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TABLE OF CONTENTS
FOREWORD BY PROF. (DR.) A LAKSHMINATH
II
A. SPECIAL ARTICLE:
MENTAL CRUELTY A MECHANISM FOR DIVORCE: AN ANALYSIS OF JUDICIAL
INTERPRETATION
ANAND PAWAR
01
11
B. ARTICLES:
THE ENVIRONMENT IMPACT ASSESSMENT MECHANISM OF INDIA
BHAGIRATH ASHIYA
31
AND
VIVEK SAURAV
52
66
83
95
108
122
139
CANCELLING
2G
LICENSES
CONSTITUTE
EXPROPRIATION
158
173
185
B. CASE COMMENTS:
T.N. GODAVARMAN THIRUMULPAD VERSUS UNION OF INDIA
M SAKTHIVEL
200
F. I NTRODUCTION TO CONTRIBUTORS
FOREWORD
Page | I
Page | II
Shakespeare, Hamlet
PROLOGUE
It is indeed a misfortune that the law which was enacted to protect the interest of a
particular group of people is now being used by the same group of people in a
fallacious manner. Earlier it was believed that only women can be subjected to
cruelty by their husband and relatives but now the whole conception and
presumption has undergone a drastic change. Women often use the backing of law
as a tool to satisfy their personal hatred towards their husband and his family
members. Huge backlog of cases in courts and frequent petition under section
498A of IPC shows us the reality of the situation. As cruelty is a ground for divorce
under different laws, in order to get rid of the marriage wife uses this section as a
powerful weapon against their husband.
The concept of cruelty has varied from time to time, place to place and from
individual to individual. The cruelty alleged may largely depend upon the type of
life the parties are accustomed to or their economic and social conditions, their
cultural and human values to which attaches importance. i
The law on cruelty has been lucidly explained in the Halsburys Laws of England,
as;
Page | 1
The general rule in all cases of cruelty is that the entire matrimonial relationship
must be considered, and that rule is of special value when the cruelty consists not
of violent acts but of injurious reproaches, complaints, accusations or taunts. In
cases where no violence is averred, it is undesirable to consider judicial
pronouncements with a view to creating certain categories of acts or conduct as
having or lacking the nature or quality which renders them capable or incapable in
all circumstances of amounting to cruelty; for it is the effect of the conduct rather
than its nature which is of paramount importance in assessing a complaint of
cruelty. Whether one spouse has been guilty of cruelty to the other is essentially a
question of fact and previously decided cases have little, if any, value. The court
should bear in mind the physical and mental condition of the parties as well as
their social status, and should consider the impact of the personality and conduct of
one spouse on the mind of the other, weighing all incidents and quarrels between
the spouses from that point of view; further, the conduct alleged must be examined
in the light of the complainants capacity for endurance and the extent to which
that capacity is known to the other spouse. Malevolent intention is not essential to
cruelty but it is an important element where it exits. ii
It has so often been said that it is obvious- yet worth repeating- that all cases that
come before this court must be determined on their own particular facts, and I
should imagine that in no class of cases is that trite observation truer than in
matrimonial cases. The circumstances vary infinitely from case to case. The fact is,
I think, another reason for a sense of danger in trying to formulate principles of
Page | 2
law out of particular circumstances in particular cases, and then treating those
principles of law as being, so to speak, explanations or riders to the actual statutory
language.
In the case of Jamieson v. Jamiesonv Lord Normand observed that;
Considering judicial interpretations the term cruelty which is a ground viii for
dissolution of marriage may be defied as willful and unjustifiable conduct of such
character as to cause danger to life, limb or health, bodily or mental, or as to give
rise a reasonable apprehension of such a danger.ix
Cruelty may be physical or corporeal or may by mental. In physical cruelty, there
can be tangible and direct evidence, but in the case of mental cruelty, there can be
or can not be tangible and direct evidence. Cases where there is no direct evidence,
Courts are required to probe in to the mental process and mental effect of incidents
that are brought out in evidence. It is in this view that one has to consider the
evidence in matrimonial disputes x.
Cruelty is considered as a ground for divorce in various laws xi. Often wife and their
relatives take advantage of this ground in order to use it as a powerful weapon to
threaten husband and their relatives.
Further, in the case of Savitri Pandey v. Prem Chandra Pandey xix the honble
Supreme Court defined cruelty as treatment by one spouse towards other which
manifests feelings towards her or him as to have inflicted bodily injury, or to have
caused reasonable apprehension of bodily injury, suffering or to have injured
health. Moreover, cruelty may be physical or mental. Mental cruelty is the conduct
of other spouse which causes mental suffering or fear to the matrimonial life of the
other.xx
Page | 6
Thus, based on the aforementioned concept of mental cruelty the Supreme Court
in the case of Saroj Rani v. Madhukkar Reddixxviii has laid down a test to establish
mental cruelty. Accordingly, the enquiry must begin with the nature of cruel
treatment and then as to the impact of such treatment on the mind of the spouse.
Ultimately, it has to be determined by the Court that the conduct causes reasonable
apprehension in the mind of the other person.
The honble court in the landmark case of Samar Ghosh v. Jaya Ghosh xxix has
observed that the mental cruelty cannot be established through direct evidence and
hence, it shall be proved through facts and circumstances of the case. Similarly, in
the case of Praveen Mehta v. Inderjeet Mehtaxxx the court held that a feeling of
anguish, depression and frustration in one spouse caused due to the conduct of the
other spouse shall be appreciated only on assessing the facts and circumstances of
the case. In the case Gurnaib Singh v. State of Punjabxxxi the Apex Court has held
that an act of a spouse which leads to mental depression to the other spouse
constitutes cruelty.
CONCLUSION
In the cases of cruelty the Court has to approach the problem not by having regard
to some isolated incidents alone but to the whole of marital relations of the parties.
Further, the Court in such cases is not concerned with a reasonable man or a
reasonable woman and it has to deal with certain precautions without any
apprehension.
The Term cruelty consists of unwarranted and unjustifiable conduct on the part of
defendant causing other spouse to endure suffering and distress thereby destroying
peace of mind and making living with such spouse unbearable, completely
Page | 8
REFERENCES
i
Page | 9
Chetan Dass v. Kamla Devi [2001] 3 S.C.R. 20; Donaldson v. Donaldson (1917) 31 Idaho 180; Luther
v. Luther (1978) 5 R.F.L. 285.
xv
A.I.R., 1975 SC 1534
xvi
Justice A.K. Srivastava, Cruelty as a Ground for Divorce or Judicial Separation under the Hindu
Marriage Act, 1955, 2 J.T.R.I. Jorunal 1 5 (1995).
xvii
Evans v. Evans (1790) 1 Hagg. Con. 35; Simpson v. Simpson (1951) 1 All E.R. 955; Russel v. Russel
(1897) A.C. 395; Sheldon v. Sheldon (1966) 2 All E.R. 257; Brayan A. Garner, Blacks Law Dictionary
(8th Ed. 2004).
xviii
Shobha Rani v. Madhukar Reddi A.I.R. 1988 S.C. 121; Jamieson v. Jamieson (1952) 1 All E.R. 875.
xix
Savitri Pandey v. Prem Chandra Pandey A.I.R. 2002 S.C. 591; Broja Kishore Ghosh v. Smt. Krishna
Ghosh A.I.R. 1989 Cal. 327; Dunkley v. Dunkley (1938) S.A.S.R 325.
xx
Hoovamma v. Vishwanath ILR 2009 Kar 4193; Jem v. Jem (1937) 34 Haw. 312.
xxi
A. Jayachandra v. Aneel Kaur, A.I.R. 2005 S.C. 534.
xxii
V. Bhagat v. Mrs. D. Bhagat A.I.R. 1994 S.C. 710.
xxiii
Chetan Dass v. Kamla Devi [2001] 3 S.C.R. 20; Donaldson v. Donaldson (1917) 31 Idaho 180; Luther
v. Luther (1978) 5 R.F.L. 285.
xxiv
Buchler v. Buchler (1947) 1 All ER 319; Mamta Namdeo v. Ghanshyam Bihari Namdeo A.I.R. 2013
C.G. 88; Padmaja Chakravarty, Mental Cruelty as a Ground of Divorce, 14 Central India Law Quaterly
95 97.
xxv
Manisha Tyagi v. Deepak Kumar A.I.R. 2010 S.C. 1042.
xxvi
N.G. Dastane v. S. Dastane [1975] 1 S.C.R. 675.
xxvii
Siraj Mohmed Khan Janmohmed Khan v. Haizunisa Yasin Khan and Anr. [1982] 1 S.C.R. 695;
Rajani v. Subromonian A.I.R. 1990 Ker. 1; Gannath Pattnaik v. State of Orissa [2002] 1 S.C.R. 845.
xxviii
Saroj Rani v. Madhukkar Reddi [1988] 1 S.C.R. 1010.
xxix
Samar Ghosh v. Jaya Ghosh (2007) 4 S.C.C. 511; Vinita Saxena v. Pankaj Pandit, A.I.R. 2006 S.C.
1662.
xxx
Durga Prasanna Tripathy v. Arundhati Tripathy, A.I.R. 2005 S.C. 3297; Praveen Mehta v. Inderjeet
Mehta A.I.R. 2002 S.C. 2582.
xxxi
Gurnaib Singh v. State of Punjab (2013) 7 S.C.C. 108; D.D. Basu, Hindu Law 172 (1st Ed. 2005).
xxxii
(i) Misuse of Dowry Laws, Domestic Violence Act and Sec: 498-A of IPC by wife against husband
and in-laws of husband through lodging false complaints. (ii) Desertion by wife, (iii) Adultery by the
wife, (iv) Wife opting out for second marriage without applying for the divorce proceedings, (v)
Threatening to leave husbands home and threat to commit suicide by the wife, (vi) Cruel behavior,
(vii) Refusing to cook food properly or on time and breaking of the mangalsutra in the presence of
husbands relatives. (viii) Abusing and accusing husband by way of insulting in presence of in-laws or
before office staff members, (ix) Wife refusing to have physical relations with husband without any
sufficient reasons, (x) Lowering reputation of the husband by using derogatory words in presence of
family members and elders, (xi) Threatening to lodge false FIR against husband and in-laws, (xii)
Some other grounds of cruelty i.e. mental disorder and unsoundness of wife, Impotency of wife, illicit
relationship of wife with some other person and initiating criminal proceedings against husband and
in-laws of husband with mala-fide intention by the wife.
xxxiii
AIR 1985 All 253
xxxiv
AIR 1987 Del 111
xxxv
AIR 2010 Bom 16
Page | 10
INTRODUCTION
The aviation sector in the recent years has witnessed an incredible increase in terms
of its size and operations. It has been therefore striving hard to develop resources and
means to have consistent, affordable, and environmentally-efficient supplies of
Page | 11
Page | 12
The delays in the air traffic due to congestion in the airport systems of various
nations often results in needless costs to the airlines, passengers and any such
business or economic activity dependent on aviation. The probable costs of
congestion to the various airline industry, passengers and shippers at various airports
are esteemed to be in billions per year. iv Furthermore this cost can be divided into two
sects i.e. costs directly to the airlines and in terms of value of total passenger time.
The environmental impacts of such delays are an added concern which seeks
immediate attention.
There is an urgent need for a global agreement in the event of increase of aviation
emissions. The global emissions by 2020 from aviation are projected to be around
70% higher than in 2005 even if fuel efficiency improves by 2% per year. ICAO
forecasts that by 2050 they could grow by a further 300-700%. v If the present
emissions levels remain unchecked it has been projected that the carbon pollution
may get almost triple by 2036 and may increase by four times from 2005 to 2050 as
projected by International Civil Aviation Organization (see figure 1).
It has been seen that historically, aircraft designers have been working with the
primary objective of maximizing profits for the corporate shareholders.vi Due to the
rising concerns of climate change throughout the various nations, environmental
performance has off late become a major designing force for the newer aircrafts.
Nowadays the aircrafts are designed for better performance with least carbon and
NOX emissions at a favorable altitude and on a given flight rout. This also brings
down the operation and fuel costs.
This article therefore draws on the various factors of route optimization and focuses
on different elements like conflicts in air, optimizing payloads, flight operations, air
traffic management (ATM), and accuracy of flight plans among others. It also
outlines the various levels at which this concern can be addressed for a cost effective
flight mitigating the bearing on environment.
Page | 13
The basic understanding of the conflicts in air traffic is that, it means and occurs
when two or more aircraft intrude upon the minimum required separation of each
other in flight, such separation as defined by the regulator of air traffic. The
detection of such conflicts is understood as the identification of probable conflicts
that may occur, by predicting the future trajectories the aircrafts in flight based on
their current flight plans, position and headings. In the event of detection of a
conflict, it is resolved by altering the flight plan of one or more of the aircraft so as to
satisfy the minimum separation requirements. Yet, the whole aim is to ensure that
there is conflict-free optimal trajectories planned for all the aircrafts which enter or
exit a given airspace. For that purpose, a static conflict resolution algorithm is
developed which is then used dynamically to create conflict free trajectories and also
to resolve the possible conflicts.
The global commercial aviation industry today works with the primary purpose of
moving people and goods around the world in a way which is both quick and
economical. The aircraft manufacturing industries are in business for making profits
for its shareholders by creating produces and services to suit their needs and
demands. The national governments worldwide are also a stakeholder in this
industry to ensure public safety and for managing the entry and exit of aircrafts in
their airspace through various regulations. There have been some government
regulations in the past for limiting the air and noise pollution levels in and around
the airports. With the growing government concerns anthropogenic climate change
today, there is a growing debate on expanding these emission and noise control
regulations to cover the complete ight regime by way of enforcing a financial
penalty for emissions beyond permitted levels. The real cost of these emissions have
not been understood seriously at this time, but is expected to be significant in the
coming years. As a result, it is incidental for designers of the aircrafts to consider
aircraft emissions and engine performances during the conceptual designing process
with a view to understand and convey to the policy makers the tradeoffs between
economic performance and environmental performance. The economic performance
Page | 14
of the aircraft also to a greater extent depends on the route network over which the
aircraft operates depending on the total emissions that the airfield allows. However,
this is mostly dictated to the aircraft designers to suit a given flight route network.
It would be important to discuss here that we are concerned only with the aircraft
emissions that have an adverse environmental impact. The most inuential of all
those emissions are CO2, NOX and contrail formation. These emissions are directly
proportional to the fuel burnt in the aircraft and also depend on the altitudes that
they fly or are forced to fly in case of airport congestion or conflicts in airspace. In
particular NOX emissions are related directly to the design of the fuel combustor,
engine design, fuel burn, engine cycle and mainly the overall pressure ratio in the
fuel burn process. The modeling of the emissions by contrail formation can also be
possible, but for that there has to be a good detail of the local atmosphere and the
conditions along the various segments of the flight route.
For the purpose of route optimization and therefore aircraft emissions controls there
can be resolve at the following levels. The first being the operational level where
emissions can be controlled by reducing the fuel usage at the operational level of the
aircraft. At the level of airlines it can be mitigated at the level of aircraft designing
and manufacturing itself. Finally at the level of air traffic management there can be
optimization by providing the aircrafts with an accurate flight plans that can be
optimized in route according to the needs of the flight. These optimization at various
levels have been discussed at length below.
Operational level - This is the most direct way for an airline to improve on its fuel
efficiency. This can be achieved by modernizing their aircraft fleet with those which
use the modern technologies and high performance and efficiency engines.
One of the major problems faced by the airports at operational level is the congestion
at the airports. The airplanes in that event are often forced to fly at a different cruise
altitude and speed for which they are not designed. They are made to stay in flight
Page | 15
which also results in unnecessary fuel burns and emissions. It may be noted here that
the significant magnitude of the delays in air traffic presently observed, is an
indication that the current air traffic control infrastructure is not capable enough to
handle the current levels of air traffic. In the light of the forecast that is being
projected about the growth in aviation sector over the next decade, there would be an
urgent need of air traffic control decision-support systems or such automation tools
for addressing the problems of congestion at the various air fields in the world.
Additionally it is also required to develop advanced algorithms for air traffic conflict
detection and resolution for the overall development of the air traffic management
(ATM) system. This is important especially when issues like safety, growing capacity
and their environmental implications are considered.
The new technologies for flight operations can be adopted in like manner as were
adopted in 1970s for the purpose of flight management system. In that there was a
new technology introduced for fuel efficiency, the flight management system used to
automatically set the most efficient cruise speed, altitude, engine power based on the
fuel availability and other such cost parameters involved. vii The other ways to
improve on fuel efficiency at operational level is by reducing unnecessary weight,
increasing load factors Continuous Descent Approach; restraining from the use of
auxiliary power and reduction in the taxiing of the plane at the large airports. It has
been projected that such improvements in the air traffic management (ATM) could
cause less fuel consumption, increase in efficiency estimated to be in the order of 6 12 %viii.
At the level of route optimization- The best route for an aircraft to fly depends on the
various factors for each flight. These include the weather forecast, air currents at the
upper atmosphere, winds, temperatures the amount of payload and the co0sts based
on time for that day. The costs which are time based are especially dynamic as they
are determined by the value of the payload and the schedule and operational
limitations for the crew and the airplane. Wind speeds also have a signicant impact
Page | 16
on the selection of the optimal route for the aircraft. Most of the Flight planning
systems make use of the wind forecasts from the U.S. National Weather Service and
U.K. Meteorological Ofce, which are regularly updated every one to six hours, so as
to include the winds in making the best suited ight plan and calculations for
aircrafts. However the routs can be optimized by nearly every flight planning system
to calculate best flight routs, many airlines still prefer to use fixed company routes
most of the time. A possible reason for the limited adoption of the route optimization
has been the restrictions placed by Air traffic Control (ATC) organizations, overight
permissions, policies of various companies on the routing of aircrafts in certain
airfields. For developing an effective flight planning system, there is need to have
algorithms which contains models of all these restrictions. These models are then
applied together with all the information such as wind condition, temperature,
payload and other costs while still obeying with all restrictions.
Airlines- In recent times, airlines around the globe have carried out a range of
procedures at operational, maintenance and flight planning levels to ensure that
their current fleet of aircrafts flies at optimum efficiency levels. These measures
range from reducing the weight of crockery on flight to washing their flights engine.
For example an airline introduced a new cart for beverages on flight the weight of
which was reduced by almost 9 Kgs. than the earlier model and the savings out of it
is expected to be around $500,000 in annual fuel costs across the fleet.
Several other measures like reducing the weight of the passenger seats, removing
electrical appliances to minimum needs like ovens for serving hot meals on selected
flights, replacing hard cabin divides with curtains, using carbon fiber seats instead of
aluminum alloys etc. are just some of the ways to reduce unnecessary weight on
aircrafts to increase fuel efficiency. All these measures put together can save a lot of
fuel in flight over the time. Another example of such initiative is a successful airline
initiative to save weight by matching the quantity of drinking water with the number
of passengers on board in a more calculated way, instead of filling the water tanks
Page | 17
completely for each flight. ix The fuel consumptions can also be reduced by the
routinely inspection of the aircraft during systematic maintenance checks for the
identification of the possible defects like damaged seals, chipped metal, paints, this
can lower the fuel consumption annually by as much as 0.5%.x
In India, the operators are being advised on improvement in fuel efficiency in their
respective fleet. The operators have already started to reduce fuel consumption by
adopting better operational procedures such as minimum usage of APU, reduced
flap takeoff and landings, idle reverse on landing, proper flight planning system,
adhering to proper maintenance of aircraft, weight reductions in the form of
reducing the weight of cabin equipment, catering services, avoiding carrying extra
fuel on board, etcxi. IATA estimates that within India, a streamlined ATM system can
cut airlines' fuel bills and thus emissions by more than 50 % xii.
Air Traffic Management- One of the key methods to save on fuel during flight
operations is modern approach for flight descent known as Continuous descent
operations (CDO) in which an aircraft descends from its cruise height towards the
airport in a continuous approach with minimum thrust. In earlier approaches the
aircrafts went through a conventional series of stepped descents requiring the pilot to
increase engine thrust to maintain level flight. This new technique helps in saving on
a lot of fuel and up to 40 % less fuel is used in the course of approach phases if CDO
is adopted. Additionally, there is also a significant reduction in noise footprints
together with a remarkable 25-40 % less consumption of fuel through the final 45km
of the flight.xiii
Usually an aircraft flight is divided into two cycles; first Landing and take-off cycle -LTO and second Climb, cruise and descent cycle -- CCD. Looking at the rate of fuel
burn in these cycles separately, the proportion of fuel burnt in both the cycles varies
depending on the flight operations. Particularly the contribution from short haul
flights is more in LTO as compared to long haul flights. xiv For example, the
assessments of Airbus A340 and Boeing 747 average emissions has shown the fuel
Page | 18
consumption by long haul flights are comparatively less for LTO operations. xv As the
fuel consumptions in LTO is fixed, it can be concluded that long haul flights are
more efficient than short haul ones.
The emission modeling is generally done on the basis of carbon footprints per
passenger kilometer basis. It has been found that the carbon efficiency of the short
distance flight is comparatively lower that long haul flights if we generally look at
the carbon dioxide per emissions per seat per kilometer. As the fuel consumption is
highest in landing and take-off cycles and therefore it forms the major part of the
emissions. In the case of larger aircrafts in medium or long haul flights the climb,
cruise and descent cycle forms the major part of the fuel burn and the LTO is not
that significant. However the flight efficiency tends to decrease slightly with an
increase of the distance owing to the larger amount of fuel that has to be carried for
long distances.xvi
Taking into consideration other non-CO2 emissions, one of the key methods which
has been adopted internationally involves the Air Traffic Management (ATM) aimed
at decreasing inefficiencies in flight patterns and encouraging the flight patterns that
take into consideration the atmospheric condition that prevails in flight route. xvii By
the use of futuristic ATM measures like continuous descent operations (CDO),
Controlled Time Arrival (CTA) and System wide information management system
(SWIM) can significantly reduce the emissions by efficiently managing the air traffic,
they have already been proposed for adoption by airlines worldwide. xviii
In another measure to cut down on the fuel burns, the airports have been providing
direct electricity to the aircrafts in place of using their auxiliary power unit. As in the
aircrafts, there is such an auxiliary power unit (APU) in the form of a generator,
which provides power to the aircraft when the main engines are turned off for the
purpose of lightening air conditioning and such other needs when parked at the
airport gate. Many of the airports by providing direct electricity connection to the
aircrafts have reduced the need for switching to APU. There is also research being
Page | 19
done to introduce the use of power generated by fuel cells to replace the APUs. These
cells could reduce carbon emissions by over 6,000 tonnes per aircraft over its
operational life.xix
In India, the new airports are being designed on Green Building Codes to reduce
their carbon footprint. More emphasis has been laid on encouraging them to use
clean and renewable sources for their needs by making use of solar panels, waste
management plants, waste water treatment and rain water harvesting systems. They
are also being encouraged to use Compressed Natural Gas (CNG) operated vehicles
inside and in the vicinity of the airport for reducing emissions. xx
The air navigation service providers (ANS) are also implementing Performance
Based Navigation (PBN) procedures for optimizing the utilization of airspace and
enhancing the capacity of the airports by taking benefit of airborne capabilities and
Global Navigation Satellite Systems (GNSS). For providing sustained and cost
effective benefits to the stakeholders in terms of fuel savings, emission reductions
capacity enhancement and improved airport access, PBN Implementation Roadmap
of India has been established with a view to have a sustained effort in implementing
PBN procedures at all airports and airspace in India. xxi
Page | 20
For example, the performance and characteristics of the airplane are directly
determined by the manufacturer data of the plane. But they must be modified
installing master equpments, configurations to suit the specific needs of the flight
route, flight operations. There can be deviations from such base line data available
from Boeing Airplane Performance Monitoring software. There also has to be an up
to date payload predictions and information inputs and it needs to be integrated with
the reservation systems to make accurate predictions. Such time-based cost effective
prediction turns out to be most accurate when it is integrated with operational
control and crew tracking systems. Integration with weather information systems and
prediction systems for possible delays or deviations are much needed for an accurate
flight plan rather than having rough guesses. The integration of well-tuned planning
and information systems with the calculation of the flight plan helps in achieving the
highest level of accuracy. That makes the flight crew in making more precise
calculations in using the extra fuel that might be needed. That in turn has its effect
on emissions as the longer the aircraft stays in the air with extra load and fuel in
adverse weather conditions, the more will be the fuel urns and emissions.
EXISTING ROADMAPS
The high-level meeting on International Aviation and Climate Change, 2009 agreed
on the following measures to reduce carbon emissions (CO 2) from the aviation
sectorxxii:
a.
2050, and further exploration of the feasibility of more ambitious medium and longterm goals, including carbon-neutral growth and emissions reductions;
b.
aviation;
Page | 21
d.
submission of States' action plans, outlining their policies and actions, and
These
regulations
in mind
the
environmental impact of aviation in the vicinity of the airports and also the society at
large and are regularly updated by the organization through regular international
meetings .
Currently the CAEP is working on the development of an Aircraft Carbon Dioxide
(CO2) Emissions Standard which was initiated as a result of the recommendation by
ICAO Programme of Action on International Aviation and Climate Change. The
programme forms a part of a set of measures which have been undertaken to reduce
greenhouse gas emissions caused by the aircraft emissions. Afterwards the 37th
Assembly (Resolution A37-19) adopted in October 2010, requested the CAEP to
develop a standard for aircraft emissions to be known as ICAO CO2 Emissions
Standard.xxiii
Page | 22
Page | 23
feasibility, benefits to the environment, cost effectiveness, and its impact on the
interdependent stakeholders. After the completion of these steps, the new standards
for the CO2 emissions will then go through the formal review process and the
approval by the relevant bodies of ICAO and the member states which will then be
followed by the incorporation of the same into the national regulatory frameworks of
the nations. The official approval for the same is expected next year. xxv
Besides these there have been many research projects which have been in place for
improving the fuel efficiency in the aviation sector. Some of the most promising
initiatives are Clean Sky Joint Technology Initiative (JTI), US Federal Aviation
Administration (FAA) CLEEN programme, Single European Sky ATM Research
(SESAR), Atlantic Interoperability Initiative to Reduce Emissions (AIRE) and NASA
Environmentally Responsible Aviation Program.xxvi
In addition to the technological advancements and the designs of the aircrafts a key
are of improvement is also the optimization of the air space which again includes
route optimization and aircraft operations. For this, three major Air Transport
Management services have been recognized internationally, xxvii developing a single
sky system for Europe, an efficient Pearl River Delta in China; and a Next Generation
Air Traffic System in the US. xxviii
To make the European sky more manageable and efficient for reduced carbon
emissions, there might be a need to regulate it under a single sky zone. The EU
airspace which is split in 36 different zones for flight control, it has been planned that
they will be merged into 15 larger zones in stages to be known as 'functional airspace
blocks', or FABs. The next step will be to amalgamate these zones into a single
European sky. The European Union has also been working on reducing the need to
take longer routes due to military no fly zones which restrict the operation of civilian
and commercial flights over that airspace. xxix
Page | 24
The EU starting January 1, 2012, restricted the entry of the airlines to those who
chose to join the EU emission trading scheme. Though the program generated a stiff
opposition from many airlines and countries, it is aimed at spurring the airlines to
invest in solutions aimed at deploying new aircraft and flight plan technologies
reducing pollution from this growing source.
In Asia Pacific skies, there was a multilateral partnership established in 2008 of the
air navigation system service providers known as the Asia Pacific Initiative to Reduce
Emissions (ASPIRE). Presently this partnership is formed between the air navigation
service providers from Australia, New Zealand, USA, Japan and Singapore, although
also airlines and other industry stakeholders are associated to specific initiatives.
ASPIRE aims to exchange ideas and collaborate on environmentally-friendly
operational procedures, standards and best practices. xxx
Presently the airspace in India comprises of nearly three million square meters and is
divided into five flight information regions (FIRs): Mumbai, Kolkata, Delhi, Chennai,
and Guwahati (a sub-FIR).xxxi Currently, 14 monopulse secondary surveillance radars
(MSSRs) providing en route coverage, 8 Terminal Area Radars (TARs) and 11 Area
Control Centers (ACCs). There are 12 neighboring FIRs that share common Indian
FIRs: Pakistan, Oman, Yemen, Mogadishu, Seychelles, Mauritius, Male, Sri Lanka,
Malaysia, Myanmar, Bangladesh, and Nepal. Vertical segmentation of air space into
lower, middle, upper, and super-high sectors in the airspace for efficient
management and safe operations practiced in other countries have not been
implemented in India yetxxxii.
For the improvement of air traffic management and the resulting CO2 emission
therefore, Future Indian Air Navigation System (FIANS) Master Plan has been
developed which is based on the estimated growth in air traffic. For the optimum
utilization of the airspace for the operations worldwide, the plan supports the
requirements of cross border operations and standards as well as developing
performance based operations. The main areas of focus for the implementation of an
Page | 25
effective plan for CO2 reduction are use of digital communication; satellite- based
navigation supplemented by GPS Aided Geo Augmented Navigation (GAGAN);
secondary surveillance radars (SSR), ATM Automation and consolidation of 11 Area
Control Centers (ACCs) into four Centers initially and two Centers in the long term;
and implementing integrated weather information system. xxxiii In addition to this
GAGAN, the (Indian Space Research Organization) ISRO is implementing an Indian
Navigation Regional Satellite System (INRSS), an independent, even satellite
constellation built and operated by India aimed at maintaining operations between
other regional augmentations to GPS for global navigation. xxxiv
CONCLUSION
To conclude it can be inferred from the present circumstances that there is an utter
need for a reliable, affordable, and environmentally-efficient energy supply in
aviation industry. Equally important is to develop an effective and stable approach to
concurrently address environmental issues related to noise, air quality, and climate
change impacts in a manner which is cost-beneficial and considering potential
tradeoffs in order to support continued growth. Regardless of the recent instability, it
is expected that the commercial aviation market shall recover with time and is
expected to grow steadily. Consequently it is expected that the environmental
impacts of the same shall increase in the absence of the potential effective measures
for its mitigation and control.
Millions of gallons of fuel can be saved by the airlines every year by having accurate,
optimized ight plans without the need of forcing the airlines to change or
compromise on their schedules or service. Such benefits can be realized by the
airlines by investing in a high-end system for ight planning with cutting-edge
optimization capabilities along with ensuring their precision by making a
comparison of the ight plan values to the actual ight data. In this process there has
to be the identification of the cause of such inconsistencies, and then use this
information to update the parameters used for the calculations in making flight
Page | 26
plans. It has to be ensured that the flight planning systems take full advantage of the
air traffic and of airspace and air trafc management liberalization by working
together with other airlines and operations to develop the best possible ways to
resolve the aviation conflicts.
REFERENCES
Yenneti K and Joshi G 2010, Chapter 18: Carbon Dioxide Emission Reduction
Potential from Civil Aviation Sector -- A Case Study of Delhi-Mumbai Air
Route in the India Infrastructure Report 2010
Steve Altus, Effective flight plans can help airlines economize, Aero Quarterly,
QTR 03|09.
Aircraft CO2 emissions standard metric system, ICAO fact sheet, available at
http://www.icao.int/environmentalprotection/Documents/CO2%20Metric%20System%20%20Information%20Sheet.pdf
Arushi, Stefan Drews, Aviation and Environment, A Working Paper, Centre for
Science and Environment, June 2011.
Page | 27
Lan, S., J.P. Clarke, C. Barnhart. 2006. Planning for robust airline operations:
Optimizing aircraft routings and ight departure times to minimize passenger
disruptions. Transportation Science 40(1) 1528.
ANNEXURE
Figure 1: total global aircraft NOX below 3000 feet, (915 meters) AGL
Source: ICAO Environmental report 2010
Page | 28
Committee on aviation environmental protection (CAEP) eighth meeting, Agenda Item 5: Future
work , update on U.S. aviation environmental research and development efforts, Montral, 1 to 12
February 2010.
ii
Fuel saving contributing to a sustainable air transport development, ATR Customer Services,
January 2011
iii
Steve Altus, Effective flight plans can help airlines economize, Aero quarterly, qtr_03 | 2009, p 27-30,
available at www.boeing.com/commercial/aeromagazine.
iv
R. Deehan. Remarks. Greater Miami Chamber of Commerce Transportation Summit Miami, Florida,
November
29, 2006
v
Reducing emissions from the aviation sector, available at
http://ec.europa.eu/clima/policies/transport/aviation/index_en.htm
vi
Marla, L., C. Barnhart. 2010. Robust optimization: Lessons learned from aircraft routing. Working
Paper, available at www.agifors.org/award/.../LavanyaMarla_paper.pdf.
vii
Air Transport Action Group (ATAG) 2010, Beginner's Guide to Aviation Efficiency www.enviro.aero.
viii
Yenneti K and Joshi G 2010, Chapter 18: Carbon Dioxide Emission Reduction Potential from
Civil Aviation Sector -- A Case Study of Delhi-Mumbai Air Route in the India Infrastructure
Report 2010
ix
Air Transport Action Group (ATAG) 2010, Beginner's Guide to Aviation Efficiency www.enviro.aero.
x
Ibid.
xi
ICAO, 2009, Measures Adopted by Civil Aviation Sector in India presented at High-Level
Meeting on International Aviation and Climate Change, Montreal.
xii
IATA (2008a). 'Building a Greener Future', April, available at http://www.iata.org.
xiii
Air Transport Action Group (ATAG) 2010, Beginner's Guide to Aviation Efficiency www.enviro.aero.
Page | 29
xiv
Page | 30
ABSTRACT
The present mechanism that prevails in India for clearing environmental projects
through environmental impact assessments, defeats the entire purpose of this
vindicatory exercise, which is based on the principle of furthering sustainable
development. The process of assessment of the environmental impacts is the key
ingredient in taking decisions pertaining to environmental clearance, but the
inadequacies of the Environment Impact Assessment (EIA) in India has thwarted the
entire objective of an ecological, economic and social cost benefit analysis for
sustainable development. The procedure laid down for the functioning of this
quintessential process consists of a number of fallacies which are counterproductive
to creating a fine balance between growth and sustainability. This paper analyses the
existential and eventual shortcomings and the impacts on society, which result out of
strict adherence to a perceived just process, as the only means to achieve economic
growth as well as societal harmony. The means employed in India to achieve the
rationale of environmental sustainability is defeated when the EIA norms circumvent
established international practices.
The EIA procedure in India reflects the change from red tapism to green tapism,
with hindrance to ecology as well as the needs of the industry. Thus the need for the
shift from the present system of environmental assessment can be made out from the
inherent lacunae that persist within the bureaucratic system. The plethora of
questions that the EIA raises eventually can be discerned into realizing that the
machinery put in place to achieve its said purpose of rational decision making is
Page | 31
iv
The
compromise between the right to development and the need for environmental
conservation can be disembarked through effective EIAs. The emerging concept of
international standards, by which such degradations is to be controlled and
monitored, v has lent credibility to the anticipation of environmental harm, rather
than its prospective prevention. In its original form the Indian constitution contained
no provision relating to the protection of the environment. vi The fourty second
amendment to the Indian constitution, after the Stockholm declaration, introduced
provisions relating to the protection of the environment. The Directive Principles of
State Policy provide for the duty of the State to protect and improve the environment
and to safeguard the forest and wildlife of the country.vii The duty is also cast upon
the citizens whereby every citizen has the fundamental duty to protect and improve
the natural environment. viii The demand for environmental protection has mostly
arisen out of political necessity rather than the mass realization of protecting the
ecosystem. The Environment Protection Act of 1986 emerged as a result of an
industrial disaster involving Union Carbide in Bhopal.ix Sustainable development has
been defined as what type or extent or development can take place, which can be
sustained by the ecology with or without mitigation. x The competing interests of
development and the conservation of the environment, require a harmonization, of
Page | 32
EIA
The National Environment Policy Act (NEPA), 1969 in the United States introduced
the concept of Environment Impact Assessment (EIA) xiii by facilitating its
implementation through a legislative instrument. xiv The preamble of the NEPA
clearly identifies the purpose of the legislation, which states, To declare national
policy which will encourage productive and enjoyable harmony between man and his
environment. The evolution of EIA can be traced in the international arena to the
Rio Declaration (1992) under Principle 17, which provides for the concept of EIA xv, as
an environmental management tool to reduce the potential adverse impacts on the
ecology, arising out of developmental activities. After the Stockholm conference, the
National Committee on Environmental Planning and Coordination (NCEPC) was
constituted, under the Department of Science and Technology, which initiated the
process towards the formation of the separate ministry concerning the
environment. xvi The international obligations are mandated to be implemented as
provided for under Article 253 of the Indian constitution. xvii The Espoo Convention
(1991), Protocol on Environmental Protection to the Antarctic Treaty (1991),
Biodiversity Treaty (1992) and the United Nations Framework Convention on
Climate Change (1992) exclusively provide for a mechanism of EIA for sustainable
development.xviii In the MOX plant casexix, Danube Dam casexx and the Pulp Mills
casexxi, the court arrived at the deduction that an EIA, should be construed as an
integral part of the principles of due-diligence and the no- harm rule. Thus EIA is
utilized as a universal tool in environmental conservation and management.
The EIA process envisages an important regulatory tool to balance the needs of
society as well as the realization of goal of rational utilization of resources of the
nation. The concept of sustainable development arose out of the deliberations of the
Brundtland Commission in 1987, which defined sustainable development as
"development, which meets the needs of the present generation without
compromising the ability of future generations to fulfil their needs."
xxii
, Thus the
Page | 33
resultant gradual shift from mere economic viability of the certain industrial
activities to a more meticulous analysis of the ecological, societal and sustainability
of the project in question. The Govindarajan Committee effectively strengthened the
argument that environmental conservation priorities were to be tolerated, as long as
they did not hinder the promotion of investment. xxiii The approach of the Indian
government to proceed with an executive order rather than a legislative approach
needs consideration, as a form of rule modification to serve executive interests
delineates from the said purpose.The issue with the use of a notification in contrast to
a legislative instrument strangulates the ambit for debate, discussion and
deliberation, which is the primary safeguard against the exercise of arbitrary powers
by the executive.
proponent, who can present distorted data with the help of the consultants, who are
also financed by the project proponent. This method of preparation of the EIA
report xxxviii defeats the use of this tool as a regulatory mechanism. The cogent
reasoning that follows from consultants financed by the project proponents,
stipulates the manner in which such a report would be unbiased and not client
centric. The Supreme Court of India as also observed that This Court would have
been more comfortable if the environment
by the
Page | 36
which lack practical application in the domain of policy decision making. The
UDHRliv, ICCPR lv and American Convention on Human Rightslvi, acknowledge and
reverberate the essential democratic aspect of the right to political participation. It
reflects an expansive notion of democracy, which cannot be achieved by the states
involvement in the decision-making procedure. lvii The implementation of public
participation adds legitimacy to the environmental decisions lviii and adhere to the
international obligations of access to justice and such pluralistic structures of public
involvement.lixOnce the public hearing is held, the grievance and opinions expressed,
the minutes of the project are sent to the MoEF. lx Though this procedural aspect is
finalized, the low educational levels and environmental awareness hinder the entire
purpose of this integrative exercise. In most cases the help is provided by NGOs lxi
who take up this cause of the locals. A large number of environmental projects are
inadequately researched and biased, as the proposer of the project funds them.lxii The
development policy of India must integrate, the essence of environmental laws,
which advocate accountability, public participation and administrative justice. lxiii The
implementation of the international obligations under the Convention on Biological
Diversity are also under question, when the Indian Biodiversity legislation has faced
criticism over legalizing bio piracylxiv and the structure of the regulatory body skewed
in favour of the government and the bureaucracy.
The willingness of the various bodies to exclude public participation becomes clear
with regard to a number of cases lxv, which have provided public consultation as one
of the essence of Environment Impact Assessment. In the Jan Chetna case the court
clearly held that It is no more res integra that environment is a right guaranteed
under Article-21 of the Constitution. The Environment (Protection) Act, 1986 and
EIA Notification are the means adopted, to protect the right in discharge of the
obligations enjoined under Article-48 A of the Constitution.lxvi The blanket immunity
granted to certain projects with regard to public consultation defeats the purpose of
EIA as it does not take into account any concerns of the public which might actually
be affected in any manner. The rights of the citizens to know and the right to object
to any activity that might impair the right to environment, is an essential criterion
for the complete realization of the statutory and constitutional obligations cast upon
the state. The Supreme Court has also upheld this right to know about the affairs of
the government and the policy decisions that impact their welfare. lxvii The process of
assessment must be tailor made to suit the needs of the people and their concerns,
without having an overarching exemption to certain industries, even if they do not
ostensibly impact the environment. The only instance at which there is public
involvement in the project cycle is the public hearing stage lxviii, which reduces scope
Page | 38
for public participation in the preparation of the EIA report. This only opportunity
provided for public consultation would result in severe injustice to grievance
redressal. The scenario in which there can be informed participation of the local
communities is when the EIA report is provided in the local language, which in
many cases is not followed. lxix In India, weak screening and scoping, poor quality
baseline data, ineffective follow-up, whilst lacking key legislation lxx are the most
glaring loopholes within the prevalent mechanism. Therefore, the prerequisite
necessity for a complete overhaul in the preliminary stages of the EIA
implementation process.
lxxii
of the major shortcomings that the EIA process inherently entails is the last stage
impact on the decision making, while SEA provides an elixir to this accusation by
providing for initial decision-making, as it takes place at the early stages. The SEA
also can be considered as an interdisciplinary approach, which takes into
consideration a number of eventual impacts as well as alternatives lxxviii in contrast to
that of the EIA report. The benefits of the entire of conducting an EIA can only be
reaped when there is the enforcement and procedural compliance to international
standards where EIA reports do eventually impact the decision-making. As stated,
the litmus test of EIA effectiveness lies upon the influence this report has on
decision making lxxix , but in contrast the body reviewing this highly questionable
report is adjudged by an extremely flawed body i.e EAC. Thus the tangible effects of
this purposeful exercise of conducting an EIA can be felt, only when there is a
substantial overhaul of its present purpose, procedure and practice. The inclusion of a
Social Impact Assessment in the decision-making along with the EIAlxxx would also
provide for additional substantiation of the social and environmental cost-benefit
analysis. The developmental programmes, which are inclusive of the social impact
assessment, alleviate poverty, enhance inclusion and building ownership while
reducing and compensating for adverse social impacts on the vulnerable and the
poor.lxxxi An effective EIA results in the much needed mitigation measures and a
clearly charted environment management program. Thus an integrative approach
towards Indias environment concerns can alleviate the downtrodden methodology of
impact assessment, by taking environmental, social, and economic and health
considerations as concurrent lines of analysis for a reasoned report. It has been
extensively accepted that a SEAlxxxii is significantly more likely to foster sustainable
development than project-level EIA. lxxxiii The shift from EIA, which lacks in
implementation lxxxiv , to SEA can be considered as the refined approach to
sustainability.
Page | 40
CONCLUSION
The problems of overpopulation and urbanization are typical phenomenon that
occurs in every developing nation, at particular phase of its growth. This stage of
growth results in sound economic policies but rather unsound environment friendly
policies, as the government tries to balance the needs of the state while adhering to
the principles of sustainable development. The result of reconciling the aspects of
development and sustainability must seem tangible and effective, rather than
represent mere tokenism on part of the government. The prevalent EIA mechanism
in India has failed to address issues on a number of constant criticisms levelled by
environmental organizations and various pressure groups. There is an urgent need
for a shift from the prevalent EIA mechanism to an independent regulatory body,
which lacks political interference and corporate pressure from various lobby groups.
The EIA notification allows acquisition of land for projects even before an application
of environment clearance and pre-construction activities of hydroelectric projects
goes unregulated.xciThere clearly exists a lack of an enforcement regime and requires
only half-yearly reports from the project proponent. The ostensible nature of the EIA
process in India portrays the inherent flaws with its initiation in policy making to the
eventual implementation. The objective of sustainable development cannot be
achieved through a sustained process of exploitation of the recurrent loopholes of the
environmental procedures and the wilful acquiescence to the demands of the
industry.
The Supreme Court in the T. N. Godavaraman casexcii has held that conformity to the
principle of sustainable development as constitutional requirement based on the
principle of intergenerational equity. It can be understood that the concept of
sustainable development entails legal sanctity rather than being a mere policy
decision, performed at the discretion of the executive. The prevailing need for a shift
from the current EIA process can be understood when the former Union minister for
Environment and Forests in 2011 went to the extent of terming the EIA process in
India to be a joke. xciii The EIA notification of 2006 has also devolved powers to the
Page | 41
Page | 42
The industrial perspective must also change from the viewpoint of EIA being a
hindrance, as future costs of litigation, resulting compensation for damages,
environment disasters and their mitigation can be determined on the basis of
accurate analysis. Thus if the industrialist realizes the benefit that results out of this
process, then the demand will be for voluntary compliance, rather than evading the
requirements of the EIA process. The bureaucratic control and the concerns of the
capitalists can be dealt with an independent regulatory body, free from the political
control of the Ministry of Environment and Forests. The number of EIA scams and
the affirming judgementsxciv vindicating the failure of the environmental regulatory
bodies in India clearly put forth the need for an overhaul of the present EIA
mechanism, even after the EIA notification of 2012. The fallacies of these
notifications lies in their ambiguity and inability to deal with a number of agencies,
thus necessitating the requirement of a comprehensive legislation with clear
devolution of roles, responsibilities and powers of various state and central bodies. In
2007, when there was severe questioning of the Quality Council of India xcv process by
certain groups and individuals of the accreditation mechanism, the QCI brought out
a list of EIA consultants with flawed assessment reports. In the case of the
Kundankulam Nuclear Project, which is now in operation, the report was prepared by
the National Environmental Engineering Research Institute (NEERI), which was
amongst the list of flawed EIAs put forth by the QCI in 2007. xcvi Such instances
entirely defeat the process of EIA as a solution to the problems of society.
The Indian government can under the powers granted by Section 3(3) of the
Environment Protection Act, 1986, create an independent regulator, which would
deter the political and bureaucratic functioning of the EIA mechanism. The
establishment of the National Green Tribunal has done much to the cause of the
environment and the effective implementation of the present provisions without
providing scope for exploitation of the plethora of loopholes present in the
notifications. The National Green Tribunal also has wider powers to go into the
merits of even policy decisions impacting the environment. The NGT also cannot
circumvent the prevalent law in the form of notifications, which are pro-industrialist
considering the number of EIA scams and the multiple amendments brought about
in the past two decades, with no significant remedial measures. The creation of an
independent regulator would provide the monitoring that goes into enforcing the
laws of the land. This scenario of a single regulator can be compared to that of a
Comptroller Auditor General (CAG) or Securities and Exchange Board of India
(SEBI), with little or no political influence in their functioning, concerning a wide
number of issues.
Page | 43
In 2011 the Supreme Court in its order xcvii requiring an independent regulator for
environmental clearances, clarified the extent of judicial review in cases where
environmental clearances were already granted. The intentions of the Indian
government become ostensibly clear and apparent for the reasons given for the nonimplementation of this order. The reasons stated before the Supreme Court include
reasons that such a regulator would face the same fate as that of the National Green
Tribunal with problems related to finance and infrastructure and instead proposed a
separate authority.xcviii The proposition of an authority would not remedy the lacunae
that the present system faces considering the political, bureaucratic and industrial
stranglehold. In a country like India, where survival trumps the issues of the
environment, the kind of accountability that the people demand in such
circumstances from the political class, must be understood in its entire practicality.
For a society to move upwards from one stage to another of Maslows hierarchy of
needs, there needs a satisfaction of the basic needs, in a developing country such as
India. The implementation of the EIA is eventually a long-term benefit to society
rather than a short term, profit-earning asset which yields no net result. The hurdles
that a developing economy faces in terms of balancing the interests of society by the
way of sustainable development can be tackled through reasoned decision making.
As Vanderheiden notes that a law that mandates sustainable forestry practices on
every day but Sunday would obviously be ineffective in maintaining a sustainable
forest.xcix This Indian approach requires a shift to a stable, effective and transparent
EIA mechanism.
In the 21st century there is a great demand for green products especially in developed
countries and this can to be some extent attributed to the environmental awareness
and education. The concept of corporate social responsibility has also provided a
humanistic concern towards industrial ventures and provided a rationale for a form
of self-actualization for the corporate world to meet the requirements of
environmental impact assessments. Thus in this scenario there is a shift from
meeting requirements not out of legal compulsion but rather a form of social
obligation. In this regard, the National Environmental Awareness Campaign (NEAC)
since 1986 has been striving to create environmental awareness at the national level.
The real shift from the process of Environmental Impact Assessment can only be a
change in the mind-set and policy of the people and the government, concerning the
very need of the environment. The lack of integrated spatial planning in India and its
confinement to urban areasc has also acted as a deterrent to the principles approach
to the policy of sustainable development. The legal sanctity granted to the priority to
protect the environment
ci
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Page | 49
lxxxi
Bikram Kumar Dutta and Sanhita Bandyopadhyay, 'Environmental Impact Assessment and Social
Impact Assessment - Decision Making Tools for Project Appraisal in India' [2010] IJHSS 2, 6.
lxxxii
Jos Arts, Paul Tomlinson and Henk Voogd, EIA and SEA Tiering: the missing link? Position
International Association for Impact Assessment, Statement on impact assessment to the Third
Preparatory Committee Meeting of the World Summit on Sustainable Development (WSSD), New
York,(2002) p.25 .
lxxxiv
John Glasson, Environmental Impact Assessment: The Next Steps? Built Environment ,Vol. 20,
P. Leelakrishnan (2009).Environmental Law in India. 3rd edition .New Delhi: Lexis Nexis . 315.
lxxxvi
Ibid at 317.
lxxxvii
Ban.L.J.(2002) p.129.
lxxxviii
Ramachandra Guha How Much Should a Person Consume ? Thinking through the Environment
Subhash Kumar v. State of Bihar, AIR 1991 SC 420; Charan Lal Sahu v. Union of India AIR 1990
SC 1480.
xc
Divya Badami Rao and M. V. Ramana Violating Letter and Spirit: Environmental Clearances for
Koodankulam Reactors, Economic and Political Weekly, Vol. 43, No. 51 (Dec. 20 - 26, 2008), p. 14-18.
xci
Leo F. Saldanha, Abhayraj Naik, Arpita Joshi, Green Tapism: A Review of the Environment Impact
Assessment Notification 2006 (1st, Environment Support Group, Bangalore 2007) p.17-18.
xcii
xciii
Business Line, 'Environment assessment is a joke, says Jairam: wants 3rd party EIA'
(www.thehindubusinessline.com
2011)
<http://www.thehindubusinessline.com/government-and-
policy/environment-assessment-is-a-joke-says-jairam-wants-3rd-party-eia/article1553560.ece>
accessed
10 January 2014.
xciv
xcv
Kohli,
'Flawed
EIAs
sail
through'
(www.civilsocietyonline.com
2013)
Lafarge Umiam Mining Pvt. Ltd. v. Union of India [2010] 1 W.P (C) No. 202 I.A No 2609-2610 (SC).
Page | 50
xcviii
Utkarsh Anand, 'Govt tells SC regulator for green nod not feasible' (www.indianexpress.com 2013)
<http://www.indianexpress.com/news/govt-tells-sc-regulator-for-green-nod-not-feasible/1186471/>
accessed 8 January 2014.
xcix
N. Raghu Babu, 'Environmental planning as a tool for environmental protection - The need and the
possibilities'
(www.gisdevelopment.net
<http://www.gisdevelopment.net/application/environment/overview/envo0002pf.htm>
2010)
accessed
January 2014.
ci
Bombay Dyeing & Mfg. Co. Ltd v. Bombay Environmental Action [2006] 1 Civil Appeal NO. 1528
(SC).
cii
ciii
Delhi Transport Corporation v. DTC Mazdoor Congress [1991] 1 SCC 600 (SC).
Environmental Policies in Developing Countries Author Ingo Walter and Judith L. Ugelow
Ambio, Vol. 8, No. 2/3, Technology, Development and Environmental Impact (1979), p. 102.
Page | 51
ABSTRACT
Sexual Violence describes the deliberate use of sex as a weapon to demonstrate power
over and to inflict pain and humiliation upon, another human being. Each society has
mechanisms that legitimize, obscure, deny and thereby perpetuate violence against
women. Powerful social institutions - the family, the community and the state
perpetuate all the different categories of sexual violence and maintain status quo as
far as womens rights are concerned. The family has been traditionally considered as
a retreat, where individuals are able to find security and shelter, a private heaven
where peace and harmony prevail but throughout the world there are practices in the
family that are violent towards women and harmful to their health. This essay tends
to highlight the family violence which is generally hidden under the notions of
intimacy of private sphere as the belief that family integrity should be protected at
all costs preventing many women from seeking outside help. Focusing on these
issues the essay has been divided into three parts. In Part I of the essay the authors
will analyze the concept and determinants of sexual violence. Part II will throw lights
on few illustrations of sexual violence occurring in the family like Female Genital
Mutilations, Incest, and Marital Rape, Forced Marriages, Prostitution etc Finally
Part III will conclude with some suggesting remedies which will reveal that how
these offences are crimes of power, the conceptualization of which are highly
gendered and the mechanisms of law are inadequate and require massive
overhauling.
Page | 52
Violence against women in India is an issue rooted in societal norms and economic
dependence. Discriminatory practices are underlined by laws favoring men.
Inadequate policing and judicial practices deny female victims proper protection and
justice. Although female participation in public life is increasing and laws have been
amended, India still has a long way to go to make Indian women equal citizens in
their own country. Over the last several decades, measuring the scope and nature of
violence against women has evolved into a global issue. Violence against women has
captured the interest of researchers, advocates, clinicians and service providers in a
variety of disciplines including anthropology, criminology, epidemiology, medicine,
psychology, sociology, and womens studies. i Violence is generally conceptualized in
terms of physical force and destructive conduct. The simplest definition of violence is
behavior designed to inflict injury on a person or to cause damage to property. ii In a
narrower connotation, violence implies an act carried out with the intention or
perceived intention of physically hurting another person. iii It is the use of force or
constraints to cause harm by commanding obedience to a required set of social or
moral values.iv
Sexual Violence is all pervasive and manifests itself in a number of forms, which
exists in all institutions of life. It is possible to classify sexual violence in four main
categories. First is direct violence, which is most commonly emphasized, examples of
which are rape, molestation, forced prostitution, female genital mutilations, etc.
Second is indirect violence, which covers harmful, sometimes deadly situations or
actions which, though due to human intervention, do not necessarily involve a direct
relationship between the victims and the institutions or the persons responsible for
their plight, for e.g., child marriage and arranged marriages, where the women is not
Page | 53
violence- which relates to three groups of fundamental right- civil rights, political
rights and social rights. Repressive violence is used to suppress political or class
movements, for e.g., rape or sexual abuse targeting towards dalit (low caste) women,
mass rapes during international or internal armed conflicts. Fourth is alienating
violence, which deprives the woman of her higher rights, such as right to emotional,
cultural or intellectual growth. Examples are marital rape, prescribing dress code to
regulate female sexuality, etc. v
gender violence are meagerly changed with time, thus, creating a belief that we are
still living past in present. vii Gender Violence transcends through all phases of a
womans life and acquires innumerable forms on the broad spectrum, including
feticide, infanticide, sexual violence, domestic violence, etc. Nairobi Forward looking
Strategies states that violence against women exists in various forms in all societieswomen are beaten, mutilated, and burned, sexually abused and raped. Such violence
is a major obstacle to the achievement of peace and should be given special
attention.viii
Due to the immense vastness of the issue, the present study confines itself to one of
the crucial and sentimental aspect of gender violence - sexual violence occurring in
the family.
constituted 3.4% of all crimes against women. Last year in India on average 22
women were killed per day because their families could not meet dowry demands.
The NCRB statistics indicate that an Indian woman is most unsafe in her marital
home with 43.6% of all crimes against women being "cruelty" inflicted by her
husband and relatives. These numbers do not include incidences of marital rape, as
India does not recognize marital rape as an offence.
Mentioned below are few illustrations of sexual violence occurring in family:
1. FEMALE GENITAL MUTILATIONS:
Female Genital mutilation (FGM), a deeply rooted traditional practice believed to
have started in Egypt some 2000 years ago, has been reported in some major Asian
Countries such as India, Indonesia, Malaysia and Sri Lanka. xiii FGM or Female
circumcision as it is sometimes erroneously referred to, involves surgical removal of
parts or all of the most sensitive female genital organs. It is an old age practice which
is perpetuated in many communities around the world simply because it is
customary.xiv FGM forms an important part of the rites of passage ceremony for some
communities, marking the coming of age of female child. It is believed that by
mutilating the female genital organs her sexuality will be controlled but above all it
is to insure the women virginity before marriage and chastity afterwards.
2. INCEST:
Incest usually refers to the sexual abuse of a child or adolescent within the family by
a Parent, authority figure relative, even a more powerful sibling. Generally, incest
victims are children because of their vulnerability and powerlessness though the
possibility of inter family sexual exploitation and abuse of adult females cannot be
ruled out. In many parts of the world incest is culturally tolerated and it is not listed
as specific criminal offences in the penal laws of majority of countries. Incest occurs
in varied forms ranging from forced masturbation, touching and fondling of genitals
to rape. Indulgence of close male relatives including the fathers brothers, uncles and
grandfathers is quite common. Incest is practiced by certain cults, like the Hindu
Page | 56
Sakti sect in India, in the belief that it is a higher grade of sexual intercourse and an
advance step towards religion. xv In an endogamous Indian Group called Baiga,
incestuous marriage is practiced. xvi In a study conducted by RAHI, an NGO in India,
it was found that out of 457 respondents, 40 percent had been abused by at least one
family member.
xvii
Page | 57
first births in many developing countries are to women aged less than 19 years. xxii In
India, in a few states, like Rajasthan, MP and Gujarat, thousands of children are
married off on auspicious days, like Akshaya Tritiya and in few cases marriages are
reportedly solemnized when the prospective bride was still in womb. xxiii
Considering the vast rampant practice of child marriages, the UN Convention on
Consent to Marriage, Minimum Age for Marriage and Registration of Marriage 1962,
was opened for signature on 10 November 1962.xxiv The Convention contemplates
full and free consent of the parties to the marriage, xxv which shall not be less than 15
yearsxxvi and emphasizes the compulsory registration of the marriages. It is pathetic
that a lot of countries, including India, have not signed this Convention. However,
there are recommendary laws regarding age of marriages, but in most countries,
formal legal systems based in courts operate alongside customary and traditional
systems based in local institutions or families. xxvii
It is quite obvious that the child bride submits to sex with an older man and her
immature body must endure the damages of repeated pregnancies and childbirths,
which ultimately lessens the life expectancy of girls, affects their health, nutrition,
education, and employment opportunities and lowers their economic participation
rate. All these consequences severely nullify the human rights of the girls involved.
5. FORCED MARRIAGES
A forced marriage is a marriage conducted without the valid consent of both the
parties, where duress is a factor. xxviii Forced marriages are different from arrange
marriages to which the parties give consent happily for the matches selected by the
family.
Forced marriages may involve both men and women as victims, but primarily it is
consider to be an issue of violence against women. The issue of forced marriage is a
violation of basic human rights and a form of child abuse. Often, victims are
subjected to non-consensual sex, physical and emotional abuse, isolation, and threats
Page | 58
Page | 59
Even cases reported in Gujarat shows that, rapist is not a stranger lurking in the
shadows to pounce on victims. He is most likely to be a family member, a distant
relative, a neighbour or even an employer. Police records state that of the 439 rape
cases reported in the state, 438 victims have told investigators that they knew the
assailant. In past five years, the ratio of cases where the assailants were known to rape
victims hovers at around 98 per cent. xxxvi
Of the 24,923 rape incidences in India in 2012, 98% of the offenders were known to
the victim which is higher than the global average of approximately 90%. xxxvii Known
people do not even spare little girls who have not even started school. In Bapunagar
recently, a four-year-old was raped by a 23-year-old man. He was her neighbour who
lured the girl with games and chocolates and took her to his residence to play. He
played with her life instead. Most of such cases remain unreported as maximum
sexual violences in these states are done by the members of family and thus the
stories are not projected to the outer world. "It is a myth that Gujarat or Kerala is
safe for women. Here, danger lurks more in the homes and neighbourhoods as in
majority rape cases. To my mind, this is a bigger breach of trust, as the known men
cultivate trust in the girls and execute the crime with great planning in cold
blood.xxxviii
7. PROSTITUTION
Generation after generation, all the women in that sub-caste, they become
prostitutes. And nobody thinks that its unusual, that its something horrendous.
- Urmi Basu
In India every 40 girls under the age of 15 are forced into prostitution. Nearly 1.2
million sex workers are below the age of 18 with about 40 underage girls being
forced into prostitution on a daily basis. With the 8 % of increase in the flesh trade,
India has become one of the prominent names in child prostitution. Research
suggests that there may be as many as 10 million children in involved in prostitution
worldwide. Theres a high rate of suicides among these girls because they have no
Page | 60
escape. Girls who tried to get are beaten black and blue and locked up all over
again." xxxix In some Indian villages, girls are sent into prostitution by their families - a
tradition that began as religious obligation but is now continued for money. xl
Pastor Paul Ciniraj of Paul Ciniraj Ministries in India, describes the tragic cycle of
prostitution that Dalit (depressed community) girls, as young as 10-years-old, are
forced into by their own families in Rajasthan State. The girls are mostly aged
between 12 and 15, though some are as young as 10. They stand at the roadside along
with their fathers and brothers who fix the price for them. Members of the girls
families are well aware of the brutal behavior of customers who often ravage the
little girls. Many of the child sex workers contract sexually transmitted diseases.
xli
The tribal community of Bedia that resides along the Jaipur Highway outside
Bharatpur takes pride in their family business which is "Prostitution". Customarily,
were entertainers in Rajasthan and MP. It was their occupation to for the women and
girls to perform for feudal lords. With the changing times Prostitution has become
their
family
tradition.
Adolescent girls are initiated into the family 'tradition', while their brothers become
'agents'. According to Prof K K Mukherjee, former head of department of social work,
DU, "There are 91 families in Khakranagla. Of these, 75 are of Nat, Bedia and Gujjar
castes 46 of them engage in
sex work. Apart from the Bedia, there are other tribal communities such as the
Kanjars, Nuts and Sanshis who takes up prostitution as their primary source of
income. xlii
CONCLUSION
The protection of society and deterring the criminal is the avowed object of law and
that is required to be achieved by imposing appropriate sentence. xliii It is expected of
the courts to operate the sentencing system as to impose such sentence which reflects
the social conscience of the society. xliv At a fundamental and general level, what is
Page | 61
needed is a social revolution for empowering women which must seek to reform
the mind-set and old thoughts of our society. Such change cannot be achieved in a
courtroom or through mass protest. It requires instilling particular values to boys
and girls, at home, at school and in the public sphere. Conceptions of masculinity
and femininity must be readjusted to place emphasis upon respect for the self and for
others. This change in mind-set must be accompanied by institutional reform.
Victims of violent crimes are brutalized not just by their attacker but thereafter by
the system they appeal to or live with. Women in India tend not to appeal to the legal
and criminal system because, far from being a source of protection and
empowerment, they find that this system makes them even more vulnerable to
abuse.xlv Firstly, India needs to talk to itself more to make its homes safer for women.
Victims of family violence suffer inherently more than victims of stranger violence.
It is not without controversy to suggest that an attack by an intimate partner is more
deserving of censure than an attack by a stranger. xlvi The relative absence of a
concept of family violence in criminal law means that the criminal lawunlike the
civil lawtypically responds only to parts of the overall pattern of family violence.
This may limit the role the criminal law can play in addressing family violence and
may distort the handling of family violence within the criminal system. xlvii
Criminal legislation must be amended to include specific offences committed by an
offender who is in a family relationship with the victim because mostly family
violence occur over a long period of time; and is typically under-reported and underenforced, and may occur in non-physical forms. As a result, it may be difficult to
prove each particular incident of family violence. This effect flows on to other legal
frameworks that depend on the criminal law, such as victims compensation, with the
effect that family violence victims are also typically under-compensated. There may
be alternative ways for the criminal law to deal better with cases of family violence,
short of creating an offence of family violence but nonetheless responding to the
seriousness of the conduct. These include options exercisable at the point of charging
Page | 62
REFERENCES
i
Charle M. Renzetti, Jeffery L. Edleson & Raquel Kennedy Bergen, Violence against Women 23(2 nd ed.)
ii
PR Raj Gopal, Social Change and Violence- The Indian Experience 4 (1987).
iii
Gelles and Straus, Freedom from Violence- Womens Struggles from Around the World 10
Yumi Lee, Violence Against Women- Reflections on the Past and Strategies for the Future- An NGO
Perspective, 19 Adelaide law Review 45.
viii
Document of the World Conference to Review and Appraise the Achievements of the UN Decades
for Women: Equality, Development and Peace, para 258 (1985)
ix
Ms Radhika Coomarswamy, Preliminary Report submitted by UN Special Rapporteur on Violence
Against Women - Its Causes and Consequences 117 (1994).
vii
UN Commission on Human Rights, Integration of Human Rights of Women and the Gender
Dona John, Omair Ahmad & Maria Schneider, India: Violence Against Women. Current Challenges
and Future Trends, FUR DIE FREIHEIT available at http://www.en.freiheit.org/India-Violence-AgainstWomen-Challenges-and-Trends/1322c27061i1p/index.html
xii
S. Anderson & D. Ray, The Age Distribution of Missing Women in India , Economics & Political
Weekly; Dec., 2012
xiii
Ms Radhika Coomarswamy, Cultural Practices in the Family that are Violent Towards Women
Report of the UN Special Reppporteur on Violence Against Women, Its Causes and Consequences 9
(2002).
xiv
Fact Sheet no.23, Harmful Traditional Practices Affecting the Health of Women and Children,
Office of the Commissioner for Human Rights available at http://www.un.org
xv
The Devdasis of Kudithini Gillage , Victims of a Denigrated Culture, Groots Newsletter, Working
Womens Forum (1998), available at www.ashanet.org/library/articles/devdasis.199812.html; see also
Ms. Radhika Commaraswamy, Report of the Special Rappoorteur on Violence Against Women, Its
Causes and Consequences, on Cultural Practices in the Family that are Violent Towards Women 28
(2002)
Id.
xvi
xvii
The RAHI Findings: Voices from the Silent Zone- Womens Experience of Incest and Childhood
Sexual Abuse 14 (1998)
xviii
Diana EH Russell, Rape in Marriage 2 (2nd ed., 1990)
xix
xx
xxi
Sexual Assault Information Sheet, Wisconsin Coalition Against Sexual Assault, 1992
Diana EH Russell, Supra Note. 18
Dona John, Omair Ahmad & Maria Schneider, Supra note 11.
Page | 63
xxii
Aarti Dhar, Prevent child marriages on Akshaya Tritiya, THE HINDU April 22, 2012 available at
United Nations Population Fund, The State of World Population-The Right to Choose:
Parth Shastri, Trust raped within the family, THE TIMES OF INDIA Ahmedabad Dec. 25, 2012
availabel at
Rebecca Raphael, Girls Forced into Prostitution, ABC NEWS July 13, 2013 available at
Page | 64
xl
Mallika Kapur, Tradition forces girls into prostitution, CNN Sept. 21, 2011 available at:
http://thecnnfreedomproject.blogs.cnn.com/2011/09/21/tradition-forces-daughters-into-prostitution/
(last visited on Dec. 19, 2013 at 13:00 hrs.)
Mercy Ciniraj, Young Dalit Girls Forced Into Prostitution, WordPress Oct. 21, 2013 available at
http://pciniraj.wordpress.com/2013/10/21/young-dalit-girls-forced-into-prostitution/ (last visited on Dec.
10, 2013)
xli
India Today Online, Child prostitution in India: Awareness can help!, INDIA TODAY Nov. 25, 2013
available at http://m.intoday.in/story/child-prostitution-in-india-awareness-can-help/1/326450.html (last
xlii
Felicity Le Quesne, Violence against women in India: culture, institutions and inequality, THE
INTERNATIONAL Sept. 29, 2013 available at http://www.theinternational.org/articles/467-violenceagainst-women-in-india-culture (last visited on Dec. 30, 2013 at 16:00 hrs.)
xlv
Recognizing Family Violence in Criminal Law - Aggravated offences occurring in a family violence
context, (ALRC CPS 1) /7 Australian Law Reform Commission available at
xlvi
Recognising Family Violence in Criminal Law Family Violence as an Offence, (ALRC CPS 1) /7
Australian Law Reform Commission available at http://www.alrc.gov.au/publications/7-recognisingxlviii
Page | 65
Page | 67
With the advent of increasing powers of the media and a tremendous advancement
in technology, countries all around the world are starting to realise the proportional
misuse which this kind of advancement brings. For instance, in the Radia-tapes case,
a writ petition was filed before the Supreme Court challenging unauthorised
publication of private conversations between industrialist Ratan Tata and Nira
Radia.
xviii
The question for consideration before the Court was whether the
publication of the private conversations was covered under the exception of public
interest? This case highlighted the burning need for legal recognition and the
consequent protection of the inherent right of privacy in India.
Now, let us look at how far the Indian legal system goes, so as to enumerate the
aforesaid. In India, the question of including privacy as a fundamental right arose in
1964 in Kharak Singh v. State of U.P. &Ors.xix which equated privacy to an essential
element in human existence. The view was strengthened in Autoshankars case xx
wherein the Supreme Court held that privacy is implicit in the right to life and
liberty guaranteed to the citizens of India by Article 21 of the Constitution. It is a
"right to be left alone".xxi
Apart from judicial precedents on privacy, the main legal provision that deals with
data protection is Section 43A of the Information Technology Act, 2000 which
provides a civil remedy in the form of compensation proportional to the extent of
damage caused by the lack of adequate security measures taken by those persons
mentioned in the provision. The Section simply put, provides a remedy to an
individual, against those organisations controlling confidential or private data which
fail to exercise reasonable security measures. The two major lacunae in this provision
is firstly, it is limited to only corporate persons i.e., a company, a firm, sole
Page | 68
(i)
(ii)
Page | 70
(ii)
Ambiguous phrase
(a)
Page | 71
reports
disclosed
confidential
information
about
the
ongoing
CBI
regulating the affairs of the police is negligible. Past attempts made by the union in
the form of the Terrorist and Disruptive Activities (Prevention) Act, 1987 and
Prevention of Terrorism Act, 2002 to control police functions have clearly failed and
have been repealed. xxxviii Nevertheless, there are many statutes that help govern the
functionality of the police to a considerable extent, namely:
1. The Police Act, 1861: The Act being passed before independence finds its
applicability throughout most part of India. It establishes the role of the police
as mere law enforcement agency, and is silent as to a more appropriate
service-oriented role of which enforcement is only a part. xxxix The Act casts a
duty on the police to collect and communicate intelligence affecting the
public peace.xl Further, it mandates that every police officer must maintain a
diary in order to record complaints and other related information. xli
On a close inspection of the law, it is identifiable that the police may
disseminate information on grounds of public peace. Does peace mean
quenching public thirst for information or the medias urge to stay in
business? In cases like the Nitish Katara murder case xlii and the Bijal Joshi
gang rape casexliii, if it were not for the media, the accused would have gone
unpunished. This is a clear indicative of how the media has used unauthorized
sources to pollute the minds of the judiciary as well.
2. The Indian Evidence Act, 1872: The Act entails that evidence cannot be given
from unofficial public documents relating to any affairs of State, which
includes information held by the police, without the permission of the head of
the relevant department. xliv No public officer shall be compelled to disclose
communications made to him in official confidence, when he considers that
the public interests would suffer by the disclosure.xlv Further, no police officer
can be compelled to reveal any sources of information relating to the
commission of any offence. xlvi
However these rules are clearly not adhered to. This makes it clear that it not
the lack of law but the lack of enforcement of the law that defeats justice.
Page | 73
Since the police consider themselves as the law enforcement authority, laws
that regulate the police itself is left unenforced or enforced at the will of the
police. This opens the doors of arbitrariness as there exists no system of checks
on the working of the police.
3. The Code of Criminal Procedure, 1973: The Code provides clear guidelines to
illustrate the procedure to be followed in conducting investigation. The
powers of the police during investigation include the right to examine
witnesses, to search and to maintain records. xlvii Since these records are
publicly held documents, they are made available to the general public for
scrutiny. xlviii However such liberty must be given to the accused to decide
whether the information seeker must be given such information or not.
It is opined that the general rule must allow the subject of the information to have
the greatest say in determining the dissemination of such information. However, the
law may lay down the exceptions to this rule. In this way, privacy will be the rule and
distribution will be the exception and not vice versa.
RECOMMENDATIONS
AMENDMENTS TO THE PRIVACY BILL.
1. There is a need to change the words citizens of India to all individuals in
the object clause of the Bill for reasons stated earlier. The Universal
Declaration of Human rights provides for The right [of alien individuals] to
protection against arbitrary or unlawful interference with privacy, family,
home or correspondence. xlix Alongside this change, Section 8 of the proposed
Bill must be amended to provide for the penalising of a non-citizen if he acts
in contravention to the provisions of the Bill. Thus, a man's inherent right to
his privacy must be extended to citizens and non-citizens alike.
2. Also, the object clause of the Bill must contain the reason for having a
statutory right to privacy and the corresponding exception to clarify the
nature of the right being non-absolute. Therefore, the phrase that is likely to
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best summarise the need to have a Privacy Bill would run along the following
lines: A free and democratic society requires respect for the autonomy of
individuals, and limits on the power of both state and private organizations to
intrude on that autonomy. Privacy is a key value which underpins human
dignity and it is the reasonable expectation of every person. l
3. Moving onto the crux of the Bill, we cannot help but emphasise the need to
define the right to Privacy in crystal-clear terms. The proposed clause under
Section 3 of the Bill that will define the right to privacy reads as follows: The
right to privacy is a composite of the right of the individual to be protected
against intrusion into his personal life or affairs, or those of his family, by
direct physical means or by publication of information li and the right of the
same individual to freely choose under what circumstances and to what extent
he will expose himself, his attitude and his behaviour to others. lii
4. The biggest concern in terms of ambiguity in phrases in the proposed Bill is
with respect to processing. The Bill provides that processing information is a
function that vests with the data controller [ i.e., with the police department
and the media houses].liii Although it is difficult to exclude both these entities
from processing information, it is necessary that in the light of preserving
privacy, it is essential that reasonable restrictions be placed on these entities.
Although Section 19 lays down certain exemptions such as public interest,
established code of ethics, prevention of crime, etc., these exemptions can be
extremely threatening as the data controller need not take the consent of the
data subject before processing such information. This is highly dubious and in
contravention of similar provisions in foreign countries liv , wherein it is
necessary that the data subject should unequivocally give his consent at every
stage of processing information. Therefore the necessity of consent is an
absolute requirement which sees no limitations.
In light of the increasing human rights violations that are seen due to the acts
of the policelv as well as by the media, it is essential that the data subject be
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given some powers with respect to information being processed. Even in case
of extremely grim situations, wherein it is impossible to take the consent of
the data subject; there has to be an intimation made in a form of a reasonable
notice.
5. The most important recommendation encompasses the enhancing of the
powers of the self-regulatory body to include the responsibility of
disseminating personal information to media men and any third party that
seek such information for genuine purposes. A self-regulatory body is always
preferred over the regulations adjudged by a Court of Law. lvi Therefore it is
suggested that the already provided for (Section 43), National Data Controller
Registry take up the aforementioned task. The registry must not only
maintain records but must also be vested with the power to impart registered
data to third parties [e.g., the Media] if it so deems fit. This will help resolve the
issue of unofficial interactions between the media and the policemen.
SETTING UP POLICE COMPLAINTS REGISTRY BOARDS
The police are highly powerful in terms of their statutory powers and functions. Most
Police Acts lvii do not focus on public accountability, thereby increasing their
immunity from public scrutiny. Therefore, the police officials acquire a sense of
hierarchical superiority over the public. This runs in contravention of the theory of
popular sovereignty and good governance. However, in countries like the UK such a
violation is addressed by the Independent Police Complaints Commission (IPCC), lviii
which supervises and investigates public complaints against the police. Similarly
South Africa has independent complaints authorities
lix
Page | 76
media. The appointment and functioning of the proposed body may be done in tune
with various foreign models that establish similar bodies. lxi Moreover, the Supreme
Court, in Prakash Singh and Ors v. Union of India and Ors.lxiihas also expressed a
need to set up a Commission to deal with complaints against the police department.
However, there has not been any action in that regard.
Therefore, the proposed Body has already been in the mind of the judiciary and it is
just a matter of time that we have such a Body in place. Media Reporting, may create
a lasting image on the victims image; however if such a body is established, the
victim can prevent such a situation at an earlier stage. Prevention and not
punishment must be the rule of the thumb. This will not only ensure greater
accountability but will also act as an efficient system of checks and balances on the
police departments.
CONCLUSION
The parliamentarians have consistently infused the Indian democracy with
libertarian values. The laws today have embodied balances sovereign control with
ideals of transparency, individual liberty and good governance. The Consultative
Committee on Information and Broadcasting is trying its best to incorporate the
United Kingdoms Leveson Report. The Report stems from the News of the World
phone hacking scandal that riddled Britain in 2012. lxiii The report provides for strict
regulations governing the media vis--vis the police and politicians.
The Indian media faces issues like paid news, politically motivated news channels
and media trials. The people of this country deserve to know the truth. A well
informed society is one that is aware of both sides of the coin. Although, a sound
opinion can only be framed when encountered with a marketplace of ideas such
opinions cannot violate an individuals privacy. Privacy must always be placed at a
higher pedestal that the satisfaction of the public at large. It is opined that a
progressive society is one that weighs one mans pain over a millions pleasure. The
only justification for curbing the right to express is the fear of confrontation with the
Page | 77
truth. Nevertheless, all truth cannot be placed before the public for scrutiny. This is
why privacy must be respected and shielded.
REFERENCES
i
The freedom of speech and expression has taken its roots from the evolution of democracies all over
the world. The United States is a fine example of how the freedom of speech and expression, was the
first amendment that came to the minds of the drafters of the Bill of Rights. Therefore, democracy has
often been the litmus test to identify the legitimacy of a statement made violating the first
amendment. See Purcell v. Ireland App. No. 15404/89, (1991) 70 DR 262.
ii
See MILTON J AREOPAGITICA: A SPEECH FOR THE LIBERTY OF UNLISENCED PRINTING (1644) in Prose
iv
See T Scanlon, Freedom Of Expression And Categories Of Expression 40 U. PITTSBURGH L. REv. 519
(1979).
vi
ANDREW NICOLE, GALVIN MILLAR & ANDREW SHARLAND, MEDIA LAW & HUMAN RIGHTS 3 (2nd edn.
There is a need to ensure that a democracy does not compromise the personal rights of citizens at
the cost of protecting the freedom of press. Nonetheless, the importance of the press cannot be
undermined. Just like the American fourth estate operates as a de facto quasi-official fourth branch of
government, its institutions no less important as compared to the Indian media. The citizens have the
right to be informed about the affairs of the state; they have the right to know the truth. See DOUGLASS
CATER, THE FOURTH BRANCH OF GOVERNMENT 13 (Boston: Houghton Mifflin, 1959).
viii
Warren Francke , The Evolving Watchdog: The Media's Role in Government Ethics , 111, 109-121
Annals of the American Academy of Political and Social Science, Vol. 537, Ethics in American Public
Service.
See Peter. L. Fletcher & Edward. L. Reuben, Privacy, Publicity and the Portrayal of Real People by the
ix
V. Held, The Media and Political Violence, 197, 187-202 THE JOURNAL OF ETHICS, Vol. 1, No. 2 (1997).
xi
In re Harijai Singh, 1987 Cri LJ 58 at 61 ; See also Indian Express newspapers Bombay v. Union of
Reliance Petrochemicals Ltd. v. Proprietors of Indian Express Newspapers Pvt. Ltd. Bombay , AIR
1989 SC 190.
Page | 78
xiii
DR. AWASTHI & KATARIA, LAW RELATING TO PROTECTION OF HUMAN RIGHTS 582-583 (2nd ed., Orient
385 U.S. 375; See Sushil Choudhury v. State of Tripura, AIR 1998 Gau 28 at 32; Indian Express
newspapers Bombay v. Union of India, AIR 1996 SC 515: (1985) 1 SCC 641.
xv
xvi
Warren & Brandeis, The Right to Privacy, 4 HARV. L. REV. 193 (1890).
xvii
Sonal Makhija, Privacy and Media Law (Jul. 26, 2011) available at cis-india.org/internet-
xviii
xx
Id.
xxi
Draft Bill on the Right to Privacy, Cabinet Secretariat, Rashtrapati Bhawan, No. 501/2/6/2011-CA.V.
xxii
Id..
xxiii
xxiv
The Right to Privacy Bill, 2011, Statement of Reasons and Objectives: A Bill to provide for the
right to privacy to citizens of India and regulate the collection, maintenance, use, and dissemination of
their personal information and provide for penal action for violation of such right and for matters
connected therewith or incidental thereto.
Glenn Greenwald & Shobhan Saxena, India Among top Targets of Spying by NSA , (Sep. 23, 2013)
xxv
available
at
http://www.thehindu.com/news/national/india-among-top-targets-of-spying-by-
xxvii
xxviii
Sunanda
Pushkar,
xxix
caseof-indian-realism (last visited Mar. 11, 2013); Shree Paradkar, Aarushi Talwar murder: Inside story
of
Indias
most
controversial
trial,
(Jan
26,
2013)
available
at:
http://www.thestar.com/news/world/2013/01/26/aarushi_talwar_murder_a_look_at_one_of_indias_most_n
otorious_cases.html (last visited Mar. 11, 2013).
xxx
State of U.P v. Rajesh Talwar and Anr. Sessions Trial No. 477/ 2012.
xxxi
Id.
xxxii
Page | 79
xxxiii
available
at
http://content.met.police.uk/cs/Satellite?blobcol=urldata&blobheadername1=ContentvType&blobheade
rname2=ContentDisposition&blobheadervalue1=application%2Fpdf&blobheadervalue2=inline%3B+fil
ename%3D%22944%2F933%2FFINAL+REPORT++ALL.pdf%22&blobkey=id&blobtable=MungoBlobs&
blobwhere=1283540988465&ssbinary=true (last visited on 26, Feb. 2013).
Id.
xxxiv
Melanie Jo Triebel, The Relationship Between the Media & the Police, available at:
xxxv
Larry
Jones,
Police and Media Relations: How to Bridge the Gap, available at:
xxxviii
Peoples Union of Civil Liberties v. Union of India Civil W.P. No. 196/2004
xxxix
Tharron
Mclvor,
Media
and
the
Police:
Legal
Interactions,
available
www.humanrightsinitiative.org/programs/aj/police/papers/media_police_legal_interraction.pdf
at
(last
xli
xlii
Ms. Bharathi Yadav v. State of U.P. Crl. M. C. No. 6230/ 2006; Crl. M. No. 11312/ 2006.
xliii
xliv
xlv
xlvi
xlvii
xlviii
Universal Declaration of Human Rights, art.5(1)(b), Dec. 10, 1948; Cited in Martinez Montsant Joan
xlix
lii
Page | 80
See Belgium Privacy Act, 1992, 2:'Processing' shall mean any operation or set of operations that is
liii
performed upon personal data, whether or not by automatic means, such as collection, recording,
organisation, storage, adaptation, alteration, retrieval, consultation, use, disclosure by transmission,
dissemination or otherwise making available, alignment, combination, as well as blocking, erasure or
destruction of personal data.
liv
Consolidated text of the Belgian law of 8 December 1992 on Privacy Protection in relation to the
Processing of Personal Data as modified by the law of 11 December 1998 implementing Directive
95/46/EC1 and the law of 26 February 2003 (See alsoBelgian State Gazette, 3 February 1999, 3049.
lv
Human Rights Watch, Broken System: Dysfunction, Abuse, and Impunity in the Indian Police,(4 Aug,
lvii
This includes within its purview, both Central and State Acts in relation to Police Reforms.
lviii
The IPCC is one such body that has access to any kind of information that is held by the police in its
premisis. Complainants have the right to file complaints both in their own personal capacity or they
can be represented by a third party. Their complaints will be addressed by the Constituting Body of the
IPCC, based on inquiries, examinations and investigation of the police official against whom the
complaint has been registered. The complainant is also bestowed with the right to take the case on an
appeal to a higher judicial authority. This helps encourage a greater level of loyalty on behalf of the
police towards the public. Not only can the victim file a case against the police under nonperformance of duties under the various police Acts, but also under the proposed Draft Bill on Privacy.
Therefore, introducing a similar system in India will go a great deal in protecting innocent citizens
from the human right violations from the police. See Maja Daruwala, G.P Joshi & MandeepTiwana ,
Police Act, 1861: Why we need to replace it?, Police Reforms too Important to Neglect too Urgent to
Delay, (Commonwealth Human Rights Initiative, 2005).
lix
These authorities are called the Independent Complaints Directorate, which keeps a check on the
activities of the police which is prohibited by the police regulations such as code of conduct or neglect
of duties The body, also helps to provide a remedy for an individual whose privacy has been violated
by means of unauthorised delivery of information from the media to the police. Thus the police
department will remain vigilant at all times as the public can act as a watch dog in order to promote
proper police conduct in accordance with the principles of the Constitution. See Supra, note 38; See
also, Independent Police Investigative Directorate, Republic of South Africa, Vision and Mission,
available at: http://www.ipid.gov.za/about%20us/vision_mission.asp (last visited on Mar, 7, 2013 )
Page | 81
lx
Such a recommendation was also made by the United Nations Refugee Agency, wherein a report
required that India set up independent bodies that register complaints against the police officials. It
also provides, that in order to reduce impunity, the central and state government should bolster the
capacity of the national and state human rights commissions to undertake independent investigations,
including the number of investigative staff. SeeHuman Rights Watch, Broken System: Dysfunction,
Abuse, and Impunity in the Indian Police, 14 (4 Aug, 2009), 1-56432-518-0, available at:
http://www.unhcr.org/refworld/docid/4a793f692.html (last visited 13 March 2013).
lxi
For instance the Police Act in British Columbia provides for the appointment of a Police Complaint
Commissioner to oversee the handling of complaints against the police. S/he is appointed on the
unanimous recommendation of a special committee of the Legislative Assembly. The police
complaint commissioner cannot be a Member of the Legislative Assembly but is considered to be an
officer of the Legislature, who holds office for a term of six years. S/he can appoint staff to assist in
performing the duties of the office and must report annually to the Speaker of the Legislative
Assembly on the work of her/his office. ( The Police Act, 1996, Part 9, 47 also available at:
http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96367_01).
lxii
lxiii
Prashant Jha, India looks for lessons from Leveson report on media , ( Jul. 14, 2013) The Hindu,
National.
Page | 82
them just disappear without any of its knowledge. Within protected areas also, the
lack of a focused conservation strategy could cause a depletion of this valuable
resource. Along with this, is an increased threat to the availability of medical plants.
Over 95 per cent of the medicinal plants used by the Indian pharmaceutical industry
are today collected from the wild. iv Over 70 per cent of the plant collections involve
the use of roots, bark, wood, stem and in some areas the whole plant, leading to
destructive harvesting. If not carefully monitored, this practice could lead to the
depletion of genetic stocks and ultimately to the diversity of medicinal plants. It will
also lead to the loss of biodiversity, deprivation of traditional knowledge and
threatening of the survival of local communities.
Page | 84
getting diluted day by day. It is instead helping monopolisation of new knowledge for
exploiting mankind.
Almost 80 per cent of the 4,896 references to individual plant based medicinal
patents in the United States Patents Office that year related to just seven medicinal
plants of Indian origin. Three years later, there were almost 15,000 patents on such
medicines spread over the United States, UK, and other registers of patent offices. In
2005 this number had grown to 35,000, which clearly demonstrates the interest of
developed world in the knowledge of the developing countries. v There were cases in
the past which were the best epitome of exploitation, ignorance and negligence
buoying up on the Patent laws of the developing countries like India.
CASES OF BIO-PIRACY
In Turmeric case, the US patent and Trademark office granted a patent on the use of
wound healing which was successfully challenged by India on the grounds of prior
art and that this use of turmeric was well known and nothing new had been
invented. The document relating to this traditional knowledge of India were
unknown to the US patent and Trademark Office. When they came to know about
this, patent was revoked.
Neem case- Neem extracts can be used against hundreds of pests and fungal diseases
that attack food crops; the oil extracted from its seeds can be used to cure cold and
flu; and mixed in soap, it provides relief from malaria, skin diseases and even
meningitis. In 1994, European Patent Office (EPO) granted a patent vi to the US
Corporation W.R. Grace Company and US Department of Agriculture for a method
for controlling fungi on plants by the aid of hydrophobic extracted Neem oil . In
1995, a group of international NGOs and representatives of Indian farmers filed legal
opposition against the patent. They submitted evidence that the fungicidal effect of
extracts of Neem seeds had been known and used for centuries in Indian agriculture
to protect crops, and therefore, were unpatentable. In 1999, the EPO determined that
Page | 85
according to the evidence all features of the present claim were disclosed to the
public prior to the patent application and the patent was not considered to involve an
inventive step. The patent granted on was Neem was revoked by the EPO in May
2000.
Basmati Rice Case: Rice Tec. Inc. had applied for registration of a mark Texmati
before the UK Trade Mark Registry. Agricultural and Processed Food Exports
Development Authority (APEDA) successfully opposed it. One of the documents
relied upon by Rice Tec as evidence in support of the registration of the said mark
was the US Patent 5,663,484 granted by US Patent Office to Rice Tec on September 2,
1997. This US utility patent was unique in a way to claim a rice plant having
characteristics similar to the traditional Indian Basmati Rice. It was challenged and
later revoked by USPTO. (Subbiah).
On one hand, Patent on traditional knowledge is not easily accessible whereas on the
other hand, if modified so as to be distinguishable, can be patented. The need of the
hour is to grant patents in a way that serves public interest. Our traditional
knowledge is the result of hard work of our ancestors. It should be used for the
benefit of humanity. But in this competitive world of patents, it needs to be protected.
The grant of patents on non-patentable knowledge which is either a part of the
traditional knowledge of the developing world or a minor variation thereof has been
causing great concern to the developing world India was the first to raise the
fundamental issue at the World Intellectual Property Rights Organization (WIPO) as
to why the traditional knowledge-based system should not be treated at par with the
industry-based system.
The problem is deep and systemic. And it calls for a systemic change, not a case by
case challenge. If a patent system which is supposed to reward inventiveness and
creativity systematically rewards piracy, if a patent system fails to honestly apply
criteria of novelty and non-obviousness in the granting of patents related to
indigenous knowledge then the system is flawed, and it needs to be changed.
Page | 86
ESSENTIALS OF PATENT
Patent is ground in favour of the inventor which confers the patent holder the right
to use his invention to the exclusive of all others. vii Patent grants the inventor a
privilege of making, manufacturing, selling or using the invention and also a right to
authorise other to do so.
Patent is only granted to those inventions which are new and useful.This is to say that
it must have novelty and utility.viiiProducing advantageous results will be a sufficient
element of novelty to support the patent. It is essential for the validity of the patent
that it must be inventors own discovery.ix This is the basic principle which has to be
followed while granting the patent to the inventor. The claim to patent can be
challenged on different grounds which are given the Indian Patent Act, 1970. For the
purpose of the act there are some the inventions which are not patentable. The
controller will not grant patent if invention is, an invention which is frivolous, an
invention intended to be used contrary to law or morality or injurious to public
health, a mere discovery of scientific principle, a substance obtained from mere
admixture, etc. All these invention are not liable to be granted as patent. x
Apart from the above list of non-patentable invention the patent can be challenged
on other grounds too. These grounds are also given in the Indian Patent Act, 1970.
These grounds for opposition are xi : 1) That the person claiming the patent has
wrongly obtained the invention or the right to make the application for patent; 2)
That the invention for which patent claimed is already published; 3) That there is
already a prior claim in the complete specification earlier filed; 4) That there was
prior knowledge of the claim made in the complete specification from the date
anterior to the date of its priority; 5) That the invention suffers from obviousness and
lacks inventive step; etc. All these grounds are listed in the section 25 of the Indian
Patent Act, 1970.
Page | 87
These are the important essential of the patent which has to be looked into before the
patent is granted to inventor. The principle of novelty and utility is the most
important essential on which the patent the claim for the patent is tested. Further
opposition to the claim is based on this principle only. As we can see that, the prior
knowledge is a ground for challenge and claim to patent can be rejected if it is
proved that the invention is made based on prior knowledge. The traditional
knowledge is part of this prior knowledge and any claim to the invention of new
medicine should be challenged on the ground that it from the part of traditional and
hence is not novel. The use of medicinal plants in India is also a part of our
traditional knowledge.
signatories. In the specific case of patents, the TRIPS agreement have wide-ranging
implications. It provides for instance that patent must be available for invention,
whether processes or products. Plant varieties are given protection by patent or by an
effective alternative system. Article 27.3.b of the TRIPS agreement provides that, the
member states can choose to provide plant variety protection through sui generis
system.xiiiThe other important characteristic of the agreement is that, the EMR for
five years or until a product patent is granted or rejected should be given to the
applicant.
India was not up for the TRIPS agreement from the beginning; it has opposed the
agreement for very long time. Strong international pressure was being put on India
to accept the TRIPS agreement and to modify the patent law. In the event India
signed the GATT 1994 Agreement and become member of WTO. The ratification of
TRIPS was made compulsory to India and hence the changes that came to the Indian
patent law werexiv:
1. The system for filling and handling product patent application for
pharmaceutical and agriculture chemical product and grating the EMR.
2. The elimination of any restriction on granting of product patents.
3. The elimination of restriction on patentable subject matter such as method of
agriculture and horticulture.
4. The lengthening of patent duration to 20 years, from the current 14 years and
7 years for food and pharmaceuticals.
5. Restriction and modification concerning compulsory licensing, license of right
and the rights of revocation.
6. The adoption of legal regime for the protection of plant varieties.
These changes were made in the Indian Patent Act and therefore have resulted in
many controversies as discussed above.
Page | 89
The result of these changes are that, the protection to the traditional knowledge is
limited. The traditional knowledge of medicinal plants are now not protected to the
extend they were before. The provision for product patent has made it difficult for
indigenous people to protect their traditional knowledge. It is in the nature of
chemical products that their composition can be easily known and they can then be
made through alternative processes. Any company that makes a drug developed and
patented by somebody else but uses another process avoids the bulk of the
development costs and thus able to produce and sell it at a low cost. This is how the
Indian pharmaceutical Industries were working. Now that the product patent is
introduced the Indian industries has to bear high development cost for the
production of drugs. One of the major provisions introduced was regarding grant of
compulsory licence, which means that Indian manufacturers will be able to
manufacture and export patented medicines to countries, which have insufficient or
no manufacturing capacity. The introduction of a provision to enable grant of
compulsory licence for export of medicines to the countries that have insufficient or
no manufacturing capacity to meet emergent public health situations, is in
accordance with the Doha Declarations on Trade Related Intellectual Property rights
(TRIPs) and public health.
UPOV is one other international law which had its effect on the patent law in India..
The mission of UPOV is to provide and promote an effective system of plant variety
protection, with the aim of encouraging the development of new varieties of plants,
for the benefit of society. Most countries and intergovernmental organizations which
have introduced a plant variety protection (PVP) system have chosen to base their
system on the UPOV Convention in order to provide an effective, internationally
recognized system. TRIPS has taken this into account for introducing the provision
for protection of plant varieties.
TRIPS agreement has not affected the Patent Law alone. It also have change the
Biodiversity law in India. The Convention of Biodiversity on one hand provide for
Page | 90
SUGGESTIONS
Now, the time has come to compile and document available knowledge on our
valuable plant resources and to prove their utility scientifically through detailed
phytochemical, biological and pharmacological investigations at selected centres in
different regions of the country. Following are the few suggestions that can help in
improving the present scenario regarding the patent of medicinal plants:
1. Proper documentation of Traditional Knowledge.
2. Registration and innovation of Patent System.
Page | 91
3. Removal of Article 27.3 from TRIPS, like, retracting the demand for patents
on life form.
4. Let it be the choice of countries to draft their own Sui generis legislation(s) for
plant varieties that are in compliance with UPOV.
5. Apply Article 29 of TRIPS which requires disclosure in the case of patent
applications, to genetic resources and traditional knowledge used in invention
for which IPRs are claimed.
6. Increase the scope of Art. 23 of TRIPS to strengthen protection of
geographical indications.
7. Heavy penalty for those parties who exploit traditional knowledge in disguise
of modification.
8. There is no control on the exploitation of medicinal plants from outside
protected areas. Most species banned for export are thus because of their
endangered status and not their medicinal value. A national level policy is
required if any consolidated effort towards the conservation of medicinal
plants is foreseen.
It is in India's interest to implement our national biodiversity legislation before
granting EMRs or changing the Indian Patent Act. The determination and will to
defend our national interest and our public interest and protect our innovation
should be stronger than the determination and will to defend US interest and protect
US biopiracy. This is a real test of our freedom and sovereignty. We need to do a
rapid stock-taking of the scale and extent of our
Bio-diversity-based economy which accounts for two-thirds of our productive
economy is invisible because it is the economy of people our centralised planning
has rendered invisible. We need to show how much the potential loss to India is in
the form of both global markets and domestic markets due to biopiracy by countries
like the US. We need to go through this exercise to protect our sovereignty and make
our rightful claims with trading partners. The exercise of the potential loss due to
Page | 92
biopiracy also needs to be done to avoid unnecessary and illegitimate trade action by
the US due to the TRIPs dispute ruling
CONCLUSION
India has successfully built edifice of its relationship with Patent laws through the
prism of TRIPs and other international conventions. The plight however is the
growing influence of the developed nations over the developing ones. In such case,
protection of medicinal plants has become extremely important. TRIPS stance on its
standards required for the protection of Intellectual Property Rights and contentious
Article 27.3, is not so clear. Notwithstanding this, for the protection of Intellectual
Property Rights India realizes the need of protecting her traditional knowledge from
patent bio-piracy. There have been steps taken to ameliorate the present stance of
India on protection of medicinal plants, which are still in process. India, inter alia, has
been successful in preparing a proper exercise which is easy navigable. It is a
computerized database regarding documentation of Traditional Knowledge created
by the Department of Ayurveda, Yoga & Naturopathy, Unani, Siddha and
Homoeopathy-(AYUSH), erstwhile Department of Indian System of Medicine and
Homoeopathy (ISM&H) constituting an inter-disciplinary Task Force, for creating an
approach paper on establishing a Traditional Knowledge Digital Library (TKDL).
This is one major assurance to secure medicinal plants from known patents.
Furthermore, provisions in patents ( second amendment) Bill that makes disclosures
in the patent application mandatory, for the source of biological resource has got the
entire
picture
subject
to
transparency.
Work
is
going
on
in
various
piracy agitates the entire country. There is an urgent need to have few amendments
in international conventions that govern patent laws on medicinal plants and
implement them as soon as possible. Protecting these resources and integrating
them.
REFERENCES
N.K.Dubey and Pramila Tripathi ,Global Promotion of Herbal Medicine: Indias Opposition
Carlos M. Correa, Protection and Promotion of Traditional Medicine in Developing Countries
iii
Foundation for the Revitalisation of Local Health Traditions or FRLHT, 1997
iv
FRLHT, 1997
v
2000, CSIR(Council of Scientific and Industrial Research)
vi
(EPO patent No.436257)
vii
Dr. V. Manickavasagam, Intellectual Property Rights and the Impact of TRIPS agreement with
Reference to Indian Patent Law, Report Submitted to Planning Commission( SER Division) New Delhi;
Philippe Curllet, Revision of the TRIPS Agreement Concerning protection of Plant Vareities: Lessons
from India concerning the development of a SUI generis system, 2 Journal of World intellectual
Property 617 ( 1999).
viii
ibid
ix
ibid
x
Maitreyi Das, Impact of TRIPS Agreement on Competition in Pharmaceutical sector in India, Report
submitted to Competition Commission of India New Delhi (2013)
xi
Indian Patent Act 25 (1970).
xii
Supra at i
xiii
id
xiv
id
i
ii
Page | 94
Page | 95
unintended health consequences of "non-lethal" weapons are not yet well understood.
NLWs cause debilitating or permanent effects such as blindness or paralysis, longterm lethal consequences, or other unnecessary suffering. So, the labels "lethal" and
"nonlethal" do not accurately reflect how weapons ought to be examined from an
ethical perspective.
For a state that is party to Additional Protocol I of 1977, determining the legality of
new weapons is a treaty obligation pursuant to Article 36 of the Protocol. Indeed, it is
in each states interest to assess the lawfulness of its new weapons in order to ensure
that it is able to comply with its international legal obligations during armed
conflicts and other situations of violence. The ICRC is aware of only a handful of
states that have such procedures in place, one of which is not party to Additional
Protocol I.
In some nations there are no consistent and coherent standards applicable to all
policing forces across the nations. The legal framework for the testing and approval
for use of new forms of less than lethal weapons by police agencies is unclear. The
difference in the interpretation of conventions also imposes ambiguities in the
application of these weapons. The principles of distinction and proportionality, the
principle of unnecessary suffering, rules governing hors de combat, and the so-called
Martens clause are constantly violated. International humanitarian concerns about
how NLWs might encourage military forces to violate the IHL principle of hors de
combat are also discussed in detail.
INTRODUCTION
Ethics and international law have since the late nineteenth century been losing a
running battle with technological developments that have vastly increased the
killing power of military forces. In addition, ethnic hatred and ineffective or nonexistent governments have fueled the ferocious fires of civil war in many parts of the
developing world, deepening the crisis for ethical and legal restraints on war.
Page | 96
Military forces from various nations ordered into war-torn societies to keep the peace
or distribute humanitarian aid often find themselves confronted with non-military
functions, such as crowd control, that seem difficult to fulfill with traditional military
weapons.
Any use of a lethal or non-lethal weapon in a combat situation is subject to the basic
principles and provisions of international law. These include the principles of
distinction and proportionality, the principle of unnecessary suffering, rules
governing hors de combat, and the so-called Martens clause. Embedded in these
principles and provisions is the idea of protection for civilians and protection for
combatants.
Parties to an armed conflict are limited in their choice of weapons, means and
methods of warfare by the rules of international humanitarian law (IHL) governing
the conduct of hostilities. Relevant rules include the prohibition on using means and
methods of warfare of a nature to cause superfluous injury or unnecessary suffering
and the prohibition on using means of warfare that are incapable of distinguishing
between civilians or civilian objects and military targets, i which are the cardinal
rules of IHL applying to weapons. ii In addition, particular treaties and customary
rules impose specific prohibitions or limitations on the use of certain weapons, for
example anti-personnel mines and blinding laser weapons.
For a state that is party to Additional Protocol I of 1977, determining the legality of
new weapons is a treaty obligation pursuant to Article 36 of the Protocol, which
requires each state to determine whether the employment of a weapon, means or
method of warfare that it studies, develops, acquires or adopts would, in some or all
circumstances, be prohibited by international law applicable to the state. But it also
makes good policy sense for all states, regardless of whether or not they are party to
the Protocol, to carry out legal reviews of new weapons. Indeed, it is in each states
interest to assess the lawfulness of its new weapons in order to ensure that it is able to
Page | 97
comply with its international legal obligations during armed conflicts and situations
of violence.
Page | 98
RECENT INSTANCES
a. An association of lawyers in Indian administered Kashmir will facilitate the
process of filing review petition in a court against its judgement which had
legalized the use of pepper gas and pellet bombs against protestors in the
disputed state.iv
b. Amnesty International continues to be concerned by the use of less-than-lethal
weapons, particularly Conducted Energy Devices (CEDs) such as TASERS.
While some police forces have adopted stricter standards that limit the use of
such devices to situations where there is a clear and serious imminent threat
to life, most do not. Amnesty International has frequently expressed concern
that the use of these weapons may, in some circumstances, be tantamount to
torture or ill-treatment.This Committee has also expressed concern that the
use of such weapons may constitute a form of torture. v There are no consistent
and coherent standards applicable to all policing forces across the country, as
some are subject to federal government jurisdiction and others to provincial
and territorial governments. Guidelines developed by the federal government
in October 2010 are not binding and do not adopt a threshold of harm
standard which would justify the use of a TASER. Amnesty International has
suggested that the Federal Guidelines should be amended to require that
CEDs will only be used in situations involving an imminent threat of death
or serious (potentially life threatening) injury which cannot be contained by
less extreme options. The legal framework for the testing and approval for
use of new forms of less than lethal by police agencies in Canada, such as
sonic devices, is unclear. Some of these weapons pose a potential risk of
resulting in torture or ill-treatment when used. Just as their lethal
counterparts sometimes fail to kill, non-lethal weapons can sometimes be
deadly. The description, therefore, applies to the intent rather than the effect. vi
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c. The ICRC reported that the destruction and disruption of electricity caused
Iraqi civilians great hardships in forms of disease and other adverse health
consequences.vii Calling a weapon "non-lethal" does not remove its potential
consequences from scrutiny under IHL.
d. The Chechen assault on the Nord-Ost Theatre in Moscow, and the crisis
involving approximately 830 hostages, ended when Russian security forces
pumped an incapacitating chemical, believed to be a derivative of the opiate
fentanyl, into the theatre as a prelude to storming the building. Russian forces
killed all the terrorists and rescued hundreds of hostages. The fentanyl,
however, killed approximately 130 hostages a fatality rate of 16%, more
than twice the fatality rate of lethal chemical weapons used on World War I
battlefields. viii The use of an incapacitating chemical to end the Moscow
hostage crisis hit the debate about NLWs and international law like a
thunderbolt.
POTENTIAL DRAWBACKS
The advantages outlined above potentially offer significant enhancements to our
ability to bring about desired political outcomes via
employment of
Page | 100
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As noted before, the term "nonlethal" is not an accurate description of these weapons
because they can be lethal and they include anti-materiel weapons. Further, military
commanders looking at the battlefields of the future may want to combine
"nonlethal" and "lethal" weapons to achieve more effective destruction of the enemy.
The existence of true "non-lethal" weapons would not alter the way military forces
approach their objectives. It is unlikely that military commanders would equip their
forces only with "non-lethal" weapons. Use of truly "non-lethal" weapons may actually
increase the effectiveness and lethality of traditional weapons during armed conflict.
fatalities are caused by smart weapons. In addition, military forces often attack or
destroy facilities, such as power plants, that are important to the health and wellbeing of civilian populations. ' xiii
In some situations, "non-lethal" weapons pose familiar problems. During the Persian
Gulf War, allied forces used "non-lethal" anti-materiel weapons to disrupt the Iraqi
electricity infrastructure. xiv
The ICRC reported that the destruction and disruption of electricity caused Iraqi
civilians great hardships in forms of disease and other adverse health consequences. xv
Calling a weapon "non-lethal" does not remove its potential consequences from
scrutiny under IHL.
Equally important is the possibility that the development of "nonlethal" weapons will
encourage military forces to attack civilians and civilian targets more rather than
less. Military forces might perceive that attacking civilians and civilian targets with
"non-lethal" weapons is acceptable because the intent is to incapacitate or demoralize
rather than kill. In some contexts, incapacitating or demoralizing civilians might
make the use of "lethal" weapons against opposing military forces easier.
Behind the IHL prohibition is the principle that military forces must discriminate
between military and civilian targets.' xvi Important to the IHL analysis will be
whether "non-lethal" weapons can only be, or are being, used indiscriminately. A
"non-lethal" weapon that cannot be used in a discriminate way would cause IHL
concerns. Thus, if an acoustic weapon intended to incapacitate military forces cannot
be used without also incapacitating civilians, such a "non-lethal" weapon cannot
satisfy IHL. But one can easily see that people wanting to use the "non-lethal" weapon
would argue that its indiscriminate use does not violate IHL because the intent is not
to kill and the civilians are only temporarily incapacitated. In other words, the
indiscriminate use of a "non-lethal" weapon causes acceptable collateral damage to
civilians.
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IHL prohibits military forces from attacking combatants who are incapacitated or
disarmed and no longer present a military threat (hors de combat).'xviiThis aspect of
IHL is clearly relevant to the use of "non-lethal" weapons on the battlefield,'2" and
"non-lethal" weapons raise a number of questions in this regard.
First, it is not clear how a soldier will be able to determine in the heat of the battle
whether an enemy combatant is hors de combat as a result of the use of a "non-lethal"
weapon. How much incapacitation is necessary to render a combatant hors de
combat? Just as a soldier wounded by a "lethal" weapon may still pose a military
threat to his enemy, an incapacitated soldier may also constitute a threat. Perhaps
this observation suggests that the identification of a combatant hors de combat is
difficult regardless whether "lethal" or "non-lethal" weapons are used, and that "nonlethal" weapons do not complicate this already difficult task. Much would depend, of
course, on the particular physical effects of a "non-lethal" weapon, so it is difficult to
speculate much. But the easier it is to recognize incapacitation the stronger will be
the physical effect of the "non-lethal" weapon, perhaps raising other questions under.
IHL protections for combatants hors de combat have not been widely respected in
twentieth century wars. Military forces in all likelihood will see incapacitation
through "non-lethal" weapons as a means to maximize the impact of "lethal" force.
The tactic might be to hit enemy troops first with "non-lethals" and to follow up this
attack with "lethal" force. This combination tactic might maximize battle impact on
the enemy while reducing casualties for the attacking side.
remains important for the integrity of IHL to apply the superfluous injury or
unnecessary suffering principle to "non-lethal" weapons because the assumption of
temporary incapacitation may not be warranted. One concern for this principle of
IHL is that the health effects of many potential "non-lethal" weapons are, as
mentioned earlier, not known. The superfluous injury/unnecessary suffering
principle should guide development of "non-lethal" weapons to ensure that the
physical effects of the weapons are not severe or permanent. The ICRC advocates
using this objective approach to analyze all newweapons, including "non-lethal"
weapons.
The categorization of weapons as lethal and non lethal is not correct as it leaves some
scope for wrongful use of weapons to an extent by which fatality can be caused and
so the categorization of weapons shall be done as causing superfluous injury,
potentially causing superfluous injury and not causing superfluous injury.
CONCLUSION
The feel-good term "non-lethal" masks the extent to which these weapons create
significant concerns for arms control, international law on the use of force,
international humanitarian law, and other areas of international law. The need to
review and scrutinize "non-lethal" weapons under international law is manifest, and it
can never be taken for granted that the development or uses of non-lethal weapons
are legitimate under international law.
Establishing national mechanisms to review the legality of new weapons is especially
relevant and urgent in view of emerging new weapons technologies such as directed
energy, incapacitants, behavior change agents, acoustics and nanotechnology, to
name but a few. xviii
REFERENCES
i
See, e.g., J.-M. Henckaerts and L. Doswald-Beck (eds.), Customary International Humanitarian Law,
In its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, the International
Court
of Justice referred to these basic IHL rules as cardinal principles: 8 July 1996, [1996] ICJ Rep., pg.
257,
178.
iii
See Final Goal 2.5 of the Agenda for Humanitarian Action adopted by the 28th International
Conference
of the Red Cross and Red Crescent (2003).
iv
See
http://www.authintmail.com/article/kashmir/bar-association-file-review-petition-against-non-
lethal-weapons-use-judgment
v
CANADA - Briefing the UN Committee Against Torture, Amnesty International, 48 th Session, 2012,
pg. 30
vi
NON-LETHAL WEAPONS: SETTING OUR PHASERS ON STUN?, Potential Strategic Blessings and
Curses of Non-Lethal Weapons on the Battlefield by Erik L. Nutley, Lieutenant Colonel, USAF,
August 2003, Occasional Paper No. 34, Center for Strategy and Technology Air War College Air
University Maxwell Air Force Base, Alabama, pg.2
vii
Page | 106
viii
Alexander Kelle, Science, technology and the CBW control regimes, Disarmament Forum, 2005, p.
8, p. 10. For a report on health problems suff ered by the hostage survivors two years later, see Anna
Rudnitskaya, Nord-Ost tragedy goes on, Th e Moscow News, Issue No. 41, 2004, at
<http://english.mn.ru/ english/issue.php?2004-41-2>
ix
DOD Policy Directive (DODPD) 3000.3, Policy for Non-lethal Weapons, 9 July 1996, 3.1.
C. T. Clyne, Andersonville and Other Civil War Prisons, North and South, available from
http://users.aol.com/cinticwrt/anders.html
xi
Carl Von Clausewitz, On War, trans. Michael Howard and Peter Paret (Princeton N. J.: Princeton
David P. Fidler, The International Legal Implications of Non Lethal Weapons, Indiana University
See Geneva Protocol I art. 54, para. 2 ("It is prohibited to attack, destroy, remove or render useless
objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas
for the production of foodstuffs, crops, livestock, drinking water installations and supplies and
irrigation works, for the specific purpose of denying them ... to the civilian population or to the adverse
Party, whatever the motive .... ").
xiv
Similar weapons were available to NATO forces in the Kosovo air campaign. See Stephen S.
Rosenfeld, 'Turning Off the Lights in Belgrade,' WASH. POST, May 7, 1999, at A39 (reporting on the
U.S. Air Force's unveiling of "a secret 'blackout' bomb that evidently short-circuits the equipment but
does not actually physically destroy it. This is what is meant by threats to 'turn
off the lights in Belgrade.'").
xv
xvi
See Geneva Protocol I, art. 48 ("In order to ensure respect for and protection of the civilian
population and civilian objects, the Parties to the conflict shall at all times distinguish between the
civilian population and combatants and between civilian objects and military objectives and
accordingly shall direct their operations only against military objectives.").
xvii
See, e.g., Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in
Armed Forces in the Field, Aug. 12, 1949, art. 3(1), 6 U.S.T. 3114, 3116, 75 U.N.T.S. 31, 32
xviii
See, e.g., D. P. Fidler, The meaning of Moscow: Non-lethal weapons and international law in the
early 21st century, International Review of the Red Cross, Vol. 87, no. 859, 2005, p. 525
Page | 107
it work. The central bank must be trusted not to debase the currency, but the history
of fiat currencies is full of breaches of that trust. Banks must be trusted to hold our
money and transfer it electronically, but they lend it out in waves of credit bubbles
with barely a fraction in reserve. We have to trust them with our privacy, trust them
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not to let identity thieves drain our accounts. Their massive overhead costs make
micropayments impossible.viii
Thus, Nakamotos ideologies in creating Bitcoins would seem to be entirely political.
Supporting this argument is the fact that he introduced the currency just a few
months after the collapse of the global banking sector. ix His Bitcoin software would
allow its users to send money over the internet directly to each other without an
intermediary, and no outside party could create Bitcoins, x entirely cutting out the
role of the central banks and governments in online transactions. As Nakamoto said,
everything is based on crypto proof instead of trust.xi Furthermore, unlike the banks
and governments which can print more money whenever they deem fit, the bots that
are currently creating Bitcoins are supposed to stop doing so in or around the year
2140 according to their programming itself. xii And unlike fiat currencies, whose value
is derived through regulation or law and underwritten by the state, Bitcoins derive
their value through the simple principles of supply and demand they have no
intrinsic value and no backing, and their value depends entirely on what people are
willing to trade for them. Nakamoto had created the first working cryptocurrency,
making it as different from the existing fiat currencies as possible. It was meant to be
an alternative to them, a new method of transaction, entirely free of government
control, and, perhaps a challenge to it. It was to challenge the governments, to make
people rethink the existing economic systems, to question their faith in it. And the
fear that Klabnik notes in his article, is a sign that it is succeeding.
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The former of the two issues, double spending, is usually where banks come in. They
keep a track of the transactions and balances of their customers, thus making sure
they only spend money they actually have unless theyre buying on credit,
obviously. This is referred to as a centralised currency system, since all of the
currency is monitored by a central agency. xiii Some centralised forms of virtual
currencies also exist, such as Facebook credits. These are also subject to similar
regulation, and are monitored by banks and governments. xiv The central authority
here makes controlling and monitoring customers and their transactions much
easier. For instance, in India, the KYC Norms set by the RBI require banks to
continuously monitor their customers transactions, keep an up-to-date record of their
identity, and take steps simply in case any of the transactions of a customer break
from his or her usual pattern of behaviour!xv
Nakamoto fixed the issue of double spending through a method of peer-to-peer
networking, using proof-of-work to record a public history of transactions. xvi Thus, the
very same network of nodes that keeps Bitcoins working also at the same time
maintains a public record of Bitcoin transactions, informing anyone who wishes to
check that Bitcoins have been moved from person A to person B. This record
counters double-spending, but protects the identity of the users, since the actual
identities of A and B are only know to the parties of the transaction, if even that. This
has been commented on in more detail later. This entirely removes the central
authority who was earlier a third party intermediary.
Simultaneously, this system also allows nodes to leave and connect with the Bitcoin
network as they wish, since they work with little or no coordination, and no
identification is required messages are not routed to any specific node, but to the
network as a whole, and work on a best effort basis. xvii Any nodes rejoining the
network accept the proof-of-work chain as proof of what happened while they were
gone, and start working again from the latest point. xviii
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The second issue with cryptocurrency, hacking, is one that any software must face.
But all the attempts that have as of yet been made to hack the coding of Bitcoins
themselves have been met with failure, xix though attempts at hacking Bitcoin
exchanges and wallets xx have been more successful. xxi According to Nakamoto, as
long as the total computing power of the honest nodes dedicated to keeping the
Bitcoin network up and running is more than the computing power of a group of
attackers, the network will remain unharmed. xxii Crucially, this does not mean that
the Bitcoin software will certainly remain unhackable forever. Just as Nakamotos
genius created the Bitcoin, it is quite possible that someone will someday successfully
crack the Bitcoin software.
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This part of the Bitcoin transaction is one of the most widely misinterpreted Bitcoin
transactions are not usually anonymous. It takes considerable intentional effort to
make a Bitcoin transaction entirely anonymous.xxv They are actually pseudonymous,
with the Bitcoin wallet address of the Bitcoin user function the same way as an email
address. The public ledger of Bitcoin transactions also maintains a record of every
users encrypted identity. xxvi Bitcoins are anonymous in the sense that the actual
identity might not directly be known, and that the governments do not have access to
a collection of data about the users of Bitcoin similar to what they would have with
users of fiat currencies. But even though they do not offer absolute anonymity, they
still offer an increased level of privacy as compared to fiat currencies and centralised
virtual currencies.
Thus, the main factors that characterise Bitcoins are their decentralisation, the peerto-peer nature of the transactions that excludes third parties, the public ledger of
transactions and users, and their pseudonymous nature, and all of these factors
culminate in taking away from the governments the power to regulate currencies.
Bitcoins have become a functional and viable alternative to the existing system of
currencies, essentially without costing their users anything, and at the same
removing them from government regulation. Furthermore, they cannot realistically
be outlawed or banned by any governments, since there is no essential regulator or
creator of Bitcoins that the governments can prosecute. xxvii The essence of Bitcoins,
then, is not in anonymity per se, but in the lack of central regulation of the currency.
It can even be said that the Bitcoin was actually designed to be regulated not by a
central agency, but by the public at large.
be regulated just not by the government. Methods of tracking Bitcoin users already
exist, and even though they might not be the easiest to execute, with reasonable
amounts of due diligence, anyone can figure who owns which wallet addresses. xxxiv
Furthermore, even though the supposed anonymity of Bitcoins is the part the
governments chose to focus on, that is not where Bitcoin and the philosophy behind
it begins and ends - they are actually gaining more and more recognition. As far as
public acceptance goes currently Bitcoin is still in its nascent stage, and so are the
other forms of cryptocurrencies like Dogecoins and Litecoins. While various
members of the society are jumping on to the bandwagon with abandon and absolute
belief, others are more cautious about it, and still more are outright sceptical. But this
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trend is changing, if at a slower pace than the proponents of Bitcoins would like. This
has actually resulted in Bitcoins becoming a forum for speculative investment, at the
same time creating a fourth category of people who are buying Bitcoins as an
investment, with the belief that they will gain value in the near future. xxxv And then
there is the infamous sixth category the criminals, who use Bitcoins for illicit trades
and money laundering.
The number of places you can spend your Bitcoins are also increasing at a steady
pace.xxxvi For example, with Bitcoins, you can currently order cupcakes and wine in
San Francisco;xxxvii order food all over the United States of America; xxxviii manage your
WordPress expenses; xxxix start dating online; xl and until recently, pay your Baidu
expenses.xli There is an ATM in Vancouver where you can convert your virtual coins
into cash, xlii and a Bitcoin exchange in the Eurozone which has officially been
approved to act as a bank. xliii At the same time, you can also buy drugs, xliv order
assassinations,xlv or, if you prefer doing things yourself, buy illegal weapons.xlvi
It is clear from the above that practically speaking, governments, and people too, are
just getting used to the idea that Bitcoins, or any form of cryptocurrency for that
matter, might actually work, that it actually give fiat currencies a run for their
money. And, as is becoming the sad norm with all forms of technological
advancements, the governments rules, regulations and laws are lagging far behind
Bitcoins. Despite the fact that Satoshi Nakamotos paper was originally published in
2009, and that Bitcoins have been in use for years now, governments have just started
to come out with rules regarding their usage, and even then they have not managed
to understand the unique nature of Bitcoins, and hence have failed to control, though
the US Congress Congressional Research Service has just now come out with a
report on Bitcoins that actually manages to comprehend that. xlvii China has just this
month taken steps to ban the currency,xlviii the RBI in India has similarly recently
come out with a circular,xlix causing the Indian exchanges to shut down their shops. l
The US State of California had recently sent a Cease-and-Desist notice to the Bitcoin
Page | 114
Foundation,
li
FinCen) has designed a set of guidelines lii applicable to Virtual Currencies which
would make many of the parties in the Bitcoin economy Money Services Businesses
(hereinafter MSBs) under US Law, thus requiring them to subscribe to the
cornucopia of regulations MSBs must follow.liii
All these steps, taken by the various governments spread throughout the world, only
go on to prove that they are again lagging behind in actually understanding the
technology behind Bitcoins. When the US shut down Silk Road, Silk Road 2.0 was
online and booming within weeks. liv When Silk Road 2.0 started facing issues, other
Dark Web blackmarkets gained business. lv When China started cracking down on
Bitcoins, the Chinese simply found other ways to use Bitcoins, keeping the value of
the Bitcoin in the country stable contrary to the Chinese governments hopes. lvi The
uselessness of a ban on Bitcoins that India seems to be gearing towards has already
been discussed earlier, and is even clearer with the example of China.lvii Even despite
Californias Cease-and-Desist notice to the Bitcoin Foundation, it is still running, the
FinCEN regulations have only created more confusion without actually regulating
the money laundering activities well, lviii and the CRS report has actually stated that
Bitcoins are a threat to the American dollar, if the situation is not remedied. lix There
are some cases pending in the New York courts, which will perhaps deal with the
issue better.lx
As discussed earlier in this paper, the very digital architecture of Bitcoins is
something that makes central regulation impossible, especially by the classic
approaches. Like Cloud Computing and Wearable Computer Devices, Bitcoins are a
technological revolution, only made possible because their creator thought in ways
no one had thought before.lxi In the realm of currencies, they have created a new
reality. Any attempts to regulate or track their usage must take a similarly new
approach, one that accounts for their unique structure. The governments are,
contrarily, sticking to the old laws, attempting to modify them to suit Bitcoins, but
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the fact of the matter is, nothing like Bitcoins existed when these laws were written!
Thus, Bitcoins either fall entirely outside the scope of all of these laws, or are covered
under them through extremely tenuous arguments. lxii Alternative approaches such as
covering them under Contract Law,lxiii or bringing them under the purview of the
IMF,lxiv have been suggested, which have their own pros and cons, and again depend
heavily on the stance the various governments choose to take. But the fact of the
matter remains the same Bitcoins cannot be regulated by a central regulation
mechanism, and if the governments want to take serious measures against illegal
activities involving them, they must rethink their existing approaches entirely. And
that, fortunately or unfortunately, is something they adamantly refuse to do.
CONCLUSION
Bitcoins, and other cryptocurrencies based on the same digital architecture, are an
entirely new paradigm for the world of currencies, entirely different from anything
that any government, especially the Indian government, has dealt with to date. And
along the lines of the widely criticised decisions the Indian government has been
taking recently with regards to its various laws and rules which attempt to govern
technologies and their uses, the fear that it would deal similarly horribly with
Cryptocurrencies is a major concern, especially in light of the recent RBI circular,
which has been discussed above. For instance, as noted earlier, one of the main
reasons of the appeal of the anonymity provided by Bitcoins right now is essentially a
reaction to USA and UKs surveillance of their own citizens and foreign nationals. lxv
And the Indian government has actually launched its Central Monitoring System
program, notably more publicly than the other nations since we already know about
it, in the fog that surrounds the fallout of the above surveillance programs coming to
public knowledge! This would only result in even more people taking to Bitcoins, and
that too as quickly as they possibly can. A better method of regulation, if it can even
be called that, would be to set up a network of bots that would trace the users of
wallets using the methods discussed above, thereby keeping a track of wallets
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associated with known offenders. This would simulatenously also make sure that the
core idea behind Bitcoins, the decentralisation, remains intact.
Bitcoins, it would seem, are here to stay and prosper. Nakamotos software removes
the problem of double spending, the code itself has proven to be as of yet
unbreakable, the currency itself is gaining public acceptance with surprising speed,
attempts at its regulation are failing, and the concept of a market entirely free of
government regulation is one that has found its appeal. The crucial words here,
though, are as of yet. Just like no one could have predicted the advent of Bitcoins
before Satoshi Nakamoto ghosted onto the internet, it is quite possible that someday,
someone will crack the coding of Bitcoins. It seems quite unlikely now, yes, but that
is the point behind the unpredictability of technological breakthroughs even
Satoshi Nakamoto noted the possibility of the honest nodes holding up the Bitcoin
network being overpowered by attacker nodes.lxvi Thus, while Bitcoins are indubitably
a revolution not only in the worlds of Internet and cryptocurrencies, but also in the
world of currencies as a whole and the international market itself, whether they will
last or not is not a question that can be answered. But they are regardless a lesson for
the governments, a proverbial slap in their face, and a reminder that they need to do
their jobs better. At the same time, they are a statement of sorts, that Orwellian Big
Brothers are not welcome in the cyberspace; that while an absolute lack of regulation
is not practically possible, there are limits to the steps that the government can take,
and they should not forget that. Bitcoins are, then, a sign that the citizens of various
countries around the world are losing trust in their government, that they would
rather trust computer programming and a pseudonymous computer programmer
than trust it, and every new user of Bitcoins only adds to this sense of distrust. To
paraphrase Steve Klabnik, the question that cryptocurrencies, specifically Dogecoins,
pose is that if things are worth whatever anyone says they are worth, then why not
Dogecoins, or Bitcoins, or a random piece of rock you pick up? lxvii His comment is on
the Dogecoin, a project which is inherently more satirical than Bitcoins, and which
makes people rethink the entire existing concept of money and currency. The
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Bitcoin, on the other hand, goes a step further it is meant for people who have lost
faith in the existing concepts, giving them an alternative, one free of the chains that
bind fiat currencies. It is a continuation of the old euphoria that gripped the world
when the internet was first opened to the public, fuelled by the heady idea of being as
free of governmental control as possible, something that is best expressed by the
following immortal quite by John Perry Barlow, former rockstar and founder of the
Electronic Frontier Foundation:
Governments of the Industrial World, you weary giants of flesh and steel, I come
from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the
past to leave us alone. You are not welcome among us. You have no sovereignty
where we gather.lxviii
And another part of the same declaration, that, perhaps prophetically, since it was
written in 1996, more closely mentions the Bitcoin:
You have not engaged in our great and gathering conversation, nor did you create
REFERENCES
i
ii
iii
iv
v
vi
vii
viii
ix
Steve Klabnik, How Dogecoin changed my perspective on Cryptocurrency , THE DAILY DOT,
http://www.dailydot.com/opinion/dogecoin-is-real-cryptocurrency/.
Id.
Vincent Scheurer, The Magic of Money: Can our current system of fiat money survive in the long
term?, The Motley Fool, http://news.fool.co.uk//news/investing/2011/07/01/the-magic-ofmoney.aspx.
Abba P. Lerner, Money as a Creature of State, THE AMERICAN ECONOMIC REVIEW, 37 (2), 312
(1947).
Incidentally, the term fiat is Latin for let it be done or it shall be.
Lerner, supra note 4, at 313.
This name has been used in this paper to refer to the pseudonymous identity of the creator
Bitcoins.
Taken from a five-hundred word essay written by Satoshi Nakamoto, where Bitcoins were
mentioned
for
the
first
time.
A
copy
of
the
essay
is
available
at:
http://p2pfoundation.ning.com/forum/topics/bitcoin-open-source.
Joshua Davis, The Crypto-Currency, THE NEW YORKER, Oct. 10, 2011, 62
http://www.newyorker.com/reporting/2011/10/10/111010fa_fact_davis.
Id.
Page | 118
xii
Page | 119
Page | 120
lxi
lxii
lxiii
lxiv
lxv
lxvi
lxvii
lxviii
lxix
Rob Wile, Here are all the Details About the Upcoming New York Bitcoin Hearings , BUSINESS
INSIDER, Jan. 10, 2014, http://www.businessinsider.in/Here-Are-All-The-Details-About-TheUpcoming-New-York-Bitcoin-Hearings/articleshow/28650577.cms.
Davis, supra note 9.
Kaplanov, supra note 24, at , 38-39.
Kaplanov, supra note 24, at , 41.
Nicholas Plassaras, Regulating Digital Currencies: Bringing Bitcoin Within the Reach of the IMF ,
14 Chi J Intl. L (2013), 24.
Kaplanov, supra note 24, at , 11.
Nakamoto, supra note 16.
Klabnik, supra note 1.
John Perrry Barlow, A Declaration of Independence of Cyberspace, ELECTRONIC FRONTIER
FOUNDATION, available at: https://projects.eff.org/~barlow/Declaration-Final.html.
Id.
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popular recreational activity. Gambling is not only associated with casinos and
racetracks but also other innumerable activities such as Bingo, betting on games of
skill such as golf and Internet gambling (sites such as bet365.com) making it a multibillion dollar industry with continual growth and giving birth to resort cities such as
Las Vegas, the Gambling Capital of the world.
the benefit of citizens of the country not only filling the Exchequer but also
providing employment negating the effects of economic slowdown. This resulting
increase in the tax revenue would also lower the tax burden on other sources and,
therefore, would be welcomed by other citizens of the country. v
Curbing Corruption in Sports
Former International Cricket Council (ICC) chief, Ehsan Mani, urging the ICC and
Board of Control for Cricket in India (BCCI) to pressurize the Indian government to
legalize betting said that match fixing cant be stopped until and unless the betting
industry is regulated in India calling India as the epicentre of cricket betting. vi He
further added that betting should be legalized and regulated in India in order to
monitor the conduct of the bookies also reducing the risk of corrupting players
around the world who are lured into match fixing and spot fixing due to the huge
money involved in the business.
vii
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to legalize gambling despite the economic and social advantages fearing an attack
from media and rival political parties.
Bridging Class gaps in Society
Another social advantage of legal gambling in India such as horse racing,
increasingly becoming popular in the country, is the interaction of ordinary people
with the richest people of society which is a rare sight in India, infamous for its everexpanding inequalities.
Increasing employment rate
Lottery stalls, found all over India, provide jobs for the people that print the tickets,
sell them and increasing the newspaper sales in which the lottery results are
published, providing employment to a large number of people in the chain.
Putting Taxpayers money to better use
A large amount of money and time of the government which is spent in tracking
down the criminals involved in illegal gambling could be put for better use such as
improving the infrastructure of the country as such people do not provide any
imminent threat to the public. Such a thing would also, on the other hand, ensure
that the money made in illegal betting doesnt fund terrorism and other forms of
criminal activities posing a danger to the society.
Reduction in the profits of crime-lords
Another argument advanced in favour of legalizing gambling is that it is impossible
to enforce laws against gambling with the only effect of such laws being an increase
in the price of gambling and therefore, an increase in the profits of the criminal
elements.
The transformation of Sikkim from a small, sleepy Himalayan state to one of the
major hubs of Indian gambling industry is one of the pronounced effects of legalized
gambling due to a large amount of investment which has brought economic power
in Sikkim. Sikkims economic progress has been remarkable due to legalized
gambling such as PlayWin lottery the first national lottery of India. ix Another such
example is Panjim in Goa, previously neglected by the tourism industry in favour of
beach resorts, which has seen an economic boom with thriving businesses due to the
tourism brought in by the gambling industry, pulling in gambling fans from all over
Asia to Mandovi river, home to Indias largest casinos floating on large ferries. x
Page | 126
Page | 127
flourish.
-Late J. Edgar Hoover, Director, FBI
Revenue generation is an illusion
Senator Alexander Wiley of Wisconsin while urging the state of Alaska not to
legalize gambling said that the idea of increasing revenue through gambling is an
illusion as every dollar raised would mean five dollars spent in higher police costs,
higher court costs, higher penitentiary costs and higher relief costs.xviii
Sheer waste of time
Another disadvantage of legalizing gambling is the extraordinary waste of time
involved while neglecting their family and work, especially when gambling becomes
an addiction. xix The late Elder Richard L. Evans of the Council of Twelve aptly
described it in the following statement:The spirit of gambling is a progressive thing. Usually it begins modestly; and then
like many hazardous habits, it often grows beyond control. At best it wastes time and
produces nothing. At worst it becomes a ruinous obsession and fosters false living by
encouraging the futile belief that we can continually get something for nothing. xx
Page | 128
himself to king Shakuni.xxi By the 15th century, gambling houses were legalized with
a share of the profit going to the king leading to a boom in the gambling which took
a toll on the society and, therefore, forcing the British Empire in the 19 th century to
declare gambling an illegal activity in the country under the Public Gambling Act
1867 despite the tax gains.
furnishes money for the purpose of gaming with persons frequenting such house,
walled enclosure, room or place shall be liable to a fine not exceeding two hundred
rupees, or to imprisonment of either description, as defined in the Indian Penal Code
for any term not exceeding three months. xxiv The act not only declares gambling
done as a business to earn profits illegal but also visiting gaming-house without an
active participation a crime with mere presence being enough.xxv Under this act, the
police have been given full authority to search, enter, arrest all the occupants and
seize all the gambling instruments.xxvi Though the Public Gambling Act 1867 makes
gambling illegal, section 12 has kept certain activities requiring skill whenever
played out of its purview. xxvii Bona-fide business transactions valid under the contracts
of indemnity, share market, purchase or sale of securities in future also doesnt come
under the purview of gambling.
2. Indian Contract Act 1872- Agreements by way of wager void
Section 30 of the Act prevents a person from recovering any winnings on an
agreement based on a future event wherein the loss of one party is the gain of
another party as agreements by way of wager are void. xxviii It may be legal to buy a
lottery ticket in India but the winner of such lottery willve no remedy against the
lottery agency if it refuses to pay the winnings. The MP High Court reiterated a
similar position in Subhash Kumar Manwani v. State of MP wherein the Court
dismissing the appeal under Section 96 of the Code of Civil Procedure held that the
promise to pay prize in a lottery cannot be enforced by civil suit due to prohibition
contained in Section 30 of the Indian Contract Act.xxix
Case Laws
The argument that skill based games wherever played are not illegal was reiterated
in MJ Sivani v. State of Karnataka where the SC ruled that games where the element
of chance is predominant fall under the category of gamble. xxx In S.P. Nathan v. State
of Tamil Nadu, the Madras HC held that unregulated video game operators not only
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pose danger to public peace and safety but also the vulnerable public suffer losses
while playing in games of chance and therefore the prohibition of video games based
on pure chance or mixed chance are not violative of Article 21 nor is the procedure
established by law unjust or unreasonable.xxxi The legal position in India on poker as
a skill or a chance based game continues to be uncertain with the SC in State of
Andhra Pradesh v. K Satyanarayana while answering the question of rummy being a
game of chance or skill held that the game of rummy is not entirely a game of
chance and does require skill of memorizing and discarding cards. xxxii
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the customers.xxxvii Neighbouring European countries such as France and Italy are in
the process of drafting laws which allow online gambling in order to curb
unemployment and generate revenues. xxxviii
The act, though, commercialized the gambling industry in UK was failed by the
taxation policies of the government which failed to tax all regulated forms of
gambling under one fair regime with some forms of gambling facing the brunt of
heavy taxes whereas online gambling remained untouched. xxxix All UK bookmakers,
such as William Hill, shifted their online businesses to gambling-friendly tax havens
such as Gibraltar in order to avoid taxation by the government and maximize their
profits. xl The legislature, addressing this loophole, made changes in the gambling
laws taxing the offshore operators with an idea of broadening the tax base by taxing
the wagers on a point-of-consumption basis and providing a fair competition between
UK and overseas remote gambling operators imposing a 15 % duty on online
gambling profits generated in the country.xli
United States of America
Gambling, deeply rooted in the American culture has shaped the history of America
since the pre-colonial times where the proceeds from lotteries authorized by the
ruling English monarchy were used to subsidize explorations of the New World. xlii
The first era of gambling where government and private lotteries were common in
the colonial America ended with the spread of Jacksonian morality in the country
and numerous publicized scandals. xliii Post-Civil war reconstruction introduced a
second era of gambling where lotteries were employed as a form of voluntary
taxation to rebuild the war-torn South.xliv This era ended by a scandal involving the
Louisiana lottery with the federal legislation banning the state-run lotteries and
other forms of a gambling in 1890. xlv The United States, in the 21st century, is in the
midst of a third era of widespread legalized gambling which began in 1931 with the
state of Nevada re-legalizing casinos. xlvi Initially, off-track betting and back room
casino games were treated as organized crimes by law-enforcement agencies with
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legal gambling opportunities limited to Nevada casinos, charitable bingo and horseracing though gambling expanded greatly after New Hampshire initiated the first
modern state lottery signifying a change in traditional, social and moral barriers. xlvii
Slow economic growth, cuts in federal funding and growth in public needs during
the late 1980s and early 1990s forced the state governments to explore additional
sources of revenue with states turning to lotteries and casino gambling which further
led to an increase in tourism, employment and tax revenues. The New Jersey Casino
Control Act 1977 stated that legalized casino gambling has been approved by the
New Jersey citizens as a tool of urban re-development of the city. xlviii The Congress
passed the Indian Gaming Regulatory Act 1988 allowing the tribes to operate any
form of legalized gambling in their resident state. xlix According to the data provided
by National Opinion Research Centre, 1999, some form of gambling has been
legalized in all but three states of USA and lotteries in 37 states. l Casino gambling
continues to be illegal in most of the states though Colorado, Illinois and Indiana
have legalized casino gambling to provide employment to citizens and improve their
economy. Internet Gambling Regulation, Consumer Protection and Enforcement Act
2013, introduced in the US Congress bringing the regulation of online gambling and
betting under the Federal Department of Treasury would allow a comprehensive
system regulating all forms of online gambling while also bringing in an element of
flexibility allowing the state to either participate in the internet gaming licensing
system or prohibit such system in their state.li
The attention-grabbing findings of the American Gaming Association (AGA) of
casinos generating one percent of the USs GDP in 2010 of $14.5 trillion with 566
casinos in 22 states of US providing 820,000 jobs and taking $49.7 billion from
tourists show that gambling industry propped the US economy during and after the
2008 Financial crisis. lii According to a national economic impact study released by the
AGA, the national commercial casino industry grossed second-largest gaming
revenues ever in 2012 after three consecutive years of escalating growth when it
reached its highest levels of gross gaming revenues since prior to the 2008
Page | 133
recession. liii The report also stated that an overwhelming majority of 85% of
American adults view casino gaming as acceptable for themselves representing the
highest acceptability level in the last decade. liv
CONCLUSION
Luck is a very thin wire between survival and disaster, and not many people can
keep their balance on it.lv
- Hunter S. Thompson
The effects of legalization of gambling in a country would depend on the selfdiscipline of the citizens and the magnitude on which the gambling industry is
welcomed in a region. Legalizing gambling and betting may or may not serve the
purpose depending on the favour or opposition of the same based on the arguments
mentioned above as a person influenced by either side of the arguments will take a
stand to favour or oppose the legalization of betting. The advantages and
disadvantages are observed by the residents of cities that host casinos and therefore,
while gambling can prove to be extremely beneficial bringing in economic stability
and prosperity in some areas, in other areas it can destroy lives as well.
Gambling would continue to be prevalent in India regardless of whether it is
legalized or not due to their popularity though legal forms of gambling have had
beneficial effects on both local and national economies and illegal forms of
gambling continue to fund terrorist organizations and crime lords which not only
damages the countrys economy but also the pride and reputation of the country. A
number of countries have legalized gambling in a regulated and safe manner and
India could set up a national level Gambling Regulatory Authority on the lines of
UK Gambling Commission. India, before legalizing gambling in the country should
see that the advantages significantly outnumber the disadvantages in a particular
region because if they can bring in the fun part, they can at the same time, bring in
Page | 134
ENDNOTES
Prof. I. Nelson Rose, GAMBLING AND THE LAW, Gambling and the Law, http://www.gambling
andthelaw.com /index.php/8-information/information/1-qgambling-and-the-law-rq.
iv
Kamini Mathai, Gambling addiction growing but few admit to it, The Times Of India, June 1, 2013,
http://articles.timesofindia.indiatimes.com/2013-06-01/india/39674076_1_gambling-problem-gamblingaddiction-psychiatrist.
v
AFP, Ex-ICC chief says India is illegal betting hub, Mar. 20, 2012,
http://tribune.com.pk/story/352542/ex-icc-chief-says-india-is-illegal-betting-hub/.
vii
id.
viii
Prof. Dr. Yogendra Yadav, Gambling and Mahatma Gandhi, The Gandhi-King Community,
http://gandhiking.ning.com/profiles/blogs/gambling-and-mahatma-gandhi.
ix
Sambuddha Mitra Mustafi, Poke Me: Why India should legalise casinos, Oct 16, 2013, http://articles.
economictimes.indiatimes.com/2013-10-16/news/43107322_1_casinos-gambling-american-gamingassociation.
xi
xii
Pp. 21-22, Legalized Gambling: For and Against, Rod L. Evans and Mark Hance (eds.), (Open Court
Publishing, 1998).
xiv
id. at P. 210.
xv
Page | 135
xvi
Pp. 99-99, Gambling in America: An Encyclopaedia of History, Issues, and Society, William Norman
Thompson, (ABC-CLIO, 2001).
xvii
Dallin H. Oaks, The Evils of Gambling, THE CHURCH OF JESUS CHRIST OF LATTER-DAY
SAINTS,
http://www.lds.org/ldsorg/v/index.jsp?vgnextoid=2354fccf2b7db010VgnVCM1000004d82620aRCRD&lo
cale=0&sourceId=c4650b2e72c1c010VgnVCM1000004d82620a____&hideNav=1.
xviii
P. 232, Christians and the Gambling Mania, Lycurgus M. Starkey, (New York: Harper and Row,
1967).
xix
xx
xxii
P.1080, V.N. Shuklas Constitution of India, Mahendra P. Singh, (Lucknow: Eastern Book Company,
2012).
xxiii
xxiv
Section 3 - Penalty for owning or keeping, or having charge of a gaming-house, The Public
Gambling Act 1867, available at
http://www.manupatrafast.in/Search/dispsearch.aspx?nActCompID=59797&iPage=1&h Text= .
xxv
Section 4 - Penalty for being found in gaming-house, The Public Gambling Act 1867, available at
http://www.manupatrafast.in/Search/dispsearch.aspx?nActCompID=59798&iPage=1&hText=.
xxvi
Section 5 - Powers to enter and authorise police to enter and search, The Public Gambling Act 1867,
available at
http://www.manupatrafast.in/Search/dispsearch.aspx?nActCompID=59799&iPage=1&hText=.
xxvii
Section 12 - Act not to apply to certain games, The Public Gambling Act 1867, available at
http://www.manupatrafast.in/Search/dispsearch.aspx?nActCompID=59806&iPage=1&hText=.
xxviii
Section 30 - Agreements by way of wager void, The Indian Contract Act 1872, available at
http://www.manupatrafast.in/Search/dispsearch.aspx?nActCompID=15358&iPage=1&hText=.
xxix
xxx
xxxi
xxxii
xxxiii
Heather Wardle and Alison Moody, Dont bet on it!: Why what you think you know about
gambling is probably wrong, GamCare, Spring 2011,
http://www.gamcare.org.uk/pages/dont_bet_on_it.html.
Page | 136
xxxiv
id. at P. 23.
xxxvi
Gambling & Betting Activities in the UK: Market Research Report, IBIS World,
http://www.ibisworld. co.uk/ market-research/gambling-betting-activities.html?partnerid=prweb.
xxxvii
Ian Burke, With betting industry taxes, the Government is gambling with economic growth, Jan
08 2012, http://www.telegraph.co.uk/finance/comment/9001143/With-betting-industry-taxes-theGovernment-is- gambling-with-economic-growth.html.
xxxviii
The latest news from Europe - debates about national gambling laws continue, OLSWANG,
http://www.olswang.com/articles/2011/02/the-latest-news-from-europe-debates-about-nationalgambling-laws-continue/.
xxxix
xl
Nathalie Thomas, William Hill prepares to challenge UK online gaming tax, Jul 30 2012,
http://www.telegraph.co.uk/finance/newsbysector/retailandconsumer/leisure/9436762/William-Hillprepares-to-challenge-UK-online-gaming-tax.html.
xli
id.
xlii
P. 19, Pathological Gambling: A Critical Review, National Research Council, (Washington, DC: The
National Academies Press, 1999).
xliii
id.
xliv
id.
xlv
id.
xlvi
id.
xlvii
xlviii
The State of New Jersey v. Trump Hotels and Casino Resorts Inc. (734 A.2d 1160 (1999)), available
at http://www.leagle.com/decision/19991894734A2d1160_11869.
xlix
li
Pp. 1-2, Coleman Bazelon, Kevin Neels & Pallavi Seth, Beyond the Casino Floor: Economic Impacts
of the Commercial Casino Industry, American Gaming Association,
http://www.americangaming.org/sites/default/files /uploads/docs/final_final_brattle_study_2-3-12.pdf.
Page | 137
liii
Brian Lehman, 2013 Report Shows Commercial Casino Industrys Highest Growth Rates Since
Recession, American Gaming Association, http://www.americangaming.org/newsroom/pressreleases/2013-report-shows-commercial-casino-industry%E2%80%99s-highest-growth-rates-since.
liv
id.
lv
Rama Lakshmi, India considers legalizing sports gambling as way to curb match-fixing, June 25,
2013, http://www.washingtonpost.com/blogs/worldviews/wp/2013/06/25/india-considers-legalizingsports-gambling-as-way-to-curb-match-fixing/.
Page | 138
DECRIMINALIZATION OF CANNABIS IN
INDIA
NARESH GUPTA
ABSTRACT
We live in a country where government owned shops in holy cities like Varanasi sell
cannabis in the form of bhang. This essay seeks to cover various dimensions of this
topic from the medicinal and religious use of cannabis in Ancient India to its
widespread use under the British raj and present situation under the Narcotic Drugs
and Psychotropic Substances Act which forced drug dealers to switch from selling
ganja to selling smack and other hard drugs. It further seeks to give an elaborate
perspective by taking into consideration views of Indian Government officials from
Narcotics Control Bureau and AIIMS and Government Reports from various other
countries including the Indian Hemp Drugs Commision Report.
The authors have focussed on the scientific aspect and chemical theory of Cannabis
taken from various medical journals which shows that THC has mild to moderate
analgesic effects and its use is much less dangerous than tobacco, prescription drugs,
and alcohol in social harms, physical harm, and addiction. The authors have also
focussed on evidence and data collected by various governmental and nongovernmental organisations indicating positive effects of decriminalisation of
cannabis.
Further the essay suggests decriminalization of cultivation, possession, trade and
consumption of drugs made from Cannabis Plant in small quantities using the
Portuguese model which comprises of necessary preventive and educational activities
where drug users identified by law enforcement agencies will be referred to the Drug
Page | 139
Addiction Review Judge. It promotes the fundamental notion of fighting the disease,
not the patients
Keywords:
Decriminalization,
cannabis,
bhang,
scientific,
criminal,
hemp,
commission, medical.
INTRODUCTION
In strict medical terms marijuana is far safer than many foods we commonly
consume. For example, eating 10 raw potatoes can result in a toxic response. By
comparison, it is physically impossible to eat enough marijuana to induce
death. Marijuana in its natural form is one of the safest therapeutically active
substances known to man. By any measure of rational analysis marijuana can
be safely used within the supervised routine of medical care. i
17 years ago, All India Institute for Medical Sciences, Delhi (AIIMS), conducted a
national workshop on Cannabis-Health Damage and Legislative Options in which
medical professionals concluded that cannabis does not have adverse health effects,
it gave recommendations to the Home Ministry to reconsider existing laws for drugs
made from the female Cannabis Sativa plant i.e. ganja, charas and bhang.ii At the
same time, A.K. Srivastava, Joint Director, Narcotics Control Bureau (NCB) said: we
have no objection to making changes in the Narcotic Drugs and Psychotropic
Substances Act (NDPS Act), he further added that cannabis grows wild and burning it
down has been a futile exercise, you burn it and it grows back in a year. iii
These aforesaid mentioned reactions were recorded on the 10 th Anniversary of the
NDPS Act which was a poor law that clubbed cannabis, hashish and bhang with hard
drugs like smack, heroin and cocaine and banned them all. Most drug dealers
switched from selling ganja to selling smack and other hard drugs. This was so
because while the risk was the same, the profits from selling heroin were several
times higher.iv The NDPS Act did more bad than good.
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The sad part was not only we criminalized use of all drugs but we also failed to do
this systemically or by taking medical opinion into consideration, in fact the British
in the 1890s did a better job the us when they set up the Indian hemp Commision.
BACKGROUND
Since 1961, the US has been campaigning for a global law against all drugs, both
hard and soft. India objected to this campaign and the draft of single convention
which included the seeds and leaves in the definition of cannabis, v due to use of
cannabis leaves in making bhang. It was excluded later. Hence, the traditional use of
bhang in India could continue. vi
In most of the countries consumption of any product made out of cannabis plant is
illegal, but Indian law surprisingly allows use of cannabis leaves in preparation of
bhang, in fact the government owned and licensed shops sell bhang throughout the
country.
Large tracts of cannabis grow unchecked in the wild in many states such as West
Bengal, Tripura, Andhra Pradesh, Karnataka, Kerala, and Tamil Nadu.vii Moreover,
Hashish has been used for medicinal and religious purposes for thousands of years viii
and was sold in government shops during the times of the British Raj and in
independent India until the 1980s.ix It is still being sold today.
2.1. HISTORICAL / MEDICAL
The use of bhang between the fifth and twelfth century is frequently mentioned in
dictionaries, and the names used would seem to show that its use as an intoxicant was
then known. In the Rajanighantu of Narahari Paandita, A.D. 1300, the effects of hemp
on man are described as excitant, heating, astringent: it destroys phlegm, expels
flatulence, induces costiveness, sharpens the memory, and excite appetite. In the
Carngadharasamhita, a medical work, the date of which is unknown, but which must
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have been compiled during the Muhammadan period of Indian history, bhang is
specially mentioned as an excitant. x
In 19th Century clinical trials carried out by physicians on Indian patients at that time
showed it to be a" useful anodyne, hypnotic and antispasmodic. According to the
Indian Hemp Drug Commission, bhang was considered as a refreshing beverage
corresponding to beer in England and moderate indulgence in it was attended with
less injurious consequences than similar consumption of alcohol in Europe. xi
During the period that followed the report of these early observers, cannabis was
used for its analgesic and hypnotic effects in such affections as asthma, neuralgia,
tinnitus, dysmenorrhoea, muscular and joint pains, etc. It was also used to relieve the
lightning pains of tubes, fornication, numbness, paraesthesia, convulsions, etc. xii
Bhang and ganja are prescribed extensively by Hakims and Vaidyas in bowel
complaints and are recommended as appetizers, as nervous stimulants and as a
source of great staying-power under conditions of severe exertion or fatigue.
xiii
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xiv
2.2. RELIGIOUS
Reference to cannabis drugs is found in the classical literature as well as in old
medical works of many countries in the world. In Indian literature the earliest
reference to the word "bhang" occurs in the Atharva Veda, which, according to
western scholars, dates as far back as 2000 to 1400 B.C. Whether the term was used at
that time to mean only a particular species of a sacred grass, or the true cannabis
plant, is an open question. xv
The cannabis plant is regarded by the Hindus as holy, and the origin of this
conception can be traced to the Vedic period. In the Atharva Veda, the plant is
described as a sacred grass, and the guardian angel of mankind is supposed to reside
in its leaves. In Bengal, for instance, the custom still persists among certain classes of
offering a beverage prepared from the leaves of the cannabis plant to the various
family members and to guests present on the last day of Durga Puja (Vijaya Dasmi)
which is the biggest Hindu festival in that state.xvi
According to the Indian Hemp Commision, at the Shivratri festival, and on almost all
occasions before it, not only that ganja is offered to the god but is also consumed by
all classes of the worshippers and these customs are so intimately connected with
their worship that they may be considered to form in some sense an integral part of it
and there was abundant evidence before the Commission. xvii
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evidence exists that anyone has ever died of a cannabis overdose. xx The ratio of
cannabis material required to produce a fatal overdose to the amount required to
saturate cannabinoid receptors and cause intoxication is approximately 40,000:1 xxi
whereas for alcohol it is between 4:1 and 10:1. xxii
"There are no deaths from cannabis use. Anywhere. You can't find one," said Dr.
Lester Grinspoon, professor emeritus at Harvard Medical School. Believe it: In 10,000
years of known use of cannabis, there's never been a single death attributed to
marijuana.xxiii
3.1. EFFECTS
According to the Indian Hemp Commission Cannabis doesnt cause any serious
mental or physicals effects:
Effects
Opinion on Effects
Physical
The moderate use of hemp drugs appears to cause no physical injury and
doesnt cause irreversible health or social damage even if used on a longterm basis. xxiv
Mental
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2. Bhang is the Joy-giver, the Sky-filler, the Heavenly- Guide, the Poor Mans
Heaven, the Soother of Grief. No god or man is as good as the religious
drinker of bhang. The supporting power of bhang has brought many a Hindu
family safe through the miseries of famine. To forbid or even seriously restrict
the use of so gracious an herb as the hemp would cause widespread suffering
and annoyance and to large bands of worshipped ascetics, deep-seated anger. It
would rob the people of a solace on discomfort, of a cure in sickness, of a
guardian whose gracious protection saves them from the attacks of evil
influences.
These conclusions not only reiterate that cannabis has no malicious effect on
physical and mental health but also point out that how ironic the current situation is
that the British Government didnt attempt any prohibition on the cannabis plant so
as not to hurt the sentiments of the Indian people; The plant was later prohibited
much later, by our own Indian Government.
The Lancet, a respected medical journal, in its November '95 issue commented in an
editorial that "smoking of cannabis, even long term, is not harmful to health yet this
widely-used substance is illegal just about everywhere." It further went on stating that
the new evidence is in fact nothing new and merely confirms the conclusions drawn
by the Royal Hemp Commission in 1895 that cannabis products had benign effects
and that they caused no irreversible health or social damage even if used on a longterm basis. Reversible intoxication also occurs with cannabis which temporarily
affects motor functions. But this also happens with alcohol intake. xxvi This opinion
was also quoted in a 1997 AIIMS publicationxxvii
Also, talking about the addiction from marijuana Dr R C Jiloha, director and head of
psychiatry at G B Pant Hospital and in-charge of de-addiction says: "Very few patients
come to us for marijuana de-addiction. The drug is less addictive compared to
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heroine, crack cocaine or even alcohol. It doesn't cause body ache, abdominal pain
and other physical symptoms.xxviii
1.2. SOFT DRUG
The NDPS Act itself recognizes cannabis as a soft drug. It recommends a lighter
sentence for possession of both ganja and hashish compared to the jail term
prescribed for violations involving opiate drugs, like heroin and its impure formbrown sugar. While possession of five grams of charas would invite a year's sentence
and 500 grams of ganja would put you in jail for six months, a heroin or morphine
rap could mean sentences up to 15 years and in severe cases of trafficking, even the
death penalty.xxix
Various findings been made by organisations and individuals have time and again
proved that cannabis is a soft drug, one such finding was made by Devendra Mohan
(Head, Department of Psychiatry) at AIIMS who concluded that:
Page | 146
GRAPH 1
xxxi
GRAPH 2
xxxii
These graphs show that how marijuana ranks only moderate/low in dependence
potential, also it is almost negligible in lethal dose, which ironically in turn is much
Page | 147
less than caffeine, alcohol and various other widely used psychoactive drugs and is
lesser than alcohol and tobacco in physical harm.
Page | 148
FIGURE 1
the United States. However, for young adolescents, rates of marijuana use are lower
in the Netherlands than in the United States. The Dutch government occasionally
revises
existing
marijuana
policy,
but
it
remains
committed
to
Incarceration costs: These costs are incurred to keep a person confined in prison. A
US report says that costs for cannabis enforcement are the highest at $328 per user
while for alcohol it is $153 xxxviii. In 1997 Judiciary Committee of the Connecticut
General Assembly in its report emphasized that drug policies relying heavily on
penal sanctions and incarceration are costly and fail to address the social and public
health aspects of substance abuse. Criminal laws should be administered in concert
with treatment and other social and public health initiatives. They also mentioned
that such a policy change will drastically reduce drug related incarceration costs. xxxix
Consumption and Cost: Decriminalization does not result necessarily lead to lower
prices and higher consumption rates. xl It also saves a tremendous amount in
enforcement costs. California saved an estimated $857 million in 2006 alone. xli Also,
most cannabis users never use any other illicit drugxlii.
As regards measures against trafficking in drugs and precursors, under the current
policy India will use satellite imagery to detect and eradicate illicit cultivation of
opium poppy and cannabis plant. The Government of India is pursuing a sustained
effort to reduce the level of illicit cultivation of cannabis plant in the country. In
2010, the estimated area under illicit cultivation was 552 ha, following the
eradication of 681 ha of illicitly cultivated cannabis plant during the course of that
year. A further 1,114 ha were eradicated in 2011.
Cannabis is the most abused drug in India, followed by opium. No matter how much
money or technology the government might put in, it seems highly illogical and
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extremely costly to eradicate a naturally growing plant which despite a legal ban has
widespread use in the country xliii and has been used for past thousands of years and
now has become a part of the culture and everyday lives.
Most people don't like calling bhang an intoxicant but a prasad (holy offering) of
Lord Shiva."Don't call it nasha (intoxicant). It is the prasad of Lord Shiva, " said
Radhey Lal, in his late 60s, cradling a glass of bhangs thandai in his hand. "We do not
drink alcohol. All we take is bhang, which we consider as prasad," said Krishna, who
is in his early 30s. There are around 785 government-licensed bhang shops in the
state of Rajasthan alone which sell around 400 quintals of bhang in a year. xliv One can
only imagine the widespread reach cannabis has in this country.
This policy option will decriminalize drug cultivation, possession, trade and
consumption of drugs made from Cannabis Plant in small quantities (the word small
quantities means quantity meant for personal use as mentioned under the NDPS Act,
which has classified offences into two types i.e. small quantities and large quantities)
therefore focusing on improvement of those who are consuming it rather than
punishing them, as the latter as neither helped in reduction in the usage nor has had
any effect on the society at large.
administrative offense only, and theyre put into an administrative proceeding rather
than a criminal proceeding.
Therefore the proposed policy change is recommended and should be implemented
by making major modifications in the NDPS Act as well as state drug laws. Section 8,
Section 10 and Section 20 of the Act which talks about punishment for contravention
in relation to cannabis plant and cannabis need a major amendment. Use of
community punishments rather than imprisonment for most drug dependent
offenders should be the object of the modified law. xlvi The new strategy and
legislation should be based on the fundamental notion of fighting the disease, not
the patients.
Maximising the use and cost effectiveness of community sentences is likely to be
more beneficial than imprisoning problem drug-using offenders.xlvii The strategy and
actions could be based on Portuguese model which comprises of necessary
preventive and educational activities and steps which should be taken in order to
improve treatment programs. xlviii Under the new decriminalization law, drug users
identified by law enforcement agencies are referred to the Drug Addiction Review
Judge(DARJ), equivalent to Judicial Magistrate First Class (JMFC) who will asses
users and decide the most appropriate sanction and referral to educational or
treatment programs.
If a person fails to attend the proceedings under DARJ, an administrative sanction
may be applied such as a fine, revocation of a driving license, community service, xlix
travel bans, property confiscation and rehabilitation. l According to UK Drug
Commision, imprisonment is more likely to entrench some problems for the
offender and their family, rather than solve them.li
There must be a reasonable ground in creating a law, and a proportionate ability to
enforce it. One without the other renders the law untenable as is the case in India.
Legislating for the sake of legislating or to impose a viewpoint on the people is both
Page | 152
REFERENCES
i
ii
Pillai A. & Menezes S. (Aug 28, 1996) Case for Cannabis: A national workshop recommends
Ibid 2
iv
The Joint Campaign, Should we not legalize recreational use of Cannabis? Times of India, TNN
Single Convention on Narcotic Drugs, 1961 (As amended by the 1972 Protocol amending the Single
Convention on Narcotic Drugs, 1961), 18 UST 1407, United Nations, UNODC Retrieved from:
www.unodc.org/pdf/convention_1961_en.pdf
vi
Jelsma M. (24-25 January 2011) The Development of international drug control: Lessons learned and
strategic challenges for the future. Global Commision on Drug Policies, Geneva Retrieved from:
www.globalcommissionondrugs.org/.../Global_Com_Martin_Jelsma.pdf
vii
Narcotics Control Bureau, Ministry of Home Affairs, Government of India (2011) Annual Report,
If Drugs Were Legal, Scarlett Might Be Alive. The Times of India, TNN (March 14, 2008.) Retrieved
from: http://timesofindia.indiatimes.com/home/opinion/jug-suraiya/second-opinion/If-drugs-were-legalScarlett-might-be-alive/articleshow/2863581.cms
ix
Report of the Indian hemp Drugs Commission, Shimla, India, Government Central Printing House,
1894, 7 vols. Chapter XIV. The policy of hemp drug administration. (189394) Retrieved from:
www.druglibrary.eu/library/reports/indianhemp.pdf
x
Report of the Indian hemp Drugs Commission, Shimla, India, Government Central Printing House,
xi
Chopra I. C., Chopra R. N. () The Use of the Cannabis Drugs in India, UNODC. Retrieved from:
http://www.unodc.org/unodc/en/data-and-analysis/bulletin/bulletin_1957-01-01_1_page003.html#
xii
Ibid 10
xiii
Ibid 11
xiv
Ibid 12
xv
Ibid 13
xvi
Report of the Indian hemp Drugs Commission, Shimla, India, Government Central Printing House,
Ibid 15
xviii
Elphick, M. R. & Egertova, M. (2001) The neurobiology and evolution of cannabinoid signalling.
Philosophical Transactions of the Royal Society B: Biological Sciences 356 (1407) p. 381408 Retrieved
from: http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1088434/
xix
Drug classification: making a hash of it? Fifth Report of Session, House of Commons Science and
Technology Committee, UK government report. HC 1031 (July 18, 2006) Retrieved from:
http://www.parliament.uk/business/committees/committees-a-z/lords-select/science-and-technologycommittee/publications/
xx
Grinspoon L. (1971) Marihuana Reconsidered, Harvard University Press, 1971. p. 53 54; Grinspoon,
L. (Sept 23, 2012), Grinspoon: Marijuana is here to stay, The Metro West Daily News. Retrieved from:
http://www.metrowestdailynes.com/opinion/x422896402/Grinspoon-Marijuana-Is-Here-to-Stay; Smith
D. (Aug 08, 2012) Medical marijuana: 10 health benefits that legitimize legalization, IBTIMES.
Retrieved from: http://www.ibtimes.com/%E2%80%98medical%E2%80%99-marijuana-10-healthbenefits-legitimize-legalization-742456; Mortality data from the Drug Abuse Warning Network. The
Substance Abuse and Mental Health Services Administration's (SAMHSA) (2003); Geller T., Loftis L.,
Brink D. (2004) Cerebellar Infarction in Adolescent Males Associated with Acute marijuana use.
xxi
Mikuriya, T.H. (1969) Historical Aspects of Cannabis Sativa in Western Medicine, New Physician, p.
905.
xxii
xxiii
Smith D. (Aug 08, 2012) Medical marijuana: 10 health benefits that legitimize legalization,
Supra 2; Report of the Indian hemp Drugs Commission, Shimla, India, Government Central
Printing House, 1894, 7 vols. Chapter xiii. EffectsMoral: General summary of conclusions. p. 264,
para. 552 (189394) Retrieved from: www.druglibrary.eu/library/reports/indianhemp.pdf
Page | 154
xxv
Report of the Indian hemp Drugs Commission, Shimla, India, Government Central Printing House,
1894, 7 vols. Chapter xiii. EffectsMoral: General summary of conclusions. p. 264, para. 552 (189394)
Retrieved from: www.druglibrary.eu/library/reports/indianhemp.pdf
xxvi
Pillai A. & Menezes S. (Aug 28, 1996) Case for Cannabis: A national workshop recommends
Durgesh J.N. (Nov 10, 2012) Hope for dope: Alcoholics face a greater risk than marijuana users,
Ibid 26
xxix
Supra 2
xxx
Supra 2
xxxi
Gable R.S. (2006) The Toxicity of Recreational Drugs, American Scientist, The Scientific Research
Drug classification: making a hash of it? Fifth Report of Session, House of Commons Science and
Technology Committee, UK government report. HC 1031 (July 18, 2006) Retrieved from:
http://www.parliament.uk/business/committees/committees-a-z/lords-select/science-and-technologycommittee/publications/; Nutt D., Leslie A.K., Saulsbury W., Blakemore C. (March 24, 2007)
Development of a rational scale to assess the harm of drugs of potential misuse, The Lancet 2007
xxxiii
Rolles S (2009) After the War on Drugs: Blueprint for Regulation. Bristol: Transform Drug Policy
Foundation.
xxxiv
Stephen R. (2009), After the War on Drugs: Blueprint for Regulation, Transform Drug Policy
UN Office on Drugs and Crime (UNODC) (2012) UNODC and the protection and promotion of
Fromberg, E. (1994) The Case of the Netherlands: Contradictions and Values in Questioning
World Drug Report (2012), UNODC, United Nations publication, Sales No. E.12.XI.1. Retrieved
Page | 155
(February 2001) Evaluating alternative cannabis regimes, British Journal of Psychiatry, October 2013,
Issue 4, Volume 203 Retrieved from: http://bjp.rcpsych.org/content/178/2/123.full; Single E. The impact
of marijuana decriminalisation: An update, Journal of Public Health Policy, 1989; 10: 456-66. Retrieved
from: http://bjp.rcpsych.org/content/178/2/123.full.
xxxviii
Thomas G. & Davis C (2009), Cannabis, Issue of Visions Journal, 5 (4), p. 1 Retrieved from:
www.heretohelp.bc.ca/visions/cannabis-vol5/cannabis-tobacco-and-alcohol-use-in-canada
xxxix
Drug Policy in Connecticut and Strategy Options (1997), Report to the Judiciary Committee of the
Gable, R. S. (2006). Acute toxicity of drugs versus regulatory status., J. M. Fish (Ed.), Drugs and
Society: U.S. Public Policy, pp.149-162.; Reinarman, C., Cohen, P. and Kaal, H. (2004) The Limited
Relevance of Drug Policy: Cannabis in Amsterdam and in San Francisco, American Journal of Public
Health vol. 94 pp.836842
xli
Gettman, J. Marijuana Arrests in the United States (2007), The Bulletin of Cannabis Reform,
November 2009
xlii
Morral A.R., McCaffrey, Daniel F. and Susan P.M. (2002), Reassessing the marijuana gateway effect,
Addiction.1493-504
xliii
The Joint Campaign, Should we not legalize recreational use of Cannabis? Times of India, TNN
Sharma Anil, Starting the day with the cup that kicks, Hindustan Times, IANS, Retrieved from:
http://www.hindustantimes.com/india-news/starting-the-day-with-the-cup-that-kicks/article1255630.aspx
xlv
Report of the International Narcotics Control Board for 2012,(2012) E/INCB/2012/1, United Nations
Domosawski A.(June 2011) Drug Policy in Portugal: The Benefits of Decriminalizing Drug Use,
A fresh approach to drugs (October 2012), The final report of the UK Drug Policy Commission.,
Page | 156
http://www.equalitytrust.org.uk/sites/default/files/attachments/resources/UKDPC%20%20A%20Fresh%
20Approach%20to%20Drugs%20-%20EMBARGOED-1.pdf
xlviii
Domosawski A.(June 2011) Drug Policy in Portugal: The Benefits of Decriminalizing Drug Use,
Report of the International Narcotics Control Board for 2012,(2012) E/INCB/2012/1, United Nations
UNODC and the protection and promotion of human rights (2012), UN Office on Drugs and Crime
A fresh approach to drugs (October 2012), The final report of the UK Drug Policy Commission.,
Page | 157
INTRODUCTION
The 2G license scam is considered to be one of the many reasons for the potential
undoing of the 10 year long UPA government in India. Summarily, the dispute
revolves around the cancellation of the 2G licenses which were issued by the
Department of Telecommunications, Government of India by the Supreme Court
after intensive investigation carried out by the Central Bureau of India and much
public outcry. This judicial conclusion of cancelling 122 licenses was arrived at
through the Supreme Court judgment in the case of Centre for Public Interest
Page | 159
Page | 160
But as the
international law became more sophisticated and the nations became smarter
mavericks, it had to be interpreted widely to include indirect xi , creeping xii and
regulatory acts
xiii
expropriation.
The line of argument that the claimant is likely to rely on is the sole effect doctrine
evolved over the years through tribunal decisions like that of Tippetsxiv, Metacladxv,
Phelpps Dodgexvi etc. The sole effect doctrine considers the economic effect of the
government action/inaction on the investment as the sole criterion in determining
whether there exists an obligation to compensate the investor. If the tribunal accepts
the jurisprudence evolved though tribunal decisions like those stated above as the
litmus test to decide if expropriation exists then the claimant has to simply establish
that the cancellation of licenses was a government action that resulted in a
considerable economic loss to the investor. What exactly the claimants have to
Page | 161
International Corp v. Islamic Republic of Iranxx, the tribunal went to the extent of
acknowledging the need for the challenged law in light of the national interest of
Iran and still ordered the respondents (Iran) to compensate the claimant.
Similarly, host states had to compensate the investor even when the contested
regulations that were giving rise to expropriation were enacted or implemented with
an intention to protect the environment against the blatantly environment harming
activities of the investor in Metaclad casexxi and that of Santa Elena v. Costa Ricaxxii.
Through undertaking this extensive exercise in pointing towards this school of
investment law, the claimants would attempt to influence the tribunals method of
arriving at the conclusion of whether an expropriation exists in this particular case. If
the tribunal was to accept this sole effect doctrine then the claimants would have
successfully vitiated any need of entering into the raison d'tre of the Indian SC
judgment. This would be an important coup for the counsel of the claimants as now
all they have to establish is that the cancelling of the license resulted in an economic
loss to their client.
The next step in their argument would be to establish an economic loss or wealth
deprivation. The claimants are bound to argue that in the present case a compulsory
and direct transfer of property rights to the government has taken place as a result of
Page | 162
the judgment given by the Supreme Court of India. In Tecmed v. Mexico xxiii , an
ICSID panel held that a failure of renewal of a land license was considered an act of
expropriation to be compensated by the host state of Mexico. The claimant is likely to
draw parallel to the above case law and suggest that the Indian judiciarys action
should be considered an act of expropriation even more direct than that of the
Government of Mexico.
Similar jurisprudence which could perhaps be relied on during the course of their
argument would be the case of CME v. Czech Republicxxiv. The dispute in the CME
casexxv is perhaps going to be more relevant than the one cited previously as it was
contested in the case that the Media Council, a statutory authority, had reversed its
original position thereby forcing the local partner of the investor to agree to
amendments which significantly reduced the value of the investment.
xxvi
The
argument was held to be a valid one and gave a right of compensation to the
investor. The tribunal reasoned that the expropriation of the investment was a direct
consequence of the actions and inactions of the government and that there was no
immediate prospect at hand that the joint venture will be reinstated in a position to
enjoy an exclusive use of license.xxvii
Finally, the concluding argument of the claimants with respect to the claim of
expropriation could be that this act of the Indian judiciary is against the legitimate
expectation that the investors had when investing in the joint ventures. In
international investment law, the interests of the foreign investor are protected
against unreasonable and unexpected change in policy of the government. Though
in most cases a successful claim of violating legitimate expectation requires specific
commitment of the government to the investor which had a pivotal role in the
investors decision to invest in the host nation xxviii , where exclusive licenses were
granted, the expectation that the same would continue to exist can be considered a
legitimate expectation of the investor even if no specific commitment was made.xxix
Relying on the Thunderbird casexxx, the claimant is likely to claim that assuming that
the issuing authority of the host state is competent is in fact one of the most
Page | 163
rudimentary of all expectations that an investor can have.xxxi The obligation of the
host state to meet the legitimate expectation goes beyond the possible prejudice that
the implementation of the expectation could have against the nations interest. This
line of argument was accepted in the case of MTD Chile v. State of Chilexxxii and the
[i]t is now established in international law that States are not liable to
pay compensation to a foreign investor when, in the normal exercise
Page | 164
Page | 165
Housing v. Iranxlvii, the tribunal considered even a possible revolution to be within the
ambit of risks that a business has to undertake when investing in the nation. Clearly,
the upturning of an administrative action as being contrary to the Constitution by the
judiciary in a country plagued by corruption and one with a pro-active judiciary has
greater likelihood of happening than a revolution. The respondent is likely to contest
that if the latter is a reasonable risk that an investor is expected to agree to then it is
absurd to argue that judicial activism and corrective justice do not fall within the
ambit of potential risks that a host state need not compensate an investor for.
A tribunal while arriving at its decision needs to piece together not only the two sides
of the dispute but also include that segment of the jurisprudence which was cleverly
whitewashed by the competent counsels of either or both parties. In the present
dispute as well, the tribunal need not necessarily follow either of the two doctrines
enunciated by both parties and instead seek parity by combining the two.
The concept of proportionality between the purpose of the regulation and the extent
of the economic loss of the investor already exists in the legal landscape though not
as clearly evolved. The tribunal in Tecmed v. Mexico xlviii rightly reasoned:
James v. United Kingdomlii, the Court considered the taking of property from one as
a necessary evil if the same was done for the purpose of greater social justice.
Similarly in Sporrong and Lnnroth v. Swedenliii, the court recognised that the States
are entitled, amongst other things, to control the use of property in accordance with
the general interest, by enforcing such laws as they deem necessary for the
purpose.liv
Authoritative authors of investment law like the revered Sonarajah have also
recognised the need to combine the two approaches to arrive at a more weathered
and tempered test to determine expropriation.lv
Page | 167
The most logical approach to reconcile the two opposite spectrums would be to
follow a test that determines whether the degree of adverse effect of the measure on
the investment was justified in light of the public purpose that the measure intended
to serve. Accountability is the cornerstone of a constitutional democracy like that of
India. Any measure taken to achieve the same cannot be restrained on account of the
possible conflict with the profit expectancy that a foreign investor might have had
from investing in the country. In light of the new wave of people initiated justice
that the world is witnessing today, there is a greater possibility that the tribunal
would sympathise with the mitigating circumstances that culminated into the
disputed SC judgment.
Under important element that enables a better insight into the commitment of the
investors in pursuing business with India is the fact that they refused to participate in
the new allocation of licenses that was initiated by the Telecom Department. This
non participation was despite the fact that the Government of India had reassured
that the outstanding losses of the successful candidates would be balanced out
against any future payments that they would have had to make after getting their
licenses.
Quite a few foreign investors and their home countries have threatened to revert to
the international forum for compensation of their losses. The strongest in expressing
their opinions from the very beginning were Russia and Norway with the Russian
conglomerate Systema already having served a Notice of Arbitration.
lvi
The
government is worried of the possible costs that the exchequer would have to incur
were these claims to be awarded in favour of the many claimants. If a single of these
arbitration are ruled in favour of the claimant, it will create a domino effect where
most foreign investors would employ the international dispute redressal mechanism
to be compensated for any economic loss that they might have incurred.
This also highlights another trouble that has been simmering under the surface for
the Indian government for a long time the repercussions of hurriedly executed and
ill-thought-of Bilateral Trade Agreements that the country has been committing to
Page | 168
over the past decade. In its enthusiasm to prove its credibility as an investor friendly
country, India has entered into more than 74 BITs with negotiations underway for
another 22. lvii Perhaps it is time to improve the negotiations to an extent and
deliberate on including such clauses which provide greater flexibility to the Indian
state to legislate and rule on policy matters important to public welfare without
making it vulnerable to possible investment litigations.
A caged bird is often the imagery that the romantics associate with India. We were
under foreign rule for a century to be followed with another long term enslaved to
our own corrupt politicians. As India awakens to a more conscious future, it is
important that we should not be enslaved and wrapped in arbitrations and litigations
for the coming decades merely because of our eagerness to establish ourselves as a
sought after investment destination.
The 2G scam has acted as an effective eye opener to the pathetic condition of the
domestic Indian polity. It might as well ignite a debate on Indias approach to its
bilateral trade and prevent India from being held at the figurative gun point of
possible costly arbitrations by foreign investors in the future.
REFERENCES
i
2011(2)ACR1912(SC)
ii
Nanthan and Prasad, Loop Telecom investor KHML slaps $1.4bn notice on government, Economic
iv
Sylva and Pye, Expropriation clauses in International Investment Agreements and an appropriate
room for host states to enact regulations: a practical guide for states and investors, The Graduate
Institute,
Geneva,
http://graduateinstitute.ch/files/live/sites/iheid/files/sites/ctei/shared/CTEI/Research%20Projects/Trade
%20Law%20Clinic/Expropriation%20clauses%20in%20International%20Investment%20Agreements%
20and%20the%20appropriate%20room%20for%20host%20States%20to%20enact%20regulations,%202
009.pdf
v
Ibid.
Page | 169
vi
Andrew Newcombe and Llus Paradell , Law and Practice of Investment Treaties: Standards of
Fortier and Drymer, Indirect Expropriation in the Law of International Investment: I Know It When
SUPRA N. 6, P. 3.
xi
Ibid.
xiii
Ibid.
xiv
Iran-US Claims Tribunal, Tippetts, Abbett, McCarthy, Stratton v. TAMS-AFFA, 6 IRAN-U.S. C.T.R.,
at 219 et seq.
xv
METALCLAD CORPORATION V. MEXICO . ICSID CASE NO. ARB (AF)/97/1. 40 ILM 36 (2001),
AVAILABLE AT < HTTP ://WWW .WORLDBANK .ORG / ICSID /CASES /AWARDS .HTM >.
NAFTA CHAPTER 11
Phelps Dodge International Corp. v The Islamic Republic of Iran , 10 Iran-US C.T.R., 130
xvii
B. Weston, Constructive Takings under International Law: A Modest Foray into the Problem of
Supra n. xiv.
xx
10 Iran-US C.T.R
xxi
Supra n. xv
xxii
Compaa del Desarrollo de Santa Elena S.A. v. Republic of Costa Rica, ICSID Case No. ARB/96/1.
Tecnicas Medioambientales Tecmed S.A, v. The United Mexican States , ICSID Award Case No. ARB
xxiii
(AF)/00/2.
CME (Netherlands) v. Czech Republic (Partial Award) (13 September, 2001) available at
xxiv
www.mfcr.cz/scripts/hpe/default.asp.
xxv
Ibid.
xxvi
Id at pp 160-170.
xxvii
Id at p. 171.
Page | 170
xxviii
Kenneth J Vandevelde, A Unified Theory of Fair and Equitable Treatment, 43 New York Univ J
International Thunderbirds Gaming Corporation v. United Mexican States , NAFTA Arb.Tr,, 2006.
xxxi
xxxii
MTD Equity Sdn Bhd and MTD Chile S.A. v. Republic of Chile, ICSID Case No. ARB/01/7, Award,
Supra n.23.
xxxiv
Supra n.8.
xxxv
Saluka Investments BV (The Netherlands) v The Czech Republic, UNCITRAL, Partial Award, para
Id at para 276.
xxxvii
Kara Dougherty, Methanex v. United States: The Realignment of NAFTA Chapter 11 with
Environmental
Regulation ,
27
NW. J.
INT'L L.
&
BUS. 735
(2007). http://scholarlycommons.law.northwestern.edu/njilb/vol27/iss3/27
xxxviii
www.mfcr.cz/scripts/hpe/default.asp
xxxix
Restatement of the Law Third, the Foreign Relations of the United States, American Law
Ibid.
xli
xlii
xliii
Eudoro Armando Olgun v . Republic of Paraguay. ICSID Case No. ARB/98/5 (1997)
xliv
xlv
S.D. Myers, Inc. v. Canada, (November 13, 2000) Partial Award, 232. International Legal Materials,
408.
xlvi
Marvin Roy Feldman Karpa (CEMSA) v. United Mexican States, ICSID Case No. ARB(AF)/99/1
xlviii
Supra n. xxiii
xlix
l
G.C. Christie, What Constitutes a Taking of Property Under International Law, 38 Brit. Y.B.
Page | 171
li
lii
liii
liv
Ibid.
lv
Supra n. xvii.
lvi
lvii
Kawaljit
Singh,
Sistema
Threatens
to
Invoke
Bilateral
Investment
Treaty ,
http://www.madhyam.org.in/admin/tender/Sistema%20Threat2.htm
Page | 172
INTRODUCTION
Crime is present in our society from a very long time. We may disagree its hold in
the society but we cannot deny its presence. However, it has been on the rise in recent
times. Whats most astonishing is that the young are getting more attracted to what
we can simply call the crime sector. It is undeniable that they are the worst affected
as they are still in the initial phase of what could be a bright future. But, should
minors be treated differently as compared to others who commit the same crime? Is
this because of the rather lenient Juvenile Justice System? Crime at any age must be
treated as a crime. Does a 17-year-old have less reasoning power than an 18-year-old?
What great mental development will there be in the next one year? Is he less capable
of understanding the ramifications of his actions one year before? Was the
enhancement of the age of a juvenile from 16 years to 18 years in year 2000 without
any basis? Are they are in a position to decide what is wrong and what is right? To
answer these entire set of questions, we must have a clear insight into the Juvenile
Justice system of India.
Page | 174
reformative schools. ii Then we had Children Acts in various states of the country
dealing with juvenile courts and other institutions. The Juvenile Justice Bill was first
introduced in the Lok Sabha on 22 August 1986. This Act was further amended in
2006 and 2011 and is now known as the Juvenile Justice (Care and Protection) Act,
2000.iii
In India, the age of a juvenile (both boys and girls) was set at eighteen years of age by
the Juvenile Justice Act, 2000 to conform to the United Nations Convention on the
Rights of the Child. This would mean that all juvenile offences would be tried by the
Juvenile Justice Board and not the regular courts. The original act doesnt have a
word about rape or murder being committed by juveniles. Under the law, juvenile
offenders who have committed heinous crimes (rape and murder) can only be sent to
a place of safety for a maximum period of three years.
Juvenile Justice Act, 2000 was further amended in 2006 to make it clear that
juvenility would be reckoned from the date of commission of offence who have not
completed eighteenth year of age thus clarifying ambiguities raised in Arnit Das vs
State of Bihariv . The amendment also made it clear that under no circumstances, a
juvenile in conflict with law is to be kept in a police lock-up or lodged in a jail. v
Who exactly is a Juvenile? Section 2 (k) of the Juvenile Justice (Care and Protection of
Children) Act, 2000 defines juvenile or Child as a person who has not completed
eighteenth year of age.vi
A Juvenile can be defined as a child who has not attained a certain age at which he,
like an adult person under the law of the land, can be held liable for his criminal acts.
A juvenile is a child who is alleged to have committed /violated some law which
declares the act or omission on the part of the child as an offence. Juvenile and minor
in legal terms are used in different context. Juvenile is used when reference is made
to a young criminal offenders and minor relates to legal capacity or majority.
vii
Page | 175
In India, under section 82 of the Indian Penal Code, nothing is an offence which is
done by a child under seven years of age and under section 83 nothing is an offence
which is done by a child above seven years of age and under twelve, who has not
attained sufficient maturity of understanding to judge the nature and consequence of
his conduct on that occasion. viii
ix
In United Kingdom, Youth justice and Criminal Evidence Act, 1999, says children
between ages 10 and 18 are capable of committing a crime and will be tried in a
separate court for youth. In exceptionally severe cases, a youth can be tried as an
adult in regular courts. x
Dutch courts allow a maximum of two years of detention for heinous crimes
committed by youth aged 16-18. Sometimes accused aged 19-21 are treated under
Juvenile Law. For children between 12-25, it is one year of Detention. In extreme
cases, juvenile court may apply adult criminal law for accused aged between 16-18.
Popularly known as the Facebook murder, a 17 year old boy and 16 year old girl in
Arhem plotted a contract killing on Facebook after they had a spat with the victim, a
15 year old girl, in January 2012. The accused were sentenced to two years in juvenile
prison and three years of compulsory therapy. The killer, who was 14, was sentenced
to one year in juvenile detention. xi
Page | 176
xiii
Even the subsequent petition submitted by Subramanian Swamy who asked the
judges to consider the mental and intellectual maturity rather than the age
especially when the young are involved in a very heinous crime was dismissed. xiv
In 2012, police in India charged 35,465 juveniles for alleged involvement in crimes
including banditry, murder, and rape and rioting, according to NCRBxv.
Among those who faced Juvenile Justice Boards in 2012, two thirds (66.6%) were
aged between 16 and 18 years, according to NCRB data The NCRB figures showed
that 30.9% were aged between 12 and 16 years old and the remainder, (2.5%,) were
aged between 7 and 12 years.xvi
Page | 177
Even noted Supreme Court lawyer K.T.S Tulsi believes Crime syndicates are taking
advantage of the juvenile age and increasingly involving younger boys in heinous
crimes and keeping them in the forefront, knowing fully well that they cannot be
punished.xviiThis trend will take dangerous proportions if the situation is not rectified
urgently. The Parliament needs to wake up to this as soon as possible and change the
law, reducing the juvenile age to at least 16. " The longer it takes, we allow more and
more young criminals to get away and free to commit crimes again" says Tulsi.
Page | 178
Figures on juvenile crimes by the National Crime Records Bureau (NCRB) reveal
that from 2002 to 2012, there has been a 143 per cent increase in the number of rapes
by juveniles. In the same period, figures of murders committed by minors went up by
87 per cent while there has been a whopping 500 per cent increase in the number of
kidnappings of women and girls by minors. xxii
"Though there has not been a rise in juvenile crime rates as such, there has been an
increase in the severity of the crimes committed by juveniles. Also the 17 year olds
are aware that they are juveniles and take advantage of the fact saying you cannot
take us in for questioning etc.", says Mumbai Joint Police commissioner Himanshu
Roy of the challenges the police is facing in tackling crimes by minors.
xxiii
That clearly is not enough says former IPS officer Kiran Bedi. "There is a need to
revisit the juvenile justice act. For heinous crimes like rape it should be left to the
judge to decide whether the act committed is committed by a child or not" she points
out. xxiv There has indeed been a massive outrage expressed from all sections of the
society.
are, yes they are convicted. No? Okay, we need to send them to a Reformatory home!
What we fail to realize in the process is that the condition of the victim is never ever
taken into notice. If it had been taken, Nirbhaya would have got justice long back.
Can a 17 year old be the most brutal among a group of 5 men and still have no
mental maturity to realize that what he was doing was wrong? You can never blame
poverty, lack of education and other factors as reasons to let go of criminal. Its times
we realize that we need to provide justice to the victims and not the criminals.
The mental maturity of the juvenile is to be judged on the fact if he was fully aware
and conscious during the execution of the crime. If not then an adult of the age of 35
who has committed a crime unintentionally should be tried at the juvenile court for
the reason that he was not mentally alert when he was committing the crime.
I would appeal that age is no reason to exempt somebody who has brutally raped and
been the reason for the death of a future Indian when he was completely aware and
conscious of what he was doing. A hard step now can be a warning to the many
young minds that grow up today and design their perspectives for tomorrow
Page | 180
considering the happenings of today. Lets all realise that death penalty is not killing
someone because the word itself creates wrong notions in peoples minds. What
death penalty is mere penalty to someone who has caused the death (physically
mentally or emotionally) of another person.
The system has become more and more sympathetic to the delinquent in spirit, and
anti-punitive in purpose. Lets come out of false hopes that India is going to be a
rape-free nation. If this were to happen, there would not have been thousands of
more rapes happening all over the country. Whats more thought-provoking is that
while I sit here writing this paper, deep in my heart I know another innocent girl is
being deprived of her Right to Life. Can we as able citizens of India allow this to
happen? When a juvenile commits a very brutal crime and poses a threat to society,
should he be protected on account of his age and freed from proper trial and
appropriate punishment?
In the case of juveniles caught in terrorist activities there is a reasonable argument
that they are also victims of terrorism in which they participate. Such crimes even we
logically anticipate are often because they are compelled to and sometimes they are
not even aware. Criminal gangs indulging in petty thefts to planned murder,
terrorists, drug traffickers and other international crime operators are not any agespecific groups.
Catch them young should be adopted in our justice system. The system has to
respond. It is not that we wish that children are hanged and inflicted with pain. There
are two major things. Firstly, law should be equal for everyone and anyone.
Secondly, this is only a means to protect children caught in the web of adult crimes,
and also save the society from all people with criminal instincts.
CONCLUSION
The heinous crimes such as rape, murder etc. are crimes which totally destroys the
moral of the victim's family and if it's a rape then it's a lifelong stigma for the girl
Page | 181
and her family member. We must understand about the pain and problems that she
goes through. The taunts and consequences she has to face in the process. Have we
ever thought about the turnover of events in her life after such a situation? Its time
rape is renamed as murder because in reality it is nothing less than that. It is worse.
When you murder someone you kill them in an instant. But when a girl is raped she
is scarred for life. She is killed emotionally, mentally and physically to such an extent
that many of times she regards suicide as the last resort. Is it justifiable to call it the
Juvenile justice system then when many offenders of these crimes walk free after
serving a minimal period of sentence after being proven juvenile as per the so called
records.
We know only some of the incidents which are put forward. Thanks to the ever lively
yet very exaggerating media of our country. We have no idea that there are lakhs of
cases unreported because of the stigma attached in our society. A girl abused is
regarded dead and not useful to the societys progress. Why? Obviously. Its her fault.
Its her fault that she stepped out of this free India. Its her fault that she tried to
exercise her rights in this so called democratic country. The juvenile who commits
crime of this gravity should not be left to walk free after serving maximum of 3 years
that too in special home.
We need to standardize the age of a child, create space for case-by-case interpretation.
We need to amend the Juvenile Justice Act in such a way that for severe and heinous
crimes juveniles must be tried as adults and ought to be given the same punishment.
If we believe in providing true justice to the victims of such incidents, we will start
with this little step to pave way for wonders to happen. And this is the voice of the
people at large. Because every human being in this country believes that Justice
delayed is Justice denied. It took all of us including the government one barbaric
rape case to question the Juvenile Justice system. The fallacies must be recognized
and removed. After all, lets remember, criminals do not fear life, they fear death.
Page | 182
REFERENCES
Apprentices Act, 1850,HELPLINE LAW,(Dec 15,2013,6:00 PM),
http://www.helplinelaw.com/docs/APPRENTICES%20ACT,%201850
ii
http://www.legalcrystal.com/acts/51765
Juvenile Justice(Care and Protection of Children) Act,2000, YALE LAW,(Dec 15,2013,6:30 PM),
iii
http://www.law.yale.edu/rcw/rcw/jurisdictions/assc/india/india_juv_just.pdf
iv
The Juvenile Justice(Care and Protection of Children ) Amendment Act, 2006,MINSTRY OF LAW
vi
http://www.childlineindia.org.in/Juvenile-Justice-Care-and-Protection-of-Children-Act-2000.htm
vii
viii
section-82/
Juvenile justice system in USA, AMERICAN BAR, (Dec 24,2013, 09:45 AM),
ix
http://www.americanbar.org/content/dam/aba/migrated/publiced/features/DYJpart1.authcheckdam.pdf
x
http://www.justice.gov.uk/about/yjb
xi
http://www.youthpolicy.nl/yp/Youth-Policy/Youth-Policy-subjects/Child-protection-andwelfare/Juvenile-justice-policy
xii
Juvenile justice system abetting crimes by minors? TIMES OF INDIA, (Dec 20,2013,09:00 AM),
http://articles.timesofindia.indiatimes.com/2013-09-22/people/42253034_1_juvenile-crime-juvenilejustice-act-juvenile-criminals
xiii
summary/
xiv
http://www.ndtv.com/article/india/amanat-case-board-dismisses-subramanian-swamy-s-plea-on-juvenileaccused-321836
xv
35,465 Juveniles arrested under IPC in 2012, HINDU, (Jan 1,2014,09:00 AM),
http://www.thehindu.com/news/national/35465-juveniles-arrested-under-ipc-in-2012/article4869193.ece
Page | 183
xvi
CII2012/Statistics2012.pdf
December 16 gang rape: Juvenile gets only 3 yrs. jail. Is the law good enough to handle such cases?,
xvii
5 Juveniles held in Gang rape, THE HINDU, (Dec 25, 2013, 08:00 AM),
http://www.thehindu.com/news/national/other-states/5-juveniles-held-for-gang-rape-inguwahati/article5137332.ece
xix
allegedly-gang-raped-by-friends-in-guwahati-accused-claim-to-be-minors-419629
xx
Gang Rape by minor boys, THE TIMES OF INDIA, (Dec 27, 2013,09:35 AM ),
http://articles.timesofindia.indiatimes.com/2013-09-17/guwahati/42147598_1_12-year-old-girl-policestation-five-boys
xxi
Of all Juvenile crimes, 64% by 16-18 years old, THE TIMES OF INDIA,(Dec 28,2013,09:00 PM),
http://articles.timesofindia.indiatimes.com/2013-01-06/india/36173359_1_juvenile-crimes-juvenilecriminals-reform-juveniles
xxii
Heinous crimes by minors on the rise, shows Ncrb data, NDTV, (Dec 24,2013,08:15 AM),
http://www.ndtv.com/article/india/heinous-crimes-by-minors-on-the-rise-shows-ncrb-data-415367
xxiii
http://articles.timesofindia.indiatimes.com/2013-12-02/mumbai/44656705_1_rti-application-nirbhayacase-shakti-mill
xxiv
Death Penalty true justice for humanity, IB TIMES ,(Dec 20,2013.08:15 PM),
http://www.ibtimes.co.in/politics-videos-news/282/nirbhaya-case-death-penalty-true-justice-forhumanity-says-kiran-bedi.htm
Page | 184
Page | 185
INTRODUCTION
The minimum age of criminal responsibility (MACR) is the age below which a
person is completely immune from any criminal liability due to lack of maturity and
judgement to understand the consequences of ones actions. Next comes the age
below which a person is considered vulnerable and immature and hence cannot be
made fully responsible for ones actions. This is the period of childhood and
adolescence and crime committed during this stage is dealt with by most nations
under special laws known as juvenile justice laws. Juvenile delinquency is on the
increase today and one of the major issues faced by the world. India is also struggling
with juveniles committing serious and grave offences. Thus arises the question if the
juvenile laws in the country are too soft and require improvements. How does one
ascertain the reasonable punishment for a child? How does one ensure deterrence as
well as restoration?
Page | 186
special provisions for them. Physical and mental immaturity and dependency on
others are the most outstanding features of childhood. iii India has fulfilled this
obligation by enacting the Juvenile Justice (Care and Protection for Children) Act,
2000 (JJ Act). A Juvenile is defined as a person who has not reached the age of 18 at
which one should be treated as an adult by the criminal justice system. iv The JJ Act
has set the age of criminal responsibility at 18 years or in other words it can deal with
offenders under the age of 18years. v This age has been set at 18 to bring it in
conformity with the definition of child under the UN Convention on the Rights of
Child.
The sentencing options available under the JJ Act include advice/admonition,
counselling, community service, payment of a fine or, at the most, or detention in a
remand home for a maximum period of three years.vi
Section 4 of the Act provides for setting up of a Juvenile Justice Board, consisting of a
Metropolitan Magistrate or a Judicial Magistrate of First Class, and 2 social workers
one of whom is a woman. Such Board/Bench has the same powers as conferred by the
CrPC on a Metropolitan Magistrate or a Judicial Magistrate of the First Class. The
trial of a juvenile shall be conducted before this Boardvii and even in cases where a
juvenile is produced before any other Magistrate; such Magistrate is required to
forward the juvenile to the Board. viii
The Act has also enacted provisions to ensure that proper and appropriate treatment
is meted out by the Police Authorities towards the accused juvenile. According to
Section 10 of the JJ Act, any juvenile in conflict with law who has been apprehended
by the police, should be placed under the charge of the Special Juvenile police unit or
the designated police officer who shall produce the juvenile before the Board within
a period of 24 hours.
The Act also provides for constitution of a Child Welfare Committee in every district
for the care, protection, development of children in need of care and protection. ix It
Page | 187
also provides for setting up of children homes, shelter homes and further makes
provisions for after-care to help them restore their regular life once they leave special
homes or children homes.x
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The jurisprudence underlying these legal texts is the legal philosophy that juveniles
lack the physical and mental maturity to take responsibility for their crimes, and
because their character is not fully developed, they still have the possibility of being
rehabilitated.xvi Children, as right holders have the right to be protected. Children
may not be able to exercise liberty rights; however, they do possess protection rights
such as right to education, health and public safety. Childhood is a concept that
bundles together ideas and expectations about young people and their role in
societies.xvii As such, its meaning is socially constructed and varies over time within
and across cultures, with no one universal meaning. xviii Different conceptions of
childhood then predispose people to understand, interpret, and address childrens
issues from different vantage points, including through the creation of legal norms
and standards about children. xix Thus, this translates into specific precise legal age
limits that mark the boundaries of childhood and adolescence. Children younger
than the prescribed age are considered legally incompetent. Since they dont exercise
any rights apart from protection rights, they also are not burdened with any form of
responsibility. Children progressively acquire liberty rights as they pass successive
age limits, each denoting legal competency and responsibility in different areas.
Examples include legal and medical counselling without parental consent, end of
compulsory education, marriage, sexual consent and the minimum age of criminal
responsibility.xx Typically, the age of majority in a given country is the final or nearly
final age limit, bringing adult rights and responsibilities in most contexts. This
approach is broadly reflected in the UN Convention on the Rights of Child.
Several other international legal instruments have commented on the minimum age
of criminal responsibility focusing on the protection of childs rights. These
Conventions include the International Covenant on Civil and Political Rights
(ICCPR), which though does not set out a specific age limit, imposes upon State the
responsibility to set a minimum age limit which is in conformity with internationally
recognised norms and is applicable to boys and girls alike. xxi The UN Standard
Minimum Rules for the Administration of Juvenile Justice also recognises the fact
Page | 189
the minimum age for criminal responsibility varies from place to place owing to
history and culture. However, it does assert that such age should not be fixed at too
low an age level, taking into consideration the facts of emotional, mental and
intellectual maturity. xxii The Beijing Rules further allow deprivation of liberty of
juvenile in case of an offence of serious and violent nature. The Convention against
Torture, 1984 has frequently expressed concern over age of criminal responsibility
being set at very low age levels like 7, 8 and 10 years.xxiii
luring her to a secluded place. When the girls mother rushed to her help on hearing
her wails, the boy escaped after hitting the woman.
However, activists say it would be prejudicial to treat all juveniles in conflict with law
as criminals. Many juvenile sex offenders are themselves first victims, particularly
street children and children in poor families would have been repeatedly abused by
others and turned into offenders over a period of time, says activist A Narayanan. xxv
Further, the maximum number of juveniles have been apprehended for the crime of
rape after theft and hurt. Juvenile between the age group of 16-18 years show
maximum increase in crime rate at 25% over the past 10 years. An overwhelming
majority from this age group has been held for the crimes of rape and murder. xxvi
The question whether young offenders accused of serious and heinous crimes should
be dealt by adult courts has many a times come before the Indian Courts in the past.
With regard to the Reformatory Schools Act, conflict arose on whether children
charged with death or life imprisonment should be dealt under this Act. The judicial
opinion differed here as some High Courts held that the Act could be applied in such
cases if the depravity was not innate, xxvii while others refused to apply it in view of the
nature of the offence. xxviii Under CrPC the question was whether the juvenile Court or
the Sessions Court had jurisdiction to deal with such cases and the controversy was
settled in favour of the exclusive jurisdiction of the juvenile court. xxix
A COMPARATIVE OUTLOOK
At this stage, it would be helpful to look at the juvenile laws of different countries
and minimum age of criminal responsibility set by their legislators. A study of
current MACRs worldwide shows that most countries have set the same at ages
between 7 to 14, however they have at the same time made provisions for special
treatment of offenders falling under the age of 18. Australia has several different
legislations and courts governing the juvenile justice in different regions. For
instance, in New South Wales, a person under the age of 18 and committing an
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offence is dealt by a Childrens court as per the provisions of the Young offenders
Act, 1997 and Children (Criminal Proceedings) Act, 1987. However, police charges
for very serious offences are dealt with by District Courts and Supreme Courts. The
sentencing options for a juvenile offender in Australia include a dismissal and/or
caution, a good behaviour bond with or without supervision, a fine, referral to a
youth justice conference, conditional or unconditional probation, a community
service order, or an order that confines a young person to a period to detention in a
juvenile justice centre.xxx Detainees 16 years and over, who are of high classification
can be transferred to the Department of Corrective Services (Kariong Juvenile
Correctional Centre). xxxi Australian legislation further provides for transfer of young
offenders over 18 years to an adult custody if they have a serious indictable offence
or in case he has committed an offence while in juvenile detention. xxxii Further,
Legislations in Victoria and Western Australia deal with offenders from ages 10-17
and 10-18 respectively.xxxiii The Juvenile Justice system also provides several support
and rehabilitation services to the young offenders such as post-release support
services, group conferences, legal aid, intensive supervision programs for repeat
offenders and others. Under the South Australian Young Offenders Act, 1993 the
police is allowed to issue formal and informal cautions minus any court intervention.
Informal cautions are for minor offences and in case of a serious offences, the
offender may be referred to family conferences. Thus, Australia all in all provides for
several sentencing options taking into consideration the age, maturity and nature of
offence and also aims at maintaining as much normalcy as possible in the lives of the
young offenders. In UK, the Youth Justice and Criminal Evidence Act, 1999 deals
with young offenders under the age of 18. Youth Courts have the power to give
Detention and Training Orders of up to 24 months, as well as a range of sentences in
the community. Youth courts are essentially private places and members of the
public are not allowed in. xxxiv In cases of minor offences or where the offender
commits a crime for the first time, the same can be dealt by the Police or the local
authority themselves in order to stop young people getting sucked into the youth
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justice system too early. The measures that can be taken by the Police include
reprimanding, issuing a final warning or Anti-Social behaviour Order or imposing a
local child curfew. Courts can also order a sentence in the Community rehabilitation
Centre, Community punishment Centre or impose a fine. Special provisions have
been provided for young offenders committing murder or other specified serious
offences which are punishable with imprisonment of 14 years or more. Such
offenders may be detained upto the adult maximum for the offence and under such
conditions as the Secretary of State deems suitable. xxxv The length, period and nature
of sentence may vary with each case taking into consideration the specific facts and
in certain cases a offender may be shifted to adult custody after attaining 18 years of
age. In US, the first juvenile court in the was established in Cook County, Illinois, in
1899 and within a few years juvenile court laws had been passed in each of the states.
The legal doctrine of "parens patriae" formed the foundation of juvenile courts and
meant that the State was given the authority to make decisions for the benefit of the
child as a parent would.
On the heels of the In re Gault xxxvi decision, the U.S. Congress passed the Juvenile
Delinquency
Prevention
and
Control
Act
in
1968. In
1974,
further protections for youth were added in Act. This Act does allow detention of
juvenile offenders in adult jails in certain circumstances. xxxvii In most U.S. States, the
jurisdiction of juvenile courts is automatically waived when a juvenile above a
certain age, usually 13 or 15, commits a violent or other serious crime, and the case is
automatically transferred to adult court. A certification hearing takes place and an
adult court prosecutor is required to convince the adult court that the case should be
transferred. For instance, in countries like Indiana, South Dakota and Vermont,
children as young as 10 can be tried as adults. Californias Proposition 21 which was
passed in 2000 allows prosecutors to automatically try juveniles who commit felonies
as adults.xxxviii Several countries in Latin America and Caribbean have ratified the UN
Convention on Child Rights in the last decade and set up a juvenile justice system for
protection of young offenders, those under the age of 18. xxxix The Youth Criminal
Page | 193
Justice Act, 2003 was passed by the Government in Canada to restore the public
confidence in the youth justice system. It allows imposition of adult sentences on
most serious juvenile offenders.xl
CONCLUSION
Taking all of the above factors and elements into consideration, the issue at hand
remains that India is indeed facing an increase in youth crime which covers not just
minor offences but also grave and heinous offences. The Nirbhaya case caused a
shock wave in the entire nation outraging many including me. As tempted as I am to
say that offenders committing offences of such gravity, irrespective of whether they
are juvenile or adult should be harshly punished, it seems this is not the ideal
solution to the problem. One shocking incident should not result in adaption of
measures which might later emerge counter-productive. For instance, in the James
Bulger case of 1993 in UK where two 11-year old charged with murdering a toddler
had been tried in an adult court and sentenced to minimum of 8 years of
imprisonment which was later increased to 10 years. The shock and outrage caused
by the incident resulted in the public demanding for life imprisonment for the
Page | 195
offenders. The Home Secretary ultimately succumbed to the pressure increasing the
sentence to 15 years. Later, the sentence was greatly criticised by the ECHR stating
the 2 boys had received a fair trial. They were paroled in 2001, when they both turned
18 and by then UK had a juvenile justice system in place. xlvii Indian Legislators
should not make a similar mistake due to public pressure and need to make a well
thought out decision. However, the past incidents and increasing reports of youth
crime do indicate the need for a change. The youth crime rate in India may not be as
large as in other countries however; the same is also not going down. It would be a
wise step to take preventive steps from itself. The Beijing Rules allows the signatories
to make special provisions for serious and grave offences. Countries like UK,
Australia and US also have allowed special provisions for serious offences like
murder, sexual assault, rape and others. India can also follow on similar lines because
even if the main objective of the juvenile law is welfare and restoration, at the end of
the day every law should have a deterrent effect. If a law begins to lose the element
of deterrence, it will no longer stay effective. Further, in cases of juveniles it is easier
to reform them when they first show anti-social behaviour rather than when they
become hard-earned criminals. India should allow more serious punishment or
longer periods of duration for children committing serious offences in the bracket of
16-18 years especially. They need not be tried as adults, but under the juvenile act
itself special provisions can be be made. They can be sentenced to detention in
juvenile justice centres away from adult prisons. Once they have attained the age of
18 and the sentence is still pending, they can be transferred to adult custody. The
juvenile law in Australia is modelled on these lines. Maturity of child offender can
also be used as a yardstick in certain cases. Stricter punishments will definitely
sacrifice on certain child rights such as education and affect their future, but one
cannot deny that change is the need of the hour and India cannot afford to see more
incidents like Nirbhaya.
Page | 196
REFERENCES
i
ii
iii
VED KUMARI, THE JUVENILE JUSTICE SYSTEM IN INDIA: FROM WELFARE TO RIGHTS, 11
vi
vii
viii
ix
xi
xii
xiii
xiv
xv
xvi
2014) <http://www.thehindu.com/opinion/lead/balancing-the-juvenile-act/article5107620.ece>
Barry Goldson, Childhood: An Introduction to Historical and Theoretical Analyses , in Phil
xvii
Scraton, ed., Childhood in Crisis? (London University College London Press) (1997)
xviii
Bob Franklin, Childrens rights and media wrongs: changing representations of children and the
developing rights agenda, in Bob Franklin, ed., The new Handbook of Childrens Rights: The
Comparative Policy and Practice and Practice (London, Routledge) (2002)
xix
Jo Boyden, Childhood and the Policy Makers: A Comparative Perspective on the Globalisation of
Childhood, in James Allison, and Alan Prout, eds, Constructing and Reconstructing Childhood:
Contemporary Challenges in the Sociological Study of Childhood (London, Falmer Press) (1997)
xx
DON CRIPANI,
THE
MINIMUM
AGE OF
CRIMINAL
Manfred Nowak, U.N Covenant on Civil and Policitcal Rights: CCPR Commentary , Kehl (Germany),
N. P Engel (1993)
xxii
Article 4, UN Standard Minimum Rules for the Administration of Juvenile Justice, 1985
Page | 197
xxiii
Concluding Observations: Yemen, CAT/C/CR/31/4, 5 Feb 2004, pars. 6(1) and 7(I); Indonesia,
Crime in India: Statistics, (National Crime Records Bureau) (2011) (January 15, 2014)
xxiv
<http://ncrb.nic.in/CD-CII2011/Statistics2011.pdf>
xxv
J Santosh, NCRB Report: 1316 Juveniles booked for rape last year, THE NEW INDIAN EXPRESS,
xxvi
xxviii
xxix
xxx
xxxi
xxxii
xxxiii
xxxiv
Ian Blakeman, The Youth Justice System of England and Wales , 139th International Training
xxxvi
xxxvii
xxxviii
Aparna Vishwanathan, Balancing the Juvenile Act, THE HINDU, September 9, 2013, (January 15,
2014) <http://www.thehindu.com/opinion/lead/balancing-the-juvenile-act/article5107620.ece>
xxxix
UNICEF, Juvenile Justice System: Good Practices in Latin America , 2006 (January 15,
2014)<http://www.unicef.org/lac/JUSTICIA_PENALingles.pdf>
xl
Julian V. Roberts, Nicholas Bala, Peter J. Carrington, Evaluating the Criminal Justice Act After 5
Years: A Qualified Success, Canadian Journal of Criminology and Criminal Justice, Vol 32, 133 (April
2009)
xli
Dhananjay Mohapatra, Should juvenile Maturity be yardstick in trials, asks SC, TIMES OF INDIA,
Himanshi Dhawani, Child rights panel against treating juveniles as adults , TIMES OF INDIA,
December 3, 2013
Page | 198
xliii
xliv
Kunal Ambasta, Retribution is not justice, THE INDIAN EXPRESS, Dec 4, 2013 (January 15, 2014)
<http://archive.indianexpress.com/news/retribution-is-not-justice/1202935/1>
xlv
Crime and Punishment: Age reduction: Risky Affair, Express News Service, Dec 21 2013, (January
15,
2014)<http://www.newindianexpress.com/cities/chennai/Crime-and-Punishment-Age-Reduction-
Risky-Affair/2013/12/21/article1956931.ece>
xlvi
Joseph A. Wickliffe, Why Juveniles Commit crimes, Yale New Haven Teachers Institute, (January
15, 2014)<http://www.yale.edu/ynhti/curriculum/units/2000/2/00.02.07.x.html>
xlvii
Erin Keeley, Around the World: Juvenile Sentencing in the UK , Childrens Legal Rights Journal,
Page | 199
CASE COMMENT
Lafarge Umiam Mining Private Limited v. Union of India.vii As per the section 3(2) viii
of the Environment (Protection) Act, 1986(hereinafter, The EPA, 1986) the Central
Government has the power to take necessary measures so as to protect and improve
the environment. In order to execute the legislative directions stated in the section 3
(2) of the EPA .1986, the Central Government may appoint an authority if it is
warranted. The same is very evident from the section 3 (3) of the EPA 1986, which
reads as follows:
proper utilisation of natural resources. In addition to this, the Court formulated some
guidelines to be followed with respect future cases.
In the present case, the issues before the court includes:
1. Whether the guidelines which include appointing a regulator at the national
level along with state level subordinates are advisory or mandatory in nature?
2. Whether section 2 of the Forest (Conservation) Act, 1980(hereinafter
FCA,1980) should be read with section 3 of the EPA ,1986 and the Forest
Policy, 1988?
With respect to the first issue, as state above, while reading the statutory provision i.e.,
section 3 of the EPA, 1986, one may come to a logical conclusion that it is the duty of
the Central Government to appoint an authority under section 3(3) for the purpose of
discharging the duties envisaged in section 3(3) of the Act. Sub section 2 of section 3
is having many dimensions. Environmental Impact Assessment is one among them
and important aspect too. In Lafarge Umiam Mining case, the Supreme Court of
India noticed the lacunae in the existing EIA mechanism as notified in 2006ix and
directed the Central Government to have an efficient system to be put in place for
the future approvals. While holding the view, the Supreme Court expressed the
inability of the adjudicating forums to look into all the spheres of the problems
comprehensively. However, it is very well possible, if there would be a regulator with
a special mandate for the same. Therefore, the Supreme Court directed the Central
government to appoint an authority i.e., a regulator. The same reasoning is extracted
here as follows:
(i.2.) The difference between a regulator and a court must be kept in mind.
The court/tribunal is basically an authority which reacts to a given situation
brought to its notice whereas a regulator is a proactive body with the power
conferred upon it to frame statutory rules and Regulations. The regulatory
mechanism warrants open discussion, public participation and circulation of
the draft paper inviting suggestions.
Page | 202
(i.3.) The basic objectives of the National Forest Policy, 1988 include positive
and proactive steps to be taken. These include maintenance of
environmental stability through preservation, restoration of ecological
balance that has been adversely disturbed by serious depletion of forests,
conservation of natural heritage of the country by preserving the remaining
natural forests with the vast variety of flora and fauna, checking soil erosion
and denudation in the catchment areas, checking the extension of sand
dunes, increasing the forest/tree cover in the country and encouraging
efficient utilisation of forest produce and maximising substitution of wood.
(i.4.)
Thus,
we
are
of
the
view
that under
Section 3(3) of
National
Regulator
for
appraising
projects,
enforcing
will help to bring out more transparency in the environmental decision making
process and the project clearance process too. If we look at this decision from the
ongoing coal allocation and other mining issues context, it is one of the important
decisions to ensure more transparency in future allocations and clearances.
Likewise, as far as the second issue is concerned, the court rightly has restricted its
interpretation and held that section 2 of the FCA, 1980 is different from section 3 of
the EPA, 1986. By this interpretation, the court has ensured a space for the political
executives with respect to the clearances for forest land conversion.
REFERENCES
. See M.C.Mehta v. Union of India, AIR 1987 SC 1086 (Oleum Gas Leakage Case)
. See Vellore Citizens Welfare Forum v. Union of India, AIR 1996 SC 2715
iii
. Like Peoples Union for Civil Liberty, Narmadha Batcho Andolan, etc.,
iv
. Like Vellore Citizens Welfare Forum
i
ii
Page | 205
Page | 206
. It was held: The time has come for this Court to declare and we hereby declare that the National
Forest Policy, 1988 which lays down far-reaching principles must necessarily govern the grant of
permissions under Section 2 of the Forest (Conservation) Act, 1980 as the same provides the road map
to ecological protection and improvement under the Environment (Protection) Act, 1986. The
principles/guidelines mentioned in the National Forest Policy, 1988 should be read as part of the
provisions of the Environment (Protection) Act, 1986 read together with the Forest (Conservation) Act,
1980. This direction is required to be given because there is no machinery even today established for
implementation of the said National Forest Policy, 1988 read with the Forest (Conservation) Act, 1980.
Section 3 of the Environment (Protection) Act, 1986 confers a power coupled with duty and, thus, it is
incumbent on the Central Government, as hereinafter indicated, to appoint an appropriate authority,
preferably in the form of regulator, at the State and at the Central level for ensuring implementation
of the National Forest Policy, 1988.
xii
. Supra n.1 page no. 2
Page | 207
AKASH KUMAR__________________________________________________________
Assistant Professor, School of Law, MATS University, Raipur, Chhattisgarh, India
ANAND PAWAR__________________________________________________________
Associate Professor of Law, Rajiv Gandhi National University of Law, Patiala, Punjab
M SAKTHIVEL ___________________________________________________________
Assistant Professor, University School of Law and Legal Studies, Guru Gobind Singh
Indraprastha University, New Delhi, India
PRERNA__________________________________________________________________
Student, School of Law, Christ University, Bangalore
SHUBHANGI _____________________________________________________________
Student, Gujarat National Law School, Ahmedabad
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