Rostrum's Law Review, Vol I, Issue I

PUBLISHED QUARTERLY VOLUME: ONE ISSUE: ONE YEAR: 2013
ROSTRUMs LAW REVIEW

SPEAK UP PUBLICATIONS A DIVISION OF ALKEMIA LEGAL EDUCATION VENTURES PVT. LTD.
First Issue
ROSTRUMs LAW REVIEW

Volume : I Issue: I Inaugural Issue - May - 2013
Mode of Citation: RLR (1) 2013
Guest Editor
Prof. (Dr.) G. P. Tripathi

Director, MATS Law School, Raipur, Chhattisgarh, India Managing Editor
Anurag Parihar
CEO, Alkemia Legal Education Ventures Associate Editors
Aounkar Anand
COO, Alkemia Legal Education Ventures
M. B. Elakkumanan
CAO, Alkemia Legal Education Ventures Editorial Assistants
S. Nandini Pahari
Editor, I Hate Criminal Law
Sanjeev Sivan
Editor, I Hate Criminal Law
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MESSAGE FROM THE EDITORIAL BOARD

Alkemia Legal Education Ventures is proud to announce the publication of the first volume of Rostrums Law Review. This Journal provides a glimpse into a few of the many high quality research activities conducted by the talented researchers in the field of law. The Journal is a compilation of outstanding research papers from numerous disciplines of law submitted by students, faculties and legal professionals who have been involved in research, scholarly, and creative activities. We would like to thank Prof. Dr. G. P. Tripathi for writing for the inaugural issue and also for his kind support in editing and publication of the Journal. We would also like to thank all the contributing authors for providing such a rich variety of outstanding research articles on a broad range of exciting topics. If you have any questions or comments about the Journal, or would like to receive a printed copy of the most recent volume of the Journal, please contact the editorial team by sending an email to journal@rostrumlegal.in The Journal is also available online, please visit the following website:
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The Editorial Board
Rostrums Law Review
ROSTRUMs LAW REVIEW

Volume I | Issue I | MAY 2013 Alkemia Legal Education Ventures Pvt. Ltd.
TABLE OF CONTENTS
1. AUTHOR PROFILES 2. ARTICLES i 1 97
CRIMINALIZING ROMANCE; WHY DO WE NEED TO CREATE NEW CATEGORY OF CRIMES? Prof. (Dr.) G. P. Tripathi 1 CLIMATE CHANGE: PARAMOUNT CHALLENGE FACING EARTH Mr. Chhayank Nagpal 22
CONSTITUTIONAL AND LEGAL DIMENSIONS ON THE DOCTRINE OF EQUAL PAY FOR EQUAL WORK: AN INDIAN PERSPECTIVE Mr. Ratemo Tom Junior 30 LEGISLATIVE AND JUDICIAL APPROACH TOWARDS LAW OF RAPE Mr. Sharathraj P. A. THE RIGHT TO KILL: THE CASE OF THE BATTERED WOMEN Mr. Shreyas Gupta ROLE OF MEDIATION IN THE ARENA OF HUMAN RIGHTS DISPUTE Mr. Ashish Kumar RULE OF LAW AND SOUTH ASIA: A VIEW FROM THE TOP Mohammad Rubaiyat Rahman 37 48 58 64
SUMMARY DISMISSAL IN LABOUR LAWS: NEED TO REFORM EXISTING LAWS IN INDIA Miss. Rishika Arora 72 VALUE CREATION THROUGH MERGERS & ACQUISITION Ms. Soumya Kanti Sinha & Mrs. Anupam Sharma 3. LEGISLATIVE COMMENTS 86 98 - 107
AN ANALYSIS ON THE STATUS OF ARMED FORCES SPECIAL POWERS ACT IN NORTHEAST INDIA Mr. Angshuman Hazarika 98
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AUTHOR PROFILES
Prof. (Dr.) G. P. TRIPATHI
DIRECTOR, MATS LAW SCHOOL, RAIPUR profgangeshwarprasad@gmail.com
MR. CHHAYANK NAGPAL

IIND YEAR LAW STUDENT, AMITY LAW SCHOOL, DELHI chhayank.nagpal@gmail.com
MR. RATEMO TOM JUNIOR

B.COM., LL.B., LL.M., PH.D., RESEARCH SCHOLAR, DEPT. OF PG STUDIES IN LAW DR. BABASAHEB AMBEDKAR MARATHWADA UNIVERSITY, AURANGABAD, MAHARASHTRA, juniortom2001@yahoo.com
MR. SHARATHRAJ P.A.

RESEARCH SCHOLAR, DEPARTMENT OF STUDIES IN LAW, UNIVERSITY OF MYSORE, MYSORE sharathrajlaw@gmail.com
MR. SHREYAS GUPTA

BA LLB (HONS.), IIND YEAR, JINDAL GLOBAL LAW SCHOOL, SONIPAT 11jgls-sgupta@jgu.edu.in
MR. ASHISH KUMAR

UNIVERSITY TEACHING ASSISTANT/PH.D. SCHOLAR FACULTY OF LAW, UNIVERSITY OF DELHI ashllm.du@gmail.com
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z MR. MOHAMMAD RUBAIYAT RAHMAN

STUDENT, LL.M, SOUTH ASIAN UNIVERSITY, NEW DELHI rubaiyat007@gmail.com
MS. RISHIKA ARORA

VTH YEAR LAW STUDENT, AMITY LAW SCHOOL, DELHI rishika.arora@hotmail.com
MS. SOUMYA KANTI SINHA

LL.M., NALSAR, HYDERABAD, LECTURER, DELHI INSTITUTE OF RURAL DEVELOPMENT SCHOOL OF LAW, GGS INDRA PRASTHA UNIVERSITY, DELHI soumya798@gmail.com
MRS. ANUPAM SHARMA

H.O.D., DELHI INSTITUTE OF RURAL DEVELOPMENT SCHOOL OF LAW, GGS INDRA PRASTHA UNIVERSITY, DELHI anupamsharma3344@gmail.com
MR. ANGSHUMAN HAZARIKA

IIIRD YEAR LAW STUDENT, RAJIV GANDHI NATIONAL UNIVERSITY OF LAW, PATIALA angshuman7@sify.com
DISCLAIMER
The Articles/Research Papers/Comments/Review published in Rostrums Law Review and views expressed there in are personal views of the authors. The Board of Editors or Editor in Chief, Printers, Publishers of Alkemia Legal Education Ventures Pvt. Ltd. shall not be liable for anything expressed therein. Authors alone are legally responsible for everything including views or contents of the matter included in Rostrums Law Review. Articles, Legislative Comments, Case Comments etc. are purely an academic venture
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CRIMINALIZING ROMANCE; WHY DO WE NEED TO CREATE NEW CATEGORY OF CRIMES?

PROF. (DR.) G.P. TRIPATHI Life is surety of death. It is at mercy of death. Life starts with wake up in each day and ends with sleeps each night. Whether one would wake up is beyond ones control. So end up each day as if that is the end and thank God when you get another day. Day is for action, might is for romance. No one can cut short this natural phenomenon. Let us train our mind to finish up the day enjoying complete and in order so that your successor may pick it up from there. This is reality. Keep in view and criminality would appear less. It is well known that deviations would be there but no doubt, it would regulate a bit. When you once realized that time is short or there is no time, value of time is actually realized and available time is properly utilized. Crime is creation of empty mind, It is deviation. Rape is product of time and circumstances. Just come out of these. There would be no rape. For deviations, one cannot spoil those moments that are for romance. Romance is regulated by institutions of marriage and family. Five basic truths that are mysterious to the people are 1; Science of God, Jiva (constitutional position of living entities), Prakriti (material nature), time (Kal duration of existence of whole Universe or manifestation of Prakriti) and Karma (Activity). First three are eternal, permanent, non-changing; fourth is semi-permanent and 5th is changing and temporary; creates results; pain or pleasure, (material nature). The material nature expresses in three modes qualities, all embodied souls are under the control of these three qualities (modes); goodness, passion and ignorance (Sat, Rajas and Tamas). All the three are in every living entity. It is matter of time (Kal) as to which prevails when. A crime is committed when tamoguna (Passion) dominates. Men become Rakshas (demon). Kal (time and place) plays vital role in what dominates when. kal includes time, place and the circumstances of incident. Crimes against women are controlled and are producing time (kal). Prakriti is inferior nature or inferior Prakriti like lower animals, creature or creepers and the superior Prakriti that includes living entity (human being). The meeting of prakriti (female) and
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z Purush (male) procreate, next generation. This meeting/mating is called sex relation. Ahaar (food) sleep, fear and sex are four actualities common to all, creatures, creepers, animal, beasts, insects and men. Intellect (near ksheer vivekini) is peculiar gift only to human being; others do not have it. Animals have impulse not buddhi. Intellect controls mind and mind controls sense which are 10 in numbers 5 relate to Gyan (knowledge) and are called Gyanendriya five relate to Karma and are called Karmendriya2. A conditioned Jeev by nature multiplies in whatever yoni that Jeev is. To multiply, needs females cooperation. It is this that is identified as family single family, extended family, joint family. Hindu Undivided family. Basic knowledge is that one must know that we are not this material body. It is materially contaminated; it is conditioned. Hence a false impression is created that is ego i.e. I, I ness myness. The human body has a purpose that is liberation of soul caged in it; self realisation; mukti from re-birth cycle; soul merging in super soul; atma into Parmatma. Marriage is very important connecting factor of regulated sex behavior in actual social life; Live-in relations, same sex relations, gay relations, lesbianism, homosexuals, straight couple relations and friendships for fun like B.F., G.F., F.F., M.F., B.F.3, (friend for benefit) and F.C. (friend on call) are deviations of relationship in nature of marriage. EIGHT KINDS OF MARRIAGE AND TWELVE KINDS OF SON 4 Marriage is sacrosanct union of the two opposite sexes, it is union of two souls. It is union of two families, two sapindas, two sakulyas, two samanodaks, their agnets, cognates and collaterals. Our society was as such so systematical that wherever, any such union was by right or by wrong; cloak of this concept was used to cover it up to save the life of girl and the boy. Factum valet was made use of. These were of eight kinds: four approved and four disapproved. Approved forum included, Brahma, Daiva, Aarsa, Prajapatya. Four unapproved included; Asura, Gandharva, Rakshas and Pishach marriage. The order shows better to worst. First category: Sons are kinsmen and heirs. These are Aurasa(Begotten through legally wedded wife), patrikputra,
kshetraja(Begotten through not legally wedded wife), Dattaka, (Adopted), Kritrim(appointed), gudhotpanna(secretly born, father not known) and apavindha (cast off or foundling). Second Category: Kinsmen only; not heirs. Kanina (born through maid servant), Sahodha (got in dowry
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z brought by wife), Kriita (purchased), Paunarbhava (Begotten of wife married to the other), Swayamdatta (self-given) and Sraud (Sudra woman and Brahman). LIVE IN RELATION AND LIVE TOGETHER RELATION These are different; in live in relations, sharing of bed and board in two of opposite sex is involved. It is normally pre marriage decision making process and tends to result finally in marriage or bye-bye, In living together, sharing of bed is not involved, home is shared, health may be shared but bed is not shared. Sex needs not to be. A widow-widower living together and sharing company, widow sister living with widower brother, widower father and widow daughter living together in same house; All these are arrangements to survive. Even senior citizen incapable of sex may live together tied by marital relations or even without it for survival. WHETHER TRANSGENDERS LIVING TOGETHER CAN BE LIVE IN PARTNERS? 5 Deformities in organs of creation cannot be ground for denying civil night to few unfortunates. They can live together but this living together cannot be termed marriage: lest death of marriage as institution. Lesbianists, homosexuals, gays claim status and recognition of their living together as marriage. These claims would cause death of marriage as social institutions; though, birth of new concept of family is quite possible thereby. In this kind of family concept, company is more important than sex. Romance is there; contentment is enjoyed and even new way of procreation (Adoption) not through sex can also develop. Sex is not necessary when sex organ is absent or deficient but why others possible be denied? The concept of marriage can be reread as a relation for company and comfort. Once deviation starts and alternative to the pious age old institution of family and marriage are searched, there is no end to fall down. In the marriage, sex is not primary object. It is ancillary to the relationship. It is for the procreation of dharmaputra that is religious duty for getting rid of Pitri rin. The concept of marriage was later on misunderstood. Particularly when Niqah was said to be for legalization of sexual intercourse for procreation of children (Abdul Qadir v. Salima 6 ). In Niqah sex got primacy and purity was lost. The Christian marriages are sex relations for life (Hyde v. Hyde7)
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z ROMANCE (SEX) FROM DHARMA TO PLEASURE Osho Acharya Rajnish wrote from sambhog to samadhi, from sex to super consciousness. He advocated a thesis that the serenity one realises after sex is identical to that one enjoys in samadhi or same as one gets after burning dead body of ones dear in cremation place.8 Sex causes death (end) of romance. Romance (sex) is most pious dharma of legally wedded couples of any caste, colour, creed, religion or community. Unregulated sex of men with any or many is lower even to beastly behaviour. Animals, insects, creatures, creepers and the beasts all multiply at given time and place. Period is fixed. None of these touch the female that is pregnant or unwilling or not ready for sex. Men are the only special where in there is no security against any, of any age, or period, any time or any place. This phenomena in sex is however not new. Manu has talked about it. It is there in Manusmriti, that even son and mother should not meet in seclusion. In seclusion or darkness, two opposite sexes become men and women alone. No relations survive. Sex instinct may arise and Rakshas in men/women may rise. The relations turn out to be one of two opposite sex. (What a sublime law is, does it lay down?) A curative and preventive way out; The circumstances are determinants of safety and security. Avoid places of loneliness, seclusion, darkhours, late night movements, lonely movements, the risk of sex victimisation is minimized. Manu is credited to have said that women always need to move in company of a male, of father till maiden, of husband, when married, of sons when elderly, she should never move out alone and unaccompanied. The reason sex of women is jealously guarded. This passage is read as manuvadi thought against woman, liberty but in fact, it is not so. Liberty does not mean liberty that eats oneself; It does not mean Bhasmasuri liberty9. Liberty is never absolute. It is by nature restricted. Limits of liberty are earmarked. My liberty ends, where liberty of my neighbors begin, auto-regulation, auto control. I dont care attitude is legally impermissible; one has to care if not for oneself, but for the others. Driver of a vehicle has liberty to drive at any speed, the engine may not have limits but the driver has it. He has to care for the end, maintain a balance in speed and control, if not for himself, for others using the road.
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z So the principle is, care for yourself, so that others care for you. If you yourself do not care for yourself why will the other or others care for you? Collision has to be avoided or faced. If latter, why blame police or the system for consequences. Many of the cases, involving unfortunates are late evening occurrence, here in liberty of I dont care clashed with liberty of non-caring. All these could have been avoided and must have been avoided by the I dont care victims or immature libertarians. This is no case means our daughters need to be caged and put under lock and key. This also does not means, our girls do not deserve liberty; this also does not advocate slaving our ladies. This only means awareness of situations around and action accordingly. Attraction towards opposite sex is natural in teenagers; curiosity to know the opposite sex is natural; this creates attraction to reach the opposite sex. Sometimes it is confused with Love, called Love at first sight. It should be clear that journey to love starts out of this desire to know. It needs not end in love. Make up or break up like childlike interactions occur. This process is sometimes rushed up to conclude to be love or to be in love. Stalking is one of the ways to make up, dating, mating and others are ways to romance. Juvenile laws must have heart and feeling to distinguish what leads where. Law may not break the hearts and convert something that is romance into criminality. Sex is in some systems claimed to be as natural as tea. There is difference in outlooks of western and eastern cultures. West is open, east is closed, and we in India are closed but pretend to be open. In the process, our children land nowhere; neither open, nor closed, neither eastern nor western and so suffer the casuality which is against culture in east but may not be of same magnitude in west. B.F., G.F., F.F., M.F, F.K. (friends on call) and B.F. (friend on benefit) are drawn from west where sex is tea, thank you sir, thank you madam, the end there after. It is not of East, we are trained in closed culture with an impression that it is backward; everything that comes from west is taken to be forward. When will our children realize that till we are in limits of our dharma, our welfare is secured and guaranteed, when we copy others, that generates disastrous consequences.
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z IS ROMANCE (SEX) FOR THE PLEASURE? No, Free multi partnered sex is sin; It is crime punishable as gang rape. Romance ends when sex begins. Romance is life, sex is death of romance. Romance is emotion, sentiment and has link with heart. Sexual activity is one of the major source of communicable venereal diseases.10 Sexual contacts as such has to be done away with as general rule except one in between married couples. Pre married sex is contrary to the social morals but it changes from society to society and community to community. In eastern culture, it is almost rare and may be consequent to casualities like rape, but in western culture it is not taboo. In some communities, sex prior to marriage is socially approved and marital tie proceeds only when lady gets pregnant. The child belongs to father of the girl. In India, pre-marital sex is crime if girl is less than 18 years of age and it is against her will and without her consent marital sex is crime if wife is below 15 years. Sex may be only for sex. It may not have any purpose i.e. procreation. Sex can be out of wedlock extra marital affair. Sex with purpose in wedlock has a purpose but purposeless sex is rape. WHETHER EARLY MARRIAGE IS A SOLUTION? No conservative ideologies sometimes come out with readymade solution of early marriages. Their stand is that late marriage is one of the major causes of sex related issues. The scriptural laws do provide for child marriages in between 7 to 11 years for girls. Marrying a girl in menses is condemned by scriptures.11 There things since 2500 B.C. have changed. Life expectancy is now longer. Boys and girls are career oriented. Marriage of child is no longer on priority as it was when scriptures were written. Late marriage as such is now in system of the day. Marriage controls frequently sex it is no guarantee against doing away of sex related crimes. Married are experienced and looking into real life. Married are choicest in comparison to unmarreds. Many victims of rape are by married and married women are not in safe zone. IS SEX NECESSARY IN MARRIAGE? 12 No not always; it may only be for company. A new but preventable trend is coming up. These are same sex marriages, the traditional objects of marriage are procreation of children and for legalization of regulated, socially approved sex relations in married couple. The development does not require procreation as an object of marital relations, so sex incidentally irrelevant.
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z Traditionalists in India do not accept non-procreation relations as marriage but Naz foundation view has recognised such relations as valid. It is now for, the Apex Court to decide. Such marriages are only for company. Though this argument was not raised in the Bar in Naz case. Even in traditional marriages, sex and procreation lose importance after sometime. Sex in married life is; day and night only night now and then god knows when. This the reality of sex in actual married life when company alone carries importance, so idea to change in object of marriage is not without substance. It is only question of time. More and more are turning away from marriage which generates lifelong obligation to look after spouse and children when sex almost stops. Why obligation thereafter if sex is the object? The company and confront being object of marriage do not create any problem. There need not be sexual intercourse; there need not be procreation of children. If these are, these are incidental to company and comfort. Sex or no sex, marriage continues. Procreation or no procreation relation survives. SEX WHETHER PIOUS? Eastern culture treats virginity no sex as pious and sex spoils the peity of the women. Marriage is religious and sacramental. Pre-marital sex is taboo in the east. The west is a bit liberal in sex. It is tea for west. Nothing like pious marriage. Indians believe that sex prior to marriage is sin, obviously, pre-marital sex is bad. Such thinking is middle class mentality, for higher classes, sex does not matter whether pre or post marital. It is fun and frolic; indulged and forgotten. Extra marital affairs, pre-marital love affairs, B.F., G.F., F.B. and F.K. are specialties of the high ups. The society tolerates because they are above normal social norms. In lower echelons, sex is on sale for poverty, reasons or for lack of protection or ignorance of law and goondagiri/ dadagiri, money and political influence. High society ruffian commits rape of the lower. No outcry is raised. If any, it is suppressed. It is only when middle class is victim, the issue is raked up. The reason, middle classes are backbone of every society. They assume responsibility of moral policing. IS CIVIL LIFE TO BE KEPT DISCIPLINED AS MILITARY CADRE? Discipline in life is desirable. By and large, it has to be for life, movement and existence but its definition changes when question is where? We have dress code for schools, office, police, army, paramilitary forces, advocates, doctors and others. This is good but after we do not feel
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z comfortable in these after certain hours, we change and become relaxed so are other indicators of discipline. Discipline (strict) is tolerated as it is not natural. It is imposed. It violates nature which is to be free and remain free as free as air. Youth is full of energy and the vitality and is compared to river and rivulets in rainy season. It breaks banks both sides. We regulate by making barrages and bridges across, but leave, sufficient outlets. So for youth, we can devise to regulate by mechanism of law but must leave enough outlets. Laws that plug all outlets will either damage youth and convert these into untimely older or would get themselves broken and this would mean putting them in jail with hard core criminals. So in all those offences that are committed or expected to be so committed, laws cannot be tough lest whole generation would forget romance. Regulate conducts but leave outlets wherein vitality flows. We cannot enforce military type discipline on civilians. WHETHER TOUGH LAW IS GUARANTEE FOR NO VIOLATION OR OF NO OFFENCE IS THAT CAT EGORY: A view, not very correct is; that tough law would prevent commission or repetition of that crime. Death or lifer or lifer or deaths are toughest punishments for murder. Has murder stopped? Or its commission reduced? So is case of trans border terrorism or naxals? The Criminal Law Amendment Act 201313 moots lifer for 20 years or jail till death for rape with murder. Would it succeed in preventing rape? The answer is not so easy. Whether this tough law will succeed in protecting our women form victimized, nothing can be said of the moment. Let us hope, it will have a deterrent effect. LIFE IS ROMANCE AND ADVENTURE: Life is better to travel, than to arrive. What is life and how should one enjoy it. Remember life is not a no life. It has to be enjoyed, it has to be lived, even bad days of life turn to be ways enjoyed in life after these are over. Romance is nature of life. Adventure is way of life. Know more and more, unveil secrets of nature, moon is ours. Move to other planets. Win the adversities, develop technology but spare sometime for yourself. Follow your passion; carry on with your hobby. Routine leading of life may make it dry. Make it juicy, lively. Law must assist in living life. It must be for giving happiness to largest number of people. It must undo pain and suffering. It is for promoting human welfare. It must remove all that obstruct law in its mission.
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z Punishing law breaker is last in the mission of law; the punishment is last option in law. It is and cannot be first or only option. LITERARY ROMANCE 14 Life of every living entity is kept busy for earning bread. During this period, professional or business tension dominates. To get rid of this tension, every person searches avenues to let it off; some find in wine, some in wealth pursuits and some in women, (w.w.w.) some in games and sports, some in writing, some in tours and travel and some in music, dance, art and the paintings. List of hobbies and way of romance are unlimited. It is all to let feelings, sentiments, emotions, love, failure in love to steam of, let off. The romance is natural crave to all. The reel life gives impetus to it. Films are easy modern substitutes to what we used to get in paintings at khajuraho (M.P.) and Konarka (Sun Temple) (Odisha) or what we search for in P.B. Shelly and Rahim. By the turn of events in history, romance became private lifes personal matter. In public shows, exposure of body, nakedness and vulgarity are displayed as romance became matter of criticism in public. Feelings of romance got let off in raunchiness, flirting, cajoling, vulgar jokes of those who indulged and those who suppressed, the things came out in form of stalking, voyeuring, ragging and crimes like rape, gang rape, custodial rapes, attempted misconducts against girl students by the male teachers, against inmates of girl hostels by employees of hostel and criminal conspiracy of women wardens. We can provide outlets to the feelings of romance. We cannot totally stop it. Effort to stop romance may result as casuality to some and gain to none. The deviations can be stopped subject to better outlets being given. Youth is like flooded river. It can be tamed but cannot be stopped let us acknowledge this reality and act without damaging personality of the youth. Is law the only way? Needs to be debated. Criminal law (amendment) Act 2013 proceeds on this thought that law is remedy for every malady. This is totally misconceived, we cannot devise and divide men and women in two water air tight compartments. By nature, these are one, none of the two can survive fruitfully separately. Men need women and women need men. This is nature; Prakriti and Purush, Sky and earth; one cannot alone serve the purpose or complete the mission for which their existence is
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z yoga type training may be experimented in colleges, which may regulate the energy in youth without damaging the personality. The crimes against women are increasing but can we put all our young in jail for every advance they make to girls? Stalking and voyeurism are light, jest, jokes, romances. Penalising these is to put unnecessary checks on ways to romance. Life of youngsters whether boys or girls would become dry and sordid, it is not everything that takes boys and girls nearer is declared crime. Sex includes many things. Stalking necessarily first step to even advance sex or crime. It may be innocent civil way to introduce one to the other. Making stalking a crime proceeds probably on idea that it is first step to rape. It may not be properly conceived. Most of the sex related crimes are first time assaults on the victims, pounced, did and disappeared, never to appear again. Stalking does not precede and when crime is of rape, (higher) and there is no sense in prosecuting accused for stalking when charged with rape. One thing should be clear. Offences against women are social crimes. Remedy for these lies in society. Prevention is better than cure. Social crimes can not be uprooted by law alone. Law would help, would mitigate but would be effective only when imformal law enforcement agencies like parents, teachers, tribal chiefs, panch, sarpanch and village pradhans are out to stop these offences. Police and courts alone can not uproot this category of crime. WHETHER URBAN LIFE CONTRIBUTES TO INCREASE IN OFFENCES AGAINST WOMEN? 15 Youths from rural background are less frank, trained in a culture where in families lived together, in a climate different from what we find in urbanized families, these have money constraints, have urgent need to settle, timid and caring. In this background, these youth suffer from complex, her away from opposite sex, the desire to know, the curiosity is suppressed by their village culture. Their aggressiveness remains subdued and comes out when opportunity comes. Youth in urban culture, are frank and economically well off; deal with attraction towards opposite sex effectively, these are experienced in co-education and take attraction not very seriously but in sports mans spirits. Real problem is, youth of the two coming nearer. One from rural background and the other from urban background. It is here that informal law
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z enforcement machineries are required to be more vigilant, alert and caring. The formal law enforcement machineries police and court have no business. FLIRTINGS WHETHER CRIMES? Flirting is free mixing, free chatting, dating, doting, mating and intimate relations not necessarily pre-marital engagements. This may be friendship and intimacy just for companys sake and as time pass, for and in between adult couples. It is romance cannot be criminalized. Couples sitting in parks, passing time, gossiping everything without topic, visiting pictures in malls or cinema halls, exchanging gifts are enjoyments of purely private nature and law or law enforcement agencies cannot be permitted to peep in private moments of couples in romance. These are harmless flirting and law has to keep itself far away from these incidents. WHAT IS STALKING? Definitions of stalking vary from jurisdiction to jurisdiction. Different definitions may be used in criminal stalking codes and in civil stalking codes for protection order or restraining order purposes. The Stalking Resource Center16 defines stalking as a course of conduct directed at a specific person that would cause a reasonable person fear. Stalking can take a variety of forms. Stalkers may physically follow their victims, call them on the phone, send them letters or packages through the mail or through a courier, bombard their victims with emails or instant messages, photograph them from a distance or with hidden cameras, install surveillance software on their computers, and use global positioning systems (GPS) to track them in their cars. Tracking and intimidating a victim are stalking regardless of the method used. Some of the stalkers behavior may constitute a crime in and of itself (for example, trespassing on her property to peep into her windows or harassing and intimidating her by making threatening telephone calls). However, some stalking behavior is not criminal by itself (following her on a public street; making a non-threatening telephone call). Such behavior may become criminal, however, when it becomes a pattern or course of conduct that places a victim in fear.
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z A criminal code that defines stalking as physically following fails to protect victims who are stalked through the phone, mail, or computer. Similarly, tribal code provisions that limit protection to victims whose stalker possesses the conscious intent to harass or harm their victim do not adequately protect victims. Many stalkers mistakenly believe that they have a relationship with the victim that does not truly exist. They may even erroneously believe that their attentions are welcomed by the victim. This belief, however inaccurate, may render the stalker immune from prosecution if the code requires a conscious intent to harass or harm the victim. Focusing on the effect of the stalkers behavior on the victim provides better protection and safety for Native victims. Tribal stalking codes criminalizing behavior that would cause a reasonable person to fear may be more effective. It is a federal crime to stalk another person across state, tribal or international lines, using regular mail, e-mail, or the Internet. The defendant must have the intent to kill or injure the victim, or to place the victim, a family member, or a spouse or intimate partner of the victim in fear of death or serious bodily injury. This crime is punishable by a period of incarceration from five years to life. WHETHER STALKING IS MORE THAN HARMLESS FLIRTING? If the anti-rape Bill ran into problems in Parliament, one of its most contested provisions was punishment for stalking, voyeurism. Sharad Yadav of the JD(U) famously said trailing a woman was the only way to her heart, raised too much mirth in the Lok Sabha. However, while many parliamentarians felt the legislation was too harsh on this. A little adjustment was made, these are now available in first instance. The fact is that anti-stalking laws, while relatively new, are now in existence in many countries. In addition to criminalizing certain behaviour, anti-stalking laws may offer victims additional protection against their stalkers, such as confidential addresses. Judges are allowed to deny bail to accused stalkers who pose a credible threat to a victim. While referred to specifically as antistalking laws in some countries, in the United Kingdom, these provisions are covered under its anti-harassment laws.
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z ANTI-STALKING LAWS IN EAST AND WEST 17 IN AFGHANISTAN : The government passed the Elimination of Violence Against Women (EVAW) law as part of the Shia Family Law in August 2009, which apparently prohibits stalking of women (not men). However, implementation is slow and problematic. IN AUSTRALIA : Every Australian state enacted laws, prohibiting stalking during the 1990s, with Queensland being the first state to do so in 1994. The laws very slightly from state to state, with punishment ranging from a maximum of 10 years imprisonment in some states to a fine. Most Australian states provide the option of a restraining order in cases of stalking. IN BANGLADESH : In the wake of a high court direction, the government modified an Act in 2010 to allow men who stalk women to be tried summarily. Offenders can be sentenced to one year in prison or a fine. IN CANADA : Section 264 of the Criminal Code of Canada titled criminal harassment, addresses acts which are termed stalking in many other jurisdictions. The provisions of the section came into force in August 1993 with the intent of further strengthening laws protecting women. IN JAPAN : It enacted a national law in 2000 to combat this bahaviour after the murder of 21 year old Shiori Ino, whose complaints against her stalker had been repeatedly ignored. Acts of stalking are now viewed in the country as interfering (with) the tranquility of others lives. IN ITALY : After a series of high profile incidents, a law became effective in February 2009 making continuing harassment that leaves a victim scared for her safety or that of her near ones, or causes her to change her living habits, a criminal offence punishable with imprisonment ranging from six months to four years. The punishment is more severe if the perpetrator has a past relationship with the victim or if the victim is pregnant or a minor. IN ISRAEL: The country enacted law for the Prevention of Stalking in 2001, which is intended to protect a person from harm occasioned to their well being, privacy, freedom, or body, by another person, acting in a manner constituting stalking (i.e. intimidating harassment), or bodily
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z harm. The court may issue a protective injunction against a person who engaged in stalking, or impose further restrictions. IN SOUTH AFRICA: The legislative assembly passed the protection from harassment bill in August 2011 providing for protection against harassment and including sections concerning protection orders and cyberstalking. IN UNITED KINGDOM : In November 2012, the government amended the existing law to specially deal with stalking behaviour. However, even before the enactment of the Prevention from Harassment Act, the Malicious Communications Act 1988 and the Telecommunications Act 1984 criminalised indecent, offensive or threatening phone calls and the sending of an indecent, offensive or threatening letter, electronic communication or other articles to another person. IN UNITED STATES: The first state to criminalise stalking in the US was California in 1990 due to several high profile cases, including the 1982 attempted murder of actress Theresa Saldana, the 1988 murder of actress Rebecca Schaeffer, and five Orange County stalking murders, also in 1989. Within three years, every state in the US had followed suit on the crime of stalking. To use marriage for same sex relations is too much. These should not try to fit in that description but definitely add to the concept of family. IN FRANCE: The Upper House (senate) has voted in favour of same sex marriages on 5 April, 2013. The way for same sex marriage law is now clear. In France it has been welcome as great social reform since in 1981 when death penalty was abolished. The conservatives in France which includes Catholics, French Muslims and Evangelical Christians has opposed the move of the government.18 WHETHER PARTIES TO HOMOSEXUAL RELATIONS ARE CRIMINALS? 19 In India we have section 377 in IPC which criminalises gay relations and this case has been declared unconstitutional in Naz Foundation case 20 but the position is not clear in USA. The submission here is that to use the term marriage for same sex relations is a matter which cannot be tolerated. Why should these relations be permited to enter in the pious marital relation and
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z why should they try to fit in these description. At the most a concession can be given to these relations as innovative concept of family. In 2003, the US Supreme Court in Lawrence v. Texas21 ruled that laws criminalizing sodomy were unconstitutional. Closer home, last year, the Supreme Court of India seized with identical question on an appeal against decision of Delhi high Court in Naz Foundation case 22 which it is yet to decide. By June this year US Supreme Court may pronounce judgement in the two laws on the gay rights under scrutiny i.e. Californias Proposition 8. One out of these is state Act and other is Federal Act. The issues in both are: whether the laws that permit same sex relations between consenting adults are or not constitutional. The Wolfendem Committee report of England and Naz Foundation view as it may come after Supreme Courts Decision would be relevant before US Fedral Supreme Court for deciding the gay rights laws. By June this year, the US Supreme Court, would pronounce judgment in two laws under scrutiny: Californias Proposition 8 and the Federal Defence of Marriage Act, popularly called DOMA. WHAT IS PROPOSITION 8 OF CALIFORNIA? 23 Proposition 8, a law made by plebiscite, inserted the following words into the constitution of California: only marriage between a man and a woman is valid or recognised in California. It was passed in November 2008 to specifically overrule the judgment of the Supreme Court of California, which held that same-sex couples have a constitutional right to marry. Proposition 8 was then challenged and, affirming the trial courts decision to strike it down, the US Court of Appeals in San Francisco held that the states voters were not permitted to withdraw or negate the right to marry once it had been recognised by the state Supreme Court. This ruling was confined to California. DOMA VIEW Marriage is legal union between two opposite sex on one to one basis. DOMA, the other statute under consideration, has a much wider reach. Since it is federal, it applies uniformly to all 50 states. DOMA defines marriage as a legal union between one man and one woman, and the word spouse refers only to a person of the opposite sex. It thus comes in the way of the states that might want to legalise gay marriage, by essentially saying that the federal government does not recognize that marriage. Under Indian law, capacity to marry is given to every body, of certain
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z age e.g. 18 years for girls and 21 years for boys. No maximum age is prescribed. Gay relations are not recognized as marriage in Indian law. No inability is provided by law. However, marriage can be dissolved by court if suit is filed with allegation of disabilities; physical, mental or legal. Inabilities and disabilities are not same. Same sex relations are not encouraged by Indian laws. Law is same amongst civilized and cultureds. Deviations are but needs not specific notice. Inability to marry means same-sex couples are denied around 1,100 federal benefits that opposite-sex couples enjoy, such as insurance and social security survivors benefits, immigration and the filing of joint tax returns. But former president Bill Clinton, who signed it into law, has subsequently changed his position and advocates its repeal. Eight federal courts have held DOMA to be unconstitutional. Obviously both these Acts, consider the object of marriage to be sex relation. Gays are same sex relations. The question of sex in gays does not arise in normal way. If the view submitted is in this paper is considered, the plight of even transgenders may also be lessened. Marriage is for company and comfort. Sex is not first choice of marriage. It is not primary object. If it can be object of marriage, it is incidental and secondary. California is one of the nine states in the US that allow same-sex couples certain rights, such as the right to enter into a civil union and the right to adopt. However, the right to marriage has become a bone of contention. Neither DOMA nor Proposition 8 is being defended by the executive. Proposition 8 is being defended by its initiators. The Supreme Court has never before allowed the proponents of a law to defend its validity before it. Similarly, DOMA is being defended by a section of Republications from the House of Representatives, with the permission of the court. In the DOMA case, the federal government has appealed that the decision of the appeals court, which ruled against DOMA, be upheld. In order words, the executive is requesting the Supreme Court to definitively and conclusively hold DOMA and Proposition 8 to be unconstitutional, so that it can stop enforcing them. But in the absence of an adversarial equation, the court is actively grappling with the issue of jurisdiction in this case. The US Supreme Court has no power to issue advisory opinions, unlike in India, where Article 143 of the Constitution allows the president to refer a question of law or fact of the Supreme Court for its opinion. Another thorn that has presented itself is that the judges are divided on whether their ruling on Proposition 8 will apply to all 50 states or only the nine states where some form of civil union or domestic partnership is currently permissible.
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z WHETHER DOMA LITIGATION WOULD INVOLVE ISSUE OF THE SEPARATION OF POWERS? The American concept of federalism is different from the Indian concept. The American constitution provides that powers not expressly granted to the federal government, and not prohibited to the states, are reserved for the states in India, residuary legislative subjects are granted to Parliament. It is being argued that because every state has always held the power to legislate on marriage related issues, as a residuary power, DOMA is an affront to the American concept of federalism. As such, constitutional aspect of separation of power is definitely involved and needs to be considered while scrutinizing ultra-virus of DOMA legislation. While same-sex couples are looking to the Supreme Court for respite, this particular case doesnt seem to be one where it can issue a sweeping judgment permitting or constitutionalsing gay relations. Moreover, the US Supreme Court, which sits with its present conservative learning formation of five Republican appointees and four democrat appointees would find it difficult to and hesitant to adjudicate on the issue. Another question involved is if the procreation of child is the stated purpose of marriage, why must couples above the age of 55 and infertile couples be afforded the right to marry? Can our parliament legislate prohibiting citizens to marry after age of procreation is over? Can such age be fixed? How long can one procreate? Would laissez faire advocates ever tolerate such proposition. Live in and gay relations are affront to and for all those traditionalists stand for but care has to be taken and distinction has to be made in live in relations type of deviations and the institutions of marriage. The question arises as to why same sex couples would be prevented from marrying once they were permitted to adopt children? Ultimately, it may appear that the court may not want to enter into this socio-political wrangle at this juncture. Its position has consistently been that it is there to adjudge the law rather than to make it. It is thus an issue of ballot versus gavel, and in this case, it appears that the gavel wants to see what balance the ballot will strike. Let the courts take cue from the executive.
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z WHETHER LAW IS THE ONLY REMEDY FOR EVERY MALADY? It is unfortunate that law is considered to be only remedy for every malady, without evaluating the symptons of malady; which may be; social, economic, religious, outcome of caste, colour, creed, race or community, for all so many, law is not and can not be sole remedy. The social type problems and legal type problems are quite separate and need to be tackled separately. So are, ethical or moral type issues. Law is effective if morality supports and if moral is not with law, the legal remedy would either be less effective or no effective. Religion, caste, community, society, love, order, respect are other influential connecting factors that are very relevant in formal or informal enforcement of law. LAW! KNOW YOUR LIMIT This law, that law, here law, there law, law everywhere, from bedrooms to place of work. Law leaves no space for romance unfortunately law does not know its outer limits if does not know how long? Where to stop? What to leave? Any place where I am all alone and there is no law. It needs to be researched and law must leave some space, some moment where one can behave in his own way without fear of law. Right of privacy takes note of this travail of individual but liberty to romance exists and survives beyond boundaries guarded by rights of the privacy. The law has to limit itself in this area of romance and must realize hitherto and no more. Law is for doctors, it is for engineers, for traders, manufactures, farmers, tillers of land, for forest, dwellers, for me and for my wife, for you, for children, for governors, for governed. Law of birth, law for death, law prior to birth, law after death, law for marriage, law for sex. It is impossible to think law where not. Do we not need to have doctors for the law, engineers for the law, farmers, labourers, industrialists, traders, for the law? Who will take care when law falls sick or when, its machineries do not work, mechanism to repair the faults in law, and so on so forth. WHY DO WE EXPECT EVERYTHING FROM LAW? The reason is obvious, its link with rulers. Law is linked with power and those in power. It is strongest weapon in armory of state but question is; can it alone give remedy for every malady? Obviously, you can get medicines alone from shop of chemist, books from that of book sellers,
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z groceries from provision store, so law from state. Can we think of single window service wherein all are just on asking? Boys and girls in co-educational institutions meet, talk, live and work together say for 16 hours together. Their relations are healthy equal and very sober. There is nothing to complain but possibilities lurk in that some good friends may fall apart for no reasons. Do they or either become a criminal when relations turn sour? Live in relations have every chance of creating a criminal. Promise to marry if fail, attract prosecution frequently. Can we not stop creating criminals and making such conducts a crime wherein no criminality exists. Actually what we do and think is that whenever two or opposite sex sit together they have nothing except sex relations. This is our habit. Can we not start thinking that the two have something more, something different from sex to discuss when the two are together? Who is then at fault? The two youngsters or numerous onlookers? Who needs care the two or those onlookers? Submission is we need to change our mentality towards on youngsters. Sex is not that important to our young generation as it is to onlookers. These need treatment. So the process of criminalization of youth must stop. Those in power should desist from abusing their authority in this sensitive area as not only future belongs to our youth but they have good share to share with us in present. Legislation in this area must be slow and cautious. Let us not forget that surgeons knife is not for kitchen and surgeon by kitchen knife would bring disaster.
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z REFERENCES
1
Bhagwat Gita as it is by Swami Prabhupad of ISCON for further see also Commentaries on Gita by Dr. RadhaKrishnan, by Shri M K Gandhi, by Vinova Bhave and by Maharshi Mahesh Yogi 2 Ibid. Supra 2.(Sense of knowledge) Five Gyanendriya are: eyes(20, ears(2), nose(1) Five Karmendriyas (sense of action) are: Hands, Legs, organs of excretion and generation. 3 India Constitution, by Prof. G. P. Tripathi, Chapter 4, CLP, Allahabad, 2013 4 See Authors article, From laws of Religion to Religion of Law, 2012, MATS University Journal, Vol. I, Issue 2, ISSN No. 2250-3889, Pages 60-71 5 Ibid. Supra at page 266 6 (1886) 8 Allahabad 149 7 1866 L.R. P.& D. 130 8 See Acharya Rajnishs book from Consciousness to Super consciousness 9 Ibid. Footnote 3 Supra 10 National Violence Against Women Survey(NVAW) cited in Tjaden, Patricia & Thoennes, Nancy, Stalking in America Findings from the NVAW, National Institute of Justice Centers for Disease Control & Prevention Research in Brief(1998) 11 See Authors book Indian Jurisprudence Published by ALA, Fridabad 12 Suleman J. in Case quoted above(see footnote 5) was of the view that marriages are for legalization of sexual intercourse and for procreation of children, this view is quoted and taught as view of the privy Council and binds the Courts under Article 372 of the Indian Constitution as law in force. The Author doesnt agree with this view. The reason is that Suleman J. was elevated to the privy in stop gap leave arrangement. The judgment in question was heard by Privy Council and justice Suleman was asked to write the judgement. He wrote the day he retired and the judgement was pronounced by a Bench of which suleman j was not a member. Therefore it does not bind the courts in India either on Article 141 or 372. Another point is that if the marriage is for the twin purposes above why does the system of law permit people in late sixties to marry. The author is of the view that none of the above view are primary objectives of marriage. The primary object is that marriage is for company and mutual comfort. 13 Act no. 13 of 2013, 30 Sections divided in six chapters; Chapter I Preliminary, Chapter II Amendments to the Indian Penal Code, 1960, Chapter III Amendments to the code of Criminal Procedure Code, 1973, Chapter IV Amendements to the Indian Evidence Act, 1872, Chapter V Amendement to the protection of children fron sexual offences act 2012, Chapter VI Miscelleneous 14 Drig, Urghat, Tootat, kutumb, Jurat, Chatur,chit,preet parat, ganth,durjan, hiye, dai, nai, yeh, reet bihari Sa tsayi See also kalidas Meghdutam, Abhgyan Shakuntalam and P B Shelly, John Milton and Surdas for further on this topic 15 See the controversy recently raised by Sir Sangh Sanchalak of RSS Shri Mohan Bhagwat and issues joined by others on this issue that is covered by media in detail. 16 Supra at 10 17 Nayanika C. compilation 18 Times of India, Raipur, Saturday, 13 April, 2013 in Times Global Part page 9
19 20
Rahul Kriplani on gay marriage; Page 9-10 are based on the Article of Mr. Kriplani. Naz Foundation vs Government Of NCT Of Delhi, WP(C) No.7455/2001 21 539 US 558 (2003), In a 6-3 ruling, the Supreme Court overturned a Texas sodomy law, holding that private consensual sex between adults is a fundamental liberty (people have a fundamental right to privacy) protected by the Constitution under the doctrine of substantive due process. Lawrence overturned the Court's earlier decision in Bowers v. Hardwick, 478 US 186 (1986), that upheld the constitutionality of a Georgia sodomy law on the basis that there is no constitutional protection for sexual privacy. 22 Suresh kumar Kaushal v. Naz Foundation SLP (Civil) 15436 (2009) 23 Proposition 8 was a California ballot proposition and a state constitutional amendment passed in the November 2008 state elections. The measure added a new provision, Section 7.5 of the Declaration of Rights, to the California Constitution, which provides that "only marriage between a man and a woman is valid or recognized in California." By restricting the recognition of marriage to opposite-sex couples, the proposition overturned the California Supreme Court's ruling of In re Marriage Cases that same-sex couples have a constitutional right to marry. The
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wording of Proposition 8 was precisely the same as that which had been found in Proposition 22, which had passed in 2000 and, as an ordinary statute, had been invalidated by the State Supreme Court in 2008. California's State Constitution put Proposition 8 into immediate effect the day after the election. The proposition did not affect domestic partnerships in California, nor same-sex marriages performed before November 5, 2008. After the elections, demonstrations and protests occurred across the state and nation. Same-sex couples and government entities filed numerous lawsuits with the California Supreme Court challenging the proposition's validity and effect on previously administered same-sex marriages. In Strauss v. Horton, the California Supreme Court upheld Proposition 8, but allowed existing same-sex marriages to stand (under the grandfather clause principle). United States District Court Judge Vaughn Walker overturned Proposition 8 on August 4, 2010 in the case Perry v. Schwarzenegger, ruling that it violated both the Due Process and Equal Protection clauses of the United States Constitution. Walker issued an injunction against enforcing Proposition 8 and a stay to determine suspension of his ruling pending appeal. The Ninth Circuit Court of Appeals continued the stay, keeping Walker's ruling on hold pending appeal. On February 7, 2012, in a 21 decision, a Ninth Circuit Court of Appeals panel affirmed Walker's decision declaring the Proposition 8 ban on same-sex marriage to be unconstitutional. The panel also unanimously affirmed Judge Ware's holding that Walker was not obligated to recuse himself from the case because he is gay. Still, the panel continued a stay on the ruling, barring any marriages from taking place pending further appeals. On June 5, 2012, a majority of the full Ninth Circuit denied a petition for rehearing en banc and stayed the ruling pending appeal. The proposition's proponents filed a petition for certiorari with the U.S. Supreme Court, requesting that the Court review the case, on July 30, 2012. On December 7, 2012, the Supreme Court granted the proponents' petition for certiorari. The Court is expected to issue its ruling in Hollingsworth v. Perry by late June 2013
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CLIMATE CHANGE: PARAMOUNT CHALLENGE FACING EARTH

CHHAYANK NAGPAL INTRODUCTION In contemporary society, the climate change is one of the most important issues that affect daily life of human beings. Climate change can be attributed to natural and anthropogenic factors. The major international effort for the protection of global environment began in 1972, when the international community assembled to discuss and find solutions to the degrading environment. The Stockholm conference of 1972 laid emphasis on efforts to tackle the problem of environment and its improvement by international cooperation and agreement. It was by Nairobi Declaration of 1982, where the international community expressed serious concern at the state of global environment at that time and recognizing the urgent necessity of intensifying the efforts at the global, regional and national levels to protect and improve environment. It was Vienna Convention of 1985 where a convention was adopted for the protection of ozone layer. 1 The convention provided a foundation for global multilateral undertakings to protect the environment and public health from the potential adverse effects of depletion of Stratospheric Ozone, followed by Montreal Protocol of 1987, United Nations Conference on Environment and Development of 1992 that stressed on the rising need to adopt and implement the policy of sustainable development by both developed and developing countries. "Sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs." Agenda 21 of the afore mentioned conference provides a comprehensive charter of action plan for the 21st century to resolve the present and future problems of environment and development. The document looks at the possible solutions of global environmental problems with a view to ensuring sustainable development. 2 All these conventions together with other national and international efforts establishes a link between the human life and nature, which today is getting deteriorated with every other human activity. United Nations Framework Convention on Climate Change (UNFCCC) of 1992 which has been signed by 195 countries3 of the world requires the states to prevent the global climate change, by taking appropriate steps to reduce their emissions of greenhouse gases believed to contribute to global warming.4
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z WHAT IS CLIMATE CHANGE? Climate is different in different part of the world and, is usually described in terms of the mean and variability of temperature, precipitation and wind over a period of time, ranging from months to millions of years. Attention has begun to shift from local, short-term seasonal patterns of temperature, rainfall, other elements of the weather, towards longer-term trends that can affect the entire Earth. Climate change, now, is understood as a change of climate which attributed directly or indirectly to human activity that alters the composition of the global atmosphere and which is attributed to natural climate variability observed over comparable time periods.5 Factors, like oceanic circulation, solar radiation, plate tectonics and volcanic eruptions, followed by human-induced alterations with the nature, can bring about a change in the climatic conditions. Human-induced alterations being a recent phenomenon is currently causing global warming. Today climate change is linked to describe changes brought about in the atmosphere, the hydrosphere, the cryosphere, the surface lithosphere and the biosphere by human intervention which is of utmost interest and importance to the human race, since survival of Homo sapiens is linked to the safety and security of natural surroundings. DIRECT CONFRONTATION WITH DETERIORATING CLIMATIC CONDITIONS: A GLOBAL PERSPECTIVE The technological innovations in the sphere of production of goods lead to the Industrial Revolution of 18th century that witnessed rising of industries at a galloping speed. With the advent of industrial revolution came better transport and communications and mechanized goods that have made life easy, followed by increase in incomes and standard of living. It was only in the 19th century when ice ages and other natural changes in paleo-climate were first suspected and the natural greenhouse gas was identified. Continuous human activities involving combustion of fossil fuels for production of energy which is required to run our industries has increased the amount of greenhouse gases in the atmosphere. The increased amount of gases which absorb heat, has directly lead to more heat being retained in the atmosphere and thus an increase in global average surface temperature.6 This increase in temperature is known as global warming. The increase in temperature is also leading to other effects on the climate. Together these effects are known as anthropogenic (human-induced) climate change.7
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z Human activities have been substantially increasing the atmospheric concentrations of greenhouse gases that enhance the natural greenhouse effect, and will result on average in an additional warming of the earths surface and atmosphere and may adversely affect natural ecosystem and humankind.8 To this effect, the scientific consensus on climate change is that climate is changing and that these changes are in large part caused by human activities,9 and it is largely irreversible.10 Global warming today has become a fundamental threat to all living things on earth. It is the greatest challenge facing our planet. Several current trends clearly demonstrate that global warming has a direct impact on rising of sea levels, the melting ice caps, and significant worldwide climate changes. The average surface temperature has increased by 0.6-0.2 degrees Celsius over the last century.11 Globally, 1998 was the warmest year and the 1990s the warmest decades on record. Release of greenhouse gases, like carbon dioxide, methane, nitrous oxide from fossil fuels are playing role of protagonist in deteriorating climate conditions. Fossil fuel combustion (plus a smaller contribution from cement manufacture) is responsible for more than 75 per cent of human caused carbon dioxide emissions. Our economy today is driven by energy either derived directly from the source or by transforming it into some other form to meet our requirements. Energy has become the most critical economic, environmental and developmental issue facing the world today. Clean, efficient, affordable and reliable energy services are indispensable for global prosperity. Indispensability of energy can be understood from the fact that today from a small vehicle to huge industries are largely dependent on energy. Developing countries in particular need to expand access to reliable and modern energy services if they are to reduce poverty and improve the health of their citizens, while at the same time increasing productivity, enhancing competitiveness and promoting economic growth. Worldwide, approximately 3 billion people rely on traditional biomass for cooking and heating12 and about 1.5 billion have no access to electricity. Up to a billion or more have access to only unreliable electricity networks. At the global level, the energy system supply, transformation, delivery and use is the dominant contributor to climate change, representing around 60 per cent of total current greenhouse gas (GHG) emissions. Current patterns of energy production and consumption are unsustainable and threaten the environment on both local and global scales.
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z Emissions from the combustion of fossil fuels are major contributors to the unpredictable effects of climatic change, and to urban air pollution and acidification of land and water. Reducing the carbon intensity of energy that is, the amount of carbon emitted per unit of energy consumed is a key objective in reaching long term climate goals. As long as the primary energy mix is biased towards fossil fuels, this would be difficult to achieve with currently available fossil fuelbased energy technologies. Given that, the world economy is expected to double in size over the next twenty years, the worlds consumption of energy will also increase significantly if energy supply, conversion and use continue to be inefficient. Energy system design, providing stronger incentives for reduced GHG emissions in supply and increased end-use efficiency, will therefore be critical for reducing the risk of irreversible, catastrophic climate change. The impact of this increased energy consumption can be reduced through energy efficiency and a transition to a stronger reliance on cleaner sources of energy, including renewable energy and low-GHG emitting fossil fuel technologies, such as a shift from coal to natural gas. Coal, Oil and Natural gas are three fossil fuels that drive our economy. Coal is the largest source of energy for the generation of electricity worldwide, as well as one of the largest worldwide anthropogenic sources of carbon dioxide releases. In 1999 world gross carbon dioxide emissions from coal usage were 8,660 million tones of carbon dioxide.13 This sedimentary organic rock with high concentration of carbon release carbon dioxide in much higher quantity than other fossil fuels, leading to increase in the overall surface temperature of the earth. Burning of oil and gas to power vehicles, machinery and produce energy and warmth, also contributes to rising global temperature. Human activities during the last few decades of industrialization and population growth have polluted the atmosphere to the extent that it has begun to seriously affect the climate. The carbon dioxide in the atmosphere has increased by 30 per cent since preindustrial times, causing more heat to be trapped in the lower atmosphere.14 Today 195 countries of the world have signed a convention to reduce greenhouse gases under the United Nations Framework Convention on Climate Change (UNFCCC). Combustion of fossil fuels not only releases carbon dioxide into the air, but it also release various types of gases like carbon monoxide, methane, nitrous oxide etc. that causes air pollution. When in air, these gases undergo some chemical changes and get converted into harmful acidic substances like sulfuric acid and carbonic acid, and then these substances return to the surface of the earth in the form of
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z acid rain which has a huge impact on the entire environmental entities. Other factors like chlorofluorocarbons or CFCs, which are used as refrigerants and aerosol spray propellants, pose a threat to the ozone layer. Destruction of ozone layer triggers the chances of harmful sun rays especially UV radiations to enter the Earths atmosphere. This may lead to harmful effects on health of humans and cause damage to certain crops and plankton, thus affecting natural food chains and food webs. It has been observed that global warming induced by various factors is accelerating faster than what climatologists had calculated a few years ago. In 1995, the Intergovernmental Panel on Climate Change (IPCC) predicted that global warming would raise temperatures by 3.5-10 degree Celsius during 21st century. It is now believed that it could be much greater. This will lead not only to changes in temperature but also in the amount of rainfall.15 Changes in climate vary from region to region; similarly effects of these changes will be seen differently in different parts of the world. The variation is driven by the uneven distribution of solar heating, the individual responses of the atmosphere, oceans and land surface, the interactions between these, and the physical characteristics of the regions. 16 In some regions, such as parts of Asia and Africa, the frequency and intensity of droughts have been observed to increase in recent decades.17 It is being observed that, global sea level is currently rising due to the thermal expansion of water in the ocean18 and the addition of water from ice sheets19 caused by rise in global temperature. This intensifies the risk of floods in low lying coastal areas many of which are heavily populated.20 Recent projections of sea ice loss suggest that the Arctic Ocean will be likely to be free of summer ice sometime between 2059 and 2078.21 Episodes of El Nino and La Nina that causes extreme weather in many regions of the world have become more frequent. Some of the most vulnerable regions are the Nile Delta in Egypt, the GangesBramaputra delta in Bangladesh and many small islands including the Marshall island and the Maldives,(WHO 2001). Climate model projections were summarized in the 2007 Fourth Assessment Report by the Intergovernmental Panel on Climate Change. They indicated that during the 21st century the global surface temperature is likely to rise a further 1.1 to 2.9 degree Celsius for their lowest emissions scenario and 2.4 to 6.4 degree Celsius for their highest.22
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z ENVIRONMENTAL PROTECTION VIS--VIS INDIAN LAWS In context of environmental protection, Indian efforts began only after the Stockholm Conference in 1972. It proved to be an eye opener for Indian Government with regard to safeguarding natural environment. Before this Conference, neither the Indian Constitution nor any of the Indian laws dealt with the problem of environment expressly. The conference proved to be a milestone in the development of environmental law. Though Indian Constitution was not totally silent in this regard, it was only in 1976 that the Indian Government thought it necessary to get the Indian Constitution amended to expressly provide for the protection of environment by incorporating a few specific provisions in the Constitution.23 Directive principles of state policy which embody several unenforceable directives addressed to the State, under Article 48A imposes a constitutional obligation on the State to protect and improve the environment and to safeguard the forests and wildlife of the country. Article 51A (g) enjoins all the Indian citizens to protect and improve the natural environment including forests, lakes, rivers and wildlife. 24 A. R. Lakshaman J., in Intellectuals v. State Andhra Pradesh observed that, These two articles are not only fundamental in the governance of the country but also it shall be the duty of the State to apply these Principles in making laws and further, these two articles are to be kept in mind in understanding the scope and purport of fundamental rights guaranteed by the Constitution of India and also the various laws enacted by the Parliament and the State Legislature. 25 Parliament has also shown its response/concern towards rising climate change by enacting legislations such as The Environment (Protection) Act, The Air Prevention and Control of Pollution Act, The Water Prevention and Control of Pollution Act etc. This move of Parliament towards development by sustainable methods is highly appreciated. Concept of balance between development and ecology was established by Kuldip Singh J. in Vellora Citizens welfare forum v. Union of India, 26 where he held that we have no hesitation in holding that Sustainable Development as a balancing concept between ecology and development has been accepted as part of the customary international law. The Precautionary Principle and The Polluter Pays Principles are essential features of Sustainable Development. and .have been accepted as part of the law of the land in view of the above-mentioned Constitutional and Statutory provisions [Articles 48A, 51A(g) and 21 and Environment Protection Act, 1986 and Air Act, 1981]. In plenty of cases Supreme Court and High Courts have held that the right to pollution free environment is part of the right to life. In, Rural Litigation and Entitlement Kendra v. State
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z of U.P. Supreme Court held that limestone-mining activities in the Mussoorie-Dehradun region polluted the environment and, thus, violated the right to life of the people. It is astonishing to see that even after recognizing right to clean and healthy environment we are still in the midst of harmful gases covering us from all sides. This recognition by the Supreme Court as fundamental right seems to be a hoax as there is no implementation and protection of the same by civic authorities. CONCLUSION The present state of affairs demands solution to the daunting problem of climate change. Climate change could turn catastrophic if efforts are not made to reduce the greenhouse gas emissions that cause it. Keeping in view the current trends, it would not be wrong to say that we are not far away from being on the verge of extinction. It requires endeavor of all the nations in tackling this intimidating problem. The proposed solutions to climate change includes, energy conservation, adopting cleaner (renewable) sources of energy to a great extent, reducing carbon dioxide emissions through reduction in use of fossil fuels especially coal, innovating or look for new and cleaner sources of energy inter se. Public awareness is another way by which the problem can be tackled. The development and implementation of educational and public awareness programmes on climate change and its effects will enable nations to participate fully in and to implement effectively their commitments under the International Convention. Implement immediate emission reduction targets, initiate further international treaty negotiations, accelerate the construction of wind farms in suitable areas are some of the ways by which emission of carbon and greenhouse gases can be controlled. It should be mentioned here that mere enactment of laws will not achieve the goal. Proper implementation followed with stricter punishments for the offender should be prescribed. Behavioral changes, in the citizens of a nation, towards the mother earth could play a crucial role in deciding its faith. An eco friendly approach towards our environment is the need of the hour. In combating this menace which has the potential of affecting our coming generations each one of us has to come forward and contribute in whatever way one finds in protecting the mother earth.
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z REFERENCES
1 2
Vienna convention for the Protection of Ozone layer Aruna Venkat, Environment Law and Policy, Eastern Economy Edition, PHI Learning Private Limited. 3 United Nations Framework Convention on Climate Change 4 31 ILM 849 (1992) 5 Article 1 of United Nations Framework Convention on Climate Change (UNFCCC) 6 World Meteorological Organization(WMO) 7 World Meteorological Organization(WMO) 8 United Nations Framework Convention on Climate Change 9 America's Climate Choices: Panel on Advancing the Science of Climate Change; National Research Council (2010).Advancing the Science of Climate Change Washington, D.C.: The National Academies Press. . 10 Susan Solomon, Gian-Kasper Plattner, Reto Knutti, and Pierre Friedlingstein (2009). Irreversible climate change due to carbon dioxide emissions, Proceedings of the National Academy of Sciences of the United States of America(Proceedings of the National Academy of Sciences of the United States of America) 106 (6):17049.
11 12
Erach Bharucha, Environmental Studies, University Press UNDP and WHO, 2009 estimates that over 3 billion people lack access to modern fuels for cooking and heating, while IEA 2009 estimates this number at 2.5 billion 13 Erach Bharucha, Environmental Studies, University Press 14 IPCC, 2007: Climate Change 2007: The Physical Science Basis. Contribution of Working Group I to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change [Solomon, S., D. Qin, M. Manning, Z. Chen, M. Marquis, K.B. Averyt, M.Tignor and H.L. Miller (eds.)]. Cambridge University Press, Cambridge, United Kingdom and New York, NY, USA. 15 Erach Bharucha, Environmental Studies, University Press 16 IPCC, 2007: Climate Change 2007: The Physical Science Basis. Contribution of Working Group I to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change [Solomon, S., D. Qin, M. Manning, Z. Chen, M. Marquis, K.B. Averyt, M.Tignor and H.L. Miller (eds.)]. Cambridge University Press, Cambridge, United Kingdom and New York, NY, USA. 17 Erach Bharucha, Environmental Studies, University Press 18 Wigley, T. M. L.; Raper, S. C. B. (1987). "Thermal expansion of sea water associated with global warming". Nature 330 (6144): 127131. 19 Nakada, M.; Lambeck, K. (1989). "Late Pleistocene and Holocene sea-level change in the Australian region and mantle rheology". Geophysical Journal International 96 (3): 497517. 20 Nakada, M.; Lambeck, K. (1989). "Late Pleistocene and Holocene sea-level change in the Australian region and mantle rheology". Geophysical Journal International 96 (3): 497517. 21 Bo, J.; Hall, A.; Qu, X. (2009). "September sea-ice cover in the Arctic Ocean projected to vanish by 2100". Nature Geoscience 2(5): 341. 22 Meehl et al., Chap. 10: Global Climate Projections, Sec. 10.ES: Mean Temperature, in IPCC AR4 WG1 2007. 23 The Constitutional (Forty-Second Amendment) Act, 1976 introduced, among other things, Arts. 48A, 51A(g) into the Constitution. 24 Dr. Bharat Desai, Enforcement of the right to Environmental Protection through Public Interest Litigation, 33 IJIL, p. 27 at 28. 25 (2006) 3 SCC 549 26 AIR 1996 SC 2715
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CONSTITUTIONAL AND LEGAL DIMENSIONS ON THE DOCTRINE OF EQUAL PAY FOR EQUAL WORK: AN INDIAN PERSPECTIVE
RATEMO TOM JUNIOR The Constitution of India, 1950 [hereinafter referred to as COI] in its Preamble indisputably require the State to secure to all its citizens, social justice, economic and political; equality of status and opportunity, and the rule of the law. In addition, the Bill of Rights under Part III of the Constitution enshrines the equality clause of wide import. Moreover, the Equal Remuneration Act, 1976, stresses on payment of equal remuneration to men and women employees for the same work or work of similar nature. But the question is whether there is still pay disparity between men and women in India in this twenty first century? This paper evaluates the constitutional and legal provisions against inequality including judicial pronouncements by the Honble Supreme Court of India [hereinafter referred to as SCI] on the doctrine of equal pay for equal work. INTRODUCTION The doctrine of equal pay for equal work is a concept that has gradually evolved and has come to be recognized by a number of countries world-wide due to an increase in the instances of discriminatory pay scales for the same type of work1. Article.23 (2) of the Universal Declaration of Human Rights, 1948 debars all types of distinctions and classifications and clearly asserts that everyone without any discrimination has the right to equal pay for equal work. Similarly, Art.7 of the International Covenant on Economic, Social and Cultural Rights, Art.15 of the African Charter on Human and Peoples Rights, the International Labour Organisation Declaration on Fundamental Principles and Rights at Work, Art.11 of the Convention on the Elimination of All Forms of Discrimination against Women, S.59 of the Hungarian Labour Code, Clause 2 of S.111 of Czechoslovak Code, S.67 of the Bulgarian Code, S.40 of the Code of German Democratic Republic, Para 2 of S.33 of the Rumanian Code, Art.2 of the Convention Concerning Equal Remuneration for Men and Women Workers for Work of Equal Value, etc., are other best
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z international instruments that uphold the doctrine of equal pay for equal work. However, even after six decades of independence and with the existence of the international instruments that promote the principle of equal pay for equal work, and more importantly with the worlds biggest Constitution, India still lacks a comprehensive and transparent wage policy for men and women in all the sectors of the economy2. In this paper, a detailed analysis of various constitutional and legal provisions including judicial pronouncements relating to the doctrine of equal pay for equal work shall be undertaken. For proper perception, this paper is divided into five parts. The first part is an introductory part while the second part deals with the constitutional and legal provisions in existence in India relating to the doctrine. The third segment explains the applicability of the doctrine while the fourth part deals with the burden of proof of the doctrine. The last part is reserved for conclusions arrived at from the study. CONSTITUTIONAL AND LEGAL PROVISIONS The Bill of rights under Part III of the COI guarantees not only equality before the law but also equality of opportunity in matters of public employment3. Moreover, Part IV of the Constitution embodies a provision requiring the State to direct its policy towards securing equal pay for equal work for both men and women4. This doctrine denotes equal pay for equal work5 for all men and women who are equally placed in all respects6 and as between the sexes7. In other words, for claiming the benefit under this principle, the claimants must be discharging the same or identical or similar nature of works8. To supplement the provisions of the Constitution on the doctrine, Parliament, under the aegis of the Equal Remuneration Convention, 1951 and Art.39(d) of the Constitution passed the Equal Remuneration Act, 1976 to provide for not only payment of equal remuneration to men and women employees for the same work or work of similar nature and for the prevention of discrimination on account of sex9 but also to ensure that there is no discrimination against recruitment of women10. In India, the principle of equal pay for equal work was first considered in Kishori Mohanlal Bakshi11 where the SCI declared it incapable of being enforced in the court of law. However, it
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z received due recognition only in 1987 through Mackinnon Mackenzies case12 which involved a claim for equal remuneration for lady and male stenographers. APPLICABILITY OF THE DOCTRINE The doctrine of equal pay for equal work not only is applicable and/ or relates to basic pay of an employee but it also includes allowances i.e., overtime allowance13 and other financial benefits for e.g., housing loans14. The SCI has however held the principle inapplicable in the area of professional services15; or where the employees belong to two distinct categories16; or where the classification is based on educational qualifications17; or where the difference in pay scale is because of increments earned by virtue of length of service in the same cadre18; or where the differentiation in pay between the two groups of employees in the same cadre is based on difference in duties and responsibilities19 or nature and volume of work20. An interesting question arose before the SCI on whether the applicability of the doctrine of equal pay for equal work should be extended to persons working under the same employer or not? The Court in its wisdom held in Jaipal case21 that for the applicability of the doctrine, the concerned group of persons seeking equality must be working under the same employer 22. Since however, the doctrine and the concomitant claim is based on enforcement of fundamental rights under Art.14 of the COI, the requirement of the same employer principle has been diluted and the benefit of the doctrine has been extended to other instrumentalities of the State23. Whether the Court can direct merger of post to avoid inequality is another significant point to ponder. In this regard, the SCI has categorically held in Inder Singh24 that no Court has jurisdiction to direct merger of posts especially when they carry unequal responsibilities, duties and pay. Similarly, no Court/Tribunal has jurisdiction to recommend the revision of pay scales under the doctrine. Such jurisdiction is solely within the Executive arm of the Government or an expert body like the Pay Commission25. BURDEN OF PROOF The burden of proving the right to equal pay is a mountainous task that needs to be handled with a clear mind. In Pramod Bhartiya26 it was observed that the burden to establish the right to equal pay for equal work is on the person claiming the same. The petitioners must point out the apparent or prima facie similarity. Once the initial burden is discharged, the burden is then
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z shifted to the respondent State to establish that the services are dissimilar in essence and in substance27. In recent times, the Courts have been reluctant to apply the doctrine as there are complexities not only in establishing the burden of proof and comparing and evaluating work done by different persons in different sections or even in the same section but also many claims are being filed for equality requiring the Courts to take up intensive factual enquiry beyond their competence. After realizing that it had opened the doors wider than what was intended, SCI has now adopted a restrictive approach and held that the Courts must be fully satisfied that the petitioners are performing equal and identical work as discharged by the employees against whom the claim is made28. CONCLUSIONS An all-inclusive analysis carried out in this paper unveils major constitutional and legal provisions relating to the fundamental doctrine of equal pay for equal work. It can specifically be noted that the existing legal framework in India acknowledges the right to equal pay for equal work heedless of gender. It can however, be noted that absence of strong unions for collective bargaining has reduced the advancement of this principle to its existence in paper only. In developed countries, unions are very pro-active. They can compel employers to adjust pay scales for the benefit of all including female employees. The same should be replicated in India. Besides, an independent Equal Opportunities Commission should be established to start developing mechanisms to implement equal pay for work of equal value. Furthermore, it is remarkable to point out the role the SCI has played to enforce the doctrine over the years. The Court has not only laid down extensive guidelines in regard to the application of the doctrine while keeping in view the purpose for which this principle was conceived, (i.e., to steer clear of discrimination on grounds of sex in the payment of remuneration to both men and women) but it has also extended its scope to all institutions, establishments and organizations within India thereby helping in sorting out the problem of discrimination.
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z REFERENCES
1. The report published by International Trade Union Confederation in 2009, reveals existence of gender pay gap to the extent of 30% in India in 2008. See, ITUC Report 2008, Gender (In) Equality in the Labour Market: An Overview of Global Trends and Developments, http://www.ituc-csi.org/IMG/pdf/GAP-09_EN.pdf (Accessed on 24th March 2013, 10:34am). 2. For e.g., the survey done by World Economic Forum shows a large difference in the salary structure of men and women in corporate India. The average annual income of a woman is $1,185, which is less than one-third of a man's $3,698, employed in Indian companies, see, Women's Salary in India, Less Than a Third of Men's, http://www.siliconindia.com/shownews/Womens_salary_in_India_less_than_a_third_of_mens_-nid-62718-cid30.html (Accessed on 24th March 2013, 10:46am). 3. See, Arts.14 and 16, infra. 4. See, Art.39(d), the Constitution of India, 1950. Part IV of the Constitution also includes the Right to Work under Art. 41. The two Articles serve as guidelines for framing laws and policies relating to the doctrine. 5. Equal pay here relates not only to basic pay but includes other benefits and allowances, see, Equal Pay for Equal Work, http://www.paycheck.in/main/work-and-pay/paycheck-articles-archives/paycheck-articlesi/equalpay-for-equal-work; Constitution of India: The Concept of Equal Pay for Equal Work, http://www.lawisgreek.com/constitution-of-india-the-concept-of-equal-pay-for-equal-work (Accessed on 4th April 2013, 11:22am). 6. See, Uttar Pradesh Sugar Corporation Ltd., v. Sant Raj Singh , AIR 2006 SC 2296. See also, Secy. To Govt., v. C. Muthu, (2001) 10 SCC 545; State of U. P. v. Polytechnic Diploma Shikshak Sangh , (2001) 10 SCC 643; State of U. P. v. Pratap Narain Chaddha, JT 2000 (9) SC 447: (2001) 9 SCC 310; Shyamalendu Chatterjee v. Hooghly Dock & Port Engineering Ltd., 1995 (1) SLR 209 (Cal); Narendra Kumar v. Dharam Dutt, (1993) II LLJ 88: JT 1993 (2) SC 423; Gopal Krishna Sharma v. State of Rajasthan, AIR 1993 SC 81: 1992 (5) SLR 362; Karnataka State Private College Stop- Gap Lecturers Association v. State of Karnataka, AIR 1992 SC 677: JT 1992 (1) SC 373; Doordarshan Cameramens Welfare Association v. Union of India , AIR 1990 SC 1387: 1991 (3) SLR 18 (SC): 1990 (Supp) SCC 260; State of Bihar v. Bihar State Workshop Superintendents Federation , AIR 1993 SCW 758: 1993 (4) SLR 383 (SC); State of H. P. v. H. P. State Recognised & Aided Schools Managing, 1995 (2) SLR 725 (SC): JT 1995 (8) SC 406; Central Bank of India v. Secretary to Government of Tamil Nadu, AIR 1996 SC 676: (1996) 1 SCC 345; K. Krishnamacharyulu v. Sri Venkateswara Hindu College of Engineering, (1997) 3 SCC 571: 1997 (2) SLR 448; Government of India v. Court Liquidators Employees Assn., (1999) 8 SCC 560: (1999) 5 SLR 487; Equal Pay for Equal Work, http://en.wikipedia.org/wiki/Equal_pay_for_equal_work (Accessed on 5th April 2013, 12:14pm); Sukhdeo Pandey v. Union of India and Another, 2007 SC2 GJX 0806 SC, the SCI held in this case that that a person must be paid if he has worked and should not be paid if he has not. In other words, the doctrine of 'no work, no pay' is based on justice, equity and good conscience and in absence of valid reasons to the contrary, it should always be applied. 7. Randhir Singh v. Union of India, AIR 1982 SC 879 at 881: (1982) 1 SCC 618: (1982) 1 LLJ 344. 8. See, State of Bihar v. Bihar State Plus-2 Lecturers Associations, (2008) 7 SCC 231; Union of India v. Dineshan K. K., (2008) 1 SCC 586; Doordarshan Cameramens Welfare Association v. Union of India, supra note 86 [In this case, there was disparity in pay amongst employees i.e., sound recordists, cameramen, etc., of Doordarshan and Films Divisions. The SCI directed for parity of pay basing on the principle enshrined under Art.39(d) since the employees of both the organizations were discharging same/identical/similar work]. See also, R. D. Gupta v. Lt. Governor, Delhi, AIR 1987 SC 2086: (1987) 3 SCR 808: JT 1987 (3) SC 259 [There cannot be disparity of pay based on status i.e., temporary or permanent]; Sandeep Kumar v. State of U. P., AIR 1992 SC 713: 1993 Supp (1) SCC 525: 1992 Lab IC 395 [There cannot be disparity of pay based on status i.e., regular or casual]; Equal Pay Act: Equality of Work, http://labor-employmentlaw.lawyers.com/employment-discrimination/Equal-Pay-Act-Equality-of-Work.html (Accessed on 7th April 2013, 3:54pm). 9. See, S.4, the Equal Remuneration Act, 1976. The Act further prohibits any kind of discrimination being made while recruiting men and women employees. See also, Equal Pay for Equal Work: The Law Revisited, http://legalperspectives.blogspot.com/2010/06/equal-pay-for-equal-work-law-revisited.html (Accessed on 2nd April 2013, 4:14pm). 10. See, Scope of the Concept of Equal Pay, http://www.ilo.org/public/english/dialogue/ifpdial/publ/infocus/equalpay/8_2.htm (Accessed on 5th April 2013, 2:45pm).
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11. Kishori Lal Mohan Lal Bakshi v. Union of India, AIR 1962 SC 1139. 12. Mackinnon Mackenzie and Co. Ltd. v. Audrey D'Costa and Others , (1987) 2 SCC 469. 13. M. D. N. Panikar v. SAIL, AIR 1987 SC 1347: (1987) 1 SCC 63: 1987 Lab IC 981; Abid Hussain v. Union of India, AIR 1987 SC 820: (1987) 1 SCC 532: (1987) 2 SCR 47: JT 1987 (2) SC 72: (1987) 1 LLJ 359: 1987 (3) SLJ 61: 1987 Lab IC 633: 1987 (1) SLR 495. 14. See, Hans Raj Arora v. Union of India, 1998 (Supp) SCC 564: 1988 SCC (L&S) 925. See also, Vijay Kumar v. State of Punjab, 2002 (1) SLR 694. 15. See, C. Girijambal (Dr.) v. Government of A. P., AIR 1981 SC 1537: (1981) 2 SCC 155: (1981) 2 SCR 782: (1981) (2) SLJ 206: (1981) II LLJ 314: 1981 (1) SLR 364. [Medical officers in Zilla Parishad holding L.I.M., G.C.I.M or D.A.M. qualifications though in-charge of dispensaries run by the Zilla Parishad cannot be treated at par]. 16. Union of India v. E. S. Soundara Rajan , AIR 1980 SC 959: (1980) 2 SCR 1200: 1980 SLJ 344: 1980 Lab IC 589-[Commercial Clerks and Assistant Station Masters/ Station Masters]; Hundraj Kanyalal Sajnani v. Union of India, AIR 1990 SC 1106: 1990 (Supp) SCC 577: JT 1990 (2) SC 145: 1990 (2) SLR 400: (1990) 1 SCR 994; Ram Singh Malik v. State of Haryana, AIR 2002 SC 964: (2002) 3 SCC 182: 2002 SCC (L&S) 375-Cadre and ex-cadre posts. 17. V. Markendeya v. State of A. P., AIR 1989 SC 1308: (1989) 3 SCC 191: JT 1989 (2) SC 108: (1989) II LLJ 169: (1989) 2 SCR 422: 1989 (3) SLR 37: 1989 (3) SLJ 34; Mewa Ram Kanojia v. All India Institute of Medical Sciences, AIR 1989 SC 1256: (1989) 2 SCC 235: JT 1989 (1) SC 512: (1989) II LLJ 578: (1989) 1 SCR 957: 1989 (2) SLR 37: 1989 Lab IC 1348- [hearing therapists denied parity with Audiologists]; National Federation of State NFC (Physical Education) Teachers Associations v. Union of India , AIR 1993 SC 369: 1993 Supp (2) 303: 1993 Lab IC 38: 1993 (1) SLR 118: 1993 (1) SLJ 96- [ physical instructors not equated with secondary school teachers]; State of Rajasthan v. Gopi Kishan Sen , AIR 1992 SC 1754: 1993 Supp (1) SCC 522: 1992 Lab IC 1798 [trained and untrained teachers]; Nain Singh Bhakuni v. Union of India, AIR 1998 SC 622: JT 1998 (1) SC 43: (1998) 3 SCC 348; Union of India v. Secy., Madras Civil Audit & Accounts Association , JT 1992 (1) SC 586; Shyam Babu Verma v. Union of India, (1994) 2 SCC 521: 1994 (1) SLR 827. 18. Canara Bank Officers Congress v. Canara Bank Head Office , 1988 (6) SLR 497 (AP). 19. C. R. Seshan v. State of Maharashtra, AIR 1989 SC 1287: JT 1989 (1) SC 542: 1989 Supp (1) SCC 610: 1989 Lab IC 1332. See also, Garhwal Jal Sansthan Karmachari Union v. State of U. P., AIR 1997 SC 2143: (1997) 4 SCC 24: 1997 (76) FLR 114: 1997 Lab IC 2101; National Federation of State NFC (Physical Education) Teachers Associations v. Union of India, AIR 1993 SC 369: 1993 Supp (2) 303: 1993 Lab IC 38: 1993 (1) SLR 118: 1993 (1) SLJ 96; State of Tamil Nadu v. M. R. Alagappan, AIR 1997 SC 2006: 1997 (2) SLR 554: (1997) 4 SCC 401: (1997) II LLJ 711. 20. See, Federation of All India Customs & Excise Stenographers v. Union of India , AIR 1988 SC 1291: (1988) 3 SCC 91: JT 1988 (2) SC 519: 1989 Lab IC 1157: 1988 (2) SLR 721. See also, State of U. P. v. Prem Lata Misra, AIR 1994 SC 2411: (1994) 4 SCC 189: 1994 (2) SLJ 167 (SC): (1995) 1 LLJ 28; Ajay Kumar Jaitly v. State of U. P., 1998 (6) SLR 740 (All-FB) Gril Kalyan Kendra Workers Union v. Union of India, AIR 1991 SC 1173: (1991) 1 SCC 619: 1991 (1) SLR 618: JT 1991 (1) SC 60; State of Punjab v. Savinderjit Kauri, (2004) 4 SCC 58; State Bank of India v. M. R. Ganesh Babu , AIR 2002 SC 1995: (2002) 4 SCC 556. 21. Jaipal v. State of Haryana, AIR 1988 SC 1504: (1988) 3 SCC 354: 1988 Supp (1) SCR 411: JT 1988 (2) SC 528: 1988 Lab IC 1673: 1988 (2) SLR 710. See also, All India Sainik Schools Employees Associations v. Sainik School Society, infra note 27; All India Railway Institute Employees Association v. Union of India, AIR 1990 SC 952: (1990) 2 SCC 542: JT 1990 (1) SC 319: (1990) 1 SCR 594- [Employees of Railway Canteens and those of Railway Institute and Clubs not under the same employer]. But see, M. M. R. Khan v. Union of India, AIR 1990 SC 937: 1990 (Supp) SCC 191: JT 1990 (3) SC 1: 1990 (4) SLR 666: (1990) 1 SCR 687. 22. See, Alvaro Noronha Ferriera v. Union of India , AIR 1999 SC 1356: (1999) 4 SCC 408. 23. Employees of Tannery and Footwear Corporation of India Ltd., v. Union of India, AIR 1991 SC 1367: JT 1991 (5) SC 90: 1991 (2) SLR 131: (1991) 1 LLJ 563: 1991 Lab IC 1120- [Employees of the Government Company and a Cotton Corporation of India]. See also, Girindra Chandra Chakraborty v. Managing Director, W. B. Dairy and Poultry Development Corporation Ltd., 1988 (3) SLR 60 (Cal) - [Purchase Assistants in the Corporation equated with Purchase Assistants under Government]; Haryana State Adhyapak Sangh v. State of Haryana, AIR 1988 SC 1663: (1988) 4 SCC 571: 1988 Supp (1) SCR 682: JT 1988 (3) SC 172: 1988 (3) SLR 584: 1989 Lab IC 1314- [Teachers of private aided schools were declared to be at par with teachers of Government schools in the matter of pay and allowances]; State of Haryana v. Champa Devi, (2002) 10 SCC 78: (2002) 2 SLR 1.
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24. Inder Singh v. Vyas Muni Mishra, 1987 (Supp) SCC 257: (1987) 3 SCR 972: JT 1987 (3) SC 384: 1987 (4) SLR 550. 25. Ibid. 26. State of Madhya Pradesh v. Pramod Bhartiya , AIR 1993 SC 286: (1993) 1 SCC 539: (1993) 2 SLJ 91. See also, Union of India v. S. A. Sarma, (1998) 1 ATJ 162 (SC); Griha Kalyan Kendra Workers Union v. Union of India , AIR 1991 SC 1173: (1991) 1 SCC 619: 1991 (1) SLR 618: JT 1991 (1) SC 60. 27. See, Bhagwan Dass v. State of Haryana, AIR 1987 SC 2049: (1987) 4 SCC 634: (1987) 3 SCR 714: JT 1987 (3) SC 206: 1987 Lab IC 1662. See also, All India Sainik Schools Employees Associations v. Sainik School Society, 1989 Supp (1) SCC 205: JT 1988 (4) SC 22: 1988 Supp (3) SCR 398: AIR 1989 SC 88: (1989) 1 LLJ 263: 1988 (5) SLR 626; State of M. P. v. Pramod Bhartiya, AIR 1993 SC 286: (1993) 1 SCC 539: (1993) 2 SLJ 91. 28. S. C. Chandra v. State of Jharkhand, AIR 2007 SC 3021; Union of India v. Dineshan K. K., AIR 2008 SC 1026.
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LEGISLATIVE AND JUDICIAL APPROACH TOWARDS LAW OF RAPE

SHARATHRAJ P.A. INTRODUCTION: The offences against women, young girls some of whom are even tender aged girls are on rampant increase in this country where women are worshipped as Goddess of wealth, learning, purity or purifier, strength or power or destroyer of all evils, as mother, as creator and so on. The best part of the creation belongs to woman, because the nature itself is female. There is basic need to improve human conduct and behavior so as to make the female folks refuse to feel secure and less inferior. Any holes in the security umbrella have to be plugged. There has to be a feeling that enforcement of law is not an idle thinking and that the protective guards are not merely on the books. Women have been the recipients of violence since time immemorial. Being the weaker of the human species, they have been the target of aggression ofmen. Even the periods of social transformation have not been easy for them, wherein all forms of atrocities, whether rape, molestation, slavery or trafficking have been perpetrated upon them. The word rape has been derived from the term rapio, which means to seize. Rape is, therefore, forcible seizure or the ravishment of a woman without her consent, by force, feat, fear or fraud. Rape can be viewed as an act of violence of the private person of a woman, an outrage by all means. It is the ultimate violation of the self. 1 The Supreme Court of India has aptly described it as deathless shame and the gravest crime against human dignity. 2Sexual violence, apart from being a dehumanizing act, is also an unlawful intrusion of the sanctity of a female. Rape is not merely a physical assault, but is destructive of the whole personality of the victim. It shatters the entire social fabric, destroys the poise of the milieu and ruins the harmony of the atmosphere. The Indian judiciary has shown a mixed trend over the years. While the period immediately after independence, up to the seventies witnessed a conservative and narrow minded judicial system, the late eighties and nineties have seen the emergence of the judicial activism which reached its
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z highest in Saakshi vs. Union of India3. Nevertheless, instances of injustice being heaped on the victim have continued to persist. Special note may be made on the Nandan Kanan rape case of Orissa or Rajus case4 of the nineties, where a pregnant woman was raped by three NCC cadets while her husband was held hostage. The Supreme Court interpreted it as a case of consensual sexual intercourse where the consent purportedly was given by the husband of the victim since she was not his legally wedded first wife. The court also stressed on the point that she was a midwife and therefore experienced and even the strongest man could not ever dare to rape her. Ridiculous it may seem, but the truth stands out harsh and naked. Raju vs. State of Karnataka5 was another instance of glaring disregard for human rights of the victim. Here, the lady was a nurse who while travelling, was befriended by two youths who agreed to take her safely to the place destined. Since it was evening and they had to take another bus, she was taken to a lodge where in the same room they put up for the night. She was thereafter raped by these two men, despite her protest and resistance, which medical evidence and oral evidence of the police constable, staying in the next room, confirmed. Yet the Sessions court as well as the Supreme Court took a light note on the facts, stating that: the prosecutrix had voluntarily allowed the accused persons to have a merry time and to have sexual intercourse with her. The prosecutrix herself caused inducement to the accused who was a young man and only on such inducement and under a grave provocation he had lost the mental frame and in a fit of passion which was very natural in that age committed the offence of rape. Surprisingly, the court invented the theory of provocation because of young age and uncontrolled youthful passion and imposed a sentence of three years on the accused. At this juncture, however, it would be unjust if the victim centric approach of the court is not stressed upon. The jurisprudential foundations of victim justice perspective have gained importance only in the recent past. The Indian criminal justice system is not victim oriented but accused oriented. Under the Code of Criminal Procedure 1973, the accused is provided with all possible help. A number of constitutional protections are also available to an accused under Articles 20, 21 and 22 of the Constitution of India 1950; 6 but, unfortunately, very few legal provisions exist in our
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z criminal law and Constitution to provide succor to the victim. In the public mind, the interests of the offender seem to have greater attention than the interests of the victims. Hence, a strong wind in the form of victimology is blowing in the area of criminology, the focus of which is placed on restitution or compensation to victims and their dependants. Decisions of the Supreme Court have had a remarkable impact on victim justice movement. An increased sensitivity towards the plight of the victims is particularly noticeable in the land mark case of State of Punjab vs. Gurmit Singh7. This case raised a very pertinent question, why should the evidence of a girl or a woman who complains of rape or sexual molestation be viewed with doubt, disbelief or suspicion? The court while appreciating the evidence of prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the charge leveled by her, but there is no requirement of law to insist upon corroboration of her statement upon which the conviction of the accused is based. The evidence of a victim of sexual assault stands at par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self-inflicted, is considered to be a good witness, in the sense, that he or she is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, notwithstanding the absence of corroboration. Justice Dr. A. S. Anand and Saghir Ahmad made some revolutionary and ground breaking observations: 1. Delay in lodging FIR is not material when properly explained. 2. Testimony of the victim in cases of sexual assault is vital and unless there are compelling reasons which necessitates seeking corroboration of her statement, the court should find no difficulty in convicting the accused on her testimony alone. 3. Trial of sexual offences should be in camera and invariably by lady judges, wherever applicable. 4. The court must share responsibility and restrain from making loose observations about the character of the prosecutrix. 5. The court is under an obligation to ensure that the prosecutrix is not unnecessarily harassed and humiliated in cross examination in case of rape trials.
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z In 2004, the Supreme Court expressed concern over the plight of child victims of sexual assault, who often, have to describe their experiences of assault in court. It has a tremendous effect on the psyche of the child, and her physical and mental well-being. The court accordingly prescribed the following guidelines:8 1. A screen or some such arrangements may be made where the victim or witness do not see the body or face of the accused. 2. The questions put in cross examination on behalf of the accused, in so far as they relate directly to the incident should be given in writing to the presiding officer of the court who may put them to the victim or witnesses in a language which is clear and is not embarrassing. 3. The victim of child abuse or rape, while giving testimony in court, should be allowed sufficient breaks as and when required. COMPENSATION TO VICTIMS The judiciary has, on many occasions, while convicting the accused of rape, ordered compensation to be paid to the hapless victim. The necessity of payment of compensation has been the concern of the United Nations as well. The Seventh United Nations Congress on Prevention of Crime and Treatment of Offenders came out with a Declaration of Basic Principles of Justice of victims of Crime and Abuse of Power, which was later adopted by the UN General Assembly. In the Declaration the UN defined the Victims of Crime as follows: 1. Victims means persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative within Member States, including those laws prescribing criminal abuse of power. 2. A person may be considered a victim, under this declaration, regardless of whether the perpetrator is identified, apprehended, prosecuted or convicted and regardless of the familial relationship between the perpetrator and the victim. The term victim also includes, where appropriate, the immediate family or dependents of the direct victim and
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z persons who have suffered harm in intervening to assist victims in distress or to prevent victimization. 3. The provisions contained herein shall be applicable to all, without distinction of any kind, such race, color, sex, age, language, religion, nationality, political or other opinion, cultural beliefs or practices, property, birth or family status, ethnic or social origin and disability. The basic principles enjoin upon the offenders or third parties responsible for their behavior to make fair restitution to victims, their families or dependents. Such restitution should include the return of property or payment for the harm or loss suffered, reimbursement of expenses incurred as a result of the victimization, the provision of services and the restoration of rights. It enjoins upon the state to endeavor to provide financial compensation to: 1. Victims who have sustained significant bodily injury or impairment of physical or mental health as a result of serious crimes; 2. The family, in particular, dependents of persons who have died or have become physically or mentally incapacitated as a result of such victimization. The establishment, strengthening and expansion of national funds for compensation to victims should be encouraged. Where appropriate, other funds may also be established for this purpose, including those cases where the State of which the victim is a national is not in a position to compensate the victim for the harm. Furthermore, victims should receive the necessary material, medical, psychological and social assistance through governmental, voluntary, community based and indigenous means. In the line with these core guidelines, the Indian judiciary has laid down the following broad parameters in assisting the victims of rape in the Delhi Domestic Working Womens Forum vs. Union of India:9 1. The complainants of sexual assault cases should be provided with legal representation. It is important to have someone who is well acquainted with the criminal justice system. The role of the victims advocate would not only to be to explain to the victim the nature of the proceedings, to prepare her for the case and to assist her in the police station and in court, but to provide her with guidance as to how she might obtain help of a different
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z nature from other agencies, for example counseling or medical assistance. It is important to secure continuity of assistance by ensuring that the same person who looked after the complainants interests in the police station represents her till the end of the case. 2. Legal assistance will have to be provided at the police station since the victim of sexual assault might very well be in a distressed state upon arrival at the police station, the guidance and support of a lawyer at this stage and whilst she was being questioned would be of great assistance to her. 3. The police should be under a duty to inform the victim of her right to representation before any questions were asked of her and that the police report should state that the victim was so informed. 4. A list of advocates willing to act in these cases should be kept at the police station for victims who did not have a particular lawyer in mind or whose own lawyer was unavailable. 5. The advocate shall be appointed by the court, upon application by the police at the earliest convenient moment, but in order to ensure that the victims were questioned without undue delay, advocates would be authorized to act at the police station before leave of the court was sought or obtained. 6. In all rape cases anonymity of the victim must be maintained, as far as possible. 7. It is necessary, having regard to the Directive Principles contained under Article 38(1) of the Constitution of India to set up Criminal Injuries Compensation Board. Rape victims frequently incur substantial financial loss, for example some are too traumatized to continue in employment. 8. Compensation for victims shall be awarded by the court on conviction of the offender and by the Criminal Injuries Compensation Board, whether or not, a conviction has taken place. The board will take into account, pain, suffering and shocks as well as loss of earnings due to pregnancy and the expenses of child birth, if this occurred as a result of rape. However sadly enough, not much has been done by the legislature on this front. It has been left solely to the discretion of the courts to award compensation in individual cases to the victims. There has also been some disparity in this regard with some courts awarding huge amounts as compensation while others not awarding any or little amounts.
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z VIOLENCE AGAINST WOMEN INTERNATIONAL STRIDES The laws of rape have undergone vast changes all over the globe. Countries, whether Common Law or civil, have attempted to strengthen its provisions so as to afford the highest level of protection to the hapless victims of this crime. Thus, in some places, the word rape has been substituted with sexual assault or sexual coercion while in others it has been made gender neutral or the element of consent has been done away with, or the marital rape has been recognized. Several international developments have taken place over the years with regard to violence against women. The Convention on the Elimination of All Forms of Discrimination against Women 1979, guarantees women equal rights with men in all spheres of life, including education, employment, health care, suffrage, nationality and marriage. The World Conference on Human Rights, Vienna, 1993, affirmed that womens human rights are a fundamental part of all human rights. The Declaration, for the first time, asserted that womens human rights must be protected, not only in courts, prisons and other areas of public life, but also in their homes. The 1993 UN Declaration on the Elimination of Violence against Women for the first time provided a definition of violence, and included psychological violence in the definition. The international conference on Population and Development Cairo, 1994 affirmed that womens rights are an integral part of all human rights. It stressed that population and development programmes are most effective when steps have simultaneously been taken to improve the status of women. Women Empowerment was the central theme of the conference. The recommended actions for Governments included prohibiting the trafficking of women and children, promoting discussions on the need to protect women from violence through education and establishing preventive measures and rehabilitation programs for victims of violence. The UN Fourth World Conference on Women, Beijing, 1995, recognized that: all Governments, irrespective of their political, economic and cultural systems are responsible for the promotion and protection of womens human rights. This document also specifically declared that violence against women is one of the 12 critical areas of concern and is an obstacle to the achievement of womens human rights.
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z Section 106(q) states that countries should: integrate mental health services into primary health care systems or other appropriate levels, develop supportive programs and train primary health workers to recognize and care for girls and women of all ages who have experienced any form of violence, especially domestic violence, sexual abuse or other abuse resulting from armed and non-armed conflict.10 Thus, recognition of human rights of women has been the core element of all international conferences and conventions. Women are entitled to a free, peaceful and dignified existence, devoid of violence or abuse. The countries of the world have accordingly designed laws to curb violence against women. PUNISHMENT FOR RAPE IN DIFFERENT COUNTRIES- A COMPARISON
GERMANY
Chapter 13 of the German Criminal Code11 deals with Crimes against sexual self-determination Section 174 deals with sexual abuse of wards- whoever commits sexual acts on a person under 14 years of age or allows them to be committed on himself by the child, shall be punishable with imprisonment from six months to ten years and in less serious cases with imprisonment for not more than five years or a fine. Section 177 deals with Sexual Coercion; RapeWhoever coerces another person with force, by threat of imminent danger to life or limb or by exploiting a situation in which the victim is unprotected and at the mercy of the perpetrators influence, to suffer the commission of sexual acts of the perpetrator or a third person on himself or to commit them on the perpetrator or a third person, shall be punishable with imprisonment for not less than one year. Section 178, sexual coercion and rape resulting in death- if the perpetrator through sexual coercion or rape at least recklessly causes the death of the victim, then the punishment shall be imprisonment for life or for not less than ten years.
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z
AUSTRALIA
In Australia, the Criminal Code Act 1995, deals with the offence of rape in the following manner: Section 268.14 Crime against humanity-Rape- a person commits an offence if: the perpetrator sexually penetrates another person without the consent of that person and the perpetrators knows of, or is reckless as to, the lack of consent; and the perpetrators conduct is committed intentionally or knowingly as part of a widespread or systematic attack directed against a civilian population will be punished with imprisonment for 25 years.
CHINA
Chapter IV of the Criminal Law of the Peoples Republic of China 12 deals with Crimes of Infringing upon the Rights of the Person and the Democratic Rights of Citizens. Article 236 of the chapter lays down that: Whoever, by violence, coercion or other means, rapes a woman, is to be sentenced to not less than three years and not more than ten years of fixed term imprisonment. Whoever has sexual relations with a girl under the age of 14 is to be deemed to have committed rape and is to be given a heavier punishment. Whoever rapes a woman or has sexual relations with a girl involving one of the following circumstances is to be sentenced to not less than ten years of fixed term imprisonment, life imprisonment or death: (1) Rape a woman or have sexual relations with a girl and when the circumstances are odious; (2) Rape several women or have sexual relations with several girls; (3) Rape a woman in a public place and in the public; (4) Rape a woman in turn with another or more persons; (5) Cause the victim serious injury, death, or other serious consequences.
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z CONCLUSION: The above sections shows that an offence against women is taken very lightly by just imposing imprisonment for a term ranging from three to ten years and death only in China that too in rare cases. All history attests that man has subjugated woman, to be instrumental in promoting his comfort. He has done all he could do to debase and enslave her mind and now he looks triumphantly on the ruin he has wrought, and says the being he has thus injured is his inferior. Rape on the whole should be considered as a serious offence against humanity not just against a woman. Any person who is guilty of rape should be punished with death penalty. When death is the punishment for rape there will be fear among the people who would perhaps think hundred times before raping a woman. Further, no reform can be successful, unless it is accepted by the people at large. The social attitude towards rape and its victims must change. To achieve this goal, social workers and organizations must make sincere, intensive efforts and organize educative programs, mass awareness camps and advertisements to change the social values. It should be remembered that it is not the sole task of one sector of the society, but of every individual, to cooperate with the criminal justice system, to protest against rape. Everyone must bear the moral responsibility of raising their voices against the occurrence of these inhuman incidents and support their ill-fated victims in all possible ways, so as to establish a society where womanhood is respected, with equal concern and sensitivity.
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z ENDNOTES
1 2
Dr. Dipa Dube,Rape Laws in India(LexisNexis Butterworths,New Delhi 2008) p.1 Bodhisattwa Gautam v Subhra Chakraborty AIR 1996 SC 22 3 AIR 2004 SC 3566 4 Pratap Mishra v State of Orissa AIR 1977 SC 1307 5 AIR 1994 SC 222 6 Justice Palok Basu,law relating to the protection of Human Rights, First Edition(Modern Law Publication) 2002 7 AIR 1996 SC 1393 8 AIR 2004 SC 3566 9 (1995) 1 SCC 14 10 http://www.unfpa.org/intercenter/violence/intro.htm/(Accessed on 20 April 2013 11pm) 11 Promulgated on 13 November 1998, Federal Law Gazette I,p945,p3322(Translated) 12 Adopted by the second session of the Fifth national Peoples Congress on 1 jul 1979 and amended by the Fifth Session of the Eight national Peoples Congress on 14th March 1997
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THE RIGHT TO KILL: THE CASE OF THE BATTERED WOMEN

SHREYAS GUPTA The current law of self-defence within the definitions of the Indian Penal Code is so narrowly defined, that it fails to argue for the case of battered women, who have lost the basic integrity to function as an autonomous individual. The paper calls for a review of the doctrine of self -defence so as to extend it beyond the boundaries of mere physical harm. A need for change in the current regime is looked upon using the case of the battered women. The idea of psychological self-defence is introduced, explained and justification is sought for the same using
constitutionality of the current law and the proposed law. The proposed psychological self-defence doctrine is given a thorough explanation and reference is drawn from common law jurisdictions that have positively identified the issue and amended their law respectively. The example of the battered women is used throughout the paper to exemplify the problem with the current self-defence law. It is used further to substantiate the need for a change within the current doctrine of self-defence. INTRODUCTION The area of Provocation Law, owing to the current judgments in the common law scenario, has evolved up to a level to include the idea of battered women, even though in such cases, a reasonable amount of time passes between the act/s of provocation and the actual commission of the crime. The basic difference lies in the fact that the Provocation in the case of battered women is not sudden and grave but is gradual and spread over a long period of time. The criminal act committed by the battered women is not the result of a sudden one -time provocative act done by the male counterpart. The provocation in such cases constitutes of a series of repeated attacks on her and escalated forms of mental, emotional and moreover physical torture and abuse.
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z The case of R. v. Ahluwalia 1 highlights the fact that exposure to a certain emotion over a prolonged period of time, is acceptable as a reasonable defence using the Partial Doctrine of Provocation. This defence was not disregarded, even though there had been a clear time gap between the provocative acts of the husband and the commission of the criminal act by the woman. Through this research paper, we are trying to establish the fact that most of the women, who have been battered and have ended up committing these crimes, do so under a psychological self-defence. This sort of psychological self-defence has not been properly discussed and assimilated into the law of self-defence and this exclusion forms the basis of this paper. Many
a times, these women are often convicted of homicide or murder, yet what seems problematic to the courts, is an absolute inclusion of this idea of self-defence and the arduous task of incorporating it into such cases, in-spite of the fact that reasonable and ample evidence is present in such cases, so as to prove the prolonged provocation that leads to the actual act of the crime. The doctrine of self-defence is understood and expanded loosely around the physical aspects of the person in question. Section 96 and 97 of the Indian Penal code define Self-defence and the rights that a person has when acting in self-defence. The use of such force so as to protect oneself is justified as self-defence only where the person using such force reasonably believed that he or she was in imminent danger of death or serious bodily injury and there was no other option, but to resort to deadly force to avert that danger. In most of the situation, where the battered woman kills her husband she can use the defence of self-defence when the batterer (the husband) was in the act of battering his wife. However, this defence fails when it is used in cases where the batterer is not involved in any sort of violent act that may affect the accused physically or causes sudden and grievous hurt. The case of Kiranjit Ahluwalia clearly demonstrates similar circumstances, where the accused threw petrol onto her husband in his bedroom, in order to set it alight.2 The contention that seems to stem at this point and is of relevance to most of these battered women who kill their husbands in a similar fashion is that they ought to be protected under the broader meaning of self and that an application of the psychological self-defence is the need of the hour.
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z A careful analysis is to be followed so as to firstly, ascertain the identity of this battered woman and secondly, to reasonably justify the idea of psychological self-defence. We analyse certain cases and examine how the doctrine has been applied in the context of Indian criminal law and why an expansion to the former is necessary in view of the developments within various other common law jurisdictions. STATISTICS AND THE BATTERED WOMAN: Women who have been battered over a prolonged period have been recognized through various empirical studies, reports and other sources. Statistics are essentially and extremely important when being discussed in a court of law, so as to create the need of the inclusion of a certain kind of law in order to adjust with the changing society. The courts should be presented with the particular pattern of violence existent, the relative prevalence of the violence and a cultural pattern of violence against Women.3 In the case of Olga Tellis v. Bombay Municipal Corporation4, the court did accept the fact that a reasonable study and analysis of the statistics of slums should be used in deciding the verdict of the case. The report prepared by NCRB (National Crime Records Bureau) places the total number of crimes committed against women at a staggering 9.8% of the total committed crimes. Whatever be the case at hand, the injuries on women range from simple mental abuse to being attacked and hurt with knives, razors, machetes, broken bottles, iron bars etc. The battered women suffer from broken bones, teeth, miscarriages, concussions etc. Many, if not all are subject to sexual abuses, forced sexual intercourses, group sexual intercourses, bondage etc. THE BATTERED WOMEN SYNDROME: The battered women syndrome came to light during the 1970s, when Walker 5 coined the 3 phase cycle theory and postulated the existence of such a cycle. The cycle involves a series of 3 phases, where the first stage is referred to as the tension building phase. In this phase, the women counter verbal abuses, minor physical abuses and physical attempts by the women to oppose the husband. The second stage is where the tension between the couple rises and the scene turns into an acute battering incident. The characteristics of this stage include severe beating or verbal abuse followed up by severe beating. Phase 3 involves the time when the
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z batterer becomes remorseful, regretful and assures the woman that the relationship between him and the battered woman is bound to exist and the battering incident would not be followed by subsequent ones. The third phase is often the critical phase, as often the tension mounts again and this phase leads on again to the first stage of mild battering. The cycle keeps on repeating and the level of violence inflicted on the woman escalates with each new cycle. Walker further builds upon Seligmans theory of learned helplessness, where the woman trapped between these phases, chooses to passively being battered, even though she has ample opportunities of escaping the same. According to Walker, battered women who have been under constant exposure to painful incidents, lose their will to respond to the harm situation and are eventually trapped in this never ending cycle of battering.6 Moreover, the incentive to escape the cycle is defeated by the financial incapacity7 of these battered women along with the fact that most of their family members and friends encourage them to remain with the batterers and to continue their relationship with them. THE PSYCHOLOGICAL SELF-DEFENCE ARGUMENT The narrow doctrine of self-defence and its application to the cases where a woman is battered, results in the acquittal of only those women, who have killed the husband in an act where the husband was actively engaged in inflicting an injury. The doctrine does interfere or try to protect those women, who kill so as to protect themselves, not from an imminent physical attack on them, but from an extremely serious psychological injury. The idea here is that these women, who actually do this, do so to protect themselves not from an attack that may eventually kill them, but from an injury that can strictly be defined in psychological terms. The women in essence, are unable to escape the vicious cycle of repeated torture inflicted on them. The threats may not be physically imminent however there is a threat of such a nature so as to cause a psychological paralysis within the accused battered woman. The issue is perfectly highlighted in the case of Sara Thronton, who was eventually convicted of murder and her appeal8 was rejected. The case involved around the woman, who was facing her abusive and violent husband, who told her that he would kill her while she slept.9 The convict ended up stabbing her husband. In such a case, the battered woman had been psychologically
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z paralyzed. It could certainly be stated that the attack from the husband could come about at any time, if not immediately or that night itself. This state of the battered women could very well be described as a stage of learned helplessness or to simply put it in blunt words, utter hopelessness. Now, is it reasonable enough that the battered woman be convicted as a criminal and be punished for something which she did purely within the limits of psychological paralysis. We are attempting here to make a distinction between cases where a complete defence to murder or culpable homicide could be sought for. The distinction is to flow from an over-arching principle of psychological self-defence. The attempt seeks to apply this principle over all sorts of criminal offences where there has been the use of a deadly force. The specific use of the battered woman example is deliberate as it perfectly fits within the demands of such a doctrine and its application. Criminal law stems from the assumption and understanding that an accused is not to be convicted or be declared a culprit, if the crime was done without his or her free will. The law is further substantiated by the point that such an act of using deadly force is objective in nature. What this means is that, a reasonable person would do so acting under a natural instinct to protect the self. This virtue is found in existence in the foundations of natural law, and has further been adapted and generalized under the banner of common law.10 The existence of such a doctrine means that a battered woman, who is affected by internal and external conditionality is bound to do the same that a reasonable person would, if faced with similar circumstances. The doctrine of self-defence primarily deals with physical integrity and as such does not deal with other forms of existence such as the psychological integrity of an individual. The proposed psychological self-defence doctrine aims to protect this much excluded aspect of human integrity. The doctrine is an extension of our understanding of the protection of human life under Article 21 of the Indian Constitution. The right to self-defence has to satisfy the provisions of this article. Life in Article 21 is not merely the physical act of breathing. Article 21 has given protection to life as a substantive right and the Article if properly understood, does not prescribe any particular procedure.11
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z The fundamental right to life has to be understood more extensively and an application of Article 21 to the current proposed doctrine, only adds to its relative existence and enactment under law. The fundamental right to life which is the most precious human right must therefore be interpreted in a broad and expansive spirit so as to invest it with significance and vitality which may endure for years to come and enhance the dignity of the individual and the worth of the human person.12 The Article furthers the extent of this right by protecting every limb and faculty through which life is enjoyed. 13 The relative psychological existence of battered women can very well be construed under the application of this Article. The extremely diminished psychological existence of a battered woman essentially violates and nullifies the right of enjoyment of this faculty that is integral to human existence. Indian courts have further interpreted this right to enable a person to be protected against torture. Any sort of torture or cruel, inhuman or degrading treatment would be offensive to human dignity and constitute an inroad into this right to live and it would, on this view, be prohibited by Article 21 unless it is in accordance with procedure prescribed by law, but no law which authorizes and no procedure which leads to such torture or cruel, inhuman or degrading treatment can ever stand the test of reasonableness and non-arbitrariness: it would plainly be unconstitutional and void as being violative of Articles 14 and 21.14 The courts have in effect construed this law so as to protect individuals from cruel and inhuman practices, yet what we argue is a broader application of the same so as to create a broader argument of defence based upon the lines of a psychological existence that has been impliedly acknowledged by the courts in their interpretation of the Article. The current doctrine of self-defence further clarifies the argument that even in cases, where the accused does not wait for the aggressor to cause a grievous injury and acts in self-defence he or she is bound to be acquitted by law.15 The battered woman, who kills her aggressor when he is not in the course of causing hurt to her, is to be protected by the application of this doctrine that does not necessitate that the individual be attacked in the course of her self-defence. A battered woman is also protected by the law that states the inclusion of injuries received by the accused,
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z circumstances whether the accused had time to have recourse to public authorities as factors that are to be examined and considered on the plea of self-defence.16 The proposed defence is not defeated by a strict application of the rule stated above, even if the accused had time to approach public authorities as the accused mostly acts under self-defence in her house which necessitates the use of the castle doctrine. The castle doctrine enables a person to use reasonable force, even deadly force so as to protect himself or herself in cases of violation of the integrity of the individual or the property of the individual at large. The castle doctrine is the basis for the inclusion of self-defence as a doctrine within common and eventually Indian law that adapted it for its own use. The castle doctrine simply enables the individual to use deadly force, when within the limits of ones house, even when one can reasonably approach public authorities. Even in cases where there is no defence evidence but from the prosecution evidence itself there is a probability of the accused having acted in self-defence or at least, there is basis for a reasonable suspicion in that direction, that is sufficient to entitle the accused of an acquittal.17 The psychological injury can constructively be defined as an extreme and extended (in time) impairment of ones psychological functioning, that invariably diminishes or extinguishes the physical existence of an individual. As stated above, the proposed doctrine rests upon the principle that the existence of life is not to be merely perceived strictly in a manner that gives precedence to physical existence, but also to encompass and protect the psychological existence of an individual. In the case of battered women, the psychological meaningfulness and the integrity of the individual is so damaged and diminished that the capacity to function autonomously is completely impaired. The case of R vs Ahluwalia is a landmark judgment, as far as the inclusion of the psychological effects of living in a battering relationship as pleading evidence.18 REVIEWING THE CHANGE IN LAW WITHIN COMMON LAW JURISDICTIONS In the last two decades, there has been a great deal of review and reform around the criminal law related to individuals within intimate relationships. 19 The province of Victoria 20 and Western Australia21 have provisions that allow the accused to respond in self-defence in situation where
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z there may or may not be the existence of an imminent threat to the individual in question. The recommendations set out in the Victorian Law Reform Commission's Defences to Homicide report, were eventually enacted in a new homicide act22 that set out to expand the self-defence doctrine and introduce expert family evidence with regards to family violence within the pleading system. The provisions have made it easier for domestic violence victims to plead selfdefence and be acquitted. The same law has defeated the provisions of provocation law and declared it redundant and outdated.23 In Canada, the law on self-defence has been majorly transformed and simplified in the year 2011 using a new statute.24 It has abandoned the use of justification so as to protect people who are pre-mediate homicide or use contract killers.25 The Supreme Court of Canada in its rulings in 1990 and 1994 has further substantiated on the issue of imminence. It states that as this is an aspect within the Canadian Criminal Code, it acts only to assess the relative threat faced by the accused.26 The case of R. v. Lavallee 27 set out the precedent within Canadian Law, which made expert psychological testimony admissible within the pleading process. Broadly, the law within these jurisdictions has enacted changes so as to include the ideas of psychological hurt, and admission of expert testimony into the trial system. CONCLUSION The inclusion of psychological self-defence within the current doctrines of law may have seemed to be overambitious as it proposes a completely new doctrine based upon the complex paradigm of human psychological existence. However, a closer look at the provisions of the right to life within Article 21 of the Indian Constitution actually allows and creates the need of such a creative and adaptive use of self-defence law. The depiction and usage of the example of the battered women was specifically to simulate the exact conditions, where the current law fails to tackle and address the situation and the existence of this group of tortured souls who have no respite in life, other than their husbands and when the husband take the form of the oppressor, there is no hope left and the women have no recourse to resort to.
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z Contrary to the current law, which gives paramount importance to the physical existence of human life, the proposed doctrine tries to give equal importance to other aspects of human living and essential functioning. The proposed doctrine attempts to give more meaning to the psychological aspects of life that make it worth humane and living. The paper tries to serve the sole purpose of making the law makers aware that a certain group of women exist, who have been badgered and battered throughout their lives at the hands of their husbands and when they resort to violence, the act should be taken into perspective of the situation they reside in and go through. The defence of provocation needs to be extended and its ambit needs to be widened in order to include the interests of these badgered souls.
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z REFERENCES
R. v. Ahluwalia, (1992) 4 All E.R. 889. Id. 3 Asmita Basu, Violence against women: a statistical overview, challenges and gaps in data collection and methodology and approaches for overcoming them (April 11, 2005), available at http://www.un.org/womenwatch/daw/egm/vaw-stat-2005/docs/expert-papers/basu.pdf. 4 (1985) 3 SCC 545. 5 See generally, Lenore E.A. Walker, THE BATTERED WOMAN SYNDROME (3rd ed. 2009).
1 2
Id. Id. 8 R v. Thornton (1992) 1 All E.R. 306. 9 Aileen McColgan, In Defence of Battered Women Who Kill, 13(4) OJLS, 508, 508-529(Winter, 1993). 10 See generally, George P. Fletcher, Crime of Self-Defense: Bernhard Goetz and the Law on Trial, University of Chicago Press(1990). 11 A.K. Gopalan v. State of Madras, AIR 1950 SC 27: (1950) SCR 88; Samatha v. State of A.P., AIR 1997 SC 3297: 1997 (4) SCALE 746: (1997) 8 SCC 191: (1997) Supp 2 SCR 305. 12 Francis Coralie Mullin v. Administrator, Union Territory of Delhi, AIR 1981 SC 746. 13 Id. 14 Munshi Singh Gautam v. State of Madhya Pradesh, AIR 2005 SC 402: (2005) 9 SCC 631 : 2004 (9) SC ALE 390. 15 Mohd Ramzani AIR 1980 SC 1341: 1980 Cri LJ 1010 (SC). 16 Biran Singh 1975 Cri LJ 44(SC); Ramesh Chandra 1982 SCC (Cri) 136. 17 Chandrasekhran Adithripad 1987 Cri LJ 1715 (Ker); Seriyal Udayar 1987 Cri LJ 1058 (SC): AIR 1987 SC 1289. 18 See Supra Note 1. 19 Elizabeth Sheehy, Julie Stubbs and Julia Tolmie, Defences to Homicide for Battered Women: A Comparative Analysis of Laws in Australia, 34 UNSWLRS, 467, 467-469(2012). Canada and New Zealand 20 Id at 470. 21 Id. 22 Id. 23Tyson. D, 'Victoria's New Homicide Laws: Provocative Reforms or More Women "Asking For It"?', 23(2) Current Issues in Criminal Justice, 203, 203-235. 24 Citizens Arrest and Self-defence Act, SC 2012. 25 Supra Note 19, at 470. 26 Id. 27 R v. Lavallee, (1990) 1 S.C.R. 852.
6 7
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ROLE OF MEDIATION IN THE ARENA OF HUMAN RIGHTS DISPUTE

ASHISH KUMAR Mediation has a long history in international relations, and over time the practice has made inroads into other forms of conflict labor, business, family, and community disputes and recently into public policy-making, including environmental issues. Mediation is a distinct form of Alternative Dispute Resolution (ADR), which is consensual, nonadversarial, non-adjudicatory and non-litigative. It is antiquated in its origins, the earliest practice of which could be traced to several ancient civilizations. It is basically a procedure for resolving controversies. In it a neutral intervener assists two or more negotiating parties to identify matters of concern, develop a better understanding of their situation, and based upon that improved understanding, develop mutually acceptable proposals to resolve those concerns. Mediation embraces the philosophy of democratic decision-making.1 Again mediation is a voluntary and confidential way to resolve disputes without giving the decision-making power to someone else (like a judge). It involves sitting down with the other side in the dispute and a third party who is neutral and impartial (the mediator). The mediator helps the parties identify the important issues in the dispute and decide how they can resolve it themselves. The mediator does not tell them what to do or make a judgment about who is right and who is wrong. Control over the outcome of the case stays with the parties. Mediation incurs minimal procedural and evidentiary requirements while providing unlimited opportunity for the parties to exercise flexibility in communicating their underlying concerns and priorities regarding the dispute. The main attraction of mediation is the prospect of reaching a harmonious solution, while preserving the relationship of the parties as opposed to the
confrontational/legalistic approach of traditional litigation. RIGHTS AND MEDIATION The traditional literature on dispute resolution has maintained a careful distinction between rights-based and interest-based approaches in mediation. Disputes that engage legal or other
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z rights or are framed primarily in those terms are seen as lending themselves to adjudicative, often court-based processes, in which disputants present evidence and arguments to a neutral third party who has the power to hand down a binding decision.2 This contrasts with interestbased dispute resolution processes, which encourage the parties to look beyond legal rights to their underlying interests and treat a dispute as a mutual problem to be solved by the parties. 3 Interest-based approaches are seen as the more natural domain and strength of mediation: a process involving a neutral third party who facilitates communication, negotiation and problemsolving by the parties to help them address the dispute constructively and move towards agreement on how to manage or, ideally, resolve it.4 At the same time, the theory and practice of mediation have sought to evolve to allow for the inevitable co-existence of rights and interests in practice. It has done so by defining different modes or styles of mediation to address each, according to the parties preferences or the exigencies of the situation. The key distinction made is between evaluative and facilitative mediation. Evaluative mediation leans the process towards so-called rights-based approaches, and is indeed referred to by some as rights-based mediation.5 The evaluative mediator draws on law, industry practice or other authoritative sources to provide direction to the participants on appropriate grounds for settlement.6 As such, this approach arguably moves towards a form of non-binding, persuasion-based adjudication. By contrast, facilitative mediation focuses more on an interest-based process and a less interventionist role for the mediator. The facilitative mediator focuses on enhancing and clarifying communications between the parties to help them decide themselves what to do, presuming that they are better placed to devise effective solutions than is the mediator.7 THE VIEW FROM THE HUMAN RIGHTS ADVOCACY FIELD This view has been echoed in the discussion of human rights-related disputes that arise between companies and individuals or communities. The international human rights advocacy community has typically insisted that human rights abuses by companies require adjudication-based remedial processes, preferably through the courts. There are numerous, well-founded reasons for the call
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z for improved adjudication in this field, including a desire to consolidate the hard-won international law status of human rights, to deter gross abuses of rights through the public and potentially punitive nature of the litigated process, and the reality that remedy for some rights abuses may be incompatible with a mediated process.8 Yet this support for litigation or other adjudicated processes has been frequently accompanied with a belief that mediation is inherently inimical to human rights, rather than a complementary means to remedy with its own strengths and weaknesses.9 This antipathy to mediation is premised on various factors: the character of human rights both as legal rights and as rights inherent to the individual that cannot be waived; the actual or perceived power imbalances between victim and perpetrator; the public, norm-setting role of the civil law suit, particularly in common law systems; and the appropriate role of the state in addressing abuses that raise questions of criminal liability. So, many in the mediation and legal worlds see either a tension or an incompatibility between the defence of human rights and the process of mediation. In fact, no. Both the specific nature of human rights and the creative potential of mediation to encompass interests suggest the relationship between the two may in many instances be one of mutual benefit and reinforcement.10 First and foremost, mediation enables those who believe their rights have been abused to engage in the process of seeking remedy to take a role in defining what the realization of their human rights or remediation for harms caused should mean in practice. Mediation alone is unlikely to be an adequate vehicle for justice where there is corporate complicity in crimes such as torture, extrajudicial killings or slave labour. State prosecutions have a crucial role to play in such cases.11 But most disputes between individuals or communities and companies that involve human rights do not engage these issues. More typically, they raise labour rights standards, discrimination, the right to access safe drinking water, the right to adequate housing, food or the highest attainable standard of health, freedom of expression or privacy.
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z MEDIATING HUMAN RIGHTS DISPUTES- THE OPPORTUNITIES AND THE CHALLENGES This article does not seek to suggest that mediation is per se a better process for the remediation of human rights abuses than judicial determinations, including litigation. Rather the emphasis is on its legitimacy as an alternative and understanding the strengths it may offer. It is therefore important to consider where the real challenges for mediation may lie. In a mediation setting, the scope to limit advisers on both sides to equal numbers; the predisposition to engage the parties directly, rather than just through lawyers; the ability for human rights to be addressed in the process; and the ability of the mediator to convey information equally to both parties, can arguably go further to mitigate such disparities than the judge in the traditional adversarial setting.12 This all depends, of course, on the quality of the mediator. Power balances between the disputants is considered the most frequent reason behind not preferring mediation over litigation. It involves much more than financial power. They include factors such as status, education, literacy, access to information, security and confidence. However, mediation has an innate capacity to address these power imbalances, not least due to its nature as an empowering process. Relevant qualities include the voluntary nature of the process; the setting of ground rules that include respect for human dignity and the right to speak uninterrupted; the confidentiality of the process, providing a safer haven to express views and get to the underlying issues behind the dispute; and encouragement to the parties to treat each other as equals. Other factors often highlighted include the power of either party to walk away; the mediators role in providing information to the parties; the allocation of equal time to both sides; the possibility of shuttle diplomacy13 as an alternative to face-to-face meetings where direct interaction might intimidate one party etc. This brief summary of the debate on power balances in mediation and litigation is again not to propose that mediation is necessarily the better balancer of power than judicial processes. Rather it is to reflect that rich experience has shown that in some perhaps many instances, mediation will have at least as good a claim on being able to tackle even extreme power imbalances as will the judicial process. As such it remains a legitimate and potentially valuable alternative. The
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z field would be further strengthened if there were better provision for free legal and other expert advice to complainants interested in mediation, comparable to the legal aid available to plaintiffs in lawsuits, as is currently widely practiced under Indian legal system.14 Another challenge for mediation of human rights-related disputes has been the risk that confidential, piecemeal settlements may preclude considerations of the wider public interest in the realization of human rights, and inhibit the advancement of systemic change. The question of transparency regarding the outcomes of mediated disputes remains one of the trickiest areas to navigate, particularly where human rights issues are in play. The current presumption in favour of confidentiality of mediated outcomes should be reversed, with the presumption instead favouring some level of transparency unless this itself would interfere with human rights. Mediation being a flexible mechanism, can ensure whether the confidentiality clause with respect to mediation of human rights disputes is necessary or not. What is required here is the acceptance of the basic question that mediated outcomes involving human rights issues can be compatible with the realization of human rights in theory.15 CONCLUSION I have argued in this paper that mediation has a legitimate and compelling role to play alongside litigation as a means of addressing human rights-related disputes between companies and individuals or communities. Traditional thinking in the dispute resolution and human rights advocacy fields that human rights and mediation are either incompatible or awkward bedfellows is misguided. Through an understanding of human rights not only in terms of outcomes, but also in terms of processes aimed at advancing human dignity, a more felicitous relationship between the two becomes apparent. The interplay of rights and interests in dispute resolution is not a zero-sum equation.16 Rather they may be mutually supportive, with interests closely informing the experience of human rights in practice and suggesting how balances between competing rights can best be struck. While mediation processes must take care not to produce outcomes that set back human rights, they offer constructive ways to navigate the open spaces that exist within the parameters of basic human rights standards. The capacity of mediation to support inclusion, participation, empowerment and attention to vulnerable individuals and groups represents a further contribution towards the advancement of human rights. Further in an immensely
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z heterogeneous country like India, where conflicts relating to ethnicity, language, race, cast, creed, belief etc, have given birth to numerous instances of human rights violations, there seems a valid reason behind according mediation as an alternative mode to addressing human rights issues. However, mediation, like litigation, faces challenges as a means to uphold human rights. In particular, it needs to address questions as to how it can redress often extreme power imbalances between the parties; how it can engender systemic change; and how it should balance the need for some confidentiality with legitimate demands for greater transparency. Innovations in regard of all such challenges are being developed and assessed. Evidence appears greatest with regard to mediations ability to address power imbalances. More work is needed to understand how far the mediation model can go in providing greater transparency and supporting systemic change, thereby bringing individual remedy together with the broader public interest. REFERENCES
1 2
Henry J. Brown and Arthur L. Mariot , ADR Principles and Practice , 2nd edition, (Sweet & Maxwell 1997) p. 127 Carrie Menkel-Meadow et al., eds. Mediation: Practice, Policy and Ethics (Aspen, New York 2006), p.91 3 Ibid 4 Ibid 5 Ibid, p.112 6 Leonard L. Riskin, Mediator Orientations, Strategies and Techniques, Alternatives Dispute Resolution Journal, Vol 4, 1994, pp. 85- 111 at p. 102 7 Ibid. 8 Ibid, p.116 9 John Braithwaite, Building Legitimacy Through Restorative Justice, in T. Tyler (ed), Legitimacy and Criminal Justice: International Perspective (Russell Sage, New York 2007) p.146-162 at p. 152 10 Ibid, p.170 11 Of course, in jurisdictions where civil action for these kinds of abuses is also possible, mediation can still have an important role to play. See Supra Note 6 at p.107 12 Ibid, p.166 13 Shuttle diplomacy - international negotiations conducted by a mediator who frequently flies back and forth between the negotiating parties as for example, Kissinger's shuttle diplomacy in the Middle East. Source http://www.thefreedictionary.com/shuttle+diplomacy. (Last accessed on 20 January 2013, at 08:25 am) 14 Hiram E. Chodosh, The Eighteenth Camel: Mediating Mediation Reform in India , German Law Journal, Vol.9, 2008, pp. 251-283, available at http://www.germanlawjournal.com/index.php?pageID=11&artID=933. Last accessed 28 January 2013, at 10:30 pm) 15 Susan Strum and Howard Gadlin, Conflict Resolution and Systemic Change, Journal of Dispute Resolution Vol1,2007, pp. 15-32 at p.3 16 Of or relating to a situation in which a gain is offset by an equal loss. Collins Cobuild English Language Dictionary,Harper Collins Publication, London, 2006
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RULE OF LAW AND SOUTH ASIA: A VIEW FROM THE TOP

MOHAMMAD RUBAIYAT RAHMAN INTRODUCTION The term 'rule of law' is used as opposed to the concept of 'rule of man'. The primary meaning of rule of law is that the ruler and the ruled must be bound by the same law. Rule of law in some form may be traced back to Aristotle, and has been upheld by Roman jurists; Natural law thinkers of the medieval era; and also by enlightenment philosophers such as Hobbes, Locke, Rousseau, Montesquieu and the American founders; German philosophers Kant, Hegel. 1 No separate law or system can be provided for the ruler. Law is the cement of society 2 , synchronizing all the parts of society in a harmonious way. The debate over the meaning of the term law has been going on over a long period of time. In a very simple and generic sense, it is meant to be a set of standards applicable to judge that is related to the quality of welfare as well as protection of dignity of human beings. To explain the rule of law, Waldron makes an analogy with democracy and contends that a state is not a democracy unless it regularly holds free elections to determine who occupies the highest political offices3. The International rule of law has long been deemed as a vehicle for promoting economic development. From around 1997, the development community began using this term seamlessly with good governance. The World Bank and the International Monetary Fund (IMF), limited by their Charters from directly dappling in domestic political affairs, have emphasized rule of law and good governance. 4 Developing States have themselves embraced the rule of law,
acknowledging in the 2005 World Summit outcome that good governance and the rule of law at
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z the national levels are essential for sustained economic growth, sustainable development and eradication of poverty. 5 However, rule of law at the international level has a quite different meaning from the scholastic opinions provided by jurists like AV Dicey. International rule of law may be understood as the application of rule of law principles to relations between States and other entities. Here, the rule of international law could privilege international law over national law. If the rule of law envisages Government by law or according to law, then rule of law exists in every country whether it is ruled by a king, or a military dictator or a president. This is because they only rule or had ruled the country according to law,, where moral force cannot be found even in the crevice of those regimes' tomb. In this sense the Government of Hitler, Mussolini, Louis XIV, HM Ershad of Bangladesh (a military dictator), General Zia and Parvez Musharraf of Pakistan - all come under the rubric of rule of law. This is an irony as no man with a minimum conscience will relate these Governments to the principles of rule of law.6 The withering moral force of the South Asia regions transform the concept of rule of law into a myth.
INTIMACY BETWEEN RULE OF LAW AND MORAL FORCE As to the relationship between law and morality, it can be stated that law functions as a means to promote and protect moral values, because the realization of justice is simply not possible without regard to such values i.e, right or wrong. The most famous legal moralist is Patrick Devlin, who argues that a shared morality is essential to the existence of a society. Law for its effective functions and desired results is largely dependent on morality. Many Legal Positivists would agree that law is morally neutral although it is unclear whether this can serve as a basis for distinguishing legal positivism from natural law. For example, Acquinas seems to agree that
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z human law is morally neutral. He believes that we have no automatic moral obligation to obey laws made by human beings. Legal obligations have no automatic moral force.7 Morality is deemed as a refill which sometimes need laws to help in filling of the gaps. But the same is also true in reverse. Often law is refilling and needs moralitys help to make it less so. Legal norms, like moral norms, often conflict among themselves, and often such conflicts cannot be resolved using legal norms alone. Indeterminacies of language and intention on the part of law-makers, moreover, can afflict law in such a way as to frustrate its role as a filler of moral gaps. Legal conflict and indeterminacy, require extra-legal resources to overcome them. Dworkin, in an article, argued that law was best viewed as a social practice with a meaning or point. Understanding any social practice requires an interpretive attitude, which for Dworkin necessarily requires some perspective internal to the practice. He began with the claim that most competing conceptions of law could accept the proposition that the meaning or point of law is to justify Government coercion in accordance with past political decisions about when such force is justified. Interpreters should make sense of law by providing abstract accounts that both fit past legal practices and decisions, and justify them through the derivation of moral principles that make the best, most attractive sense of those practices and decisions. Thus, moral principles are part of law. John Rawls argues that there is a moral obligation to obey law qua law in societies in which there is a mutually beneficial and just scheme of social cooperation. The thing that gives rise to a moral obligation to obey law qua law in such societies is a duty of fair play. Fairness requires obedience of persons who intentionally accept the benefits made available in a society organized around a just scheme of mutually beneficial cooperation. There are a couple of problems in this
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z theory. First, Rawlss argument does not establish the existence of a content-independent obligation to obey law as the obligation arises only in those societies that institutionalize a just scheme of social cooperation. Secondly, even in such societies, citizens are not presented with a genuine option to refuse those benefits. Law, unlike morality, is made by someone. Moral, in this context, is the name given to the kind of obligation that legal obligations are claimed by law to be. Legal obligations are claimed to be obligations that are not merely claimed, and hence are not merely legal. They are claimed to have a standing beyond law, or to bind (as it is sometimes put) in conscience as well as in law. When a legal norm is morally justified, to generalize, it becomes part of morality.
RULE OF LAW IN SOUTH ASIAN REGION South Asia is known as one of the largest regions in the world. It is a land of 1.5 billion people, which is approximately one-fourth of the world population.8 South Asia is a conglomerate of eight countries: Afghanistan, Bangladesh, Bhutan, India, Maldives, Nepal, Pakistan and Sri Lanka. As a region it is unique fromthe rest of the world in its geography, ethnicity, culture, climate and even in disputes. Generally, it has been pledged in the preamble of several Constitutions of the South-Asian countries, to realize a society where the rule of law will be secured and gilt edged. Article 27 of the Constitution of Bangladesh guarantees that all citizens are equal before law and are entitled to equal protection of law. Article 31 of the same guarantees that it is an inalienable right of every citizen to enjoy protection of the law, and to be treated in accordance with law, , wherever he may be, and of every other person for the time being within Bangladesh, and in particular no
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z action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law. The Supreme Court of India makes a remarkable progress in the arena of jurisprudence of rights as well as prevention of abuse of power. Despite the Constitutional safeguard in Article 21 of Indian Constitution and explicit procedures exposed by the guidelines of the Supreme Court, the law enforcement agencies of India are facing allegations of misuse in tandem with abuse of powers. The Malimath Report of 2003, at its para.7.26.2 illustrates the situations very elaborately. The 154th report of Law Commission of India also states that such misuse is detrimental in all aspects and senses. KR Narayanan, former President of India, in his address to nation on August 14, 2000 states: At every social and political level there is a crying need to speak out against crimes and violence of all kinds, but every such rhetoric is absent in India today. This statement is sufficient enough to show how the misuse of power is politically encouraged. Rule of law implements accountability and representation in order to promote the moral perspectives of the system of governance. 9 In western societies, the citizens are prepared to respect the rights of fellow citizens. Enforcement of law in those societies is secured largely by the preparedness of citizens to uphold the sanctity of law. They take law as a friend protecting their rights. Ironically, citizens of South Asia deem law from a different perspective which is negative in nature. Rather than notion of obedience, the legal rules are considered as an (Austinian) imperative system of rules.10 The moral force in rule of law has not yet reached at a very stout level in this South Asian region to consider the image of legal regime as notion of obedience.
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According to the recent edition (2012) of a five-year-old index released by the World Justice Project (WJP), South Asia performed most poorly among the major regional blocs, with Pakistan and Bangladesh earning the worst scores. India scored in the top half on limited Government and Government transparency but was among the worst 15 countries on corruption and second to last on order and security. 11 Indias independent judiciary, free-speech protections and relatively open government were countered by corruption and serious security concerns, while Pakistan was hampered by a low level of Government accountability, corruption, a weak justice system and a poor security situation.12 The rule of law, with withering moral force, of this South Asia region transforms the concept into a myth. Consequently, peoples faith and trust on the legal system is jeopardized. The situations of South Asia reiterate that the jurisprudence of developed societies cannot address typically unique problems of the developing societies of this region. It can be stated that rule of law in South Asia is minimal. The long history of influence of authoritarian regime is one of the main reasons behind such pitfall. In such a society, law is deemed as a means of maintaining the social discipline. The freedom and rights of people do not constitute the matter of concern of law.
REASONS BEHIND SOUTH ASIAS THROMBOSIS OF RULE OF LAW The rule of law and legal system is intrinsically connected concepts. Matthew H. Kramer who makes a distinction between jurisprudential phenomenon of the rule of law and moral-political ideal of the rule of law says that as a jurisprudential conception, the rule of law sets necessary conditions for the legal system13. Jeremy Waldron states that some things are green, some are
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z blue; but on the borderlines there are blue or green cases of uncertainty 14 . The same is applicable to the South Asia region also. However, the following practices, which is very much traditional positivist doctrines of law, should be stopped in South Asian region in order to ensure that the rule of law is spirited with moral force: 1. Law of the society is made by its State for the purpose of regulating behavior of its citizens. 2. Citizens comply with the provisions of law because of fears of punishment. 3. Law, here in South Asia, is prescriptive in nature. 4. The rigid nature of law turns state into a vanguard of civilized society. All these points refer negative notion of law; represents authoritarian system of Government. Hence, no legal system in South Asia can claim that it has respect to the concept of rule of law. 15 Therefore, the entrenching gap between the expectations of the people and the performance of the mechanisms of the legal system depicts the scenario that rule of law is still deficit of moral force in South Asia.
CONCLUSION: Although neither the International Covenant on Civil and Political Rights (ICCPR) nor the International Covenant on Economic, Social and Cultural Rights (ICESCR) mentions rule of law, the Universal Declaration of Human Rights mentions rule of law only in passing in the preamble, suggesting in typically cryptic fashion that human rights should be protected by the rule of law. According to Dr. Kamal Hossain, eminent jurist of Bangladesh, for establishing the rule of law there are requirements of good will and consensus amongst people along with appropriate legal frameworks.16
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In the society of South Asia, law, due to its ineffective applicability of rule of law, fails to flourish peoples aspirations; promotion of their creativity; free choice of selecting values and ways of leading life. The participation of common people in producing new norms is tacitly discarded. In the name of law making, South Asian States institutions happen to impose their opinions on the shoulder of common people. The blind copying of laws from the developed societies and strategically unplanned observance of principles of law and justice from societies having institutionally and structurally different set up and henceall of these are major reasons behind the fragile edifice of rule of law in the South Asia region. REFERENCES
1 2
Richard Fallon, The Rule of Law as a Concept in Constitutional Discourse, 97 COLUM. L. REV. 1 (1997) Williams, Glanville, Learning the Law, Eleventh Edition, (Universal Law Publishing Co. 2009) p.1 3 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1273005 (Accessed on 24 April, 2013, 4:50 pm) 4 Thomas Carothers, The Rule of Law Revival, 77 FOREIGN AFF., 2003 pp. 3-13 at 5 5 Chesterman, Simon (2012), Rule of Law, in R Wolfrum (ed) The Max Planck Encylopedia of Public International Law, 8:1014-1022 6 Halim, Abdul, Constitution, Constitutional Law & Politics, Third Edition (CCB Foundation Press 2010) p. 407 7 David Lyons, Ethics and the Rule of Law, (Cambridge University Press 1983) p. 106 8 M. Dwivedi, South Asia Security, First Edition (Kalpez Publications 2009) p. 244 9 Sangroula, Dr. Yubaraj, Jurisprudence: The Philosophy of Law (KSL 2010) p. 32 10 Sangroula, Dr. Yubaraj, Jurisprudence: The Philosophy of Law (KSL 2010) p. 281 11 http://www.ipsnews.net/2012/11/rule-of-law-strongest-in-nordics-weakest-in-asia/ (Accessed on 24 April, 2013, 5:20 pm) 12 http://www.ttrweekly.com/site/2012/11/rule-of-law-how-asia-stacks-up/ (Accessed on 22 April, 2013, 3:10 pm) 13 Matthew H. Kramer, Objectivity and the Rule of Law, (Cambridge University Press, 2007), p.143. 14 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1273005 (Accessed on 24 April, 2013, 4:50 pm) 15 Sangroula, Dr. Yubaraj, Jurisprudence: The Philosophy of Law (KSL 2010) p. 289 16 http://archive.thedailystar.net/newDesign/news-details.php?nid=262764 (Accessed on 24 April, 2013, 5:10 pm)
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SUMMARY DISMISSAL IN LABOUR LAWS: NEED TO REFORM EXISTING LAWS IN INDIA

RISHIKA ARORA HISTORICAL BACKGROUND 1 The history of labour legislation in India is naturally interwoven with the history of British colonialism. The industrial/labour legislations enacted by the British were primarily intended to protect the interests of the British employers. Considerations of British political economy were naturally paramount in shaping some of these early laws. The earliest Indian statute to regulate the relationship between employer and his workmen was the Trade Dispute Act, 1929 (Act 7 of 1929). Provisions were made in this Act for restraining the rights of strike and lock out but no machinery was provided to take care of disputes. There were substantial modifications in the post-colonial era because independent India called for a clear partnership between labour and capital. The content of this partnership was unanimously approved in a tripartite conference in December 1947 in which it was agreed that labour would be given a fair wage and fair working conditions and in return capital would receive the fullest co-operation of labour for uninterrupted production and higher productivity as part of the strategy for national economic development and that all concerned would observe a truce period of three years free from strikes and lockouts. Ultimately the Industrial Disputes Act (the Act) brought into force on 01.04.1947 repealing the Trade Disputes Act 1929, it has since then remained on statute book. OBJECT OF THE ACT The Act is therefore, the matrix, the charter, as it were to the industrial law. The Act and other analogous State statutes provide the machinery for regulating the rights of the employers and employees for investigation and settlement of industrial disputes in peaceful and harmonious atmosphere by providing scope for collective bargaining by negotiations and mediation and failing that; by voluntary arbitration or compulsory adjudication by the authorities created under these statutes with the active participation of the trade unions. With the aid of this machinery; industrial law covers a comprehensive canvas of state intervention of social control through law to protect directly the claims of workers to wages, bonus, retrial benefits (such as gratuity,
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z provident fund and pension, claims), social security measures (such as workmens compensation, insurance, maternity benefits, safety welfare) and protection of minimum of economic wellbeing. Job security has been particularly protected by providing industrial adjudication of unfair discharges and dismissals and ensuring reinstatement of illegally discharged or dismissed workmen. Protection was extended by laying down conditions of service in specific industries and establishments and limiting the hours of work. By and large, all these subjects are connected with employment or non-employment or terms of employment or with the conditions of labour of industrial employees. The basic intent in the mind of the framers of the Act was to provide security and protection to the labour class as against the capitalist. The principal techniques of dispute settlement provided in the Industrial Disputes Act (hereinafter referred as ID Act) are collective bargaining, mediation and conciliation, investigation, arbitration, adjudication and other purposes. INTRODUCTION Our experience with the British left us embittered and disillusioned. Having witnessed their thoughtless exploitation of our resources, the Indian conscience deemed capitalism as bad and started afresh on a socialist path with the good wishes of several countries and bright predictions from several economists who at that time favoured such a shift in focus. But somewhere along the way we got lost in the dreary cobwebs of bureaucracy, our welfare goals were reduced to mere vote-gathering methods and our policies became stifling. The 1991 reforms finally unshackled the economy in a big way with Liberalization, Privatization and Globalization being the new motto to be achieved. Major reforms swept through the economy to create a profound impact on all facets of the nation ranging from industries to common masses2. With the introduction of new reforms being majorly inclined towards favouring common masses somewhere in the middle of the path there emerged a need to relax employee-centric stringent labour laws. This paper conducts comparative approach to analyze the term summary dismissal among legal context of Austria and Taiwan. It will contribute to understand status quo of existing regulations
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z and related laws regarding misuse of laws protecting workman or labour, as well as help to modify the related law and set up work rule for addressing the ever-growing phenomena within workplace. The approach of the paper would be focused on providing a description of the kinds of disputes existing under labour laws i.e. Industrial Disputes, moving on to provide an elaborate description as to how industrial disputes are settled in Labour laws and the legal provision relating to termination of services. The next part of the paper provides an elaborate description of the sequence of events leading to strikes and agitation faced by the Maruti Suzuki India Limited over the past two years, following incident leading to the need to relax stringent labour laws and incorporate provisions relating to summary dismissal would compare the laws relating to summary dismissal existing in Taiwan, Austria and India. The last part of the paper provides a conclusive remark along with proposed suggestion dealing with the concerned issue. Pre-requisite conditions for a dispute to be applicable under the Act Before the provisions of the 1947 Act may become applicable, certain pre-requisite conditions must exist that the dispute must relate to an Industry under Section 2(j) of The Act. The definition of industry in this clause is both exhaustive and inclusive and is quite comprehensive in its scope. The first part says that it means any business, trade, undertaking, manufacture or calling of employees and then goes on to say that it, includes any calling, services employment, handicraft or industrial occupation or avocation or workmen. Thus one part of the definition defines it from the standpoint of the employer; the other from the standpoint of the employees. Under this Act an Industrial Dispute can be raised only by workman employed in an industry. Section 2(s) of the Act defines workman, Workman means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute.
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z One of the basic short-comings that are being faced by the Industrial Disputes Act is to define the conduct of a workman within; along with the rights and duties that are required to be exercised irrespective of the status, position or wages. Only disputes covered under the definition can be referred for conciliation or adjudication under the Act. The definition of Industrial Dispute in section 2(k) can be divided into two parts namely between employer-employers, employer-workman and workman-workman. Subject matter of dispute could be connected with the employment or non-employment, the terms of employment or with the condition of labour. Mechanism of Dispute Settlement There are several techniques of dispute settlement provided in the I.D. Act are collective bargaining, mediation and conciliation, investigation, arbitration, adjudication and other purposes. COLLECTIVE BARGAINING Collective bargaining is a technique by which disputes of employment are resolved amicably, peacefully and voluntarily by settlement between labour unions and managements. Under the provision of the Act, the settlement arrived at by process of collective bargaining with the employer has been given a statutory recognition under Section 18 of the Act. Two types of settlement have been recognized: 1. Settlement arrived in the course of conciliation proceeding before the authority. 2. Settlement not arrived in the course of conciliation proceedings but signed independently by the parties to the settlement. Section 19 of the Act prescribes the period of operation inter alia of such a settlement and envisages the continuation of the validity of such a settlement unless the same is not replaced by another set of settlement, while Section 29 prescribes the penalty for the breach of such a settlement. MEDIATION AND CONCILIATION
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z Under the Act, an effective conciliation machinery has been provided which can take cognizance of the existing as well as apprehended dispute, either on its own or on being approached by either of the parties to the dispute. The Act further makes conciliation compulsory in majority of disputes. INVESTIGATION Section 6 of the Act empowers the government to constitute a court of inquiry, for inquiring into any matter pertaining to an Industrial Dispute. The procedure of the court of inquiry has also been prescribed by Section 11. While the report of the court is not binding on the parties, many time it paves the way for an agreement. ARBITRATION Voluntary arbitration is a part of the infrastructure of resolving the Industrial Dispute in the Industrial adjudication. Section 10 of the Act provides for the provision for resolving the Industrial Dispute by way of arbitration, which leads to a final and binding award. ADJUDICATION Adjudication means a mandatory settlement of Industrial Disputes by labour courts, Industrial Tribunals or National Tribunals under the Act or by any other corresponding authorities under the analogous state statutes. By and large, the ultimate remedy of unsettled dispute is by way of reference by the appropriate government to the adjudicatory machinery for adjudication. The adjudicatory authority resolves the Industrial Dispute referred to it by passing an award, which is binding on the parties to such reference. PROCEDURE FOR TERMINATION OF SERVICES Under the present law any Industrial Establishment employing more than 100 workers must make an application to the Government seeking permission before resorting to lay-off, retrenchment, or closure of undertaking. Employers resorting to any of the said forms of creating job losses without seeking prior permission as aforesaid act illegally and workers are entitled to receive wages for the period of illegality. However, an Industrial Establishment employing less than 100 workers can retrench its surplus employees in accordance with the provisions provided under Section 25F, 25G & 25H of the Act.
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z Retrenchment under that Act is defined as: Section 2(oo) Retrenchment means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action but does not include(a) Voluntary retirement of the workman; or (b) Retirement of the workman on reaching the age of Superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or [(bb) Termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or] (c) Termination of the service of a workman on the ground of continued ill-health. Under Section 25F of the Act the retrenchment compensation to be offered to a retrenched workman has to be 15 days salary for every completed year of service and an amount equivalent to one month salary. However, the service of an employee can be terminated by an order of dischargewithout complying with the provisions contained in Section 25F of the Act if such an employee has been appointed for a fixed period under the contract of fixed term appointment and his/ her services is terminated either on the ground of expiry of the fixed period or in stipulation of the provision contained therein. It is important to note that under the provision termination should not be as a measure of punishment by way of disciplinary action as under Section 2 (oo) of the Act. Existing service conditions cannot be unilaterally altered without giving a notice of 21 days to the workers and the trade union. Similarly if an industrial dispute is pending before an authority under the Act, then the previous service conditions in respect of that dispute cannot be altered to the disadvantage of the workers without prior permission of the authority concerned.
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z A permanent worker can be removed from service only for proven misconduct or for habitual absence or due to ill health or on attaining retirement age. In other words the doctrine of hire and fire or summary dismissal is not approved within the existing legal framework. Employers must follow principles of natural justice, which again is an area that is governed by judge-made law. This again is identified as an area where greater flexibility is considered desirable for being competitive. UNREST IN MARUTI SUZUKI MANESAR PLANT A significant example aimed at lifting the veil on the situation and the potential for workers autonomy that it contains which took blow twice in the year 2011 and 2012. The first strike that broke out on the 4th day of June 2011 was for formation of a new union. The 13-day strike at Maruti Suzuki, Indias largest automobile manufacturer has ended with an agreement being signed. The strike at the Manesar was over the issue of forming a second trade union with external affiliations. The company already has an older union the Maruti Udyog Kamgar Union (MSEU) that is dominated by workers from the older Gurgaon plant, near Delhi. Manesar workers have denounced this union as management-owned. The accord entails the management taking lenient action against the striking workers, including reinstating 11 sacked employees. But it is silent on the formation of the new union. The strike ended after 13 days of complete shut-out. Due to the evident effect and loss suffered by the company the management refused to let the workers participating in the strike work without signing a good conduct bond that only 18 workers signed which resulted in a standoff. The month-long standoff between the Maruti Suzuki India Ltd. (MSIL) management and agitating Manesar (Haryana) plant workers ended on Saturday the 17th September, 2011. As per the agreement brokered by the Haryana Government, MSIL will conditionally take back 18 suspended trainees, while the workers have agreed to sign the good conduct bond' as desired by the management. However, MSIL has said it would not take back the 44 regular employees who were suspended earlier, no work no pay policy' would be implemented for the standoff period. On 3rd October, 2011 the management refuses entry to 1200 temporary workers who participated in the demonstration and the occupation. Inside the factory, the management decides to transfer a large number of workers from one job to another, which provokes strong discontent3.
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z Maruti Suzuki, which seemed to have put its labour problems behind after workers resumed duty on 3-10-2011 on terms widely perceived to be favourable to the management, found itself facing renewed unrest on Friday evening (i.e. 7th October, 2011) Workers at its Manesar car plant went on a flash strike, in which no notice is served on the management, virtually seizing the premises in protest of the management's decision not to allow 1,100 casual workers to enter the factory4. That ended after 14 days of unrest after signing a tripartite agreement between the management and the workers. On 15th October, 2011 Workers at Suzuki Power train and Suzuki Motorcycles decide to end their occupation and continue the strike outside. The MSEU publishes a communiqu saying that they will maintain the unity between temp workers and permanents and that they call on all trade unions to show support 5 . Following the 3month long unrest in the factory the management dismissed 546 permanent workers on disciplinary grounds that received divided opinion if it was indeed a case of dismissal or retrenchment. The incidence is self-explanatory of the misuse of the protection provided to the workers under the labour laws. Such incidents are times of distress for an employer where they have no resort to turn too; can such an incident be covered under the retrenchment provisions or dismissal? If the management acts on the provisions of retrenchment it bars them from dismissing an employee under the Act as a measure of punishment by way of disciplinary actions. If an employee waits long enough for an act to turn into an act of gross misconduct wherein the management suspends or terminates employees under Industrial Employment Standing Orders Act as a disciplinary action against his misconduct they are subject to violent demonstrations. On July, 2012 in the Manesar Maruti Suzuki factory an altercation between Jiyalal, a worker and his supervisor took place on the shop floor. Jiyalal allegedly slapped the supervisor, who in turn complained about it to the management as a result of which Jiyalal was suspended. The workers union, Maruti Suzuki Workers Union, objected to the suspension and demanded that Jiyalal be reinstated. The companys management met with union members to hold talks on the issue. Following the talks between the two parties, union members present in the conference room attacked the companys senior management with chairs and rods, broke cars and burned them as informed by the HR officer ASI Harish Kumar of the CID, where 85 were injured in
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z the violence. A huge mob gathered outside the companys gates in the evening at around 6 p.m. and torched the security office and the fire safety room at Gate no. 2 leading to death of a manager. The above incidents make us think who exactly the sufferer is in the present times; the employee or the employer? With the company losing business worth hundreds of crores; management and administrative staff being injured and killed due to such agitated movements taking the form of rebel , can we really say there are appropriate laws protecting the interest of the employers? Indian Labour Laws make it difficult for big companies to fire their employees until it does not constitute an act of such a degree and extent as that of the incident mentioned above, and by that time it is too late, and there has been a huge amount of loss of person and property. Indian Labour laws are still blurred with the colonial baggage of capitalist being bad. It seems over the time with laws and precedents providing a strong niche to protect workers over capitalist it seems the time has evolved to extent laws protecting the management and administration against such gross upsurge and unrest. SUMMARY DISMISSAL Premature termination is an act of declaration by which the employment relationship is terminated ahead the time of maturity for significant reasons. If the employment relationship is ended by the employer for substantial reasons, one talks of summary dismissal. The declaration need not be given in a special form. Its very important for the premature termination to be declared at once if a party has valid grounds. If an employer delays for too long, he loses his right to terminate prematurely. If a premature termination is declared, the substantial reason itself need not be given in the declaration at once. The possibility of premature termination always presupposes that one party cannot objectively be expected to continue the employment relationship, even for the period of notice. The employment relationship can be prematurely terminated for only substantial reasons. Summary dismissal is the dismissal of an employee on the spot and without notice. Normally an employee will be entitled to the notice period provided by his contract or to the relevant minimum statutory notice period if greater. Only in exceptional circumstances will dismissal without notice be justified signifying that the employer can no longer be reasonably expected to
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z continue the relationship even just for the period of notice. An employer is entitled to dismiss an employee without notice which is referred to as summary dismissal, for issues of gross misconduct. Such issues are normally detailed in the employer's disciplinary policy, work rules or even in the law. The term denotes unilateral termination of the employment relationship by the employer without observing the required period of notice, only justified circumstances for example untrustworthiness; incapacity to continue performing the agreed work; carrying on an activity in competition with the employer; unjustified absence from work; and acts constituting assault or defamation. These are merely examples cited that can be listed along with the substantial reasons, other reasons of comparable seriousness may also justify summary dismissal. Hence, when an employer terminates a contract of employment with or without noticethe employee gets paid for the time he or she worked, plus any leave pay (if this is owing). With notice means the employer tells the employee to leave work after working for the required term of notice as prescribed in the contract of employment. Without notice means the employee leaves immediately and is not paid out notice. Dismissal without notice is called Summary Dismissal. Whilst Summary Dismissal might take place where an employee is guilty of a very serious act (for example theft), it will still be unfair procedurally if a fair hearing has not been held before the dismissal. If the employee has been summarily dismissed (with fair reasons and following a fair hearing), this means the employee has to leave immediately and the employer does not have to make any payment in lieu of notice.6 THE TERMS AND PRACTICES OF SUMMARY DISMISSAL IN AUSTRIA 7 Term used in Austria to denote unilateral termination of the employment relationship by the employer without observing the required period of notice. According to law, it is justified only where there is a substantial reason signifying that the employer can no longer be reasonably expected to continue the relationship even just for the period of notice. In the case of white-collar workers the law Salary-Earning Employees Act of 1921 Par. 27 lists, as examples, a number of such reasons including the following circumstances on the employee's side: untrustworthiness; incapacity to continue performing the agreed work; carrying on an activity in competition with the employer; unjustified absence from work; and acts constituting assault or defamation. Since
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z the substantial reasons listed are merely cited by way of example, other reasons of comparable seriousness may also justify summary dismissal. In the case of manual workers, by contrast, an exhaustive list of reasons dating from the last century still applies. There are rising number of rulings in Austria, in which more and more cases of untrustworthiness are being regarded as a ground for summary dismissal8. Where summary dismissal is based on a substantial reason attributable to culpable conduct on the part of the employee, the latter has no entitlement to severance pay. If, on the other hand, it is pronounced without a substantial reason, although it ends the employment relationship with immediate effect the employee who has been dismissed is entitled to compensation. This includes, in particular, pay in lieu of notice, i.e. the pay that would have been due up to the end of the relationship under a fixed-term employment contract or in the event of dismissal with the required period of notice under an employment contract of unspecified duration, although subject to certain conditions the dismissed employee's income from other sources may be taken into account. However, the dismissed employee is also entitled to apply to the courts to have such summary dismissal declared invalid in accordance with the provisions on general protection against dismissal. THE TERMS AND PRACTICES OF SUMMARY DISMISSAL IN TAIWAN According to the Labor Standard Law (LSL)9, it is justified only where there is a substantial reason signifying that the employer can no longer be reasonably expected to continue the relationship even just for the period of notice. There is no difference between white-collar workers and manual workers like the way it is in Austria, both applied to the same principles in Taiwan. Causes for dismissal due to employee misconduct are in practice generally enumerated in the employers work rules. The Labor Standards Law only requires that an employer who continuously employs 30 or more workers must draw up work rules, file them with the local Labor Standards Inspection Office, and make the work rules known to the employees10. STATUS RELATING TO SUMMARY DISMISSAL UNDER INDIAN LAW An individual may enter into a contract with a corporation to render services to such a corporation. On entering into a contract of employment it binds both employer and employee
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z with a set of rights and obligation towards each other that are required to be protected by law. With a manager dead, 90 employees in jail and an entire factory's workforce under investigation for murder in Maruti Suzuki Manesar factory there seems to be a need to make stringent labour laws flexible in India. These are the times of distress for corporate houses, as immediate steps towards dismissal could not have been taken due to laws protecting immediate termination. There is a need for dual policy that not only protects rights of an employee but with changing times a need has arisen to extend protection towards rights of an employer as well. A shameful incidence like this could have been avoided if there were flexible laws of immediate termination of instigators before the event took such an ugly turn of gross misconduct. Industrial law covers a comprehensive canvas of state intervention of social control through law to protect directly the claims of workers to wages, bonus, retirement benefits such as gratuity, provident fund and pension, claims, social security measures such as workmens compensation, insurance, maternity benefits, safety welfare and protection of minimum of economic well-being along with providing several mechanism for dispute resolution. Job security has been particularly protected by providing industrial adjudication of unfair discharges and dismissals and ensuring reinstatement of illegally discharged or dismissed workmen. Protection has gone still further by laying down conditions of service in specified industries and establishments and limiting the hours of work. By and large, all these subjects are "connected with employment or nonemployment or terms of employment or with the conditions of labour" of industrial employees. In other words, these matters are the subject matter of industrial disputes, which can be investigated and settled with the aid of the machinery provided under the Act or analogous State statutes. The term summary dismissal does not exist under Indian Labour Law. An employer cannot terminate the services of a permanent employee without prior notice or on providing him with a notice. An employer cannot terminate the services of an employee on the spot, he can only an employee from his services on providing him with a notice 21 days prior to his termination stating the reasons for termination. Termination cannot be arbitrary and have to be executed on the principles of natural justice. Hence the concept of Hire and fire policy or Summary Dismissal doesnt exist in Indian Laws. Indian laws make it very difficult for an employer to terminate the services of an employee giving employee elasticity to perform at his own will;
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z effecting the productivity and outcome of the industrial produce. An employee has an option to appeal against his termination to labour court. Whereas, on the other hand an employer has very few rights as against an employees misconduct and cannot dismiss him summarily if the employee acts in an unprofessional or unethical manner. The Act provides stringent laws against capitalist or the employer. There is lack of any provisions providing an ethical code of conduct on behalf of the employee. It nowhere defines the word misconduct. Unlike laws in Taiwan and Austria, untrustworthiness cannot be used as against an employee to dismiss him from his services. CONCLUSION From what has been discussed above, this paper proposes some principles and contains as guidance for law modification. It is now realized that there is a need to set-out laws relating to duties and proper conduct while working in an establishment. There is a need to fill-in the loopholes in the present labour laws and relax provisions relating to dismissal and termination. Act of theft, untrustworthiness, improper conduct, unjust cause of absence, inefficiency etc. should be considered as valid grounds for dismissal. The concept of summary dismissal shall be incorporated and the power to dismiss without notice or approval from authorities shall be vested in the employer in certain cases of gross misconduct with effective mechanism to keep a check on such a power being granted. The employer shall be given power to define the scope of the term gross misconduct as according to the existing needs of their industry. The same shall be incorporated in the Model Standard Order. There is a need to reform the labour laws relating to termination of employment and look into the aspect whether India is ready for hire and fire policy in Labour Laws on grounds of gross misconduct; in order to bring in favourable conditions for employee as well as an employer. It is the need of the hour to take measures in order to reform stringent labour laws to build a just labour relation system.
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z REFERENCES
1
Lalit Bhasin, Labour and Employment Laws of India, available at <http://unpan1.un.org/intradoc/groups/public/documents/apcity/unpan02943.html> (Accessed on 27-11-2011, 1.05 pm ). 2 S.N. Mishra, Labour and Industrial Laws, 26th Edition, (Central Law Publications 2011). 3 Kolektivne Protu Kapitalu "Workers Autonomy Strikes in India available at <http://protikapitalu.org/> (Accessed on 26-11-2012, 9.05 am). 4 Fresh Maruti strike spreads; Manesar workers went on a flash strike a vailable at <http://articles.economictimes.indiatimes.com/2011-10-08/news/30258062_1_manesar-plant-workers-contractualworkers-13-day-strike> (Accessed on: 27-11-2012, 1.30 pm). 5 No Winners in 13-Day Maruti Strike available at <http://knowledgetoday.wharton.upenn.edu/2011/06/no winners-in-13-day-maruti-strike/> (Accessed on 8-10-2012, 3.40 pm). 6 Labour Law, available at < http://www.paralegaladvice.org.za/docs/chap06/15.html> (Accessed on 26-11-2012, 12.40 am). 7 <http://www.eurofound.eu.int/emire/AUSTRIA/ANCHOR-ENTLASSUNG-AT.html> Accessed on 20.7.2012, 5.00 pm). 8 http://www.eurolawyer.at/pdf/Rechtsprechungsuebersicht_AR_Internet.pdf (Accessed on 27-10-2011, 6.30 pm). 9 Promulgated on August 1, 1984. Amended on December 27, 1996 and May 13, 1998 The LSL provide for minimum standards of employment such as work hours, holidays, accident compensation etc. Individual employment relationships between an employer and employee are regulated by the provisions of the LSL such that working conditions set forth by employment contracts, work rules, and collective agreements which are inferior to the standards required under the LSL are void and automatically replaced with the minimum requirements set forth in the LSL. 10 Article 12 LSL
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VALUE CREATION THROUGH MERGERS & ACQUISITION

MS. SOUMYA KANTI SINHA & MRS. ANUPAM SHARMA Free markets are not free-for-all markets. Value up-gradation is a priority but product distinction is favoured over improvement in marketing and distribution. In today's globalised economy, mergers and acquisitions are being increasingly used the world over as a strategy for attaining a larger size and asset base, faster growth in market share and for becoming more competitive through economies of scale. One of the important factors that could affect the outcome of a merger is the relative size of the acquiring and acquired companies. This paper studies the impact of mergers, acquisitions on the working performance of acquiring body corporate by examining some pre- and post-merger financial ratios with a sample of firms chosen from all mergers involving public limited and traded companies in India between 1991 and 2012. The results suggest that there are minor differences in terms of the impact on operating acts following mergers and acquisition when the acquiring and acquired firms are of different relative sizes, as measured by market value of equity. INTRODUCTION The corporate sector in India has seen a considerable growth of mergers and acquisitions since the 1990s & its a business strategy today for Indian corporate. The two main objectives behind any Merger & Acquisition (Hereinafter as M&A) transaction, for corporate were found to be: (i) improving revenues and profitability; and (ii) faster growth in scale and quicker time to market. The dynamics involved in the mixture process gives rise to different kinds of uncertainty and ambiguity in the process. Human resource responses arise from three factors. First, intense feeling of "we versus they" in the organization: these results in distrust, misunderstanding and poor organization. Secondly, there are tensions and hostility towards the acquiring company. Thirdly, anxieties on account of the effect it has on career plans through transfers, job loss, relocation, and loss of individual influence and culture clashes arise when dissimilar cultures
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z come into contact with each other. The moments of cultural clashes are considered by employee stress; distrust on the part of members of one firm towards the members of other firm and negative attitudes towards each other. The negative attitudes reduce the commitment of members to successful integration of the organisations and the extent to which they are willing to cooperate with the other organization. MERGERS AND ACQUISITIONS: SOME LESSONS Merger is the combination of two existing companies in which all the assets, liabilities and stock of one company are moved to the other in consideration of payment either through shares, cash or both. Acquisition or takeover means the purchase by one company of a controlling interest in the share capital of another existing company. Acquisition is affected through agreement with the persons holding majority interest in the company management. When merger/acquisition takes place, it affects the values and goals of the new organisation, due to which employees are not able to identify and involve themselves, affecting the individual and organisational commitment. As the experience of the corporate clearly indicates the root causes of failed mergers represent mainly mismatch of cultures of the two companies. Culture provides meaning, direction and coordination and it influences the top management conduct, organisational practices, strategy formulation and leadership styles. Mergers and acquisitions are seen as the process in which two different cultures come into contact with each other and subsequently, there is accommodation of the companies' cultures. Many of the recent mergers and acquisitions have failed to meet expectations in the value creation promise. At the root of these failures of most, if not all, is the fact that managements have failed to address the broader human relations issues during the critical period leading up to or following merger or an acquisition. In the light of these facts, the key issue that the corporate sector is facing today with regard to merger and acquisition is management of human resources. However, these human issues could be handled smoothly with the help of well thought out and planned strategies.
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z VALUE CREATION OF VARIOUS MERGERS BY INTERNAL CONSOLIDATION Horizontal Mergers; In case of horizontal mergers in Indian industry, while the profitability margins had declined marginally following mergers, the return on net worth and return on capital employed had significantly declined in post-merger period. Vertical Mergers; In case of vertical mergers in Indian industry, mergers had a marginal negative impact on the operating performance of the merging company, as measured by profitability margins and returns on net worth and capital employed. Conglomerate Mergers; It appears that for merging firms involved in conglomerate mergers in Indian industry, there was a marginal decline in profitability margins and an increase in leverage causing significant decline at the net profit level. The returns on net worth and capital employed were however not affected to a significant extent in the post-merger period. Horizontal vs. Vertical Mergers; In summary, except for return on capital employed, there are no significant differences in the degree of change of all other operating ratios for the two types of mergers, that horizontal mergers are more effective in improving operating performance of firms/ company than vertical mergers was rejected. Vertical vs. Conglomerate Mergers; In summary, there are no significant differences in the degree of change of operating ratios between the two types of mergers; some few ratios were relatively higher for vertical type and few others in case of conglomerate type, that vertical mergers are more effective in improving operating performance of firms than conglomerate mergers was rejected. Horizontal vs. Conglomerate Mergers; while horizontal mergers seemed to have done better in improving profitability ratios, conglomerate mergers seemed to have done better on the returns ratios. However, none of the differences between the two types of mergers was statistically significant: that horizontal mergers are more effective in improving operating performance of firms/company than conglomerate mergers was rejected. Mergers and Consolidations; the surviving corporation continues as the entity it was before the merger with the life of the other participant ceasing. Thus, if Corporation X is merged into Corporation Y, Corporation X disappears and Y, the survivor, remains in existence. In a
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z consolidation, the participating corporations combine into a new corporation rather than a surviving participant. 1 For example, if Corporation X and Y are combined in a statutory consolidation, a new corporation is created and X and Y disappear by operation of law. Otherwise, mergers and consolidations are identical and will therefore be treated together in this text unless specific reference is made to a distinguishing characteristic of either transaction. Comparison of pre- and post-merger for all the three types of mergers showed that horizontal mergers had caused the highest decline in the operating performance of the merging companies, followed by conglomerate and vertical mergers, in that order. The declines are more prominent in terms of returns on net worth and capital employed, and to a lesser extent on net profit margin (primarily because of an increase in leverage, and consequently, interest costs after merger). The declines in profitability margins at the operating and gross level were not significant. Comparison of post- vs. pre-merger operating ratios, for the different types of mergers suggested that horizontal mergers had caused the highest decline in the operating performance of the merging companies, followed by conglomerate and vertical mergers, in that order. DO ACQUISITIONS SERVE MANAGERS OR SHAREHOLDERS Ironically, the literature that focused on takeovers as devices to eliminate non-value-maximizing behavior has almost completely forgotten the bidders, despite the fact that acquisitions may be the most important decisions about the allocation of corporate wealth that managers make. Acquisitions, especially friendly ones, may provide managers their greatest opportunity for expressing their non-value-maximizing preferences. The acquisition process is probably the most important vehicle by which managers enter new lines of business. But value maximization is not the only objective of the manager. For example, if the company operates in a declining industry, the CEO might want to start moving into faster growing industries. Many corporate acquisitions seem to be governed by this desire of managers to switch into businesses with long term growth potential even when the managers have no special expertise in running such businesses and when the valuemaximizing strategy is to distribute free cash flows to shareholders. Since in choosing the acquisition targets the manager is guided by a number of objectives other than value maximization, he is likely to overpay relative to what the acquisition is worth to shareholders. For in addition to the value
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z gained for shareholders, the manager is also paying for increasing the size of the firm, the opportunity to diversify, and for making himself less replaceable. Examples of acquisitions that were probably motivated by non-value considerations include U.S. Steel's white knight acquisition of Marathon Oil, Mobil's acquisition of Montgomery Ward, Exxon's acquisition of Reliance Electric, and GM's acquisition of Hughes Aircraft. Of course, some managers may raise profitability of companies they acquire even when value-maximization is not their main motivation. Even managers interested only in entrenching themselves will enter businesses to which they have something to add, since this would increase their own value to shareholders. The implication of our story is that friendly mergers can (though they need not) create value, but that in many cases more than 100 percent of these gains will accrue to target shareholders. Shareholders of the target company gain and those of the acquiring company lose, since the latter end up paying the former for the benefits going to acquiring managers. But more than just a transfer between acquiring and target shareholders is likely to be involved here. Acquisition choices based on managerial objectives will not lead to the optimal allocation of managers to businesses. For example, managers of cash cows in declining industries will end up buying businesses that could be run more efficiently by other potential acquirers. In interpretation of the acquisition process, non-value-maximizing behavior of bidders plays a central role. The willingness of the managers of the bidder to pay for benefits to themselves that are of no value to their shareholders explains negative returns to acquiring firms. This interpretation suggests that before stressing the role of takeovers in eliminating non-valuemaximizing behavior by managers of target companies, it is important to remember the managers of bidding firms. For them, the purchase of other companies at inflated prices may be the grandest deviation from value maximization. Just as improvements in acquisition techniques of the 1980s have pressured some managers to maximize value, they have enabled others to deviate from doing so on a previously impossible scale. Typically, for each corporation that is to be merged, after the old shares that are to be converted into new shares, obligations or other securities of the survivor or any other corporation or into
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z cash or other property are converted; the former holders of those shares are entitled only to the rights provided in the articles of merger or to dissenters rights.2 WHEN AND WHY DO MERGERS & ACQUISITIONS OCCUR The happening of mergers came to the conclusion that mergers take place at times of positive conditions in the capital markets. Sometimes mergers occurred because of discrepancies in evaluations of the firm between the selling and the buying parties. These discrepancies were more likely to exist in times of rapid technological change and when there were speculative capital markets, that "forces which generate discrepancies in valuation are decisive in determining variations in merger rates both among industries and over time". The technical personnel ratio, productivity change, growth, and the concentration ratio were each correlated with the merger rate. Most analyses of merger behaviour have attempted to demonstrate that merger-active firms either were more profitable or were not more profitable than firms that did not engage in as much merger activity. If the goal of profit maximization, common in economic theory, is assumed, the issue of whether or not mergers enhance profitability becomes a central one. The pattern of mergers among industrial companies has been analyzed as a response to organizational interdependence. It has been shown that there exist statistically significant associations between patterns of resource exchange and patterns of merger activity and that these associations are able to account for about one-half of the variation in merger behaviour. Merger, when thought of as a response to organizational interdependence, is a strategy to be examined along with other strategies that can be utilized in managing the organization's environment. It is also a strategy that can be analyzed in a consistent conceptual framework across types of organizations. The task also remains to examine growth, apart from merger, as a strategy for managing the environment and to specify the environmental conditions that will tend to produce strategies of diversification or integration. Many reasons have been given for the trend towards growth by acquisition, including the increasing complexity of modern technology, the shortage of capable managerial talent, the expense and uncertainty of expanding internally into new fields, the inability of small and
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z medium-sized firms to meet competition, the tax advantages that accrue to the sellers of successful businesses, and the economies that are expected to result from the combination of complementary enterprises. Purchasers reasons for acquiring other companies; to increase its earnings per share by adding other companies earnings to its own.3 EFFECT OF EUROPEAN INTEGRATION ON THE NINETIES; MERGERS & ACQUISITIONS International economists will think of the late nineties as a period of considerable interest. Thus, according to the OECD, the world-wide number of cross- border M&As rose from 8,587 in 1990 to 24,113 in 1999. Over the same period, the number of European cross-border M&As almost tripled. Indeed, according to the OECD, the value of cross-border M&As amounted to 91 percent of the value of all FDI flows in 1999. In India, reasonably though, mergers and amalgamations are taking place at comparatively faster rate in the pharmaceuticals and fine chemicals. In the other lines, mergers have followed only when the foreign principal of the Indian counterparts have merged abroad. Thus the merger path of the Indian companies is forced by what is happening to the collaborators abroad and not necessarily because the conditions of operations are favourable to such mergers. The evidence suggests that the new economic environment of the 1990's has facilitated M&AS between companies under domestic or foreign ownership. To draw parallels at the international level, an examination of the effect of mergers on profitability in six countries showed that mergers had no effect on profitability or led to minor increases in Belgium, Germany and UK, whereas it had declined slightly or remained unchanged in France, Holland and Sweden observed that merging firms had improved their performance during the post-merger period in the Japanese manufacturing industry in the period 1959-77. It is evident that the profitability of 64 per cent of the acquired firms in crisis-hit countries rose after acquisition. Further it is observed that profitability improved in those acquired firms in Asia and Latin America where Japanese executives replaced the old management in more than one half of the cases. An appropriate competition policy needs to be designed so as to address the possible anti-trust implications of overseas mergers for India, as well as to regulate M&AS among Indian enterprises. This needs to be done keeping in view the need to develop productive capacities and
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z generate employment within the country, providing for adequate "promotional measures" and safeguards to small and medium entrepreneurs. This paper could not deal with aspects such as the impact of M&AS on capital formation, balance of payments, employment generation, managerial and marketing skills, quality of services and prices. These are also issues that need careful scrutiny especially, in the case of cross-border M&AS. VALUATION FACTORS; ACQUISITION It is widely accepted principle that all factors relevant to a determination of fair value of a dissenters shares are to be taken into account by the court.4Although the methods by which the courts apply these factors to the valuation process vary & generally are not set out by statute, and the weight accorded the factors in determining the total value of the shares will necessarily change with the jurisdiction & factual situation, some consistent conclusions may be reached.5 First, it is generally held that the value given by the court should not include any appreciation or depreciation that comes about as a result of the proposed corporate action. 6 This Principle is statutorily mandated in many jurisdictions through the requisite use of the day prior to shareholder authorization as the basis upon which share value must be computed. The valuation process may begin and end with the price of the stock if a regular market exists, leaving aside any price change due to the action in question;7 or, as has been noted, the market price may simply be deemed of special importance. Circumstances surrounding the trading of the stock will generally have an effect on the importance placed on the market value element. Factors considered include: whether the shares are listed on a national stock exchange; 8 frequency of trading in the stock; market price in relation to asset value; and the presence and effect of any unusual purchases prior to the corporate action. Note that in certain situations market value has been deemed totally irrelevant with regard to valuating the shares. The undertaking with which a corporation is involved generally will affect the weight accorded investment value in computing the total valuation. For example, a commercial business the aim of which is to create and maximize earnings, as opposed to a company dedicated to the holding
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z of assets for appreciation will have the investment value accorded it by the court given great weight; and such value will therefore make up a great proportion of the total valuation. Another factor which can affect the investment or earning valuation of stock is a corporations accounting practices. These practices may include: the choice of inventory valuation; the method used to calculate depreciation; treatment of accrued expenses and income; allocation of corporate overhead; valuation of intercompany transfers; and valuation of assets acquired by merger. The crucial factor which the financial expert must consider in choosing a valuation method is whether the method chosen is one that is generally considered acceptable in valuing a stockholders proportional interest in a comparable business. One common modern method of valuation is the discounted cash flow or DCF analysis. Used generally by financial analysts to value stocks, the DCF approach considers all assets, including securities, bonds, real estate and machinery, valuable in their potential to provide future benefits to the corporation. COMPARTIVE STUDY; US, UK, JAPAN & INDIA
UNITED STATES
In the US, the CEO usually runs the company. Negotiations are much more likely to succeed if they begin with the CEO. But be careful about trying to eliminate investment bankers from negotiations; they may become highly motivated to cause an increase in price or to find an alternative deal. The US acquisition market is very competitive and sellers and their advisers judge quickly who is a serious acquirer and who is not. An acquirer able to make up its mind and carry out the transaction with speed is more likely to obtain exclusive negotiating rights and safeguard the acquisition against competition. If the main assets in the target business are people, an acquirer should have a reasonable theory as to why the key people will remain with the new owners and how to remain them. For a foreign acquirer, this consideration may be an ongoing one. In acquisitions of private companies, there is no legal or practical way to protect the acquisition completely from competing bidders until a binding no shop or binding acquisition agreement will not bar competition. An acquirers main ally against competition is speed. Acquisitions of public companies in the US are very public and very expensive. In making a minority
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z investment, the acquirer is unlikely to obtain meaningful control of the investment. Negotiating an exit, therefore, becomes very important.
UNITED KINGDOM
A public company may be a listed company and have its shares traded on the London Stock Exchange. The Financial Services Authority (FSA), as the UKs Listing Authority (UKLA) publishes the Listing Rules which govern, inter alia, admission to listing and the continuing obligations of listed companies and which must be observed in any private company acquisition where either the acquiring or the target company is a listed company or a member of a group where one company in the group is a listed company. In addition, where the target company is a public company (listed or unlisted) and in the case of certain types of private company considered to be resident in the UK, the Channel Islands or the Isle of Man, there must also be compliance with the City Code on Takeovers and Mergers (City Code). The City Code will not apply on an asset purchase.
JAPAN
The majority of large-scale businesses in Japan are as in other jurisdictions, undertaken through companies. There are four types of company in Japan: the Kabushiki Kaisha (company limited by shares, KK), the Yugen Kaisha (company limited by units, YK), the Goshi Kaisha (limited partnership company) and the Gomei Kaisha (partnership company). The KK is the most common type of company for business purposes and most closely resembles a company whose liability is limited by shares in jurisdictions such as the United Kingdom. It is the business form in Japan which carries the greatest aura of stability and respectability. The KK must be registered with local Legal Affairs Bureau in the district in which its head office is located. There is no requirement to file the KKs Articles of Incorporation (teikan), although information must be filed on the KKs objects, trade name, directors, representative directors, representative directors, statutory auditors, types and number of issued share and authorized share capital. Secondly, a report (or notification) must be filed on the acquisition of shares in the KK with the Ministry of Finance via the Bank of Japan under the Foreign Exchange and Foreign Trade Law of Japan.
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z
INDIA
With the liberalization of the Indian economy and the removal of restrictive arrangements such as monopolies and restrictive trade practices, corporate India is advancing more towards a merger culture. In India, the real reasons for a merger are not purely economic. Legislation having a bearing on acquisitions and mergers includes the Companies Act 1956, the Sick Industrial Companies (Special Provisions) Act 1985 and the Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeovers) Regulations 2011. Sections 391-396 of the Companies Act 1956, deal with the merger and acquisition of companies. Section 394 of the Companies Act 1956 is the main section dealing with the reconstruction and amalgamation of companies. This section requires companies to make application to the court under section 391, which empowers the court to sanction the compromise or arrangement proposed by the companies. Section 392 further empowers the High Court to enforce a compromise or arrangement ordered by the court under section 391 of the Companies Act. Section 393 provides supporting provisions for compliance with the provisions or directions given by the court. Sections 395, 396 and 396A are supplementary provisions relating to amalgamation. Section 395 deals with the power to amalgamate without going through the procedure of the court. CONCLUSION The design of mergers & acquisitions among industrial companies has been studied as a response to organizational interdependence. Many of the recent mergers and acquisitions have failed to meet expectations in the value creation promise. At the root of these failures of most, if not all, is the fact that managements have failed to address the broader human relations issues during the critical period leading up to or following merger or an acquisition. However, an exchange of shares takes place between the entities involved in such a process. No fresh investment is made through this process. The immediate effect of a merger is to increase the degree of concentration as it reduces the number of firms/company. Another effect of mergers on competition is on the generation of barriers to entry. An acquiring firm might decide to go in for an international merger in order to take advantage of cheap raw materials and labour, to capture profits from exchange rates, or to invest its surplus cash. The international mergers should be encouraged
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z when demand uncertainty is large and market competition is intense as they are privately unprofitable but socially desirable. In the light of these facts the key issue the corporate sector is facing today with regard to merger and acquisition is management of human resources. However, these human issues could be handled smoothly with the help of well thought out and planned strategies. REFERENCES
1 2
Id. See Del. Code Ann., tit. 8, $ 251 (a); N.Y. Bus. Corp. Law $ 901 (a) (2) (McKinney). See Model Bus. Corp. Act $ 11.07 (a) (8) (b). 3 The Purchaser must carefully identify its reason for wanting to acquire a particular company. This reason may control whether or not the deal will be made. For example, if the prospective seller demands a premium price for the company, and the reason for the acquisition is to save time in developing new products or additional technical capability, it may be worthwhile for the buyer to pay the sellers price. If, however, the acquisition is made for a less compelling purpose, the asking price may be too high. 4 See Walter S. Cheesman Realty Co. V. Moore, 770 P.2d 1308 (Colo. Ct. App. 1988); See generally Ferdinand S. Tinio, Annotation, Valuation of Stock of Dissenting Shareholders in Case of Consolidation or Merger of Corporation, Sale of its Assets, or the Like, 48 A.L.R.3d 430 (1973). 5 Methods as used here refers to the combination of the particular factors a court will consider determining a fair value & the way in which the factors are weighed against each other. 6 See Murdock, The Evolution of Effective Remedies for Minority Shareholders & Its Impact upon Valuation of Minority Shares, 65 Notre Dame L. Rev. 425 (1990); kanda & Lev more, The Appraisal Remedy & the Goals of Corporate Law, 32 UCLA L. Rev. 429 (1985); Note Corporate Law- Chipping Away at the Delaware Block: A Critique of the Delaware Block Approach to the Valuation of Dissenters Shares in Appraisal Proceedings, 8 West. New Eng. L. Rev. 191 (1986); But see Cede & Co. V. Technicolor, Inc., 684 A.2d 289 (Del. 1996) (holding minority shareholder is entitled to value added during the interim period in a two-step takeover); Wine-burgh, Comment, Appraising Dissenters Shares: The Fair Value of Technicolor, 22 Del. J. Corp. L. 293 (1997). 7 See, e.g., Armstrong v. Marathon Oil Co., 32 Ohio St. 3d 397, 513 N.E. 2d 776(1987) (fair cash value of stock was deemed to be the actual market was reasonably suitable & active). 8 Some courts have considered market value to be the most accurate method of valuing stock which is traded regularly on a national securities exchange. See, e.g., In re Olivetti Underwood Corp., 246 A.2d 800 9Del. Ch. 1968).
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AN ANALYSIS ON THE STATUS OF ARMED FORCES SPECIAL POWERS ACT IN NORTH-EAST INDIA
ANGSHUMAN HAZARIKA INTRODUCTION The Armed Forces Special Powers Act, 1958 (28 of 1958) was basically brought forward as an immediate measure to control the insurgency problem in North-East India and came into force on 11 September, 1958.1 The act was modeled on the Armed Forces (Special Powers) Ordinance promulgated by the British Government in 1942 to control the Quit India Movement. The present Act empowered the Governor of any State or Union Territory to declare areas as disturbed areas and use the armed forces to maintain law and order situation. Originally, the term disturbed areas referred to Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura. However, in July, 1990 the Act was extended to Jammu and Kashmir as the Armed Forces (Jammu and Kashmir) Special Powers Act, 19902 to counter the situation in the State. This paper focuses on the issues related to the powers provided under the Act, misuse of the powers, alleged human right violations and protests in North-east India. BACKGROUND The North-eastern region of India has one of the longest histories of armed secessionist movements in the world. The original basis of the armed secessionist movements lay on the fact that these states had enjoyed an independent existence since long under the local kings and rulers prior to their integration with India in the period after independence. However, as of late the basis for the secessionist movements have gradually shifted to a situation where each tribal group demand a separate state or area to maintain its own distinct cultural or social identity. The oldest of the secessionist movement is the Naga Movement which basically traces its history to the establishment of Naga Club in Kohima in 1918. 3 After independence the movements however took a violent turn with the establishment of Naga Nationalist Council (NNC). The conflict continues till date and presently the Government is in peace talks with one of the main insurgent groups of the State- The Nationalist Socialist Council of Nagaland (Issac-Muivah) Faction.4
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z Inspired by these situations and also due to the low levels of development prevailing in the region, a number of other groups mushroomed in the different states of North-East India each with an unique demand but with the basic aim to secure a territory so as to protect the interest of the particular tribe or ethnic group. The major among these insurgent organisations are United Liberation Front of Assam (ULFA) in Assam, People's Revolutionary Party of Kangleipak (PREPAK) of Manipur, Nationalist Socialist Council of Nagaland (Issac Muivah and Khaplang Factions) in Nagaland and All Tripura Tiger Force (ATTF) in Tripura among others. The Armed Forces Special Powers Act was basically introduced at first to bring the situation in Nagaland under control with a general feeling among the people that the Act would be repealed after one year when the insurgent activities have been brought under control. However, such a thing did not occur and the Act is still under force in many regions of North-east India. REASONS FOR OPPOSITION Although the Government and many military experts are of the opinion that the Armed Forces Special Powers Act is necessary to maintain law and order in the region, but the main causes of the discontent should be looked into. A brief introduction to the main causes of discontent as of now is as followsa) Human Rights Violations The use of the powers provided under the Armed Forces Special Powers Act for human rights violations is a prime reason for the opposition to the Act. A detailed analysis into the legal perspectives as well as the present situation would be undertaken in the later part of the paper. b) Existence of the Act in peaceful areas The Act as of now is in force in many relatively peaceful areas of the region. Although, there are sporadic incidents of violence in these regions but those can be very well counteracted with the existing provisions of the Indian Laws. The widespread use of the Act and putting the whole State under its blanket only increases the probability of misuse
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z of the Act while mainly defeating the purpose of the Act to use it in disturbed areas only. c) Determination with Central Government The amendments to the act bought in 1972 also allowed the Central Government to declare any area as a disturbed area.5 This took away the powers from the Governor and the State Government who had better knowledge of the prevailing situation or circumstances. d) Hindrance to Peace Talks With the Central Government in the process of peace talks with many of the insurgent organisations of the region, the need for the Act further diminishes. Contrary, to the main purpose of the Act to protect the law and order, it might act as an inflammatory fuel, as continuing operations under the Act may force the insurgent organisations to take an aggressive stand or move away from the negotiations. Such a step would be a huge loss in the aim of long term peace and harmony in the region. LEGAL PROVISIONS UNDER THE ACT The provisions of the Armed Forces Special Powers Act have invited wide spread oppositions and also leave opportunities for misuse. The main disputed sections of the Act are as followsa) Section 2 (b) and Section 3 define the term disturbed area but falls short of providing an objective definition.6 The Act leaves the whole process of determination of the area as a disturbed area on the Governor, Administrator or the Central Government without laying down any particular criterion to such a declaration. In the case of Indrajit Barua v. State of Assam7, the Honourable Delhi High Court declared that the lack of precision in the definition of a disturbed area was not an issue because the Government and people of India understand its meaning. However, since the declaration depends on the satisfaction of the Government official, the declaration that an area is disturbed is not subject to judicial review. So in the actual scenario, it is only the Government's understanding
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z which classifies an area as disturbed, leaving no mechanism for the people to challenge this opinion. b) Section 4 determines the powers available to the armed forces.8 Under this provision any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces may, in a disturbed area, upon his own determination fire against a person even causing his death, destroy any structure, arrest any person without any arrest warrant and search any property without any arrest warrant. The section came under review in the case of Luithukia v. Rishang Keishing 9 wherein guidelines were laid down that operations conducted by the armed forces should be in cooperation with the district administration. c) Section 5 states that any arrested person must be handed over to the police with the least possible delay.10But there is no mention as to what is the reasonable time period leaving ample scope for misuse. This provision also came into further review in the case of Horendi Gogoi v. Union of India 11. d) Section 6 states that there would be no legal proceeding against any person working under the act without permission of the Central Government. Such a provision virtually closes the window for redressal in case of violation of any rights. The existence of these provisions under the Act has caused immense heartburn among the local people who consider them an extension of the colonial legacy. They have also promoted the local citizens to move the Supreme Court of India, calling for annulment of the Act as discussed below. SUPREME COURT OF INDIA ON THE AFSPA The constitutional validity of the AFSPA was challenged in the Supreme Court of India through the case of Naga People's Movement of Human Rights v. Union of India (UOI) 12 . A Constitutional Bench of the Honble Supreme Court of India decided that the AFSPA d oes not fall under the category of a colourable legislation. However, the Supreme Court of India in the same case laid down guidelines for the armed forces who are acting in areas under the AFSPA. These provisions were made to ensure that the Act could not be misused. The Supreme Court
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z further decided that the Act of 1955 in pith and substance is a law in respect of maintenance of public order enacted in exercise of legislative power and not open to challenge. The court also further decided that there should be periodic review of the declaration of an area as disturbed area before the expiry of six months. AFSPA AND THE INTERNATIONAL LAW: Many experts contend the AFSPA violates provisions of several important documents of International Law including the Universal Declaration of Human Rights, The International Covenant on Civil and Political Rights (hereinafter referred as ICCPR) The Convention against Torture and important principles of customary law laid down by The UN Code of Conduct for Law Enforcement Officials, the UN Body of Principles for Protection of All Persons under any form of Detention and the UN Principles on Effective Prevention and Investigation of Extra-legal and summary executions. India signed the ICCPR in 1978, taking on the responsibility of securing the rights guaranteed by the Covenant to all its citizens. The rights enunciated by the ICCPR are those which must be guaranteed during times of peace by the member states. In times of public emergency, the ICCPR foresees that some rights may have to be suspended. 13 However, the ICCPR remains operative even under such circumstances since certain rights are non- derogable. The AFSPA violates both derogable and non-derogable rights.14 Article 4 of the Covenant governs the suspension of some of the rights in it. Derogation of the ICCPR has three conditions; firstly, it is only in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed that states may derogate from their obligations under the ICCPR. Also, such derogation must be strictly required by the exigencies of the situation and cannot be inconsistent with other international law obligations nor involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.15 The AFSPA has been enacted with provisions which do not require the declaration of any emergency but with mere declaration of an area as a disturbed area. 16 Further, through the promulgation of the AFSPA, a situation of artificial emergency has been created throughout the region which has been running since its implementation in 1958.
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z The powers of search and arrest granted under the AFSPA are also widely condemned as they give armed forces virtually unlimited powers of detention and are again a violation of Article 9 of the ICCPR.17 This is evident from the fact that the Act does not provide for any fixed time period for trial of the people under detention of the army. The Covenant provides under Article 9 (3) that there has to be a reasonable time for production before a judicial authority and for release. However, the Act makes no such provision for protection of these rights. Further, the AFSPA violates provisions of Article 6 guaranteeing the right to life, Article 7 prohibiting torture and Article 10 which calls for a dignified treatment for everyone. 18 These provisions of the ICCPR are not derogable under any circumstances. However, the AFSPA through its provisions of arrest and unspecified time period of handing over to police violates these provisions. The right to life is also seen to be violated keeping in view the fact that the Act grants permission to the soldier to undertake acts of violence even when he is not under a direct threat to life. Questions have also been raised on the validity of the AFSPA keeping in view of the violation of Article 2 of the Covenant.19 The Covenant provides that each State should guarantee a judicial process for the enforcement of the rights of the people. However, the provisions of AFSPA granting detention in arbitrary situations are in clear violations of the Covenant. Also, the ICCPR clearly provides that if any State is acting in violation of the provisions of the ICCPR, it has to inform the other countries of such a situation. However, India has not taken any such steps. MISUSE AND ATTACK ON HUMAN RIGHTS VIOLATIONS There have been numerous reports of Human Rights violations as a result of the misuse of the AFSPA which provides virtually unlimited authority. There have been numerous cases of disappearance, rape and torture which are alleged to have gone untried due to the wide immunity provided under the Act. However, the most important case which managed to evoke attention from people all over the country was the case of custodial rape and death of Thangjam Manorama, a 32 year old lady from Manipur.20 The alleged atrocities committed on her by the soldiers of the Assam Rifles led to people of Manipur and also other States of North East India, to come together on the streets to
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z protest against the Act and fight for justice. Irom Sharmila, also called the Iron Lady of Manipur, has been conducting a fast since the last 12 years demanding a repeal of the Armed Forces Special Powers Act.21 She began her fast on 2 November, 2000 and has been confined under strict controls by the Government with repeated periods of arrest and release followed by arrest whenever her health condition deteriorates. The protests for the withdrawal of the Act led to partial success last year when it was removed from certain areas of Jammu and Kashmir. However, inspite of repeated commitments from the Government, no such results have been seen in North East India. REACTIONS FROM INTERNATIONAL ORGANISATIONS Numerous International organisations have revealed their strong discontent at the existence of a draconian regulation like the Armed Forces Special Powers Act. In 1991, the United Nations Human Rights Committee (UNHRC) questioned India on the validity of the AFSPA. 22 The second UN protest against AFSPA came in 2009 when UN High Commissioner for Human Rights, Mr. Navanethem Pillay, in 2009 asked India to repeal AFSPA, citing that the Act breached "contemporary international human rights standards".
23
Further, UN Special
Rapporteur on extrajudicial, summary or arbitrary executions, Committee on the Elimination of Discrimination against Women and Committee on the Elimination of Racial Discrimination have also called for the repeal of the Act. The Amnesty International has strongly opposed the existence of such an Act and has recommended the following provisions24: Repeal the AFSPAunconditionally; Ensure that it does not introduce provisions taken from the AFSPA into the recently Amended Unlawful Activities (Prevention) Act, (UAPA) 1967; Repeal or amend the UAPA to bring it into line with International Human Rights law; Protect the civilian population from violent crimes, including acts committed by armed groups, and prosecute those responsible for such attacks within the framework of criminal law and in conformity with International Human Rights law and standards;
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z Ensure that law enforcement personnel, including armed forces deployed for law enforcement purposes, respect the standards set out in the UN Code of Conduct for Law Enforcement Officials, and the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials; Amend Section 19 of the Protection of Human Rights Act which prohibits the NHRC and State Human Rights Commissions from independently investigating allegations of Human rights violations by members of the armed or paramilitary forces. The Human Rights Watch, another International organisation working for the maintenance of Human Rights had released a document entitled Getting Away With Murder :50 Years of the Armed Forces (Special Powers) Act in August, 2008 25 providing an account of the various incidents of Human Rights Violations and has requested the Indian Government to repeal the Act. GOVERNMENT POSITION AND INITIATIVES The Government and the Army have repeatedly released statements supporting the existence of the AFSPAas they believe that the Army would not be able to conduct its operations without the same effectiveness in the absence of the Act. The Government acting due to pressure from protests in Manipur established a Committee to Review the Armed Forces (Special Powers) Act, 1958 setup in 2004 led by Justice Jeevan Reddy, a former Judge of the Supreme Court. The committee recommended the repeal of the Act.26 Further, the Second Administrative Reforms Commission, headed by the current Union Law Minister, Mr. Veerappa Moily, and the Working Group on Confidence-Building Measures in Jammu and Kashmir led by the present Vice President of India, Honourable Hamid Ansari, have all recommended the repealing of AFSPA. Although no positive steps have been seen till date but the recent statement by the Home Minister stating that the Government was looking forward to amending or replacing the Act 27 are encouraging signs.
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z RECENT DEVELOPMENTS ON THE AFSPA The anger among many people in North east India has risen in recent times primarily because of the fact that the Act was removed from certain areas of Jammu and Kashmir keeping in view the demands of the local people and no such demands have been accepted in relation to North-east India. There have been renewed protests in many areas in the Northeast this year, particularly in the State of Manipur. The activist Irom Sharmila in her recent statements has reiterated her support to the movement and support has started flowing in from across the globe.28 The Supreme Court of India in recent days has taken a sympathetic view of the opinion of the people of the region and acting on a PIL, it sent notices to the Government of India and Government of Manipur on the issue in October, 2012.29 In the latest hearing of the case on 10 April, 2013 the court sent a strong hint asking the Government to look at modifications to the provisions and has strictly opposed the blanket provisions given under the Act. 30 Further, in another recent case, the Supreme Court opined that protection under the AFSPA cannot be claimed for offences such as Rape and Murder by the Indian army. CONCLUSION The AFSPA provides wide ranging powers to the armed forces without any sufficient provision for seeking justice in a case of violation. The immediate need of the hour is a review of the ground situation to study the need of such an Act. Conditions in North East India have invariably improved over the last few years and a ground level review followed by deliberations with the local people should be initiated. Keeping in view the needs of national security, if it is still felt that the Armed forces deserve special immunity, then the Government should make adequate provisions to implement a more people friendly Act or make amendments in the present Act to make it compliant to the recommendations by the various commissions. But in taking all these steps, the respect for the opinion of the people should be a top priority to prevent recurrent protests and allegations of abuse of power by the armed forces. The armed forces are for the protection of the people and friendly relations and support of the public can be the greatest aid in the fight against anti-social elements.
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z REFERENCES
1 2
http://mha.nic.in/pdfs/armed_forces_special_powers_act1958.pdf (Accessed on 19 April, 2013 at 8:30 am) http://www.indiandefencereview.com/news/the-armed-forces-special-powers-act-a-perspective/ (Accessed on 17 April, 2013 at 3:15 pm). 3 Col. Ved Prakash, Encyclopedia of North East India, Vol. 1(Atlantic Publishers and Distributors (P) Ltd. New Delhi 2007) p. 1927 4 Nivedita Menon and Aditya Nigam, Power and Constestation- India Since 1989, (Zed Books Ltd. London 2007) p. 141 5 Anil Kamboj, Manipur and Armed Forces (Special Power) Act, 1958, Strategic Analysis , Vol. 28, Issue 4, October, 2004, Unknown. 6 Section 2 and 3 of the Armed Forces (Special Powers) Act, 1958. 7 Indrajit Barua v. State of Assam, 1983 AIR(Del) 513 8 Section 4 of the Armed Forces (Special Powers) Act, 1958. 9 Luithukia v. Rishang Keishing, (1988) 2 Gau LR 159 10 Section 5 of the Armed Forces (Special Powers) Act, 1958. 11 Horendi Gogoi v. Union of India, (1991) Gau CR 3081 12 Naga People's Movement of Human Rights v. Union of India (UOI), AIR 1998 SC 465 13 http://ssrn.com/abstract=2045357 (Accessed on 20 April, 2013 at 10:40 pm) 14 http://ssrn.com/abstract=2045357 (Accessed on 20 April, 2013 at 10:40 pm) 15 http://www.defendinternational.com/index.php?option=com_content&task=view&id=30&Itemid=127, (Accessed on 16 April, 2013 at 11:15 pm)
16 17
http://openspace.org.in/book/export/html/761, (Accessed on 12 March, 2013 at 2:15 pm) India Briefing: The Armed Forces Special Powers Act (AFSPA) Review Committee takes one step forward and two backwards, (Amnesty International, November, 2006, AI Index: ASA 20/031/2006) p. 17 18 http://sanhati.com/excerpted/4420/.(Accessed on 17 April, 2013 at 5:20 pm) 19 http://www.e-pao.net/epSubPageExtractor.asp?src=education.AFSPA-A_Law_Review.AFSPAA_Law_Review_5. (Accessed on 18 March, 2013 at 9:30 pm) 20 Thokchom Binarani Devi, Womens Movement in Manipur , (Concept Publishing Company New Delhi 2011) p. 31 21 http://indiatoday.intoday.in/story/irom-sharmila-the-iron-lady-of-manipur-continues-her-epicbattle/1/227788.html, (Accessed on 20 April, 2013 at 11:25 am) 22 http://www.mightylaws.in/689/afspa-mockery-human-rights (Accessed on 14 April, 2013 at 3:20 pm) 23 http://articles.timesofindia.indiatimes.com/2009-03-23/india/28054238_1_afspa-repeal-kashmir (Accessed on 17 April, 2013 at 4:10 pm) 24 India Briefing: The Armed Forces Special Powers Act (AFSPA) Review Committee takes one step forward and two backwards, (Amnesty International, November, 2006, AI Index: ASA 20/031/2006) p. 8
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Human Rights Watch, India: Getting Away With Murder, 50 Years of the Armed Forces Special Powers Act, August 2008, http://www.refworld.org/docid/48a93a402.html (Accessed on 20 April 2013 at 1:45 pm) 26 Govt. of India, Ministry of Home Affairs, Report Of The Committee To Review The Armed Forces (Special Powers) Act, 1958,(MHA New Delhi 2005) p. 67-81 27 http://www.ndtv.com/article/india/govt-considering-replacing-armed-forces-special-powers-act-19049 (Accessed on 04 March, 2011 at 5:45 pm). 28 http://www.thehindu.com/news/national/i-love-life-if-afspa-is-repealed-ill-take-food-again-iromsharmila/article4474897.ece (Accessed on 11 April, 2013 at 7:10 pm) 29 http://articles.timesofindia.indiatimes.com/2012-10-20/india/34605747_1_afspa-ibobi-singh-government-manipur (Accessed on 17 April, 2013 at 8:10 pm) 30 http://economictimes.indiatimes.com/opinion/editorial/end-afspa-supreme-courts-sharp-hint/articleshow/ 19486514.cms (Accessed on 12 April 2013 at 2:15 pm)
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PUBLISHED QUARTERLY VOLUME: ONE ISSUE: ONE YEAR: 2013

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Mode of Citation: RLR (1) 2013

Prof. (Dr.) G. P. Tripathi

MESSAGE FROM THE EDITORIAL BOARD

The Editorial Board

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MR. CHHAYANK NAGPAL

MR. RATEMO TOM JUNIOR

MR. SHARATHRAJ P.A.

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Rostrum's Law Review, Vol I, Issue I

Rostrum's Law Review, Vol I, Issue I