of action taken in good faith

No suit, prosecution or legal proceeding shall lie against the Central Government, the Controller or any person acting on behalf of him, the presiding officer, adjudicating officers and staff o the Cyber Appellate Tribunal, for anything which is in good faith done or intended to be done in pursuance of this Act or any rule or regulation or order made thereunder”.

 

Another model – a simpler one – is supplied by section 37 of the Drugs and Cosmetics Act, 1940, in these terms: “37. Protection of taken in good faith

No suit, prosecution or other legal proceeding shall lie against any person for anything which is on good faith done or intended done under this Act.

 

Thus, section 88 of the Chit Funds Act, 1982, provides as under: “88. Protection of action taken under the Act

No suit, prosecution or other legal proceeding shall lie against the State Government, the Registrar or other officers of the State Government or the Reserve Bank or any of its officers exercising any powers or discharging any functions under this Act in respect of anything which is in good faith done or intended to be done in pursuance of this Act or the rules made thereunder”.

 

Section 28, Consumer Protection Act, 1986, provides as under: “28. Protection of action taken in good faith

No suit, prosecution or other legal proceeding shall lie against the members of the District Forum, or the State Commission or the National Commission or any officer or person acting under the direction of the District Forum, the State Commission or the National Commission or executing any order made by it or in respect of anything which is in good faith done or intended to be done by such member, officer or person under this Act or under any rule or order made thereunder”.

 

Section 22 of the Insurance (Regulation and Development) Act, 1999 (41 of 1999), provides as under: “22. Protection of action taken in good faith

No suit, prosecution or other legal proceedings shall lie against the Central Government or any officer of the Central Government or any member, officer or other employee of the Authority for anything which is in good faith done or intended to be done under this Act or rules or regulations made thereunder”.

 

Section 68 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), provides as under: “69. Protection of action taken in good faith

No suit, prosecution or other legal proceeding shall lie against the Central Government or a State Government or any officer of the Central Government or of the State Government or any person exercing any powers or discharging any functions or performing any duties under this Act, for anything in good faith done or intended to be done under this Act or any rule or order made thereunder”

 

Section 38 of Protection of Human Right Act, 1993 (10 of 1993) provides as under:

“38. Protection of action taken in good faith

No suit or other legal proceedings shall lie against the Central Government, State Government, State Commission or any member thereof or any person acting under the direction either of the Central Government, State Government, Commission or the State Commission, in respect of anything which is in good faith done or intended to be done in pursuance of this Act or of any rules or any order made there under or in respect of the publication, by or under the authority of the Central Government, State Government, the Commission or the State Commission, of any report, paper or proceedings”.

Remedies:

The usual remedies are damages and/or an injunction. In some instances, the tort may be waived, and the defendant required accounting for profits gained through the wrong. The law of tort, as well as protecting individual rights to property damage and personal injury caused by negligence, also protects other interests, such as reputation (defamation), title to property (trespass), enjoyment to property (nuisance), and commercial interests (conspiracy).

 

The landmark judgement was Nilabati Behra V. State of Orissa awarding compensation to the petitioner for the death of her son in police custody, the court held that a claim in public law for compensation for contravention of human rights and fundamental freedoms, the protection remedy for enforcement and protection of such rights and such a claim based on strict liability made by resorting to constitutional remedy provided for the enforcement of fundamental right is distinct from and in addition to the remedy in private law damages for tort.

 

The court expressly held that principle of sovereign immunity does not apply to the public law remedies under Article 32 and Article 226 of Indian Constitution for the enforcement of fundamental rights. Kasturi Lal is confined to private law remedies only.

 

In Registered Society V. Union of India and Chairman, Railway Board V. Chandrima Das cases. It was held “where public functionaries are involved and the matter relates to the violation of fundamental rights or the enforcement of public duties, the remedy would still be available under the public law notwithstanding that a suit could be filed for damages under private law.” It opens up the possibility of development of public law torts which requires different considerations than the private law torts and which is more suitable for State liability in torts.

 

Crown Privilege: In every democratic society, it is importance that citizens get sufficient information and knowledge about the functioning of the Government. Democracy cannot survive without accountability to public. The very integrity of judicial system and public confidence depend on full disclosure of the facts.

(a) England: – In England, the Crown has the special previlege of withholding discloure of documents, referred to as “Crown Previlege”. It can refuse to disclose a document or to answer would be injurious to the public interests.

(b) India:

Statutory Provision: In India the basic principle is incorporated in section 123 of the Evidence Act, 1872, which read as-

“No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned who shall give or withhold such permission as he thinks fit.”

 

The section 123 confers a great advantage on the Government as inspite of non-production of relevant evidence before the court, no adverse interference can be drawn against it if the claim of privilege is upheld by the court.

 

Miscellanoeus Privileges of Government:

 

a. Under section 80 of the Code of Civil Procedure, 1908, no suit can be instituted against the government until the expiration of two months after a notice in writing has been given.

b. Under section 82 of the Code of Civil Procedure, 1908, when a decree is passed against the Union of India or a State, it shall not be executed unless it remains unsatisfied for a period of three months from the date of such decree.

c. Under article 112 of the Limitation Act, 1963, any suit by or on behalf of the Central Government or any State Government can be instituted within the period of 30 years.

 Conclusion:

In the light of above, it would be mention the observation of Apex court in N.Nagendra Rao Company V. State of AP . The honourable court noted the recommendations of the Law Commission first Report for statutory recognising the liability of the State as had been done in England through the Crown Proceedings Act, 1947 and in the USA through the Federal Torts Claims Act, 1946. It therefore, held that the doctrine of sovereign immunity has no relevance in the present day.

It is unfortunate that the recommendation of the Law Commission made long back in 1956 and the suggestions made by the Supreme Court, have not yet been given effect to. The unsatisfactory state of affairs in this regard is against social justice in a welfare state. In absence of State Liability Legislation, it will be in consonance with social justice demanded by the changed conditions and the concept of welfare state that the courts will follow the recent decision of the Supreme Court rather than Kasturi Lal.

 

 

Constitutional validity of triple talaq.

Co-authored by Eshanee Shukla and Gargi Whorra,

CASE COMMENTARY ON

A.S. Parveen Akthar

Versus.

The Union of India (UOI), represented by the Secretary to Government, Ministry of Law, Y. Md. Ismail Farook, The Station Director, All India Radio, Association for Women Assistance and Security (AWAS) rep. by its Secretary I. Abdul Bhai, Mrs. Bader Syed and Tamil Nadu Advocates Meelad Forum represented by its President A.S. Bibi John: “Is the judgment ‘truly’ bad in theology but good in law?”

 

SUMMARY OF FACTS:

The brief factual matrix of the case is as follows: A.S. Parveen Akhtar, the Petitioner above named was a Muslim woman who was married to Y. Md. Ismail Farook, the second Respondent on 06.02.1990. After the marriage, there were martial differences between the husband and the wife.

As per the Petitioner, her parents had been compelled to give dowry before the marriage. But in spite of the same, the second Respondent (the Petitioner’s husband) threatened to divorce the Petitioner, if she did not persuade her parents to give him a scooter as an additional dowry. Since the Petitioner’s parents were unable to provide for the additional dowry demand. Therefore, the Petitioner was thrown out of Respondent No.2’s home on 04.03.1991, and that she was forced to stay in a local ladies hostel. Further, the second respondent had told the Petitioner that he would permit her to live with him only if additional dowry is given to him by her parents.

Thereafter, the Petitioner on 01.05.1991 was intimated through her father that the second respondent had pronounced talaq in the presence of two witnesses in a single sitting in Talaq-ul-biddat form and a receipt of the notice was sent by the second respondent to the Petitioner’s father, attempts were made to persuade the second respondent to take back the Petitioner, but he declined to do so on the ground that the irrevocable talaq had already taken place.

 

WRIT PETITION FILED BY THE PETITIONER BEFORE THE HON’BLE HIGH COURT OF MADRAS AT CHENNAI:

 

Pursuant to the aforesaid events, the Petitioner preferred a writ petition no. 744 of 1992 before the Hon’ble High Court of Madras, for a declaration that Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 in so far as it seeks to recognise and validate Talaaq-ul-Biddat or Talaaq-i-Badai form of divorce as void and unconstitutional as such form of talaq is not only repugnant to natural justice but also violative of fundamental rights guaranteed under Article 14, Article 15 and Article 21 of the Constitution of India. Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 reads as follows:

 

“Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal properly inherited or obtained under contract or gift or any other provision of Personal Law. marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).”

Submission of the Petitioner before the Court:

The Petitioner submitted before the Court that Talaq-ul-biddat is not a mode recognised in the Quran, and that the Holy Book provides for reconsideration and reconciliation before recognising divorce as irrevocable. The Petitioner referred to Quran which says, “Any if you fear a breach between the two, appoint an arbiter from his people and an arbiter from her people. If they desire agreement, God will affect harmony between them.” She has also stated that due to lack of knowledge and understanding of the permissible forms of talaq and of the need for reconciliation and reconsideration before it could be regarded as irrevocable, this form of talaq has been widely used resulting in untold misery and harm to the divorced wife and the children of the marriage.

 

It was her further case that the Muslim Personal Law (Shariat) Application Act, 1937 , by providing for the application of Muslim Personal Law in matters relating to marriage where the parties are Muslims, conveyed a wrong impression that the law sanctions this sinful form of talaq which form, according to the petitioner is grossly injurious to the human rights of the married Muslim women and offends Articles 14, 15 and 21 of the Constitution. She has submitted that the assumptions and beliefs upon which such a form of divorce is recognised are factually false, scientifically untenable and contrary to the spirit and provisions of the Constitution. She has also stated that this form of divorce has been declared to be a spiritual offence in the Quran and giving recognition to that form interferes with the Muslim women’s right to profess and practice her religion, inasmuch as it unleashes a spiritual offence on her and is thus, violative of Article 25 of the Constitution.

Submission of the Respondents before the Court:

The Respondents opposed the prayer in the writ petition and submitted that this form of talaq, though sinful, had been recognised for a long period of time and that the Courts had in the earlier decisions held that this form of talaq though bad in theology, the same was good in law. It was also submitted that any modification of the Personal Law can only be made by statute and further that Personal Law cannot be regarded as being violative of any of the rights given in Part III of the Constitution.

Further, it was stated that Personal Laws fall outside the ambit of Article 13 of the Constitution, and therefore, the question of declaring any part of the Personal Law of any section of the population of this country as being void on account of inconsistency with the rights guaranteed under Part III of the Constitution, does not arise.

 

 

The Judgment:

After hearing both the parties, a division bench comprising of Hon’ble Mr. Justice R. Jayasimha Babu and Hon’ble Mr. Justice E. Padmanabhan, held that whatever may be the form of talaq, first and foremost it must be for a reasonable cause, and must be preceded by several attempts for reconciliation by arbitrators chosen from the families of each of the spouses. As per the Hon’ble Court, the grounds on which the petitioner has sought a declaration that Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 in so far as it seeks to recognize and validate Talaaq-ul-Biddat or Talaaq-i-Badai form of divorce, as void and unconstitutional, are mainly that it does not provide for reconsideration and is not preceded by attempts at reconciliation. The Hon’ble Court held that the petitioner’s apprehension that notwithstanding absence of cause and no efforts having been made to reconcile the spouses, this form of talaq is valid and not going against the constitution of the country. The writ petition was accordingly dismissed.

CRITIQUE OF THE JUDGMENT:

We are of the strong opinion that this judgment of the Hon’ble High Court of Madras which has that held Talaq-ul-biddat to be valid, has not only resulted in atrocity on Muslim women but has also inflicted a great blow to the fundamental rights, which form the basic structure of the Constitution of India. This form of talaq is infested with the malady of inequality which goes against equality which is enshrined in Article 14 of the Indian Constitution. Talaq-ul-biddat distorts the fundamental right against any form of discrimination enshrined in Article 15 of the Indian Constitution. Lastly, digression from normal format of divorce, talaq-ul-biddat mars the essence of Article 21, the right to life and personal liberty.

In the instant case of Praveen Akhtar, the woman’s liberty to choose to live with man she was married was unilateral bestowed on the husband in the form of triple talaq. The wife never even had the personal liberty to give her consent whether or not she wanted this marriage to exist or not. Where do the arbitrators come into the picture when the husband in front of his entire family had already thrown her out and later divorced her? Will such a family act as arbitrators or mere supporters of the husband?

Talaq-i-Biddat in its true essence stands for innovated (or sinful) form of Divorce. It is defined as a divorce which is pronounced thrice in one sitting when the wife is in the state of purity (turh). According to the Hanafi, Imam Malik and Shafii when triple divorce is pronounced, the wife will become totally alienated from the husband and he cannot remarry her. She becomes haram (totally prohibited) for him. Neither can he take her back nor can he go for fresh nikah with her. Although the husband can go for nikah with her only after she marries another person and that person divorces her on account of marital conflict or she becomes a widow.

Ironically, according to the Holy Qur’an, divorce is not an arbitrary and whimsical thing. The method prescribed by the Qur’an for divorce is that one can give divorce twice only, i.e., on two different occasions and then either he has to keep the woman with kindness or leave her with benevolence. The Talaq-i-Biddat, as its name signifies, is the heretical or irregular mode of divorce, which was introduced in the second century of the Mahommedan era. It was then that the Omeyyada monarchs, finding that the checks imposed by the Prophet on the facility of repudiation interfered with the indulgence of their caprice, endeavoured to find an escape from the strictness of the law, and found in the pliability of the jurists a loophole to affect their purpose. As a matter of fact, the capricious and irregular exercise of the power of divorce which was in the beginning left to the husbands was strongly disapproved of by the Prophet. It is reported that when once news was brought to him that one of his disciples had divorced his wife, pronouncing the three talaqs at one and the same time, the Prophet stood up in anger on his carpet and declared that the man was making a plaything of the words of God, and made him take back his wife.

The most abominable aspect of triple talaq is its prima facie inequality for it does not bestow the right in the hands of woman as it does in case of the opposite sex. Strangely, the wife would need to go to a Darul Qaza and prove the atrocities committed by her husband in order to get a divorce. While, the husband can pronounce talaq on the wife as in when he wishes to, without any justification or logic. The man has power to break the marriage at even whimsical ground but the women have no sort of protection. Where is equality in this entire scenario?

Further, a woman after the pronouncement of talaq has to part with her ‘mehr’, which she gets along with her at pure whim of her husband. Due to this form of talaq a woman not only has to lose her mehr but also forgo her life after matrimony without any say thus triple talaq all in all is violative of Article 14.

Is it right to believe that a marriage which is entered by the will of both can be unilaterally destroyed. In fact, in the instant case of Praveen Akhtar, the inequality and arbitrariness clearly reflects in the fact that the woman was not even told directly by the husband about the talaq but was informed by her father. Thus how can this form of talaq be in line with the Right to Equality? Even commercial contracts cannot be broken in this manner; are human relationships so fragile and cheap?

Reliance is placed on Ahmedabad Women’s Action Group (AWAG) and others v. Union of India , a writ petition was filed before the Hon’ble Supreme Court to declare Muslim Personal Law, which enables a Muslim male to give unilateral talaq to his wife without her consent and without resort to judicial process of courts, as void, offending Articles 14 of the Constitution of India. Unfortunately, the said writ was dismissed by the Apex Court. The ironical part is that not only does the Court shy away from interfering in the personal law but they also shun their responsibility to rectify any constitutional problem arising in personal law. Courts have been put in place to enforce constitutional values. Their refusal to do so is an abdication of function.

It is relevant to note the approach of the Supreme Court in Danial Latifi v. Union of India . In interpreting the Muslim Women (Protection of Rights on Divorce) Act, 1986, the Court held that the Act would be unconstitutional if not interpreted to mean that women would get a reasonable and fair provision and maintenance.

The Supreme Court, in Zohara Khatoon v. Mohd. Ibrahim , had expressed its grave concern towards this arbitrary of talaq by observing as follows :- “There can be no doubt that under the Mahomedan law the commonest form of divorce is a unilateral declaration of pronouncement of divorce of the wife by the husband according to the various forms recognised by the law. A divorce given unilaterally by the husband is especially peculiar to Mahomedan law. In no other law has the husband got a unilateral right to divorce his wife by a simple declaration.” Thus, the unfortunate part is that even after recognising this fact, still the Supreme Court itself allows such open discrimination on the basis of the mere fact of being in a particular religion, a blatant violation of Article 15 of the Constitution of India.

The fact of the matter is that the source of such form of a cultural emotional abuse does not rest in the Quran but is the progeny of ancient and contemporary practices thus discriminating Muslim woman from other woman by taking away the rights and protections enjoyed by these women of other religion. Today Hindu women are coparcenaries, they have equal rights in inheritance as Hindu men then why such blatant discrimination when it comes to divorce and other related rights in case of a Muslim woman? Thus such form of Talaq is not only against Article 15 on the basis of religion and sex but also discriminates among women itself due to its inherent malady.

The discriminatory nature of the state is so blatantly obnoxious if one goes through the Indian Divorce Act, it is evident that there is no provision for Muslim women to get maintenance against women of any other religion nor was any provision added in its amendment in 2001. Furthermore in the case of Rahmat Ullah And Khatoon Nisa vs State Of U.P. And Ors it was held by the Hon’ble Court that under a valid marriage under the provisions of the Muslim Women’s (Protection of Rights and Divorce) Act 1986 she is not entitled to maintenance. Thus even today the fact that the still prevailing recognition of such divorce validates discrimination. There is a need for a decision from the Apex Court in this regard.

In a startling recent case of Nagma Bibi of Orissa, the deplorable condition of Muslim women gets reflected further. The woman in this case had been divorced by her husband in a drunken state. Next morning the husband realized he had committed a terrible mistake and wanted his wife back. She also wanted to go back but community leaders are preventing them from doing so. They forcibly sent her with her three children to her father’s house. It was suggested that Nagma Bibi will have to marry someone else and only upon being divorced by that person can she re-marry her husband. This practice is called Halala. The fact to be noted here that discrimination of Muslim women is being done by community leaders themselves on grounds of unislamic practices like Halala or triple Talaq which are not prescribed in the Quran.

In Mumbai, since the jurisdiction for minorities lies only in the hands of the High Court unlike Hindu marriages or marriages under Special Marriage Act , it further adds fuel to the fire of discrimination by making the procedure very expensive forcing the aggrieved women to turn towards Qazis and Maulvis for settlements as provided by unjust customs. If even today we see Muslims as minorities why is their hesitation in trying to uplift them? Further discrimination can be seen if a Muslim woman seeks divorce she has to file under the Dissolution of Muslim Marriage Act in the High Court. The irony is that if a woman does so her right to maintenance under S. 125 Cr.PC is forfeited. Even her right to relief from a marriage where she might be the sufferer comes at an additional price and further suffering.

Muslim women suffer on many accounts, not only because the husband can give divorce on whimsical grounds but also that when she wanted to go back to him he hid behind the facade of the acknowledged fact that such a divorce is irrevocable. She suffered from such unilateral discrimination since even the laws, the Acts and the Courts of our country had made no provisions to prevent such blatant discrimination in a multi-religious country like ours. Where countries like Egypt, Iraq, Sudan etc. way back had made triple talaq as unrecognised and treat it as a revocable form of talaq why does a democracy like ours shy away to protect the Muslim women who are as much a part of India as anyone else and in this manner truly execute their duty of upholding the validity of the Constitution in its true spirit.

Lastly, digression from normal format of divorce, Talaq-ul-biddat mars the essence of Article 21, the right to life and personal liberty. This article though dealing with two simple grounds but the scope is extremely wide. The fact that the article deals with the most essential prerequisites, triple talaq which violates the spirit of these essentials mar’s the essence of this Article. Personal liberty is necessary for a healthy overall development of the units of society.

Not only Muslim personal law but even Section 2 of the Shariat Act 1937 which recognises talaq goes against the spirit of this Article by giving indefinite unilateral power in the hands of men. Thus they are directly giving a thrashing blow to the woman for they in no manner have the liberty to use such forms of divorce and free themselves from the clutches of a marriage staying in which would be suicidal. Rather their liberty is on the whim of their husband who in triple talaq does not even require consenting his wife before pronouncing it. Even if the language is clear and unambiguous even if that it could be reviewed and interpreted so as to keep pace the changing society Shariat came more than 70 years ago. Thus the since portions of the Act goes against Article 21 more practical interpretation should be given to this Act. Like in the case of Naz Foundation v. Union of India the Court gave an unpredictable judgement of legalising gay relationship between two consenting adults. Thus such liberal and practical interpretation should be given to cure this malady in personal law. Furthermore not only the woman but the man also suffers when such divorce is given in a state where his mental capabilities are not in his control or when he regrets his decision taken on the spur of the moment, since Talaq-ul-biddat is irrevocable the liberty to come back is taken away from both the of them.

In the case of Parveen Akhtar, the aggrieved woman got no relief in form of any financial maintenance, a woman whose entire life is finished in the simple reiterating of the word talaq for reasons often or not known to her what she gets in return is no mehr but money for maintenance only for three months of the iddat period. Section 3 (a) 1 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 states “a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband”. How will such a woman revive her shattered life within three months with such meagre financial support. Thus how can the administration and the judiciary live with the fact that such blatant violation of fundamentals of life is being validated and practised with no one to object or even raise a finger.

CONCLUSION:

In Praveen Akhtar’s case not only the vehement form of the divorce is used to appease the whims of the husband. Irony remains that though the Court in innumerable instances have recognised triple talaqs discriminatory nature but since it is a sensitive issue courts majorly shy away. Thus how can this form of talaq be in line with the Right to Equality? Even commercial contracts cannot be broken in this manner; are human relationships so fragile and cheap?

Such injustice further emphasis on the dire need of Article 44 to become a reality in the form of uniform civil code. When there are Acts to protect the rights of all religions even minorities like Parsis who make a small population of only 60,000 why should the massive section of the Muslim population be deprived from equal laws and rights. In this 21st century everything is so advanced that in a recent case a man divorced his wife through Skype then why even today are we ardently following practices which act as a sword hanging on the neck of Muslim women only. For too long women have been discriminated on the ground of personal law, a tool used to bargain for their wants from politicians. When neither the Prophet nor the Quran distinguishes between men and women why the fate of Muslim women should be sealed by the hands of Muslim men alone.

Even in the instant case the woman had her hands tied while the sword of divorce could slit her throat any time at the whim of her husband. The tool of triple talaq gave her husband undisputed power. Such discrimination and inequality hoarsely expressed in the form of unilateral triple talaq is abominable when seen in light of the progressive times of the 21st century. Not only did the personal laws have any relief nor the fact that such mode of divorcing which was going against the law of the land, The Constitution still she had to beg for mercy without any relief.

No one can deny that there are significant rulings that should have a far-reaching impact, but unfortunately due to the submissive attitude of the legislature and the judiciary they hardly bring any change social norms within communities, they may thus remain as ornamental snippets in law journals.

It must be the courts prerogatives to reform Muslim matrimonial law taking into account the experiences and demands of women from the Muslim community. It should be codified and certain based on the most liberal interpretation of the Quran, the most beneficial provisions of Muslim personal laws. Moreover it should enshrine the progressive judgments by courts of law, situated within a larger framework of women’s human rights and fundamental rights guaranteed by the Indian Constitution.

 

Abstract

Not
at the conception of the religion but further down with its growth did the
malady of Talaq-ul-Biddat arise. But the most unfortunate aspect is that this
unilateral sword bestowed in the hands of the husband is released to sacrifice
the woman at his whim and this is recognised by law in the 21st
century India. Not only is this form of divorce against all scruples of
morality but inflicts severe blows to the spirit of womanhood. The instant case
enfolds all the grievances a woman would have as a victim of such injustice.
The article takes the instant case as a background to throw light on how such
form of abominable divorce vitiates three of the most prime fundamental rights
enshrined in the Constitution of India. Article 14 which speaks for equality
Article 15 which  speaks  against discrimination and Article 21 which
is about the Right of Life and Liberty 
are burnt to ashes with the courts including the Supreme Court, the
protector of the Constitution of India, till date has not declared this form of
Talaq void and unconstitutional. Till when will the facade of personal law be
able to shroud such blatant injustice. Irony remains that though the Court in
innumerable instances have recognised triple talaqs discriminatory nature but since it is a sensitive issue
courts majorly shy away. Thus how can this form of talaq be in line with the Right to Equality? Even commercial
contracts cannot be broken in this manner; are human relationships so fragile
and cheap? No one can deny that there are significant rulings that should have
a far-reaching impact, but unfortunately due to the submissive attitude of the
legislature and the judiciary they hardly bring any change social norms within
communities, they may thus remain as ornamental snippets in law journals. The
article thus attempts to question the Judiciaries attitude and to throw light
on the question whether this form of divorce and the judgment ‘truly’
bad in theology but good in law?

 

Dispute Resolution – The Commercial Way

DISPUTE RESOLUTIONSaloni Aggarwal

I] INTRODUCTION

‘It bids us remember…to settle a dispute by negotiation and not by force; to prefer arbitration to litigation- for an arbitrator goes by the equity of a case, a judge by the strict law, and arbitration was invented with the express purpose of securing full power for equity.’- Aristotle

With globalization magnifying at an uncontrolled rate, companies increasingly demand arbitration services for business related conflicts and agreements. It is because arbitration avoids costly and lengthy lawsuits. This demand can be well catered to with the form of arbitration that specifically concentrates on the commercial aspects of disputes and since commercial dispute resolution has been the talk of big corporate, this paper aims at differentiating the scope of commercial arbitration as a separate field of arbitration and not as a subset of Domestic arbitration as commercial transactions have acquired considerable importance.

The ministry of law and justice has introduced the term ‘commercial disputes’ in its recent consultation paper discussed over the proposed amendments in Arbitration and Conciliation Act, 1996 which indicates that the Government acknowledges the importance of Commercial disputes. And Commercial Arbitration is indeed a means to resolve such disputes.

The main object of the Bill was to provide for the establishment of dedicated divisions called the Commercial Division in each High Court of India to expertise the disposal of commercial disputes.

Today’s global economy makes channels of dispute resolution more important than ever and efforts of establishing such an effective system of commercial arbitration are finding success.

In comparison with various jurisdictions across the world like London, New York etc there are, undoubtedly, some of the most successful frameworks of Commercial Arbitration and they have been applauded and exploited by the business community. A step in the same direction by India will not only project its determination to fast track justice but also to meet the demanding world standards.

 

II] UNDERSTANDING COMMERCIAL ARBITRATION

Arbitration, as a layman understands is resolving disputes with the help of a third person. Quoting the words of eminent jurist Sir Edward Blackstone,

‘Arbitration is a bond entered into by two or more parties to abide by the decision of the arbitrator’.

A distinguished French lawyer wrote of arbitration as an “apparently rudimentary method of settling disputes, since it consists of submitting them to ordinary individuals whose only qualification is that of being chosen by the parties.

Also, read in one sound in arbitration these days is the word ‘commercial’, which according to the dictionary means any activity or transaction which turns out to be a source of any gain, profit, benefit, or advantage to the parties is commercial.

With changing times, the meaning of the word, commercial arbitration has undergone various considerations. A noteworthy increase in the role of domestic trade in the economic development of the nation over the last few decades has been accompanied by a considerable increase in the number of commercial disputes which must be looked into and a changing definition of dispute resolution mechanism needs appreciation. Ever since globalization, rapid development has meant increased caseloads of the already overburdened courts, further leading to notoriously slow adjudication of commercial disputes. As a result, alternative dispute resolution mechanisms, which now includes commercial arbitration has become more crucial and pivotal for operating businesses in India as well as for those doing businesses with Indian firms, as also reported by foreign authors.

In spite of best efforts, disputes do arise during performance of business contracts and they arise for various reasons. Unresolved disputes have a tendency to upset the smooth performance and successful completion of business contracts and may, therefore, render an otherwise profitable transaction into a probable loss. Therefore it is necessary for carrying on business transactions smoothly and profitably that the area of disputes during performance of contracts is narrowed down and provision is made for amicable and quick settlement of disputes that may arise. The facts discussed above do call for the concept of Commercial Arbitration in India.

Whereas commercial arbitration when put to practice, one will find that less has been written to understand the definition of the term in Indian context. The United Nations Commission on International Trade Law (UNCITRAL) Model Law on Commercial Arbitration 1985; defines the term commercial arbitration as; to cover matters arising from all relationships of a commercial nature, whether contractual or not.

“Relationships of a commercial nature include, but are not limited to, the following transactions: any trade transaction for the supply or exchange of goods or services; distribution agreement; commercial representation or agency; factoring; leasing; construction of works; consulting; engineering; licensing; investment; financing; banking; insurance; exploitation agreement or concession; joint venture and other forms of industrial or business cooperation; carriage of goods or passengers by air, sea, rail or road.”

This definition is a broad reflection of what is being practiced within the small scope of our Arbitration and Conciliation Act, 1996. It can be easily inferred, that the scope of the word commercial is different when compared to other transactions which are presently being resolved by the arbitration in India under the 1996 Act.

This does give rise to the need of a new definition of commercial arbitration under the existing laws so that the humongous need of this corporate India in resolving commercial disputes arising out of different transactions and relationship be countered, which can in some cases be contractual. The author would here like to point out that Commercial arbitration as such is not defined in any law, but the raw understanding of the term says that is it is one of the methods of resolving business disputes arising out of commercial transactions by arbitration.

 

III] PRESENT STATUS OF COMMERCIAL ARBITRATION IN INDIA

In the present Arbitration and Conciliation Act 1996, the term commercial arbitration is not used, but it is evident that the commercial arbitration although different in nature still it is being dealt under the head of the present arbitration laws. It is necessary to acknowledge that commercial arbitration is important and is worthy of special attention from the Government and the Judiciary, looking at the quantum of the increasing amount of commercial disputes.

Although the UNCITRAL model of 1985, contains the definition of the term commercial. The question arises why the legislators at the time of drafting 1996 Act, did not adopt the meaning of term commercial in spite of UNCITRAL model already defining it?

The reason inferred could be that there was no need felt for the commercial arbitration at that particular point of time as it is felt today.

Understanding the term commercial in judicial sense, Kerala High Court quotes in case S.G of Assissi Sisters v. K.S.E.B with the approval of the Webster’s Third International Dictionary, the meaning of the word ‘commercial’ as engaged in ‘commerce’ and ‘commercialize’ means ‘to engage in, conduct, practice, or make use of for profit-seeking purposes as distinguished from participation, practice, or use for spiritual or recreational purposes or for other non-pecuniary satisfactions.

Looking from the constitution perspective, in the context of Article 301 which assures freedom of trade, commerce and intercourse, it has been held:

‘Trade and commerce do not mean merely traffic in goods, i.e. exchange of commodities for money or other commodities. In the complexities of modern conditions , in their sweep are included carriage of persons and goods by road, rail, air, and waterways , contracts, banking , insurance , transactions in the stock exchanges and forward markets, communication of information , supply of energy , postal and telegraphic services and many more activities-too numerous to be exhaustively enumerated which may be called commercial intercourse’.

The word ‘commercial’ has a restrictive meaning and excludes disputes in regard to boundaries, political matters, employment and family disputes and the like. The aspect can be better understood by referring to the jurisdiction of the English Commercial Court which deals with disputes arising out of trading and other Commercial relationships.

Though, the expression ‘commercial’ is not definite but it is construed broadly having regard to the manifold activities which are an integral part of the domestic trade.

 

IV] COMPARATIVE ANALYSIS OF COMMERCIAL ARBITRATION AT A GLOBAL LEVEL

To understand the need of Commercial Arbitration in India, it is important to acknowledge and compare the laws relating to commercial arbitration in different jurisdictions across the world like that of New York, London etc.

(i) In London

As London is a major business city, there exists a separate commercial court which is meant to be a popular forum for resolving commercial disputes.

It deals with complex cases arising out of business disputes, both national and international. There is particular emphasis on:

• international trade

• banking

• commodity

• arbitration disputes

The work of the Commercial Court is governed by Part 58 of the Civil Procedure Rules.

Direction 58.1 defines ‘commercial claim’ as any claim arising out of the transaction of trade and commerce and includes any claim relating to arbitration also.

ii) In New York

The New York Supreme Court Commercial Division is part of the Supreme Court of New York State and “handles complicated commercial cases.” The Supreme Court of New York State, including the Commercial Division, is one of the lower courts of the state court system referred to as a “court of original instance.” The Supreme Court is a trial court where a case is first filed and decided. The Commercial Division is bound by the Uniform Rules for New York State Trial Courts, including Section 202.70 which contains rules specific to the Commercial Division only and the definition of Commercial cases include:

“Applications to stay or compel arbitration and affirm or disaffirm arbitration awards and related injunctive relief pursuant to Civil Procedure Law and Rules, Article 75 involving any of the foregoing enumerated commercial issues — without consideration of the monetary threshold.”

Working on the similar lines, it is high time that India adopts the concept of commercial arbitration and reflects the same in form of an amendment in the present act of 1996. It is to further the intention of the bill passed by Lok Sabha.

 

V] PROSOPED AMENDMENTS DISCUSSED UNDER THE CONSULTATION PAPER

In the year 2001, the Law Commission of India recommended many amendments to the Arbitration and Conciliation Act in its 176th Report submitted to the Government which was later accepted by the Government. Later on, the Arbitration and Conciliation (Amendment) Bill 2003 was introduced in Rajya Sabha, and for the in depth study of its proposed amendments, a Committee under the Chairmanship of Justice Dr. B. P. Saraf was constituted in 2004 .

The Lok Sabha passed the Commercial Division of High Courts Bill, 2009 in the recent consultation paper issued under Ministry of Law and Justice by the Government of India which bring in scope for commercial arbitration and would eventually help in better resolution of commercial disputes in India.

The Bill is undoubtedly a step forward to enable fast and efficient delivery of justice in India and has manifold advantages. This Bill seeks to bring in uniformity across the country with regard to Commercial Disputes of a Specified Value as such disputes would be dealt with by the Commercial Divisions of High Courts.

It highlights some developments in relation to the commercial arbitration and they are:

a) Defining commercial dispute

Commercial dispute under S.2(a) of the Commercial Division of High Courts Bill, 2009 means a dispute arising out of ordinary transactions of merchants, bankers and traders such as those relating to enforcement and interpretation of mercantile documents, export or import of merchandise, affreightment, carriage of goods, franchising, distribution and licensing agreements, maintenance and consultancy agreements, mercantile agency and mercantile usage, partnership, technology development in software, hardware, networks, internet, website and intellectual property such as trademark, copyright, patent, design, domain names and brands and such other commercial disputes which the Central Government may notify.

Explanation I — A dispute, which is commercial, shall not cease to be a commercial dispute merely because it also involves action for recovery of immovable property or for realization of monies out of immovable property given as security or for taking any other action against immovable property.

Explanation II —A dispute which is not a commercial dispute shall be deemed to be a commercial dispute if the immovable property involved in the dispute is used in trade or put to commercial use.

Explanation III — An application under section 34 or section 36 or an appeal under section 37 of the Arbitration and Conciliation Act, 1996 shall be deemed to be a commercial dispute if the amount in dispute or claim relates to a specified value.

Therefore, the Bill proposes a wide, exhaustive and exclusive definition of Commercial Dispute which encompasses within its scope disputes not only between tradesmen but also relating to commercial property, both immovable and movable including intangible property like patents, copyrights, trademarks, etc. It also empowers the Central Government to add to the list of Commercial Disputes as and when necessary.

The proposed amended version of Sec 11 of the Arbitration and Conciliation Act, 1996 is as follows:

After sub-section (12), following sub-sections shall be inserted, namely:-

“(13) Notwithstanding anything contained in foregoing provisions in this Sections, where an application under this Section is made to the Supreme Court or High Court as the case may be for appointment of arbitrator in respect of ‘Commercial Dispute of specified value’, the Supreme Court or the High Court or their designate, as the case may be shall authorize any arbitration institution to make appointment for the arbitrator.

Explanation:- For the purpose of this sub-section, expression ‘Commercial Dispute” and “specified value” shall have same meaning assigned to them in the Commercial Division of High Court Act, 2009.” In a way, not directly the definition of Commercial Dispute has been adopted in the Arbitration and Conciliation Act, 1996 Act which highlights the fact that even the legislators feel that Commercial disputes have to be given special preference.

b) Constitution of a separate Commercial division in the High Court to specially resolve Commercial disputes

The consultation paper favours setting up of a separate commercial division in the High Court to look into commercial disputes. The Indian law relating to commercial arbitration has to be made responsive to these changes in the Indian economic scene.

Now, by a separate law it is proposed to constitute ‘Commercial Division’ in the High Court. In the said law it is also proposed that the said Commercial Division will also entertain applications under Section 34 and Section 36 and appeals under Section 37 of the Arbitration and Conciliation Act, 1996 where the arbitration relates to “Commercial Disputes” of specified value.

c) Existence of a valid Arbitration Agreement

In order to avoid raising of an issue of existence of a valid arbitration agreement and also to promote institutional arbitration, it has been suggested by certain persons that in respect of commercial contract of high threshold value, there should be a deemed arbitration clause in every such contract, unless the parties expressly and in writing agree otherwise. To achieve this object, insertion of following clause in the Arbitration and Conciliation Act, 1996 has been suggested:

Unless parties expressly and in writing agree otherwise, every commercial contract with a consideration of specified value( Rs. 5 crore or more) shall deemed to have in writing specified arbitration agreement. Also, in this Section “Commercial Contract” shall mean every contract involving exchange of goods or services for money or money’s worth and includes carriage of goods by road, rail, air, waterways, banking, insurance, transactions in stock exchanges and similar exchanges, forward markets, supply of energy, communication of information, postal, telegraphic, fax and Internet services, and the like.”

The amendment bill can prove to be advantageous regarding induction of the concept of commercial arbitration in India as it for the first time has defined the term commercial disputes in relation of Arbitration. This bill would make way for initiating the idea of commercial arbitration in India .

 

VI] CONCLUSION

It is lucid from the above discussion that the model of Commercial Arbitration has great scope.

Taking a look at the laws relating to the resolution of commercial disputes across different jurisdiction and appreciating the proposed changes in the consultation paper by the ministry of law, most importantly looking at the need of this developing economy where commercial transactions are increasing both in quantum and quality, commercial arbitration needs the required attention and this is a hand down solution. Hence it is felt that commercial arbitration which to some extent has been accepted as a separate field under the broad head of domestic arbitration is considered as a commendable step towards making Commercial Dispute Resolution an easier task.

 

LIVE-IN RELATIONSHIP AMONG HINDUS: REINCARNATION OF MARRIAGE

Nitansh rai, Sukant singh rawat

live-in relationshipSignificance of Marriage

“Let There Be Faithfulness To Each Other Until Death. This, In Short, Should Be Known As The Highest Duty Of Husband And Wife. So Let Husband And Wife Ever Strive Doing All Their Duties; That They May Not Be Separated From Each Other, Wander Apart.

-Manu Dharma Shastra

9.101-2.Sd, 161

Centuries ago, civilized societies recognized and acknowledged the most basic instincts of all – i.e., the need for companionship – and founded an honorable institution known as marriage. Hindu ancestors set out some guidelines to make sure that the institution is a permanent one capable of not only bringing happiness to two young people but also providing a delicate balance so that the family enjoys the fullness of life within the framework of what they called Dharma, the Hindu code of right conduct

This may sound like a newly discovered concept by modern psychologists but an ancient Hindu prince known as Yudhishtira revealed this “secret” about 4000 years ago. In an episode known as YakshaPrashna in the AranyaParva of the great epic, the Mahabharata. One of the questions theYaksha asked Yudhishtira was

“kimsvinmitramgrhesatah?” i.e. who is the friend of a householder?

To which the prince answered

“bhaaryaamitramgrhesatah,” i.e., the friend of a householder is his spouse.

 

“The Wife Is Half The Man

The Best Of Friend,

The Root Of The Three End Of Life,

And Of All That Will Help Him In The Other World

With A Wife A Man Does Mighty Dees

With A Wife A Man Find Courage

A Wife Is The Safest Refuge……………………..”

 

According to Hindus, therefore, the basis for marriage is friendship and such friendship is the understanding, the promise and the commitment that unites a man and a woman. With such authority, there is then no question about the role of a woman, her importance, her position in this equation that binds them together.

According to Hinduism, marriage between two souls is a very sacred affair that stretches beyond one life-time and may continue up toat least seven lives. According to Manu, the daughter is given in marriage only once and she remains wife of that person to whom she is given in marriage, for her whole life. Thus, the Hindu Marriage connotes the idea of permanence. Permanence is attributed to the Hindu marriage by the fact that it is essentially a sacrament, a Hindu Marriage is said to be a sacrament because the marital relation between the spouse are created not on account of any contract between the two but by virtue of a gift of the girl by her father to the bride-groom. The gift is holy and accompanied with the religious ceremony of saptapadi. Because, in the ceremony of saptapadi the bride and the groom hold hands and take seven steps together as husband and wife as they walk around Agni, the God of fire and pledge to each other their eternal friendship. Marriage is a religious injunction intended to fulfill religious duties and to achieve the higher ends of life, namely, dharma, artha, kama, and moksha. Marriage is essential because all the religious ceremonies and rites are to be performed by a Hindu in the companionship of his wife, otherwise they will not bear any fruit . Procreation of male offspring is one of the reasons behind marriage. Male issue was prized for it helped a Hindu to pay off pitririn, i.e. debt to his father. Also a Hindu achieves moksha only when upon his death his funeral rites are performed by his son. Thus, the Vedas declare “Endless are the world of those who have sons, there is no place for the man who is destitute of male offspring”

 

Evolution Of Live-In Relationship In India

India is a country, which is slowly opening its doors for western ideas and lifestyles and one of the most crucial episodes amongst it, is the concept of Live-in relationships. In ancient India, though the marriage was a general norm, the Hindu scriptures describe and admit the existence of premarital relationships as well. According to Manu, premarital relationships existed both in the Vedic period and afterwards, but was a rare occurrence . This concept of live-in relationship is not new in India; in ancient times it was known as maitri-karar in which a written agreement was made between the two opposite sex that they would live together as friends and look after each other.

Also, Gandharva marriage, i.e. one of the eight Hindu marriages, has incidents which are quite similar to that found in a live-in relationship . The concept of live-in-relationship is defined neither in dictionary nor in law. Live-in-relationship means a woman living with a man as husband and wife for a reasonable period, without marrying him. These relationships are called and stigmatized as socially ambiguous and sexually exploitative relationships.

“Married in haste, we repent at leisure”. The above line by William Congreve truly defines the mentality of the live in couples. The hectic lives of the metros don’t leave time for nurturing a family in its true sense. Now a days people are becoming more and more individualistic and career oriented. They spend less time at home and more time in offices.With more and more women going out for work, the nurturer of the family is not giving enough time for family and children. So actually why is there the need to go into marital bonding and forsake one’s liberty? Everyone likes a life free of tensions and responsibility. After working fornight shifts who want to get up early the next day to prepare children’s tiffin and make ready them for school? Whenever one thinks about live-in relationships the first question which comes in mind is, why couples believe in having such a relationship instead of legally, religiously and socially sanctioned marriage? There may be many answers to it such as-

1. Lifestyle:- In olden times, the lifestyle of an average Indian was such that a boy and a girl did not get much opportunity to interact with each other. Thus, the possibility of them entering into a live-in relationship was negligible. But today, a girl and a boy, either in an educational institution, or a workplace, or pub, a discotheque, etc., get ample opportunity to know and spend time with each other. This boosts the chances of them to enter into a live-in relationship.

2. Age of Marriage: – Earlier, the average age of marriage among Indians was quite low. A person was married at a very tender age and, therefore, there was really no chance for him/her to enter into a live-in relationship. But today, with the gradual increase in the age of marriage, there is abundant opportunity for a person to live-in.

3. Economic Independence: – Youngsters, especially in urban areas, are becoming more and more economically independent. Thus, there dependence on their respective families has considerably reduced, which in turn allows them to ignore the diktats of their families regarding their personal lives.

4. Away from home: – Many people, either for the purpose of education, job, etc., live away from their homes. Thus, they are not subject to the immediate control of their families. Also, the rent and other expenses in an urban area are quite unaffordable, which, if shared with someone, becomes bearable. These circumstances encourage the youngsters to enter into a live-in relationship.

5. Urbanization: – In the rural areas, every person is subject to strict social control; his conduct is always under the scrutiny of the fellow villagers. But as far as cities are concerned, there is no such control as no one is interested in the personal life of a person. Thus, there is ample freedom for a person to live as he likes.

6. Course, they cannot marry each other due to social hurdles. This is true in the case of a couple belonging to different religions, castes or classes, marriage between whom is still not approved by the society at large.

 

Legalization Of Live-In Relationship In India

At present there is no special law in India to deal with the concept of live-in relationships and its legality. However, the Courts in India, through their decisions in various cases, have laid down the law in respect of such relationships. Some of the landmark decisions of the courts in this regard are:-

 

1. Premarital sex and live-in not an offence:- The Fundamental right under Article 21 of the Constitution of India grants to all its citizens “right to life and personal liberty” which means that one is free to live the way one wants. Live in relationship may be immoral in the eyes of the conservative Indian society but it is not “illegal” in the eyes of law. In Payal Sharma v. Superintendent, Nari Niketan Kandari Vihar The Allahabad High Court has held that a lady of the age of majority has a right to go anywhere she wants and that both men and women can live together even without getting married. In Patel and others case , the Supreme Court of India held that live-in relation between two adults without a formal marriage cannot be construed as an offence. This stand was reiterated by the Supreme Court in the case Khushboo v. Kaniammal and another .

2. Presumption of Marriage: – Section 114, Indian Evidence Act, 1872, lays down that where independent evidence of solemnization of marriage is not available, it will be presumed to be a valid marriage by continuous cohabitation between the parties unless the contrary is proved. In Gokal v. Parvin , the Supreme Court held that continuous prolonged cohabitation raises a presumption in favour of marriage, and against concubinage.

3. Legitimacy of Children: – A necessary corollary of making a presumption in favour of a marriage is the presumption of legitimacy of child born out of such relationship.

In Radhika v. State of Madhya Pradesh it was held that in the case of a live-in relationship, not only does the law presume in favour of a valid marriage, but also it deems the child born out of such a relationship to be legitimate. The Court also held that such children will have the rights in their parent’s property.

The same approach was adopted by the Supreme Court in a recently delivered judgment in the case of Veluswamy v, D. patchiammal .

4. Maintenance: – The courts have also conferred to a woman in a live-in relationship the right to claim maintenance.

In Abhijit Bhikaseth Auti v. State of Maharashtra and others , the Supreme Court also observe that it is not necessary for woman to claim maintenance under section 125 of the Code of Criminal Procedure, 1973. A woman in a live-in relationship may also claim maintenance.

5. Application of the Domestic Violence Act, 2005:- The Domestic Violence Act is an Act enacted with the object of protecting women against Domestic Violence. The effect of Section 2(f) of the Act is that it brings within its ambit even the violence caused under a live-in relationship.

 

It is proposed that if a woman has been in a live-in-relationship for a reasonable period, she should enjoy the legal rights of the wife . The Committee also recommended the amendment of the definition of wife under Section 125 of the Cr.P.C (Code Of Criminal Procedure, 1973) so that a woman live-in-relationship can get the status of a wife. .

Reincarnation of Marriage

The judgments mentioned above had caused great furore and were subjected to severe public anger, they were seen as a step to demolish the culture and tradition of India and to encourage the western concept of live-in relationship. But few do realize that these judgments have acted not as an incentive to live-in relationship, but as a discouraging factor. An analysis shows that the characteristics of live-in relationship which attracts people towards it are lack of responsibility, freedom and lack of commitment. But the judgments of the courts in India have attached several responsibilities to the said relationship in the form of maintenance, presumption of marriage, legitimacy of children, etc. Thus, the legalization of live-in relationship defeats the very reason for which most urban and financially independent individual, especially youngsters of modern society, opt this as opposed to the institution of marriage. Attributing the incidents and consequences of marriage to live-in relationship, brings it ALMOST at par with marriage. Now, why would an ordinary prudent man opt for a live-in relationship, which is almost similar to marriage? He would rather go for marriage itself which involves stability, certainty and social recognition.

Thus, the courts in India, by their various landmark judgments, have re-instituted the institution of marriage. The live-in relationship in India has, to a considerable extent, become marriage with a different face.

Conclusion

“Chains do not hold a marriage together. It is threads, hundreds of tiny threads which sew people together through the years”.

Simone Signoret Need for the institution of marriage is inherent in every man. This fact is evident from the fact that the institution of marriage has evolved and is in existence in almost every civilized country. This need for marriage is rooted in the man’s urge for certainty and for achieving stability in life. Such stability and certainty can be achieved only through marriage. Therefore, whenever a new kind of relationship between a man and woman is innovated, it is bound to acquire the form and the traits of marriage. Same has been the case with live-in relationship; initially, it started of as something different from marriage, but gradually it has imbibed almost all the characteristics of a marriage.

ROLE OF LEGISLATURE AND JUDICIAL REVIEW OF LEGISLATIONS

SAMEER SHARMA

In this article I intend to discuss and deliberate upon two questions of constitutional and public importance. Firstly what is the scope of power of judicial review of legislations by the Apex court and High courts. Secondly, whether the legislations by the exercise of its legislative powers can pass a new law or amend an existing law in order to render ineffective a judgment or order of the court.

Before discussing the afore-mentioned issues, it is necessary to make a brief reference to the nature of the Indian constitution.

NATURE OF INDIAN CONSTITUTION

The Indian constitution is basically a federal constitution and is marked by the traditional characteristics of a federal system, namely supremacy of the constitution, division of powers between the union and the states, existence of an independent judiciary and a rigid procedure for amendment of the constitution.

The Indian constitution interestingly does not refer to the term judicial review or its limits. However the power of judicial review has been time and again interpreted by the apex court to include review of legislations, executive decisions has been even extended to judicial review of the exercise of the power of the president to issue a proclamation under Art. 356 of the constitution.

JUDICIAL REVIEW OF LEGISLATIONS:-

As mentioned herein before the power to ensure that a law passed by the legislature is in accordance with the provisions of the constitution, is vested only with the high courts and the supreme court and for this reason the judicial review of legislations becomes very relevant and it is further relevant so far conformity of the legislations with the provisions contained in part iii of the constitution is concerned.

The legal position in this respect was highlighted by the apex court in state of madras v. G.Row, AIR 1952 SC 196 in express terms. It was held “our constitution contains express provisions for judicial review of legislations as to its conformity with the constitution like as America, where the supreme court has assumed extensive powers of reviewing legislative acts under cover of the widely interpreted “due process” clause in the fifth and fourteenth amendments. As rightly held in G.Rows case the apex court has been conferred by the constitution the duty to act as the protector of the fundamental rights of the citizens and this power too is an inbuilt of the power of the judicial review.

Re-affirming its power to test the validity of legislations, the apex court in special reference no.1 of 1964 AIR 1965 SC 745 held “whether or not there is distinct and rigid separation of powers, there is no doubt that the constitution has entrusted the judiciary in the country the task of construing the provisions of the constitution and for the safeguarding the fundamental rights of the citizens. when a statute is challenged on the ground that it has been passed by legislature without authority or rights. It is for the courts to decide whether the law passed by the legislature is valid or not”.

Further pointing out the relevancy of the power of the judiciary to pronounce upon the validity of laws, the apex court in Minerva mills v. Union of india, AIR 1981 SC 1787 held that “our constitution is founded on a nice balance of power amongst the three organs of the state namely the executive, legislature and judiciary. It is the function of the judges nay their duty to pronounce upon the validity of laws. If the courts are totally deprived of that power the fundamental rights conferred upon the people will become a mere a document because rights without remedies is a writ in water.

A controlled constitution will become uncontrolled. The legal position regarding the power of supreme court and high courts to the judicial review the legislative actions was well decided with the decision of the 7 judges constitution bench of the apex court in L.Chandra kumar v. union of india, AIR 1997 SC 1925. In this case, the question arose regarding the constitutional validity of Art. 323(2)(d) and Art. 323(b)(3)(d) of the constitution, which exclude the jurisdiction of all courts except that of the supreme court under Art. 136 of the constitution, in respect of disputes and complaints referred in Art. 323 A(1) or 323 B (2) of the constitution.

On a perusal of the decisions referred herein before ,it becomes clear that the supreme court and the high courts have been vested with the power to test the constitutional validity of the legislations and this power is a part of the basic structure of the constitution. The courts not only see as to whether the legislative competence of the legislature concerned or not but also see whether impugned legislation has contravened any provision of the constitution or not.

OVERRULING A JUDICIAL DECISION BY A NEW LEGISLATION:-

The second question. As referred herein before, arise as to whether the legislature has the competence to enact a new law or amend an existing law so as to nullify or render ineffective a judgment of the court. Article 141 of the constitution provides that the law declared by the supreme court shall be binding on all courts within the territory of India. Article 141 therefore incorporates the principle of stare decisis. Further Article 144 of the constitution declares that all authorities civil and judicial in the territory of india shall act in aid of the supreme court.

By virtue of art. 144, the authorities have to act in the aid of the supreme court and not to disobey or overrule the decisions of the supreme court. Though art. 144 does not use the words executive or the legislature, however the term “authorities” referred to in the art. 144 is enough to point out the intention of the constitution framers that the organs of the state have to work in harmony with the supreme court and as such abide by its decisions.

In Keshvananda bharti v. state of kerala, AIR 1973 SC 1461 rule of law was held to be a part of basic structure of the constitution. The concept of rule of law has been interpreted by various authors in different concepts. But in my opinion, it means that everyone is bound by the constitution. The govt. or its instrumentalities cannot do anything which is either against the constitution or violates its basic structure.

In Municipal corporation of the city of Ahmedabad v. New shrock spg and wvg co. limited AIR 1970 SC 1292. Apex court observed that “no legislature in this country has the power to ask instrumentalities of the state to disobey or disregard the decisions given by courts”

The consistent thread that runs through all the decisions of the court is that the legislature cannot directly overrule the decision or make a direction as not binding on it but has power to make the decision was rendered, consistent with the law of the constitution and the legislature must have competence to do the same.

The case of People’s union for civil liberties v. union of india, AIR 2003 SC 2363 is one of the later cases which depict the zeal of the legislature to overrule and nullify the judgment delivered by the apex court. The brief facts were that the apex court in union of india v. association for democratic reforms AIR 2002 SC 2112 had given certain directions to the election commission to call for the information on affidavit from each candidate seeking to the parliament or a state legislature regarding the past antecedents of the candidate, pendency of criminal cases including convictions. Charges if any, educational qualifications of the candidate etc.

In order to render ineffective the aforesaid directions given by the apex court, the central govt, brought the Representation of peoples(amendment) ordinance 2002 which was later on repealed by the Representation of the people(third amendment) act 2002. Section 33b of the act in particular provided that notwithstanding anything contained in any judgment decree or order of any court or any direction issued by the election commission no candidate shall be liable to disclose or furnish any information in respect of his election, which is not required to be disclosed or furnished under this act or rules made.

CONCLUSION

A perusal of the decisions of the apex court referred hereinbefore leave no doubt that the legislature cannot overrule a decision of the court or render it ineffective or even direct its instrumentalities not to obey the order of the court. It can only completely alter the law on the basis of which the previous decision was given but it is also subject to two limitations. Firstly, it should be within the legislative competence of the legislature and secondly it should not infringe the provisions of the constitution and the fundamental rights in particular.

Lets take an example. A court of law passes an order directing the tenant to handover possession of the premises in question to the landlord within two months from the date of the order. In the meanwhile, the legislature in order to render ineffective the order of the court, amends the rent control act on the basis of which the order in question was by the court. Here the question arises in such a situation what will happen to the rule of law, which is one of the basic foundation of our democratic and constitutional setup.

Perhaps there can be no end to such legislation. However the judiciary being the protector of the rights of the people will continue to perform its obligations in spirit as people of our country has great regard for the judiciary.

Prostitution

Introduction

 

Prostitution is the act or practice of providing one’s body for sexual purpose to another person in return of payment. The person who carry out such activities are called prostitutes. Prostitution is often described as the oldest profession. Not surprisingly, the ethics of prostitution have often been debated. In general, most people claim that it is morally unacceptable. Yet, like all such practices, it continues to thrive.

 

However, as a researcher of jurisprudence, what interests me is not the last media frenzy about prostitution, but the ethics of the practice itself. Rather than take the usual approach of simply asserting it is immoral, I will consider the various plausible reasons as to why it should be considered immoral and also argue that, under certain conditions, it can be just as morally acceptable as other forms of work with the help of Kantian philosophy of liberalism.

 

In India, the Immoral Traffic Prevention Act (ITPA) is the only piece of legislation dealing with the crime of trafficking but it only considers trafficking as prostitution and is not in accordance with International Policies and Guidelines, including the Palermo Protocol of 2001, which India has signed. This is an unsatisfactory state of affairs because Article 23 of the Indian Constitution prohibits “traffic in human beings and all similar forms of forced labour”. Prostitution, the oldest profession on earth is not something which the Indian society today looks up to.

 

HISTORY

Prostitution was a part of daily life in Greece and represented the top level economic activities. It had been a practice in Armenia where the noblest families even gave their daughter to the service of God Acilisena. In Ancient India these girls were referred to as devadasi and were dedicated to gods. This practice later ritualized into prostitution where the girls were used as prostitutes to please the upper class people and were known as jogini. This ritual started after the fall of Buddhism in 6th century.

 

TRADITIONAL VIEW

In Kamasutra by Vatsayana prostitution was not considered disgraceful but was a noble profession where the prostitutes were prized by their lovers and could deny anyone at their will. She enjoyed a position of power. They were considered as women of high intelligence and manners by the Nawabs of Lucknow. They were appointed to impart training to their sons and daughters.

 

MODERN VIEW

In today’s world of commercialization the profession has become very callous, cruel and brutal. The profession which was earlier regarded as noble is now degraded just because of uncleanness of lust and ravage it has become a vulgar form of soul trade. There is a need to refer to the myths were the profession was regarded as noble and wake up the nation from the clutches of ignorance.

Present Legal Status Of Prostitution In India

 

The Law governing prostitution in India is Immoral Traffic (Prevention) Act which is a 1986 amendment to the primary law passed in 1950 {known as the Immoral Traffic (Suppression) Act}. The law does not criminalize prostitution per se but only organized form of prostitution is against the law. If a woman uses attributes of her body voluntarily and individually she goes unpunished. But the law prohibits/criminalize-

 

• Seduction/solicitation of customer

• Prostitution anywhere near a public place

• Publication of phone number of call girls

• Organized form of prostitution i.e. a brothel, pimps, Prostitution rings etc.

• A sex worker being below 18 years of age

• Procurement and trafficking of women

 

Position In Other Countries

 

Prostitution is legal with some restrictions in Canada, almost all of Europe including England, France, Wales and Denmark, most of South America including most of Mexico (often in special zones), Brazil, Israel (Tel Aviv is known as the brothel capital of the world), Australia, and many other countries. It is either legal or tolerated in most of Asia. Even Iran has “temporary wives”, which can be foronly a few hours. In 2003, New Zealand passed one of the most comprehensive decriminalisation acts, which even made street hookers legal.

 

IMMANUAL KANT – In this paper, I will examine the reasons for Kant’s view, and attempt to show that it is nonetheless possible to give an argument along Kantian lines in favour of prostitution.

Kant outlines four possible cases in which a decision is carried out in respect of duty:

 Case One involves actions that are contrary to duty (such as stealing);

 Case Two involves actions that are dutiful but done only because of fear of penalty or sanction (such as paying taxes);

 Case Three involves actions that accord with duty but which the agent is already inclined towards because it is pleasurable in some way (such as a labour of love); and

 Case Four involves actions that accord with duty but are contrary to inclination (such as not committing suicide, despite being in unbearable distress)

The matter of prostitution lies under case fourth where prostitutes perform their activities that are contrary to their penchant but still they do it just for the sake of sustainence i.e. they cannot commit suicide, despite being in unbearable distress.

 

For the past few months an argument has been raging on the possible legalization of prostitution in the country. The argument has taken different forms and has sadly been entertained by reasonable people amongst them medical practitioners, members of parliament and some academicians. At the heart of the argument are three issues.

 

1. About the value and sanctity of the human body ? – Is the human body naturally anything special that needs protecting or can be violated, sold in sex or slavey or lacerated in any way?

 

2. About our understanding of sex – Is sex an animal instinct which could be gratified on the basis of one’s Pula power?

 

3. What is our moral reference point or moral standard? On what basis do we determine wrong or right?

 

Is our moral standard ‘the ape-man’ theory of evolution; that we are merely on earth by chance, having come through evolution and having survived through that old-fashioned tired maxim ‘survival of the fittest’. Or our moral reference in philosophers like the humanist Rene Discartes with his declarative “I think, therefore I am”; David Hume; the agnostic, Immanuel Kant, Soren Kierkegaard, Friedrich Nietzshe, Bertrand Russell (whose life can be summarised by the word ‘contradition’), or Jean-Paul Sartre, the existentialist with his famous credo ‘Travel, polygamy and transparency’. Or do we turn to faith, Christianity, as a standard against which to live our lives?

Immmanuel Kant On Prostitution

 

-“Always recognize that human individuals are ends, and do not use them as means to your end”.

 

… to allow one’s person for profit to be used by another for the satisfaction of sexual desire, to make of oneself an Object of demand, is to dispose over oneself as over a thing and to make of oneself a thing on which another satisfies his appetite, just as he satisfies his hunger upon a steak. But since the inclination is directed towards one’s sex and not towards one’s humanity, it is clear that one thus partially sacrifices one’s humanity and thereby runs a moral risk. Human beings are, therefore, not entitled to offer themselves, for profit, as things for the use of others in the satisfaction of their sexual propensities.’ Immanuel Kant1

It would be hard to find a more complete condemnation of prostitution than the above quotation from the philosopher Immanuel Kant (1724-1804). For him, prostitution was the ultimate example of treating a human being as merely a means to an end, and was despicable (shameful) because it thereby placed a human being on the same footing as an animal.

In his writings on sex and marriage, Kant provided a seemingly traditional defence of monogamy – the only sexual relation that is morally acceptable is that which occurs between a married man and woman. However, the argument he gave for this differs tremendously from the natural law tradition that had predominated in Western thought.

For Kant, the foundation of ethics was his famous Categorical Imperative: it is always wrong to treat another person as merely a means to an end, rather than as an end-in-itself (which is to say, one must show proper respect for other persons). This is a secularized version of the socalled Golden Rule, to treat others as one wishes to be treated. But what is it that constitutes a ‘person’? For Kant, it is the possession of rationality. The ability to reason raises us above our passions, and allows us to act autonomously. We are not mere creatures of instinct. In respecting others, we are acknowledging the fact that they are fellow reasoning creatures, fully responsible for their actions. Anything that goes against reason should be suspect, since it lowers our status to that of non-reasoning animals, who are without moral worth.

What Kant feared most of all, because it was the prime disturber of reason, was sexuality. In his estimation, a sexual urge is the desire to possess possess another person. Those who engage in sexual acts for the sake of pleasure “make of humanity an instrument for the satisfaction of their lusts and inclinations, and dishonour it by placing it on a level with animal nature. Sexuality, therefore, exposes mankind to the danger of equality with the beasts.” Since morality can only pertain to rational creatures, such a lowering of status is the worst sort of degradation possible. One loses one’s moral sense when lust becomes dominant.

Kant was not noted for his turn of phrase – his style was usually a plodding one. But in writing about the dangers of giving in to sexual urges, he is positively eloquent: “Sexual love makes of the loved person an Object of appetite: as soon as that appetite has been stilled, the person is cast aside as one casts aside a lemon which has been sucked dry.”3

For Kant, sexual desire, in-and-of-itself, is potentially the cause of the deepest degradation. It can make a person no better than a beast. To treat another person as an object of desire is wrong. “This is the only case in which a human being is designed by nature as the Object of another’s enjoyment. Sexual desire is at the root of it: and that is why we are ashamed of it, and why all strict moralists, and those who had the pretensions to be regarded as saints, sought to suppress and extirpate it.”

One dishonours another person by focusing only upon his or her sexual attributes. It is the supreme case of treating another as merely a means to an end, the end being sexual gratification.

Yet such desires are extremely powerful, and for most people – especially non-philosophers – quite hard to control. What to do? Using the services of a paid professional reliever of sexual tension is one possibility, but it is one that Kant strictly forbids. Prostitution is impermissible for Kant, not because of the harm it might cause to society (he was not a consequentialist in his ethics), but because it treats a person as a commodity. Persons are not at their own disposal. They do not own themselves, because if they did, they would be a thing. “To let one’s person out on hire and to surrender it to another for the satisfaction of his sexual desire in return for money is the depth of infamy.”5 One would thereby be acquiescing in the act of co modification.

In Kant’s view, even mutual sexual satisfaction, rather than the selling of sexual services, would be morally impermissible, since it still treats a person as a thing. It involves showing concern for only a part of them, rather than for their personhood in its entirety. It shows a lack of regard for the other individual’s reasoning capabilities, as opposed to their sensual qualities. The only morally acceptable route for sexual expression would be through legal matrimony. Only marriage allows for a morally acceptable exchange of sexual pleasure. “The sole condition on which we are free to make use of our sexual desires depends upon the right to dispose over the person as a whole – over the welfare and happiness and generally over all the circumstances of that person.”

CONCLUSION

Author hereby agrees with Kant that objectification is morally unacceptable, but raises interesting questions about what this means. The notion of ‘respect’, she argues, is not the same for all people in our society – women are still often treated as less able to live autonomous existences, less able to function on their own. It is easier to objectify women as a whole, because the roles they are allowed to play in society are still far more restricted than those of men. Stock stereotypes ring more true when counterexamples are hard to find. Since their status is so different, the loss of respect has greater repercussions for women in general. Pornography is often pernicious because it perpetuates images of the so-called ‘fallen woman’. Garry writes: “This fall is possible, I believe, because the traditional ‘respect’ that men have had for women is not genuine, wholehearted respect for full-fledged human beings, but half-hearted respect for lesser beings, some of whom they feel the need to glorify and purify.”

If one accepts human sexuality as a natural and good aspect of life, rather than a degrading and bad aspect, it takes away much of the force of Kant’s argument against prostitution. Rather than looking upon sexual desires as flaws which place us on the level with beasts, they can be seen as drives that unite us all. Whatever our station in life, the libido is common property. Kant is opposed to treating humans as merely means to an end. But he does not hold that it is wrong in-and-of-itself to satisfy human needs. For example, one can fulfill the role of being a food server, and thereby help to alleviate hunger. It would be morally unacceptable to treat a waiter as merely a serving-thing. One should recognize his/her common humanity. But giving money to the waiter in recompense for services rendered involves two free agents mutually living up to the provisions of an agreed-upon transaction. In a similar fashion, sex workers provide a valuable service in alleviating the sexual hungers of their clients. One might object to this if one holds that only sex acts which lead to procreation are morally acceptable, but as was seen earlier, Kant did not ascribe to such a natural law line. Thus, if one decouples Kant’s repulsion about sexual acts from his overall contractual emphasis, a strong case can be made in favour of reciprocity in sexual relations, outside of a marriage contract.

While Kant’s lemon analogy seems to say a good deal about his own negative attitudes toward sexuality, when it comes to discussing the morality of prostitution, his emphasis on reciprocity and respect is still fruitful.

 

IMPLEMENTATION AND ENFORCEMENT OF RIGHT TO EDUCATION IN INDIA’

NEERAJ GAHLAWAT

Introduction

Illiteracy is our sin and shame and must be liquidated.

By Mahatma Gandhi

Education has an immense impact on the human society. One can safely assume that a person is not in the proper sense till he is educated. It trains the human mind to think and take the right decision. In other words, man becomes a rational animal when he is educated.

It is through education that knowledge and information is received and spread throughout the world. An uneducated person cannot read and write and hence he is closed to all the knowledge and wisdom he can gain through books and other mediums. In other words, he is shut off from the outside world. In contrast, an educated man lives in a room with all its windows open towards outside world. Without education, a man is so circumstanced he know not how to make best of himself. Therefore, for him the purpose of society is ab-initio frustrated.

Education is powerful because without it, early civilizations would have struggled to survive and thrive as a culture. It is important that adults trained the young of their society in the knowledge and skills they would need to master and eventually pass on. It is universally accepted that education empowers the people for the full development of human personality, strengthens the respect for human rights, and helps to overcome exploitations and traditional inequalities of caste, class and gender.

Without knowledge you can’t be informed nor can you truly understand the meaning of many topics. It is important to have knowledge, so you can pass your knowledge to the next generation. Education is important because it equips us with all that is needed to make our dreams come true. Education opens doors of brilliant career opportunities. It fetches better prospects in career and growth. It is a preparation for living in a better way in future with an ability to participate successfully in the modern economy and society. Education is empowerment for socio-economic mobility, an instrument for reducing socio-economic inequalities, and equipment to trigger growth and development.It is through education that knowledge and information is received and spread throughout the world.

There has been a paradigm shift in this sphere: from education as a transcendental and value to education to cost recovery system. The feature such as commodification of education, private sector’s dominance in higher education, and market-driven education flowing from world trade law stand juxtaposed to the fact that largest pool of illiterates is in India and high dropouts of students even at primary level here is owing to economic reasons. The linkage of right to education to right to dignified life, equality, freedom and cultural and minority right has made it highly intricate and the extent of regulations relating to it from different perspectives, quite complex.

The right to education originates from the apparent motion that it obligatory for the state to provide education to its citizens. The core of the right to education relates to its substance, which differs from education itself. Effective and transformative education should be the result of the exercise of the right toeducation, which is a universal human right. The right is about the entitlement to claim the substance of it; it relates to the possibility of demanding the right to education and making it justiciable.

The substance of the right to education is given in broad terms by international legislation but realmeaning is given to it as national legislators incorporate it. The process of incorporation is more important than the process of adhering to an international treaty because it is this incorporation that entitles people to demand for their right to education.

The importance of education cannot be neglected by any nation. And in today’s world, the role of education has become even more vital. It is an absolute necessity for economic and social development of any nation. In the context of a democratic form of the government like ours, education is at once a social and political necessity. Even several decades ago, our leaders harped upon universal primary education as a desideration for national progress. It is rather sad than in this great land of ours where knowledge first lit its torch and where the human mind soared to the highest pinnacle of wisdom, the percentage of illiteracy should be appalling. Today, the foremost need to be satisfied by our education is, therefore, the eradication of illiteracy which persists in a depressing measure. A true democracy is one where education is universal and the nation and know-how to govern themselves.

Education is undoubtedly a human right which has been transformed into a “luxury” instead of a right in many places. Signs of that can be seen through words and images of student journalists who report on thecondition of education worldwide for the Education for All consortia and observe that hindrances in education range from lack of schools in Mozambique to issues that affect curricula formulation and not living up to the prestige of a previous era, like in the Russian Federation system. In India the situation is no different as many people were excluded from their right to education for very many years. . It is rather sad that in this great land of ours where knowledge first lit its torch and where the human mind soared to the highest pinnacle of wisdom, the percentage of illiteracy should be appalling. Today, the foremost need to be satisfied by our education is, therefore, the eradication of illiteracy which persists in a depressing measure. A true democracy is one where education is universal and where people understand what is good for them and the nation and know-how to govern themselves.

In this background, “Implementation and Enforcement of Right to Education in India”attempts to analytical study of right to education in India. This project is divided into four chapters. First chapter concentrate on the historical prospective of Indian education system which deals with the demand for free education in pre-independence period. The second chapter deals with various committees and national policies formed in relation to fulfilment of the demand of free and compulsory education. The third chapter concentrate on the constitutional provisions and judicial trends that followed. The fourth chapter concentrates on the administrative steps taken by the government for the enforcement and implementation of free and compulsory education in India. This chapter also shows the some lacunas in programmes and gives some data about present situations.This project also suggests some ideas to make programmes effective.

Chapter 1

Education System: Historical Prospective

 

1.1. Demand for Free and Compulsory Education in the Pre Constitutional Era

 

Education has its functionalism in almost all sphere of life. Its signification can never be marginalized. An educated society prepares the present generation for a bright future and enables the individual to galvanize the capacity of collective. More than 2300 years back Chanakya had said “that mother and that father are enemies, who do not give education to their children”. In the recent past Nelson Mandela had proclaimed, “Education is most powerful weapon which you can to change the world”

There is disagreement amongst scholars regarding the origin and nature of the education system in ancient India. Some of them hold the view that it is difficult to speak of ancient Indian education with certainty, as our information is based on the documents of ‘unequal value and unequal date.’ Nevertheless, it may be stated that education in India has been notorious for not being socially inclusive. Till the 19th century, it was largely considered a privilege restricted to persons at the higher end of the caste or class system. History is replete with examples of caste, class and gender-based discrimination in imparting education. Education was the sole privilege of the priestly castes (Brahmins) primarily because of the religious basis for the content of education, coupled with the elitist medium of instruction that was chose to impart the knowledge. Admission to Gurukulas or Ashramas was not open to all. People from lower castes, and socalled ‘shudras’ (untouchables), in particular, were barred from receiving education. Several learned Brahmins started Pathasalas (schools) in important towns where they received patronage. The Muslim rulers of the Indian sub-continent also did not consider education as a function of the State. It was perceived as a branch of religion and therefore entrusted to learned theologianscalled ‘Ulemas’. Therefore, in ancient and medieval India, education was intertwined with religion. From the location of Gurukulas to excluding sections of the society from accessineducation, the system of education was clearly not accessible to all persons.

The discovery of the sea route to India, in 1498, influenced the course of development of education in the Indian sub-continent. Although many scholars have commended the British policy of introducing modern education, it was not a spontaneous benevolent act. The progress in education was facilitated with a view to serving their vested interests, i.e., to train Indians as clerks, managers and other subordinate workers to staff their vast politico-administrative machinery. However, education of the ‘Indian masses’ was largely neglected, and by the beginning of nineteenth century, it was in shambles. The demand for education in India can be traced back to the early stages of the freedom struggle in British India. It subsequently became an integral part of the freedom struggle. The Indian National Congress fought valiantly for the expansion of elementary education and literacy, in general, and in rural India, in particular. The first law on compulsory education was introduced by the State of Baroda in 1906. This law provided for compulsory education for boys and girls in the age groups of 7–12 years and 7–10 years respectively. The Legislative Council of Bombay was the first amongst the Provinces to adopt a law on compulsory education. Gradually, other Provinces followed suit as control over elementary education was transferred to Indian Ministers under the Government of India Act, 1919. However, even though Provincial Legislatures had greater control and autonomy in enacting laws, progress in universalizing education was poor due to lack of control over resources.

In 1937, at the All India National Conference on Education held at Wardha, Gandhi mooted the idea of self-supporting ‘basic education’ for a period of seven years through vocational and manual training. This concept of self-support was floated in order to counter the Government’s constant excuse of lack of resources. The plan was to not only educate children through vocational training/manual training by choosing a particular handicraft, but also to simultaneously use the income generated from the sale of such handicrafts to partly finance basic education. Furthermore, education was supposed to be in the mother tongue of the pupils with Hindustani as a compulsory subject.

Despite the consistent demand for free and compulsory education during the freedom struggle, at the time of drafting the Constitution, there was no unanimous view that the citizens of India should have a right to education, let alone a fundamental right. The Constitution Assembly Debates reveal that an amendment was moved to alter the draft Article relating to FCE, by removing the term entitled to ensure that it was merely a non-justifiable policy directive in the Constitution. Therefore FCE made its way into the Constitution as a directive principle of State Policy under the former Article 45, whereby States were required to ensure that free and compulsory education was provided to all children till the age of fourteen.

The effects of above mentioned initiatives had come in forms of various committees and national policies on education. In next chapter I have mentioned about such committees and policies.

 

Chapter 2

 Policies and Committees on Education

 

As the demand and supply rules always present in society, after being felt, the great importance and demand of education for the development of new independent India, Government of India moved forward in this direction and made various efforts to make India educated.

 

2.1Kothari Commission (1964)

In view of the important rote of education in the national development and in building up a truly democratic society the Government considered it necessary to survey and examines the entire field of education in order to realize a well-balanced, integrated and adequate system of national education capable of making a powerful contribution to all aspects of national life. To achieve these objectives speedily, the Government of India in October 1964 set up an Education Commission, under Resolution of July 14, 1964.

The Commission in particular was to advise the government on the national pattern of education and on the general policies for the development of education at all stages-ranging from the primary to post-graduate stage and in all its aspects besides examining a host of educational problems in their social and economic context. The Commission was, however, not to examine legal and medical education.

The Commission in its report in 1964-66 recommended the establishment of a Common School System for all children irrespective of their class, caste, religious or linguistic background. The commission stated that in order to fulfil this purpose, neighbourhood schools should be established in all localities. It also recognized that this was the only way we can promote social harmony and equality of education. This commission given much importance to CommonSchool System because they said that by common school system will eradicate many problems and give common platform to every individual.

NEED FOR APPOINTMENT OF COMMISSION:

1) Need for a comprehensive policy of education in spite no. of educationcommittees after independence, satisfactory progress would not beachieved.

2) Need for detailed study even though a good deal of expansion ofeducation facilities took place, it was at the expanse of quality.

3) Need to emphasize role of people in national development.Tomake people aware that they have a share in the nationaldevelopment along with the government.

4) Need for overview of educational development.To create more integration between various parts and consider it as awhole not as fragments.

5) Need for positive approach to the status of teacher.The teacher community had been neglected suffering many hardships requiring a positiveapproach to the problem.

2.2 The National Policy on Education, (1968)

The National Policy of 1968 marked a significant step in the history of education in post-Independence India. It aimed to promote national progress, a sense of common citizenship and culture, and to strengthen national integration. It laid stress on the need for a radical reconstruction of the education system, to improve its quality at all stages, and gave much greater attention to science and technology, the cultivation of moral values and a closer relation between education and the life of the people.

After the adoption of the 1968 Policy, there has been considerable expansion in educational facilities all over the country at all levels. More than 9 % of the country’s rural habitations now have schooling facilities within a radius of one kilometer. There has been sizeable augmentation of facilities at other stages also. Perhaps the most notable development has been the acceptance of a common structure of education throughout the country and the introduction of the 1 +2+3 system by most States. In the school curricula, in addition to laying down a common scheme of studies for boys and girls, science and mathematics were incorporated as compulsory subjects and work experience assigned a place of importance.

A beginning was also made in restructuring of courses at the undergraduate level. Centers of Advanced Studies were set up for post-graduate education and research. And we have been able to meet our requirements of educated manpower.

While these achievements are impressive by themselves, the general formulations incorporated in the 1968 Policy did not, however, get translated into a detailed strategy of implementation, accompanied by the assignment of specific responsibilities and financial and organizational support. As a result, problems of access, quality, quantity, utility and financial outlay,accumulated to implement all the provision. Besides, a variety of new challenges and social needs make it imperative for the Government to formulate and implement a new Education Policy for the country.

 

2.3 The National Policy For Children, 1974

The National Policy for Children 1974 was founded on the conviction that child development programmes are necessary to ensure equality of opportunity to these children. It provides the framework for assigning priorities to different needs of children, and for responding to them in an integrated manner. Other policies, programmes and schemes for child development have been formulated, keeping in mind the objectives of this National Policy. The National Policy provides the framework for assigning priorities to different needs of children, and for responding to them in an integrated manner. Other policies, programmes and schemes for child development have been formulated, keeping in mind the objectives of this National Policy. The policy reaffirmed the constitutional provisions for adequate services to children, both before and after birth and through the period of growth to ensure their full physical, mental and social development.

Accordingly, the government is taking action to review the national and state legislation and bring it in line with the provisions of the Convention. The aim of this policy also was to inserts much new provision relating this child policy in constitution. “It shall be the policy of the State to provide adequate services to the children, both before and after birth and though the period of growth, to ensure their full physical, mental and social development. The State shall progressively increase the scope of such services so that, within a reasonable time, all children in the country enjoy optimum conditions for their Balance growth. ”

In particular, the following measures shall be adopted towards the attainment of these objectivesthat all children shall be covered by a comprehensive health programmes, programmes shall beimplemented to provide nutrition services with the object of removing deficiencies in the diet ofchildren, programmes will be undertaken for the general improvement of the health and for thecare, nutrition and nutrition education of expectant and nursing mothers.

The State shall take steps to provide free and compulsory education for all children up to the age of fourteen for which time-bound programmes will be drawn up consistent with the availability of resources. Special efforts will be made to reduce the prevailing wastage and stagnation in schools, particularly in the case of girls and children of the weaker sections of the society. The programmes of informal education for pre-school children from such sections will also be taken up.

This policy not only given facilities regarding the education but also tried to eliminate the restriction in social life of children by protecting against neglect, cruelty and exploitation and no child under 14 years shall be permitted to be engaged in any hazardous occupation or be made to undertake heavy work. This policy also emphasis on amendment of existing laws to be amended so that in all legal disputes whether between parents or institutions, the interest of children are given paramount consideration.

 

2.4 National Policy on Education, (1986)

The National Policy on Higher Education (1986 ) translated the vision of Radhakrishnan Commission and Kothari Commission in five main goals for higher education, as enumerated below; which include Greater Access, Equal Access (or Equity), Quality and Excellence, Relevance and Value Based Education.

1. Greater Access requires an enhancement in the education institutional capacity to provide opportunities to all who deserve and desire higher education.

2. Equity involves fair access to the poor and the socially disadvantaged groups.

3. Quality and Excellence involve provision of education by accepted standard so that students receive available knowledge of the highest standard and help them to enhancetheir human resource capabilities.

4. Relevance involves promotion of education so as to develop human resources keeping pace with the changing economic, social and cultural development of the country;

 

2.5 165th Law Commission Report, 1998

 • Advocated legislation of a central Act for providing free and compulsory education without waiting for any amendment in the Constitution of India.

• Suggested to include private unaided institutions in the scheme of free and compulsoryEducation.

• Advocated dispensing with the tuition fee, providing free text books, free uniform, freelunch, etc. whatever necessary.

• Interpreted compulsion as:

• Compulsion on state

• Compulsion on parents

• Compulsion on society

 

As the effects of all above mentioned committees and policies is the 86th amendment of constitution which added a new clause in Art. 21 and created new clause, Art. 21-A. Apart form all these things, the Constitution of India holds the spirit of education in itself from very beginning. In next chapter we will see, how the Constitution of India explain this spirit.

 

Chapter 3

 Constitution Provisions and Judicial Trends

 

Making India educated, judiciary of India has explained the concept of education , as the constitution holds in itself, by delivering various decisions. In this chapter, we finds how judiciary explained all these things.

 

3.1 Identification of Right to Education with reference to Part IV and Art. 21 and 14

 

The extent of right to education as a component of right to life is determined with reference to State’s duty under Part IV of the Constitution and by applying Art.21. While primary and secondary education is inevitable for the right to life, attainment of higher education is not indispensible for human dignity. The opportunity for higher learning depends upon individual aptitude and capacity of student.

Under the ICSECR, primary education is directed to be compulsory and free for all, whereas concerning higher education, equal accessibility base on individual capacity is assured. Universal Declaration of Human Rights also makes such distinction.

According to Article 45 of the constitution, “The State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years”. While this duty isirrespective of State’s economic ability, under Art.41 State’s duty of making effective provision for securing right to education is “within the limits of its economic capacity and development”. Since positive rights of life are carved out in case law by gathering the values of Part IV, the above dichotomy necessarily influenced stage-wise differentiation in recognizing right to education as a component of right to life.

Initially, the Three Judges Bench of the Supreme Court Mohini Jain ruled that right to education at all levels is concomitant to the fundamental rights observed, “The State is under a constitutional mandate to provide educational institutions at all levels for the benefit of citizens”. But the Five Judges Bench of Supreme Court in Unnikrishnan v State of A.P. overruled the principle laid down in Mohini Jain’s case. The majority in Unnikrishnan viewed that content of right was to be determined in the light of Directive Principles, and so understood it meant that (a) every child/citizen of this country has a right to free education until he completes the age of fourteen years and (b) after a child/citizen completes 14 years, his right to education is circumscribed by the limits of economic capacity of the State and its development.

A landmark development in the matter of right to primary and secondary education is the passing and incorporation of the Constitution (Eighty-sixth Amendment) Act 2002. It inserted a new Article 21-A that states, “ The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may by the law, determine.” It substituted Article 45: “The State shall endeavour to provide early childhood care and education for all children until they complete the age of six years”. A new fundamental duties was added in Art.51-A, so that it shall be the duty of every citizen of India “who is a parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years”. The interactions of provisions in Arts.19(1)(g), 26(1), 29(1) and 30(1) vis-à-vis Art.21-A would means that State has power and duty to ensure right to education under Art.21-A by imposing reasonable obligation upon private educational institutions to realize the objective of compulsory education.

3.2 Right to education and rights under Arts.19, 21, 26, 29 and 30

 

Right to education has a relation of mutual assistance with other positive rights of life and with various liberties. The links of educational rights with freedom under Art.19 are also significant. In Santosh Kumar , while ordering that Sanskrit should also be included as one of the optional languages at the level of secondary education, the Supreme Court replied on the aspects of freedom of speech and conversation of culture.

The role of freedom of association in forming educational institutions is given judicial recognition in D.A.V. College and Unnikrishnan. In Unnikrishnan, the Court ruled that Professional Education Intitutions could be established by registered societies only. The role played by educational associations at lower levels of education is also important.

About Art. 26(a) as the basis for educational right, the Supreme Court in Bramhachari Siddeshwar ruled that religious denominations could establish institutions for charitable purpose subject to limitations prescribed under Art. 26(1). The TMA Pai Foundation judgment made significant contribution in this sphere by holding, “The right to establish maintain educational institutions may also be sourced to Art. 26(a), which grants, in positive terms, the right to every religious denomination of any section thereof to establish and maintain institutions for religious and charitable purpose, subject to public order, health and morality. Education is a recognized head of charity. Therefore, religious denominations or sections thereof, which do not fall within the special categories carved out in Art. 29(1) and 30(1), have the right to establish and maintain religious and educational institutions”. This enables the religious denominations of majority religious community also to set up any educational institution.

The rights of any section of every citizens, under Art. 29(1) having distinct language, script or culture of their own to conserve the same entitles them to establish and maintain educational institution for this purpose. The right of religious and linguistic minorities to establish and administer educational institutions for their choice under Art. 30(1) also provides a basis and opportunity for education.

 

3.3 Right to Education and Right to Equality

While the Supreme Court, in its recent judgment in the Mohini Jain v Karnataka case, may be faulted on both doctrinal and practical grounds for its use of article 21 of the Constitution for articulating the right to education, its indictment of the capitation fee system has not come a day too soon. THE Supreme Court has recently declared that right to education was a fundamental right and that the charging of capitation fee was arbitrary, unfair and therefore violative of the fundamental right to equality contained in article 14 of the Constitution. Since the decision of the Supreme Court is the law of the land, the above decision has created a storm in the educational world. The immediate reactions have been hostile to the decision. Usual comments such as that the court has gone too far or that the decision is impractical have already come in. While we share the court’s agony over the immoral practice of capitation fee in the new medical and engineering colleges, some wider propositions enunciated therein need careful examination. The purpose of this article is to examine the three leading propositions, namely

(1) That every person has the right to education as part of his right to live with dignity included in article 21 of the Constitution;

(2) That the practice of capitation fee is violative of the guarantee of equality enshrined in article 14 of the Constitution; and

(3) That the state is under a constitutional mandate to provide educational institutions at all levels for the benefit of its citizens.

Some of the outstanding development and application of right to equality in India have been in the domain of educational right. Brown v. Board of Education decision on progressive desegregation has expanded the scope of right to education. In India, in addition to general provisions like Art. 14 and 15(1), the principle of non-discrimination in the matter of admission to State funded educational institutions, is laid down in Art. 29(2). Quashing of a Communal GO, which had provided for compartmentalised treatment of caste-based claims in admission to educational institutions, was the starting point set in Smt. Champakam Dorairajan . The subsequent insertion of Art. 15(4) for enabling special provision for SEBC, SC and ST was to give a dimension of substantive equality to the disadvantaged sections of the society. In Ajay Hasia v. Khalid Mujib, right to equality could be claimed in the matter of admission to engineering college run by a registered society with the assistance of state fund. In Vibhu Kapoor v. Council of I.S.C. Examination , arbitrary treatment of students by educational institutions could be remedied by invoking Art. 14 and 12.

3.4 Right to Education Under Article 21-A

 

The Constitution (Eighty-sixth Amendment) Act 2002, created a history in field of education as a landmark of right to education in India. It inserted a new Article 21-A that states, “The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may by the law, determine.” The Constitution of India is a directive Principle contained in Art. 45, has made a provision for free and compulsory education for all children upto the age of fourteen years within ten years of promulgation of Constitution. We would not achieve this goal even after fifty years of adoption of the provision. But the right to education under Art. 21-A will give required momentum to compulsory education to children upto age of fourteen. The right to education under this article would cover primary as well as secondary education and petitioner can claim the benefit of Part III as well. After the insertion of Art.21-A, every child upto the age of fourteen has a right to compulsory education and under Art.45 State is under the duty provide this compulsory education to every child upto age of fourteen. But in Unnikrishnan v State of A.P. wherein it was held that free education until the child completes 14 years is a fundamental right and after the completion of 14 years, his right to education is circumscribed by the limits of the economic conditions of State and its development. Recently it was held that to improve education, various State Government grant aid to educational institutions and by large teachers of aided private schools deserve to be treated on a par with teachers of Government Institution to the extent possible especially when Art. 21-A makes education a fundamental right.

As we find that in Mohini Jain Case and in Unnikrishnan Case , the judiciary explained the right to education. The judicial activism in this direction played a vital role. The effects of all activism is in form of the Right of Children to Free and Compulsory Education Act, 2009. The Government of India has started various scheme and plans to make every child educated. Next chapter we will discuss all these things in detail.

Chapter 4

 Administrative Steps and Efforts towards Education

4.1 The Right of Children to Free and Compulsory Education Act, 2009

“I beg to place the following resolution before the council for its consideration.…the state should accept in this country the same responsibility in regard to mass education that the government of most civilized countries are already discharging and that a well-considered scheme should be drawn up and adhered to till it is carried out.. The well-being of millions upon millions of children who are waiting to be brought under the influence education depends upon it…”

 

The above words are part of the resolution which Gopal Krishna Gokhale moved in the Imperial Legislative Council on 18th march, 1910 for seeking provision of ‘Free and Compulsory Primary Education” in India.

If Gopal Krishna Gokhle, one of the greatest sons of India, would have been alive today, he would have been the happiest person to see his dream of ‘Right to Education’ for the children of the country come true. It was he who, a hundred years ago, urged the Imperial Legislative Assembly confer such a right on Indian children. That goal has been realized a century later.

The present Act has its history in the drafting of the Indian constitution at the time of Independencebut is more specifically to the Constitutional Amendment that included the Article 21A in the Indian constitution making Education a fundamental Right. This amendment, however, specified the need for a legislation to describe the mode of implementation of the same which necessitated the drafting of a separate Education Bill. The rough draft of the bill was composed in year 2005. It received much opposition due to its mandatory provision to provide 25% reservation for disadvantaged children in private schools. The sub-committee of the Central Advisory Board of Education which prepared the draft Bill held this provision as a significant prerequisite for creating a democratic and egalitarian society. Indian Law commission had initially proposed 50% reservation for disadvantaged students in private schools. The Government has finally come over all the odds and given effect to the Right to Education Act. The very first step toward the achievement of right to education as fundamental right is enactment of the Right of Children to Free and Compulsory Education Act, 2009. This Act holds some specific features for the making Shakshar Bharat. On 1st April, India joined an elite group of countries which gives high regard to the fundamental rights of its citizens. It was a historic step making a law which promises education a fundamental right of every child come into force. The Right of Children to Free and Compulsory Education Act, 2009 will do well to the millions of children who are aspiring to contribute to their countries development. The right to education is inserted under the garb of right to life covered under article 21A of the constitution of India. Article 21 over the years, has pushed its legal boundaries to incorporate all the rights which are basic to the dignified enjoyment of life. Right to education is one peculiar right which is concomitant to other fundamental rights under ‘Right to Life’.

The salient features of the Right of Children for Free and Compulsory Education act are-

1. Free and compulsory education to all children of India in the six to 14 age group;

2. No child shall be held back, expelled, or required to pass a board examination until completion of elementary education;

3. A child above six years of age has not been admitted in any school or though admitted, could not complete his or her elementary education, then, he or she shall be admitted in a class appropriate to his or her age; Provided that where a child is directly admitted in a class appropriate to his or her age, then, he or she shall, in order to be at par with others, have a right to receive special training, in such manner, and within such timelimits, as may be prescribed: Provided further that a child so admitted to elementary education shall be entitled to free education till completion of elementary education even after fourteen years.

4. Proof of age for admission: For the purposes of admission to elementary education. The age of a child shall be determined on the basis of the birth certificate issued in accordance with the provisions of the Births. Deaths and Marriages Registration Act,1856 or on the basis of such other document, as may be prescribed. No child shall be denied admission in a school for lack of age proof;

5. A child who completes elementary education shall be awarded a certificate;

6. Calls for a fixed student-teacher ratio;

7. Provides for 25 percent reservation for economically disadvantaged communities in admission to Class One in all private schools;

8. Mandates improvement in quality of education;

9. School teachers will need adequate professional degree within five years or else will lose job;

10. School infrastructure (where there is problem) to be improved in three years, else recognition cancelled;

11. Financial burden will be shared between state and central government.

 

In a very brief, the Act provides for neighbourhood schools within reach, with no school refusing admission to any child. It also provides for adequate number of qualified teachers to maintain a ratio of one teacher for every 30 students. The schools have to train all its teachers within 5 years. They have to ensure proper infrastructure, which includes a playground, library, adequatenumber of classrooms, toilets, barriers free access for physically challenged children and drinking water facilities within three years. 75% members of the school management committees will comprise parents of the students who will monitor the functioning of the schools and utilization of grants. The school management Committees or the local authorities will identify the out of school children and admit them to standards appropriate to their age, after giving them proper training.

 

4.2 Sarva Shiksha Abhiyan

The SSA programme is an endeavour to provide an opportunity for improving human capabilities of all children, through the provision of community-owned quality education in a mission mode. The Sarva Shiksha Abhiyan had been set with specific targets. These are:

• All children in school, Education Guarantee Centre, Alternate School or ‘Back-to-School’ camp by 2003.

• All children complete five years of primary schooling by 2007.

• Children complete eight years of elementary schooling by 2010.

• Focus on elementary education of satisfactory quality with emphasis on education for life.

• Bridge all gender and social category gaps at the primary stage by 2007 and at the elementary education level by 2010.

• Universal retention by 2010.

 More recently, the Government of India has launched in 2001 Sarva Shiksha Abhiyan(SSA) a flagship pogramme in partnership with the state government to cover the entire country and address the needs of 192 million children in 1.1 million habitations. The SSA is an extensive scheme to universalize elementary education through district based, decentralized specific planning and implementation strategy by community ownership of the school system. The scheme subsumes all other major governmental educational interventions of the entire country. The SSA is to provide useful and relevant elementary education for children in the 6-14 age groups by 2010.

The SSA focused mainly on alternative Schooling, Children with special needs, Community mobilization, Girls Education, Quality of Elementary Education. The SSA is based on the premise that financing of elementary education interventions has to be sustainable. This calls for a long-term perspective on financial partnership between the Central and the State governments.

The programmes call for community ownership of school-based interventions through effective decentralization. This will be augmented by involvement of women’s group and members of Panchayati Raj institutions. The Programmed will have a community based monitoring system.

The Educational Management Information System will correlate school level data with community-based information from micro planning and surveys . Besides this, every school will be encouraged to share all information with the community, including grants receive. A notice board would be put up in every school for this purpose. SSA lays a special thrust on making education at the elementary level useful and relevant for children by improving the curriculum, child-centered activities and effective teaching learning strategies. It also recognized the critical and central role of teachers and advocates a focus on their development needs, setting up of block Resource centers, cluster resource centers, recruitment of qualified teachers, opportunities for teacher development through participation in curriculum-related material development, focus on classroom process and exposure visits for teachers are all designed to develop the human resource among teachers. As per the its framework, each district will prepare a District Elementary Education Plan reflecting all the investment being made andrequired in the elementary education sector, with a holistic and convergent approach. There will be a Perspective Plan that will give a framework of activities over a longer time frame to achieve aim. There will also be an Annual Work Plan and Budget that will list the prioritized activities tobe carried out in that year. The Perspective Plan will also be a dynamic document subject to constant improvement in the course of programmed implementation. SSA played an important role in making waking individual regard child education as well as child right. It affects the every level of administration to control and make aware of children welfare, right, interest etc.Though the Sarva Shiksha Abhiyan is being administered through government and government aided schools, some private unaided schools are also actively involved in contributing towards universal elementary education. Recently, the government entered into anagreement with the World Bank(External website that opens in a new window) for assistance to the tune of US $ 600 million to fund the second phase of the Sarva Shiksha Abhiyan.

Sarva Shiksha Abhiyan is a valuable endeavour of the Government of India, in the universalization of elementary education, which strives to help citizens to realise the importance of elementary education. Social justice and equity are by themselves a strong argument for providing basic education for all. Provision of basic education also improves the standard of living, especially with regard to life expectancy, infant mortality and nutritional status of children.

 

4.3 Rashtriya Madhyamik Shiksha Abhiyan

Rashtriya Madhyamik Shiksha Abhiyan(RMSA) is aimed at expanding and improving the standards of secondary education classes’ eighth to tenth. The RMSA would also take secondary education to every corner of the country by ensuring a secondary school within a radius of five km for every neighbourhood. RMSA which is the most recent initiative of Government of India to achieve the goal of universalization of secondary education. The SSA program set up by the government to bring elementary education to millions of children has been successful to a large extent, and has thus created a need for strengthening secondary education infrastructure across the country. The HRD Ministry has taken note of this, and now plans to implement a secondary education scheme called RMSA during the 11th plan. “With the successful implementation of the Sarva Shiksha Abhiyan, a large number of students are passing out from upper primary classes creating a huge demand for secondary education,” the HRD Ministry said.

1. To ensure that all secondary schools have physical facilities, staffs and supplies at leastaccording to the prescribed standards through financial support in case of Government/Local Body and Government aided schools, and appropriate regulatory mechanism in thecase of other schools,

2. To improve access to secondary schooling to all young persons according to normsthrough proximate location efficient and safe transport arrangements and residentialfacilities, depending on local circumstances including open schooling. However in hilly and difficult areas, these norms can be relaxed. Preferably residential schools may be setup in such areas.

3. To ensure that no child is deprived of secondary education of satisfactory quality due togender, socio-economic, disability and other barriers

4. To improve quality of secondary education resulting in enhanced intellectual, social andCultural learning.

5. To ensure that all students pursuing secondary education receive education of goodquality.

6. Achievement of the above objectives would also, inter-alia, signify substantial progressin the direction of the Common School System.

 

4.4 Mid-Day Meal

The Mid-day Meal Scheme is the popular name for school meal programme in India which started in the 1960s.It involves provision of lunch free of cost to school-children on all working days. The key objectives of the programme are: protecting children from classroom hunger, increasing school enrolment and attendance, improved socialization among children belonging to all castes, addressing malnutrition, and social empowerment through provision of employment to women. The scheme has a long history especially in the state of Tamil Nadu introduced statewide by the then Chief MinisterK. Kamaraj in 1960s and later expanded by M. G. Ramachandran government in 1982 has been adopted by most of the states in India after a landmark direction by the Supreme Court of India on November 28, 2001. The success of this scheme is illustrated by the tremendous increase in the school participation and completion rates in the state of Tamil Nadu.

12 crore (120 million) children are so far covered under the Mid-day Meal Scheme, which is the largest school lunch programme in the world. Allocation for this programme has been enhanced from Rs 3010 crore to Rs 4813 crore (Rs 48 billion 1.3 million) in 2006-2007.

Various orders and memos from the Ministry of the Rural Development during the last fifteen years have not been enough to feed the primary school children, specially the target group-the needy and the malnourished, through the National Programme for Nutritional Support to Primary Education (NP-NSPE), popularly known as Mid-Day Meal Programme(MDM).

The MDM is the world’s largest school feeding programme reaching out to about 12 crore children in over 9.50 lakh schools/EGS centers across the country.

MDM in schools has had a long history in India. In 1925, a MDM Programme was introduced for disadvantaged children in Madras Municipal Corporation. By the mid-1980s three States viz. Gujarat, Kerala and Tamil Nadu and the UT of Pondicherry had universalized a cooked Mid-Day Meal Programme with their own resources for children studying at the primary stage By 1990-91 the number of States implementing the mid-day meal programme with their own resources on a universal or a large scale had increased to twelve states.

The objectives of the MDM scheme are:

• Improving the nutritional status of children in classes I-V in Government, Local Body and Government aided schools, and EGS and AIE centres.

• Encouraging poor children, belonging to disadvantaged sections, to attend school more regularly and help them concentrate on classroom activities.

• Providing nutritional support to children of primary stage in drought affected areas during summer vacation.

With a view to enhancing enrollment, retention and attendance and simultaneously improving nutritional levels among children, theNP-NSPE was launched as a Centrally Sponsored Scheme on 15th August 1995, initially in 2408 blocks in the country. By the year 1997-98 the NP-NSPE was introduced in all blocks of the country. It was further extended in 2002 to cover not only children in classes I -V of government, government aided and local body schools, but also children studying in EGS and AIE centers. Central Assistance under the scheme consisted of free supply of food grains @ 100 grams per child per school day, and subsidy for transportation of food grains up to a maximum of Rs 50 per quintal.

In September 2004 the scheme was revised to provide cooked mid-day meal with 300 calories and 8-12 grams of protein to all children studying in classes I – V in Government and aided schools and EGS/ AIE centers. In addition to free supply of food grains, the revised scheme provided Central Assistance for (a) Cooking cost @ Re 1 per child per school day, (b) Transport subsidy was raised from the earlier maximum of Rs 50 per quintal to Rs. 100 per quintal for special category states, and Rs 75 per quintal for other states, (c) Management, monitoring and evaluation costs @ 2% of the cost of food grains, transport subsidy and cooking assistance, (d) Provision of mid-day meal during summer vacation in drought affected areas. In July 2006 the scheme was further revised to provide assistance for cooking cost at the rate of (a) Rs 1.80 per child/school day for States in the North Eastern Region, provided the NER States contribute Rs 0.20 per child/school day, and (b) Rs 1.50 per child/ school day for other States and UTs, provided that these States and UTs contribute Rs 0.50 per child/school day.

In October 2007, the scheme has been further revised to cover children in upper primary (classes VI to VIII) initially in 3479 Educationally Backwards Blocks (EBBs). Around 1.7 crore upper primary children were included by this expansion of the scheme. From 2008-09 i.e w.e.f 1st April, 2008, the programme covers all children studying in Government, Local Body and Government-aided primary and upper primary schools and the EGS/AIE centres of all areas across the country. The calorific value of a mid-day meal at upper primary stage has been fixed at a minimum of 700 calories and 20 grams of protein by providing 150 grams of food grains (rice/wheat) per child/school day. 8.41 crore Primary students and 3.36 crore Upper Primary Students i.e. a total of 11.77 crore students are estimated to be benefited from MDM Scheme during 2009-10.

Today, MDM scheme is serving primary & upper primary school children in entire country.

Apart from these programmes, Government of India has been initiated National Programme for Education of Girls at Elementary Education. It is being implemented in educationally backward blocks, where the level of rural female literacy is less than the national average and the gender GAP is more than the national average. About 3286 educationally backward blocks are covered under the scheme in 25 states.

In April 2001 People’s Union for Civil Liberties (Rajasthan) initiated the now famous right to food litigation. This public interest litigation has covered a large range of issues relating to right to food, but the best known intervention by the court is on mid-day meals. In one of its many direction in the litigation the Supreme Court directed the government to fully implement its scheme of providing cooked meals to all children in primary schools. This landmark direction converted the mid-day meal scheme into a legal entitlement, the violation of which can be taken up in the court of law. The direction and further follow-up by the Supreme Court has been a major instrument in universalizing the scheme.

4.5 Kasturba Gandhi Balika Vidyalaya

The Government of India launched a scheme called Kasturba Gandhi Balika Vidyalaya (KGBV) with the objective to ensure access and quality education to the girls of disadvantaged communities by setting up residential schools with boarding facilities at elementary level. In Bihar, till today, 385 KGBV centres have been set up since October 2005 and are functioning to serve the educational needs of approximately 35,938 girls from the disadvantaged communities.

The KGBV scheme is to be implemented in coordination with other existing schemes, and in Bihar, it is being implemented through the Mahila Samakhya (MS) Society in the districts where MS exists, and other districts by Bihar Education Project Council in collaboration with local NGOs/VSS.

The scheme is applicable in those identified Educationally Backward Blocks (EBBs) where, as per census data of 2001, the rural female literacy is below the national average, i.e. 46.58% and gender gap in literacy is more than the national average i.e. 21.7%. Among these blocks, residential schools are to be set up in areas with:

 Concentration of tribal population, with low female literacy and / or a large number of girls out of school;

 Concentration of SC, OBC and minority populations, with low female literacy and/or a large number of girls out of school;

 Areas with low female literacy; or

 Areas with a large number of small-scattered habitations that do not qualify for a school.

Objectives of KGBV

The objective of KGBV is to ensure access and quality education to the girls of disadvantaged groups of society by setting up residential schools with boarding facilities atelementary level as gender disparities still persist in rural areas and among disadvantaged communities.

Strategies

495 KGBV will be opened in a phased manner.

Such residential schools will be set up only in those backward blocks that do not have residential schools for elementary education of girls under any other scheme including that of Ministry of Social Justice & Empowerment and Ministry of Tribal Affairs.

In the state, all the KGBV centres follow the same strategy, which is to provide the enrolled girls with hostel facilities, remedial teaching and life skills. While they learn upper primary level education curriculum at formal schools during schools’ operation period, the KGBV centres provide them with remedial teachers who support them to cope with the learning at schools and also facilitate them to gain life skills, ranging from critical thinking skills to bicycle riding. The KGBV centres that are managed by Mahila Samakhya are following the same functioning structure with the Mahila Shikshan Kendra, residential bridge course programme of Mahila Samakhya. The girls are divided into three groups based on their academic achievement, and being supported by the teachers based on their levels, and they are provided with empowerment programme following Jagjagi manual, vocational training, karate practice, yoga etc, all of which try to aim the empowerment and development of the girls in holistic nature.

 

Components of the scheme

i. Setting up of residential schools where there are a minimum of 50 girls predominantly from the SC, ST and minority communities available to study in the school at the elementary level. The number can be more than 50 depending on the number of eligible girls.

ii. To provide necessary infrastructure for these schools

iii. To prepare and procure necessary teaching learning material and aids for the schools

iv. To put in place appropriate systems to provide necessary academic support and for evaluation and monitoring

v. To motivate and prepare the girls and their families to send them to residential school

vi. At the primary level the emphasis will be on the slightly older girls who are out of school and were unable to complete primary schools (10+). However, in difficult areas (migratory populations, scattered habitations that do not qualify for primary/ upper primary schools) younger girls can also be targeted

vii. At the upper primary level, emphasis will be on girls, especially, adolescent girls who are unable to go to regular schools In view of the targeted nature of the scheme, 75% girls from SC, ST, OBC or minority communities would be accorded priority for enrolment in such residential schools and only thereafter, 25% girls from families below poverty line. Established NGOs and other non-profit making bodies will be involved in the running of the schools, wherever possible. These residential schools can also be adopted by the corporate groups. Separate guidelines are being issued in the matter

The National Literacy Mission has been launched recently as Saakshar Bharat in which at least 7 crore non-illiterates will be made literate to achieve 80% literacy and to reduce gender disparity in literacy from 21% to 10%. 365 districts in the country, with adult female literacy rate 50% or less, have been identified for the implementation of Saakshar Bharat.

Though all these plans are working well, but there are so many instance where many inconsistencies and lacunas are present, because nothing is absolute and perfect in this universe.

 

4.6 Lacunas in Programmes

 

The RTE Model Rules under RTE Act, 2009 have finalized in February 2010 provide guidelines to be followed by the states to implement the RTE Act. Some of these rules, however, need to be reassessed in order to maximize the chances for success in their implementation.

There is provision mentioned under RTE such as, “No child shall be held back, expelled, or required to pass a board examination until completion of elementary education”, this very provision is very bad in itself. As without obtaining proper ability and qualification, no child can understand in his next class. It will create similar effect of illiteracy and it may be possible that if he/she is not able to understand to what is going on, may create mental agony.

Second where a child above six years of age has not been admitted in any school and if such child is admitted in class appropriate to his age, it will create similar effect as the first one.

The Model Rules hardly provide any details on the implementation of the 25 per cent reservation in private schools. There are many unanswered questions such as;

1. How are weaker and disadvantaged sections defined and verified?

2. How will the government select these students for entry level class?

3. What will be the mechanism for reimbursement to private schools?

4. How will the government monitor the whole process?

5. Would the admission lottery be conducted by neighborhood or by entire village/town/city?

6. What would happen if some of these students need to change school in higher classes?

The reimbursement to private unaided schools for the 25 per cent quota should be calculated not only on the basis of the recurring expenditure in government schools but should also include thefixed or capital expenditures with due allowance for depreciation of assets and interest costs including other costs related to elementary education at all levels of the State Government.

The actual position of Mid Meal Programme is also not very good. There are so many incidents and news about insufficient quality of foods/meal given to children. Various scams involving Mid-Day Meal Scheme have been unearthed since it was started.

In January 2006, the Delhi Police unearthed a scam in the Mid-Day Meal Scheme. In December 2005, the police had seized eight truckloads (2,760 sacks) of rice meant for primary schoolchildren being carried from Food Corporation of India (FCI) godowns in Bulandshahr District of UP to North Delhi. When the police detained the trucks, the drivers claimed that the rice was being brought all the way to Delhi to be cleaned at a factory. However, according to the guidelines, the rice has to be taken directly from FCI godown to the school or village concerned. Later it was found that the rice was being siphoned off by a UP-based NGO, Bharatiya Manav Kalyan Parishad (BMKP), in connivance with the government officials.

In November 2006, the residents of Pembong village under the Mim tea estate (around 30 km from Darjeeling), accused a group of teachers of embezzling mid-day meals. In a written complaint, the residents claimed that students at the primary school had not got midday meal for the past 18 months.

In December 2006, The Times of India reported a scam involving government schools that siphon off foodgrains under the mid-day meal scheme by faking attendance. The modus operandi of the schools was simple—the attendance register would exaggerate the number of students enrolled in the class. The additional students would not exist—they were “enrolled” to get additional foodgrains which were pocketed by the school staff. The scam was exposed, when P Asha Kumari, an assistant teacher at the government model primary school, Jakkur, in Yelahanka acted as a whistleblower. She informed the Lok Ayukta, who conducted a probe and indicted four persons for misappropriation. The whistleblower was harassed by the school staff and requested a transfer. She was transferred to a government primary school at Cholanayakahalli, where she again found the same modus operandi being used to siphon off the foodgrains. She again complained to the Lok Ayukta, who issued notice to the school.

Another instance is, that in April, 2010 in Pune more than 70 children – most of them aged between six and 13 – were hospitalized on Friday after having lunch under the mid-day meal scheme at their school at Bopodi, which is run by the PuneMunicipal Corporation (PMC). Shockingly, dead insects, flies and even tiny pieces of magnets were found in the food served to the children. PMCschool board chairman Sangeeta Tiwari, after visiting the school,said that”The khichadi (rice and daal preparation) was foul-smelling We were shocked to seethe quality of the food”.

 

Despite the success of the program, child hunger as a problem persists in India. According to current statistics, 42.5% of the children under 5 are underweight. This is due to simple reasons such as not using iodized salt. “India is home to the world’s largest food insecure population, with more than 200 million people who are hungry,” India State Hunger Index (ISHI) said, adding that the country’s poor performance is driven by its high levels of child under-nutrition and poor calorie count. “Its rates of child malnutrition is higher than most countries in Sub Saharan Africa,” it noted. A report released as part of the 2009 Global Hunger Index ranks India at 65 out of 84 countries. The 2008 report says that India has more people suffering hunger – a figure above 200 million – than any other country in the world, it says. The report also says “improving child nutrition is of utmost urgency in most Indian states”.

A Citizen’s Review Report (7th Jan, 2008) on “India’s Progress on the MDGs” showed that 55% of Muslims have never attended school compared to national average of 41% (rural); In Bihar 86% of enrolled children drop-out by Standard VI. 99% Dalit children study in Public schools & inadequate facilities and infrastructure as major problem for access to health & education. Whether SSA is performing well but the corruption is also there. The funds are misused.

The total budget for ‘SSA’ stands at Rs.131 billion and the scheme’s operation has come under severe flak from India’s official auditor, the Comptroller and Auditor General (CAG). Out of Rs 8004.71-crore allotted for the development work of “Elementary Education” and “SSA”, only Rs 2,324.99 crore was spent through record. For rest of the money spent on the development work there no records available & Human Resource Department is clueless about rest of the money. It means rest of the money was simply siphoned off. In this Gujarat and Rajasthan governments come first in misusing the funds! Despite the success of the program, child hunger as a problem persists in India. According to current statistics, 42.5% of the children under 5 are underweight. This is due to simple reasons such as not using iodized salt. “India is home to the world’s largest food insecure population, with more than 200 million people who are hungry,” India State Hunger Index (ISHI) said, adding that the country’s poor performance is driven by its high levels of child under-nutrition and poor calorie count. “Its rates of child malnutrition is higher than most countries in Sub-Saharan Africa,” it noted. A report released as part of the 2009 Global Hunger Index ranks India at 65 out of 84 countries. The 2008 report says that India has more people suffering hunger – a figure above 200 million – than any other country in the world, it says. The report also says “improving child nutrition is of utmost urgency in most Indian states”

Child labour is also a main problem. According to an article published in “Nyaya Deep” by Justice Ajit Prakash Shah :-

ALL INDIA

1. Census 2001- 5,79,841 children in the age group of 0-4 years are engaged in household activities in India.

2. Census 2001- 13 million child labourers in age group of 5-14 years i.e. children who are economically active.

3. NSSO’s 61st Report (2004-05)- estimated child labour in India at 8.6 million.

4. “Nowhere children” (i.e. children who are neither in school nor working)- 75 million children who are ‘nowhere’.

5. Education Statistics provided by MHRD, number of children who are out of school during 1997-98 to 2004-05 is 6.55 crores.

6. Proportion of out of school children in the 6-13 age group, computed on the basis of door to door annual surveys of teachers, is reported to about 3.5% (about 75 lakh children) in 2006-07 from 6.94% in September 2005.

 

 

 

IN DELHI

1. Dropout rate is 69.06%

2. In absolute numbers, there are 1.5 million children who are drop outs or who have never been sent to school. However, these children are not counted when calculating thenumbers of ‘out of school’ children. Therefore, the estimate of the Education Department of ‘out of school’ children remains at 54,220.

3. 80% of Class V who pass out of MCD schools do not know how to read and write their names.

4. Only 14% of students who enter government school in Class I make it to Class X.

5. It is estimated that 25%-30% of children drop out between classes I to V.

 

The standards of the Government, municipal schools are appalling. Apart from the inadequacy of infrastructure, there is shocking incidents of absenteeism and neglect on the part of many teachers in Government schools. The school inspection system has practically broken down in many parts in India. Another disturbing element is that that the teachers in Government schools are forced to engage in variety of Governmental works like dise-dine census, elections to local authorities, state legislatures and Parliament and disaster relief duties.

 

 

 

 

 

Conclusion

 

In the context of globalisation, education assumes greater meaning. Greatness of a nation should not be measured by its ranking in global economic order, but by its ability to provide quality education. The last two decade have shown enormous improvement in the literacy scene in the country as reflected by the average literacy figures. Education is perhaps the most vital requirement for inclusive growth, empowering individual and society, opening up opportunities and promoting true public participation in the development process. It is an important factor that fuels both social change and economic growth.

How much education does India need, and for what purpose? We can readily agree that universal good quality basic education is a requisite and moral requirement of all modernsocieties, for the sake of social equity, cultural values, and economic functionality. India is actively pushing forward with its agenda for revamping and restructuring education in the country. It is submitted that though the judiciary has made education as a fundamental right yet it is for the State to secure it for all people. It is beyond any doubt that education is of fundamental significance to the life of an individual and the nation.

We have seen in this paper Right to Education is now a Fundamental Right for all children in the age group of 6 to 14 years. In simple word, it means that the Government will be responsible for providing education to every child up to the eight standards, free of cost, irrespective of class and gender. Part III of the Constitution of India gives all force to every child to get free and compulsory education through Art.21, and insertion of Art.21-A by 86th Amendment is also a landmark in this respect. Thanks to scheme like SSA and MDM Scheme, which are providing almost all necessary requirements to the ‘Future of India’ Enrolment rates in schools have gone up, as the number of schools is rising through these scheme. The progress rate in rural literacy is also rising through the initiative of SSA. The SSA, initiated to universalize quality education, has brought about positive changes by increasing accountability of schools to the community through greater involvement of village education committees and parent-teacher associations. In primary schools especially enrolment and attendance of girls is increasing. The MDM Scheme is helping in taking care of nutritional needs of the students. This is not only affecting positively the health of poor students but also improving learning outcomes by ending ‘school hunger’.

Despite everything is going upward in the right direction, there are so many instance as we have seen in the 5th chapter, though SSA is performing well, corruption is also involved, funds are misused. The quality of foods in the MDM Scheme is not so good.

Calories and nutrients in MDM are insufficient. There is also news that children are more interested in meal only not in education. The shortage of teachers is one of biggest problem in implementation of such schemes, and teachers involved in schemes are less experienced and untrained. Child labour is also a major problem.

However, realization of the objective of ‘Education to All’ is not going to be very easy- not when the school system in the country, especially those rural areas continue to be plagued by problems of poor infrastructure, shortage of teachers, their lack of training motivation besides poverty and livelihood issues that are responsible for the huge drop out of rates. It is estimated that there is a shortage of nearly five lakh teachers, while about three lakh of them are untrained at the elementary school stage. Over 50% of schools have a student teacher ratio much poorer than the 1:30 prescribed under the RTE Act. About 46% schools do not have toilets for girls, which is another reason why parents do not send girl children to schools.

Though, the programmes are implemented in right directions and there are some inconsistency regarding implementation, I want to suggest some idea for better results and strengthening inclusive education.

 

 

 

 

 

 

 

 

Suggestions

Here are some of my (not so complete) ideas for effectiveness of Right to Education:

1. Compulsory free education should be made available till Class XII

The state and central governments should completely absorb the cost of providing free education till 12th standard to every child, irrespective of caste, religion and economic status. This should cover not just school fees, but also free books, food if necessary, uniform clothing and even a place to stay if the parents cannot afford that to their children. Those with money can always opt for their favourite private school, and feed their own children. Alternately, some rich may decide to send their children to the govt. schools.

2. Govt. schools should be run by private entities/entrepreneurs.It is very doubtful if the government can manage hiring qualified teachers and provide quality education to children. Like in the USA, the government can opt for building the schools and make them available to private companies on a long-term lease, based on auction. The organization that comes up with the lowest bid and agrees to maintain the best quality education would be chosen to run each school in each locality.

3. There should be some amendments in the Right of Children to Free and Compulsory Education Act, 2009 as it is provisioned that “no child shall No child shall be held back, expelled, or required to pass a board examination until completion of elementary education” because without having proper ability and knowledge, no child will able to survive in next class.

4. In villages the Panchayat members can play important role in promoting education. The village education committee should not be an ad hoc project arrangement and should be permanent.

5. There should be a teacher and parent interaction because a frequent parent and teacher interaction will enhance student enrolment and attendance rate.

6. The incentives like books, uniforms etc. available to the students must be made at the beginning of session.

7. The quality of MDM needs to be improved, which will attract children of the weaker sections of the society.

8. Village monitoring committees must be formulated so that they will monitor the enrolment and student absenteeism.

9. More Acts like Mahatma Gandhi National Rural Employment Guarantee Act should be started because only those parents who employed think about not to employ their children in any labour work.

10. The goal of 100% female education can be achieved by creating community awareness for girls education at all levels.

11. Improvement in the infrastructure like availability of water, sanitation and toilets in schools should be done on priority basis.

12. Propertraining for teachers and staff should be provided.

13. Training for teachers and staff at the residential schools will be coordinated by the District Institutes of Educational Training, Block Resource Centers and the Mahila Samakhya Resource Groups.

14. All education above higher secondary school level should be primarily dealt with by private entities.

15. If some state governments wish, they can run colleges, but it should be unnecessary. Students should be offered lenient education loans at very low interest rates. These loans are liable to be paid only after the students finish their education and find a job of their own.

16. That is, free education until higher secondary; but paid-for education after that. Those who can’t afford to pay for this higher education get low-cost and lenient loans. This kind of comfortable educational loans are made available to students in USA.

Though the state has the primary obligation to provide education for all children but non-governmental organizations and other civil society partners can make a vital contribution to education by mobilizing public demand and expanding participation. So, the government needs to build effective partnerships with all organizations and institutions that have an impact on children’s education.

I do not claim that these suggestions, if implemented, will remove all problems we have in our education sector. However I am hopeful that they can alleviate the problem considerably.

 

 

 

Bibliography

 

Books, Journals, Articles,Websites

 

1. Diksit S S, 1966, ‘Nationalism and Indian Education’, Sterling Publications, Jullunder.

2. M. P. Jain, ‘Indian Constitutional Law’, 6th Ed., Laxis Nexis Butterworth Wadhwa.

3. Jagdish Swarup, ‘Constitution of India’, 2nd Ed., Modern Law Publications.

4. H.M. Seervai, ‘Constitutional Law of India’ 4th Ed., Vol.2, Universal Law Publication.

5. V.N. Sukla, ‘Constitution of India’ 11th Ed., Eastern Book Company, Lucknow.

6. Kanta Maitra Pandit Lakshmi, 1995, ‘Constitution Assembly Debates’, Volume 7, Universal Publications, NewDelhi,

7. Mukerji S N, 1966, ‘History of Education in India: Modern Period’ Acharya Book Depot, Baroda.

8. Naik J P, 1975, ‘Equality, Quality and Quantity, The Elusive Triangle in Indian Education’, Allied Publisher, New Delhi.

9. Nurullah and Naik J P, 1943, ‘A History of Education in India’, Macmillan, Bombay.

10. Siqueira T. N, 1952, ‘The Education of India’, Oxford University Press, Bombay.

11. Kurukshetra, A Journal On Rural Development.

12. Sumeet Malik, Supreme Educational Institutional Cases, 8th Ed. Eastern Book Company, Lucknow.

13. http://www.education.nic.in/cd50years/g/W/16/0W160401.htm

14. www.education.nic.in/cd50years/y/3P/45/3P450301.htm

15. http://www.education.nic.in/cd50years/g/52/4U/524U0101.htm

16. http://www.education.nic.in/ssa/ssa_1.asp

17. http://www.indg.in/primary-education/policiesandschemes/the-national-policy-on-children-1974

18. http://india.gov.in/spotlight/spotlight_archive.php?id=31

19. http://www.niua.org/Publications/newsletter/uf_english_apr-jun07.pdf

20. http://blog.insightyv.com/?p=1137

21. http://timesofindia.indiatimes.com/city/pune/Mid-day-meal-sends-70-schoolkids-to-hospital/articleshow/6208423.cms.

22. http://www.education.nic.in/ssa/ssa_1.asp