LGBT rights interpreted by Judiciary “Lesbian, Gay, Bisexual, and Transgender”

How Indian Judiciary is interpreted the social stigma in regards to LGBT rights?

 

Introduction:

It would be problematic to fix a gigantic moment of change from invisibility to visibility in the context of queer citizenship in India. From last few years it could be follow in film industry when the producer introduced new social behavior in the movie like Fire[1]. It argued that the Fire performed an important turn in public perceptions of queer visibility. On the other hand, another movie called “My Brother Nikhil”, the protagonist, Nikhil, is a homosexual man suffering from HIV/AIDS[2] He is detained by the government under the Goa Public Health Act, 1985, which empowers the State government to isolate persons living with HIV/AIDS by confining them in wards and institutions for extended periods.

 

After few years of Fire controversy, a less sensational, but equally epistemic event informed the burgeoning LGBT activism in India. In December 2002, NAZ[3] involved with activism and HIV awareness among the gay and MSM[4] community, filed a Public Interest Litigation in the Delhi High Court in an attempt to read down[5] Section 377’s criminalization of private consensual sexual acts that went “against the order of nature.” Passed in 1861 while India was still under British rule, the law criminalizes any sexual activity that goes “against the order of nature.”

 

The SLP has field against Delhi High Court’s Judgment[6] before Supreme Court by the petitioner who raised the limited question of whether the High Court could dismiss the petition on the grounds that there was no cause of action. The court, while issuing notice to the Central government for representation and said that the petition did not deal with an academic question and that this was a public interest issue that was being debated all over the world. The Judges observed that the High Court could refuse to entertain such an issue only on the grounds that it was merely academic and that there was no personal injury to any party.

 

In response form the Government, the Ministry of Law and Justice had argued that Section 377 should remain because it was a tool that could be used by the government to interfere in the private sphere in “the interest of public safety and the protection of health and morals”[7]. The government claimed that Section 377 was used in cases of assault and deleting the section could2

 

“open the floodgates of delinquent behavior”[8]. The government said that Section 377 was needed to deal with cases of child sexual abuse.

 

The framers framed the sec 377 IPC in such a way that it criminalization of private consensual sexual act that went “against the order of nature”. The law specifically stated that whoever voluntarily has carnal intercourse against the order of nature with any man, women or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

 

Basically this section is intended to punish the offense of sodomy, buggery and bestiality[9]. The offense consists in a carnal knowledge committed against the order of nature by a person with a man, or in the same unnatural manner with women or by a man or woman in any manner with an animal. Consent of the parties here is immaterial and the party consenting is equally liable as an abettor.

 

But Delhi High Court has taken into account the voluntary act when they framed their interpretation of decriminalized of sec377. They interpreted section 377 as more private concern. They brought consensual sexual acts of the adults in private who should exclude form the purview of the sec377 because it is the violation of article 21, 14 and 15 of the Indian Constitution.[10]

 

The attempt to repeal sec377 was introduced by great LGBT political activism in India in late 90’s. The conflict cultural meaning-making and legal intervention has addressed a complex considerable relationship between state and non-state centered activism in the context of sexual orientation. The rapid increase in the number of Indians who become effected by AIDS, has necessitated an approach to queer activism that draws both on an attempt to mobilize a more accountable state to its marginalized populations, but also on the activist energies within cultural and political arenas the state and the judicial process[11].

 

CONFLICT BETWEEN LEGAL ARENA AND SOCIAL PURPECTIVE:

 

Main object of this section provides general understanding to “sodomy” which denotes intercourse per anum by a man with a man or with a woman or with a child or with an animal. Therefore, sex and age is immaterial in the concern of that act. And this section is wide enough to include child and women also.

 

If we look at the case laws we can indentified that whether this section is relevant or not in concern society. In Brother John Anthony v State of Tamil Naddu[12], the petitioner, warder of a boarding house was found to have committed on the inmates of the Boarding School following unnatural offences,viz,

 

1) Inserted the penis into the mouth of the victim and did the act of in carnal intercourse leading to ejaculation of semen into the month; and

 

2) Holding the penis in the hand of the victim making the manipulated movements of penis and withdrawal up to the point of ejaculation of semen.

 

The petitioner held liable under sec 377, IPC for committing unnatural offence by the court.

 

Not only had this, in 1974, the Supreme Court of India upheld an earlier sessions court verdict acquitting two policemen who raped a 16 year old tribal girl in the compound of the Desai Ganj Police Station in Maharashtra. The decision was informed by the horrifically dubious logic that since Mathura was ‘habituated to sexual intercourse’ to begin with and since she had passively submitted to their advances, the act could not be considered as non-consensual. Therefore, eventually activist from the women’s groups to change definitions of “consent”, culminating in the criminal law Amendment Act, 1983, which insisted that the burden of prove consent must be on the accused.

 

In India and the most of the Asian countries homosexual practices with or without consent is illegal and punishable. The British drafted personal law on homosexuality under the section 377 in the Victorian era when homosexuality was consider as an aberration that needed to be rectified by the State by criminalizing all forms of sexual behavior other than penile-veginal.[13]

 

Historically it has been proved that homosexual ‘erotic ‘acts occur in all cultures and in all societies in all periods. In India there exist sufficient documentary, archaeological and anthropological evidences to suggest that same sex ties especially among men, were not only culturally, but dignified and revered by attributing similar traits to religious deities. The Kama sutra has a chapter on same sex love. The apparent acceptance of boy lovers in Mogul and lesbianism in the confines of harems are well known facts of State approval and recognition of homosexuality[14].

 

In Europe the colonial masters had two sets of morality in respect of sexual behavior. The countries with Napoleonic Code did not identify the same sex acts for criminal sanction, whether as common law did criminalize homosexuality act and carried it to India and others parts of the colonies.

 

Even same sex marriage in China, Canada and other places got approval and state sanction. A recent case from Kerala, where the judicial Magistrate has allowed two young nurses to live “together for ever”[15] and they have decided to solemnize their relationship in marriage soon in an example of judicial approval of same sex relationship.

 

However, in twentieth century due to recognition of rights to life and liberty, as a basic human right, interference of law in private life of an individual is consider as invasion on an individual’s private life and bedroom. Perhaps it is to safeguard the individual’s right to privacy that England decriminalized homosexuality acts on private between consenting parties in 1967. Canada and Australia followed England. In the United State it is considered in appropriate to regard homosexuality relations as blameworthy for assigning criminal sanction and the US constitution does not require the state to do so.[16]

 

There is the rapid changing jurisprudence and other law related practice that identities a significant application of Human rights law with regard to people of diverse sexual orientations and gender identities. This development can be seen at the international level, especially in the form of practice related to the United Nations Human Rights treaties as well as Europeans convention of Human Rights. The sexual orientation and gender identity related human right legal doctrine can be categorized as follows:

 

a) Non discrimination

 

b) Protection of private rights and

 

c) The ensuring of special general human rights protection to all, regardless of sexual orientation or gender identity.[17]

 

On March 26th, 2007, the scholars of human Rights have invented a new principal, known as Yogyakarta Principles[18]. It applies of human rights in relation to sexual orientation and gender identity. The objective of this principle is that comprehensive identification of obligation of sate to respect, protect and fulfill the human right of all persons regardless of their sexual orientation or gender identity. It has define sexual orientation in the way that it refers to each person’s capacity for profound emotional, affection and sexual attrition to and intimate and sexual relations with, individuals of a different gender or the same gender or more than one gender.[19]

 

In the view of recognition or right to freedom as a fundamental human right, it is considered world over that criminalization of homosexuality acts is a clear violation of right to privacy. Naz Foundation has challenged specially for in two grounds:

 

1) Section 377 of IPC was violation of Article 14,15 and 19(1)(a-d) and 21 of constitution to the extent it penalizes sexual acts between consenting adults and that

 

2) There exist no compelling State interest to justify the curtailment of such an important element in the fundamental right to life and liberty.

 

Consenting the validity of section 377, Naz stated “it creates an arbitrary and unreasonable classification between natural (penile-vaginal) and unnatural (penile-non-vaginal) sexual acts which is violated of right protection before and under the law provided in Article 14”.

 

Social-scientific evidence has been also suggested that the prohibition acts are indeed not unnatural. Sec 377 is a discriminatory legislation because it criminalizes the pre-dominantly homosexual acts and imposes traditional gender stereotypes of natural sexual roles for men and women upon the sexual minority.

 

Interpretation:

 

The judgment has very limited placed which covered by the legal history of section 377. However, that is an incomplete for the judgment omits a critical paragraph in the writ petition which has been presented by Naz foundation. This paragraph basically explained how the introduction of sec377 “was contrary to then existing Indian traditions, which did not treat sodomy as a crime”. It is unclear why judges prefer to ignore the paragraph borrowed from an important collection of essays on same sex attraction. Perhaps, they felt that this issue would take them down to interpreting religious and spiritual sources. It would have required the judges to accept, deny or at least comment on the petitioner’s submission that section 377 was based on “traditional Judeo-Christian moral and ethical standards.” Accepting such a submission, even if substantiated by Historical evidence, could have made the judgment appears unnecessarily divisive. 6

 

It has observed that Naz Foundation discussion on sec 377’s case-law incomplete. Although the judgment refers to several leading cases, it does not provide that whether all or any of these cases involved same-sex conduct. Instead, after discussing the underlying holdings in each case, Naz Foundation argues that the “tests” for attracting section 377 have changed from “the non procreative to imitative to sexual perversity”.

 

The court interpreted sexual orientation as being analogous to sex and thus held that discrimination on these grounds is prohibited. In order to analyze whether this can be done and is constitutionally valid it is fruitful to look at the various theories of constitutional and statutory interpretation. Every theory starts from the premise that the primary source of interpretation must be the words. If there is any ambiguity we look at external and internal aids to construction. The first theory that can be used in the analysis is the original intention theory.

 

In this it can be look at the Original intent in other words what framers intended. There are two strands of this, semantic original based on what the framers intended to say, and what they intended to do[20].Naz foundation judgment is clearly wrong as when framers spoke of article 15 for understanding of sexual orientation, if they had intended that sexual orientation should be read in to sex then article 377 would have been unconstitutional or read down at 26th January 1950 itself.It can be argued that maybe the framers specifically intended that law should not reflect changes in the original values that the framers thought desirable and that it requires the long and hard consideration needed for a constitutional amendment.

 

Sometimes it is possible for some special cases a statute may have to be historically interpreted “as if one were interpreting it the day after it was passed”. [21] Generally statute always speaking variety of law and the court is liberty to put the current application of the statute in respective of present perspective. There are two kinds of principle which covered the circumstances. The first principle is that court must apply a statute to the world as it exist today and the second principle is that the statute must be interpreted in the light of the legal system as it exist today[22]. Reference to the circumstances existing at the time of the passing of the statute does not mean that the language used, at any rate, in a modern statute, should be held to be applicable to social, political and economical developments or to scientific inventions not known at the time of the passing of the statute[23]. Therefore a statute may be interpreted to include at the time of enactment of the statute.7

 

Apparently a question can be arising as what was the intention of the law framer. Whether their intention intend as originality approach like the words of the statute be given the meaning they would have received immediately after the statute’s enactment or did they intends as dynamists may contend that it would be proper for the court to adopt the current meaning of the words? The courts have now generally supports the dynamic construction but it also has limitation. Statute can not be constructed in such a way that the original concept will be affected. [24]

 

In the case of Royal College of Nursing of the UK V Dept of Health and Social Security[25], Lord Wilberforce said: “ In interpreting an Act of Parliament it is proper and indeed necessary, to have regard to the state of affairs existing, and known by Parliament to be existing, at the time. It is a fair presumption that Parliament’s policy or intention is directed to that state of affairs. Leaving aside cases of omission by inadvertence, this being not such a case when a new state of affairs, or a fresh set of facts bearing on policy, comes into existence, the courts have to consider whether they fall within the parliamentary intention.”[26]

 

Lord Bridge also affirmed “When a change in social condition produces a novel situation, which was not in contemplation at the time when a statute is first enacted, there can be no a prior assumption that the enactment is wide enough to extend to those circumstances, there is no reason why it should not apply.” [27]

 

Therefore the new trend of homosexuality brings new dynamic interpretation by court in the Naz foundation judgment. . The social change in attitude towards homosexuality, two person of the same sex cohabiting and living together for a long time with mutual degree of interdependence have been apprehended as constituting a family[28]. Though they can stay together, but they shall not be qualified as a husband and wife because in Hindu Marriage Act, 1955[29] and Special Marriage Act[30], under the condition of marriage, statute has defined the age bar of bride and bridegroom. But now, the international convention of Human Rights Act, 1998 in England which introduced sexual orientation under Art 14 of European Convention on Human Rights in 2000 as an impermissible ground of discrimination. The same statute has been constructed to regard even same sex partners living together as husband and wife to avoid incompatibility with human rights.[31]

 

The present population of homosexuality in India is 25 lacks rather than one or two person which is a considerable change in social attitudes. Therefore, it is required to change the interpretation of section 377 of IPC as a decriminalization nature.

 

Conclusion:

 

The Victorian laws of sec 377 of IPC, their inherent rights are blatantly squelched down. It stands out as a deviance in the basic structure of the Indian constitution because it impairs the justice, liberty and equality of these unfriendly neighbors. Not only this, it also prevents a bundle of fundamental rights viz Articles 14, 15, 19(1) (a-d), 21 of the Constitution of India, which they as a citizen of India have lawful claim on. The biggest vice of this section is that it equates consensual sex with non consensual sex by categorizing them as the same penal offence.

 

Socio scientific evidences have also suggested that the prohibited acts are indeed not unnatural. Moreover it is to be understood that the import of the word ‘unnatural’ is dynamic and contingent to the societal sensitivity and appearance. The order of nature as purported by the section is ‘sex for procreation’. If this is the grand norm then by its strict interpretation all sex done for pleasure today should be prosecuted and penalized, abortions be prohibited and contraceptives and the like family planning measures be criminalized. The justification to retain section 377 is marinated by a religious and cultural veneer. It is also debated that the culture of homosexuality is essentially borrowed from the west. In stark contrast to this stereotype historically evidences secure that it had been practiced in all cultures at all times.

 

By strict literal interpretation, section 377 does not purport to prohibit homosexual relations; it only restricts certain sexual acts. Such acts may be practiced by heterosexuals also but homosexuals being more vulnerable fall as susceptible targets of the state and the patent victims of human rights violation. Thus, this section has matured into a potent tool of oppression employed by the venal police to further victimize these people[32].9

 

The crux of penal laws is protection of individual and society from unlawful wrongs and injustice, to ensure comfort rather than ensuing discomfort. It is not there to lay down autocratic standards for morality and immorality. The present is a multicultural society, with different inclinations and social, religious and moral affirmations. These co-exist in harmony. As a democratic state lacks authority to impose a particular religion, similarly it cannot bind the people with certain entrenched sexual norms. It cannot deprive an individual’s individuality, his own being.

 

Bibliography: 10

 

Books:

 

  • H Robinson Paul, “Criminal Law”, Aspen publishers, 1997
  • G.P Sing, “Principle of Statutory Interpretation”, Lexis Nexis Butterworth’s Wadhwa Nagpur, 12th Edition, 2010
  • Dworkin G., “ODGERS’Constrution of Deeds and Statutes”, Universal Law Publishing Co Pvt, 5th Edition, 2nd India Print, 1998
  • Binda N.S,Rao M.N and Amita Dhanda, “Interpretation of statute”,10th edition, Lexis Nexis, Butterworths,2007

 

Journal:

  • Narrain Siddharth , A battle for Sexual Right, Frontline, India’s National Magazine from the publishers of THE HINDU Volume 22 – Issue 10, May 07 – 20, 2005,
  • Joseph Jesmin, Territorial Application of High Court Decision, NUJS Law review, rev 471, July- September, 2009
  • Shahani Nishant, Sec377 and the “trouble with Statism” Legal Intervention and Queer Performativity in Contemporary India, GENDER, Issue 50, 2009
  • Rao Ashok, Should homosexuality be legalized?, Times of India,29th June,2002
  • Ramesh Babu, Court nod for lesbians in Kerala, Hindustan Times, 29th October, 2002

[1] In1997 Fire was introduced. Even while inadequately locating lesbian desire only in the context of failed heterosexuality, the film’s representation of same-sex attachments between middle-class Indian women forced queer sexual politics in India into the national imaginary in an unprecedented, and at times, violent fashion. If homosexuality was not part of “Indian” culture, as some state officials claimed, the film successfully fore grounded that homosexuality was not an import of western decadence, and in fact was quite commensurable with indigenous identity formations.

[2] Human immunodeficiency virus/Acquired Immune Deficiency Syndrome.

[3] A Delhi based NGO (Non-governmental Organization)

[4] men who have sex with men)

[5] as opposed to a complete repeal

[6] Suresh Kumar Kaushal v Naz Foundation, SLP(C) No. 15436/2009 The SLP was heard by Justices Y.K. Sabharwal and P.P. Naolekar.,

[7] Siddharth Narrain, A battle for Sexual Right, Frontline, India’s National Magazine from the publishers of THE HINDU Volume 22 – Issue 10, May 07 – 20, 2005,

[8] See supra note 7

[9] Indian Penal Code, Chap. XVI, Sec. 377, Qted. In Bhaskaran, 15)

[10] Jesmin Joseph, Territorial Application of High Court Decision,NUJS Law review, rev 471, July- September, 2009

[11] Nishant Shahani,Sec377 and the “trouble with Statism” Legal Intervention and Queer Performativity in Contemporary India, GENDER, Issue 50, 2009

[12] 1992 Cr. LJ 1352

[13] Ashok Rao, Should homosexuality be legalized?, Times of India,29th June,2002,page 6

[14]Manusmriti,Chapter 8 Verse 370

[15] Ramesh Babu,Court nod for lesbians in kerala, Hindustan Times,29th October,2002,page 13

[16] Paul H Robinson, Criminal Law,(1997) Aspen publishers, Inc, pp-766-767

[17] Para42 pag36 of Naz Foundation Judgment

[18] See Supra note 18,Para 43 page 36

[19] See Supra note 18,Para 44 page 37

[20] This can be understood using the example of school segregation. When the laws of school segregation were overturned in Brown v Board of education, a lot of people opposed this saying that the framers did not intend this. The argument being that as the body reflecting popular sovereignty only the legislature has the authority to do this.

[21] G.P Sing, “Principle of Statutory Interpretation”, Lexis Nexis Butterworth’s Wadhwa Nagpur, 12th Edition,2010

[22] See supra note15,pp250

[23] See supra note 15,pp250

[24] See supra note 15,pp-251

[25]See supra note 15, pp-251(1981)1 ALL ER 545,pp-564,565

[26] See supra note 15, pp251.

[27] See supra note 19,

[28] Fitzpatrick v Streling Housing Association Ltd,(1999)4 All ER 705(HL)

[29] Hindu Marriage Act, 1955, sec 5(iii) stated that the bridegroom has completed the age of eighteen years and the bride the age of fifteen years at the time of the marriage.

[30] Special Marriage Act, 1957, sec4(c) also defines the male has completed the age of twenty-one years and the female the age of eighteen years.

[31] G.P.Singh, Principle of Statutory Interpretation, 9th Edition, 2004, pp-231Ghaidan v Mendoze, (2002),4 All ER 1162(CA).

[32] As per the PUCL report 2003, it gives unbridled license to the lower executive strata for the rampant extortion of money. Such cases do not come to the limelight as homosexuals never file FIRs due to the social stigma attached to their being. They are abused sexually, verbally and detained for varying period of time which stretches from overnight to a few days imprisonment. No FIRs are filed by the police nor are any documentary evidences maintained resulting in excessive dolor void of any recourse. These people are discriminated at the workplace, abused by all and sundry or forced to marry against their will in hope of changing their cardinal self. Not to forget the younger ones who are evicted out of their own homes owing to the prejudice and social apprehensions. Since FIRs are scarcely filed, cases do not go to the court. Out of the few cases which do reach its footsteps the judiciary, owing to the delicacy of circumstances, reverts to a liberal stand

CONVEYANCING OF SALE DEED AND ITS REQUIREMENTS

Conveyancing has been practiced as a fine art in England by a class of trained lawyers who have specialized as conveyancers after an intensive study of the law relating to contracts and real property. Though the term conveyancing used by most of the England Lawyers for drafting the documents of their clients but as the years rolled by Conveyancing got its own importance even in India too. In Modern India Draftsman plays an important role while drafting any legal documents or deeds and he can do so if he is high qualified in the field of law so draftsman must keep in mind all the legal principles before preparing any legal documents or deeds.

The word ‘CONVEYANCING’ means lend transfer inter-vivos i.e. two living persons. Conveyancing is an art of drafting deeds and legal documents whereby any right, title or interest in tangible immovable property is transferred from one person to another. Conveyancing is not just an ordinary art but it is thoroughly based on legal knowledge and principles evolved over years. The term conveyancing is restricted to deeds and documents concerned with the transfer of property whereas drafting carries a general meaning that of preparing any legal documents or deeds or any other business oriented documents.

The word ‘SALE’ defined under Section 54 of “The Transfer of Property Act, 1882” is a transfer of ownership in exchange of price paid or promised or part-paid and part-promised. It means absolute transfer of tangible immovable property by the vendor to the purchaser by entering into a contract for sale wherein both the parties will settle the terms and conditions of transfer. Such transfer can be done through the registered document and thus delivery of the property can be by handing over the actual possession of the immovable property by the vendor to the purchaser or the person legally authorised by him. In a sale of tangible immovable property an Encumbrance Certificate will be passed to the purchaser by the vendor whereby all the statutory rights i.e. easementry rights, beneficiary rights, actionable claims as well as vested interest in the immovable property will be transferred in-toto.

Before explaining the term ‘Sale Deed’ let me define ‘Agreement To Sell’ which proceeds ‘SALE DEED’ and it protects the interest of both buyer and seller. An agreement to sell is a legal written document on which the conveyance deed is drafted under which both the parties will settle certain terms and conditions i.e. seller will be intending to transfer/sale the property and buyer will be intending to purchase it. An agreement to sell has to be executed by the seller and the buyer on a non-judicial stamp paper and the same has to be duly signed by both the parties. It has got legal value and if necessary can be produced as evidence in a court of law. An agreement is a pre-requirement for the sale of an immovable property where in the buyer will pay to seller some token amount as advance and seller must issue receipt for the amount received as token amount. While entering into an agreement to sell, the seller should mandatorily state all the material defects in the property as well as in the title and it is the right and duty of the buyer to investigate the title before buying the property. There should not be any Lis- Pendens i.e. pendency of suit in a court of law regarding the property in sale. Lastly the agreement to sell must contain all the terms and conditions which are necessary for transaction of a valid sale of an immovable property.

The word ‘SALE DEED’ otherwise called as ‘Conveyance Deed’ is a legal written document executed by the vendor and the purchaser which evidences the sale and transfer of ownership of the tangible immovable property. A sale deed is governed by ‘The Registration Act, 1908’ and is an important document for both the buyer or the transferee and the seller or the transferor. A sale deed is executed after the execution of the agreement to sell, and after compliance of various terms and conditions between the seller and the purchaser mutually. A sale deed is the main document which gives details of how the seller got the property, at what consideration the seller is selling the property and assurance to the purchaser that the property is free from any encumbrances, liabilities or indemnity clauses. A sale deed acts as a essential document for the further sale of the property by the purchaser as it establishes the proof of ownership of property.

Requirements of Sale Deed:

A sale deed is one of the most valuable legal documents in a purchase or sale of a property. A sale deed is drafted by legal draftsman on a non-judicial stamp paper of the requisite value as prescribed by stamp act of the particular state concerned. A draftsman must include certain clauses while preparing the construction of the sale deed which are as follows:

  • Name of the deed: It is the parties who have to decide that which deed has to be prepared e.g. THIS DEED OF SALE or THIS DEED OF MORTGAGE or THIS DEED OF LEASE etc. and based on which there will be transfer of ownership of immovable property.
  • Parties to sale deed: An absolute sale deed must contain the names, age and respective addresses of parties to the transaction and both the parties i.e. seller and buyer must be competent to enter into a contract so that it will not affect the validity of the valid sale. It is very much important that the sale deed is duly signed and executed by both the parties with their bona-fide intention. A valid sale deed must start with clear description of the parties.
  • Description of the property sold: A valid sale deed must contain full description of the property which is the subject matter of sale. It must include identification number, total plot area, construction details as well as its location with its surrounding areas. A schedule of the property must be included in the sale deed which will define the exact location where the property is actually situated.
  • Agreement for sale: An agreement for sale is the main requirement of the drafting of the valid sale deed and both the parties must mutually settle the terms and conditions of the agreement so that it will not affect the rights of the parties. A sale deed always precedes agreement to sell.
  • Sale consideration clause: A sale deed must include the clause stating the sale consideration/amount as agreed between the seller and the buyer which has to be paid by the buyer to the seller on the execution of sale deed. A sale amount should be clearly stated in sale deed as agreed in the agreement to sell so that there should not be any onus on the parties to the transaction.
  • Advance payment if any: If there is any transaction of token amount paid by the buyer to the seller then it has to be clearly mentioned in the sale deed, and how much is the remaining balance to be paid on the execution of the sale deed.
  • Mode of payment: It is always the buyer who has to decide that how he is going to pay the sale consideration amount whether by Cash /Cheque/ Demand Draft and the same has to be agreed by the seller.
  • Passing of the title: A sale deed should contain the clause when the original title of the property to be passed to the purchaser. A time limit should be given to the seller for the transfer of the title. Once the title of the immovable property is transferred, all the rights will pass to the purchaser.
  • Delivery of the possession: The possession of the immovable property will be transferred to the purchaser by the vendor once the registration process is completed. A clause in the sale deed must state when there will be actual delivery of the possession.
  • Indemnity provision if any: A seller must clear all the statutory charges i.e. property tax, electricity charges, water bills, cess, society charges, maintenance charges and all other charges relating to the property before the execution of the sale deed. In case there is any encumbrance on the property, the seller needs to repay the loan amount and get the property papers cleared of the encumbrance. It is the duty of the buyer to verify the encumbrance status from the office of the registrar.
  • Execution: Once the Sale Deed is prepared all the parties to the deed shall execute it by affixing their thumb impression or full signature. Each page should be signed by the seller and buyer. Any alteration, addition or deletion is to be authenticated by full signature of the parties. Execution of the sale deed requires to be witnessed by two witnesses. The witnesses shall give their full particulars and addresses.
  • Registration: According to Section: 17 of ‘The Registration Act, 1908’, the registration of a tangible immovable property is compulsory if the value of the respective property exceeds rupees 100/- and it is the registration of the property which makes the sale valid. For getting the registration done both the parties must be present before the jurisdictional sub-registrar office with the original documents within four months from the date of execution. A stamp duty has to be paid by the purchaser to the sub-registrar for getting the registration done. A certified copy of the registration document to be obtained for the future reference.
  • Testatum: Once all the terms and conditions have been settled between both the parties, a sale deed is prepared. The executed sale deed should be witnessed by at least two witnesses one from seller side and one from buyer side, giving their full names, addresses and signatures.
  • Original documents: Once the property gets registered under the registration act all the original documents of the sold property to be hand over by the seller to the purchaser. All the statutory rights along with ownership, possession, title, interest will get vested in favour of the purchaser.
  • Default clause: An agreement for sale of immovable property should include the clause stating if there is any default by the vendor or the purchaser then the party who rescinds the contract need to pay damages to the other party for the breach of contract so that it will not affect to the execution of the sale deed.

Since drafting of sale deed requires abundant caution and presence of mind with sufficient knowledge of property and other allied laws, it would be better if services of advocates who have vast experience in property transactions are utilized to avoid unexpected and uncalled for litigations which may arise in a poorly drafted sale deed.

Optimal Balance of Financial Instruments: Long-Term Management, Market Volatility & Proposed Changes

An optimal mix of financial instrument can be structured to incentivize the management to focus on the long-term management. However there is not a single unique optimal mix available for all firms. It will vary on firm, industrial characteristics and market. The choice of securities issued depends on few broad factors:

 (1) The existing mix of securities outstanding or prevalent division of return amongst financial instrument,

 (2) The valuation by market of expected return and securities,

 (3) the distribution of return to the instrument holder,

 (4) The size of the firm and the amount to be raised and

 (5) The cost associated with different source of funds.

The key question is whether firms can design an optimal capital structure that encourages efficient decision-making and restricts managerial myopia. Managers typically do not have a stake in the firm; there is priori no reason to believe that they will act in best interests of shareholders. Thus managers may engage in value destroying mergers, indulge in perquisites (private jets, luxurious holidays etc.), therefore managers should issue a “hard” claim like debt as a pre-commitment device to constrain themselves. Benefit attached with debt is tax deductibility, though too much debt results in bankruptcy but benefits can be used to trade-off bankruptcy costs. Nolan (2002) develops a model to show how long-term debt negates myopic behavior by serving as an incentive to have high future earnings in order to avoid the costs of bankruptcy. In such a scenario, firms can issue long-term debt to ensure managerial commitment towards generating long-term earnings. This will also result in a lower volatility of firm’s cash flow. While debt ought to be long-term, it should not be very high, i.e. debt-equity ratio should be as low as possible.

Bond-holders only have contractual rights, left at the mercy of interpretation of different boilerplates. Despite being negotiable, most terms of the indenture are incorporated unanimously by the corporation and underwriters, bondholder are merely passive. Indenture covenant giving right of monitoring performance and representation in the management would be praised. Incorporation of fiduciary rights and duties in the debt-indentures (prior to bankruptcy) will provide better safeguards and create investment incentives.

Debt cannot be used as an incentive mechanism across all industries; it also restricts managerial ability to make risky investments. Further stronger creditor rights inhibit corporate risk taking, thus it entails a different mix of financial instruments should be used to restrict managerial myopia. A simple solution is to structure their compensation contracts to align their incentives with the long-term prospect of the firm. For instance, a portion of their compensation should include common stock with contractual binding to hold the stock for say 5 years. This encourage managers to undertake only those risky investments that maximize firm value and creates incentive for management to ensure long run performance of the firm. This goal can also be achieved by providing independent compensation/recompense upon performance of the corporation over a period of time and not temporary fluctuation. Further there should be provisions of claw-back (to pull back the benefit given to the managers) in the instruments and compensation agreement, contingent upon bad performance of management and/or corporation as a whole.

At the same time, long-term management can be achieved by providing stock options (having long expiration date) as managerial incentive, alongside the market. It aligns management’s interest with the performance of the corporation, for them to redeem the value at better performing market price. Though there is no corresponding pay reduction if the company did poorly. It may also lead to conflict of interest in-between management and investors, and may result in decisions driven by short-term benefits by temporary manipulation in movement of stock price. Nevertheless by designing stock options with a lock-in period, manipulation in movement of stock price can be avoided. This would also affect the speculation positively and reduce market volatility. Tying management with the equity performance will develop market confidence and security performance less volatile. Options have another downside especially for a firm in distress. Since, the value of the option is increasing in volatility; it might cause the management to take more risk. This is particularly important when the stock value of the firm dips below the stock strike price on the option. If the management is given rights to lower the strike price when stock price falls substantially, it may prevent the management from risk taking. Further the proportionate change in the strike price of option would stabilize its market.

Managerial short-termism is often driven by short-term investors who are in the game of ‘burn and run’ and force managers to make policy decisions based on shorter period of earnings statements. One potential solution is to encourage long-term equity ownership by giving loyalty dividends. The firm should hold on to excess cash and disburse it as dividends over longer time periods. Excess cash can further be invested as safer debt, and interest generated can be paid to shareholders as opportunity cost, over and above dividends. Moreover, given the positive stock price reaction to dividends, this also restrains managerial incentives to issue dividends to boost short-term stock price even when the cash may be better used to invest in positive Net Present Value projects.

There may be established an independent ‘executive compensation committee’ approved by share holders vote. Shareholders may also be given rights to vote, approving executive compensations on a yearly basis. In case of a merger or acquisition, shareholders may have right to vote and approve any underlying agreement regarding, executive compensation in relation to that transaction (golden parachute). This will tie the managerial action, avoid waste and make managers more accountable to the Shareholders; will entail long-term management. This would bring about shareholders’ and market confidence in the management, thus affects follow.

How close the board of directors come to meeting this optimum will depend on how educated their investment strategy is, as well as a number of other variables, some of which are beyond the control of the collective human element, making the decision.

World Trade Law

INTRODUCTION

“Prompt compliance with recommendations or rulings of the DSB is essential in order to ensure effective resolution of disputes to the benefit of all Members.”

—-World Trade Organization, Article 21.1 of the DSU

In 1994, the WTO members agreed on the Understanding on Rules and Procedures Governing the Settlement of Disputes or Dispute Settlement Understanding (DSU) (annexed to the “Final Act” signed in Marrakesh in 1994)[1]. Pursuant to the rules detailed in the DSU, member states can engage in consultations to resolve trade disputes pertaining to a “covered agreement” or, if unsuccessful, have a WTO panel hear the case[2]. The priority, however, is to settle disputes, through consultations if possible. By January 2008, only about 136 of the nearly 369 cases had reached the full panel process.

The operation of the WTO dispute settlement process involves the parties and third parties to a case and may also involve the DSB panels, the Appellate Body, the WTO Secretariat, arbitrators, independent experts, and several specialized institutions[3]. The General Council discharges its responsibilities under the DSU through the Dispute Settlement Body (DSB)[4]. Like the General Council, the DSB is composed of representatives of all WTO Members. The DSB is responsible for administering the DSU, i.e. for overseeing the entire dispute settlement process. It also has the authority to establish panels, adopt panel and Appellate Body reports, maintain surveillance of implementation of rulings and recommendations, and authorize the suspension of obligations under the covered agreements.[5] The DSB meets as often as necessary to adhere to the timeframes provided for in the DSU[6].

Since 1 January 1995 to 1 March 2007 of the extent to which WTO Members have complied with adverse WTO dispute settlement rulings rendered both by dispute settlement panels and the Appellate Body. The record indicates that, generally speaking, WTO Members found in violation of their WTO obligations in dispute settlement proceedings have done a reasonably good job in taking steps to correct these violations within a reasonable period of time. While there have been some cases where compliance has been delayed or where full compliance has yet to be achieved, this should not detract from the fact that the overall compliance record of WTO Members has been quite positive, which in turn has contributed significantly to the effectiveness of the WTO dispute settlement system as a whole.

It is to be recalled that Article 3.7 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) clearly states that the preferred remedy under the WTO dispute settlement system is the withdrawal of any WTO-inconsistent measure. If and only if this is not possible on a timely basis are alternative remedies to be pursued. These alternative remedies are (i) the granting of compensation by the responding Member to the complaining Member consisting of trade liberalization measures with respect to a volume of trade comparable to that adversely affected by the WTO-inconsistent measures; and (ii) if compensation is not possible and as a last resort, retaliation by the complaining Member consisting of trade-restrictive measures of a proportionate nature against the trade of the responding Member[7].

Up until 1 March 2007, there have been panel or panel/Appellate Body reports adopted by the WTO Dispute Settlement Body (DSB) in 109[8] cases excluding reports from so-called Article 21.5 of the DSU compliance proceedings, which have occurred in roughly one out of every five cases where WTO violations have been found in the original WTO litigation proceedings[9]. Of the 109 adopted panel or panel/Appellate Body reports, in nearly 90% of these cases the panel and/or the Appellate Body have found WTO violations.

Only 17 WTO Members—counting the European Communities as 1 Member rather than as 27 Members—or about 30% of all 150 WTO Members—counting the European Communities in this calculation as 27 Members—have ever been the object of adverse or partially adverse rulings by WTO panels and/or the Appellate Body for which compliance was required. Seven of these 17 WTO Members have been the object of only one adverse or partially adverse ruling. These seven Members are Brazil, the Dominican Republic, Egypt, Guatemala, Indonesia, Thailand, and Turkey.

Ten WTO Members have had multiple adverse or partially adverse rulings in WTO litigation proceedings. These 10 Members are (with the number of cases in which violations against them were found in parentheses) the United States (33), European Communities (16), Canada (8), Argentina (6), India (4), Mexico (4), Korea (5), Japan (4), Chile (2), and Australia (2).

COMPLIANCE RECORD OF WTO MEMBERS—SOME GENERAL OBSERVATIONS

As has been widely acknowledged by WTO Members themselves, the overall compliance record of WTO Members with adverse WTO dispute settlement rulings has generally been quite good in the cases to date in which WTO violations have been found. In virtually every one of these cases, the WTO Member found in violation of its WTO obligations has indicated its intention to bring itself into compliance and in most cases has already done so.

The record has also shown that compliance has usually been more rapid where WTO violations could be corrected through administrative action under the control of the Executive as opposed to legislative action. This outcome is not surprising since legislative action involves more complicated political processes; the enactment of corrective remedies through changes to national statutes usually takes a longer period of time in most national systems. As will be seen further, the experience of the United States in this regard is instructive.

The use of compensation as a transitional remedy until full compliance could be achieved has only occurred in one case[10]. Thus, the WTO dispute settlement model in practice has been a ‘compliance-retaliation’ model rather than a ‘compliance-compensation-retaliation’ model.

As for the resort to retaliation, out of the 109 cases where a panel or panel/Appellate Body report was adopted, retaliation has been requested in only 18 instances of which 9 have gone through the arbitration process under Article 22.6 of the DSU to establish the proper level of retaliation. The DSB granted authorization to retaliate in only eight cases. In one case (US1916 Act), the WTO-inconsistent measure was withdrawn soon after the arbitration was completed, thus obviating the need for final DSB authorization of retaliation. More will be said on retaliation in the final section subsequently.

Compliance Problems in WTO Dispute Settlement:

This Comment surveys the problems of compliance facing the World Trade Organization (WTO) dispute settlement system and considers reforms that might improve compliance. In general, the WTO dispute settlement system has an excellent compliance record. A recent examination of the implementation record of WTO decisions for the first ten years of WTO dispute settlement found a compliance rate of 83%[11]. Although new problem cases continue to arise, several of the ten problem cases outstanding at the time of the study have since been resolved[12]. This compliance rate is very good for an international state-to-state dispute settlement system[13].Moreover; the success rate of consultations in WTO cases that do not result in either adopted panel or Appellate Body reports is impressive[14]. The picture, however, is not so rosy if one looks beyond general statistics and considers the quality and timeliness of compliance actions.

Timeliness also encompasses inquiries into whether the time taken by the panel and appellate processes has met the standards specified in the WTO Dispute Settlement Understanding (DSU)[15].

An examination of the quality and timeliness of compliance in the first ten years of the WTO dispute settlement system reveals some interesting patterns. General Agreement on Tariffs and Trade (GATT) and Trade- Related Aspects of Intellectual Property Rights (TRIPS) cases typically result in the timely withdrawal of the contested measure[16]. The two TRIPS cases brought against the United States[17] and the European Communities –Bananas[18] case are the main exceptions to this trend[19]. In other words, the desired result has generally been achieved in GATT and TRIPS cases. There have also typically been timely withdrawals of the contested measures in safeguard and textiles cases; however, the contested measures in these cases were often in place for all or most of the initially intended period of effectiveness[20]. Thus, compliance was timely in terms of respecting the reasonable period of time for implementation set by the WTO dispute settlement process, but the overall WTO process took so long that implementation was not very meaningful in practical terms[21].

 

Finally, with respect to the overall timeliness of the panel and appellate process, a detailed examination of the time taken by panels to issue their reports shows that panels typically exceed the targets set in the DSU by many months, especially in Article 21.5 compliance proceedings[22].While the Appellate Body usually issues its report within ninety days of an appeal[23], the overall time taken by the process— especially when the “reasonable” periods of time for implementation are taken into account— is quite long[24]. This Comment will not further consider the problem of the length of proceedings, except to note that reforms are both needed and feasible[25].

Taken together, the foregoing suggests that although the WTO dispute settlement system may have an admirable record overall, considerable room for improving the quality and timeliness of compliance exists. Indeed, businesses have expressed concerns about non-compliance and delays as reasons not to use the WTO dispute settlement system, which raises serious concerns for the future[26]. Thus, it is appropriate to consider the question of what changes might be made to the system to address these problems. It has been considered that the changes in compensation and retaliation rules could resolve the dispute settlement system more perfect.

CASE STUDIES—UNITED STATES AND THE EUROPEAN COMMUNITIES:

The United States and the European Communities are the two WTO Members that have by far not only initiated the greatest number of WTO litigation proceedings against other WTO Members but that have also had the most number of litigation proceedings initiated against them. Thus, it is particularly instructive to review the compliance record of the United States and the European Communities, since together they have been the object of about one half of all adverse WTO rulings.

The United States has been the object of adverse or partially adverse rulings as a respondent in 33 cases. In four other cases, no WTO violations were found and the United States was fully exonerated. Of the 33 cases where violations were established, the United States has been able to comply or is in the process of complying solely through administrative actions in 26 cases. Sixteen of these were either anti-dumping or subsidy cases, three were textile cases, four were safeguard cases and three involved other WTO violations. As of 1 March 2007, the steps taken by the United States to implement the rulings and recommendations of the DSB in USUpland Cotton, USOil Country Tubular Goods Sunset Reviews, and USGambling were in compliance proceedings under Article 21.5 of the DSU. In seven cases[27] legislative action has been or is necessary to bring the United States into compliance. In four out of these seven cases, the US Congress has already passed remedial legislation[28]. Indeed, these legislative acts to comply by the US Congress, all taken since late 2004, have been among the most noteworthy and positive developments for the WTO dispute settlement system, given the previous harsh criticism of the system emanating from certain members of the US Congress, particularly with respect to trade remedy cases. There are some transitional problems in the USOffset Act (Byrd Amendment) case since the legislation repealing the Byrd Amendment does not take effect until 1 October 2007 and remedial legislative action is still required in the other three cases. Nonetheless, recent congressional actions to implement adverse WTO panel and Appellate Body reports have been significant and their importance for maintaining the legitimacy of the WTO dispute settlement system should not be underestimated.

As for the European Communities, it has been the object of adverse or partially adverse rulings in 16 of the 19 completed cases in which it was the responding party. In addition, the European Communities settled the matter prior to the issuance of the final panel report in three instances. In all 16 cases where the European Communities was found to be in violation of certain of its WTO obligations, the European Communities committed to bring itself fully into compliance with the adverse panel and Appellate Body reports. Its actual compliance record has also been good, although the administrative and legislative processes which must be observed to implement a decision are of course quite different from those used in the United States[29]. While the United States and the European Communities have been the WTO Members with the most extensive compliance experience, other WTO Members, both developed and developing, have also had to comply with adverse WTO rulings and, for the most part, have done so in a satisfactory fashion. As for other developed country WTO Members, Canada has taken actions to comply in six cases[30]. Canada has yet to comply in the two regional aircraft subsidy cases successfully brought against it by Brazil. For its part, Japan has taken actions to comply in three cases[31] where WTO violations were found and settled the matter prior to the adoption of the final panel report in one instance.[32] Finally, Australia has taken actions to comply in the two cases where WTO violations were found.[33]

A problem with the implementation of WTO dispute settlement recommendations and rulings is the lack of guidance over what exactly a losing party must do to comply. The tendency has been for the losing party to take minimal steps and declare itself in full compliance. The winning party often disagrees. One solution is to refer the matter to a compliance panel under art 21.5 of the DSU.In EC—Bananas III (Ecuador) and EC—Bananas III (US)[34], the DSB authorized retaliation for both Ecuador and the United States against the European Communities. However, only the United States actually imposed retaliatory measures against $115 million of its trade with the European Communities. These measures were subsequently withdrawn after a bilateral settlement and are no longer in effect.

In EC—Hormones (Canada) and EC—Hormones (US)[35], the DSB authorized retaliation for both Canada and the United States against the European Communities and both imposed retaliatory measures—the United States against $130 million of trade and Canada against some $20 million of trade. Despite claims by the European Communities that it has brought itself into compliance with the original panel and Appellate Body reports, these retaliatory measures currently remain in place. The European Communities has initiated dispute settlement proceedings against Canada and the United States seeking their removal[36].

In US—Offset Act (Byrd Amendment)[37], the DSB authorized retaliation by the eight original complaining parties against the United States, with the amount of the retaliation to be directly tied to the amount of the anti-dumping and countervailing duties actually refunded to US petitioners under the WTO-inconsistent statute. To date, only the European Communities, Canada, Japan, and Mexico have actually imposed retaliatory measures against US trade. Following a recent US court ruling that the Byrd Amendment does not apply to Canada and Mexico by virtue of certain NAFTA provisions, Canada and Mexico withdrew their retaliatory measures. However, the European Communities and Japan have indicated that their retaliatory measures will remain in place as long as anti-dumping and countervailing duties assessed against their exports to the United States continue to be distributed to domestic producers under the Byrd Amendment. This distribution of duties assessed may continue to occur with respect to certain existing orders even after the repeal of the Byrd Amendment becomes effective on 1 October 2007.

Finally, in the regional aircraft subsidy cases (Canada—Aircraft Credits and Guarantees and Brazil—Aircraft)[38] brought by Canada and Brazil against each other, the DSB authorized retaliation for each side against the other, but retaliatory measures have never been imposed as the two sides continue to seek a negotiated settlement to the dispute.

Implications for Panel Reform

Consideration of how the WTO dispute resolution process is perceived and the criticisms to which it has been subjected may provide useful information to policy makers in assessing how the panel process might be improved.

A. General Principles for Reform[39]

In light of the concerns discussed above, we should arguably focus panel reform on a few central issues, such as: (i) the need for panels to exercise restraint and refrain from moving into areas where negotiated rules are unclear, (ii) the need to focus on compliance in cases where the rules are clear and there has been a violation, and (iii) the need to ensure that the capabilities of the system are realistically portrayed and appreciated by Parties.

Encouraging panelists to exercise restraint may be pursued simply through recognition of the dangers inherent in “activism” and “law making,” and in creating a culture among the community of practitioners, WTO officials, and potential panelists that reflects the importance of closely adhering to the terms of relevant agreements and applicable standards of review. More radical proposals – such as altering the negative consensus rule to allow some percentage of DSB Members to block a panel decision – would obviously be much more controversial. In terms of compliance, the Parties to the DSB have already begun consideration of ways to streamline and clarify procedures after a panel has rendered an opinion. Finally, ensuring that the capabilities of the system are realistically assessed may suggest that we should go slowly in pursuing a more “adjudicative” structure for panels – a structure that could inappropriately downplay the continued need for negotiation and diplomatic interchange to achieve resolution of disputes.

B. Specific Proposals for Reform[40]

Concerns such as those set out above may also have implications for specific reform proposals that have been offered to increase the efficiency, consistency and transparency of panels. A few specific proposals are discussed below.

1. Permanent Body of Panelists: One proposal for panel reform that has received quite a bit of attention is the notion of establishing a permanent system of panelists, similar to that existing in the Appellate Body[41]. In light of the challenges facing the overall dispute settlement system, however, there are other considerations that could be brought to bear on the issue.

First, are there not benefits to the current system, whereby countries play an active role in the selection of panelists?[42]4 Since parties to a dispute arguably bear some responsibility for the composition of panels, they may be less inclined to criticize particular panelists for bias, lack of qualifications to hear a particular matter, etc. Certainly, such criticisms would be deflected to some degree to the extent Parties participate in the selection process.

Second, would a permanent body of panelists “put a face” on the panel system that is easier to attack by opponents. Under the current system, there is likely to be a greater diversity of panelists in terms of background, outlook, and experience as parties to a dispute seek to have panelists uniquely appropriate for their particular case, and perhaps favorable to a particular country’s outlook. While this may lead to less consistency, it may also create a less definable target for opponents who want to paint the system as dominated by “international bureaucrats” set on undermining national sovereignty.

Finally, would a permanent system of panelists not raise its own questions as to the ideological bent of panelists? A permanent body might give rise to fewer concerns about the bias of individual panelists against a particular country. While this may be true, a permanent body might be perceived as more ideological and more given to developing the predispositions – whatever they may be – of professional trade officials. Arguably, an expert body might feel more comfortable, and more qualified, than ad hoc panels in venturing into ambiguous areas that are better left to negotiations – exacerbating concerns that panels are “making law.”[43] This is not meant to suggest that these considerations are decisive or would outweigh the arguments in favor of more consistency and professionalism – only that they should be part of the mix in considering reforms[44].

2. Transparency

Many proposals for panel reform have focused on transparency and in some sense these reforms seem obvious. Making the system more open and less mysterious would seem to have obvious benefits, if for no other reason than that it would deprive critics of a powerful argument about democracy and fairness. While the fundamental benefit of transparency seems clear, looking at the issue with an eye toward the challenges facing the dispute resolution system in general does raise some additional considerations. Undoubtedly, many of the groups and individuals that have sought greater access to the WTO have done so out of a legitimate desire to work constructively within the system. The disruption seen at Seattle, however, raises the prospect that certain groups are interested more in destroying than improving the WTO[45].

This fact has implications for reform. Transparency in the context of the dispute resolution process is arguably best focused on two goals: (i) to allow interested groups and individuals to better follow and understand the workings of the system, and (ii) to the extent practicable, to allow greater input that will help elucidate the proper scope and application of WTO agreements. On the other hand, to the extent proposals for reform would heighten opportunities for activists to politicize cases or put extraneous pressure on panelists, the implications for the system may be far less positive.

CONCLIUSION:

The incentive for governments to negotiate and abide by international trade agreements depends in part on the effectiveness of enforcement provisions. Effective enforcement is particularly important for developing countries, as they will rarely be able to exert credible threats against large trading entities that do not abide by the negotiated rules of the game and often will not appear on the ‘radar screen’ of the WTO.

Domestic enforcement is a vital dimension in enhancing the relevance of multilateral commitments to domestic stakeholders (importers, exporters, consumer groups). In most countries, including high income nations, domestic interests are restricted in their ability to contest actions by national government agencies that violate WTO commitments. Civil society has a strong interest in seeking to maximize the extent to which international treaty obligations can be invoked in national legal systems. This will remove a number of layers of uncertainty and complexity associated with bringing cases to the WTO. Strengthening national enforcement mechanisms can help make the WTO a more relevant instrument from an economic development perspective by increasing the ownership of negotiated commitments. It also relaxes the constraint of having to convince one’s government to bring a case to the WTO and will reduce the burden of DSP at the WTO level. The easiest way of making WTO commitments enforceable nationally is to expand on the type of challenge mechanisms that have been introduced in the GPA.

The private sector must play a much greater role in enforcement. In part this can be achieved by

designing domestic legal mechanisms that increase the incentive for them to collect, compile and transmit information on the measures that are being applied by governments, both their own and foreign. Thus, there is a close link to our first point — giving private interests standing in domestic fora (via a general challenge procedure) can be expected to be a great motivator for greater involvement in both the development and enforcement of multilateral disciplines. But greater private sector participation is also vital in order to ensure that developing countries can defend their rights at the WTO level. This upstream dimension of DSP at the WTO is as important as the efficacy of the downstream panel and Appellate Body process.

Developing countries have an interest in re-negotiating the existing legal framework for remedies.

Remedies in the WTO do not guarantee paritas armis among the various players and unless corrective action is taken, developing countries might have even less incentive to submit cases. On this particular issue we side with Bhagwati’s (1999) proposal to opt for re-negotiation of concessions (instead of keeping it as an option) any time a developing country’s claim prevails before the WTO but implementation raises serious political problems.

Finally, we argued in favor of a formal amendment of the DSU with respect to notification of bilateral agreements to the effect that no such agreement will be applied unless previously cleared through the DSB. The reason for this proposal is twofold: when developing countries participate in such deals along with developed countries, because of the inequality of power between the two, they might be forced to non WTO-compatible solutions. On the other hand, when they do not (which is the vast majority of cases) they might see their rights under the WTO contract diminished since the parties to such deals hardly have the incentive to respect MFN.

Bibliography:

Book:

Mitsuo Matsushita, Thomas J Schoenbaun and Petros C. Mavroidis, “The World Trade Organization Law, Practice & Policy”; Pub: Oxford University Press, 2nd Edition; 2005

John H. Jackson Et Al; “Legal Problems of International Economic Relations”; Pub Oxford University Press; Edition 5th; 2008

Prof Raj Bhala;” A treatise on the General Agreement of Tariffs & Trade”; International Trade Law Series; Pub: Thomson Sweets & Maxwell, 2005,

William J. Davey, “Expediting the Panel Process in WTO Dispute Settlement, in The WTO: Governance, Dispute Settlement & Development Countries”; Pub: Thomson Sweets & Maxwell, 3rd Edition 2008

Marion Panizzon, Nicole Pohl and Pierre Sauvé (Edited by);“GATT & the Regulation of International Trade in Services World Trade Forum”; Pub: Cambridge University Press;1st Publication,2008

Anne O Krueger; “The WTO as an International Organization”; Oxford Indian Paperbacks, 1998

David Pal meter & Petros C. Mavroidis; “Dispute Settlement in the WTO Practice and procedure”; 2nd Edition; Cambridge, 2004

Petros C Mavroidis; “The General Agreement on Tariffs & Trade- a Commentary”; Pub: The Oxford Commentaries on the GATT/WTO Agreement; 1st Publication; 2005

Article:

Jeanne J. Grimmett, “Dispute Settlement in the World Trade Organization (WTO): An Overview”; September 7, 2010 CRS Report for Congress Prepared for Members and Committees of Congress.

William J. Davey, “The WTO Dispute Settlement System: The First Ten Years”, 8 J. INT’L ECON. L. 17, 46– 48 (2005)

Tom Ginsburg & Richard H. McAdams, “Adjudicating in Anarchy: An Expressive Theory of International Dispute Resolution”, 45 WM. & MARY L. REV. 1229, 1308– 12 (2004)

James C. Hecht ; “Operation of WTO Dispute Settlement Panels: Assessing Proposals for Reform”; Presented at The First Five Years of the WTO American Bar Association Section of International Law and Practice ; January 20-21, 2000 Georgetown University Law Center.

Joost Pauwelyn; “Enforcement and Countermeasures in the the WTO: The Rules and Rules-Toward a More Collective Approach”, The American Journal of International Law, Volume 94, Issue 2; Apr. ,2000

Dr. Georges T. Labaki; “The Dispute Settlement Process Before The WTO”; The Certified Accountant – October 2004; Issue: 20

 

[1] Stewart-Dawyer, The WTO Dispute Settlement System, 7 ;World Trade Organization, accessed December 1, 2010

 

 

[2] A list of covered agreements is included in Appendix 1 to the DSU

 

 

[3] WTO Bodies involved in the dispute settlement process, World Trade Organization, Jeanne J. Grimmett, “ Dispute Settlement in the World Trade Organization (WTO): An Overview”;September 7, 2010 CRS Report for Congress Prepared for Members and Committees of Congress

 

 

[4] Article IV:3 of the WTO Agreement

 

 

[5] Article 2.1 of the DSU

 

 

[6] Article 2.3 of the DSU

[7] See Article 22.1 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU).

[8] This number refers to the number of panel or panel/Appellate Body reports issued and adopted. Accordingly, cases such as EC—Hormones where two separate panel reports were issued—one for the complaints brought by Canada, EC—Hormones (Canada), and another for the complaints brought by the United States, EC—Hormones (US)—constitute two entries, while cases with multiple complainants such as US—Offset Act (Byrd Amendment) where only one panel report was issued constitute one entry. Mitsuo Matsushita, Thomas J Schoenbaun and Petros C. Mavroidis, “ The World Trade Organization Law, Practice & Policy;Pub: Oxford University Press,2nd Edition;2005,pp1150-1161

[9] Idib,There have been 22 panel reports and 12 Appellate Body reports circulated in compliance proceedings under Article 21.5 of the DSU.

 

 

 

[10] US—Section 110(5) Copyright Act.

 

 

[11] William J. Davey, The WTO Dispute Settlement System: The First Ten Years, 8 J. INT’L ECON. L. 17, 46– 48 (2005) [hereinafter The First Ten Years]

 

 

[12]JOHN H. JACKSON ET AL., “LEGAL PROBLEMS OF INTERNATIONAL ECONOMIC RELATIONS”,pp 284;5th ed. 2008

 

 

[13] Even though the WTO system has faced more challenging cases, the success rate is comparable to the success rate of the GATT dispute settlement system. The First Ten Years, supra note 1, at 48; see ROBERT E. HUDEC, ENFORCING INTERNATIONAL TRADE LAW: THE EVOLUTION OF THE MODERN GATT LEGAL SYSTEM 344– 51 (1991). The success rate in the WTO system is clearly better than the success rate in the International Court of Justice. See, e.g., Tom Ginsburg & Richard H. McAdams, Adjudicating in Anarchy: An Expressive Theory of International Dispute Resolution, 45 WM. & MARY L. REV. 1229, 1308– 12 (2004) (finding a 68% compliance rate, as defined by the authors, for a sample of cases before the International Court of Justice).

 

 

[14] William J. Davey, Evaluating WTO Dispute Settlement: What Results Have Been Achieved Through Consultations and Implementation of Panel Reports?, in THE WTO IN THETWENTY-FIRST CENTURY: DISPUTE SETTLEMENT, NEGOTIATIONS, AND REGIONALISM IN ASIA 98, 102– 07 (Yasuhei Taniguchi et al. eds., 2007) [hereinafter Evaluating WTO Dispute

 

 

[15] See Understanding on Rules and Procedures Governing the Settlement of Disputes arts. 12, 16.4, 17.5, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 2, Legal Instruments— Results of the Uruguay Round, 33 I.L.M. 1125 (1994) [hereinafter DSU].

 

 

[16] Evaluating WTO Dispute Settlement, at 114– 15, 139– 40.

 

 

[17] Appellate Body Report, United States— Section 211 Omnibus Appropriations Act of 1998, WT/DS176/AB/R (Jan. 2, 2002) [hereinafter US— Section 211 Appropriations Act]; Panel Report, United States—  Section 110(5) of the US Copyright Act, WT/DS160/R (June15, 2000) (adopted July 27, 2000) [hereinafter US— Section 110(5) Copyright Act].

 

 

[18] Appellate Body Report, European Communities— Regime for the Importation, Sale and Distribution of Bananas, WT/DS27/AB/R (Sept. 9, 1997).

 

 

[19] Evaluating WTO Dispute Settlement, supra note 4, at 115, 140. The two cases in which the United States has been found to have violated the TRIPS Agreement required Congressional action for implementation, which has not been forthcoming. Id. at 115. The prevailing party in the two cases, the European Union, has never sought authority to retaliate, perhaps because the cases involve a relatively limited amount of trade.

 

 

[20] Idib. at 110.

 

 

[21] Idib. at 113– 14

 

 

[22] William J. Davey, Expediting the Panel Process in WTO Dispute Settlement, in THE WTO: GOVERNANCE, DISPUTE SETTLEMENT & DEVELOPING COUNTRIES 409, 415– 18, 420– 21 (Merit E. Janow, Victoria Donaldson & Alan Yanovich eds., 2008) [Expeditingthe Panel Process].

 

 

[23] Idib. at 418

 

 

[24] Idib. at 419– 20

 

 

[25] Idib. at 421– 30

 

 

[26] See, e.g., Gary G. Yerkey, U.S. Poultry Producers Do Not Plan to Urge U.S. to File Case at WTO over EU Import Ban, INT’L TRADE DAILY (BNA), June 9, 2008 (noting EU failure to comply in the Hormones case). In the DSU reform negotiations, Mexico has been particularly critical of what it calls the “‘fundamental problem’ of the WTO dispute settlement system, namely the ‘period of time which a WTO-inconsistent measure can be in place without the slightest consequences’ to the offending party.” Daniel Pruzin, Mexico Presents ‘Radical’ Proposal for WTO Dispute Resolution Reform, 19 INT’L TRADE REP. (BNA) 1984, 1984 (2002).

 

 

[27] US—FSC, US—Offset Act(Byrd Amendment), US—Section 211 Appropriations Act, US—1916 Act, US—Section 110(5) Copyright Act, US—Upland Cotton, US—Hot-Rolled Steel.

 

 

[28] US—FSC, US—Offset Act(Byrd Amendment), US—Upland Cotton, US—1916 Act.

 

 

[29] Some notable cases where the European Communities has taken significant actions to comply include ECBed Linen, ECTariff Preferences, ECSardines, ECTrademarks and Geographical Indications, and ECExport Subsidies on Sugar. Like the United States, there have been several cases, most notably ECBananas and ECHormones, where the European Communities has experienced residual compliance problems as a result of dissatisfaction by other WTO Members with the actions taken to comply.

 

 

[30] Canada—Periodicals, Canada—Dairy, Canada—Autos, Canada—Pharmaceutical Patents, Canada—Patent Term, and Canada—Wheat Exports and Grain Imports.

 

 

[31] Japan—Alcoholic Beverages II, Japan—Agricultural Products II, and Japan—Apples.

 

 

[32] Japan—Quotas on Laver., Modern GATT Law:; Prof Raj Bhala;” A treatise on the General Agreement of Tariffs & Trade” ; International Trade Law Series; Pub: Thomson Sweets & Maxwell,2005,pp 123- 139

 

 

[33] Australia—Salmon and Australia—Automotive Leather II. As noted previously, a number of developing country WTO Members have also had to comply with adverse or partially adverse rulings in a number of WTO cases and, like their developed country counterparts, have successfully done so in most instances. For example, Argentina has taken action to comply in five cases. Korea has taken actions to comply in five cases, although in one of those cases (Korea – Certain Paper) the steps Korea took to comply were in compliance proceedings under Article 21.5 of the DSU as of 1 March 2007. India has taken action to comply in three cases. Mexico has also taken action to comply in several cases, most notably Mexico—Telecoms, Mexico—Corn Syrup, and Mexico—Anti-Dumping Measures on Rice. Chile, Turkey, Indonesia, and Thailand are other developing countries that have taken actions to comply with adverse WTO rulings. On the other hand, Brazil has still failed to comply with adverse WTO rulings in its long-running dispute with Canada over both countries’ subsidization of their manufacturers of regional aircraft.

 

 

[34] Art 21.5 Panel Report European Communities-Bananas, Recourse to Article 21.5 by Ecuador, WT/DS27/RW/ECU,12 April 1999. No presumption of consistency with WTO  agreements attaches to revised measures under  Article 21.5 Panel Report, European Communities- Bananas-Recourse to Article 21.5 by the European Communities, WT/D27.RW/EEC,12 April 1999

 

 

[35] EC- Harmones, Report of the Appellate Body, 13th February 1998, WT/DS26/AB/R;WT/DS/48/R,PARA.104

 

 

[36] United States—Continued Suspension of Obligations in the EC—Hormones Dispute, Request for the Establishment of a Panel by the European Communities, WT/DS320/6, 14 January 2005; Canada—Continued Suspension of Obligations in the EC—Hormones Dispute, Request for the Establishment of a Panel by the European Communities, WT/DS321/6, 14 January 2005.

 

 

[37] United States-Anti-dumping Measure on certain Hot-Rolled Products from Japan, Report of the Appellate Body, 23 August 2001, WT/DS184/AB/R.

 

 

[38] Canada-Measure Affecting the Export of Civilian Aircraft, Report of the Appellate Body (AB-1999),2 August 1999,WT/DS70/AB/R,para 203

 

 

[39] James C. Hecht ; “Operation of WTO Dispute Settlement Panels: Assessing Proposals for Reform”; Presented at The First Five Years of the WTO American Bar Association Section of International Law and Practice ; January 20-21, 2000 Georgetown University Law Center

 

 

[40] Idib

 

 

[42] Under the DSU, parties to a dispute have the right to object to panelists suggested by the Secretariat. DSU Article 8.6. In cases where the parties cannot agree on the composition of a panel within 20 days, the Director-General determines its composition. Id. at Article 8.7. It has become increasingly common for the parties to fail to reach agreement on a panel’s composition, which, if the trend continues, will to some degree undermine any benefits arising from party participation in the selection process.

[43] In fairness, such concerns would presumably apply equally to the Appellate Body, and it is questionable whether that body has exhibited any particular predisposition, as compared to panels, up until now.

[44] Joost Pauwelyn; “Enforcement and Countermeasures in the the WTO: The Rules and Rules-Toward a More Collective Approach”, The American Journal of International Law, Volume 94, Issue 2;Apr. ,2000,335-347.

[45] Idib

 

 

 

OLD AGE – A Boom/BLESSING OR A DOOM

1. (Old age (also referred to as one’s eld) consists of ages nearing or surpassing the average life span of human beings, and thus the end of the human life cycleEuphemisms and terms for old people include seniors, senior citizens and the elderly.

  1. 2. As occurs with almost any definable group of humanity, some people will hold a prejudice against others—in this case, against old people. This is one form of ageism.
  2. 3. Old people have limited regenerative abilities and are more prone to disease, syndromes, and sickness than other adults. For the biology of ageing. The medical study of the aging process is gerontology, and the study of diseases that afflict the elderly is geriatrics.. )

There is a saying–” Those who knows the mother, knows the world”.

This caption might be true. But, ironically, he who does not care for the mother at least at the old age when she really require and expects actual help and assistance from his son…..what to call him…How to define him and in which language…

Just think and imagine the feelings of old aged persons of and above the age group of 50-60 years, who happens to live separately or away from their son(s).and of course the daughters…

This may happen on various accounts like:

        By virtue of their son living on account of job in some other state or country;

        Or in the course of living away from them though staying in the same city but living on account of their jobs, children’s education, or to be nearer to the place of working;

        may be in the course of love marriages; and

        May be on one or other account or pretext.

In general, it is found that they are not in a position to talk their parents-in particular with his mother; they find no time to visit to the mother’s house, if they stay in the same city, even during holidays, festivals or other festivities, at least to say hello, or to spend a little time to have consonance their aged parents/ to the mother.

Their offerings of excuses include heavy and unbearable job work, over time, late sittings at job work, or that they are not in a position to spare time to come from their place of residence, or other wise engaged, preoccupied on some other work.

It may heartening to hear from others that the so called son and his family members were seen at the restaurants, hotels, or at cinema halls, market places, or at the busy malls etc. The comments of the neighborhood, the relations, and of the friends at this old age found to be unbearable to them. The mother, or of course, the father, make out all sorts of excuses and explanations by supporting their son’s absence. But, the mental agony of the parents, their untold feelings, sleepless nights are and cannot be brought out through pen. Their swallowing of the expressions to cover up their inner feelings, the Atmaxobha  and eyes always searching for their son and to listen to him are all found be a like  their night vision.

The enormous money they possess, the relations they had, the friends, the authority, the power and the status they had, have found to be not coming to their rescue in replacing the sons’ presence with them. The old age homes, other’s counseling’s, etc, will they be of any help to them from making them to feel happy or to come out of their depressions, which I found that no person can recognize, replace , establish or detect.

Sadhana, or as we call, prayer, yoga, meditation, and the like  for Elation and Elevation is found to be the only solution       for the mothers who are neglected and made alone to live by their sons. No smothering words can help in distracting their eyes eagerly looking at the gate side, ears wanting to hear his voice of affection and love,

But, but, but… what. —-what the sin she might have committed to loose all this love and affection from the son? What to write and how to console and convince her about the present position of her son, and his re-thinking of inbuilt imaginations and thoughts; redefining the works, words to suit to his conveniences. These revelations may be with a view to satisfy his wife alone at his cost of life, only to make her believe that he is taking full care, love and affection towards her/his wife. Or his not visiting his mother may also be to make her/his wife believe that he does not care his mother, father , other relations, and that he tries to make her believe that her/his wife’s versions as true and beyond doubt. How to change his mind set up and about misconceptions toward the divine mother.

Many of the people advocate the golden means saying that self effort and fate are like the two wheels of a chariot or are like a pair of scissors.

Whenever defeat stares us in the face, we try to console ourselves by ascribing the failure to our ‘stars’, to predestination or to the result of our deeds in the past lives.

Whatever may be their philosophical connotation, there can be no denying the fact that we ourselves must strive to elevate our lives.

We always adjust to the life’s spring and actions. We must bravely march forward.  We must work with a sense of dedication with immense faith in our self-effort.

There is a saying to the effect that up to the sixth step it is human Endeavour and the seventh is divine favour.  Has anyone in the world ever risen in life without sustained hard work backed by assiduousness and enthusiasm?

Can we ever be successful in any field of life if we idle away our life waiting for fate or fortune?  Such a mentality will convert the man into a coward and a slave to sluggishness.

People commit many mistakes due to their weakness and then put the blame on the stars, fate and luck.  It is said that a man who slipped carelessly and fell down blamed the fate and the ground for his fall.

Try to read their minds with patience, in between the lines and not with severance or in hasty.

Be realistic to understand the situations, the consequences and the sequences that might have erupted from the beginning to the point of separation of lives- of the mother and the son. Just pity the mother, the son also, and for the matters encountered in her life and the dreams about and on the expectations of him she had. Imagine the stamina and the strength she had to sustain the draw backs, the push backs in her life to bring her son to the present position. The kicks of her son on the chest received during the early age as a kid and the joy she might have felt at that age.

And now when her son grew with maturity, in mind and developed his own thought revelations and the actions with self decision making to select and marry his life partner, reside separately and away from the mother, what explanations can any one put before her.

Her reconciliations from his child hood, she, as mother, might have pondered with joy and Jubilations for the first actions of the son, receiving kicks on her chest, and now for the second actions (even imaginable like kicks of words). Who can imagine her feelings and rethinking of the past which are entirely different to her expectations?

She might have become a soft target to her belief or he might have become simpleton? He was rather a hot stuff with sanguine this affair…? Is he became sandpaper or a sandwich in his life and with the life of his mother in the name and style of living separately on one or the other pretext with his family?

Is it due to the love and over helmed affection and sympathy towards his family? Or he has adapted to suit to his convenience to visit the mother and satisfy his other loved ones.

With all the above regurgitates and surmises, still I have a belief that he is a person with sanity and still did not loose love and affection toward his mother, then why and how the situations can be changed and what is the solution to resolve the matter. I have no answer, except to rely on the God.

Even if we concede that there is fate that hinders us from reaching our chosen goals, still we can overcome the fate through our diligence and also by awakening our spiritual strength.  Had there been an omnipotent fate, concepts lie fair and foul, virtues and vices, spiritual strength would have been unheard of.

Human beings are not a mere sod of earth or a log of dead wood.  No one can ever prosper in life if they  harbours the feeling that they are  not responsible for their actions, that it is fate which makes them behave as they does and that they are pushed and pulled helplessly by fate.

He who blindly follows the invisible fate is propelled by extreme ignorance which cannot but precipitates his downfall.

I firmly believe that only he who surrenders himself at God’s feet and prays to God (if your ever believe in God) whole-heartedly can regard himself as a machine which logically smoothers life span in a cognizable manner and the days goes on, and God as the driving force.  Especially noteworthy is the fact that such an individual can do no wrong and can do no harm to others.  This great man will be an embodiment of selflessness always aspiring for the weal and welfare of all in the world. They do not get discouraged or loose heart under any circumstances. They cogitate deeply and some how adjust with the life, and the environmental conditions.

I boldly and with pride ascribe these connotations to the mother, who might have faced and or facing the wrath and the sufferings of the life, that too without even whispering to others.

But, now, at this age, when she requires a helping hand and counseling – the same is missing from her son. Fortune favours the deserving…: Patience pays….But. At what stage?, will it be of any help to her when she can not be in a position to relish, realize, and understand the same, except staring at him and dump founded by the actions of his son.

The GOD – the almighty only shall help the Mother and resolve, if He can.

 

India & Lok Pal Bill

Lok Pal Bill

Bhartendu Yadav

INTRODUCTION:

India is a country where honesty and integrity in public and private life have been glorified and upheld in great epics such as the Vedas, Upanishads and in the books and practices of every religion practiced here. Yet, India today is one of the most corrupt countries in the world.

The basic idea of the Lok Pal is borrowed from the office of ombudsman, which has played an effective role in checking corruption and wrong-doing in Scandinavian and other nations.

Bringing public servants under a scanner which makes them strictly accountable is the start of a movement against corruption in India. And one significant step in attacking the spectre of corruption in India will be the implementation of the lok pal bill. The misdeeds committed during the Emergency remind us of the necessity of including the PM within the purview of the Lokpal.
PRESENT ANTI-CORRUPTION SYSTEMS:
At central Government level, there is Central Vigilance Commission, Departmental vigilance and CBI. CVC and Departmental vigilance deal with vigilance (disciplinary proceedings) aspect of a corruption case and CBI deals with criminal aspect of that case.
Central Vigilance Commission: CVC is the apex body for all vigilance cases in Government of India.
• However, it does not have adequate resources commensurate with the large number of complaints that it receives. CVC is a very small set up with a staff strength less than 200. It is supposed to check corruption in more than 1500 central government departments and ministries, some of them being as big as Central Excise, Railways, Income Tax etc. Therefore, it has to depend on the vigilance wings of respective departments. It directly enquires into a few complaints on its own, especially when it suspects motivated delays or where senior officials could be implicated.
• CVC is merely an advisory body. Central seeks CVC’s advice on various corruption cases. However, they are free to accept or reject CVC’s advice. Even in those cases, which are directly enquired into by the CVC, it can only advise government. CVC mentions these cases of non-acceptance in its monthly reports and the Annual Report to Parliament. But these are not much in focus in Parliamentary debates or by the media.
• Experience shows that CVC’s advice to initiate prosecution is rarely accepted and whenever CVC advised major penalty, it was reduced to minor penalty. Therefore, CVC can hardly be treated as an effective deterrent against corruption.
• CVC cannot direct CBI to initiate enquiries against any officer of the level of Joint Secretary and above on its own. The CBI has to seek the permission of that department, which obviously would not be granted if the senior officers of that department are involved and they could delay the case or see to it that permission would not be granted.CVC does not have powers to register criminal case. It deals only with vigilance or disciplinary matters.
• It does not have powers over politicians. If there is an involvement of a politician in any case, CVC could at best bring it to the notice of the Government. There are several cases of serious corruption in which officials and political executive are involved together.
• It does not have any direct powers over departmental vigilance wings. Often it is seen that CVC forwards a complaint to a department and then keeps sending reminders to them to enquire and send report. Many a times, the departments just do not comply. CVC does not have any really effective powers over them to seek compliance of its orders.
• CVC does not have administrative control over officials in vigilance wings of various central government departments to which it forwards corruption complaints. Though the government does consult CVC before appointing the Chief Vigilance Officers of various departments, however, the final decision lies with the government. Also, the officials below CVO are appointed / transferred by that department only. Only in exceptional cases, if the CVO chooses to bring it to the notice of CVC, CVC could bring pressure on the Department to revoke orders but again such recommendations are not binding.
• Appointments to CVC are directly under the control of ruling political party, though the leader of the Opposition is a member of the Committee to select CVC and VCs. But the Committee only considers names put up before it and that is decided by the Government. The appointments are opaque.
• CVC Act gives supervisory powers to CVC over CBI. However, these supervisory powers have remained ineffective. CVC does not have the power to call for any file from CBI or to direct them to do any case in a particular manner. Besides, CBI is under administrative control of DOPT rather than CVC.
Therefore, though CVC is relatively independent in its functioning, it neither has resources nor powers to enquire and take action on complaints of corruption in a manner that meets the
expectations of people or act as an effective deterrence against corruption.
Departmental Vigilance Wings: Each Department has a vigilance wing, which is manned by officials from the same department (barring a few which have an outsider as Chief Vigilance Officer. However, all the officers under him belong to the same department).
• Since the officers in the vigilance wing of a department are from the same department and they can be posted to any position in that department anytime, it is practically impossible for them to be independent and objective while inquiring into complaints against their colleagues and seniors. If a complaint is received against a senior officer, it is impossible to enquire into that complaint because an officer who is in vigilance today might get posted under that senior officer some time in future.
• In some departments, especially in the Ministries, some officials double up as vigilance officials. It means that an existing official is given additional duty of vigilance also. So, if some citizen complaints against that officer, the complaint is expected to be enquired into by the same officer. Even if someone complaints against that officer to the CVC or to the Head of that Department or to any other authority, the complaint is forwarded by all these agencies and it finally lands up in his own lap to enquire against himself. Even if he recues himself from such inquiries, still they have to be handled by those who otherwise report to him. There are indeed examples of such absurdity.
• There have been instances of the officials posted in vigilance wing by that department having had a very corrupt past. While in vigilance, they try to scuttle all cases against themselves. They also turn vigilance wing into a hub of corruption, where cases are closed for consideration. Departmental vigilance does not investigate into criminal aspect of any case. It does not have the powers to register an FIR. They also do not have any powers against politicians.
• Since the vigilance wing is directly under the control of the Head of that Department, it is practically impossible for them to enquire against senior officials of that department.
Therefore, the vigilance wing of any department is seen to soft-pedal on genuine complaints or used to enquire against “inconvenient” officers.
Central Bureau of Investigation (CBI): CBI has powers of a police station to investigate and register FIR. It can investigate any case related to a Central Government department on its own or any case referred to it by any state government or any court.
• CBI is overburdened and does not accept cases even where amount of defalcation is alleged to be around Rs 1 crore.
• CBI is directly under the administrative control of Central Government.
• So, if a complaint pertains to any minister or politician who is part of a ruling coalition or a
bureaucrat who is close to them, CBI’s credibility has suffered and there is increasing publicperception that it cannot do a fair investigation and that it is influenced to to scuttle these cases.
• Again, because CBI is directly under the control of Central Government, CBI is perceived to have been often used to settle scores against inconvenient politicians.
Therefore, if a citizen wants to make a complaint about corruption by a politician or an official in the Central Government, there isn’t a single anti-corruption agency which is effective and independent of the government, whose wrongdoings are sought to be investigated. CBI has powers but it is not independent. CVC is independent but it does not have sufficient powers or resources.
LOK PAL BILL:
In India, the Jan Lokpal Bill (also referred to as the citizens’ ombudsman bill) is a draft anti-corruption law that would create an ombudsman called the Jan Lokpal; this would be an independent body similar to the Election Commission with the power to prosecute politicians and bureaucrats without prior government permission.
The bill proposes the institution of the office of Lokpal (Ombudsman) at the center and local Lokayukta at the state level. The bill is designed to create an effective anti-corruption and grievance redressal system that effectively deters corruption while providing effective protection to whistleblowers.
As of 2010, India is amongst the most corrupt governments in the world, though one of the least corrupt in South Asia[1][2]. India needs to deal with the malice of corruption and improve governance in Asia’s third-largest economy.
Criminalization of Indian politics is a serious problem.[3][4] In July 2008 The Washington Post reported that nearly a fourth of the 540 Indian Parliament members faced criminal charges, “including human trafficking, immigration rackets, embezzlement, rape and even murder”.[5]
An international watchdog conducted a study on the illicit flight of money from India, perhaps the first ever attempt at shedding light on a subject steeped in secrecy, concludes that India has been drained of $462 billion (over Rs 20 lakh crore) between 1948 and 2008. The amount is nearly 40% of India’s annual gross domestic product[6].
India tops the list for black money in the entire world with almost US$1456 billion in Swiss banks (USD 1.4 trillion approximately) in the form of black money.[7] According to the data provided by the Swiss Banking Association Report (2006), India has more black money than the rest of the world combined.[8][9] Indian Swiss bank account assets are worth 13 times the country’s national debt.[10] Indian black money is sometimes physically transferred abroad.
The CEO of a Mumbai-based equity firm recently told journalists that the money is flown abroad in “special flights” out of Mumbai and Delhi airports to Zurich. Indeed Indians would be the largest depositors of illegal money in Swiss banks, according to sources in the banking industry. The estimated average amount stashed away annually from India during 2002–2006 is $27.3 billion US dollars.[11]
Independent reports have recently calculated India’s traditionally ruling family’s (Gandhi’s) financial net worth to be anywhere between $9.41 billion (Rs 42,345 crore) to $18.66 billion (Rs 83,900 crore), most of it in the form of illegal monies.[12] Harvard scholar Yevgenia Albats cited KGB correspondence about payments to Rajiv Gandhi and his family, which had been arranged by Viktor Chebrikov,[13][14][15] which shows that KGB chief Viktor Chebrikov sought in writing an “authorization to make payments in US dollars to the family members of Rajiv Gandhi, namely Sonia Gandhi, Rahul Gandhi and Paola Maino, mother of Sonia Gandhi” from the CPSU in December 1985. “The recent scams involving unimaginably big amounts of money, such as the 2G spectrum scam, are well known.
It is estimated that more than trillion dollars are stashed away in foreign havens, while 80% of Indians earn less than 2$ per day and every second child is malnourished. It seems as if only the honest people are poor in India and want to get rid of their poverty by education, emigration to cities, and immigration, whereas all the corrupt ones, like Hasan Ali Khan are getting rich through scams and crime. It seems as if India is a rich country filled with poor people,[16]” the organisers of Dandi March II in the United States said.[17]
Despite this, India is sitting on unused foreign aid of over 100,000 crore (US$22.2 billion) reflecting inadequate planning by ministries like urban development, water resources and energy, a report by government auditor Comptroller and Auditor General of India (CAG) has said. “As on March 31, 2010, unutilised committed external assistance was of the order of Rs.1,05,339 crore,” the CAG said in its report tabled in Parliament on 18 March 2011. In fact, the Indian government has paid commitment charges of 86.11 crore (US$19.12 million) out of taxpayer-money during 2009–10 in the form of penalty for not timely utilising the aid approved by multilateral and bilateral lending agencies.[18]
ANTI-CORRUPTION EFFORTS:
  1. Right to information act:-
The Right to Information Act (2005) and equivalent acts in the states, that require government officials to furnish information requested by citizens or face punitive action, computerization of services and various central and state government acts that established vigilance commissions have considerably reduced corruption or at least have opened up avenues to redress grievances. The 2006 report by Transparency International puts India at the 70th place and states that significant improvements were made by India in reducing corruption.
  1. Ombudsmen:-
The LokAyukta is an anti-government corruption organization in the Indian states.[19] These institutions are based on the Ombudsman in Scandinavian countries. An amendment to the Constitution has been proposed to implement the Lokayukta uniformly across Indian States as a three-member body, headed by a retired Supreme Court judge or high court chief justice, and comprise of the state vigilance commissioner and a jurist or an eminent administrator as other members.[20]
Social welfare worker Anna Hazare who is not linked to any political party has forced the Indian Government to notify the Committee for the implementation of the Lokayukta against corruption as an independent body and also giving enough powers to the Lokayukta to also receive corruption complaints against politicians, bureaucrats and even sitting judges. Anna Hazare has achieved this big success through his non-violence measures like fasting till death at the Jantar Mantar place in Delhi Capital City of India . The public also gave nation-wide support to Anna Hazare in his demand for strong and tough anti-corruption law.[21]
  1. Whistleblowers:-
Whistleblowers play a major role in the fight against corruption. India currently does not have a law to protect whistleblowers, which was highlighted by the assassination of Satyendra Dubey. Indian courts are regularly ordering probe in cases of murders or so-called suicide of several whistle blowers. One of the latest case of such murder is of V Sasindran Company Secretary of Palakkad based Malabar Cement Limited, a Government company in Kerala and his two minor children, Kerala High Court ordered CBI probe on 18 February 2011. Initially, CBI showed its unwillingness for probing into such cases citing over-burden as a reason.
THE POSITIVE ASPECTS OF THE LOKPAL BILL:
1. Single point agenda of delivering quick justice. Thus ensuring less corruption.
  1. 2. Seeks to build a better, healthier and civil society in India. A decent comparison of Government’s Lokpal Bill with Civil Society’s Lokpal Bill is done here. It’s a must read and raises several interesting concerns.
  2. 3. Like Supreme Court and Election Commission, they will be completely independent of the governments. No minister or bureaucrat will be able to influence their investigations.
  3. 4. Cases against corrupt people will not linger on for years anymore: Investigations in any case will have to be completed in one year. Trial should be completed in next one year so that the corrupt politician, officer or judge is sent to jail within two years.
  4. 5. The loss that a corrupt person caused to the government will be recovered at the time of conviction.
  5. 6. Beneficiary to People: If any work of any citizen is not done in prescribed time in any government office, Lokpal will impose financial penalty on guilty officers, which will be given as compensation to the complainant.
  6. 7. People could approach Lokpal if ration card or passport or voter card is not being made or if police is not registering your case or any other work is not being done in prescribed time. Lokpal will have to get it done in a month’s time. People can also report any case of corruption to Lokpal like ration being siphoned off, poor quality roads been constructed or panchayat funds being siphoned off. Lokpal will have to complete its investigations in a year, trial will be over in next one year and the guilty will go to jail within two years.
  7. 8. Members of lokpal will be selected by judges and constitutional authorities and not by politicians, so no chances of corrupt lokpal members and if any compliant has been filed against members then investigation will be done in two months.
  8. 9. Lokpal will protect people who are victimized for raising their voice against corruption.
10. Lokpals will not need to take permission for investigating or prosecuting any judge.
11. Investigations of lokpal will be transparent, after the investigation has been done records will be open for public and Punishment has been enhanced in the lokpal.
CONCLUSION:
Among the organs of state, the Judiciary has proved itself to have highest credibility in protecting individual rights. However, due to procedural complexities involved in court cases – right from filing a case to the delivery of final verdict – there are inevitable delays of justice, which often are also denial of justice.
The existing devices for checks on elected and administrative officials have not been effective, as the growing instances of corruption cases suggest. The Centre Vigilance Commission (CVC), CBI etc. have not been able to check the corruption due to their implied and inherent limitation due to which establishment of Lokpal is essential which do not have all such limitations and the burden of CVC, CBI etc. will be reduced and they will be performing their other duties effectively and efficiently.
Therefore, there is a need for a mechanism that would adopt very simple, independent, speedy and cheaper means of delivering justice by redressing the grievances of the people. Examples from various countries suggest that the institution of ombudsman has very successfully fought against corruption and unscrupulous administrative decisions by public servants, and acted as a real guardian of democracy and civil rights.

 


 

 

[1] The Times Of India. http://articles.economictimes.indiatimes.com/2010-12-10/news/27614571_1_corrupt-country-transparency-international-petty-corruption.

 

 

 

[2] business.rediff.com/slide-show/2010/oct/26/slide-show-1-worlds-most-corrupt-nations.htm”..

 

 

 

[3] “A special report on India: The democracy tax is rising: Indian politics is becoming ever more labyrinthine”. The Economist. December 11, 2008.

 

 

 

[4] The criminalisation of Indian democracy (May 2, 2007). “Jo Johnson”. Financial Times. Retrieved 2007-05-12.

 

 

 

[5] Wax, Emily (2008-07-24). “With Indian Politics, the Bad Gets Worse”. Washington Times. Retrieved 2010-04-30.

 

 

 

[6] Prabhakar, Binoy. “Black money trail: ‘India drained of Rs 20 lakh crore during 1948–2008′”. timesofindia.com. http://timesofindia.indiatimes.com/india/Black-money-trail-India-drained-of-Rs-20-lakh-crore-during-1948-2008/articleshow/6946266.cms.

 

 

 

[7] “www.thehindubusinessline.in/2010/08/13/stories/2010081350370900.htm”.

 

 

 

[8] “ibnlive.in.com/news/govt-to-reveal-stand-on-black-money-on-jan-25/141423-3.html”.

 

 

 

[9] “www.currentnewsindia.com/nation-news/govt-to-reveal-stand-on-black-money-on-jan-25.html”.

 

 

 

[10] “www.emirates247.com/news/world/tehelka-says-manorma-group-has-account-2011-02-12-1.355118”.

 

 

 

[11] “indiatoday.intoday.in/site/Story/131970/world/black-money-tax-havens-exposed.html”.

 

 

 

[12] “expressbuzz.com/opinion/columnists/zero-tolerance-secret-billions/236261.html”.

 

 

 

[13] Albats. KGB: The State Within a State. Translated from the Russian by Catherine A. Fitzpatrick. 1995. ISBN 1850439958, ISBN 9781850439950. First edition in 1994, ISBN 0374527385, ISBN 9780374527389.

 

 

 

[14] Rajinder Puri (15 August 2006). “Can Corrupt Politicians Preserve Freedom?”. boloji.com. Retrieved 7 April 2010.

 

 

 

[15] “www.axisglobe.com/article.asp?article=404”.

 

 

 

[16] “business.rediff.com/column/2010/oct/04/guest-india-billionaires-among-a-sea-of-poor-people.htm”.

 

 

 

[17] “thelinkpaper.ca/?p=5316”.

 

 

 

[18] “India sitting over Rs. 1 lakh cr of unused external aid: CAG”. The Hindu (Chennai, India). 18/03/11.

 

 

 

[19]“Karnataka Lokayukta”. National Informatics Center. http://lokayukta.kar.nic.in/.  2010-06-24.

 

 

 

[20] Karnataka Anti-Corruption Laws (Acts)”. National Informatics Center. http://lokayukta.kar.nic.in/acts.htm. Retrieved 2010-06-24.

 

 

 

[21]Lokayukta may get constitutional status”. Deccan Herald. http://www.deccanherald.com/content/78301/lokayukta-may-get-constitutional-status.html. Retrieved 2010-06-30.

 

 

PRIOR RESTRAINT ON MEDIA

What is ‘Prior Restraint?’

The taking of legal action before an anticipated wrongdoing. Remedies to prevent a threatened illegality from taking place include the use of injunction or prohibition and declaration. In English law, an injunction may take the form of either a negative or positive requirement, depending on how best to deal with the illegality. In order to obtain an injunction, the plaintiff must show he has an arguable point of law and that on the balance of convenience an injunction ought to be given.[1]

Prior Restraint is not defined in Indian law and if someone puts a prior restraint it has been held unconstitutional be our own S.C. in cases like Ramesh Thapar v. State of Madras[2], Brij Bhushan v. State of Delhi[3], etc.

“Freedom of expression – in particular, freedom of the press – guarantees popular participation in the decision and actions of government, and popular participation is the essence of our democracy…” [4]

The Right to freedom of speech and expression is given under Art. 19(1) (a) of our Indian Constitution. It is probably the most universally accepted human right.[5] Freedom of Press is considered as the fourth pillar, it must be protected in every democratic society.  This freedom can only be available in a society where there is a right to free speech and expression. Similarly, the freedom of information can be enjoyed only if there are sources from which information can flow. These sources, again, would be available where there is a right to speech and expression. The freedom of expression and the freedom to receive and impart information are corollary of one another. In fact, there is an overlap between the freedom of expression and the freedom to receive or impart information. The freedom to impart information can be considered as an expression of an opinion, of the informant or of a third person. The seeking of information, on the other hand, precedes the formation of an opinion by the person who seeks the information, and consequently also its expression. But with regard to the press, freedom of expression and information run parallel to each other. While the press might be the medium of expression, someone else might possess the information. Until and unless these two freedoms are exercised together both would be useless. In the case of information the only one who has the right of free distribution of that information is the party who is the author, originator or otherwise the intellectual owner of the information in question. In case of the press, however, the press can express opinions of others also, of course, held in good faith and believed to be true. It is incumbent on the press, with regard to the print media as well as audio-visual media, to impart information and ideas which the public has the right to receive. Otherwise, the press would not be able to play its role of ‘public watch dog’. Freedom of press is conferred on by virtue of article 19 (1) (a). This constitutional provision is getting obsolete in the newly evolved scenario and therefore it needs to be revised. Thus for exercising the freedom of expression one must have the freedom of information. In this regard, the approval of the Freedom of Information Bill, 2000 (Information Bill) by Indian Parliament would be a welcome move.

Prior Restraint in U.S.:

In U.S. prior restraint is a legal term related to ‘censorship’ referring to government actions that prevent communications from reaching the public.

William Blackstone defines “Freedom of Press” as the right to be free from prior restraints. Prior restraint is often considered a particularly oppressive form of censorship in American Jurisprudence because it prevents the restricted material from being heard or distributed at all. Other forms of restrictions on expression (such as suits for libel, slander, defamation, or actions for criminal libel) generally involve punishment only after the offending material has been published. While such punishment might lead to a chilling effect, legal commentators argue that at least such actions do not directly impoverish the marketplace of ideas. Prior restraint, on the other hand, takes an idea or material completely out of the market place. Thus it is often considered to be the most extreme form of censorship.

U.S. Supreme Court has given many landmark judgments regarding the prior restraint. The first notable case in which the United States Supreme Court ruled on a prior restraint issue was, Near v. Minnesota[6]. In that case the Court held prior restraints to be unconstitutional, except in extremely limited circumstances such as national security issues. The ruling came about after Jay Near’s newspaper, The Saturday Press, a small local paper that ran countless exposés of Minneapolis’s elected officials’ alleged illicit activities, including gambling, racketeering, and graft, was silenced by the Minnesota Gag Law of 1925, also known as The Public Nuisance Law. Near’s critics called his paper a scandal sheet, and alleged that he tried to extort money threatening to publish attacks on officials and others. In the Near case the Court held that the state had no power to enjoin the publication of the paper in this way – that any such action would be unconstitutional under the First Amendment. It wrote:

“If we cut through mere details of procedure, the operation and effect of the statute in substance is that public authorities may bring the owner or publisher of a newspaper or periodical before a judge upon a charge of conducting a business of publishing scandalous and defamatory matter — in particular that the matter consists of charges against public officers of official dereliction — and, unless the owner or publisher is able and disposed to bring competent evidence to satisfy the judge that the charges are true and are published with good motives and for justifiable ends, his newspaper or periodical is suppressed and further publication is made punishable as a contempt. This is of the essence of censorship.”

In Nebraska Press Assn. v. Stuart[7] S.C. noted:

“The thread running through all these cases is that prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights. A criminal penalty or a judgment in a defamation case is subject to the whole panoply of protections afforded by deferring the impact of the judgment until all avenues of appellate review have been exhausted. Only after judgment has become final, correct or otherwise, does the law’s sanction become fully operative.

“A prior restraint, by contrast and by definition, has an immediate and irreversible sanction. If it can be said that a threat of criminal or civil sanctions after publication ‘chills’ speech, prior restraint ‘freezes’ it at least for the time.”

Any prior restraint on expression comes to this Court with a ‘heavy presumption’ against its constitutional validity. Carroll v. Princess Anne[8]; Bantam Books, Inc. v. Sullivan[9]. Respondent thus carries a heavy burden of showing justification for the imposition of such a restraint.

This shows the strong later acceptance of what had been a disputed decision when it was first handed down

In the Pentagon Papers case (New York Times Co. v. United States[10]), the Nixon administration sought to enjoin the New York Times and the Washington Post newspapers from publishing excerpts from a top-secret United States Department of Defense history of the United States involvement in the Vietnam War from 1945 to 1971. The government tried to use the “national security” exception that had been suggested in the Near decision. The Supreme Court struck down the injunctions. However, the decision was fragmented, with nine separate opinions being filed in the case. It was not clear at the time what the effect would be on future prior restraint cases.

Prior Restraint in U.K.:

In U.K. historically, restriction of the press has occurred in two ways. The first may be either censorship or mandatory licensing by the government in advance of publication; the second is punishment for printed material, especially that considered by the government to be seditious libel, i.e., material that may “excite disaffection” against constituted authority. Censorship of the press began not long after the invention of the printing press. Pope Alexander VI issued (1501) a notice requiring printers to submit copy to church authorities before publication, in order to prevent heresy. Penalties for bypassing the censors included fines and excommunication. Stronger restrictive measures were taken by the later Tudor and Stuart monarchs, and censorship came to be applied more to political criticism than religious heresy. John Milton in his Areopagitica (1644) attacked the licensing law and called on Parliament to suppress offensive publications after their appearance if necessary. Milton’s objections to prior restraint eventually became a cornerstone of press freedom, but it was not until 1695 that the licensing and censorship laws were abolished. Severe restrictions on the press continued, however, in the form of seditious libel laws under which the government was able to arrest and punish any printer who published material in any way critical of the government.

There are several Acts of the United Kingdom Parliament for the protection of official information, mainly related to national security. The latest revision is the Official Secrets Act 1989(1989 chapter 6), which removed the public interest defence by repealing section 2 of the Official Secrets Act 1911. In 2004, a memo containing details of a possible US bombing of broadcaster Al Jazeera was leaked to the press. Attorney General Peter Goldsmith has warned newspapers that they could be prosecuted under the Official Secrets Act if they publish the contents of the memo, saying “You are reminded that to publish the contents of a document which is known to have been unlawfully disclosed by a crown servant is in itself a breach of section 5 of the Official Secrets Act 1989”.

The Terrorism Act 2006 makes it an offence to “glorify” terrorism. There are concerns that this could limit free speech.

DA-Notices are official but voluntary requests to news editors not to publish items on specified subjects, for reasons of national security.

In 2007/2008 It was announced that the trial of Wang Yam, accused of murdering Allan Chappelow would be held ‘in camera’. This was the first murder trial behind closed doors. The UK press was prohibited from speculating as to the reasons for this order.[11]

In 2008/2009 the press was barred from printing the names of concerned parties in the murder of Baby Peter, a 17 month old boy. Websites which published the names of the defendants and the boy came under police investigation for conducting an “internet hate campaign.” [12]

Thus, in U.K. prior restraint can be imposed on the publications, broadcasting of anything by the media.

Prior Restraint In India:

Freedom of the Press was one of the constitutional guarantees persistently demanded by India’s freedom fighters during British colonial rule. The British masters disdainfully turned down the demand on the ground that abstract declarations of rights are useless, unless there exist the will and the means to make them effective. Not surprisingly after Independence and during the framing of India’s Constitution in the Constituent Assembly, the Founding Fathers attached great importance to Freedom of the Press. They believed that central to the concept of a free press is the freedom of political opinion and at the core of that freedom lies the right to criticise and censure the government. Surprisingly freedom of the press is not specifically mentioned in the Chapter on Fundamental Rights in the Indian Constitution. The omission was noticed and criticised in the Constituent Assembly. Dr. B. R. Ambedkar, the principal architect of the Constitution, assured the members that freedom of the press was included in the guarantee of freedom of speech and expression and it was hardly necessary to provide for it specifically.

This view has been vindicated by the Supreme Court of India. In a series of decisions from 1950 onwards the Supreme Court has ruled that Freedom of the Press is implicit in the guarantee of freedom of speech and expression in Article 19(1) (a) of the Constitution[13]. Thus freedom of the press by judicial interpretation has been accorded constitutional status[14]. This is an instance of Constitutional implication. However there is a strong body of opinion, which favours specific mention of freedom of the press as a fundamental right. No fundamental right guaranteed by the Constitution of India is absolute. Freedom of the press also can be restricted provided three distinct and independent prerequisites are satisfied.

(1)   The restriction imposed must have the authority of law to support it. Freedom of the Press, like any other fundamental right, cannot be curtailed by executive orders or administrative instructions, which lack the sanction of law.

(2)   The law must fall squarely within one or more heads of permissible restrictions specified in Article 19(2), namely, (a) security of the State, (b) sovereignty and integrity of India, (c) friendly relations with foreign States, (d) public order, (e) decency or morality, (f) contempt of court, (g) defamation or (h) incitement to an offence[15]. In its landmark judgment in the case of Sakal Papers[16], the Supreme Court ruled that it is not open to the State to curtail the freedom of the press for promoting the general welfare of a section or a group of people unless its action can be justified by a law strictly falling under clause 2 of Article 19. Freedom of the Press cannot be curtailed on such omnibus grounds as in the interest of the general public as in the case of the freedom to carry on trade, business or profession.

(3)  The restriction must be reasonable. In other words, it must not be excessive or disproportionate. The procedure and the manner of imposition of the restriction also must be just, fair and reasonable[17]

One of the vexed issues before the Court has been that of censorship by way of prior restraint. There is no provision in the Indian Constitution permitting or proscribing censorship. The sting of censorship lies in prior restraint which affects the heart and soul of freedom of the press. Expression is snuffed out before its birth. The communication in question may never see the light of day. Suppression by a stroke of the pen is more likely to be applied by the censoring authorities than suppression through a criminal process and thus there is far less scope for public appraisal and discussion of the matter. That is the real vice of prior restraint and its irresistible attraction to the censor. Is prior restraint intrinsically evil? Is it per se unconstitutional? There is unending debate on this question. In the Japanese Constitution (Article 21) and the German Constitution (Article 5) pre-censorship is prohibited. Again the American Convention on Human Rights (San Jose) 1969 (ACHR) expressly states in Article 13(2) that freedom of expression “shall not be subject to prior censorship”. There was strong American influence in the drafting of the Japanese and German Constitutions after World War II. Yet even in the land of the First Amendment, for which there is more reverence than to the Ten Commandments, and despite the robust American tradition and the thrust of US judicial opinion against censorship, there is no absolute rule against prior restraint. Indeed, its necessity has been recognised, albeit in exceptional cases, by the United States Supreme Court in the seminal case of Near v.Minnesota, the sheet anchor of the opponents of prior restraint. The Court observed that the protection even as to previous restraint is not absolutely unlimited and listed as exceptions obstructions to recruitment during war, publication of military movements, obscenity, incitements to acts of violence and the overthrow by force of orderly government, and words that “may have all the effect of force”[18].

The Supreme Court of India in May 1950 had to resolve the question in Brij Bhushan v. The State of Delhi.[19] Section 7(1)(c) of the East Punjab Safety Act 1949 provided for submission of material for scrutiny if the government was satisfied that such action was necessary for the purpose of preventing or combating any activity prejudicial to public safety or the maintenance of public order. The Court declared the statutory provision in question unconstitutional on the ground that the restrictions imposed were outside the purview of Article 19(2) as it then stood, which did not include public order as a permissible head of restriction. The Court did not rule that prior censorship is per se unconstitutional. Indeed, in 1957 the Court upheld censorship imposed under the Punjab Special Powers (Press) Act 1956 for a temporary period, which provided for a right of representation to the government[20]. It is noteworthy that another statutory provision imposing censorship without any time limit and without providing any right of representation was struck down by the Court in a judgment delivered on the same day.[21]

India’s worst brush with censorship occurred during the spurious emergency declared by the government of Prime Minister Indira Gandhi on 25 June 1975. Censorship of the Press was imposed for the first time in independent India by the promulgation of a Central Censorship Order, dated 26 June 1975. No censorship was imposed during two previous declarations of emergency, in 1962 and in 1971, when the nation was fighting a war. Under the Indian Constitution during an emergency, fundamental rights, including freedom of speech and expression and the freedom of the press, stand suspended. Censorship, which in normal times would be struck down, becomes immune from constitutional challenge. Taking advantage of the emergency, numerous repressive measures were adopted in the form of executive non-statutory guidelines, and instructions were issued by the censor to the press. One of the instructions of the censor was that “nothing is to be published that is likely to convey the impression of a protest or disapproval of a government measure[22].

Consequently anything that smacked of criticism of governmental measures or action was almost invariably banned, even if the criticism was sober and moderate. The censor’s scissors were applied arbitrarily and in a few cases its decisions bordered on the farcical. Quotations from Mahatma Gandhi, Tagore and Nehru were banned. A statement by the Chairman of the Monopolies and Restrictive Trade Practices Commission criticising the working of public sector undertakings was blacked out. Other ludicrous instances are the bans imposed on news about a member of a former royal family, Begum Vilayat Mahal, squatting at New Delhi railway station; a report about junior lawyers marching to the Delhi High Court; a London report of the arrest of a famous Indian actress for shoplifting; and the news about a meeting of the Wild Life Board, which considered the grant of a hunting licence to a certain Maharajah’s brother.[23]

These bans had nothing to do with the security of the State or preservation of public peace and order but reflected the capricious working of the censoring authorities. Some of the censors directives were sinister, like the ones prohibiting any reference to the transfer of State High Court judges, banning publication of judgments of High Courts which ruled against the censor, “killing” news of the opposition of certain State governments to proposed constitutional amendments, banning reports of alleged payoffs made during the purchase of Boeing aircraft and suppressing criticism of family planning programs. The object was not merely withholding of information but manipulation of news and views to legitimise the emergency and make it acceptable. One tragic consequence was that inhuman practices like forcible sterilisation of young men after removing them from buses and other excesses of over-enthusiastic family planning officials came to light much later after the events, by which time family planning had become an anathema to the rural masses. An urgent and important programme suffered a serious setback owing to suppression of freedom of the press by the censor.

The Indian judiciary, especially the State High Courts, displayed commendable courage in striking down the censor’s orders and upheld the right of dissent even during the emergency. The High Court of Bombay in its landmark judgment in Binod Rao v. Masani delivered on 10 February 1976 declared:

It is not the function of the censor acting under the Censorship Order to make all newspapers and periodicals trim their sails to one wind or to tow along in a single file or to speak in chorus with one voice. It is not for him to exercise his statutory powers to force public opinion in a single mould or to turn the Press into an instrument for brainwashing the public. Under the Censorship Order the censor is appointed the nursemaid of democracy and not its gravedigger. · Merely because dissent, disapproval or criticism is expressed in strong language is no ground for banning its publication[24].

The Court, however, cautioned that the voice of dissent cannot take the form of incitement of revolutionary or subversive activities, for then instead of serving democracy it would subvert it. The High Court of Gujarat in its judgment in C. Vaidya v. D Penha castigated the censorship directives for imposing upon the people “a mask of suffocation and strangulation”. In construing the expression “prejudicial report”, the Court observed: “To peacefully protest against any governmental action with the immediate object of educating public opinion and the ultimate object of getting the ruling party voted out of power at the next general elections is not a prejudicial report at all. Such a public education is the primary need of every democracy.[25] These judgments were delivered at a time when “inconvenient” judges during the emergency were transferred from one State to another in India. Notwithstanding this, the High Courts rose to the occasion. Indeed it was their finest hour. In R. Rajagopal v. State of TN[26] the Supreme Court held that neither the government nor the officials who apprehend that they may be defamed, had the right to impose a prior restraint upon the publication of the autobiography of Auto Shankar, a convict serving sentence of death in jail, which was likely to reveal a nexus between criminals and high ups in the police. The Court held that “The remedy of public officials/public figures, if any, will arise only after the publication.

The Court has however accepted prior restraint in the case of exhibition of motion pictures because. it has been almost universally recognised that the treatment of motion pictures must be different from that of other forms of art and expression. This arises from the instant appeal of the motion picture … It, however, emphasised the necessity for a corrective machinery in the shape of an independent tribunal and also a reasonable time limit for the decision of the censoring authorities. In laying down certain guidelines for the censor, the Court was at pains to point out that the “standards must be so framed that we are not reduced to a level where the protection of the least capable and the most depraved amongst us determines what the morally healthy cannot view or read. The standards that we set for our censors must make a substantial allowance in favour of freedom.”[27]

Courts in India have ruled that in adjudging the question of proscription of articles in the press or banning the exhibition of a movie or programs in the TV channels, the standards to be employed must be of reasonable, strong-minded human beings and not those of weak and vacillating minds nor of those who scent danger or perceive hurt and insult in every critical point of view. It is not permissible to stifle all free expression of opinion by imagining lurking dangers in every corner and discovering sharp curves and hairpin bends when all that exists is a straight road. The correct test is: what impression the article or movie as a whole would produce upon a man of ordinary commonsense.[28]

Indian Legislature has passed other legislations regarding the functioning of media:

  • The Press and Registration of Books Act, 1867– This Act regulates printing presses and newspapers and makes registration with an appointed Authority compulsory for all printing presses.
  • The Press (Objectionable Matters) Act, 1951-This enactment provides against the printing and publication of incitement to crime and other objectionable matters.
  • The Newspaper (Prices and Pages) Act, 1956-This statute empowers the Central Government to regulate the price of newspapers in relation to the number of pages and size and also to regulate the allocation of space to be allowed for advertising matter.
  • Defence of India Act, 1962- This Act came into force during the Emergency proclaimed in 1962. This Act aimed at restricting the Freedom of the Press to a large extent keeping in mind the unrest prevailing in India in lieu of the war against China. The Act empowered the Central Government to issue rules with regard to prohibition of publication or communication prejudicial to the civil defence/military operations, prevention of prejudicial reports and prohibition of printing or publishing any matter in any newspaper.

· Delivery of Books and Newspapers (Public Libraries) Act, 1954 – According to this Act, the publishers of books and newspapers are required to deliver, free of cost, a copy of every published book to the National Library at Calcutta and one copy each to three other public libraries specified by the Central Government.

  • · The Working Journalists and other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955 – It lays down the minimum standards of service conditions for newspaper employees and journalists.
  • · Civil Defence Act, 1968 – It allows the Government to make rules for the prohibition of printing and publication of any book, newspaper or other document prejudicial to the Civil Defence.
  • · Press Council Act, 1978 – Under this Act, the Press Council was reconstituted (after 1976) to maintain and improve the standards of newspaper and news agencies in India. Although on one hand, the Constitution confers the fundamental right of freedom of the press, Article 105 (2) provides certain restrictions on the publications of the proceedings in Parliament.

Broadcast – the broadcast media was under complete monopoly of the Government of India. Private organizations were involved only in commercial advertising and sponsorships of programmes. However, in Secretary, Ministry of I&B v. CAB,[29] the Supreme Court clearly differed from the aforementioned monopolistic approach and emphasized that, every citizen has a right to telecast and broadcast to the viewers/listeners any important event through electronic media, television or radio and also provided that the Government had no monopoly over such electronic media as such monopolistic power of the Government was not mentioned anywhere in the Constitution or in any other law prevailing in the country.

  • · The Broadcasting Code – adopted by the Fourth Asian Broadcasting Conference in 1962 listing certain cardinal principles to be followed buy the electronic media, is of prime importance so far as laws governing broadcast medium are concerned.
  • · Cable Television Networks (Regulation) Act, 1995 – basically regulates the operation of Cable Television in the territory of India and regulates the subscription rates and the total number of total subscribers receiving programmes transmitted in the basic tier.
  • · Direct-to-Home Broadcasting – Direct-to-Home (DTH) Broadcasting Service, refers to distribution of multi-channel TV programmes in Ku Band by using a satellite system and by providing TV signals directly to the subscribers’ premises without passing through an intermediary such as a cable operator. The Union Government has decided to permit Direct-to-Home TV service in Ku band in India.[30]

Conclusion:

In keeping with its affirmation that freedom of expression is “one of the essential foundations of a [democratic] society”, the Court has clearly shown a preference for freedom of press. But this preference has many a times been a bane to our society; take for instance the 26/11 Mumbai Terror attack, Indian media failed to rise to the occasion, it was a tragedy that unfolded in Mumbai for 48 hrs but channels didn’t appear somber and regulated.
Instead, they were over-excited and showing everything as if it was a ‘live war reporting’ though wars isn’t reported in this manner either. There were alerts, flashes, scrawls and breaking new for 50 hrs.
The aim was to grab eyeballs. Ads were not shown as the viewer could switch to other channel in the meantime. The news channels wanted highest TRP in this troubled times, so that they can later demand higher rates for advertisements and stay up on chart.

Worst was the conduct of the so-called celebrity reporters who wanted their cameramen to zoom on everything as they lay on the ground. A star reporter-cum-anchor spoke lying on the ground to create the impact that he was reporting from warzone.

Others were not sure how to be on the ground and either grotesquely prostrated themselves on laid down on their back or side. The same anchor was drunk when he first appeared in the first hour of the tragedy. In the end I would like to conclude that media has social responsibility on its shoulder and if such instances happen they should not go overboard just for the sake of gaining TRP’s.  They should be curbed from broadcasting each and everything they want to cover, either it should be done morally or a law should be made which should be followed strictly on media which should censor its activities. Take for instance in U.S. they don’t have laws for prior restraint on media but still during 9/11 attack they were not allowed to cover all the activities which happened, this shows that how socially responsible media should be. Thus prior restraint is a need of hour to some extent.

[1] John McEldowney, www.answers.com

[2] (1950) S.C.R. 594

[3] (1950) S.C.R, 605

[4] Corazon Aquino

[5] Janis, M., Kay, R., and Bradley, A. (1995), European Human Rights Law, (Oxford: Clarendon Press) P.157.

[6] 283 U.S. 697 (1931)

[7] 427 U.S. 539 (1979)

[8] 393 U.S. 175, 181 (1968)

[9] 372 U.S. 58, 70 (1963)

[10] 403 U.S. 713 (1971)

[11] Regina v. Wang Yam, [2008] EWCA Crim. 269, United Kingdom Court of Appeal, Criminal Division, 28 January 2008

[12] London: BBC. 2008-11-20. Retrieved 2009-05-24.

[13] Article 19 (1) All citizens shall have the right – (a) to freedom of speech and expression.

[14] Brij Bhushan v. State of Delhi, AIR 1950 SC 129; Express Newspapers Ltd. v. Union of India, AIR 1958 SC 578; Sakal Papers Ltd. v. Union of India, AIR 1962 SC 305; Bennett Coleman Co. v. Union of India, AIR 1973 SC 106

[15] Article 19(2) – Nothing in sub-clause (1) shall affect the operation of any existing law, or prevent the State from   making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.

[16] Sakal Papers Ltd. v. Union of India, AIR 1962 SC 305

[17] Chintaman Rao v. State of Madhya Pradesh, AIR 1951 SC 118 at 119; State of Madras v. G. Rao, AIR 1952 SC 196 at 199, 200; Tikaramji v. State of Uttar Pradesh, AIR 1956 SC 676 at 711; Express Newspapers, AIR 1958 SC 578 at 621; State of Bihar v. R.N. Mishra, AIR 1971 SC 1667

[18] (1931) 283 US 697

[19] Supra at 3

[20] Virendra Kumar v. State of Punjab, AIR 1957 SC 896

[21] Ibid, at 903

[22] Sorabjee, Soli J (1977), The Emergency Censorship and the Press in India 1975-77, Central News Agency (Pvt.)   Ltd. p.13

[23] Ibid, at 31, 27, 29

[24] (1976) 78 Bom. L.R. 125 at 169

[25] C. Vaidya v. D’Penha in Sp. CA 141/1976, 22 March 1976 (unreported)

[26] 1994 (6) SCC 632 at 649

[27] K.A. Abbas v. Union of India, AIR 1971 SC 481 at 489, 498

[28] Bhagwati Charan v. Provincial Government, AIR 1947 Nag 1; Ramesh v. Union of India, 1988 (1) SCC 668 at 675; Binod Rao v. Masani, (1976) 78 Bom. L.R. 125 at 169

[29] (1995) 2 SCC 161.

[30] The prohibition on the reception and distribution of television signal in Ku band has been withdrawn by the Government vide notification No. GSR 18 (E) dated 9th January 2001 of the Department of Telecommunications.

Stamping and Proxies in India

stampingMs. Stuti Bansal

The present article deals with proxies and provisions regarding its stamping as per the laws applicable in India.Section 176 of the Companies Act, 1956 discusses and details the aspects of a proxy. According to Section 176 of the Act, any member of a company, entitled to attend and vote at a meeting of the company, shall be entitled to appoint any person (whether a member or not) as his/her proxy to attend and vote instead of himself at a General Meeting. Thus, the section provides for the persons entitled to appoint a proxy and also for persons disallowed to do so.

Interpreting the section, only an individual can be appointed as a proxy. An artificial or judicial person cannot be appointed as a proxy. Any person whether he is member or not can be appointed as a proxy. In other words, to be appointed as a proxy it is not necessary to be a member of the company. A person who is not a member of the Company is equally eligible for appointment as proxy.Another important provision relating to proxies is that, for a proxy to be valid, it should be properly executed and should contain the date of its execution as also should be duly stamped.This brings us to the definition of ‘Duly stamped’.‘Duly stamped’ has been defined under section 2(11) of the Indian Stamps Act, 1899 as the following –
“Duly stamped” as applied to an instrument, means that the instrument bears an adhesive or impressed stamp of not less than the proper amount and that such stamp has been affixed or used in accordance with the law for the time being in force in India.It is thus a requirement that a proxy be duly stamped and cancelled before it is submitted to the Chairman failing which, the proxy is considered invalid. An unstamped proxy is considered invalid and cannot be taken into account.
The Guidance Note on General Meetings, issued by the Institute of Company Secretaries of India (ICSI), in its clause 7.3 provides for the “Stamping of Proxies”. It states that, for a proxy to be valid, it must be adequately stamped in accordance with the rates prescribed under the Indian Stamps Act, 1899 and where a proxy is not duly stamped or effectively cancelled by signing and dating or initialing and dating or in any other effective manner as required by Section 12 of the Act, the proxy will be considered invalid. A vote cast on an unstamped proxy is invalid has been held in In Re. Tata Iron and Steel Co. Ltd.[1]
In this regard, the Hon’ble High Court of Bombay has also held in a case that affixation of a stamp subsequent to execution is not affixation according to law and where a receipt stamp was affixed subsequent to execution but before its production in court it was held to be inadmissible in evidence.[2]
Further, Section 12 of the Indian Stamp Act, 1899 provides that whenever a stamp is affixed on a document or instrument, and is not cancelled, the instrument is considered to be unstamped. Such a document has to be cancelled at the time of the execution of the instrument and in case of instruments already executed, at the time when the stamp is affixed.
12. Cancellation of adhesive stamps
(1) (a) Whoever affixes any adhesive stamp to any instrument chargeable with duty which has been executed by any person shall, when affixing such stamp, cancel the same so that it cannot be used again; and
(b) whoever executes any instrument on any paper bearing an adhesive stamp shall, at the time of execution unless such stamp has been already cancelled in manner aforesaid, cancel the same so that it cannot be used again.
(2) Any instrument bearing an adhesive stamp which has not been cancelled so that it cannot be used again, shall, so far as such stamp is concerned, be deemed to be unstamped.
The person required by sub-section (1) to cancel an adhesive stamp may cancel it by writing on or across the stamp his name or initials or the name or initials of his firm with the true date of his so writing, or in any other effectual manner.Reading together, clauses (a) and (b) of section 12 stated above, it becomes clear that the stamp to be affixed on the proxy must be affixed by the person executing the proxy and should be cancelled by the same person by either signing across or in any other manner appropriate for effective cancellation.
This has also been held in the case of Nuddea Tea Co. Ltd. vs Asok Kumar Saha and Ors.[3]” –
“It is the requirement under Section 12(1)(a) of the Indian Stamp Act, 1899, that whoever affixes any adhesive stamp to any instrument chargeable with duty which has been executed by any person shall, when affixing such stamp, cancel the same so that it cannot be used again. Therefore, under Section 12 of the Indian Stamp Act, 1899, such cancellation of stamp should be made at the time of execution of the document. If any instrument does not bear the requisite stamps and if such stamps are not cancelled, then such instrument shall be deemed to be unstamped.”
In another case, Dayaram v. Chandulal[4], it has been held that when an adhesive stamp affixed to an instrument was cancelled by a third person on a date subsequent to the date on which the instrument was drawn, by putting the date across the stamps, there was no proper cancellation of the stamp.
While there is no fixed format of a valid cancellation of a stamp, the true test for determining the same is whether after the cancellation, the stamp is capable of being used again. After cancellation, the stamp must not be in a position to be used again and the intention to cancel must show the intention to cancel.
Here is it worthwhile to mention that it has been provided under section 18 of the Indian Stamps Act, 1899, that if a proxy sent from abroad is stamped within three months of its receipt in India, it is valid in law.
As far as the mode of cancellation of the stamp affixed on the proxy is concerned, there is no special method provided for the same in any Act. Sub section (3) of section 12 to the Indian Stamp Act, 1899, only provides for guidance on the ways a stamp may be cancelled. The section simply provides that the cancellation should be such as would prevent the stamp being lawfully or conscientiously used again.
Thus, drawing lines across and adhesive stamp, drawing of two parallel lines across three stamps used on a promissory note, and drawing of two lines crossing each other across the face of the stamp, by the person executing the document, have all been held to be effectual cancellation of stamps.

To conclude this discussion, in order that a proxy may be complete and valid, it must be duly stamped by the person executing the proxy and the stamp affixed on it must be cancelled by the same person by either signing across it or cancelling it in any other effectual manner.


 

 

[1] AIR 1928 Bom 80

 

 

 

 

[2] Jetibai v. Ramchandra, 13 Bom 484

 

 

 

[3] 1988 64 CompCas 775 Cal

 

 

 

[4] 27 Bom LR 1118

 

 

Women Reservation Bill : A Step towards Women Empowerment

NEHA JAIN
INTRODUCTION
“Achieving the goal of equal participation of women and men in decision making will provide a balance that more accurately reflects the composition of society and is needed in order to strengthen democracy and promote its proper functioning… Without the active participation of women and the incorporation of women’s perspectives at all levels of decision-making, the goals of equality, development and peace cannot be achieved.”
Fourth World Conference on Women, Beijing, 1995: Article 181
The women reservation bill[1]was first introduced by the Deve Gowda government in 1996 and it can be better understood by looking at a brief overview of what it contains. The main provisions of the Bill, as introduced in the Rajya Sabha in May 2008, are:
Provisions of the bill
(1) The Constitution (108th amendment) Bill, 2008, reserves one-third of Lok Sabha and state assembly seats for women.
(2) One-third of the total number of seats reserved under clause (2) of article 330 (the existing quota for Schedule Castes and Scheduled Tribes) to be reserved for women belonging to the Scheduled Castes or the Scheduled Tribes;
Article 330
(2) The number of seats reserved in any State [or Union territory] for the Scheduled Castes or the Scheduled Tribes under clause (1) shall bear, as nearly as may be, the same proportion to the total number of seats allotted to that State [or Union territory] in the House of the People as the population of the Scheduled Castes in the State [or Union territory] or of the Scheduled Tribes in the State [or Union territory] or part of the State [or Union territory, as the case may be, in respect of which seats are so reserved, bears to the total population of the State [or Union territory].[2]
(3) Reservation of seats to cease to exist or expire after 15 years of the commencement of the constitutional amendment.
(4) To select women candidates through a system of rotation, by which one third of the total number of constituencies to be reserved for women candidates, will be determined through a draw of lots.
(5) To consider extending the reservation to Rajya Sabha and the Legislative Councils of States, without making any definite provisions within the scope of the current Bill.
(6) One of the two LS seats for Anglo-Indians will be reserved for a woman of that community for the first two terms in a block of three elections.
CONSTITUTIONAL AMENDMENTS IN THE BILL
In article 239AA of the constitution in clause (2) in sub-clause (b), for the words “scheduled castes”, the words “the scheduled castes and the women shall be substituted.
After article 330 of the constitution, the following article shall be inserted namely
“330A (1) seats shall be reserved for women in the house of the people.
(2) As nearly as may be, one – thirds of the total number of seats reserved under clause (2) of article 330 shall be reserved for women belonging to the scheduled caste or scheduled tribes, as the case may be.
1n article 331 of the constitution , the following proviso shall be inserted at the end, namely-
“provided that where such nominations are made, in relation to every block comprising of three general elections to the house, one seat shall be reserved for nomination of a woman of anglo-indian community to every house constituted after two general elections and no seat shall be reserved for the women of that community in the house constituted after the third general elections.
After article 332, the following article shall be inserted, namely:
“332A. (1)
In article 333 of the constitution, the following proviso shall be inserted at the end, namely:
“provided that             where such nomination is made, in relation to every block comprising of three
general elections to the assembly , the seat in the assembly constituted after the first general
elections shall be reserved for nomination of a women of anglo-indian community and no seat
shall be reserved for women of that community in the assembly constituted after the second and
third general elections.
After article 334 of the constitution, the following article shall be inserted, namely:
“334A – notwithstanding anything in the foregoing provisions of this part or part VIII, the
provisions of the constitution relating to the reservation of seats for women in the house
of the people, the legislative assembly of a state and the[3]
WOMEN REPRESENTATION IN LOK SABHA: COMPARATIVE STUDY
The bill seeks to empower women and reduce gender inequality. To eliminate gender discrimination and promote female empowerment, women’s decision making capacity must be enhanced within the household, the workplace and the political sphere. For the very purpose of increasing participation of women in Indian parliament and moving them closer to the decision-making process the bill is introduced. Reservation of seats is a basic, consistent and logical step towards both women’s emancipation and inclusive development – particularly for a government which promised that the “equal access to participation and decision making of women in the social, political and economic life of the nation” would be at the heart of its agenda (National Policy for the Empowerment of Women, 2001,goals and objectives, 1.11(iii))[4].It is undoubtedly true that the representation of women in Indian Lok Sabha has been critically low: this can be proved by looking at the no. of women MPs in all the past Lok Sabha sessions, which are hereunder-
Women representation in Lok Sabha[5]
Lok Sabha No. of women members
1st Lok Sabha 23
2nd Lok Sabha 24
3rd Lok Sabha 37
4th Lok Sabha 32
5th Lok Sabha 26
6th Lok Sabha 28
7th Lok Sabha 32
8th Lok Sabha 46
9th Lok Sabha 28
10th Lok Sabha 39
11th Lok Sabha 40
12th Lok Sabha 44
13th Lok Sabha 49
14th Lok Sabha 45
15th Lok Sabha 59
\
As seen from the data above the representation of women in the parliament is not satisfactory. The bill seeks to reserve for women 181 of the 543 seats in the Lok Sabha and 1,370 out of a total of 4,109 seats in the 28 State Assemblies.[6] There is huge debate regarding the bill and whether it should be implemented or not, but before making a judgment as to whether the bill would actually lead to women empowerment or would just prove to be another one of government’s failed attempt to empower women, let us first see the origin of the bill.
CHRONOLOGY
YEAR MAJOR EVENT
1974 The issue of women’s representation in Parliament first raised in a report submitted to the Ministry of Education and Social Welfare by a Committee on Status of Women in India.
1996 INTRODUCTION OF BILL FOR THE 1ST TIME – the Deve Gowda government introduces the women’s reservation bill as 81st constitutional amendment bill.
1998 RE- INTRODUCTION OF THE BILL – The bill is re-introduced in the 12th Lok Sabha as 84th constitutional amendment bill by National Democratic Alliance (NDA) government headed by Atal Bihari Vajpayee
1999 The NDA government re – introduces the bill in the 13th Lok Sabha.
2002 The bill is introduced in the parliament but fails to sail through.
2003 The bill introduced twice in parliament.
2004 The United Progressive Alliance (UPA) government includes it in the common minimum programme.
2005 BJP announced complete support for the Bill.
2008 The government tables it in the Rajya Sabha so that the legislation does not lapse.
2009 The Parliamentary Standing Committee on Law and Justice, and Personnel recommended passage of the Bill in Dec 2009
2010 The bill was cleared by the Union Cabinet on Feb. 25, 2010.

MARCH 9, 2010- The upper house of the Indian Parliament, the Rajya Sabha, passed the bill.
WHY SHOULD THERE BE RESERVATION FOR WOMEN?
“There is nothing so unequal as the equal treatment of unequals”.
– Aristotle
“It is important for women to know that they have to be there (within the political process) where it matters. Whether it is at the rural council, urban council or other levels of policy making, they have to be there to ensure their lot is addressed”.
– Gita Welch, United Nations Development Fund for Women (UNIFEM)
The World Economic Forum’s annual Gender Gap Report (2009) stated that India ranked 114 among the 134 countries surveyed in The Global Gender Gap Index 2009. India has the largest number of maternal deaths in the world and shocking rates of female malnutrition, and a woman in India has lesser chance of survival than in all but 2 of 128 countries. The oft-discussed imbalance in the sex ratio can be attributed – not only to female infanticide, as is often assumed – but to sustained neglect from infancy of female health, nutrition and wellbeing. A girl child is up to 3 times more likely to be malnourished than her brother (UN), and is also significantly more likely to drop out of school before completing a full eight years of education. As well as passive neglect, violence against women and girl children is on the rise: the number of rapes per day has increased by nearly 700 per cent since 1971, and thousands of dowry deaths occur each year (National Crime Records Bureau).[7]
Gender equality and our constitution
Article 15(1) -The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.[8]
Article 15(3) – Nothing in this article shall prevent the State from making any special provision for women and children.[9]
Article 325 – There shall be one general electoral roll for every territorial constituency for election to either House of Parliament or to the House or either House of the Legislature of a State and no person shall be ineligible for inclusion in any such roll or claim to be included in any special electoral roll for any such constituency on grounds only of religion, race, caste, sex or any of them.[10]
Women particularly need reservations because of the following reasons –
  • Women represent half of the population of a country and therefore have the right to half of the seats, since decisions made in parliament have a direct impact on their lives.
  • Women have different social and biological experiences which should be represented in institutions of governance.
  • Women and men have partly conflicting interests.
  • Women in positions of power can inspire more women to place themselves in influential and decision-making roles.
IMPLICATIONS OF THE BILL
  • In the Lok Sabha, out of a total of 543 seats, 122 are already reserved for the scheduled castes and tribes (SC/STs). Now a further 181 will be reserved for women, leaving only 282 seats open for the general category. Same is the case in the state assemblies, where out of the 4,109 seats, 1,167 are reserved for SC/STs and 1,370 for women, leaving 2,942 for the general category.[11]
  • Since the ratio of reservation is 1:2, thus in the course of three election terms, in each seat in Lok Sabha and each seat in assemblies, there would be two free terms and one reserved term. Thus in a fifteen year term, each seat will get reserved for women only once as in India elections are held every five years.
  • Reservation for women expected to create equal opportunity for both men and women, Skewed sex ratios (1.06 males per female) may be checked as women get equal status in Society.
POSSIBLE DRAWBACKS OF THE WOMEN RESERVATION BILL
  • Reservation system would directly affect the Indian democratic recipe as instead of promoting equality, it is representing that women are weaker and need to be supported. This may further provoke for the demand of reservation on further caste creed factors which would be an unhealthy practice in the free India.
  • This Bill takes away the democratic right of 33% of the electorate to elect their representatives as after the implementation of bill it became compulsory to fill the reserved seats for women.
  • Gender hatred could be encouraged.
  • Political parties may have to locate women candidates irrespective of the candidate’s vision mismatch with that of the party’s.
  • Powerful male members might be tempted to ‘reserve’ seats for women relatives (and thereby for themselves).
  • Only elite women might stand to gain from the passing of this Bill Further discriminating against the under – represented and the marginalized.
  • It is not guaranteed that benefits are received by the socially backward and underprivileged women, who really need them.  Excellence never requires reservation. Efficient educated women will make way on their own to the politics. By raising the concept of reservation in every other sector we are just suppressing the actual intellects. Let the people come to politics, administrative service, and army on the basis of their caliber rather than on sex, caste or religion.
  • · This Bill takes away the democratic right of 33% of the electorate (22 crore people) to elect their representatives. It restricts the choice of both men and women in those constituencies. The state has no right to limit the pool of representatives available to the public to choose from. This is against all democratic principles of free choice.
    This takes away the democratic right of about 11 crore men to contest in elections, thus imparting a severe blow to the health of democracy in India. This is against the fundamental rights of 11 crore men. It violates the right to equality guaranteed under the constitution
  • · The number 33 % is totally arbitrary and no justification has been provided. Even in advanced democracies like US and UK, where most women are already empowered, the number of women in legislature is less than 20%.
  • · This bill suggests a rotation system which would be determined by draw of lots, in such a manner that a seat would be reserved only once in a block of three general elections. This is a serious flaw, insofar as it mechanically provides for entry of women members to fill one-third of vacancies in Lok Sabha and Vidhan Sabhas. This subverts the democratic process which is all about free choice vis-à-vis a mechanical action/ process..
    8. The concept of reservation is an insult to women and their capability. It is an admission on her part of her inferiority. It gives the impression that women are incapable of competing with men and hence need protection and a support structure to enter public offices of parliament and state legislatures. In India, women have always been side-by-side with men in council as well as in battles.
  • · This law perpetuates gender discrimination. To seek any form of preferential treatment would be to violate the Integrity of the universal demand of Indian women for absolute equality of political status.
  • § Rather than taking a judicious and considered approach towards the issue, which normally expected during the legislative process, the current Bill builds on gender stereotypes and makes several deeply flawed assumptions such as:
  • § Women only vote for other women – More than 50% of the women exercised their franchise in the General Election of 2004 and elected their representatives, both men and women.
  • § Men cannot represent women’s interests – Men have always been more sympathetic to women and this has been proved beyond doubt in the last 60 years with women being empowered with legislations and policies of special significance. Female literacy rate, employment and political empowerment have happened without any reservations.
  • § Forcing more women on the electorate is women empowerment – Forcing more women in the parliament through undemocratic means will only serve to undermine the legitimacy and efficacy of the elected women representatives.
  • § All women are under-privileged – A gross generalization is made that all women are under-privileged, deprived and discriminated. That women are a homogenous group and there are no differences in terms of social status, education, etc. and hence, an across the board reservation system is needed. This major flaw would be misused by upper caste and upper class women to dominate lower class/ caste women. Thus, the really needy women would continue to be oppressed while the creamy layer among women would become richer and powerful.
  • § All men are privileged – Similarly, a gross generalization is made that men are a homogenous group and are all privileged and have a natural advantage over women.
  • § Women are disadvantaged – Assumption is made that women have no natural advantages over men. That, the society discriminates only women and not men. It does not recognize the natural and societal advantages that women have got in terms of moral superiority, greater faith and sympathy.
  • § Reservation is indispensable – The bill does not recognize the fact that there have been many women who made it to high public offices and there have been many women Chief Ministers and a Prime Minister. Right now, we have a Woman President and a Woman Speaker. They all assumed office through their own efforts and without any reservation. The bill is based on the false assumption that women need reservation to enter high public offices.
POSSIBLE ADVANTAGES OF THE BILL
A WOMAN constitutes a crucial segment of the human resources in a community. Unfortunately, despite their numerical strength, the role of women has been grossly underplayed. It is an established fact that Indian women, in spite of the constitutional and legal safeguards, are still in the process of struggling for equality of status and equality of participation in the development process.
The suppression of women, is not only based on biological differences, but also the ever existent male dominance has added to the disadvantage of women. The relationship between men and women was ‘grounded on force’. The women have always played a passive role in the family hierarchy. Furthermore, the existence of certain socio-economic constraints like poverty, unemployment, exploitation and social taboos prevent women from participating in the political life. They not only continue to remain economically dependent on men, but also have a little say in the distribution of benefits of the system in the society. The situation of women as it exists is one of low status, powerless, endangered by development, suppressed by poverty and oppressed by patriarchy.
This bill would improve the participation of women in the parliamentary affairs of the country and this in turn would have a positive impact on the decision making of the system. Since women had a marginal role in the policy making programs of the country, thus many weaknesses of the system would be eliminated. Issues directly related to the women can now gain more importance and could be dealt more effectively by them.
CONCLUSION
One thing which still remains to be seen is what would happen when the bill is taken to the Lok Sabha. We have crossed 1 small hurdle after 14 years of struggle; but the question still hangs,” will the bill ever become a law?”
The women reservation bill can be seen as a Long Delayed and a Much Needed Step which would prove to be milestone towards the empowerment of women and their participation in the parliament, into the decision-making process where it counts. Although the bill seems to be a good venture for the future but certain questions still remain unanswered.
How far will women’s reservation empower women and the society? Is being a woman enough to “represent” women? In the absence of meaningful inner – party democracy and electoral reforms, is the bill just going to window- dress the republic? Is it fair to expect everything from a Bill that merely seeks to let in more women?
WEBLIOGRAPHY
Sites Referred:
DOCUMENTS REFERRED:
The copy of women reservation bill as presented in the rajya Sabha as on may 8, 2008 from
A policy brief for parliamentarians prepared by CLRA (Centre For Legislative Research and Advocacy) retrieved from http://www.corecentre.co.in/Database/Docs/DocFiles/clra.pdf

[1] Herein after referred to as the ‘bill’
[2] Dr. J.N. Pandey, THE CONSTITUTIONAL LAW OF INDIA, 46th edn., Central Law Agency, p. 691
[3] See : copy of women reservation bill as presented in the Rajya Sabha on may 8 ,2008 retrieved from http://www.prsindia.org/uploads/media/Constitution%20Eighth/1211455181_The_Constitution__One_Hundred_and_Eighth_Amendment__Bill__2008.pdf p.
[4] See http://wcd.nic.in/empwomen.htm, goals and objectives 1.11 (iii)
[5] Manorama Yearbook 2010, Malyala Manorama, 45th edn.,p. 934
[8] Dr. J.N. Pandey, THE CONSTITUTIONAL LAW OF INDIA, 46th edn., Central Law Agency, p. 124
[9] Ibid at 126
[10] Constitution of india

Rape Laws in India

Rape is a stigma which exists in the society from a long time. The dictionary meaning of word rape is “the ravishing or violation of a woman.” The rape victim i.e. a woman as woman cannot commit rape due to biological reasons. She is traumatized after the event; it is very difficult for a woman to come out of this trauma. Rape in India is a cognizable offence. There are many provisions in various Acts. The word rape is legally defined u/s 375 of Indian Penal Code, 1860. It defines the rape and also prescribes its punishment. Whenever a man penetrates or does sexual intercourse with a woman without her consent or will it amounts to rape. Penetration here means that only a slightest of the touch of penis to vagina amounts to rape, unruptured hymen of woman does not prove that rape was not committed. There are exceptions to it also i.e. when a man does sexual intercourse with his wife who is above 15 years of age. The rape law under Indian Penal Code had gone through a lot of amendments. In 1983, amendment was made and S. 376(2) i.e. Custodial rape, S. 376(A) i.e. marital rape & S. 376(B to D) i.e. Sexual Intercourse not amounting to rape were added.

U/s 228A of Indian Penal Code, No person can disclose the name of the rape victim and if anybody discloses the name, he shall be punished with either description for a term which may extend to two years and shall also be liable for fine.

U/s 114-A of Indian Evidence Act, presumption can be made as to the absence of consent in certain prosecutions for rape.

U/s 53(1) of Code of Criminal Procedure, When a person is arrested on a charge of committing an offence of such a nature and alleged to have been committed under such circumstances that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence, it shall be lawful for a registered medical practitioner, acting at the request of a police officer not below the rank of sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the person arrested as is reasonably necessary in order to ascertain the facts which may afford such evidence, and to use such force as is reasonably necessary for that purpose.

U/s 164A of Code of Criminal Procedure, provisions for medical examination of rape victim are given.

U/s 327(2) of Code of Criminal Procedure, there should be in camera trial for all rape victims.

The Judiciary in India is burdened with a lot of work and therefore judgment of the rape cases comes very late. Sometimes it comes so late that either of the parties had died. So, there should be speedy trials in rape cases so that the victim gets justice as it is rightly stated that “Justice delayed is justice denied.”

As every coin has two sides, in this case also there are two sides. Many a times girls also make fake complaints just to ruin the life of a boy, sometimes the parents of girl compels her to file a complaint against the boy she loves, as the law shows a lot of sympathy towards the girl. The accused is left with nothing, when the complaint is made his life is ruined irrespective of the fact that he was proved guilty or not. So, in my views there must come an amendment which equalizes the burden of proof on both the sides and the law works smoothly. It should be such that is contradicts the statement i.e. “Law is there for vigilant.”

Introduction:

Rape is a crime, which has a devastating effect on the survivors; it has been described as a “beginning of a nightmare”. The aftershocks include depression, fear, guilt-complex, suicidal-action, diminished sexual interest. etc., “one becomes afraid of’……..writes a victim, “half the human race”. Referring to the pitiable condition of women in society Mr. Justice S. Ahmad observed that “unfortunately, a woman in our country, belongs to a class or group of society who are in a 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”. “Women also have the right to life and liberty; they also have the right to be respected and treated as equal citizens. Their honour and dignity cannot be touched or violated. They also have the right to lead an honorable and peaceful life”.

Rape is a crime against basic human rights and is also violative of the victim’s most cherished of the fundamental rights, normally, the right to life contained in Article 21 .

Incidence and prevalence:

South Africa has the highest per capita rate of reported rapes in the world: 119 per 100000 people, according to the UN. That compares with 30 per 100000 in the US. Analysts and women’s advocacy groups argue South Africa’s total, including unreported rapes could be five to nine times higher .

Police statistics show more than 50000 rapes are reported every year . In 1987 and 1991 number of cases reported were7767 and 9793 respectively. About 26% (11112) increase in number in the year 1992 – (NCRB). There is one rape in every 54 minutes .

As observed by Justice Arjit Pasayat:

” While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female.”

Justice Krishna Iyer has observed in a very famous case of Rafiq v. State :

“A murderer kills the body but a rapist kills the soul.”

What is Rape?

Rape under English law is defined more particularly where the law cover all the aspect of rape. Under the Sexual Offences Act 2003, which came into force in April 2004, rape in England and Wales was redefined from non-consensual vaginal or anal intercourse, and is now defined as non-consensual penile penetration of the vagina, anus or mouth of another person. The changes also made rape punishable with a maximum sentence of life imprisonment. Although a woman who forces a man to have sex cannot be prosecuted for rape under English law, if she helps a man commit a rape she can be prosecuted for the crime (see, for example, the conviction of Claire Marsh in 2001). A woman can also be prosecuted for causing a man to engage in sexual activity without his consent, a crime which also carries a maximum life sentence if it involves penetration of the mouth, anus or vagina. The statute also includes a new sexual crime, called “assault by penetration”, which also has the same punishment as rape, and is committed when someone sexually penetrates the anus or vagina with a part of his or her body, or with an object, without that person’s consent.

Sexual offence act, 2003 states as follows:-

Rape

(1) A person (A) commits an offence if-

(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,

(b) B does not consent to the penetration, and

(c) A does not reasonably believe that B consents.

(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents .

With compare to this law, law of India under penal code not cover the penetration of mouth and if such happened then that not amount to rape under our present law above all in India it is observe by our Hon’ble courts that in case of rape if any woman help to commit such rape she will be not charge for the offence of rape as she help to commit the rape but in England it happens and their punishment are also more than us so any one before committing this must think and in the mind of people there is some fear about law and it’s punishment.

Like every other country, laws relating to rape do exist in India. However, justice is rarely achieved. In most cases, rape victims themselves hesitate to make a complaint due to the stigma attached to it in society. Sometimes, even if a complaint is made, the offender gets away due to wide spread ignorance of the laws relating to the offense.

Rape means an unlawful intercourse done by a man with a woman without her valid consent. (Section 375 of the Indian Penal Code, 1860 )

A man is said to commit “rape” if he has sexual intercourse with a woman under circumstances falling under any of the six following descriptions :-

1. Against her will.

2. Without her consent.

3. 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.

4. With her consent, when the man knows that he 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.

5. 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.

6. With or without her consent, when she is under sixteen years of age.

Explanation: Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

Exception: Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.

AMENDMENTS TO RAPE LAWS IN 1983 were made to address mainly 3 issues :

A. Minimum Punishment in rape cases (IPC Section 376 sub section 1)

B. Special cases of rape (IPC Section 376 subsection 2 a-g )& A)

C. Marital Rape (IPC Section 376 A)

D. Abuse of official power (IPC Section 376,B,C,D)

A. MINIUM PUNISHMENT (Section 376 subsection 1 of Indian Penal Code)

1. Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both : Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.

Issues

Prior to this amendment, minimum punishment wasn’t specified, hence this is commendable, but if the judge decides that there is an adequate reason the punishment can be reduced.

B. SPECIAL CASES OF RAPE like rape of a girl who is below twelve years of age, rape knowing the woman to be pregnant , gang rape, and custodial rape definitions, Specific (and sometimes increased) Punishment in some of these cases Shift of burden of proof to defendant from the victim in some of these cases. (Section 376 subsection 2 (a-g) of Indian Penal Code)

1. Rape of a woman who is under twelve years of age [Sec.376 (2) (f)]

Punishment

Rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.

Issues

Unfortunately other than the increased minimum punishment from 7 years to 10 years, no other special concession is given to Child Rape given the increased trauma for the girl. Since even the minimum punishment can be reduced by the judges, much needs to be done in this area.

2. Rape of a woman, knowing her to be pregnant (Sec.376 Subsection 2- e)

Punishment

Rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.

Exemption from burden of proof if the victim states in court that she did not consent, then the court shall presume that she did not consent and the burden of proving consent shall shift to the accused

3. Gang Rape ( Sec.376 Subsection 2- g)

“Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section. ”

Thus even if five men force a women into having sexual intercourse with only one of them, the remaining four will also be considered to have committed rape under this law. Punishment

Rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.

Exemption from burden of proof :

If the victim states in court that she did not consent, then the court shall presume that she did not consent and the burden of proving consent shall shift to the accused.

4. Custodial Rape: (Sec.376 Subsection 2 a, b, c , d):

Rape committed on a woman in their or their subordinate’s custody by

a) police officer

(i) within the limits of the police station to which he is appointed; or

(ii) in the premises of any station house whether or not situated in the police station to, which he is appointed; or

(iii) on a woman in his custody or in the custody of a police officer subordinate to him;

b) public servant

c) management or the staff of a jail, remand home or other place of custody or a women’s or children’s institution

d) management or on the staff of a hospital

Punishment

Rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine :Provided that the court.

To understand the impact of sexual harassment on women one must listen to the account of its victims as no one conveys the meaning and truth of sexual harassment better than the women who have endured it. In response to the question “What kind of emotional response do eve-teasing /sexual harassment evoke in you”, not a single woman ticked the category of “indifferent”. The survey of the Gender Study Group shows that most women felt disgusted, insulted and scared by any sort of harassment.

Women often internalise male perceptions of sexual harassment and blame themselves for having brought on the harassment. They not only doubt the validity of their own experiences but begin to believe that they themselves must be ‘abnormal’, ‘cheap’, ‘indecent’ or deserving the violence that comes their way.

Sexual harassment is nothing less than the showcasing of male dominance. Given an opportunity, such men (those committing sexual harassment) would try fulfilling their desire. However, it also not true that all cases of sexual harassment are such- where the accused is guilty of conceiving the intention of a sexual intercourse. But it also depends on each individual case and circumstances, because it may well be the case that the woman may also be at fault.

Every 60 minutes, two women are raped in this country. What is more horrendous is that 133 elderly women were sexually assaulted last year, according to the latest report prepared by the National Crime Records Bureau (NCRB). A total of 20,737 cases of rape were reported last year registering a 7.2 per cent increase over the previous year, with Madhya Pradesh becoming the “rape capital” of the country by topping the list of such incidents.

Going by the NCRB statistics, two women are raped in the country every hour. Madhya Pradesh accounted for 14.5 per cent of the total cases (3,010), with West Bengal following with 2,106 such incidents. Records of high incidence in other states include Uttar Pradesh (1,648), Bihar (1,555) and Rajasthan (1,238). The national capital had 598 cases in which 602 women were sexually assaulted.

In its report Crime in India — 2007, the NCRB noted that offenders were known to the victims in as many as 19,188 cases (92.5 per cent). That included 6,902 incidents in which neighbours were involved. Parents or close family members were involved in 405 cases while in 1,448 cases relatives were involved. “Everywhere in this country, over 90 per cent of the victims are raped by person known to them,” a senior police official said.

According to the official statistics of 1991, one woman is molested every 26 minutes. These statistics refer to the reported cases. Whereas, if the unreported cases were to be included, it would be a matter of seconds- rather than minutes. investigation of Most cases are not reported by victims because of various reasons such as family pressures, the manner of the police, the unreasonably long and unjust process and application of law; and the resulting consequences thereof.

In instances where women have reported such illegal and unwelcome behavior, there have been significant victories in the past decade or so. Also considering the fact the sometimes these victories are achieved after a wait of a decade or so.

As Kiran Bedi., Retd. Joint Commissioner, Special Branch has observed:

“The law of rape is not just a few sentences. It is a whole book, which has clearly demarcated chapters and cannot be read selectively. We cannot read the preamble and suddenly reach the last chapter and claim to have understood and applied it.”

In the Mathura rape case , wherein Mathura- a sixteen year old tribal girl was raped by two policemen in the compound of Desai Ganj Police station in Chandrapur district of Maharashtra.

Her relatives, who had come to register a complaint, were patiently waiting outside even as the heinous act was being committed in the police station. When her relatives and the assembled crowd threatened to burn down the police chowky, the two guilty policemen, Ganpat and Tukaram, reluctantly agreed to file a panchnama.

The case came for hearing on 1st June, 1974 in the session’s court. The judgment however turned out to be in favour of the accused. Mathura was accused of being a liar. It was stated that since she 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 namely Tukaram and Ganpat to one and five years of rigorous 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.

When the appeal was made to the Supreme Court, the Senior Counsel “Ram Jethmalani” while defending the accused Policemen divided the concept of consent into two i.e. Express and Implied consent. He said that there was not express consent but it was implied because Mathura raised no alarm, there was no tearing of clothes, no semen on clothes, no cry for help etc, he again said if there had not been any consent, there would have been at least a cry for help. These circumstances are enough to show that there was implied consent. The Supreme Court acquitted both the accused and held that Mathura had raised no alarm; and also that there were no visible marks of injury on her person thereby negating the struggle by her.

The Court in this case failed to comprehend that a helpless resignation in the face of inevitable compulsion or the passive giving in is no consent. However, 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 girl says that she did no consent to the sexual intercourse, the Court shall presume that she did not consent.

In Mohd.Habib Vs State , the Delhi High Court allowed a rapist to go scot-free merely because there were no marks of injury on his penis- which the High Court presumed was a indication of no resistance. The most important facts such as the age of the victim (being seven years) and that she had suffered a ruptured hymen and the bite marks on her body were not considered by the High Court. Even the eye- witnesses who witnessed this ghastly act, could not sway the High Court’s judgment.

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 , held that “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.”

In Delhi Domestic Working Women v. Union of India , the Apex Court laid down the following broad guidelines:

• The complainants of sexual assault cases should be provided with legal representation i.e. they should be provided an advocate who could help her properly.

• Legal assistance will have to be provided at the police station since victim of sexual assault might very well be in a distressed state upon arrival at the police station and guidance of a lawyer at that stage is very necessary.

• The police should be under duty to inform the victim of her right to representation before any questions were asked of her and that the police report should state that the victim was so informed.

• A list of advocates who deal in these cases should be kept at the police station for victims who did not have a particular lawyer in mind or whose own lawyer was unavailable.

• In all rape trials anonymity of victim must be maintained, as far as necessary.

• A “Criminal Injuries Compensation Board” should be established.

• Interim compensation should be given to rape victim even if the case is still going on in the court.

• Medical help should be provided and woman should be allowed to abort the child if she becomes pregnant due to the incidence.

• Compensation should be provided to rape victim to rehabilitate herself.

In B. Gautam v. Shubra Chakraborthy , it was held that Rs. 1000 per month should be given to rape victim as an interim compensation.

In Chairman, Railway Board vs. Chandrima Das , a practicing Advocate of the Calcutta High Court filed a petition under Article.226 of the Constitution of India against the various railway authorities of the eastern railway claiming compensation for the victim (Smt. Hanufa Khatoon) – a Bangladesh national- who was raped at the Howrah Station, by the railway security men. The High Court awarded Rs.10 lacs as compensation.

An appeal was preferred and it was contended by the state that:

a) The railway was not liable to pay the compensation to the victim for she was a foreigner.

b) That the remedy for compensation lies in the domain of private law and not public law. i.e. that the victim should have approached the Civil Court for seeking damages; and should have not come to the High Court under Article.226.

Considering the above said contentions, the Supreme Court observed:

“Where public functionaries are involved and the matter relates to the violation of fundamental rights or the enforcement of public duties, the remedy would be avoidable under public law. It was more so, when it was not a mere violation of any ordinary right, but the violation of fundamental rights was involved- as the petitioner was a victim of rape, which a violation of fundamental right of every person guaranteed under Article.21 of the Constitution.”

The Supreme Court also held that the relief can be granted to the victim for two reasons- firstly, on the ground of domestic jurisprudence based on the Constitutional provisions; and secondly, on the ground of Human Rights Jurisprudence based on the Universal Declaration of Human Rights, 1948 which has international recognition as the ‘Moral Code of Conduct’- adopted by the General Assembly of the United Nation.

Causes of Increased Rape Cases in India:

Rape, molestation and abductions, the crimes are numerous but low conviction rates for the same is one of the major reasons for the growing number of offences against women, point out experts.

“Apart from other factors, the low conviction rate in the cases of rape is the biggest worry we have today. There is hardly any deterrence. Law should provide fast track courts to deal with such cases,” says Girija Vyas, Chairperson, National Commission for Women (NCW).

While there were 37,000 cases of molestation and eve-teasing in 2006-07, the conviction rate for such crimes, is below 30 per cent. For rape it is just a dismal 27 per cent.

Brinda Karat, All India Democratic Women’s Association (AIDWA), member says, “I have raised the issue in the Parliament several times that there is a need to step up conviction rate in rape cases drastically. Poor legal system, wrong understanding of policemen in these cases and lengthy procedures especially in child rape where after horrifying rounds of investigation the victim starts feeling that she is an accused and should not have registered the case, are few reasons for low conviction rate.”

“In every 10 hours, a girl of the age of 1-10 is being raped in India. We are raising this issue and have demanded enforcement of stringent laws by government,” she adds.

Reacting to a recent incident in which a minor was raped by a constable and his accomplice in a moving car in the national capital, Vyas says, “This is a special case and it should be dealt with a fast track court. On many occasions, complains do not get registered on time and then it is very difficult to prove that rape actually happened. It should be registered within 24 hours of the incident.”

The accused believe they can get away with it. Officials are corrupt and easily bribed (some are even committing rapes themselves). Women are shamed and humiliated when they come forward because of the backward notion that it’s the woman’s fault (even when the ‘women’ are young children). If they make a case, it becomes public knowledge and their families and society shun them in many cases as they are then seen as ‘damaged goods’. If unmarried they will have great difficulty getting married. Courts don’t always do justice for the victim and find rapists not guilty for ridiculous reasons.

Predators know this and take advantage of it. Even if they get caught, if they have enough money or influence, nothing will happen to them. A woman would have to turn the case into a media circus to have a chance at justice and 90% of rape victims in India would not do so out of fear and shame .

There is a need for review in certain provisions under various laws related to rape so that victims get justice.

The National Commission for Women has identified nine areas for review . These are:

1. Review of the definition of rape

2. Reduction of procedural delays

3.Uniformity in age of consent under sections 375 and 376 of Indian Penal Code, 1860, to bring it in conformity with the Child Marriage Restraint Act, 1869

4. Whether exception to section 375 should be deleted

5. Whether section 155 clause 4 of the Indian Evidence Act 1872 needs to be amended or deleted.

6. Whether statutory provisions are needed for compensation to the rape victim

7. Whether provisions for counseling legal aid should be made mandatory under laws.

8. Death penalty to persons convicted for rape

9. Recommendation for enhancement of punishment in cases where the accused, with the knowledge of suffering from HIV infection/AIDS, infects the victim as a result of rape.

Conclusion:

The courts and the legislature have to make many changes if the laws of rape are to be any deterrence. The sentence of punishment, which normally ranges from one to ten years, where on an average most convicts get away with three to four years of rigorous imprisonment with a very small fine; and in some cases, where the accused is resourceful or influential- may even expiate by paying huge amounts of money and get exculpated. The courts have to comprehend the fact that these conscienceless criminals- who sometimes even beat and torture their victims- who even include small children, are not going to be deterred or ennobled by such a small time of imprisonment. Therefore, in the best interest of justice and the society, these criminals should be sentenced to life imprisonment.

Law remains but the number of victims (including minor) continues to increase destroying the very soul of the helpless women. The concept of marital rape does not exist in India. Contrary to the popular belief rape is almost never perpetrated for sexual gratification. It is an ‘acts of violence that happens to be expressed through sexual means’.

The Amendment 1983 has brought about some important changes in the existing laws of rape as a response to the growing public opinion demanding more stringent anti rape laws. It amends Section 376 IPC and enhances the punishment of rape it also provides enhanced punishment of minimum of 10 years of imprisonment for police officers or staff of jail, the remand homes or other places of custody established by law. The Act further inserts a new Section 114-A IEA, by raising a presumption as to absence of consent in cases of custodial rape, rape on pregnant women and gang rape at least partially, removed the infirmity from the evidence of a victim of rape that was hitherto unjustly attached to her testimony without taking note of the fact that in India, unlike the occident a disclosure of the girls identity, rehabilitation in society for all times to come and unless her story was painfully true she would not have taken such a grave risk merely to malign the accused.

Severe and certain punishment in a time bound manner, of the rapists has some deterrent value. Arrest alone may not constitute a strong societal response. Lengthy prison sentences have some behavior-altering deterrent values. Many well-known jurists and public men have advocated capital punishment for the criminals who commit rape as it is an offence worse than murder so far as its impact is concerned. Still there is need for amending the anomaly related to the age of consent, and of wife in accordance with the Marriage Act in India.