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

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

Bio Medical Waste Management In Hospitals

BY:-Samridha Neupane
Vth Year
NALSAR University of Law,Hyderabad

 

INTRODUCTION

Hospital is a place of almighty, a place to serve the patient. Since beginning, the hospitals are known for the treatment of sick persons but we are unaware about the adverse effects of the garbage and filth generated by them on human body and environment. Now it is a well established fact that there are many adverse and harmful effects to the environment including human beings which are caused by the “Hospital waste” generated during the patient care. Hospital waste is a potential health hazard to the health care workers, public and flora and fauna of the area. Hospital acquired infection, transfusion transmitted diseases, rising incidence of Hepatitis B, and HIV, increasing land and water pollution lead to increasing possibility of catching many diseases. Air pollution due to emission of hazardous gases by incinerator such as Furan, Dioxin, Hydrochloric acid etc. have compelled the authorities to think seriously about hospital waste and the diseases transmitted through improper disposal of hospital waste. This problem has now become a serious threat for the public health and, ultimately, the Central Government had to intervene for enforcing proper handling and disposal of hospital waste and an act was passed in July 1996 and a bio-medical waste (handling and management) rule was introduced in 1998 .

A modern hospital is a complex, multidisciplinary system which consumes thousands of items for delivery of medical care and is a part of physical environment. All these products consumed in the hospital leave some unusable leftovers i.e. hospital waste. The last century witnessed the rapid mushrooming of hospital in the public and private sector, dictated by the needs of expanding population. The advent and acceptance of “disposable” has made the generation of hospital waste a significant factor in current scenario .

HISTORY OF HOSPITAL WASTE MANAGEMENT

GENERAL INTRODUCTION

Waste management is one of the important public health measures. If we go into the historical background, before discovery of bacteria as cause of disease, the principle focus of preventive medicine and public health has been on sanitation. The provision of potable water, disposal of odour from sewage and refuse were considered the important factors in causing epidemics. The invention of water closet by John Harrington (1561-1612) facilitated flushing away human waste and helped to keep some dwellings clean, but flow from those indoor privies ran into cesspools and ultimately into waterways and wells. In 1848, the description by Edwin Chadwick of the sanitary conditions and health of English workers however had a great impact on the upper class and the governing bodies. His standard for proper removal of sewage and the protection of water supply was a stimulus to the govt. of Britain as was Rudolph Virchow’s militant advocacy of public health measures in Germany. The great glories of Roman hygiene were the water supply and the sanitation system. In several areas of Europe, public health remains primarily the responsibility of the inhabitant (for example—street cleaning and drainage) but laws were created and inspectors were assigned for enforcement. ‘Scavengers’ were appointed to collect the garbage and space outside was assigned for dumping.

THE ORIGIN OF BIO-MEDICAL WASTE MANAGEMENT IN THE INDIAN SUB-CONTINENT

In the Indian Sub-continent, until Sir Mortimer Wheeler’s work at Harappa in 1946, nothing was known with certainty of the way in which this people dispose of their dead, but from a cemetery than discovered, containing at least 57 graves, each appears-the burial was a usual rite. The whole cemetery has not been excavated and the evidence is not yet fully assessed, but it is clear that the dead were buried in an extended posture with pottery and personal belongings. Coming back to modern age, in the 21st century with increased use of disposable material and the presence of dreaded disease like Hepatitis – B and AIDS, it is utmost important to take care of the infected and hazardous waste to save the mankind from disaste r. The Health care institution or hospitals which are responsible for care of morbid population are emitting voluminous quantity of rubbish, garbage and Bio Medical Waste matter each day from wards, operation theatre and outpatient areas. Proper management of hospital waste is essential to maintain hygiene, aesthetics, cleanliness and control of environmental pollution. The hospital waste like body parts, organs, tissues, blood and body fluids along with soiled linen, cotton, bandage and plaster casts from infected and contaminated areas are very essential to be properly collected, segregated, stored, transported, treated and disposed of in safe manner to prevent nosocomial or hospital acquired infection . Various communicable diseases, which spread through water, sweat, blood, body fluids and contaminated organs, are important to be prevented. The Bio Medical Waste scattered in and around the hospitals invites flies, insects, rodents, cats and dogs that are responsible for the spread of communication disease like plague and rabies. Rag pickers in the hospital, sorting out the garbage are at a risk of getting tetanus and HIV infections. The recycling of disposable syringes, needles, IV sets and other article like glass bottles without proper sterilization are responsible for Hepatitis, HIV, and other viral diseases. It becomes primary responsibility of Health administrators to manage hospital waste in most safe and eco-friendly manner.

With the proliferation of blood born diseases, more attention being focus on the issue of infectious medical waste and its disposal. Health care institutions must be aware of the potential risk in handling infectious waste, and adhere to the highest standard of transport & disposal. Education of the staff, patients and community about the management of the infectious waste is crucial in today’s health care arena .

LANDMARK DECISIONS TO STREAMLINE HOSPITAL WASTE MANAGEMENT

with increasing awareness in general population regarding hazards of hospital waste, public interest litigations were filed against erring officials. Some landmark decisions to streamline hospital waste management have been made in the recent past. These are:

1. Supreme Court judgment dated 1st March 1996 in connection with safe disposal of hospital waste ordered that

(a) All hospitals with 50 beds and above should install either their own incinerator or an

equally effective alternative method before 30th November 1996.

(b) The incinerator or the alternative method should be installed with a necessary pollution control mechanism conforming to the standard laid down by Central Pollution Control Board (CPCB).

(c) Hazardous medical waste should be segregated as source and disinfected before final

disposal.

2. Ministry of Environment & Forest, Govt. of India issued a notification for Biomedical Waste(Management & Handling) Rules 1998 in exercise of powers conferred by Section 6, 8 & 25 of the Environment (Protection) Act, 1986 that was published in The Gazette of India Extraordinary, Part-II, Section 3-Sub-Section (ii) New Delhi, July 27, 1998 .

3. The Delhi Pollution Control Committee has been designated as Prescribed Authority to

implement these rules in the National Capital Territory of Delhi. The Financial Commissioner has been designated as appellate authority in Delhi.

4. In exercise of the Powers conferred by Rule 9 of the Bio-Medical Waste (Management & Handling) Rules, 1998 the Lt. Governor of Delhi has constituted an Advisory Committee Vide No. F. 23 (322)/95/EN/99 to act such authority under the said Rules. The composition of the Advisory Committee has 10 members with Pr. Secretary (Health), Govt. of Delhi as Chairman and Director Health Services as Member Secretary / Convener. Under Chairmanship of Principal Secretary (Health & Family Welfare) this Committee meets from time to time to discuss and decide about various issues connected with these rules. It is primary responsibility of the government to implement the recommendations and directions of the Supreme Court and Biomedical Waste (Management & Handling) Rules 1998 in public interest, so that Bio-medical waste does not cause any harm to men, animal and environment .

BIO-MEDICAL WASTE MANAGEMENT IN HOSPITALS- AN OVERVIEW OF BIO-MEDICAL WASTE (MANAGEMENT AND HANDLING) RULES, 1998

WHAT IS HOSPITAL WASTE?

Hospital waste refers to all waste generated, discarded and not intended for further use in the hospital. It is broadly categorized into the following categories:

1. General Waste

2. Pathological Waste

3. Infectious Waste

4. Sharps

5. Pharmaceutical Waste

6. Chemical Waste

7. Radioactive Waste

AMOUNT AND COMPOSITION OF HOSPITAL WASTE GENERATED

(a) Amount

Country Quantity (kg/bed/day)

U. K. 2.5

U.S.A. 4.5

France 2.5

Spain 3.0

India 1.5

(b) Hazardous/non-hazardous

Hazardous 15%

a) Hazardous but non-infective 5%

b) Hazardous and infective 10%

Non-hazardous 85%

(c) Composition

By weight

Plastic 14%

Combustible

Dry cellublostic solid 45%

Wet cellublostic solid 18%

Non-combustible 20%

BIOMEDICAL WASTE

Any solid, fluid and liquid or liquid waste, including it’s container and any intermediate product, which is generated during the diagnosis, treatment or immunisation of human being or animals, in research pertaining thereto, or in the production or testing of biological and the animal waste from slaughter houses or any other similar establishment. All biomedical waste are hazardous. In hospital it comprises of 15% of total hospital waste .

RATIONALE OF HOSPITAL WASTE MANAGEMENT

Hospital waste management is a part of hospital hygiene and maintenance activities. In fact only 15% of hospital waste i.e. “Biomedical waste” is hazardous, not the complete. But when hazardous waste is not segregated at the source of generation and mixed with nonhazardous waste, then 100% waste becomes hazardous. The question then arises that what is the need or rationale for spending so much resources in terms of money, man power, material and machine for management of hospital waste? The reasons are:

1. Injuries from sharps leading to infection to a.ll categories of hospital personnel and waste handler.

2. nosocomial infections in patients from poor infection control practices and poor waste management.

3. Risk of infection outside hospital for waste handlers and scavengers and at time general public living in the vicinity of hospitals.

4. Risk associated with hazardous chemicals, drugs to persons handling wastes at all levels.

5. “Disposable” being repacked and sold by unscrupulous elements without even being washed.

6. Drugs which have been disposed of, being repacked and sold off to unsuspecting buyers.

7. Risk of air, water and soil pollution directly due to waste, or due to defective incineration emissions and ash.

APPROACH FOR HOSPITAL WASTE MANAGEMENT

Based on Bio-medical Waste (Management and Handling) Rules 1998, notified under the Environment Protection Act by the Ministry of Environment and Forest (Government of India) .

1. Segregation of waste

Segregation is the essence of waste management and should be done at the source of generation of Bio-medical waste e.g. all patient care activity areas, diagnostic services areas, operation theaters, labour rooms, treatment rooms etc. The responsibility of segregation should be with the generator of biomedical waste i.e. doctors, nurses, technicians etc. (medical and paramedical personnel). The biomedical waste should be segregated as per categories mentioned in the rules .(Annexure IV)

2. Collection of bio-medical waste

Collection of bio-medical waste should be done as per Bio-medical waste (Management and Handling) Rules. At ordinary room temperature the collected waste should not be stored for more than 24 hours.

3. Transportation

Within hospital, waste routes must be designated to avoid the passage of waste through patient care areas. Separate time should be earmarked for transportation of bio-medical waste to reduce chances of it’s mixing with general waste. Desiccated wheeled containers, trolleys or carts should be used to transport the waste/plastic bags to the site of storage/ treatment .

4. Treatment of hospital waste

4.1 General waste

The 85% of the waste generated in the hospital belongs to this category. The, safe disposal of this waste is the responsibility of the local authority.

4.2 bio-medical waste: 15% of hospital waste

1. Deep burial

2. Autoclave and microwave treatment (Annexure II)

3. Shredding (Annexure II)

4. Secured landfill

5. Incineration (Annexure III)

5. Safety measures

5.1 All the generators of bio–medical waste should adopt universal precautions and appropriate safety measures while doing therapeutic and diagnostic activities and also while handling the bio-medical waste.

5.2 It should be ensured that:

1. Drivers, collectors and other handlers are aware of the nature and risk of the waste.

2. Written instructions, provided regarding the procedures to be adopted in the event of spillage/ accidents.

3. Protective gears provided and instructions regarding their use are given.

4. workers are protected by vaccination against tetanus and hepatitis B

6. Training

1. Each and every hospital must have well planned awareness and training programme for all category of personnel including administrators (medical, paramedical and administrative).

2. All the medical professionals must be made aware of Bio-medical Waste (Management and Handling) Rules 1998.

3. To institute awards for safe hospital waste management and universal precaution practices.

4. Training should be conducted to all categories of staff in appropriate language/medium and in an acceptable manner.

7. Management and administration

Heads of each hospital will have to take authorization for generation of waste from appropriate authorities as notified by the concerned State/U.T. Government, well in time and to get it renewed as per time schedule laid down in the rules. Each hospital should constitute a hospital waste management committee, chaired by the head of the Institute and having wide representation from all major departments. This committee should be responsible for making Hospital specific action plan for hospital waste management and its supervision, monitoring and implementation. The annual reports, accident reports, as required under BMW rules should be submitted to the concerned authorities as per BMW rules format .

8. Measures for waste minimization

As far as possible, purchase of reusable items made of glass and metal should be encouraged. Select non PVC plastic items. Adopt procedures and policies for proper management of waste generated, the mainstay of which is segregation to reduce the quantity of waste to be treated. Establish effective and sound recycling policy for plastic recycling and get in touch with authorised manufactures.

BIO-MEDICAL/HOSPITAL WASTE MANAGEMENT SCENARIO IN DELHI

THE ORGANIZATION-WISE INSTITUTIONS 

There is a big network of Health Care Institutions in Delhi. Although, these are not under one banner but these can be utilized by better coordination among different organizations.

These Health Care Institutions are inclusive of Allopathy, ISM and Homeopathy. The large chunk of hospitals and dispensaries are under Delhi Government, Municipal Corporation of Delhi, New Delhi Municipal Council, Employees State Insurance Corporation and Central Government Health Scheme. Equally important is the private sector comprising of major hospitals, nursing homes, clinics, blood banks, diagnostic laboratories, and Unani, homeopathy and Sidda Dava-khanas. At present there are 504 registered nursing homes registered under this directorate in Delhi. Bed-wise Distribution these Nursing homes is as follows 

CENTRALISED TREATMENT FACILITY-STEPS TAKEN BY THE GOVERNMENT TO SOLVE THE PROBLEM

Keeping in view the difficulties faced by private hospitals/nursing homes in treatment of biomedical waste, the Govt. of NCT of Delhi has allowed these units to avail the facility through India Waste Energy Development ltd. at DDU hospital, LBS hospital, GTB hospital and BJRM hospital. Currently IWEDL is operating the facilities at DDU hospital only. This is an interim arrangement and government is planning for centralized facility.

The smaller Nursing Homes and Clinics, which cannot make their own arrangements due to high cost involved in waste treatment facilities, require some alternative modalities. To solve the problems of Nursing Homes/Clinics/Blood Banks/Diagnostic Laboratories etc., Government is taking initiatives to establish centralized waste treatment facilities. The Government of NCT of Delhi (GNCTD) has purchased land from Delhi Development Authority (DDA) for establishment of Centralized Biomedical Waste treatment facilities 1000 sq. meter each at Okhla and Gazipur in Delhi. The tenders for centralized facility at Okhla have already been finalised . 

THE BED STRENGTH IN DELHI GOVT. HOSPITALS

The Government of NCT of Delhi has planned to utilize the above two sites for establishing Centralized Bio-Medical Waste Treatment facilities as a joint venture with the private sector/NGO etc. to be identified and selected through a transparent process. For this venture, Government of NCT of Delhi shall only provide infrastructural support to the selected party/agency in terms of transfer of the above sites on such terms and conditions as shall be approved by the Delhi Development Authority. Neither any additional capital expenditure for the establishment of the facility nor any recurring revenue expenditure for operation and maintenance of the facility will be forthcoming from the GNCTD. Given the above conditions, the party for the joint venture shall be selected who is able to offer the services to the Hospitals/Nursing Homes/Clinics etc. at the most reasonable rates conforming to all the required statutory conditions. There are 26 Hospitals under Government of Delhi, out of which 11 are under DHS. Six hospitals are having Incinerators and 9 hospitals are having Autoclaves and Shredders for Scientific Management of Bio-Medical Waste. Bio-Medical Waste from the Hospitals, where such facilities are not available are segregated and transported in special van to Hospitals where such facilities exist. Under Biomedical Waste (Management & Handling) Rules 1998, all health care institutions are required to handle biomedical waste in a specified manner. Delhi is generating approximately 6000 metric tons of waste out of which 60 tons are Biomedical Waste. The Government hospitals and major private hospitals have their own arrangement for treatment of biomedical waste. Total no of beds in hospitals under Government of NCT of Delhi are 5641 . 

BIOMEDICAL WASTE GENERATED IN DELHI GOVERNMENT HOSPITALS

All the 26 Delhi Govt. hospitals and 167 Dispensaries under this Directorate have obtained authorization from DPCC under Bio-medical Waste (Management & Handling) Rules 1998.

The govt. of national capital territory of Delhi had made adequate arrangements for meeting any contingencies arising out of the handling, treatment and disposal of bio medical waste much before any other government any where. Funds were made available to the hospitals to procure incinerators, and state of the art autoclaves and shredders were imported so that the prescribed methods of medical waste treatment under the law could be met. The vacuum type of autoclaves procured by Delhi govt. are the best available anywhere. These are ideal to disinfect plastic, PVC and other categories of medical waste. Adequate funds have always been provided to all hospitals for purchasing accessories such as bags, trolleys and the disinfectants. So there should be no excuse for not properly disposing bio medical waste .

Delhi govt. had signed a MOU with the Government of Australia in 1998 to have experts visiting from that country and advising and assisting our hospitals to learn and understand a variety of issues related to bio medical waste management. This collaborative programme resulted in developing training modules, which have been made available to all.

Total Treatment 8.5 MT/D

INITIATIVES TAKEN FOR EFFECTIVE MANAGEMENT OF BIO-MEDICAL WASTE

• Twice a year inspections are conducted in the 100 bedded or more, hospitals which contribute about 70% of the total waste generated.

• Air and effluent quality analysis in these major hospitals is done by IIT, Delhi.

• Authorisation has been granted to 1365 healthcare establishments.

• 6800 health care professionals have been trained.

• Efforts are being made to ensure that no medical unit in Delhi escapes the responsibilities enjoined upon them for proper storage, treatment and disposal of bio-medical waste generated by it.

SERIOUS ISSUES OBSERVED AS A GENERAL TREND IN THE DELHI HOSPITALS

(1) The segregation of waste in almost all hospitals is not satisfactory.

(2) Colour coding for various categories of waste is not followed.

(3) The storage of BMW is not in isolated area and proper hygiene is not maintained.

(4) Personal protective equipment and accessories are not provided.

(5) Most of the hospitals do not have proper waste treatment and disposal facilities. In the cities where common treatment facilities have come up, many medical establishments are yet to join the common facility.

(6) Emission monitoring of five incinerators indicated that they do not meet the emission norms.

(7) Most of the incinerators are not properly operated and maintained, resulting in poor performance.

(8) Sometimes plastics are also incinerated leading to possible emission of harmful gases.

(9) Several hospitals have not applied to State Pollution Control Board for authorisation under the rules.

(10) General awareness among the hospital staff regarding BMW is lacking.

ANALYSIS

Judicious reuse of materials contributes towards better infection control, reduces disposables and also reduces the cost. Safe handling of BMW continues to be a matter of serious concern for health authorities in India. Thousands of tonnes of BMW originating from hospitals, nursing homes and clinics in the form of cotton swabs and bandages infected with blood, needles, catheters, human tissues and body parts, etc continue to be dumped in open garbage bins on the roads in most parts of the country. With apparently no machinery for granting permission to new nursing homes in any of the states, the generation of these dangerous wastes is only expected to increase in the days to come . Barring a few large private hospitals in metros, none of the other smaller hospitals and nursing homes has any effective system to safely dispose of their wastes. The attitude of the government and municipal hospitals is no better than these private hospitals and nursing homes. Such irresponsible dumping of these dangerous wastes in open bins has been promoting unauthorised reuse of medical waste by the rag pickers for some years now.

After a spate of Public Interest litigations, bio medical waste (management and handling) rules were formulated and notified in July 1998. These were enforced in phased manner and are now applicable throughout the country. In Delhi these became applicable on 1st July 2000. It is guesstimated that out of about 6000-7000 tons of solid waste generated in Delhi, about 1% is medical waste. This makes the amount of medical waste generated 60-70 metric tons/day. If proper segregation is done by healthcare personnel which the rules prescribe, then the bio medical waste generation in Delhi should not be more than 20-25 metric tons/day or even less. This amounts to great savings in financial terms.

CONCLUSION AND SUGGESTIONS TO COMBAT BIO-MEDICAL WASTE IN HOSPITALS

The hospitals and bio medical facilities meant to ensure better health have unfortunately become a potential health risk due to mismanagement of the infectious waste. BMW from hospitals, nursing home and other health centers composed of variety of wastes like hypodermic needles, scalpels blades, surgical cottons, gloves bandages, clothes, discarded medicine, blood and body fluids, human tissues and organs, radio-active substances and chemicals etc. This area of waste management is grossly neglected.

The researcher, therefore, states that there needs to be requisite emphasis on the following which could be done through a program that includes:

1. Updated Guidelines for the segregation, management and disposal of infectious or potentially infectious biomedical waste.

2. Reduce the incidence of health care worker and the public from contacting a disease or injury from biomedical waste.

3. Provide guidance to the health care system on the opportunities for waste minimization and the reduction of air contamination from incineration of biomedical waste.

4. Strategies and appropriate handling techniques for bio-medical waste management

5. Create awareness about Hospital accreditation with focus on guidelines related to healthcare safety issues related with disposal of Bio-Medical Waste.

6. Understand the new technologies available for Safe disposal of Bio medical Waste from Environment friendliness point of view & infection control in hospitals

7. Economic issue involved in Management of Bio-Medical Waste & Role of Public-Private Partnership

Also, it should be made mandatory for the following to be a part of the above mentioned programme in order to increase the awareness among them so as to ensure better treatment of the bio-medical waste in the hospitals:

1. Medical Superintendents/ Hospital Administrators

2. Doctors running their own healthcare facility

3. Hospital Laboratory Services Providers.

4. Hospital Administrators

5. Senior Nurses and paramedical staff

6. Allied Health Professionals

7. Consultants

8. Healthcare Waste Management related industry Owners

9. Quality Managers

10. Hospital House Keeping Officers

HONOUR KILLING : A CURSE TO HUMAN DIGNITY

BY :-BINEETA MITRA (5th semester) 3rd year

GENESIS

“Honour killing” is an age old social evil whose frequency has escalated in the recent past. Khap Panchayats, which are a system of social administration in rural areas since ancient times, are being blamed for these long series of killings. While these Panchayats  (assembly) had some role in setting the community disputes, these exclusively male bodies, dominated by village eliteS have been asserting the values of past, gone by era and stand in the way of the values of Indian Constitution, the values of  Liberty, Equality and Fraternity.

PREFACE

An honor killing or honour killing (also called a customary killing) is the murder of a (female) family or clan member by one or more fellow (mostly male) family members, where the murderers (and potentially the wider community) believe the victim to have brought dishonour upon the family, clan, or community. This perceived dishonor is normally the result of (a) utilizing dress codes unacceptable to the family (b) wanting out of an arranged marriage or choosing to marry by own choice, (c) engaging in certain sexual acts or (d) engaging in relations with the same sex. These killings result from the perception that defense of honor justifies killing a person whose behavior dishonors their clan or family. These crimes are prevalent in orthodox, regional and socially backward groups in many countries across the world, mainly of muslim origin.

GLOBAL  PLIGHT.

 In Pakistan honor killings are known locally as karo-kari. Amnesty International’s report noted “the failure of the authorities to prevent these killings by investigating and punishing the perpetrators.”Recent cases include that of three teenage girls who were buried alive after refusing arranged marriages. Another case was that of Taslim Khatoon Solangi, 17, of Hajna Shah village in Khairpur district, which became widely reported after the graphic account of her father, 57-year-old Gul Sher Solangi, who allegedly tortured and murdered his eight months’ pregnant daughter on March 7 on the orders of her father-in-law, who accused her of carrying a child conceived out of wedlock. Statistically, honor killings enjoy high level of support in Pakistani society, despite widespread condemnation from human rights groups. In 2002 alone, over 382 people, about 245 women and 137 men, became victims of honor killings in the Sindh province of Pakistan. Over the course of six years, over 4,000 women have fallen victim to this practice in Pakistan from 19992004. More recently (in 2005), the average annual number of honor killings for the whole nation ran up to more than 10,000 per year.   “Frequently, women murdered in “honour” killings are recorded as having committed suicide or died in accidents.

Every year in the UK, a dozen women are victims of honor killings, occurring almost exclusively to date within Asian and Middle Eastern families, and often cases are unresolved due to the unwillingness of family, relatives and communities to testify. A 2006 BBC poll for the network in the UK found that 1 in 10 of the 500 young Asians polled said that they could condone the murder of someone who dishonored their family. In the UK, in December 2005, Nazir Afzal, Director, West London, of Britain’s Crown Prosecution Service, stated that the United Kingdom has seen “at least a dozen honour killings” between 2004 and 2005.

Jordan, considered one of the most liberal countries in the Middle East still witnesses instances of honor killings. In Jordan there is minimal gender discrimination and women are permitted to vote, but men receive reduced sentences for killing their wives or female family members if they have brought dishonor to their family. Families often have sons who are considered minors, under the age of 18, to commit the honor killings. A loophole in the juvenile law allows minors to serve time in a juvenile detention center and they are released with a clean criminal record at the age of 18. Rana Husseini, a leading journalist on the topic of honor killings, states that “under the existing law, people found guilty of committing honor killings often receive sentences as light as six months in prison”. There has been much outcry in Jordan for the amendments of Article 340 and 98. In 1999, King Abdullah created a council to review the gender inequalities in the country. The Council returned with a recommendation to repeal Article 340.

An article in the Spring 2009 edition of Middle East Quarterly argues that the United States is far behind Europe in acknowledging that honor killings are a special form of domestic violence, requiring special training and special programs to protect the young women and girls most likely to be the victim of such. The article suggests that the fear of being labeled “culturally insensitive” prevents US government officials and the media from both identifying and accurately reporting these incidents as “honor killings” when they occur. Failing to accurately describe the problem makes it more difficult to develop public policies to address it.

SCENARY IN INDIA

People are sometimes murdered in Northern India (mainly in the Indian state of Punjab, Rajasthan, Haryana and Bihar for marrying without their family’s acceptance, in some cases for marrying outside their caste (Jat or Rajput) or religion. Among Rajputs, marriages with other caste male/female instigates killings of the married couple and family. This is unique form  honor killing related to the militant culture of ethnic Rajputs, who, despite the forces of modernization and the pressures of decolonization, subscribe to medieval views concerning the “preservation” of perceived “purity” of their lineage.

In Punjab also there are many honor killing incidents. In Haryana, for example, a couple of such incidents still occur every year Bhagalpur in the northern Indian state of Bihar has also been notorious for honor killings. Recent cases include a 16-year-old girl, Imrana, from Bhojpur who was set on fire inside her house in a case of what the police called ‘moral vigilantism’. The victim had screamed for help for about 20 minutes before neighbours arrived, only to find her still smoldering. She was admitted to a local hospital, where she later succumbed to her injuries. In another case in May 2008, Jayvirsingh Bhadodiya shot his daughter Vandana Bhadodiya and struck her in the head with an axe. In june 2010 some incidents were reported even from Delhi.

In a landmark judgment, in March 2010, Karnal district court ordered the execution of the five perpetrators in an honour killing case, while giving a life sentence to the khap (local caste-based council) head who ordered the killings of Manoj Banwala (23) and Babli (19), two members of the same clan who eloped and married in June 2007. Despite being given police protection on court orders, they were kidnapped; their mutilated bodies were found a week later from an irrigation canal.Honor killings are rare to non-existent in South India, and the western Indian states of Maharashtra and Gujarat. There have been no honor killings in West Bengal in over 100 years, thanks to the influence and activism of reformists like Vivekananda, Ramakrishna, Vidyasagar and Raja Ram Mohan Roy .

In Haryana, JUNE 2010, a couple in their 20s were found dead in the woman’s home in Bhiwani District. The bodies bore injury marks, indicating the victims were beaten mercilessly. The police have arrested six member of the woman’s family, including her parents, on the charge of murder. The family apparently disapproved of the relationship because the man was from a different caste.

In Delhi, JUNE 2010, A 19-year-old girl and her boyfriend were tortured  for hours before being killed by electrocution in Delhi. The girl’s father and uncle have been arrested and have allegedly confessed they killed the couple because the boy, a taxi driver, was not a suitable match for the girl.  

VIOLATION OF HUMAN RIGHT

Honor crimes are acts of violence, usually murder, committed by male family members against female family members, who are held to have brought dishonor upon the family. A woman can be targeted by (individuals within) her family for a variety of reasons, including: refusing to enter into an arranged marriage, being the victim of a sexual assault, seeking a divorce — even from an abusive husband — or (allegedly) committing adultery. The mere perception that a woman has behaved in a way that “dishonors” her family is sufficient to trigger an attack on her life.

As the “Honour Killings” include torture, mutilation, rape, forced marriage, imprisonment within the home and even murder and these  crimes are intended to protect the family honour by preventing and punishing woman for allegedly violating community norms of behaviour, particularly sexual behaviour and thus  violating the HUMAN RIGHT.

RECENT SCENARIO IN INDIA

 In the recent times the cases has been on the increase and in current scenario when the State has remained mute spectators there is a lot of fear spread among the young generation and couples who are married and some of them intending to get married that they may face the wrath of such feudal forces. Many a times the pressures are so intense that the couples resort to suicide. In the recent months cases have come to light where couples are being killed, publicly humiliated and declared as brothers and sisters. Couples have faced social ostracisation from the society. Many have been killed in cold murder after torture.

 PREVENTION

1. New Law on Honour Killings as already announced by the Government  to be enacted.

2. States to  take all necessary precautionary measures to curve  Honour Killings and take proactive steps to prevent such killings.

3. The Central and the State Government need to come out with a paper on what steps they have taken to implement the Supreme Court Directions in 2006 in Lata Singh Vs State of Uttar Pradesh.

4. Come out with various help lines numbers and special cell where such couples can approach the administration for protection.

5. Constitute fast track courts for cases of Honour Killings.

6. AMENDMENT OF the Special Marriage Act and reduce the period of registration of Marriage from one month to one week.

PROPOSED  ENACTMENT OF NEW LAW

The proposed ordinance is expected soon so that spate of recent cases could come under the ordinance. A top government official said law minister M Veerappa Moily and home minister P Chidambaram have been working in tandem to strengthen Section 302 of the IPC, which deals with punishment for murder. Attorney general Goolam E Vahanvati has suggested a speedy amendment in the law.In his opinion, Vahanvati has said bodies like khap (caste) panchayats can be brought under the ambit of the crime as they are accused in many instances of ordering killings in the name of protecting the “honour” of the community. The law minister wants a new section in the IPC to define such crimes. The ordinance would also amend the Evidence Act to put the onus of proof on the accused. The Supreme Court had recommended amending the Evidence Act so that caste-provoked killings can be dealt with sternly. Among the suggested changes is holding caste panchayats guilty of any “honour” crime, and holding all members of such bodies as deemed guilty, whether or not they favoured the killing.

The new law would also cover torture, social boycott of the couple and discrimination. Such killings would be defined as “where men and women are killed by their kin or members of their caste for defying traditions”. It would be a separate crime under the IPC and those found guilty could be punished with death or life imprisonment. An ordinance has to be approved by parliament within six months of its promulgation, or it lapses.

 Union law minister Veerappa Moily said the government was planning to bring a bill in Parliament next session to provide for deterrent punishment for honour killings. The bill adds five clauses to Section 300 of the Indian Penal Code, making honour killings a “distinct offence”. Such killings now bring charges of murder (Section 302), criminal conspiracy (Section 120 A& B) and killing with common intent (Section 34 and 36). Honour killing cases would be tried by fast track courts to provide speedy justice to the victims.

CONCLUSION

It remains to be seen as to how effectively the legislature and the judiciary are able to resolve this conflicting issue between traditional beliefs and transition to modernity.

Indian Perspective of Right to Health

     BY:-Ms. Deepika Sood                                                       

                                                                                      India has been independent for 63 years but India has yet to provide its citizens the basic amenities like food security, health care, housing and good environment which are the basic amenities for a reasonable human existence. A highly inequitable health system has denied quality health care to all those who cannot afford it. Although the Directive Principles are asserted to be “fundamental in the governance of the country,” they are not legally enforceable. They are guidelines for creating a social order characterized by social, economic, and political justice, liberty, equality, and fraternity as enunciated in the Constitution’s Preamble. Both the Centre and the State have powers to legislate in the matter of social security and social insurance, medical profession and prevention of the extension from one State to another of infections or contagious diseases or pests affecting man, animals or plants1.

The obligation on the State to ensure the creation and the sustaining of conditions congenial to good health is cast by the Constitutional directives contained in Articles 39(e) (f), 42 and 47 in Part IV of the Constitution of India. Securing the health and strength of workers including  men , women and the tender age  children  by ensuring that the right of individuals  are not abused and that citizens are not forced by economic necessity to enter vocations unsuited to their age or strength (Article 39(e)) .The  opportunities  and facilities are maintained in a  healthy manner and in conditions  wherein the  freedom and dignity and individual(s)  are protected against exploitation , moral and material abandonment. (Article 39(f)). Right to a healthy environment safeguards human life itself under two aspects, namely, the physical existence and health of human beings and the dignity of that existence, the quality of life that renders it worth living2. The State is required to make provisions for just and humane conditions of work and for maternity benefit (Article 42).

The State should ensure the raising of the level of nutrition and standard of living of its people by improving the public health of its citizen’s. Protection of health of citizens and improvement in their healthy existence is an enshrined cardinal duty of the State 3. The State legislature is under Entry 6 of the State List contained in the Seventh Schedule to the Constitution, empowered to make laws with respect to Public Health and sanitation, hospitals and dispensaries. Article 21 embarks on the State the duty to safeguard the Right to Life of every person, preservation of human life being of paramount importance.

The Constitution (Forty Second Amendment) Act 1976 explicitly incorporated environmental protection and improvement as part of State policy through the insertion of Article 48A.   Article 51A (g) imposed a similar responsibility on every citizen “to protect and improve the natural environment including forests, lakes, rivers, and wildlife and to have compassion for all living creatures.”In addition to the Constitution, there are five main instruments in the Indian legal system that deal with regulation of health care and safeguarding individuals against medical negligence. These are: Law of Torts; Consumer Protection Act, 1986; Indian Penal Code,1860; Indian Medical Council Act, 1956; Indian Contract Act, 1872.

________________________________________________________________

@Amity Law School, AUUP-Noida

1.  Entries 23, 26 and 29 respectively contained in the Concurrent list of the Seventh Schedule.  

2. See Ministerial Conference on Pollution and Climatic Change. The Noordwijk Declaration on

   Climate Change, 4 (Nov. 1989)

3. Article 48 A       

Various Municipal laws prescribe duties of such local authorities in the sphere of public health and sanitation which include establishment and maintenance of dispensaries, public vaccination, providing special medical aid and accommodation for the sick in the time of dangerous diseases, taking measures to prevent the outbreak of diseases etc. The   State may endow the Municipalities with such powers and authorities which may be necessary to enable them to function as institutions of self government (Article 242 of the Constitution). State has  provided with respect to the performance of functions and implementation of schemes as may be entrusted to them including those in relation to the matters listed in the Twelfth Schedule to the Constitution which is  included at item 6, ‘Public  Health sanitation conservancy and solid waste management’. Similar provision is made for the Panchayats under Article 243-G read with the Eleventh Schedule (item 23), of the Constitution. There is, however, a significant difference between local government authorities and the State health authorities, the latter having enormous powers to make available financial resources and make key appointments. Healthy alliances between the two types of authorities are crucial, if health is to be effectively promoted. 

The citizens can approach the High Court under Article 226 of the Constitution for seeking a Mandamus to get the duties enforced whenever there is failure of these statutory obligations of the local authorities. A wide dimension of the Right to Life and the right to a healthy environment entails the consequent wider characterization of attempts or threats against those rights, what in turn calls for a higher degree of their protection. The importance of health promotion at the work place is increasingly recognized particularly in large organizations. Health promotion of workmen   reduces absenteeism thereby leading to gain in the productivity. In Consumer Education and Resource Centre Vs Union of India4 it was held that the Right to Health is essential for human existence and is, therefore an integral part of the Right to Life. Fundamental Right under Article 21 read with Articles 39(c), 41 and 43 of the Constitution and makes the life of the workman meaningful and purposeful with dignity of person. Right to life includes protection of the health and strength of the worker and is a minimum requirement to enable a person to live with human dignity. Similarly in Bandhua Mukti Morcha Vs Union of India5, the Supreme Court has held that the Right to Life includes the right to live with dignity. The Supreme Court held that the right to health includes the health care and right to determinants of health such as food security, water supply, housing and sanitation etc. It reflected the importance of health as a prerequisite for Right to Life whereby it can be inferred that Right to Health is an important human right and its denial can be detrimental to the existence of human life. The Apex court held in Paschim Baga Khet Mazoor Samiti Vs State of West Bengal6 that that Article 21 imposes an obligation on the State to safeguard the right to life of every person therefore failure on the part of a government hospital to provide timely medical treatment to a person in need of such treatment results in violation of his Right to Life guaranteed under Article 21. Further, the Court ordered that Primary health care centers be equipped to deal with medical emergencies.  It has also been held in this judgment that the lack of financial resources cannot be a reason for the State to shy away from its constitutional obligation.

Medical practitioners do not enjoy any immunity from an action in tort, and they can be sued on the ground that they have failed to exercise reasonable skill and care. The Supreme Court has held that medical practitioners are governed by the Indian Medical Council Act and are subject to the disciplinary control of the Medical Councils. Service rendered to a patient by a medical practitioner (except where the doctor renders service free of charge to every patient or under a

  1. AIR 1955 SC 636
  2. AIR 1984 SC 802
  3. AIR 1996 SC 426

Contract of personal service), by way of consultation, diagnosis and treatment, both medical and surgical, was held to fall in the case of within the ambit of ‘Service’ as defined in Section 2(1) (O) of the Consumer Protection Act, 1986.In Parmanand Katara v. Union of India7, the Supreme Court said that whether the patient was innocent or a criminal, it is an obligation of those in charge of community health to preserve the life of the patient. Every doctor has a professional obligation to extend his services with due expertise and care for protecting life. The Right to Health is integral to Right to Life as held in State of Punjab and Others Vs Mohinder Singh8. Government has a constitutional obligation to provide health facilities. In Mahendra Pratap Singh Vs State of Orissa9, a case pertaining to the failure of the government in opening a primary   health care centre in a village, the court had held that the government is required to assist people get treatment and lead a healthy life. Primary concern should be the primary health centre and technical fetters cannot be introduced as subterfuges to cause hindrances in the establishment of health centre. It also stated that, great achievements and accomplishments in life are possible if one is permitted to lead an acceptably healthy life.  Thereby, there is an implication that the enforcing of the right to life is a duty of the state and that this duty covers the providing of right to primary health care implying that the right to life includes the right to primary health care.

The Right to Life has been given a wider perceptive to include environment pollution affecting health of the citizens in the land mark  case of M.C Mehta Vs Union of India10 the Supreme Court has held that environmental pollution causes several health hazards, and therefore violates Right to Life. Specifically, the case dealt with the pollution discharged by industries into the Ganges. It was held that victims, affected by the pollution caused, were liable to be compensated. Similarly, in Subhash Kumar Vs State of Bihar11,  the Court observed that ‘right to life guaranteed by Article 21 includes the right of enjoyment of pollution-free water and air for full enjoyment of life.’ Through this case, the Court recognised the right to a wholesome environment as part of the fundamental Right to Life. This case also indicated that the municipalities and a large number of other concerned governmental agencies could no longer rest content with unimplemented measures for the abatement and prevention of pollution. They may be compelled to take positive measures to improve the environment. The Supreme Court has used the right to life as a basis for emphasizing the need to take drastic steps to combat air and water pollution.12 It has directed the closure or relocation of industries and ordered that evacuated land be used for the needs of the community.13The first health related Public Interest Litigation was  filed in the Supreme Court   in  the Workmen of State Pencil Manufacturing Industries of Madhya Pradesh Case 14 concerning the death of workers at young age in the slate pencil manufacturing industries, due to the accumulation of soot in their lungs. The Court required the State to ensure installation of safety measures in the concerned factories, failing that it could close down the industries.

7. 1989(4)  SCC  286

8. AIR 1997 SC 1225

9. AIR 1997 Ori 37

10. AIR 1987 SC 1086

11. AIR 1991 SC 420     

12 V. Mathur v. Union of India, (1996) 1 SCC 119

13 M.C. Mehta v. Union of India, (1996) 4 SCC 351

14. CWP No. 5143 of 1980

In a Public Interest Litigation serious deficiencies and shortcomings in the matter of collection, storage and supply of blood through various blood centers were highlighted before the Supreme Court and directions were sought on the Union of India and State to take steps for obviating the malpractices, malfunctioning and inadequacies of the blood banks. 15 The issue of the working of commercial blood banks while recognizing that blood donation is considered as a great life saving service to humanity the court enforces a duty on the blood banks to ensure that the blood that is available with the blood banks for use is healthy and free from infection. The Supreme Court in this case laid down a system of licensing of blood banks.  It may be inferred from the above reasoning that the State is entrusted with the responsibility in matters of health, to ensure efficient functioning all centers relating to health care.

In M.C. Mehta Vs Kamal Nath and Others,16the court added that ‘[it] would be equally appropriate in controversies involving air pollution, the dissemination of pesticides, the location of rights of ways for utilities, and strip mining of wetland filling on private lands in a state where governmental permits are required.’ In both M.I. Builders Pvt. Ltd17  and Th. Majra Singh, 18 the court reconfirmed that the public trust doctrine ‘has grown from Article 21 of the Constitution and has become part of the Indian legal thought process for quite a long time.’

In Sheela Barse Vs Union of India and Another 19 a case pertaining to the admitting of non-criminal mentally ill persons to prisons in West Bengal, the Supreme Court has held that “(1) Admission of non-criminal mentally ill persons to jails is illegal and unconstitutional…. The Judicial Magistrate will, upon a mentally ill person being produced, have him or her examined by a Mental Health Professional/Psychiatrist and if advised by such MHP/Psychiatrist sends the mentally ill person to the nearest place of treatment and care.” It has further directed the state to improve mental health institutions and integrate mental health into primary health care, among others.

More recently the Supreme Court has addressed the epidemic of HIV/ AIDS. In a case where the court had to decide whether an HIV positive man should disclose his condition to the woman he was to marry, the court has held that “the woman’s right to good health to precedence over the man’s right to privacy” 20 There is sufficient case law on the issue of health in State run institutions such as remand homes for children and “care homes”.

With the onward march of science and complexities of living processes, hitherto unknown diseases are notified. New and emerging diseases, combined with the rapid spread of pathogens resistant to antibiotics and of disease carrying insects resistant to insecticides, are daunting challenges to human health. The gap between the ability of microbes to mutate into drug-resistant strains and man’s ability to counter them is widening fast. To meet the new challenges new drugs have to be found. The Central Government is by Section 26A of the Drugs and Cosmetics Act,  

15 AIR 1996 SC 83

16(1997) 1 SCC 388

17 M.I. Builders Pvt. Ltd v. Radhey Shyam Sahu AIR 1999 SC 2468

18 Th. Majra Singh v. Indian Oil Corporation AIR 1999 J&K 81

19 1993(3) SCALE 417

20 AIR 1999 SC 495

 1940 empowered to prohibit in public interest, manufacture, sale or distribution of any drug which is likely to involve any risk to human beings or animals or if does not have the therapeutic value claimed21.

The Supreme court in M.C. Mehta Vs Union Of India 22 held that there are dicta that life, public health and ecology have priority over unemployment and loss of revenue. The “precautionary principle” requires the State to anticipate, prevent and attack the causes of environment degradation 23. Right to pollution free air falls within Article 21 24, thereby there is no reason to compel a non-smokers to be helpless victims of air pollution25. Right to enjoyment of pollution free water26.

In Citizens and Inhabitants of Municipal Ward Vs Municipal Corporation, Gwalior the court deliberated on the question- Is the State machinery bound to assure adequate conditions necessary for health? The case involved the maintaining of sanitation and drainage facilities by municipal corporations. It was held that the State and its machineries (in the instant case, the Municipal Corporation) are bound to assure hygienic conditions of living and therefore, health. The Karnataka High Court has deliberated on the right of an individual to have access to drinking water.

 In Puttappa Honnappa Talavar v. Deputy Commissioner, Dharwad27, the High Court has held that the right to dig bore wells therefore can be restricted or regulated only by an Act of legislature and that the right to life includes the right to have access to clean drinking water. The High Court of Rajasthan has held that stray animals in urban areas pose a danger to people and also cause nuisance to the public. 28

The question before the Court was, does the negligence of restraining the number of these animals violate Art 21 of the public at large? The Court found that stray animals on the road interfere with transportation, polluted the city and therefore posed a health risk to people.  It was held that public nuisance caused by these stray animals was a violation of Art. 21, of the public at large. Thus, in light of above cases a wide dimension of the Right to Life embedding the right to a healthy environment. An example of the threats is provided by, e.g., the effects of global warming on human health: skin cancer, retinal eye damage, cataracts and eventual blindness, neurological damage, lowered resistance to infection, alteration of the immunological system (through damaged immune cells); in sum, depletion of the ozone layer may result in substantial injury to human health as well as to the environment (harm to terrestrial plants, destruction of the zooplankton, a key link in the food chain), thus disclosing the needed convergence of human health protection and environmental protection. 29

The right to health is an individual right imbedded in the Right to Life which requires the protection of the physical and mental integrity and dignity of the individual; and it is also a social right in that it imposes on the State and society the collective responsibility for the protection of the health of the citizens and the prevention and treatment of diseases. 30

____________________________________________________________________________________________________________________________________

21 Vicent Parikulangara Vs Union of India, AIR 1987 SC 1990

22.  AIR 1987 SC 1086

23. M.C. Mehta Vs Union of India (1997) 3 SCC 715

24. Subhash Vs State of Bihar, AIR 1991 SC 420

25. Murli S.Deora Vs Union of India AIR 2002 SC 40

26. B.L Wadhera Vs Union of India AIR 1996 SC 2969

27. AIR 1998 Kar 10

28. Sanjay Phophaliya Vs State of Rajasthan, AIR 1998 Raj 96

29. Ct. A.A. Cançado Trindade, “Co-existence and Co-ordination of Mechanisms of International

       Protection of Human Rights (At Global and Regional Levels),” 202 Recueil des cours de l’Académie   

      de droit international, 21-435 (1987) at 98-100.

30.  R. Roemer, “El Derecho a la Atención de la Salud,” in OMS, El Derecho a la Salud en ids Americas

        16     (H. L. Fuenzalida-Puelma and S.S. Connor, eds., OPAS, publ. no 509).  

 Conclusion

From the above discussion of cases it is evident that the Judiciary has held that Article 21, Right to Life embeds in it the Right to Health also .An effective system of people’s monitoring of public health services if organized at the village, block and district levels with powers conferred in Panchayati Raj system would involve community in health services whereby significantly increasing the accountability of these services. The citizens have a right to quality health care, treatment and medication regardless of race, religion, social status and ability to pay. The duties of the State and Municipal authorities can be enforced through the Courts whenever a breach occurs. It is in the enforcement of these obligations of the State and local authorities that the Courts can play an effective role in safeguarding the right to health of the citizens.

Torture is a Crime : Issue and Perspective

 

Introduction

 The practice of torture is endemic in India. It is believed that torture, in its cognate and express forms, is practised in every police station in the country. Torture in police custody involves a range of practices including position abuse, shackling, beating with canes, batons, iron rods and rubber pipes, the pouring of water to disrupt sleep, the administration of electric shocks to the body . Torture being a crime committed by the State agencies, it has remained and will remain a subject of intense discussion and condemnation, internationally  and thus  torture is to be considered as a crime against humanity.

 In India all the State agencies have tortured persons for various purposes unrelated to law enforcement or crime investigation, including  silencing of opposition, irrespective of its nature. The practice of torture in India has permeated  a high degree of fear about the State agencies in the psyche of the ordinary population. On the contrary, fear generates mistrust, thereby impending the establishment of the rule of law in the country.

It has long been overdue as torture is recognised as a heinous practice that needs to be criminalized. Tackling the question of torture involves creating a respectable and independent mechanism where a complaint of torture can be lodged without fear of repercussions to the complainant, whereupon the complaint will be investigated promptly with the assistance of all modern crime investigation tools and the investigation leading into an impartial prosecution that could render a reasonable sentence as punishment to the perpetrator.

 Throughout history, torture has often been used as a method of effecting political re-education and coercion. In the 21st century, torture is considered to be a violation of human rights, and is declared to be unacceptable by Article 5 of the UN Universal Declaration of Human Rights. Signatories of the Third Geneva Convention and Fourth Geneva Convention officially do agree not to torture prisoners in armed conflicts. Torture is also prohibited by the “United Nations Convention Against Torture” which has been ratified by 147 states .

Torture – its meaning

The word ‘torture’ comes from the French torture, originating in the  Latin tortura and ultimately deriving the past participle of torquere meaning ‘to twist’.

Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him, or a third person, information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in, or incidental to, lawful sanctions(1).

Torture , the intentional infliction of severe physical or mental pain or suffering in order to intimidate, coerce, obtain information or a confession, or punish. In international law, the term is usually further restricted to actions committed by persons acting in an official capacity.

Custodial torture in India : Issue

India has amongst the highest rates of custodial deaths amongst democracies. There is no consistent database on this. But according to the National Human Rights Commission data, more than 17,000 people have died in custody since the mid-’90s in Lok Sabha , the government admitted to more than 1,000 custodial deaths in 2008-2009 alone. There is virtually no systematic record of torture that does not lead to death; nor is torture against children separately recorded.  Torture in police custody remains a widespread and systematic practice in India. ACHR’s research into patterns of torture in police custody since 2008 (ACHR’s2008 and 2009 Annual Reports on Torture) suggests that victims suffer high risks of torture in the first twenty four hours following detention.

There are no safeguards to ensure that a person taken into custody will have their detention recorded, have prompt access to a lawyer or impartial medical examination upon their arrival at the place of detention, or at the time of his release. The lack of any effective system of independent monitoring of all places of detention facilitates torture. Torture is the most naked assault on human dignity. In India as elsewhere, it is the aam aadmi who suffers the most. Torture in state detention is endemic in India, involving a range of practices including shackling, beatings and the administration of electric shocks. Disadvantaged and maginalized groups including women, Dalits, Adivasis and suspected members of armed opposition groups are those most commonly abused. Torture is also reportedly widespread in prisons. The National Human Rights Commission registered 1,596 complaints of torture of prisoners in 2008-09. The number of deaths due to torture is not routinely reported.

Torture and impunity – Legal Perspective

Indian police and security officials who commit torture or inflict other cruel, inhuman or degrading treatment or punishment have long enjoyed impunity for their actions. Several provisions within the Indian Criminal Procedure Code (CrPC) and various national security related laws provide immunity to these officials. Section 197 of the CrPC allows for all-encompassing immunity by providing that the Central or state government in question must grant sanction for the prosecution of any government official or member of the armed forces alleged to have committed a criminal offence “while acting or purporting to act within the discharge of his official duty”[2] .The Supreme Court has upheld this provision[3] and has stated that even those who abuse their power are considered to be “acting or purporting to act” in their official position and thus enjoy immunity. Other examples of immunity provisions in the CrPC include section 45(1), which specifically protects members of the armed forces from arrest without prior sanction for acts purportedly committed during official duty[4], and Section 132(1), which protects police, armed forces, and even civilians who engage in activities to help disperse crowds from prosecution without prior sanction[5].

Similarly with respect to national security legislation, the in famous Armed Forces Special Powers Act (AFSPA) provides immunity from prosecution barring government sanction for armed forces personnel purporting to act in the exercise of their powers, even while granting vast powers to, for instance, shoot and kill[6]. The Supreme Court upheld the need for government sanction for prosecution under the AFSPA in Naga People’s Movement of Human Rights v. Union of India[7]. Although the Court laid down various guidelines in Naga People’s Movement with respect to the implementation of AFSPA in order to curb abuses of power, in Masooda Parveen v. Union of India[8], the Court subsequently held that government prerogatives even trump the Court’s own earlier prescriptions in Naga People’s Movement. Other national security legislation, such as the Unlawful Activities Prevention Act (UAPA), similarly grants vast powers to security personnel and then requires government sanction for any prosecution for acts purportedly done under the powers of the Act[9].  Law enforcement personnel enjoy virtual immunity from prosecution for torture and other human rights abuses, and prosecutions remain sporadic and rare.

In “disturbed areas”, such as Jammu and Kashmir and the north-eastern states where the Armed Forces Special Powers Act is in effect, Armed Forces personnel enjoy additional immunity protection and there is virtually no accountability for violations.  

The Prevention of Torture Bill, 2010

The Prevention of Torture Bill, 2010 is also a very important step in this regard. The Prevention of Torture Bill in India, 2010 is meant to bring India closer in line with the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. India signed the Convention in 1997 but has yet to ratify it. Ratification is a process through which countries implement an international convention through a domestic legislation. The government recently decided to table Prevention of Torture Bill 2010 to address the issue.  

   Highlights of the Bill 
  • The Prevention of Torture Bill, 2010 seeks to provide for punishment for torture committed by government officials.
  • The Bill defines torture as “grievous hurt”, or danger to life, limb and health.
  • Complaints against torture have to be made within six months. The sanction of the appropriate government is required before a court can entertain a complaint.

The  Bill defines torture in a  limited sense. It states that if a public official  intentionally does an act to seek information or confession from a person by inflicting,

(i) grievous hurt to any person; or

(ii) danger to life, limb or health (whether mental or physical) of any person it would amount to torture.

Hence if a harm is inflicted on a person intentionally by a public official to seek information only then it would constitute torture. The definition not only ignores other purposes of torture like punishment and intimidation but also  makes infliction of grievous hurt or danger to life a necessary condition. Nevertheless, torture sometimes  include abuses like sleep and food deprivation, forceful positions and exposure to intense and continuous noise which are outside the ambit of physical harm or danger.

Further, Section 4 states that intentional infliction of grievous hurt must be coupled with animosity against a group in order to establish the crime of torture. Thus, if  a public official  inflicts grievous hurt on a person to extract information he would not be liable  unless it is proved that he had animosity against a group or community to which the person belonged.

Defects of the Bill

Section 6 states that a prior government sanction is required in order to prosecute a government servant. The section leaves wide scope for partiality and manipulation. A government may be biased towards its own employee. Also, it would be difficult for the victims to obtain such sanctions.

Moreover the limitation clause in Section 5 states that a complaint must be registered within 6 months of alleged torture but fails to recognize that sometimes the victims are subjected to prolonged torture which may last more than the specified period.There is no provision with regard to self- incrimination. The bill remains silent on the scheme of compensation and thus relies on courts to decide the amount of compensation is such cases. No appropriate review mechanisms to check interrogation practices are established under the bill. There is no provision to provide immediate legal help to those who have been arrested.

The convention states that no country must extradite a prisoner to another nation which has harsher laws than that prevalent in it. The bill fails to recognize this clause of the convention and remains silent on the issue.

Suggesstions for improvement  of the Bill

1. The definition of torture must be revised to include other purposes of torture like intimidation, coercion, punishment or discrimination.

2. Compensation Schemes must be enumerated in the bill.

3. Proper review mechanisms for interrogation must be established.

4. Clauses like procurement of  prior governmental sanction and  limited time period to file complaints must be removed.

5 A prohibition on the expulsion, return or extradition of persons to States where there are substantial grounds to believe those persons will face torture or cruel, inhuman or degrading treatment must be added.

6. Immediate legal aid must be provided to the arrested.

7. Other forms of torture which may not necessarily be physical in nature must be included in the definition.

 Conclusion

 If the government is serious about eliminating the use of torture and ensuring accountability for abuses, then any attempted legislation must, at a minimum, end all sanction requirements, provide adequate mechanisms for seeking compensation, and ensure the implementation of basic safeguards such as prompt access to legal counsel and judicial oversight.

The current draft of the Bill demonstrates that India does not take human rights seriously and only pays lip service to international norms and standards. Inviting suggestions for the Bill, the Select Committee said it would consider suggestions to incorporate provisions for monetary compensation of the victims of torture, payable by the torturers in addition to making the provisions regarding sanction of prosecution of the offending public servants purposive and meaningful.

Among other provisions, the definition of torture in the proposed Bill and the need to protect honest officials against frivolous prosecutions will also receive the committee’s attention.
The committee could also consider views on preventing tortured confessions to distort the course of justice.

References

  1. Press Release- Amnesty International of the USA, more information visit (www.amnestyusa.org)
  2. The Statesman – custodial death on the rise(14 april 2010).
  3. Deccan Herald – Experts differ on torture bill, by Deepak k Upreti, New Delhi, DHNS.
  4. Asia Centre of Human Rights: Prevent custodial Death in India(One World South Asia).
  5. PRS Legislative Research: Security/Law/Strategic affairs.
  6. Ethiopian Review, Amnesty International.
  7. The Prevention of Torture Bill (www.weeksupdate.com).
  8. The Torture Bill (www.indiaexpress.com).
  9. South India Cell for Human Right Education and Monitoring,(The Prevention of Torture Bill- an affront to civil liberties).

10.  Human Right Feature, Voice of Asia Pacific Human Right Network(www.hrdc.net/sahrdc)

11.  The Tribune Online Edition, Chandigarh, India(Prevention of Torture: Weak bill won’t do by Pushkar Raj (the writer is General Secretary of People’s Union for Civil Liberties, New Delhi).

End notes

  1. Torture, according to the United Nations Convention Against Torture.
  2. Code of Criminal Procedure [hereinafter ‘CrPC’], 1973, Section 197, available at: http://www.vakilno1.com/bareacts/CrPc/s197.htm
  3. See, e.g., Matajob Dobey v. H.C. Bhari, 1956 AIR 44.
  4. CrPC, Section 45(1).
  5. CrPC, Section 132(1).
  6. See, e.g., Armed Forces (Jammu and Kashmir) Special Powers Act, 1990, available at: http://www.unhcr.org/refworld/publisher,NATLEGBOD,,IND,3ae6b52a14,0.html.
  7. Naga People’s Movement of Human Rights v. Union of India, (1998) 2 SCC 109.
  8. Masooda Parveen v. Union of India and Ors, 2007 AIR 1840.
  9. Unlawful Activities (Prevention) Act Amendment Ordinance, 2004, Section 49(a).

Criminal Breach of trust Under IPC: A Critical Analysis

 

Author’s Introduction

 Name-     Avneesh Kumar, 3rd year student of B.A.LL.B. (Hons),

 Dr. Ram Manohar Lohiya National Law University

Introduction

Section 405.  of  IPC defines Criminal breach of trust in the following words- 

“Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits ‘criminal breach of trust.”

That is to say that the beneficial interest in the property in respect of which the offence is alleged to have been committed was vested in some person other than the accused, and that the accused held the property on behalf of that person. A relationship is created between the transferor and transferee, whereunder the transferor remains the legal owner of the property and the transferee has only the custody of the property for the benefit of the transferor himself or someone else. At best the transferee, obtains in the property entrusted to him only a special interest limited to a claim for his charges in respect of safe retention, and under no circumstances does he acquire a right to dispose of that property in contravention of the entrustment[1].

The  offence of criminal breach of trust  is  committed when  a person who is entrusted in any manner with  property or With dominion over it, dishonestly misappropriates it, or converts  it  to  his own use, or-dishonestly uses  it  or disposes it of in violation of  any direction of law prescribing the mode in  which the trust  is  to  be discharged, or  of  any  lawful  contract, express or implied, made by him touching such discharge,  or willfully suffers any other person so to do[2]

It cannot however be said that it is impossible, under all circumstances, for a person to commit criminal breach of trust in respect of his own property. Where the accused who pledged promissory notes with the complainant as security for a loan, induced him to hand them over to him (i.e. the accused) by pretending that he required them to collect money from his debtors with the aid of which he would pay cash to him (i.e. the complainant), it was held that the possession of the promissory notes, even without endorsement, in the hands of the person, with whom they were pledged, was of some value to the complainant as it gave him control over the accused and so long as they remained with him, they prevented the accused from using them to discharge the debts due by him to other creditors in preference to him and the complainant had thus, some sort of beneficial interest in the property and when he gave the notesto the accused for a definite purpose and the accused dishonestly disposed of them in violation of the legal contract, there was both entrustment and dishonest misappropriation[3].

The following ingredients are necessary to attract the operation of section 405.

(a)  The accused must be entrusted with property or dominion over the property; and

(b)  The person so entrusted (i.e., the accused) must-    

(i)     dishonestly misappropriate, or convert to his own use, that property, or

(ii)   dishonestly use or dispose of that property or wilfilly suffer any other person to do so in violation of

(1)   any direction of law, prescribing the mode, in which such trust is to be discharged, or

(2)  any legal contract made touching the discharge of such trust.

What Is Criminal Breach Of Trust?

The offence of criminal breach of trust, as defined under this section, is similar to the offence of embezzlement under the English law. A reading of the section suggests that the gist of the offence of criminal breach of trust is ‘dishonest misappropriation’ or ‘conversion to own use’ another’s property, which is nothing but the offence of criminal misappropriation defined u/s 403. The only difference between the two is that in respect of criminal breach of trust, the accused is entrusted with property or with dominion or control over the property.

As the title to the offence itself suggests, entrustment or property is an essential requirement before any offence under this section takes place. The language of the section is very wide. The words used are ‘in any manner entrusted with property’. So, it extends to entrustments of all kinds-whether to clerks, servants, business partners or other persons, provided they are holding a position of trust. “The term “entrusted” found in a 405, IPC governs not only the words “with the property” immediately following it but also the words “or with any dominion over the property”.

In the case of State of Gujarat vs Jaswantlal Nathalal[4],  the government sold cement to the accused only on the condition that it will be used for construction work. However, a portion of the cement purchased was diverted to a godown. The accused was sought to be prosecuted for criminal breach of trust. The Supreme Court held that the expression ‘entrustment’ carries with it the implication that the person handing over any property or on whose behalf that property is handed over to another, continues to be its owner. Further, the person handing  over the property must have confidence in the person taking the property. so as to create a fiduciary relationship between them. A mere transaction of sale cannot amount to an entrustment. If the accused had violated the conditions of purchase, the only remedy is to prosecute him under law relating to cement control. But no offence of criminal breach of trust was made out.

 In Jaswant Rai Manilal Akhaney vs State of Bombay[5],It was held that when securities are pledged with a bank for specific purpose on specified conditions, it would amount to entrustment. Similarly, properties entrusted to directors of a company would amount to entrustment, because directors are to some extent in a position of trustee. However, when money was paid as illegal gratification, there was no question of entrustment.

 In the case of State of UP vs Babu Ram[6], the accused, a sub-inspector (SI) of police, had gone to investigate a theft case in a village. In the evening, he saw one person named Tika Ram coming from the side of the cannal and hurriedly going towards a field. He appeared to be carrying something in his dhoti folds. The accused searched him and found a bundle containing currency notes. The accused took the bundle and later returned it. The amount returned was short by Rs. 250. The Supreme Court held that the currency notes were handed over to the SI for a particular purpose and Tika Ram had trusted the accused to return the money once the accused satisfied himself about it. If the accused had taken the currency notes, it would amount to criminal breach of trust..

 
In Rashmi Kumar vs Mahesh Kumar Bhada[7] the Supreme Court held that when the wife entrusts her stridhana property with the dominion over that property to her husband or any other member of the family and the husband or such other member of the family dishonestly misappropriates or converts to his own use that property, or willfully suffers and other person to do so, he commits criminal breach of trust.

 Entrustment

As the title to the offence itself suggests, entrustment of property is an essential requirement before any offence under this section takes place. The language of the section is very wide. The words used are ‘in any manner entrusted with property’. So, it extends to entrustments of all kinds- whether to clerks, servants, business partners or other persons, provided they are holding a position of trust. The word entrust is not a word of art. In common parlance, it embraces all cases in which a thing handed over by one person to another for specific purpose. It need not be express it may be implied. It not only covers the relationship of a trustee and beneficiary between the complainant and the accused, like master and servant, guardian and ward, and the pledgor and pledge. It connotes that the accused holds the property for, and on behalf of another. Hence in all such transactions like that of a consignor and consignee, bailor and bailee and hirer and hiree, there is an element of trust implied in the transaction because in all such relation, the property entrusted to the accused is ‘property of another person’.

 In order to constitute a legal entrustment, therefore, the complainant must be the owner of the property; there must be a transfer of possession; such transfer must be actual transfer, and not a fictional or notional one; such transfer should be made to somebody who has no right excepting that of a custodian, and such entrustment must be made to a person, and not to a company or a firm. These are the panchsheel of a legal entrustment. Mere transaction of sale cannot amount to an entrustment; entrustment means that the person handing over any property, or on whose behalf that property is handed over to another, must have confidence in the person, taking the property, so as to create a fiduciary relationship between them[8]. The word entrustment in this section, governs not only the words ‘with the property’ immediately following it, but also the word ‘or with any dominion over the property’, occurring thereafter. Similarly, the managing director of a company, including the amounts received from the subscribers, and dominion is as good as entrustment for the purpose of this section.

 For a valid entrustment it is not necessary that the accused should receive the money directly from the complainant. In the case of Dwarkadas Haridas v Emperor[9] Where under the terms of a contract, some goods were entrusted to the accused, who was to sell those goods, obtain money for them, and that money on account of the complainant, it was held that though he didn’t actually receive the money from the complainant, he was ‘entrusted’ with it within the meaning of this section.

Property

The definition in a 405 does not restrict the property to movables or immoveable alone. In the case of R K Dalmia vs Delhi Administration[10], the Supreme Court held that the word ‘property’ is used in the Code in a much wider sense than the expression ‘moveable property’. There is no good reason to restrict the meaning of the word ‘property’ to moveable property only, when it is used without any qualification in s 405. Whether the offence defined in a particular section of IPC can be committed in respect of any particular kind of property, will depend not on the interpretation of the word ‘property’ but on the fact whether that particular kind of property can be subject to the acts covered by that section.

The word ‘dominion’ connotes control over the property. In Shivnatrayan vs State of Maharashtra, it was held that a director of a company was in the position of a trustee and being a trustee of the assets, which has come into his hand, he had dominion and control over the same.

However, in respect of partnership firms, it has been held29 that though every partner has dominion over property by virtue of being a partner, it is not a dominion which satisfies the requirement of s 405, as there is no ‘entrustment of dominion, unless there is a special agreement between partners making such entrustment.

Explanations (1) and (2) to the section provide that an employer of an establishment who deducts employee’s contribution from the wages payable to the employee to the credit of a provident fund or family pension fund or employees state insurance fund, shall be deemed to be entrusted with the amount of the contribution deducted and default in payment will amount of the contribution deducted and default in payment will amount to dishonest use of the amount and hence, will constitute an offence of criminal breach of trust. In the case  Employees State Insurance Corporation vs S K Aggarwal[11], the Supreme Court held that the definition of principal employer under the Employees State Insurance Act means the owner or occupier. Under the circumstances, in respect of a company, it is the company itself which owns the factory and the directors of the company will not come under the definition of ’employer.’ Consequently, the order of the High Court quashing the criminal proceedings initiated u/ss 405 and 406, IPC was upheld by the Supreme Court

 Misappropriation

Dishonest misappropriations the essence of this section. Dishonesty is as defined in sec.24, IPC, causing wrongful gain or wrongful loss to a person. The meaning of wrongful gain and wrongful loss is defined in sec 23, IPC. In order to constitute an offence, it is not enough to establish that the money has not been accounted for or mismanaged. It has to be established that the accused has dishonestly put the property to his own use or to some unauthorized use. Dishonest intention to 
misappropriate is a crucial fact to be proved to bring home the charge of criminal breach of trust.

              Proof of intention, which is always a question of the guilty mind or mens rea of the person, is difficult to establish by way of direct evidence. In Krishan Kumar V UOI[12], the accurse was employed as an assistant storekeeper in the Central Tractor Organisation (CTO) at Delhi. Amongst other duties, his duty was the taking of delivery of consignment of goods received by rail for CTO. The accused has taken delivery of a particular wagonload of iron and steel from Tata Iron and Steel Co, Tatanagar, and the goods were removed from the railway depot but did not reach the CTO. When questioned, the accused gave a false explanation that the goods had been cleared, but later stated that he had removed the goods to another railway siding, but the goods were not there. The defence version of the accused was rejected as false. However, the prosecution was unable to establish how exactly the goods were misappropriated and what was the exact use they were put to. In this context, the Supreme Court held that it was not necessary in every case to prove in what precise manner the accused person had dealt with or appropriated the goods of his master. The question is one of intention and not direct proof of misappropriation.

The offence will be proved if the prosecution establishes that the servant received the goods and that he was under a duty to account to his master and had not done so. In this case, it was held that the prosecution has established  that the accused received the goods and removed it from the railway depot. That was sufficient to sustain a conviction under this section. Similarly, in Jaikrishnadas Manohardas Desai vs State of Bombay[13], it was held that dishonest misappropriation or conversion may not ordinarily be a matter of direct proof, but when it is established that property, is entrusted to a person or he had dominion over it and he has rendered a false explanation for his failure to account for it, then an inference of misappropriation with dishonest intent may readily be made. Prosecution need not establish the precise mode of dishonest misappropriation of conversion.

 In Surendra Prasad Verma v State of Bihar[14], the accused was in possession of the keys to a safe. It was held that the accused was liable because he alone had the keys and nobody could have the access to the safe, unless he could establish that he parted with the keys to the safe.

The offence under section 405 can be said to have committed only when all of its essential ingredients are found to have been satisfied. As in the case of criminal misappropriation, even a temporary misappropriation could be sufficient to warrant conviction under this section. Even if the accused intended to restore the property in future, at the time misappropriation, it is a criminal breach of trust.

 Doctrine of Public Trust and Interpretation of Law Courts

In the case of Common Cause, A Registered Society v Union of India[15] and in the case of Shiva Sagar Tiwari v Union of India[16], it was held by the Supreme court that a minister is in a position of trustee in respect of public property under his charge and discretion, and he must therefore deal with people’s property in just and fair manner, failing which he or she would be personally liable for criminal breach of trust.

In the case of Common Cause, the apex court imposed a fine of Rs 50 lakh on Captain Satish Sharma, former petroleum minister in the P V Narsimha Rao’s government for arbitrary exercise of discretionary power of minister in allotment and distribution of petrol pumps and cooking gas agencies; and ordered the central Bureau of Investigation.  To probe into the allotment scam and institute criminal proceedings for committing breach of trust against Captain Satish Sharma for abuse of office during his tenure as minister.

The bench consisting of justices Kuldeep Singh and Faizanuddin, setting aside order of allotment of petrol pumps said”

Not only the relatives of most of the officials  working for Captain Satish  Sharma but  even     his  own driver  and   the        driver of  his  additional Private   Secretary have been allotted  a petrol  pump and a gas agency respectively……………. There  is nothing on the record to indicate that the Minister kept any criteria in  view  while  making  the  allotments………….. no criteria was fixed,  no guidelines  were kept  in view, none knew how many  petrol   pumps  were available   for allotment, applications were  not invite and the allotments of petrol pumps were made in an arbitrary and discriminatory manner.”

The court explained that in a welfare state the Government provides a large number of benefits to the citizens and held:

“A Minister  who is the  executive  head  of the department  concerned distributed these benefits and largesse (generosity)s. He is elected by the people and is elevated to a position where he holds a trust on behalf of the people. He has to deal with the peoples’ property in a fair and just manner. He cannot commit breach of the trust reposed in him by the people.”

 In the case of Shiv Sagar Tiwara v Union of India[17], the apex court levied a fine of 60 lakhs on Mrs. Sheila Kaul, former Union Minister for Housing and Urban Development and former govermor of Himachal Pradesh and cancelled the allotment of 52 shops and kiosks (stalls) for arbitrarily, oppressively and un-constitutionally allotting the shops to her relatives, friends and staff members during her tenure as Minister. The court directed the Government to formulate an allotment policy within two months and complete the process of allotment within four months.

Justice Kuldeep Singh and Justice Hansaria, while imposing the fine said

“Since the properties she was dealing with were Government properties, the government by the people has to be compensated for breach of public trust. Mrs. Kaul should pay for causing pecuniary loss to the exchequer for action in an “oppressive and mala fide manner”, while making shop allotments.

However the apex court in a review petition filed by Mrs. Kaul, quashed the damages on compassionate ground having regard to the peculiar facts and circumstances of Mrs. Kaul, who was stated to be old, ailing and passing through great hardship[18].

It was thought that these decision have set at rest the controversy in respect of exercise of discretionary power by the Ministers, Governors etc., and have established jurisprudence of public accountability and transparency in the Government’s working and would be an eye opener to persons in high positions to exercise powers with restraint so as not to make it farce and mockery of rule of law and democratic process. But to the dismay of common man and disappointment to legal fraternity in a review petition, a three member bench of the Supreme Court consisting of the Justices Saghir Ahmed, Venkatswami and Rajendra Babu turned down its earlier decision of November 4 1996 and ordered for the refund of sum of Rs. 50 lakh to the petitioner and quashed the order of the court for launching of prosecution against Capt. Sharma for criminal breach of trust under section 406, IPC.

While endorsing the findings, it was found by the court that the conduct of the Minister was wholly unjustified, the court said nevertheless it falls short of “misfeasance”; and the petitioner “Common Cause”, not being an applicant for allotment, it could not claim to have suffered any damage or loss on account of conduct of Minister. There has to be an identifiable plaintiff or claimant whose interest are damaged by the public officer (tort feaser) maliciously or with the knowledge that the impugned section was likely to injure the interest of that person. As regards the imposition of pecuniary damages, it was said by the court:

“State cannot derive itself the right of being compensated by its officers on the ground that they had contravened or violated the fundamental rights of a citizen. Directing the Minister to pay, a sum of 50 lakh to the Government, would amount to asking the government to pay exemplary damages to itself, which is not tenable under law”.

Lastly, it was said by the court that the ‘Doctrine of Public Trust’ is not applicable in the case of ministers in discharging their duties.

I fail to understand the logic of such a farfetched argument that though the act of the Minister is wrong, it is not actionable, it also a derogation from the maxim of ‘Ubi jus ibi remedium’, this should not be so especially in a democratic country like India where public trust is the breath of the system. With due respect to the court that in a democracy the court cannot shirk from its constitutional responsibility by pleading its inability to provide remedy applying the colonial theory of “the king can do no wrong”. Another assumption of the court, that ‘the minister does not assume the role of a trustee’ in the real sense, nor does a trust comes into existence, is misleading. Moreover the fact that there is no injury to a third person in the present case is not enough to make the principle of public accountability inapplicable in as much as there was injury to the high principle of public law, that a public functionary has to use its power for the bona fide purpose and in a transparent manner.

 Criminal Breach of Trust by Public Servant or by Banker or by Agent

Section 409 of IPC says – Criminal breach of trust by public servant, or by banker, merchant or agent.– Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with [ imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

The acts of criminal breach of trust done by strangers is treated less harshly than acts of criminal breach of trust on part of the persons who enjoy special trust and also in a position to be privy to a lot of information or authority or on account of the status enjoyed by them, say as in the case of a public servant. That is why section 407 and 408 provide for enhanced punished of up to seven years (which is generally three years or/with fine)  in the case of commission of offence of criminal breach of trust by persons entrusted with property as a carrier, wharfinger or warehouse-keeper.

In respect of public servants a much more stringent punishment of life imprisonment or imprisonment up to 10 years with fine is provided. This is because of special status and the trust which a public servant enjoys in the eyes of the public as a representative of the government or government owed enterprises. Under section 409, IPC, the entrustment of property or dominion should be in the capacity of the accused as a public servant, or in the way of his business as a banker, merchant broker, etc. The entrustment should have nexus to the office held by the public servant as a public servant. Only then this section will apply.

In the case of Superintendent and Remembrance of Legal Affairs v. S K Roy[19], the accused a public servant in his capacity as a Superintendent of Pakistan unit of Hindustan Co-operative Insurance Society in Calcutta, which was a unit of LIC, although not authorized to do so, directly realized premiums in cash from Pakistani policy holders and misappropriated the amounts after making false entries in the relevant registers.

To constitute an offence of criminal breach of trust by a public servant under sec 409, IPC, the acquisition of dominion or control over the property must also be in the capacity of a public servant. The question before the court was whether the taking of money directly from the policy holders, which was admittedly unauthorized, would amount to acting in his capacity as a public servant. The Supreme Court held that it is the ostensible or apparent scope of a public servant’s authority when receiving the property that has to be taken into consideration. The public may not aware of the technical limitations of the powers of the public servants, under some internal rules of the department or office concerned. It is the use made by the public servant of his actual official capacity, which determines whether there is sufficient nexus or connection between the acts complained of and the official capacity, so as to bring the act within the scope of the section. So, in this case it was held that the accused was guilty of the offence under sec 409. 

 Dishonest Intention

Unless dishonest intention is shown, an offence under sec 405, IPC, cannot be committed. Every breach of trust in the absence of mens rea, is not criminal. The court should ascertain whether the state of mind in which the accused was, did not exclude the existence of dishonest intention which is an essential ingredient of the offence of criminal breach of trust. Evidence is certainly relevant for purpose of ascertaining whether the state of mind of accused render it possible or likely for him to have entertained dishonest intention when he dealt with the moneys entrusted to him. If the accused was really unable to form the criminal intention, he cannot be guilty of the offence under section 406.

In the case of Mohanlal Mulchand v Mehta Kanaiyalal Pranshanker[20], certain title deeds were entrusted to the accused for the purpose of making enquiries about some land. The accused did not return the documents and said that he had lost the bundle and that the task was not completed. It was found that the accused had used the title deeds to harm the transferee. Under these facts, it was held that the offence was complete when the documents were used to harm the transferee and that taking of money was not necessary to constitute the offence.

The prosecution is not bound to establish the mode in which the accused has appropriated the amount of entrustment. Dishonest misappropriation may be inferred from the established facts. Dishonest intention was held to have been proved in the case of a post master who entered an amount in the saving bank pass book of a depositor without entering the same in his account book[21].Where the accused took a gold jewel from a goldsmith for showing it to his wife and placing an order for a similar jewel but failed to return it and retained it with him towards some debt due to him by the goldsmith and claimed it to be his own, it was held that the accused was guilty of dishonestly retaining it and claiming it to be his by misappropriating it[22].

Every breach of trust gives rise to a suit for damages, but it is only when there is an evidence of mental act of fraudulent misappropriation that the commission of embezzlement of any sum of money becomes a panel offence punishable as criminal breach of trust. A mere breach of contract is not synonymous with criminal breach of trust. It is the mental act of fraudulent misappropriation that distinguishes an embezzlement, amounting to a civil wrong or tort, from the offence of criminal breach of trust. If there is no mens rea, or if other essential ingredients are lacking, the same set of facts would not sustain a criminal prosecution though a civil action may lie. A mere failure to repay the loan would not constitute a criminal breach of trust. Where the managing agents acted dishonestly, it was held that they were not liable for criminal breach of trust even though there has been a breach of contract causing loss to the policy holders of the company[23]. The mere fact that the payment was delayed in no ground for imputing a criminal intention on the part of the accused, when there is no particular obligation to pay it at a certain date.

  

Bibliography

Dr. KI Vibhute, ‘PSA Pillai’s Criminal Law’ (10th edn Butterworths, New Delhi 2008).

S. K. Sarvaria (edr), R. A. Nelson’s Indian Penal Code’ (9th Lexis Nexis Delhi 2003)

Jus A. B. Srivastava (ed) ‘Dr Hari Singh Gour’s Penal Law of India’ (11th edn Law Publisher, Allahabad 2000)

 Web Links

www.manupatra.com

www.judis.nic.in

www.goforthelaw.com

http://katzjustice.com

http://www.superindian.net 

http://www.indianexpress.com

http://www.siliconindia.com

http://www.hindu.com


[1] Jaswantrai Manilal Akhaney v State of Bombay, AIR 1956 SC 575.

[2] Sushil Kumar Gupta v Joy Shanker Bhattacharjee, AIR 1971 SC 1543.

[3] Re Venkata Gurunatha, AIR 1923 Mad 597.

[4]  AIR 1968 SC 700.

[5] AIR 1956 SC 575.

[6] AIR 1961 SC 751.

[7] (1997 [2] SCC 397).

[8] K Lakshman Das v K Krishno Murthy, 1981 CLR 60.

[9] AIR 1928 Bom 521.

[10] AIR 1962 SC 1821.

[11] AIR 1998 SC 2676.

[12] AIR 1959 SC 1390.

[13] AIR 1960 SC 889.

[14] AIR 1973 SC 488.

[15] (1996) 2 SCC 752.

[16] (1996) 6 SCC 558.

[17] (1996) 6 SCC 558.

[18] The decision was given by a bench consisting of Justices G. B. Pattnaik, R. P. Sethi and Bisheswer Prasad Singh in 2002.

[19] AIR 1974 SC 794.

[20] AIR 1950 Kutch 52, 51 Cr LJ 1139.

[21] Gopi Nath Tripathi v State of Orissa, 40 Cut LT 771.

[22] Kotamsath Appanna v Koppoju AIR 1953 Nag 310.

[23] Abhinash Chandra Sarkar v Emperor, 37 Cr LJ 439.

Registered users and Registered Proprietors Under the Trademark Law

From: Nandita Narayan

Registered proprietors and registered users[1]

Introduction

A consumer is duped if he buys a commodity presuming it to have originated from a certain identified source when actually it is not, and later he finds the commodity substandard. In the process, the reputation of the trader suffers. The interest of both the consumer and the trader can be saved if some definite symbol which marks out the origin of the goods from a definite trade source is attached with the goods emanating from such source. Such a symbol is called the trade mark. A trademark or trade mark is a distinctive sign or indicator used by an individual, business organization, or other legal entity to identify that the products or services to consumers with which the trademark appears originate from a unique source, and to distinguish its products or services from those of other entities. The essential function of a trademark is to exclusively identify the commercial source or origin of products or services, such that a trademark, properly called, indicates source or serves as a badge of origin. In other words, trademarks serve to identify a particular business as the source of goods or services. The use of a trademark in this way is known as trademark use. Certain exclusive rights attach to a registered mark, which can be enforced by way of an action for trademark infringement, while unregistered trademark rights may be enforced pursuant to the common law tort of passing off.

The Trade Marks Act, 1999, is the statute that lays down the laws for Trade Marks in India. The Act is in compliance with the TRIPS agreement and has been amended in the recent past.

Registered proprietor

A registered proprietor of trademark means the person for the time being entered in the register as proprietor of the trademark.[2]Any person claiming to be the proprietor of a trademark used or proposed to be used by him, who is desirous of registering it, shall apply in writing to the registrar in the prescribed manner for the registration of his trademark.[3] The procedure for registration is as specified under the Act.[4] The registration of the trademark shall be for a period of 10 years, and it can be renewed after that once the prescribed fee is paid to the registrar.[5]

As long as a proprietor of a trademark can prove that the mark is associated with the company alone, which is also the source of the trademark, and any use of the same by a third party is detrimental to its business interest or is bound to raise confusion among the public, the proprietor will be in a position to protect its rights in that particular mark. These rights may comprise the common law right of “passing off” or the statutory right of infringement of registered trademark or both.  Passing off is a type of unfair trade competition, or what may be termed “actionable unfair trading”, through which one person, through deception, attempts to obtain an economic benefit of the reputation which another has established for himself in a particular trade or business. The action is regarded as an action for deceit. Under the Act, an unregistered trademark does not receive protection, but it nothing in this Act shall be deemed to affect the rights of action against any person for passing off goods or services provided by another person.[6]The registered proprietor, if the trademark is valid has the exclusive right to use the trademark in relation to the goods or services in respect of which the trade mark is registered and to obtain relief in respect of infringement of the trade mark.[7]

In order to establish infringement with regard to a registered trademark, it is necessary only to establish that the infringing mark is identical or deceptively similar to the registered mark and no further proof is required. Infringement occurs when someone else uses a trademark that is same as or similar to your registered trademark for the same or similar goods/services. Trademark infringement claims generally involve the issues of likelihood of confusion, counterfeit marks and dilution of marks. Likelihood of confusion occurs in situations where consumers are likely to be confused or mislead about marks being used by two parties. The plaintiff must show that because of the similar marks, many consumers are likely to be confused or mislead about the source of the products that bear these marks.[8] Where the plaintiff was the registered owner of the trade marks Castrol, Castrol Gtx And Castrol Gtx 2 in respect of oils for heating, lighting and lubricating and comes to know that the defendant was carrying on business of selling multigrade engine oil and lubricants under the trade mark ‘Castrol Gtx & Castrol Crb’ in identical  containers as used by the plaintiffs. The prayer of the plaintiff for injunction was accepted as the user of the said trade marks by the defendants, had no right whatsoever to use the same is clearly dishonest and is an attempt of infringement.[9]  In another case, the plaintiff company manufactured drugs under the trade name “Calmpose”. The defendant company subsequently floated its similar product under the trademark “Calmprose”. The said two trademarks having appeared phonetically and visually similar and the dimension of the two strips being practically the same including the type of packing, the colour scheme and manner of writing, it was found to be a clear case of infringement of trade mark and the ad interim injunction granted in favour of the plaintiff was accordingly made absolute.[10] The aspects not amounting to an infringement or which can be used as a defence such as honest practices industrial or commercial matters, it is not such that to take undue advantage or be detrimental to trademark, etc are specified under the Act.[11] In Beecham Group Plc. vs. S.R.K. Pharmaceuticals 2004[12] the appellant was using the mark ‘AMOXIL’ in India since 1990. The respondent started using the mark ‘LYMOXYL’ in India from 1985. The respondent filed the application for registration of the mark in 1987 in India in the same class with respect to similar goods. The only difference between the two marks is in the prefix ‘LY’ and ‘M’. The Intellectual Property Appellate Board (IPAB) held that the respondent dishonestly adopted the mark by copying it from the appellant who had got the mark registered long ago.

 

Licensing of trademarks or registered users

The most significant difference between a trademark and copyright or patent is the inherent property right that exists once the work or the invention comes into existence. The symbols, logos or words, on the other had does not have in it any inherent property right, it is in fact derived by the association of such symbols with certain goods, and the goodwill created by such association.[13] However, since originally the sole function of trademark was considered identification of the source both in UK and USA, trademark and goodwill of business was considered inseparable and hence assignment of trademark without goodwill was considered not feasible.[14] This state of law caused considerable hardships and the Goshen Committee reported that such a theory based on goodwill governing assignment was no longer universally correct. They accepted the commercial view that goodwill of a business is inherent in the trademark itself, and thus UK and USA began to accept assignment without goodwill. This revelation slowly paved way for the lessening of the relevance of the source, provided the proprietor exercised sufficient control over the quality of goods.[15] In India trademarks both registered and unregistered is assignable.[16]

Licensing of trademarks is also permitted, where the proprietor of a trademark may, license the rights in the trademark to a third party, thereby permitting the third party to use its trademark in the course of trade.[17]

Any person other than a registered proprietor may be registered as a registered user of trademark in respect of all or any goods or services in respect of which the trademark is registered. This licensing is usually by way of an explicit contract that must be accompanied with the application for registration.[18]This agreement should disclose terms as to royalty, means for bringing permitted use to an end etc[19]. The permitted use of the trademark shall be deemed to be used by the proprietor for the purposes of section 47. [20]The term “permitted use” as defined under the Trade Marks Act, 1999, entails the use of the registered mark by a third party with the consent of the registered proprietor by way of a written agreement or by a registered user. [21]It is to be noted that even where a trademark is unregistered, the common law recognizes the licensing of such unregistered trademark. A leading case in this respect is the Cycle Corporation of India Ltd. v T.I Raleigh Industries Ltd.[22]The  question that arose in this case was whether a person other than the registered user and registered proprietor could be termed as a bona fide ‘user’ especially when there was no agreement existing at the time of filing an application for removal of trade mark under S. 46 of Trade Marks Act, 1940(present S. 47)? This was answered in the affirmative by the court, where it was held that even though the user was an unregistered user, the user will come within the perview of section 46, where the period of non-use by registered user or proprietor is determined and the registration is removed. But the court while deciding this should look into not only commercial interest of the parties but also public interest. There must be a direct connection between the, i.e. the unregistered has been supplying goods in the name of the registered trademark in question.

It should, however, be noted that such licensing should not result in causing confusion among the public or destroy the distinctiveness of the trademark being licensed.[23] In order to achieve this, licensing of trademark by the proprietor of the mark should be subject to strict conditions and requirements so as to ensure that the link between the source of the trademark and goods or services on which the trademark is being used is maintained.[24]

So far as a connection in the course of trade with the trademark continues to exist between the goods and the proprietor of the mark, the goodwill accruing out of such use shall get routed back to the licensor. This link among adoption of certain other measures can be maintained by way of use of appropriate trademark signifiers, references to the extent that the mark is being used under license, quality control and by maintaining and protecting the licensed trademarks against third parties by the licensor. In the event that a licensor uses the trademark as a commodity without establishing a trade connection between the licensor and the products, the goodwill arising out of such use may accrue to the licensee. In such a situation and in case of a dispute between the licensor and the licensee, the licensee shall be able to challenge the validity of the licensed trademark submitting the plea that with the trade connection between the licensor and the licensed trademark is missing, the licensee has accrued rights over the trademark and the licensed trademark is now pointing towards two sources, which is forbidden under law. In Barcamerica International USA Trust v Tyfield Importers Inc et al. [25] The Barcamerican Co had marketing rights in the U.K. for wines under the name of. They had registered this trademark, that later expired, and after which they licensed it to another company by a written agreement.  It did not provisions grant Barcamerica the right to quality control over the licensee’s production of wine.  A foreign company wanted to cancel this trademark for the purpose of selling their wine under the same name, and hence put in an application for the same. The court held that uncontrolled or ‘naked’ licensing may result in the trademark ceasing to function as a symbol of quality and controlled source… Consequently, where the licensor fails to exercise adequate quality control over the licensee, ‘a court may find that the trademark owner has abandoned the trademark, in which case the owner would be estopped from asserting rights to the trademark.’

Use and Non-Use

The application for registration of trademarks cannot be refused or the permission for such registration cannot be withheld on the ground only that the applicant does not use or propose to use the trademark and the registrar is satisfied that it is a company about to be registered under the Companies Act 1956, and the applicant intends to assign the trademark to that company, or the proprietor intends it to be used by a person as a registered user. If an aggrieved person feels that the trademark has been registered without a bona fide intention, and it has not been used by the registered user for a continuous period upto 3 months before the application for removal has been filed, then on filing of such application, the registrar can remove the trademark from the register. [26] And in cases where there was a bonafide intention at the time of registration, but there no bonafide use of the goods or services for continuous period of 5 yrs, upto 3months before the filing of the application by the aggrieved person, this would amount to non-use. This is for the purpose of preventing trafficking in trademarks. It considered as one of the cardinal sins of trademark.[27] In American Home Products V Mac Laboritories P.Ltd,[28] an American Co entered into an agreement with an Indian distributor to distribute its goods in India. The Indian company, imported a machine for the manufacturing of such goods, but did not manufacture for a considerable period of time. The Indian distributors entered into an agreement as the registered user only after the application for rectification on the basis of non-use was filed. The court held that since the company made preparations for the manufacture of goods, although it did not commence its marketing, it would not amount to non-use as intention does not mean that the proprietor should necessarily market the goods. In Bon Mattin Trade Mark,[29] the trademark was registered in U.K. but the proprietor was from France and he sold the products there. An application of removal was filed on the basis of non- use in U.K. but the proprietor had entered into an agreement with a distributor, after the application for rectification and he the first sale was after three years of the application. It was held that there was intention to establish a market in U.K by the proprietor. In Mouson & Co v Boehm,[30] it was held that the proprietor’s intention to abandon the trademarks was a necessary component for their non-user justifying removal. In Vishnudas Trading v Vazir Sultan Tobacco Co. Ltd,[31] the respondent company registered the trademark “Charminar” for all “manufactured tobacco”. The Appellants also used the same trademarked name for zadra and quiwam that are also tobacco products. It must be noted that the respondents only manufactured cigarettes and nothing else. The appellants filed for rectification application on the ground of non-use in relation to zadra and quiwam. The court held that even though manufactured tobacco gave a very wide interpretation to the goods that will fall within the trademark, since the respondents manufactured only cigarettes, they will have trademark only with regard to that product, and the provisions of non-use will apply

 Registered user , permitted user and a registered proprietor

A permitted user shall have no right to institute any proceeding for any infringement.[32] But a registered user can take proceedings against infringement. Subject to any agreement subsisting between the parties, a registered user may institute proceedings for infringement in his own name as if he was the registered proprietor and he shall not be liable to costs unless he enters and makes an appearance. The registered user does not have the right to assignment and transmission. But the right of a registered user of a trade mark shall not be deemed to have been assigned or transmitted within the meaning of this section where the registered user being an individual enters into a partnership with any other person for carrying on the business concerned; but in any such case the firm may use the trade mark, if otherwise in force, only for so long as the registered user is a member of the firm and where the registered user being a firm subsequently undergoes a change in its constitution; but in any such case the reconstituted firm may use the trade mark, if otherwise in force, only for so long as any partner of the original firm at the time of its registration as registered user, continues to be a partner of the reconstituted firm.[33]

Bibliography

Books

  • Principles of Intellectual Property, N.S. Gopalkrishnan and T.G.Agitha, Eastern Book Company, 1st edn, 2009
  • Law relating to intellectual property rights, Ahuja

Articles

  • ‘Naked’ licensing, Ivan Hoffman
  • Trademark and their licensing to prevent distinctiveness of the brand, Anupam Panday, AZB & partners
  • India- a changing IP environment, Anoop Narayanan, Majmudar & Co
  • Trademark law in India and its violation- an analytical study, Subhojyoti Acharya
  • Trademark law in India: law and procedure, George Kutty
  • Infringement of a trademark, Amarjith and associates

 


[1] Nandita Narayan ,VII Semester, National University of Advanced Legal Studies, Cochin

[2] Section 2 (1)(v) of the Trade Marks Act 1999

[3] Section 18 (1) of the Trade Marks Act 1999

[4] Chapter III of the Trade Marks Act. Sections 18-26 of the Act.

[5] Section 25 of the Trade Marks Act 1999

[6] Section 27 of the Trade Marks Act 1999

[7]Section 28(1) of the Trade Marks Act 1999

[8] Section 29 of the Trade Marks Act 1999

[9] Castrol Limited Vs P.K. Sharma  2000(56)DRJ704

[10] Ranbaxy Laboratories Ltd. Vs. Dua Pharmaceuticals Ltd.  AIR1989Delhi44, 1988(2)ARBLR315(Delhi), 36(1988)DLT133

[11] Section 29

[12] (28) PTC391 (IPAB)

[13] Neil J. Wilkof, Trade mark Licensing, Sweet & Maxwell, 1995, p23.

[14] Pinto v Badman (1891)8 RPC 181, “The brand is an identification of the origin and if you transfer the indication of the origin without transferring the origin itself, you are transferring a right, if any right at all. To commit a fraud upon the public, and such a right is not recognised by the law of England.”

[15] In Bowden wire Co Ltd. V Bowden Brake Co Ltd. (1913) 30 RPC 580 “the argument that the trademark and the goodwill attached to the business are inseparable, is slowing losing its strength today as merchandising in the trademark has itself become the trend of the day.”

[16] Section 38 and 39 of the Trade Marks Act 1999

[17] Registered users under section 48 of the TradeMarks Act.

[18] Section 49 ; in Gujarat Bottling Co Ltd v Coca Cola Co (1995) 5 SCC 545.the use of trademark by a person could either be by grant of a license which is to be governed by common law or by way of registration under the statute, the later requiring a written contract between the registered proprietor and the registered user.

[19] Trade Marks Rules 2002, R.81

[20] Section 48 

[21] Section 2 (1)( r )

[22] (1996) 9 SCC 430

[23] Section 50 (1) (c) (i)

[24] Section 50 (1) (d) : may be cancelled by the Registrar on his own motion or on the application in writing in the prescribed manner by any person, on the ground that any stipulation in the agreement between the registered proprietor and the registered user regarding the quality of the goods or services in relation to which the trade mark is to be used is either not being enforced or is not being complied with;

[25] 289 F.3d 589, 595- 98 (9th Cir.2002).

[26] Section 47(1).

[27] Re American Greetings Application  (1983) 2 All ER 609

[28] (1986) 1 SCC 465

[29] (1989) RPC 536

[30] 26 Ch D 398

[31] (1997) 4 SCC 201

[32] Section 53

[33] Section 54

SOCIO ECONOMIC SURVEY OF THE PROJECT AFFECTED FAMILIES

Mohan Rao Bolla, Former Principal, R. G. I. Law 

Asst. Prof. DNR College of Law, Bhimavaram 

Researcher guided by Prof. Annam Subrahmanyam, Andhra University, Visakhapatnam. 

SOCIO ECONOMIC SURVEY OF THE PROJECT AFFECTED FAMILIES   

The  Initiative  

KAKINADA SPECIAL ECONOMIC ZONE PRIVATE LIMITED (KSEZ), having been endowed with an objective of setting up of industrial establishments contributing for the development of the area, started bi fold activity of purchasing and acquiring lands in the Notified Area. While the land acquisition is in progress, there has been the ‘hue and cry’ and  the agitations against the KSEZ added by erection of tents, hunger strike and non co operation by the peasants preventing the entry of even the vehicles into the villages.  However, the SOCIO ECONOMIC/STATUS SURVEY of the PROJECT AFFECTED FAMILIES has been taken up by the researcher in the notified area with the consent of the KSEZ. 

Objective Assessment and the Fair Way             

The Socio Economic Survey of the Project Affected Families has been organized with a humanistic perspective. Keeping this in view, the survey activity has been  conducted taking all precautions about several aspects relating to the objective assessment, categorization of the peasants and special care was taken not to be carried away by the politics prevailing and spreading in the villages at the time of conducting the Socio Economic Survey. 

 The research activity has been conducted taking all precautions about several aspects relating to the objective assessment and categorization of the peasants and special care was taken not to be carried away by the politics prevailing and spreading in the  villages at the time of the socio economic survey itself.    

  

The  Survey of the Project Affected Area   

            The area of the survey i.e., the Project Affected Area which actually spread over Three  mandals namely Uppada Kothapalli Mandal and Thondangi Mandal and Kakinada Rural Mandal.  The KSEZ takes over land in all the mandals but   displacement of the Project affected Families  only includes a total number of 13 hamlets two villages in Uppada Kothapalli  Mandal and one hamlet in one village of  Kakinada  Rural Mandal.  

The hamlet wise particulars of the three villages where the socio economic survey conducted were as under:  

Villages in Uppada Kothapalli Mandal  Village/hamlet in Kakinada (rural )                                       

Mandal 

SRIRAMPURAM                  PONNADA  THAMMAVARAM 
Srirampuram                    Ravivaripodu  Polavaram 
Kollavaripalem                Dadalapalem    
Pativaripalem    
Bandipeta    
Mummidivaripodu    
Karrivaripalem    
Mathavaripalem    
Katurivaripalem    
Ramaraghavapuram    
Buchireddipalem    

The Survey Population  

The Survey population includes all the families in the clusters of SC families, BC families and OC families. All the households situated in all the above clusters/hamlets have been covered in ‘toto’.  The total number of estimated families to be covered in the survey were  roughly about 1500 households.  

 Preliminary Survey and Interactions  

  A preliminary survey of the Project Affected Area was organized for the hands on approach, as part of the formulative research practices. Consequent to the preliminary field survey, certain hamlets where only the inhabitants  belong  to the Scheduled Castes, Backward Classes and Other Castes could be identified and segregated accordingly.  

            In Srirampuram village the ‘de facto’ ex surpunch of the village panchayat Mr Pirla Govindaraju[1] had given a rough sketch and demography of the villages/ hamlets and also the voters list of the past assembly elections held in 2004.  

          The researcher was directed to meet one Sri Bavisetti  Narayana swami[popularly called Peda Kapu garu-the village head]  of Ravivaripodu[2]  for undertaking any activity in the village. It was apt enough who also gave some  particulars of the villagers.  The respondents in the preliminary survey  have expressed that they are being carried away by the govt. policy of establishing KSEZ and evacuating their native villages without taking their consent.  

           Some of the villagers led by some Land Lords and Small farmers of Ravivari Podu have been agitating against the taking over of their lands.  According to them, it is not  fair for the government or KSEZ  to acquire  their lands even without their consent.   Mostly the villagers are not happy with the attitude of the political leaders who did not come to their rescue against the government policy and the KSEZ . 

              Their grouse was particularly against the government authorities who did not even conduct any awareness sessions for the villagers of all the Project Affected Families of the KSEZ[3].   

The Research Methodology   

It was decided to organize the survey following Inductive method of research i.e., entering into the field with open mind and conduct the empirical survey without any subjective involvement.  Collection of data shall be based on Interview conducted with the help of the schedule finalized in consultation with the most experienced and eminent researchers besides the research supervisor.  

The following clusters/hamlets of the Project Affected Families  have been segregated adopting the Stratified Random Sampling technique. The village in Uppada Kothapalli Mandal wherein both the lands are being taken over and the villages are sought to be evacuated. A hamlet attached to  Moolapeta village also forms part of the Project Affected Area. So also a single hamlet of Thammavaram village namely Polavaram located adjascent to Sakthi Gas Industries Limited in the shore area of Kakinada Rural Mandal. Pertinently, this hamlet is also being evacuated along with the other 12 hamlets of Uppada Kothapalli Mandal.  

Srirampuram/Ramanakkapeta  Village- Uppada Kothapalli Mandal 

Strata   Name of the cluster/hamlet  Type of population  Class  Remarks 
01  Mathavaripalem 

Katurivaripalem 

Kollavaripalem 

Scheduled 

Castes 

Landless poor    
02  Srirampuram 

Karrivaripalem 

Pativari palem 

Backward 

Classes 

Landless poor 

Marginal farmers/ Landless poor 

  
03  RamaRaghavapuram 

Buchireddipalem 

Mummidivaripodu 

Bandipeta 

Forward 

Classes  

Marginal farmers 

Landless poor 

  

Ponnada Village- Uppada Kothapalli Mandal 

Strata  Name of the Cluster/hamlet  Type of Population  Class  Remarks 
01  Ravivari Podu  Upper Classes  Landlords, Small/Marginal Farmers  Larger landholdings are not yet sold or given possession to the KSEZ 
02  Dadalapalem  Scheduled Caste  Landless poor    

  

Thammavaram  Village –Kakinada  Rural Mandal 

Strata  Name of the Cluster/hamlet  Type of Population  Class  Remarks 
01  Polavaram  Backward Classes  Tiny landholders/landless poor    

  

The Schedule 

 A comprehensive schedule was prepared keeping in view of the Resettlement and Rehabilitation Package[4].  The bi- lingual schedule contained queries including several issues relating to 

  • Name  and address of the of the project affected family 
  •  The number of family members,  
  • Social, educational and marital status of the family members 
  •  Occupations of the members of the family  
  •  Number, age and educational status of the children 
  •  Details of the land and house hold property 
  • Nature and extent of the property-small, marginal etc.,   
  • Nature and number of the crops grown and  
  • The details of cattle rearing and  
  • Their opinion about the industrial development initiated by the government through the SEZ.  

Categorization of the peasants and the countrymen was done basing on the guidelines laid down in the RR Package[5].  The schedule was duly compared with the formats of similar research schedules of some researchers in Andhra and Nagarjuna Universities. The Co-ordinator and the Director of SEZ have also been consulted before its finalization.    

 The Survey at Srirampuram Backward Classes Cluster/habitat   

The Initial Hurdle  

            The survey at Srirampuram could be commenced as per the Action Plan but for the total number of  volunteers attended were only 8 out of the 15 selected at the special orientation session organized at the Andhra University Post Graduate Center for the NSS Volunteers.  However, the survey could be commenced  at about 10 am.  All the volunteers were divided into 4 batches of each comprising of 2 volunteers, In each batch one volunteer would enquire the inmates about the details as per the Schedule  whereas the other would record  the same to save time and provide support to the volunteer.  They were well informed in advance not to go into any  un necessary details.  The volunteers were given some mock sessions as to how they can sustain from being carried away into lengthy discussions and revelations about KSEZ by the innocent villagers.  

                In spite of the vehement resistance[6] from some of the innocent peasants   there was a coverage of a total number of  157 families. It took a lot of time to explain the significance of the independent research work being taken up as part of the author’s Ph.D., study,  consequent to which there is scope for the government to adopt some positive approach towards the poor peasants in  implementing the  rehabilitation schemes.  

              But the day had ended at a halt for the survey created by some of the semi educated youth of the village added by some innocent elder women who did not want to allow an exercise. According to  them the socio economic Survey may  pave the way to force them to lose their lands and their native place itself.  The survey had to be halted when some of the women were immensely showering curses. 

 Second Orientation for the Volunteers  

             The second orientation programme for the volunteers of Nehru Yuva Kendra was organized for the National Service Volunteers with the help of Sri N S Manoranjan , the District Youth coordinator .  A total number of about 35 volunteers had participated in the orientation programme.  A total number of  16 candidates were selected who belong to the neighbouring villages/mandals of  the project affected area.    

              Care was so taken to involve the volunteers of rural background and educated  only up to Intermediate and Graduate level.  It was so decided in view of the experience at the Srirampuram village .  The Research volunteers team had met at the cyclone shelter for a briefing and started off with the research activity in spite of the intermittent hindrances to slow down the research work.  However, the research teams could continue to proceed with the data collection for 2 days continuously at that place. 

  

The Hazards of the Survey at  Mummidivaripodu and Bandivari peta  

              The next day survey could be continued at Mummidivaripodu[7] and Bandivaripeta[8].   There were misgivings at a particular household where the family members especially the housewife, mother of the two sons who were lost due to a thunder bolt, was literally crying and was not inclined to allow the house owner to give the details.  The attempt to convince the mother and the house owner was futile.  

             There were as many as 10 households where the housewives were trying to evade the collection of data.  The efforts of  explaining the house owner about the socio economic survey where by the coverage in the research activity could be complete and accurate were futile as the house owner turned down the proposal.  

              The research activity could hardly continue by convincing explanation about the significance of the social research activity, which may ultimately help the villagers. Lack of transport facility from one place to the other- intra village and inter village, bad roads and continual rains are the added disadvantages for the conduction of survey besides the in availability of the male member in the family. 

              The research team had to wait at the last hours of the day for the availability of male members of the family. There were also hardships due to lack of any transport facility during the late hours. The research team could not also get a cup of tea at times unless there is a very great house owner whose hospitality would go to the extent of providing water for the research team.  Needless to mention that there are no hotels near by.  Despite the hardships, the collection of data at the two hamlets  could be completed  within a span of 4 days with the help of the volunteers.   

Survey at the SC clusters/hamlets -Mathavaripalem and  Dadalapalem 

The survey teams got divided into two groups and one group was to collect the data at Mathavaripalem and the other at Dadalapalem.  Thus, the research activity could be expedited at the two hamlets inter alia as majority of the volunteers belong to SC community and some of the inhabitants are related to them.  

Abandonment’ viewed as Death  

                     At Dadalapalem, there was an aged  woman who informed that her husband dead, while the others near by were stating the truth that ‘he’ had  abandoned.  On enquiry, the woman answered the volunteer that in her view such a husband was dead who lived with another woman abandoning the real wife. She treats the abandonment as ‘ death’! She got her view replicated to show her husband ‘late’ in the ration card. Can such a view and treatment would cure the abandoning husband?!   

 Data Collection at Mathavaripalem Strangely Smooth 

             The collection of data could go on unhindered at Mathavaripalem and the two neighbouring hamlets of the weaker sections, who hardly had a little land holdings. There were some of the inmates known   to the team leader, especially, one Mrs Madhavi, who had unsuccessfully contested in the elections for the village president-ship.  some of the survey volunteers also know some of the villagers which could also pave the way for the survey activity to be expedited. 

                 The villagers some of whom had sold away their lands, told the survey volunteers that   the Revenue authorities especially the Mandal Revenue Officer and the surveyor have been demanding for bribes to forward the files for the completion of the sale  proceedings. 

                   The survey work also revealed some more startling facts that some of the villagers are involved in the preparation and sale of country liquor besides toddy.  There had been constant vigil by the Arrack Dealers and Prohibition and Excise Authorities but satirically   of no use.   Besides the other common social evils, this menace makes the life miserable for the villagers and particularly the women who obviously are the real victims.   

             The other social evils are Illiteracy pre dominantly among the elders and more in women, Child Marriages, Child labour and more of girls etc., It seems very common for the villagers to perform marriage of girls just after they are ‘pubert’. Some of the girls are seen carrying evern at the age of sixteen due to the customary practices and by the age of 20 years some of the girls are mothers of one or two children. The efforts of the anganwadi workers seemingly futile due to lack of education among the village folk.   

The Agitating ‘Ravies’ of Ravivari podu 

In Ravivaripodu[9],  in view of the fact that there was a tent erected and existing- at the entrance of the village between Mahalakshmi Temple and the Anjaneya Swamy Statue- showing the signs of agitation the researcher and his team had to at length explain about the research activity to the elders of Ravi families.   

           It was so explained that the socio economic survey was taken up as part of the research study of the author and not at the initiation of the KSEZ. But the Ravies’ were not inclined to give their consent for the conduction of the survey despite the added explanation that their views in the form of their grievances would also be submitted to the Revenue Officials at the Divisional and District level but in vain. The baggage of the members of the research was snatched away demanding the return of the survey formats by one of the village youth and some women of the village were literally weeping that their ‘hubby Gods [husband is traditionally considered as God]’ might scold and batter them for giving information and for according signs /thumb impressions on the survey formats.  

 Thus, the survey had inevitably been kept in abeyance and the author had to   seek the help of the Co ordinator,  K SEZ for help. 

 The Right Intervention 

            With good offices of the Co ordinator,  the Revenue Divisional Officer had convened a meeting for the villagers to explain the villagers about the strategy of the government and the KSEZ along with the ‘modus operandi’ of taking over of the lands and the rehabilitation to be taken up by the government in course of time. The duo had ‘inter alia’  explained that the socio economic survey was being organized with the knowledge and consent of the Revenue Divisional Officer and moreover,  it is an academic activity of the author prosecuting Ph. D., course and therefore, the  peasants were expected to cooperate with the research process. It was also clarified by the officials that the process of taking over of lands would not stop if the ryots would not voluntarily sell their lands  to the KSEZ and the government would be forced to pass ‘awards’ for the completion of the taking over process.      

Thus, there was a ground prepared even in the absence of the author,  for the continuation of the survey at the village as the Revenue Divisional Officer has suggested the farmers to allow the conduction of the survey in academic interest and the government is likely to come forward with some positive benefits to the poor peasants.  

Continuation of the Survey  

The Survey activity was continued at the other hamlets of the village Srirampuram viz., Ramaraghavapuram. Kollavaripalem, Pativaripalem, Katurivaripalem and Karrivaripalem without any hindrances from the villagers but for the inclement weather, lack of transport facility in and out of the villages, the survey work had continued for more than one week to cover these villages.

 Ramaraghavapuram Survey

 The survey work at the Ramaraghavapuram[10] hamlet was sought to be conducted involving the local youth in the survey work. Some of the youth, educated and being educated, showed enthusiasm to collect the data to get involved in the survey work. They were explained and demonstrated as to how the data had to be collected supplying good number of survey formats. But the youth obviously did not show any interest further to collect the data of the project affected families in their own village for the reasons best known to them.  Only one student studying first year B.Sc., had showed a little interest by completing as many as 8 survey formats. 

 Some startling facts came to light at the village while interacting with the peasants at the hamlet.  One small farmer [ Mr.Garaga  Babji] stated that his half acre land was surveyed by the village surveyor and had been mixed up to be sold away  to the KSEZ and the matter was settled as he was offered some  amount.  However, he was not ready to make any complaint about it as it would be of no use for him. 

Some of those who sold their lands to the KSEZ told the research team leader that ‘formalities’ were collected in huge sums from them at the Mandal office for forwarding the files to the KSEZ office. Ironically, people for one reason or the other, had been indifferent towards the corrupt practices.   

 Butchireddipalem 

            The survey work at Butchireddipalem[11]the very small hamlet could be completed with ease comparatively, by the researcher and his team of volunteers. It was a very small colony with about 20 to 30 families of ‘Reddy’ community living separately from the other villagers for their ‘special identity’.  

  The stories revealed by Butchireddipalem small farmers also corroborate the version of the Ramaraghavapuram ryots.  One village youth narrated that he had to strenuously wander to the MRO office from one table to the other for days together to get his file forwarded to the KSEZ  office but could not [get help from even the TV9 channel which has been in news for the ‘Tehelka’ operations in the state of Andhra Pradesh ] help and to finally surrender to the corrupt officials at the Mandal Revenue Office. However, the Mandal Revenue Officer was later caught red handed and was suspended.  

 The Third Phase Survey at Srirampuram and Ravivaripodu 

             The survey of substantial number of households in Srirampuram and Ravivaripodu, were left out initially due to the hindrances created by the ‘innocent’ villagers. The survey was taken up to cover all the households in the third phase by the research team despite some attempts by some youth in the village to hinder the survey work. It is conducted with very less number of volunteers and it went on with more accuracy and more interactivity for about 4 days to get completed. 

             Some of the villagers were so curious to get their households covered in the survey at this stage.  The villagers were ready with their ration cards and wanted even one individual to be treated as a family to the surprise of the volunteers but when they were made to realize the dire effects of the social conditions that the children were not actually feeding their parents and there was many a parent to lead strenuous life working hard at the old age.  The scene was as common as that of the urban concrete jungles. 

Survey at Polavaram 

             The researcher and his  team had started the preliminary work for the collection of data at the Polavaram hamlet and data collection was done for the latter half of the day.  

     In the mean while, a photographer  had been engaged to get at least one  photograph  of  each one of  the hamlets.  He was directed to go to Polavaram village of Kakinada Rural Mandal alone after taking some snaps at the hamlets of Uppada  Kothapalli Mandal as the author team was engaged in guiding the data collection work near Ravivaripodu village. 

 The Photographer’s Confinement and …

              The photographer was about to leave for the day and therefore, he was told to take a snap at the habitat and to go home.  He had gone there to take a snap near a temple where children were playing at about 4pm on that day.  

               But{as the villagers did not as they told the team leader later, get proper answer for taking the snap,} they had confined him for hours together, until the team leader of the research volunteers’ team go  to get him released from the confinement.  

               The researcher was to suffer a lot due to the hurried travel and an accident in the darkness on the beach road while crossing the road at the Sakthi Gas Company.  The author  had to undergo treatment for 3 days giving rest to the research work also. 

  

The Last Phase of Data collection  

  

                In the last phase the only one hamlet of the Thammavaram village viz.,Polavaram of Kakinada Rural Mandal was taken up   The last phase could be completed within 3 days as all the volunteers were deployed in the hamlet for the survey. It is interesting to note that almost all the male elders of the hamlet get away for the work so early by 7 am itself and the survey work could not be commenced so early.  And therefore, the research volunteers had to stay back to get the survey work completed at the late hours. Still there were as many as 10 households left out for the team leader to visit the hamlet again to get one of the volunteers deployed to cover the residuary work.    

Data  Compilation and Analysis 

  First Round of Data Compilation 

                   The first round of compilation was started with the help of the volunteers to get the  preliminary details of the project affected families. It took 3 days for the whole team of volunteers to arrive at the figures after cross checking.  The total number of families, the total number of households, the dry or wetland holdings, number of children and adults, predominant caste at the village and the youth educated up to Tenth standard were collected  after sorting out and setting the formats.  The following preliminary details were submitted to the KSEZ in the form of an abstract enclosed separately. 

                Then in consultation with the KSEZ, the feeding of the family wise details to the computer was taken up.  It was sought to obtain the hamlet wise particulars of all the project affected families.  The data was reset into tabular forms to get it summed up wherever necessary.  The heads of the analyzed data constitute the salient features of the various heads indicated in the RR Package[12]

                The process of compilation, analysis and preparation of reports had been in continuous consultation with the coordinator and the Director of KSEZ.  The data which depicts the hamlet wise particulars of the project Affected families was also submitted separately in the form and size suggested by the KSEZ authorities with all the details including the soft and hard copies.  Further, all the formats used for the collection of data were spiral bounded were submitted before submission of this report. 

                 There was a lengthy discussion about the data and the reports submitted by the research team consequent to which certain suggestions were given by Sri Murthy about the preparation of the final Report.  This final report was prepared keeping in view of all the suggestions thus given. The salient features of each one of the hamlet were also depicted separately along with the photograph of each one of the hamlets in the report. 

 Table I –[13]                                                     SRIRAMPURAM-BC CLUSTERS 

SL NO.  HAMLET  CATE 

GORY 

FAMILIES  LAND HOLDINGS 

DRY         WET 

BPL FAMILIES  FAMILY MEMBERS  REMARKS 
01  SRIRAMPURAM[14]  BC  282  114.05  52.55  273  1003  The shepherd rearing BC village center for all other hamlets for the weekly market 
02  KARRIVARIPALEM  BC  61  24.10  3.80  61  224  The Most backward among the BCs live here 
04  PATIVARI PALEM  BC  34  45.75  12.60  34  113  The entire hamlet inhabited by toddy tappers 
         377  183.90  68.95  368  1340    

Table II [15]                                                        SRIRAMPURAM-SC  CLUSTERS 

SL NO.  HAMLET  CATE 

GORY 

FAMILIES  LAND HOLDINGS 

DRY         WET 

BPL FAMILIES  FAMILY MEMBERS  REMARKS 
01  KATURIVARIPALEM  SC  48  4.74  —  48  192  The most backward segment of the area among SCs 
02  KOLLAVARIPALEM  SC  92  9.48  —  92  396  The other  backward segment of the area among the SCs 
04  MATHAVARIPALEM  SC  110  17.99  —  110  406  Majority of the youth and women are seen addicted to vices and country liquor available 
         250  32.25  —  250  994    

Table III                                                         SRIRAMPURAM-OC  CLUSTERS 

SL NO.  HAMLET  CATE 

GORY 

FAMILIES  LAND HOLDINGS 

DRY         WET 

BPL FAMILIES  FAMILY MEMBERS  REMARKS 
01  BANDIPETA  OC  121  96.85  4.5  115  492  The land owners grew Sapota, cashew, mango and others live on  other agricultural operations 
02  MUMMIDIVARIPODU  OC  135  124.26  35.2  128  508  The land owners grew Sapota, cashew, mango and others live on  other agricultural operations 
03  RAMARGHVAPURAM  OC  150  63.86  3.00  147  569  The land owners grew casurina and others live on  other agricultural operations including nurseries 
04  BUTCHIREDDIPALEM  OC  33  36.65  1.00  33  93  The reddy community hamlet who are involved in business & dwell in neat well built houses 
         439  321.62  43.7  423  1662    

 Table IV                                                         PONNADA -SC  CLUSTER

SL NO.  HAMLET  CATE 

GORY 

FAMILIES  LAND HOLDINGS 

DRY         WET 

BPL FAMILIES  FAMILY MEMBERS  REMARKS 
01  DADALAPALEM  SC  67  5.5  —  67  243  The SC hamlet is nearer to Bandipeta and Mummidivari Podu 
                 

 Table V                                                         PONNADA -OC  CLUSTER 

SL NO.  HAMLET  CATE 

GORY 

FAMILIES  LAND HOLDINGS 

DRY         WET 

BPL FAMILIES  FAMILY MEMBERS  REMARKS 
01  RAVIVARIPODU  OC  363  211.97  42.10  338  1443  Larger land holdings are yet to be givern to the KSEZ the rest of the PAFs are Small  and  Marginal Farmers 
                 

Table VI                                      THAMMAVARAM -BC  CLUSTER – Kakinada Rural Mandal 

SL NO.  HAMLET  CATE 

GORY 

FAMILIES  LAND HOLDINGS 

DRY         WET 

BPL FAMILIES  FAMILY MEMBERS  REMARKS 
01  POLAVARAM  BC  173  2.48  5.5  173  640  The entire hamlet belongs to fishermen community 
                 

   

 Findings  

            The author and his team of volunteers witnessed the hither to heard, un   known menaces  rampant in the area. Social evils parade unhindered adding to the already piled up loads of under development  or ill development.   It is  no easy task  for the innocent illiterate masses to know and accept for any development initiatives of the government.       

 Illiteracy [more rampant among the elders and more so in women], Child labour and more pre dominantly among the girls, Child Marriages, Marriages among the nearest cousins [‘Menarikams’[16]] were rampant in almost  all the hamlets at large. 

  • substantial number of farmers had very less land holdings but for very few farmers who had more than a hectare. Some of the landlords who had barren land holdings which  cost very less were opportunistic in selling their lands for an attractive sum of Rs.3 Lakhs.

 Nurseries of ‘casuarina’ yield a very good ransom for even the marginal farmer or lease owner sufficient for the entire year in some cases.  People from far off places even from other states like the neighbouring Orissa peep into these interior and notorious hamlets to carry away loads of casuarina and eucalyptus  saplings.  Even the traders and brokers earn a lot in the small trade of casuarina nursery. 

 The peasants claim that their customary agricultural operations contribute for the environmental protection as most of them grow casuarinas and the woods are grown for at least 4 or 5 years.  The woods of casuarinas and the Eucalyptus are exported to so many places in side and out side the state.  Through the products they had been supplying raw material for paper mills of nearby places. 

 There were allegations that the Government as well as the KSEZ had failed in organizing special awareness generation sessions for the villagers to explain them about the policy of the government and the modus operandi of taking over by the KSEZ.  It was only after the new Co ordinator, KSEZ who was instrumental in operationalizing the NFCL as a Vice President, took over charge a few days earlier to the survey, there were some direct negotiations by the KSEZ with even the poor peasants.  His initiative paved the way to avoid the confusion prevailing in the minds of the project affected area  and the fact that the lands are being taken over as part of the development initiative to constitute SEZs and he had  well spread out side. 

 It is a common scene to locate most of laborers, though not at work and  the  peasants of even a moderately rich status at work,  clad in loin cloth on their body at their waists to expose the stigmatic un civilized culture. 

 Access to medical care and even medicinal availability can only be had for the poor village folks at   distant places.  Minimum medicare  is only available at least 8 or 10 km away.  They need to strain for hours due to lack of transport facilities always when they have some trouble without imminent danger of perish.  

 They should inevitably depend upon the quacks in the name of Privat Medical Practitioners as  ‘doctors’ endangering their health and even risking their life at times.  

Women are not allowed to go for work out side their homes in the upper caste families as a customary caste  practice; they need to suffer silently even if the poverty curse them and would force them to fast but were  not allowed to go for some work to get rid of the perils of poverty. 

 Migration for work is not so common among these villagers as most of them idle at the village temples and other centers of gossip and group discussions during the local un-season though the ‘lethargy’ would lead them deep into indebtedness.  Some semi learned say that the country at large is indebted and why should any village folk fear to get indebted. 

 No equal pay for equal work –for the women.  Though women work equal hours and work well at par with the men they are less paid than that of men.  The enforcing machinery seem to have been indifferent to wards such inequality and enforcement of labour laws.  

  Rampancy   of girl child labour is more among the lower caste and it was evident through  large number of adolescent girl child labor wearing ‘half sarees’ are   seen among groups of women labourers flocking together for work and earn for their families. 

    The agony of the villagers, as expressed in their words, was that their elected representatives are of the exploitative category for the reason that they did not come to their rescue as they were actually at trouble. 

 They alleged that their MLA, Kakinada  MP and the Kakinada MLA  had a conspiracy by which their own  MLA’s village and the Kakinada MLA’s area were left out of the Notified area. 

 In effect the KSEZ had come to their area like that of the recent but unknown ‘Tsunami ‘ into their lives , they opined.  There had also been a mis-nomer spread all over these hamlets that the SEZ would start real estate business with the lands taken over by it as the ONGC had withdrawn  from the KSEZ. 

 Their worry seem to get magnified when they compare and imagine a place where they would be displaced to, where they might not have scope for helping hands they had now at this place; The people would readily come forward to extend the maximum possible help and the policy had been give and take rather than that of the materialistic concrete jungles where people do not even care to know their neighbours; and  that they might suffer a lot without such helping hands.  In effect they were not inclined to go away from their native places. 

 The ‘Mahalakshmi’ of Ravivaripodu:  According to Sri Bavisetti,  the forefathers of Bavisetti,  happened to  visit the place in search of “podus”the roots of plants  yielding color to be extracted for the dyeing industry situated at Uppada – the Mahalakshmi had followed and had got settled along with them as the availability of the podus was so good at that time. The Powerful Goddess had been blessing the ‘podu’ people for the last so many eras.  They were accustomed  to offer prayers to her who would in turn give them plenty and resourceful with her blessings ! The Goddess had not only been sacred for the ‘Ravi’ people but many a villager and even the passer by were blessed and without the blessings of Her nothing had been materialized there.  She was actually located at the north- east corner place just outside the present place of the temple that was taken and installed at the new and the present place during the recent renovation by the villagers.  

 The Goddess, alike any other country Goddess visualized as a very big sitting posture with four arms, wearing ‘Trishul’ and ‘Kripan’ in one set of  hands; and ‘Agni’ and a blessing hand in the other; while a leg ‘crushes’ the ‘Rakshasa’ and the other lies beneath the lap. The smiling Goddess sits at the back of her ‘vahan’, the Lion. 

   She had been offered prayers at the beginning of the day and specially as of mark of inaugurating any work by all the villagers in common.  She resembled that of Goddess Durga Bhavani but for the name Mahalakshmi !Oh ! The villagers too might know the holy verses of the learned scholars of Sanskrit and the ‘Puranethihasa’ that any country Goddess,  irrespective of the nomenclature viz., ‘Nookalamma’, ‘Poleramma’, ‘Ankamma’ or ‘Ankalamma’ ,’Ganganamma’, Pydamma’, Gantalamma’,’Maremma’, ’Peddintlamma’ , ‘Peddamma’ …it was nothing but Goddess Mahalakshmi. 

     It was Goddess Mahalakshmi, who gets visualized and prayed by the countrymen.  The goddess ‘inter alia’ accepts even  the       ‘ Bali’ or sacrifice of cocks and goats and at the front yard the heads of the ‘offered’ cocks were seen garlanded /stranded to the tree. Very often,  Her presence could be evinced through the revelations of some pious women in the villages when she comes in ‘poonakam’ to convey her message which shall be performed by the villagers. The researchers do not know as to what had been conveyed actually by the Mahalakshmi but for the Poonakam witnessed at Bandipeta during the Survey.  Let the Goddess bless the research team and the SEZ ! 

  Superstitions in the form of revelations by the ‘so called’ pious and chaste women called ‘poonakams’ could be witnessed to mark the psychological and un -scientific aberrations of the innocent and un educated village folks. 

 Recommendations in Brief………..  

  • The KSEZ needs to organize awareness generation events for the peasants so the villagers get understand and would certainly cooperate for the development initiative of the government and the KSEZ.

 The Government and may also the KSEZ will have to plan and take up some livelihood promotion initiatives for the project affected, including the under educated and un educated youth so also the poor peasants of productive age. 

 A special vocational training center at the community center, is desirable even to help the industries to come, to be started to cater to the need based vocational training needs of the youth and also the industrial establishments to crop up in the near future. 

 A Primary Health Center may be started at each of the hamlets to cater to the medical needs of the poor peasants affected by the project. 

 Certain women empowerment initiatives are also desirable such as counseling them for developing work culture by involving them in certain livelihood development programmes which may also lead to curing of social evils like child marriages etc., 

 Special packages for awareness generation against restraint of child marriages, marriages among the near relatives and child labour with special reference to girl child labour may be initiated. compulsory primary education and upper primary education with vocational training courses AND a home for the aged may be  curative schemes to be launched as part of the rehabilitation packages. 

Basic Amenities to be provided as per the RR Package[17] 

   Shifting community to be settled ‘en masse’ in a compact area to protect their socio cultural relations. 

Basic amenities and infrastructural facilities proposed to be provided at the proposed KSEZ village by the author and accepted in principle by the KSEZ authorities     

  • DRINKING WATER
  • INTERNAL ROADS
  • DRAINAGE
  • ELECTRICITY
  • PRIMARY SCHOOL BUILDING
  • PLAY GROUND
  • COMMUNITY CENTRE AND
  • ACCESS TO ROAD FACILITY.

                  Implementation of the rehabilitation package so far as the displacement process from most of the clusters where people belonging to the lower rungs of the society were inhabited have been evacuated through the active initiation of the make belief version of some of the greedy leaders in the hamlets.  But, implementation of the later part of the promise i.e., providing employment to each member in the family whose land has been taken over is still awaited even after the lapse of three years time. [18]                                           However, as there was no valid agreement entered into between the KSEZ and the respective PAF losing land providing of employment remains an unfulfilled promise. On the other hand the KSEZ, even after 4-5 years of its inception could not get even a single project in the Multi product port based operations commenced. On the other hand the KSEZ, even after 4-5 years of its inception could not get even a single project in the Multi product Port Based [KSEZ] commenced. Therefore, the envisioned development in the area remained a myth as the small, marginal and poor peasants along with the landless poor Project Affected Families remained  hapless  without proper rehabilitation after the displacement. 

 


 

[1] His wife was the elected representative of the village. Though the reservation policy initiated by the AP State Government in  the local bodies  is aimed at to ultimately solve the  women problems and bring in equality with men, the reality is that the women representatives especially of the weaker sections of the society have to inevitably depend upon their ‘hubby- gods’ who accompany and or often substitute the women representatives of the people even in the official meetings. 

[2] Village elder and the key person having rights perspective and  intellectual bent of mind 

[3] Rehabilitation and Resettlement (R&R Policy for Government of Andhra Pradesh, GO Ms.No.68 dated 8th April, 2005 requires to provide a broad canvas for an effective dialogue between the Project Affected Families[PAFs] and the Project Displaced and the government. 

[4] Rehabilitation and Resettlement (R&R Policy for Government of Andhra Pradesh, GO Ms.No.68 dated 8th April, 2005 

[5] Rehabilitation and Resettlement (R&R Policy for Government of Andhra Pradesh, GO Ms.No.68 dated 8th April, 2005. 

[6] The entire village /hamlet is predominantly inhabited by people belonging to a particular case categorized under Other Backward Classes –comprising of mostly illiterate masses depending upon cattle/shepherd rearing, agricultural  and other petty nursery  operations 

[7] Predominently inhabited by upper caste people where the women are not accustomed to go out for work as a caste custom however poor they are 

[8] The upper caste segment where most of the youth got educated and the conditions of the women folk are same as that of the other hamlet 

[9] The village where several land lords small farmers and other caste Hindus live and a good number of farmers grow nurseries of ‘casurina’ ‘eucalyptus’ and supply the same to the neighbouring states of Andhra Pradesh  during the season and pull on with the seasonal earnings through out the year 

[10] The hamlet gives a developed look to a certain extent as the children have immediate access to primary education in the hamlet 

[11] The small hamlet had very good households. Some of the inhabitants own rice mills to cater to the needs of the local and surrounding villages 

[12] Rehabilitation and Resettlement (R&R Policy for Government of Andhra Pradesh, GO Ms.No.68 dated 8th April, 2005. 

[13]  The tables only depict only very brief particulars. and the author may be consulted for other details 

The survey has been conducted with the help of PG students who were only patient enough to collect the data for the first day  

[14] Very brief and relevant  particulars are depicted and the author may be consulted for other details 

[15] It was incidental that most of the survey volunteers belong to SC community and could familiarize fast with the villagers and the data  collection work could be completed without much difficulty at the SC colonies. 

[16] The Hindu law prohibits ‘Sapinda’  relationship but the local custom prevails over the law especially among the country folk  who generally do not allow their girls sent to distant places and prefer to give them in marriage within the village if possible. 

[17] Rehabilitation and Resettlement (R&R Policy for Government of Andhra Pradesh, GO Ms.No.68 dated 8th April, 2005. 

[18] See Deccan Chronicle, February 10th, 2010- ‘…..Several of the 600 families rehabilitated in Moolapeta[KSEZ village] from various places like Srirampuram, Ramaraghavapuram, Ravivaripodu and other areas [Matha vari palem, Dadalapalem, Karrivari palem, Kollavari palem, Katurivari Palem etc.,] complain that the authorities did not provide the complete rehabilitation package, including provision of employment to adults, in the families of the displaced. Some complain that the compensation money paid three years ago was spent on their domestic needs as they do not have permanent employment after displacement from their respective villages due to land acquisition. 

…………..Sri  V.V. Ramakrishna, KSEZ special officer (appointed by the revenue authorities), said that the process of rehabilitation was speeded up and would be completed soon.’

LOKPAL BILL – FROM MILESTONE TO MIRAGE.

 BY:- G.L.VERMA

  Concept of Lokpal as an  institution to probe corruption charges against top echelons was first mooted in year 1960 when K.M.Munshi,         (a member of Constituent Assembly) advocated  for conferring the status of  legal independence  with powers of a court.  M.C.Setalvad, a veteran legal luminary joined the issue and vociferously demanded for setting up the institution on the pattern of Ombudsman as prevalent in most of the Scandinavian countries. In year 1966 Administrative Reforms Commission headed by Santhanam also recommended in its favour.  It is indeed a matter of concern that inspite of the growing number of corruption cases involving high-ups, the Bill on this august institution could not be enacted so far though presented before Parliament more than 8 times so far. This only reflects that successive governments have all along been indifferent to the growing corruption though they paid lip-service crying hoarse outwardly. Though the Bill for setting up Lokpal was to be introduced in ensuing winter session of Lok Sabha, Government has dragged feet and shelved the matter as it had been doing for last several decades.  It appears corruption is no longer an issue for the country’s ruling class. 

          Looking at the present scenario, there is no independent institution to probe corruption cases in the country. The agencies like CBI and CVC are not independent like Election Commission or CAG and they work under the Government as any other ministry or department like Health, PWD, Education or any other department. It is not a Constitutional body nor any independence is conferred upon it.  Even these two agencies are so heavily overburdened that they can not take up every case of corruption for investigation. Moreover, CVC’s jurisdiction is all the more confined and restricted only to the officers of All India Services only. So far as C.A.G. is concerned, it is no doubt a Constitutional Body  but its primary job is to conduct an audit and present report to the Parliament. It has nothing to do with framing of criminal cases.  Thus there is no mechanism in the country which can be invoked to seek investigation into corruption cases with an aim to combat corruption involving high-level persons occupying constitutional offices. 

          In a short span of past few months, country saw how scams after scams stumbled out from the cupboard of the Government departments. Take for instance, 2-G Spectrum scam, CWG-2010 scam, Adarsh scam, Mining scam, Satyam scam, Ketan Parekh scam, Barak missile scam, Oil for food scam, Broad-casting rights, Games Village Flats scam, IPL scam and host of others are just tips of iceberg pointing to scam in almost every project that Government undertakes. It is intriguing that though the financial implication of these scams run into several  lacs of  crores, not a single person has been convicted. On the contrary, the bureaucrats under cloud were elevated to higher assignment. More than two lac crores of rupees is anticipated to have been stashed away in foreign banks without any check. Loyalty and not integrity has become the sole criteria for reshuffling of bureaucrats. More than a dozen whistle blowers and  RTI Activists have been murdered. Raising voice against corruption is being gagged.  Corruption is assuming monstrous proportion and there is total lack of will to fight it out.  It is under such a scenario that demand for setting up an independent institution like Lokpal has assumed more significance than it had assumed in fifty years ago.

                   The institution of Lokpal is, in fact, akin to the Ombudsman system prevalent in large number of Scandinavian and European countries. In U.K. it is known as “Parliamentary Commissioner” and possesses powers and jurisdiction to  look into complaints against Members of Parliament. In Sweden and Finland, the has the power of court to prosecute erring public servants, whereas in Denmark, he can only order prosecution. In our country, Ombudsman has been introduced in various sectors like Banking and Insurance etc. But the constitutional offices and high political offices have been left excluded despite the fact that maximum corruption is reported from such offices. The Lokpal Bill 1998 proposed to confer the power of a civil court for summoning and enforcing attendance. Under this Bill, Lokpal’s duty was to submit report to the Government and latter was bound to furnish Action Taken Report on that report before Parliament.         

          Under the proposed Lokpal Bill, the institution of Lokpal shall comprise 3 members including a Chairman who shall be a sitting or retired Chief Justice of India or former Judge of the Supreme Court and two members to be chosen from among sitting or retired judges of the Supreme Court or sitting or retired Chief Justices of High Court. These members shall be appointed on the recommendation of a Committee headed by the Vice President and Prime Minister, Lok Sabha Speaker, Minister of Home, Minister of Law and leaders of the opposition in Lok Sabha and Rajya Sabha. They shall be appointed for 3 years or until they attain the age of 70 years whichever is earlier. Bill empowers the Lokpal to punish with imprisonment and/or a fine those guilty of making false or malafide complaints. The jurisdiction of Lokpal under the re-drafted Lokpal Bill shall extend to the investigation of corruption cases against the Prime Minister, his ministers, colleagues as well as MPs, members of defence services under the purview of the Lokpal. However, jurisdiction of Lokpal shall not include any allegation against the Prime Minister in relation to his functions concerning national security, foreign affairs and public order. Thus Prime Minister shall continue to enjoy immunity in all sorts of matters falling within the ambit of national security and public order. Further, the Bill excludes the constitutional offices like President, Vice President, Speaker, Dy. Speaker, Dy. Chairman Rajya Sabha, sitting judges of Supreme Court and High Court, Comptroller and Auditor General, Election Commission, Union Public Service Commission who shall not be answerable to Lokpal nor their acts shall be called into question.

         The Lokpal shall look into the complaints relating to corruption only and its jurisdiction is not to extend to redressal of grievances. The institution of Lokpal is not envisaged as mechanism to seek redressal of grievances. Moreover, it shall have no power to issue any order, writ or direction to any authority except seeking assistance in gathering facts relating to complaint on corruption. Lokpal shall look into corruption related complaints only and it shall have no suo moto powers to assume to itself the jurisdiction to inquire into any case against which there is no formal complaint. It is debatable why suo moto power should not be granted to Lokpal especially when it is envisaged to act as watch-dog against corruption. Absence of any judicial power including power to issue summon and punish for contempt for itself are summum bonum for the institution of Lokpal to succeed.   

          The serious infirmity from which the proposed Lokpal Bill suffers relates to its dependence on Government for mechanism to investigate into complaints. Another aspect relates to the  eligibility of a complainant.          It is proposed that any person other than a public servant can make a complaint.   Debarring a public servant from making a complaint is contrary to the Whistle Blower Bill which too has been kept limbo by the Government. It can not be denied that a public servant might be well conversant with the fraud or malpractice than a layman in the society. To ensure checks and balances, measures could be introduced to ensure that lodging a complaint should not be intended merely to harass or defame a public functionary. For that purpose provision can be introduced under which malicious complaints can boomerang on the complainant just as we have already provisions for registration of case for lodging false FIR. But denying a public servant from lodging complaint even if there is substance in it would only defeat the very purpose of wedging war against corruption.      It makes no logical a proposal to debar a public servant from making complaint in whose case he is bound to be responsible for the statements and facts. Another infirmity is with regard to lack of power of a civil court. It is not made clear whether the Lokpal shall have  power to  punish for its own contempt. In the absence of any such power including the power to summon and enforce presence of the persons concerned, the Lokpal Bill is unlikely to make any headway in fight against corruption.  We have the experience of Lokayuktas which were set up by governments of as many as 17 states. The experience of working of Lokayuktas in states has not been satisfactory. The institute of Lokayukta has not been able to make any dent in malpractices of state government’s functionaries. The main reason behind failure of Lokayuktas is that no judicial power whatsoever was conferred upon them. Neither Chief Minister nor his ministers or other officers could be reined by them. For instance, in Karanataka, between 1986 and 2000, the  Lokayukta ordered investigation in 2840 cases of which 1677 were charge sheeted but only 6 per cent ended in conviction. The state Lokayukta came across with with the complaint relating to 5 lakh tones of illegal iron ore worth Rs 200 crores. This was the issue which Karnataka Lokayukta Justice Hegde was fighting for and was stonewalled at every stage. In Uttar Pradesh, Lokayukta dealt with vulgar display of wealth by Chief Minister Mayawati. Justice N.K.Mehrotra took over as Lokayukta. But he too failed because he had to rely on the state authorities for investigations and did not have his own mechanism to supervise or monitor.

          The institute of Lokayukta has failed mainly because of absence of any Central law with uniformity conferring any judicial powers on Lokayukta and their dependence on the State Governments for investigating into the complaints. If the Government really intends to fight against corruption, the proposed Lokpal Bill must contain abundant provisions to ensure independence, judicial powers to issue summon, to enforce attendance and punish for contempt of itself in addition to a specified mechanism to investigate into complaints without depending upon the government. In the absence of such provisions and legal status,  Lokpal as an institution shall meet the same fate as Lokayuktas in several states have already met. 

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