Child’s Actual Age Matters under Indian Law

As per Indian law, a minor cannot be convicted in the same manner as an adult. Also, a child can never be imprisoned or given a death sentence.

Indian Law: Juvenile Justice Act Governs Juveniles and Minors

As per Indian law, the Juvenile Justice (Care and Protection of Children) Act, defines a juvenile as a person below the age of 18 years. The Act intends to provide care and protection to juveniles, who violate laws in India. The Act intends to settle the issues in the best interest of children and not with an intention to punish them under criminal law. Indian Laws on Child welfare According to Indian law, estimating a child’s actual age is of utmost importance for forensic practitioners, particularly when an accused claims to be juvenile before the court. Typically, the court shall take necessary evidence to determine the actual age so that there is no vagueness around it. The court shall also record the forensic findings so that if it is proved that the accused was a juvenile on the day of commission of the offence, the case shall be forwarded to the Juvenile Justice Board.

Indian law pertaining to the commission of crimes by juveniles stipulates that an offence commissioned by a child, below the age of 7 years, is not punishable. Further, the age of criminal responsibility is raised to 12 years, in case the child has not attained the ability to understand the consequences of his/her action.

If a minor is taken away by someone other than the parent/guardian without their knowledge or consent, the criminal law in India will hold it as an offence of kidnapping or abduction. The age limit is 16 years for boys and 18 years for girls.

Indian law recognizes a child as a competent witness, except for a child who is of 6 years or below. Indian law provides that evidence from a competent child witness; can form the basis of conviction. Section 118, of the Evidence Act provides that credibility of such a child witness depends on his ability to understand the answers, reliability, competency and circumstances of the case.

Power of Pardon in India

 

By Aastha Suman, 4th year, WB NUJS, Kolkata 

 

“I have always found that mercy bears richer fruits than strict justice.”

                                                               –Abraham Lincoln, 16th U.S President

Mercy is God’s grace, a gift to the mankind which gives all an equal chance to mend ways and to correct a deviant behaviour. This might be why every civilised state has had a provision to pardon offenders in their criminal justice system to be exercised as an act of grace and humanity in proper cases. Without such a power of clemency, to be exercised by some functionary of the government, a country would be most imperfect and deficient in its political morality.

[i] This rationale is further enunciated by Justice Holmes of US Supreme Court where he points out that pardon as of today is not an act of grace but is a constitutional scheme which when granted is determination of the ultimate authority that the public welfare will be served by inflicting less than what the judgement fixed.

[ii]The significance and need for clemency has been a source of debate from decades. Montesquieu believed in significance of clemency in the monarchical system. Beccaria advocated total abolition of this institution and keeping this in view this provision was dropped for few years in France during the revolution of 1789 while the English scholars Feilding, Eden and Colquhoun concentrated their attacks on the abuses evident in the exercising of the pardoning power. Immanuel Kant and Filangeiri were against the very existence of such a provision.The power of pardon could be thought of as an archaic survivor of a bygone era where there existed an omnipotent ruler who was vested with powers to bestow his benevolence once in a while totally based on his whims and fancies.

[iii] Even today the reflections of the past can be seen in the provisions of our constitution. The constitution vests in the president and the governors of various states with the power to grant reprieves and pardons through its articles 72 and 161 respectively in addition to the commutation of sentences which may be also appropriated by the government under the provisions of CrPC and IPC.The presidential power acts as a safety valve in exceptional cases where the legal system fails to deliver a morally or politically unacceptable result and hence secures public welfare.

[iv] Also, pardon has become virtually the only way that a sentence, once final, can be reconsidered and, in appropriate cases, reduced. A pardon case provides a unique birds-eye view of how the criminal justice system is being administered, revealing where particular laws or enforcement policies are overly harsh, and where prosecutorial discretion is being unwisely exercised. A criminal justice system may be harsh and inflexible in which pardon power is a major boon for offenders who could have their convictions reviewed, prison sentences reduced, and rights of citizenship restored.Finally, apart from its role in encouraging law reform, pardon can tell good news about the justice system, by recognizing and rewarding criminal justice success stories where the convict’s atonement and changed ways are rewarded by pardon. After the court-imposed sentence has been served, pardon plays an important role in offender re-entry and reintegration by relieving legal disabilities and certifying good character .Also, in a way the relevance of pardon seems vindicated when we look at the sheer size of the prison population and need to reduce such a strain. Furthermore, clemency is a useful tool for prison administrators to reward good conduct and accomplishments by prisoners.The power of pardon has sometimes been regarded as an unprincipled and unwelcome intrusion in the law’s enlightened process as it leads to an overlap between the functions of judiciary and executive. Also, the significance of this power is on a decline because penal codes and other laws are acting as support to the convicts and need for a mercy petition is becoming unnecessary. For instance, clemency for rehabilitation is unimportant as statutory or judicial provisions for the same have come up. Similarly, the courts consider mental incapacity or act in self-defence before giving a verdict. Also, there is individualisation of cases and there are provisions for numerous appeals in which presidential clemency or Governors pardon have a minimum role to play. Furthermore, it could be argued that the courts use capital punishment sparsely and in the rarest of rare case and so scope of an executive interference is limited.The legitimacy of the president’s use of power depends importantly on how accessible it is and if the poor and the illiterate are able to utilise it as much as the rich and the powerful. Unfortunately, in India the illiterate are either unaware of the pardon power or are incapable of even drafting a mercy petition. Such convicts with no political connections are unable to influence or mobilise clemency in their favour.From the time of inclusion of executive clemency in the constitution it has been subjected to various controversies mainly due to the vague language of articles 72 and 161 as well as its archaic origin. The question of extent of power of pardon of punishment, the question of who should be granted pardon and what procedure to be followed in granting pardon by the executive have been a matter of debate for decades. Furthermore, the granting of pardons, reprieves, and manifestations of the executive clemency power in general have been variously described as unilateral, notoriously non-reciprocal, virtually unassailable, absolute and perhaps the most imperial of presidential powers.

[v] The large political influence on the pardoning power has further marred it with controversies. This nature of the pardoning power has lead to various petitions asking for judicial review of the same. To start with, is there a conflict between judicial power to pass a punishment authorised by law and the pardoning power? Does the pardoning power of the executive undermine the judicial decisions? Only when we have answers to these questions will we be able to evaluate the role of judiciary in regulating the pardoning power which is the main point of discussion in the following research.

 NEED OF JUDICIAL REVIEW

 Article 72 and 161 vest in the executive the humane and vast jurisdictiction to remit, repreive, respite, commute and pardon criminals on whom judicial sentences may have been imposed. The constitutional provisions implicitly allow for a two-tier process of seeking pardon, first from the state governor and then from the President at the center. It is clear from the constitution that like other powers of the president and the governor, the power to pardon is also to be exercised on the advice of council of ministers which means the president yet again acts out as a rubber stamp fulfilling a prerogative as under the constitution.

[vi]However, the power of pardon even if it is being wielded by the highest executive authority needs to be exercised in good faith, with intelligent and informed care and honesty for public welfare.[vii] Furthermore, the power to grant pardon is coupled with the duty to act fairly and reasonably. All public power, including constitution power, should never be exercised arbitrarily or malafide and ordinarily, guidelines for fair and equal execution are guarantors of the valid play of powers. The Supreme Court has expressed the need to make rules for the guidance in exercise of pardoning power while keeping a large residuary power to meet any special circumstances or sudden developments.

[viii] However, later the same court held that Article 72 has a wide ambit and is indicative enough that it coupled with previous case laws are sufficient and that no precise or clearly defined guidelines are required. Thus, the power of pardon remains unbridled with wide discretion provided to the executive. Moreover, from times immemorial the power of pardon has not so much been an act of grace as a tool of monetary and political aggrandizement. From the outset, the pardon was abused for personal gain. The systematic abuse of the pardoning power and the arbitrary and irrelevant reasons supporting issuance is nothing new to the system.

[ix] The Supreme Court observed in 1976 that a President gripped by communal frenzy and directing commutation on religious or community consideration alone, requires to be kept in check. As a remedy, it was thought essential to vest in the courts the power to review such decisions.The politicisation of clemency powers is inevitable. For instance, the case of Murugan, Santhan and Arivu (sentenced to death for their part in the conspiracy to kill former Prime Minister and leader of the Congress Party Rajiv Gandhi) as also Mohammed Afzal Guru (sentenced to death for conspiracy in the attack on the Indian Parliament). An instance of gross violation of the governor’s power to pardon was seen in Haryana which involved the murder of Jasbir Singh in which the prime accused Sat prakash and Sabir were convicted and sentenced to life imprisonment and five years rigorous imprisonment by the Supreme Court. But three months later, the governor seemed to have miraculously pardoned both the convicts. Similar, pardons were granted to prime accused of Krishnan Kumar murder case and Jay Prakash attempt to murder case. In the first case BJP activists Jain and Bhumla were convicted by a Supreme Court bench of Justices G.T.Nanavati and V.N.Khare. However, almost immediately the governor of Haryana pardoned both. Luckily, in these cases the court’s power of judicial review saved the day where the Punjab and Haryana High court observed that there seems to be a lack of application of mind on the part of governor which is evident from the haste to grant pardon. Satpal and Ajay Chautala (Member of parliament) were the prime accused in the latter case.Furthermore, the absence of transparency in the clemency process is a serious concern, especially since the executive may be subject to pressures extraneous to the case. It is often the case that reasons for accepting or rejecting a mercy petition is not given. In the case of Padfeild and Others v. Minister of Agriculture Fisheries and Food and others

[x]  it was stated that in case the executive gives no reasons for a decision the judiciary is at liberty to come to the conclusion that he had no good reason for reaching that concusion. The same was upheld in Muhammad Sharif v. Federation of Pakistan

[xi] and in Vamuzzo v. Union of India

[xii] which shows the importance of disclosing the basis for a decision on pardoning power.  The power of judicial review means that arbitrary executive actions can be corrected by an alert Supreme Court.

Another reason why the Supreme Court should intervene in the exercise of executive clemency is due to the delay in decision-making on mercy petitions by either the President or Governors. In both K.P. Mohammed v. State of Kerala

[xiii] and Sher Singh and Ors. v. State of Punjab

,[xiv]C.J Chandrachud led the Supreme Court benches in suggesting that the state accept a self-imposed rule and decide on mercy petitions within three months. In response to delays caused by the executive considering mercy petitions the Court commuted the sentences of the condemned prisoners in both Madhu Mehta v. Union of India and Ors

[xv]. and Daya Singh v. Union of India and ors

[xvi]as also in Shivaji Jaising Babar v. State of Maharashtra

 [xvii]It can be said that on an average, four to five years are taken for disposal of a mercy petition. Those who have been sentenced for the death penalty have to wait for an agonisingly long time- before the High Courts confirm such a sentence of the trial court, before the Supreme Court disposes off related Special Leave Petitions, and the President, Governor or the concerned governments grapple with the issues of pardon and commutation of the sentence. Such delays add immeasurably to the inhumanity of capital punishment. Although, in the year 1988 a constitutional bench of the Supreme Court ruled that an unduly long delay in execution of the sentence of death would entitle an approach to the Court, but that only delay after the conclusion of the judicial process would be relevant, and that the period could not be fixed This ruling effectively moved the focus of the question of delay away from the judicial process to that of the process of executive clemency. However, this issue remains unresolved till date with increasing number of delays in processing and passing of mercy petitions. For instance in the year 2006, there were 23 cases involving 44 condemned prisoners pending for disposal before the president of India. Out of which 2 cases are pending for less than a year, 8 cases for one to three years and 13 cases over three years. 22 petitions filed before the President of India have been processed in the Ministry of Home Affairs and submitted to the Hon`ble President of India for taking a decision on the petitions. One petition is being processed in the Ministry of Home Affairs. Some of the cases were pending before the president from 1998.

 SUPREME COURT ON PARDON POWER

One of the earliest case of significance where a clemency petition was brought under judicial review was G. Krishta Goud and J. Bhoomaiah v. State of Andhra Pradesh and Ors, the Court rejected the claim, observing that with respect to actions of the President, the Court “makes an almost extreme presumption in favour of bona fide exercise” and that the petitioners had shown no reason for the court to consider the rejection of their application “as motivated by malignity or degraded by abuse of power.” Even while rejecting the writ petition, the Court however sounded a note of caution and stated that the Court would intervene where there was “absolute, arbitrary, law-unto-themselves malafide execution of public power”.

These parameters for judicial review were reiterated again in Maru Ram v. Union of India and others where the Constitutional Bench further asserted that the Courts would intervene in cases where political vendetta or party favouritism was evident or where capricious and irrelevant criteria like religion, caste and race had affected the decision-making process. Such malafide and extraneous factors vitiate the exercise of pardon power and should be checked through judiciary.

Then, was the landmark case of Kehar Singh in which the challenge was to the president’s order declining clemency to one of the accused in the Indira Gandhi assassination case. The Supreme Court dismissed an appeal by special leave filed by Kehar Singh after the president declined to go into the merits of the case decided by the Supreme Court which was supposedly erroneous and also did not permit an oral presentation of cases before it. The court held that the area of the President’s power under Article 72 falls squarely within the judicial domain and can be examined by the court by way of judicial review. (The doubt existed as Article 361 of the constitution states that the president is not answerable to any court in the exercise of his powers.)  The Court can never question or ask for reasons why a mercy petition was rejected. However, if the reasons are provided by the president in his order and these are held to be irrelevant, the court could interfere. The court has also admitted judicial review on some specific grounds –

  1. To determine the scope of Articles 72 and 161.
  2. The court can interfere where the president’s exercise of power is vitiated by self-denial on erroneous appreciation of the full amplitude of power conferred by Art 72, e.g., where the president rejected a mercy petition on the erroneous ground that he could not go behind the final decision of the highest court of the land or where the decision is irrelevant, discriminatory or malafide.
  3. In case of inordinate delay in processing the mercy petitions in case of death sentences, it could be substituted to life imprisonment.

The Supreme Court admitted a writ petition in Kuljeet Singh v. Lt. Governor, Delhi and anr. challenging the arbitrariness of the clemency powers of the President and expressed need for the president to be presented with relavant facts and made aware of the existing circumstances. In Swarn Singh vs. State of UP,

[xviii] the Governor of Uttar Pradesh remitted the whole of the life sentence of an MLA of the State Assembly who had been convicted of the offence of murder within a period of less than two years of his conviction. The Supreme Court found that Governor was not posted with material facts such as the involvement of the accused in 5 other criminal cases, his unsatisfactory conduct in prison and the Governor’s previous rejection of his clemency petition in regard to the same case. Hence, the Supreme Court interdicted the order, acknowledging that though it had no power to touch the order passed by the Governor, if such power was applied arbitrarily, malafide and in absolute disregard of the finer cannons of constitutionalism, such an order cannot get the approval of law.

 Similarly, in the case of Satpal v. State of Haryana

[xix], it was held that the constitutional power given to the Governor under article 161 if found to be exercised without advise by Government or if the jurisdiction is transgressed or if it is established that the order was passed without application of mind or if the order is malafide or has been passed on some extraneous considerations like political loyalty, religion, caste etc, then the court has full right to interfere. ’ The Supreme Court quashed an order of the Governor pardoning a person convicted of murder on the ground that the Governor had not been advised properly with all the relevant materials. The Court spelt out specifically the considerations that need to be taken account of while exercising the power of pardon, namely, the period of sentence in fact undergone by the said convict as well as his conduct and behavior while he underwent the sentence. The Court held that not being aware of such material facts would tend to make an order of granting pardon arbitrary and irrational

Finally, in the recent case of Epuru Sudhakar and anr vs. Government of Andhra Pradesh the court laid clear grounds on which the pardoning power may be challenged. It was held that with clear separation of powers emphasised in the Constitution of India regarding pardons, the scope for judicial review of executive action is limited. Where constitutional powers of clemency are involved, the extent of judicial review is limited further to extreme cases. The Supreme Court referred to the large number of petitions challenging the grant of pardon or remission to prisoners, there are no cases in which the Supreme Court has quashed the decision of the President/Governor granting clemency.

The Court set aside a remission granted by the Governor of Andhra Pradesh on the ground that irrelevant and extraneous materials had entered into the decision making. The Report of the District Probation Officer which was one of the materials on which the decision was based, highlighted the fact that the prisoner was a ‘Good Congress Worker’ and that he had been defeated due to political conspiracy. Similarly the Report of the Superintendent of Police reached a conclusion diametrically opposite to the one it had reached before elections were conducted. Thus in these judgments concerning the Governor’s exercise of pardon, the Court seems to have widened the grounds for judicial review by enumerating specific grounds on which the grant of pardon can be considered arbitrary. It was also held that the non-consideration of relevant factors such as length of the sentence already undergone, the prisoner’s behaviour and involvement in other crimes and consideration of extraneous or irrelevant grounds such as political affiliation, religion, caste may call for judicial review.

 EXECUTIVE vs. JUDICIARY

 Each organ of the government has its own well defined separate powers and hence the legislature or the judiciary cannot interfere with the presidential power. The Executive and the Judiciary are known to have separate paths, then where is their stand in the framework of pardoning power? It is also interesting to note that there may be a conflict between judicial power to pass a sentence or make an order authorised by law and the power of pardon as exercised by the executive. However, it is the wide belief that there is no conflict between the jurisdictions. If pardon is granted before or during a trial and accepted, there is no conflict as jurisdiction of a court to try an accused as it is nothing more than its obligation to decide a matter formally brought before it for determination. And if the pardon is accepted, there is nothing for courts to determine, for pardon can be pleaded in bar to indictment; or after verdict in arrest of judgement, or after judgement in bar of execution and court in giving effect to a plea which gives effect to the law of the land.

In the case of Kehar Singh v. Union of India, it was held that the manner of consideration of the petition lies within the discretion of the President, and it is for him to decide how best he can acquaint himself with all the information that is necessary for its proper and effective disposal. It was held that it is open to the President under the Constitution to scrutinise the evidence on the record of the criminal case and come to a different conclusion from that recorded by the Court and in doing so, the President does not amend, modify or supersede the judicial record. The President acts in a wholly different plane from that in which the court acted. He acts under a constitutional power, the nature of which is entirely different from the judicial power and cannot be regarded as an extension of it.

This ostensible incongruity is explained by Sutherland J. in United States v. Benz

 [xx]which distinguishes between judicial power and executive power over sentences. To render judgement is judicial while to carry out the judgement is executive. To cut short a sentence by an act of clemency is an exercise of executive power which abridges the enforcement of the judgement, but does not alter it qua a judgement.

It is rather interesting that there have been cases when the judiciary in itself has suggested a recourse to the power of pardon through there judgements which is a clear indicative of the coexistence of judiciary and executive while exercising the power of pardon. Thus, in Raj Nath v. State of Assam,

[xxi] while two judges took opposing views on whether to accept the claims that the accused was a juvenile and commute the sentence, the third (and therefore decisive) judge agreed to reject the petition, arguing that the accused had the remaining remedy of executive clemency. Similarly, the majority Bench in Devender Pal Singh v. State, N.C.T. of Delhi and anr. (with Krishna Mochi)

 [xxii]also relied on this safety-net when upholding the death sentence after the three judges were completely divided on questions of guilt as also of sentence.

There have been numerous instances, including every case of death penalty for which a mercy petition has been submitted while there have been a large number where the Supreme Court has been asked to interfere with the final mercy order given by the executive. It seems to be a never ending cycle with executive being appealed for mercy after court ruling and then the court door being knocked the after executive decision in the matter. However, as is evident from the various judgements of the Supreme Court the judicial review of pardoning power is inevitable.

CONCLUSIONS

Executive clemency is like the unbridled wind which blows unhindered with least interference of the judiciary and with discretionary powers to the president and the governor. The executive which is mired with its political bias has been granted to make decisions over-riding the decisions of the apex-courts of the country. Does this lead to a decision made in public interest, one which is more humane? The answer definitely is in the affirmative.

Let the provision for pardons be a ray of hope to those subject to the positivist limitations of interpretation of the law by the judges. Lon Fuller, the creator of inner morality of law clearly indicates that executive is not bound by the shackles of the black letter law and may go beyond it to include the essence of morality in it. The president and the governors of various states have the power to grant pardons, reprieves, commutations and remissions of sentences as long as it is based on certain reasons, the power of judicial review shall only be limited to the cases where the decisions was passed without application of mind or if the order is malafide or has been passed on some extraneous considerations like political loyalty, religion, caste etc. This safety valve placed in the form of judicial review is a boon in keeping a check on arbitrary decisions of the executive but it also creates a never ending tedious cycle prolonging the process of law. 

It is imperative that a person be deprived of his life and liberty by due process of law or by laws which are just, fair and reasonable. Consequently, the presidential power should also be used in accordance with the due process of law. To become so certain changes are recommended. Firstly, it is required that in the spirit of democracy, it is important that transparency be maintained in taking decisions on the mercy petitions. The president and the governors or those who indirectly exercise these powers through advice need to have objective criteria to process the petitions and the rationale behind each decision should be made clear through a speaking order. Secondly, keeping in mind the tenets of Article 14 of our constitution, the provision should be exercised with equanimity towards one and all without distinctions on the basis of gender, age, caste, community, language or geography.

In the democracy the ultimate sovereignty lies with the people and through them vests with their representatives.  Hence exercise of such power by the political executive by advising head of the state to grant pardon is legitimate.  In India the processes have enough checks and balances but never the less more caution is needed to avoid political considerations and exigencies colouring the exercise of the powers of pardon as evident from the past experiences and cases.

A time limit needs to be provided for the processing and final disposal of a mercy petition which would bring relief to the death chamber convicts. Agony of waiting to be executed traumatizes and kills the convict many more times than the actual execution. Also, the president needs an advisor who has some degree of independence from those who prosecuted the underlying criminal case; who can bring a different policy perspective and different values to bear on the matter, and whose independent political accountability can provide the president a measure of protection from public criticism.

Furthermore there should be equity before law and equal opportunity to all. For this the poor and the illiterate should be provided assistance in drafting, and pursuing their mercy petitions. Lastly and most importantly, it should be made a matter of policy that those prisoners who seem to have atoned and reformed should be pardoned and suitably rehabilitated. This shall encourage the criminal offenders to turn their lives around and start afresh. The president should use his wisdom and discretion well in order to take a just decision based on objective criteria to grant pardons.

Above all by the time the above recommendations are put into action the judicial review of pardoning power remains inevitable even if in a limited way.


[i] American jurisprudence, 2d, 5 as cited in written submissions of Soli Sorabjee as Amicus Curie in the case of Epuru Sudhakar and anr vs. Government of Andhra Pradesh AIR 2006 SC 3385.

[ii] Biddle v. Perovich [71 L. Ed. 1161 at 1163]

[iii] Love.C.Margaret, Reinventing the president’s pardoning power at  http://www.pardonlaw.com/materials/FSR.Pardon.2007.pdf last visited on 18 May 2008

[iv] Seervai H.M., Constitutional Law of India, Vol. II, fourth edn., Universal Book Traders, New Delhi, India, 1999.

[v] Kuljeet Singh v. Lt. Governor, Delhi and anr (1982) 1 SCC 11

[vi] C.J Pathak in Kehar Singh vs. Union of India (1989 SCC (1) 204) remarked that the power of pardon rests on advice of the executive which is subject to provisions of article 74(1) of the constitution.

[vii] G. Krishna Goud vs. State of Andhra Pradesh (1976) 2 SCR 73

[viii] Maru Ram v. Union of India and others [(1981) 1 SCC 107]

[ix] Ex Parte Philip Grossman (69 L. Ed. 527) approved and adopted by apex court in Kuljeet Singh v. Lt Governor of Delhi.

[x] (1968) 1 All E.R 694

[xi] PLD 1988 Lah 725

[xii] (1988) Gauhati Law Journal 468

[xiii] 1984 Supp SCC 684)

[xiv] (AIR 1983 SC 465)

[xv] (AIR 1989 SC 2299)

[xvi] (AIR 1991 SC 1548)

[xvii] AIR 1991 SC 2147

[xviii] (1998) 4 SCC 75

[xix] 2000 (5) SCC 170

[xx] [ 75 L. Ed. 354]

[xxi] AIR 2001 SC 2231

[xxii] (AIR 2003 SC 886)

Malpractices of Recruitment agencies in relation to overseas recruitment

 

 “Aaramco coordinations posted advertisement on naukri.com and indded.co.in regarding overseas recruitment. I had applied for the same on naukri.com. After applying I had received call from aaramco coordination, Bangalore to send hard copies of my CV and educational certificates Xerox which I had couriered to them. within 3 days of courier I had again received a call from them saying I have selected for the post of store keeper in shell super market, new jersey, usa (pl note I was selected without interview)and I will have to go to Bangalore for medical test. Since I am staying in Mumbai, I had requested them to send me first offer letter or appointment letter on the letter head of employer and also to send a list of medical test required so that I can do medical test from any reputed hospitals of Mumbai.

When I reached there I saw that there was two receptionist type girls was available in the office, when I asked for the owner of the company I was told that he is out of station. The asked me to pay Rs 3150/= cash for medical test which I had paid but no receipt was provided to me.

 Today is 17th Aug 09.i made no of calls and send no of emails but no response. Last answer I was given that it will take 40 t0 45 days now to get the report. My request of providing address, tel no and email address of concerning person of employer in New Jersey is rejected by aaramco coordinations. Now I am feeling that I have been cheated by this company called aaramco coordinations.” – Bhavesh Manek.[2] This is not the one case which has happened. There was a recent survey where these recruitment agencies dupe the job seekers going to the Middle East and they were left to bare existence.

Before going to the arena of law let us ponder into the very essence of RECRUTING AGENCY and its need.  Recruitment agency [3]is an organization which matches employers to employees. The Emigration Act, 1983 defines a recruiting agent[4] as a person engaged in India in the business of recruitment for an employer and representing such employer with respect to any matter relating to such recruitment including dealings with persons so recruited or desired to be recruited. Recruitment, according to the Act, includes the issuing of any advertisement for the purpose of recruitment, the offering through advertisements to secure or assist in securing any employment in any country or place outside India and entering into correspondence, negotiation, agreement or arrangement with any individual in any country of place outside India. Emigration[5] means the departure of any person from India for employment (whether or not under an agreement, with or without the assistance of a registered Recruiting Agent or employer) in any country or place outside India. Nowadays the recruiting agents[6] play an important role as intermediary to overseas employer and Indian emigrant.

A major share of India’s foreign currency earnings is coming from NRIs[7] working abroad. Indian workforce is one of the most preferred in many countries. Technical grasp of Indian working people, knowledge of English language, adaptability with the strange environments, etc. are few of the reasons for this success.

To find a job abroad[8] and for relocation you need to take the assistance of Overseas Recruitment Agents in India. There are many Foreign Recruitment Agents in the major cities of India who help you to find jobs in countries like USA, United Kingdom and Middle Eastern (Gulf) countries who help you to secure Work and Employment Permit and visa in different countries.

These Foreign Recruitment Agents[9] mainly concentrate on jobs on which Indians are very familiar, i.e., Information technology Jobs, Technical Jobs, Construction Jobs, and Employment in Hospitals like Doctors jobs, Nurse Jobs, Designer Jobs, Jewellery maker jobs, etc.

The recruitment agent with the increase in demand has been engaging itself in many unscrupulous activities. The project is effort to throw some light on the unscrupulous activities by these recruiting agencies and the response of law towards it.

 

2. Various practices and procedures followed by the recruitment agencies for overseas appointment

2.1 Need for overseas recruitment agent:

 

 A major share of India’s foreign currency earnings is coming from NRIs working abroad[10]. Indian workforce is one of the most preferred in many countries. Technical grasp of Indian working people, knowledge of English language, adaptability with the strange environments, etc. are few of the reasons for this success. To find a job abroad and for relocation you need to take the assistance of Overseas Recruitment Agents in India.

The price of Indian labour is cheap so its demand is high in the market. And price the Indian Labour gets in the foreign market is high as compared to the domestic market, so the supply in the foreign market is high. As the labour gains awareness, it tries to claim for more prices and thus thereby decreasing the demand in the foreign market. Thus the overseas employer tries to engage the recruiting agent as an intermediary to find as cheap labour as possible so that it take more number of labour for a particular service. On the other hand the labours engage the recruiting agents to gain more price in the foreign market than the industry in the Indian counterpart.

2.2 PRACTICE AND PROCEDURES OF RECRUITMENT AGENCIES IN INDIA

The practice and procedure [11]of the recruitment agency can be analyzed through four dimensions of the functionality of these recruitment agencies. The four functional aspects are; a) Procedural, b) Informational, c) Economic and d) Guarantee.

 

2.2.1 Procedural Functions  [12]

PRA (Private Recruitment Agents)   and the Employer

The procedural functions of PRAs begin with the receipt of the demand letter(s) from the potential employers in the Middle East.  Currently this takes place in two ways:

a) The PRA either advertises through the mass media among the potential employers as a suitable professional agency or the PRA, their representatives, commission agents, or friends directly approach the potential employers.  In order to obtain contracts from the potential employers, the PRA or their representatives may employ various strategies. This could range from offering the most competitive price, to establishing personal relationships and offering money to obtain the placement order etc.  

The Employer and the PRAs [13]

Acceptance of demand order for placement by the PRAs is followed by the employer issuing the Power of Attorney to him simultaneously with entrusting the responsibility of finding the suitable candidates for him in the required number either fully or partially.  In some instances, the employer would demand PRA to only short-list suitable candidates for his personal evaluation.  In such cases, the PRA also arranges the venue for personal interviews. 

The PRAs and the Employees  [14]

The next stage in the procedural function involves the PRA and the intending emigrant.  As per the rules laid down in this regard by the Government of India, an intending emigrant is liable to fulfill certain pre-requisites before leaving the country for employment purposes.  The list of these pre-requisites include: passport, emigration clearance, employment contract, visa or work permit, medical examination certificate, police clearance certificate, return air tickets etc.

Once the candidates are screened and selected, usually it is the PRA who assists the candidates to fulfill the required procedural formalities which have to be met as per the rules.  During the field work it was found that the help provided in obtaining emigration clearance by the PRA was largely sought by the intending emigrants.

 

The Employer, PRAs and the Employee[15]  

The employment contract contains the terms and conditions of employment offered by the employer and acceptance of the same by the employee.  Usually, the PRA receives this certificate from the employer and obtains the signature of the employee either in his presence or through post. 

Upon the execution of the employment contract, the employer seeks the approval from his government and once it is received it is forwarded to the PRA.  This permission is generally called Visa/NOC/Work Permit/Entry Permit etc., and is the most important document in the external migration system.  This document is a pre-requisite to obtain emigration clearance, police clearance certificate, air-tickets etc. – and for most of the central documents concerning overseas labour mobility. 

Besides acting as a functionary within the external migration system, the PRA also performs certain functions other than his normal functions.  For instance, as an agent he arranges passport for the intending emigrants under certain contingencies. 

2.2.2 Informational Functions[16]  

Since the country of origin and the country employment is spatially separated (in the geographical sense, which is not controllable) and the controllable variable, time (the span between the placing of demand order and the supply of the required manpower) has to be minimized, there arises the need for an efficient communication network.  In this section an analysis is made to understand how the PRAs perform the role of information channeling network.  For instance, Indians and Pakistanis are caricatured as hard-working.  An employer may thus turn to India or Pakistan to meet his requirements of labour.  Again, the employer may already have adequate knowledge about certain reputed PRAs in either of the countries. 

 

The PRAs and the Employer  

An attempt is now made to describe the various modes of communication between the PRAs and the employer and to highlight their role in the dynamics of migration process.  Brief mention has been made earlier about the modus operandi adopted by the PRAs in communicating with the employer and vice-versa.  It takes place through two modes: a) Direct Mode; and b) Indirect Mode.  

The direct mode includes print media, i.e. newspaper, the Government Gazettes of the labour receiving countries and advertisements that appear in audio and videotapes.  The indirect mode includes personal meetings either by the PRA, his representatives, commission agents, friends or relatives with the potential employers.

 

The PRAs and the Employee  

In the communication network between the PRA and the employer, the PRA is more of an information gatherer than a supplier, but in the communication network between the PRA and the employee, the roles are reversed with the PRA performing the role more of an information supplier. 

The Times of India is clearly the National daily that devotes maximum advertising space for Overseas Appointments.  An analysis of the Times of India, published between August, 1999 and December, 1999, shows that most of the advertisements for ‘Overseas Appointments’ pertained to skilled and professional job categories.  However, when advertisements were made for multiple posts of various categories in one company, they also included the posts belonging to the semi-skilled and unskilled job categories.  

The PRA, the Employer and the Employee  

Information about the employee has to be passed on to the potential employers for assessment, choice and selection of the suitable employees by the employer.  This takes place in two ways: a) the PRA arranges for interviews in the home country and along with the employer or his representative selects the suitable employees.  Personal interviews generally take place for the selection of skilled/professional categories of the work force.  While in the earlier days, these interviews were mainly held at Mumbai (where majority of the PRAs are located), presently these interviews are conducted at several regional centres; b) interviews are generally not required for the selection of unskilled/semi-skilled categories of labour.  In these cases the employer tends to rely on the discretion of the PRAs.

 

2.2.3 Economic Functions[17]  

There are several activities that centre on the economic imperatives prior to the transportation of migrant workers from the country of origin to the country of employment.  An analysis is made, now of these activities and the different stakes, of the participants in the migration system.  A ‘free-market’ economic relation exists between the PRAs and the employers whereas the economic relation between the PRAs and the employers is ‘State regulated’.  In other words, the PRAs economic relation within the home country is ‘controlled’ while his external economic relation is ‘uncontrolled’.  

2.2.4 Guarantee Functions [18] 

PRAs are legally obliged to be a guarantor to both the employer and the employee. The guarantee that the PRA owes to the employer is that the employees recruited by him possesses all the required skills to take up employment.  However, the need of this guarantee does not arise in cases where the selection of the candidates has been made either by the employer or by his representatives.  The PRA also gives the guarantee that the employees recruited by him abide by all the terms and conditions spelt out in the employment contract.  The guarantee that a PRA gives to the employee is that he would not face any adversity in the country of employment which may arise on account of the breach of contract by the employer.

There are many instances when employees violate the terms spelt out in the employment contract during the period of their employment.  Violations of the terms of the contract by the workers are frequent absence, insubordination, violation of the local labour laws and disrespect local religious or social practices.  

Chapter 3: Laws regulating and controlling the functioning of recruiting agents

  1. Emigration act, 1983

 

(a) Registration of recruiting agents[19]

  • Only the Recruiting Agents registered with the Ministry of Labour[20] can conduct the business of recruitment for overseas employment after obtaining a Registration Certificate (RC) from the Protector General of Emigrants.
  • The Certificate is granted after taking into account Recruiting Agent’s financial soundness, trustworthiness, adequacy of premises, experience in the field of handling manpower export etc., and after obtaining security ranging from Rs.3 lakh to Rs.10 in the form of Bank guarantee depending on the number of workers to be deployed.
  • The scale of security is as follows:[21]

(i) Upto 300 workers – Rs. 3 lakh   (ii) 301 to 1000 workers – Rs. 5 lakh   (iii) 1001 workers and above – Rs. 10 lakh        

  • The security is intended to secure due performance[22] of the terms and conditions of the Registration Certificate and to meet the cost of repatriation of any recruited worker in the event of his being stranded abroad.
  • Under Section 16 [23]of the Emigration Act, 1983 an employer can recruit any citizen of India for employment in any country or place outside India either through a Recruiting Agent competent under the Act to make such recruitment or directly accordance with valid permit issued by the Central government under Section 15 of the Emigration Act.
  • The recruiting agents are authorised[24] to charge as service charges from each workers at the following rates: –
Category Maximum service charges
Unskilled workers Rs. 2,000/-
Semi-skilled workers Rs. 3,000/-
Skilled Workers Rs. 5,000/-
Other than the above Rs. 10,000/-

 

(b)  Rejection of the application for emigration clearance [25]:

The Protector of Emigrants shall, after satisfying himself about the accuracy of the particulars mentioned in the application and in the other documents submitted along with the application authorise in the prescribed manner and from the emigration of the applicant or intimate by order in writing the applicants or, as the case may be, the recruiting agent or employer, through whom the applications have been made about the deficiencies and require him to make good such deficiencies within such time as may be specified in the order or reject the application.

Subject to the other provisions of this Act[26], the competent authority may reject an application under sub-section (1) on any or more of the following grounds and on no other ground, namely –

(a)    that the application is not complete in all respects or that any of the  material particulars furnished in the application are not true;

(b)    that the terms and conditions of employment which the applicant  proposes to offer to persons recruited or proposed to be recruited by him are  discriminatory or exploitative;

(c)      that the employment which the applicant proposes to offer involves work  of a nature which is unlawful according to the laws of India or offends against the public policy of India or is violative of norms of human dignity and decency;

(d)    that having regard to the antecedents of the applicant, his financial standing, the facilities at this disposal, the working and living conditions of persons employed by him in the past, it would not be in the public interests or in the interests of the persons who may be recruited by him to issue a permit to him;

  (e) that having regard to the prevailing circumstances in the country or in the place where the applicant proposes to employ the persons recruited by him, it would  not be in the interests of any citizens of India to emigrate of taking up such  employment.

  (4) Where the competent authority makes an order under sub-section (2) rejecting an application, he shall record in writing a brief statement of his reasons for  making such order and furnish the applicant, on demand, a copy of the same;   Provided that if the competent authority, is of the opinion that it is necessary  or expedient in the interests of the general public so to do, he may refuse to provide  such copy or, as the case may be furnish a copy of only such parts of the statements as he may deem fit.

C) MANDATORY ATTESTATION OF EMPLOYMENT DOCUMENTS

Keeping in view reports about submission of fake/forged documents by some unscrupulous

Recruiting Agents to the Protector of Emigrants, it was decided to introduce mandatory attestation of employment in case of “unskilled workers” and “house maids. In addition, attested employment documents are required to be submitted for all categories of workers if the recruitment is for Yemen, Lebanon, Libya, Jordan, Kuwait, Sudan and Brunei. 

D) Job Advertisement by Recruiting Agents

It is mandatory on the part of the Recruiting Agents to quote the Registration Certificate number while advertising for overseas job.  Before issue of the advertisement the Recruiting Agent must obtain three employment documents – Demand Letter, Specimen Contract and Power of Attorney – from the foreign employer. The emigrant can confirm the genuineness of the agent from the nearest Protector of Emigrant’s office located in Mumbai, Delhi, Chennai, Thiruvananthapuram, Cochin, Kolkata, Hyderabad and Chandigarh or from the official website of the Ministry (http://www.moia.gov.in). He can also ask the Recruiting Agent to show the registration certificate and the three documents mentioned above.

  e) Offences and penalties:

 Offences and Penalties – (1) Whoever – Except[27] in conformity with the provisions of this act emigrates: Or Contravenes the provisions of Sec. 16: or By intentionally furnishing any false information or suppressing any material information obtains a certificate or a permit or an emigration clearance under this Act: or Without lawful authority makes or causes to be made any alteration in any certificate or permit or in any document or endorsement by way of emigration clearance issued or made under this Act ; or Disobeys or neglects to comply with any order of the Protector of Emigrants under this Act ; or  Collects form an emigrant any charges in excess of the limits prescribed under this Act;  or  Cheats any emigrant ; Shall be punishable with imprisonment for a term which may extend to two years  and with fine which extend to two thousand rupees: 

  1. Consumer protection Act, 1986

To be a ‘consumer’[28] under the Act:

(i) the goods or services must have been purchased or hired or availed of for consideration which has been paid in full or in part or under a system of deferred payment, i.e., in respect of hire-purchase transactions;

(ii) Goods purchased[29] or services hired/availed of should not be meant for re-sale or for a commercial purpose. Thus, where a vehicle has been purchased for the purpose of running it as a taxi (except where purchased by a person to earn his liveli-hood), the purpose being commercial, and the buyer shall not be a ‘consumer’ under the Act [Western India State Motors v. Subhag Mal Meena and Others (1989).

  • · The Recruiting Agent[30] seeking Emigration Clearance would have to Give an affidavit confirming the following:-
  1. That employment visa(s) attached/endorsed on the passports of the workers, issued by respective Foreign Mission/Competent Authority in respect of foreign employer as per the details given against each name is/are genuine and valid for the period mentioned.
  2. Details of workers.
  3. That the workers have been recruited by the RA on receipt of Demand Letter, Power of Attorney from the foreign employer and the same is being submitted.
  4. That the worker will be deployed to the same foreign employer for whom he is recruited and that he will be received by the foreign employer on reaching the country of employment.
  5. That the worker has been trade tested and found fit for the job for which he is being employed.
  6. That the worker will be paid minimum salary and shall be governed by minimum standard of condition of employment as specified in the Specimen employment contract whose copy is enclosed.
  7. That the worker will be deployed on the same job for which he has been recruited.
  8. That the female worker will not be deployed as maidservant/domestic worker.
  9. That the RA shall be responsible if persons sent by him are found to be unfit on reaching the country of employment. The cost of repatriation in such case(s) will be borne by him.

10.  That the RA is maintaining a register for the above mentioned details of the workers.

11.  That all the workers mentioned in point (ii) above are actually skilled and semi skilled and none of them is unskilled worker, agricultural labor, farm worker or housemaid, etc. It is further certified that the cook(s) included in the above list are not going for domestic employment.

12.  That the RA has gone through the provisions of sub Section (1) and (2) of Section 37 of the Emigration Act, 1983 and provisions of Section 193 of the Indian Penal Code, 1860 (45 of 1860) relating to punishment for false evidence and have understood the contents thereof and undertake that in event of any of the documents filed along with or referred to in this affidavit being found to be false, incorrect, fabricated ,tampered with or changed, he shall be liable under section 37 of the Emigration Act and Section 193 of the Indian Penal Code.

13.  That the intending emigrants have been apprised of the ground realities of the country of emigration including Maldives. The problems they are likely to face, the lifestyle, customs, religion, practices, dos and don’ts in the country of emigration have been communicated to the intending emigrants.

14.  That the RA undertakes to arrange thorough medical check up of all workers being deployed abroad before their travel from India.

15.  That the worker has signed the employment contract, which contains the seal and signature of the foreign employer in his presence and that the same employment contract has been countersigned by him with the seal of the RA and same has been handed to him and receipt obtained.

16.    No female below the age of 30 years should be granted Emigration Clearance for any type of work in any foreign country

Lapses at any stage and in any element and including non-availability of the proper documents to the workers or the employees will be treated as deficiency in service according to the consumer protection. 

  1. Fraud and cheating

 

Suddenly a mail props up in your inbox and states that they have shortlisted your resume for an overseas client and you have to clear all the formalities within a fortnight.

This is one of the recent spamming phenomenon in the web age where fraud is being carried very easily. People get lured by these advertisements and they are easy victims. Though under the INDIAN PENAL CODE And INDIAN CONTRACT ACT, fraud has been defined very clearly, yet it takes a long legal hassle to prove that the fraud has actually happened. The defrauding agency runs away with money or the prospective employee lands into the unhealthy conditions of work.

However INDIAN PENAL CODE defines cheating as:

Section 415. Cheating[31]

Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”.

Explanation. A dishonest concealment of facts is deception within the meaning of this section.

Illustration: A, by falsely pretending to be in the Civil Service, intentionally deceives Z, and thus dishonestly induces Z to let him have on credit goods for which he does not mean to pay. A cheats.

Indian Contract Act, 1872 defines Fraud in Section 17[32]

“Fraud” means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agents, with intent to deceive another party thereto his agent, or to induce him to enter into the contract;

(1) The suggestion as a fact, of that which is not true, by one who does not believe it to be true;

(2) The active concealment of a fact by one having knowledge or belief of the fact;
(3) a promise made without any intention of performing it;

(4) Any other act fitted to deceive;

(5) Any such act or omission as the law specially declares to be fraudulent.

 

As far as the malpractices by the recruiting Agents are concerned they can also be booked under these two statutes if the victim has proper documents showing the intention of cheat and defrauding of the recruiting agents. These are the remedies available apart from the Emigration laws and the Consumer protection laws.

various malpractices furthered by the recruitment agencies and the response of Law

The government of India has blacklisted 310 [33]companies in foreign countries out of which 122 are from Malaysia, 54 from Saudi Arabia and 49 are from Bahrain. However, these companies register in some other names and continue to carry out their illegal practices without any check in their exploitative practices. Indian missions in these 17 countries, where employers have been blacklisted, have no mechanism to control such malpractices as a result of which workers continue to suffer. Recent Malaysian agitations by workers of Indian origin have clearly highlighted our mission’s failure in the matter.

The number must[34] have increased during the last decade due to a large exodus of Indian workers and educated personnel to foreign countries. Though the living conditions of industrialists, businessmen and technical persons may be good, the vast strata of unskilled and semi-skilled workers are facing bad working and living conditions. In advanced capitalist countries Indian are victims of racial discrimination and are paid lower wages than their counterparts in advanced countries. Trade union movement in these countries does not pay sufficient attention to the problems of migrant workers.

SHOCKING WORKING CONDITIONS

The Report[35] of the High Level Committee on the Indian Diaspora (2001) had collected some information about the working conditions of the Indian migrants in gulf region. This is continuing uptil now but at a decreased frequency after the campaign against it was started. Similar conditions are prevailing in other countries due to non-availability of proper labour protection machinery. The following are glaring examples.

  • Employment agreements[36] are sometimes ignored on arrival of labour in the gulf and skilled workers are forced to work as unskilled persons. Employers sponsoring visas for labour sometimes do not receive them on arrival and leave them to fend for themselves. Several months of work may have to be devoted initially to the settlement of debt incurred in meeting the fee extorted by their recruiting agents in India, salaries are often not paid when due; some times not paid at all for several months towards the end of the contractual period resulting in workers being repatriated without full payment of their dues. Work permit fees are often deducted from their salaries.
  • Workers[37] have to work more than eight hours a day without any overtime payment. Medical facilities are inadequate or in some cases almost non-existent. The domestic workers are excluded from the purviews of the labour laws. Many women workers are sent to Gulf with false promises and made domestic servants. Quite often they have to face sexual harassment, molestation and rape by their employers.
  • The Report has further noted[38], “Naïve, vulnerable and gullible migrants have sometimes had to encounter dangers of a serious character. According to a report in India Today of March 9, 2001, as many as 24 persons from Kerala had been publicly beheaded on charges of narcotic smuggling, an offence that attracts execution under local law”. This happened because of lack of proper information provided by the recruitment agencies.

CHEATING OF WORKERS

  • Without stringent action against the culprits[39], the phenomenon of clandestine recruitment cannot be checked. There are thousands of unregistered employment agencies whose addresses cannot be traced when complaints are made against them. Many such recruiting agencies have made crores of rupees and withered away without any punishment by the authorities. During May 2007, 3846 migrant workers were in jails in 16 countries.
  • Equal numbers of workers[40] are migrating illegally from India without emigration clearance from the government of India. Various spurious recruiting agencies are operating who are charging a high amount from the workers and giving the false employment assurance and good salary, who later on find that they were cheated by the Indian recruiting agencies and their counterparts in foreign countries. Several workers who were promised well paid jobs ultimately had to work as domestic servants.

Law per say under the emigration laws and various complimentary laws such as Consumer Protection gives a wide scope of remedies available for these emigrants who are victim of malpractices by the recruiting agencies and the associated employer.

Remedies available for emigrants:

Even the Ministry of Overseas[41] has provided ongoing guidelines and remedies to the emigrants such as

  • The complaints[42] made by the emigrants/intending emigrants are thoroughly examined and if necessary, in consultation with the concerned Indian Mission abroad.  Action is taken, as appropriate in each case in accordance with the provisions of the Emigration Act, 1983 and Rules framed thereunder.  Section 10[43] of the Emigration Act, 1983 provides for compulsory registration of Recruiting Agents with the Registering Authority, i.e, Protector General of Emigrants, Government of India for carrying on the business of recruitment for employment abroad. Contravention of provisions of Section 10 is a cognizable offence and Section 24 of the Act prescribes penalties for those who commit or attempt to commit such offences.
  • All unregistered Recruiting Agents[44] are proceeded against under this provision. Complaints against them are referred to the concerned police authorities for investigation and filing F.I.R.  State Governments have been also requested to advise the District Authorities, in particular the Police Authorities, to ensure that preventive, strict and exemplary action is taken against illegal recruiting agents.  
  • As regards registered Recruiting Agents[45], action is taken by PGE against erring agents by way of suspension and cancellation of Registration Certificate. In cases where the conduct of the Recruiting Agent is found to be dubious he is placed in the internal Watch List. Whenever major error is committed by any agents, the Bank Guarantees submitted by the Recruiting Agents are forfeited apart from cancellation of their Registration Certificate. 
  • Complaints[46] against foreign employers are taken up with the Indian Mission abroad. Complaints mostly relate to change of employment contract, non-payment and deduction of salaries, unhygienic working conditions, etc. As and when the foreign companies are found involved in breach of contract and non-payment of salaries etc, the same companies are placed in the Blacklist. The recruiting agency who put the emigrants under such a situation are equally held liable for it
  • The Protector General of Emigrants holds public hearings[47] on every Tuesday at the office of POE, Delhi from 11.30 AM to 12.30 PM. An aggrieved person can meet the PGE during a public hearing for redressal of their grievances without any prior appointment. 

Response of Law:

In a statement issued in Lok Sabha on 08/07/2007[48] , minister for overseas Indian affairs Vayalar Ravi admitted that the scheme and the whole Act is retrograde and was a cause of harassment and corruption.

He was very true in remarking as still existed a wide racket of unauthorized recruiting agents who either did a large fraud with money or made the person land in pitiable situation. The law on this matter is very stringent but the penalty imposed is very low as a result the recruiting agencies walk away gloriously without any glitch. On the contrary the people suffer as many Keralites[49] who are in jails in the gulf countries are the victims of illegal recruiters and visa racketeers.

After huge ethical and dilemma and seeing the Indian labour forces wasted in the Gulf countries and Malaysia an amendment was proposed in Emigration Rules in 2009 which made the registration process of these recruiting agents more tight.

 

Then there is demand to amend the Emigration Act. The amendment, which will tighten the noose on human trafficking, is being carried out in the wake of frequent reports about Indian workers facing problems abroad.

In a recent incident, Indian[50] workers struck work at a US shipyard over alleged non-fulfillment of employment commitments to get a green card. Two recruiting agents were penalized when their registration certificate was suspended. The amended act’s aim is to “transform immigration into a humane, orderly and efficient process”, besides discouraging illegal migration practices.

“We have[51] to now wait for the state governments to take action against any recruiting agent for violating rules. Under the new act, we will have our own enforcement wing under the protector general of emigrants,” he said.

The 2002 amendment bill to the Emigration Act 1983 was presented to parliament in November 2002 but then had been referred to the standing committee of labour and welfare in December 2002. The committee brought out a report in December 2003 suggesting changes in the bill.[52]

Ministry of overseas and external AFFAIRS

In order to make the recruiting system more professional[53], responsible, accountable and transparent, the Ministry of Overseas Indian Affairs laid stress on its various objectives at various intervals of time including revamping of the recruitment system, training of recruiting agencies (RAs), rating system for RAs and self regulation by the RAs through a national level apex body of the RAs. 

conclusion and major findings

I am against more laws coming into force. Rather brining more and more amendments to the existing legislations, the implementation authority should be made strong. They should be given such a power that a tight noose can be put around the neck of these recruiting agents.  The single most  important dimension of emigration  that must engage your attention  is  the  poor  enforcement  of  the  Emigration  Act  in  the  states.  There has been a mushrooming of recruiting agents all over the country with no accountability. 

Many of these agents are fraudulent and unscrupulous middlemen who exploit and cheat gullible emigrants. Unfortunately,  the  law  enforcement  agencies  at  the  state  level responsible  for  investigation and prosecution action have not been effective  in  enforcement of the law.

Women Emigrant workers particularly those in the household service sector should be at the centre of all our policy initiatives. They are the most vulnerable. They suffer gender bias, economic bias and do not have the protection of labour laws. Women emigrants are often subjected to harsh living and working conditions and in several cases to sexual abuse. We need to make special efforts to address their concerns and problems. 

Indian emigrants (other than white collar workers) have, so far, been typically less educated,  low-skilled  and  ignorant  about  the  relevant  laws,  procedures,  culture  and language  of  the  destination  countries.  That  makes  them  vulnerable  cheating  by unscrupulous Recruiting  agents  and  exploitation  by  overseas  employers  and many  of them  become  illegal migrants while  opting  to work  in  foreign  countries without  proper  documentations or overstaying after the expiry of the work visa.

MINISTRY OF OVERSEAS ANNUAL REPORT-2008-2009(recent trend analysis to curb the malpractices)[54]

One  of  the  problems  faced  by  the  intending  emigrants  is  difficulty  in  accessing authentic and  timely  information  relating  to overseas employment,  recruiting agencies and emigration  procedures  etc.  Non availability of such information makes the emigrants dependent on intermediaries and vulnerable for exploitation. The ignorance of the intending emigrants is exploited by unscrupulous intermediaries.[55]

The Ministry is implementing a comprehensive e-governance project on migration. The ultimate benefit of the project would be greater convenience, effective protection and better welfare of the emigrant.  The  subsidiary  benefits  would  include  greater  levels  of  efficiency,  transparency and accountability  in  the  functioning of  the offices of  the Protector  General of Emigrants (PGE) and the Protectors of Emigrants (POE), real-time updation and  quick access to reliable emigrant data, management information system to support decision making,  computerized  management  of  recruiting  agent  system,  performance  rating  of  protectors of emigrants,  recruiting  agents &  employers,  effective monitoring  of  emigration offences,  interlinking  of  stakeholders  and  online  validation  of  information  across  stakeholders.  The  project  is  expected  to  mitigate  individual  discretion,  harassment  of  emigrants and  corruption. 

To  overcome [56] this  difficulty of lack of information and communication about the foreign country,   the Ministry  of Overseas  Indian Affairs  launched an Overseas  Workers  Resource  Centre  (OWRC)  to  provide  information  and  assistance  to  intending emigrants and  the  family members of overseas workers  relating  to all aspects of overseas employment.  The  OWRC  was  inaugurated  by  the  Prime  Minister  of  India  during  the  6th Pravasi Bharatiya Divas in New Delhi in January 2008. The OWRC at present is operating a 12/7 helpline to provide need based information to emigrants and their families through a toll free number.  The  complaints  or  grievances  received  on  the  toll  free  helpline  are promptly attended to and feed back provided to the complainant.

Complaints [57] are received about exploitation of overseas Indian workers.    Such complaints often pertain to non-payment/ delayed payment of wages, unilateral changes in the contract of workers, changing the jobs arbitrarily etc.  In extreme cases, the workers are not  given  any  employment  at  all  and  are  left  in  the  lurch  in  the  foreign  country.    Such workers, besides suffering untold misery, also become a burden on our Missions.    In such instances,  the  Protector  General  of  Emigrants  (PGE)  steps  in  and  asks  the  concerned Recruiting Agent (RA)  to get the workers repatriated on his expense.  If the RA fails to do, action is taken to suspend/cancel his registration and forfeit his Bank Guarantee to pay for the repatriation expenses. Complaints [58]against Recruiting Agents are enquired into with the help of POEs and the concerned Indian Missions.  Complaints against un-registered agents are referred to the concerned Police authorities for investigation and action under the law of the land. 

  • All  State  Governments [59] and  UT  Administration  have  been  advised  to  instruct  all Police Station  to  keep  a  strict  vigil  on  the  activities  of  unscrupulous  agents.   Complaints against foreign employers are taken up with the Indian Mission and if need be the employer is blacklisted.
  • During 2008 [60]registration certificates of 06 recruiting agents were cancelled.   As on 31.3.2009, 351 foreign employers are on the blacklist.    During 2008 we received 93 complaints of illegal recruitment.   Prosecution sanctions were issued in 56 cases in 2008 based on police report.  During  2009 [61] up to  31.3.2009,  six  Prosecution  sanctions  have  been  issued  and  26  cases  relating  to  unregistered  agencies  have  been  referred  to  State Governments/POEs  concerned for appropriate action. Still there is a long way to go to tighten this malicious recruiting agencies. As long as the corruption continues, as long as the faulty implementation continues and as long there is inefficient law and practice by the government and the legislature the effort to curb it will always meet a failure.

 

 Suggestions

Big picture:

  • Amendment to the Emigration Rules as a corollary to the amendment to the Emigration Act, 1983.    
  • Establishment of an Apex Professional Institution in the line of ICAI, ICWAI, etc.  Such an Institution will play a role for enabling capacity building, developing and following good practices, setting standards and representation of RAs at International conferences. 
  • Training Programme for the RAs which should be proposed.
  •  Introducing a rating system for the RAs.  The rating system will have a clear cut objective, criteria and standards of performance.
  • The level of the penalty for the recruiting agent who is engaged in the malpractices. The penalty should graded according to the graveness of the malpractices.
  • There is enough law to check these recruiting agents. Implementation should be done by a central regulating authority administered by the Minister of overseas and external affairs.

For Prospective employees:

  • They do not provide false information in their resume.
  • Have nothing to do with fake documents.
  • Avoid responding to job offers that are not relevant to their field or skill sets.
  • Avoid putting in personal information such as addresses and mobile numbers on resumes as they are mined by hackers who then sell them to an underground economy.
  • Do not pay money as a fee or a security deposit as a guarantee for employment or admission to an educational institute.
  • Avoid agents. The sheer profitability of cross-border education or employment enrollment encourages agents with charging different people with recruiting, orienting and creating false documents.
  • Check the reliability of overseas employer.
  • No placement firm can market you. Ultimately, it is the candidate who markets himself and clinches the job.
  • Many placement agencies claim to have a direct access to a hidden job market. Do not be carried away by their claims. Avoid them.
  • Be skeptical if they promise you a work visa without a job interview and an offer letter.
  • Avoid them if they contact you after getting your resume online.
  • Avoid them if they ask for money in advance. Chances are that you will never see them again.
  • Ask for names of those who have been placed along with their contact details.
  • Investigate how long the employment company has been in business by getting hold of a detailed financial report on a specific company through third party web sites such as www.credit.net
  • Use the website to check if any complaints have been filed against the firm. Begin by requesting reviews on the company through online company review sites such as www.goolti.com and www.desicrunch.com.
  • If looking for the authenticity of the company’s website, visit the web archives (http://web.archive.org/collections/web/advanced.html), to view the age as well as all the past updates made on the companies’ website.
  • Research any information the firm provides to you before you make a commitment. Getting all promises in writing.
  • Before you pay for anything, request and obtain a written contract that describes the services the firm intends to provide.
  • Determine whether the firm is simply going to forward your resume to a company that publicly advertised a listing, or if it will actually seek to place you with an employer.
  • Make sure that any promise you receive in writing is the same as what was stated in the initial sales pitch.
  • Ask for an employment contract and read the contract very carefully again and again. Have an attorney look over any documents before you sign them.
  • Keep a copy of all agreements you sign, as well as copies of all email communication with the company.
  • Beware of any agency that is unwilling to give you a written contract.
  • Do not hesitate to ask questions. You have a right to know what services to expect and the costs involved.
  • Never make a hasty decision. Instead, take time to weigh all the pros and cons of the situation. Be wary of demands that “you must act now to miss the visa filing deadline.”
  • If you are already working overseas, and feel your employer is in violation of his contract, do not hesitate to contact the labour department in the country you are in. Every country seeking foreign labor has laws to protect their guest workers.
  • Build a strong online reputable identity.

REFERENCES 

  1. MINISTRY OF OVERSEAS INDIAN AFFAIRS- ANNUAL REPORT 2008-09
  2. http://www.consumercomplaints.in/complaints/aaramco-coordinationsbangaloreindia-c234404.html as retrieved on 9 th March, 2010
  3. http://en.wikipedia.org/wiki/Employment_agency as retrieved on 13th April, 2010
  4. http://www.indialabourarchives.org/publications/sksasikumar.htm as retrieved on 13th April, 2010
  5. www.moia.gov.in/pdf/Emigration_and_You.pdf as retrieved on 13th April, 2010
  6. www.overseasindian.in/pdf/2006/aug/Eng-Aug06.pdf as retrieved on 13th April, 2010
  7. www.phoneixcallcenterrecruitment.com/manpower-employment.html as retrieved on 13th April, 2010
  8. http://www.naukrihub.com/overseas-jobs/agents/ as retrieved on 13th April, 2010
  9. http://www.namasthenri.com/passport/emigrationclearance.html#1983 as retrieved on 13th April, 2010

10.  www.moia.gov.in/faq.aspx?cf=11&id1=193&idp=193…73 – as retrieved on 13th April, 2010

11.  http://www.punjabkesari.com/NRI/clearance.htm as retrieved on 13th April, 2010

12.  obs-kuwait.com/jobseekers_emigration.html – as retrieved on 13th April, 2010

13.  http://www.indiaid.com/news/2008/03/26/article_20080326 as retrieved on 13th April, 2010

14.  http://igovernment.in/site/emigration-check-norms-eased-in-india?page=2 as retrieved on 13th April, 2010


[1] authored by- Parikshit –MBA, LLM  NATIONAL LAW UNIVERSITY, JODHPUR

[2] http://www.consumercomplaints.in/complaints/aaramco-coordinationsbangaloreindia-c234404.html as retrieved on 9 th March, 2010

[3] http://en.wikipedia.org/wiki/Employment_agency as retrieved on 13th April, 2010

[4] http://www.indialabourarchives.org/publications/sksasikumar.htm as retrieved on 13th April, 2010

[5] www.moia.gov.in/pdf/Emigration_and_You.pdf as retrieved on 13th April, 2010

[6] www.overseasindian.in/pdf/2006/aug/Eng-Aug06.pdf as retrieved on 13th April, 2010

[7] www.phoneixcallcenterrecruitment.com/manpower-employment.html as retrieved on 13th April, 2010

[8] http://www.naukrihub.com/overseas-jobs/agents/ as retrieved on 13th April, 2010

[9] www.phoenix-hrd.co.in/manpower-employment.html as retrieved on 13th April, 2010

[10] http://www.naukrihub.com/overseas-jobs/agents/ as retrieved on 13th April, 2010

[11] www.indialabourarchives.org/publications/sksasikumar.htm as retrieved on 13th April, 2010

[12] Ibid.

[13] Ibid.

[14] Ibid.

[15] Ibid.

[16] Ibid.

[17] Ibid.

[18] Ibid.

[19] http://www.namasthenri.com/passport/emigrationclearance.html#1983 as retrieved on 13th April, 2010

[20] www.moia.gov.in/faq.aspx?cf=11&id1=193&idp=193…73 – as retrieved on 13th April, 2010

[21] http://www.punjabkesari.com/NRI/clearance.htm as retrieved on 13th April, 2010

[22] obs-kuwait.com/jobseekers_emigration.html – as retrieved on 13th April, 2010

[23] www.moia.gov.in/pdf/Emigration_and_You.pdf as retrieved on 13th April, 2010

[24] http://www.punjabkesari.com/NRI/clearance.htm as retrieved on 13th April, 2010

[25] www.moia.gov.in/pdf/permits_for_recruitment_by_employee.pdf as retrieved on 13th April, 2010

[26] http://jobs-kuwait.com/jobseekers_emigration.html as retrieved on 13th April, 2010

[27] www.moia.gov.in/pdf/offences_and_penalties.pdf as retrieved on 13th April, 2010

[28] www.egyankosh.ac.in/bitstream/123456789/33153/1/Unit18.pdf

[29] consumereducation.in/defectivegood.pdf as retrieved on 13th April, 2010

[30] http://www.ipcsi.org/ecssystem.php as retrieved on 13th April, 2010

[31] http://www.vakilno1.com/bareacts/IndianPenalCode/S415.htm as retrieved on 13th April, 2010

[32] http://www.vakilno1.com/bareacts/indiancontractact/s17.html as retrieved on 13th April, 2010

[33] 164.100.24.208/ls/CommitteeR/External/14rep.pdf as retrieved on 13th April, 2010

[34] pd.cpim.org/2008/0525_pd/05252008_17.htm as retrieved on 13th April, 2010

[35] www.overseasindian.in/pbd_2006/annual_report.pdf – as retrieved on 13th April, 2010

[36] www.indiandiaspora.nic.in/diasporapdf/chapter3.pdf as retrieved on 13th April, 2010

[37] pd.cpim.org/2008/0525_pd/05252008_17.htm as retrieved on 13th April, 2010

[38] Ibid.

[39] Ibid.

[40] Ibid.

[41] www.moia.gov.in/pdf/Emigration_and_You.pdf as retrieved on 13th April, 2010

[42] Ibid.

[43] www.indiapolice.in/ as retrieved on 13th April, 2010

[44] www. moia.gov.in/pdf/Emigration_and_You.pdf as retrieved on 13th April, 2010

[45] Ibid.

[46] Ibid.

[47] Ibid.

[48] http://igovernment.in/site/emigration-check-norms-eased-in-india?page=2 as retrieved on 13th April, 2010

[49] http://www.prd.kerala.gov.in/tfest/norka_roots.html as retrieved on 13th April, 2010

[50] http://www.indiaid.com/news/2008/03/26/article_20080326 as retrieved on 13th April, 2010

[51] Ibid.

[52] http://www.thaindian.com/newsportal/uncategorized/coming-soon-amendment-to-emigration as retrieved on 13th April, 2010

[53] www.moia.gov.in/…/Consultations_with_the_Recruting_Agencies_and_NGOs.pdf as retrieved on 13th April, 2010

[54] www.moia.gov.in/writereaddata/pdf/Annual_Report_2008-09.pdf as retrieved on 13th April, 2010

[55] Ibid.

[56] Ibid.

[57] ibid

[58] ibid

[59] ibid

[60] ibid

[61] ibid

RIGHT TO SELF DETERMINATION : SPECIAL REFERENCE TO TIBET

Self-determination is defined as free choice of one’s own acts without external compulsion; and especially as the freedom of the people of a given territory to determine their own political status. It can also be defined as the ability or power to make decisions for oneself, especially the power of a nation to decide how it will be governed. In other words, it is the right of the people of a nation to decide how they want to be governed without the influence of any other country. The latter is a complex concept with conflicting definitions and legal criteria for determining which groups may legitimately claim the right to self-determination. This often coincides with various nationalist movements.[1]

Self-determination embodies the right for all peoples to determine their own economic, social and cultural development. Self-determination has thus been defined by the International Court of Justice (in the West-Saharan case) as: “The need to pay regard to the freely expressed will of peoples.”
It is important to stress that for indigenous peoples the term self-determination does most often not imply secession from the state. The right of self-determination of peoples is a fundamental principle in international law. It is embodied in the Charter of the United Nations and the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Common Article 1, paragraph 1 of these Covenants provides that:
“All peoples have the rights of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”
The right of self-determination has also been recognized in other international and regional human rights instruments such as Part VII of the Helsinki Final Act 1975 and Article 20 of the African Charter of Human and Peoples’ Rights as well as the Declaration on the Granting of Independence to Colonial Territories and Peoples. It has been endorsed by the International Court of Justice. Furthermore, the scope and content of the right of self- determination has been elaborated upon by the United Nations Human Rights Committee and Committee on the Elimination of Racial Discrimination as well as international jurists and human rights experts.[2]

HISTORY OF THE RIGHT TO SELF-DETERMINATION

Pre-20th Century

Just as colonization and colonialism have been practiced throughout human history, political self-determination has been cherished by people through history, the ancient Mesopotamian and later Greek city-states being early examples.

The revolt of the British colonists in North America has been defined as the first assertion of the right of national and democratic self-determination. Thomas Jefferson further promoted the notion that the will of the people was supreme, especially through authorship of the Declaration of Independence which inspired Europeans throughout the 19th century. The French Revolution also was motivated by and legitimatized ideas of self-determination.

During the early 1800s most of the nations of South America achieved independence from Spain. After the American Civil War the United States government opposed self-determination for the West Indian islands of Saint Thomas and Saint John in 1868, the Hawaiian Islands in 1868. By the conclusion of the Spanish-American War in 1899 the United States supported its annexation without the consent of the peoples the former Spanish colonies of Guam, Puerto Rico and the Philippines; it retained “quasi-suzerainty” over Cuba.[3]

 

World War I and II

Woodrow Wilson revived the American commitment to self-determination, at least for European states, during World War I. When the Bolsheviks came to power in Russia in November 1917, they called for Russia’s immediate withdrawal as a member of the Allies of World War I. They also supported the right of all nations, including colonies, to self-determination. In 1914 Lenin wrote: “It would be wrong to interpret the right to self-determination as meaning anything but the right to existence as a separate state.”

The end of the war led to the dissolution of the defeated Austro-Hungarian Empire and the creation by the Allies of Czechoslovakia and the union of the State of Slovenes, Croats and Serbs and the Kingdom of Serbia as new states. However, this imposition of states where some nationalities (especially Poles, Czechs, and Serbs and Romanians) were given power over nationalities that disliked and distrusted them eventually helped lead to World War II. The defeated Ottoman empire was dissolved into the Republic of Turkey and several smaller nations, plus the new Middle east Alliedprotectorates” of Syria, Palestine, Iraq and Yemen. The League of Nations was proposed as much as a means of consolidating these new states, as a path to peace.

During the 1920s and 1930s there were some successful movements for self-determination in the beginnings of the process of decolonization. In the Statute of Westminster the United Kingdom granted independence to Canada, New Zealand, Newfoundland, the Irish Free State, the Commonwealth of Australia, and the Union of South Africa after the British parliament declared itself as incapable of passing laws over them without their consent. Egypt, Afghanistan and Iraq also achieved independence from Britain and Lebanon from France. Other efforts were unsuccessful, like the Indian independence movement. And Italy, Japan and Germany all initiated new efforts to bring certain territories under their control, leading to World War II.[4]

The UN Charter

In 1941 Allies of World War II signed the Atlantic Charter and accepted the principle of self-determination. In January 1942 twenty-six nations signed the Declaration by United Nations, which accepted those principles. The ratification of the United Nations Charter in 1945 at the end of World War II placed the right of self-determination into the framework of international law and diplomacy. However, the charter and other resolutions did not insist on full independence as the best way of obtaining self-government, nor did they include an enforcement mechanism. Nevertheless, justified by the language of self-determination, between 1946 and 1960, the peoples of thirty-seven new nations freed themselves from colonial status in Asia, Africa, and the Middle East. The territoriality issue inevitably would lead to more conflicts and independence movements within many nations and challenges to the assumption that territorial integrity is as important as self-determination.

The Soviet Union’s successful post-war efforts to turn Eastern Germany and the countries of Eastern Europe into Soviet satellite states contrasted with decolonization. The additional success of communists in creating the People’s Republic of China led to the Cold War with western nations. These nations became willing to support authoritarian governments as long as they remained anti-communist and began to suspect all self-determinations movements of being communist-inspired or controlled. Thus the United States entered into a 10 year war in Vietnam, taking over from French colonialists, and supported Portugal in its attempts to hold on to Angola. The Soviet Union also violated principles of self-determination by suppressing the Hungarian revolution of 1956 and the Prague Spring Czechoslovak reforms of 1968. It invaded Afghanistan to support an increasingly unpopular communist government assailed by local tribal groups.

In December 1991, Gorbachev resigned as president and the Soviet Union dissolved relatively peacefully into fifteen sovereign republics, all of which rejected communism and most of which adopted democratic reforms and free-market economies.[5]

CURRENT ISSUES

Since the early 1990s, the legitimatization of the principle of national self-determination has led to an increase in the number of conflicts within states, as sub-groups seek greater self-determination and even full secession, and as their conflicts for leadership within groups and with other groups and with the dominant state become violent. The international reaction to these new movements has been uneven and often dictated more by politics than principle. The year 2000 United Nations Millennium Declaration failed to deal with these new demands, mentioning only “the right to self-determination of peoples which remain under colonial domination and foreign occupation.”[6]

UTI POSSEDETIS AND SELF-DETERMINATION

The concept of Self-Determination has been greatly influenced by the doctrine of uti possedetis which derives from Roman law and which was applied in the context of the decolonization of Latin America in the nineteenth century. According to the doctrine, when Spain was leaving its Latin American territories the boundaries left behind were to be respected and could not be changed under any circumstances. This rule has become recognized in customary law and was applied in the context of later decolonisations. In the case concerning the Frontier dispute: Burkina Faso v Republic of Mali[7] the ICJ stated the doctrine of uti possedetis

“….is a general principle, which is logically connected with the phenomenon of the obtaining of independence, whenever it occurs. It’s obvious purpose is to prevent the independence and stability of states being endangered by fratricidal struggles provoked by the challenging of frontiers following the withdrawal of the administering power.”

In 1991 the Badinter Arbitration Committee which was charged by the EC with preparing guidelines on the recognition of new states emphasized the importance of uti possedetis by stating that:

“…it is well established that, whatever the circumstances, the right to self-determination must not involve changes to existing frontiers at the time of independence except where the states concerned agree otherwise.”[8]

The commonwealth of Independent States (CIS) which emerged after the break-up of the Soviet Union, upheld the principle of uti possedetis. The charter of the CIS signed at Minsk on 8th December 1991 provides that ‘the High Contracting Parties acknowledge and respect each other’s territorial integrity and the inviolability of existing borders within the Commonwealth.’ This was further confirmed by the Alma Ata Declaration of 21st December 1991.[9]

RIGHT TO SELF DETERMINATION IN CONTEXT OF TIBET

Tibet asserts a claim to self-determination. The right to self-determination is a right devolving upon peoples. That the Tibetans are a people within the purview of the right to self-determination is not in dispute. They possess every conceivable attribute of a people. The Tibetans are a cohesive group that has a common religion, common language, common territory, common culture, and common society. The Tibetans are a self-identifying group–a people. What is not communal is a history that has been distorted by external aggression.

All claims to self-determination are intensely oppositional, and in Tibet’s case, the claim is against the People’s Republic of China. The right of self-determination, however, admits of manifold remedies. Fundamentally, self-determination is autonomy for a people, but this can be manifested in any number of ways. At one end of the spectrum, self-determination means a certain measure of autonomy (whether cultural, political, economic, or otherwise) within a dominant state; at the other end of the spectrum, self-determination means autonomy without a dominant state–namely, complete sovereignty or independence. This continuum hence involves a critical disjunction. States–for reasons of self-preservation–are not ideologically predisposed to permit internal entities to secede. It is therefore not surprising that China opposes Tibet’s claim to self-determination, which is a claim to independence, or secession.[10]

Tibet’s claim proceeds on several grounds. In the first instance, Tibet argues that it enjoyed at least de facto independence from 1912, when it freed itself from Manchu domination, until 1950, when it was overrun by the PLA. This is underscored by its treaty with Mongolia and its recognition by Britain in the Simla Convention. Moreover, during this period Tibet conducted its internal and external affairs completely independently, with Chinese presence within the country ranging from non-existent to minimal. Secondly, Tibet claims that the Chinese invasion in 1950 was an unjustifiable act of unmitigated aggression contrary to the norms of customary and conventional international law. Thirdly, Tibet claims that the Seventeen-Point Agreement was void ab initio as it was signed under duress and without authorization from the Tibetan government.

Tibet’s first point is absolutely essential in establishing a territorial claim against the PRC. If its prior territorial claim is valid, and if China’s subsequent usurpation is illegal under international law, then Tibet is entitled to reassert its sovereignty over its territory as an independent state. China’s counterclaim is that it peacefully liberated Tibet, thereby forging a reunification of historically bound entities. It claims further that Tibet is a coequal nationality functioning fully autonomously within the PRC. China’s claim, however, is belied not only by evidence already adduced, but by its own admission. To recapitulate the “Report on the Draft of the Revised Constitution of the PRC,” delivered to the Fifth National People’s Congress on November 26, 1982; it has been argued that the Tibetans as a people have a right to self-determination. Moreover, because the Tibetans have a valid territorial claim, their right to self-determination should entail a right to independence encompassing a reassertion of sovereignty over territory misappropriated by the PRC. To ensure that independence is indeed the will of the people and to provide a mechanism for the enactment of their right to self-determination, an internationally supervised plebiscite should be held as called for by the Dalai Lama. The likelihood of such a plebiscite taking place in the near future, however, is miniscule. The greater reality is that an equitable remedy will not be forthcoming until it is deemed politically expedient.[11]

The Tibetans’ demand for “Genuine Self-Rule” does not conflict with the PRC’s claim of territorial integrity. The right of Self-Determination may not conflict with the right of territorial integrity at all if the demand for self-determination falls short of secession. For example, decentralizing power from a central government to regional or local governments (“federalism”) can be a form of self-determination. Federalism has long been a model for power-sharing among groups outside the context of a “people” as such seeking self-determination (e.g. Canada, the United States). It is also an available option short of secession to claims of self-determination, as in the case of Quebec’s dispute with Canada, and the relationship between the United Kingdom and Northern Ireland, Scotland and Wales. The Dalai Lama’s willingness to negotiate for “genuine self-rule” short of complete independence would resolve the Tibetans’ claim for self-determination without impairing the PRC’s territorial integrity. It would also enhance international peace and security because, while the PRC would still control Tibet’s defense, a self-governing Tibet would provide an economically and socially more stable region at the juncture of China, India and Pakistan than currently exists.[12]

It has already been observed that Tibet has been subject to the vicissitudes of international Realpolitik. Tibet’s small population, pacifistic demeanor, and isolated geography are all factors contributing to its relative obscurity in the international community. Throughout much of its history, and certainly in the modern era, Tibet has served as a political buffer zone for larger and more powerful states. The Manchus, the United States, Britain, India, Russia, and Nepal–not to mention the Chinese–have all tailored their relations with Tibet to meet strategic interests. This, it might be said, is only what is to be expected. On one level, this is indeed so. But on another level, that of concern for universal human rights and self-determination, power politics is inadequate–morally inadequate. To help overcome this deficiency, it is proposed that whenever it is determined that genocide has been perpetrated against a people; there should be a concomitant right to secession exercisable at its option. The reasoning is simple: no aggressor committing genocide against a people can be entrusted with that people’s welfare into the future. Such an aggressor ceases to possess any credibility in dealing with an oppressed people. If a people oppressed by genocide were not guaranteed the right to secede, this would be tantamount to rewarding the oppressor to the very extent it had succeeded in committing genocide–a morally perverse and illogical result. Genocide, the worst of transgressions in international law, must be accorded a remedy, and that remedy should be the fullest expression of self-determination–complete autonomy as manifested in independence. Invoking such a right in the case of the Tibetans, who have been documented as being the victims of genocide and other human rights violations, would make their claim to independence absolutely compelling, legally as well as morally.[13]

CHINESE DISSIDENTS CHALLENGE BEIJING TO GRANT TIBETANS THE RIGHT TO SELF-DETERMINATION

On 30 September 1996 two Chinese dissidents dared the government to grant Tibetans the right of self-determination and to talk to Tibet’s exiled leader, the Dalai Lama. The appeal from Liu Xiaobo and Wang Xizhe was likely to anger China’s Communist leadership, which keeps a tight grip over the Himalayan region it claims has been part of China for 700 years.

Liu and Wang, both of whom have spent time in jail for their political activism, made their appeals in a sometimes caustically worded petition faxed to The Associated Press by a Hong Kong-based human rights group. In telephone interviews, Wang and Liu confirmed the petition’s authenticity. “The Chinese government has made mistakes in Tibet, especially since the Cultural Revolution,” Wang said, referring to the 1966-76 radical political movement when Chinese youths destroyed thousands of Tibetan temples.

In the petition addressed to the Communist Party’s Central Committee, Liu and Wang accused the Communists of going back on pledges made before they came to power in 1949 that China’s ethnic minorities should have the right to self-determination and even “the right to set up an independent country.”

This way of doing things and style of work has continued to the present day. It is wrong and is a major reason why the Communist Party has ultimately lost popular support,” said the petition released by the Information Center of Human Rights and Democratic Movement in China.  China routinely suppresses Tibetan calls for independence and greater freedoms. It also accuses the Dalai Lama, who fled Tibet after a failed uprising against Chinese rule in 1959, of destabilizing the region by appealing for greater autonomy. While they did not want to see China divided, Wang and Liu said the Han Chinese majority should not “deny the right to self-determination of each ethnic minority.”

Wang is one of China’s earliest democracy campaigners, having been in and out of jail since putting up a poster in southern Canton city in 1974 and Liu, a former history lecturer at Beijing’s Teachers College, helped lead a hunger strike during Tiananmen Square demonstrations in 1989. He served two years in jail and has been detained several times since then.[14]

 

REASONS TO SUPPORT TIBETAN SELF-DETERMINATION

REASON 1: Tibet has been illegally and forcibly occupied by China since 1950

Prior to 1950, Tibet was an independent sovereign state with a fully functioning government headed by the Dalai Lama. China’s invasion of Tibet by 40,000 troops in 1950 was an act of unprovoked aggression. Annexation by force is in violation of Article 2(4) of the United Nations Charter and there was no internationally accepted legal basis for China’s claim of sovereignty.

As recently as 1914, a treaty was signed by Britain, China and Tibet that formally recognized Tibet as a fully independent country and demarcated Tibet’s borders. The 17-Point Agreement of 1951, which the People’s Republic of China (PRC) claims resolved Tibet’s status, was signed under the threat of violence and is not considered legally valid.

The State of Tibet continues, despite the illegal occupation, through the existence and activities of the Tibetan Government-in-Exile. The Dalai Lama remains the Head of State with executive functions organized under the cabinet, or Kashag.

 

REASON 2: The human cost to the Tibetan people is of tragic proportions

The International Commission of Jurists concluded in its 1959 and 1960 reports that there was a prima facie case of genocide committed by the Chinese upon the Tibetan nation. Reprisals for the 1959 National Uprising against the Chinese occupation alone involved the “elimination” of 87,000 Tibetans. Tibetan exiles claim that 430,000 died during the uprising and the subsequent 15 years of guerrilla warfare.

A total of some 1.2 million Tibetans are estimated to have been killed as a result of Chinese actions since 1950 including up to 260,000 people who have died in prisons and labor camps between 1950 and 1984. Over 110,000 Tibetans have left Tibet to seek sanctuary in other countries.[15]

Since 1987, some 3,000 people are believed to have been detained for political offences in Tibet, many of them for writing letters, distributing leaflets or talking to foreigners. Any expression of opinion contrary to Chinese Communist Party ideology can result in arrest. As of January 2004, 145 known Tibetans remain in Chinese prisons or detention centers because of their political views. Of these, nine are women. Two thirds of the prisoners are nuns, monks, and former monks or reincarnate lamas. Those detained are often denied legal representation. Prison sentences are regularly decided before the trial. Fewer than 2% of cases are won by the defense. A political prisoner in Tibet can now expect an average sentence of 6.5 years. Possessing an image of the Tibetan national flag can lead to beatings and a seven-year jail term.

Detailed accounts show that the Chinese conducted a systematic campaign of torture against Tibetan dissidents in prison from March 1989 to May 1990. Despite China having ratified a number of UN conventions, including those relating to torture, women, children and racial discrimination, Chinese authorities in Tibet still repeatedly violate these conventions. Beatings and torture are regularly used against virtually all political detainees and prisoners today.

 

REASON 3: The repression of the Tibetan people in their own land continues to this day and compounds the illegitimacy of the Chinese rule

The PRC’s government in Tibet was imposed on the Tibetans by force, not by an exercise of self-determination. China has persistently and systematically abused the rights of Tibetans through religious repression, population transfer, birth control policies, discrimination, destruction of the environment, involuntary disappearances, arbitrary arrest, torture and arbitrary extra-judicial executions.

 

REASON 4: China denies the Tibetan people’s right to democratically elect their own political representatives

By the 17-Point Agreement of 1951, China undertook not to interfere with Tibet’s existing system of government and society, but never kept these promises in eastern Tibet and in 1959 reneged on the treaty altogether. China has renamed two out of Tibet’s three provinces, Kham and Amdo, as parts of the Chinese provinces of Qinghai, Gansu, Sichuan and Yunnan, and renamed the remaining province of U’Tsang as the Tibet Autonomous Region (TAR). There is no evidence to support China’s claim that the TAR is autonomous: all local legislation is subject to the approval of the central government in Beijing; all local government is subject to the regional party, which in Tibet has never been run by a Tibetan. Tibetans must pledge their allegiance to the Chinese government.[16]

China, in violation of the norms set forth in the Universal Declaration of Human Rights (UDHR) established by the United Nations, deprives the Tibetan people of their right to democratically elect its political representatives. In particular the UDHR provides for the right: “… to take part in the government of one’s country directly or through freely chosen representatives” and “the will of the people shall be the basis of that authority of the government.”

 

REASON 5: The use of the Chinese language in Tibetan schools and as the effective official language of Tibet represses Tibetan culture and has marginalized many Tibetans

All secondary school classes for Tibetan children are taught in Chinese and Chinese culture is emphatically promoted. Tibetan students suffer from prohibitive and discriminatory fees and inadequate facilities in rural areas. Many Tibetan children are sent away to China for education, usually for a period of seven years. Although English is a requirement for most university courses, Tibetan students cannot learn English unless they forfeit study of their own language.

A distorted history program is used which omits all references to an independent Tibet. At school, no unrehearsed discussion of Tibetan cultural, religious and social issues is allowed. Party positions must actively be upheld. Early on, Chinese replaced Tibetan as the official language of Tibet.

The Chinese authorities have imposed policies that make the Tibetan language redundant or secondary in all sectors. The result is both the progressive disappearance of Tibetan culture as well as the marginalization of Tibetans in economic, educational, political and social spheres to the point where they are becoming second-class citizens in their own land.

 

REASON 6: Tibetans are aggressively prevented from freely pursuing their religious practices

In 1960, the International Commission of Jurists found that: “Acts of genocide had been committed in Tibet in an attempt to destroy the Tibetans as a religious group.” Religious practice was forcibly suppressed until 1979, and up to 6,000 monasteries and countless religious artifacts were destroyed during the Cultural Revolution. Today, the Chinese authorities closely monitor the activities of the remaining and rebuilt monasteries through a police presence.[17]

The 1982 Constitution of the People’s Republic of China guarantees freedom of religious belief, but China restricts the numbers of monks and nuns entering Tibetan monasteries and forbids initiates under 18. In 1995, the Chinese authorities rejected the six-year-old boy recognized by the Dalai Lama as the 11th Panchen Lama, the reincarnation of Tibet’s second-ranking spiritual leader, and selected and installed their own Panchen Lama. The Chinese have admitted holding the boy and his family in “protective custody”. Despite international efforts, their location is still unknown and their condition remains uncertain. In 1996 the “Strike Hard” campaign was initiated, specifically targeting Tibetan Buddhism. Between 1996 and 1998, 492 monks and nuns were arrested and 9,977 expelled from their religious institution by the Chinese. Attempts have been made to discredit the spiritual authority of His Holiness the Dalai Lama. Possessing an image of the Dalai Lama is today illegal in Tibet and China recently declared Tibet to be non-Buddhist.

 

REASON 7: Chinese policies have encouraged Chinese settlers to the point where Tibetans have become a minority in many areas of Tibet

Beijing has admitted a policy of deliberately encouraging Chinese immigrants to settle on a long-term basis in Tibet. The aim of the Western China Development Program launched in 1999 is to create the infrastructure to facilitate the exploitation of the vast natural resources of Tibet and to encourage hundreds of thousands of unemployed Chinese workers to migrate to the inhabited areas of Tibet. This state-sanctioned population transfer is in violation of Article 49 of the 4th Geneva Convention. The initial influx of Chinese nationals destabilized the Tibetan economy. Forced agricultural modernizations led to extensive crop failures and Tibet’s first recorded famine (1960-1962), in which 340,000 Tibetans died. Tibetan farms and grazing lands have been confiscated and incorporated into collectivized and communal farms. Resettlement of Chinese migrants has placed Tibetans in the minority in many areas, including Lhasa, causing chronic unemployment among Tibetans. Official figures put the number of non-Tibetans in the TAR at 79,000. Independent research puts the figure at 250,000 to 300,000, and for the whole of Tibet at between 5 and 5.5 million Chinese versus 4.5 million Tibetans. In Kham and Amdo the Chinese outnumber Tibetans many times over.[18]

In addition to putting Tibetans at an economic disadvantage, the continuing migration of massive numbers of Chinese into Tibet progressively erodes the ability of the Tibetan people to hold on to their distinct cultural heritage and ethnic identity.

 

REASON 8: Major economic development decisions for Tibet are made in Beijing and benefit Chinese settlers and officials more than Tibetans

The Chinese central government has a stated goal of 10% economic growth per year for the Tibet region. According to the TAR Economic Planning Commission’s plan, the main thrust in the 1990s was “the exploitation of mineral resources”. Mining and other mineral extraction is the largest economic activity in both the TAR and Amdo provinces. China is also pushing to incorporate Tibet into its new market economy by boosting agricultural output. Traditional barley farming, suited to the climate, is diminishing as new crops favored by the Chinese are introduced.

Unfortunately, Tibetans are not, in general, benefiting from this increasing economic activity. More than 70 per cent of Tibetans in the TAR now live below the poverty line. New jobs and new wealth are largely channeled into Chinese hands. Chinese traders are favored by lower tax assessments. Chinese have the dominant positions in government administration and are paid bonuses for working in Tibet. The Western China Development Program encourages unemployed Chinese workers to migrate to the Tibetan plateau. A railway line being constructed to connect Lhasa and Central Tibet with China’s network of rail lines will speed both the influx of these Chinese migrants as well as the extraction of Tibet’s mineral reserves.

In 2003, the Los Angeles Times published a report from Tibet called “Tibetans fear strangulation by rail”. The report says, “Lhasa already has the look and feel of a Chinese city, with Chinese-style buildings and Chinese billboards proliferating across town. More than half the 200,000 residents here are believed to be Chinese. Even the main boulevard in front of the Dalai Lama’s holy Potala Palace is named Beijing Road. Most of the people flocking to the palace are Chinese tourists. Officials hope the new train will bring more of them to boost the local economy.”[19]

 

 

REASON 9: Tibet’s natural resources are being exploited and its environment seriously imperiled without regard to the wishes of the Tibetan people

China deprives the Tibetan people’s right under UN Resolution 1803 (XVII) 1962 to permanent sovereignty over their natural resources. Deforestation, uncontrolled mining, hydro-electric projects and nuclear waste dumping that seriously imperil the environment and do not support the interests of the Tibetan people is being carried out with impunity by Beijing and the Chinese authorities in Tibet. Between 1959 and 1985, the Chinese removed US$54 billion worth of timber from Tibet. An extensive road-building program is now opening up previously inaccessible areas of forest.

China’s primary nuclear weapons research and design facility was constructed in the Haibei Tibetan Autonomous Prefecture, Qinghai province and designed all of China’s nuclear bombs until the mid-1970s. China has admitted dumping high-level nuclear waste on the Tibetan plateau and a 20 square km dump for radioactive pollutants is known to exist near Lake Kokonor.

 

REASON 10: The Tibetan people are legally entitled to self-determination under international law

Even if Tibet had not been an independent state in 1950, the Tibetan people are nonetheless legally entitled to exercise their right of self-determination. Article 1(2) of the United Nations Charter declares that its purpose is “to develop friendly relations among nations based on respect for the principles of equal rights and self-determination of peoples.” Chapters IX XI, XII and XIII of the Charter embody the principles of self-determination and impose obligations on member states to respect peoples’ right to self-determination. This right is also set forth in the Universal Declaration of Human Rights, which is widely recognized as customary international law.[20]

The UN General Assembly has declared that “All peoples have the right to freely determine, without external interference, their political status and pursue their economic, social and cultural development, and every State has the duty to respect this right in accordance with provisions of the Charter”. The Tibetans are unquestionably a distinct “people” and, in 1961 and again in 1965, the UN General Assembly passed resolutions explicitly recognizing the Tibetan people’s right to self-determination.

Today the Tibetan people are one of the most endangered ethnic communities in the 21st century. The Tibetan people, with their distinct culture, religion, language and national identity, face the real and imminent threat of total assimilation and extinction. Tibetans, as a people, have the legal right to determine their political status and to pursue their own economic, social and cultural development. Only the restoration of a government and institutions freely chosen by the Tibetan people will end the abusive human rights practices and policies in Tibet. Through their rightful exercise of self-determination Tibetans have the chance to reclaim control of their own future.[21]

 

CASE FOR SELF-DETERMINATION

No-one disputes that the Tibetans are a distinct people with their own language and culture, who form a large majority of the population of Tibet. They do not control their own destiny. Tibet is controlled by the Chinese Government by means of military occupation for the benefit of the Chinese state. Tibet is a country under foreign military occupation, and its people are subject to alien subjugation, domination and exploitation” within the meaning of the UN Resolutions on Colonial Peoples and on Friendly Relations.

The severity of the repression the Tibetans have undergone at China’s hands, combined with the threadbare nature of China’s territorial claim to Tibet, mean that if the universal right of peoples to self-determination has any meaning it must extend to Tibet.

Tibet’s status has been given renewed topicality by the recent independence of Kosovo. Kosovo was an autonomous region of Serbia dating from when Serbia was a state within Federal Yugoslavia. About 90% of its population is ethnically Albanian, and so distinct from the Serbs who form the remaining 10% and the large majority of the population of Serbia as a whole. Kosovo had enjoyed some real autonomy in Yugoslavia but in the 1990s this was progressively reduced. Following a recommendation from the United Nations Special Representative, Martti Ahtisaari, a plan was devised for Kosovo’s independence, which was bitterly opposed by Serbia. Kosovo nevertheless declared independence on 17 February 2008. This has so far been recognized by 38 countries, including all of the Group of Seven industrialized countries.

The recognition of Kosovo would seem to extend the right of self-determination beyond the traditional colonial or foreign occupation situation. If Kosovo has a right to self-determination, the right of Tibet is infinitely stronger. The catalogue of gross oppression, the second class citizen status of Tibetans under Chinese rule, and the identity of Tibet as a country are all much clearer than in Kosovo’s case.[22]

 

SELF-DETERMINATION, AUTONOMY AND INDEPENDENCE

Self-determination need not mean independence. In many situations, autonomy within a larger nation state offers the best of both worlds, combining the benefits of being part of a large state in terms of defense, foreign relations and economic opportunity, with preservation of local laws, customs and culture from outside interference. Hong Kong is a good example.

The Dalai Lama has repeatedly said that he favors autonomy for Tibet within China, provided that it is meaningful autonomy. Such is his authority with the Tibetan people that they would probably support autonomy in any referendum in which he expressed support for it.

However unless there is a change in Chinese government thinking, real autonomy does not appear to be on offer. This is shown by the continuing aggressive denunciation and misrepresentation of the Dalai Lama by Chinese official spokespersons.

Unless real autonomy is offered, self-determination in Tibet is bound to mean independence. China may hold down the Tibetans by force for a long time, but, as the example of Ukraine and Russia shows, even hundreds of years of repression is unlikely to extinguish the longing for self-determination among what are, incontrovertibly, a people.[23]

CONCLUSION

Tibetans must have the right to self-determination, a point which has been supported by the United Nations and governments and parliaments. This is also in keeping with the publicly-expressed ideology and policy of both the Nationalist and Communist governments of China. Although Tibet’s historical and legal status as an independent nation cannot be disputed, it does not necessarily mean that the exercise of this right will lead to the separation of Tibet from China. If it serves mutual interest, two or more independent nations may join together out of their free will. This may indeed be the trend in the 21st century for economic and defense reasons.

Tibet’s uniqueness, if respected in practice as purportedly recognized by China, will be appreciated by the people of Tibet. The late Panchen Lama exhorted the Chinese leadership to follow a policy of winning the hearts and minds of the Tibetan people if Tibet was to remain a part of China. The Secretary of the Chinese Communist Party, Hu Yaobang, made a statement in 1984 which has some bearing on this point. Speaking to the Second Work Forum on Tibet, he asked that special respect be shown to Tibet.

This is also in-keeping with His Holiness the Dalai Lama’s statement in the Strasbourg Proposal, wherein he said that the final decision regarding the future of Tibet must be made by the people of Tibet. It is thus clear that the problem of Tibet must be resolved through the exercise of the right to self-determination by the people of Tibet. This is the only reasonable course, which enjoys widespread support from all quarters.

While implementing the right to self-determination the visions of His Holiness the Dalai Lama as well as the draft constitution proposed by the Chinese intellectuals must also be kept in mind. In determining their goals the Tibetans should not be obsessed with the policy of the present Chinese leadership to forgetting the opinions of the Chinese people as a whole and the economic and political developments taking place in the world today. When the right to self-determination of the Tibetan people is talked about, it means that this right accrues only to Tibetans and not the Chinese people residing in Tibet.[24]

REFERENCES

 

Books Used:

    Public International Law by Alina Kaczorowska 

    International Law by Malcom Shaw

 

Cases Referred:

    Burkina Faso v Republic of Mali (1986) ICJ Rep 554

    (1991) 92 LLR 168

 


[1] http://en.wikipedia.org/wiki/Self-determination

[2] http://www.iwgia.org/sw228.asp

[3] supra note 1

[4] Id.

[5] supra note 1

[6] Id.

[7] (1986) ICJ Rep 554

[8] (1991) 92 LLR 168

[9] Kaczorowska Alina, PUBLIC INTERNATIONAL LAW, Old Bailey Press, London, 1st ed., 2002, p.332-333

[10] Smith Daniel, SELF-DETERMINATION IN TIBET:THE POLITICS OF REMEDIES, http://www.canonymous.com/press/ecritique2/part3.html

[11] Id.

[12] http://www.tibetjustice.org/reports/sovereignty.pdf

[13] supra note7

[14] http://www.tibet.com/China/dissidents.html

[15] http://www.c100tibet.org/Self-Determination_Reasons.html

[16] Id.

[17] supra note 15

[18] Id.

[19] supra note 15

[20] Id.

[21] supra note 15

[22]Harris Paul, IS TIBET ENTITLED TO SELF-DETERMINATION, http://www.webb-site.com/articles/tibetharris.asp

[23] Id.

[24]Wandi Tashi Kungo, SELF-DETERMINATION AND THE TIBETAN ISSUE, http://tibet.dharmakara.net/TibBull-TibRef4.html

LEGAL IMPORTANCE OF GSI AND IBM IN CONSERVATION AND DEVELOPMENT OF MINES

The Ministry of Mines is responsible for policy in relation to mineral wealth of the country (excepting coal and petroleum minerals and atomic minerals), and for the regulation of mines and minerals to the extent provided by legislation of Parliament.  The guiding legislation in this respect is the Mines and Minerals (Development and Regulation) Act, 1957.  The Ministry has under its administrative control the Geological Survey of India (GSI), a 158 year old institution headquartered at Kolkata and the Indian Bureau of Mines (IBM) headquarters at Nagpur.  The Ministry of Mines is also the administrative Ministry for three Public Sector Undertakings, viz. National Aluminium Corporation Limited (NALCO), Hindustan Copper Limited (HCL) and Mineral Exploration Corporation Limited (MECL).

The Geological Survey of India (GSI) was set up in I85l, initially with the objective of locating coal for the railways. GSI over the years has expanded its role to undertake investigation of the geological set up of the country, including assessment and regional level exploration for coal and other mineral resources.  GSI’s activities may be grouped as ‘Geoscientific baseline data’ which includes geological surveys and mapping; ‘Mineral Resource Assessments’’ which includes ferrous and nonferrous minerals, coal & lignite etc. ‘Special Studies’ which includes Natural hazards studies, Climatic studies, Geotechnical studies etc, and ‘Geoinformatics’ which include publication of Maps and  Reports and generation of spatial information through GIS and related software for a variety of applications in developmental and regulatory situation as well in the commercial sphere.

Under the National Mineral Policy (NMP) 2008, Geological Survey of India remains the principal agency for geological mapping and regional mineral resources assessment of the country. The NMP seeks to ensure that GSI programmes are prioritized in line with the national policy goals and are chalked out after taking into account the exploration work undertaken by the private sector for which the existing arrangement of programme formulation through the Central Geological Programming Board (CGPB) would be revamped. NMP envisages strengthening the Geological Survey of India with manpower, equipment and upgraded skill sets.

The Indian Bureau of Mines (IBM) established in 1948, is a multi-disciplinary government organisation under the Department of Mines, Ministry of Mines, engaged in promotion of conservation, scientific development of mineral resources and protection of environment in mines other than coal, petroleum & natural gas, atomic minerals and minor minerals. From a small beginning as a purely advisory body, the IBM has emerged into a premier national organisation involved deeply into the various aspects of the mineral industry. The current functions of IBM include promoting conservation of mineral resources by way of inspection of mines, geological studies, scrutiny and approval of mining plans and mining schemes, conducting environmental studies and environment related activities, evolving technologies for up gradation of low grade ores and identifying avenues for their utilisation, preparation of feasibility reports for mining and beneficiation projects , preparation of minerals maps and National Mineral Inventory of minerals resources; providing technical consultancy services  to  mineral  industry,  and functioning as a data bank for mines and minerals, and preparing of technical and statistical publications. Headed by the Controller General, IBM has six technical divisions with its head quarters at Nagpur. There is a Modern Mineral Processing Laboratory and Pilot Plant established with the assistance of United Nations Development Programme at Nagpur. IBM has 3 Zonal Offices, 12 Regional Offices and 2 Sub-Regional Offices, 2 Regional Ore Dressing Laboratories and Pilot Plants spread over the Country.

 

GSI AND IBM: A BRIEF HISTORY

1. GSI:

 

1821 First Geological Map of parts of India was of Hyderabad region by Dr H. W. Voysey

1840 Museum of Geology established in Calcutta in three rooms of Asiatic Society of Bengal

1846 D. H. Williams of British Geological Survey appointed geologic advisor to the East India Company for the purpose of carrying out geological survey of three coal bearing districts. He developed a number of deposits in Raniganj, Jharia and Karanpura coal fields.

1851 Thomas Oldham arrived in Calcutta on 4th March and took charge of office on 5th March, 1851, which marks the establishment of the Geological Survey of India.

1854-55H. B. Medlicott establishes three fold subdivision of the Vindhyans 
1857 H. B. Medlicott surveys Himalayan Ranges between Ravi and Ganges and lays down the foundation of Himalayan Geology.

1858-60 Geological map of the Ranigunj coal fields by W. L. Wilson published. This is the first geological map of 1″ = 1 Mile published by the Geological Survey of India.

1860 J. G. Medlicott recognises three principal subdivisions of the coal bearing series and applied the names Talcher, Damuda and Mahadevas.

1873 Ram Singh becomes the first Indian to join Geological survey of india (as an apprentice)

1877 Geological Gallery in the new Indian Museum was thrown open to public on January 1

1892 Geology Classes started in Presidency College, Calcutta with T. H. Holland as the first part time professor of Geology.

1911 Revised Geological Map of India in 1″= 32 Mile scale was published under H. H. Hayden

1921-33 E. H. Pascoe’s “Manual of Geology of India” published in four volumes

Some of the major memoirs published in the period 1921-35:

  • C. S. Fox’s memoir on the Gondwana system and the lower Gondwana coalfields of India
  • E. R. Gee: Geology and coal reserves of Ranigunj Coalfields
  • J. B. Auden’s Vindhyan Sedimentaion in the Son Valley
  • H. C. Jones Iron Ore deposits of Bihar and Orissa.
  • L. L. Fermor’s Mineral Resources of Central Provinces of Bihar and Orissa.
  • D. N. Wadia’s Geology of Poonch State (Kashmir) and Syntaxis of the Northwest Himalaya

2. IBM:

Indian Bureau of Mines was set up on 1st March, 1948. Initially IBM functioned purely as an advisory body. It helped government in framing various rules like Mines & Minerals (Regulation & Development) Act, 1948, Mineral Concession Rules, 1949 and Petroleum Concession Rules, 1949.IBM was given a set of functions in 1950 and in accordance with it, the inspection of mines and mineral prospects became a regular activity. By 1953 IBM was given an additional function of undertaking detailed exploration of mineral deposits. Among the minerals explored by IBM were Iron Ore, Limestone, Dolomite, Coal, Copper, and Tungsten. Later Mineral Conservation & Development Rules, 1955 and Mining Leases (Modification of Terms), 1956 were framed. An ore dressing laboratory was set up at Delhi in 1955. With the passage of time the activities of IBM grew in depth and extent like Technical Consultancy and preparation of mineral maps leading to complete inventory of mineral resources. With its pool of mining engineers, geologists and ore dressing engineers it covered a wide variety of needs of the mining industry. Various publications related to mining and mineral industries were brought out. Offices were set up in the different parts of the country close to major mining centers.  In the last decade, with the change in the policy of Government, two very important activities were undertaken by IBM. The first being the processing and approval of mining plans and schemes of mining for all the mines in the country and second one being the implementation of rules for the protection of environment . IBM accepted this challenge and has been successful in promoting the awareness about protection of environment in the mines through the “Mines Environment & Conservation Week”. IBM also started imparting training to the industry personnel in the preparation of mining plans and also in the other fields. Modern Mineral Processing Laboratory, Analytical Laboratory and Pilot Plants were set up at Nagpur, Ajmer and Bangalore.IBM lost no time in realising the potential of information technology and entered into the agreement with BRGM of France in setting up “Mineral Resources Intelligence System” and “Technical Management Information System” in HQ and its 3 zonal & 12 regional offices. In a nutshell, the IBM has been able to promote awareness amongst all sections of the mining industry, necessity and advantages of systematic mining and conservation of minerals and protection of environment..  The results of its ore dressing investigations have formed the basis of new commercial beneficiation plants and thus enlarged the mineral resource base. The IBM’s clientele seeking technical consultancy covers a wide spectrum of small and large mines and many public sector organisations. IBM has been able to provide useful information to the industry through its publications and has been recognised as the Mines and Minerals Data Bank of the country.

FUNCTIONS OF GSI AND IBM

 The New Charter of Functions of Indian Bureau of Mines is as follows:

  1. To promote systematic and scientific development of mineral resources of the country (both onshore and offshore)
  2. To approve mining plans, schemes and mine closure plans having regard to conservation of minerals and protection of environment.
  3. To collect, collate and maintain database on exploration, prospecting, mines and minerals and to bring out publications / bulletins highlighting the problems and prospects of mining industry.
  4. To play a pro-active role in minimising adverse impact of mining on environment by undertaking environmental assessment studies on regional basis.
  5. To conduct suo moto techno-economic field studies in mining , geology, mineral processing and environmental aspects including analysis of ore and minerals and to promote R & D activities in these areas.
  6. To provide technical consultancy services on promotional basis within the country and abroad in the field of mining , geology, mineral processing and environment.
  7. To provide training to the scientific, technical and other cadres of the department and persons from the mining industry and other agencies for human resource development.
  8. To advise the Government on matters in regard to the mineral industry , relating to environment protection and pollution control, export and import policies, trade, mineral legislation, fiscal incentives and related matters.
  9. To promote awareness about conservation , systematic and scientific development of mineral deposits and protection of environment including restoration and rehabilitation of mined out areas through exhibitions and audiovisual media.

10.  To promote and monitor community development activities in the mining areas.

11.  To undertake any such other activity as may become necessary in the light of the developments in the field of geology, mining, mineral beneficiation and environment.

  

GSI: COMPENDIUM OF ACTIVITIES

Surface Mapping

  • Systematic Geological Mapping
  • Specialised Thematic Mapping
  • Geochemical Mapping
  • Geophysical Mapping
  • Aero geophysical Mapping

Offshore Survey and Exploration

  • Systematic Survey of Exclusive Economic Zone and beyond
  • Systematic Survey of Territorial Waters
  • Mineral Resource Survey
  • Coastal Environment Survey
  • Legal Continental Shelf Survey
  • Recognition and mapping of magnetic and gravity anomalies in sea bed
  • Marine Geo-techniques

 

Mineral and Energy Resources Exploration

 

Engineering Geology and Geotechnical Investigations

  • Hydroelectric and Irrigation projects
  • Communication Projects
  • Gas and oil pipelines
  • Slope stability
  • Land subsidence

Sponsored Schemes

  • Water Resources Development projects like irrigations, hydel power etc.
  • Communication projects, particularly road/rail alignment in mountain regions and bridges
  • Engineering constructions and miscellaneous projects
  • Geotechnical evaluation of major river basins.

Geoenvironmental and Fragile Ecosystem

  • Land use capability
  • Urban Geology
  • Agro-geology including rapid top soil erosion
  • Geo-ecology
  • Desertification

 

Geo-environmental Studies include

  • Environmental resource appraisal
  • Studies on environmental impact, mitigation of effects of urban development
  • Global change programme

Shallow Subsurface Geology

  • Regolith Geology
  • Shallow Subsurface Geology and Drilling up to 300 metres
  • Drill Core Library and Documentation of cores

Geology of Water Resources

  • Glaciological Studies
  • Major Geo-hydrological Cycles
  • Water Quality Assessment
  • Response of water regimes of climate change 
  • Problems of Seawater Incursion 

Geological Hazards

  • Seismology, Seismotectonics and Seismic Microzonation
    1. Active Fault Studies
    2. Seismic microzonation studies of major urban/industrial complex
    3. Observational seismology for earthquake monitoring
  • Landslides, Landslide Zonation and Avalanches
  • Floods and palaeo-floods, Coastal Zone Hazards
  • Studies on volcanism

Studies on geological health-hazards (arsenic, fluoride in ground water) and medical geology.

Research & Development

  • Crustal Evolution
  • Metallogeny
  • Geodynamics of Indian Plate and its consequences
  • Climate change and responses of Environmental System-past and future
  • Deep continental studies including deep drilling
  • Evolution of sedimentary basins through space and time
  • High resolution stratigraphy and Palaeo-biology
  • Geomorphology, Quaternary geology, neo-tectonics, Palaeo-seismology
  • Meteorites and extra-terrestrial material
  • Geosciences instrumentation 
  • Studies in Antarcticas. 

Information Services and Education

  • Development and dissemination of geo-scientific databases
  • Map Compilation
  • R&D partnerships with academic institutions and laboratories
  • Museums
  • Public Awareness and school education Programme
  • Publication
    1. Soft Copy Conversion of Reports and Maps
    2. Map compilation and Printing
    3. Publication
    4. Customisation of data packages
    5. Participation in ‘National Spatial Data Infrastructure’ (NSDI)
    6. Creation of Organizational Information Infrastructure involving GSI Intranet and Enterprise Information Portal
    7. Curatorial Activity

Mass Communication.

Commercial Activity

  • Technical Consultancy
  • Business Development
  • Commercial ventures and partnerships in India and abroad

Human Resource Development

  • Departmental Training Programme
  • Extra Departmental Training
  • Training abroad for nucleating groups in challenging thrust areas and priority areas
  • Training of outsiders in GSI

International Activities

  • Organization of International Symposium
  • Participation in IGCP
  • Bilateral Correlation Programme
  • Geo-scientific Study in Antarctica

Vigilance Administration

  • Property Statement Returns
  • Addressal of Complaints 
  • Review and Monitoring

 

ORGANISATION STRUCTURE

GSI: The GSI with the Director General as its head functions under the Ministry of Mines (MOM). The Director General has the overall responsibility of planning, programming, financial and material management of the organisation. The responsibility of overall monitoring of scientific activities, dissemination of information and advice to Govt., public and private entrepreneurs also rests with the Director General. There are six Regions (geographically based), three specialised Wings (activity based) and Training Institute, besides the Central Headquarters. The Senior Deputy Directors General/Deputy Directors General are at the helm of affairs in these Regions/Wings.

Besides having functional Units in the respective headquarters, each of the Regions comprises State based Operational Units. The specialised Wings also comprise sector wise functional Units in addition to the headquarters set-up. The Training Institute, located at Hyderabad, has satellite-training centres in different parts of the country.

The primary functions of collecting the basic geological information is carried out by GSI through its Divisions/Projects. Clusters of such Divisions and Projects, normally headed by Directors are located at the Regional and Operational offices and in many outlying stations, totalling 33 cities/towns in the country. These Divisions/Projects are manned by scientific officers, who constitute the field parties actually engaged in data collection at the ground level and in laboratories, synthesis and preparation of reports and publications.

The support activities to the geological investigations are provided by complementary divisions like geophysics, chemistry, drilling, mechanical engineering, materials management, finance and administration. Each of these establishments is based at Regional or Operational offices.

IBM:

JURISDICTION OF ZONAL OFFICES:

ZONE REGIONS
Central Bhubaneshwar, Jabalpur, Kolkata (Guwahati sub-region), Nagpur, Ranchi
North Ajmer, Dehradun, Udaipur
South Bangalore, Chennai, Goa, Hyderabad

 

SERVICES

GSI:

Through its existence of more than 155 years, Geological Survey of India has gathered immense expertise regarding various aspects of geoinformation management and has generated voluminous amount of geoscientific data through its relentless field surveys and laboratory studies. GSI disseminates these information in the form of maps, publications and unpublished reports. GSI had always catered to the needs of the Govt. departments /enterprises, academicians and public entrepreneurs in the mineral, industrial, infrastructure, urban and environmental planning sectors.

The opening up of the mineral and mining sectors following the announcement of New Mineral Policy and amendment of MMDR Act, 1993 by the Govt. of India had resulted in burgeoning interest of national and multinational companies in the Indian mineral sector. Moreover, the last two decades saw a large number of infrastructural projects seeking geotechnical input from GSI. Consequently, the demand for quality geoscientific services increased manifold. GSI promptly responded to this new challenging scenario and donned the garb of a facilitator in the mineral development sector in addition to its primary responsibility of generation and upkeep of geoscientific database of the country. The commercial arm of GSI, the Technical Consultancy Services (TCS) divisions were thus set up in GSI, first at the Central Headquarters in 1993 and subsequently in the Regional Headquarters.

The mandate of TCS division is to liaison / negotiate with sponsors / clients, prepare MoUs for collaborative / sponsored programmes, evaluate and price the existing technical (unpublished) reports, maps and other databases, either on the basis of approved Schedule of Charges or on the basis of actual expenditure incurred by the department. Monitoring of the Internal Resources Generation by GSI is also attended by the TCS divisions. The Regional TCS divisions perform a similar role within their jurisdiction.

GSI provides technical consultancy, data and services to prospective investors and agencies, both national and multinational on different commodities and aspects. (Data on the restricted areas are provided subject to the clearance from Ministry of Defence/ Survey of India as per instruction of the GOI).

IBM:

Technical Consultancy: T.C. Division is headed by the Controller of Mines and is located at Nagpur. It offers Technical Consultancy services to mining industry in surveying, exploration, geology, mining feasibility studies and environment related issues. With the sole objective of promoting the development of mineral industry very nominal fees are charged for consultancy assignments with special concession to small entrepreneurs..The division is well equipped with trained personnel and latest computer facilities (SURPAC-2000 and Arc-Info) for deposit evaluation, project costing, and financial analysis etc.

Mining Research: The Mining Research Cell undertakes research investigations on geotechnical projects and environment related issues, both on promotional and consultancy basis.).A mobile environmental monitoring lab with state-of-the-art equipment for air quality measurements is in operation.

Mineral Processing: The Ore Dressing (OD) division has been carrying out R&D studies in the field of Mineral Benificiation since its inception in 1960.

Its Modern Mineral Processing Laboratory , Pilot Plant and Analytical Laboratory Complex establised at Nagpur with the assistance of United Nations Development Programme is well equipped with state-of-the-art facilities to carry out R&D studies in the field of mineral beneficiation, mineral characterisation, analysis of ores, minerals & ore dressing products as well as environmental samples. The Environmental Laboratory is recognised by Central Pollution Control Board & Maharashtra State Pollution Control Board. The Bureau has created region wise facilities in mineral testing, beneficiation & analysis of ores and ores by opening Regional Ore Dressing Laboratories and Pilot Plants at Ajmer and Bangalore which are also well equipped. 

Computerised Information:

The Computerised information, on the following is available with Indian Bureau of Mines.

1. 1. NATIONAL MINERAL INVENTORY

2. 2. ALL – INDIA DIRECTORY OF MINING LEASES

Software Development: The Indian Bureau of Mines has developed databases in collaboration with BRGM, France on mines and minerals. These databases include information on national mineral inventory, mining leases, production from mines and employment, export and import of minerals, consumption of minerals in various industries, technical information regarding working of mines, etc. The Computer Centers of Indian Bureau of Mines located at each regional, zonal and divisional office are connected with each other using wide area network (WAN). These highly sophisticated centers are managed by skilled team of technical personnel.

Training: The Training Centre of Indian Bureau of Mines started functioning from 1st July 1977 on the recommendations of the Committee for Administrative Reforms, Government of India. Till the year 2006-07, Training Centre has conducted 435 In-house & Structured training programmes which includes training for IBM Personnel, Industry Personnel, Foreign Nationals. Also, as per the recommendations of Task Force Report for the Development of Mineral Industry, North Eastern Personnel were imparted on the job training. So far, about 5114 IBM Personnel, 3826 Industry Personnel, 335 North Eastern Personnel and 9 Foreign Nationals were benefited by undertaking various trainings. The Central / State Government Organisations and Undertakings, Major Private Mining Industries and other individuals are the main beneficiaries of trainings

LEGISLATIVE FRAMEWORK: 

National Mineral Policy: The success of the national mineral policy will depend largely on a national consensus to fulfil its underlying principles and objectives.

The Geological Survey of India is the principal agency for geological mapping and regional mineral resources assessment of the country and its exclusive economic zone and shall be responsible for drawing up action oriented plans in close co-operation with all other agencies engaged in this task. Co-ordination of the exploration work is at present being done by the Central Programming Board of the Geological Survey of India. Policy parameters are generally discussed in the State Ministers Conference, Planning Commission and the Mineral Advisory Council. The existing arrangement shall be reviewed periodically with a view to bringing about co-ordination among the survey and exploration agencies and to ensure planned mineral development.

The national inventory of mineral resources including those of ocean bed will be based on a comprehensive review of exploration data. These along with the relevant geological data and mineral maps shall be maintained and updated from time to time by the Indian Bureau of Mines as per the uses and specifications in industrial and other applications. The Indian Bureau of Mines shall continue to compile and provide access to the latest information in respect of mineral resources in the country available for exploitation and endeavour to convert the physical inventory of mineral resources into resource inventory. A periodical review of the system of classification of inventory of mineral resources shall be carried out incorporating the changes in their industrial and other applications. The grades of various minerals shall be standardised with reference to end use applications and periodically reviewed.

Research organisations, including the National Mineral Processing Laboratories of the Indian Bureau of Mines should be strengthened for development of processes for beneficiation and mineral and elemental analysis of ores and ore dressing products. There shall be co-operation between and co-ordination among all organisations in public and private sector engaged in this task. Research organisations, including the National Mineral Processing Laboratories of the Indian Bureau of Mines should be strengthened for development of processes for beneficiation and mineral and elemental analysis of ores and ore dressing products. There shall be co-operation between and co-ordination among all organisations in public and private sector engaged in this task. 

Mines & Minerals(Development & Regulation) Act,1957: The Mines and Minerals (Development and Regulation Act, 1957, (‘MMDR’) and the Mines Act, 1952, together with the rules and regulations framed under them, constitute the basic laws governing the mining sector in India.

Mineral Conservation & Development Rules,1988: Mineral Conservation and Development Rules, 1988 lays down guidelines for ensuring mining on a scientific basis, while at the same time, conserving the environment. The provisions of Mineral Concession Rules and Mineral Conservation and Development Rules are, however, not applicable to coal, atomic minerals and minor minerals.

Mineral Concession Rules, 1960: The Mineral Concession Rules, 1960 outline the procedures and conditions for obtaining a Prospecting Licence or Mining Lease. 

Guidelines for submission of returns under MCDR,1988 

Proformae of returns to be submitted under MCDR,1988

 ABANDONED MINE SITES

IBM had identified abandoned / orphaned mines which had been left un-reclaimed prior to the promulgation of rules about Mine Closure Plan in April, 2003. Through a special study at national level, 297 abandoned mine sites were identified. Out of the 297 abandoned mine sites, IBM identified 106 abandoned mine sites belonging to Public Sector Undertakings, major and other private sector companies requiring reclamation / rehabilitation. Out of the above 106 sites, 22 mine sites become operational again, thus requiring reclamation and rehabilitation in respect of 84 abandoned sites only.

VIGILANCE ADMINISTRATION:

6.1. GSI: Anticorruption measures of the Central Government are the responsibility of 1) Administrative Vigilance Division in D.O.P.T. 2) Central Bureau of Investigation 3) Vigilance Units in the Ministries/Departments of Government of India, Central Public Enterprises and other autonomous organizations, 4) Disciplinary Authorities and 5) The Central Vigilance Commission. The Central Vigilance Commission acts as an apex organization for exercising general superintendence and control over vigilance matters in administration and probity in public life. Vigilance Administration in GSI, a subordinate Department under Ministry of Mines, Government of India, is headed by a Chief Vigilance Officer, who acts as a liaison between the Department and the Central Vigilance Commission, and the Ministry and also between Department and the Central Bureau of Investigation.

The Chief Vigilance Officer in GSI is appointed in consultation with the CVC. The post being an ex-cadre post, senior officers from the Central Govt. Departments are normally appointed on deputation in GSI. The Chief Vigilance Officer heads the Vigilance Administration and acts as an advisor to the Director General, GSI, in all matters pertaining to vigilance. Vigilance functions carried out by the CVO include, collecting intelligence about the corrupt practices committed, or likely to be committed by the employees of the organization, investigating or causing an investigation to be made into verifiable allegations reported to him/her; processing investigation reports for consideration of the Disciplinary authorities referring the matter to the Central Vigilance Commission wherever necessary; taking steps to prevent commissioning improper practices/misconduct etc. Thus, the CVO’s functions can broadly be divided into three parts (i) Preventive vigilance (ii) Punitive vigilance and (iii) Surveillance and detection. While surveillance and punitive action are for commission of misconduct and other malpractices, the preventive measures taken by the CVO are considered more important as these are meant to reduce the number of vigilance cases considerably. Geological Survey of India being an all India organization has six Regional offices, three Operational Wings and one Training Institute, besides Central Headquarters. Vigilance Administration too, is therefore, decentralized and the Regions/Wings/Institute also has one vigilance unit each for effectively carrying out vigilance administration in GSI. While the vigilance set up in CHQ is headed by the CVO, who is assisted by the Vigilance Officer, an Administrative Officer and the Jr. Investigating Officer, in the other regional offices/wings/Institute, it is headed by a part time Vigilance Officer each, who in turn is assigned this job, by the Director General, GSI in consultation with the CVO.

The Vigilance Officers of Regions/Wings/Institute carry out the job of vigilance administration as per the guidelines provide by the CVO. These Vigilance Officers also provide advice to the various Disciplinary Authorities of the respective Regions/Wings/Institute. Following is the list of officers in Vigilance Administration in GSI. The Vigilance Officers of different Regions/Wings/Institute performs their duties as an extension of the office of CVO in their respective regions/wings/institute and in addition work as advisors to the Disciplinary Authorities viz. Dy. DG & HOD for the Gr.-‘C’ employees and RAO/HO for Gr.-‘D’ employees. The CVC provides necessary guidelines for effectively carrying out vigilance administration in Govt. of India department through various circulars/directives.

As per CVC direction any body who has any complaint what so ever regarding corruption in GSI, is free to lodge a complaint to either the CVO, GSI or the DG, GSI or the CVC, New Delhi, in the following address. In case the complainant does not want his/her name to be revealed he/she may request for the same and utmost care shall be taken to conceal his/her identity under the “Public Interest Disclosure Resolution” of the CVC.

IBM:

IBM is committed to maintain highest standard of ethics and integrity. If anybody of the office asks for bribe or if there is any information on corruption in this office or if anyone is a victim of corruption then a complaint can be lodged.

RECENT CASE LAWS [MCDR 1988](2009-2010):

GANESH BHANDER(35.2H) ADITYA MINERALS & METALS case filed by state of Rajasthan on 10/09/2009 for violation of rules:

Rule23B(2)

Rule 23B(2)

Rule 23B(2)

Rule 23F(3) 

Case filed by state of West Bengal against mine owner Kaliabasa Rathindra Nath Sengupta on 16/02/2009 for violation of rules 12(2) and 12(3).

 Case filed by State of Uttar Pradesh against the mine owner Goldi Munshiram Chawla on 18/05/2009 for violation of rule 12(3). 

Case filed by State of Andhra Pradesh against the mine owner Naltooru on 06/04/2009 for violation of rule 12(3). 

Case filed by State of Jharkhand on 29/06/2009 against the mine owner Kunderkocha Gaurav Agarwal for violation of rules 45(1) (a), 12(2) and 12(3). 

Case filed by State of Rajasthan against Kusalpura Suresh Chand Jain on 31/08/2009 for violation of rule 12(3). 

Case filed by State of Uttar Pradesh against Savitri Munshiram Chawla on 18/05/2009 for violation of rule 12(3).

RIGHT TO INFORMATION ACT IN RELATION TO GSI AND IBM: 

Information as required under section (4)(1)(b) of the Right to Information Act, 2005 the particulars of its organisation, functions and duties of IBM and GSI are available to the public as they are obliged to do so being an public organisation.

CONCLUSION AND SUGGESTIONS: 

An understanding of the Earth and its geological history is the key to an ecologically sustainable development of the planet’s resources. To have an understanding of the Earth and its system, fundamental research in the fields of petrology, geochronology and isotopegeology, neotectonicsand seismotectonics, palaeontology, stratigraphy, and remotesensing is essential and integrating inputs derived from these fundamental geosciences disciplines is necessary to develop a better assessment of the various processes shaping and affecting the Earth. And the role of GSI & IBM comes into light.

After thoroughly analysing the role of GSI and IBM from a legal perspective and their role of importance in this project certain recommendations is suggested:

To identify critical areas in field of geosciences in short-medium-and long-term periods and develop strategies to enable the challenge to be addressed.

Work out priorities for GSI and IBM over the next 5, 10 and 20 years periods.

Development and utilization of platforms of interaction/collaboration with other national and International organizations

To suggest changes, on continuous basis about infrastructural changes, skill mix and integrative approach to enable GSI and IBM to meet challenges.

TRIPS AND DEVELOPING COUNTRIES

INTRODUCTION

Thomas Jefferson quoted, “If nature has made any one thing less susceptible than all others of exclusive property, it is the action of thinking power called an idea[1]. But the technological advances of the modern times have not even left this one thing free. Even thinking processes are being commercialised and converted into intellectual property. The developed countries with immense resources at their disposal were the ones who pushed the demand for greater protection of intellectual property as they saw vast possibilities of appropriation of profits from such a property. Thus, an idea too began to be patented and protected. This gave rise to a `rat race’ between the Multinational National Corporations (MNCs) to increase the scope of their R&D activities and invent new products. Developed nations such as the U.S.A. where most of these MNCs are located too tried to develop an international policy which would enable these companies to expand their market base globally and to find ways of creating a monopoly market by way of protection given by the Intellectual Property Rights. Thus, efforts on the part of the developed countries began to strengthen the IPR protection. This led to various Conventions and finally materialized in the Trade Related Intellectual Property Rights or the TRIPS agreement[2]. Certainly, there are both strong advocates and strident critics of a global intellectual property regime. Advocates envision a flowering of innovative activity in developing countries and stronger supports for international technology markets. Critics see higher prices for patented medicines, restricted access to new seed varieties and the potential for monopolistic and abusive technology licensing practices. Generally, the critics far outnumber the advocates. But in reality, TRIPS Agreement is not that monstrous as it is projected to be. Although, it has led to the creation of monopoly markets and hence has led to price rise, making the patented goods almost impossible to fit into the consumption basket of the common man, the huge amount of benefits it is bestowing on the developing economies cannot be overlooked. If we weigh its pros against its cons then definitely the former will prevail. Moreover, by only criticizing this agreement and bringing into limelight solely its negative side then its very purpose would stand defeated. As the above discussion suggests, this paper attempts to present a more humane and just analysis of the Agreement which the developing nations love to hate.

TRIPS: THE GENESIS

After the Second World War, the U.S.economy tumbled. Negative consequences were very much evident at the end of the war. To a significant extent, this spurred the U.S.A. to pursue international multilateral cooperation. In this background the GATT or General Agreement on Tariffs and Trade was negotiated.  GATT was not an international organisation but was a legal entity in its own right.  GATT aimed at regulating trade at the international level. Its objective was to fully utilise and develop the resources of the world and the expansion of production and exchange of goods besides reciprocal and mutually advantageous arrangements involving a substantial reduction of tariffs and a progressive elimination of other barriers to trade[3]. But, the GATT remained unsuccessful in achieving its objectives. Though it was successful in moving countries to liberalise trade and to cooperate, its principles were often bent and regulations circumvented. Its dispute-solving mechanism was weak as it was only an inter-governmental body and had no legal status[4]. It was then increasingly felt by both the developed and developing nations that some sort of an institutional mechanism was needed to safeguard their position. This led to the Uruguay Round and finally the establishment of The World Trade Organisation (WTO) and the signing of the TRIPS Agreement in 1994[5]. The WTO is the legal and institutional framework of multilateral trading system as redefined and extended by the Uruguay Round of trade negotiations[6]. The WTO is quite unique in the family of international organizations not because of the wide scope of contractual obligations but because it is binding and enforceable through the integrated dispute settlement process. The WTO is thus not the usual `best-endeavours’ organisation. Hence, in the WTO there is no backing out without any retribution and the participation in the rule-making process is important[7]. There are three pillars of  the WTO- the first is the revamped version of the GATT, the second pillar is the new agreement on trade in services or GATS and the third pillar is the TRIPS Agreement. The purpose of the TRIPS, in a broad sense is to stimulate research and development by granting owners of intellectual property exclusive rights for a limited period of time[8]. The reason for the inclusion of the IPRs in the negotiations at the Uruguay Round was the significant increase in the International Trade in goods during the Eighties. A number of industrialised countries felt threatened that as a consequence of weak protection extended to the IPRs their interests would be adversely affected. Hence, a demand for strengthening of protection to the IPRs was voiced. Several attempts such as the Paris Convention on Industrial Property and the Berne Convention on Literary and Artistic Works were made in the 19th Century to cover the issue of IPRs under the ambit of the international law. Both treaties were administered by World Intellectual Property Organisation (WIPO)[9]. In the 1970s developing countries sought to obtain more flexibility in the application of the provision of the above –mentioned treaties so as to secure greater access to foreign technologies with a view to promoting their economic and social development.  These efforts led to the revision of Paris Convention in 1971. Similar efforts were made in order to bring about a revision of the Berne Convention where the developing countries called for a loosening of the copyright protection[10]. These conventions indicated that an atmosphere was created for the demand of stronger protection to IPRs. This along with other factors such as the growing competitiveness of newly industrialized developing countries in the manufacturing sector, the increasing globalization of the market place and the growing perception of intellectual property by the enterprises of the developed countries as a strategic asset contributed to the successful culmination of the TRIPS Agreement. TRIPS was a result of a number of negotiations which continued over a span of almost 20 years from Punta Del Este to Marrakesh. The idea of TRIPS was first mooted at the GATT meeting of trade ministers at Punta Del Este in Uruguay in 1986 and was formally concluded in April 1994 at Marrakesh, Morocco along with the other negotiations of the Uruguay Round[11]. When this round got underway, 14 negotiationg groups were established under the group of negotiation on goods, including the negotiating group on Trade related aspects of intellectual property rights. The draft of this agreement popularly known as the Dunkel Draft was heavily criticized by India as it led to the elimination of all options. Eventually, given the complexity, ambiguity and relative novelty in international law of several of the provisions of the TRIPS under the Dunkel Draft, all members were given one year from the entry into force of the WTO and TRIPS, to implement its provisions. It was also agreed that all other provisions of the TRIPS could be delayed by the developing countries upto January, 2000. Product patent protection for areas of technology not so protected by January 1995 could be delayed for a further period of five years, upto January 2005[12]. It is by far the most wide-ranging and far reaching international treaty on the subject of Intellectual Property to date and marks the most important milestone in the development of law in this area. Apart from being the first international intellectual property agreement to dramatically increase the level of minimum standards of such law, TRIPS is also the first international intellectual property law agreement[13] :

i)                    that obliges, in a single undertaking, new standards on as many as seven types of IPRs

ii)                  to be included as a part of the rules governing the multilateral trading system, thus marrying trade law and jurisprudence with intellectual property law, particularly making applicable to the swift and effective dispute settlement process of the WTO, which can impose trade penalties on members violating the agreement.

iii)                That includes fairly detailed standards for domestic enforcement of IPRs, both internally and at the border.

iv)                That covers new subject matter under existing types of intellectual property, at least for some developing countries such as product patents for food, pharmaceuticals, chemicals etc[14].

The TRIPS Agreement was a novel concept introduced in the arena of the IPRs. It had been materialised after a long period and after many controversies. Hence, problems in its implementation were inevitable. The developing countries since its inception were hesitant in adopting the TRIPS regime because compliance with it required amendments and modifications in their existing laws. This paper will further delve in to a detailed analysis of the effect of the TRIPS Agreement on the developing nations.

TRIPS and Developing Nations

TRIPS provides minimum standards for the protection of intellectual property rights or IPRs but does not envisage harmonization of these rights among all WTO members. The demand for the inclusion of intellectual property in the Uruguay Round was mainly put forth by the developed countries such as the U.S.A., EU, Japan etc[15].  Although, one of the reasons for the inclusion of the subject in trade negotiations may well have been the attractiveness of the trade enforcement mechanism, the trade forum was more importantly seen as one in which the chances of making progress from their perspective was higher because of the possibilities of making trade-offs with other areas. Though, the demand was put forward by the developed countries it was also supported and approved by the developing nations. Even if not all developing countries participated in these negotiations in equal measure, it would be fair to say that the developing countries’ perspective was represented[16]. The TRIPS Agreement continues to be the generally accepted point of reference for the protection that countries should give to the intellectual property of others. But, this does not make it immune from criticism. This agreement has been the subject of dual criticism. Developed countries question its effectiveness in providing adequate protection to their intellectual property rights and the developing countries find compliance with the TRIPS Agreement as an attack on their sovereignty. They feel that they have been discriminated against and the bounty is being enjoyed by the developed countries whereas the `left-overs’ are being thrown to them.[17] The main question that arises here is that if the developing nations found TRIPS so unfavourably disposed towards them then why in the first place did they accept it. One major reason for this muted acceptance of the TRIPS regulations is their stake in a successful conclusion of the Uruguay Round as a whole. They had an interest in the survival of a credible multilateral trading system and its reinforcement. This survival depended upon a successful culmination of the Uruguay Round for which it was accepted that a major outcome regarding the intellectual property laws was essential[18]. They also expected benefits from results in specific areas of the negotiations, such as textiles and agriculture. Thus, in return of trading benefits the developing countries agreed to change their intellectual property laws and to further strengthen the protection given to the IPRs. One major question that has been raging since the inception of the TRIPS Agreement and even before it is that are the developing countries discriminated against in matters of Intellectual Property Rights. Many arguments have been put forward in order to come to a satisfactory answer to this question but in vain. The author is of the opinion that the answer to this question should be in negative and has put forward contentions to support her viewpoint.

Intellectual Property can be defined as a category of intangible rights protecting commercially valuable products of the human intellect[19]. The National Consumer Council,1991 has defined it as information with a commercial value[20]. They have also been characterized as a composite of “ideas, inventions and creative expression” plus the “public willingness to bestow the status of property” on them[21].  It becomes explicit from the definition that intellectual property is a bundle of rights and hence it should be protected. Moreover, the subject matter of its protection are the valuable products of the human intellect. This shows that intellectual property rights protect the fruits of someone’s hard labour and skills. The TRIPS regime seeks to protect these rights of the individuals. The Research & Development skills of the developed countries are extremely sophisticated. They also have huge financial resources at their disposal in order to carry out research activities. It is the result of extensive cerebration processes of the best minds that a new product is invented. A large number of energy, money and other resources are spent on such an invention. It will be grossly unfair to the people who are responsible for this invention if they are not given the due credit for their work. Thus, the strengthening of protection extended to the Intellectual Property Rights is a much needed step in order to prevent free-riding and to accord rightful significance to the person or persons responsible for the innovation. But the situation created here is of a perpetual imbalance. If the Intellectual Property Rights are further concretised and protected then a situation of monopoly arises that creates a scarcity in the market which leads to the sky-rocketing of prices and hence makes the situation difficult for the common people especially in the developing countries. This is the main contention that the scholars of the developing countries argue upon. They contend that the TRIPS Agreement and a strong enforcement mechanism of the intellectual property rights are inhumane and opposed to the basic essence of humanity as they completely disregard the plight of the poor while protecting the interests of the rich. A counter-view of this contention can be that `Justice for one is Injustice for others’. The whole world is lopsided. Any attempt to create a perfect or harmonious balance is futile. If in order to accommodate the needs of the poor the rights of the rich are transgressed upon will this not amount to injustice? If the hard labour done by the scientists and other technocrats is not given due recognition will this not amount to a lack of incentive? These questions need to be answered before any measure to provide `justice’ to the masses is taken. The plight of the poor is visible and much talked about hence it has become the concern of every household in the world but what about the rights of the rich which are being trampled upon in the name of humanistic measures. If adequate protection to the Intellectual Property Rights is not provided then the very basis of granting such rights would become meaningless. `Free-riders’ would freely violate such rights and would get unjustly enriched at the cost of others’ labour and hard work. Such a miscarriage of justice should not be allowed to take place in the name of protection of the marginalised section of the world population. The TRIPS Regime led to the amendment of the existing intellectual property laws of the developing countries in order to bring it in conformity with its regulations. One of the major changes that these amendments brought about in the Indian Patent Act was the granting of product patents along with the process patents which were being granted earlier. This led to a huge uproar and furore among the pharmaceutical companies on the domestic front. This was because earlier by resorting to reverse-engineering methods they could produce the same product but now such `plagiarist’ methods were prohibited by the legislation. Again arguments based on humanistic notions were raised against this amendment. It was argued that such a strict implementation of Intellectual Property Rights would lead to the creation of a dominant producer and would adversely affect competition and hence would provide no choice to the consumers. It was also put forth that granting of product patents would lead to escalation in prices and would make the product non-affordable for the poor residing in the developing countries. It was primarily for this reason that reverse-engineering was allowed. Reverse engineering is the process of discovering how an invention works by inspecting and studying it, especially by taking it apart in order to learn how it works and how to copy it and improve it[22]. Thus, reverse-engineering in simple language is nothing but copying an existing process and making some improvements in it based on the original work. Thus, such a method cannot be called `healthy’ with respect to the protection of the intellectual property rights. It is a naked infringement of the IPRs and hence, granting of the product patents is essential in order to prevent such transgressions. The second contention in favour of the TRIPS regime is that such an extensive protection provides an incentive to Research & Development. A strong enforcement mechanism and patent protection system no doubt would lead to the stimulation of Research and Development efforts[23].

If the mechanism of enforcement is lax and weak then the rights of the inventors would be breached left and right. This would prove as a disincentive to them for applying their intellect and coming up with novel inventions. This would lead to a scarcity of innovative products in the market. For instance, taking the case of the pharmaceutical sector, if in order to accommodate the needs of the less fortunate we allow the rules to be flouted openly then no company would waste its resources, time or human capital on the invention of new drugs and there would be a scarcity of new, life-saving drugs. In short, the argument that the scholars of the developing countries are advocating is that if an equitable distribution of the product cannot be achieved then its production should be stopped which is a very impractical argument. The solution to the problem which these scholars are raising should be solved by the governments of the developing countries rather than the producers. The governments should provide subsidies to the poor who cannot afford the highly priced products. This subsidy should be borne by the government and not by the producer. Thus, the method being espoused by the scholars of the developing countries is unfair as they call for placing restrictions upon the protection being extended to the IPRs of the companies which produce these innovative products in order to curtail the prices. Moreover, the whole controversy that was set in motion after the adoption of the TRIPS regime is meaningless in the context that even before the inception of this agreement the developing countries were unfavourably poised as against the developed nations. In fact, in the Uruguay Round, the developing countries participated as equal partners and they even had a say in the matters[24]. Before this Round and before the conclusion of the TRIPS Agreement the developing countries were completely ignored in issues of international trade. Agreements such as Special 301 and Super 301 where developing countries were made to follow the regulations issued by developed countries such as the U.S.A by threatening to restrict the exports cannot certainly be termed to be fair. Section 301 of the US Trade Act of 1974 gives the President of the U.S.A the authority to retaliate against foreign trade practices which discourage US exports. What these practices could be was not mentioned in the legislation. The Trade and Competitiveness Act, 1988 introduced changes to S.301 rendering it even more threatening to foreign traders. The 1988 Act required formal investigation of private complaints, and created a new procedure called Super 301 which required the US Trade Representative (USTR) to create an inventory of unfair practices in foreign countries to select priority targets from that list, set deadlines for removal of the offending measures and restrict the export by these countries if the practices concerned were not eliminated. Super 301 was complemented by a Special 301 provision that pertained to the identification of countries whose protection of intellectual property was inadequate[25]. In a nutshell, these agreements were measures taken by the developed countries to ensure that the developing nations fell in line and formulated policies favourable for the former. Hence, it can be argued here that the deal which the developing countries were getting before the TRIPS Agreement was no less arbitrary and unfair than the latter. The GATT was basically in the nature of a club which was primarily of relevance to the developed countries. Developing countries did not participate fully[26]. On the contrary, at the initial stage of the Uruguay Round, developing countries fully participated in evolving WTO framework significantly expanding the global aspect of the organisation. It is in the Uruguay Round that the developing countries for the first time articulated their demands instead of praying for concessions. Thus, it would be erroneous to say that the Uruguay Round or the TRIPS regime in any way are prejudiced against the developing nations.  Furthermore, one of the main reasons for the developing countries to participate in the Uruguay Round was their interest in gaining trading concessions in the agricultural and textile sector. The deal was that in return for according higher and stronger protection to the Intellectual Property Rights the developing nations would get trading benefits. The developed side of the globe fulfilled their promise as the Multilateral Fibre Agreement (MFA) in the textile sector was eliminated[27]. What was clear to the developed nations at the time of the agreement was that the alternative to negotiating multilateral intellectual property standards would almost certainly have been to negotiate bilateral trade and intellectual property agreements without commonly accepted multilateral points of reference and without functioning restraints on the threats of trade counter-measures. Indeed, when comparing Post-TRIPS to the Pre-TRIPS situation, it is fair to say that there has been significant movement away from the unilateral threats of the withdrawal of GATT market access benefits[28]. In an effort to secure protection of intellectual property and there has been a demand to conclude TRIPS-plus bilateral agreements and these are being concluded. Those countries that have agreed to such higher standards have presumably done so after weighing the market access and the other benefits being offered to them[29]. Thus, it can be said that the developing countries entered into and ratified this agreement not due to compulsion or force on the part of the developed countries but because of advantage that they were going to derive out of it. Keeping this in view, all the blame should not be wiped on the sleeves of the developed nations. In order to provide justification to the TRIPS Agreement an analogy can be drawn with the Indian Penal Code. This Code has been enacted in order to maintain law and order in the society and punish those offenders who disturb the peace and harmony of the society. Similarly, the TRIPS Agreement is an effort on the part of the countries world over to prevent infringement of the intellectual property rights so that the inventor gets due credit for his labour and innovation. The Indian Penal Code imposes fines as well as punishments upon those who breach the law irrespective of their financial condition in order to set an example to the society and to deter the criminals. In the same manner, the TRIPS regime in order to deter counterfeiting and imitation of products advocates strict implementation of its regulations irrespective of the economic status of the countries. When the Indian Penal Code is not placed under criticism for adopting such a non-humanistic approach then why the TRIPS Agreement should be condemned and termed as being discriminatory and violative of the rights of the poor. It is often argued that foreign firms avoid investing in countries with weak IPR Regimes. Hence, one of the greatest advantages of the adoption of this Agreement is the inc[30]rease in the flow of Foreign Direct Investment from the developed countries to the developing nations. As a result of their amended patent legislations and hence, a stronger protection to the intellectual property rights a large number foreign industries would be willing to invest in the developing economies. This would lead to increase in the cash flow in the market and would help improve the economic condition of the country. It would also serve as an incentive for large Indian firms to invest more in Research and Development in order to increase their markets and hence profits. Collaborations between the Indian and the foreign firms can also be seen. This proves to be mutually advantageous for them as the financial and technological resources are provided by the foreign companies and India’s skilled manpower at low cost can convert these inputs into an innovative finished product. IPR regimes also may influence trade flows. Discrepancies among national IPR regimes generate effects analogous to non-tariff barriers[31]. Exporters in the north face additional costs when they export to the south rather than to the other countries in the north, because they must engage in activities to inhibit local imitation. It can also be argued that the the international harmonization of IPR regimes will diminish the transaction costs of operating in different regulatory environments. One of the most traditional arguments for supporting the IPR protection in developing countries is that the risk of piracy makes technology owners less willing to transfer proprietary knowledge to countries with weak IPR regimes[32]. Thus, the demonic character attributed to the TRIPS Agreement is not completely true.

The viewpoint presented above has met with a stiff opposition especially in the developing countries where the negative effects of the TRIPS Agreement are being felt the most. The scholars of these countries argue that the new intellectual property regime is a direct attack on the sovereignty of their respective nations. According to these intellectuals, such a framework of rules would lead to `puppetization’ of the Economic South in the hands of the Economic North. They further contend that agreements such as the TRIPS are nothing but a tool in the hands of the developed nations to bleed the developing countries white and to strip them of their natural, financial and human resources. Some scholars have also termed the new regime as `GATTastrophe’[33]. They feel that through this mechanism the developing countries would be made even more subservient to the developed nations. They believe that the concept of global village has been transformed into global tillage and global pillage[34]. One of the major concerns of the intelligentsia belonging to the Economic South was the adverse effect the TRIPS Regime would have on public health. They were apprehensive that the stringent regulations of the TRIPS Agreement would have a negative impact on the public health systems of the developing countries. As a result of the high cost of Research & Development and huge amount of money being spent on the invention of new and innovative drugs its production cost rises. Hence, in order to earn profits, the prices of these drugs are fixed at a very high level. This makes such drugs practically unavailable to the common man. The scholars thus argue that the TRIPS Regime is inhuman and does not take into account the plight of the common man[35]. They further add that as a result of the unrealistic pricing of drugs, their access would become almost impossible for the general masses and hence public health would suffer. One of the major problems with the arguments posed by these scholars is that they are not at all frugal in criticising the existing regime but they fail to provide us with a better alternative. If the patenting of these drugs is not done then their would be no incentive for the companies to engage into Research and Development and create new life-saving medicines. A harmful consequence of this would be the production of inferior, adulterated and low quality drugs. That would be even worse than the present situation. Hence, it would be incorrect to assume that the TRIPS Agreement poses a threat to the public health systems of the developing nations. Moreover, developing countries’ apprehension that drug prices will shoot up manifold if the TRIPS regulations are complied with are uncalled for. The TRIPS Regime requires that along with process patents even product patents should be granted. It is true that the price of a drug protected by a product patent would be higher than what it would have been if it were not covered by the same. However, the extent of price impact depends upon a number of factors. First, the TRIPS regime will apply only to patent application filed after 1st July 1995. it takes around 7-10 years for a patented drug to come into world market from the date of the patent application. Thus, the pharmaceutical companies of the developing nations are free to produce and sell all those drugs which are already in the world market from the date of the patent application or that will newly come into the world market till the early years of the next century. Secondly, it is likely that the share of the patented drug in our market will not be more than 10-15% of the total drug market and there is no reason why the prices of drugs that are nor covered by the patents should shoot up. Thirdly, apart from the drugs that make a spectacular breakthrough alternative drugs prior to generation of patent drugs are usually available in the market. Their prices would act as a check on the newly introduced patented drugs. Lastly, it is open to use the compulsory licensing system where an essential drug is widely needed by the common man and yet it is not available at reasonable prices then a licence can be issued to any other company other than the patenting company to produce the drug in question[36]. Moreover, levelling such allegations against the TRIPS Agreement that it does not take into account humanistic values and is extremely rigid and dispassionate would be incorrect. Article 7 of the TRIPS Agreement provides that protection and enforcement of intellectual property rights should be done in a manner which is conducive to the social and economic welfare and to a balance of rights and obligations. Similarly, Article 8 of the same agreement states that “Members may, in formulating or amending their national laws and regulations, adopt measures necessary to protect public health and nutrition and to promote the public interest in sectors of vital importance to their socio-economic and technological development, provided that such measures are consistent with the provisions of this agreement”[37]. But these Articles were misinterpreted by the developing nations and accusations were raised that these provisions are being misused and their true purpose is not being served. Consequently, as an outcome of the constant campaigning of the developing nations, a `Declaration on the TRIPS Agreement and Public Health’ was reached at the Doha Ministerial Conference of the World Trade Organisation in 2000. It was the result of staunch efforts by India Brazil and about fifty-five other African nations that such a compromise could be reached. This is one of the areas where there is an assurance that the restrictive clause under the TRIPS agreement on drug patents will not over ride public health concerns. It is a positive development that in TRIPS, a public health crisis has been included as an exception for granting compulsory license (CL). What is new in the Doha Declaration is that it recognizes the fact which was implicit under Articles 7 and 8 of TRIPS, that considerations of Public Good which includes public health could be the over riding factor while offering IPR protection for medicines for specified diseases and ‘epidemics’ particularly for Developing Countries and Least Developed Countries[38]. Hence, a more humane character was bestowed upon the TRIPS Agreement. Thus, it would be faulty to argue now that the TRIPS Agreement does not cater to public health issues. Hence, in the light of the above mentioned arguments, the TRIPS should not be viewed only as a coercive mechanism to exploit the poor but the benefits accruing from it should also be taken into consideration.

Conclusion

The TRIPS Agreement has always been looked upon as a demon unleashed upon the helpless poor. It has been termed as an exploitative tool in the hands of the developed countries. A misinterpretation of the agreement has been made by the scholars of the developing countries who believe that the agreement only has a negative impact on their economy and sideline its positive effects. What the author has tried to highlight here is the optimistic side of the TRIPS Agreement. The devilish character of this agreement has been exaggerated. It is an accepted fact that protection of rights of some leads to the transgression of rights of others. The strong protection accorded to the intellectual property rights and the consequent creation of a monopoly market has taken its toll on the general masses. They have been systematically denied the fruits of these innovations as they cannot afford to pay such high prices in order to avail them. Thus, it can be said that the `classes’ are enjoying at the expense of the `masses’. But to make the companies which utilise enormous amount of resources in order to create new and innovative products liable for this inequality would be incorrect. This wide gap between the rich and the poor and this inequality of distribution should be corrected by the government. This imbalance should be balanced by the subsidies given by the government. The government should give subsidies to the companies engaging in R&D in order to produce new products. This would serve both as an incentive for the companies and also as a cost-reducing measure. As the costs would reduce the prices too would come down. The government can also correct this tilt by introducing rationing of the essential commodities which have been patented and are not affordable by the poor. The approach which the developing countries suggest is detrimental to both their and the world economy. It is true that economic growth which leaves millions of people hungry, unemployed and oppressed is not growth in its true sense. But, instead of arresting these greater concerns such as poverty and unemployment by active government intervention if the causes of economic growth are eliminated then it would certainly not be called a wise solution to the problem. If the TRIPS Agreement is scrapped and the level of protection given to the intellectual property rights is lowered then a plethora of problems would arise such as lack of foreign investment, scarcity of new and better goods etc. Thus, in order to curtail one problem it should be taken care of that other problems do not arise. The TRIPS negotiations, although initiated at the insistence of certain developed countries, did take account of developing country perspectives, and the final text does provide considerable leeway in implementing this agreement. Such flexibilities have been clarified and further extended in the Doha Declaration on the TRIPS Agreement and Public Health in November, 2001[39]. Thus, it can be safely concluded that the TRIPS Agreement does not pose a threat to the developing economies and does not deserve only brickbats but bouquets as well.

References:


[1] V.R.Krishna Aiyer, “ Off The Bench”

[2] Daniel Gervais, The TRIPS Agreement- Drafting History and analysis, 3rd Edition, 2008,

[3] www.gatt.org

[4] Ibid.

[5] Jayanta Bagchi, World Trade Organisation-An Indian Perspective, 2nd Edition, 2006, pp.2-5

[6] www.wto.org

[7] BM Hoekman, MM Kosteck, “The political economy of the world trading system: the WTO and beyond” 1st Edition, 2001

[8] George A. Bermann and Petros C. Mavroidis, WTO and Developing Countries, 1st Edition,2009, pp.147-148

[9] Supra n.1,  p.47

[10] S.C.Scotchmer, “ The Political Economy of Intellectual Property Treaties”, Journal of Law, Economics and Organization, 2004

[11] G.W.Harrison & T.F.Rutherford, “ Quantifying the Uruguay Round”, The Economic Journal, 1997, www.JSTOR.com

[12] Jayashree Watal, Intellectual Property Rights in the WTO and developing countries, 1st Edition, 2001, pp. 35-37

[13] Supra n.8

[14] Supra n.4, pp. 3-4

[15] Supra n.11

[16] Supra n.2 p.129

[17] L.R.Helfer, “ Regime Shifting: The TRIPS Agreement and dynamics of international intellectual property lawmaking”, Yale Journal Of International Law, 2004, papers.ssrn.com

[18] Supra n.8

[19] Black’s Law Dictionary, 9th Edition

[20] National Consumer Council,1991

[21] R.M.Sherwood, Intellectual Property and Economic Development, 1st Edition,1990

[22] Black’s Law Dictionary, 9th Edition

[23] Uma Suthersanen, Graham Dutfield & Kit Boey Chow, Innovation Without Patents, 1st Edition,2007

[24] Will Martin & L.Alan Winters, “ The Uruguay Round And The Developing Countries”, www. books.google.com

[25] Supra n.1, p.10

[26] Supra n.4

[27] Supra n.8

[28] Ibid.

[29] Supra n.2 pp. 130-131

[30] S.Lall & R.Narula, “ Foreign Direct Investment and its role in economic development: Do we need a new agenda?”, The European Journal Of Development, 2004

[31] R.Stern, Intellectual Property, 1987

[32] Keith.E.Maskus, The WTO, Intellectual Property Rights and the Knowledge Economy, 1st Edition,2004

[33] Justice V.R.Krishna Aiyer, Off the Bench, 1st Edition,2008, p.108

[34] Supra n.16, p. 109

[35] Shyama V. Ramani & Augustin Maria, TRIPS: Its Possible Impact on Biotech Segment Of The Indian Pharmaceutical Industry, Economic And Political Weekly, Feb12-18, 2005

[36] Supra n. 1 pp. 65-66

[37] TRIPS Agreement

[38] Ashok Ram Kumar, Impact of TRIPS on Indian Pharma, The Chronicle, 2nd December, 2004

[39] n.2 p. 142

HOW TO EXERCISE YOUR RIGHT TO INFORMATION

ORIGIN and Meaning of  RIGHT TO INFORMATION

Our country is a democratic country and the persons who runs our Democratic  Government are elected by the people of India . People of India elect them by exercising their voting rights in General election. So the persons running our DEMOCRATIC Government actually derive their powers to run the Government from people of India. And that is why, Every citizen has got the right to know how the Government as well as persons running the Government and the persons working under the authority of the Government is functioning. This Right is known as Right to Information which empowers every citizen to seek any information from the Government and the authorities acting under the authority of the Government. This RIGHT is regarded as OXYGEN of  DEMOCRACY as because exercise of this RIGHT ensures TRANSPARENCY and PREVENTION of CORRUPTIONS in the functioning of the Public Authorities and thereby helps to survive and strengthen the democracy.

Key principle for Effective Exercise of a RIGHT

Before exercising any RIGHT effectively, everybody has to acquire knowledge about  the meaning and Scope including the limitation/s of that particular right as well as the powers of the authority/s who are empowered to protect and ensure the enforcement  of that RIGHT which he is going to exercise .

What is Right To Information Act,2005 ?

It is a Legislation passed by Indian Parliament in the year 2005.This legislation confers STATUTORY STATUS  to  RIGHT TO INFORMATION well as prescribes the procedures necessary to be complied with for the exercise of the aforesaid RIGHT TO INFORMATION. It also provides for the authorities who will facilitate the exercise of the aforesaid RIGHT as well as   penal consequences for that authority, if they fails to facilitate the exercise of that RIGHT.It also mandates constitution of  a CENTRAL INFORMATION COMMISSION and STATE INFORMATION COMMISSION for EACH STATE which will deal with the cases of denial made by the authorities to facilitate the exercise of the RIGHT TO INFORMATION within the time specified. It also provides for penalty to be imposed on Public Information Officer for unlawful denial of request for information.

Earlier it was only Constitutional Rights under Article 19 of Indian Constitution, but now RTI is both legal and Constitutional Right.

Meaning of “Right to information”

It means the Right of Citizens to access INFORMATION/S held by or under the “PUBLIC AUTHORITY” and includes the right to-

i.inspect work,documents and records;

ii.take notes,extract or certified copies of documents or records;

iii.take samples of materials; and

iv.to obtain the the information in the form of diskettes, floppies, tapes, video cassettes and any any other electronic mode  or through print out where such information is stored in a computer or any other device.

So, here two terms i.e., “Information and Public Authority” are involved in the concept of RIGHT TO INFORMATION.

Meaning of ‘INFORMATION’

The RTI Act has defined the term in a broader sense. According to it, INFORMATION means –

“any material in in any form including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material  held in any electronic form by the public authority and also includes the information’s relating to any private persons which can be accessed legally by the public authority”.

So,the first portion of the meaning of the word ‘Information’ relates to the functioning of public information and last portion relates to the functioning of the private person/third person .Other than public  to which the public authority is legally entitled to have an access.

Meaning of “PUBLIC AUTHORITY”

It means –

Any authority or body or institution of self government established or constituted –

  1. By or under the Constitution of India (e.g., Parliament, Supreme Court, High Court, Central Government, State Government Ministers office, planning commission, Finance commission, ST/SC/OBC commission etc.);
  2. By any other law made by parliament (e.g.,NHRC, SHRC, CIC, SIC, LICI, ONGC, SBI, CENTRAL UNIVERSITY etc.);
  3. By any other law made by state legislature ( ICFAI University, Calcutta University, Burdwan University, Tripura Tourism Corporation etc.);
  4. By notification issued or order made by the appropriate Government;

and includes any

  1. Body owned , controlled or substantially financed, directly or indirectly, by funds provided by the Government, central or State
  2. Non–government organization (NGOS) substantially financed, directly or indirectly, by funds provided by the Government, central or State

Ordinarily Exempted Public Authority

It means the Public authority ,ordinarily which has no obligation to provide/furnish information in response to a RTI request and generally public has no authority to access information/s held by them or information furnished  by them to the Government. Ordinarily Exempted Public Authority means the Central and State Intelligence and Security Organizations, a list of which is provided in Second Schedule in the RTI Act itself

Schedule of Ordinarily Exempted Public Authority

Central Intelligence and security organization

1. Intelligence Bureau.

2. Research and Analysis Wing of the Cabinet Secretariat.

3. Directorate of Revenue Intelligence.

4. Central Economic Intelligence Bureau.

5. Directorate of Enforcement.

6. Narcotics Control Bureau.

7. Aviation Research Centre.

8. Special frontier Force.

9. Border Security Force.

10. Central Reserve Police Force.

11. Indo-Tibetan Border Police.

12. Central Industrial Security Force

13. National Security Guards.

14. Assam Rifles.

15. Special Service Bureau

16. Special Branch (CID), Andaman and Nicobar.

17. The Crime Branch-C.I.D.-CB, Dadra and Nagar Haveli.

18. Special Branch, Lakshadweep Police

When Ordinarily exempted Public Authority is Bound To Respond to RTI Request

1.When RTI request relates to allegations of Corruption in that public Authority; and

2.When RTI request relates to allegations of violation of Human Rights by that  public Authority.

Who are entitled to RTI

* Only the citizens of India have this Right To Information.

* Non-Citizens are not entitled to this Right To Information.

Ordinarily Accessible Information/S

Any INFORMATION which the public authority is bound to furnish/provide to The Information-seeker under the provisions of Right To Information Act, 2005 .

Ordinarily Inaccessible Information

It means  the INFORMATIONS, the disclosure of which are ordinarily exempted. Although a Citizens are entitled/not prevented to make a request for supply of the above Information.

It includes the following information’s:

(a) information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence;

(b) information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court;

(c) information, the disclosure of which would cause a breach of privilege of Parliament or the State Legislature;

(d) information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party;

(e) information available to a person in his fiduciary relationship;

(f) information received in confidence from foreign Government;

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

(h) information which would impede the process of investigation or apprehension or prosecution of offenders;

(i) cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers:

Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over;

Access to Ordinarily Inaccessible Information

  • ORDINARILY  INACCESSIBLE INFORMATION can be accessed/disclosed  only if  the person making the request is able to satisfy the public authority that the public interest outweighs the harm of protected interests of non-disclosure.
  • A public authority may allow access to that information/s, if he is satisfied that the public interest which requires the disclosure outweighs the harm to the protected interests of non-disclosure.

Duty of Public Authority

The APPROPRIATE PUBLIC AUTHORITY is bound to do ensure the compliance of the following duties:

1. Maintenance and Computerization of certain information’s including    their dissemination;

2. Publication of certain information’s including their dissemination;

3. Assigning reasons for its decision/s;

4. Appointment of Public Information Officer and First appellate authority.

5. Constitution of Information Commission (Central and State IC)

Maintenance and Computerization of certain information’s

Every Public Authority shall-

a)    maintain maintain all its records duly catalogued and indexed in such a manner and in such form which facilitates the full exercise of the RTI ; and

b)   ensure that the records capable of being  computerized  are, within reasonable time and subject to availability of resources, computerized and connected through a network all over the country so as to ensure the possibility of easy access to such records and thereby facilitates the full exercise of the RTI .

Publication of certain informations

It is the mandatory duty of every public authority to publish suo moto (voluntarily on its own), with in 13th October,2005, the following information’s:

  • the particulars of its organization, functions and duties;
  • the powers and duties of its officers and employees;
  • the procedure followed in the decision making process, including channels of supervision and accountability;
  • the norms set by it for the discharge of its functions
  • the rules, regulations, instructions, manuals and records, held by it or under its control or used by its employees for discharging its functions;
  • a statement of the categories of documents that are held by it or under its control;
  • the particulars of any arrangement that exists for consultation with, or representation by, the members of the public in relation to the formulation of its policy or implementation thereof;
  • a statement of the boards, councils, committees and other bodies consisting of two or more persons constituted as its part or for the purpose of its advice, and as to whether meetings of those boards, councils, committees and other bodies are open to the public, or the minutes of such meetings are accessible for public;
  • a directory of its officers and employees;
  • the monthly remuneration received by each of its officers and employees, including the system of compensation as provided in its regulations;
  • the budget allocated to each of its agency, indicating the particulars of all plans, proposed expenditures and reports on disbursements made;
  • the manner of execution of subsidy programmer  including the amounts allocated and the details of beneficiaries of such programmes.
  • particulars of recipients of concessions, permits or authorizations granted by it;
  • details in respect of the information, available to or held by it, reduced in an electronic form;
  • all relevant facts while formulating important policies or announcing the decisions which affect public

Dissemination Of Information

The Information’s to which above duties are related shall be widely disseminated by the public authority in such form and in such manner which is easily accessible by the public.

Here, the word DISSEMINATED means making known or communicated the information’s to the public through notice board, newspapers, public Announcements, media broadcasts, internet or any other means including inspection of the of the offices of the public authority.

The Information’s to which above duties are related shall be widely disseminated by the public authority in such form and in such manner which is easily accessible by the public.

Here, the word DISSEMINATED means making known or communicated the information’s to the public through notice board, newspapers, public Announcements, media broadcasts, internet or any other means including inspection of the of the offices of the public authority.

Reasoned Decision

Every public authority has to assign reason/s in support of its decision,   whether the decision is administrative, judicial or quasi-judicial to the person against whom the decision is made.

Appointment of   Public Information Officer (PIO) and   First appellate Authority

It is the duty of every public authority to appoint as many public Information Officer as public Information Officer and Assistant public Information Officer in all administrative Units or offices under it for providing information/s to the persons making RTI request.

It is the duty of every  public authority to appoint /designate an officer senior in rank to Public Information Officer as First appellate Authority in all administrative Units or offices under it for accepting and adjudicating  the appeal filed against  order of refusal to supply information/s.

Duty of Public Information Officer (PIO)

General Duty

To pay respect to the Information-Seeker/s at all time and not to misbehave and disrespect at any time with the Information-Seeker/s.

Specific  Duty

  • Duty to guide the Information seeker to exercise his RTI.
  • Duty to transfer the RTI application to the appropriate authority, when the RTI application made to him relates to information/s held by other public authority
  • Duty to ask the information seeker to make payment of necessary fees prescribed for supply of information.
  • Duty to send notice with in Five days from the date of receipt of RTI request to the Third Party.
  • Duty to allow 10 days to the third party for making his representation as to why information relates to him will not be disclosed.
  • Duty to provide Information with in the time specified in RTI Act
  • Generally, within thirty days from the date of receipt of RTI request and with in 40 days when RTI relates to Third Party Information/s and within 45 days when RTI request relates to Human Rights Violation by ordinarily exempted Public authority (Security and Intelligence Organization/s).

BUT IT IS THE DUTY OF PIO TO SUPPLY INFORMATION WITHIN 48 HOUR WHEN RTI REQUEST RELATES TO VIOLATION OF RIGHT TO LIFE AND PERSONALLIBERTY.

Penalty for PIO

When the PIO, without any reasonable cause, refused to receive an RTI application or has not furnished information within the  specified time period or  malafidely denied the request for information or knowingly given incorrect, incomplete or misleading information or destroyed information which was the subject of the RTI request or obstructed in any manner in furnishing the information, the appropriate  Information Commission  has got the power to impose  impose a penalty of two hundred and fifty rupees each day till the date of  furnishing of information  and IC can impose maximum fine of  Rs.25,000/ and IC also empowered to direct DISCIPLINARY ACTION against that public authority.

But before making any order in this respect, the appropriate  Information Commission  is bound to hear the PIO.

How to Exercise RTI

Steps 1 – Making and Submitting RTI application

Make an RTI application by writing the matter/s in respect of which  you are seeking information and submit it along with the prescribed fees(Generally,Rs.10 in the in the form of cash payment or Indian Postal Order or Court Fee as has been prescribed by the competent authority) addressing to the PIO of the public authority to which your RTI request relates with his office address .

Steps 2 – Prefer First Appeal

When the PIO rejected the RTI application and when the PIO fails to supply Information within the specified time period, then you have to prefer an appeal detailing the fact of the cases of refusal of your RTI application within THIRTY DAYS from the date of refusal of RTI application

First Appellate Authority is bound to dispose of the appeal  normally within 30 day and maximum within 45 day by specifying reasons for it  from the date of receipt of the appeal.

Steps 3 – Prefer Second Appeal

When the First Appellate Authority rejected the appeal, then you have to prefer an appeal before the appropriate Information commission within NINETY DAYS from the date on which you have received the order of the First Appellate Authority

Second Appellate Authority is bound to dispose of the appeal normally within 30 day and maximum within 45 day by specifying reasons for it from the date of receipt of the appeal.

Step 4 – Prefer Appeal to High court or Supreme Court

If you are aggrieved by the order of the of the Information Commission, then you may prefer an appeal against the order of the Information Commission under article 226 or  32 of our Constitution  to High Court or Supreme Court respectively  exercising the constitutional right to information which derives from article 19 of our Indian Constitution.

A REQUEST

Exercise your RIGHT TO INFORMATION as to ensure accountability and prevention of corruption in the public functioning to strengthen our DEMOCRACY.

Help Desk

Seek Co-operation, if you find any problem in exercising your RIGHT TO INFORMATION from me at:

asc_law@yahoo.com

manabhrprotector@gmail.com

NEED FOR AMALGAMATION OF ALTERNATIVE DISPUTE RESOLUTION WITH CIVIL PROCEDURE CODE

By: V.G.Ranganath

During ancient time arbitration, conciliation and mediation were the means of settlement of disputes outside the formal legal system. In Ramayana, Angadha, the son of Vali approached Ravana and delivered the message of Lord Rama to opt the path of peaceful settlement. In Mahabhartha, Lord Sri Krishna endeavoured to mediate between the Pandavas and Kauravas. These alternative means were recognized not only in India but also in other parts of the world. Thus, settlement of dispute outside the scope of the formal legal system may be called as alternative means of settlement of disputes. However in the context of the law of arbitration the settlement of dispute through a mediator is necessarily treated as an alternative means. The settlement of disputes, outside the scope of the formal legal system was prevailing in India before the advent of Moghul regime. India is a country of villages and among the rural folks the settlement of disputes used to be resolved by rural intellectuals and by prominent persons or villages. On arrival of Englishmen/Britishers in India this system diminished by the inception of formal legal system.

The Judicial system developed by the Britishers was very expensive and time consuming and due to these reasons the people’s faith on such legal system was being diminished. After the independence it was realized that there is need to have such an alternative means of dispute resolving system or machinery which may be economical and less time consuming. Consequently emphasis was put on developing the alternative means for settlement of disputes which should be scientifically designed. Even, the International Community paid attention towards this traditional alternative means for settlement of disputes by way of arbitration, conciliation and mediation. It is to be seen that not only in India but also in China, England and United States of America this traditional alternative means for settlement of disputes was prevailing since long. Now, the international business community is of firm opinion that alternative dispute resolution-ADR is the only means or way to get rid from the demerits of the present legal system.

It is a universally admitted fact that arbitration, conciliation, and mediation are efficient alternative means for resolving disputes. Undoubtedly, these alternative means are less expensive and are not time consuming which are in fact very important for protection of commercial relationship.

In past years it has been witnessed that settling the disputes by the alternative means such as arbitration, conciliation and mediation and its scope have been considerably increased in the business field. Several developed and developing countries have adopted and recognized the alternative dispute resolution for resolving the international commercial disputes. The United States of America is the first country which has not only campaigned for alternative means for settlement for settlement of international commercial disputes but also adopted the system of alternative means of dispute settlement. It should be made clear that the alternative dispute resolution is not an alternative to the formal judicial system but only a supplement to it, its main object being to render economical and speedy disposal of disputes. Notably, negotiation, mediation, arbitration and conciliation are the system which comes within the purview of the alternative means for dispute resolution.

Now a days, disputes are inevitable, there is an urgent need to find a quick and easy method of resolution. These disputes or conflicts hinders the development and disturbs the physical strength  and mental peace of human life. To lead a passionate life, the human being should be without any conflicts. But is it possible? For every thing the person is finding litigation and approaching the Courts. There are so many litigations in form of mounting arrears  of cases and filing of cases. According to rough estimate, all pending cases, which approximately go beyond two crores in India, would take a minimum of 324 years for final disposal, provided no new suit or proceedings is filed.[2]

In view of increasing importance of alternative means for settlement of disputes, it has become necessary to train the person for this purpose and impart expertise in this field as skilled persons are required to perform under the system of alternative disposal of disputes. Thus with the object to give statutory recognition to alternative means of settlement of disputes, the necessity of an organization was felt. On 4th December 1997 the Chief Ministers of States and the Chief Justices of the High Courts met in New Delhi to discuss at length the alternative means of dispute resolution. In the meeting it was declared that the present justice delivering system is not capable to bear the whole workload and it would be appropriate to deliver justice by the alternative means of disposal of disputes as well. Under this system there is a procedural flexibility and also in time and money saving besides the absence of tension of regular trial.

In this context the legendaries of various fields i.e., commercial, administrative and legal unanimously constituted an institution to be called “International Centre for Alternative Dispute Resolution-ICADR. This institution was established in Delhi on 31st May, 1995 and registered under the Society Registration Act, 1960. It is an autonomous non-beneficial institution. The chief object of this institution is to inculcate and expand the culture of alternative dispute resolution. However, other objects of the International Centre for Alternative Dispute Resolution are as under:-

  1. to expand, encourage and popularise the scientific means for settlement of local, national and international commercial disputes;
  2. to provide assistance and render facilities for arbitration, conciliation and mediation;
  3. to develop the alternative means of dispute resolution among the communities in accordance with their social, economic and other requirements;
  4. to appoint conciliator and mediator on the request made by the parties in the dispute. In accordance with the Arbitration and Conciliation Act, 1996 if the parties are unable to appoint the mediator or conciliator or arbitrator they can designate or nominate the person or institution for the appointment of the mediator. Similar power has also been conferred upon the Chief Justice;

Advantages of the Alternative means of Dispute Redressal

  1. The alternative means of dispute redressal can be invoked at any time, even if the matter is pending in the Court of Law. Similarly it can be terminated at any time except in case of compulsory arbitration.
  2. The disputes can be resolved comparatively more economically and speedily. Disputes can be maintained as the personal subject-matter. Sometime disputes are resolved within one or two days’ time because the procedure adopted by the mediator is controlled and consented by the parties. Thus, real solution of the dispute can be arrived at by the system of alternative means of dispute redressal.
  3. The system of alternative means of dispute redressal can be followed without seeking legal assistance from the advocates-lawyers.
  4. This system effectively reduces the work-load of the court.
  5. Finally, this system provides flexible procedure, strict procedure of law is not applicable to alternative means of disputes redressal.

Undoubtedly, the present world is undergoing a kind of revolution, not only in the field of communication and information technology but also in the field of trade and commerce. Even the domestic as well as international trade and commerce are not untouched in the prevailing scenario. It has been realized that the law of arbitration requires to be developed, promoted and also applied so that the regular Court of law which is already over-burdened on account of complexities and disputes in every walk of life is reduced with judicial burden.

Need for ADR:

  1. Mounting arrears of matters before Court system
  2. Expedite settlement

 

The Code of Civil Procedure introduced certain provisions giving the power to courts to settle the matters out side the Court. Section 89 provides for the settlement of disputes outsides the Court. The provisons of this section are based on the recommendations made by Law Commission of India and Malimath Committee. It was suggested by Law Commission of India that the Court may require attendance of any party to the suit or proceedings to appear in person with a view to arriving at an amicable settlement of  dispute between the parties and make an attempt to settle the dispute between the parties amicably. Malimath Committee recommended to make it obligatory for the Court to refer the dispute, after issues are framed, for settlement either by way of arbitration, conciliation, mediation, judicial settlement or through Lok Adalat. It is only when the parties fail to get their disputes settled through any of the alternative dispute resolution method that the suit could proceed further. In view of the above, by Amendment of 1999 a new section 89 has been inserted in order to provide for alternative resolution.

The object of Section 89 appears to promote alternative methods of dispute resolution which  may not be bound by any specific procedure and further resolves the dispute expeditiously.

According to the statement of Object and Reasons appended to the Bill (Amendment Act 1999) “this is a special provision made for settlement of disputes outside the courts”. A litigant is free to settle his dispute on a reference made by the court by resorting to any of the following methods:

(a)    Arbitration

(b)   Conciliation

(c)    Judicial Settlement including settlement through Lok Adalat, or

(d)   Mediation.

It seems that the special provision has been introduced in order to help the litigant to settle his dispute outside the court instead of going through the elaborate process in the court trial. This is a special procedure for settling the dispute outside the courts by simpler and quicker methods. The decision rendered by different forums shall have the same binding effect as if made by a civil court after an elaborate trial.

Provisions of the section are based on 129th Report of the Law Commission of India as well as Justice Malimath Committee Report.

 

Settlement of Dispute outside Court

Section 89 provides that where it appears to the court that there exist elements of settlement which may acceptable to the parties the court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observations, the court may formulate the terms of possible settlement and refer the same for:

(a)    arbitration;

(b)   conciliation;

(c)    judicial settlement including settlement through Lok Adalat; or

(d)   mediation

Section further provides that where the dispute is referred to arbitration or conciliation, the provisions of Arbitration and Conciliation Act, 1996 would apply; where referred to Lok Adalat, the relevant provisions of Legal Services Authority Act, 1987 would apply. In case it is referred to mediation, the Court shall affect a compromise between the parties and shall follow such procedure as may be prescribed.

It is, however not clear from the provisions of Section 89 that whether the reference by the court to the alternative method of dispute resolution mechanism is mandatory or directory. It also not set out the stage for such a reference.

The provisions embodied under Section 89 do not suffer from any constitutional infirmity.[3]

 Order X of Civil Procedure Code: The provisions of O.X  confer on the court a power to examine parties with a view to ascertain the real points in the controversy between them, and to get admissions from them, with a view to eliminate irrelevant issues and evidence and thereby shorten the trial.[4] This rule relates only the ascertainment by statements of the parties themselves or their pleaders whether allegations in the pleadings which were admitted or denied by them. Such ascertainment is to be made when the allegations or not expressly or impliedly admitted or denied by the party against whom they are made[5].

The rule used the expression “first hearing”. What does this expression mean? The expression has not been defined in the Code. It is the day on which the court purposes to apply its mind to determine the points in the controversy between the parties to the suit and to frame the issues if necessary[6]. It is the day the court applied its mind and goes into the pleadings of the parties in order to understand their contentions[7]. After recording the admissions and denials the Court shall direct the parties to settle the matter out of court and adopt the modes embodied in Section 89 of the Code, that is arbitration, conciliation, mediation or Lok Adalat.

The object of the examination under this rule is to ascertain the matters in dispute and not to take evidence or to ascertain what is to be the evidence in the case[8].  Rule 2 has been substituted to make it obligatory on the part of the court to examine the party appearing in person or present in the Court for elucidating the matters in the controversy.

At the first hearing of the suit the Court can examine a party or his witness, orally in order to elucidate the matters in the controversy[9]. Where the party’s pleader refuses or is unable to answer material questions the Court can direct personal attendance of the party himself. If the party fails without lawful excuse to appear on the appointed date, the Court may pronounce judgment against him or make such orders as it thinks fit[10].

The intention of this rule is to enable the Court not only to get obscure points cleared up by obtaining information from either of the parties, but also if possible, to get admission so as to narrow down the issue.

The rule is a penal provision and before the Courts can apply it, its terms have to be strictly complied with. Under this rule an order directing a party to appear in person can only be made if the pleader who represents him has refused or is unable to answer material questions[11].

Civil Procedure Alternative Dispute Resolution and Civil Procedure Mediation Rules, 2005[12]

1. The Court shall after recording admission and denials at the first hearing of the Suit under Rule 1 of Order X and where it appears to the Court that there exists elements of a settlement and give them to the parties, formulate the terms of settlement and give them to the parties for their observations under sub-section (1) of Section 89, and the parties shall submit to the Court their responses within thirty days of the first hearing.[13]

2. The Court shall give guidance to parties while giving direction to opt for ADR, its advantages, relationship between the parties which requires to be preserved.[14]

3. If the suit has been referred for any of the mode mentioned in Section 89 and has not been settled or not be proper in the interests of justice to proceed further with the matter, the suit shall be referred back again to the Court with a direction to the parties to appear before the Court on a specific date.[15]

4. The High Court shall take steps to have training courses conducted in places where the High Court and the District Courts or Courts of equal status are located, by requesting bodies recognized by the High Court or the Universities imparting legal education  or retired Faculty Members or other persons who, according to the High Court are well versed in the techniques of alternative methods of resolution of dispute, to conduct training courses for lawyers and judicial officers.[16]

5. The High Court and the District Courts shall periodically conduct seminars and workshops on the subject of alternative dispute resolution procedures throughout the State or States over which the High Court has jurisdiction with a view to bring the awareness of such procedures and to impart training to lawyers and judicial officers.[17]

6. The parties to a suit may all agree on the name of the sole mediator for mediating between them and where there are two sets of  parties and are unable to agree on a sole mediator, each set of parties shall nominate a mediator.[18]

7. The following persons shall be treated as qualified and eligible for being enlisted in the panel of mediators[19]:-

(a) Retired Judges of the Supreme Court of India, Retired Judges of the High Court, Retired Judges and Sessions Judges or retired Judges of the City Civil Court or Courts of equivalent status.

(b) Legal Practitioners with at least fifteen years standing at the Bar at the level of the Supreme Court or the High Court  or the District Courts or Courts of equivalent status.

(c) Experts or other professionals with at lease fifteen years standing or retired senior bureaucrats or retired senior executives.

(d) Institutions which are themselves experts in mediation and have been recognized as such by the High Court, provided the names of its members are approved by the High Court initially or whenever there is change in membership.

7. The venue for conducting mediation is at any place basing on the consent of the parties.[20]

8. On the expiry of sixty days from the date fixed for the first appearance of the parties before mediator, the mediation shall stand terminated, unless the Court, which referred the matter, either suo-motu, or upon request by the mediator or any of the parties, and upon hearing all the parties, is of the view that extension of time is necessary or may be useful; but such extension shall not be beyond further period of thirty days.[21]

9. The Court to fix a date for recording settlement within seven days of the receipt of any settlement, the Court shall issue notice to the parties fixing a day for recording the settlement, such date not being beyond a further period of fourteen days from the date of receipt of settlement, and the Court shall record the settlement, if it is not collusive.[22]

10. At the time of referring the disputes to mediation, the Court shall, after consulting the mediator and parties, fix the fee of the mediator.[23]

11. The mediator shall follow certain ethics:

(1) not carry on any activity or conduct which could reasonably be considered as conduct unbecoming of a  mediator.

(2) uphold the integrity and fairness of the mediation process.

(3) Be faithful to the relationship of trust and confidentiality imposed in the office of mediator.

(4) Disclose any interest or relationship likely to affect impartiality or which might give an appearance of partiality of bias.

(5) Conduct all proceedings related to the resolutions of a dispute, in accordance with the applicable law.

Conclusion: To achieve the inner peace of mind, the parties should attempt to settle the matter in an amicable manner which leads to strong harmony and leads to efficacious results.

THE END


[1] The Author is working as an Assistant Professor, Padala Rama Reddi Law College, Hyderabad.

[2] Alternative Dispute Resolution, Negotiation and Mediation-Dr.Madabhushi Sridhar

[3] Salem Advocates Bar Association, Tamilnadu v Union of India, AIR 2003, SC 189.

[4] Ram Krishna v Ram Janaki, AIR 1992 All 335).

[5] Balmiki Singh v. Mathura Prasad, AIR 1967 All 259

[6] Siraj Ahmad Siddiqui v. Prem Nath Kapoor, AIR 1993 SC 2525).

[7] Arjunchiamal Makhijani v.Jamnadas Tuliani, AIR 1959 SC 1599; Siraj Ahmad Siddiqui v. Prem Nath Kapoor, AIR 1993 SC 2525.

[8] Gunga v.Tiluckram, (1888) 15 Cal 533

[9] Collector(District Magistrate) Allahabad v. Rajaram, AIR 1985 SC 1622).

[10] Rule 4 of O.X of CPC

[11] Satu v. Hanmantrao, (1899) ILR 23 Bomb 318

[12] Ins.by G.O.M.S. No.40, Law (LA&JHC-D), dt.2.4.2008 w.e.f. 22.2.2006, Pub. in R.S to Part-I of the A.P.Gaz., No.9, dt.17.7.2008.

[13] Rule 307 of Andhra Pradesh Civil Rules of Practice and Circular Orders, 1980.

[14] Rule 309 of Andhra Pradesh Civil Rules of Practice and Circular Orders, 1980.

[15] Rule 311 of Andhra Pradesh Civil Rules of Practice and Circular Orders, 1980.

[16] Rule 311 of Andhra Pradesh Civil Rules of Practice and Circular Orders, 1980.

[17] ibid

[18] Rule 314 of Andhra Pradesh Civil Rules of Practice and Circular Orders, 1980.

[19] Rule 315 and 316  of Andhra Pradesh Civil Rules of Practice and Circular Orders, 1980.

[20] Rule 318 of Andhra Pradesh Civil Rules of Practice and Circular Orders, 1980.

[21] Rule 330 of Andhra Pradesh Civil Rules of Practice and Circular Orders, 1980.

[22] Rule 337  of Andhra Pradesh Civil Rules of Practice and Circular Orders, 1980.

[23] Rule 338 of Andhra Pradesh Civil Rules of Practice and Circular Orders, 1980.

Mobile Banking

INTRODUCTION

 Mobile Banking is the hottest area of development in the banking sector and is expected to replace the credit/debit card system in future. In past two years, mobile banking users have increased three times if we compare the use of either debit card or credit card. Moreover 85-90% mobile users do not own credit cards . Mobile banking is a term used for performing balance checks, account transactions, payments etc via a mobile device such as a mobile phone. Mobile banking is most often performed via SMS or the mobile internet but can also use special programs called clients downloaded to the mobile device . Mobile banking is one of the three major pillars of revolutionary improvement in the quality of service delivery of banks.

DEFINITION

 Mobile banking can be defined as “mobile banking refers to provision and availing of banking and financial services with the help of mobile telecommunication devices.” The scope of offered services may include facilities to conduct bank and stock market transactions, to administer accounts and to access customized information. So mobile banking is all about performing banking transactions such as balance checks, account transactions, payments with the help of mobile phone. The services offered by mobile banking include getting account information, transferring funds, sending check book request, managing deposits and so on. This type of service has been a hit with the youth, who find it an easy and convenient way to carry out the transactions. However, mobile banking is also used by others belonging to different age groups. The “any time- any where” banking feature of the mobile banking is making it very popular among all the categories. Commercial banks are exploring this avenue to make their services more convenient for their customers. The growing no. of mobile subscribers in the country forms the most valuable support base for the growth and success of mobile banking .

 IMPORTANCE

 Mobile banking has lot of advantages for both service providers and those who avail services. It has really become multi beneficial. Banks do not require investment, and they do not even have to modify their existing infrastructure. Banks can send the message in fewer efforts to a huge no. of people. It also helps banks to form good relations with their customers. The advent of the Internet has revolutionized the way the financial services industry conducts business, empowering organizations with new business models and new ways to offer 24×7 accessibility to their customers .The ability to offer financial transactions online has also created new players in the financial services industry, such as online banks, online brokers and wealth managers who offer personalized services, although such players still account for a tiny percentage of the industry . Over the last few years, the mobile and wireless market has been one of the fastest growing markets in the world and it is still growing at a rapid pace. According to the GSM Association and Ovum, the number of mobile subscribers exceeded 2 billion , and now exceeds 2.5 billion .Mobile devices, especially smart phones, are the most promising way to reach the masses and to create “stickiness” among current customers, due to their ability to provide services anytime, anywhere, high rate of penetration and potential to grow. According to Gartner, shipment of smart phones is growing fast, and should top 20 million units (of over 800 million sold) in 2006 alone . While internet penetration and use in India is relatively low, mobile phone penetration is much higher and growing rapidly. There are over 200 million mobile phone subscribers in India and the number continues to explode. Financial services companies are now working with mobile payment players like m Check to offer innovative mobile phone solutions to urban and rural Indian population. Reserve Bank of India has restrictions on non-bank involvement in money transfer. Therefore, development of mobile financial services applications is being sponsored primarily by banks in India. Mobile banking has the potential to bring a whole host of people that have no/little access to land lines/internet connections onto the electronic platform – an innovative way to generate financial inclusion. To do so successfully will require customer training, technology stabilization and managing carefully the ‘know your customer’ issues. In mobile banking, banks get valuable data about the customers which help them in effective customer relationship management practices. It helps in quick feedback and help in retention and customer loyalty. Mobile phones provide a way to reach out to people in isolated areas. When banks have consumer database, they can use SMS advertising to give information about their services to their existing customers. Customers enjoy “Anytime-Anywhere” banking services with their mobile phones. They need not stand in queues or Face the employees whom they don’t want to face and need not worried if the branch is not at a convenient location. It is cost effective for both the bankers and the customers.

 COMPARATIVE ADVANTAGES OVER INTERNET BANKING

 Mobile banking is different from internet banking and ATMs. Mobile banking provides ‘anytime- anywhere’ facility in true sense as compared to internet banking. Mobiles are more accessible than the internet. Still in India we have comparatively less internet users. Further out of these users a huge chunk of them uses internet through public cyber cafes. Using internet banking through cyber cafes is not considered as safe for various security reasons. The confidential information regarding personal accounts of the use may be stored in the network connection of the cyber café and hence is unsecured. Using internet from Cafes cannot be considered as ‘anytime-anywhere’ banking!. To use internet banking through private networks one need to have devices like desktop or laptop, which are not so cost effective as compared to mobiles? With the introduction of affordable handsets and reasonable tariffs by the telecommunication companies these problems of internet banking are overcome by Mobile banking. Today we can even see mobile phones in the hands of the Rickshaw pullers! Truly anywhere-everywhere! However ATMs have an advantage over the Mobile banking in the sense that cash can be withdrawn by the customers through ATMs but the same is not possible through mobile phones. However mobile banking facilitates certain transactions, payments and in beneficial as it one need not to find out its location, like that of an ATM, or stand in the queue!

 PRESENT SCENARION AND FUTURE PERCPECTIVE

India has about 207 MM mobile phone subscribers, a number that is larger than the number of bank accounts or Internet users. Given the mobile tele-density of about 20% and development of secure mobile technology solutions, banks are well-positioned bridge the digital divide and introduce the unbanked sector to the financial mainstream. Mobile banking is enjoying a rapid growth in India. It has successfully crossed the introductory stage and has now widened its scope from metropolitan cities to urban and semi urban areas and now even expanding to the rural areas. Studies and surveys show that in India, customers opt for a bank on the basis of two criteria: 1. Convenience i.e. nearness of the branch office of the bank from their place. 2. Behavior of the Bank’s employees Both the above two criteria are fully satisfied by the Mobile banking. With mobiles in their hands there is no relevance of terms like ‘convenience’ and ‘behavior’ while opting for mobile banking. Even the other forms of banking which have revolutionized the banking sector in India are proved to be effective in this regard. But there are still considerable difference between these which decides their relative importance.

FUTURE PERSPECTIVE

Mobile banking has taken a great start in India. It has already crossed the initial stages and is gaining popularity among masses. The advantages like affordable handsets, low tariffs, easy accessibility, no convenience problems have given a good initiation and take off to mobile banking but its future perspective depends upon several factors: • Security concerns • Service providers and facilitators • Regulators • Customer Awareness First and most important thing is that the customers and people must be fully informed and aware about the Mobile banking. RBI and Banks should organize Seminars, Conferences and come out with publications in this regard to raise the customer/people awareness for Mobile banking. These seminars and interactive conferences can be proved to be of great help on overcoming the issues of mobile banking like security, reliability, etc. Practical training should be provided by the Banks and RBI. RBI should issue strict security guidelines to overcome the increasing frauds in Mobile banking. Guidelines by RBI, efforts of Banks and Awareness would certainly lead to a bright and welcomed feature of Mobile Banking in India. RURAL AREAS Statistics says that only 34% of the population of India have access to banking services. More urban population will constitute ~50% of the above value. So, the % of rural people having bank accounts are very minimal. But 80% of India’s population is living in villages. Why are people in rural not having bank accounts? Banks are not accessible to the people. No. of branches in villages are very minimal. So, people haven’t seen banks in their villages. Banks are hesitant to open branches there which will eat their cost w/o any revenues. 30% of all new mobile subscribers are from rural areas . The rural market would become a huge opportunity for these mobile payment companies. The mobile phone culture is growing and has penetrated the urban and semi-urban population in India and developing in rural India rapidly. Business & Legal Issues • Considering the legal position prevalent, there is an obligation on the part of banks not only to establish the identity but also to make enquiries about integrity and reputation of the prospective customer. Therefore, even though request for opening a savings / current account can be accepted over Mobile Telecommunication, these should be opened only after proper introduction and physical verification of the identity of the customer .

 • In India, the Information Technology Act, 2000, in Section 3(2) provides for a particular technology as a means of authenticating electronic record. Any other method used by banks for authentication should be recognized as a source of legal risk. Customers must be made aware of the channel risk prior to sign up.

 • The Consumer Protection Act, 1986 defines the rights of consumers in India and is applicable to banking services as well. Considering the banking practice and rights enjoyed by customers in traditional banking, banks’ liability to the customers on account of unauthorized transfer through hacking, denial of service on account of technological failure etc. needs to be assessed and banks providing Mobile banking should consider insuring themselves against such risks, as is the case with Internet Banking.

 • Under the present regime there is an obligation on banks to maintain secrecy and confidentiality of customers’ accounts. The banks should, therefore, institute adequate risk control measures to manage such risks.

 • Banks are permitted to rely on Financial Intermediaries as recommended by the relaxed KYC guidelines issued vide RBI. A Bank can sponsor the small value remittance service by entering into arrangements with intermediaries in order to manage distribution, technology and scale • Only such banks which are licensed and supervised in India and have a physical presence in India will be permitted to offer Mobile banking products to residents of India.

 • The ‘in-out’ scenario where customers in cross border jurisdictions are offered banking services by Indian banks (or branches of foreign banks in India) and the ‘out-in’ scenario where Indian residents are offered banking services by banks operating in cross-border jurisdictions are generally not permitted and this approach will apply to Internet banking also. The existing exceptions for limited purposes under FEMA, will, however, be permitted.

 • The guidelines issued by RBI on ‘Risks and Controls in Computers and Telecommunications’ will equally apply to Mobile banking. The RBI as supervisor will cover the entire risks associated with electronic banking as a part of its regular inspections of banks

 • All banks, who propose to offer transactional services on the Mobile services, should obtain prior approval from RBI. Bank’s application for such permission should indicate its business plan, analysis of cost and benefit, operational arrangements like technology adopted, business partners, third party service providers and systems and control procedures the bank proposes to adopt for managing risks

 CONCERNS

 Mobile banking is getting wider acceptance, but the convenience it offers has its own share of risk. With the introduction of any new channel or technology such as the use of mobile devices for banking activity, financial institutions (FIs) must ensure that the perceptions and the realities surrounding security are successfully managed, both to ensure adoption and protect customers and the institution from emerging threats. Security of financial transactions, being executed from some remote location and transmission of financial information over the air, are the most complicated challenges that need to be addressed jointly by mobile application developers, wireless network service providers and the banks’ IT departments . There is a lack of common technology standards for mobile banking. Many protocols are being used for mobile banking – HTML , WAP , SOAP, XML to name a few. It would be a wise idea for the vendor to develop a mobile banking application that can connect multiple banks. It would require either the application to support multiple protocols or use of a common and widely acceptable set of protocols for data exchange. There are a large number of different mobile phone devices and it is a big challenge for banks to offer mobile banking solution on any type of device. Some of these devices support J2ME and others support WAP browser or only SMS. Another challenge for the CIOs and CTOs of the banks is to scale-up the mobile banking infrastructure to handle exponential growth of the customer base. With mobile banking, the customer may be sitting in any part of the world (true anytime, anywhere banking) and hence banks need to ensure that the systems are up and running in a true 24 x 7 fashion. As customers will find mobile banking more and more useful, their expectations from the solution will increase. Banks unable to meet the performance and reliability expectations may lose customer confidence. Due to the nature of the connectivity between bank and its customers, it would be impractical to expect customers to regularly visit banks or connect to a web site for regular upgrade of their mobile banking application. It will be expected that the mobile application itself check the upgrades and updates and download necessary patches (so called Over The Air updates) Other than above there are certain other concerns, though sound minor but are of considerable importance, are like Consistency in the Standards of service provided by Banking companies. Banks must provide proper service and also maintain its quality. Delays and below-quality service should not be there. Further a very important concern is the lack of awareness about mobile banking especially in rural areas. Village customers should be properly made aware and educated about the use of mobile banking. This can be done through the promotional programs of banking companies. This would help not only the customers by using the service effectively but also the companies as it would lead to reduction in complaints and problems from the side of customers.

 SL NO. STAKEHOLDER EXPECTATION

 i. Consumers • Personalized service • Minimal learning curve • Trust, privacy and security • Ubiquitous – anywhere, anytime and any currency • Low or zero cost of usage • Interoperability between different network operators, banks and devices • Anonymity of payments like cash

 ii. Merchants • Faster transaction time • Low or zero cost in using the system • Integration with existing payment systems • High security • Being able to customize the service • Real time status of the mobile payment service • Minimum settlement and Payment time

 iii. Telecom Network Providers • Generating new income by increase in traffic • Increased Average Revenue Per User (ARPU) and reduced churn (increased loyalty) • Become an attractive partner to content providers

 iv. Mobile Device Manufacturers • Large market adoption with embedded mobile payment application • Low time to market • Increase in Average Revenue Per User (ARPU)

 v. Banks • Network operator independent solutions • Payment applications designed by the bank • Exceptional branding opportunities for banks • Better volumes in banking – more card payments and less cash transactions • Customer loyalty

 vi. Software and Technology Providers • Large markets vii. Government • Revenue through taxation of m-payments • Standards SAFEGUARDS It is therefore even more important to be aware of the safeguards for the secure usage of this medium for financial transactions. Use the phone-lock function on your mobile device when it is not in use. Choose passwords which are difficult to crack and keep them safe. Strong passwords have eight characters or more and use a combination of letters, numerals and symbols. Never disclose via text message any personal information. Make sure your phone is configured securely, especially when it comes to configuring the Web browser and email software. Security and privacy settings can be configured without any special expertise, simply by using the ‘Help’ feature of the software, or visiting the vendor’s website. Protect the phone with security software, including a software firewall and antivirus protection. Download files only from a trusted source. Also, make sure the Bluetooth is switched off while not in use to avoid viruses. Before letting someone else have access to your device (lending it to another person, discarding, or selling your mobile device) ensure that you have deleted all personal account information. Keep the device always up-to-date with the latest patches and updates including antivirus updates. CONCLUSION The emergence of several tech start-ups in what is called the “mobile banking” business. With nearly 41% of India’s 1.1 billion population “unbanked”, mobile payment platform providers foresee a huge market in facilitating micro-lending services or variants on mobile phones at costs not possible earlier. The banking business has always been Different from other businesses because it comes under the services industry and financial services category. Everyone making a financial transaction is anxious about the security of his money. Hence, the banks, regulatory authorities and other organizations must try their best to make mobile banking system as secure as possible. The system should be error free and provide maximum security and reliability to the users. Service providers should keep in consideration the efficiency of “connectivity strength” so as not to create a bad publicity and fear among the users. The time has come for the banks to scale up their mobile banking infrastructure to handle the exponential growth in the customer base. Since it is anytime-anywhere, banks need to assure that their system remains ready for the same. As the system is proving to be more and more useful, banks must be ready to meet the expectations of customers and provide them a hassle free mobile banking experience

SERVICES PROVIDED BY MOBILE BANKING ACCOUNT INFORMATION PAYMENTS &TRANSFERS SUPPORTING SERVICES

 Transactions statements Account history Transaction alerts Monitoring of deposits Loan statements Mutual fund statements Check status/ stopping payment • insurance policy management • Pension plan management • Status on cheque, stop payment on cheque • Ordering check books • Balance checking PIN provision

 1. Domestic and international fund transfers

 2. Micro-payment handling

3. Mobile recharging

 4. Commercial payment processing

 5. Bill payment processing

 6. Peer to Peer payments

 7. Withdrawal at banking agent

  8. Deposit at banking agent Request for credit Cheque book request Locating ATMs General information Loyalty-related information Various promotional and other offers and services exchange of data messages and email, including complaint submission

By– Priyesh Sharma

Indian Law on Rape as a Criminal Offence

Indian law treats rape as a criminal offence. It falls under criminal law in India. The Indian Penal Code (IPC) defines rape as intentional, unlawful sexual intercourse with a woman, without her permission.

Section 375, of the Indian Penal Code provides that a man having sexual intercourse with a woman amounts to rape, in following circumstances, such as:

•Against her will.

•Without her permission or if the permission has been obtained forcefully or by putting her under fear.

•With her permission, when the man is aware that he is not the legal husband of the woman, but she believes that he is another man to whom she is legally wedded.

•With her consent, when she is not in proper state of mind, to judge the consequences of such an act.

•With or without her permission, when she is below sixteen years.

An offender is liable to be punished with an imprisonment of minimum 7 years to maximum 10 years and fine. Further, if the offence is committed in custody or on an expecting woman, or a woman below 12 years or gang rape, the punishment will be minimum 10 years of imprisonment.

However, the definition of rape under the Indian laws does not cover forced oral sex or sodomy. These acts are separately covered under section 354, of IPC, which deals with criminal assault and outraging the modesty of a woman. Section 377 of IPC deals with unnatural sexual acts while Indian law does not recognize forced sexual intercourse by a man with his wife, above 15 years, as an act of rape.