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LEGAL DESIRE QUARTELY INTERNATIONAL JOURNAL ON LAW, ISSUE 19 TH
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Editorial Board
Associate Editors:
 N.B. Bardhan, Director-Central Forensics Science Laboratory, Central Bureau of
Investigation, New Delhi.
 Dr. Carlos A. Gutierrez, Director and Instructor of True Forensic Science, USA.
 Pallavi Pratap, Advocate on Record, Supreme Court of India
 Prof. Richard Albert, Professor of Law, Boston College Law School.
 Subhash Shete, Legal Head at Valvoline India
 Sheetal Vohra, Managing Partner- Vohra & Vohra
 Prof. Lisa James, Professor of Law, Staffordshire University, United Kingdom
 Ritu Gupta, Senior Counsellor, Thomson Reuters
 Dr. Asha Srivastava, HOD & Principle Scientific Officer (PSO) in Forensic Psychology
Division, CFSL, Central Bureau of Investigation, New Delhi.
 Dr. Amitabh Biswas, Assistant Professor (Under United Nations Development
Programmed), Forensic Chemistry & Toxicology Division, Dept. of Chemistry, College of
Natural Sciences, Arba Minch University, Ethopia.
 Prof. (Dr.) Prashant Agrawal, HOD, Division of Forensic Science, SBAS, Galgotias
University, Noida.
 Dr. Mohineesh Chandra, Senior Scientific Assistant, Forensics Science Laboratory, New
Delhi.
 Dr. Pradeep Raghav, HOD-Orthodontics, Subharti Dental College, Meerut
 Ravinder Chauhan, Senior Scientific Assistant, Ballistics Division (CFSL) Central
Bureau of Investigation, New Delhi
Editorial Board Members:

 Salman Khurshid, Senior Adv, Supreme Court of India & Former Law Minister of India.
 Panchal Ashutosh Kumar, Sub Inspector (Fingerprint), National Crime Record Bureau
(NCRB), Ministry of Home Affairs, New Dehli.
 Dr. Vivekanshu Verma, Associate Consultant, Department of Emergency & Trauma Care,
Medanta Hospital.
 Dr. Mohammad Abdurrahaman Khan, Senior Resident, Department of Forensic
Medicine & Toxicology, King George’s Medical University, Lucknow, (U.P).
 Dr. Sonia Kaul Shali, Associate Professor, United World School of Law, Karnavati
University, Gandhinagar.
 Nada Mohammed Ali Ali ElBendary, Toxicologist (Drug & Poisons Expert), Forensic
Science Laboratory, Ministry of Justice in Egyptian Govt.
 Naveen Parihar, Legal Officer, Shree Cement limited, Beawar, Rajasthan.
Executive Assistants: Ritwika Pati, Mohd Ijas, Swagata Banerjee

Asst. Editor: Sanjana Chakraborty
Managing Editor: Bhagyashree Sonwane, Research Associate- Harvard Law Clinic, USA
Editor-in-Chief: Anuj Kumar, Founder- Legal Desire Media & Publications
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LEGAL DESIRE INTERNATIONAL JOURNAL ON LAW (ISSN: 2347-3525) www.legaldesire.com
Contents
Freedom of Press Pro Rata Article 19 ....................................................................................................................... 2

SACHIN VERMA & ANSHIMA SINGH
RIGHT TO PRIVACY: ISSUES & CONCERN ................................................................................................................ 10
UJJWAL KISHORE RAJORA
PARISHA SINGH10
UNIFORM CIVIL CODE ............................................................................................................................................ 16
MOHAMMAD SALEEM
ANTI DUMPING REGIME IN INDIA .......................................................................................................................... 30
NIHARIKA SHARMA & JAYATI CHAUHAN
FREEDOM OF SPEECH ............................................................................................................................................ 36
MOUMITA SEN
A CRITICAL APPRAISAL OF UNIFORM CIVIL CODE WITH SPECIAL EMPHASIS ON RECENT ISSUES .......................... 47
UNANZA GULZAR
A to Z of TRIPS: AN AGREEMENT ON TRADE RELATED ASPECTS OF INTELLECTUAL PROPERTY RIGHTS ................. 54
Dr. Nandan Sharma & Ms. Devshree Sharma
TALAQ-E-BIDDAT: THE INVISIBLE SHADOW............................................................................................................ 68
PIYUSH & SATYABHAMA KAUSHIKEI
JUDICIARY & THE FOURTH ESTATE ......................................................................................................................... 79
ADITYA PRAKASH & AAYUSHI CHAUDHARY
UNLOCKING NEW DIMENSIONS IN INDIRECT TAXATION REGIME.......................................................................... 90
YASH JAIN
PROCESS OF APPOINTMENT OF JUDGES IN HIGHER JUDICIARY IN INDIA………………………………………………………….100

MOHD. IMRAN & DR. RASHMI KHORANA NAGPAL
1
Freedom of Press Pro Rata Article 19

SACHIN VERMA & ANSHIMA SINGH1
Introduction
A free press is an essential element for democracy, without free press a democracy cannot work effectively
due to this reason a free press is treated as oxygen for democracy.
The press serves as a powerful antidote to any abuse of power by government officials and as a means
for keeping the elected officials responsible to the people whom they were elected to serve. The
democratic credentials of a state are judged today by the extent of the freedom press enjoys in that state,
At this present juncture of time, as we approached the sixth decade of our freedom, it is essential to keep
in mind, the pertinence of freedom of press, which is regarded as the fourth pillar of democracy. 2
History of freedom of press
The history of freedom of the press during the past two centuries from its inception in the 1780s to 1980s
that the Government of India took measures both during the pre and post-independence period to curtail
the freedom of the press, there were more Governor Generals and Viceroys who passed laws imposing
restrictions on the press than those who relaxed such restrictions. 3
After independence also, laws continued to be passed imposing restrictions on the press. There was always
confrontation between the government and the press with the press waging a battle to preserve its freedom
against the powers of the government, it is a tribute to the resilience of the press in the face of such heavy
odds that it continued to grow in numbers as well as influence throughout this period, this is because the
press from the beginning had the sanction of public opinion and the gradually developing democratic
tradition in India.4
What is freedom of press?
Freedom means free from control. It simply means freedom to speech his expression his felling, his
thought you can express. Learned author T.M. COOLEY in his book A Treaties on the constitutional
limitations,5 while defining “freedom of speech and press” has stated thus: “the constitutional liberty of
1
Student, Law College Dehradun, Uttaranchal University
2
International journal of research in management and social vol,1, Issue 1 (press freedom in India : A legal study by Zafreen
Beguam)
3
Sodhganga, chapter 13 of history of freedom of press.
4
Ibid
5
See T.M. cooley, A Treaties on the constitutional limitations, 1 st Indian End.2005.
2
speech and the press, as we understand it, implies a right to freely utter liberty and publish whatever the
citizen may please, and to be protected against any responsibility for publication, except so far as such
publications, from their blasphemy, obscenity or scandalous character, may be public offence, or as by
their falsehood and malice and they may injuriously affect the private character individuals or to state, the
same thing in somewhat different words , we understand liberty of speech and of the press to imply not
only liberty to publish, but complete immunity for the publication, so long as it is not harmful in its
character, when tested by such standards as the law affords, for these standards, we must look to the
common law rules which were in force when constitutional guarantees were established” 6
Article 10 of the European convention for the protection of human rights and fundamental freedom
provides7 –
1. Everyone has rights of freedom of expression. This right shall include the freedom to hold opinion
and to receive and impart information and ideas without interference by public authority and
regardless of frontiers. This article not prevent state from requiring the licensing of broadcasting,
television and cinema enterprises:
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject
to such formalities, conditions, restrictions or penalties as are prescribed by the law and are
necessary in a democratic society in the interest of national security territorial integrity or public
safety for the prevention of disorder or crime, for the protection of health or moral, for the
protection of the reputation or rights of others, for preventing disclosure of information received
in confidence or for maintaining the authority and impartiality of the judiciary.
Law related to freedom of press in India – In India freedom of press is implied from the freedom of
speech and expression guaranteed by Art 19(1)(a), there is no specific provision related to freedom of
press as such.8 The freedom of press is regarded as a “species of which freedom of expression is a genus9.”
Thus being only a right flowing from the freedom of speech, the freedom of press in India stands on no
higher footing than the freedom of speech of a citizen, and the press enjoys no privilege as such distinct
from the freedom of citizen.
The Supreme Court has laid emphasis in several cases on the importance of maintaining freedom of press
in democratic society. The press seeks to advance public interest by publishing facts and opinions without
which a democratic electorate cannot make responsible judgments. Article and news are published in the
6
T.M. Cooley, A Treaties on constitutional limitations, 1 st End. 2005, chapter XII “liberty of speech and of the press” p,422.
7
D.D. basu, commentary on Indian constitutional law, page no. 3650
8
M.P. Jain, Indian constitutional law 7th edition pg.,1026
9
Sakal papers v. union of India, AIR 1962 SC 305 : (1962) 3 SCR 842
3
press from time to expose the weaknesses of the government. This leads at times to the suppression of the
freedom of press by the government.
It is, therefore the primary duty of the courts to uphold the said freedom and invalidate all laws or
administrative actions which interfere with the freedom of the press contrary to the constitutional
mandate.10
In Printers (Mysore) Ltd. Vs Assistant commissioner Tax Officer,11 the Supreme Court reiterated that
through freedom of press is not expressly granted as a fundamental right; it is the implicit in the freedom
of speech and expression. Freedom of press has always been cherished right in all democratic countries
and press has rightly been described as the fourth estate. The democratic credentials of a state are judge
by the extent of freedom the press enjoys the state.
The supreme court has emphasized that the freedom of the press is not so much for the benefit of the press
as for as the benefit the general community because the community has a right to be supplied with the
information and the government owes a duty to educate the people within limits of its resources.
Article 19(1)(a) applies to citizens only and so a non-citizen running a newspaper can’t seek the guarantee
of this constitutional provision.12
Imposition of pre-censorship on a newspaper,13 or prohibiting it from publishing its own views or those
of its correspondents on a burning topic of a day, 14 constitute an encroachment on the freedom of speech
and expression. The freedom of speech and expression includes freedom to propagate ideas which is
ensured by freedom of circulation of a publication, as a publication is of little value without circulation.
Therefore, imposition of a ban upon entry and circulation of a journal within a State is restriction of Article
19(1)(a).15
Olivier v. Buttigieg,16 a Privy Council case from Malta, is interesting on the point of circulation. The
constitutional provisions in India and Malta regarding freedom of speech are practically synonymous. The
church authorities condemned ‘Voice of Malta’, a paper run by the opposition party. The Health Minister
thereupon issued a circular prohibiting the entry of the newspaper in the various hospitals and branches of
the Health Department. The entry of any other newspaper was not prohibited. The Privy Council decided
10
Indian Express newspaper (Bombay) P. Ltd, Vs Union of India, AIR 1986 SC 515 at 527 : (1985) 1 SCC 641.
11
(1994) 2 SCC 434.
12
M.P. Jain, Indian constitutional law 7th edition pg.,1026
13
Brij Bhusan vs.Delhi AIR 1950 SC 129: 1950 SCR 605.
14
Virendra Vs. State Of Panjab, AIR 1957 SC 896: 1958 SCR 308.
15
Ramesh Thappar Vs. State of Madras,AIR1950 SC 124: 1950 SCR 594.
16
(1966) 2 All E.R. 459.
4
that the Minister’s order amounted to a hindrance in the way of the editor of the paper in the enjoyment
of his freedom to impart ideas and information which is an essential part of the freedom of speech and
expression. The Privy Council refused to accept the argument that the hindrance was slight and that it
could be ignored as being de minimis.
International provision related to freedom of press- When the United Nations Organization came into
being, in which the rights to freedom of speech and the press were recognized and protected on a global
scale, there is many convention and declaration was passed on international level which is given blow-17
 The Universal Declaration on Human Rights (UDHR) in 1948 was acknowledged in Article 19:
“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold
opinions without interference and to seek, receive and impart information and ideas through any
media and regardless of frontiers”
 To concretize the Declaration, in order to create the legal basis for the respect, protection and
implementation in all the member countries when participating in the human rights system, the
UN General Assembly compiled the International Covenant on Civil and Political Rights
(approved in 1966 together with the International Covenant on Economic, Social and Cultural
Rights and they were put into force in 1976). Also in Article 19, the Covenant clearly says: “1)
Everyone shall have the right to hold opinions without interference. 2) Everyone shall have the
right to freedom of expression; this right shall include freedom to seek, receive and impart
information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in
the form of art or through any other media of his choice….”
The European Convention on Human Rights (Article 10), the American Convention on Human Rights
(Clause 13) of the African Charter on Human Rights and the rights of nations (Article 9) has
acknowledged the rights to freedom of speech and of the press. The Human Rights Charter of Asian
National approved by the Association of Asian Parliaments for Peace (AAPP) in Pataya (Thailand) in
November 2005, in Article 12, says “The freedom of opinion and the freedom of speech” provide quite
concretely the right to freedom of speech, similar to the content already provided in the UN human
rights documents.
Provision related to freedom of press in different countries- Law or provision related to freedom
of press is different from country to country -
17
Dr. Dang dung chi, chu thi Thuy Hang, International law on freedom of speech and freedom of press.
5
 In USA- In the U.S.A., the First Amendment, specifically protects a free press. The view
developed by the U.S. Supreme Court is that freedom of press includes more than merely serving
as a “neutral conduit of information between the people and their elected leaders or as a neutral
form of debate”
The prime purpose of the free press guarantee is regarded as creating a fourth institution outside the
government as an additional check on the three official branches---executive, legislature and the
judiciary.18 It is primary function of the press to provide comprehensive and objective information on
all the aspects of the country’s social, economic and political life. The press serves as a powerful
antidote to any abuse of power by government officials and as a mean for keeping the elected officials
responsible to the people whom they were elected to serve.
The democratic credentials of a state are judged today by the extent of the freedom press enjoys in the
state. DOUGLAS, J., of the U.S. Supreme Court has observed that “acceptance by Government of a
dissident press is a measure of the maturity of nation 19. Suppression of the right of the press to praise or
criticise government agents and to clamour and contend for or against change violates the First
Amendment by restraining one of the very agencies the framers of the U.S. Constitution selected to
improve the American society and to keep it free20. The freedom of speech and of the press is protected
not only from direct government encroachment but also from more subtle government interference. The
U.S. Supreme Court has emphasized that it has power to nullify “action which encroaches on freedom of
utterance under the guise of punishing libel.”21
 In Switzerland- article 17 of the Swiss constitution guarantees freedom of press, while Article 93
explicitly outlines the independence of broadcast media and the penal code prohibits public
incitement to racial hatred or discrimination, spreading racist ideology, and denying crimes against
humanity, the law does not specifically prohibit anti-Semitic speech or Holocaust denial, but there
have been convictions for such expression in the recent past. 22 In 2013, the European Court of
Human Rights (ECHR) ruled that a Swiss law against genocide denial violates freedom of
expression principles, The government announced an appeal to the Grand Chamber of the ECHR
in March 2014, and the case remained pending at year’s end.
18
New York Times vs.sulivan, 376 U.S.254; New York Times Company vs. United State,403 U.S. 713 (1971) (known as
pentagon papers case).
19
Terminiello vs. Chicago, 337 U.S. 214.
20
Mills Vs. Alabama, 384 U.S. 1.
21
Beauharnais vs. Illinois, 72 S. Ct. 1070.
22
See online https//freedomhouse.org
6
It is a crime to publish information based on leaked “secret official discussions,” particularly regarding
banking information. Public awareness of a 2006 transparency law remains low, and the law is rarely
used.23
 In Australia- Press freedom in Australia is not constitutionally guaranteed, but the High Court
has ruled that language in the constitution implies a right to freedom of expression, and the
government generally respects this principle. In the state of Victoria, press freedom is explicitly
protected under the Charter of Human Rights and Responsibilities.24
In October 2014, Parliament approved the National Security Legislation Amendment Act, which
introduces a 5-year prison sentence for any person who discloses information relating to “special
intelligence operations,” and a 10-year sentence if the disclosure would “endanger the health or safety of
any person or prejudice the effective conduct of a special intelligence operation.” Media freedom
advocates expressed concern that the legislation would discourage journalists from reporting on national
security issues.25
On the basis of above discussion, we can conclude it, the freedom of press in some countries is guaranteed
by the constitution and some countries it is provided by the court.
Reasonable restriction- Freedom of press is not specifically mention under Indian constitution it is
granted by court it is a part of freedom of speech and expression. While it is necessary to maintain and
preserve freedom of speech and expression in a democracy, so it is necessary to place some curbs on this
freedom for the maintenance of social order. No freedom can be absolute and completely unrestricted. 26
Accordingly, under article 19(2), the state may make a law imposing “reasonable restrictions” on the
exercise of the right to freedom of speech and expression “in interest of “the security of state, friendly
relations with foreign states, public order, decency, morality, sovereignty and integrity of India, or “in
relation to contempt of court, defamation or incitement to an offence”. Exercise of legislation power in
this respect by the state can be subjected to judicial review, with in limited ambit. 27
23
Ibid
24
see online on https//freedomhouse.org
25
Ibid
26
See Ramlila maidain Incident Vs. Home Secretary , Union of India, (2012) 2 MLJ 32 SC,2012 (2) SCALE 682 : (2012)
5SCC 1 (the right that springs from article 19(1) (a) is not absolute and unchecked . there can not any liberty absolute in
nature and uncontrolled in operation so as to confer a right wholly free from any restraint): Sahara India real estate corpn.
Ltd. Vs Securities and Exchange Board Of India, AIR 2012 SC 3829 (3838): (2012) SCC 603 : 2012 CrLJ 4548.
27
N.K. Bajpai Vs. Union of India, (2012) 4 SCC 653 (665): AIR 2012 SC 1310,also see mohammed Ajmai Mohammad
Amir kasab vs. state of Maharashtra, AIR 2012 SC 3565 (3662): (2012) 9SCC 1 (an action tending to violate another persons
right to life guaranteed under Article 21 or putting the national security in jeopardy can never be justified by taking the peal
of freedom of speech and expression.
7
The expression used in Article 19(2) “in the interests of “give a wide amplitude to the permissible law
which can be enacted to impose reasonable restrictions on the right guaranteed by the Art.19(1)(a) under
one of the heads mentioned in Article 19(2), No restriction can be placed on the right to freedom of speech
and expression on any ground other than those specified in Art.19(2). 28 The burden in on the authority to
justify the restrictions imposed.
Necessity of freedom of press: Press is called the fourth pillar of a state. And newspapers are called
people’s parliament. Newspapers and journals give us current picture of life, of things happening every
moment. Today right to information is considered one of the fundamental rights of a civilized society and
free flow of information is also vital for building a corruption free, accountable and transparent society.
Newspapers or press serve people with providing information. Hence their freedom is necessary in order
to keep people informed of the affairs going around otherwise people remain in the dark and in that case,
confusion, corruption and abuse of power hold firm in the society.
ROLE OF MEDIA IN DEMOCRACY
Good governance is an indeterminate term used to describe how public institutions conduct public affairs
and manage public resources. Governance is the process of decision making and the process by which
decisions are implemented (or not implemented)” Good governance is about the processes for making and
implementing decisions. It’s not about making ‘correct’ decisions but about the best possible process for
making those decisions. The concept of “good governance” centers around the responsibility of
governments and governing bodies to meet the needs of the masses as opposed to select groups in
society.29
Media usually refers to mass media, which is any medium that provides citizens with information
regarding all the current affairs of any area at a large scale. It is unbiased reporting of facts through print,
television, radio or Internet.
Traditionally and constitutionally, the media has no defined role in governance. It doesn’t have the power
to change any decisions made by the various arms of a state––the legislature, executive and the judiciary.
Yet, the media plays one of the most important roles in the functioning of any society. It amplifies the
voice of citizens and communicates their opinions to the lawmakers.
Access to information is essential for a democratic society because it ensures that citizens make
responsible, informed choices rather than acting out of ignorance or misinformation and information also
28
M.P. Jain, Indian Constitutional Law 7th edition, page no 1043
29
Online available on lawoctopas, role of media in democracy and good governance by ankitha praveen
8
serves a checking function. It is well known that media overlaps other functional areas of democracy and
governance. For example, support for media may yield results in governance activities, particularly those
related to decentralization, anti-corruption, and citizen participation in the policy process. The rule of law
may be further institutionalized by support for an independent media that keeps a check on the judiciary,
reports on the courts, and promotes a legal enabling environment suitable for press freedom. Free and fair
elections conducted through transparent processes require a media sector which gives candidates equal
access, and reports the relevant issues in a timely, objective manner.30
Conclusion - We can say on the basis of above research that a free press is like the watchdog in society
or country. Their impact is so powerful, that’s why their role is massive. And that is why freedom of press
is also necessary in order to know what is right, what is true and fair. By only free press we get access to
information and help to build a well-informed, see-through and responsible society. Press, for its part, as
a punctilious body of the society, should not misuse its freedom.
30
Ibid
9
RIGHT TO PRIVACY: ISSUES & CONCERN

UJJWAL KISHORE RAJORA31
PARISHA SINGH32
“India has physical boundaries in terms of its geographic location with other countries, but there was
no such ‘boundary' in the cyber world. "Our cyber boundary is not (yet) defined. We have to protect
our cyber boundaries also.33
In Modern Cyber World, computers and internet have become a vital part of human life. They have been
invented to make human life easy, but when you take each and every micro step towards making your life
easy, the internet asks you to give away some part of your individual privacy. So, now the main question
arising here is, whether human beings are ready to give away some part of their privacy directly or
indirectly on internet platforms and associated persons and organizations? The best example of above-
mentioned situations would be giant companies like Facebook, Twitter, Instagram, true-caller, and other
organization which always seek some sort of confidential information from the concerned users upon
accessing their websites, like true-caller always asks the concerned users to access their phone contacts,
messages, etc.
In United Kingdom (UK), Minister of state for Digital, Culture, Media & Sports (DCMS) spoke about the
new Data Protection Law (DPL) which would include the concept of ‘Right to Forgotten’ by companies.34
Thus, these giant corporates would no longer be able to reuse people’s data submitted and consented by
people for their one-time service. The said bill also expanded the ambit of “Personal Data” to include IP
address, internet cookies, and DNA. The Legislature of UK will also give the power to Information
Commissioner’s Office to impose fines of up to 17 million Euros or 4% of the global turnover of the
concerned entity along with criminal liability, for breach of the new DPL. This law envisages to meet the
parameters of this contemporary cyber world so that interest of citizens can be protected by not
endangering their privacy.
FACEBOOK TERMS AND CONDITIONS
In the “Statement of rights and responsibilities” of Facebook, clause 2 (1) says that
“For content that is covered by intellectual property rights, like photos and videos (IP content), you
specifically give us the following permission, subject to your privacy and application settings: you grant
us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that
you post on or in connection with Facebook (IP License). This IP License ends when the concerned user
deletes his IP content or his account unless his content has been shared with others, and they have not
deleted it.”
31
2nd Year B.A., LL.B, MAHARASHTRA NATIONAL LAW UNIVERSITY, MUMBAI
32
3rd Year B.A., LL. B, GUJARAT NATIONAL LAW UNIVERSITY
33
India yet to sign treaty with other countries on Cybercrime, says CBI special Judge the Hindu,
http://www.thehindu.com/sci-tech/technology/internet/India-yet-to-sign-treaty-with-other-countries-on-Cyber-crime-says-
CBI-special-Judge/article12546205.ece (last visited Dec 24, 2017)
34
Gov.uk. (2017). Government to strengthen UK data protection law - GOV.UK. [online] Available at:
https://www.gov.uk/government/news/government-to-strengthen-uk-data-protection-law [Accessed 8 Dec. 2017].
10
It is well-known fact that Facebook is the biggest player in the field of social networking and it uses third-
party applications and has partnerships with other global companies. Clause 2(1) gives a right to Facebook
to use content uploaded by users on its platform in a manner as it deems to be fit. Further, it extends
authority to Facebook to transfer users data to any other organization as it considers appropriate.
If the user wishes to delete any content from Facebook, first the user would have to delete that content
from his/her account and if the user has tagged someone then that concerned user also has to delete that
content.
PRIVACY AN EMERGING CONCEPT IN INDIA WITH RESPECT TO UK, USA, AND

EUROPE
Privacy was nowhere in the “news” with respect to India until the Aadhar Incident happened where
thousands of cases emerged in relation to the leaking of sensitive information containing the biometrics
of people. This incident has led to a 360-degree change in mindset of Indian citizen and now people are
questioning the government about the security of their personal information with the government
considering the recent incidents like “Wanna Cry ransomware” which has already led to a lot of chaos in
developed countries like UK, US, etc. by putting at stake the confidential information of the citizens of
this country.
India being a developing country is taking giant strides towards economic prosperity and growth which is
being acknowledged by many of the developed countries. However, India still lags behind in relation to
cyber security and data protection in comparison to the more technologically advanced countries of the
world. A total 50 incidents of cyber-attacks affecting 19 financial organizations have been reported from
November 2016 to June 2017 as stated by the Government of India.35 These attacks have been reported
majorly on Payment gateways or digital payment interfaces that include e-wallets like Paytm, Jio-Money,
etc. and these incidents have only been reported in relation to the financial sector and many unreported
incidents also take place in other sectors as well which have not yet come in front of the public eye. A
report by India.com mentions that a total of 1.71 lakh cyber-crimes were reported in India in the last three
and half years. Which means at least one cyber-attack was reported every 10 minutes in initial six months
of 2017.36
Reported by The Economic Times on 15 MAR, 2012, 05.15AM IST, ET BUREAU “About 112
government websites, including those of Bharat Sanchar Nigam Ltd, Planning Commission and Ministry
of Finance, were hacked in the last three months, minister of state for communications and IT Sachin Pilot
said in the Lok Sabha”37
35
Total of 50 cyber-attack incidents reported in financial sector: Govt The Indian Express,
http://indianexpress.com/article/technology/tech-news-technology/50-cyber-attack-incidents-reported-in-financial-sector-
govt-4777350/ (last visited Dec 24, 2017
36
One cybercrime in India every 10 minutes - Times of India The Times of India,
https://timesofindia.indiatimes.com/india/one-cybercrime-in-india-every-10-minutes/articleshow/59707605.cms (last visited
Dec 24, 2017)
37
112 government websites hacked in 3 months: Sachin Pilot The Economic Times,
https://economictimes.indiatimes.com/tech/internet/112-government-websites-hacked-in-3-months-sachin-
pilot/articleshow/12270733.cms (last visited Dec 24, 2017)
11
There is technology to obtain a person’s fingerprint, say from a book he/she is reading or from high-
resolution images posted on the social media platform. In 2014, for instance, hacker Jan Krissler recreated
the fingerprints of Germany’s Defense Minister Ursula von der Leyen from close-up photographs in a
government press release.38 Advances in technology mean stolen prints can be used to make the three-
dimensional facsimile.
Keeping all these attacks in mind our beloved PM is preparing an Information aquarium in which
Biomatrices and other confidential data of the citizens would be stored. This information aquarium will
be online with high cybersecurity. The question here is not why the government is collecting our personal
data. However, the question here is how secure will be that Information Aquarium when cyber-attack like
“Wanna Cry ransomware” have already breached the security level of the Indian government.
In respect of new cyber-attack that happened in 2017 like “Wanna Cry ransomware” which almost netted
52 bitcoins or about 130000$. Shadow Breakers is another infamous name in the domain of cybersecurity,
this mysterious group 1st launched its identity in August 2016 claiming to have breached the spy tools of
the elite NASA-Linked operation known as the Equation Group. Further, they also offered a sample of
stolen data of NASA.39
On March 7 “WikiLeaks CIA Vault 7” another mysterious hacker group which published 8,761 trove
documents allegedly stolen from the CIA that contains hacking tools. Revelation included iOS and
Android vulnerabilities, bugs in windows, and the ability to turn some smart TVs into listening devices 40
Acknowledging the above mentioned incidents and to ensure the protection of its citizen's data, United
Kingdom (UK) has decided to overrule its previous data protection law 41 i.e. Data Protection Act, 1998
by passing new Data protection law in 2018 this bill will include a high level of fine for breach of any
data and also give the “Right to forgotten” to the citizens of UK.
Information and Technological Act 2000 42 hereafter referred to as (IT Act) provides some sort of relief
to Indian citizens. This act, however, does not provide proper armor to the Indian citizen to defend them
self from the hackers who are sitting outside the territorial jurisdiction of India. The main question that
arises here is that, how would this act punish a criminal who is operating beyond the limits of India’s
territorial jurisdiction and the IT Act.
In spite of having IT Act Aadhaar information was leaked and one of the best examples of this would be
Suvidhaa-Axis Bank Case on February 11, a YouTube clip illustrating such a replay attack was divulged
online. On February 24, UIDAI lodged a criminal complaint, contending that an employee of Suvidhaa
Infoserve had used Axis Bank’s gateway to UIDAI’s servers to conduct 397 biometric transactions
38
Fingerprint 'cloned from photos', BBC News (2017), http://www.bbc.com/news/technology-30623611 (last visited Dec 26,
2017).
39
Andy Greenberg et al., Hackers Claim to Auction Data They Stole From NSA-Linked Spies WIRED (2017),
https://www.wired.com/2016/08/hackers-claim-auction-data-stolen-nsa-linked-spies/ (last visited Dec 26, 2017).
40
Lily Newman et al., The Biggest Cybersecurity Disasters of 2017 So Far WIRED (2017),
https://www.wired.com/story/2017-biggest-hacks-so-far/ (last visited Dec 26, 2017).
41
UK data protection laws to be overhauled, BBC News (2017), http://www.bbc.co.uk/news/technology-40826062 (last
visited Dec 26, 2017).
42
Dot.gov.in (2017), http://www.dot.gov.in/sites/default/files/itbill2000_0.pdf (last visited Dec 26, 2017).
12
between July 2016 and February 2017 using a stored fingerprint. Axis Bank representatives did not
respond to requests for comment.
One of the solution to tackle this type of situation is Bilateral extradition treaty with other countries. Till
now India is only part of 42 Bilateral extradition treaty out of 195 countries in the world. 43 India has
Extradition Arrangements with 9 countries including Sweden, Italy, etc. The Extradition Arrangements
with Italy and Croatia confine to Crimes related to Illicit Traffic in Narcotics Drugs and Psychotropic
Substances owing to the fact that India, Italy, and Croatia are parties to the 1988 UN Convention against
Illicit Traffic in Narcotics Drugs and Psychotropic Substances. 44
AN ANALOGY BETWEEN THE LAWS OF UK, EU & INDIA
After creating an analogy and comparison between the laws of India and laws of developed countries like
the UK, EU and US give a vivid picture of Indian scenario that Indian legislature needs to acknowledge
the requirement of Data Protection Act to maintain the law and order in this contemporary world. We all
can acknowledge that UK has its Data Protection Act of 1998 which is solely designed for the protection
of privacy and data of the UK citizens furthermore it is announced by the UK Minister for state for Digital,
Culture, Media & Sports (DCMS) to overruled it previous Data Protection Act to cop up with the
requirement of this contemporary world.
According to the UK Data Protection Act of 1998, the people and Organizations tangled in storing
personal data shall have to register with the information commissioner, who is been appointed by the
government as an officer of the government in order to keep a check and balance on the rules and
regulations adopted by the Act. The Act provides a certain restriction in the gathering of personal and
sensitive information. Any personal data or information can be demanded only for one or more lawful
purposes and the same data or information cannot be further processed or used for multiple purposes apart
from the task/tasks that it was required for. The personal data should not be excessive and the data or
information which is been demanded should be relevant and correct and adequate for the purpose/purposes
it is needed and to be processed. It is quite appreciable and indispensable fact that UK, US, EU are trying
to enhance their Data Protection Act so that no criminal can abscond from the law and justice can be
delivered.
The US has quite a different approach when it comes to Data Protection of its citizen. They follow the
sectorial approach in which sensitive data of their citizen are grouped in classes on the basis of their utility
in the US, thus they have a concept of the mixed legislature when it comes to Data Protection.
EU has its own Data Protection Act which is quite advance and have the capability to cop up with the
requirements of this contemporary world. European Union Data Protection Act (hereafter referred as
EUDPA) is applicable on all countries who are the member of EU, further, it is applicable on those
company or countries who want to trade with EU. Hence it is indispensable fact that if India wants to do
trade with EU then India needs to comply with the laws of EU. Recently EU official has published a list
of adequate countries which Andorra, Argentina, Canada (commercial organizations), Faeroe
Islands, Guernsey, Israel, Isle of Man, Jersey, New Zealand, Switzerland, and Uruguay but India
43
MEA | List of Extradition Treaties/Arrangements, Mea.gov.in (2017), http://www.mea.gov.in/leta.htm (last visited Dec 26,
2017).
44
id
13
still needs to work on its Data Protection laws to enrolled in EU list. 45 EUDPA says that "Personal data
shall not be transferred to a country or territory outside the EEA unless that country or territory ensures
an adequate level of protection for the rights and freedoms of data subjects in relation to the processing of
personal data.”46
So, it is quite clear that EU has some sort of set standards which has to meet if any data has to transfer to
countries outside the European Economic Area (hereafter referred as EEA).
India has only one law which partly serves some sort of data protection but India legislature should
acknowledge the fact that IT act is not sufficient to deliver justice in this cyber advanced world. India
needs a comprehensive and complete data protection act so that no criminal can abscond from the law and
justice can be delivered.
The IT Act, 2000 is a general Act which has its main focusses on crimes like the digital signatures, cyber
contraventions and offenses, e-governance, confidentiality. It is mistaken and is erroneously compared to
the European Directive on Data Protection (EC/95/46), OECD Guidelines on the protection of Privacy
and Transborder Flows of Personal Data and the Safe Harbour Approach of the US.
The fact is that the IT Act, 2000 deals with the issue of the Data Protection and privacy in a partial manner.
There is a lack of actual framework in the IT Act, 2000 wherein the Data Protection Authority and quality
and transparency of the data are considered. Even if the legislature of India tries to amend the IT Act,
2000 then also there would be some lope holes for the actual framework and guidelines for data protection
and privacy that should match the EU directive, OECD Guidelines or the Safe Harbour Principles.
The absence of Data Protection Laws, India is on a heavy loss to the outsourcing industry as though it is
a flourishing industry in India but does not have a proper Data Protection Act. The customers in the US
and the European Union are protected by the comprehensive privacy directive which focuses on the
principle that the personal data should not be transferred to countries which do not have adequate
protection policy. As a result, for European trade Union data protection is an indispensable requirement
which has to be acknowledged in these international out-sourcing companies. Hence this may lead to a
slab in the outsourcing industry in India. Hence India needs to tackle this situation tactfully and should
consider the importance of Data Protection Act.
CONCLUSION
In this contemporary cyber world, we have to acknowledge the fact that India is still lagging behind from
European countries in terms of cyber laws and it's not a fortnight job to introduce a new cyber law in India.
India is a growing economy where lots of data is transferred from India and there is an urgency of law and
legal framework to monitor this data before it is too late for this booming economy. In this cyber world
not to have an adequate Data Protection Act becomes a slab and this prevents India to become one of the
developed cyber economies.
45
Commission decisions on the adequacy of the protection of personal data in third countries - European Commission,
Ec.europa.EU (2017), http://ec.europa.eu/justice/data-protection/international-transfers/adequacy/index_en.htm (last visited
Dec 25, 2017).
46
Sending personal data outside the European Economic Area (Principle 8), Ico.org.uk (2017), https://ico.org.uk/for-
organisations/guide-to-data-protection/principle-8-international/ (last visited Dec 26, 2017).
14
Till now there is no significant research has been done in respect of trans-border data flows. Indian
legislature should be proactive and have to divert its concern on the urgency of law and legal framework
required in this field. We all know India is a developing country one of the benefits of being developing
nation is they don't have to start from zero. India can take into the consideration different laws and model
of developed countries which already have stable Data Protection Act like UK and EU.
Till now the only act which deals with some sort of Data protection in India is IT act but IT act is a general
act and it is sometimes not able to punish the criminal because of lope holes in the act. So, before it's
become too late, India should introduce its new law for Data Protection so that in future no criminal can
abscond from the law and justice can be delivered.
REFERENCES
1. India yet to sign treaty with other countries on Cybercrime, says CBI special Judge the Hindu,
http://www.thehindu.com/sci-tech/technology/internet/India-yet-to-sign-treaty-with-other-countries-on-
Cyber-crime-says-CBI-special-Judge/article12546205.ece (last visited Dec 24, 2017)
2. Gov.uk. (2017). Government to strengthen UK data protection law - GOV.UK. [online] Available at:
https://www.gov.uk/government/news/government-to-strengthen-uk-data-protection-law [Accessed 8 Dec.
2017].
3. Total of 50 cyber-attack incidents reported in financial sector: Govt The Indian Express,
http://indianexpress.com/article/technology/tech-news-technology/50-cyber-attack-incidents-reported-in-
financial-sector-govt-4777350/ (last visited Dec 24, 2017
4. One cybercrime in India every 10 minutes - Times of India The Times of India,
https://timesofindia.indiatimes.com/india/one-cybercrime-in-india-every-10-
minutes/articleshow/59707605.cms (last visited Dec 24, 2017)
5. 112 government websites hacked in 3 months: Sachin Pilot The Economic Times,
https://economictimes.indiatimes.com/tech/internet/112-government-websites-hacked-in-3-months-
sachin-pilot/articleshow/12270733.cms (last visited Dec 24, 2017)
6. Fingerprint 'cloned from photos', BBC News (2017), http://www.bbc.com/news/technology-30623611 (last
7. Andy Greenberg et al., Hackers Claim to Auction Data They Stole From NSA-Linked Spies WIRED
(2017), https://www.wired.com/2016/08/hackers-claim-auction-data-stolen-nsa-linked-spies/ (last visited
Dec 26, 2017).
8. Lily Newman et al., The Biggest Cybersecurity Disasters of 2017 So Far WIRED (2017),
https://www.wired.com/story/2017-biggest-hacks-so-far/ (last visited Dec 26, 2017).
9. UK data protection laws to be overhauled, BBC News (2017), http://www.bbc.co.uk/news/technology-
40826062 (last visited Dec 26, 2017).
10. Dot.gov.in (2017), http://www.dot.gov.in/sites/default/files/itbill2000_0.pdf (last visited Dec 26, 2017).
11. MEA | List of Extradition Treaties/Arrangements, Mea.gov.in (2017), http://www.mea.gov.in/leta.htm (last
12. Commission decisions on the adequacy of the protection of personal data in third countries - European
Commission, Ec.europa.EU (2017), http://ec.europa.eu/justice/data-protection/international
transfers/adequacy/index_en.htm (last visited Dec 25, 2017).
13. Sending personal data outside the European Economic Area (Principle 8), Ico.org.uk (2017),
https://ico.org.uk/for-organisations/guide-to-data-protection/principle-8-international/ (last visited Dec 26,
2017).
15
UNIFORM CIVIL CODE

MOHAMMAD SALEEM47
INTRODUCTION
India, a country famously known as the Land of Diversity. Diversity which is present in all spheres of
life ranging from population to economic conditions, from literacy rate to the female population, from
languages to the clothing pattern and even in the form of Bio- diversity i.e. the presence of various types
of species of plants and animals.
In this research paper, I shall be taking account of the Cultural and Religious diversity present in the
country. India has 29 States and 7 Union Territories which have a diversified culture, majorly governed
by the religion which a person follows. According to the census report of 2011, 79.8% of the population
of India practices Hinduism, 14.2% population practices Islam, 2.3% of population practices Christanity,
1.7% of population practices Sikhism, 0.7% of population practices Buddhism and 0.4% of the population
practices Jainism as their primary religion. Based on the religion and geographic location, there are 1635
rationalized mother tongues, 234 identifiable mother tongues and 22 major languages.
While the diversity is appreciated, it often leads to problems of integration and governance over the
citizens. There are specific codes governing these different communities and religions, supplemented by
customs, traditions and usages. These specific codes are termed as personal laws which are different for
different community.
There is always a need felt that there should be uniformity in the legislations regarding the matrimonial
and personal laws. As far as uniform legislation is concerned, India has already achieved uniform laws in
other spheres of life such as Constitution, Contract, Civil, Criminal, Taxation etc.
Concept of Uniform Civil Code
The word UCC consist three terms ‘uniform’, ‘civil’ and ‘code’. The term uniform means all people are
same in all circumstances; the term civil, derived from the Latin word ‘civils’ means citizen when use as
an adjective to the term ‘ law’ meaning the right of citizen ; the word code derived from Latin word ‘
codex’ which means book. So therefore it denotes the meaning that uniformly laws that are applicable to
all citizen of India irrespective of their caste, religion, birth, sex, tribe.
The Constitution of India envisaged a Uniform Civil Code (hereinafter, UCC) under Article 44, which
states, “The state shall endeavor to secure for the citizens a UCC throughout the territory of India”.
47
Student, Faculty of Law, Lucknow University, Lucknow
16
Through Article 44, an attempt was made, investing the State with this onerous responsibility. The term
came under heavy scrutiny during the Constitutional Assembly Debates, with each community
vehemently expressing its dissent on the same. There was a failure to arrive at a common ground regarding
the same hence the Article had been reduced to merely directive in nature, and not mandatory.
UCC – a common code which is applicable to all the communities irrespective of their religion, race,
caste, creed etc. is now-a-days posing one of the biggest challenges for a country like India. If implemented
in its letter and spirit, then these three words are sufficient enough to divide India politically, religiously
and socially. It might be the reason due to which the framers of our constitution decided to include UCC
in the directive principles of state policy and not in fundamental rights.
Legal Dimensions and Origin
First time demand for UCC was raised by India’s first Prime Minister Jawahar Lal
Nehru but he failed to implicate the provision stating that Muslim society is not ready for the change. The
framers of the Indian constitution, including men such as Nehru, were convinced that a certain amount of
modernization is required before a UCC is imposed on citizens belonging to different religions including
Muslims. It was also feared that any attempt to ignore personal laws of various religions might lead to
civil war, wide-scale rioting and social unrest.
The first serious attempt for the uniformity of personal laws was made during the framing of the
Constitution of India which can be seen in the Constituent Assembly Debates.
B R Ambedkar said, “All citizens must be able to claim full and equal benefits of all laws and proceedings
for the security of persons and property as is enjoyed by other subjects regardless of any usage or custom
based on religion”.
Kanhaiyalal Munshi wrote, “ No civil or criminal court shall, in adjudicating any matter or executing any
order, recognize any custom or usage imposing any disability on any person on the ground of his caste,
status, religion, race or language”.
Minoo Masani said it was the state’s duty to bring in a uniform code so “these water tight compartments”
(personals laws) could go.
The recommendation received the support of the two woman on the panel – Hansa Mehta and Rajkumari
Amrit Kaur – but was still outvoted. It was said by the sub-committee in its report that- “A uniform code
was not so vague a notion; it had obviously been deemed ‘not suitable’ for enforcement…….Why?” “ The
reason……was not, as it might at first appear, the wish to avoid a clash with Hindu orthodoxy, but a
sensitivity, particularly on Nehru’s part, to the fears of the Muslims and the Sikhs,” wrote the Indian
Constitution’s famous historian, Granville Austin.
17
Though Dr. B.R. Ambedkar was an extensive supporter of the UCC, he couldn’t get it through more than
a status of Directive Principle due to opposition from the members. This directive principle is aimed to
achieve, gradually, rather than at once, more far-reaching equality for all citizens.
The issue was sensitive and a UCC could be seen by the citizens as an invasion on their culture and
religion. The framers felt that certain time should elapse before such a proposal can be undertaken. In
backdrop of partition, where chaos and bloodshed became the order of the day, again brining an issue
regarding religious laws would not have been a wise decision. However, over 68 years later as well, the
dream of a UCC remains unrealized.
During the debates in the Constituent Assembly, B.R. Ambedkar had demonstrated his will to reform
Indian society by recommending the adoption of a Civil Code of western inspiration. He had then opposed
the delegates who wished to immortalize personal laws, especially Muslim representatives who showed
themselves very attached to the Shariat:
"I personally do not understand why religion should be given this vast, expansive jurisdiction, so as to
cover the whole of life and to prevent the legislature from encroaching upon that field. After all, what are
we having this liberty for? We are having this liberty in order to reform our social system, which is so full
of inequities, discriminations and other things, which conflict with our fundamental rights."
However, Ambedkar did not obtain anything more than an article of the Directive Principles stipulating
that: "The State shall endeavor to secure for the citizens a UCC throughout the territory of India." This
recommendation was to remain a dead letter, notably because the minorities – to begin, with the Muslims
– took a hard line on their personal law.48
A multi-community group in the Constituent Assembly included a Dalit (B R Ambedkar), a devout Hindu
(K M Munshi), a Parsi (Minoo Masani), a second-generation Sikh who converted to Christanity
(Rajkumari Amrit Kaur) and a Gujarati Nagar Brahmin (Hansa Mehta) had hopes that a UCC would be
incorporated as a fundamental right and not merely as one of the non-justiciable DPSP.
At the same time, another group, wholly Muslim, who determined to vigorously put forth its case for the
exact opposite: it wanted personal laws to be treated as a fundamental right and therefore enforceable in
any court of law.
48
Christopher Jafferlot’s book Ambedkar and the Untouchability- Analysing and Fighting Caste
18
Soon after the Assembly started debating Ambedkar’s Draft Constitution in November 1948, three
amendments to the clause on the code included in the Directives were tabled by five Muslim members –
Mohammad Ismail Khan, Naziruddin Ahmad, Mahboob Ali Baig, B Pocker Sahib and KTM Ahmed –
with a view to ensuring that no community would be made to give up its own laws if it didn’t wish to. In
what, The Times of India of November 24-1948, describes as a “series of full-blooded speeches,” these
five (earlier part of the Muslim League Assembly Party), posing “as spokesmen of the minority
community,” denounced the provision of a common law as “tyrannical”.
Their refrain all through the impassioned debate was that if the British had not touched religious laws,
especially those related to marriage and inheritance, “for 175 years,” what was the need for the newly-
independent Indian nation-state to do so?
Mohammad Ismail Khan felt that though the Assembly’s intention seem to be “to secure harmony through
uniformity,” it would actually “bring discontent” and hurt harmony. Agreeing with him fully, Naziruddin
Ahmad warned of widening “ misunderstanding and resentment” and echoed his co-religionist member’s
view that “what the British in 175 years failed to do…….we should not give power to the State to do all
that at once.”
B Pocker Sahib sought to expand the ambit of the argument, saying that many Hindu groups too had
objected to a common law and had used “stronger language” against it. But even if the majority
community was in favor of Article 44, he emphasized, it had to be “condemned” because the majority
could not ride roughshod over minority rights but had a duty “to secure the sacred rights of every
minority.” Two Muslim members, Ahmad and Hussain Imam were, in addition, convinced the time was
just not right to bring in a binding legislation for all of India. It could be introduced only when mass
illiteracy had been wiped out, people has “advanced” and their economic conditions improved, they stated.
Besides, the progress towards a uniform code should be “gradual and with the consent of the people
concerned”. Mohammad Ismail Khan also said the matter was not all about Muslims. Of course, several
European constitutions (such as Yugoslavia’s, for instance) allowed Muslims to follow their own laws,
but they dealt mainly with minority rights. The amendments he had proposed, he said, referred not to
minorities alone but to all, including the majority, and thus aimed at securing everybody’s rights.
Three Assembly members – Alladi Krishnaswami Ayyar from Madras and K M Munshi and B R
Ambedkar from Bombay responded to the each of the points put forward by the Muslim leaders of the
Assembly. Munshi said that Article 19 allowed the state to enact social reform laws while protecting the
19
freedom to practice religion, so was not being contravened. Urging his “Muslim friends” to foregoan
“isolationist outlook,” Munshi said, “Religion must be restricted to spheres which legitimately appertain
to religion, and the rest of life must be regulated, unified and modified in such a manner that we may
evolve, as early as possible, a strong and consolidated nation.”
Ayyar said, cries of “religion in danger” and lack of amity if a code were made binding were meaningless
because the clause was “aimed at amity” and welding India into one nation. “Is this country always to be
kept as a series of competing communities?” he asked.
Ambedkar, who spoke next, said he was “surprised” a Muslim member had asked if uniform code was
possible and desirable in a vast country. “We have in this country a uniform code of laws covering almost
every aspect of human relationship,” he pointed out. “We have a uniform and complete criminal
code…..We have the law of transfer of property……I can cite innumerable enactments which would prove
that this country has practically a civil code, uniform in its content and applicable to the whole of the
country.”
These were the heated debates of the Assembly and also the reasons that “How Muslim fears were allayed,
and the UCC became a directive principle, neither enforceable by law nor voluntary, a letter that is yet to
be brought to life.
Goa Civil Code

The Goa Civil Code, also called the Goa Family Law, is the set of civil laws that governs the residents of
the Indian state of Goa. In India, as a whole, there are religion-specific civil codes that separately govern
adherents of different religions. Goa is an exception to that rule, in that a single code governs all Goans,
irrespective of religion, ethnicity or linguistic affiliation.49
Thus Goa is the only Indian state that has a UCC. In Goa Hindu, Muslim, Christians all are bound with
the same law related to marriage, divorce, succession. When the Goa became the part of union territory in
1961 by the virtue of the Goa Daman and Diu Administration Act 1962, the parliament authorized the
Portuguese civil code of 1867 to Goa and shall be amended and repealed by the competent legislature.
In Goa marriages is a contract between two people of different sex with the purpose of living together and
constitute the legitimate family which is register before the office of civil registrar. And the particular
rules and regulation has to be followed by the parties after that they can live together and start their life
49
Nandini Chavan; Qutub Jehan Kidwai (2006). Personal Law Reforms and Gender Empowerment: A Debate on
UCC (https://books.google.com/books?id=QIMp5ctu_ngC&pg=PA245).
20
but there are certain restrictions according to which these categories of person are prohibited to perform
marriage for example: any spouse convicted of committing or abetting the murder of other spouse shall
not marry.
The Goa civil code is largely based on the Portuguese Civil Code (Código Civil Português) of 1867, which
was introduced in Goa in 1870. The civil code was retained in Goa after its merger with the Indian Union
in 1961, although in Portugal, the original Code was replaced by the new Portuguese Civil Code of 1966.
In 1981, the Government of India appointed a Personal Law Committee to determine if the non-uniform
laws of the Union could be extended to Goa. The Goa Muslim Shariah Organization supported the move,
but it was met with stiff resistance from the Muslim Youth Welfare Association and the Goa Muslim
Women's Associations.50
Difference with the Indian Law

Some ways in which the Goa Civil Code is different from other Indian laws include:51
 A married couple jointly holds ownership of all the assets owned (before the marriage) or acquired
(after the marriage) by each spouse. In case of a divorce, each spouse is entitled to a half share of
the assets. However, the law also allows antenuptial agreements, which may state a different
division of assets in case of a divorce. These agreements also allow the spouses to hold the assets
acquired before marriage separately. Such agreements cannot be changed or revoked. A married
person cannot sell the property without the consent of his/her spouse.
 The parents cannot disinherit their children entirely. At least half of their property has to be passed
on to the children compulsorily. This inherited property must be shared equally among the
children.
 Muslim men, who have their marriages registered in Goa, cannot practice polygamy. Also, there
is no provision for a verbal divorce.
Uniformity
The Goa Civil Code is not strictly a UCC, as it has specific provisions for certain communities. For
example:52
 The Hindu men have the right to bigamy under specific circumstances mentioned in Codes of
Usages and Customs of Gentile Hindus of Goa (if the wife fails to deliver a child by the age of 25,
50
The Politics of Personal Law in South Asia: Identity, Nationalism and the UCC
(https://books.google.com/books?id=YwvaaHI8sjEC&pg=PA19).
51
iPleaders
52
wikipedia
21
or if she fails to deliver a male child by the age of 30). For other communities, the law prohibits
bigamy.
 The Roman Catholics can solemnize their marriages in church after obtaining a No Objection
Certificate from the Civil Registrar. For others, only a civil registration of the marriage is accepted
as a proof of marriage. The Catholics marrying in the church are excluded from divorce provisions
under the civil law.
 For Hindus, the divorce is permitted only on the grounds of adultery by the wife.
 The law has inequalities in case of adopted and illegitimate children.
Relation between UCC, Personal laws and Secularism
Relation between UCC and Personal laws

In India, whenever there is a voice raised for the implementation of UCC, it is always said to be an attack
on the personal laws of the minorities. Among the minorities the most vulnerable personal laws belongs
to that of the Muslims and they have a fear that in the name of UCC the government or the Judiciary is
trying to interfere in their personal laws which is based on the sacred text of the Holy Quran. Muslim
personal laws or the Sharia derives from the religious percepts of the Holy Quran and the Hadith, where
both these texts claim “divine sanction” and unconditional obedience to the Quran’s commandments are
a prerequisite for being considered a Muslim.53
The Holy Quran gives equal rights to men and women and places women in a respectable position.
However, there are certain aspects in Islam that render the position of Muslim women especially the wives
insecure and inferior. In Islam, a man is allowed to marry four times whereas the women cannot and if
they do they are treated as unchaste and impure. Even in the matter of succession, a Muslim woman is
discriminated against the assertion of certain Muslim scholars that the Islam in this regard is more
progressive and liberal. Even in the matter of maintenance, the Muslim wife is not required to be
maintained beyond the iddat period. The Criminal Procedure Code which imposes an obligation on the
husband to maintain his wife including divorced wife until she maintains herself is a secular law and is
applicable to all, however there is a controversy regarding the Muslim men following this provision.
Thus the Muslim women do not enjoy the equal status as that of the men. There should be formulation of
certain laws which tends to bring about the status of equality to Muslim women as enshrined in Article 14
of the Constitution.
53
Madhu Purnima Kishwar, The Times of India- 16 Sept 2017
22
This situation has arisen because the way that Muslim personal laws has been understood in India. The
whole arena is mired in ambiguity, obfuscation and apathy because of the long stranglehold of patriarchal
elements. The Quran gave clear rights to women 1400 years ago in marriage, family, society and public
life, nut in reality there has been a persistent denial of these rights. So much that a perception has arisen
that in Islam, men have superiority over women.
The Hindu community got their laws codified in 1955. The Christian and Parsee minorities also have their
laws codified. For various historical and political reasons, Muslim personals laws have remained un-
codified. In this context, for the Muslims, a UCC is a long way off, when we don’t even have the privilege
of a codified personal law.
In this entire debate where does the issue of UCC fit in? There are many unanswered questions that need
to be addressed by all stakeholders, and not just by Muslim community. For instance, why is the issue of
UCC raised only in the context of Muslim women’s legal rights? Is the code going to be made applicable
only to the Muslims? Have the Hindu majority and other minority communities already expressed their
approval? 54
UCC and Secularism

The Preamble of the Indian Constitution states that India is a Secular, Democratic, Republic. This means
that there is no State religion. A secular state shall not discriminate against anyone on the ground of
religion. A religion is only concerned with relation of man with God. It means that religion should not be
interfering with the mundane life of an individual. The process of secularization is intimately connected
with the goal of UCC like a cause and effect. In the case of S.R. Bommai v Union of India55, as per the
Justice Jeevan Reddy, it was held that religion is the matter of individual faith and cannot be mixed with
secular activities and can be regulated by the State by enacting a law.
Article 25 and 26 of the Constitution of India as enforceable fundamental rights which guarantee freedom
of religion and freedom to manage religious affairs.
At the same time Article 44 which is not enforceable in a court of Law. In unification of the personal laws,
an important question that arose was what will be the ingredients of the UCC.
Since, the personal laws of each religion contain separate provisions, their unification will bring not only
resentment, but also enmity in the public towards one another, therefore the UCC will need to bring in
such laws that strike a balance between the protection of the fundamental rights and the religious principles
of the different communities that exist in the country. Issues such as marriage, divorce, maintenance etc.
can be matters of secular nature and law can regulate them.
54
Noorjehan Safia Niaz and Zakia Soman, Co-founders, Bhartiya Muslim Mahila Andolan
55
(1994) 3 SCC 1
23
Role of Judiciary
In the post-colonial India, the role of Judiciary in the implementation of UCC is very appreciable. In fact
it is the judiciary, which through its interpretations tries to bring the personal laws of different
communities into one common mainstream and thus paved the way towards UCC. The Judges of various
High Courts and Supreme Court became the main instrument for bringing important gradual legal
developments which also put its impact on the question of UCC. Some of the important examples of
Judiciary in this direction are as under:
In State of Bombay v Narasu App Mali56, the Bombay prevention of Hindu Bigamous Marriages Act, 146
was challenged. The Act had imposed severe penalty on Hindu for contracting a bigamous marriage. In
this case the validity of the abolition of the polygamy in particular community was also challenged. The
then Chief Justice of Bombay High Court J. M.C. Chagla observed that one community might be prepared
to accept the social reforms, another community may not yet be prepared for it.
In the case of Mrs. Zohra Khatoon v Mohd. Ibrahim57, A substantial question of law was raised and the
High Court of Allahabad which cancelled the orders of the maintenance allowance passed by the
Magistrate on the grounds the when the divorced proceedings start from the female side under the
dissolution of Muslim Marriage Act 1939, in those cases wife cannot claim maintenance from her former
husband neither under the Muslim law nor under Sec. 125 of CrP.C. Ultimately the Supreme Court
overruled the decision of the High court on the ground that it is based on the wrong interpretation of the
Clause1(b) of the explanation to section 125 under this clause the wife continues to be wife even though
she has been divorced her husband or has otherwise obtained divorce and has not remarried.
In April 1985, the Supreme Court delivered a judgment on the maintenance. A divorced Muslim women
would be entitled to receive from her former husband in the case of Mohammad Ahmed Khan v Shah Bano
Begum58. The circumstances of the case and the manner of the formulation of its verdict by the court and
the publicity that it received altered the communal climate of India for all time to come 59. The protest and
counter-protests over the Shah Bano judgment persisted. Initially, the Rajiv Gandhi-led Congress Party
favored the judgment60. However, after suffering losses in the state election in some Muslim-dominated
regions, the government changed its approach. It succumbed to the vote-bank politics. Despite a spirited
defense of the judgment in Parliament by Muslim leader Arif Mohammad Khan, 61 the Rajiv Gandhi
56
AIR 1952, Bombay, 84.
57
AIR 1981 SC 1243.
58
AIR 1985 SC 945.
59
Shah Bano has aptly been described as the ‘catalyst’ for communal conflict in India. Anthony Chase, “Pakistan or the
cementery!”: Muslim Minority Rights in Contemporary India.
60
Reddy, “What Would your Founding Fathers Think?”
61
Bipin Chandra, Mridula Mukherjee, and Aditya Mukherjee, India after Independence
24
government crumbled under pressure and enacted the Muslim Women (Protection of Rights in Divorce)
Act, 1986.
Contrary to its name, the MWA actually undermined the far-reaching protection granted in Shah Bano
and other similar judgments. It was more in the nature of a ‘dissolution of rights in divorce’ act rather than
a ‘protection of rights in divorce’ act.
In the case of Sarla Mudgal v Union of India62, where the question of whether a Hindu husband by
embracing Islam can solemnize a second marriage. The court held that this would amount to nothing but
merely abusing the personal laws. The judge in this case opined that it is high time that a UCC be
introduced and that Art.44 be taken out of cold-storage.
He commented that, “Where more than 80% of the citizens have already been brought under the codified
personal law, there is no justification whatsoever to keep in abeyance, any more, the introduction of the
‘UCC’ for all the citizens in the territory of India.”
In Lily Thomas and others vs. Union of India & others63“The court rejected the contention that the decision
in Sarla Mudgal vs. Union of India is violative of rights guaranteed under article 21 of the constitution.
The judgment in Sarla Mudgal case has neither changed the procedure nor created any law for the
prosecution of the person sought to be proceeded against for the alleged commission of offence under
section 494 IPC.” So, if the UCC would have been provided for the citizen as the constitutional mandate
then the problems which has arisen in the cases of (Mohd. Ahmed Khan vs. Shah Bano Begum), (Daniel
Latifi & other Vs. UOI would have not been there.
In 1994, a few years after the MWA was enacted, there was an unsuccessful constitutional challenge to
the MWA in the Supreme Court in the case, Maharishi Avadhesh v Union of India64, where a writ petition
was filed under Article 32 of the Constitution invoking the Supreme Court to declare the MWA as void
and arbitrary, and also to consider enacting a UCC for all citizens of India. The Supreme Court dismissed
the petition, stating that such matters were within the domain of the legislature, and not the judiciary.
Meanwhile several High Courts began interpreting the MWA to endorse the proposition that divorced
Muslim women be entitled to maintenance not only during the three-month iddat, but also after that. The
cases were:
62
(1995) 3 SCC 635
63
AIR 2013 SC 2662
64
(1994 Supp (1) SCC 713)
25
 Arab Ahemadhia Abdulla v Arab Bail Mohmuna65

 Ali v Sufaira66
 K. Kunhashed Hazi v Amena67
 K. Zunaideen v Ameena Begum68
 Karim Abdul Shaik v Shenaz Kareem Shaik69
 Jaitunbi Mubarak Shaikh v Mubarak Fakruddin Shaikh70
 Kaka v Hassan Bano71
Other High Courts concluded that the husband’s liability under the MWA was limited to the period of
iddat, after which the divorced wife (if she could not maintain herself) would have to approach her
relatives or the Muslim Wakf Board for maintenance. The cases were:
 Usman Khan v Fathimnurisa72
 Abdul Rashid v Sultana Begum73
 Abdul Haq v Yasima Talat74
 Md. Marahim v Razia Begum75
The Supreme Court ended this divergence of opinions in Danial Latifi v Union of India76. In this case
Danial Latifi, a senior advocate, challenged the constitutional validity of the MWA arguing that the MWA
contravened the right to equality (Article 14 and 15) as well as the right to life (Article 21) guaranteed by
the Constitution. The Supreme Court, here, exercised greater restraint than in Shah Bano refusing to strike
down the MWA, yet protecting the rights of the divorced Muslim women.
In Iqbal Bano v State of Uttar Pradesh 77, the Supreme Court said that even if a divorced Muslim women
(who had not remarried) filed a petition under Section 125 of the CrPC, the petition would not be dismissed
on the technicality of failing to make a claim under the MWA.
65
AIR 1988 Guj 141
66
(1988) 3 Crimes 147 Kerala High Court
67
(1995) Cr.L.J 3371 Kerala High Court
68
(1998)II DMC 468 Madras High Court
69
2000 Cr.L.J 3560 Bombay High Court
70
1999 (3) Mh Lj 694 Bombay High Court
71
( II (1998) DMC 85) Punjab and Haryana High Court
72
(AIR 1990 AP 225) Andhra Pradesh High Court
73
(1992 Cr.L.J. 76) Calcutta High Court
74
(1998 Cr.L.J. 3433) Madhya Pradesh High Court
75
(1993 (1) DMC 60) Madras High Court
76
(2001) 7 SCC 740
77
(AIR 2007 SC 2215)
26
The conjoint effect of two recent decision the Supreme Court i.e. Iqbal Bano v State of Uttar Pradesh and
Shabana Bano v Imran Khan78, is that a divorced Muslim women is free to seek maintenance either under
Section 125 of the CrPC or claim lump sum alimony under the MWA 79.
Present Scenario regarding UCC in India
Why nobody is sincere about UCC?
India’s longest surviving joke is its commitment to a UCC. The only person whom did not get the joke
was B R Ambedkar. As a result, he has no option but to resign. In utter disgust he said: “I have never seen
a case of a chief whip so disloyal to the Prime Minister and the Prime Minister so loyal to a disloyal
whip.”
In India’s politics, however, the controversy has not only survived, it has thrived in vivid and raucous
fashion. During elections, Hindu chauvinistic parties find it handy to whip up their voters. But as soon as
the election is over, the UCC is consigned to the freezer, only to be brought out again in the next hustings.
As India is in continuous election mode, thanks to one state election after another, the issue has acquired
a life-death stature.
The UCC is no doubt a normative formulation, but law is a political apparatus, and so too is personal laws.
Any UCC, therefore has to be politically negotiated through inter-community cooperation. As long as one
community believes it occupies a higher pedestal, this will remain unachievable. Sometimes it is Islam in
danger, at others it is Hinduism in danger, but barring the occasional intervention of women’s rights
groups, it is never: ‘women in danger’. It is a man’s world. Unless this reality is challenged and altered,
all talks about the UCC is simply superficial, high-voltage TV debate.80
Are we really prepared for a UCC?

It is the time we put the UCC debate in context, with constitutional intentions as well as India’s lived
experience. First we need to appreciate the distinction between ‘justiciable’ and ‘non-justiciable rights’.
The former are enforceable in the court of law while later are not. Even in the triple talaq case, the majority
bench of the Supreme Court held that freedom of religion, subject to restrictions, under Article 25 and 26
is absolute. The right to follow personal law has been elevated to the highest status of fundamental rights.
Article 26 is wider in scope than Article 25, as it guarantees freedom to “religious denominations or any
sect thereof to manage its own affairs in matters of religion”. The freedom is not even subject to ‘right to
equality’.
78
(AIR 2010 SC 305)
79
The Muslim Women (Protection of Rights on Divorce) Act, 1986
80
Partha S. Ghosh, Institute of Social Sciences, New Delhi, and author of ‘The Politics of Personal Laws in South Asia’.
27
The Supreme Court, rightly said in Minerva Mills 81 that “to destroy the guarantees given by Part III
(Fundamental Rights) in order purportedly to achieve the goals of Part IV (DPSP) is plainly to subvert
the Constitution by destroying its basic structure…..to give absolute primacy to one over the other is to
disturb the harmony of the Constitution.”
Of the 19 Directive Principles, why is that only two are a matter of public discussion now: cow protection
and the UCC? No one is talking about living wages, removal of inequalities in income, equal pay for equal
work, early childhood care, raising level of nutrition and public health and so on. In fact everyone opposed
the apex court’s order on mere prohibition of sale (not consumption) of liquor within 500 meters of a
highway, even though Article 47 provides for the prohibition of intoxicating drinks, in language identical
to Article 44. Is this not hypocrisy?
The goal of a UCC should be achieved in a piecemeal manner, and a commitment to justice and a respect
for diversity. Legal pluralism is widely respected. We should remember that mere normative changes are
not likely to bring social reform.82
Future Prospects
There is a major misconception among the Muslim population that an attempt to implement the UCC is a
direct attempt of interference in their personals laws and they feel that the right to profess their own
religion and customs have been hampered. As long as religion based laws are in operation, the conflict
will remain unresolved. Whenever the courts give a verdict regarding any religious and personal matters,
and that is not approved by the Islamic scholars, they will accuse the courts of interference in religion.
Whenever the Constitution and religious laws collide, “Believers can keep their customs, but any dispute
brought to the Indian courts should be settled on the basis of a civil code”83. This code will prescribe equal
rights and obligations and permit no discrimination or special rights on the basis of religion, caste, gender
or sex. This will ensure not only full freedom of religion to the individuals but also fulfill the constitutional
goal of a UCC.
The UCC is mainly aimed at to bring about uniformity and to provide equality to women but this applies
to women of all communities and not only to Muslim women. The reason for the making the Muslim
women “center of focus” is because the Muslim women are excluded educationally and socially-
economically owing to government neglect, and on the other hand they suffer from the near-absence of
81
Minerva Mills v Union of India AIR 1980 SC 1789
82
Prof. Faizan Mustafa, Vice-Chancellor, NALSAR University of Law, Hyderabad.
83
Arif Mohammad Khan, Former Union Minister
28
any legal framework in matters of family, marriage, divorce, custody of children and so on. Unlike women
form other communities, Muslim women are denied their legal rights in the personal realm despite Quranic
injunctions.
Muslim women need legislative protection, but the UCC is just a bogey, unless all communities are
prepared to give up their own personal laws. Even after so many decades of debate around a UCC, why
haven’t we seen even a single page of this elusive code? Is it not a bogey raised only to strengthen
conservative position? And why have there been no attempts to strengthen and popularize the Special
Marriage Act84, which for all practical purpose, is an optional Civil Code?85
Conclusion
These challenges, and several others, confront the very conceptual framework of the UCC, and it is
everybody’s responsibility to address them. Before we even attempt to draft a UCC, the moot question is
– are all communities willing to give up their respective religion-based family laws? If the answer is not
unambiguous, then we are still far away from UCC. But, in any sense, this does not mean that we should
forget about implementing UCC.
A strong political will is required and everything can be done by bringing each and every section of the
society to a common stage and hence a common code i.e. The UNIFORM CIVIL CODE.
84
Special Marriage Act, 1954
85
Noorjehan Safia Niaz and Zakia Soman, Co-founders, Bhartiya Muslim Mahila Andolan
29
ANTI DUMPING REGIME IN INDIA

NIHARIKA SHARMA & JAYATI CHAUHAN86
INTRODUCTION
The cardinal principle of the World Trade Organization (“WTO”) is trade promotion through the
facilitation of the free flow of goods and services among member states with minimal tariff barriers and
without non-tariff barriers. In a world where tariff and non-tariff barriers are decreasing rapidly, unfair
trade practices like dumping, subsidization and sudden surges in exports, continue to occur regularly.
Thus, anti-dumping, and safeguard measures are increasingly becoming major tools in the hands of
member nations to protect their domestic industries against unfair trading practices. Such measures create
a level playing field for domestic industries to compete more effectively in their domestic markets. Among
these trade remedial measures, an Anti-dumping Duty is the most frequently used tool for the protection
of the domestic industry from “dumping”, i.e. export of an article into the market of another country at a
lesser price (normal value) than the price at which it is sold in the domestic market of the exporting
country. India has emerged as one of the frequent users of anti-dumping measures in recent years. The
anti-dumping journey of India began in the year 1995. Over the years, India has experienced dumping of
various products such as chemicals and petrochemicals, pharmaceuticals, textiles/fibers/yarns, steel and
other metals, consumer goods, automotive components, plastics and plasticizers, electrical and electronic
items. Various countries, especially China, were found to be participating in these dumping practices.
The anti-dumping investigations conducted by India were predominantly against China, EU member
nations, Korea, and Taiwan; even though a large number of other countries were also found to be dumping
goods in the Indian market.
ANTI-DUMPING
Dumping is a practice in international trade where a company exports its products in other countries at a
price lower than the prices in its home market. Anti-dumping duty is tariff imposed by the government of
a country on the imports from other countries where there are unfairly lower prices of imports in the
domestic market. Trade dumping can be identified by comparing the selling price of a product in its home
market and the listed price in the exporting market. A country prevents dumping by the way of trade
agreements. India has become a leading user of anti-dumping measures, over the past decades.
HISTORICAL BACKGROUND
Anti-dumping rules started to develop in the early part of this century with the adoption of legislations
firstly by Canada in 1904, New Zealand in 1905, Australia in 1906 and United States in 1916, which were
later subjected to a few amendments. In 1921 the United Kingdom also enacted its first anti-dumping
legislation. Anti-dumping remained a relatively infrequent instrument until the advent of the General
Agreement on Tariffs and Trade (GATT), Article VI of the 1947 GATT provided the basic conditions for
adopting anti-dumping measures. In the immediate post-war period South Africa, Canada and Australia
were the only countries using anti-dumping as an important trade instrument. During the Kennedy Round
of trade negotiations, discussions took place for them, first time on Article VI of the GATT in order to
secure more standardized approach to anti-dumping. This in turn led to the “Agreement on Implementation
of Article VI of the GATT” which, in turn formed the basis for the first European Community anti-
86
Student, 4th Year B.A.LL.B at Jagran Lakecity University, Bhopal
30
dumping legislation adopted in 1968. Subsequent trade rounds have more precisely dealt with the rules
and procedures that WTO members are expected to adhere to in implementing their anti-dumping
legislations.
ADVANTAGES & DISADVANTAGES OF DUMPING
Advantages:
 The products are sold at an unfairly competitive low price.

 A temporary advantage is also there to the consumers of the products being dumped i.e. they pay
lower prices for those products.
 The country which is willing to take loss on the commodity will increase its share in the market of
that industry. It will also create jobs for its residents.
Disadvantages:
 It is expensive to maintain and may take years to put the competitors out of the industry.
 Counter-attack by the trading partners and the countries in the form trade restrictions and tariffs
may be imposed.
 Disapproval by World Trade Organization and European Union.
DIFFERENCE BETWEEN ANTI-DUMPING DUTY & NORMAL CUSTOMS DUTY
Both anti-dumping duty and custom duties is levied and collected by the Customs Authorities, but anti-
dumping duty is entirely different from the Customs duties not only in concept and substance, but also in
purpose and operation.
Conceptually, anti-dumping and the like measures in their essence are linked to the notion of fair trade.
The object of these duties is to guard against the situation arising out of unfair trade practices while
customs duties are there as a means of raising revenue and for overall development of the economy.
Customs duties fall in the realm of trade and fiscal policies of the Government while anti-dumping
measures are there as trade remedial measures. Anti-dumping duties are not necessarily in the nature of a
tax measure.
Anti-dumping duties are levied against exporter as against the customs duties which are general and
universally applicable to all imports irrespective of the country of origin and the exporter.
The anti dumping duty is levied over and above the normal customs duty chargeable on the import of
goods in question.
WTO ON ANTI-DUMPING
World Trade Organization (WTO) is an international organization which operates various international
trade rules. The ‘anti-dumping agreement’ resolved in WTO’s Uruguay round on trade negotiations. ‘Anti-
dumping agreement’ is the WTO Agreement on Implementation of Article VI of the General Agreement
on Tariffs and Trade (GATT) 1994. Anti-dumping agreement authorizes the WTO members to impose
anti-dumping measures, under certain conditions. Anti-dumping measures are generally applied in the
form of anti-dumping duty on imported products. Anti-dumping agreement lays down certain prerequisites
for imposition of the anti-dumping measures as well as detailed procedural requirements regarding the
conduct of antidumping investigations, the imposition of anti-dumping measures and the review of the
measures. There should be sufficient proof for these three prerequisite conditions for application of the
31
Anti-dumping measures are: - Dumped imports; injury to the domestic industry producing the like
product; and causal link between the dumped imports and the injury.
ANTI-DUMPING IN INDIA
In India legal framework for anti-dumping was established under Customs Tariff Act, 1975 (Sections 9A,
9B and 9C) which amended in 1995 and the Customs Tariff (Identification, Assessment and Collection of
Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 framed, which
form the legal basis for anti-dumping investigations and for the levy of anti-dumping duties in India,
incorporating the principles and guidelines of the General Agreement on Tariffs and Trade (GATT) 1994.
Anti-dumping measures in India are administered by the Directorate General of Anti-dumping and Allied
Duties (DGAD) functioning in the Department of Commerce in the Ministry of Commerce and Industry
and the same is headed by the “Designated Authority”. The Designated Authority’s function is to only
conduct the anti-dumping and countervailing duty investigation and make recommendation to the
Government for imposition of anti-dumping measures. Such duty is finally levied by a Notification of the
Ministry of Finance. Thus, while the Directorate General of Anti-dumping and Allied Duties (DGAD)
recommend the Anti-dumping duty, it is the Ministry of Finance, which levies such duty.
CHALLENGES
An anti-dumping investigation calls for a strict scrutiny of information provided by various stake-holders
such as domestic producers, exporters, importers, users and involves onsite verification of information to
the extent necessary. Being a quasi-judicial authority, the Designated Authority at the Directorate General
of Anti-dumping and Allied Duties (DGAD) under the Ministry of Commerce, also hears the parties
orally, as per the frame work prescribed in the anti-dumping rules. Investigations by the Designated
Authority involve fresh as well as review investigations. Fresh investigations are those investigations
which pertain to cases in which there is no earlier anti-dumping duty in force whereas review
investigations are either mid-term reviews under Article 11.2 of the WTO Anti-dumping Agreement or
sunset review under Article 11.3 of the WTO Anti-dumping Agreement and pertain to cases in which an
earlier anti-dumping duty is in force. The anti-dumping duties once imposed may remain in force for the
period of five years and are extendable for another period of five years through sunset reviews.
Recommendation of any anti-dumping duties by the Designated Authority requires confirmation and
imposition by the Central Government to have an effect on dumped imports. The legal framework also
provide Appeal provisions which enable the aggrieved party in an investigation to approach the Customs,
Excise, and Service Tax Appellate Tribunal (CESTAT) upon imposition of duties by the Central
Government. Apart from Appeal provisions, interested parties frequently challenge the anti-dumping
investigation process under the aegis of Article 226 of the Constitution, wherein the legality of various
aspects of an investigation has been a subject matter of litigation; even before the conclusion of
investigation and imposition of any applicable anti-dumping duties by the Central Government. (Article
226 empowers the High Courts of India to issue to the government writs in the nature of habeas corpus,
mandamus, prohibitions, quo warranto and certiorari.)
In recent times, the dumping of newer and wider range of products, newer business models involved in
supply of subject goods, technological changes, and changes in market dynamics have added complexities
to anti-dumping investigations, requiring more comprehensive and in-depth examination to address
various issues.
The areas which have seen significant levels of complexity are:
32
a) Determination of “Product Under Consideration” and “Like Article,”
b) Determination of “Domestic Industry” and “Standing,”
c) Determination of “Individual Margins for Exporters/Producers,”
d) Confidentiality Aspect
e) Circumvention of Duties by modifying the goods or changing the country of production/export.
A detailed examination of the above issues in the context of various investigations can be elaborated as
follows:
a) Determination of “Product Under Consideration” and “Like Article,”
Determination of Product Under Consideration (“PUC”) and like article in an anti-dumping investigation
holds the key to establishing dumping and any fallacies in the same could make the entire investigation
void. Intricacies generally arise when the PUC involves multiple types/grades/varieties, multiple
technologies, multiple processes, or different raw materials. These aspects make the determination of PUC
and like article highly technical; rendering the investigation itself very complex. The product complexities
can delay and frustrate due remedies to domestic industry, irrespective of the magnitude of dumping and
injury. Perhaps the most important issue involving PUC is establishing technical and commercial
substitutability. Two products may look different in terms of technology of production or design or style
or quality, but they are “like article” as long as they are functionally substitutable and replaceable in the
market, due to similar end use and comparable cost and price.
b) Determination of Domestic Industry and Standing
The anti-dumping investigation to determine the existence, degree and effect of any alleged dumping can
be initiated upon receipt of a well substantiated and written application by, or on behalf of, the “domestic
industry.” The applicant can comprise of a single or a group of domestic producers or an association
representing such domestic producers. Defining the “domestic industry” often involves difficulties when
the applicant or applicants, have imported the subject goods from a subject country or are related to an
exporter in a subject country or to the importers of the subject goods from a subject country. In such a
situation, such an applicant should not qualify to be treated as domestic industry. In situations where the
applicant domestic producer is a casual importer, the Designated Authority needs to examine the
relationship between the magnitude of imports and the circumstances under which the applicant industry
has taken recourse to importing the subject goods from the subject country. In such cases, the authority
also examines whether the applicant domestic producer is directly or indirectly related to the concerned
producer or exporter in the subject country. As settled by the Madras High Court in Nirma Limited vs.
Saint Gobain Glass India Limited,87 (the “Soda Ash case”), the Designated Authority has full discretion
and power to decide whether, despite such odds, the applicant can be included in the scope of domestic
industry under the AD Rules. Further complexities in defining domestic industry arise when Export
Oriented Units or companies located in Special Economic Zones approach the Designated Authority
seeking protection under the anti-dumping schemes. Such developments have made the definition of
domestic industry more complex and technical.
c) Determination of individual margins for exporters/producers
87
2012 (281) ELT 321 (Mad)
33
It is necessary to undertake a series of complex analytical steps in order to determine the appropriate price
in the market of the exporting country (known as the “normal value”) and the appropriate price at which
the goods are exported by the exporting country (known as the “export price”) so as to be able to undertake
an appropriate comparison. Of late, the instances of issues around determination of individual margins for
exporters/producers cooperating with the Designated Authority have increased, as companies often seek
individual margins without providing information about complete channels involved in the production
and export of subject goods to India. The determination of individual margin has serious implications and
any error can render the entire duty meaningless. A comprehensive and consistent approach to such issues
must be an area of focus.
d) Confidentiality
Confidentiality remains an issue between stake holders involved in an investigation. Availability of

adequate non-confidential information is critical in providing adequate rebuttals in an investigation by the
stake-holders, which improves the overall quality of an investigation. Hence, a balance between the
commercial interests of the interested parties, safeguarding their confidential information and fair and
adequate disclosure to interested parties to ensure compliance with the principles of natural justice is a
thorough challenge to the Designated Authority. The Designated Authority is required to scrutinize all the
claims of confidentiality made by every interested party and allow the cases in which the claim of
confidentiality is justified.
e) Circumvention of duties
Circumvention of duties remains an area of concern as the complaints of measures to circumvent the
applicable anti- dumping duties often arise from the domestic industry. India is yet to initiate any
investigation into this aspect.
Other lesser stumbling blocks are determination of the type of anti-dumping duty as a fixed reference price
based or ad-valorem duty. There are associated problems with each type and generally, the Directorate of
Anti-Dumping in India feels that a fixed duty is appropriate in most circumstances.
Transfer pricing policies with respect to domestic industry and the exporter also bring several challenges
before the costing data can be accepted. This is because some companies adopt cost of production of the
PUC as the transfer value for captive production, while other companies adopt its market value.
In multi-product companies, allocation of expenses poses difficulties as certified output is not used only
by PUC, but other products produced by the domestic industry, which are not subject to investigation. In
such circumstances, domestic producers tend to allocate the common cost of utilities, overheads and
common raw materials more to the PUC, and less to the non-PUC, which distorts the data. As a result,
DGAD Officers have to scrutinize in detail the methodology of values adopted by the exporters/domestic
industry, so as to ensure that the methodology of values adopted by them is reasonable and consistent. If
there are variations in this methodology, it is discarded and instead, a more appropriate and reasonable
methodology is adopted in determining the cost of production of the PUC.
Lastly, sometimes, the FOB/CIF price claimed by the exporter does not match with the data of the Indian
Customs Authorities. In such cases, scrutiny of data becomes necessary to check whether payment for the
invoice has been received by Indian importers through normal banking channels. If the answer is negative,
these export prices are rejected and officials have to call for data from the concerned importer, cross check
the figures reported by the exporters and the importers, and then make a final decision in the matter.
Thus, DGAD Officers are faced with a myriad set of challenges in each case, ranging from accurate
technical and commercial understanding of the product under consideration and “like article,” to
34
determination of the “domestic industry.” The comprehensive nature of the data that is required to be
examined for correctly determining individual margins and verifying the same within the limited time
available in the course of the investigation for complete trade channels is a major challenge. The issue of
determination of product under consideration and “like article” is also closely related to the possibility of
circumvention of duties and hence, the Designated Authority is faced with an additional challenge to
ensure that no abuse of the anti-dumping process is facilitated wherein the remedial effects of the anti-
dumping duties are easily eroded.
CONCLUSION
India’s current anti-dumping actions have given protection to the highly concentrated industries. Anti-
dumping policy ensures fair competition and improves economic efficiency, limiting the discretionary
powers of the authorities. More explicit rules regarding anti-dumping should be made and the procedure
for determining the dumping should be made more transparent.
Although, the earliest sign of anti-dumping legislation emerged in United States, various developing
countries like India and Brazil became the prominent users of the trade remedial measure. Such
transformation was noticed since the formation of WTO and the reason is quite clear. The Uruguay round
of negotiation revised an Anti-dumping code to form an Anti-Dumping Agreement. The Anti-dumping
Agreement has dealt with the various complexities of Article VI of GATT in detail, which has benefitted
various developing countries with respect to their rights under the WTO.
Anti-dumping investigations are intricate, demanding and time consuming. The increasing complexities
of current transactions, technological advancement and globalization of production and conducting
intricate anti-dumping investigations within prescribed timelines are challenges before the Anti-dumping
Authorities in all countries, including India. Therefore, capacity building of the human resources involved
in anti-dumping investigations is the key requirement for all WTO member countries.
35
FREEDOM OF SPEECH
MOUMITA SEN88
INTRODUCTION
The most important ingredient of democracy is the existence of free and fearless press. In a democracy,
the press must enjoy complete freedom and should not be subjected to any restriction. So, the very survival
of democracy inevitably depends on the freedom of press. But at the same time the press must not fail to
follow it's code of conduct and misuse the freedom.
WHAT IS FREEDOM OF PRESS OR MEDIA
Freedom of the press or freedom of the media is the freedom of communication and expression through
various mediums, such as electronic media and published materials. Wherever such freedom exist mostly
implies the absence of interference from an overreaching state, it's preservation may be sought through
constitutional or either legal protections. Many governments are also subject to Sunshine laws or freedom
of information legislation that are used to define the Ambit of national interest.
IMPORTANCE OF THE FREEDOM OF MEDIA OR PRESSFreedom of the press is constructing as

an absence of interference by outside entities, such as a government or religious, organizations, rather than
as a right for authors to have theirs works published by other people. This idea was famously summarised
by the 20th century American journalist, A.J Liebling , who wrote , "Freedom of the press is guaranteed
only to those who own one". The United Nations 1948 universal Declaration of Human Rights states:-
Everyone has the right to Freedom of opinion and expression; this right includes freedom to hold opinions
without interference, and to seek, receive and impart information and ideas though any media regardless
of frontier.
A PRE – INDEPENDENCE HISTORY OF PRESS FREEDOM IN INDIA:-
(How the Indian press tried to fight service sonship imposed by the British Government in pre-independent
India, starting from the 1850s.)
For the first half- century of independence, media control by the state was the major constraint on press
freedom. During the reign of the British Empire there were several Acts passed as stringent curbs over the
Indian press. Prior to the rumblings of the 1857 mutiny, the press was fiercely involved in rallying the
masses, and inevitably, the British Government was increasingly becoming apprehensive about the press
Freedom. In view of, the "Gagging Act" was passed by Lord Lytton which was driven to curtail and
88
Student, Surendranath Law College, Kolkata
36
control the Indian publication content. The Act compelled all Indian publications to apply for a licensed
from the government, while also ensuring that nothing was written against the British Government, nor
was the government challenged in any measure.
One such publication was the Bengali weekly, Amrita Bazar Patrika( establish in 1968 in Jessore District
Now present day in Bangladesh). Amrita Bazar Patrika caught the authorities’ attention when it reported
on the exploits Indigo farmers. In this light of this , the vernacular press Act was passed on March 14,
1878, where the British Government claimed stronger control over the vernacular newspaper in the"
interest to curb seditious writing in publication in Oriental language".
This Act was not imposed English language publication. In the 1880, the nationalist movement gather
momentum and that gave a stronger push to Indian Press. Reba Chaudhuri in The story of the Indian press
(published in the Economic and Political weekly, 1955), "A number of press Laws and restrictions
Were, enforced and placed on the, state book from time to time. After the establishment of the Indian
Nationals Congress, there were sections 124A and 153A of the Penal code enacted in 1898. There was
also section 565 of the Indian penal code. Four new measures were enacted between 1908-191; namely
the newspaper (Incitement to offences) Act of 1908. The press Act 1910, the prevention of seditious
meeting Act of 1911 and the criminal law Amendment Act of 1908. There was also "the official secrets
Act as amended in 1903'.
The press Act of 1910, hit the Indian papers hard. Chaudhuri gives an insight “The press Association of
India in a memorandum on the operation of the press Act of 1910 stated that nearly 1,000 papers had been
prosecuted under the Act. The total amount of securities and forfeitures which went into the hands of
Government during the first five years of the Act was nearly Rs. 5 Lakhs according to another official
returns made in 1918. During Mahatma Gandhi's Satyagraha, he used press to advocate his feelings and
rally the masses to protest against the British. Following Gandhi's in 1330, in the aftermath of the salt
Satyagraha he started, the press Emergency Act of 1931 was firmly put in place. The outbreak of the
Second World War in September 1939 inspired far more acute rumblings within the press. Fearing a threat
to Freedom of expression newspaper editor’s new concern was to ensure that the rights of the press be
safeguarded. In the midst of this, emerged the All-India newspaper Editors Conference which was
conceived to function as a protector of press rights. The Defence of India Regulations Act was originally
introduced in the 1915, by the government as a stringent, emergency law to prevent retaliatory, rebellion-
driven activities from emerging within the country.
PRESS AND REGISTRATION OF BOOKS ACT 1867 :- The earliest surviving enactment specially
directed against the press was passed in 1867 , the press and Registration of Books Act . The object was
37
however to establish government control over the freedom of press. It was a regulatory law which enable
government to regulate printing presses and newspapers by a system of registration and to preserve copies
of Books and other matter printed in India.
OFFICIAL SECRETS ACT 1923:- It is a general Act which has a greater impact on the press. In
particular is the official secrets Act 1923, which is aimed at maintaining the security of state against
brakege of secrets information sabotage and the like. The Act ,(as amended by the Criminal law
Amendment Act ,1932) empowered a provincial Government to direct a printing press to deposit a security
which was liable to be forfeited if the press published any matter by which any of the mischievous acts
enumerated in S. 4 of the Act were furthered, e.g., bringing the government into hatred or contempt or
inciting disaffection towards the government ; inciting feelings of hatred and enmity between different
classes of subjects including a public servant to resign or neglect his duty.
PREES (Objectional Matter ) ACT,1951:- The preamble of the press (Objectional Matter) Act, 1951,
looked innocuous as it was "to provide against the printing and publication of Incitement to crime aid
other Objectional matter ". The other improvement were as follows: while the Act 1931 was a permanent
statute , he Act of 1951 was a temporary one to remain in force for a period of two years; the new Act
provide for a judicial inquiry by a session judge before could be demanded from a printing press or
forfeited to Government; and the person against whom a complaint had been made could demand the
matter to be determined with the aid of a Jury 6 and had a right of appeal from the order of the session
judge to the High court.
PRESS COUNCIL ACT 1965:- Following the British precedent, a press council was constituted in 1996
under press council Act 1965, which was enacted to implement the recommendation of the press
commission .The object of the establishing the council was to preserve freedom of press to maintain and
improve standards of newspaper in India. It was to form a code of conduct to present writings which were
not legally punishable beet were not jet objectionable. However, press would go on to witness
divisiveness, as the Hindu press & the Muslim press would go at war & that would be far murkier than
clash with British government.
FREEDOM OF PRESS: Pillar of Democracy:- The Liberty of the press is the palladium of all the civil,
Political, and religious rights. In a democratic set up the press can act as a bridge between the government
& the people, & this right is very important at the stage of the formation of the government. Press is the
4th pillar of the Democracy, which exercise this right of freedom of speech and expression. The rights
originate from the US constitution. The role of Media is important as a feedback, exposure, & conduit
mechanism in all countries. The media have also played a traditional watchdog and gadfly role, in
38
investigating misbehaviour by politicians & officials & private business, a role traditionally summarised
as “comforting the afflicted & afflicting the comfortable. The fundamental right of the freedom of press
implicit in the freedom of speech & expression is essential for Political liberty & proper functioning of
democracy. As observed by the privy council in Channing Arnold V/s King Emperor "The freedom of the
journalist is an ordinary part of the freedom of the subject & to whatever length, the subject in general
may go, so also may the journalist, but apart from statute law his privilege is no other and no higher. The
range of his assertions, his criticisms or his comments is as wide as, and no wider that that of any other
subject." So freedom of press is very necessary things for a democracy.
An Overview Of The Constitutional Provisions Regarding the matter of Freedom of Press:- The
Preamble to the Indian Constitution resolves to secure for all the citizen of India, liberty of thought,
expression, and belief. According to Article 19(1) (a) of the Indian Constitution states simply that "all
citizens shall have the right to freedom of speech and expression". The companion -Article, Article 19(2)
qualifies this right by providing that the state can impose reasonable restriction on its exercise.
In the interests of the sovereignty and integrity of India.
The security of the state
Friendly relations with foreign states
Public order
Decency or morality or in relation to contempt of court
Defamation or Incitement to an offence.
The Indian Constitution while not mentioning the word "press" , provides for" the right to freedom of
speech and expression " ( Article 19(1)(a) . However this right is subject to restriction under sub clause
(2), whereby this freedom can be restricted for reason of “sovereignty and integrity of India, The security
of the state, friendly relations with foreign states public order, preserving decency, preserving morality,
in relation to contempt court, defamation, Incitement to an offence". Laws such as the official secrets Act
and prevention of Terrorists Activities Act (POTA) have been used to limit press freedom.
CONSTITUTION OF INDIA, PREAMBLE
Fundamental Rights under the Constitution of India (part iii) of the Constitution are those basic rights are
recognise and guaranteed as the natural rights interest in the statute of a citizen of a free country. These
39
right cannot be infringe or taken away from the citizen by a governmental action or statute except to the
extent permitted by the reasonable restrictions enumerate in clause (2) to (6) of Art 19.
Article 19(1)(a) does not refer specially to the freedom of the press as does, say the corresponding
Provision in the American Constitution, but judicial decisions have repeatedly affirmed that the article is
sufficiently wide to include the freedom of the press and, by extension, the freedom of other mass media.
In Ramesh Thapar case and in several subsequent cases strict and narrow limits have been placed on the
Legislative powers to abridge the right conferred by article 19(1)(a). Any restriction on article 19(1)(a)
can only is valid if three conditions are met - it is supported by the authority of law, The law in question
related to one or more of the permitted heads of restriction laid down under article 19(2) and
The restriction is reasonable. It is also necessary that the procedure and the manner in which the restriction
is imposed be just fair and reasonable. In India, freedom of the press has been treated as part of the freedom
of speech and expression guaranteed by article 19(1) (a) of the constitution, vide Brij Bhushan and another
Vs the state of Delhi, and sakal papers (P) ltd Vs Union of India, among others. However, as mentioned
in Article 19(2), reasonable restriction can be placed on this right, in the interest of the sovereignty and
integrity of India, the security of the state, public order, decency or morality ,or in relation to contempt of
court, defamation or Incitement to an offence. Hence, freedom of the media is not an absolute freedom.
RIGHT TO INFORMATION AND THE ROLE OF MEDIA:- Free of expression, free dissemination
of ideas and access to information are vital to the functioning of a democratic government. Information
crucial for vibrant democracy and good governance as it reflects and captures government activities and
processes. Access to information not only facilitates active participation of the people in the democratic
governance process, but also promotes openness, transparency and as in administration." Right to
information" (RTI), the right of every citizen to access information held by or under the control of public
authorities, it can thus be an effective tool for ushering in good governance. A direct relationship exists
between right to information, informed citizenry and good governance. The right to information provides
citizen the opportunity of being informed of what the government does for them, why and how it does it.
Right to information is the hallmark of good governance.
MEDIA AND DEVELOPMENT:- The media can make a real difference to the lives of poor and
disadvantaged people by :
Making people more aware of their rights and entitlements;
Enabling people to have access to Government programmes, schemes and benefits;
Making people more aware of political issues and options and helping to simulate debets;
40
Educating the public on social, economic and environmental issues;
Drawing attention to institutional failings- corruption, fraud, waste, inefficiency, cronyism, nepotism,
abuse of power and the like;
Fostering exchange of best practices, knowledge resources, access to better technology, and to better
choices;
Creating pressure for improved government performance, accountability and quality for example in
service delivery; and
Providing a discursive space for citizens to dialogue with others actors in the governance process.
The three main areas through which the media can make a significant impact on development and poverty
reduction are:
EMPOWERMENT:- It gives voice to the needs and aspirations of the people and provide them access
to relevant information. Media, in all its varied forms, has opened up the potential for new forms of
participation. Thus, the vulnerable and marginalized sections of the society such as the poor, women,
weaker sections and socially disadvantaged are also using the media to make their voice heard.
SOCIAL AWARENESS & ACTION:- The news media plays s decisive role in establishing a discursive
space for public deliberations over social issues. Giving a voice to the poor also entails giving the poor
people adequate opportunities to take initiatives for overcoming their problems. The media, through its
role in shaping public awareness and action, can be a critical factor in facilitating sustainable development
and poverty reduction.
GOOD GOVERNANCE:- Good governance is recognized as central to poverty eradication, and a free
media is a necessary condition for good governance. It’s monitors basic public service delivery and
promotes human development.
EFFECTS OF MEDIA IN OUR SOCIETY:- Every coin has two sides. There are both positives and
negatives of one single given notion. Media has a huge impact on the society the effects are of course
positives as well as negative. It is up to the people to decide which effects they want to back in. Media is
such a powerful tool that it literally governs the direction of our society today. It is the propeller as well
as the direction provider of the society. Opinions can change overnight and celebrities can become
infamous with just one wave by the media.
THE BRIGHT SIDE:- Information on the latest happenings reaches people in just a matter of minutes.
The vision of Media reaches even the remotest corners of the country and makes sure that everyone is
41
aware of what is going on the country. It bridges the gap between the leaders and the masses by becoming
their channel of communication. It can make heroes out of ordinary men. Media has significantly
promoted social causes like literacy, health management, anti-dowry practices, discouraging female
verified, AIDS awareness etc.
ON THE CONTRARY:- " The media's the most powerful entity on Earth. They have the power to make
the innocent guilty and to make the guilty innocent, and that's power. Because they control the minds of
the masses"- MALCOLM X
Media can adversely affect the thinking capability of individuals and in still negative or destructive
thinking patterns in the society as a whole. As already said before, media has the power to form and alter
opinions Media glorifies violence and contains graphic descriptions or images. When viewed by the
vulnerable portion of the society, i.e the children, it can have grave effects on their upcoming and thinking
patterns. The media can sometimes go out of the way in advertising or glorifying certain issues. Usually,
a bad or detrimental message is packaged in a glorious way and is made accessible to the public. At the
same time, it encourages them to Act in a way that promises adventure and thrill in life. This way, media
glorifies the bad aspects of people and encourage them to act in forbidden ways.
COMPARISONS WITH THE AMERICAN CONSTITUTION:- Article 19 (1)(a) finds its roots in
the First Amendment to the Constitution of the United States of America . The First Amendment reads:
Congress shall make no law respecting an establishment of religion, or, prohibiting the free exercise
thereof; or rising the freedom of speech, or of the press; or the right of the people peaceably to assemble
and to petition the government for a redress of grievance. Unlike the First Amendment to the American
Constitution, the Indian Constitution does not make specific or separate Provision for the freedom of press.
In Brij Bhushan Vs State of Delhi, the Supreme Court quashed a pre-censorship order against the
publishers of the organiser. The order passed by the authorities under section7 (I)(c) of the Punjab safety
Act 1949. The court held that section 7(I)(c) which authorised such a restriction on the ground that it was
necessary for the purpose of preventing or combating any activity prejudicial to the public safety or the
maintenance of public order did not fall within the purview of article 19(2).
RECOMMENDATIONS FOR ENSURING FREEDOM OF PRESS:-
1.) Codification of Legislative Privilege:- A complementary measure will be to insist upon the
Codification of Legislative Privilege, with the provision that where a breach of Privilege is alleged, the
legislature should only be permitted to file a complaint, the decision regarding whether contempt is proved
and so, the punishment to be awarded being left to a court of law.
42
2.) The Main Goal - Growth and Freedom:- What should never be overlooked when thinking of the
press in the Indian context is that it is only a free press which can help develop a body of citizens who are
well informed both regarding currents events and also about the problems facing the country; and the
alternative available for tackling them.
3.) Importance of constitutional Amendment:- All the difficulties in the way of ensuring that the press
can have the maximum freedom to carry out its function of collecting facts about different facets of
national life, analysing them and commenting upon them so as to keep the general body of citizens in our
young democracy well informed show that the press requires some special protection.
4.) Press Needs To Improve:-The inadequacies of the Indian press need not be combined at. There is no
doubt that private business and those who control it, are treated by most newspaper with kid-glove. It is
seen that the editors and journalist cannot have adequate freedom of collecting and disseminating facts
and offering comments as they are under the pressure of the capitalist owners.
5.) The State should stop becoming the Main Threat:- This resistance is necessary because experience
all over the world, as well as our own experience since independence, suggest that the state remains the
source of the most potential threat to press freedom.
PRESS IN INDIA AND THE REACTION OF SUPREME COURT
The press or media acts as important role of democracy. In fact, post - independence, the India press has
played a vital role in restraining corruption and injustice in the nation. The press is also instrumental in
arousing the general public's interest in the government and its operations. However, like everything else,
there is a flipside to this as well. Over the last few years, Yellow journalist has been rampant in Indian
press which has lead to widespread misconduct in the nation.
In Ramesh Thapper Vs State of Madras, the Supreme Court held that there can be, no doubt, that freedom
of speech and expression includes freedom of propagation of ideas, and that freedom is ensured by the
freedom of circulation. Liberty of circulation is an essential to that freedom as the liberty of publication.
Indeed without circulation the publication imposed on grounds mentioned in article 19(2) of the
constitution. A law which authorises imposition of restriction on "grounds of public safety "or the"
maintenance of public order" falls outside the scope of authorised restriction under clause (2) and therefore
, void and unconstitutional.
43
In Indian Express Newspaper Vs Union of India, the supreme court emphasized the importance of freedom
of press in three words: The expression freedom of press has not been has not been used in article 19 but
it is comprehend means within article 19(1) (a) . The expression means freedom from interference from
authority, which would have the effect of interference with the content and circulation of newspaper. There
cannot be any interference with that freedom in the name of public interest. The purpose of the press is to
advance the public interest by publishing facts and opinions without which a democratic doctorate cannot
make a responsible judgement. Freedom of the press is the heart of social and political intercourse. It is
the primary duty of the courts to uphold the freedom of the press and invalidate all Laws or administrative
actions, which interfere with it Contrary to the constitutional mandate.
In Bennet Coleman Company Vs UDI, the court held that freedom of press is both quantitative and
qualitative. Freedom lies both in circulation and in content. The fixation of page limits will not only
deprive the petitioners of their economic viability but also restriction the freedom of expression by
compulsive reduction of page level entailing reduction of circulation and the area if coverage for news
and views.
In Hamdard Dawakhana Vs UDI, the Supreme Court has held that an advertisement is no doubt a form of
speech and expression of ideas. In the present case the advertisement was held to be dealing with
commerce or trade and not for propagating ideas. Advertisement of prohibited drugs of article 19(1) (a).
In Printers (Mysore) Ltd Vs Assistance Commercial Tax Officer, the Supreme Court has though freedom
of the press is not expressly guaranteed as a fundamental Right, it is implicit in the all democratic countries
and the press has rightly been described as the fourth estate. The democratic credentials of a state are
judged by the extent of freedom the press enjoys in that state.
The Supreme Court has emphaszied that the freedom of the press is not so much for the benefit of the
press as for the general community because the community has a right to be supplied with information
and the government owes a duty to educate the people within the limits of its resources.
ORGANIZATIONS FOR PRESS FREEDOM:-
1.) American Civil Liberties Union
2.) Article 19
3.) Canadian Journalist for Free Expression.
4.) The Committee to Protect Journalist.
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5.) Electronic Frontier Foundation
6.) Index and Censorship
7.) Inter American press Association
8.) International Freedom of Expression Exchange.
9.) Media Legal Defence Initiative.
10.) Student Press Law Centre.
11.) Worldwide Governance Indicators.
12.) World Press Freedom Committee.
13.) Freedom of Press Act (1766).
14.) Journalism Ethics and Standards.
15.) International Press Institute.
CONCLUSION
In, Democracy the Government cannot function unless the people are well informed and free to participate
in public issues by having the widest choice of alternative solutions of the problems that arise, Article and
news are published in the press from time to time to expose the weakness of the governments. The daily
newspaper and the daily News on electronic media are practically the only material which most people
read and watch. The people can, therefore, be given the full scope for thought and discussion on public
matter, if only the newspaper and electronic media are freely allowed to represent different points of views
including those of the opposition, without any control from the Government. The following suggestions
are offered in this connection: Freedom of press may be inserted as a specific fundamentals right under
Article 19 of the constitution of India. Parameters of freedom of press should be clearly earned marked.
Information must be available at an affordable cost within specified, definite and reasonable time- limits.
Free press should violate right to privacy of an individual. Free press must be law enforcing and preventive
of crime. Rule of law must be followed by the free press. Influence through free press upon the judiciary
should not be exercised. Press is the watchdog to see that every trial is conducted fairly. Openly and above
board, but the watchdog may sometimes break loose and has to be punished for misbehaviour. It shows
that there are certain restrictions on the freedom of press.
45
In general we can say that freedom of the press is the freedom of communication and expression through
vehicles including various electronic media and published materials. While such freedom mostly implies
the absence of interference from an overarching state, its preservation may be sought through or other
protection.
46
A CRITICAL APPRAISAL OF UNIFORM CIVIL CODE WITH SPECIAL

EMPHASIS ON RECENT ISSUES
UNANZA GULZAR89
I. Introduction
The recent real politics on implementation of an aspirant directive principle for the State to secure for
citizens a uniform civil code throughout the territory of India as provided for under article 44 of the
Constitution constitutes the focus of this effort. It is an erroneous perception that we have different
personal laws because of religious diversity. As a matter of fact, law may differ from state to state. It
appears that the framers of the Constitution did not intend total uniformity in the sense of one law for the
whole country, because the power to legislate in respect of personal laws has been given to both Parliament
as well as state assemblies. Thus, personal laws can differ at least within 29 states and the Union. The
preservation of legal diversity seems to be the reason that personal laws were included in the Concurrent
List. Thus, one nation, one law is not what our Constitution really envisages.
Further, the debate of UCC recently has yet again gained momentum due to a petition filed before the
Supreme Court by Shayara Bano,90 a 35 year old Muslim woman which calls to ban the practice of triple
talaq and declare it as unconstitutional. The practices of polygamy and halala have also been brought
under the judicial scanner. The court declared triple talaq unconstitutional and gave parliament six months
to consider legislation for handling it. This has once again raised the question that whether UCC will be
the magic solution in weeding out such practices which are being considered as oppressive and anti-
women not only by people belonging to other religion but even group of people belonging to the same
religion? Apprehension thereby appears to get deployed by those tricksters who wish to take resort to the
similar means to smokescreen conservative campaigning within the community undercover and thereby
perpetuate their atrocity with impunity in the name of customary practice while rest of the world
underwent a metamorphosis to render the same redundant. Thus, both sides getting political in the stand-
off put the proposed codification to peril either way. If the same is accomplished by force, the same ought
to defeat democracy while the same is one among the basic features of the Constitution; if the same is put
to perennial wish list, the same ought to offend social justice while the same constitutes basic feature of
the Constitution.
89
Research Scholar, Faculty of Law, Jamia Milia can be reached at unanzagulzar@gmail.com
90
Shyara Bano v. Union of India. 2017 (9) SCALE 178,
47
Even all Hindus in the country are not governed by one law either. Marriage among close relatives is
prohibited by the Hindu Marriage Act, 1955, but it is considered customary in parts of south India. The
Hindu Code Bill does recognise these different practices. There is no uniform applicability of personal
laws amongst Muslims and Christians either. The Constitution itself protects the local customs of
Nagaland. Similar protections are enjoyed by Meghalaya and Mizoram. Take the example of Goa, which
is often lauded for having a Uniform Civil Code --Hindus there are still governed by the Portuguese family
and succession laws, and limited polygamy is permissible for them, but not for other communities. The
reformed Hindu law of 1955-56 is still not applicable to them. The Shariat Act of 1937 is not applicable
to Jammu & Kashmir, and so Muslims continue to be governed by custom governed by customary law,
which in many ways is at variance with Muslim personal law. And why talk of discriminatory personal
laws, when even land laws enacted after 1950 in many states are gender unjust? These laws have been
exempted from judicial scrutiny by including them in the IX schedule.
Hindu law has not been fully reformed after more than 70 years and despite several amendments. If this
reform could not be achieved in one go, despite Hindus being a majority community, then taking up
reforms in the minority communities in the absence of a conducive environment would be unwise. Like
the Hindu Law Reforms Committee which was formed in 1941, the Modi government should constitute,
as a first step, a Muslim Law Reforms Committee, Tribal and Indigenous Law Reform Committee,
Christian and Parsi Law Reforms Committees, and based on their recommendations, take the reform
process forward. We would then need a Hindu Law Committee as well, as some of the existing provisions
of codified Hindu law such as the solemnisation of marriage, saptapadi, kanyadaan, the sacramental nature
of marriage, joint family and tax benefits, testamentary powers and so on may not find a place in the
Uniform Civil Code, and provisions like dower or nikahnama (prenuptial contracts) might have to be
incorporated. Are Hindus ready for these reforms?91
II. Periphery between Gender Justice and UCC
For nearly eight decades, the women’s movement has discussed and debated the desirability and
feasibility of a Uniform Civil Code, and has ended up posing a simple question what is the value of
uniformity? Is it for the “integrity of the nation” that uniformity in laws is required, as some judicial
pronouncements have suggested? If so, who exactly is the beneficiary? Which sections of people
91
Faizan Mustafa, Are we really prepared for a Uniform Civil Code? September 12, 2017 available at
https://timesofindia.indiatimes.com/india/are-we-really-prepared-for-a-uniform-civil code/articleshow/6047, last visited on
October 6, 2017.
48
benefit from “integrity of the nation”? Or are uniform laws meant to ensure justice for women in
marriage and inheritance? In that case, a Uniform Civil Code would simply put together the best
gender-just practices from all Personal Laws. So yes, polygamy and arbitrary divorce would be
outlawed (a feature derived from Hindu Personal Law). But conversely a Uniform Civil Code would
require the abolition of the Hindu Undivided Family, a legal institution that gives tax benefits only to
Hindus, and all citizens of India would have to be governed by the largely gender-just Indian
Succession Act, 1925, currently applicable only to Christians and Parsis.92
There is already an optional uniform civil code existing in the form of the Special Marriages Act,
1954 and the Indian Succession Act, 1925. Any person in India can get his/her marriage registered
under the Special Marriage Act and Section 21 of the Act prescribes that, upon such registration, the
parties will be governed by the Indian Succession Act and not their personal law.93
Moreover, polygamy is not exclusive to Muslims. Hindu men are polygamous too, except that
because polygamy is legally banned in Hindu law, subsequent wives have no legal standing and no
protection under the law. Under Sharia law, on the contrary, subsequent wives have rights and
husbands have obligations towards them. If gender justice is the value we espouse, rather than
monogamy per se, we would be thinking about how to protect “wives” in the patriarchal institution
of marriage. This institution is sustained by the productive and reproductive labour of women, and
almost all women are exclusively trained to be wives alone.94
In July 2016, the Centre had asked the panel to examine the possibility of a Uniform Civil Code and
submit a report. The draft recently submitted said that personal laws on marriage, divorce, child
custody and inheritance are not always equitable and fair and do discriminate on the grounds of sex,
gender and sexuality. The draft code has proposed rules on these issues “in line with globally accepted
values of human rights”.95
92
See http://www.thehindu.com/opinion/lead/It-isn%E2%80%99t-about-women/article14488767.ece, last visited
on October 7, 2017.
93
The Uniform Civil Code Debate – What Is Missing, November 03, 2016 available at http://www.livelaw.in/uniform-civil-
code-debate-missing/, last visited on December 14, 2017
94
Md. Ahmed Khan v. Shah Bano Begum (1985) 2 SCC 556. Available at:
http://www.judis.nic.in/supremecourt/imgs1.aspx?filename=9303 (last visited on April 7, 2017).
95
Manan Vatsyayana, Allow gay marriages, give couples police protection if needed, suggests draft Uniform Civil Code,
available at https://scroll.in/latest/853850/allow-gay-marriages-give-couples-police-protection-if-needed-
suggests-draft-uniform-civil-code, last visited on October 16th 2017
49
The draft opens up a debate that conservatives on all sides would be reluctant to enter — underlining
that anything that is uniformly imposed on citizens must necessarily be progressive, and must address
all kinds of inequities and issues, not just religious ones, or those relating to women. It must be
inspired by the most far reaching ideas in discussion, and must allow for marriages between all kinds
of partners — male, female and transgender. The draft addresses the diversity of Indians and opens
new debates, while significantly also speaking for individual rights. Article 44 has over the decades
come to be seen as an issue of the Hindu Right alone, the draft Progressive UCC imagines an
alternative that is neither Hindu nor majoritarian.96
The draft, defines marriage as “a legal union” between straight and gay couples. On many matters,
like divorce, it aims to provide perfect equality between both partners, irrespective of gender. Further,
inequities caused by one set of laws should not be replaced by inequities and discrimination of another
type in the garb of UCC. If brought into force, Triple Talaq, unequal rights of men and women to
parental property, polygamy, and unequal privileges like the Hindu Undivided Family (HUF), which
allows for special tax concessions to Hindus would go.
We need a UCC that rejoices in humanity, a law that attempts to equalise the inequalities inherent in
our society, a code that celebrates and protects every individual, their rights, faiths, sexualities and
choices.97
III. Hitches and Alarms
1. Judicial approach
The Supreme Court of India has always been an ardent supporter of the UCC. It was the legendary case
of Mohd. Ahmed Khan v. Shah Bano98 that once again brought the issue of UCC on the preface. In this
much celebrated case the Supreme Court brought a divorced Muslim woman within the cover of section
125 of the Code of Criminal Procedure, 1973 and declared that she was entitled for maintenance even
after the completion of her iddat period. Although Supreme Court had assumed the role of a social
96
Drafting change: What the new ‘progressive’ intervention in Uniform Civil Code debate entails, October 18, 2017 available
at http://indianexpress.com/article/explained/drafting-change-what-the-new-progressive-intervention-in-uniform-civil-code-
debate-entails/, last visited on December 16, 2017
97
Uniform Civil Code draft handed over to law panel chief, October 12, 2017 available at
http://indianexpress.com/article/india/uniform-civil-code-draft-handed-over-to-law-panel-chief-4885969/, last visited on
December 14, 2017
98
Supra note 4.
50
reformer in many other previous cases. The judiciary has faced a plethora of problems in upholding the
social reforms in the private sphere that the legislation tries to bring through various enactments. This
raises another question of discrimination on the grounds of religion which is once again prohibited by the
Constitution vide article 14. How can the Supreme Court declare one practice as unconstitutional and
violative of human dignity for one section of women but let it remain constitutional for another section of
women since their personal laws allow it to be so?
In the case of State of Bombay v. Narasu Appa Mali,99 the Supreme Court was face to face with such a
situation. The constitutional validity of the Bombay (Prevention of Hindu Bigamous Marriages) Act, 1946
was to be determined by the High Court of Bombay. One of the two major contentions was that it was
violative of articles 14 and 15 since the Hindus were singled out to abolish bigamy while the Muslim
counterparts remained at full liberty to contract more than one marriage and this was discrimination on
the grounds of religion. Questions such as these were raised due to an absence of a common civil code
and clash of different principles in different personal laws. M.C. Chagla J. upheld the validity of the Act
by stating that it was not violative of any Fundamental Right since such prohibition should not be seen
through the lens of religious discrimination. He argued that the Muslims and Hindus differed from each
other not only in religion, but in historical background cultural outlook towards life and various other
considerations.
2. The threat of majoritarian dominance over minorities
The UCC is part of a larger project, like the right-wing position on the status of Kashmir or, of the temple,
and the same is likely to get set at rest into the perennial wish list for crowd-puller politics to score better
electoral mileage out of its otherwise prudent end vis-à-vis better governance. In a way or other, taken
together, these three resemble parallels of the directive principles in right-wing electoral policy: great to
watch, not to touch. Thus, has the proposed code been such, there is no need for the minority to get scared
on the count of their freedom of religion. For instance now for over a year the cow vigilantism have created
havoc claiming lives of people, injuring, intimating and harassing them, The hordes who call themselves
gau rakshaks have been on rampage, armed with the legislative legitimacy and protection. Numerous tasks
have taken place on vehicles carrying meat injuring many, harassing with confinement in police
custody.100 So today, a human life is worth less than cattle. At the same time, however, getting stuck to
99
AIR 1952 BOM 84
100
The economic and politics of ‘Gau Rakshaks’, peoples democracy, October 15, 2017 available at
http://peoplesdemocracy.in/2016/0918_pd/economics-and-politics-%E2%80%98gau-raksha%E2%80%99,last visited on
October 8, 2017
51
mediaeval parochial practice to gross detriment of gender justice ought to bounce back to the community
one day or other.
Also, last but not least, Hinduism being the minority in global context, right-wing force has had its own
stake to safeguard the presence of the Hindu community well within source state and more so while the
Hindu minority suffers atrocity with impunity in the very neighbouring state. 101 Likewise, Indian state
apparatus ought not to indulge in atrocity against the minority while it condemns the same elsewhere.
After all, charity ought to commence at home. The minority has had nothing to lose but their vulnerability.
The vulnerability has had no identity of its own and the same appears manifold, with all benchmarks
prescribed under article 15 of the Constitution.
3. Uniformity and rights of women: A myth exposed
Hence, before celebrating aspects of universality, it is necessary to see the darker side of the codification
of Hindu law. The status of Hindu woman still suffers from inferiority complex even after the codification
of the Hindu personal law. The western ideals of monogamy, divorce and maintenance indeed cured some
of the plaguing diseases in Hindu law, but for those Hindu communities who were much ahead of the
western ideals were brought back into a much more regressive personal law regime. For instance, the
marumakattayam system prevalent in Kerala, which was applicable to the Kerala Muslims prior to the
Sharia Act, 1937, had a well-developed and advanced divorce and maintenance systems. The system
rooted in matrilineal law had well developed succession laws for women as well. It was seen that the
universality of north Indian sanskritized system washed away probability of a better social reform. As an
afterthought such customs which conferred rights upon the women accepted from the general law.
IV. Conclusion
Rather than top-down approach for a self-contained code, prudence lies in bottom-up approach in
policymaking through building the consensus on uniformity. After all, these directive principles were
construed to have constituted the building blocks of state policy and the same is written in clear and
unambiguous language in headline of the chapter (part IV) itself.
In the given circumstance, the principle of uniformity may get inserted with slow yet steady approach-
through amendments in laws for the time being in force rather than as standalone piece of legislation in
itself. The practice appears in vogue since long back, e.g. the Special Marriage Act, 1954 got enacted three
. Bangladesh’s Hindus voice anger ahead of Hasina’s visit, Special Correspondent, The Hindu, Monday, April 3, 2017, at 2.
101
Available at: http://www.thehindu.com/todays-paper/tp-national/tp-otherstates/bangladeshs-hindus-voice-angerahead-of-

hasinas-visit/article17765513.ece (last visited on October 3, 2017)
52
decades after the Indian Succession Act, 1925 to follow the same legacy and thereby create space for those
willing to get adhered to uniformity without much ado for the codification. A systematic slow-yet-steady
proceeding toward clustered codification for uniformity- rather than crocodiles’ cry for de novo code to
get born with fire and fury of those from the minority- is likely to grapple with errant patriarchs inside a
creed better; with the same law of the land- albeit in bits and pieces- getting used as cane to tame them as
and whenever occasions arise. Thus, object and purpose of the codification under article 44 of the
Constitution may get served sans resort to legislative bricks and mortars for another piece in the house
already crowded by statutes
Two questions need to be addressed which are being completely ignored in the present din around UCC.
Firstly, how can uniformity in personal laws are brought without disturbing the distinct essence of each
and every component of the society. What makes us believe that practices of one community are backward
and unjust? If one does not address these questions with gravity and depth, then we would commit the
same horrible mistake of the Americans who considered the indigenous population as savages, needed to
be liberated from their customs and rescued by the progressive, civilised norms of Christianity.
The second question is that whether uniformity has been able to eradicate gender inequalities which
diminish the status of women in our society? This question is interlinked with the previous question. The
definitions of inequality may differ from community to community. It is necessary to determine the layers
of gender injustices and inequalities that work separately in one society than in the others. The personal
law of one society, without a doubt are dotted with many aspects which are contradictory to the sense of
gender equality existing in that society. The first step therefore is to eradicate those unjust practices which
are endemic to that specific society. Instead of hurriedly creating a uniform definition of injustice and
inequality, which is the dominant point of view, it is necessary that all these societies first recognise the
definitions of inequality and injustice within their peculiar sphere of life. Otherwise, what is happening is
that these societies become defensive against the demands of uniformity and injustices within their
communities are rendered invisible.
This positive side of the debate on UCC time and again reminds the people to tend to the diseases in their
personal law system and adjust them to the contemporary times, by taking inspirations from another
community which might be more progressive in some aspect. It must never be forgotten that all this is a
slow process and any undue haste would only result in failure rather than the desired outcome.
53
A to Z of TRIPS: AN AGREEMENT ON TRADE RELATED ASPECTS OF

INTELLECTUAL PROPERTY RIGHTS
DR. NANDAN SHARMA102 & MS. DEVSHREE SHARMA103
INTRODUCTION
Emergence of the TRIPS Agreement
The Agreement on Trade related Aspects of Intellectual Property Rights (hereinafter referred to as TRIPS),
together with the 1967 Stockholm Conference that adopted the revised Berne and the Paris Convention
which created the World Intellectual Property Organization (WIPO) can be termed as the most significant
milestone in the development of intellectual property rights in this century. It not only widened the scope
of industrial property but also made provision to cover up for failed treaties. Thus, its scope was much
vast than any of the erstwhile international agreement. The real worth of the TRIPS agreement was due to
its success in enshrining very detailed rules on the issue of enforcement.
For an understanding of the progression of the TRIPS, it is necessary that we should trace the
history of intellectual property rights and the vital role played by GATT in enhancing its protection. As
already discussed the initiative for establishing ITO was launched in 1946 by a decision of the UN Council
for Economic and Social Affairs (ECOSOC).
A committee comprised of representatives from18 countries were asked to draft the ITO charter
for the purpose of promoting the expansion of trade and protection exchange and consumption of goods. 104
Ultimately a couple of conferences lead to the signing of a treaty on October 30, 1947 adopting GATT at
Geneva. Failure to adopt ITO charter led to the restructuring of the GATT and its Secretariat from 1948
till the establishing of the World Trade Organization (WTO) on January 1, 1995. The GATT was applied
on a provisional basis as a covenant amongst a number of governments. Thus, it was applied to
government not citizens and was not self-executing. The interim committee of ITO was the employer of
the GATT secretariat staff.
GATT allows contracting parties to adopt or enforce measures which are necessary to secure
compliance with laws or regulations which are not consistent with the provision of this agreement
including those relating to the protection of patents, trademarks, copyright etc. 105 The Provisions were
invoked in two disputes brought before GATT panels. Apart from this, WIPO also administered two
principle international intellectual property covenants- The Paris Convention for the Protection of
102
Associate Professor, School of Law, Shoolini University, Solan, HP, India
103
Research Scholar, Punjab University, Chandigarh.
104
See the Guide to GATT Law and Practice, (VIth Ed. ), (1995), p. 3
105
Article XX (d), GATT
54
Industrial Property and the Berne Convention for protection of Literary and Artistic Works. WIPO also
administers a number of agreements designed to facilitate acquisition of multi country production for
industrial property.106 But the absence of detailed rules on enforcement of rights in front of national
judicial administrative authorities and the absence of binding and effective dispute settlement mechanism
were main flaws in the Paris and Berne Conventions. In addition to this the evolution of the world trading
system, sky rocketing importance of intellectual property and technology changes, especially generally
computerization and digital technology, required a serious updating of intellectual property rules.
The Uruguay Round
To remove the above said shortcomings and bring in new standards, the ministerial conference
launched the Uruguay round of multilateral trade negotiations at Punta del est in September, 1986. The
United States and Japan submitted proposal to the round’s preparatory Committee to cover all intellectual
property rights and their enforcement.107However Brazil and Argentina opposed the inclusion of it. The
ministers included the item "Trade Related Aspect of Intellectual Property Rights" including trade in
counterfeit goods. This round was the broadest and most extensive multilateral agreement in the field of
intellectual property. It covered the entire area and added enforcement, acquisition and most favored
nation obligation to the existing rules. The negotiations had to essentially address the question of trade in
counterfeit goods taking into account the work already done in the GATT.
The pressure on the developing countries to ratify GATT was immense. A powerful group of US
chemical, pharmaceutical, computer, entertainment, publishing and electronic corporation lobbied with
the US government108 to introduce intellectual property issues into the multilateral trade negotiation under
the GATT. The chairman of Pfizer, a US based pharmaceutical company, was considered the driving force
behind this move. He was made the chairman of the Advisory committee for trade negotiations in 1981 to
shape the US trade policy. 13 major US corporations formed the Intellectual Property Rights Committee
(IPRC) to set out an agenda for what he wanted to achieve through the international trade negotiation. To
enhance the pressure US enacted the Trade and Competitiveness Act, 1988 with an aim to promote US
exports and reduce US trade deficit. It invoked section 301 of the Trade Act of 1974 that authorized the
United State Trade Representative (USTR) to identify countries that deny adequate and effective
protection of IPRS, identify priority countries that are IPR transgressors and do not make progress in
negotiations with USTR and initiate accelerated section 301 investigations on practices of identified
106
The Nice Agreement for trademark, the International Patent Classification, the Locarno Agreement, the Vienna Agreement
are a few of them
107
See, “Intellectual Property Rights in NAFTA: Implication for healthcare and industrial policy in Ontario,” Ecumenical
Coalition for Economic Justice, (1993), p. 10
108
Ibid
55
priority countries.109 On May 25th, 1989, office of the USTR, identified 17 countries on intellectual
110
property watch list and 8 countries on Priority Watch List." India was among the later and asked for
improved and adequate patent protection for all classes of inventions under USTR's accelerated action
plan."111 Similar the US Pharmaceuticals Manufacturers Association (PMP) filed a complaint on Brazil
patent regime for pharmaceuticals and was declared unreasonable. Chile, Argentina and Venezuela were
also targeted in similar way. All these countries ultimately adopted law or prepared bill that met US
demands. These legislative changes were introduced merely to avoid trade sanctions imposed by US.
The importance of technology in the development of international trade was considered as primary
reason that led to the incorporation of Intellectual Property Rights in the GATT. Apart from this increasing
interface between trade, technology and Intellectual Property Rights, the developing countries were
continuously arguing against the inclusion of Intellectual Property Rights in GATT. Technology was
considered as a strategic factor for national development during 1960s and 1970s and by the year 1980 it
evolved as a strategic element to control international markets. 112 The internationalization of high
technology and its rapid diffusion created diverse conditions, and the developed countries argued for its
effective regulation. The United States sought the inclusion on the ground that failure to respect and
enforce Intellectual Property Rights was harmful to trade relations and that such infringements amounted
to permitting the existence of NTBS (Non-tariff Barrier) in this area.113 Most of the developed countries
were in consonance with the views expressed by US however Japan, EC and Nordic countries showed
some differences. Developing countries argued that setting of norms and standards was beyond the
competence of GATT. It is to be noted that at a time when some developing countries had turned from
import substitution to more aggressive export oriented policies, the importance of creating a comparative
advantage and acquiring technological competitiveness was paramount.114 This realization saw these
states approach GATT and IPRS. The reduction of dependency and a more active participation in
technological change along with realization of potentialities of strong science base marked their response
to protect Intellectual Property Rights.
TRIPS Negotiations: Main Approaches
Developing Countries
109
Surender J. Patel, "Intellectual Property Rights in the Uruguay Round. A disaster for the South," Economic and Political
Weekly, (1989), p. 24
110
USTR fact sheets on super 301 trade Liberalization priorities and special 301 on Intellectual Property, National Working
Group on Patent Laws, (Vol. XVI), (1989), p. 16
111
Id at 20
112
Paolo Bifani, “Intellectual Property Rights and International Trade in Uruguay Round,” Papers on Selected Issues, (1989),
p. 130
113
Id at 135
114
Id at 164
56
The TRIPS Negotiating Group met twice in July 1989 to discuss, first the applicability of basic
GATT principles to intellectual property and secondly the provision of adequate standards regarding the
availability, scope and use of intellectual property rights. 115 There were two broad approaches in the
TRIPS negotiations. A number of developed countries had made written submissions to the Negotiating
Group on TRIPS notably the United States, Japan, Switzerland and EC. These countries stressed that
inadequate and discriminatory protection of intellectual property rights constituted a major distortion to
trade and should be dealt within the framework of GATT. The developing countries on the other hand
maintained that it was not within the mandate of GATT or Negotiating group to consider the protection
of Intellectual Property Rights by elaborating upon substantive norms and standards compulsory for all
the states.
India and Brazil were the front runners to oppose the GATT negotiations on TRIPS. The
fundamental issues that Brazil raised in the discussions with the negotiating group were: 116
 The extent to which rigid and excessive protection of intellectual property rights impended the
access to latest technological developments, restricting the participation of developing countries
in international trade
 The extent to which the abusive use of intellectual property rights gave rise to restrictions and
distortions in international trade.
 The implications that a rigid system of intellectual property rights protection held with respect to
international trade.
In nutshell, the Brazilian submission restricted its view to the consideration of the trade related
and developmental aspects of intellectual property rights. They argued that such a rigid monopoly situation
created by excessive protection of Intellectual Property Rights would be a serious restriction on trade.
The Indian submission also set out its views on the provision of adequate standards and principles
concerning the availability, scope and use of trade related aspects. India identified some particular areas
like working of patents, compulsory licenses; product verses process patents, term of patent and exclusions
from patentability as crucial in achieving the development objectives. 117 India maintained that member
states should be given freedom to tune their intellectual property protection system with their own needs
and conditions. India’s basic approach may be broadly described as follows:118
115
The report is contained in document MTN.GNG/NG11/13 available in http://www.wto.org/english /tratop_e/ trips_e/t-
agm O-e. htm , (Visited on 25/06/2016)
116
Ibid
117
Intellectual Property Rights – Standards and Principles concerning its availability, scope and use – The Indian view,
Document MTN.GNG/NGI/W/37, July 10, 1989
118
Ibid
57
 The evolution of patent system both in industrialized and developing countries would clearly
establish the correlation between the economic, industrial and nature and technological
development of country with the nature extent of patent protection granted.
 Patent system is an instrument of national economic policy for the industrialization and
technological advancement of a country.
 There should be no attempt at the harmonization of patent laws of the industrialized and developing
countries nor there did any imposition on the developing countries as to the standards and
principles relevant to develop countries.
 Patent law must focus equally on the duties and obligations of the patent owner.
 Giving due consideration to sectors of critical importance to developing countries like food
production, nutrition health care, poverty alleviation and disease prevention.
The essentials of the position taken by India in general, reflected a view of patent protection that
could be identified in its own patent legislation. These flexible features of the Indian patent law were put
forth before the Negotiating Group for a more favourable patent regime for developing countries.
Developed Countries
United States
The developed countries, notably the United States, Japan, EC and Switzerland made written
submissions to the Negotiating Group on TRIPS. The position of the United States represented the
interests of the MNC's and sought to create a favorable domestic and international environment for their
smooth working. Thus, its proposals reflected the ideas put forward by the MNCs from time to time.
According to them, the protection of intellectual property rights fostered creative activity and innovation
and encouraged investment in the commercialization of new ideas and technology. Its main focus was to
change the relationship between trade and deficiencies in the protection of intellectual property rights, the
identification of deficiencies in intellectual property rights protection and the review of existing disciplines
in the GATT and other international convention. In its views, the deficiencies in the protection of
Intellectual Property Rights distorted the trade in goods and reduced the value of concessions negotiated
in the previous rounds of trade negotiations. The inadequacies identified by the US in the national laws
included:119
(a) Total lack of patent or copyright laws.
119
Statement by the United States (GATT), Document MTN. GNG/NG 11/ W/2.3, April, 1987
58
(b) A narrow scope of protection under intellectual property laws.
(c) The term of protection was too short to permit the inventor time to test the product, market it and
achieve adequate return on investment.
(d) Misuse of compulsory licensing programs. The United States also regarded the lack of effective
enforcement of national laws relating to intellectual property rights as a form of trade distortion.
They stressed that the standards laid down in some international conventions were unacceptable
as they failed to provide adequate protection to intellectual property rights. In the ultimate analysis, the
US sought to create new standards and principles to provide adequate protection. As an immediate step,
the US proposal even suggested that interested contacting parties should sign a draft Agreement on
measures to discourage the importation of counterfeit goods without modification to the existing text.
European Communities
The European Community (EC) proposals identified trade related issues of intellectual property
rights in three areas:120
(a) Inadequacies in the availability and scope of rights.
(b) Inadequate procedures and remedies for the enforcement of such rights and
(c) National laws which discriminated against imports in favour of domestic economic activity.
The proposal specified the legislative provisions in the patent laws of countries which resulted in
inadequacies in protection particularly relating to food, chemical and pharmaceutical products. Granting
of process patent as opposed to product patent in chemical sector gives rise to 'counterfeiting.' The
compulsory licensing of pharmaceutical patents of the product patented was also seen as a factor leading
to trade distortion which could lead to a negative impact on the recovery of considerable investment
needed to sustain innovation in the pharmaceutical sector. Another crucial aspect of discrimination was
the 'preferential' treatment of activity on national territory i.e. rules which discriminate against activity
abroad.121This deprived the European inventors of the possibility of obtaining a patent to which they would
otherwise be entitled.
Japan
120
Submission by European Communities, MTN. GNG/NG 11/ W/ 7.29, May 29, (1987), p. 2
121
Ibid
59
The Japanese proposal listed problems or cases caused by insufficient protection of intellectual
property rights which could create impediments for legitimate trade. The proposal viewed the problem in
two ways namely:122
(a) The problems resulting from discrepancies in the national intellectual property rights laws and
(b) The problems concerning the enforcement of intellectual property rights.
More specifically, the Japanese proposal focused on the difficulties faced by Japanese
entrepreneurs in getting adequate patent protection. The intellectual property law of Japan was revised in
1987 to incorporate all the major features of the international patent law. 123 Thus diversities in various
national laws of member countries were the chief component of Japanese proposal.
Nordic Countries (Finland, Iceland, Norway and Sweden)
The submission of the Nordic countries were focused on two issues concerning the trade related
aspects of intellectual property rights namely:
(a) Inadequate level of protection and
(b) Adverse trade effects arising from national procedures.
Referring to the problems of inadequate protection, the submission referred to the inadequacies in
the international conventions, such as lack of specific obligations on the extent to which intellectual
property rights could be protected. Problems are also created by long periods while application for patent
is pending and complexities of procedure. Therefore, the Nordic countries supported the need to address
trade related aspect of intellectual property rights by developing rules and disciplines multilaterally.
Similar was the Swiss submission favouring negotiations for additional provisions in order to
remedy distortions arising from insufficient level of protection of intellectual property. The Swiss
submission attempted to equate the protection of physical aspects of goods and the intangible component
of products. However, it could not explain in clear terms the exact nature of legal framework which could
sub serve the concept of adequate protection of intellectual property. Thus, the major thrust of all the
developed nations was a strong patent protection regime. Both the contentions of developed as well as
developing nations were put in form of two basic approaches A and B figuring in the 'chairman's report
on the group of ‘Negotiation on Goods' drafted by Chairman Lars Anell. 124
122
Id at 7
123
Nobuo Monya, "Intellectual Protection of Intellectual Properties and Japenese Laws,” The Japanese Annual of
International Law, (1987), p. 57
124
Ibid
60
Conflict and Compromises
The submission made by both the developing and the developed countries clearly outlined the
differences in approaches towards the redefining of regulatory mechanisms concerning intellectual
property rights. Among developing countries only India and Brazil gave detailed proposals, however
among developed the list was long. The fundamental differences between both the groups pertained to
patentable subject matter, limitations on patentee's right, inadequate duration of protection and inadequate
enforcement. As regards the main issue i.e. patentable subject matter the US model was accepted that used
the phrase “all products and processes,” and novelty, inventive step and industrial applicability as criteria
of patentability.125 A brief survey of proposal submitted by different group of countries clearly established
the fact that the developed countries in order to protect their technological superiority wanted strict patent
regime. These proposals went beyond the limits placed by the Paris Convention which did not make any
attempt to define 'patentability' and ‘patentable subject matter.'
The final agreement, sought to liberalize major sectors of the economic process except those
concerning intellectual property rights. It was evident that the proposals submitted by the developed
countries primarily considered the interests of a few influential commercial groups particularly MNCs.
The text of final act incorporated the proposals of developed countries. The removal of distinction between
product and process patent was set to leave a far reaching impact on the pharmaceutical and Chemical
sectors of many of the developed countries. Till very recently many of the developed countries were
grating only process patents in the pharmaceutical sectors to achieve faster economic growth and to
provide health care to all by maintaining low prices of drugs. But the draft reflected the negotiating
objectives of the developed countries.
During the negotiations in December, 1991, Author Dunkel, Director General of GATT presented
a set of proposals, popularly known as ‘Dunkel’ Proposal.126 The 108 participating states were given time
till January 13, 1992 to respond to the proposals. The final act was adopted in Marrakesh on April 15,
1994.127
TRIPS – AN ANALYSIS
125
Sanjay Lall, “The patent system and the transfer of technology to Least Development Countries,” Journal of World Trade
Law, (1976), p. 1
126
Biswajit Dhar, C.Niranjan Raw, “Dunkel draft on TRIPS: Complete denial of developing countries Interest,” Economic
and Political Weekly, (1992), p. 27
127
Ibid
61
The Agreement on Trade Related Intellectual Property Rights (TRIPS), signed at Marrakesh was
an annex to the agreement establishing the World Trade Organization (WTO). The agreement established
a link between international trade and international intellectual property regime. TRIPS is said to be
comprehensive agreement on intellectual property dealing with all types of intellectual property rights.
The establishment of the new regime had put an end to the sole role of WIPO in the management of
international intellectual property regime.128 The agreement was an instrument to maintain the
technological supremacy of the developed countries. The agreement prescribes minimum standard of
protection to the following forms of intellectual property rights:
 Copyright and Related rights

 Trade marks
 Geographical Indications
 Industrial designs
 Patents
 Integrated Circuits
 Undisclosed Information
 Anti-Competitive Practices in Licensing agreements.
Apart from prescribing the minimum standards of protection the agreement sought to follow the
standards set by other Intellectual Property treaties.129 This made a party to the agreement to be ipso facto
member of the other treaties viz Bern Convention, Rome Convention, Paris Convention and Washington
Treaty on integrated circuits. The agreement consists of VII parts viz. General provisions and basic
principles, standard concerning the availability, the scope and use of intellectual property rights,
enforcement of intellectual property rights, acquisition and maintenance of intellectual property rights and
related interparty procedures, the dispute prevention and settlement, mechanisms transitional
arrangements, institutional arrangements and final provisions. Some main features are:
 Scope of Patentability (Article 27)

 Conditions on Patent Applications (Article 29)
 Rights and exceptions to Rights conferred (Article 28 and 30)
 Compulsory Licensing (Article 31)
 Burden of Proof (Article 34)
 Enforcement (Article 41-64)
128
Michael Blakeney, “Trade Related Aspects of Intellectual Property Rights, concise guide to TRIPS,” (1996), p. 1
129
Article 1(3), TRIPS Agreement
62
 Dispute Settlement (Article 64)

 Transitional Arrangements (Article 64)
The states which are a party to these arrangements are obliged to legislate their Intellectual
Property laws in a manner which makes it compatible with the agreement per se. Thus the implementation
of the TRIPS should be done in a manner conducive to the specific context of each country. The scope
and length of protection should be limited in order to strike an appropriate balance between creations and
dissemination.
Objective and Scope of the TRIPS Agreement
According to the preamble of the Agreement on Trade Related Aspects of Intellectual Property
Rights the main objective of the agreement is “to reduce distortions and impediments to international
trade, and taking into account the need to promote effective and adequate protection of intellectual
property rights such that they do not themselves become barriers to trade.” Further it states,130 “The
underlying public policy objectives of national system for the protection of intellectual property
including developmental and technological objectives.” Article 7 and 8 of the agreement elaborates
them. According to Article 7 objectives of, protection and enforcement of intellectual property rights
should contribute to the promotion of technological innovation and to the transfer and dissemination of
technology, to the mutual advantage of producers and users of technical knowledge in a manner conducive
to social and economic welfare and to balance of rights and obligation.
Further, the agreement gives freedom to the states in formulating or amending their national laws
and regulations, adopt measures necessary to protect public health and nutrition and to promote public
interest in the sectors of vital importance.131 It also authorized the states to formulate rules against abuse
of patent rights. State could implement the TRIPS agreement according to its socio economic conditions
provided it is not inconsistent with the agreement.132 Thus, the TRIPS provisions could be implemented
by the states within the frame work provided by Article 7 and 8.
Scope of Patentability (Article 27)
The scope of patentability is the scope of an invention to get patent protection. Article 27 provides
minimum protection to inventions irrespective of the field of invention. Patents are now available for any
inventions, whether product or process in all fields of technology provided they are new, involve an
inventive step and are capable of industrial application.133 It also ensures that patent rights shall be
130
Preamble of the TRIPS Agreement
131
132
Article 1, TRIPS Agreement
133
63
available and enjoyable without discrimination as to the place of invention, field of technology and
whether products are imported or locally produced.134 The Article further allows the member states to
exclude certain inventions from patentability on grounds of morality, decency and plant, animal or human
life to avoid serious prejudice to the environment. However, the Agreement protects inventions of micro-
organism, non-biological and microbiological products of plants and animals.
A clear cut distinction needs to be drawn between discovery and invention. The concept of
invention has under gone change in the industrialized nations. Thus, every state which is a party to the
Agreement has freedom to define what an invention is. The term discovery is used to mean the mere
recognition of what already exists. It is the finding of causal relationship, properties or phenomena that
exist in the nature.135 However, an invention entails developing a solution to a problem by applying
technical means. This distinction prevents certain items from being patented. According to the dominated
practice; an invention should be new in absolute terms in order to qualify for patent protection. The
absolute novelty demands that the invention should not be part of the prior art in any part of the world.
However, the US practice varies. In US, novelty will not be lost when invention is divulged in non-written
means such as public use and sale.136 It was this concept of US that resulted in the patenting of traditional
Knowledge for e.g., patent on neem and turmeric etc.
Regarding the requirement of inventive step there are divergent practices. According to the US
practice, the critical date of examining inventive step is the date of the invention. In other countries it is
the date of the patent application. Further in the US obviousness is judged on the basis of a claimed
invention using the prior art and the level of ordinary skill. 137 In Europe, the emphasis is on the extent to
which the invention solves a technical problem.
Lastly, the industrial application requirement is synonymous with the term 'useful' given under
the Agreement. Hence in the US one invention needs to be capable of satisfying some function of benefit
to humanity. However in Europe it is the industrial application that matters. This means that the EC would
not allow the patentability of purely experimental inventions. This is specifically enacted in Argentinean
Patent Law which requires that invention causes an industrial result or product to be obtained.138 As a
result the patentability of methods of surgical, therapeutically and diagnostic methods, methods of
treatment of humans and animals are not considered as inventions.139
134
Ibid
135
David I Bainbridge, Intellectual Property, 1992, pp. 270-272
136
Ibid
137
Ibid
138
Article 4, Argentina Patent Act
139
Article 27(2) and (3), TRIPS Agreement
64
Disclosure (Article 29)
The full disclosure is considered as one of the basic principles of patent law. It is in exchange for
the cost of monopoly granted to the inventor or patentee. An applicant for a patent shall disclose the
inventing in a manner sufficiently clear and complete for the invention to be carried out by a person skilled
in the state of art.140 The State may also require the applicant to indicate the best mode of carrying out the
invention known to the inventor at the date of filing or where priority is claimed, at the priority date of the
application.141 The purpose of this best mode is to prevent the right holder from hiding the invention from
the public. It also prevents excessively broad claims. For instance, the applicant sometimes seeks
protection to methods on products that have not been described in the application. The national laws can
demand information on the source or place of origin of the biological material deposited. According to
the Indian Patent Act, the disclosure of source and geographical origin is mandatory. Further, the
biological materials mentioned in the specification are available to the public immediately after the
publication of the application.142
Rights of a Patentee (Articles 28 and 30)
Under the TRIPS Agreement, a product patentee can exclude third parties from the act of making,
using, offering for sale, selling or importing for those purposes. 143 The same is applicable for process
patent.144 The Agreement also grants certain exception to the exclusive rights granted on three conditions,
these are :145
 They must be limited
 They should not be in conflict with the normal exploitation of the patent.
 Exceptions should not unreasonably prejudice the legitimate interest of the patent owner.
Based upon these conditions a few examples of these exceptions provided by various countries
are, use of the invention for research, use of the invention for teaching practices, experimentation on the
invention to test or improve on it, preparation of medicine, bonafide use of the invention by third party
that had used it before the date of application of patent, parallel import146 and experiments made for the
140
141
Article 29 (2), TRIPS Agreement
142
See Patent Act,1970
143
144
145
146
Importation of a patented product that has been marketed in another country with the consent of patent owner
65
purpose of seeking regulatory approval for marketing of a product after the expiration date (Bolar
exception).147
Compulsory License (Article 31)
It is a part of public policy that tries to balance the monopoly rights of the patentee with the
competition and consumer rights. Compulsory License is one of the main mechanisms used for this
purpose. A compulsory license can be defined as authorization given by a national authority to a person
without or against the consent of the title holder, for exploitation of a subject matter protected by a patent
or other intellectual property rights. 148 A compulsory license operates only at the request of the person.
TRIPS does not use the term, 'Compulsory License' but it uses other use without the authorization of the
right holder. A compulsory license is non-exclusive and non-transferable.149 Grounds for granting
compulsory license are.
 Emergency and extreme urgency – Article 31(b)
 Anti-competitive practices – Article 31 (j)
 Public non-compulsory use – Article 31 (b)
 Dependent patents – Article 31 (k)
 Refusal to deal – Article 31 (b)
However, TRIPS like earlier cases allows states to have some space to safeguard their interest
interest.
Enforcement (Article 41 and 64)
Apart from the above mentioned provisions enforcement of intellectual property rights was a major
issue for discussion. Pre-existing Intellectual Property laws contained few provisions in this area. A
notable feature of the agreement is the detailed provision for the enforcement procedure. Article 41 sets
the general obligation on enforcement. Articles 42-50 spell out the civil and administrative procedures
and remedies. Article 61 requires the institution of criminal remedies in case of willful trade mark
counterfeiting and copyright piracy on a commercial scale. Articles 51-60 provides an important remedy
in form of border measures. The Agreement does not provide any special court for Intellectual Property
cases.
147
Supra note 140 at 280
148
149
Jayashree Watal, Intellectual Property Rights in the WTO and developing countries, (2001), p. 333
66
However, the states are obliged to give powers to the courts to issue injunctions both permanent
and interlocutory. Judicial authorities should be given power to issue damages as remedial measures. A
Border measure obligates the state on request of the right holder, with competent authorities,
administrative or judicial, for suspension by the customs authorities of the release into free circulation of
such goods.150
Dispute Settlement (Article 64)
According to Article 64 the resolution is governed by Article XXII and XXIII of the GATT
Agreement of 1994 and understanding on Rules and Procedures governing the settlement of Disputes.
These envisage a time bound and binding dispute settlement mechanism. However, there is an exemption
to this rule–sub paragraphs of Article XXIII I(b) and I(c) of GATT 1994 i.e. non violation complaints
does not apply to the TRIPS Agreement for a period of 5 years from the date of entry into force of the
WTO Agreement. During this 5 years period TRIPS council is to reach a consensus on the course of action
with regard to the non-violation complaints.
Conclusion
Intellectual property system provides a boost to the national wealth and contributes considerably to its
sustainable development. Hence, there is a great economic value attached with promoting the use of the
intellectual property system and ensuring its effective protection. Protection of Intellectual Property is
conducive to increased investment in the economies that provide for such protections. It is also a notion
to enhance its international trade. In general the economic value of Intellectual Property Rights depends
on its competitive capability and scope for its enhancement and protection. Thus an intellectual property
system helps in expanding a country’s economic and trade programs. The TRIPS Agreement laid down
basic minimum criteria for patentability irrespective of technological and economic development of
participating countries. The Agreement made drastic changes in the international patent regime. It
prescribed a universal minimum protection for patent including the scope of patentability, rights of the
patentee, duration of protection, compulsory licensing, burden of proof and set up an enforcement
mechanism.
150
67
TALAQ-E-BIDDAT: THE INVISIBLE SHADOW

PIYUSH & SATYABHAMA KAUSHIKEI151
Introduction:
“A deeper study of the subject discloses a surprisingly rational, realistic and modern law of divorce.” In
its original unadulterated form, it indeed was rational, realistic and modern but has by efflux of time been
awfully distorted beyond recognition.”
VR Krishna Iyer
Marriage, as distinguished from the agreement to marry and from the act of becoming married. is the
civil status of one man and one woman united in law for life, for the discharge to each other and the
community of the duties legally incumbent on those whose association is founded on the distinction of
sex.152 But the cohabitation at times may lead to disputes which may also rust the marital machinery. It
carries with it the rapier of Divorce in case if either party fails to fulfill the obligation put upon by the law.
This is probably the reason that most of the cases where the parties fail to stand on the expected pedestal
by the other, leads to dissolution of the holy relation of marriage by way of divorce. But due to lack of
any central and uniform document, every community is being regulated by their own “Personal Law”.
Personal laws are said to be the laws that governs a person’s family matters, regardless of where the person
goes.153 They are the laws governing the people of a particular religion. 154.They get their origin and
perpetual nature in the customs and religious practices. These Laws are basically an amalgamation of
discrimination and inequalities, still they continue to be in force. 155 Recently the hon’ble Supreme Court
has set aside the one such practice of triple talaq 156. Earlier the Muslim women were devoid of the full
panoply of the fundamental rights. In furtherance to the judgment the parliament has initiated the process
of making a legislation to cure this infirmity by passing the bill 157 from the Lok Sabha.
This paper will deal with the intricacies of various existing legislations that govern and deal with the
divorces in Muslim community such as Muslim Personal law Application Act,1973(hereinafter referred
to, as Shariat Act), Dissolution of Muslim Marriage Act,1939. Apart from specific legislation, special
emphasis would be laid upon Article 13, 14, 21 and 25 of Constitution of India which are relevant with
regard personal laws and triple talaq as an integral part of religion. The authors will also examine the laws
related to divorce in other Islamic countries and according the rationale shall be brought into picture. The
paper will also deal with the scope, extent and applicability of the rights evolved by the judicial
interpretation.
Origin of Triple Talaq:
The word “talaq-e-biddat” itself has an unexplored history which needs minute examination.
151
Student, National University of Study and Research In Law, Ranchi
152
Black’s Law Dictionary(10th edition), 2014.
153
Black’s Law Dictionary(10th edition), 2014.
154
Saldhana v. Saldhana AIR 1930 Bom. 105.
155
(I)Muslim law recognizes unilateral divorce by the husband, but not by the wife.
(II) Section 10 of the Indian Divorce Act, places heavier burden on the wives, to obtain divorce.
156
Shayara Bano v.Union Of India, AIR 2017 SC 4609.
157
The Muslim Women (protection of rights on marriage) bill 2017.
68
Biddat is an arabic word which comes from the root word “bidaah” which means to create something new
without previous existence. Imam Yahya bin Sharf Nav'vi writes “biddat” means to innovate something
which was not performed in the time of Prophet Muhammad. Imam Shafi writes “innovations” has two
broad categorizations. The very first type of innovation includes such acts that are against Quran and
Hadith or actions of companions (of Prophet Muhammad) or the faith of the Muslim community,and are
called “biddah-e-Zalala” or simply bad innovations. Second type of innovation covers such acts that are
done for goodness, but those acts should not contradict any order of shariat and are called “biddah ghair
mazmomah” (good innovations).
In Sahih-Muslim, it has been stated that three divorces were treated as one during the lifetime of the
Prophet Mohummad(PBUH), Caliph Abu Bakr and Caliph Umar’s regime.158 Imam Abu Hanifa, Imam
Malik and Imam Hanbal recognized talaq-e-biddat as sinful and not permissible.159 The Ijma of Prophet
Mohummad which was further carried by his companion is that triple talaq uttered in one sitting will be
considered as one and a revocable one.160
The same was further maintained by the eminent Hanafi jurist Muhammad ibn Maqatil 161. The great jurist
Maulana Umar Ahmad Usmani has also maintained the ijma of mohummad and concluded that a man can
give only one talaq in one sitting as per the teachings of Quran and the Sunnah.162
“Triple talaq”, it is a 1,400-year-old practice among Sunni Muslims. It is "manifestly arbitrary" and
permits a man to break down marriage whimsically and capriciously”. Triple talaq as a practice is not
mentioned in the Quran or Sharia law. It is also majorly disapproved by Muslim legal scholars. It is
affected by one definitive pronouncement or three simultaneous pronouncements of “talaq”.
From the above quoted information, it can be very well established that talaq-e-biddat is not a practice
which the Quran talks about anywhere but it has been brought into practice by some groups of the Muslim
community during the second half of reign of Caliph Umar. It is said that the concept of triple talaq was
in introduced in the reign of Ommeyad Kings, which with passage of time became a customary practice
and further a customary law to utter three talaq at one sitting and making it valid. It can be very well said
that Triple Talaq was never recognized by the Islamic scriptures. It is just a practice which was falsely
interpreted by the communities for their own convenience.
Judicial Pronouncements:
History of the present Indian judiciary has been embraced through two phases of its development. Firstly
with the advent of British Rule and the other one is after independence. During British rule, the common
phrase used during those days was “Triple Talaq is good in law, though bad in theology”, which can be
interpreted as “what is bad in theology is good in law”. However, this trend has been continuing to
independent India too and all the courts in British India as well as in Independent India had declared the
158
[Sahih-Muslim 9: 3492]
159
Alamgir Muhammad Serajuddin, Shari’a Law and Society: Tradition and Change in the Indian Sub-continent (Dhaka:
Asiatic Society, Bangladesh, 1999) at p. 148.
160
Al-Shaukani, Nayl al-Awtar (Egypt, n.d.), Vol. 6, pp. 25-57.
161
Ighathat al-Lahfan (Egypt, 1961), Vol. 1, p. 308
162
Maulana Umar Ahmad Usmani, Fiqh al-Quran, op. cit., Vol. 2, p. 209.
69
triple Talaq as lawful and effective. The Hon’ble Bombay High Court in the case of Sara Bai v. Rabia
Bai163, recognized “triple divorce” on irrevocable footing.
The Hon’ble Madras High Court in the Aisha Bibi v. Qazi Ibrahim164 held that the Talaq addressed to
the wife in her absence, were repeated three times, which is capable of showing the intention to dissolve
the marriage, and followed by execution of a deed for divorce which stated that three divorces were given
in the abominable form , the presence of wife is unnecessary.
The Hon’ble Calcutta High Court in the case of Fulchand v. Namal Ali165 held that as far as the
effectiveness of triple talaq is concerned, presence of the wife makes no difference. Subba Rao J. observed
that166 “We, therefore, hold that it is not necessary for the wife to be present when the talaq is pronounced.
Triple divorce to be effective, it is imperative that it should be addressed to the wife in particular sense".
Further Hon’ble Allahabad high court in the case of Ameer Uddin v. Khatoon Bibi167 held that even if
the husband pronounces talaq in three different sentences but at the same time, it will amount as one
effective and irrevocable talaq.
In the case of Rashid Ahmed v. Anisa Khatun168, the privy council upheld Talaq-e-biddat or triple talaq
as valid even in the absence and without the knowledge of the wife.
In the case of Ahmad Giri v. Begha169 the court for the first time reckoned the importance of “Intention”
in the matter of Talaq and its effectiveness.
K. Iyer J. in the case of A. Yousuf Rawthher v. Sowramma170 held that, the unbridled power of husband
to divorce is in contrary to the Quranic provisions and Muslim law as applied in India .
Baharul Islam J. in the case of Ziauddin v. Anwary Begum171 after a persuasive consideration of several
previous privy councils and high courts judgments on triple talaq, delivered a revolutionary judgment
through the paramount source of Islam i.e. Quran and Hadiths. He held that the earlier judgments were
neither consonant to holy Quran nor to Hadiths. He further observed that the holy Quran and hadiths
permits the divorce, yet the right should be exercised under some exceptional and agonizing
circumstances, after all the remedies for reconciliation have been exhausted.
Sources of Islam relating to Talaq reveal that neither the husband nor the wife has unbridled power to
divorce and the unintentional triple talaq uttered in a single breath is a complete negation of Sharia. In the
case of Rukia Khatun v. Abdul Khalique Laskar 172, the court held that the correct procedure of talaq
163
ILR (1905) 30 Bom 537.
164
(1910)3, Madras 22
165
(1911)36 Calcutta 184.
166
Ibid.
167
AIR 1917, Allahabad343.
168
AIR 1932 PC 25.
169
AIR 1955 J&K 1.
170
AIR 1971 Ker. 261.
171
1978 (Unreported) Criminal No. 1999, of 1977, Quoted by Dr. Saleem Akhtar: Shah Bono Judgement in Islamic
Perspective, P. 114, 1st ed. (1994), Kitab Bhawan New Delhi.
172
(1981) 1 Gau. L.R. 375.
70
as ordained by the Quran is that the talaq should be followed by an attempt to reconciliation between the
husband and wife by two arbitrators from each sides, as advocated by verse 35 of Holy Quran.
In Shamim Ara v. State of U.P.173 the Hon’ble Supreme Court had held that valid talaq should be
obtained for a reasonable cause and after an exhausted attempt for reconciliation. If both the conditions
are not fulfilled, talaq will be declared as invalid. The same was again upheld in the case of Shahzad v.
Anisa Bee and others174.
It can be very well established from the above discussion that the Indian judiciary while in the reign of
Britishers as well as that of independent India upheld the triple talaq as valid in most of the cases. This is
because of the binding precedent set in the case of Aga Mohmmad v. Koolsoom Bee175 in which the
privy council held that it will be of great disrespect to comment on the Quran as an antiquity and high
authority to Islam.
But in the past few years, the judiciary has gone through a dynamic and macroscopical change in its
decisions by hearing the vociferous cries and demand for declaring triple talaq as unconstitutional. It was
finally achieved in the milestone case of Shayara Bano v. Union of India176.
The Shayara Bano Case177
The historic judgement which broke the stereotypical practice of Talaq-e-biddat and gave the Quranic
injunctions the true meaning which they always carried but was misconstrued by some communities is
none other than the case of Shayara Bano v. Union of India.178
The facts of the case route back to 2015 when Rizwan Ahmed, the husband of the current petitioner
Shayara Bano approached the Court of the Principal judge, Family Court at Allahabad, by preferring a
matrimonial case for restitution of conjugal rights because he alleged that his wife never wanted to stay at
her matrimonial home and was often reluctant to fulfill her matrimonial obligations. Then, she preferred
a transfer petition for seeking the transfer of the case to Principal judge, Family Court, Kashipur,
Uttarakhand. Further the respondent contended that since his wife was not ready for reconciliation, he
withdrew the suit and divorced her before two witnesses through talaq-e-biddat on 10th October,2015
.Then, she sought a declaration before the Supreme Court to declare this practice of “Talaq-e-biddat” as
unconstitutional on several grounds which will be discussed further.
The iconic judgement delivered by the constitutional bench comprising of Justices Nariman, Justice Lalit,
Justice Joseph, Chief Justice Khehar and Justice Nazeer rendered this practice as unconstitutional by 3:2
majority. The crux of the judgement is that the practice infringes the fundamental rights enshrined in
articles 14,15 and 21 of the Constitution of India,1950. Article 25 only protectes “integral” or “essential”
aspects of religion. In view of the Holy Quran, triple talaq was an “irregular” way of terminating the
Muslim spousal relationship, it could not, under any circumstances, be held to be an essential aspect of
Islam .The name itself suggests that triple talaq provided leaves no room for compromise. This form of
173
2002 (7) SCC 518.
174
(2006) 1 MP LJ 555.
175
1897, 24 I.A.
176
Supra 5
177
Supra 28
178
Supra 28
71
Talaq is manifestly arbitrary in the sense that the marital tie can be destroyed capriciously and whimsically
by a Muslim man without any attempt at reconciliation so as to save it. This form of Talaq must, therefore,
be held to be violative of the fundamental right contained under Article 14 of the Constitution of India.
Constitution of India and Personal Law:
Article 13 is the primary safeguard of all the fundamental rights provided in part-III of the Indian
Constitution. As it declares all laws, before the enactment of constitution as well as laws made by the
legislature, void insofar the said laws violates the fundamental rights. 179 This provision depicts the picture
of court as savior and guardian of the fundamental rights.180
Article 13 states that “law” includes any Ordinance, order, bye law, rule, regulation, notification, custom
or usages having in the territory of India the force of law 181. It further states that laws in force includes
laws passed or made by Legislature or other competent authority in the territory of India before the
commencement of this Constitution and not previously repealed, notwithstanding that any such law or any
part thereof may not be then in operation either at all or in particular areas. 182 In the case of State of
Bombay v. Narasu Appa Mali183 , it was held that the personal laws do not come within the ambit of
Art.13(3)(a). It was further affirmed in the case of Madhu Kishwar and Ors. v. State of Bihar184 . Later
in the case of Maharishi Avdhesh v. Union of India 185, the court held that even the codified personal
law cannot be judged on the touchstone of fundamental rights.
In the case of Amini EJ v. Union of India186, a full bench of Hon’ble Kerala high court held that if a
personal law through any of its provision infringed should test its constitutionality though personal law
does not fall within the purview of art.13. Eminent scholars and jurists like D.D. Basu 187 and H.M
Seervai188, have also opined that personal laws including their non-statutory parts are subject to article
13(1).
With reference to Triple Talaq, The Muslim Personal Law (Shariat) Application Act,1937 is the foremost
legislation which deals with application of Shariah, which is the religious legal machinery governing
Indian Muslims. As per Sec.2 of Act, 1937, Shariah applies to Talaq as well. With reference to religion it
means “Divorce” but in the eyes of law it means an arbitrary and unbridled power which the husband
possesses of divorcing his wife at all time.189
Article 14 of the constitution ensures that the Right to Equality which is the pith of democracy and a basic
structure of the constitution which further includes the principle of natural justice and non-arbitrariness.190
It is regarded as a necessary corollary of rule of law191 with an object to secure Equality of Status and
179
State of West Bengal v. Committee for protection of Democratic Rights, West Bengal, AIR 2010 SC 1476 (1490).
180
Brij Mohan Lal v. Union of India, (2012) 6 SCC 502 (569).
181
Article 13 (3) (a) of the constitution of India.
182
Article 13 (3) (b) of the constitution of India.
183
AIR 1952 Bom 84.
184
,AIR 1996 SC 1864.
185
Supp (1) SCC 713.
186
AIR 1995 Ker 252.
187
D.D.Basu, Constitutional Law of India, 254-255 (Wadhwa and Company, Nagpur, 2007).
188
H.M Seervai, Commentary on the Constitution of India, Vol. I, p. 155 (1965).
189
J. Schacht, Encyclopedia of Islam (Brill publications, Volume III, 1998) pp. 636-640.
190
M. Nagaraj v. Union of India, (2006) 8 SCC 212.
191
Ashutosh Gupta v. State of Rajasthan, (2002) 4 SCC 34.
72
Opportunity192. Every state action needs to be grafted with reason and any act without any reason will
amount to arbitrary action193. In case of triple talaq, a husband possesses arbitrary power to divorce his
wife unilaterally. The wife can only divorce if such rights are provided by husband himself. Utterance of
triple talaq is absolutely arbitrary as it does not ensure the right to equality to Muslim women with that of
men. Any provision valid before the commencement of the constitution can be declared as unconstitutional
for by later development for social reforms such as gender equality194.
Article 21 of the constitution provides that “no person shall be deprived of his right to life and personal
liberty except according to the procedure established by law.” 195 The due process has two forms:
Substantive due process, wherein the law must be just and fair and not arbitrary or oppressive 196 and
Procedural due process wherein the aggrieved is given a fair right of hearing. The personal liberty cannot
be set aside by a law, arbitrary, unreasonable and unfair in nature197. Further in case if the husband after
divorce want to marry her again the women need to marry another man and then get divorce from him or
if he dies then only she can marry her former husband again. It is humiliating and against the dignity of
the women.198
Right to freedom of conscience and free profession, practice and propagation of religion as enshrined by
Article 25 of the constitution is another important basic feature of the Indian constitution. It guarantees
rituals, ceremonies, ways of worship, etc. which are integral part of the religion under article 25 and 26. 199
To consider such practices as a part of the religion, these acts must full fill the condition of being integral
and essential part of the religion. The court has power to decide issues of integral and essential part of
religion200. Earlier also the Hon’ble Supreme Court has delved into religious matters to decide the status
of a practice as essential and integral.201 Further Article 25(2) empowers the state to make laws for social
reforms and such an action will not be violative of Art. 25. 202
Under Art.51 India is obliged under this convention and instruments in order to achieve the international
goal.203 And under Article 253204 the state is empowered to make legislations and law to implement the
international treaty , agreement or conventions which will have jurisdiction for the whole or any part of
the territory of India.
The Supreme Court has recently given a landmark judgment in the case of Shayara Bano v. Union of
India205, declaring the talaq-e-biddat as unconstitutional.
International perspective:
192
Natural Resources Allocations, In Re Special Reference No. 1 of 2012, (2012) 10 SCC 1.
193
Bannari Amman Sugars Ltd. v. CTO, (2005) 1 SCC 625.
194
John Vallamattom v. Union of India, (2003) 6 SCC 611.
195
Article 21 of the Constitution of India.
196
Delhi Airtech Services Pvt. Ltd. v. State of U.P., (2011) 9 SCC 354.
197
Maneka Gandhi v. Union of India, (1978) 1 SCC 248.
198
Francis Coralie v. Administrator, Union Territory of Delhi, (1981) 1 SCC 608.
199
N. Adithyan v. Travancore Devaswom Board, (2002) 8 SCC 106.
200
H. H. Srimad Perarulala Ethiraja Ramanuja Jeeyar Swami v. State of Tamil Nadu, AIR 1972 SC 1586, at 1593.
201
State of Rajasthan v. Sajjanlal, (1974) 1 SCC 500; E.R.J. Swami v. State of Tamil Nadu, AIR 1972 SC 1586; Mohd. Hanif
Quareshi v. State of Bihar, AIR 1958 SC 731.
202
VII Constituent Assembly Debates, 547 (1948).
203
Article 51(c) of the Constitution of India.
204
Article 253 of the Constitution of India.
205
Supranote 5
73
Making human rights as a universal concept turns out to be the corner stone of international human rights
law. Universal Declaration of Human Rights in 1948 was the first successful attempt towards it, later on
the principle laid in it was reiterated in numerous of international human rights convention, declaration
and resolution. Some of them are listed below:
Universal Declaration of Human Rights, 1948.
A movement in 1948 in United Nations resulted in the adoption of Universal Declaration of Human Rights
by the general assembly of the United Nation. This organic document provides some basic principle of
administration of justice.
“All human beings are born free and equal in dignity and rights”. 206
Everyone is entitled to right without any discrimination of any kind, such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth or other status. 207
International Covenant of Economic, Social, and Cultural Rights,1966
In 1966 the General Assembly body adopted the covenant of Economic, Social, and Cultural rights.
The present covenant undertakes to ensure the equal right of men and women to the enjoyment of all
economic, social and cultural rights set forth in the present Covenant.208
Convention on the Elimination of all forms of Discrimination Against Women 209
“The state parties to pursue elimination of discrimination against women, by adopting appropriate
legislative and other measures, including sanctions where appropriate, prohibiting all discrimination
against women.”210
To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations,
customs and practices which constitute discrimination against women.211
It enjoins the states to take all appropriate measures to ensure full development and advancement of
women, for the purpose of guaranteeing to them, the exercise and enjoyment of human rights and
fundamental freedoms on the basis of equality with men.212
Further principle of equality was reaffirmed in the Second World Conference on Human Rights, held at
Vienna,213 wherein the historic steps were taken to promote the rights of women, by supporting the
creation of a new mechanism.214 Again it was reaffirmed in the Fourth World Conference on Women,
held at Beijing.215
206
UNDHR,1948, Article 1.
207
Art.2
208
ICESCR, 1966, Article 3.
209
CEDAW,1993.
210
Id, Art.2(b).
211
Id, Art.2(f).
212
Id, Art.3.
213
SWCHR,1993.
214
Special Rapporteur on Violence against Women.
215
FWCW, 1995
74
As per above stated provisions it appears that conventions are solid organic documents to eradicate the
acts of discrimination and inhumane treatment. But it is very unfortunate that India even after ratifying
some of the international instrument is still struggling for its ground reality.
Reforms in Islamic Countries:
Many Islamic countries have gone under a huge reform to invalidate the practice of triple talaq which was
being practiced since time immemorial. These changes were the results of teaching by eminent scholars
and jurists for a very long time.216 In Sri Lanka, if a husband wants to divorce his wife he is required to
give a notice to Qazi, followed by an attempt of reconciliation and even after the attempt of reconciliation
if nothing results as a fruitful outcome then he can give divorce in presence of Qazi and two eligible
witness.217 Most of the Islamic countries or countries having Muslim domination have also abolished the
practice of triple talaq. Tunisia218, Egypt219, Syria220, Sudan221, Malaysia222. Further countries like Pakistan
and Bangladesh have also abolished the said practice.223 Philippines being a secular state on this issue
enshrined Code of Muslim Personal law.224 It further sanctions punishment for failure to comply with the
statutory provisions and procedures.225 Other countries like Indonesia226, Yemen227, United Arab
Emirates228, Morocco229, Libya230, Kuwait 231, Iraq232 and Algeria233, have also made it mandatory to
institute a suit in order to get divorce.
These facts show that passing a legislation in order to achieve higher goal by eliminating ill practices like
triple talaq is neither violative of religious freedom provided by the constitution nor disrespect of any
religious scripture.
THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON MARRIAGE) BILL,2017
The above was initiated so as to protect the Muslim women from the ever notching practice of talaq-e-
biddat which was already declared unconstitutional in the iconic case of Shayara Bano v.Union of India234.
It consists of three chapters and also covers the objects and reasons which led to its emergence. Chapter I
216
Muhammad Munir, Triple Talaq in One Session: An Analysis of the Opinions of Classical, Medieval, and Modern
Muslim Jurists, under Islamic law 27 Arab L. Q. 29–49 (2013)
217
Section 27 of Marriage and Divorce (Muslim) Act, 1951 as amended till 2006.
218
Article 30 of the Tunisian Code of Peronal Status of 1956.
219
Article 3 of Law No. 25 of 1929, as amended by Law No. 100 of 1985 Concerning Certain Provisions on Personal Status
in Egypt
220
Article 92 of Law No. 34 of the Law of Personal Status of Syria of 1953.
221
Article 3, Shariah Circular No. 41/1935 of Sudan.
222
Article 47, Islamic Family law Act,1984.
223
Article 7, Muslim Family Laws Ordinance, 1961
224
Article 2, Article 161, Code of Muslim Personal Law, 1961
225
Id., Article 183,
226
Article 38, Law of Marriage,1974 and Article 14, Marriage Regulations 1975.
227
Article 64 of the Republican Decree Law No. 20 of 1992: Concerning Personal Status of Yemen.
228
Section 103(1) of Qanun al-Ahwal al-Shakhsiya (Personal Law) of UAE No. 28 of 2005,
229
Article 79, Code of Personal Status, 2004.
230
Article 28, Family Law,1984.
231
Article 109, Code of Personal Status, 1984
232
Article 39, Code of Personal Status, 1959.
233
Article 49, Code of Family Law, 1984.
234
Supra
75
describes the extent of territorial jurisdiction of the act, if enacted. It shall extend to the whole of India,
except for Jammu and Kashmir. Chapter II defines the keywords like ‘electronic from, ‘talaq’ and
‘magistrate’ referred in the legislation ascribed from other statutes. Chapter III declares the declaration of
talaq void and illegal and the further declaration of it’s being an offense. The rest of the bill carries with
itself the objects and reasons behind this move. But the sad irony is that it carries many logical and legal
drawbacks which are enough to nullify its objects.
Firstly, going by the title, itself “THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON
MARRIAGE) BILL,2017”, it minimizes the scope of talaq-e-biddat being a punishable offense because
it infringes the rights of the women and thus the Quranic injuctions are ignored. India is a secular country
and thus the legislature should try to discard such faiths which are not permitted by the religious scriptures
itself. Moreover, is it the only right on marriage a married Muslim female should have? The title of the
bill may create a confusion that the bill concerned talks about every right which she is entitled to.
Clause(b) of Section 2 of Chapter I defines talaq as talaq-e-biddat or any other form of divorce having
instantaneous and irrevocable effect of termination of nikah. But the very important element of exhausted
means of reconciliation is missing which is the most major ingredient as advocated by verse 35 of the
Holy Quran.
Then section 3 merely states the declaration of the above stated talaq in any form to be illegal and thus it
is declared as an offense under section under section 7 of the same act and the corresponding punishment
is prescribed in section 4. It is legally incorrect as the language of the section reads “Any pronouncement
of talaq by a person…..”.The word person has been defined by The Indian Penal Code,1860 as any
company, asscociation or body of persons, whether incorporated or not. Firstly, the bill itself says about
the protection of Muslim women from men and then the usage of the word “person” makes it vague. Most
importantly, it lacks the element of “mens rea” at the time of saying talaq. If a Muslim man says to his
wife, “Hey, I will say Talaq Talaq Talaq tomorrow.”, he is definitely pronouncing but not intending so
the whole purpose of the act gets injured and now the question of rights of Muslim men would arise. The
authors fear that again a bill would be passed for protection of rights of Muslim men.
Moreover, Muslim marriages are civil contracts per se. Divorce definitely amount to its breach. Is it legally
and logically justified to declare a civil wrong as a criminal offense? This would prima facie shake the
roots of jurisprudential framework of categorization of wrongs.
SUGGESTIONS
The authors have tried to analyses the iconic judgement of Triple Talaq and the THE MUSLIM WOMEN
(PROTECTION OF RIGHTS ON MARRIAGE) BILL,2017 and accordingly the contentions have been
made. But the first question arises as to why there was such a judgement and emergence of such a bill.
The answer is truly simple. Women's voices and inputs were rarely sought and almost never taken into
consideration as men continuously negotiated among themselves rules pertaining to familial issues, such
as marriage, divorce, and maintenance.235 Men "played god" by interpreting his commands in the holy
scripture regarding what was required of a woman to vaporize her from the pious bond of marriage, when
a woman could be stamped as a disobedient wife and her husband could deny her maintenance, and how
235
BARLAS ASMA, "BELIEVING WOMEN" IN ISLAM: UNREADING PATRIARCHAL INTERPRETATIONS OF THE
QUR'AN 94-95 (2002); JUDITH E. TUCKER, WOMEN, FAMILY, AND GENDER IN ISLAMIC LAW 30-31 (2008)
76
many days a woman must wait succeeding her divorce before she makes herself available to another man.
These laws were not carved in stone by God, but are laws made based on male interpretation of what God
may have meant by a particular verse, word, or phrase in the holy scripture.236 It was no where mentioned
in the Holy Quran that a Muslim man can pronounce divorce in a single breath, but it was duly
intentionally misinterpreted by Muslim men. Thus, the first suggestion of the authors is that the courts and
the government should take an initiative to check whether the holy scriptures are rightly interpreted or
not. School children should be taught this as a necessary discipline, because one or the other way their
personal laws will affect their lives later on which may become a public dispute if a fundamental right is
violated.
The next puzzling question is that whether mere declaration of triple talaq being unconstitutional be
needful? But would the situation of a Muslim woman be any distinct if she is not divorced in one sitting
but in three consecutive sittings? What is even more painful for women is that once they are divorced
under the Muslim Women's Act, they are denied of their right to maintenance and no court in the nation
has declared the Muslim Women's Act as unconstitutional and granted divorced women right to
maintenance. Though the bill talks about the same, but since it has been discussed minutely by the authors
that it contains many flaws , so even if implemented it can be easily countered because it is painted with
such drawbacks which will make its execution difficult.
Further since we are live in a country where people from diverse culture reside. So every legislation should
be formed after its relation with every minority group is satisfied. The Family Courts Act is an instance
of how specificity of minorities is overlooked and not heard when legislations are framed. The family
courts were supposed to provide speedy, informal and inexpensive forums to settle marital disputes. But,
for example, in Bombay their jurisdiction is limited to Hindus and those married under Special Marriages
Act,1954. The jurisdiction over matrimonial disputes of minorities rests with the high court where the
procedures are expensive and way more technical. This has resulted in a notching number of women
turning to Qazis for an amicable settlement under the customary form, who again interpret the Holy Quran
from their masculine perspective as discussed above and thus the whole cycle gets repeated where women
suffer mental, physical as well as social injuries. While holding such divorces as invalid, the state has not
made any provisions for quick settlement within formal court procedures.
Islamic feminism in India can further be beautified if the legislature adopts a secular approach towards
Uniform Civil Code. The absence of a UCC in the last quarter of the twentieth century is an incongruity
that cannot be justified with all the emphasis that is placed on secularism, science and modernism. The
continuance of various personal laws which accept discrimination between men and women violates the
fundamental rights.237 If a uniform civil code exists, that will be truly fruitful because it will insure equal
treatment in cases of marital issues with reference to all communities.
The next suggestion that the authors tend to give is about taxing the practice of triple talaq instead of
issuing criminal sanctions. The authors have already stated that since Muslim marriage is a contract and
divorce amounts to breach and the remedy should be per se tortious. According to this perspective, talaq
236
Supra note88
237
Menon Nivedita, Women and Citizenship, in WAGES OF FREEDOM FIFTY YEARS OF THE INDIAN NATION-STATE
241, 244 (Partha Chatterjee ed., 1998) (quoting MINISTRY OF EDUC. & Soc. WELFARE, INDIA DEP'T OF Soc.
WELFARE, TOWARDS EQUALITY: REPORT OF THE COMMITTEE ON THE STATUS OF WOMEN IN INDIA 142
(1974)).
77
is a tort and may contradict public policy, but civil courts should not declare talaq invalid or ban courts
from recognizing Muslim law. Civil courts should not grant sweeping recognition to talaq, accompanied
with no other expected remedy for the harmed woman (and mahr cannot be considered as damages for the
harm resulting from talaq). Rather, they should award damages without changing the marital status. This
right exists in Muslim law, but there is a price related to it, which makes for a successful pluralistic
settlement between mismatched values, even if the religious right is incomplete practically. Unlike civil
family law, which divides the property in an equitable manner, tort law compensates for the humiliation
and degradation caused by harm to the woman's autonomy.' 238
Moreover, Non-Governmental organizations like All India Muslim Personal Law Board should also play
a vital role in these matters. Our plea with MPLB and concerned Muslim intellectuals is to initiate
measures for drafting a comprehensive law duly codified and framed which will embody the Qur'anic
spirits. The Board in the meanwhile should launch an awareness campaign against misuse of polygamy,
etc. Triple Talaq should also view that the amount of 'mahr' paid is substantially high (part of which can
be deferred) to discourage easy route to 'talaq'. The Qur'an itself promotes high amount of mahr and mahr
is woman's right. In the case of divorce it can provide her with a measure of economic security. The
authors hope that the above suggestions could be of some use to eradicate this existing demon of triple
talaq which demeans the dignity of women.
CONCLUSION
Finally, it can be concluded that triple talaq is surely against the basic tenets of the Holy Quran. The
judgement declaring triple talaq unconstitutional is truly iconic. Though Muslim law is a personal law but
it cannot be used to violate the constitutional morality. Quran never permitted it but rather it has been
brought into practice by some groups of the Muslim community during the second half of reign of Caliph
Umar. It has always been an issue of great controversy in various, but finally the judgement was finally
given where it was held contrary to articles 14,15 and 21. Further, it does not deserve protection under
article 25 for the above said cause. There have been several conventions where this has been the central
dispute. Few other Islamic countries have also declared it unconstitutional. Further, the bill elucidated
also contains many flaws and needs reconsideration. The authors have tried to give the workable
suggestions in this regard. Lastly, it can be said that a Holy scripture can never be wrong, unless interpreted
wrongly.
238
ANDERSON ELIZABETH, VALUE IN ETHICS AND ECONOMICS 167, 217-18 (1993)
78
JUDICIARY & THE FOURTH ESTATE

ADITYA PRAKASH & AAYUSHI CHAUDHARY239
INTRODUCTION
Indian Media consist of several different types of communications: television, radio, cinema, newspapers,
magazines, and Internet-based Web sites. Media history is fairly short, although the various forms of
media that have developed over the years have made a tremendous impression on the technological,
political, economic, social and cultural trends of every nation. It primarily developed in just the last 500
years. Earlier developments, along with the technological advances and social change, helped spark the
demand and innovation necessary for creating today’s mass media.240Indian media was active since the
late 18th century with print media started in 1780, radio broadcasting started in 1927, and the screening
of Auguste and Louis Lumière moving pictures in Bombay initiated during the July of 1895. It is among
the oldest and largest media of the world. Media in India has been free and independent throughout most
of its history, even before establishment of Indian empire by the Great Ashoka on the foundation of
righteousness, openness, morality and spirituality. The period of emergency (1975–1977), declared by
Prime Minister Indira Gandhi, was the brief period when India's media was faced with potential
government retribution. India the 11th largest country in the world in terms of broadband Internet users,
as of 2009, India is among the 4th largest television broadcast stations in the world with nearly 1,400
stations.241 Today, Media General owns or operates 31 TV stations in 27 markets. Media General reaches
16.5 million, or 14%, of U.S. TV households.242
According to the Oxford dictionary law is the system of rules which a particular country or community
recognizes as regulating the actions of its members and which it may enforce by the imposition of
penalties.243 The common law tradition emerged in England during the Middle Ages and was applied
within British colonies across continents. The civil law tradition developed in continental Europe at the
same time and was applied in the colonies of European imperial powers such as Spain and Portugal. Civil
law was also adopted in the nineteenth and twentieth centuries by countries formerly possessing distinctive
legal traditions, such as Russia and Japan, that sought to reform their legal systems in order to gain
239
5th Year, BA LLB, Chanakya National Law University, Patna
240
History and development of mass communications, available at http://www.eolss.net/sample-chapters/c04/e6-33-02-
01.pdf accessed on 10th January, 2018.
241
Brief history of Indian media, mass com now, available at http://masscommnow.blogspot.in/2012/04/brief-history-
of-indian-media.html accessed on 10th January 2018.
242
About Media General, Media General, available at http://mediageneral.com/about/history/index.html accessed on
11th January 2018.
243
Law, oxford dictionaries language matters, available at http://www.oxforddictionaries.com/definition/english/law,
accessed on 12th January 2018.
79
economic and political power comparable to that of Western European nation-states.244 Ancient India
represented a distinct tradition of law, and had a historically independent school of legal theory and
practice. The Arthashastra, dating from 400 BC and the Manusmriti, from 100 AD, were influential
treatises in India, texts that were considered authoritative legal guidance. 245 Manu's central philosophy
was tolerance and pluralism, and was cited across Southeast Asia. 246 Early in this period, which culminated
in the creation of the Gupta Empire, relations with ancient Greece and Rome were not infrequent. The
appearance of similar fundamental institutions of international law in various parts of the world shows
that they are inherent in international society, irrespective of culture and tradition. 247 Inter-State relations
in the pre-Islamic period resulted in clear-cut rules of warfare of a high humanitarian standard, in rules of
neutrality, of treaty law, of customary law embodied in religious charters, in exchange of embassies of a
temporary or semi-permanent character.248
With the advent of the British Raj, there was a break in tradition, and Hindu and Islamic law were
abolished in favour of British common law.249 As a result, the present judicial system of the country
derives largely from the British system and has few, if any, connections to Indian legal institutions of the
pre-British era.250 India has a recorded legal history starting from the Vedic ages and some sort of civil
law system may have been in place during the Bronze Age and the Indus Valley civilization. Law as a
matter of religious prescriptions and philosophical discourse has an illustrious history in India. Emanating
from the Vedas, the Upanishads and other religious texts, it was a fertile field enriched by practitioners
from different Hindu philosophical schools and later by Jains and Buddhists. 251 From an artifice of the
colonial masters, the Indian legal system has evolved as an essential ingredient of the world’s largest
democracy and a crucial front in the battle to secure constitutional rights for every citizen.252
Media and law both plays very significant role in our society in the present scenario. It is all around us.
The shows we watch on television, the music we listen to on the radio, to the books and magazines we
read each day. Television, more than any of the other Medias, achieves innumerable different goals. In
this day and age, life without technology feels utterly impossible and life without the media is simply
244
The Common Law And Civil Law Traditions,
https://www.law.berkeley.edu/library/robbins/pdf/CommonLawCivilLawTraditions.pdf, accessed on 12th January 2018.
245
Glenn, H. Patrick (2000). Legal Traditions of the World. Oxford University Press. ISBN 0-19-876575-4., pg no 255
246
Glenn, H. Patrick (2000). Legal Traditions of the World. Oxford University Press. ISBN 0-19-876575-4. Pg no 276
247
Alexander, C.H. (July 1952). "International Law in India". The International and Comparative Law Quarterly 1 (3): 289–
300. ISSN 0020-5893
248
Viswanatha, S.T., International Law in Ancient India, 1925
249
Glenn, H. Patrick (2000). Legal Traditions of the World. Oxford University Press. ISBN 0-19-876575-4. Pg no 273
250
Jain, M.P. (2006). Outlines of Indian Legal and Constitutional History (6th ed.). Nagpur: Wadhwa & Co. ISBN 978-81-
8038-264-2., pg no 2
251
Brief history of law in India, The Bar Council of India, available at http://www.barcouncilofindia.org/about/about-the-
legal-profession/legal-education-in-the-united-kingdom/, accessed on 13th January 2018
252
Brief history of law in india, available at http://www.barcouncilofindia.org/about/about-the-legal-profession/legal-
education-in-the-united-kingdom/, accessed on 14th January 2018
80
unimaginable.253 The media is vital in the role it plays in uncovering the truth and rousing public opinion,
especially in the face of wrongdoing and corruption. Numerous examples exist where the media has played
a central role in revealing corrupt practices and shaping the demand for accountability and good
governance.
The negative influences of media that are a result of an overexposure to it are most often talked about. It
is true to a certain extent that media has affected the society in a negative manner. But, undoubtedly, media
has proved being bliss.254
The role law plays in society is to guarantee the rights of those who are weaker either physically or socially
in any given social structure. Laws were enacted by elected representatives of the social group to protect
the rights of life and substance from those in a society who would use their prestige, wealth and
manipulation of arms to restrict the rights of others. 255 Law is important for society; it serves as norm of
conduct of citizen. It also provides the proper guideline for society. It is important because it keeps the
society running. Without law there will be chaos in society. 256 “The relationship between the media and
courts of law would continue to play mutually supportive roles in upholding the freedom of speech and
expression. The judiciary’s commitment to bring “justice” closer to each citizen could not be achieved
without cooperation and synergy with media. It is through media that the citizens were reassured that the
various arms of the State were performing their roles as per their constitutional obligations. It is also the
media that often helps in conveying the expectations of the citizen”, the former Chief Justice of India K
G Balkrishnan.
Impact of the Fourth Estate on the Legal System
The freedom of speech and expression has been characterized as “the life of civil liberty” in the
Constituent Assembly Debates.257 The freedom of the press, while not recognized as a separate freedom
under Fundamental Rights, is folded into the freedom of speech and expression. 258 The Supreme Court
253
The influence of the media, interactive schooling, available at http://www.skwirk.com/p-c_s-58_u-496_t-1352_c-
5201/the-influence-of-the-media/qld/the-influence-of-the-media/law-and-the-media-civics-and-citizenship/people-and-the-
law accessed on 16th January, 2018.
254
Oak, Manali, Positive Effects of the Media, buzzel, available at http://www.buzzle.com/articles/positive-effects-
of-the-media.html accessed on 17th January, 2018.
255
What Role Does Law Play In Society?, Daily Legal whirl, available at, http://www.dailywhirl.com/what-role-does-law-
play-in-society/, accessed on 18th January, 2018.
256
Albert D’Souja, Anil, Importance of law to the society, Mangalorean.com, available at
http://www.mangalorean.com/browsearticles.php?arttype=Feature&articleid=2091, accessed on 18th January, 2018.
257
Constituent Assembly Debates: Official Report, (Delhi, 1946-1950), VII, p. 18.
258
BrijBhushan and Another vs. The State of Delhi, AIR 1950 SC 129; Sakal Papers (P) Ltd vs. Union of India, AIR 1962
SC 305.
81
has described this freedom as the “ark of the covenant of democracy”.259 The freedom of the press serves
the larger purpose of the right of the people to be informed of a broad gamut of facts, perspective and
opinions. It is the medium through which people gain access to new information and ideas. Thus, “the
survival and flowering of Indian democracy owes a great deal to the freedom and vigour of our press. 260”
The media plays vital role in uncovering the truth and rousing public opinion, especially in the face of
wrongdoing and corruption. Numerous examples exist where the media has played a central role in
revealing corrupt practices and shaping the demand for accountability and good governance.
The importance of media in a democracy becomes particularly evident when it comes to challenges
surrounding media and the elections. The Law Commission, while considering issues related to electoral
reforms, such as the phenomenon of paid news and opinion polls. However issues relating to the media
are not solely limited to elections. Thus this Consultation Paper puts forward several wide-ranging issues
relating to the media generally to elicit responses thereon. Social Media has a reputation of being biased
and convicting people to be either guilty or innocent before they are even tried. Innocent until proven
guilty seems unrealistic when social media is involved. This therefore influences the public to believe in
it. Traditional media has had the power to do this as well but not at the size or rate that social media can.
As of now the legal community is struggling to update the traditional way of law with the ever changing
ways of social media. In fact, more people log onto Facebook than Google. Real time information updated
on social media sites is quickly becoming a trusted source for up-to-the-minute news. It therefore comes
as no shock that social media is having a profound impact on the law as well. As more people turn to
social media for online interaction, websites like Facebook and Twitter are increasingly affecting the legal,
ethical, and marketing aspects of the law. One of the first lawsuits to be filed over social media activity
involved singer Courtney Love, who was sued by her former designer for defamation concerning alleged
libelous statements posted by Love on her Twitter account. Love’s tweets were allegedly “published” to
her 40,000 Twitter followers, and set the stage for the world’s first well-known social media suit.
In addition to creating new avenues for legal liability, social media content also has significant evidentiary
value in the courtroom. Most recently, prosecutors in the now famous Casey Anthony litigation offered a
potential juror’s Facebook post as grounds for a preemptory challenge. Prosecutors were able to establish
a juror’s bias against police officers by referencing the juror’s Facebook post following a prior car accident
exclaiming “cops in Florida are idiots.” This colloquy provides only one example of how attorneys are
finding a treasure trove of discoverable information on social media sites to establish their cases. 261
259
Bennett Coleman & Co. v Union Of India, AIR 1973 SC 106.
260
Amartya Sen, “The glory and the blemishes of the Indian news media”, The Hindu, 18th January, 2018.
261
The Effect of Social Media on the Law, lawyerist, available at http://lawyerist.com/31245/effect-social-media-law/
accessed on 18th January, 2018.
82
In Jessica Lal murder case:262 On 29 April 1999, Jessica Lal was one of several models working at an
unlicensed bar at a party in the Tamarind Court restaurant, which was within the Qutub Colonnade, a
refurbished palace overlooking the Qutub Minar in Mehrauli. By midnight the bar had run out of liquor
and it would in any event have ceased sales at 12.30 am. After midnight, Manu Sharma walked in with
his friends and demanded to be served liquor. Lal refused to serve Manu Sharma, who was with a group
of three friends. He was ready to offer Jessica 1000 Rupees for it. Sharma then produced a 0.22 calibre
pistol and fired it twice: the first bullet hit the ceiling which was to serve as a warning to Jessica not to
refuse liquor, but when Jessica refused again, Sharma fired again and the second hit Jessica in the head
and killed her.
A mêlee followed the shooting, during which Sharma and his friends named Amardeep Singh Gill, Vikas
Yadav, and Alok Khanna left the scene.263 Thereafter, it was reported that contact could not be made with
Sharma's family, including his mother, and that they were "absconding". After eluding police for a few
days, with the assistance of accomplices, Khanna and Gill were arrested on 4 May and Sharma on 6 May.
The murder weapon was not recovered and was thought to have been passed on to a friend who had been
visiting from the US and who may subsequently have returned there. The case by now involved several
prominent people.
Charge sheets were filed with the court on 3 August 1999. Sharma was charged with murder, destruction
of evidence and other offences, while Khanna, Gill and Yadav faced lesser charges, including destruction
of evidence, conspiracy and harbouring a suspect. The trial took place but due to absence of witness and
proofs, Sharma was acquitted. On 9 September 2006, a sting operation by the news magazine Tehelka was
shown on the TV channel STAR News. This appeared to show that witnesses had been bribed and coerced
into retracting their initial testimony. Venod Sharma was named in the exposé as one who had paid money
to some of the witnesses. The immense public support and the growing pressure from media led the Delhi
High Court to take notice and the case was reopened after an appeal by the Delhi Police. Manu Sharma
was finally pronounced guilty of killing Jessica Lal and he was given life sentence on 20th December,
2006. The efforts of the media helped the case to be reopened and justice was finally delivered.
In Priyadarshini Mattoo Case:264 Priyadarshini Mattoo was a 25 year old law student, who was found
raped and murdered at her house in New Delhi on 23 January, 1996. She had lodged several complaints
of harassment, intimidation and stalking against the accused Santosh Kumar Singh who was also a student
of LL.B. in campus Law Centre, Faculty of Law, University of Delhi. The accused had passed LL.B. from
University of Delhi from the said Campus Law Centre in December, 1994. Repetitive complaints made
262
Sidhartha Vashisht @ Manu Sharma Vs. State (NCT of Delhi), SC/0268/2010.
263
Murder of a Model, India Today
264
State (through CBI) Vs.Santosh Kumar Singh, DE/3177/2006
83
by the deceased turned out to be completely futile in as much as it failed to deter the accused who
continued to harass her. Despite the earlier two undertakings given by the accused subsequent to the
complaints registered against him by the deceased at the R.K. Puram and Vasant Kunj Police Station on
25 February,1995 and 16 August.,1995 respectively, on 06 November.,1995, he again tried to harass the
deceased at the Campus Law Centre. After this an FIR under section 354 of Indian Penal Code (IPC),
1860 was lodged against him at the Maurice Nagar Police Station for which he was arrested and
subsequently released on personal bond. The deceased had also filed a complaint dated 27 October, 1995
to the Dean, Faculty of Law, and Campus Law Centre stating harassment. The accused was advised to
desist from such activities. On the fateful day of the murder when the deceased was alone at her residence
at B-10/7098, Vasant Kunj the accused came at her house. On the arrival of the security guard Rajinder
Singh at the deceased’s residence it was found that Priyadarshini Mattoo was lying under the double bed
and there was no movement of her body. Thus an FIR under Section 302 of Indian Penal Code (IPC) was
lodged at his instance at the Vasant Kunj Police Station. In the statement recorded under Section 161 of
Cr.P.C. Rajeshwari Mattoo, the mother of the deceased had suspected the accused and therefore he was
joined in the investigation.
After a thorough investigation made by CBI into the matter, on 11 April, 1996, the Central Agency filed
charge sheet against Santosh Kumar Singh. The accused was challaned in accordance with law. On 3
January, 1998 in all; as many as fifty witnesses were examined in the court. After taking into account all
the circumstantial and documentary evidence produced by the prosecution, the trial court on 3 December,
1999 acquitted the accused giving him a benefit of doubt stating that the CBI had failed to correctly
produce the evidence and had acted in an unfair manner.
On 17 October, 2006 the High Court overturned the trial court verdict of seven years ago and Justice R.S.
Sodhi and P.K. Bhasin patted CBI, the same agency that had lost its case in the lower court, for proving
Santosh Kumar Singh’s guilt “beyond any doubt by unimpeachable evidence.”On 30 October, 2006 the
Delhi High Court convicted the accused for the commission of offences punishable under Sections 302
and 376 of Indian Penal Code and sentenced him to death.
On 19 February, 2007 the accused Santosh Kumar Singh preferred an appeal in the Supreme Court against
the award of death sentence by the Delhi High Court. On 6 October, 2010 the Bench comprising Justices
H.S. Bedi and C.K. Prasad upheld the conviction of Santosh Kumar Singh in the fourteen year old
Priyadarshini Mattoo rape and murder case. It, however, reduced the punishment of death sentence to life
imprisonment saying that certain things were in favour of the appellant. The Bench opined that, “the
balance sheet was in favour of Santosh Kumar Singh and the ends of justice would be met if Santosh
Kumar Singh’s death penalty is commuted to life imprisonment.” Media interference helped in the speedy
trial of this case.
84
The role of the media as an “institutional limb of modern democracy” was yet again amply demonstrated
during the recent phase of the Jan Lokpal movement that was unprecedented in many ways. Media has
also played a very prominent role in exposing scams in last ten years. Some of these include the scam in
2 G spectrum scam, bofors scam, CWG scam, Antrix-devas deal and the list is long.
Judicial Decision Mark Over Media Law
In India today, we have every reason to celebrate our news media. However, as society evolves, new
challenges are constantly thrown up that require consideration. Technology has expanded in our society,
but it also brought with it new concerns. Recent events related to the news media, such as the proliferation
and subsequent curbing of social media, the paid news phenomenon, fake sting operations, trial by media,
breach of privacy, etc. pose a set of anxieties. As Lord Justice Leveson wrote in his path-breaking report
on ‘Culture, Practice and Ethics of the Press’ in Great Britain,
“With these rights (of press freedoms) come responsibilities to the public interest: to respect the truth, to
obey the law and to uphold the rights and liberties of individuals.”265
One of the main issues with regard to media regulation has been the question of the nature of regulatory
authorities. This has led to proposals for a Broadcasting Regulatory Authority of India. In 2007, a
Consultation Paper by the Ministry of Information and Broadcasting sought views from stakeholders on
the proposed draft of the Broadcasting Services Regulation Bill. The PCI, in 2012 also recommended that
electronic and social media be brought within its regulatory framework and the institution renamed Media
Council. With the advancement of Internet technology, the Information Technology Act, 2000 was
introduced as the first Act to govern cyber law provisions. Section 66A was inserted in the Act by an
amendment in 2008 under which sending offensive or false messages through a computer device is a
punishable offence. Section 66A is currently under challenge 266 as being violative of free speech as it has
often been said to have been invoked arbitrarily or with political motive to block access to content
allegedly objectionable.
Supreme Court in Secretary, Ministry of Information and Broadcasting v. Cricket Association of
Bengal.267 Thereafter, the Ministry of Information & Broadcasting has made various attempts, the latest
265
Lord Justice Leveson, ‘An Inquiry into the Culture, Practices and Ethics of the Press’ (Leveson Inquiry Report, London:
November 2012).
266
Shreya Singhal v. Union of India, W/P (Civil) No. 167 of 2012 (pending before the Supreme Court).
267
Supreme Court in Secretary, Ministry of Information and Broadcasting v. Cricket Association of Bengal AIR1995 SC
1236
85
in 2007, to draft a Broadcasting Services Regulation Bill in order to set up a Broadcasting Regulatory
Authority of India (BRAI).
In Indraprastha People v. Union of India268, the Delhi High Court recommended that an independent
statutory body be set up under the Cable Television Networks (Regulation) Act, “security of tenure of a
kind should be provided for the Members of the Board so that they are free from Government
interference.” Till this comes into force, the BCCC, according to the Court should be recognized by the
Government of India as competent to decide complaints on violation of the law by broadcasters. Its
decisions shall be treated by the Union of India as the foundation to take appropriate action against the
offender.
The illegal practice has become organized, with ‘rates’ for the publication of ‘news items’. 269 Further, the
Parliamentary Standing Committee on Information Technology, in 2013, has brought out its forty-seventh
report on the phenomenon of paid news, where it has highlighted the ‘dangerous trend’ of presenting paid-
for information as news, that has spread at ‘remarkable pace’ in some parts of the media.270 The Report
also outlined the practice of ‘Private Treaties’, where a non-media company transfers shares to a media
company in exchange for advertisements, space and favorable coverage.
The right to privacy is recognized as a fundamental right under the Constitution of India. It is guaranteed
under the right to freedom (Article 19) and the right to life (Article 21) of the Constitution. Article 19(1)
(a) guarantees all citizens the right to freedom of speech and expression. It is the right to freedom of speech
and expression that gives the media the right to publish any information. Reasonable restrictions on the
exercise of the right can be imposed by the State in the interests of sovereignty and integrity of the State,
the security of the State, friendly relations with foreign States, public order, decency or morality, or in
relation to contempt of court, defamation or incitement to an offence. Article 21 of the Constitution
provides, "No person shall be deprived of his life or personal liberty except according to procedure
established by law." Courts have interpreted the right to privacy as implicit in the right to life. In
R.Rajagopal v. State of T.N. and PUCL v. UOI, the courts observed that the right to privacy is an essential
ingredient of the right to life.
In R. Rajagopal v State of Tamil Nadu271, Auto Shankar — who was sentenced to death for committing
six murders — in his autobiography divulged his relations with a few police officials. The hon’ble
Supreme Court in dealing with the question on the right to privacy, observed, that the right to privacy is
implicit in the right to life and liberty guaranteed to the citizens of the country by Article 21. It is a ‘right
268
Indraprastha People v. Union of India, WP (C) No.1200/2011, (Del. HC)
269
Council of India, Sub-committee Report on Paid News,available at http://presscouncil.nic.in/OldWebsite/Sub-
CommitteeReport.pdf accessed on 18th January, 2018.
270
Standing Committee on Information Technology, 15th Lok Sabha, 47th Report on ‘Issues related to paid news’
271
R. Rajagopal v State of Tamil Nadu, SC/0056/1995.
86
to be left alone.’ "A citizen has a right to safeguard the privacy of his own, his family, marriage,
procreation, motherhood, child-bearing and education among other matters.”
The publication of any of the aforesaid personal information without the consent of the person, whether
accurate or wrong and ‘whether laudatory or critical’ would be in violation of the right to privacy of the
person and liable for damages. The exception being, when a person voluntarily invites controversy or such
publication is based on public records, then there is no violation of privacy.272
In PUCL v. UOI273, which is popularly known as the wire-tapping case, the issue before the court was
whether wire-tapping was an infringement of a citizen’s right to privacy. The court held that an
infringement on the right to privacy would depend on the facts and circumstances of a case. It observed
that, "telephone conversation is an important aspect of a man's private life. Right to privacy would
certainly include telephone-conversation in the privacy of one's home or office. Telephone-tapping would,
thus, infract Article 21 of the Constitution of India unless it is permitted under the procedure established
by law." It further observed that the right to privacy also derives from Article 19 for "when a person is
talking on telephone, he is exercising his right to freedom of speech and expression."
In State of Uttar Pradesh v Raj Narain,274 the Supreme Court of India held that Article 19(1) (a), in
addition, to guaranteeing freedom of speech and expression, guarantees the right to receive information
on matters concerning public interest. However, more recently concerns over balancing the right to
information with the right to privacy have been raised, especially, by controversies like the Radia-tapes.
For instance, last year Ratan Tata filed a writ petition before the Supreme Court of India alleging that the
unauthorised publication of his private conversations with Nira Radia was in violation of his right to
privacy. The writ, filed by the industrialist, did not challenge the action of the Directorate-General of
Income Tax to record the private conversations for the purpose of investigations. Instead, it was
challenging the publication of the private conversations that took place between the industrialist and Nira
Radia by the media. Whether the publication of those private conversations was in the interest of the public
has been widely debated. What the Tata episode brought into focus was the need for a law protecting the
right to privacy in India.
In Kharak Singh v. State of U.P275, where police surveillance was being challenged on account of
violation of the right to privacy, the Supreme Court held that domiciliary night visits were violative of
Article 21 of the Constitution and the personal liberty of an individual.
272
Privacy & Media Law,CIS, available at http://cis-india.org/internet-governance/front-page/blog/privacy/privacy-media-
law,accessed on 19th January, 2018.
273
PUCL v. UOI, AIR 1997 SC 568.
274
1975 AIR 865, 1975 SCR (3) 333.
275
Kharak Singh v. State of U.P, AIR 1997 SC 568.
87
There are some provision made for media, like FIRST PRESS REGULATIONS, 1799, GAGGING ACT,
1857, VERNACULAR PRESS ACT, 1878, INDIAN PRESS ACT, 1910, OFFICIAL SECRETS ACT,
1923, CONTEMPT OF COURT ACT, COPYRIGHT ACT, 1957,etc. So according to this law effects or
controls and regulate media.
Internationally the right to privacy has been protected in a number of conventions. For instance, the
Universal Declaration of Human Rights, 1948 (UDHR) under Article 12 provides that:
"No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, or
to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such
interference or attacks."
The UDHR protects any arbitrary interference from the State to a person’s right to privacy. Similarly,
International Covenant on Civil and Political Rights, 1976 (ICCPR) under Article 17 imposes the State to
ensure that individuals are protected by law against “arbitrary or unlawful interference with his privacy,
family, home or correspondence, nor to unlawful attacks on his honour and reputation.276
CONCLUSION
The researcher would like to conclude that the media plays very important role in our society. The impact
of media on the society extends to both social and political sectors. There are a variety of elements in each
and media touches on both sectors and each element. It should be noted that the extent that it affects each
element varies as well. It should also be taken into account that while there is a mass effect on everyone
that media touches, the extent it affects the individual varies as well. On a social level, media has its
greatest impact. Viewpoints have been shaped due to the representation of different cultures, races,
genders, religions, and sexual orientations. The two main elements of this are entertainment and news.
While the representations should be taken at face value when it comes to entertainment, some
representations have led to unfair stereotyping which becomes a part of social norms and thinking for
generations.
Almost every day of our lives we are exposed to the media in at least one form or another. Because most
of the public has little direct experience with the justice system, public knowledge and views of law and
the legal system are largely dependent on media representations. The media provide many lessons about
law and justice. Television news and police and crime dramas account for a substantial amount of
276
International Covenant on Civil and Political Rights, Part III Art. 17. Available at:
http://www2.ohchr.org/english/law/ccpr.htm, accessed on 19th January, 2018.
88
incidental learning about the nature of the legal system. Newspapers and films also contribute to the
public's knowledge and attitudes about law and the legal system.
This contribution reviews and analyzes the impact of this coverage of law on the public.
Our analysis of the content and style of media coverage of legal issues leads to the conclusion that the
media mirror presents a distorted view of law. Social media is impacting many areas of the law from
discovery and service of documents to playing an increasing role in family law, workplace relations and
defamation cases. In this age of media explosion, one cannot simply remain confined to the boundaries of
the traditional media. The media world has expanded its dimensions by encompassing within its orbit, the
widening vistas of cyber media etc. As a consequence, the laws governing them are also numerous. It is
not within the scope of this Paper to deal with the whole subject, but this Paper makes a person aware of
the various important legislations affecting the various branches of Media Communication, making him
aware of his rights and facilitating him to exercise them within the framework of law existing in India and
in the end furthering the cause of “Freedom Of Speech And Expression” and “Dissemination of
Knowledge”.
89
UNLOCKING NEW DIMENSIONS IN INDIRECT TAXATION REGIME

YASH JAIN277
INTRODUCTION
Goods and Service Tax’s changed regime emerged as a silver lining to the dark cloud of increased prices
in an economy, slowing growth rate, cascading effects of taxation and what not. Thus panacea to all banes
as appeared initially was to implement the concept of one nation, one market; one tax in order to achieve
the objectives of the boosting economy didn’t spread the bright light as contended.
Long years ago we made a tryst with destiny, the destiny of economy, destiny of financial stability and
destiny of tax revenue. At the stroke of the midnight hour, when the world sleeps, India awaked to new
financial freedom, with Coming of transformed yet challenging regime and with a spark to the time that
has come when we should try to redeem our pledge, not wholly or in full measure, but very substantially.,
whose success is now largely on the each shoulder that it shares load unto.
Business Policies had to be reframed, processes had to be reinstituted and new personnel with technical
backgrounds were recruited, keeping in mind the challenging changing regime and had to be given a new
direction following the issues turning from beneath. Also, a larger blockage of funds, non procedural
compliances and setting up of new mechanisms had to be undertaken too to implement the challenging
changing regime of the taxation tutelage of the indirect taxation apart from advantages to its citizen 278,
government279 and industry280.
CONSTITUTIONAL IMPERITIVE AND CONSTITUTIONALITY OF THE GOODS AND

SERVICE TAX
The Constitutional Amendment281 for change in taxation powers of Centre and State didn’t saw the light
of day effortlessly but went through series of political overhaul, manipulations to numbers in and off
parliament and working of over fifteen committees and five empowered committee to bring about the
face, as we see it today. 282 283 284 285
Intergovernmental financial Relationship in a federation is vital, or one may say, even a critical matter. It
touches the heart of very modern federalism, as the way in which relationship functions, affects the whole
continue and working of the federal polity. It is however an arduous exercise to create a viable scheme of
277
Yash Jain is 4th year student of law and management, BBA LLB(H) at Vivekananda Law School, VIPS and Student pursing
company secretary course at Professional Level at ICSI. Apart from being in top percentile in academics is a winner at various
national competitions in debating, negotiations and presentations and has four papers published with around dozen of
conference papers. His work experiences include working in corporate houses, corporate law firms and industry participants.
Also, holds certificates and letter of recommendations showcasing his corporate, tax and management law spirit .Is an active
member of organisation committees at community and college level and believes in giving back to community thorough his
services in Delhi State Legal Services Authority and Teach India Initiative.
278
CBEC Document on advantages of GST to Citizen retrieved from http://www.cbec.gov.in/htdocs-cbec/gst/citizens.pdf
279
CBEC Document on advantages of GST to government retrieved http://www.cbec.gov.in/htdocs-cbec/gst/central.pdf
280
CBEC Document on advantages of GST to industry retrieved http://www.cbec.gov.in/htdocs-cbec/gst/trade.pdf
281
The Constitution of India (One hundred and one) Amendment act, 2017 (India)
282
Datey , V.S., Elements of Indirect Taxes, Taxmann, 5th Edition., 2014 p 67
283
115th constitutional amendment bill, 2011 retrieved from http://www.cbec.gov.in/htdocs-cbec/gst/consti-amend-bill-
115-2011-new.pdf
284
Standing Committee Report on 115th Constitution Amendment Bill (2013 retrieved from
http://www.cbec.gov.in/htdocs-cbec/gst/sc-rpt-consti-amend-bill-115-2013-new.pdf
285
122nd Constitution Amendment Bill, 2014 Report of Select Committee of Rajya Sabha on 122nd Constitution
Amendment Bill (2015) retrieved from http://www.cbec.gov.in/htdocs-cbec/gst/consti-amend-bill-122-2014-new.pdf
90
intergovernmental financial relationship in a federal polity as federalism has its own special and peculiar
issues of which Finance is essential pre requisite of good governance. 286 Also the collection, levy287 and
imposition on a simpler set of defined principle would lead to a situation of smooth fiscal economy but
state’s autonomy.288 289 290
LOSS OF REVENUE TO STATES AND TAXATION POWER COMPROMISE IN THE LONG

RUN
The question remains fundamental to be answered whether the government in long run would be able to
compensate the states with just one act of state compensation considering the power of taxation of the
states, that existed in imposition of the taxation. The government effort to bring about change cannot to
said to be boon all evils as it has indirectly curbed the taxing powers of the state to a certain extent. Because
of amendment in the Entry 84, the alcohol for human consumption is kept outside the preview of the
imposition of tax and thus, petroleum crude; high speed diesel; motor spirit (commonly known as petrol),
natural gas, aviation turbine fuel; and tobacco and tobacco products which were large sources of revenue
for the state, have lost their revenue to shared of which as opposed to Initially, the states which could
impose cess to fund their local operations and collect revenue for their activities for which, now they have
to ask other states and get at least two third of them in favour to impose tax in its own state which was
essentially his matter of local governance and now of political manipulations and servitude.
In the view of the above contentions, government though enacted compensation291 hasn’t saw the light of
implementation to date in real sense, and the extension of period of compensation to five year, may be in
future be imperative to political hands using the tool of compensation extension to attract traders and local
people for votes. Thus, though the states have gained a lot in this challenging changing regime but have
lost their autonomy to extent of local imposition of taxes in this challenging changing regime.
Further, entry of goods292 into a local area for consumption, use or sale therein that is Octroi or Entry Tax,
or Taxes293 on advertisements other than advertisements published in the newspapers and advertisements
broadcast by radio or television have been omitted, omitting the powers of the taxation with state of local
governance of revenue. Thus whether the states would be able to make up with the compensation 294 so
provided remains a question under cloud as observed in the case of Madhu295
ISSUE OF HURRIED IMPLIMENTATION

Postponement of dates of filling, defer in notifications to bring changes and non notifications of the certain
issues of central importance was one of the most important consideration before the government. essential
rules are yet to be been framed such as e-way and anti-profiteering and notified along with major
provisions like that of TDS and TCS. Also, working of goods and service tax Seva Kendra was in question
who was meant to answer all questions. The Similar question arose before Bombay High Court in the case
286
J., M.P in Indian Constitutional Law, Lexis Nexis, 7th Edition p. 597
287
Coimbatore Corporation Contractors Welfare Association Versus State of Tamil Nadu, The Commissioner of Municipal
Administration, The Commissioner, Coimbatore Corporation, The Chief Accounts Officer, Coimbatore Corporation, The
Cheif Engineer, Coimbatore Corporation, The Commissioner, GOODS AND SERVICE TAX Policy Section, The Commissioner of
Commercial Taxes 2017 (10) TMI 783 - MADRAS HIGH COURT
288
M. Anandaday. GOODS AND SERVICE TAX law and Procedure, Taxmann, 1st Edition p 298
289
Sodhani Vineet, Indirect Tax Laws, Taxmann, 2014 p 475
290
Singhania , Dr. Monica & Singhania , Dr Vinod, Students guide to Indirect Tax Laws, Taxmann, 2014 p 874
291
GOODS AND SERVICE TAX (Compensation Cess) Act, 2017 (India)
292
Schedule 7 Entry 52 of The Constitution of India
293
Schedule 7 Entry 55 of The Constitution of India
294
(AIR 1995 SC 1540: (1995) 4 SCC 309) (India)
295
The Commercial Tax Officer and The Intelligence Inspector Versus Madhu. M.B (2017 (9) TMI 1044) (W. A. No.1802 of
2017) (India)
91
of Dr. Kanagasabapathy 296, where it was observed dismissing the petition of the petitioner seeking the
direction to government to direct the respondent to defer the functioning till the legal sanction for
implementation is taken from the parliament. Thus, it remains under a hue that whether the government
was justifiable to bring such a massive change in the indirect taxation in this challenging changing regime.
ISSUES OF LEVY AND COLLECTION OF TAXES

The Collection and Levy of taxes has changed from the origin based principle to destination based
principle and also the scope and applicability of the provisions as to what is to constituted as a taxable
event has changed from “EXPORT” to “IMPORT”. Such Issues has been raised in the cases of Mohit
Minerals297 But, the thing that hasn’t changed in times is the hustle and bustle that surrounds the filling
and claiming of the eligible Input Tax Credit. Though the government has introduced the system of e-
wallets to be taken effect298, has to be notified which hasn’t seen the light of day as yet.
Further, Act provides that supply includes import of services 299, for a consideration whether or not in the
course or furtherance of business, and for a consideration which is made or to be paid or even without
consideration. Further, Import of services by a taxable person300 from a related person or from any of his
other establishments outside, in the route of business should be treated as supply even if made without
consideration. The major issue that turns out here is that Import of services is anyway covered 301 and
establishments outside India is a distinct person which will apply to import of services also. Dual coverage
of import of services might lead to interpretational issues. Also, it is not humanly possible to tap and track
the services of / supply of services given by the persons without considerations off the record.
Further as in Section 7302, in the event a good is put to personal use or other than the business use, say, a
car is owned by a taxable person in the name of a company and the same is being used by him occasionally
for his personal use then such personal use would be considered as supply of service and would be subject
to goods and service tax. in the given scenario, how should the taxable person determine the value of such
services (personal use) for the purpose of liveability of goods and service tax or be not liable otherwise it
would lead to a issue of double taxation, defeating again the purpose of the act. Also for Sale of land 303
and, sale of building would be treated as an activity or transactions which should be treated neither as a
supply of goods nor is a supply of services vague and unclear. The definition of sale itself makes the things
in a round loop. In this, Sale does not include transfer of land by way of will, inheritance, testament etc.
Such transactions if kept out of the purview may create issues and confusion among the various laws and
implementation aspects, giving a scope of arbitrage. Similarly Act provides for exemption to related party
transactions304 for up to a amount of fifty thousand rupees which in industry practise is very less and
posing a image of just pretending to give relief but not the actual one, thus among Goods and Service Tax
the road block in the changing challenging era.
TRANSITIONAL ISSUES OF THE PREVIOUS LAW VIS – A - VIS INPUT TAX CREDIT
MECHANISM
296
Dr. Kanagasabapathy Sundaram Pillai Founder, NGGO Versus Union Govt. of India, Through, The Chairman, CBEC (2017
(9) TMI 389 (India)
297
Mohit Minerals Pvt. Ltd. Versus Union of India & Another 2017 (8) TMI 1194
298
Press Note released by CBEC can be retrieved from http://www.cbec.gov.in/htdocs-
cbec/gst/20171006_PressRelease_22ndGSTCMeeting.pdf
299
Section 7(1)(b) of CGOODS AND SERVICE TAX
300
Schedule I Point 4 of the Central goods and service tax Act
301
Section 7(1)(b) of Central Goods and Service Tax Act
302
as per the provision of entry 4(b) of Schedule II of CGOODS AND SERVICE TAX Act, 2017
303
Clause 5 of Schedule III of CGOODS AND SERVICE TAX Act, 2017 as specified in Section 7 read along with subject to clause
(b) of paragraph 5 of Schedule II
304
Section 7 (1) (c) of CGOODS AND SERVICE TAX
92
Elaborate provisions have been made to carry forward the ITC earned under the existing law. Such credit
should be permissible under the goods and service tax law. However, the taxable person opting for
composition scheme would not be eligible for carry forward of the existing ITC. ITC of various taxes
under the existing laws (CENVAT credit, VAT etc.) would be carried forward as under such as
determination of the Closing balance of the credit in the last returns, Un-availed credit on capital goods,
Credit on duty paid stock, Credit on duty paid stock when Registered Person does not possess the
document evidencing payment of excise duty/VAT, Credit relating to exempted goods under the existing
law which are now taxable, Input/input services in transit, Tax paid under the existing law under
composition scheme, ITC in case of Centralised Registration under service tax, Reclaim the reversed Input
Service credit, Where any goods or capital goods belonging to the principal are lying at the premises of
the agent on the appointed day or about the Proceedings under the existing laws.
Further with rule making power of 164, insertion of Rule 44 A on the Central goods and service tax Rules
and has sought to deny the credit already accrued there can be challenge to Rule 44 A as being ultra vires
Section 140 of the Central goods and service act as well as the rule making powers under Section 164
thereof. Also Thus, it appears under goods and service tax regime that, out that if the interim orders are
not granted then the credit of CVD already availed and utilized for payment of tax on complete goods by
the Petitioners would be electronically reversed and they would have to deposit cash. This would be
severely prejudicial to them and thus had also granted them the interim relief setting a precedent for further
cases in challenging changing regime.305
ISSUES RELATED TO EXEMPT SUPPLY

As per the current definition “exempt supply” 306 means supply of any goods or services or both which
attracts NIL rate of tax or which may be wholly exempt from tax under section 11, or under section 6 of
the Integrated Goods and Services Tax Act, and includes non-taxable supply. It is evident here to note that
enclosure of non-taxable supplies in aggregate turnover results in an effectively lower limit for
composition levy as well as for threshold exemption. Further, when a supply is non-taxable, it should not
affect the taxability indirectly by affecting the threshold exemption and composition scheme defeating the
whole purpose of the Section 10.
Similarly, the levy and collection the taxes would be made on the aggregate turnover of the assesses of
the same PAN Card. The term “exports of goods or services or both” cover all the exports which may be
taxable as well as non-taxable.307 Thus, If ‘exempt supplies’ are included in the aforesaid threshold of
rupees twenty lakh that would mean that if a dealer is involved in exclusive supply of exempt
goods/services and if he happens to make a small supply of taxable goods/services, then he will become
liable for registration. As such the turnover limit of Rupees Twenty lakh is too low a limit and if the
exempt supplies are also included therein than a very large number of people will become liable for
registration without any substantial revenue to the Government.
ISSUES RELATED TO REGISTRATION
In modern taxation system, it can be argued that registration one of most important prerequisite for
identification of tax payers ensuring tax compliance in the economy. Registration of any business entity
under the goods and service tax law implies obtaining a unique number from the concerned tax authorities
for the purpose of collecting tax on behalf of the government and to avail input tax credit for the taxes on
305
Salasar Synthetics, M.D. Overseas Ltd. Versus Union of India & Another (2017 (9) TMI 388
306
Section 2(47) of Central Goods and Service Tax Act, 2017
307
Section 2 (108) of Central Goods and Service Tax Act, 2017 read with Section 2(5) and Section 2(6) of The Integrated
Goods and Service Tax Act, 2017
93
his inward supplies. 308 Without registration, a person can neither collect tax from his customers nor claim
any input tax credit of tax paid by him. the registration in goods and service taxis pan based and state
specific.309
Issues pertaining to goods and service tax id and password, registration and provisional registration,
corrections and punitive actions for non compliance have become a common thing. also return ad deposit
there is also a grave question. similar issues were also faced in the registration through provisional
registration ID and its registration through the goods and service tax Network portal, non integration of
the PAN and AADHAAR with the documents and issues like multiple registration in multiple states as
expected appose to single registration throughout India creating a loop hoop on confusions in the economy
with challenging changing regime.310
ISSUES RELATED TO RETURN FILING

With advent of the goods and service tax regime, the major decision that was needed to be taken was
regarding the returns. First goods and service tax return GSTR 3B, was to be filled monthly and was
complete Odeon’s stable. GSTN website being pokerfaced or simply not responding was regular feature.
Continuous and Multiple emails backed by calls to visiting to help desks were turning out to be futile was
this the level of preparation expected of GSTN, and the invoice wise filing has not even started. Last
moment notification311 on TRANS-1 had left everybody confused. This combined with multiple issues on
taxability is only creating a nightmare for everyone.
Critics also claim that GSTN was behaving like a parachute. You will only know it works when you jump.
If it does, you are lucky. The question still begs consideration. Why cannot the date be extended for
everyone? When 3B and regular returns are so close what was the purpose of FORM 3B. Is anyone
thinking and planning. Does anyone understand the stress which companies are going through? It cannot
be denied that there was a need to implement goods and service tax as soon as possible but it cannot be
denied either that it turned out to be complete fruitless to its own laid purposes.
This is in addition to the fact that there are multiple interpretation issues involved for which there is no
clear answer. There also seems to be a disconnection between what the law indicates and what the GST
Network system takes. For example can TRANS 1 be revised or not is unclear. The tab post filing gets
congeal not allowing any option for either revision, nor is there any tab for refilling. As a result many have
not filed Trans 1 nor taken credits validly due under law defeating the purpose of the act itself. 312 Also
while there is a TRANS 2 deemed credit to be mandatorily indicated in TRANS 1. But what duty amount,
as the same is dependent upon sale. There is likely to be substantial litigation if issues are not clarified or
resolved earliest
Yet another extension for filing of returns and it came as a huge sigh of relief to the corporate world with
this being the first return (invoice wise filings), it was but obvious that there would be challenges. Some
know and some unknown. It is quite appreciative that the Government has this time been sensitive to the
issues being faced in uploading the data and has granted the extension quickly. With a lot of preliminary
work already being done to file the returns for July, what remains is further checking and cross checking
and companies should try and ensure that the first filing is fool proof to the extent possible. Companies
should not again wait till the 10th but try and close filings earliest possible. This though solves the
308
Sachdeva Overseas Versus State of U.P 2017 (10) TMI 252 ALLAHABAD HIGH COURT
309
Datey , V.S., Elements of Indirect Taxes, Taxmann, 5th Edition., 2014 p 67
310
2017 (8) TMI 1141
311
Press Release for Extension of GSTR FORM 3B, CBEC retrieved from http://www.cbec.gov.in/htdocs-cbec/gst/press-note-
GSTR-3B.pdf
312
2017 (10) TMI 253 - DELHI HIGH COURT
94
grievances of the corporate but gives a ample time to think and prepare for arbitrage if one is clever one
with in this challenging changing regime.
ISSUE OF SCOPE E-COMMERCE

Ecommerce is the growing are of law, technology as well as commerce and thus can be view in the
emerging field for the consumers and suppliers to buy and sell online but, according to Section 2(44) of
the central goods and service tax act, Electronic Commerce means and includes supply of goods or
services or both including digital products over digital or electronic network. The major issue in this regard
is that the current definition appears to include only 'supply on own account' and not 'supply through the
portal but by other Suppliers' meaning thereby a very restrictive scope of selling and commerce which is
inverse of the actual scenario in present times.
Also this definition of electronic commerce appears to exclude 'information portals' and 'customer to
customer' portals but the same will be covered by section 52(1) somehow. Also if such issues continue to
stay behind in scope, it would make implementation of the provisions of TDS 313, next to impossible. It
would be important here to note that, thus a narrow interpretation to this will eventually defeat the purpose
of the TDS and tapping the customer transactions on the website, of which the sections are yet to be
enforced in this challenging changing regime.
ISSUES INVOLVING COMMERCIAL PRACTICES

The business concern may decide that the non-establishment forms of doing business abroad do not result
in a sufficient degree of market penetration for a number of reasons. We have already seen that direct sales
to a foreign market are often limited by the seller’s lack of knowledge of the foreign market and a lack of
a local distribution network.314
Indian markets are also no exception to it and so the change that has been brought by the challenging
changing regime of the goods and service tax. In case of supplies of goods in respect of which tax is paid
or liable to be paid on reverse charge basis315, the time of supply should be the earliest of the following
dates, namely date of payment, date of receipt of goods/services or date of issue of invoice. Looking at
the practices prevalent in India, it can be contended that the time period of thirty/sixty days from the date
of issue of invoice by the supplier is quite short considering the time taken for delivery of goods with
invoice and may create unnecessary interest liability if payment is not made within thirty or sixty days.
Second provision 316 provides that where a recipient fails to pay to the supplier of services, the amount
towards the value of supply of services along with tax payable thereon within a period of one hundred and
eighty days from the date of issue of invoice by the contractor, an amount equal to the input tax credit
availed by recipient should be added to his output tax liability, along with interest thereon, in such way as
may be prescribed. Also there interest, as provided should not exceed five thousand in aggregate is a huge
chunk provided for in this act.
Many Justifications have been issued by the government in this regard that there are lot of apprehensions
expressed in the media about the issue of blockage of working capital for exporter’s post-goods and service
tax. There are various figures also being discussed on the blockage of such funds, which are wild estimates.
Such media reports are not based on facts.317 Thus, it can be said that government needs to give due
313
Section 51 of the Central Goods and Service Tax Act
314
S. Chow, International Business transactions: Problems, cases and materials, Wolters Kulwer, Aspen Casebook Series
September 2017
315
Section 12(3) of the Central Goods and Service Tax Act, 2017
316
Section 12(3) of the Central Goods and Service Tax Act, 2017
317
India, CBEC, Retrieved from http://pib.nic.in/newsite/PrintRelease.aspx?relid=171021
95
consideration to the lex macetoria in order to bring about the needed changes in this challenging changing
regime.
ISSUE OF BLOCKAGE OF FUNDS

The provision seems beneficial but restricting the period of one year for availing Input Tax Credit on
Capital Goods is very less due to reasons that credit period or working cycle of the firm may differ from
one to another operating cycle being short or long as the case maybe. For a dealer purchase of Capital
Goods is a rare activity where a huge investment is involved. The dealer will transit to goods and service
tax with such high tax paid capital goods and is expected to use them for further supply in goods and
service tax regime but non availability of credit may hinder the passing of the benefit to the actual customer
itself.
Further, a percentage point method should be prescribed for taking input tax credit in case of capital
goods.318 Thus, there seems a gap between the provisions of section 18(1) and Sec 18(2) since percentage
point method is used for a longer period.
Further the registration is a turnover based process, registration of assesses with specified aggregate
turnover are liable to get themselves register under Section 22 on the central goods and service tax Act,
2017 provides that every supplier should be liable to be registered under this Act in the State or Union
territory, other than special category States, from where he makes a taxable supply of goods or services
or both, if his aggregate turnover in a financial year exceeds Rs. 20 lakhs
However, Section 7(1) of the central goods and service tax Act provides that “supply” includes all forms
of supply of goods or services or both such as sale, transfer, barter, exchange, licence, rental, lease or
disposal made or agreed to be made for a consideration by a person in the course or furtherance of business.
Further “aggregate turnover” 319 means the aggregate value of all taxable supplies (excluding the value of
inward supplies on which tax is payable by a person on reverse charge basis), exempt supplies, exports of
goods or services or both and inter-State supplies of persons having the same Permanent Account Number,
to be computed on all India basis but excludes central tax, State tax, Union territory tax, integrated tax and
cess;
Thus the issue so arises that In case a person is earning interest income from Fixed Deposit Receipts of
say rupees sixteen Lakhs and a Rental income from renting of immovable property of say rupees. seven
Lakh, he would need to take registration and collect goods and service tax on rented property (as it covered
under definition of supply). However, interest income on FDR is not liable to goods and service tax. On
inclusion of interest income in aggregate turnover unnecessary burden is imposed on various assesses
including senior citizens who are at present not involved in carrying business and for that person
complying the law is very difficult.
ISSUES OF LEVY AND COLLECTION OF TAXES VIS A VIS IMPORT AND EXPORT OF
GOODS AND SERVICES
The Collection and Levy of taxes has changed from the origin based principle to destination based
principle and also the scope and applicability of the provisions as to what is to constituted as a taxable
event has changed from “EXPORT” to “IMPORT”. But, the thing that hasn’t changed in times is the
318
as per clause (c) and (d) of Section 18(1)
319
section 2(6) of CGOODS AND SERVICE TAX Act, 2017
96
hustle and bustle that surrounds the filling and claiming of the eligible Input Tax Credit and introduction
of cess thereof. This question has been affirmed in the case of Mohit Minerals320
For export, the exporter was required to furnish turnover based information under the bond would cover
the amount of tax involved in the export based on estimated tax liability as assessed by the exporter
himself. The exporter should ensure that the outstanding tax liability on exports is within the bond amount.
In case the bond amount is insufficient to cover the tax liability in yet to be completed exports, the exporter
should deliver a fresh bond to cover such liability. Thus it was directed that directed that the exporters
should furnish a running bond, in case he is required to furnish a bond, now exempt.321 322
ISSUES REGARDING AUTHORITY OF ADVANCE

This was regarding the need for the alternative system of filing the applications of advance ruling 323 that
the web portal for uploading an application seeking an advance ruling is not going to be ready till 15th
January 2018 as filled in affidavit by the government. This is now fundamentally opposed to the principle
goods and service tax “easy and smooth flow of foreign credit” that a person seeking to enter into
transaction with the non resident can apply to a authority and get its prospective tax determined. Thus, as
an alternative, the goods and service tax network has decided to accept all such applications, including
applications from ‘unregistered persons’, manually with the facility to deposit the prescribed fees through
the GOODS AND SERVICE TAX Portal. 324
ISSUES OF DETERMINATION OF APPROPRIATE TAX SALB RATE AND PROCEDURES

For any indirect taxation mechanism to be successful, all we need is to determine the appropriate rate of
taxation or slab for the commodity. Also if we see, this was fundamental to concept of one nation one
market one tax as contended in goods and service tax. 325 In this ever-changing political motive or business
practices that have been alleged, there is ever changing rates of taxation on commodity by each goods and
service tax Council meeting. Thus, it would be here evident to note that there is still a confusion not only
among and Service Tax the government regarding the rate and slabs of taxes but also the assesses
regarding which slab rate to follow, thus, in adds to confusion rather than clearing of the one nation one
tax phrase.
In the case of Hughes & Hughes Chemical Imposition of 12 goods and service tax on sanitary napkins
was challenged on ground of fiscal gender biasness which is a matter pending in court of law whether this
commodity can be put under the exempt category of the goods in order to promote health and wellness.
326
ISSUES RELATED TO UNCLEAR MECHANISM OF REVERSE CHARGE

Who has to pay tax of who is a question to be dealt under reverse charge mechanism? Reverse Charge is
a boon or a bane remains a question of fundamental to the effective implementation of the regime. Under
the goods and service tax regime, a person importing services for personal purposes327 should also be
liable to goods and service tax on reverse charge basis since the importation of service would be treated
as a supply whether or not for the business purposes.
320
Mohit Minerals Pvt. Ltd. Versus Union of India & Another (2017 (8) TMI 1194) (India)
321
FORM GOODS AND SERVICE TAX RFD -11 of CGOODS AND SERVICE TAX RULES,2017 (India)
322
Aphro Ecommerce Solutions Private Limited Versus Union of India & ORS (2017 (9) TMI 750)
323
Jindal Dyechem Industries (P) Ltd. Versus Union of India & Others 2017 (10) TMI 693 - DELHI HIGH COURT
324
Sanjeev Sharma Versus Union of India & Others (2017 (9) TMI 1357) (India)
325
M/s Ascics Trading Company Versus The Assistant State Tax Officer, The State Of Kerala 2017 (10) TMI 831 - KERALA
HIGH COURT
326
Hughes & Hughes Chem. Ltd. Versus Union of India & Another 2017 (10) TMI 602 - DELHI HIGH COURT
327
Section 7 (1) (b) of the Central Goods and Service Tax,2017
97
The fundamental question that arises with the reverse charge mechanism (RCM) is that whether the who
would be liable to pay tax in case of unregistered person liable to pay goods and service tax for the receipt
of services from the registered person. For example, if we take legal services are to be governed by the
reverse charge mechanism than there would be no purpose in requiring legal practitioners and law firms
to compulsorily get registered under the central goods and service tax, integrated goods and service tax
and/or Delhi goods and service tax acts and similar for all the providers of services to unregistered persons
liable to pay take under RCM, is just beginning of the issues so faced by the assesses and that would be
faced in near future because of RCM.328 329
Thus, because of this, Compliance with goods and service tax provisions is a costly and time consuming
process and as such rather an ineffective process to tap as to what is it making it applicable on household
personals will not be fair to individual assesses or at least some exemption be provided for such
transactions. A similar type of exemption limit330 of say fifty thousand can be provided so that there
transactions can be traced in the name of exemption to a certain extent.
WAY FORWARD
Apart from the issues that have been discussed in the paper and their solutions, the government and the
Central Board of Excise and Customs with other stakeholders may work upon not only the short comings
highlighted setting up of bodies, their functioning but also work on the effective implementation of the
letter of law by creating a mechanism such as abolishing of Nil Returns, now a days just acting as mere
attendance on portal every month, because this gives an ample scope to the revise, arbitrage and settle the
terms of the business and pass adjustments.
Further in order to support smooth transition and ensure reduced litigations, Advance Ruling Authorities
and provisions of TDS/TCS be notified at the earliest so as to enable the tax payers to apply and clarify
regarding tax implications. In lines with Central Excise Tariff Act, interpretive notes to goods and service
tax classification of Goods as well as Services be provided to ensure the correct classification of good and
to effectively pass on the real intended benefit to the real retail consumer, an application base service may
be introduced on each mobile platform to create an awareness as to whether correct rate is charged or not
on the indented commodity. Similarly, a calculator to calculate the actual value of goods and service tax
should be released on similar terms with the computation of Direct tax on Income.
Further the Government should ensure that any taxes, duties, cesses, fee and charges levied under any
other statute be excluded from the transaction value so that spirit of goods and service tax may be
maintained and thus, the government should also consider introducing a separate slab rate, on demerit
goods, saying alcohol for human consumption and taxing it at highest rate of say 40 percent. and in order
to maintain the level playing field, petroleum products and electricity to be brought within the ambit of
goods and service tax immediately but only after the appropriate compensation is provided to states in this
regard. these industries if kept outside the purview of goods and service tax would face the issues like
cascading of taxes, non-availability of credit, maintaining separate books of accounts for claiming ITC
which will further simplify the taxation of demerit goods and in order to avoid possible litigation, it should
be suitably clarified regarding time of supply in case of change in rate of tax with respect to continuous
supply of services/goods.
328
JK Mittal & Company Versus Union of India & Ors (2017 (7) TMI 542) (India)
329
Rajasthan Tax Consultants Association Versus Union Of India And Ors
330
Press Note released by CBEC can be retrieved from http://www.cbec.gov.in/htdocs-
cbec/gst/20171006_PressRelease_22ndGSTCMeeting.pdf
98
Further the supplies covered under reverse charge mechanism be kept outside the ambit of exempt supplies
for the purpose of proportionate credits so that purchases of goods or receipt of services from unregistered
vendors, who are below threshold limit of Rs. 20,000 be exempted based on declaration and be kept at
bay till effectively goods and service tax is in implementation. Further import of services for personal
purposes should be kept outside the purview of goods and service tax. Alternatively, an exemption limit
of rupees one lakhs or more or less can be prescribed for such transactions of related party without
consideration because of difficulty to tap such transactions or make available for a certain exemption limit
for the same.
Further Anti-profiteering measures should have been implemented from day one of goods and service tax
but so as to ensure that benefit of credit available is ultimately passed on to the consumer should not be
deferred further. However, with change in law and to enable ease of understanding for all assesses Anti-
profiteering measures be kept in abeyance for two years. This should be implemented in spirit and letter
as soon as possible.
Further it can be observed that due to paucity of time rushed disposals of pending cases being done
resulting into undue huge demand leading to pendency of cases as well blockage of funds due to
mandatory pre deposit especially in cases of CENVAT and SERVICE TAX. This will fundamentally
defeat the principle of gunfire out bogus claims and transactions of the previous laws enforce in country.
Thus, It would also be beneficial on the part of the administration and implementation authorities to set
up an Anti-Corruption measures need to be strengthened by building in the accountability of Revenue
officers. A full Compliance Rating be given to the officers ensure obedience on their part, apart from
education of handling the new mechanism of the technology.
CONCLUSION
Today, in this era of modern global cut throat competition, challenging and changing regimes and
introduction of new laws every fortnight, it is the most difficult task to conclude the invincible task of
compilation of the on and ever evolving law. It cannot be truly placed that the previous regime of indirect
taxation was absurd, but was imperfect and with short comings and that’s what the nature of laws of lands
is, ever evolving! However, it is important for every stake holder to contribute its part towards making the
regime successful otherwise of which, the law would remain as a bare letter on piece of paper.
Thus, to conclude, the letter and spirit of the laws of land can only be achieved with closed cooperation
of all the stakeholders is achieved in all facets of the implementation and augmentation challenges that
the industry and participants is facing today in areas of compliance, management, registrations and records
and head an outlook of the Indirect taxation regime in India from its brighter side to shady and grey areas
affecting top to bottom line of stakeholders. Thus “what we can do individually becomes simpler when
really does it together as one...”
99
Process of Appointment of Judges in Higher Judiciary in India

Mohd. Imran & Dr. Rashmi Khorana Nagpal331
Introduction:
Throughout the years, there was a convention of designating judges of the Supreme Court of India generally
based on status. Anyway when this convention was disregarded in 1973 and 1976 and the senior most judge was
ignored in arrangement as Chief Justice of India, even the best clarification from the officials could not submerge
the general population feeling that treachery has been finished. Consequent choices have guaranteed that the
Supreme Court is presently an official conclusion producer in the arrangement procedure. In any case, generally,
the issue of position has again woken up when the President restored the proposal of the Supreme Court Collegium
for elevation of 3 judges to Supreme Court on the ground that seniority has been ignored with no clarification. The
issue is as yet not settled with the Supreme Court having again restored the record with similar names emphasizing
that rank isn’t the main criteria to be mulled over for appointment of judges. The stand taken by the officials in
1973 and 1976, which evoked much analysis from the bar and the general population, has now been supported by
the Supreme Court Collegium.
The progressing debate has additionally raked up another issue that has been in the burner for quite a long
time, ie., who ought to designate the judges? The Constitution of India has set out that arrangements to High Court
and Supreme Court were to be made by the President of India in consultation with the judiciary. While the crucial
point associated with taking a decision is that the freedom of legal executive ought to be maintained, it is dicey
whether most nations think about the arrangement of judges as a vital piece of autonomy of the judiciary. In
actuality, an assessment of the situation in different wards would demonstrate that the legal arrangements in
numerous nations are made by the official, with changing state of legal, administrative and other expert
bodies/specialists. Such an arrangement procedure isn’t seen as in any capacity influencing the freedom of judiciary
in these nations.
The association between judicial appointments and the freedom of the judiciary is considered distinctly by
various nations. Everyone nation has its own history. The most ideal approach to analyze the manner in which these
standards are at present executed is to recognize who offers guidance on the reasonableness of hopefuls and who
chooses who is to be designated. In his investigation, Oberto offers a typology of four frameworks of choosing
judges:
a)nomination by the executive;

b)election;
c)co-option by the judiciary;
d)appointment by board of trustees comprising of judges and academicians following an competitive
procedure.
The typology looks clear, at the same time, truth be told, frameworks make utilization of a blend. Truth is told
that there are on a very basic level three conceivable models for obligations of a particular body named to manage
the procedure of appointment of judges:
(i). a body that chooses judges for appointment however does not have the obligation regarding making those
appointments – the selecting model;
(ii) a body in charge of choosing and naming judges: this could be known as the appointing model;
331
Mohd. Imran, Research Scholar, Shobhit Deemed University, Meerut
Dr. Rashmi Khorana Nagpal, Professor & Dean, Shobhit Deemed University, Meerut
100
(iii) a hybrid model whereby the body would be in charge of selecting a few yet not all judges.
The procedure of arrangement of the High Court must be started by the Chief Justice of the particular High
Court. The Chief Justices must cling to a period bound calendar with the goal that the posts of judges are not kept
empty for an extensive stretch. The proposition of the Chief Justice of the High Court must be sent to all other
sacred functionaries. Alternate functionaries, inside about a month and a half from the receipt of the proposition,
must pass on their perspectives to the Chief Justice of India. (It is not clear with respect as to why the perspectives
can’t be passed on to the Chief Justices of the High Courts).
In the event that the specific sacred functionary does not express its sentiment inside the predefined period,
it would be considered as a regarded concurrence with the proposal made by the Chief Justice. The Chief Justice of
India, subsequent to thinking about the proposals and the perspectives of the established functionaries, ought to
affirm his last sentiment and pass on to the President, inside about a month, of the last move made. The Chief Justice
of India should consider the perspectives of his partners in Supreme Court who are probably going to be familiar
with the issues of the concerned High Court. It ought to be noticed that these necessities don’t change the
methodology set down. It must be considered by the collegium comprising of the Chief Justice of India and two
senior-most Supreme Court judges. The procedure of appointment to the Supreme Court ought to be an
incorporated, participatory and consultative procedure of every protected functionary who must play out their
obligation on the whole in order to meet the required sacred destinations. It is additionally open to the Chief Justice
of India to suggest the underlying arrangement of an individual to any High Court other than the High Court for
which the proposition was started, given the other sacred necessities are fulfilled.
On the off chance that there are any complaints for the arrangement of a specific individual, it ought to be
for valid justifications, which must be uncovered to the Chief Justice of India to empower him to reevaluate and
pull back his suggestions on these conditions. In uncommon cases, even an applicant prescribed by the Chief Justice
requires not to be named, if there are substantial complaints for his arrangement. The complaints can identify with
his character, lead, wellbeing or different variables. Likewise, if his residency is probably going to be short, the
arrangement require not be made. In uncommon cases, regardless of whether the feeling of the Chief Justice of High
Court clashes with that of the Chief Justice of India, the arrangement require not be made. A few inquiries were
raised by this judgment and in this way In Re Presidential Reference332 dated 23rd July 1998, the Apex Court cleared
up the recommendation with the accompanying standards that interview with the Chief Justice of India does not
mean meeting just with the Chief Justice. It requires meeting with a majority of judges. The Chief Justice of India
needs to frame a collegium of four senior most puisne judges of the Supreme Court. This is important for
arrangements for judges of the Supreme Court or to exchange a High Court Chief Justice or a High Court judge.
For arrangement of the High Court judges, the Chief Justice needs to counsel two senior most judges of the
Supreme Court. This collegium can likewise consider the perspectives of a Supreme Court judge from the specific
High Court to which arrangements are to be made. For instance, if arrangement is to be made to the Madras High
Court, collegium of the three judges can counsel the senior-most judge of the Supreme Court from the Madras High
Court. This will be fundamental in the event that he isn’t a piece of the Collegium. They can likewise consider the
perspectives of other Supreme Court judges or Chief Justices of the High Courts. This is to guarantee that the most
ideal ability is conveyed to the Supreme Court Bench.
Until 1998, the collegium comprised of the Chief Justice of India and two senior-most judges. From that
point, it was changed to the Chief Justice and four Judges of the Supreme Court. The feeling of the collegium will
have supremacy in the matter of arrangements. It is available to the Executive to illuminate the collegium of its
complaints. Be that as it may, if the Chief Justice and his sidekick judges are still of the view that there is no
motivation to pull back their suggestion, at that point that arrangement ought to be made as an issue of solid tradition.
Be that as it may, regardless of whether two judges have genuine reservations about a specific arrangement, at that
point it ought not to be made.
The Supreme Court can likewise counsel different judges of the Supreme Court, judges of the High Court
or even the Members of the Bar with respect to a specific arrangement. The perspectives of the individuals from the
332
AIR 1999 SC 1
101
collegium ought to be made recorded as a hard copy and ought to be sent to Government of India alongside proposals
of the Chief Justice. Be that as it may, when the Chief Justice counsels other Supreme Court Judges or individuals
from the Bar these perspectives ought to be outlined in a reminder and sent to the Government of India.
In the event that a few individuals from the collegium have resigned before a specific arrangement is made
and the Government of India has sent back antagonistic remarks, at that point the Chief Justice needs to comprise
another collegium by adding the imperative new judges to frame the collegium. In such an occasion, there must be
unanimity in the arrangement that will be made. The Chief Justice may, in his watchfulness, illuminate the
individual of the complaints raised by the Government of India. The collegium can require the answer of the
imminent deputy and consider his clarification before either pulling back the designation or affirming it. Legitimacy
is the transcendent thought for arrangement to the Supreme Court however position ought to be remembered. The
Supreme Court has held that rank can be disregarded in instances of extraordinary legitimacy. The collegium for
endorsing the arrangements of High Court judges is the Chief Justice and two senior-most puisne judges of the
Supreme Court.
The Chief Justice should consider the perspectives of the Supreme Court Judges who are probably going to
be acquainted or comfortable with the undertakings of the concerned High Court. They should likewise consider
the sentiments of the Chief Justice of the specific High Court; this is qualified for the best weight. In many nations,
the idea of legal freedom does exclude a high ground for legal executive in the legal arrangements process. Legal
arrangements, particularly arrangements to higher legal discussions are seen by numerous nations as progressively
a political procedure instead of a routine regulatory exercise. In numerous nations, where having a state in legal
arrangements for legal executive is seen as a piece of legal arrangements, straightforwardness and responsibility in
the legal arrangements process is likewise considered as an indispensable component of legal freedom. In the
ongoing years, numerous nations are moving towards giving a more prominent state to autonomous bodies with
high thickness of legal officers, and setting up a free procedure, with less possibility for impact from political official
and legal chain of command that gives straightforwardness and responsibility in the legal arrangements process.
In India, however a higher state for legal executive in legal arrangements have be ardently maintained by
the legal executive through back to back choices, there has been no move to get straightforwardness and
responsibility all the while. An assessment of the situation in different nations as above demonstrate that in many
spots official has matchless quality in arrangement of judges to Higher Judiciary, where as in India this has been
seized by legal executive under the clothing of “compelling meeting”. While the other Constitutional bodies like
Public Service Commission likewise has been conceded freedom in working by the Constitution, they don't get the
benefit of choosing their individuals. Consequently one contention is that the power of legal executive in
arrangement of judges isn’t a fundamental or even important precept of autonomy of legal executive. Unexpectedly
guaranteeing the nature of legal arrangement is one of the imperative factors in legal autonomy and the official,
legal executive and governing body, ought to be similarly in charge of the arrangement of judges. An investigation
of most vote based systems would demonstrate that every one of these columns have risen to job in arrangement of
judges with no arm having matchless quality or restrictiveness. It is proposed that India additionally copy a
comparable example where level with significance is given to all arms of government, and the official, being in
charge of the arrangement getting an extreme high ground. There ought to likewise be a development to get more
prominent straightforwardness and responsibility in the legal arrangements process, and this would require no not
exactly an open and submitted mind at the authoritative, legal and official higher echelons.
Recasting the Judicial Appointments Debate:
The Constituent Assembly held incredible discussions as respects the issue of appointment of judges is
concerned. Legal autonomy was viewed as an essential necessity for the legal executive to mediate fairly, protected
from political obstructions. As per Dr. Ambedkar, there were two elective methods of designating Judges which
were put before the Drafting Committee. The first one was the arrangement of Judges in the United Kingdom where
the officials had capacity to designate one of the Judges of the High Court of Justice, and Lords of Appeal in
Ordinary in the House of Lords. In the United States, the President had capacity to choose Federal Judges with the
guidance and assent of the Senate. This technique diminished the outright intensity of the President as the Chief
Executive to choose Judges, by giving the Senate a veto. Between the outright intensity of the official in the United
Kingdom, and the President’s capacity in the United States, supported in by the veto of an authoritative body, the
102
Drafting Committee. Further, Dr. Ambedkar expressed that the proposed arrangement does not make the President
the incomparable and the outright expert in the matter of making arrangements.
The officials drove legal appointments proceeded for a couple of years after freedom. In any case, there
was disappointment among the legitimate club as respects the arrangement strategy, it was a typical view that
provincial and shared impacts and the obstruction of the official, obtained it to the Supreme Court. The best of the
ability was not mobilized.
The disappointment broadened when the Government left since quite a while ago pursued practice of
naming the senior-most judge as the Chief Justice of India and selected Justice A.N. Ray who was the fourth in the
request of position. Legitimizing this move, the Law Minister, Mohan Kumaramangalam proposed an extreme re-
translation to the arrangement procedure, by which the political logic of judges, as dictated by the administration,
would be a pertinent rule for appointment.
Advanced through a progression of three decisions gone by the Supreme Court and not made by an Act of
Parliament, the Supreme Court Collegium is driven by the Chief Justice of India and four other senior-most judges
of the court. The High Court collegium, in the interim, is driven by the Chief Justice of that specific court and four
other senior-most judges of the court. The High Court collegium requires the consent of the Chief Justice of India
and the Supreme Court collegium before the administration is counseled on the issue. For the higher legal executive,
the zenith court collegium vets the rundown of potential applicants, and the administration just comes in after the
names chosen for the rise.
The Center’s job, in the interim, is confined to leading an Intelligence Bureau-drove request if a legal
advisor is slated for height to a judge in the High Court and Supreme Court. With respect to appointments, the
Center can raise its complaints and look for elucidation from the collegium. In any case, if the collegium duplicates
down on its decision, the Center must withstand the choice before the President approves it. This arrangement
developed out of three decisions of the Supreme Court altogether passed known as the Three Judges Case, coming
full circle in the notable Supreme Court Advocates-on-Record Association v. Union of India 333 1993 judgment. In
its milestone 1993 judgment, the summit court held that the freedom of the legal executive, which is a piece of the
essential structure of the Constitution, was being undermined by the power of the official in key arrangements.
Having said this, the framework finds no notice in the Constitution. The system recorded in the Constitution for
legal arrangements goes under Articles 124(2) and 217.
Each Judge of the Supreme Court will be named by the President by warrant under his hand and seal after
counsel with such of the Judges of the Supreme Court and of the High Courts in the States as the President may
consider essential for the reason and will hold office until the point that he accomplishes the age of sixty-five years.
Given that on account of arrangement of a Judge other than the Chief Justice, the Chief Justice of India will
dependably be counseled as under Article 124(2). Under Article 217, each Judge of a High Court will be selected
by the President by warrant under his hand and seal after interview with the Chief Justice of India, the Governor of
the State, and, on account of arrangement of a Judge other than the Chief Justice, the Chief Justice of High Court.
Prior to the beginning of a Collegium framework, the prevalent view expedited by the activities of the Indira Gandhi
government was that “politically dedicated” judges or those indebted to the decision foundation were named. The
1993 decision was intended to change that dynamic. Be that as it may, Finance Minister Arun Jaitley in a 2015
posted in opposition to the court’s view that both (Article 124 and 217) accommodate the arrangement to be made
by the President in discussion with the Chief Justice of India. The order of the Constitution was that Chief Justice
if India is just a ‘Consultee’. The President is the Appointing Authority. The fundamental rule of elucidation is that
a law might be translated to give it an extended significance, however they can’t be revamped to mean the specific
inverse, Finance Minister Arun Jaitley composed, including that the present framework executed the “oppression
of the delegated.”
In spite of the fact that the Collegium framework acquired more prominent autonomy the working of the
higher legal executive, they contended that the procedure was non-straightforward with charges of nepotism
overflowing. The arrangement of balanced governance assumes an indispensably critical job in guaranteeing that
none of the three organs of the government: legislature, executive and judiciary can restrain the forces of the others.
Thus, nobody can attempt and turn out to be excessively incredible. Then again, actually this applied clearness has
333
AIR 1994 SC 868
103
not converted into the real world. Additionally, pundits contend that repetitive activism by the legal executive in
issues under the immediate ward of the official has irritated the sensitive parity of forces cherished in the
Constitution.
The Center looked to address these issues by tabling the National Judicial Appointments Commission
(NJAC) Bill, which tried to give the legislature a more noteworthy state in the arrangements of judges. The bill was
passed by the two Houses of Parliament, yet the Supreme Court struck it down totally, in spite of the fact that it
admitted to the requirement for more prominent straightforwardness in its working. Hon’ble Justice Chelameswar,
the main judge to contradict against his associates, made a similar point. He took a stand in opposition in the absence
of straightforwardness the two arrangements and legal procedures. The requirement for straightforwardness is more
on account of arrangement process. Procedures of the collegium were completely obscure and difficult to reach
both to open and history, excepting periodic breaks. He additionally said that barring the legislature totally from the
procedure of arrangements was "completely nonsensical and conflicting with the establishments of the hypothesis
of majority rule government and a doctrinal sin. 334
Rather, the court requested the legislature to issue another Memorandum of Procedure (MoP) for the
arrangement of High Court and Supreme Court to make a decision in October 2015. This MoP tried to address the
absence of straightforwardness, particularly in the higher judiciary without essentially undermining the freedom of
the legal executive. Following quite a while of forward and backward, the pinnacle court at last sent its draft of the
MoP to the Center in March 2017. Nonetheless, the Center not long ago said that finish of the MoP is going to take
additional time. With the MoP at an impasse, the collegium keeps on working as previously.
In 2013, two Bills were acquainted with change the procedure of appointment in the Supreme Court and
the High Courts. The Constitutional (120th Amendment) Bill, 2013 and the Judicial Appointments Commission
Bill, 2013 (Bill) look to build up a Legal Appointments Commission (JAC) to name judges to the Supreme Court
and the High Court. As of now, the arrangement of judges to the Supreme Court and the High Court is
accommodated, under Article 124(2) and Article 217(1) of the Constitution of India, 1950. The President of India
is required to ‘counsel’ with the Chief Justice of India and in the event of High Court arrangements, to counsel the
Governor and the Chief Justice of the separate High Court. The Supreme Court on account of Supreme Court
Advocates-on-Record Association v. Association of India335 in managing Article 124(2) and 217(1) of the
Constitution deciphered ‘concurrence’ to mean ‘consultation’. The Advisory Opinion of the Supreme Court in 1998
recommended an unmistakable procedure of arrangement whereby the judiciary through its collegium comprising
of the Chief Justice and two or four senior judges, by and large, would prescribe names to the President, their
identity bound by the choice of the Collegium. This methodology of appointments as a result, presents upon the
legal executive the ability to delegate judges of the higher courts.
Conclusion:
The Amendment proposes a new Article 124A to create a Judicial Appointments Commission and provides
that the structure, composition and functioning of the JAC will be enacted in a separate law by the Parliament. The
Amendment provides for the President to make appointments on the recommendation of the JAC. This Working
Paper is isolated into three sections. In the initial segment we audit the arrangement process as it right now remains,
by breaking down the decisions and the socio-political conditions encompassing them. In the second part we present
the distinctive models of arrangement in sacred vote based systems around the globe and contend why the legal
arrangements commission display is the most ideal alternative among the distinctive accessible models. In the third
part, we break down the holes and weaknesses of the Bill and the Amendment and make suggestions to determine
a portion of these holes. We infer that the making of a Judicial Arrangements Commission isn’t a stage back to the
first sacred position in the Constitution of India, 1950 yet rather, a solid chance to make another participatory and
straightforward strategy for arrangement to the legal positions in accordance with contemporary established
structure. This change would reestablish equality among official and legal executive in appointment of judges,
which is established and in congruity with rule of law and separation of powers.
334
https://www.prsindia.org/billtrack/the-national-judicial-appointments-commission-bill-2014-3359
335
AIR 1994 SC 868
104

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LEGAL DESIRE QUARTELY INTERNATIONAL JOURNAL ON LAW, ISSUE 19 TH

ISSN NO: 2347-3525 Copyright © 2019 Legal Desire.

Editorial Board Members:

Executive Assistants: Ritwika Pati, Mohd Ijas, Swagata Banerjee

With Regards & Love for Readers,

Freedom of Press Pro Rata Article 19 ....................................................................................................................... 2

PROCESS OF APPOINTMENT OF JUDGES IN HIGHER JUDICIARY IN INDIA………………………………………………………….100

Freedom of Press Pro Rata Article 19

History of freedom of press

What is freedom of press?

ROLE OF MEDIA IN DEMOCRACY

RIGHT TO PRIVACY: ISSUES & CONCERN

FACEBOOK TERMS AND CONDITIONS

PRIVACY AN EMERGING CONCEPT IN INDIA WITH RESPECT TO UK, USA, AND

AN ANALOGY BETWEEN THE LAWS OF UK, EU & INDIA

UNIFORM CIVIL CODE

Concept of Uniform Civil Code

Legal Dimensions and Origin

Goa Civil Code

Difference with the Indian Law

Relation between UCC, Personal laws and Secularism

Relation between UCC and Personal laws

UCC and Secularism

 Arab Ahemadhia Abdulla v Arab Bail Mohmuna65

Are we really prepared for a UCC?

ANTI DUMPING REGIME IN INDIA

ADVANTAGES & DISADVANTAGES OF DUMPING

 The products are sold at an unfairly competitive low price.

DIFFERENCE BETWEEN ANTI-DUMPING DUTY & NORMAL CUSTOMS DUTY

The areas which have seen significant levels of complexity are:

a) Determination of “Product Under Consideration” and “Like Article,”

b) Determination of “Domestic Industry” and “Standing,”

c) Determination of “Individual Margins for Exporters/Producers,”

e) Circumvention of Duties by modifying the goods or changing the country of production/export.

a) Determination of “Product Under Consideration” and “Like Article,”

b) Determination of Domestic Industry and Standing

c) Determination of individual margins for exporters/producers

Confidentiality remains an issue between stake holders involved in an investigation. Availability of

WHAT IS FREEDOM OF PRESS OR MEDIA

IMPORTANCE OF THE FREEDOM OF MEDIA OR PRESSFreedom of the press is constructing as

A PRE – INDEPENDENCE HISTORY OF PRESS FREEDOM IN INDIA:-

In the interests of the sovereignty and integrity of India.

The security of the state

Friendly relations with foreign states

Decency or morality or in relation to contempt of court

Defamation or Incitement to an offence.

CONSTITUTION OF INDIA, PREAMBLE

Making people more aware of their rights and entitlements;

Enabling people to have access to Government programmes, schemes and benefits;

Educating the public on social, economic and environmental issues;

RECOMMENDATIONS FOR ENSURING FREEDOM OF PRESS:-

PRESS IN INDIA AND THE REACTION OF SUPREME COURT

ORGANIZATIONS FOR PRESS FREEDOM:-

1.) American Civil Liberties Union

3.) Canadian Journalist for Free Expression.

4.) The Committee to Protect Journalist.

5.) Electronic Frontier Foundation

6.) Index and Censorship

7.) Inter American press Association

8.) International Freedom of Expression Exchange.

9.) Media Legal Defence Initiative.

10.) Student Press Law Centre.

11.) Worldwide Governance Indicators.