Insider Trading

2007042902001301ABSTRACT

The article comprehensively deals with the recent controversial judgement of Rajat Gupta on Insider trading in United States of America and its impact on Indian Securities market. The author has mainly focused on the circumstances of Rajat Gupta’s case, if such situation arises in India then how the laws in India will impact the trial. The author has also focused on Insider trading laws in United States of America and United Kingdom.

The episode of Rajat Gupta “Insider Trading”

‘SEC V. Rajat Gupta (Civil Action No. 11-cv-7566 (SDNY))’

On September 2008, Rajat Gupta disclosed to Rajaratnam material non-public information he learned as a member of Goldman Sachs Board of Director concerning Berkshire’s 5 billion investments in Goldman Sachs. Rajaratnam, in turn, caused certain Galleon hedge fund to trade on the basis of the material non-public information that Gupta disclosed. On September 22, after Goldman Sachs Board meeting, Rajaratnam received a call from Mr. Rajat Gupta’s office, afterward Galleon hedge fund purchased 1,00,000 Goldman Sachs shares.

The very next day Rajaratnam placed a call to Mr. Gupta and after the call Rajaratnam caused Galleon hedge fund purchased additional 50,000 Goldman Sachs shares. Through a Board meeting, Goldman Sachs approved the 5 billion preferred stock investment by Berkshire. As Gupta knew, Berkshire was a respected and influential investors and its decision to make such a large investment in Goldman Sachs would be favourably viewed by investor as a strong vote of confidence in the firm when the information was disclosed to public. Just after a Board meeting, Rajaratnam caused certain Galleon hedge funds to purchase more than 2, 17,200 Goldman Sachs shares. When Goldman Sachs publicly announced the Berkshire investment along with 2.5 billion stock offering its stock prices from $125.05 per share to $133.00. On the next day Rajaratnam liquidated Goldman Sachs shares generating a profit of $8, 00,000.

Mr. Gupta also disclosed the negative list for the fourth quarter of 2008, reporting a $2.1 billion loss, the first quarterly loss that Goldman Sachs had sustained. As a result of Rajaratnam’s trades on the basis of the material non-public information that Mr. Gupta provided, Galleon hedge funds avoided losses of more than $3.6 million.

The financial result for second quarter of 2008 were also disclosed to Rajaratnam, due to which total illicit profits made by the Galleon hedge funds by virtue of their trading on the basis of Gupta’s material non-public information concerning Goldman Sachs second quarter of 2008 results were nearly $18.5 million.

Non-public information of Procter & Gamble’s were disclosed to Rajaratnam who then passed the material non-public information to his Galleon colleagues, who then caused certain Galleon funds to trade on the basis of the information. Through this non-public information, the Galleon funds generated illicit profits of over $5, 70,000.

WIRE TAPPINGS

The Prosecution in this case majorly relied on phone tapping where Mr. Gupta tipped Rajaratnam about information which was not meant to be public at that time. Earlier the United States Court did not allow the wire tapping’s by stating that Government is not authorized to use wire taps to investigate the matters of Insider Trading.

Later U.S District Judge Richard Holwell allowed the tapping’s by stating that “Prior to the Rajaratnam case, you look at insider trading rings, and they are very small. Prosecutors would wind up getting one, two, three people. The Rajaratnam case showed that with wiretaps, you can sweep in rings of tippers, leading to a vast array of prosecution.”

The Government asked U.S Senior District Judge for a pre-trial ruling that tapes be admissible because they contains statements that were against Rajaratnam’s interest and were made in furtherance.

In Insider Trading cases the investigating agencies have to establish three basic elements. First of all, one has to have evidence of action in the market, whether a buy or a sell, then one has to prove that the insider had particular information that others did not have and then the investigators have to establish one caused the other. The key frustration for investigators often comes in establishing the cause and effect. Even in the high profile Raj Rajaratnam-Rajat Gupta case in the US, it is not clear if the authorities would have the conversation, taping of which incidentally was permitted to crack the insider trading case.

The case of Rajat Gupta challenged the powers of Securities Exchange Board of India where an Insider is prosecuted mainly on the basis of Telephone Tapping and no motive to secure profit.

ARTICLE 21 OF INDIAN CONSTITUTION

According to laws in India the main issue would be that can such wiretapping amounts to violation of fundamental right of an individual or not?

In the case of People’s Union for Civil Liberties Vs Union of India and ans “Telephone tapping is a serious invasion of an individual’s privacy. With the growth of highly sophisticated communication technology, the right to hold telephone conversation, in the privacy of one’s home or office without interference, is increasingly susceptible to abuse. It is no doubt correct that every Government, howsoever democratic, exercises some degree of sub rosa operation as a part of its intelligence outfit but at the same time citizen’s right to privacy has to be protected from being abused by the authorities of the day. ”

“No person shall be deprived of his of his life or personal liberty except according to ‘procedure established by law’.”

Through the case of A.K Gopalan vs State of Madras the apex court interpreted that the words “procedure established by law” in Article 21 refers to only state made statues, if any statutory law prescribed procedure for depriving a person of his rights or requirement of Article 21.

In the subsequent cases such as R.C Cooper v. Union of India it was held that any law that deprives the life and liberty must be fair and just.

The apex court widened the scope of article 21 and has provided with the rights article 21 within itself, on of them are of ‘Right to Privacy’

The right to personal liberty takes in not only a right to be free from restrictions placed on his moment, but also free from encroachment on his private life. It is true that our constitution does not expressly declare a right to privacy as a fundamental right but the said right is an essential ingredient of personal liberty.

Before a person is deprived of his life and personal liberty the procedure established by law must be strictly followed and must not be departed from to the disadvantage of the person affected.

As the Constitution of India suggests it an essential requirement that a statute should be there so that a person’s phone can be tapped. A written statute provides power to a state and the words ‘procedure established by law’ are fulfilled making the act not against Article 21 i.e Right to Privacy.

Stating more in the case of People’s Union of Civil Liberties v. Union of India , The Court has ruled that telephone conversation is an important facet of a man’s private life. The right to hold a telephone conversation in the privacy of one’s home or office without interference can certainly be claimed as “right to privacy”. Conversations on the telephone are often an intimate and confidential character. Telephone conversation is a part of modern man’s life. Tapping of telephones is a serious invasion of privacy. “Right to privacy” would certainly include telephone conversation in the privacy of one’s home or office. This means that telephone tapping would infract Article 21 unless it is permitted under the procedure established by law. The procedure has to be just fair and reasonable.

INDIAN TELEGRAPH ACT

The powers to tap phone lines are being mentioned under section 5(2) of Indian Telegraph act 1885 which states, “On the occurrence of any public emergency, or in the interest of the public safety, the Central Government or a State Government or any officer specially authorised in this behalf by the Central Government or a State Government may, if satisfied that it is necessary or expedient so to do in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of an offence, for reasons to be, recorded in writing, by order, direct that any message’ or class of messages to or from any person or, class of persons, or relating to any particular subject, brought for transmission by or transmitted or received by any telegraph, shall not be transmitted, or shall be intercepted or detained, or shall be disclosed to the Government making the order or an officer thereof mentioned in the order: Provided that press messages intended to be published in India of correspondents accredited Central Government or a State Government shall not be intercepted or detained, unless their transmission has been Prohibited under this sub- section.”

Telephone tapping is permissible in India under section 5(2) of Telegraph Act 1885. The Court has held that this section is constitutionally valid. This section lays down the circumstances and the grounds when an order for tapping of a telephone may be passed. The constitutional validity of this provision has not been questioned, but no procedure for making order is laid down therein.

The Indian Telegraph Act 1885 carries few provision under which the Indian Government and its agencies can tap phones in India but these provision are not sufficient an outdated. As on the date there is no constitutionally sound lawful interception and phone tapping law in India. Phone tapping is permitted based on court order only and such permission is granted only if it is required to prevent a major offence involving national security or to gather intelligence on anti national terrorist activities. Though economic offences/ tax evasions were initially covered under the reasons of interception of phones, the same was withdrawn in 1999 by Government based on a Supreme Court order citing protection of the privacy of the individual.

In 1996 Judgment, The Supreme Court of India stated that “wire taps are serious invasion of an individual’s privacy”. The Court also set out guidelines for wire tapping by the government that who can and under what conditions phone lines can be tapped. Only the Union Home Ministry, or his counterpart in the state, can issue an order for a wiretap. The Government is also required to show that the information sought cannot be obtained through any other means. Recordings or transcript of the tapped phone calls are not generally accepted as primary evidence in Indian Court, such evidences are permitted under Prevention of Terrorism Act and the Unlawful Activities Act.

After the Judgment of Rajat Gupta’s case, the Indian market regulator i.e. Securities Exchange Board of India has sought approval from the government to use telephone call records as evidence in the insider trading cases.

ARTICLE 19 OF INDIAN CONSTITUTION

When a person is talking on telephone, he is exercising his right to freedom of speech and expression. Telephone tapping, accordingly infracts Article 19(1) (a) unless it falls within the grounds of restrictions falling under Article 19(2).

The grounds mentioned in Article 19(2), that the competent authority under Section 5(2) of Indian Telegraph Act, 1885 is empowered to pass an order of interception after recording its satisfaction that it is necessary or expedient to do in interest of-

1. Sovereignty and integrity of India;

2. The security of the State;

3. Friendly relations with foreign state;

4. Public order;

5. For preventing incitement to commission of an offence

When any of the five situations mentioned above to the satisfaction of the competent authority requires, then the said authority may pass the order for interception of messages by recording reasons in writing for doing so. Thus, so far as the power to intercept conversation is concerned Section 5 clearly laws down the situation under which it can be exercised, but the substantive law as laid down in Section 5(2) must have procedural backing so that the exercise of power is fair and reasonable. The said procedure itself must be fair, just, and reasonable.

In absence of just and fair procedure for regulating the exercise of power under section 5(2) of the Act, it is not possible to safeguard the rights of the citizens guaranteed under Article 19 and 21. Accordingly, the court has itself filled in the gap by issuing procedural directions for exercise of power under S.5 (2) of Telegraph Act 1885.

Through Hukum Chand Shyamlal case the Court has laid down inter alia that an order of telephone tapping under section 5(2) shall not be made except by the Home Secretary, Government of India and Home Secretaries of the State Governments.

 

NON PROFIT MOTIVE

In the case of Securities Exchange Commission v. Roger .D. Blackwell , the honourable US District Court for the Southern court of Ohio states that for convicting some person liable for Insider trading it is not necessary that there should be direct profit motive in the mind of Insider.

A different judgment in the case of Raymond L. Dirks v. Securities and Exchange Commission , Where Mr. Ray Driks who worked as securities analyst found the insurance company for which he was working was involved in securities fraud. Mr. Driks disclosed this fraud to public. The SEC censured him for “insider trading” because he provided his clients with non-public information. The Supreme Court found Mr. Driks not guilty and stated that “Even though Mr. Driks client had profited from his action, Driks was not guilty because profit had not been his intent in uncovering the fraud.”

Circumstances plays an important role in the cases of Insider trading, on comparing both the above mentioned case Mr. Blackwell disclosed the information to those person with whom he was having fiduciary relations or family or friends, but in the case of Dirks, where the accused just acted as a whistleblower against the insurance company where he worked. Securities laws, whether in India or USA are formed to save the interest of the investors. The act of revealing the unpublished information of the insurance company by Raymond Driks was to save the interest of the investor and to gain any profit out it.

INDIA

In India, according to SEBI (Insider Trading) Regulations there are two conditions need to be fulfilled to hold somebody guilty as an insider.

1. The “insider” must be a connected person with access to unpublished price sensitive information or he is a deemed to be a connected person.

2. He has traded in those securities on the basis of unpublished price sensitive information.

In the case of Rakesh Agarwal v. Securities Exchange Board of India , Mr. Rakesh Agarwal, the Managing Director of ABS Industries Ltd, was involved in negotiations with Bayer A.G, regarding their intention to take over ABS. Being the Managing Director he had access to the price sensitive information. Before announcement of the merger is made public Mr. Rakesh Agarwal through a collusive agreement with his brother-in- law to take over the shares of ABS from market, thereafter he tendered the same shares through the open offer making huge profit. Later Bayer AG acquired ABS and Mr. Agarwal was also considered as an insider.

In defence Mr. Agarwal denied the allegations levelled against him by SEBI stating that he has acted in such a manner for the benefits of the company and he has no intention to have personal gains. He wanted to acquire 51% shares of the company of ABS through Bayer and he wanted to plan to be executed in clinical precision. Taking into consideration of the defence taken Securities Appellate Tribunal held that Mr. Agarwal did that in interest of the ABS.

INSIDER TRADING LAWS IN INDIA

The Patel Committee in 1986 in India defined Insider Trading as “Insider trading generally means trading in the shares of a company by the person who are in the management of the company or are close to them on the basis of undisclosed price sensitive information regarding the working of the company, which they possess but which is not available to others”. The Patel Committee also recommended that the securities contract (Regulation) Act, 1956 may be amended to make exchanges curb insider trading and unfair insider trading and unfair stock deals.

To strengthen the existing Insider Trading Regulations and to create a framework for prevention of insider trading, committee was constituted by SEBI under chairmanship of Mr. Kumar Mangalam Birla. The recommendations of the committee were considered by the SEBI Board and the amended regulations were notified .

The SEBI (Prohibition of Insider Trading) Regulation 1992, comprise of four chapters and three schedules encompassing the various regulations related to insider trading. Chapter I deal mainly with the definitions used in regulation. Chapter II provides for prohibitions on dealing, communicating or counselling by insider. It also contains the defences available to a company in proceeding against it on allegation of Insider trading. Chapter III narrates the investigating powers of SEBI under the regulation and also enumerates the prohibitory orders or directions that it can issue against the guilty in the interest of the capital market regulation. Chapter IV deals with the code of internal procedure and conduct to be followed by listed companies and other entities, disclosure requirements be followed by company. It also contains appeal provisions which an aggrieved person may like to follow against the orders of SEBI.

Hindustan Level Limited- The definition of insider was amended after the famous case of Hindustan Level Limited in 1998 in which the definition included those persons also who “has received or has had access to such unpublished price sensitive information”, and not just a person who is or was connected with the company. A concept of deemed connected person which included all the relatives of that particular connected person.

 

INSIDER TRADING LAWS IN UNITED STATES OF AMERICA

The rules regarding insider trading are contained in Securities Exchange Act 1934. There are other laws to prevent insider trading like Insider Trading Sanction Act 1984, the Insider Trading and Securities Fraud Enforcement Act, 1988. The Insider Trading Sanctions Act of 1984 and the Insider Trading and Securities Fraud Enforcement Act of 1988 provide for penalties for illegal insider trading. The penalties are indeed burdensome and stringent in nature. It may be as high as three times the profit gained or the loss avoided from the illegal trading.

The Securities Exchange Act, 1934 imposed statutory curbs on Insider Trading, requiring public disclosures of insider’s transactions in the shares of their companies and providing for recovery of ‘shortswing’ profit by them. The act provided the remedial measures for protection of investors against sharp practices and fraudulent schemes by insiders in making short- term, speculative profit.

In USA the act of Insider trading was addressed through introduction of section 16(b) and 10(b) of Securities Exchange Act 1934. Section 16(b) prohibits short term profits by corporate insiders whereas Section 10(b) makes it unlawful for any person to use or employ in connection with the purchase or sale of any security registered on a national securities exchange or any security not so registered, any manipulative or deceptive device or contrivance in contravention of such rules and regulation as the SEC may prescribe. These anti-fraud provisions make fraud or misrepresentation in connection with the purchase or sale of a security, an unlawful aspect.

The Insider trading law in USA is a part of the general law relating to fraud. Under the federal system prevailing in the USA, there were state laws know as “Blue sky” laws which contain anti-fraud provisions which are used to deal with insider trading.

In the case of Driks v SEC the Court held that the tippers are liable if they had reason to believe that the tipper had breached a fiduciary duty in disclosing confidential information and the tipper received any personal benefits from the disclosure. The Driks case also defined the concept of ‘constructive insiders’ who are lawyers, investment bankers who receive confidential information from a corporation while providing service.

INSIDER TRADING LAWS IN UNITED KINGDOM

There are four key ingredients where the regulations of Insider Trading apply in United Kingdom.

• It must relate to the securities and the particular issue of the securities and not just be concerned with the securities and issuer of securities in general. Thus information would constitute insider information if it relates to the particular industry even if it does not relate to the issuer.

• However, the information pertaining to the Government economic policy and bank rate would not come within the purview of the unpublished information.

• Information may be either specific or precise. The information regarding the takeover bid is specific information but the price at which the bid would take place is precise information.

• Information must not have been made public

 

The laws regarding insider trading in United Kingdom are divided into 3 parts.

1. Part V of Criminal Justice act 1993

2. Section 118 of Finance Services and Market act 2000

3. Companies Securities (Insider Trading) Act 1985

Part V of Criminal Justice Act 1993 provides for the offence of insider dealing that seeks to prevent individuals from engaging in three classes of conduct in certain circumstances like “it prohibits dealing in price- affected securities on the basis of inside information. It prohibits the encouragement of another person to deal in price- affected securities on the basis of insider information and it prohibits knowing disclosure of insider information to another.”

As per Section 52 which states

1. An individual who has information as an insider is guilty of insider dealing if, in the circumstances mentioned in sub-section (3) he deals in securities that are price affected securities in relation to information.

2. An individual who has information as an insider is also guilty of insider dealing if

a. He encourages another person to deal in securities that are price- affected securities in relation to information, knowingly or having reasonable cause to believe that the dealing would take place in the circumstances mentioned in sub section 3

b. He discloses information otherwise than in proper performance of the functions of his employment, office or profession, to another person

Section 57(1) of Criminal Justice Act 1993 provides that a person has information as an insider if and only if it is and he knows that it is inside information, and he has it and knows that he has it from an inside source. This act makes insider trading illegal on the basis of unpublished specific information likely to materially affect the market price of stock if the insider knew the information was price sensitive. Under British Laws the alleged offender will not be guilty of insider trading if he had neither knowledge nor any cause to believe that dealing would take place based on the information.

There were certain loop holes in Criminal Justice Act 1993, to fill these gapes Financial Services and Market act 2000 was passed to prevent insider trading, this act made the offence of market abuse applicable to legal entities and natural persons. FSA i.e Financial Services authority which is empowered to prosecute the criminal offence of market manipulation and the offence of insider trading

Even Section 118(2) lays down three tests which need to be satisfied to constitute market abuse:

1. That the behaviour must occur in connection which a qualifying investment traded on a prescribed market.

2. One or more of the following as misuse of information, false or misleading impression or market distortion

3. The behaviour must fall below the standard of behaviour that a regular user of the market would reasonably expect of a person in the position of the person in question. Behaviour will amount to market abuse only if it satisfies all three tests

 

Right to Sleep –The Apex Court’s Lullaby for the People!

(Dr.)Mohan Rao B,

Principal, Manair College of Law, Khammam

An Irish Proverb goes on to say that the beginning of health is sleep. The state of sleep has been described by Homer in the famous epic Iliad as “sleep is the twin of death”. Aristotle, the great Greek philosopher has said that all men are alike when asleep.

Sleep is an unconscious state or condition regularly and naturally assumed by man and other living beings during which the activity of the nervous system is almost or entirely suspended. It is the state of slumber and repose. It is a necessity and not a luxury. It is essential for optimal health and happiness as it directly affects the quality of the life of an individual when awake inducing his mental sharpness, emotional balance, creativity and vitality. It is believed that a person who is sleeping, is half dead. His mental faculties are in an inactive state.

Sleep is, therefore, a biological and essential ingredient of the basic necessities of life. If this sleep is disturbed, the mind gets disoriented and it disrupts the health cycle. . Sleep, therefore, is a self rejuvenating element of our life cycle and is, therefore, part and partial of human life. The state of sleeping is assumed by an individual when he is in a safe atmosphere. It is for this reason that this natural system has been inbuilt by our creator to provide relaxation to a human being. The muscles are relaxed and this cycle has a normal recurrence every night and lasts for several hours. It is so essential that even all our transport systems provide for facilities of sleep while travelling. Sleep is therefore, both, life and inherent liberty which cannot be taken away by any unscrupulous action.

Sleep is a natural process which is inherent in a human being, if disturbed obviously affects basic life. It is for this reason that if a person is deprived of sleep, the effect thereof, is treated to be torturous. Disruption of sleep has a wide range of negative effects. If disruption is brought about in odd hours preventing an individual from getting normal sleep, it also causes energy dis balance, indigestion and also affects cardiovascular health. These symptoms, therefore, make sleep so essential that its deprivation would result in mental and physical torture both. It also impairs the normal functioning and performance of an individual which is compulsory in day-to-day life of a human being. The disruption of sleep is to deprive a person of a basic priority, resulting in adverse metabolic effects. It is a medicine for weariness which if impeded would lead to disastrous results. Deprivation of sleep has tumultuous adverse effects. It causes a stir and disturbs the quiet and peace of an individual’s physical state.

To take away the right of natural rest is also therefore violation of a human right. It becomes a violation of a fundamental right when it is disturbed intentionally, unlawfully and for no justification. To arouse a person suddenly, brings about a feeling of shock and benumbness. The pressure of a sudden awakening results in almost a void of sensation. Such an action, therefore, does affect the basic life of an individual.

 

‘Suo Motu’ Rescue to Protect Fundamental Rights

Recalling Paster Niemoller’s statement, ‘‘when they arrested my neighbour I did not protest! when they arrested men and women in opposite houses I did not protest!! when they finally came for me there was no body left to protest….,’ we may applaud the suo moto cognizance of the Supreme Court as guarantor and savior of the fundamental rights to the people of India.

In Re-Ramlila Maidan Incident Dt . v Home Secretary, case on 4th June, 2011, Baba Ramdev’s hunger strike began with the motto of `Bhrashtachar Mitao Satyagraha. Baba Ramdev had been granted permission to hold satyagraha at Jantar Mantar, of course, with a very limited number of persons. Despite that, the crowd at the Ramlila Maidan swelled to more than fifty thousand. No yoga training was held for the entire day. At about 1.00 p.m., Baba Ramdev decided to march to Jantar Mantar for holding a dharna along with the entire gathering. Keeping in view the fact that Jantar Mantar could not accommodate such a large crowd, the permission for holding the dharna was withdrawn by the authorities.

Negotiations took place between Baba Ramdev and some of the ministers on telephone, but, Baba Ramdev revived his earlier condition of time-bound action, an ordinance to bring black money back and the items missing on his initial list of demands. At about 11.15 p.m., it is stated that Centre’s emissary reached Baba Ramdev at Ramlila Maidan with the letter assuring a law to declare black money hoarded abroad as a national asset. The messenger kept his mobile on so the Government negotiators could listen to Baba Ramdev and his aides. The conversation with Baba Ramdev convinced the Government that Baba Ramdev will not wind up his protest. At about 11.30 p.m., a team of Police, led by the Joint Commissioner of Police, met Baba Ramdev and informed him that the permission to hold the camp had been withdrawn and that he would be detained. At about 12.30 a.m., a large number of CRPF, Delhi Police force and Rapid Action Force personnel, totaling approximately to 5000 (as stated in the notes of the Amicus. However, from the record it appears to be 1200), reached the Ramlila Maidan. At that time, the protestors were peacefully sleeping.

Thereafter, at about 1.10 a.m., the Police reached the dais/platform to take Baba Ramdev out, which action was resisted by his supporters. At 1.25 a.m., Baba Ramdev jumped into the crowd from the stage and disappeared amongst his supporters. He, thereafter, climbed on the shoulders of one of his supporters, exhorting women to form a barricade around him. A scuffle between the security forces and the supporters of Baba Ramdev took place and eight rounds of teargas shells were fired. By 2.10 a.m., almost all the supporters had been driven out of the Ramlila Maidan.

The Apex Court passed the verdict after taking ‘suo motu’ cognizance of media reports showing the brutality of police action against the followers of Ramdev who were sleeping. The Court speaking through Justice Swatantar Kumar and Justice Chauhan gauged the dimensions of legal provisions in relation to the exercise of jurisdiction by the empowered officer in passing an order under Section 144 of the Code of Criminal Procedure, 1973. While appreciating that there might be a reason available to impose prohibitory orders calling upon an assembly to disperse, the Court opined that there did not appear to be any plausible reason for the police to resort to blows on a sleeping crowd and to throw them out of their encampments abruptly. The affidavits and explanation given did not disclose as to why the police could not wait till morning and provide a reasonable time to this crowd to disperse peacefully. The undue haste caused huge disarray and resulted in a catastrophe that was witnessed on Media and Television throughout the country.

According to the Court, a person cannot be presumed to be engaged in a criminal activity or an activity to disturb peace of mind when asleep. Justice Chauhan opined, ‘To presume that a person was scheming to disrupt public peace while asleep would be unjust and would be entering into the dreams of that person. ‘I am bewildered to find out as to how such declaration of the intention to impose the prohibition was affected on a sleeping crowd.’

There was no reasonable explanation for the gravity or the urgent situation requiring such an emergent action at this dark hour of midnight. Therefore, in the absence of any such justification the Court had no option but to deprecate such action and it also casts a serious doubt about the existence of the sufficiency of reasons for such action. The incident in Ram Leela Maidan incident was held ‘an example of a weird expression of the desire of a tyrannical mind to threaten peaceful life suddenly for no justification’. The Court viewed that coupled with what was understood of sleep would make it clear that the precipitate action was nothing but a clear violation of human rights and a definite violation of procedure for achieving the end of dispersing a crowd.

The Supreme Court analyzed Article 355 of the Constitution of India provides that the Government of every State would act in accordance with the provisions of the Constitution. The primary task of the State is to provide security to all citizens without violating human dignity. Powers conferred upon the statutory authorities have to be, perforce, admitted. Nonetheless, the very essence of constitutionalist is also that no organ of the State may arrogate to itself powers beyond what is specified in the Constitution.

 

Disturbing Sleep Violates Fundamental Right

‘An individual is entitled to sleep as comfortably and as freely as he breathes. Sleep is essential for a human being to maintain the delicate balance of health necessary for its very existence and survival.’ Sleep is, therefore, a fundamental and basic requirement without which the existence of life itself would be in peril. To disturb sleep, therefore, would amount to torture which is now accepted as a violation of human right. It would be similar to a third degree method which at times is sought to be justified as a necessary police action to extract the truth out of an accused involved in heinous and cold- blooded crimes. It is also a device adopted during warfare where prisoners of war and those involved in espionage are subjected to treatments depriving them of normal sleep.

Can such an attempt be permitted or justified in the given circumstances of the present case? Judicially and on the strength of impartial logic, the answer has to be in the negative as a sleeping crowd cannot be included within the bracket of an unlawful category unless there is sufficient material to brand it as such. The facts as uncovered and the procedural mandate having been blatantly violated, is malice in law and also the part played by the police and administration shows the outrageous behaviour which cannot be justified by law in any civilized society. For the reasons aforesaid, Dr. B.S. Chauhan concurred with the directions issued by Justice Swatantar Kumar with a forewarning to the Respondents State and the Police to prevent any repetition of such hasty and unwarranted act affecting the safe living conditions of the citizens/persons in the country.

 

Criticism against the Ram Leela Maidan Judgment

Delivering a lecture on “Jurisprudence of Constitutional Structure”, S.H.Kapadia, [former] the Chief Justice of India, was making an apparent reference to the recent Supreme Court judgment in the Ramlila Maidan police action against Ramdev’s supporters in which “Right to Sleep” was declared a fundamental right. The C.J. stated, ‘Now, we have included right to sleep, where are we going? It is not a criticism. Is it capable of being enforced? When you expand the right, the judge must explore the enforceability. “Questions which judges must ask are if it is capable of being enforced. Judges must apply enforceability test. Today, if a judge proposes a policy matter, government says we are not going to follow. Are you going by way of contempt or implement it?” he asked. He also wondered what would happen if the executive refuses to comply with judiciary’s directives that may not be enforceable. “Right to life, we have said, includes environmental protection, right to live with dignity. “Judges should not govern this country. We need to go by strict principle. Whenever you lay down a law, it should not interfere with governance. We are not accountable to people. Objectivity, certainty enshrined in the basic principles of the Constitution has to be given weightage,” he said. Kapadia said judges should go strictly by the Constitutional principles which has clearly demarcate the separation of powers among the judiciary, the legislature and the executive.

With due respects to the Justice, the opinions must be taken as personal. The assertions that ‘Whenever you lay down a law, it should not interfere with governance. We are not accountable to people,’ -is untenable. The Court is expected to interfere even with the governance whenever there is i) violation of rule of Law, ii) an ultravires/excessive actions of the power conferred by Law, iii) the basic and fundamental human freedoms are violated and iv) the basic structures of the Constitution are deviated. The Constitutional principles envisage judicial intervention interpretative function and diligent interference for upholding the Constitution and the Rule of Law. The Courts are also accountable to people though not directly. If, judgments are given based on unscrupulous principles only to support a government in power, there would be serious consequences. [ as Justice Krishna Iyyer aptly stated ] the Court is also a Political Institution [ meant to do good to people.]

 

Conclusion

The judgment of the Supreme Court was indeed like a lullaby for the citizens of the country in general. The State cannot adversely affect the natural and personal freedom implicitly read by the Court to include right to sleep.

S. H. Kapadia’s criticism is redundant. The criticism is not even an ‘obiter dictum’. Therefore, fortunately, it is not binding on the Courts. As far as the enforceability of the right to sleep is concerned, with such laudable judgments, excessive State/police actions can be controlled. Pursuant to the judgment, the Police shall not resort to midnight operations akin to Dr. Karunanidhi’s arrest. Lest, the citizens should get right to remedy for such late night police operations. The ‘judicial right’ expanding the new vistas would open scope and hope for the needy and deserving indigent public would get in future, their rights realized through the judgment.

However, the Supreme Court was not ‘definitely dealing in Ram Leela Maidan Case, with the rights of homeless persons who may claim right to sleep on footpath or public premises…’ but restricted the case only to the extent as under what circumstances a sleeping person may be disturbed. The Apex Court categorically maintained that the State authorities cannot deprive a person of that right to sleep anywhere and at all times. The verdict creates a hope for many homeless pavement dwellers and reminds the governments’ responsibility to protect the right to sleep of the indigent, homeless orphans, pavement/street dwellers including the vulnerable women, adolescents, kids and the aged.

Barriers to Livelihood of Street Vendors

“Lively, diverse, intense cities contain the seeds of their own regeneration, with energy enough to carry over for problems and needs outside themselves.”

 

Introduction

In most Indian cities the urban poor survive by working in the informal sector . Poverty and lack of gainful employment in the rural areas and in the smaller towns drive large number of people to the cities for work and livelihood. These people generally possess low skills and lack the level of education required for the better paid jobs in the organized sector. Besides, permanent protected jobs in the organized sector are shrinking; hence even those having requisite skills are unable to find proper employment. Hence, for these people work in the informal sector is the only means for their survival. This has led to a rapid growth of the informal sector in most of the large cities. For the urban poor, hawking/street vending is one of the means of earning a livelihood as it requires less skill and low financial input.

The most frightening experience for the vendors is, the regular eviction carried out by the district or municipal administration. They fear the very sight of the eviction team which is known locally by different names. For example, in Patna, it is called hallagari. Eviction takes a heavy toll on their business since they have to restart the cycle of building up working capital.

Other problems include that most part of their income is taken away from them through extortion. The extortion racket also involves the local goondas and dadas and sometimes in association with local police constables. Cases of rangdari tax and hafta are common. In many cities vendors have to part with substantial money in order to ply their trade. As a result, a large portion of vendor’s income is drained away and he/she is not able to carry on the business with dignity and peace. Voices have been raised against harassment, torture and exploitation by the police/municipal authorities and mafia. These protests have helped the unions in gaining relief such as stopping of evictions, extortion by police and anti-social elements. In most cases, the administration only responds by making cosmetic changes. A holistic approach and a genuine desire to settle matter amicably between all stakeholders has, however, remained elusive.

Interviews of persons involved in this profession.

In order to know more about their lives, 3 street vendors offering different products were interviewed. The given below are the sample question which forms the part of the questionnaire and were asked during the interview.

• How much do you earn per day?

• Kind of occupation they are involved into?

• Is that income sufficient for their family?

• How far is your place of work?

• What is your working hour?

 

The first person interviewed was a book vendor. His name is Janardhan Pandey. Janardhan Pandey, 53 year old, book vendor is into this trade from past 30 years. He is the sole bread earner for his big family of 7 members, who are completely dependent on him. He deals in selling and purchasing of 2nd hand books as well as 1st hand books & magazines. Usually he sits on his fixed place but sometimes uses push cart to sell books in nearby locality. Earning of Rs. 5000-6000 per month is not sufficient enough for such big family with the heat of inflation. Out of his total income he is forced to pay certain fix amount to police constables as hafta every month for occupying an area on pavements. It’s very difficult to survive in such a small income but somehow they have to manage.

 

Next vendor interviewed sells flowers, bouquet. His name is Shankar Patil. He is 40 years old uneducated man who started earning at the age of 20 years. His family was into agriculture. After coming to Bombay he started his own business of selling flowers and bouquet. The sale does not remain constant throughout the year as it depends upon festivals and marriage and various other occasions such as friendship day, valentine day etc. On  an average he earns Rs.5000-6000/month which is again not good enough for a family of 4 members. His family completely depends on him; no one from family contributes to the income. He doesn’t have a fixed place to sit.

His day to day activity includes plucking of flowers from various gardens early in the morning, some of them they have planted at their residence. Since the type of product is of perishable nature, he has to sell them of all at the end of the day or next day at whatever price he is getting.

The last vendor interviewed was 62 years old lady selling chewing Tobacco, Cigarette, Beedi, etc. Her name was Sadhvi Gaitonde. She is selling tobacco products from past 40 years sitting at the same place. She sits on pavements on road side near Churchgate station. She earns Rs.3000-4000/day. Out of which she pays some commission to police constable of the police station in this area. She has 15 member family out of 3 others are contributing in the family income. Even then also the total income is not enough to feed the whole family. Since she is not educated, she’s not aware of present laws and because of that sometimes municipality Officers and policemen take undue advantage of it and charge her penalty or fine. She has to provide products on credit to her regular customer who includes labours, peons, taxi drivers, which is even not certain whether she’ll get back her money or will become bad debts.

At last after interviewing these street vendors we can derive conclusion that most part of their income is taken away from them through extortion. The balance is not sufficient for their livelihood.

Legal aspects:

Supreme Court on street vendors

In PYARELAL v. N.D.M.C. case the court said no person has fundamental right to carry on street trading on a public street. The court went so far as to say that no exception could be taken to N.D.M.C. exercise of power to “eradicate the evil”. Thus this case shows that claiming a fundamental right to carry on street trading is wrong path to tread on and this argument is torn apart easily. The strong words used by the courts (“eradicate the evil”) are basically a rebound to that argument.

The Supreme Court in the case of M.A. PAL MOHAMMAD V. R.K. SDARANAGAM has held that the hawker trade, so long as it is regulated in a proper manner could never be a public nuisance. The court has observed that if regulatory measures were introduce, bearing in mind the requirements of the public of free access, hygiene, safety etc., it would benefit both the hawkers and the public at large. If specific plots are allotted and they are confined to those portions, there could be no conceivable objection for such a trade to be carried out, especially when it would provide an honest livelihood for those who have meager capital but desire to carry on trade. The main issue in most of these cases was whether restrictions on hawking was violative of Article 19(1) g of the Constitution which gives the right to carry on any trade or business. This is however subject to sub-clause b) which to impose reasonable restrictions in interests of the general public. In the case of BOMBAY HAWKERS UNION V. BOMBAY MUNICIPAL CORPORATION the Court has referred to a list of recommendations relating to restrictions on hawkers. These include identifying Hawking zones: prohibiting handcarts, any form of permanent structure including tarpaulins, cloth or plastic sheets; restrictions on timings, noise, prohibiting sale of cooked food articles and cut fruits and a precondition that the hawkers should extend full cooperation to Municipal workers as fare as cleaning the streets and managing public agencies are concerned.

Though the judgment of this court in OLGA TELLIS v. BOMBAY MUNICIPAL CORPORATION is not directly relevant as in, it actually deals with the slum dwellers, the observations made by the court regarding the forcible eviction, right to livelihood, etc. would have definite impact on the hawkers and vendors as well. The court held that eviction would lead to deprivation of livelihood and thus deprivation of life. It went on to say further that no person has the right to encroach on footpaths, pavements or any other place earmarked for a public purpose. Thus it says that forcible eviction is not unreasonable, but that it must be according to procedure established by the law. It says, “Procedure prescribed by the law for depriving a person of his right to life must conform to the norms of justice and fair play”. Thus the importance of this judgment lies in the fact that it recognizes that eviction affects the right of life and livelihood of poor people and thus the procedure followed such as a notice has to be necessarily served unless there are extreme circumstances. Despite this the court still failed to the needful. As it failed to curb the discretionary powers of the Commissioner to serve notice.

In the case of SODAN SINGH v. NDMC this court held that Right to carry on trade is not part of Article 21 but Article 19 (1) (g) and can be reasonably restricted under Article 19(6). Hawking on roadsides falls within the “occupation, trade or business” in Article 19(1) (g). All streets and roads are vested in the state but it holds it as a trustee and the members of the public are beneficiaries entitled to use it as a right. Therefore the municipality has full authority to permit hawkers and squatters on the sidewalk wherever at the municipality considers it convenient under the municipalities Act. But there cannot be a fundamental right vested in a citizen to occupy any place on the pavement where he can engage in trading business. Nor can the hawkers assert a fundamental right to occupy a particular place permanently on the pavement. If the circumstances are appropriate and a small trader can do some business for the personal gain on the pavement to the advantage of the general public and without any discomfort or annoyance to others, there can be no objection. Hawkers cannot be permitted to squat on every road. Factors like the width of the road, security etc. has to be considered. Licenses must be granted periodically but not daily.

In the case of MUNICIPAL CORP. OF DELHI v. GURNAM KUAR the municipal corporation said that it could evict the hawkers if the due procedure of the law is followed and that there was no binding obligation on their part to provide alternate arrangement. The court affirmed this android that the principle of Jamaica Das could not be applied. The obiter dicta was also not binding and moreover in that case the judgment was passed by the consent of the parties.

In GAINDA RAM v. MCD case court looked into some of the recommendations of the Thareja committee regarding allotment of sites. The main grievance of the hawkers is that MCD committee is allocating space on the proximity from the residence basis which rendered their right redundant. The court held that the committee should obtain the preference of the zones from the hawkers where they would like to be accommodated and then suit their purpose as far as possible without increasing the number of slots in one zone.

The Apex court, however, said a hawker’s fundamental right to do business on a public street was subject to reasonable restrictions under Article 19(6) of the Constitution. Noting that the housing and urban poverty alleviation ministry had already drafted a Model Street Vendors (Protection of Livelihood and Regulation of Street Vending) Bill 2009, the court said the appropriate government should take steps to translate the bill into law. It was also made clear that until such a law is enacted, hawkers must go by the rules framed by municipal bodies and approved by the Supreme Court.

 

Features of the National Policy, 2009

The National Policy recognizes street vending as an integral part of the urban retail trade and distribution system. It aims at giving street vendors a legal status. Each street vendor will be registered under the supervision of a Town Vending Committee (TVC), headed by the respective municipal commissioner, and given an identity card with a code number and category. The National Policy recommends that the municipal authorities in the cities provide for the street vendors a range of civic services such as provisions for solid waste disposal, public toilets, electricity, water, and storage facilities. In exchange, the TVCs will collect a registration fee and a monthly maintenance charge, depending on the location and type of business of the vendor.

Other important initiatives under the National Policy include providing access to credit, skill development, housing and capacity building, health care benefits, and pension schemes for street vendors. However, if compared with the draft policy of 2004, the revised document of 2009 makes a significant omission with regard to the protection of street vendors from the existing repressive Municipal laws.

The National Policy, 2009 introduces three zonal categories, namely, “Restriction-free Vending Zones,” “Restricted Vending Zones,” and “No-Vending Zones.” These are central to many other key elements of the policy such as the pivotal function of the TVCs, the process of registration and record-making, and the modalities of eviction. The National Policy declares that one of the pivotal functions of the TVCs will be to come up with city-specific zoning laws on the basis of consensus among stakeholders. In demarcating vending zones, the TVCs will maintain a proper balance between the usable space and the number of vendors without compromising the issues of traffic, public health, and environment. For this, a digitized demographic database (archive) will be created in each city by trained professionals on street vendors. This will also help the TVCs to issue registration certificates, identify the trespassers, curb spatial and other aberrations, collect taxes, provide civic facilities, and introduce welfare schemes. This means that at least in the context of the National Policy, legalization involves the privileging of some activities as legitimate and branding of some others as illegitimate, deserving punishment and eviction. What makes street vending simultaneously legitimate and illegitimate? It is again predominantly the spatial laws, a certain obedience to it makes street vending a constitutionally guaranteed right of the poor to eke out a living, while a violation of it leads to fines, confiscation, and eviction.

The Union Cabinet in 2010 approved the proposal by the Ministry of Labour and Employment for extending the insurance scheme under Rashtriya Swasthya Bima Yojna (RSBY) to street vendors whose number according to a 2001 report is over 42lakhs. RSBY presently covers BPL families only. Street vendors will now enjoy the benefits of cashless-based health insurance scheme. The government proposed to cover all registered street vendor under RSBY by 2013-14. The cover extends to 5 member of the family, which includes the head of the household, spouse and up to 3 dependents. According to the labour and Employment Ministry, till October 15, 2010, 27 states were in the process of implementing the scheme. The scheme has been operationalised in 24 states with more than 1.95 Crore smart cards having been issued to more than 7 Crore persons.”

 

Analysis of the status of the profession and of the workers;

Social Status:- Every social system must cater to the needs of its members to enable them to survive; it must have effective means of allocating and distributing resources. The vendors provide a wide array of goods and commodities to the urban populace at reasonable prices and convenient locations. The type of goods they sell makes an interesting study – from daily needs like vegetables, fruits, fish, meat and snacks to occasional needs like flowers and readymade garments. A survey conducted by the Indian Institute of Health and Hygiene counted 300 types of eatables sold by the hawkers of Calcutta. It would be hard to find an urban Indian who doesn’t purchase something from a vendor. The middle and lower class consumer specifically prefers to purchase from them, though even well-off citizens purchase many commodities given reasonable prices. Vending has been a profession since time immemorial, with street vendors an integral part of our urban history and culture. Shopping and marketing, in a traditional Indian sense, has primarily been informal. Social interaction is integral to Indian markets in contrast to the mechanized and sterile concept of shopping favored by modern market and super market structures. Socially not only street vendors but also the regular customers get attached with each other. Even the customer prefers buying from their regular vendor. Out of this social relation sometimes they provide their goods on credit also.

Economic Status:-In India, studies show that 29% of the population generates 60% of the GDP. The larger part of which is from age group of 16-35 years. A normal day of a vendor starts early in the morning with the day to day purchase. The marketing place is invariably far from his residence. Bringing large sacks of goods loading & unloading them again in a rickshaw cart is a tedious job. Arranging, cleaning, sorting, weighing and dealing with customers is not easy. Hawkers are on the move from one lane to another irrespective of the heat, wind, rain and cold. Calling out loud to attract buyers, consumes time and energy.

Many studies indicate that the informal or unorganized sector accounts for close to 90% of the workforce in India. Majority of Indian’s are self-employed. In case of the street vendors, they account for more than 10 million of the workforce. Many of the street vendors in Mumbai today are actually the mill-workers who lost their jobs after the mills were closed down or either who earlier worked in factories and industrial units but lost their jobs after the liberalization process started. Talk to any street vendor in any city and you will find that some of them in fact have been street vendors since two or three generations.

Cultural Status:- Street vending is the oldest means of earning livelihood. It started with the inception of civilization, where people started exchanging goods with either goods or service, the process is commonly known as ‘Barter System’. The street vendors during that period were more of mobile nature. They also started evolving with the human beings and later both mobile & stationery form of street vendors came into practice. The same is still followed. Our street vendors, all 10 million or more of them, are part of the colour of India. They provide the magical allure, the sights, the smells and the sounds that have inspired zillions of foreign writers to India. They produce the colour of the East, which countless Hollywood and Bollywood directors have used as backdrops. They are in every ‘Raj’ film and book, and we make use of them when we make ‘Incredible India’ ad films to draw tourists and big bucks into our country.

 

Analysis of National Policy on Urban Street Vendors, 2009;

While most of the states agreed to bring the street vendors in the fold of some sort of social security mechanism, they differed in defining the non-vending zones and in determining the composition of the TVCs. Much of current discussions on the National Policy in the policy and activist circles in the last couple of years have been centered on two important issues. First, many street vendors associations have questioned the limited possibilities of stake-holder participation in the TVCs that are, in many states, heavily populated by high level state executives. Second, concerned activist groups have also questioned the city specific legal frameworks under which any street vendor policy is to work. In the state of West Bengal, for example, street vendors are implicated in the repressive Municipal Corporation Act (1951 and 1997). Section 371 declares that street vending is a non bailable and cognizable offense. Recently, the National Advisory Council (NAC) came up with a “Note on Recommendations for a Central Law for Protection of Livelihood Rights and Social Security of Street Vendors.” The NAC’s note aptly pointed out that in order to implement the National Policy, 2009, the existing legal provisions under the Indian Penal Code and other municipal laws in various cities would have to be amended in favor of street vendors.

The National Policy does not provide a guideline for the states to handle surplus labor force in the sector. For this reason, the National Policy should be linked with a larger employment generation scheme led by the state. Again, in the absence of any clearly specified law safeguarding the vendors, the implementation of spatial restrictions and the registration mechanism will give the governments an informal flexibility to favor powerful lobbies and local-level regime functionaries. This may cause a series of brutal internal displacements.

The draft of the National Policy was more spatial than social. It does not, for example, pay attention to the internal hierarchies within the street vending sector. It does ensure that more than 40 percent of the members of TVCs are from the street vendors associations. But, it remains silent on the fact that only a meager proportion of street vendors in India fall under the fold of unions. Who will represent such a large number of non-unionized street vendors in the TVCs? The National Policy, then, seeks to institutionalize a certain form of participatory exclusion.

For e.g. In 2010, the state of West Bengal came up with the “West Bengal Street Vendor Policy” that proposes to declare the one hundred meter radius of all busy street crossings in the city of Kolkata as non-vending zones along with the immediate vicinities of hospitals, schools, colleges, offices, and heritage buildings. It is arguable that such a statement in the policy document deserves close analysis and strong public debate. The idea of a non-vending zone is premised only on the perceived connection between street vendors and traffic congestion in the street crossings. The argument is that since street vendors concentrate only at the crossings, pedestrians feel obstructed and they leave safe and secure pavements to walk on the streets. As a result, they become vulnerable to accidents and their movement impedes vehicular traffic. Pedestrians walking on the streets also show greater propensity to cross roads, ignoring traffic rules. The panacea to this impasse in urban life is to declare pavement hawking illegal near densely populated crossings and transit centers. The National Policy seems to lack the common sense that it is congestion and density of human activities that cause street vendors’ presence in the proximity of crossroads and not the other way around. In fact, during a field survey in twenty-two earmarked crossings in Kolkata for non-vending zones, organized by the Urban Research and Policy Program (URPP) of the National Institute of Advanced Studies (NIAS), pavement vendors were observed to have played a marginal role in causing congestion. It was additionally observed that the presence of several other factors unrelated to street vending such as car parking areas in the vicinity of the crossing, auto rickshaw stands, road repair works, narrow road and pavement spaces compared to the extent of traffic, existing retail shops encroaching pavement spaces, and instinctive violation of traffic rules by pedestrians and automobiles caused states of anarchy in the surroundings of the crossings.

Suggestions:

Indian authorities can learn from their Malaysian counterparts in Kuala Lumpur about how to include street vending in the process of urban planning. For example, Kuala Lumpur’s proposal of making food courts compulsory in high-rise buildings can be a good way for our authorities to emulate in leading the vendors towards a legal status and offering them a permanent space to sell.

In addition, the police should be given better training and better pay packets, along with establishing effective accountability in their functioning, if they are to act as an instrument of law and order, rather than promote crime. They, too, need help in restoring their self respect, so that they do not behave like thugs and looters. Its urged that local associations to join the vendors to form Nagrik Sahyog Samitis to curb the abuse of power by police and bring municipal officials to account. Instead of treating them as a “public nuisance”, services of vendors should be given due recognition.

A group in IIT Delhi has studied the space requirement for Delhi’s vendors and found that all the existing vendors can be easily accommodated in the available space, provided the city authorities are willing to plan space allocation in an efficient and rational manner. If workable, this approach could be used to transform the street vending scene in other urban centres including Mumbai as well.

With the coming of Departmental store trend/pattern in India, has obviously benefitted the Indian economy, specifically middle class family but at the same time eaten up the major part of the income of Street vendor. In order to safe guard the income of street vendors, government should restrict the sale of particulars goods and reserve them only for street vendors. So as to keep both the fields operative and productive.

Conclusion:

The informal sector, and within this sector the role of street vendors, is an economically significant one. For too long have these performers have been denied of their rightful place in the sun. Street vending must get the dignity it deserves for the role it has in keeping the cycle of our local economy moving. It is an engine and the only one of wealth creation that is available for India’s poor yet agile millions. And it is high time that our planners do something concrete so that these vital contributors of Indian economy can go about their work without the fear or insecurity of suffering extortion and abuse. Generally speaking, street vendor’s legal status can act as a bridge between their employment conditions and the range of employment risks they face. A vendor with a fixed structure in a designated market, for example, may be more likely to hold a license or permit, and in turn would be less exposed to certain kinds of risks. Likewise, a street vendor who works as an employee selling a particular kind of product, such as newspapers, may be better protected by law and therefore less vulnerable. Obtaining legal status of some kind is therefore a key demand of street trading organizations in many cities.

“Cities have the capability of providing something for everybody, only because, and only when, they are created by everybody.”

 

BIBLIOGRAPHY

• Oberay A. and Chadaw G., (2001) Urban Informal Sector in India, Issues and Policy Options.

• Jacobs Jane, (1961) The Death and Life of Great American Cities.

• www.karmyog.org

• www.southasia.oneworld.net

• www.manushi-india.org

• www.nac.nic.in

• www.mhupa.gov.in/

• www.wiego.org/

• www.india-seminar.com/

• www.infochangeindia.org/

• www.wbdma.gov.in/HTM/MUNI_street_vendor.htm

• www.stumblingandmumbling.typepad.com

• www.rru.worldbank.org/Documents/PapersLinks/Sida.pdf

• www.readersquotient.com/india/urban-space-battleground-for-street-vendors-and-municipalities

• www.unstats.un.org/unsd/ (United Nations Service Trade Database)

• www.ebookfreetoday.com

• www.timesofindia.indiatimes.com

• www.economictimes.indiatimes.com

• www.indianexpress.com

• www.nac.nic.in

• www.manupatra.com

• www.fao.org

• www.wbdma.gov.in/PDF/street_policy_2009_WB.PDF

• www.indiankannon.org

• www.en.wikipedia.org

• The Hindu –Business Line, September 28, 2011.

• Geetam Tiwari, ‘Encroachers or Service Providers?’ Seminar (New Delhi) No 491, July 31, 2000.

 

Right to Information Act 2005

An Act to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority, the constitution of a Central Information Commission and State Information Commissions and for matters connected therewith or incidental thereto.

Whereas the Constitution of India has established Democratic Republic;

And whereas democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed;

And whereas revelation of information in actual practice is likely to conflict with other public interests including efficient operations of the Governments, optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information;

And whereas it is necessary to harmonize these conflicting interests while preserving the paramountcy of the democratic ideal;

Now, therefore, it is expedient to provide for furnishing certain information to citizens who desire to have it.

The Right to Information Bill was introduced in the Lok Sabha in December 2004. It was passed by both the houses of Parliament in May 2005. The assent of the President was received on 15th June and the Act was notified in ‘The Gazette of India ‘on 21st June, 2005. The Right to Information Act will become operational by the 12th October 2005. The Freedom of Information Act passed by the Parliament in 2002 has been repealed.

The Right to Information Act (RTI Act) shall cover all the establishments as defined under Article 12 of the Indian Constitution (‘Sarbajit Roy Vs. DERC’ 30/11/2006) unless until expressly exempted by the RTI Act 2005.

{ State as provided under Article 12 of the Constitution has four components:

( a ) The Government and Parliament of India- Government means any department or institution of department. Parliament shall consist of the President, the House of People and Council of State.

( b ) The Government and Legislature of each State- State Legislatures of each State consist of the Governor, Legislative Council and Legislative Assembly or any of them.

( c ) Local Authorities within the territory of India- Authority means.

( i ) Power to make rules, bye- laws, regulations, notifications and statutory orders.

( ii ) Power to enforce them.

Local Authority means Municipal Boards, Panchayat, Body of Port Commissioners and others legally entitled to or entrusted by the government, municipal or local fund.

( d ) Other Authorities

Authorities other than local authorities working

( i ) Within the territory of India or;

( ii ) Outside the territory of India.}

More specifically it includes all levels of government Centre, State, district and local self governing bodies like Panchayat and Municipal bodies. It will also cover non-governmental organizations- i.e. NGOs and other private bodies- that are financed substantially with public finds provided by the Government. This means every citizen has the right to put in an application requesting information or copies of records held by these bodies and such information should be given by the concerned body.

 

The citizens’ right to information is not explicitly mentioned in the fundamental rights chapter of the Constitution. But in many cases the Supreme Court of India has declared that the fundamental right to life and liberty [Art.21] and the fundamental right to freedom of speech and expression [Art.19 (1)] include every citizen’s fundamental right to access information. Parliament passed the RTI Act to enable all citizens to use their fundamental right to access information from public bodies.

 

The main objectives of the RTI Act are –

  •  To promote transparency and accountability in the working of every public authority and,
  •  To set up a practical regime for giving citizens access to information that is under the control of public authorities.
  •  To project the policies and programs of the Government to the people and to inform them about the plans and schemes formulated for their benefit.
  • To educate the people about the fundamental national values, like democracy, socialism and secularism and to reinforce their faith in them through constant personal contacts.
  • To establish rapport with the people at the grass root level for their active participation in the developmental activities, as also to mobilize public opinion in favour of implementation of welfare and developmental programs.
  • To gather people’s reactions on the programs and policies of the Government and their implementation and to report them back for appropriate and corrective action by the Government. The Directorate thus acts as two-way channel of communication between the Government and the people.
  • As a step to proactively disclose required information regarding the duties and day-to-day functioning of every establishment coming under the Right to Information Act a Information Manual has to prepared in line with the provision of Sec. 4 in the RTI Act 2005 and where in there is no separate Manual prepared under Section 4 of the RTI Act 2005, then the main RTI Act shall be applicable to that establishment.
  • The main objective of the manual is to proactively publish to the maximum extent of information that will be of interest to the common people so that the need for requesting information becomes minimal. This is in accordance to Sec.4 of RTI Act 2005.
  • This proactive disclosure of information is aimed at providing to the common people the kinds of information that common people; ordinarily seek while approaching the different offices of the Board.
  • With a view to providing adequate information to the common people easily, categories of information are listed and the same is disclosed in the manual so as to bring down to a minimum their need for seeking information through applications.
  • The information contained in these manuals is intended for the convenience of the common people who desire for information relating to the functioning, duties and performance. Important information is made accessible for the public though the manual.

The Act specifies that citizens have a right to:

• request any information (as defined).

• obtain copies of documents.

• inspect documents, works and records.

• take certified samples of materials of work.

• obtain information in form of diskettes, floppies, tapes, video cassettes ‘or in any other electronic mode’ or through printouts.

Under the Act, all authorities covered must appoint their Public Information Officer (PIO). Any person may submit a request to the PIO for information in writing. It is the PIO’s obligation to provide information to citizens of India who request information under the Act. If the request pertains to another public authority (in whole or part) it is the PIO’s responsibility to transfer/forward the concerned portions of the request to a PIO of the other within 5 days. In addition, every public authority is required to designate Assistant Public Information Officers (APIOs) to receive RTI requests and appeals for forwarding to the PIOs of their public authority. The applicant is not required to disclose any information or reasons other than his name and contact particulars to seek the information.

The Act specifies time limits for replying to the request.

• If the request has been made to the PIO, the reply is to be given within 30 days of receipt.

• If the request has been made to an APIO, the reply is to be given within 35 days of receipt.

• If the PIO transfers the request to another public authority (better concerned with the information requested), the time allowed to reply is 30 days but computed from the day after it is received by the PIO of the transferee authority.

• Information concerning corruption and Human Rights violations by scheduled Security agencies (those listed in the Second Schedule to the Act) is to be provided within 45 days but with the prior approval of the Central Information Commission.

• However, if life or liberty of any person is involved, the PIO is expected to reply within 48 hours.

Since the information is to be paid for, the reply of the PIO is necessarily limited to either denying the request (in whole or part) and/or providing a computation of “further fees”. The time between the reply of the PIO and the time taken to deposit the further fees for information is excluded from the time allowed.

If information is not provided within this period, it is treated as deemed refusal. Refusal with or without reasons may be ground for appeal or complaint. Further, information not provided in the times prescribed is to be provided free of charge.

For Central Departments as of 2006, there is a fee of Rs.10/- for filing the request, Rs.2/- per page of information and Rs.5/- for each hour of inspection after the first hour. If the applicant is a Below Poverty Card holder, then no fee shall apply. Such BPL Card holders have to provide a copy of their BPL card along with their application to the Public Authority. States Government and High Courts fix their own rules.

The Act specifies the appeal to the request not provided. (Section 18 &19)

It shall be the duty of the Central Information Commission or State Information Commission, as the case may be, to receive and inquire into a complaint from any person,— who has been unable to submit a request to a Central Public Information Officer or State Public Information Officer, as the case may be, either by reason that no such officer has been appointed under this Act, or because the Central Assistant Public Information Officer or State Assistant Public Information Officer, as the case may be, has refused to accept his or her application for information or appeal under this Act for forwarding the same to the Central Public Information Officer or State Public Information Officer or senior officer specified in sub-section (1) of section 19 or the Central Information Commission or the State Information Commission, as the case may be

who has been unable to submit a request to a Central Public Information Officer or State Public Information Officer, as the case may be, either by reason that no such officer has been appointed under this Act, or because the Central Assistant Public Information Officer or State Assistant Public Information Officer, as the case may be, has refused to accept his or her application for information or appeal under this Act for forwarding the same to the Central Public Information Officer or State Public Information Officer or senior officer specified in sub-section (1) of section 19 or the Central Information Commission or the State Information Commission, as the case may be;

  • who has been refused access to any information requested under this Act;
  •  who has not been given a response to a request for information or access to information within the time limit specified under this Act;
  •  who has been required to pay an amount of fee which he or she considers unreasonable
  •  who believes that he or she has been given incomplete, misleading or false information under this Act; and
  •  Where the Central Information Commission or State Information Commission, as the case may be, is satisfied that there are reasonable grounds to inquire into the matter, it may initiate an inquiry in respect thereof.
  •  The Central Information Commission or State Information Commission, as the case may be, shall, while inquiring into any matter under this section, have the same powers as are vested in a civil court while trying a suit under the Code of Civil Procedure, 1908
  •  If the Information is not received by a person with in the time prescribes as mentioned above an appeal can be preferred to the appellate authority and the Appellate authority will be a senior person in rank of the same department with 30 days from the date of actual date of receiving information, The Appellate authority may receive the appeal even after 30 days if it is satisfied the delay was not deliberate (Section 19).
  •  If the Appellate authority is of the opinion that the PIO as the case may be, has, without any reasonable cause, refused to receive an application for information or has not furnished information within the time specified under sub-section (1) of section 7 or malafidely denied the request for information or knowingly given incorrect, incomplete or misleading information or destroyed information which was the subject of the request or obstructed in any manner in furnishing the information, it shall impose a penalty of two hundred and fifty rupees each day till application is received or information is furnished, so however, the total amount of such penalty shall not exceed twenty-five thousand rupees.

The Act specifies Exclusions to the request.

Central Intelligence and Security agencies specified in the Second Schedule like IB, RAW, Central Bureau of Investigation (CBI), Directorate of Revenue Intelligence, Central Economic Intelligence Bureau, Directorate of Enforcement, Narcotics Control Bureau, Aviation Research Centre, Special Frontier Force, BSF, CRPF, ITBP, CISF, NSG, Assam Rifles, Special Service Bureau, Special Branch (CID), Andaman and Nicobar, The Crime Branch-CID-CB, Dadra and Nagar Haveli and Special Branch, Lakshadweep Police. Agencies specified by the State Governments through a Notification will also be excluded. The exclusion, however, is not absolute and these organizations have an obligation to provide information pertaining to allegations of corruption and human rights violations. Further, information relating to allegations of human rights violation could be given but only with the approval of the Central or State Information Commission

The following is exempt from disclosure [S.8)]

• Information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, “strategic, scientific or economic” interests of the State, relation with foreign State or lead to incitement of an offense;

• Information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court;

• Information, the disclosure of which would cause a breach of privilege of Parliament or the State Legislature;

• Information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information;

• Information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information;

• Information received in confidence from foreign Government;

• Information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes;

• Information which would impede the process of investigation or apprehension or prosecution of offenders;

• Cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers;

• Information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual (but it is also provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied by this exemption);

• Notwithstanding any of the exemptions listed above, a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. (NB: This provision is qualified by the proviso to sub-section 11(1) of the Act which exempts disclosure of “trade or commercial secrets protected by law” under this clause when read along with 8(1)(d))

Role of the government

Section 26 of the Act enjoins the central government, as also the state governments of the Union of India (excluding J&K), to initiate necessary steps to:

• Develop educational programs for the public especially disadvantaged communities on RTI.

• Encourage Public Authorities to participate in the development and organization of such programs.

• Promote timely dissemination of accurate information to the public.

• Train officers and develop training materials.

• Compile and disseminate a User Guide for the public in the respective official language.

• Publish names, designation postal addresses and contact details of PIOs and other information such as notices regarding fees to be paid, remedies available in law if request is rejected etc.

Privacy Legislation And Its Value In India

Mahantesh b Madiwalar

Guided by Dr.B S Reddy

In new technology era information is more valuable than any other thing. “Governmental and non Governmental bodies hold wast quantity of information about individuals” to maintain and regulation of these information, and also pass it to others for use has been the subject matter of new legislation guidelines over many years.

In the concept of Global village internet in India is new boom in all fields. Like education, medicine and engineering and service sector. In the area of information technology Indian professionals have made themselves a reputation through their hard work, dedication, and commitment. In the present situation development in one field is always impact on different sector like commerce, industry and real estate.

Increasing in use of internet and its use in these sectors proved that internet is necessary for growth of development and information is nothing but ‘meaningful data’ data are building blocks and information is finished house. Brief history of data protection legislation

In the age of 1970 the first data protection Act was enacted in the Germen State Hysse. The misuse of records under Nazi’s regime had raised concerns among the public about the use of computer to store and process large amount of personal data. it signifies how public information is misused. In the age of 1973, the Sweden Nation introduced the statute. The U K Government was concerned at the impact that the council of Europe Conventions would have on business, and wanted to ensure that the UK met international standards to enable data the transferred. It introduced a bill in 1982 which became the data protection Act 1984. In 1995 the European Union adopted its directive on the protection individuals with regard to the processing of personal data and on the free moment of such data. In order to meet the EU “adequacy” standards. U S developed a ‘Safe Harbor’ frame work, according to which the U S companies that have self certified to the Safe Harbor frame work.

In Indian Territory the private data information is under control of the Information Technology law 2000. The law defines ‘Data’ it means representation of information, knowledge, facts and concepts. Or instructions which are being processed in a formalised manner, is intended to be processed in computer network or stored internally in the memory of computer.

In the present scenario data information provisions affects within the territory of India under Section 43A and 72A of Information Technology Law and outsourced data information will be protected under these provisions, and out soured data information will not be protected under these provisions because India is have no jurisdictions in the same way other countries have obligation to protect our data information.

The Information Technology Law of 2008(amendment) has a lot of lacuna of data privacy laws in India. The provisions of Information Technology law are not to meet the Corporate India. By this Information Technology and Business Process Out Sourcing (BPO) sectors have handle and access personal information of individuals through the world, including their credit card details and financial information and medical history, these information often misused by employers of these company. “There have been instances of security breaches and data leakages in high profile Indian companies. These recent incidents of data thefts in the BPO industry raised concern about data privacy.

Adequacy of law

With the globalisation and increasing in BPO sectors data legislation is necessary because these BPO companies without prior consent they have given away the personal information of customers to third parties Ex: BPO frauds in India includes New York based City Bank accounts being looted from BPO in Pune and Call-Centre employee in Bangalore peddling credit card information to fraudster who stole US $ 398,000 from British Bank accounts.

The right to privacy as an independent as an distinctive concept originated in the field of Tort law. Now the right to privacy is a part of constitution under Article 21 of Constitution of India.

Privacy is the claim of individuals, groups institutions to determine for themselves when, how and what extent information about them is communicated to others. Right to privacy is more or an implied obligation. It is right to let alone.

Now India is facing new challenges in telemarketing field. This is facilitated, to a large extent, by the widespread use of telephones, by this method personal information is used for companies business work. There is a violation of privacy caused by such calls who, behalf of banks, mobile phone companies, financial companies etc offers varies schemes.

Cross border exchange of details are also misused by other countries. With the advent of Information Technology the traditional concept of right to privacy has taken new dimensions. Which require a different legal outlook?

 

Conclusion

In the modern situation the Data Privacy legislation faces new challenges in India, there is lot of cyber crimes, and data theft is happening more, and also the main cause of this situations is there is lack of good legislation. To overcome this situation India needs a better law to protect and meet with expectations both legal and public nature. “In the recent e-surveillance projects like Adhar/UID, National intelligence grid(Natgrid), crime and criminal tracking networks and system (CCTNS), central monitoring system (CMS)etc are not supported by any legal framework” these creates in India personal information is highly vulnerable to misuse, our privacy is fundamental right.

For this back ground I would like to come to the conclusion that in present situation India badly need data privacy legislation

Rape: A Curse On Women Soul

 Neha Malik

“Rape is highly reprehensible, both in a moral sense and in is almost total contempt for the person integrity and autonomy of female victim and for the latter’s privilege of choosing those with whom intimate relations are to be established”

Byron R. White J., the Supreme Court , United States of America

Women the most beautiful creation of god, in India people even worship girls made reservation to give them equal status but does women get equal treatment? Are they really treated equally?

A story of Bandit Queen depicting the scenario of male dominant society of India. Initially not a dacoit but a simple village girl who got exposed to the unrivaled truth of the Indian society, Phoolan Devi started her journey to become the Bandit Queen. She was married to a man double of her age. She was beaten and rape by him. Later she was thrown out of the village-accused of luring boys of the upper caste. She was arrested by the police and subjected to indignation and humiliation. Was also kidnapped and raped by the leader of dacoits and later by the leader of a gang of Thakurs- who striped her naked and paraded her in front of the entire village. This is truly one story that shows the apathy of the existing society.

Introduction

In the present article the author is going to discuss about the statutory definition about the rape and its interpretation, few judgments which are going to help in understanding the law in practice. The author is also going to discuss about the social obstacles in dealing with such a sensitive issue.

Defining ‘RAPE’

Rape in dictionary defines as the crime of forcing a woman to submit to sexual intercourse against her will. In India, rape is defined in the following manner;

“a man is said to commit ‘rape’ who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:-

A. Against her will.

B. Without her consent.

C. With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

D. With her consent, when the man knows that is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

E. With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

F. With or without her consent, when she is under sixteen year of age.”

 

The only exception to this rule is that sexual intercourse by a man with his wife, the wife not being under fifteen years of age. From the above provided definition, it is clear that under which circumstances a sexual intercourse will amount to rape. The essential ingredients of the offence of rape:

1. There must be a sexual intercourse with a woman by a man

2. Such a sexual intercourse should be done under any of the above circumstance

Sexual intercourse means penetration of male organ into that of female. To explain Section 375, the Supreme Court through its various judgments made it clear that even slightest or partial penetration of the male organ within the labia majora or the vulva or pudenda is sufficient to constitute ‘sexual intercourse’ . The court in other cases also said that the depth of penetration is immaterial . The slightest degree of penetration is enough . Penetration, not ejaculation, is the sine non qua for the offence of rape . Therefore to prove that a rape is committed it is not necessary to prove completion of sexual intercourse by the emission of seed. Even the partial penetration is enough to attract section 375.

 

Judicial approach towards ‘rape’

The famous Mathura rape case , which led to the amendment of the law. The Criminal Law Amendment Act, 1983 has made a statutory provision in the face of Section.114 (A) of the Evidence Act, which states that if the victim says that she did not consent to the sexual intercourse, the Court shall presume that she did not consent. The amendment was required because of the judgment given by the courts in this case. In this case Mathura a sixteen year old girl was raped by two policemen in the compound of Desai Ganj Police station in Chandrapur district of Maharashtra. When case came for hearing in the session’s court the court found the defendants not guilty. It was stated that because Mathura was ‘habituated to sexual intercourse,’ her consent was voluntary; under the circumstances only sexual intercourse could be proved and not rape. On appeal the Nagpur bench of the Bombay High Court set aside the judgment of the Sessions Court, and sentenced the accused to one and five years imprisonment respectively. The Court held that passive submission due to fear induced by serious threats could not be construed as consent or willing sexual intercourse.

 

However, the Supreme Court of India again acquitted the accused policemen. The Supreme Court held that Mathura had raised no alarm; and also that there were no visible marks of injury on her person thereby suggesting no struggle and therefore no rape. In Mohd. Habib v. State , the Delhi High Court acquitted a man who raped a seven year old girl, asserting that there were no marks of injury on his penis. The Court refused to take cognizance of the bite marks on the victim’s person and the fact that she suffered a ruptured hymen on account of the sexual assault. Another classic example of the judicial pronouncements in rape cases is the case of Bhanwari Devi , wherein a judge remarked that the victim could not have been raped since she was a dalit while the accused hailed from an upper caste- who would not stoop to sexual relations with a dalit.

 

In yet another instance of conscience stirring case of Sakina , Sakina- a poor sixteen year old girl from Kerala, who was lured to Ernakulam with the promise of finding her a good job, where she was sold and forced into prostitution. There for eighteen long months she was held captive and raped by clients. Finally she was rescued by the police- acting on a complaint filed by her neighbour. With the help of her parents and an Advocate, Sakina filed a suit in the High Court- giving the names of the upper echelons of the bureaucracy and society of Kerala.

The suit was squashed by the High Court, while observing that it is improbable to believe that a man who desired sex on payment would go to a reluctant woman; and that the version of the victim was not so sacrosanct as to be taken for granted.

Whereas, in State of Punjab Vs. Gurmit Singh , the Supreme Court has advised the lower judiciary, that even if the victim girl is shown to be habituated to sex, the Court should not describe her to be of loose character. The Supreme Court has in the case of State of Maharashtra Vs. Madhukar N. Mardikar , opined

“…the unchastity of a woman does not make her open to any and every person to violate her person as and when he wishes. She is entitled to protect her person if there is an attempt to violate her person against her wish. She is equally entitled to the protection of law. Therefore merely because she is of easy virtue, her evidence cannot be thrown overboard.”

 

Victim remains victim

In the present society where the offences against women are on the rise- when young girls are raped by their doctors, by their close relatives, by presidential guards in broad daylight, the definition of rape need to be wider. Present law does not even recognise marital rape which is increasing in the society. If there is forced penetration of objects and parts of the body into the vagina and anus; and forced oral or anal intercourse than that is not considered as rape.

Adding to this, Section 155(4) of the Evidence Act, which indirectly helps the defence side to make the victim weaker by asking her about past sexual history of her life. In most of the rape cases victim does not have justice because of the poor quality of investigations. The reason behind this is gender bias society and corrupt police officer who even refuse to lodge the FIR against rich and powerful persons of society. The manner in which some courts have interpreted the law or assessed the evidence has often proved to be an obstacle also. Inspite of Supreme Court judgments to the contrary, lower court judges often insist on evidence of physical resistance or marks of injuries to hold that a woman has not consented. A woman’s evidence without corroboration is not considered sufficient. The long time that is taken to complete a rape trial often by allowing senseless adjournments; and the giving of evidence by the victim in the presence of the accused and the harsh cross examination in the Court are some other major obstacles.

As observed by Justice Saghir Ahmad, “Unfortunately a woman in our country belongs to a class or group of society who are in an disadvantaged position on account of several social barriers and impediments and have therefore, been victims of tyranny at the hands of men with whom they, unfortunately, under the Constitution enjoy equal status.”

Conclusion:

After studding the various judgment and laws related to the rape the author came to the conclusion that there is a need to bring change in the courts and legislature. The punishment that is mention in IPC, which normally ranges from one to ten year of rigorous imprisonment with very small fine is not sufficient to stop the increasing crime of rape. If the accused is powerful or rich the case is not even filed against them by the police, if filed then also they get no punishment by paying huge amount of money. The court also need to concentrate on the fact that in some cases the victim is beaten and tortured so badly that they even loss their mental balance. Even the small children who do not even know the meaning of rape are facing this problem. Therefore, in the best interest of society, these criminals should be sentenced to life imprisonment. However, if they truly have realized their mistake and wish to return to society, the Court and jail authorities may leave such men on parole; but only after they have served a minimum of half the sentence imposed on them.

It is clear that sexual offences are increasing day by day, but if death sentence is given to such convicts then no doubt that the graph of rape cases will come down. Studying the laws, the process, the application of the laws, has made one thing very clear that the entire structure of justice needs an over haul, otherwise the victim shall no longer the woman, but HUMANITY.

Difference between FDI and FII

The Foreign investment pertains to those investments which made by the residents of a country in the financial assets and production processes of another country. From country to country its effect varies. It can affect the factor productivity of the recipient country and can also affect the balance of payments. Foreign investment provides a channel through which countries can gain access to foreign capital. It can come in two forms: foreign direct investment (FDI) and foreign institutional investment (FII). Foreign direct investment involves in direct production activities and is also of a medium- to long-term nature. But foreign institutional investment is a short-term investment, mostly in the financial markets. FII, given its short-term nature, can have bidirectional causation with the returns of other domestic financial markets such as money markets, stock markets, and foreign exchange markets. Hence, understanding the determinants of FII is very important for any emerging economy as FII exerts a larger impact on the domestic financial markets in the short run and a real impact in the long run. India, being a capital scarce country, has taken many measures to attract foreign investment since the beginning of reforms in 1991.

In this world, India is the second largest country with a population of over 1 billion people. As a developing country, India’s economy is characterized by wage rates that are significantly lower than those in most developed countries. These two traits combine to make India a natural destination for foreign direct investment (FDI) and foreign institutional investment (FII). Until recently, however, India has attracted only a small share of global foreign direct investment (FDI) and foreign institutional investment (FII), primarily due to government restrictions on foreign involvement in the economy. But beginning in 1991 and accelerating rapidly since 2000, India has liberalized its investment regulations and actively encouraged new foreign investment, a sharp reversal from decades of discouraging economic integration with the global economy.

The world is increasingly becoming interdependent. Goods and services followed by the financial transaction are moving across the borders. In fact, the world has become a borderless world. With the globalization of the various markets, international financial flows have so far been in excess for the goods and services among the trading countries of the world. Of the different types of financial inflows, the foreign direct investment (FDI) and foreign institutional investment (FII)) has played an important role in the process of development of many economies. Further many developing countries consider foreign direct investment (FDI) and foreign institutional investment (FII) as an important element in their development strategy among the various forms of foreign assistance.

Both FDI and FII is related to investment in a foreign country. FDI or Foreign Direct Investment is an investment that a parent company makes in a foreign country. On the contrary, FII or Foreign Institutional Investor is an investment made by an investor in the markets of a foreign nation.

In FII, the companies only need to get registered in the stock exchange to make investments. But FDI is quite different from it as they invest in a foreign nation.

The Foreign Institutional Investor is also known as hot money as the investors have the liberty to sell it and take it back. But in Foreign Direct Investment, this is not possible. In simple words, FII can enter the stock market easily and also withdraw from it easily. But FDI cannot enter and exit that easily. This difference is what makes nations to choose FDI’s more than then FIIs.

FDI is more preferred to the FII as they are considered to be the most beneficial kind of foreign investment for the whole economy.

Foreign Direct Investment only targets a specific enterprise. It aims to increase the enterprises capacity or productivity or change its management control. In an FDI, the capital inflow is translated into additional production. The FII investment flows only into the secondary market. It helps in increasing capital availability in general rather than enhancing the capital of a specific enterprise.

The Foreign Direct Investment is considered to be more stable than Foreign Institutional Investor. FDI not only brings in capital but also helps in good governance practices and better management skills and even technology transfer. Though the Foreign Institutional Investor helps in promoting good governance and improving accounting, it does not come out with any other benefits of the FDI.

While the FDI flows into the primary market, the FII flows into secondary market. While FIIs are short-term investments, the FDI’s are long term.

 

Summary

1. FDI is an investment that a parent company makes in a foreign country. On the contrary, FII is an investment made by an investor in the markets of a foreign nation.

2. FII can enter the stock market easily and also withdraw from it easily. But FDI cannot enter and exit that easily.

3. Foreign Direct Investment targets a specific enterprise. The FII increasing capital availability in general.

4. The Foreign Direct Investment is considered to be more stable than Foreign Institutional Investor

Child Labor -An Enigma,Still Requires Introspection

Adrish Guha Majumder

ABSTRACT

Taking a view of the present scenario of child labor in India, related laws and its shortcomings, the article deals with the subject of child labor which is an enigma now a days in India and in the world scenario. It introduces itself with the definition of child labor, its causes, practice, problems and consequences of the same. It takes into consideration the various measurements taken to curb this problem. It canvasses the legislative, administrative and judicial actions . It briefly explores through the provisions specially for the child welfare, directive principles and the specific child labor laws as a part of the legislative actions .It encompasses the national law commission reports on child labor and the international conventions . It talks about the 11th five year plan enacted to curtail the evils of child labor. It cites the examples of the ILO (international labor organization) reports and views on the concerned topic under administrative actions . As a matter of confirmation and implementation of the laws, the article converse about the previous court cases as a part of the judicial actions. These laws were enacted but unfortunately it is not effective because of the half hearted measures and lack of implementation. It cites various examples where it can be seen that, instead of various measures taken , the problem of child labor is increasing paying no heed to the measures. The law has been lacking in constant work-force and it is very important to combat the main problems that are prevailing now a days and thus it need to be amended and modified according to the situation. The article itself gives some remedies and suggestions to restrain the problem to some extent as possible with the help of law.

 

1. INTRODUCTION

‘Share is no trust more sacred than the one the world holds with children. There is no duty more than ensuring that their rights are respected, that their welfare is protected, that their lines are free from fear and want and that they grow up in peace – Kofi A. Annan

 

i. What is the Importance of child welfare in the present civilized society?

In a layman language, civilized society means a society or a community which is enriched with substantial amount of culture in it. Now this amount of culture , its growth and development depends on the well being of a child. A child is full of vigor and this should be nurtured to get the best benefits. They should be provided with congenial atmosphere around them for their proper growth.

The child is a soul with a being, a nature and capacities of its own , who must be helped to find them , to grow into their maturity, into fullness of physical and vital energy and the utmost breadth, depth and height of its emotional, intellectual and spiritual being; otherwise there cannot be a healthy growth of a nation

It should be ensured that behind the mask of social service or upliftment and evil design of child trafficking is not lurking. It is the duty of the State to ensure a safe roof over an abandoned child

ii. What is child labor?

Generally child labor is the activity they perform ( objectionable) , which exploits them mentally, psychologically, physically. There are no universally accepted definitions of child labor, it varies. According to some social scientists child work is always unobjectionable, suppose a poor child is working in a stationery shop helping the owner, then it is not child labor but if in this case this little child is not paid or has been forced by the owner to do other hectic tasks then the child becomes a child labor. The moment the activity leads to the exploitation of the child resource then it becomes rigidly objectionable. According to U.N conventions child labor means all the activities regarding soldiering and prostitution. But in this case prostitutions is not considered as child labor because these are the utter illegal sources and this is only practiced in case one do not have any other options to choose.

A large number of children work in cottage industries producing carpets, matches, firecrackers, bidis, brassware, diamond, glass, hosiery, hand loomed cloth, embroidery, leather goods, plastic, bangles and sporting goods

iii. Classification of child labor

Child labor can be classified into child labor, street children, bonded children, working children and children for sexual exploitation as given by the 11th five year plan by the national commission for protection for child rights.

A recent state wise figure reveals that Andhra Pradesh topped the list with over 19 lakh child labor followed by Madhya Pradesh, Maharashtra, Uttar Pradesh, Karnataka and Bihar, each accounting for over two lakh

iv. Who is a child?

Like the definition of child labor , child also don’t have a particular precise definition. An universal definition of child was given by the constitution to fit all the situations and the definitions are allowed to vary with the laws, contexts and situations .

International conventions describe ‘child’ as any person who is under 18 years of age.

A child is one who has not completed 15 years of age

‘Child’ means a person who has not completed his fourteen year of age . Again the census also treats persons below the age of fourteen as children. The constitution of india debars a child below the 14 years to be employed in any factory or mine or any hazardous employment. ‘Child’ means a person who, if a male has completed 21 and if a female not completed 18 years .

v. Issues with child labor

Stunted growth for future generation: children are exploited only when they are being forcefully employed to any objectionable tasks. This really hampers the decent growth of the child and thus it do not give the space to build a bright future generation

Effecting human rights: in our legislation there are the constitutive rights of a child. Again in there are certain rights as in human beings are born free, right to life , liberty and security , right to recognition , no one should be subjected to torture or cruel, inhuman or degrading treatment or punishment . Right to survival, right , property , promoting high standards of health and nutrition , mental health should be protected , right to play and leisure

 

Effecting RTE(right to education): In the Indian constitution, article 45 deals with the compulsory education that the state shall Endeavour to provide early childhood care and education for all children until they complete the age of six years. Again in article 46, it deals with the promotion of educational and economic interest of scheduled castes, scheduled tribes and other weaker sections. Clearly, child labor violates the articles concerned.

Other than that the serious consequences are inability to harness human resources, adult unemployment, perpetuation of poverty, increased illiteracy , affecting the health and nutrition of the child, perpetuation of ill-treatment

 

Child trafficking:

In this era child trafficking is at the grass root level, child trafficking is the transportation, transfer, recruitment of children. This is generally done by act of coercion. They are trafficked generally so that the owner can have the work done by them without proper payments. Child labor is a part of the child trafficking.

Due to this, judicial activism has taken some steps to confront child trafficking and thus there was immoral trafficking act 1986. In a certain case, the H’onble High Court of Bombay observed that the traffic in children is not confined only to what larger scale than innocent Members of this House may be aware – in what is known as White Slave traffic, namely, the buying and selling of young women including minor girl for export or import, from one set of countries to another; and their permanent enslavement or servitude to an owner or proprietor of the establishments of commercialized. In addition to this it was held by H’onble Supreme Court that a proper cell be created by Women and Child Welfare Department of the State of Maharashtra in order to rehabilitated victim of trafficking in society and proper vigilance that should be acted upon periodically

In another case it was observed that children, who are being likely to be grossly abused, tortured or sold for the purpose of sexual abuse or illegal acts they will have to be produced before the Child Welfare Committee. Furthermore, the H’onble High Court of Bombay gave directions to state for Rehabilitation these victims of trafficking

Another gross problem of child labor leads to sexual exploitation. This generally happens with the young female child who is treated as mere goods and is transferred to brothels every year and they are only used as the characters of the sex industry prevalent in India. For this immoral trafficking resulting to prostitution there is one law enacted ‘suppression of immoral traffic in women and girls act of 1956(SITA)

This child trafficking problem cannot be restrained in isolation. The judiciary should take some survey about the subject to get the perfect figure of the child trafficking cases happening. it is a pernicious social ill, so it needs very stringent regulation governing it , the government as well as the non-governmental organizations should be a rigid watchdog for the same.

 

LEGISLATIVE MEASURES-

The problems of child labor are prevailing for many years even times before the drafting of the constitution. So the role of constitution as a major part of social justice also very much includes granting justice to the children resulting in the incorporation of some special provisions to ensure justice to the children.

‘Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth’(article 15). But clause (3) of article 15 serves an exception to the respective article. It states that the ‘nothing in this article shall prevent the state from making any special provisions for women and children.

Right to education has been made as a fundamental right (article-21A) by constitution (86th amendment) Act 2002. In this context the court observed that right to basic education is implied by the fundamental right to life (Article 21), when read in conjunction with the directive principle on education (Article 41). The Court held that the parameters of the right must be understood in the context of the Directive Principles of State Policy, including Article 45 which provides that the state is to Endeavour to provide, within a period of ten years from the commencement of the Constitution, for free and compulsory education for all children under the age of 14 . So, the child is also entitled to enjoy all the fundamental rights.

Prohibition of traffic in human beings and forced labor (article 23). Though this article do not talk specifically of children but they are necessarily included because now a days children are the most trafficked . their exploitation results in the violation of the above article.

Prohibition of employment of children in factories(article 24) . no child below the age of 14 years shall be employed to work in any factory or mine or engaged in any other hazardous employment as an additional security ensuring the proper justice to a child. In this context the Supreme Court directed that the employers of children below 14 years must comply with the provisions of the Child Labor (Prohibition and Regulation) Act providing for compensation, employment of their parents / guardians and their education

 

DIRECTIVE PRINCIPLES OF THE STATE POLICY

The underlying principles of the directive principles of the state policy is ‘ to fix certain social and economic goals for immediate attainment by bringing about a non-violent social revolution’ . it is also under the directive principles of the state policy where it has been tried to come into force some provisions in part IV to promote justice and equality in life, also in case of child labor

That the health and strength of workers , men and women , and the tender age of children are not abused and that the citizens are not forced by economic necessity to enter avocations unsuited to their age or strength (article 39e).

That the children are given opportunities and facilities to develop in a healthy manner and conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment (39f). in this context there was a case where the main issue under consideration of this case was relating to welfare measures for laborers working in mining leases. The court laid down comprehensive measures for the rehabilitation and supportive working environment of the laborers working in mine leases

Provision for early childhood care and education to children below the age of six years( article45). Promotion of the educational and economic interests of scheduled castes, scheduled tribes and other weaker sections of the society. (article 46)The children are trafficked and are worst sufferers who belong to these category of people because of the poverty and backwardness they face very often, so this will be effective in facing the problems child labor also.

Duty of the state to raise the level of nutrition and the standard of living and to improve public health (article 47). As this principle is there to effect the better health of the public very much directs towards the better health of a child also, because this is very inevitable in case of children.

 

CHILD LABOR LAWS

THE CHILDREN (PLEDGING OF LABOR) ACT, 1933

extended over all India except Jammu and Kashmir, but after sept1,1971 it has been executed to Jammu and Kashmir also. It brought into light the conditions under which the children worked. It has been very often noticed that the labor of the children is being pledged by their parents in lieu of some benefits, basically economic benefits. main object of this act is to eradicate the evils arising from the pledging of child labor generally done by their parents or employers in lieu of certain loans and advances. After this enactment, any person making such type of agreement should not taken into consideration any more rather than they will be subjected to penalty under this act.

THE EMPLOYMENT OF CHILDREN ACT, 1938

is applied to whole of India. To prevent overtime, unhealthy environment and hazardous employment of children, it was enacted .The act fixed the minimum age at which children work in passengers, goods or mails by rail or in the handling of the goods at dock wharves or quays at 13 years. The act also prohibited employment of children under 15 years of age in occupations connected with the transport of goods passengers or mail on railways. The minimum age for handling goods for stocks was raised from 12 to 14 years which was the age fixed by Indian ports act 1908. The period of rest was to include at least 7 consecutive hours between 10 pm and 7 am, prescribed in it.

CHILD LABOR ( PROHIBITION AND REGULATION) ACT 1986

was actually enacted to regulate the working conditions under which the children work under exploitative conditions. This act prohibited the children from work under the age of 14 years. According to section 3 of the act, it prohibits the children to work in certain occupations and environment as specified in the schedule of banned occupations as per part A of the schedule to this act. Part B of this act has added one more process into the existing list and that is ‘building and construction industry’ all are same as the existed one. There is also some mentioned process where no child is permitted to work as per section 2 of the act. Punishments are also provided by section 14 of this act where there is fine up to twenty thousand in case of any employments contravening section 3 of this act. Any police officer has the right to file a complaint of an offence under this act in any court of competent jurisdiction

FACTORIES ACT, 1948

defines a child as one who has not completed 15 years of age. This is an absolute prohibition of employment of a child who has not completed his fourteenth year. The acts prohibits a child to do certain works as per section 22(2) of the act. Prohibition of a young child in employing or dangerous machines as per section 23 of this act. Prohibition of employment of women and children near cotton openers as per 27 of this act. Provides for token to be supplied by employers and kept by non-adult workers as per section 68. It also provides for certificate granted to an adolescent workman that he is an adult as per section 70. Specific working hours for children as per section 71. Section 75 of this act also empowers the inspectors to require any such person for re-examination by surgeon and he may prohibit the employment.

MINES ACT, 1952

includes the excavations where some obtaining or extraction is going on including all bearing, bore-holes and oil well, all levels of inclined plans in the course or being driven in or adjacent to and belonging to a mine. It strongly prohibits the children to perform this type of work. He/she is only then allowed when they are above 16 years of age and they have a medical certificate of their own which is only valid only for 12 months as per 43 of the act. It also provides working hours for adolescents as per section 44 of this act. It also instructs and empowers inspector to take medical examination of a person employed in a mine if a child or adolescent. Section 68 of this act provides for penalty for employment of children under 18 years of age which contravenes section40 of this act which prohibits the employment of a child under the age of 18 years and the convicted is punishable with fine up to five hundred rupees.

MERCHANT SHIPPING ACT, 1958

prohibits employment of children below 15 years on sea going ships. Here no person(young) should not work as a stoker or trimmer as per section 110. Medical inspection is mandatory as per section 111. It also empowers central government to make rules respecting the employment of young persons. As per section 113 of this act.

APPRENTICE ACT, 1961

is to regulate and control the training undergone by the apprentice in the course of business. As per the act an apprentice is ‘as a person who is undergoing apprenticeship training in a designated trade in pursuance of control of apprenticeship’ the act prohibits any person to go internship who is below 14 years of age. In this context, the government has identified 56 trade for the purpose of this act.

BIDI AND CIGAR WORKS (condition of employment) ACT, 1966

also defines a child as a person who has not completed 14 years of age. Section 24 of this act ensures the enforcement of better work conditions for children connected with the manufacturing of cigar and bidi. In this act the children between 14 and 18 years are prohibited to work between 7 pm and 6 am as per section 25 of the act. Section 14 of the act also provided for maintenance of crèches and other facilities for children under the age of six years of female employees. Canteen, first aid, cleaning and ventilation are also incorporated in this act.

MOTOR TRANSPORT WORKERS ACT, 1961

prohibits the children under 15 years of age in any motor transport undertakings. In case of adolescent it also provides for certificate of fitness as per section 23 of this act and it also empowers inspectors to take medical examinations of employed adolescent as per section 24 of this act.

Legislative measures have been also taken to ensure the payment of minimum wages to labor. There are two central laws which impose certain obligations on employers and management in the field of wages. Payment of wages act, 1936 ensures regular and prompt payment of wages to employees and prevents exploitation of wage earner against arbitrary deductions and fines.

The minimum wages act 1948 imposes certain obligations on employers and managers in the field of wages and requires the central and state government to fix a certain minimum amount of wage in certain scheduled employments. The act also seeks to prevent ‘sweated labor’ to prevent the exploitation of employees and secure them in the enjoyment of minimum wages. This act ensures justice to those child labor who are not paid properly under coercive conditions

BONDED LABOR SYSTEM (ABOLITION) ACT, 1976

provides the abolition of bonded labor system with a view to preventing the economic and the physical exploitation of the weaker section of the society. As amended by the bonded labor system act (73 of 1985) section 4 of the act declares abolition of bonded labor system and lays down that the system shall stand abolished and every bonded labor shall on such commencement stand freed and discharged from any obligation to render any bonded labor. Enforcement of bonded labor also made punishable under section 16 with imprisonment for a term which may extend 3 years with fine which may extend to two thousand rupees.

Section 371 of IPC provides against habitual dealing of slaves in case of imports, exports, buys, sells should be punished with life imprisonment or with imprisonment of either description for a term not exceeding ten years and should also be liable for fine.

INTERNATIONAL LABOR ORGANISATION AND CHILD LABOR

ILO (INTERNATIONAL LABOR ORGANISATION) COMBATING CHILD LABOR

The International labor organization was set up in 1919 under the League of Nations and has been playing an important role in combating child labor. Mainly it has been focusing on five main issues like prohibition of child labor, protecting child labor at work, attacking the basic causes of child labor, helping children to adapt to future work, protecting the children of working parents .

The general conference of ILO as WORST FORM OF CHILD LABOR CONVENTION, 1999 considers the need to adopt various instruments so as to combat child labor, Effective elimination of the children working in such conditions and provide for their social rehabilitation, deciding upon some certain proposals with regard to child labor. In article1 it is stated that each member should take immediate effective measures to secure the elimination of child labor. The child shall apply to all persons who is under the age of 18 years (article 2). All forms or similar to slavery, trafficking of children, debt bondage, prostitution of a child, pornographic activities, trafficking of drugs etc. are termed as the worst forms of child labor as per article3. The members should establish and design measures to monitor the implementation of the existed provisions, the action, measures should be in consultation with proper government institutions to make it more relevant and finally the formal ratifications of the conventions should be communicated to director-general of international labor office.

After the widely ratified convention against the worst form of child labor, the ILO has been well equipped to multiple challenges involved by trafficking process. It takes on Special Action Programme to Combat Forced Labor (SAP-FL) and International Programme on the Elimination of Child Labor (IPEC). At that time the main concern of public was the then trafficking of the young female child from Albania, Moldova and Ukraine. The coercion by the traffickers on the female children was really very repulsive, even today also in every parts of the world a stringent investigation can bring into light thousand of these cases regarding child trafficking. One of the benchmark is the forced labor convention no.29 of 1930, this provides a clear definition. Under the convention a forced labor is that ‘all work or services exacted from any person under the menace of penalty and for which the said person has not offered voluntarily’ child labor forms a very major part in violating the human rights. Now a days it is surging rapidly. Even children are trafficked across borders to perform some other kind of work also. There are four major action steps taken by ILO like data collection and analysis, policy development and direct support including educational opportunities, community mobilization and outreach. Community mobilization is very important for proper monitoring the problems, it means community level governance for example in Philippines there are barangays are effective community mobilization only for children. This helps in clear positioning and implementation of plans to combat the problems.

The international labor organizations adopted the minimum age recommendation act, 1973 and have discussed certain elements about the topic. It gives priorities to planning and meeting the needs for children through all the national development policies regarding employment oriented programmes, ensuring better living standards, child allowances, proper educational opportunities. It also speaks about the minimum age that should be fixed in all kind of economic activities. The members should take as their objective to raise the age standard to 16 as per article 2 of the act. The conditions of employments should be measured whether they are satisfied or not. They should keep a watch whether the children are being undergoing through practical training session to keep a very safe and protective environment.

India is a signatory to the Universal declaration of human rights (UDHR), 1948. This is a common standard for all people and nation which comprises of human rights and fundamental freedom. It defines about the right of the human being to born free, equal dignity and rights and the spirit of brotherhood should also be present as per article 1. It speaks about the right to life, liberty, security of a person. Exposure to slavery and servitude shall be strongly prohibited. It is not acceptable for arbitrary detention and exile of any person. One is entitled in full equality to a fair and public hearing by an independent and impartial tribunal according to article 10 of the act. Everyone has the right to protection against any interference against his/her privacy, family or home. He/she has the full right to leave his/her own country and can return also according to the will. Everyone has the right to nationality and no one should be intentionally deprived of the nationality as per article 15 of the act. Everyone has the right to his own property and no one can be deprived of his property as per article 17 of the act. Everyone has the right to freedom of opinion and expression. They have the right to peaceful assembly and association and there should not be any compulsion to belong to an association. There is the right to social security for the members for the same. Including reasonable limitation of working hours and periodic holidays with pay, everyone has the right to rest and leisure as per article 24 of the act. With the adoption of the act, the human rights have been intensely implied for the betterment of all the human beings, specially the children who suffer the most.

The general assembly of the United Nations adopted the united nation declaration, 1959 on the rights of child where it mainly discussed about the physical and mental immaturity of a child needs special safeguard and cares before as well as birth so that the child can have a happy childhood enjoy for his good and for the society. In the principle1 it is said about the right to enjoyment of rights without any discrimination. It ensures a child’s right to special protection so that they can develop morally, mentally and physically. The child has the right to adequate nutrition and on the other hand he/she has the right to receive the early childhood care for survival, growth and development. The children who are physically disabled should be offered proper treatment and provided with proper educational opportunities. Free education is compulsory for every child, they must be provided with free primary education. There should not be any discrimination for children on the basis of race, caste. Status. Economy. There should be understanding, tolerance and brotherhood between them.

ADMINISTRATIVE ACTIONS

POLICIES FOR CHILDREN

The government of India has also adopted the National policy for children in 1971. It sets out the measures the proposals made by the government of India, to adopt the attainment of objectives that was set out earlier. It also includes actions that are designed to protect children from neglect, cruelty and exploitation. It mainly gives high priority towards the maintenance, well being, and education for the destitute children. It also stresses upon the vital role of the voluntary organizations that plays a vital role in imparting proper education, health services and social welfare to such children. The government should encourage these organizations that can help in the betterment of children. There are no. of programmes for the same. For example children from weaker section of society need special care, attention. Postulation for children who are deprived of the educational opportunities. Programme no. 7 directs the quality of opportunity. That it should be provided to children of all sections of the society including scheduled caste and scheduled tribes. Children with physical disabilities should be taken proper care with proper treatment, education and rehabilitation. Thus we can see that this policy is very effective and the international principles for the development of children are of utmost importance.

 

The National child labor policy, 1987

envisages strict-enforcement of the child labor (prohibition and regulation) act, 1986 for betterment of the condition of the child labor. It believes it in contemplating legal actions plans, general welfare and development plans on child labor and project based plan of action. Ten projects were taken to cover the sivakasi match industry, surat polishing industry, precious stone polishing industry of jaipur, Firozabad glass industry, brassware industry of Moradabad, carpet industry of bhadohi, lock making industry of Aligarh, carpet industry of Jammu and Kashmir slate industry in Madhya-Pradesh. Then the policy proposed that around 30000 children should be withdrawn and should be taken care by the government. The policy also increases this type of enforcing to create socio-economic situations which could diminish incidents regarding children being sent out to work.

 

The Convention of the right of the child (CRC), 1989

was unanimously adopted by the general assembly of the United Nation. The government of India ratified the convention. The CRC deals with the individual rights of the children less than 18 years of age to develop with full potential, free from hunger and want, neglect, exploitation and other abuses. It extends its provision to protect the child’s economic, social and cultural rights. The age of the child is specified (less than 18 years of age). The convention speaks about the parental guidance where the parents or the legal guardians have to provide the children in manner consistent with the evolving capacities of the child and guidance in the exercise rights of the child recognized in the conventions. The child should be registered immediately after birth and it has the right to nationality as per the convention. By this convention a child shall not be separated from its parents against their will and state parties should respect the right of the child who is separated from their parents to maintain personal relations and direct contact with both the parents on a regular basis except it is contrary to the child’s best interest. The child should be given the right to express their views, they have the right to share their own judgment accordingly and they should be given the weight age according to their level of maturity. The child has the right to freedom of association and peaceful assembly. Other than that there are articles where it has been discussed that the children should be protected from sexual abuse and economic exploitation, the child has the right to standard of living, social security and right to education.

The government of India has adopted the National Charter For Children, 2003 to reiterate its commitment towards eradicating the evils of child labor and exploitation. The intention of the charter is to secure the children the inherent rights and to ensure the healthy growth and development of a child which includes survival, life and liberty, promoting high standards of health and nutrition (the government should take a notice about the implementation of the health facilities and state should take the measures to implement proper health care and should aware preventively about diseases), assuring basic needs and supply( the government is there to ensure proper security for supply and needs for example- the authority should take the steps in supplying the basic materialistic needs by a street child), play and leisure, equality, freedom of expression, freedom to be in association, peaceful assembly and proper care for the children with disabilities.

 

The National Plan of Action for Children, 2005

makes out 12 key areas which should be grabbing greatest attentions. They are reducing infant mortality rate, reducing maternal mortality rate, reducing malnutrition among children, achieving cent percent civil registrations of the new born, complete abolition of female feticide and child marriage, all legal and social protection for children and monitoring, reform and review of the proposed and the implemented plans for the abolition of the problem.

 

The Integrated Child Development Service (ICDS). 1975

plays a unique role in the betterment of the life of children, they provide various programmes for the children. It was developed to improve the nutritional and health status of children in the age-group 0-6 years, to lay the foundation for proper psychological, physical and social development of the child, it aims at reducing incidence of mortality, morbidity, malnutrition and school dropout, achieving effective co-ordination of policy and implementation amongst the various departments to promote child development and to ensure about the proper health and nutritional needs of the children. They arrange various programmes like

Nutrition including supplementary nutrition: in this nutrition they generally monitor the growth and surveil the nutrition. The child in each family communities are weighted often with their age and they have with them the cards (measuring weights with age) , therefore it is easy for them to asses the nutritional status. They visit every family and there is a provision within themselves for feed supporting to families.

Immunization: it includes proper immunizations to the pregnant women, infants for various diseases that can affect them like tuberculosis, tetanus, hepatitis etc. thus this section of the policy is for prevention and precautionary measures for the diseases

Health checkups: proper and regular health check-ups are conducted for the betterment of the health of a child. They are transferred to their sub centers for the better governance on the concerned arrangements.

Non formal pre-school education- they arrange a village courtyard for the children. In these arrangement normally joyful activities takes place resulting in the pre-school development of a child. Generally it is a preparation towards the school and these mainly aim at the optimal development of a child.

They also arrange funds for the state (100 % in nutrition). Actually they are resource sponsored and they provide funds to the state. When the states are out of fund then they finance the state, further there are many conditions for their funding process.

THE ELEVENTH FIVE YEAR PLAN:

The 11th five year plan aims at better investment in the educational sector. It is proposed to allocate 1.25 lakh crore for education which is a major leap from 30000 crore of the last plan. It is expected for the plan to cover a its previous achievements and to ensure inclusive growth curbing the negative sections. But merely plans won’t fetch the absolute motive; it has to be perfectly implemented through all out the proposed sectors. Previously it was claimed to have spent through various ways for the development at elementary levels but there was no positive results for the same. The increment of fund is not the only step that has to be done; all the proposed plans fail only when there is lack of plan of allocation of resource like unless a previous defective structure is not refined then it is useless to invest for the establishment of a new unit. The children here are given training, nutrition and regular health check up. In this plan there is a condition for amendment of the child labor act 1986, that there should not be the use of world ‘regulation’ because in this case the child labor negotiation should be non-negotiable, the provisions must be increased and should be stricter. The child labor should not be tolerated any more. New child labor eradication policy should be revised, the child labor has to be abolished in all forms and children enjoying the right to education are non-negotiable. In case of national child labor programme, it also should be revamped in case of migrated students. The intra state migrated students should be provided with additional transitional educational centers (TEC). This should be the joint effort of the state. The 11th five year plan comes up with the topic of social mobilization where the children can be prevented from all the work force. The children should go to government formal schools rather than leaving the home for full day work. For the children to leave work , so that they can get the free elementary education , the prime need is the connection between all the departments like labor ,police ,education ,youth affairs, panchayti raj.. the synchronization between all those will actually bring the synergy to achieve the real motive.

 

JUDICIAL ACTIONS

The role of Indian judiciary and judicial interpretation has been very remarkable now a days because of the increasing statutory invention in the present scenario and the judiciary is very much successful in giving the justice to the needy.

The Supreme Court is the apex court and has been assigned a very important role, and constituted as a guardian of the constitution which is the yardstick of the ground norms of the legislation . It is the duty of the judiciary for the establishment of proposals through which the society or the nation can move forward very effectively. It is a matter of pride that the Indian judiciary system has been able to inaugurate the trust of the common people that is the reason why the people bring their grievances to the court. In case of child labor relating issues or issues affecting many child right infringements, relating to child exploitation etc. the courts have many cases which actually go side by side with the constitution and makes the respective law effective.

The child must be groomed well in the formative years of his life. He must receive education, acquire knowledge of man and materials and blossom in such an atmosphere that on reaching age, he is found to be a man with a mission, a man who matters so for as the society is concerned. In this case, the framers were aware about the prohibition of the child in national building work unless he/she receives the primary education and then there was the insertion of the article (article45) where it is ensured to provide the free education to the children. They should also be provided with proper care and should be financially helped like they should get the minimum wages.

There was another case regarding the employment of children in carpet industry in the state of Uttar Pradesh. The appellant proposed for the proper investigation of the fact. After observation the apex court interpreted that the child of today cannot develop today unless the assurance of physical and mental health. The court held that the every child irrespective of caste, age, birth, colour should have the right to health, well being and education.

In another case there was same observation where the children were subjected to right to health, meaningful right to life with fundamental rights .

This is the reference of another case where apex court receives a letter regarding the workers who were mainly related with the manufacture of beedi and cigar, the children were not given proper wage, shelter and protection which generally leads to child resource exploitation. When the court ordered the society to provide a report of the activities, then it was found that there were many defects in the report. later it was observed that the manufacture of this kind of things leads to hazardous effect on the concerned. The court has adjourned the case for around 8 weeks because of the ineffective implementation of the law and later designing measures to combat this problem was taken by the state, central and the counsel for the employers

There was a case in chattisgarh where a girl child was seen in manufacturing a beedi in her house. This case was taken to court and under the child labor prohibition act it is an offence for sure but it was yet to prove that the age of that girl was less than 14 years. There was no medical or valid argument to present that girl with in 14 years of age. Other than that, beedi manufacturing has two parts. One is to roll the bidi and other case is to supply the raw materials in case of the latter one, the raw material provider enroll themselves legally and there ia no offence in it but in this case as it was not proved that the girl was not below 14 years of age, that’s why the proceedings were quashed.

The same as the above case was also there in the state of U.P where a child was seen in the carpet industry working when the inspection was made by the enforcement officer but again the age proof of the child was not produced by the authority as a result the conviction was unsustainable.

Now we will discuss about a case in Madhya Pradesh where a petitioner is challenging when a fine of RS.20000 was imposed on him for child labor of 14 years of age. Generally prohibition of employment of children in factories says that a single child shall not work with an age less than 14 years of age and as the petitioner was employing a child who is 14 years of age is an offence indeed. So the challenge was not even taken into consideration.

In this case a child below the certified age was employed and was investigated by an officer whose appointment was visualized by section 17 of the child labor prohibition act, 1986 and anything which is contravening the child labor prohibition act, leads to the imposition of penalty of RS 20000 ( twenty thousand) which could be deposited in a fund of child labor

Very recently a petition was filed by the NGO ‘Bachpan bachao andolan’ regarding the prohibition of the children working in circus as mere labours. The supreme court issued a notification prohibiting all the children from working in circuses. It was under article 21 about the fundamental rights of these children.

The Indian government has banned the employment of children under age 14 as domestic servants or in hotels, restaurants or small tea shops in a bid to protect the rights of the children. It also prohibits the children from working in any motels, bars or any other recreational activities

Earlier in case of child labor, the sufferers don’t have that access to the court to express their grievances but now a child labor can easily reach the court and demand for his fundamental rights. This is only because of the locus standi of the court.

In a certain case, it is seen that the supreme court that the employment act of India does not feature the construction work because this is a type of hazardous work and under article 24 one under the age of 14 years is prohibited to act in such activities

SARBHA SIKHSA ABHIYAN

The scheme was adopted by the government of India to provide free education to all under 6 and 14 years of age. This is tagged with the state government to exercise the scheme of elementary education effectively towards every parts of India. Recently the scheme aims at opening new schools in primitive remote places. Not only opening schools they also develop the infrastructure, proper fooding facilities, drinking water, sanitation etc. they are now recently working on to introduce the computer education in the course to increase the quality of education to a very contemporary level.

MID DAY MEAL SCHEME

The concept of mid-day meal originated from a saying of a boy when he said that he will only go to school if he will be provided with food the initiative was taken by the state of Karnataka and later it was stated by the Supreme Court of India that it is a direction to all of the state government to ensure the mid day meals in all types of primary schools in India. Thus it helps to encourage the elementary primary education.

CONCLUSION

HALF HEARTED MEASURES: LACK OF IMPLEMENTATION AND REMEDIES:

After discussing about the measures and actions taken in form of administration, legislation and judicial we can easily interpret that India has really been successful in designing the laws, but that laws are only laws when they are properly implementation. Its like having all the plans without organizing and hard work which thereafter plays an important role in the happening of things. The stark reality is that, if we look India, then we could see that the problem of child labor has no where decreased and still prevalent in the nation affecting the future generation badly. Children are now also found in roadsides, coal mines, industries subjected to exploitation mentally, physically and psychologically. According to one estimate, more than 20 per cent of India’s economy is dependent on children, the equivalent of 55 million youngsters under 14 . Some recent current issues are discussed below

1. Child workers, some as young as 10, have been found working in a textile factory in conditions close to slavery to produce clothes that appear destined for Gap Kids, one of the most successful arms of the high street giant. Speaking to The Observer, the children described long hours of unwaged work, as well as threats and beatings. The discovery of the children working in filthy conditions in the Shahpur Jat area of Delhi has renewed concerns about the outsourcing by large retail chains of their garment production to India, recognized by the United Nations as the world’s capital for child labor .

2. A City-based Child line, a 24-hour helpline for children in distress, rescued 116 children from serious abuse and provided shelter to 46 in 2011. The number of cases of child trafficking, abuse, child labor and beggary increased during 2011 in comparison to 2010, said a report released by the same helpline, which completed 11 years of operation on Monday .

3. In Goa there are around 100 child labors, a prevalence of tourism related sexual abuse and child trafficking. In Goa there is children act 2003 states that the children have to be given free education up to 7 years of age. But up till now there is no such action to do so. There was even a plan of action taken to eradicate child labor in Goa but no survey has been taken already .

4. Another case was there where a boy named ranjith with other 9 children was trafficked to Kerala from west Bengal. They worked in a gold shop at thrissur. They worked constantly for around 16 hectic hours and in that case they were given very low amount of food and money as their reward. They were beaten also in case of any disorder .

5. This is a case about child trafficking. A 17 year girl named as Rani was married to a 40 years old man for rs.10000. After his parents have died, she was got married. One day she went to the police station to complain about her property dispute, she was sexually abused by the police officer. Gradually, she was introduced to many people after when she was trafficked to many places. In this case rani was at the same time sexually abused and trafficked .

6. This is the case of sanu chaudhari when she was brought to India by a co-worker in a carpet industry. Sanu had a friend who tells her about the better payment facilities in raxaul and they settled to go there. But instead of raxaul sanu was actually trafficked in Mumbai, and she was sexually abused by many people, beaten by brothel guards and finally she took up as her profession.

As the above cases described, there are many cases like this which can actually make a clear picture of the fact that after designing so much measures and the measures remain restricted only in paper, not in reality. The judiciary, administrative and the legislation should scan the problem in a broader view, create and amend some existing laws. Here are some points which I think that should be taken into consideration.

 

ECONOMICAL PROBLEM:

First and fore most child labor arises out of mainly one reason that is poverty. We cannot always blame the laws for not having its effect on common people, there are some embedded problems also. For example in primitive villages where the law surely applies but the monthly income is of really negligible amount , then the child of the family below 14 years of age is sent for work to earn the bread for the family or they migrate to another place for any work. Then the children are seen as the financial provider of the family .This includes no offence in that case in case of morality. It is the responsibility of the government to maintain the economical equality between the peoples in India , the biggest problem to be achieved in the current scenario. A family with a very low income rate do not pay any respect towards the laws that prevails but according to them financial assistance is of more importance. Now if that particular family gets the assistance, then they would have hardly sent their children to earn livelihood. So as long there is poverty and destitution in this country, it is really hard to eradicate the evil. In a case the supreme court opined that the problem of the child labor is a very difficult problem and it is a purely economic problem that parents often want their children to be employed to make both ends meet . So onwards there should be some steps by the judiciary or the legislation regarding assisting financially to lessen child labor.

MASS ILLITERACY:

Generally in places where there is mass illiteracy in the community, various social evils are prevalent in that particular section of the society. In the 20th century also, many community think that a girl child is there only for doing household duties and there is nowhere access to education in their families .For these people the constitutional mandates are of no. importance. These categories of people are generally reluctant to send their children to schools and colleges. They send their children for work without knowing anything about the child labor problem and the corrupt employers mostly want these type of workers by whom they can easily make the work done. But this type of continuous practice cannot help in restraining the problem. The government should bear the responsibility to educate the people about the problems, consequences of child labor, about how it hinders the growth of the society, the exploitation of human resource and most importantly that is a punishable offence under law. It should be imparted that education is not only for restriction of child labor but it is also needed to earn money that is the prime factor they look at.

EDUCATIONAL AMMENDMENTS:

It is there that a child has the right to free elementary education between 6-14 years of their age. According to the reports of the Report On National Commission of Labor, the proposed 83rd amendment bill will guarantee the right to education children in time age 6-14 group. Only those who can afford to nurture their young children and provide them pre-school opportunities, will be able to take advantage of the right. The age group of 3+ must be included to ensure that children of disadvantaged groups have equality of opportunity in the school system

Another aspect is there that there are number of schools and plans of actions prepared , but their proper implementation is also important. According to the National University of Educational Planning and Administration (UNEPA), about 47 lakhs elementary school teachers have not studied beyond higher secondary examination. The government should keep training session for that teacher to ensure quality educational to the students. At the elementary level, the student have to be nurtured very properly, have to be equipped with analytical, conceptual skills because this is the base of education that he is receiving . in many cases it happens that for the sake of law , a school is set up. They don’t have proper infra, system and discipline. The teacher remains absent most of the days. In remote areas there is very low accountability rather no accountability in their systems resulting in very poor performance of the teachers. There should be some amendments or some serious measures to curb these problems.

 

BETTER INCOME OPPORTUNITIES

In India unemployment rate is not too high, that it should be ignored. Many of the cases where the peoples are indulging in some unsocial activities, the main reason behind it is the unemployment. In case of child labor as we have discussed above is mainly because of the economical problem that they face. Sometimes due to many realistic reasons and environment prevailing, parents have to send their children for work because he/she is the prime income holder of the family, at this point of time there should be a number of choices. It is therefore the responsibility of the state to provide income alternatives other than health, education, nutrition to the children, because in many families there is the immediate need of money, they cannot just keep their children in schools being the children, the main earner of the society. At this moment alternative income opportunities are needed. The state shall provide incentive along with education. In this case the students receiving incentive can help his family and on the other hand they can also share education both at a time.

ENFORCING THE RESPONSIBILITY ON THE PARENTS

The free elementary education is a constitutional right where it was stated that the state shall provide free education for the children aged between six and fourteen years of age. But this can only be successful in case the parents send them to school instead of sending them at work places. In many cases it happens that, though free education is imparted, still some children do not take part because of not having the consensus of their parents and they go for work under the compulsion of their parents. In this case there should be enforcement on the part of parents in which, the parents will be obliged to send their children to the school otherwise that will be a punishable offence. It will work best for the step mothers/fathers who generally do not send their children to the school and after this the problem will be solved because in this case the parents are in the binding force to send their children to schools . Article 51-A clause k deals with the topic but after the failure of the general persuasion of the clause, it is admitted to move to some stricter provisions. In a case there was opined that children are not mere chattels, they are not the play things of their parents, absolute right of the parents over the destinies and the life of the children has in modern, changed social conditions

 

PROPER ACCOUNTABILITY AND GOVERNANCE

A plan cannot be implemented without proper implementation. All the child labor laws, policies have been determined but not at all implemented properly. This needs proper governance and accountability of the authority. In many cases when it needs the proper investigation about the facts, then the potential to do that really lacks. Sometimes the police inspectors don’t feel themselves responsible for the job given to them. They don’t take the initiative to save the society. There is no one to fill the loop holes prevailing in the system. So the state has to take certain decisions to curtail the problems. The strictness of the law should be increased otherwise the flaws cannot be highlighted and rectified which will result in the ineffective implementation because of violation of laws. One of the effects of this improper governance is the rise of corruption. Illegal employment has been a mode of huge earning in India. The employers generally grab the most portion of amount generated by the child labor. The money generated by child labor is unaccounted and goes to the pockets of the employers. This black money id used again to bribe resourceful peoples all through. But in response only 9 percent of the total employers were arrested. Inspite of their 3 or 4 years of jail, they only got through the case by paying a mere amount for fine. Until now not even a single errant employer has been jailed for . The child labor generates 1,20.000 crores of black money every year.

May be it’s the most pathetic reason why the children have their exposure towards labor. Children whose parents have died and after that it is the immediate necessity of the children to earn something and unfortunately for that reason the child has to join the work. In this case the state should promote the case of adoption. With the help of adoption the child can have again someone who will guide the boy. In eradication of child labor, promotion of adoption is also very important.

According to the report of national commission of labor. A proper fund policy plan should be prevalent. With this facility, the state can use regarding child developments considerations. The best known example comes from Columbia. The government takes 3percent from private and public companies. The fund is then maintained by Columbia institute of child welfare.

On a gross, it can be observed that India has the dubious distinction of having the greatest number of child labor. They are being used by the employers that results in the proliferating amount of miserable and difficult lives for the children. Today the child labor has been nonexistent in the developed countries . But unfortunately in India it is still prevalent because of the poverty forces. The poor income of most of the families in India is the root cause for the problem. There are many voluntary organizations and NGOs who dedicate their duties to eradicate the evil are getting enough support from the government. Very often the open rallies are being arranged by them to infuse the sense of understanding of the problem to the minds of the common peoples. Other than that as discussed earlier there are many actions from the part of state, constitution to fight this problem , then also something is missing very badly and that is proper synchronization between all the measures. If the proper communication and semblance between all the measures can be ensured then the problem will not be as intense as of now. Another major factor that should be kept in mind after the synchronization , is to lower the level of ignorance and increase the mentality of the society. Former can be achieved by proper information allocation in the society and later can be achieved only with the help of the consciousness of the common people. If the community itself do not changes , then it is impossible to implement any ideas and plans because they are main characters dealing with the problem. Therefore the society plays a very important role in this process. We should take the initiative with mass work force and will without passing away the blame on to the others. If we are successful in doing this , then only we can get the solution of the problem.

“Genocide As A Crime International Law”

Introduction

Genocide is not a wild beast or a natural disaster. It is mass murder deliberately planned and carried out by individuals, all of whom are responsible whether they made the plan, gave the order or carried out the killings. Whatever its scale, genocide is made up of individual acts, and individual choices to perform them. So human individuals need to make the commitment, as early in life as possible, that they will have no truck with it. To do that, the way genocide becomes possible has to be understood.

The fact of genocide is as old as humanity. The acts of genocide committed during the Second World War shocked the whole mankind so much so that the General Assembly in its first meeting affirmed the principles enunciated in Nuremberg judgment. Besides this, in its resolution 96 (1), dated December 11, 1946, the General Assembly declared that “genocide is a crime under international law, contrary to the spirit and aims of the United Nations and condemned by the civilized world”. The main cause of such keen interest by the General Assembly in its first session was the Nazi atrocities including the acts of genocide committed by the Germans during the Second World War. The General Assembly did not rest contended with this, but went ahead to adopt unanimously on December 9, 1948, the Convention on the Prevention and Punishment of the Crime of Genocide. The Genocide Convention came into force on January 12, 1951. By 5th January, 2011 Genocide Convention has been ratified by 140 states parties . In imposing its first sentence in Prosecutor vs. Kambanda, the International Criminal Tribunal for Rwanda described genocide as the ‘crime of crimes’ .

 

 

 

Meaning of Genocide

The term ‘Genocide’ was coined by Raphel Lemkin (1900–1959), a Polish-Jewish legal scholar, in his 1944 work, “Axis Rule in Occupied Europe” It is derived from the Latin “gens, gentis,” meaning “tribe, clan, or race,” or the Greek root génos (γÝνος) (family, tribe or race – gene); secondly from Latin -cide (occido—to massacre, kill).

Definition of Genocide-

Article II of the Genocide Convention defines ‘genocide’ in the following words:

“In the present convention, ‘genocide’ means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious groups, as such:

a) Killing members of the group;

b) Causing serious bodily harm to members of the groups;

c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group;

d) Imposing measures intended to prevent births within the group;

e) Forcibly transferring children of the group to another group .

 

1. Killing

Article 6(a) of the ICC Statute requires the perpetrator to have caused the death of at least one member of the group.

2. Causing Serious Bodily or Mental Harm

Article 6(b) of the ICC Statute requires the perpetrator to have caused serious bodily or mental harm to at least one member of the group. Serious bodily harm means serious damage to health, causing disfigurement and serious injuries to external and internal organs or senses. Causing serious mental harm does not require a physical attack or any physical effects of mental harm. It does not require that the harm be permanent or irreversible. It must involve damage “those results ability to lead a normal and constructive life .

Inflicting Conditions of Life

Article 6(c) of the ICC Statute covers the infliction of conditions of life on a group that are calculated to bring about its physical destruction, in whole or in part. The provision prohibits so-called slow death measures- that is, conduct that does not immediately kill, but that can (and is intended to bring) bring about the death of group members over so long term. The conditions of life must only be calculated to physically exterminate part of the group; thus the death of individual members as a result is not a necessary element of the crime. The subjective requirement “deliberately” makes it clear that the perpetrator must employ the conduct as a means to physically exterminate the group. No requirement of prior planning can be derived from these criteria.

3. Imposing measures intended to prevent births within the group

Article 6(d) of the ICC Statute encompasses the imposition of measures aimed at preventing births within the group and thereby targeting its continued biological existence. This conduct includes, for example, sterilization, forces birth control, prohibition on marriage and segregation of the sexes. The measures imposed must be forcible; merely permitting abortions is not sufficient.

4. Forcibly Transferring Children

Article 6(e) of the ICC Statute comprises the forcible transfer of children from one group to another group. This encompasses permanent transfer done with the specific intent of destroying the group’s existence. When transferred to another group, children cannot grow up as part of their group or they become estranged from their cultural identity. According to the Elements of Crimes for Article 6(e), children as referred to in the definition are members of the group under 18 years of age. The transfer must be forcible and can be physical or psychological.

Since 1948, elements of the Convention and specifically its definition of the crime of genocide have been incorporated in the statutes of the two ad hoc tribunals created by the Security Council to judge those accused of genocide and other crimes in the former Yugoslavia and Rwanda. Affirming its enduring authority, the Convention definition was included without any modification in the Rome Statute of the International Criminal Court, which was adopted on 17 July 1998 and entered into force on 1 July 2002. Article 6 of the Rome Statute of International Criminal Court also deals with same definition of genocide .

The prohibition of genocide is closely related to the right to life, one of the fundamental human rights defined in international declarations and conventions.

 

Genocide a crime under International law and Punishment thereof-

 

In

Barcelona Traction Light and Power Co. case (Belgium v. Spain)

I.C.J Reports 1970, p.549

speaking about the obligations of a State when it admits into its territory foreign investments or foreign nationals, the International Court of Justice observed, “such obligations derive, for example, in contemporary international law, from the out-lawing acts of aggression and of genocide as also from the principles and rules concerning the basic rights of human being, including protection from slavery and racial discrimination”.

Article I of the Genocide Convention provides that the contracting parties confirm that genocide whether committed in time of peace or in time of war, is a crime under international law which undertakes to prevent and punish.

Under Article III of the Convention following acts are punishable:

a) Genocide;

b) Conspiracy to commit genocide;

c) Direct and public incitement to commit genocide;

d) Attempt to commit genocide;

e) Complicity in genocide.

Article IV of the Genocide Convention provides that persons committing genocide or any of the other acts enumerated in Article III shall be punished whether they are constitutionally responsible rulers, public officials, or private individuals.

 

Shortcomings of Genocide Convention, 1948

The Convention definition of Genocide has seemed to too restrictive. It has failed to cover, in a clear and unambiguous manner, many of the major human rights violations and mass killings pretreated by dictators and their accomplices. The principal deficiency is that it applies only to ‘national, racial, ethnical and religious groups’ .

 

Elements of Genocide

Material Elements

1. Protected Groups

Only group constituted through “national”, “ethnic”, “racial” or “religious” are protected under the definition of crime. This list is exclusive; the drafters of the Genocide Convention purposely limited Article II to protection of the four named groups. Common to the protected group is the fact that group membership is generally determined by birth and is of a permanent and stable nature.

Criteria for Group Classification:

The common criteria is common customs, language or religion or visible characteristics such as skin colour or stature. But it’s also possible to see group characteristics subjectively and rely on social ascription processes- that is, a group’s self-perception or its perception by others as national, ethnic, racial or religious groups.

1. National Groups

It includes a person who has nationality of that particular state and other elements can be included like common language, history, customs and culture.

2. Ethnic Groups

An ethnic group is a group of humans whose members identify with each other, through a common heritage that is real or presumed. Ethnic identity is further marked by the recognition from others of a group’s distinctiveness and the recognition of common cultural, linguistic, religious, behavioural traits as indicators of contrast to other groups. Ethnicity is an important means through which people can identify themselves. Some believed that ethnic groups were a subcategory of national groups; another believed that the concept of ethnicity was identical with that of race. An ethnic group is distinguished in particular by a specific cultural tradition and a common history. The members of the group speak the same language, have the same customs and traditions and share a common way of life.

3. Racial Groups

Racial groups includes members exhibit the same inherited, visible physical traits, such as skin colour or physical stature.

4. Religious Groups

Religion can also be one of very important factor for committing of genocide. Religious groups such as Hinduism, Islam, Christianity, Sikhism etc.have their own religious procedure, belief and traditions. All groups have different spiritual paradigm, faith and spiritual ideas .

 

Physical element or Actus Reus of Genocide

Criminal law analysis of an offence proceeds from a basic distinction between the physical element (actus reus) and the mental element (mens rea). The prosecution must prove specific material facts, but must also establish the acuused’s criminal intent or ‘guilty mind’: actus nonfacit reum nisi mens sit rea.

The definition of genocide in the 1948 Convention separates the two elements. The initial phrase of Article II addresses the mens rea of the crime of genocide, that is, ‘intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such’. The five sub- paragraphs of Article II list the criminal acts or actus reus .

The term ‘acts’ is also used in Article III of the Convention, but in different context. Article III of the Convention deals essentially with criminal participation, and provides for liability of individuals other than the principal offenders, such as accomplices, as well as for incomplete or inchoate offences, such as attempts and conspiracy, where there is no principal offender at all, because the ultimate crime never takes place .

The expression ‘acts of genocide’ appears only once in the Convention, in Article VIII, a provision addressing the rights of States parties to submit cases to the relevant bodies of the United Nations. The security Council referred to ‘acts of genocide’ in the Resolution 925 adopted on 8 June, 1994 with respect to Rwanda, the first time in its history that it used the word ‘genocide’ in are solution. Three of the five acts defined in Article II of the Convention require proof of a result: killing members of the group; causing serious bodily or mental harm to members of the group; forcibly transferring children of the group to the group. Two of the acts do not demand such proof, but require a further specific intent: deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in pat; or imposing measures intended to prevent births within the group. In the three cases, where the outcome is an element of the offence, the accused may still be subject to prosecution for attempting to commit the crime even if no result can be proven. Proof of a crime of result also requires evidence that the act itself is a ‘substantial cause’ of the outcome. The actus reus of an offence may be either an act of commission or an act of omission. This principle applies to all of the acts of genocide enumerated in Article II, including killing. The most obvious act of genocide by omission is Article II (c): ‘deliberately imposing conditions of life designed to destroy the group’. But omission can also apply to other paragraphs of Article II, as the International Criminal Tribunal for Rwanda noted in the Kambanda judgment .

A Trial Chamber of the International Criminal Tribunal for Rwanda in Akayesu identified two material elements; the victim is dead; and the death resulted from an unfaithful act or omission of the accused or a subordinate .

Mental Element or Mens Rea of Genocide

Even where an act itself appears criminal, if it was purely accidental, or committed in absence of intent to do harm or knowledge of the circumstances, then the accused is innocent. According to Lord Goddard, ‘the court should not find a man guilty of an offence against criminal law unless he has a guilty mind’.

The core offences of Article II, killing (article II (a)) and serious assault (article II(b)), are punishable under all domestic penal codes. The drafters of the Rome Statue of the International Criminal Court were the first to attempt a codification of the mental element of serious international crimes, including genocide. Article 30 of the Statute declares that the mens rea of genocide has two components, knowledge and intent

According to Article 30,’ a person has intent where: (a) In relation to conduct, that person means to engage in the conduct; (b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of event’ .

Knowledge of a plan or policy will be decisive in establishing the guilt or innocence of an accused, regardless of whether courts deem such a plan or policy to be intent in a formal sense. The existence of a plan or policy has also proven decisive when the analysis shifts from individual criminal liability to State responsibility. The International Commission of Inquiry on Dafur concluded that the government of Sudan has not pursued a policy of genocide in answering the Security Council’s question whether genocide had been committed.

The accused must also have knowledge of the consequences of his or her act in the ordinary course of events. If the genocidal act is killing, then the consequence with death and the accused must be aware that this will indeed result or at least be reckless as to the act’s occurrence. In order to meet the standard of knowledge required for mens rea, it may also be sufficient for the prosecution to demonstrate that the accused was reckless as to the consequences.

An isolated sentence in the Akayesu judgment of the International Criminal Tribunal for Rwanda refers to this aspect of the knowledge requirement: ‘The offender is culpable because he knew or should have known that the act committed would destroy, in whole or in part, a group’. This is sometimes described as indirect intent.

Intent is a logical deduction that flows from evidence of the material acts. Criminal law presumes that an individual intends the consequences of his or her acts, in effect deducing the existence of the mens rea from proof of the physical act itself. The specific intent necessary for a conviction of genocide is even more demanding than that required for murder. If the accused accompanied or preceded the act with some sort of genocidal declaration or speech, its content may assist in establishing the specific intent. Factors that may establish intent include the general context, the perpetration of other culpable acts systematically directed against the same group, the scale of atrocities committed, the systematic targeting of victims on account of their membership in a particular group, or the repetition of destructive and discriminatory acts.

 

Early developments in the prosecution of genocide

The origins of criminal prosecution of genocide begin with the recognition that persecution of ethnic, national and religious minorities was not only morally outrageous; it might also incur legal liability. As a general rule, genocide involves violent crimes against the person, including murder.

The new world order that emerged in the aftermath of the First World War and that to some extent was reflected in the 1919 peace treaties manifested a growing role for the international protection of human rights. Two aspects of the post-war regime are of particular relevance to study of genocide;

First, the need for special protection of national minorities was recognized. The World also saw the first serious attempts at the internationalization of criminal prosecution, accompanied by the suggestion that massacres of ethnic minorities within a State’s own borders might give rise to both State and individual responsibility. After the adoption of the Genocide Convention, the United States government told the International Court of Justice that ‘the Turkish massacres of Armenians’ were one of the ‘outstanding examples of the crime of genocide’ .

Genocide is an organized and not a spontaneous crime .

Adolf Eichmann was the first person to be accused of Genocide pursuant to provisions drawn from the. Genocide Convention. The element of state plan was considered by the District Court of Jerusalem, because Eichmann was convicted of genocide only for acts committed after June 1941, that is, when he was made aware of the plan for a ‘final solution’. Since he was, from that date ‘privy to the extermination secret’, it was clear that his intention was, from then on, ‘the total biological extermination of the entire Jewish People’. The knowledge of the plan shows that he had the requisite ‘intent to destroy the group’ qualifying his acts as genocide

 

Prosecution of Genocide by International and Domestic Tribunals

Genocide may be prosecuted by international or national courts. The principal of ‘complementarity’ which defines the operations of the International Criminal Court, established in 2002 following the entry into force of the Rome Statute. Pursuant to this principle, genocide offenders are, preferably, to be tried before domestic or national courts. Only when these fail should the international jurisdiction become operational.

Article V of the Genocide Convention requires States to implement their obligations in domestic law, specifically by providing for trial and punishment of those responsible for thecrime.

 

Example of Genocides on International Level

1. Genocide in Bangladesh

The military regime of Pakistan under General Tikka Khan has committed incalculable and unprecedented acts of genocide in Bangladesh. As pointed out by M.K. Nawaz, “The Bengali people have a language and culture different from the people of the West Pakistan and can accordingly be considered as ethnic group within the meaning of Article II of Genocide Convention. That’s why the genocide committed by the Pakistani military personnel in Bangladesh is clearly and without a shade of doubt an international crime” .

2. Genocide in Bosnia and Herzegovina

The Convention on Genocide has been invoked by then the Republic of Bosnia Herzegovina on March 20, 1993, when it filed an application before the International Court of Justice instituting proceedings against Yugoslavia for violating the Genocide Convention. The application stated that a series of events in Bosnia-Herzegovina from April 1992 up to the date of application amount of acts of genocide within the definition given in the Genocide Convention and that Yugoslavia is fully responsible under International Law for those activities. The International Court of Justice held that Article IX of the Convention on Genocide provided a valid jurisdiction basis. Further, it held that Yugoslavia should take all measures within its power to prevent commission of the crime of genocide and should ensure that no action is taken which may aggravate or extend the existing dispute over the prevention and punishment of crime of genocide or render it more difficult of solution . In the Republic of Bosnia-Herzegovina, conflict between the three main groups- the Serbs, Croats and Muslims-resulted in genocide committed by the Serbs against Bosnian Muslims. In the late 1980’s a Serbian named Slobodan Milosevic came to power. In 1992, acts of “ethnic cleansing” started in Bosnia, a mostly Muslim country, where the Serb minority made up only 32% of the population. Milosevic responded to Bosnia’s declaration of independence by attacking Sarajevo, where Serb snipers shot down civilians. The Bosnian Muslims were outgunned and the Serbs continued to gain ground. They systematically round up local Muslims and committed acts of mass murder, deported men and boys to concentration camps and forced repopulation of entire towns. Over 200,000 Muslim families were systematically murdered and 2,000,000 became refugees at the hands of the Serbs. The Convention has been invoked by then the Republic of Bosnia Herzegovina on March 20, 1993, when it filed an application before the International Court of Justice instituting proceedings against Yugoslavia for violating the Genocide Convention. The application stated that a series of events in Bosnia-Herzegovina from April 1992 up to the date of application amount of acts of genocide within the definition given in the Genocide Convention and that Yugoslavia is fully responsible under International Law for those activities. In 2001, the International Criminal Tribunal for the Former Yugoslavia (ICTY) judged that the 1995 Srebrenica massacre was an act of genocide. The International Court of Justice held that Article IX of the Convention on Genocide provided a valid jurisdiction basis. Further, it held that Yugoslavia should take all measures within its power to prevent commission of the crime of genocide and should ensure that no action is taken which may aggravate or extend the existing dispute over the prevention and punishment of crime of genocide or render it more difficult of solution. On 26 February, 2007 the International Court of Justice (ICJ) upheld the ICTY’s earlier finding and also found that the Serbian government had not participated in a wider genocide on the territory of Bosnia and Herzegovina during the war, as the Bosnian government had claimed.

 

3. Genocide in Rwanda

In order to prosecute persons responsible for genocide and other violations of international humanitarian law committed in Rwanda and Rwandan citizens responsible for genocide, in neighbouring States, the Security Council on November 8, 1994 decided to establish an International Tribunal. The Council also adopted the Statute of the International Tribunal for Rwanda which is annexed to the resolution. The International Tribunal for Rwanda, in the first ever judgment by an international tribunal for the crime of genocide on September 1998, found Jean-Paul Akayesu-the former Mayor of Taba , guilty of genocide and crimes against humanity. He was found guilty of 9 out of 15 counts on which he was charge as the violations of Article of 3 of the Geneva Convention. The Tribunal o September, 1998 sentenced Jean Kambanda, the former Rwandan Prime Minister to life sentence on six counts of genocide .

 

4. Genocide in Dafur

The Darfur Conflict was a guerrilla conflict or civil war centered on the Darfur region of Sudan. It began in February 2003 when the Sudan Liberation Movement/Army (SLM/A) and Justice and Equality Movement (JEM) groups in Darfur took up arms, accusing the Sudanese government of oppressing non-Arab Sudanese in favor of Sudanese Arabs. It is also known as the Darfur Genocide.

The genocide in Darfur has claimed 400,000 lives and displaced over 2,500,000 people. More than one hundred people continue to die each day; five thousand die every month. Since February 2003, the Sudanese government in Khartoum and the government-sponsored Janjaweed militia has used rape, displacement, organized starvation, threats against aid workers and mass murder. Violence, disease, and displacement continue to kill thousands of innocent Darfurians every month. In March 2005, the Security Council formally referred the situation in Darfur to the Prosecutor of the International Criminal Court, taking into account the report of the International Commission of Inquiry on Darfur, authorized by UN Security Council Resolution 1564 of 2004, but without mentioning any specific crimes. Two permanent members of the Security Council, the United States and China, abstained from the vote on the referral resolution.

In April 2007, the Judges of the ICC issued arrest warrants against the former Minister of State for the Interior, Ahmed Haroun, and a Janjaweed leader, Ali Kushayb, for crimes against humanity and war crimes. The Sudan Government said that the ICC had no jurisdiction to try Sudanese citizens and that it would not hand the two men over to authorities in the Hague.

On 14 July 2008, the Prosecutor filed ten charges of war crimes against Sudan’s incumbent President Omar al-Bashir, three counts of genocide, five of crimes against humanity and two of murder. The Prosecutor has claimed that Mr. al-Bashir “masterminded and implemented a plan to destroy in substantial part” three tribal groups in Darfur because of their ethnicity. Leaders from three Darfur tribes are suing ICC prosecutor Luis-Moreno Ocampo for libel, defamation, and igniting hatred and tribalism .

 

Genocide on National Level

1. Genocide in Kashmir

Panun Kashmir Movement (PKM) and the All India Kashmiri Samaj (AIKS) – both the oraganisations, made a complaint before the National Human Rights Commission of India that the Hindu population of the valley of Kashmir, namely Kashmiri Pandits, has been the victims of genocide. Memorandum presented to the Commission on June 7, 19944 asserted that its mass attack on the Hindus began in January 1990 and by the onset of the August 1990 more than 800 of them had been murdered in cold blood. Ethnic cleansing of Hindus has been carried out in accordance with the well-designed plan, including the preparations of ‘hit-lists’ which were even published. After having dealt the definition of genocide as stated in the Geneva Convention of 1948, the Commission dealt the question of the applicability of the Genocide Convention in the present complaint. The Commission stated that no doubt, India has acceded to the Geneva Convention on August, 27, 1959 ,but the killings and ethnic cleansing of the Kashmiri Pandits must been seen in the context of the deeper intent to secure the secession of the State of Jammu and Kashmir. The Commission is therefore constrained to observe that while acts akin to genocide occurred in respect of the Kashmiri Pandits and that indeed, in the minds and utterances of some of the militants a ‘genocide types’ design may exist, the crimes against Kashmiri Pandits, fall short of the ‘Ultimate’ Crime : Genocide .

 

2. Genocide in Gujarat

The 2002 Gujarat violence was a series of incidents including the Godhra train burning and the subsequent communal riots between Hindus and Muslims in the Indian state of Gujarat. On 27 February 2002, the Sabarmati Express train was attacked at Godhra by a large Muslim mob as per a preplanned conspiracy. 58 Hindu pilgrims, mostly women and children returning from Ayodhya, were killed in the attack. This in turn prompted retaliatory attacks against Muslims and general communal riots on a large scale across the state, in which 790 Muslims and 254 Hindus were ultimately killed and 223 more people were reported missing. 523 places of worship were damaged: 298 dargahs, 205 mosques, 17 temples, and 3 churches. Muslim-owned businesses suffered the bulk of the damage. 61,000 Muslims and 10,000 Hindus fled their homes. Preventive arrests of 17,947 Hindus and 3,616 Muslims were made. In total 27,901 Hindus and 7,651 Muslims were arrested. Nearly 10,000 rounds of bullets were fired in police shootings that killed 93 Muslims and 77 Hindus.

The nature of these events remains politically controversial in India. Some commentators have characterized the deaths of Muslims (but not the Hindus) as a genocide in which the state was complicit; while others have countered that the hundreds of Muslim and Hindu dead were all victims of riots or “violent disturbances”. Nine years after the Godhra train went up in flames the court on 22 Feb 2011 pronounced its judgment. Additional Session Judge delivered the verdict and convicted 31 people and acquitted 63. The bodies of those killed in the train were brought to Ahmadabad, where a procession was held, and a move seen as a major provocation for the ensuing communal violence. The VHP issued a call for a state-wide strike on 28 February 2002, which was supported by the BJP. In February 2011, the findings of the Nanavati-Mehta commission were upheld in court, and the Godhra train burning was called a “pre-planned conspiracy”. 31 people were convicted of setting fire to the train and “roasting alive 59 helpless karsevaks.”Of which 11 were sentenced to death and 20 to life sentences .

 

Effects of Genocide on World Community

They included chronic anxiety, fear of renewed persecution, depression, recurring nightmares, psychosomatic disorders, anhedonia (an inability to experience pleasure), social withdrawal, fatigue, hypochondria, an inability to concentrate, irritability, a hostile and mistrustful attitude toward the world, and a profound alteration of personal identity. Syndrome of survivor guilt has emerged as a new effect of genocide crimes. Survivor guilt is the term used to describe the feelings of those who fortunately emerge from a disaster that mortally engulfs others. On an irrational level these individuals wince at their privileged escape from death’s clutches .

 

Conclusion

Genocide is one of the heinous crimes against human being. Genocide is a crime on a different scale to all other crimes against humanity and implies an intention to completely exterminate the chosen group. Genocide is therefore both the gravest and the greatest of the crimes against humanity. In the case genocide as a crime, the principle that any national, racial or religious group has a natural right to exist is clearly evident. Attempts to eliminate such groups violate this

Right to exist and to develop within the international community. Genocide is a conspiracy aimed at the total destruction of a group and thus requires a concerted plan of action. The instigators and initiators of a genocide are cool-minded theorists first and barbarians only second. The specificity of genocide does not arise from the extent of killings, nor their savagery or resulting infamy, but solely from the intention: the destruction of a group. So, strict action and laws should be made against genocide. The punishment should be deterrent.

 

Taxation Of Partnership Firms In India

 

Section 4 of the Partnership Act, 1932 reads “Partnership” is the relationship between persons who have agreed to share the profits of a business carried on by all or any of them acting for all. Persons, who have entered into partnership with one another are called individually “Partners” and collectively “a firm”, and the firm name, under which their business is carried on, is called the “firm-name”.

Partnership – Has no legal personality of its own

 

Section 4 of the Act makes it amply clear that Partnership is a relationship between two or more persons who have agreed to share the profits of a business carried on by all or any of them acting for all. A Firm is a collective name give to the partners who have entered into partnership. There are a plethora of cases in which various courts have held that “Partnership firm has no legal personality of its own”. The Supreme court in the case of Malabar Fisheries Co. Vs. Commissioner of Income-tax, Kerala1 held that “The position as regards the nature of a firm and its property in Indian law under the Indian Partnership Act, ‘ 1932 is almost the same as in English law. Here also a partnership firm is not a distinct legal entity and the partnership property in law belongs to all the partners constituting the firm”

 

The Indian Act, like the English Act, avoids making firm a corporate body enjoying the right of perpetual succession.

The Supreme court in the case of Third Income Tax Officer, Circle-I, Salem and Another Vs. Arunagiri Chettiar2 quoted with approval the following observation of the court in Malabar Fisheries (supra) “”a partnership firm under the Indian Partnership Act, 1932, is not a distinct legal entity apart from the partners constituting it and equally in law the firm as such has no separate rights of its own in the partnership assets and when one talks of the firm’s property or firm’s assets all that is meant is property or assets in which all partners have a joint or common interest”.The Status of a Partnership firm was stated in unambiguous terms in the case of Commissioner of Income-tax Vs. Sagar Mal Shambhoo Nath3 wherein it was observed “We find from a perusal of

 

1 AIR1980SC176, (1979)12CTR(SC)415, [1979]120ITR49(SC), 

2AIR1996SC2160, [1996]220ITR232(SC), 1996(4)SCALE501, (1996)9SCC33, [1996]Supp2SCR461

3 (2006)203CTR(All)167, [2008]296ITR440(All)

 

the aforementioned provisions of the Partnership Act that the “partnership” has not been invested with the status of a “person” in law. This is what was observed by the Supreme Court in Dulichand Laxminarayan v. Commissioner of Income Tax4and the relevant portion of the judgment is quoted below:

Nevertheless, the general concept of partnership, firmly established in both systems of law, still is that a firm is not an entity or ‘person’ in law but is merely an association of individuals and a firm name is only a collective name of those individuals who constitute that firm. In other words, a firm name is merely an expression, only a compendious mode of designating the persons who have agreed to carry on business in partnership.

a`Partnership has been held by different courts at different points in time to be a relationship between persons. The Partnership Act does not vest partnership with a separate legal entity status. Partnership –A separate legal entity for the purpose of taxation.

Section 2(31) of the Income Tax Act, 1961 Act defines a “person” to include an individual, a

 

Hindu undivided family, a company, a firm, an association of persons or a body of individuals whether incorporated or not, a local authority and every artificial juridical person, not falling within any of the aforesaid.

The above definition encompasses a partnership firm and vests on it the status of a distinct legal entity. A partnership firm for the limited purpose of taxation is to be considered a separate legal entity. This view has been substantiated by the Supreme Court in the case of Rao Bahadur Ravulu Subba Rao v. CIT 5which is as follows:

“But, as pointed out by this Court in Dulichand Laxminarayan v. Commissioner of Income Tax, Nagpur, in loads have been made by statutes into this conception and firms have been regarded as distinct entities for the purpose of those statutes. One of those statutes is the Indian Income Tax Act, which treats the firm as a unit for purposes of taxation. Thus under Section 3 of the Act the charge is imposed on the total income of a firm, the partners as such being out of the picture and accordingly under Section 23 of the Act, the assessment will be on the firm on its total profits”.

The above view reaffirmed by the Allahabad High Court in the case of Commissioner of Income-tax Vs.Sagar Mal Shambhoo Nath

4 [1956]29ITR535(SC)

 

The Supreme court in the case of Commissioner of Income Tax v. A. W. Figgies & Co. 6, the Supreme Court held as follows:

“it true that under the law of partnership a firm has no legal existence apart from its partners and it is merely a compendious name to describe its partners but it is also equally true that under that law there is no dissolution of the firm by the mere incoming or outgoing of partners. A ” partner can retire with the consent of the other partners and a person can be introduced in the partnership by the consent of the other partners. The reconstituted firm can carry on its business in the same firry’s name till dissolution. The law with respect to retiring partners as enacted in the Partnership Act is to a certain extent a compromise between the strict doctrine of English Common Law which refuses to see anything in the firm but a collective name for individuals carrying on business in partnership and the mercantile usage which recognizes the firm as a distinct person or quasi corporation. But under the Income Tax Act the position is somewhat different, A firm can be charged as a distinct assessable entity as distinct from its partners who can also be assessed individually.

Section 3 which is the charging section is in these terms:

 

Where any Central Act enacts that Income Tax shall be charged for any year at any rates…tax at that rate or those rates shall be charged for that year in accordance with and subject to the provisions of this Act in respect of the total income of the previous year of every individual, Hindu undivided family, company and local authority and of ‘every firm’ and other association of persons or ‘the partners of the firm’ or the members of the association individually,

The partners of the firm are distinct assessable entities, while the firm as such is a separate and distinct 1 unit for purposes of assessment. Sections 26, 48 and 55 of the Act fully bear out this position. These provisions of the Act go to show that the technical view of the nature of a partnership under English law or Indian law, cannot be taken in applying the law of Income Tax”. The Allahabad High Court in the case of Commissioner of Income-tax Vs.Sagar Mal Shambhoo Nath observed that “when a special provision is made in the Income Tax Act

which is contrary to the provisions of the Partnership Act then effect has to be given to the provisions of the Income Tax Act and resort cannot be taken to the provisions of the

 

Partnership Act. This observation of the court was made on the basis of the principle enunciated by the Supreme court in the case of Rao Bahadur(supra) wherein it was observed “The Act is, as stated in the preamble, one to consolidate and amend the law relating to Income Tax. The rule of construction to be applied to such a statute is thus stated by Lord Herschell in Bank of England v. Vagliano [1891] AC 107

I think the proper course is, in the first instance, to examine the language of the statute and to ask what is its natural meaning, uninfluenced by any considerations derived from the previous state of the law and not to start with inquiring how the law previously stood and then, assuming that it was probably intended to leave it unaltered.

We must, therefore, construe the provisions of the Indian Income Tax Act as forming a Code complete in itself and exhaustive of the matters dealt with therein and ascertain what their true scope is…. To sum up the Indian Income Tax Act is a self-contained code exhaustive of the matters dealt with therein and its provisions show an intention to depart from the common rule, qui facit per alium facit per se”.

The law as regards the treatment of partnership under the Partnership Act and the Income tax Act is quite clear from the above cited case laws. Therefore, it would only be prudent to conclude that partnership firm is not a separate legal entity, save for the limited purpose of assessment under the Income Tax Act.