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Cfp :Indian Legal Solution Journal of Criminal and Constitutional Law [Vol 2, Issue 1] ISSN : 2581-8465.

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ILSJCCL (Indian Legal Solution Journal of Criminal and Constitutional Law) is e-journal having ISSN: 2581-8465 (A Unit of Raghvendra Kumar and Associates LLP,  Reg no. AAO-0844)

The team is currently working in the field of Free Legal Assistance and for students providing the platform for law students to represent themselves. To provide students with a better platform, they are aiming for e-journal.

The journal aims to provide a platform for engaging in multi-disciplinary discussions on the criminal as well as constitutional laws. The Law Review primarily seeks to promote a culture of research and academic writing among students, academics and jurists, which would be readily available in the public domain, by publishing it online.

The Editorial Board is pleased to invite original and unpublished Papers for Publication in Volume 2 issue 1

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MEDICAL NEGLIGENCE AND LAW MESSING UP WITH HEALTH- A STUDY: VIDYOTTAMA SHARMA & PRADEEP SINGH

ISSN: 2581-8465

Medical negligence and law “messing up with health”- A Study

Author: Vidyottama Sharma & Pradeep Singh

Research Scholar, Sos Law, Jiwaji University, Gwalior, M.P

Abstract:

All peoples are not aware of their rights. In India, most of the peoples are illiterate and unaware of healthcare knowledge. They have a lake of knowledge about medical negligence. This paper presents some information about medical negligence what comprises carelessness in common and criminal law and what is required to demonstrate it. Therefore the various legal decision has been explained on what comprise negligence and what is necessary to demonstrate the evidence about it.

Introduction :  

Doctors need logical information, specialized ability and comprehension about health and illness. The individuals who utilize these with boldness, with modesty, with insight and as per restorative morals give a remarkable support of common people. Routine with regards to the drug is rendering incredible support of the general public. The doctor who is a specialist in their profession is an educator who aides his patients about how to live a healthy lifestyle and provides many ways to protect from sickness. The doctor has been characterized as a certified expert of drug or medical procedure in any of its branches and patient as an individual under treatment for infection or damage.

The profession of a doctor is very honorable. The connection between the patient and the specialist was considered as hallowed it depends on shared trust and confidence. Doctors are considered as obvious divine beings. They offer life to people who are experiencing different sicknesses. Peoples do trust doctors. People who go to the doctor think that the doctor will cure them. They approach him with that certainty. Simultaneously, there is an obligation with respect to the doctor to appear such commitment with legitimate consideration.

At present, the therapeutic occupation has turned out to be popularized. Professionals are receiving misleading techniques to pull in the guiltless patients and along these lines acquire cash. A few doctors propose their patients to experience different tests that too in a specific research facility which are in certainty superfluous. There might be an unscrupulous plot between that research facility and the specialist. Furthermore, some different specialists recommend a larger number of drugs than should be expected on the letter cushion of a specific therapeutic store.

There may additionally exist some comprehension among specialists and pharmaceutical organizations for endorsing their item. The career in medicinal is a respectable occupation and it ought not to be brought down to the degree of a straightforward business. Nowadays numerous specialists have progressed toward becoming absolutely cash disapproved, and have overlooked their Hippocratic Oath. Since many people in India are poor. Medicinal treatment is out of reach of the poor. The fundamental driver of carelessness in Government Hospital is because of the inadequacy of doctors. The doctor’s proportion is exceptionally low. The deficiency exists at all levels, including authority specialists, medical caretakers, and paramedical staff.

The fundamental target of the examination is to feature the primary disadvantage of the current medico-legal framework in society. In every court’s judges are not specialists in medicinal science this itself makes trouble for them choose cases identifying with medicinal negligence. Additionally, judges need to depend on declarations of different specialists and doctors. The specialist doctor who addresses the court, favor another doctor who is implicated in a court case.

Concept of Medical Negligence :

The first and foremost aim of the doctor’s profession is to render administration to mankind with full regard for the respect of man. It is the obligation of the doctor to utilize essential expertise, care, judgment and consideration in the treatment of his patient. Any inability to practice the previously mentioned obligation would prompt activity for medical negligence. The meaning of Medical Negligence is the violation of obligation owed by a specialist to his patient to practice sensible consideration and ability, which results in some physical or mental incapacity. Medical negligence law is created essentially by common activities. Medical negligence is a serious crime due to which a person can lose his physical and mental capacity or own life. Kinds of Negligence: Active negligence, Willful negligence, Continued negligence, Criminal negligence, Hazardous negligence. Medical negligence may vary from person to person. It has a serious impact on a persons health.

The legal obligation of a doctor :

Aside from the capabilities of doctors, antiquated writing discusses proficient morals and Physicians obligations and their liabilities for making hurt the patients. In this manner, the first obligation of the Physician was to analyze the illness cautiously and simply subsequent to determining the infection he could begin the treatment with his capacity and sensibility.

In Indian law, there shall be a provision for punishment for damages caused by negligence in treatment. Financial punishment depended on the societal position of the injured individuals whether the casualty of abuse was a creature or an individual of the working class or lord’s entourage. The doctor’s obligation to mind changed with the societal position of the individual under treatment, yet the level of monetary punishment was definitely not reliant on the level of blame. It was a flat out circumspection of the judge to force punishment, considering all components. The principles identifying with the obligation of doctors for their inappropriate medicinal treatment were not acquainted just with protect the patient, yet in addition to good organization of the State. The law winning in antiquated India tried to force fines, which were kept in the state exchequer, however, no damages were to be given to the victim.

The obligation of Care:

As per Lord Wright, no instance of significant carelessness will emerge except if the obligation to be cautious exists among doctors and patients. This specific position made numerous issues. The English court expressed that the obligation to take care emerges when the relationship is set up. This relationship may contrast from case to case in light of the fact that the English Courts have not had the option to advance an equation of general application. This relationship need not really be legally binding one, yet it may likewise emerge if the specialist acknowledges the duty and embraces the treatment and the patient submits to his heading and treatment as needs are.

He owes an obligation to the patients to utilize steadiness, care, information, expertise, and alert in overseeing the treatment. An individual affirming the Science of drug speaks to the world that he has the expertise and fitness to practice prescription. Depending on this portrayal, on the off chance that someone consents to the treatment and doctor plan something for him, which is probably going to cause physical damage except if finished with due consideration, perseverance, and expertise, he will be responsible for violation of the obligation to take care.

Violation of Duty to Take Care:

Rupture of obligation to take care means excluding to accomplish something which a sensible man would do or accomplishing something which he would not do. The standard of sensible consideration is variable relying on the condition of information and capability in therapeutic ability at a significant time. Any doctor is relied upon to have the essential ability and capability in his occupation. A specialist can’t be held subject for silly damage in the event that he has applied sensible ability and skill, expected of common restorative professional of normal reasonability.

To be brief it very well may be said that the inability to release the obligations embraced or emerging from the connection among doctor and patient makes the doctor will respond. So before starting the treatment, the doctor ought to inspect the patient in a suitable way. Recommending drugs on the phone in a crisis isn’t irrational given the patient is analyzed as right on time as could be expected under the circumstances. During the hour of treatment, disappointment in taking care of the patient’s condition is a violation of an obligation, on the grounds that a specialist must take care of his patient with sensible productivity.

Since no broad standard has been advanced, to shape the premise of these conditions which offer ascent to the doctor’s obligation to mind, the court has through the choices over various cases developed a law where the obligation to take care exists. The doctor being in a trustee position owes obligation to be cautious while undertaking to treat or mend an individual. His obligation is to act with the most extreme great confidence towards the patient. He should decline to give treatment in the event that he can’t achieve a fix or the treatment, which will be of any advantage to the patient.

The doctor’s obligation is to be incautious in diagnosing the patient’s illness and familiarize him with the treatment to be given or activity to be performed. The doctor should give legitimate guidelines and caution to the patient, which he should see during the treatment and dose to be taken. Doctors are under commitment to provide for the patient legitimate consideration during treatment and after treatment with due persistence at the end of the day, it very well may be said that patients ought not to be deserted. It is the obligation of the doctor to make genuine and complete honesty with regards to the ailment treatment and dangers associated with treatment. It is the lawful obligation of each expert to take educated assent regarding persistent.

Constitutional perspective:

The right to health has not been integrated directly under the Indian Constitution. the sole right that’s associated with right to health is that the right to life secure beneath the Constitution.

Strict Liability in Medical Case:

Strict liability is applicable only in a few cases. The medications, infusion, glucose and blood transfusion to the patients may once in a while cause damage to the patient. The patient will most likely be unable to demonstrate carelessness in such cases. Neither Indian law nor English law acknowledges the use of strict liability to the medical service. On the off chance that exacting risk is made material, medical clinics will quit giving the medications and treatment because of dread of severe obligation. Life-saving blood may not be accessible to the patients in the medical clinic because of risks of tainting making them carefully at risk.

Criminal Liability under Penal Code:

Indian Penal Code doesn’t indicate the offence of medical negligence, yet on the off chance that any demonstration causes hurt, shocking hurt or passing it might fall inside the ambit of the penal provision of India Penal Code under section 304-A. The expresses that whoever causes the demise of any individual by doing any demonstration, so impulsively or carelessly as to imperil human life or the individual wellbeing of other, is deserving of punitive code, with detainment of either depiction for a term which may stretch out to half-year or with fine which may reach out to 500 rupees or with both under section337 of IPC. Section 52, 80, 81, 88, 90, 91, 92, 304A, 337, 338 of Indian penal code will be applicable in medical negligence.

Under Criminal law, the harmed individual or agents of perished unfortunate casualties get nothing in money related structure, yet the transgressor is to be punished or indicted. Be that as it may, under the Code of Criminal Procedure, 1973, the Court can make a request to pay to the oppressed, out of the punishment forced on blamed under section 357 for Cr.P.C. 1973.

The obligation under the Indian Consumer Protection Act:

The organizations which have been established under the Act for redressal of shopper complaints are to settle questions at the area, State and National level. The District Consumer Disputes Redressal Forum in each area of the State set up by the State Government is otherwise called District Forum. It is the main court in the pecking order. At that point, there is State Consumer Disputes  Redressal Commission known as the State Commission, likewise settled by the State Government. In both cases, the endorsement of the Central Government is required. At long last, there is the National Consumer Dispute Redressal Commission built up by the Central Government. Foundation of all the previously mentioned different organizations must be finished by the warning. Strangely, every one of the States in the nation didn’t accomplish the qualification of having a Forum in every single region, in this manner over and over open vivacious bodies unsettled the issue and suitable headings were issued to the administration concerned.

Judicial pronouncement:

In R. v. Bateman, case the responsibility of the doctor and their obligations were examined. The court expressed that if a medicinal specialist holds himself out to be a talented professional he is under a commitment to utilizing the due alert, steadiness, care, learning, and aptitude in the treatment. The law requires a reasonable and sensible standard of consideration and ability regardless of the way that he is a qualified or inadequate expert by a lower standard. He need not embrace to treat if the professional believes it to be past his capability. It is additionally unimportant whether he rendered the administration needlessly or for remuneration. The standard of consideration and ability should be reasonable and sensible. It should nor be an unusually exclusive requirement nor an exceptionally low one. While arbitrating upon the standard of consideration to be seen by a therapeutic man, one ought to likewise have respect to some other important factors, for example, proficient position, specialization, condition of medicinal learning, improvement, accessibility of offices, area and so forth.

These perceptions clarify that careless demonstration must be the proximate reason for the damage supported by the plaintiff. It is seen that not many unfortunate casualties grumbled against the negligence of the doctor and regardless of whether they sue for harms the case is chosen insubordinate or lower court and it rarely goes in the offer under the watchful eye of the High courts. A number of cases chose in higher courts is irrelevant and that too without setting out any new guideline or hypothesis as to obligation in torts.

An individual, who holds himself out as prepared to offer restorative guidance or treatment, impliedly embraces that he has aptitude and information and knowledge about the profession. Such an individual whether he is an enlisted doctor or not in the event that he is counseled by a patient he owes the patient certain obligations to be specific an obligation of consideration in the organization of the treatment.

In-State of Punjab v. Mohinder Singh Chawla it was pronounced that since the right to health was an essential piece of the right to life the Govt has a constitutional commitment to give health services.

In suresh gupta case the Apex court said that the complaint against the doctor must show negligence or imprudence of such an extent as to demonstrate a psychological express that can be portrayed as absolutely unconcerned toward the patient. Such gross negligence alone is punishable. A private complaint of impulsiveness or carelessness against a specialist may not be engaged without at first sight proof as a sound assessment of another skillful specialist supporting the charge. Moreover, the examining official should give a free supposition ideally of an administration specialist. At long last, a doctor might be arrested just if the police officer accepts that he would not be accessible for prosecution except if captured.

Conclusion:

There are many subjects in India in which an act should be enacted. Medical negligence is one of them. There is no separate penal provision for medical negligence. Whenever crime of medical negligence occurs than Constitutional provision, Indian penal code, criminal procedure code, consumer protection act, and tort will be applicable. Medical negligence may vary from person to person. Hence a complete medical negligence action must be enacted.

References:

H.M.V cox, medical jurisprudence and toxicology, eastern publication new delhi2001 p.16

In R. v. Bateman 1925 94 L.J.KB 791

K. P. S. Mahalwars, Medical Negligence and The Law Concept Liabilities, Deep & Deep Publication Delhi 2000 p.131

Pandya and Sunil K, Doctor- Patient Relationship and Medical Ethics, Journal of Indian Law  Institute 1993 vol.3 april

P.M. Bakshi, Nurses and the Law, Journal of Indian Law Institute 1994 vol.36 july

Robert C. Derbyshime, Medical Ethics and Discipline, 2001, vol. 9

COMPENSATION TO VICTIM: A CRITICAL APPRAISAL: NEHA BHARTI & CHANDRASHEKHAR

ISSN: 2581-8465

COMPENSATION TO VICTIM: A CRITICAL APPRAISAL

Author: Neha Bharti & Chandrasekhar

‘Every man is guilty of all the good he did not do’ – Voltaire

Abstract

Compensation to the victims of crime is a matter of concern, throughout the world. The law of Manu requires the offender to pay compensation and medical expenses in case of injuries to the sufferer and also pay to the satisfaction of the owner where goods were damaged. In all cases of cutting off a limb, wounding or bleeding, the assailant shall pay the full medical expenses.[1]  The position of the victims of crime in India is worse and to a certain extent the victims were not the concern for traditional criminology. The condition of the victim of the crime was the least concerned issue for decades. The purpose of compensation is straight forward; compensation serves to right what would otherwise count as wrongful injuries to a person or their property. The criminal justice system in India would ensure efficient and efficacious justice only when the law recognizes the right of victims & to provide them adequate compensation. Reform towards a restorative criminal justice system hinged on the amendments made to the Criminal Procedure Code of 1973 in 2009.[2] These amendments were undertaken by the government to reform India’s old criminal laws. The major propel of this amendment is on defining ‘victim’ and provisions related to victim compensation which is dependent on the discretion of the judge. Compensation to the victim awarded by the court to meet the ends of justice in a better way. The prime focus of this article is victim compensation law pre and post amendment and its interface with criminal justice. Further the article focus on various Apex court judgments in comparison with pre and post amendment.K

I. Position Prior to the Amendment

A careful glance at the Cr.P.C.,1973 reveals a highly fragmented legislative scheme for compensating victims. In pursuance of the recommendation of the law commission in its 41st    report (1969), a provision was made for the victims of crime that have been provided in sec 357[3].

Section 357[4]: Order to Pay Compensation.

(1) When a Court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part, the Court may, when passing judgment, order the whole or any part of fine recovered to be applied-

(a) in defraying the expenses properly incurred in the prosecution;

(b) in the payment to any person of compensation for any loss or injury caused by the offence, when compensation is, in the opinion of the Court, recoverable by such person in a Civil Court;

(c) when any person is convicted of any offence for having caused the death of another person or of having abetted the commission of such an offence, in paying compensation to the persons who are, under the Fatal Accidents Act, 1855 (13 of 1855), entitled to recover damages from the person sentenced for the loss resulting to them from such death;

(d) when any person is convicted of any offence which includes theft, criminal misappropriation, criminal breach of trust, or cheating, or of having dishonestly received or retained, or of having voluntarily assisted in disposing of, stolen property knowing or having reason to believe the same to be stolen, in compensating any bona fide purchaser of such property for the loss of the same if such property is restored to the possession of the person entitled thereto.

(2) If the fine is imposed in a case which is subject to appeal, no such payment shall be made before the period allowed for presenting the appeal has elapsed, or, if an appeal is presented, before the decision of the appeal.

(3) When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment, order the accused person to pay, by way of compensation, such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.

(4) An order under this section may also be made by an Appellate Court or by the High Court or Court of Session when exercising its powers of revision.

(5) At the time of awarding compensation in any subsequent civil suit relating to the same matter, the Court shall take into account any sum paid or recovered as compensation under this section.

So, this was the only provision in the Cr.P.C to compensate the victims of offences. The compensation was to be payable by the accused only on his conviction. The capacity of the offender plays a very important role while awarding the compensation. This well-established fact that the majority of the people who are accused of and are convicted of a crime are poor and henceforth this provision of compensation was accused dependent and that was never a reasonable answer to the misery for the victims of crime.

It is crystal clear from these cases:

 In Sarwan Singh and others v. State of Punjab,[5] Balraj v. State of U.P.[6], Baldev Singh and Anr. v. State of Punjab[7], Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd. and Anr.[8], the Supreme Court held that the power of the Court to award compensation to victims under Section 357[9] is not ancillary to other sentences but in addition thereto and that imposition of fine and/or grant of compensation to a great extent must depend upon the relevant factors apart from such fine or compensation being just and reasonable.  

II. Position Post Amendment

Victim Compensation Scheme was originally not in the Code of Criminal Procedure, 1973. This provision of a victim compensation scheme has been introduced by the way of amendment in 2009 recommended by Malimath Committee. The Malimath Committee under the chairmanship of Justice V S Malimath Chief Justice of Karnataka & Kerala High Court was formed by the NDA government in 2000. The committee analyzed that the system must focus on justice to victims, made recommendations, which include the rights of victims and adequate compensation to the victim. The Malimath Committee submitted its report in 2003 suggesting 158 recommendations but here we will put light on recommendation related to “justice to the victim of crimes”.  The recommendations related to it are as follows:

  1. Legal services to victims in selected crimes may be extended to include psychiatric and medical help, interim compensation and protection against secondary victimization.
  2.  Victim compensation is a State obligation in all serious crimes, whether the offender is apprehended or not, convicted or acquitted. This is to be organized in separate legislation by Parliament. The draft bill on the subject submitted to Government in 1995 by the Indian Society of Victimology provides a tentative framework for consideration.
  3.  The Victim Compensation law will provide for the creation of a Victim Compensation Fund to be administered possibility by the Legal Services Authority. The law should provide for the scale of compensation in different offences for the guidance of the Court. It may specify offences in which compensation may not be granted and conditions under which it may be awarded or withdrawn.[10]

The concluding view of the committee that the criminal justice administration will give a new direction to ensure the right of the victim by compensating for the loss of life, limb, and property to the victim.  The quantum of fine recovered or diversion of funds generated by the justice system, the proposed victim compensation can be mobilized at least to meet the cost of compensating victims of violent crime.

After the recommendation of the Malimath Committee Report in 2003 Sec 357A[11], has been added in CrPC by way of The Criminal Law (Amendment) Act 2009, which specifically deals with the victim compensation scheme and related provisions.  To address the definition of victim, section 2(wa)[12] of the amended Cr.P.C (via Criminal Amendment Act, 2009) as below:- 

‘Victim’ means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression ‘victim’ includes his or her guardian or legal heir”[13]

III.Section 357A[14]Victim Compensation Scheme

(1) Every State Government in coordination with the Central Government shall prepare a scheme for providing funds for the purpose of compensation to the victim or his dependents who have suffered loss or injury as a result of the crime and who require rehabilitation.
(2) Whenever a recommendation is made by the Court for compensation, the District Legal Service Authority or the State Legal Service Authority, as the case may be, shall decide the quantum of compensation to be awarded under the scheme referred to in sub-section (1).

(3) If the trial Court, at the conclusion of the trial, is satisfied, that the compensation awarded under section 357 is not adequate for such rehabilitation, or where the cases end in acquittal or discharge and the victim has to be rehabilitated, it may make a recommendation for compensation. 

(4) Where the offender is not traced or identified, but the victim is identified, and where no trial takes place, the victim or his dependents may make an application to the State or the District Legal Services Authority for the award of compensation. 

(5) On receipt of such recommendations or on the application under sub-section (4), the State or the District Legal Services Authority shall, after due inquiry award adequate compensation by completing the inquiry within two months. 

(6) The State or the District Legal Services Authority, as the case may be, to alleviate the suffering of the victim, may order for immediate first-aid facility or medical benefits to be made available free of cost on the certificate of the police officer not below the rank of the officer in charge of the police station or a Magistrate of the area concerned, or any other interim relief as the appropriate authority deems fit.

Under this Section, every state government in coordination with the central government has to prepare a scheme for providing funds for the purpose of compensation to the victims or to the dependents who have suffered loss or injury as a result of the crime. It means that the new provision has substantially widened the scope of compensating the victims of crimes. The term “dependent” of the victim as defined in the victim compensation scheme include wife, husband, father, mother, brother, sister, son, daughter, grandmother, grandfather, father-in-law, mother-in-law and it includes any other person who is leading life on the income of the victim.[15] For an outlay of compensation to the victim, there shall be a fund called “The Victim Compensation Fund” from which the amount of compensation to be paid as decided by District Legal Service Authority to the victim or to her dependents. All states have their own victim compensation Scheme which is in consonance of Sec 357A[16] Cr.P.C. With special reference to State of Bihar the victim compensation fund made under Sec 3 of the scheme.[17] Whenever a recommendation is made by the court for compensation under Sec 357-A(4)[18] of Cr.P.C, the DLSA shall examine the case & verify the contents of claim with regard to the loss or injury caused to victim and arising out the reported criminal activity and may call for any other relevant information necessary in order to determine genuineness. After verifying the claim, the DLSA shall after due inquiry award compensation within two months, in accordance with the provision of the scheme.[19] The DLSA decide shall decide the quantum of compensation to be awarded to the victim or his dependant on the basis of loss caused to the victim, medical expenses to be incurred for rehabilitation including such incidental charge as funeral expenses, etc. [20]

IV. Purpose of sec 357A[21]

The main purpose of the provision is to reassure the victim that he or she is not forgotten in the criminal justice system. It provides that District Legal Service Authority or State Legal Service Authority in every state shall ensure that the victim or victim’s family should get compensation especially a person belonging from the weaker section of society. DLSA’s work is not only to ensure compensation to the victims but also to develop a mechanism for rehabilitation of victims & their dependent or family. DLSA is set up to ensure that individually does not suffer due to a lack of knowledge of their rights and responsibilities or of the service available to them or due to an inability to express their legal needs effectively. [22]

V. Interpretation of Judiciary

Judiciary from different pronouncements secure the right of the victim to get compensation under sec 357[23]& sec 357 A[24] of CrPC. All court should exercise the grant or refusal of compensation in a particular case depending upon the case and there exists a mandatory duty on the court to apply its mind to the question in every criminal case. Recently, the Supreme Court in Ankush Shivaji Gaikwad v. State of Maharashtra[25], while considering the amended provision of the code, reiterated its view and further observed that henceforth the courts have to give reasons for not compensating the victim while deciding the case. The court also observed that the amended Cr.P.C brought about in 2009 focus heavily on the rights of victims in a criminal trial, particularly in trials relating to sexual offences. The court summed up its judgment as under[26] in favor of victims.

While the award or refusal of compensation in a particular case may be within the court’s discretion, there exists a mandatory duty on the court to apply its mind to the question in every criminal case. Application of mind to the question is best disclosed by recording reasons for awarding/refusing compensation. It is axiomatic that for any exercise involving application of mind, the Court ought to have the necessary material which it would evaluate to arrive at a fair and reasonable conclusion.[27]

The prominent feature of this judgment is that now the courts are obliged to give reasons for not recommending compensation to the victims of the crime.

The Supreme Court in Laxmi v. Union of India[28], direct that the acid attack victims shall be paid compensation of at least Rs 3 lakh by State Government / Union Territory concerned as the aftercare & rehabilitation cost. On this amount, a sum of Rs 1 lakh shall be paid to such a victim within 15 days of the occurrence of such an incident to facilitate immediate medical attention and expenses in this regard. The balance sum of Rs 2 Lakhs shall be paid expeditiously as may be possible positively within 2 months thereafter. The chief secretaries of the states & the administrator of UTs shall ensure compliance with the above direction.[29] The Supreme Court has held that in cases where the accused is unable to pay compensation to the victim or his/her heirs, that same amount of compensation, which is awarded by the Court, must be paid by the State in accordance with the provision of S.357-A Criminal Procedure Code. [30]

In a landmark case, Supreme Court has held that under Section 357-A[31] of the Cr.P.C -victim compensation scheme, it is the duty of the court to direct the grant of interim compensation subject to final compensation being determined later. Interim compensation is granted in case of abduction and murder of the deceased businessman and his son by appellants-no reason as to why the victim’s family should not be compensated under s. 357-A – State Govt. directed to pay an interim compensation of Rs. 10 Lakhs to the family of the victim.[32]

The Delhi HC while hearing an appeal in case of Gaya Prasad Pal v. State[33], held that “A child born out of rape, either a minor or a women who is an adult, is clearly a victim of the act by the offender and entitled to compensation independent of the amount of compensation paid to his / her mother”. Furthermore, Delhi HC cited sec 357 of Cr.P.C and POCSO Act which deals with provisions of compensation for victims of sexual offences, stating that a child born out of rape would be “covered under the definition of both victim as well as dependant on the victim”.[34]

Section 357-A[35] provides Rs 10, 00,000/- as interim compensation was given to the mother of the deceased, a victim. It was the case of custodial death. Court has held that the victim compensation scheme should be implemented properly, it would reduce the crime rate in the future.[36] Gauhati High Court has awarded compensation to children of Victim -accused husband murdered wife-wife leaving behind 4 minor children. State Government directed to deposit sum of Rs 1, 00,000 /- towards compensation payable to children of deceased, in fixed deposit which they shall be able to withdraw on attainment of age of majority. [37]

VI.             Various scheme of NALSA in assuring compensation and rehabilitation to victims

  1. NALSA (Victims of Trafficking & Commercial Sexual Exploitation) Scheme, 2015

The primary objective of this scheme is to provide legal assistance against trafficking and sexual exploitation. The scheme seeks to provide action to prevent sexual exploitation of the individuals and ensure their rescue and rehabilitation of the victims of trafficking and voluntary sex work.

2. NALSA (Legal Service to Victims of Acid Attacks) Scheme, 2016

Acid attack has its steep rise in past few years and as usual the most of the victim are women and only women. The main objective of the scheme to create and spread awareness about the entitlements of a victim of acid attack and also facilitate the victims so that they can have access to medical facilities, rehabilitation services, adequate compensation & other benefits under various legal provisions and government schemes. Legal services clinics shall set up at hospital having facilities for treatment of burn. 

3. NALSA (Legal Service to the Victims of Drug Abuse & Eradication of Drug Menace) Scheme, 2015

The main objectives of this scheme are to spread awareness amongst all stakeholders regarding the ill effect of drug abuse and to prevent trafficking and for putting in place. The States Legal Services Authorities have established special units in each district who shall create a database of all existing schemes etc for the prevention of drug abuse & rehabilitation of victims and shall disseminate the same to all stakeholders. 

VII. Flaws in the law for victim compensation

The policy of our criminal justice system toward victim is inclined to a certain extent. But the main problem arises in the implementation of the policy made by the legislature. The provision of victim compensation being discretionary, it neither purports a legal obligation on judges to order for compensation in all suitable cases to the victims nor it requires them to give the reason for the same.

The award of compensation has not become a rule even after 9 years expire from the implementation of sec 357A[38].  & interim compensation which is very important is ignored by the courts. Interim compensation is very important in some cases to meet immediate medical facility & it ought to be paid at the earliest so that immediate need of victim can be met for determining the amount of interim compensation. The court may have to take note of facts and circumstances of each case including the nature of offence, the loss suffered and the requirement of the victim.

 The upper limit of the compensation fixed by some States is apparently low & it is not fulfilling the intention with which the sec was inserted in the code.

VIII. Conclusion

Our criminal justice system provides more rights to accused and less right to victims. But justice phenomena demands that balance between the claims of two parties, who are in front of the court. Right available to the victim of crime is just for the sake of showcase, these rights are not properly given to the victim. Compensation to the victim of crime plays a major role in rehabilitation and to cope up with the offence against them. The liability to pay compensation to the victim was only on the accused before the 2009 Criminal Law Amendment Act.  After the 2009 amendment the liability to pay compensation is on the state government by the way of the fund created especially for victim compensation. With the introduction of 357A[39]compensation granted to the victim by the order of court through district legal service, authority is now mandatory which leaves no discretion to the court. As in sec 357[40], the order of compensation by the court is discretionary leaving a loophole in the criminal justice system in awarding compensation to the victim. The amounts of a maximum limit of compensation granted to the victims in different states are very low.

DLSA has to keep a check that no victims & their dependent are deprived of the compensation which is given under Cr.P.C. As there are reasons due to which many people in a remote area does not have access to justice due to economic reasons, lack of information & judicial encumbrance. Judiciary has also paved a way for the grant of compensation to the victims by way of different judicial pronouncements but to effectuate any progressive victim compensation reforms; there is a need for a sensitized judiciary that recognizes the importance of victim compensation. The need of the hour is to appoint those persons who are well acquainted with the legal provision of the justice delivery system so that they can guide the ignorant victims about their rights.

 


[1] M.J. Sethna, Society and the Criminal 218 ( M.N. Tripathi, Bombay 1952); M.J. Sethna, Jurisprudence 340 (1969) .

[2] Victim Compensation Scheme- Shortcomings & Recommendations, Bharti Manglani, Ujala, vol. 4 , issue 2, page no.87.

[3] Criminal Procedure Code, 1973, Section 357.

[4]Ibid.

[5]Sarwan Singh and others v. State of Punjab,[5] Balraj v. State of U.P (1978) 4 SCC 11.

[6]Balraj v. State of U.P. , (1994) 4 SCC 29.

[7]Baldev Singh and Anr. v. State of Punjab(1995) 6 SCC 593.

[8]Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd. and Anr(2007) 6 SCC 528.

[9]Id. note. 3.

[10] Malimath Committee Report , 2003, http://www.pucl.org/Topics/Law/2003/malimath-recommendations.htm  May 25, 2018,  3.50 PM .

[11]Criminal Procedure Code, 1973, Section 357A.

[12]Criminal Procedure Code, 1973, Section 2(wa).

[13]Id. note 12.

[14] Supra, 11.

[15]The Bihar Victim Compensation Scheme, 2011.  Section 2(e).

[16] Supra, 11.

[17]The Bihar Victim Compensation Scheme, 2011.  Section 3.

[18]Criminal Procedure Code, 1973, Section 357A(4).

[19] The Bihar Victim Compensation Scheme, 2011.  Section  5 (1). 

[20]The Bihar Victim Compensation Scheme, 2011.Section5(3).

[21]Id. note 18.

[22]‘ The role and challenges of legal services authorities in providing legal services to the poor & marginalized’, Justice S.K. Mittal , Nyaya Deep, Vol XV, Issue 3 &4 ,July  2015 at page no.55.

[23] Supra 3.

[24]Supra 18.

[25]Ankush Shivaji Gaikwad v. State of Maharashtra(2013) 6 SCC 770.

[26] Id. at 797.

[27] Ibid.

[28]Laxmi v. Union of India, (2014) 4 SCC 427 at para no 14. (2014) 4 SCC 427.

[29]Ibid.

[30] State of Himachal Pradesh v. Ram Pal, (2015) 2 SCC 227.

[31]Supra, 18.

[32] Suresh & another V. State of Haryana, (2015) 2 SCC 227.

[33]Gaya Prasad Pal v. State CRL.A. 538/2016, Delhi H.C decided on 9th Dec 2016.

[34]  Ibid.

[35]Supra 18.

[36] Sabu E. K. and another v. State & others, 2016 CRI.L.J. 3418

[37] Md. Abdul Motleb V. State of Assam , 2016 CRI.L.J. 1701 ( Gau)

[38]Supra 18.

[39]Ibid.

[40] Supra 3.

DRUG ABUSE AND THE LAW: MUSKAN DOSAR & MUSKAN SAHA

ISSN: 2581-8465

DRUG ABUSE AND THE LAW- Social legal analysis

Author: Muskan Dosar[1] &Muskan saha[2]

“Drug abuse is a social evil. It destroys vitals not only of the society but also adversely affects the economic growth of the country…..”

-Y K Sabarwal, Former Chief Justice of India (2006)

ABSTRACT:

Drug abuse is not as minor topics as it seems to be, it is one of the most “sensitive” and “neglected” area which needs major attention. We being human beings act so ignorant about the things happening around us, so many of the lives around us are at stake due to the misuse of drugs. Being so many statutory provisions made, still, we are not able to combat drug abuse in India. There is a lack of implementation of laws in our country.

Major causes for drug abuse can be categorized into- social, economic and mental issues. Drug abuse is a complex problem resulting in serious crimes, such as- human trafficking, money laundering, and other organized crime. It is also caused by various serious issues, such as – poverty, unemployment, addiction, mental sickness, etc.

Abusing drugs can lead the person to lifelong consequences such as memory loss, high blood pressure, mental illness, heart failure, stroke, lung damage, and coma, and may also lead to the death of the user.

In this paper discussion will be on:

  • What is drug abuse?
  • Types of drug abuse,
  • Causes of drug abuse,
  • Evaluation of existing government policies and statutory provisions made to combat drug abuse,
  • Suggestions to curb the problem of drug abuse.

INTRODUCTION:

Drug abuse usually involves selling, buying or abusing these substances, which can lead to arrest, criminal charges, and imprisonment. The term “drug abuse” is often associated with illegal drugs such as cocaine, heroin, or marijuana. Nowadays, drug abuse is a trending fashion statement among youths. Moreover, adults of age group 16-25 are using drugs out of curiosity and then being addicted to it, they lose control over their own lives.

According to Article 47[3]– the state shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the state shall endeavor to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.

This article is responsible to keep a check and restrict the use of drugs except for medicinal purposes. Although Part IV[4] is non-enforceable,[5] usually this provision[6] applies to justify penal drug policies. Drugs and Poisons are the subjects of the concurrent list[7]on which both the state and the center can make law.

The Indian Parliament passed the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), without much debate. The NDPS Act came into force on 14 November 1985, replacing the Opium Acts and the Dangerous Drugs Act. The 1940 Drugs and Cosmetics Act, 1940, however, continue to apply.[8]

What is drug abuse?

“ drug abuse” implies improper or excessive use of therapeutic drugs or the use of non-medically useful or illegal drugs, even in moderate amounts and in the absence of addiction.[9]

The  World  Health Organization  Expert Committee on Addiction  Producing Drugs coined a  new term  “drug dependence”  to cover both psychological dependences as well as physiological dependence.  However, the older terminology, especially ‘drug addiction’ is still in use and is virtually used to label a person as a drug addict.[10]

Addiction v/s Abuse

Drug abuse is when the person uses legal or illegal substances in the way he should not use it. The person might take more than the regular dose of pills or use someone else’s prescription. He may abuse drugs to feel good, ease stress, or avoid the things which are a reality. But usually, he can able to change our unhealthy habits or stop using it altogether.

Addiction is when you the person can’t stop taking it. Not when it puts your health in danger. It creates financial, emotional, social and other problems for our loved ones. The urge to get and use drugs can fill up every minute of the day, even if you want to quit. It is badly addictive to the person who takes it. It also creates a really bad mental health problem like staying lost, longer time to memories things, getting emotional in small things and etc.

TYPES OF DRUG ABUSE:

There are several types of drug abuse. Drug abuse can majorly be categorized in the following types:[11]

Stimulant Abuse

Substances due to which physical and psychological functions are caused to speed up are called stimulants. Due to the use of stimulants, an individual may face an extreme boost of energy, euphoria, and a powerful sense of grandiosity. Whilesome stimulants substances help in battling mental illness, others may cause severe medical or psychiatric benefit. Some of the most commonly abused stimulants include:

  • Cocaine Abuse

Throughout the United States, cocaine is one of the most popular street drugs. It is derived from a coca plant ad that comes in a whited powder form. Youths usually use it for snorting. Someone abusing cocaine will experience an energetic, euphoric high for about 20 minutes before it wears off. As a result, most cocaine users abuse this substance back-to-back to maintain that high. Unfortunately, using cocaine frequently quickly leads to dependence and potential overdose.

  • Adderall Abuse

By far the most popular prescription stimulant, Adderall is used for the treatment of attention-deficit/hyperactivity disorder or ADHD. When taken as prescribed, Adderall can increase focus and attention. However, when it is abused, Adderall triggers a boost of energy and hyper focus, which can last hours. Abusing this prescription drug excessively can lead to cardiac complications up to and including heart attack.

  • Meth Abuse

Known on the streets as “trash” or “garbage”, meth is an extremely toxic stimulant that has a pseudoephedrine base, which is the primary ingredient that triggers stimulant effects. Meth also contains deadly elements such as paint thinner, hydrochloric acid, and battery fluid, to name a few. Individuals abusing meth will experience intense euphoric highs and equally as depressed lows. The up and down process of going from euphoric to depressed can be extreme and lead to severe psychological problems that have the potential to be permanent.

Opioid Abuse

More than 11 million people in the United States have abused opioids. Today, the opioid epidemic rages on and more and more people are becoming dependent on their opioids or opioids of choice. Opioids can be naturally occurring (such as heroin and codeine) or synthetic (such as fentanyl and OxyContin) but are all equally as addictive. Continual opioid abuse can result in vital organ damage or failure, respiratory problems, and overdose. In fact, drug abuse involving opioids is one of the leading causes of preventable death in the United States.

  • Heroin Abuse

Today, heroin is the kingpin of opioids, with nearly one million people in the U.S. abusing it. When heroin is abused, individuals obtain a pleasurable high that reduces or eliminates their physical and/or psychological distress. Countless heroin users were once prescription painkiller users, however, they found that heroin was easier to obtain and more affordable. Heroin is usually smoked or injected. Those who inject this opioid can suffer from collapsed veins and an increased risk for contracting blood borne diseases like HIV and hepatitis.

Prescription Painkillers

OxyContin, Vicodin, Percocet, and fentanyl are some of the most commonly abused prescription painkillers. When taken as prescribed, each one of these painkillers can pose a significant medical benefit, however when abused, they can be deadly. Prescription painkiller users tend to partake in behaviors such as doctor shopping, stealing prescription drugs from loved ones’ homes, and obtaining pills on the street. These medications can be smoked, snorted, swallowed, or injected. Since these opioids are semi-synthetic, it is impossible to know what exact substances are in these drugs, making them extremely risky to continue to abuse.

Sedative Abuse

Sedatives such as benzodiazepines are primarily used to treat anxiety disorders such as panic attacks, phobias, and obsessive-compulsive disorder. Benzodiazepines are highly effective in reducing anxiety and can also aid in helping individuals who suffer from sleep problems or seizures. However, they are very popular substances of abuse due to the feelings of detachment and relaxation that they produce.

  • Xanax, Ativan, and Valium

Xanax, Ativan, and Valium are benzodiazepines that work to calm the mind and body. When an individual consumes one or more of these benzodiazepines, he or she will become almost instantly relaxed. Unfortunately, when benzodiazepines like these are abused, individuals are at risk of experiencing excessive sleepiness, drowsiness, and respiratory depression. When an individual becomes physically and psychologically dependent on one of these prescription drugs and attempts to stop using suddenly, he or she can suffer from deadly withdrawal symptoms, including grand mal seizures.

  • Hallucinogens

Hallucinogens have long been part of club culture as substances that can enhance one’s experiences. While there are countless physical dangers of abusing hallucinations, one of the most pressing areas of concern is that someone who is under the influence of a hallucinogen can behave in a manner that is possibly dangerous or even deadly.

  • Ecstasy Abuse

When ecstasy is abused, individuals experience delusions and hallucinations that can be both visual and auditory. Those who are under the influence explain being on ecstasy as being in a state of complete euphoria. But when this drug is abused, several negative effects can occur, including dehydration that can be life-threatening.

Any and all types of drug abuse should be taken seriously, as allowing a substance use disorder to continue only leads to negative outcomes.

CAUSES OF DRUG ABUSE:

There can be majorly three causes of drug abuse:[12]

Social Causes:

In social causes, we can discuss all those social problems which are the basic causes of drug abuse. A poor relationship with parents is responsible for drug abuse among children, in most of the families we can see a huge lack of communication between child and parents and these things leads the child towards drug abuse.[13] Sometimes we can see it become a trend among friends to take drugs by the influence of those friends who are usually taking drugs. Drug users are taking drugs because it is easily available, we can see in the border area the people are taking drugs on a large scale because it is easily available in those areas.[14] Few of drug users are taking drugs because of their atmosphere, usually, we can see it in those people who are growing up in a home where alcohol and drug abuse is considered as normal behavior. Nowadays people are engaged in love affairs, the loss of a loved one and depression attracts a man more and more to the misuse of a substance. Unusual lifestyle is also responsible for drug abuse, usually, it is found in sex workers, transportation workers, and street children.[15]

Economic Cause

 In India poverty is a curse because it creates various problems one of them is drug abuse, financial worries lead people towards drug abuse because of mental pressure. People are producing narcotic drugs to increase income, so the production of narcotic drugs is responsible for the misuse of drugs.

Mental Causes

[16] There are mental causes which leads a person towards drug abuse situation of sadness, depression and stress are common causes for drug abuse. Sometimes users are misusing drugs because of low self-respect. Nowadays academic pressure is also creating stress because of this the people are misusing drugs.[17]

EVALUATION OF EXISTING GOVERNMENT POLICIES AND STATUTORY PROVISIONS MADE TO COMBAT DRUG ABUSE

Indian Parliament has enacted two Central Acts:

1. The Narcotic Drugs and Psychotropic Substances Act, 1985, and

2. The Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988.

The Narcotic Drugs and Psychotropic Substances Act, 1985 was passed to curb the problem of drug abuse and for the implementation of the international treaties and conventions. The act was amended in 1989, 2001 and in 2014.

This act prevents merchandise, cultivation, procurement, import Export, Possession, sale, purchase, utilization, and circulation of narcotic drugs and psychotropic substances except for medical and scientific purposes in accordance with the law.[18] The narcotic drug comprises cannabis, coca, and opium and manufactured drugs.[19]The Narcotic Drugs and Psychotropic Substances Act, 1985 defined the term psychotropic substance as any substance, natural or synthetic, or any natural material or any salt or preparation of such substance or material included in the list of psychotropic substances specified in the Schedule.[20] This act provides the provisions for search, forfeiture and captures the persons from any place in India who indulge in the drug activities. The hardness of this act proves that if a person is caught again in a large number of narcotics, then there is a provision for a death sentence.[21]

Although in the case of Harm Reduction Network v. Union of India,[22]the Bombay High Court ruled that the death penalty under Narcotic Drugs and Psychotropic Substances Act, 1985 is unconstitutional but the Court did not strike down Section 31-A of this act. It did state that the courts were no longer obligated to hand down the death penalty for repeat drug offenders under the Act.

In the case of E. Michael Raj v. Intelligence Officer, Narcotic Control Bureau,[23] the Supreme Court held that in the mixture of a narcotic drug or a psychotropic substance with one or more neutral substance/s, the quantity of the neutral substance/s is not to be taken into consideration while determining the small quantity or commercial quantity of a narcotic drug or psychotropic substance. It is only the actual content by weight of the narcotic drug which is relevant for the purposes of determining whether it would constitute small quantity or commercial quantity.

In the case of Abdul Aziz v. State of UP,[24] the court held that if a person arrested for minor offences under the provisions of Narcotic Drugs and Psychotropic Substances Act, 1985 is entitled to bail. Section 2(a), 4(2)(d), 7A, 39, 64A, 71, 76(2)(f) and 78(2)(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 provides the provisions for rehabilitation and the treatment of drug addicts.

The court can award the death sentence in case of certain repeated offense (such as manufacture, production, import, export, possession, and transportation) involving a large number of drugs.[25]

In December 2007 a special court in Mumbai awarded death to Ghulam Malik, caught with 142kg of hashish in the year 2004. Around 1.8kg of hashish had been recovered from Malik on an earlier occasion.

In February 2008 an Ahmedabad sessions court sentenced Omkarnath Kak who has been caught with 28kg of charas in 2003, to death. In 1988, Kaka had been arrested for possessing 40kg of charas.

In February 2012 A Chandigarh district court sentenced Paramjit Singh who has been caught with 10kg of heroin in 2007, to death. In 1998 he had been nabbed with 1.02kg of heroin.

Through the 2014 amendment, the death penalty was made non-compulsory and an alternative punishment of 30 years of imprisonment was introduced.

Suggestions to Combat Drug Abuse and Conclusion:

Drug trafficking is worse than murder because it leads to long term harmful physical and psychological effects, the pro-death advocates hold.

“Over a period of 10 years, more than three lakh cases have been registered under the Narcotic Drugs and Psychotropic Substances (NDPS) Act but there have been just three death sentences,” the official says. “The law doesn’t seem to be as harsh as is being made out to be.”

Being so many statutory provisions prevailing in India, still, we are not able to combat drug abuse. So many of the lives and so many families are been victimized of this social evil prevailing in the society.

Some of the suggestion to curb Drug Abuse are:

  • There should be a strict check on import and export of drugs in a country,
  • It should strictly be only made available to licensed dealers,
  • More and more awareness program should be organized by the government,
  • The central government along with state government should take initiative to curb the problem of drug abuse,
  • There should be coordination between multiple bodies helping to curb drug problem.
  • Parents should interact with their children more often
  • There should be proper counseling of drug addicts
  • Laws are not enough, until and unless we as a whole do not come against human trafficking,
  • Instead of punishment from society, youngsters should be encouraged to improve themselves,
  • Family pressure should not be so much, that a person may force himself to be a part of the drug abuse,
  • Authorities should track drug peddlers located almost in every small street and they should be penalized heavily,
  • We should interact more with the people around us, as we never know who may be a victim of this evil and why they did so,
  • If we are able to recognize, victims of drug abuse at an early stage, we can take early measures to help them out from fighting this evil prevailing in society.
  • Initiative such as- “The Nasha Virodhi Lok Sangharsh Committee which was shaped in 2018, actively creates awareness about the drug abuse in more than 70 villages of the area including Sasrali, Raur, Mangli, Garhi, Hawas, Gopalpur, Mattewara, Dholanwal and shares information about drug peddler with the police to put them behind bars”[26], should be taken more often.

Taking a step forward as an individual may help our society as a whole.


[1]Studying in 2nd year BBA LL.B. (Hons.) at ‘ The ICFAI University, Dehradun’; Email- muskandosar@gmail.com, Mobile no.- 9305024341

[2] Studying in 2nd year BBA LL.B. (Hons.) at ‘ The ICFAI University, Dehradun’; Email- muskancp11@gmail.com , Mobile no.- 7278672371

[3] The constitution of India, 1949

[4] ibid

[5] Article 37 of the Constitution of India, 1949.

[6] Article 47 of the Constitution of India, 1949.

[7] Entry 19, List III, Seventh Schedule, the Constitution of India, 1949.

[8] Section 80 of Narcotic Drugs and Psychotropic Substances Act, 1985 (Act 61 of 1985).

[9]Reddy KSN, The essentials of forensicmedicine and toxicology, 25th edition.  K Suguna Devi. Hyderabad. 2006:p526-34.

[10]Nandy  A.  Principles of forensic medicine. 2nd Edition.  New Central Book Agency, Calcutta, India. 2000:p565-72

[11] TYPES OF DRUG ABUSE, https://journeypure.com/understanding-addiction/types-of-drug-abuse/

[12] CHALLENGING DIMENSION OF THE PROBLEM OF DRUG ABUSE IN INDIA: A SOCIO-LEGAL ANALYSIS, authored by Dharmendra Kumar Kumawat & Deepak Kumar, (http://oaji.net/articles/2017/1201-1509102311.pdf)

[13] 0Drug Abuse Causes: What is the cause of Drug Abuse?, available at: https://www.healthyplace.com/addictions/drug-addiction/drug-abuse-causes-what-is-the-cause-of-drug-abuse/

[14] ShekharSaxena, Alcohol and Drug Abuse 206 (New Age International (P) Limited Publishers, New Delhi, 1st edn., 2003)

[15] Reasons for Substance Abuse, available at: http://alcoholrehab.com/drug-addiction/reasons-for-substance-abuse/

[16] ibid

[17] What Causes Drug Abuse in Young Women?, available at: https://www.tpaddictiontreatment.com/news-events/latest-articles/causes-of-drug-abuse-in-women

[18] Section 8 of Narcotic Drugs and Psychotropic Substances Act, 1985 (Act 61 of 1985)

[19] Section 2(XI) of Narcotic Drugs and Psychotropic Substances Act, 1985 (Act 61 of 1985).

[20] Section 2(XXIII) of Narcotic Drugs and Psychotropic Substances Act, 1985 (Act 61 of 1985).

[21]Section 31A of Narcotic Drugs and Psychotropic Substances Act, 1985 (Act 61 of 1985).

[22]2012 BomCR (Cri) 121

[23](2008) 5 SCC 161

[24] 2002 CriLJ 2913

[25] Section 31A, NDPS Act

[26] https://m.timesofindia.com/city/ludhiana/ludhiana-band-of-drug-fighters-beats-back-drug-runners-in-70-villages-reforms-some/articleshow/71179381.cms

SURROGATE ADVERTISING IN INDIA: A LEGAL PERSPECTIVE – ANCHAL

ISSN: 2581-8465

SURROGATE ADVERTISING IN INDIA: A LEGAL PERSPECTIVE

Author: Ms. Anchal

Student, Amity Law School

Abstract

As a famous saying goes “The answers to life’s problems aren’t at the bottom of a beer bottle.” The answers are in fact within one’s own self. And yet, yet a man gives in himself to alcohol which looks like ‘a helping hand’ at first but in reality is the most toxic tool of self-destruction. India is a country that was known to have discouraged drugs like alcohol. India’s culture had always been of one such kind. But things have changed ever since. In a recent global study, it was found out that alcohol consumption in India has risen by 55% over a period of 20 years. Today, there are serious problems arising in the country physically, emotionally and in all the other ways one can think of, due to not just alcohol but overall ‘Substance Abuse’. Substance abuse is slowly becoming a threat to the lives of thousands and lakhs of people in the country and to the overall nurturing and well-being of the country. ‘Substance Abuse’ in very simple terms can be put as ‘excessively harmful use of substances including drugs, alcohol, cigarettes, and tobacco.’ Substance abuse is a condition in which the victim continues its regular and harmful use of either drugs or alcohol or tobacco or does not stop smoking despite its negative consequences. It’s an illness, a disease whose cause can be attributed to many different things and which can result in serious and negative results.

Introduction:

Harmful substances that are consumed by people include drugs, alcohol, cigarettes, and tobacco. Even after knowing that these substances are so harmful that excessive consumption of them can cause death of a person and otherwise ruins the whole life of not just the consumer but also his/her near and dear ones, the consumer still doesn’t stop consuming and the producer of the product doesn’t stop producing or selling. There are so many lives that are ruined because of these substances and so many dead that are caused every year because of these substances but there are still many people who would not produce these substances for the sheer greed of some money. The Government doesn’t put a complete ban on these substances because it earns a good amount of tax from them (except for drugs). It is beyond my understanding why the Government is unable or is unwilling to ban the slow poison and look into it that the consumption is banned.

When advertisements are visually displayed on a television or in the middle of movies or before the beginning of one, they are displayed in the speed of light so that their mere obligation of showing an ad is fulfilled but that does the viewers no good or does not benefit their minds in any way. There are display pictures on the cigarette and tobacco boxes and packets too but no one takes them seriously. When the Government has banned the advertisement of these harmful substances, the producers of these substance brands still advertise the brand with the label of a different product which is mostly for the advertisement of these substances.

The world is being ruined. The country is being ruined. The lives of so many are being ruined. When men practice this kind of behavioral patterns when they cannot stop their excessive consumption of these substances, the lives of the family members is ruined more than that of the person. The lives of many children are ruined.

ADVERTISEMENTS

Advertising is a marketing means that employs an openly sponsored, non-personal message to be communicated in order to promote or sell a product, service or idea. Sponsors of advertising are typically businesses wanting to promote their products and services. An advertisement is what is promoted through advertising. An advertisement or ad is a paid, non-personal communication of a message of promotion of a good, service or idea amongst the general public.

SURROGATE ADVERTISEMENTS

The word Surrogate is defined meaning substitute and surrogate advertisements are exactly that. A surrogate advertisement can be defined to mean an advertisement that duplicates or tallies the brand image of one product to promote another product of the same brand. It means that another product of the same brand as any other product is advertised in order to keep in mind of the general public that product of the same brand which cannot be advertised directly.[1]

In layman’s terms, for example, there are just two products under the same brand naming Green chili. One product of this brand is green flake cigarettes and the other product is actually green chili pickle. Out of the two, the advertisement of green flake cigarettes is banned, so surrogate advertisement means promoting or showing ad of green chili pickle causing indirect promotion of green flake cigarettes too as they are two products under the same brand and when the viewer will view one product, the brand name and image will definitely create the image of another product of the same brand in the mind too.

The surrogate could either visually match the original product or could be a different product altogether but it is sold or marketed under the established brand name of the original product. Surrogate advertisements are used to promote, advertise and sell a product or products of the same brands when the original product cannot be advertised on mass media. Some examples of surrogate advertisements are Bagpiper Soda, Imperial Blue Cassettes and CDs,  Royal Challenge Golf Accessories and Mineral Water, etc.

FUNCTION OF SURROGATE ADVERTISEMENTS

Surrogate advertising tactics are used by the producers to keep the brand of their products which are banned from advertising alive in the minds of consumers. The most significant function of a surrogate advertisement is brand-recalling. A surrogate advertisement advertises other market commodities without specifically adhering to tobacco or liquor but under the same brand which makes the general public bring the tobacco and liquor of the same brand in their minds and hence their product is advertised.

Surrogate advertising came in India in the mid-1990s. This happened after the Cable Television Networks (Regulation) Act, 1995 read with Cable television Rules, 1994, came into being, which banned liquor, tobacco and cigarette advertisements directly. Earlier than this that the Cigarettes (Regulation of Production, Supply, and Distribution) Act,1975 made it mandatory to display a health warning on boxes and packets of the products and also in advertisements. Advertisements have a strong influence and impression in the minds of the consumers especially in this era of technology. Banning advertisements about liquor and tobacco was a step ahead by the Government to curb the influence of such advertisements and effectively diminish the ill effects of these products in general.[2]Today, Surrogate Advertisements by the producers of these products defeats the very purpose of the ban.

Launching new products under the same brand name is not an illegal or objectionable activity in nature and is known as a brand extension but the problem arises when a brand extension happens in response to a ban on advertisement of one product category.

SURROGATE ADVERTISEMENTS IN INDIA

In India, Surrogate Advertisements are majorly carried out in the tobacco and liquor sector. This is a direct result of the ban on direct advertisements of these harmful substances. Therefore to promote and conduct advertisement of their products to the general masses, the producers of these substances found a means to advertise their products through surrogate ads. The banned product is not directly shown to consumers but rather masked under the aegis of another product of the same brand name so that whenever there is a mention of that brand, people start associating it with its main product in their minds.[3]

Instances are brands like Kingfisher and Wills actually depend upon such advertisements to draw the attention of the public to their other products. For instance, Kingfisher promotes everything starting from bottled water, to soda and calendar under the brand name Kingfisher. Former Union Health Minister Mr. AnbumaniRamadoss had challenged the name of the Bangalore Indian Premier League (IPL) cricket team named as Royal Challengers, which was an evident surrogate advertisement for the liquor brand Royal Challenge. The Supreme Court of India has since pointed out that the team was not named ‘Royal Challenge’, the liquor brand but ‘Royal Challengers’. ‘Only those who consume alcohol can be attracted by these things,’ the bench observed inferring that this name would not have any effects on non-drinkers.

NATIONAL AND INTERNATIONAL REGULATIONS

CIGARETTES AND OTHER TOBACCO PRODUCTS(PROHIBITION OF ADVERTISEMENT AND REGULATION OF TRADE AND COMMERCE, PRODUCTION, SUPPLY, AND DISTRIBUTION) ACT, 2003 (COTPA)

Section 5 of the Act restricts the advertisement of tobacco products in all direct and indirect means. Sub-clauses (i),(iii) and (iv) of Rule 2 of COPTA Rules, make it clear that the use of a name or brand of Tobacco products for marketing, promoting or advertising any other product or products would be a form of indirect advertisement and is hence restricted. Similarly, surrogate advertising carried out by tobacco companies would mean to be a form of indirect advertisement and would be prohibited under Section 5.

THE CABLE TELEVISION NETWORKS (REGULATION) ACT,1995

Rule 7(2) (viii) of these rules expressly prohibit the direct or indirect promotion and advertisement of substances including cigarettes, wine, alcohol, tobacco products, liquor, and other toxic substances. The proviso to this rule says: A product that uses a brand name or logo, which is similarly used for cigarettes, tobacco products, alcohol, wine, and liquor, or other like intoxicants, may be advertised on cable services if certain conditions are fulfilled. The conditions are as follows:

  • The advertisement in visual means or in storyboard must only depict the product meant to be advertised and not the prohibited products in any form or manner.
  • The advertisement must not make any kind of, any express or implied reference to prohibited products.
  • The advertisement must not contain any terms or phrases leading to the promotion of the prohibited products.
  • The advertisement must keep away from using the specific colors or layout and presentations associated with the promotion of the prohibited products.
  • The advertisement must not use circumstantial promotion typically used for the promotion of prohibited products when advertising other products.

It is important to ban the advertisements directly as well as indirectly. Otherwise, the producers of these substances take the help of indirect means to advertise their products if only the direct advertisements are banned.

THE ADVERTISING STANDARDS COUNCIL OF INDIA(ASCI)

The advertising standards council of India is a voluntary self-regulating council. It is a body registered and working as a non-profit company under the Companies Act. It is established to safeguard against the ethically wrong use of advertising for the promotion of products that are regarded as hazardous and harmful to the society or to individuals to such a degree or extent that it is unacceptable to the general public or society at large.[4]

Section 6 of the code states almost the same thing as the cable rule. This section of the code purposefully prohibits surrogate advertising along with laying down the conditions for deciding whether an advertisement is an indirect advertisement or not.

FRAMEWORK CONVENTION ON TOBACCO CONTROL(FCTC)

The convention was ratified by India on 5th February 2004 and the Convention came into force on 27th Feb 2005. The aim of the convention is to protect the present and future generations from the disastrous health, societal, environmental and economic consequences of tobacco consumption and exposure to smoke by tobacco by providing a framework for tobacco control measures.

Article 13 of the Convention is known as Tobacco advertising, promotion, and sponsorship. This article recognizes and realizes the fact that a comprehensive ban is necessary and needful. The framework gives the parties the freedom to introduce a comprehensive law banning all tobacco advertising, promotion, and sponsorship.

LEGAL PERSPECTIVE OF SURROGATE ADVERTISING IN INDIA

In the year 2008, the Government banned surrogate advertising of liquor companies in print, electronic and outdoor media. However, in the year 2009, the I&B Ministry issued a notification amending the Rule to allow advertisements of products that shared a brand name or logo with any tobacco or liquor product with the conditions mentioned above too. The conditions are common in many rules and conventions are as follows: The advertisement in visual means or in storyboard must only depict the product meant to be advertised and not the prohibited products in any form or manner, the advertisement must not make any kind of, express or implied reference to prohibited products, the advertisement must not contain any terms or phrases leading to promotion of the prohibited products, the advertisement must keep away from using the specific colors or layout and presentations associated with promotion of the prohibited products and the advertisement must not use circumstantial promotion typically used for promotion of prohibited products when advertising the other products.

In 2014, a social activist filed a PIL in the Delhi High Court to seek a ban on surrogate advertisements. She argued that the Cable Television Network Rules of 1994 must require the conditions that all advertisements found to be genuine and honest extensions by the Ministry of Information and Broadcasting must be reviewed and certified by the CBFC. This PIL was later withdrawn was reasoned unknown. It is evident from the aforementioned existing laws and regulations that any direct or indirect advertising of the prohibited products is restricted in India.[5]

While a Government of the year 2009 (Feb, 27) allows advertisements of products that share a brand name or logo with any tobacco or liquor product but at the same time it also mentions that no direct or indirect reference could be made to the prohibited products in any form.

NEEDED MEASURES TO COMBAT SURROGATE ADVERTISING

  1. It is essential to make clear and unambiguous transparent laws banning surrogate advertisements for different products under a single brand name.
  2. It is important to create consumer awareness programmers to help people understand the evil impacts of this kind of advertisement.
  3. More power should be provided to the Advertising Standards Council of India to encourage it to take action against false and misleading advertisements and keep an observance over clever evasion of the law.
  4. It is needful that a mechanism for the effective implementation of international and national regulations be established.
  5. NGOs such as HRIDAY or Health-related information dissemination amongst youth and SHAN or Student Health Action Network led campaigns appealing the Government for a comprehensive and wide ban on tobacco advertising. The role of NGOs in combating the ills of surrogate advertising should be given recognition and they should be given more power to work on such issues.[6]

CONCLUSION

In my conclusion, I would like to state that these substances are a subject in the State List under the Seventh Schedule of the Constitution of India. Therefore, the laws governing them vary from state to state. Liquor in India can be found almost anywhere and everywhere from liquor stores to restaurants to hotels, bars, and clubs. Cigarettes and tobacco are sold in every little roadside shop. The easy availability of alcohol, tobacco, and cigarettes is another reason for increased substance abuse in the country from the past many decades. Alcohol and cigarettes have become more of a social luxury, a symbol of high class and hence, along with the lower classes the higher and educated classes also enjoy and feel a sense of pride in the consumption of these things. The legal drinking age varies from state to state. Where in some states it is 18 or 21, in others it is 25. Alcohol is banned in states like Nagaland, Gujarat, in Lakshadweep Islands and most recently in Bihar but despite restrictions and various laws in the country, the percentage of people who consume it in the country had been on the rise.

These substances are slow poison and it does nothing but ruin lives. It feels good at first and you start to get in a grip of it, you feel good as you start to fit in with the high class as you drink and smoke regularly in clubs, late-night parties and in social gatherings and it does not seem to be a very big deal or wrong at all. Everyone’s life has problems, small or big, doesn’t matter but when you use these substances on a regular basis and you face some tensions or stress in your life, the consumption of these substances tends to increase and slowly the victim loses control over it. That’s when it becomes a real problem. Substance abuse can turn your most loved person into someone you can start hating, it can turn even the most perfect of relationships sour and it gives rise to all the negative emotions one can think of like pain, anger, helplessness, fear, anxiety and it tests once patience and cool.

Hence, I feel the control of these substances must be taken in control by the center and banned once and for all. Not just banned, it must be taken care of by the center that there is no consumption of these substances. The Centre must take strict actions to remove the production, sale, and consumption of these substances from the country and ban surrogate advertising too.

Substance abuse is not just a physical disease, it is a disease that brings out all the mental tensions a person can have. It does affect the victim in most of the ways but when it comes to mental tension then more than the person itself, the sufferer is the victim’s family and friends, people who are really close to the alcoholic. They are the ones on whom the mental tensions are inflicted upon the most, the ones who are looked down upon by many in the society.


[1]SharbaniRaut, Surrogate Advertisements In India, http://www.mondaq.com/india/x/606974/advertising+marketing+branding/CROSS+BORDER+INSOLVENCY+A+NEW+REGIME.

[2]SharbaniRaut, Surrogate Advertisements In India, http://www.mondaq.com/india/x/606974/advertising+marketing+branding/CROSS+BORDER+INSOLVENCY+A+NEW+REGIME.

[3]SharbaniRaut, Surrogate Advertisements In India, http://www.mondaq.com/india/x/606974/advertising+marketing+branding/CROSS+BORDER+INSOLVENCY+A+NEW+REGIME.

[4]SharbaniRaut, Surrogate Advertisements In India, http://www.mondaq.com/india/x/606974/advertising+marketing+branding/CROSS+BORDER+INSOLVENCY+A+NEW+REGIME.

[5]SharbaniRaut, Surrogate Advertisements In India, http://www.mondaq.com/india/x/606974/advertising+marketing+branding/CROSS+BORDER+INSOLVENCY+A+NEW+REGIME.

[6]SharbaniRaut, Surrogate Advertisements In India, http://www.mondaq.com/india/x/606974/advertising+marketing+branding/CROSS+BORDER+INSOLVENCY+A+NEW+REGIME.

MERGERS AND ACQUISITION IN TELECOM SECTOR IN INDIA – NAMAN

ISSN: 2581-8465

MERGERS AND ACQUISITION IN TELECOM SECTOR IN INDIA

Author: Mr. Naman 

Maharashtra National Law University

Abstract

With the population increasing day by day, there seems to be a need for more and more development. As a result, there are more and more companies and businesses coming up lately. Some companies function singularly until its existence but some companies officially join another company and combine to form a single unit. This single unit formed from two or more different companies then works as another unit as a whole. The telecom sector of our country is also increasing day by day. With the increasing population, the demands in the telecom sector have also increased. Earlier there used to one old fashioned phone in one society or colony for use by all but in today’s era, a child even of 14 years of age is given a mobile phone and even the lower or poor class can afford a mobile phone too. Today mobile phones have been a necessity more than a luxury where we can keep in touch with our near ones easily. Mergers and Acquisitions are seen even in this sector of the country.

MERGERS AND ACQUISITIONS

Mergers and Acquisitions are part of the strategic working of any business or working group. It involves the joining of two businesses with the object to increase market share and profits and to have an influential impact in the industry. Mergers and Acquisitions are complicated processes that require preparing, analysis and deliberation. There are a lot of parties who might be affected by a merger or an acquisition but before a deal is finalized, all parties need to be taken into consideration, and their concerns should be addressed, and all possible hurdles that can be avoided must be avoided.

‘Mergers and Acquisitions’ is a technical term used to define the consolidation of two or more companies. When two companies are combined to form one unit, it is known as merger, while an acquisition refers to the buying of one company by another one, which means that no new company is formed, only one company has been absorbed into another. Mergers and Acquisitions are an important component of strategic management, which comes under the head of corporate finance. The subject concerns buying, selling, dividing and combining various companies. It is a type of restructuring in order to have rapid growth and increase profitability.[1]

TYPES OF MERGERS

  1. A horizontal merger is a merger that happens when the two companies are in the same sector of business, which means they are competitors. A horizontal merger happens between two companies who practice in the same line of business and decide to merge their companies into one for better efficiency and increased profits. Instances include Disney merging with LucasFilm.
  2. A vertical merger is a merger which happens when two companies are in the same line of production, but the stages of production in which they are involved are different. Instances include Microsoft buying out Nokia to support its software and provide the necessary hardware for the smartphone.
  3. Conglomerate merger happens when the two companies are in a completely different line of business but still decide to merge for reasons specific to them and the merger. Instances include Berkshire Hathaway acquired Lubrizol. This kind of merger occurs mostly in order to diversify and spread the risks.

PARTIES IN AN ACQUISITION

The parties include the target company and the acquirer company. The target corporation is the company that is being acquired and the acquirer corporation is the company that acquires the target company.

DIFFERENCE BETWEEN A MERGER AND ACQUISITION

The major difference between a merger and an acquisition is that a merger is a form of legal joining of two companies, which are formed into a single entity. An acquisition happens when one company is totally absorbed into another company, which means that the company that is brought by another company continues to exist. In recent years, the distinction between the two has started blurring too much as companies have started doing joint ventures a lot lately. Sometimes the acquirer of a company wants to keep the name of the acquired company because of the goodwill attached to it.[2]

INDIAN TELECOMMUNICATIONS INDUSTRY

Introduction[3]

India is currently ranked at the world’s second-largest telecommunications market with more than 1.20 billion subscribers and has shown strong growth in the past one and a half decades. The Indian mobile industry is growing fiercely and will contribute to India’s Gross Domestic Product (GDP). This is according to a report which was formed by GSM Association (GSMA) in association and consultation with the Boston Consulting Group (BCG). As of January 2019, India witnessed growth in app downloads by 165% in the past two years. The government has made the easy market access to the telecom types of machinery and a just framework that is regulatory in nature and has ensured the availability of telecom services to consumer at affordable rates. The deregulation of Foreign Direct Investment (FDI) rules has made the telecom sector one of the fastest-growing sectors in the country and a huge means of employment opportunity generator in the country too.

Market Size

India with 604.21 million internet subscribers, as of December 2018, ranks as the world’s second-largest market when it comes to total internet users. India is also the world’s second-largest telecommunications market, with its subscriber base of 1,183.51 million as of March 2019. Moreover, in the year 2017, India surpassed the USA to become the second-largest market when it comes to a number of app downloads. The country remained the world’s fastest-growing market for Google Play downloads in the year 2018. Over the next five years, an increase in mobile-phone penetration and a decline in data costs will lead to an added number of 500 million new internet users in India, creating opportunities for new businesses.

Investment/Major development

Moving parallel with the daily increasing subscriber base, there have been a lot of investments and developments in the telecom sector. FDI inflows into the telecom sector during April 2000 – March 2019 came up to a total of US$ 32.82 billion, according to the data released by the Department for Promotion of Industry and Internal Trade (DPI).

Some of the developments in the recent past

During the first 3 months of 2018, India became the world’s fastest-growing market for mobile applications. The country was said to be the world’s fastest-growing market for Google Play downloads in the year 2018. Bharti Airtel launched 6,000 new sites in Gujarat in 2018-19. The number of mobile wallet transactions increased by 5 percent to 325.28 million in July 2018. BSNL is expected to launch its 5G services by the year 2020. Vodafone India and Idea Cellular have merged to become India’s largest telecom company in September 2018.

Government Initiatives

The government has fast-tracked reforms in the telecom sector and continues to provide room for growth for telecom companies. Some of the other major initiatives taken by the government are as follows: The Government of India came out with a new policy known as the National Telecom Policy 2018 the object of which was the vision of attracting investments with the value of US$ 100 billion by the year 2022. The Department of Information Technology envisages to set up over 1 million internet-enabled common service centers across the country as per the National e-Governance Plan, FDI cap in the telecom sector has been increased to 100 percent from the earlier 74 percent, The Government of India has introduced Digital India program under which all the sectors will be connected through internet.

POPULAR VODAFONE AND IDEA MERGER MERGERS AND ACQUISITIONS IN THE TELECOM SECTOR

In March 2017, Idea and Vodafone India announced that their respective boards had approved the merger of both the companies. The merger got approval from the Department of Telecommunications in July the following year. In August the same year, National Company Law Tribunal gave the final nod for the merger. The merger was completed on the last date of August 2018, and the newly merged entity named as Vodafone Idea Ltd was created into a single unit. The merger led to the formation of the largest telecom company in India by subscribers and by revenue too. As per the terms of the deals, the Vodafone Group holds a 45.2% stake in the combined entity, the Aditya Birla Group holds 26% and the remaining shares will be held by the general public. The chairman now will be Kumar Mangalam Birla.

Vodafone Idea Limited headquartered in Maharashtra is a pan-India integrated GSM operator offering 2G, 3G, and 4G VoLTE mobile services under two brands named now Vodafone and Idea. Vodafone Idea also provides services like Mobile payments, IoT, enterprise offerings and entertainment. As of June 2019, Vodafone Idea became the sixth largest mobile telecommunications network in the world. Vodafone’s Idea has a network spread over 340,000 sites. Vodafone India’s merger with Idea Cellular led them to be renamed as Vodafone Idea Limited.

Importance of the Merger in the telecom sector for the Consumers[4]

The merger holds importance for the consumers also.

1. The Indian telecom industry would see the domination of three top telecom companies: Bharti Airtel, Jio and Vodafone-Idea, out of which the domination of Vodafone-Idea would be the largest.

2. The process of branding will be on an individual basis for both the companies that have been found to have a complementary nature with respect to each other.

Impact of Merger in Telecom Industry on the telecom industry

Several other implications that this merger will bring forth on the telecom industry include:

1. There can be initiatives based on the renewal of price discipline for the disruptive entry by Jio has caused some serious misbalance

2. The poor financial health of the telecom sector can be observed and through such mergers, there will be the inclusion of health and life since India is the fastest-growing market in terms of the subscriber base.

3. The deal saved both the telecom companies from selling off their business which was being planned initially and which would have directly impacted the quality of services being provided by different players in the industry.

The merger will definitely speed up the pace of the telecom sector. It has also been found that the savings, synergies and also the spectrum will have a significant impact on the growth. There will be saving of more than 60 percent of the cost of the operation and this will help and aid in improving the quality and performance of the service through investments from the saved money.

Motives for M&A in the Telecom Sector[5]

1.      Foreign Players are willing to enter India as India is a big market for telecom and hence, has always attracted the attention of many foreign players. The foreign players have used mergers and acquisitions means to expand its footprints in India since ages.

2.      Inorganic Growth of Subscribers was another motive. The telecom sector in India is quite competitive and the big companies are also eager to acquire the customers of smaller companies as the market is getting saturated.

3.      The rapid change in technology is also a motive for mergers and acquisitions in the sector. The telecom sector has witnessed a rapid change in technology from 2Gto 4G and the upcoming 5G. So the firms are going for mergers and acquisitions.

4.      The acquisition of Brand Value is a motive as the brand name plays an important role in the Indian Telecom Industry. Smaller firms can benefit a lot by merging with bigger names and earn goodwill.

5.      Limited Spectrum is another problem turning it into a motive. India is divided into 22 circles and each circle has a limited amount of spectrum to be allocated to different players in each of the technology from 2G to 4G. So in order to grow, it is important to acquire spectrums of other players and mergers &acquisitions are an easy means to achieve this.

6.      The coming of Reliance Jio in the telecom sector

After Reliance JioInfocom Ltd. started services in the year 2016, giving free voice calls for a lifetime and 3 months of free data services, mergers and acquisitions had become unavoidable in India’s telecom industry. Just 3 days after the Idea-Vodafone merger was declared, Bharti Airtel decided to buy Tikona Digital Networks Pvt.Ltd’s 4G business, and it’s broadband wireless access spectrum in 5 telecom circles, for Rs1,600 crore.

LEGAL FRAMEWORK RELATING M&A IN THE TELECOM SECTOR

  1. National Telecom Policy formed in 2012 has made M&A in Telecom Service Sector simpler while ensuring adequate competition and allowing 100% FDI.
  2. The merger in the case of licenses shall be done for the respective service category. Access to service license allows the provision of internet service and so the merger of ISP license with services license shall also be permitted.
  3. In a service area, the market share of the merged entity should not be more than 50%. If it is more, it has to reduce it below 50% in an annum.
  4. The total spectrum held by the merged entity should not be more than 50% in a service area. If it is excess, it has to be surrendered within an annum.
  5. The corporation which acquires will have to pay the difference between the market price determined in the auction & the administrative price if an acquired company has got spectrum after paying the administrative price.
  6. If due to a merger or transfer of license in any service area business, corporation or entity becomes an important market power, then TRAI’s Telecommunication Act of the year 2002 will come into place.

Airtel Telenor Deal: A closer analysis

Telenor India announced a merger with Bharti Airtel in April 2018. This will boost the base of the subscribers of Airtel along with the 4G spectrum footprint. After the merger, Airtel’s footprint will be boosted with the addition of 43.4 MHz spectrum in the 1800 MHz band in seven circles (Andhra Pradesh, Bihar, Maharashtra, Gujarat, UP (East), UP (West) and Assam).

The Department of Telecom on April 3 had asked Bharti Airtel to submit Rs 1,700 crore as the bank guarantee before approving its merger with Telenor India. The guarantee included a one-time spectrum charge of Rs 1,499 crore for the radio waves allocated to Airtel without auction and over Rs 200 crore for spectrum payment which Telenor has to make. DoT has also asked for an undertaking from Airtel that the company shall be liable to any dues if pending with respect to the merger of the two companies. It will also be liable for paying all demands which may be raised by any wing of the department for Telenor India. DoT also directed Airtel to lessen its market share in the Bihar telecom circle on the foundation of money earned from telecom services known as Adjusted Gross Revenue. DoT asked Airtel to lessen the limit to not more than 50% within one year after the merger was approved. After this, an affidavit of no objection concerning the merger was issued and their affidavit was moved to the National Company Law Tribunal commonly known as NCLT. NCLT approved the merger of Airtel and Telenor India effectively.

Telecom companies from time to time have to furnish bank guarantees to meet their contractual commitments with the licensor, which is the DoT. A failure in meeting the requirement of fees causes the department to encash the bank guarantee as a tool to penalize the defaulter. Typically, a bank guarantee is issued by a bank or any other money lending institution. This institution promises to pay the sum of money in case of default by the defaulter.[6]

CONCLUSION

I would like to conclude by saying that Mergers and Acquisitions are an essential part and portion of the strategic working of any business or working group. It involves the joining of two businesses with the object to increase market share and profits and to have an influential impact in the industry. Mergers and Acquisitions are complicated processes that require preparing, analysis and deliberation. There are a lot of parties who might be affected by a merger or an acquisition but before a deal is finalized, all parties need to be taken into consideration, and their concerns should be addressed, and all possible hurdles that can be avoided must be avoided. The telecom sector of our country is also increasing day by day. With the increasing population, the demands in the telecom sector have also increased. Earlier there used to one old fashioned phone in one society or colony for use by all but in today’s era, a child even of 14 years of age is given a mobile phone and even the lower or poor class can afford a mobile phone too. Today mobile phones have been a necessity more than a luxury where we can keep in touch with our near ones easily. Mergers and Acquisitions are seen even in this sector of the country. Developmental prospects can be innumerable in nature but the huge amount of development In the Telecom sector is causing disruptions in the lives of the everyday people. Therefore, we must try not to depend so much on the telecom industry.


[1]Martin, Mergers and Acquisitions: A complete guide, https://www.cleverism.com/mergers-and-acquisitions-complete-guide/.

[2]Martin, Mergers and Acquisitions: A complete guide, https://www.cleverism.com/mergers-and-acquisitions-complete-guide/.

[3] IBEF, Indian Telecommunications Industry Reporthttps://www.ibef.org/industry/telecommunications.aspx

[4]Nidhi Gupta, Idea and Vodafone Merger: A saga of becoming India’s Largest Telecom Company, https://www.jagranjosh.com/articles/idea-and-vodafone-merger-a-saga-of-becoming-indias-largest-telecom-company-1490598696-1.

[5]Nidhi Gupta, Idea and Vodafone Merger: A saga of becoming India’s Largest Telecom Company, https://www.jagranjosh.com/articles/idea-and-vodafone-merger-a-saga-of-becoming-indias-largest-telecom-company-1490598696-1.

[6]Anubhav Pandey, A complete guide to M & A in the Telecom Sector, https://blog.ipleaders.in/ma-in-the-telecom-sector/.

MARITAL RAPE- LET THE SILENCE SPEAK: SHIVANGI VERMA

ISSN: 2581-8465

Marital Rape: Let the Silence Speak

Author: Shivangi  Verma[1]

UPES, Dehradun

Abstract

This paper constitutes a thorough review of marital rape. There is an emergence of a special law to deal with the concept of marital rape in India, which should not only be taken as a national issue but should be considered an international issue. In the 21st century where women are touching the sky along with men, they are still treated as the property of the husband. Women, in general, have been provided with strong penal laws to fight for heinous crimes like rape and molestation against them by any person then why to refrain them to have some protection against their own husband just because they entered into a wedlock with them having certain beliefs. There should be no justification for exemption from marital rape looking at the current scenario of married women. Victims who often withstand marital rape avail themselves of verbal means of non-compliance. However, many victims are not even able to hold out against the sexual aggression of their spouse and as a result, they suffer from posttraumatic stress disorder (PTSD), gynecological issues, depression, and anxiety. This paper aims to criminalize such a crime by getting its recognition in law by having a clear discretion between consensual sex and rape irrespective of the relation between the two people. This paper makes it very clear that a woman, irrespective of her relationship status, should have the right to protect herself and no matter what, her body belongs to her and she should have the right to consent or refuse any such action that involves herself or her body into it.

INTRODUCTION

“The day will come when men will recognize woman as his peer, not only at the fireside but in councils of the nation. Then, and not until then, will there be the perfect comradeship, the ideal union between the sexes that shall result in the highest development of the race.”                        

– Susan B. Anthony

VIOLENCE IS a coercive mechanism to assert one’s will over another, in order to prove or feel a sense of power. Defined in plain terms – “Violence” is destruction, suffering or death, which is deliberately inflicted for the achievement of a purpose, which is political in nature.[2]

Violence against women is a manifestation of historic power-play struggles between men and women, which has led to domination over and discrimination against women by men and to the prevention of the full advancement of women, and that violence against women is one of the crucial social mechanisms by which women are forced into a subordinate position compared with men.[3]

Section 375 of the Indian Penal code defines rape. It means, rape is unlawful sexual intercourse between a man and a woman without the consent of women or against her will under any of the circumstances enumerated under the section will amount to rape.[4]

Section 375 of the Indian Penal Code, defines what is “Rape” and Section 376 provides for punishment for the offence of “Rape‟. But, married women do not come in the ambit of its definition of rape. Section 375 has an exception[5] which directly pitches the married women of age more than 15 years out of this ambit. Exception 2 thereto exempts a man who rapes his wife if she is not under fifteen years of age. This colonial-era provision stands in stark contrast with other provisions of the IPC, as well as several progressive legislation that has followed since. The exception to Section 375 states that non-consensual sexual intercourse by a man with his own wife if she is over fifteen years, does not amount to rape. It thus keeps outside the ambit of rape a coercive and non-consensual sexual intercourse by a husband with his wife above fifteen years of age and thereby allows a husband to exercise with impunity, his marital right of non-consensual or undesired intercourse with his wife.[6]

MARITAL RAPE-MEANING

Marital rape refers to the sexual intercourse between a couple, who are legally husband and wife, where sexual intercourse took place without the consent of the woman or man. This wedlock gives a right to the husband and wife to have legal consummation in their marriage. Consummation between husband and wife is said to be a necessary imperative after the marriage. Marriage gives legal rights to men and women to have a legal sexual relationship and have children.

Marriage is an impeachable bond in which the man and woman vow each other to live in happiness and pain together and by understanding each other’s weaknesses, flaws, and strengths. This should not permit the man to forcefully have sex with his wife. Any kind of sexual relation whether in the marriage or without marriage, be should solely be based on the consent of the two and not be treated as obligation on either of the spouses. Both the spouse’s husband and wife should have the liberty to refuse to have sex if they don’t feel so and no one should be able to compel them to do so. For this to happen the Indian law system should introduce the law with the concept of marital rape. It has always been a debatable issue and to date hasn’t achieved any conclusion.

RAPE AND MARITAL RAPE

To get the complications of marital rape it is very important to understand the difference between terms rape and marital rape.

The word “rape” is derived from the Latin term rapio, which means “to seize”. Rape literally means a forcible seizure. It means the ravishment of women against her will or without her consent or with her consent obtained by force, fear or fraud or the carnal knowledge of women by force against her will.[7]

According to Morton Hunt, “The typical marital rapist is a man who still believes that husbands are supposed to “rule” their wives. This extends, he feels, to sexual matters: when he wants her, she should be glad, or at least willing; if she isn’t, he has the right to force her. But in forcing her he gains far more than a few minutes of sexual pleasure. He humbles her and reasserts, in the most emotionally powerful way possible, that he is the ruler and she is the subject”.[8]

Marital rape is when a spouse rapes the other spouse. The court in a case said “Defense counsel rightly argued that IPC does not recognize the concept of marital rape. If the complainant was a legally wedded wife of accused, the sexual intercourse with her by accused would not constitute offence of rape even if it was by force or against her wishes”.[9]

TYPES OF MARITAL RAPE

The following three kinds of marital rape are identified by legal scholars as generally prevalent in society[10] :-

  • Battering rape: In battering rapes, women experience both physical and sexual violence in the relationship and they experience this violence in various ways. Some are battered during the sexual violence, or the rape may follow a physically violent episode where the husband wants to make up and coerces his wife to have sex against her will. The majority of marital rape victims fall under this category.
  • Force-only rape: In what is called force-only rape, husbands use only the amount of force necessary to coerce their wives; battering may not be characteristic of these relationships. The assaults are typically after the woman has refused sexual intercourse.
  • Obsessive rape: Other women experience what has been labeled sadistic or obsessive rape; these assaults involve torture and/or perverse sexual acts and are often physically violent.

THE PRESENT LEGAL POSITION IN INDIA

The amendment in 2013[11] has done away with this clause but at the same time has not recognized the concept of marital rape and has chosen to continue with the earlier legal approach. It would be pertinent to point out that the Justice Verma Committee Report[12] has recommended that the marital rape exemption in the IPC should be withdrawn.

The peculiarity of Indian law is the adoption of the principle of primacy and supremacy of husband’s right over that of the wife, even when she is well below the legal age of marriage.[13]

The court held in Haree Mohan Mythee’s case[14] that the husband does not have the absolute right to enjoy the person of his wife without regard to the question of safety of her. As per this decision, the only circumstances where the law recognizes the encroachment upon husband’s absolute right to sexual intercourse is when it becomes extremely dangerous to women due to some physical illness, etc. and grave consequences like death may follow.[15]

In the Kerala High Court, Sree Kumar v. Pearly Karun[16], it was observed that the wife does not live separately with the husband under the Judicial separation and being subject to sexual intercourse without her will the act does not amount to rape. Hence, it was said that the husband was not found to be guilty of raping his wife though he was de facto guilty of doing or committing the act.

Thus, under Indian law, no effort has been made to give even a veneer of protection to the right of a married woman to her physical or sexual autonomy.[17] In the existing scenario, there is hardly any feeble hope of future changes as far as recognition of marital rape of adult women is concerned and even in the case of minor wives between 15 – 18 years of age, the offence is treated for less seriously.[18]

In Saretha V. T. Venkata Subbaih[19] case, it was held that rights and duties in a marriage, is like creation and dissolution and not the term of private contract between two individuals. The right to privacy is not lost by the marital Association.

In 156th Law Commission Report, the Commission expressed its reluctance to raise the age for wife from 15 years to 18 years in the Exception to S-375 IPC[20], without assigning any reasons in particular. In the 172nd Law Commission Report, the Commission found the deletion of the exception to Section 375 IPC, unnecessary as it may amount to excessive interference with the marital relationship.[21]

FOREIGN LAWS ON MARITAL RAPE

The United Nations population fund states that more than 2/3rd of the married women in India, who are aged from 15 to 50, have been beaten, raped or forced to provide sex with him. In the year 2005, nearly more than 6500 cases were recorded where women were murdered by their husbands or by their husband’s family.[22]

Marital rape in the United States, in the year 2006 United Nations Secretary-General analyzed in-depth study on all forms of violence against women which is marital rape. It stated that in at least 53 countries rape by husband is not considered to be an offence. In the United States, Marital rape has become much more criminalized. In many countries the marital rape laws are ambiguous and they are not clear that the person can be prosecuted for a marital rape or not. Where in the absence of the law it may be possible to bring a prosecution for acts of forced sexual intercourse. In countries where the laws on rape exclude husband where the countries have inherited the Penal Code which states that the sexual intercourse by a man with his own wife is not rape.[23]

WHY IS MARITAL RAPE STILL NOT RECOGNIZED AS A CRIME

The government today says the cause for marital rape in India is poverty, religious beliefs, social customs and the mindset of Indian society, among other things. As per the latest parliamentary discussions, it seems like the current government led by India’s Bharatiya Janata Party-government, headed by Prime Minister Narendra Modi does not settle to introduce any plans relating to punishments or penalties for marital rape. “It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context,” Haribhai Parathibhai Chaudhary, a minister in India’s Ministry of Home Affairs, said in a written statement to India’s upper house of Parliament. He attributed this to “various factors e.g. level of education/illiteracy, poverty, myriad social customs and values, religious beliefs, the mindset of the society to treat the marriage as a sacrament, etc.”[24]

But contradictory to such statements, the Indian society is drastically changing, a marriage that supports violence should no longer be considered to be sacrosanct. The argument that Indian society is too traditional to criminalize marital rape is baseless and unreasonable; such propaganda should not be taken up by the government. The government should be clear on the agenda they want to promote, on one hand the officials and ministers rant on about gender equality, elimination of gender stereotypes and women empowerment by giving women an opportunity to stand equal to men in all aspects, while on the other hand, they do not give women even the basic rights they deserve. At a time when the world’s most powerful democracies are legalizing same-sex marriage, the world’s largest democracy is doing nothing to help women getting raped by their husbands, hiding behind the veil of tradition. If tradition is the only barometer then Dalits would still be untouchable, temples and high-end jobs would remain out of bounds for many castes. Tradition cannot be used to defend the indefensible. On issues related to human rights, we cannot discriminate against women on the basis of marital status.[25]

CONCLUSION

It has been concluded that Indian laws have miserably failed to provide protection to adults (age of above 15 years) married women. In the era of 21st century where women are touching the sky with men, they are still treated as the property of the husband. By just entering into wedlock with a man she doesn’t consent him to exploit her in whichever way he may want to. This prima facie violates Article 14 and Article 15 of the Indian Constitution. It is the moral duty of the judiciary to protect women against such crime by criminalizing marital rape. The domestic abuser interventions typically focus on the committing of physical abuse and sexual offence goes completely unnoticeable and also they are medically neglected. An aspect which is least bothered in such cases is what impact do these situations leave on their children, they may suffer from depression and trauma too. Children should not be exposed to such marital and sexual violence. Finally, research is also needed on female to male rape because this is also an untouched topic that needs to be discussed.


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[1]Studying in 4th year B-Tech in Computer Science & LL.B. (Hons.) specialization in Cyber law at ‘UPES(university of petroleum and energy studies), Dehradun’;

email- vshivangi61@gmail.com;

Mobile no.- 7060131242

[2] Vandana, Sexual Violence Against Women-Penal Law and Human Rights Perspectives, 3 (2009). Lexis Nexis Butterworths Wadhwa Publishers, Delhi.

[3]The United Nations Declaration on the Elimination of Violence against Women, General Assemble Resolution, December, 1993.

[4] Aman Kumar V. State of Haryana AIR 2004 SC 1497, (2004) 4 SCC 379

[5] 375. Rape.—A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following de­scriptions:—

(First) — Against her will.

(Secondly) —Without her consent.

(Thirdly) — With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

(Fourthly) —With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be law­fully married.

(Fifthly) — With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupe­fying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

(Sixthly) — With or without her consent, when she is under sixteen years of age. Explanation.—Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

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

[6] KI Vibhute, “Rape within Marriage” in India: Revised‟, Indian Bar Review, 2000, Vol 27, P. 167.

[7] Bhupinder Sharma V. State of Himachal Pradesh AIR 2003 SC 4684, (2003) 8 SCC 551

[8]Morton Hunt, “Legal Rape,” Family Circle (January 9, 1979), p. 38.

[9]The Life and Times of an Indian Homemakeravailable at : https://indianhomemaker.wordpress.com/2012/12/04/why-is-forcible-sex-or-lack-of-consent-not-rape/

[10]Gosselin, D.K., Heavy Hands — An Introduction to the Crimes of Domestic Violence (1st Edn., Prentice-Hall Inc., New Jersey, 2000).

[11] The Criminal Law (Amendment) Act no. 13 of 2013.

[12] Justice Verma Committee Report, (2013).

[13] Hindu Marriage Act, 1955, s.5 (iii), prescribes 18 years and 21 years as the legal age for females and males respectively.

[14] (1890) 18 Cal. 49.

[15] Id. at 62. In this case, when eleven years old wife was subjected to forcible sexual intercourse by the husband, she died of vaginal ruptures and profuse bleeding.

[16] 1999 (2) ALT Cri 77, II (1999) DMC 174

[17] 4 Another peculiarity of Indian law is the provision for decree of restitution of conjugal right’s embodied in s. 9, Hindu Marriage Act, 1955. In T. Sareethav. VenkataSubbiah (AIR 1983 AP 356), the Andhra Pradesh High Court declared it unconstitutional and violative of the fundamental right of personal liberty and privacy. But the Apex Court upheld the validity of s. 9, Hindu Marriage Act, 1955 in Saroj Rani v. Sudarshan Kumar (AIR 1984 SC 1562) and totally ignored the effect such a decree can have on an Indian woman, who under the threat of judicial and social pressure and financial dependence may well be forced to go back to the matrimonial house and because of her vulnerable position in it, be forced to have sex and live a life of misery in an atmosphere she obviously abhors.

[18] S. 375, IPC,exception 2: reads as – Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.

The NCW had recommended that the age limit in the Exception to S-375, IPC be raised from 15 years to 18 years

[19]AIR 1983 AP 356

[20] Law Commission of India – 156th Report on The Indian Penal Code, Ministry of Law and Justice, Government of India,161 (August, 1997).

[21] Law Commission of India – 172nd Report on Review of Rape Laws, Ministry of Law and Justice, Government of India, (2000), para 3.1.2.1. However, it was recommended by Sakhi and other women organisations that the exception be deleted. Their reasoning was – where husband causes some physical injury to his wife, he is punishable under the appropriate offence and the fact that he is the husband of the victim is not an extenuating circumstance recognised by law; if so, there is no reason why concession should be made in the matter of offence of rape/sexual assault, where wife happens to be above 15/16 years.

[22] A Study on Marital Rape in the Indian Legal Scenario-G.V. Akshaya and M. Kannappan of Saveetha School of Law.

[23] Supra note 21

[24] Marital Rape: A Crime Undefined available at- https://www.lawctopus.com/academike/marital-rape-a-crime-undefined/

[25] Ibid.

CHANGING THE DIMENSION OF PERSON UNDER DIFFERENT LAW: VINITA KUMARI

ISSN: 2581-8465

Changing the Dimension of Person under Law

Author: Vinita kumari

Central University of South Bihar

Abstract

The dynamic nature of law could not be explained better than in the current scenario when the Indian judicial system has seen a clear shift in concepts as well-settled as the theory of personality. With the recent judgment by the Tripura High Court, it is very evident that the evaluative nature of law has not left even the jurisprudential theories untouched. There have been other instances when the term ‘person’ was interpreted ‘widely’ and ‘in context’, however, the stance of the Supreme Court is still unclear. The paper is a study on such changes and interpretations while examining how welcome a step it would be if those changes were to be accepted as a valid interpretation. This paper tries to analyze the meaning of the term ‘person’ through an examination of questions such as who a person is and what the rights and duties of a person are, while also drawing a relation and/or distinction between natural, juristic and legal persons. Over time, many scholars have come up with different theories of personality; however, when interpreting the word ‘person’ in the context of the Constitution, the interpretation has to be a more cautious one. Any interpretation by the courts would lead to certain consequences which could also develop as a lacuna in existing principles of interpretation and pose difficulty for the judicial system itself. The paper comes up with a critical study of the recent developments in the Indian judicial system with regard to the theory of personality while delineating observatory remarks of how and to what extent the current stance of the courts should be amended.

INTRODUCTION

Society is dynamic in nature and it goes with the concept of “change is the rule of nature”. Every time when society is need of some changes, a new law came into existence. Every rule is based on a person’s need and greed. In layman, a language person has some rights and can sue against violation of their right and duty of the state to protect the right of the person. A person comes from the word personality which means rights and duties bearing unit. The definition of a person has not been changed but many times it has been interpreted and amended. In Indian jurisprudence, the word personality has an exclusive and widened meaning. Humanity and personality have coincided sometime but not the same both have a different meaning. The idea of humanity has been restricted only to human beings whereas personality has technical sense. Personality includes human beings as well as another inanimate object like an animal, trees, etc. Personality has a widened meaning than humanity, it includes human beings, the sense of human, natural person. Scholars have been given the definition of a person; a person can be called as subject and object of rights and liabilities. The paper basically deals with the person includes animals and rights and duties of animals. Tripura High Court and Uttarakhand High Court judgment wore a remarkable presence in the rights and duties of animals. But here, an important question is that animals are a legal person or a natural person. Animals also have fundamental right such as the right to life. Is an animal is a juristic person, a natural person or a legal person. Natural person means human beings, and legal person means beings and things which are treated as persons by law, whereas a juristic person is entities other than human beings on which the law confer as legal subjectivity. But the intrinsic feature of all kinds of person is having rights and duties. Here, I would like to exaggerate the animal’s right and duties. In the Law of Torts human beings are prosecuted for the wrongful act done against the animal but not vice versa. But there is one exception; master has been prosecuted for the wrongful act done by animals under strict liability. Judicial development spot the light in widening the scope of personality. In the cases of the animal where High Court considers the animal as a person and they have right to life whereas to follow the religious beliefs and faith animals were sacrificed on the name of Freedom of conscience and free profession, practice, and propagation of religion (Article:25).

OBJECTIVES OF THE STUDY  

The objective of this paper includes:-

  1. It helps to find out the contextual meaning of the term ’Person’.
  2. To give a clear definition of ‘person’ and what includes person?
  3. It helps to highlight the crime against animals and is an animal’s right to life has been violated or not?
  4. Right to life v/s freedom to profess religious beliefs.

METHODOLOGY

My study has been based on primary and secondary data. Primary data has been collected after, my recent visit of the temple in my locality where animal sacrifice is considered to be the primary religious belief and rituals follows since time immemorial and the sacrifice of an animal in ‘Islam’. I have collected the secondary data from the Books, internet, Acts, and judgments of the honorable courts.

ORIGIN AND BACKGROUND

The concept of personality has been given in the historical laws such as Roman law, Greek law, and Hindu law.  ‘Personality’ is a vague and wide term and it has been derived from the Greek word persona. Persona means a mask worn by actors while playing a different role in a drama. Under Roman law ‘personality’ has not much significant because the family was considered to be
 In Roman law, the term had a specialized meaning, and it was synonymous with ‘caput’ means status. [i]Thus, a slave had an imperfect persona. In a later period, it was denoted as a being or an entity capable of sustaining legal rights and duties. In ancient Roman society, there was no problem of personality as the ‘family’ was the basic unit of society and not the individual. The family consisted of a number of individuals, but all the powers were concentrated with ‘pater- familias’ means the head of the family. If a head of the family dies, and there is an interval between his death and devolution of property on the heir who accepted an inheritance, the property will vest in a person during the interval. [1]This was called hereditas jacens which was developed by the Romans. The hereditas jacens is considered by some scholars as similar to legal personality. Hereditas jacens means the inheritance during the interval between the death of the ancestor and the acceptance of the inheritance by the heir. Some scholars are not ready to agree with the views that it has some connection with the present doctrine of legal personality, even if it is there, it may be in a very limited sense. There was a provision in Roman law that other institutions or groups who had certain rights and duties were capable to exercise their legal rights through a representative.

Under Greek law, an animal or tree was tried in court for harm or death did to a human being. It can be said on the basis of this practice that these objects were subject to duties even though they may not possesses rights. This is an element of the attribution of personality.

Under early English law, there are some incidences in it had found that an animal or tress or inanimate objects had been tried in Court under law. The trees and animals were subject to duty but not rights. After 1846, this system has modified and it was made clear that animals or tresses are capable of possessing rights and duties; therefore, there is no question of personality.[2]

WHO IS A PERSON?

A person has been defined that a body that is corporate with rights and duties. Many scholars came with the theory of personality. Some definitions are as such:

Salmond: – A person is any being whom the law regards as capable of rights and duties. Any being that is so capable is a person whether a human being or not, and no being that is so capable is a person even though be a man.

Savigny: – A person as the subject or bearer of right.

Gray: – A person is an entity to which rights and duties may be attributed.

Austin: – according to Austin, the term “person” includes physical or natural person including every being which can be deemed human.[3]

The definition given by the scholars was satisfactory or not. Is it satisfying the demand for the term ‘personality’? It must be a situation of conflict.  But after the recent development in the Indian judicial system, the definition of person has been changed. One side on the philosophic sense personality means the rational foundation of a human being whereas on the other hand the personality of a human being means possession of certain rights and duties.  If any human beings have no right at all then they cannot be considered as a person in the eyes of law.  The animal has the right to life which is embodied under Article 21 of the Indian Constitution (Shubhas Bhattarjee v/s State of Tripura). These rights are expressly given for the person. Person construes animals, corporate sole, trees, and other things. This widened scope of personality is the result of the modern trend of the judicial system. Personality starts with birth the birth of the person. It means that when a person takes birth, he is considered to be a person in the eyes of law. The company is a juristic person having a separate legal entity (Soloman v/s Soloman).[4] A company has been considered to be born since the date of the registration of the company.

KINDS OF PERSON

  1. Natural Person: – A natural person is living human beings such as men, women, impotent, etc. natural person are human beings on whom the law gives the personality of the basis of reality. It means that not all the natural people are legal people because in ancient times where there was a concept of slavery but that time period salves were not considered to be legal persons.
  2. Legal person: – legal persons are artificial beings to whom law attributes personality by way of fiction which does not exist in fact. In other words, a legal person is any subject matter other than a human being to which law attributes personality. For example corporate, university, schools, etc. legal persons are the rights and duties bearing units or bodies.
  3. Juristic Person: – A juristic person is a bearer of rights and duties that is not a natural person but which is given legal personality by the law. The concept of juristic personality is not absolute.  Juristic persons are bodies other than the human being which is the matter of legal subjectivity. [5]

Difference between Natural Person and Legal Person

  • Natural Person means human being whereas; Legal Person can be a being – real or imaginary.
  • Natural Person has the characteristics of the power of thought, speech, and choice. A legal person is any being whom the law regards as capable of rights and duties.
  • Natural Person is a real and living person. Legal persons can be ‘fictitious’, ‘juristic’, ‘artificial’ or ‘moral’. Slaves are considered natural persons. In ancient law, slaves are not recognized as persons.
  • A layman does not recognize idiot, company, corporation, idol etc as persons. According to Law, idiots, dead men, unborn persons, corporations, companies, idols etc are treated as legal persons.
  • The only natural persons are human beings. But, there are several categories of legal persons recognized by law.
  •  Natural Person is also a Legal person. “Although all legal personality involves personification, the converse is not true”. Natural Persons perform their functions and also perform the functions of legal persons. The legal persons perform their functions through natural persons only.
  • Man is the only natural person. There are different varieties of legal persons viz. Corporations, Companies, Universities, Societies, and President etc.
  • There is division in regard to types of natural persons. There are two classes of corporations – Corporate Sole and Corporate Aggregate.
  • A natural person can live for a limited period of time. i.e Till his death. Legal persons can life [ii]an eternal life. For example, the post of the President of the United States of America is a corporation, which was created some three hundred years ago.[6]
  • Relation between natural person, legal and juristic person: – Natural person is human beings they have certain rights which incorporated with the human from the birth and duties to protect the right of others. A legal person is a person who is the unit of legal subjectivity whereas juristic persons are the person in the eyes of law it means that they are incorporated bodies. The concept of a person based on the legal maxim ‘actio personalis moritur cum persona’ it means ‘a personal right of a person dies with the person’. A natural person right has been called as a human right, whereas legal person right are right given under the eyes of the law. Origin of legal and juristic person is almost similar that is, both are created by human beings. Juristic person is basically the creation of judicial interpretation. The relation between legal, natural and juristic person is the unit of right and duties. For example natural person and legal person both have right to freedom of speech and expression like new papers newspaper have right to publish and write anything even though its coincide against the thought of the government but the press is organization made by human being and group of individual.  Legal person and natural person both have the right to life and freedom of speech and expression.
  • Laws interpreted in various cases for the finding of the definition of person.
  • Article 21, of the deals with the right to life:-

“No person shall be deprived of his life or personal liberty except according to the procedure established by law.”[7]

Here a person does mean only human beings or natural person. A person includes animals, trees, temples, unborn children and the mosque, etc.  The right to life has not been amended but interpreted by the court. In the recent judgment of Tripura and Uttarakhand High court it would, evident that animals have also the right to life and their right to life cannot be violated due to exercise of someone’s right to freedom of professing religious beliefs. Shubhas Bhattatjee V/s State of Tripura, High Court examined and interprets the article 21 and 25 of Indian constitution. Under this case, the leading contention of the plaintiff is that the two biggest temples of Tripura that, Tripureshwari Devi temple and Chatur devata temple were a sacrifice of animals construe primary religious belief of people in the name of freedom to profess their religious freedom (Article 25(1)).

  • Article 25(1) of the Indian constitution states that Freedom of conscience and free profession, practice and propagation of religion

(1) Subject to public order, morality, and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.[8]

When we go with, the literal interpretation of Article 25(1) of the Indian Constitution, freedom to profess religious beliefs and rituals but subject to certain kinds of restrictions or exceptions such as health, morality and public order. Is that satisfying the act of Tripura people or the people who follow the religious belief to sacrifice the animal? On the one aspect, it has been declared that the person includes animal and person have the right to life and other side sacrifices of an animal on the name of freedom of religious belief. As we know that the article21 is applicable to the person and 25 deals with the right of people whereas the concept of person widened than people. A person deals with human beings as well as artificial beings and other living creatures. Article 25(1) of the Indian constitution have subject to certain exception such as public order, morality, and health. The animal has been sacrificing many of the temples in India in the name of freedom of religious belief and which would contain the people right. When we sacrifice an animal it would be the violation of the right to life of the animal.  Is that kind of activity of human beings would contain morality and public order. Here morality means the distinction between right and wrong, which would constitute the right and wrong behavior of a person. We cannot ignore the basis of legislation that is morality. Intact in all the school of jurisprudence morality must be contained and almost in the theory of legal personality morality is essential. So, only on the name of exercising the fundamental right of ownership, it will not give the license to violate the right of others. The doctrine of legal personality has been based on the concept of ‘Ubi jus ibi remedium means where there is right there is remedy’. 

  • Article 48 of the Indian constitution dealt with the Directive Principle of state policy of the state and it states that “The State shall endeavor to organize agriculture and animal husbandry on modern and scientific lines and shall, in particular, take steps for preserving and improving the breeds, and prohibiting the slaughter of cows and calves and other milchand draught cattle”.[9] Agriculture and animal husbandry are not narrow concepts but a widened meaning.  Here, agriculture help by an animal not only oxen which used in traditional agricultural concepts but also other animals.
  • Article 48(A) of the constitution deals with the directive principle of state policy. It has also the duty of the citizen to protect the interest of others such as it shall be the duty of every citizen of India to protect the natural environment like the forest, wildlife, etc. It states that:-

 g) to protect and improve the natural to have compassion for the living creature ; (h) to develop the scientific temper, humanism and the spirit of inquiry).[10]  Illustration: – let’s take about another state temple such as Jharkhand, Bihar, U.P and other places temples also follows the tradition of animal sacrifice.

Rights and duties of person

In India, privilege has been given to every citizen to live with liberty. But these rights are enforceable only when another person has some act which he does want to do. Also, the citizens have the duty to protect the rights of another person living in society. Therefore, duty and rights go hand in hand with each other. When there is a breach of duty from one person, there is a breach of the right of another person. In this article, I would like to discuss the jurisprudence of rights and duty and their relationship with each other. The Constitution of India has guaranteed certain rights to the citizens of India which are known as Fundamental Right which is considered to be the most important right. If these rights get violated then the person has the right to move to the Supreme Court of India or The High Court for enforcing rights. Following rights are guaranteed by the Court:-

  1. Right to Equality (Article 14)
  2. Right to freedom (Article 19)
  3. Right against Exploitation (Article 23 and 24)
  4. Right to Freedom of Religion(Article 25)
  5. Right to Life (Article 21)
  6. Right to Constitutional Remedies (Article 32).[11]

As per the definition of a person right of the person is to sue and being sued. This is the basic right of a person.

State of Rajasthan V Union of India[12]:– “In the strict sense, legal rights are correlatives of legal duties and are defined as interests whom the law protects by imposing corresponding duties on others. But in a generic sense, the word ‘right’ is used to mean immunity from the legal power of another, immunity is an exemption from the power of another in the same way as liberty is an exemption from the right of another, Immunity, in short, is no subjection.

  • Duty: – A duty is an obligatory act a person has to perform in favour of another person. If the person has breached his duty and infringed anyone right then he has to suffer consequences that arise from breaching the rights.

Article 51A of the constitution of India guarantees certain duties to every citizen of India.  Article 51 A of the Indian constitution states that “it shall be the duty of every citizen of India”

  • To respect the provisions of Constitution and respect the National Flag and National Anthem;
  • To safeguard the sovereignty and integrity of India;
  • To follow the noble ideals of a national struggle
  • To defend the country and  contribute to national service when called
  • To preserve the national heritage of the country ;
  • To promote and maintain the harmony of brotherhood amongst people of India.
  • To protect the dignity of women
  • To protect the natural habitat and    including forests, lakes, rivers, and wildlife;
  • To protect public property and to avoid violence;
  • To contribute to the development of the nation in all spheres.[13]
  • The relation between rights and duties of person.
  • A Fundamental right is guaranteed to all citizens and is enforceable by the law if any of the Fundamental rights of an individual is violated then the person has the right to move in the court. Therefore,  an individual right to free speech, education, shelter et al are your fundamental rights – impregnable, untouchable and unfettered (subject to reasonable restraints in the interest of national security, public order, decency, morality, etc). Therefore, in the concept of rights, it can be said that they are legally recognized.
  • Fundamental duties, on the other hand, are not legally enforceable. It the duty of the states and individuals to perform their part of duty for the welfare of the society. So the duty to preserve your heritage, to respect national symbols, to keep your surroundings clean is a duty which one cannot have redress against in the Courts but in good faith is expected to follow to ensure a well-functioning society. Therefore, it can be said that the duty is moral in nature, they are no sanction if one does not perform their duty but if the rights are violated then there is the legal sanction of infringing one right of enjoying.[14]

1. Sri Subhas Bhattacharjee V/s State of Tripura: – Uttarakhand High Court declared that “The entire animal kingdom, including, avian and aquatic animals are hereby declared ‘Legal entities’, having corresponding rights, duties, and liabilities of a living person”.[15]

2. Animal Welfare Board of India V/s Nagaraja & Ors:- When the Supreme Court banned the practice of Jallikattu in 2014, it alluded to various sections of the PCA Act, 1960, which addresses unnecessary suffering of animals. Alluding to Section 3 and Section 11, the Hon’ble Court declared that all animal fights incited by humans are illegal, even those carried out under the guise of tradition and culture. The Court also listed various recommendations, among them an overhaul of the penalties and punishments in the PCA Act, 1960, so as to allow it to function effectively as a deterrent in cases related to animal cruelty.[16]

All of these judgments’ have helped to some extent alleviate the suffering endured by hapless animals. However, the recent maiming of Shaktiman the horse, as well as other heinous instances of animal cruelty necessitates the need for urgent reforms to the PCA Act, 1960. 

 CONCLUSION & SUGGESTIONS

After the study of changing the dimension of the person, I reached a conclusion that a person includes human beings, animals, trees, and other beings. A person includes a natural, legal and juristic person. A person does not mean only, those who are born but it includes an incorporated body. Every incorporated body is created by an individual or group of individuals. A person has legal rights and duties. A person has basic rights that are right to sue and be sued. The animal has the right to be protected and also the duty of the state to protect the animal and agricultural husbandry.  Recent developments in the Indian judicial system are being evident for the development in the protection of wildlife and animals. But, these developments are not absolutely. The Apex Court of India rejected the contention of an animal activist who filled PIL against the animal sacrifice on religious beliefs. We cannot say that animals have got the right to life absolutely. According to, my study, I would go with certain suggestions such as:-

  1. There is needed to come with certain effective law to protection of animal rights.
    1.  Education regarding the protection of animal rights has to be included.
    1. There must be a clear contention that is animal under the preview of person?
    1. State has to make strict law against the cruelty of animals.

[1] Manishranjan, meaning and kind of person, http://www.legalservicesindia.com/article/2316.

[2] 4th ed, G.W.Paton,A textbook of Jurisprudence,p.n.302

[3].definition and kind of person,https://www.srdlawnotes.com,on29sep.2019

[4] [1896]UKHL 1,[1897]AC22

[5].supranote1.

[6].article on definition,origin and meaning of person,http://www.lawnotes.com

[7].constitution of india,1950,article21

[8] Supranote7

[9].bare act,constitutional law of india,1950

[10] Supra note 9

[11].article on fundamental right and duties,http://www.shodhganga.com.

[12]. State of Rajasthan v/s UOI,AIR1977,SC1361

[13].fundamental duties under the indian constitution and different statutes,http://www.legalservicesindia.com

[14] Comprehensive study on right and duties of person,http://www.lawnotes.com

[15].WP(C)(PIL)No.02/2018

[16]Civilappealno.5387,2014


WITNESS PROTECTION SCHEME: A SINE QUA NON FOR INDIAN CRIMINAL JUSTICE SYSTEM: VEDDANT MAJUMDAR

ISSN: 2581-8465

WITNESS PROTECTION SCHEME: A SINE QUA NON FOR INDIAN CRIMINAL JUSTICE SYSTEM

Author: Veddant Majumdar

ABSTRACT

A witness protection scheme was long due in India and with the Supreme Court’s Verdict of December 2018, this requirement was fulfilled. Witnesses are the eyes and ears of the court as has been rightly stated by Jeremy Bentham. The statements of witnesses are of paramount importance for the court to come to a conclusive determination of facts of any case, based upon which the court delivers its verdict in accordance with the law. Witnesses are often subjected to external pressures and threats by persons against whom such witnesses are testifying in the court, because of which witnesses turn hostile and the very prospect of summoning a witness to the court, i.e, to reveal the true state of affairs in a case, gets frustrated. This leads to the subversion of the judicial process. In wake of these sorry state of affairs, the Supreme Court came up with the Witness Protection Scheme in 2018. There is, however, a downside to this as well, legislations work better in comparison to precedents to arouse public participation. All aspects of the Witness Protection Scheme are discussed at length in the following article. This is an attempt to evaluate a lacuna in the criminal justice system, and come up with an effective remedy for the same in the interest of justice.

INTRODUCTION

The witness is an important part of the justice delivery system, and especially of the criminal justice delivery system. It is on his testimony that the court proceeds in any trial, the testimony of a witness is a significant aspect of direct evidence. As a natural successor to the stated fact, the safety of a witness and his near ones is always under threat in connection to the trial in which his testimony is required. Ensuring the safety of the witness and his near ones, in addition to his testimony being uninfluenced by external pressures of any kind, a witness protection scheme had been in the pipeline until recently, when the Hon’ble Supreme Court of India directed the Union and the State governments to come up with a legislation of the witness protection scheme and until then the directions given by the Supreme Court in December 2018 shall operate.

HISTORY

A witness protection scheme has been envisaged on a number of occasions in the past as well, but a decisive towards its actuation had not been taken until the Supreme Court’s decision in December 2018. The 14th Law Commission report, 1958 pitched this idea for the first time. The 172 and 178th Law Commission report also dealt with the said subject and suggested that witnesses are to be protected from the pressure tactics employed by the accused against the witness and his near ones[1].

The courts have acted towards witness protection in a multitude of ways in the past, some instances of the same being:

(b) Re-trial was allowed as there was the apprehension of threat to the life of witness [Sunil Kumar Pal vs. Phota Sheikh and Other[2]]

(c) The identity of rape victims was kept anonymous in furtherance of the avoidance of threats to them. [Delhi Domestic Working Women’s Forum vs. Union of India[3]]

(d) Discouraging the practice of granting adjournments in cases where the witness is present and accused is absent. [State of U.P. vs. Shambhu Nath Singh[4]]

(f) Cross-examination via video conferencing — This particular method ensures that the testimony of a witness is not excluded solely because of his inability to reach the court.

Fortunately, ideas translated into actions in December, 2018, when a division bench of the Supreme Court, comprising of Justice A.K Sikri and Justice Abdul Nazeer called for the implementation of the witness protection scheme as per the directions of the Supreme Court under Article 141[5] and 142[6] of the Constitution of India, until the assemblies and the Parliament come up with a legislation in the said context. The Supreme Court directed the Union, States and Union Territories to implement the Witness Protection Scheme, 2018 in its letter and spirit.

THE WITNESS PROTECTION SCHEME, 2018

Preface, Aims & Objective: The ability of a witness to give testimony in a judicial setting or to cooperate with law enforcement and investigations without fear of intimidation or reprisal is essential in maintaining the rule of law. The rationale behind this scheme is to ensure that the investigation, prosecution, and trial of criminal offences is not adversely affected because of witnesses being influenced, intimidated or frightened to give evidence without protection from violent or other criminal recrimination.  This scheme aims at gaining the confidence of the witness by providing adequate protection from all threats in relation to his testimony in a trial, thereby ensuring a fair trial with the transparency of facts. The end goal of this scheme is to provide a system of trials where the witnesses can testify in the absence of fear or favour.

Part II of the scheme mentions the persons to whom protection under this scheme is extended to.

CATEGORIES OF WITNESS AS PER THREAT PERCEPTION:

1) Category ‘A’: Where the threat extends to the life of witness or his family members, during investigation/trial or thereafter.

2) Category ‘B’: Where the threat extends to safety, reputation or property of the witness or his family members, during the investigation/trial or thereafter.

3) Category ‘C’: Where the threat is moderate and extends to harassment or intimidation of the witness or his family member’s, reputation or property, during the investigation/trial or thereafter.

The scheme also entails a framework for allocation of funds for the protection of witnesses, under S.4. A fund, namely: The Witness Protection Fund, from which the expenses incurred in the compliance to a witness protection order, shall be met.

Speaking of protection measures, S.7 of the scheme enumerates several types of protection measures to deal with the protection of witnesses in the most comprehensive way possible. The witness protection measures ordered by the court shall be proportionate to the threat looming upon the persons concerned and shall be for a stipulated duration, suiting the situation of the case at hand, but not exceeding three months at a time.

The protection measures herein include:

(1)No interaction between the accused and the witness during/before the trial or investigation.

(2) The telephone calls of the witness are to be monitored by a competent authority

(3) Directing the telephone companies to change the phone number of the witness or to assign him an unlisted phone number.

(4) Security equipment such as CCTV and alarms are to be installed at the residence of the witness.

(5) Concealment of the identity of the witness by referring to him/her with the changed name or alphabet;

(6) Contacts of the witness are noted by competent authorities, who are to be called in times of exigencies.

(7) Provision for in-camera trials

(8) Setting up of one-way mirrors using through which the witness could see the accused but not vice versa.

 (9) financial aid to the Witness, out of the witness protection fund if required.[7]

Part III

PROTECTION OF IDENTITY: -While the investigation of an offence or a trial for the same is in process, an application seeking identity protection can also be filed before the Competent Authority through its Member Secretary. After receipt, such application, the Member Secretary of the Competent Authority shall call for the Threat Analysis Report. The Competent Authority shall, after examining the witness and his near ones, pass an identity protection order for the persons who require the same as per the competent authority.

Part IV

CHANGE OF IDENTITY: -The identity of the witness is changed for the purposes of the trial with the intention of safeguarding him against the persons the said witness would be testifying. A changed identity would disable the prospective offender to trace the witness from harming him in the future.

Part V

Relocation of Witness: Orders for the relocation of witnesses can also be passed by the court, as per which the residence of the testifying witness is changed temporarily to protect him from being attacked, harmed or pressurized by the persons against whom such person is testifying.

INTERNATIONAL PERSPECTIVE

The United Nations General Assembly adopted the ‘Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power’ in November 1985, which considered the victims of crimes to be important witnesses and put forth four ground objectives, the said objectives being:

(i) Assistance

(ii) Access to justice and fair treatment

(iii) Restitution

(iv) Compensation[8]

DEFINING A WITNESS & HOSTILE WITNESS

The Indian Evidence Act, 1872 does not explicitly define “Witness”. A witness is any person who had been the onlooker or observer of an incident that amounted to an offence, or of any other event which is a relevant transaction while adjudicating the offence in question. In the words of Jeremy Bentham, Witnesses are the eyes and ears of the court. Some duties/responsibilities have been attached. Witnesses often find that there is no legal obligation for him to submit their statements in the court. Hon’ble Supreme Court of India addressed the said issue in the case of State of Gujrat v. Anirudh Singh[9], wherein it held that: “It is the salutary duty of every witness who has the knowledge of the commission of the crime, to assist the State in giving evidence.” Even the Malimath Committee Report on Reforms of Criminal Justice System, 2003 spoke along the same lines, stating that “By submitting evidence pertaining to the commission of an offence, he performs a sacred duty of assisting the court to discover the truth”.

A Hostile Witness is a such a witness who turns antagonistic to the party calling them, which frustrates the purpose of calling a witness. This generally happens due to threats to the witness and his close ones. This has been a common phenomenon in India’s trial history, because of which there have been instances of “tailored testimonies’” by such witnesses. It shadows the truth and leads to denial of justice to the aggrieved parties and sets a precedent of a miscarriage of justice at large. The Supreme Court ruled in the case of Shyamlal Ghosh v. State of West Bengal[10], that the statement of even of a hostile witness can be relied upon by the court, to the extent that it supports the case of the prosecution. This ruling has both, a positive and a negative connotation. The positive one is that such witness is still serving the purpose for which he had been summoned by the court, i.e, giving a statement supporting the stance of the prosecution. The negative one is that, even though the said witness is giving his testimony in furtherance of the prosecution’s stance, but such testimony might not necessarily be free from alterations, and such alterations could weaken the prosecution’s case.

The Supreme Court is the final interpreter of the Constitution, and thus, immense faith in reposed in it to bring about justice. In realization of the said duty, The Hon’ble Supreme Court, in the case of State Tr. P.S Lodhi Colony v. Sanjeev Nanda[11], ()that the court cannot shut its eyes to the reality in the event of witnesses becoming hostile. Becoming oblivious to it would subvert the judicial process, therefore, the courts in such circumstances should not be mute spectators and make every possible effort to bring home the truth.

CONSTITUTIONAL ASPECT

A lot of importance has been attached to witnesses over the years by courts. A glaring example of this fact can be seen in the court’s verdict in the case of Zahira Habibullah Sheikh v. the State of Gujarat, wherein the Hon’ble Supreme Court ruled that the State has a definite role to play in protecting the witnesses, it needs to start with sensitive cases involving those in power, who have political backing and could influence the witness by muscle and money power. The state is under a duty to ensure that during a trial in the court, a witness is able to safely depose the truth without any fear of being haunted by those against whom he had deposed.

The State is under a constitutional obligation to protect the life and liberty of its citizens. It is a sine qua non for the observance of the rule of law.

The court has observed in the case of Mahender Chawla &Ors. V. Union of India &Ors. that being unable to testify in courts due to threats or any other kinds of external pressures whatsoever is a clear violation of the right to life and personal liberty under Article 21[12] of The Constitution of India. Therefore, in furtherance of the protection of Article 21, witness protection was imperative and the same has been brought by the Hon’ble Supreme Court and rightly so!

SUGGESTIONS

India is sadly a country which lacks literacy and awareness to quite an extent, a sizeable part of India’s population does not recognize the judgment of the court as a law. The failure to recognize that the principle of law decided in any particular case operates in rem causes a big menace and cut shorts the authority of the courts substantially. Legislations are mostly understood as the only source of law, the examples of which can be taken up from the past. There are still FIRs being registered under S.66A of the Information Technology Act[13], Instantaneous Triple Talaq still takes place despite that practice being declared unconstitutional by the Supreme Court. The verdicts of courts still have the precedential power, regardless of people’s understanding of the law, but effective public participation towards the Witness Protection Scheme can be aroused only by passing legislation to that effect. It thus incumbent upon the Parliament and the State Assemblies to pass legislation to this effect for the effective implementation of the Witness Protection Scheme.

CONCLUSION

There had been a dire need for the inclusion of a witness protection scheme in our justice delivery system to ensure fair testimonies and moreover, fair trials. The actuation of the same will go a long way in assisting the court to discover the truth in any trial. The security and protection of witnesses and allied people are of paramount importance for the court to obtain untailored testimonies from the witnesses to ensure a fair and transparent system of trials. The projection of threats on witnesses had been a big barrier in the attainment of testimonies free of fear, but the newly implemented witness protection scheme should curb this evil.


[1]Shrey Verma, Witness Protection Scheme in India, iPleaders (December 31, 2018, 9:20 pm), https://blog.ipleaders.in/witness-protection-scheme-india/

 

[2]AIR 1984 SC 1591

[3](1995) 1 SCC 14

[4](2001) 4 SCC 667

[5]INDIA CONST. art. 141

[6]INDIA CONST. art. 142

[7]supra note 1

[8]Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power Adopted by General Assembly resolution 40/34 of 29 November 1985

[9](1997) 6 SCC 514

[10]AIR 2012 SC 3539

[11]AIR 2012 SC 3104

[12]INDIA CONST. art. 21

[13]The Information Technology Act, 2001, S.66A

JUDICIAL PREDATION AS A FACET OF PARLIAMENTARY DEMOCRACY WITHIN THE CONTOURS OF SEPARATION OF POWERS: PURBAYAN CHAKRABORTY & KAVYA NARGUND

ISSN: 2581-8465

Judicial Predation as a facet of Parliamentary Democracy within the contours of Separation of Power

Author: Purbayan Chakraborty & Kavya Nargund

ABSTRACT

Constitutional supremacy is the order of the day. The role of the judiciary in guarding the constitutional principles is undeniable political truth. The excellence of the judicial institutions affords an illustrious sense of satisfaction to the people of the country against the distrust and distress attitude of the government. It acts as custodian of constitutional principles and basic rights of the citizens. Therefore, it is indispensable for the modern States to maintain the sanctity of the judiciary in order to emancipate the dynamic role of this constitutional office. Realizing the crucial role of judiciary in the constitutional governance, the judicial system of the modern States has been set up in a very constructive and careful manner under their respective Constitution. Verdict of the Supreme Court of India on NJACA, declaring it as Unconstitutional, triple talaq judgement directing the parliament to enact law within 6 months to address the issues relating to personal laws of the country, and controversial tussle regarding the appointment of the judges to the High Court of Uttar Pradesh has unveiled the intrinsic conflict between Parliament and Supreme Court of India. These developments have created unprecedented apprehension in the mind of constitutional scholars in assessing the sanctity of judicial review and parliamentary supremacy in constitutional jurisprudence. This paper aims to succinctly analyze the position of parliamentary supremacy and the significance of judicial review in the context of a constitutional crisis between judiciary and legislature while exercising their powers within the constitutional parameters. This paper focuses on comprehensively and addresses the complex constitutional interrogations. The study in the paper starts with the vitality and vigor of the Parliamentary Democracy and then the focus shifts upon the determination and constitutional discipline of the Judiciary. At this stand-point when the study awaits at the stage where we have two powerful organs claiming a stake of supremacy under the Constitution and the solution to which the Constitution asserts through conventional doctrines. Finally, the last paper focuses on how judicial review takes on Parliamentary Democracy.

“Never seek to enlarge judicial power beyond its proper boundary, nor fear to carry it, to the fullest extent that duty requires”

  • Chief Justice Marshall

PROLOGUE

Constitutional supremacy is the order of the day.[1]The role of the judiciary in guarding the constitutional principles is undeniable political truth.[2]The excellence of the judicial institutions affords an illustrious sense of satisfaction to the people of the country against the distrust and distress attitude of the government. It acts as custodian of constitutional principles and basic rights of the citizens. Therefore, it is indispensable for the modern States to maintain the sanctity of the judiciary in order to emancipate the dynamic role of this constitutional office. Realizing the crucial role of the judiciary in constitutional governance, the judicial system of the modern States has been set up in a very constructive and careful manner under their respective Constitution.

One of the striking features of the judicial system is independency.[3] The judicial process based on probity, fairness, and impartiality is unimpeachable.[4]It is a fundamental pillar of public Confidence.[5]These basic tenets of the judiciary have stretched the confidence of the public on judiciary. The enlarged sense of confidence commanded by judiciary located itself as a benevolent institution of the political system. Under the context of a fundamental characteristic of the judicial system, the Supreme Court of India (SCI) is termed that

“The foundation of the judicial system which is based on the independence and impartiality of those who man it will be shaken if disparaging and derogatory remarks are made against the presiding judicial officers with impunity. It is high time that we realize that the much cherished judicial independence has to be protected not only from the executive or the legislature but also from those who are an integral part of the system. An independent judiciary is of vital importance to any free society”.[6]

In the backdrop of the complex task of the judiciary, Alexander Hamilton opined that

“The independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.”[7]

As viewed by Justice Hand in Brown v. Walter

 “A judge…is more than a moderator; [a judge] is affirmatively charged with securing a fair trial and a judge must intervene suasponte to that end, when necessary… justice does not depend upon legal dialectics so much as upon the atmosphere of the courtroom, and that in the end depends primarily upon the judge.”[8]

It is unquestionable fact and indeclinable truth from the above-mentioned observations that the honest, impartial, independent and competent judicial branch to ensure rule of law, stimulating public confidence, dispensing administration of justice much relies upon the appointment process of the higher judiciary. In establishing integrity and probity based judiciary, the various processes such as appointment, removal and service conditions of the judges have a pivotal role to play and these processes should be guided by Constitutional principles.  By most accounts, these are uniformly held, well established and uncontroversial principles across the globe throughout the ages.  Accordingly, the framers of the Constitution were able to incorporate potential provisions on the judiciary so as to articulate and materialize the above-mentioned principles.[9]

However, verdict of the Supreme Court of India on NJACA, declaring it as Unconstitutional, triple talaq judgement directing the parliament to enact law within 6 months to address the issues relating to personal laws of the country, and controversial tussle regarding the appointment of the judges to the High Court of Uttar Pradesh has unveiled the intrinsic conflict between Parliament and Supreme Court of India. These developments have created unprecedented apprehension in the mind of constitutional scholars in assessing the sanctity of judicial review and parliamentary supremacy in constitutional jurisprudence. This paper aims to succinctly analyze the position of parliamentary supremacy and the significance of judicial review in the context of a constitutional crisis between judiciary and legislature while exercising their powers within the constitutional parameters.

This paper focuses on comprehensively and addresses the complex constitutional interrogations. The study in the paper starts with the vitality and vigor of the Parliamentary Democracy and then the focus shifts upon the determination and constitutional discipline of the Judiciary. At this stand-point when the study awaits at the stage where we have two powerful organs claiming a stake of supremacy under the Constitution and the solution to which the Constitution asserts through conventional doctrines. Finally, the last paper focuses on how judicial review takes on Parliamentary Democracy.

Parliamentary Democracy vis-à-vis Legislative Supremacy

“The dignity of the individual and the sacredness of human personality are the fundamental principle of democracy. The moral basis of a democratic society is respect for the individuals. The voice of the people must be carried by the Government and the parliamentary democracy is the best instrument for the ascertainment and the expression of the public mind. Parliament acts as a liaison between the people and the State. It is the function of the Parliament to express, not to suppress, public opinion and social discontent, if any. A sound democracy requires freedom of thoughts and expression and this demands respect for minority opinion.”

  • Dr. S. Radhakrishnan

Countries with parliamentary systems may be constitutional monarchies, where a monarch is ceremonial head of state while the head of government is almost always a member of the legislature (such as the United Kingdom, Sweden and Japan), or parliamentary republics, where a mostly ceremonial president is the head of state while the head of government is regularly from the legislature (such as Ireland, Germany, Pakistan, India, and Italy). In a few parliamentary republics, such as Botswana, South Africa, and Suriname, as well as German states, the head of government is also head of state, but is elected by and is answerable to the legislature.[10]

The Constitution of India establishes a system of parliamentary democracy in India. Before taking such a decision, the Constituent Assembly discussed in detail as to whether the Presidential System would be more suitable for India or the Parliamentary System. While some of its members like SayeedKaji, & S. L. Saxena, strongly supported the case for establishing a presidential system, the majority of members supported the case for adopting the parliamentary form of government. This decision was made because the people of India had some experience in working this type of system and because it provided for a government directly responsible to the legislature. The Constituent Assembly, therefore, decided to adopt the system of parliamentary democracy both at the Union as well as State levels.

Parliamentary form of government hints at Legislative Supremacy

India has a hybrid system of government. The hybrid system combines two classical models: the British traditions, drawn upon parliamentary sovereignty and conventions, and American principles upholding the supremacy of a written constitution, the separation of powers and judicial review. The two models are contradictory since parliamentary sovereignty and constitutional supremacy are incompatible. India has distinct imprints in her constitution of both the British and American principles. In other words, following the adoption of the 1950 Constitution, India has evolved a completely different politico-constitutional arrangement with characteristics from both the British and American constitutional practices.

Parliament is also the custodian of the Constitution of India. The Preamble to the Constitution proclaims the supremacy of the people of the country. They exercise their supremacy through their elected representatives who are the Members of Parliament. While parliamentary sovereignty places the highest position of the government to parliament has a wide range of power, including the power of legislating law and deciding policy. The conventional view of the doctrine of parliamentary supremacy is basically that the only parliament has the liberty and freedom to create and invalidate any law as it wishes and that no other institution can challenge that right, no matter how absurd, unjust or unreasonable the law is. Pursuant to the Indian Constitution, the very basis of the parliamentary democracy is the exercise of the power, which is based on the popular will and the popular control.[11] The doctrine usually referred to the description by Professor A.V Diecy[12], which states Parliament is legally competent to legislate upon any subject matter. By his description, reflects that parliament is very powerful where it may pass any law without restriction.

Within a modern legal system, enacted laws remain in force until they are repealed or amended unless they are declared when enacted to have a limited life.[13] It is inherent in the nature of a legislature that it should be free to make new laws. The fact that legislation about, say, divorce or consumer protection was enacted five or 50 years ago is no reason why fresh legislation on the same subject should not be enacted today: even if social conditions have not changed, the legislature may wish to adopt a new approach. When Parliament does so, it is convenient if the new Act expressly repeals the old law or states the extent to which the old law is amended. Suppose that this is not done and a new Act is passed which conflicts with an older Act but does not expressly repeal it. There now appear to be two inconsistent statutes on the statute book.

It is for the courts to resolve this conflict because they must decide the law which applies to a given situation. Where two Acts conflict with each other, and the conflict cannot be resolved in another way, the courts apply the Act which is later in time; the earlier Act is taken to have been repealed by implication to the extent of the inconsistency.

If two inconsistent Acts be passed at different times, the last must be obeyed . . . Every Act is made either for the purpose of making a change in the law, or for the purpose of better declaring the law, and its operation is not to be impeded by the mere fact that it is inconsistent with some previous enactment.[14]

Lawmaking is the primary function of legislative bodies. In all parliaments, there are established procedures for making laws. By and large, these procedures concern initiation, introduction, general discussion, Committee scrutiny, public consultation, amendments, discussion in the plenary and voting leading to authentication by the President. We also have time-honored rules for legislation comparable to international standards. Of late, Civil Society Organizations have tended to become strident in regard to the manner in which they should be consulted in lawmaking. Of course, these organizations can provide invaluable inputs based on their grassroots perception of people’s aspirations. It is desirable that any public consultation including with Civil Society organizations is done within the framework of parliamentary procedures. In representational democracies, it is the prerogative of the parliament to make laws on behalf of the sovereign people. We cannot allow lawmaking to be delegated to the Civil Society with the result that it becomes something in the nature of collective bargaining. The simple reason is that there are lot many Civil Society Organizations and we should not tie ourselves down by complicated procedures. Nor do they have a representative character. This apart, such organizations also may have their caprices and partisan orientations. Laws touching, as they do, millions of people should be formulated without capricious and partisan orientations. Government, on their part, could study, and learn from, the experiences of other countries such as the UK in perfecting pre-legislative scrutiny.

SUPREMACY OF THE JUDICIARY ASSURING THE CONSTITUTIONALISM

National identity is about national self-definition, how a society understands and defines itself and credit of such is to be found at the Grund-norm of the nation. The Constitution of India certainly entails in its Preamble the national identity of India. Such a basic norm was a precipitate of outstanding efforts of the Constituent Assembly and under the authority of the People of India. The idea of democracy was not an add-on but was inherent in the idea of India as a nation-state.[15] The question as to the proliferation and organization of the State under the authority of the Constitution for its effective implementation requires the assimilation of constitutional obligations mutually among the co-ordinate organs as provided by the Constitution there-under. India is a Parliamentary form of government where one can find that accountable infusion of the executive in the legislature. Meanwhile, the legislature assuming that vast power has to act within the constitutional license, but when we trace the history we are evident to our satisfaction that the same organ has trespassed its contours claiming its supremacy over other co-ordinate organs.[16] The same basic norm has also formulated for a constitutional creature under a dynamic concept of Polarisation of Power, i.e. the Judiciary. If we are to remember the words of ShriAlladiKrishnaswamiAiyar, “the future evolution of the Constitution will to a large extent depend upon the work of the Supreme Court and the direction given to it by the court…From time to time in the interpretation of the constitution, the Supreme Court will be confronted with apparently contradictory forces at work in society for the time being. While its main function may be one of the interpreting Constitutions as contained in the instrument of the government, it cannot in the discharge of its duties afford to ignore the social, economic and political tendencies of the times which must furnish the necessary background. It has to keep the poise between the seemingly contradictory forces.[17]

On churn of events[18], which, blatantly alleged to juxtapose the Constitutional philosophy have tapped the conscience of the judiciary and the latter achieved an expansive judicial control in various areas under our Constitution. By exercising such powers of judicial review which became a classic case of, “brooding Omni Presence”. The judicial attitude and behavior of the Courts after 1980, gave rise to many concepts like ‘judicial activism’, ‘judicial supremacy’, ‘judicial absolutism’, ‘judicial liberalism’ and the like.[19] Judicial review is considered as an adjunct to the limited government, an instrument of progress and promoter of constitutional values. A Constitution enjoys a special status because of its position as a reservoir of power. The judicial review stems from the juristic nature of the Constitution, to protect and promote the constitutionalism.[20] Democracy is designed for the welfare of all citizens and an independent judiciary is one of the instruments to be used for that purpose.[21] It is often said that the legislature enacts the law, the executive executes and the Courts thereafter interpret that law. This is not a correct proposition in which one can afford to venture against the prevailing practicality. It is the judiciary that has time and again bridged the lacunas duly arising from the lethargic and adamant approaches of the other organs in the promotion of the constitutional values and principles of the public policy. In regard to the role exhibited by the Judiciary in these days, one can afford to say that, the supremacy of the judiciary is not a luxury or a constitutional trespass but essential as a constitutional necessity. The Indian judiciary has commanded the respect and a sense of faith which people owe towards it because it stood up as the only limb of the State which annulled the ideology of Lord Acton.[22] The notion “what Parliament doth, no power on earth can undo”,[23]which may be applauded in the land of Emperor, but that notion does not properly hold good in the Indian context and any reference such idea would be a fallacy of Indian Parliamentarians or Executives for that matter. Fali S. Nariman, says, “After half a century a written Constitution takes on a life of its own especially in a country that is wedded to the concept of judicial review.”[24]  The statement logically ensnares senses of every individual in this country in the role played by the Judiciary in protecting and ensuring the constitutional adages.

It is essential that judicial supremacy must be carved out from the delicate constitutional balance so as to ensure the constitutional democracy rather than beheading to the majoritarian democracy. Having been framed for a country with many races, languages, religions, and cultures it guaranteed to all people freedom of religion, faith, and worship, and it conferred on minorities’ educational and cultural rights. These fundamental rights preserve the unity and integrity of India. By conferring the amending power to the Parliament the latter abused such power and converted a free and democratic Constitution into a dictatorship, in which the freedom of thought and expression, and freedom of religion were suppressed, equality disregarded, and abuse of power unchecked by an independent Judiciary, were the proximate consequences of the presumption of Parliamentary supremacy.[25]

The Judiciary entrusted upon it a solemn role under the Constitution has time and again courageously strived to protect the constitutional philosophy. It is the Judiciary which operationalise the textual law into functional. Constitutional theorists often discuss judicial supremacy under the rubric of judicial review.[26]In this light after having regard in length as to the vital role played by judiciary, at no stretch of imagination judicial supremacy becomes the order of the day and sine qua non for prevailing of constitutional order.

Theory of bipolar sovereignty restoring the equilibrium between the co-ordinated organs

It has been well said by Lord Acton: – “Power corrupts and absolute power tends to corrupt absolutely”. Conferment of power in a single body leads to absolutism. It is generally accepted that there are three main categories of state functions – (i) the legislative, (ii) the Executive, and (iii) the Judicial. At the same time, there are three main organs of the State i.e. legislature, executive and judiciary. According to the theory of separation of powers, these three powers and functions of the state must, in a free democracy, always be kept separate and exercised by separate organs of the state. Thus, the legislature cannot exercise executive or judicial power; the executive cannot exercise the legislative or judicial power of the state[27].

It is widely accepted that for a political system to be stable, the holders of power need to be balanced off against each other. The principle of separation of powers deals with the mutual relations among the three organs of the state namely legislature, executive and judiciary. This doctrine tries to bring exclusiveness in the functioning of the three organs and hence a strict demarcation of power is the aim sought to be achieved by this principle. This doctrine signifies the fact that one person or body of persons should not exercise all the three powers of the state. The doctrine of separation of powers is an animation of the rule of law and its roots also lie in the concept of natural law because of both aims at the progressive diminution of the exercise of the arbitrary power necessary for protecting the life, liberty, and dignity of the individual. It is an organic flexible doctrine that can be molded to suit the requirements of governance, but its inherent fundamentals and rationality must not be compromised, i.e. “accumulation of power” is a definition of tyranny. Brandeis J. scientifically explained the purpose of the separation of powers is not to promote efficiency in the administration but to preclude the exercise of arbitrary power. He further emphasizes that its purpose is not to avoid friction among various organs of the State by keeping them separate but to protect people from autocracy by means of inevitable friction due to the distribution of powers. Therefore, the basic purpose of separation of powers is to divide the governance against itself by creating separate centers of power so that they could prevent each other from threatening tyranny.[28]

Montesquieu Stated the Doctrine of Separation of Powers in the Following Words- “They would be an end of everything, were the same man or same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals”. Through this doctrine, Montesquieu tried to explain that the union of the executive and the legislative power would lead to the despotism of the executive for it could get whatever laws it wanted to have, whenever it wanted them. Similarly, the union of the legislative power and the judiciary would provide no defence for the individual against the state. The importance of the doctrine lies in the fact that it seeks to preserve human liberty by avoiding the concentration of powers in one person or body of persons.

The American Constitution provides for a rigid separation of governmental powers into three basic divisions, the executive, legislative and judicial.[29] It is an essential principle of  AmericanConstitution that powers entrusted to one department should not be exercised by any other department. The Australian Constitution follows the same pattern of distribution of powers.[30] Unlike these Constitutions, the Indian Constitution does not expressly vest the three kinds of power in three different organs of the State. The Constitutional history of India reveals that the framers of the Indian Constitution had no sympathy with the doctrine. This is evident from its express rejection in spite of attempts being made[31]. The Constituent Assembly, while in the process of drafting the Constitution, had dwelt at length for incorporating the doctrine and ultimately rejected the idea in toto. Dr. B.R. A. Ambedkar, who was one among the members of the Constituent Assembly, while comparing the Parliamentary and Presidential systems of India and America respectively, remarked as thus[32]. But the functions of the different parts or branches of the state have been sufficiently differentiated and consequently, it can very well be said that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another. In KesavanandaBharati v. State of Kerala[33]  and later in Indira Nehru Gandhi v. Raj Narain[34] case, apex Court declared the separation of powers to be a part of the basic structure of the Constitution. Moreover, there is ample evidence in the Constitution itself to indicate that it creates a system of checks and balances by reason of which powers are so distributed that none of the three organs it sets up can become so predominant as to disable the others from exercising and discharging powers and functions entrusted to them.

In a parliamentary form of government, one would certainly find the difficulty in tracing the domains for the administration of separation of powers, but it is justified that the Legislature and Executive may be fused and the executive indeed can exercise the powers of departmental or subordinate legislation when such powers are delegated to it by the legislature. But the judiciary is always separate from the rest two organs.[35] One of the three formulations of this separation of powers is, ‘one organ of the government must not interfere with the other organ of the government’; the institutional balance between the executive, the legislature and the courts is determined by the role allotted to each of them under the Constitution and the limitations that the Constitution imposes on each of them. Under constitutional scheme in India, the legislatures have the power to make laws but the courts have the power of judicial review under which they are required to interpret the provisions of the Constitution and the laws made by the legislature to determine whether the legislatures are acting within the limits imposed by the constitution. The claim of legislatures in India to be the “sole judge” in all matters pertaining to legislative privilege arises out of their need for autonomy and self-sufficiency in their functioning without being dependant on any other organs of the State. Accordingly, the legislatures claim to be the sole judge not only with respect to the exercise of their privileges but also with respect to the existence and extent of privileges.[36] In demarcating the boundaries between the exercise of jurisdiction by the legislatures and the superior courts in the field of legislative privilege, the legal principles developed by the courts over the last six decades since the commencement of the Constitution have brought about equilibrium today. Both wings of the state exercise restraint towards the exercise of power by the other.[37] In countries where there is written Constitution the precise distinction between the organs of the State, the powers of such organs may be of great practical importance, for the exercise of each power may be surrounded by safeguarding conditions. In a federal system where disputes as to the limits of the constitutional powers have to be resolved by courts, the distinction between judicial and other powers may be vital for the maintenance of the Constitution itself.[38]

Redefining the concept of Judicial Review as an important part of Parliamentary Democracy

In a mature democracy, the Courts and Parliament have distinct and complementary constitutional roles in securing good government according to the Constitution.[39] The Courts will no longer avoid adjudicating the legality of a decision merely because it has been debated and approved by Parliament[40] or relates to the nationally important policy pursued by a Minister accountable to Parliament.[41] The distinctive roles of judicial review & parliamentary oversight of executive action create opportunities for synergy, with aspects of a particular decision being scrutinized in different ways by different bodies. Thus, a government decision may be examined in judicial review proceedings, in an ombudsman complaint, and by a parliamentary committee.[42] Judicial review proceedings may prompt parliamentary action, and vice versa.[43] Judicial review also goes some way to answering the age-old question of “who guards the guards?” by ensuring the public authorities responsible for ensuring accountability of government does so within the boundaries of their own lawful powers.[44]

The concept of Judicial Review was recognized for the first time by Lord Coke in Dr.Thomas Bonham v. College of Physicians[45], where he observed that “in many cases, the common law will control Acts of Parliament.”  Lord Coke intended to introduce the doctrine of  Judicial Review in this landmark decision. Subsequently in the case of the City of London v. Wood[46] Chief Justice Holt remarked that “An Act of Parliament can do no wrong, though it may do several things that look pretty odd.” This remark establishes the ‘Doctrine of Parliamentary Sovereignty’ which means that the court has no power to determine the legality of Parliamentary enactments.

The concept thereafter has truly come into force when it was expounded in Marburyv. Madison[47] by Marshall C.J., where he asserted, “it is emphatically the province and duty of the judicial department to say what the law is.” The power of the courts to invalidate a law made by the Legislature in case it conflicts with the mandate of the Constitution emanates from the other part of the juristic nature of the Constitution, namely, that it is the ‘supreme law of the land.’[48]

In the Indian context,  the Apex Court since the era of A.K. Gopalan’s case[49] to the historic judgment in I.R. Coelho’s[50]case magnified the concept of the doctrine of Judicial Review. In the present scenario, the Supreme Court plays a very crucial role to interpret the constitutional provisions and now the concept of Judicial Review became a fundamental feature or a basic structure of the Constitution. It is observed by scholars that the aim of Judicial Review is to ensure democratic outcomes while preserving popular participation in democratic processes.[51] Further, it helps in limiting the powers given to the different organs of the State.

The initial years of the Supreme Court of India witnessed the adoption of an approach characterized by caution and circumspection. Being steeped in the British tradition of limited judicial review, the Court generally adopted a pro-legislature stance. This is evident from the rulings such as A.K. Gopalan.   However, it did not take long for judges to break their shackles and this led to a series of right to property cases in which the judiciary was logger head with the parliament.

The nation witnessed a series of events where a decision of the Supreme Court was followed by legislation nullifying its effect, followed by another decision reaffirming the earlier position, and so on. The struggle between the two wings of government continued on other issues such as the power of amending the Constitution. During this era, the Legislature sought to bring forth people-oriented socialist measures which when in conflict with fundamental rights were frustrated on the upholding of the fundamental rights of individuals by the Supreme Court. At the time, an effort was made to project the SupremeCourt as being concerned only with the interests of propertied classes and being insensitive to the needs of the masses. Between 1950 and 1975, the Indian Supreme Court had held a mere one hundred Union and State laws, in whole or in part, to be unconstitutional.

The Indian Judiciary has played a remarkable role by the way of Judicial Review to maintain the supremacy of the Constitution. As said by Holmes that life of the law is not logic but experience. Hamilton, one of the framers of the constitution of the United States of America says that if there is a conflict between the constitution and the law the judges should pre reconstitution. In India, it is reflected by 100%. After the decision of KeshavanandaBharti’s case42ndamendment was made to the Constitution which inserted Clause 4 and 5 which declared that their shall be no limitation on the amending power of the parliament of what so ever. According to Mr.Swaran Singh, the Chairman, and Congress Committee on Constitutional Amendments put an end to any controversy as to which is Supreme, Parliament or theSupreme Court. But In Minerva Mills v. Union of India[52], The Supreme Court struck down clauses (4) and (5) of Article 368 inserted by the 42nd Amendment, on the ground that these clauses destroyed the essential feature of the basic structure of the Constitution. the judgment of the Supreme Court thus makes it clear that “the Constitution-not the parliament is supreme in India.”

After having observed the importance of judicial review as an essential and axiomatic truth for ensuring Constitutionalism it is to be inferred that the judicial review is considered as an essential part of the Parliamentary Democracy just to ensure the constitutional values to the citizens by protecting their life and liberty.

Conclusion

Constitution of any country is a lifeless document with a noble intention of transforming a nation, the State which is organized under it has to function in furtherance of realization of the said goals set by that Premier Law. The State while acting in accordance with the mandate of the Constitution fills life to that lifeless instrument of transformation. The paper as in length has shed some light on lucrative concepts of the Constitutional Jurisprudence. The study focused on the loggerhead battle of two mighty organs of the State, one claiming the supremacy over the other. As they are the creatures under the Constitution they must oblige to the notion of the Constitutional Supremacy, to that extent neither of them is supreme. In the context of claiming supremacy under the subordination of the Constitution in order to protect the constitutional values, one needs to strike a workable balance between these two conflicting extremities. When we analyze the structure of paper few of the constitutional principles have been addressed as the contentions by the said organs in the quest for supremacy. The Parliamentary democracy constituting the wider principle on the one hand and the Judicial review, an identity of the Constitution on the other hand. To phrase this battle, as a conflict of one Basic structure with the other. In order to draw a workable balance between these two, the need for an hour requires the appreciation of the political, social and economic conditions of the country along with the track record of the performance of their respective roles duly conferred upon them by the Constitution. When we weigh the preponderance of probability always favors the Judiciary as a constitutional office, as it has retained the faith of the Supremes of the country (People of India). So as to the balance the power centers the Constitution also subscribes to an ideology of Separation of Power, which purported for mutual exclusivity in the lapse of time it has been reconceptualized to mutual checks and balances. In the limits prescribed by the said doctrine, the Judicial review becomes an essential facet of the Parliamentary Democracy in order to make certain the Constitutional order and for the survival of the Constitutional values in this country.


*3rdYearB.A., LL.B.,( Hons.)Karnataka State Law University’s Law School, Karnataka.

**4th Year B.B.A., LL.B.(Hons.) Karnataka State Law University’s Law School, Karnataka.

[1]. SeeSpecial Reference No.1 of 1964 case (Keshav Singh’s case) 1965 (1) SCR 413; KesavanondaBharati v. State of Kerala, 1973 Suppl. S.C.R. I;  Indira Nehru Gandhi v. Raj Narain, (1976) 2 S.C.R 347; A.D.M. Jabalpur v, ShivakanthSukla, A.I.R. 1976S.C. 1207; Peoples’ Union for Civil Liberties v. Union of India, AIR 2003 SC 2363, para.53;See also, Vriend v. Alberta, 1998(1) SCR 493 of Canada; International Transport Roth Gmbth vs. Home Secretary 2002(3) WLR 344 of U.K.

[2]. SANFORD LEVINSON, FRAMED AMERICA’S CONSTITUTIONS AND THE CRISIS OF GOVERNANCE 253 (2010).

[3]. See for example Beijing Statement of Principles of the Independence of the Judiciary in the Law Asia Region, adopted by Conference of Chief Jusitices Law Association for Asia and Pacific, held on August 1997 in Beijing; Basic Principles on the Independence of the Judiciary, adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Milan from Aug. 26 to Sept.6,1985 and endorsed by G.A.Res. 40/32 of Nov.29, 1985 and 40/146 of 13 Dec.13, 1985;Basic Principles of the Independence of judges and Lawyers, G.A. Res. 32, U.N. GAOR 40th Sess., Supp. No. 53, at 205, U.N. Doc. A/40/53 (1985).

[4]. BalKishanGirivs State Of U.P,para 18, decided on 28 May, 2014.See alsoM. Krishna Swami vs Union Of India &Ors, AIR 1993 SC 1407, para.68; D.K. Pariharvs Union Of India and Anr, AIR 2005 Raj 171, RLW 2005 (3) Raj 1783, 2004 (4) WLC 724, para.31; C. RavichandranIyervs Justice A.M. Bhattacharjee&Ors, 1995 SCC (5) 457, JT 1995 (6) 339; Sub-Committee On Judicial … vs Union Of India and Ors, 1992 AIR 320 1991 SCR Supl. (2) 1, 1991 SCC (4) 699; In re Mason, 916 F.2d 384, 386 (7th Cir. 1990).

[5] . SeeRepublican Party of Minn. v. White, 536 U. S. 765, 793 (2002); MODEL CODE OF JUDICIAL CONDUCT R. 1.2 cmt.3 (2007).

[6]. M.B. Sanghi, Advocate v. High Court of Punjab and Haryana &Ors., AIR 1991 SC 1834.See also IBA Minimum Standards of Judicial Independence, 1982; UN Basic Principles on the Independence of the Judiciary, 1985; Singhvi Declaration, 1989; The Universal Charter of the Judge, 1999; Beijing Statement of Principles of the Independence of the Judiciary, 1997; Latimer House Guidelines, 1998; The European Charter on the Statute for Judges, 1998; Bangalore Principles of Judicial Conduct, 2002 .

[7].  ALEXANDER HAMILTON, FEDERALIST NO. 78. Cited in: DONALD P.KOMMERS, JOHN E.FINN AND GARY J.JACOBSON, AMERICAN CONSTITUTIONAL LAW- LIBERTY, COMMUNITY AND BILL OF RIGHTS, 751 (2004).

[8]. Cited in: Juanita Bing Newton, Raising the Age of Criminal Responsibility in New York: A Judge’s Observation, in BLACK GIRLS AND ADOLESCENTS – FACING CHALLENGES 337 (Catherin Fisher Collins eds., 2015).

[9]. Provisions as to the judiciary in India are contained under the titled ‘The Union Judiciary’, ‘High Courts in the States’, and ‘Subordinate Courts’ respectively. The unique feature of the Indian Judicial system, contrary to other federal system like United States of America, is integrated instead of separate hierarchies of federal and State Courts.  For the entire republic of India, there is one unified judicial system, one hierarchy of Courts, with the Supreme Court as the highest court and also as the arbiter in matters of relations between the Union and the States and the States.  SeeConstitution of India, 1950, (hereinafter INDIA CONST)pt.V, ch.IV, art.124-147; pt.VI, ch.V, art.214-232; pt.VI ch.VI, art.233-237.

[10]Dr. Rajeev, “Parliamentary Democracy in Indian Political Environment”, International Journal of Computing and Corporate Research, Volume 4 Issue 6 November 2014, p. 03. 

[11] Article 75 (3) of the Constitution reads, “The Council of Ministers shall be collectively responsible to the House of the people” and under Article 75 (3) it is clearly provided that the Cabinet is responsible to the Legislature.

[12] Dicey, The Law of the Constitution, pp. 39–40.

[13] Mitchell, Constitutional Law, pp 21–22.

[14]Lord Langdale, in Dean of Ely v Bliss (1842) 5 Beav 574, 582. See also Thoburn v Sunderland Council [2002] EWHC (Admin) 934, [2003] QB 151.

[15]Bhiku Parekh, “The Constitution as a Statement of Indian Identity”, Politics and Ethics of the Indian Constitution, Ed., Rajeev Bhargava, 1st ed., (New Delhi: Oxford University Press India, 2008), pp.44,47.

[16] O. Chinnappa Reddy, The Court and the Constitution of India, 1st ed., (New Delhi: Oxford University Press India, 2008), p.21…………………………………………………………………………

[17] AIR 1949 Journal 36.

[18]The words of UpendraBaxi, cited inG.B.Reddy, Judicial Activism in India, 2nd ed., (Hyderabad: Gogia Law House, 2013), p.11.

[19]G.B.Reddy, Judicial Activism in India, 2nd ed., (Hyderabad: Gogia Law House, 2013), p.9.

[20] P. IshwarBhat, “Reflections on the Life and Works of Dr.Durga Das Basu, Constitutionalism and Constitutional Pluralism, P. IshwarBhat Ed., 1st ed., (Gurgaon: Lexis Nexis, 2013), pp.8,9.

[21]Supra at 3, p.300.

[22]“Power tends to corrupt and absolute power corrupts absolutely. Great men are almost always bad men, even when they exercise influence and not authority; still more when you superadd the tendency of the certainty of corruption by authority.”

[23] R.F.V. Heuston, Essays in Constitutional Law, 2nd ed., (New Delhi: Universal Law Publishing Co. Pvt Ltd., 2011), p.1.

[24]F.S.Nariman, “The Silences in our Constitutional Law”, Constitutionalism and Constitutional Pluralism, IshwarBhat Ed., (Gurgaon: Lexis Nexis, 2013), p.39.

[25]H.M.Seervai, “Parliament and The Constitution”,EvokingH.M.Seervai, Feroza H. Seervai Ed., (New Delhi: Universal Law Publishing Co., 2005),p.165.

[26]4 Wash. U. Jurisprudence Rev. 325 2011-2012, p. 327.

[27]C.K.Takwani, Lectures on Administrative Law (2008) p.31.

[28] I. P. Massey, Administrative Law, 8th ed., (Lucknow: Eastern Book Co., 2012), p. 37.

[29] . Article 1 of Constitution of United States, 1787.

[30] .  Section 1, 61,  and 71 of Commonwealth of Australia  Constitution Act, 1900.

[31] Professor K.T.Shah wanted to move an amendment that suggested the insertion of a new Article in

the Constitutional to effect the incorporation of the doctrine. This new article, that is, Art.40 (A)

provided that ―There shall be a complete separation of powers as between the principal organs of the

State viz. the legislature, the executive and the judiciary.‖ CAD vol.7 at 958 cited in C.H.Alexandrowics,

Constitutional Developments in India 109 (1957).

[32]CAD vol.7 at 956 cited in H.R.Khanna, Making of the Indian Constitution 69 (1957).

[33] (1973) 4 SCC 225

[34] (1976) 3 SCC 321

[35]Arts.50, 121, 122, 211 and 212 of the Constitution of India.

[36] K. Venugopal and V. SudhishPai, “Meaning and Source of Legislative Privileges”, ROIL Legislative Privilege in          India , 1st ed., (Nagpur: LexisNexis Butterworths Wadhwa,2011), pp. 48, 49.

[37]Ibid, pp. 49, 50.

[38]G.W.Paton, A Textbook of Jurisprudence, 4th ed., (Oxford: Oxford University Press, 2007), p.332.

[39]Lord Steyn, “The Weakest and Least Dangerous Department of Government”, (1997) P.L. 84 at p. 86.

[40]R. v. Secretary of State of Home Department, [2002] Q.B. 129.

[41]R. v. Secretary of State for Transport, [2002] EWHC 2516.

[42]R. v. Secretary of State for Defence, [2003] Q.B. 1397.

[43]R. v. Secretary of State for Foreign Affairs, [1995] 1 W.L.R. 386.

[44] Stanley de Smith, De Smith’s Judicial Review, 7th ed., (London: Sweet and Maxwell, 2013), pp. 10, 11.

[45]77 Eng. Rep. 646 (1610).         

[46](1701) 12 Mod.669, 687.

[47](1803) 1 Cr. 137.

[48] Ibid.

[49]AIR 1950 SC 27.

[50]AIR 2007 SC 861.

[51] Christopher L. Eisgruber, Constitutional Self-Government, (Cambridge: Harvard University Press, 2001), p. 76.

[52]AIR 1980 SC 1789.

ROLE OF CONSTITUTION OF INDIA IN ENVIRONMENTAL LAW: SURYANSH PANDEY

ISSN: 2581-8465

Role of Constitution of India in Environmental law

Author: Suryansh Pandey

Abstract:

This study examines the need for protection and conversion of the environment i.e. reflected in the framework of the India Constitution.

By the time passed Constitution has amended to insert separate chapters for fundamental duties, as Ar.51A(g) and Ar.48A are the most basic fundamental duties assigned to an individual and states for the protection of the environment. The study also includes the other Act’s issued by Central Govt. of India such as The National Green Tribunal Act, 2010 which came into force by 18 October 2010, The Air Act, 1981 which came into force for controlling and abatement of air pollution thus similarly The Water Act, 1974 and etc.

Although the Supreme Court has also played a great role in setting up this environmental law as for the protection of life on the personal right does. After the Bhopal Gas tragedy the Govt. of India enacted Environment (protection) Act, 1986 which was a very special step taken by the judiciary and so on.

Introduction

The year 1972was a landmark in the history of environmental management in

India. In February 1972, a national committee on environmental planning and coordination (NCEPC) was set up in the department of science and technology, which was later established as the National Committee on Environmental planning (NCEP).

Before this, the environmentalism was with the passage and codification of Acts, as of Indian Penal which is passed in 1860 which use to penalizes person(s) responsible for causing defilement of water of public reservoirs with imprisonment or fine. In collaboration, The Indian Easement Act 1882 protects ‘unreasonable’ pollution by upstream users, and many more like this. (Delhi)

In 1986 as a fallout of the Bhopal gas tragedy, the parliament passed the Environment Protection Act (1986) (Legal Bites, 2016)

In December 1993, the MoEF completed its Environmental Action Plan to integrate environmental considerations into developmental strategies. (Ministry of Environment and Forest, 1993)

 Environment and constitution of India

Here we are talking about constitution over environment, which mainly provides us the fundamental rights and duties of an individual and much more. Even it’s also a fundamental right to live in an unpolluted environment and a fundamental duty of every individual to maintain the purity of that environment.

The constitution has a mandate and bounded to protect and improve the environment. The Indian constitution contains specific provisions for environmental protection. Although the Constitution of India had no direct provisions for environmental protection by 42nd Amendment the Constitution introduced direct provisions in 1976 for protection of the environment, added Ar.48A to directive principles to state policy. (article) This states to protect and improve the environment and to safeguard the forests and wildlife of the country. Ar.49A provides that “the state shall endeavor to protect and improve the environment and to safeguard the forests and wildlife of the country.” This imposed a responsibility on every citizen in the form of fundamental rights. (constitution of India). The Article 51A (g) which deals with Fundamental Duties of the citizens states: “It shall be the duty every citizen of Indian to protect and improve the natural environment including forests, lakes, rivers, and wildlife, and to have compassion for living creatures” (constitution of India)

Ar.253 states that “Parliament has the power to make any law for the whole or any part of the Country for implementing any treaty, agreement or convention with any other country” as also Ar.73 talks about “Extent of executive power of the Union, (1) subject to the provisions of this Constitution, the executive power of the Union shall extend. (2)Until otherwise provided by Parliament, a state and any officer or authority of a state may, notwithstanding anything in this article, continue to exercise in matters with respect to which has power to make laws for the state such executive power or function as the state or officer or authority thereof could exercise immediately before the commencement of this constitution council of ministers.” (constitution of India)

In Stockholm there was an emergence concept of sustainable development (Gulf goans Hotels Co. ltd. & Anr vs Union Of India & Ors, 2014) which mean “development that meets the needs of the present without comprising the ability of the future generations to meet their own needs” (Vellore Citizens Welfare Forum vs. Union Of India, 1996) therefore under Ar.253 Parliament has the power to legislate on all matters linked to the preservation of natural environment as because it also comes under the sustainable development. Parliament’s use of Article 253 to enact the Air Act and Environment Act confirms this view.

Some of the important legislations for environment protection are as follows:

  • The National Green Tribunal Act, 2010
  • The Air (Prevention and Control of Pollution) Act, 1981
  • The Water (Prevention and Control of Pollution) Act, 1974
  • The Environment Protection Act, 1986
  • The Hazardous Waste Management Regulations, etc. (Vinay Vaish, Partner, Vaish and Hitender Mehta, 31 august 2017)

The National Green Tribunal Act, 2010

The NGT was established on October 18, 2010, under the National Green Tribunal Act, 2010 passed by the central govt. the objective of the central govt. was to provide a specialized forum for effective speedy disposal of cases pertaining to environment protection, conservation of forests and for seeking compensation for damages caused to people or property due to violation of environmental laws or conditions specified while granting permissions.

NGT has the power to hear all civil cases relating to environmental issues and questions that are linked to the implementation of laws listed in schedule 1 of the NGT Act.

NGT has not been vested with powers to hear any matter relating to the wildlife (protection) Act,1972, the Indian Forest Act,1927 and various laws enacted by States relating to forests, tree preservation, etc. Therefore, specific and substantial issues related to these laws cannot be raised before the NGT. You will have to approach the State High Court or the Supreme Court through a Writ Petition (PIL) or file an Original Suit before an appropriate Civil Judge of the taluk where the project that you intend to challenge is located. For every application where no claim for compensation is involved, a fee of Rs. 1000/- is to be paid. (Bhargav) (Bhargav, Conservation India, 2011)

The Environment Protection Act, 1986

Environment Protection Act, 1986 is an Act of the Parliament of India. In the wake of the Bhopal Tragedy, the Government of India enacted the Environment Protection Act of 1986 under Article 253 of the Constitution. Passed in March 1986, it came into force on 19 November 1986. It has 26 sections. The purpose of the Act is to implement the decisions of the United Nations Conference on the Human Environments. They relate to the protection and improvement of the human environment and the prevention of hazards to human beings, other living creatures, plants, and property. The Act is an “umbrella” legislation designed to provide a framework for central government coordination of the activities of various central and state authorities established under previous laws, such as the Water Act and the Air Act.

HISTORY-
This act was enacted by the Parliament of India in 1986. As the introduction says, “An Act to provide for the protection and improvement of environment and for matters connected therewith: WHEREAS the decisions were taken at the United Nations Conference on the Human Environment held at Stockholm in June, 1972, in which India participated, to take appropriate steps for the protection and improvement of human environment. AND WHEREAS it is considered necessary further to implement the decisions aforesaid in so far as they relate to the protection and improvement of environment and the prevention of hazards to human beings, other living creatures, plants, and property”. This was due to the Bhopal Gas Tragedy which was considered as the worst industrial tragedy in India.

Sections- 

This act has four Chapters and 26 Sections. Chapter one consists of Preliminary information such as Short Title, Extent, Date of Commencement and Definitions. The definitions are given in the second section of the Act. Chapter 2 describes the general powers of the Central Government. Section 3 gives the Central Government the power to take action to protect the environment. Section 4 allows the government to appoint officers to achieve these objectives. It also gives the government the power to give direction to closure, prohibition or regulation of the industry, process, etc. It also gives Central Government the power to issue rules to regulate environmental pollution. The act has provisions for penalties for contravention of the provisions of the act and rules, orders and directions. It also gives detail if the offence is done by a company or government department. It says for such offence the in-charge and head of department respectively would be liable for punishment. (Legal Bites, 2016)

The Water Act, 1974

The Central Pollution Control Board, and State Pollution Control Boards composition, terms and conditions of service of members are defined in Sections 3-12 of water Act, 1974

The Board advises the government on any matter concerning the prevention and control of water pollution. It coordinates the activities and provides technical assistance and guidance. This policy sets the standards and penalties for non-compliance for polluting bodies.

The Government has the power to restrict any unit and to take samples of effluents and get them analyzed in Central or State laboratories. Whoever fails to comply with any provision of this Act is punishable with imprisonment, fine or with both. 

The Central Board may perform all or any of the following functions, namely,-

advise the Central Government on any matter concerning the prevention and control of water pollution; co-ordinate the activities of the State Boards and resolve disputes among them; provide technical assistance and guidance to the State Boards, carry out and sponsor investigations and research relating to problems of water pollution and prevention, control or abatement of water pollution; plan and organize the training of persons engaged or to be engaged in programs for the prevention, control or abatement of water pollution on such terms and conditions as the Central Board may specify; organise through mass media a comprehensive programme regarding the prevention and control of water pollution; collect, compile and publish technical and statistical data relating to water pollution and the measures devised for its effective prevention and control and prepare manuals, codes or guides relating to treatment and disposal of sewage and trade effluents and disseminate information connected therewith; lay down, modify or annul, in consultation with the State Government concerned, the standards for a stream or well; plan and execute a nation-wide programme for the prevention, control or abatement of water pollution; perform such other functions as may be prescribed.

These were the most important legislations’ made by the govt. to bring reform in the Environment and the laws under it. (Forests, 2009)

Kedarnath case:-

In the State of Himachal Pradesh, Span motel, owned by the family members of Shri Kamal Nath, Minister for Environment and Forests, Govt. of India diverted the Course of river Beas to beautify the motel and also encroached upon some forest land. The apex court ordered the management of the Span motel to hand over forest land to the Govt. of Himachal Pradesh and remove all sorts of encroachments. 

The Court delivered a landmark judgment and established the principle of exemplary damages for the first time in India. The Court said that the polluter must pay to reverse the damage caused by his act and imposed a fine of Rs Ten Lakhs (Rs 10,00,000) on the Span motel as exemplary damages. The Supreme Court of India recognized Polluter Pays Principle and Public Trust Doctrine. (article)

OLEUM GAS LEAK CASE, 1986

M C MEHTA, who was single-handedly responsible for making environmental degradation a part of public discourse, says it is vital that PILs have no ulterior motive “GAS HAS leaked. The gas is traveling. I am worried about your lordship’s life”. Environmental lawyer Mahesh Chander Mehta relives what he told the Chief Justice of India P.N. Bhagwati on December 4th, 1985. Oleum gas had just leaked from the Shriram Chlorine plant in Najafgarh, and Delhi had panicked.

By a strange coincidence, M.C. Mehta had filed public interest litigation against the Chlorine plant a month earlier (before the gas leak) and was scheduled to argue another case before the Chief Justice of India on December 4th. When the matter came up, Mehta referred to the Oleum gas that had leaked just three hours earlier. “The gas leaked at 11 am; the case was listed and heard at 2 pm; the court immediately issued a notice” gushes Mehta. “No case has been heard this quickly”. Nor perhaps judged so decisively. In siding with Mehta, the Supreme Court punished the company heavily; the entire complex eventually shut down. More far-reaching, the Supreme Court created the `absolute liability principle’ — companies engaged in inherently hazardous activities had absolutely no excuse when an accident occurred.

The court held that any enterprise that is engaged in an inherently dangerous activity is `absolutely’ liable to compensate all those affected by an accident. The key feature of the judgment was the principle of `absolute liability’, in which no exceptions (such as an `act of God’) are brooked. (M.C.Mehta And Anr vs Union Of India & Ors, 1987)

The case took place soon after the Bhopal Gas Tragedy and was keenly watched as an instance of how the courts would deal with companies responsible for environmental disasters. Unfortunately, the complex court litigation around the Bhopal Gas Tragedy was an example of what not to do in such cases.

Kendra v State of UP, also known as the Dehradun quarrying case, the Supreme Court of India has held that pollution caused by quarries adversely affects the health and safety of people and hence, the same should be stopped as being violative of Article 21. In this case, the Supreme Court for the first time held that the right to wholesome environment is a part of the right to life and personal liberty guaranteed under Article 21 of the Constitution.

Further, in the case of Subhash Kumar v State of Bihar, again the apex court held that the right to get pollution-free water and the air is a fundamental right under Article 21.  Following this decision, the right to the pollution-free environment was incorporated under the head of the right to life and all the law courts within the Indian Territory were bound to follow the same. This laid down the foundation of environmental litigation in India.

Similarly, public health and ecology3 were held to be the priorities under Article 21 and the constitution of a green bench was also ordered by the Supreme Court.

In the case of Ratlam Municipality v Vardichand, where the problem of pollution was due to private polluters and haphazard town planning, it was held by the Supreme Court that pollution-free environment is an integral part of the right to life under Article 21. (Municipal Council, Ratlam vs Shri vardhichand & Ors, 1980)

Conclusion:-

Human beings can ensure the environmental balance, fundamental equality and adequate conditions of life in an environment. There is an urgent need to formulate laws keeping in mind the fact that those who pollute or destroy the natural environment are not just committing a crime against nature, but are violating human rights as well. The advancement of the relationship between human rights and environment would enable the incorporation of human rights principles within an environmental scope which is much needed for the protection of the environment and its development.

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