Category: Legal Articles

PROGRESSIVE ABOLITION OF CHILD LABOUR

Posted on | by Laasya Priya Ponnada | 1 Comment on PROGRESSIVE ABOLITION OF CHILD LABOUR

 “What I am today is because of education and I want every Indian child to be so touched by the light of education”

-Prime Minister Dr.Manmohan Singh.

          Children are the future custodians of all the present philosophies including sovereignty, rule of law, justice, liberty, fraternity and international peace and security.  The human rights jurisprudence categorically recognized the rights of the child.  The Declaration of Geneva in 1924 gave a clarion call that “Mankind owes to the child the best it has to give”. The Universal Declaration of Human rights rightly obliges family, as a fundamental unit of society, to focus on children so as to afford them necessary pre-conditions to growth.  Article 24 of the UN declaration Provides: “Every Child shall have the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State”.  It is now universally recognized that for a comprehensive development of its personality, the child should grow in a family environment and in an atmosphere conducive to care, affection and understanding.

           The Industrial revolution, which led to urbanization, has been responsible for changes in family structure.  The concept of child labour is also directly attributable to the developments in the industrial production process following the industrial revolution.  Labour and human dignity can be considered as purchasable at cheapest possible price.  Poverty of parents led to children offering themselves for work in highly exploitative conditions.  These children of lesser god witness the forfeiture of their childhood without fully knowing themselves the trauma of work life and its impact on their mental and moral development.

Reasons for Development of Child Labour:

          Chronic Poverty is the most important factor for the prevalence and perpetuation of child labour.  Nearly half of the India’s total population subsists below the poverty line.  India stands 2nd position in the employment of child labour while Africa stands in the first position.  In this situation, the child, since its very appearance in the world, is endowed with an economic mission.  Economic compulsions weigh so heavily on poor parents that they do not mind colluding with the child’s employer in violating the laws and placing the child under risks of inhuman employment situation.  Poverty and child labour always beget each other and tend to reinforce each other.  Other reasons are disenchantment with and a lack of faith in the educational system as schooling does not guarantee a job.  There is also a deeply ingrained Indian tradition that a girl child is to work in the house with the mother and the boy is to learn the father’s trade.  Though in the organized and the unorganized sectors there is no dearth of adult labour, employees prefer hiring children as they are more amenable to discipline, too young to organize themselves and fight for their rights, can be paid less and bullied to obedience.  The lack of concern within the community indifference among the middle class adults to their social surroundings and the existence of exploitative elements result in the erosion of the natural rights of the poor children.  The fact that the children cannot speak for themselves makes them easy targets for exploitative working conditions and wages. 

          Still another reason for the ever increasing child labour is said to be, the accelerated pace of mechanization of agriculture which pushes the surplus farm labour to the cities in search of livelihood.  A survey conducted by the commission of child labour in Kolkata revealed that socio-economic conditions of the families compelled children to come in search of employment.

          Analyzing the reasons which prompt the children to work, it was shown by experts that as many as 47.5 percent of child workers did so, not so much because of poverty but because of the fathers force them to leave school and join work while they themselves either sit idle, or want the extra money to satisfy their various addictions.  In some cases, it is reported that the children themselves compare the advantages of continuing education with joining the labour force and decide in favour of the latter because of the dignity, freedom and responsibility which they get as a contributing member of the family.  On the other hand, some children admitted that they pushed into this, and left to themselves they would like to pursue their education.  The increasing number of child labourers also indicates the failure of family planning, especially in the poverty belts.

          In a case of employment of children below 14 years of age in carpet industries in the State of Uttar Pradesh, Supreme Court held that state is under obligation to provide socio-economic justice to the children and render facilities and opportunities for development of their personalities.  In Bandhua Mukti Morcha vs. Union of India, 1997 Lab IC, 2107 the Supreme Court held that basic cause of child labour is poverty instead of total abolition shall have adverse affect and should be banned progressively in a planned manner.

             In Hindustan Times dated 1st August, 1984: Statement made by the Minister of State for labour in the Rajya Sabha, on 30th July, 1984 is published it was stated that there is a concentration of child labour in certain industries such as match works in Tamil Nadu, Carpet industry in Jammu and Kashmir and Uttar Pradesh, State quarries in Madhya Pradesh , diamond cutting in Gujarat, glass and bangle in Uttar Pradesh, tea Plantation in West Bengal and brassware in Uttar Pradesh.

           Samithu Kothari made a study into facet of child labour, the working conditions of children engaged in the match works at Sivakasi in Tamilnadu.  He rightly captioned the work:  “There is blood on those match sticks”.  Blood stains are there, not only on the match-sticks but also on other materials, the carpets in your drawing room, the slabs of slates used in your house, the diamonds adding glow and glory to a well cared figure, the glass and bangles than given glitters to the dress and the body, the brass-ware in your house, and even in the tea you sip”.

VARIOUS ACTIVITIES PERFORMED BY CHILD LABOUR:

Child Labour in the Agricultural Sector:   According to a recent ILO report about 80% child labourers in India are employed in the agriculture sector. The children are generally sold to the rich moneylenders to whom borrowed money cannot be returned.

Street Children : Children on the streets work as beggars, they sell flowers and other items, instead of being sent to school. They go hungry for days to gather. In fact, they are starved so that people feel sorry for them and give them alms.

Bonded Child Labour :  This is also known as slave labour and is one of the worst types of labour for children and adults, alike. In fact, in 1976 the Indian Parliament enacted the Bonded Labour System (Abolition) Act; herein declaring bonded illegal. However, the fact remains is that this system of working still continues. According to certain experts approximately 10 million bonded children labourers are working as domestic servants in India. Beyond this there are almost 55 million bonded child labourers hired across various other industries.

Children Employed At Glass Factories :  According to recent estimates almost 60,000 children are employed in the glass and bangle industry and are made to work under extreme conditions of excessive heat.

Child Labour in Matchbox Factories :  Of the 2,00,000 labour force in the matchbox industry, experts claim that 35% are children below the age of 14. They are made to work over twelve hours a day, beginning work at around 4 am, everyday.

Carpet Industry Child Labour :  According to a recent report by the ILO almost 4,20,000 children are employed in the carpet industry of India.

The Other Industries :  According to researchers there are about 50,000 children employed in the brass industry of India and around the same amount in the lock industry.

          The children of poor parents are more an economic asset than a liability.  When child labour recruiting agents go about in the flood or drought hit areas offering loans, it is not uncommon that poor parents surrender their children to them, by availing of the loan facilities to ensure the survival of the family.  The failure to implement strictly child labour prohibition laws is the non-universalisation of compulsory primary education but with the implementation the Right to Education Act, 2009 this drawback of the proper non implementation of child labour laws shall hope to be overcome in India.

             While Child labour is the product of poverty and unemployment, it further contributes to underdevelopment and unemployment.  It contributes to unemployment, because the existence of child labour, results in the increase of adult unemployment; and to under development, because a child labourer by the time he becomes as adult, is fully burnt out.  The encouragement of child labourers to work and contribute towards the family income, prompts parents to have more children.  Thus child labour defeats the goal of family planning.  Child labour also hinders the prospect of implementing the policy of compulsory primary education which is now made important by the implementation of the Right to Education Act, 2009.

Position in Developed Countries and in India:-

          In the developed countries in the west, child labour could be checked through effective enforcement of ‘Prohibition of Child labour’ laws, and compulsory primary education.  In most developing countries, however, millions of children still work in factories, workshops, agriculture, mines, quarries and service enterprises.  It is estimated that child labour makes up “more than 10% of labour force in some countries of middle east and from 2 to 10% in much of Latin America and some parts of Asia.  The world considers the issue of child labour to be a rather serious one in Sub-Saharan Africa. However, there are a set of experts in Africa who do not consider it to be serious and prefer to sweep it under their carpet in order to look into more ‘serious’ issues. There are still others who prefer to wear a blindfold and believe that child labour issues are far more serious in other nations, whereas it is as good as non-existent in their own nation. However, ILO statistics provide a more serious picture. It states that over 40% of the children of Africa are working. They are mainly working as slaves in private households, apart from other industries. So the African people do not believe it as a serious issue.  While the picture, as we see is grim, yet nothing can really be done as there is no consistent or factual empirical evidence where child labour in Africa is concerned.

          The problem of child labour in India is very acute.  The National Sample survey in 1983 estimated that there were 17.8 million child workers in India in the age group of 5 to 15 years.  Operation research Group placed the figure at 44 million in 1983.  It has been estimated by the Planning commission that by the year 2000, India has 20 million child workers (UNICEF 1994). Recent Survey on Child Labour shows that 10% of the total population in India is child labour and from all the States in India, Andhra Pradesh occupies 1st position with constituting 16% of total child labour is in it.  Mostly working children were belonging to the families of extremely poor.  They work in highly exploitative and stressful conditions including bonding situations.

           China accounts for the third largest number where child labour is concerned. In fact, many think it to be a phenomenon that has just begun to surface. However, the fact is that child labour in China has been there for years. This is so despite that there have been strict official regulations that ban employment of minors. And according to the laws of China, a minor is an individual below the age of sixteen-years. Due to poverty, teenagers and younger children have been migrating to the southern and coastal regions of China. This is because these regions have been developing and provide a lot of opportunities to earn.

Definition of Child Labour:-

          The actual number of child labour vary according to different concepts and definition as to what exactly child labour means.  The National Sample Survey defined “Child Worker as a Person below the age of 14 years, who is wage earner”.  The concern for working children, a Bangalore based Organization, described a child Labourer as a person who has not completed fifteen years of age and is working with or without wage on a part time or full time basis.  It estimated that a number of working children in India is close to 100 million.  Most of the work done by children whether with or without wage does contribute to the economic activity of the household to them.

           Often school going children also will be working as part time workers in some factories.  This also may not be taken into account by the census.  Even child labour is banned in certain industries by enacting specific legal provisions for the abolition of child labour the employers may not reveal to the census enumerators, facts and figures regarding the number of child workers.  Most often parents also collude with the employer lest the child loses the job.  Domestic work such as cleaning, cooking, which is unpaid and is considered unproductive, other domestic works such as grazing cattle sowing, weeding, threshing or assisting the parents in house hold crafts, etc may not be taken into account by the census enumerators.  Other facts such as pledging the labour of the children against a loan, working in road side cafes, automobile workshops, construction sites, etc., also may not come under the purview o f the census.  It may also ignore self-employed children who are working in the areas of shoe-shining, rag–packing, newspaper selling, peanut or fruit vending.  However the estimated data shows that 10% of the total population of India is child labour.  Many steps are being taken by the Indian Government from the pre-Independence period for the eradication of this drastic problem but still now the problem remains unsolved and the number of child labour were growing day-by-day due to poverty.

Legal Steps for the Prevention of Child Labour:-

          To discuss about the child labour prevention laws in a vide way one must go through those laws by dividing the laws from its origin in pre-independence or post-independence periods.  Most of the pre-independence laws prescribed punishment for the child labour to the parents of the child and also employer but the post- independence laws exempted the parents from punishment.

A.Pre-Independence Laws:-

          The origin of statutory protection of child labour in India can be traced back to the Indian Factories Act, 1881.  This law is mainly regulated working hours, rest intervals, minimum wages and nature of work of child labour but it does not prevented the employment of children.

          Later on the Children Act, 1933 was enacted to prohibit the pledging of labour of children below 14 years by parents.  It prescribes Punishment for parents and employer of the child labour.  It imposes minimum fine of Rs. 200 to the employer for employing child labour and also Rs.50 for the parents who pledged their children for the labour.

          In the Year 1938 the Employment of Children Act was enacted to prohibit the employment of children below the age of 14 years in specified hazardous occupations.  This Act specifically prohibits the employment of children below 14 years of age in the railway and other means of transport.

B. Constitutional Provisions:-

          Article 15(3) of the Indian constitution enables the state to make special provisions for women and children.  It contains an exception to prohibition of discrimination on grounds of religion, race, caste, sex, etc as contained in Article 15(1).  Article 23 prohibits traffic in human beings and other forms of forced labour.  It is provided in Article 24 that “no child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment”.

          Apart from the fundamental rights related to children, certain directive principles in the constitution direct the state policy and action in relation to child rights, including employment and education of children.  Article 39 directs the state to so direct its policy “ that the health and strength of workers, men and women, and tender age of children are not abused and that citizens are not forced by economic necessity to enter vocations unsuited to their age or strength” and “ that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that children and youth are protected against exploitation and against moral and material abandonment”. 

          In pursuance to the duty laid down in the above case some of the laws were enacted prohibiting the employment of children below 14 years of age.  However this Article does not prohibit the employment of children in any innocent or harmless job or work.

         The framers of the Constitution realizing the importance of the children and their education have imposed a duty on the State under Article 45 as one of the directive principles of the State Policy to provide free and compulsory education to all children until they complete the age of 14 years within the 10 years from the commencement of the Constitution.  The object was to abolish the illiteracy and child labour from the country.  It was expected that the elected government of the country would honestly implement this directive.  The framers perhaps were of the view that in view of the financial condition of a new state it included it in Chapter IV as one of the directive principles of State Policy.  But the politicians of our country belied the hope of the framers of the constitution.  It is unfortunate that it has taken 52 years from the commencement of the Constitution to initiate some measures by amending the Constitution to start with although 40% of the population is still illiterate and 10% of the total population is working as child labour.

          In the meantime, the Supreme Court in Unnikrishnan case declared that the right to education for the children of the age 6 to 14 years is a fundamental right.  Even after this, there was no improvement.  A demand was being raised from all corners to make education a fundamental right.  Consequently, the government enacted Constitution (86th Amendment) Act 2002 which would make education a fundamental right.  The Constitution (86th Amendment) Act has added a new Article 21A after Article 21 and has made education for all children of the age of 6 to 14 years a fundamental right.  It provides that “the State shall provide free and compulsory education to all children of the age of 6 to 14 years in such manner as the State may, by law, determine”.

C. Post-Constitutional Laws:-

          After attaining the Independence India enacted the Factories Act in the year 1948, under section 19 of this Act Children below the age of 14 years are prohibited from employment in the factories and the employers who are employed such children are liable to be punished with imprisonment or fine or with both. 

          Later on Some of the provisions in the enacted laws like the Plantation Labour Act, 1951; the Mines Act and the Indian Factories Act, 1952; the Motor Transport Act and the Apprentice Act,1961;  the Minimum Wages Act, 1948; the Atomic Energy Act; The Shops and Establishment Act; The Beedies and Cigar Workers (Condition and Employment) Act, 1966 prohibits the employment of children below a certain age.

          In 1986 the Child Labour (Prohibition and Regulation) Act 1986 (CLA) was enacted with a view to rationalizing earlier legislation on child labour, progressive elimination of child labour in hazardous employments, and regulating conditions of child labour in non-hazardous industries.

          In nutshell, the Child Labour Act bans the employment of children below 14 years of age only in certain specified occupations and processes, regulated the conditions of work of children in employments where they are permitted to work; seeks to provide a uniform definition of child in related laws, and prescribes enhanced penalties for employing children in violation of the provisions of this Act and other legislation which prohibit employment of children.  In effect, this does not make any departure from its predecessor law, the Employment of Children Act 1938, so far as abolition of child labour is concerned.

          One major loophole that is visible is that work or process carried on by the occupier with the aid of his family has been taken out of the purview of the Child Labour Act.  Thus, it permits employment of children in hazardous processes, if a process is undertaken by any of their family members.  That is how many clever employers have installed looms from carpet weaving in children’s homes.  Beedies too are largely manufactured in this way.  Matches and fireworks also thrive this way with the aid of child labour.  

          The Child Labour (Prohibition and Regulation) Act, 1986 is now the principal central law relating to employment of child labour.  The Central and “State governments, of late, are showing vigorous concerns for the plight of child labour.   A large project with the help of the United Nations International Children Emergency Fund (UNICEF) is being undertaken by the National Labour Institute, NOIDA for training of labour and factory inspectors for a stricter enforcement of this law.  The whole emphasis is put on the honesty of inspectors and “Punishment includes imprisonment” of erring employers.  It appears that the word “hazardous” is treated purely as having physical implications.  The very concept of child labour snatches away from a child his childhood and should be considered as hazardous and thus violative of Article 24 of the Constitution.   The Child Labour Act fails to take note of the aspect that the working child unknowingly experiences a psychological trauma of adulthood without physically being prepared to bear its onslaught.  It is also incomprehensible why the Act does not even specify the minimum age of employment of children in processes and occupations where the child labour is not prohibited.

D. Precedents:-

                    In People Union for Democratic Rights V. Union of India AIR 1983, Sc 1473, it was contended that the Employment of Children Act ,1938 was not applicable in case of employment of children in the construction work of Asiad Projects in Delhi since construction industry was not a process specified in the schedule to the Children Act.  The court rejected this contention and held that the construction work is hazardous employment and therefore under Article 24 no child below the age of 14 years can be employed in the construction work even if construction industry is not specified in the schedule to the Employment of children Act, 1938.  Expressing concern about the ‘sad and deplorable omission’, Bhagwati,J., advised the State Government to take immediate steps for inclusion of  construction work in the schedule to the Act, and to ensure that the constitutional mandate of Article 24 is not violated in any part of the country.

           In Labour Working on Salal Hydro Project vs. Jammu and Kashmir AIR 1984 SC 177, the Court has reiterated the principle that the Construction work is hazardous employment and children below 14 cannot be employed in this work.       

           A Child is a national asset; it is the duty of the State to look after the child with a view to ensuring full development of his personality.  Emphasizing the significance of the dignity of youth, and childhood in a civilized society, Bhagawati, C.J. observed in Sheela Barse and others vs Union of India and others (1986) 3 SCJ 423 that some years ago our country came out with a National Policy for the welfare of Children which contained the following perambulatory declaration:  “The Nation’s children a supremely important asset.  Their nurture and solicitude are our responsibility.  Children’s programme should find a prominent part in our national plans for the development of human resources, so that our children grow up to become robust citizens, physically fit, mentally alert and morally healthy, endowed with the skill and motivations needed by society.  Equal opportunities for development to all children during the period of growth should be our aim, for this would serve our large purpose of reducing inequality and ensuring social justice”.

Main features of the Supreme Court  in  their Judgment dated 10.12.96 

On 10th December 1996 in Writ Petition (Civil) No.465/1986 the Supreme Court of India, gave certain directions on the issue of elimination of child labour. The main features of judgment are as under:

–        Survey for identification of working children;

–        Withdrawal of children working in hazardous industry and ensuring their education in appropriate institutions;

–        Contribution @ Rs.20,000/- per child to be paid by the offending employers of children to a welfare fund to be established for this purpose;   

–        Employment to one adult member of the family of the child so withdrawn from work and it that is not possible a contribution of Rs.5,000/- to the welfare fund to be made by the State Government;

–      Financial assistance to the families of the children so withdrawn to be paid -out of the interest earnings on the corpus of Rs.20,000/25,000 deposited in the welfare fund as long as the child is actually sent to the schools;

–      Regulating hours of work for children working in non-hazardous occupations so that their working hours do not exceed six hours per day and education for at least two hours is ensured. The entire expenditure on education is to be borne by the concerned employer.

–            The implementation of the direction of the Honourable Supreme Court is being monitored by the Ministry of Labour and compliance of the directions have been reported in the form of Affidavits on 05.12.97, 21.12.1999, 04.12.2000,  04.07.2001 and 04-12-2003 to the Honourable Court on the basis of the information received from the State/UT Governments.   

 

 

The Right of Children to Free and Compulsory Education Act:

          After the enactment of the Constitution (86th Amendment) Act 2002 the State Provided protection to the Children from the age 6 to 14 years from the child labour by providing compulsory education but it has taken another 8 years for the passage of the Right of Children to Free and Compulsory Education Act or Right to Education Act (RTE), which was passes by the Indian Parliament on 4th August 2009, describes the modalities of the provision of free and compulsory education for children between 6 and 14 years in India under Article 21-A of the Indian Constitution.  With the enactment of this legislation India became one of 135 countries to make education a fundamental right of every child when the Act came into force on 1st April 2010.

          The first time in the history of India a law was brought into force by a speech by the Prime Minister.  In his speech, Dr. Manmohan Singh, Prime Minister of India stated that, “We are committed to ensuring that all children, irrespective of gender and social category, have access to education.  An education that enables them to acquire the skills, knowledge, values and attitudes necessary to become responsible and active citizens of India”.

          The RTE Act if implemented properly will be much effective than any other previous laws which were enacted specifically to prohibit the child labour.  It its common sense the Right to Education Act main objective is to provide the free and compulsory education to all the children in India between the aged of 6 and 14 years but it indirectly imposes a duty on the State by the term COMPULSORY that all the children between the age of 6 to 14 years must be surely educated.  So it in an indirect way throw  light on the eradication of the child labour by making education compulsory to all the children between the ages of 6 to 14 years.

COMPULSORY EDUCATION:-

          The Constitution (86th Amendment) Act, 2002 and the Right to Education Act, 2009 specifically provides that it is the mandatory and primary duty of the State to provide free and compulsory education to the children below the age of 6 to 14 years. It is indirectly restricts the children from doing any other activity when they were in the age between 6 to 14 years.  Also it provides for free education where it makes the education to be available to the poor people.  Mostly the child labour were belong the children of the poor people.  Due to their economically backward condition parents were unable to feed the children and the work of the child will also become useful to make their both ends meet in a difficult way.

          The Act clarifies that “Compulsory Education” means obligation of the appropriate government to provide free elementary education and ensure compulsory admission, attendance and completion of elementary education to every child in the six to fourteen years age group. “Free” means that no child shall be liable to pay any kind of fee or charges or expenses which may prevent him or her from pursuing and completing elementary education. 

          The ultimate objective of development of any country must be the improvement of the quality of life of its people.  One of the mechanisms of enhancing the quality of life of its people is acquired by means of education.  The compulsory education provided by the Right to Education Act 2009 to the children between the ages of 6 to 14 years is very much useful to enhance the quality of the people.  Child labour shall be prevented by making use of the compulsory education provision. 

Government Policies:

          So as to be in consonance with the constitutional provisions and the United Nations (UN) Declarations on the Rights of the child, the Government of India adopted the National Policy for Children (NPC) in August 1974.  This Policy provided that “It shall be the policy of the state to provide adequate service to children both before and after birth and through the period of their growth, to ensure their full physical, mental and social development.  The State shall progressively increase the scope of such services so that, within a reasonable time, all children in the country enjoy optimum conditions for their balanced growth.”  This policy does seem to admit that a child is entitle to enjoy his childhood through play, learning, getting a parental emotions, love and nutritional and health care.  Toward this the National Policy envisaged the need for “free and compulsory education for all children upto the age of 14 years, provisions for health and nutritional programmes and services, providing alternative forms of education for children unable to take full advantage of formal school education for whatever reasons, and measures for protecting children against neglect, cruelty and exploitation.”  Ironically however, the Government only lays emphasis on regulation of child labour than concentrating on abolishing it altogether.  By making use of the Right to Education Act, 2009 the provision of compulsory education is very much useful to abolish the child labour by providing free and compulsory education to all the children below the age of 14 years. 

         The provision for regulation of the child labour which is constituted in the Child Labour (Prohibition and Regulation) Act 1986 in present situation shall be need to amend as the Right to education Act enacted in 2009 is providing compulsory education to all the children below the age of 14 years.  At present situation there is no need to regulate the child labour.

          While focusing on the general development action programme, the National Policy envisaged utilization of non-formal education.  The National Commission on Labour also recommended arrangements to combine work with education through non-formal schemes.  It has also provided for linking these programmes with schemes of public libraries.  The policy identified to specific sectors of employment where the incidence of child labour is high.  It involved a six-point package to tackle the problem of child labour.  The government plans to establish special schools in these areas so as to not only provide education and vocational training but also take care of the nutritional care and needs of working children.

          The National Policy on Child Labour (1988) suggested that children employed as part of the family should be treated differently from those outside the family set-up.  Its strategy aimed at including the families of child workers in antipoverty programmes, arranging special programmes for the Scheduled Castes and Tribes whose children have to undertake wage labour and imparting compulsory formal or non-formal education to all children, particularly those employed in hazardous industries.

          The German funded programme, Child Labour Action and Support Project was launched in 1992.  The German Government had given an initial contribution through the International Labour Organisation.

           The Government is also implementing the International Programme for Elimination of Child Labour.  The Programme was launched in January 1933.  33 action programmes under this have been approved and more proposals are under consideration.  One project with an ‘integrated’ approach aims at rehabilitating 5,000 children every year from the carpet trade.  Of course, the Indian Government is spending annually Rs.10 crore on ten national level pilot projects in priority industries to wean away child labour and rehabilitate them.  The government has drafted a Bill to ensure equal wages for the minor and adult workers.  The move meant to make employment of child labour less lucrative.

          One way to minimize the incidence of child labour is to enhance the school enrollment by making proper utilization of the recently enacted Right to Education Act, 2009.  It enables the poor people to access school and attains free education upto the age of 14 years. Another recent initiative of the Indian Government is Sarva Siksha Abhiyan launched in 2001, universalizes the elementary education by community ownership.  Rajiv Vigyan Mission is also helpful to provide education for the needy children.  Rajiv Udyog Mission is taking part in providing employment to the children who are attained 14 years by ensuring sufficient training in the skilled work Project Based Plan of Action envisages starting of projects in areas of high concentration of child labour. Pursuant to this, in 1988, the National Child Labour Project (NCLP) Scheme was launched in 9 districts of high child labour endemicity in the country. The Scheme envisages running of special schools for child labour withdrawn from work. In the special schools, these children are provided formal/non-formal education along with vocational training, a stipend of Rs.100 per month, supplementary nutrition and regular health checkups so as to prepare them to join regular mainstream schools. Under the Scheme, funds are given to the District Collectors for running special schools for child labour. Most of these schools are run by the NGOs in the district.  

Government has accordingly been taking proactive steps to tackle this problem through strict enforcement of legislative provisions along with simultaneous rehabilitative measures. State Governments, which are the appropriate implementing authorities, have been conducting regular inspections and raids to detect cases of violations. Since poverty is the root cause of this problem, and enforcement alone cannot help solve it, Government has been laying a lot of emphasis on the rehabilitation of these children and on improving the economic conditions of their families.  

The coverage of the NCLP Scheme has increased from 12 districts in 1988 to 100 districts in the 9th Plan to 250 districts during the 10th Plan.

 Strategy for the elimination of child labour under the 10th Plan:

        An evaluation of the Scheme was carried out by independent agencies in coordination with V. V. Giri National Labour Institute in 2001. Based on the recommendations of the evaluation and experience of implementing the scheme since 1988, the strategy for implementing the scheme during the 10th Plan was devised. It aimed at greater convergence with the other developmental schemes and bringing qualitative changes in the Scheme. Some of the salient points of the 10th Plan Strategy are as follows:

  • Focused and reinforced action to eliminate child labour in the hazardous occupations by the end of the Plan period.
  • Expansion of National Child Labour Projects to additional 150 districts.
  • Linking the child labour elimination efforts with the Scheme of Sarva Shiksha Abhiyan of Ministry of Human Resource Development to ensure that children in the age group of 5-8 years get directly admitted to regular schools and that the older working children are mainstreamed to the formal education system through special schools functioning under the NCLP Scheme.
  • Convergence with other Schemes of the Departments of Education, Rural Development, Health and Women and Child Development for the ultimate attainment of the objective in a time bound manner.  

The Government and the Ministry of Labour & Employment in particular, are rather serious in their efforts to fight and succeed in this direction. The number of districts covered under the NCLP Scheme has been increased from 100 to 250, as mentioned above in this note. In addition, 21 districts have been covered under INDUS, a similar Scheme for rehabilitation of child labour in cooperation with US Department of Labour. Implementation of this Project was recently reviewed during the visit of Mr. Steven Law, Deputy Secretary of State, from the USA. For the Districts not covered under these two Schemes, Government is also providing funds directly to the NGOs under the Ministry’s Grants-in-aid Scheme for running Special Schools for rehabilitation of child labour, thereby providing for a greater role and cooperation of the civil society in combating this menace. 

Elimination of child labour is the single largest programme in this Ministry’s activities. Apart from a major increase in the number of districts covered under the scheme, the priority of the Government in this direction is evident in the quantum jump in budgetary allocation during the 10th Plan. Government has allocated Rs. 602 crores for the Scheme during the 10th Plan, as against an expenditure of Rs. 178 crores in the 9th Plan. The resources set aside for combating this evil in the Ministry is around 50 per cent of its total annual budget.  

The implementation of NCLP and INDUS Schemes is being closely monitored through periodical reports, frequent visits and meetings with the District and State Government officials. The Government’s commitment to achieve tangible results in this direction in a time bound manner is also evident from the fact that in the recent Regional Level Conferences of District Collectors held in Hyderabad, Pune, Mussoorie and Kolkata district-wise review of the Scheme was conducted at the level of Secretary. These Conferences provided an excellent opportunity to have one-to-one interaction with the Collectors, who play a pivotal role in the implementation of these Schemes in the District. Besides, these Conferences also helped in a big way in early operationalisation of Scheme in the newly selected 150 districts.

                The Government is committed to eliminate child labour in all its forms and is moving in this direction in a targeted manner. The multipronged strategy being followed by the Government to achieve this objective also found its echo during the recent discussions held in the Parliament on the Private Member’s Bill tabled by Sri Iqbal Ahmed Saradgi. It was unanimously recognized therein that the problem of child labour, being inextricably linked with poverty and illiteracy, cannot be solved by legislation alone, and that a holistic, multipronged and concerted effort to tackle this problem will bring in the desired results. 

Forward Steps:-

          The ideal scenario on Child Welfare would be when every child enjoys the fullness of childhood through education, recreation and adequate health facilities.  It is impossible to attain these facilities by the child labour.  All the children were able to enjoy the completeness of childhood only

  • when the true conscience of the nation is awakened;
  • when all the policy makers and the bureaucrats take the issue of child labour seriously and commit themselves to the cause of the holistic development of every child in India;
  • when the employers would not even contemplate the idea of employing a child for any work which might deny the child of a normal childhood;
  • when all the parents will become aware of the jeopardy of child labour and take upon themselves the duty of caring for the physical, social and psychological and mental development of the child;
  • When all the Policies laid down by the Government under Various Plans and Laws were implemented properly ;
  • The government and the legal persons must conduct campaigns to make the people educate about the legal provisions existing for the abolition of the child labour.

     References:

  1. Baland, Jean-Marie and James A. Robinson (2000) ‘Is child labor inefficient?’ Journal of Political Economy 108, 663–679
  2. Basu, Kaushik, and Homa Zarghamee (2009) ‘Is product boycott a good idea for controlling child labour? A theoretical investigation’ Journal of Development Economics 88, 217–220
  3. Bhukuth, Augendra. “Defining child labour: a controversial debate” Development in Practice (2008) 18, 385–394
  4. Emerson, Patrick M., and André Portela Souza. “Is Child Labor Harmful? The Impact of Working Earlier in Life on Adult Earnings” Economic Development and Cultural Change 59:345–385, January 2011 DOI: 10.1086/657125 uses data from Brazil to show very strong negative effects–boys who work before age 14 earn much less as adults
  5. All India Reports 1983, 1984, 1996, 1997.
  6. 10th Indian National Five Year Plan
  7. Humbert, Franziska. The Challenge of Child Labour in International Law (2009)
  8. Humphries, Jane. Childhood and Child Labour in the British Industrial Revolution (2010)
  9. ILO, Investing in every child: An economic Study of the Costs and Benefits of Eliminating Child Labor

10.  www.vvg.nli.org

11.  Kirby, Peter. Child Labour in Britain, 1750-1870 (2003)

12.  labour.nic.in

13.  Ravallion, Martin, and Quentin Wodon (2000) ‘Does child labour displace schooling? Evidence on behavioural responses to an enrollment subsidy’ Economic Journal 110, C158-C175

Impact of International laws on Municipal Laws

Posted on | by Tamojit Chatterjee | Leave a Comment on Impact of International laws on Municipal Laws

Abstract

John F. Kennedy had rightly said, “We prefer world law in the age of self-determination to world war in the age of mass extermination. “

There are many contrasts between the working of Municipal laws and International law and through this project I would like to bring out the impact International law has on the laws governing individual nation states. Firstly, this project will attempt to bring out the major theories propounded in relation to International laws and municipal law. Secondly, it will then proceed to understand the Role of Municipal rules in International Law. Thirdly, the research paper will then tackle the Role of International law before Municipal Law. Finally, the project will highlight the importance of treaties and its effect on the municipal laws. 

 Introduction

Since the dawn of human civilization law has always played a central role in the development of mankind. The idea that order is necessary and chaos inimical to a just and stable existence[1], has always been the central idea of law. Law or the law does not consist of the total number of laws in force. The constituent elements of which the law is made up are not laws, but rules of law or legal principles[2].

Law is territorial in nature.[3] It is because no state in times of peace allows other state or states to prescribe for and exercise powers over persons, events or things within its justification[4]. Thus the Austinian theory of law which says that every law is a direct or circuitous command of the sovereign in the character of a political superior is the basis of what we call Municipal Laws. Thus Municipal law is the law applied within a State. It is also called as ‘lex proprium civitatis’. The Roman called it the jus civile, the corpus juris civilis. It is the law of civitas that is the State.  But Municipal laws proved inadequate in providing a relevant background for an expanding and developing nation. This need was served by the creation and progressive augmentation of jus gentium. This provided simplified rules to govern the relations between foreigners and between foreigners and citizens. Thus this gave rise to the system of what we know as International Law.

International Law consists of those rules which govern sovereign states in their relations and conduct towards each other[5]. The principal subjects of International law are nation states and not individual citizens.[6] International law itself is divided into conflict of laws( or private international law as it is sometimes called) and public international law(usually just termed international law).[7]

Chapter 1: Major Theories Propounded in relation to  International laws and Municipal law

There are has been many theories propounded in relation to International Law and Municipal laws. The most notable of them all will include the Positivist theory and Monist theory. We will be looking at these theories in detail in the following pages. 

Positivism stresses the overwhelming importance of the state and tends to regard International law as founded upon the consent of states[8]. It is actual practice, illustrated by customs and by treaty[9], which formulates the role of International Law, and not formalistic structures, theoretical deductions or moral stipulations. Accordingly when positivists such as Triepel and Strupp consider the relationship of International Law to Municipal law, they do so upon the basis of the supremacy of the state and the existence of wide differences between the two functioning orders. This theory is known as dualism and stresses that the rules of the systems of International Law and Municipal law exist separately and cannot purport to have an effect on, or overrule, the other[10]. 

This is because of the fundamentally different nature of inter-state and intra-state relations and the different legal structures employed on the one hand by the state and on the other hand as between states. Where municipal legislation permits the exercise of International law rules, this is of no sufferance as it were and is an example of the supreme authority of the state within its own domestic jurisdiction, rather than of any influence maintained by International Law within the internal sphere[11]. 

Those writers who disagree with this theory and who adopt the Monist Theory tend to fall into two distinct categories: Those who, like Lauterpacht, uphold a strong ethical position with a deep concern for human rights and, others, like Kelsen who, maintain a monist position on formalistic logical grounds. The monists are united in accepting a unitary view of law as a whole and are opposed to the strict division posited by the positivists[12].

The ‘naturalist’ strand represented in England by Lauterpacht’s works sees the primary function of all law as concerned with the well being of individuals, and advocates the supremacy of International law as the best method available of attaining this. It is an approach characterized by absolute independence of states, and illuminated by faith in the capacity of the rules of International law to imbue the International law to imbue the international order with a sense of moral purpose and justice founded upon the respect for human rights and the welfare of individuals[13].

The method by which Kelsen elucidates his theory of Monism is markedly different and utilizes the philosophy of Kant[14] as its basis. Law is regarded as constituting an order which lays down patterns of behavior that ought to be followed, coupled with provision for sanctions which are employed once an illegal act or course of conduct has occurred or been embarked upon[15]. Since the definition appertains within both the internal sphere and the international sphere, a logical unity is forged[16] and because states owe their legal relationship to one another to the rules of International law, such as the one positing equality, since states cannot be equal before the law without a rule to that effect, it follows that International law is superior to or more basic than municipal law.[17]

A third approach, being somewhat a modification of the dualist position and formulated by Fitzmaurice and Rousseau amongst others, attempts to establish a recognized theoretical framework tied to reality. This approach begins by denying that any common field of operation exists as between International law and Municipal law by which one system is superior or inferior to the other.[18] Each order is supreme in its own sphere, much as French law and English law are in France and England. Just as one cannot talk in terms of the supremacy of French law over English law, but only of two distinct legal systems each operating within its own field, so it is possible to treat International law and Municipal law in the same way. They are both the legal element contained within the domestic and international systems respectively, and they exist within different juridical orders[19].

 Chapter 2: Role of Municipal Rules In International Law                                                                                                    

The general rule with regard to the position of municipal law within the International sphere is that a state which has broken a stipulation of international law cannot justify itself by referring to a breach of an international obligation to argue that the state acted in such a manner because it was following the dictates of its own municipal laws[20]. The reasons for this inability to put forward internal rules as an excuse to evade international responsibility are obvious. Any other situation would permit international law to be evaded by the simple method of domestic legislation.[21]

Accordingly, state practice and decided cases have established this provision and thereby prevented countries involved in International litigation from pleading municipal law as a method of circumventing International law[22]. Article 27 of the . lays down that in so far as treaties are concerned, a party may not to be bound invoke the provisions of its internal  law as justification for its failure to carry out an international agreement, while Article 46(1) provides that a state may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent[23]. The international court considered this provision in Cameroon v Nigeria in the context of Nigeria’s argument that the Moroua Declaration of 1975 signed by the two heads of state was not valid as it had not been ratified.[24] The court also took the view that ‘there is no general legal obligation for states to keep themselves informed of legislative and constitutional developments in other states which are or may become important for the International relations of these states’.[25] The International Court, in the Applicability of the obligation to Arbitrate case,[26]  has underlined ‘the fundamental principle of International law that international law prevails over domestic law’, while Judge Shahabuddeen emphasized in the Lockerbie case[27] that inability under domestic law to act was no defense to non compliance with an International obligation.

However such expressions of the supremacy of International law over municipal law in International tribunals do not mean that the provisions of domestic legislation are either irrelevant or unnecessary.  On the contrary, the role of internal legal rules is vital to the workings of the International legal machine[28]. One of the ways to understand this is by examining municipal laws[29]. A country will thus express its opinion on such vital international matters as the extent of its territorial sea, or the jurisdiction it claims or the conditions for the acquisition of nationality through the medium of its domestic law-feelmaking .Thus, it is quite often that in the course of deciding a case before it, an International court will feel the necessity to make a study of relevant pieces of municipal legislation.

Chapter 3: Role of International law before Municipal Law

The problem of International law within the municipal law system is, however, rather more complicated than the position discussed above, and there have been a number of different approaches to it. States are, of course, under a general obligation to act in conformity with the rules of International law and will bear responsibility for breaches of it, whether committed by the legislative, executive or judicial organs.[30]

In this chapter we will look at the approach adopted by the Common law system most notably the doctrine of Incorporation will be discussed.

The common law system has its roots in the UK’s legal system and it will be unjust to not discuss UK’s position concerning International law’s effect on its Municipal laws.

It is part of the public policy of the UK that the courts should in principle give effect to clearly established rules of International law. Various theories have been put forward to explain the applicability of International law rules within the jurisdiction. One expression of the positivist- individualist position has been the doctrine of transformation. This is based upon the perception of two quite distinct systems of law, operating separately, and maintains that before any rule or principle of International law can have any effect within the domestic jurisdiction, it must be expressly and specifically ‘transformed’ into municipal law by the use of appropriate constitutional machinery, such as an Act of Parliament.[31]

Another approach known as the doctrine of incorporation holds that international law is part of the municipal law automatically without the necessity for the interposition of a constitutional ratification procedure[32]. This doctrine refers to customary international law and different rules apply to treaties.

Customary International Law

It is in this sphere that the doctrine of incorporation has become the main British approach. It is an old established theory dating back to the eighteenth century, owing its prominence at that stage to the considerable discussion then taking place as to the precise extent of diplomatic immunity. In the case of Buvot v. Barbuit[33], Lord Talbot declared unambiguously that ‘the law of nations in its full extent was part of the law of England’, so that a Prussian commercial agent could not be rendered liable for failing to perform a decree. This was followed twenty seven years later by Triquet v. Bath,[34] where Lord Mansfield, discussing the issue as to whether a domestic servant of the Bavarian Minister to Britain could claim diplomatic immunity, upheld the earlier case and specifically referred to Talbot’s statement. This acceptance of customary international law rules as part and parcel of the common law of England, so vigorously stated in a series of Eighteenth century cases, was subject to the priority granted to acts of parliament and tempered by the Principle of Stare Decisis or precedent, maintained by the British courts and ensuring that the judgments of the higher court are binding upon the lower courts of the hierarchical system. Accordingly, a rule of International law would not be implemented if it ran counter to a statute or decision by a higher court.[35]

The basic approach adopted by the majority of common law states is clear, complications have arisen where the country in question has a written constitution. India, whose constitution refers only in the vaguest of terms to the provisions of International law is a perfect example[36]. Art. 253 of the Constitution of India states: “Notwithstanding anything in the foregoing provisions of this chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or body.”

Let’s take a look at a very important case in question, Vishaka v State of Rajasthan[37],

A group of social activists and non-governmental organizations brought as a class action a petition under Art. 32 of the Indian Constitution referring to the Supreme Court’s powers under that provision to issue directions for the enforcement of certain fundamental rights incorporated in the Constitution that were being violated by alleged practices of sexual harassment of women in the workplace in India. Article 32 of the Constitution empowered the Supreme Court to issue guidelines for the enforcement of constitutionally guaranteed rights.

Since domestic law did not address the issue and did not formulate effective measures to prevent sexual harassment of working women at the workplace, the Court decided to formulate general principles in order to define the concept of sexual harassment and to ensure its eradication. To do so, the Court referred to the Convention on the Elimination of All Forms of Discrimination against Women and on the statements of the United Nation Committee on the Elimination of Discrimination against Women (the international body responsible for supervising the application of this Convention).

In order to explain its reliance on international law, the Court stated the following:

“Gender equality includes protection from sexual harassment and the right to work with dignity, which is a universally recognized basic human right. The common minimum requirement of this right has received global acceptance. The international conventions and norms are, therefore, of great significance in the formulation of the guidelines to achieve this purpose.”

(…) “The government of India ratified the above Resolution on 25 June 1993 with some reservations which are not material in the present context. At the Fourth World Conference on Women in Beijing, the government of India also made an official commitment, inter alia, to formulate and operationalize a national policy on women which will continuously guide and inform action at every level and in every sector; to set up a Commission for Women’s Rights to act as a public defender of women’s human rights; and to institutionalize a national level mechanism to monitor the implementation of the Platform For Action. We have therefore no hesitation in placing reliance on the above for the purpose of construing the nature and ambit of the constitutional guarantee of gender equality in our Constitution.”

The Court added:

“It is now accepted rule of judicial construction that regard must be had to international Conventions and norms for construing domestic law when there is no inconsistency between them and there is a void in the domestic law.”

The Court then referred to Australian decisions and concluded:

“There is no reason why these international Conventions and norms cannot therefore be used for construing the fundamental rights expressly guaranteed in the Constitution of India which embody the basic concept of gender equality in all spheres of human activity.”

Once justified the reference to international instruments, the Supreme Court of India closely relied on the General Recommendation of the United Nations Committee on the Elimination of Discrimination against Women in order to define the actions and situations that shall be qualified as sexual harassment. Besides, the Supreme Court followed the guidelines issued by the United Nations Committee when elaborating the measures to be taken in order to protect women against harassment and the judicial remedies to be granted to sexual harassments victims.

Chapter 4: Treaties and Conventions

As far as treaties as treaties are concerned, different rules apply as to their application within the domestic jurisdiction for very good historical and political reasons. While customary law develops through the evolution of state practice, international conventions are in the form of contracts binding upon the signatories.[38] For a custom to emerge it is usual, though not always necessary, for several states to act in a certain manner believing it to be in cohjtgnformity with the law. Therefore, in normal circumstances the influence of one particular state is not usually decisive[39]. In the case of treaties, the states involved may create new law that would be binding upon them irrespective of previous practice or contemporary practice[40]. In other words, the influence of the executive is generally of greater impact where treaty law is concerned than is the case with customary law.

It follows from this that were treaties to be rendered applicable directly within the state without any intermediate stage after signature and ratification and before domestic operation, the executive would be able to legislate without legislature. Because of this, any incorporation theory approach to treaty law has been rejected.[41]

One of the principal cases in English law illustrating this situation is the case of the Parlement Belge.[42] It involved a collision between this ship and a British tug, and the claim for damages brought by the latter vessel before the Probate, Divorce and Admiralty division of the High Court. The Parlement Belge belonged to the King of Belgians and was used as a cargo boat. During the case, the Attorney General intervened to state that the court had no jurisdiction over the vessel as it was the property of the Belgian Monarch, and that further, by a political agreement of 1876 between Britain and Belgium, the same immunity from foreign legal process as applied to warships should also apply to this packet boat. In discussing the case, the court concluded that only public ships of war were entitled to such immunity and that such immunity could not be extended to other categories by a treaty without parliamentary consent. Indeed, it was stated that this would be ‘a use of the treaty-making prerogative of the Crown…without precedent, and in principle contrary to the law of the Constitution.[43]

The interpretation of treaties not incorporated by statute into municipal law, and the decision as to whether they have been complied with, are matters exclusively for the Sovereign as ‘the court must speak with the same voice as the executive’[44]. An exception is where reference to a treaty is needed in order to explain the relevant factual background,[45] for example where the terms of a treaty are incorporated into a contract.[46]

Where the legislation in question refers expressly to a relevant but unincorporated treaty, it is permissible to utilize the latter in order to constrain any discretion provided for in the former.[47] Further, it has been argued that ratification of an international treaty (where no incorporation has taken place) may give rise to legitimate expectations that the executive, in the absence of statutory or executive indications to the contrary, will act in conformity with the treaty.[48]

However treaties relating to the conduct of war, cession of territory and the imposition of charges on the public purse[49] do not need an intervening act of legislation before they can be made binding upon the citizens of the country.[50] A similar situation exists also with regard to relatively unimportant administrative agreements which do not require ratification, providing of course they do not purport to alter municipal law. In certain cases, Parliament will give its approval generically in advance for the conclusion of treaties in certain fields within specified limits, subject to the terms negotiated for particular treaties being promulgated by statutory instrument(secondary legislation).[51]

In conclusion it may stated that parliamentary legislation will be required where a treaty for its application in the common law system requires a modification of, or addition to, existing common law or statute, affects private rights, creates financial obligations for the country or increases the powers of the Sovereign.[52] 

Conclusion

International law since the middle of the last century has been developing in many directions, as the complexities of life in the modern era have multiplied. For, as already emphasized, municipal law reflects the conditions and cultural traditions of a particular country within which it operates.  The country evolves a certain specific set of values – social, economic and political and this stamps its mark on the legal framework which orders life in the environment. International law is also a product of its environment. It has developed in accordance with the prevailing notions of international relations and to survive it must be in harmony with the realities of the age.

Nevertheless, there is continuing tension between those rules already established and the constantly evolving forces that seek changes within the system. One of the major problems of municipal law is to determine when and how to incorporate standards of International law into the already existing framework, so that, on the one hand, the law remains relevant and, on the other, the system itself is not too vigorously disrupted.

The growth of positivism in the nineteenth century has had the effect of focusing the concerns of International law upon sovereign states. They alone were the ‘subjects’ of International law  and were to be contrasted with the status of non-independent states and individuals as ‘objects’ of International law. They alone created the law and restrictions upon their independence could not be presumed. But the gradual sophistication of positivist doctrine, combined with the advent of new approaches to the whole system of international relations, has broken down this exclusive emphasis and extended the roles played by non-state entities, such as individuals, multinational firms and international institutions.

Thus in conclusion, reality circumscribes the concept of sovereignty in operation and increases the necessity for worldwide co-ordination of matters as different as the policies adopted to combat economic problems, environmental dangers and terrorist threats.

 

[1] See Malcom N. Shaw, International Law, Fifth Edition, Cambridge University Press, Cambridge,2003 pp.1

[2] See P J Fritzgerald, Salmond on Jurisprudence, Twelfth Edition, Univrsal Law Publishing Co.Pvt.Ltd., 2004,pp 10

[3] Ibid at pp.11.

[4] Ibid at pp 12.

[5] Ibid at pp. 14

[6] Supra Note 1 at pp.1

[7] See J.Bentham, Introduction to the principles of Morals and legislation, London, 1780

[8] Supra Note 1 at pp 121.

[9] See J.H.Jackson, Status of Treaties in domestic legal Systems : A Political Analysis, AJIL Pvt. Ltd. 1992, pp.310 

[10] Supra Note 1 at pp. 122

[11] See R.W.Jennings and A.D.Watts, Oppenheim’s International law,9th Edition, Sweet Maxwell and Co., 1992,  pp. 53

[12]See G.Fitzmaurice, The General Principles of International Law Considered from the standpoint of the Rule of Law, Cambridge University Press, Cambridge, 1992, pp. 5

[13] See generally, Lauterpacht, International Law, London, 1950.

[14] Kant’s philosophy: According to which all of man’s knowledge consists only of his own conceptions..

[15]  See Kelsen, General theory of Law and state, Cambridge University Press, Cambridge, 1945, pp.363 

[16] Supra Note 1 at pp. 122

[17] See, Kelsen, Principles of International Law, Cambridge University Press, Cambridge, 1952, pp. 557

[18] Supra Note 12 at pp. 53; See also C.Rosseau, Droit International Public, Paris Univ. Press, Paris, 1979, pp.4-16.

[19]  Ibid at pp. 30

[20] Supra Note 1 at pp. 124

[21] See e.g. C.W.Jenks, The Prospects of International Adjudication, London Publishing House, London, 1964, Ch. 9.

[22]  Supra Note 1 at pp. 124

[23] Note also Article 13 of the Draft Declaration on the Rights and duties of states, 1949, which provides that every state ‘has the duty to carry out in good faith its obligations arising from treaties and other sources of International law, and it may not invoke provisions in its constitution or its laws as an excuse for failure to perform this duty’, Yearbook of the ILC, 1949. pp. 286, 289.

[24]ICJ Reports, 2002, para.265

[25] Ibid., para.266

[26] ICJ Reports, 1988,pp.12, 34; 82 ILR, pp.225,252

[27] ICJ Reports, 1992, pp.3, 32; 94 ILR, pp. 478, 515; ee also Westland Helicopters Ltd v AOI, 80 ILR, pp.595, 616.

[28] Supra Note 1 at pp. 126.

[29]See e.g. the Anglo- Iranian Oil Co. case,  ICJ Reports, 1952, pp.93; 19 ILR, pp.507.

[30] Supra Note 1 at pp. 128; See also e.g. the Exchange of Greek and Turkish Populations case, PCIJ, Series B, No.10, pp.20.

[31] Supra Note 1 at pp. 129.

[32] Ibid at pp. 129.

[33] (1764) 3 Burr. 1478.

[34] (1737) Cases t. Talbot 281.

[35] See Trendtex Trading Corporation v. Central Bank of Nigeria[1977] 2 WLR 356; 64 IL, pp. 111, 128.

[36] See e.g. D.D. Basu, Commentaries on the Constitution of India, New Delhi, 1962, Vol. II.

[37] AIR 1997 SC 3011

[38] Supra Note 1 at pp.135

[39] Ibid at pp. 135

[40] See Generally A.D. Mcnair, The law of treaties, Oxford University Presss, Oxford, 1961, pp.81-97.

[41] Ibid at pp. 95                                                                                                            

[42] (1879) 4 PD 129.

[43] Ibid., pp.154.

[44] Lonrho Exports v. ECGD[1996] 4 All ER 673, 688; 108 ILR, pp.596, 613.

[45] Lord Oliver in Maclaine Watson v. Department of Trade and Industry emphasized that the conclusion of an international treaty is a question of fact, thus a treaty may be referred to as part of the factual background against which a particular issue arises, [1989] 3 All ER 523, 545; 81 ILR, pp.671, 702.

[46] Supra Note 42.

[47]  See e.g. R v. Secretary of State, on the application of the Channel Tunnel Group 119 ILR, pp. 398, 407-8.

[48] See Lord Woolf MR in Ex Parte Ahmed and Patel[1998] INLR 570, 584, relying upon the approach of the High court of Australia in Minister of Immigration v. Teoh, (1995) 128 ALR 353, as to which Hobhouse LJ stated that where the secretary of state had adopted a specific policy, it was not possible to derive a legitimate expectation from the treaty going beyond the scope of policy: at 592.

[49] Supra Note 1 at pp.138.

[50] Supra Note 38 at pp. 89.

[51] Supra Note 1 at pp.138.

[52] See, Sinclair and Dickson, National Treaty Law, Sweet Maxwell and Co., London,  1989, p.230.

TRAC PROPOSED DRAFT TAKEOVER CODE REGULATIONS 2010

Posted on | by L.N. Srinivas | 1 Comment on TRAC PROPOSED DRAFT TAKEOVER CODE REGULATIONS 2010

 A COMPARATIVE STUDY WITH REGULATIONS 1997

1.1. Introduction:

From the beginning of the Takeover Regulations, 1997 up to know more than twenty three amendments has been made. But at present there is a steady increase in corporate restructuring by the Indian companies in order to stand in the race of competition filed the number of takeovers of listed companies has been increasing from time to time.[1] As a result by taking into consideration the increase of takeover market a need has arisen to review the Takeover Regulations, 1997. Towards the achievement the SEBI by its order dated September 4, 2009 has constituted the Takeover Regulations Advisory Committee (TRAC)[2] under the chairmanship of Mr. C. Achuthan,[3] Committee to examine, review and to suggest suitable amendments to it as it deemed fit.

But the committee felt that the legal framework regulating the substantial acquisition of shares and takeovers is precise, unambiguous and conflicting the interest of such shareholders.  As a result the committee felt the need to balance the interest of various stakeholders and to provide a fair, equitable and transparent regime is necessary. Hence the committee instead of making amendments to the existing regulations, it proposed a draft Takeover Regulation, 2010, which maintains such balance and achieve the goal of protection of the interests of the public shareholders in takeover situations.

The Report of the committee was submitted on July 19, 2010 and named the proposed takeover regulations as “Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeovers) Regulations, 2010”. The report is divided into three parts, and it will be kept in SEBI website up to August 31, 2010 for allowing public comments.[4]

1.2. Objectives of the Proposed Regulations:

If we compare the objectives of both the previous and the proposed regulations seems to be one and the same, it like a new wine in old bottle. But as per the Mr.C.Achuthan, Committee the following are the main objectives of the proposed Takeover Regulations, 2010, they are, to provide transparent legal framework for facilitating takeover activities, fair, transparent and equitable framework to protect the interest of investors, to balance the various conflicting objectives, to provide an exit opportunity to each shareholders when takeover of a target company takes place, to bring fair and accurate disclosures, and finally to bring fair competition among acquirers interested in taking over the same target company etc.[5]

Major changes in the TRAC Proposed Takeover Code Regulations 2010 and its Comparison with Regulations 1997:

As compared with the Current Takeover Code Regulation,1997, the following are the major changes which are introduced by the TRAC Committee under the proposed Draft Takeover Code Regulations, 2010, can be classified into three parts. The first part deals with regard to changes, expansion and inclusion of new definition under the regulations. The second part deals with regard to the new trigger points for making the open offer. And the third part deals with regard to the other provisions under the proposed takeover regulations and its impact on different sectors. They are as follows.

1.3. Alteration to Definition parts

            Changes in the definition part has been divided into three parts, they are as follows.

1.3.1. Changes to existing definitions:

1)      Control: The first major change taken place in the definition part is the term ‘Control’.[6] The term has be expanded and includes situations where a person has the ability or right to appoint majority of the directors or to exercise control in any other manner amounts to control. On the other hand the Directors and officers, who would enjoys certain rights in the Target Company on account of their employment, would not be considered to be in control of the Target Company. The exemption of change from joint control to single control not considered as change in control under the old regulations has been deleted in the new proposed Takeover Regulations,2010.[7]

2)      Disinvestment: As per the new definition along with the direct, even the indirect sale of the governments holding either by the central, state or even the sale by the Government company is also included in the definition of the term disinvestment.[8]

3)      Persons acting in concern: The scope of the term has been expanded and included others like trustee companies trustees, sponsor, Assets Management Company are also treated as persons deemed to be action in concern.[9] Along with the above even the Financial Advisors are also now included in the definition of the term person acting in concert under the new Proposed Regulations, 2010.

4)      Prompter: Instead of having a detail definition of the term promoter under the old Regulations,1997, under the present Proposed Takeover Regulation,2010 a reference was given to the SEBI (Issue of Capital Disclosure Requirements) Regulations,2009 to make the definition of the term same under both the regulations.

5)      Shares: As per the new definition of the term ‘Shares’ it also included the Depository Receipts. If further says all Depository Receipts which entitle the holder to exercise the voting rights in the target company are also treated as shares under the new definition.[10]

8.3.2. Definitions of terms deleted:

The following are some of the definitions of the terms which are defined under the old Takeover Regulations,1997 like, Investigation office, Panel, Public Shareholding, Sick Industrial Company etc, has not been defined and totally deleted under the Proposed Takeover Regulation,2010.[11]

1.3.3. New terms added to Definition part:

            The following are some of the new definitions has been added to the proposed Takeover Regulations, 2010, they are as follows;

  •   Business Day – instead of the term working day under the old definition a new word ‘Business day’[12] was defined but given the same meaning.
  • Acquisition – It means, directly or indirectly, acquiring or agreeing to acquire shares or voting rights in, or control over, a target company.[13]
  • Delisting threshold – It means a shareholding entitling exercise of ninety per cent of the voting rights in a target company, excluding voting rights on shares held by a custodian and against which depository receipts have been issued overseas, with reference to the share capital of the target company as of the last day of the tendering period.[14]
  • Manager to the open offer- means the merchant banker for the propose of Regulation – 12.[15]

1.4. Increased trigger limit for open offer:

As per the existing Takeover Code Regulations, 1997 an open offer is trigged upon acquisition of 15% or more shares or voting rights. It was introduced in 1998 and continued without any change up to know even though several arguments came to increase it. But under the proposed Takeover Regulations, 2010 the trigger limit has been increase from 15% to 25%.[16]  The committee recommendations for such increase is based on three points namely, estimation of average promoter shareholding prevailing in listed companies is 25% to 30%, helps to meet the international practices for open offer triggers and[17] as per the existing Indian corporate law, recognize that the shareholding more that 25% is sufficient to block the special resolutions which are required for critical decisions.[18]

1.5. Creeping Limit for Financial year:

In case of a creeping acquisition for every financial year, an acquirer holding 25% or more voting rights in a target company is only allowed to acquire additional voting rights in the target company up to 5% within a financial year[19] without making an open offer.[20]

1.6. Increase in Minimum Open Offer:

According to the existing Takeover Regulations,1997 an acquirer is required to make a statutory open offer for acquisition of a minimum 20% of the voting capital from public shareholders in case if once the threshold limit of 15% is reached. But under the proposed Takeover Regulation, 2010 it has been increased the statutory open offer size to 100% of remaining shareholders. The basic reason behind such increase in open offer size is to protect the interest of minority shareholders and each minority shareholders is entitle to exercise his right to exit the company in entirety in the event of Takeovers or Substantial acquisition of shares.[21]

But the impact of such increase may create higher acquisition cost for any takeover of a listed company and the large players may take a lead for acquisitions. On the other hand the criticism against such increase is that, it creates a lack of debt funding problem for domestic players in India to make acquisitions.[22]

1.7. Automatic delisting or restore to minimum public shareholding:

According to the existing Takeover Code the minimum public shareholding is required to be maintained and there is no provision for a single shot delisting of Target Company, the same should be undertaken in compliance with delisting regulations made by SEBI. But under the proposed Regulations there is an automatic delisting is available in case in the open offer the acquirer crossed 90% of shares or voting rights.

But incase if the acquirer shareholding has crossed the 75% but has not reached 90% in such case the acquirer is required to restore minimum public shareholding of 25%.[23] In this context there is a need to bring the coordination between the two regulations on delisting provisions.[24]

1.8. Indirect acquisition and its pricing an open offer:

As compared with earlier, recently there was litigation in the Supreme Court where people are struggling to explain when an indirectly acquired company would trigger an open offer. In order to overcome this the TRAC has attempted to clear the air surrounding indirect acquisitions .In its report submitted to SEBI on July 19, the Takeover Regulations Advisory Committee has laid out specific provisions for the open offer timing, size and price for indirectly acquired companies provisions that are ambiguous in the current takeover law. In the old regulations there is a common treatment for all indirect acquisition of Target Company irrespective of the size of the target company. But under the proposed regulations certain parameters has been laid down for determining the treatment of the indirect acquisition.[25]

The best example for such case is the Dunlop Case, in 2005, in which a Ruia controlled Singapore based SPV by the name of Wealth Sea had indirectly acquired 74.5% voting power in Dunlop India, via the acquisition of its British Virgin Islands-based parent. Since the transaction was structured as an indirect acquisition, no open offer was made—until 2007, when SEBI stepped in and ruled that an indirect change of control must result in an open offer. Hence the TRAC reproduced the principle and said that a 100% open offer is required for all indirect acquisitions whenever there is a change in control in an Indian listed company, regardless of whether or not that company is material to its parent.

Hence the only materiality distinction the TRAC made is for determination of the open offer price.  It further clarified that If the indirectly acquired company forms a significant part, that is, more than 80% of the Net Asset Value or Sales Turnover of the parent or 80% of the deal value, then such an acquisition will be treated as a direct acquisition and the price of the 100% open offer will be determined accordingly. But in case if the indirectly acquired company is less than 80%, then the 100% open offer will be priced based on separate indirect acquisition pricing norms. Hence the TRAC has made it clear that in both cases, whether it is material or immaterial the offer price will take into account the value of the shares of the indirectly acquired company.[26]

On the other hand in case of such indirect acquisition an immediate short form of public announcement has to be published within four business bays and a detailed public notice to be issued within 5 business days of completions of such acquisition.

1.9. One reference date for calculating Open offer price:

Under the current law both the parent and the target company public announcement dates have to be used as reference dates for the purpose of calculating the offer price. The best example for such debate is in Coflexip’s case, in which the price was Rs,43/- as of 2001, but it became double in 2002 at Rs,84/-. Hence finally the SAT came into picture and finally ruled that the 2001 date was the correct reference date. So in order to avoid such differences the TRAC has proposed only one reference date for the purpose of calculating the open offer price and that date  shall be the date on which the parent acquisition is announced in the public domain, or the date on which the parent enters into any agreement, whichever is earlier. Hence we can say that the reference date which has been set, is the date of the first announcement. So in a way the acquirer is protected from the volatility in the share prices in the Indian stock exchange as soon as the deal is announced for all subsequent periods.

 This new proposed reference date also introduces clarity in cases where the parent company is unlisted, the reason behind for giving such clarity in case of unlisted company is the debate that took place just recently in the 2009 Disa India case, where the Netherlands based company Disa Holdings was acquired but  no official public announcement was made, since the company was unlisted in the Netherlands. Therefore Disa Holding’s listed Indian subsidiary Disa India claimed that there was no reference date linked to the parent transaction at all and hence no such date had to be used for open offer price calculation. The argument which was raised in the Disa India case was upheld by the SAT. But the TRAC has now clarified that the reference date is any date on which the parent acquisition comes into the public domain, and not just an official public announcement date.

The TRAC further said that a 10% per annum has to be added to the open offer price in cases where the time period between the announcement of the parent deal and the public announcement for the target company exceeds 5 days.

1.10. Short form Public announcement:

In the Proposed Takeover Regulations a new concept called the ‘Immediate Short Form’ public announcement has been introduced and it applies both to the direct and indirect acquisitions. In case of direct acquisition an immediate short form public announcement is to be issued on the date of agreeing to acquire shares or voting rights or control and later within 5 business days of issue of public notice a detailed public notices is required to be issued by disclosing all material facts. In case of indirect acquisition an immediate short form of public announcement has to be published within four business bays and a detailed public notice to be issued within 5 business days of completions of such acquisition.  

1.11. Removal of Whitewash provisions:

Under the existing Takeover Regulation there is an exception that an open offer is not required in case if the shareholders of the target company pass a special resolution by postal ballot to that effect for approving the change in control. But under the proposed regulations it has been removed, to protect the interest of minority shareholders.[27]  One more allowed change is that under the current Takeover Code Regulations an acquirer is allowed to nominate a director on the target Board if he has deposited the full offer amount in an escrow account and can do so only after the expiry of 15 days window for competing offers has closed, this created a controversy. As a result the TRAC has made it clear that there should not be any change to be take place in the constitution of the Board of the Target Company during the Period of Competition offers.[28]

1.12. Governance Issue/Mandatory Recommendation by Independent Directors:

In the old regulations the Board of Directors of the target company can sent their recommendations on the open offer to their shareholders. But under the proposed regulations it imposed an obligation of the target company to constitute a independent directors and such independent directors are required to make a reasoned recommendation on the open offer and shall be published by target company. On the other hand no representatives can be appointed by the acquirer in the Board of the target company unless he deposits 100% consideration in the escrow account and the deadline for making competition offers is expired.[29]

1.13. Additional provisions for Withdrawal of Open offer:

Under the old regulations withdrawal of open offer is allowed only under specified circumstances like death of sole acquirer, or any other circumstances as deeded fit by the SEBI, that to after acquiring required statutory approval. Along with the above circumstances one more exemption is allowed for withdrawal, the additional provision says that, withdrawal of open offer is allowed if any condition stipulated in the acquisition agreements is not met for reasons outside the reasonable control of the acquirer.

1.14. Voluntary Open Offer and its restrictions:

In the proposed Takeover Regulations an acquirer holding collectively 25% or more voting rights in the target company can make an voluntary open offer for a minimum size of 10% of voting capital shares of the target company and it should be in compliance with minimum public shareholding norms.[30] On the other hand an exception is provided that, the voluntary open offer can be raised to a fully fledged offer for 100% remaining shareholders in case if a competitive bid is filed, within fifteen business days of such filing of competitive bid.[31]

The restrictions against such voluntary open offer are, no voluntary open offer can be made in case if the acquirer has acquired and shares in the preceding fifty two weeks, and also no such voluntary open offer can be made by the acquirer for a period of six months after the open offer.[32]

1.15. Overhaul of Exemptions from open offer:

As compared with the current law, the TRAC has laid down a clear picture with regard to the exemptions from making an open offer. [33]And also it has shifted the provisions dealing with exemptions from Regulation – 3 to Regulation – 10 to bring a clear and unambiguous picture to the Regulations. Now under the present proposed Takeover Code Regulation, 2010 the TRAC has made it more difficult particularly to automatic exemption route and has closed all the loopholes which are existing in the current Takeover Code, and also introduced anti-abuse conditions in the exemptions part and it further classified the exemptions part into two parts namely, transactions which trigger a statutory open offer due to substantial acquisition of shares or voting rights or change in control and the transactions which trigger a statutory open offer due to acquisition of shares or voting rights exceeding prescribed thresholds limit but where there is no change in control.

On the other hand a complete exemption from making an open offer is provided under the current Takeover Code in case of an acquisition in accordance to a scheme of arrangement, if such restructuring is undertaken either by the target company or its parent. But under the proposed Takeover Regulations, 2010, the TRAC has made it more difficult to obtain an open offer exemption, it proposed that the exemption for such schemes of arrangement is available only in cases where the cash equivalent component of the consideration is less than 25% of total consideration paid under the scheme and the persons who were previously holding voting rights of the target company’s parent are required to continue to hold 33% voting rights either directly or indirectly of the restructured company after the post restructuring.[34]

One more exemption in the TRAC report is that it proposed to make buybacks automatically exemption but in case if because of such  buybacks if the shareholding goes beyond the control threshold then he is required to make an open offer, but it does not apply if the acquirer has obtained an exemption from the Board. In order to get this exemption he should not vote on the buyback in the Board meeting or shareholders meeting and his increase in voting rights does not cross the control threshold.

1.16. Prohibition of Non-competent fee:

Under the Takeover Code Regulations, 1997 a non-competent fees upto 25% of the offer priced is permitted to be paid to the promoters of the target company in addition to the offer price. But under the TRAC Proposed Takeover Code Regulations, 2010, the provision of non-compete fee was omitted and the promoters to be paid the same price per share as the pub shareholders entitled. d

1.17. Activities and Timelines for Open offer Process:

Under the proposed Takeover Regulations the procedural timelines for various activities in the open offer process has been reduced from 95 days to 57 business days from the date of public announcement. It further clarified that under the old Regulations the Public announcement should be made within 4 working days of entering into an agreement or making a decision for acquisition.

But under the TRAC Proposed Takeover Regulations,2010 a new concept called the “Short Form Public Announcement” should be made on the  same day of agreeing to acquire shares or voting rights or control over the target company and a detailed public statement should be within 5 business days from making of the short form public announcement.[35]

1.18. Impact of Recommendations on different sectors:

By taking into consideration the different recommendations made by the TRAC, it has be tried to laid down the following, are the impacts of those recommendations on different sectors as follows, they are;

1.18.1. Impact on promoters of Target Company:

The first impact of the proposed Takeover Code Regulation, 2010 on the promoters of the Target Company is that, due to the increase of initial trigger threshold limit from 15% to 20% made the hostile takeovers of some of the listed companies having promoter shareholding lower made easy, the second impact is that the promoters are not now allowed to get non-compete fee and eligible only for the price which can be paid to other public shareholders of the target company. the third impact is that the creeping acquisition upto 5% per annum till 75% is allowed for any acquirer holding 25% or more voting rights in the target company, makes the promoters to increase their shareholding upto 75% in the target company without making an open offer, whereas under the current regulation it is allowed only upto 55% .

1.18.2. Impact on public shareholders:

The impact of such recommendations on the public shareholders is that, the increase of offer size from 20% to 100%  provides an exit opportunity to the shareholders regarding his all shares and the prohibition of non-compete fee provides an equal treatment and bring uniformity regarding the price offered, reducing the timeline for open offer decreased the market risk to the public shareholders, and finally they can get an option to take decisions regarding the open offer basing on the mandatory statement required to be made by the independent directors of the target company to their shareholders.

1.18.3. Impact on acquirers:

The impact of the recommendation of the TRAC proposed Takeover Code Regulations, 2010 against the acquires is that the cost of acquiring a listed company has been increased because of increasing the open offer size, and for domestic acquires there is a hurdle for getting fund because the banks have limitation of financing for acquisition of shares of another company, this gives an advantage to the foreign acquirers. On the other hand there is an option available to the acquirers to directly go for delisting of the target company if the acquirer acquires the shares exceeding the delisting threshold.

 Conclusion:

Hence it is clear that as compared with the current Takeover Code Regulations, 1997, the advisory committee proposed draft Takeover Code Regulations, 2010, is very clear and removed the confusion on certain provisions and tried to bring fair, equitable and transparent legal framework which is in conformity with the best global practices. On the other hand it also tried to protect the interest of investors by providing an exit opportunity and by prohibition of competent fee where all the shareholders will get the same price.

Before going to conclude, it is important to say that “a human being remembers everything to forget and forgets everything to remember new things”, in the same way the advisory committee, while submitting the draft to SEBI, it has also not taken into considered certain aspects like, in a recent Subhkam Ventures Pvt Ltd vs. SEBI, 2010 case, where the supreme court has made it clear about the meaning of the term, control and made the distinction between “positive and negative control” and finally held that acquisition of certain affirmative rights with the purpose, only to protect the investment does not constitute the acquisition of control, in this scenario even the advisory committee has also failed to discuss about the concept of negative control, under the proposed regulations. In the same way further,  more clarity is required to be given to the provisions, dealing with the voluntary open offer particularly, with respect to the situation,where the person holding less that 25%  shares desires to consolidate his shareholding, through open offer is allowed or not.

One more lacuna in the TRAC report is that it has pointed out about the need for uniformity regarding the “taxation issues” in case of shares acquired in open offer. In this context, it has just simply suggested that SEBI has to take up the matter with the Government but it has not tried to make any suggestions on it.

Last, but not the least, one more area, where the TRAC report has not taken into consideration is that, today the corporate takeovers has changed its path from domestic takeovers to cross border takeovers, the best example, in present days, is that Vedanta Resources Plc a company listed in the London Stock Exchange, which controlling the Indian sterlite Industries Ltd has decided to acquire a controlling stake in Cairn India Ltd, and filed the draft letter of offer with SEBI, on the other hand the Mahendra & Mahendra entered into a memorandum of understanding with Ssangyong Motor Company (SYMC) to acquire a majority control stake in the South Korean SUV Maker, in this context, the need of a clear and separate provisions to deal with situations in case of a cross border takeover has to be considered, but failed to do so, except that, it dealt with the issues relating to the ADR and GDR concerned and the holding of depository receipts and restricted the exemptions to it.

Hence as compared with the current regulations, we can say this proposed draft takeover regulations 2010, up to some extent has tried to remove all the loopholes , but we are not the one to say whether the recommendations made by the TRAC is good or bad because “a decision will never be a good or bad, but it depends upon the changing circumstances and future needs”, in the same way, the SEBI has also allowed the public feedback up to August 31st, by uploading the report in its website.  Now it’s the time to wait whether the TRAC report will succeed in its journey or not, after facing the hurdles in the form of criticism. Time will decide.

[1] Koushik Chatterjee, NEW TAKEOVER CODE: IS IT ACHIEVABLE FOR CORPORATE INDIA.

http://www.moneycontrol.com/news/current-affairs/ne-takeover-code-is-it-achievable-for-corporate-india_471100.html (August 27, 2010)

[2] Takeover Regulations Advisory Committee, hereinafter called as “TRAC”.

[3] He is the former Presiding Officer of the Securities Appellate Tribunal.

[4] Report of The Takeover Regulations Advisory Committee Mr. C. Achuthan, PROPOSED TAKEOVER REGULATIONS, 2010. (Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeovers) Regulations, 2010).

http://www.sebi.gov.in/commreport/tracreport.pdf (September 2, 2010).

[5] Report of The Takeover Regulations Advisory Committee Mr. C. Achuthan, PROPOSED TAKEOVER REGULATIONS, 2010. (Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeovers) Regulations, 2010). http://www.sebi.gov.in/commreport/tracreport.pdf

[6]New Regulations,2010, Regulation – 2(1)(g). Old Regulations,1997, Regulations – 2(c).

[7] http://www.bmradvisors.com/upload/documents/MAE2010,%20July%2023%20pdf1280126707.pdf

[8] New Regulations,2010, Regulation – 2(1)(i). Old Regulations,1997, Regulation – 2(1)(cc).

[9] New Regulations,2010, Regulation – 2(1)(r). Old Regulations,1997, Regulation – 2(1)(e).

[10] New Regulations,2010, Regulation – 2(1)(w). Old Regulations,1997, Regulation – 2(1)(k).

[11] A Comparison of Regulations, 1997 with the Recommendation given by TRAC. http://www.takeovercode.com/uploads/comparison_definitionsn.pdf

[12] Proposed Takeover Regulations,2010, Regulation – 2(1)(e).

[13] Proposed Takeover Regulations,2010, Regulation – 2(1)(c).

[14] Proposed Takeover Regulations,2010, Regulation – 2(1)(h).

[15] Proposed Takeover Regulations,2010, Regulation – 2(1)(p).

[16] http://www.dishtracking.com/blog/cnbc-tv18/cnbc-tv18-presents-rules-of-the-ma-game-on-trac/

[17] A Comparison of Regulations, 1997 with the Recommendation given by TRAC. http://www.takeovercode.com/uploads/comparison_definitionsn.pdf

[18] Proposed Takeover Regulations,2010, Regulation – 3(1).

[19] Proposed Takeover Regulations,2010, Regulation – 3(2).

[20] http://in.reuters.com/article/idINIndia-50260620100720

[21] Report of The Takeover Regulations Advisory Committee Mr. C. Achuthan, PROPOSED TAKEOVER REGULATIONS, 2010. (Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeovers) Regulations, 2010).

http://www.sebi.gov.in/commreport/tracreport.pdf

[22] http://www.bmradvisors.com/upload/documents/MAE2010,%20July%2023%20pdf1280126707.pdf

[23] Proposed Takeover Regulations,2010, Regulation – 7(4)&(5).

[24] Takeover Regulations — Proposed Makeover,

http://www.taxguru.in/sebi/takeover-regulations-%E2%80%94-proposed-makeover.html

[25] Proposed Takeover Regulations,2010, Regulation – 5(1).

[26] Isha Dalal, INDIRECT ACQUISITIONS: ON TRAC.                                    http://www.moneycontrol.com/news/management/indirect-acquisitions-on-trac_474112.html

[27] Takeover Regulations — Proposed Makeover,

http://www.taxguru.in/sebi/takeover-regulations-%E2%80%94-proposed-makeover.htm

[28] Amrish Shah, COMPETING OFFERS: ON TRAC.

http://thefirm.moneycontrol.com/news_details.php?autono=476292

[29] Proposed Takeover Regulations,2010, Regulation – 26.

[30] Proposed Takeover Regulations,2010, Regulation – 6.

[31] Proposed Takeover Regulations,2010, Regulation – 7(2).

[32] Proposed Takeover Regulations,2010, Regulation – 6(2).

[33] Bharat Vasani, EXEMPTIONS: ON TRAC.

http://thefirm.moneycontrol.com/news_details.php?autono=478240

[34] Sandeep Katwala, ON TRAC? FOREIGN ACQUIRERS.

http://thefirm.moneycontrol.com/news_details.php?autono=481535

[35] Arun Scaria and Sahil Shah (ed.,), INDIAN TAKEOVER REGULATION UP FOR OVERHAUL.

An Analysis of the Interaction of Psychology and Crime

Posted on | by Avneesh | Leave a Comment on An Analysis of the Interaction of Psychology and Crime

Psychology and crime these two are prime facie two distinct things, but actually psychology is connected in many ways to the different aspects of crime; specially in the last 50 years the attention is shifted on the interaction of these two by criminologists, jurists and scholars. How the criminal tendency is developed, it is intrinsically connected to the domain of psychology. The contribution of great Australian psychiatrist, Sigmund Fred, is a big one; according to him thinking, violent, aggressive, or sexually deviant acts should be seen as expressions of buried internal (psychic) conflicts that are the results of traumas or deprivations experienced during childhood. Fred divided the human mind in three parts namely 1. Id (an aspect of personality that is unconscious including the primitive and instinctual behaviours.) 2. Ego (the element of personality which enables the id to function in socially acceptable ways.) 3. Superego (that is the internal approach mind towards moral and social standards). Certainly the superego of a person or moral standard will depend upon so many factors as like his background, his family, his friends etc. If a person is from a good family then his/her moral standard will be high, but an issue of a anti-social parents will not have such a good character (speaking generally).

 In very simple words we can say that many times the criminal behaviour is therefore the result of a failure of psychological development. In the childhood, the child learns so many things, and his internalized moral and social standards which guide his/her behaviour are conceived by him/her in childhood. In the childhood if proper social and psychological development is hindered then it may make him/her criminal in further life. Suppose, if the parents of a child are anti-social or criminals, then obviously it will motivate the child to be criminal. If a child was not grown in a proper social environment or proper care was not taken on the child or the relationship of the child is not good with the family members specially with the mother, then it will hinder the development of his capabilities to take a fair decision in the time of difficulty, frustration and he/she may commit crimes. Some other things as like peer group of the child, his school, and even T.V. and media may create criminal tendency in a child. At the time of the commission of a particular offence, there may be so many psychological factors behind it. Many times a person commits crime because of his internal feeling or disturbances; when we conceive things then feelings arise in our mind, and, those feelings may be pleasure giving or pain creating, now if those feelings are pain creating then those feelings may inspire a person to commit a crime for example A and B are colleagues, and B always performs better than A, then this situation may encourage A to assault or murder or harm B. 

Now, if we go to the question that why do people commit crimes? The answer cannot be given in one word or sentence but certainly the reasons are hidden in psychology. When a person commits a crime then his immediate attention is on the crime not on the further consequences (except in the case of organized crimes). As like X hates Y, then he may assault or murder Y, but he will not think the further consequences that he (X) will get punishment, rather he will only think about the assuage of his feeling of hate. When a person is continuously under the influence of frustration, tension or under immediate anger then his reasoning power is reduced, and he is very prone to take a wrong decision or say to commit a crime. Uncontrolled anger, sexual desire etc things may also be the reason of the crime; as like in the case of uncontrolled sexual desire one may commit rape. Of course the moral character of a man does matter, which would be gained by him through his family, friends, relatives etc. So many times it is possible that the criminal tendency or aggressive nature may develop from family or friends. Many people may commit crime if they are poor to get money or other things.

There may be one other reason for the commission of a crime that is personality or mental disorders. The mental instability of person may fairly lead him/her to follow a sychopath, generally speaking people commit crime to fulfill some of their desire which cannot be fulfilled legally. By doing so they want to escape from the real world, at the time of the commission of the act they enjoy by realizing that their unconscious desires are fulfilled. So, at the time of commission of an act there are totally in a different state of mind, which is actually different from the normal or the real condition as like in the case of mental confusion. There may be two personality in the mind of the offender as like in the normal condition he may live as a vey innocent person, but at the time of the commission of the offence his mental state may be totally different, and he may commit brutal and heinous crime. The intelligence level of  the offender, his/her self control on his anger and sexual urge, his capacity to bear frustration, his decision making power in tough times, his relationship with family members and the other world are some of the factor behind criminal tendency and commission of crime; the list not completed, there may be so, so many other factors.

The law has to be legitimately concerned with the psychological reasons behind the commission, it is essential for the prevention of any further happening of a crime by the same individual or other individuals as like. A psychological reason may also be a cause to reducing the sentence of a particular crime; we can take simple example as if an act is committed under the influence of anger, tension, frustration etc then the punished would be lighter than the punished for a organized crime or a crime which was committed in a normal stage of mind. In the jails also, in the western world, new developments are taking place, as like treatment programme for anger management or sexual arousal. Although in India such type of facilities are not available but still in jails different type of programmes, prayers are arranges which is certainly a good step. Ultimately, a crime may also be a sychological product, and when it is so we have to remind that what was said by Mahatama Gandhi, the father of nation, “Crime is the outcome of a diseased mind and jail must have an environment of hospital for treatment and care”.

Obvious, unless we go to psychology to find out the reasons of crime, we cannot get the solution or a proper crime prevention strategy and certainly from research of these two some new variable will come new theories will develop, and new solutions will come to prevent criminal and to prevent the development of criminal tendency.

Representations and Warranties

Posted on | by L.N. Srinivas | Leave a Comment on Representations and Warranties

 1.0. Introduction:

Every contract includes Representations and Warranties and these are the underlying facts as presented by one party to another with the intent that the other party will rely on them to their detriment. Generally the party will represent and warrant as to one or more facts. But when using both the terms in a drafting agreement, a question arises, when both terms used independently or interchangeable or synonymous makes any differ or not.

For reaching this conclusion requires an analysis in different stages. The first step is how the general contract law makes distinction between the terms representation and warranties. The second one is how the courts must construe these words when used in contracts, and finally its implications in different countries namely in India, US and UK.

 1.1. Definition of Representations and Warranties:

ü  The Blacks Law Dictionary

  • Defines Representation as ‘A presentation of fact either by words of by conduct, made to induce someone to act, esp to enter into a contract.
  • Defines Warranty means “to promise or guarantee”.

ü  Uniform Commercial Code

  • Whereas Section 2-303 of the Uniform Commercial Code says “Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.” So under the UCC, a statement of fact can be a warranty (as is the case under common law) but so too can an obligation.

ü  General definitions

a)      Representation is presentation of fact – either by words or by conduct – made to induce someone to act, especially to enter into a contract. A Representation looks at the present or the past, presenting what the status is or was.

b)   Warranty is generally regarded as being forward looking and providing assurance about the future.

ü  Definition by court

Great Atlantic & Pacific Tea Co. v. Walker,[1] court has defined a warranty as “a statement or representation made contemporaneously with and as a part of, the contract of sale having reference to the character, quality or title of the goods and by which he promises or undertakes to insure that certain facts are, or shall be, as he represents them.

 1.2. Need of Representations and Warranties:

It places a considerable longer term loan on the seller and, is the main cause of post-closing litigation between the buyer and the seller. Sometimes it can be used as a defensible by stating that they are not as absolute but as to the “best of the sellers knowledge”.

 1.3. Representations and Warranties in US:

According to the Model Stock Purchase Agreement (1995) and Model Asset Purchase Agreement (2001) both published by the American Bar Association section of Business law says that, representations are statements of past or existing facts and warranties are promises that existing or future facts are or will be true. But in Smith v. Waste Management,[2] the court refers to “representations as about Waste Management’s future earnings”. With regard to meaning of term Warranty under common law an express warranty is a seller’s affirmation of fact to the buyer, as an inducement to sale regarding the quality or quantity of goods, title or restrictive covenants to real property.

But most of the warranty cases today arise under the Uniform Commercial Code. According to Uniform Commercial Code the term express warranty defined under section 2-203 makes clear that a statement of fact can be a warranty.

Whereas with regard to representation, a representation can underlie an action for misrepresentation, whereas an action for breach of warranty must be based on a warranty. But whereas the definition of representation is broad enough to include assertions of fact that wouldn’t support an action, for an action for breach of warranty. That’s why courts don’t use warranty terminology in cases that don’t involve sales.

 

1.4. Differences between US and UK relating to Representations and Warranties:

In US except in certain limited circumstances both contract and tort laws are under the state rather than US federal law. Whereas in UK it is common for the seller to oppose giving representations  and warranties which leads to minimize the risk of a tortuous claim for damages under the Misrepresentation Act, 1967 and to remove the possibility that the buyer will not attempt to rescind the agreement under the said act.

With regard to court views the US courts says that a cause of action for misrepresentation does not exist just because a contract states that a party warranted a particular statement and did not represent it. But in case of UK the nature of remedies available to the buyer will depend on the extent of the buyer’s knowledge and reliance. In Chandelor v. Lopus,[3] it was held that a seller wasn’t liable to a buyer because the seller had “affirmed” rather than “warranted” as to the product sold.

 1.4.1. Caution on Non-Reliance Statement and Entire agreement Clause:

In both the US and UK generally the seller wants to include in the agreement an “Entire agreement clause” and “Non-Reliance Statement” and includes a provision to that effect that the buyer has not relied on any statement or promise not included in the written agreement, the intention behind such clause it that, they want to ensure that they cannot subsequently be found liable for representations and/or warranties that are not included in the written agreement. So a caution should be taken on such clauses in the agreement which helps if we are the sellers to limit the extension of liability and if we are the buyers to take care on future litigation.

 1.5. Representations and Warranties in India:

According to the Indian context, the term “Warranty” is a stipulation collateral to the main purpose of the contract and the breach of which gives rise to claim for damages but not a right to reject the goods and treat the contract as repudiated as per the provision of Section – 12 of the Indian Sale of Goods Act, 1930. The extent of coverage of warranty differs from case to case.

Warranty may be generally express, but there are certain implied warranties under the act namely, buyer shall have a quiet possession of goods, goods are free from any charge or encumbrance, quality and fitness, merchantability of goods etc. Here the warranty should cover all the identified risks but the extent of liability and time limit for claiming losses should be set.

Whereas according to Section – 18 of the Indian Contract act, defined the term misrepresentation which includes the positive assertion which was not warranted by the information of the person making it or it is not true or made a mistake as to the substance of the thing which is subject of the agreement amounts to misrepresentation and the party who has given consent by misrepresentation can make the contract voidable.

 1.6. Alternative terms in other countries:

In Spanish version and in Anglo-American contracts the words Declaraciones y Garantias are used instead of the words Representations and Warranties. The main reason for using these alternative terms is where one of the parties to a Spanish contract is an international company and the clause is deemed necessary to refer the same.

 Representations and Warranties Clause in agreements

 

1.7.1. Representations & Warranties clause in Asset Purchase Agreement:

This type of agreement is entered between two companies which buys another company. the agreement itself defines the assets and liabilities that are sold to the buyer which includes Intellectual property, Machineries etc. the important in this type of agreement is the starting and closing date of the sale and purchase deal because the seller represents and warrants that, he has authority to sell assets, value shown for the assets sale are correct and assets are free from any legal implications, whereas the buyer also mention the same that he has authority to buy and all details about the purchase assets have been made known to him.

 1.7.2. Representations & Warranties clause in M & A:

In case of M& A deals the representations are statements about the current status of the business or its operations, whereas the term warranties go further about current status because they guarantee the truth of the statement. When one company going to acquire another company the main dispute arise with the clause of Breached representations and warranties with regard to determining the breadth and scope of it..

Hence the following are the common list of representations and warranties where an acquirer will normally request a company it intends to acquire to make in the agreement, they are, organizational powers to carry on business, authority to enter into agreement, no outstanding dividends, title of properties, liens if any, condition of properties, taxes required have been filed, Intellectual property like domestic and foreign patents, registered trademarks, service marks etc which are within the knowledge of the company and used by it does not require the consent of any other person and is freely transferable., no pendency of suits etc.

 1.7.3. Survival period of Representations and Warranties Clause in M&A:

In case of M&A deals the duration of the survival period of the sellers representations and warranties raises several questions. A recent decision by a US three judge panel of the Ninth Circuit Court of Appeals in Western Filter Corp v. Argan, Inc.[4] has given an interpretation to those survival clauses and held that the most reasonable interpretation of the survival clause is that it servers only to specify when a breach of the representations and warranties may occur but not when an action must be filed. And also further held the survival clause as drafted did not shorten the limitation period to one year.

 1.8. Enforcement of Warranty:

In order to claim for damages there should be direct nexus between the claim and liability under the warranty clause and there is need to prove an onus to show breach of warranty and consequential loss, but the contract cannot be repudiated by breach of warranty. Even sometimes a breach of condition may also be treated as breach of warranty under certain circumstances.

 1.9. Remedies:

The action for misrepresentation is very different from an action for a breach of warranty in terms of the remedies available and other matters. Under the general law relating to liability for statements, the term ‘Representation’ is used to denote a statement of fact which induces an innocent party to enter into a contract and if it has been discovered untrue gives the innocent party a remedy for misrepresentation. Whereas in case of warranty it is a contractual statement, in case of untrue allows the innocent party to sue for breach of contract and allows for a claim for damages but does not entitle the innocent party to terminate the agreement.

 1.10. Qualification for damages in US and UK:

In US the effected person is indemnified on a dollar for dollar basis for breach of warranties or representations subject to negotiation caps, threshold limits and deductibles.

Whereas in UK it is less common and the person will be remedied basing on the contractual claim for damages. In the same way the person has a duty to mitigate its loss and the damages must have been reasonably foreseeable.

Further if the buyer has actual knowledge prior to execution of the agreement  about the facts that resulted in breach of warranty, the person may be precluded from raising a successful claim for breach of warranty. The same practice was followed in UK. Along with these some more consequences can be considered like

  1. Inability to recover certain elements of losses that are not reasonably foreseen by parties at the time of entering into the agreement
  2. Profit earning capacity of the assets warranted are affected

 1.11. Precautions while drafting Representations and Warranties Clause:

  • The first precaution is instead of using the term “party represent and warrant as to statements of fact”, it’s better to confine only to “the party represents that”.
  • While putting a separate clause named ‘Representations and Warranties’ another issue arises, if the seller thinks that all the warranties in a given agreement are to be found in the section with the heading “Represents and Warranties”. But sometimes the court may hold that a statement of fact or obligation located elsewhere in the contract constitutes a warranty supporting an action for breach of warranty, even though the contract doesn’t refer it as a warranty. Hence this is one more area to be cautioned.
  • Sometimes contract refers a provision as a warranty, but the court will treat it as a representation supporting an action for misrepresentation, where caution is needed.
  • In case of sales contract the word warranties come to mind immediately rather than representations, basing on sales contract the word can be used to confine the future litigation.

 

[1] 104 S.W.2d 627, 632

[2] 407 F.3d 381, 382 (5th Cir. 2005),

[3] (1603) 79 ER 3

[4] 9th Cir. 8/25/2008

Anti-terrorism Laws: Distinguishing Myth and Reality

Posted on | by Tanvi Khanna | Leave a Comment on Anti-terrorism Laws: Distinguishing Myth and Reality

“The country has been in the firm grip of spiraling terrorist violence and is caught between deadly pangs of disruptive activities. Apart from many skirmishes in various parts of the country, there were countless serious and horrendous events engulfing many cities with blood-bath, firing, looting, mad killing even without sparing women and children and reducing those areas into a graveyard, which brutal atrocities have rocked and shocked the whole nation. Deplorably, determined youths lured by hard-core criminals and underground extremists and attracted by the ideology of terrorism are indulging in committing serious crimes against the humanity.”

Kartar Singh v. State of Punjab[1]

 

INTRODUCTION

Literally, “terrorism” like any other ‘ism’ is a system of views or methods or theory that strongly believes in the use of ‘terror’ to achieve certain objectives. “Terror” in the ordinary parlance, means, intense, over powering fear and use of terrorizing methods for governing, or resisting a government. Terrorism can be referred to as a synthesis of war and theatre, a dramatization of the most prescribed kind of violence – that which is perpetrated on innocent victims – played before an audience in the hope of creating a mood of fear, for political purposes.[2] Like a theatre’s objective is to entertain the audience, similarly objective of terrorism is to intimidate the government as well as the citizens. At present, terrorism poses a threat to the security, integrity and sovereignty of several nations on a global scale. Terrorism has now acquired global dimensions and has become the challenge for the whole world. India has been the victim of terrorism since its pre-independence period.

India has been facing multifarious challenges in the management of its internal security. There is an upsurge of terrorist activities, intensification of cross border terrorist activities and insurgent groups in different parts of the country[3]. The reach and methods adopted by terrorist groups and organization take advantage of modern means of communication and technology using high-tech facilities available in the form of communication system, transport, sophisticated arms and various other means. This has enabled them to strike and create terror among people at will. The criminal justice system was not designed to deal with such type of heinous crimes. Although, Indian legislature has enacted several laws to curb terrorist and separatist activities, terrorism resembling cancer is likely to spread through the body politic and destroy the democracy.

As if ‘Terrorism’ itself was not enough to destroy the democratic nature of a country, the anti-terror legislations gave the officials and the government a license to do exactly that. The legislations has been misused and abused by the law enforcing agencies to terrorise the minorities and political rivals. This paper discusses the major anti-terrorism laws in India and intends to expose the harsh reality related to them.

ANTI-TERROR LAWS IN INDIA

India has always believed that the only effective way to ensure a safer tomorrow for nations is to look at terrorism from global perspective and lock arms in fight against it.[4] Moreover it is believed that terrorism is an extra legal phenomenon, and law has a limited role to play; but even this limited role is indispensable. Thus, India wounded deeply several times by terrorist strikes, has enacted some anti-terrorism laws, which have always been subject of much controversy. For the sake of convenience and brevity, the anti terror laws in India can be divided into two categories: Repealed and Existing Laws.

Repealed Laws

The Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter as TADA)

TADA was specifically designed to deal with terrorist activities in India. However, the provisions of TADA gave the law enforcing agencies arbitrary powers and these provisions were an utter disregard for the Criminal Procedure Code and the Indian Evidence Act. TADA allowed for the admission of confessions of detainees, in police custody, in legal proceedings against them which was in contradiction to the provisions of the Indian Evidence Act which expressly prohibited such confessions.[5] While the Criminal Procedure Code required identification to be made at a test identification parade, TADA allowed identification to be based on a witness having picked out the detainee’s photograph.[6]

TADA also provided for the creation of “Designated Courts”[7] which had the exclusive jurisdiction to try violations of its provisions.[8] These Courts were closed to the public, and provided significantly diminished procedural protections for suspected terrorists. For example, where the potential punishment was not more than three years, the Court was authorized to conduct a “summary trial,”[9] though it was free to recall witnesses or rehear a case where circumstances warranted. Also, Court may, if it thinks fit and for reasons to be recorded by it, proceed with the trial in the absence of the accused or his pleader and record the evidence of any witness.

Finally, TADA created a presumption of guilt in situations where arms or explosives were found, in the possession of the accused, which were similar to those used in the terrorist act or in cases where the fingerprints of the accused were found at the scene or vehicles used in the terrorist act, or where the accused rendered any financial assistance to a person accused of or reasonably suspected of a terrorist act.[10] Of the 52,998 people detained under TADA at the end of 1992, a mere 434, or 0.81%, had been convicted. The shadow of TADA continues to loom, even though TADA is no longer in effect, as the State retains the power to charge suspected persons retroactively for crimes committed during its enactment.

TADA came to be challenged before the Apex Court of the country as being unconstitutional in the case of Kartar Singh v. State of Punjab[11]. The Supreme Court of India upheld its constitutional validity on the assumption that those entrusted with such draconic statutory powers would act in good faith and for the public good. However, this was just a myth. In reality there were many instances of misuse of power for collateral purposes. The Hon’ble Supreme Court in the same case has stated, “The invocation of the provisions of TADA in cases, the facts of which did not warrant, was nothing but sheer misuse and abuse of the Act by the police.”[12] The rigorous provisions contained in the statute came to be abused in the hands of law enforcement officials.

TADA was mainly misused in Punjab and Kashmir. In Punjab, for instance, out of the 18000 cases registered during the decade-long militancy, 11,000 cases were brought before courts, the rest were cancelled. So far 8,700 cases have been decided in Punjab with convictions in 188 cases only and acquittals in 8,300 cases. At present 478 people are still facing trial under TADA in Punjab. Misuse of TADA was most reported from states which had no history of terrorism like Gujarat where at one time 19,000 persons were booked under TADA although that state did not experience terrorism. TADA lapsed in 1995

The Prevention Of terrorism Act, 2002 (hereinafter as POTA):

On the 13th of December 2001, five Pakistani Terrorists attacked the Indian Parliament, killing seven people and placing the country into a heightened State of alert. In response to the domestic pressures for the failure to crack down on terrorism, like its American counterpart, the Indian central government in March 2002 passed the Prevention of Terrorism Act, to enhance India’s ability to crack down on possible terrorist threats. POTA has by far been the most draconian anti-terror legislation in India.

Under an expansive definition of terrorism, POTA may also be applied to cases of murder, robbery, theft and other crimes that would ordinarily be covered under the Indian Penal Code. It also provided for criminal liability for mere association or communication with suspected terrorists without the possession of criminal intent. POTA, while criminalizing membership of a “terrorist gang” or a “terrorist organization,”[13] does not clearly define what these terms mean.

Drastically deviating from the principles of assumption of innocence and requirement of criminal intent, an accused is presumed to be guilty until proven innocent in certain circumstances.[14] This section lends itself readily to abuse, especially by police officers, and may also be applied arbitrarily since many of the offences fall under the Indian Penal Code as well. It does not require the government to furnish evidence and specify grounds when issuing a notification declaring an organization a ‘terrorist organization’. The onus is thus on the accused organization to disprove the validity of its having been declared a terrorist organization by the Central Government. The Central Government thus becomes judge, the jury and prosecutor. Further, section 48(2) provides for the option of pre-trial police detention for up to a period of 180 days.

‘Special courts’ for trials were established under POTA. These Courts were given the discretion to hold trials in non-public places (like prisons) and to withhold trial records from public scrutiny, thus preventing the independent monitoring of special court sessions. The special courts also had the option of proceeding with trials in the absence of the accused or his/her lawyer[15]. The special courts can hold trials in camera and keep witnesses’ identities secret, thus undermining the right to fair trial through prejudicing of the defense case. It makes admissible as evidence intercepted communication against the accused. There are also fears that the detentions under POTA are dangerously long, as torture in police custody is a fact recognized to be widespread by the authorities. Section 32 provides that confessions made to police officers are to be admissible in trial in contravention to the provisions of the Indian Evidence Act.

The government had tried to project POTA as a more acceptable version of the notorious TADA. This was just a myth. The harsh reality was that POTA was even more draconian and arbitrary. Two years after the existence of POTA, legitimate fears of its misuse against political opponents and demonized and marginalized communities were borne out. POTA’s opponents warned that officials would use the law to target minorities and political opponents.[16] Their fears were soon realized. The states that enacted POTA wasted no time in capitalizing on its broad definitions of terrorist offenses and sweeping powers of arrest and detention.[17] A mere eight months after its effective date the seven states applying POTA had arrested over 940 people, at least 560 of whom were languishing in jail.[18]

The State of Jharkhand in particular appeared to have detained more people under POTA than even terror-plagued Jammu and Kashmir, which had witnessed some of India’s most violent insurgency for over ten years.[19] Jharkhand gained particular notoriety for arresting women, children, and the elderly, even as a High Court in Tamil Nadu decided that police could not arrest juveniles under POTA.[20]

Misuse of POTA along communal and minority lines was most glaring in Gujarat.[21] In Gujarat, police invoked POTA to arrest 123 Muslims allegedly involved in a vicious attack on a train full of Hindu passengers. The government declined, however, to use POTA against Hindus involved in pogroms that killed over 2,000 Muslims.[22] All but one of Gujarat’s POTA detainees was Muslim.[23] Police held people for questioning for days or weeks without access to family members or to counsel, frustrated habeas corpus applications, and threatened to arrest family members under POTA if they petitioned the government.[24] Some detainees complained of being tortured into giving confessions.[25]

In April 2003, police in Uttar Pradesh arrested two Kashmiri Muslim students for allegedly sympathizing with a Muslim terrorist group.[26] Every Kashmiri in an area of the state frequented by students became a suspect in a sweeping investigation. Investigators searched school records and school managers kept Kashmiri students under observation.[27]

Similar to POTA’s arbitrary application along communal and minority lines was its arbitrary use against political opponents. In Uttar Pradesh, after months of harassment in the form of twenty criminal charges and various raids on their property, Chief Minister Mayawati arrested her longtime political rival and his seventy-three-year-old father under POTA.[28]

In March 2002, police in Jammu and Kashmir invoked POTA to detain Hurriyat leader and Jammu and Kashmir Liberation Front Chief Yasin Malik.[29] It was alleged that Malik illegally received a large sum of money from Pakistani couriers.[30]

The most significant example of political abuse, however, occurred in July of 2002, in the State of Tamil Nadu. Chief Minister J. Jayalalitha arrested Vaiko, the general secretary of a Tamil nationalist political party known as the Marumalarchi Dravida Munnetra Kazhagam (MDMK) for publicly expressing sympathy for the banned LTTE.[31] With his detention, Vaiko became the first Member of Parliament and chief of a registered political party in the country detained under POTA.[32]

Existing Laws

The Unlawful Activities (Prevention) Act, 1967(hereinafter as UAPA):

UAPA was enacted with the object to make powers available for dealing with activities directed against the integrity and sovereignty of India, and thus for more effective prevention of certain unlawful activities of individuals and associations. The UAPA empowers the Central Government to declare an association, with the objective of carrying out unlawful activities as defined under the section 2(f) of the Act, as an unlawful association by a notification in the official gazette. Continued membership of an unlawful association and taking part in or committing or advising or inciting any unlawful activity is punishable with an imprisonment of two years and seven years respectively besides fine.

The UAPA looked a very potential preventive measure to combat all anti-national activities including terrorism. The provision relating to reference of notification (declaring of an association unlawful) to a tribunal for adjudication, is a good check on ‘state terrorism’. However the recent amendments in the UAPA in 2004 and 2008 have made the Act even more draconian than TADA and more vulnerable to abuse than POTA.

The 2004 amendment gives more scope to the police when it comes to the admissibility in evidence of telephone and e-mail intercepts. The police are given power to produce intercepts in the court free from any safeguards provided by the repealed POTA. UAPA, earlier meant to ban any unlawful association, under the 2004 amendment has a separate chapter for banning terrorist organization. But the procedure for banning a group on the charge of terrorism is easier than to ban it on the milder charge of unlawful activities. The government cannot ban any group for unlawful activities without having its decision ratified within six months by a judicial tribunal, whereas, there is no such requirement if the ban is on the charge of terrorism.

The more far-reaching and controversial anti-terror measures are located in the 2008 Amendment which has tried to strengthen the four decade old organized crime legislation of nineteen sixty-seven by incorporating new anti-terror measures such as redefining more elaborately the term ‘Terrorist Act’[33], conferring special powers of arrest, search and seizure in respect to terrorism[34], extension of period of detention in police remand to thirty days and detention pending investigation to one hundred and eighty days[35], abolition of anticipatory bail[36], limitations on right to bail[37], abolition of right to bail in case of an unauthorized or illegal foreign accused[38] and changing the rule of presumption and shifting the burden to the accused on presentation of material incriminating evidence against the accused[39] etc. What makes these amendments as hard anti-terror measure and turns people to hail them as such, are longer period of detention of one hundred and eighty days without the requirement of a charge sheet; substantial diminution of bail right to the accused and alteration of the rules of presumption and burden of proof.

The Government has claimed that appropriate safeguards have been adopted to prevent the misuse of the provisions.[40] However, the history is witness to the abuse and misuse of such arbitrary and wide scoped provisions. The 2008 amendment is nothing less than an incarnation of POTA, in an even more brutal and draconian form, and the blatant misuse that followed it.

The National Investigation Agency Act, 2008 (hereinafter as NIA):

The NIA Act has for the first time envisaged the setting up of an investigation agency at the national level that is conferred with the power to investigate throughout the territory of India cases relating to nine categories of serious offences (seven under the special legislations and two under the Penal Code). Although, it is generally believed that the NIA Act relates only to the function of investigation, but the reality is it also has provisions relating to prosecution and trial of Schedule Offences. Chapter IV is devoted to the constitution, composition and sitting of the Special Court[41]. Section 16 lays down the special procedural rules that the Special Court would follow for trials of the Scheduled Offences. Section 16(1) empowers the Special Court to take cognizance of offences on receiving a complaint of facts that constitute the offence, even without committal proceedings.

Another concern is the unfettered discretion of Special Courts to hold in camera (closed) proceedings. The NIA authorizes the court to hold all or any proceedings in camera “if [it] so desires.” While there is sometimes a need for in camera proceedings, to ensure protection of both witness or defendant, this open-ended allowance for closed trial proceedings conflicts with the basic fair trial right of all defendants to a public trial.[42] Another significant departure from ordinary trials is that the Special Court may, if it thinks fit and for reasons to be recorded by it, proceed with the trial in the absence of the accused or his pleader and record the evidence of any witness[43].

The aforesaid procedural variation marks a departure from the due process guarantees in at least, two important respects; first, requirement of evidence to be taken in presence of accused[44] and second, requirement of according to accused the right to be defended by a pleader of his choice.[45] But because these new procedural standards are to apply not only to terrorism, but eight other categories of scheduled offences and that this law is not for a limited time, impel us to think of its wider implications. For example in the high profile Malegaon Bomb Blast case, in which eleven accused are already charge-sheeted, how would anyone be able to appreciate if the Special Court were to hold trials in the absence of the accused or the trials are held without affording any opportunity to the accused to be defended by a pleader? Would such a trial be described as a ‘fair trial’ by any civilized standards? Even the most articulate defenders of “fresh balancing of the interest of liberty and security,” would find it difficult to call it a trial, much less a fair trial.

CONCLUSION

Terrorism has been a part of this human civilization since its inception and is not a concept of the new economic world but the means, ways and methods of terrorizing has become more gruesome, destructive and lethal in due course of time. Terrorism is not a passing phase, and is destined to continue. Anti terrorism laws are an absolute necessity for society and it should not be treated as political issues even if the implementation is questioned on the grounds of human rights violations.

The predicament is not the arbitrary provisions under the anti-terror laws. The dilemma is the abuse and misuse of these provisions for political as well as communal considerations. From TADA to POTA to UAP Amendment Act, 2004, considerable concern has been expressed about the possibility of misuse. In fact, the implementation of these legislations show that they have been misused for incarcerating political opponents, to serve communal purposes, and without application of mind against innocent citizens including minors, however, in different periods of time.

In the backdrop of such atrocious incidents of exploitation of the previous legislations, it is difficult rather impossible to even dream a fair and just implementation of the existing laws. The NIA Act, 2008 and the UAP Amendment Act, 2008, combined together, are more draconian than both TADA and POTA.

This problem however, is not India specific. The detention of people in the United Kingdom, the terrorist laws in Spain and of course the measures of the United States are examples where developed legal systems are compromising civil liberties and rights in interests of national security. There is an unequivocal settlement that national interests are of primary importance. Alan Dershowitz once emphasized that the Government loses credibility when it cannot tackle issues along due process concerns and resort to other means of prosecuting people.[46]

“He that would make his own liberty secure must guard even his enemy from repression and the violation of human rights.”

– Thomas Paine 

[1] [1994] 3 SCC 569

[2] Cindy C. Combs, Terrorism in 21st Century,  10 (2003)

[3] Rajeev Kumar Sinha, Crimes Affecting State Security, 120 (1995)

[4] Dhananjay Mahapatra, Terror Talks at 53rd Commonwealth Conference, The Times of India, Sep 26, 2007 at 13

[5] Section 15, Terrorist and Disruptive Activities (Prevention) Act, 1987

[6] Section 22, Terrorist and Disruptive Activities (Prevention) Act, 1987

[7] Section 9, Terrorist and Disruptive Activities (Prevention) Act, 1987

[8] Section 11, Terrorist and Disruptive Activities (Prevention) Act, 1987

[9] Section 14, Terrorist and Disruptive Activities (Prevention) Act, 1987

[10] Section 21, Terrorist and Disruptive Activities (Prevention) Act, 1987

[11] Supra at 1

[12] Id. At 580

[13] Section 3(5), Prevention of Terrorism Act, 2002

[14] Section 4, Prevention of Terrorism Act, 2002

[15] Section 29(5), Prevention of Terrorism Act, 2002

[16] George Iype, Terrorizing the Politicians, The Tribune, Aug 14, 2002 at 10

[17] Id.

[18] Rakesh Sinha & Kavita Chowdhury, POTA Fact: Jharkhand Has a Lot More Terror Than J&K, Indian Express, Mar. 28, 2003 at 8

[19] Akshaya Mukul, Jharkhand, J&K Send POTA Lists, The Times of India, Jan. 17, 2004 at 4

[20] Inder Malhotra, The Use and Misuse of POTA, The Hindu , Oct. 10, 2003 at 9

[21] Stavan Desai, In Gujarat, Only Godhra Case Is Fit Enough for POTA, The Indian Express, Apr. 3, 2003 at 1

[22] Id.

[23] Harsh Mander, State Subversion, Gujarat’s Victims Completely Isolated, The Times of India, Nov. 22, 2003 at  5

[24] Supra at 10

[25] Id.

[26] Supra at 12

[27] Id.

[28] Ajay Uprety, Playing a Crafty Game: Mayawati Kicks Both Friend and Foe on the Shin, The Week, Feb. 9, 2003 at 11

[29] Shujaat Bukhari, Yasin Malik Released, The Hindu, Nov. 12, 2002 at 1

[30] Mukhtar Ahmad, Yasin Malik Rearrested After Getting Bail in POTA Case, The Indian Express, July 20, 2002 at 4

[31] Sathiya Moorthy, TN Police Arrests MDMK Leader Vaiko, The Frontline, July 11, 2002 at 17

[32] Id.

[33] Sections 15,16,17 & 18, Unlawful Activities (Prevention) Act, 1967

[34] Sections 43A to 43D, Unlawful Activities (Prevention) Act, 1967

[35] Section 43 (2) (a) and (b), Unlawful Activities (Prevention) Act, 1967

[36] Section 43D (4), Unlawful Activities (Prevention) Act, 1967

[37] Section 43D (5), Unlawful Activities (Prevention) Act, 1967

[38] Section 43 D(7), Unlawful Activities (Prevention) Act, 1967

[39] Section 43E, Unlawful Activities (Prevention) Act, 1967

[40]WordPress, 2008, Lok Sabha passes central terror agency bills, Available at: http://islamicterrorism.wordpress.com/2008/12/17/lok-sabha-passes-central-terror-agency-bills-national-investigating-agency-bill-and-the-unlawful-activities-prevention/ [Accessed 15th Feb, 2010]

[41] Section 11, 12, 13 & 14, National Investigation Agency Act, 2008

[42] Report of Human Rights Watch, Back to the Future: India’s 2008 Counterterrorism Laws, page 18 (27th July 2010)

[43] Section 16(5), National Investigation Agency Act, 2008

[44] Section 273, Code of Criminal Procedure, 1973

[45] Section 304, Code of Criminal Procedure, 1973 and Articles 22(1) and 39 A, Constitution of India

[46] Alan M Dershowitz, Rights From Wrongs: A Secular Theory of the Origin of Rights, 14 (2004)

Human Rights Education in India

Posted on | by wasifreza molla | Leave a Comment on Human Rights Education in India

“All human beings are born free and equal in dignity and rights”. So stated Article 1 of the Universal Declaration of Human Rights in 1948. This is what the Indians have been preaching since times immemorial as it has become the immemorial customs of our nation .Human Rights are a fundamental value. There is a long Indian tradition of standing up for the weak against abuse by the strong. Upholding human rights values in every aspect is firmly in our tradition. The ”Great Mauryan emperor Ashoka the great renounced the path of violence after the massacre in the war of Kalinga ” The ”Great Moghul,” Akbar the Great granted religious minorities legal status in his realm, One of the most influential was Mahatma Gandhi’s movement to free his native India from British rule. It is the core of our Constitution and the heart of our national interest today. But the values that we stand for – freedom, human rights, the rule of law – are all universal values. Given the choice, people all over the world want them. But it is regretting that India who was once looked up by whole world as the pioneer of these values is now groveling in lowly dust of atrocities and human rights abuse. Human rights abuse is sadly a reality in Indian society, it is not just an affront to the values of tolerance, freedom and justice that underpin our society. It is also a tragic waste of human potential.
The Need for Human rights Education
The importance of human rights education hardly requires any over emphasis. It has a crucial role in preventing human rights violations from occurring.
The United Nations proclaimed that human rights education is “training, dissemination and information efforts aimed at the building of a universal culture of human rights through imparting knowledge and skills and the moulding of attitudes”. These efforts are designed to strengthen respect for human rights and fundamental freedoms, facilitate the full development of human personality, sense of dignity, promote understanding, respect, gender equality and friendship to enable all persons to participate effectively in a free society, and further activities for maintenance of peace.
Human rights education, training and public information are, therefore, necessary and essential for the promotion and achievement of stable and harmonious relations among the communities and for fostering mutual understanding, tolerance and peace. Through the learning of human rights as a way of life, fundamental change could be brought about to eradicate poverty, ignorance, prejudices, and discrimination based on sex, caste, religion, and disability and other status amongst the people.
Human rights Education in India
It may be said that in India that the content of human rights education is not different to what was taught by way of religion, be it Hinduism, Buddhism, Christianity or Islam. There is lot of truth in that statement. The quintessence of human rights is also the basic essence of all religions, Love, compassion, loving kindness are the same. However, while teaching religions we confined the obligations arising from these doctrines only to their followers. Human rights could bring in a universal aspect to moral and ethical education. And we in our divided societies are in great need of this On the other hand in the context of rapid secularization we could still retain a basic common ground for respect for each other. We could still be our brothers’ keepers and withstand value systems which only promote selfish ways of life.
Indian textbooks barely mention human rights. Indirect references to human rights are included in the Directive Principles of the Constitution of India and in civics and history textbooks. Most universities in India do not offer human rights education, although some have three-month to one-year postgraduate courses on human rights. Section 12(h) of the Protection of Human Rights Act, 1993, requires the Commission ”to spread human rights literacy among various sections of society and promote awareness .The National Human Rights Commission of India and many NGOs have launched a countrywide public information campaign for human rights. It aims to make everyone more conscious of human rights and fundamental freedoms, and better equipped to stand up for them. At the same time, the campaign spreads knowledge of the means which exist at the international and national levels to promote and protect human rights and fundamental freedoms.
CONCLUSION


Any education to be effective needs to be contextualized too. Thus it is not enough to teach abstract principles of human rights taken from United Nations’ documents or our Constitutions. Our historical context as nation as well as local contexts need to be reflected in human rights education. The contextualizing of human rights is essential for nurturing of peace. Creative reflections on local situations from a human rights perspective would help the schools greatly, to become the societies’ most important peace makers. Some say that we Indians should have less rights than people living in Western countries. They say, the human rights concepts are Western. Only people who have all the rights could say this to people who have much less rights. We keep masses of humanity without rights and condemn the growing consciousness of rights as a Western one. This would mean that to be Indian one has to put up with one’s bondage, one must remain submissive, one must eat less and work more. Is that what our women, and our children need to believe. Is that what our workers and peasants need to believe while multinational companies with the help of our elite take away the fruit of their labours, and the fruit of our lands. The relativist theory, though couched in nationalist terms is not nationalist at all. It work for the benefit of big companies Western or otherwise.

protection of these rights through publications, the media, seminars and other available means”.

In an interdependent global economy, our own prosperity and security can best be guaranteed by tolerant, stable, democratic societies in the regions where we travel and trade. Human rights violations in one country are the concern of other states. That means that the UK, together with other like-minded states, has a duty to respond to massive violations of human rights and international humanitarian law. By making the world better for others, we make it better for ourselves.

‘RIGHT TO DIE’-TRULY A RIGHT?

Posted on | by Sankalp Kapoor | 2 Comments on ‘RIGHT TO DIE’-TRULY A RIGHT?

       The implication of the term “euthanasia” is itself shrouded in ambiguity. Derived from the Greek word “euthanatos” connotes “good death”. To reiterate the judicial pronouncements in the Indian context, good or happy death would imply the ebbing of life the natural way. Euthanasia is defined as an “intentional killing by an act/ omission of person whose life is felt is not to be worth living.” In the given context “Person” includes not necessarily the patient but even a medical practitioner assisting in the process.

        On the very aspect “Right to die” brings in juxtaposition and an opposite sense that how can it be a right if you are using it to give away all your rights? The right to die is used as a guise to support those concepts which are against the preservation of life. Euthanasia and suicide though are different conceptually but are species of the same genre. The apex court of India through a five judge constitutional bench in Gian Kaur v State of Punjab held that “right to life” is inherently inconsistent with the “right to die” as is “death” with “life”. Article 21 of Constitution of India which includes right to live with human dignity does not connotes curtailment of the natural span of life in case the required dignity is absent. It only includes a dignified sustenance of life not an end to it, though it may be furthered to mean “a dignified death” but not unnatural extinction of human life

          In M.S Dubal v. State of Maharashtra SC said that the “right to life” provided by the Constitution may be said to bring into its purview, the right not to live a forced life, the plea that euthanasia be legalized was discarded. It was held that as euthanasia involves the intervention of a third person, it would indirectly amount to a person aiding or abetting the killing of another, which would be inviting Section 306 of the I.P.C. Any form that involves unnatural termination of human life should be regarded as illegal. The fact that even an attempt to suicide is punishable in India goes to show the extent of credibility accorded to the sanctity of life and the right to life as a whole. 

           Now, even if we consider the aspects of “right to die” it brings with it a sense of ambiguity. The phrase “terminally ill” has no precise definition and its ambit cannot be clearly identified. Medical experts have acknowledged that it is virtually impossible to predict the life expectancy of a particular individual. According to the oxford English dictionary “terminally ill” means “Persons with an incurable or irreversible illness at the end stage that will result in death within a short time” so if the death will take place in a “short time” then why should human indulgence be used for the furtherance of it. Moreover, the Hippocratic oath taken by medical practitioners calls for nursing, care giving and healing but not for ending the life of a patient. It is also a right argument that if we are not able to give a life to anyone that why should we be given a right to take it? Thus, instead of encouraging a patient to end his life, the medical practitioners should encourage the patients to lead their painful life with strength which should be moral as well as physical.

           Blackstone’s dictionary defines homicide as “killing of a human” so in this sense no difference remains between homicide and euthanasia. Since in cases of euthanasia or mercy killing there is an intention on the part of the doctor to kill the patient, such cases would clearly fall under clause first of Section 300 of the Indian Penal Code, 1860. However, as in such cases there is the valid consent of the deceased Exception 5 to the said Section would be attracted and the doctor or mercy killer would be punishable under Section 304 for culpable homicide not amounting to murder. On the other hand, the chances of the legalization being misused are also very high. What if the patient is in coma and is unable to make a decision, should the relatives be allowed to make it? This is the era of family disputes over property and money. People could also get away with cold-blooded murder. Legalizing voluntary Euthanasia would lead to involuntary euthanasia. Euthanasia could be legalized, but the laws would have to be very stringent. Every case will have to be carefully monitored taking into consideration the point of views of the patient, the relatives and the doctors. But whether Indian society is mature enough to face this, after all it’s a matter of life and death, is yet to be seen.

         It is feared that placing the discretion in the hands of the doctor would be placing too much power in his hands and he may misuse such power. This fear stems largely from the fact that the discretionary power is placed in the hands of non-judicial personnel (a doctor in this case). This is so because we do not shirk from placing the same kind of power in the hands of a judge (for example, when we give the judge the power to decide whether to award a death sentence or a sentence of imprisonment for life). But what is surprising is that the fear is of the very person (the doctor) in whose hands we would otherwise not be afraid of placing our lives. A doctor with a scalpel in his hands is acceptable but not a doctor with a fatal injection.

           Life is a gift, and even a life of pain is a life at least. Some people feel we don’t choose when to be born and we should not be given the right to choose when to die. On the contrary, others feel that a life of pain is not a life but an imposition and we should be at least allowed to end it in a dignified peaceful manner. Euthanasia could be legalized, but the laws would have to be very stringent. Every case will have to be carefully monitored taking into consideration the point of views of the patient, the relatives and the doctors. But whether Indian society is mature enough to face this, after all it’s a matter of life and death, is yet to be seen.

       “No life that breaths with human breath has ever truly longed for death”

Federal Principle Under the Indian Constitution – A Perspective

Posted on | by Mohan Rao Bolla | 1 Comment on Federal Principle Under the Indian Constitution – A Perspective

A constitution is the legal document in which various governing principles are established, functions and procedural aspects of the government are specified under which different organs of the government work. Constitution is the supreme law of the land which is ascertained by Kelsen as the “Grund Norm” in his Pure theory of law. American Constitution is the pioneer of all the federal constitutions followed by the Canadian and Australian constitution respectively. It may be traced that the Federal principal was adopted in the Government of India Act 1935 and the same was reinserted in the draft constitution by the Constitution Assembly

Dr. B. R. Amedkar feels it convenient to describe Indian constitution as both Federal and Unitary. He opines that it works as a federal constitution under the normal condition and as Unitary during the war or crisis. Federal Principle:The principle may be understood as ‘the method of dividing powers, so that the general and regional governments are each within a sphere of co-ordinate and independent; and not sub-ordinate to each other- Professor Wheare. The existence of co-ordinate authorities independent of each other is the gift of the federal principal where as the supreme sovereign power is vested with the only central organ which ultimately controls the state in a unitary form of government. Federalism is not static but a dynamic concept. It is always in the process of evolution and constant adjustments. It is also recognized that federalism is one of the basic features of the Constitution in Kesavananda Bharathi’s case.

Federal Features:

• There must be a written and rigid Constitution. Constitution being the supreme law of the land, it must be rigid so as to uphold its supremacy.

• Written constitution is essential if federal government is to work well.

• Distribution of powers, between the central Government and State governments is the most essential and ordained feature of a federal constitution. The distribution must be such that both the governments should exist in a co ordinate and independent in their own spheres.

• Independent and impartial judiciary is to uphold the supremacy of the constitution by interpreting the various provisions and settling the disputes between the laws made by the governments and the Constitution.

In order to be called federal it is not necessary that a Constitution should adopt federal principle completely. It is enough if the federal principle is the pre-dominant principle in the constitution. The mere presence of Unitary features in a constitution which may make the Constitution ‘quasi federal’ in law, does not prevent the Constitution from being pre-dominantly federal in practice. ( H. M. Seervai). Professor Whear described India as neither Federal nor Unitary but ‘Quasi Federal’. Indian Constitution came into existence on 26th January 1950 adopting the federal principle pre dominant. The doctrine of pre dominance as ascertained by HM Seervai does not hold good as the degree of pre dominance is negligible compared to that of other Federal Constitutions.

According to M. C Setalvad, ” the constitution of India having been drawn in mid 20th Century presents a modified form of federation suitable to the special requirements of the Indian society. ” Article 1 of the Constitution describes as a Union of States. Dr B. R. Ambedkar justifies it to be advantageous to describe India to be a union of States, though it is federal in nature. Accordingly, during the crisis it shall be Unitary in nature. Prof. Alexandrowitz says that India is supposed to have quasi federation mainly because of the articles 3, 249, 352 to 360 and 371.

It may be aptly be stated that he supports Lord Ambedkar’s view. Power to alter the boundaries: Article 3 empowers the Parliament to alter the boundaries of states even without the consent of the states which dilutes the federal principle. State of West Bengal in its memorandum submitted to the President of India compares article 3 to be a damocle sword hanging over the heads of the states. HM Seervai defends the power of the Parliament to alter the boundaries of the states that ” by extra constitutional agitations the states have forced parliament to alter the boundaries of States”

In practice, therefore the federal principle has not been violated. ” But, Seervai agrees that the power vested in the Parliament was a serious departure from the federal principle. History reveals that there has been no answer or rationale basis for such a serious departure. Distribution of powers: Distribution of powers is one of the pre requisites of a federation of states. The object for which federal state is formed involves a division of authority between the national government and the separate states- Prof. A. V. Dicey.

Parliament can legislate with respect to a matter under the State List a) in the national interest(Art. 249) or b) if a proclamation of emergency is in force (A250). The provisions resolving inconsistency between central and state laws is also weighed in favour of the centre (A251 and 254)-AG Noorani. Gwyer C. J. observed that the conferment of residuary power upon the centre has been done following the Canadian constitution. The U. S and the Australian constitutions which are the indisputably federal confer the residuary power on the states.

The non congress opposition parties conferences [held in 1986-87] resolved to demand for the conferment of residuary power on the states as a measure to strengthen the federal principle.

• Under the present provisions of our Indian Constitution the States are entitled to a share of the centers revenues derived from only a few taxes principally income tax and excise duties ( @ 45% approximately)

• Finance Commission constituted under Article 352 as the balance wheel of the Indian Federal financial relationship

• Article 365 dilutes the Federal Principle by imposing President’s Rule in the State which fails to comply with or direction of the Center. Seervai defends the power as it is open for judicial review. But it may be noted that the imposition of President’s Rule effects the independence of the States. However, practically speaking when once a democratically constituted government is de throned through such imposition of President’s Rule it is not only un- democratic but it costs burden on the exchequer of the State for conducting re-elections. The judicial review is a time consuming process and sometimes, by the time the decision is given the tenure of office of the government may expire. Therefore, conferment of such blanket power on the Center is undesirable as its effects the democratic process and dilutes the Federal Principle.

• President is competent proclaim Emergency in any part or whole of the country under Article 352 if he is satisfied that grave emergency exists. The 44th Amendment to the Constitution replaced the words, ” internal disturbance” and inserted ” armed rebellion”. The proclamation of Emergency in 1975 by the unilateral decision of the then Prime Minister of India Mrs Indira Gandhi, led to the Amendment of the Constitution and the power has been much mis used during the emergency.

• In Rajasthan v Union of India the Supreme Court has re iterated its dictum in West Bengal v. Union that the extent of Federalism is largely watered down by the needs of progress and development of the country.

• State of West Bengal submitted a memorandum suggesting certain changes in our Constitution to strengthen the Federal principle.

Parliament’s power to alter the boundaries of a state under Article 3 should be subject to the State’s approval. Residuary power under Article 248 of the Constitution should be conferred upon the States. Deletion of Article 249 and Article 356 to 360 would likely to strengthen the federal Principle.

• It is unfortunate to note that there has not been proper utilization of Article 263 of the Constitution. This is high time to re constitute the Inter State Council as an autonomous, independent and high powered. It must be entrusted with the responsibility to deal with all the issues between the center and the states. Finance Commission and Planning commission should be made independent autonomous authorities and the appointments shall be made in consultation with the States. Adequate autonomy must be facilitated to the States through the conferment of power on the States and by suitably amending Articles 3, 249 and 346 respectively. Conferment of residuary power on the States is also desirable. Governors shall be appointed by the Inter state council. Disputes if any between the Center and the States shall be expeditiously decided through constitution of Special Constitutional Benches.

Federal Principle under the Indian Constitution – a perspective – Mohan Rao B. former Principal In charge, Rajiv Gandhi Institute of Law, Kakinada [“Indian Constitution is neither Federal nor Unitary, but it is a mixer of both…” – this paper attempts to comment on the statement and to suggest measures to strengthen the Federal principle under the Indian Constitution.]

Mohan Rao Bolla, Former Principal In Charge, Rajiv Gandhi Institute of Law, Kakinada

Article Source: http://EzineArticles.com/?expert=Mohan_Rao_Bolla

THE NATIONAL IDENTIFICATION AUTHORITY OF INDIA BILL 2010

Posted on | by Sharmila Bellur | 2 Comments on THE NATIONAL IDENTIFICATION AUTHORITY OF INDIA BILL 2010

From:  Sharmila Bellur

 AN ANALYSIS OF THE DRAFT BILL

INTRODUCTION

The Unique Identification Authority of India was constituted and notified by the Planning Commission on 28th January, 2009 as an attached office under the aegis of Planning Commission and the National Identification Authority of India Bill, 2010 (referred to as “the Bill” hereinafter), was circulated for public opinion in June. 2010. The Bill, concentrates predominantly on providing legal framework for the establishment of the National Identification Authority of India (referred to as Authority hereinafter) and lays down, in principle, the various functions of the Authority in the context of issuing unique identity numbers i.e., Aadhaar numbers to the residents of India and certain other persons[1]. The Aadhaar numbers can be verified and authenticated online through a setup mooted in the draft Bill and which is to be defined in toto in the Regulations appended to the Bill. The Aadhaar numbers are to be based on biometric information[2] and demographic information[3] of the individual. The entire endeavor is directed towards decreasing identity silos and establishing authentic identity, while evading identity duplication and identity theft.

A CONSPECTUS OF THE DRAFT BILL

The key contents of the Bill are:

Chapter I– defines inter alia Aadhaar number, Aadhaar number holder, authentication, biometric information, Central Identities Data Repository, demographic information, enrolling agency, Registrar and most pertinently, the term resident, in the context of obtaining identity, identity establishment and its authentication.

Chapter II– enunciates the process of collection of personal demographic and biometric information of an individual while providing for an explicit list of information not to be collected for this purpose and provides for the establishment of Central Identities Data Repository (CIDR). It lays down the characteristics and properties of the Aadhaar number and also provides for its periodic update.

Chapter III– lays down the statutory foundation of the National Identification Authority of India. It further makes provisions for the offices of the Chairman and Members of the Authority; and the myriad powers and functions of the Authority.

Chapter IV– makes provisions pertaining to appropriation, accounting, audit and annual reporting to the Central Government of the funds allocated to the Authority by the Parliament.

Chapter V– envisages the constitution of an independent Identity Review Committee for the appraisal of the working of the Authority and the usage of Aadhaar numbers.

Chapter VI– vests the responsibility for identity information of individuals including the information stored in the CIDR in the Authority. It provides for an individual’s access to one’s own information, alteration of such information by the individual and lays down two scenarios for compulsory disclosure if information, i.e., court orders and in the interest of national security.

Chapter VII– enumerates the various offenses in the context of false identity establishment, identity manipulation, disclosure of identity information, unauthorized collection of identity information, unauthorized access to the CIDR, tampering of the CIDR and identity theft; and the penalties for such offenses within the purview of the Bill.

Chapter VIII– excludes the Authority from the realms of taxation and litigation for acts done in good faith, while providing for scenarios in which the Central Government can supersede the Authority. It lays down the law pertaining to Rule-making by the Central Government and Regulations-making by the Authority, while providing for accountability of the Central Government and the Authority in this context, to the Parliament.

THE BASIC POSTULATES OF THE DRAFT BILL

Statutory Body: The NIDAI will be a statutory body created by an act of the Parliament. Consequently, it will be accountable to the Parliament and all its actions will be amenable to judicial review.

Facilitating access to benefits and services: The objective of the Bill states implicitly that issuance of Aadhaar numbers to individuals residing in India and to certain other classes of individuals is pertinent in warranting their access to benefits and services.

The Aadhaar number will only be proof of identity: The function of NIDAI would be to provide Aadhaar number [4]on receipt of the individual’s demographic and biometric information and authenticate the identity of the number-holder in the scenario the service provider demands possession of Aadhaar numbers and its authentication, as a pre-condition for rendering service. It only guarantees identity, not rights, benefits or entitlements. The NIDAI will thus be an interface between the Aadhaar number-holder and service provider.

Implementation: The details pertaining to the working of the Authority and the implementation of Aadhaar numbers is left to the realms of the Regulations[5], the formulation of which falls within the powers of the Authority itself.[6]

The term ‘Resident’: The definition of Resident[7] adopted in the Bill is not the same as the existing definitions in, inter alia, Section 6, the Income Tax Act, 1961 and Section 2 (v), Foreign Exchange Management Act, 2002 which defines the term in co-relation to the number of days a person has been continuously residing within the territory of India. The definition of the term resident is not akin that of the term “ordinarily resident” in Section 20 of the Representation of People’s Act, 1950.

Positive and negative list of the biometric and demographic information to be collected: The Bill expounds the various biometric and demographic information that the individuals seeking Aadhaar numbers has to disclose and expressly lays down a negative list of fields in which the Authority cannot collect information.[8] The purpose of the negative list is possibly to avoid the possibility of profiling individuals[9]  

Authentication: The Bill contrives a Central Identities Data Repository for verification of identity on the basis of information, which maybe verbal, documentary and biometric in nature, provided by the individual who seeks authentication of identity. Therefore, while Section 2 (d) of the Bill creates a presumption of online authentication- a real time yes/no response to an authentication query, which will be a purely mechanical exercise based on verbal and biometric information, it also suggests the possibility of offline/physical authentication with the aid of documents.

Voluntary Enrollment in a partnership model: The Bill in Section 3(1) implicitly suggests that the issue of Aadhaar numbers will be voluntary. The Bill provides for enrolling agencies and registrars as independent agencies whose function would be to enroll residents.

CRITICAL ISSUES

Lack of clarity on voluntarily obtaining Aadhaar number: While the objective of the Bill states that the issuance of Aadhaar numbers will facilitate their access to benefits and services, Section 3(1) of the Bill suggests it is not mandatory for residents to obtain Aadhaar numbers. There’s an evident discrepancy between the object of the Bill and its contents. Moreover, there are no provisions in the Bill giving over-riding effect to the Bill over all other future legislation that make possession of Aadhaar number mandatory for availing benefits and services. Though the basic premise has been that obtaining Aadhaar number is voluntary, the Bill does not espouse a clear mandate on the issue. 

Accountability of the Authority with respect to identity information: The role of the Authority is to only provide yes/no response to an authentication query which will be made on the basis of biometric information and the Aadhaar number of the individual, which he voluntarily discloses to third parties/service providers. The Authority is not accountable for infringement of privacy by third parties/service providers who seek Aadhaar numbers for providing. Thus, in spite of the vulnerability of identity information to misuse, the responsibility of the Authority assumes no responsibility for identity information only to the extent the information is communicated to and held by, the CIDR

Utility and implementation of Aadhaar number is not specified:  The spectrum of usage of the Aadhaar numbers has not been laid down in the Bill. In spite of large sums of budgetary allocation[10], human resource allocation and promises to revolutionize the access to benefits and services, the Bill discloses very little on how the proposed objectives can be achieved.

Moreover, in the absence of a clear mandate, if all service providers require possession of Aadhaar numbers to acquire services, it will result in excessive surveillance and face opposition on the ground of evasion of privacy and civil liberties, as faced by the Access Cards[11] in Australia. The implementation of the Bill, in the absence of provisions initiating it, will be left to the discretion of service providers, who will have to render services subject to possession of Aadhaar numbers in order to compel individuals, who wish to avail their services to obtain Aadhaar numbers.

Unorthodox definition of the term resident: The definition adopted in Section 2 (q) accords wide scope to the Bill. However, it lacks clarity and the Bill circumvents taking of a firm stance on the inclusion of Indians residing abroad temporarily, Non-Resident Indians, Persons of Indian Origin and Refugees, under the garb of the Act.

No accountability for lapses on the part of the Registrars and Enrolling agencies: The Bill on the one hand creates the machinery for disclosure of personal information by individuals to the Registrars and Enrolling officers under the aegis of the Authority, but it makes no provision for accountability of the Authority for lapses on their part in performing the functions bestowed upon them. Therefore, though the Bill lays down the powers and functions of Registrars and Enrolling agencies as functionaries of the Authority, it does not hold the Authority accountable for privacy evasion, information disclosure or identity theft at the stage of enrollment.

Levy of fees: Sections 5 (1) and 23 (o) provide for levy of fees by the Authority, Registrars and Enrolling agencies for the services provided by them i.e., for issuing Aadhaar number and its authentication. This is an obvious conflict in a welfare oriented measure and may deter individuals from voluntarily acquiring Aadhaar numbers, as was the case with National Identity Card (NIC)[12] in Pakistan.

Identity data sharing: Section 23 (k) of the Bill is a blanket provision giving the Authority leverage to divulge identity information to agencies engaged in delivery of public benefits and public services in a manner prescribed in the Regulations, subject to written consent by the number-holder. This provision renders identity information susceptible to misuse and fraud.

Strains of dependence on technology: At the crux of the system of identity establishment and authentication provided for in the Bill, is technology. Even with a five-9 (99.999) efficiency in the system for authentication of Aadhaar numbers, the number of errors for a population of 1.2 billion who shall presumably come to hold Aadhaar numbers, is very high. Therefore, the system in place to authenticate identity of individuals, might deny service to Aadhaar number-holders due to faults inherent in it.

THE DRAFT BILL AND THE CONSTITUTION OF INDIA

Article 12, definition of State: The NIDAI is a statutory body and is under the control of the Central Government and hence falls within the purview of “State” as defined under Article 12 of the Constitution of India[13]. Consequently, the NIDAI will be subject to the limits of Fundamental Rights, which means that its actions and decisions can be challenged with reference to the Fundamental Right under the writ jurisdiction of the Supreme Court and the High Courts; and it will also be subject to the discipline of Administrative Law.

Article 14, Right to Equality: The Bill restricts the ambit of the Act to individuals usually residing within the territory of India and the meaning of the term “ordinarily residing” will be enunciated by the Authority in the Regulations. Therefore, the decision regarding the ambit of the Act will be a policy decision of the Authority through delegated legislation and the question as to whether this is violative of the fundamental right to equality of persons not “usually residing” in India, but who are entitled to the right to equality under the Constitution of India, cannot be raised in a court of law, unless the exclusion is found to be arbitrary and unreasonable.[14]

Article 19 (1) (a), Right to Freedom of Speech and Expression: The fundamental right to freedom of speech and expression includes the freedom of silence. [15] It may be stated that freedom of expression includes the right to not express. [16] Therefore, any provision making disclosure of identity information by individuals, mandatory, would stand in violation of Article 19 (1) (a).

Article 21: Right to Life: In R. Rajagopal v. State of Tamil Nadu[17], the Supreme Court held that the right to privacy is implicit in the right to life and personal liberty. The “right to privacy” means a “right to be left alone”. None can publish anything concerning a person, his family, marriage, procreation, motherhood, child bearing and education among other matters without his consent. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages. It is relevant to note here that the Bill does not provide for compensation to individuals for infringement of their privacy at the hands of the Authority.

The Bill provides for collection of demographic and biometric information of residents, authentication of the identity of such persons and linking of  various services requiring authentication of identity to the UIDAI while laying down provisions for confidentiality of resident information and protection of the privacy of the resident. The question of law is whether such acts are violative of Article 21 or within the ambit of exceptions to right to privacy. Pertinent here are the exceptions to the Right to Privacy laid down by the Supreme Court, according to which any publication concerning a person’s right to privacy is unobjectionable if it is based upon public records [18] and the right to privacy is subservient to security of the State. [19]

[1] Preamble, The National Identification Authority Bill, 2010

[2]§ 2 (e), The National Identification Authority of India Bill, 2010

[3] § 2 (h),The National Identification Authority of India Bill, 2010

[4] a random 12-digit number bearing no attributes or identity data relating to the Aadhaar number-holder

[5] See § 9, 10, 18 (1),  20 (3), 23, 30, 31, 32, 54, The National Identification Authority of India Bill of 2010

[6] This is akin United Kingdom’s Identity Cards Act, 2006 which created the legal framework for the introduction of identity cards, but the detailed arrangements regarding the information on the card, application for an identity card or the fee to be charged and the data sharing provisions were left to the purview of secondary legislation.  The Identity Documents Bill, 2010-11 which seeks to repeal the Identity Cards Act, 2006 and the subsequent secondary legislation in order to restore freedom and civil liberties; and save the tax payers around £86 million over the next four years, is now before the British Parliament.

[7] § 2 (q),The National Identification Authority of India Bill of 2010

[8]§ 9, The National Identification Authority of India Bill of 2010

[9] It refers to unauthorized/illegitimate use of information for causing hardships to individuals, on the basis of his race, religion, caste, tribe, ethnicity, language, income or health.

[10] Rs. 1900 crores was assigned to the UIDAI in the Union Budget 2010-11

[11] The Access Card is a non-compulsory health and social services access card which would have required Australians to present the smart card anytime they dealt with certain federal departments, including Medicare, Centrelink, the Child Support Agency, or Veterans’ Affairs.

[12] Obtaining NIC cost Rs. 100 and this inevitably reduced the number of people who could afford it and so, in June 2008, the federal government announced it would start issuing Computerized National Identity Cards for free.

[13] Pradeep Kumar Biswas v. Indian Institute of Chemical Biology (2002) 5 SCC 1857

[14] Maharashtra S.B.S. & H. S. Education v. P.B. Kumarseth AIR 1984 SC 154

[15] Bijoe Emmanuel v. State of Kerala AIR 1987 SC 748 

[16] National Bank of Canada v. R.C.U (1984) 1 SCR 269 

[17] AIR 1995 SC 264

[18] R. Rajagopal v. State of Tamil Nadu AIR 1995 SC 264

[19] Sharda v. Dharmpal AIR 2003 SC 3450