ROLE OF LEGISLATURE AND JUDICIAL REVIEW OF LEGISLATIONS

SAMEER SHARMA

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

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

NATURE OF INDIAN CONSTITUTION

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

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

JUDICIAL REVIEW OF LEGISLATIONS:-

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

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

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

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

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

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

OVERRULING A JUDICIAL DECISION BY A NEW LEGISLATION:-

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

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

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

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

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

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

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

CONCLUSION

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

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

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

Prostitution

Introduction

 

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

 

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

 

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

 

HISTORY

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

 

TRADITIONAL VIEW

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

 

MODERN VIEW

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

Present Legal Status Of Prostitution In India

 

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

 

• Seduction/solicitation of customer

• Prostitution anywhere near a public place

• Publication of phone number of call girls

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

• A sex worker being below 18 years of age

• Procurement and trafficking of women

 

Position In Other Countries

 

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

 

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

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

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

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

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

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

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

 

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

 

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

 

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

 

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

 

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

Immmanuel Kant On Prostitution

 

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

 

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

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

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

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

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

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

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

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

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

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

CONCLUSION

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

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

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

 

IMPLEMENTATION AND ENFORCEMENT OF RIGHT TO EDUCATION IN INDIA’

NEERAJ GAHLAWAT

Introduction

Illiteracy is our sin and shame and must be liquidated.

By Mahatma Gandhi

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

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

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

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

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

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

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

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

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

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

Chapter 1

Education System: Historical Prospective

 

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

 

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

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

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

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

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

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

 

Chapter 2

 Policies and Committees on Education

 

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

 

2.1Kothari Commission (1964)

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

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

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

NEED FOR APPOINTMENT OF COMMISSION:

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

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

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

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

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

2.2 The National Policy on Education, (1968)

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

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

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

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

 

2.3 The National Policy For Children, 1974

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

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

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

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

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

 

2.4 National Policy on Education, (1986)

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

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

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

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

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

 

2.5 165th Law Commission Report, 1998

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

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

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

• Interpreted compulsion as:

• Compulsion on state

• Compulsion on parents

• Compulsion on society

 

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

 

Chapter 3

 Constitution Provisions and Judicial Trends

 

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

 

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

 

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

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

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

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

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

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

 

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

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

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

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

 

3.3 Right to Education and Right to Equality

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

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

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

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

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

3.4 Right to Education Under Article 21-A

 

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

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

Chapter 4

 Administrative Steps and Efforts towards Education

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

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

 

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

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

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

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

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

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

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

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

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

6. Calls for a fixed student-teacher ratio;

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

8. Mandates improvement in quality of education;

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

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

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

 

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

 

4.2 Sarva Shiksha Abhiyan

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

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

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

• Children complete eight years of elementary schooling by 2010.

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

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

• Universal retention by 2010.

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

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

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

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

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

 

4.3 Rashtriya Madhyamik Shiksha Abhiyan

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

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

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

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

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

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

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

 

4.4 Mid-Day Meal

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

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

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

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

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

The objectives of the MDM scheme are:

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

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

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

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

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

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

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

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

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

4.5 Kasturba Gandhi Balika Vidyalaya

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

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

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

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

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

 Areas with low female literacy; or

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

Objectives of KGBV

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

Strategies

495 KGBV will be opened in a phased manner.

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

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

 

Components of the scheme

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

ii. To provide necessary infrastructure for these schools

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

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

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

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

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

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

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

 

4.6 Lacunas in Programmes

 

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

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

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

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

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

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

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

4. How will the government monitor the whole process?

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

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

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

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

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

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

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

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

 

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

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

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

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

ALL INDIA

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

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

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

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

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

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

 

 

 

IN DELHI

1. Dropout rate is 69.06%

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

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

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

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

 

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

 

 

 

 

 

Conclusion

 

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

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

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

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

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

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

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

 

 

 

 

 

 

 

 

Suggestions

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

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

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

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

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

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

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

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

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

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

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

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

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

12. Propertraining for teachers and staff should be provided.

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

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

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

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

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

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

 

 

 

Bibliography

 

Books, Journals, Articles,Websites

 

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

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

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

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

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

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

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

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

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

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

11. Kurukshetra, A Journal On Rural Development.

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

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

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

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

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

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

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

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

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

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

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

 

 

 

 

 

 

 

 

 

Effect of Compitition Law on Mergers and Acquisition

INTRODUCTION 

Mergers and acquisitions (or combinations) refer to a situation where the ownership of two or more enterprises is joined together. A merger is said to occur when two or more companies combine to form a new company. In this, two or more companies may merge with an existing company or they may merge to form a new company. The assets and liabilities of the transferor company become the assets and liabilities of the transferee company after the merger. The purpose of a merger is usually to create a bigger entity, which accelerates growth and leads to economies of scale. However, a merger may lead to unwanted socio- economic implications that are often frowned upon.

This was proved when the European commission on competition blocked the merger of GE and Honeywell, which would have been one of the largest industrial mergers in history. This merger however, was earlier cleared by the concerned US agency – the Department of Justice. This clearly shows each country has its own rules on competition. What one perceives as a threat may not be taken the same way by the other. India, which has now opened itself to global competition, now has its own competition law.

This new law, which seems to be in line with the trend globally, replaces the Monopolies and Restrictive Trade Practices (MRTP) Act, 1969. In the pursuit of globalisation, India has responded to opening up its economy, removing controls and resorting to liberalisations. The natural corollary of this is that the Indian market must be geared to face competition from within the country and outside.

The MRTP Act, 1969 had become obsolete in certain respects in the light of international economic developments relating more particularly to competition felt to shift the focus from curbing monopolies to promoting competition so that the Indian market is equipped to compete with the markets worldwide.

The preamble of the Competition Act, 2002 states that it is a law to foster and maintain competition in the Indian market to serve consumer interest while protecting the freedom of economic action of various market participants and to prevent practices, which affect competition, and to establish a commission for these purposes (Competition Committee of India or CCI).

In India, mergers are regulated under the Companies Act, 2002 and also under the SEBI Act, 1992. With the enactment of the Competition Act in 2002, mergers have also come within the ambit of this legislation. In the Companies Act, 1956, mergers are regulated between companies inter alia to protect the interests of the secured creditors and the SEBI Act it tries to protect the interests of the investors. Apart from protecting the interests of private parties, these objectives are different and mutually exclusive. In the Competition Act, 2002, the objective is much broader. It aims at protecting the appreciable adverse effect on trade-related competition in the relevant market in India (AAEC).

 

 

THE COMPETITION ACT

The Competition Act (CA) attempts to make a shift from curbing monopolies to curbing practices that have adverse effects on competition both within and outside India. It is interesting to see that under the new regime the legislature has chosen to regulate unfair trade practices under only the Consumer Protection Act 1986 and not the Competition Act. In 2007 the Competition (Amendment) Act introduced significant changes to the competition law regime . Most noteworthy of these changes was the introduction of a mandatory notification process for persons undertaking combinations above the prescribed threshold limits. In early 2008 the Competition Commission of India also promulgated and circulated a draft of the Competition Commission (Combination) Regulations.

The regulations provide a framework for the regulation of combinations which include M&A transactions or amalgamations of enterprises. The merger provisions are not yet in force. Nonetheless, it is only a matter of time before the relevant provisions will be notified.

 

POSITION ON COMBINATIONS

Before considering combinations, it is necessary to look at two important sections of the CA. On May 15 2009 the government formally notified certain provisions in the CA relating to anti-competitive agreements and abuse of dominance, covered in Sections 3 and 4 of CA respectively, which came into force on May 20 2009. Section 3 of CA governs anti-competitive agreements and prohibits: agreements involving production, supply, distribution, storage, acquisition or control of goods or provision of services, which cause or are likely to cause an ‘appreciable adverse effect on competition’ in India .

Section 4 of CA prohibits the abuse of a dominant position by an enterprise . Under the Monopolies Act, a threshold of 25% constituted a position of strength. However, this limit has been eliminated under the CA. Instead, the CA relies on the definitions of ‘relevant market ’, ‘relevant geographic market ’ and ‘relevant product market ’ as a means of determining an abuse of a dominant position.

Under Section 6, the CA prohibits enterprises from entering into agreements that cause or are likely to cause an ‘appreciable adverse effect on competition within the relevant market in India ’. Under the new regime, the Competition Commission has investigative powers in relation to combinations . Various factors are provided for determining whether a combination will or is likely to have an appreciable adverse effect on competition in India, and penalties are provided for such violations .

 

CRITERIA UNDER SECTION

One of the most significant provisions of CA, Section 5, which defines ‘combination’ by providing threshold limits in terms of assets and turnover is yet to be notified. There is no clarity as to when it will be made effective. At present, any acquisition, merger or amalgamation falling within the ambit of the thresholds constitutes a combination.

Section 5 states that:

The acquisition of one or more enterprises by one or more persons or merger or amalgamation of enterprises shall be a combination of such enterprises and persons or enterprises, if-

 

(a) any acquisition where-

(i) the parties to the acquisition, being the acquirer and the enterprise, whose control, shares, voting rights or assets have been acquired or are being acquired jointly have,-

(A) either, in India, the assets of the value of more than rupees one thousand crores or turnover more than rupees three thousand crores; or

(B) in India or outside India, in aggregate, the assets of the value of more than five hundred million US dollars or turnover more than fifteen hundred million US dollars; or

 

(ii) the group, to which the enterprise whose control, shares, assets or voting rights have been acquired or are being acquired, would belong after the acquisition, jointly have or would jointly have,- (A) either in India, the assets of the value of more than rupees four thousand crores or turnover more than rupees twelve thousand crores; or (B) in India or outside India, in aggregate, the assets of the value of more than two billion US dollars or turnover more than six billion US dollars; or

 

(b) acquiring of control by a person over an enterprise when such person has already direct or indirect control over another enterprise engaged in production, distribution or trading of a similar or identical or substitutable goods or provision of a similar or identical or substitutable service, if-

(i) the enterprise over which control has been acquired along with the enterprise over which the acquirer already has direct or indirect control jointly have,- (A) either in India, the assets of the value of more than rupees one thousand crores or turnover more than rupees three thousand crores; or (B) in India or outside India, in aggregate, the assets of the value of more than five hundred million US dollars or turnover more than fifteen hundred million US dollars; or

(ii) the group, to which enterprise whose control has been acquired, or is being acquired, would belong after the acquisition, jointly have or would jointly have,- (A) either in India, the assets of the value of more than rupees four thousand crores or turnover more than rupees twelve thousand crores; or (B) in India or outside India, in aggregate, the assets of the value of more than two billion US dollars or turnover more than six billion US dollars; or

 

(c) any merger or amalgamation in which-

(i) the enterprise remaining after merger or the enterprise created as a result of the amalgamation, as the case may be, have,- (A) either in India, the assets of the value of more than rupees one thousand crores or turnover more than rupees three thousand crores; or (B) in India or outside India, in aggregate, the assets of the value of more than five hundred million US dollars or turnover more than fifteen hundred million US dollars; or

(ii) the group, to which the enterprise remaining after the merger or the enterprise created as a result of the amalgamation, would belong after the merger or the amalgamation, as the case may be, have or would have,- (A) either in India, the assets of the value of more than rupees four thousand crores or turnover more than rupees twelve thousand crores; or

(B) in India or outside India, the assets of the value of more than two billion US dollars or turnover more than six billion US dollars.

 

CROSS BORDER MERGERS AND THE POWERS OF THE COMMISSION

Expectations regarding the enforcement ambitions of the Competition Commission of India(hereinafter CCI) along with risks of hefty financial penalties for firms as well as imprisonment for individuals means that it is vital for all companies that deal with India to factor antitrust law into decisions affecting their Indian businesses. Antitrust impacts on firms’ longer-term as well as day-to-day operational issues. Additionally, antitrust must be factored into the due diligence and contractual negotiation processes of mergers and acquisitions to ensure that any risks arising from antitrust compliance are addressed properly. The powers of merger review of CCI thus impacts the feasibility of certain deals. The Competition Act, 2002(hereinafter CA) introduces three enforcement areas usually found in modern competition law regimes: prohibition of anticompetitive agreements , prohibition of abuse of dominance and merger regulation . Many concepts of the new law are similar to those found in other jurisdictions, such as European Union or US competition law.

But since the market conditions are very different in India, these concepts may not be interpreted or applied in the same way . The first confession that needs to be made and accepted without any reservations is that in an interdependent world economy everything affects everything else.

Economic and industrial globalization has increased international competition and given rise to the need for an increasingly integrated and evolving legal system. A number of trends have contributed to the accelerated globalization of industry and the integration of international economies. For instance, the growing similarity in available infrastructure, distribution channels, and marketing approaches has enabled companies to introduce products and brands to a universal marketplace . However this is not to suggest that the Competition Act, 2002(hereinafter CA) should govern all the international economic conduct. There is a need to identify ways of distinguishing those international matters affecting Indian commerce sufficiently to warrant sufficient attention from our law.

It needs to be kept in mind that many ordinary difficulties of applying antitrust principles are compounded by the different mores and economic circumstances of international markets . These issues would have been at the background with a much lesser significance if the basis of jurisdiction was territorial and focused on the question as to where the relevant conduct occurred. However, with the judicially created “effects” test having come to the fore and the rise of its dominance these issues have acquired tremendous prominence.

 

Commission’s Extra-Territorial Powers

Section 32 of the Competition Act explicitly allows the Competition Commission to examine a combination already in effect outside India and pass orders against it provided that it has an ‘appreciable adverse effect’ on competition in India. This power is extremely wide and allows the Competition Commission to extend its jurisdiction beyond the Indian shores and declare any qualifying foreign merger or acquisition as void.

An ‘appreciable adverse effect’ on competition means anything that reduces or diminishes competition in the market. Section 32 states that

The Commission shall, notwithstanding that,- (a) an agreement referred to in section 3 has been entered into outside India; or (b) any party to such agreement is outside India; or (c) any enterprise abusing the dominant position is outside India; or (d) a combination has taken place outside India; or (e) any party to combination is outside India; or (f) any other matter or practice or action arising out of such agreement or dominant position or combination is outside India, have power to inquire into such agreement or abuse of dominant position or combination if such agreement or dominant position or combination has, or is likely to have, an appreciable adverse effect on competition in the relevant market in India

 

The wording of Section 32 succinctly lays down the scope of the applicability of the provision as far as the subject matter is concerned. It shall apply to:

• Anti-competitive agreements

• Abuse of dominant position

• Combinations

 

Combinations in the terminology of CA or cross border mergers have thus been included within the domain of the regulatory and investigative powers of the Commission. This provision needs to be read along with Section 18 of CA. Section 18 specifies in rather generic terms the duties of the Commission and the steps it can take to perform its functions under CA. It states that:

Subject to the provisions of this Act, it shall be the duty of the Commission to eliminate practices having adverse effect on competition, promote and sustain competition, protect the interests of consumers and ensure freedom of trade carried on by other participants, in markets in India: Provided that the Commission may, for the purpose of discharging its duties or performing its functions under this Act. enter into any memorandum or arrangement with the prior approval of the Central Government, with any agency of any foreign country

 

Appreciable Adverse Effect

The Commission has been granted wide powers under Section 32 read with Section 18 of CA. However, the caveat is that such agreement or abuse of dominant position or combination if such agreement or dominant position or combination has, or is likely to have, an appreciable adverse effect on competition in the relevant market in India.

 

Section 20(4) is indicative of the factors or the circumstances when ‘appreciable adverse effect on competition’ can be inferred. There are fourteen factors under this subsection and any one or all shall have to be considered by the Commission so as to ascertain the cause of AAEC in any given case:

1. actual and potential level of competition through imports in the market;

2. extent of barriers to entry into the market;

3. level of competition in the market;

4. degree of countervailing power in the market;

5. likelihood that the combination would result in the parties to the combination being able to significantly and sustainably increase prices or profit margins;

6. extent of effective competition likely to sustain in a market;

7. extent to which substitutes are available or are likely to be available in the market;

8. market share, in the relevant market, of the persons or enterprise in a combination, individually and as a combination;

9. likelihood that the combination would result in the removal of a vigorous and effective competitor or competitors in the market;

10. nature and extent of vertical integration in the market;

11. possibility of a failing business;

12. nature and extent of innovation;

13. relative advantage, by way of the contribution to the economic development by any combination having or likely to have appreciable adverse effect on competition;

14. whether the benefits of the combination outweigh the adverse impact of the combination, if any.

 

However, there is nothing to indicate that is the list is exhaustive. The exercise of the powers of the Commission over cross border mergers is crucially hinged on the meaning that the phrase ‘appreciable adverse effect on competition’ is given and how the jurisprudence surrounding the phrase develops.

The test thus laid down under the Act is that the Commission can investigate into a cross border merger taking place outside India if the (i) agreement or (ii ) abuse of dominant position or (iii) combination has or is likely to have an appreciable adverse affect on competition in the relevant market in India. Cross border merger regulation in India has only been partly taken care under the regulatory landscape of Securities and Exchange Board of India(SEBI). With the emergence of the new Competition Law regime in India a host of issues need to be looked into as far as cross border merger regulation is concerned and recognize the need to find a purposive solution to the possible conflicts and grey areas.

 

Example:

Air India and Indian (erstwhile Indian Airlines) have combined. Consequent upon that, the market share of the combined entity has increased considerably. The enhanced market share may cause, barriers to entry to other competitors; (competitors may not have market to trade), rise in passenger fares and poor quality of service.

On the contrary, it may not cause any concern at all if we look at the following factual issues:

(1) passengers have wider choice (Jet Airways, Spicejet, Kingfisher, Air Deccan, Indigo, Go Air, foreign airlines etc.);

(2) with wider choice, the combined entity may not be able to create entry barriers; and

(3) in order to maintain an optimal passenger base (for successful and viable business venture) the combined entity may have to provide competitive level price for tickets and maintain highest or at least similar levels of quality of services that its competitors would extend.

 

The Companies Act, 1956 and SEBI Act, 1992 (though mutually exclusive) aim to protect the interests of private individuals. Whereas, in the Competition Act, 2002, the impact of combinations directly affects the market and the players in the market including the consumers. We may, therefore, safely say that apart from the fact that all these legislations are mutually exclusive, the Companies Act, 1956 and the SEBI Act, 1992 are the sub-sets of Competition Act, 2002 in so far as legal scrutiny of mergers are concerned.

 

MERGER CONTROL UNDER THE COMPETITION ACT, 2002

Legislative Background 

The provisions of Competition Act, 2002, s.5 relating to regulation of combinations have been sought to check concentration of economic power. The Monopolies Inquiry Commission (1964-65) divided concentration of economic power in two broad categories, namely product wise concentration and country- wise concentration. Vertical and conglomerate mergers were relevant to be considered in the context of country-wise concentration, i.e.-, to say concentration of over-all economic power. The MRTP Act, 1969 thus regulated mergers, amalgamations and takeovers by providing for their approval by the Central Government.

To turn a new leaf to the obsolete competition laws laid down in the MRTP Act, 1969, the Report of the High level Committee on Competition Policy and Law was submitted by the Raghavan Committee that was constituted for this very purpose.

The Committee suggested revival of earlier provision for seeking approval of Competition Commission relating to mergers, amalgamations, acquisitions and takeovers with certain threshold limit of asset such value of the merged entity or the group to which it belonged.

As in the case of agreements, mergers are typically classified into horizontal and vertical mergers. In addition, merger between enterprises operating in different markets are called conglomerate mergers.

Mergers are a legitimate means by which firms may grow and are generally as much part of the natural process of industrial evolution and restructuring as new entry, growth and exit. From the point of view of competition policy it is horizontal mergers that are generally the focus of attention.

As in the case of horizontal agreements, such mergers have a potential for reducing competition. In rare cases, where an enterprise in a dominant position makes a vertical merger with another firm in (vertically) adjacent market to further entrench its position of dominance, the merger may provide cause for concern. Conglomerate mergers must generally be beyond the purview of any law on mergers.

Thus, the general principle, in keeping with the overall goal, is that mergers must be challenged only if they reduce or harm competition and adversely affect welfare.

Another important issue with regard to mergers that needed to be addressed according to the Committee was regarding the requirements for prior notification. There were two possibilities. The first is that approval or disapproval of the merger may be obtained possibly within a specified time) before going ahead with the merger. This will be subject to a threshold requirement based on assets or market share. The second option is that no notification of permission is required and that the threat of action in case of a violation must generally enforce legal behaviour. Although both the US and EU laws require prior approval for mergers above certain thresholds, they also impose a timeless requirement on the relevant authority, with delays being subject to limitation. However, there is no pre-notification requirement in the existing UK law.

The Committee apprehending that a prior approval is likely to lead to delays and unjustified bureaucratic interventions did away with it in the Indian context as well. This according to them was likely to hamper the vital process of industrial evolution and restructuring and is, thus, not recommended. In any case, all mergers have to be approved by the High Court under the Companies Act, 1956 and shareholders’ interests are protected in this way.

It may also be stipulated that if no reasoned order is received within a time limit, say of 90 days, prohibiting the merger, the merger must be deemed to have been approved.

The current Competition Act, 2002, s. 5 which deals in particular with combinations-which includes mergers, is based on the above recommendations of the Raghavan Committee.

 

Mergers and Amalgamations

Mergers and amalgamations with the threshold limit as to the value of assets and turnover under Competition Act, 2002, s. 5, cls. (c) are covered.

Mergers or Amalgamations may be broadly classified as follows:

(1) cogeneric—within same industries, (which are of two types, horizontal merger and vertical merger); and

(2) conglomerate—between unrelated businesses.

 

APPROVAL OF NATIONAL COMPANY LAW TRIBUNAL UNDER THE COMPANIES ACT, 1956

The Companies Act, 1956, ss. 394 read with 391 provides for approval of the Tribunal (in place of High Court) for any compromise or arrangement proposed between a company and its shareholder and/or its creditors where the compromise or arrangement has been prepared for the purposes of, or in connection with, a scheme for reconstruction of any company or the amalgamation of any two or more companies or where the whole or any part of the undertaking or properties or liabilities of any company concerned in the scheme is to be transferred to another company.

The Tribunal may consider the scheme of arrangement or amalgamation after obtaining consent of shareholders and creditors of the transferor and transferee companies. This is an additional requirement for the companies concerned apart from seeking clearance from the Competition Commission. A listed company, that is, a company whose shares are listed for public dealing in any recognised stock exchange is also required lo comply with the requirements of Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeovers) Regulations, 1997. In terms of these Regulations, if an acquirer acquires 15 per cent or more of the shares or voting rights of any company, the acquirer will make public announcement to acquire shares in accordance with the regulations.

 

 

PROVISIONS UNDER THE MRTP ACT, 1969 VIS-À-VIS THE COMPETITION ACT, 2002

In the MRTP Act, 1969, ss. 23 read with 20 states that the originally required approval of the Central Government for any scheme of merger or amalgamation or any proposed takeover relating to an undertaking the value of assets of which (along with its interconnected undertakings) was not less than Rs. 100 crores or which was a dominant undertaking having the value of assets (alongwith its inter- connected undertakings) not less than Rs. one crore.

These provisions were deleted by the MRTP (Amendment) Act, 1991 and the said provisions of law have again been revived under the Competition Act, 2002, s. 5 with certain changes as to the threshold limit of the value of assets or turnover. The concept of assets/turnover ‘outside India’ is, however, new in the Competition Act, 2002. No distinction has been made under the Competition Act, 2002, between different types of mergers or amalgamations. Instead of restricting the regulatory framework to only horizontal mergers, vertical and conglomerate mergers have also been covered under the Competition Act, 2002, although they are primarily meant to curb concentration of economic power.

Under the extent provisions the power has been vested in the Competition Commission while under the MRTP Act, 1969, the power was rested with the Central Government. It is a modern piece of economic legislation. Worldwide, competition or anti-trust laws have three main contours. They are:

(1) prohibition of anti-competitive agreements;

(2) prohibition of abuse of dominance; and

(3) regulating mergers amd acquisitions.

Indian law has all these essential ingredients of anti-competitive practice provisions. Anti-competitive agreements and abuse of dominance are intended to be prohibited by orders of the Commission; whereas, combinations (mergers etc) are to be regulated by orders. This distinction in law indicates the intentions of the legislators.

Combinations ensure economic growth, more economic opportunities for businesses to compete with their overseas counterparts and consumer welfare ultimately. On the other hand, anti-competitive combinations harm markets and subvert the interests of the consumers. In amicable and consensual mergers the parties have a unanimity of interests and any Competition Authority would really have not much to do but to allow such proposals.

On examination of Annual Reports of several Competition Authorities it is seen that in almost all jurisdictions across the globe 90 per cent cases of merger notifications are allowed and in the remaining 10 per cent cases they are either modified or rejected. This clearly indicates that our law is moving in the right direction. Besides, it is a regulatory act of the Commission, there are at lease four ‘filters’ available in the law before a notification of merger may be taken up for investigation and inquiry by the Competition Commission of India. The filters are as under:

(1) establishment of ‘prima facie’ case – s. 29

(2) exceeding thresholds – s. 5

(3) establishing AAEC in relevant market – s. 20(4) (4) effect in relevant market only – ss. 19(5) to (7)

 

Apart from the aforesaid conditions required to be fulfilled before any matter is formally admitted for inquiry and investigation, the AAEC also needs to be happening in a relevant product/geographic market in India. If the cause of AAEC is not conclusively proved to have happened in a relevant product/geographic market then again the action against a merger notification fails. In short, the entire process is business-friendly and not that the moment a reference or information comes to the Commission it sets out to serve a notice and then proceeds to pass quasi-judicial order.

The Competition Act, 2002 has mandatory provisions under s. 49 to promote the provisions of the law through public awareness campaigns amongst stakeholders. Besides, the Act also empowers the CCI under s. 64 to frame regulations to conduct the business of the CCI in accordance with the provisions of the enactment. When one reads these two provisions of the law together, one tends to believe, keeping the international best practices in view, that the CCI may also come up with Merger Guidelines for information of general public and stakeholders. The above guidelines clearly bring out the fact that the ‘acquirer’ and not the ‘target’ is the repository of all business, commercial and legal information and, therefore, it is the only entity that would be liable to share all such information with the Commission transparently before any acquisition (formal or informal) is taken up for clearance or otherwise.

Thus, a merger notification is generally a regulatory action between an ‘acquirer’ and the Commission unlike a prohibitory action of settling disputes between two parties. Secondly, on perusal of some of the Competition Authorities’ role in handling merger notification in some selected jurisdictions, it is reiterated that over 90 per cent cases are allowed by Competition Authorities in these jurisdictions and out of remaining ten per cent (or so) some are allowed with conditions and others are rejected outright. Combinations have been brought within the purview of the Competition Act. The acquisition of enterprises by persons, the acquisition of control by enterprises, and the merger or amalgamation of enterprises is considered combinations when their asset value and turnover cross certain threshold limits. S. 5 contains provisions regarding acquisitions, acquiring of control, mergers and amalgamations.

However, the Competition Act, 2002 does not delve into the repercussions of arrangements on competition. The Companies Act, 1956, s. 390 (b) defines the term arrangement as ‘including a re-organisation of the share capital of the company by the consolidation of shares of different classes, or by the division of shares into shares of different classes or, by both those methods’. This term is of wide import and includes all modes of re-o rganisation of the share capital, takeover of shares of one company by another including interference with preferential and other special rights attached to shares. Arrangements may have dire consequences on competition and must, therefore, be specifically included in the provisions regarding combinations under the Competition Act, 2002.

The Raghavan Committee (the committee that introduced the enactment) had suggested much lower limits than those mentioned above. But these limits were raised for the reason, that very few Indian companies are of international size and in the light of continuing economic reforms, opening up of trade, and foreign investment, a great deal of corporate restructuring is taking place in the country and that there is need for mergers, amalgamations as part of the growing economic process. This change also resulted in the exclusion of more enterprises with a lower asset value and turnover from the purview of this stipulation. It must be noted that although s. 5 limits its application to companies with the prescribed asset value and turnover limit, smaller companies are kept from being anti-competitive by virtue of Competition Act, 2002, s. 4 which prevents a company from abusing its dominant position.

Moreover, another prevailing dissenting opinion seems to be that a company’s assets do not accurately reflect the company’s presence in the market and instead only the turnover test should be used to check whether a merger leads to a monopoly or not. Therefore the cap of Rs. 1,000 crores of assets on mergers between single entities and of Rs.4,000 crores in case of groups should be done away with. The Competition Act, 2002, s. 6(2) gives enterprises and persons the option to notify the CCI of the proposed combination. However, it is subject to s. 6(1), which renders the proposed combination, if it has an adverse effect on competition, void ab initio. Furthermore, pursuant to the Competition Act, 2002, s. 20(1), the CCI can inquire into any combination, suo moto or upon receiving information, within one year from when such combination takes effect. The pre-notification option granted to enterprises under s. 6(2) and the power of the CCI to inquire suo moto under s. 20 may lead to an anomalous situation, since companies that do not exercise their option under s. 6(2) are not automatically exempt from the investigations of the CCI.

 

Example:

Company ‘A’ merges with company ‘B’. A and B do not consider their merger anti-competitive even though they have an asset value and turnover above the prescribed threshold limit. The two companies do not notify the CCI about their merger. The companies invest a large amount on their merger within the first six months. The CCI on receipt of information from a competitor carries out an inquiry and passes a judgment within one year of the merger, that the merger has an adverse effect on competition and must not take effect. In this case, the two merged companies will incur huge losses as a result of the CCI’s order.

All these inconsistency may be removed by making pre-notification of combinations mandatory for all enterprises that have the prescribed asset value and turnover. Competition Act, 2002, s. 6 refers to ss. 29, 30 and 31, which provide the procedure for investigation into the combination by the CCI. By virtue of s. 29(1), the CCI may issue a notice to the parties to a combination that the CCI considers anti-competitive, to show cause against an investigation into the combination. Under s. 29(2), the CCI may require the parties to a combination to publish the details of the combination. Pursuant to s. 29(3), the CCI may invite any person or member of the public affected or likely to be affected by the combination, to file a written objection. This provision gives the CCI excessive discretion to decide as to which persons are eligible to be invited to file their objection against the combination. The provision must, therefore, be amended to allow anyone affected by the combination to file a written objection against the combination.

Pursuant to the Competition Act, 2002, s. 31(2), the CCI may direct that the combination will not take place, if it is of the opinion that the combination will have an appreciable adverse effect on competition. S. 20(4) sets out the factors that the CCI must consider while determining whether a combination has an adverse effect on competition.

Under s.31(3), the CCI may also propose a modification to such combinations. However, the CCI must pass an order with respect to the combination within 90 days of the publication under s. 29(2), failing which, the combination is deemed to be approved by the CCI. And even though it might be asking for too much from the ‘already struggling to keep pace jury’, the 90 day rule if reduced to 30 days, might prevent unnecessary delays.

 

International Transactions

Competition Act, 2002, s. 32 permits the CCI to inquire into agreements, abuse of dominant position, or combinations taking place outside India, if they have or are likely to have an appreciable adverse effect on competition in the relevant market in India. As a result of a recession in the global market, a large number of companies are merging with other companies in order to consolidate their position. Consider a situation where there is a merger between tw o enterprises abroad, such as Compaq and Hewlett Packard, which have subsidiaries in India. The CCI will have the power to inquire into the combination abroad by virtue of s. 32. Therefore, international companies having subsidiaries in India will have to adhere to the provisions of the Competition Act, 2002, ss. 3, 4 and 5 when enacted. Referring to the above instance of Hewlett Packard and Compaq, if their asset value and turnover exceed the prescribed limits, they will have to notify the CCI about their combination.

Some critics of this enactment feel that the Committee’s fear of mergers seems to stem from the fear that they would lead to monopolies that may hamper competition. But there seems to be no reason why these may not be considered by the high courts, which necessarily have to approve mergers under the Companies Act, 1956.

Hence instead of an additional set of procedures before the Competition Commission that may lead to a delay, these issues may be addressed in a holistic and cohesive manner by the high court, where the commission may play an advocacy role. However, it is easy to point to the Microsoft’s case in the US in support of the Committee’s recommendation for the creation of a regulatory authority to prevent abuse of dominance.

 

Example:

Microsoft neatly executed the ‘embrace, extend and extinguish’ policy, which proved lethal to its friends and foes alike. The way the computer giant altered its programming language like Java to suit the Windows environment or the encryption language used by servers or the Windows 2000 system created an empire for windows, in which everything works best only if it is a Windows product.

And though India might not have a giant like Microsoft which requires a ten member committee today, it must always be remembered that precaution is better than cure and even though as of date, the competition law is not well established in India, the competition law is indeed forward looking because it keeps a watch on the behavior and the practices of firms such that no firm may abuse the freedom given to them and in the process create an economy which will enable all to enjoy the fruits of development through vigorous competition.

 

CONCLUSION

International examples can be of some assistance for the purpose of serving a broad guideline or a roadmap. They cannot be definitive for other jurisdictions where the legal systems are differently positioned. The routes taken by Europe and US need not be necessarily followed by India. They can be digressed from and other alternatives more suitable to the mores and needs of socio-economic scenario of India can be followed. In fact, the legislative and administrative mechanism for cross border merger control as prevalent in US and Europe can serve little purpose while determining the competition policy for India.

Practical experience has shown that the majority of mergers notified are cleared quite quickly. The Competition Act, 2002 itself lays down stringent time lines – the Commission must take a view within 90 working days from the day it has obtained complete information failing which the merger is deemed to have been approved . Further, the Commission may initiate suo-motu enquiry into merger only within a period of one year from the day the merger has taken effect . These provisions adequately dispel any apprehension of inordinate delay or unbridled scrutiny into mergers Further global experience suggests that hardly four per cent of the all notified mergers are taken up for a detailed scrutiny by the competition authorities, of which 50 per cent are approved, and a further 25 per cent are approved with modifications.

Even the proposed merger of the two largest steel producers in the world did not attract many competition concerns. Whereas the US authorities have already cleared the proposed merger, recent news reports indicate that the controversial Mittal Steel/ Arcelor takeover bid which has been notified to the European Commission will be cleared ‘due to the largely complementary nature of the combined group’ .In other cases, where the authority comes to the conclusion that a proposed merger would lead to an appreciable adverse effect on competition, it may yet allow the merger but subject to one of several directions including divestment, requiring access to essential inputs/ facilities, dismantling exclusive distribution agreements, removing no -competition clauses, imposing price caps or other restraints on prices, refrain from conduct inhibiting entry, and so on.

The Commission needs to swing into action undertaking substantial capacity building to implement the extra territorial jurisdiction that is embodied in the Competition Act, 2002. As India integrates at a fast pace with the global economy there is a need to ensure international co-operation to tackle cross border challenges.

Combinations are economic enhancing trade practices hence they necessarily need to be encouraged by all so as to ensure ultimate benefit to the end consumers. However, there is a flip side of it too. Today’s combination may be tomorrow’s dominance and though dominance is not frowned upon under the CA but its abuse surely is. Abuse of Dominance (AoD) is mandatorily prohibited under the law. Therefore, every acquirer (not the target) has to be Competition Law Compliant even post combination and has to remain so forever if it desires to remain in healthy business practices. Except sovereign functions and functions relating to Atomic Energy, Space Research, Defence and Currency – all commercial activities of the departments of Union and States and their statutory bodies come within the ambit of the CA, which warrants the policy makers to seriously consider taking suitable steps before it is too late. Likewise, any department of a government is also a procurer of goods and services even from a non-government agency – hence it too may fall prey to an anti-competitive practice of a private supplier and the law does not preclude it to refer such matters, if any, to the CCI against such private supplier.

Therefore, private – public participation is the need of the hour if one is serious about seeing the Competition Law in its full steam. The CCI too needs to have appropriate professional manpower to understand and then implement the provisions of the law effectively. Professional and academic institutes too need to upgrade their academic curricula so as to provide the future manpower to all stakeholders and help implement the intents and purposes of this legislation for overall economic and social well being of the country.

– By Rohit Choudhary

Restitution of Conjugal Rights : A Comparative Study among Indian Personal Laws

– ANUJA AIYAPPAN

CHAPTER 1

 

1.1 Restitution of Conjugal Rights: Concept and Origin

Marriage under all matrimonial laws is union imposing upon each of the spouses certain marital duties and gives to each of them certain legal rights. The necessary implication of marriage is that parties will live together. Each spouse is entitled to comfort consortium of the other. So after the solemnisation of the marriage if either of the spouses without reasonable excuse withdraws himself or herself from the society of the other then aggrieved party has a legal right to file a petition in the matrimonial court for restitution of conjugal rights. The court after hearing the petition of the aggrieved spouse, on being satisfied that there is no legal ground why the application shall be refused and on being satisfied of the truth of the statements made in the petition may pass a decree of restitution of conjugal rights.

A decree of restitution of conjugal rights implies that the guilty party is ordered to live with the aggrieved party. Restitution of conjugal rights is the only remedy which could be used by the deserted spouse against the other. A husband or wife can file a petition for restoration of their rights to cohabit with the other spouse. But the execution of the decree of restitution of conjugal rights is very difficult. The court though is competent to pass a decree of restitution of conjugal rights, but it is powerless to have its specific performance by any law. The non-compliance of the issued decree results to constructive destruction on the part of the erring spouse. At present as per the provisions available under the Indian personal laws, the aggrieved party move a petition for a decree of divorce after one year from the date of the passing of the decree and the competent court can pass a decree of divorce in favour of the aggrieved party. The decree of restitution of conjugal rights can be enforced by the attachment of property, and if the party complained against still does not comply, the Court may also punish him or her for contempt of court. But under no circumstances the court can force the erring spouse to consummate marriage. Decree of restitution of conjugal rights could be passed in case of valid marriages only.

As stated by Paras Diwan, the remedy of restitution of conjugal rights was neither recognized by the Dharmashastra nor did the Muslim law made any provisions for it. It came with the Raj. Restitution of conjugal rights has its roots in feudal England, where marriage was considered as a property deal and wife was part of man’s possession like other chattels. The concept of restitution of conjugal rights was introduced in India in the case of Moonshee Buzloor Ruheem v. Shumsoonissa Begum , where such actions were regarded as considerations for specific performance.

In modern India, the remedy is available to Hindus under Section 9 of the Hindu Marriage Act, 1955, to Muslims under general law, to Christians under Section 32 and 33 of the Indian Divorce Act, 1869, to Parsis under Section 36 of the Parsi Marriage and Divorce Act, 1936 and to persons married according to the provisions of the Special Marriage Act, Section 22 of the Special Marriage Act, 1954.

The provisions for restitution of conjugal rights are identical in Section 22 the Special Marriage Act, 1954 and Section 9 of the Hindu Marriage Act, 1955. It is as follows:

“Restitution of conjugal rights

When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.

Explanation: Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.”

 

The restitution of conjugal rights is often regarded as a matrimonial remedy. The remedy of restitution of conjugal rights is a positive remedy that requires both parties to the marriage to live together and cohabit.

 

The conceptualization of the provision for restitution of conjugal rights under Muslim law by Tayabji is as follows: 

“Where either the husband or wife has, without lawful ground withdrawn from the society of the other, or neglected to perform the obligations imposed by law or by the contract of marriage, the court may decree restitution of conjugal rights, may put either party on terms securing to the other the enjoyment of his or her rights”

Thus the Muslims equate this concept with securing to the other spouse the enjoyment of his or her legal rights. Earlier, it was also attached with the specific performance of the contract of marriage. In Abdul Kadir v. Salima , the Allahbad High Court decided that the concept of restitution must be decided on the principles of Muslim Law and not on the basis on justice, equity and good conscience.

 

To sum up, under all personal law, the requirements of the provision of restitution of conjugal rights are the following:

• The withdrawal by the respondent from the society of the petitioner.

• The withdrawal is without any reasonable cause or excuse or lawful ground.

• There should be no other legal ground for refusal of the relief.

• The court should be satisfied about the truth of the statement made in the petition.

1.2 Sufficient Cause for Withdrawal and Burden of Proof

 

The fundamental rule of matrimonial law that one spouse is at liberty to the society and comfort of the other spouse, forms the foundation of the right to bring a suit for the restitution of conjugal rights. The court has the duty of granting a decree for restitution in the cases where either spouse has abandoned or withdrawn from the society of the other. When the question arises whether there has been reasonable excuse for the withdrawal of the respondent from the society of the aggrieved party, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society. But this concept is only secondary in nature. The primary object of showing proof or onus rests with the petitioner. Once the petitioner has proved his/her case, the burden of proof then shifts to the other party to prove the defence of a ‘reasonable excuse or cause’. Here the term ‘society’ corresponds to cohabitation, and ‘withdrawal’ signifies cessation of that cohabitation and bringing to end consortium. This must be a voluntary act of the respondent.

 

In Sushila Bai v. Prem Narayan, the husband deserted his wife and thereafter was totally unresponsive towards her. This behaviour was held sufficient to show that he had withdrawn from the society of his wife, and therefore the wife’s petition for restitution of conjugal rights was allowed. The defence to this principle lies in the concept of a ‘reasonable excuse’. If the respondent has withdrawn from the society of his spouse for a valid reason, it is a complete defence to a restitution petition. The court will normally order restitution of conjugal rights if:

i. The petitioner proves that the respondent spouse has without reasonable excuse withdrawn from his/her society

ii. The statements made by the aggrieved spouse in the application are true, and

iii. There is no legal ground why the petitioner’s prayer should not be granted

 

The court has held in various cases that the following situations will amount to a reasonable excuse to act as a defence in this area:

i. A ground for relief in any matrimonial cause.

ii. A matrimonial misconduct not amounting to a ground of a matrimonial cause, if sufficiently weighty and grave.

iii. Such an act, omission or conduct which makes it impossible for the petitioner to live with the respondent.

 

It is significant to note that unlike a decree of specific performance of contract, for restitution of conjugal rights, the sanction is provided by the court where the disobedience to such a decree is wilful that is deliberate, in spite of opportunities.

 

 

CHAPTER 2

2.1 Constitutionality: Relief of Restitution of Conjugal Rights

During the time of introducing the provision for restitution of conjugal rights in the Special Marriage Act, 1954 and the Hindu Marriage Act, 1955, there were heated debates in the Parliament for and against it. In Shakila Banu v. Gulam Mustafa , the Hon’ble High Court observed:

“(The concept of restitution of conjugal rights) is a relic of ancient times when slavery or quasi-slavery was regarded as natural. This is particularly so after the Constitution of India came into force, which guarantees personal liberties and equality of status and opportunity to men and women alike and further confers powers on the State to make special provisions for their protection and safeguard.”

 

The constitutional validity of the provision for restitution of conjugal rights has time and again been questioned and challenged. The earliest being in 1983 before the Andhra Pradesh High Court in T.Sareetha v. T. Venkatasubbaiah where the Hon’ble High Court held that the impugned section was unconstitutional. The Delhi High Court in Harvinder Kaur v Harminder Singh though had non-conforming views. Ultimately Supreme Court in Saroj Rani v. Sudharshan gave a judgment which was in line with the Delhi High Court views and upheld the constitutional validity of the Section 9 of the Hindu Marriage Act, 1955 and over-ruled the decision given in T. Sareetha v. T. Venkatasubbaiah .

 

2.2 Application of the Provision in Different Communities

The restitution of conjugal rights is one of the reliefs that are provided to the spouses in distress in the institution of marriage by law. Decree of restitution of conjugal rights could be passed in case of valid marriages only. Apart from legislation relating to matrimonial law, courts in India in case of all communities have passed decrees for restitution of conjugal rights.

 

2.2.1 Hindu

Section 9 of the Hindu Marriage Act, 1955 provides for the restitution of the conjugal rights. The aggrieved party may apply, by petition to the District Court, for the restitution of conjugal rights. One of the important implications of Section 9 of the Hindu Marriage Act, 1955 is that it provides an opportunity to an aggrieved party to apply for maintenance under Section 25 of the Hindu Marriage Act, 1955. Maintenance can also be obtained by the party in case when the action is pending under Section 25 of the Hindu Marriage Act, 1955. So, a wife who does not want a judicial separation or disruption of marriage can attain maintenance from her husband without filing a suit for the same under the Hindu Adoptions and Maintenance Act, 1956. Another important implication of the section is that it provides a ground for divorce under Section 13(1A) of the Hindu Marriage Act, 1955 on a condition that there has been no restitution of conjugal rights between them for a period of one year or more after the passing of a decree for restitution of conjugal rights. The legal grounds for refusing to grant relief are:

• For instance, any ground on which the respondent could have asked for a decree for judicial separation or for nullity of marriage or for divorce;

• Reasonable excuse for withdrawing from the society of the petitioner;

• Any conduct on the part of the petitioner or fact tantamount to the petitioner taking advantage of his or her own wrong or any disability for the purpose of such relief;

• Unnecessary or improper delay in instituting the proceeding.

 

2.2.2 Muslim

If the husband either deserts a wife or neglects to perform his marital obligations without any proper reason, then the wife can apply for restitution of conjugal rights. Even husband can apply for restitution of conjugal rights. But the court can refuse to grant order of restitution of conjugal rights for following reasons:

• Cruelty by husband or in-laws

• On the failure by the husband to perform marital obligations

• On non-payment of prompt dower by the husband

 

2.2.3 Christian

A Christian husband and wife can also apply for an order of restitution of conjugal rights. The Court cannot pass the decree for following reasons:

• Cruelty of husband or wife

• If either of the spouse is insane

• If any one of the spouse marries again

 

2.2.3 Parsi

Where a husband/wife shall have deserted or without lawful cause ceased to cohabit with his/her spouse, the party so deserted or with whom cohabitation shall have so ceased, may sue for the restitution of his or her conjugal rights and the court if satisfied of the truth of the allegations contained in the plaint and that there is no just ground why relief should not be granted, may proceed to decree such restitution of conjugal rights accordingly.

 

 

CHAPTER 3

3.1 Provisions for Restitution of Conjugal Rights under Hindu, Christian and Muslim Law

When either of the spouses has withdrawn from the society of the other without reasonable cause, the other person may file a suit for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955. Similarly a Christian husband or wife can file a petition for restitution of conjugal rights under Section 32 and 33 of the Indian Divorce Act, 1869. The provision under Muslim law is almost the same as under the modern Hindu law, though under Muslim law a suit in a civil court has to be filed and not a petition as under other laws. A petition for restitution of conjugal rights is maintainable only when there is a valid marriage.

The concept of gender discrimination has not been incorporated in the Hindu Marriage Act, 1955 and all are treated as equals under the Section 9. There is no classification of sexes in Section 9 and all equals have been treated equally in this area. In Hyde v. Hyde and Woodmansee , the status of partners in Christian marriage was stated as “Marriage has been well said to be something more than a contract, either religious or civil – to be an Institution. It creates mutual rights and obligations, as all contracts do, but beyond that it confers a status. The position or status of “husband” and “wife” is a recognised one throughout Christendom: the laws of all Christian nations throw about that status a variety of legal incidents during the lives of the parties, and induce definite lights upon their offspring.” While in Muslim law where a wife refuses to live with her husband without any lawful cause, the husband can sue for the restitution of conjugal rights and likewise the wife has the right to demand for the fulfilment of marital duties by the husband. But this right is not absolute as the Muslim husband being dominant in matrimonial matters, and as the Quran enjoins the husband to retain his wife with kindness or to dismiss her with kindness, the Court leans in favour of the wife and requires strict proof of all allegations necessary for matrimonial relief. Under the Muslim law a Muslim husband can defeat wife’s petition for restitution at any time by pronouncing talaq on her.

In Hindu law the relief of decree for restitution of conjugal rights is an equitable relief and equitable considerations must be considered before compelling the defendant to return to cohabitation with the plaintiff. Similar is the law with respect to the marriage governed by Mohammedan law and Christian law. Relief of restitution of conjugal rights is discretionary.

The defences for the restitution petition under the Hindu Marriage Act, 1955 and the Indian Divorce Act, 1869 is very broad and it puts down that if the withdrawal of the respondent from the society of the petitioner is “without reasonable excuse”, it is in defence to restitution petition. Under Muslim law, Tyabji has used the expression “without lawful ground”. It is accepted that the expression “without reasonable excuse” and “without lawful ground” should have same meaning.

Under the Hindu Marriage Act, 1955 anything which constitutes a ground for nullity, dissolution of marriage or judicial separation is a defence against a petition for restitution of conjugal rights. Accordingly under the Section 33 of the Indian Divorce Act, 1869 applicable for Christians nothing can be pleaded as defence against a petition for restitution of conjugal rights which would not be a ground for judicial separation or for a decree of nullity of marriage. Under Muslim law grounds of void and irregular marriages, marriage avoided by the exercise of option of puberty and other provisions under the Dissolution of Muslim Marriage Act, 1939, are defences for a petition for restitution of conjugal rights. A petition may also be rejected if the husband has been made an outcaste by his community.

A marriage in violation of the age prescribed under Section 5 (iii) of the Hindu Marriage Act, 1955 being neither void nor voidable, a decree for restitution of conjugal rights cannot be refused on the ground of the violation. For Indian Christian according to Section 60(1) of the Indian Christian Marriage Act, 1872 it is required that at the time of marriage the bride should not be less than eighteen years and bridegroom should not be less than twenty-one years. The non-age does not render the marriage void or voidable. Thus the marriage remains a valid marriage; a decree for restitution of conjugal rights cannot be refused.While in Muslim law under Section 2 (vii) of the Dissolution of Muslim Marriage Act, 1939 when the marriage has been avoided in the exercise of option of puberty the suit for restitution of conjugal rights fails.

As far as the Hindus and Christians are concerned the existence of a co-wife is a sufficient cause entitling the wife to withdraw herself from the society of her husband which can be taken as a defence by the wife against a restitution petition. While under Muslim law controlled polygamy is allowed. So, a Muslim wife cannot refuse the comfort-consortium to husband because of husband’s taking a second wife. But in certain situations, a husband’s second marriage may involve cruelty to the first wife justifying her refusal to live with him. In Itwari v Asghari , a restitution petition filed by the Muslim husband against his first wife the court had held that it cannot compel the wife to live with husband and can refuse the relief if the court feels that it would not be just and reasonable to do or it would be inequitable to pass decree. In India bigamous marriages are now to great extent disapproved by the courts. Some High Courts have considered it as cruelty by the husband and denied on that ground the relief of restitution of conjugal rights.

Cruelty need not always be physical and it can also be mental. The Section 13 (1) (ia) of the Hindu Marriage Act, 1955 can be used as defence of cruelty against a petition for restitution of conjugal rights. The definition of ‘cruelty’ or what all actions constitute cruelty has not been specified in the Hindu Marriage Act, 1955 or the Indian Christian Marriage Act, 1872 or the Indian Divorce Act, 1869. Thus, in Hindu law as well as Christian law the courts have the wide power and discretion to decide what constitute cruelty. While in Muslim law, Section 2 (viii) of the Dissolution of Muslim Marriage Act, 1939, both physical cruelty as well as legal cruelty together with all instances of cruelty is included under the definition of cruelty. The relief of restitution of conjugal rights can be denied to the husband if any of the instances of cruelty as given under the section are proved against him.

In Hindu law and Christian law, the separation agreements are not part of the matrimonial statutes. They are regulated by the general law of contract. While in Muslim matrimonial law the spouses are permitted to enter certain agreements, either at the time of marriage or even after. Also a valid separation agreement is a good defence to a suit for restitution of conjugal rights.

The concept of dower is specific to Mohammedan law only. A Muslim wife living separate from the husband on account of non payment of prompt dower, restitution of conjugal rights cannot be granted subjected to certain conditions. If the husband sues for restitution of conjugal rights before consummation of the marriage takes place then non-payment of dower is a complete defence to suit, and the suit will be dismissed. If the suit is brought after the consummation of the marriage then a decree for restitution of conjugal rights on payment of prompt dower is to be passed. There is no absolute right in a husband to claim restitution of conjugal rights against his wife unconditionally; the courts have discretion to make the decree conditional on the payment of her unpaid dower debt or to impose other suitable conditions considered just, fair and necessary in the circumstances of each case.

 

3.2 Conclusion

You can take a horse to the water, but you can’t make him drink, is a very popular proverb and the provision for restitution of conjugal rights under the Indian personal laws seems to be akin. The court can pass a decree for restitution of conjugal rights and order the erring spouse to cohabit with the aggrieved spouse. Also under the Indian law a decree of restitution of conjugal rights can be executed by attachment of the respondent’s property. But it is to be noted that the court cannot compel the defaulting spouse to physically return to the comfort-consortium of the decree-holder spouse.

As understood from the previous chapters, the restitution of conjugal rights is a part of the personal laws of the individual, thus they are guided by ideals such as religion, tradition and custom. A very important feature of restitution of conjugal rights to be emphasized is that it is a remedy is aimed at preserving the marriage and not at disrupting it as in the case of divorce or judicial separation. It serves to aid prevention of the breakup of marriage, thus is a means of saving the marriage. So the restitution of conjugal rights remedy tries in promoting reconciliation between the parties and maintenance of matrimonial. It tries to protect the society from denigrating. But the final decision is that of the parties whether to obey the decree of restitution of conjugal rights and to continue with the matrimony or not.

 

BIBILIOGRAPHY

Books:

1. V.P. Bharatiya, Syed Khalid Rashid’s Muslim Law, (4th ED. : 2004) (Eastern Book Company Lucknow)

2. Dr.Paras Diwan, Law of Marriage and Divorce, (5th ED. : 2008), (Universal Law Publishing Co)

3. M.N.Das, Marriage and Divorce, (6th ED. : 2002) (Eastern Law House New Delhi)

4. A.G.Gupte, Hindu Law, (1st ED. : 2003) (Premier Publishers Delhi)

5. S.P.Gupte, Hindu Law in British India, (2nd ED. : 1947) (Premier Publishers Delhi)

6. Asaf A.A.Fyzee, Outlines of Muhammadan Law, (5th ED. : 2008) (Oxford University Press New Delhi)

 

Articles:

1 Aditya Swarup, Constitutional Validity of Restitution of Conjugal Rights: Scope and Relevance, http://works.bepress.com/adityaswarup/8 , (Last Visited : Feb. 27, 2011)

2 Vimal Balasubrahmanyan, Conjugal Rights vs Personal Liberty: Andhra High Court Judgment, http://www.jstor.org/stable/4372307, (Last Visited : Mar. 03, 2011)

3 Vimal Balasubrahmanyan, Conjugal Rights: Shift in Emphasis Needed, http://www.jstor.org/stable/4373507, (Last Visited : Mar. 02, 2011)

4 Lucy Carroll, Talaq-i-Tafwid and Stipulations in a Muslim Marriage Contract: Important Means of Protecting the Position of the South Asian Muslim Wife, http://www.jstor.org/stable/312203, (Last Visited : Mar. 02, 2011)

5 Saloni Tuteja, Restitution Of Conjugal Rights: Criticism Revisited, http://www.legalserviceindia.com/articles/abol.htm, (Last Visited : Feb. 28, 2011)

6 Arlette Gautier, Legal regulation of marital relations: an historical and comparative approach, http://lawfam.oxfordjournals.org/content/19/1/47.abstract#target-1, (Last Visited : Mar. 11, 2011)

7 Frances Raday, Culture, religion and gender, http://wunrn.com/news/2008/03_08/03_03_08/030308_culture_files/030308_culture.pdf , (Last Visited : Mar. 10, 2011)

 

TABLE OF CASES:

1. Abdul Kadir v. Salima, ILR (1886) 8 All. 149

2. Abdul Karim v. Aminabai, AIR 1935 Bom. 308

3. Alopbai v. Ramphal Kunjhilal,AIR 1962 MP 211

4. Gurdial Kaur v. Mukand Singh, AIR 1967 Punj 235

5. Harvinder Kaur v. Harminder Singh, AIR 1984 Del. 66

6. Hyde v. Hyde and Woodmansee, (1866) LR 1 P. & D. 130

7. Itwar v Asghari , AIR 1960 All. 684

8. Kanna v Krishnaswami, AIR 1972 Mad. 247

9. Moonshee Buzloor Ruheem v. Shumsoonissa Begum, (1867) 11 MIA 551

10. Mt.Anis Begum v. Malick Muhammed Istefa Wali Khan, AIR 1933 All 634

11. Peddagiri v. Peddagiri,AIR 1963 AP 312

12. Raj Mohammad v. Saeeda Amina Begum, AIR 1976 Kant 200

13. Samraj Nadar v. Mohinder Singh , AIR 1970 Mad 434

14. Saroj Rani v. Sudharshan, AIR. 1984 SC 1562

15. Sukram v. Mishri Bai, AIR 1979 MP 144

16. Sushila Bai v. Prem Narayan, AIR 1964 MP 225

17. Shakuntala v. Babu Rao, AIR 1963 MP 10

18. Sushila Bai v. Prem Narayan, AIR 1964 MP 225

19. T.Sareetha v. T. Venkatasubbaiah, AIR 1983 AP. 356

20. Teja Singh v. Sarjit Kaur, AIR 1962 Punj 195

 

CHILD WITNESS

BY:ANUJA AIYAPPAN

CHAPTER 1

1.1 Witness: Meaning and Scope

Witnesses and document are the chief sources of evidence. A witness is a person who gives testimony or evidence before any court. As a matter of fact every person is competent to give evidence but in certain circumstances he may not be compelled to give evidence. As per Bentham, witnesses are the eyes and ears of justice. Often oral evidence is needed to clarify or help determine the rights and liabilities of the parties in a legal proceeding.

Witnesses can be the people or experts with valuable input for the case. It is through witnesses and documents that evidence is placed before the court. Even the genesis of documents can be proved by the witnesses. Thus, the law has to be very clear with regards to certain issues like who is a competent witness? How many witnesses are needed to prove a fact? Can a witness be compelled to answer every question posed? How can the credibility of the witnesses be tested? Whether a witness can refer to notes to refresh his memory and what are the judges standing with respect to the witnesses?

1.1.1 Who is a Witness?

A witness is a person who gives evidence or testimony before any tribunal. Section 118 of the Indian Evidence Act, 1872 generically lays down who may testify. Prima facie, the section says that everyone is competent to be a witness as long as they can understand and respond to the questions posed and the Court is expected to pay special attention to the capability of the witnesses. This section is not concerned with the admissibility of the testimony of the witnesses or their credibility; it deals with competency of parties to be witnesses. A witness has a privilege i.e. a right to refuse to give answer to the question. There are certain persons who enjoy certain privilege and they cannot be compelled to testify.

The competency of a witness is the condition precedent to the administration of oath or affirmation, and is a question distinct from that of his creditability when he has been sworn or has been affirmed.

1.1.2 Competency of Witnesses

A witness is said to be competent when there is nothing in law to prevent him from appearing in court and giving evidence. Whether a witness is competent, depends on his capacity to understand the question put to him and the capacity to give rational answers thereto. By competency to give evidence is meant that there is no legal bar against the person concerned to testify in a court.

The Section 118 of the Indian Evidence Act, 1872 makes all persons as competent to testify the questions put to them or from giving rational answers to those questions (a) by tender years, (b) extreme old age, or (c) disease. Thus understanding is the sole test of competency. The test of competency is the capacity to understand the questions and to give rational answers. The court has to ascertain, in the best way it can, whether from the extent of intellectual capacity and understanding he is able to give a rational account of what he has seen or heard or done on particular occasion.

A witness may be competent and yet not compellable he may have the power of understanding the question and may be able to give rational answers thereto, but may not be subject to the authority of the court; that is to say the court cannot compel him to attend and depose before it. In general a witness who is competent may be compellable. Again a witness is competent and also may be compellable yet the law may not force him to answer certain questions. This is called restricted compellability or privilege.

Thus, it can be said that every person is competent to give evidence provided he satisfied the test of the being able to understand the questions which are put to him, and he is in a position to give rational answers to those questions. Any person who satisfies these tests shall be competent to testify. A child, deaf and dumb persons can give evidence.

CHAPTER 2

2.1 Child Witness

Under Section 118 of the Indian Evidence Act, 1872 , a child can be competent witness. Before admitting or recording the statement of a child, the court must satisfy itself that:

1. The witness understands the questions, and

2. Ascertain in the best way it can, whether from the extent of his intellectual capacity and understanding he is able to give a rational account of what he has seen, heard or done on a particular occasion.

If a person of tender years can satisfy the requirements, his competency as a witness is established. This prevention is based on the presumption that children could be easily tutored and therefore can be made a puppet in the hands of the elders. In this regard the law does not fix any particular age as to the competency of child witness or the age when they can be presumed to have attained the requisite degree of intelligence or knowledge. To determine the question of competency courts, often undertake the test whether from the intellectual capacity and understanding he is able to give a rational and intelligent account of what he has seen or heard or done on a particular occasion. Therefore it all depends upon the good sense and discretion of the judge.

Although recognizing that children may be less likely than adults to give reliable testimony, the courts have been reluctant to hold that, because of age, children below the designated age are per se incompetent to testify. Rather, the competency of child witnesses of any age must be established on a case-by-case determination of whether the child’s testimony will enhance justice.

Do children make good witnesses, and are young children as reliable as older ones? Are they as reliable as adults? Are they more prone to lies or suggestion or errors of perception? Is it possible to identify features or characteristics which distinguish truthful child testimony from that which has been invented, or planted in the child’s mind by others? Can more be done to ease the stress or distress which giving evidence may involve?

Children are the most vulnerable of all witnesses. Several factors influence children’s memory capacity, including the child’s age, psychological development and intellectual ability, the complexity of the event, their familiarity with the event and the delay between the event and the time at which the event is recalled. The intimidation of potential child witnesses by interviewers remains a problem, and it is possible that false suggestions might be implanted in a child’s mind. Children could be easily tutored and therefore can be made a puppet in the hands of the elders. In this regard the law does not fix any particular age as to the competency of child witness or the age when they can be presumed to have attained the requisite degree of intelligence or knowledge. Although children’s evidence has historically been seen as weak, experimental studies have shown that when children are allowed to recall information “freely,” or when information is elicited through the use of general questions, even very young children can give evidence that is as accurate as that given by adults.

Two major concerns about child witnesses are their competence and credibility as witnesses. Although, children’s actual ability to provide accurate and reliable evidence is critical to their role as witnesses, so too is their perceive reliability. Unless children are perceived as reliable witnesses, their evidence will not be effective and may not even be heard. Even if children are capable of giving accurate evidence, their evidence will be of limited value unless they are perceived as credible witnesses by those dealing with them: lawyers, prosecutors, police and judges.

In Rameshwar S/o Kalyan Singh v. The State of Rajasthan, the Court examined the provisions of Section 5 of the Indian Oaths Act, 1873 and Section 118 of the Indian Evidence Act, 1872 and held that every witness is competent to depose unless the court considers that he is prevented from understanding the question put to him, or from giving rational answers by reason of tender age, extreme old age, disease whether of body or mind or any other cause of the same kind. There is always competency in fact unless the Court considers otherwise. The Court further held as under:

“…..It is desirable that Judges and magistrates should always record their opinion that the child understands the duty of speaking the truth and state why they think that, otherwise the credibility of the witness may be seriously affected, so much so, that in some cases it may be necessary to reject the evidence altogether. But whether the Magistrate or Judge really was of that opinion can, I think, be gathered from the circumstances when there is no formal certificate….”

In Suresh v. State Of Uttar Pradesh, it was decided that a child as young as 5 years can depose evidence if he understands the questions and answers in a relevant and rational manner. The age is of no consequence, it is the mental faculties and understanding that matter in such cases. Their evidence, however, has to be scrutinized and caution has to be exercised as per each individual case. The court has to satisfy itself that the evidence of a child is reliable and untainted.

2.2 Legality and Admissibility of Child Witnesses

All witnesses who testify in court must be competent or able to testify at trial. In general, a witness is assumed to be competent. This presumption applies to child witnesses. It is well known that the attitude of children to reality and truth differs widely from that of adults and that, while some young children will make fairly reliable witnesses, it is absurd to expect true testimony from others though older.

The traditional view about child witness is reflected in the United States Supreme Court’s 1895 decision in Wheeler v. United States. In that case the court held that the 5-year-old son of a murder victim was properly qualified as a witness:

“That the boy was not by reason of his youth, as a matter of law, absolutely disqualified as a witness, is clear. While no one would think of calling as a witness an infant only two or three years old, there is no precise age which determines the question of competency. This depends on the capacity and intelligence o f the child, his appreciation of the difference between truth and falsehood, as well as of his duty to tell the former. The decision of this question rests primarily with the trial judge, who sees the proposed witness, notices his manner, his apparent possession or lack of intelligence, and may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath.”

In Rameshwar v. State Of Rajasthan, the accused was convicted for the rape of an eight year old girl. The basis of this conviction was the statement made by the victim to her mother. On appeal the Sessions Court held that the evidence was sufficient enough to form the basis of a moral conviction, but was legally insufficient. When the matter reached to the High Court, it was held that no doubt the law requires corroboration but here this statement itself is legally admissible as corroboration. Later, the High Court granted leave to appeal and therefore the matter reached to Supreme Court, where it made observations with regard to the question of admissibility of the statement. The assistant Sessions judge certified that she did not understand the sanctity of an oath. But there was nothing to show whether the child understood her duty to speak the truth. The Apex Court observed that the omission to administer an oath goes only to the credibility of the witness and not his competency. Section 118 of the Indian Evidence Act, 1872 makes it very clear that there is always competency in fact unless the court considers otherwise and since there is nothing as to suggest incompetence, therefore Section 118 would prevail. It is desirable that the judge or magistrate should always record their opinion as to whether the child understands his duty to speak the truth and also to state that why they think that ,otherwise the credibility of the witness would be seriously affected, so much so, that in some cases it may be necessary to reject the evidence altogether. In the situations where the judge or the magistrate doesn’t make any express statement as to this effect then inferences has to be collected from the circumstances of the case. here, the assistant sessions judge omitted to administer the oath to the child as she could not understand its nature, but still continued to take her evidence , shows his intention to the fact that he was satisfied that the child understands her duty to speak the truth. Moreover, the accused also never raised any objection as to the same, at that stage. Though, Section 114 of the Indian Evidence Act, 1872, requires that every statement of an accomplice must be corroborated but a vast majority of cases show that it is not a very hard and fast rule, especially in rape cases and that too of a child of tender year. On the basis of the above observations the Supreme Court had affirmed the decision of the High Court.

The Supreme Court has held in Dalip Singh v. State Of Punjab, that if it appears from the version of teenaged children that it is so truthful that can be rightly believed then the arguments like children were tutored or had given the prosecution version parrot like and so on are not acceptable. It has been held by the Supreme Court that an omission to administer an oath, even to an adult, goes only to the credibility of the witness and not his competency. The question of competency is dealt with in Section 118 of the Indian Evidence Act, 1872 . It will be observed that there is always competency in fact unless the court considers otherwise. It has been further held been further held that an omission of the court of the authority examining a child witness, formally to record that in its opinion the witness understands the duty of speaking the truth, though he does not understand the nature of an oath or affirmation, does not affect the admissibility of the evidence given by that witness.

In State of Maharashtra v. Dama Gopinath Shinde, it was held by the Supreme Court that a girl of seven years of age has lost her neighbour and playmate, the deceased, while they were playing together. Later on the dead body of the deceased was recovered. It was held by Supreme Court that the rejection of testimony of child solely on the ground that it was not possible for a child of that age to remember what happened three years ago was not proper.

In Suresh v. State of Uttar Pradesh case, it was held that a child who is not administered oath due to his young years and is not required to give coherent or straight answers as a privileged witness can give evidence but this evidence should not be relied upon totally and completely.

Thus the competency of a child to give evidence is not regulated by the age but by the degree of understanding he appears to possess and no fixed rule can be laid down as to the credit that should be assigned to his testimony. The question depends upon a number of circumstances such as the possibility of tutoring the consistency of the evidence, how far it stood the test of cross examination and how far it fits in with the rest of evidence.

 

CHAPTER 3

3.1 Competency of Child Witness

The competency of children as witnesses presents an ancient problem faced by every system of jurisprudence. The courts are aware that children often witness crucial events associated with pending litigation. And, likewise, the courts are cognizant of the limitations of children on the stand. A tendency to interweave imagination with fact, to recite testimony propounded by parents and counsel, to unconsciously invoke the sympathy of a jury, to prejudice a defendant’s case by the propensity of a jury to rely too heavily upon a child’s testimony are a few of the complexities that have disturbed the legal profession.

In order to be a competent witness, a child has to have sufficient intelligence. The child has to be able to remember and describe events and must understand the difference between the truth and a lie. Even very young children can be competent witnesses. Various factors affect the reliability or a child’s testimony. In determining a child’s competency to testify, the courts have tended to place primary emphasis o n the child’s ability to differentiate truth from falsehood, to comprehend the duty to tell the truth, and to understand the consequences of not fulfilling this duty. This inquiry has often followed a line of questions on Voir dire directed toward ascertaining a child’s religious and moral beliefs. The child need not, however, understand the legal and religious nature of an oath.

While necessary, adherence to the truth is not sufficient to establish competency. There is also a necessity that the child has cognitive skills adequate to comprehend the event he or she witnessed and to communicate memories of the event in response to questions at trial. If a child’s view of the truth bears little resemblance to reality, it will also have little value to the Trier of fact. Thus, competency to testify implies some measure of competency at the time of the event witnessed as well as at the time of the trial. The child must be able to organize the experience cognitively and to differentiate it from his or her other thoughts and fantasies. Furthermore, the child must be able to maintain these skills under psychological stress and under pressure, real or perceived, from adult authority figures to shape his or her responses in a particular way. Thus, level of suggestibility is an important factor. The assessment of a child’s competency to testify may require a rather extensive and formal assessment of the child’s cognitive, moral, and emotional capacities on Voir dire.

In State v. Allen, it was observed that the burden of proving incompetence is on the party opposing the witness. The Court considered five factors when determining competency of a child witness. Absence of any of them renders the child incompetent to testify. They are:

  • 1. An understanding of the obligation to speak the truth on the witness stand;
  • 2. The mental capacity at the time of the occurrence concerning which he is to testify, to receive an accurate impression of it;
  • 3. A memory sufficient to retain an independent recollection of the occurrence;
  • 4. The capacity to express in words his memory of the occurrence; and
  • 5. The capacity to understand simply questions about it.

The plain and simple test of competency is whether a witness can understand the questions being posed to him and answer accordingly in a rational manner. Competency of witness to testify is actually a prerequisite to him being administered an oath. In Rameshwar v. State Of Rajasthan, it was held that an omission to administer an oath, even to an adult, goes only to the credibility of the witness and not to his competency.

In M.Sugal v. The King, it was decided that a girl of about ten years of age could give evidence of a murder in which she was an eye-witness as she could understand the questions and answer them frankly even though she was not able to understand the nature of oath.

Child witness as far as defence is concerned is dangerous witness. Because once tutored they stick on that version in any circumstances. The court can check for a level of understanding in the child witness and then decide to refrain from taking evidence from them. Before putting a child into witness box a Voir dire test must be conducted by the Court. As a matter of prudence courts often show cautiousness while putting absolute reliance on the evidence of a solitary child witness and look for corroboration of the same from the facts and circumstances in the case.

3.1.1 Assessment of Voir dire

Voir dire is a phrase in law which comes from Anglo-Norman. In origin it refers to an oath to tell the truth, i.e., to say what is true, what is objectively accurate or subjectively honest in content, or both? The word voir (or voire), in this combination, comes from Old French which states, “that which is true”.

Under this test the court puts certain preface questions before the child which have no connection with the case, in order to know the competency of the child witness. Some examples of the questions asked under this test can be that regarding their name, father’s name or their place of residence. This prevention is based on the presumption that children could be easily tutored and therefore can be made a puppet in the hands of the elders. In this regard the law does not fix any particular age as to the competency of child witness or the age when they can be presumed to have attained the requisite degree of intelligence or knowledge.

To determine the question of competency of the child witness the courts, often undertake the test whether from the intellectual capacity and understanding he is able to give a rational and intelligent account of what he has seen or heard or done on a particular occasion. Therefore it all depends upon the good sense and discretion of the judge. When the court is fully satisfied after hearing the answers to these preliminary questions, as to the capability of the child to understand these questions and to give rational answers thereto, then further court starts with substantial questions which are considered as evidences.

In Himmat Sukhadeo Wahurwagh & Ors. v. State of Maharashtra, the Supreme Court observed that the evidence of a child must reveal that he was able to discern between right and wrong and the court may find out from the cross- examination whether the defence lawyer could bring anything to indicate that the child could not differentiate between right and wrong. The court may ascertain his suitability as a witness by putting questions to him and even if no such questions had been put, it may be gathered from his evidence on an oath and the import of the questions that were being put to him.

In Nivrutti Pandurang Kokate & Ors. v. State of Maharashtra, the Apex Court dealing with the child witness has observed as under:

“The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness.”

Children are seen as more likely than adults to accede to leading or suggestive questioning, and to revise their testimony in response to coaching, threats, and challenges to their integrity. They were also seen as much less likely to be able to distinguish fantasy from reality. Thus judges and magistrates have ultimate control over the admission or exclusion of evidence. Special rules have attended the reception of children’s testimony because their evidence has traditionally been considered to be inherently unreliable. Although the restrictions on the admissibility of children’s evidence have been eased in many jurisdictions, their competence to testify is generally still subject to judicial discretion.

A child need not understand the special importance that the truth should be told in court or understand every single question or give a readily understood answer to every question. Provided that she could understand the questions put to her by the prosecution and the defence and could provide understandable answers, she was competent.

CHAPTER 4

4.1 Credibility of Child Witness

As a matter of prudence courts often show cautiousness while putting absolute reliance on the evidence of a solitary child witness and look for corroboration of the same from the facts and circumstances in the case, the Privy Council decision in R v. Norbury, where the evidence of the child witness of 6 years, who herself was the victim of rape, was admitted. Here the court observed that a child may not understand the nature of an oath but if he is otherwise competent to testify and understand the nature of the questions put before him and is able to give rational answers thereto, then the statement of such a child witness would be held to be admitted and no corroborative proof is necessary. The Supreme Court in Tahal Singh v. Punjab, observed:

“In our country, particularly in rural areas it is difficult to think of a lad of 13 year as a child. A vast majority of boys around that age go in fields to work. They are certainly capable of understanding the significance of the oath and necessity to speak the truth.”

In this regard a very important observation has been made in Jarina Khatun v. State of Assam, that the Trial Court is the best judge in the matter of deciding the competency of such a witness as there, the child himself appears before the court. Therefore it has an opportunity to see him, notice his demeanours, record his evidence and thereafter on scrutiny accepted his testimony.

The Supreme Court, in State of Madhya Pradesh. v. Ramesh & Anr., has examined the law relating to deposition by Child Witnesses. While examining the law on the aspect the Court has observed that the deposition of a child witness may require corroboration, but in case his deposition inspires the confidence of the Court and there is no embellishment or improvement therein, the Court may rely upon his evidence. The evidence of a child witness must be evaluated more carefully with greater circumspection because he is susceptible to tutoring. Only in case there is evidence on record to show that a child has been tutored, the Court can reject his statement partly or fully. However, an inference as to whether the child has been tutored or not, can be drawn from the contents of his deposition.

In the 90’s a trend emerged where the Courts started recording their opinions that child witnesses had understood their duty of telling the truth to lend credibility to any evidence collected thereof. The Supreme Court has also commended this practice. If the court is satisfied, it may convict a person without looking for collaboration of the child’s witness. It has been stated many a times that support of a child’s evidence should be a rule of prudence and is very desirable.

4.2 Need for Corroboration

Though Section 114 of the Indian Evidence Act, 1872, requires that every statement of compliance must be corroborated, but a vast majority of cases show that it is not a very hard and fast rule, especially in cases which involve children of tender age. There is difference between “what the rule is” and “what has been hardened into a rule of law”. In such cases the judge must give some indication that he has had this rule of caution in mind and should proceed to give reasons for considering it unnecessary to require corroboration on the facts of the particular case before him and show why he considers it safe to convict without corroboration in that particular case.

In Panchhi & Ors. v. State of Uttar Pradesh, the Court while placing reliance upon a large number of its earlier judgments observed that the testimony of a child witness must find adequate corroboration before it is relied on. However, it is more a rule of practical wisdom than of law. It cannot be held that “the evidence of a child witness would always stand irretrievably stigmatized. It is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring.”

The Court, in State of Uttar Pradesh. v. Krishna Master & Ors., held that there is no principle of law that it is inconceivable that a child of tender age would not be able to recapitulate the facts in his memory. A child is always receptive to abnormal events which take place in his life and would never forget those events for the rest of his life. The child may be able to recapitulate carefully and exactly when asked about the same in the future. In case the child explains the relevant events of the crime without improvements or embellishments, and the same inspire confidence of the Court, his deposition does not require any corroboration whatsoever. The child at a tender age is incapable of having any malice or ill will against any person. Therefore, there must be something on record to satisfy the Court that something had gone wrong between the date of incident and recording evidence of the child witness due to which the witness wanted to implicate the accused falsely in a case of a serious nature.

In Mangoo & Anr. v. State of Madhya Pradesh, the Apex Court while dealing with the evidence of a child witness observed that there was always scope to tutor the child, however, it cannot alone be a ground to come to the conclusion that the child witness must have been tutored. The Court must determine as to whether the child has been tutored or not. It can be ascertained by examining the evidence and from the contents thereof as to whether there are any traces of tutoring.

Part of the statement of a child witness, even if tutored, can be relied upon, if the tutored part can be separated from untutored part, in case such remaining untutored part inspires confidence. In such an eventuality the untutored part can be believed or at least taken into consideration for the purpose of corroboration as in the case of a hostile witness.

In a very recent case State of Madhya Pradesh. v. Ramesh & Anr., in which a trial court based its conviction on the evidence given by an eight-year-old daughter of a murdered man, the Supreme Court had stated that:

“…..There is no principle of law that it is inconceivable that a child of tender age will not be able to recapitulate the facts in his memory…………… A child is always receptive to abnormal events which take place in his life and would never forget those events for the rest of his life. The child may be able to recapitulate carefully and exactly when asked about the same in future………….. In case a child explains relevant events at the crime (scene) without improvement or embellishment, and the same inspire the confidence of the court, his deposition does not require corroboration whatsoever. The child at tender age is incapable of having any malice or ill-will against any person……”

 

CHAPTER 4

5.1 Conclusion

Children present a special challenge when they become participants in the legal system. The child witness presents a double truss for those conducting a forensic interview. In my opinion young children produce a higher percentage of accurate and relevant information in a free recall situation in which they are merely asked to tell in their words everything they remember, without prompts, cues, or suggestions.

But young children are gullible and vulnerable to making serious errors in their court testimony. When children are questioned skilfully and appropriately and supported and encouraged to tell their story in their own words, they can provide accurate and forensically useful information. But when questioners use suggestive, leading, specific, and coercive questioning to get the child to confirm pre existing biases about abuse, there is a risk of eliciting false statements from the child.

Several factors influence children’s memory capacity, including the child’s age, psychological development and intellectual ability, the complexity of the event, their familiarity with the event and the delay between the event and the time at which the event is recalled. Children could be easily tutored and therefore can be made a puppet in the hands of the elders.

Though a child may be competent witness, a closer scrutiny of its evidence is should be done before it is accepted. The competency of a child is not consistent and her statement probably may be drawn upon her imagination sometimes. So the deposition of a child witness may require corroboration, but in case if the deposition inspires the confidence of the court and there is no embellishment or improvement therein, the court may rely upon his evidence. The evidence of a child witness must be evaluated more carefully with greater circumspection because he is susceptible to tutoring. Only in case there is evidence on record to show that a child has been tutored, the Court should reject his statement partly or fully. However, an inference as to whether a child has been tutored or not, can be drawn from the contents of his deposition. Thus it can be concluded that a child witness is a privileged witness and their competency and credibility is to be decided by the court which may differ from case to case.

BIBILIOGRAPHY

Books Referred

1. Batuk Lal, The Law of Evidence, (19th ED. : 2010) (Central Law Agency Allahabad)

2. Ratanlal and Dhirajlal, The Indian Evidence Act, (19th ED. : 2010) (Central Law Agency, Allahabad)

3. S V Joga Rao, Woodroffe & Ameer Ali’s The Law of Evidenc (Vol.4, 17th ED. : 2002) (Lexis Nexis Butterworths Wadhwa, New Delhi)

Articles / Websites Referred

1  www.childwitness.com (Last Visited: Mar. 27, 2011).

2  http://childwitnesstoviolence.org (Last Visited : Mar. 20, 2011)

3  David B. Battin & Stephen J. Ceci, Children as Witnesses: What We Hear Them Say May Not Be What They Mean, http://www.docstoc.com/docs/51991065/Children-as-Witnesses-What-We-Hear-Them-Say-May, (Last Visited : Apr. 03, 2011)

TABLE OF CASES

1. Akhoy Kumar Mukherjee v. Emperor, AIR 1919 Cal 1021

2. Bagdi Ram v State of Rajasthan ,1984 Raj LW 10

3. Changan Dam v. State Of Gujrat, 1994 CrLJ 66 SC

4. Dalip Singh v. State Of Punjab, AIR 1979 SC 1176

5. Gagan Kanojia & Anr. v. State of Punjab, (2006) 13 SCC 516

6. Govind Balvant Laghate v. Emperor, AIR 1916 Bom 229

7. Jarina Khatun v. State of Assam, 1992 Cr LJ 733

8. Himmat Sukhadeo Wahurwagh & Ors. v. State of Maharashtra, AIR 2009 SC 2292

9. M. Sugal v. The King, 1945 48 BLR 138

10. Magan Lal Radhakrishnan v. Emperor, AIR 1946 Nag 173

11. Mangoo & Anr. v. State of Madhya Pradesh, AIR 1995 SC 959

12. Nivrutti Pandurang Kokate & Ors. v. State of Maharashtra, AIR 2008 SC 1460

13. Panchhi & Ors. v. State of Uttar Pradesh, AIR 1998 SC 2726

14. Prakash Singh v. State of Madhya Pradesh, AIR 1993 SC 65

15. R v. Norbury, (1978) Crim. LR 435

16. Ram Jolaha v. Emperor, AIR 1927 Pat. 406

17. Rameshwar S/o Kalyan Singh v. The State of Rajasthan, AIR 1952 SC 54

18. S Rasul v. Emperor, AIR 1930 Sind 129

19. Sataji Nathaji v. State, 1975 Mah Cr R 278

20. State v. Allen, 70 Wn.2d 690, 424 P.2d 1021 (1967)

21. State of Delhi v Vijay Pal, (1980) 1 SCC 582

22. State of Karnataka v. Shahbuddin,1955 Mad LJ 748 (Cr)

23. State of Madhya Pradesh. v. Ramesh & Anr, 2011 (3) SCALE 619

24. State of Maharashtra v. Dama Gopinath Shinde, AIR 2000 SC 1691

25. State of Uttar Pradesh. v. Krishna Master & Ors., AIR 2010 SC 3071

26. Suresh v. State Of Uttar Pradesh, AIR 1981 SC 1122

27. Tahal Singh v. Punjab, AIR 1979 SC 1347

28. Wheeler v. United States, 9 U.S. 523 (1895).

 

 

Environment Protection : A Challenge Before Legal System

By – D.B. THENGADI

INDEX 

1. ENVIRONMENT PROTECTION (Speech of D.B. Thengadi)

2. ANNEXURE 

(i) Major Treaties 

(ii) Selective Legislations, Remedies to Public & Some Important Cases 

(iii) Common Convictions in Stockholm Proclamation 

(iv) The Scope – Environmental Law 

(v) Education

3. THE WOUNDED EARTH – Story on Rio Earth Summit 

 

 

ENVIRONMENT PROTECTION 

 

The Government of India is conscious of this fact that is why they hastened to announce that from the new year no Government Vehicle, including DTC buses, that do not conform to the pollution control norms will be allowed to play on Delhi’s roads. Both the Ministry of Power and Coal have been served notices reminding them of the need to conform to the pollution control norms by the thermal plants by the new year. The Thermal plants have been asked only to use washed coal to bring down air pollution to acceptable levels. The Environment Ministry declared that it is in the process of setting up task forces to check pollution with the environment of the community and checking of Government vehicles in Delhi will be carried out from January 3. Similar action in the case of private vehicles will follow soon. The name of the pollution control board will be changed to Environment Protection Authority.

 

Why this sudden awakening on the part of the Central Government? It indicates the urgency of the topic, though for us in this country the subject has been almost equally urgent from the Vedic times.

 

The world was surprised to learn from Srimati Indira Gandhi at Stockholm Conference, 1972, that ecology-conciousness prevailed in India right from the Rig Vedic period. More than foreigners who attended the Conference as delegates, our own self alienated, anglicized intellectuals resented this approach of their Prime Minister. In the past, in keeping with the tradition of the land, legislation for protecting environment formed part and parcel of the Dharma which stood for ever-changing socio-economic order in the light of the unchanging, eternal universal laws. Every Smriti has dealt appropriately with the problem of ecology treating it as an integral part of the scheme for Dharma of the Society. It is interesting to note that advocate-authors Chaturvedis have tried to elucidate the Dharma of ecology as suited the requirements of the modern times.

 

The movement for law on environment gathered momentum after the Stockholm declaration. The Bhopal Tragedy, the (swaroopan silent) valley affair, the long-drawn struggles over Narmada and Tehri Dam, DDA’s Yamnua Plan and some other local agitations have further intensified the popular demand for perfect legislation on environment.

 

The number of environmentalists is growing. Some of them, like Sunderlal Bahuguna and Medha Patkar are known for their contribution and competence outside the country also Consequently, there is the recent growth in literature n this subject. For example, books like “Emering Right to Environment” ‘An Indian Experience by G.M. Jariwala; ‘Law of Consumer Protection, Principles and Practice” by Vandana Shiva; Journals like “ Down to Earth” and speeches made and article written by environmentalists from time to time.

 

For lawyers in this country this is not a new subject. The cognizance of this problem was taken by laweven during the British period and a few of the Acts contained provisions slightly helpful for protection of environment. During the post independence period this trend continued and the law paid greater attention to this aspect even before the Stockholm Conference of 1972. Earlier, the environmental legislations lay scattered in about 40 central and State Acts.

 

There is an excellent, comprehensive book, “International Law and The Environment” by Brinie and Boyle (1992). “Environmental Law” by Simon Ball and Sthart Bell; “Environment Protection” edicted by Paras Diwan; Lal’s “Commentaries on Water, Air Pollution of Environment (Protection) Laws”; “Law on Protection of Environment and Prevention of Pollution (Central of State)” by Chaturvedi’s (Dr. R.G. and Dr. M.M.; are same of such important books. ‘Legal Control of Environmental Pollution’ (S. Agarwal ed.); Ramakrishna. ‘The Emergence of Environmental Laws in the Developing Countries: A case study of India”; ‘In arrangement of National Parks and Sancturies in India: A Status Report – such documents are also helpful for proper understanding. Then, They have with them the table of cases on environmental law in India. (over and above these, when ever any legislation is passed, it is customary in our country to bring out expeditiously some bare commentaries on it. Such commentaries are helpful for immediate purpose).

 

Earlier the American law on noise (The Noise Control Act, 1972 of U.S.A.) had already received their attention, and now the comprehensive Environmental Response, Compensation and Liability Act of United States is also available. Not for blind imitation but as the helpful factor in evolving our own polices, European Community’s law and history, philosophy and current direction of environmental policy have become important for all third world countries. The “Mannual of European Environmental Laws” prepared by professors Alexandre Kess and Dinah Shelton furnishes us with chronological table of International and E C Documents, table of National Laws and cases, list of abbreviations and technical terms, etc.

 

For evolving a separate law on noise pollution, the American Law can be utilized, but with number of modifications. Britain was the pioneer in this field; its experience can be valuable for southern countries; but it should be simultaneously borne in mind that the British law on this topic suffers from anachronism because of the domination of conservalism in that country. Environmental laws in third World Countries, China, Japan, South America and Africa have not yet been available. Therefore, it is difficult to assess their relevance and utility under Indian conditions.

 

One general book “The Crisis of the Indian Legal System” by Upendra Baxi suggests some alternatives in development of law. The same can be helpful to some extent for removing the laeuna in our Environmental Law.

 

The interested and knowledgeable persons in the country are nowrealising that our law on environment is far from being perfect. The title for Djilas’ second book was 1 Unperfect Society’. By way of explanation Djilas said that he had deliberately avoided the use of the adjective ‘imperfect’, because that would have conveyed the impression that, according to him, society could at any time be perfect, that could never be. The implication of the term, ‘imperfect’ was that society could never be perfect, but efforts should be constantly made to minimize its imperfection as far as possible. The same holds good about every legal system also.

 

People are aware that the law is not the only instrument to achieve the desired goal. There are other useful non-legal measures also. For example, market mechanism for prevention of pollution by sending signals to consumers as to the true environmental cost of their activities, pressures from purchasers, consumers and share-holders, pollution taxes, tax incentives, recycling credits, levies on environmentally unfriendly activities; pressures through the supply chain and through investors and lenders etc. Tax levels, grants, or incentives have an indirect effect.

 

Most of all, general education of masses on the protection of environment is a must.

Nevertheless, the fact remains that law is the most important if not the only weapon useful for this purpose.

Ecology is the Natural Resources law on Environmental Balance or equilibrium.

 

In common parlance, environment means surroundings. Einstein said, “The environment is everything that is not me”. But in practical it has specific meaning, physical surroundings common to all of us, including air, space, water, land, plants and wild life.

 

It is necessary to remind the rules or the ruled that it is fundamental human right to live in an unpolluted environment and that it is fundamental duty of every individual to maintain purity of environment.

 

In India there is no independent Act to deal with the problem of noise pollution. No doubt the air (prevention and control of pollution) Act, 1981, has defined the expression “air pollution” to mean “any solid, liquid or gaseous substance (including noise) present in the atmosphere in such concentration as may be or tend to be injurious to human beings or other living creatures or plants or property or environment” the fact remains that there is no comprehensive separate law on the problem of noise pollution. This subject is not taken up with the seriousness it deserves because as justice Krishna Iyer had said, the environmental pollution is still regarded as “a subject to halting legilation, hypocritical implementation and helping interpretation”.

 

Probably time is not yet ripe for setting up special courts to deal with environmental laws, or to create a special mental crimes. But various other measures deserves expeditious implementation.

 

Presently, damages are payable for injury to the person or lost to one’s property. But no provision against injury to environment. Liability for environmental harm should be located and punished, notwithstanding the opposition to such provision by vested interests.

 

Now it is generally appreciated that there is need to restructure the law and practice on the protection of air, water and land against pollution, and the protection of the eco-system, together with those ancillary issues which help to explain these areas, such as, public participation, access to information, remadies and procedures.

 

There is a need for a Regulation on Eco-Management, and auditing which should require a public statement of environmental performance, external verification procedures, and commitment to continuing improvements in environmental performance. (There should be environmental auditing firms and businesses).

 

Deserving special notice is the absolute absence of a law to tackle the twin problems of pollution, namely, the emission of the gases from the Power Stations, and the concentration of vehicular exhausts.

 

Attention needs to be given to protection of the cultural heritage. It is necessary to spell out the concept of ‘sustainable development’ under Indian conditions.

 

The term “Sustainable development”, taken from the report of the World Commission on Environment and Development ‘Our Common Future’, published in 1987 has led to the creation of an International sustainable development commission.

 

The people have come to realize that the current criminal law as applied to pollution problem in quite inadequate. To cite a single example, an imprisonment for a couple of months or a fine even if running into thousands, would hardly compensate the aggrieved or the injured.

 

The law under which stringent penalties have been provided for contravention of provisions which provides for imprisonment upto five years and find upto Rs. 1 lakh and in some cases imprisonment upto 7 years and find upto Rs. 5,000 per day is often ignored by executive authorities.

 

Wid powers have been conferred on the relevant authorities under these Acts which includes the power of entry and inspection for various purposes as per procedure prescribed in the Acts and power to take sample of effluents, etc., for analysis, prescribed procedure to be followed in connection therewith. Stringent punishment and penalties viz. imprisonment and heavy fine have been provided for contravention of the various provisions of these three Acts. But it nis widely known that these powers are often misused or not used at all.

 

Environmental Law remedies should be of two types (1) Remedies that are properly charactersied as administrative uin nature, and (2) Truly Criminal remedies that are kept for blatant cases of environmental vandalism.

 

There should be a specific edntry in the concurrent list of the seventh schedule of the Constitution, under the title ‘Environment’.

 

A Central law on noise pollution should be enacted.

 

Appropriate tax deduction incentives be gien.

 

It is advisable to compare definition of ‘occupier’ in environmental law and that under the Factories (Amendment) Act, 1987.

 

 

Professor Chhatrapati Singh, in his Article in “Legal Policy for the control of Environmental Pollution” has outlined the structural framework of various environmental laws under two heads. Chhatrapati Singh has also explained the functional basis of environmental laws. He has enumerated the deeper problems, in the legal policy, which require deeper consideration. His conclusion deserves serious consideration by this conference. General flaws in policy, principles and administration of the current laws-whether criminal or civil, are to be found in the drafting and implementation of environmental laws also, particularly specific-more specific- ‘definition’ of key terms such as ‘air pollutant’, ‘water pollutant’, ‘such contamination’, ‘such concentration’, ‘nuisance’, ‘environmental pollution’, ‘hazardous substance’.

 

Restitutive justice is a new branch of interpretative jurisprudence adding a new dimension to the cause of social justice. The Supreme Court has stemmed out of Article 32 a new jurisdiction to award compensation for alleviating the human suffering by action or omission of Govt. or of Corporate Bodies resulting in violation of the basic or natural rights of individuals.

 

It is the inalienable and fundamental right of man-good environment. Article 48-A of the Constitution enjoys that the State shall endeavour to protect and improve the environment. But the right to breathe should fall within the scope of right to life guaranteed under Article 21. Purety III of environment necessary to the right to breathe also finds place in the fundamental duties, in clause (g) of Article 51-A Part IV-A of the Constitution.

 

Pollution Control is a part of social justice. Directive Principles are only expansion of Article 14.

 

Public health is a part of social justice. Relevent Articles in Part IV of the Constitution: Article 41; Art 43; Art. 47; Art 48-A; Clause (g) of Article 51-A.

 

A comprehensive study of the area of action and the powers of executive and judicial authorities and the powers of the authorities created under the Water Act, the Air Act, and the Environment Act would reveal that there are vast areas relating to pollution which may not come within the ambit of the Acts and can, therefore, be dealtwith under the general poenal or preventive provisions, and allusion, may be relevant to the width of the comprehensive concept of nuisance.

 

In the wider sence of nuisance, pollution is nothing but species of nuisance.

 

In its causalgenesis, pollution is nuisance-oriented. Pollution is atmospheric nuisance, and, in that sence, it is covered by the larger notion of nuisance. (The terms ‘nuisance’ is not capable of exact definition Pollock C.B., in ‘Banford v. Turneky’ has observed (31L 23 292).

 

“I do not think that the ‘nuisance’ for which an action will lie is capable of any legal definition, which will be applicable to all actions and useful in deciding them.

 

Speaking generally, nuisance is “the unlawful interference with a person’s use or enjoyment of land or some right over, or in connection with it.

 

Nuisance may however, be distinguished from negligence or trespass. In India Pollution cases can usually be construed as admixture of nuisance and trespass.

 

Chapter XIV of the Penal Code, 1960, relates to “Offences affecting the public health, seafety, convenience, decency and morals’. Further, even obscenity whether visible or audible, wether recited or written, will amount to criminal nuisance.

 

According to experts, Section 290 of the Penal Code has been enacted to provide the punishment for ‘public nuisance ‘k jin cases not otherwise provided for. The width of the concept of ‘public nuisance’ under the Penal Code extends to number of offences, all of which must be taken as species of criminal nuisance. Out of the list of such nuisances, those having affinity with pollution proper are relatable to Section 277, 278, 284, 290 and 291. Section 268 of the Penal Code defines ‘Public Nuisance’. But there is no separate penal section prescribing punishment for the commission of ‘public nuisance’ as defined under section 268. That is why Section 290 has been enacted toprovide for punishment for ‘public nuisance’ in cases not otherwise provided for.

 

‘Nuisance’ considered as an offence is much wider in scope than pollution and extends even to cases of abstructions and a number of other annoyances. ‘Nuisance’ may be distinguished from ‘negligence’ and trespass speaking generally, ‘nuisance’ is the unlawful interference with a person’s use or enjoyment of land, or of some right overf or in connection with it.”

 

Section 133 of the Code of Criminal procedure is not repealed by the Air Act.

 

Nuisance in India is a subject common to civil and abnoxious to the community or to the individial member of it, for which some legal remedy may be found’. Any thing done which unwarrantably effect rights of others, endangers life or health, gives offence to the sense, violates the laws of decency, obstr4ucts the comfortable and reasonable use of property, may amount to nuisance. Injury must be real and not fanciful.

 

Nuisance: I) Public, ii) Private.

While takingh protection of environment into consideration, prevention of harm should be given priority. Greater emphasis should be laid on progressive adoption of laws that set standards for products or the processes by which they are made, rather than on discharges or omissions. The introduction of integrated pollution control, a process-based control, is necessary.

 

For prevention of future harm there should be progressive adoption of laws that set standard for products or the processes by which they are made, rather than for discharges or omissions. Introduction of integrated pollution control, a process – based control is necessary.

 

Strict cognizance should be taken of sulphurdioside ommisions, the dumping of sewage sludge in the sea and reductions in omissions from vehicles, acid rains.

 

The cheap option of incineation on dumping sewage sludge in the sea should be phased out.

The policy now is that waste reduction and education is to be preferred to recycling, and srecycling to disposal.

The minimization of waste should be given priority in future production methods.

 

The ‘wild beasst theory’ must be applied to (a) fire, (b) gas, (c) electricitym (d) explosives, (e) engines, (f) motorcar containing petrol (g) noxious fumes, (h) other dangerous things, such as, rusty wire or flagpole, poinsonous vegetation and chair-o-plate.

 

Apart form the devastating leakages of lethal gases, from carbide and fertilizer plants, a large quantity of the deadly substance is spewed forth by the main power stations in any town.

 

The law on town and country planning should take into consideration various means of disposing of waste, sewage disposal, incineration, landfill, discharge to rivers, m discharge to the sea and recyling.

 

Also the problems such as, abandoned water taps, dereliet land, discharges of toxle wastes and untreated sewage into estuaries and the sea, etc.

 

Protection of environment and protection of people are interlinked like regulation or radio activity.

 

Protection of environment includes not only pollution control but also other issues, such as, the retention of biological diversity and the preservation of landscape.

 

Problem of environment protection requires remedies Legal as well as scientific, technological, social and economic solutions (Environmental law is a separate discipline). Interrelatedness of problems should be recognized. For example, irrigation facilities producte salinity leading to land pollution. Industrial development causes pollution of land, m air and water. Over exploitation-increases burden on natural resources like land, forests and water. How cope with the escalated need for shelter involving housing schemes, for fuel, fodder and furniture. 100 million hectares of land, almost one third of total area, stands infected by degradation, erosion, salinity, alkalinity and wind erosion. Automobiles causing air and noise pollution. Deforestation resulting into uneven availability of water, exhibiting an alternating cycle of flood and draughts. Untreated human wastes in urban areas, create health problems

 

The decline in environmental quality is evidenced by increasing pollution, loss of vegetal cover and biological diversity, excess concentration of harmful chemicals in the ambient atmosphere and in food chains, growing risks of environmental accidents and threet to the support-systems. All motor vehicles including buses and trucks, three wheelers, etc. are known for smoke commission-level and carbon monoxide level, by contravening rules for test for smoke omission level and carbon monoxide levels for motor vehicles.

 

Protection of environmental pollution includes water, air, land and soil, forests, lakes, rivers, sea, wild life and other living creatures, and the inter-relationship which exists amongst and in between these elements-vis-human beings and other living creatures, plants, forests, property and micro-organism, etc.

 

Identity of the polluters-Cars, factories, powerstations, etc. Nature of the pollutant (e.g. radiation, leads, pesticides, CFCs, etc.) the targets being medium in which the threat manifests itself (e.g. air, water, land, etc.). The principle should be polluter pays’.

 

Obligations: 

 

It is difficult and inadvisable to disentangle our national policies or environment from global ones.

 

Environmental pollution is a global problem more on the premises that the atmospheric ocean is shared by the peoples of the nations. As Arthur C. Ster suggests, the aim has to be the welfare and the preservation of health not only of the nationals of a State but of man throughout the world, with the other objectives of protection of and preservation against damage to plant and animal life, prevention or damage to physical property and interference with the normal use and enjoyment thereof, provisions of visibility required for safe air and ground transportation, ensuring continued economic growth and development, and maintenance of an aesthetically acceptable enjoyable environment.

 

As L.N. Mathur said, the use of air has to be planned along substantially the same lines as the use of multinational rivers and water channels for the conservation of land water resources.

 

International issues of Environment are : (a) Global warning; (b) depletion of the Ozone layer; (c) the protection of the rain forest; (d) attempts to save the animals; (e) the control of hazardous substances and processes; (f) the minimization and management of waste; (g) the conservation of natural resources; and (h) protection of eco-systems.

 

There should be organized ‘watch-dog committees’ of citizens to keep constant watch on problems arising from time to time and region to region, for example a significant portion of the 15000 plants species and 75000 animals species activity on land and forests. India lost between 1951 and 1972-3.4 million hectares of Forest lands to dams, mining, new crop lands, roads and industries. It means an annual rate of deforestation of about 0.15 million hectares.

 

Deforestation, floods, famines and other inter-related facts should be taken into consideration in an integrated manner.

 

Even our sacred rivers like Ganga and Yamuna often appear in the news, under pollution head. It has also now been scientifically established that some kinds of polluted water can also adversely affect the fertility of the soil. Air pollution apart from being a source of various diseases is also threatening the very existence of ancient and historical monuments.

 

Various such problems should be identified alertly from time to time by such ‘watch-dog’ committee.

 

It should be a matter of pride and satisfaction for us that the problem of the protection of environment received attention of the members of the constituent Assembly, at that early stage.

 

The Indian Constitution is amongst the few in the world that contains specific provisions on environmental protection. The directive Principle of State Policy and the Fundamental Duties chapters explicitly the national comtunately, some extraneous phychological factores also played some role in the matter.

 

The authors of the ‘Environmental Law and Policy in India’ state:

 

‘The constituent Assemble that framed India’s Constitution did not specifically consider the question of whether parliament or the State Legislature should regulate environmental matters. Instead, the distribution of environmental subjects within the three lists was influences by the Govt. of wished to create a strong center and others who preferred to a decentralized versus a centralized federal structure prevaild over the issue of whether the central or state legislatives were better situated to regulate environmental matters.”

 

Number of complicated problems intensified such differences of opinion. For instance, floods which cause considerable hevoc in the plains may be the result of indiscriminate felling in the catchment areas under the control and jurisdiction of an entirely different province.”

 

When the Forty Second Amendment Act of 1976 a with its Article 48-A and Article 51-A was passed, the Lok Sabha rejected several amendments. One of them required the State to “Conserve and develop the water, soil and other natural resources”., while another proposed to ensure that the State’s efforts to protect and improve the environment would not harm tribal forest dwellers.” The rejected amendments of the Rajya Sabha proposed that the Article should also mention “mineral wealth” and require the Government to “undertake adequate and effective measures to check environmental Pollution.”

 

The 42nd Amendment also expanded the list of concurrent powers in the constitution. The amendment introduced a new entry “Pollution control and family planning”. While “forest and “Protection of wild animals and birds” were moved from the state list to the concurrent list.

 

Article 253 of the Constitution empowers parliament to make laws implementing India’s international obligations as well as any decision made at an international conference, association or other body. The Article apparently gives Parliament the pwer to enact laws on virtually any entry contained in The State List. Article 253, with its broad language, serves as an adequate handle for a court to uphold Parliaments’ powers to enact environmental laws.

 

In 1980, the Tiwari Committee recommended that a new entry on “Environmental Protection” b introduced in the concurrent list to enable the Central Govt. to legislate on environmental subjects. The committee’s recommendation was based on a note from the Indian Academy of Environmental Law which observed that there was no direct entry in the 7th schedule enabling parliament to enact comprehensive environmental laws. The note, however, did not consider parliaments’ power under Article 253.

 

Notwithstanding such difficulties, commendable progress has been made by the country in this respect.

 

There are many indications; for example, Article 39-A guarantees every citizen the right of access to the court. The right to a clean environment has been included by the Supreme Court in the definition of the right to life guaranteed to all citizens by Article 21. The right to breathe clean air and drink unpolluted water has now become as sacred as the right to life.

 

The Supreme Court has throughout the last few years expanded the horizon of Article 12 primarily to inject respect for human rights and social conscience in the corporate structure. Any new and innovative expansion of human rights is bound to disturb the status-quoist vested interests, but their arguments should not deter the court from widening the scope of human rights and expanding their ambit. Article 12 of the Constitution should not be presumed to obstruct this process of expansion. The General public also is srecently becoming aware of the valuable contribution of judiciary to the cause of environment.

 

In Agra pollution case the Supreme Court pulled up Indian Oil Corporation for not taking steps to control the environmental damages caused by the Mathura Oil Refinery especially to Taj Mahal. Many other important moves such as the Court’s directive on the relocation of Delhi’s noxious industries, the Court’s stem directive in the Delhi Ride case, have focused the attention of the people on the judiciary’s role in this respect.

 

In fact the environmental matters have been taken up in the Court since the days of Chief Justice P.N. Bhagwati in the early “80s” and other Brother Judges have made further important contributions to this cause.

 

Various cases mentioned in the Annexure show that our judiciary is alert but the magnitude of this problem. For example, P.N. Bhagwati C.J. impressed upon the Government of India to evolve a national policy for location of chemical and other hazardous industries in areas where population is scare and there is little hazard or risk to the community, and when hazardous industries are located in such area, every care must be taken to see that large human habitation does not grow around them. There should preferably be a green belt of 1 (one) to 5 KM width around such hazardous industries.

 

Population as base of huge industries conflicts eagerly with employment value of such industries, but as the High Court of Kerala has observed that where a workshop has been responsible for causing nuisance by air pollution and noise pollution, the mere fact that it proves livelihood to some persons, unmindful of consequences, is not a valid ground to justify causation of pollution (Madhavi V. Thilakam, 198).

 

P.N. Bhagwati, Chief Justice has aptly observed “where science and technology are increasingly employed in producing goods and services calculated to improve the quality of life, there is certain element of hazard or risk inherent in the very use of science and technology and it is not possible to eliminate such hazard or risk altogether. We cannot possibly adopt a policy of not having any technical or other hazardous industries merely because they pose hazard or risk to the community. If such a policy were adopted it would mean the end of all progress and development. Such industries, even if hazardous, have to be set up since they are essential for economic development and advancement of well-being of the people. We can only hope to reduce the element of hazard or risk to the community by taking all necessary steps for locating such industries in a manner which would pose least risk or damage to the community and maximizing safety requirements in such industries”.

 

(M.C. Mehta V. Union of India, AIR 1987 SC 965 (981) etc. many such cases can be cited to prove the point, and their list is given in the Annexure attached herewith.

 

But of particular importance is the spirit in which this subject should be considered by our law makers, lawyers and the judiciary. It is a matter of great satisfaction that appropriate lead in this matter is given by our judiciary in the field of law and jurisprudence, which has been a marked departure from the age-old tradition of our intellectual slavery. Dealing with the problem of hazardous industries, P.N. Bhagwati (C.J.) has declared in un-equivocal term that judgments of the British Courts need not be followed by us blindly, the conditions in our country are different from those in Britain. We should, therefore, have our own law and its interpretation, keeping in view our national scene.

 

The Supreme Court of India justified itself in departing from the Rule laid down in Rylands vs. Fletcher reported in 1868 LR 3 HL 330 for two reasons. Number one is the incapacity of the rule to cope with the liabilities of an industrialized society. And secondly because of the need for a free and native thinking in order to develop an indigeneous law. This remarkable ruling is reported in M.C. Mehta vs. Union of India, AIR 1987, SC, Page 1086.

 

The following passages are in page numbers 1098-99.

 

“This rule evolved in the 19th Century at a time when all these developments of science and technology had not taken place cannot afford any guidance in evolving any standard of liability consistent with the constitutional norms and the needs of the present day economy and social structure. We need not feel inhibited by this rule which was evolved in this context of a totally different kind of economy. Law has to grow in order to satisfy the needs of the fast changing society and keep abreast with the economic developments taking place in the country. As new situations arise, the law has to be evolved in order to meet the challenge of such new situations. Law cannot afford to remain static. We have to evolve new principles and lay down new norms which would adequately deal with the newproblems which arise in a highly industrialized economy. “As to the second reason, the Court held (per Bhagwati, C.J.):

 

“We cannot allow our judicial thinking to be constricted by reference to the law as it prevails in England or for the matter of that in any other foreign country. We no longer need the crutches of a foreign legal order. We are certainly prepared to receive light from whatever source it comes but we have to build up our own jurisprudence and we cannot coutenance an argument that merely because the new law does not recovnise the rule of strict and absolute liability in cases of hazardous or dangerous liability or the rule as laid down in Rylands Vs. Fletcher as is developed in England recognizes certain limitations and responsibilities. We, in India cannot hold our hands back and I venture to evolve a new principle of liabilty which English Court have not done. We have to develop our own law and if we find that it is necessary to construct a new principle of liability to deal with an unusual situation which has arisen and which is likely to arise in future on account of hazardous orinherenly dangerous industries which are concomitant to an industrialized economy, there is no reason way we should hisitate to evolve such principle of liability merely because it has not been so done in England”.

 

These remarks clearly indicate that though we may benefit from the experience of developed countries, their exact or blind limition will not help us in finding out solutions for our own peculiar problems. Fresh and original thinking against the back ground of Indian conditions is necessary.

 

The following observation of the authors of ‘Environmental Law and Policy in India (Cases, Materials and Statistics) is more specific on this point.

 

“Unlike the situation in the western countries, Indian environmental law and policy is not a preserve of the affluent middle class interested in resisting growth. In India those most deeply affected by environment deterioration are the poor. Displaced and dispossessed by deforesation and other natural resource depletion, they are the first victims of poor sanitation, bad air, contaminated water and scarece wood for fuel and fodder”.

 

In this context, I am reminded of a couplet from a Spanish Poet which, as rendered in English run thus :-

“Traveller, there are no paths,

Paths are made by walking”.

 

Who is competent to accomplish this task? Frankly, lawyers, not legislators. Even in Britain there was a complaint that Parliamentarians could not do justice to this issue because of the tight time-schedule of the Parliament and the incompetence of Parliamentarians to study and grasp the subject thoroughtly. Hence the propriety of the Adhivakta Parishad taking up the issue. All of you have preliminary discussion on this problem in course of this conference, and subsequently, I hope, it will be followed by a public debate on the initiative of Adhivakta Parishad activists on different levels throughout the country. Similarly this Conference will have to finalise the programme for the next year. On the eve of the next general elections, I appeal to all political parties to declare in their manifestos that they shall provide fresh water and fresh air to all citizens and living creatures. We know that this is not easy and simple as some one would have us believe. Some authority on practical politics has said that “Politics is a gentle art of getting votes from the poor and campaign funds from the rich, by promising to protect each from the other”. For this purpose, the parties will have to discard the current concept of ‘development’, and adopt a new one which requires ‘development’ to revolve round man, rather than man revolving round ‘development’.

 

 

MAJOR TREATIES AND AGREEMENTS TO WHICH INDIA IS A PARTY:

 

INDIA’S TREATY OBLIGATIONS:

1. Convention Relative to the Preservation of Fauna and Flora in their Natural State (London, 1936) (S).

2. International Convention for the Regulation of Whaling (Washington, 1946), (S)

3. International Plant Protection Convention (Rome, 1951), (S).

4. The Antartic Treaty (Washington, 1959), (S).

5. Convention Concerning the Protection of Workers Against Ionizing Radiations (Geneva, 1960), (S).

6. Treaty Banning Nuclear Weapons Tests in the Atmosphere, in Outer Space and Under Water (Moscow, 1963), (S).

7. International Convention of Civil Liability for Oil Pollution Damage (Brussels, 1975), (S).

8. Convention of Wetlands of International Importance, Especially as Waterforl Habitat (Ramsar, 1971), (CP).

9. Convention on the Prohibition of the Development Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons, and on their Destruction (London, Moscow, Washington D.C. 1972), (CP).

10. Convention concerning the protection of the World cultural and Natural Heritage (Paris, 1972) (CP)

11. Convention of International Trade in Endangered Species of Wild Fauna and Flora (Washington DC, 1973), (CP).

12. Protected of 1978 Relating to the International Convention for the Prevention of Pollution from Ships, 1973 (MARPOL), London, 1978), (CP).

13. Convention on the conservation of Migratory species of Wild Animals (Bonn, 1979), (CP).

14. 14. Convention on the conservation of the Antarctic Marine Living Resources (Canberra, 1980, (S).

15. U.N. Convention on the Law of the Sea (Montego Bay, 1982), (S).

16. International Tropical Timber Agreement (Geneva, 1983).

17. Convention of Early Notification of a Nuclear Accident (Vienna, 1986).

18. Convention on Assistance in the case of Nuclear Accident or Radiological Emergency (Vienna, 1986).

 

 

SIGNATORY (S); CONTRACTING PARTY (CP)

 

SELECTIVE LIST OF ENVIRONMENT RELATED LEGISLATION:

 

1. CENTRAL ENACTMENT

 

ENVIRONMENT (PROTECTION) ACT 1986.

 

1. WATER POLLUTION

The river Boards Act, 1956.

The Merchant Shipping (Amendment) Act, 1970.

The Water (Prevention and Control of Pollution) Act, 1974.

The Water (Prevention and Control of Pollution) Cess Act, 1977.

 

2. AIR POLLUTION

The Indian Boiler’s Act, 1923.

The Mines and Minerals (Regulations and Development) Act, 1947.

The Factories Act, 1948.

The Industries (Development and Regulation) Act, 1951.

The Air (Prevention and Control of Pollution) Act, 1981.

 

 

3. RADIATION

The Atomic Energy Act, 1962.

The Radiation Protection Rules, 1971.

 

4. PESTICIDES

The Poision Act, 1919.

The Factories Act, 1948.

The Insecticides Act, 1968.

 

5. OTHERS

The Indian Fisheries Act, 1897.

The Indian Forest Act, 1927.

The Prevention of Food Adulternation Act, 1954.

The Ancient Monuments and Archaeological Sitesand Remains Act, 1958.

The Wild Life (Protection) Act, 1972.

The Urban Land (Ceiling & Regulation) Act, 1976. Vide Dr. Tewar Report on Pollution.

First Conservation Act, 1980.

 

 

II. STATE ENACTMENTS

 

1. WATER POLLUTION

The Orissa River Pollution Prevention Act, 1953 and

The Maharashtra Prevention of Water Pollution Act, 1969.

 

2. SMOKE CONTROL

The Bengal Smoke Nuisance Act, 1905.

The Bombay Smoke Nuisance Act, 1912.

The Gujarat Smoke Nuisance Act, 1963.

 

3. PEST CONTROL

The Mysore Destructive insects and Pests Act, 1917.

The Andhra Pradesh Agricultural Pest and Disease Act, 1919.

The Assam Agricultural Pests and Disease Act, 1954.

The U.P. Agricultral Disease and Pests Act, 1954.

The Kerala Agricultural Pests and Disease Act, 1958.

 

4. LAND UTILISATION AND LAND IMPROVEMENT

The Bihar Waste Lands (Reclamation, Cultigation and Improvement) Act, 1946.

The Andhra Pradesh Improvement Scheme Act, 1949.

The Acquisition of Land for Flood Control and Prevention of Erosion Act, 1955.

The Delhi Restriction of Uses of Land Act, 1964.

 

 

The first law on this subject was “The Shore Nuisance (Bombay and Kolaba) Act of 1853. Other Laws inherited from the British period are :

 

The Fisheries Act, The Merchant Shipping Act, Mines Act, Thr Ports Act, other penal and compensatory provisions. The Indian Boilers Act, 1923, The Floro Act, The Indian Forests Act, 1927, The Indian Easement Act, The Bengal smoke Nuisance Act of 1905; The Bombay Smoke Nuisance Act of 1912; The 1873 Madras Act for the protection of wild elephants; The (Central) Elephants Preservation Act of 1879; Wild Birds and Animals Protection Act, 1912; The hailey National Park Act of 1936.

The Workmen’s Compensation Act, 1923; the Fatal Accidents Act, 1855;

Relevant Sections of Indian Penal Code and Code of Criminal Procedure.

 

III. RELEVENT RULES

The Water (Prevention and Control of Pollution) Rules, 1975.

The Air (Prevention and Control of Pollution) cess Rules, 1978.

Air (Prevention and Control of Pollution) Rules, 1982.

The Water (Prevention and Control of Pollution) cess Rules, 1977.

The Hazardous Micro-Organism Rules.

The Hazardous Wastes Rules.

The Environment (Protection) Rules, 1986.

Hazardous Wastes (Management and Handling) Rules, 1989.

Manufacture, Storage and Import of Hazardous Chemicals Rules, 1989.

Andhra Pradesh Water (Prevention and Control of Pollution) Rules, 1976.

Andhra Pradesh State Board for the Prevention and Control of Water Pollution (Procedure for Transaction of Business) Rules, 1976.

Andhra Pradesh Air (Prevention and Control of Pollution) Rules, 1982.

Gujrat Air (Prevention and Control of Pollution) Rules, 1983.

Kerala Water (Prevention and Control of Pollution) Rules, 1976.

Kerala Water (Prevention and Control of Pollution) Appellate Authority Rules, 1977.

Kerala Air (Prevention and Control of Pollution) Rules, 1984.

Maharashtra Water (Prevention and Controlof Pollution) Rules, 1983.

Maharashtra Air (Prevention and Control of Pollution) Rules, 1983.

Uttar Pradesh Water Consent for Discharge of Sewage and Trade Effluents) Rules, 1981.

Uttar Pradesh Air (Prevention and Control) of Pollution Rules, 1983.

West Bengal Air (Prevention and Control) of Pollution Rules, 1983.

Air (Prevention and Control of Pollution) (Union Territories) Rules, 1983.

The Uttar Pradesh Air (Prevention and Control of Pollution) (First Amendment) Rules, 1988.

 

LIABILITIES 

 

LIABILITIES : 1. Fines, 2. Imprisonment, 3. Variation, suspension of revocation of a licence, 4. Costs to clean up after a pollution incident to be recovered from the pollution or (in some cases) the occupier, 5. Civil liability – including for ‘toxic torts’, 6. Adverse Publicity.

 

PENALTIES AND PROCEDURE : 

 

Section 20 of the Water Act : Water Act Sac. 3(1) ©; Sec. 41(d) (1); Water Act – Sec. 41 (2); Sec. 43; Sec. 25; Sec. 26; Sec. 44; Sec. 45; Sec. 46; Sec. 48; Sec. 49; Sec. 49(2); Sec. 298 and Sec. 29 of the Criminal Procedure Code.

 

Air Act :- Sec. 37, Sec. 22, Sec. 38; Sec. 39; Sec. 41; Sec. 43; Sec. 49 of the Waste Act and Sec. 43 of the Air Act deal with cognigance of offences, the same provided under section 19 of the Environment Act.

 

STRAY LEGAL NOTES

 

Provision under the Factories Act, 1948 and Pollution Control Laws.

 

Definition of the term ‘Occupier’.

 

Factories Act – obligation on occupier relating to disposal of Waste and effluents.

 

Provisions relating to hazardous processes.

 

Penalities and procedure.

 

(Consult Chapter X of the Factories Act).

 

A new Part X-B and Part XI-A has been inserted by the merchant Shipping (Amendment) Act, 1983., (No. 12 of 1983) dealing with pollution.

 

Ealier Analogous Indian Statutory Provisions on Water, land air and noise pollution :-

 

a) Shore nuisance (Bombay and Colaba) Act, 1953.

 

b) Oriental gas company Act, 1887.

 

c) Section 288 and Section 278 of the Penal Code (Penalities for Pollution) (277+278+279 sec.).

 

Section 431; Section 432).

 

Section 284 (Penality for negligent conduct with respect to section (-do- -do- Poisonous substances.

 

Section 430 (Penal Code-IPC)

 

Section 268 (Penal Code-IPC)

 

Section 269 (Penal Code-IPC)

 

Section 290 (Penal Code-IPC)

 

Section 286 (Penal Code-IPC)

 

Section 291 (Penal Code-IPC)

 

Section 336 (Penal Code-IPC)

 

Section 337 (Penal Code-IPC)

 

Section 338 (Penal Code-IPC)

 

Section 279 (Penal Code-IPC)

 

Section 3904-A (Penal Code-IPC)

 

Section 425 (Penal Code-IPC)

 

Section 426 (Penal Code-IPC)

 

Section 430 (Penal Code-IPC)

 

d) The Police Act 1861 refers to Noise Pollution and punishment thereof. Section 30; Section 30-A; Section 31; Section 31; Section 32; Section 33; Section 34;

 

e) The Sarais Act, 1867.

 

f) Section 70 of the Northern India canal and Drain age Act 1873.

 

g) Section 8 of the obstruction in Fairways Act, 1991.

 

h) The illustration (f) the Section 7 of the Easement Act 1882.

 

The illustration (h) of the same section (Repair rights).

 

On riparian rights – riparian rights.

 

Section 2 of the Easement Act.

 

i) Section 5(1) of the Indian Fisheries Act, 1897.

 

j) Section 133 to the 144 (new of the Chapter X of the Code of the Criminal Procedure 1973.

 

k) Section 6 of the Indian Ports Act, 1909.

 

l) Section 54 (b) of the Indian Steam Vessels Act, 1917.

 

m) Section 32 of the Forests Act, 1927.

 

n) The Motor Vehicles Act, 1939, repealed by the Motor Vehicles Act 1988, particularly section 110 of the new Act.

 

o) Section 12 of the Factories Act, 1948 (disposal of Waste, etc.)

 

p) Section 16 of the Damodar Valley Corporation Act, 1948.

 

q) The various Municipalities Acts, passed by the State Legislatures and rules, regulations and bye-laws made thereunder.

 

r) The Rivers Boards Act, 1956.

 

s) Section 356-C of the Part XI-A of said Act also the new part –B of the said act.

 

t) Exclusive economic zone and other maritime zones Act, 1976.

 

Indian Penal Code:

 

Sec. 266; Sec. 269; Sec. 277; Sec. 278; Sec. 279; Sec. 248; Sec. 285; Sec. 286; Sec. 290; Sec. 291; Sec. 336; Sec. 337; Sec. 338; Sec. 304-A; Sec. 425; Sec. 426; Sec. 430; Sec. 431; Sec. 432.

 

Code of Criminal Procedure, 1973.

 

Sec. 133 to 144 (new of the Chapter X of the Code of Criminal Procedure, 1973.

 

Establishment, constitution and functions of Boards – Established under the two relevant Acts for the prevention and control of water and air pollution. Two kinds of Boards envisaged by both the Acts, The Central Board and the State Boards. Power of the Boards to obtain information and to enter and to inspect. The power of a State Board or any officer empowered in that behalf to take samples. Apprehended pollution of water in stream or wells and legal action, mainly sec. 33, Chapter XXIX of the Criminal Procedure Code, particularly Sec. 372; Sec. 373; Sec. 374; Sec. 375; Sec. 376; Sec. 377; Sec. 378; Sec. 379; Sec. 380; Sec. 397; Sec. 399; Sec. 401; Sec. 386.

 

Order XXXIX Rule 1, CPC Rule of the same order, Rule 3-A of the same Order XLIII of CPC. The constitution (Forty-second Amendment) Act, 1976. Part IV of the Constitution Directive Principles Article 47, Article 48-A.

 

Amendment to the Seventh Schedule of the Constitution –

 

– Entry of “17-A Forests” and entry “17-B Protection of Wild animals and birds” in the concurrent List III.

 

 

 

REMEDIES OPEN TO PUBLIC

 

 

 

Remedies open to Public regarding Pollution and Civil and Criminal Jurisdictions Inclusive of Injunctions.

 

1. Right of riparian owner of accustomed flow of water.

 

2. Easementary right of irrigation.

 

3. Acquisition of easement over surface water.

 

4. No right of easement in respect of collected and impounded surface water.

 

5. Right to change a channel.

 

6. Easement to draw water from well.

 

7. Right to discharge water by means of watercourse.

 

8. Use of nala water for irrigation.

 

9. Injunction to restrain disturbance of easement.

 

10. Temporary mandatory injunction in relation to flow of water in the street.

 

11. Injunction to restrain interference with the use of water of tank.

 

12. Injunction to restrain interference with the use of water of tank.

 

13. Injunction to restrain interference with easement of water.

 

14. Injunction to restrain discharge of roof water.

 

15. Injunction for restoration of normal supply of water.

 

16. Injunction to restrain flow of dirty water through private land.

 

17. Distinction between easementary right and natural right.

 

18. Cause of action in case of apprehended infringement of natural right.

 

19. Grant of injunction in case of pollution of water.

 

20. Injunction directing commissioners of Muncipality to construct a suitable pucca drain.

 

21. Corporation’s liability for torte bought about at its instance.

 

22. Public nuisance create by pollution – Remedies.

 

23. Promissory estoppel in fixing responsibility to remove pollution.

 

 

 

SOME IMPORTANT CASES

 

 

 

1. State of Himachal Pradesh and Others Versus Ganesh Wood Products and Others.

 

2. Write Petition © No. of 1994. Dairy No. 1716 of 1994, Petitioners – Mr. M.C. Mehta.

 

3. Rural Litigation and Entitlement Kendra. State of Uttar Pradesh, Air 1988 S.C. 2187. And D.N. Pandey versus Union of India, AIR 1985, S.C. 652.

 

4. Shriram Foods and Fertilizer Industries case (M.C. Mehta Versus Union of India, AIR 1987, S.C. 965.

 

5. Shri Sachidanand Pandey Versus, State of West Bengal, AIR 1987, SC 1109.

 

6. Charanlal Sahu Versus State of West Bengal, AIR 1987, S.C. 1109.

 

7. Tarun Bharat Singh, Alwar, Versus Union of India, AIR 1992, SC 514.

 

8. Municipal Commissioner of Ratlam Versus Vardhichand, AIR 1980, SC 1622.

 

9. Govinda Singh Versus Shanti Swaroop, AIR 1979, SC 143.

 

10. Krishna Gopal Versus State of Madhya Pradesh, 1986, Cri. L.J. 396 (Madhya Pradesh)

 

11. The General Public of the Saproo Valey Versus State of Himachal Pradesh, AIR 1993, (M.P. 52).

 

12. M.C. Mehta Versus Union of India, AIR 1992, SC 382.

 

13. D.D.Vyas Versus Ghaziabad Development Authority, AIR 1993, AIR 57.

 

14. Attakoya Taangal Verus Union of India (1990), Kerala, L.T. 580.

 

15. Damodar Rao Versus Municipal Corporation, AIR 1987, A.P. 1971.

 

16. (Oleum gas leaks case) M.C. Mehta versus Union of India, AIR 1987, SC 965.

 

17. Subba Rao Versus State of Himachal Pradesh, AIR 1989, S.c. 171.

 

18. Public Versus State of West Bengal, AIR 1993, Cal. 215.

 

19. M.C. Mehta Versus Union of India, AIR 1987, SC 965.

 

20. R.R. Singh Versus State of Bihar, AIR 1992, Patna, 96.

 

21. The Goa Foundation Versus the Konkan Railway Corporation, AIR 1992, Bombay 471.

 

22. Calcutta Youth Front Versus State of West Bengal, AIR 1988, SC 436.

 

23. Smt. Satyavani Versus Andhra Pradesh Pollution Control Board, AIR 1993, A.P. 257.

 

24. M.C. Mehta Versus Union of India, AIR 1988, SC 1037.

 

25. AIR 1980, SC 1922.

 

26. AIR 1992, Pat. 86.

 

27. A.K. Thangudurai Versus D.F.O. Madurai, AIR 1985, Madras 104.

 

28. M.C. Mehta Versus Union of India, AIR 1992, SC 382.

 

29. M.C. Mehta Versus State of Orissa, AIR 1992, Orissa, 225.

 

30. S.K. Singh Versus State of Bihar, AIR 1991, SC 1042.

 

31. AIR 1987, SC 359.

 

32. Daham Taluka Environment Protection Group Versus Bombay Subarban Electricity Supply Co. 1991 (25 Sec., 539.

 

33. Virendra Gaur Versus State of Haryana, 1995 (2) SCC.

 

 

 

 

 

COMMON CONVICTIONS IN STOCKHOLM PROCLAMATION

 

 

 

Along with other basic items the Stockholm proclamation also contained certain common conviction of the participant nations and made certain recommendations on development and environment. The common convictions stated include the conviction that the discharge of toxic substances or of other substances and the release of heat in such quantities or concentrations as to exceed the capacity of environment to render them harmless must be halted in order to ensure that serious or irreversible damage is not inflicted upon eco-system, that states shall take all possible steps to prevent pollution of the seas so that hazards to human health, harm to living resources and marine life, damage to the amenities or interference with other legitimate uses of seas is avoided that the environmental policies would enhance and not adversely affect the present and future development potential of development countries, that science and technology as part of their contributions to economic and social development must be applied with identification, avoidance and control of environmental riska and the solution of environmental problems and for the common good of mankind, that states have the responsibility to ensure that activities of exploitation of their own resources within their jurisdiction are controlled and do not cause damage to the environment of other states or areas beyond the limit of national jurisdiction, that it will be essential in all cases to conside the systems of values prevailing in each country and the extent of the applicability of standards which are valid for the most advances countries but which may be in appropriate and of unwarranted social cost and that man and his environment must be spared the effects of nuclear weapons and all other means of mass destruction. These are only some of the statements of principle proclaimed by the Stockholm Conference.

 

 

 

 

 

THE SCOPE : Extracts from – ‘Environmental Law’

 

 

 

The Scope of environmental law is continuously expanding. Therefore, to define it at any point of time is like trying to hit a moving target. Certain items we decide upon today may become out of date almost immediately.

 

 

 

The commitments at the United National Conference on Environment and Development at Rio De Janeiro.

 

 

 

Regulations on eco-managements and audit and on economic labeling, as well as on environmental information and directives on urban waste water treatment, waste and habitants, with others on intergrated pollution prevention and control and on packing (on the horizan). (The drinking water and Bathing waters directives). Important constitutional changes along the lines of the Meastrient Treaty (on European Union).

 

Laws on the lines of (British) the Water Act 1989 (the Water Resources Act 1991 and the Water Industry Act 1991), on air pollution (the Clean Air Act 1993) and on radio-active substances (the Radioactive substances Act 1993).

 

 

 

In the town-planning area, a policy that moves us from a ‘developer-led’ system towards a ‘plan-led’ one.

 

 

 

Nature conservation; waste and water pollution-including the defence available to sewerage undertakers;

 

 

 

Directions of environmental policy. Integrated pollution control, air pollution, waste management and water pollution, statutory water quality objectives.

 

 

 

There should be a debate over a carbon tax and proposals for directive on bonafied and packaging, and the scope of the subsidiary doctrine.

 

 

 

 

 

THE BRITISH SCENE

 

 

 

FROM :

 

ENVIRONMENTAL LAW

 

 

 

Britain had the first national public pollution control agency. The Alkali Inspectorate, established by the Alkali tact 1863 to control atmospheric emissions primarily from the caustic soda industry. Water pollution controls followed in the rivers pollution prevention act, 1876. Britain’s first legislation of cover town planning was the flousing, town planning, etc. Act 1909. Britain had also then the law on nuisance.

 

 

 

The deposit of poisonous wastes Act, 1872.

 

The wild life and country side Act 1981.

 

The Control of pollution Act 1974

 

The control of Pollution (Amendment) Act 1989.

 

The protection of the birds Act 1954.

 

 

 

Britain the ‘Environmental Protection Act, 1990”, contains the main bulk of provisions on air pollution from stationary sources, waste management and disposal, the integrated control of the most potentially polluting processes, litter, the environmental impact of genetically modified organisms, noise and statutory control of environmental nuisance. The ‘Water Resources Act 1991’ contains the law on water pollution and water resources, whilest the ‘Water Industry Act, 1991; covers matters relating to water supply and sewerage. The wildlife and country side Act 1981 includes much of the relevant law on nature conservation includes much of the relevant law on nature conservation in Part I and II “The Town and Country Planning Act,” 1990 includes in consolidate from most of the relevant statutory law on town and country planning and tree protection. The “Planning 9 Listed Buildings (Hazardous substances) Act” 1990 include separtated treatment of listed buildings and hazardous substances. There is also the” Planning and Compensation Act” 1991 which made some significant amendments to the 1990 Acts.

 

 

 

The white paper on environment “The Common Inheritance” 1990, underlined the commitment to a planned development of environmental policy.

 

 

 

Institutional coherence – For example The National River Authority.

 

 

 

Her Majesty’s inspectorate of pollution, etc.

 

 

 

Controls over stationary sources of pollutionh are more coherent than those over mobile or non-point sources.

 

 

 

Needed a unified Environmental Agency covering all institutions and laws. Britain’s Law on environment suffers from anachronism.

 

 

 

Needed a policy of splitting production from regulation, e.g. separation of waste regulation functions from waste disposal function or separation of the regulation of water pollution from regulation of pollution from sewage works.

 

 

 

 

 

 

 

FROM :

 

MANUAL OF EUROPEAN ENVIRONMENTAL LAW

 

– By A. Kiss and D. Shelton

 

 

 

1. Over View : Contents – Mainly – Fundamental Concepts, tech niques of environmental law, institutions and agencies–National, European, International Institutions.

 

 

 

II. Biodiversity and the Promotion of Nature :

 

Sectoral Protection.

 

Protection of the soil.

 

Fresh Water.

 

Protection of the marine environment

 

Atmospheric pollution.

 

 

 

III. Treans-sectoral issues

 

Regulating sources of environmental harm Intergranted environmental protection The role of the public and non-government organization.

 

About the legal frame work, the book states – Organization

 

1. Source of National Laws (a) Constitution; (b) Legislation; (c) Executive decrees (d) Common Law; (e) Administrative agency rules – making; (f) Regional; or Local Law.

 

2. The European Community – (a) Treaty Provisions; (b) Regulations; (c) Directives (d) Action Programmes (e) Implementation.

 

3. International Law – (a) Treaties; (b) Custom; (c) Other sources.

 

4. Relationships between the systems of law.

 

 

 

Documents

 

1. The Stockholm Declaration on the human environment

 

2. The Rio-Declaration on environment and development

 

3. The Single European Act, Amended.

 

 

 

Issues

 

1. Hazardous substances

 

2. Nuclear radiation

 

3. Hazardous Processes and activities

 

4. Waters

 

5. Noise

 

A. Urban and Rural Planning – Urban, Rural and Integrated Planning

 

B. Environment and Development.

 

1. The role of the public

 

a) The right of information

 

b) Public Participation

 

2. The role of non-Governmental organizations

 

a) Delegating management functions to NGOs.

 

b) Using NGO experience

 

c) Complaining of violations

 

d) Participation in licensing and permit procedures.

 

e) Funding environmental projects.

 

 

 

 

 

EDUCATION

 

 

 

(A) In M.C. Mehta Vs. Union of India, the Supreme Court observed that “it is the duty of the Central Government to direct all the educational institutions throughout India to teach atleast for one hour in a week lessons relatively to the protection of the improvement of the natural environment including forests, lakes, rivers, and wild life in the first ten classes”.

 

(B) All American and many European Law curricula include atleast one course in environmental law.

 

(C) Recommendations of the Seminar in 1984 organized by the Deptt. Of law, Punjab University.

 

 

 

The Education on :-

 

a) Over population and the ways to check its rapid growth;

 

b) Afforestation as a prevention to soil erosion and water pollution;

 

c) Rules as to the use of water, taking fuel from the woods, and grazing of cattles.

 

d) Methods to prevent air pollution, insisting one smokeless cooking;

 

e) Discipline in playing radio and television sets and a ban on use of loudspeakers;

 

f) Elementary knowledge of the scientific and philosophical basis of man and the environment;

 

g) Scientific interpretation of ethics – religious tenents of worshipping the constituents of nature, e.g. the fire, the water, the trees and other objects.

 

h) Rules regarding disposal of house hold waste and filth and human exer, etc.

 

i) Restraints to be observed while on roads on places of public resort and during journey; and

 

j) Other general principles of sanitation.

 

 

THE WOUNDED EARTH

 

In 1971 when Edgar Mitchell flew to the moon on board Apollo 14, his first glimpse of earth from space sent him into rhapsody. “It looks like a sparkling blue and white jewel… Laced with slowly swirling veils of white… Like a small pearl in a thick black sea of mystery.” He radioed back effusively to Houston.

 

Twenty-one year later, if Mitchell was to be sent back into space, this time with special spectacles that allowed him to see the invisible gases of the earth’s atmosphere, a vastly different sight would greet him. He would see giant puntures in the protective ozone shiels over Antarctica and North America. Instead of a sparkling blue and white jewel he would see a dull, dirty earth filled with dark, swirling clouds of dioxides of carbon and sulphur.

 

If Mitchell took out his camera and shot images of forest cover of the earth and compared it with those he took in “71, he would be stunned by the amount they have shrunk. And if he opened his special telescope to help him examine the filth in the waters of the earth, he would see ribbons of poison criss-crossing the land masses and dark balls of tar lining much of the ocean floor, “Houston”, he would have radioed back, “What on earth have we done?’

 

Actually, we don’t need to go 36,000 km into space to know what we have done. Today, we can drink, breathe, smell and see pollution. Within a 100 years, and more so in the past 30, human beings have brought the earth to the brink of disaster. By spewing an excessive amount of heart-trapping gaes intothe atmosphere we are riggering debilitating climatic changes. Gases that our refrigerators and air-conditioners use are now responsible for depleting the protective ozone layer, exposing us to skin cancer and altering the gene structures in smaller animals. Meanwhile, we have degraded vast tracks of land, destroyed forests at suicidal rates, dumped tones of poison into rivers indiscriminately and poured toxic chemicals into our seas.

 

Now more than anything else the threat to humanity comes from the destruction of the earth’s environment. And it needs a movement of planetary dimensions to arrest the holcaust. It is this realization that is bringing together heads of 150 nations for a historic summit at Rio de Janeiro from June 3 to June 14.

 

While it would send the right message across the earth, it is not enough. As the two years of preparation for the summit have shown, serious rifts between the developed and developing countries over how to tackle the problem have surfaced. So wide has the gulf been that nations have begun forming power blocks quite similar to the erstwhile military alliances. Environment has suddenly become a major foreign policy issue. And as policy makers are increasingly understanding, no longer can the earth’s ecological ills be treated as separate from issues such as debt, trade, unemployment and inequality.

 

Much of the conflict that has arisen is understandable. The solutions have fundamental implications on the economic progress, or lack of it, for every nation. The next few years may call for some radical measures. It may involve nations making major alterations in their patterns of energy consumption. With the burning of fossil fuels like coat, petrol and wood directly linked to the warming of the earth, countries may be forced to explore other options. Even going nuclear in a big way may have to be considered. It may also bring in startling measures like a tax on carbon emissions. Or carbon budgets being imposed on nations. For industry, environmentally sound technology may become a competitive necessity. Good economic management and environment movements could, in fact, go together.

 

What all this requires is an extraordinary effort by both the rich and poor nations to solve problems. Richer countries would need to reflect on their excessive consumption paterns and realize when how much is too much the poor nations, with some financial assistance, should radically improve their energy efficiency levels, make a serious attempt to limit their population growth, adopt low tech solutions to prevent soil erosion and conserve scarce water resources. The North and South should enter into a constructive partnership, in which technology and finances are used to help poor countries reach sustainable levels of development.

 

All this must be done without delay. For the threat is no more to your children’s future. It is now. And here

 

(Story on Rio Earth Summit. Source : India Today, 15 June, 1992)

 

 

 

WORTH READING BOOKS 

NATIONALISATION OF GOVERNMENTALISATION

FOCUS ON SOCIO ECONOMIC PROBLEMS

PERSPECTIVE

THE GREAT SENTNEL

HIS LEGACY OUR MISSION

COMPUTERISATION

MODERNISATION WITHOUT WESTERNISATION

WHY BHARATIYA MAZDOOR SANGH

CONSUMER : SOVEREIGN WITHOUT SOVEREIGNTY

SPECTRUM

THIRD WAY

RASHTRA

Cruelty Against Husband in India

DHAWESH PAHUJA

In India where marriage is the union between man and woman to get social status in the society and marriage is nothing but procreation and caring of the child. According to Westmark Marriage has been often like as an institution made by itself. As there is increase in number of marriages every day, at the same time breakdown of marriages in the society has also been seen to be increasing whether by fault of husband or wife. Though cases filed by wife against husband and in-laws under Domestic Violence Act and 498-A of IPC to claim maintenance and divorce but all complaints are not filed bona-fidely. Freedoms of education, job opportunities, economic independence and social attitude have brought tremendous change in the status of women. The balance of scale has tilted reversely in favour of women.

Cruelty is an inhuman treatment and it is an act that causes mental sufferings and endangers to the life and health of the other. Cruelty may be in the form of physical as well as mental by the act either of the husband or the wife. Though it is the women who have always been subjected to be tortured and harassed by the husband and relatives, in fact saying this will not be proper as cases of torture and harassment against the husband by the wife is increasing day by day. Cruelty is the main ground to seek divorce as defined under ‘Sec 13(1) (i-a)’ of ‘The Hindu Marriage Act, 1955’ and party who is filing a case must prove that living between husband and wife became impossible.

There are many provisions made applicable for the protection of the women, which has got recognition from our constitutional law. The biased nature of these laws is evident from that fact that unlike almost all laws in INDIA the burden to prove innocence lies on the accused and this means as soon as the complaint is made by the aggrieved person/ wife, the result is that the husband and his family may be immediately arrested and will be considered as accused in the eyes of law. According to the ‘Section 498-A’ of the ‘IPC’ the wife and her parental family can charge any or all of the husband’s family of physical or mental cruelty but genuineness of the case has to be looked into by the court as this section is cognizable, non-compoundable and non-bailable in nature.

What amounts to cruelty against husband? Though it is the duty of the court to decide the case based on facts and circumstances but what amounts to cruelty is an important aspect as misuse of Laws by the wife against husband in society is growing day by day and most apparently some Indian Urban educated women have turned the tables and are using these laws as weapon to unleash personal vendetta on their husbands and innocent relatives and there are certain grounds on which cruelty against husband can be proved:-

• Misuse of Dowry Laws, Domestic Violence Act and ‘Sec: 498-A’ of IPC by wife against husband and in-laws of husband through lodging false complaints.

• Desertion by wife which means wife deliberately intending for separation and to bring cohabitation permanently to an end.

• Adultery by the wife means wife having sexual relationship with some other person during the lifetime of marriage and there must be strict law to punish wife who has committed adultery.

• Wife opting out for second marriage without applying for the divorce proceedings.

• Threatening to leave husband’s home and threat to commit suicide by the wife.

• Cruel behavior of wife where wife tearing the shirt of the husband, refusing to cook food properly or on time and breaking of the mangalsutra in the presence of husband’s relatives.

• Abusing and accusing husband by way of insulting in presence of in-laws and in some cases wife abusing husband in front of office staff members.

• Wife refusing to have sex with husband without any sufficient reasons which can be considered as a ground of cruelty and husband can file a divorce petition.

• Lowering reputation of the husband by using derogatory words in presence of family members and elders.

• Lodging FIR against husband and in-laws which has later proved as false report.

• Conduct and misbehavior of the wife against husband i.e. pressuring husband to leave his home, insisting for the separate residence, mentally torture and disrespectful behavior towards husband and in-laws as well.

• Some other grounds of cruelty i.e. mental disorder and unsoundness of wife, Impotency of wife, illicit relationship of wife with some other person and Wife suffering from the filarial.

• Extra-marital affairs of wife can also be a ground of cruelty against the husband.

• Initiating criminal proceedings against husband and in-laws of husband with mala-fide intention by the wife.

CASE LAWS: situations in Hindu marriage where a wife was held as ‘cruel’ to the husband and the Hindu divorce law was applied by the Supreme Court:

I. Mrs. Deepalakshmi Saehia Zingade v/s Sachi Rameshrao Zingade (AIR 2010 Bom 16)

In this case petitioner/wife filed a false case against her husband on the ground of ‘Husband Having Girl Friend’ which is proved as false in a court of law so it can be considered as cruelty against husband.

II. Anil Bharadwaj v Nimlesh Bharadwaj (AIR 1987 Del 111)

According to this case a wife who refuses to have sexual intercourse with the husband without giving any reason was proved as sufficient ground which amounts to cruelty against husband.

III. Kalpana v. Surendranath (AIR 1985 All 253)

According to this case it has been observed that where a wife who refuses to prepare tea for the husband’s friends was declared by the court as cruelty to husband.

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. A strict law need to be passed by the parliament for saving the institution of marriage and to punish those women who are trying to misguide the court by filing false reports just to make the life of men miserable and ‘justice should not only be done but manifestly and undoubtedly be seen to be done’.

 

TORT OF PASSING-OFF

 CHAPTER 1

THE CONCEPT OF PASSING OFF

Passing off is a wrong, a common law tort which protects the goodwill of a trader from misrepresentation. Misleading the public into believing falsely, that the brand being projected was the same as a well known brand is a wrong and is known as the tort of “passing off” .

As held in the famous case of N. R. Dongre Vs. Whirlpool Corporation

“A man may not sell his own goods under the pretence that they are the goods of another man.”

Law aims to protect traders from this form of unfair competition.

Legally, classifying acts under this tort aims to protect the right of property that exists in goodwill. Goodwill is defined as the part of business value over and above the value of identifiable business assets. So basically it is an intangible asset .

It enables a business to continue to earn a profit that is in excess of the normal or basic rate of profit earned by other businesses of similar type. It might be due to a particularly favourable location, reputation of the brand in the community, or the quality of its employer and employees. The value of goodwill of a brand can be calculated by a number of methods, like

• subtracting the value of all tangible assets from the total value to establish the value of the intangible assets

• the amount of earnings that are in excess of those normally earned by a similar business

• averaging the past five years net income and subtracting a reasonable expected rate of return for tangible assets and salary requirements capitalising the resulting value

Goodwill can be classified into two zones, viz. institutional goodwill and professional practice goodwill. While institutional goodwill associates itself with business houses, their market position, professional practice goodwill, as is quite obvious from the name, associates itself with professional practices like law, medicine, architecture, engineering and many others .

In itself, professional practice goodwill can be divided into practitioner goodwill, where the skill and reputation of the individual practitioner comes to play, and practice goodwill, which is very similar to institutional goodwill and depends on the institute reputation.

The Dutch Advocaat case was the first case where the basic elements of the wrong of passing off were put forth by Lord Fraser. They were as follows

• a misrepresentation

• made by a trader in the course of trade,

• to prospective customers of his or ultimate consumers of goods or services supplied by him,

• which is calculated to injure the business or goodwill of another trader (in the sense that this is a reasonably foreseeable consequence) and

• which causes actual damage to a business or goodwill of the trader by whom the action is brought or (in a quia timet action) will probably do so.

Later in the Jif Lemon case, Lord Oliver reduced these principles to three basic features (now known as the classical trinity) which included

• reputation

• misrepresentation

• damage to goodwill

To sum it up, the tort of passing off covers those cases where one trader falsely misrepresents his goods as those of another trader/brand, which has a good reputation/goodwill in the market and thus leads to damaging his goodwill.

In a passing off action, the plaintiff must prove that there is a similarity in the trade names or marks and that the defendant is passing off his goods as those of the plaintiff’s . Remedies could include injunction or damages or both. Damage or likelihood of damage form the core all passing off actions. The concepts of reverse passing off and extended passing off also hold significance.

Extended passing off consists of those cases where misrepresentation of a particular quality of a product or services causes harm to the plaintiff’s goodwill. A famous case example would be Diageo North America Inc v Intercontinental Brands (ICB) Ltd ., where the defendant marketed a drink named “Vodkat”, which was actually not vodka, but the marketing did not actually make it clear that it wasn’t so. The plaintiffs were the biggest manufacturers of vodka and they filed a suit against the defendants for passing off and it was held so.

If a defendant markets the products made by the plaintiff as the products of the defendant, the tort committed is known as reverse passing off.

CHAPTER 2

EVOLUTION AND DEVELOPMENT OF THE CONCEPT

Liability in the tort of passing off ultimately boils down to misrepresentation. It all started in the 17th century, in the cases Southern v. How and Dean v. Steel . Usually, the judges categorised such torts under deceit or defamation .

Later in the eighteenth century, all cases of passing off were classified as cases of deceit, where the action was usually brought not by the deceived, but by the one whose mark was used to deceive. (Blanchard v. Hill ), limiting the tort to cases where there was a proof of bad faith .

Later, in the nineteenth century, in the case Millington v. Fox , it was decided that proof of fraud was not necessary in such a wrong and it was from here that the actual tort of passing off began building its own definition .

The concept of equity was largely used to realise the scope of passing off. The predominant view was that equity intervened to restrain what would be a fraud if allowed to go ahead and that it protected proprietary rights. This particular viewpoint led to the equity courts to awarding compensations instead of injunctions. This idea was based on the theory that, in such a tort, constructively, the defendant was an agent of the plaintiff .

Later, in the case Cartier v. Carlile , it was decided that a “man must be taken to intend” the natural consequences of his act and mere proof of likelihood of deception was sufficient to prove the wrong.

In Edelsten v. Edelsten , it was put forth that mere notice of plaintiff’s rights satisfied the requirement of fraud and a man could be held liable in such a case whether or not his actions were honest.

Whatever the case be, fraud continued to remain an essential element in the tort. Where fraud was not proved, usually an inquiry into the damages caused was ordered.

Finally it was concluded gradually, that fraud need not be shown while judging such a case.

The final question would be, if the defendant was unaware of the existence of the plaintiff or his brand, would he still be liable for such a tort. The question remained open ended for a long time and at one point, the authorities were opposed to the imposition of liability in such a case. But as of now, the motive of the defendant is not very important in such an action. The only thing that needs to be proved is the reputation established by the plaintiffs .

CHAPTER 3

ANALYSIS OF JUDICIAL DECISIONS

1. Southern v. How

The earliest documented case where there was an indication of passing off, this one dates back to 1618. In this case mark of an eminent clothing brand was used to dupe a customer, who bought the defendant’s low grade clothing thinking it was the plaintiff’s brand.

The defendant was held liable. This though was more a case of deceit, but the principle of passing off clearly started its journey from this case.

2. A.G. Spalding & Brothers v. A.W. Gamage, Ltd.

The defendants had organised a sale where they announced they would sell the plaintiffs’ footballs at a nominal price. But in reality, the intention of the defendants was to sell a different ball, belonging to the plaintiffs’ company of course, than the one advertised.

An action was brought by the plaintiffs seeking to recover damages, which they contended, they had incurred from the dip in sale of their genuine footballs.

It was held that in this type of a wrong, actual passing off was unnecessary. What was important was a description of this wrong in terms of representation. Referring to the defendants’ contention that the writ was issued before there was any kind of sale, there lay no basis in the action and hence, it could not succeed, it was declared that offering to sell was an actionable act. It was also declared that there could be no sort of a limit for awarding damages for such a wrong.

3. Hendricks v. Montagu

The plaintiffs, the “Universal Life Assurance Society” brought an action against the defendants to stop them from carrying on business with the trade name “Universal Life Assurance Association”. The injunction sought was granted and it was mentioned that since the names were too similar for differentiation, the tort of passing off was indeed committed.

4. J Bollinger v Costa Brava Wine Co. Ltd.

Popularly known as the Spanish Champagne case, this particular case saw an action being brought by twelve biggest champagne manufacturers of France, on behalf of every champagne manufacturer in their country, seeking injunctions on use of the word “champagne” while describing Spanish wine, and passing it off as champagne. An injunction was granted.

5. The Dutch Advocaat Case

Erven Warnink B. V. v. J. Townend & Sons is popularly known as the Dutch Advocaat case. This was the first case where basic elements of passing off were first put forth. Lord Fraser, while delivering the judgment had listed five principles of such a tort, which have already been discussed.

In the present case, the first plaintiff was a company from the Netherlands which manufactured a beverage made from eggs and brandewijn spirit. The drink was called Advocaat. The defendants were an English company manufacturing a drink of a similar name (Old English Advocaat), but altogether different in nature, being prepared from eggs and fortified wine. Being a wine based drink, the excise duty on the defendants’ product was much lesser than that on the plaintiff’s product, which had a huge share of the English “Advocaat” market. This resulted in the defendants taking over much of the plaintiff’s market share. An injunction was sought to stop the defendants from using the name “Advocaat”.

Initially it was held that the term “Advocaat” had earned a good reputation and goodwill, being recognised as a drink of good quality and taste, something which the defendants’ product did not comply with, with it having a different recipe. It was held that the defendants were guilty of the tort of passing off. The Court of Appeal reversed this decision by Goulding J., only to see the House of Lords restoring it.

6. The Jif Lemon case

Reckitt & Colman Products Ltd. v. Borden Inc. is popularly known as the Jif Lemon case. The judgment in this case finally formulated three basic principles of the tort of passing off.

The facts of this case go as such;

The plaintiff was a manufacturer of lemon juice and, since 1956, had been selling such juice under the name “Jif” in plastic containers resembling real lemons. The defendant’s product, manufactured in 1985-86 marketed three different kinds of lemon juice in containers precariously similar to those of the plaintiffs’, the only difference being a differently coloured cover and a different brand name, “ReaLemon”.

The plaintiffs’ brought an action for passing off and were successful, with both the Court of Appeal and the House of Lords upholding the decision.

Walton J., observed that a careful shopper might be able to distinguish between the different brands, but, to quote him;

“the slightest peradventure that the effect of the introduction of any of the defendant’s lemons on to the market would be bound to result in many housewives purchasing them in the belief that they were purchasing the well known and liked Jif brand.”

The fact that the brand “Jif” was identified by the shape of its container and not by its label provided the ultimate evidence.

7. Calvin Klein Inc. USA v. International Apparel Syndicate

In this case, the plaintiff, an internationally reputed US company with a tremendous goodwill for designer clothing brought an action for passing off and trademark infringement against International Apparel Syndicate, an Indian company to stop them from using the trade name Calvin Klein and the mark CK.

Calvin Klein did not have a market in India, but their goodwill was based on their reputation earned through advertisements. They also had worldwide trademark registrations in 136 countries including India. In India, their registration covered only textile goods, while their application for trademark registration for clothing, footwear and headgear was still pending. False representation by the Indian company that they were official CK licensees and marketing their products under the trade name of Calvin Klein led to the Calcutta High Court passing an interim order for injunction, stopping International Apparel Syndicate from using the name Calvin Klein and the mark CK, which subsequently became permanent.

The defendants’ contention that the plaintiffs could not bring an action because they did not sell their goods in India was disallowed. The court said that the marks were used with an intention to deceive the customers and to trade riding on the international reputation of Calvin Klein.

8. Honda Motors Co. Ltd. v. Mr. Charanjit Singh and Ors

The defendants manufactured pressure cookers under the name “Honda”, in India. Their application for registration had already been rejected once before and they had applied for registration again, while continuing to sell their products.

The plaintiffs, popular all over the world for their motor goods and electrical appliances brought an action against the defendants. In India, they ran a joint venture with the Siddharth Shriram Group.

In the judgment, it was held that with an established business and sale of quality products, the name “Honda” had become associated with the plaintiffs’ reputation and its goods. It was said that it is very easy for the public to associate the plaintiffs with any product that carries the name of “Honda”. Further, the honourable judges also held that by using the name “Honda” the defendants were creating confusion in the consumers’ minds, which was indirectly affecting the business of the plaintiffs in an adverse way. An injunction was ordered to stop the defendants from using the name “Honda”.

9. Colgate Palmolive Company and Anr. v. Anchor Health and Beauty Care Pvt. Ltd.

Both the plaintiffs and the defendants manufacture well known toothpaste brands. The plaintiffs sued the defendants for passing off. The contention of the plaintiffs was that the defendants’ use of colour and pattern of colours in their dental products was dangerously similar to the plaintiffs’. According to the plaintiffs the proportion of colours (red and white) used by the defendants was almost identical to that of the plaintiffs (1/3:2/3). The reason for bringing in such an action was that the plaintiffs were established in the Indian market since 1951, and had a tremendous goodwill in the country, while the defendants had entered the market only in 1996.

It was held by the court that though there cannot be any monopoly over colour, in a country with a huge number of illiterate and semi-literate people, by marketing a new product with a design closely resembling that of the older product, it is easy to create confusion in the minds of the public, especially when a similar product has been prevailing in the market for close to half a century. It was adjudged that the defendants were using the trade dress of the plaintiffs. The court ordered an injunction, restraining the defendants from using the red/white combination in the disputed order.

10. Smithkline Beecham v. V.R. Bumtaria

The defendants used the name “ACIFLO” for one of their pharmaceutical preparations. The plaintiffs’ sued the defendants for passing off since they had been using the name of “ARIFLO” for the same product, a name which was registered. They did not have a market in India. The plaintiffs contended that advertisements in medical journals amounted to building of a goodwill in India, which was being misused by the defendants. The court held that the reach of medical journals was restricted to a specific class of people and so was the reputation, hence, there was no passing off.

CHAPTER 4

PASSING OFF AND TRADEMARK INFRINGEMENT

Passing off is different from trademark infringement.

To understand the differences between passing off and trademark infringement in India, we need to analyse the scope of trademark infringement and the Trademarks Act, 1999.

Trademark is a company’s identity enabling a customer to distinguish products under that trademark according to the goodwill of the company and quality of the products. Trademarks help the owners to avoid their competitors from using the trademark to their own benefit. The most important and significant point is that the name and reputation of a company is deeply rooted within the trademark. A company cannot afford to let any other person misuse its trademark and in the process harm the reputation, goodwill, and not to forget the business, which must have taken years to become solid .

Section 29(1) of the Trademarks Act, 1999 helps define infringement;

“A registered trade mark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which is identical with, or deceptively similar to, the trade mark in relation to goods or services in respect of which the trade mark is registered and in such manner as to render the use of the mark likely to be taken as being used as a trade mark.”

Passing off is not defined in the Trademarks Act, 1999. But various courts have tried to follow the common law in helping build an idea of passing off. Passing off is said to take place when a trademark, registered or unregistered is infringed in a manner where not only is the mark dangerously similar to that of the plaintiffs’, but also it rides on the plaintiffs’ goodwill to help establish a market and thus ruin the plaintiffs’ market. “Goodwill” plays a big part in instituting an action against the tort of passing off.

Trademark infringement is protected by Section 29 of the Trademarks Act, 1999, as its ambit stretches up to registered trademarks only.

“29. Infringement of registered trade marks

(1) A registered trade mark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which is identical with, or deceptively similar to, the trade mark in relation to goods or services in respect of which the trade mark is registered and in such manner as to render the use of the mark likely to be taken as being used as a trade mark.

(2) A registered trade mark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which because of-

(a) its identity with the registered trade mark and the similarity of the goods or services covered by such registered trade mark; or

(b) its similarity to the registered trade mark and the identity or similarity of the goods or services covered by such registered trade mark; or

(c) its identity with the registered trade mark and the identity of the goods or services covered by such registered trade mark, is likely to cause confusion on the part of the public, or which is likely to have an association with the registered trade mark.

(3) In any case falling under clause (c) of sub-section (2), the court shall presume that it is likely to cause confusion on the part of the public.

(4) A registered trade mark is infringed by a person who, not being a registered proprietor or a person. using by way of permitted use, uses in the course of trade, a mark which-

(a) is identical with or similar to the registered trade mark; and

(b) is used in relation to goods or services which are not similar to those for which the trade mark is registered; and

(c) the registered trade mark has a reputation in India and the use of the mark without due cause takes unfair advantage of or is detrimental to, the distinctive character or repute of the registered trade mark.

(5) A registered trade mark is infringed by a person if he uses such registered trade mark, as his trade name or part of his trade name, or name of his business concern or part of the name, of his business concern dealing in goods or services in respect of which the trade mark is registered.

(6) For the purposes of this section, a person uses a registered mark, if, in particu1ar, he-

(a) affixes it to goods or the packaging thereof;

(b) offers or exposes goods for sale, puts them on the market, or stocks them for those purposes under the registered trade mark, or offers or supplies services under the registered trade mark;

(c) imports or exports goods under the mark; or

(d) uses the registered trade mark on business papers or in advertising.

(7) A registered trade mark is infringed by a person who applies such registered trade mark to a material intended to be used for labelling or packaging goods, as a business paper, or for advertising goods or services, provided such person, when he applied the mark, knew or had reason to believe that the application of the mark was not duly authorised by the proprietor or a licensee.

(8) A registered trade mark is infringed by any advertising of that trade mark if such advertising-

(a) takes unfair advantage of and is contrary to honest practices in industrial or commercial matters; or

(b) is detrimental to its distinctive character; or

(c) is against the reputation of the trade mark.

(9) Where the distinctive elements of a registered trade mark consist of or include words, the trade mark may be infringed by the spoken use of those words as well as by their visual representation and reference in this section to the use of a mark shall be construed accordingly.”

To make things crystal clear as far as unregistered trademarks are concerned, Section 27 of the same act would be enough;

“27. No action for infringement of unregistered trade mark

(1) No person shall be entitled to institute any proceeding to prevent, or to recover damages for, the infringement of an unregistered trade mark.

(2) Nothing in this Act shall be deemed to affect rights of action against any person for passing off goods or services as the goods of another person or as services provided by another person, or the remedies in respect thereof.”

Unregistered trademarks are not protected against pure infringement by the Trademarks Act, 1999 and infringement of such marks can only be protected by bringing an action for passing off. Similarly, confusion between two registered trademarks can be solved by bringing in an action for passing off. Clause 2 of Section 27 gives clear mandate that nothing mentioned in the entire act would affect the rights of any person for instituting an action for passing off.

Unregistered trademarks are granted protection against passing off under Section 134 of the aforementioned act. Sub-clause c of clause 1 of Section 134 says that no suit for passing off arising out of the use by the defendant of any trade mark which is identical with or deceptively similar to the plaintiffs trade mark, whether registered or unregistered, shall be instituted in any court inferior to a District Court having jurisdiction to try the suit.

Section 135 of the act deals with relief in suits for infringement or for passing off and basically includes injunction and damages.

CHAPTER 5

CONCLUSION

In a country where a considerable percentage of the population lives in rural areas, it is very easy to pass off goods. Thousands of instances of passing off can be found out throughout India. Right from garments to tobacco to toothpaste to pencils to pens, you name it, you find it. Unfortunately, a legal solution has evaded most of these. But with the Trademarks Act, 1999 providing protection against passing off, situation has improved, as can be observed from a huge splurge in the number of Indian cases concerning passing off in the recent past. Passing off has come a long way through the common law system and now has some well defined principles and ambit. Perhaps the time is ripe to bring in legislation and enact a statute concerning passing off.

REFERENCES

1. R.F.V. HEUSTON AND R.A. BUCKLEY, SALMOND & HEUSTON ON THE LAW OF TORTS, 395-399 (20th Ed. 2004).

2. W.L. Morison, Unfair Competition and ‘Passing-off’, 2 Sydney Law Review. 50. (1956)

3. Suman Naresh, Passing-Off, Goodwill and False Advertising: New Wine in Old Bottles, 45(1) The Cambridge Law Journal. 97 (1986).

4. Andrew Christie, Of Passing off and Plastic Lemons, 49(3) The Cambridge Law Journal. 403 (1990)

5. Peter Russell, Passing off by Misdescription, 43(3) The Modern Law Review, 336-340 (1980).

6. http://www.valuadder.com/glossary/business-goodwill.html

7. http://www.ventureline.com/accounting-glossary/G/goodwill-definition/

8. http://www.legalserviceindia.com/article/l226-Trademark-Infringement-&-Passing-Off.html

9. The Trademarks Act, 1999.

LIST OF CASES REFERRED

1. Southern v. How, (1618) Cro. Jac. 468, Poph. 14.3, 2 Roll. Rep. 26.

2. Dean v. Steel, (1626) Latch 188.

3. Blanchard v. Hill, (1742) 2 Atk. 484.

4. Millington v. Fox, (1838) 3 My. & Cr. 338.

5. Cartier v. Carlile, (1862) 31 Beav. 292.

6. Edelsten v. Edelsten, (1863) 1 De G., J. & S. 185.

7. Hendricks v Montagu, (1881) 17 Ch.638

8. Spalding & Brothers v. Gamage (A W) Ltd, (1915) 84 LJ Ch 449

9. J Bollinger v. Costa Brava Wine Co. Ltd., [1960] Ch 262

10. Erven Warnink v. J Townend & Sons (Hull) Ltd, [1979] AC 731

11. Reckitt and Colman Ltd. v. Borden Inc., [1990] 1 All E.R. 873

12. Calvin Klein Inc. USA v. International Apparel Syndicate, MANU/WB/0083/1994

13. N. R. Dongre v. Whirlpool Corporation, (1996) 5 SCC 714

14. Kishore Zarda Factory (P) Ltd. v. J.P. Tobacco House, AIR 1999 Delhi 172

15. Honda Motors Co. Ltd. v. Mr. Charanjit Singh and Ors, 101 (2002) DLT 359

16. Colgate Palmolive Company and Anr. v. Anchor Health and Beauty Care Pvt. Ltd, 108 (2003) DLT 51

17. Smithkline Beecham v. V.R. Bumtaria, MANU/DE/2890/2005

18. North America Inc. v. Intercontinental Brands (ICB) Ltd., (2010) EWHC 17 (Ch)

DOMESTIC VIOLENCE AGAINST WOMEN IN INDIA

In India where almost half of the population are women, they have always been ill-treated and deprived of their right to life and personal liberty as provided under the constitution of India. Women are always considered as a physically and emotionally weaker than the males, whereas at present women have proved themselves in almost every field of life affirming that they are no less than men due to their hard work whether at home or working places. Behind closed doors of homes all across our country, people are being tortured, beaten and killed. It is happening in rural areas, towns, cities and in metropolitans as well. It is crossing all social classes, genders, racial lines and age groups. It is becoming a legacy being passed on from one generation to another. But offences against women which reflects the pathetic reality that women are just not safe and secure anywhere. According to a latest report prepared by India’s National Crime Records Bureau (NCRB), a crime has been recorded against women in every three minutes in India. Every 60 minutes, two women are raped in this country. Every six hours, a young married woman is found beaten to death, burnt or driven to suicide.

Violence against women is not a new phenomenon. Women have to bear the burns of domestic, public, physical as well as emotional and mental violence against them, which affects her status in the society at the larger extent. The statistics of increasing crimes against women is shocking, where women are subjected to violence attacks i.e. foeticide, infanticide, medical neglect, child marriages, bride burning, sexual abuse of girl child, forced marriages, rapes, prostitution, sexual harassment at home as well as work places etc. In all the above cases women is considered as aggrieved person.

The term used to describe this exploding problem of violence within our homes is ‘Domestic Violence’. This violence is towards someone who we are in a relationship with, be it a wife, husband, son, daughter, mother, father, grandparent or any other family member. It can be a male’s or a female’s atrocities towards another male or a female. Anyone can be a victim and a victimizer. This violence has a tendency to explode in various forms such as physical, sexual or emotional. ‘Domestic Violence’ includes harms or injuries which endangers women’s health, safety, life, limb or well being, whether mental or physical. It may also be through physical, sexual, verbal, emotional and economic abuse. According to ‘United Nation Population Fund Report’, around two-third of married Indian women are victims of Domestic Violence attacks and as many as 70 per cent of married women in India between the age of 15 and 49 are victims of beating, rape or forced sex. In India, more than 55 percent of the women suffer from Domestic Violence, especially in the states of Bihar, U.P., M.P. and other northern states.

What amounts to domestic violence against women? -Domestic Violence undoubtedly a human right issue where it is very important to know what actually leads to act of domestic violence. The most common causes for women stalking and battering include:- exploitation of women for demanding more dowry, discrimination of women, alienation of women’s self acquired property fraudulently, torture by husband and in-laws of the husband, arguing with the partner, refusing to have sex with the partner, neglecting children, going out of home without telling the partner, not cooking properly or on time, indulging in extra marital affairs, not looking after in-laws, cruelty by husband or in-laws mentally or physically, abusing & insulting by using vulgar language, sexual harassment, molestation, immoral traffic, rape, sodomy and all other inhuman acts. In all above stated causes women are subjected to torture and will be considered as the aggrieved person. Usually violence takes place due to lack of understandings between the couple as well as in the family.

The consequences of domestic violence attack on women, which will affect victim as well as family of the victim. Domestic Violence affects women’s productivity in all forms of life i.e. assaulted women will always get agonized and emotionally disturbed and remain quite after occurrence of the torment. The suicide case of such victimized women is also a deadly consequence and the number of such cases is increasing day by day. A working Indian woman may lose her efficiency in work or drop out from work in some cases. Domestic Violence may affect the life of children at the larger extent because child will be having greater attachment with her mother and once the mother’s grief and sufferings revealed then child may turn silent, reserved and express solace to the mother. In some of the cases violence will lead to maintain distance from the partner whereby sexual life gets affected adversely. Sometimes marriage life will become a burden to the spouse and one of the spouses will opt out for divorce or separation which again affects life of the children.

In a case where wife is beaten up by her husband doesn’t amount to domestic violence unless a sufficient reason of violation of right to life is shown. In another case where the women just not given food, it amounts to domestic violence if it is intended to achieve the ultimate purpose of necking her out of the benefits of shared household.

To prevent violence against women and to protect the rights of aggrieved women, the legislation ‘The Protection of Women from Domestic Violence Act, 2005’ was passed by the parliament. According to this act every women who have been deprived of their right to life by the act of husband or relatives of the husband, can file a complaint to the protection officer, police officer or magistrate in the form of ‘Domestic Incident Report’ (Similar to FIR). Complaint can be filed by the victim /aggrieved person or relatives, it will be considered as the prima-facie evidence of the offence. Every ‘Domestic Incident Report’ has to be prepared by the Protection Officer which will assist in the further investigation of the incidence. The protection officer will pass certain orders i.e. protection of the women, custody of respondent and order of monetary relief to the victim.

The Government of India should come out with some more stringent laws to protect the rights of women who are victims of violence of any kind occurring within the family, so that it will work as the preventive measure to eradicate the crime. A strict law to be passed to punish those women who are filing a false compliant against husband or relatives by misusing of Domestic Violence Act so that there will be fair justice to all.

 DHAWESH PAHUJA