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PUBLISHED BIANNUALY

VOLUME: 2
ISSUE: ONE
YEAR: 2014

ISSN: 2321 - 3787

First Issue

ROSTRUMs
LAW REVIEW

ISSN: 2321 - 3787

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A DIVISION OF ALKEMIA LEGAL EDUCATION VENTURES PVT. LTD.

ROSTRUMs LAW REVIEW

Volume : II

Issue: I

ONE - June - 2014

Mode of Citation: RLR (1) 2014


Editorial Advisor

Prof. (Dr.) G. P. Tripathi


Director, MATS Law School, Raipur, Chhattisgarh, India
Guest Editor

Dr. Dayananda Murthy C.P.


Head, Academic Affairs
Damodaram Sanjivayya National Law University,
Visakhapatanam, Andhra Pradesh, India
General Editor

Dr. Debasis Poddar


Assistant Professor of Law
National University of Study and Research in Law,
Ranchi, Jharkhand, India
Managing Editor

Anurag Parihar
CEO, Alkemia Legal Education Ventures Pvt. Ltd.
Associate Editor

Aounkar Anand
COO, Alkemia Legal Education Ventures Pvt. Ltd.

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TABLE OF CONTENTS
FOREWORD BY PROF. (DR.) A LAKSHMINATH

NOTE FROM THE DESK OF GUEST EDITOR


DAYANANDA MURTHY C.P

II

A. SPECIAL ARTICLE:
MENTAL CRUELTY A MECHANISM FOR DIVORCE: AN ANALYSIS OF JUDICIAL
INTERPRETATION
ANAND PAWAR

01

THE ROLE OF ROUTE OPTIMIZATION IN MITIGATION OF AIRCRAFT


EMISSIONS AND INCREASING ENERGY EFFICIENCY
AKASH KUMAR

11

B. ARTICLES:
THE ENVIRONMENT IMPACT ASSESSMENT MECHANISM OF INDIA
BHAGIRATH ASHIYA

31

VIOLENCE AGAINST WOMEN THE DARK SIDE OF FAMILIES


RICHA KASHYAP

AND

VIVEK SAURAV

52

POLICING PRIVACY: REGULATING INFORMATION DISSEMINATION


BETWEEN THE MEDIA AND THE POLICE
ALWYN AND PRERNA

66

PROTECTION OF MEDICINAL PLANTS


ANIRUDDHA KUMAR AND AASTHA TIWARI

83

RHETORIC CONCEPT OF NON- LETHAL WEAPONS UNTOUCHED BY


INTERNATIONAL LAW
H ARSHAD KAPOOR

95

ANONYMITY AND REGULATIONS A BITCOINS PERSPECTIVE


KARTIK CHAWLA

108

LEGALIZING GAMBLING IN INDIA: TACKLING MATCH-FIXING BY THE


REGULATION OF SPORTS-BETTING
MAYANK SAMUEL

122

DECRIMINALIZATION OF CANNABIS IN INDIA


N ARESH GUPTA

139

COST OF CORRUPTING CORRUPTION


DOES

CANCELLING

2G

LICENSES

CONSTITUTE

EXPROPRIATION

ACTIONABLE UNDER INTERNATIONAL INVESTMENT LAW?


SHUBHANGI

158

JUVENILE JUSTICE: IS AGE LIMIT THE RIGHT CRITERIA TO DEMARCATE A


PERSON FROM GETTING PROPER PUNISHMENT?
SNEHA PRIYA Y ANAPPA

173

THE MINIMUM AGE OF CRIMINAL RESPONSIBILITY IN INDIA: IS IT TO BE


BLAMED FOR THE INCREASING YOUTH CRIME?
STUTI BHATIA

185

B. CASE COMMENTS:
T.N. GODAVARMAN THIRUMULPAD VERSUS UNION OF INDIA
M SAKTHIVEL

200

F. I NTRODUCTION TO CONTRIBUTORS

FOREWORD

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FROM THE DESK OF GUEST EDITOR


It gives me prodigious pleasure to be a part of illustrious
legacy which was preceded by imminent scholar like Prof.
(Dr.) G. P. Tripathi. As the broad spectrum of journal is
interdisciplinary, it is praiseworthy, for the acceptance of
liberal approach in terms of research methodology and
citation. In the macrocosm of academics there is an
unconstrained flow of knowledge from every direction. This
knowledge can be enliven and beguile in various forms. Essay competition is one
such form where the enunciation of knowledge comes dexterously and its fervently
maturates the writing skills of a person. It is a passage to nurture the writing skills.
The journal deserves a commendable acclamation, as it has kept its boundaries wide
enough to encompass the distinct subject matter. The genre of journal is different as
it also accentuates the need of translation of vernacular literature into English. Any
journal can thrive only with the ardour of reader, contributors and the entire
editorial team. It is the continuous strive for the best of quality that takes the journal
to new heights.
With this message there is a great expectation as well as responsibility on my part to
take the journal to new heights, where authors and readers can quench their thrust
for knowledge. I hope this volume will invigorate the mind of readers and bring the
desired result.

Dr. Dayananda Murthy C.P


Head, Academic Affairs
DSNLU, Visakhapatnam

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MENTAL CRUELTY A MECHANISM


FOR DIVORCE: AN ANALYSIS OF
JUDICIAL INTERPRETATION
DR. ANAND PAWAR
I must be cruel only to be kind;
Thus bad begins, and worse remains behind.
-William

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;

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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

INTERPRETATION OF CRUELTY IN ENGLISH LAW


The English courts in plethora of judicial decisions, tried to give a comprehensive
definition that may cover all incidents, acts, provocation, etc. related to cruelty.
Prominent amongst them is the Sheldon v. Sheldon iii , wherein Lord Denning
observed that the categories of cruelty are not closed. Lord Evershed, with the
approval of Lord Merriman in Simpson v. Simpsoniv, observed that;

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
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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;

It is undesirable, if not impossible, to create categories of acts or conduct as having


or lacking the nature or quality which render them capable or incapable in all
circumstances amounting to mental cruelty. In Thomas v. Thomasvi Lord Simon
observed that,
The leading judicial authorities in both countries who have dealt with this subject
are careful not to speak in too precise and absolute terms, for the circumstances
which might conceivably arise in an unhappy married life are infinitely various.
The House of Lords in the case of Gollins v. Gollins vii , further diffused the
interpretation of mental cruelty. Now the only requirement was that the conduct
complained of should have been grave and weighty or grave and substantial to
warrant the description of being cruel. No specific test could be laid down to
determine mental cruelty. Thus, the English Law in this regard is fairly settled
that each case is to be adjudicated by the Judges by the special set of facts before
them.
Under the Hindu Marriage Act, 1955, as enacted originally, though cruelty was one
of the grounds for obtaining judicial separation but it was not a ground for
obtaining divorce. The word cruelty was not defined in the Act but in Section 10
which dealt with judicial separation. The word cruelty was used in a restricting
sense because it was provided that either party to a marriage may present petition
praying for a decree for judicial separation on the ground that the other party has
treated the petitioner with such cruelty as to cause a reasonable apprehension in
the mind of the petitioner that it will be harmful or injurious for the petitioner to
live with the other party.
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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.

I. CRUELTY AGAINST WOMEN UNDER THE FAMILY LAW


The term cruelty is very wide in its application. Cruelty can be physical as well as
mental cruelty.xii Mental cruelty is defined as the acute mental pain, agony and
suffering as would not make possible for either parties to live with each other. xiii
There cannot be a straitjacket formula or fixed parameters for determining mental
cruelty.xiv
Prior to the amendment made in Section 10 of the Hindu Marriage Act, the concept
of cruelty, as it was stated in the old Section 10 (I) (b), was critically examined by the
Supreme Court in Dastane v. Dastanexv. It was therein observed that the enquiry in
any case covered by that provision had to be whether the conduct charged as cruelty
is of such a character as to cause in the mind of the petitioner a reasonable
apprehension that it will be harmful or injurious for the petitioner to live with the
respondent. It was also pointed out that it was not necessary, as under the English
Law, that the cruelty must be of such a character as to cause danger to life, limb or
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health or to give rise to the reasonable apprehension of such a danger, though, of


course its being harmful or Injurious to health, reputation, working character or the
like, would be an important consideration in determining whether the conduct of the
respondent amounted to cruelty. What was required was that the petitioner must
prove that the respondent has treated the petitioner with such cruelty as to cause
reasonable apprehension in the mind of the petitioner that it will be harmful or
injurious for the petitioner to live with the respondent.
Now after the amendment in Sections 10 and 13 made by the Parliament in the year
1976, cruelty has been made a ground for judicial separation and for divorce without
putting any statutory rider. There is now no requirement of law that the party
seeking divorce on the ground of cruelty must prove that the respondent had
persistently and repeatedly treated the petitioner with cruelty. Further, the petitioner
has also not to prove that he/she was treated with such cruelty as to cause a
reasonable apprehension in his/her mind that it will be harmful or injurious to
him/her to live with the other party. Now the scheme appears to be to give liberal
interpretation to the provisions relating to judicial separation and divorce. In the
statement of Objects and Reasons of the Marriage Laws (Amendment) Act, 1976 also,
the object was stated to be so xvi.
The Hindu Marriage Act u/s 13 (1) (ia) provides cruelty as a ground for dissolution
of marriage by a decree of divorce. The Act stipulates that the decree of divorce can
be obtained if the spouse has treated the petitioner with cruelty. The term cruelty
has not been defined under the Act. However, it refers to such a course of conduct
of one spouse that creates such anguish that it endangers the life, physical health or
mental health of the other spouse.xvii
In Shobha Rani v. Madhukar Reddi xviii the Apex Court observed that the term
cruelty under the Act shall be used in reference to matrimonial duties and
obligations of the person. It is the conduct of the one which is adversely affecting
the other, constitutes cruelty.
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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

THE ACT CAUSING DEPRESSION TO SPOUSE AMOUNTS TO


MENTAL CRUELTY
The term cruelty is very wide in its application. Cruelty can be physical as well as
mental cruelty.xxi Mental cruelty is defined as the acute mental pain, agony and
suffering as would not make possible for either parties to live with each other. xxii
There cannot be a straitjacket formula or fixed parameters for determining mental
cruelty.xxiii
Cruelty postulates a treatment of the petitioner with such cruelty as to cause a
reasonable apprehension in his or her mind that it would be harmful or injurious
for the petitioner to live with the other party. Cruelty, however, has to be
distinguished from the ordinary wear and tear of family life. xxiv It cannot be decided
on the basis of the sensitivity of the petitioner and has to be adjudged on the basis
of the course of conduct which would, in general, be dangerous for a spouse to live
with the other.xxv
Mental cruelty is determined as course of unprovoked conduct toward ones spouse
which causes humiliation, embarrassment and anguish so as to render the spouses
life miserable and unendurable. xxvi The honble Apex Court has held that whether
an act constitutes cruelty or not shall be determined on the basis of the facts of the
case in the light of the education, status and life style of the spouses.xxvii

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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.

II. JUDICIAL INTERPRETATION OF MENTAL CRUELTY AGAINST


HUSBAND
Though cases filed by wife against husband and in-laws under Domestic Violence
Act and 498-A of Indian Penal Code to claim maintenance and divorce are
increasing day by day but all complaints are not filed with bonafide intension.
Freedoms of education, job opportunities, economic independence and social
attitude have brought tremendous change in the status of women. Though it is the
women who have always been subjected to be tortured and harassed by the
husband and relatives, in fact saying this will not be proper as cases of torture and
harassment against the husband by the wife is increasing day by day. Under the
Hindu Marriage Act the concept of cruelty as a ground for divorce can be pleaded
by either spouse, but the burden of proof lies on the spouse who is subject of
cruelty.
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Considering the misuse of those legislative provisions provided for security of


women in society are in various cases misused as weapon to unleash personal
vendetta on their husbands and innocent relatives and there are certain grounds on
which cruelty against husband can be proved xxxii.
There are many instance in which the honorable judiciary has considered the
different acts of a wife under the Hindu marriage Act held as cruel to the husband.
In Kalpana v. Surendranathxxxiii it has been observed that where a wife who refuses
to prepare tea for the husbands friends and the frequent insults on various occasion
was considered by the court as cruelty to husband. In Anil Bharadwaj v Nimlesh
Bharadwajxxxiv the wife who refuses to have sexual intercourse with the husband
without giving any reason was proved as sufficient ground which amounts to
cruelty against husband. In a recent case of Mrs. Deepalakshmi Saehia Zingade v.
Sachi Rameshrao Zingadexxxv petitioners wife filed a false case against her husband
on the ground of Husband Having Girl Friend which is proved as false in a court
of law which was considered to be cruelty against husband. The cited cases are few
instances to relay and confirm the changing trend of cruelty as a ground to claim
for divorce with strong notion that it is used in specific cases and misused generally
by spouses.

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

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destroying real purpose and object of matrimony. It would of course be difficult to


define the expression, there cannot be any hard and fast rule in interpreting cruelty
and therefore the term can not be put in a water tight compartment. It must be
judged on the facts of each case having regard to the surrounding circumstances.
Whether one spouse is guilty of cruelty is essentially a question of fact and
previously decided cases have little value. But the concern in this era of modern
matrimony is, how to strengthen the institution of marriage, where relations are
considered as formality and what should be the mechanism to vigor the family
values in the upcoming generation, where spouses are not ready to accept
challenges of modern life. Recent trends in matrimonial cases have shown a shift
from traditional divorce to fabricated divorce on baseless grounds, and for which to
prove their personal affiliation rather priorities sometime they exaggerate to take
the plea of either dimension of cruelty. The judiciary is only a hope in this regard
to suggest or formulate an apparatus by which the real intension of the parties can
be judged.

REFERENCES
i

Vinita Saxena v. Pankaj Pandit, (2006) 3 SCC 778


Halsburys Laws of England, Vol.13, 4th Edition Para 1269
iii
(1966) 2 All ER 257
iv
(1951) 1 All ER 955, p 958
v
(1952) AC 525, p 545 See also Evans v. Evans [1965] 2 All ER 789
vi
(1947) 1 All E.R. 582 at p. 585
vii
(1962]) 3 All ER 897
viii
Sec. 13- Any marriage solemnized, whether before or after the commencement of this Act, may, on
a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the
ground that the other party(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty;
ix
N. Nandi, Encyclopedia of Hindu Law, Dwivedi Law Agency, Allahabad, 3rd Ed. 2013(Reprint). p720
x
A. Jayachandra v. Aneel Kaur, AIR 2005 SC 534; Prakash v. Kavita, AIR 2008 Raj 111
xi
Section 27 of The Special Marriage Act, 1954, provides for 12 grounds for divorce. One of them is
cruelty, Section 2 of The Dissolution of Muslim Marriages Act, 1939 also provides for dissolution of
the marriage on the ground of cruelty, Section 32 of The Parsi Marriage and Divorce Act, 1936,
provides for 11 grounds for divorce. One of them is cruelty, Section 10 of The Indian Divorce Act,
1869, provides for 7 grounds of dissolution of marriage of Christians. One of them is adultery coupled
with cruelty.
xii
A. Jayachandra v. Aneel Kaur, A.I.R. 2005 S.C. 534.
xiii
V. Bhagat v. Mrs. D. Bhagat A.I.R. 1994 S.C. 710.
ii

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xiv

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

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THE ROLE OF ROUTE OPTIMIZATION IN


MITIGATION OF AIRCRAFT EMISSIONS AND
INCREASING ENERGY EFFICIENCY
AKASH KUMAR
ABSTRACT
Environmental concerns in aviation have been a widely discussed agenda in many of
the international meetings throughout the world in the bilateral or multilateral talks.
Emission from aviation currently account for 3.5 % of the total anthropogenic
radiates which is anticipated to rise to as much as 15% by 2050, if no further
organizational measures are taken to decrease these emissions. Delays caused by
congestion in the air traffic at the various airports across the globe are one of the
major sources of environmental pollution and also the unnecessary cost to airlines,
passengers, and businesses dependent on aviation transportation. Aircraft due to this
reason are frequently forced to fly at such a different cruise altitude and/or the cruise
speed for which for which they are not designed. This results in unnecessary fuel
burn and hence the related gaseous emission which rises environmental concerns
both at the local and global levels. This article addresses the role of route
optimization in the raised concerns of aircraft emissions and the fuel costs. It outlines
the ways it can be addressed at various levels like route optimization at operational
level, aircraft designing to suit a particular flying route at manufacturing level and
at the level of air traffic management. The accuracy in the flight plan also forms a
part of the route optimization programme.

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
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energy sources together with an effective and efficient balanced approach to


simultaneously address environmental impacts of aviation related to noise, air
quality, and climate change in a manner which is reliable and cost-beneficial.
However despite the recent instability and volatility being there in this sector, it is
expected that this commercial aviation market would recover in no time and would
experience a rapid and continued growth. Therefore, the associated impacts of
aviation on environment are also set to become a major concern in the near future
particularly absence of effective measures aimed at its mitigation. The principal
concern in that also is going to be the issues regarding air quality and climate
change and its impact on human health and environment. In the event of the
emissions from non-aviation sources decreasing at faster rate, the contribution from
aviation sector in terms of emissions of air pollutants may relatively increase and
become a major concern.i
The process of route optimization in a flight plan not only involves taking into
account the correct calculations of aircraft performance and weather conditions, but
also includes route restrictions imposed by controllers of air traffic in various air
spaces and the other relevant regulatory restrictions. ii For the calculation of an
optimal flight plan and route aimed at cutting fuel costs and emissions includes
scheming multiple flight routes or approaches to flight operations for each flight,
ranking them in order of the total costs involved, choosing the most cost effective
plan and providing summaries of the other scenarios for operational flexibility. iii The
process of route optimization can be challenging as it involves numerous different
elements and the best flight route depends on various factors and the actual
conditions of each flight. These factors includes the forecast of the upper air currents
and temperature, the amount of payload, and the time-based costs on that particular
day. The time-based costs are especially dynamic, as they are driven by again
different factors which include payload value, schedule and operational limitations
for the crew and the airplane.

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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.

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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
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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

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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

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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

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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
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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
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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

THE IMPORTANCE OF ACCURACY IN FLIGHT PLANS


Fuel consumption and costs can be greatly reduced also by improving on the flight
plans in terms of their accuracy. This means having accurate flight plans and having
a calculated plan for integration with other systems and data systems through
accurate engineering and information. The flights can make use of the accurate fuel
requirements so as to avoid carrying extra fuel by carrying just the fuel they need to
complete the flight. For that there has to regular inputs of flight information,
weather conditions together with calculated and accurate algorithms and advanced
engineering to select the best flight plans, routs, requirements and to integrate with
systems both inside and outside the aircraft.

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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.

a global goal of 2 % annual improvement in fuel efficiency until the year

2050, and further exploration of the feasibility of more ambitious medium and longterm goals, including carbon-neutral growth and emissions reductions;
b.

development of a global CO2 Standard for aircraft and facilitation of further

operational changes to reduce aviation emissions;


c.

development of a framework for market-based measures in international

aviation;
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d.

further elaboration on measures to assist developing States and to facilitate

access to financial resources, technology transfer and capacity building; and


e.

submission of States' action plans, outlining their policies and actions, and

annual reporting of data to ICAO on their aviation fuel consumption.


International Civil Aviation Organization (ICAO) is the principal organization that
requires the airlines to adhere to the environmental certification standards adopted
by its Council. It promotes the safe and orderly development of the international civil
aviation and its standards and regulations throughout the world The ICAO Council's
Committee on Aviation Environmental Protection (CAEP) conducts the majority of
ICAO's environmental technical work and has worked to develop a range of
Standards to address aircraft noise, aircraft emissions and local air quality. These
rules and standards are contained in Annex 16 (Environmental Protection) to the
Convention on International Civil Aviation. The Annexure presently has two
volumes outlining separate standards for aircraft noise and aircraft engine emissions
respectively.

These

regulations

have been framed keeping

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

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In a recent step by the ICAO under the Committee on Aviation Environmental


Protection (CAEP) process, the organization has commenced an effort to establish
environmental objectives, medium and long term in nature relating to three types of
technologies in the area of noise, NOx emissions and fuel burns. Additionally the
segment of the expected impacts of such long and medium term measures for the
improvements in emissions and noise control is also underway. This whole process is
being led by panel of independent experts from across the globe to ensure
transparency and involvement of all stakeholders in aviation industry. The aim of the
whole process is to set goals so as to provide the R&D industries with a reasonable
stretch working in cooperation with states to meet the set targets.xxiv
A breakthrough in CO2 emissions was achieved with the establishment of the
worldwide Aircraft CO2 emissions Standard in the wake of CAEP reaching a
unanimous agreement for the reinforcement of CO 2 standards. The emission
standard was reached on 11 July 2012. It came out with a CO 2 metric system for
emissions which represents the CO 2 emissions produced by the aircraft. The emission
system is intended to rightfully reward advancements in aircraft technologies (i.e.
structural, propulsion and aerodynamic) which results in the reduction of CO 2
emissions at the different stages of the flight. The emissions standard adopted thus
accommodates full range of technological advancements which can be employed by
the manufacturers to reduce the CO 2 emissions. The CO2 metric system is based on
three fundamentals associated with the aircraft technology and design: these are
namely cruise point fuel burn performance; aircraft size; and Aircraft weight.
The CAEP after the implementation of this decision on CO 2 metric system plans to
move to the next phases of developing the ICAO CO 2 emission standards. The further
stages include defining the procedures for certification for each of the factors in the
metric system agreed by the nations together with the determination of the
applicability of the new standards. After that the next stage is the framing of the
regulatory limits of CO2 emissions using the standards of ICAO for technical

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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

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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
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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
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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

R. Deehan. Remarks. Greater Miami Chamber of Commerce Transportation


Summit Miami, Florida, November 29, 2006

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

India's Aviation Industry: An Overview by The MITRE Corporation/CAASD,


2009

Arushi, Stefan Drews, Aviation and Environment, A Working Paper, Centre for
Science and Environment, June 2011.

Fuel saving contributing to a sustainable air transport development, ATR


Customer Services, January 2011

ICAO Environmental Report 2010, Aviation and Climate Change, available at


www.icao.int/environmental.../ENV_Report_2010.pdf.

Air Transport Action Group (ATAG) 2010, Beginner's Guide to Aviation


Efficiency www.enviro.aero.

ICAO, 2009, Measures Adopted by Civil Aviation Sector in India presented at


High-Level Meeting on International Aviation and Climate Change, Montreal

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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

Figure 2: Total aircraft fuel burn, 2006 to 2050.

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Source: ICAO Environmental report 2010

Figure 3: Commercial aircraft fuel efficiency (CASFE) Fuel-Flight results


Source: ICAO Environmental report 2010
i

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.
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xiv

Dr Christian N. Jardine 2005, Calculating the Environmental Impact of Aviation emissions,

Environmental Change Institute, Oxford University Centre for the Environment


xv
Ibid.
xvi
Ibid.
xvii
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
xviii
Dr. Kota Harinarayana, 2010, Green Aviation presented in February at New Delhi
xix
Air Transport Action Group (ATAG) 2010, Beginner's Guide to Aviation Efficiency www.enviro.aero.
xx
ICAO, 2009, Measures Adopted by Civil Aviation Sector in India presented at High-Level
Meeting on International Aviation and Climate Change, Montreal
xxi
Ibid.
xxii
ICAO, 2010, Environmental Report 2010, Chapter 2
xxiii
Aircraft CO2 emissions standard metric system, ICAO fact sheet, available at
http://www.icao.int/environmental-protection/Documents/CO2%20Metric%20System%20%20Information%20Sheet.pdf
xxiv
Technology Standards, Certification Standards and Technology Goals, availabl at
http://www.icao.int/environmental-protection/Pages/technology-standards.aspx
xxv
Technology Standards, Certification Standards and Technology Goals, availabl at
http://www.icao.int/environmental-protection/Pages/technology-standards.aspx
xxvi
Arushi, Stefan Drews, Aviation and Environment, A Working Paper, Centre for Science and
Environment, June 2011
xxvii
IATA 2007, State of the Air Transport Industry64th Annual General Meeting, Montreal
xxviii
Ibid.
xxix
Air Transport Action Group (ATAG) 2010, Beginner's Guide to Aviation Efficiency
www.enviro.aero.
xxxwww.aspire-green.com
xxxi
India's Aviation Industry: An Overview by The MITRE Corporation/CAASD, 2009
xxxii
Ibid.
xxxiii
Arushi, Stefan Drews, Aviation and Environment, A Working Paper, Centre for Science and
Environment, June 2011
xxxiv
India's Aviation Industry: An Overview by The MITRE Corporation/CAASD, 2009

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THE ENVIRONMENT IMPACT ASSESSMENT


MECHANISM OF INDIA: THE NEED FOR
REFORM AND THE SHIFT TOWARDS THE
ESSENCE OF SUSTAINABLE DEVELOPMENT
BHAGIRATH ASHIYA
Keywords: Environment Impact Assessment, Sustainable Development, Strategic
Environment Assessment, Public Participation
Earth provides enough to satisfy every mans need; but not every mans greed
- Mahatma Gandhii

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
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following an ineffective method of assessment, on which depend the livelihood and


future of the society. The urgency is not only with regard to a shift from EIAs, but a
structural reform in their functioning and the integration of practices that exist
throughout the world in stark contrast to the EIA mechanism prevalent in the Indian
scenario.

THE EVOLUTION OF EIA MECHANISM IN INDIA


The concern for environmental protection in India can be traced back to the ancient
period, where it was the dharma of the individual to protect nature. ii The very
principle of sustainable development, finds mention in the Atharva Veda, where the
sages chanted
What of thee I dig out
Let that quickly grow over
Let me not hit thy vital, or
Thy heartiii
The quintessential issues, which culminate into a challenge of reconciliation, concern
the values of economic growth, social vitality and ecological integrity.

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
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the approach to sustainable development. The reconciliatory mechanism required to


balance these divergent interests, has evolved in the form of an Environment Impact
Assessment (EIA). The legal conception of sustainable development xi and the EIA
apparatus can be summarized as a precautionary principle, where it is better to err on
the side of precaution and prevent irreversible environmental harm.xii

THE MONOPOLISTIC ALLOCATION OF POWER TO THE MINISTRY


OF ENVIRONMENT AND
NEED FOR

FORESTS: THE APPARENT FLAW AND THE

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
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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.

THE PROBLEMS: THE FLAWS OF EIA IN INDIA AND THE POLICY OF


EXCLUSION
The EIA notification of 2006 with the objective of re-orienting the assessment process
in India, in contradictory terms closely re-aligned and modelled the notification of
2006 on the recommendations of the Govindarajan Committee. Thus the rationality
of diluting the process of the safeguards provided under the notification of 2006 from
that of 1994, becomes clear as the government grapples with the idea of creating an
investment friendly climate.
The EIA notification of 2006 superseded the 1994 notification, whilst inculcating new
objectives of devolution of powers to the state governments, reduction in procedural
intricacies and a liberalized policy in contrast to the executives notified and amended
predecessors. The donor agencies operating in India like the World Bank and the
Asian Development Bank operate through a different set of requirements for
granting environmental clearance for the projects that are directly funded by these
agencies.xxiv The procedural formalities have created an obtrusive ineffective process
resulting in political and corporate interest creating a form of green tapism in the
clearance procedure.The much-needed public participation is also reduced with the
exclusion of Panchayats in public hearing panels, which was provided for under the
notification of 1994. xxv The role of the local governance bodies in policy and decisionmaking process is excluded from the scope of consultation in the EIA notification of
2006. The Panchayat Raj Act, 1992, Nagarpalika Act, 1992 and the Schedule Tribes
and other Traditional Forest Dwellers Act, 2006, clearly provides for the role of local
bodies in social and economic planning. xxvi Thus the EIA notification of 2006 in many
ways excludes the local participation by this policy of exclusion. The exclusion of
Railways and irrigation projects from the ambit of the safeguard provided by the
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compulsory performance of Environment Impact Assessment is contrary to


established international practices.xxvii In contrast to the Indian position, EIA directive
of the European Unionxxviii provides for obligatory assessment for railway projects as
it clearly impacts the environment. The deficiency of reliable data sources and the
credibility of the primary data attenuate the very concept of quality EIA reports. xxix
The discretion granted to the bureaucracy by the way of delegation without any
safeguards and accountability creates inefficiency and abuse of power. The
bureaucratic stranglehold of this essential process of balancing interests, results in
corrupt, prejudicial and ineffective decisions.

THE PROCEDURE AND THE ELEMENTS OF THE EIA PROCESS: THE


LACUNAE IN ENFORCEMENT OF THE LAW
The global system that has emerged is based on the fundamental premise of
economic growth as the fundamental principle. The slight deviation being the
introduction of sustainable development as one of the subsidiary aims xxx within the
states agenda of economy over ecology and equity. xxxi The kind of cost-benefit
analysis approach that has put a price tag on each and every resource culminates to a
shift from a market economy to a market society. Thus when environmental costs
emerge in the arrangement of economic calculations, the basis for the value
judgment is the monetary value assigned. xxxii The Indian approach to environmental
governance lacks in the manner of its implementation policy. The fundamental
function of regulation lies in its capacity to contribute to the balancing of interests
and resolution of conflicts in society. xxxiii The brazen discretionary powers granted to
the officials, neither does justice to the needs of the environment as well as
development. In the Philip Hampton Report on Reducing Administrative Burdens,
has identified that regulators should use risk assessment in the form of eliminating
unnecessary inspections and shift focus towards compliance. xxxiv
The EIA notification of 2006 brought about considerable changes, which ensued a
deliberate compromise of prerequisites such as public participation and transparent
decision-making. xxxv The notification envisages the hierarchical stage of clearance
process, beginning with screening and then scoping, public consultation, appraisal. It
involves the project proponent who applies for the terms of reference from the
concerned authorities at the central or state level. xxxvi The minutes of the public
consultation hearings are sent to the Expert Appraisal Committee (EAC) of the MoEF
for Appraisal.xxxvii The major problem with the EIA process includes the quality of
data that is utilized in arriving at decisions for grant of clearance of potentially
harmful industries. The entire collection of data is dependent upon the project
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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

impact studies were made

by the

Ministry of Environment and Forests (MoEF) or by any organization under it or at


least by agencies appointed and recommended by it. xxxix The MoEF has taken
measures with regard to procedural checks such as granting environmental
clearance when EIA reports are prepared by an accredited consultant and requiring
clearance before initiation of any construction activity. These reforms do not in any
manner address the issue of pecuniary influence that might result in the assessment
report as being financed by the project proponent. This accreditation body Quality
Council of India (QCI) which is bestowed with the task of providing accrediting
accurate consultant agencies is jointly partnered by the Government of India (GoI)
and the Indian industry. xl This process of rubber stamping whilst industrialists having
a substantial interest in the outcome of the process, defeats the very objective of the
accreditation process. The MoEF presented this process as a solution to the inaccurate
and misrepresented data projected by the consultants but financed by project
proponents. In the United States the NEPA requires the Environment Impact
Statement (EIS) to be formulated by the concerned agency of the government. In this
endeavour the agency can employ private consultants in preparing the EIS. The role
of the agency is also clearly determined with the responsibility of the content lying
with the agency. xli The problem in India can be remedied through a specialized
agency similar to the United States but independent of political or complete
bureaucratic control considering India ranking 94th in the Corruption Perception
Index ratings 2012. xlii This problem is also compounded by the fact that the
composition of the Expert Appraisal Committee (EAC) is mainly a bureaucratic
undertaking xliii , with the no involvement of environmentalists and civil society
members. The EIA notification of 1994 provided for an independent ecologist and
environmentalist as part of the EAC. xliv The enforcement mechanism is also fairly
ambiguous with no clear procedure for the penalties and when clearance can be
revoked.xlv There is also no clarity with regard to the role and powers of the EAC, in
case its recommendations are amended or overturned without following the
provisions of Para 8 (ii) of the notification. xlvi Thus there is a lack of suo moto
authority to insist upon the implementation of the recommendations.

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The application of the EIA process is based on the principle of a pre-emptive


approach and the mitigation out of effective alternatives to ecologically harmful
activities. This approach is ineffectual when the rationality caters only to
development. The mind frame that exists among the people, that taking socioeconomic conditions into consideration will hamper economic growth can lead to a
misdirected attempt at rapid development. The projects that the government takes
must also be subject to cost benefit analysis, as decision-making tool of sustainable
development. The stance taken by the government in cases of infrastructure projects
involving large-scale public investment excludes a number of polluting industries
whilst providing exemptions to some industries. The very idea of having a predetermined list with an exclusive rather than inclusive policy defeats the entire
purpose of assessing the impact on the environment. The EIA norms have been
amended for almost fourteen times and mostly in the favour of the project
proponents and scarcely for the sake of the environment. xlvii This continued flexibility
afforded to the MoEF to notify changes almost antithetical to previous notification
defeats the objectivity of an environment friendly notification. The composition of
the EAC has also been compromised by the inclusion of the term professionals in
contrast to the EIA notification, 1994, which provides for members who are
environmentalists or civil society representatives. xlviii In the European Union the,
competent authorities decide the decisions with regard to the requirement of an EIA,
after seeking advice from the developer and NGOs. In the case of most developed
countries the screening process is well established on the basis of clear scrutiny
rather than having a pre-determined list as in the case of India. xlix The ineffective
mechanism of dealing with the issues of the environment has also led to judicial
directives, which have clarified the position of law as well as set guidelines for the
implementation of the judicial recommendations. The problem with the functioning
of the MoEF and the executive decisions in various cases have led to the judiciary
reprimanding these bodies for their inability to meet statutory obligations. l The
proposition for a national policy and effective public participation li, to regulate the
environmentallii, still lack the political and societal will in its implementation.

THE STAKEHOLDERS: THE ESSENCE OF PUBLIC PARTICIPATION


AND ITS REQUIREMENT IN THE EIA PROCESS
The World Commission on Environment and Development, in its 1987 report has
concluded that the objective of social justice cannot be achieved without an equitable
sharing of the cost and benefits of environmental protection. liii The realization of
distributive justice cannot be rendered through ineffective apparatuses of the law,
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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
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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.

THE ALTERNATIVE: STRATEGIC ENVIRONMENT ASSESSMENT


The EIA process in India has not resulted in an effective form of environmental
accountinglxxi, where an integration of the myriad forms of policy issues is necessary.
The standard has been that of a shift in the focus from a bureaucratic clearance
procedure to that of providing a fast track clearance mechanism. The accurate data
on investments and costs provides an accurate measure of the conservation initiatives
required from the corporations.

lxxii

The environmental accounting of the UN

Statistical Commission, that is undertaken in the form of a SEAA System of


Integrated Environmental and Economic Accounting takes into account the natural
assets and provides a framework for integrated sustainable development. lxxiii Thus
such methodologies narrow the ambiguities lxxiv, which lie in formulating an operative
national policy on the environment. The Smith Study of 1974 utilized 10 criterions
for the evaluation of a number of EIA methodologies, lxxv which have not been
completely implemented in the Indian scenario.
The certainty of punishment deters the perpetrators of the crime, rather than acting
as a mere acceptable risk. The post- clearance stage enforcement mechanism in
India, suffers from the flaw of a wide array of regulatory agencies, from which
require various clearance procedures. The discretionary functioning must be made
answerable and the intervention of political representatives barred lxxvi, so that there is
specific accountability for the grant of clearances. The ineffectiveness of the
environmental laws in India, can be deduced from the constant amendments to
various legislations such as the Environment Impact Assessment notification, The
Water Act and the Air Act. lxxvii The environmental laws should shift the focus from
the entirely preventive methodology towards an integrated punitive approach.
The shift from Environment Impact Assessment (EIA) to Strategic Environment
Assessment (SEA) does not classify as a mere change in terminology, but a stark
difference in approach towards balancing the interests and needs of the society. One
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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.

THE GREED OVER THE N EED


The scrutiny of different methodological approaches to implementing the principle
of sustainable development, gives rise to two models of the EIA approach, i.e the
mandatory model and the discretionary model. lxxxv The classification is based on the
scope and nature of discretion granted over the procedures for EIA, which are
governed by a specific or delegated legislation. lxxxvi The Indian model concerns the
discretionary model, which provides less accountability, stability and transparency in
comparison to the mandatory model. The shift to such a model would invigorate the
essence of sustainable development, as there would be much to practice than preach
the prevalent ostensible process of EIA in India. lxxxvii There is a pressing necessity to
appositely amend the anti pollution Acts and the EIA Notification, thus
encompassing all development projects.

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As Ramachandra Guha rightly states that In its countrywide implications the


environmental problem is every bit as serious as the Kasmiri Dispute or the fiscal
crisis of the State.lxxxviii Though such issues concern the masses, the sensitivity to such
issues has hardly garnered the recognition by the intelligentsia and poorly acted
upon by the political class. Thus the fundamental right to a healthy environment lxxxix
cannot be realized until EIAs dont conform to international standards, xc not only in
principle but also in practice.

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
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state governments, which is a welcome step towards the devolution of monopolistic


like powers conferred upon the MoEF and the central executive. This step brings into
line the division of powers under the concurrent list under the seventh schedule,
which includes subjects such as protection of wildlife, mines and minerals and
forests. Although this devolution is devoid of any substantial change as it acts in a
counterproductive manner, when local bodies are excluded from the decision
making process.
The problem in India with regard to EIA, not only occur at the implementation stage
but rather concern the entire setup and the purpose with which environmental issues
are raised in society. The need for a shift from the prevalent mechanism of balancing
interests through the EIA process has raised mass criticism due to the inherent
inefficiencies and flaws in implementation. The process of change in the Indian
scenario can only be expected when there is at least a change in the political,
bureaucratic and societal mind set towards the phenomenal importance of the
environment towards sustainable growth. The needs of the environment are in some
manner considered as an impediment to growth, especially in a developing nation
such as India. Thus there is always a requirement for an industrial friendly
environment policy, which would promote investment and development. The
question that society needs to answer is whether a compromise is made in the
environmental policy to suit the needs of the developing nation? The stark reality is
that environment policy is never dealt as a political issue but only as a form of
appeasement of Indias commitment to its international obligations and projecting
growth based on sustainability. The NEPA in the United States was enacted as result
of mass agitation while in India it resulted as form of corrective policy as fallout of
the aftermath of the Bhopal gas tragedy. Thus the environment has never been a poll
issue but rather a policy decision by the executive while evading the scrutiny of the
Parliament. The point, at which India can scrutinize its own EIA without effectual
comparison with other forms of EIA implementation, then can only there be a shift
in the process of assessment. The need in India is to shift from the bureaucratic and
executive hold over the EIA process to a transparent mechanism for a separate
regulatory body, which makes decisions independent of the political and industrial
lobbyist pressures. There is also a much-desired need for a form of sensitization of
the accrued benefits that result out of an environment impact assessment report,
rather than the demonization of the entire mechanism. The environmental education
that is imparted to students creates highly aware and participative citizenry in the
field of environmental activism.

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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.
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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

must also gain political and social sanction. The


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environmental jurisprudence in India has also developed as a result of the creative


judicial interpretation in line with the constitutional objectives and international
obligations of advocating a healthy environment. The judicial check on the clearance
process has provided ample guidelines and orders to restore the purpose of EIA
within the flawed process of its implementation. Thus an effective judicial check
cannot function when the political will is lacking over creating a definite and
unambiguous legislation, as an antidote to the venom of inefficient and corrupt
practices. In the DTC case the court stated that There is only a complacent
presumption that those who occupy high posts have a high sense of responsibility.
The presumption is neither legal nor rational. History does not support it and reality
does not warrant it. cii This presumption of the executive performing its necessary
duties does not provide an overarching truth to the present situation of Indias
environmental concerns. The number of EIA scams and inadequate EIA reports
presents the grim reality with which greed has overtaken the need for sustainable
development. A country like India cannot wait for the eventual working of the
Environmental Kuznets Curve, as the other developing countries might think of as
an eventual outcome. Environmental quality is a matter of social choice and societies
may differ, in their reviews as to what constitutes an "acceptable" level of
environmental quality.ciii The Indian perception must change to realize the value of
the environment, where one cannot subsidize growth.
As John Maynard Keynes once said Long run is a misleading guide to current affairs.
In the long run we are all dead, this statement aptly applies to the mind set and the
dilemma people face over the allocation of resources in society. The long run, as is
the case of Environment Impact Assessment, discerns the future as well as current
benefits, but the onus of implementing this safeguard on exploitation requires the
will of the government as well as the concern of the people.

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Ibid at 25.

xxvi
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xxxi

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xxxii

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xxxiv

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xxxv

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xli

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xlii

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xliii

The Sarpanch, Grampanchayat v. Ministry of Environment and Forests, NGT (2011) Appeal No.2.

xliv

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(http://www.ercindia.org/ 2010) <www.ercindia.org/.../EIA%20Reform%20paper%20for%20WGEEP.doc>


accessed 1 January 2014.
xlv

Supra note 26.

xlvi

Ritwick Dutta, 'Expert Appraisal Committee (EAC) Role and Effectiveness [2012] ERC 1, 9.

xlvii

Parna Mukherjee, 'EIA Scams: Decaying the EIA Legal Regime in India' [2012] JERD 43, 7.

xlviii

Ritwick Dutta and R. Sreedhar, 'A Framework for EIA reforms in the Western Ghats'

(http://www.ercindia.org/ 2010) <www.ercindia.org/.../EIA%20Reform%20paper%20for%20WGEEP.doc>


accessed January 4 2014.
xlix

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'

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l

Vellore Citizens Welfare Forum v. Union of India [1996] 1 SC 2715 (SC); M.C Mehta v. Union of India

[1997] 1 AIR 734 (SC).


li

Narmada Bachao Andolan v. Union of India AIR 2000 SC 3751.

lii

M.C Mehta v. Union of India AIR 1987 SC 965.

liii

World Commission on Environment and Development, Our Common Future 1987, p. 46-50.

liv

Article 19, Universal Declaration of Human Rights,1948.

lv

Article 25, International Covenant on Civil and Political Rights, 1966.

lvi

Article 23, American Convention on Human Rights, 1969.

lvii

Jonas Ebbesson and Phoebe Okowa (2009).Environemntal Law and Justice in context. 1st edition

.New York: Cambridge University Press. p.212.


lviii

Brian D. Clark, Improving Public Participation in Environmental Impact Assessment Built

Environment (1978-), Vol. 20, No. 4), pp. 294-98.


lix

The Oxford handbook of International Environmental Law, Daniel Bodansky, Jutta Brunnee and

Ellen Hey, Oxford University Press 2007 New York p. 687.


lx

Vishwambhar Prasad Sati, An Introduction to the Environment : Rawat Publications 2012, New Delhi

p. 230-234.
lxi

Raghav Gaiha, Use of Local Knowledge in Impact Assessment: Evidence from Rural India

Economic and Political Weekly, Vol. 39, No. 40 (2004), pp. 4471-4477,78-79.
lxii

An Introduction to the Environment : Vishwambhar Prasad Sati Rawat Publications 2012 New Delhi

p. 230-234.
lxiii

Roma Mukherjee, Environmental Management and Awareness Issues, Sterling Publishers 2002

New Delhi p. 193.

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lxiv

Arjya B. Majumdar, Debosmita Nandy, Swayambhu Mukherjee, Environment and Wildlife Laws in

India, LexisNexis first ed. New Delhi 2013 p. 138.


lxv

Medha Patkar & Anr. v. Ministry of Environment and Forests & Ors., NGT (2013) Appeal No.1.

lxvi

Jan Chetna and Another v. Ministry of Environment and Others [2012] 1 28 (NGT).

lxvii

Dinesh Trivedi MP and Others v. Union of India and Others [1974] 4 SCC 306 (SC).

lxviii

Seema Kumar, 'Indias Environmental Impact Assessment Process & Failure to Protect the Yamuna

River

from

the

Thirst

of

Development'

(www.earthtrends.wri.org

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<http://www.earthtrends.wri.org/blog/2008/10/india%E2%80%99s-environmental-impact-assessmentprocess-failure-protect-yamuna-river-thirst-dev> accessed 8 January 2014.


lxix

South Asia Network on Dams, Rivers and People, 'EIA Process in Large Hydro Power Projects:

Critical Weaknesses and Public concerns' (www.sandrp.in 2006) <http://sandrp.in/> accessed 7 January
2014.
lxx

Ritu Paliwal, 'EIA practice in India and its evaluation using SWOT analysis' [2006] EIAR 492, 506.

lxxi

G.Y Shitole and Ram Sable, Environmental Degradation: Issues and Challenges, 2012 Global

Research Publications p. 2-3.


lxxii

Ibid at 8.

lxxiii

N Das Gupta ,Environmental Accounting, Wheeler Publishing 1997 first edition New Delhi p. 11-

12.
lxxiv

Siri Kalnins, An International Assessment of Environmental Impact Assessment,Ambio, Vol. 9,

No. 3/4, The Baltic (1980), p. 197.


lxxv

Maurice L. Warner and Edward H. Preston, A Review of Environment Impact Assessment

Methodologies, 1974 , National Service Center for Environmental Publications , Washington p. 18.
lxxvi

N. Bhaskara Rao , Good Governance: Delivering Corruption- Free Public Services, Sage

Publications India New Delhi 2013, p. 234.


lxxvii

Abhijit Dutta Sunita Dutta P.N Pandey, Environment Issues and Challenges, A.H.P Publishing

Corporation New Delhi 2005, p. 89.


lxxviii

United Nations Development Programme, 'EIA Training Resource Manual' (www.unep.com 2002)

<http://www.unep.ch/etu/publications/EIAman_2edition_toc.htm> accessed 4 January 2014.


lxxix

B. Sadler, Handbook of environmental impact assessment framework for environmental,

sustainability assessment and assurance (1st, Oxford, London 1999) p. 12-29.


lxxx

Rajiv Bhatia and Aaron Wernham Integrating Human Health into Environmental Impact

Assessment: An Unrealized Opportunity for Environmental Health and Justice, Environmental Health
Perspectives, Vol. 116, No. 8 (Aug., 2008), p. 993.

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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

Paper Conference on International experience and perspectives in SEA International Association of


Impact Assessment26-30 September 2005, Prague.
lxxxiii

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,

No. 4, (1994), p. 278.


lxxxv

P. Leelakrishnan (2009).Environmental Law in India. 3rd edition .New Delhi: Lexis Nexis . 315.

lxxxvi

Ibid at 317.

lxxxvii

Sukh Pal Singh, Environmental Management through Environment Impact Assessment, 31

Ban.L.J.(2002) p.129.
lxxxviii

Ramachandra Guha How Much Should a Person Consume ? Thinking through the Environment

Permanent Black 2006 New Delhi, p.70.


lxxxix

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

T. N Godavarman Thirumulpad v. Union of India [1997] 3 SCC 312 (SC).

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

M.C Mehta v. Union of India [1997] 1 AIR 734 (SC).


Kanchi

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(www.civilsocietyonline.com

2013)

<http://www.civilsocietyonline.com/pages/Details.aspx?304> accessed 8 January 2014.


xcvi

D. Nagasaila and V. Suresh, 'Kudankulam on shaky legal ground' (www.thehindu.com 2012)

<http://www.thehindu.com/todays-paper/tp-opinion/kudankulam-on-shaky-legalground/article4065720.ece> accessed 11 January 2014.


xcvii

Lafarge Umiam Mining Pvt. Ltd. v. Union of India [2010] 1 W.P (C) No. 202 I.A No 2609-2610 (SC).

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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

Steve Vanderheiden, Atmospheric Justice: A Political Theory of Climate Change (Oxford

University Press, New York, 2008) p.132.


c

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.

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VIOLENCE AGAINST WOMEN THE DARK


SIDE OF FAMILIES
RICHA KASHYAP & VIVEK SAURAV
Keywords: Sexual Violence, Family Violence, Criminal Law, Massive-Overhauling.

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.

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SEXUAL VIOLENCE CONCEPT AND DETERMINANTS


Of all the evils for which man has made himself responsible, none is so degrading,
so shocking or so brutal as his abuse of the better half of humanity; the female sex.
- Mahatma Gandhi

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
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allowed to make a choice regarding the marriage partner. Third is repressive

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

THE CONCEPT OF GENDER VIOLENCE


The addition of gender dimension to violence implies that violence, which is
perpetrated on women because of their womanhood. The General Recommendation
19 adopted in 11th session of the Convention on Elimination of All Forms of
Discrimination Against Women ( CEDAW), in 1992, describes gender violence as
follow:
Violence which is directed against a women because she is a women or which
effects women disproportionately. It includes acts, which inflict physical, mental
or sexual harm or suffering, threats of such acts, coercion, and other deprivation
of liberty.
In a landmark resolution 48/104, adopted by the UN General Assembly at its 48 th
session, in December 1993 Declaration on the Elimination of Violence against
Women- violence against women is defined as:
Any act of gender based violence that results in, or is likely to result in, physical,
sexual or psychological harm or suffering to women, including threats of such
acts, coercion or arbitrary deprivation of liberty, whether occurring in public or
private life. vi
Gender Violence permeates through the past into the future creating a timelessness
afloat into the realities of womens existence. Centurys old brutal expressions of
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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.

SEXUAL VIOLENCE OCCURRING IN THE FAMILY


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.
However, the family may be a cradle of violence for the women who are subjected to
violence at home.ix Throughout the world there are practices in the family that are
violent towards women and harmful to their health. Family Violence is generally
hidden under the notions of intimacy of private sphere as the belief that family
integrity should be protected at all costs prevent many women from seeking outside
help.x The law and criminal justice system generally do not recognize sexual violence
occurring in the family as a separate crime, hence such cases are rarely prosecuted
and the women have no option, but to suffer in silence. Much of the violence against
Indian women is in the form of domestic violence, dowry deaths, acid attacks, honor
killings, rape, abduction, and cruelty by husbands and in-laws. xi Due to high
preference by husband and in-laws for male children rather than female children
every two hours in India, a Woman Dies from an abortion worldwide. xii In 2012,
according to the National Crime Records Bureau (NCRB), dowry deaths or murders
of women by the groom or in-laws because of unmet high dowry expectations
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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
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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

According to the WHO one in every 10 Children is sexually

abused, often by a family member.


Victims of Incest suffer from extreme physical and psychological disorders. Often the
Psychological problem that crop up due to incestuous abuse, have long term effect
and decapicitate the victim from indulging in other relationships normally. Incest is
always accompanied by a deep sense of betrayal of trust and helplessness, which
disables the sufferer from forming normal sexual and emotional bonds in the
relationships.
3. MARITAL RAPE
In a majority of the countries in the world; husbands enjoy criminal law immunity
for raping their wives.

Marital Rape has existed as long as the institution of

marriage. xviii According to a US Sexual Assault Information Sheet, one in seven


women reported that they had been raped by their husbands. xix Rape in marriage is
vastly unrecognized by the legal systems all over the world. This legal reluctance is
the product of the social notion that the wives are the properties of their husbands.
To be more precise, viewing of wife as the sexual property of the husband is the
inevitable heritage of a patriarchal society.xx The Verma Committee suggested that
marital rape should be recognized as a criminal offence but the suggestion was
opposed by all major Indian political parties. xxi
4. CHILD MARRIAGES
In developing countries, girls are often wed even before attaining the age of puberty.
The low age of marriage is one of the factors which contribute to the severe
violations of human rights of women. According to WHO report, over 50 percent of

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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

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of violence. International law and conventions also support an individual's right to


self-determination, minimum marriage ages and the rejection of abuse of women
and honor based violence. xxix
6. RAPE
Rape is the most pervasive form of sexual violence, which cuts across state borders
and cultures, used in all countries and in all cultures as weapons of degradation and
terror against women. Rape is an intrusion into the most private and intimate parts of
a womans body as well as assault on the core of her self.xxx Rape is the desire for
power (to dominate, subordinate, control) and feelings of hostility (contempt, anger)
are vented out on the victims, transforming them from persons to objects and often
plunging them into a rape crisis syndromexxxi A womans risk of being raped by
someone, she knows is four times greater than being raped by a stranger. xxxii But such
incidents of the crime of rape remains vastly underreported because victims fear
from being re-victimized in the criminal justice system, of not being believed, guilt,
self-blame and from failure of the rape victims to equate their humiliating
experience with the legal definition of rape. There are various incidents of rapes
done by family members like father, brother, uncles etc but remains unreported.
Recently in north Kerala's Kannur district, a father, brother and an uncle of a 13 yearold girl were arrested for allegedly raping the minor for the past two years. The
victim has also told the police that her elder sister, who had committed suicide two
years ago, had also been raped. xxxiii In yet another shocking incident of child rape in
Kerala, the girl was first raped by a neighbour with her mother's connivance when
she was only 11 years. This was followed by her father allegedly raping her several
times.xxxiv
About a 1,000 rape cases were registered last year in Mumbai with home as the place
of crime. The figure, released by the CID, was about 200 more than in 2011. Going by
the CID's data, home is the most unsafe place for a woman. xxxv

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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
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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
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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

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a person for an offence, as well options which emphasize family violence on


sentencing.xlviii

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

(Margaret Schuller eds., 1992).


iv
Sandy Cook & Judith Bessant, Womens Encounters with Violence- Australian Eperience 8 (Sage
Series on violence Against Women eds., 1977).
v
vi

Dr. Vandana, Sexual Violence against Women 39 (Lexis Nexis)


Art. 1, United Nations Declaration on the Elimination of Violence against Women, 1993

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

Perspective - Violence against Women 9 (2003)


xi

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.

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xxii

Ms Radhika Coomarswamy, Preliminary Report submitted by UN Special Rapporteur on Violence

Against Women, Its Causes and Consequences para 165 (1994)


xxiii

Aarti Dhar, Prevent child marriages on Akshaya Tritiya, THE HINDU April 22, 2012 available at

http://www.thehindu.com/news/national/article3340183.ece (last visited on Dec. 23, 2013 at 11:00 hrs.)


xxiv
There are 17 signatories and 49 parties to the convention.
xxv
Art.1, Convention on Consent to Marriage, Minimum Age for marriage and Registration of
Marriage, 1962
xxvi
Id., Article 2.
xxvii

United Nations Population Fund, The State of World Population-The Right to Choose:

Reproductive Rights and Reproductive Health 40 (1997).


xxviii
Ms. Radhika Commaraswamy, Report of the UN Special Rappoorteur on Violence Against
Women, Its Causes and Consequences, on Cultural Practices in the Family that are Violent Towards
Women 40 (2002)
Shahid Dastgir Khan, Forced Marriages Violation of a Human Right, THE ASIANS Nov.12, 2011
available at http://theasians.co.uk/story/20111112_forcedmarriages_humanrights (last visited on Dec.
xxix

29, 2013 at 13:00 hrs.)


xxx
Ms Radhika Coomarswamy, UN Report of the Special Rapporteur on Violence Against Women, Its
Causes and Consequenses, on Violence in Community 5 (1997); see also Gail Abarbanel and Gloria
Richman, The Rape Victim, Rape Treatment Center, Santa Monica Hospital 1 (1989)
xxxi
Andrew Karmen, The Criminal Justice System and Women-Offenders, Victims & Worker 186
(Barbara Price and Natalie j Sokoloff eds., 1982).
xxxii
Ms Radhika Coomarswamy, UN Report of the Special Rapporteur on Violence Against Women, Its

Causes and Consequences, on Violence in Community 6 (1997).


xxxiii
Press Trust of India, 13-year-old girl raped by father, brother, uncle for two years in Kerala , THE
TIMES
OF
INDIA
Kozhikode
Nov.
26,
2012
available
at
http://articles.timesofindia.indiatimes.com/2012-11-26/kozhikode/35365814_1_minor-sisters-shockingcase-juvenile-home (last visited on Dec. 10, 2013 at 9:30 hrs.).
xxxiv
Press Trust of India Kannur, Kerala: Minor raped by father, others for six years , THE
HINDUSTAN TIMES July 19, 2013 available at http://www.hindustantimes.com/india-news/keralaminor-raped-by-father-others-for-six-years/article1-1094940.aspx (last visited on Dec. 10, 2013 at 08:00
hrs.)
xxxv
V Narayan, Home most unsafe place for women, THE TIMES OF INDIA Mumbai Nov. 18, 2013

available at http://articles.timesofindia.indiatimes.com/2013-11-18/mumbai/44201079_1_shakti-millsbrutal-rapes-crime-record (last visited at Dec. 10, 2013 at 15:00 hrs.)


xxxvi

Parth Shastri, Trust raped within the family, THE TIMES OF INDIA Ahmedabad Dec. 25, 2012

availabel at

http://articles.timesofindia.indiatimes.com/2012-12-25/ahmedabad/35998691_1_sexualoffences-sexual-abuse-medical-student (last visited at Dec. 10, 2013 at 18:00 hrs.)


xxxvii
Rapists known to the victims were parents/close family members (1.6%), relatives (6.4%),
neighbours (34.7%) and other known persons (57.2%)
xxxviii
V Narayan, Home most unsafe place for women, THE TIMES OF INDIA Mumbai Nov 18, 2013
available at http://articles.timesofindia.indiatimes.com/2013-11-18/mumbai/44201079_1_shakti-millsbrutal-rapes-crime-record (last visited on Dec. 12, 2013 at 14:00 hrs.)
xxxix

Rebecca Raphael, Girls Forced into Prostitution, ABC NEWS July 13, 2013 available at

http://abcnews.go.com/2020/story?id=132685 (last visited on Jan. 2, 2013 at 11:00 hrs.)

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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

visited on Dec. 12, 2013 at 12:00 hrs.)


xliii
xliv

Jashubha Bharat Singh Gohil v. State of Gujrat, (1994) 4 SCC 353.


Ravjialias Ram Chandra v. State of Rajasthan AIR 1996 SC 787, 791

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

http://www.alrc.gov.au/publications/7-recognising-family-violence-criminal-law/aggravated-offencesoccurring-family-violenc (last visited on Jan. 3, 2014 at 12:30 hrs.)


xlvii
D Tuerkheimer, Recognizing and Remedying the Harm to Battering: A Call to Criminalize
Domestic Violence, 94 Journal of Criminal Law & Criminology 959, 972 (2003)

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

family-violence-criminal-law/family-violence-offence (last visited on Jan. 2, 2014 at 11:30 hrs.)

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POLICING PRIVACY: REGULATING


INFORMATION DISSEMINATION
BETWEEN THE MEDIA AND THE
POLICE
ALWYN SEBASTIN & PRERNA KHATRI
INTRODUCTION
The role of the media was often understood as a mere mediator of primary
information to the public. However, this role has been expanded over the past few
decades owing to the era of globalization and democratization. i The media, has been
the cornerstone for the collusion of adverse opinions. ii John Stuart Mill opined that
the ideal role of the media is to discover the truth, and in doing so, it is justified in
deliberating on various matters within the marketplace of ideas. iii Sometimes the
functionality of the media is diluted with regulations posed by the state.
Nevertheless, the freedom of speech and expression is quintessential for the proper
functioning of the state system.
This freedom not only enables public participation in a democratic society iv, but also
plays an integral part of every citizens right to self development and fulfillment. v
This freedom is not an end in itself but a means of identifying and accepting the
truth. vi No right is absolute; every right has its restrictions. Many nations have
imposed restrictions on this freedom in light of morality, national security and
privacy. However, privacy, amongst the various other restrictions, also happens to be
a positive right. Thus it is safe to assert that the right to speech and the right to
privacy are mutually exclusive and hard to reconcile.
Towards the end of the twentieth century, the nations of the world began to realize
the growth of mass media in disseminating information to the public. The media
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began gaining great importance in establishing state-citizen relationships. The media


has taken on the position of the fourth estate vii, aiding the state in its communication
to its citizens. This confers upon the media, as sense of public accountability in
delivering truthful and resourceful information.viii However, in an attempt to appeal
to the public, the media often oversteps its responsibility and invades into peoples
privacy.ix
In an attempt to reconcile the differences between the media and its citizens, the
Indian Parliament has introduced the Privacy Bill, 2011 that is pending before the
house for perusal. The paper attempts to provide a critical appraisal of the Bill,
thereby ensuring the authenticity on information received and delivered by the
media. The growing casual encounters between the police and media personnel, has
raised crucial questions with regard to the violation of privacy. x Lastly the paper
attempts to provide recommendations in order to foster a healthier and more
accountable police-media relationship.

INVASION OF PRIVACY BY THE MEDIA


The freedom of press is regarded as the mother of all other liberties in a democratic
society.xiThe Constitution of India, 1950 does not explicitly provide for a freedom of
press. However, such a guarantee can be said to be derived from Article 19(1)(a) of
the Constitution. xii Nevertheless, the freedom is often misconstrued to mean a press
that is free to disregard its responsibility. xiii. In the case of Time Inc. v. Hillxiv, the U.S.
Supreme Court observed that the constitutional guarantee of freedom of speech and
press are not for the benefit of the press so much as for the benefit of all the people. xv
Summing it up, Arthur Hays says that the crux of the freedom of press is not the
publishers freedom to print but the citizens right to know. xviThe expression right to
know is valid so long as it does not interfere with any of an individuals legal rights.
When the press or the media infringes a mans justifiable right by prying into his
personal life, it results in an instance of invasion of the individuals privacy.

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Privacy was seen as a collection of distinct rights. It arises from instances of a


general right to privacy such as trespass, breach of confidence, copyright and
defamation.xvii However, by virtue of the aforesaid instances being general in nature,
their scope is restricted, making them ill-suited to the protection of privacy.

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

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proprietorship or other association of individuals, engaged in commercial or


professional activities. Therefore its application is restricted to the private sector
alone, leaving the activities of the public sector completely unaccounted for. The
second concern is that religious and social organisations would be completely
excluded from the purview of this provision as their activities are considered to be
neither within the bracket of commercial nor professional activities.

Therefore, to create a more comprehensive law, the Government has proposed a


Privacy Bill, 2011 which is still pending before the Parliament for consideration. For
the purpose of the present paper, it is expedient to discuss the merits and demerits of
the proposed bill in length.

CRITICAL ANALYSIS OF THE PRIVACY BILL, 2011


A.

SCOPE AND EXTENT

(i)

Object Of The Act


The object clause of the Privacy Bill, 2011 makes a citizens constitutional right
to privacy a statutory right. However, the flaw in the object clause is that it is
unable to clearly mention the reason for having such an objectxxii, unlike the
RTI Act, 2005 that follows up the declaration of the right to information with
the need to promote transparency and accountability in the working of every
public authority. Another component that the object clause is devoid of, is
that it fails to mention that the right to privacy is not absolute.xxiii There is a
need to broadly mention an exception to the right to privacy as the
interpretation of the Act is often made with reference to the object clause. xxiv

(ii)

Applicability Of The Act


The object clause states that the Bill is applicable to only citizens of India. This
provision does not accommodate the possibility that there can be a wrong
(civil or criminal in nature) committed by a foreign entity operating in India.
Agreed, Section 8 of the Bill provides that foreign non-citizens operating in
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India must elect a representative who is a resident of India. However, the


debatable issue here is that, in case of a default on the part of the foreign
entity, the representative will be held liable and the actual defaulter will not
be penalised. In the recent U.S. snooping incident, according to top-secret
documents provided by a NSA whistleblower, the American agency carried
out intelligence gathering activities in India using a program called PRISM. It
collected information about certain specific issues from the Indian offices of
Google, Microsoft, Facebook, Yahoo, Apple and YouTube. xxv In order to
regulate and restrict the occurrence of such activities we think a change in the
wording of the aforementioned Section is mandatory.
Also, logically speaking if a mans inherent right to privacy under Article 21 is
applicable to all individuals,xxvi then it is only befitting that the statutory right
to privacy must also be applicable to all persons (citizen or not). xxvii Hence,
there is a need to re-define individuals u/s 2(xvi) of the Bill to include even
foreign nationals.
B.
(i)

ABSTRACT NATURE OF PRIVACY


What is Right to Privacy ?
It is crucial for any society to have laws relating to the protection of these
private rights and define the contours of privacy and the right to it
unequivocally. Section 3 of the Bill simply confers upon the citizens the power
to exercise the right to privacy but fails to define what right to privacy is.
Although Section 6 gives us an idea of what a reasonable expectation of
privacy is, the Bill does not give us an explicit definition of what the right
includes. In 2010, the media reported that Sunanda Pushkar, a close friend of
the Minister of State for External Affairs, Shashi Tharoor, holds a significant
stake in the IPL Kochi team. The media exposure led to the exit of Shashi
Tharoor from the government. While the medias questioning of Pushkars
holdings was rightful, the medias coverage of her past relationships and how
she dressed had no bearing on public interest. xxviii

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(ii)

Ambiguous phrase
(a)

The phrase processing as defined in Section 2(xxiv) is broad and has

the danger of being interpreted in favour of media personnel. Processing


needs to be defined in such a manner that any person involved in any point of
the processing chain, cannot enjoy complete access to the full length of the
confidential information. The law must allow enforcement agencies like the
police but exclude the media as the victim will wish to share the details of the
wrong done to him to the police alone and not come under the radar of the
public eye.
The judgment in Jessica Lals case had pointed out the failure of the police in
deciding the accused first and then collecting evidence against him, instead of
the reverse. Similarly, the media was blamed for exaggerating the offense of
the accused in many other cases like the Aarushi Talwar case and the Gujarat
Best Bakery Case. xxix Therefore a mere failure in procedural formalities proved
to be fatal enough to deny justice to the victim. Hence to avoid such instances
in future, the phrase processing needs correction. This self-acclaimed
authority in the absence of an effective checks and balance system is what
encourages infamous concepts like trial-by-media.
C.

INTERACTION BETWEEN MEDIA AND POLICE FORCE


Section 10(4) of the Bill provides for the maintenance of confidentiality
among persons employed by the data controller. This is the closest the Bill
gets, with regards to regulating the interaction between two of the biggest data
controllers in today's day and age. Therefore as of today, the Parliament does
not have a stand on the constant backdoor interaction between the media and
the police. The Bill neither prohibits nor allows for the interaction between the
media and the police force.
In fact it is this ambiguous position of the Parliament that led to confusion
amongst the judiciary and the public in the Aarushi Talwar case. The media

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reports

disclosed

confidential

information

about

the

ongoing

CBI

investigation to the public, claiming to have received such information from


the CBI officials personally.xxx The officials denied such leaks and the Court
was forced to pass a restraining order to contain the media frenzy and give
directions on responsible reporting. xxxi
On a concluding note, if the Bill were to be passed in its present text, the aforesaid
problems would continue to persist and would be counter-productive to its spirit. In
order to evade such outcomes, the existing Bill must be supplemented with an
efficient system of regulations governing the powers and functions of the Police
department.

CHECKING POLICE-MEDIA ENCOUNTERS


The quality of media houses is determined more by the authenticity of information
provided and not by their ability to misguide the public with multiple takes on the
same matter. Authentic information is a sign of a responsible media xxxii that respects
the fragility of the matter being reported. In order to exonerate such unhealthy
practices, it is important to get to the root of the issue and regulate the sources from
which the media get their information. One such information provider is the police.
In many cases, the media approach the police to retrieve information about an
ongoing trial or investigation. Such a contact between the media and the police is
neither recorder nor permitted. xxxiii This results in improper disclosure of information
which is damaging to the public xxxiv and subsequently to the state at large. The police
officials are usually expected to strictly refrain from disseminating information in
the interest of confidentiality. xxxv However, on the other hand, the medias existence
relies upon uncovering information.xxxvi This conflict of interest is usually the cause
for increasing speculations between the two entities.
The Constitution of India confers upon the state, the right to frame laws in relation
to policing, public order, courts, prisons, etc.xxxvii Therefore the role of the union in
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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.
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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

that investigate police

misconduct at both national and provincial levels. Furthermore, it is highly


recommended lx that there exists a Body that works similarly even in India. The
public may register complaints if the police have failed to fulfill its statutory
obligations. This will help the public keep a check on their privacy being violated at
the grass root level itself or before such sensitive information is conveyed to the

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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
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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

Writings (London: Everymans edn, 1958).


iii

Abrams v. US 250 US 616, 630 (1919).

iv

Handyside v. UK (1976) 1 EHRR 737, para 49.

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.

Oxford University Press, 2009).


vii

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

Media, 88 YALE. L.J. 1157 (1978-1979).


x

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

India, AIR 1996 SC 515: (1985) 1 SCC 641.


xii

Reliance Petrochemicals Ltd. v. Proprietors of Indian Express Newspapers Pvt. Ltd. Bombay , AIR

1989 SC 190.

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xiii

DR. AWASTHI & KATARIA, LAW RELATING TO PROTECTION OF HUMAN RIGHTS 582-583 (2nd ed., Orient

Publishing Company 2005).


xiv

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

Supra, note 13 at 586.


Id. at 592.

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

governance/blog/privacy/privacy-media-law (last visited Nov. 21, 2013).


xix

AIR1963 SC 1295 :1964 SCR (1) 332.

xx

R. Rajagopal v. State of T.N, (1994) 6 SCC 632.

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-

nsa/article5157526.ece (last visited Dec. 22, 2013).


xxvi

THE CONSTITUTION OF INDIA, art.21

xxvii

Martinez Montsant Joan v. Union Of India, W.P. No. 61225 of 2009.

xxviii

Sunanda

Pushkar,

Media just turned me into a 'slut' in IPL row , available at

http://articles.timesofindia.indiatimes.com/2010-04-23/india/28149154_1_sunanda-pushkar-shashitharoor-ipl-kochi ( last visited Dec. 6, 2014).


Prabal Dixit, Jessica Lal: A case of Indian Realism, available at : http://www.legalindia.in/jessica-lal-a-

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

High Court of Karnataka v. State of Karnataka AIR 1998 Kant. 327.

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Elizabeth Filkin, Ethical Issues arising from the relationship between Police and Media, (Jan, 2012),

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

http://www.ehow.com/info_8747854_relationship-between-police-media.html (last accessed on 25, Feb.


2013)
xxxvi

Larry

Jones,

Police and Media Relations: How to Bridge the Gap, available at:

http://www.fdle.state.fl.us/Content/getdoc/9a5940ba-6100-45e3-86a2-092f72480769/jones-larry-finalpaper (1).aspx (last accessed on 26, Feb. 2013).


xxxvii

THE CONSTITUTION OF INDIA, art. 246; Entry 1,List 2, Sch. 7

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

visited Nov. 30, 2013).


xl

The Indian Police Act, 1861, 23.

xli

The Indian Police Act, 1861, 44.

xlii

Ms. Bharathi Yadav v. State of U.P. Crl. M. C. No. 6230/ 2006; Crl. M. No. 11312/ 2006.

xliii

Bijal Revashanker Joshi v. State of Gujrat (1997) 2 GLR 1147.

xliv

The Indian Evidence Act, 1872 123.

xlv

The Indian Evidence Act, 1872 124.

xlvi

The Indian Evidence Act, 1872 125.

xlvii

The Code of Criminal Procedure, 1973, Ch. 12

xlviii

The Right to Information Act, 2005 5.

Universal Declaration of Human Rights, art.5(1)(b), Dec. 10, 1948; Cited in Martinez Montsant Joan

xlix

v. Union Of India, W.P. No. 61225 of 2009.


The Australian Privacy Charter Group, Law School, University of New South Wales, Sydney, The

Australian Privacy Charter,(1994).


li

Report of the Committee on Privacy and Related Matters, 7 (1990).

lii

ALAN F. WESTIN, PRIVACY AND FREEDOM, 7 (Atheneum, New York, 1967).

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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,

2009), 1-56432-518-0, available at: http://www.unhcr.org/refworld/docid/4a793f692.html (last visited 13


March 2013).
lvi

HELLEN FENWICK, CIVIL LIBERTIES 280 (1995).

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 )

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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

W. P. (civil) No. 310/ 1996.

lxiii

Prashant Jha, India looks for lessons from Leveson report on media , ( Jul. 14, 2013) The Hindu,

National.

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PROTECTION OF MEDICINAL PLANTS


ANIRUDDHA KUMAR & AASTHA TIWARI
INTRODUCTION
With growing interest in medicinal plants, the need of the hour is a long term
strategy to conserve and sustainably harvest these plant products. The use of
medicinal plants in India and many other developing countries can be considered a
living tradition. The World Health Organisation (WHO) estimates that the primary
health care needs of approximately 80 per cent of the developing worlds population
are met by traditional medicine. i Traditional Knowledge, per se, does not fall under
any particular category but it ranges from the Ayurvedic, Unani, Siddha and Tibetan
in India, the Kampo in Japan, the Jamu in Indonesia, and many more. The traditional
systems of medicine largely depend on natural resources for their medicines, out of
which plants form the bulk of the medicine. ii India, somehow, seems to be stranded
between the international conventions and her nations need. A major concern for
developing countries is the TRIPS Agreement which obligates all members to
provide patent in all the field of technology and also provide IPRs (either by patents
or a sui generis system) for plant varities. This essay shall put some light on the
importance of protection of medicinal plants in India.

MEDICINAL PLANTS IN INDIA


The All India ethnobiology Survey carried out by the Ministry of Environment and
Forests estimates that over 7,500 species of plants are estimated to be used by 4,635
ethnic communities for human and veterinary health care across the country. iii These
plants however face threat of habitat destruction. Under the Forest (Conservation)
Act ,1980 and the Wildlife (Protection) Act, 1972, medicinal plants do get some
amount of protection. But a lot of medicinal plants grow away from the protected
areas domain and since there is no consolidated strategy for medicinal plants, a lot of
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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.

TRADITIONAL KNOWLEDGE V. PATENT LAWS


One of the major problems that India is facing is exploitation of her traditional
knowledge. Gene technology has given unlimited powers to developed countries to
exploit the genetic resources of poor nations leading to a situation of biopiracyand
gene robbing. Biopiracy can be defined as the stealing of biomedical knowledge
from traditional and indigenous communities or individuals. The term can also be
used to suggest a breach of a contractual agreement on the access and use of
traditional knowledge to the detriment of the provider, and also applies to
bioprospecting without the consent of the local communities. The issue of protection
of traditional knowledge, bio-piracy and fair equitable sharing of benefits arising out
of utilization of traditional knowelege is very important for India. The patent
intervention is being quite visible, lately. A number of herbs, viz. neem, haldi and
ashwagandha and plant drugs of India have been patented by outsiders on the basis
of secondary researches. Perhaps rightly so, since Basmati, Neem and Haldi have
never been too far from an Indian's life, and the idea that someone else may acquire
the right to own, trade and market it, is more than a bit jolting. The objective of the
patents system is to develop new knowledge for prosperity of mankind which is

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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
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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.
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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.

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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.

INTERNATIONAL LAWS ON IP AND ITS EFFECT ON PATENT LAW


REGIME IN INDIA
Trade Related Aspects of Intellectual Property Rights (TRIPS Agreement) is at the
centre of international regime concerning the protection of Intellectual Property
Rights (IPRs). For the developing countries this is of great significance as its
ratification implies important changes in the IPR laws. The entry in to the force of
the TRIPS agreement for developing counters makes the issue. The TRIPS
agreement has introduce the protection of plant varieties, product patenting and
Exclusive Market Rights (EMRs). This has compelled the developing countries like
India to make changes in there IPR laws.
The Patent Act of 1970, has exclude the patenting of life forms and specifically
precludes the patenting of methods of agriculture and horticulture. xii Further, while
allowing for the process patent on the substance intended for use as food, medicine
or drugs, the Act rejects the possibility to grant patents in respect of substance
themselves.
The TRIPS has the effect of extending the application of IP standards already in use
un most OECD countries to all General Agreement on Tariffs and Trade(GATT)
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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.

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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

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appropriate access to utilization of resources. The signatories are required to respect,


preserve and maintain knowledge of indigenous communities. Article 1 of the
convention provides for this protection of traditional knowledge along with article 8.
This provide for protection of traditional knowledge in one hand and TRIPS provides
for exclusion of plant and animal material from patenting, yet there is spurt in the
arena of IPR, which can be seen in the our above discussion on different
controversies.
Therefore, if we can take a final look in to the controversy and effect of TRIPS
majorly we can see that, the patent protection in TRIPS has not provided any
protection to the traditional knowledge of medicinal plants in India. We can rather
say that, Intellectual property is important, but the appropriate intellectual property
regime for a developing country is different from that for an advanced industrial
country. The TRIPs scheme failed to recognize this. In fact, intellectual property
should never have been included in a trade agreement in the first place, at least
partly because its regulation is demonstrably beyond the competency of trade
negotiators. Hopefully, in WIPOs reconsideration of intellectual property regimes,
the voices of the developing world will be heard more clearly than it was in the WTO
negotiations.

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.

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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

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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

intergovernmental bodies like CBD,WIPO,FAO, WTO and UNCTAD in this regard.


While all these improvements keep on working at their own pace, it is important for
India to have a stronger legislative stance on this issue. Apart from these
developments, there are many medicinal plants that stand on the verge of extinction.
First the patent concern was on wound healing property of Haldi and now hypo
glyceimic property of karela, brinjal etc. They are widely used in India and their bio
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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

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RHETORIC CONCEPT OF NON- LETHAL


WEAPONS UNTOUCHED BY INTERNATIONAL
LAW
HARSHAD KAPOOR
ABSTRACT
Establishing national mechanisms to review the legality of new weapons is especially
relevant and urgent in view of emerging new weapons technologies. This article
asserts the need for a international mechanism to review newly invented weapons
that are wrongly termed as non- lethal.
Henry Dunant in his famous book A Memory of Solferino wrote Ensuring the
legality of new weapons is crucial if the development, proliferation and use of cruel
and indiscriminate weapons are to be prevented and if humanity is to be protected
from new and frightful weapons of destruction.
Non-lethal weapons are characterized by some scholars as weapons of mass
protection that constitute a new arsenal for a new era of warfare. The most
frequently mentioned reason behind the development of the "non-lethal" weapons
concept is the changing nature of military operations in the post-Cold War world in
what are called "military operations other than war." In addition, ethnic hatred and
ineffective or non-existent 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. NLWs are not required to have a zero probability of producing
fatalities or permanent injuries. Moreover, the term "non-lethal" suggests that the
weapons in question are anti-personnel weapons only. The area of "non-lethal"
weapons covers, however, more than anti-personnel weapons. It includes weapons
designed for use against "anti-materiel" weapons. Medically, the intended and

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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.
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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

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comply with its international legal obligations during armed conflicts and situations
of violence.

WEAPON REVIEW MECHANISM


The 27th International Conference of the Red Cross and Red Crescent in 1999 and
the 28th Conference in 2003 called on states to establish mechanisms and procedures
to determine the conformity of weapons with international law. In particular, the
28th Conference declared that in light of the rapid development of weapons
technology and in order to protect civilians from the indiscriminate effects of
weapons and combatants from unnecessary suffering and prohibited weapons, all
new weapons, means and methods of warfare should be subject to rigorous and
multidisciplinary review.iii
The obligation to review the legality of new weapons implies at least two things. First,
a state should have in place some form of permanent procedure to that effect, in
other words a standing mechanism that can be automatically activated at any time
that a state is developing or acquiring a new weapon. Second, for the authority
responsible for developing or acquiring new weapons such a procedure should be
made mandatory, by law or by administrative directive. A proposed means of warfare
cannot be examined in isolation from the way in which it is to be used that is,
without also taking into account the method of warfare associated with it. This raises
three questions. The first is whether the reviewing authority should consider only the
proposed or intended use of the weapon, or whether it should also consider other
foreseeable uses and effects the weapons effects resulting from a combination of its
design and the manner in which it is used. Article 36 of Additional Protocol I appears
to support the broader approach, since it requires a state to determine whether the
use of a new weapon would be prohibited in some or all circumstances.

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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

military means. However,

these types of weapons does present numerous challenges and

concerns as described below.


a. Non-lethal weapons may produce unrealistic expectations
The first concern is that the weapons might present unrealistic expectations about
the prospects for bloodless war. The problem arises from the term non-lethal itself,
leading some in the defense community to advocate adoption of substitute terms
such as less-lethal or sub-lethal effects weapons.
Non-lethal weapons shall not be required to have a zero probability of producing
fatalities or permanent injuries. However, while complete avoidance of these effects

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is not guaranteed or expected, when properly employed, non-lethal weapons should


significantly reduce them as compared with physically destroying the same target. ix
b. Non-lethal weapons offer the potential for the enemy to fight again.
A second concern regarding non-lethal weapons is the potential for opposing forces
to return to the battlefield to fight again. Mercy on the battlefield sometimes
backfires. For example, some of the prisoners paroled by General Grant at Vicksburg
during the U.S. Civil War fought him again in later battles. x Clausewitz warned that,
in general, the enemys fighting forces must be destroyed: that is, they must be put
in such a condition that they can no longer carry on the fight.xi This is an issue that
must be considered if increasing reliance on non-lethal weapons becomes a reality.
c. The availability of non-lethal technology may lure adventurism.
A possible criticism of reliance on non-lethal weapons is that they may make us more
prone to commit to military action that may have negative economic or diplomatic
consequences or may escalate to become an unintended major conflict. The
argument goes that since bloodshed and destruction can be greatly reduced with
these weapons, we may be tempted to intervene at an earlier point. Moreover, lack of
training can increase the level of lethality to even causing death.
d. More than Anti Personnel.
The area of "non-lethal" weapons covers, however, more than anti-personnel weapons.
It includes weapons designed for use against vehicles, equipment, materiel, and
computer systems (collectively "anti-materiel" weapons)." Describing these antimateriel weapons as "non-lethal" does not accurately reflect their purpose or nature.
In addition, use of some of these anti-materiel "non-lethal" weapons can be lethal as
vehicle, equipment, or materiel failure places the human operators in mortal danger.
e. Combination of lethal and non lethal weapons.

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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.

WEAPONS AND INTERNATIONAL TREATIES


The conventional, biological, and chemical arms control regimes severely limit the
potential use of "non-lethal" weapons. This limitation further reinforces the problems
noted with the concept of "non-lethal" weapons earlier in the Article. Calling weapons
"non-lethal" does not render them susceptible to a lower standard of international
legal scrutiny in connection with arms control regimes. However, some important
potential "non-lethal" weapons technologies, such as acoustic and electromagnetic
weapons, are not affected by the existing arms control disciplines because they do not
fall into any of the current treaties on conventional, biological, and chemical
weapons.
While relevant principles can be extracted from the conventional weapons regime
that can be applied to acoustic and electromagnetic weapons, such application is not
required under any existing treaty. At present, international legal analysis of the use
of these weapons will primarily fall under principles of customary international law,
such as the duty not to cause superfluous injury or unnecessary suffering. xii
Developments in weapons technology, especially aircraft, made civilian populations
increasingly vulnerable to military attack. Civilians also suffered terribly when
attacked by armies and governments that had no intention of honoring the laws of
war. But civilians also face threats from forces committed to IHL because civilian
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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.

PRINCIPLE OF SUPERFLUOUS INJURY AND UNNECESSARY


SUFFERING
This principle has been behind a number of prohibitions of specific weapons systems,
such as exploding bullets, blinding laser weapons, and anti-personnel land mines. At
first glance, it would seem that "non-lethal" weapons cause no concerns for this IHL
principle because the intended physical effects are assumed to be temporary. It
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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

Weapons review mechanisms would also be relevant in

reassessing existing weapons stocked in a states arsenal in the light of new or


emerging norms of international law, such as when a state becomes party to a treaty
prohibiting or limiting the use of a certain weapon.
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Moreover these national mechanisms shall be established under the canopy of an


international body to which reports on approved weapons would be sent by the
national mechanisms for further review.
"Non-lethal" weapons emerge into a situation already marked by great tension
between international law and the realities of international politics. Nowhere is this
tension more serious than in times of armed conflict. This is why there should and
will be tension between international law and the development and use of "nonlethal" weapons. Without this tension, benign motivations behind "non-lethal"
weapons development will quickly be drowned or corrupted into malevolent designs
that adversely affect the lives and hopes of peoples.

REFERENCES
i

See, e.g., J.-M. Henckaerts and L. Doswald-Beck (eds.), Customary International Humanitarian Law,

ICRC/Cambridge University Press, Cambridge, 2005, Rules 70 and 71.


ii

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

See ICRC, Water in Iraq (ICRC Special Brochure, July 1996).

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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

University Press, 1976), 90.


xii

David P. Fidler, The International Legal Implications of Non Lethal Weapons, Indiana University

Maurer School of Law, 1999, p. 75


xiii

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

See ICRC, Water in Iraq (ICRC Special Brochure, July 1996).

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

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ANONYMITY AND REGULATIONS A


BITCOINS PERSPECTIVE
KARTIK CHAWLA
INTRODUCTION - THE PHILOSOPHY OF BITCOINS
In a recent article, Steve Klabnik, self-noted Bitcoin hater, discussed his experiences
with Dogecoin.i In the same article he also discusses Bitcoins and the philosophies
behind both the cryptocurrencies, but the essential part of this article is his final
reaction to the virtual coins, which can be summed up in the following quote:

Before, I just laughed. Now, thanks to a joke, Im scared. ii


Most of the currencies in the world right now, and all the reserve currencies, are fiat
currencies. iii The term fiat currencies refers to currencies that are issued by a
government, and the government promises to pay the holder of such currencies an
equivalent amount in gold, if needed. iv Thus, these currencies usually have a central
regulatory body which issues them, and are consequently called centralised. And at
the end of the day, they have the value they have because somebody said so. v The
modern state can make anything it chooses as acceptable currency, without any
further backing of any kind, even without a connection with gold. vi
Satoshi Nakamoto,vii the creator of Bitcoins, saw a problem with this, which is clear
from the following excerpt from one of his earliest works:
The root problem with conventional currency is all the trust thats required to make

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.

A COMMENT ON BITCOINS , AND ANONYMITY


There are two essential problems that digital currencies had always faced - doublespending, and hacking. What is to stop someone from creating a copy of the data of
their digital currency and spending it again, and what is to stop a hacker or a group
of hackers from hacking the Bitcoin code?

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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.

ANONYMITY AND BITCOINS


As a result of the regulation of fiat currencies and centralised virtual currencies, all
transaction involving them are monitored, and data on them is recorded by the
central authority.xxiii Thus, no transaction involving these currencies can be entirely
anonymous. Bitcoins, as mentioned earlier, do not involve an intermediary. The
transactions are entirely peer-to-peer, in the sense that only the parties to the
transaction are aware of each others identities; the public record of Bitcoin
transactions does not note their identity, only notes the transaction.
And this is where the crypto part of the term cryptocurrency comes in. Every
transaction is encrypted, with two sets of keys the public key, and the private key.
As their names imply, the public keys are available to everyone, thus adding the
transaction to the public list of transactions, but the private keys are, ideally, known
only to the owners of the wallet. Before a Bitcoin transaction can be confirmed, the
user of the wallet must enter his or her private key. The private key of a Bitcoin
address is stored in the wallet itself, designed so that the Bitcoin address can be
calculated from the private key, but not the other way around. Hence, even among
the parties to the transaction, no personal information is shared. xxiv

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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.

ANONYMITY AND REGULATIONS A BITCOINS PERSPECTIVE


This part of the paper discusses the arguments made for and against the regulation,
such as it is, provided by Bitcoins. As has been clarified earlier, Bitcoin transactions
are not perfectly anonymous, but rather pseudonymous, but more essentially take
the control of the currency away from the government. Obviously enough, that is not
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something everyone is comfortable with. The argument made in favour of regulation


is that Bitcoins, by the nature of the anonymity inherent in them and the lack of a
centrally responsible body, facilitate illegal activities, xxviii and whether they can be or
perhaps are being used to fund terrorist activities, hacktivist groups, and other
similar organisations.xxix
In this respect, the relevant example is that of Silk Road. xxx Silk Road was a website
which was part of the Dark Web, which is the part of the internet that cannot be
accessed directly through search engines, and anonymising software like TOR xxxi
must be used to access it. Silk Road was one of the most popular websites on the Dark
Web, where users could readily purchase items like black tar heroin, crystal meth,
amphetamines, and anabolic steroids. xxxii Since online transactions with fiat money
are inherently traceable, users of this website had taken to trading with Bitcoins. The
website was taken down by the Federal Bureau of Investigations (hereinafter FBI)
recently. xxxiii Any contemporary discussion on the advantages and drawbacks of
Bitcoins is sure to mention Silk Road, as an example of all that is wrong with Bitcoins.
That entirely misses the point of Bitcoins, though. Bitcoins are not meant or designed
to be used as the black market currency, or to facilitate entirely anonymous
transactions. In fact, as discussed earlier in this paper, they are actually designed to

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

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Foundation,

li

and USAs Financial Crimes Enforcement Network (hereinafter

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

the wealth of our marketplaces.lxix

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.
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Nakamoto, supra note 8.
Benjamin Wallace, The Rise and Fall of Bitcoin, WIRED, Nov. 23, 2011,
http://www.wired.com/magazine/2011/11/mf_bitcoin/.
xiii
Dr. Rhys Bollen, The Legal Status of Online Currencies: Are Bitcoins The Future?, JOURNAL OF
BANK. & FIN. L. & PR., 3, available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2285247.
xiv
For instance, in the US, the FinCEN has extended its regulations to Virtual Currencies, thus
requiring agencies like Facebook which issue virtual currencies to monitor their customers and
their transactions; FinCen, Application of FinCEN's Regulations to Persons Administering,
Exchanging,
or
Using
Virtual
Currencies,
available
at:
http://fincen.gov/statutes_regs/guidance/html/FIN-2013-G001.html.
xv
RBI, Master Circular Know Your Customer (KYC) norms / Anti-Money Laundering (AML)
standards/Combating of Financing of Terrorism (CFT)/Obligation of banks under PMLA, 2002 ,
RBI/2013-14/94, available at: http://www.rbi.org.in/scripts/BS_ViewMasCirculardetails.aspx?id=8179.
xvi
Satoshi Nakamoto, Bitcoin: A Peer-to-Peer Electronic Cash System, Bitcoin.org , available at:
http://bitcoin.org/bitcoin.pdf.
xvii
Id.
xviii
Id.
xix
Davis, supra note 9.
xx
Bitcoin Wallets are software programs used to keep track of the Bitcoins owned by the user of the
Wallet.
xxi
See Dan Goodin, Bitcoin Talk forum hacked hours after making cameo in Silk Road takedown,
ARSTECHNICA, Oct. 4, 2013, http://arstechnica.com/security/2013/10/bitcoin-talk-forum-hackedhours-after-making-cameo-in-silk-road-takedown/; also see Timothy B. Lee, Hacker steals $250k in
Bitcoins from online exchange Bitfloor, ARSTECHNICA, Sept. 5, 2012, http://arstechnica.com/techpolicy/2012/09/hacker-steals-250k-in-bitcoins-from-online-exchange-bitfloor/.
xxii
Nakamoto, supra note 16.
xxiii
Lerner, supra note 4, 313.
xxiv
Nikolei M. Kaplanov, Nerdy Money: Bitcoin, The Private Digital Currency, And The Case Against
Its Regulation, TEMPLE UNIVERSITY LEGAL STUDIES RESEARCH PAPER, 12, available at:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2115203.
xxv
Id, at 44.
xxvi
Congressional Research Service, Bitcoin: Questions, Answers, and Analysis of Legal issues, 6,
available at: www.fas.org/sgp/crs/misc/R43339.pdf.
xxvii
Kaplanov, supra note 24, at 42.
xxviii
Peter Twomey, Halting a Shift in the Paradigm: The Need for Bitcoin Regulation , 16 TRINITY C. L.
REV. 67, 70 (2013).
xxix
Id, at 71.
xxx
Id.
xxxi
Available at: http://www.torproject.org.in/.
xxxii
Twomey, supra note 28, at 71.
xxxiii
Nate Anderson & Cyrus Farivar, How the Feds took down Dread Pirate Roberts , ARSTECHNICA,
Oct. 3, 2013, available at: http://arstechnica.com/tech-policy/2013/10/how-the-feds-took-down-thedread-pirate-roberts/.
xxxiv
Sarah Meiklejohn et alia, A Fistful of Bitcoins: Characterising Payments Among Men with No
Names, INTERNET MEASUREMENT CONFERENCE 2013.
xxxv
Agustino Fontevecchia , Winklevoss Twins Say Bitcoin Market To Hit $400B, Urge Regulators Not
To
Push
Innovation
To
China ,
FORBES,
Dec.
11,
2013,
http://www.forbes.com/sites/afontevecchia/2013/11/12/winklevoss-twins-say-bitcoin-market-to-hit400b-urge-regulators-not-to-push-innovation-to-china/.
xxxvi
For instance, a list of places where you can spend your Bitcoins in the UK is available here:
Matthew Sparkes, Ten Places where you can spend your Bitcoin in the UK, THE TELEGRAPH, Jan.
xi

xii

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10, 2014, http://www.telegraph.co.uk/technology/news/10558191/Ten-places-where-you-can-spendyour-bitcoins-in-the-UK.html;


a
more
diverse
list
is
available
at:
http://www.coindesk.com/information/what-can-you-buy-with-bitcoins/.
xxxvii
The website for the Cups and Cakes Bakery in San Francisco is available here:
http://cupsandcakesbakery.com/. (In the lower part of the page, they mention We accept Bitcoins,
Buy Cupcakes with Bitcoins).
xxxviii
The website for Foodler is available here: http://www.foodler.com/. (There is a Bitcoins section at
the bottom of the page).
xxxix
The official WordPress statement is available here: http://en.blog.wordpress.com/2012/11/15/payanother-way-bitcoin/.
xl
Betsy Isaacson, OKCupid To Begin Accepting Bitcoin Payments For Premium Features , THE
HUFFINGTON POST, April 16, 2013, http://www.huffingtonpost.com/2013/04/16/okcupidbitcoin_n_3093427.html.
xli
See Matt Clinch, Baidu Division Now Accepting Bitcoins , CNBC, Oct. 16, 2013,
http://www.cnbc.com/id/101116330; also see Bloomberg News, Baidu Stops Accepting Bitcoins
After
China
Ban,
BLOOMBERG
PERSONAL
FINANCE,
Dec.
7,
2013,
http://www.bloomberg.com/news/2013-12-07/baidu-stops-accepting-bitcoins-after-china-ban.html.
xlii
Julie Gordon, Bitcoin goes mainstream with ATM in Vancouver coffee shop , REUTERS, Oct. 29,
2013, http://uk.reuters.com/article/2013/10/29/uk-bitcoin-atm-idUKBRE99S1ED20131029.
xliii
Timothy B. Lee, Bitcoin going mainstream? Exchange approved to operate as a bank, ARS
TECHNICA, Dec. 7, 2012, http://arstechnica.com/tech-policy/2012/12/bitcoin-going-mainstreamexchange-approved-to-operate-as-a-bank/.
xliv
Patrick Howell ONiell, As Silk Road 2.0 Struggles, new black markets look beyond TOR , THE
DAILY DOT, Dec. 26, 2013, http://www.dailydot.com/crime/deep-web-black-markets-beyond-tor-i2p/.
xlv
Andy Greenberg, Meet The 'Assassination Market' Creator Who's Crowdfunding Murder With
Bitcoins, FORBES, Nov. 18, 2013, http://www.forbes.com/sites/andygreenberg/2013/11/18/meet-theassassination-market-creator-whos-crowdfunding-murder-with-bitcoins/.
xlvi
Adrian Chen, Now You Can Buy Guns on the Underground Marketplace, GAWKER, Jan. 27, 2012,
http://gawker.com/5879924/now-you-can-buy-guns-on-the-online-underground-marketplace.
xlvii
The full report is available here: http://www.fas.org/sgp/crs/misc/R43339.pdf.
xlviii
James Titcomb, China's answer to Amazon, Alibaba, bans Bitcoin , TELEGRAPH, Jan. 8, 2014,
http://www.telegraph.co.uk/finance/currency/10558945/Chinas-answer-to-Amazon-Alibaba-bansBitcoin.html.
xlix
RBI, RBI cautions users of Virtual Currencies against Risks , Dec. 24, 2013, available at:
http://rbi.org.in/scripts/BS_PressReleaseDisplay.aspx?prid=30247
l
Cade Metz, Bitcoin Exchanges Shut Down in India After Warning, WIRED, Dec. 27, 2013,
http://www.wired.com/business/2013/12/bitcoin-india/.
li
Nathan Mattise, California sends a cease and desist order to the Bitcoin Foundation ,
ARSTECHNICA, June 24, 2013, http://arstechnica.com/tech-policy/2013/06/california-sends-a-ceaseand-desist-order-to-the-bitcoin-foundation/.
lii
FinCEN, supra note 14.
liii
Id.
liv
John Biggs, Silk Road 2 Still Running After Moderator Arrests, TECHCRUNCH, Dec. 23, 2013,
http://techcrunch.com/2013/12/23/silk-road-2-still-running-after-moderator-arrests/.
lv
Howell, supra note 44.
lvi
Titcomb, supra note 48.
lvii
Kaplanov, supra note 24, at , 42.
lviii
Timothy B. Lee, US regulator: Bitcoin exchanges must comply with money-laundering laws,
ARSTECHNICA, Mar. 19, 2013, http://arstechnica.com/tech-policy/2013/03/us-regulator-bitcoinexchanges-must-comply-with-money-laundering-laws/.
lix
The full report is available here: http://www.fas.org/sgp/crs/misc/R43339.pdf.

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lx

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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LEGALIZING GAMBLING IN INDIA: TACKLING


MATCH-FIXING BY THE REGULATION OF
SPORTS-BETTING
MAYANK SAMUEL
INTRODUCTION
Sometimes a 3-1 favourite loses. Thats why they call it gambling, and thats why
they keep flipping over the cards. i
- Richard Roeper
It has always been the desire of the man to get rich overnight which led to a search
for different ways and means, one of which is gambling. Gambling, one of the oldest
industries in the world, is regarded by some as a vice and sinful activity and by others
as a harmless form of entertainment. On the other hand, gambling has played a
considerable role in the American history with the usage of lotteries by the First
Continental Congress to finance the Revolutionary War and the founding fathers
such as Benjamin Franklin and George Washington sponsoring private lotteries. ii
Three key elements of gambling:1. Something valuable is being put at risk
2. The outcome of the game is determined by chance
3. Irreversible nature
All forms of gambling require three elements, namely prize, chance and
consideration and a person gambles when he takes the chance of losing his money or
belongings. iii People choose to gamble to win money in order to overcome their
financial hardships, to socialize or just as a source of excitement. While gambling was
once illegal and viewed as a disreputable activity, it is increasingly becoming a
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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.

ADVANTAGES OF LEGALIZED GAMBLING


Negative perceptions about gambling in the Indian society with the media and the
government calling it a social evil has restricted the growth potential of the industry
though gambling is merely a chance activity with a monetary value attached to it. iv
All of us in our daily lives are involved in some form of chance activity though we
dont attach any monetary value to our predictions but merely attaching monetary
value to such predictions doesnt make it illegal or immoral.
Economic Acceleration
South-east Asian nations such as Thailand having lesser number of tourist spots
attract more international tourists than India and therefore tourism-related revenue
as they promote tourism with the help of gambling-related activities. India, in order
to attract more foreign tourists and therefore, earn valuable foreign exchange should
amend suitably the outdated local and national laws and set up a national level
Gambling Regulatory Authority on the lines of UK Gambling Commission so that
hotels in the important tourist centres of India are allowed to operate casinos and
thus provide the currently missing fun part of a tourist activity. A regulated
gambling industry in the country with young population, robust economy and
superpower status in the IT sector would have a positive multiplier effect on other
sectors in the supply chain such as real estate, advertising, banking and hotel
industry. The policy makers of the country by providing the right legal framework to
legalize gambling in a regulated manner in India would see thousands of billions of
rupees of black money involved in illegal gambling coming to the legal economy for
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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

Such cricket-fixing allegations which are

detrimental to the countrys reputation projecting India as a corrupt nation can be


eliminated by legalizing gambling in India benefitting not only nations economy
but also its pride.
Entertainment value
Gambling, made illegal in India with the intention of strengthening Indian economy
by Public Gambling Act, 1867 took into account moral and financial arguments
though the legislation was unsuccessful in stemming gambling as when a population
is asked not to gamble, its the first thing theyd do, driving gambling underground.
Mahatma Gandhi also spoke out against gambling giving moral arguments to
support his stance calling it a morally corrupt activity. viii All such arguments didnt
take into account the enjoyment that is derived from low-stakes betting for
entertainment purposes with the evil aspects of gambling reduced by legislation. The
lawmakers, not ready to consider the entertainment aspect of gambling are unwilling

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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.

CASE STUDY: SIKKIMS PLAYWIN LOTTERY AND GOAS FLOATING


CASINOS
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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

DISADVANTAGES OF LEGALIZED GAMBLING


Gambling: The sure way of getting nothing for something. xi
-Wilson Mizner
Addiction to Gambling
The lure of getting something for nothing has attracted the individual towards
gambling and, therefore, the biggest impact of legalizing gambling has been seen in
peoples homes where individuals tend to over-gamble, spending all their earnings on
the table leading to severe problems in the households. One of the significant
drawbacks of legalizing gambling industry has been increasing its accessibility to
people with about 130 million people visiting casinos in USA which is about double
the attendance at major league baseball games.xii
Financial concerns
Legalizing gambling would be detrimental to the financial position of the citizens
with people choosing to gamble to make quick money instead of investing it wisely.
The casinos, with so much money at stake, analyse the situation which makes a
gambler stay longer on the table and lose as much money as possible disappointing
the gamblers who come to casinos with the intention of winning money.

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Increase in Crime rates


Due to lack of self-restraint of the gamblers, various problems such as loss of money,
neglecting the duties and responsibilities, getting into trouble with gambling cartels
due to their attempts to dupe casinos through illegal means and indulging in overdrinking arise which increases the crime rate in a region with illicit activities such as
money laundering, and counterfeit money taking place. Atlantic City in US is one
example where legalizing gambling saw a phenomenal 320% rise in the crime rate
and a 100% rise in cases of rape, muggings and burglary.xiii Another observation is an
increase in the suicide rates in the areas where gambling has been legalized as
compulsive gambling leads to suicide.xiv
Small Businesses suffer
Even though the tourism industry on the whole would prosper, other small business
establishments providing recreation and establishment will suffer with most people
visiting only the casinos, and therefore, such growth rate would be uneven. xv
Loss of National income
Nobel Prize-winning economist Paul Samuelson described gambling as sterile
transfers of money and goods between individuals creating no new money for goods
while absorbing time and resources which if pursued beyond a certain limit of
recreation would subtract from the national income. xvi Further, the revenue boosts
from legalized gambling are short-lived generating gambling dependence and
failing to maintain a city through recession.
Social evil
Gambling is a social evil not only causing an erosion of ones ethics but also leading
to irresponsibility amongst the youths of the country who initially start off by
spending little amounts but later, end up wasting their earnings, becoming
irresponsible citizens of the society and the country setting a wrong example for the

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younger generations. Therefore, the financial benefits provided by gambling are


dwarfed by the social and cultural risks posed by addiction to gambling.
If you think legalizing games of chance starves out the criminals, look at Las Vegas,
where the games are legal, yet the hoods still deal themselves in and related vices
xvii

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

HISTORY OF GAMBLING IN INDIA


Gambling has been an integral part of the Indian culture with texts dating back to
2000 BC making reference to gambling as a pastime of Indian rulers and chieftains.
Mahabharata presents the most famous gambling story where Yudhishthira, ended
up gambling his entire kingdom, his brothers, his wife Draupadi and eventually

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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.

LEGAL POSITION OF GAMBLING IN INDIA


Legal Definition of gambling
The term Gambling includes any activity or undertaking whose determination is
influenced by chance or accident and an activity or undertaking which is entered into
or undertaken with consciousness of the risk of winning or losing a prize competition
or a wagering contract, as defined under List II Entry 34 of the Constitution of
India.xxii
1. Public Gambling Act 1867- The legislation making gambling in India illegal
Public Gambling Act 1867 outlawed all forms of gambling in India except Horse
Racing, Rummy and Lotteries.xxiii Under Section 3 of the Public Gambling Act, 1867
which lays down penalty for owning or keeping, or having charge of a gaming-house,
Whoever, being the owner or occupier, or having the use, of any house, walled
enclosure, room or place situated within the limits to which this Act applies, opens,
keeps or uses the same as a common gaming-house; and whoever being the owner of
such place knowingly or wilfully permits the same to be opened, occupied, used or
kept by any other person as a common gaming-house; and whoever has the care or
management of, or in any manner assists in conducting, the business of any house,
walled enclosure, room or place as aforesaid, knowingly or wilfully permits the same
to be opened, occupied, used or kept by any other person as a common gaminghouse; and whoever has the care or management of, or in any manner assists in
conducting, the business of any house, walled enclosure, room or place as aforesaid,
opened, occupied, used or kept for the purpose aforesaid; and whoever advances or
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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

GAMBLING LAWS IN UNITED KINGDOM AND UNITED STATES OF


AMERICA
United Kingdom
UKs obsession with gambling is driven by the number of sporting events held across
the country with nearly 73% of UK adults participating in some form of gambling in
2010.xxxiii Under the UK Gambling Act 2005 which regulates commercial gambling in
Britain, betting means the making or accepting of a bet on the outcome of a race,
competition or other event; the likelihood of anything occurring or not occurring; or
whether anything is or is not true. xxxiv Under the Act, betting in UK is regulated by
the Gambling Commission which aims to keep gambling crime free, ensure
transparency and protect children and vulnerable adults on behalf of the UK
governments Department for Culture, Media and Sport (DCMS) which govern the
government policy relating to horse-racing, greyhound racing and lottery. xxxv The UK
gambling industry generated revenues worth 82 billion pounds and gave
employment to 120,665 people in 2012-13 with the growth rate at 5.8% and the
annual growth during the five-year period 2008-13 at 2.2% with a total of 1,243
businesses. xxxvi The Act aimed at creating a modern gaming industry in Britain
capable of making a positive contribution to the development of the leisure economy
by boosting employment during economic downturn and promoting the welfare of

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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
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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

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irresponsibility and criminality adversely affecting the poorer, uneducated Indians


who may gamble their lifes savings.lvi

ENDNOTES

Richard Roeper, available at http://www.searchquotes.com/quotation/Sometimes_a_3- 1_favorite_


loses._That's_why_they_call_it_gambling,_and_that's_why_they_keep_flipping_/198080/.
ii

History of Gambling in the United States, available at http://www.library.ca.gov/crb/97/03/


chapt2.html.
iii

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

Rahul Thadani, Legalized Gambling Pros and Cons, Buzzle, http://www.buzzle.com/articles/legalizedgambling-pros-and-cons.html.


vi

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

George Oborne, Why Gambling In India Needs To Be Legalized, IndiaBet,


http://www.indiabet.com/indian-betting/495110/why-gambling-in-india-needs-to-be-legalised.
x

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

Wilson Mizner, available at http://www.brainyquote.com/quotes/quotes/w/wilsonmizn125526.html.

xii

Should Gambling Be Legalized?, StudyMode, http://www.studymode.com/essays/Should-GamblingBe-Legalized-1189.html.


xiii

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

id. at Pp. 213-214.

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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

supra. note xvii.

xx

P. 5, Elder Dallin H. Oaks, GamblingMorally Wrong and Politically Unwise,


http://stoppredatorygambling. org/wp-content/uploads/2012/12/Dallin-Oakes-of-LDS-Church-PredatoryGambling-is-Wrong-and-Politically-Unwise.pdf.
xxi

Sports and Games in Ancient India, available at http://veda.wikidot.com/info:origin-of-games.

xxii

P.1080, V.N. Shuklas Constitution of India, Mahendra P. Singh, (Lucknow: Eastern Book Company,
2012).
xxiii

The Public Gambling Act 1867, available at http://indiankanoon.org/doc/1824663/.

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

AIR 2000 MP 109

xxx

AIR 1995 SC 1770

xxxi

AIR 2001 Mad 159

xxxii

AIR 1968 SC 825

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.
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xxxiv

P. 18. Gambling Act 2005,


http://www.legislation.gov.uk/ukpga/2005/19/pdfs/ukpga_20050019_en.pdf.
xxxv

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

supra. note xxxvii.

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

id. at Pp. 19-20.

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

NATIVE AMERICAN GAMING, NATIONAL GAMBLING IMPACT STUDY COMMISSION,


http://govinfo.library.unt.edu/ngisc/research/nagaming.html.
l

Gambling in the United States, available at http://www.library.ca.gov/crb/97/03/chapt1.html.

li

Online Gambling, American Gaming Association, http://www.americangaming.org/governmentaffairs/key-issues/online-gambling.


lii

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.

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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

Hunter S. Thompson, available at


http://www.brainyquote.com/quotes/quotes/h/huntersth588334.html.
lvi

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/.

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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

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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

Several recognized medical capabilities of cannabis leaves are:


o Pulverized dried leaves are used as snuff "for clearing the brain".
o The juice extracted from the leaves is applied to the head to remove
dandruff and vermin.
o Dropped into the ear it is said to allay pain.
o It is also believed to destroy worms.
o It checks the discharge from the intestines in diarrhoeal conditions and
also the urethral discharge in gonorrhoea.
Cannabis preparations are popularly used as household remedies in the treatment of
many minor ailments. A mild beverage made from bhang leaves is believed to
sharpen the appetite and help the digestion. Religious mendicants who roam
throughout India often carry bhang with them and use it for all sorts of

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gastrointestinal and rheumatic troubles from which they frequently suffer on


account of exposure to inclement weather.

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

SCIENTIFIC DISCUSSION CHEMICAL THEORY/ EFFECTS


Tetrahydrocannabinol (THC) is the principal psychoactive constituent of the
cannabis plant which has mild to moderate analgesic effects.xviii According to a 2006
UK Government report, using cannabis is much less dangerous than tobacco,
prescription drugs, and alcohol in social harms, physical harm, and addiction. xix No

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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

The moderate use of hemp drugs produces no injurious effects on the


mind.xxv

The commission also concluded that:


1. Total prohibition of the cultivation of the hemp plant for narcotics, and of the
manufacture, sale, or use of the drugs derived from it, is neither necessary nor
expedient in consideration of their ascertained effects, of the prevalence of the
habit of using them, of the social and religious feeling on the subject, and of
the possibility of its driving the consumers to have recourse to other
stimulants or narcotics which may be more deleterious (Chapter XIV,
paragraphs 553 to 585).

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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:

"When compared to alcohol I would say that cannabis is less harmful. It is


nonaddictive and less anti-social. With alcohol, crisis behaviour probability is
higher and well documented in accidents, domestic violence and sexual crimes.
However, you don't associate such behaviour with cannabis abuse
We are not saying that you should advertise Indian cannabis as the best in the
world on STAR TV. What we are saying is that the Government need not take
the view it has taken on a drug which is relatively less harmful and which has
been consumed in this country for centuries." xxx
The following scientific graphs further support such conclusions including the ones
made by the Indian Hemp Commission and various other medical and legislative
authorities that cannabis has moderate mental and physical effects, has very low
dependence probability, and definitely is less harmful than tobacco and alcohol
which still remain the most abused psychoactive drugs in the world.

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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
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less than caffeine, alcohol and various other widely used psychoactive drugs and is
lesser than alcohol and tobacco in physical harm.

PROPOSED POLICY CHANGE


Taking into perspective the legislative, religious, social and spiritual history of
cannabis, along with its widespread use in the country, there is a need to change the
current policy i.e. to decriminalize the use cannabis in India.
Decriminalisation is often mistakenly understood to mean complete removal or
abolition of possession offences, or confused with legalisation (legal regulation of
drug production and availability). Under decriminalisation regimes, possession and
use of small amounts of drugs are still unlawful but not criminal offences. xxxiii
While many people within the government fear about the negative impact of such a
policy change, the evidence and data collected by various governmental and nongovernmental organisations indicates otherwise and that any such fear is based in
prejudice. Countries like Portugal and Spain have successfully decriminalised
possession of small amounts of some drugsxxxiv.The following figure and table shows
why and how this policy should be implemented. It also provides some justifications
to such a policy.

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FIGURE 1

Non-criminal sanctions in different jurisdictions include: fines, community service


orders, warnings, mandatory treatment or education sessions, drivers or professional
licence suspensions, travel bans, property confiscation, associational bans, mandatory
reporting, mandatory drug testing, termination of public benefits, administrative
arrest, or no penalty at all community-based treatment, education, aftercare,
rehabilitation and social integration represent a more effective and proportionate
alternative to conviction and punishment, including detention. xxxv

JUSTIFICATIONS TO THE PROSPOSED POLICY


Since policy makers might argue that decriminalization might have negative effect
on the society there are few justifications as to the positive effects of
decriminalization of cannabis.
Usage: The Netherlands' drug policy is one of the most nonpunitive in Europe. For
more than twenty years, Dutch citizens over age eighteen have been permitted to
buy and use cannabis (marijuana and hashish) in government-regulated coffee
shops. This policy has not resulted in dramatically escalating marijuana use. For
most age groups, rates of marijuana use in the Netherlands are similar to those in
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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

decriminalization xxxvi .Therefore decriminalization does not necessarily lead to


increased use.xxxvii

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.

CONCLUSION AND RECOMMENDATIONS


Clearly there is a gap between the legislators and the public. Where on the one hand
the government plans to use satellite imagery to eradicate illicit cultivation of
cannabis plant and on the other hand cannabis is the most abused drug in India,
proven by the fact that among those treated for drug problems in India in 2010, 22
per cent abused cannabis.xlv
In a decriminalized framework, the law continues to prohibit drug usage, but its
completely removed from the criminal sphere, so that if one violates that prohibition
or do the activity that the law says one cannot do theyre no longer committing a
crime. One cannot be turned into a criminal by the state. Instead, its deemed to be an
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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

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tedious and expensive. Therefore, decriminalizing the use of small quantities of


products made from Cannabis Plant is recommended and hence submitted.

REFERENCES
i

Francis Young, DEA Administrative Law Judge

ii

Pillai A. & Menezes S. (Aug 28, 1996) Case for Cannabis: A national workshop recommends

legalisation of soft drugs. Outlook Magazine. Retrieved from:


http://www.outlookindia.com/article.aspx?202017
iii

Ibid 2

iv

The Joint Campaign, Should we not legalize recreational use of Cannabis? Times of India, TNN

Retrieved from:http://timesofindia.indiatimes.com/the-joint-campaign-should-we-not-legalizerecreational-use-of-cannabis/eventcoverage/17167279.cms; Mehrotra P.K. (Sept 7, 2013) Now that


America is changing its mind on cannabis its time for India to do the same. Daily Mail. Retrieved
from: http://www.dailymail.co.uk/indiahome/article-2415127/Now-America-changing-mind-cannabistime-India-same.html
v

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,

2011. Retrieved from: www.narcoticsindia.nic.in/ANNUAL%20REPORT%202011.pdf; Chalabi M. (Aug


22, 2013) Price of marijuana worldwide. The Guardian Retrieved from:
http://www.theguardian.com/news/datablog/interactive/2013/aug/02/marijuana-world-retail-wholesaleprice-interactive-map?commentpage=1
viii

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,

1894, 7 volumes, (189394) Retrieved from: www.druglibrary.eu/library/reports/indianhemp.pdf


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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,

1894, 7 vols. Chapter ix para 433 (189394) Retrieved from:


www.druglibrary.eu/library/reports/indianhemp.pdf
xvii

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

Grinspoon L. (1971) Marihuana Reconsidered, Harvard University Press, 1971. p. 53 54

xxiii

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-10health-benefits-legitimize-legalization-742456


xxiv

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

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ISSN: 2321 - 3787

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

legalisation of soft drugs. Outlook Magazine. Retrieved from:


http://www.outlookindia.com/article.aspx?202017
xxvii

Durgesh J.N. (Nov 10, 2012) Hope for dope: Alcoholics face a greater risk than marijuana users,

doctors insist, Times of India, TNN. Retrieved from: http://articles.timesofindia.indiatimes.com/201211-10/india/35033863_1_recreational-marijuana-ban-cannabis-addiction


xxviii

Ibid 26

xxix

Supra 2

xxx

Supra 2

xxxi

Gable R.S. (2006) The Toxicity of Recreational Drugs, American Scientist, The Scientific Research

Society, American Scientist


xxxii

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

Foundation, ISBN: 978-0-9556428-1-4, p. 214


xxxv

UN Office on Drugs and Crime (UNODC) (2012) UNODC and the protection and promotion of

human rights. Vienna: UNODC, http://www.unodc.org/documents/justice-and-prisonreform/UNODC_HR_position_paper.pdf


xxxvi

Fromberg, E. (1994) The Case of the Netherlands: Contradictions and Values in Questioning

Prohibition, 1994 International Report on Drugs, Brussels, International Antiprohibitionist League. p.


113-124.; Sandwijk, J.P., et al. (1995) Licit and Illicit Drug Use in Amsterdam II, University of
Amsterdam, Amsterdam. Retrieved from: www.cedro-uva.org/lib/sandwijk.prvasd94.13.pdf; Gunning,
K.F. (1993) Crime Rate and Drug Use in Holland. Rotterdam, Dutch National Committee on Drug
Prevention.
xxxvii

World Drug Report (2012), UNODC, United Nations publication, Sales No. E.12.XI.1. Retrieved

from: http http://www.unodc.org/unodc/en/data-and-analysis/WDR-2012.html; Maccoun R. & Reuter R.

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(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

Connecticut General Assembly, Connecticut Law Review Commission. Retrieved from:


http://www.cga.ct.gov/lrc/drugpolicy/DrugPolicyRpt1.htm
xl

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

Retrieved from: http://timesofindia.indiatimes.com/the-joint-campaign-should-we-not-legalizerecreational-use-of-cannabis/eventcoverage/17167279.cms


xliv

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

Publication, ISBN: 978-92-1-148270-6 Retrieved from:


incb.org/documents/Publications/AnnualReports/AR2012/AR_2012_E.pdf; 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#
xlvi

Domosawski A.(June 2011) Drug Policy in Portugal: The Benefits of Decriminalizing Drug Use,

Global Drug Policy Program, Open Society Foundations Retrieved from:


http://reformdrugpolicy.com/wp-content/uploads/2011/09/drug-policy-in-portugal-20110829.pdf.
xlvii

A fresh approach to drugs (October 2012), The final report of the UK Drug Policy Commission.,

ISBN: 978-1-906246-41-9 Retrieved from:

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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,

Global Drug Policy Program, Open Society Foundations Retrieved from:


http://reformdrugpolicy.com/wp-content/uploads/2011/09/drug-policy-in-portugal-20110829.pdf.
xlix

Report of the International Narcotics Control Board for 2012,(2012) E/INCB/2012/1, United Nations

Publication, ISBN: 978-92-1-148270-6 Retrieved from:


incb.org/documents/Publications/AnnualReports/AR2012/AR_2012_E.pdf; 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#
l

UNODC and the protection and promotion of human rights (2012), UN Office on Drugs and Crime

(UNODC) Vienna. Retrieved from: http://www.unodc.org/documents/justice-and-prisonreform/UNODC_Human_rights_position_paper_2012.pdf


li

A fresh approach to drugs (October 2012), The final report of the UK Drug Policy Commission.,

ISBN: 978-1-906246-41-9 Retrieved from:


http://www.equalitytrust.org.uk/sites/default/files/attachments/resources/UKDPC%20%20A%20Fresh%20Approach%20to%20Drugs%20-%20EMBARGOED-1.pdf.

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COST OF CORRECTING CORRUPTIONDOES CANCELLING 2G LICENSES


CONSTITUTE EXPROPRIATION
ACTIONABLE UNDER
INTERNATIONAL INVESTMENT LAW?
SHUBHANGI
ABSTRACT
While the Supreme Courts decision in the case of Centre for Public
Interest Litigation v. Union of India cancelling the 122 fraudulently
issued 2G licences was considered by many as upholding the
constitutional fundamentals of equality and equanimity, it has
exposed the Indian government to actions under international
investment arbitration for disregarding the very same principle of
parity in context of their commitment to international trade.
The principle of international law on which such a claim will be
based is failure of the Indian government to meet the necessary
preconditions to invoking its right of expropriation through the
above mentioned judgment. There was much speculation in the
arbitration academia about the possibility of the same. Like all
premonitions bad, it did come true with big conglomerates like
Systemia Ltd. and Khaitan Pvt. Ltd. issuing notices of arbitration
against the Indian government. Not surprisingly, the grounds for
requesting such arbitration was unwillingness of the Indian
Government to compensate the claimant for the losses arising out of
its act of expropriation stemming from the SC judgment.
The tribunals would have to delve into the complex yet frequently
visited conundrum of balancing the sovereign rights of a nation to
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regulate against the need of investor protection in international


investment law. The article attempts to provide one of the first
holistic picture of the possible jurisprudential arguments raised and
the subsequent rebuttals that might follow in these arbitration
proceedings.

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

Litigation v. Union of India i.


These licenses were issued in 2007-08. Post acquiring such licenses, many of the
domestic companies entered into joint ventures with foreign companies and received
investments from abroad each of which was governed under separate but similar
Bilateral Trade Agreements. For the reference of this article, we could consider the
BIPA (Bilateral Investment Promotion and Protection Agreement) under which
Khaitan Holdings Ltd, the majority holder in the Indian telecommunications Co. of
Loop Telecommunications, has filed the present notice of arbitration. ii Article 6(1) of
the Agreement states herein:
Investments of investors of either Contracting Party in the

territory of the other Contracting Party shall not be


nationalised, expropriated or subjected to measures having
effects equivalent to nationalisation except for public
purposes under due process of law, on a non-discriminatory
basis and against fair and equitable compensation.iii

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This is considered to be a wide expropriation clause in an investment treaty iv


considering it includes the terminology measures having effects equivalent to

expropriation.v Fair and equitable compensation under the international investment


law becomes due to the investor if the host country:
1. Expropriates or nationalises or takes any such measure which has the same effect
as nationalisation or expropriation on the investment of the foreign investor.
2. For a public purpose
3. Under due process of law
4. On a non-discriminatory basis
The last three criteria laid down determine the legality of the act/regulation of the
host country. The legality of the act determines the quantum of compensation where
the award would be relatively higher if the same is found to be illegal.vi However, the
issue that needs to primarily be determined is whether the regulation or law was an
expropriation or not.
Therefore, for the claimants to successfully mount a case against the Government of
India, they need to establish that the cancelling of the licenses was indeed an act of
expropriation or one which had the same effect as that of expropriation.
A leading expert on international law had made an observation which is so
unnervingly true today that one might as well refer to it as a prophecy; he had said
that much literature and research would go into providing the paradigm that means
expropriation in International Law and yet there would be little clarity on the
subject. vii Truthfully enough, the author submits that disputes after disputes have
deliberated on the issue and none have ended with an exhaustive definition of exactly
what constitutes an expropriation.
To attempt to describe or comment exhaustively on a matter which has eluded the
smartest and the most knowledgeable of authors and jurists in the field of
international law would be a mountain too high to scale in mere ten pages. This
article would therefore refrain from commenting on the issue as a whole and deal
exclusively with the issue in hand whether the cancellation of the 2g licenses

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constitutes expropriation as defined by the existing jurisprudence on the matter and


whether an obligation to compensate arises.
There exists no debate that:
1. Investing in a domestic company of the host state constitutes an investment
covered under a Bilateral Treaty Agreement. viii
2. Expropriation can be of intangible assets or property rights as well, thereby
ensuring that licenses be considered assets which can be expropriated. ix
Based on the premise that neither of the above is contested by either parties to the
arbitration, the possible legal grounds that the parties might resort to in order to
prove the existence or the non-existence, respectively, of expropriation has been dealt
with in the following sections.

CALCULATING THE LOSS: CLAIMANTS APPROACH


Expropriation is an expansive term which has over the years been inferred and
interpreted in an extensive manner. It originated initially as a safeguard against the
nationalisation drives of the then conservative governments.

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

of the government which had an effect equivalent to

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

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establish is the existence of wealth deprivationxvii by the government of the host


state without due compensation. xviii
It would not be surprising if the opening arguments of the claimants quoted the
popular judgment in the case of Tippets case:

The intent of the government is less important than the effects of


the measures on the owner, and the form of the measures of control
or interference is less important than the reality of their impact. xix

There exists jurisprudence favouring an international regime which emphasizes on


the protection of the investors economic interest over any other externalities which
includes the good intentions of the host government. In the case of the Phelps Dodge

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

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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

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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

Tecmedxxxiii case. Every time an investors expectation of consistency and stability it


opens the host state for a claim for restitution or compensation in investment law.
Drawing from these established precedents on the matter, the claimants are likely to
argue that the cancellation of the license constitutes a denial of its legitimate
expectation on the continuation of its rights as a license holder as well as amounts to
expropriation under international investment law.
If these arguments leave us wondering if there, at all, exists another side to the story,
it will imply that the claimants council has done a job well. But there is always two
sides of a story and the government of India would most definitely have employed an
equally eager, if not more so, legal team to present its side.

FOR THE GREATER GOOD: THE R ESPONDENTS APPROACH


As respondents the task of the counsel representing the Government of India in these
arbitration proceedings need not be to out rightly deny that the judgment adversely
affects the investors. If proved that the judgment falls within the category of state
regulations which are equitable, reasonable, non-discriminatory and a necessity for
the public interest of the country then there arises no need to compensate the loss
which the claimant incidentally suffers in the process.
State measures which are, prima facie, in legal exercise of its power do not
necessarily give rise to an obligation to compensate even if implementation of such
measures will cause considerable economic loss to the investor. xxxiv
The tribunals have also recognised this as the effective law. In this respect, the
respondents will be wise to quote the extremely apt and astute observation made by
the tribunal in the Saluka casexxxv which reads as follows:

[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
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of their regulatory powers, they adopt in a non-discriminatory


manner bona fide regulations that are aimed at the general
welfare.xxxvi
Similar opinion was reiterated in the tribunal decision of Methanex v. USA where it
was held that bona fide measures of the government which are enacted or come into
being after due process of law and are not discriminatory do not give rise to any
obligation to compensate an investor.xxxvii
To refuse a state its sovereign right to alter its policies merely because the same is
adverse to the interest of a handful of foreign investors is attacking the most revered
auspice of international law- that of self-governance. Therefore, while evolving the
jurisprudence on expropriation the jurists actively ensured that the states right to
rule for the benefit of national interest was not curtailed unnecessarily or in entirety.
It has been recognised by various tribunal decisions that a measure enforced in order
to promote established principles of social welfare need not create an expropriation as
the same is within the absolute right of the state to govern on. xxxviii There exist
legislation and international documents that provide illustrations of those acts of the
state which are widely accepted as within the purview of its police powers. A possible,
though non exhaustive, list of such powers is provide in the Restatement (Third) of
Foreign Relations Law of the United States xxxix. It includes bona fide general taxation,
regulations, forfeiture for crime or any such action of the kind which is commonly
accepted as within the police powers of the state.xl
In CPIL v. Union of India xli, the Supreme Court has ruled that the procedure involved
in the granting of the 2G licenses are arbitrary, discriminatory and therefore violates
the fundamental right of equality xlii guaranteed by the Indian Constitution. There
exists no role of the state which could overshadow its paramount role of upholding
the nations constitution. This ensures that any measure taken in pursuance of this
cannot give rise to expropriation that needs to be compensated under the
international investment law.

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The respondents are likely to highlight that segment of jurisprudence on


expropriation which focuses on the purpose and nature of the measure as being the
important criterion for determining whether an economic loss of an investor comes
within the purview of expropriation. It is likely to highlight the recent tribunal
decisions which indicate that for a claim of expropriation to be successful, the
claimants have to establish that 1) there is an enrichment of the host state at the cost
of the investorxliii 2) a deliberate targeting of the investor xliv and most importantly 3)
lack of a proportional overriding public interest for which the measure was enacted
or enforced xlv . Not every economic loss of an investor can be considered a
masquerading expropriation; especially when domestic investors are facing similar
losses.xlvi
As far as the argument of legitimate expectation is concerned, it neednt necessarily
act against the interests of the respondent in this particular case. A legitimate
expectation on behalf of the investor includes a legitimate expectation and
acceptance of possible risks that might arise in doing business in another nation;
these risks are considerably higher when the sector in which the investment is made
is as heavily regulated as the Indian telecom sector. To assume that a license
fraudulently and arbitrarily granted will not be revoked and if revoked be
compensated is a far-fetched as well as an unreasonable expectation. In Starett

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.

THE AMALGAMATING APPROACH AND A WARNING: THE


POSSIBLE CONCLUSION
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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:

[t]here must be a reasonable relationship of proportionality between


the charge or weight imposed to the foreign investor and the aim
sought to be realized by any expropriatory measure.xlix
As far back as 1962, Proffessor Christie had considered even severe government
measures, which if undertaken for just as fundamental a public purpose, to not be
considered an expropriation that should be compensated. l The wide acceptance of
this test in the international forum can also be adjudged by the fact that many
Bilateral Agreements that have been entered into in the past decade explicitly
exclude a measure designed to protect legitimate public welfare from within the
purview compensable expropriation.li
Some of the earliest and most vehement supporters of this test are the European
Courts while ruling under the European Charter of Human Rights. In the case of

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

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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

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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

Times, Oct 2, 2013, http://articles.economictimes.indiatimes.com/2013-10-02/news/42617622_1_khmlloop-telecom-arbitration-notice


iii

Bilateral Invetment Promotion and Protection Agreement, Ind-Mauritius, Article 6.

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.

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vi

Andrew Newcombe and Llus Paradell , Law and Practice of Investment Treaties: Standards of

Treatment, (Kluwer Law International 2009) pp. 394


vii

Fortier and Drymer, Indirect Expropriation in the Law of International Investment: I Know It When

I See It, or Caveat Investor, 19(2) ICSID Review 293 (2004)


viii
ix
x

I. Brownlie, Priniciples of Public International Law, 534 (5 th ed., 1998)

M. SORANARAJAH, T HE INTERNATIONAL L AW ON FOREIGN INVESTMENT, 7 (2ND ED, 2004)

SUPRA N. 6, P. 3.

xi

P. MUCHLINSKI, F. O RTINO & C. SCHREUER (EDS.), T HE O XFORD HANDBOOK OF INTERNATIONAL

INVESTMENT L AW , O XFORD UNIVERSITY PRESS, 407-458 (2008)


xii

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

ARBITRAL TRIBUNAL, AUGUST 30, 2000.


xvi

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

Creeping Expropriation, 16 Virginia Journal of International Law, 112 (1975)


xviii

OECD , ""Indirect Expropriation" and the "Right to Regulate" in International Investment

Law", in International Investment Law: A Changing Landscape: A Companion Volume to

International Investment Perspectives , OECD Publishing, 43-72 (2005)


xix

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.

(February 17, 2000).

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.

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Elizabeth Snodgrass, Protecting Investors Legitimate Expectations: Recognizing and Delimiting a

xxviii

General Principle, 21 ICSID RevFILJ 1, 36 (2006).


xxix

Kenneth J Vandevelde, A Unified Theory of Fair and Equitable Treatment, 43 New York Univ J

Intl L & Pol, 69 (2010-11).


xxx

International Thunderbirds Gaming Corporation v. United Mexican States , NAFTA Arb.Tr,, 2006.

xxxi

Id, para. 37.

xxxii

MTD Equity Sdn Bhd and MTD Chile S.A. v. Republic of Chile, ICSID Case No. ARB/01/7, Award,

May 25, 2004 (hereinafter MTD), available at http://www.asil.org/ilib/MTDvChile.pdf.


xxxiii

Supra n.23.

xxxiv

Supra n.8.

xxxv

Saluka Investments BV (The Netherlands) v The Czech Republic, UNCITRAL, Partial Award, para

307, (17 March 2006)


xxxvi

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

Lauder (U.S.) v. Czech Republic

(Final Award) (September 3, 2002) available at

www.mfcr.cz/scripts/hpe/default.asp
xxxix

Restatement of the Law Third, the Foreign Relations of the United States, American Law

Institute, Volume 1 (1987) Section 712.


xl

Ibid.

xli

Centre for Public Interest Litigation v. Union of India, 2011(2)ACR1912(SC).

xlii

The Constitution of India, 1949, Article 14.

xliii

Eudoro Armando Olgun v . Republic of Paraguay. ICSID Case No. ARB/98/5 (1997)

xliv

Sea-Land Services, Inc. v. Iran, 6 IRAN-U.S. C.T.R., at 149.

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

(2002) pp. 39-67.


xlvii

Starrett Housing Corp. v. Iran, 16 IRAN-U.S. C.T.R., 112.

xlviii

Supra n. xxiii

xlix
l

Supra n. xxiii, para 122

G.C. Christie, What Constitutes a Taking of Property Under International Law, 38 Brit. Y.B.

Intl L. 307 (1962).

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li

For example see US-Singapore, US-Chile BIT.

lii

James and others v. United Kingdom, (1986) 8 EHRR 123

liii

Sporrong & Lonnroth v Sweden (1982) 5 EHRR 85)

liv

Ibid.

lv

Supra n. xvii.

lvi

Sistema threatens arbitration in 2G case, Times of India, Feb 28, 2012

lvii

Kawaljit

Singh,

Sistema

Threatens

to

Invoke

Bilateral

Investment

Treaty ,

http://www.madhyam.org.in/admin/tender/Sistema%20Threat2.htm

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JUVENILE JUSTICE: IS AGE LIMIT THE RIGHT


CRITERIA TO DEMARCATE A PERSON FROM
GETTING PROPER PUNISHMENT?
SNEHA PRIYA
ABSTRACT
Its really an irony that the most brutal of all the accused in brutal December 16
Delhi gang-rape case, wherein a 23-year-old girl was gang-raped and brutally beaten
on a bus, is a juvenile and hence shall get away with a milder punishment of three
years in a correction facility. A nationwide sensation erupted when this verdict was
given. It is also pertinent to know that as it was described by the police officers, he
was the most brutal out of all the accused. India registered 23.87 lakh juvenile
delinquency cases in 2012. This case has received such unprecedented publicity, that
it has set the worst possible precedent for juvenile offenders.

The paper aims at analysing whether the punishment awarded to juveniles


under the juvenile justice (care and protection of children) act is justified and
proportionate to the heinous crime they commit. The intention behind the crime, the
degree of the perpetrated atrocity and the severity of the crime should be the
parameters to judge a case when a juvenile is involved. It is a sad state of affairs that
age factor plays a major role many times.
It is unfair to the country if the perpetrators of such heinous crimes be pardoned and
let loose in the society. A new juvenile law should be implemented which considers
not just the age, but also the degree of atrocity conferred. What should be considered
is the intention and severity of the offence and hence the age of the minor should not
be the only deterrent.
Keywords: Juvenile, rape, death penalty, justice, criminal
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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.

AN INSIGHT INTO THE JUVENILE JUSTICE SYSTEM OF INDIA


Young offenders were treated by criminal law in India in the same manner as adult
offenders. The law governing them sentenced them to institutions like prisons where
adult and juvenile offenders were dumped together. The first major legislation in
this regard in India was the Apprentices Act, 1850 through which the Magistrates
were authorized to act as guardian in respect of a destitute child or any child
convicted of vagrancy or the commission of a petty offence and could bind him as an
apprentice to learn a trade, craft or employment. i Then we had the Reformatory
Schools Act, 1897 which made a beginning for incorporating the rehabilitative
techniques in the penal philosophy for juvenile offenders. The Act provided that
young offenders up to 15 years of age found guilty of offences punishable with
imprisonment or transportation were not to be sent to ordinary prisons but to

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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

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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

JUVENILE JUSTICE- THE WORLD IN A NUTSHELL


In United States Definition of juvenile varies from state to state-the lowest is 14 at
which a youth can receive adult sentences for serious crimes. In 2011, Wisconsin
teenager Brogan Rafferty, 16, was charged with two offences: Killing a man and
attempting to murder another. He was tried as an adult and sentenced to prison. The
same year, a 12 year old Colorado boy shot his parents to death and attacked two
younger siblings, the motives of which remain a mystery. He was sentenced in
Juvenile court to seven years in detention after pleading guilty.

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

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WHAT DOES THE NATION WANT?


One of the six men involved in the Nirbhaya gang-rape in Delhi, was a juvenile at the
time of committing the crime. And while the rest of the co-accused was awarded
death sentences recently, the juvenile walked away a free man after three years at a
reformatory home as per the Juvenile Justice Act. xii The whole country was outraged
by this judgement. The punishment for a crime must be awarded regardless of the
age of the perpetrator.
In July, the Supreme Court dismissed eight petitions brought by the public asking
them to rule that crimes of rape and murder committed by juveniles should be tried
and punished under adult laws and that the upper age limit for juveniles be lowered
to 16. The three-judge bench said in its order that there are, of course, exceptions
where a child in the age group of 16 to 18 may have developed criminal
propensities, which would make it virtually impossible for him or her to be
reintegrated into mainstream society, but such examples are not of such proportions
as to warrant any change in thinking. With great respect for the decision, I would
simply like to state that is it fair that just because of the same few exceptions a
woman or rather a few million womens lives are spoilt and scarred forever.

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

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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.

CAUGHT IN THE ACT?


The police apprehended five juveniles for the gang-rape of a minor girl in a locality
under Basistha police station in Guwahati. xviiiThe victim, aged about 12 years, was
playing with the five when they lured her to a hut and raped her from Saturday night
till wee hours of Sunday, the police said. All the five accused have been sent to
Observation Home at Boko in Kamrup district. xixWithin few hours of lodging of the
FIR, all the five accused were apprehended. They claimed to be juveniles. xx
The NCRB data also shows rapes committed by juveniles have jumped by 188%. The
only categories of crimes involving juveniles for which growth figures are higher are
theft and robbery which recorded a growth rate of around 200% and abduction
of women which recorded and exponential rise of 660%.Again, while the debate on
the issue of revisiting age limit in juvenile crimes has focused on the juvenile justice
act being a reformatory tool, the NCRB data is not very encouraging, especially in
case of Delhi. Close to 22% of all juvenile criminals in Delhi were repeat offenders in
contrast to the national average of 11.5%. Sources say even this data gives a very
conservative figure as only those convicted earlier are called repeat offenders. Also
those who have turned adults and continued in crime are not included. The grim
picture this paints is a reflection of the failure of remand homes to reform
juveniles.xxi

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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.

A COMMON MANS PERSPECTIVE.


Unfortunately, the current system serves neither the purpose of rehabilitation nor
deterrence against future crime. As reported by India Today, there are 815 remand
homes in India with a capacity of 35,000. However, there are 1.7 million juvenile
accused in India. Remand homes in India are not conducive to the reform and
rehabilitation of juveniles as envisioned by the principles enshrined in international
law. Rehabilitation is certainly an important aspect but at the same time we need to
protect the woman and girls of our county. Whats the guarantee that the juvenile
after being let off will not commit the same crime? The interest of the society is of
utmost importance and if by losing one life in the process we are able to save many
more innocent lives then undoubtedly we are thinking about the safety and
betterment of the society. A legal deterrent must be created to protect the vulnerable
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in the society has to particularly in view of the significant increase in rapes


committed by juveniles. This ultimately brings us only to one conclusion. Yes, there
is a need for the amendment of the Juvenile Justice Act. What can be the possible
changes? Violent crimes such as rape and murder should be included in the adult
criminal system for the juveniles after a certain age. .
Any individual being so insensitive towards another human being of opposite gender
to sexually assault and hurt her physically so brutally shall not at all be considered
either a juvenile or requires any rehabilitation, as his act are far above an act of
mature and physically strong person. How can we simply classify that a 17 year old
boy was unaware that he was assaulting a poor girl and killing her physically and
emotionally.
The sad part about the laws is that we always look at the condition of the accused
when we are considering about cases involving juveniles. : Are they about 18? If they

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
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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
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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.

And death is an ultimate deterrent.

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REFERENCES
Apprentices Act, 1850,HELPLINE LAW,(Dec 15,2013,6:00 PM),

http://www.helplinelaw.com/docs/APPRENTICES%20ACT,%201850
ii

Reformatory Schools Act, 1897,LEGAL CRYSTAL, (Dec 15,2013,6:30 PM),

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

2000 5 SCC 488

The Juvenile Justice(Care and Protection of Children ) Amendment Act, 2006,MINSTRY OF LAW

AND JUSTICE,( Dec 17, 2013, 7:00 AM), http://wcd.nic.in/childprot/jjactamedment.pdf

Juvenile Justice Act,2000,CHILD LINE, (Dec 18,2013,09:00 PM),

vi

http://www.childlineindia.org.in/Juvenile-Justice-Care-and-Protection-of-Children-Act-2000.htm
vii

Blacks Law Dictionary

Section 82 of IPC, IPC, (Dec 15,2013,05:00 PM), http://ipcsections.wordpress.com/2010/02/26/ipc-

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

About the youth justice board, UK GOVT, (Dec 31,2013,09:55 pm),

http://www.justice.gov.uk/about/yjb
xi

Juvenile justice policy, NETHERLANDS YOUTH INSTITUTE,(Dec 19,2013,09:45 PM),

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

Juvenile Justice, JJ COMPARE, (Dec 20,2013,7:00 PM), http://jjcompare.org/2012/08/29/india-

summary/
xiv

Dismissal of Subramaniam Swamys plea, NDTV,( Dec 25,2013, 08:00 AM),

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

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Statistics of Juvenile crime, NRCB, (Jan 10,2014, 07:PM), http://ncrb.nic.in/CD-

xvi

CII2012/Statistics2012.pdf

December 16 gang rape: Juvenile gets only 3 yrs. jail. Is the law good enough to handle such cases?,

xvii

INDIA TODAY,(Dec 27,2013,08:45 PM), http://indiatoday.intoday.in/story/december-16-gangrapejuvenile-sentenced-to-three-years/1/305269.html


xviii

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

Gang Rape by minors, NDTV, (Jan 10,2013,08:45 AM), http://www.ndtv.com/article/cities/girl-

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

8 Gang rapes in 8 months in Mumbai, TIMES OF INDIA, (Dec 28,2013,09:00 AM),

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

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THE MINIMUM AGE OF CRIMINAL


RESPONSIBILITY IN INDIA: IS IT TO BE
BLAMED FOR THE INCREASING YOUTH
CRIME?
STUTI
ABSTRACT
Childhood is a notion that is subject to constant revision in any given era or place this phrase has assumed significant importance in the present legal scenario making
it inevitable to analyse if this understanding is indeed true or not. In the aftermath
of the Nirbhaya case in India, a big question has arisen with regard to the correctness
of the existing age of criminal responsibility in India. The following Essay delves into
this issue and attempts to draw a suitable conclusion with regard to the effectiveness
of the Indian Juvenile Justice system. The present age of criminal responsibility in
India according to the Juvenile Justice (Care and Protection for Children) Act, 2000 is
18 years. Juvenile offenders are accorded special treatment under this Act and are not
tried in the same Courts as adult offenders. The Essay explores the genesis and
jurisprudence behind such law through a study of the UN Conventions. The Essay
also tries to understand if there exists a need for changing the current age and
making special provisions foe serious offences. The Essay further touches upon
certain important issues including how stricter laws may prove counter-productive
for offenders who are forced into crime owing to the social environment they are
brought up in, and if the punishment should depend on the mental and intellectual
capability of each juvenile offender. Lastly, the Essay proposes certain changes with
regard to the Indian Juvenile Justice System to make it more effective.

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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?

THE AGE OF CRIMINAL R ESPONSIBILITY IN INDIA: CURRENT


SCENARIO
The Criminal system in India is governed and regulated by 2 major legislations
including the Indian Penal Code, 1860 (IPC) and the Code of Criminal Procedure
Code, 1973 (CrPC) . The IPC provides the substantive part laying out the rights and
responsibilities and the CrPC lays down the procedure to be followed by a Court of
Law in a criminal proceeding. The IPC has set the age of criminal responsibility at 12
years. An offence committed by a child under the age of 7 years is not punishable. i
Also, an offence committed by a child above the age of 7 years but below the age of
12 years will not be punishable if it seems that he does not possess sufficient maturity
to judge the consequence of his actions. ii
Further, it is believed that children cannot be put in the same category as adults
under the Criminal Justice system of the country and hence require development of

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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

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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

RELAINCE ON INTERNATIONAL JURISPRUDENCE


The first national legislation on Juvenile Justice was adopted by the Parliament in
1986 in the form of the Juvenile Justice Act, 1986. The 1986 law was the first attempt
in India to create a uniform, national, body of law and system of justice and
corrections for young people. This legislation however wasnt the first on juvenile
justice in India. Several states and union territories had enacted their own legislations
with respect to juvenile offenders. The era of such legislations had begun in the
period of British Rule with the enactment of the Apprentice Act, 1850. Next, the
Indian Penal Code, 1860 set the age for criminal culpability and the CrPC also went
to make provisions for separate trials for persons under the age of 15 years, and their
confinement in reformatories rather than prisons. xi The first legislative act in specific
regard to children was enacted by the State of Madras in 1920.xii This law defined a
youthful offender as someone who is below the age of 18 years. The Childrens Act
was passed in 1960 and the 1986 Act is an essentially an extension to this statue.
The 1986 Act was re-modelled to bring it in conformity with the UN Convention on
Rights of Child which the Government of India had ratified on 11 th December, 1992
and hence, came into existence the Juvenile Justice (Care and Protection of Children)
Act, 2000.xiii The existing law relating to juveniles was re-enacted bearing in mind the
standards prescribed in the Convention on the Rights of the Child, the United
Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985
(the Beijing Rules), the United Nations Rules for the Protection of Juveniles Deprived
of their Liberty (1990).xiv The Rights of Child Convention defines a child as every
human being below the age of 18 years. xv

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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
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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

IS THERE NEED FOR CHANGE?


One of the most visible examples for advocating a change in the current juvenile
justice system in India would be the 2012 Delhi gang-rape case, famously known as
the Nirbhaya case. It was a blotch not only on the juvenile justice system but also on
the criminal justice system as whole. A 23-old medical student was brutally beaten
and gang-raped in a moving bus in the southern part of Delhi. A total of 6 offenders
were involved in the crime, one of which was a 17-year old juvenile.
This incident sparked off several protests in various parts of the country demanding
stricter punishment for juveniles in India. This case has raised questions about the
effectiveness of the juvenile system in the country. There is on-going debate about
the correct age of criminal responsibility and whether such age needs to be lowered
or an exception needs to be made for serious crimes like rape and murder.
Statistics do certainly reveal an increasing trend in the rate of crime by juvenile in
the country. A study of crime rate in the past decade shows that the even though the
percentage of juvenile crime compared to total crime has increased by a mere 0.7%
over a span of 10 years, the percentage of juveniles committing the offence of rape
has increased by an alarming 53%.xxiv The police in the country have booked as many
as 1,316 juveniles on rape charges the whole of last year. Another 685 minor boys
were booked on charges of molestation. One of the 1,316 juvenile sexual offenders
was a 13-year-old boy in Coimbatore who abused his five-year-old neighbour after
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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
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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

WHETHER REDUCING THE AGE CAN TURN OUT TO BE


COUNTER -PRODUCTIVE?
The outrage caused post the Nirbhaya case resulted in people demanding for stricter
laws for juvenile offenders and further a reduction in age from 18 years to 16 years.
The SC touched upon on this matter examining the question of whether juvenile
maturity should be used as a yardstick before referring trial to the Juvenile Justice
Board in case of serious and heinous offences. xli In response to the same, The Women
and Child Development Ministry proposed an amendment to charge juveniles
between ages of 16-18 years of age involved in heinous crimes under the Indian
Penal Code. However, the amendment has faced strong opposition from agencies like
NCPCR, CRY, UNICEF and others citing the reason that it stands against the UN
Convention on Child Rights which has been ratified by India. xlii It has been argued
that such an amendment would result in retributive justice rather than restorative
and reformative justice. The US SC in the case Roper v. Simmonsxliii, agreed with an
overwhelming amount of psychological data pointing to the fact that adolescents
who were around the age of 17 were vulnerable to peer pressure, coercion, were
impulsive, more likely to take risks and make temporal decisions. xliv The main aim of
the Juvenile Justice Act is to save young offenders from getting sucked into the
criminal justice system so early on in life and to allow them to reform. However,
such amendment would not only defeat this aim but also not allow the offender to
recover from the punishment leaving his future in the dark. Juvenile offenders are
allowed some leeway on account of the fact that they may be immature and not fully
capable of understanding the consequences of their actions. Many further argue that
following on the footsteps of US and UK may not work for India as the crime reality
and trends varies considerably from that in India. The number of children being
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charged in US and UK is much greater as compared to in India. xlv Juvenile


delinquency has been known to arise due to several factors including family
influence, the social environment a juvenile has been brought up in and peer
pressure. At times, the demands of wants and needs are intensified by a society that
consists of high mobility, social change, and is materialistic. Also, social changes can
create anxiety and disillusionment for adolescents and thus they commit delinquent
acts.xlvi In US, some of the most frequent juvenile crimes include thefts, gun violence
and drug abuse. The increasing divorce rates and broken families is touted as one of
the main reasons for delinquency as it leaves the juveniles with an emotional
vacuum. Child welfare activists in India argue that that the Juvenile Justice Act is
essentially a welfare law and has been created for the care and protection of the
children, if harsher punishment is allowed for juveniles in the future, this Act would
fail in this objective. Further, they believe that every juvenile is made a criminal due
to the lack of required amenities and education for the child which the nation is
obligated to provide.

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
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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.

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REFERENCES
i

Section 82, IPC, 1860

ii

Section 83, IPC, 1860

iii

VED KUMARI, THE JUVENILE JUSTICE SYSTEM IN INDIA: FROM WELFARE TO RIGHTS, 11

(Oxford India Paperbacks) (2010)


iv

BRYAN A. GARNER, BLACKS LAW DICTIONARY, 884 (Thomson West) (2004),

Section 2(k), JJ Act, 2000

vi

Section 15, 16, JJ Act, 2000

vii

Section 6, JJ Act, 200

viii

Section 7, JJ Act, 2000

ix

Section 29, JJ Act, 2000

Section 44, JJ Act, 2000

xi

Section 298, 399 and 562, CrPC, 1973

xii

Madras Childrens Act, 1920

xiii

Preamble, JJ Act, 2000

xiv

Preamble, JJ Act, 2000

xv

Article 1, Convention on Rights of Child, 1989


Aparna Vishwanathan, Balancing the Juvenile Act, THE HINDU, September 9, 2013, (January 15,

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,

CHILDRENS RIGHTS AND

THE

MINIMUM

AGE OF

CRIMINAL

RESPONSIBILITY: A GLOBAL PERSPECTIVE, 3 (Ashgate) (2009)


xxi

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

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xxiii

Concluding Observations: Yemen, CAT/C/CR/31/4, 5 Feb 2004, pars. 6(1) and 7(I); Indonesia,

CAT/C/IDN/CO/2, 16 May 2008, Advance Unedited Vers., par. 17 (urgency)

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,

June 17, 2013 (January 15, 2013) <http://newindianexpress.com/states/tamil_nadu/NCRB-report-1316juveniles-booked-for-rape-last-year/2013/06/17/article1638450.ece>


Gyanant Singh, Age is no bar for sex crimes, suggests NCRB Report, INDIA TODAY IN, January

xxvi

28, 2013 (January 15, 2014)<http://indiatoday.intoday.in/story/adolescence-debate-juvenile-offencesncrb-report-2011/1/247858.html>


xxvii

Gangaram Raghunath v State of MP, AIR 1965 (MP) 122 (SB)

xxviii

Ramgopal v State, 1968 Cri LJ 1178 (MP) (SB)

xxix

Raghbir v. State of Haryana, 1981 Cri LJ 1497(SC)

xxx

(January 15, 2014)<http://www.aihw.gov.au/WorkArea/DownloadAsset.aspx?id=6442458890>

xxxi

Section 28(1), Children Detention Centres Act,1987

xxxii

Section 19, Children (Criminal Proceedings Act), 1987

xxxiii

(January 15, 2014)<http://www.aihw.gov.au/WorkArea/DownloadAsset.aspx?id=6442458890>

xxxiv

Ian Blakeman, The Youth Justice System of England and Wales , 139th International Training

Course Visiting Experts Paper,


xxxv

Section 90, 91, Powers of Criminal Courts (Sentencing) Act, 2000

xxxvi

In re Gault , 387 U.S. 1 (1967)

xxxvii

(January 15, 2014)< http://www.djs.state.md.us/history-us.asp>

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,

Dec 3, 2013 (January 15, 2014)<http://timesofindia.indiatimes.com/india/Should-juveniles-maturity-beyardstick-in-trials-SC-asks/articleshow/26757714.cms>


xlii

Himanshi Dhawani, Child rights panel against treating juveniles as adults , TIMES OF INDIA,

December 3, 2013

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xliii

Roper v . Simmons , 543 U.S. 551 (2005)

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,

Vol. 32, (2012) 89

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CASE COMMENT

T.N. GODAVARMAN THIRUMULPAD V.


UNION OF INDIA,
MANU / SC / 0028 / 2014
M.SAKTHIVEL
Environmental Law is one of the important areas in which the Supreme Court of
India has contributed a lot for the protection of all the spheres of environment by
creating new jurisprudences which inter alia includes Absolute Liability Doctrine i,
Even the international aspects of the environmental laws such as precautionary
principle, polluter pays principle and sustainable development ii have also been
incorporated. Even though these developments have been done by the Indian
Judiciary, the real contributors are the non state actors such as NGOs iii , private
organisationsiv and obviously the common man too. In this context, it is noteworthy
to quote that T.N. Godavarman Thirumulpads contribution for the protection of
environment in this country is immense. By filing a considerable number of Public
Interest Litigations (PIL), the green man intervened in various projects and ensured
that proper balance is achieved in between the utilization of resources and the
preservation of the same especially in the conservation of forest resources.v
In this regard, his new effort in the realm of forest conservation before the Supreme
Court has resulted in a major blow to the central governments decision to provide
hasty clearances to the projects that are connected with environment. The
Government of India has constituted a Cabinet Committee on Investment last year
for the purpose of exclusively dealing with the projects worth more than Rs.1000
crore.vi The Idea behind the formation of this committee is to act as a single window
facility which would facilitate the investors to obtain all types of clearances which
would be required for beginning such a mega project including environmental
clearances within a short span of time. However, it may not be a decisive solution
hereinafter because of the Apex Courts direction to appoint a regulator so as to
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monitor and approve the environmental impact assessment (hereinafter, EIA) at


the central as well as state level. Let us discuss the case in detail.
This interim application was filed to clarify certain points of the Apex Court in

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:

The Central Government may, if it considers it necessary or expedient so to


do for the purpose of this Act, by order, published in the Official Gazette,
constitute an authority or authorities by such name or names as may be
specified in the order for the purpose of exercising and performing such of the
powers and functions (including the power to issue directions under section 5)
of the Central Government under this Act and for taking measures with
respect to such of the matters referred to in sub-section (2) as may be
mentioned in the order and subject to the supervision and control of the
Central Government and the provisions of such order, such authority or
authorities may exercise and powers or perform the functions or take the
measures so mentioned in the order as if such authority or authorities had
been empowered by this Act to exercise those powers or perform those
functions or take such measures.
From the above provision, it is possible to be concluded that it is the Central
Governments discretion to appoint an authority if necessary subjected to a condition
that such authority would discharge its duties under the central governments
control. Even though, the statutory language provides discretionary power to the
central government, in Lafarge Umiam Mining case, the Supreme Court emphasized
the need for having a regulator at the national as well as state level for ensuring the
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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.

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(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

the Environment (Protection) Act, 1986, the Central Government should


appoint

National

Regulator

for

appraising

projects,

enforcing

environmental conditions for approvals and to impose penalties on


polluters.
(i.5.) There is one more reason for having a regulatory mechanism in
place. Identification of an area as forest area is solely based on the
declaration to be filed by the user agency (project proponent). The project
proponent under the existing dispensation is required to undertake EIA by
an expert body/institution. In many cases, the court is not made aware of the
terms of reference. In several cases, the court is not made aware of the study
area undertaken by the expert body. Consequently, MoEF/State Government
acts on the report (Rapid EIA) undertaken by the institutions who though
accredited submit answers according to the terms of reference propounded
by the project proponent. We do not wish to cast any doubt on the credibility
of these institutions. However, at times the court is faced with conflicting
reports. Similarly, the Government is also faced with a fait accompli kind of
situation which in the ultimate analysis leads to grant of ex post facto
clearance. To obviate these difficulties, we are of the view that a regulatory
mechanism should be put in place and till the time such mechanism is put
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in place, MoEF should prepare a panel of accredited institutions from which


alone the project proponent should obtain the Rapid EIA and that too on the
terms of reference to be formulated by MoEF.
From the above judicial pronouncement, it becomes evident that the Supreme Court
gave a mandatory direction to the Central Government to appoint a regulator for the
purpose of EIA. The same view has been re-affirmed with a time frame for
appointing the regulator. The Full Bench, while upholding the same view, stated that
it is the power of the central government with a mandatory duty to appoint an
authority under the same provision. Therefore, the central government has been
directed to appoint an authority/ a regulator at the national level having offices at as
many states possible. This shall be complied before 31st March, 2014.
With respect to the second issue, in Lafarge Umiam Mining case, the Supreme Court
held that section 2 of the FCA, 1980 which says that the prior approval of the central
government is required for converting the forest land for the non forest purpose,
should be read with section 3 of the EPA, 1986 in the light of National Forest Policy,
1988. Due to this observation, the central governments power under section 2 of the
FCA, 1980 x has been restricted because the power is very wide than other
environmental legislations. Under section 3 of the EPA, 1986, the Central
Government has the power to appoint an authority for EIA clearances whereas in
section 2 of the FCA, 1980, the Central Government itself will give the clearances.
This has been brought to the kind notice of the Apex Court in the present case and it
has been clearly held that the authority/regulator appointed under section 3(3) of the
EPA, 1986 can only discharge its duties with respect to section 3(2) of the EPA, 1986.
The regulator shall not step into the power conferred on the central government
under section 2 of the FCA, 1980 xi.
The Full Bench has rightly exercised its power to interpret the section 3(3) of the
EPA, 1986 by saying that there is a power coupled with a duty to appoint a regulator
for the purposes of EIA, and that is mandatory for ensuring proper mechanism to be
put in place. This decision has to be appreciated because of the fact that this decision
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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.

CABINET COMMITTEE ON INVESTMENT AND THE R EGULATOR


As above stated, the central governments decision to speed up the clearance process
for the mega projects would be done by the Cabinet Committee on Investment.
However, hereafter those clearances shall be subjected to the regulator to be
appointed under section 3 of the EPA, 1986. By doing so, the clearance of the projects,
would be based on necessary

established procedures Once these procedures are

complied by the regulator, the environmental decision making process would


become more and more transparent. However, it may again slowdown the
implementation of those mega projects xiiwhich would be very much essential to keep
the economy on a higher growth trajectory.
Even though the regulator shall act as per the directions given by central
government from time to time, it is not feasible for the regulator to provide a
differential treatment for different projects. Therefore, it is worthwhile to conclude
by stating that the appointment of a regulator would add a hurdle for the mega
projects but surely would help in bringing more transparency in the environmental
decision making process.

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

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. See T.N. Godavarman Thirumulpad v. Union of India, AIR 1997 SC 1228, AIR 1998 SC 769, AIR
1999 SC 97, (2006) 1 SCC 1, etc
vi
. See Constitution of Cabinet Committee on Investment dated 2 nd January, 2103. The same can be
accessed at http://cabsec.nic.in/showpdf.php?type=cci_notification (20th January, 2014)
vii
. (2011) 7 SCC 338
viii
. Environment (Protection) Act, 1986, s.3(2) reads: (2) In particular, and without prejudice to the
generality of the provisions of sub-section (1), such measures may include measures with respect to all
or any of the following matters, namely:-- (i) co-ordination of actions by the State Governments,
officers and other authorities--(a) under this Act, or the rules made there under, or (b) under any other
law for the time being in force which is relatable to the objects of this Act;(ii) planning and execution
of a nation-wide programme for the prevention, control and abatement of environmental
pollution;(iii) laying down standards for the quality of environment in its various aspects;(iv) laying
down standards for emission or discharge of environmental pollutants from various sources
whatsoever: Provided that different standards for emission or discharge may be laid down under this
clause from different sources having regard to the quality or composition of the emission or discharge
of environmental pollutants from such sources;(v) restriction of areas in which any industries,
operations or processes or class of industries, operations or processes shall not be carried out or shall
be carried out subject to certain safeguards;(vi) laying down procedures and safeguards for the
prevention of accidents which may cause environmental pollution and remedial measures for such
accidents;(vii) laying down procedures and safeguards for the handling of hazardous substances;(viii)
examination of such manufacturing processes, materials and substances as are likely to cause
environmental pollution;(ix) carrying out and sponsoring investigations and research relating to
problems of environmental pollution;(x) inspection of any premises, plant, equipment, machinery,
manufacturing or other processes, materials or substances and giving, by order, of such directions to
such authorities, officers or persons as it may consider necessary to take steps for the prevention,
control and abatement of environmental pollution;(xi) establishment or recognition of environmental
laboratories and institutes to carry out the functions entrusted to such environmental laboratories and
institutes under this Act;(xii) collection and dissemination of information in respect of matters
relating to environmental pollution;(xiii) preparation of manuals, codes or guides relating to the
prevention, control and abatement of environmental pollution;(xiv) such other matters as the Central
Government deems necessary or expedient for the purpose of securing the effective implementation
of the provisions of this Act.
ix
. Environmental Impact Assessment notification, 2006 has been issued by the Central Government
u/s 3 & 6 of the Environment (Protection) Act, 1986.
x
. Forest (Conservation) Act, 1980, s.2 reads: Restriction on the dereservation of forests or use of forest
land for non- forest purpose. Notwithstanding anything contained in any other law for the time being
in force in a State, no State Government or other authority shall make, except with the prior approval
of the Central Government, any order directing- (i) that any reserved forest (within the meaning of the
expression" reserved forest" in any law for the time being in force in that State) or any portion thereof,
shall cease to be reserved;(ii) that any forest land or any portion thereof may be used for any nonforest purpose.(iii) 1[ that any forest land or any portion thereof may be assigned by way of lease or
otherwise to any private person or to any authority, corporation, agency or any other organisation not
owned, managed or controlled by Government;(iv) that any forest land or any portion thereof may be
cleared of trees which have grown naturally in that land or portion, for the purpose of using it for
reafforestation.] 1[ Explanation.-- For the purpose of this section" non- forest purpose" means the
breaking up or clearing of any forest land or portion thereof for-(a) the cultivation of tea, coffee,
spices, rubber, palms, oil- bearing plants, horticultural crops or medicinal plants;(b) any purpose other
than reafforestation, but does not include any work relating or ancillary to conservation, development
and management of forests and wild life, namely, the establishment of check- posts, fire lines, wireless
communications and construction of fencing, bridges and culverts, dams, waterholes, trench marks,
boundary marks, pipeline or other like purposes]
v

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xi

. 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

INTRODUCTION TO THE CONTRIBUTORS


AASTHA TIWARI ________________________________________________________
Student, IIIrd Year, Symbiosis Law School, Pune, Maharashtra, India

AKASH KUMAR__________________________________________________________
Assistant Professor, School of Law, MATS University, Raipur, Chhattisgarh, India

ALWYN SEBASTIAN ______________________________________________________


Student, School of Law, Christ University, Bangalore, Karnataka, India

ANAND PAWAR__________________________________________________________
Associate Professor of Law, Rajiv Gandhi National University of Law, Patiala, Punjab

ANIRUDDHA KUMAR ___________________________________________________


Student, IVth Year, National Law University, Delhi, India

BHAGIRATH ASHIYA ____________________________________________________


Student, School of Law, Christ University, Bangalore

KARTIK CHAWLA _______________________________________________________


Student, IInd Year, NALSAR University of Law, Hyderabad

M SAKTHIVEL ___________________________________________________________
Assistant Professor, University School of Law and Legal Studies, Guru Gobind Singh
Indraprastha University, New Delhi, India

MAYANK SAMUEL _______________________________________________________


Student, NALSAR University of Law, Hyderabad

NARESH GUPTA _________________________________________________________


Student, IIIrd Year, Symbiosis Law School, Pune

PRERNA__________________________________________________________________
Student, School of Law, Christ University, Bangalore

RICHA KASHYAP ________________________________________________________


Student, IVth Year, BBA-LL.B, School of Law, KIIT University, Bhubaneswar, Odisha

SHUBHANGI _____________________________________________________________
Student, Gujarat National Law School, Ahmedabad

SNEHA P RIYA YANAPPA_________________________________________________


Student, Ist Year, Symbiosis Law School, Pune

STUTI BHATIA __________________________________________________________


Student, Gujarat National Law School, Ahmedabad

VIVEK SAURAV __________________________________________________________


Student, IVth Year, BBA-LL.B, School of Law, KIIT University, Bhubaneswar, Odisha

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BHOPAL, MADHYA PRADESH
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