N. J. Comp. Law Vol. 5 (2) 2018 pp.

ISSN : 2393 - 9338

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 ABOUT THE JOURNAL
N. J. Comp. Law Vol. 5 (2) 2018 pp. ISSN : 2393 - 9338
National Journal of Comparative Law(NJCL) is a biannual and peer-reviewed Journal published by JPMS
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 N. J. Comp. Law Vol. 5 (2) 2018 pp. ISSN : 2393 - 9338

N J C L
National Journal
of
Comparative Law
Volume 5, Issue 2, 2018
Dec 2018
UGC Approved Journal : Search Term 31636, Jr. No. 41330
Cite this volume as 5(2) NJCL(2018) and so on....

This Journal is an academic and peer-reviewed publication

(Print ISSN : 2393 - 9338 )

© Journal on Comparative Law. All rights reserved. No portion of material can be reproduced in part or full
without the prior permission of the Editor.
Note : The views expressed herein are the opinions of contributors and do not reflect the stated policies of the
JPMS Society

JPMS Society
H.Office: 22, Gaur Galaxy, Plot No 5, Sec-5, Vaishali NCR, Ghaziabad , DELHI NCR - 201010 (INDIA)

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 National Journal
N. J. Comp. Law Vol. 5 (2) 2018 pp.
ISSN : 2393 - 9338

of
Comparative Law
Volume 5, Dec 2018 Issue 2, 2018
Editorial Board
PATRON
PC. M. Jariwala
Dean (Academics) - Chairperson
Dr. Ram Mahohar Lohiya National Law University, Lucknow.U.P.

Members of Editorial Advisory Board Ali Mehdi

Professor of Law, Banaras Law School, Ba-
naras Hindu University, Varanasi,(U.P.)
Justice D. P. Singh
Judge (Retd.), Allahabad High Court, Lucknow
Bench, Lucknow
Rajiv Khare
Faizan Mustafa Professor and Chairperson, Environmental Law
Vice-Chancellor, NALSAR Department, National Institute of
University of Law, Hyderabad. Law University, Bhopal.

S.K.Bhatnagar Satish C. Shastri

Vice-Chancellor, Director/Dean, School of Legal Studies,
Dr. Ram Manohar Lohiya, Modi Institute of Technology,
National Law University, Lucknow. Sikar (Rajasthan)

Paramjit S. Jaswal
Vice-Chancellor, Rajiv Gandhi National Law Editor-in-Chief
University, Patiala. (Punjab) Manik Sinha
Former Dean, Faculty of Law,
Dr R.M.L Avadh University,
Faizabad (UP), Senior Advocate, Govt of India,
J.S.Patil High Court, Lucknow.
Vice-Chancellor,
National Law Unversity and Judicial Academy,
Guwahati (Assam) Chief Editor
Usha Tandon
S. Surya Prakash Professor-In-Charge, Campus Law Centre Uni-
Vice -Chancellor, versity of Delhi, Delhi.
National Law university,
Vishakhapattanam Associate Editor
Yashwant Singh
Subhash Chandra Singh Former Dean, Faculty of Law,
Professor of Law, Gautam Buddha University, Dr R.M.L Awadh University and Pricipal(Retd.)
Greater Noida-201310 K. N. Institute of Social Science, Sultanpur U.P.

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 National Journal
N. J. Comp. Law Vol. 5 (2) 2018 pp. ISSN : 2393 - 9338

of
Comparative Law
Volume 5, Dec 2018 Issue2, 2018
Editorial Board

Coordinating Editor Rajpal Sharma,

Chairman and Dean,
Faculty of Law,
S. C. ROY
Kurukshetra University,.
Professor, Dean, Research & Development, Kurukshetra (Haryana)
Chanakya
National Law University, Patna (Bihar) B. Gopal Krishnan
Asstt. Prof. of Law, Kerala
Managing Editor
University
A. K. Singh Thiruanantpuram
Assistant Professor of Law,
K.S. Saket P.G. College, Faizabad U.P.
Members of Editorial Board
EDITORS
Avimanyu Behera
Chidananda Reddy S. Patil Principal,
Dean & Director Karnataka State Law Uni- Midnapore Law College,
versity Navanagar, Hubballi. (Karnataka) Vidyasagar University,
Midnapore-721 102.(West Bengal)

Shaber Ali. G Pradip Kumar Das

Head of the Department,V.M.
Salgaocar College of Law,
Miramar, Caranzalem (PO),
Panaji – 403002.( Goa)
Shishir Tiwari
Assistant Professor, Department of Law,
North-Eastern Hill University, Shillong 793022.
(Assam)
Assistant Professor & Head(I/C), School Of
Law And Governance, Central University of
Bihar, Gaya (Bihar)
Rajib Bhattacharyya
Assistant Professor, University Law College,
Guwahati University , Guwahati (Assam)
Achyutananda Mishra
Associate Professor, School of Law,
Christ University, Bengaluru

D. S. Prakasa Rao,
Principal, Jaspal Singh
Dr. B.R.Ambedkar College of Law, Principal,
Andhra Universitry, Khalsa College of Law,
Vishakhapatnam (A.P) Amritsar (Punjab)

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 National Journal
N. J. Comp. Law Vol. 5 (2) 2018 pp.
ISSN : 2393 - 9338

of
Comparative Law
Volume 5, Dec 2018 Issue 2, 2018
Editorial Board
Sunil Gladson Anand Kumar Tripathi
Asstt. Professor of Law, Asstt. Professor of Law,
The T.N. Dr. Ambedkar Law University,. Raksha Shakti University,
Chennai (T.N.) Ahmadabad (Gujrat)

© National Journal of Comparative Law. All rights reserved. No portion of material can be reproduced in part or full
without the prior permission of the Editor.
Note : The views expressed herein are the opinions of contributors and do not reflect the stated policies of the JPMS
Society. Correspondence: All enquiries, editorial, business and any other, may be addressed to: The Editor-in-chief,
National Journal of Comparative Law (NJCL), H.Office: 22, Gaur Galaxy, Plot No 5, Sec-5, Vaishali NCR,
Ghaziabad , DELHI NCR - 201010 (INDIA) .
Email : manik.sinha2@gmail.com; arp@manishanpp.com, manisha_npp@yahoo.com, www.manishanpp.com.

ISSN : 2393 - 9338

ISSN : 2393 - 9338
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 National JournalISSN
N. J. Comp. Law Vol. 5 (2) 2018 pp. : 2393 - 9338

of
Comparative Law
Volume No. 5 Dec 2018 Issue 2, 2018
Contents
S. No. Title Page No.

1 HUMAN RIGHTS OF SENIOR CITIZENAMIDST FAMILY DISINTEGRA- 1

TION AND SOCIAL DISORGANISATION:Contemporary Issues In Social Jus-
tice Perspectives
S. C. Roy

2 THE SURROGACY IN INDIA ISSUES & PERSPECTIVES 14

Avimanyu Behera

3 TIME TO RECONSIDER THE LAW OF PATENTS OF ADDITION 30

P. P. Rao

4 DEVELOPMENT INDUCED DISPLACEMENT AND RESETTLEMENT LAW 37

IN INDIA: AN ANALYSIS ABOUT IT
Sudipta Patra

5 YASH GHAI ON CULTURAL RELATIVISM 43

Ajay Kumar Singh

6 LAWS RELATING TO CORPORATE CRIMINAL LIABILITY IN INDIA 53

6. Shail Suta

7 ENVIRONMENTAL SUSTAINABILITY AND SOCIAL JUSTICE 59

Pradeep Kumar

8 ACCESS TO ESSENTIAL MEDICINE AND HUMAN RIGHTS CONCEPT 69

IN INDIA

Abhishek Kr. Tiwari & Nemi Chand Saini

9 JUDICIAL ACTIVISM REGARDING CHILD TRAFFICKING 75

Sudhakar Prasad Tripathi & Ved Prakash Rai

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 N. J. Comp. Law Vol. 5 (2) 2018 pp. 1-13 ISSN : 2393 - 9338

HUMAN RIGHTS OF SENIOR CITIZEN

AMIDST FAMILY DISINTEGRATION
AND SOCIAL DISORGANISATION:
Contemporary Issues In Social Justice Perspectives
S. C. ROY
Professor of Law, Dean-Research and Development.
Chanakya National Law University, Patna

Email : scroy2010@gmail.com

ABSTRACT

“Add life to the years that have been added to life”.[UN]

Of the four stages of life, old age is the golden period, loaded with experience but
feeble health requires psychological, emotional and economical support from kith-n-
kin.The joint family system had unquestioned- natural social security to parents and
senior citizens with all reverence. The development of civilization with industrialization
disorganized the social life. The cut throat competition and rat race for wealth and
position have erased the human values that integrates human being with family, so-
ciety and culture. The result is the cry of senior citizens in the ‘old age shelter homes ‘to
lament for the past- ‘lost respect’, for present-health, emotional and physical support,
for the future-the isolated, artificial-self-centered, commercial life. The callous fifties
in dreams will face the challenges of next sixties. Hence the paper seeks to discover
the stable solution for the world where seniors cannot be neglected as liability rather
treated as assets with reverence for the healthy upbringing of children and grooming
of couple, moralizing the society, managing the local self-governance, establishing
human dignity and social justice.

Key Words : Senior Citizen, Human Rights, Human Dignity, Social Solidarity, Family
Disintegration, Social Disorganization, Social Justice.

PAGE : 13 REFERENCES : 09

I NTRO DU C TION customary principles/friend of children/

Every person above the age of sixty years
is a senior citizen. At this journey of life,
every person suffers from physical &
mental weakness, economic-dependen-
cy and emotional imbalance. The joint
family system had been an umbrella and
the seniors were taken as ‘god/divine
man/ experienced man /guru and guide/
social judge /moral police / interpreter of
economic planner/family head /social
coordinator/savior of culture and tradi-
tion’. The senior citizens were the subject
of ‘respect ‘and object of ‘social security
and solidarity’ in return. With the pace of
time, the industrialization, migration, ur-
banization, commercialization led family
disintegration and social disorganization.
The senior citizens became the most se-

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 N. J. Comp. Law Vol. 5 (2) 2018 pp. 1-13
riously injured species by their own kith
and kin.Thus the climate change in the
family set up forced the Indian Govern-
ment to legislate, ‘The Maintenance and
Welfare of Parents and Senior Citizen Act
2007’, which obliges the children and rela-
tives to look after and provide for mainte-
nance of food, clothing, residence, medi-
cal treatment and protection of life and
property. The government has provided
concessions in train travel, income tax,
and extra interest on savings, medical
benefit and day care homes. But can any
legislation or machinery guarantee day to
day ‘care and protection’ as our own ‘off-
springs’? The saga of uncouth suffering is
long locally, national and globally.
This issue of senior citizen was focused in
Vienna by UN in the World Assembly 1982,
adopted set of principles as to provide
opportunity to respectful work; integrating
to society and participate in policy formu-
lations; access to health care and main-
tenances of physical-mental & emotional
well-being; access to educational, cul-
tural, spiritual and recreational resources
of society; living with human dignity and
social security, freedom from exploitation
and physical abuse. The Madrid assem-
bly 2002, revised the Vienna assembly,
and resolved to integrate the older per-
sons into national as well as international
economic and social development poli-
cies. The Macao (China) 2007, reviewed
the Madrid plan and recommended the
need of older persons for social develop-
ment ensuring supportive environment
in return. The 2002 UN review found sev-
eral common challenges-discrimination,
neglect, humiliation, abuse and violence
that undermine the socio-economic and
cultural participation of the senior citizens.
In this context, the paper seeks to find an-
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swer to the question of the human rights
of senior citizens and responsibility of the
juniors with reference to universal decla-
ration of Human rights (UDHR 1948) and,
declaration of duties and responsibilities
(DHDR 1998) respectively. Can any gen-
eration sustain without respect to their
ancestors? Whether the doctrine of ‘sus-
tainability’ is relevant to ‘flora & fauna’, ‘en-
vironment and industry’ only? Can we ig-
nore the ‘bonding & binding force’ of the
family and society? Can we expect social
justice amidst the ‘cough and cry’ of an-
cestors?
FIRST WORLD ASSEMBLY
ON AGEING
For the first time in 1948, Argentine drew
the attention of General Assembly towards
the cause of elderly people. Although this
certainly created shocking reaction but
could not be materialise due to lack of
majority support. A report on “Welfare of
the Aged: Old Age Rights” was then ta-
bled in 1950 by the office of the Secretary-
General of the UN. It started debate on the
“Welfare of the Aged”. The government of
Malta proposed in 1969 the issue of “Age-
ing” which became a topic of concern on
the United Nations permanent agenda.
Several suggestions during 1970s result-
ed in the decision to hold the very first
World Assembly on Ageing in Vienna/
Austria in 1982. It was preceded by tech-
nical regional pre-conferences to prepare
input according to the situation and the
perception of population changes in the
different parts of the globe. It concluded
by the adoption of the first ever “Inter-
national Plan of Action on Ageing”. This
ground-braking instrument highlighted
the economic and social consequences
of population ageing and emphasized the
specific needs of older persons. It recom-
 N. J. Comp. Law Vol. 5 (2) 2018 pp. 1-13
mended to member states in seven spe-
cific domains: health, housing, the family,
social welfare, employment and income
security, education and research/training.
It also suggested three areas of interna-
tional cooperation in the development of
policies, strategies and programmes on
ageing: data collection and analysis, train-
ing, education and research. Ageing is a
natural process. Those who are in early
fifties today, will be senior citizen in next
decade. In the European countries it was
realized as a serious problem because of
declining birth rate. Better healthcare and
medicine made life expectancy continu-
ously to increase. This posed a great chal-
lenge to their love, care and protection for
longer period roughly up to ninety years of
age. Thus the senior citizenry, after 1950
all over the world, required to be cared
for three decades. Therefore a committee
was set up to address the demographic
shifts. The increase of older population
segments projected unique burdens on
developing and developed nations alike.
With this goal in mind, the United Nations
held the first World Assembly on Ageing
in 19821. The Assembly predicted that the
number of elderly people would rapidly
increase over the next 20 years. The result
of the First World Assembly is typically
referred to as the “Vienna International
Plan of Action on Ageing.
It is sometimes known as the ‘Vienna
Plan’ in honour of its city of origin. It aims
to strengthen the capacities of Govern-
ments and civil society to deal effectively
with the ageing of populations and to ad-
dress the developmental potential and
1. History of the Third World Assembly on Ageing,www.saintpeters.edu/guarini-institute/files/.../Third-World-Assembly-on-
Ageing.
2. www.un.org./development/desa/ageing /Vienna …international
3. VIENNA INTERNATIONAL PLAN OF ACTION ON AGING UNITED NATIONS NEW YORK 1983UN Resolu-
tion no 37/51 of 1982.
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dependency needs of older persons. It
promotes regional and international co-
operation. It includes 62 recommenda-
tions for action addressing research, data
collection and analysis, training and edu-
cation health and nutrition, protection of
elderly consumers, housing and environ-
ment, family, social welfare, income secu-
rity and employment as well.
The Plan is part of an international frame-
work of standards and strategies devel-
oped by the international community in
recent decades. It should, therefore, be
considered in relation to agreed stand-
ards and strategies in the areas of human
rights, advancement of women, families,
population, youth, disabled persons, sus-
tainable development, welfare, health,
housing, income security and employ-
ment, and education. 2
The Plan of Action are proposals for
broad guidelines and general principles
so that the international community, Gov-
ernments, other institutions and society
at large can meet the challenge of the
progressive aging and the needs of the
elderly all over the world. The aging of so-
cieties is neither an unexpected, unfore-
seeable event nor a random result of bio-
logical development. Never the less there
are a number of basic considerations
which reflect general and fundamental
human values, independent of culture, re-
ligion, race or social status. The respect
and care for the elderly reflects a basic
interplay between self-preserving and
society-preserving impulses which has
conditioned the survival and progress of
the human race. 3
 N. J. Comp. Law Vol. 5 (2) 2018 pp. 1-13
The plan of action can be summarized
and may provide guidelines for the con-
sideration of policies and specific actions:
(a) The progressive aging and the con-
tinuing increase of the elderly popula-
tion, is neither unexpected nor unfore-
seeable event. It is the first and most
visible outcome of a socio-economic
development all over the world.
(b) Governments should take measures
necessary to adjust or avoid imbal-
ances between age groups, while pre-
serving the right to life of the elderly.
(c) People will not be relegated to a mar-
ginal and passive role after a certain
age level.
(d) All policies and programmes should
be based on the fact that aging is a
natural phase of an individual's life cy-
cle, career and experience.
(e) The concept of "preparation for retire-
ment" should not be conceived as a
last-minute adaptation but be pro-
posed as a life-long consideration
from adulthood onwards. It should
serve as a reminder that policies on
aging and the elderly are an important
social concern.
(f) The aging of society should be taken as
an opportunity to be utilized-- to meet
their diverse social and cultural needs.
In this sense, the developmental and
the humanitarian aspects of the ques-
tion of aging are closely intertwined.
(g) It is imperative that, when considering
the question of aging, the situation of
the elderly should not be considered
separate from the overall socio-eco-
nomic conditions prevailing in soci-
ety. The elderly should be viewed as
an integral part of the population. The
elderly must be considered an impor-
4. UN, “Political Declaration and Madrid International Plan of Action on Ageing,”.2002, andUnited Nations, Political
Declaration and Madrid International Plan of Action on Ageing, New York, 2003.
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ISSN : 2393 - 9338
tant and necessary element in the de-
velopment process at all levels within
a given society.
(h) Aging is apparent in the working-age
population long before the number
of persons over 60 increases. It is es-
sential to adapt the labour policy as a
whole and technology and economic
organizations to this situation.
(i) Sectoral interventions in such fields as
health and nutrition, housing, income
security, and social, cultural and lei-
sure activities are as necessary for the
elderly as for other population groups.
(j) It is important that policies and pro-
grammes directed at the aging pro-
mote opportunities for self-expression
in a variety of roles challenging to
themselves and contributory to family
and community.
The principal ways in which older peo-
ple find personal satisfaction are through:
continued participation in the family
and kinship system, voluntary services
to the community, continuing growth
through formal and informal learning,
self-expression in arts and crafts, par-
ticipation in community organizations
and organizations of older people, re-
ligious activities, recreation and travel,
part-time work, and participation in the
political process as informed citizens.4
The Vienna Assembly drew the attention
of the world towards ageing. As third dec-
ades of post twentieth century witness
massive industrialisation and migration
of people from villages to industrial urban
areas leaving their elderly parents alone
at home at their own fate. Till 2000 AD,
there was little hearing of old age homes
 N. J. Comp. Law Vol. 5 (2) 2018 pp. 1-13
in India. As the joint family system was
caring the elderly people. But the early
21 st
century, the old age problem, has
awakened the individual, society and the
government. The Vienna plan has high-
lighted the requirements of the old age. It
also draws attention that no one is going
to be spared by the touch of the ‘old age’.
Madrid Plan of Action
Ageing 2002
The Madrid International Plan of Action on
Ageing and the Political Declaration was
adopted at the Second World Assembly
on Ageing in April 2002. It marked a turn-
ing point in the world which addresses
the key challenge of “building a society for
all ages”. The Madrid Plan of Action offers
a bold new agenda for handling the issue
of ageing in the 21st- century. It focuses
on three priority areas: “older persons and
development, advancing health and well-
being into old age, and ensuring enabling
and supportive environments”.
The central themes running of the Inter-
national Plan of Action on Ageing, 2002
include: “The full realization of all human
rights and fundamental freedoms of all
older persons; eradicating poverty in old
age; empowerment of older persons to
full and effective participation in the eco-
nomic, political and social lives of their
societies. Provision of opportunities for in-
dividual development, self-fulfillment and
well-being throughout life especially in
late life”.
The action plan recognizes the social, cul-
tural, economic and political contribution
of older persons. It ensures the full enjoy-
ment of all human rights and fundamen-
tal freedoms by promoting human rights
conventions, combating all forms of dis-
ISSN : 2393 - 9338
crimination. It acknowledges, encourag-
es and supports the contribution of older
persons to families, communities and
the economy. It Provides opportunities,
programmes and support to encourage
older persons to participate or continue
to participate in cultural, economic, politi-
cal, social life and life long learning. It Pro-
vides information and access to facilitate
on
the participation of older persons in mu-
tual self-help, inter-generational commu-
nity groups and opportunities for realizing
their full potential. It creates an enabling
environment for volunteering at all ages,
including through public recognition, and
facilitate the participation of older per-
sons who may have little or no access to
the benefits of engaging in volunteering.
The Madrid plan promotes a wider under-
standing of the cultural, social and eco-
nomic role and continuing contribution of
older persons to society, including that of
unpaid work. The older persons should be
treated fairly and with dignity, regardless of
disability or other status, and should be val-
ued independently of their economic con-
tribution. The action plan takes account of
the needs of older persons and respects
the right to live in dignity at all stages of life,
promotes a favorable attitude among em-
ployers regarding the productive capac-
ity of older workers as being conducive to
their continued employment and promote
awareness of their worth, including their
self-awareness, in the labor market. Pro-
mote civic and cultural participation as
strategies to combat social isolation and
support empowerment.
“The Madrid action plan takes measures
to enable the full and equal participation
of older personsin decision-making at all
levels. It places employment growth at
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 N. J. Comp. Law Vol. 5 (2) 2018 pp. 1-13
the heart of macroeconomic policies to
enable older persons to continue working
as long as they want to work and are able
to do so. This action is to be promoted
through the implementation of policies
such as: increasing older women’s partic-
ipation, sustainable work-related health-
care services with emphasis on preven-
tion, promotion of occupational health
and safety so as to maintain work ability,
access to technology, life-long learning,
continuing education, on-the-job train-
ing, vocational rehabilitation and flexible
retirement arrangements; and efforts to
reintegrate the unemployed and persons
with disabilities into the labour market.
It makes special efforts to raise the par-
ticipation rate of women and disadvan-
taged groups, such as the long-term un-
employed and persons with disabilities,
thereby reducing the risk of their exclu-
sion or dependency in later life. It tries to
promote self-employment initiatives for
older persons, by encouraging the devel-
opment of small and micro-enterprises
without gender discrimination. It aims to
assist older persons already engaged in
informal sector activities by improving
their income, productivity and working
conditions.
“The Madrid action plan promotes new
approach to retirement that takes ac-
count of the needs of the employees as
well as the employers. While maintaining
acquired pension rights, possible meas-
ures to achieve this goal may include re-
ducing the incentives and pressures for
early retirement and removing disincen-
tives to working beyond retirement age. It
promotes a realistic portrait of older work-
ers ‘skills and abilities by correcting dam-
aging stereo types about older workers or
job candidates. Strengthen the capacity
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ISSN : 2393 - 9338
of ageing farmers through continued ac-
cess to financial and infrastructure ser-
vices and training for improved farming
techniques and technologies.”
The Madrid action plan focuses on al-
leviation of marginalization of older per-
sons in the rural area by “(a) Design and
implement programmes and provide
services to sustain the independence of
older persons in rural areas, including
older persons with disabilities; (b) Facili-
tate and strengthen traditional rural and
community support mechanisms; (c) Fo-
cus support on older persons in rural ar-
eas without kin, in particular older wom-
en who face a longer old age, often with
fewer resources; (d) Give priority to the
empowerment of older women in rural
areas through access to financial and in-
frastructure services; (e) Promote innova-
tive rural and community support mecha-
nisms, including those that facilitate the
exchange of knowledge and experience
among older persons.” The action plan
wishes equality of opportunity throughout
life with respect to continuing education,
training and retraining as well as voca-
tional guidance and placement services.
The Madrid action plan has aim to
strengthening of solidarity through equity
and reciprocity between generations by
“(a) Promoting understanding of ageing
through public education as an issue of
concern to the entire society; (b) Consider
reviewing existing policies to ensure that
they foster solidarity between generations
and thus promoting social cohesion; (c)
Develop initiatives aimed at promoting
mutual, productive exchange between
the generations, focusing on older per-
sons as a societal resource; (d) Maximize
opportunities for maintaining and im-
proving intergenerational relations in lo-
 N. J. Comp. Law Vol. 5 (2) 2018 pp. 1-13
cal communities, inter alia, by facilitating
meetings for all age groups and avoiding
generational segregation; (e) Consider
the need to address the specific situation
of the generation of people who have to
care, simultaneously, for their parents,
their own children and their grandchil-
dren; (f) Promote and strengthen solidarity
among generations and mutual support
as a key element for social development;
(g) Initiate research on the advantages
and disadvantages of different living ar-
rangements for older persons, including
familial co-residence and independent
living in different cultures and settings”.
The Madrid action plans aims to reduce
poverty among older persons by “(a) pro-
viding equal access for older persons to
employment and income-generation op-
portunities, credit, markets and assets; (b)
Support innovative programmes to em-
power older persons, particularly wom-
en, to increase their contributions to and
benefit from development efforts to eradi-
cate poverty; (c) Enhance international
cooperation to support national efforts to
eradicate poverty, in keeping with interna-
tionally agreed goals, in order to achieve
sustainable social and economic support
for older persons”. The Madrid plan aims
to promote programs to enable “(a) all
workers to acquire basic social protec-
tion/social security, including where ap-
plicable, pensions, disability insurance
and health benefits ; (b) Strive to ensure
gender equality in social protection/so-
cial security systems; (c) Ensure, where
appropriate, that social protection/social
security systems cover an increasing pro-
portion of the formal and informal working
population; (d) Consider innovative social
protection/social security programmes
for persons working in the informal sec-
tor; (e) Introduce programmes to promote
• 7 •
ISSN : 2393 - 9338
employment of low-skilled older workers,
giving access to social protection/social
security systems.”
The Madrid plan pays attention to all
older persons to “(a) Consider establish-
ing where appropriate, a non-contributory
pension and disability benefit system;
(b) Organize, as a matter of urgency
where they do not exist, social protection/
social security systems to ensure mini-
mum income for older persons with no
other means of support, most of whom
are women, in particular those living
alone and who tend to be more vulner-
able to poverty; (c) Take into account the
living standards of older persons when-
ever pension systems and disability insur-
ance, as appropriate, are being reformed;
(d) Take measures to counteract the ef-
fects of hyperinflation on, as appropriate,
pension, disability insurance and savings
arrangements; (e) Invite international or-
ganizations, in particular the international
financial institutions, according to their
mandates, to assist developing countries
and all countries in need in their efforts
to achieve basic social protection, in par-
ticular for older persons.”
The action plan recommends equal ac-
cess to food, shelter and medical care
and other services during and after
natural disasters and other humanitar-
ian emergencies to older persons. It en-
hances contributions of older persons to
the reestablishment and reconstruction
of communities and the rebuilding of the
social fabric following emergencies. The
action plan aims to “ (a) Include older per-
sons in the provision of community relief
and rehabilitation programmes, includ-
ing by identifying and helping vulnerable
older persons;(b) Recognize the potential
 N. J. Comp. Law Vol. 5 (2) 2018 pp. 1-13
of older persons as leaders in the family
and community for education, commu-
nication and conflict resolution; (c) Assist
older persons to re-establish economic
self-sufficiency through rehabilitation pro-
jects, including income generation, edu-
cational programmes and occupational
activities, taking into account the special
needs of older women; (d) Provide legal
advice and information to older persons
in situations of displacement and dispos-
session of land and other productive and
personal assets; (e) Provide special atten-
tion for older persons in humanitarian aid
programmes and packages offered in sit-
uations of natural disasters and other hu-
manitarian emergencies.”
The plan reduces the cumulative effects
of factors that increase the risk of disease
and consequently potential dependence
in older age. Development of policies to
prevent ill-health among older persons. It
aims to provide access to food and ade-
quate nutrition for all older persons by “(a)
Promoting equal access to clean water
and safe food for older persons; (b) Achieve
food security by ensuring a safe and nutri-
tionally adequate food supply at both the
national and international levels. In this
regard, to ensure that food and medicine
are not used as tools for political pressure;
(c) Promote lifelong healthy and adequate
nutrition from infancy, with particular at-
tention to ensuring that specific nutritional
needs of men and women throughout the
life course are met; (d) Encourage a bal-
anced diet to provide adequate energy
and prevent macro- and micro-nutrient
deficiency, preferably based on local foods
through, inter alia, developing national di-
etary goals; (e) Pay particular attention to
nutritional deficiencies and associated
diseases in the design and implementa-
• 8 •
ISSN : 2393 - 9338
tion of health promotion and prevention
programmes for older persons; (f) Edu-
cate older persons and the general pub-
lic, including informal caregivers, about
specific nutritional needs of older persons,
including adequate intake of water, calo-
ries, protein, vitamins and minerals; (g)
Promote affordable dental services to pre-
vent and treat disorders that can impede
eating and cause malnutrition; (h) Include
specific nutritional needs of older persons
into curricula of training programmes for
all health and relevant care workers and
professionals; (i) Ensure appropriate and
adequate provision of accessible nutri-
tion and food for older persons in hospital
and other care settings. “The action plan
emphasizes involvement of older persons
in the development and strengthening of
primary and long-term care services and
rehabilitation programmes. It encourages
health and social care and maximize their
strengths and abilities within health and
social services.The Madrid plan enhanc-
es the public recognition of the authority,
wisdom, productivity and other important
contributions of older persons.
Governments have the primary responsi-
bility for implementing the broad recom-
mendations of the International Plan of
Action, 2002. A necessary first step in the
successful implementation of the Plan is
to main stream ageing and the concerns
of older persons into national develop-
ment frameworks and poverty eradication
strategies. Programme innovation, mobi-
lization of financial resources and the de-
velopment of necessary human resources
will be undertaken simultaneously. Ac-
cordingly, progress in the implementation
of the Plan should be contingent upon ef-
fective partnership between Governments,
all parts of civil society and the private sec-
 N. J. Comp. Law Vol. 5 (2) 2018 pp. 1-13
tor as well as an enabling environment
based, inter alia, on democracy, the rule
of law, respect for all human rights, funda-
mental freedoms and good governance at
all levels, including national and interna-
tional levels. 5
Macauo Plan of Action
The Macao plan of Action on Ageing for
Asia and the Pacific addresses important
issues relating to ageing and older per-
sons in 2007. It contains concise recom-
mendations with specific guidelines. Indi-
vidual countries will set their own goals
and targets within the framework of the
recommendations and implement them
in accordance with their national circum-
stances. “The Macao Plan of Action is
drawn on the Vienna International Plan of
Action on Ageing, adopted at the World
Assembly on Ageing in 1982, the Procla-
mation on Ageing as annexed to General
Assembly resolution 47/5 of 16 October
1992, the United Nations Principles for
Older Persons and other relevant United
Nations mandates relating to ageing and
older persons. It is also supportive of the
relevant goals and targets contained in
the Programme of Action adopted at the
International Conference on Population
and Development, held in Cairo in 1994,
the Copenhagen Programme of Action
adopted at the World Summit for Social
Development in 1995 and of the Agenda
for Action on Social Development in the
ESCAP Region as revised by the Fifth
Asian and Pacific Ministerial Conference
on Social Development in 1997.”
The Hunger, poverty, ill health, social ex-
5. ibid, UNISDR, “Sendai Framework,” The Political Declaration and Madrid International Plan of Action on Ageing
agreed upon at the Second World Assembly on Ageing stresses that the experiences and resources of older persons
can be “an asset in the growth of mature, fully integrated, humane societies,” and that, in addition to their role as
leaders in the family and community, they can contribute positively to coping with emergencies and to promoting
rehabilitation and reconstruction.
• 9 •
ISSN : 2393 - 9338
clusion, unemployment, and limited ac-
cess to education and basic amenities
are critical national areas of concern re-
quiring corrective action and competing
for scarce resources. The governments
appreciate the need to view the issues re-
lating to ageing and older persons within
this broader developmental context of pri-
orities, needs and resource allocation. The
governments recognize that the twentieth
century has heralded the beginning of a
demographic transformation in the Asian
and Pacific region. The combined effects
of improved longevity and declining fertil-
ity lead to a maturing of the age structure,
with a high concentration of the popula-
tion in the middle or older ages. The in-
crease in the presence of older persons
will be felt in all aspects of social life.
At the community and individual levels,
the humanitarian needs of older persons
require special attention. Societies have
to promote and safe guard the rights and
well-being of older persons. This includes
the prevention of age discrimination and
the promotion of productive ageing. The
aspirations, knowledge and energy of
older persons need to be effectively chan-
neled in the process of national economic
and social development. The service in-
frastructure needs to be broadened and
strengthened to meet the social, emo-
tional, health, financial and developmen-
tal needs of this growing population. The
present Plan of Action addresses seven
areas of concern relating to ageing and
older persons in the Asian and Pacific re-
gion: “(a) the social position of older per-
sons; (b) older persons and the family; (c)
 N. J. Comp. Law Vol. 5 (2) 2018 pp. 1-13
health and nutrition; (d) housing, trans-
portation and the built environment;
(e) older persons and the market; (f) in-
come security, maintenance and employ-
ment; and (g) social service.
It is an important phenomenon with long-
term concerns, posing no immediate diffi-
culties but increasing pressure on the so-
cio-economic development of the nation.
For most countries, the structural changes
in the age composition of the population
have thus far been slow and the number
of older persons manageable. 6
HUMAN RIGHTS OF AGE-
INGPERSONS/ (OEWG)2017
According to the UN, there are more than
900 million people aged sixty and over liv-
ing in the world today, and this number
is expected to reach 1.4 billion by 2030.
Many governments, particularly those of
developed countries, are struggling
the sudden changes in social structure
brought about by rapidly declining birth
rates and aging demographics.
This was one of the issues discussed at
the eighth session of the Open-ended.
Working Group on Ageing held at the UN
in July 2017. It was pointed out that the
enjoyment of all human rights diminishes
with age, in spite of the declaration in the
UDHR, 1948 that all human beings are
born free and equal in dignity and rights.
This is due to negative images of the el-
derly as less productive, less valuable to
society, a burden to the economy and to
younger generations. Participants agreed
that such structural discrimination and
6. Macao convention on senior citizen Asia-pacific 2007
7. STANDING COMMITTEE ON SOCIAL JUSTICE AND EMPOWERMENT (2007-2008) (FOURTEENTH LOK
SABHA) MINISTRY OF SOCIAL JUSTICE AND EMPOWERMENT THE MAINTENANCE AND WELFARE
OF PARENTS AND SENIOR CITIZENS BILL, 2007.
• 10 •
ISSN : 2393 - 9338
prejudice can lead to the social exclusion
of older persons and must be combated.
The need to protect the rights of older per-
sons was addressed in a draft resolution
submitted to the UN General Assembly
and that discourse resulted in the adop-
tion of five UN Principles for Older Per-
sons in 1991, comprising independence,
participation, care, self-fulfilment and dig-
nity. While independence (respecting the
will of the individual), care (safeguarding
health and daily living) and dignity (en-
suring protection from discrimination and
abuse) are of course core rights of the
aged. It is crucial to remember that on
their own they are only a starting point. But
even more important is being looked to by
others as an irreplaceable source of spir-
itual support. It is this that brings our dig-
nity to an even brighter lustre. The signifi-
cance of such bonds remains unchanged
even by grave illness or dependence on
others for nursing care. Being surround-
to ed by people who derive joy and happi-
ness from your presence is itself a source
of dignity. As emphasized at the Second
World Assembly on Ageing (2002) and
later by the Open-ended Working Group
on Ageing (2017), protecting the human
rights of older persons is integral to the
creation of a culture of human rights that
respects people of all ages and will not
brook any form of discrimination.7
MAINTENANCE AND WEL-
FARE OF SENIOER CITI-
ZEN ACT 2007
The Maintenance and Welfare of Parents
and Senior Citizens is a Indian legislation
enacted in 2007. The objective of the Act
is to provide more effective provisions for
 N. J. Comp. Law Vol. 5 (2) 2018 pp. 1-13 ISSN : 2393 - 9338

the maintenance and welfare of Parents
and Senior Citizens guaranteed and rec-
ognized under the Constitution. The most
important provision of the Act is to make
the maintenance of parents by their fam-
ily as a legal right. It provides (a) appro-
priate mechanism to be set up to provide
need-based maintenance to the parents
and senior citizens (b) providing better
medical facilities to senior citizens (c) for
institutionalization of a suitable mecha-
nism for `protection of life and property
of older persons (d) setting up of old age
homes in every district . 8
until payment made whichever is earlier.
If a senior citizen after the commence-
ment of this Act, has transferred his prop-
erty either moveable or immovable, by
way of gift or otherwise, subject to the
condition that the transferee shall provide
him basic amenities and physical needs
and thereafter such transferee reuses or
fails to provide such promise, such trans-
fer of property shall be deemed to have
been made by fraud, coercion or undue
influence and the Tribunal can declare
such transfer as void.

Abandoning a senior citizen in any place by

Senior citizen including parent who is un-
able to maintain himself from his own re-
sources is entitled to get relief under this
Act. Children/grandchildren, relatives are
under obligation to maintain his or her
parent either father, mother or both, oth-
erwise the senior citizen can seek the as-
sistance of Tribunal constituted under this
Act. Such application for maintenance
can be filed by the senior citizen or a par-
ent himself, or any registered organisation
authorised by him. The Tribunal can also
suo motu take cognizance of the case.
a person who is having the care or protec-
tion of such senior citizen is a criminal of-
fence and such person shall be punishable
with imprisonment for a term which may
extend to three months or fine which may
extend to five thousand rupees or both.
The Act also provides that state govern-
ments shall establish old age homes at
least one in one district to accommodate
indigent senior citizens. State govern-
ments may also ensure proper medical
care for senior citizens. 9

The Tribunal is having power to allow in-

terim maintenance pending disposal of
the case. If such children/relative who are
directed to pay maintenance fail to com-
ply with the order of tribunal without suf-
ficient cause, the Tribunal may issue war-
rant for levying the due amount from them
in the manner levying fines and can also
sentence the erring respondent to impris-
onment that may extend to one month or
CONCLUDING REMARK
Senior citizens are persons of sixty years
or more. Anyone who is born will come
across this phase of life. Since the advent
of democracy in the world, the improved
socio-economic condition and health care
caused the increase in longevity. Thus the
survival rate of children and minimization
of death rate has awarded longer span of

8. The maintenance and welfare of parents and senior citizen Act 2007. (Indian legislation)
9. The Rights of the older persons: collections of International Documents Editors: Israel Doron Kate Mewhinney T;
www.eshelnet.org.it
Dirk Jarré, President of EURAG, and Ageing in emerging market: How ageing has found its place on European policy agendas
Building a people’s movement towards an era of Human Rights: Ikeda and Weizsäcker, Knowing Our Worth, 131–34.
Soka Gakkai in Japan launched the exhibition “Hope and the Culture of Peace,” which seeks to counteract negative images of
aging by presenting the stories of older persons who are actively contributing to the welfare of young people and of society as
a whole. The exhibition calls for the creation of a culture of peace and of human societies that treasure the rich experience and
wisdom of the elderly.

• 11 •
 N. J. Comp. Law Vol. 5 (2) 2018 pp. 1-13
life all over the world. India is not an ex-
ception to it. The average life expectancy
has grown to 70 years but the poor health
care and neglect from children has been
cause of greater concern.
The plight of senior citizens has become
pitiable due to disintegration of joint family
system and urbanization. The intolerance
and selfishness among the children have
grown rapidly. The tendency of living self-
centered and non-interference in the nu-
clear family has aggravated the problem.
The son is son till he is not married. Thus
the emotional detachment from parents
is the root of all evils in the old age. Here
lies the question as to who is responsible
for? The senior citizen of today was the
parents of their children. Whether they
could train their offsprings the duties and
responsibilities towards parents? Wheth-
er the senior citizen of today did care their
older parents devotionally? Whether any
course curriculum does provide any train-
ing to the new generation for their duties
towards senior citizen? The answer to all
such question are found in negative. The
result is increasing number of ‘old age
homes’. The parents have no place to live
in even at the residence of their own kith
and kin.The saga of sorrow has been viv-
idly displayed on the silver screen in ‘BAG-
VAN’. How to manage old age and the re-
lated problems, like physical care due to
feeble muscle and eye sight, economic
dependency due to unemployment, day
to day care due to weak health, medicine
due to old age disease, accommodation
due to lack of shelter in the children/rela-
tives house.
The Madrid assembly 2002, is a compre-
hensive recommendation on the prob-
lems of senior citizen/old age persons
• 12 •
ISSN : 2393 - 9338
worldwide. The old is gold is an old ad-
age. The old age should be seen as an
asset not as liability. The old age is the ex-
perience of the human life which requires
to be collected, compiled and dissemi-
nated. The old persons can be engaged
in employment of policy decision, inten-
sive care and protection of children. They
can be engaged in the NGOs for training
the younger generations.
Today politics has become a profession.
Earlier it was a social service for the cause
of humanity. The age of contesting election
was fixed 25 years at the time of independ-
ence because at that time the life expec-
tancy was 32 years. But today its average
has increased up to around 70 years. Why
not there should be constitutional amend-
ment for the increase in the election con-
testing age by two and half times, i.e. 55
years, just five years before sixty, the aver-
age age of retirement. At this age, one has
experience of around thirty years of work
experience in their respective field. One
is master in one’s own field. They can be
the best persons to resolve the problems
of society and the senior citizens will be
confident and their kith and kin shall care
voluntarily.
Of course all can not be politician by tem-
perament but can be the business man,
manager, skilled man, social thinker, writ-
ers, teachers, social activists etc. It is also a
fact that people have no knowledge of life
planning nor of career planning. It is not
a part of curriculum. People learn it out of
trial and error in their own life. Thus no one
feels that he/she will face the problems of
old age any day. Thus the senior citizens
services can be hired to train the younger
generation, life planning, retirement plan-
ning, financial planning, marriage plan-
 N. J. Comp. Law Vol. 5 (2) 2018 pp. 1-13
ning etc. These can be taught as extra-
curricular activities but essential for life.
The Maintenance and welfare of senior
citizen Act 2007, has been legislated in
India to provide maintenance to senior cit-
izen as a statutory rights and tribunal has
been constituted for availing the rights. It
has mandate to construct old age homes
to provide shelter to them. But there is no
provision nor any mechanism for the uti-
lization of the old age for social benefits.
Thus neither the Madrid nor the Macao
recommendations have been incorporat-
ed in the legislation. The national agenda
requires to be set up keeping old age in
mind. The entire set up will focus human
welfare. In this way the childhood issues
and youth education will be old age rel-
evant. Because the youth of today are the
senior citizen of tomorrow. The ‘personal
development centric’ planning can be
converted into ‘socio-human’ objectives
of human beings. The role of education
is obvious in this direction, both formal as
well as informal. Here in the senior citi-
zens can be the great resource to train
the junior generations.
ööööööö
• 13 •
ISSN : 2393 - 9338
Presently even the kith and kin find the
seniors as liability. There a son of apathy
lies in themselves. But they are not a sub-
ject of allegation or curse rather immedi-
ate action is the urgent need of the hour.
The survey of the old persons can be done
and the dependent parents /senior citi-
zens can be provided immediate welfare
relief which the legislation tries to provide.
The legislative treatment can be provided
immediately. It cannot be left on the sen-
ior citizen to avail themselves. Secondly,
the seniors who are physically fit, they can
be engaged in voluntary social service.
The NGO services can be reserved for the
senior citizens only. Their services can be
availed for the eradication of social evils,
and one among the hundreds, is the disre-
spect towards the parents and senior citi-
zens. No doubt they are also the party to
such evil, and the remedies are available
there in also. The legislative support and
social awakening can change the scenar-
io that our parents and seniors are golden
treasures. Their abode in old age is not the
‘old age home ‘rather our heart, the ‘cradle
of his home’ with sons/daughters, grand-
children and great grandchildren.
 N. J. Comp. Law Vol. 5 (2) 2018 pp. 14-29 ISSN : 2393 - 9338

THE SURROGACY IN
INDIA ISSUES & PERSPECTIVES
Avimanyu Behera

Principal, Midnapore Law College, Vidyasagar University

& Member Court & E.C., Vidyasagar University, W.B.

Email : avimanyubehera@gmail.com

ABSTRACT
“............. Unfortunately the law is slow to react to the rapid advance of science and
changing human behaviour....”
1
— In Re Baty M

Surrogacy is when a woman carries a baby for another couple and gives up the baby
at birth. Surrogate mother would have to respect her contractual obligations in relation
to the foetus and child.

Yet the law would need to address health issues on relation to both child and mother.
The phenomenon of surrogacy indicates sovereignty of woman over her body and
community would have to respect the new freedom of woman. In recent years India
has acquired to the status of ‘Surrogacy Capital’ with media headlines using growing
such as ‘baby factory’, ‘out sourcing of wombs’ and ‘Womb for rent’. With grousing cas-
es of infertility in the west and the advances made in fertility treatments such as In Vitro
Fertilisation (IVF). India is a popular destination for those turning to surrogacy to fulfil
their dream of having a child. One report claims that a leading Mumbai obstetrician
delivers a surrogate baby every 48 hours. Surrogacy in India is estimated to be a $445
million a year industry and looks set to grow even more. In India surrogacy is highly un-
regulated and hardly ever monitored, and to protect the rights of children born through
surrogacy. In India the legislative attempts never contract any confidence. Therefore,
the paper calls for strong policy consideration either for allowing it or for rejecting it.

Key Words: Surrogacy, Industry, Ill Effects, Legal Frame Work, International Scenario,
Legitimacy of The Child and Judicial Prouncements.

PAGE : 17 REFERENCES : 43

I NTRO DU C TION in the family are manifold. In a patriarchal

The nature has honoured the woman
with the wonderful capacity to bear and
nurture a life within her. Every woman
cherishes the experience of motherhood.
The societal impacts of arrival of a child
1. 217 NJ Super 313, 333 (1987).
Hindu Society, a woman is respected
only if she is mother of a child, so that the
lineage continues and opens the door of
heaven to the predecessors. As the arriv-
al of a progeny brings a lot in the family

• 14 •
 N. J. Comp. Law Vol. 5 (2) 2018 pp. 14-29
cohesion and wellbeing of the couple, it
has great a socio-psychological value. It
is said that the parents construct the child
biologically, while the child constructs the
parents socially. Thus, procreation is per-
haps the greatest advancement of intrin-
sic worth of a person.
In the Mahabharat Gandhari wife of king
Dhritarashtra conceived but pregnancy
went on for nearly 10 years’ after which
she delivered a mass (mole), Bhagwan
Vyasa found that there were 101 cells
were put in a nutrient medium and were
grown in vitro till full terms. Of those 100
developed into male children (Duryod-
han, Dushasan and other Kauravas) and
one as a female child called (Dusheela).
There are other well-quoted examples
that refer to not only IVF but also to the
idea that a male can produce a child
without the help of female. Sage Gautam
produced two children from his own se-
men – a son Kripa and a daughter Kripi;
who were both test tube babies. Likewise
Sage Bhardwaj produced Drona, later to
the teacher of Pandavas and Kauravas.
The story relating to the birth of Dhrishta-
dyumna and Draupadi is even more in-
teresting and reflects the supernatural
powers of great Rishi. King Draupada had
enmity with Droncharya and desired to
have a son strong enough to kill Drona.
He was given medicine by Rushi and af-
ter collecting his semen, processed it and
suggested that AIH (artificial insemination
by husband) should be done for his wife
who however refused. The Rushi then put
the semen in a Yajna Kunda from which
Dhristadyumna and Draupadi were born.
While the above are quoted as examples
of IVF and parthenogenesis, there is an-
other story, which refers embryo transfer.
2. Assistend Reproductive Techniques — Surragacy and Adoption by J. Malhotra & N. Malhotra & S. Chaturvedi
• 15 •
ISSN : 2393 - 9338
This was regarding the seventh pregnan-
cy of Devaki, by the will of the Lord, the
embryo was transferred to the wombs of
Rohini, the first wife of Vasudeva to pre-
vent the baby being killed by Kansa2.
The word ‘Surrogate’ has its origin in Latin
‘Surroatas’ past participate of ‘Surrogare’
meaning a substitute, that is a person ap-
pointed to act in place of another. This
surrogate mother is a woman who bears
a child on behalf of another woman either
from her own eggs or from the implanta-
tion in her womb of fertilized egg from an-
other woman.
According to Black Law Dictionary, Surro-
gacy means “the process of carrying and
delivering a child for another person.”
The new Encyclopedia Britanica defines-
‘Surrogate motherhood’ as the practice
in which a woman bears a child for the
couple unable to produce children in the
usual way.
In Medical parlance - the term surrogacy
means using of a substitute mother in
place of natural mother.
Surrogacy Categorises into
three types--
TRADITIONAL SURROGA-
CY: (also known as straight method)
A pregnancy in which a woman provides
her own egg, which is fertilized by artificial
insemination, and carries the fetus and
gives birth to a child for another person.
GESTATIONAL SURRO-
GACY : (also known as Host method)
It is a pregnancy in which one woman
called the genetic mother provides the
egg, which is fertilized and another wom-
an (the surrogate mother) carries the
fetus and gives birth to child. That is an
 N. J. Comp. Law Vol. 5 (2) 2018 pp. 14-29
embryo created by process of IVF (in vitro
fertilization) is implanted into the surro-
gate mother.
DONOR SURROGACY :
In donor surrogacy there is no genetic re-
lationship between the child and the in-
tended parents as the surrogate is insem-
inated with the sperm, not of the intended
father but of an outside donor.
Surrogacy can also divided on
the basis of arrangements :
(A) ALTRUISTIC SURRO-
GACY :
It is a situation in where the surrogate re-
ceives no financial reward for her preg-
nancy or the relenguishment of the child
although usually all expenses related to
pregnancy and birth are paid by the in-
tended parents such as medical expens-
es maternity, clothing & other related ex-
penses.
(B) COMMERCIAL SURRO-
GACY :
It is a form of surrogacy in which gesta-
tional carrier (surrogate mother) is paid to
carry a child to maturity in her womb and
is usually reported to by well of infertile
couples who can afford the cost involved
or people who save and borrow in order
to complete their dreams of being parents.
To understand surrogacy in the Indian
Context, one must begin with the fact
that, while the Transplantation of Human
Organs Act, 1994 banned the sale of hu-
man organs, organ loaning an equally dif-
ficult and risky venture is being promot-
ed through paid surgery. This is due to a
medical industry that welcomes profitable
international ventures like “reproduction
tourism”, even when infertility constitutes a
3. The Business & Ethics of Surrogacy, Available at <http://www.jstor.org/stuble.
• 16 •
ISSN : 2393 - 9338
small segment of domestic priorties.3
Surrogacy affords many infertile, often
desperate, couples the possibility of hav-
ing a child. For many couples in the West,
the procedure is forbiddingly expensive,
affordable only to professionals like doc-
tors and lawyers, Moreover in most other
countries legal issues and red tape de-
ter couples from availing of surrogacy.
Commercial surrogacy can be seen as
having benefits for both parties. For the
surrogates choosing to carry a child for
contracting couples is an opportunity for
financial empowerment, enabling them
to secure a “better life for themselves and
their families. Other point to an altruistic
dimension, in a country where child birth
is almost sacred. Indian surrogates may
feel happy infertile couples. Where there
are always health risks involved in fertility
treatment. Pregnancy and child birth, In-
dia has highly trained doctors and sound
medical facilities that provide good health
care for both the surrogate and the baby.
Surrogacy without any doubt is the best,
the most reliable and alternative means of
reproduction, Needless to say it is of great
help to those, who cannot conceive peo-
ple these days easily find Egg donors with
some like IVF Clinic India working for the
cause. The result Fertility Clinic India is in-
deed a great blessing for many childless
couples. Surrogacy in India means that a
childless couple can attain parenthood al-
beit in a artificial way however what needs
to understand is gay surrogacy. Indian of-
fers couples to realize the dream of attain-
ing parenthood at a cost that is quite af-
fordable. So far many couples surrogacy
means visiting countries that not only ful-
fil their dream but also saving big visiting
 N. J. Comp. Law Vol. 5 (2) 2018 pp. 14-29
countries that offer affordable means to
realize the dream. So now many childless
couples it is easy to attain parenthood un-
like in the earlier days when this technol-
ogy not available the present day genera-
tion fast embrancing changes.
Even though homosexually is an “Unnatu-
ral offence u/s 377 of Indian Penal Code as
Indian Law Criminalizes, homosexuality,
there is no bar to gay couples hiring a sur-
rogate mother to deliver children for gay
couples in India. Thus there are reports
in the media that there are numerous gay
couples coming to India to look for surro-
gate mothers as India does not disallow
such surrogacy arrangements.
India has emerged as an international
centre of “Surrogacy industry”. Thousand
of infertile couples from India and abroad
are flocking to the Assisted Reproductive
Technology (ART) Clinics to have a child
of their own.4 Surrogacy raises complex
ethical, moral & legal questions. Surro-
gacy must be legal in India for it to have
developed into an industry. What does it
mean and how has it come to be? It is cur-
rently estimated to be a $2-billion industry.
Before November 2015, when the govern-
ment imposed a ban, foreigners account-
ed for 80 percent of surrogacy births in the
country. This is because most countries,
barring a few such as Russia, Ukraine &
some US States do not permit commercial
surrogacy. Many Countries in Europe have
completely prohibited surrogacy arrange-
ments, both to protect the reproductive
health of the surrogate mother as well as
the future of the newborn child.
A Japanese doctor coupled
4. Naturally Vajust, Economic And Political Weekly, Vol 1, No. 44.
5. 228th Report of Law Commission of India (2008)
ISSN : 2393 - 9338
sioned a baby in a small town in Gujarat in
2008. The surrogate mother gave birth to
healthy baby girl. By thus the coupled had
separated and the baby was both parent-
less & stateless, caught between the legal
systems of two countries. The child is now
in her grandmother’s custody in Japan but
has not obtained citizenship, as surrogacy
is not legal in Japan.
In 2012 an Australian couple who had
twins by surrogacy, arbitrarily rejected one
and took home the other. A single mother
of two from Chennai decided to become a
surrogate mother in the hope that the pay-
ment would help her start a shop near her
house. She delivered a healthy child. But
her hopes bore little fruit for herself. She re-
ceived only about Rs. 75,000/- with an au-
torickshow driver who served as a middle-
man, taking 50 percent cut. After repaying
the loans, she did not have enough mon-
ey. On January 29, 2014, 26 year old Yuma
Sherpa died in after a month of surgical
procedure to harvest eggs from her body,
as part of the egg donation in programme
of a private clinic based in New Delhi.
These incidents highlight the total disre-
gard for the rights of the surrogate mother
& child have resulted in a number of public
interest litigation in the Supreme Court of
Control Commercial Surrogacy. The 228th
report of the Law Commission of India5
also recommended prohibiting commer-
cial surrogacy and allowing ethical altru-
istic surrogacy to needy Indian citizens
by enacting a suitable legislation. For the
above to enact a legislation to regulate
surrogacy services in the country, to pro-
commis- hibit the potential exploitation of surrogate
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 N. J. Comp. Law Vol. 5 (2) 2018 pp. 14-29 ISSN : 2393 - 9338

mothers and to protect the rights of chil- in any form or run a racket or an organ-
dren born through surrogacy. ised group to empanel or select surrogate

THE SURROGACY (REGU- mothers or use individual brokers or inter-

LATION) BILL, 2016 WAS mediaries to arrange for surrogate moth-

ers and for surrogacy procedures at such
APPROVED BY THE UN-
clinics, laboratories or at any other place.
ION CABINET :
Regulation of Surrogacy and
The surrogacy (Regulation) Bill, 2016 pro-
Surrogacy Procedures8 :
pose to regulate surrogacy in India by per-
Indian infertile couples between the age of
mitting it as an option for couples who can
(23-50) years (woman) and (26-55) (man)
not naturally have children, have a lack of
who have been married for five years
other assisted reproductive technology
& who do not have a surviving child will
options, are keen to have a biological child
be eligible for surrogacy. The Surrogacy
and can find a surrogate mother among
(Regulation) Bill, 2016 allows married In-
their relatives. Altruistic surrogacy6, which
dian Couples with “proven infertility” to try
means an arrangement without transfer
the surrogacy route. This will, by omission,
of funds as inducement, is currently prac-
keep out any homosexual couples as the
tised in some centres in India, though the
law does not cover them, as well as live-in
majority of surrogacy centres use women
partner and single men and women who
who are paid for their services.
might want a surrogate child. The surro-
gate mother should be a close relative of
The Surrogacy (Regulation) Bill 2016 has
the intending couple & between the ages
several checks on who is an eligible can-
of 25-35 years & shall act as a surrogate
didate for surrogacy, and also has restric-
mother only in her lifetime.
tions on who can be a surrogate mother.
The government has defined a couple in Payment to surrogate mother9:
“need” for a surrogate child.
If you are a heterosexual married couple
Ban on Commercial Surrogacy7: who have proven infertility, and you find
The Govt. of India has proposed to amend someone who agrees to be a surrogate
the surrogacy laws in India because of in- mother, you cannot pay her. You can pay
crease in commercial surrogacy in India. for any & all of her medical bills, but that’s
No person, organisation surrogacy clinic, all. If you’re heterosexual couples who have
laboratory or clinical establishment of any proven infertility, and you have found some-
kind shall undertake commercial surro- one who agrees to be a surrogate mother
gacy, provide commercial surrogacy or its without payment, you have to make sure
related component procedures or services that person is a “close relative”.
6. Section 2 (b), The surrogacy (Regulation) Bill, 2016; “Altruistic surrogacy” means the surrogacy in which no charges,
expenses, fees remuneration or monetary incentive of whatever nature, except the medical expenses incurred on sur-
rogate mother and the insurance coverage for the surrogate mother, are given to the surrogate mother or her dependants
on her representative;
7. Sec 2(f) The surrogacy (Regulation) Bill, 2016; “Commercial surrogacy” means commercialization of surrogacy
services or procedures or its component services or components procedures indulding selling or buying of human
embrayo or trading in the sale or purchase of human gametes or selling or buying or trading the services or surrogate
motherhood by way of giving payment, reward, benefit, fees, remuneration or monetary incentive in cash or kind,
to the surrogate mother or her dependants or her representative, except medical expenses incurred on the surrogate
mother and the insurance coverage for the surrogate mother;
8. Section 4 (iii) (b) (i), The Surrogacy (Regulation) Bill, 2016.
9. Section 4 (iii) (b) (iii), The Surrogacy (Regulation) Bill, 2016.

• 18 •
 N. J. Comp. Law Vol. 5 (2) 2018 pp. 14-29
Surrogacy will be allowed only once
If you have a child on the past or you already
have a surrogate child, you cannot ap-
proach a surrogate mother a second time10.
Foreigner Nationals Can’t get
Indian Surrogate Mothers11
The bill effectively bans foreigners to seek
an Indian surrogate mother. This includes
Non-Resident Indians (NRI’S).
Prohibition of Conducting Sur-
rogacy12
No person including a relative or husband
of a surrogate mother or intending couple
shall seek or encourage conducting any
surrogacy or surrogacy procedures on
her except for the purpose specified in the
bill13. Any establishment found undertak-
ing Commercial Surrogacy, exploiting the
surrogate mother, selling or importing a
human embryo shall be punishable with
imprisonment for a terms not be less than
10 years & with find upto Rs. 10 laskh
14
Prohibition to abortion15 and
abandon16 child born through
surrogacy
The intending couple shall not abandon
the child, born out of a surrogacy proce-
dure, whether within India or outside, for
any reason whatsoever, including but
not restricted to, any genetic defect, birth
defect, any other medical condition, the
defects developing subsequently sex of
the child or conception of more than one
baby and the like. No person, organisa-
tion, surrogacy clinic, laboratory or clinical
establishment of any kind shall force the
surrogate mother to abort at any stage of
10. Section8, The Surrogacy (Regulation) Bill, 2016
11. Section4, (iii) (c) (ii). The Surrogacy (Regulations) Bill. 2016
12. Section 5. The surrogacy (Regulation) Bill, 2016
13. Section 4. (ii) The surrogacy (Regulation) Bill, 2016.
14. Section 5. The surrogacy (Regulation) Bill, 2016.
15. Sec. 9; The Surrogacy (Regulation) Bill, 2016.
16. Sec. 10; The Surrogacy (Regulation) Bill, 2016.
17. Section 7, The Surrogacy (Regulation) Bill, 2016
18. Section 6 (ii), The Surrogacy (Regulation) Bill, 2016.
19. Section 3, The Surrogacy (Regulation Bill, 2016.
• 19 •
ISSN : 2393 - 9338
surrogacy except in such conditions as
may be prescribed.
The Child born through surro-
gacy will have all the rights of
biological child17
Any child born out of Surrogacy proce-
dure shall be deemed to be a biological
child of the intending couple and the said
child shall be entitled to all the rights &
privileges available to a natural child un-
der any law for the time being in force.
Written informed consent of
surrogate mother18
No person shall seek or conduct surro-
gacy procedures unless he has explained
all known side effects and after effects of
such procedures to the surrogate mother
concerned; obtained in the prescribed
form, the written informed consent of the
surrogate mother to undergo such proce-
.
dures in the language she understands.
Prohibition and Surrogacy
Clinics19
No surrogacy clinic, unless registered
under this Act, shall conduct or associate
with or help in any manner, in conducting
activities relating to surrogacy & surroga-
cy procedures. No paediatrician, gynae-
cologist, human embryologist, registered
medical practitioner or any person shall
conduct, offer, undertake, promote or as-
sociate with or avail of commercial sur-
rogacy in any form. No surrogacy clinic
shall employ or cause to be employed or
take services of any person. Whether on
 N. J. Comp. Law Vol. 5 (2) 2018 pp. 14-29
honorary basis or on payment who does
not possesses such qualifications as
may be prescribed. No registered medi-
cal practitioner, gynaecologist, paediatri-
cian human embryologist or any other
person shall conduct or cause to be con-
ducted or aid in conducting by himself
or through any other person surrogacy
or surrogacy procedures at a place other
than a place registered under this Act.
No Surrogacy clinic, registered medical
practitioner, gynaecologist, paediatri-
cian, human embryologist or any other
person shall conduct or cause to be con-
ducted or aid in conducting by himself
or through any other person surrogacy
or surrogacy procedures at a place other
than a place registered under this Act.
No surrogacy clinic, registered medical
practitioner, gynaecologist, paediatri-
cian, human embryologist or any other
person shall promote, publish, canvas,
propagate or advertise or cause to be
promoted, published, canvassed, propa-
gated or advertised. Any registered med-
ical practitioner, gynaecologists, pae-
diatrician, human embryologists or any
persons who owns a surrogacy clinic
or employed with such a clinic or cen-
tre or laboratory and renders his profes-
sional or technical services at such clinic
or centre or laboratory, whether on an
honorary basis or otherwise, and who
contravenes any of the provisions of this
Act (other than the provisions referred to
the section 35), rules & regulations made
there under shall be punishable with im-
prisonment for a term which shall not be
less than five years and with fine which
may extend to ten lakh rupees 20
. A new activity may not have been con-
20. Section 36 (i) The Surrogacy (Regulation) Bill, 2016.
21. Section 14 (i) The Surrogacy (Regulation) Bill, 2016
22. Section 47 (i) The Surrogacy (Regulation) Bill, 2016
23. Section 38, The Surrogacy (Regulation) Bill, 2016
24. Pathak, Akluileshwar & Pandey, Vikash Pandey, Sociology of Law in India : Post Scripts & Prospects, Economic and
Political Weekly, Vol. XXX No. 31 & 32 (August 5-12) 1995.
• 20 •
ISSN : 2393 - 9338
Surrogacy regulatory bodies
Implementation will be through the Na-
tional & State Surrogacy Boards21. The
government has proposed that it will es-
tablish a National Surrogacy Board at the
Central level chaired by the health Min-
ister & State Surrogacy Boards & appro-
priate authorities in the States and Union
Territories. They will overlook all cases
of surrogacy and regulate hospitals of
clinics that offer this in India. Registered
surrogacy clinics will have to maintain
all records for a minimum period of 25
years.22 whoever contravenes any of the
provisions of this Act, rules or regulations
made there under for which no penalty
has been elsewhere provided in this Act,
shall be punishable with imprisonment
for a term which shall not be less than
three years & with fine which may extend
to five lakh rupees and in the case of con-
tinuing contravention with an additional
fine which may extend to ten thousand
rupees for every day during which such
contravention continues after conviction
for the first such contravention 23
.
Judicial Pronouncements and
Surrogacy in India :
The court found surrogacy on its own
“no offense to our present laws.” A law is
made in a given context, with certain hori-
zons. As new activities emerge, these are
judged by the law made in an earlier con-
text. In this sense, all activities are judged
by a law made with another context in
view. Law is forever, brought on the text
and the context 24
.
 N. J. Comp. Law Vol. 5 (2) 2018 pp. 14-29
templated by the legislature. What is im-
portant, however, is the text of the law. At
other times, an act may be uncontemplat-
ed and also beyond the text of the law.
Such acts are legal because these are
not illegal within the text of the law. The
legislative then may take note of the gap
and legalise it.
The Indian Surrogacy Journey have actually
began in 2002, when the Supreme Court,
the apex Court of the Country, acknowl-
edged commercial surrogacy in India as a
legal, even though Indian’s first surrogate
baby was delivered on June 23 , 1994 . rd
Subsequently, by virtue of Baby Man-
ji Yamada Vs. Union of India
case Baby Manji was born to a surrogate
mother through in vitro fertilization using a
Japanese man’s sperm and an egg from
an unknown, donor at Anand. In less than
a month, Baby Manji has already seen
fierce legal battles in two Constitutional
Courts, Rajasthan High Court & Supreme
Court, where an NGO has raised ques-
tions on legal propriety of surrogacy and
the child’s nationality. Anxious for the out-
come are her Japanese father and grand-
mother. Therefore the writ of Habeas cor-
pus has been filed claiming that money
making racket is perpetuated in the name
of the surrogacy. Therefore Apex Court
held that commercial surrogacy is per-
mitted in India & consequently that has
increased the international confidence in
going in for surrogacy in India.
In the Case of Jan Balaz Vs. Union of In-
dia,27 the Gujarat High Court has come
25. Smith, Indian surrogacy journey available at http://www.surrogacyclinics.com/tag/commercial-surrogacy-india (2011).
26. Baby Manji Yamada Vs. Union of India JT. (2008) 11 SCC 150.
27. Jan Balaz Vs. Union of Indian AIR (2010) Guj’ 21.
28. WP (C) No. 20680 of 2014.
29. http://www.yaleedu/ynhto/curriculm/units.
ISSN : 2393 - 9338
to a decision that the child born in India
to a surrogate mother, an Indian national
whose biological father is a foreign na-
tional, would get citizenship in India by
birth. Emotional and legal relationship of
the surrogate child with biological par-
ents, moral and ethical issues is vital
importance. The crux of this case is that
the Gujarat High Court conferred Indian
citizenship on two twin batries fathered
through compensated surrogacy by a
German national in Anand district.
The Division bench of the High Courts
25
Comprising Justice K. S. Radhakrishnan
and A. S. Dave, in this landmark judge-
ment observed that a comprehensive
26
in this legislations defining the rights of the child
born out of surrogacy agreement, rights
and responsibilities of a surrogate mother,
egg donor, commissioning parties, legal
validity of the agreement, the parent child
relationship, responsibility of the infertility
clinic was also required. Upholding the
citizenship rights of the boys, the court
said “We, in the present legal framework, have
no other go but to hold that the babies born in
India to gestational surrogate are citizens of this
country and therefore entitled to get the passport
and therefore direct the passport authorities to
release the passport withdraw from forth with.”
In order to legalize the act of surrogacy it
is very well said by Keral High Court in its
judgement P. Geetha Nagar Vs. Kerala
Live Stock Development Board28 held that
even in the absence of statutory frame
work, surrogacy in India is not illegal thus
the country becoming a favourite destina-
tion for international destitute of children.
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 N. J. Comp. Law Vol. 5 (2) 2018 pp. 14-29
Before referring to the specific, it is appro-
priate to ensuite terminology employed in
this field.
Establishing partnernity may be
enough with one quick genetic test, but
the issue is not simple and easy for the
courts. What will happen if a non-custo-
dial father has been the ‘father’ to a child
for 15 years only to learn that he is not the
biological father? Does he get a refuned
on the child support he is paid? Or if sur-
rogate mother breaks her contract, can
she go after the husband & wife clients for
monetary support for the resulting child?
There are tough legal questions for judges
& policymakers. The Indian system only
recognizes the birth mother. There is no
concept of DNA testing for establishing
paternity as far as the Indian legal system
is concerned, i.e. the name on the child’s
birth certificate has to be that of the birth
mother and her husband.
Who might use Surrogacy :
Some women are unable to carry a child
to a term. A variety of causes account for
thus including :—
(a) Failure to embryo to transplant.
(b) Repeated miscarriage.
(c) Hsterectomy or pelvic disorder.
(d) Dangerously high blood pressure.
(e) Heart or liver disease.
Due to above reasons, pregnancy
would entail a serious risk for them. Some
people may find adoption or fostering an
acceptable alternative29.
Criteria for Becoming a surrogate mother
(i) A surrogate mother must be in
good overall health.
(ii) No medical problems which could
lead to complication with pregnancy.
(iii) She should not be overweight,
30. http://www.brna.orgu.k/apnsf/content/consideringsurrogacy.
31. What considerations and objects a lawful and what not. The consideration or object of an agreement is lawful, unless
ISSN : 2393 - 9338
heavy smokers, drinkers or substance
abusers are not suitable as surrogate
mother, because the associated risk both
to the woman and to the baby.
easy (iv) Surrogate mother should have borne
atleast one child previously and preferable
have completed her own family.
(v) She should give her own consent.
(vi) She should be below age of groups
of 35 years.
(vii) Being a surrogate mother is an
emotionally & physically demanding task.
So there should be a backing of partner,
family and friends.
(viii) Careful consideration must be
given to the medical, emotional, legal &
practical issues.
What is parental order & who
can apply for it :
A parental order which is obtained by ap-
plication to the courts, makes the intend-
ed parents child’s legal parents. This has
the same effect as adoption but allows a
quicker route in case of surrogacy. In or-
der to apply for the parental order, the fol-
lowing criteria must be met :—
(i) The Child must be genetically relat-
ed to one or both of the intended parents.
(ii) The intended parents must be mar-
ried to each other and must both be aged
18 or over.
(iii) The legal mother & father (i.e. sur-
rogate mother & her partner, if she has
one) must consent to the making if order
(this consent can not be given until six
weeks after the birth of the child).
(iv) No money other than reasonable
expenses has been paid for the surroga-
cy arrangement unless the payment has
been authorized by a court.
(v) An application must be made with-
in six months of the birth of child 30
.
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 N. J. Comp. Law Vol. 5 (2) 2018 pp. 14-29 ISSN : 2393 - 9338

The basic legal questions that arise in sur- of the adopted child or being at-par with
rogate birth are as follows :— the natural born child) or marriage. Chil-
I. Is a Surrogate contract legal dren are said to be related to each other
and subsequently is it valid : by full half, and uterine blood33. The sta-
tus of children in a family is established
Surrogacy arrangements are made
by reference to the marital status of their
through contracts between the two par-
parents. They are classified as legitimate
ties. Whether these contracts are enforce-
when either conceived or born outside,
able is debatable. In India u/s31 23 of the
the wedlock are illegitimate. Surrogacy
Indian contract Act, 1872, a surrogacy
challenges both the principles. As far as
agreement may be declared void on the
legal problems are concerned the major
consideration being immoral or against
one relates to legitimacy of the child so
public policy.
born. For legal purposes, paternity is a
question based on the generic factor. Use
II. What is the legal mother of the child bi-
of the husband’s sperm for inseminating
ological genetic or the intending mother ?
the wife either in vitro or ultero does not

pose any problem to the question of pa-
Undoubtedly, on the basis of genetics
ternity of the offspring. However, the use
and DNA finger printing, the mother is the
of donated sperm in AID inevitably creates
woman who se ovum has been fertilized.
conflict with social reality and genetic truth.
But biologically, in terms of the intimate
In the absence of statutory intervention, the
relationship between a baby developing
child is illegitimate, his rights being those
in a womb and the woman carrying it, the
enforceable against his genetic father i.e.
surrogate mother is the real mother. Dis-
the anonymous donor and his social father
putes over the custody of the baby have
is a legal stranger to him. This state of affairs
already arisen in this regard. These issues
creates problems in his inheritance rights.
can become highly personal e.g. When

woman become surrogate mother in the
case of an embryo resulting from the fer- In India legitimacy issues is governed by

tilization of an ovum from her daughter. section 112 of Evidence Act, where under

Issues may get even more complicated the child would be legitimate child of the

in regard to other family relationships e.g. woman and her husband, and artificially

between siblings, property rights, inherit- of the process (in its sexual aspect) would

ance32 etc. make no difference. The presumption is

also rebuttable in the ground of access.
III. Legitimacy of the Child :
Of course, if the marriage was not con-
The law in India recognizes relation- summated in the usual sense, it is argu-
ship by blood (adoption is included in able that a decree of nulity of marriage
the category by the legal presumption can still be obtained.

it is forbidden by law; or of such a nature that, it permitted would defeat the provisions of any law; or is fraudulent;
or involves or implies injury to the present or property of another the court regards it is immoral, or opposed to public
policy.In each of these cases consideration or object of an agreement is said to unlawful. Every agreement of which
the object or consideration is unlawful is void.
32. http://www.ebc.india.com/lawyer/articles/96v504htm.
33. Full blood when they have same parents, half blood when they have same father but different mother & uterine blood
when they have same mother and different fathers.
34. http://www.yaleedu/ynhti/curriculam/units.

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 N. J. Comp. Law Vol. 5 (2) 2018 pp. 14-29
In India, legitimacy of children is gov-
erned by the personal laws. There is no
provision of legitmating under the Indian
legal system. The Hindu Marriage Act
1955 and Special Marriage Act, 1954 con-
fer legitimacy in children of void marriage
enumerated under those acts alone and
deny legitimacy to children of their void
marriages which fall outside the preview
of these acts. An ART child will not come
under provisions enumerated under any
of the acts mentioned above. Hence they
will be illegitimate in the absence of any
legislation legitimizing the ART children.
Inspite of the fact that the mother makes
a much larger contribution to the birth of
the baby, the baby is considered illegiti-
mate. If the mother is not legal wife of the
man. Surrogacy denies even the recogni-
tion of women’s biological contribution.
As it is already seen in traditional surro-
gacy i.e., either case, the surrogates own
eggs are used. Genetically the surrogate
becomes mother of the resulting child.
And she can as such there is no any law.
In married surrogate, the spouse is a nec-
essary party and many states presumes
him to be the genetic father.
In the traditional scenario of an unmarried
surrogate with a semi permanent signifi-
cant mother. Some states may allow him
the right of a common law husband & he
is at liberty to contest the legal proceed-
ings in either case the surrogate’s spouse
or significant mother would have to agree
to sexual abstinence during the duration
of fertilization or embryo transfer. These
men are also subject to infections dis-
ease testing. Disease could be problem-
atic during pregnancy or delivery.
35. http://www.answers.com/topic/in-vitro-fertilisation.
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ISSN : 2393 - 9338
In the state where the child is to born (if
the surrogate just happens to be passing
through) has a sufficient connection and
has to issue the birth certificate. It is also a
legal matter as to whose names are listed
on the birth certificate.
It is requirement of some states that a con-
tract be drawn up among the parties in-
volved in birthing arrangement. All points
in the contract should be carefully expored.
Parties that should be present are :
(a) The Surrogate (Spouse / Significant other)
(b) The infertile Couple
(c) Legal Counsel
In order to avoid disputes, most infertility clin-
ics require a contract. Legal Counsel is recom-
mended in order that all involved, to ensure
that local laws are kept in compliance.34
Husband and she is at liberty to contest
legal proceedings. In either case husband
may feel emotional attachment with un-
married surrogate as she had fulfilled his
wish, which his wife could not. This could
lead to divorce.
If the surrogacy has been made with the
help of agency, then agency has to ar-
range contract of life insurance for the
surrogate’s family. If surrogacy mother
dies during pregnancy delivery. They also
must provide life insurance for the child, if
contracting couple dies before the child is
born. Even we are by-passing its natural
method of conception and creating life in
the laboratory.
In all the consequence, both have to de-
cide in the contract because the surro-
gate may be forced to terminate the preg-
 N. J. Comp. Law Vol. 5 (2) 2018 pp. 14-29
nancy if so desired by the contracting
couple & she will not be able to ter-
minate it, if it is against the desire of
couple, she has difficulty in keeping
her own baby. There have been in-
stances where the contracting indi-
vidual has specific sex of the bay as
well as refused to take the baby, if it
was normal & filed a suit against the
surrogate saying she had broken the
contract.
Some woman may participate
in surrogacy to saving their
marriage.
A single women or some sex couple may
wish to bring up a child or a man may
consider the possibility and this would
meet the approval of those who which
for decent without any involvement of the
other sex or any association involving ob-
ligation this surrogacy pattern is chang-
ing traditional role of parent-hood.
Handling over a child after de-
livery for a fee is “Baby Selling”
or not.
Product of human body must not be trad-
ed for profit, leading to restrict the right to
intercede to only few individuals.
In a few case, a laboratory mix-ups, misi-
dentified gametes, transfer of wrong em-
brays have occurred leading to legal ac-
tion against the IVF provider and complex
paternity suits. As an example in the case of
woman in California who received the em-
bryo of another couple and was notified of
this mistake after the birth of her son.
International Scenario.
AUSTRALIA
In Australia commercial surrogacy is ille-
gal, contracts in relation to surrogacy ar-
36. 2013 L.J.Mad, 3. P 493
37. (2015) KLJ, I, P.494.
ISSN : 2393 - 9338
rangement are unenforceable, and any
payment for soliciting a surrogacy ar-
rangement is illegal. However altruistic
surrogacy has recently become legal in
all states, except Tasmania (which ban
surrogacy under the surrogacy contracts
act, 1993).
United Kingdom
In United Kingdom, commercial surroga-
cy arrangements are not legal. It is illegal
to pay more expense for a surrogacy ar-
rangement is recognised under Human
Fertilization and Embryology Act 1990.
Surrogacy has become increasingly com-
mon in U.K. and offers couples an alterna-
tive route to parenthood if all other meth-
ods, including IVF treatments fail current
legislation, U.K. Human Fertilisation of
Embryology Act, 2008, allow heterosexu-
al, married couples to get a mother with
whom they have entered into a surrogacy
agreement. But gay, lesbian and unmar-
ried couples cannot do this. The surro-
gate mother has to be named on the birth
certificate. If she is married, her husband
is legally considered to be the father.
United States
In the U.S. Commercial Surrogacy is pro-
hibited in many states. In famous Baby
M. Case, the New Jersey Supreme Court
came to the conclusion that surrogacy
contract is against public policy. In Baby
M’ case the couple entered into an agree-
ment with the surrogate mother whereby
she had to carry the child to term and
35
surrender custody of the child in return
for 10,000 dollars plus medical expenses.
After the birth, the surrogate mother re-
scinded the contract & refused to deliver
the child due to deep attachment with the
• 25 •
 N. J. Comp. Law Vol. 5 (2) 2018 pp. 14-29
child. The new Jursey Supreme Court de-
clared that surrogacy agreements to be
void & unenforceable. The court held the
contract to be violative of public policy as
the contract was involuntary, due to the
irrevocable commitment of the mother
before she knew the strength of her bond
with her child.
In contrast to this, in the case of Johnson
V. Calvert, the California Supreme Court
extended constitutional protection of sur-
rogacy contracts and validated them in
the touchstone of public policy consider-
ations. Ridden with feminist overtones the
court held that the surrogacy contracts
involved free, informed of national choice
by a woman to use her baby.
Canada
In Canada the Assisted Human Produc-
tion Technology Act, 2004. govern the
field of surrogacy. Here surrogacy is legal
but compensated surrogacy, where fee
or profit is paid to the surrogate mother is
illegal, irrespective of whether it is a tradi-
tional or gestational arrangement.
Japan
It is the woman who delivers the baby,
and not the woman who provides the
eggs in considered the baby’s mother in
a surrogate birth.
South Africa
Paying surrogate mother is illegal.
New Zealand
Commercial Surrogacy is illegal but ‘altru-
istic surrogacy’ is allowed.
France
Any kind of surrogacy, commercial or oth-
erwise is illegal.
While Western Countries focus on the
pain of giving up a baby which the moth-
• 26 •
ISSN : 2393 - 9338
er has carried for 9 months and there are
many court battles fought on this issue,
but unfortunately in India this is not the is-
sue at all.
There are three types of mother, the ge-
netic mother, (who donates the eggs &
contribute to half the genetic code i.e. 23
chromosomes), the gestational mother
(who carries the foetus in her womb) &
the social mother (who provides for the
care and upbringing the child). Each is
important for the care & well being of the
child. Surrogacy is not a simple arrange-
ment, it is extremely complex. The situ-
ation can be successful, overwhelming
and intense. Patience & preservance is a
must. Both, the surrogate and the infertile
couple should obtain a legal counsel be-
fore entering into and signing a contract.
It is in their best interests. Disclosure of the
surrogate relationship should be commit-
ted so as to avoid unwarranted scrutiny.
It is a high time for the Indian Parliament to
study in detail the international perspec-
tives on surrogacy in general & their posi-
tion prevailed in India in particular to un-
derstand it the best & provide good deal
of rules & regulations to our own country
after carefully considering social feelings
and acceptance to this practice of surro-
gacy. The focus needs to be given an le-
galizing altruistic surrogacy. It is advisable
to protect the society from onslaught of
capitalism over Asian poverty & stop the
exploitation of poor women being used
as machines.
There is a strong need to modify & make
the adoption procedure simple for all.
Adoption of child in India is complicated
and a lengthy procedure for those child-
less couples who want to give a home to
these children. This will bring down the
 N. J. Comp. Law Vol. 5 (2) 2018 pp. 14-29
rates of surrogacy Altruistic & not com-
mercial surrogacy should be promoted.
Law should be framed and implanted
to cover the grey areas & to protect the
rights of women and children. Adoption is
an underutilised option that can not only
give happiness to a children couple but
also provide a home & a future for an or-
phan child. Most importantly, the rights &
obligations of the biological parents, sur-
rogate mother should be determined by
the statute not by contract. Such a social-
ly sensitive issue should not be regulated
by contractual relations. Paramount con-
sideration should be given to the welfare
of the child.
Maternity benefits for Surro-
gacy
Over the past few years, high courts
across India have been addressing an in-
teresting question of law : would a woman
employee who has had a child through
surrogacy be entitled to maternity leave.
The earliest case that seems to have ad-
dressed the issue of maternity leave in
the case of children born of surrogacy is
K. Kalaiselvi Vs. Chennai Port Trust36 de-
cided by the Madras High Court in 2013.
Justice K. Chandra’s judgement in the Ka-
laiselvi Case in brief and to the point. He
holds that there is nothing wrong as per se
illegal in granting maternity benefits un-
der the Port Trust’s leave regulations. The
regulations relating to maternity benefits
under the Port Trust’s leave regulations.
The regulations relating to maternity are
interpreted to mean and include surroga-
cy as well and the court found that there
was no reason, to deny such leave even if
there is no specific mention of surrogacy.
38. (2015) DLT 221 P. 756.
39. (2008) SCC, SC. 13P. 518.
• 27 •
ISSN : 2393 - 9338
The Keral High Court’s judgement is P.
Geetha Vs. The Keral livestock Depart-
ment (2015)37 was the next such case de-
cided in June 2014. The court goes into
a long discussion on how to legally un-
derstand motherhood considering tech-
nological developments such as surro-
gacy. Unlike adoption, where legal fiction
deems a person to be mother of the child
or natural births where mother-hood is a
matter of fact. Surrogacy is both & neither.
It is not purely a legal fiction as the child
shares the genetic material of the mother,
yet the child is not born of the mother. At
the end of it though, the High Court did
not come up in the a comprehensive defi-
nition of motherhood, however preferring
to life a few homilies from Oprah Winfrey
and Snaches of text from, Charles Dar-
win’s & Richard Dawkins’ books : While
citing & following the Kalsaiselvi Case, the
Keral High Court, however, limits the ben-
efits only to those available under the ap-
plicable regulations & even then excludes
those leave benefits relating to health of
the mother because a surrogate mother
does not actually deliver the child.
The Delhi High Court’s judgements in Rama
Pandey Vs. Union of India38 delivered in
July 2015 categorically rejects the argument
that maternity benefits were meant only to
protect the health & safety of the woman
and the child. Justice Shakdher, who de-
cided this case, rests his reasoning on
the interpretation of the word “materni-
ty” to include not just biologically giving
birth to a child, but also adoption & sur-
rogacy. He does this by not only exam-
ining the applicable rules, but also other
laws & the Supreme Courts judgement in
Baby Manji Yamada Vs. Union of India
 N. J. Comp. Law Vol. 5 (2) 2018 pp. 14-29
(2008)39 to understand what surrogacy
means is law &, therefore, what implica-
tions it has on the term “maternity” for the
purposes of receiving maternity benefits.
Both the Kalaiselvi & Geetha case are
cited, but more to buttress the reasoning
than to follow it on the whole.
The Bombay High Court’s judgement in
Dr. Hema Vijay Menon Vs. State of Ma-
harashtra, 40
also delivered in july 2015,
goes further is trying to understand what
motherhood means, legally. Authored by
Justice Vasanthi Naik, it provides a strong
and cogent justification for an expanded
conception of motherhood in the context
of maternity benefits. Naik does not reach
for authorities & sources to buttress her
assertions on the nature of motherhood.
She relies on the logic (& perhaps life ex-
perience) to point out that maternity leave
is not just about the physical aspects of
pregnancy but the emotional & psycho-
logical one too, especially the bonds be-
tween the mother & the child.
The latest judgement on this issue is the
Chattisgarh High Court’s in
Agarwal Vs. State of Chhatisgarh . It
grounds its interpretation not only textu-
ally, but on the constitution too. It reads
in the right to motherhood under the right
to life protected under article 21. What is
problematic though is some vague gen-
eralisations about motherhood
the most natural thing for the women.
Although these relate to observations of
Supreme Court (Municipal Corporation
of Delhi V. Female Workers
Rolls 2000), he approach seems to sug-
40. (2015) SCConline.chh.19
41. (2017) SCC online cnh.19
42. SCC, SC, 3, P. 224.
43. Clause 3 (ii) of the Surrogacy (Regulation) Bill. 2016
ISSN : 2393 - 9338
gest that the maternity benefits law is a
paternalistic benevolence to women seri-
ously compromising the child’s and their
own physical, emotional & psychological,
needs.
The reason for trying to understand the
underlying thinking in these judgements
come into sharp focus because of the pro-
posed Surrogacy (Regulation) Bill. 2016
with commercial surrogacy proposed to
be banned.43 how will courts approach
the question of the validity of such a ban?
Will the courts see it from the point of view
of the woman who provide surrogacy ser-
vices or those who obtain such services?
What these judgements make clear is
that court sees women who get a child
through surrogacy as no different from
women who give birth to a child. But will
the court see as those who give birth to a
child for commercial reasons as being the
same as those who give birth to a child to
build a family?
However, the recent attempts in law mak-
Sadhana ing in India hardly create any confidence.
41
It seems that the policy in India is more
indined towards permitting Surrogate
motherhood. However, the policy mak-
ers are in dire dilemma on what type of
surrogacy can be ideal in the Indian situ-
ation. The 2008 bill permit commercial
being surrogacy whereas the 2016 bill ties to
introduce altruistic Surrogacy that too
through a close relative only. It also hard
to accept the new contentious ideas of
42
(Master close relative acting as surrogate mother
as it raises several questions moral ethi-
• 28 •
 N. J. Comp. Law Vol. 5 (2) 2018 pp. 14-29
cal and legal. It goes to the root of the sanc-
tity of law prescribing prohibited degrees of
relation for the marriage under the personal
laws as well as Hindu Marriage Act. It also
raised several questions as to the psycho-
social impact, which can be created by the
presence of two mothers in the same family
set up. The very concept of attraction itself is
problematic in nature. The very nature of al-
truism rest on philosophy or humanitariani-
sion. In such circumstances, the concept of
right has less significance. Therefore an im-
portant question how we can reconcile the
interest of various stakeholders. If the surro-
gate mother refuses to part with the child,
can the law compel her? If not what about
the right of the intending couples.
ööööööö
• 29 •
ISSN : 2393 - 9338
CONCLUSION
Therefore, the whole situations need to
be reconsidered on a realistic perspec-
tive. Any decision on permitting surrogacy
or not should be based on sound policy
considerations, balancing the interest
of various stakeholders and without
hurting the sentiments of the various
section of society. The balance clearly
tilts in favour of prohibition as surroga-
cy militates against many ethical & le-
gal values. The best alternative seems
to be smooth and flawless adoption
process accessible to all irrespective of
religion. It will not only be a blessing for
the childless couple but to lakh of or-
phans all over the world.
 N. J. Comp. Law Vol. 5 (2) 2018 pp. 30-36 ISSN : 2393 - 9338

TIME TO RECONSIDER THE

LAW OF PATENTS OF ADDITION

P. P. Rao

Assistant Professor, Faculty of International Law,

Chanakya National Law University, Patna.

Email : peketiramarao1@gmail.com

ABSTRACT

The apprehension regarding the outcome of the recent Supreme Court’s judgment
in the case of Novartis will affect the interests of the drug companies. But the issue
is to decide that how to balance out the conflict between access and protection. It is
equally difficult without research and development, to have new innovations which
indulge a financial factor. In this paper an attempt is made to discuss the problem to
the root and to suggest an amendment to section 55 of the Patents Act, 1970 duly re-
considering the extension of the term of patents of addition beyond the term of main
application basing on the factors to be considered on the effect of modification of such
process. It is contemplated that the proposed amendment may eventually balance the
conflicting interests of the pharma companies and the poor public.

KeyWords: Access To Medicine, Ever Greening, Patents of Addition, Protection of IPR;

TRIPS, Amendment To Section 55, Patents Amendment Act (2005).
PAGE : 12 REFERENCES : 20

I NTRO DU C TION in the much debated case of Novartis AG

The protection of intellectual property
is indispensible for the development of
trade and commerce in any country. In-
tellectual property being qualified as a
property is also guaranteed protection
under Article 300A 1
of the constitution .
Nonetheless it is often the case that there
is conflict between protection of intellec-
tual property rights and public policy. The
problem of ever greening is one such area
of conflict which has come into the lime
light after the judgment of the apex court
v. Union of India & Others. Much discon-
tent has been shown by various multina-
tional pharmaceutical companies over
this judgment refusing the grant of pat-
ent for the want of functional efficacy and
2
particularly in the case of medicines for
the want of therapeutic efficiency. It may
be a concern that such a restrictive inter-
pretation of the term “efficacy” in section
3(d)3 would hamper research and devel-
opment in the country and in turn reduce
the FDI. However, at the same time it ca-

1. It runs as, “No person shall be deprived of his property save by authority of law.”
2. A.K. Lala , Intellectual Property Protection and The Constitution, 6 COMPANY. CASES 363 (2003)
3. It runs as: “the mere discovery of any new property or new use for a known substance or of the mere use of a known process, machine or
apparatus unless such known process results in a new product or employs at least one new reactant;”

• 30 •
 N. J. Comp. Law Vol. 5 (2) 2018 pp. 30-36 ISSN : 2393 - 9338

ters to the larger purpose of facilitation of dition of a clause to enable applications

access of the life saving drugs to the poor
by allowing the generic pharmaceuticals
companies to manufacture the drugs after
the expiry of patent. Is there a way out? Can
our patent law protect both access and pro-
tection of IPR at the same time? The present
paper aims to analyse the law regarding the
patents of addition in India and to suggest
some modifications in the laws of patents of
addition so that the issue of ever greening
of patents could be tackled efficiently and
a balance could be achieved between the
need of facilitating the access and protect-
ing the IPR in case of life saving medicines.
The laws regarding the patents and patents
of addition and their interplay with the issue
of ever greening has been discussed herein
under and some modifications have been
suggested to balance out both access and
protection at the same time.
Evolution of Patents of addition regime
It was on the basis of the recommenda-
tions of the Ayyangar Committee
Patents Act, 1970 5
, was enacted by the
Indian parliament. In its report titled "Re-
port on the revisions in the patent law",
the Ayyangar Committee suggested ad-
for patents of addition, in line with the UK
Patents Act, 19496. Sections 547 , 558 and
569 of the Patents Act, 1970 of India stip-
ulate the specific provisions that govern
patents of addition. These provisions pro-
vide for the protection of incremental in-
vention in addition to the main invention.
Ever greening and patents of
addition
Generally it is said that “Ever greening” is
a term used to label practices that have
developed in certain jurisdictions wherein
a trifling change is made to an existing
product, and claimed as a new invention.
The coverage/protection afforded by the
alleged new invention is then used to ex-
tend the patentee’s exclusive rights over
the product, preventing competition10.
Such practices lead to monopoly and
rise in prices. The current law in this re-
gard seeks to prevent these practices by
granting protection only in case of some
4
, the enhancement of efficacy with respect to
known efficacy.11 However the judgment
in the Novartis case12 , the requirement
of enhanced efficacy is further restricted
only to “functional efficacy”. It complicates

4. N.R. Ayyangar, Report On The Revision Of The Patents Law, (1959)

5. Act No. 39 of 1970
6. See Section 26 , The UK Patent Act, 1949.
7. It runs as , “1) Subject to the provisions contained in this section, where an application is made for a patent in respect of any improvement in or
modification of an invention described or disclosed in the complete specification filed therefor (in this Act referred to as the "main invention") and the
applicant also applies or has applied for a patent for that invention or is the patentee in respect thereof, the Controller may, if the applicant so requests,
grant the patent for the improvement or modification as a patent of addition.(2) Subject to the provisions contained in this section, where an invention,
being an improvement in or modification of another invention, is the subject of an independent patent and the patentee in respect of that patent is also
the patentee in respect of the patent for the main invention, the Controller may, if the patentee so requests, by order, revoke the patent for the improve-
ment or modification and grant to the patentee a patent of addition in respect thereof, bearing the same date as the date of the patent so revoked.(3) A
patent shall not be granted as a patent of addition unless the date of filing of the complete specification was the same as or later than the date of filing
of the complete specification in respect of the main invention.(4) A patent of addition shall not be sealed before the sealing of the patent for the main
invention; and if the period within which, but for the provisions of this sub-section, a request for the sealing of a patent of addition could be made
under section 43 expires before the period within which a request for the sealing of the patent for the main invention may be so made, the request for
the sealing of the patent of addition may be made at any time within the last mentioned period..”
8. It runs as, (1) A patent of addition shall be granted for a term equal to that of the patent for the main invention, or so much thereof as has not expired,
and shall remain in force during that term or until the previous cesser of the patent for the main invention and no longer:Provided that if the patent for
the main invention is revoked under this Act, the court, or, as the case may be, the Controller, on request made to him by the patentee in the prescribed
manner, may order that the patent of addition shall become an independent patent for the remainder of the term for the patent for the main invention
and thereupon the patent shall continue in force as an independent patent accordingly.(2) No renewal fee shall be payable in respect of a patent of
addition, but, if any such patent becomes an independent patent under sub-section (1), the same fee shall thereafter be payable, upon the same dates,
as if the patent had been originally granted as an independent patent.”
9. It runs as, (1) A patent of addition shall be granted for a term equal to that of the patent for the main invention, or so much thereof as has not expired,
and shall remain in force during that term or until the previous cesser of the patent for the main invention and no longer:Provided that if the patent for
the main invention is revoked under this Act, the court, or, as the case may be, the Controller, on request made to him by the patentee in the prescribed
manner, may order that the patent of addition shall become an independent patent for the remainder of the term for the patent for the main invention
and thereupon the patent shall continue in force as an independent patent accordingly.(2) No renewal fee shall be payable in respect of a patent of
addition, but, if any such patent becomes an independent patent under sub-section (1), the same fee shall thereafter be payable, upon the same dates,
as if the patent had been originally granted as an independent patent.”
10. Novartis AG v. Union of India & Others, Civil Appeal Nos. 2706-2716 of 2013,Available at: http://judis.nic.in/
supremecourt/imgs1.aspx?filename=40212 (Accessed on 5th May, 2013)
11. See Sec. 3(d), Patents Act 1970
12. Supra note 10

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 N. J. Comp. Law Vol. 5 (2) 2018 pp. 30-36
the situation as now, after this judgment,
Indian patent law is unable to offer pro-
tection to modification in form of a medi-
cine, even if the modification made is
desirable for protection. For example the
drug Glivec, as was claimed to provide a
better bioavailability and preservation.
Such a denial of incremental invention
even though in case of modifications in
form and structure only, will be detrimen-
tal to the research & development in the
country as the multinational companies
would be reluctant to fund research for
increments in the products due to the thin
line of difference between form and func-
tion of a medicine.
It is interesting to note that though the re-
quirement of functional efficacy is crucial
in the cases of fresh grant of patents in
general but there is no such requirement
of novelty or inventive step or functional
efficacy in the case of “patents of addition”
elsewhere. Even section 56 of the Patents
Act, 1970 provides that the patent of addi-
tion cannot be invalidated, or revoked on
the ground only that the invention claimed
in the complete specification of the patents
of addition does not involve an inventive
step in view of the main application.
Even most of the judicial pronouncements
regarding inventive steps are in respect of
grant of patents and not that of patents
of addition. In the case of Canadian Gen-
eral Electric v. Fada Radio
in Bombay Agarwal v. Ramachand,
and the judgment in the case of Lallub-
haiChakubhai Jariwala v. Chimarial
provide only that mere collection of two
13. ibid
14. See Sec.56 , Patents Act 1970
15. A.I.R. 1930 P.C. 1
16. A.I.R. 1953 Nag 154
17. A.I.R. 1936 Bom 99
ISSN : 2393 - 9338
or more things, without some exercise
of the inventive in combining them is not
subject matter of a patent. It is clear that
these judgments are regarding the sub-
ject matter of a patent and not that of “pat-
ents of addition”. So to say that though
13
the issue of novelty and inventive step
may be a concern in the grant of a fresh
patent but it is certainly not a concern in
case of patents of addition which is clear
from a plain reading of section 56 of the
Patents Act, 1970. But then why the provi-
sions regarding patents of addition can-
not be applied to situations like that of the
Glivec controversy? It is only due to the
provisions of section 55 of the patents Act
providing for the term of “patents of addi-
tion”. It provides that the term of the pat-
ents of addition shall be equal to that of
the main application and shall remain as
long the main application is in force and
expires along with that of the main appli-
cation and so such patents of addition for
incremental modifications cannot be ap-
plied beyond the period of main applica-
tion as was the case with the drug Glivec.
Before considering the fallouts of this pro-
14
vision, the objectives of preventing ever
greening has to be considered. It is cer-
tainly to prevent monopoly in the market
and to increase the access to the lifesav-
ing drugs for the common public. Had it
been the case that the term of the patents
15
, followed of addition could be extended beyond
16
the life span of original patent, then at the
same time the issue of ever greening and
17
access to medicines would have been ef-
ficiently balanced.
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 N. J. Comp. Law Vol. 5 (2) 2018 pp. 30-36 ISSN : 2393 - 9338

Section 56 of the Patents Act provides for
the protection of incremental modifica-
tions till the term of main application. If
such a protection for incremental modifi-
cations could also be granted beyond the
term of original patent, then the pharma
companies will be able to get incentives
for incrementing the features of the ge-
neric medicines already in the market.
Also the generic pharma industry at the
same point of time will be able to produce
cheaper generic medicines after the ex-
piry of the term of the main application
as it would only be incremented prod-
uct with modified form or function which
will be protected and not the medicine
or product specified in the main applica-
tion. This will help India to maintain its
position of globally recognized producer
of low-price generic drugs.18 So there is
a need to make changes in section 55 of
the Patents Act, 1970 which prescribes for
the term of the patent of addition in order
to balance out the needs of both access
and protection.
Drawing distinction
the original and incremented
product
The incremental invention with respect to
any original product seeks to make some
increments either in form or function of
the original product. In this process even-
tually there will be two types of products,
one will be the original product without
any increment and the other will be the in-
cremented product which will be a com-
bination of the original product and the in-
crements made thereafter to. When there
is such clear distinction between these
two, separate provisions may also be pro-
vided for such categories. It is also essen-
tial now as of general notion of the phar-
macy companies is that section 3(d) and
the judgment in the Novartis AG v. Union
of India are impediments to the protection
regime of incremental invention to a great
extent and the pharmacy industry cannot
go for huge investment for research and
development which is very much essen-
tial for any new innovations.
TRIPS Allows For Change?
One of the most important agreements
within the WTO19 is the Trade-Related
Aspects of Intellectual Property ("TRIPS")
Agreement20 , which mandates that all
WTO members adopt and enforce cer-
tain minimum standards of IPR protec-
tion.21 It was in order to make the Indian
patent Law fully TRIPS complaint, that
The Patents Amendment Act (2005) was
enacted.22 So any change proposed to
be made in the Patents Act has to be first
between tested on the touchstone of TRIPS.
According to Article 7 of the Agreement on
Trade-Related Aspects of Intellectual Property
Rights, “the protection and enforcement of intel-
lectual property rights should contribute to the
promotion of technological innovation …, to
the mutual advantage of producers and users of
technological knowledge and in a manner con-
ducive to social and economic welfare, and to a
balance of rights and obligations.”23 Also arti-
cle 8(1) of the TRIPs agreement provides, “Mem-

18. Janice M. Mueller, The Tiger Awakens: The Tumultuous Transformation of India’s Patent System and the Rise of Indian Pharmaceutical Innova-
tion, 68 U. PITT. L. REV.514-16 (2007)
19. Member Information: India and the WTO, WORLD TRADE ORG., http://www.wto.org/english/thewto e/countries e/indiae.htm (last visited
May. 4, 2013).
20. Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr.15, 1994, Marrakesh Agreement Establishing the World Trade Organiza-
tion, Annex 1C,Legal Instruments-Results of the Uruguay Round, 108 Stat. 4809, 33 I.L.M. 81
21. A brief summary of the TRIPS Agreement is available at Agreement on Trade Related Aspects of Intellectual Property Rights, Including Trade
in Counterfeit Goods, WORLD TRADE ORG., http://www.wto.org/english/docs e/legal-e/ursum-e.htm#nAgreement (last visited May. 4, 2013)
22. BasheerShamnad ,INDIA'S TRYST WITH TRIPS: THE PATENTS (AMENDMENT) ACT, 2005,1 Indian J. L. & Tech. 15 2005,P 43
23. TRIPS: Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Art. 7, Marrakesh Agreement Establishing the World
Trade Organization, Annex 1C, THE LEGAL TEXTS: THE RESULTS OF THE URUGUAY ROUND OF MULTILATERAL TRADE NEGOTIA-
TIONS 320 (1999), 1869 U.N.T.S. 299, 33 I.L.M. 1197 (1994) [hereinafter TRIPS Agreement].

• 33 •
 N. J. Comp. Law Vol. 5 (2) 2018 pp. 30-36
bers may…, adopt measures necessary to pro-
tect public health and nutrition, and to promote
the public interest in sectors of vital importance
to their socio-economic and technological de-
velopment, provided that such measures are con-
sistent with the provisions of this Agreement.
The TRIPS agreement strikes a carefully-
negotiated balance between providing in-
tellectual property protection-which is es-
sential if new medicines and treatments
are to be developed and allowing coun-
tries the flexibility to ensure that treatments
reach the world's poorest and most vulner-
able people.25 A combined reading of the
above article 7 and 8(1) of TRIPS along with
Article 47 of the Constitution of India which
provides for the duty of the State to raise
the level of nutrition and the standard of liv-
ing and to improve public health, gives the
ground for introducing such changes in the
provisions of the patents of addition so as to
make the patent regime in India to work for
the mutual advantage of both the producer
and the consumer i.e. the pharma compa-
nies and the patients.
Also in the case of F. Hoffmann-La Roche
Ltd vs. Cipla Ltd., Mumbai Central26
court observed, “Undoubtedly, India entered
into the TRIPS regime, and amended her
laws to fulfill her international obligations,
yet the court has to proceed and apply the
laws of this country, which oblige it to weigh
all relevant factors.
Another provision of TRIPS also allows the
scope for such changes as in Article 33 pro-
viding for the term of protection of patents
prescribes, “The term of protection available
24. Ibid Art 8(1)
25. Press Release, World Trade Organization, Moore: Countries Must Feel Secure That They Can Use TRIPS' Flexibility, (June 20,
2001), http://www.wto.org/english/news_e/news01_e/dg_trips_medicines_010620_e_copy(1).htm (last accessed 5th MAY, 2013).
26. MIPR 2008 (2) 35
27. Adams, Stephen R. Information Sources in Patents. Munich: K.G. Saur. 2006. Pgs. 26-28.: see Article 4 of Council Regulation (EEC) No 1768/92.
• 34 •
ISSN : 2393 - 9338
shall not end before the expiration of a
period of twenty years counted from the
filing date”. Though this provision includes
the condition that the term of patent protec-
tion should not be less than 20 years but it
24
” does not explicitly exclude the possibility
that the Member-governments may extend
the protection even beyond 20 years period.
One such example can be found from the
Supplementary Protection Certificate of Eu-
ropean Union, which is a mechanism cre-
ated by the European Union to allow for
the extension of a patent’s term. In specific
cases, a patenting authority may see a need
for a patent to remain in force beyond the
initial expiration date, and the different pat-
ent authorities of respective members of EU
have established different mechanisms to
accomplish this facility.27 As it is facilitated
in TRIPS agreement, it is suggested that for
the incremental innovations to the effect of
that innovation percentage, the period may
be extended. The protection may be ex-
tended beginning for a period of one year
to a maximum limit of twenty years for that
new increment/process. In these lines it is
necessary to make an amendment to the
Indian Patent Act, 1970, which may be help-
the ful in protecting the interests of pharmacy
companies as well as the generic medicine
manufacturers. So it can be said that TRIPS
aptly provides for such flexibility to the ex-
tent that the legislature should take steps to
make such amendment in the provisions
regarding the patents of addition.
The Downside of Current Law
Regarding Patents of Addition
The present position of law regarding
the patents of addition is that it does not
 N. J. Comp. Law Vol. 5 (2) 2018 pp. 30-36
extend beyond the period of main ap-
plication. In such a case it is unable to
offer protection to incremental modifica-
tions in the medicines beyond the term
of main application. The most disturbing
result of this would be the halting of R&D
in the country. In the absence of any in-
centive, it is highly unlikely that the phar-
macy companies would invest in such
research projects to make increments in
the form and function of the medicines
beyond the period of main application.
The vacuum in the R&D of the medicines
in Indian pharma industry will have a
long lasting effect on the status of Indian
pharmaceuticals industry as the “Phar-
macy of the third world”. 28
Owing to lack
of research, the medicines in the Indian
market will not evolve beyond the peri-
od of their main application, whether in
form or in function. If such a trend contin-
ues the Indian pharmacy industry would
eventually be sidelined due to more de-
veloped and efficient alternatives of ge-
neric medicines produced and sold in
India. This kind of situation will also be
injurious to the public health as the pub-
lic would not be able to access better
medicines at affordable price. Providing
medicines to the public at affordable
price is also a part of the state’s duty. 29
Balancing Access and Protec-
tion: Proposed Changes
To facilitate both access and protection
at the same time, the patent law in India
needs to be amended. The current patent
regime in the country though able to en-
sure access is unsustainable in its outlook
as it halts R&D in the country. Some pos-
28. See Sudip Chaudhuri, The WTO and India’s Pharmaceuticals Industry (Patent Protection, TRIPS, and Developing
Countries), (Oxford University Press, 2005)
29. Art. 47 of The Constitution of India (1950).
• 35 •
ISSN : 2393 - 9338
sible modifications which may be made
to the law of the patents of addition in or-
der to balance the needs of both access
and protection are as follows:
(i) Increasing the term of patents of
addition
The law relating to “Patents of addition”
can be modified to increase its term be-
yond the period of the main application.
The protection through patents of addi-
tion beyond the period of main applica-
tion will incentivize R&D and facilitate in-
crements in the form and function of the
life saving drugs. It is to note that such a
modification would not hamper the inter-
ests of generic pharmacy companies as
with the expiry of the period of main ap-
plication, they get the permission to man-
ufacture those compounds/medicines
specified in the main application. But only
those companies who have been granted
such patents of addition will be able to sell
incremented or enhanced form of such
compounds/medicines. This ensures the
availability of both the generic and the in-
cremented form of the medicines in the
market which would give more choice to
the common public and maintain their ac-
cess to cheaper alternatives of medicines.
(ii) Making the term of patents of ad-
dition proportional to increase in the
form or function.
Another issue is that of the determination
of the term of patents of addition grant-
ed beyond the term of main application.
For this it is proposed that in such cases,
the term of protection to the incremental
modifications can be made proportional
to the percentage increment in the form
and function of the original compound/
medicine. Based on scientific assessment
 N. J. Comp. Law Vol. 5 (2) 2018 pp. 30-36
by the concerned experts in the field, the
incremental modifications made can be
placed in already determined categories
on the basis of the quantum of increment
done in the form and function. Regarding
such proportional arrangements it may
be the case that the percentage increase
in the form and function due to the incre-
mental invention can be granted protec-
tion of patent for a period which will be
a proportionate part of the period of 20
years calculated in light of the net per-
centage increase made in the original
product. E.g. for every 5% increment, one
year protection may be granted, so that
for a 30% increase, the protection period
can be of 6 years and in case there is a
100% increment, then on the basis of this
calculation, the term of protection will be
20 years, which is eventually the period of
protection granted for any 100% original
product. Such a calculation will not only
determine the period of protection which
may be granted for the incremented prod-
ucts but will also cover the situation when
the increment is so substantial that it can
be considered as a 100% original inven-
tion in itself. It will be helpful in preventing
the attempts of ever greening by the phar-
macy companies as after applying this
method, it is only the incremented prod-
uct which is subject to patent protection
to the extent of increment and the original
product goes into the public domain after
the expiry of the original period. This will
also promote the companies to come up
with more effective increments in order to
get a larger duration of protection for the
incremental innovations.
ööööööö
• 36 •
ISSN : 2393 - 9338
CONCLUSION
When there is much discontent with re-
spect to the judgment given by the apex
court in the case of Novartis AG v Union
of India and the multinational companies
are rethinking their strategies regarding
investment and research in India, it is re-
quired to make adjustment in Indian pat-
ent laws which in the author’s view may
be helpful to resolve the problem and
the proposed changes will efficiently ad-
dress the issue of patent protection of the
incremental invention made in addition
to the original product. Such changes in
the laws of patents of addition will go a
long way in ensuring the continuing for-
eign investment and would also give an
impetus to Research & development in
India. The proposed changes would not
only incentivize research & development
but also ensure the access to the generic
life saving drugs for the common public
as after the expiry of the term of 20 years,
they will have access to the original prod-
uct or the generic compound. Not only
these changes will neutralize the negative
apprehensions of the multinational com-
panies but also will facilitate the access
to the cheaper generic medicines for
the masses. Increasing the term of the
patents of addition by making amend-
ment to section 55 of the Patents Act,
1970 will resolve the ongoing conflict
between the access and protection and
help India maintain the FDI as well. The
changes proposed are already within
the ambit and scope of Trips and it is
the right time for India to make such
modifications.
 N. J. Comp. Law Vol. 5 (2) 2018 pp. 37-42 ISSN : 2393 - 9338

DEVELOPMENT INDUCED DISPLACEMENT

AND RESETTLEMENT LAW IN INDIA:
An Analysis About It
Sudipta Patra

Assistant Professor of Law,

Midnapore Law College, Vidyasagar University, Midnapore-721102, (W.B.)

Email : patra.sudipta84@gmail.com

ABSTRACT

Infrastructural development projects frequently result in the displacement of people

from homes giving way to dams, highways, bridges or other large-scale construction
projects. The displacement is a multidimensional phenomenon, not confined only to
physical relocation. It reduces the "quality of life" of human beings into sub-human
conditions. Compulsory land acquisition and involuntary displacement of communi-
ties for a larger public purpose creates the tension of problems relating to develop-
ment-induced displacement and resettlement in the modern states. In India, informal
estimates of involuntary resettlement are estimated to be around 50 million people
over the last five decades, and among them three-fourths of those displaced still face
an uncertain future. Growing public concern over the long-term consequences of this
has led to greater scrutiny of the rehabilitation and resettlement process, particularly
for the matters relating to large development projects. So we can say that our Gov-
ernment must make proper acquisition procedures and must make proper norms for
rehabilitation and resettlement of displaced population.

Key Words : Infrastructural Development Projects, Displacement of People, Rehabilita-

tion policies and Resettlement, Era of Globalization, Economic Development, Forced Mi-
gration, Hydroelectric Power, National Commission for Women (NCW), Overseas Devel-
opment Institute.

PAGE : 10 REFERENCES : 08

I NTRO DU C TION lage communities to well-developed

In the era of globalization for the pur-
poses of economic development the
force is given to the communities and
individuals by the Development-in-
duced displacement and resettlement
(DIDR) to go out of their homes and of-
ten also to go out of their homelands. It
can be said that it is one kind of forced
migration. From tribal people and vil-
urban areas if we go through the his-
torical survey Development-induced
displacement is a social problem which
is affecting multiple levels of human or-
ganization through many activities like
the construction of dams for hydroelec-
tric power; for the purposes of irriga-
tion, mining; for the creation of weapon
testing grounds, road developments,

• 37 •
 N. J. Comp. Law Vol. 5 (2) 2018 pp. 37-42
airports, conservation projects, indus-
trial plants, urbanization, military instal-
lations, forestry, railways etc.
In recent times countries move from
developing to developed nations. The
result of it is that more and more peo-
ple are gradually affected by the Devel-
opment-induced displacement or the
forced migration in the name of devel-
opment. The people who are the victims
of such migration are often found them-
selves helpless. The power and laws of
nations have always suppressed them.
According to the opinion of Anthony Oli-
ver-Smith (2009) and Michael M. Cernea
(2006) the current scale of DIDR which
they are estimating amounts to 15 mil-
lion people per year. 1 Due to the opera-
tion of big development projects, Bogu-
mil Terminski (2012) is of opinion that
approximately fifteen million people are
forced to leave their homes each year. 2
They are often only compensated mon-
etarily due to the lack of rehabilitation
policies for migrants. Even they do not
find proper mechanisms for addressing
their grievances to the proper author-
ity. In most of the cases they also do
not get any political support to improve
their livelihoods.
There are several examples of active
resistance movements against devel-
opment-induced displacement. But in
spite of that we often find that the Dis-
placed people are suffering from a feel-
ing of helplessness and powerlessness
when they face a grave encounter with
1. M.M. Cernea, "Development-induced and conflict-induced IDPs: bridging the research divide", Forced Migration Review, Special Issue
(December): 25-27, 2006; A. Oliver-Smith (ed.), Development & Dispossession: The Crisis of Forced Displacement and Resettlement
(School for Advanced Research Advanced Seminar), 2009.
2. B. Terminski, Environmentally-Induced Displacement. Theoretical Frameworks and Current Challenges, Liege, 2012.
3. Bogumil Terminski, Oil-induced displacement and resettlement. Social problem and human rights issue, Simon Fraser University, March
2012.
4. "Crisis in Kenya: land,displacement and the search for ‘durable solutions’ ”. "Overseas Development Institute’’ April 2008.
• 38 •
ISSN : 2393 - 9338
the powerful external world. Among
marginalized groups, in every category,
we find that the women are the worst
sufferer and are paying the highest
price in the name of the development.
The violence against women is in-
creased day by day. A study carried out
by the National Commission for Wom-
en in India (NCW) finds that the impact
of displacement on women is one of
the important reasons for it. Alcoholism
is one of the important reasons for do-
mestic violence in India. This practice
of alcoholism is increasing day by day. It
is found from so many survey reports that
due to the displacement this practice of
alcoholism is increasing day by day.
The displacement has helped in the
growth of street gangs. Today these
gangs are committing crimes like arson
for profit, murder for hire, selling of drugs
etc. The helpless and insecure condi-
tion of the women and children due to
the displacement has compelled them
to become scapegoats. The health con-
dition is deteriorating and the mortality
rates are also deteriorating due to the
displacement. The nutrition and health
of women, which is worse than that of
men even under normal circumstances,
is bound to go down in the event of an
overall worsening in health caused by
displacement. 3
The victims of forced economic dis-
placement are sometimes getting sup-
port and help from Humanitarian aid
agencies, to ensure their work but the
result is not always fruitful and not any
 N. J. Comp. Law Vol. 5 (2) 2018 pp. 37-42
satisfactory ways are also coming out
through these efforts. We find that in
most of the cases the Humanitarian aid
agencies do not become able to solve
the conflicts and problems of the vic-
tims. The Overseas Development Insti-
tute advocates the search for durable
solutions to the recovery of displaced
persons which go beyond short-term
return, relocation and local integration
processes. 4
Development induced displacement,
apart from other conventional causes
has emerged as a major factor of hu-
man displacement in India. The farmers
and the tribal people are specially the
victims of it. Though the several innova-
tive judgments are delivered by the Su-
preme Court of India with respect to de-
velopment induced displacement and
resettlement but the problems relating
to it are seldom solved. For displaced
persons, the state and the corporate
sectors are not taking any proper and
positive initiatives as regards the for-
mulation of a sound rehabilitation and
resettlement policy for them. Corpo-
rate social responsibility is in the mod-
ern times, considered as an alternative
model for resettlement of displaced
persons. But, in spite of this attempt as
there is no uniform legal guidelines this
alternative has failed to gain any proper
success till now. Unless the state re-
structures its legal framework and un-
less the ethical practices and national
commitment of the corporate sectors
are changed the perspective of devel-
opment induced displacement and re-
5. https://dlc.dlib.indiana.edu/dlc/bitstream/handle/10535/8833/Bogumil%20Terminski,%20development-Induced%20Displacement%20
and%20Resettlement.%20Theoretical%20frameworks%20and%20current%20challenges.pdf
6. https://dlc.dlib.indiana.edu/dlc/bitstream/handle/10535/8833/Bogumil%20Terminski,%20development-Induced%20Displacement%20
and%20Resettlement.%20Theoretical%20frameworks%20and%20current%20challenges.pdf
• 39 •
ISSN : 2393 - 9338
settlement policy will not change.
According to the most common under-
standing of the term, conflict-induced
displacement refers to people who are
forced to leave their habitual place of
residence as a result of current escala-
tion of internal violence. 5 Such a nar-
row understanding of the problem is
therefore similar to the overall mean-
ing of the term "internally displaced
persons" (IDPs), as encountered in the
text of many international instruments.
Also, in the ordinary sense of the term,
internally displaced people are mainly
associated with victims of internal vio-
lence who are forced to move to anoth-
er place. Contrary to general opinion,
escalation of internal violence is by no
means the largest quantitative cause
of internal displacement. It is estimated
that the current population of conflict-
induced displaced people comprises
more than 20 million people worldwide.
But the annual growth rate in the num-
ber of people forced to leave their plac-
es of residence as a result of current in-
ternal conflicts amounts to only a few
million people. According to IDMC es-
timations, over 3.5 million people were
newly displaced by conflicts in 2011,
which is a few times less than even an
underrated number of persons tem-
porarily uprooted by natural disasters,
or permanently resettled by develop-
ment projects, within the same period
of time. The vast majority of the popula-
tion of conflict-induced displaced peo-
ple is thus of longtime character. It can
 N. J. Comp. Law Vol. 5 (2) 2018 pp. 37-42
be seen that the escalation of internal
violence is a much slighter cause of
displacement than the consequences
of economic development (approxi-
mately 15 million people displaced by
development projects per year). How-
ever, let us remember that the term
"conflict-induced displacement
ple" may also refer to a much broader
population than only those individuals
forced to leave their homes following
internal armed conflicts. The most fun-
damental cause of displacement is the
presence of dynamic conflict among
several categories of actors within a
static and limited territory. The desire to
take control over a certain territory and
its resources becomes a cause of con-
flict which forces its residents to leave
their current homes. Each of the already
mentioned causes of displacement in-
volves certain antagonisms. The kind
most visible and easy to analyze are
displacements associated with conflict
over resources or antagonisms based
on ethnic background. In the case of
development-induced displacement or
conservation-induced displacement,
territory becomes an arena of specific
conflicts between the interests of the
public or private sector and the needs
of people displaced or affected by par-
ticular development decisions. Devel-
opment-caused displacement is often
associated with conflict over resources
which has led to landlessness and con-
sequent problems (joblessness, home-
lessness, food insecurity, and
disarticulation). Displacement is
marily a phenomenon associated with
the loss of land, which is a fundamen-
tal point of economic, social and cul-
7. Michael Cernea, “Why Economic Analysis is Essential to Resettlement: A Sociologist’s View” in Michael Cernea (ed.), The Economics
of Involuntary Resettlement: Questions and Challenges (Washington, DC: World Bank 1999).
ISSN : 2393 - 9338
tural reference. In each of these cases
the largest single cost of the conflict is
paid by affected individuals and com-
munities, who in many cases are not
even the subject of the dispute leading
to their displacement. People forced to
leave their place of current residence
peo- are not always the active subject of the
processes leading to their displace-
ment. The civilian population may be
merely a passive observer and victim of
internal conflicts which lead to deporta-
tion. A similar situation can be observed
in the category of displacement caused
by development projects. In countries
with an authoritarian form of govern-
ment, such decisions rarely take into
account the interests of the people liv-
ing in the project’s immediate vicinity.
Due to their limited political participa-
tion, lack of social consultation prior to
investment, and legal discrimination,
they are rarely involved in decisions af-
fecting their future. 6
THEORETICAL MODELS
OF DISPLACEMENT
To study DIDR different theoretical mod-
els have been found out. According to
Scudder and Colson there are four-stage
model such as recruitment, transition,
potential development, and handing over
or incorporation to study the response of
the displaced persons and socio-cultural
systems to resettlement. At first, the mod-
el was formulated to explain the stages
of voluntary settlement, and later it was
social applied to some cases of involuntary re-
pri- settlement. In the 1980s and 1990s, there
were so many evidences of involuntary
resettlement schemes which failed to
pass through these four stages. So it
• 40 •
 N. J. Comp. Law Vol. 5 (2) 2018 pp. 37-42
was decided that a new model was nec-
essary to explain the consequences of
involuntary relocation. Particularly in the
matters of forced resettlement it was de-
cided that a new theory was necessary
to model what was increasingly seen as
predictable impoverishment. In the 1990s
Cernea advanced impoverishment risks
and reconstruction (IRR) model. Cernea7
identified inter alia eight interlinked po-
tential risks intrinsic to displacement that
includes i) landlessness; ii) joblessness;
iii) homelessness; iv) marginalization; v)
food insecurity; vi)increased morbidity
and mortality; vii) loss of access to com-
mon property; viii) social disintegration.
Development Displacement and
Environment8
The long run adverse impacts on the
natural resources are ignored for achiev-
ing the so called "greater common good"
or "the national interest". Various devel-
opmental projects are found responsi-
ble for the destruction of entire environ-
ments, including flora, fauna, landscapes,
river systems, water quality, and shore-
lines as well as the creation of mercury
contamination, greenhouse gases. The
large scale deforestation due to mining
and establishment of industries has re-
sulted in climate change and inconsist-
ent weathers. The pollution (air, water,
soil and noise) caused by the industries
accentuate the miseries of the present
generations as well as the generations to
come. No wonder that the environmen-
tal impact assessment of most of the big
and mega projects reveal that such hyped
8. http://www.manupatrafast.com/articles/PopOpenArticle.aspx?ID=d03848b7-dff9-4b57-b7c8-c7e7a4df797f&txtsearch=Subject:%20
Property
9. Tham, Carl Poverty, environment and development., in Üner Kirdar (ed.), Change: Threat or Opportunity for Human Progress? Volume
V, Ecological Change, UNDP, New York, 1992
10. UN General Assembly, 1996, Declaration on the Right to Development (A/RES/41/128).
11. Kothari, Miloon and Kothari, Ashish, "Displaced People: Forced Evictions and Human Rights," Frontline, (May 21, 1993).
12. Olga Tellis and Ors vs. Bombay Municipal Corporation and Ors 1986 AIR 180, 1985 SCR Supl. (2) 51
• 41 •
ISSN : 2393 - 9338
and appreciated mega ventures are nothing
but surviving at human and environmen-
tal costs.9 It is high time we realize the
need of transforming our developmental
policies to answer the larger human and
environmental requirements until it be-
comes too late. We must remember that
we have only one earth to live.
Human Rights Challenges that
arise in relation to Develop-
ment-Induced Displacement
There is no doubt about the developmen-
tal benefits of any planned project, but
we find that sometimes these cannot be
done except violating the human rights
of so many people. In 1986, the UN Gen-
eral Assembly adopted a Declaration on
the Right to Development.10 The heart of
the problem is that people displaced by
development projects are generally seen
as a necessary sacrifice on the road to
development and their Human rights and
other rights are violated in so many ways.
Indeed, in a number of cases, not only
socio-economic rights such as the right
to housing that are at stake but a number
of civil and political rights, from the right
to be informed about the displacement
procedures to the freedom of expression,
may be violated if the government tries
to coerce people to move out from their
homes.11 In Indian context, The Supreme
Court in Olga Tellis case12 envisaged
right to livelihood under the aegis of Ar-
ticle 21 and condemned the unjustifiable
displacement of people from their land.
Right to life doesn't mean merely animal
existence but living with human dignity
 N. J. Comp. Law Vol. 5 (2) 2018 pp. 37-42
and all that goes along with it like right to
shelter. 13
CONCLUSION AND
GESTION
Development projects often involve the in-
troduction of direct control by a developer
over land previously occupied by another
group. Natural resource extraction, urban
renewal or development programs, in-
dustrial parks, and infrastructure projects
all require land, often in large quantity.
One common consequence of such pro-
jects is the upheaval and displacement of
communities. In much of the DIDR (devel-
opment-induced displacement and reset-
tlement) literature, scholars and activists
consider development displaces to be
those persons who are forced to move as
a result of losing their homes to develop-
ment projects. 14
We have to give focus on
the matter relating to the tension between
the right to development, on the one
hand, and the resulting risks to human
security and their human rights, on the
other hand. The founding fathers of the
13. Article 11 of the ICESCR, recognize the right of everyone to an adequate standard of living for himself and his family, including adequate
food, clothing and housing.
14. http://www.forcedmigration.org/research-resources/expert-guides/development-induced-displacement-and-resettlement/fmo022.pdf
ISSN : 2393 - 9338
Constitution under Article 39, imposed a
mandate on the state towards distribution
SUG- of resources so as to sub serve common
good. However, the law which has been
consistently invoked for land acquisition
is a pre-constitutional law dated 1894
with 'compensation' as the only remedy
for the persons affected by such acquisi-
tions and it is not telling about any proper
provisions for rehabilitation and resettle-
ment for those affected persons. There
are various international policy guidelines
and mechanisms, designed to safeguard
those who are internally displaced as a
result of development projects. To find
out a salvation for the problems relating
to development-induced displacement
and resettlement, we can suggest that a
comprehensive National Policy on Reha-
bilitation and Resettlement (NPRR) of dis-
placed population be framed replacing
the anomalies of NPRR, 2007. We hope
that our Government must take proper
and important steps to solve this problem
as quick as possible.
ööööööö
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 N. J. Comp. Law Vol. 5 (2) 2018 pp. 43-52 ISSN : 2393 - 9338

YASH GHAI ON CULTURAL RELATIVISM

Ajay Kumar Singh
Assisstant Professor, Deptt. of Law,
K.S. Saket P.G. College, Ayodhya

Email : ajayksinghlaw@gmail.com

ABSTRACT

Todays’ societies are multiethnic and multicultural. It means there are various cul-
tures are flourishing in a society because of myriad reasons, for instance: migration
from one place to another. This is the reason why the controversy between uni-
versalist and cultural relativist is intensified day by day. Universalists are claiming
that human rights are global language. They are the standards which a State must
ensure. The “universality” of human right is a normative claim about the proper way
to organize social and political relations in the contemporary world. All societies
have the concept regarding personal dignity, equality”1. For instance: We are well
acquainted with the this human rights norms:” All are equal before the law and are
entitled without any discrimination to equal protection of the law”.2 Human rights
define the necessity of a legitimate government as its focus on the relation between
subjects and rulers.

Key Words : cultural relativist, Human Rights For Multicultural States,

PAGE : 17 REFERENCES : 25

INTRO D U C TION and the ASEAN-EU meeting in Bangkok

The universalists, generally, rely on the In- in March 1996.” 3

ternational Bill of Rights incorporating the

Universal Declaration of Human Rights'
and the International Human Rights Cov-
enants, and states that the rights which
are enshrined in these international trea-
ties are so fundamental as they are uni-
versal to human kind.” In more recent
times some Asian government leaders
have eagerly adopted the cultural relativ-
ism theory, and have voiced their opposi-
tion to the universality of human rights at
recent forums such as the World Confer-
ence on Human Rights in Vienna in 1993
While on the other hand, cultural relativ-
ists opine that culture is the part and par-
cel of individual ,one cannot separate an
individual from culture. These are the im-
portant aspect as human rights depend
upon the culture. “Culture is a term on
everyone’s lips’ people rarely talk about
what they mean by it. The term has many
meanings in the contemporary world. It is
often seen as the basis of national, eth-
nic or religious identities. Culture is some-
times romantized as the opposite of glo-

1. Gopal Bhargava,Meaning And Sources of Human Rights, p.15(Kalpaz Publications, Delhi, 2003).
2. Article 7 of Universal Declaration Of Human Rights, 1948.
3. Annette Marfording, “Cultural Relativism and the Construction of Culture: An Examination of Japan”, Human
Rights Quarterly, at p. 431, 1997.

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 N. J. Comp. Law Vol. 5 (2) 2018 pp. 43-52 ISSN : 2393 - 9338

balization. In international human rights culture not by exerting external pressure.

meetings, culture often refers to traditions
and customs: ways of doing things that
are justified by their roots in the past.”
The definition of culture most often quot-
ed is that of Tyler: "Culture is that complex
whole which includes knowledge, belief,
art, morals, law, custom, and any other
capabilities and habits acquired by man
as a member of society. 5
He asserted the importance of dialogue
by stating that they are imperative as by
4
doing this, we can avoid any overlapping
consensus on human rights and thereby,
we can achieve the necessary conditions
for peaceful coexistence, but acceptance
of the legitimacy of human rights stand-
ards requires internal cultural support.

Jack Donnelly, is known for carving out

Abduliahi An-Na'im is a strong support-
er of the international regime of human
rights. His approach "is based on the
belief that, despite their apparent pecu-
liarities and diversity, human beings and
societies share certain fundamental in-
terests, concerns, qualities, traits and val-
ues that can be identified and articulated
as the framework for a common 'culture'
of universal human rights. Human rights
are not universal merely because they
are posited in international law rather,
the rights are recognized by the docu-
ments because they are universal hu-
man rights." 6
In considering the debate
about universalism and cultural relativ-
ism in respect of human rights, he em-
phasized on the problems of persuasion
and effectiveness which can arise due to
cultural diversity and pluralism of beliefs.
Further, he suggested that cultural legiti-
macy of human rights ideals could only
be achieved by internal dialogue within a
an expression “Relative Universality”,
which includes a term of cultural relativ-
ism and a term of universalism. The two
extreme positions on cultural relativism
can be called ‘radical cultural relativism’
and ‘radical universalism’. Radical cul-
ture relativism would hold that culture is
the sole source of the validity of a moral
rule and right. Radical universalism would
hold that culture is irrelevant to the validity
of moral rights and rules, which are uni-
versally valid.” 7
He has concluded by giv-
ing a way of reconciliation to sort out this
debate which is still going on.
This paper basically, deals with the views
of ‘Yash Ghai on Cultural Relativism’: Yash
Ghai8 : An opponents of universalism, we
can say him a relativists. He admits that
the rights are drawn from human na-
ture, but assert that human nature is not
a philosophical concept, it is not purely a
theory, not a merely an idea , a thought,

4. Henry J. Steiner, Philipet. al., International Human Rights In Context Law, Politics, Morals, p. 517 (Oxford University
Press, New York, 3rd edition, 2007).
5. William Fielding Ogburn, “Culture And Sociology”, Social Forces, Vol. 16, No. 2, Dec. 1937.
6. William Twining,”Human Rights : Southern Voices: Francis Deng, Abduliahi An-Na'im,Yash Ghai and Upendra
Baxi”, Review of Constitutional Study, Vol. 11, No. 2, 2005-2006.
7. Jack Donnelly,“Cultural Relativism and Universalism Human Rights” Human Rights Quarterly, Vol. 6, No. 4 (1984).
8. Yash Pal Ghai was born in Kenya in 1938. He is still a Kenyan citizen. He started teaching law as a lecturer in Dar-
es-Salaam in 1963, eventually becoming professor and dean, before leaving in 1971. Since then he has held academic
posts at Yale, Warwick, and Hong Kong. In addition to numerous visiting appointments, he was research director of
the International Legal Center in New York in 1972-1973 and a research fellow at Uppsala University from 1973 to
1978. He has written or edited nearl y twenty books, mainly about public law and constitutionalism in Commonwealth
countries.Ghai is highly respected as a scholar, but he is even better known as a legal adviser to governments and
agencies, especially in the South Pacific and East Africa Ghai has unrivalled experience of constitution making in
postcolonial states.

• 44 •
 N. J. Comp. Law Vol. 5 (2) 2018 pp. 43-52
concept, rather it’s a real one as humans
are a part of society who are having a
common tastes and preferences, com-
mon thought, common perception com-
mon culture as well. He commented that
one cannot separate a human being from
the society. They are the integral part of
the society. Since societies vary from cul-
ture to culture, assessments are made
on their cultural background in which
they born and brought up, they cannot
be judged on the basis of the external
ground. In a symposium published in the
Cardozo Law Review (February 2000), Ci-
tation: 21 Cardozo L. Rev. 1095 1999-2000,
Ghai drew on his experiences of consti-
tution-making to make what is perhaps
his fullest statement of a general position
on human rights. His central thesis is that
both of these debates often obscure the
political realties and the potential practi-
cal uses of human rights discourse as a
flexible framework for negotiating accept-
able compromises between conflicting
interests and groups. He stated that there
are many reasons for the revival of this
controversy. One of the most important
is that the rights discourse has achieved
and the reaction to it. He further intro-
duced some notions which are the foun-
dation of the concept of the universality
of human rights which are: (a) there is a
universal human nature; (b) this human
nature is knowable; (c) it is knowable by
reason; and (d) human nature is essen-
tially different from other reality.”
ther raised a point that it is often said, in
this debate that “universalists” are west-
erners and “relativists” are easterners. It is
also assumed that the UDHR represents
Western concepts of the individual and
9. Yash Ghai, “Universalism And Relativism: Human Rights as a Framework For Negotiating Interethnic Claims”, 21
Cardozo Law Review, at p. 1095, 1999-2000.
10. Ibid, at p. 1096.
11. Id, at p. 1098.
ISSN : 2393 - 9338
his or her rights. However, many eastern-
ers argue that their cultural and religious
texts contain ideas of justice, equality,
and fairness, which are the foundations of
rights. They compare rights in the UDHR
with the values of their own cultures and
religion, and thereby support the notion of
universalism.”10 Relativist attitude are not
based only on culture, although this is the
most common source of relativism rather
they talked about duties as well which
are a better way to fortify the objectives
sought by rights; they are less adversarial
and help in the cultivation of virtue. He
commented that “Human rights are not
desirable, as they elevate the individual
above the community, and can damage
the fabric and cohesion of society. The
moderate cultural relativist position is that
some human rights standards are univer-
sal and must be respected by all. There
is an overlapping of values which can be
used to establish a common core of hu-
man rights.”11 Some commentators like
Francis Deng, Abduliahi An-Na'im sug-
gested the way of reconciliation of con-
science with love of tradition. They give
importance to the culture as they opine
although there are some essential inter-
national standards for human rights, but
cultures will have various ways of under-
standing them. If the people of the culture
gives validity to these standards, they will
do it by reinterpreting texts within that cul-
ture. Proponents of intercultural discourse
9
He fur- have a concurrence on the preceding
view. They argue that all cultures have
valuable norms and vision. They suggest-
ed that by acknowledging this, and by
seeking intercultural understanding, we
can enrich the concept of rights and strive
• 45 •
 N. J. Comp. Law Vol. 5 (2) 2018 pp. 43-52
towards a new form of universalism. Ghai
further stated that, “Just as the mixing of
cultures has enriched cultures, so varia-
tions in contexts and concepts of rights
can be enriching.” 12
In his paper 13
, he discussed how a mul-
ticultural society organizes the protection
of human rights by examining debates
about the provisions on and (to a lesser
extent) the practice of rights in four coun-
tries-India, Canada, South Africa, and Fiji.
These countries not only represent dif-
ferent cultural and religious traditions,
but also share the common experience
of struggling to manage conflicts arising
from their ethnic and religious diversity.
He has given following propositions with
reference to the nature of rights, to the
nature of culture, and to the relationship
between the two concepts:
PROPOSITIONS
1. It is not necessary that right emerges
from culture. There are many societies
in which repression, dictatorial or you
can say, tyranny regime is prevailing
in the name of culture and tradition.
Rights are valuable as there are myr-
iad rights discourses which, primarily,
cross- examined these types of culture
by giving powerful ideas, for instance :
equality, feminism, social justice. Most
cultures have some belief, thoughts of
rights while, in some, rights are em-
bodied in a hidden manner and when
circumstances change they emerge.
2. “Even more fundamentally, the con-
cept Culture is protean: it is usually
connected with religion, language,
12. Id, at p. 1099.
13. Id, at p. 1099.
14. Id, at p. 1100.
15. Iibd.
• 46 •
ISSN : 2393 - 9338
history, folklore, values, dress, cuisine,
and, more broadly, the way people live.
Which of these is privileged at a par-
ticular moment, as the crucial mani-
festation of "culture," is more a matter
of political choice than the inherent
value of the identity of a community.
States have always claimed the right
to elaborate the culture of their com-
munities; the current debate is essen-
tially between states advancing differ-
ent views of culture for reasons only
tangentially connected with culture.” 14
3. “No community has a static culture,
especially today when each commu-
nity is confronted with a multiplicity of
images, and exposure to others' ways
of life. Rights consciousness, it affects
culture; knowledge of other cultures or
moral ideas may make an individual
aware of his or her inferior status in so-
ciety”.
4. Due to intermixing of culture and vari-
ations in culture in different nations,
sometimes, create a manipulation that
one culture is dominating that others.
5. “There is no homogeneity of culture in
a state. Considerable state effort is ex-
pended in creating a common culture,
even (or perhaps especially) in a state
whose leaders pose as champions of
relativism. There is, for example, the
culture of: the military; bureaucrats;
academics; professionals; diplomats;
trade unionists; and business peo-
ple. Each has different interests in
"rights."Individual or group perception
of rights depends on one's economic
or social class in society. It is more im-
portant to pay attention to the scope
and politics of "rights" than top precon-
 N. J. Comp. Law Vol. 5 (2) 2018 pp. 43-52
ceptions of their cultural lineages.”15
6. He propounded that the material bas-
es of "rights" are stronger than cul-
tural bases. The concept of rights is
flexible in nature, they have moulded
themselves according to the circum-
stances of the society. But, if we see
Historically, rights have been
subversive and conservative in nature
as well. Different political systems use
different ideologies of rights as a re-
sult, their goals are different indifferent
societies. The dissimilar attitude or na-
ture of rights makes the argument of
the cultural relativism more complex. It
is also possible to periodize phases in
the rights movement which owe more
to global material factors than by the
force of culture.
7. “Rights are primarily a matter that
arises between state and
They originate in response to the de-
velopment of market economies and
the centralization of states. They are
less cultural than "political," are con-
sidered necessary whenever political
power separates itself from the com-
munity, and therefore are particularly
necessary in many Asian and African
countries where states, however weak
internationally, tend to dominate their
civil societies.” 16
8. He stated that culture is in peril, the
danger from the rights are magnify-
ing rapidly. Culture which is defined
in the debate is, basically, a matter of
interpersonal or intra family relations.
There is no reference of rights as well.
Rights are not mentioned in the ambit
of culture.
9. “There is little doubt that forcing di-
16. Ibid.
17. Id, at p. 1101.
18. Ibid.
19. Ibid.
ISSN : 2393 - 9338
verse communities to live together
has sharpened the debate about rela-
tivism, especially in the post-colonial
period. The key moral question of our
time is the basis on which diverse peo-
ples can coexist and interact. More
specifically, the question is whether
both in this multicultural world a particular
view or belief can be regarded as the
overriding international consensus on
rights and values. I believe that a re-
gime of rights, because of its inherent
diversity, is a suitable foundation for
intercultural dialogues and consen-
sus.”17
10. Now a day, there are a lot of rights He
commented that the most of the con-
troversy on relativism is with reference
to of civil and political rights, which are
supposed to have their origins in West-
citizens. ern philosophy. This perspective cohe-
sively disregards the fact that rights are
no longer tied to one dominant.”Rights
are justified on differing bases-from
"natural law," or nature of the human
person, to more material explanations.
The concept of rights is much more
diverse today, in response to differ-
ent economic or social traditions and
emerging needs. In particular, there is
wide acceptance of social, economic,
and cultural rights. There is great con-
cern (at least at the level of rhetoric)
with the disadvantages or oppression
of particular classes of persons: wom-
en, children, and indigenous peoples.
This has, to some extent, shifted the fo-
cus away from individuals and has fa-
cilitated the recognition of group rights
and remedies. It has also focused at-
tention on the material conditions
• 47 •
 N. J. Comp. Law Vol. 5 (2) 2018 pp. 43-52
and civil society as causes of oppres-
sion, balancing the obsession with the
wickedness of the state.” 18
11. “These enriching developments in the
menu of rights have prompted the
need for tradeoffs between different
categories of rights. The diversity also
facilitates the "contextualization"
rights and allows a balance between
different values and goals.”
12. He asserted that the perception of
anthropologists or philosophers and
lawyers regarding the notion of rights
in a different form is entirely distinct.
On one side, Anthropologists consid-
er rights more absolute, interperson-
al, and more comprehensive in their
range while on the other side, Lawyers
are less committed to absolutes and
they try to make a fulcrum.”They oper-
ate under some form of the doctrine
of margin of appreciation, permitting
qualifications of rights. The grounds
for qualifications are drawn from no-
tions of proper conduct embedded in
culture. The doctrine leads to the new
orthodox view that to accept univer-
sality does not mean that each culture
has to understand a right in precisely
the same way or accept
range of rights.” 20
13. “For multicultural states, human rights
as a negotiated understanding of the
acceptable framework for coexistence
and the respect for each culture are
more important than for monocultural
or mono-ethnic societies, where oth-
er forms of solidarity and identity can
be invoked to minimize or cope with
conflicts. In other words, it is precisely
where the concept and conceptions
of rights are most difficult that they are
20. Id, at p. 1102.
21. Ibid.
ISSN : 2393 - 9338
most needed. The task is difficult, but
possible, even if it may not be always
completely successful. And most states
today in fact aremulticultural, whether
as a result of immigration or because their
peoples are finding new identities. 21
of He criticized many of the assumptions
which constituted the controversy, and
19
argued for a more pragmatic and prac-
tical approach. He applied an empirical
method to go beyond in this debate on
universalism and relativism, in which he
discussed how a multicultural society
assembles the protection of human rights
by examining how provisions came into
existence in that society. He emphasized
that the human rights discourse has act-
ed as a moderator between competing
ethnic and cultural claims, and provide a
useful framework as well in combating
dictatorial government ‘s rule due to its
variable in nature and, the international
human rights regime has played an im-
perative role in domestic constitutive
processes and constitutional law of any
nation. To justify this statement, he basi-
cally, grappled with four countries - India,
Canada, South Africa, and Fiji, which are
the whole multicultural societies and they have the
common experience of resolving the con-
flicts which arises from their ethnic and re-
ligious diversity. He conducted a study of
these above mentioned nations to reach
the conclusion.
“He found that the relevance of rights was
extensively acknowledged in construct-
ing a state in all countries, apart from
them, he also discovered that the content
and orientation of rights was drawn from
foreign precedents and international dis-
• 48 •
 N. J. Comp. Law Vol. 5 (2) 2018 pp. 43-52
course, it means they were derived from
external sources for eg: in India's case,
from foreign national Precedents, but in
other instances from international instru-
ments sources.” 22
MAIN OBSERVATIONS:
Ghai uses these four case studies to settle
down some observations:
First, he challenges the assumption that
culture plays a consequential role in de-
termining attitudes to rights. It is an es-
sential element. He cohesively clarifies
this argument by citing instances : Culture
is relevant, it plays an imperative role, but,
it acts in a complex ways Culture is not
rigid rather it is variable in nature ,one can
say, it is protean or flexible. Every
munity has different culture which ,usu-
ally, vary and intermix from time to time.
In this contemporary world, if anyone find
homogeneity of culture within a commu-
nity would be an exceptional and ,one
can say if there is a common culture, a
uniform culture, it means state is focus-
ing upon the unity of the nation so that
any conflict will not arise in context of
culture. Perhaps, most important, Ghai
emphasizes that ‘the material bases of
‘rights’ are stronger than cultural.’ He fur-
ther explained that “Culture has nowhere
been a salient element determining atti-
tude to rights. It has been important in Fiji,
Canada, and South Africa, but it has been
important in different ways. In Fiji, on the
other hand, rights were presented as
antithetical to underlying values of indig-
enous social and political organizations.
"Culture" itself, as already indicated, was
very broadly defined Demands by South
African traditional leaders and the Inkatha
22. Id, at p. 1137.
23. Id, at p. 1135.
ISSN : 2393 - 9338
Freedom Party were based on culture; the
ability of the latter to derail the transition
to democracy gave its demands an im-
portance that otherwise seemed to have
had little support.” 23
Second, Ghai cleared this myth also that
those who endorse the concept of univer-
salism are westerner and those who are
in favor of cultural relativism are easterner
advocate for universalism are westerners,
and those who oppose it are easterners.
He asserts some instances regarding this
argument He stated that it was the British
who resisted a bill of rights in India; while
at that time, nationalist leaders were the
strong proponents of human rights but,
com- did not survive after independence .In
south Africa, it was the whites who were
opponent of the concept of universality,
thereafter, we can say, after apartheid,
blacks became proponent of the univer-
sal regime Both of them were supporters
of relativism of rights-one for whites and
another for coloreds. The most powerful
resistance to the Charter has come from
the French Canadians. While, In Fiji, it was
the dominant majority within the Methodist
Church who most vigorously opposed the
regime of rights. From these instances, he
has justified his claim in a positive sense
that the western are the proponent of uni-
versalism and the easterner are the oppo-
nent one..It was the British who resisted a
bill of rights in India; it was the whites who
set up one of the most repressive regimes
of this century in South Africa. Both of them
believed in relativism of rights one for whites
and another for coloreds.
Third, He strictly challenges the use of
• 49 •
 N. J. Comp. Law Vol. 5 (2) 2018 pp. 43-52
sharp dichotomies in this context for in-
stance: he identifies at least five types of
relativist positions that need to be distin-
guished: “ (i) strong cultural relativism– i.e.
that rights depend upon culture rather
than upon universal norms; (ii) that cul-
tural differences do indeed exist, but only
the Western concept of human rights is
acceptable as a basis for universal norms
(conversely, some Asian politicians ar-
gue that their societies are superior to the
West because their cultures emphasize
duty and harmony rather than individual
rights and conflict; (iii) moderate cultural
relativism – i.e., that a common core of
human rights can be extracted from over-
lapping values of different cultures; (iv)
that cultural pluralism can be harmonized
with international standards by largely
internal re-interpretation of cultural tradi-
tion– the basic approach of Abdullahi An-
Na’im; and (v) that an enriched version of
rights can be developed by intercultural
discourse, which can lead towards a new
form of universalism.” 24
After evaluating it, he comes to the con-
clusion that it is not easy to generalize.
It cannot be said that bills of rights have a
universalizing or homogenizing tendency,
because by recognizing languages and re-
ligions, and by affirmative policies a bill of
rights may in fact solidify separate identities.
Nevertheless, a measure of universalism of
rights may be necessary to transcend sec-
tional claims for national cohesion. Simple
polarities, universalism/particularism, sec-
ular/religious, tradition/modernity do not
explain the complexity; a large measure
of flexibility is necessary to accommodate
competing interests. Consequently, most
bills of rights are Janus-faced (looking to-
24. Supra note, 6 at p. 244.
25. Ibid, at p. 245.
• 50 •
ISSN : 2393 - 9338
wards both liberalism and collective iden-
tities). What is involved in these arrange-
ments is not an outright rejection of either
universalism or relativism; but rather an ac-
knowledgement of the importance of each,
and a search for a suitable balance, by em-
ploying, for the most part, the language and
parameters of rights.” 25
On the basis of these four case studies, backed
by his wide practical experience, he suggest-
ed some further general evaluations:
First, rights provide a framework not only
for cross-cultural discourse and negotia-
tion, but also it interrogate culture as well.
It can act as a check upon the culture in
those nations where public is affected ad-
versely in the name of culture. He stated
that women have used them to challenge
traditionalists in Canada, India, and South
Africa in various cases to attain justice.
Second, Nowadays, rights are multifac-
eted, they are serving various purposes.
They are not merely as a protections
against the state, but also, effective tool
for the distribution of resources, a basis
for identity, and a tool of hegemony, and
they offer a social vision of society. Fur-
ther, they are not necessarily deeply held
values, but rather a mode of discourse for
advancing and justifying claims. Third, in
multicultural societies, balancing of inter-
ests requires recognition of collective as
well as individual rights, including rights
connected with being a member of a
group, as with affirmative action in India.
Constitutional settlements in multiethnic
societies require the balancing of inter-
ests. This balancing is particularly impor-
tant if there are prior, existing disparities
of economic, social, or political resourc-
es, and particularly if these disparities are
 N. J. Comp. Law Vol. 5 (2) 2018 pp. 43-52
the result of state policies. Achieving this
balance has various implications for the
regime of rights. First, it requires the rec-
ognition of corporate identities as bear-
ers of rights (this issue, however, remains
deeply controversial, as does the scope
of the recognition). It is in that sense that
one can speak of collective rights. But we
also find individual rights which are con-
nected to being a member of a group.
Most rights of affirmative action in India
and, to a , Fiji may fall into this category.
Second, there cannot be, in relation to
most rights, a notion of the absolutism of
rights. Ethnic accommodations necessi-
tate qualifications on, or reconceptualiza-
tion of, rights, as with the right to equality.
This exercise of qualification or reconcep-
tualization forces the constitution makers
to try to understand and define the core
of the rights concerned, in order to estab-
lish the qualifications that may be made
consistent with maintaining these rights.
Third, the appropriate formulation and
protection of social, economic, and cul-
tural rights, especially the "positive duties"
of the state, is often fundamental to a set-
tlement, both as an acknowledgement of
the importance of culture and as a redress
of ethnic inequalities. This is perhaps less
so in Canada, where the Charter is more
oriented towards civil and political rights;
but there, too, problems associated with
the first nations are dealt with through re-
distributions. Thus, for this reason (and
other reasons of "ethnic" management),
the necessity for an activist state arises.
Fourth, since interethnic relations are so
crucial to an enduring settlement, and
past history may have been marked by
discrimination or exploitation, a substan-
tial part of the regime of rights has to be
made binding on private parties. Thus, we
• 51 •
ISSN : 2393 - 9338
see that a liberal regime of rights is modi-
fied significantly when adapted to the exi-
gencies of a multiethnic state, without los-
ing a fundamental commitment to rights
and freedoms. These aims of rights in a
multiethnic state are reflected in the juridical
methods for balancing: reliance on the limi-
tation clauses; directions as to the methods
of, and resources for, interpretation.
Fifth, where rights are used for balanc-
ing interests, there is no room for abso-
lutism of rights. They have to be qualified,
balanced against each other, or recon-
ceptualized. Sixth, a stable settlement in
a multi-ethnic society often involves rec-
ognition and appropriate formulation of
social, economic, and cultural rights. This
in turn requires an activist state. Seventh,
‘since interethnic relations are so crucial
to an enduring settlement, and past his-
tory may have been marked by discrimi-
nation or exploitation, a substantial part of
the regime of rights has to be made bind-
ing on private parties.’ Finally, the require-
ments of balancing conflicting interests
within a framework of rights give a major
role to the judiciary in interpreting, apply-
ing and reinterpreting the constitutional
settlement in a reasoned and principled
way. Language of rights and the juridical
techniques mentioned above is the in-
crease in the power and responsibility of
the judiciary for the settlement of claims
and disputes. It then falls ultimately to the
courts to do the balancing of interests
and rights, which is essential in applying
the human rights framework. They may
represent a different understanding of
the permissible limits of the balance, and
may come in conflict with determinations
by the legislature or the executive branch.
This was the Indian experience, in which
the courts took a different view from that
 N. J. Comp. Law Vol. 5 (2) 2018 pp. 43-52
of the other branches as to primacy of
property rights over social rights. On the
other hand, vesting the final authority in
courts means that close attention is paid
to the framework of rights, and that the
balancing between the core of the right
and its modification is done in a reasoned
and principled way. Furthermore,
prestige of the courts also helps to bring
the dispute to some resolution, although
the Indian experience in the Shah Bano
case suggests that judicial decisions can
themselves be a source of conflict. On the
broader question of universalism and rel-
ativism, it is difficult to generalize. It can-
not be said that bills of rights have a uni-
versalizing and homogenizing tendency,
because by recognizing languages and
religions, and by affirmative policies, a
bill of rights may in fact solidify separate
identities. Nevertheless, a measure of uni-
versalism of rights may be necessary to
transcend section a claims to maintain
national cohesion. Simple polarities such
as universalism/particularism, secular/re-
ligious, or tradition/modernity do not ex-
plain the complexity; a large measure of
flexibility is necessary to accommodate
competing interests. Consequently, most
bills of rights are Janus-faced (looking to-
wards both liberalism and collective iden-
tities). What is involved in these arrange-
ments is not an outright rejection of either
universalism or relativism, but rather an
acknowledgment of the importance of
each, and a search for a suitable balance
ööööööö
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ISSN : 2393 - 9338
by employing, for the most part, the lan-
guage and parameters of rights.
CONCLUSION
Yash Ghai has given a new dimension
to the debate of universalism and cul-
tural relativism. After having a study of
the propositions and generalisations made
by Yash Ghai it can be concluded that in
the contemporary world, there has to be
a balance struck between the concept
of Universalism and cultural relativism
as he rightly argues. Also, he has bro-
ken the myth of east-west debate on this
subject. Culture no doubt is material and
important, but it is not the sole basis for
determination of rights or making gener-
alisations. Culture is not constant and it
keeps on changing with time. In the pre-
sent day society where multi ethnic and
multicultural people co-exist a balance is
to be made.. Ghai is neither of the view
from out rightly rejecting universalism or
relativism. The trend is to include both
the concepts that is to acknowledge the
importance of both. The role of the ju-
diciary becomes all the more important
for such a balancing as has also been
acknowledged by Ghai in his article. The
judiciary is an institution which balances
both these concepts and the conflict-
ing interests with a more pragmatic ap-
proach. Thus, it can be said that neither
universalism nor relativism can exist in
isolation rather there has to be a blend of
both these concepts.
 N. J. Comp. Law Vol. 5 (2) 2018 pp. 43-52 ISSN : 2393 - 9338

LAWS RELATING TO CORPORATE

CRIMINAL LIABILITY IN INDIA
Shail Suta
Asstt. Professor, Deptt. of Law,
Dr. R.M.L. Avadh University Campus, Ayodhya

Email : trpathi.shailsuta2@gmail.com

ABSTRACT

This paper deals with the framework of corporate criminal liability and laws relating
to corporate criminal liability in India. Part I focuses upon the historical aspect of this
very concept i.e. corporate criminal liability while part II deals with the twin models
which are individual centric and corporation centric as well. Furthermore, this paper
outlines the system of corporate criminal liability in the United States and compares
it to the systems, which are prevailed in United Kingdom. Thereafter, Part IV deline-
ates the status of this concept in Indian system. Part V is the concluding remark of
the researcher. Corporations are integral part of our society. They exist, as important
actors in every aspect of our society, be it at national level or global level. Due to glo-
balization and privatization, the nature and form of a corporate sector has become
complex. Now, it has started to serve multi roles. The development of the society, at
various points of time, has had a direct influence on the structure and functions of
the corporation.

Key Words : Corporate Criminal Liability, Twin Models of Individual Centric And
Corporation Centric.

PAGE : 06 REFERENCES : 19

I NTRO DU C TION involving corporations are gradually

Primarily, “corporation is a group of hu-
man beings, authorized by law to act as
a legal unit, endowed for some purposes
with legal personality and has a seal of its
own.” 1
The corporations are run by nat-
ural persons and these peoples’ actions
can be criminal in nature and can some-
times even result in great economical as
well as human loss to the society. Crimi-
nal liability of corporations became the
most debatable issue in the 1990s. When
a number of crimes for instance : environ-
mental, bribery, frauds, financial crimes
spreading their tentacles in the society, the
need to create a judicial administration to
punish the wrongdoing of the corporations
was felt. If we look at the history of the evolu-
tion of this concept i.e. corporate criminal li-
ability, we will find the positive development
in this arena. At a preliminary level, there
was no liability against corporate during the
early sixteenth and seventeenth centuries.
How it has developed during these years
and what is the status of the corporate crim-
inal liability mainly in India, we will examine
all these aspects in this paper.

1. K.D.Gaur, “Criminal Law Cases and Materials”, (Butterworths, New Delhi, 3rd Ed., 1999).

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 N. J. Comp. Law Vol. 5 (2) 2018 pp. 53-58 ISSN : 2393 - 9338

CRIMINAL LAIBILITY means the liability imposed upon a cor-

The basic rule of criminal liability revolves
around the Latin maxim actus non facit reum
nisi mens sit rea. It means a person cannot
held liable unless two elements
sent: the actus reus (physical element)
and mens rea (guilty mind). Each element
of a crime that the prosecutor needs to
prove (beyond a reasonable doubt) is a
principle of criminal liability. Although this
is the general rule which is abovemen-
tioned and it is applicable to all criminal
cases but we have one exception in the
criminal law jurisprudence i.e. doctrine of
strict liability in which one may be held li-
able even in absence of any guilty state
of mind or we can say, one need not to
be prove the mens rea element. It usually
applies in cases of mass destructions
through pollution, gross negligence of the
company resulting in widespread damag-
es. Thus the element of mens rea is con-
sidered to be central or core of any crimi-
nal liability. An act cannot be considered
a crime unless it is done by a guilty mind.
The presence of these two elements of
actus reus and mens rea for every crime
has been brought into debate also in the
cases of crimes by the corporation. The
issue as regards corporations in this re-
spect is that whether the corporation can
have a guilty mind to commit a crime. In
this respect this element to be determined
becomes important. This issue has been
further dealt with in this paper in light of
the various judicial pronouncements.
HISTORICAL EVOLUTION
poration for any criminal act done by any
natural person. Liability is imposed to reg-
ulate the acts of a corporation. The princi-
2
are pre- ple of corporate criminal liability is based
3 on the doctrine of respondent superior,
which is commonly known as the theory
of vicarious liability, where the master is
made liable for the acts of his servant.
In the early 1700s, corporate criminal liabil-
ity was facing at least four obstacles, which
were enumerated by scholar V.S. Khanna
in his paper4, which are as follows:
The first obstacle was attributing acts to
a juristic fiction, the corporation. Eight-
eenth-century courts and legal thinkers
approached corporate liability with an ob-
sessive focus on theories of corporate per-
sonality; a more pragmatic approach was
not developed until the twentieth century.
The second obstacle was that legal thinkers
did not believe corporations could pos-
sess the moral blameworthiness, which
is necessary to commit crimes of intent.
The third obstacle was the ultra vires doc-
trine, under which courts would not hold
corporations accountable for acts, such
as crimes, that were not provided for in
their charters. Eventually, the fourth ob-
stacle was courts’ literal understanding of
criminal procedure; for example, judges
required the accused to be brought phys-
ically before the court, but corporations
are legal entity, an artificial person so, it
is not possible to appear them in front of
the courts.

OF CORPORATE CRIMINAL The growth of corporate criminal liability

LIABLITY can be traced in the four stages:
The term ‘Corporate criminal liability’ 1. Public Nuisance- Primarily, Courts in

2. Actus reus connotes those result of human conduct which is forbidden by law and hence constitutes of Human action;
result of conduct and act prohibited by law One other hand mens rea is generally taken as blame worthy mental condition.
3. J.W.C. Turner (ed.), “Russell on Crime”, (Universal Law Publishing Pvt., New Delhi, 2001).
4. V.S. Khanna, “Corporate Criminal Liability: What Purpose Does It Serve?” 109 Harvard Law Review, May, 1996.

• 54 •
 N. J. Comp. Law Vol. 5 (2) 2018 pp. 53-58
England and the United States in cases
involving non-feasances of quasi-public
corporations for instance first imposed first
imposed corporate criminal liability: mu-
nicipalities that resulted in public nuisanc-
es. Thereafter, by the early 1800s, courts
began to include commercial corporations
along with quasi- public corporations.
2. Crimes not requiring criminal intent- By
seeing the role and importance of corpo-
rations, courts started to enhance its ju-
risdiction. It extended criminal liability of a
corporate from public nuisance to all of-
fences that did not involve criminal intent.
Earlier, the corporate were held liable
merely for non-feasances act but In the
Queen v. Great North of England Railways Co.5,
Lord Denman ruled that corporations
could be criminally liable for misfeasance
as well which was adopted by the Ameri-
can courts gradually. This judicial pro-
nouncement had encouraged the courts
to extend corporate criminal liability to all
crimes not requiring intent.
3. Crimes of intent- Courts were slow
to extend corporate criminal liability to
crimes of intent. In New York Central and
Hudson River Rail Road Co. v. United States in
1909 did the Supreme Court clearly hold a
corporation liable for crimes of intent. Due
to this, the need for effective enforcement
of law against corporations was needed.
4. Expansion of corporate criminal liabil-
ity- Various historical developments in
Western Europe as well as United States
further contributed to the growth and ex-
pansion of corporate criminal liability.
However, one of the most important fac-
tors favouring criminal liability over civil li-
ability was that the public civil enforcers
did not possess as much enforcement
power as criminal enforcers did.
5. U.S. Eng. Rep 1294 (Q.B. 1846).
6. 212 U.S. 481 (1909).
7. David Ormerod , Smith and Hogan's Criminal Law, (Oxford University Press, Calcutta,13th edition, 2011).
ISSN : 2393 - 9338
TWIN MODELS OF COR-
PORATE CRIMINAL LIA-
BILITY
Derivative model; This model is an individu-
al centric model; (i) Vicarious Liability: The
corporation is indirectly liable on the basis
that the state of mind of the individual is,
in certain circumstances, imputed to the
corporation. corporation vicariously liable
for the acts of its employees if the individu-
al: (i) acted within the scope and nature of
his employment; (ii) acted, at least in part,
to benefit the corporation; and (iii) the act
and intent can be imputed to the corpora-
tion. (ii) Identification Doctrine; This doc-
trine states that the corporation is equiva-
lent with certain key personnel who act
on its behalf. Their conduct and states
of mind are attributed to the corporation.
These personnel are said to represent the
"directing mind" of the corporation. Iden-
tification liability is a modified term for vi-
carious liability, under which the liability of
a restricted range of personnel is imput-
ed to a corporation7. Under identification
doctrine only some category of persons
6 with directorial or managerial responsibil-
ities are held liable rather all employees
and agents .Thus, identification doctrine
narrows the scope of corporate criminal
liability by restricting the range of persons
who can make the corporations liable.
Organisational Model; This model is cen-
tered around the corporation. Under this
model, a connotation termed as “corpo-
rate culture” is focused upon to create
criminal liability for corporations. “Cor-
porate culture” is an attitude, policy and
rule, course of conduct or practice, exist-
ing within the body corporate generally or
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 N. J. Comp. Law Vol. 5 (2) 2018 pp. 53-58
within the area of body corporate in which
the relevant activities take place . Corpo- 8
rate culture doctrine is a new addition to
the models of attracting criminal liability to
corporations. This concept is mainly, ap-
plied in Australia. If we see in Indian con-
text, we will find a combination of vicarious
liability and identification doctrine.
COMPARATIVE PERSPEC-
TIVE
Position In Uk
The development of corporate criminal
liability was initiated in 1840 in the Unit-
ed Kingdom, when the court started to
impose liability on corporations for strict
liability offences. The court imposed vi-
carious criminal liability on corporations
where natural person could be held vicar-
iously liable. The issue of attributing mens
rea to corporations was discussed in
1972 9. The alter ego doctrine was used to
impose criminal liability on corporations.
This theory is now termed as “identifica-
tion theory”. According to this theory; a
company is liable when the individual re-
sponsible can be identified with the com-
pany. Such individual is known as the
‘alter ego’ of the company. The company
will be directly liable for the wrongful acts
or omissions as that of company.
Position In Usa
In the beginning of 20 th
century, the con-
cept of corporate criminal liability was
widely accepted in the United States .It
even includes mens rea offence as well.
The punishment of corporate crime is
based on the doctrine of 'Respondent Su-
perior', whereby agent's conduct is imput-
ed to the corporation. A corporation may
8. Sumit Baudh, “Corporate Criminal Liability: A Review In Light Of Tata-Ulfa Nexus”, 10 (1998).
9. Tesco Supermarkets Ltd. v. Nattrass, [1972] AC 153.
10. New York Central & Hudson River Railroad Co. v. United States, 212 U.S. 481, 491-95 (1909).
11. Angira Singhvi, “Corporate Crime and Sentencing in India Required Amendments in Law:”, International Journal
of Criminal Justice Sciences, (2006).
• 56 •
ISSN : 2393 - 9338
be held criminally liable for the acts, omis-
sions, or failures of an agent acting within
the scope of his employment. 10
Courts
hold a corporation vicariously liable for
the acts of its employees if the individu-
al: (i) acted within the scope and nature
of his employment; (ii) Acted, at least in
part, to benefit the corporation; and (iii)
The act and intent can be imputed to
the corporation.
In an effort to deter corporate crime more
effectively, the US Sentencing Commis-
sion established a number of sentenc-
ing guidelines. 11
The American system of
corporate criminal liability has been the
most developed system created so far.
The adoption of aggregation theory is the
most important element in this system.
Under this theory, when a single employ-
ee had not sufficient information, which
is required, then if multiple individuals
within the corporation possessed the ele-
ments of such information’s cumulatively,
their total knowledge can be attributed to
the corporation.
Status of Corporate Crim-
inal Liability In India: Ju-
dicial Pronouncements
Criminal liability on corporation was not
under the common law as the rationale
behind that the corporation lacked moral
blameworthiness or requisite mens rea
which is recognized as the most conse-
quential element of a crime. It was from
the early 20th century onwards that the
courts started to recognize criminal liabil-
ity of corporations. Basically, corporate
 N. J. Comp. Law Vol. 5 (2) 2018 pp. 53-58 ISSN : 2393 - 9338

criminal liability in India for a criminal act
by a company is mostly dealt under the
Indian Penal Code, 1860 as a crime by a
company will be considered equivalent to
that done by an individual as is also evi-
dent from the famous Bhopal Gas Tragedy
Case. 12
Apart from this, there is much legis-
lation wherein a criminal liability has been
imposed on the corporations when they are
found to be guilty. Some such examples are;
(i) Sec. 141 of the Negotiable Instruments
Act, 1862; (ii) Sec. 7, Essential Commodities
Act; (iii) Section 276-B of the Income Tax Act;
(iv) Section 38 of NDPS Act 1985; (v) Section
21 of The Transplantation of Human Organ
Act 1994; (vi) Section 66 of Food and Safety
Standard Act 2006; (vii) Intellectual Property
Laws; (viii) Environmental Laws.
But the problem arises as to how to apply
those sections upon the companies since
a criminal statute needs to be strictly inter-
preted wherein there is no scope for corpo-
rations to be imprisoned. In Standard Char-
tered Bank and Ors. v. Directorate of Enforcement
and Ors 13 ,the Standard Chartered Bank was
prosecuted for violating certain provisions
of Foreign Exchange Regulation Act, 1973.
The main contention before the court was,
whether a corporate body or company can
be prosecuted for the offences whose man-
datory punishment was imprisonment. The
assistant commissioner in Velliappa Textiles
Ltd (2004) 14
B.N.Srikrishna J. said that “cor-
porate criminal liability cannot be imposed
without making corresponding legislative
changes.” For example, the imposition of
fine in lieu of imprisonment is required to be
introduced in many sections of the penal
statutes. The Court states that the company
could be prosecuted for an offence involv-
ing rupees one lakh or less and be pun-
ished as the option is given to the court to
impose a sentence of imprisonment or fine,
whereas in the case of an offence involving
an amount or value exceeding rupees one
lakh, the court is not given a discretion to
impose imprisonment or fine and therefore,
the company cannot be prosecuted as the
custodial sentence cannot be imposed on
it. The legal difficulty arising out of the above
situation was noticed by the Law Commis-
sion and in its 41st Report, the Law Commis-
sion15 suggested amendment to Section 62
of the Indian Penal Code by adding the fol-
lowing lines: "In every case in which the offence is
only punishable with imprisonment or with impris-
onment and fine and the offender is a company or
other body corporate or an association of individu-
als, it shall be competent to the court to sentence
such offender to fine only."
As per the criminal jurisprudence evolved
till then, under the present Indian law it is
difficult to impose fine in lieu of imprison-
ment though the definition of 'person' in the
Indian Penal Code includes 'company'16 .
Even our Parliament has also proposed to
amend the IPC in this regard by including
fine as an alternate to imprisonment where
corporations are involved in1972. 17 Howev-
er, the Bill was not passed but lapsed. Such
a fundamental change in the criminal ju-
risprudence is a legislative function and

12. N D Jayprakash, “Bhopal Gas Leak Disaster”, The Lawyers Collective, (2004).
13. AIR 2005 SC 2622.
14. AIR 2004 SC 86.
15. www.lawcommissionofindia.com
16. Ibid.
17. The proposed Indian Penal Code (Amendment) Bill, 1972, Clause 72(a) reads as hereunder: "Clause 72(a)(1) - In
every case in which the offences is punishable with imprisonment and fine, and the offender is a company, it shall be
competent for the Court to sentence such offender to fine only. (2) - In every case in which the offence is punishable
with imprisonment and any other punishment not being fine, and the offender is a company, it shall be competent for
the Court to sentence such offender to fine only. Explanation: - For the purpose of this section, 'company' means any
body corporate and includes a firm or other association of individuals.

• 57 •
 N. J. Comp. Law Vol. 5 (2) 2018 pp. 53-58
hence, the Parliament should perform it.
Overruling this decision by Standard Char-
tered Bank, it was held that the imposition
of fine can be made, while the other punish-
ment i.e. imprisonment could be evade as it
is impossible to put a company behind the
bars. The rationale behind this pronounce-
ment was reiterated by the court that if the
contrary view is accepted then every com-
pany would get exemption from the liability
for graver offences which would defeat the
very purpose of the justice.
These Courts have applied the doctrine of
impossibility of performance [Lex non cogit
ad impossibilia] in numerous cases includ-
ing the aforementioned.18 Eventually, the
Supreme Court held that the corporation
could be prosecuted and punished with
fines, irrespective of the mandatory pun-
ishment, which is required under a respec-
tive statue. In a more recent case, Iridium
India Telecom Ltd. case , This argument
19
was rejected that a corporation cannot
possess the moral blameworthiness or
requisite mens rea to commit a crime by
the court. The court held that a corporation
is in same footing as any individual and
may be convicted of both common law
and statutory offences, including which
involves mens rea as well. Therefore, the
present scenario of India is that a corpo-
ration can be convicted and it cannot get
exemption from the liability of a criminal
offence, merely because the punishment
prescribed is ‘punishment and fine’.
18. State of Rajasthan v. Shamsher Singh, 1985(Supp.) SCC 416; Special Reference No. 1 of 2002 reported in MANU/
SC/0891/2002.
19. Iridium India Telecom Ltd v. Motorola Incorporated and Ors., (2010) 160 Comp Cas 147 (SC).
ööööööö
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ISSN : 2393 - 9338
CONCLUSION
The approach to corporate criminal liabil-
ity has changed over the years from no
liability to identification of some person as
the alter ego of the company. The judg-
ments have made it clear that the corpo-
rations cannot escape criminal liability on
the pretext that a corporation does not
have mens rea or that a corporation can-
not be physically punished. Law is equal-
ly applicable to a corporation as it is ap-
plicable to an individual. Those persons
who are responsible for crimes commit-
ted by a corporation will be held criminal-
ly liable. In India, we have plenty of laws,
which make the corporations criminally li-
able, and the courts have held so in Stand-
ard Charter and Iridium Cases. Every system
whether it is civil law systems or common
law systems concerned about the corpo-
rate criminal liability as this term is conse-
quential for corporations as it encourages
the adoption of better standards, more
responsible corporate behavior and cau-
tioning from future misconduct. By attrib-
uting mens rea to corporations, by mak-
ing them held liable for imprisonment, the
court has attached a stigma and deter-
rence against the corporations, which is
the fundamental purpose of the criminal
justice system. If we see in Indian context,
it is a beginning to make culpable these
giant multinational companies, so that we
can evade Bhopal gas tragedy like situa-
tions in which victims are still suffering.
 N. J. Comp. Law Vol. 5 (2) 2018 pp. 59-68 ISSN : 2393 - 9338

ENVIRONMENTAL SUSTAINABILITY
AND SOCIAL JUSTICE
Pradeep Kumar

⃰ Assistant Professor, Department of Law, SLS,

Babasaheb Bhimrao Ambedkar. University, Lucknow , 226025

Email : pradeepbbau@gmail.com

ABSTRACT

The pursuit of economic development by humanities over the centuries has led to
devastating impact on our environment. Since the last two decades the International
Community has been witnessing various challenges both, local and global, on the
environmental front climate change, green house gases, depletion of ozone layer, de-
forestation, desertification and loss of biological diversity to name a few. These issues
are major concern for policy makers across the world and more so in a developing
country like India.

In the early days of the United Nations, the issues of sustainability and environment
were not at the forefront of the international agenda. It was through the outcome of
the 1972 Stockholm Conference the sustainable development began to move to the
centre of the discourse. Twenty years later, the landmark Rio summit recognized the
three pillars of sustainable development and the notion that you cannot, however im-
pressive your economic indicators, the progress cannot be achieved unless you take
the social and the environmental dimensions into account.

Key Words : Issues of Sustainability And Environment, Sustainability Biggest Chal-

lenge, Social Justice.

PAGE : 10 REFERENCES : 08

I NTRO DU C TION 2015, business as usual was replaced by

In 2012, at the Rio+20 meeting, Heads of an ambitious, integrated and transforma-

State and Governments renewed their tional agenda for action.1

commitment to ensure the promotion of

an economically, socially and environ- There are powerful synergies between

mentally sustainable future for our planet. environmental sustainability and social

Far-reaching decisions were adopted to justice at the community level, nationally

strengthen the environmental dimension and in the international arena. They de-

of sustainable development. The Rio+20 serve greater attention and a deeper un-

outcome document ‘The Future We Want’ derstanding. Environmental Sustainability

demanded a new vision and a respon- and social justice are both widely regard-

sive framework. In the Paris convention ed as desirable goals and there are grow-

1. Available at http://web.unep.org/post2015/history.php last visited on June 28, 2018

• 59 •
 N. J. Comp. Law Vol. 5 (2) 2018 pp. 59-68
ing political interest, about the degree to
which they are compatible. It is becom-
ing more widely recognized that social in-
equalities are among the main causes of
environmental degradation. Moreover, it
is becoming more widely understood that
environmental problems disproportion-
ately affect the poor.
Since the 1987 World Commission on En-
vironment and Development i.e. sustain-
able development various attempts have
been made to define this concept. In the
Brundtland report itself sustainable devel-
opment was defined as development - to
meets the needs of the present without
compromising the ability of future gener-
ations to meet their own needs.2
The environmental concern has added a
third dimension i.e. Sustainability. India’s
biggest challenge today is to identify and
implement a development process that
will lead to greater equity, growth and
sustainability. The environment is not just
pretty trees and tigers, threatened plants
and ecosystems, it is literally the entity of
which we all subsist and on which the
entire agricultural and industrial develop-
ment depends. Development can take
place at the cost of environment only until
a point. Development without the concern
of environment can only be short term
development. In the long term, it can only
be anti-development and can go only at
the cost of enormous human suffering,
increased poverty and oppression, India
may be rapidly approaching that point.
One very dramatic area where govern-
ment policies have consistently increase
2. Our Common Future; Brundtland Report 1987.
3. Shyam Divan Armin Rozencranz “Environmental Law and Policy in India,” Oxford University Press, New Delhi
110001, p.13.
4. Ibid
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ISSN : 2393 - 9338
social injustice. The entire tribal popula-
tion and millions of other forest dwelling
people, depend on the forest for their very
existence. Destruction of forests has meant
the social, cultural and economic destruc-
tion of the tribal population in particular. 4
The values of sustainability and corpo-
rate social responsibility emerged in the
last two decades of the twentieth cen-
tury mainly in order to compensate for
the negative externalities of many past
capitalist economic practices. The values
of sustainability and social responsibility
are intended to help correct for and off-
set the features of capitalism that tend to
externalize costs to society and to envi-
ronmental quality that ought to be prop-
erly accounted for in each business enter-
prise’s own bottom lines.
The concept of sustainability is links with
social justice. On this account, sustaina-
ble business enterprises are those which
can credibly demonstrate that they can
maintain profitability without practicing
forms of unjust exploitation of either hu-
man or natural capital.
MEANING AND DEFINITION
Social justice being a multi-dimensional
concept has been viewed by scholar of
law, philosophy and political science dif-
ferently. The term social justice is quite
comprehensive. Social justice is a bundle
of rights. It is a balancing wheel between
haves and has not. It is a great social val-
ue in providing a stable society and in se-
curing the unity of the country.
3
In general, Social justice means “the right of
the weak, aged, destitute, poor, women, chil-
dren and other under-privileged persons”.
 N. J. Comp. Law Vol. 5 (2) 2018 pp. 59-68
The United Nations 2006 document So-
cial Justice in an Open World; the Role
of the United Nations, states that “Social
justice may be broadly understood as the
fair and compassionate distribution of the
fruits of economic growth…”
The term ‘social justice’ was seen by the
U.N. “as a substitute for the protection of
human rights and first appeared in Unit-
ed Nations texts during the second half
of the 1960s. At the initiative of the Soviet
Union, and with the support of developing
countries, the term was used in the Dec-
laration on Social Progress and Develop-
ment, adopted in 1969.”5
The same document reports,
the comprehensive global perspective
shaped by the United Nations Charter
and the Universal Declaration of Human
Rights, neglect of the pursuit of social jus-
tice in all its dimensions translates into de
facto acceptance of a future marred by vi-
olence, repression and chaos.” The report
concludes, “Social justice is not possible
without strong and coherent redistribu-
tive policies conceived and implemented
by public agencies.”
According to John Rawls, the concept of
social justice is “all social primary goods-
liberty and opportunity, income
wealth, and the basis of self respect are to
be distributed equally unless an unequal
distribution of any or all of these goods is
to the advantage of the least favoured”.
In envisaging such ‘unequal distribution’
of the social primary goods to benefit the
5. Social Justice in an open World: The Role of the United Nations, The International Forum for Social Development,
Department of Economic and Social Affairs, Division for Social Policy and Development, ST/ESA/305 (PDF). New York:
United Nations. 2006, p. 52.
6. John Rawl’s “Theory of Justice” Universal Law Pub. Delhi, 2002, p.44
7. Surendra Singh “Dr. Ambedkar Contribution to Social Justice” Edit. By Prof. M. Shabbir, Rawat Pub. Jaipur, 2005, p.78
8. Ibid, p.79
9. Ibid, p.81
ISSN : 2393 - 9338
‘least favoured’ in the society, John Rawls
has displayed a great sense of pragma-
tism. He rightly felt that equal distribution
of the ‘social primary goods’ in an unequal
or hierarchical society would result in per-
petuating the already existing inequality
and the social justice would become cry
in the wilderness. In enunciating this view,
Rawls seems to have anticipated the doc-
trine of ‘Protective Discrimination’ embod-
ied in the Constitution of India.
According to DIAS, justice is not some-
thing which can be captured in a formula
once or for all, it is a process, complex
and shifting balance between many fac-
tors. The tasks of justice are “the just allo-
“From cation of advantages and disadvantages,
preventing the abuse of power, prevent-
ing the abuse of liberty, the just decision
of disputes and adapting to change”. Jus-
tice may be natural justice or distributive
justice. Social justice is basically a term
which provides sustenance to the rule
of law. It has a wider connotation in the
sense that it includes economic justice
also. It aims in removing all kinds of in-
equalities and affording equal opportuni-
ties to all citizens in social as well as eco-
nomic affairs.9
Thus the aim of social justice is to re-
and move all kinds of inequalities based upon
Caste, race, sex, power, position, wealth
and brings about equal distribution of the
justice is a balance between social rights
and social controls.
According to Utilitarian, social justice is
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 N. J. Comp. Law Vol. 5 (2) 2018 pp. 59-68
being one of the dimensions of justice
which stands for fraternity; with a view
to create such human social conditions
which ensure free and fair development
of all human beings. 10
Another important jurist, whose writings
have great impact on the concept of so-
cial justice is Roscoe Pound. He classi-
fies three legally protected interests, 11
and
they are public interests, social interests
and private interests. In social interests
he enumerates six important ‘social in-
terests’ 12
and his sixth principle of social
interests is very relevant to the concept of
social justice. According to the sixth prin-
ciple, there is social interest in the individ-
ual human life, which is described by him
as ‘the claim or want or demand involved
in social life of a civilized society that each
individual be able to live a humane life
there in according to the standards of the
society”. 13
This principle of Roscoe Pound
was considered as one of the most im-
portant of all.
Krishna Iyar a former Judge of the Su-
preme Court of India says, “Social justice
is not cant but conscience, not verbal
borrowing from like documents but the
social force of the supreme law”. Social
justice is people oriented; legal justice is
canalized, controlled and conferred by
law. 14
Social justice is the product of so-
cial injustice and seeks to remove social
and economic inequalities and ensure
equality of status, equality of opportunity
etc. Social justice of today becomes the
legal justice of tomorrow.
10. Nazeer.H.Khan, “B.R. Ambedkar on federalism, ethnicity and junder justice” Deep & Deep Publication, New Delhi, p.151
11. W. Friedman. “Legal Theory” 5thEdn, Universal Law Publication. New Delhi,2002, p.336
12. Ibid, p.337
13. Ibid. p.338
14. Krishna Iyar “B.R. Ambedkar Centenary, Social Justice and the Undone vast Justice” B.R Pub. Delhi, 1991, p141
15. Merunandan K.B, NaveedAhemed, “An Introduction to the Constitution of India” Merugu Pub, Bangalore, 2006, p. 226
16. Available at johackle.info/why-is-the-concept-of-environmental-sustainability-important, visited on 23/03/2018
• 62 •
ISSN : 2393 - 9338
The Supreme Court has explained the
concept of social justice by saying that,
“the Constitution commands justice, liber-
ty, equality and fraternity as supreme val-
ues to usher in the egalitarian social, eco-
nomic and political democracy”. Social
justice, equality and dignity of persons
are corner stone’s of social democracy.
The concept of “social justice” which the
Constitution of India engrafted consists of
diverse principles essential for the orderly
growth and development of the personal-
ity of every citizen. Social justice is thus an
integral part of justice in the generic sense.
We can say that justice is a genus of which
social justice is one of its species. Social jus-
tice is a dynamic device to mitigate the suf-
fering of the poor, weak, tribes and deprived
sections of the society.15
ENVIRONMENTAL SUS-
TAINABILITY
The concept of sustainability is a relatively
new idea. The movement as a whole has
its roots in social justice, conservationism,
internationalism and other past move-
ments with rich histories .16
Sustainability is a holistic approach that
considers ecological, social and econom-
ic dimensions, recognizing that all must
be considered together to find lasting
prosperity. Sustainability is the process of
living within the limits of available, physi-
cal, natural and social resources in ways
that allow the living systems in which hu-
mans are embedded to thrive in perpetuity.
Sustainability has become a prominent
 N. J. Comp. Law Vol. 5 (2) 2018 pp. 59-68 ISSN : 2393 - 9338

concept in societal and political discours- vironmental catastrophes disproportion-

es around the world and serves as a ma-
jor guideline for political actions and fu-
ture societal development. 17
Herman Daly, one of the early pioneers of
ecological sustainability, looked at the prob-
lem from a maintenance of natural capital
viewpoint. In 1990 he proposed that:
ately affect poor people. In undeveloped
regions, deforestation and desertification
make access to resources even more
difficult for those already in need at the
same time as they create barriers to gen-
der equality and conflict over quickly dis-
appearing. The resources are an undeni-
able cause of violence and war. `
21

i. For renewable resources: The rate of har-

vest should not exceed the rate of re-
generation (sustainable yield);
ii. For pollution: The rates of waste gener-
ation from projects should not exceed
the assimilative capacity of the envi-
ronment (sustainable waste disposal);
iii. For nonrenewable resources: The deple-
tion of the nonrenewable resources
should require comparable develop-
ment of renewable substitutes for that
resource. 18
It's the Three Pillars of Sustainability. When
all three pillars are strong, people live in a
system where high quality life is the norm.
They have a clean healthy environment, a
satisfactory level of economic well-being,
and a robust level of social fulfillment.
Environmental Sustainability Ecological
integrity is maintained. All of earth’s en-
vironmental systems are kept in balance
while natural resources within them are
consumed by humans at a rate where
they are able to replenish themselves.20
Nexus between Social Justice and
Environmental Sustainability:
The links between sustainability and so-
cial justice are growing ever clearer. En-
It makes it clear that linking between so-
cial and environmental policy is neces-
sary for two reasons. Firstly, to ensure we
genuinely tackle the root causes of ill-health,
poverty and disadvantage. Secondly, to de-
liver significant economic and social divi-
dends in the form of jobs, economic pro-
gress and stronger communities.
Social justice is broadly about the distri-
bution of benefits and burdens. The Com-
mission on Social Justice highlighted
several essential values of social justice,
the equal worth of all citizens, their equal
right to meet their basic needs, the need
to spread opportunities and life chances
19
as widely as possible, and finally the re-
quirement that reduce and where possi-
bly eliminate unjustified inequalities.22
Social Justice and Environmen-
tal Sustainability Indian Juris-
prudence
In India social justice is preambular com-
mitment of the constitution of India.23
Environmental facet has been read and
interpreted by the Indian courts as a natu-
ral consequence to various other provi-
sion of the constitution. Soon after intro-

17. Klara Helene Stumpf 1,2,*, Stefan Baumgärtner 1,3, Christian U. Becker 4 and Stefanie Sievers-Glotzbach The
Justice Dimension of Sustainability: A Systematic and General Conceptual Framework
18. Molly Scott Cato “Environment and Economy” Routledge Publication 2011 p.81
19. Available at http://www.thwink.org/sustain/glossary/EnvironmentalSustainability.htm last visited on 23/03/2018
20. Available at https://www.coursehero.com › ... › INSS › INSS 123 last visited on 23/03/2018
21. Available at sustainability.blogs.brynmawr.edu/what_you_can_do/social_justice last visited on 23/03/2018
22. Helen Jones, Susanne MacGregor “Social Issues and Party Politics”
23. The Constitution of India,1950

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 N. J. Comp. Law Vol. 5 (2) 2018 pp. 59-68
duction of this crucial fundamental duty
of the citizen, Indian Supreme Court rec-
ognize it as very important landmark in
the development of the Indian sustain-
able development jurisprudence. While
deciding the case of Rural Litigation and
Entitlement Kendra and others v. State
of Uttar Pradesh and others,24 the Court
held that;
“Consciousness for environmental pro-
tection is of recent origin. The United
Nations Conference on World Environ-
ment held in Stockholm in June 1972
and the follow-up action thereafter is
spreading the awareness. Over thou-
sands of years men had been success-
fully exploiting the ecological system
for his sustenance but with the growth
of population the demand for land has
increased and forest growth has been
and is being cut down and man has
started encroaching upon Nature and
its assets. Scientific developments
have made it possible and convenient
for man to approach the places which
were hitherto beyond his ken. The con-
sequences of such interference with
ecology and environment have now
came to be realized. It is necessary that
the Himalayas and the forest growth on
the mountain range should be left un-
interfered with so that there may be suf-
ficient quantity of rain. The top soil may
be preserved without being eroded and
the natural setting of the area may re-
main intact. We had commended ear-
lier to the State of Uttar Pradesh as also
to the Union of India that afforestation
activity may be carried out in the whole
valley and the hills. We have been told
that such activity has been undertaken.
24. A.I.R 1987 SC 359
25. AIR 1990 SC 420.
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ISSN : 2393 - 9338
We are not oblivious of the fact that nat-
ural resources have got to be tapped for
the purposes of social development but
one cannot forget at the same time that
tapping of resources have to be done
with requisite attention and care so that
ecology and environment may not be
affected in any serious' way; there may
not be any depletion of water resources
and long-term planning must be under-
taken to keep up the national wealth.
It has always to be remembered that
these are permanent assets of mankind
and are not intended to be exhausted
in one generation. We must place on
record our appreciation of the steps
taken by the Rural Litigation and Entitle-
ment Kendra. But for this move, all that
has happened perhaps may not have
come. Preservation of the environment
and keeping the ecological balance un-
affected is a task which not only Govern-
ments but also every citizen must under-
take. It is a social obligation and let us
remind every Indian Estelarcitisen that
it is his fundamental duty as enshrined
in Article 51 A (g) of the Constitution.”
Right to clean environment has been read
and interpreted as a part and parcel of the
Right to life enshrined under Article 21 of
the Constitution of India. Development,
whether social, economic or environmen-
tal, flows from various articles of the con-
stitution of India. The facets of sustainable
development principles enshrined in the
Constitution of India. Each and every arti-
cle guarantees and promotes the sustain-
able development in a unique way.
In Subhash Kumar v. State of Bihar,25
Justice Kuldip Singh has remarked that
 N. J. Comp. Law Vol. 5 (2) 2018 pp. 59-68 ISSN : 2393 - 9338

“Article 21 includes the right of enjoyment industries in India, increasing number of

of pollution free water and air for enjoy-
ment of life.” 26
Article 48 (A) of the Directive Principle of
State Policy and Article 51 A (g) of Fun-
damental duty of the Constitution. The ju-
dicial contribution on Sustainable Devel-
opment also significantly remarked that
right to healthy environment
life and livelihood 28
and led to the level of
a Constitutional prescription towards a
rational management of resources.
The principles and doctrines evolved by
the courts with a view to ensure environ-
mental sustainability and social justice
are given below.
enterprises store and use hazardous sub-
stances. These activities are not banned
because they have great social utility
(e.g., the manufacture of fertilizers and
pesticides). Traditionally, the doctrine al-
lows for the growth of hazardous indus-
tries, while ensuring that such enterprises
will bear the burden of the damage they
27
as part of cause when a hazardous substance es-
capes. Shortly after the Bhopal gas leak
tragedy of 1984, the traditional doctrine
29
was replaced by the rule of absolute lia-
bility, a standard stricter than strict liability.
Absolute liability was first articulated by
the Supreme Court and has since been
adopted by parliament.32 The genesis of
absolute liability was the Shriram Gas Leak

i. Absolute Liability Doc- Case33 which was decided by Supreme

trine Court of India in December 1986.

In India, the principle of absolute liability ii. Public Trust Doctrine

is not a part of traditional environmental
jurisprudence. The common law doctrine
of strict liability, describe who can initiate
proceeding for want of damages.
Rylands v. Fletcher, 31
the Privy Coun-
cil evolved a principle of strict liability to
ensure remedy for the affected persons
in view of environmental degradation.
Some exceptions were recognized as a
ground wherein the polluter might get re-
lief from payment of damages to the vic-
tim. Hughes argues that, failure to provide
a generally accepted liability remarks the
weakness of the judicial system in provid-
ing remedy to the affected persons.
With the expansion of chemical based
The traditional use of public trust doctrine
rests common property like navigation,
comers and fishing only. The modern
30
In uses of the doctrine covers certain re-
sources like air, sea, waters and the for-
ests have such a great importance to the
people as a whole that it would be wholly
unjustified to make them a subject of pri-
vate ownership. The said resources be-
ing a gift of nature, they should be made
freely available to everyone irrespective of
the status in life.
In M. C. Metha v. Kamalnath,34 the Su-
preme Court held that;
“Public Trust Doctrine was founded
to protect certain common properties

26. Kuldip Singh, “Environmental Protection - the Role of Judiciary”, CULR (2004), pp15-24 at 19.
27. Kuldip Singh, “Environmental Protection -The Role of Judiciary”, CULR (2004), pp15-24;
28. Justice V. G. Palshikar, “Human Rights and Environmental Protection”, AIR (J) (2003), pp93-99;
29. David Ambrose, “Social Justice Through Environmental Protection: The Role of Indian Judiciary” in Dr T. N. Sastry (Edn.,) ,
Fifty Years of Indian Independence and the Polity, (A. P. H.Publishing Corporation, New Delhi, 2000), pp95-110 at 98
30. David Hughes, Environmental Law, (Second Edition, Butterworths, London, 1992), p. 25
31. 1868) LR 3 HL 330
32. Supra note 3 pp. 105-106
33. M.C.Mehta v. Union of India AIR 1987SC 1086
34. M. C. Metha v. Kamalnath [(1997) 1 SCC338]

• 65 •
 N. J. Comp. Law Vol. 5 (2) 2018 pp. 59-68
such as rivers, sea-shore, forests and
air were held by the government in trus-
teeship for the free and unimpeded use
of general public.. These resources be-
ing a gift of nature, have a great impor-
tance to the people as a whole should
be made freely available to everyone
irrespective of the status on life.
state is a trustee of all natural resources
and also state has a legal duty to pro-
tect them and that the resources were
meant for public use and could not be
transferred to private ownership.”
iii. Precautionary Principle
Amongst the legal elements of the concept
of Sustainable Development of UNCED;
the precautionary principle has laid down
foundation for the contemporary sustaina-
bility. The notion of precaution is stemmed
with state practice by legislation and ap-
plication of domestic courts,
practice.35 The Supreme Court in Vellore
citizen’s36 case finally analyzed the precau-
tionary principle and stated that this prin-
ciple is part of the law of the land. In A. P.
Pollution Control Case,37 the court reiter-
ate the significance of the Precautionary
Principle. In Narmada Bacho Andolans case,
Chief Justice A S Anand and Justice B N
Kirpal gave the following findings:
The precautionary principle and the cor-
responding burden of proof on the per-
son who wants to change the status quo
will ordinarily apply in a case of polluting
or other project or industry where the ex-
tent of damage likely to be inflicted is not
known. When there is a statutory uncer-
tainty due to lack of date or material about
the extent of damage or pollution likely to
35. B. C. Nirmal, “From Velloe to Nayudu: The Customary Law Status of the Precautionary Principle” 30 Ban. L. J. (2001) pp 58-99 at 59
36. Vellore Citizens Welfare Forum v. Union of India, AIR1996 SC 2715
37. A. P. Pollution Control Board v. M. V. Nayudu, (1999) 2 SCC 718; AIR 1999 SC 812
38. Coded in article India: polluter pay principles by Rupin Chopra
ISSN : 2393 - 9338
be caused then, in order to maintain eco-
logical balance, the burden of proof that
the said balance will be maintained must
necessarily be o the industry or the unit
which is likely to cause pollution.
iv. Polluter Pays Principle
The Polluter Pays Principle was first in-
The troduced in 1972 by the Organization for
Economic Cooperation and Development
(OECD) Guiding Principles concerning In-
ternational Economic Aspects of Environ-
mental policies where under the polluter
was held responsible for the environmen-
tal damage and pollution. Subsequently,
the Rio Declaration laid down the guide-
lines for sustainable development mean-
ing thereby a strategy to cater the needs
of the present generation without compro-
mising the needs of the future generation.
In furtherance of the aim of sustainable
development Rio Declaration Principle 16
as state
of the Rio Declaration enshrined the Pol-
luter Pays principle stating that the pollut-
er should bear the cost of pollution.38 The
Polluter Pays Principle imposes liability on
a person who pollutes the environment to
compensate for the damage caused and
return the environment to its original state
regardless of the intent.
Polluter Pays Principle makes the polluter
liable to pay the costs to remedy the en-
vironmental harm caused. This principle
is considered to be the most efficient way
of allocating costs of pollution prevention
and control measures introduced by the
public authorities to encourage rationale
uses scarce of environmental resources.
In Indian Council for Enviro Legal Action
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 N. J. Comp. Law Vol. 5 (2) 2018 pp. 59-68 ISSN : 2393 - 9338

v. Union of India,39 The Court held that provide speedy and effective remedy
once the activity carried on is hazardous against environmental pollution Green
or inherently dangerous, the person carry- Benches were created with a specific
ing on such activity is liable to make good objectives. The 186th Report of the law
the loss caused to any other person by his Commission recommends the setting up
activity irrespective of the fact whether he of Green Courts in India with its composi-
took reasonable care while carrying on tion, power and procedure of the court.
his activity. Compensation and remedial INTERNATIONAL EFFORTS
action for loss suffered by citizenry due to TOWARDS SOCIAL JUS-
pollution.
TICE AND ENVIRONMEN-
TAL SUSTAINABILITY
In T.N. Godavarman Thirumulpad v. Un-
It is important to emphasize the connec-
ion of India and others40 , the court held
tions between sustainability and social
that the concept of Sustainable Develop-
justice. This is especially relevant since
ment is permissible and is universally ac-
Bryn Mawr is known for being a socially
cepted phenomenon.
responsible institution; in order to main-
tain that reputation, we must continue
“Biodiversity valuations has important
exploring this relationship and strengthen
implications for decision making. Since
our commitment to sustainability.Below
all value does not get reflected in mar-
are some articles that relate sustainability
kets, its valuation also raises methodo-
and social justice.
logical problems regarding the kinds
of value that are being captured by the
From the UN Environment Programme,
particular technique being used. This im-
Rio Declaration of Environment and De-
plies that biodiversity value for which a
velopment: the following articles are more
market exists must be taken note of, while
important.
simultaneously making sure that the nat-
ural capital inherent in biodiversity rich
areas in preserved and values which are
Principle 20
crucial for some stakeholders but cannot
Women have a vital role in environmen-
be expressed in the market are reflected
tal management and development. Their
in societal decision making”.
full participation is therefore essential to
achieve sustainable development.
In addition to the conservation of resourc-
es for achieving environmental sustain-
ability, the apex court has also given new
Principle 21
directions to environmental justice on en-
The creativity, ideals and courage of the
vironmental education, public awareness,
youth of the world should be mobilized
and green court….etc. Since environmen-
to forge a global partnership in order to
tal litigation are technical in nature, the
achieve sustainable development and
apex court realized that it requires assis-
ensure a better future for all.
tance of scientific experts that can also

39. (1996) 5 SCC 218.

40. W.P. 2570 of 2000 and W.P. No. 9139 of 2000, Decided on 04.11.2004.

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 N. J. Comp. Law Vol. 5 (2) 2018 pp. 59-68 ISSN : 2393 - 9338

Principle 22
Indigenous people and their communities
and other local communities have a vital
role in environmental management and
development because of their knowledge
and traditional practices. States should
recognize and duly support their identity,
culture and interests and enable their ef-
fective participation in the achievement of
sustainable development.
CONCLUSION
The environmental problems in India
as well as at global level are growing
rapidly. The increasing economic de-
velopment and a rapidly growing popu-
lation are putting the strain on the en-
vironment, biodiversity, and countries
natural resources. Over use of natural
resources not only against the social
justice but it’s reveals fertile environ-
ment of ecological injustice.

ööööööö

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 N. J. Comp. Law Vol. 5 (2) 2018 pp. 69-74 ISSN : 2393 - 9338

ACCESS TO ESSENTIAL MEDICINE AND

HUMAN RIGHTS CONCEPT IN INDIA
*Abhishek Kr. Tiwari & **Nemi Chand Saini

*Assistant Professor, Department of Law University of Rajasthan, Jaipu

** Research Scholar, University of Rajasthan, Jaipur

Email : abhiktiwari@gmail.com

ABSTRACT

Right to life is a fundamental right to the citizens of India as guaranteed by the Con-
stitution. It is the fundamental right of every human being to maintain his health. In a
civilized society, health of the citizens is an important sector for the Government. The
Government is responsible to provide health services to the public. In India the health
services are provided by both by Central and State Governments. But the available re-
sources with the Governments are not enough to cover all citizens under health care
services. Law and medicines are interrelated because health law is framed based on
torts, crime and family law. It has its roots in the Fundamental Rights and Directive
Principles of the Constitution of India. Access to essential medicines as part of the right
to the highest attainable standard of health ("the right to health") is well-founded in
international law. The right to health first emerged as a social right in the constitution
of World Health Organization and in the Universal Declaration of Human Rights (1948),
The right to health is also provided in International Covenant on Economic, Social, and
Cultural Rights (ICESCR) of 1966 details the progressive realization of the right to health
through four concrete steps, including access to health facilities, goods and services.

Key Words: Essential Medicines, Public Health, Health Services, Right To Health,
Essential Drugs List, Rational use of Drugs.

PAGE : 07 REFERENCES : 12

I NTRO DU C TION India is planning to introduce free generic

Many people in the developing world suf-
fer from poor health and reduced life ex-
pectancy. Access to essential medicines is
a major determinant of health outcomes.
Several countries have made substantial
progress towards increasing access to
essential medicines, but access to essen-
tial medicines in developing countries like
India is not adequate. The government of
and essential medicines in public health
facilities. Most people in India buy health-
care from the private sector, a compul-
sion that accounts for a high proportion
of healthcare-related expenditure. The
concept of defining essential medicines
and establishing a list of them was aimed
to improve the availability of affordable
medicines for the Indian’s poor.1 In this

1. Indian Journal of Community Medicine, volume 40(4); Oct-Dec 2015 PMC4581141

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 N. J. Comp. Law Vol. 5 (2) 2018 pp. 69-74
paper, I have tried to present the Indian
scenario in respect to availability and ac-
cessibility of essential medicines over last
ten years. To enhance the credibility of Indi-
an healthcare system, procurement and de-
livery systems of essential medicines have
to be strengthened through government
commitment, careful selection, adequate
public sector financing, efficient distribution
systems, control on taxes and duties, and
inculcating a culture of rational use of medi-
cines in current and future prescribers.
WHAT ARE ESSENTIAL
MEDICINES?
According to WHO essential medicines
are those that satisfy the priority health
care needs of the population. They are se-
lected with due regard to public health rel-
evance, evidence on efficacy and safety,
and comparative cost-effectiveness.
Essential medicines are intended to be
available within the context of function-
ing health systems at all times in ade-
quate amounts, in the appropriate dosage
forms, with assured quality and adequate
information, and at a price the individual
and the community can afford.2
These medicines should be widely avail-
able across India in public health facili-
ties such as health centers and hospitals.
However, due to limited resources sup-
plies in public health facilities, patients are
forced to turn to the private sector where
medicines are more expensive. WHO’s
Essential Medicines Programme
much to offer on this regards. Its consist-
ent focus on sustainable, universal access
to essential medicines through the devel-
opment of national medicines policies
has always been in line with human rights
2. https://www.who.int/medicines/services/essmedicines_def/en/
3. Abrol Dinesh, Sakthivel S., Gopakumar K. M., “Access to Medicines in India”, Academic Foundation, 2014, New Delhi, India, Page 7-22.
4. Adhikari Nandita, “Law & Medicine”, Fourth edition 2015, Reprint 2017, Central Law Publication, Allahabad, Page 38-39
• 70 •
ISSN : 2393 - 9338
principles of non-discrimination and care
for the poor and disadvantaged. This also
applies to its focus on good governance.3
Human rights concerns to es-
sential medicines
Human rights are legally guaranteed by
international, regional and national hu-
man rights law, protecting individuals
and groups against actions that interfere
with fundamental freedoms and human
dignity. Most human rights are inters de-
pendent. For example, the right to health
is closely associated with the right to
life and indispensable for the exercise
of most other human rights. Freedom
from discrimination underpins all human
rights. When we talk of human rights we
presuppose recognition of the dignity and
worth of human person. But it is a fact that
this human dignity, in practice, is denied
in many ways. Human Rights are natural
rights. These rights are to be recognised
for all people irrespective of their religious,
political, social or cultural affiliation. Hu-
man rights are rooted in moral values. Be-
cause of this, legal recognition of human
rights is a dynamic historical process. As
a result of this process, rights have en-
shrined in declaration, convention and
covenants that go to make International
Human Rights Law. Many countries have
their constitutional provisions for human
rights. Access and availability of essential
medicines in India is not only recognized
as a fundamental right under Article 21
has of the Constitution but also by WHO and
other international human right cove-
nants and declaration like Doha Declara-
tion. In addition to this, TRIPS recognized
compulsory licensing as a government
measure to protect public interest.4
 N. J. Comp. Law Vol. 5 (2) 2018 pp. 69-74
India is also nationally affected by poor
availability, accessibility and affordability
of essential medicines. Comprehensive
data on access to medicines with in India
are lacking, but the World Bank classify
it is a lower-middle income country with
substantial poverty lines. The provision of
Essential Medicines is protected through
a number of legal sources, the most ob-
vious and logical starting point being the
right to health. 5
Access to essential medicines
as part of the fulfillment of the
right to health
In old days, in most cultures, health was
known as ‘absence of disease’. The mod-
ern medicine is more for the study of
health. But health has been recognised
as a fundamental human right. In 1977
the World Health Assembly and WHO de-
clared, “The attainment by all citizens of
the World by the year 2000 of a level of
health that will permit them to lead a so-
cially and economically productive life”.
With adaptation of health as an integral
part of socio-economic development by
the United Nation in 1979, health has also
become a major instrument of overall so-
cio-economic development and creation
of a new social order.
The World Health Organisation (1948) de-
fined health as, “Health is a state of com-
plete physical, mental and social well be-
ing and not merely an absence of disease
or infirmity.” The definition is limitation but
it stands for positive health. In a narrow
sense health means: (a) there is no evi-
dence of disease and that a person func-
5. Hesselman Marlies, Hallo de Wolf Antenor, Toebes Brigit, “Socio-economical human rights in essential public services
provision”, Electronic Edition 2016, Taylor & Francis, Page 44-45
6. Adhikari Nandita, “Law & Medicine”, Fourth edition 2015, Reprint 2017, Central Law Publication, Allahabad, Page 41-42
7. Adhikari Nandita, “Law & Medicine”, Fourth edition 2015, Reprint 2017, Central Law Publication, Allahabad, Page 43-44
• 71 •
ISSN : 2393 - 9338
tion normally, and (b) the several organs
of the body are functioning adequately.
The WTO definition of health points to
three dimensions- physical, mental and
social. In addition, one strives to know the
meaning and purpose of life. This is spiritual
dimension of health. Interrupted emotion
may lead to physical and mental illness.6
The Constitution of India under Article 21
guarantees the right to health for every
citizen of India. Article 21 is a negative
right conferred upon the State by the
Constitution which protects life and dig-
nity of all. The approach of the Constitu-
tion is human-rights based which covers
within its broad ambit the right to health
and medical care and access of medi-
cines in sufficient quantities. In Munn vs.
Illinois, Field J. stated, “By the term Life
as here used something more than animal
existence.” This statement was reiterated by
the Supreme Court in Francis Coralie vs.
Union Territory of Delhi wherein the court
held that “any act which damages or injures
or interferes with use of any limb or faculty
of a person either permanently or tempo-
rary would be within the inhibition of Article
21”. J Bhagwati went a step forward by say-
ing that right to life means right to live with
dignity and all that goes to make life digni-
fied. This also includes the right to access
to basic medicines without which there is
no possibility of survival or man may be re-
duced to a mere vegetative state. The court
in Chameli Singh vs. State of UP was of the
view of that “Right to live as a human be-
ing is secured when he is assured of all the
facilities to develop himself free from restric-
tions inhibiting the growth.”7
 N. J. Comp. Law Vol. 5 (2) 2018 pp. 69-74
It is important to note that the right to
health cannot be fulfilled overnight, as
resource constraints may prevent States
Parties from immediate implementation.
The principle of “progressive realization”
therefore acknowledges the
available resources.
The Delhi High Court issued an important
judgment on Article 21, the right to health,
intellectual property and access to medi-
cine. The issue in Mohammed Ahmed
vs. Union of India is set out in the first
paragraph “Whether a minor child born to
parents belonging to economically weak-
er section of the society suffering from a
chronic and rare disease, gaucher, is en-
titled to free medical treatment costing
about rupees six lakhs per month espe-
cially when the treatment is known, prog-
nosis is good and there is every likelihood
of petitioner leading a normal life.”
The petitioner, Mohammed Ahmed, was
suffering from a rare disease, called the
“Gaucher Disease”. There is a known
treatment Enzyme Replacement Therapy
which, however, is extremely expensive,
and the drugs required for it are manufac-
tured by only three pharmaceutical com-
panies. The reason for the high expense,
as the Court explains, is the rarity of the
disease. Thus, the basic issue in this case
was given that the right to health has
been read into Article 21, what amount of
deference ought a Court to accord to the
legislature’s determination that the lack
of resources does not allow it to provide
medical treatment to a particular person
and, as a corollary, does the degree of
deference change with the nature of the
case, turning upon factors such as the
8. https://www.globalhealthrights.org/asia/mohd-ahmed-minor-v-union-of-india-ors/ accessed on 19/01/2019
ISSN : 2393 - 9338
patient’s poverty, the seriousness of the
disease, the availability of treatment, and
so on. In its reasoning, the Court found
that although a number of countries had
specific policies in place to address the
limits of problems of orphan drugs, no such policy
existed in India. Because of the separa-
tion of powers, however, the Court could
not require the legislature to draft a law or
frame a policy.8
Implementation of Essentials
Medicine concept in India
The magnitude and extend of right to life
is however subjected to the economic
development of a country. The patent
regimen is well established in India. India
is one of the fastest growing economical
powers and in such a scenario, handling
over the power to the government to reg-
ulate access to medicines and drugs will
not hamper the economic growth. The
Supreme Court has creatively interpreted
Article 21 and decided cases in favor of
right to health thereby upholding the ob-
ligation of the State at all times to protect
and improve health. In State of Punjab
vs. Mohinder Singh Chawla, the Court
held that the Indian government has con-
stitutional obligation to provide health fa-
cilities, medical services to people and
whatever is necessary for this purpose
has to be done. This transition brings us
back to our right health and accessed to
patented medicines so that the patient
can live with dignity and get due treat-
ment by consuming the medicines.
Article 38 demands social welfare meas-
ures from the State as is expected under
the Constitution. Article 39 envisaged the
dignity of individual which should be pro-
• 72 •
 N. J. Comp. Law Vol. 5 (2) 2018 pp. 69-74
tected at all times during the social, eco-
nomic and political development. “Mate-
rial resources of the community” not only
include resources at hands of the private
persons but also the state extending to
movable and immovable properties such
as patents and access to patented medi-
cines. Article 41 further states that the
State has the duty to provides assistanc-
es to sick and needy people. This also in-
cludes upholding the medical reimburse-
ment policy in accordance with Article 21.
In Parmananda Katara vs Union of India,
it was held that it is the professional obli-
gation to all doctors to extend medical aid
to the injured immediately to preserve life
without legal formalities to be complies
with police. Therefore, Article 21 casts the
obligation on State to preserve life.9
The Government of India, recognizing the
importance of the WHO Essential Medi-
cines List (EML), Government of India
prepared and published its first National
Essential Drugs List in 1996, which was
revised in 2003 as The National List of Es-
sential Medicines of India (NLEMI 2011)
further was revised recently by the Minis-
try of Health and Family Welfare, Govern-
ment of India in June 2011, nearly eight
years after the previous list, on the direc-
tions of the Supreme Court of India.10
Government of India has introduced a
policy aimed at increasing the availability
of essential medicines at affordable pric-
es. In 2011, the government proposed to
increase the number of drugs remaining
under the purview of the National Phar-
9. Adhikari Nandita, “Law & Medicine”, Fourth edition 2015, Reprint 2017, Central Law Publication, Allahabad, Page 40-42
10. Journal of Postgraduate Medicine, Wolters Kluwer, Medknow Publication, January-March 2012, Volume 58, Issue 1
11. National List of Essential Medicines of India 2011, available at: https://www.who.int/selection_medicines/country_lists/
India_NLME_2011.pdf
12. National List of Essential Medicines of India 2011, available at: http://www.cdsco.nic.in
• 73 •
ISSN : 2393 - 9338
maceuticals Pricing Policy 2011 to 348,
up from initial 74. This policy has been
amended in 2012 to include 652 common-
ly-used drugs under 27 therapeutic areas.
Introduction of this policy is expected to
result in a price drop of 10% or more for
about two-thirds of essential drugs avail-
able in the Indian market.11,12
SUMMARY AND CONCLUSION
Many essential medicines policies and
programmers are based on human rights
principles and can contribute valuable ex-
perience to the international human rights
community in its task of practical implemen-
tation. National medicine programmers
can be used to promote access to essential
medicines as part of health care systems.
Issues of human rights affect the relations
between the State and the individual; they
generate State obligations and individual
entitlements. The promotion of human
rights is one of the main purposes of the
UN. For example, the WHO Constitution
of 1946 says that “The enjoyment of the
highest attainable standard of health is
one of the fundamental rights of every hu-
man being without distinction of race, reli-
gion, and political belief, economic or so-
cial condition.” Article 25.1 of the Universal
Declaration of Human Rights (1948) says
that “Everyone has the right to a standard
of living adequate for the health of himself
and of his family, including food, clothing,
housing and medical care and neces-
sary social services”. The right to health
is also recognized in many other interna-
tional and regional treaties, especially the
International Covenant on Economic, So-
 N. J. Comp. Law Vol. 5 (2) 2018 pp. 69-74 ISSN : 2393 - 9338

cial and Cultural Rights (ICESCR) of 1966,
an international treaty that is binding on
States parties (States that have acceded
to, signed, or ratified an international trea-
ty) and provides the foundation for legal
obligations under the right to health. In
the ICESCR, States parties “recognize the
right of everyone to the enjoyment of the
highest attainable standard of physical
and mental health”. Forty million deaths
have been reported in 1 year alone in
developing countries, one-third among
children under age 5, yet most leading
causes of death and disability can be pre-
vented or treated with cost-effective es-
sential drugs. Ten million die due to acute
respiratory infections, diarrhea diseases,
tuberculosis, and malaria; for all these
conditions safe, inexpensive, essential
drugs can be lifesaving. Essential medi-
cines are believed to be one of the most
cost-effective elements in modern health-
care and their potential health impact is
remarkable.

REFERENCES
1. Adhikari Nandita, “Law & Medicine”, Fourth edition 2015, Reprint 2017, Central Law Pub-
lication, Allahabad.
2. Sinha Manoj Kumar, “implementation of basic human rights”, Edition 2013, LexisNexis .
3. Patel BN, “Comprehensive guide of laws of human rights in commonwealth countries”,
Edition 2007, LexisNexis.
4. http://www.who.int/medicines/areas/human_rights/en/ .
5. .http://www.who.int/medicines/technical_briefing/tbs/2014_humanrightem_rdg_prs/en/.
6. .https://www.ohchr.org/EN/pages/home.aspx.
7. McHale Jean, Fox Marie, Murphy John, “Health Care Law text and materials”, First Edi-
tion 1997, Reprint 2001, Sweet & Maxwell, London .
8. Baker Brook K., “Patents, Pricing, and Access to Essential Medicines in Developing
Countries”, American Medical Association Journal of Ethics, July 2009, Volume 11, Number 7:
527-532, available at https://journalofethics.ama-assn.org/article/patents-pricing-and-
access-essential-medicines-developing-countries/2009-07
9. National List of Essential Medicines of India 2011.
10. Sellin Jennifer, “Access to Medicines: The Interface Between Patents and Human Rights”, 1st
Edition 2014, Intersentia Ltd.
11. Hestermeyer Holger P., “Human Rights and the WTO: The Case of Patents and Access
to Medicines”, 1st Edition 2007, Oxford University Press, Oxford London.
12. Lee Joo-Young, “A Human Rights Framework for Intellectual Property, Innovation and
Access to Medicines”, 1st Edition 2017, Routledge, New York.

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 N. J. Comp. Law Vol. 5 (2) 2018 pp. 75-80 ISSN : 2393 - 9338

JUDICIAL ACTIVISM REGARDING

CHILD TRAFFICKING
Sudhakar Prasad Tripathi* & Ved Prakash Rai**1
*Research Scholar Department of Law NGB Vishwavidyalay Allahabad
** Dr. Ved Prakash Rai Assistant Prof. Department of law Deen Dayal Upadhyay Gorakhpur University, Gorakhpur
Ex- Associate Professor (Head & Dean) NGB Vishwavidyalay Allahabad

Email : sptlaw23@gmail.com

ABSTRACT

This paper is aimed to the exploring the role of judiciary regarding to child traffick-
ing. The role of India judiciary and the scope of judicial interpretation have expended
remarkably in recent times, partly because of the tremendous growth of statutory in-
tervention in the present era. The judiciary plays an important role in the protection of
fundamental rights of the citizen and non-citizen alike. The twine safeguard of equality
before law and equal protection of laws are acknowledge as two of the most important
pillars of Human Rights of the universe of freedom that is where ever freedom to assert
human rights is recognized, whether under an unwritten or a written constitution.

In the modern era judicial Activism emerged as tool for curbing child trafficking from
grass root level. Child trafficking refers to the recruitment, transportation, transfer, har-
boring or receipt of persons, by means of the threat or use of force or other forms of
coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of
vulnerability or of the giving or receiving of payments or benefits to achieve the con-
sent of a person having control over another person, for the purpose of exploitation.
An overview of major laws came to conclusion that child is a person who is below 18
years of age.

Key Words : Costs Associated With The Court- Procedures, Direct Costs, Social
Costs, Transaction Costs.

PAGE : 10 REFERENCES : 08

I NTRO DU C TION cipally in Article 51, which occurs in part IV

India is the largest democracy in the
world, sovereign, socialist, secular, demo-
cratic and republic with a comprehensive
charter of rights written into its constitution.
The Indian constitution lays down base on
which its foreign policy should be con-
structed and its international obligation re-
spected. These bases are articulated prin-
of the Indian Constitution.
When the judiciary, under the guise of in-
terpreting the law, goes a step beyond,
and ends up giving the country new bind-
ing law, which is usually different from
the existing one then it constitute judi-
cial activism. Child trafficking shall in-

• 75 •
 N. J. Comp. Law Vol. 5 (2) 2018 pp. 75-80
clude, at a minimum, the exploitation of
the prostitution of others or other forms
of sexual exploitation, forced labor or
services, slavery or practices similar to
slavery, servitude or the removal of or-
gans. What is very disturbing is that the
available evidence indicates that one
third of people exploited in flesh trade
are children/minor.
Trafficking in India generally routs from
Bangladesh, Nepal and internally as
well. The victims, however, are sold or
transferred for being exploited. The de-
mand of trafficked children generally
comes from the commercial sector, be it
for prostitution, sex tourism, bar dancer,
labor exploitation, pornography etc. this
trafficking has a heavy cost to pay. Traf-
ficked children’s are vulnerable to HIV/
AIDS infection, malnutrition, drug ad-
diction, high risk abortion and teenage
pregnancies. It has become a threat to
society as well because it involves not
only criminals, but law enforces as well.
Traffickers not only include strangers
and unfamiliar persons, but also include
family, Guardians, institutions and rela-
tives. Despite of the fact that constitu-
tion of India itself prohibits trafficking
and various other laws have been en-
acted protecting children’s right, judici-
ary being instrumental and in initiating
government action on this issue, vari-
ous government policies and plan have
been framed several NGO’s have been
setup to deal with these problems, still
the fact remains that trafficking not only
exit has also acquire grave dimensions
worldwide in the context of globaliza-
1. Abbas Hoveyda, Indian Government & Politics, Person Education India, New Delhi,2010, p 149
2. AIR 1997 SC 699
• 76 •
ISSN : 2393 - 9338
tion. The concern of prevention and
redressal is not an easy task and has
become more difficult because of its
connection with other extreme forms of
exploitation.
Research Anthology
This paper is based on the analytical
study on the cases decided by the Su-
preme Court relating to child trafficking.
The analysis of case law depend upon
the view of Supreme Court about relevant
cases.
Judicial Intervention in child
trafficking
The scope of judicial intervention in India
is limited, while in USA it is up to the court
to review, whether due process has been
followed in restricting life, liberty and
property1. In the last 20 years or so, the
Supreme Court and High Courts have en-
tertained various cases under the PIL and
tried to enforce the policy protecting pub-
lic interest. Earlier, it was common view of
masses that the parliament is the sover-
eign body and it can override not only the
executive vis-a-vis the judiciary but also
the constitution
The case of M.C. Mehta vs. State of Ta-
mil Nadu2 is a famous child labor case, in
which M.C. Mehta brought a petition be-
fore the Supreme Court by a way of a PIL,
under Article 32 of Constitution of India.
The petition was related to the problem
of employment of children working in the
factories manufacturing safety matches
in Kamraj District of Tamil Nadu. From the
affidavit of the state, it appears that as on
31st December, there were 221 registered
 N. J. Comp. Law Vol. 5 (2) 2018 pp. 75-80
factories making safety matches in the
area employing 27338 workers of whom
2941 were children.3 Mr. Mehta brought
this matter of child employment before
the court for receiving judicial considera-
tion. In this case, Supreme court realize
that the work in factory is hazardous one,
in spite of prohibiting the employment of
children asked the employer to 60% of
wages of an adult workmen working in
the same unit. Realizing hazard of employ-
ment, the court further asked the employer
for introducing the insurance scheme for
which the contribution will be given by the
employer alone.
The landmark case in which Supreme
Court entertained a letter, sent by post as
Public Interest Litigation (PIL) was People’s
Union for Democratic Rights vs. Union of
India,4 a petition was brought against gov-
ernmental agencies which questioned the
employment of underage laborers and the
payment of wages below the prescribed
statutory minimum wage-level to those in-
volved in the constructions of facilities for
the then upcoming Asian Games infrastruc-
tures in New Delhi. Both the cases have
already been discussed earlier. The court
took serious exception to these practices
and ruled that they violated constitutional
guarantees. The employment of children in
construction related jobs clearly fell afoul of
the constitutional prohibition on child labor
and the non-payment of minimum wages
was equated with the extraction of forced
labor.
The judiciary has interpreted the aforesaid
laws, in following landmark cases. It was cat-
3. AIR 1999 SC 417
4. 1982 AIR 1473, 1983 SCR (1) 456
5. 1987(4) BomCR171
6. Writ Petition (civil) 951 of 1989
7. 1993 AIR 217, 1993 SCR(1) 594
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ISSN : 2393 - 9338
egorically stated in Public at Large Vs. The
State of Maharashtra and Ors5 by Honor-
able High Court of Bombay that the traffic in
children is not confined only to what larger
scale than innocent Members of this House
may be aware in what is known as White
Slave traffic, namely, the buying and selling
of young women including minor girl for ex-
port or import, from one set of countries to
another; and their permanent enslavement
or servitude to an owner or proprietor of the
establishments of commercialized. In ad-
dition to this it was held by Honorable Su-
preme Court that a proper cell be created
by Women and Child Welfare Department
of the State of Maharashtra in order to reha-
bilitated victim of trafficking in society.
In Goodricke Group Ltd v Center of West
Bengal6 , the Court held that it would be
for the Centre and State/Union Territories
to raise necessary resources to achieve
the goal of providing free education. Re-
cently Article 21-A has been inserted in
the India Act, 2002 which provides that
the state shall provide free and compul-
sory education to all children of the age
of six to fourteen years in such manner as
the state may, by law, determine.
In Unni Krishnan J.P. v State of Andhra
Pradesh, 7 Justice Mohan observed
“in educational institutions which are
seed-beds of culture, where children in
whose hands quiver the destinies of the
future, are trained. From their ranks will
come out when they grow up states-
men and soldiers, patriots and philoso-
phers, who will determine the progress
of the land.
 N. J. Comp. Law Vol. 5 (2) 2018 pp. 75-80
In the case of Bachpan Bachao Andolan
vs. Union of India & others, the court ex- 8
amined the issue of exploitation of chil-
dren in Indian circuses. The court has
been held that “in order to implement the
fundamental rights of the children under
Article 21-A of the constitution. It is imper-
ative that the fundamental rights.”
One important case, in which Supreme
Court entertained a letter, sent by post as
public interest litigation was the People's
Union for Democratic Rights v. Union of
India Also known as the Asiad Workers
9
case. The Supreme Court held that though
the Employment of Children Act, 1938 did
not include the construction work on pro-
jects because the construction industry
was not a process specified in the Sched-
ule to the Act, yet, such construction was
a hazardous occupation and under Art.24
children under 14 could not be employed
in a hazardous occupation. The right of
a child against exploitation under Art.24
was enforceable even in the absence of
implementing legislation, and in a public
interest proceeding
They have no faith in the existing social
and economic system”. A high water
mark in the application of the Article 24
of the Constitution was reached in the
decision of the Court in Salal Hydro Pro-
ject v. Jammu and Kashmir
the Court reiterated the above stand. The
Court maintained that child labour is an
economic problem. Poor parents seek to
argument their meager income through
employment of their children. So, a to-
8. Writ Petition (civil) No.51 of 2006
9. 1982 AIR 1473
10. AIR 1984 SC 177, SCR 1983 (2) 473
11. 1986 AIR 1773, 1986 SCR (3) 443
12. 1987 AIR 656, 1987 SCR (1) 870
13. 1984 AIR 469, 1984 SCR (2) 795
ISSN : 2393 - 9338
tal prohibition of child labour in any form
may not be socially feasible in the prevail-
ing socio-economic environment. Article
24 therefore, puts only a practical restric-
tion on child labour. The Court further ob-
served that so long as there is poverty and
destitution in this country, it will be difficult
to eradicate child labour.
In Sheela Barse v. Union of India,11
Ms. Sheela Barse, a dedicated social
worker took up the case of helpless chil-
dren below age of 16 illegally detained in
jails. She petitioned for the release of such
young children from jails, production of
information as to the existence of juvenile
courts, homes and schools and for a di-
rection that the District judges should visit
jails or sub-jails within their jurisdiction to
ensure children are properly looked after
when in custody. The Court observed that
children in jail are entitled to special treat-
ment. Children are national assets and
they should be treated with special care.
The Court urged the setting up of remand
and juvenile homes for children in jails. In
Sheela Barse v Secretary Children Aid
Society12 the Supreme Court came for-
ward to protect the rights of the children
in the observation homes.
In Lakshmi kant Pandey v Union of In-
dia,13 A letter was addressed by one Laxmi
10
wherein Kant Pandey, an advocate practicing in
this Court, complaining of mal-practices
indulged in by social organizations and
voluntary agencies engaged in the work
of offering Indian children in adoption to
foreign parents. This letter was treated as
• 78 •
 N. J. Comp. Law Vol. 5 (2) 2018 pp. 75-80
a writ petition and Supreme Court held
that any adoption in violation of or non
compliance with may lead adoption to
be declared invalid and expose person
concerned with the strict action includ-
ing prosecution. For years, Social activists
have used these directions to protect chil-
dren and promote desirable adoptions.
The Government of India framed a nation
policy in this regard.
Human Rights are derived from the dig-
nity and worth inherent in the human
person. Human right and
tal freedom have been retreated by the
Universal Declaration of Human Rights.
Right of the child to development hinges
upon elimination of prostitution. Success
lies upon effective measures to eradicate
root and branch of prostitution. In Bach-
pan Bachao Andolan v Union of India
writ petition filed by HRLN, Suprem Court
on 18.04.2011 has ordered for implemen-
tation of suggestions put forth during the
hearing of this case, which will introduce
significant reforms in existing child pro-
tection regime. The petition was originally
brought in 2006 on issue of abuse and ex-
ploitation of children in circus industry.
Court has ordered Central Government
to bring a notification prohibiting employ-
ment of children in circus, to conduct
raids to rescue children already working
in circuses and frame proper scheme for
their restoration. During the hearing in this
case, several recommendations were put
forth by petitioner and respondent, aimed
on reforming existing legal and procedur-
al mechanism on child protection. This re-
cent order is just one among the several
14. Writ Petition (civil) No.75 of 2011
15. 1990 AIR 1412, 1990 SCR (2) 861
16. 1990 AIR 292, 1989 SCR Supl.(2) 173,
17. AIR 2004 SC 3566
ISSN : 2393 - 9338
orders which may be given by Hon’ble
Supreme Court in due course of time as
Hon’ble Court has made clear its intention
to deal with issue of children’s exploitation
in a long term and systematic manner.
Assuring to deal with children’s exploita-
tion firmly, Supreme Court has observed:
“We plan to deal with the problem of children’s
exploitation systematically”.
Vishal Jeet v. Union15 of India Supreme
Court in this case deals with some semi-
nal questions relating to the sexual ex-
fundamen- ploitation of children. Here it has been
observed that it is highly deplorable and
heart rending to note that many poverty
stricken children and girls in the prime
age of youth are taken to the ‘flesh mar-
ket’ and forcibly pushed into “flesh trade”
which is being carried on in utter violation of
14
all canons of morality, decency and digni-
ty of mankind. In Gaurav Jain v. Union of
India,16 The Supreme Court held that the
children of the prostitutes have the right
to equality of opportunity, dignity, care,
protection and rehabilitation so as to be
part of the mainstream of social life with-
out any social-stigma attached on them.
The Court directed for the constitution of
a committee to formulate a scheme for
the rehabilitation of such children and
child prostitutes and for its implementa-
tion and submission of periodical report
of its Registry. Sakshi v Union of India17
In this Public Interest Litigation matter,
the Supreme Court of India asked the
Law Commission to consider certain im-
portant issues regarding sexual abuse of
children submitted by the petitioner and
the feasibility of amendment to 375 and
376 IPC.
• 79 •
 N. J. Comp. Law Vol. 5 (2) 2018 pp. 75-80
Prerana Vs. State of Maharashtra and
Ors 18
that children who are being likely to
be grossly abused, tortured or sold for the
purpose of sexual abuse or illegal acts
they will have to be produced before the
Child Welfare Committee. Furthermore,
the H'onble High Court of Bombay gave
directions to state for Rehabilitation these
victims of trafficking.
In the famous Freddy Peats case where
Freddy Peats was running a racket in child
sex abuse for years, maintained destitute
children in his orphanage in order to offer
them to the European Sex Tourists who
regularly came to Goa to have sex with
these children and get huge amount in
return of that. The case was handled by
Sheela Barse the child right activist whose
intervention in this case led to child friend-
ly procedures by the trial court.
CONCLUSION
The brief survey of the above mentioned
cases shows that the activism of the Indi-
an Supreme Court to protect the children
from various type of exploitation. Although
the Supreme Court made laudable direc-
tions and suggestions in many instances to
protect basic rights of poor children, unfor-
tunately these directions and suggestions
are not followed and implemented by the
government machinery effectively. In this
regards, the performance of the Indian Ju-
diciary stands out as a signal contribution to
the implementation of human rights gener-
ally and that of Child Rights in particular.
As such in the M.C. Mehta v. State of Tamil
Nadu and Goodricke Group Ltd v Center
of West Bengal Supreme Court of India
emphasized on national Constitution and
18. 2003 Bom CR Cri, (2003) 2 BomLR 562
• 80 •
ISSN : 2393 - 9338
international instruments, including the
Convention on the Rights of the Child, the
Indian government is required to ensure
that children do not engage in hazardous
work. In Lakshmi Kant Pandey v Union of
India with object of ensuring the welfare of
the child J. Bhagwati directed the Govern-
ment and various agencies to follow some
principles as their constitutional obligation
to ensure the welfare of the child. Also judici-
ary has taken the lead to save the child from
exploitation and improve their conditions.
To mention a few, the Asiad case (1981),
L. K. Pandey case (1994), M.C. Mehtas case
(1991), Vishal Jeet v. Union of India (1990),
and Gaurav Jain v. Union of India (1997) are
some of the famous decisions where the ju-
diciary has shown enough courage to up-
hold the interests of the children and spared
no one to improve the working conditions
of the child workers. The judiciary has al-
ways made concrete efforts to safeguard
them against the exploitative tendencies of
their employer by regularizing their working
hours, fixing their wages, laying down rules
about their health and medical facilities. The
judiciary has even directed the states that it
is their duty to create an environment where
the child workers can have opportunities to
grow and develop in a healthy manner with
full dignity in consensus of the mandate of
our constitution.
Moreover, Non-Governmental Groups can
act as a watchdog on government pro-
grams, keeping vigil for corruption, waste,
and apathy. Neither standing alone is suf-
ficient. Child trafficking is a vast, pernicious,
and long-standing social ill, and the tenacity
of that must be attacked with similar tenac-
ity; anything less than total commitment is
certain to fail.
N. J. Comp. Law Vol. 5 (2) 2018 pp. ISSN : 2393 - 9338

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 N. J. Comp. Law Vol. 5 (2) 2018 pp. ISSN : 2393 - 9338
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• 82 •
 N. J. Comp. Law Vol. 5 (2) 2018 pp. ISSN : 2393 - 9338

Volume No. 5, Issue No. 2, 2018 DEC 2018

Reviewed Articles C  o  n  t  e  n  t  s

1 HUMAN RIGHTS OF SENIOR CITIZENAMIDST FAMILY DISINTEGRA- 1

TION AND SOCIAL DISORGANISATION: Contemporary Issues In Social
Justice Perspectives
S. C. Roy

2 THE SURROGACY IN INDIA ISSUES & PERSPECTIVES 14

Avimanyu Behera

3 TIME TO RECONSIDER THE LAW OF PATENTS OF ADDITION 30

P. P. Rao

4 DEVELOPMENT INDUCED DISPLACEMENT AND RESETTLEMENT LAW 37

IN INDIA: AN ANALYSIS ABOUT IT
Sudipta Patra

5 YASH GHAI ON CULTURAL RELATIVISM 43

Ajay Kumar Singh

6 LAWS RELATING TO CORPORATE CRIMINAL LIABILITY IN INDIA 53

Shail Suta

7 ENVIRONMENTAL SUSTAINABILITY 59
AND SOCIAL JUSTICE

Pradeep Kumar

8 ACCESS TO ESSENTIAL MEDICINE AND 69

HUMAN RIGHTS CONCEPT IN INDIA

Abhishek Kr. Tiwari & Nemi Chand Saini

9 JUDICIAL ACTIVISM REGARDING CHILD TRAFFICKING 75

Sudhakar Prasad Tripathi & Ved Prakash Rai

JPMS Society
22, Gaur Galaxy, Plot No 5, Sec-5, Vaishali NCR,
Ghaziabad, DELHI NCR - 201010 (INDIA)
Email : manisha_npp@yahoo.com
manishanpp.com
: jpms
• 83 •