Tribal laws in India and tribal conventions on rights of indigenous people worldwide


India’s population includes nearly one hundred million tribal people. These numbers are matched only by the remarkable diversity of India’s tribes. The two main regions of tribal settlement are the country’s north-eastern states bordering China and Burma, and the highlands and plains of its central and southern regions. The latter is home to more than 80 per cent of the tribes, which differ from the north-eastern tribes in ethnicity and in having experienced greater “intrusion of the Indian mainstream and of the pan- Indian model of the state, society, economy and culture.” There are also differences in the extent to which the tribes interact with non-tribal communities. While the north-eastern tribes are usually isolated communities, the tribes in peninsular India may at times coexist with non-tribal people. Despite some regional variation, the tribes share many traits, including living “in relative geographical isolation,” and being “relatively more homogeny” and “more self-contained than the non-tribal social groups.”Consequently, several tensions (both perceptible and obscure) pervade relations between tribes and non-tribes, on the one hand, and the tribes and the State, on the other. The conventional, and largely accepted, solution is to balance the dichotomy between assimilation of tribal peoples and their independent identity, and delineate the contours of a national policy that would allow them to preserve their way of life without compromising development.

 Although relatively simple to capture as a concept, India has struggled to maintain the balance in practice. The most common problems relate to recognizing that the tribes have a right to autonomy and not merely decentralized administration; that they have a right to seek justice within their own traditional or customary laws; and that they have a right to own and exploit the natural resources in their habitat. These issues are addressed in the Constitution of India and through tribal-people-specific statutes, but there are considerable differences in the way the north eastern and peninsular tribes are treated in the Indian legal system. The distinction in the law is based on the two criteria that had guided the colonial British Indian government in determining the degree of self-government that the tribes would exercise: (a) whether the tribe had the ability to manage its own affairs, and (b) whether the tribal region in question had a significant non-tribal population. Judged by these two criteria, the north-eastern tribes—who are also isolated but seen to be more ‘socially advanced’—have been given considerable autonomy under Constitution, while the tribes in the rest of the country have been placed under the aegis of provincial governors. This arrangement has been codified in the Constitution’s Fifth Schedule for tribes in peninsular India, and the Sixth Schedule for the north eastern tribes. The separate systems were approved by the Constituent Assembly formed at the time of independence after receiving recommendations that the distinct ‘community structures’ and ‘attitudes’ of the tribes in the two regions could not be treated in a common law. Though an overwhelming majority of India’s tribal people inhabit the fifth schedule areas, they were only recently introduced to decentralization when the Indian Parliament legislated the Panchayat (Extension to Scheduled Areas) Act, 1996 (or PESA) exclusively for these areas. PESA mandated the states to devolve certain political, administrative and fiscal powers to local governments elected by the communities (whether tribal or non-tribal). PESA did not amend the Fifth Schedule, however. Instead, it sought to secure the participation of the tribal communities through limited self government, expecting this arrangement to be better suited to their ‘level of advancement’. After a decade, it is apparent that PESA is clearly not achieving that objective. On the contrary, blatant violation of tribal interests and the reluctance (in some cases, sheer procrastination) of the state administrations to cede authority have often compelled tribes in the Fifth Schedule areas to reassert their identity and rights violently. Yet, there has never been a serious debate about alternative schemes for governing the tribal regions in peninsular India, even though various developments in the past few years—the creation of two new states, Jharkhand and Chhattisgarh, in 2000 through tribal political movements, the soon-to-be introduced revision of the National Tribal Policy, and the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act passed in December 2006, which grants tribes some measure of ownership in forest lands and produce for the first time—emphasize that tribal rights are increasingly figuring as a prominent national concern.

A Review of PESA: Tribal Laws and the Impairment of Tribal Rights in a Decentralized Government

Even though PESA is projected as legislation transforming tribal representation in Fifth Schedule areas, the tribes feel as much “culturally deprived and economically robbed” as under colonial rule. Neither PESA in the last decade, nor the Fifth Schedule before it, has helped the tribal communities “acquire the status and dignity of viable and responsive people’s bodies,” as Parliament had intended. Tribal local governments are often ignored in development plans and the benefits of any actual development “rarely percolate down to the local tribes,” which are “subordinated to outsiders, both economically and culturally.” PESA and the Fifth Schedule have also not prevented large corporations from gaining “control over the natural resources which constituted the life-support systems of the tribal communities;” neither have they made the tribes prosperous from the mineral-rich land on which they live. In fact, the tribes have “gradually lost control over community resources such as forests” to both settlers and the State; and one author would go so far as to equate non-tribal acquisitions with tribal displacement.Deceit and the active connivance of state employees with non-tribal communities is another debilitating factor reversing, in this case, the benefits of land reform legislation. Shankar’s study of tribal lands in the northern state of Uttar Pradesh revealed a nexus between traditionally influential nontribal landowners and corrupt government officials. The latter exercised their discretionary powers to favour non-tribes by transferring lands over which tribal communities may have had a valid claim. Even in a tribal majority state like Jharkhand in the north, the tribes are the worst affected in the population since the state government’s mining operations and hydroelectric power projects exploit natural resources in the resource-rich tribal areas, thus making the tribes “outsiders in their own land.”Faced with this onslaught, many tribes have resisted settlers, the government and private enterprises, and sought to reassert their identity. For instance, in the Bengal region The Kamatapur tribal movement has cited neglect, exploitation, and discrimination, and demanded a separate state. Tribes in the neighbouring state of Orissa have demanded a prohibition on private consortiums that intend to mine bauxite from one of the most richly endowed regions in India. Similarly, in the south, Kerala’s tribal population has recently begun to defend its rights by banding together in various political groups at the state and local community levels in order to compel the administration to review land alienation, poverty, and exploitation by private enterprises. It is far too easy to dismiss these incidents as mere consequences of “misplaced development strategies” and lack of interest among state administrations. The critics of tribal governance in India see the dangers in an extremely narrow compass, criticizing provisions in PESA as “impracticable” or the states as legislatively ignorant. In sum, they believe that good civil administration alone will assuage tribal woes. To begin with, PESA only marginally altered the power balance between state governments and the tribes because of ineffectual participation by the former, and the “general tendency at the state level to monopolize power rather than share power with people at large.” This apathetic attitude has manifested itself in two forms. First, the majority of the states with tribal populations procrastinated in their decentralization programs. Although all states with Scheduled Areas have now enforced PESA, their past dilatory performance has led to the risk of delays in future amendments necessary to reflect changed circumstances.

Second, when they did legislate, the states either ignored tribal “customary law, social and religious practices and traditional management practices of community resources” or enacted incomplete laws.

The Tribal Struggle to Cope with Imposed Laws

Contrary to PESA’s guarantees that state laws would respect tribal customs and traditions, the Act has debased the tribal traditions of self-governance. The propensity to violate tribal norms is not only a product of sub national apathy, but also the outcome of a statutory scheme that compels the tribes to adopt non-tribal concepts. By promoting the system of local government prescribed for non-tribal communities in Part IX of the Constitution,the Indian Parliament has instantly abolished centuries-old systems of Indigenous governance.

The abrupt shift from traditional institutions to alien concepts of elected representatives and Panchayats has resulted in “very low” tribal participation and an underutilization of the institutions.Our country is home to the largest population of indigenous peoples of any country in the world. Roughly a quarter of the world’s indigenous population – around 80 million people – are scattered across India, their numbers a staggering diversity of ethnicities, cultures and socio­economic situations. They range from some of the last uncontacted indigenous communities in the world, like the Sentinelese of the Andamans, to some of the largest, such as the Gondsand Santhals of central India. They include not only communities who live under conditions of extreme destitution, but also communities with social indicators well above the national average.But across circumstances and areas, like other indigenous communities around the world, India’s indigenous peoples do share one characteristic – social, political and economic marginalisation.

In recognition of this fact and reflecting more than a century and a half of continuous struggles by indigenous people, India has a panoply of laws, policies and Constitutional provisions aimed at protecting the rights of such communities. Yet India is also distinguished by the extreme reluctance of the government to acknowledge or accept the international framework for such protections, embodied primarily in International Labour Organization (ILO) Convention No. 169 on Indigenous and Tribal Peoples, 1989 and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), 2007. While India is a signatory to ILO Convention No. 107 on Indigenous and Tribal Populations (the predecessor to Convention 169) and voted in favour of the UNDRIP, it has adamantly insisted that its own indigenous peoples cannot claim status or protection under these laws. The government rejects the very term ‘indigenous peoples’, insisting that all Indians are indigenous, and is particularly hostile to any reference to the rights of indigenous people to autonomy, self-governance or self-determination. This is despite the fact that India’s own laws provide for varying degrees of such protection – in some cases, far reaching – to certain communities.

The Indian policy and legal framework on indigenous peoples’ rights through the lens, values the spirit of international law. Part I of the report describes the social and political situation of indigenous communities in India, while Part II examines the policy and legal framework on specific areas of indigenous peoples’ rights. The report is primarily focused on the extent to which the Indian political and legal situation conforms to the principles of equity, self-governance and justice that underlie the international instruments.We find that on all three fronts, India falls far short of international standards on indigenous peoples’ rights. The seemingly impressive range of legal and policy instruments that exists in Indian law for indigenous peoples’ rights is vitiated by one fundamental flaw – the Indian state’s reluctance to respect the political rights of indigenous peoples and the subsequent widespread violations of these.

Who Are Indigenous People And What Makes Them Different?

There does not seem to be one definitive definition of indigenous people, but generally indigenous people are those that have historically belonged to a particular region or country, before its colonization or transformation into a nation state, and may have different—often unique—cultural, linguistic, traditional, and other characteristics to those of the dominant culture of that region or state. (For more details, see this fact sheet from the United Nations Permanent Forum on Indigenous Issues (UNPFII).)

In some parts of the world, they are very few indigenous people, while in other parts, they may number into the hundreds of thousands, even millions. Over the years, many groups of people have been wiped out, either by diseases of colonizing peoples, or through policies of extermination.Those indigenous societies that remain today are predominantly subsistence-based (i.e. farming or hunting for food for immediate use), and non-urbanized, sometimes nomadic. Some people have been critical of indigenous peoples’ treatment of the environment, noting examples such as the deforestation of Easter Island or the disappearance of large animals from parts of America and Australia caused by native people.

However, others have argued that more generally, many indigenous people, for decades—even centuries—have accumulated important knowledge and traditions that allow them to work with nature rather than destroy it, because they are dependent on it and thus have a sense of interdependence.

In other parts of the world, such as India, Brazil, Thailand, and Malaysia, multinational companies have been accused of participating in “biopiracy” whereby biological resources used by communities openly for generations (decades, centuries, or even millennia in some cases) have been patented away, leaving the local people unable to use their own local plants and other resources.For other indigenous people, logging, dam projects and other activities threaten ways of life, sometimes leading to conflict.

TheUnited Nations Permanent Forum on Indigenous Issues (UNPFII) notes:

Indigenous peoples around the world have sought recognition of their identities, their ways of life and their right to traditional lands, territories and natural resources; yet throughout history, their rights have been violated. Indigenous peoples are arguably among the most disadvantaged and vulnerable groups of people in the world today. The international community now recognizes that special measures are required to protect the rights of the world’s indigenous peoples. Indigenous people have often found their lands and cultures overridden by more dominant societies.

Many Europeans at that time saw native peoples from regions such as Africa, Asia and the Americas as “primitives,” or “savages” to be dominated. This would help justify settlement and expansion into those lands, and even slavery. Without civilization these people could be regarded as inferior, and if seen as “non-people” then European colonialists would not be impeding on anyone else’s territory. Instead, they would be settling “virgin territory” (sometimes “discovered”) overcoming numerous challenges they would face with much courage. Under international law, tribal people, for example, do have some recognized rights. The two most important laws about tribal peoples are Conventions 107 and 169 under the International Labour Organization (ILO), part of the UN system.

These conventions obliges governments to identify the lands and protect these rights. It ensures recognition of tribal peoples’ cultural and social practices, obliges governments to consult with tribal peoples about laws affecting them, guarantees respect for tribal peoples’ customs, and calls for protection of their natural resources.

The struggle for such rights is still not over. Many governments routinely violate the rights of indigenous people. A slow process is, however, raising hope for a more comprehensive set of rights, although some major countries are still against some particular aspects.

U.N. Draft on Declaration on the Rights of Indigenous Peoples.

The Declaration emphasizes the right of indigenous peoples to maintain and strengthen their own institutions, cultures and traditions and to pursue their development in accordance with their aspirations and needs.

Although it would not be legally binding if it were ever adopted by the General Assembly, indigenous communities around the world have pressed hard for this and have felt that the adoption of the declaration will help indigenous people in their efforts against discrimination, racism, oppression, marginalization and exploitation.

Major Countries Opposed To Various Rights For Indigenous Peoples

The process to draft the aforementioned declaration moved very slowly, not because of some imagined slowness and inefficiencies of an over-sized bureaucracy, but because of concerns expressed by particular countries at some of the core provisions of the draft declaration, especially the right to self-determination of indigenous peoples and the control over natural resources existing on indigenous peoples’ traditional lands.

Some historically and currently powerful countries have been opposed to various rights and provisions for indigenous peoples, because of the implications to their territory, or because it would tacitly recognize they have been involved in major injustices during periods of colonialism and imperialism. Giving such people’s the ability to regain some lost land, for example, would be politically explosive.

Inter Press Service (IPS) notes, for example, that countries such as the United States, Australia, and New Zealand, have all been opposed to this declaration. These countries have noted in a joint statement that “No government can accept the notion of creating different classes of citizens.”

Furthermore, as IPS also noted, the delegation claimed that the indigenous land claims ignore current reality “by appearing to require the recognition to lands now lawfully owned by other citizens.”

The problem with the delegation’s views are that they ignore historical reality. To say that “creating different classes of citizens” is objectionable does sound fair. However, in this case, different classes were created from the very beginning as indigenous people were cleared off their lands and either treated as second class citizens, or, not even considered to be citizens in the first place. Many of these laws then, were often made by a society that never recognized or accepted that such people had rights, and so the law only applied to the new dominant society, not the original people.

There are of course complications to this. For example, there is often a contentious debate about whether some European settlers colonized land that was not inhabited before, or were used by nomadic people, in which case European settlers could argue (from their perspective) that the land was not properly settled. Also, European settlers can also note that sometimes agreements were made with indigenous people to obtain certain lands, but it is also contentious as to whether all these agreements would have been made fairly, as some were made at gun point, while other agreements were achieved through deception and various forms of manipulation.

Survival International criticizes Britain and France, of being opposed to some aspects of rights for indigenous peoples, as well as the United States. These two countries, formerly commanding vast empires and colonies have also subjected native peoples to cruel denial of rights and oppression.

A key part of the declaration has been the “collective” right of indigenous peoples, for they are seen by many indigenous communities as “essential for the integrity, survival and well-being of our distinct nations and communities. They are inseparably linked to our cultures, spirituality and worldviews. They are also critical to the exercise and enjoyment of the rights of indigenous individuals.A reason such countries may be opposed to collective rights is that it implies land and resource rights, whereas supporting only individual rights would not. Collective rights could therefore threaten access to valuable resources if they cannot be exploited, or if they are used for, and by, the indigenous communities.

As Survival International also notes, individual rights is sometimes an alien concept to some societies, and it can be easier to exploit individuals than a collective people.

Full collective rights over land and resources are essential for the survival of tribal peoples. The Yanomami of Amazonia, for example, live in large communal houses called yanos. The concept of ‘individual ownership’ of such a building is nonsensical. A tribe’s right to decide, for example, whether a mining company should be allowed to operate on its land, also only makes sense as a collective right. The UK claims, however, that these vital collective rights should be individual rights ‘exercised collectively.’ In the USA, the infamous Dawes Act of 1887 demonstrated the danger of this approach. The Act turned communally-held Indian lands into individual plots; 90 million acres of Indian land were removed at a stroke, and the reservations were broken up.

As reported by IPS, some African countries who had previously supported the declaration this time raised concerns about the phrase “right to self-determination” because much of Africa is considered indigenous and they feared unwanted rebellions by some groups within their borders.Some indigenous leaders, disappointed by this, claimed it was pressure from US, Canada, Australia, New Zealand and others opposed to the declaration, that had lobbied for this position, behind the scenes.

Customary Law—Backward Or Relevant Justice Systems?

Many indigenous cultures having developed their own societal traditions and norms naturally have ways to deal with crimes. Various anthropologists and others have noted some interesting differences between some traditional systems of justice and modern law. Indigenous law consists of a series of unwritten oral principles that are abided by and socially accepted by a specific community. Although these norms may vary from one community to another, they are all based on the idea of recommending appropriate behaviour rather than on prohibition.

Customary indigenous law aims to restore the harmony and balance in a community; it is essentially collective in nature, whereas the Western judicial system is based on individualism. Customary law is based on the principle that the wrongdoer must compensate his or her victim for the harm that has been done so that he or she can be reinserted into the community, whereas the Western system seeks punishment. In various countries in Africa, traditional systems of justice have often helped people come to term with conflict as part of a rebuilding process. Truth and reconciliation commissions, such as the well-known one in South Africa have bought victims and perpetrators together.

Truth commissions attempt to establish what happened, why, by whom, and may even include provisions for amnesty, forgiveness, or appropriate justice, all in the hope that “never again” should such gross human rights abuses occur. Victims get the chance to be heard and perpetrators have the opportunity to reintegrate back into society without the fear of backlash. In Africa, there have been commissions in South Africa, Sierra Leone, Rwanda, the Central African Republic, Ghana, Nigeria, and Kenya. Liberia and the Democratic Republic of Congo have also hinted at the prospect of truth commissions.

These systems are not perfect, as sometimes war criminals may get off lighter than expected.

Indigenous Peoples’ Struggle around The World

The International Work Group for Indigenous Affairs (IWGIA) has for years worked on these issues. Their world reports detail issues and struggles for indigenous people around the world. Human Rights are universal, and civil, political, economic, social and cultural rights belong to all human beings, including indigenous people. Every indigenous woman, man, youth and child is entitled to the realization of all human rights and fundamental freedoms on equal terms with others in society, without discrimination of any kind. Indigenous people and peoples also enjoy certain human rights specifically linked to their identity, including rights to maintain and enjoy their culture and language free from discrimination, rights of access to ancestral lands and land relied upon for subsistence, rights to decide their own patterns of development, and rights to autonomy over indigenous affairs.

The Human Rights at Issue

The human rights of indigenous people and peoples are explicitly set out in the ILO Indigenous and Tribal Peoples Convention (No. 169), the Universal Declaration of Human Rights, the International Covenants, the Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Rights of the Child, and other widely adhered to international human rights treaties and Declarations. They include the following indivisible, interdependent and interrelated human rights.

The human right to freedom from any distinction, exclusion, restriction or preference based on their indigenous status which has the purpose or effect of impairing the enjoyment of human rights and fundamental freedoms that are :

 The human right to freedom from discrimination in access to housing, education, social services, health care or employment.

 The human right to equal recognition as a person before the law, to equality before the courts, and to equal protection of the law.

 The human right of indigenous peoples to exist.

 The human right to freedom from genocide and ‘ethnic cleansing’.

 The human right to livelihood and work which is freely chosen, and to subsistence and access to land to which they have traditionally had access and relied upon for subsistence.

 The human right to maintain their distinctive spiritual and material relationship with the lands, to own land individually and in community with others, and to transfer land rights according to their own customs.

 The human right to use, manage and safeguard the natural resources pertaining to their lands.

 The human right to freedom of association.

 The human right to enjoy and develop their own culture and language.

 The human right to establish and maintain their own schools and other training and educational institutions, and to teach and receive training in their own languages.

 The human right to full and effective participation in shaping decisions and policies concerning their group and community, at the local, national and international levels, including policies relating to economic and social development.

 The human right to self-determination and autonomy over all matters internal to the group, including in the fields of culture, religion, and local government.

In recognition of the fact that indigenous and tribal peoples are likely to be discriminated against in many areas, the first general, fundamental principle of The Tribal People’s Convention No. 169 is non-discrimination. Article 3 of the Convention states that indigenous peoples have the right to enjoy the full measure of human rights and fundamental freedoms without hindrance or discrimination. In Article 4, the Convention also guarantees enjoyment of the general rights of citizenship without discrimination. Another principle in the Convention concerns the application of all its provisions to male and female indigenous persons without discrimination (Article 3). Article 20 provides for prevention of discrimination against indigenous workers.

In response to the vulnerable situation of indigenous and tribal peoples, Article 4 of the Convention calls for special measures to be adopted to safeguard the persons, institutions, property, labour, cultures and environment of these peoples. In addition, the Convention stipulates that these special measures should not go against the free wishes of indigenous peoples.

Recognition of the cultural and other specificities of indigenous and tribal peoples and consultation of the Tribal People’s convention No. 169

Indigenous and tribal peoples’ cultures and identities form an integral part of their lives. Their ways of life, customs and traditions, institutions, customary laws, forms of land use and forms of social organization are usually different from those of the dominant population. The Convention recognizes these differences, and aims to ensure that they are protected and taken into account when any measures are being undertaken that are likely to have an impact on these peoples. The spirit of consultation and participation constitutes the cornerstone of Convention No. 169 on which all its provisions are based. The Convention requires that indigenous and tribal peoples are consulted on issues that affect them. It also requires that these peoples are able to engage in free, prior and informed participation in policy and development processes that affect them.The principles of consultation and participation in Convention No. 169 relate not only to specific development projects, but also to broader questions of governance, and the participation of indigenous and tribal peoples in public life.

In Article 6, the Convention provides a guideline as to how consultation with indigenous and tribal peoples should be conducted:

Consultation with indigenous peoples should be undertaken through appropriate procedures, in good faith, and through the representative institutionsof these peoples;

The peoples involved should have the opportunity to participate freely at all levelsin the formulation, implementation and evaluation of measures and programmes that affect them directly;

Another important component of the concept of consultation is that of representativity. If an appropriate consultation process is not developed with the indigenous and tribal institutions or organizations that are truly representative of the peoples in question, then the resulting consultations would not comply with the requirements of the Convention.

The Convention also specifies individual circumstances in which consultation with indigenous and tribal peoples is an obligation.

Consultation should be undertaken in good faith, with the objective of achieving agreement. The parties involved should seek to establish a dialogue allowing them to find appropriate solutions in an atmosphere of mutual respect and full participation. Effective consultation is consultation in which those concerned have an opportunity to influence the decision taken. This means real and timely consultation. For example, a simple information meeting does not constitute real consultation, nor does a meeting that is conducted in a language that the indigenous peoples present do not understand.

The challenges of implementing an appropriate process of consultation with indigenous peoples have been the subject of a number of observations of the ILO’s Committee of Experts, as well as other supervisory procedures of the ILO, which the ILO has now compiled in a Digest. Adequate consultation is fundamental for achieving a constructive dialogue and for the effective resolution of the various challenges associated with the implementation of the rights of indigenous and tribal peoples.

Implementation of Convention No. 169

Since its adoption, Convention No. 169 has gained recognition well beyond the number of actual ratifications. Its provisions have influenced numerous policy documents, debates and legal decisions at the regional and international levels, as well as national legislation and policies.

The Provisions of Convention No. 169 are compatible with the provisions of the United Nations Declaration on the Rights of Indigenous Peoples, and the adoption of the Declaration illustrates the broader acceptance of the principles of Convention No. 169 well beyond the number of ratifications.

The Convention stipulates that governments shall have the responsibility for developing co-ordinated and systematic action to protect the rights of indigenous and tribal peoples (Article 3) and ensure that appropriate mechanisms and means are available (Article 33). With its focus on consultation and participation, Convention No. 169 is a tool to stimulate dialogue between governments and indigenous and tribal peoples and has been used as a tool for development processes, as well as conflict prevention and resolutions.

Indigenous peoples around the world have sought recognition of their identities, their ways of life and their right to traditional lands, territories and natural resources; yet throughout history, their rights have been violated. Indigenous peoples are arguably among the most disadvantaged and vulnerable groups of people in the world today. The international community now recognizes that special measures are required to protect the rights of the world’s indigenous peoples.

Domestic Implementation of Human Rights



India was a signatory to the Universal Declaration of Human Rights. The Indian constitution was adopted by the constituent Assembly on Dec 26, 1949, which came into force from Jan 26, 1950. Our Indian constitution was greatly influenced by the Universal Declaration of Human Rights, 1948. Provisions of Part III which stands for Fundamental Rights and Part IV for Directive Principles of State Policy bear a close resemblance to the Universal Declaration of Human Rights. As a result, a number of fundamental rights guaranteed in Part III of the Indian Constitution are similar to the provision of Declaration.

Name of the Rights Universal Declaration Indian Constitution

Equality before law Art. 7 Art. 14

Prohibition of discrimination Art. 7 Art. 15(1)

Equality of opportunity Art 21(2) Art. 16(1)

Freedom of speech and expression Art. 19 Art.19(1)(a)

Freedom of peaceful assembly Art. 20(1) Art. 19(1)(b)

Right to form association or unions Art. 23(4) Art. 19(1)(c)

Freedom of movement within the border Art. 13(1) Art19(1)(d)

Protection in respect of conviction for offencesArt.11(2) Art. 20(1)

Protection of life and personal liberty Art. 9 Art. 21

Protection of slavery and forced labour Art. 4 Art. 23

Freedom of conscience and religion Art. 18 Art. 25(1)

Freedom of enforcement of rights Art. 8 Art. 32

The above chart shows that the Universal Declaration which was adopted just before the Indian Constitution widely held to have provided the model for Indian Constitution human rights guarantees. It appears that the founders of the Constitution were conscious about the contents of the Declaration and therefore they gave due recognition to its provisions.

In Kesavananda Bharati vs State of Kerala (AIR 1973 SC 1461), the Supreme Court observed that the Universal Declaration of Human Rights may not be a legally binding instrument but it shows how India understood the nature of the Human Rights at the time the Constitution was adopted. Thus, although the Supreme Court has stated that the Declaration cannot create a binding set of rules and even international treaties may at best inform judicial institutions and inspire legislative action, constitutional interpretation in India has been strongly influenced by the Declaration.

In Chairman, Railway Board and others v Mrs. Chandrima Das (AIR 2000 SC 988), the Supreme Court observed that the Declaration has the international recognition as the “Moral code of Conduct” having been adopted by the General Assembly of the United Nations. In a number of cases the Declaration has been referred to in the decisions of the Supreme Court and High Courts.


India has ratified the International covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights on March 27, 1979. By ratification it has established on the international plane its consent to be bound by them. It has an obligation to provide to the individuals the rights contained in the two Covenants.


The Indian constitution provides a number of rights which are called ‘fundamental rights’. The expression ‘fundamental rights’ denotes that these rights are inherent in all human beings and they are required for blossoming of the human personality and soul. These rights have been given a place of pride in the Constitution. These rights are therefore necessary to protect the dignity of individual and to create conditions in which a person can develop to the fullest extent.

In A.D.M., Jabalpur v Shukla (AIR 1976 SC 1207), Beg J. Observed that the object of making certain rights as fundamental as to guarantee them from the illegal invasion by executive, legislature and judicial organ of the state. The Supreme Court of India has recognised these fundamental rights as ‘natural rights’ or ‘human rights’.

Fundamental rights guaranteed under the Indian Constitution may be divided for the sake of convenience in two categories, i.e. specified fundamental rights and other fundamental rights. The specified fundamental rights are those rights which are there in the Covenant as well as these rights are specifically enumerated in the Indian constitution. This division is helpful in order to make them comparable with the human rights guaranteed to the individuals under the International Covenant on Civil and Political Rights.

Name of the Rights Covenant on Civil and Political Rights Indian Constitution

Forced Labour Art. 8(3) Art. 23

Equality before law Art.14(1) Art. 14

Prohibition of discrimination Art. 26 Art. 15(1)

Equality of opportunity Art. 25(c) Art. 16(1)

Freedom of speech and expression Art. 19(1) & (2) Art. 19(1)(a)

Freedom of peaceful assembly Art. 21 Art. 19(1)(b)

Right of freedom of association Art. 23(4) Art. 19(1)(c)

Right to life and liberty Art. 6(1) &9(1) Art. 21

Freedom of conscience and religion Art. 18(1) Art. 25

However, there are a number of rights which, though are not specified in Part III of the Constitution by name as fundamental rights have been regarded as fundamental by the Supreme Court by enlarging the meaning and scope of the fundamental rights.

Although in A.D.M., Jabalpur v Shukla (AIR 1976 SC 1207), the Supreme Court held by a majority of 4:1 that the Constitution of India did not recognise any natural or common law rights other than that expressly conferred in the Constitution, the trend of the Supreme Court has changed especially after 1978. The Courts on many occasions, by accepting the rule of judicial construction, that regards must be paid to international conventions and norms for constructing domestic law, held that the rights which are not specifically mentioned in the constitution may be regarded as fundamental rights if it is integral part of the fundamental right.

The following are the rights which are contained in the Covenant on Civil and Political Rights are available to the citizens of India in spite of their not being specifically mentioned in the Constitution.

1.1. Right to privacy

By the expression right to privacy we mean the right to be left alone to live one’ s own life with minimum degree of interference. The right to privacy is stipulated in the Covenant on Civil and political Rights under Art. 17(1) which says that no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. But this right is not guaranteed in the constitution.

However, in Kharak Sing v State of U.P., [(1964) 1 SCR 33] it was held by the Supreme Court that the domiciliary visits is an infringement of the right to privacy and is violative of the citizen’ s fundamental right guaranteed under Art.21 of the Indian Constitution.

In Govind v State of Madhya Pradesh [1996 (0) MPLJ 649] the right to privacy was assumed to be a part of the personal liberty guaranteed under Art. 21 of the Constitution, by stating that although the right to privacy is not explicitly provided in the Constitution, it is ingrained in the fundamental right of life and personal liberty.

In People’s Union for Civil Liberties v Union of India [1997 AIR (SC) 568], commonly known as telephone tapping case, the Supreme Court held that right to life and personal liberty includes telephone conversation in the office or home and thus telephone tapping is violative of Art. 21.

1.2. Right to travel abroad

The right to travel abroad is a guaranteed right under Art.12 Para 2 of the Covenant; however it is not specifically recognised under Part III of the Constitution as a fundamental right. The Supreme Court in Satwant Sing v Asst. Passport Officer, New Delhi [AIR 1967 SC 1836] held that the right to go abroad is a part of the person’ s personal liberty within the meaning of Art. 21.

In Maneka Gandhi v Union of India [AIR 1978 SC 597] the Supreme Court upheld the decision of the Satwant Sing’s case.

1.3. Right to speedy trial

The Covenant on Civil and Political Rights laid down under Art. 9 Para (3) that anyone arrested or detained on a criminal charge shall be brought before judge….and shall be entitled to trial within a reasonable time or to release. But the Constitution has got no provision for a person to be tried without undue delay.

In Hussainara Khatun v Home Secretary, State of Bihar(no.1) [(1980) 1 SCC 98] it was held by the Supreme Court that though the right to speedy trial is not directly mentioned in the fundamental right but is implicit in the broad sweep of Art.21 which deals with right of life and personal liberty.

In the case Raj Deo Sharma v State of Bihar [(1998) 7 SCC 507] the Supreme Court after having recognised that the speedy trial is the right of the accused, issued certain directions for effective enforcement of this right. The Court directed that in cases where the trial is for an offence punishable with imprisonment for a period not exceeding two years and if the offence of the under trial is punishable with a period exceeding 7 years, the court shall close prosecution evidence on completion of 3 years from the date of recording of the plea or framing of the charge. The whole idea was to speed up the trial in criminal case to prevent the prosecution from becoming a persecution (harassment).

1.4. Right to provide legal assistant

The Covenant on Civil and Political Rights provides under Para 3(d) of Article 14 that everyone shall be entitled to be tried in his presence, and to defend himself in person or through his legal assistance of his own choosing, to be informed, if he does not have legal assistance assigned to him, of this right; and to have legal assistance assigned to him, in any case where the interest of justice so requires, and without payment by him in any such case if he has no sufficient means to pay for it.

In M.H. Hoskot v State of Maharashtra [(1978) 3 SCC 544] that the right to free legal service is an essential ingredients of reasonable, fair and just procedure for a person accused of an offence and is implicit in Art.21 of the Constitution.

In Khatri v State of Bihar [AIR 1981 SC 928] the Supreme Court directed the state of Bihar that it cannot avoid the constitutional obligations to provide free legal services to a poor by pleading feeding financial and administrative inability.

1.5. Right of prisoners to be treated with humanity

Article 10 of the Covenant on Civil and Political Rights under Para (1) lays all person deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. But the Indian Constitution there is no such provision in Part III which can safeguard the brutal treatment given to the prisoners.

However, the Supreme Court in Charles Shobraj v Suerintendent, Central Jail, Tihar, New Delhi recognised that ‘right to life’ is more than mere animal existence. Even iin prison person is required to be treated with dignity and enjoy all those right mentioned in Art.19 and 21.

In Francis Coralie Mullin v The Administrator, Union Territory of Delhi [(1981) 2 SCR 516], it was again observed by the Supreme Court that even a convict is entitled to the protection of the precious right guaranteed by the Art 21 of the Constitution.

In Sunil Batra v Delhi Administration (no 1) [1979 SCR (1) 392], the practice of keeping under trials with convicts in jail was regarded by the Supreme Court as inhuman and violation of Art 21.

In Bandhua Mukti Morcha [1992 AIR SC 38] case, the Supreme Court held that the right to life guaranteed by Art. 21 included the right to live with human dignity free from exploitation.

In D.K. Basu v State of West Bengal [AIR 1997 SC 610], the Supreme Court held that the precious right guaranteed by the Constitution of India cannot be denied to convicts, under trials, detenues and other prisoners in custody except according to the procedure established by law.

1.6. Right to compensation

The Covenant on Civil and Political Right under Art 9 Para 5 laid down that ‘anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.’ This right has not been specifically guaranteed by the Constitution but the court ruled that a suit for compensation against the state is maintainable and the state has no right to take any action which may deprive the citizen of the basic fundamental rights except in accordance with the law which is reasonable, just and fair.

In Rudal Shah v State of Bihar [AIR 1983 SC 1086] the Supreme Court held that Art 21 which says about right to life will be denuded of its significant content if the power of this court were limited to passing orders of release from illegal detention.

1.7. Right to information

The Covenant on Civil and Political Rights laid down under Art 19, Para 2 that everyone shall have the right to freedom f speech and expression. The Indian constitution under Art 19(1) (a) guarantees the right to free speech and expression as fundamental right, the right to information is not specifically mentioned in Part III of the Constitution.

In S.P.Gupta v Union of India [AIR 19S2 SC 149], Justice Bhagwati stated that the concept of open government is the direct emanation from the right to free speech and expression. Therefore disclosures of information in regard to the functioning of government must be the rule and secrecy an exception justified only where the strictest requirement of public interest is required.

Therefore it may be concluded that a number of rights which are not specifically provided in the Constitution in Part III as ‘fundamental rights’ have been regarded as fundamental and are available to the individual because of the bold interpretation given by the Supreme Court of those rights which are specifically provided in the Constitution. We can say the judiciary has been a zealous guardian of the human rights.


Economic, Social and Cultural Rights of human beings are contained in the Economic, Social and Cultural Rights. The Covenant has significant feature which makes it different from the Covenant on Civil and Political Rights. Under the Covenant on Civil and Political Rights the states are under an obligation to respect and to ensure to all the individual the rights stipulated therein, but under the Covenant on Economic, Social and Cultural Rights the states are not bound to do so. Rights stipulated in the Covenant on Economic, Social and Cultural Rights do not find place in Part III of the Constitution but they are provided in Part IV of the Constitution which stands for the Directive Principles of State Policy. This Part contains a list of directives and instructions to be followed by the present and future governments irrespective of their political complexion. The directive principles are fundamental in governance of the Country. Thus Part IV cast upon the states the duties which they are required to follow. The directive principles which broadly incorporate the economic and social rights are as much as a part of human rights. Many rights enshrined in the Covenant on

Economic, Social and Cultural Rights are incorporated in the directive principles.

Thus we can see that all rights like right to equal pay for equal work for both men and women, the right to protect the childhood of work and for maternity work, the right to work, right to adequate standard of living, etc are recognised in the Covenant as well as in our Indian Constitution. However, these rights being stated in Part IV of the Constitution are not enforceable in the court of law. But recently some of these rights are considered as fundamental by the Supreme Court by enlarging the scope of the ‘fundamental rights’ stipulated in Part III of the constitution. This has done by broadening the ambit of the ‘right to life’ under Art.21 of the Constitution. Some of these rights are as follows:

4.1. Equal pay for equal work

The Covenant of Economic, Social and Cultural Rights under Art 7(a) lays down that fair wages and equal remuneration fro work of equal value without distinction of any kind in particular women being guaranteed conditions of work not inferior to those enjoyed by men. Under the Indian constitution clause (d) of Art.39 of the Directive Principles of State Policy states about the equal pay for equal work for both men and women.

In Randhir Sing v Union of India [1982 AIR 879], the Supreme Court held that the principle of equal pay for equal work though not a fundamental right is certainly a Constitutional gaol and capable through enforcement through Constitutional remedies available under art 32 of the Constitution.

4.2. Right of workmen to medical benefits

‘Safe and healthy working conditions and the creation of conditions which would assure to all medical service and medical attention in the event of sickness’ are the rights which are stated in Art.7, Para (b) and Article 12, Para 2(d) under the Covenant on Economic, Social and Cultural Rights. Right to workmen to medical benefits under the Indian Constitution finds place under Art.38 and Art.39 which is not enforceable. But the Supreme Court in the Regional Director, ESI, Corporation and another v Francis De Costa and another [1996(6) SCC 1] held that under Art. 21 read with Art. 38 and 39 the right to medical and disability benefit to workmen is his fundamental right.

4.3. Right to livelihood

Art. 6 of the Covenant of Economic, Social and Cultural Rights says right to work including the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right. The right to livelihood has been incorporated in Art 39(a) and Art 41 of the Indian Constitution.

The Supreme Court in Olga Tellis v Bombay Municipal Corporation [(1985) 3 SCC 545], popularly known as the pavement dwellers, held that right to livelihood is an integral facet of the right to life guaranteed under Art 21 of the Constitution.

4.4. Right to shelter

The Covenant on the Economic, social and Cultural Rights under Art 7 Para (a)(ii) lays down that the States parties recognise the right of everyone for decent living for themselves and their families and Art. 11 they recognise the right of everyone to an adequate standard of living for himself and his family including housing. It shows that right to shelter finds a place in the Covenant but it has not been enumerated specifically in the Indian Constitution. However, the Supreme Court in Chameli Sing v State of U.P. [AIR 1996 SC 1051] it was held that by the Supreme Court that the right to live includes the right to food, water, decent environment, education, medical care and shelter. As of right to shelter is concerned the court held that it includes adequate living space, safe and decent structure, clean and decent surroundings, sufficient light, pure air and water, electricity and other civil amenities like roads, etc.


i. Prof. M.P.Jain, INDIAN CONTITUTIONAL LAW, Fifth edition reprint 2009, LexisNexis Butterworths Wadhwa, Butterworths Wadhwa, Nagpur

ii. Prof. Narendra Kumar, CONTITUTIONAL LAW OF INDIA, 5th edition, 2006, Allahabad Law Agency

iii. V. Para Brahma Sastri, RIGHT TO LIFE AND PERSONAL LIBERTY(COMMENTARY AND CASE MATERIALS), 1st edition, 2005, Asia Law House, Hyderabad


Child labour in india: A human rights perspective

child labourAastha Suman


Child labour is undoubtedly a human rights issue. It is not only exploitative but also endangers children’s physical, cognitive, emotional, social, and moral development. It perpetuates poverty because a child labour, deprived of education or healthy physical development, is likely to become an adult with low earning prospects. This is a vicious cycle which apart from ruining the lives of many results in an overall backwardness in the masses.

Moreover, conceptualising child labour as a human rights issue gives the victim with the authority to hold violators liable. Human rights generate legal grounds for political activity and expression, because they entail greater moral force than ordinary legal obligations. Children are right holders with the potential to make valuable contributions to their own present and future well being as well as to the social and economic development of the society and thus they should under no circumstances be perceived as passive and vulnerable.

Today, traditionally prescribed interventions against child labour which were welfare based like providing a minimum age for work are being replaced by rights-based approach. A rights-based approach to child labour needs to be adopted which puts internationally recognized rights of children to the center while utilizing UDHR, ICCPR and ICESCR as a supportive framework. Child labour is a condition from which the children have a right to be free and it is not merely an option for which regulating standards must be devised.

In this paper we shall firstly trace the slow orientation of child labour laws to include human rights perspective internationally, and then evaluate current Indian laws and policies from a human rights perspective


Initially, scholars were unsure over extending human rights to children. For instance, the 1948 Universal declaration of Human Rights (UDHR) emphasises that “everyone is entitled to all rights and freedoms set forth in the declaration…” but makes no age qualification to the same. So it is unclear whether it extends to children. However, Art.4 of UDHR has been interpreted as prohibiting exploitation of child labour by interpreting “servitude” to include child labour.

In addition, Articles 23 and 26 of the United Nations Universal Declaration of Human Rights seek to guarantee ”just and favorable conditions of work” and the ”right to education,” both of which are violated constantly and globally through the exercise of the worst forms of child labor.

In 1966 the International Covenant on economic, social and cultural rights (ICESCR) and International Covenant on civil and political rights (ICCPR) took significant preliminary steps towards modifying human rights according to age, by defining childhood as a state requiring special protection, with rights distinct to those of adults. Even so it was not until 1989 that the Convention on Rights of Children (CRC) clearly spelt out the rights of the child while giving them a special status apart from the adults.

Thus, it should not be surprising that early international legal efforts to address child labour tended to be abolitionist in tone and treated as an aspect of labour market regulation. Next, a prioritization approach was adopted where concentration was on the more abusive forms of child labour. So the ILO adopted Convention 182 on the Worst Forms of Child Labor, 1999, aimed at the immediate elimination of intolerable forms of child labor. The convention requires signatories to work with business groups to identify hazardous forms of child labor and introduce time-bound programs for eliminating them.

Conventions 138 and 182 are recognised as core International Labour Organization (ILO) conventions but unfortunately human rights groups have done much to criticise it. They argue that this artificial division of hazardous and non-hazardous forms of child labour is artificial and made only for the benefit of labour regulations. Child labour in any form is very harmful and exploitative for the children.

Secondly, child labour, as defined by ILO is work done by children under the age of 12; work by children under the age of 15 that prevents school attendance; and work by children under the age of 18 that is hazardous to their physical or mental health. It is an economic activity or work that interferes with the completion of a child’s education or that is harmful to children in any way. Such an age based classification is incongruous and is behind time. The right to a childhood cannot be replaced by placing such age barriers which imply at least some work could be done by children at even age 12! Where is the best interest of child seen in such laws?

Fortunately, a human rights approach to child labour was soon adopted by Convention on Rights of the Child (CRC) in 1989. Such rules focus not only on the avoidance of harm to children but as well, on regulation of employment relationship in which working children find themselves and beyond that, on rights of children to education and to participate in decisions that affect their lives, including those related to their employment. This holistic view of child labour as only a part of a child’s life is principally what sets human rights approach apart from the labour regulation approach. However, some critique of CRC feel that categorizing child labour as a special category has trivialized their rights and have made them weak and in need of an adult advocate. Conversely, the defenders of CRC argue that it is through this classification that children gain more rights with legally recognized interests which are specific to their stage in life cycle.

The slavery convention, 1926 and Supplementary convention on abolition of slavery, the slave trade, institutions and practices similar to slave trade, 1956 entered into force in 1957 prohibits slavery like practice under Art 1. In recent times Child labour has been read as a slave like practice as it involves economic exploitation. Since children are more vulnerable than adults and are dependent on their parents, it can be assumed that when they are economically exploited by their parents or by their consent, the decree of dependency necessary for work to b qualified as slavery like practice will be attained in most cases.

In the light of ICCPR (art 8(2)) and Supplementary convention on abolition of slavery, the slave trade, institutions and practices similar to slave trade, 1956, Art.4 of UDHR should be interpreted as prohibiting exploitation of child labour as child labour comes under “servitude”. Child labour also comes under the term “forced or compulsory labour” in Art.8(3) of ICCPR. The obligations of state parties under art 8 are immediate and absolute. Thus state parties have to prevent private parties from violating child labour norms. Art 24, ICCPR obliges the state to protect children from economic exploitation.


United Nations Convention on the Rights of the Child is the first legally binding international instrument to incorporate a full range of human rights such as civil, cultural, economic, political and social rights for children. The Convention offers a vision of the child as an individual and as a member of a family and community, with rights and responsibilities appropriate to his or her age and stage of development. By recognizing children’s rights in this way, the Convention firmly sets the focus on the whole child.

The Convention under Art.32 speaks of economic exploitation of children by making them perform work that is likely to be hazardous or to interfere with the child’s education, or to be harmful to the child’s health or physical, mental, spiritual, moral or social development. The Convention spells out a child’s right to education , as well as identifying the forms of harm to which children should not be exposed. Other rights given to children include right “to the enjoyment of the highest attainable standard of health” and to abolish traditional practices that are prejudicial to children’s health (Article 24), a right “to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development”; parents have the main responsibility for this, but governments are required “within their means” to assist parents, as well as to provide material assistance and support in case of need(Article 27) and a right “to rest and leisure, to engage in play and recreational activities appropriate to the age of the child”. Article 22 specifies that refugee children have the same rights as all other children.

Article 6 of the convention makes it the obligation of the governments to ensure that children are able to survive and develop “to the maximum extent possible” while Article 11 urges governments to prevent “the illicit transfer and non-return of children abroad”. Under Article 19, Governments must take action to protect children against all forms of physical or mental violence, injury, abuse, neglect, maltreatment or exploitation, including sexual abuse and must provide special protection and assistance to children who are deprived of their own family environment under article 20. Article 35, requires governments to take action to prevent children from being trafficked while articles Article 36 and 39 requires governments to protect children “against all other forms of exploitation prejudicial to any aspects of the child’s welfare” and to help children recover from exploitation, neglect or abuse (particularly their physical and psychological recovery and return and reintegration into the communities they come from).

Two other provisions in the Convention are also vitally important for working children. Article 3 says government agencies and other institutions taking action concerning a child or children must base their decisions on what is in the children’s “best interests”. Article 12 emphasises that when a child is capable of forming his or her views, these should be given due attention, in accordance with the child’s age and maturity.

Other conventions of interest include Optional protocol to the convention on rights of child on sale of children, child prostitution and child pornography and Optional protocol to the convention on rights of child on the involvement of children in armed conflict both adopted in May, 2000.


India has ratified six ILO conventions relating to child labour but have not ratified the core ILO conventions on minimum age for employment (convention 138) and the worst forms of child labour, (convention 182) recognised as the core conventions at the international labour conference which makes it mandatory for the international community to follow certain standards in their crusade against child labour. Nevertheless, India has taken commendable steps to eliminate child labour.

The recent right of children to free and compulsory education Act, 2009 and the preceding 86th amendment exemplifies the same. Furthermore, the passing of Juvenile Justice (care and protection) Act, 2006 shows India’s commitment to a human rights approach to child labour. The Act emphasises on looking into the best interests of the child and allows for social reintegration of child victims.

In such a scenario India not signing the core labour conventions does not make a difference in the fight against child labour. India is a party to the UN declaration on the Rights of the Child 1959. India is also a signatory to the World Declaration on the Survival, Protection and Development of Children. More, importantly India ratified the Convention on the Rights of the Child on 12 November 1992.

Other important international initiatives against child labour include the adoption of the first Forced Labor Convention (ILO, No. 29), 1930, Stockholm Declaration and Agenda for Action: States that a crime against a child in one place is a crime anywhere, 1996, establishment of 12 June as the World Day Against Child Labor in 2002 by ILO and the first global economic study on the costs and benefits of elimination of child labour.


The present regime of laws in India relating to child labour are consistent with the International labour conference resolution of 1979 which calls for combination of prohibitory measures and measures for humanising child labour wherever it cannot be immediately outrun.

In 1986 Child labour (Prohibition and regulation) Act was passed, which defines a child as a person who has not completed 14 years of age. The act also states that no child shall be employed or permitted to work in any of the occupations set forth in Part A or in the process set forth in Part B, except in the process of family based work or recognised school based activities. Through a notification dated 27 January 1999, the schedule has been substantially enlarged to add 6 more occupations and 33 processes to schedule, bringing the total to 13 occupations and 51 processes respectively. The government has amended the civil service (conduct) rules to prohibit employment of a child below 14 years by a government employee. Similar changes in state service rules have also been made.

The framers of the Indian Constitution consciously incorporated relevant provisions in the constitution to secure compulsory primary education as well as labour protection for children. If the provisions of child labour in international conventions such as ILO standards and CRC are compared with Indian standards, it can be said that Indian constitution articulates high standards in some respects The constitution of India, under articles 23,24, 39 ( c) and (f), 45 and 21A guarantees a child free education, and prohibits trafficking and employment of children in factories etc. The articles also protect children against exploitation and abuse. Equality provisions in the constitution authorises affirmative action policies on behalf of the child.

The National child labour policy (1987) set up national child labour projects in areas with high concentration of child labour in hazardous industries or occupations, to ensure that children are rescued from work and sent to bridge schools which facilitate mainstreaming. It is now recognised that every child out of school is a potential child labour and most programs working against child labour tries to ensure that every child gets an education and that children do not work in situations where they are exploited and deprived of a future. Similarly, there are other programmes like National authority for elimination of child labour, 1994 (NAECL) and National resource centre on child labour, 1993 (NRCCL). Recently, government of India notified domestic child labour, and child labour in dhabas, hotels, eateries, spas and places of entertainment as hazardous under the child labour (prohibition and regulation) Act, 1986, effective from 10-10-2006.

National human rights commission has played an important role in taking up cases of worst forms of child labour like bonded labour. In 1991 in a silk weaving village of Karnataka called Magdi it held an open hearing which greatly sensitised the industry and civil societies. It also gave rise to new NCLP programmes.


Judiciary in India has taken a proactive stand in eradicating child labour. In the case of M.C. Mehta v. State of Tamil Nadu and Ors , this Court considered the causes for failure to implement the constitutional mandate vis-à-vis child labour. It was held that the State Government should see that adult member of family of child labour gets a job. The labour inspector shall have to see that working hours of child are not more than four to six hours a day and it receives education at least for two hours each day. The entire cost of education was to be borne by employer.

The same was reiterated in BandhuaMuktiMorchav.UOI and directions were given to the Government to convene meeting of concerned ministers of State for purpose of formulating policies for elimination of employment of children below 14 years and for providing necessary education, nutrition and medical facilities.

It was observed in both the case that it is through education that the vicious cycle of poverty and child labour can be broken. Further, well-planned, poverty-focussed alleviation, development and imposition of trade actions in employment of the children must be undertaken. Total banishment of employment may drive the children and mass them up into destitution and other mischievous environment, making them vagrant, hard criminals and prone to social risks etc. Immediate ban of child labour would be both unrealistic and counter-productive. Ban of employment of children must begin from most hazardous and intolerable activities like slavery, bonded labour, trafficking, prostitution, pornography and dangerous forms of labour and the like.

Also, in case of PUCL v. UOI and Ors children below 15 years forced to work as bonded labour was held to be violative of Article 21 and hence the children were to be compensated. The court further observed that such a claim in public law for compensation for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection of such rights.

However, Human rights experts criticise the scheme of payment of compensation envisage in Child labour act and further adopted by the Judiciary with gusto. They say that monetary compensation is like washing away ones conscious which still believes that if a child labour is sent to school he must be compensated for the amount which he might have got if he had worked instead. This only confuses the already divided opinion of the society today which still thinks that poor and needy children are better off working.


India has done well in enacting suitable legislations and policies to combat child labour. Nonetheless, its implementation at grass root level is very much lacking. The child labour laws today are like a scarecrow which does not eliminate child labour but only shifts it geographically to other places, to other occupations like agriculture which may be less paying or it might be still continued clandestinely. The lack of a specialised enforcement officer leads to lesser attention being given to child labour legislations. Furthermore, many of the child labourprogrammes remain poorly funded.

Child labour is a complex problem which cannot be eliminated without first attacking it at the roots. Thus, poverty, unemployment, lack of social security schemes, illiteracy and the attitude of society need to be tackled first before any progress can be made. A starting point can be to treat Child labour as a human rights problem and discouraging its manifestation in any form. If the society as such sees child labour as a social malaise, we will be much closer at achieving success.

Lastly, there is a lot of debate over the age from which child labour should be banned. The ILO conventions do not give a definite age, 14 years seems to be the general understanding but CRC defines a child to be below 18 years. Right to education is for children below 14 years and Child labour is prohibited till age of 14 years. This brings the question as to whether children of age 14-18 years are to be denied basic human rights and are to be left vulnerable.



Rainwater Harvesting as Government’s Public Policy Decision

Rain-water-harvestingEkta Gurjar


Urban centers in India are facing an ironical situation with regard to water today. On the one hand there is acute water scarcity and on the other, the streets are often flooded during the monsoons, reflecting managerial inefficiency of the urban local bodies to use the surplus water of the rainy season to overcome the deficiency in other seasons.

The shortage of ground water is more pronounced due to urbanization and limited open areas available for recharge of ground water. In some cities the ground water extraction has reached very high levels and has brought problems like declining water table, failure of wells/ tube wells and deterioration in ground water quality and quantity. Water is more often been seen as a cause for social conflicts, protests, demonstrations and road- blockades. In the given situation rain water harvesting can prove to be a solution for overcoming this scenario.

Rain Water Harvesting (RWH) has been in practice for more than 4000 years owing to the temporal and spatial variability of rainfall, in its broadest sense, a technique used for collecting and storing rainwater for human use from roof tops, land surfaces of rock catchments. Simply stated a water harvesting system collects and stores water within accessible distance of its place of use. The physical and chemical properties of rainwater are generally superior to the sources of groundwater that may have been subjected to contamination. Like other water resources, rain water harvesting is an option to be considered when planning for a community oriented water supply system. Depending on local environmental conditions, water harvesting may provide a supplementary supply, an alternative supply or the only feasible improved supply, especially in urban areas.

The current centralized water supply paradigm seems unsustainable and extremely high on energy consumption. As an alternative paradigm for more sustainable water availability harvesting rainwater, storing it in tanks, and recharging groundwater may be put in place. The first step could be to initiate domestic rooftop rainwater harvesting. In a house the highest point is the rooftop. However, common property resource issues have to be considered at larger level for rain water harvesting. The govt. has issued policy directives for encouraging this practice.

Rain Water Harvesting: Meaning and definition

Rainwater harvesting is the gathering, or accumulating and storing, of rainwater.

Rainwater harvesting has been used to provide drinking water, water for livestock, water for irrigation or to refill aquifers in a process called groundwater recharge. Rainwater collected from the roofs of houses, tents and local institutions, or from specially prepared areas of ground, can make an important contribution to drinking water. In some cases, rainwater may be the only available, or economical, water source. Rainwater systems are simple to construct from inexpensive local materials, and are potentially successful in most habitable locations. Roof rainwater is usually of good quality and does not require treatment before consumption. Household rainfall catchments systems are appropriate in areas with an average rainfall greater than 200mm per year, and no other accessible water sources (Skinner and Cotton, 1992).

There are a number of types of systems to harvest rainwater ranging from very simple to the complex industrial systems. Generally, rainwater is either harvested from the ground or from a roof. The rate at which water can be collected from either system is dependent on the plan area of the system, its efficiency, and the intensity of rainfall.

Basically rain water harvesting is the principle of collecting and using precipitation from a catchments surface. An old technology is gaining popularity in a new way. Rain water harvesting is enjoying a renaissance of sorts in the world, but it traces its history to biblical times. Extensive rain water harvesting apparatus existed 4000 years ago in the Palestine and Greece. In ancient Rome, residences were built with individual cisterns and paved courtyards to capture rain water to augment water from city’s aqueducts. As early as the third millennium BC, farming communities in Baluchistan and Kutch impounded rain water and used it for irrigation dams.

Systems of Rain Water Harvesting

There are a few systems of rain water harvesting. They include:

• Roof Catchments System

• Ground Catchments System

• Subsurface Dyke

• Ground water recharge

Roof catchments systems channel rainwater that falls onto a roof into storage via a system of gutters and pipes. The first flush of rainwater after a dry season should be allowed to run to waste as it will be contaminated with dust, bird droppings etc. Roof gutters should have sufficient incline to avoid standing water. They must be strong enough, and large enough to carry peak flows. Storage tanks should be covered to prevent mosquito breeding and to reduce evaporation losses, contamination and algal growth. Rainwater harvesting systems require regular maintenance and cleaning to keep the system hygienic and in good working order.

Ground catchments systems channel water from a prepared catchment area into storage. Generally they are only considered in areas where rainwater is very scarce and other sources of water are not available. They are more suited to small communities than individual families. If properly designed, ground catchments can collect large quantities of rainwater.

A subsurface dyke is built in an aquifer to obstruct the natural flow of groundwater, thereby raising the groundwater level and increasing the amount of water stored in the aquifer.

The subsurface dyke at Krishi Vigyan Kendra, Kannur under Kerala Agricultural University with the support of ICAR, has become an effective method for ground water conservation by means of rain water harvesting technologies. The sub-surface dyke has demonstrated that it is a feasible method for conserving and exploiting the groundwater resources of the Kerala state of India. The dyke is now the largest rainwater harvesting system in that region.

Rainwater may also be used for groundwater recharge, where the runoff on the ground is collected and allowed to be absorbed, adding to the groundwater. In the US, rooftop rainwater is collected and stored in sump. In India this includes Bawdis and johads, or ponds which collect the run-off from small streams in wide area.

In India, reservoirs called tankas were used to store water; typically they were shallow with mud walls. Ancient tankas still exist in some places.

Why Rain Water Harvesting?

Rainwater Harvesting is essential because:

1. Surface water is inadequate to meet our demand and we have to depend on ground water.

2. Due to rapid urbanization, infiltration of the rain water into the sub-soil has decreased drastically and recharging of ground water has diminished.

Rain Water Harvesting as a Government Policy

The Government has been promoting the adoption of ‘Rainwater harvesting’ as a mass movement. ‘Rainwater Harvesting’ is also an important component for achieving the goals of ‘Water Security’. ‘Shelter Security’ and ‘Ecological Security’ enunciated in the Hon’ble Chief Minister’s 15 Point programme. Universal adoption of Rainwater Harvesting by government departments, Non- Governmental organizations (NGOs) and

people would go a long way in improving the ground water levels in the states as well as in meeting the immediate requirements of the people for fresh water. Considerable success has been achieved in propagating the beneficial effects of Rainwater Harvesting and the Government departments, NGOs, industries and individuals are now involved in this task of Rainwater Harvesting. Several government departments have issued separate guidelines for the implementation of Rainwater Harvesting by their respective departments. It is, therefore, considered necessary, at this stage, to issue comprehensive guidelines to coordinate the activities of various agencies involved in Rainwater Harvesting to maximize the benefits and bring about synergy.

Comprehensive guidelines on Rainwater Harvesting in Tamil Nadu:

1. Nodal Department: The Municipal Administration and Water Supply Department shall be the Nodal Department for coordinating the efforts of various Government departments and agencies.

2. State level Coordination Committee: There shall be a state level coordination committee to review, monitor and issue policy directives to implement the programme of Rainwater Harvesting. The Chief Secretary will be the Chairman of the committee and the secretary, Municipal Administration and Water Supply department, will be the member-convener of the committee.

3. District level Coordination Committee: There shall be District level Coordination committees under the chairmanship of District collectors to guide, monitor, review and coordinate the activities at district level.

Roof water harvesting by Government departments/ Public Sector Undertakings/ Aided institutions:

1. All Government departments/ Public Sector Undertakings/ Aided Cooperative institutions buildings constructed hereafter shall provide for Rainwater Harvesting.

2. All departments shall prepare an action plan for equipping the existing buildings of the departments/ Public Sector Undertakings/ aided/ cooperative institutions with Rainwater Harvesting structures, within a period of 3 years.

3. Rented buildings occupied by the government departments/ Public sector undertakings shall also be provided with Rainwater Harvesting structures and the owners of the rented buildings shall be asked to complete the task within a period of 3 years.

4. The buildings mentioned in the 3rd point provided with Rainwater Harvesting structures, shall prominently display a signboard approved by the Municipal Administration and Water Supply department for this purpose, indicating that the building is provided with Rainwater Harvesting structures.

Rainwater Harvesting by the Public:

Both persuasive and legislative measures shall be used for ensuring the provision of Rainwater Harvesting structures in all buildings.

Information, Education and Communication (IEC):

IEC is an important component in persuading public to adopt Rainwater Harvesting. As they are the direct beneficiaries of these structures, more information dissemination will be sufficient to make them construct Rainwater structures. While the Chennai Metropolitan Water Supply and Sewage Board will be the nodal agency for the IEC campaign within the Chennai Metropolitan area, the respective district collectors shall coordinate the IEC activities in the districts.

Legislative Measures:

1. The Chennai Metropolitan Development Authority, all Municipal corporations, Municipalities, Towns Panchayats and the Directorate of town and Country planning shall approve by layout plans, building plans, etc., and leases of all building plans for new buildings only after confirming the inclusion of provision of Rainwater Harvesting structure in the proposed plans.

2. In the case of existing buildings efforts should be made by local body authorities to ensure that Rainwater Harvesting structures are put up in the buildings at the earliest.

3. No building or structure with roof shall be given permission for construction in the state, henceforth, without adequate provision for Rainwater Harvesting.

4. Water connection and Sewer connection shall not be given to any building which does not have Rainwater Harvesting structure.

5. Building that does not provide for Rainwater Harvesting either in urban or rural areas shall not be hereafter assessed to property tax.

6. Huts and thatched structures put up by families living below the poverty line shall be exempted from the above provisions.

Runoff Harvesting and Ground Water Recharge structures:

1. TWAD board shall identify locations suitable for ground water recharge that would benefit drinking water resources.

2. Similarly the water resource organization shall prepare a list of ideal locations for putting up groundwater recharge structures that would benefit underground aquifers and irrigation wells.

3. All department that construct water holding structures shall consult TWAD board/ Water Resource organization before taking up such works to ensure that such structures are put up in areas which will yield maximum benefits.

4. No water holding structures, like, tanks, ponds, swamps, etc., shall be converted for other purpose, nor shall their supply courses blocked or converted for any other purpose unless specifically permitted by the government or the competent authority.

5. The departments/ agencies responsible for the maintenance of the water holding structures shall ensure that the capacities of these structures are not reduced either because of encroachment or siltation or being put to alternate use.

6. Construction of runoff harvesting and runoff arresting structures in the flood prone areas should be accorded priority and a list of such locations should be prepared by the Water Resource organization in consultation with the special commissioner for Revenue Administration.

7. Storm water drains provided by the local bodies in the urban areas should ideally convey the storm water into temple tanks/ponds within the urban areas or should be let into a water body in the vicinity of the urban area. In the places where storm water is drained in the river/ water course, storm water drains must be so designed to inject the maximum quantum of storm water in to the ground before they outfall into river/ watercourse.

8. Involvement of local community and stake-holders in the maintenance is the best way to ensure the optimum maintenance and utility of these structures and the departments and agencies which construct these structures shall involve them from the planning stage itself and also ensure that the responsibility of maintenance of these structures is entrusted to them.



In 2002, the Ahmedabad Urban Development Authority (AUDA) had made rainwater harvesting mandatory for all buildings covering an area of over 1,500 square metres. According to the rule, for a cover area of over 1,500 square metres, one percolation well is mandatory to ensure ground water recharge. For every additional 4,000 square metres cover area, another well needs to be built.


In order to conserve water and ensure ground water recharge, the Karnataka government in February 2009 announced that buildings, constructed in the city will have to compulsorily adopt rain water harvesting facility. Residential sites, which exceed an area of 2400 sq ft (40 x 60 ft), shall create rain harvesting facility according to the new law.

Port Blair:

In 2007, Port Blair Municipal Council (PBMC) directed all the persons related to construction work to provide a proper spout or tank for the collection of rain water to be utilized for various domestic purposes other than drinking. As per the existing building by-laws 1999 the slab or roof of the building would have to be provided with a proper spout or gutter for collection of rain water, which would be beneficial for the residents of the municipal area during water crisis.


Rainwater harvesting has been made mandatory in three storied buildings (irrespective of the size of the rooftop area). All new water and sewer connections are provided only after the installation of rainwater harvesting systems.


The Kerala Municipality Building Rules, 1999 was amended by a notification dated January 12, 2004 issued by the Government of Kerala to include rainwater harvesting structures in new construction.

New Delhi:

The Central Ground Water Authority (CGWA) has made rainwater harvesting mandatory in all institutions and residential colonies in notified areas (South and southwest Delhi and adjoining areas like Faridabad, Gurgaon and Ghaziabad). This is also applicable to all the buildings in notified areas that have tube wells.

The CGWA has also banned drilling of tubewells in notified areas.

Indore (Madhya Pradesh):

Rainwater harvesting has been made mandatory in all new buildings with an area of 250 sq m or more.

A rebate of 6 per cent on property tax has been offered as an incentive for implementing rainwater harvesting systems.

Kanpur (Uttar Pradesh):

Rainwater harvesting has been made mandatory in all new buildings with an area of 1000 sq m or more.

Hyderabad (Andhra Pradesh):

Rainwater harvesting has been made mandatory in all new buildings with an area of 300 sq m or more.

Tamil Nadu:

Through an ordinance titled Tamil Nadu Municipal Laws ordinance, 2003, dated July 19, 2003, the government of Tamil Nadu has made rainwater harvesting mandatory for all the buildings, both public and private, in the state. It also warns the citizens on disconnection of water supply connection provided rainwater harvesting structures are not provided.


Haryana Urban Development Authority (HUDA) has made rainwater harvesting mandatory in all new buildings irrespective of roof area.

The CGWA has also banned drilling of tube wells in notified areas.


The state government has made rainwater harvesting mandatory for all public and establishments and all properties in plots covering more than 500 sq m in urban areas.


The state government has made rainwater harvesting mandatory for all buildings that are being constructed on plots that are more than 1,000 sq m in size.



Managing freshwater scarcity constitutes to be one of the biggest responsibilities of governance everywhere in the world, and thus, local management of this resource is an indispensable component. Many countries have national water laws. In India, however there are no national laws as such, though there is a national water policy. The National Water policy 2002 is a cogent and comprehensive document and forms a basis that could be converted into a law.

In India, under the constitutional set up, water is a state subject. In urban areas its governance rests with urban local bodies in their areas of jurisdiction as per the 74th constitutional amendment. The need for a policy framework for water harvesting systems arises mainly because the prevailing policy statements do not touch extensively upon the issue. There is a clear need to evolve a decentralized legal regime with regard to water, which empowers people and makes them real managers of resources. For promoting urban water harvesting, a policy should include a mix of incentives and penalties.

Ground water exploitation is inevitable is Urban areas. But the groundwater potential is getting reduced due to urbanization resulting in over exploitation. Hence, a strategy to implement the groundwater recharge, in a major way need to be launched with concerted efforts by various Governmental and Non-Governmental Agencies and Public at large to build up the water table and make the groundwater resource, a reliable and sustainable source for supplementing water supply needs of the urban dwellers.

Recharge of groundwater through storm run off and roof top water collection, diversion and collection of run off into dry tanks, play grounds, parks and other vacant places are to be implemented by Special Village Panchayats/ Municipalities /Municipal Corporations and other Government Establishments with special efforts.

The Special Village Panchayats /Municipalities/Municipal Corporations will help the citizens and builders to adopt suitable recharge method in one’s own house or building through demonstration and offering subsidies for materials and incentives, if possible.





Copyright Piracy: A Legal Divide

Copyright PiracyYashvardhan Rana


It is a well settled principle in the framework of the copyright laws, in the field of intellectual property rights, that one cannot trespass an exclusive right of the originator of a particular piece of work. The principle is in line with a renowned proverb that, ‘there are no free lunches in life’. No individual has got the right to benefit himself, at the expense of the long haul made by the original author, without acquiring the required affirmation of the latter or even accrediting him. It would simply amount to ‘theft’. On basis of this established principle, I would be discussing and analysing the two different landmark judgements, enshrined within the books of two diverse legal systems. The particular piece of work would depict an instance of contrasting treatment of a similar situation by the two judicial systems. The study would show as to how one legal establishment succumbed to committing multiple flaws, in road to passing of a shambolic verdict, shattering the very foundation on which the copyright laws were based, while the other hitting the bull’s eye, in preserving the sanctity of the same. The particular research model enumerates the theoretical aspect, pertaining to copyright laws, coupled with the detailed study of the U.S and the Indian legal establishments, via a critical analysis of the two landmark verdicts namely, ‘VIACOM vs. YouTube’ and ‘SCIL vs. YouTube’ respectively.

Case no.1:Viacom v. YouTube

Appellant – Viacom International, Inc.

Respondent– YouTube, Inc.

Decided on – June 23, 2010.

Citation- No. 07 Civ. 2103

Decided by – U.S. Federal court, San Francisco

Keywords: Copyright,Safe Harbor, rogue enabler, unlicensed, copyrighted material, pirated clips.

Case no. 2:SCIL vs. YOUTUBE

Appellant – Super Cassettes Industries (SCIL)

Respondents – YOUTUBE

Decided on – CASE PENDING

Decided by – Delhi High Court.

Keywords: subsisting copyright, ISPs, copyrighted songs, rank infringement, pirated content.


In the garb of Intellectual property rights, Copyright is a term that has been well established in law relating to an inventor’s exclusive right to protect his own work. Copyright is all about balancing the rights of authors with the rights of the public to use the work without seeking permission or paying royalties. Under copyright, authors have the right to control the use of their work subject to exceptions permitted under the law.

“Of all the creative work produced by humans anywhere, a tiny fraction has continuing commercial value. For that tiny fraction, the copyright is a crucially important legal device.” –Lawrence Lessig.

It is appropriate in law that rigid laws are made which can boost economic return on their creativeendeavours that in turn provides a vibrant industry in the fields of music, literature,films and software in particular.

In light of the above quote as put forth by L. Lessig, I would merely demand an answer to a simple query, “Why should I being an originator of a certain piece of work, give away my tough grind, for public usage, without even being accredited for the same?”

With this rhetoric statement forming the premise of my discussion, I would be dealing with the aspect of copyright and copyright infringement in detail.

Copyright is the legal protection given to the creator of an original literary or artistic work. It is the exclusive right granted by the law to creator of such original work, to do, authorize, or prohibit certain acts in relation to such work. Copyright law’s perennial dilemma is to determine where exclusive rights should end and unrestrained public access should begin. In the intellectual property domain every area has been given its due, whether it’s trademarks, patents or designs. Similarly, copyrights also enjoy an aura of unique standard, which in no manner should be tampered with.

Thus it assumes supreme importance for authors, artists, architects, composers, music production companies and producers, film production companies, computer programmers and designers.

In case of infringement (or copyright violation) it is the unauthorized or prohibited use of works covered by copyright law, in a way that violates one of the copyright owner’s exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works.The essence of a copyright infringement is the use of a work in relation to one or more rights of the copyright owner.

By giving a brief idea about the essence of copyright my intention of describing infringement of the same is of much importance as it would do a great deal to the reader.


Refers to a legal concept perpetuated by most governments by giving the creator of an original work exclusive rights,usually for a limited period of time. It is an intellectual property form applicable to any expressible form of an idea or information that is substantive and discrete.


It may well be applied to a wide range of creative, intellectual, or artistic forms, or “works”.

Copyright does not cover ideas and information themselves, only the form or manner in which they are expressed derives a sense of understanding with the nitty-gritties of a well -known fact of law. Meanwhile, other laws may impose additional restrictions that copyright does not-such as trademarks and patents.

They are laws which are standardised somewhat through international conventions on the basis of which all the rules and principles are applied within the scope of this form as it is mandatory for a member state to comply with them.


The on-going controversies over matters of copyright enforcement and piracy are infected by virulent strains of propaganda and misunderstanding. The entire issue is commonly framed as a battle between content creators and peer to peer file sharers. Let us take the two most extreme views, and refer to them by names they often choose for themselves. At one extreme, there are the defenders of “content owners” who either believe that copyright is a basic property right imperfectly embodied in law or who just believe that treating copyright that way is an important expedient that they should defend. At the other extreme, there are the “copyfighters” who believe that copyright is an authoritarian imposition, establishing harmful monopolies, either as corrupt and immoral support for capitalist plutocrats, or as unconscionable governmental interference in markets that should be free.

The copyfighter faction favours serving the consumer, often whether a given consumer has paid for what he or she consumes or not; strong protections provided by the legal doctrine of “fair use”; and free peer to peer file sharing. They sometimes characterize their counterparts as nothing more than corrupt politicians and fatcat corporate bureaucrats making obscene amounts of money doing nothing but taking egregious advantage of the financial and legal vulnerability of both actual content creators and content consumers.

Part of the propagandizing that goes on involves inventing new terms, or misapplying old terms, to confuse the nature of copyright law in the minds of the general public. By calling copyrightable and patentable materials “intellectual property”, for instance, there is a strong correlation drawn between copyright infringement and theft where no such correlation exists by nature. Contrary to the implications of terms like “intellectual property”, copyright is not a matter of property law : it is a government enforced monopoly on the manufacture and distribution of copies of a particular work. The key difference lies in the fact that in the case of copyright infringement a copy is made of the original without permission, while in the case of theft the original is actually removed from its possessor. This difference is recognized in law, by inculcating a different scenario in the minds of people as a truly acceptable form that one can relate to.

Regardless of one’s feelings about the matter of whether copyright enforcement is justified, it makes little sense to cover our ears, close our eyes, and ignore the facts that face us. In the end, if you want to make money by providing content for others’ consumption in years to come, you are going to have to start recognizing the increasing difficulty of maintaining a state of artificial scarcity enforced by copyright law. Strict copyright enforcement is not quite obsolete yet, but obsolescence is definitely nipping at its heels free to copy.

Another important fact that brings to our notice is that copyrights are generally enforced by the holder in a civil court, but there are also criminal infringement statutes applied in some jurisdictions.

The mechanism of establishing central registries are kept in some countries which aid in claims of proving ownership, registering does not necessarily prove ownership, nor does the fact of copying necessarily prove that copyright was infringed.


OWNER – Owner or author as defined under the act-

“Author” means –

• In relation to a literary or dramatic work, the author of the work;

• In relation to a musical work, the composer;

• In relation to an artistic work other than a photograph, the artist;

• In relation to a photograph, the person taking the photograph;

• In relation to a cinematographor sound recording the producer; and

• In relation to any literary, dramatic, musical or artistic work which is computer-generated, theperson who causes the work to be created;

The phrase “exclusive right” means that only the copyright holder is free to exercise those rights, and others are prohibited from using the work without the holder’s permission.

 There are several exclusive rights that typically attach to the holder of a copyright:

• To produce copies or reproductions of the work and to sell those copies (mainly electronic copies)

• To import or export the work

• To create derivative works (works that adapt the original work)

• To perform or display the work publicly

• To sell or assign these rights to others

• To transmit or display by radio or video


Copyright does not prohibit all copying or replication. In my view a new theory should be put into place that reconceptualises fair use as a collective user right in copyright law relating to public interest which has not yet unleashed its full energy to a certain extent.

There are four non-exclusive factors to consider in a fair use analysis. Those factors are:

I. The purpose and character of your use

II. The nature of the copyrighted work

III. What amount and proportion of the whole work was taken, and

IV. The effect of the use upon the potential market for or value of the copyrighted work.

The failure is caused by a firmly ingrained notion in copyright law that treats fair use as an affirmative defense against allegations of copyright infringements. Such a fixed characterization of fair use has led legislators and judges to define it as merely an individual right enjoyed by each user of copyrighted works. This characterization has further reduced fair use to a procedural right enjoyed by each user of copyrighted works, significantly diminishing the substantive value of fair use in protecting the public interest.

In my view, fair use should instead be redefined as a collective right held by the public which facilitates and enhances their participation in communicative actions which in turn provides a method to achieve the purpose of ensuring the public’s access to copyrighted material and promoting the public welfare. Therefore, copyright owners’ rights are not untrammeled; they are subject to important exceptions and limitations or, as itis called in the American system, the “fair use” doctrine.

With the coming of the digital era, there arises a conflict between the fact that new digital technologies provide incentive to the free flow of ideas, knowledge and information, and the fundamental design of copyright law which is to limit the unauthorized flow of copyrighted works.

In that context, “fair use” is more needed to promote User-Generated-Content (creative activity without a business structure); to promote remix, mash-up culture which can create a wider creative space; to ensure the freedom of speech (and freedom of expression in general); and to protect privacy.

Furthermore, the protection of created works and their creators must always be balanced with the guarantee of public interest and fundamental freedoms. Fair use is designed to maintain such balance. The growing use of contracts and application of technological measures may threaten the fair use doctrine thus cause an unprecedented break in the balance inherent in all intellectual property system.


Copyright piracy is a phenomenon prevalent worldwide and to that effect a highly important aspect in the area of research that I would be dealing in regarding the case-laws. It is considered to be the illegitimate use of materials held by the copyright. Thus like any other theft which leads to loss to the owners of the property, besides economic loss, piracy also adversely affects the creative potential of a society as it denies creative people such as authors and artists their legitimate dues primarily targeting the software, music and film industry.

Furthermore, the main area of research put forth in my generalised study would be dealing with the comparison of two important case-laws embarking a new set of dimension in this field of law.

U.S.Context: VIACOM vs. YouTube

Case background

An ideal legal system has to perform plethora of functions, in their quest to enforcement of justice and restoration of equality. The following case in discussion sketches a pivotal picture in the books of justice. As far as the theoretical aspect of the case is concerned, it undoubtedly carves out a niche for itself, due to its negative impact upon the law professionals and legal aspirants.

The case enshrines a perfect reflection of the fact that, even the best legal systems at times, succumb to err in their judgement.

The verdict delivered by Justice Stanton within the confines of the U.S. Federal court, blessed the unethical state of play on the internet. It completely tormented the very foundation on which the copyright laws were based. It attacked one of the cornerstones of the Intellectual Property Rights, by favouring the respondents, in regard to their acts which set the exclusive rights of the petitioner on recluse.

Facets of the case

Viacom, an owner of a popular cable channel such as-MTV, Comedy Central, Nickelodean had filed an appeal against Google, an established internet service engine. The allegations levied against the respondents was that YouTube, a component of Google had built up its reputation as the most gauged site, by milking unlicensed use of copyright protected video clips obtained from professionally produced shows such as-The Colbert Report and The Daily Show, thereby causing huge monetary loss to the parent company. On the pretext of this contention, the appellant seek damages.


Various allegations were levelled and were simultaneously countered, in this particular case, which ran for a span of over 3 years. I would however, confine my discussion to, stating the contentions put forth by Viacom’s general counsel and their respective treatment by the District Judge, Louis Stanton.

Viacom’s lawyer Michael Fricklas,disputed that YouTube, an entity of Google was engaged in rampant copyright violation, when he stated “Mostly YouTube behaves”.

The major allegations levied by the counsel, on behalf of appellant was that, copyright protection is essential for the survival of the creative industries and it should be considered illegal, if others build their market, via the material stolen from them.

Moreover, he went a step ahead, accusing YouTube of having Malafide intentions, in not trying its level best to keep the illegal content off its site, with the aid of copyright protection tools.

In response to the allegations levied by Viacom, Justice Stanton in favour of Google, stated that the respondents have not indulged in any copyright violation after they virtually removed all the copyright protected clips in compliance with the mass takedown notice, slapped upon them by the appellant.

He also inferred that the claim put forth by the media company may merely be a case of sour grapes, as they were defeated in their quest to overtake YouTube.


The U.S. Federal Court benched at San Francisco delivered its verdict in favour of the respondents, Google. It dismissed the lawsuit before the trial, on the ground that YouTube had acted bona fide, in removing the illegal copyright protected material in response to the mass takedown order, slapped upon them by the owner, thereby, refraining themselves from constituting any copyright infringement.

Critical Analysis

The case would undoubtedly go down the history books as being one of the darkest chapters of the U.S. legal system. It was definitely a shambolic experience. The err in judgement was not committed once, but twice.

The gravity of the verdict delivered by the court was immense. It rendered the copyright laws a stature of being a facade. The judgement was passed, interpreting that no infringement occurs if the illegal content is promptly removed, when notified of a violation. This however fails to negate the fact that an infringement has already taken place and, even worse an exclusive right has already been trespassed.

According to me, the U.S. Federal court, failed to preserve the sanctity of the copyright principles. My assertion is based upon the following instances from the case itself;

When the court based its judgement, upon the interpretation of a 12 year old law that no copyright infringement occurs as far as the illegal content are promptly removed when notified of a violation, it fails to realise that a violation has already taken place. To make it even worse, the exclusive rights of the originator is already tampered with. YouTube had Ab-initio indulged into copyright infringement by broadcasting the professionally created videos of Viacom, without obtaining their required affirmation or reimbursing them in form of any royalty.

Also, in an embarrassing chain of events that culminated before the court, there was clear evidence depicting the owners of the disputed site, personally to have been involved in the process of infringement. The evidence, basically was an e-mail, written by one of the co-owners of the site, Chen to his partner, jawed, requesting the latter to refrain himself from uploading stolen videos on the site, as it would make it very difficult for them to prove their innocence. Thus, it’s crystal clear, that the owners had knowingly committed an offence of theft.

YouTube, on being sold to Google had developed a system that helps flag copyright violations, when videos are posted. But, herein, YouTube fails to appropriately implement the copyright detection tools and intentionally succumbs to uploading the illegal content on its site. This validates the presence of Mens Rea on the part of the respondents.

Moreover, YouTube deprives Viacom of their deserved dues, by showcasing their professionally created videos, without obtaining any licence or reimbursing them, in form of a royalty. Thus, they go about minting money, through the hard toil, made by the originator, Viacom, without even accrediting them.

Finally, apart from Viacom, there are various other instances wherein, other search leader’s own executives have gone to the extent of branding the video sharing service, ‘a rogue enabler of content theft’. This was in accordance with the documents unearthed in other copyright cases.

Indian Context: SCIL vs. YouTube

Case background

While the US approach, to copyright laws, as discussed earlier, turned out to be a muddled one, resulting this case be deemed as a revolution.

The Delhi High Court has, in its own way done a huge favour, to the copyright laws & principles. The judgement passed by the court is apt in this case, as it deems to have been spot on, in preserving the exclusive rights of the copyright owners & thereby restoring their faith in the legal system. This also sets up an ideal example for the evolving legal aspirants & established law professionals.

Facets of the case

SCIL, an owner of a reputed music label, T-series, moved the Delhi High Court against the respondents, YouTube, a component of Google, on account of rank infringement. Basically, YouTube LLC & its parent Google Inc. have on their website (, been showing aides& SCIL’s copyrighted songs without acquiring any Licence or permission. Thus they seek damages.


Under this head, I would be elucidating the grounds which might have favoured YouTube in evading copyright infringement, in consonance with the arguments put forth by the Delhi high court, in support of the injunction order passed by them against the respondents.

YouTube might have contended that they were not liable for any copyright violation, on account of their user policy which is published, whenever a new user try to upload any content on its site. It basically, prompts the individual that he should not upload any content, which has not been obtained with due affirmation from the concerned owner. It lays down the guidelines for the users in compliance of which, he may deter himself from committing theft.

Also, the respondent may bring into the picture, the aspect of performing a technically impossible task of creating filters, that would restrict the uploading of over 300000-500000 illegal content on their site.

On the contrary, the prime reason put forth by the court in support of the injunction order passed , was that YouTube had depicted a mala fide intention of making profits at the expense of SCIL, by broadcasting their songs for free to the public, coupled with displaying advertisements and collecting revenue from the same.

It also brought into light the malignant nature on the part of YouTube, in showcasing SCIL’s songs for free, which resulted in forcing the appellant into severe loss on its revenue, accruing from the sale of CDs, DVDs and audio cassettes.


The Delhi High Court passed an order of interim injunction, against the business practices of YouTube &its parent company Google, restraining them from making any profits at the expense of rightful copyright owners. They were barred from reproduction, adaptation., transmission, distribution, or displaying on their website or any other manner, any audio visual works in which SCIL owns exclusive, valid or subsisting copyright.


In my opinion, the Delhi High Court has hit the bull’s eye, in this instance, by passing an interim injunction against the illegal & unethical business practices of YouTube & its parent co., Google. They have succeeded in re-enforcing the certitude of the owners of the copyright works in the legal system, by assuring them the preservation of their Copyright exclusive rights. This therefore, would also buoy advancement of art & science.

I would support my stance, in the light of the following reasons;

YouTube, along with its parent Co. Google have undoubtedly indulged themselves into copyright violation, by displaying copyright – protected audio & videos, without obtaining required license for the same, from the concerned owners.

Further to outline, YouTube had also displayed its Malafide intentions of minting green paper, using hard toil done by SCIL’s music label T-Series, by not only showing their songs for free to the public, but also displaying advertisements & collecting revenues from the same.

Similarly it had forced SCIL into incurring huge losses, by broadcasting their songs for free to the public, Basically, SCIL’s revenue is generated from the manufacturing of DVD’s, CDS, & audio cassettes and from royalties collected by licensing their original work to hotels, restaurant, telecom operators & internet services. Now, if the public has acquired a free access to their work, why would they opt paying for the same. Thus their scope of generating revenues out of their own work, has been reduced to zilch.

Also its important to understand the hypocrite nature of Google, when they contend that its technically impossible for a website worth $158 billion to make filter, restricting the upload of 300000 to 500000 illegal contents, where on the contrary various minor sites sales manage to restrict the same.






Ektaa Jha

Consumer Protection Act, 1986 was enacted for better protection of the interests of consumers. The provisions of the Act came into force with effect from 15-04-1987.The Act intends to provide simple, speedy & inexpensive redresses to the consumer’s grievances.

In India various Acts intended to protect the consumers against different forms of exploitation were enacted, such as, the Indian Penal Code, 1860; Indian Contract Act, 1872; Indian Standard Institution(Certification marks) Act, 1952,etc.

The Consumer Protection Act is an alternative and cheapest remedy already available to the aggrieved persons by way of civil suit. In the complaint or appeal the consumer does not have to pay any court fees under this Act.


CONSUMER: A person who buys any goods for a consideration and user of such goods where the use is with the approval of the buyers. Service of any description is covered under Consumer Protection Act & includes banking, financing, insurance, processing, housing, construction, board and lodging, among others.


How to file a consumer complaint?

A complaint can be filed by

-the consumer to whom the goods are being sold or services are provided

-any recognised consumer association

-one or more consumers with same interest

-the central government or state government

Further process of filing complaint-

Stage 0: Decide to file

This problem occurs when a consumer has been ignored, insulted or cheated from the company by whom you bought a product is helplessness, anger or revenge.

Consumer daddy i.e. the consumer court understands these emotions. But unfortunately the consumer court of our country is one of the most putrid, decadent, impersonal and sluggish system in the world.

Whatever your decision is regarding filing the complaint at consumer court, consumer court encourages the consumer to take few steps to ensure that the company will pay back its mistake, i.e.

Filing the complaint at consumer court website, filing the complaint at other popular consumer blogs in India, filing the case at local police as applicable, opting to move to the lok adalats, filing a complaint with state Human Rights Commission, etc.


Stage 1: Collect necessary documentation

Before a consumer complaint can be filed against a company, you need to ensure that you have all the supporting documentation that you need. Documents such as-

#invoice or bill for the purchase

#warranty card for product and SLA for services

#proof of the payment such as copy of the cheque or credit card statement

Or, any other documents which can show the negligence, insensitivity or lack of attention from the company.

In case you cannot get a copy of the bill, do not worry or feel helpless. Most of the billed purchases are entered into the ledger and accounting books of the company.


Stage 2: Send the notice to the company

In this step, you will be required to ‘officially’ notify the company of your grievance. Be detailed about what it is that you are complaining about and what you expect the company to do.

Points to be taken in the notice-

#providing clarity to the company on the nature of your grievance

#providing clarity to the company on how you expect the company to solve your complaint

#particular time should be given within which the grievance should be rectified

#provide a polite and stern notification that you intent to pursue the matter legally

Accordingly, the company will respond to your notice with the willingness to resolve your problem.


Stage 3: Get legal representation

The consumer court does not have a take on this. There is both advantage and disadvantage of having an advocate or a lawyer to represent you.

Advantage of having or hiring lawyer is that you do not need to read the remaining of this boring article. The advocate will know what to do from here on.

The biggest disadvantage of hiring a lawyer is that good ones don’t come free.

If you decide to get a legal representation, then the remaining steps will be followed through by your lawyer.

Stage 4: Prepare you complaint

Few important things which should be kept in mind while preparing the complaint.

How much time do I have?

The consumer protection act 1986, clause 24(1) a consumer court shall not admit a complaint unless it is filed within 2yrs on which the cause of action arisen.

Which court should I file the complaint in?

Depending upon the compensation you are filing for choose an appropriate courts. If the total amount in your complaint is below Rs.20lakhs, you must file the complaint with the District Consumer Dispute Redressal Forum. If it is between Rs.20lakhs and Rs.1crore than you must file the complaint with the State Consumer Disputes Redressal Commission and if it is more than Rs.1crore, than you must file the complaint with the National Consumer Disputes Redressal Commission.


Stage 5: File your complaint

Along with the complaint and the affidavit, attach a list of documents you are submitting as part of the complaint file. Ensure that you attach photocopies of the evidentiary documents and not the original. You also need to sign and attach a VAKALATNAMA, which is similar to a power of attorney authorizing your lawyer to represent you in court on this case, should you decide to hire a lawyer.


Stage 6: Attend the Admission Hearing

Till this point you have got a rosy picture of the concept of consumer protection in India. Most of the consumer courts such as District Consumer Redressal Forum in the country operate from shacks that are in high probability a little, if not any, better than a cattle shed. Also, it is a public secret that merely depositing the court fee will not get you a complaint reference number nor the admission hearing dates. You will also need to pay the unofficial “fee” or the bribe to the court desk.

We highly recommend that you do not miss the admission hearing or the subsequent hearings as if you are absent, your case will be decided in your absence based on its merits. It is recommended to spend a whole day in the court as it is difficult to predict when your case will be called for hearing. When called to the court, ensure that you are earnest in your appearance and polite, respectful, and stern in your tone of voice.

Typically, the judge will review your case file. Judges may ask you to give an explanation of the problem and what solution you seek. Be sure to explain the case in short and precise manner and also remember do not contradict on what have you written in your complaint. Judges using these ways may ask you short questions to clarify the merits of your case. Be short and precise in your answer. The judge may ask you for additional evidence or the original documents if there are any disputes regarding the authenticity of the documents. If this is the case, ensure that the documents are handed only to the court officials and not to any complain official.


Stage 7: Attend Subsequent hearing till the Verdict

This depends on the complexity of your case, and the number of times the judge wants to postpone or conduct hearings. It could be anywhere from one to seven hearings before which your case is disposed. Be sure to attend each hearing. The consumer court will finally reach a verdict on your case and will send you and the company the court orders. If the verdict is in your favor, you may be eligible for a refund, and the company may also have to pay for punitive damages that include compensating you for any mental agony, insult, inconvenience, or damage you may have suffered. In many cases, the court will also direct the company to pay for your legal and court expenses.

Stage 8: After the Verdict

Most lawyers will tell you that your actual legal battle with a company starts only after you obtain a verdict from a consumer court. Consumer court system in our country has no stalwart statutory powers to enforce their verdicts on any company. If the company does not follow the verdict of the consumer court, and neither does it file appeal within 30 days, to get a company to abide by the verdict of a consumer forum, you will have to file another proceeding to “execute the verdict” in the consumer court. Put simply, after you get a verdict from a consumer court, you will have to approach it again to issue a judgment to the company to follow the verdict of the consumer court or to face other civil and criminal penalties including attachment of properties or arrest. Sadly, this could mean another 2-5 years of your life fighting a legal battle against this company to remedy your problem.


Consumers play a vital role in the economic system of a nation because in the absence of effective demand that emanates from them, the economy virtually collapses. Mahatma Gandhi said, “A consumer is the most important visitor on our premises. He is not dependent on us, we are on him. He is not an interruption to our work; he is the purpose of it. We are not doing a favour to a consumer by giving him an opportunity. He is doing us a favour by giving us opportunity to serve him. But, of late, unfortunately cheating by way of overcharging, black marketing, misleading advertisements, etc has become the common practice of greedy sellers and manufacturers to make unreasonable profits. In this context, it is the duty of the government to confer some rights on consumers to safeguard their interests. Consumers are a vulnerable lot for exploitations, more so in a developing country with the prevalence of mass poverty and illiteracy. India too is no exception to it. Procedural simplicity and speedy and inexpensive redressal of consumer grievances as contained in the CPA are really unique and have few parallels in the world. Implementation of the Act reveals that interests of consumers are better protected than ever before. However, consumer awareness through consumer education and actions by the government, consumer activists, and associations are needed the most to make consumer protection movement a success in the country.




Consumer Protection Act in India

It is not exactly the copy and paste from these sited but have taken some help from these sites.

Succession to the property of a Hindu Male

Succession to the propertyThe Hindu Succession Act, 1956, is a law that was passed by the ‘Parliament of India’. The preamble of the Act signifies that an Act to amend and codify the law relating to intestate succession among Hindus. The Act lays down a uniform and comprehensive system of succession whereas attempt has been made to ensure equality inheritance rights between sons and daughters. It applies to all Hindus including Buddhists Jains and Sikhs. The Hindu Succession Act, 1956 preserves the dual mode of devolution of property under the Mitakshara School. The joint family still devolves by Survivorship with this important exception that if a Mitakshara Coparcener dies leaving behind mother, widow, daughter, daughter’s daughter, son’s daughter, son’s son’s daughter, son’s widow, son’s son’s widow, or daughter’s son his interest in the joint family property will devolve by succession.

Succession to the property of a Hindu Male

The Hindu Succession Act, 1956 deals with the inheritance to

a) The separate properties of a Mitakshara male,

b) The separate and coparceners properties of a Dayabhaga male, and

c) The undivided interest in the joint family property of a Mitakshara Coparcener.

The Act does not apply to the property of a Hindu who is married under the Special Marriage Act to a non -Hindu.

Heirs of a Hindu Male

The heirs of Hindu male fall under the following categories:-

1) Class I heirs,

2) Class II heirs,

3) Agnates,

4) Cognates, and

5) Government.

Class I heirs:-

The property of a Hindu Male dying intestate would be given first to heirs within Class I. They are:

i. Mother,

ii. Widow,

iii. Daughter,

iv. Son,

v. Widow of a predeceased son,

vi. Son of a predeceased son,

vii. Daughter of a predeceased son,

viii. Widow of a predeceased son of a predeceased son,

ix. Daughter of a predeceased son of a predeceased son,

x. Son of a predeceased son of a predeceased son,

xi. Daughter of a predeceased daughter, and

xii. Son of a predeceased daughter.

Some new heirs are added by Hindu Succession (Amendment) Act, 2005. They are:

i. Son of a predeceased daughter of a predeceased daughter,

ii. Daughter of a predeceased daughter of a predeceased daughter,

iii. Daughter of a predeceased son of a predeceased daughter, and

iv. Daughter of a predeceased daughter of a predeceased son.

Shares of Class I heirs :

Section 10, Hindu Succession Act deals with the distribution of the property of the propositus, among class I heirs. The rules are:

A.] Sons, daughters and the mother of the propositus each take one share.

For example:-

If ‘P’ dies leaving behind his Mother ‘M’, two sons S1 and S2 and two

Daughters D1 and D2, each of the above heirs will take one share, i.e., 1/5th

-‘M’ will take 1/5th ;

– D1 and D2 each will also take 1/5th &

– S1 and S2 each will take one fifth.

B.] Widow takes1 share. If there are more than one widow, all of them together take one

Share and among themselves they divide it equally.

For example:-

‘P’ dies leaving behind a widow, ‘W’ and three daughters ‘D’, ‘D1’, and

‘D2’. Here each will take one share, i.e. 1/4th to each.

-‘W’ will take 1/4th,

-‘D’, ‘D1’ &‘D2’ each will take 1/4th .

C.] Among the heirs of the branches of a predeceased son, son of a predeceased son of a

Predeceased son and predeceased daughter, so here the doctrine of representation applies

i.e. heirs in each branch would take the same share which their parent would have taken.

So, we see above three rules in the following example:

If ‘P’ dies leaving behind son ‘S’, widow of a predeceased son ‘S1’, ‘SW’,

Predeceased daughter’s son and daughter ‘DS’ and ‘DD’, predeceased son’s

Predeceased son’s widow ‘SSW’, his daughter ‘SSD’ and his son ‘SSS’.

Distribution is first to be made at a place where branches come into existence.

There are four branches, each will take 1/4th share i.e.

– ‘S’ will take 1/4th .In the branch of ‘S1’ there is only one heir ‘SW’, she

representing ‘S1’ will take 1/4th .

– In the branch of predeceased daughter, there are two heirs, they representing her

will take 1/4th and between themselves divide it equally, with result that ‘DS’

will take 1/8th and ‘DD’ will take 1/8th .

– In the branch of predeceased grandson, there are three heirs, representing him

they will take 1/4th & among themselves share it equally, with the result that

‘SSW’, ‘SSD’&‘SSS’ each will take 1/12th.

Class II heirs and their shares:

If there are no heirs in Class I, the property will given to the heirs within Class II. They are divided into nine categories. The rule is that an heir in an earlier category excludes heirs in later category. Further all heirs in one category take simultaneously per capita share. They are as follows:

1] Category I –

a) Father.

2] Category II –

a) Son’s daughter’s son.

b) Son’s daughter’s daughter.

c) Brother.

d) Sister.

3] Category III –

a) Daughter’s son’s son.

b) Daughter’s son’s daughter.

c) Daughter’s daughter’s son.

d) Daughter’s daughter’s daughter.

4] Category IV –

a) Brother’s son.

b) Brother’s daughter.

c) Sister’s son.

d) Sister’s daughter.

5] Category V –

a) Father’s father.

b) Father’s mother.

6] Category VI –

a) Father’s widow. [Step mother].

b) Brother’s widow.

7] Category VII –

a) Father’s brother.

b) Father’s sister.

8] Category VIII –

a) Mother’s father.

b) Mother’s mother.

9] Category IX –

a) Mother’s brother.

b) Mother’s sister.

The rule of share in Class-II heirs is that each will take per capita including widow.

Agnates and Cognates:

Next heir of Hindu male is ‘Agnates and Cognates’. In it first preference is given to ‘Agnates’ & then ‘Cognates’. The rules for determining who are agnates & cognates are the same; so are the rules relating to distribution of property among them.

Agnates mean when a person traces his relationship with another through males, he or she is an ‘Agnates’. For instance brother, brother’s son, son’s son, son’s son father, father’s father, father’s mother, father’s father’s father & mother, son’s daughter, son’s son’s daughter………. etc are agnates.

On other hand cognates means whenever in the relationship of a person with another, a female (or more than one female) interverence anywhere in the line, one cognate to another. For instance sister’s sons & daughters; daughter’s sons & daughters; mother’s mother & father; father’s mother’s father & mother; mother’s father’s son & daughter………..etc are all cognates.


If a Hindu male leaves behind neither class I, nor class II, nor any agnates, nor any cognates upon his death, then, his entire property lapses to the government. This is called as “Escheat”. When government takes his property as heir, it takes with subject to all the obligations and liabilities of propositus.

Succession to a Mitakshara Coparcener’s Interest

The Section 6 of the Act has been extensively amended by the Hindu Succession (Amendment) Act, 2005; while recognizing the rule of devolution by Survivorship among the members of the coparcener makes an exception to the rule in the proviso.

According to proviso, if the deceased has left a surviving female relative specified in class I or a male relative specified in that class who claim through such female relation, the interest of a deceased in Mitakshara Coparceners property shall devolve by testamentary of instate succession under the Act and not as Survivorship.

Certain exceptions:-

If , and the heirs are both male and female, the female heir is not allowed to request partition until the male heir chooses to divide their respective shares. If this female heir is a daughter, she has the right to reside in the home if she is unmarried, divorced or widowed.

After the Hindu Succession (Amendment) Act, 2005; Section 6, the difference between the female and male inheritor has been abolished . Now even female inheritor [daughter] can also claim partition of the ancestral property.

Further any person who commits murder is disqualified from receiving any form of inheritance from the victim.

If a relative converts from Hinduism, he or she is still eligible for inheritance.


The Hindu Succession (Amendment) Act, 2005, amended Section 6 of the Hindu Succession Act, 1956, allowing daughters of the deceased equal rights with sons. In the case of coparcenary property, or a case in which two people inherit property equally between them, the daughter and son are subject to the same liabilities and disabilities. The amendment essentially furthers equal rights between males and females in the legal system.

With the reference book: – ‘Family Law’ of Dr. Paras Diwan.






“Land, that is to say, rights in or over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; land improvement and agricultural loans; colonization” is covered in Item 18 of List II- State List.,Seventh Schedule of the Constitution. So the laws on rent control and eviction throughout the country vary from one State to other, having some common features. The interpretation of the law of one State enables to interpret the similar provision, existing in law of the other State. The Apex Court has forged ahead in various fields including the eviction laws.

Principle of harmonization of interests of landlord and tenant

In Malpe Vishwanath Acharya & Ors v. State Of Maharashtra(infra), the Court was of the view that  In so far as social legislation, like the rent control act is concerned, the law must strike a balance between rival interests and it should try to be just to all. The law ought not to be unjust to one and give a disproportionate benefit or protection to another section of the society. When there is shortage of accommodation it is desirable, nay, necessary that some protection should be given to the tenants in order to ensure that they are no exploited. At the same item such a law has to be revised periodically so as to ensure that a disproportionately larger benefit them the one which was intended is not given to the tenants.

In Amarjit Singh vs Smt. Khatoon Quamarain (infra), it was observed that The Rent Restriction Acts deal with the problem of rack renting and shortage of accommodation. It is in consonance with the recognition of the right of both the landlord and the ten- ant’that a harmony is sought to be struck whereby the bona- fide requirements of the landlords and the tenants in the expanding explosion of need and population and shortage of accommodation are sought to be harmonised and the conditions imposed to evict a tenant are that the landlord must have bona fide need.


Various judgments interpreting eviction provisions

Statute in question

Title of case

Judgment decided in favour of

Decision of the Court

Suggestion of the Court

(if any)

 Delhi Rent Control Act, 1958 Gian Devi Anand v. Jeevan Kumar and Ors.

1985 (2) SCC 683


Tenant and his heirs The mere fact that in the Act no provision has been made with regard to the heirs of tenants in respect of commercial tenancies on the death of the tenant after termination of the tenancy, as has been done in the case of heirs of the tenants of residential premises, does not indicate that the Legislature intended that the heirs of the tenants of commercial premises will cease to enjoy the protection afforded to the tenant under the Act. The Legislature could never have possible intended that with death of a tenant of the commercial premises, the business carried on by the tenant, however flourishing it may be and even if the same constituted the source of livelihood of the members of the family, must necessarily come to an end on the death of the tenant only because the tenant died after the contractual tenancy had been terminated. It suggested that Legislature may consider the advisability of making the bona fide requirement of the landlord a ground of eviction in respect of commercial premises as well.
Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 Rattan Arya Etc. v. State Of Tamil Nadu & Anr.

1986 (3) SCC  385 

Tenants Tenants of both kinds of buildings equally need the protection of the beneficient provision of the Act.

Section 30 (ii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 struck down being violative of Art. 14 of the Constitution.

Delhi Rent Control Act, 1958 Amarjit Singh v. Smt. Khatoon Quamarain

1986 (4)

 SCC 736

Tenant The philosophy and principle of rent restriction law have nothing to do with the private exploitation of property by the owners of the property in derogation of the tenant’s need of protec- tion from eviction in a society of shortage of accommodation.
The East Punjab Urban Rent Restriction Act, 1949 and

East Punjab Urban Rent Restriction (Amendment) Act, 1956

Harbilas Rai Bansal v. The State Of Punjab & Anr.

1996  (1) SCC  1

Landlord A landlord – under the Act – can seek eviction of a tenant from a non-residential building on the ground that he requires it for his own use.

East Punjab Urban Rent Restriction (Amendment) Act, 1956 taking away  the right of  landlord to seek eviction of his tenant from a non-residential premises declared as

constitutionally invalid.

Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 Malpe Vishwanath Acharya & Ors v. State Of Maharashtra

(1998) 2 SCC 1

Landlord Decision of the High Court upholding validity of the impugned provisions relating to standard rent was not correct. Any further extension of the existing provisions without bringing them in line with the views expressed in this judgment would be invalid as being arbitrary and violative of Article 14 of the Constitution. We hope that new Rent Control Act will be enacted with effect from 1st April, 1998 keeping in view the observations made in this judgment in so far as fixation of standard rent is concerned.
East Punjab Urban Rent Restriction Act, 1949 Rakesh Vij v. Dr. Raminder Pal Singh Sethi and others


SCC 504

Landlord The Act has to be interpreted in a just and equitable manner. To completely deprive a landlord of his right to seek eviction of a tenant from a non residential building even on the ground of his own use for all times to come would be highly unjust and inequitable to him.
Delhi Rent Control Act, 1958 Satyawati Sharma (Dead) by LRs . v. Union of India and another

2008 (5) SCC 287

Landlord Section 14(1)(e) of the 1958 Act is partly struck down. Section 14(1)(e) may read as under :- “that the premises are required bona fide by the landlord for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable accommodation.”





Justice Delayed Justice Denied

I acknowledge that people are losing faith in judiciary. It is mainly because of long delays at all points, the reluctance of all the adjudicators to give the adjudications and the inevitable adjournments. That is why people are approaching the mafia which believes in out summary justice.

Law is a benevolent profession. Lawyers and Courts have always been the last refute for the helpless and the despoiled litigants. But of late there is attrition of people’s, trust and faith in the Indian judicial system. The main cause for such attrition is jobbery (corruption) and delays. The allegation of jobbery is the first cause for the deteriorating functioning of the judiciary.

The primaryreason of delay is corruptionamong the premier judges. A few days ago, the judges of the Allahabad High Court found themselves being described in less than flattering words. The criticism stung even more because it came from the Apex court. The Supreme Court on Nov 26, 2010 ordered the Allahabad High Court’s Chief Justice to check some of the corrupted judges. For several years there had been babbles of discontent with functioning of the superior judiciary. Even authoritative seats had been heard saying that. For citation, a formerreputed Chief Justice of India, Justice Venkataramiah, speaks of High Court adjudicators going to their wealthy friends or to embassies in search of drinks. Another former reputed judge of the country’s premier court, mentioned several ways of judicial jobbery and also it is raised that once in a mean while costly benefits are given to some of the premier judges and munificentparties are arranged for them.

One of the major reasons why these Parliamentarians don’t make amendments to the law is because each one of them has at least two to three cases in their name. For example, a Dalit girl from Banda was allegedly raped by a BSP MLA Purushottam Naresh Dwiwedi. Parliament’s inability to elucidate Adarsh scam involving former Maharashtra CM Ashok Chavan, CWG scam involving MP Suresh Kalmadi, another land scam involving Honorable Karnataka Chief Minister BS Yeddyurappa and the mother of all scams involving former telecom minister A Raja causing nearly loss of 1.76 lakh crore to the exchequer was indirectly one more reason for the delay in the justice. Of late allegations of corruption have been raised against DinakaranHonorable Chief Justice of Karnataka HC on his elevation to the Apex Court has left many questions unanswered for those who raised the allegation.

Another cause for delay in adjudication is the code of conduct of judges. For example one of the judges of Gujarat HC once slapped on the face of one of his fellow workers after which Apex court had to intervene to resolve the issue by transferring one of the judges to some other states. In the recent times during Reliance case was going on one of the judges of the Apex Court showed his inability to sit on the bench with another judge when the hearing of the case was on the next date. A few years before furious attorneys danced on the tables in the Court room of the Chief Justice of Delhi HC, and interrupted the operations of all other judges. In the present situation, repeat of such thing cannot be ruled out and it cannot be expected the early delivery of the adjudications in these situations. It’s true that even Apex court’s best defense Contempt of court cannot prevent them from performing such activities again.

One more reason which causes the delay in adjudications is the century old modus operandi assumed by the judiciary of this country. That modus operandi resulted in thousands of pending cases. Gujarat Riots Case is an example of it. In Ruchika case, that poor girl Ruchika committedsuicide while awaiting justice as it took 19 long years after allto enter F.I.R.

One more cause of the delay in the justice is the approach of the lawyers towards the case. There should be LAW or Rule that the case cannot be postponed beyond three/four times. Lawyer asking for date extension on silly grounds (including chest pain or admitted to ICU) must be heftily penalized than only can one expect real justice

Over and over again shortage in the number of judges in the courts is seen as a cause for the delay in justice. Even the Law Commission did make many observations in this aspect which were also supported by the Chief Justice of India


There is an immense feeling that when a person approach a court to seek justice and to get rid of his problem but as a result there is a immense delay in seeking justice, in spite of such delay remedy provide could not satisfy the need of such situation. This is because Justice is being delayed and curbed due to serious pendency of cases and workload in the Court. The ultimate reason for any type of judicial discipline is to maintain public confidence in the judiciary. The reason behind this principle is easy. A legal system can function only as long as the public accepts and abides by decisions rendered by the courts; the public will accept and abide by these decisions only if it is convinced that the judges are fair and impartial; anything that tends to weaken that conviction should be avoided. In other words, justice must not only be done, but must also appear to be done.

I just want to express the miserablecondition of affairs in India in regards to the law. The major problem is that our Indian law is too lenient and trials are taking too much time. I just can’t realize the cause as to why would any case take more than ten years to get over, this includes almost each and every case from the highest to the lowest ( example: the Mumbai bomb blast 1992; it took over 12 years to come to a transitory conclusion, because the accused can still plea).

If I am over fifty, I can go ahead and kill some person and can delay the case till I die of natural death. So by the time the verdict comes that I am guiltyI would have long gone to my death. So hypothetically I would go Scott free.


Why can’t we have more judges and why can’t a person get justice in a year or two. All thepoliticiansare busy with the quota and other useless things when they fail to realize that the JUSTICE is the most basic right of Indians. I bet Mohammed Ajmal Amir Kasab the lone surviving 26/11 terrorist’s trail is going to go on for at least a decade, no wonder we are such a soft state.


There are many people who are imprisoned for more than 10years for the simple reason that they can’t afford bail. Though they had done nothing wrong except some petty stealing they are being confined in the four walls for more than 10 years. So, the proverb “Justice Delayed is Justice Denied” is proved as it is denied to the poorest of the poor.


Remedial measures:

So, I think that the Government should review the judicial system by making some of the following changes:

1] Fix trial and appellate limits to 1.5yrs and 0.5yrs maximum.

2] Increase penalties in IPC which are 60 years old and ridiculously low. For murder may be Rs 10,000 and for rape Rs 2000/. Isn’t it shameful? The fines have to be revised at least 10 times.

3]Minimum Rs 25000 fine where courts come to reasonable conclusion that case or complaint filed was malicious, malafied, vexatious, falsely filed as counter complaint. Besides this, Imprisonment for one month should also be sentenced A black mark to be added against counsel. When three blackmarks are accumulated, lawyer should beexpelled from bar for 3 years period and should be made to pay a fine of Rs 25,000.Today for large number of lawyers there is no difference between criminals and them. They misbehave with clients, don’t pay attention to case, overcharge and delay proceedings.

4] Makefinancial penalties main plank of criminal and civil jurisprudence like in USA so that people are afraid to do crimes and cheating. These should be recovered as land revenue arrears and jailing the convicts or decreed persons till they pay up. Concept of torts and damages should be made easy and included in judicial orders.

5]Change public servants rule to make dismissal easier by a 2 step higher officer or Governor/President as applicable on public complaints and poor honesty and efficiency record. Retire 25% government employees after 10 years of service and 50% thereafter every 5 years of service.

6]There should be LAW or Rule that the case cannot be postponed beyond three/four times. Lawyer asking for date extension on silly grounds (including chest pain or admitted to ICU) must be heftily penalized than only can one expect real justice.

7] Quality of the advocates practicing should be increased by increasing the range of the All India Bar Examination.


While the problem of delay looks intimidating, it can be dealt by having additional fast track Courts, making legal services much more striking thereby drawing high-quality lawyers and filling up all available jobs at various Courts. We can conclude from the above dialogue that we should not route in extra-ordinary hurry-up of cases by whatever means. As justice delayed is justice denied, similarly, the saying, justice hurried is justice buried is evenly factual. Therefore, adequate, realistic and due hearing of every cases with consideration of its state of affairs is the necessary requirement of natural justice and balance of convenience.

Disappearance of house sparrow

Ritu Dhingra


Disappearance of house sparrow

I am writing this article in the interest of society at large and for the conservation and protection of house sparrows which are disappearing from the region of Delhi at a very fast pace. These birds, being an indicator of environmental health, need to be saved before they can be seen only in books or on the internet. Little attention has been given to research and practical conservation measures for sparrows and common birds. . It’s only ignored because it’s common; it has little glamour as compared to other species. There is little awareness with regard to the ecological role it plays. House sparrows being a common bird are not considered important from the scientific point of view also.

House sparrows do not live in jungles, deserts or places where humans are not present. The sparrow is a species that has evolved with humans and is always found in and around human habitations. The house sparrow is a confirmed hanger on to man ever since human habitation started depending on agriculture. It has even been mentioned in most of our Mythologies and Folklores, along with the Common crow, Eagles and other such birds, which used to exist in close proximity to human dwellings. It was once a very common bird all over the country whether it was a bustling urban area or a small hamlet. For generations, house sparrows have added child-like freshness to households with their presence. Scientists and experts say that severe changes in the urban ecosystem in recent times have had tremendous impact on the population of house sparrows whose numbers are declining constantly.

Being a naturalist and  a lawyer by profession and I have been observing this phenomenon for the last two to three years, but since there were no steps taken by the concerned authorities to conserve this species of bird I wanted to create an awareness amongst the common people by writing this article.


Till four to five years ago, it was not difficult to find house sparrows in Delhi but now, one could hardly trace any flocks of sparrows, it is even difficult to locate a solitary house sparrow easily. Slowly and gradually this species of sparrow has become critically endangered in the region of Delhi. There is no awareness amongst the people for such disappearance of the house sparrows. People today are too busy in their everyday humdrum and have little time to think about birds.

According to a study the advent of man-made threats like the rising numbers of mobile phone towers and microwave pollution is silent killer of sparrows. Mosquito coils, cell phone radiation and automobile exhaust of vehicles running on lead-free petrol could also be major factors. Rapid urbanization, lack of nesting grounds due to increased concrete structures; excessive use of pesticides, exotic plants replacing native plants has created obstacles in habitat of the birds resulting thereby decreasing their number to a great extent.

As per a study the mobile phone towers emit a frequency of 900-1800 MHz, continuous penetration of EMR (electromagnetic radiation) through the body of birds would affect their nervous system and their navigational skills. They become incapable for navigation and foraging. The birds which nests near towers are found  to leave the nest within one week.  No measures are being taken by the concerned departments for bringing back the birds. No efforts are carried on by the concerned authorities for the rehabilitation of the house sparrows.


The source of information of the facts stated in this article are based on my personal experience and I have also verified the facts by personally visiting various places  in Delhi and also by personally talking to other people all over Delhi, regarding the disappearance of the house sparrows. And their observation is also the same.  Various reports and articles published on the internet websites also support my article since these birds are disappearing in many other cities in the world. I want to draw the attention of common people at this, since this decline in the number of house sparrows seems to be a common phenomenon in the urban areas across the country. More so, this decline in the number of house sparrows is a significant bio -indicator that there is something wrong in the whole ecosystem and there is some degradation in the urban environment which could be or is harmful for human beings as well. When our environment is not able to support the survival of a small sparrow then it is a matter of great concern.

I think that the concerned authorities must establish the reasons for the disappearance of the house sparrows and special efforts should be taken by concerned authorities to bring back the house sparrows in the city. Awareness amongst the common man must be generated with the help of media and other agencies for the conservation of house sparrows. Every year an inventory of birds of different species residing in Delhi should be drafted after counting the number of birds and the reports should be published in the newspapers along with other journals and websites also, so as to create an awareness amongst the people for the protection of the birds in Delhi.


I want to further expatiate the legal implication attached to this article is based on the following sections of various acts which cover the above stated problem:


(A)  Section 36, 38 and section 39 of the Biological Diversity act 2002. The sections are as follows;



36. (1) The Central Government shall develop national strategies, plans, programmes for the conservation and promotion and sustainable use of biological diversity including measures for identification and monitoring of areas rich in biological resources, promotion of in situ, and ex situ, conservation of biological resources, incentives for research, training and public education to increase awareness with respect to biodiversity.


(2) Where the Central Government has reason to believe that any rich in biological diversity, biological resources and their habitats is being threatened by overuse, abuse or neglect, it shall issue directives to the concerned State Government to take immediate ameliorative measures; offering such State Government any technical and other assistance that is possible to be provided or needed.

(3) The Central Government shall, as far as practicable wherever it deems appropriate, integrate the conservation, promotion and sustainable use of biological diversity into relevant sectoral or cross-sectoral plans, programmes and policies.

(4) The Central Government shall undertake measures, –

(i) wherever necessary, for assessment of environmental impact of that project which is likely to have adverse effect on biological diversity, with a view to avoid or minimize such effects and where appropriate provide for public participation in such assessment;

(ii) to regulate, manage or control the risks associated with the use and release of living modified organisms resulting from biotechnology likely to have adverse impact on the conservation and sustainable use of biological diversity and human health.


(5) The Central Government shall endeavour to respect and protect the knowledge of local people relating to biological diversity, as recommended by the National Biodiversity Authority through such measures, which may include registration of such knowledge at the local, State or national levels, and other measures for protection, including sui generic system.

38. Without prejudice to the provisions of any other law for the time being in force, the Central Government, in consultation with the concerned State Government, may from time to time notify any species which is on the verge of extinction or likely to become extinct in the near future as a threatened species and prohibit or regulate collection thereof for any purpose and take appropriate steps to rehabilitate and preserve those species.

39. (1) The Central Government may, in consultation with the National Biodiversity Authority, designate institutions as repositories under this Act for different categories of biological resources.

(2) The repositories shall keep in safe custody the biological material including voucher specimens deposited with them.


(B)  The relevant provisions of the constitution of India are as follows;


a) The State’s responsibility with regard to environmental protection has been laid down under Article 48-A of our Constitution, which reads as follows:

“The State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country”.


b) Environmental protection is a fundamental duty of every citizen of this country under Article 51-A(g) of our Constitution which reads as follows:


“It shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures.”

The 42nd amendment to the Constitution was brought about in the year 1974 makes it the responsibility of the State Government to protect and improve the environment and to safeguard the forests and wildlife of the country. The latter, under Fundamental Duties, makes it the fundamental duty of every citizen to protect and improve the environment.

(C) Section 3 of the Environmental Protection Act 1986. The section reads as follows:


(1) Subject to the provisions of this Act, the Central Government, shall have the power to take all such measures as it deems necessary or expedient for the purpose of protecting and improving the quality of the environment and preventing controlling and abating environmental pollution.

(2) In particular, and without prejudice to the generality of the provisions of sub-section (1), such measures may include measures with respect to all or any of the following matters, namely:–

(i) Co-ordination of actions by the State Governments, officers and other authorities–

(a) Under this Act, or the rules made there under, or

(b) Under any other law for the time being in force which is relatable to the objects of this Act;

(ii) Planning and execution of a nation-wide programme for the prevention, control and abatement of environmental pollution;

(iii) Laying down standards for the quality of environment in its various aspects;

(iv) Laying down standards for emission or discharge of environmental pollutants from various sources whatsoever:

Provided that different standards for emission or discharge may be laid down under this clause from different sources having regard to the quality or composition of the emission or discharge of environmental pollutants from such sources;

(v) restriction of areas in which any industries, operations or processes or class of industries, operations or processes shall not be carried out or shall be carried out subject to certain safeguards;

(vi) Laying down procedures and safeguards for the prevention of accidents which may cause environmental pollution and remedial measures for such accidents;

(vii) Laying down procedures and safeguards for the handling of hazardous substances;

(viii) Examination of such manufacturing processes, materials and substances as are likely to cause environmental pollution;

(ix) Carrying out and sponsoring investigations and research relating to problems of environmental pollution;

(x) Inspection of any premises, plant, equipment, machinery, manufacturing or other processes, materials or substances and giving, by order, of such directions to such authorities, officers or persons as it may consider necessary to take steps for the prevention, control and abatement of environmental pollution;

(xi) Establishment or recognition of environmental laboratories and institutes to carry out the functions entrusted to such environmental laboratories and institutes under this Act;

(xii) Collection and dissemination of information in respect of matters relating to environmental pollution;

(xiii) Preparation of manuals, codes or guides relating to the prevention, control and abatement of environmental pollution;

(xiv) Such other matters as the Central Government deems necessary or expedient for the purpose of securing the effective implementation of the provisions of this Act.

I hope that in near future we can do something about conserving and saving our precious biodiversity, which we are losing at a very fast pace. House sparrow is only one life form on whose disappearance, I, tried to throw some light but there are other life forms which are even lesser known and which we have already lost by now. Other life forms which are disappearing from the urban environment are bees and butterflies and reasons which are currently known are the electromagnetic radiations from the cell phone towers. In the next article I will try to explain the detailed reasons for the same.