Intercaste Marriage in India

RAHUL SANKAR R

 

 

INTRODUCTION

 

The caste system in India forbids intercaste marriages but however due to increase of education and change in social thinking of people intercaste marriages are increasing in India. Indian society believes marrying from same caste or religion is a matter of their pride .They are not ready to accept their child’s likes or desires most of the times. In India only 11% of intercaste marriages happen with the full support and acceptance of the families. Situations are even worse in our country in a way that parents are ready to kill their or even killed their own children for marrying whom they love. From the early age itself youth are injected with casteism. From centuries this same process of injecting religion and caste into the younger minds is continuing. Nowadays we can see less of these thoughts because youth started to think in different way and they are reading today’s society clearly. This caste system clearly ruined many lives in a way that instead of an individual choosing their life, their religion and caste are deciding their life, especially love life.

Many authors and socialists tried to analyze this issue from many years but the root reason is still unknown. But according to most of the authors, people’s thinking and mindset is the key factor which demoralizes intercaste marriages. For some, it has become a custom and for some others it’s a part of their dignity and social status.

 

PROTECTING THE COUPLES AGAINST HARRASMENT

 

The caste system is a curse for the country; the sooner it is removed, the better disapproving parents can at best snap social relations with their children Feudal-minded people will be punished. Supreme Court fully encourages intercaste marriages in India and they took numerous efforts to promote intercaste marriages. In places like Uttar Pradesh, couples are given cash awards and special other allowances and also police protects these couples from harassment and ensure that they are able to live their life peacefully.

 

 

CASTE SYSTEM AND INDIA’S DEVELOPMENT

 

The concept of cast system and religious beliefs are like a bane on the path for the progress of our country. For centuries Indian society especially Hindu society has been divided on the basis of caste system and religion. The problem of caste system was so deep rooted that it took years for the Indians to come out of that idea. Even today also India is struggling to come out of this social menace. History reveals that efforts have been made by various social reformers and individuals whose name doesn’t appear in the pages of history to make India free from the clutches of caste system, untouchability and race discrimination. And when we talk about Indian marriages, which are inter-caste and interreligious, it seems like a taboo to most of the people. But in order to eradicate the caste system and race discrimination it is important that there should be inter-caste and interreligious marriages. Marriages are regarded as the most important social custom and the best means to remove the barrier of caste system. Today in Indian society though we can see inter-caste marriages but mostly it is part of the city culture. The rural parts of the country still have a long way to go.

 

INDIANS AND THEIR NEVER CHANGING MINDSETS

 

Indians have their very own orthodox mindsets and thoughts, they won’t accept the changes in the society in order for the betterment of the society, instead they start to criticize and raise questions against it. They couldn’t imagine marriages beyond the same caste. They had a conception that marriages are only possible in the same community and caste. Those who dared for the inter-caste marriage by violating the social norm had to face the consequence in terms of violence, social boycott, family boycott and death (honour killing). Even in this twenty first century, honour killing is practiced in most parts of India when there are cases of inter-caste marriages. Caste is such a rigid and water tight compartment in Indian society that it is almost next to impossible to think of a marriage between a higher caste and a lower caste. It is expected that with modernization, development, increase in educational level etc., the impact of social forces like caste, religion, various taboos etc. become weaker. The society is expected to become more broad minded, forward looking and tolerant. India has already embarked on the path of modernization, development, westernization etc. Against this background, therefore, from the researcher’s point of view, it will be quite interesting to analyze if there is any changes in marriage patterns in India especially the inter-caste marriages.

 

INTERCASTE MARRIAGE IN SOME PARTS OF INDIA

To find out the controlled effect of socio-economic variables on inter-caste marriage, logistic regression analysis is carried out in which inter-caste marriage is taken as the dependent variable. In case of India, age, place of residence, husband’s education and religion are showing significant effect on inter-caste marriage whereas women’s education, household structure, respondents’ work status, standard of living and mass media exposure do not have any significant effect on inter-caste marriage. Age has negative effect on inter-caste marriage. In urban area 14 percent women are more likely to have inter-caste marriage than in rural areas. Husband’s education also has negative effect on inter-caste marriage. Husbands with higher education are 25 percent less likely to have inter-caste marriage than illiterate husband. The likelihood of having inter-caste marriage is less for the women of other religion than the Hindu women

 

Age has a negative effect on inter-caste marriage, with the increase in age inter-caste marriage is declines. But it is significant only for the state of Tamil Nadu. Place of residence shows significant effect on inter-caste marriage in all the states except Kerala. For example likelihood of having inter-caste marriage is 69 percent higher in Punjab, two times high in Tamil Nadu and almost 4.5 times high in Rajasthan for urban women as compared to rural women. Secondary educated women are less likely to have inter-caste marriage than illiterate women in Tamil Nadu. Religion also plays an important role in inter-caste marriage. Women belonging to Muslim and other religious groups are less likely to have inter-caste marriages than Hindus in Kerala. In Tamil Nadu almost three and half times more women have inter-caste marriage belonging to other religion than Hindus. Household structure does not have any significant effect on inter-caste marriage in all the states under consideration. Working women are 78 percent more likely to have inter-caste marriage than non-working women in Punjab. Standard of living index shows negative effect on inter-caste marriage and it is significant for Punjab and Tamil Nadu. For instant in Punjab 57 percent medium class and 66 percent high class women are less likely to have inter-caste marriage than low class women. Similarly in Tamil Nadu 46 percent high class women are less likely to have inter-caste marriage than the women belonging to low class.

It is seen that only 9 percent of intercaste marriages happen in southern parts of India and the rate comes to 20 percent in states like Punjab and Sikkim.

 

 

HOW THIS AFFECTS THE YOUNGSTERS?

 

Youngsters nowadays love making friends, they never care about the communities or religion in most of the times, so there are higher chances of youngsters to have a relationship with different religions. At that time, the love-struck couples do not give much importance to the fact that they belong to different castes. But, as time comes closer for their marriages, they become more serious about the prospects of their long-love converting into marital bliss. Researches show that intercaste marriages happen mostly in urban areas than rural areas and also 97 percent of the intercaste or inter religious marriages that happen are love marriages. This system completely ruins the relationship between the youngsters in this modern days. For Indians, marriages are considered as the relationship between two families rather than relationship between two individual souls.

 

INDIA’S FIRST SHAME;HONOUR KILLING

 

MANOJ-BABLI HONOUR KILLING CASE

 

The Manoj–Babli honour killing case was the honour killing of Indian newlyweds Manoj Banwala and Babli in June 2007 and the successive court case which historically convicted defendants for an honour killing. The individuals involved in the murder included relatives of Babli (grandfather Gangaraj who is said to have been a Khap leader, brother, maternal and paternal uncles and two cousins). Relatives of Manoj, especially his mother, defended the relationship.

The killing was ordered by a gram panchayat religious caste-based council among Jats, in their Karora village in Kaithal district, Haryana.

The panchayat passed a decree prohibiting marriage against societal norms. Such caste-based councils are common in the inner regions of several Indian states, including Haryana, Punjab, western Uttar Pradesh and parts of Rajasthan, and have been operating with government approval for years. In any event, the state government expressed no concern about the ruling of the gram panchayat.

The Gram panchayat’s ruling was based on the assumption that Manoj and Babli belonged to the Banwala gotra, a Jat community, and were therefore considered to be siblings despite not being directly related and any union between them would be invalid and unethical. Nevertheless, the couple went ahead with their marriage, following which they were abducted and killed by Babli’s relatives.

 

 

In March 2010 a Karnal district court sentenced the five perpetrators to be executed, the first time an Indian court had done so in an honour killing case. The panchayat head who ordered but did not take part in the killings received a life sentence, and the driver involved in the abduction a seven-year prison term. According to Home Minister P. Chidambaram, the UPA-led central government was to propose an amendment to the Indian Penal Code (IPC) in response to the deaths of Manoj and Babli, making honour killings a “distinct offense.

 

BHAVNA-ABHISHEK HONOUR KILLING CASE

 

In a horrific reminder of how caste and family honour continue to be prized over women’s lives in India, a 21-year-old student of Delhi University’s Sri Venkateswara College was allegedly murdered by her parents for marrying her boyfriend against their wishes. The reason for her killing: the girl Bhavna had secretly married Abhishek, a boy from a different caste.

 

According to the news reports, the victim Bhavna Yadav a resident of south west Delhi, was beaten up, strangled, and her body then dumped into a car which was driven to Alwar, Rajasthan (where her parents are originally from) and hurriedly cremated. The victim’s father is a property dealer and mother a homemaker. A maternal uncle was also allegedly involved in the crime.

Bhavna secretly married Abhishek Seth, a 24-year-old assistant programmer at the Cabinet secretariat, because her parents were pressurizing her to call off her relationship with him.

Sadly, this is not the first case of honour killing in India, nor will it be the last. If one were to look at a list of crimes committed by family members against their own children who chose to marry of their free will, it would be a fairly long one. We take a look at some honour killings that have hit headlines in the past.

 

Nitish Katara Murder case of 2002:

Nitish Katara a business executive and the son of an IAS officer, was murdered on 17 February 2002, by Vikas Yadav, the son of Uttar Pradesh politician DP Yadav. Nitish had been in a relationship with DP Yadav’s daughter Bharti Yadav for a long time and the girl’s family did not approve of the relationship.

Nitish’s murder took place on the night of the wedding of a friend who was known to both him and Bharti. Katara’s body was found on a highway. He had been battered to death with a hammer, following which diesel was poured on him and he was set on fire. The murder was committed by Vikas (Bharti’s real brother) and Vishal Yadav (Bharti’s cousin brother), and Sukhdev Pehalwan (a hired contract killer).

All three have now been sentenced to life terms for abducting and killing Katara.

During the court case, which dragged on for years, the Yadav family tried to ensure that Bharti was not called in as a witness. While in court, Bharti had repeatedly denied that she was in a relationship with Nitish.

 

Nirupama Pathak murder of 2010:

In May 2010, Nirupama Pathak, who was working as journalist with a business daily in Delhi, was murdered by her family in Jharkhand because she was in a relationship with a man from a lower caste.

According to this PTI report, Nirupama was dating Priyabhanshu Ranjan a colleague and friend from her Indian Institute of Mass Communication in New Delhi and had planned to marry him in an Arya Samaj mandir.

Nirupama was found dead on 29 April in her parents’ house in Tilaya in Koderma district in Jharkhand under mysterious circumstances. Her family then filed a case of rape and abetment to suicide against Priyabhanshu which was later found to be false.

 

Asha Saini murder case of 2010:

In June 2010, Delhi witnessed a brutal honour killing in Swarup Nagar in North-east part of the city, when 19-year-old Asha Saini and her boyfriend Yogesh, 20, were tortured, electrocuted and beaten to death by the girl’s family.

As this Rediff report recounts, “the girl’s family had disapproved of Asha’s relationship with Yogesh, a driver, and had asked the boy to back off.”

The couple was tortured in a flat owned by the girl’s uncle Omprakash and even neighbours who heard the couple wailing for hours and begging for help but didn’t step in to help. Allegedly the family threatened the neighbours and told them to “mind their own business,” says the report.

No one called the police to help the couple. “From 2 am onwards I could hear the boy wailing. The girl was pleading for his life. I could sense something was fishy but couldn’t communicate with anyone as I had no access to a telephone at that hour,” one neighbour Umesh told Rediff.

While the family later claimed they killed the couple in a fit of rage as they had caught them in a compromising position.

 

 

CONCLUSION

 

India’s customary practices and religious believes are a barrier for the development of the country. People just sticks on with their unethical believes which has been carried out from their preceding generation. Instead of changing the mentalities, people try to change other people’s individuality through harassments and demoralization. It’s not too late for us to change, the more early we change, the more easily our next generation and youth will be able to lead the life which they are comfortable of. Arranged marriage scenarios should be changed and let them find their ideal and perfect companions for their life. Humanity is really at its best when people starts to love each other by crossing the barriers like religion and castes. We all are humans and no human in this world is badged with any type of religion and castes, love and care should be given priority first rather than going behind all those old meangingless beliefs which existed decades before , love each other , respect each other and care each other , by this way become a better human being !

 

RAHUL SANKAR R

BBA LLB 1st SEMESTER

 REVA UNIVERSITY

 

 

 

Real Estate Scam in India

In India many thousands of people have invested in on going projects by many builders in the country. Now these projects are under construction and are available at low rates. since possession of the projects are offered within 36 months period from the date of builder buyers agreement. Here is the twist.

Projects getting delayed.

Now if the project is delayed there is no security for consumers about their investments.only remedy available is to go to consumer forums. which have lot of pending cases. on an average a consumer case takes 4–5 years that means 4–5 years is easily granted to these builders. plus if builder loses he again can appeal at higher forums.citing hidden clauses in agreement he can fool the consumers.Even the penalty clauses are one sided and even if the consumer wins and spending 10+ years in litigation he is still a loser as he would get petty compensation which he has already lost as a interest of whatever he has invested and builder in 10+ years has gained 1000’s of customers like the consumer who has won the case. Plus cost and time is again is on consumer therefore many people don’t approach courts.

What these builders do is they divert the funds of one project to another project and again to another project. with flashy advertisement many get allured and invest heavily in these under construction project.

The builder construct a project till the skeleton of building is ready and later will stop the work to engage the labor to other project for first two years a consumer may think fast pace construction is going on and all of a sudden everything stops as at this stage the builder has collected 90% of money while only 10pc is actually been spent and rest diverted to new project.

There is another scheme like builder pays EMI or rent till possession. people allured by such schemes take huge bank loans, for few months builder pays emi and then when he stops paying the EMI, the banks comes after you.

Thousands of people are victims of this and when this end under the new bankruptcy code the builder declare himself bankrupt and foolish consumers will remain victims.

Remedies.

There are very limited remedy and that is only options buyers have one is

These days NCDRC is entertaining petition under section 12(1)(c) (class action petition) of the consumer protection act-1986, wherein joint petition can be filed on behalf of innocent consumers.

Pre-Requisites

  1. All the buyers are affected by same cause.
  2. Same relief is sought by the buyers
  3. There are many number of buyers.
  4. Grievance related to same project
  5. No default on part of buyers-All payment made

If all the conditions are fulfilled the complaint is eligible for one under 12(1)(c) of the consumer protection act 1986.

About Complaint

As per the judgement of Ambrish Kumar Shukla

A complaint under Section 12 (1)(c) of the Consumer Protection Act can be filed only on behalf of or for the benefit of all the consumers, having a common interest or a common grievance and seeking the same / identical relief against the same person. Such a complaint however, shall not be deemed to have been filed on behalf of or for the benefit of the consumers who have already filed individual complaints before the requisite
permission in terms of Section 12(1)(c) of the Consumer Protection Act is accorded.

Therefore the prayer clause have to be drafted keeping in mind that it is for the benefit for all the consumers or else the complaint will be rejected.

The content of the complaint must also not be a single party centric it should speak for all the consumers.

After the complaint is admitted in the forum any consumers who wish to proceed against the builder can file an individual application for impleadment with affidavit.

More than one complaints under Section 12(1)(c) of the Consumer Protection Act are not maintainable on behalf of or for the benefit of consumers having the same interest i.e. a common grievance and seeking the same / identical against the same person. In case more than one such complaints have been instituted, it is only the complaint instituted first under Section 12(1)(c) of the Consumer Protection Act, with the requisite permission of the Consumer Forum, which can continue and the remaining complaints filed under Section 12(1)(c) of the Consumer Protection Act are liable to be dismissed with liberty to join in the complaint instituted first with the requisite permission of the Consumer Forum.

RERA

this law is introduced and has put strict regulations on builders.

It is advisable not to invest in under construction projects in India its a scam and collectively reach consumer forums for redressal it would put pressure on builders.

Investing in real estate is a big scam

Justice Dispensation Through Alternate Dispute Resolution System In India

 INTRODUCTION

“You have undertaken to cheat me. I won’t sue you, for the law is too slow. I’ll ruin you.”

Discords are bound to arise in society and ingenious human minds have always devised ways and means for resolution of conflicts. Nature has endowed people with rationality and they have constantly attempted to discover methods of establishing a cohesive society. Dispute resolution is one of the major functions of a stable society. Through the medium of the State, norms and institutions are created to secure social order and to attain the ends of justice or the least to establish dispute resolution processes. States function through different organs and the judiciary is one that is directly responsible for the administration of justice. In commonplace perception judiciary is the tangible delivery point of justice. Resolving disputes is fundamental to the peaceful existence of society. Therefore, effective and efficient systems for determination of disputes become an obvious appendage.

 

Justice is the foundation and object of any civilized society. The quest for justice has been an ideal which mankind has been aspiring for generations down the line. Preamble to our Constitution reflects such aspiration as “justice-social, economic and political”. Article 39A of the Constitution provides for ensuring equal access to justice. Administration of Justice involves protection of the innocent, punishment of the guilty and the satisfactory resolution of disputes.

 

The world has experienced that adversarial litigation is not the only means of resolving disputes. Congestion in court rooms, lack of manpower and resources in addition with delay, cost, and procedure speak out the need of better options, approaches and avenues. Alternative Dispute Resolution mechanism is a click to that option.

 

ALTERNATIVE DISPUTE RESOLUTION: An Indian Perspective

 

Article 21 of the Constitution of India declares in a mandatory tone that ‘no person shall be deprived of his life or his personal liberty except according to procedure established by law.’ The words “life and liberty” are not to be read narrowly in the sense drearily dictated by dictionaries; they are organic terms to be construed meaningfully. Further, the procedure mentioned in the Article is not some semblance of a procedure but it should be “reasonable, fair and just”. Thus, the Right to Speedy Trial has been rightly held to be a part of Right to Life or Personal Liberty by the Supreme Court of India. The Supreme Court has allowed Article 21 to stretch its arms as wide as it legitimately can. The reason is very simple. This liberal interpretation of Article 21 is to redress that mental agony, expense and strain which a person proceeded against in criminal law has to undergo and which, coupled with delay, may result in impairing the capability or ability of the accused to defend himself effectively. Thus, the Supreme Court has held the Right to Speedy Trial a manifestation of fair, just and reasonable procedure enshrined in Article 21.

The Constitutional philosophy propounded as Right to Speedy Trial has though grown in age by almost two and a half decades; the goal sought to be achieved is yet a far-off peak. The failures of prosecuting agencies and executive to act and to secure expeditious and speedy trial have persuaded the Supreme Court in devising solutions which go to the extent of almost enacting by judicial verdict bars of limitation beyond which the trial shall not proceed and the arm of law shall lose its hold. The validity or justness of those decisions is not the matter to be decided but the seriousness of delay in the conclusion of criminal and civil matters must be appreciated at the earliest. This seriousness was appreciated and accepted by many , including the Constitutional Courts , long before. The same has got recognition from the “legislature” as well in the form of introduction of “Alternative Dispute Resolution” (ADR) Mechanism (ADRM) through various statutes.

There is a growing awareness among the masses as well regarding ADR and people are increasingly using the same for getting their disputes settled outside the court. This will also reduce the “backlog problem’ that India is facing. It is now universally accredited that ‘Justice delayed is Justice denied’. The existing justice system is not able to cope up with the ever-increasing burden of civil and criminal litigation. There is growing awareness that in the majority of cases court action is not an appropriate remedy for seeking justice. We have to formulate effective ADR Mechanisms to ease the burden of judicial functioning. The backlog of cases is increasing day by day but criticizing judiciary for the same is a wrong practice. It must be noted that the backlog is a product of “inadequate judge population ratio” and the lack of basic infrastructure. The government has to play a pro-active role in this direction.

 

WHAT IS ALTERNATIVE DISPUTE RESOLUTION

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.

The term “alternative dispute resolution” or “ADR” is often used to describe a wide variety of dispute resolution mechanisms that are short of or alternative to, full-scale court processes, established by the Sovereign or the State. The term can refer to everything from facilitated settlement negotiations in which disputants are encouraged to negotiate directly with each other prior to some other legal process, to arbitration systems or mini trials that look and feel very much like a courtroom process. It included arbitration, as also conciliation, mediation and all other forms of dispute resolution outside the courts of law, which would all fall within the ambit of ADR.

ADR facilitate parties to deal with the underlying issues in dispute in a more cost-effective manner and with increased efficacy. In addition, ADRs provide the parties with the opportunity to reduce hostility, regain a sense of control, gain acceptance of the outcome, resolve conflict in a peaceful manner, and achieve a greater sense of justice in each individual case. The resolution of disputes takes place usually in private and is more viable, economic, and efficient.

ADR is not a recent phenomenon as the concept of parties settling their disputes themselves or with the help of third party, is very well-known to ancient India. Disputes were peacefully decided by the intervention of Kulas (family assemblies), Srenis (guild so men of similar occupation), Parishad, etc., the primary object of ADR movement is avoidance of vexation, expense and delay and promotion of the ideal of “access of justice” for all.

ADR system seeks to provide cheap, simple, quick and accessible justice. Under this, disputes are settled with the assistance of third party; where proceedings are simple and are conducted, by and large, in the manner agreed to by the parties. So, precisely saying, ADR aims at provide justice that not only resolves dispute but also harmonizes the relation of the parties.

 

NEED AND THE PURPOSE OF ADR IN INDIA

The growth of A.D.R in the last few decades on the one hand reflects disenchantment with the formal justice system characterized by delays and on the other an effort to promote a less formal dispute resolution mechanism. This development is not the outcome of any juristic philosophy. Rather it was necessitated by the growth of commercial litigation needing speedy resolution, by the ever increasing volume of court work, by court dockets becoming heavier and by the judge/case ratio becoming imbalanced on account of limited resources.

In a developing country like India with major economic reforms under way within the framework of the rule of law, strategies for swifter resolution of disputes for lessening the burden on the courts and to provide means for expeditious resolution of disputes, there is no better option but to strive to develop alternative modes of dispute resolution (ADR) by establishing facilities for providing settlement of disputes through arbitration, conciliation, mediation and negotiation. 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.

In essence the system of ADR emphasizes upon:

• Mediation rather than winner take all.

• Increasing Accessibility to justice.

• Improving efficiency and reducing court delays.

The Constitution of India through Article 14 guarantees equality before the law and the equal protection of the laws. Article 39A of the Constitution mandates the State to secure that the operation of the legal system promotes justice on a basis of equal opportunity, and ensure that the same is not denied to any citizen by reason of economic or other disabilities. Equal opportunity must be afforded for access to justice. Law should not only treat all persons equally, but also the law must function in such a way that all the people have access to justice in spite of economic disparities. The expression “access to justice” focuses on the following two basic purposes of the legal system.

• The system must be equally accessible to all.

• It must lead to results that are individually and socially just.

It is one of the most important duties of a welfare state to provide judicial and non-judicial dispute-resolution mechanisms to which all citizens have equal access for resolution of their legal disputes and enforcement of their fundamental and legal rights. Poverty, ignorance or social inequalities should not become barriers to it. The workload of Indian Judiciary increased by leaps and bounds and has now reached a stage of unwieldy magnitude, which has in fact led to a large backlog of cases. Due to this ADR has become the need of the hour for Indian Judiciary. Considering the delay in resolving the dispute Abraham Lincon has once said:

“Discourage litigation. Persuade your neighbors to compromise whenever you can point out to them how the nominal winner is often a real loser, in fees, expenses, and waste of time”.

“In the same vein Judge Learned Hand commented, “I must say that as a litigant, I should dread a law suit beyond almost anything else short of sickness and of death”.

LEGISLATIVE EFFORTS IN INDIA

In Sitanna v. Viranna, AIR 1934 SC 105, the Privy Council affirmed the decision of the Panchayat and Sir John Wallis observed that the reference to a village panchayat is the time-honoured method of deciding disputes. It avoids protracted litigation and is based on the ground realities verified in person by the adjudicators and the award is fair and honest settlement of doubtful claims based on legal and moral grounds.

The legislative sensitivity towards providing a speedy and efficacious justice in India is mainly reflected in two enactments. The first one is the Arbitration and Conciliation Act, 1996 and the second one is the incorporation of section 89 in the traditional Civil Procedure Code (CPC).

The adoption of the liberalized economic policy by India in 1991 has paved way for integration of Indian economy with global economy. This resulted in the enactment of the Arbitration and Conciliation Act, 1996 (new Act) by the legislature as India had to comply with well-accepted International norms. It superseded the obsolete and cumbersome Arbitration Act, 1940. The new Act has made radical and uplifting changes in the law of arbitration and has introduced new concepts like conciliation to curb delays and bring about speedier settlement of commercial disputes. The new Act has been codified on the lines of the Model Law on International Commercial Arbitration as adopted by the United Nations Commission on International Trade Law (UNCITRAL). One of the most commendable objects of the new Act is to minimize the role of the courts in the arbitration process. The Arbitration and Conciliation Act, 1996 laid down the minimum standards, which are required for an effective ADRM.

Further, the recent amendments of the CPC will give a boost to ADR. Section 89 (1) of CPC deals with the settlement of disputes outside the court. It provides that where it appears to the court that there exist elements, which may be acceptable to the parties, the court may formulate the terms of a possible settlement and refer the same for arbitration, conciliation, mediation or judicial settlement. While upholding the validity of the CPC amendments in Salem Advocate Bar Association v. U.O.I , the Supreme Court had directed the constitution of an expert committee to formulate the manner in which section 89 and other provisions introduced in CPC have to be brought into operation. The Court also directed to devise a model case management formula as well as rules and regulations, which should be followed while taking recourse to alternative dispute redressal referred to in Section 89 of CPC. All these efforts are aimed at securing the valuable right to speedy trial to the litigants.

ADR was at one point of time considered to be a voluntary act on the apart of the parties which has obtained statutory recognition in terms of CPC Amendment Act, 1999, Arbitration and Conciliation Act, 1996, Legal Services Authorities Act, 1997 and Legal Services Authorities (Amendment) Act, 2002. The access to justice is a human right and fair trial is also a human right. In India, it is a Constitutional obligation in terms of Art.14 and 21. Recourse to ADR as a means to have access to justice may, therefore, have to be considered as a human right problem. Considered in that context the judiciary will have an important role to play.

The Supreme Court of India has also suggested making ADR as ‘a part of a package system designed to meet the needs of the consumers of justice’. The pressure on the judiciary due to large number of pending cases has always been a matter of concern as that being an obvious cause of delay. The culture of establishment of special courts and tribunals has been pointed out by the SC of India in number of cases. The rationale for such an establishment ostensibly was speedy and efficacious disposal of certain types of offences.

Industrial Disputes Act, 1947 provides the provision both for conciliation and arbitration for the purpose of settlement of disputes. In Rajasthan State Road Transport Corporation v. Krishna Kant , the Supreme Court observed: “The policy of law emerging from Industrial Disputes Act and its sister enactments is to provide an alternative dispute-resolution mechanism to the workmen, a mechanism which is speedy, inexpensive, informal and unencumbered by the plethora of procedural laws and appeals upon appeals and revisions applicable to civil courts. Indeed, the powers of the courts and tribunals under the Industrial Disputes Act are far more extensive in the sense that they can grant such relief as they think appropriate in the circumstances for putting an end to an industrial dispute.”

Section 23(2) of the Hindu Marriage Act, 1955 mandates the duty on the court that before granting relief under this Act, the Court shall in the first instance; make an endeavor to bring about reconciliation between the parties, where it is possible according to nature and circumstances of the case. For the purpose of reconciliation the Court may adjourn the proceeding for a reasonable period and refer the matter to person nominated by court or parties with the direction to report to the court as to the result of the reconciliation. [Section 23(3) of the Act].

The Family Court Act, 1984 was enacted to provide for the establishment of Family Courts with a view to promote conciliation in, and secure speedy settlement of, disputes relating to marriage and family affairs and for matter connected therewith by adopting an approach radically different from the ordinary civil proceedings . Section 9 of the Family Courts Act, 1984 lays down the duty of the family Court to assist and persuade the parties, at first instance, in arriving at a settlement in respect of subject matter. The Family Court has also been conferred with the power to adjourn the proceedings for any reasonnable period to enable attempts to be made to effect settlement if there is a reasonable possibility.

Shri M.C.Setalvad, former Attorney General of India has observed: “….equality is the basis of all modern systems of jurisprudence and administration of justice… in so far as a person is unable to obtain access to a court of law for having his wrongs redressed or for defending himself against a criminal charge, justice becomes unequal …Unless some provision is made for assisting the poor men for the payment of Court fees and lawyer’s fees and other incidental costs of litigation, he is denied equality in the opportunity to seek justice.”

WHAT ARE THE MECHANISMS OF ADR?

ADR can be broadly classified into two categories; court-annexed options (it includes mediation, conciliation) and community based dispute resolution mechanism (Lok- Adalat).

The mechanism of Arbitration and Conciliation was introduced in India through the Arbitration and Conciliation Act, 1996: Part I of this act formalizes the process of Arbitration and Part III formalizes the process of Conciliation. (Part II is about Enforcement of Foreign Awards under New York and Geneva Conventions.).

 

Arbitration: is a procedure in which the dispute is submitted to an arbitral tribunal which makes a decision (an award) on the dispute that is binding upon the parties. Arbitration generally grows when the parties through the contract agrees to resort to arbitration process, in case of disputes that may arise in future regarding contract terms and conditions. The process of arbitration can start only if there exist a valid Arbitration Agreement between the parties prior to the emergence of the dispute. As per Section 7, such an agreement must be in writing. The contract, regarding which the dispute exists, must either contain an arbitration clause or must refer to a separate document signed by the parties containing the arbitration agreement. The existence of an arbitration agreement can also be inferred by written correspondence such as letters, telex, or telegrams which provide a record of the agreement. Any party to the dispute can start the process of appointing arbitrator and if the other party does not cooperate, the party can approach the office of Chief Justice for appointment of an arbitrator. A sole arbitrator or panels of arbitrators so appointed constitute the Arbitration Tribunal. The arbitration tribunal has jurisdiction over its own jurisdiction. Thus, if a party wants to challenge the jurisdiction of the arbitration tribunal, it can do so only before the tribunal itself. If the tribunal rejects the request, there is little the party can do accept to approach a court after the tribunal makes an award. Section 34 provides certain grounds upon which a party can appeal to the principal civil court of original jurisdiction for setting aside the award. Once the period for filing an appeal for setting aside an award is over, or if such an appeal is rejected, the award is binding on the parties and is considered as a decree of the court.

Conciliation: A non-binding procedure, in which an impartial third party i.e. the conciliator or the mediator, assists the parties to a dispute in reaching a mutually satisfactory and agreed settlement of disputes. Conciliation is a less formal form of arbitration. This process does not require an existence of any prior agreement. Any party can request the other party to appoint a conciliator. One conciliator is preferred but two or three are also allowed. Parties may submit statements to the conciliator describing the general nature of the dispute and the points at issue. Each party sends a copy of the statement to the other. The conciliator may request further details, may ask to meet the parties, or communicate with the parties orally or in writing. Parties may even submit suggestions for the settlement of the dispute to the conciliator.

When it appears to the conciliator that elements of settlement exist, he may draw up the terms of settlement and send it to the parties for their acceptance. If both the parties sign the settlement document, it shall be final and binding on both.

Mediation: Mediation, aims to assist two (or more) disputants in reaching an agreement. The parties themselves determine the conditions of any settlements reached— rather than accepting something imposed by a third party. The disputes may involve (as parties) states, organizations, communities, individuals or other representatives with a vested interest in the outcome. Mediators use appropriate techniques and/or skills to open and/or improve dialogue between disputants, aiming to help the parties reach an agreement (with concrete effects) on the disputed matter. Normally, all parties must view the mediator as impartial. Disputants may use mediation in a variety of disputes, such as commercial, legal, diplomatic, workplace, community and family matters. A third-party representative may contract and mediate between (say) unions and corporations. When a workers’ union goes on strike, a dispute takes place, and the corporation hires a third party to intervene in attempt to settle a contract or agreement between the union and the corporation.

 

Negotiation: Negotiation is a dialogue intended to resolve disputes, to produce an agreement upon courses of action, to bargain for individual or collective advantage, or to craft outcomes to satisfy various interests. It is the primary method of alternative dispute resolution. Negotiation occurs in business, non-profit organizations, and government branches, legal proceedings, among nations and in personal situations such as marriage, divorce, parenting, and everyday life. Those who work in negotiation professionally are called negotiators. Professional negotiators are often specialized, such as union negotiators, leverage buyout negotiators, peace negotiators, hostage negotiators, or may work under other titles, such as diplomats, legislators or brokers.

Lok-Adalat: The Lok-Adalat system contributed under National Legal Service Authority Act, 1987 is a uniquely Indian approach. The Constitutional duty of the State to provide legal aid, prompted by the decisions of the apex court, led to the formation of a Committee for Implementing Legal Aid Schemes (CILAS). The legal legitimacy of Lok Adalat flows from the Legal Services Authorities Act, 1987. It roughly means “People’s court”. This is a non-adversarial system, where by mock courts (called Lok Adalats) are held by the State Authority, District Authority, Supreme Court Legal Services Committee, High Court Legal Services Committee, or Taluk Legal Services Committee, periodically for exercising such jurisdiction as they thinks fit. These are usually presided by retired judge, social activists, or members of legal profession. It does not have jurisdiction on matters related to non-compoundable offences. There is no court fee and no rigid procedural requirement (i.e. no need to follow process given by Civil Procedure Code or Evidence Act), which makes the process very fast. Parties can directly interact with the judge, which is not possible in regular courts. A case can be transferred to a Lok Adalat if one party applies to the court and the court sees some chance of settlement after giving an opportunity of being heard to the other party. The focus in Lok Adalats is on compromise. When no compromise is reached, the matter goes back to the court. However, if a compromise is reached, an award is made and is binding on the parties. It is enforced as a decree of a civil court. An important aspect is that the award is final and cannot be appealed, not even under Article 226 because it is a judgment by consent. All proceedings of a Lok Adalat are deemed to be judicial proceedings and every Lok Adalat is deemed to be a Civil Court. Main condition of the Lok Adalat is that both parties in dispute should agree for settlement. The decision of the Lok Adalat is binding on the parties to the dispute and its order is capable of execution through legal process. Lok Adalat is very effective in settlement of money claims. Disputes like partition suits, damages and matrimonial cases can also be easily settled before Lok Adalat. Lok Adalat is a boon to the litigant public, where they can get their disputes settled fast and free of cost.

 

HOW TO MAKE ADR SYSTEM MORE VIABLE???

We cannot stop the inflow of cases because the doors of justice cannot be closed, but we can increase the outflow of cases either by strengthening (both qualitatively and quantitatively) the capacity of the existing system or by way of finding some additional outlets.

In this situation ADR mechanism implementation can be such a drastic step for which three things are required most:

• Mandatory reference to ADRs

• Case management by Judges

• Committed teams of Judges and Lawyers

 

Equal justice for all is a cardinal principle on which entire system of administration of justice is based. We cannot conceive justice which is not fair and equal. We should aim to achieve earlier and more proportionate resolution of legal problems and disputes by increasing advice and assistance to help people resolve their disputes earlier and more effectively; increasing the opportunities for people involved in court cases to settle their disputes out of court; and reducing delays in resolving those disputes that need to be decided by the courts.

To implement the noble ideas and to ensure the benefits of ADR to common people, the four essential players (government, bench, bar litigants) are required to coordinate and work as a whole system. Case management includes identifying the issues in the case; summarily disposing of some issues and deciding in which order other issues to be resolved; fixing time tables for the parties to take particular steps in the case; and limiting disclosure and expert evidence.

• Government: Government has to support new changes. If the government support and implements changes ADR institutes will have to be set up at every level from district to national level.

• Bench: unless mindsets of the judges are changed, there will be no motivation for the lawyers to go to any of the ADR methods.

• Bar: the mindset of the members of the Bar is also to be changed accordingly otherwise it would be difficult it is difficult to implement ADR. The myth that ADR was alternative decline in Revenue or Alternative Drop in Revenue is now realizing that as more and more matters get resolved their work would increase and not decrease.

• Litigants: few parties are usually interested in delay and not hesitate in taking a stand so as to take the benefit if delay. Parties have to realize that at the end, litigation in court may prove very costly to them in terms of both cost and consequence.

 

SUGGESTIONS

ADR is quicker, cheaper, and more user-friendly than courts. It gives people an involvement in the process of resolving their disputes that is not possible in public, formal and adversarial justice system perceived to be dominated by the abstruse procedure and recondite language of law. It offers choice: choice of method, of procedure, of cost, of representation, of location. Because often it is quicker than judicial proceedings, it can ease burdens on the Courts. Because it is cheaper, it can help to curb the upward spiral of legal costs and legal aid expenditure too, which would benefit the parties and the tax payers. In this juncture, few things are most required to be done for furtherance of smooth ADR mechanisms. Few of them are:

 

• Creation of awareness and popularizing the methods is the first thing to be done.

• NGOs and Medias have prominent role to play in this regard.

• For Court- annexed mediation and conciliation, necessary personnel and infrastructure shall be needed for which government funding is necessary.

Training programs on the ADR mechanism are of vital importance. State level judicial academies can assume the role of facilitator or active doer for that purpose. While the Courts have never tired of providing access to justice for the teeming millions of this country, it would not be incorrect to state that the objective would be impossible to achieve without reform of the justice dispensation mechanism. There are two ways in which such reform can be achieved- through changes at the structural level, and through changes at the operational level:

• Changes at the structural level challenge the very framework itself and require an examination of the viability of the alternative frameworks for dispensing justice. It might require an amendment to the Constitution itself or various statutes.

• On the other hand, changes at the operational level require one to work within the framework trying to identify various ways of improving the effectiveness of the legal system. Needless to say, this will considerably reduce the load on the courts apart from providing instant justice at the door-step, without substantial cost being involved. This is also avoiding procedural technicalities and delays and justice will hopefully be based on truth and morality, as per acknowledged considerations of delivering social justice.

 

CONCLUSION

As is said in the practical philosophy of law that lawyers are what their cases have made them, so goes the addendum that a legal system is venerated as it has been handled and managed in course of time. Then only a legacy is left for the future to find it sufficiently germane to be accepted as a proposition of inheritance. The law and legal system should appeal the reasons of people, is not a legal principle but a common sense observation of fact. It is this spirit that has led to the evolution of ADR Mechanisms for the dispensation of justice with efficacy and steadfastness!

The Constitution of India calls upon the state to provide for free legal aid to ensure that opportunities for securing justice are not denied to any citizen by reason of economic inability. India socio-economic conditions warrant highly motivated and sensitized legal service programs as large population of consumers of justice (heart of the judicial anatomy) are either poor or ignorant or illiterate or backward, and as such, at a disadvantageous position. The State, therefore, has a duty of secure that the operation of legal system promotes justice on the basis of equal opportunity.

As per latest available information, 57,179 cases were pending in the Supreme Court of India as on 30.6.11. The number of cases pending in the High Courts were 42, 17,903 as on 30.9.2010. Shri Salman Khurshid, Minister of Law & Justice said that in order to facilitate expeditious disposal of cases in courts, Government has taken a number of measures as mentioned below:

The Government has approved setting up of ‘National Mission for Justice Delivery and Legal Reforms’. The major goals are:

• Increasing access by reducing delays and arrears in the system;

• Enhancing accountability through structural changes and by setting performance standards and capacities.

Enactment of the Gram Nyayalayas Act, 2008 which provides for establishment of Gram Nyayalayas to improve access to justice to marginalised. The current year allocation has been increased from Rs. 40 crore to Rs. 150 crore. So far 151 Gram Nyayalayas have been notified by the states. In order to computerise the justice delivery system Government is implementing e-Courts Project for the District and Subordinate Courts in the country.

The Government has accepted the recommendations of the Thirteenth Finance Commission to provide a grant of Rs. 5000 crore to the States for improving the justice delivery system in the country over a five year period 2010-15. With the help of these grants, the States can, inter-alia, set up morning / evening / shift / special magistrates’ courts, appoints court managers, establish ADR centres and provide training to mediators / conciliators, organise more Lok Adalats to reduce pendency. The grants also provide for training of judicial officers, strengthening of State Judicial Academies, and training of public prosecutors and maintenance of heritage court buildings.

Former Minister of Law and Justice, Veerappa Moily announced the ‘National Litigation Policy’ (NLP) to reduce the average time of pending cases in India. The NLP aims at reducing government litigation in courts. Launching the NLP to make government an “efficient and a responsible” litigant, Moily said, “Monitoring and review mechanism proposed under it would prevent delay or neglect of important cases such as the Bhopal gas tragedy.” The Law Minister had in October 2009 released a vision statement at a two-day conference on National Consultation for Strengthening the Judiciary towards Reducing Pendency and Delays to reduce the backlog of cases. However, some of the suggestions laid out in the vision statement have not been included in the NLP such as introduction of night courts, appointment of judges on a contractual basis and establishment of a National Arrears Grid.

Mahatma Gandhi had put in correct words as:

“I had learnt the true picture of law. I had learnt to find out the better side of human nature and to enter men’s heart. I realized that the true function of a lawyer was to unite parties riven asunder. The lesson was so indelibly burnt into me that a large part of my time during the twenty years of my practice as a lawyer was occupied in bringing about private compromised of hundreds of cases. I lost nothing thereby not even money certainly not my soul.”

In the days of “time being money”, even in games like cricket, we have drifted towards one day, limited over matches instead of the five days, two inning matches. Arbitration, as practiced in India, instead of shortening the lifespan of the dispute resolution, became one more “inning” in the game. Not only that, the arbitrator and the parties’ lawyers treated arbitration as “extra time” or overtime work to be done after attending to court matters.

The disillusionment and frustration of people over the inordinate delay in dispensation of justice today looms large as a great threat to erode the confidence of people in the justice system of the country. It is the constitutional obligation of the judiciary to exercise its jurisdiction to reaffirm the faith of the people in the judicial set up. Therefore, evolution of new juristic principles for dispute resolution is not only important but imperative.

REFERENCES

 

• Alternative Dispute Resolution: Negotiation and Mediation, Madabhushi Sridhar, Lexisnexis Butterworth, Wadhwa Nagpur.

 

 

• Arbitration & ADR (An essential revision aid for Law Students), Universal Law Series, Universal Law Publishing Company Ltd.

• The Law and Practice of Arbitration and Conciliation by O.P.Malhotra & Indu Malhotra

Lexisnexis, Butterworth, Wadhwa Nagpur.

• Law of Arbitration and Conciliation, Avtar Singh, 2006, Eastern Book Company Ltd.

• Alternative Dispute Resolution: What it is and how it works, (Reprint), Rao P.C. & William Sheffield, Universal Law Publishing Company Ltd.

• Arbitration Agreements & Awards (2nd Edn.), Bansal Ashwinie Kumar , Universal Law Publishing Company Ltd.

• Arbitration Business & Commercial Laws, Lakshmanan AR , Universal Law Publishing Company Ltd.

• International Commercial Arbitration & Its Indian Perspective, Sethi & Gupta , Universal Law Publishing Company Ltd.

• Commentary on the Arbitration and Conciliation Act, (Introduction by Fali S. Nariman), 5th Edn., Malik Justice S.B , Universal Law Publishing Company Ltd.

• Textbook on Arbitration & Conciliation with Alternative Dispute Resolution, 2nd Edn., Saharay Madhusudan , Universal Law Publishing Company Ltd.

• Mediation Practice and law, Sriram Panchu, Lexisnexis Butterworth, Wadhwa Nagpur.

• Law Commission of India, 188th Report on Proposals for Constitution of Hi-Tech Fast – Track Commercial Division in High Courts December, 2003.

• Law Commission of India, 76th Report on Arbitration act, 1940, November, 1978.

• Law Commission of India, 114h Report on Gram Nyayalayas, August 1986.

• Law Commission of India, 215th Report on L. Chandra Kumar be revisited by Larger Bench of Supreme Court

• Law Commission of India, 221st Report on Need for Speedy Justice – Some Suggestions, April, 2009.

• Law Commission of India, 222nd Report on Need for Justice-dispensation through ADR etc, April, 2009.

CHILD LABOUR IN INDIA-PRESENT SCENARIO

Jyoti Angrish

Every child is a gift of God –a gift must be nurtured with care and affection, with in the family and society. But unfortunately due to socio-economic and cultural problems, the code of child centeredness was replaced by neglect, abuse and deprivation, particularly in the poverty afflicted sections of the society. (1) While child labour is a complex problem that is basically rooted in poverty.(2) The strategy of progressive elimination of child labour underscores India’s legislative intent, and takes cognizance of the fact that child labour is not an isolated phenomenon that can be tackled without simultaneously taking into account the socio-economic milieu that is at the root of the problem.(3). An International Moral Code of Right and Wrong Behavior said that “human rights and fundamental freedoms are the birthright of all human beings” and as a result such rights may neither be granted nor be taken away by legislation.(4)

The position of India in terms of child labour is not an appreciable one; with a credible estimates ranging from 60 to 115 million, India has the largest number of working children in the world. Whether they are sweating in the heat of stone quarries, working in the fields 16 hours a day, picking rags in the city streets, or hidden away as domestic servants, these children endure miserable and difficult lives. They earn little and are made to work more. They struggle to make enough to eat and perhaps to help feed their families as well.

They do not go to school. Many of them have been working since the age of four or five, and by the time they attain adulthood they may be irrevocably sick and deformed they will certainly be exhausted, and in this way they are debarred from enjoying the basic human rights, which are essential for the advancement of one’s personality. (5) According to the statistics given by Indian government there are 20 million child labourers in the country, while other agencies claim that it is 50 million. (6)

Child labour is a conspicuous problem in India. Its prevalence is evident in the child work participation rate, which is more than that of other developing countries. Poverty is the reason for child labour in India. The meager income of child labourers is also absorbed by their families. The paucity of organized banking in the rural areas creates a void in taking facilities, forcing poor families to push their children in harsh labour, the harshest being bonded labour.(7) That declaration stated that all ILO members have an obligation “to respect, to promote and to realize in good faith” a set of fundamental rights which include freedom of association the effective recognition of the right to collective bargaining the elimination of all forms of forced or compulsory labour the effective abolition of child labour and the elimination of discrimination in respect of employment and occupation. (8)

Rights of Children under International Law

The concept of equality of all human beings, as embodied in the Universal Declaration of Human Rights of I948 stipulates under Article 25para 2 that childhood is entitled to special care and assistance. The above principle along with other principles of the Universal Declaration concerning child were incorporated in the Declaration of the Rights of the Child of 1959.The International Covenant on Civil and Political Rights under Articles 23 and 24 and the International Covenant on Economic, Social and Cultural Rights under Article 10 made provisions for the care of the child. (9) However the International Labour Organization (ILO) provides universal standards and guidelines. The ILO, a specialized agency of the UN, aims to provide guidance and standards for labour practices around the world. The International Convention and other international instruments, (10) which deal with the subject of child labour are as follows:

1. Convention on the Rights of the Child, 1989.

2. Worst Form of Child Labour Convention, 1999; and

3. Worst Form of Child Labour Recommendation

The International Program on the Elimination of Child Labour (IPEC) is a global program launched by the International Labour Organization in December, 1991. India was the first country to join it in 1992 when it signed a Memorandum of Understanding (MOU) with ILO. The MOU that expired on 31.12.1996 has been extended from time to time and has recently been extended till 31st December, 2006. The long-term objective of IPEC is to contribute to the effective abolition of child labour. (11) IPEC-India has, during the period 1992-2002, supported over 165 Action Programs.

The Govt. of India and the US Department of Labour have also initiated a US$ 40 million project aimed at eliminating child labour in 10 hazardous sectors across 21 districts in five States namely, Maharashtra, Madhya Pradesh, Tamil Nadu, Uttar Pradesh and NCT of Delhi. This project, popularly known as INDUS, is being implemented by ILO. An estimated 80,000 children will be withdrawn and rehabilitated through this project. Support activities will also be directed to 10,000 families of former child workers. (12) On 20 November 2009, the global community celebrates the 20th anniversary of the adoption by the United Nations General Assembly of the Convention on the Rights of the Child, the unique document that sets international standards for the care, treatment and protection of all individuals below age 18. (13)

Rights of Children under National Laws

India has all along followed a proactive policy in the matter of tackling the problem of child labour. India has always stood for constitutional, statutory and development measures required eliminating child labour. The Indian Constitution has consciously incorporated provisions to secure compulsory universal elementary education as well as labour protection for children. Labour Commissions in India have gone into the problems of child labour and have made extensive recommendations. (14) The Constitution of India, too provides certain rights to children and prohibits child labour. Such provisions are as follows:

1. No child below the age of 14 years shall be employed in any factory or mine or engaged in any other hazardous work. (15)

2. State, in particular, shall direct its policy towards securing that the health and strength of workers, men and women and the tender age of the children are not abused and that citizens are not forced by economic necessity to enter vocations unsuited to their age or strength.(16)

3. Children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitations and against moral and material abandon. (17)

4. The state shall endeavor to provide, within the period of 10 years from the commencement of the Constitution, free and compulsory education for all children until they complete the age of 14 years. (18)

5. The state shall provide free and compulsory education to all children between the ages of six to 14 years in such a manner as the state may by law determine (19)

6. Who is parent or guardian to provide opportunities for education to his child or the case may be, ward between the age of six and14years. (20)

There are a wide range of laws, which guarantee to a substantial extent the rights and entitlement as provided in the constitution and in the UN convention. Some of them are given below:

1. The Apprentices Act, 1861

2. The Child Labour Act, 1986

3. The Child Marriage Restraint Act, 1929

4. The Children (pledging of labour) Act, 1929

5. Children Act, 1960.

6. The Guardian and Wards Act, 1890

7. The Hindu Minority and Guardianship Act, 1956

8. The Hindu Adoption and Maintence Act, 1956

9. The Immoral Traffic (Prevention) Act, 1956

10. Juvenile Justice Act, 1986

11. The Orphanages and other charitable Homes (supervision and control) Act, 1960

12. Probation of offenders Act, 1958

13. Reformatory schools Act, 1857

14. The women’s and children’s institutions (licensing) Act, 1956

15. The young persons (Harmful publications) Act, 1956

Apart from these laws mainly concerning children, there are a host of related welfare and criminal laws, which have beneficial provisions for the case, and protection of children. Even the laws relating to commerce, industry and trade have protective provisions beneficial to children.

The first Act in India relating to child labour was the Enactment of Children (Pledging of Labour) Act of February 1933. The child of today is the future of our country. So the investment made on children is an asset for the future of our country. As a child is not a vase to be filled, but a fire to be lit, they should not be exploited by engaging them in employment in tender age but they should be given all necessary amenities and support so that they become responsible citizens of the nation and make the world a happier place to live in. (21) Children under fourteen constitute around 3.6% of the total labour force in India. Of these children, nine out of every ten work in their own rural family settings. Nearly 85% are engaged in traditional agricultural activities. Less than 9% work in manufacturing, services and repairs. Only about 0.8% works in factories. (22)

In 1979, Government formed the first committee called Gurupadswamy Committee to study the issue of child labour and to suggest measures to tackle it. The Committee examined the problem in detail and made some far-reaching recommendations. It observed that as long as poverty continued, it would be difficult to totally eliminate child labour and hence, any attempt to abolish it through legal recourse would not be a practical proposition. The Committee felt that in the circumstances, the only alternative left was to ban child labour in hazardous areas and to regulate and ameliorate the conditions of work in other areas. It recommended that a multiple policy approach was required in dealing with the problems of working children.

Based on the recommendations of Gurupadaswamy Committee, The Child Labour (Prohibition and Regulation) Act, 1986 was passed. This Act prohibits the employment of children below the age of 14 in factories, mines and in other forms of hazardous employment, and regulates the working conditions of children in other employment. Sec.3 of this Act imposes prohibition on employment of children in dhabas, restaurants, hotels, motels, tea shops, resorts, spas or other recreational centre’s etc. (23) Recently, child labour is totally banned by the government with free education and other facilities to the child upto the age of 14. The list of hazardous occupations and processes is progressively being expanded on the recommendation of Child Labour Technical Advisory Committee constituted under the Act. (24)

According to a 2001 census, an estimated 185,595 children are employed as domestic help and in small roadside eateries. Most child domestic workers in India are trafficked by placement agencies operating in states like Orissa, Jharkhand, Uttar Pradesh and Bihar.(25) India has announced a National Policy of Child Labour as early as 1987, and was probably the first among the developing countries to have such a progressive policy. Through a notification dated May 26, 1993, the working conditions of children have been regulated in all employment not prohibited under the Child Labour (Prohibition and Regulation) Act, 1986. Further, following up on a preliminary notification issued on October 5, 1993, the government has also prohibited employment of children in occupations such as abattoirs/slaughter houses, printing, cashew de-scaling and processing, and soldering.(26) Child labour would be abolished in hazardous occupations by the year 2000, reflects a national consensus and commitment. After this declaration, several far-reaching initiatives have been taken by the Government to effectively tackle the problem (27) India’s National Policy on Education, 1986 gives the highest priority to the program of universal elementary education, and recommends that free and compulsory education of sufficient quality be provided to all children up to the age of 14 years before we enter the 21st century. The present thrust is on three aspects, namely, universal access and enrollment, universal retention of children up to 14 years of age, and substantial improvement in the quality of education to enable all children to achieve essential levels of learning. All these aspects have been incorporated in the various initiatives taken up by the Ministry of Human Resource Development.(28)

Role of Judiciary

Indian higher judiciary has played good role in protecting rights of children and specifically in the case of child labour. The Supreme Court of India, in its M.C. Mehta Vs State of Tamil Naidu (29) has given certain directions regarding the manner in which children working in the hazardous occupations are to be withdrawn from work and rehabilitated, and the manner in which the working conditions of children working in non-hazardous occupations are to be regulated and improved. Withdrawal of children working in hazardous industries and ensuring their education in appropriate institutions; Contribution of Rs.20,000 per child to be paid by the offending employers of children to a welfare fund to be established for this purpose; Employment to one adult member of the family of the child so withdrawn from work, and if that is not possible a contribution of Rs.5000 to the welfare fund to be made by the State Government; Financial assistance to the families of the children so withdrawn to be paid out of the interest earnings on the corpus of Rs.20,,000/25,000.00 deposited in the welfare fund as long as the child is actually sent to the schools; Regulating hours of work for children working in non-hazardous occupations so that their working hours do not exceed six hours per day and education for at least two hours is ensured. The entire expenditure on education is to be borne by the concerned employer; as a follow up of the directions of the Supreme Court, all the State Governments were sent detailed guidelines on December 26, 1996 indicating the manner in which the directions of the Supreme Court were to be implemented. A meeting of the NAECL was convened on 31st December 1996 to discuss the directions of the Supreme Court on child labour. It was decided in the meeting that the Ministry of Labour should immediately release funds to the State Governments so as to enable them to conduct surveys of working children before June 10, 1997.

With child labour are filled with a high poverty level. These children have no choice but to go and work because if they don’t they will starve and die. Child labour for these children is survival; there are no other chances for them. None of these children have the privilege of going to school and being able to go to a house at the end of a day. Most of these children work from the crack of dawn and don’t stop working till late into the night.(30)

Child labour in India is a human right issue for the whole world. It is a serious and extensive problem, with many children under the age of fourteen working in carpet making factories, glass blowing units and making fireworks with bare little hands. According to the statistics given by Indian government there are 20 million child labourers in the country, while other agencies claim that it is 50 million. (31) According to the statistics given by ILO and other official agencies 73 million children between 10 to 14 years of age reemployed in economic activities all over the world. The figure translates into 13.2 of all children between 10to14 being subjected to child labour. (32) The child labour is prevalent at a large scale in the country. In Punjab it is found in hotels, restaurant, tea-stalls, rag collecting as domestic help in brick killen etc. for which the authorities ,parents ,educationist, police and employers or responsible. There is lack of implementations of child laws .Since politicians and other authorities exert pressure not to prosecute the child law violators. There are instances of bounded child labour are found in Punjab but the authorities ignore it and the various departments for the implementation of labour laws either lack funds or lack will to prosecute the child law defaulters and the laws remain merely on the paper for which the lack of control of population and increasing unemployment or the major causes and the politicians fear to tackle these problems in view of their vote banks.

Suggestions – The Govt. should take proper effective steps to decrease the population and give the employment to the parents of child labour. Necessary practical steps should be taken to educate the children. Provided the necessary sufficient funds to the organizations working for the education and removal of child labour. There should be effective implementations of child protective laws. There should be necessary prosecution of child labour defaulters. The involvement of the religious leaders, trade unionist and non government organizations and to tackle the child labour by forming advisory committees on child labour on block level should be there. The authorities should not bend before the pressure of the politicians while tackling the problems of child labour.

Conclusion- At present, inspite of policy of the government regarding removal of child labour. The various steps taken in this direction and the laws passed about it haven’t controlled the ongoing child labour. This is possible only with the co-operation of all sections of the society and the law enforcement agencies and by removing or minimizing the causes of child labour. The main thrust should be on controlling the population of the country, education of the children and providing sufficient funds for its removal from the gross domestic product of India.

REFERENCES

1. Dr. Jaspal Singh: Rights of children under Indian constitution and the convention of Rights of Children 1989: An Appraisal-Law journal Guru Nanak Dev University, vol. XIII, 2004

2. Child Labour and India – Embassy of India, Washington, DC.mht

3. Ibid;

4. Roy J. Adams: Labour Rights as Human Right: Implication of the International Consensus

5. Ibid;

6. www.childlabour.in

7. Ibid;

8. Supra; 4

9. Supra note 6. Violation of child labour laws in India

10. Ibid;

11. http://www.labour.nic.in,international program on child labour

12. Ibid;

13. Child Labour India Environment Portal.mht

14. Supra note 2.

15. The Constitution of India, Art.24

16 Ibid; Art.39 (e)

17. Ibid; Art. 39(f)

18. Ibid; Art.45

19. Ibid; Art.21-A. (added by the 86th Amendment Act 2002).

20. Ibid; Art. 51A (k) (added by the 86th Amendment Act 2002).

21. Supra note; 4.

22. Supra note; 2.

23. Added by S.O. 1742 (E) dated 10th October 2006.

24. www.labour.nic.in; national child labour project.

25. India News – Child labour ban mostly on paper.mh

26. Supra note; 24.

27. Ibid;

28. Ibid;

29. AIR 1991 S.C. 417

30. http://www.exampleessays.com/viewpaper/36110.html

31. www.childlabour.in

32. Ibid; Child Labour Today

 

India & Lok Pal Bill

Lok Pal Bill

Bhartendu Yadav

INTRODUCTION:

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

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

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

 


 

 

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

 

 

 

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

 

 

 

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

 

 

 

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

 

 

 

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

 

 

 

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

 

 

 

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

 

 

 

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

 

 

 

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

 

 

 

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

 

 

 

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

 

 

 

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

 

 

 

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

 

 

 

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

 

 

 

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

 

 

 

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

 

 

 

[17] “thelinkpaper.ca/?p=5316”.

 

 

 

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

 

 

 

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

 

 

 

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

 

 

 

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

 

 

Stamping and Proxies in India

stampingMs. Stuti Bansal

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

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

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


 

 

[1] AIR 1928 Bom 80

 

 

 

 

[2] Jetibai v. Ramchandra, 13 Bom 484

 

 

 

[3] 1988 64 CompCas 775 Cal

 

 

 

[4] 27 Bom LR 1118

 

 

DISCRIMINATION AGAINST NORTH EAST WOMEN IN INDIA

The conquest of the earth, which mostly means the taking it away from those who have a different complexion or slightly flatter noses than ourselves, is not a pretty thing when you look into it.  ~Joseph Conrad, (Heart of Darkness)

Racism can never be justified. Yet we in our own country are insulated from the reality; not aware that there is one part of our country which, in addition to being victimised through socio-economic unrest, insurgent problems and political issues has become a target to one of the earliest forms of discrimination- RACISM.

Racism has been defined by the United Nations as: ‘any distinction, exclusion, restriction or preference based on race, colour descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life’[1]. Recognition and Redressal being the essentials; it is in this context that the discrimination meted out to the North East people in our country needs to be recognised. Only when a problem is named can the situation be addressed.

Racism has three main elements i) a vision that society is composed of inherently different groups, ii) a delusional belief that due to the persistence and mutation of the race, people are different and should not interact and iii) this ‘difference’ is what becomes into a programme of political action[2]. There is ofcourse no theory till date (hopefully would not be in the future) which can justify Racism on people outside a country but it is hard to believe that people within India are meted with such inhuman treatment and still no one bats an eyelid.

India is home to various cultures, ethnic groups and this is not something which the people of our country are unaware of. Over centuries, India has always been looked up as to a civilisation which has borne the pressure of multi-everything. Historically the north east was never part of ‘mainland’ India[3]. There were hues and cries for self-determination which were unheard thus consequently the people (of the Mongoloid Stock) in the North East were then officially perceived as primitives or in isolation[4] and this perception has, unfortunately not changed. There is widespread discrimination against North east people (women being the soft targets) especially in Delhi but the tragic part of the story being that this ‘infection’ has spread to various parts of our country, with cities like Bangalore, Chennai also being part to the utter disgrace.

The Challenge of Equality

In India the need for an egalitarian society has been since forever which has generated many legal scholars, laws, legal institutions yet the dream of an ideal equal society is delusional and impossible in a society which is characterised by inequality. Countries have been drafting their Constitutions guaranteeing equality and non-discrimination nevertheless the scourge of inequalities continues to persist. Tolerance has been stated to be the answer to all questions concerning inequality but this tolerance has taken the form of segregation, subjugation and exploitation[5].

The construction of our constitution in this regard has been very interesting as in the last sixty years the scheme of the constitution has been to avoid caste-based and gender-based discrimination. India has had to suffer more through the hands of caste based discrimination, racism being a global phenomenon[6]. Inspite of having adopted the UN Conventions for over fifty years, incidence of racial discrimination, exploitation of marginalised groups are on a rise[7]. This just makes any right to an equal life without discrimination at a macro level, a myth[8]. The end of Apartheid is just the beginning of a surge against the various forms of racial abuse.

The Committee on the Elimination of Racial Discrimination was the first body created by the UN to review the measures taken by the member states to eliminate racial discrimination[9]. The reports submitted by India have always been in relation to steps taken to remove discrimination against Schedule Caste and Schedule Tribes. Indian government has always been pro-active in determining the rights of people against racial discrimination not only in South Africa but also of Asian races in the US but now it is time clean our home.

A VIEW OF RACISM THROUGH THE GENDER LENS

The culture in the North East is in stark contrast to the culture which is prevalent in the mainland. North East has always been advanced in the sense of providing equal freedom to the women of the region. Women here have always enjoyed greater mobility and visibility as compared to any part of the country. There have been very less number of cases reported of dowry death or of any kind of exploitation of women. The picture of equity has been prevalent in the society, infact this region has no element of social marginalization despite having small tribal groups. It would not be going overboard by saying that it is one of the few places in India which can claim to be on the path of an Egalitarian society.

The problem only comes into picture when the people migrate to the mainland due to a number of pull and push factors. The North East region has been subjected to a number of developmental problems[10]; the terrain makes it almost impossible for any infrastructural growth, there is lack of educational and employment oppurtunities, insurgency has made life a living nightmare for the locals and the most important part- there is a two-way deficit of understanding between the mainland and the North East Region[11], which is the sole reason for the discrimination faced by the north eastern women when they migrate to ‘Indian’ cities.

The mindset of people caters to various prejudices prevalent in the society. Woman has always been treated as an object of gratification, a possession, a property incapable of reason and responsibility. We have all contributed to the sex stereotyping of roles assigned to the women be it in the biological or sociological sense. These stigmas are deeply rooted especially in our society[12]. When North Eastern women are subjected to racial humiliation and exploitation, they are victims of Discrimination within Discrimination[13]. The suffering of a woman soaked in racial exploitation is the curse these women from the North East constantly face.

HOW DOES INDIA TREAT ITS NORTH EAST WOMEN

A recent gang-rape case of a Mizo girl in the country’s capital left everyone in a state of shock and embarrassment. This ofcourse is not the first or last of the incidents of racial discrimination meted out to the women from North East, infact their miserable plight is slowly becoming the bitter hidden truth which was never realised. North East women are the prime example of an ethnic minority who inspite of being in a multi-cultural and multi-ethnic society are the victims of marginalisation and alienation from the mainstream[14].

New Delhi, very infamously known as the ‘Rape Capital’ of India, has one more feather in its hat. Although being the leading city in the country, it also leads in discriminating the so called ‘Chinkis’. There has been a large amount of migration of people from the hills to metros like Delhi (Mumbai, Bangalore and other big cities included) in pursuit of higher education, jobs, better living standards as life back in the hills has never been a simple affair with socio-economic unrest, insurgency, lack of infrastructure[15]. These push-factors are ofcourse a result of the incompetency of the government but this problem can for the meantime wait.

Research study conducted by North East Support Centre and Helpline[16] (NESCH) reveals that seventy eight out of every hundred North East people face racial discrimination, sexual attacks against women, human trafficking and violence in Delhi[17]. India has heard of caste discrimination but the racist attacks belong to the newer generation. The root cause of such discrimination is nothing but ‘Social/Racial Profiling’[18]. North East women’s colour, facial features are very different from the people in other states (thanks to their Mongoloid origin) and they become objects to frown upon. Inspite of there being a lot of initiatives and legal intervention to curb racial discrimination, it has percolated through the society. The challenges faced by the North East women like sexual assault, racial/social profiling has been due to various causes.

Time and again such discrimination has been alleged to have been a consequence of the ‘open’ culture of the North Eastern communities, this leads to believing that women from North East due to their looks, their dressing sense, their attitude are ‘easy’[19]. This makes the girls very vulnerable in the eyes of perpetrators. This is a very psychological approach where once the opinion is formed upon ones appearances, culture and levelling the community as being inferior, now once the social profile of a community is formed ones social, economic or professional status does not matter at all and the community becomes the victim of discrimination.

Social profiling is a reflection of the caste system

The cultural difference between the North Eastern Region and the Indian mainland is not a secret; both have to be equally blamed for the failure to integrate. Women from the North East women come from a free culture where they do enjoy equal oppurtunities which is different from the mainline socio-cultural setup thus they are considered as outsiders ‘polluting’ the existing mainland culture.

The North Eastern women coming from the Mongoloid stocks do not fall within the four caste hierarchies, and as Indian society always looks upon them from the caste perspective[20], they are considered as outcaste. Being a woman has always been hard in a male dominated society, thus the North Eastern women who are never considered a part of the larger society, subjected to racial and sexual discrimination, this is nothing but a reflection of the deep-rooted caste system[21].

Challenges of Human Trafficking

Human Trafficking has been recognised as the largest organised crime worldwide, this epidemic has strong foothold even in the Indian context. Most often than not, the victims of such gross human violations have been women and children from socio-economically background. The life and challenges of social/racial profiling has manifested to a different level altogether by young North Eastern women being the new found targets[22]. Due to the unrest in the North Eastern Region, the young women who are discriminated in the society have become the victims to the false promises of the traffickers[23]. Tackling such human rights violation will be a much more daunting task in addition to racial discrimination and sexual exploitation.

Police Inactiveness

The police accountability is especially low in cases of racial discrimination; problem starts with not registering the incident itself, in case where incidents are registered the inactiveness of police to take affirmative action adds to the vulnerability of the North Eastern Women. The women are double wounded, first to deal with the humiliation, and to add to ones miseries the police intentionally ignores, denies or delays the registration of complaint. According to a report of the NGO, North East Support Centre and Helpline, almost 64% of the cases are not registered in the first place and out the ones where a FIR is filed only in 11% of the cases action was taken by the police to arrest the culprits[24].

Instead of tackling the situation with the powers conferred upon them, Delhi Police recently released a booklet, ‘Tips of Dos and Dont’s for north east communities in Delhi[25]” which basically is asking the citizens of the country to behave differently in their own country!

RESPONSE TO RACIAL DISCRIMINATION

It is a well established fact that in our country racial discrimination is a pure reflection of Indian caste system[26]. Racism generates particular mistrust and alienation; within societies like ours where there are other evils, it becomes particularly difficult to react to discrimination as the effect is evident but the cause is hard to prove. The state can provide the society with a number of public education programmes, can notify sophisticated legislations but the problem can never be solved unless the perception, the mindset of a common man is addressed. Rules do exist but we might probably respect the letter of the law but never its intention. Too often, anti-discrimination legislations lack enforcement, when enforced the value of racial equality are not internalised. As a result of this cycle people do not mobilise in their defence

North Eastern women becoming soft targets is part of the larger challenges faced by the Indian society today. The discrimination to these women is a violation of their constitutional rights which needs to be addressed before it becomes too late. The solution to the crisis that we are faced with is not with any special legislation or law enforcement mechanism. There are infact a number of declarations, conferences and laws banning racism but the problem is the pervasive disrespect; the problem is social and not legal.

ARE WE OVER-REACTING

It is a debateable issue as to whether the discrimination is towards women in general or the north eastern women in particular. As we have established the problem of the discrimination is rooted in the mental element of people in the mainland face. There has always been the two-way deficit of understanding between the mainland and the north eastern region. By publishing the booklet which asks the North Eastern women to behave accordingly, the Delhi police has actually brought into the aspect of infringement of Right to freedom. The culture of the North Eastern people is questioned; the women are blamed because of their dressing sense for the exploitation that they suffer from. The feeling of colonial internalisation and alienation is well set within every North Eastern. Their behaviour also in cases adds to the problem. They at times do not mingle well with the society as such, they prefer to restrict their social lives well within their people but one cannot blame them for such indifferent behaviour as such isolation is way better than being victims of racist comments, violence and sexual exploitation

Now giving an analogy of another minority, the Parsees; they as a community were far more westernised, their culture was way different from that of the mainland. They were known for maintaining distance with the society, married within their own community. Yet the women from this community were treated no differently. Was it because the Parsees belonged to a community which was economically better off or because they adopted Gujarati ( a mainland language) as their mother tongue or because they could merge with the mainstream Indian look; and why then are the North Eastern women the target of racism, they infact are from India( as opposed to Parsees being from Iran). Why then is the culture of North Eastern women a cause for their discrimination? There are and sometime always will remain some unanswered questions.

This discrimination is because there is still a large group of people in India who are ignorant enough to say that how can so many ethnic minorities exist in one country. The North Eastern States were never part of our country until post independence, their history and development are virtually unattached to the rest of India[27]. It is just a matter of education, of bringing the problem to awareness and attention that is most instrumental in propelling social changes for the better.

DISCRIMINATION THAT MUST BE CAST AWAY

In the problem of racism, the losers are frequently members of ethnic groups whose vulnerability results from a history of oppression, discrimination and exploitation. Racism has impoverished the North Eastern women to such a level that they are deprived in terms of their capabilities. Every single North Eastern woman has been socially deprived of a free society in her own country. Such poverty and social disadvantage are the evidence to confirm and sometimes justify the racial prejudices and discriminatory practices of the ‘dominant group’[28].  Let us go into the depth of the crisis that we are faced here with.

The construction of the ‘self’ and the ‘other’ is borrowed from vague notions of race and ethnicity; it determines the culture of the dominant group as being the ‘self’, where deviance is treated as inappropriate, the deviant thus subjected to various kinds of exploitation[29]. This situation gives rise to new vectors of inequality, such settings of a society where the ‘other’ is relegated to social peripheries misperceptions are bound to grow.

Ethnicity itself is a discourse of Domination, the distinction between nation and ethnicity being tenuous. Any form of ethnic mobilisation is often the reaction to the imposition of a dominant culture or discriminatory treatment[30]. Let us for once assume that cultural differences are not problematic per se, and then the main factor which needs to be considered is how it interacts or intersects with power dynamics. The crisis we are dealing with is a classic example of Domination within domination[31]. The women are victims of subjugation by the male dominated society, exploitation being the members of a ethnic minority and are also at the receiving end of the stereotyping.

The universilisation of a dominant group’s culture becomes the norm and everything else is rubbished or is defined as being infeiror. The discrimination against North Eastern women occurs through subtle mechanisms; referring to them as ‘Chinkis’, passing lewd comments, restraint on entering social places[32]; in such cases racism is often difficult to detect, it is also difficult to ascertain in courts that the discrimination occurs, this is also compounded by the fact that in many cases there is a lack of reliable information and racial data which makes it nearly impossible to determine whether racial discrimination exists or not.

The North Eastern woman besides looking different has many other factors which mark her as being a deviant. The perceived morals of the ‘other’ as being fast or loose and the stigma attached with such perceptions triggers racist attacks, misunderstood by people as an indication of the ‘poor character’ of these women. Feminine modesty is one thing our country’s culture does not compromise upon, it also brings along itself a social distance from men[33]. When such boundaries are crossed one becomes a victim of severe social scrutiny. Thus the North Eastern woman is seen as being the most vulnerable, unprotected targets for the inhuman forms of exploitation. The problem of exploitation of women due to racial difference is social and not just biological[34]. Human Decency is what determines the fairness towards ‘other’ social groups and this decency is what a culturally conditioned attitude of mind is. Whatever differences may exist between people, however concrete these differences may be, the willingness to understand those differences and to act upon them sympathetically ought to increase; it is not something a legal intervention can provide for.

Since “race” prejudice rests on false premises, it is somehow always rationalized. People subjecting the North Eastern women to racial exploitation in various forms justify their behaviour by blaming these women for their vulnerability. The semi-awareness of the real nature of the problem, the rationalization is never regarded as the expression of prejudice but as an explanation of the discriminatory behaviour. The irony of ironies being that few of such rationalisers are aware that their reasons are simply devices for concealing their antipathies.

The very injustice of such cultural domination and prejudice is the ‘identity crisis’ which the North Eastern women face. They are faced with the dilemma of either identifying themselves, interpreting their social life in the light of experience, attitude and behaviour of the dominant group so as to be accepted or to be identified as belonging to the ‘other’ or inferior group and thus being subjected to gross human rights violations. The need of the hour is to recognize that such discrimination is the problem. In our country for any problem to be redressed, the problem needs to be named, only then can it be tackled; recognizing the identity of North Eastern women and providing them with equal oppurtunities so as to achieve what all the societies of the world have been aiming for, acceleration of de facto equality.

 BIBLIOGRAPHY

 

BOOKS REFERRED TO:

  • Ernest Cashmore and James Jennings, Racism: Essential Readings, Sage Publications, New Dehli 2001.
  • T.K Oomen, Reconciling Competing Identities, Cambridge, Polity Press 1997
  • T.B Subba and G.C Ghosh, The Anthropology of North East India: A Text Book, Orient Longman, New Delhi 2003
  • B.Datta Ray, North East India 2000 AD: Perspective for Futurology, Deep & Deep Publications, New Delhi  1987
  • Susan Bayly, Caste and Race in the Colonial Ethnography of India: The Concept of Race In South Asia, Oxford University Press, New Delhi, 1997
  • Ronald Inden, Imagining India, Oxford: Basil Blackwell, 1990
  • Thorat and Umakant, Caste, Race and Discrimination: Discourses in International Context, Rawat Publications, Jaipur and New Delhi, 2004
  • T. Raatan, History, religion and culture of North East India, Isha Books New Delhi, 2006
  • Colin Blakemore and Susan Iverson, Gender and Society (the Herbert Spencer Lectures),Oxford, 2000
  • Stephane May, Tariq Modood and Judith Squires, Ethnicity, Nationalism and Minority Rights, Cambridge 2004
  • Jayanta Sarkar, “Testimony of Cultural Interactions of the People of North-East India”  Society, Politics and Development in North East India, edited by Ashok Kumar Ray and Satyabrata Chakraborty, Concept Publishing Company, New Delhi, 2008.

 

REPORTS:

  • “Freedom To Be” , National seminar and public consultation on Racism, Racial Discrimination, Xenophobia and Related Intolerance, Report by National Human Rights Commission.
  • “Integration of the Human Rights of Women and the Gender Perspective,” a report by the Special Rapporteur on Violence Against Women, its causes and consequences, Radhika Coomaraswamy  in collaboration with the United Nations Economic and Social  Council.
  • “Briefing: North East Migration and Challenges in National Capital Cities”, the Pilot Research Project was undertaken by a team led by Madhu Chandra, Spokesperson-NE helpline.
  • Misty Button, “Combating Human Trafficking in India: How the UN can serve as a Catalyst for Change”, Seminar in Economics, 2007.

 

  • Savita Bhakhry, “Human Rights and Trafficking in Persons,” Combat Law (2006)

ELECTRONIC SOURCES

 

·         Hueiyen Lanpao. “Social Profiling: Root cause to racial discrimination faced by North Easterners. http://www.hueiyenlanpao.com/news.php?newsid=3544 (accessed 5th March 2011).


[1]. Article 1(1), International Convention on the Elimination of All Forms of Racial Discrimination; Adopted and opened for signature and ratification by General Assembly resolution 2106 (XX) of 21 December 1965; entered into force 4 January 1969.

[2]. These elements do not address many other predominant elements of Racism. It is the basic consequence of an analysis of the problem of Racism seen in a multicultural backdrop; De Fleur and Westie, “The Interpretation of Interracial Situations,” Social Forces (1941).

[3].Indo-Aryans and Dravidians were the two major linguistic groups. The other minor communities came from the Austro-Asiatic and Tibeto-Burman linguistic families. Most of the Tibeto-Burman inhabitants form part of the North East. ‘Seven Sisters’ the name given to the states of this region is symbolic of their isolation from the mainland culture and consciousness. The region is connected to ‘India’ by the Siliguri Corridor (Chicken’s Neck)

[4]. Jayanta Sarkar, “Testimony of Cultural Interactions of the People of North-East India”  Society, Politics and Development in North East India, edited by Ashok Kumar Ray and Satyabrata Chakraborty, Concept Publishing Company, New Delhi, 2008.

[5]. World has been a witness to discrimination against minorities, indigenous people, such segregation and conflicts give rise to violence, xenophobia against minoritites; Dr. Ranbir Singh, “Racial Discrimination and Justice”, Freedom To Be, Report by National Human Rights Commission, 2001.

[6]. Ravivarma Kumar, “Caste, Race and Constitution” Freedom To Be, National seminar and public consultation on Racism, Racial Discrimination, Xenophobia and Related Intolerance, Report by National Human Rights Commission, 2001

[7].T.K Oomen, “Citizenship, Nationality and Ethnicity” Reconciling Competing Identities, Cambridge, Polity Press, 1997

[8]. The General Assembly dedicated three decades (between 1973 to 2003) to ensure support for people struggling with racial equality; World Conference to combat Racism (WCAR)  in 1973,1983, 2001 and 2009; World Conference on Human Rights in 1993, 1994, 1995. There have been numerous legal instruments, conferences which have tried to address the issue of racial discrimination but in vain; P.N Bhagwati, “Racial Discrimination as a Grave Violation of Human Rights” Caste, Race and Discrimination (Discourses in International Context) 2004, pg. 203-204.

[9]. i) Submission of periodic reports by the member states to CERD, ii) procedure concerning complaints against one state to another and the last iii) complaints by groups claiming to be victims of racial discrimination.

 

[10]. T.B Subba and G.C Ghosh, The Anthropology of North East India: A Text Book (New Delhi 2003) pg. 375.

[11]. Sushil Khanna, “Look East, Look South: Backward Border Regions in India and China”, Indian Institute of Management, Kolkata; Indian government set up the Shukla Commission (1997) to look into the problems faced by the North Eastern Region, it identified four main deficits; a) lack of infrastructure, b) lack of maximization of resources, c) insurgence and the most important one for our discussion d) the two way deficit in understanding between the mainland and the North East.

[12]. Women across the Globe have been subjected gross human rights violation; domestic violence, sexual exploitation, racial discrimination; ‘Integration of the Human Rights of Women and the Gender Perspective,” a report by the Special Rapporteur on Violence Against Women, its causes and consequences, Radhika Coomaraswamy  in collaboration with the United Nations Economic and Social  Council.

[13]. Devaki Jain, “A View of Racism, Racial Discrimination, Xenophobia and Related Intolerance through the Gender, Freedom To Be, Report of National Human Rights Commission, 2001

[14]. The Times of India, “Girls from NE Soft Target,” http://timesofindia.indiatimes.com/city/delhi/Girls-fromNE-soft-target-in-city/articleshow/5166105.cms (accessed 3rd April 2011)

[15]. G.K Dutt and Nag, “Development of Infrastructure for Science and Technological Input in North-Eastern India”, North East India 2000 AD Perspective for Futurology, Deep & Deep Publications, New Delhi

[16]. Delhi based NGO, an initiative of All India Christian Council and Operation Mercy Foundation to end Racism Discrimination, sexual violence and human trafficking, has been whistle blowing the problem of discrimination against North Eastern people in India through advocacy, articles, reports; “Briefing: North East Migration and Challenges in National Capital Cities”, the Pilot Research Project was undertaken by a team led by Madhu Chandra, Spokesperson-NE helpline.

[17].Christianity Today, “85% of North-East Indians Face Racial Discrimination in Capital,”

http://in.christiantoday.com/articles/86-of-northeast-indians-face-racial-discrimination-in-capital/4202.htm

(Accessed 3rd April 2011)

[18]. Racial Profiling is the practice of targeting individuals for police or security interdiction, detention or other treatment primarily based on ones race and ethnicity, in the belief that such minority groups engage in unlawful activities; ‘Racial profiling: issues, data, and analyses’  By Steven J. Muffler; Hueiyen Lanpao. “Social Profiling: Root cause to racial discrimination faced by North Easterners. http://www.hueiyenlanpao.com/news.php?newsid=3544 (accessed 5th March 2011).

 

[20]. Susan Bayly, “Caste and Race in the Colonial Ethnography of India, in Peter Race(ed.), The Concept of Race In South Asia ,Oxford University Press, New Delhi, 1997 ; Ronald Inden, Imagining India, Oxford, Basil Blackwell, 1990.

[21]. This perspective can be debated; if discrimination against caste can be defined as a form of racial discrimination, there is no reason why discrimination against minorities (linguistic or ethnic) cannot be phrased in exactly the same terms,- a counter argument for the same can be in terms of the UN initiative by treating race distinction as a reflection of the Indian caste system, the UN is dismissing the established scientific opinion; Andre Beteille, “Race and Caste” Caste, Race and Discrimination (Discourses in International and National Context), Rawat Publications, Jaipur and New Delhi, 2004, pg 48-49;

[22]. Multiple reports point to India as a “source, destination, and transit country.”  The huge population and location seem to be contributing factors to this statement.  It is less liking that someone would be caught trafficking among the population.  The number of borders India shares with its neighbours adds to the problem.  China, Nepal, Bangladesh, and Pakistan all have been identified as countries with a significant amount of human trafficking; Misty Button, “Combating Human Trafficking in India: How the UN can serve as a Catalyst for Change”, Seminar in Economics, 2007.

[23]. Savita Bhakhry, “Human Rights and Trafficking in Persons,” Combat Law (2006), pg-44.

[24]. The Aims and objectives of North East Support Centre and Helplines include providing proactive assistance to the North East India communities studying, working and living in Delhi and NCR; “Briefing, A Research Report, North East Migration and Challenges in National Capital Cities; Bedi, Kiran. “The Big Fight: Making Cities Safe for Women.” (Lecture Notes, NDTV, New Delhi. December, 2011; Dhaliwal, HGS. “Moqubala: Is Delhi Safe for Women.” (Lecture Notes. NDTV, New Delhi, December, 2010.

[25]. In July 2007, a booklet was published by the west district of Delhi police where they asked north-eastern women not to wear “revealing” dresses and “avoid lonely road /bylane when dressed scantily, to dress according to sensitivity of the local populace, a classic evidence of cultural imperialism.

[26]. D.L Sheth, “Caste in the Mirror of Race”  Caste, Race and Discrimination (Discourses in International and National Context), (New Delhi, 2004) pg. 85-88

[27]. T.Raatan, “Cultural Plurality and Identity Crisis; Role of British Rule in Ethnic Conflicts; Growth of Separatist Movement”, History, religion and culture of North East India, (New Delhi, 2006) pg 5-6;21

[28]. Pierre L. van den Berghe, “Race and ethnicity: A Socio-biological perspective”, Racism :Essential Readings edited by Ellis Cashmore and James Jennings (New Delhi, 2001) pg 124-125

[29]. Ackerman and Jahoda, “Towards a Dynamic Interpretation of Anti-Semitic Attitudes,” American Journal of Orthopsychiatry, XVIII (1949), PG 168; Iris Marion Young, “Two Concepts of self-determination” Ethnicity, Nationalism and Minority Rights ( Cambridge, 2004) pg 177-178.

[30]. F. Barth, “Ethnic Groups and Boundaries: the Social Organisation of Cultural Differences”  Racism Essential Readings, pg 320-324;

[31]. Louis L. Synder, “The Idea of Racialism :Its Meaning and History”, Racism Essential Readings (New Delhi, 2001) pg. 94-96

[32]. Urban Pind, a high end lounge in South Delhi was issued a legal notice against the prohibition of entry of a North Eastern woman; reason given by the Manager for the restraint was that the women did not have the correct profile. Infact, her German and south Indian friend were allowed in the lounge.

[33]. Lucia Jacobs, “Sexual Differentiation and Cognitive Function” Gender and Society (the Herbert Spencer Lectures) (Oxford, 2000) pg.57-59.

[34]. This has to be interpreted to mean that race in the biological sense in a society has no existence. Much more is meant here in so far as social action is concerned, the biological facts about population differences do not constitute the social problem of “race”. It is the social attitude towards “race” that constitutes the problem; Ashley Montagu, “The Fallacy of Race”, Racism Essential Readings, pg 106-107;

Human Rights Education in India

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


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

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

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

Protection of Trade secret and Confidential Information : India Perspective

INTRODUCTION

In today’s globalised economy, the organization are protecting its intellectual property by adopting the available measures in form of patents,copyright,trademark etc. but besides these popular IP rights there are other IP rights not so popular but which are recently drawing attentions all over the world- Confidential Information and Trade Secret.

Confidential information and trade secrets are protected under the common law and there are no statutes that specifically govern the protection of the same. In order to protect trade secrets and confidential information, watertight agreements should be agreed upon, and they should be supported by sound policies and procedures. Protection of Confidential Information in the Hands of Employees In this information age, it’s imperative that a business protects its new formula, product, technology, customer lists, or future business plans. In the global marketplace, Indian corporations are often required to comply with foreign laws and are likely to be exposed to liabilities for violation of confidential information or trade secrets of their business partners or third parties. For example, the U.S. Economic Espionage Act, 1996 imposes criminal liability (including fines and prison sentences) on any person who intentionally or knowingly steals a trade secret, knowingly receives, or purchases a wrongfully obtained trade secret. The standards for protection have to be tailored to address the risks associated with rapid advancement in technology and communications. The standards accepted today may become inadequate tomorrow. However, one constant factor is the presence of a corporate culture imbued with information protection values. The employees of an organization are privy to confidential information and trade secrets on a daily basis. In the absence of any specific Indian statute conferring protection on such information in the hands of employees, recourse has to be taken to common law rights and contractual obligations.

MEANING OF TRADE SECRET AND CONFIDENTIAL INFORMATION

There is no legislation in India defining term trade secret and confidential information. However the concept has been discussed widely around the world and we can sum up under these headings.

What is trade secret?

A trade secret refers to data or information relating to the business which is not generally known to the public and which the owner reasonably attempts to keep secret and confidential. Trade secrets generally give the business a competitive edge over their rivals. Almost any type of data, processes or information can be referred to as trade secrets so long as it is intended to be and kept a secret, and involves an economic interest of the owner. For example, a business may have certain internal business processes that it follows for its day-to-day operations that give it an edge over its competitors. This could be regarded as a trade secret. 

The Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS) under the auspices of the World Trade Organization lays down the following three criteria for regarding any information as undisclosed information (or trade secrets):

• It must not be generally known or readily accessible by people who normally deal with such type of information

• It must have commercial value as a secret

• The lawful owner must take reasonable steps to keep it secret.

North American Free Trade Agreement (NAFTA) defines a trade secret as “information having commercial value, which is not in the public domain, and for which reasonable steps have been taken to maintain its secrecy.”

The Uniform Trades Secrets Act, 1970 also provides for the definition of trade secrets, which is as follows:-

“Information, including a formula, pattern, compilation, program device, method, technique, or process, that: (i) derives independent economic value, actual or potential, from no being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy”

Section 2(3) of Indian Innovation Bill defines Confidential Information as “Confidential Information means information, including a formula, pattern, compilation, program device, method, technique or process, that: (a) is secret, in that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within circles that normally deal with the kind of information in question; (b) has commercial value because it is secret and (c) has been subject to responsible steps under the circumstances by the person lawfully in control of the information, to keep is secret.

However, the definition in the Innovation Bill also appears to be based (more than the US model law) on Article 39.2 of the TRIPs agreement.

Significance of Trade Secrets

Trade secrets in the industrial economy have increased greatly in the past few years, for a number of reasons. There are mainly two reasons for that, one among them is that other forms of intellectual property like Patent, Trademark and Copyright have an element of uncertainty as compared to Trade Secret. Secondly, trade secrets have gained importance because, in many fields, the technology is changing so rapidly that it has surpassed the existing laws intended to encourage and protect inventions and innovations.

Another significant factor which has enhanced the value of trade secrets is the relative ease of creating and controlling trade secret rights. There are no bureaucratic delays and no multiyear waits for government grants, such as those for patents. Trade secret rights, in contrast, can be established by the explicit conduct or agreement of the interested parties. A trade secret right starts upon the creation of the idea in some concrete form, and continues as long as secrecy is maintained. Protection of information such as ideas or information which does not qualify to be protected as intellectual property within the legal framework Intellectual Property Laws of the land can be protected by Trade Secrets. They also have the advantage of being lasting forever, again, as long as secrecy is maintained.

Of course, trade secrets have negative aspects. They are a volatile form of property, and they terminate when secrecy is lost. Also, they require constant vigilance to protect them. Nevertheless, trade secrets play a major role in protecting innovations and establishing rights to use new technology. It is thus important for the intellectual property practitioner to be alert to the intricacies of this large body of trade secret law.

Confidential Information vs Trade secret

A Trade Secret is some information or “secret” that is important to the business and is not known to the public. It is a term commonly used to cover information that has commercial value. The law on “trade secrets” is really about the protection of Confidential Information. Though there is no clear distinction between the both. At times both the concepts are so intermingled and overlapped that it’s become difficult to draw line. The terms “trade secrets” and “confidential information” have been used somewhat interchangeably by the courts. “Trade secrets” generally refers to information relating to more technical matters such as secret processes or formulas; and “confidential information” relates to non-technical matters such as business plans or pricing information. Although many concepts and ideas may be public knowledge, courts have upheld confidential/trade secret information protection for (i) specific ways to implement ideas and, (ii) combinations of known concepts and ideas. Novelty and invention are not required.

Though case law does not always define clearly whether trade secrets are synonymous with confidential information or proprietary information. Nevertheless, the case law does suggest that trade secrets and confidential information are essentially identical concepts.”

POSITION IN INDIA

The intellectual property laws in India have had an almost docile and stagnant existence ever since they were framed. Being a signatory of the TRIPs Agreement India is under an obligation to bring its intellectual property laws in conformity with international standards. India has achieved this to a large extent by enacting new and amending existing legislations on intellectual property laws. However, unlike the US and other developed countries India has no legislation dealing with trade secrets.

In India protection of trade secrets is Common Law based. However, section 27 of the Indian Contract Act provides some sort of limited remedy, it bars any person from disclosing any information which he acquires as a result of a contract. There are scores of reasons for the absence of any statute dealing with trade secrets. India has since its independence followed a socialist pattern because of which the Indian legal system has always strived for social benefit and public rights as a result of which private rights like intellectual property rights have not been given any importance. Another reason for absence of any trade secret laws is the dependence of Indian economy on agriculture. Also, with the absence of big private corporate houses in India until recently there has hardly been any pressure on the government for granting statutory protection to trade secrets. Protection of trade secrets is a very important and one of the most challenging tasks for the Indian government as this will enhance the foreign investment in India giving a boost to the Indian economy. Foreign investors have to be assured of the protection of their trade secrets, so that they can do business with our country. A proper policy for trade secret protection will further enhance the security in our own industry. Almost all the countries in the world have a policy for the protection of trade secrets and India also being a signatory to the TRIPS is under an obligation to amend its laws or create a new law in order to safeguard the trade secrets of various businesses. So a proper policy for the protection of trade secrets in India is the need of the hour in order to provide a sense of security among the foreign investors and the local businessmen regarding their trade secrets which will further boost the Indian economy.

As mentioned above, in India, no substantive authoritative text or case laws are available to determine the nature or ambit of trade secrets. But the Indian courts have tried putting the trade secrets of various businesses under the purview of various other legislations in order to protect them and also they have tried to define what a trade secret is in various cases, Trade Secret law has gained importance in India only recently with the intensification of competition. Coca cola’s formula has been protected for over a century under Trade Secret law.

PROTECTION OF CONFIDENTIAL INFORMATION/TRADE SECRET IN THE HAND OF EMPLOYEES

As businesses are growing out of their parochial moulds and going global, effective trade secret protection is becoming a necessity. Though there is no enactment in India that affords protection to trade secret, businesses can use the tools mentioned below to safeguard these trade secrets:

Non-disclosure Agreements:

Sound and concise company policies and non-disclosure agreements with the employees protecting confidential information and trade secrets are recommended so as to provide contractual remedy in addition to the one under the common law. Such agreements should define “confidential information” and the exceptions to confidentiality. Agreements should have clauses negating a grant of an implied license, restrictions on disclosure, use and copy; restriction on use of confidential information upon termination of the employment, return of information upon termination and right to withhold salary and emoluments till such return.

Non-compete clauses, depending upon their applicability in the Indian context, read with the confidentiality clauses would afford an organization added protection with respect to its confidential information. Such provisions must have a clear purpose, which is to restrict the use of confidential information and trade secrets obtained during employment and ensure that employees do not compete unfairly. However, non-compete provisions would need to be reasonable, and the Indian courts may treat a tough non-compete provision as unenforceable. In order to ensure that the rights of third parties are not violated, the non-disclosure/employment agreement should clearly impose an obligation on the employee not to integrate into the organization’s data or intellectual property, any confidential information of a third party. Employees should be required to indemnify the organization in case of violation of this clause. If the organization has not executed such agreements at the time of employment, subsequently executed agreements should expressly cover the confidential information obtained by the employee from the date of his employment.

Internal Processes:

Strong internal controls and processes to protect confidential information should be in place. Employees should be educated to identify information that is confidential or in the nature of a trade secret, to enable them to make an informed decision. They should have a clear understanding of their responsibilities to protect confidential matter and treat this as an on-going process that is integral to their work. Data that is confidential should be clearly indicated as such in all communications. Appropriate security procedures must be established and followed by the company and access to specific sensitive areas of workplace restricted or limited to certain senior employees only. Third-party interaction and disclosures should be channeled only through specified personnel. Wherever feasible, confidential information should only be shared with those employees who have a legitimate need to know such information, thus enabling the employees to perform the assigned tasks.

An Exit-Interview:

During such an interview, an employee should be reminded of his obligations with respect to the company’s confidential information and trade secrets and should be asked to sign a document reaffirming his obligations. If an employment agreement was signed, the document to be signed upon termination should be attached. A copy of the signed exit-interview form, including the employment agreement, must be given to the employee. Such an interview not only serves as a meaningful reminder but can also be valuable evidence of employee’s knowledge of such obligations. Success of suits for protection of confidential information and trade secrets depends upon production of satisfactory evidence to prove confidentiality of the information, act of disclosure and the damages caused thereby, as well as the reasonability of such restriction.

TRADE SECRET vis-à-vis OTHER INTELLECTUAL PROPERTY RIGHT

Trade secret protection presents no conflict with the patent law, as it is consistent with the patent policy of encouraging inventions. However, for trade secret protection, uniqueness in the patent law sense is not required. Further, the owner of a trade secret, unlike the holder of a patent, does not have an absolute monopoly on the information or data that comprises the trade secret. Other companies and individuals have the right to discover the elements of a trade secret through their own research and hard work.15 Consequently, inventors of items that may meet the standards of patentability would prefer to seek patent protection because such protection is far superior to the protection afforded by trade secret laws.

As far as copyright protection is concerned, there is no copyright in ideas and hence copyright law cannot protect confidential information. Section 16 of the Copyright Act, 1957 (“the Copyright Act”) states that nothing in the Copyright Act should be considered as restraining an action for breach of confidence or breach of trust. There is thus no copyright pre-emption of trade secret misappropriation claims.

Confidential information

Initially, an objective test dependent on the expectations of reasonable men was adopted. A subjective element was introduced by the decision in Thomas Marshall (Exports) Ltd. v. Guinle where the plaintiff sought an injunction against the Managing Director who had set up a competing business. The Court observed that information became confidential only when the owner of the information has a reasonable belief that its release would be harmful to him and that it was outside the public domain. This implies that the belief of the owner of the information must be taken into account while determining whether information is confidential.

These decisions were reviewed by the House of Lords in the famous Spycatcher case. A British spy published a book containing confidential information he had learnt during his career. Although the British Government sought an injunction, the action failed on the ground that the information had lost its confidential character, as this book was available in other countries. Hence, information must remain outside the public domain if it is to be protected.

However, the Court did not decide whether the above reasoning tantamount to allowing the holder of confidential information to rid himself of the obligation of confidence by disclosure. Lord Goff explained the “springboard principle” and held that disclosure by a third party does not release the confidant from his obligations. This reluctance shown by the courts to allow a confidant to benefit by breaching his confidence prevents an unequivocal declaration that information, which is confidential, cannot be public. Nonetheless, where the holder of the information himself discloses the information, no action for breach of confidence will lie. A lapse of time may also result in breach of confidentiality.32

The obligation of confidence

The obligation of confidence does not arise where the information is divulged in public or in other circumstances that negate the duty of holding it confidential. This test, which is an objective one, focuses on the relationship between the parties. The types of relationships in which such an obligation is said to arise can be divided into three broad categories:

1. Fiduciary relationships

The essence of a fiduciary relationship is that equity imposes an obligation on the trustee to act in the best interest of the beneficiary. For instance, directors may owe an obligation to their company, professionals such as auditors and solicitors may owe a duty to their clients and so on.

2. Contractual relationships

Parties to the contract are free to make such provision as they deem fit for the use of confidential information. It is common to stipulate that information would not be passed beyond the contract.

1. Employee-employer relationship

The basic duty of fidelity arises throughout the course of employment and continues to a limited extent even after the employment terminates. Thus, any employee who discloses confidential information is in breach of confidence.

The major drawbacks associated with an action for breach of confidence are that an adequate remedy is unavailable against the person to whom the information is disclosed, as the holder of the secret may be unable to prevent the continuing use of the confidential information by such person(s). Although damages may be sought against the confidants, they generally do not have the economic capacity to pay adequate damages. The question of liability of third parties assumes importance in this connection.

Misappropriation of trade secrets: liability of third parties

American courts have developed the tort of misappropriation, which imposes liability on third parties for the use of trade secrets. This tort is not committed by a person who uses or publishes a trade secret unless that person has used some unlawful means or breached some duty created by contract or implied by law resulting from some employment or similar relationship.37 It is the use of improper means to procure the trade secret, rather than the mere copying or use, which is the basis of liability.

UTSA contains definitions of “misappropriation” and “improper means”. The American Restatement of Laws has modernized the definition of “improper means” to include “the unauthorized interception of communications”. This implies that even computer hacking is included in the definition of improper means. The Restatement is clear that “improper means” that are “either wrongful in themselves or wrongful under the circumstances of the case” come within the tort of misappropriation.

Though English courts have not framed the issue in terms of “improper means”, the rationale for imposing liability on third parties seems to be the same in both English and American law. Courts have held that even if there is no contractual nexus between the parties, liability arises if the confidentiality of the information is obvious. It must be emphasised that third parties are liable only when the information is not only known, but also known to be confidential in character.

The Law Commission has recommended that the duty should be broader and prevent, for example, a company that has received information in confidence during the course of licensing negotiations from turning that information to its own use, though without disclosing it further.45 Thus, there is a need for reforming the law in this regard.

In India, the tort of misappropriation has not gained judicial recognition. However, Indian courts can adopt the common law approach and grant relief.

CONCLUSION:

The Innovation Bill of 2008 is considered to be a dynamic approach towards protection of Trade secret but it has been argued invariably and needs to be emphasized.

To conclude, Enactment of a strong statute for protection of confidential information and trade secrets would certainly help the Indian industry. In any event, strategies for protection of the organization’s confidential information and trade secrets have, in today’s economic scenario, become a prerequisite to the organization’s survival. Although realizing the need of legislation for the protection of trade secrets, the Indian legislature came up with a bill named

as “The Personal Data Protection Bill” which was introduced in Rajya Sabha on 8th December, 2006, but unfortunately the bill has not been passed till now and is pending the approval of the Indian Parliament before it can become an act.

CONTINUING PROFESSIONAL LEGAL EDUCATION IN INDIA

By: Prerna Chopra

I. INTRODUCTION

“I don’t feel stupid, just inadequate. After three years of studying the law, I’m very much aware of how little I know.”

– John Grisham (The Rainmaker)

In the legal profession in India, professional development has traditionally been considered as a one-time affair, occurring at the stage of pre-service education. Increasingly, changing professional needs have compelled some kind of reflection on the need for in-service or on-the-job professional development.

Law being a dynamic field it is imperative for the working professionals to stay abreast of the latest developments which have a direct nexus with the subject. The developments affect the bar and bench equally not to mention the litigants. Hence to serve the greater cause of justice, continuing professional legal education is a sine qua non.

II. WHY DOES ONE NEED TO CONTINUE LEGAL EDUCATION?

“The impetus for the changes is the sense that what has been taught and how it has been taught may be “embarrassingly disconnected from what anybody does,”

– Ms. Kagan, The New York Times

Continuing Legal Education ensures that legal and judicial reforms contribute to changing the attitudes and behaviors of lawyers and citizens. For this reason, Continuing Legal Education should be an integral part of legal and judicial reform strategies that are anchored on the rule of law and reflect a country’s societal values. Legal education strengthens professionalism, builds public confidence, and facilitates consensus and momentum for further reforms. Continuing Legal Education also improves the performance of legal professionals, enhances service quality and stimulates public respect.

The legal service rendered and the courts and the agencies before which we appear deserve a maximum level of competence, which we believe cannot be maintained without regular participation in seminars and other training programs designed to keep the lawyers abreast with developments in his or her chosen field.

Moreover, law is one of the few professions that allows a new admittee to jump right in and start practicing their craft without any required “real-world” training. For example, we would not want a doctor straight out of medical school to take out an appendix without first completing his residency program.

III. HOW TO GO ABOUT IT?

The concept for Continuing Legal Education Programme is as old as the profession itself. Seminars, Conferences, lectures etc are all very regular phenomenon across the country. However, doing the same in a more regularized manner, making it accessible for all and then making it compulsory would go a long way in enhancing the standards and quality of profession.

Activities being contemplated in this regard include full-time certificates, diplomas, accumulation of credit hours of training, and even professional socialization and dialogue in seminars, roundtables and conferences. Online distance learning is the latest development within non-classroom based modes of communication and interaction, and has attracted interest from providers of legal education as well. The training programs should be designed not only to enhance performance but also to instill the values of impartiality, professionalism, competency, efficiency and public service.

(1) Latest developments- Seminar, Conferences, Workshops etc-

“Often people defend the traditional curriculum by saying that we are teaching them to think like a lawyer. . . I say we are teaching them to think like an 1870s lawyer.”

-Dean of Vanderbilt University Law School

The journey of modernization of legal education started under the guidance of the British, but over the years it has failed to impress upon. Although members of the legal fraternity have contributed immensely to the emergence and growth of this nation, the general state of affairs regarding legal education in this country needs a lot of improvement. While other professional courses are surging ahead, this remained rooted in mediocrity. Research and deliberations went on from time to time to improve the system, but still a lot of work needs to be done. Therefore continuing legal education is the need of the hour; legal education should be dynamic rather than static. In order to keep lawyers abreast with the changing law in the society there is a need to organize seminars, conferences and workshops etc both at national and international level on various subjects of law which are still unexplored.

(2) Specialization

“Only by strict specialization can the scientific worker become fully conscious, for once and perhaps never again in his lifetime, that he has achieved something that will endure. A really definitive and good accomplishment is today always a specialized act.”

– Max Weber

Today specialization has become the need of hour irrespective of any profession. Just as many doctors choose specializations outside of family medicine, lawyers also have the option to specialize in different areas of the law. The reasons are for the same as doctors; it can pay both financially and academically, to specialize in a field. For instance, a lawyer may have an active interest in property law or alternatively wants to concentrate on family law in order to gain more familiarity with those sorts of cases and thus make a stronger attorney in court. Also, by specializing in a particular area of law, some lawyers can charge additional fees.

In the present day scenario there is need for the legal professionals to specialize themselves in the particular field of law by enrolling themselves in various short term specialization courses, LLM programmes, distance mode courses etc. which will pay them both academically and financially.

(3) Partnership between colleges and bar/bench:

“Coming together is a beginning. Keeping together is progress. Working together is success”

-Henry Ford

The BCI, state bar councils, state government, UGC and the universities have a greater role to play for improving the standards of continuing professional legal education in the country. They should work in a comprehensive manner without any conflict. They should think seriously to provide the resources both human and financially to all law schools for implementation of the continuing professional legal education. The BCI along with help of academicians and bar should search for improved ways to serve, and always with an eye toward how to better train lawyers and allied professionals to be competent and ethical practitioners.

The 21st century should also consider the globalization and its implementation on legal field at national and international level. The BCI and UGC in the area of computer application and the information technology in the legal field, should explore new avenues and potential use of internet in the practice of law and continuing legal education. They should find out the way and means to meet the new challenges and provide better tools of research and methodology of learning from coming generations.

Further the bar council of India and state bar councils along with universities should start LLM programme on part time basis which should include research methodology, seminars and conferences, practical court training. They should also make sincere endeavor to start with various short term diploma courses in specialized field of law like media law, taxation, etc. which will enhance their knowledge about the subject of their interest in which they wish to practice. The BCI and the universities has to discharge their duties and the responsibilities more religiously and also lay down the standards in terms of class room teaching, practical training and skills, court visits ,moot courts, legal aid work and other practical training programmes for the law students and legal professionals. Further the area of deficiency should be located and corrective measures should be affected with the cooperation of both bar council, which is the governing body and universities, so that the legal fraternity is enriched with the added skill set.

The NLSIU has laid firm foundation in the sphere of Continuing Legal Education programmes. The International Bar Association (IBA) has established an Endowment Chair in this regard. The University has been conducting series of Continuing Legal Education programmes for Lawyers, Judges, Administrators and Law teachers on identified subject areas. Besides, a variety of paralegal and public legal education programmes are part of the teaching and research agenda of NLSIU and the CLE unit.

(4) Training the judges

“Laws and institutions must go hand in hand with the progress of the human mind.”

-Sir Francis Bacon

It is also imperative that continuing Legal Education Centers be set up for keeping abreast the judges particularly in the field of new emerging areas of Law, such as Cyber laws, Intellectual Property matters, matters pertaining to Computer and Internet etc. In these Centers, judges must have an opportunity of interacting with distinguished people from various disciplines so that they can be made aware of ground realities which will help them in effective discharging of their onerous task.

A felicitous initiative in this direction has been taken by setting up the National Judicial Academy in Bhopal which is rightly termed as India’s ‘Think tank on justice’. The National Judicial Academy aims at strengthening the administration of Justice through Judicial Education, Research and Policy Development. It is the constant endeavor of the National Judicial Academy to maximize the scope of learning and to influence judicial behavior for greater efficiency and productivity.

(5) Evening and Weekend Courses

It is suggested that courses must be designed in such a manner that actively practicing lawyers and sitting judges are able to comfortably attend the same. Various one month diploma and certification courses specializing in a particular subject should be conducted during summer vacations which enhance the skill sets of lawyers in their respective subject areas. Also regular short term courses should be started where classes are held only on weekends, keeping the course structure interactive. The assignments if given should be based on practical learning and experiences. A person would become eligible to take this exam after attending a particular number of classes which are spread over a span of time.

IV. TREND IN OTHER COUNTRIES

Continuing Legal Education requirements exist in nearly all developed other countries, such as in United Stated, United Kingdom, Canada, Australia, to name a few. Some jurisdictions such as Israel recommend, without requiring, their attorneys to participate in CLE courses other have made it obligatory.

Continuing Legal Education (“CLE”) is a requirement for attorneys in the United States to maintain their ability to practice law after initial admission to the bar. CLE credit usually have a set class-hour requirement for a period of years, sometimes with specific hour requirements for special topics.

CLE courses are offered throughout the year by state bar associations, national legal organizations, law schools, and many other legal associations and groups such as non-profit CLE providers, as well as other private, for-profit enterprises.

In recent years, many states allow CLE classes to be taken on-line as part of distance education courses or by listening to MP3 downloads, such as www.lawline.com. Often, a portion of CLE requirements may be satisfied through reading and other self-study as well. CLE courses are usually taught by attorneys and cover legal theory as well as practical experiences in legal practice. Classroom materials can be extensive and may represent the most current and advanced thinking available on a particular legal subject. Competency testing is usually not required as part of CLE.

In United Kingdom, the Solicitors Regulation Authority has operated a compulsory Continuing Professional Development (“CPD”) scheme. Solicitors are encouraged to assume responsibility for their own development by choosing from the wide range of activities that can be pursued in order to meet the yearly CPD requirement. Currently, all solicitors and registered European lawyers (RELs) who,

(a) are in legal practice or employment in England and Wales, and

(b) work 32 hours or more per week,

are required to complete a minimum of 16 hours of CPD per year; at least 25 per cent of which must consist of participation in accredited training courses. A solicitor or registered European lawyer must keep a record of such continuing professional development undertaken to comply with these regulations and produce the record to the Law Society on demand.

The continuing legal education in Canada is in the form of CPD (Continuing Professional Development). The CPD in Canada aims at maintenance and enhancement of a lawyer or paralegal’s professional knowledge, skills, attitudes and professionalism throughout the individual’s career. Under CPD lawyers and paralegals must complete in each calendar year at least 12 hours of continuing professional development in eligible educational activities. No less than 3 of the 12 hours must be concentrated on topics related to ethics, professionalism and/or practice management. The Law Society of Upper Canada assumes primary responsibility for delivering the required ethics, professionalism and practice management content subject to the CPD requirement which needs to be met, without charging for program registration or materials.

Participation in courses is accredited based on the following criteria:

• Generally, credit is based on the actual time in attendance at a course.

• Credit is available for participating in “real time” on-line courses, streaming video, web and/or telephone conferences, if there is an opportunity to ask and answer questions.

• Two or more lawyers or paralegals reviewing a previously recorded course together are able to obtain credit.

More over the credit is also available for the following educational activities:

• Participation as a registrant in a college, university or other designated educational institution program, including distance education.

• Teaching (to a maximum of 6 hours per year)

• Acting as an Articling Principal or mentoring or being mentored or supervising a paralegal field placement (to a maximum of 6 hours per year)

• Writing and editing books or articles (to a maximum of 6 hours per year)

• Study groups

• Educational components of bar and law association meetings

The continuing legal education in Australia is in the form of Mandatory Continuing Legal Education (Continuing Professional Development) (MCPL/CPD) scheme provided by the Law Society of New South Wales, Sydney. Under the MPCL the requirement is first practicing certificate and the practicing certificate has an effective start date between 1 July and 31 December, you need to attain 5 units by 31 March. If the effective start date is between 1 January and 31 March there is no need to attain any units by 31 March. Units may be gained through a variety of activities including:

• Attending seminars/conferences/ lectures = 1 unit per hour minus refreshment breaks

• Preparing CLE/CPD lectures = 1 unit per hour – maximum of 5 units

• Presenting CLE/CPD lectures = 1 unit per hour – maximum of 5 units

• Private study of video/audio tapes/DVD = 1 unit per hour – maximum of 5 units

• Publishing/editing articles in law journals = 1 unit per 1000 words – maximum of 5 Units

• On line web based programs = 1 unit per hour

A course of MCLE/CPD must include at least one (1) unit in each of the following fields:

• Ethics and Professional Responsibility

• Practice Management and business skills

• Professional Skills

The Law Society does not have an accreditation process but it provides for “Notes for Course Provider”

Notes for Course Providers

The system of self-assessment underpinning the MCLE/CPD scheme requires individual practitioners to determine the number of units for which he/she will claim credit. The Society suggests that providers use one of the following statements on brochures in preference to making any specific reference to MCLE points or units.

• Version A – long version

Seminars and other CLE/CPD activities are not accredited by the Law Society of New South Wales. Under the MCLE/CPD Rules and Guidelines, if this particular educational activity is relevant to your immediate or long term needs in relation to your professional development and practice of the law, then you should claim one “unit” for each hour of attendance, refreshment breaks not included.

The annual requirement is ten (10) units each year from 1 April to 31 March.

• Version B – short version

If this particular educational activity is relevant to your immediate or long term needs in relation to your professional development and practice of the law, then you should claim one “unit” for each hour of attendance, refreshment breaks not included.

V. RECOMMENDATIONS AND CONCLUDING REMARKS

In the light of the above discussions the following may be suggested which might open new chapters in Continuing Legal Education:-

i. A dedicated umbrella organization should be setup to oversee the Continuing Legal Education programme across the country. In this regard, the newly set up directorate of legal education in India, that will shoulder the responsibility of all things concerning law education, may prepare an action plan on the subject for the next decade.

ii. Make the Continuing Legal Education programme compulsory for all active members of the bar and recommendatory for all members of the Bench.

iii. Under the CLE programme every lawyer must be required to attain certain number of credit points every year. Say 10 points every year or 15 points in 2 years depending upon the consensus formed within the Bar.

iv. CLE Credit Points may be gained attending conferences / workshops / seminars accredited by the Bar Council, by writing articles and other research material and other activities as the Bar Council may recognize.

v. Experienced attorneys may receive credit for speaking or teaching at an accredited CLE program; for moderating or participating in a panel presentation at an accredited CLE activity; for teaching law courses at an Bar Association accredited law school; for preparing students for and judging law competitions, mock trials and moot court arguments, including those at the high school or college level; for published legal research-based writing; and for providing pro bono legal services.

vi. Non-practicing lawyers may elect to be on restricted status. This means they can maintain their law license but do not have to fulfill continuing education requirements.

As we saw through this discussion, Lawyers must be nimble navigators of change and must be ready for the impending regulatory revolution that will affect the profession. Forces such as technology, the government, globalization of commerce, and forms of property are driving change. Attorneys must respond to the need for specialization and expertise in non-law fields. Multidisciplinary practices will grow, where lawyers and non-lawyers work together generating revenues for the same business.