The Weakness Of The Indian Federalism

Indian Federalism,Sk Jahangir Ali

The founding fathers of the Indian Constitution drafted a federal constitution with having the federal features namely (1) Distribution of Powers, (2) Supremacy of the Constitution, (3) A Written Constitution, (4) Rigidity and (5)Authority of Courts. The founding fathers adopted these characteristics from the constitutions of U.S.A, Canada, Australia and the Government of India Act 1935.

Distribution of Powers: – The Indian Constitution distributed the legislative, administrative and financial powers between the Union and the State in the scheme of Union List consisting of 97 subjects, State List consisting of 66 subjects and Concurrent List consisting of 52 subjects. The Union has exclusive power to make laws on items mentioned in the Union List and the State on the State List. A government can not transgress to the other field. The Union and the States are competent to legislate on Concurrent List but in case of conflict the Central legislation must prevail over the States.

Supremacy of the Constitution:-The constitution of India is the paramount document and the Union and the States are under the mandate of the constitution.

Written Constitution:-Indian constitution is a written document .It consists of 444 Articles divided into 26 Parts and 12 Schedules in accordance with ’92nd Amendment’ Act,2003.The constitution written and so supreme.

Rigidity:-The amendment of the constitution is not flexible .Any amendment of the above mentioned Lists need concurrence of the Union and the majority of the States.

Authority of Court:- The Indian constitution established the Supreme Court of India to guard the constitution and to interpret the letter and spirit of the constitution to settle the dispute between the Union and States or the States inter se by its Original Jurisdiction under article 131 of the constitution.

These above mentioned features designed to make cooperation between the Union and the States and to keep the independency in each field.

To protect the unity, integrity and sovereignty against the external aggression and internal disruption the framer of the constitution engrafted some provision which tend to a strong centralization tendency. According to article 3 of the constitution formation of the new States and alteration of areas, boundaries or names of the existing states goes the Parliament. Article 155 says that the Governor of a State shall be appointed by the President by warrant under his hand and seal. By the virtue of article 156 the term of office of Governor depends during the pleasure of the President. Article 248(1) confers exclusive power to the parliament to make any law to any matter not enumerated in the Concurrent List or State List. Article 249 deals with the concept of the power of Parliament to legislate with respect to a matter in the State List in the national interest. Article 250 envisages the power of Parliament to legislate with respect to any matter in the State List if a Proclamation of Emergency is in operation. Article 253 empowers the Union to make any law for giving effect to international agreements .Article 254 says if any provision of the law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which parliament is competent to enact , or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List ,then, the law made by the Parliament, whether passed before or after the law made by the Legislature of such State, or as the case may be ,the existing law, shall prevail and the law made by the Legislature of such State shall, to the extent of the repugnancy, be void. Regarding this nature of the constitution Dr. Ambedkar said, “I think it is agreed that our Constitution notwithstanding the many provisions which are contained in it whereby the Centre has been given powers to override the Provinces (States) nonetheless is a Federal Constitution.’’

Modern trends of decentralization:-The allocation of financial resources between the Union and States is unequal .The Union enjoys the substantial sources of revenue but the States are being assigned insufficient sources of revenue. The States are suffering from deficiencies of discharging the responsibilities of maintaining law and order, social development works as because at the modern time the expenditure is very high to do the work according to the needs of the States but the allocation of revenue is inadequate to satisfy the interest of the States. The States are obligated to submit their five years plans before the Planning Commission which is aquasi political body created by the Centre .The grants of the Planning Commission is discretionary. Too much dependency of the States for financial resources on the Centre creates a rift of the federalism.

Regionalism is a factor to weaken the federal structure. All over India a lot of regional parties are claiming new states to satisfy their regional needs, culture, trait and language which is very unhealthy for federalism. The regional parties are also claiming much more autonomy which strikes the bed rock of federalism.

The emergence of co-alliance government in Indian political scenario creates weakest Central Government which is under pressure of the co-alliance parties. If any initiative of the Central government nominally affects the interest of the co-alliance parties, it threatens to withdraw the support.

Illiteracy, poverty, multiple parties, lack of strong national leader, ill educated political leader, criminalization in politics and horse trading in parliament are bad for federalism.

 

 

Bio-piracy from India in this intellectual property rights regime: An analysis

Sk Jahangir Ali

The world wide economic integration by the GATT and the TRIPs opened the mind of the national and international policy markers to protect their bio-diversity from the free access and bio-privacy. The Biological Diversity Act 2002, The Protection of Plant Varieties and Farmers’ Rights Act, 2001 and The Patent Act 1970 as amended by the Patents (Amendment) Act 2005 in India have not realized the menance of bio-privacy, ‘re-colonization in the making’, ‘global village global tillage’ and the offspring of WTO.

India is a signatory of WTO and TRIPs and The Patent Act of India is being influenced by the TRIPs. Section 3 of the Patent Act, 1970 deals with the concept of what are not inventions. Sub-Section (j) of section 3 as added by Act 38 of 2002, sec. 4 (w.e.f. 20.05.2003) says:

“Plants and animals in whole or any part thereof other than micro-organism sent including seeds, varieties and species and essentially biological processes for production or propagation of plants and animals.”

Article 27(3)(b) of the TRIPs says:

“Parties may exclude from patentability plants and animals other than micro-organism, and essentially biological process for the production of plants or animals other than non-biological and microbiological process. However, parties shall provide for the protection of plant varieties or any effective sui generis system or by any combination thereof. This provision shall be reviewed four years after the entry into force of this agreement.”

According to the Indian Patent Act, the geographical origin or the anticipation of the invention in local or indigenous knowledge constitute grounds for opposition or revoking a patent. Section 25 of the Patent Act 1970 says about the opposition of the patent. Sub-section (j) and (k) of see 25 runs as under:

See 25 (j) “that the complete specification does not disclose or wrongly mentions the source or the geographical origin of the biological material used for invention.”

See 25(k) “that the invention so far as claimed in any claim of the complete specification is anticipated having regard to the knowledge, oral or otherwise, available within any local or indigenous community in India or elsewhere,….”

Section 64 of the Patent Act, 1970 deals with revocation of patents. See 64(p) and (q) has been inserted by Act 38 of 2002, see 31 (w.e.f. 20.05.2003) which are the repetition of section 25(j) and (k).

The current international framework of the intellectual property law favours for the investment protection and the commercial exploitation of the biological resources and the related knowledge.

It is important to emphasized the Article 27(3)(b) of the TRIPs to protect the indigenous knowledge by a wide interpretation. International Union for Protection of New Varieties of Plants or UPOV deals with the concept of the protection of plant varieties grant of exclusive property right to the plant breeders on the basis of distinct, uniform and stable for the appropriation of biological resources and related knowledge but it does not recognize farmers as a breeders. The main philosophy of UPOV is to protect the interest of the corporate biotechnology and powerful seed companies.

At the present scenario to protect the threat of bio-privacy it is needed in India to evolve its own the generis system on community intellectual rights of farmers and not to follow the UPOV nodal.

The legislature with the objective of incentive to breeders and motivation of private sector for the development of the new varieties of plants recognized the right of the plant breeders and included farmers as breeders in respect of their contribution made at any time in conserving, improving and making available plant genetic resources for the development of new plant varieties. The present law is being rectified by providing farmers right at equal footing of the breeder but the main problem lies on the fact that the farmers can not easily obtain property right, benefit sharing on the financial compensation and the intellectual contribution not taken into account.

The Bio-diversity policy broadly encapsulates survey of bio-diversity, national data base, in situ and ex situ conservation, sustainable utilization, indigenous knowledge system, benefit sharing, people participation, international cooperation, research, education, training and extension. Failing in line with B.D. Policy, the Bio-diversity conservation Bill entail information sharing system, chronicling and documentation of bio-wealth, farmers and breeders right is tantamount to CBD – but the grey area of it is about the silence of conservation and sustainable use of biological resource. Another point is that the farmers have no right to allocation of property right.

The fundamental objectives of CBD are – (1) conservation of biological diversity (2) sustainable use of biological diversity and (3) right to sovereignty and equitable sharing of benefit among the indigenous community. The main problem of India is that CBD is directly learned by WTO and TRIPs on the binding character of the treaty to a country.

TRIPs provides for the IPR protection on the basis of monopoly and capitalistic approaches for the patent holders. The effective sui generis under the TRIPs indicate only the patent protection.

Our legislature should, therefore, refurbish the IPR regime over biological resources including the plant variety protection under the paramount consideration of human right to food, health, environment and socio-economic complexities and peculiarities of the country tune with global integral relation, monetary balance, free and fair trade to achieve, “the greatest good of the greatest number.”

 

 

Sexual harassment at workplace

Sexual harassmentMadhvender Chauhan

ABSTRACT

Sexual harassment is “behavior with a sexual connotation that is abusive, injurious and unwelcome”. For the victim, sexual harassment has direct consequences for the maintenance or improvement of his or her living conditions and/or places him or her in an atmosphere of intimidation, humiliation or hostility.

The purpose of the paper is to provide a holistic and comprehensive picture in regard to the sexual harassment at workplace.

The paper attempts to discuss all kinds of conduct that can come within the purview of the word “sexual harassment”. The paper also brings to light the various tests which can be applied to determine as to whether certain conduct at the workplace can be treated as sexual harassment or not. The paper also focuses on the international instruments and conventions which came into existence to prohibit this evil of sexual harassment in the society. The paper stresses on the preventive and procedural actions that need to be taken by the employers to combat sexual harassment at the workplace. The paper shall also provide for the liabilities and the remedies that are available to the victims of sexual harassment. The paper shall conclude by suggesting the various resorts that are open to the victims to get their grievances redressed.

need of providing the women with the opportunity to plan and make choices for themselves and further, to transform those choices into desired outcomes. The paper will also focus on the various measures which are being taken, both at the national and international fronts, to improve the condition of women and empower them. The paper shall conclude by suggesting measures to sow the seeds of entrepreneurial culture so deep in the society of India that plants of success, prosperity and empowerment of women is bound to reap.

INTRODUCTION:

Sexual harassment is any sexually oriented conduct that may endanger the victim’s job, negatively affect the victim’s job performance or undermine the victim’s personal dignity. It may manifest itself physically or psychologically. Its milder and subtle forms may imply verbal innuendo, inappropriate affectionate gestures or propositions for dates and sexual favours. However, it may also assume blatant and ugly forms like leering, physical grabbing and sexual assault or sexual molestation.

As noted by Dickson, CJ of the Supreme Court of Canada in Janzen v. Platy Enterprises Ltd. , in most cases of sexual harassment, the perpetrator misuses “a position of power to import sexual requirements into the workplace thereby negatively altering the working conditions of employees who are forced to contend with sexual demands”. Sexual harassment involves “the unwanted imposition of sexual requirements in the context of a relationship of unequal power”.

It is important to bear in mind that the perpetrator of sexually harassing behavior may not be motivated only by sexual desire or lust. The perpetrator may simply be demonstrating his or her power to the victim. In many cases, such behavior may be a by-product of the prevailing stereotypes in the system. Thus, male perpetrators may indulge in sexually-harassing behavior to simply show the female victim ‘her place’ or to convey to her that she is good only for gratifying their sexual desires. While cases involving sexual harassment of subordinates by superior officers may be characterized by the perpetrator’s desire to assert power over the recipients, those involving sexual harassment by co-employees (including subordinates) and outsiders (like the employer’s customers) may be actuated by sheer lust or sexual stereotyping.

The following passage from the decision of the arbitrator in the Canadian Pacific Ltd. and B.M.W.E. (Parker), Re , depicts the wide range of sexual harassment:

“While physical touching and the making of sexual demands may be the crudest form of sexual harassment, giving rise to the earliest complaints and court or tribunal decisions, experience has shown that the concept of sexual harassment can be much broader. Innuendo by words or gestures, unwelcome staring, sexually abusive jokes or other language, the unwelcome displaying of pornography and the writing of graffiti on workplace walls which singles out or demeans individual employees are all now generally recognized as forms of sexual harassment, even though they may not involve an abuse of power or the making of sexual demands by the member of one sex upon a member of the other sex.”

DEFINITION:

In India, in the absence of any statutory definition of the term sexual harassment, it was left to the Supreme Court to do the needful. Relying on international conventions and norms, particularly General Recommendation No.19 (January 1992) of the Committee on the Elimination of Discrimination Against Women (CEDAW) constituted by the United Nations, the Supreme Court defined the term sexual harassment for the first time in the year 1997 in Vishaka v. State of Rajasthan . The definition is almost parimateria with the one proposed by the CEDAW, United Nations and reads:

“Sexual harassment includes such unwelcome sexually-determined behavior (whether directly or by implication) as: (a) physical contact and advances;(b) a demand or request for sexual favours ; (c) sexually-coloured remarks; (d) showing pornography; (e) any other unwelcome physical,verbal or non-verbal conduct of sexual nature.

Where any of these acts is committed in circumstances whereunder the victim of such conduct has a reasonable apprehension that in relation to the victim’s employment or work whether she is drawing salary, or honorarium, or voluntary, whether in government, public or private enterprise such conduct can be humiliating and may constitute a health and safety problem. It is discriminatory for instance when the women has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work including recruiting or promotion or when it creates a hostile work environment. Adverse consequences might be visited if the victim does not consent to the conduct in question or raises any objection thereto”.

THE LEGAL TEST FOR SEXUAL HARASSMENT:

1. Unwelcome:To fit in the concept of ‘sexual harassment’ the relevant conduct must be ‘unwelcome’, that is unwelcome to the recipient of that conduct. In this context ‘unwelcome’ means that the advance, request or conduct was not solicited or invited by the recipient, and the recipient regarded the conduct as undesirable or offensive. While definitions of ‘sexual harassment’ abound in various international instruments, declarations and conventions, as also in court decisions, and are largely similar, “the one common element in all these definitions is the unwanted and unwelcome nature of sexual harassment’. The first feature of sexual harassment is the non-consensual practice at or connected with the workplace of the proscribed sexual behavior.

2. Sexual in Nature: The second element of the definition requires the conduct to be ‘sexual’ in nature. Courts, including Human Rights Tribunal, worldwide have recognized a broad scope of conduct that may fall under the definition of sexual harassment, depending on the circumstances. Such conduct may be physical, verbal or non-verbal. The ILO has identified the following “most common forms of sexual harassment” at the workplace:

• Physical harassment (kissing, patting, pinching or touching in a sexual manner);

• Verbal harassment (unwelcome comments about a person’s sex orprivate life, jokes and insinuations, sexually explicit conversation, suggestive comments about a person’s appearance or body);

• Gestural harassment (sending suggestive gestures, such as nods, winks, gestures with the hands, fingers, legs or arms);

• Written or graphic harassment(sending pornographic pictures through e-mail, putting up pin-ups or addressing unwanted love letters to an employee);

• Emotional harassment (behavior which isolates, is discriminatory towards, or excludes a person on the grounds of his or her sex).

3. Persistence and/or Gravity of the Conduct: To constitute ‘sexual harassment’ it is not enough that the impugned conduct be merely unwelcome sexual conduct. The word ‘harass’ implies the installation of fear or the infliction of damage; is indicated by the definition of the term in the Macquarie Dictionary: “1. to trouble by repeated attacks, incursions, etc., as in war or hostilities; harry; raid.2. to disturb persistently; torment, as with troubles, cares, etc.” There must be either unwanted sexual behavior whose main effect is to subordinate the maintenance of conditions and benefits to submission to unwelcome sexual demands, or behavior that creates an “intimidating, hostile or humiliating working environment”. In the context of ‘sexual harassment’ there is unanimity of judicial opinion that the behavior complained of need not be repeated to constitute sexual harassment and in a given case even a single act may be sufficient. While it is important to consider the nature and intensity of the unwelcome act itself, its impact on the victim must also be considered.

INTERNATIONAL INSTRUMENTS AND CONVENTIONS:

Much of the impetus for the statute law and judicial decisions that prohibit or constrain sex discrimination and sexual harassment stems from the recognition of the equality of the sexes in various international instruments and conventions. The Charter of the United Nations, The Universal Declaration of Human Rights, the European Convention on Human Rights and the International Covenant on Civil and Political Rights, all contain statements of a principle against discrimination on the basis of sex. That principle finds fuller expression in relation to women in the convention on the Elimination of All Forms of Discrimination against Women. India ratified the Convention on 25.06.1993 with some reservations, which are, however, not relevant in the present context.

THE INDIAN CONSTITUTION:

The meaning and content of the fundamental rights guaranteed in the Constitution of India are of sufficient amplitude to encompass all the facets of gender equality including prevention of sexual harassment or abuse. The Courts are under a constitutional obligation to protect and preserve those fundamental rights. That sexual harassment of a female at the place of work is incompatible with the dignity and honour of a female and needs to be eliminated and that there can be no compromise with such violations,admits of no debate. Referring to the incidents of sexual assaults on working women, the Supreme Court said in Vishaka case: “Each such incident results in violation of the fundamental rights of ‘Gender Equality’ and the ‘Right to Life and Liberty’. It is a clear violation of the rights under Articles 14, 15 and 21 of the Constitution. One of the logical consequences of such an incident is also the violation of the victim’s fundamental right under Article 19(1)(g) ‘to practice any profession or to carry out any occupation, trade or profession depends on the availability of a ‘safe’ working environment. Right to life means life with dignity.” Article 42 in Part IV-A of the Constitution which deals with the Directive Principles of India provides that the State shall make provision for securing just and humane conditions of work and for maternity relief. Amongst the fundamental duties of the citizen Article 51-A is relevant which states that it shall be the duty of every citizen of India to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women.”

REASONS FOR COMBATING SEXUAL HARASSMENT:

Sexual harassment in the workplace attacks the dignity and self-respect of the victim both as an employee and as a human being. Therefore, addressing the issue of sexual harassment is directly linked to the core concerns of improved working conditions and respect for the dignity of workers. ILO says that “there are several good reasons why employers are taking action to prevent sexual harassment”. Legal compliance, business morality and ethics, desire to create a working environment which is conducive to the personal development and high level performance of their employees, litigation costs, desire to protect the company’s image and reducing the health costs and absenteeism of victims suffering from stress caused by sexual harassment are some of the main reasons cited by the ILO in this regard.

PREVENTATIVE AND PROCEDURAL ACTION BY EMPLOYERS:

Sexual harassment “continues to be a major obstacle to equality of opportunity and treatment for women”. Therefore employers are under ‘increased pressure” to tackle this problem. The present civil and penal laws in India do not adequately provide for specific protection of women from sexual harassment in workplaces. Apprehending, and rightly so, that enactment of such legislation would take considerable time, the Supreme Court in Vishaka case thought it necessary and expedient to lay down certain guidelines for observance by employers and other responsible persons in workplaces or other institutions so as to ensure the prevention of sexual harassment of women and to protect their fundamental rights. The Apex Court prescribed the following preventive steps for the employers “without prejudice to the generality of this obligation”:

• Express prohibition of sexual harassment as defined (in this decision) at the workplace should be notified, published and circulated in appropriate ways.

• The rules/regulations of government and public sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender.

• As regards private employers steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.

• Appropriate work conditions should be provided in respect of work. Leisure, health and hygiene to further ensure that there is no hostile environment towards women at workplaces and no woman employee should have reasonable grounds to believe that she is disadvantaged in connection with her employment.

“The advantage of workplace mechanisms over legislation”, says an ILO report, “is that their role is primarily preventive. Rather than being confined to responding to sexual harassment, they are intended to ensure that it does not take place. Effective workplace policies protect employees by dissuading potential harassers, and identifying and responding to harassing behavior in its early stages.” The employers should formulate policy statements expressly declaring that sexual harassment at the workplace shall not be tolerated or condoned under any circumstance whatever.

Various other recommendations which are relevant to Indian employers as well, for shaping their policies on sexual harassment, are condensed below:

The policy statement should:

• Make it clear what is considered inappropriate behavior at work. It should also explain that such behavior, in certain circumstances might be unlawful.

• Place a positive duty on managers and supervisors implement the policy and to take corrective action to ensure compliance with it.

• Place a positive duty on all employees to comply with the policy and to ensure that their colleagues are treated with respect and dignity.

• Explain the procedure that employees subjected to sexual harassment at work should follow so as to obtain assistance. It should also specify the persons to whom they should complain.

• Contain an undertaking that allegations of sexual harassment will be dealt with seriously, expeditiously and confidentially, and that employees will be protected against victimization or retaliation for bringing a complaint of sexual harassment.

• And last but not the least, specify that appropriate disciplinary measures would be taken against employees found guilty of sexual harassment.

LIABILITY ABD REMEDIES:

Nearly all industrialized countries provide some form of legal recourse against sexual harassment at work. However, as pointed out by an ILO publication, the extent to which such remedies are used usually depends on the legal system where they are located. In some countries sexual harassment at work is legislatively or judicially recognized as a legally distinct type of prohibited activity. However, other countries are yet to reach “this level of awareness.” In India, thanks to our Supreme Court, our legal system has reached that level of awareness where sexual harassment at work is recognized as a legally distinct type of prohibited activity. This has been possible not because of some progressive legislation enacted by the Parliament or any State legislature, but “by a rather innovative judicial law-making process” resorted to by the Supreme Court in Vishaka case, “against the growing menace of sexual harassment of women at the workplace.” In Vishaka, a three judge Bench categorically declared, “ The meaning and content of the fundamental rights guaranteed in the Constitution of India are of sufficient amplitude to encompass all the facets of gender equality including prevention of sexual harassment or abuse.”

Having noted that the present civil and penal laws in the country do not adequately provide for specific protection of women from sexual harassment at work and that enactment of such a legislation would take a considerable time, the Supreme Court laid down certain “guidelines and norms” for “due observance at all workplaces or other institutions, until a legislation is enacted for the purpose.” The Court emphasized that this would be treated as the law declared by it under Article 141 of the Constitution. Also, there are two other statutes which may be of particular help to victims of sexual harassment, viz., the National Commission for Women Act, 1990, and the Protection of Human Rights Act, 1993.

CONCLUSION:

Sexual harassment is a serious and real problem for various working women in large number of occupations, employments, jobs, trades and businesses, and economic sectors. It is an affront to the dignity and self-respect of the victims. It may have disastrous consequences both for the victims and the employers. It is the legal duty of the employer to take appropriate affirmative action to combat sexual harassment at work. Notwithstanding the absence so far of any statute in India that specifically deals with the problem of sexual harassment at work, victims of sexual harassment have remedies under different types of law such as the Indian Constitution, Labour Laws, Criminal Laws, the National Commission for Women Act, 1990, Protection of Human Rights Act, 1993, as also Torts Law.

 

 

Federalism

Indian Federalism,By Shalin Chaudhary and Pratyush Raj

INTRODUCTION:

Federalism is a national political system in which two levels of government, the central government and the regional/state government control the same territory and citizens. It is a philosophy or ideology of political organisation which involves a combination of the principles of centralisation, non-centralisation and power sharing. Federal government, on the other hand, is actual organisation according to these principles, which seeks to maximally express all its ramifications including in particular its territorial ramifications. The word federal came into English via French from Latin. Foederatus means “bound by treaty” deriving from foedus: treaty andfidere: to trust. Under Federalism, the regions surrender some of their political power to the central government, relying on it to act for the common good.

It is a political concept in which a group of members are bound together by covenant with a governing representative head. The term “federalism” is also used to describe a system of the government in which sovereignty is constitutionally divided between a central governing authority and constituent political units. Federalism is a system based on democratic rules and institutions in which the power to govern is shared between national and regional/state governments, creating what is often called a federation.

MEANING:

The origin of the concept of federalism comes in various approaches. Dicey stated that federalism is a national constitution for a body of states which desire union and do not desire unity. He described a federal state as political contrivance intended to reconcile unity and power with the maintenance of state rights. The essence of a federation is the existence of union and its states and the division of power between the union and the states and it is immaterial whether the bond of the union is strong or weak.

Misconception can also arise if one overlooks or underrates the importance of federal principle, namely constitutional distribution of power and diverts one’s might modify the scheme of distribution in special situations or to other peculiarities of the country’s constitution. A true federation contemplates that the political system must reflect principle by actually diffusing power among a number of substantially self-sustaining centers. This is sometimes called non-centralisation. But non-centralisation is different from decentralization. In the latter, there is a conditional diffusion of specific power, but it is subject to recall by unilateral decision. It is also different from ‘devolution’, in which a central Government grants power unilaterally to sub-national units. Non-centralisation in exercising political power cannot be taken away from the general or state governments without common consent. Federalism is intended to preserve self-government.

In a federal system therefore, laws are made both by the regional governments and by a central government. Though there is a division of functions between the centre and the units in federation, and the respective areas of competence of each is earmarked, yet it would not be correct to assume that the various governments act in water tight compartment. As these governments act side by side in the same country, inevitably many types of relations arise amongst them and many instrumentalities to promote intergovernmental co-operation come into existence.

In the three old federations of the U.S.A., Canada and Australia, in the formative stages of development, the dominant operative concept was that of ‘competitive federalism’ which denotes a spirit of competition and rivalry between the centre and the state. The formative stages were, therefore, marked by intergovernmental disputes; the units were very conscious of their powers and rights and, thus, resented the growth of the centre’s powers and any encroachment by it on their domain.

With the passage of time, however, the concept of ‘competitive federalism’ slowly gave way to ‘co-operative federalism’. This trend has been promoted by three powerful factors:

1) The exigencies of war when for national survival, national effort takes precedence over the fine points of Centre-State division of power;

2) Technological advances means making of communication faster;

3) The emergence of the concept of social welfare state in response to public demand for various social services involving huge outlays which the government of the units could not meet by themselves out of their own resources.

The concept of ‘co-operative federalism’ helps the federal state, with its divided jurisdiction, to act in unison. It minimizes friction and promotes co-operation among the various constituent governments of the federal union so that they can pool their resources to achieve certain desired national goals.

Reasons for Federalism:

Many arguments for federalism have traditionally been put in terms of promoting various forms of liberty in the form of non-domination, immunity or enhanced opportunity sets. When considering reasons offered in the literature for federal political orders, many appear to be in favor of decentralization without requiring constitutional entrenchment of split authority. Two sets of arguments can be distinguished: Arguments favoring federal orders compared with secession and completely independent sovereign states; and arguments supporting federal arrangements rather than a (further) centralized unitary state. They occur in different forms and from different starting points, in defense of ‘coming together’ federalism, and in favor of ‘holding together’ federalism.

Features of Federalism:

Political Science classified Constitutions as unitary and federal, from the organizational standpoint, i.e., from the standpoint of distribution of governmental powers. In this context, Dicey observed that “Unitarianism…. Means the concentration of the strength of the state in the hands of one visible sovereign power…. Federalism means the distribution of the force of the state among a number of co-coordinate bodies each originating in and controlled by the constitution”. Broadly speaking, while in a unitary state, all power is vested in a single central government without imposing any constitutional limitations upon its authority, and the local authorities operate as administrative agencies of the central government, exercising such powers as the central government might delegate to the latter. On the other hand, in the federal state, the constitution divides the power between the central and regional government, each deriving its power from the provisions of written constitution, so that there is a sphere of autonomy belonging to the territorial organisations called states, which cannot be withdrawn or curtailed at the will of the central organisation, called the federal government.

Federalism is thus a system of government of a country under which there exist simultaneously a federal or central government (legislature and executive) and several state or provincial legislatures and governments as contrasted with a unitary state. Both federal and state governments derive their powers from the federal constitution; both are supreme in particular spheres and both operate directly on the people; the state governments accordingly are not exercising powers delegated by the federal governments, nor they are subordinate to it (though they deal with less important matters). The foregoing legal test of federalism, when analysed, leads to the following broad features of the federal constitution:

1. Written Constitution: A federal state derives its existence from the constitution, just as a corporation derives its existence from a grant or statute by which it is created. Every power- Legislative, Executive or Judicial, whether it belongs to the federation, or the component states, is subordinated to and controlled by the constitution. Therefore, a federal state requires a written constitution for the obvious reason that in order to be workable and stable and limitations upon them to be enforceable, must be precisely defined by a written instrument. Thus, even though Australia adopted the system of responsible government (or cabinet system) from the unwritten constitution of U.K., it has to be embodied in a written constitution. When a federal polity possesses two constitutions as in the case of U.S.A. and Australia (one for the federation and another relating to the internal structure and administration of each state) and if there is a conflict between the two, then the federal constitution shall prevail.

2. Dual Government: The constitution sets up a dual government – one government having authority over the whole territory of the country or nation which adopts that constitution (i.e. units of the federation) and a government for each of the regional units of which the federation is composed.

3. Distribution of powers: The most essential feature of the federal system is the distribution of power between two governmental units- national and regional. However, even in unitary system, there is some distribution or devolution of powers as between the national and local government, but no court can interfere if the national government withdraws or revokes the powers which had been delegated by itself to the regional administration. Whereas in federation, the regional government derives its power, not by delegation from the national government, but from the same source as does the national government itself, viz., the constitution, and the distribution of power between the two units, which is made by the constitution, is binding on the national as much as on the regional government, so that if either government transgresses the boundaries demarcated by such constitutional distribution of powers, its act would be pronounced by the court as unconstitutional and void. The constitution distributes the power between two governments in such a way that the governmental organs of each of the two governments operate with direct authority over the citizens. In the case of a regional government, it has authority over the citizens residing within the territory of that region, while in case of the federal government, its authority extends over citizens residing in the entire territory of the country, irrespective of the territorial barriers of the units of federation.

4. No Unilateral Change: The foregoing distribution of the power made by the constitution cannot be changed or amended at the unilateral will of the parties to the federation i.e., the federal government or the regional governments. The constitution provides a process of changing its provisions, called ‘Amendment’. In other words, the federal nations generally have written constitution.

5. Interpretation by Judiciary: The distribution of power made by the constitution must be guarded by the judiciary, which is to interpret the constitution as the ‘fundamental law’ of the land and to enforce its provisions against both the federal and regional governments and to invalidate any of their acts which transgresses the limitations imposed upon them by the constitution. Where the federating states have separate constitutions, the problem arises as to how far the constitutional decisions of the federal Supreme Court shall be binding upon the states and their courts. In this context, it was laid down in the case of Marbury vs. Madison, that the federal judiciary is supreme in the exposition of the law of the constitution, and that principle has ever since been respected by this court and the county as a permanent and indispensable feature of constitutional system.

Mutual Obligations between Federation and States:

Obligations fall under the following categories:

a) Maintaining each other’s survival;

b) Maintaining the form of government prescribed by the constitution;

c) Maintaining the federal alliance; and

d) Respecting each other as parallel governments and treating all states equally.

It is essential consequences of the creation of a federal state that there will be parallel governments in treating the country. The existence of parallel governments pre-supposes that constitution must ensure that these parallel governments may be allowed to function without interference from each other, except in special situations envisaged by the Constitution. It is also desirable that each state should be treated by federation equally and at par with every other state of the federation, unless there are special reasons to the contrary.

If federation is expected to maintain the existence of the states and their constitutional order, the state sin their turn are also expected to maintain the federal alliance. Thus there are many federal constitutions express provisions prohibiting secessions.

CONCLUSION:

Federalism originated in the experience gathered from political experiments, not merely in Defense but a number of other subjects, such as control of foreign affairs, inter-state and foreign commerce, export and import and the like, are matters of national interest which is required to be dealt with by the national organisation. There can be a variety of motivations for various units to come together to constitute a federation. The political and economic theories of federalism attempt to understand the rationale for the “coming together” to form federations and once they are formed, analyze the conditions for “holding together”. The political impulse for the smaller units to federate has to be found in issues of freedom, security, political stability and strength while keeping a separate group identity. Similarly, access to a larger common market, reaping economies of scale in the provision of nation level public goods and availability of wider choice in the bundle of services to meet diverse preferences are some of the economic reasons for the smaller units to come together to form a federation. Each federating unit will try to bargain terms advantageous to it to join the federation while the federation will try to attract entry and control exit.

 

 

Conservation of Biodiversity in the Indian Context

 Ritu Dhingra

BiodiversityBiological diversity – or biodiversity – is a term we use to describe the variety of life on Earth. It refers to the wide variety of ecosystems and living organisms: animals, plants, their habitats and their genes, it is degree of variation within a given ecosystem, biome or entire planet.

Biodiversity is the foundation of life on Earth. It is crucial for the functioning of ecosystems which provide us with products and services without which we couldn’t live. Oxygen, food, fresh water, fertile soil, medicines, shelter, protection from storms and floods, stable climate and recreation – all have their source in nature and healthy ecosystems. But biodiversity gives us much more than this. We depend on it for our security and health; it strongly affects our social relations and gives us freedom and choice.

Biodiversity which is the ‘the variability among living organisms from all sources, including terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are a part and also includes diversity within species, between species and of ecosystems’. Conservation and sustainable use of biodiversity is fundamental to ecologically sustainable development.

At the same time, no other feature of the Earth has been so dramatically influenced by man’s activities. By changing biodiversity, we strongly affect human well-being and the well-being of every other living creature.

Biodiversity is extremely complex, dynamic and varied like no other feature of the Earth. Its innumerable plants, animals and microbes physically and chemically unite the atmosphere (the mixture of gases around the Earth), geo-sphere (the solid part of the Earth), and hydrosphere (the Earth’s water, ice and water vapour) into one environmental system which makes it possible for millions of species, including people, to exist.

Biodiversity supports many ecosystem services that are often not readily visible. It plays a part in regulating the chemistry of our atmosphere and water supply. Biodiversity is directly involved in water purification, recycling nutrients and providing fertile soils. Experiments with controlled environments have shown that humans cannot easily build ecosystems to support human needs; for example insect pollination cannot be mimicked, and that activity alone represents tens of billions of dollars in ecosystem services per year to humankind.

The diversity of genes, species and ecosystem is a valuable resource that can be tapped as human needs and demands change, the still more basic reasons for conservation are the moral, cultural and religious values. The importance of biodiversity can be understood, it is not easy to define the value of biodiversity, and very often difficult to estimate it. The value of biodiversity is classified into direct and indirect values.

 

Biodiversity is part of our daily lives and livelihood, and constitutes resources upon which families, communities, nations and future generations depend. Every country has the responsibility to conserve, restore and sustainably use the biological diversity within its jurisdiction. Biological diversity is fundamental to the fulfilment of human needs. An environment rich in biological diversity offers the broadest An environment rich in biological diversity offers the broadest array of options for sustainable economic activity, for sustaining human welfare and for adapting to change.

 

INDIA AND BIODIVERSITY

India has 47 000 species of flowering and non-flowering plants representing about 12% of the recorded world’s flora. Out of 47 000 species of plants, 5 150 are endemic and 2 532 species are found in the Himalayas and adjoining regions and 1 782 in the peninsular India. India is also rich in the number of endemic faunal species it possesses, while its record in agro-biodiversity is very impressive as well. There are 166 crop species and 320 wild relatives along with numerous wild relatives of domesticated animals . Overall India ranks seventh in terms of contribution to world agriculture

India is one of the 17 “mega diverse” countries and is composed of a diversity of ecological habitats like forests, grasslands, wetlands, coastal and marine ecosystems, and desert ecosystems. Almost 70% of the country has been surveyed and around 45,000 plant species (including fungi and lower plants) and 89,492 animal species have been described, including 59,353 insect species, 2,546 fish species, 240 amphibian species, 460 reptile species, 1,232 bird species and 397 mammal species. Endemism of Indian biodiversity is significant with 4950 species of flowering plants, 16,214 insects, 110 amphibians, 214 reptiles, 69 birds and 38 mammals endemic to the country.

India’s contribution to agro-biodiversity has been impressive. India stands seventh in the world as far as the number of species contributed to agriculture and animal husbandry is concerned. In qualitative terms too, the contribution has been significant, as it has contributed such useful animal species as water buffalo and camel and plant species such as rice and sugarcane. India has also been a secondary centre of domestication for animal species such as horse and goat, and such plant species as potato and maize.

Biodiversity contribution to Indian economy

Biodiversity products have obtained a commercial value and have been increasingly exchanged in the markets having a monetary value, from which their share in the national economy can be judged. In the Indian context it is difficult to put a value on diversity as such because the marketable products are of various kinds both legal and illegal e.g wood and non-wood products from forests where wood comprises the major commercial produce is both legally exported as well as presumed to be illegally smuggled out of the country.

The contribution of natural and agricultural biodiversity in terms of crops, live stock, fisheries etc is very substantial in terms of commercial value. Such biodiversity has a major contribution to make to the Indian GDP (gross domestic product). The large economic implications of biodiversity in its wild and domesticated forms is the rice improvement programme. Rice accounts for 22% of the total cropped area and 39% of the total area under cereals, which reflects its importance in the country’s struggle to attain self-sufficiency in food.

 

LOSS OF BIODIVERSITY IN INDIA

Loss of biodiversity – the variety of animals, plants, their habitats and their genes – on which so much of human life depends, is one of the world’s most pressing crises. It is estimated that the current species extinction rate is between 1,000 and 10,000 times higher than it would naturally be. The main drivers of this loss are converting natural areas to farming and urban development, introducing invasive alien species, polluting or over-exploiting resources including water and soils and harvesting wild plants and animals at unsustainable levels.

Rapid environmental changes typically cause extinctions. One estimate is that less than 1% of the species that have existed on Earth are extinct. Ecosystem stability is also positively related to biodiversity, protecting against disruption by extreme weather or human exploitation.

One of the major causes for the loss of biodiversity in India is the expansion of agriculture in previously wild areas. Other impacts include: unplanned development, opening of roads, overgrazing, fire, pollution, introduction and spread of exotics, excessive siltation, dredging and reclamation of water bodies, mining and industrialization. In this century, the Indian cheetah, Lesser Indian rhino, Pink-headed duck, Forest owlet and the Himalayan mountain quail are reported to have become extinct and several other species (39 mammals, 72 birds and 1,336 plants) are identified vulnerable or endangered.

Pressure Habitat destruction, overexploitation, pollution, and species introduction are the major causes of biodiversity loss in India. Other factors included fires, which adversely affect regeneration in some cases, and such natural calamities as droughts, diseases, cyclones, and floods, tsunamis etc. Habitat destruction, decimation of species, and the fragmentation of large contiguous populations into isolated, small, and scattered ones has rendered them increasingly vulnerable to inbreeding depression, high infant mortality, and susceptibility to environmental degradation of a chaste city and, in the long run, possibly to extinction. Besides these, the failure to stem this tide of destruction results from an amalgamation of lacunae in economic, policy, institutional, and governance systems.

 

Among others, these include :

Management with limited local community participation and involvement and inadequate implementation of eco development programmes;

Poor implementation of various environmental legislations including Wildlife (Protection) Act of 1972 as amended in 1991 has lead to a major loss of biological diversity.

Unani, Ayurveda and Sidha. Many indigenous medicines also utilize animals and their parts or extracts as remedies for various diseases. Diverse habitats and species also have non-consumptive use-value.

Tourism, recreation and scientific research are the major examples. The indirect use-value of biodiversity includes ecosystem process of biological diversity, which provides valuable ecological services to the biosphere; some Poor conviction rates of wildlife cases due to inadequate legal competence in the forest department, and the lackadaisical or apathetic approach of courts with cases pending for years.

• Loss of biodiversity has serious economic and social costs for a country. The experience of the past few decades has shown that as industrialization and economic development in the classical sense takes place, patterns of consumption, production and needs, change, straining, altering and even destroying ecosystems.

• India, a mega biodiversity country, while following the path of development, has been sensitive to needs of conservation and hence is still rich in biological resources. Ethos of conservation and harmonious living with nature is very much ingrained in the lifestyles of India’s people. If followed diligently can still help in the conservation of biodiversity.

 

• There are innumerable species, the potential of which is not as yet known. It would therefore be prudent to not only conserve the species we already have information about, but also species we have not yet identified and described from economic point of view. Taxus baccata, a tree found in the Sub-Himalayan regions, once believe to be of no value is now considered to be effective in the treatment of certain types of cancer.

• Biodiversity is part of our daily lives and livelihood, and constitutes resources upon which families, communities, nations and future generations depend. Every country has the responsibility to conserve, restore and sustainably use the biological diversity within its jurisdiction. Biological diversity is fundamental to the fulfilment of human needs. An environment rich in biological diversity offers the broadest array of options for sustainable economic activity, for sustaining human welfare and for adapting to change.

• The long-term fluctuations in temperature, precipitation, wind, and all other aspects of the Earth’s climate. It is also defined by the United Nations Convention on Climate Change as “change of climate which is attributed directly or indirectly to human activity that alters the composition of the global atmosphere and which is in addition to natural climate variability observed over comparable time periods”

Major problems with biodiversity conservation are:

• Low priority for conservation of living natural resources.

• Exploitation of living natural resources for monetary gain.

• Values and knowledge about the species and ecosystem inadequately known.

• Unplanned urbanization and uncontrolled industrialization.

Major threats to biodiversity are:

Habitat destruction

Extension of agriculture

Filling up of wetlands

Conversion of rich bio-diversity site for human settlement and

industrial development.

Five main threats to biodiversity are commonly recognized in the programmes of work of the environmental conventions: invasive alien species, climate change, nutrient loading and pollution, habitat change, and overexploitation. Unless we successfully mitigate the impacts of these direct drivers of change on biodiversity, they will contribute to the loss of biodiversity components, negatively affect ecosystem integrity and hamper aspirations towards sustainable use.

 

By implementing various environment related legislations including the biological diversity act, 2002, and also by following our ancient wisdom for the conservation of environment, cautiously and diligently we can still protect the rich biodiversity of our country.

Theories of Adjudication

Theories of AdjudicationRaabia Abuzer Shams

Introduction 

‘Adjudication’ means the legal process of resolving a dispute. The formal giving or pronouncing of a judgment or decree in a court proceeding; also the judgment or decision given. It includes the entry of a decree by a court in respect to the parties in a case. It implies a hearing by a court, after notice, of legal evidence on the factual issue or issues involved and the equivalent of a determination. It indicates that the claims of all the parties thereto have been considered and set at rest.

Three types of disputes are resolved through adjudication:

disputes between private parties, such as individuals or corporations;

disputes between private parties and public officials; and

disputes between public officials or public bodies.

The requirements of full adjudication include notice to all interested parties (all parties with a legal interest in, or legal right affected by, the dispute) and an opportunity for all parties to present evidence and arguments. The adjudicative process is governed by formal rules of evidence and procedure. Its objective is to reach a reasonable settlement of the controversy at hand. A decision is rendered by an impartial, passive fact finder, usually a judge, jury, or administrative tribunal.

The adjudication of a controversy involves the performance of several tasks. The trier must establish the facts in controversy, and define and interpret the applicable law, or, if no relevant law exists, fashion a new law to apply to the situation. Complex evidentiary rules limit the presentation of proofs, and the Anglo-American tradition of Stare Decisis, or following precedents, controls the outcome. However, the process of applying established rules of law is neither simple nor automatic. Judges have considerable latitude in interpreting the statutes or case law upon which they base their decisions.

Judgements: Are they laws?

An age-old question that still plagues legal theorists is whether judges “make” law when they adjudicate. Sir William Blackstone believed that judges do nothing more than maintain and expound established law (Commentaries on the Laws of England); other writers vehemently disagree. Some legal analysts maintain that the law is whatever judges declare it to be. Echoing those sentiments, President Theodore Roosevelt asserted that “the chief lawmakers in our country may be, and often are, the judges, because they are the final seat of authority. Every time they interpret … they necessarily enact into law parts of a system of social philosophy; and as such interpretation is fundamental, they give direction to all law-making” .

Supreme Court Justice Cardozo, writing in The Nature of the Judicial Process, argued that the law is evolutionary and that judges, by interpreting and applying it to specific sets of facts, actually fashion new laws.

Whether judges are seen as making law or merely following what came before, they are required to operate within narrow strictures. Even when they are deciding a case on the basis of first impression (a question that has not previously been adjudicated), they generally try to analogize to some existing precedent. Judges often consider customs of the community; political and social implications; customs of the trade, market, or profession; and history when applying the law. Some, such as Justice Oliver Wendell Holmes and Justice Cardozo, thought that considerations of social and public policy are the most powerful forces behind judicial decisions.

A hearing in which the parties are given an opportunity to present their evidence and arguments is essential to an adjudication. Anglo-American law presumes that the parties to the dispute are in the best position to know the facts of their particular situations and develop their own proofs. If the hearing is before a court, formal rules of procedure and evidence govern; a hearing before an Administrative Agency is generally less structured.

Following the hearing, the decision maker is expected to deliver a reasoned opinion. This opinion is the basis for review if the decision is appealed to a higher tribunal (a court of appeals). It also helps ensure that decisions are not reached arbitrarily. Finally, a well-reasoned opinion forces the judge to carefully think through his or her decision in order to be able to explain the process followed in reaching it.

Adjudication of a controversy generally ensures a fair and equitable outcome. Because courts are governed by evidentiary and procedural rules, as well as by ‘stare decisis’, the adjudicative process assures litigants of some degree of efficiency, uniformity, and predictability of result.

The purpose of adjudication is to provide justice to the aggrieved party in any said dispute. Parties come to Court only when any alternate dispute mechanism doesn’t work. The experience of the Judges, who are the adjudicators, in deciding the cases, helps in determining the ‘right’ decision and granting relief to one of the parties.

No time is wasted with partisan tactics and delays. It commences immediately with an analysis of the applicable legal authorities and identification of the evidence that supports the positions of each party to the dispute. The adjudicator promptly examines material witnesses under oath in the locations where they are found.

 

Theories of Adjudication

The relevance and applicability of different decisions given by different adjudicators creates a lot of confusion in any legal system. Further, questions have always been raised as to whether certain judgements or methods of adjudication are acceptable or not. This confusion is yet to be at bay. But several jurists and legal thinkers have given their own theories as to what should constitute the basis for adjudication by Judges in any Court of law.

Benjamin Nathan Cardozo (May 24, 1870 – July 9, 1938) was a well known American lawyer and associate Supreme Court Justice. Cardozo is remembered for his significant influence on the development of American common law in the 20th century, in addition to his modesty, philosophy, and vivid prose style. Cardozo served on the Supreme Court only six years, from 1932 until his death in 1938, and the majority of his landmark decisions were delivered during his eighteen year tenure on the New York Court of Appeals, the highest court of that state.

His theory is the first that deserves mentioning. Cardozo was a realist. He totally rejected the Austinian concept of logical interpretation of law and his analytical approach to the judicial process and he emphasised on his need to interpret the law in the light of the social necessities and realities of life. In his most renowned work, ‘The Nature of the Judicial Process’, he stated,

“The judicial process is one of compromise between paradoxes, between certainty and uncertainty, between the literalism that is exaltation of the written word and the nihilism that is destructive of regularity and order.”

He said that Judges, while adjudicating upon a case generally keep a subjective view of the problem at hand and thus complete justice is never attained. No matter how much a Judge may try to be objective in his decision, at some point or another he lets his own beliefs, traditions or morals get in the way f adjudication. He said that in order to give out justice, they need to set aside any subjective approach and apply the law objectively in each case, keeping in view the prevailing traditions, customs, morals, and needs of the society.

 

He was primarily concerned with two aspects of the law:

1. How judges need to decide the cases before them?

2. How law itself evolves and grows in the society.

According to Cardozo, Judges cannot keep themselves secluded from social realities and developments in other fields of social sciences which have a direct bearing upon the life of the people. Therefore, law must be kept at pace with the rest of the society and shape itself according to various social developments to attain the ends of justice.

He stated that all adjudication is ‘experimental’ and that each new case was an experiment in itself, where the rules applied in previous cases of similar nature may be used. He gave great importance to precedents. In his own words,

“Every judgment has a generative power. It begets in its own image. Every precedent, in the words of Redlich, has a “directive force for future cases of the same or similar nature.” It is the source from which new principles or norms may spring to shape sentences thereafter. If we seek the psychological basis of this tendency, we shall find it, I suppose, in habit.”

He called precedents ‘the living form of law’.

The next theory of adjudication that is important for our purpose of study is that given by Holmes.

Oliver Wendell Holmes, Jr. (March 8, 1841 – March 6, 1935) was an American jurist who served as an Associate Justice of the Supreme Court of the United States from 1902 to 1932. he is one of the most widely cited United States Supreme Court justices in history. He was one of the most influential American common law jurists and served as an Associate Justice and as Chief Justice on the Massachusetts Supreme Judicial Court, and was Weld Professor of Law at the Harvard Law School, of which he was an alumnus.

Holmes compared the Law to a bad man “who cares only for the material consequences of things” rather than as an independent moral entity. Holmes defined the law in accordance with his pragmatic judicial philosophy. Rather than a set of abstract, rational, mathematical, or in any way unwordly set of principals, Holmes said that, “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.”

Accordingly, Holmes thought that only a judge or lawyer who is acquainted with the historical, social, and economic aspects of the law would be in a position to fulfil his functions properly.

According to Holmes, lawyers and judges are not logicians and mathematicians. The books of the laws are not books of logic and mathematics. He writes, “The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, and even the prejudices which judges share with their fellow-men, have had a good deal more to do than syllogism in determining the rules by which men should be governed.

In Lochner v. New York (1905) he observed that,

“General proposition do not decide concrete cases.”

Holmes also insisted on the separation of “ought” and “is,” which are obstacles in understanding the realities of the law. As a moral skeptic, Holmes stated that if you want to know the real law, and nothing else, you must consider it from the point of view of a “bad man” who cares only of the material consequences of the courts’ decisions, and not from the point of view of a good man, who find his reasons for conduct “in the vaguer sanctions of his conscience.”

Ronald Myles Dworkin also gave a theory of adjudication. He is an influential contributor to both philosophy of law and political philosophy, Dworkin received the 2007 Holberg International Memorial Prize in the Humanities for “his pioneering scholarly work” of “worldwide impact.” According to a survey in The Journal of Legal Studies, Dworkin was the second most-cited American legal scholar of the twentieth century.

“Judges should decide hard cases by interpreting the political structure of their community in the following, perhaps special way: by trying to find the best justification they can find, in principles of political morality, for the structure as a whole, from the most profound constitutional rules and arrangements to the details of, for example, the private law of tort or contract” (p. 90).

 

The Chain Novel Analogy

• Each judge functions like a writer in a chain novel. The current judge’s job is to “go on from here” in the best way possible.

• That puts constraints on the judge to incorporate previous legal decisions, legal principles and rules in such a way as to tell the most justifiable story about the law.

• Previous chapters have been written;

 

Dworkin’s Theory of Adjudication

• “Going on from here” is not just a matter of applying rules.

• Nor is it just a matter of applying your own moral standards to decide cases when the “rules run out”.

• It involves searching for underlying principles of law that render the law at once coherent and morally and politically justifiable.

 

Criticism of Dworkin’s Naturalism

• The positivist can accept all of Dworkin’s theory of adjudication with the exception of the claim that there are standards of interpretation that require legal decisions to be as morally and politically defensible as possible.

Dworkin’s Claims

• Legal principles are:

• Not reducible to legal rule

• Binding on judges

• Therefore, positivism’s focus on law as a system of rules is distorting—especially of the process of judicial adjudication.

 

Conclusion 

Thus, it is safe to say that there never has been and probably will never be entire uniformity among jurists and legal thinkers as to what constitutes judicial process, which principles must be consulted by the Judges when making decisions and what is law.

There will always be diverging views related to the field of what constitutes law and the major aspects affecting it. Since time immemorial, each society has advanced in its way of thinking and as new aspects of adjudication were conjured, changes were brought about in that legal system, sometimes by practice, usage by the Courts and at other times thrugh legislative action.

All that can be hoped is that in an attempt to lay down ground rules for the same, no society or legal system suffers in the way of granting justice, which is and should be the sole aim of every such legal system.

 

 

Determination of “Injury” in cases of Anti- Dumping and Countervailing Duties

Anti-DumpingIntroduction :

Arpita Mishra

Anti-Dumping law was introduced by Canada in the year 1903. Soon thereafter New Zealand, Australia, United Kingdom and USA came up with legislations which empowered them to take anti- dumping measures. Three of these did countries made some form of injury a prerequisite for imposition of duties as well. The New Zealand Anti-Dumping law did not contain an injury requirement. The American anti- dumping Act of 1921, as originally presented in the House of Representatives did not contain an injury standard. An injury standard was included in a Senate proposal and was eventually adopted by the House of Representatives. Thus, inclusion of the requirement of injury signified that countries recognized the fact that if one sector of the economy was being harmed by dumping there is another sector which might be benefitted by it and preventive action should not be taken unless it was necessary.

The General Agreement on Tariffs and Trade which aims at removing the tariffs and non- tariff barriers between the countries recognizes the right of importing country to protect its domestic country against dumped imports . Thus, GATT does not brand per se as illegal. It is to be condemned only if it causes or threatens material Injury. Therefore –

“ No contracting party shall levy any Anti-Dumping or countervailing duty on the importation of any product of the territory of another contracting party unless it determines that the effect of the dumping or subsidization as the case may be is such as to cause or threatens material injury to an established domestic industry or is such as to retard materially the establishment of a domestic industry.”

Rules for determination of injury have been provided under the 1967 Anti-Dumping Code, 1979 Code and the present Ant-dumping Agreement. It has all through been specified that:

“When in this Code the term ‘injury’ is used, it shall, unless otherwise specified, be interpreted as covering case of material injury to a domestic industry, threat of material injury to a domestic industry or material retardation of the establishment of such an industry.” Thus, Article VI of the GATT provides protection to the domestic industry if :

I. There is injury;

II. Caused by the dumped imports;

III. To the domestic industry.

 

I. Injury :

Members are given the right to protect their domestic industry only against actual for valid imposition of anti – dumping duties. Injury to domestic industry can be of three types:

i. Present material injury to the domestic industry;

ii. Threat of material injury to the domestic industry:

iii. Material retardation in the establishment of the domestic industry.

It must be clear from the determination that the determination was regarding which of the three types of injury.

Korea- Anti-Dumping Duties on Imports of Polyacetal Resins from the United States :

In this case United States alleged Korea Trade Commission (KTC) injury determination in respect of imports of polyacetal resins from US; as KTC failed to determine that whether its finding was based on present material injury, threat of injury, or material retardation of the establishment of an industry, and this determination was inconsistent with 3.4 and 8.5 of the Agreement. A failure to state the basis for a finding of injury meant that a demonstration of a casual relationship between dumped imports and injury as required under Article 3.4 was not possible. Korea pointed out that though there were different basis for the KTC’s affirmative determination but the reference was made to “material injury”; and its findings was based on all three standards. Held : The panel held that while it could be inferred from the text that the determination had involved a consideration of factors and evidence relevant to all three standards of injury, the section of the determination which examined the existence of a casual relationship between the imports and injury to the domestic industry did not distinguish between the questions of present material injury, threat of material injury and material retardation of establishment of a domestic industry.

The existence of the injury(or threat of injury or material retardation in establishment of the domestic industry) has to be based on:

1. Positive evidence and objective examination;

2. The volume of the dumped imports;

3. Effect of the dumped imports on prices;

4. Consequential impact of the dumped imports on domestic industry.

 

1. Positive evidence and objective examination:

The requirement for objective examination was explicitly introduced in the 1979 Code only. The 1967 Code only referred to positive evidence.

2. Volume of the dumped imports:

With regard to the volume of dumped imports Para 2 of Article 3 of the 1979 Code and Uruguay Round Ant- dumping Agreement provides, “ the investigating authorities shall consider whether thre has been a significant increase in imports, either in absolute terms or relative to production or consumption in the importing Member.” The 1967 Code did not have any such provision. Volume of the dumped and other imports was however mentioned in Article 6(b) among other factors in evaluation of the effects of the dumped imports on industry.

3. Effect of the Dumped imports on prices:

The 1979 Code and the present Agreement provides: “ With regard to the effect of the dumped imports on prices, the investigating authorities shall consider whether there has been a significant price undercutting by the dumped imports as compared with price of a like product of the importing member, or whether the effect of such imports is otherwise to depress prices to a significant degree or prevent price increases, which otherwise would have occurred to a significant degree. No one or several of these factors can necessarily give decisive guidance .” such a provision was not there in the 1967 Code.

4. Consequential impact of the dumped imports on domestic industry:

Article 3.4 has been slightly changed from the corresponding provision of Article 3(3) of the 1979 Code. It provides that all relevant economic factors having an effect on the domestic industry have to be evaluated. It further gives an inclusive list of factors and indices which may have bearing on the state of the industry. The factors enumerated in the list are “ actual and potential decline in sales, profits, output, market share, productivity, return on investments, or utilization of capacity; factors affecting domestic prices; the magnitude of the margin of dumping; actual and potential negative effects of cash flow , inventories, employment, wages, growth, ability to raise capital or investments.” The list is preceded by the word “include” in place of the word “such as” which has been used in 1979 Code. The change of the terminology has made evaluation of the factors in the list mandatory.

 

II. Injury caused by the Dumped Imports:

Rules for the assessment of dumping as cause of injury to the domestic industry has been gradually tightened by under the Three Agreements. The 1967 Code provided vague and wide rules which were made more specific under the 1979 Code. The present Agreement has made it more specific:

a) By providing rules for the cumulative assessment of effects of imports;

b) By enumerating some of the factors which may be the cause of injury not caused by dumped imports.

United States- Imposition of the Anti- dumping duties on Import of Fresh Chilled Salmon from Norway :

With regard to the casual relationship, Norway had based its claim on three main grounds:

1. In making the determination the USITC had failed to ensure the injuries caused by factors other than the imports from Norway were not attributed to these imports.

2. The USITC had failed demonstrate that material injury was caused to the domestic industry in the United States by the imports of Norway “through the effects of dumping”.

3. The USITC had not demonstrated that the imports from Norway under investigation were causing present material injury at the time the affirmative determination was made by the USITC.

Norway argued that any material injury to the domestic Atlantic Salmon industry in the United States was caused by factors other than imports from Norway, mentioning the significant increase in the volume of imports of Atlantic Salmon from third countries, increased supplies of substitute products, and internal problems in the United States to domestic industry. According to United States, the USITC had explicitly considered the alternative factors mentioned by the Norwegian respondents and determined that, while these factors might have had an adverse impact on the industry material injury was caused by the imports from Norway. Held: According to the Panel, the primary focus of the requirement in Article 3.4 of a demonstration of a casual relationship between imports under investigation and material injury to a domestic industry was on the analysis of the factors set forth in Articles 3.2 and 3.3 i.e. the volume and price effects of the imports, and their consequent impact on the domestic industry. The panel concluded that the analysis by the USITC of factors other than the imports from Norway under investigation was not inconsistent with the obligations of the United States under Article 3.4 of the Agreement.

 

III. Injury caused to the Domestic Industry:

Determination of the injury has to be made with regard to the domestic industry. In this regard all the three Agreements have provided:

“ the effect of the dumped imports shall be assessed in relation to the domestic production of the like products when available data permits the separate identification of that production on the basis of such criteria as the production process, producers’ sales and profits. If such separate identification of that production is not possible ,the effects of the dumped imports shall be assessed by the examination of the production of the narrowest group or range of products, which includes the like product , for which the necessary information can be provided.” The definition of the domestic industry has been provided in Article 4 of the Agreement.

Mexico – Anti- Dumping Investigation of High Fructose Corn Syrup(HFCS) from the United States :

The United States claimed that SECOFI concluded in the final determination that the relevant domestic for purposes of its threat of injury determination that the relevant domestic industry for purposes of its threat of injury determination consisted of Mexican sugar producers. The United States argued that SECOFI analysis of threat of injury was fundamentally flawed, because SECOFI considered only a portion of the industry’s production , that serving the industrial market for sugar, and never considered the impact of dumped imports on the domestic industry as a whole. The US argued that the Anti-Dumping Agreement requires an assessment of material injury or threat thereof to be based upon the impact of the dumped imports on the entire domestic industry , the US pointed out that the Anti- dumping Agreement provides only for 2 circumstances in which it may be relevant and permissible to examine less that the entire domestic industry: a) exclusion of the related parties, and b) division of the Member’s territory into smaller regions. Mexico argued that SECOFI has considered in its analysis all sugar producers and thus made a determination of threat of injury to the domestic industry as a whole. Mexico acknowledged the SECOFI separately identified the production consumed by the industrial sector from production consumed by the household sector, in view of the specific competition of the former with the HFCS imports. Held: The panel noted that SECOFI defined the domestic industry as “manufactures of cane sugars”. Thus, SECOFI was required , by the explicitly terms of Anti-Dumping Agreement , to consider and determine the question of threat of material with respect to that industry. There is nothing in the Anti-Dumping Agreement which precludes a sectoral analysis of the industry and /or market. The panel noted, that it was undisputed in this case that SECOFI defined the domestic industry as consisting of all sugar producers. What SECOFI failed, to do however, as to assess the question of injury to those producers on the basis of their production of the like product, sugar.

Threat of Material Injury :

“a ‘threat of material injury’ means likelihood of material injury being caused to the domestic industry , if the dumped imports are allowed continue to eneter the importing market unchecked.

Since, the determination of the threat of material injury involves a subjective assessment by the investigating authorities, all the three Anti-Dumping Agreements have specifically provided that ;

“ With respect to cases where injury is threatened by the dumped imports , the application of the anti- dumping measures shall be considered and decided with special care.”

Material Retardation in the Establishment of Industry:

The test of present material injury of threat of material injury is applied in the case of existing industry. In case where industry is yet to be established test of material retardation in the establishment of the industry is applied. There could be two situations where this test may apply :

a) In case of ‘developing industry’ which has not yet begun its commercial production but substantial commitment to commence production has been made;

b) In case ‘nascent industry’ whose commercial production has although begun but the industry has yet to find its place in the market.

While Article 3(a) of the 1967 Code explicitly provided a test for determining the material retardation in the establishment of the industry , it is excluded from the 1979 Code and the present Agreement.

 

Conclusion:

Edwin Vermulst suggests that it should be required in all cases that both the injury and dumping margin must be calculated and the anti- dumping duty must reflect the lower of these two margins .This provision must be coupled with more detailed provisions ensuring transparency with regard to the calculation of injury margins. Since the purpose of anti- dumping duty is protection of the domestic industry ; in situations where there is reduction in domestic sales but the industry is still doing well by way of exports should a conclusion on material injury be reached. Especially in situations where domestic sales have come down from 100% to 72% and the domestic is not selling below cost in the domestic market. Will not positive determination lead to predatory or unfair pricing by the domestic industries abroad which they want to cross-subsidise by keeping the prices up in the domestic market, thus, hurting the domestic consumer and foreign industries. The question becomes more important in cases where domestic industries have been in monopoly situation.

However, another view is that in this way anti- dumping measures are helping the economies in transition by preparing their industries for the market economy.

 

 

 

Eco-feminism – women and conservation of nature

Eco-feminismRitu Dhingra

Today is women’s day and I am writing this article to salute all those women who have been conserving nature by nature. I mean to say that by birth women are great conservators of nature and environment. Throughout many cultures, women have historically held the role of primary food, fuel and water gatherer for their families and communities. Because of this, they have also had a major interest in trying to prevent or undo the effects of deforestation, desertification and water pollution. Women give life. They have the capacity to give life and light. They can take their brooms and sweep the earth like cleaners; they can clean up the atmosphere with their brooms. They can seal up the hole in the ozone layer. The environment is life and women must struggle for life with their feet on the ground and their eyes toward the heavens. They must do the impossible.”

Eco-feminism, or ecological feminism, is a term coined in 1974 by Françoise d’Eaubonne. It is a philosophy and movement born from the union of feminist and ecological thinking and the belief that the social mentality that leads to the domination and oppression of women is directly connected to the social mentality that leads to the abuse of the natural environment.

Eco-feminism is a joining of environmental, feminist, and women’s spirituality concerns. As the environmental movement along with environmental crises raised the consciousness of women to the decay of the earth, they began to see a parallel between the devaluation earth and the devaluation of women. Women began to see the link as not a false construction of weakness, but as a strong unifying force that clarified the violation of women and the earth as part of the same drama of male control

In 1974, a group of about thirty women in the Himalayas of Northern India united to save more than 10,000 square miles of forest watershed. Deforestation in the Himalayan forests had caused landslides, flooding and major soil erosion and had forced women villagers to hike further up the mountains to gather fuel. Now known as the Chipko Movement, Hindi for “to cling,” the name reflected the protesters’ practice of throwing their arms around the trunks of trees marked for chopping and refusing to move. This practice and term later became popular in other areas of the world and was popularly called “tree-hugging.”

India’s Chipko, or tree-hugging, movement attempts to maintain sustainability. It has its historical roots in ancient Indian cultures that worshipped tree goddesses, sacred trees as images of the cosmos, and in sacred forests and groves. The earliest woman-led tree-embracing movements are three-hundred years old. In the 1970s women revived these chipko actions in order to save their forests for fuel wood and their valleys from erosion in the face of cash cropping for the market. Out of a women’s organizational base and with support by males, protests to save the trees took place over a wide area 1972 through 1978, including actions to embrace trees, marches, and direct confrontations with slum bearers and The Chipko movement’s feminine forestry-paradigm is based on similar to those of the emerging science of agro forestry, now being taught in western universities. Agro forestry is one of several sciences based on maintaining ecologically viable relations be-As opposed to modern agriculture and forestry, which separate tree crops from food crops, agro forestry view trees as an integral part of agricultural ecology.

Complementary relationships exist between the protective and productive aspects of trees Land the use of space, soil, water, and light in conjunction with crops and animals. Agro forestry is especially significant for small farm families, such as many in the Third World, and makes efficient use of both human labour and natural resources.

The basis of the movement lay in a traditional ecological use of forests for food (as fruits, roots, tubers, seeds, leaves, petals and sepals), fuel, fodder, fertilizer, water, and medicine. Cash cropping by contrast severed forest products from water, agriculture, and animal husbandry

Only a few years later, an ecofeminist movement in Kenya also embraced the importance of trees. The Green Belt Movement started as a local community tree planting effort. The group of women addressed the lack of local water, the effects of soil erosion and the rising challenges caused by their area’s deforestation. As with the women in India, the women of the Green Belt Movement recognized that by protecting and replenishing their natural environment, they were also laying the groundwork toward equitable economic development. There are many more examples in many other countries where women have started environmental conservation movements.

It is a philosophy and movement born from the union of feminist and ecological thinking and the belief that the social mentality that leads to the domination and oppression of women which is directly connected to the social mentality that leads to the abuse of the natural environment. It combines eco-anarchism or bioregional democracy with a strong ideal of feminism. Its advocates often emphasize a deep reverence for all life, and the importance of interrelationships between humans, non-human other (flora and fauna) and the earth.

Eco-feminism is a movement that applies feminist principles and ideas to ecological issues. It is a term used to address an integrated relationship between feminist and environmental perspectives. The eco-feminism form is an intellectual foundation of ecology and feminism, which focuses on issues such as women’s rights, peace, labour, ecological, and environmental justice.

Eco-feminist believes the oppression of women is a form of social domination and they identify this practice in relationship with the oppression of nature; since the two have been systematically oppressed. Resultant of these practices, the goals of the eco-feminist movement is to develop alternative, non-dominating solutions that will value, celebrate, and defend women and nature.

Deep ecology offers a philosophical basis for environmental advocacy which may, in turn, guide human activity against perceived self-destruction. Deep ecology and environmentalism hold that the science of ecology shows that ecosystems can absorb only limited change by humans or other dissonant influences. Further, both hold that the actions of modern civilization threaten global ecological well-being. Ecologists have described change and stability in ecological systems in various ways, including homeostasis, dynamic equilibrium, and “flux of nature”.

Both eco-feminism and deep ecology put forward a new conceptualization of the self. Some eco -feminists argue that self-realization and identification with all nature places too much emphasis on the whole, at the expense of the independent being. Eco-feminists contend that their concept of the self (as a dynamic process consisting of relations) is superior. A central tenet in eco-feminism states that male ownership of land has led to a dominator culture (patriarchy), manifesting itself in food export, over-grazing, the tragedy of the commons, exploitation of people, and an abusive land ethic, in which animals and land are valued only as economic resources. Other eco-feminists claim that the degradation of nature contributes to the degradation of women.

The capitalist driven export economy in many countries has caused most of the agriculturally productive land to be used for monoculture cash crops. This led to intensification of pesticide use, resource depletion and relocation of subsistence farmers, especially women, to the hillsides and less productive land, where their deforestation and cultivation led to soil erosion, furthering the environmental degradation that hurts their own productivity.

Vandana Shiva makes it clear that one of the missions of eco-feminism is to redefine how societies look at productivity and activity of both women and nature who (“Mother Nature”) and women as “wild” and “untamed” (like nature). Eco-feminists also criticize Western lifestyle choices, such as consuming food that has travelled thousands of miles and playing sports (such as golf and downhill skiing) which inherently require ecological destruction.

Vandana Shiva claims that women have a special connection to the environment through their daily interactions with it that has been ignored. “Women in subsistence economies, producing and reproducing wealth in partnership with nature, have been experts in their own right of holistic and ecological knowledge of nature’s processes, the interconnectedness of nature, or the connection of women’s lives, work and knowledge with the creation of wealth.

Social feminists focus on the role of gender in political economy by analyzing the impact of production and reproduction of men and women’s relation to economic systems. Feminist poststructuralists explain gender’s relation to the environment as a reflection of beliefs of identity and difference such as race, class, gender, age, and ethnicity. In this way they try to explain the relation of gender and development. Liberal feminist environmentalists treat women as having an active role in environmental protection and conservation programs. This role can become problematic. There is a common symbolism in the idea of ‘man’ pitted against nature while nature is feminized and “woman” is assumed to have profound connections with her environment.

These views of gender and environment constitute feminist political ecology, which links feminist cultural ecology, political ecology, geographical ecology and feminist political ecology into one concept. It argues that gender is a relevant factor in determining access and control of natural resources as it relates to class, race, culture and ethnicity to transform the environment and to achieve the community’s opportunities of sustainable development.

Eco-feminist actions address the contradiction between production and reproduction. Women attempt to reverse the assaults of production on both biological and social reproduction by making problems visible and proposing solutions. When radioactivity from nuclear power-plant accidents, toxic chemicals, and hazardous wastes threatens the biological reproduction of the human species, women experience this contradiction as assaults on their own bodies and on those of their children and act to halt them. Household products, industrial pollutants, plastics, and packaging wastes invade the homes of First World women threatening the reproduction of daily life, while direct access to food, fuel, and clean water for many Third World women is imperilled by cash the cropping on traditional homelands and by pesticides used in agribusiness. First World women combat these assaults by altering consumption habits, recycling wastes, and protesting production and disposal methods, while Third World women act to protect traditional ways of life and reverse ecological damage from multinational corporations and extractive industries. Women challenge the ways in which mainstream society reproduces itself through socialization and politics by envisioning and enacting alternative gender roles, employment options, and political practices.

Many eco-feminists advocate some form of an environmental ethic that deals with the twin oppressions of the domination of women and nature through an ethic of care and nurture that arises out of women’s culturally constructed experiences. An eco-feminist ethic is both a critique of male domination of both women and nature and an attempt to frame an ethic free of male-gender bias about women and nature. It not only recognizes the multiple voices of women, located differently by race, class, age and ethnic considerations, it centralizes those voices. Eco-feminism builds on the multiple perspectives of those whose perspectives are typically omitted or undervalued in dominant discourses, for example Chipko women, in developing a global perspective on the role of male domination in the exploitation of women and nature. An eco-feminist perspective is thereby. . . structurally pluralistic, inclusive, and is context based, emphasizing through concrete example the crucial role context plays in understanding sexist and naturist practice.’ An eco-feminist ethic, would constrain traditional ethics based on rights, rules, and utilities, with considerations based on care, love, and trust. Yet an ethic of care, as elaborated by some feminists, falls prey to an essentialist critique that women’s nature is to nurture.

The majority of activists in the grassroots movement against toxics, are women . Many became involved when they experienced miscarriages or their children suffered birth defects or contracted leukaemia or other forms of cancer. Through networking with neighbourhood women, they began to link their problems to nearby hazardous waste sites. From initial Not in My Backyard (NIMBY) concerns, the movement has changed to Not in Anybody’s Backyard (NIABY) to Not On Planet Earth (NOPE). Thus Cathy Hinds, whose well water in East Gray, Maine was contaminated by chemicals from a nearby industrial clean-up corporation became “fighting mad” when she lost a child and her daughter began to suffer from dizzy spells. She eventually founded the Maine Citizens’ Coalition on Toxics and became active in the National Toxics Campaign. Her motive was to protect her children. Women, she says, “are mothers of the earth,” who want to take care of it.”

Each of us should do everything possible to promote actions for survival on local, national, and international levels. . . . We must work to end food irradiation, to ban all known chemicals destroying the ozone layer, to reduce transport emissions, to recycle all reusable waste, to plant arboreta and botanical gardens, to create seed banks, etc. A Committee of Soviet Women pleads for environmental improvement in the face of her country’s accelerating industrial production. A national ecological program subsidized by the government is needed to reverse ecological damage. Children are being born with birth defects; air and water quality have deteriorated.

Women and biodiversity are not terms often considered to be associated with one another. However, women in many developing countries are often the protectors of biodiversity and have a very developed understanding of the medicinal and nutritional uses of a plethora of rare wild and cultivated plants. Biodiversity is fundamental for the continued growth, sustainability, and vitality of individuals and communities across the globe. Women, especially in developing nations, are most vulnerable to changes in biodiversity and at the same time most capable of protecting and retaining biodiversity because they often work the hardest and are the family care-takers. In many countries as per their tradition, women always eat last and are the first to sacrifice their food portion for their children in scarce times. According The Hunger Project, “women bear the brunt of domestic tasks: processing food crops, providing water and firewood, picking fruit, preparing and cooking food, caring for children, the elderly and the sick”. Women have the know-how and the potential to protect biodiversity, whose disappearance has and will increasingly contribute to and exacerbate global climate change

There are different relevant schools of feminist thought and activism that relate to the analysis of the environment. Eco-feminism argues that there is a connection between women and nature that comes from their shared history of oppression by a patriarchal society; this connection also comes from the positive identification of women with nature. This relationship can be argued from an essentialist position, attributing it to biological factors, or from a position that explains it as a social construct.

On this women’s day I want pay my homage to all those who have sacrificed their lives for the conservation of environment, my salutations to all those who are working for the said cause and my regards to all those who respects woman and their efforts for the conservation of environment.

 

 

 

 

 

 

 

 

 

UTOPIA – A reality or a myth

utopiaShivam Goel

“Looking at the world in a grain of sand and heaven in a wild flower,

Holding infinity in palm of your hand and eternity in an hour.

Everything that ever came to reality was once just an imagination.”

— (The Dangerous Knowledge, a documentary film)

What is utopia? Well, in common parlance ‘a welfare state with socio-economic-political perfection, equality and well-being’. However this short hand definition of this word itself puts a doubt over its existence in the real world.

Utopia has often been staged in synonym with an egalitarian society. However this word ‘utopia’ has different meaning for different political strategists and legal scientists, as for example- for Plato it means republic, for Abraham Lincoln it means democracy, for Karl Marx and Linen it means a socialist society and for few others it means technological optimism.

An attempt has being made in this paper to study this term ‘utopia’ from an Indian point of view. If above Para is to be studied in strict sense of the term, we shall very well say that India is an Utopia – never the less because the preamble of Indian Constitution declares India as a secular, socialist, democratic-republic, more-so-over Part XIII of this fundamental ‘law of the land’ talks about ‘freedom of trade commerce and intercourse’, the new economic policy of 1991 opened the gates of so called development in India, by virtue of which privatisation, liberalisation and globalisation freely flowed into the Indian economy with an aim of granting India technological optimism.

In regards to the above rendered knowledge India should be a ‘utopia’.

However the Indian noble laureate, Dr. Amartaya Sen in his book, ‘The Argumentative Indian’, highlights the fact that- there is a difference between real utopia and pseudo utopia. So far as India is concerned- a sense of utopianism rests only on paper not in practicality with existence of such widespread poverty, un-employment, casteism, communalism, linguism and regionalism of all sorts. The book claims that India can grow potentially to become superpower by 2050, provided the growth India is achieving and is targeting is supported by communal harmony, socio-economic justice, fair political interplay and absence of corruption of all sorts, and then in some sense of the term India shall be in position to call itself a visionary nation. A nation that envisions itself to become a utopia one day. But the demands so put forth are more than challenging, practically impossible.

Dr. Amartaya Sen goes on record to statistically prove that India has many reasons to cheer, despite its saddening socio-economic realities. The reasons being, India is 7th largest nation in the world, 6th nation to equip itself with nuclear facilities and faculties, India being one of the only three nations to be able to produce super-computers indigenously (after Japan and the U.S.) , what less to say it’s the 2nd most fastest growing economy in the world after China.

Indian economy is an agrarian economy and despite massive urbanisation, spirit of India continues to live and foster in the rural India. Green Revolution and White Revolution till date are examples that have kept many economic strategist surprised and evolved.

Can India grow agriculturally and technologically at the same time? Is the question to be answered. With large scale farmer suicides throughout the country in wake of India stilling calling itself ‘a developing country’ seems callous on one hand, position as to technological & industrial development remains pity on the other hand with Chinese products flooding Indian markets like never before.

Terrorism and insurgency problems on one hand have cut short India’s dream of calling itself ‘a developed nation’ and on the other hand large scale corruption has paralysed India’s future.

On one hand, people in India are losing their faith in democracy with decrease in number of voter response in wake of elections and on the other hand statutes such as the AFSPA have attracted negative response from people, calling it un-constitutional and anti-national in some sense of the term.

India has been ranked as lowly as 119th in the latest HDI (Human Development Index) report for the year 2011 on one hand, and as per reports of WHO(World Health Organisation), 2011 about 9,00,000 Indians die each year by consuming water unsafe for drinking on the other hand.

Despite achieving almost 93% literacy in state of Kerala, about 62% people in India are still illiterate. Despite achieving 100% electrification in state of Haryana still about 300 million Indians have no access to electricity reports the Wall Street Journal (dated 2nd January, 2012).

Indian railways on one hand is considered as the world’s largest employer but at the same time more than 10% is the unemployment rate in India so far as present scenario is concerned.

There seems no point in endlessly quoting figures and facts as a dichotomy exists in every scenario so far as current situation in India is concerned.

Looking at the gloomy side, Justice Krishna Iyer, quotes in his book ‘Off the Bench’ the following quote:

‘With widespread poverty, un-employment, inequality of income and purchasing power of rupee falling, it seems to me unjust that Indian political leaders are so fascinated in investing so much money in arms, ammunitions and weaponry, although I agree that ‘strength respects strength’ and threats of terrorism are ever growing but situation becomes miserable when there are guided missiles in hands of misguided people.’

Utopia – A Constitutional Dream:

If the case, namely ‘Keshavanand Bharti v. State of Kerala’, is to be talked in nutshell, the synopsis of the case is that ‘the preamble of the Indian Constitution’ is the basic structure of the constitution of India, which under no circumstance can be amended.

Constitution of India is the most fundamental piece of legislation—it is the law of the land. All other statutes derive their existence from the constitution; no legislation can be in abrogation of or against the spirit of the constitution. This is so because in some sense of the term the constitution represents ‘the will’ of the people of India, that is, the sovereignty of India rests in the people of the country. India is sovereign, i.e. it is the supreme excellence, it is free from foreign dominion and people of India are the architects of their own destiny and that of the country. This same spirit is reflected in the opening words of the preamble i.e. ‘We the people of India’. To range it further closely, in India the government is of the people, for the people and by the people, India hence is a democratic republic i.e. people’s rule coupled with a well framed & written constitution.

However a low voter turnout on the election days makes India in some sense of the term a pseudo-democratic country. Rights lose their existence by virtue of their non-implementation. Vote bank politics can be regarded as one of the prime reason for low voter turnout.

Secondly, preamble of the Indian Constitution declares it to be a Socialist country. If words of Marx are to be believed ‘Democracy is the road to socialism’.

Socialism is a system in which property and wealth are shared equally, what is talked about here is community of interest and common ownership. But in practicality ‘I am a man and anything that concerns mankind, concerns me’ is fast fading away.

The virtue of socialism so far as constitution of India is concerned comes from the famous Russian revolution.

Thirdly, secularism, the preamble of the constitution declares India to be a secular nation and so far as fundamental rights enshrined in part III of the constitution are concerned, every citizen of India has a right to propagate and practise religion of his choice in a peaceful and comprehensive manner. Religious tolerism is the premise onto which a welfare state finds its foundation.

Incidents such as 1984 Sikh riots and 2002 Godhra riots prove India’s slackness in this very aspect. Martin Luther King used to say that, ‘a riot is nothing but the voice of the un-heard’, same shall not hold true in Indian context.

Fourthly, equality, equality has been talked about in the constitution in two forms:

1. Equality before law and equal protection of law.

2. Equality of opportunity and status.

Balanced regional development in India over the past has become a dream. The divide between the rich and the poor is becoming ever-growing. Corruption is rampant. Solution to this seems to be in progressive taxation policy, but nothing can be done against the evasion of taxes. Law when is flexed and is moulded against its very own purpose, tyranny prevails—this is what we have to say about Indian tax laws.

So far as equality before law and equal protection of law is concerned, right to speedy trail is just a dream but we still have hope and faith in Indian judicial system although it suffers from docket explosion. Bank of justice is never bankrupt this is what we can say in wake of judicial activism in India.

Fifthly, justice- social, economic and political. How can this be achieved? Through well framed laws. Two things need to be said in this regard:

1. Laws are the means and justice is the end. Well framed laws ensure justice is true sense; equal emphasis is to be placed on their applicability also.

2. Unjust laws are nothing but species of violence and arrest for their non-compliance more so—Mahatma Gandhi. You revolt against an unjust law or you propagate one; there is no other way.

Sixthly, liberty, article 19 of the constitution of India talks of basic freedom i.e. freedom of speech and expression, to form unions and associations, to practise profession of one’s own choice, to reside anywhere in India as per one’s own will, to move freely in public placesanywhere within the territory of India.

But certainly there are certain qualifications to this freedom, but point to be emphasised over here is the role of media. Media sensationalization under the garbof article 19 is unconstitutional. Media in India still has to regularise itself says Justice Markandey Katju, the present Press Council of India. As he points out that there is more to be achieved by media than mere TRPs, let there not be situations as observed by Roman emperors who said, ‘If you cannot serve your people with bread, serve them circuses’. There is no deny that it was media activism that made the ends meet in the Jessica Lal murder case for justice to prevail but equally there is no denial in the havoc media created during the Sarojani Nagar bomb blasts in 2005, where by various news channels verified different sets of news to woo the people, to showcase how quick they are in reporting to their viewers, some channels said, there was a single bomb blast, some said 2 and the others said 3. Also during the Mumbai Taj Hotel attack (26th Nov. 2008) the media was criticised in large length because the news clippings’ aired on national television was infact used by the terrorist to know how the police and military forces were trying to break into the hotel to give shape to successful rescue operation.Media activism has greater role to play not only to ensure that the citizens of the country remain well acquaint to all affairs throughout the country but also to corner down corruption and mal-practises in government department. We are not from the government but the government is from us; this message needs to be imprinted in minds of all citizens.

Seventhly, fraternity, preamble talks of this aspect in fine length and the same is enshrined in the spirit of the Indian Constitution in more than many ways. Fraternity means mutual brotherhood, all united together in name of the country, for the country. United we stand, divided we fall. Let national integration be no more a dream but a reality. May it may not be right to say with all the little experience and knowledge I have, but I strongly feel that ‘religion’ has done more harm to the country than good.

Finally, in best of brevity I conclude the constitutional dream of utopia. There is no reason to deny that if India achieves the sacred virtues of secularism, socialism, people sovereignty, democracy, and republic, equality of opportunity and status, social-economic-political justice, liberty of speech-thought-expression, fraternity and national integration, India shall be a utopia one day. Constitution of India reflects the great dreams, desires and aspirations of its freedom fighters and as the adage goes; great dreams of great dreamers are always transcended. Let’s not lose hope in light of following observations:

1. India is the second largest country in the world in terms of population with more than 1.2 billion people; this population explosion can be seen as availability of best of human resource. India in the world in not known so much so for its technology and natural resources availabity than for its skilled, semi-skilled and un-skilled labour availability. We must bank upon this opportunity rather than criticise the present situation. Argument in regards that we have more dependent population than working population appears to me a myth because statistics show that average age of population in India is 25.1 years.

2. Criminalisation of politics is something that needs to be checked; otherwise India is well equipped to take care of terrorism and insurgency problems as: India has 3rd largest standing army in the world, 4th largest navy and 5th largest air force.

3. May India be called the world diabetes capital or country with highest HIV/AIDS cases but we still are struggling to revolutionise the trend, as for example polio was one of the biggest health hazards India had been facing in the past but same is now on verge of its end, we are about to witness a polio free nation in a year or so, same had been the case with plague & small pox, hence we need to remain positive on this aspect. Less to forget,by volume of pills produced, the Indian pharmaceutical industry is world’s second largest after China.

4. Illiteracy is rampant in India, no doubt about it but efforts are been made to give far reaching results. Right to education as enshrined in Article 21-A of the Indian Constitution has been recognised as a fundamental right available to every citizen. Hence, with such awakening we can expect fruitful and long lasting results.

5. Unemployment is another issue for which India has been criticised off and on, but less to say MGNREGA is the most luminous project any country has ever taken in the world. Mahatma Gandhi National Rural Employment Guarantee Act, 2005 envisions a un-employment free nation, with an annual outlay to this project of about 18,000 Crore Rupees.

6. Poverty is a curse and in this sense of the term India is cursed. Poverty free nation as for now, for India is just a dream that may not meet reality but efforts are been made. Right to Food Bill is still pending in parliament, seeking its approval. Fingers crossed.

7. Corruption is the problem that has impaired the growth and development of India forever, but nothing can withstandthe will of people even if it is corruption; the story of Anna Hazare and the Right to Information Act,2005 is something that will be admired and cherished for years to come.

8. Female criminality and victimity has been rampant in India, right from days of sati pratha to pardha system to preference to a male child, Indian society has been male dominated, but no longer the scenario is the same, gender bias is on decline with effective implementation of provisions as to welfare legislation i.e. equal pay for equal work, the Dowry Prohibition Act, 1961 and enactment of sec.498-A and 304-B of IPC and sec.113-B of the Evidence Act.

9. Strong and effective laws ensure progressive society, when the laws so enacted are followed or are backed by the will of the people, subjecting people to equity and morality in purest form. But problem Indian courts today are facing is docket explosion, but same has not refrained rule of law to prevail in India, what I am at present talking about is the concept of ‘mobile courts’, first of its kind, it refers not to any telecom revolution but to the concept of courts on vehicles. If victims hesitate to approach the court, then court shall approach them to curb any exploitation they tend to face. This system of court proceeding had been launched in Mewat district of Haryana and it is proving to be successful.

10. Technologically India is advancing each passing day, few facts in this regard as mentioned in the yearly issue of the Economic Times,2012 are as follows:

a. India is the only country to have been able to produce super-computers indigenously after Japan and the U.S. India is world’s biggest emerging mobile and auto-mobile market.

b. Maruti Alto has been the most looked after and the most sold car for the year 2011 on a worldwide basis.

c. Tata Nano is regarded as world’s cheapest car in production.

With the following points I feel positive that India is developing at its own pace and is not merely growing at draconian speed giving no consideration to socio-political norms, growing for the sake of growing is the characteristic of a cancerous cell, we in India are aiming towards sustainable economic development, even if not in practicality then let alone be it on pen & paper but at least things have started moving, started changing, in positive direction, with positive pace and with positive attitude & outlook.

 

‘’When sky turns dusky,

And earth turns dry,

Men eat men,

In hue and cry.

 

When sword turns rusty,

And limbs go lame,

Either you surrender,

Or die in shame.

 

Where faith jitters,

And honesty kills,

Fear takes over,

To the kingdom of evil.

 

Honest shall rise,

For evil to end.

Hero are born,

To ignite the heaven.’’

Even if horrors of past are deep rooted and present seems jerky we cannot afford to lose as we are answerable to all are freedom fighters how bought us freedom by pledging their lives.

Do or die is a thing of past, to do before we die is something we have to focus on.

Let the revolution begin, utopia is not a far off dream.

*Disclaimer: All thoughts and opinions expressed are reflection of author’s view on the particular subject that is subject to review in light of apt arguments. Efforts have been made to zero down all personal biasness. All criticism in all forms is most welcome. Author cherishes your prestigious reading.

 

Misuse of judicial provisions in India

-Trisha Saxena

“There are times when even justice brings harm with it”

-Sophocles in Electra.

INTRODUCTION:-

John Rawls claims that “Justice is the first virtue of social institutions, as truth is of systems of thought.”The preamble of our constitution promises to secure to all its citizens JUSTICE: social ,economic and political. Social justice refers to creation of equality and solidarity in society . It refers to a society that values human rights and values dignity of every human being. The term and modern concept of “social justice” was coined by the Jesuit Luigi Taparelli in 1840 based on the teachings of St. Thomas Aquinas and given further exposure in 1848 by Antonio Rosmini-Serbati.Social justice is based on the concepts of human rights and equality and involves a greater degree of economic egalitarianism throughprogressive taxation, income redistribution, or even property redistribution. Social justice as a secular concept, distinct from religious teachings, emerged mainly in the late twentieth century, influenced primarily by philosopher John Rawls.

Economic justice is a concept in which the economic policies must result in distribution of benefits equally to all.Economic justice mainly aims at giving freedom to each person to engage creatively in unlimited work. According to the principles of economic justice the jobs created by state and local tax incentives must go to local people and taxpayers without any discrimination.Within the system of economic justice as defined by Louis Kelso and Mortimer Adler, there are three essential and interdependent principles: The Principle of Participation, The Principle of Distribution, and The Principle of Harmony.The principle of distribution defines the “output” or “out-take” rights of an economic system matched to each person’s labor and capital inputs.

The phenomena of political justice is given by Plato and Aristotle. According to Aristotle, “political justice” derives from his discussion of “the just” as a moral virtue derived as the mean between opposing vices, just like every other virtue he describes.

The UN Declaration recognized four major components of rights of victims of crime:

1. Access to justice and fair treatment – Victims should be treated with compassion and respect for their dignity. They are entitled to access to the mechanisms of justice and to prompt redress, as provided for by national legislation, for the harm that they have suffered.

Judicial and administrative mechanisms should be established and strengthened where necessary to enable victims to obtain redress through formal or informal procedures that are expeditious, fair, inexpensive and accessible. Victims should be informed of their rights in seeking redress through such mechanisms.

The responsiveness of judicial and administrative processes to the needs of victims should be facilitated by:

( a ) Informing victims of their role and the scope, timing and progress of the proceedings and of the disposition of their cases, especially where serious crimes are involved and where they have requested such information;

( b ) Allowing the views and concerns of victims to be presented and considered at appropriate stages of the proceedings where their personal interests are affected, without prejudice to the accused and consistent with the relevant national criminal justice system;

( c ) Providing proper assistance to victims throughout the legal process;

( d ) Taking measures to minimize inconvenience to victims, protect their privacy, when necessary, and ensure their safety, as well as that of their families and witnesses on their behalf, from intimidation and retaliation;

( e ) Avoiding unnecessary delay in the disposition of cases and the execution of orders or decrees granting awards to victims.

Informal mechanisms for the resolution of disputes, including mediation, arbitration and customary justice or indigenous practices, should be utilized where appropriate to facilitate conciliation and redress for victims.

2.Restitution- Offenders or third parties responsible for their behaviour should, where appropriate, make fair restitution to victims, their families or dependants. Such restitution should include the return of property or payment for the harm or loss suffered, reimbursement of expenses incurred as a result of the victimization, the provision of services and the restoration of rights.

Governments should review their practices, regulations and laws to consider restitution as an available sentencing option in criminal cases, in addition to other criminal sanctions. In cases of substantial harm to the environment, restitution, if ordered, should include, as far as possible, restoration of the environment, reconstruction of the infrastructure, replacement of community facilities and reimbursement of the expenses of relocation, whenever such harm results in the dislocation of a community. Where public officials or other agents acting in an official or quasi-official capacity have violated national criminal laws, the victims should receive restitution from the State whose officials or agents were responsible for the harm inflicted. In cases where the Government under whose authority the victimizing act or omission occurred is no longer in existence, the State or Government successor in title should provide restitution to the victims.

3. Compensation – When compensation is not fully available from the offender or other sources, States should endeavour to provide financial compensation to:

( a ) Victims who have sustained significant bodily injury or impairment of physical or mental health as a result of serious crimes;

( b ) The family, in particular dependants of persons who have died or become physically or mentally incapacitated as a result of such victimization.

The establishment, strengthening and expansion of national funds for compensation to victims should be encouraged. Where appropriate, other funds may also be established for this purpose, including in those cases where the State of which the victim is a national is not in a position to compensate the victim for the harm.

4. Assistance – Victims should receive the necessary material, medical, psychological and social assistance through governmental, voluntary, community-based and indigenous means. Victims should be informed of the availability of health and social services and other relevant assistance and be readily afforded access to them. Police, justice, health, social service and other personnel concerned should receive training to sensitize them to the needs of victims, and guidelines to ensure proper and prompt aid. In providing services and assistance to victims, attention should be given to those who have special needs because of the nature of the harm inflicted or because of factors .

Despite such clear guidelines , the victims are not able to get justice in India mainly due to poverty, unemployment, lack of education etc. Imparting justice in a just and fair manner is the essential duty of state through its institutions. Courts are there to protect the rights and the state should check that every individual gets equal opportunity to represent himself in the temple of justice.Cappelletti and Garth point out that the emergence of right to access to justice as ‘the most human basic right’ was in recognition of the fact the possession of rights without any effective mechanism of vindication would be meaningless.

A welfare society can never be achieved unless all the citizens of the state, rich or poor, weak or strong, influential or common are scanned equally by the state. Whenever the state deviates from the notion of equality among its citizens; disparity rages among individuals and the essence of a welfare state is lost.

SUBJECT MATTER:-

 Recent defamation Times Now case:- is primarily a tussle between the media and the judiciary over who’s on top.It made news on 19 nov,2011 when Times Now,a news channel was asked to pay Rs 100 crore to a supreme court judge as fine for defamation charges.

The facts of the case were:- While reporting a provident fund scam Times Now had, by mistake, displayed Justice P B Sawant’s image for 15 seconds. The report alleged that several judges were involved in the scam.The channel had run Justice (retd) P B Sawant’s picture instead of another judge in connection with the Provident Fund scam.

After that for 5 days Times Now had shown the apology or regret in a scroll news but it did not satisfy Justice Sawant.Justice Sawant sent the legal notice to the Times Now.After that Pune District Court found Times Now guilty and ordered it to pay Rs. 100 crore.

Then Times Now filed an appeal appealed against the Pune District Court order in the Bombay High Court, Bombay High Court ordered Times Now to deposit Rs. 20 Crore and furnish bank guarantee for the balance.After this Times Now filed appeal in Supreme Court against this order and Supreme Court rejected the appeal and told the Times Now to go to High Court and Pay.

Times Now has to pay huge amount but the main question is:-

if same happens with the common man will he get the damages of Rs. 100 Crore ?

The answer definitely comes in negative. The News Broadcasters Association (NBA) in a statement issued had said, it notes with sadness that the Supreme Court has, in its wisdom, also declined to interfere in the order of the Bombay High Court by summarily dismissing the Special Leave Petition filed by Times Now.

“If innocent errors committed by media, are visited with such dire legal consequences, and if media companies are compelled to pay such disproportionately exorbitant damages, despite the issuance of a public apology, it would effectively cripple the functioning of the media.”

The Editors Guild of India expressed serious and long/short term concerns at the ruling and its implications. “An unintentional error because of a technical mix-up is in a different category from malicious or intentional libel. If inadvertent errors were to be met with punitive fines, it would make it difficult and indeed hazardous for journalists and media organisations to carry out their professional duties.” The response was more towards freedom of expression and the boundaries it creates, allows and demarcates Vs an error.

“The imposition of a Rs.100 crore fine was, in my opinion, grossly disproportionate to the offence.”: Justice Markandey Katju, November 16, 2011, published on The Hindu newspaper

On the occasion of ‘Press Day” newly elected PCI chief, on November 16, 2011 agreed that the financial damage was steep. “We are all human beings and we all make mistakes. In my opinion, the appropriate order would have been to give a severe warning to the TV channel to be careful in future. I have a statement to make regarding the orders of the Bombay High Court and the Supreme Court in the case of the Times Now channel. With great respect to these orders, I am of the view that they are incorrect and require being reconsidered.” said Justice Katju.

 Misuse of matrimonial laws:-

It is a common perception (through the media hype about women’s torture and anti-patriarchal propaganda) that only men are the torturer and women are victims, which is also quite evident from the average physical strength of the duo. The legal torture of men is not an issue of physical strength or abusive behaviour of one party, it is an issue of a legal system, which is designed to do injustice and hand-over powerful tools of torture in the hands of one-section of the society.

Today, there is a growing tendency to convert every marital dispute into a criminal offense of cruelty or dowry harassment. Instead of using family courts, men are dragged to police stations or crime against women cells. When a marriage breaks, there will be pain and a lot of tears for both men and women. These side effects of marriage dispute must not be considered as crime against women.

The duty of Indian police is to fight crime. It is not their duty to work as agents of women to issue threats of arrest, jailing or seizure of passports to facilitate exorbitant alimonies. At a time, when gay sex and premarital sex is considered legal by Government, it is very unfortunate if all marital disputes are considered as crime against women by men and instead of solving these disputes in Family Courts, police threats and draconian laws are used to force out of court settlement.

Indian Supreme Court warned of legal terrorism due to misuse of section 498A and said, “The role of the investigating agencies and courts is that of a watchdog and not of a bloodhound. It should be their effort to see that an innocent person is not made to suffer on account of unfounded, baseless and malicious allegations.”

Section 498 – A of the Indian Penal Code provides as under:-“Husband or relative of husband of a woman subjecting her to cruelty. – Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation – For the purpose of this section, “cruelty” means –

a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”

Section 113-A of the Indian Evidence Act, 1872 which too was introduced in 1983 provides as under:-

“Presumption as to abetment of suicide by a married woman. – When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or such relative of her husband.

Explanation. – For the purpose of this section, “cruelty” shall have the meaning as in section 498-A of the Indian Penal Code (45 of 1860).”

Some of the shocking statistics are being reproduced as under:-

1. 363 children were detained in 2005 and 280 in 2006 under the draconian law when they had to accompany their respective mothers (related to husbands otherwise than as wives) in custody.

2. As per the NCRB data, more than 81% people prosecuted under Section 498-A IPC have turned out to be innocent and were either discharged or acquitted. 9% accused were not even challaned by the investigating agencies. The conviction rate was only 10% despite the best efforts made by the litigating wives.

3. Every year 52,000 married men commit suicide in India as against 28,000 married women (source: 2005 – NCRB). The percentage of the married men committing suicides is thus 86% more than the married women.

4. Every year more than 1,00,000 men lose their jobs and become unemployed because of wrongful arrests under the dowry laws.

5. World Health Organisation report on Elder Abuse finds misuse of dowry laws by the daughters-in-law as the main reason for the elder abuse in India.

6. The Supreme Court of India has already termed the dowry laws misuse as “Legal Terrorism”.

7. BBC study indicates that more than 80% women under-trials (related to husbands otherwise than as wives) lodged in Tihar Jail (Delhi) are booked under dowry related laws.

8. 1,20,000 women (related to husbands otherwise than as wives) were arrested in the 4 years (2004 to 2007) under the dowry laws as against the 5,000 women only arrested by the British during the tumultuous decade (1937 to 1947). The Women’s Welfare Ministry is in fact the Wives’ Welfare Ministry.

The above statistics clearly show that these provisions of law have done more harm than good to the society. Experience reveals that whenever a wife files a case under Section 498-A IPC against the husband and other relatives, the chances of her marriage surviving are reduced to minimal. Section 498-A IPC in its present form has proved to be sure tool for destroying the Indian families which are otherwise facing the brunt of western influence and the growing levels of intolerance.

After seeing the plight of increasing number of harassed husbands and their family members, a Public Interest Litigation (PIL) DBCW Petition No.- 2825/05 ARJUN LAL VS STATE OF RAJASTHAN, was filed at Rajasthan High Court, Jaipur bench for demanding such facilities for lie-detector tests by police and state authorities which is currently under consideration.

The judicial recognition of blatant misuse of these laws is not anew, way back in 1987, The Hon’ble Court in BALBIR SINGH VS. THE STATE OF PUNJAB observed:

“Though the amendments introduced in the penal code are with the laudable object of eradicating the evil of Dowry, such provisions cannot be allowed to be misused by the parents and the relatives of a psychopath wife who may have chosen to end her life for reason which may be many other than cruelty. The glaring reality cannot be ignored that the ugly trend of false implications in view to harass and blackmail an innocent spouse and his relatives, i.e. fast emerging. IT IS THE TIME TO STOP THIS UNHEALTY TREND WHICH RESULTS IN UNNECCESARY MISERY AND TORTURE TO NUMEROUS EFFECTED PERSONS.”

Justice J.D. Kapoor (Delhi High Court) said in his order passed on 30th May, 2003

“I feel constrained to comment upon the misuse of the provisions

(of law) to such an extent that it is hitting at the foundation of marriage itself and has proved to be not so good for the health of the society at large.”“There is a growing tendency to come out with inflated and exaggerated allegations, roping in each and every relation of the husband”.

In JASBIR KAUR VS. STATE OF HARYANA : the Punjab & Haryana high Court rightly observed that “an estranged wife will go to any extent to rope in as many relatives of the husband as possible in a desperate effort to salvage whatever remains on an estranged marriage.”

In KANRAJ VS. STATE OF PUNJAB ,the Hon’ble Apex Court observed:

“for the fault of the husband the in-laws or other relatives cannot in all cases be held to be involved. The acts attributed to such persons have to be proved beyond reasonable doubt and they cannot be held responsible by mere conjectures and implications. The tendency to rope in relatives of the husband as accused has to be curbed”

Karnataka High Court, in the case of STATE VS. SRIKANTH observed “Roping in of the whole of the family including brothers and sisters-in-law has to be depreciated unless there is a specific material against these persons, it is down right on the part of the police to include the whole of the family as accused”

The Hon’ble Supreme Court, in MOHD. HOSHAN VS. STATE OF A.P., observed “Whether one spouse has been guilty of cruelty to the other is essentially a question of fact. The impact of complaints, accusation or taunts on a person amounting to cruelty depends on various factors like the sensitivity of the victim concerned, the social background, the environment, education etc. Further, mental cruelty varies from person to person depending on the intensity of the sensitivity, degree of courage and endurance to withstand such cruelty. Each case has to be decided on its own facts whether mental cruelty is made out”

Delhi high Court, in SAVITRI DEVI VS. RAMESH CHAND, categorically stated “These provisions were though made with good intentions but the implementation has left a very bad taste and the move has been counter productive. There is a growing tendency amongst the women which is further perpetuated by their parents and relatives to rope in each and every relative including minors and even school going kids nearer or distant relatives and in some cases against every person of the family of the husband whether living away or in other town or abroad and married, unmarried sisters, sisters-in-law, unmarried brothers, married uncles and in some cases grandparents or as many as 10 o 15 or even more relatives of the husband.”

Punjab and Haryana High Court, in BHUPINDER KAUR AND OTHERS VS. STATE OF PUNJAB AND OTHERS, held:“From the reading of the FIR, it is evident that there is no specific allegation of any act against petitioners Nos.2 and 3, which constitute offence under s.498-A I.P.C. I am satisfied that these two persons have been falsely implicated in the present case, who were minors at the time of marriage and even at the time of lodging the present FIR. Neither of these two persons was alleged to have been entrusted with any dowry article nor they alleged to have ever demanded any dowry article. No specific allegation of demand of dowry, harassment and beating given to the complainant by the two accused has been made. The allegations made are vague and general. Moreover, it cannot be ignored that every member of the family of the husband has been implicated in the case. The initiation of criminal proceedings against them in the present case is clearly an abuse of the process of law”

The Hon’ble Supreme Court, inSUSHIL KUMAR SHARMA VS. UNION OF INDIA AND OTHERS,

“The object of the provision is prevention of the dowry menace. But as has been rightly contented by the petitioner that many instances have come to light where the complaints are not bonafide and have been filed with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignominy suffered during and prior to trial. Sometimes adverse media coverage adds to the misery. The question, therefore, is what remedial measures can be taken to prevent abuse of the well-intentioned provision. Merely because the provision is constitutional and intra vires, does not give a licence to unscrupulous persons to wreck personal vendetta or unleash harassment. It may, therefore, become necessary for the legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with. Till then the Courts have to take care of the situation within the existing frame work.”

The need of the hour is to stop the misuse of justice system. It is imperative we take concrete steps in establishing a foolproof legal system by sifting the chaff from the grain so that no accused is, in reality, the ‘victim’ held in the clutches of law. They cannot follow any straitjacket formula in the matters relating to dowry tortures, deaths and cruelty. It cannot lose sight of its ultimate objective, that is, punish the guilty and protect the innocent.

 Misuse of provisions of IPC:-

Misuse of provisions of IPC are mostly done in consonance with matrimonial laws.For example:

Section 406.of IPC provides for Punishment for criminal breach of trust:-

Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

This section, for offences related to Criminal Breach of Trust, is usually applied in investigation of Stridhan recovery from the husband and his family.Offences under this section are bailable and cognizable.

Section 304B of the Indian Penal Code was inserted by a 1986 amendment. The wording of the law states:Dowry death

(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death” and such husband or relative shall be deemed to have caused her death.

Explanation:-For the purpose of this sub-section, “dowry” shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 ( 28 of 1961).

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.

Section 498A is non-bailable,non-compoundable (i.e. it cannot be privately resolved between the parties concerned) and cognizable.In a case Rani Vs. State of NCT of Delhi Criminal Appeal No. 93 of 2004 ,Indian Penal Code, 1860- Section 304B/ 498A Read With Section 34 .The court held that:-

“Every Suicide After Marriage cannot be presumed to be Suicide due to Dowry Demand”

Criticism by Indian judiciary:-

Supreme court declared 498a as “Legal Terrorism” while giving judgment in matter of Sushil Kumar Sharma Vs. Union of India (UOI) and Ors – Jul 19 2005 (Citation: JT 2005 (6) SC 266).

Criticism outside India:-

Several reports of the abuse of Section 498A have involved couples based outside India especially in the US & Canada. The United States Department of State has published the following travel warning:

“A number of US men who have come to India to marry Indian nationals have been arrested and charged with crimes related to dowry extraction. Many of the charges stem from the US citizen’s inability to provide an immigrant visa for his prospective spouse to travel immediately to the United States.”

The courts sometimes order the US citizen to pay large sums of money to his spouse in exchange for the dismissal of charges. The courts normally confiscate the American’s passport, and he must remain in India until the case has been settled.

In a well publicized case, Dr. Balamurali Ambati, who earned his MD at age 17, and his family were detained in India for over three years in a suit related to alleged dowry demands by the family for his brother’s wife Archana, which delayed Dr. Ambati’s entry to the ophthalmology program for two years, leaving him to begin his residency in 1998. All charges against him were dismissed in October 1996 and all his family members were acquitted in June 1999.During the course of the trial the Ambatis produced a tape in which the father of Archana demanded US $500,000 to drop all the charges although the details of this particular case are still debated in India.

Criticism by Social groups:-

Criticism by Men’s Rights movements:

According to the Men’s Rights movement in India, the laws suffer from the following shortcomings:

 Gender Bias: The laws do not recognize cruelty and domestic violence against men. The police in India almost never registers complaints of extortion or violence against men in a domestic relationship, whereas registering a complaint under 498A (where a woman is the aggrieved party) is widespread.

 Vague definitions of Dowry and Stridhan.

 Presumption of guilt: IPC 304B assumes that if the accidental death of a wife happens within 7 years of marriage, it should be assumed to be murder, unless the husband can prove his innocence.Similarly, the Dowry Prohibition Act (section 8-A) states that “Where any person is prosecuted for taking or abetting the taking of any dowry under Sec. 3, or the demanding of dowry under Sec.4, the burden of proving that he had not committed an offence under those sections shall be on him.”

 Duplication of existing laws: Laws already exist to deal with offences against intimidation, violence, extortion and murder. A “dowry death” can be considered a murder, and a demand for dowry can be considered extortion under existing laws. The additional laws, instead of reforming the police, mostly serve to shift the burden of proof onto the accused.

 A corrupt police force which often does no investigation before arresting innocent people.

 Human Rights violations: In most cases involving Non-Resident Indians, their passports are impounded and they are restricted from traveling outside the country.

 No penalties, in practice, for false complaints or for perjury.

Demands for Amending the law:-

The Malimath committee in 2003 proposed making amendments to this section although such amendments were opposed by Women’s groups.

The Centre for Social Research India has released a research reportopposing amendments to section 498A. According to this report, in the studied cases there were no convictions based solely on section 498A. The report however states that 6.5 percent of the studied cases were falsified. They also state that many people believe the law has been abused by “educated and independent minded women.” A police official asserted that in his district one-third of dowry murder cases were found totally false by the police.

However, on December 17, 2003, the then Minister of State for Home Affairs, I.D. Swami said: “There is no information available with the Government to come to the conclusion that many families in India are suffering due to exaggerated allegations of harassment and dowry cases made by women against their husbands and other family members involving them in criminal misappropriation and cruelty.”

On 20 July 2005, Justices Arijit Pasayat and H.K. Seema of the Indian Supreme Court declared Section 498A to be constitutional.”The object is to strike at the root of dowry menace. But by misuse of the provision a new legal terrorism can be unleashed. The provision is intended to be used as a shield and not an assassin’s weapon. If [the] cry of “wolf” is made too often as a prank, assistance and protection may not be available when the actual wolf appears,” the Bench said.

In August 2010, the Supreme Court asked the Government of India to amend the Dowry Laws to prevent their misuse.In February 2011, the Law Commission of India is considering grounds to recommend amendments to IPC 498A.

 Misuse of Constitutional provisions:-

Article 14 of Constitutional law states that:-

“Equality before law: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth”.

But this article is violated in cases where Section155(4) of the Indian Evidence Act, which provides that when a man is prosecuted for rape and if is shown that the woman in question is of immoral character then her evidence will not be taken into account. It may be argued that this provision offers protection to the accused against false allegations of a women whose character is suspect.Yet consider Section 54 of the same Act which states that” In criminal proceedings (including rape) the fact that the accused person has a bad character is irrelevant, unless evidence has been given (by him) that he has a good character, in which case it becomes relevant.” Among other things it says that in cases of rape, the fact that the accused person is a bad character is irrelevant. In effect, for the purpose of proving that men did rape the prosecutrix, it is irrelevant to show that he has a bad character. If the bad character of the prosecutrix is considered in cases of rape, why not the bad character of the accused too?

Misuse of emergency provisions:-

ARTICLE 352- April 28th 1976 is remembered as a black day in the history of Indian democracy. The very foundations of democracy were murdered on this day when the Supreme Court pronounced its judgment in A.D.M Jabalpur Vs Shukla .

FACTS OF THE CASE: The germs of this case were to be found in the election of Mrs Indira Gandhi (the then prime minister of India) which had been held to be invalid by the Allahabad High Court. In her desire to stick to the chair of prime minster she chose to declare a national emergency on 25th June 1975 on the ground of ‘internal threat’ to the security of India. As a result of the emergency, censorship was imposed on the press on 25th June 1975 itself. On 5th August 1975, Maintenance of Internal Security Act (MISA) was approved by the parliament and a number of opposition leaders were detained under this law. Any person who was considered to be a political threat or who could raise the voice of opposition was detained without trial under the MISA. According to Amnesty International, 1, 40,000 persons were arrested without trial during the emergency period. Many of the detained persons challenged their arrest through writs before the High Courts under Article 226 of the constitution of India. As a result of these writs the state governments in many of the High court’s raised the issue that , whether such writs were maintainable on the ground that under the presidential order declaring emergency the right to file such writ was taken away. All the High court’s declared that despite the suspension of fundamental right of a detained person , he could show that his detention was not in accordance with the law under which he was detained or that there was a mistake of identity.The government being unsatisfied with this decision appealed to the Supreme Court .

ISSUE: The main issue before the Supreme Court in this case was:-

Whether the high courts can entertain a writ of habeas corpus filed by a person challenging his detention, during the emergency period?

DECISION OF SUPREME COURT : In view of the presidential order dated 27th June 1975 no person has any locus standi to move any writ petition under Article 226 before a high court for habeas corpus or any other writ or order or direction to challenge the legality of an order of detention on the ground that the order is not under or in compliance with the Act or is illegal or is vitiated by mala fides factual or legal or is based on extraneous grounds”.

This was the judgment delivered by four senior, most judges of the Supreme Court including chief justice A.N.Ray.

CRITICAL ANALYSIS : The chief reason behind the filing of this writ petition was the political unrest during that period. Opponents had long made allegations that the congress party had taken recourse to electoral frauds to win the 1971 election. Cases of election fraud and misuse of state machinery for election purposes were lodged in the Allahabad High Court against Indira Gandhi by Raj Narain who had been defeated in the parliamentary election by Indira Gandhi. The Allahabad High Court in its judgment declared Indira Gandhi’s election as void and also unseated her from the Lok Sabha. This decision in course of time became the primary reason for the imposition of the 1975 emergency.

On 26th sept. 1975, the 39th amendment to the constitution was made so as to place the election of prime minster beyond the judicial scrutiny. This was an intelligent step by Indira Gandhi to safeguard her seat.

A close study of the facts behind the filing of this writ petition reveals that it was in fact a case for assertion of political powers by one party over the other.

As a matter of fact it is evident that the majority judgment of Supreme Court in A.D.M. Jabalpur Vs Shukla is to a great extent influenced by the political circumstances prevailing at that time. The supreme court even refused to follow the ruling in Makhan Singh Vs state of Punjab (1964) wherein the supreme court had pointed out that if a detenue challenged his detention on the ground that it violated statutory provision or the detention is vitiated by mala fides the challenge could not be barred because of the presidential order under Article 359(1),

However the 44th amendment to the constitution has substituted the words “armed rebellion” for the words “internal disturbances” and thereby narrowed the scope of emergency situations.Thus in conclusion it is clear that the 1975 national emergency was a pre planned drama of the Indira Gandhi govt. in order to secure certain political objectives.

ARTICLE 356- Article 356 of the Indian Constitution has acquired quite some notoriety due to its alleged misuse. Upon the breach of a certain defined state of affairs, as ascertained and reported by the Governor of the State concerned (or otherwise), the President concludes that the ‘constitutional machinery’ in the State has failed. Thereupon the President makes a ‘Proclamation of Emergency,’ dismissing the State Legislature and Executive.

The Sarkaria Commission Report, 1987

In spite of the precautions laid down in Article 356, the Article was invoked on several occasions by the Center due to ambiguities in its wording. It was only in 1987 when the Sarkaria Commission submitted its report that part of the obscurity surrounding Article 356 was cleared. The Commission, headed by Justice R.S. Sarkaria, was appointed in 1983 and spent four years researching reforms to improve Center-State relations.

Rare use of Article 356 :-The Sarkaria Commission recommended extremely rare use of Article 356. The Commission, after reviewing suggestions placed before it by several parties, individuals and organizations, decided that Article 356 should be used sparingly, as a last measure, when all available alternatives had failed to prevent or rectify a breakdown of constitutional machinery in a State. Before taking recourse to the provisions of Article 356, all attempts should be made to resolve the crisis at State level.

S. R. Bommai v. Union of India

The case was a landmark in the history of the Indian Constitution. It was in this case that the Supreme Court boldly marked out the paradigm and limitations within which Article 356 was to function. In the words of Soli Sorabjee, eminent jurist and former Solicitor-General of India, ‘After the Supreme Court’s judgment in the S. R. Bommaicase, it is well settled that Article 356 is an extreme power and is to be used as a last resort in cases where it is manifest that there is an impasse and the constitutional machinery in a State has collapsed.’

On the other extreme of misuse of Article 356 was the failure of the Union Executive – which was of the same political belief as the Government of Narendra Modi in Gujarat – to invoke Article 356 during the carnage following the Godhra train incident on February 27, 2002, in the State of Gujarat. To quote the words of Fali Nariman, noted lawyer and nominated member of the Upper House (Rajya Sabha) of the Indian Parliament during a parliamentary debate: ‘Vital statistics tells us that there are more than 100000 persons in refugee camps and more than 30,000 people have been chargesheeted. Are these figures not enough to compel the Government to take action under articles 355 and 356?’ Fali Nariman also rightly pointed out in an interview with a newspaper correspondent that the Constitution may not have envisaged a situation where an emergency has arisen in a State where the ruling party is of the same political persuasion as the one at the Center and, hence, the Center might be biased against dissolving that government by invoking Article 356. He also pointed out that the word ‘otherwise’ in the text of Article 356 becomes instrumental in such a situation to allow the President to act without waiting for the ‘Governor’s Report.’

The present situation in India shows that the ‘dead-letter’ provision – as Dr. Ambedkar hoped it would be – has become a frequently invoked, not-so-dead Article; it has been activated more than a hundred times till today.

Another example of misuse of Article 356 was the imposition of President’s Rule in the State of Gujarat from September1996 to October 1996, following the incidents of violence indulged in by members of the Gujarat Legislative Assembly. Soli Sorabjee pointed out that violence within the Assembly cannot be treated as an instance of failure of the constitutional machinery; it would otherwise become very easy for malicious legislators to dissolve a duly elected legislative body by creating pandemonium in the Assembly and thereby prompting improper invocation of Article 356.

This type of emergency has been imposed in most of the States at one time or the other fora number of times. It was in 1951 that this type of emergency was imposed for the firsttime in the Punjab State.In1977 when Janata Party came into power at the Centre, the Congress Party was almostwiped out in North Indian States. On this excuse, Desai Government at the Centre dismissednine State governments where Congress was still in power. This action of Morarji Desai’sJanata Government was strongly criticised by the Congress and others. But, when in 1980(after Janata Government had lost power) Congress came back to power at the Centreunder Mrs.Gandhi’s leadership and dismissed all the then Janata Party State Governments.In both cases there was no failure of Constitutional machinery, but actions were taken onlyon political grounds.

The way President’s Rule was imposed on various occasions has raised many questions.At times the situation really demanded it. But at other times, President’s Rule was imposedpurely on political grounds to topple the ministry formed by a party different from the oneat the Centre, even if that particular party enjoyed majority in the Legislative Assembly.Suspending or dissolving assemblies and not giving a chance to the other political parties toform governments in states has been due to partisan consideration of the Union Government,for which Article 356 has been clearly misused.

 Misuse of torts:-

The law of torts in India has been largely borrowed from the English law of torts.

There have been a number of enactments such as the Public Liability Insurance Act, 1991, Environment Protection Act, 1986, Consumer Protection Act, 1986, Human Rights Protection Act, 1998, Pre-Natal Diagnostics Techniques Regulations and Prevention of Misuse Act, 1994, embodying the new principles of tortious liability in India. The Motor Vehicles Act, 1988 and judicial interpretation continue to contribute to development of accident jurisprudence. The unfortunate Bhopal Gas Leak disaster has triggered a new path of tort jurisprudence, leading to environment tort, toxic torts, governmental torts, MNCs liability, congenital torts, stricter absolute liability, etc. Still the Indian Law Reports furnish in this respect a striking contrast to the number of tort cases before the Courts.

Legal Lacunae in Bhopal Gas Tragedy:-

At that time Indian Law had no provision of punitive damages to effectively deal with the Bhopal Gas Tragedy. the Government decided to approach the U.S. District Court to seek justice.Ironically the government ignored the operating principle in US according to which a suit could be maintainable in an American Court only in cases where the damages or injuries occur on American Soil, to American residents or the dependents of American residents. Alternatively, if the prosecution would have proved a design defect in the plant, the suit could have been entertained by the American Courts. But since it was established that the gas leak happened because of poor maintenance, the parent company was not held liable in the US courts.

A significant order was passed by Justice Deo of Bhopal District court which directed UCC to pay Rs. 350 crores as interim relief. The order being interim could not be decreed. And without a decree UC could and did refuse to pay it.

On February 14, 1989 the Supreme Court directed Union Carbide to pay up US $ 470 million in “full and final settlement” of all claims, rights, and liabilities arising out of the disaster in 1984. The victims and legal heirs of the dead, were not informed before this settlement took place.

None of the courts ever directed UCC to reveal any epidemiological information that it had. It refused to render any toxicological information as it formed an integral part of its “trade secrets”. It denied that the gases released during the disaster could cause any adverse health effects in the victims. Moreover, UCC was never ordered to clear the toxic material present on the disaster site which it could have been under the “polluter pays” principle evolved in Oleum Gas Leak Case.

The SC refused to consider UCC liability as unquestionable and absolute. The principle of absolute liability was never evoked by the SC. According to this theory where an enterprise is engaged in a hazardous or inherently dangerous activity and an accident in such an operation results in the escape of a toxic gas, the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident, and such liability is not subject to any of the exceptions under the rule of strict liability.

 ABUSE OF PIL:

However, the development of PIL has also uncovered its pitfalls and drawbacks. As a result, the apex court itself has been compelled to lay down certain guidelines to govern the management and disposal of PILs. And the abuse of PIL is also increasing alongwith its extended and multifaceted use.

Of late, many of the PIL activists in the country have found the PIL as a handy tool of harassment since frivolous cases could be filed without investment of heavy court fees as required in private civil litigation and deals could then be negotiated with the victims of stay orders obtained in the so-called PILs.

Just as a weapon meant for defence can be used equally effectively for offence, the lowering of the locus standi requirement has permitted privately motivated interests to pose as public interests. The abuse of PIL has become more rampant than its use and genuine causes either receded to the background or began to be viewed with the suspicion generated by spurious causes mooted by privately motivated interests in the disguise of the so-called public interests.

 PENDING OF CASES OF UNDERTRIALS IN INDIA:-

As per the latest comprehensive statistics available on prisons in India, there are 1,93,627 undertrial prisoners as against 63,975 convicts constituting 71.2% of the total prison population in India. The range varies from a low of 12.1% in Tamil Nadu to a maximum of 98.7% in Dadra and Nagar Haveli. The most infamous case in India is that of Ajoy Ghose who spent 37 years in prison, till November 1999. He was arrested for murdering his brother in 1962. Subsequently he was certified as insane and after his mother’s death in 1968, nobody came to visit him. Everybody simply forgot him. While he was in prison, the trial judge and all the witnesses died. His life was the ultimate vicious circle. He could not be acquitted unless tried. Since he was legally alunatic, he could not be tried! In November 1999, some group brought him to the notice of the Supreme Court and it took the Chief Justice of India to transfer him from the Presidency jail of Calcutta to the Missionaries of Charity home. Mr. Ghosh’s life is the ultimate sacrifice to the Indian Justice system. Too many people fall into this coil without recourse or ability to get out. Their Right to Speedy Trial as recognised by the Supreme Court in Hussainara Khatoon [I] vs. Home Secretary, Bihar (1980) 1 SCC 81 is violated due to protracted delays. This delay is due to all kinds of reasons such as –

• Systemic delays.

• Grossly inadequate number of judges and prosecutors.

• Absence or belated service of summons on witnesses.

• Presiding judges proceeding on leave.

• Remands being extended mechanically due to lack of time and patience with the

• presiding judge.

• Inadequacy of police personnel and vehicles which prevents the production of all

prisoners on their due dates.

• Many a times, the escorting police personnel merely produces the remand papers in

• the courts instead of actually producing the prisoner in front of the magistrate. This

practice is widely reported, notwithstanding the strict requirement of the law in

• Section 167[2][b] of the Criminal Procedure Code, 1973 [CrPC] which says that – ‘No Magistrate shall authorize detention in any custody under this section unless the

accused is produced before him.’

 IMPORTANCE GIVEN TO CASES OF POLITICIANS/BUSINESSMAN:-

We have earlier seen the tattered condition of law for undertrials in India but there are some people whose cases law takes on priority basis.

The case of Ambani brothers started in 2006 and ended in may 2010 i.e in three and half years. In the well known 2G case which began in 2007, many present politicians and business houses are involved. But very few have been arrested and the convicted are also getting bail sooner like Kanimozhi ,daughter of karunanidhi got bailed in 193 days. This again makes mockery of Equality before law( Article 14) of constitution.

In India, supreme court judges are appointed by government and also promoted by them so the judges favour the government in cases between government and other party. This can also be a reason for giving importance to the cases of politicians and big business houses.

SUGGESTIONS:

There are some suggestions for the given problem of misuse :-

1. Providing legal awareness is a task which requires maximum attention. The authorities could provide internships to students studying law or humanities and assign them tasks regarding legal awareness. Every district legal service authority should visit all the schools in its jurisdiction and impart awareness to students regarding various laws. The authorities should adopt innovative techniques like screening of documentary movies, setting up street plays in villages, blocs etc to promote awareness.

2. The strength of the no. of judicial officers working in the state as well as the district legal service authority should be increased.

3. The lawyers appointed by the state legal services to provide legal aid should be paid adequately by the government. This will encourage lawyers and it would also improve the quality of legal aid provided. The high court can set up a pool of lawyers specifically for providing legal aid and pay them monthly salary as given to a judicial officer. It can hold examinations and interview for selection of those lawyers. This will ensure that only well qualified lawyers selected in the pool. Thus, the lawyers won’t have to worry in providing legal aids as they are paid a monthly income by the states but it will also help in improving the quality.

4. State legal service authorities should encourage and provide training to the workers of NGOs in paralegal activities.

5. The scope of public utilities mentioned in section 22 of legal services authority act 1987 should be widen and inter- departmental issues should be given a place. This will help in providing speedy justice in inter departmental issues and would help in curbing pending arrears.

6. Alternative dispute resolution should be encouraged, the inter-disciplinary work of various legal authorities should be monitored carefully thus, maintain coherence.

CONCLUSION:-

With a population of just over 1.2 billion, India is the world’s largest democracy.The bulk of citizens in India are still unaware of their legal rights and much less in a position to assert them. And as a result, there was hardly any link between the rights guaranteed by the Constitution of Indian Union and the laws made by the legislature on the one hand and the vast majority of illiterate citizens on the other. Prior to 1980s, only the aggrieved party could personally knock the doors of justice and seek remedy for his grievance and any other person who was not personally affected could not knock the doors of justice as a proxy for the victim or the aggrieved party. Public Interest Litigation as it has developed in recent years marks a significant departure from traditional judicial proceedings. But it has still not been able to reach the most deprived sections of society because of above lacunas in law. The law must be able to reach justice to the poor and the laws must be amended as such to prevent its misuse.