IJSLR V5 I3 Draft

International Journal of Socio-Legal Research 1
Volume 5| Issue 3|August 2019 |ISSN-2393-8250
SURROGACY VIS-À-VIS SURROGACY REGULATION

BILL, 2016
(Surrogacy in the contemporary world: social, ethical and legal challenges)
Sushant Nain* & Aayushi Bana**
INTRODUCTION
Throughout the years, the act of surrogate parenthood and the up and coming
results has extended with the intermingling of the improvement of cutting
edge and brand new therapeutic methods. Fruitlessness has still been in the
rundown of the world's uncertain and vexed issues. It influences the lives of
a large number of the general population on the globe and results in issues,
for example, divorces and mental issues among individuals. The very word
‘surrogate’ means ‘substitute’. This implies that the surrogate mother is the
substitute for the mother who is unable to have a child. In the process of
surrogacy, the surrogate mother is the biological mother of the child. The
process of surrogacy has been used as a measure throughout the world.
Intended parent(s) may figure out for surrogacy arrangement when they have
failed via traditional methods or techniques (including In-Vitro Fertilization)
of conceiving a child, the pregnancy is medically impossible or it becomes
dangerous for the health or life of the mother or the couple to get pregnant
and give birth to a child. According to the Artificial Reproductive Technique
(ART) Guidelines, ‘Surrogacy’ is an arrangement in which a woman agrees
to a pregnancy, achieved through assisted reproductive technology where
neither of the gametes belong to her or her husband, with the intention of
carrying it to term and handing over the child to the person or persons for
whom she is acting as surrogate. A ‘surrogate mother’ is a woman who agrees
to have an embryo generated from the sperm of a man who is not her husband
and the oocyte for another woman implanted in her, to carry the pregnancy to
full term and deliver the child to its biological parents(s). The intending
parent(s) is the person(s) who requests another to carry a child for them with
the intention that they will take custody of the child following the birth. Such
persons may, or may not be, genetically related to the child born as a result
of the arrangement.
THE ARRANGEMENT OF SURROGACY IN INDIA

India has been a favourite country for those wanting a surrogate child. The
cheap availability of the service enables an overuse of the practice with
commissioning parents arriving from various other countries as well. In 2002,
the Indian Council of Medical Research (ICMR) laid out various provisions
and guidelines for surrogacy which turned the practice legal, but did not give
it a legislative backing, though. This led to a booming surrogacy industry
which had lax laws and no enforcements in the country. A study conducted
in July 2012, backed by the UN, put the surrogacy business at more than $400
million with more than 3000 fertility clinics all over the country. The ICMR
even without legislative backing, provided pro-surrogacy guidelines that
protected to an extent, the surrogate mother and the commissioning parents.
It prohibited sex-selective surrogacy, required the birth certificate to only
have the names of commissioning parents, required one of the commissioning
parents to be a donor, required a life insurance cover for the surrogate mother
and ensured right to privacy of the mother and the donor, amongst the other
things involved in the process.1
However, the various reasons for the intended parent (s) (foreigners) coming
to India in search of surrogate mothers, vary widely. The practice of surrogate
motherhood in the country is usually undertook by the women coming from
the spectrum of lower class to lower middle class backgrounds. This made
*Student, Jamia Millia Islamia, New Delhi

**Student, Jamia Millia Islamia, New Delhi
1
Tarishi Verma, ‘What are the surrogacy laws in India: Here is everything you need
to know’, ‘Indian Express’, March 6, 2017.
India a hub for easy surrogacy and improved the surrogacy tourism in the
country. Such factors led to a surrogacy boom in India over other nations and
attracted people worldwide. The reason behind this is related to the presence
of a huge number of women to take up these positions, generally due to
financial incapacity of the family. These women are married and are typically
in need of money or the monetary consideration in the agreement of
surrogacy. The conspicuous and visible point here is that this need of
surrogate mothers is so acute that almost a good amount of intended parent(s)
agree to this price. The intended parent(s) often negotiate with this price in
some cases, due to the consequences of competition in the market for these
services. Ultimately, this consideration/amount serves as the economic
lifeblood for the families and is spent on the basic and cardinal needs of the
family such as education, medical treatments etc. These may seem trivial and
inconsequential to many of us, but they become paramount needs for a
country like India which lacks social, economic, political and moral safety
nets and has an extensive aperture between the rich and poor which gets
massive with each passing day.
In accordance to the Director-General, ICMR, Soumya Swaminathan, the

past decade, commercial surrogacy has grown tremendously with a high pace
in India. It is currently estimated to be $2-billion industry. Before November
2015, when the government imposed a ban, the foreigners accounted for 80
per cent of surrogacy births in the country.2
2
Soumya Swaminathan, Director-General ICMR, ‘Why the Surrogacy Bill is necessary’,
‘The Hindu’, August 28, 2015.
Due to controversy with intended parent(s) abandoning their children in India,

the Indian government is moving to have a bond posted where intended
parent(s) can financially support children that are born via Indian surrogates.3
A high court recently ruled that Indian surrogates are now entitled to pre and
post natal maternity leave.4
The Indian Council for Medical Research has given Guidelines in the year
2005 regulating Assisted Reproductive Technology (ART) procedures. 5
The Law Commission of India submitted the 228th report on Assisted

Reproductive Technology (ART) procedures discussing the importance and
need for surrogacy and the steps taken to control surrogacy arrangements with
the recommendation to prohibit commercial surrogacy and allowing an
ethical altruistic surrogacy to needy Indian citizens by enacting a suitable
legislation.6
In 2014, a ban on surrogacy was placed for homosexual couples and single
parents.7 Various other such measures have been taken to regulate the
arrangement of surrogacy for the protection of rights of the surrogate mother
and the concerned child.
3
Amrit Dhillon, ‘India to introduce law requiring bond for surrogacy hopefuls’, ‘Sydney
Morning Herald’, July 3, 2015.
4
Mel Spencer, ‘New surrogacy laws in India cause alarm for conservatives’, July 21,
2015.
5
The Assisted Reproductive Technologies (Regulation) Bill-2010, Indian Council of
Medical Research (ICMR), Ministry of Health &Family Welfare, Govt. of India.
6
Soumya Swaminathan, Director-General ICMR, 'Why the Surrogacy Bill is necessary’,
‘The Hindu’, August 28, 2015.
7
‘International Medical Travel Journal’, December 07, 2015.
THE SURROGACY REGULATION BILL, 2016

One such step is, The Surrogacy (Regulation) Bill, 2016. When India
legalized commercial surrogacy in 2002, it slowly gave rise to a booming
industry of foreign surrogacy requirements and fertility tourism, so much that
commercial surrogacy was banned in 2015.8
The highlights of the Bill are – It permits surrogacy only for couples who
cannot conceive a child and this procedure is not allowed in case of any other
medical conditions which could prevent a woman from giving birth to a child.
The child born through surrogacy will have all the same rights as that of a
biological child. It specifies eligibility conditions that need to be fulfilled by
the intending parent(s) in order to opt for surrogacy. Central and state
governments will appoint appropriate authorities to grant eligibility
certificates to the intending parent(s) and the surrogate mother. These
authorities will also regulate surrogacy clinics. These registered surrogacy
clinics will have to maintain all the records for a minimum period of 25 years.
The intending parent(s) must be Indian citizens between the ages of 23-50
years (woman) and 26-55 years(man) and married for at least five years with
at least one of them being infertile. The surrogate mother has to be a close
relative who has been married only once during her lifetime and her age
should be between 25-35 years and has had a child of her own. She may also
donate her own egg for the pregnancy, if needed. No payment other than
reasonable medical expenses can be made to the surrogate mother. The
surrogate child will be deemed to be the biological child of the intending
parent(s). Undertaking surrogacy for a fee, advertising it or exploiting the
surrogate mother will be punishable with imprisonment for 10 years and a
fine of up to Rs 10 lakh. In order to take care of those mothers or couples who
8
Malavika Ravi, ‘A critical analysis of the Surrogacy Regulation Bill 2016’, August 31,
2016.
have opted for surrogacy as on date, the Bill prescribes a period of 10 months
to ensure that inconvenience is not caused to the couples and surrogate
mother. For an abortion, in addition to complying with the Medical
Termination of Pregnancy Act, 1971, the approval of the appropriate
authority and the consent of the surrogate mother is required. The Bill does
not specify a time limit for granting such an approval. Further, the intending
parent(s) has no say in the consent to abort.9
This Bill if passed, will be applicable to the whole of India, except the state
of Jammu and Kashmir.10
The bill is made with the intention of preventing the exploitation. This limits
the possibility of surrogacy to a very large extent. The idea of ‘Altruistic
Surrogacy’ expressed in the Bill, greatly limits both the potential surrogate
mothers as well as the couples wanting children, because the women can
become surrogates only once and the couples who do not find willing
relatives have only one way out – ‘Adoption’ (In other countries Altruistic
surrogacy is allowed but is not limited to relatives and one-time pregnancy).
Additionally, egg donations are also banned, perhaps in order to curb child
trafficking and illegal surrogacy racket. The bill is extremely important in
certain places of India for example, Gujarat, where ‘baby farms’ exist, i.e. the
underprivileged and penurious women are rounded up in scores and are asked
to practice surrogate motherhood for the potential parents. One of the most
contentious points of the bill is its blatant ban on surrogacy rights of
homosexual couples, live-in parents and single parents. The bill does not
permit the arrangement of surrogacy for homosexual couples, live-in parents
and single parents and thus, denies the surrogacy rights. Neither the NRIs nor
9
PRS Legislative Research, ‘The Surrogacy Regulation Bill, 2016’.
10
Press Information Bureau, Government of India, Cabinet, August 24, 2016.
the Overseas Indians can opt for the arrangement of surrogacy in India. They
are also prohibited under this Bill. According to Union minister for external
affair, Sushma Swaraj, ‘the arrangement of surrogacy for homosexuals is
against ‘Indian Ethos’, although homosexuality has been constantly
mentioned in various Indian texts.’ 11
The issue of maternity relief for intended couple as well as the surrogate
mother has already been discussed by different High Courts in India.
However, the bill is silent about this issue. The Bill does not define the term
‘close relative’. There may be couples whose close relatives may not be
willing to act as a surrogate or such relatives does not satisfy other eligibility
conditions mentioned in the Bill. In such cases the intended couples will not
be able to enjoy the benefits of surrogacy procedures and satisfy their joy of
having a child genetically related to them. The Bill is silent about the issue of
the breach of terms and conditions of surrogacy by surrogate or indented
couple during the surrogacy process or afterwards.12
In view of the article ‘The Surrogacy (Regulation) Bill, 2016’, economically,

the bill is bound to have the affect on the thriving medical tourism in the
country and various people associated with it. There are certain countries,
where the surrogacy is banned for commercial reasons and people from such
jurisdictions came to India. There were also others who came from the
jurisdictions where surrogacy was available, but at an exorbitant price. India
being a safe core in comparison to countries like Indonesia, where fertility
procedures are completely unregulated, attracted the intended parent(s).
Competency of the Indian doctors and the environment of clean and hygienic
11
Malavika Ravi, ‘A critical analysis of the Surrogacy Regulation Bill 2016’, August 31,
2016.
12
Dr. Aneesh V Pillai, ‘The Surrogacy (Regulation) Bill, 2016: A Critical Appraisal’, ‘Live
Law’, January 22, 2017.
clinics became an important factor. There was also a contract to be signed

which eliminated exploitation and blackmail possibilities on both sides. A
blanket ban on such medical tourists makes no sense at all, especially when
we issue visas to them for other forms of medical tourism.13 Hence, limiting
the practice surrogacy only to Indian citizens is a measure which is against
the contemporary developments in international trade relations.
The recent proposed draft of the Surrogacy Regulation Bill, 2016 passed by
the Health Ministry, was shown green flag by the Union Cabinet on August
24, 2016. The draft of the Bill is set to be introduced in the Parliament soon.
While the Bill now stays in the Parliament and is debated on every detail, the
basic notion of dismantling the commercial surrogacy is at its zenith.
The concept of surrogacy is not backlashed by religious barriers because there

are no such references made in the religion going against the practice of
surrogacy. In a general view, there is no such law that deals with various
aspects of surrogacy and at present, it is governed by the Indian Contract Act,
1872.
CONCLUSION
In conclusion, it could be said that regardless of all the existing notions of
moral, ethical, social, legal and other problems attached with the arrangement
of surrogacy, the practice of surrogate maternity is still gaining momentum
each year throughout the world and keeping in mind the contemporary
developments, the arrangement of surrogacy cannot be demolished
completely. With this pace one day in the near future, the human society will
13
‘Insights into issues’, ‘The Surrogacy (Regulation) Bill, 2016.’
be accepting and adopting this medical technique throughout lands and

boundaries. However, the issues of rights (human rights) of women and the
child should also be addressed. It is important to prevent the violation of the
rights of the surrogate mother and the child or the parties concerned. A proper
legal mechanism and backing should be constructed at both national and
international level, with all the reasonable measures to succour the women
and child. This is necessary to demolish the social condemnation of the
arrangement of surrogacy.
UNCITRAL: THE BASICS OF INTERNATIONAL TRADE

Kartik Sharma*
Introduction
“Every man lives by exchanging.” – Adam Smith
International trade has been given a great deal of importance in the world
politics since its very beginning in the early 20th century. “International trade
comprises of the economic transactions that are made between countries.
Among the items commonly traded are consumer goods, such as television
sets and clothing; capital goods, such as machinery; and raw materials and
food. Other transactions involve services, such as travel services and
payments for foreign patents etc. International trade transactions
are facilitated by international financial payments, in which the private
banking system and the central banks of the trading nations play important
roles.”1 In other words, International trade is the exchange of goods and
services across international borders and territories.
With the birth of many new nations and the popularity of exchange of goods
and services amongst them, the complexity in the process of trade had to be
tackled. The regulation of the trade amongst nations was a task entrusted to
the United Nations. In an increasingly economically interdependent world,
the importance of an improved legal framework for the facilitation of
international trade and investment was widely acknowledged. As a result, the
United Nations Commission on International Trade Law (UNCITRAL) was
established by the member-states of the United Nations.
i) Origin:
The UNCITRAL was established by the UN General Assembly by resolution
*Student, Amity Law School, Delhi

1
International Trade, Britannica Encyclopedia
2205 (XXI) on 17th December 1966. The main purpose for the establishment
of this commission was the development of framework to further the
progressive harmonization and modernisation of the law of international
trade. This was to be achieved by preparation and promotion of legislative
and non-legislative instruments in a number of key areas of commercial law.
These instruments are negotiated through an international process involving
a variety of participants, including member States of UNCITRAL, non-
member States, and invited intergovernmental and non-governmental
organizations.
Ulrich Magnus in his book, Global Trade Law has said, “the United Nations
primarily through its agency UNCITRAL are eagerly productive in creating
instruments which regulate international business law. The goal of this
activity is for worldwide harmonisation of this branch of law and in fact a
considerable unification of international trade law has been achieved.”2
ii) Mandate:
UNCITRAL gives effect to its mandate by:
“(a) Coordinating the work of organizations active in this field and
encouraging cooperation among them;
“(b) Promoting wider participation in existing international conventions and
wider acceptance of existing model and uniform laws;
“(c) Preparing or promoting the adoption of new international conventions,
model laws and uniform laws and promoting the codification and wider
acceptance of international trade terms, provisions, customs and practices, in
collaboration, where appropriate, with the organizations operating in this
field;
“(d) Promoting ways and means of ensuring a uniform interpretation and
application of international conventions and uniform laws in the field of the
2
Global Trade Law, Ulrich Magnus
law of international trade;

“(e) Collecting and disseminating information on national legislation and
modern legal developments, including case law, in the field of the law of
international trade;
“(f) Establishing and maintaining a close collaboration with the United
Nations Conference on Trade and Development;
“(g) Maintaining liaison with other United Nations organs and specialized
agencies concerned with international trade; and
“(h) Taking any other action it may deem useful to fulfil its functions.”3
iii) Membership:
The UNCITRAL members are selected to represent different economic
development from amongst the member-states. The original membership
comprised of 29 states in 1966 and has been expanded twice since then, to
“36 States”4 in 1973 and to “60 States”5 in 2002. The membership of
UNCITRAL has been structured to ensure that various geographical regions
and economic structures of the world are represent. Currently out of the 60
member states 14 are African states, 14 are Asian States, 8 are Eastern
European States, 10 are Latin American and Caribbean States and 14
represent Western European and other States. The members are elected by
the General assembly for a term of six years and every three years the terms
of half of the members expires thus never leaving the member seats of the
commission empty. Membership does not require any additional financial
contribution, as UNCITRAL is a permanent commission of the General
Assembly and its secretariat is part of the United Nations Secretariat. The
UNCITRAL secretariat is not involved in the election of members of the
Commission.
3
General Assembly resolution 2205 (XXI), sect. II, para. 8
4
General Assembly resolution 3108 (XXVIII), para. 8
5
General Assembly resolution 57/20, para. 2. The expansion was effective from the
opening day of the thirty-seventh annual session of UNCITRAL, in 2004
Main Body
i) UNCITRAL Organisation
UNCITRAL’s work is performed at three different levels, namely, at first
level it is UNCITRAL itself referred to as the Commission, at the second
level is the intergovernmental working groups and at the third is the
secretariat.
a) UNCITRAL (The Commission)
The commission comprises of a chairperson, three vice-chairpersons and a
rapporteur who are elected by the member States at the beginning of each
annual session and serves until the beginning of the next annual session.
Besides the States member, other UN member States and international and
regional organisation are invited to attend the annual sessions and working
group sessions as observers. The annual sessions, help alternatively in New
York and Vienna includes work such as “finalization and adoption of draft
texts referred to the Commission by the working groups; consideration of
progress reports of the working groups on their respective projects; selection
of topics for future work or further research; reporting on technical
cooperation and assistance activities and coordination of work with other
international organizations; monitoring of developments in the CLOUT
system and the status and promotion of UNCITRAL legal texts; consideration
of General Assembly resolutions on the work of UNCITRAL; and
administrative matters.”6 All decisions of the Commission are reached to by
consensus. In 2010, the Commission formalised this practice, resolving that
decisions should be reached by consensus as far as possible; in the absence
of consensus, decisions are to be taken by voting in accordance with the
relevant rules of procedure of the General Assembly.7
6
A Guide to UNCITRAL, published by the UN, page 6 para 11.
7
Official Records of the General Assembly, Sixty-fifth session.
b) Working Groups
The working groups hold one or two sessions annually where the member
State delegations select a chairperson and rapporteur. The membership f the
working groups includes all the member States of the commission. A working
group works without the intervention of the Commission unless it asks for its
guidance on a topic. The secretariat is responsible for preparing working
papers for working group meetings, providing administrative services to that
working group and reporting on working group sessions. Reports are
considered and formally adopted at the end of each working group session for
submission to the annual session of UNCITRAL
c) Secretariat
To assist the work of UNCITRAL, the secretariat undertakes a variety of
different tasks, which includes preparation of studies, reports and draft texts
on topics that are being considered for possible future inclusion in the work
programme; legal research; drafting and revision of working papers and
legislative texts on topics already included in the work programme; reporting
on Commission and working group meetings; and providing a range of
administrative services to UNCITRAL and its working groups.8 The
secretariat also assists the Commission in its functions of coordinating the
work of other organizations; promoting the work of UNCITRAL within the
broader United Nations agenda promoting the uniform interpretation of legal
standards through the CLOUT system; and organizing special events.
ii) UNCITRAL Work
After considering a number of suggestions by member States, at its 1st session
in 1968, the Commission adopted nine subject areas as the basis of its work
programme: international sale of goods, international commercial arbitration,
transportation, insurance, international payments, intellectual property,
8
A Guide to UNCITRAL, published by the UN, page 9 para 23.
elimination of discrimination in laws affecting international trade, agency,

and legalization of documents.9 Other topics, such as trade financing
contracts, transport, electronic commerce, procurement, international
commercial conciliation, insolvency, security interests, online dispute
resolution and micro-finance have subsequently been added.
Various flexible and functional techniques have been adopted by UNCITRAL
to perform is task to modernize and harmonize the law regulating
international trade. These techniques fall under three categories:
a) Legislative Techniques
b) Contractual Techniques
c) Explanatory Techniques
a) Legislative Techniques
UNCITRAL has produced different types of legislative texts that
govern the transaction of trade between multinational parties and
provide for a framework that helps draft national laws related to
international trade:
• Conventions
• Model laws
A model law is a legislative text that is recommended to States for
enactment as part of their national law.
• Legislative guides and recommendations

• Model provisions
• Finalization and adoption of legislative texts
b) Contractual Techniques
9
Official Records of the General Assembly, Twenty-third Session.
UNCITRAL has provided for a standard or uniform clause or set of

clauses or rules to be referred to in case of any issues arising in
international law. This process of standardization has a number of
advantages. It can identify all of the issues that parties should address
in such clauses or rules, ensure that the clause is effective and not
ineffective or invalid and provide internationally recognized and up
to date solutions to specific issues. The UNCITRAL Arbitration Rules
(1976, revised in 2010) and the UNCITRAL Conciliation Rules
(1980) are examples of such internationally recognized uniform rules.
c) Explanatory Techniques
• Legal guides
In case of parties negotiating complex international contracts,
difficulties in negotiating and drafting might be experienced due to
lack of specific expertise, resources and reference materials. Parties
can be assisted by legal guide that discusses various issues underlying
the drafting of a particular type of contract. These legal guides may
also include sample contract clauses to illustrate particular solutions.
The first legal guide adopted by the Commission was the UNCITRAL
Legal Guide on Drawing up International Contracts for the
Construction of Industrial Works (1987). That was followed by the
UNCITRAL Legal Guide on International Countertrade Transactions
(1992) and, in 1996, the UNCITRAL Notes on Organizing Arbitral
Proceedings.
• Practice and other information guides

Many guides have been prepared by the commission to assist judges
and legal practitioners. The UNCITRAL Practice Guide on Cross
Border Insolvency Cooperation and The UNCITRAL Model Law on

Cross-Border Insolvency are examples such guides.
• Interpretative declarations
Declarations are other examples of explanatory texts to achieve a
uniform interpretation of a particular text or texts. The desirability of
that interpretation is dictated by widespread changes in commercial
practices, developments in technology, emerging divergence in
interpretation by the courts, or some other factor affecting the
application of the text. Such instruments are useful in the case of a
convention where amendment of text might result in technical
problems.
iii) Arbitration Rules

The UNCITRAL Arbitration Rules provide a comprehensive set of
procedural rules upon which parties may agree for the conduct of arbitral
proceedings arising out of their commercial relationship and are widely used
in ad hoc arbitrations as well as administered arbitrations. The Rules cover
all aspects of the arbitral process, providing a model arbitration clause, setting
out procedural rules regarding the appointment of arbitrators and the conduct
of arbitral proceedings, and establishing rules in relation to the form, effect
and interpretation of the award.
The UNCITRAL Arbitration Rules were initially adopted in 1976 and have
been used for the settlement of a broad range of disputes, including disputes
between private commercial parties where no arbitral institution is involved,
investor-State disputes, State-to-State disputes and commercial disputes
administered by arbitral institutions. In 2006, the Commission decided that
the UNCITRAL Arbitration Rules should be revised in order to meet changes
in arbitral practice over the last thirty years. The revision aimed at enhancing
the efficiency of arbitration under the Rules without altering the original
structure of the text, its spirit or drafting style.
The UNCITRAL Arbitration Rules (as revised in 2010) have been effective
since 15 August 2010. They include provisions dealing with, amongst others,
multiple-party arbitration and joinder, liability, and a procedure to object to
experts appointed by the arbitral tribunal. A number of innovative features
contained in the Rules aim to enhance procedural efficiency, including
revised procedures for the replacement of an arbitrator, the requirement for
reasonableness of costs, and a review mechanism regarding the costs of
arbitration. They also include more detailed provisions on interim measures.
With the adoption of the UNCITRAL Rules on Transparency in Treaty-based
Investor-State Arbitration (the "Rules on Transparency") in 2013, a new
article 1, paragraph 4 was added to the text of the Arbitration Rules (as revised
in 2010) to incorporate the Rules on Transparency for arbitration initiated
pursuant to an investment treaty concluded on or after 1 April 2014. The new
paragraph provides for utmost clarity in relation to the application of the
Rules on Transparency in investor-State arbitration initiated under the
UNCITRAL Arbitration Rules. In all other respects, the 2013 UNCITRAL
Arbitration Rules remain unchanged from the 2010 revised version.
iv) Incoterms
Incoterms are “standardized shipping terms defined by the International
Chamber of Commerce (ICC) that apportion the costs and liabilities of
international shipping between buyers and sellers.”(bld). They have been
incorporated in contracts for the sale of goods worldwide and provide rules
and guidance to importers, exporters, lawyers, transporters, insurers and
students of international trade. Incoterms were developed in 1936 first and
there after updated periodically according to the current trade practices. Thus
a contract should always specify which version of Incoterms are used. The
purpose of these commercial terms is to prevent confusion in foreign trade

contracts as they internationally recognise the obligations of buys and seller.
Trade terms used in different countries can have different meanings when
used domestically thus such internationally recognised terms are more
suitable.
There are currently Eleven Incoterms falling under two categories- firstly
RULES FOR ANY MODE OR MODES OF TRANSPORT and second
RULES FOR SEA AND INLAND WATERWAY TRANSPORT as defined
by the International Chambers of Commerce, namely:
a) RULES FOR ANY MODE OR MODES OF TRANSPORT
• (EXW) Ex Works: It means that the goods are delivered when they
are placed at the disposal of the buys at the seller’s premise or any
other named place.
• (FCA) Free Carrier: It means the goods are delivered to the carrier or
any other person nominated by the buyer at the seller’s premise or
other named place.
• (CPT) Carriage Paid to: It means the goods are delivered to the carrier
or other person nominated by the seller and the cost of carriage must
be contracted by the seller.
• (CIP) Carriage and Insurance Paid to: It means the goods are delivered
to the carrier or other person nominated by the seller and the cost of
carriage must be contracted by the seller. The seller in addition has to
also contract for insurance against the buyer’s risk of loss or damage
to goods during the carriage.
• (DAT) Delivered at Terminal: It means that the seller delivers when
the goods, once unloaded from the arriving means of transport, are
placed at the disposal of the buyer at a named terminal at the named
port or place of destination.
• (DAP) Delivered at Place: It means the delivery is done when the

goods are placed with the buyer on the arriving means of transport
ready for unloading at the named place.
• (DDP) Delivered Duty Paid: It means that the seller delivers the goods
when the goods are placed at the disposal of the buyer, cleared for
import on the arriving means of transport ready for unloading at the
named place of destination. The seller bears all the costs and risks
involved in bringing the goods to the place of destination and has an
obligation to clear the goods not only for export but also for import,
to pay any duty for both export and import and to carry out all customs
formalities.
b) RULES FOR SEA AND INLAND WATERWAY TRANSPORT

• (FAS) Free Alongside Ship: It means that the goods are delivered on
board the vessel nominated by the buyer or the buyer procures the
goods already so delivered.
• (CFR) Cost and Freight: It means that the seller delivers the goods on
board the vessel or procures the goods already so delivered. The risk
of loss of or damage to the goods passes when the goods are on board
the vessel. the seller must contract for and pay the costs and freight
necessary to bring the goods to the named port of destination.
• (CIF) Cost Insurance and Freight: In addition to the duty of the seller
according to CFR, CIF also imposes on the seller to contract for
insurance cover against the buyer’s risk of loss or damage to the good
during carriage.
Conclusion
Today across the globe, UNCITRAL is engaged in a lot of work while
managing the trade between nations. Some of them can be listed as:
• Coordinating the work of active organizations and encouraging

cooperation among them.
• Promoting wider participation in existing international conventions and
wider acceptance of existing model and uniform laws.
• Preparing or promoting the adoption of new international conventions,
model laws and uniform laws and promoting the codification and wider
acceptance of international trade terms, provisions, customs and practice,
in collaboration, where appropriate, with the organizations operating in
this field.
• Promoting ways and means of ensuring a uniform interpretation and
application of international conventions and uniform laws in the field of
the law of international trade.
• Collecting and disseminating information on national legislation and
modern legal developments, including case law, in the field of the law of
international trade.
• Establishing and maintaining a close collaboration with the UN
Conference on Trade and development.
• Maintaining liaison with other UN organs and specialized agencies
concerned with international trade.
Each country has its own set of laws governing how that country’s citizens
and businesses trade with people and businesses in countries all over the
world. Because international trade laws can vary so much from one country
to the next, private parties involved in international trade can find themselves
having to deal with a complex network of legal issues. A lack of
harmonization can make international trade difficult to carry out, which in
turn leads to a loss of business opportunities for individuals and businesses.
How does harmonization happen?

To help countries harmonize their international trade laws with one another,
UNCITRAL has a number of tools at its disposal. It can, for example, draft
model laws that provide a sort of framework or template upon which
individual countries can then model their own domestic laws. By providing
such model laws, UNCITRAL helps countries adapt laws that are more likely
to reflect global norms. UNCITRAL also publishes conventions, legal guides,
practice notes, and rules that also serve similar functions as model laws do.
IMPACT OF RERA ON INDIAN REAL ESTATE

INDUSTRY
Amritha Bhaskar*
I. INTRODUCTION:
India’s population has been raising demand for residential and commercial
spaces and this turned out black heaven for builders to cheat, exploit the
innocent home buyers by diverting funds to other ventures or personal use.
Increasing number of scams and fraudulent activities led to the want of a
regulatory authority in the country. There were conditions to which our
economy was going through where the common factor of taking the money
from home buyers and diverting it for other invalid reasons remain the same
throughout. This is the major reason for delaying projects and elevating
financial burden on the shoulders of home buyers. There are a number of
cases filed and subjudice before criminal courts, civil courts, consumer
forums against builders and waiting for justice to be done.
Real Estate (Regulation and Development) Act 2016 was enacted by
Government of India on 26th March 2016. The act with its conclusive
provisions came into effect, from May 1, 2017. It is the central act and under
this act state governments need to make rules and set up authority to give
effect to the provisions laid down in the act. Two important factors that were
responsible for central government to enforce RERA were:
1. To seek the transparency in project making and its execution and
2. To bestow much needed security to innocent home buyers against the
shark lobby of builders

3. To establish an adjudicating mechanism for speedy dispute redressal
and to establish the Appellate Tribunal.
Indian real estate customers just had very few legal options that being
consumer protection was offered to them under various acts such as: The
Indian Contract Act, 1872; The Consumer Protection Act, 1986. Indian
consumers had to approach various authorities such as, Consumer Courts and
Civil courts, to get their grievances addressed. Before the passage of the act,
no single regulatory authority existed for regulation of real estate sector and
buyers were facing problems like timely delivery of projects, possession not
being handed over by the developer, high rate of interest being charged on
late payments, multiple bookings for the same property, mis-selling of
projects etc. These were some of the very own reasons for RERA to play a
very important role in today's Real Estate Industry.
II. APPLICABILITY AND REGISTRATION:
This Act applies to commercial Real Estate projects including shops, offices,
residential apartments, plotted developments and also ongoing projects in
respect of which completion certificate have not been issued. It is mandatory
for any project to be registered under RERA. Section 3 of the Act deals with
information and documents to be furnished by the promoter for registration
of the project. It clearly states that no project can advertise, promote, booked
or sell without any prior registration or obtaining necessary approvals. Any
project that is more than 500sq meters or more than 8 apartments has to be
registered. If a project is not registered, it should be registered within 3
months from the commencement of the Act and each phase of a project has
to be separately registered. Section 4 lies down, that the promoter shall make
an online application to the authority in an online portal operationalised by
them and submit the required documents within a period of one year from the
date of commencement. Section 5 of the act approves or rejects the
registration within 30 days of the application if there is a failure of intimation
then it is considered to be registered. This registration will be valid until the
completion of the project or may also be extended upto 1 year on very limited
grounds and with a prescribed fee. After this due processes a promoter gets a
registration number login ID and a password for them to publicize their

property details. Under Section 7 registration can be revoked because of
various instances such as:
1. Suo moto
2. Defaulting the rules of the act
3. If the promoter is indulging in and unfair and fraudulent activities
Revocation cannot take place unless a notice in writing is given to the

promoter with the grounds of refusal. In order for the project to be advertised,
sold there should be an agent through which it can be done and u/s 9 of the
Act it is compulsory for an agent to register themselves failing which would
not let them promote or advertise or sell the project.
III. OBLIGATION AND DUTIES OF PROMOTER:
Promoter’s first and the most basic function or a duty under Section 11 of the
Act is publishing the details of the project. Give the details of the registration
granted by the authority. Update quarterly about the number of plots or
apartments being booked. The promoter at the time of booking must issue
allottee a letter that consists of sanctioned plans, layout plans along with
specifications approved by the competent authority. Alongside, mention civil
infrastructure like sanitation, water and electricity. The promoters are
responsible for all obligations and functions and responsibilities under the
provision as well as the rules and regulations according to the agreement of
sale. Provide and maintaining essential services offered should be delivered
like executing a conveyance deed of the said project, pay all outgoing until
the plot or apartment is transferred to the allottee.
The promoters under Section 12 of the act clearly deal with the obligation of
a promoter regarding fidelity of advertisement and prospectus. It is an
obligation for a promoter to publish the right information about the project, if
the buyers buy an apartment or a plot for which the payment is done based on
the information that has been furnished in the prospectus and if the promoter
fails to keep up the same, if the affected buyer wants to withdraw the purchase
the promoter is liable to return the amount paid along with an interest or to be
compensated in the manner provided in the Act. More importantly, a deposit
or an advance cannot be taken without the buyer and seller constituting an
agreement of sale u/s 13 of the Act. Only 10% of the cost can be received and
the application fee before the said agreement. Similarly, adherence to the
sanction plan and project specification by the promoter u/s 14 is one of
another obligation of a promoter which says that the project shall be
developed and completed by the promoter as per the sanctioned plan and no
addition or alterations can be made apart from that of the plan approved. Even
if any kind of changes has to be made, then it should be intimidated to the
allottees after which the changes can be made. One of the primaries of a
promoter is, when there is any kind of structural defect, within a period of 5
years from the date of handling the plot or apartment it should be notified by
the allottee to the promoter in order to take quick actions and rectify the same
within 30 days after the intimation. In the result of failure of rectification an
allottee should be appropriately compensated. Among many other obligations
the last important obligation under Section 15 of the Act, it states that the
promoter cannot transfer a case to a third party without prior written consent
from two-thirds of the allottee and prior written approval from the authority.
These are certain obligations that a promoter/ developer should abide to.
IV. RIGHTS AND DUTIES OF ALLOTTEES:
Allottees under Section 19 are entitled to certain rights and duties one should
follow under RERA Act, 2016.The allottees have the right to have all
information regarding the sanctioned plan, layout plans along with the
specifications approved by the competent authority and other information
regarding the agreement to sale. Stage- wise time schedule of completion of
project, about the progress and all the information about sanitation, electricity
etc as agreed in the agreement between the allottee and the promoter. Claim
the possession of the apartment, or plot, claim a refund for the amount paid
along with interest at such a rate prescribed in the provisions of the Act. After
the physical possession is given to the allottee, he/she is entitled to the
necessary documents of the concerned project. On the other hand, every
allottee that has entered into the agreement u/s 13 is his duty to and has the
responsibility to make necessary payments in the specified time. Even the
registration charges, municipal taxes, water and electricity charges and other
maintenance should be timely paid. If there is any delay in payments the
allottee should make the payment with interest prescribed in the provision.
Another duty of an allottee is formation of an association of society or co-
operative society or federation of the same. Within a period of 2 months after
the occupancy certificate is given, physical possession needs to be taken of
the said project or plot. Lastly, an allottee has to participate in registration of
conveyance deed of the building, plot or apartment u/s 17(1) of the act. These
are certain set of rights and duties that an allottee is entitled to.
V. IMPORTANT PENALTIES AND COMPENSATION:
1. If a promoter violating or not complying to any orders or direction given

by under sub-section (1) then, or continuing to violate section 3 then, Section
59 states that he shall be liable for imprisonment for a term which may extend
upto 3 years or with fine upto 10% of the cost estimated of the project.
2. Section 60, speaks that if a promoter falsely furnishes information and

contravenes the provision of sec 4 then the penalty is 5% of the estimated cost
of the project as determined by the authority. If any other provision is violated
u/s 3 and 4 the same penalty is applied u/s 61 and if the authority’s order or
direction has been contravened the same shall apply under Section 63.
3. Is a promoter contravenes section 9 or 10 that is non-registration then the

penalty is rupees 10,000 everyday and if such default continues, additive 5%
of the estimated cost will be applied under Section 62 of the Act.
4. When a promoter fails to comply with the order of the Appellate Tribunal
he is punishable upto 1 year and if the default continues then 10% of the
estimated cost of project under Section 66 of the Act.
5. Section 67 and 68 of the Act deals with an allottee failing to comply or

contravenes with orders and direction of the authority then he shall be liable
to penalty upto 5% of the cost of the project as determined by the authority
and if an allottee fails to comply with the orders or direction of the appellate
tribunal, the penalty is imprisonment that extends to 1 year and fine everyday
and if the default continues then it would extend to 10% of the cost estimated
of the project, respectively. Therefore, these are the penalties and
compensation that both developer/promoter and the allottees are entitled and
liable to.
VI. CONCLUSION:
In order to curb fraudulent activities in the area of Real Estate, there lacked
stringent laws before 2016. After the enactment of Real Estate Regulatory
Authority Act, 2016 there has been a lot of dynamic changes which has
brought in a lot of profitability and impacted on the Real Estate developers as
well as the buyer. An investment in projects that has no authority was of high
risk by paying a lump sum amount. The Real Estate sector must have rules
and regulations for each buyer as well as a project by a developer in order to
keep track of the ongoing projects, transaction between the buyer and the
seller. The main objective of this act was to protect both buyers and well as
the promoter and it has successfully met its expectations over the past few
years after its existence and has got legal support for all the mismanagement
and unfair practices from the Government. Lastly, to conclude, RERA has
brought in standardization in Real Estate and it has refined and efficient
implementation has taken place across the country which has promoted more
equitable and fair transaction between buyer and the developer because of the
transparency that has been catered.
DATE RAPE DRUGS- A CHALLENGE AND SUBSTANCE

ABUSE FACED BY YOUTHS IN INDIA
Rajdeep Nath* & Kakoli Nath**
1. INTRODUCTION-
1.1 Youths nowadays are most vulnerable to crimes and date rape is very
common in youths and is mostly prevalent in college campuses, pubs and
nightclubs. Date rape is an acquaintance rape and date rape drugs render a
person vulnerable to sexual assault and rape essentially by way of spiking a
target’s drink with a sedative drug usually Ketamine, Rohypnol and
Methamphetamine and wait for them to become affected. These drugs should
be banned in India as only certain restrictions have been imposed on their
export and abuse of these drugs have became very common in today’s era.
The regulations on the manufacture and supply of these drugs should be made
more stringent under the Narcotics Drugs and Psychotropic Substances Act
(NDPS Act) and new laws to be introduced on date rape.
1.1.1 Drug abuse is a serious problem. NDPS Act is an act which aims at
punishing the drug peddlers & fighting drug abuse.1 The punishments under
NDPS Act shall be amended and the drug peddlers easily get bail yet it is said
that this is a non- bailable offense under this Act. The Act should mandate the
law for all medical stores that each medical store should be
provided with limited number of pills of these drugs under surveillance with
monthly checking and the bill given to the buyer shall be linked with the
aadhar card of the buyer with the permission of FDA.
*Student, ICAI
**ITM University, Raipur
1
Jeyel, “Offences Under The NDPS Act”, LawTeacher, Available at:
https://www.lawteacher.net/free-law-essays/commercial-law/offences-under-the-ndps-act-
commercial-law-essay.php, retrieved on: 20th October, 2017 at 11:36 A.M
1.1.2 FDA2 in India aims to ensure that food and medical products like drugs
usually Ketamine, Rohypnol etc. exported from India are safe.3
1.1.3 The test is all about, the imposition of ban on date rape drugs though
having medical uses and the punishments under NDPS Act to be amended
with inclusion of new laws under this Act and also the difficulty in proving
the character of date rape drug – a mutual consent or exploitation.
The methodology of the research is empirical and the nature of the study is
evolutive with the scope of the study is to get firsthand knowledge about date
& date rape drugs from chemists and youths in India. The laws under NDPS
Act to be made more stringent with amendments in the punishments and new
laws to be introduced on date rape drugs to prevent illicit trade of date rape
drugs.
1.2 DEFINING DATE RAPE DRUGS-

1.2.1 Date rape drugs are drugs that are sometimes used to assist as sexual
assault. Date rape drugs are used to spike the drinks of male or female
specially females. Sexual assault is any type of activity that a person does not
agree to. Date rape drugs are used to commit date rape.4
Date rape drugs are also called club drugs because they tend to be used at
dance clubs, concerts and raves. These drugs are also used to help people
commit other crimes like robbery and physical assault. The term date rape
can also be misleading because the person who commits the crime might not
be dating the victim so, it is also known as acquaintance rape.
2
FDA stands for Food and Drug Administration.
3
Debroy Sumitra, “Govt. makes notorious ‘date rape’ drug Ketamine harder to buy or sell”,
Available at: URL: https://timesofindia.indiatimes.com/india/Govt-makes-notorious-date-
rape-drug-ketamine-harder-to-buy-or%20%20sell/articleshow/28116453.cms?from=mdr,
retrieved on: 20th October, 2017 at 11:50 A.M
4
“Date Rape Drug- List and Side Effects”, Medicinenet, Inc, Available from: URL:
https://www.medicinenet.com, retrieved on: 17th October, 2017 at 10:50 A.M
1.2.2 Ketamine is a substance which is not banned in India and so, drug
traffickers are increasingly resorting to this drug. NDPS Act is considered to
be a stringent act that can send as drug trafficker for 10 years in jail but yet
drug peddlers easily get bail.
1.3 DATE RAPE DRUGS- MEANING AND ITS ADVERSE EFFECTS
1.3.1 The three most common date rape drugs are:-
1. Rohypnol- Rohypnol is as pill and dissolves in liquids. New pills turn
blue when dissolved in water while old pills are colorless and yet used
by offenders. This date rape drug can cause lots of problems to the
victim such as the victim will not remember what happened while
drugged and it lowers blood pressure, causes sleepiness, muscle
relaxation or loss of muscle control, drunk feeling, nausea, confusion
or dizziness etc.
2. Ketamine- Ketamine is a dissociative anesthetic, it is a medication

mainly used for starting and maintaining anesthesia. It induces a
trance- like state and even doctors tend to prefer it less. Nausea,
dizziness, hypertension, memory problems etc. are some of its side-
effects and so, this drug is mostly used in committing offense.
Ketamine is not a banned drug and restrictions have been placed only
on its export.
3. GHB- Gamma hydroxybutyric acid is a liquid with no odor or color,

white powder, and pill. GHB can cause problems like relaxation,
drowsiness, dizziness, nausea, unconsciousness and a slow heart rate.5
5
“Drug education- Date rape drug”, Available from: URL:
http://sgforums.com/forums/2516/topics/219634, retrieved on: 17th October, 2017 at 10:56
A.M
1.3.2 Ketamine is the only date rape drug that has been restricted for export.
An exporter of Ketamine requires a license for its export whereas there are
no such restrictions imposed on other date rape drugs usually Rohypnol,
Methamphetamine. Ketamine is banned in other countries but not in India so
certain restrictions have been imposed in the export of Ketamine.
According to drug enforcement agencies, ketamine costs around Rs. 30000-
35000/kg & more and drug traffickers sell the same substance at Rs. 8- to 10
lakhs/kg & more. Even the restrictions imposed in its export are not that
stringent and no such restrictions have been imposed on its import, thus
making it easy for the drug peddlers to easily get involved in its illicit
trafficking.6
1.3.3 These three are the most commonly used date rape drugs that are used
to spike the drinks that are unattended on various occasions resulting in date
rape or sexual assault against women in India and these drugs are made easily
available to the offenders causing a great amount of threat to our youths and
the substance abuse in increasing at a rapid rate year by year with no stringent
laws on date rape. Even IPC classifies rape under Section 376 but date rape
finds no place under this Act. The disheartening date rape incident mostly
takes place at nightclubs, pubs etc.
1.4 According to Table No. 1, a survey has been conducted and the
results are as follows-
6
Kaul Aditya, “India high on export of date rape drug”, Available on: URL:
http://www.dnaindia.com/india/report-india-high-on-export-of-date-rape-drug-1281612,
retrieved on: 20th October, 2017 at 11:11 A.M
1. Awareness about date rape and

date rape drugs.
a. Yes 82%
b. No 18%
2. Nature of date rape.

a. Mutual consent
0
b. Exploitation
24%
c. Rape
42%
d. Sexual assault
56%
3. People most vulnerable to date

rape. 4%
a. Male 70%
b. Female 42%
c. Youth 2%
d. Senior citizen
4. Ketamine, a date rape drug be

banned in India, though having
medical usage. 38%
a. Yes 24%
b. No 38%
c. Partly
5. Only limited medical stores

should sell these drugs, but only
for medical usage with
permission of FDA.
a. Yes 94%
b. No 6%
6. Aadhar cards be linked with the

bill given to a buyer for
purchase of date rape drug.
a. Yes
b. No 82%
18%
7. The capital punishment given to
the addicted youths under
NDPS Act be omitted.
a. Yes
b. No
34%
66%
If No, then
a. As the youths addicted to date
rape drugs are equally guilty as
drug peddlers 42%
b. Because the law abides to the
nature of the offense
26%
8. Alcohol as a date rape drug.
a. Yes
b. No
56%
If Yes, then
44%
a. Because over drinking of
alcohol causes dizziness that
others might take advantage of

that person.
b. As a consequence, it becomes 56%
difficult to prove the offense of
the offender
9. The punishments under 14%
Narcotics Drugs and

Psychotropic Substances Act be
amended.
a. Yes
b. No
88%
If Yes, then 12%
a. Because the drug peddlers
easily get bail
b. The punishments are not very
stringent. 44%
10. The restrictions should be 54%
imposed in the imports of date

rape drugs like Ketamine,
Rohypnol and
methamphetamine.
a. Yes
b. No
84%
16%
TABLE NO. 1
1.5 DISCUSSION-
1.5.1 The view about how many people is aware about date rape and date rape
drug is 82% is aware about it and 18% is not aware about it.
1.5.2 The view about what is the nature of date rape is 0% of people supported
mutual consent 24% supported exploitation 42% supported rape and 56%
supported sexual assault.
1.5.3 The view about which group of persons are most vulnerable to date rape
are 4% supported male 70% supported female 42% supported youth and only
2% supported senior citizen.
1.5.4 The view about whether ketamine be banned in India, though having
medical usage is 38% supported its ban and chose yes whereas 24% supported
no and 38% supported that it should be banned partly.
1.5.5 The view about whether only limited medical stores should sell these
drugs, but only for medical use with the permission of FDA is 94% supported
yes and only 6% supported no.
1.5.6 The view about whether Aadhar cards be linked with the bill given to
the buyer for purchase of date rape drug is 82% supported yes and only 18%
supported no.
1.5.7 The view about whether the capital punishment given to the addicted
youths under the NDPS Act be omitted is only 34% people supported yes
whereas 66% supported no. If no, then 42% supported that the addicted
youths are equally guilty as drug peddlers whereas 26% supported that the
law abides to the nature of the offence.
1.5.8 The view about whether alcohol can be termed as a date rape drug is
56% supported yes and 44% supported no. If yes then 56% supported that
over drinking of alcohol causes dizziness that others might take advantage
whereas 14% supported that it becomes difficult to prove the offence of the
offender.
1.5.9 The view about whether the punishments given under the NDPS Act be
amended is 88% supported yes and 12% supported no. If yes, then 44%
supported that the drug peddlers easily gets bail and 54% supported that the
punishments are not very stringent.
1.5.10 The view about whether the restrictions should be imposed on the
imports of date rape drugs usually ketamine, rohypnol and methamphetamine
is 84% supported yes and 16% supported no.
1.6 RESULT-
FIGURE 1.6.1
Percentage
82%
70%
56%
42% 42%
24%
18%
4% 2%
0
ss e
s
cit uth
No
Ex l con ape
lt
ni Y ale
ita t
ua R on
s
Fe ale
ns
M e
lo sen
ug
Ye
l a ap
p
au
ize
ra
ti
m
dr
or o
r
ua te
te
pe
ut a
da
M of d
p
ra
o
ex
e
et
Se
at
re
bl
td
tu
ra
Na
ou
ne
ab
2.
ul
tv
s
es
os
en
m
ar
le
Aw
op
Pe
1.
3.
In Figure 1.6.1 82% people are aware about date rape & date rape drugs as
compared to 18% people who are not aware about date rape & date rape
drugs. Date rape is a new concept and there are no laws framed for this
acquaintance rape which is a major reason of its unawareness. 0% or none of
the people thinks that mutual consent is a nature of date rape as compared to
24% people who thinks that nature of date rape is exploitation whereas 42%
people thinks that rape is the nature of date rape & 56% people thinks that
nature of date rape is sexual assault. Only 4% people thinks that male is most
vulnerable to date rape as compared to 70% of people thinks that female is
most vulnerable to date rape & 42% people thinks that youths are most
vulnerable to date rape whereas only 2% people believes that senior citizens
are most vulnerable to date rape. Date rape is mostly prevalent in pubs &
nightclubs and therefore, female & youths are most vulnerable to date rape.
FIGURE 1.6.2
PERCENTAGE
Aadhar card to be linked with bill given

to buyer on purchase of date rape drug.
yes 82%
No 18%
Only limited medical stores should sell

these drugs but for medical purpose
with permission of FDA
Yes 94%
No 6%
Ketamine a date rape drug be banned

in India, though having medical usage
yes 38%
No 24%
partly 38%
In Figure 1.6.2 82% people believes that Aadhar cards should be linked with
bill given to buyer on purchase of date rape drug as compared to 18% who
believes that Aadhar card should not be linked with the bill given to a buyer
on purchase of date rape drug. Linking of Aadhar cards with the bill will be
the most protective measure against the misuse of these drugs after
purchasing it from medical stores by the buyers. 94% people thinks that only
limited medical stores should sell date rape drugs but for medical purpose
only with the permission of FDA whereas only 6% people thinks that these
drugs should not be sold by limited medical stores with the permission of
FDA. 38% people supports both that Ketamine should be banned in India,
though having medical usage & Ketamine should be banned partly whereas
only 24% people thinks that Ketamine should not be banned in India, as it has
medical usage.
FIGURE 1.6.3
PERCENTAGE
Capital punishment given to the…
youths under NDPS Act be omitted.
yes 34%
no 66%
If No? Why
a.Youths are equally guilty as drug… 42%
b. As the law abide to the nature of… 26%
Alcohol as a date rape drug
yes 56%
no 44%
If Yes, then Why?
a. Because over drinking causes dizziness 56%
b. It's difficult to prove the offence of… 14%
In Figure 1.6.3 34% people believes that capital punishment given to the
addicted youths under NDPS Act be omitted whereas 66% people thinks that
capital punishment given to the addicted youths under NDPS Act should not
be omitted as 42% people believes that youths are equally guilty as drug
peddlers as compared to 26% who believes that it is law which abides to the
nature of the offence. Capital punishment is the most severe & popular
punishment after death penalty which is given to the addicted youths. 56% of
people think that alcohol can be termed as a date rape drug as 56% people
believes that over drinking of alcohol causes dizziness that others might take
advantage as compared to 14% who believes that it becomes difficult to prove
the offence of the offender whereas 44% people thinks that alcohol cannot be
termed as a date rape drug.
FIGURE 1.6.4
PERCENTAGE
Punishments under NDPS Act be

amended
yes 88%
no 12%
If Yes, then
a. Because the drug peddlers easily get 44%

bail
b.The punishments are not very 54%
stringent.
Restrictions in the import of date rape

drugs
yes 84%
no 16%
In Figure 1.6.4 88% people thinks that punishments given under the NDPS
Act be amended as 44% people believes that the drug peddlers easily gets bail
despite the punishments given under this Act being non- bailable as compared
to 54% people who believes that the punishments under this Act is not very
stringent whereas only 12% people thinks that punishments under the NDPS
Act should not be amended. 84% people think that the restrictions should be
imposed on the imports of date rape drugs whereas only 16% people think
that restrictions should not be imposed on the imports of date rape drugs.
There are restrictions imposed only on the exports of these drugs and not on
its import.
1.7 CONCLUSION/ SUGGESTION-

Date rape is a new concept and there are no specific laws framed on date rape.
Date rape drugs are used to spike the drinks of male or female. Date rape
drugs are used to commit date rape. Date rape are mostly prevalent in
nightclubs, pubs etc. It is a most grievous challenge faced by youths in India
and most of the youths and many other people are yet unaware about date
rape and are confused about its nature. Sexual assault is an ingredient of date
rape. Youths are most vulnerable to date rape after females specially. Even
alcohol can be termed as a date rape drug. Ketamine should not be banned
completely as it is used for medical purpose also and restrictions should be
imposed on the imports of date rape drugs. Linking of Aadhar cards with the
bill will be the most protective measure against the misuse of these drugs after
purchasing it from medical stores by the buyers with only limited medical
stores selling these drugs with the permission of FDA for medical use. Capital
punishment to the addicted youths be omitted from NDPS Act and
punishments under this Act needs to be amended. The laws under the NDPS
Act should be made more stringent with punishments and new laws to be
introduced on date rape.
A REVIEW OF:
POLITICS OF THE UNITED NATIONS ON THE IRAQI
INVASION OF KUWAIT VIS-À-VIS THE CRIMEAN
OCCUPATION BY RUSSIA
Shivanshu Bhardwaj*
INSURGENCY IN KUWAIT –
BACKGROUND:
After World War – I, the Arab world split into two spheres of influence
between England and France, vide the Sykes-Picot agreement.1 The covenant
was given formal status by the League of Nations when the provinces of Basra
and Baghdad came under British contol. 2 Then, in 1922, Sir Percy Cox
(Britain's steward in the Gulf) decided to draw a line in the sand, creating
modern Iraq.3 He made Iraq to incorporate, inter-alia, provinces of Basra and
Baghdad.4 The same move shaped the kingdom of Saudi Arabia, and the
empire of Kuwait.5 The arrangement favoured the free status of the al-Sabah
family (of Kuwait) and deprived Iraq of its hitherto convenient access to the
Gulf, ignoring the traditional understanding of Iraq's extension to the Gulf.6
There were talks of Kuwait having allegiance towards Iraq from the very
beginning, in 1938, the parliament of Kuwait agreed to vote on the re-union
with Iraq. The al-Sabah family acting against the same immediately dissolved
the parliament.7
A sense of Arab nationalism began to grow in the post World War – II and
the same was certified by the nationalist revolution of Iraq in 1958.8 Then in
*Associate, Cyril Amarchand Mangaldas

1
JAMES BARR, LINE IN THE SAND, 105(2012).
2
Id. at 112.
3
RACHELLE MARSHALL, THE KURDS' SUFFERING IS ROOTED IN PAST BETRAYALS, 8ff
(1991, VOL. X).
4
Id.
5
MICHAEL S. CASEY, THE HISTORY OF KUWAIT, P.56 (2ND ed. 2007).
6
RICHARD H. JACOB, CHRONOLOGY OF THE GULF WAR, 144 (1999).
7
MICHAEL S. CASEY, THE HISTORY OF KUWAIT, 86 (2st ed. 2007).
8
JUAN ROMERO, THE IRAQI REVOLUTION OF 1958: A REVOLUTIONARY QUEST FOR UNITY
AND SECURITY, 21 (1st ed.2011).
1961 Kuwait became formally independent from England, and the popular
Abdul-al-Karim-Qassim renewed Iraq's claim over Kuwait, the British
immediately sent its forces to Kuwait.9 After Qassim's death Iraq ended its
boycott of the Arab League and recognized Kuwait’s independence in 1963.10
Then the United States started to replace England and France as an outside
power acting in the Gulf.11 US’s strategy was the same as that of England's
and France's, i.e. to keep the political families and sheikdoms strong enough
to fight with each other, but not letting them become capable to stabilize the
gulf or to become a unifying force in the region, then the US could keep
control of the oil in the area, a concern arose when Iran (which is a Persian
and not an Arab country) nationalized its oil companies in 1951.12 The
American response to this was to destabilise the elected government of
Mohammad Mosaddegh, and to replace it with a dictatorship of Mohammad
Reza Shah Pahlavi.13
Another turn came when the Shia Muslims overthrew the American
supported Shah Pahalvi in 1979.14 The US now needed a strong force to
control the situation in Iran, and to achieve this it supported Saddam Hussein
in his eight-year war against Iran.15
During the above mentioned war, the al-Sabah family gave 17 billion dollar
aid to Iraq.16 Kuwait saw Iran’s revolution as a threat and so funded the
conflict.17After the war, Hussein was isolated, both politically and
9
Id. at 149.
10
11
KAREN DABROWSKA & GEOFF HANN, IRAQ THEN AND NOW: A GUIDE TO THE COUNTRY
AND ITS PEOPLE, 21 (1st ed. 2006).
12
ABBAS ALNASRAWI, ARAB NATIONALISM: OIL, AND THE POLITICAL ECONOMY OF
DEPENDENCY, 73 (1st ed. 1991).
13
Id.
14
15
Id. at 83.
16
Id. at 120.
17
Id.
economically, and Iraq was some 60 billion dollars in debt and the west had
cut off its credits, allegedly after he had a British reporter executed as a
spy.18 Another major concern of the west was also concerned that its overall
strategy (as discussed above) would be upset, since Iraq now had an army
second largest army in the middle east, next only to that of Israel.19
The al-Sabah family then declared that the 17 billion dollar that it had given
to Iraq was not a gift but a loan which has to be repaid.20 It is pertinent to note
here that Hussein had threatened to use force against Kuwait about a year
before the August 2nd invasion, at OPEC and Arab League meetings.21
Hussein then began to organize his troops along the border of Kuwait.22
THE INVASION:
The invasion was a result of a major conflict between the Ba-athist Iraq and
the state of Kuwait, which resulted in the occupation of Kuwait by Iraq for
almost seven months, this subsequently led to direct military intervention and
kindling of around 600 oil wells of Kuwait.23
Within a couple of days of intense combat, most of the forces of Kuwait were
either overrun by the forces of Iraq or escaped to the neighboring
regions.24Then within a few days it was announced by Iraq that Kuwait was
its 19th province.25
After a decisive victory, the exiled ruling family of Kuwait tried to build up
global pressure, the U.N Security Council, as a result of the same passed 12
resolutions wanting an immediate withdrawal of forces, but the same was not
18
19
Supra at 12.
20
21
22
Id. at 348.
23
24
25
N. JAYAPALAN, MODERN ASIA SINCE 1900, 130 (1st ed. 1999).
complied with.26 The invasion was also condemned by major world powers.27
NATO and UN forces were in particularly very critical of this and issued
ultimatums to the same effect.28
GLOBAL VIEW:
On 2nd August Iraq had occupied Kuwait,29 on the same day Security Council
adopted its resolution 660 of 1990,30 this demanded immediate and
unconditional pulling out of Iraq’s forces. Till 29th November 1990, 12
resolutions were adopted by the council which culminated to resolution 668
of 1990.31 The last resolution (i.e. resolution 678) said that if Iraq did not
implemented the resolutions by 15th January 1991 then the member states of
the UN, cooperating with Kuwait’s government, will be authorized to use all
necessary means to replenish international peace and security.32
When the compliance of the deadline was not done then on 16th January 1991
the armed forces of the States, cooperating with the government of Kuwait,
started air attacks against Iraq, this was followed by a ground aggression on
24 February.33 These operations were suspended on the midnight of 28th
February 1991, by this time all Iraqi armed forces had vacated the territory of
Kuwait.34 On 3 April 1991, the Council adopted its resolution 687 of 1991,
setting comprehensive conditions to end the conflict and establish the
machinery to ensure implementation of the same.35
26
27
Id. at 90.
28
Id. at 92.
29
Supra at 27.
30
31
32
33
34
Id.
35
Id. at 93.
LEGITIMACY OF THE ACT OF IRAQ AND THE STEPS OF UN:

It was when PGFK consented to annexation with Iraq, that Iraq thought of a
permanent occupation of Kuwait, they then raised their pre-colonial claim
over Kuwait.36The historical basis for this argument is weak, however, it
cannot be dismissed out of hand.37
Iraq tried to take advantage of the un-ratified Anglo-Ottoman Convention of
1913 described Kuwait as an autonomous kaza of the Ottoman Empire, a
recent study has concluded that in all but name Ottoman influence over
Kuwait in 1913 barely existed.38 Any claims that Turkey might have had to
Kuwait ended with its defeat in the First World War, prior to coming
existence of Iraq as a State and were formally renounced in the Treaty of
Lausanne in 192339, by which time Britain had already recognized Kuwait as
an independent State under the protection of Britain. Kuwait was recognised
as a separate State was confirmed on a number of subsequent occasions,
firstly by the British authorities administering Iraq under the League of
Nations Mandate40 and then, on the eve of termination of the Mandate in
1932, by the Prime Minister of Iraq, who also recognized the existing
boundary between Iraq and Kuwait.41 This shows that irrespective of the
historical position, however, developments since 1961 compel the rejection
of the Iraqi claim, major reason for the same was the Iraqi PM’s stand.42
Few days after the invasion, the United States, along with other countries,
deployed armed forces in the Gulf. Initially, these forces were intended to
36
AND SECURITY, 106 (1st ed.2011)..
37
Christopher Greenwood, New World Order or Old? The Invasion of Kuwait and the Rule
of Law, THE MODERN LAW REVIEW, 156 (Vol. 55 1990).
38
Dr. Md. Aminuzzaman, Iraq - Kuwait Crisis, INTERNATIONAL JOURNAL OF
SCIENTIFIC ENGINEERING AND RESEARCH, 41 (Vol. 3 2014).
39
Id.
40
Id. at 42.
41
Id. at 45.
42
Supra at 38.
prevent Iraq from attacking other Gulf States, however, it soon became clear
that the United States and most of the other States which had sent forces to
the Gulf were prepared to use those forces to expel Iraqi forces from Kuwait
and restore order.43 Till the end of November 1990, when use of force was
authorized by the Security Council against Iraq, these States had no mandate
for the same.44 Although Resolution 678 eventually gave them such a
mandate, both the United States and British Governments consistently argued
that there was no legal necessity for them to seek a resolution of the Security
Council before resorting to force.45 It was maintained that the use of force
against Iraq would be a lawful exercise of the right of collective self-
defense.46
Although UK and US managed to justify themselves by giving certain
arguments,47 but following international law principles, it should have first
sort to take the view and assistance of the Security Council, as then there
could have been a possibility of reaching an amicable solution.48
Another prospect which is worth consideration is the probable US abuse of
UN during the above mentioned conflict.49 Article 46 of the UN Charter states
that Plans for the application of armed force shall be initiated by the Security
Council with the assistance of the Military Staff Committee. How and under
whose direction and control will the Military Staff Committee initiate military
action, i.e. the minimum use of force to implement the UN resolutions50 This
43
44
45
Id.
46
Id.
47
Christopher Greenwood, New World Order or Old? The Invasion of Kuwait and the Rule
of Law, THE MODERN LAW REVIEW, 165 (Vol. 55 1990).
48
Id. at 164.
49
Nasir Khan, US abuse of UN in the Gulf War, ECONOMIC AND POLITICAL
WEEKLY, 2277 (1994).
50
Id. at 2281.
is made explicitly clear under Article 47(3) which says that the military staff
committee shall be responsible under the Security Council for the strategic
direction of any armed forces placed at the disposal of the Security Council.
CRIMEAN OCCUPATION:
BACKGROUND:
The Crimean peninsula has always been a pro-Russia part of Ukraine,
separated from the rest of the country geographically, historically and
politically.51 It also home to Russia's Black Sea Fleet.52 Crimea went to
Ukraine when in 1954 Soviet leader Nikita Khrushchev gave the peninsula to
his native land.53 This separation was not of much importance until the Soviet
Union broke up in 1991 and Crimea ended up with the independent Ukraine.54
Even after the separation nearly 60 percent of Crimean population of 2
million identified themselves as Russians, it is because of this that since the
collapse of the Soviet Union in 1991, there have been frequent tussles
between over its status between Moscow and Kiev, 55it is pertinent to mention
here that Russia's Black Sea base in Sevastopol gives Moscow access to the
Mediterranean. Although the territory of Crimea lies in Ukraine, Russia
stations part of its Black Sea fleet in Sevastopol as part of a pre-existing
agreement between the two countries.56
‘INVASION’ AND ACTION TAKEN BY THE UNITED NATIONS:
The facts as they stand are that on February 21, President Viktor Yanukovych
accepted a three-party memorandum that would keep him in office until the
end of the year, however, within 24 hours the agreement was broken by the
51
MARIA DROHOBYCKY, CRIMEA: DYNAMICS, CHALLENGES AND PROSPECTS, 74 (1st ed.
1995).
52
Id. at 35.
53
Id. at 5.
54
KAROL KUJAWA, 2014 CRISIS IN UKRAINE. PERSPECTIVES, REFLECTIONS,
INTERNATIONAL REVERBERATIONS, 13 (2015).
55
MARIA DROHOBYCKY, CRIMEA: DYNAMICS, CHALLENGES AND PROSPECTS, 92 (1st ed.
1995).
56
Supra at 52.
Maidan activists and the Yanukovich was forced to flee.57 He was dismissed
the next day by Verkhovna Rada, along with the legislature elected in 2012,
and the government that was dismissed was replaced by a non-elected
government.58 In the absence of the president, the Speaker of the legislature,
Oleksandr Turchynov, became acting President of Ukraine.59 Russia labeled
the event as a coup d'état and later began referring to the government in Kiev
as a junta, since armed extremists were involved in running the country and
not an elected government.60 Election to choose a new president without
opposition candidates was set for May 25, within days of the announcement,
on 26th February 2014, hundreds of pro-Russian and pro-Ukrainian supporters
clashed in front of the parliament building in Simferopol.61
Leaders of Crimean Tatars organized a meeting in order to block a meeting
of Crimean parliament, which was, allegedly, making attempts of separation
of Crimea from Ukraine.62 On 27th February, unidentified forces, suspected
of being part of Russian Special Forces, seized the building of the Supreme
Council of Crimea and the building of the Council of Ministers in
Simferopol.63 Whilst these forces were present around the Crimean
parliament, the parliament held an urgent session.64 It voted to terminate the
Crimean government, and remove Prime Minister Anatolii Mohyliov and it
replace him with Sergey Aksyonov and to move towards greater autonomy
from Kiev.65 As per the Constitution of Ukraine, the Prime Minister of
57
RICHARD SAKWA, FRONTLINE UKRAINE: CRISIS IN THE BORDERLANDS, 51 (2015).
58
Id. at 83.
59
Id. at 94.
60
Id. at 93.
61
Id.
62
Id. at 268.
63
Andrew Higgins and Steven Erlanger, Gunmen Seize Government Buildings in
Crimea. THE NEW YORK TIMES, (27 February 2014),
http://www.nytimes.com/2014/02/28/world/europe/crimea-ukraine.html?_r=0. Retrieved 30
April 2016.
64
65
Id. at 104.
Crimea is appointed by the Supreme Council of Crimea in consultation with

the President of Ukraine.66 So the appointment of the new PM itself can be
questioned. On March 11, after disagreements between Crimea, Sevastopol,
and the interim Government in Ukraine, the Crimean parliament and the city
council of Sevastopol adopted a resolution to show their intention to
unilaterally declare themselves independent as a single united nation with the
possibility of joining the Russian Federation as a federal subject, should
voters approve to do so in an upcoming resolution. 67
On March 16, Crimea's government claimed that nearly ninety six percent of
those who voted in Crimea supported Russian annexation. 68 On March 17,
the Crimean parliament formally declared its independence from Ukraine and
requested to join Russia, and on March 18, 2014, the self-proclaimed
independent Republic signed a memorandum of annexation Russia.69 The
accession was granted separately for each the former regions that composed
it, one accession for the Republic of Crimea and another accession for
Sevastopol as a federal city.70
CRIMEAN STATUS REFERENDUM, 2014:
Crimean status referendum, 2014 was to decide on the status of Crimea, was
held on March 16 (as discussed above), by the legislature of the self-
proclaimed Autonomous Crimean Republic as well as by the local
government of Sevastopol, both subdivisions of Ukraine at that time.71 The
vote was to ask people of Crimea whether they wanted to join the Russia
66
Constitution of Crimea, Article 37.
67
68
Id. at 105.
69
Id.
70
Carol Morello and Kathy Lally, Ukraine says it is preparing to leave Crimea, THE
WASHINGTON POST (19 March 2014), available at,
https://www.washingtonpost.com/world/pro-russian-forces-break-into-ukrainian-naval-
base-in-crimea/2014/03/19/2a9c5eaa-af46-11e3-a49e-76adc9210f19_story.html.
Retrieved 30 April 2016.
71
Federation as a federal subject, or if they wanted to restore to their 1992

Crimean constitution.72 It is pertinent to note here that the 1992 constitution
accorded greater powers to the Crimean parliament, which included full
sovereign powers to establish relations with other nations.73
It is important to mention here that the final date and ballot choices were set
only ten days before the plebiscite was held.74 The vote was regarded as
illegitimate by many countries, including all European Union members,
because of the events surrounding it,75 this included the plebiscite being held
while the peninsula was occupied by Russian soldiers.76
13 members of the United Nations Security Council voted in favor of a
resolution declaring the referendum of the Crimean parliament invalid, but
Russia vetoed it and China abstained.77 A General Assembly resolution was
later adopted, by a vote of 100 in favour and 11 against, with 58 abstentions,
which declared the referendum invalid, affirming Ukraine's territorial
integrity.78 Russia officially recognized the results of the Crimean
referendum.79
The official figure of the result from the Republic of Crimea was a 96.77
percent vote for integration of the region into the Russian Federation with an
83.1 percent voter turnout.80 However, the Mejlis Deputy Chairman, Akhtem
Chiygoz, stated that the actual turnout could not have exceeded 30–40
percent.81Following this vote, The Supreme Council of Crimea and
Sevastopol City Council announced the independence of the Republic of
72
Id. at 133.
73
Oliphant, Roland, Crimeans vote peacefully in referendum, but have little choice, THE
TELEGRAPH (16 Mar 2014). Retrieved 30 April 2016.
74
75
Id. at 113.
76
Id.
77
Supra at 70.
78
79
Id. at 58.
80
Id. at 59.
81
Id.
Crimea from Ukraine and requested to join the Russian Federation.82 Russia
then recognized the Republic of Crimea as a sovereign state.83
ANALYSIS ABOUT THE LEGITIMACY OF THE OCCUPATION:
Firstly, the U.N. Charter prohibits states from posing any threats or using of
force against other states.84 Although the number of Russian forces in Crimea,
at the time of the attack, is hard to determine, Russia is said to have sent at a
minimum hundreds of troops, ten troop trucks, and five armored vehicles, and
there are unconfirmed reports that Russian ships bearing additional troops
were to land in eastern Crimea.85
Another argument that is posed by Russia is that it acted in self defense of
Crimea.86 Russia initially claimed military intervention in Crimea was
necessary in order to protect Russian nationals from the hazards in Ukraine
following Yanukovych’s ouster.87 This argument suffers shallowness on both
factual and legal grounds. On the former level, Russia has not presented
reliable data that the ethnic Russians living in Crimea have actually been
targeted by pro-Ukrainian nationals.88
Perhaps Russia chose to play the defense card because it recognised that self-
defense is one of the two exceptions to the prohibition of the use of force
under the Charter of the United Nations.89 However, this legal explanation of
Russia’s position to use of armed force in another sovereign territory to
protect Russian nationals does not qualify for the self-defense exception to
82
Gavin Hewitt, Crimean parliament formally applies to join Russia, BRITISH BROADCAST
CORPORATION (17th March, 2014), available at, http://www.bbc.com/news/world-europe-
26609667. Retrieved on 30 April 2016.
83
Peter Baker, Putin Recognizes Crimea Secession, Defying the West, THE NEW YORK
TIMES (March 17, 2014), available at,
http://www.nytimes.com/2014/03/18/world/europe/us-imposes-new-sanctions-on-russian-
officials.html?hp&_r=1. Retrieved on 30 April 2016.
84
The U.N. Charter, Article 2(4).
85
86
Id. at 207.
87
Id.
88
89
The U.N. Charter, Article 51.
the use of force. This is because under the UN Charter, Russia’s right to use
force in its defence is only triggered if an armed attack occurs against the
affected member of the United Nations (i.e., Russia).90
Thirdly, Russia has often given the argument that the annexation of Crimea
happened in a democratic manner with the concerned parliament passing a
referendum to the same effect, it is argued that in the referendum over ninety
six percent of Crimean population voted to voluntarily separate from Ukraine
and join Russian federation. This is the argument that Russia has most
prominently voiced since the annexation of Crimea, perhaps because the
argument resonates most along with the principles of self-determination that
had come to the forefront in international law when the states such as East
Timor and Kosovo had declared their independence.
Regardless of whether the Crimean vote was proper under international law,
the referendum suffers from incredible procedural irregularities. For instance,
at the time of the referendum, Russia, whose interest in the outcome is very
obvious, had its troops occupied the peninsula. Moreover, the only choices
available to those who participated in the referendum were to either join
Russia as a federal subject or restore the 1992 Crimean constitution91 Crimea
did not therefore have the option to keep the status quo intact. Also, a sizeable
Crimean Tatar minority boycotted the vote.92
CONCLUSION AND COMMENTS:
Having done a detailed discussion about the two insurgencies or the
occupations we can treat ourselves well placed to relate the two situations. A
fact that is very evident in our above discussion is that in the latter case, i.e.
of the Crimean insurgency United Nations did not take any adverse action
against the insurgents, nor did the United States raised its voice the way it did
90
Id.
91
Supra at 72.
92
in the case of the Kuwatian occupation. UN could only propose the

invalidation of the referendum by the state of Crimea, however the even the
successful referendum on the invalidation was of no use since Russia vetoed
the entire process. Russia’s veto is indicative of the fact that the permanent
members of the UN are free to maneuver around the globe the way they desire
with no international law barricades to stop its passage.
As we have discussed above, almost immediately after the Iraqi invasion of
Kuwait the NATO forces had started operations against Iraq, nothing like that
was done in the Crimean occupation. The limited role that NATO played in
the 2014 insurgency was only to monitor the other erstwhile members of the
USSR and not at all appeared aggressive,93 as it was in the case of Kuwait.
The above analysis allows us to infer that though UN is a 193 members strong
organization, real power still vests in a top few. The purpose of an
international institution is to defend those nations who are vulnerable to the
more powerful ones. Catering of the interest of the big guns is not what is
required, as they manage their hegemony over major part of the globe even
when the international organizations or institutions don’t exist, if they still
manage to do the same then the very basis of the establishing of these
institutions can be questioned, and yes the institution in reference is none
other than the United Nations.
93
Naftali Bendavid, NATO Boosts Its Operations in Response to Russia's Moves on
Ukraine, THE WALL STREET JOURNAL, (16th April 2014)available at,
https://web.archive.org/web/20140416231214/http:/online.wsj.com/article/BT-CO-
20140416-708607.html. Retrieved on 30 April 2016.
DOES INCLUSION OF WOMEN DIRECTORS ON BOARDS

HAS FOUND ITS FULL VALUE?
Mukta Jangir*
Introduction
In any corporate organization it is the board of directors who collectively
functions to serve and secure the interest of the company. By seeing the
importance of the role of directors1 the legislature has always been very
particular about the qualifications and experience about the person who will
be holding such a high position in a company. From time to time the Ministry
of Corporate Affairs (MCA) have amended these requirements and
qualifications as per the contemporary situations. One of the examples of such
a step is introduction of the women director compulsorily in a company. The
step has been taken by MCA with an object of fulfilling social security justice
by empowering women in the corporate world.
The idea of social upliftment and gender equality is rooted in the preamble,
fundamental rights and fundamental duties of Indian Constitution. The
constitution gives the legislature positive discrimination power to be
exercised. Fundamental rights specifically related to the rights of woman
includes article142, 15(1)3 and 15(3)4, 165 and 236. Directive principles
* Student, National Law University, Jodhpur

1
Section 2(34), The Companies Act, 2013 “a director as – “director” means a director
appointed to the Board of a company”
2
Article 14, The Constitution of India “Equality before law”
3
Article 15(1), The Constitution of India “The State shall not discriminate against any citizen
on grounds only of religion, race, caste, sex, place of birth or any of them”
4
Article 15(3), The Constitution of India “Nothing in this article shall prevent the State from
making any special provision for women and children”
5
Article 16, The Constitution of India “Equality of opportunity in matters of public
employment”
6
Article 23, The Constitution of India “Prohibition of traffic in human beings and forced
labour”
includes article 39 (a)7, 39(d)8, 39A9, 4210, 4611 and 4712. Instead of express
provision of gender equality in the grundnorm of the country, there is still a
male dominating society in India. However not only in India but in all most
all the countries of the world are facing the issues of gender inequality at work
place. Indian in order to give the woman a better status at workplace, the
compulsory appointment of woman director has been introduced.
Need of Woman Director in Board
The history of woman exploitation in India is very evident from the instances
which were prevalent there is the past like sati, child marriage etc. The
attitude of society towards woman is still not good and mere educating
woman about empowerment is not likely to bring the changes in her status in
society unless guaranteed position is not given to her by law. However, the
contribution of woman cannot be overlooked in the different sectors like
technology, science etc. It is a psychological fact that companies in which
women are employed has more positive and dedicated environment13.
Working women are the prefect example of time management by prioritising
the works since they manage their house hold activities at the same time they
also perform the professional duties to which they are employed for. The
women posses the better interpersonal skills than man and helps in
formulating better strategies and thus provides support to the company to
which they are associated with. Woman are more emotionally strong than
7
Article 39(a), The Constitution of India “that the citizens, men and women equally, have
the right to an adequate means to livelihood;”
8
Article 39(d), The Constitution of India “that there is equal pay for equal work for both men
and women;”
9
Article 39A, The Constitution of India “Equal justice and free legal aid”
10
Article 42, The Constitution of India “Provision for just and humane conditions of work
and maternity relief”
11
Article 46, The Constitution of India “Promotion of educational and economic interests of
Scheduled Castes, Scheduled Tribes and other weaker sections”
12
Article 47, The Constitution of India “Duty of the State to raise the level of nutrition and
the standard of living and to improve public health”
13
Indian Legal Solution, Role Of Women Director In Corporate Board, ILS (Jul. 11, 2019,
1:25PM), https://indianlegalsolution.com/role-of-women-director-in-corporate-board/ .
man and possess the multiple task handling capacity at a single point of time
and thus contributes in excellent performance of the business activities and
thereby to sustain the growth and returns of the company. Women also have
the self-branding attitude and they are very selective in sharing their space.
They have the natural ability to wait for the positive outcome. They possess
the good decision-making power when it comes to the behaviour and
relationship. Woman are highly confident about their steps and have the
ability to empower their fellow employees in better way than man. They are
better solution finders than man and finds alternatives to the difficult
situations very easily and also have the capacity to work in stressful
situations. Since business is all about taking of risk and making right decision
at right point of time women can play a significant role by utilising her
abilities if she is in a decision-making position in a company14.
Legality of Women Director in Corporate Board

Proviso to section 149 (1) of the Companies Act 2013 states that there shall
be at least one-woman director in a company or class of companies which are
prescribed. Further under section 149 (2) further requirement has been laid
for the already existing companies before introduction of the Companies Act
2013 to introduce within one year of commencement of the it a woman
director.
As per Companies Act read with the Rule 3 of The Companies (Appointment
and Qualification of directors) Rules, 2014 (Chapter 11) the following class
of companies are required to compulsorily appoint woman director-
a) A listed company
b) Public company having:
• paid–up share capital of 100 crore rupees or more; or
14
Jahangir Ali Shamma & Kartik Gupta, Role of Women Directors In A Company, T. WOR.
JOU. ON JUR. POL., (2017).
• turnover of 300 crore rupees or more.

Whenever the position of woman director becomes vacant then it shall be
filled in three months from the day when it became so vacant and, in any case,
not later than next board meeting whichever is later.
The above provision of Companies Act 2013, was introduced with a view to
provide some guaranteed representation of woman in board to empower her
in the corporate affairs.
Functions and Duties of Woman Board of Director:

Like any other director of the company woman directors are also required to
perform all those functions which are given under section 166 of Companies
Act 2013 which are:
1. Duty to act as per the articles of company.
2. Duty of good faith to promote the objectives and interest of the
company, shareholders and employees of the company.
3. Duty to exercise independent judgment while making use of skill,
diligence and reasonable care15.
4. Duty to avoid the situation of conflict with the interest of the company
and his own personal interest.
5. Director will not procure personal gain out of the business of the
company and shall in case of so doing shall return the equal amount
of gain to the company.
6. Duty not to further assign her work in contravention of the rules of the
company.
7. In case of contravention of duty by the director she shall be subject to
fine which shall not be less than one lakh rupees but which may extend
to five lakh rupees.
15
Mahalakshmi.V., and Dr. P.Narayana Reddy, Corporate Governance and Presence of
Women Director on Boards, JOU. of BUS. and MGT. 59-64 (2017).
Issues and Challenges

Gender equality has always been an issue at workplace like any other field in
India. Even when equality at workplace has been recognised as basic human
rights frequent instances happens when discriminatory treatment is given to
the woman. In India certain guidelines were issues by the Supreme Court of
India in the matter of Vishakha v. State of Rajasthan16 on the basis of which
Sexual Harassment of Woman (Prevention, Prohibition and Redressal) Act
2013 has been enacted. The act mandates for the constitution of the Complaint
Committee which is headed by a woman at senior position in the company
and half of this committee are required to be the women only. The mandate
under the companies act of woman director has helped in creating a hostile
environment in the company.
Right to work is a basic human right of everyone but this right of a women in
her family is decided by the male and other elder members of the family. India
is a country where a woman who is more qualified than a man is still treated
less favourably than man in family and workplace. Thus, this step seems to
be illusory since it is very difficult to ensure that the women who is appointed
as a director in the company is actually taking active part in the functioning
and decision-making process and that she is not holding a nominal position
in the company. Therefore, this step of women empowerment is under the
serious threat of practical feasibility in the social conditions like India. The
history of Indian companies reveals that there were very less women who had
participated in board of the company. The common explanation to this can be
found that there are very small number of women who are qualified and
experienced at the executive level and are competent to be appointed as board
member.
16
Vishaka and others v. State of Rajasthan and others, [1997] S. C. 3011 (Ind.)
However, the arguments which are generally adopted in the companies that
there are no experienced and qualified females at executive level is
completely absurd. As per an article published on economics times it is stated
that gender diversity expert believes that it is not that woman are not qualified
to be appointed in the board but it is because of the trend that companies
prefers a woman out of another board. They are not ready to introduce the
fresh females in the board. There is hardly any leading company that has
introduced a new woman in the board rather woman director is appointed out
of the family, friends or well-known woman only17.
Therefore, the statutory provision of introducing woman as a board member

mandatorily was very much needed in a country like India. However the
object of empowering woman in the corporate sector seems far away from
reality since in many companies a woman who is sitting or is likely to sit is
none other than family member of the maximum shareholder of the company
as a symbolic woman director to meet the statutory requirement and
ultimately the male is going to rule in the board meetings by imposing his
decision. Since from total of 1,723 NSE companies, 1667 companies have
actually implemented the statutory mandate of bringing woman director in
board. Out of these companies in 425 companies woman directors are
appointed either from the family or from the promoter group of the
companies18.Thus, object of introduction of the woman in board is not going
to change the situation of a woman in the corporate sector and there is need
17
Rica Bhattacharyya, Many Companies Still To Induct Woman Independent Director,
ECONOMICTIMES (Jul. 11, 2019, 1:35 PM),
//economictimes.indiatimes.com/articleshow/67733197.cms?utm_source=contentofinterest
&utm_medium=text&utm_campaign=cppst
18
PRIME DATA GROUP, CORPORATE INDIA: WOMEN ON BOARDS (2017).
to introduce better provisions for empowering the woman in economic affairs

of the country.
Introduction of Independent Woman Director in Companies and its
Effects
SEBI has accepted the recommendation of Kotak Committee for introduction
of one independent woman director in the companies. SEBI has mandated
now to introduce independent woman director in board for top 500 listed
companies to comply the requirement before 1st April 2019 and for the rest
of 1000 companies to comply the requirement by 1st April 202019. This step
of SEBI will help in actual woman empowerment in corporate sector since
the companies will have to look for rank outsider woman to be an independent
director in the company which ultimately opens the door of opportunities on
executive level of the company. Thus, this positive step of SEBI will help
woman to come forward to corporate sector and make their career by getting
equal opportunity20.
Recommendations and Conclusion

Since the role of directors in the company is very critical in success of the
companies and to make woman part of it mandatorily help many young
women to opt for corporate sector for their career. The hurdler of family
pedigree has also been tried to be removed from the way of success for the
women by introduction of independent woman director in the company in
addition to woman executive and nonexecutive director. The issues which
were faced by woman earlier will be reduced to an extent since the companies
cannot ask woman from their family to sit as an independent director and only
19
KPMG, SEBI IMPLEMENTS KOTAK COMMITTEE RECOMMENDATIONS (2018).
20
Mansi Airi Gambh, SEBI Tightens Reigns on Corporate Governance Yet, MONDAQ (Jul.
11, 2019, 1:35 PM),
http://www.mondaq.com/india/x/767948/Shareholders/SEBI+tightens+reigns+on+corporat
e+governance+yet+again.
rank outsider who has no connection and interest in the affairs of the company
can be appointed as independent director. This will further help in good
governance of the companies since woman are highly sincere towards their
duties and they will defiantly be performing the duties in the best interest of
the company and perform the whistle blowing function for which they are to
be appointed in the company. Thus, intendent woman director in the company
is a smart move by the SEBI which will help in empowerment of woman as
well as help in bringing good governance in the companies. However, it is
not fully guaranteed that rank outsider will be looked for appointment of
independent director, since independent director of the company are itself
recommended by the person who are already sitting in the board or who are
holding key managerial position in the company. Therefore, this discrepancy
in appointment of intendent director needs to be addressed by SEBI in a better
way so that its real object behind introduction of independent woman director
can be duly attained.
NATION URGES FOR REJENUVATION

Bulbul Chatterjee*
Introduction
India is the world’s largest democracy; its criminal justice system is also the
biggest judicial system of the world. But unfortunately, after the passing of
time its shine is rapidly decreases because of lots of lacunae in criminal justice
system.
There is need of time to rethought and reformulate the justice to address the
problems of the current scenario .meaning of justice in , one sense , is a grant
of relief to the person who approached to the court of law, it is important to
that justice work effectively but it is also important that it should be work on
time.
Low rate of conviction points to the deficiency of the Criminal Justice System
of India – which includes the police, prosecutors, and the judiciary. The
Indian criminal justice system is an instrument of social control. Criminal
justice system consist the agencies of government, responsible with the
function of implementation of laws, adjudicating crime, and correcting
criminal conduct.
The Justice Malaimath Committee1 on ‘Reforming Criminal Justice

System’ rightly observes that “The entire existence of the orderly society
depends upon sound and efficient functioning of the Criminal Justice
System.” it has to be ensure that criminal justice system functions with speed,
fairness, transparency and honesty, it is difficult to bring down prevailing
“crisis of legitimacy.” This will be results in a big problem that people losing
faith in the Criminal Justice System of India – which can be very dangerous.
, Pendency in the investigation and trial proceedings of criminal cases erodes
*Student, Maharaj Vinayak Global University

1
https://mha.gov.in/sites/default/files/criminal_justice_system.pdf
the faith in the criminal justice system, which has serious implications for the
legitimacy of the judiciary. Justice delayed, is thus justice denied.
There is some deficiency which needs the development of various mechanism
and techniques than can be effectively incorporate into the policy framework.
Therefore, in order to understand the criminal justice system, it is worth to
study the object of the criminal justice system.
OBJECTS OF THE CRIMINAL JUSTICE SYSTEM

The object of criminal justice system is to-:
• To reduce crime rate and maintain law and order in the society,
• To punish the criminals and to deter the offenders from committing
any criminal act ,
• To rehabilitate the transgressors and the criminals, and to compensate
the victims as far as possible.
COMPONENT OF THE CRIMINAL JUSTICE SYSTEM

Broadly, the Indian criminal justice systems have the mainly three
components:
1) Law Enforcement: Law enforcement agency: it investigates into crimes
and collect evidence and to maintain law and order. Mainly it includes police
forces in India.
2) Adjudication: This pertains to judicial processes and can be further
divided into:
A. Prosecution: Prosecutors advocates of state in court of law. Prosecutors

cross-checked the evidence brought to them by the police or other
investigating agencies. To decide the allegations and present them in the
court.
B. Defence Lawyers: They defend the accused against the case which is filed
by the government.
C. Courts: Courts are run by judges, whose role is to make sure the law is
followed and oversee what happens in court.
3) Corrections and Prisons: They supervise convicted offenders when they

are in jail or in prison.
There are two facet involved in imprisonment: ‘imprisonment as

punishment’ and ‘imprisonment for punishment’. In the first aspect,
solitary confinement and denial of societal contacts is regarded as
punishment. In the second aspect, apart from the first aspect, the addition of
physical, mental and other kinds of tortures are considered as part of
punishment. The latter facet, by default, gets activated due to poor prison
facilities resulting in the counter productiveness of the whole judicial system.
REASONS FOR NEED TO REFORMS IN THE CRIMINAL JUSTICE

SYSTEM
In current scenario, change is continuous process and Indian criminal justice
system is needed to change itself because most of the laws were undertaken
during colonial period. There are many reasons for reforms such as non-
accountability of police personnel , ineffective enforcement of the law, and
time taking process of disposal of cases, need of efficient and trained police,
overburdened court system and poor prison conditions. These all are the
significant problems, which has to be addressed and reform in the criminal
justice system. There are problems in all the three components – law
enforcement, adjudication and correction- which must be addressed.
• As per the latest data there is a pendency of more than 2.8 crore cases
out of which almost 2 crore cases are criminal in nature.
• In India, only 16% people who are alleged for criminal offences got
adjudication by the court of law. Low rate of conviction shows the
inefficiency of the criminal justice system. The present ratio of judges
is 13 judges per million people is one of the lowest in the world.
• The system has become ineffective: The main function of criminal
justice system is to provide protection to the rights of the citizen and
punish the guilty person but the system, based on outdated laws, has
led to harassment of people by the government agencies and also put
pressure on the judicial system of India.
Inefficiency in justice delivery: The system takes number of years to bring
justice and has become ineffective to deter criminals. There is a scarcity of
synergism among the judiciary, the prosecution and also the police. There are
two aspects of delay first, deals with the time taken to complete a trial and
give a judgement and the second aspects, is related to pendency, pertains to
the consequences of delay, and it effect under trails prisoners. On the
contrary, many innocent people remain as under trail prisoners as well. As
per NCRB data2, 67.2% of our total number of prisoners comprises of under
trials prisoners. It means that 2 out of 3 prisoners in India is an under-trial.
Additionally, extended pre-trial detention also causes a mental trauma on
prisoners and impact on the socio-economic condition of the accused person’s
family. In many cases, an under trail prisoners may be the only earning
member of the family.
Delays in the administration of justice, affect rights of the victims also.
Long trials can lead to evidence, especially eyewitness testimony, being
forgotten or lost, which reduces the chance of conviction.
Complex nature of the crime: Crime rate is increasing rapidly and the nature
of crimes are becoming more complex due to technological innovations.
2
http://ncrb.gov.in/StatPublications/PSI/Prison2012/Full/PSI-2012.pdf
Investigation incapability: It is caused by untrained and unskilled police

personnel it led to delay in or haphazard investigation of crimes which results
into delay in dispensing prompt justice.
The lowered confidence of common man: The judicial system of India
losses faith from citizen and there is a rise in cases of mob violence. This will
be results in a big problem that people losing faith in the Criminal Justice
System of India – which can be very dangerous.
There are 3 immediate factors which act as barriers to access justice:-
First, is “external factors” such as pecuniary and geographical barriers,

which exclude certain people of society by preventing their access to courts?
Geographical barriers from courts cause great difficulty to litigants, accused,
witnesses, to cover long trips to reach the courts, only for the matter to be
adjourned. Distance also affects the probability of appealing the decision of
a lower court to a state high court or to the Supreme Court.
According to Nick Robinson3, in his report of the Supreme Court’s docket
in an excellent analysis, found that there was a great difference in appeal rates
based on the proximity of the state high court to the Supreme Court in Delhi.
Where the appeal rate in Delhi in 2008 was 10%, whereas, in Tamilnadu it
was 1.1%.4
Second are ‘internal factors’, such as judicial proceedings and
technicalities, which affect everyone in the system, but it disproportionately
impact those who have no better means to defend himself and having fewer
resources.
Third is, there are quality factors, which are caused by the uncertain and
inconsistent application of law and arbitrary sentencing. Reforms in these
3
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2189181
4
https://frontline.thehindu.com/static/html/fl2703/stories/20100212270304600.htm
areas will significantly improve the lives of citizens by creating equal

opportunities to enforce the law and also improve the social cohesion.
There are some reports which suggest some measure for the reforms which
could be undertaken by the government and serious implementation of these
suggestions could make a better situation than present in, criminal justice
system. Such as-:
Recommendation of the Malimath Committee5

There are some important recommendations of the committee are:
• Courts and Judges: State government needs to recruit more judges.
In lower courts, there is number vacant post, which results into
pendency of cases.
• National Judicial Commission6: Recommends for the establishment
of a National Judicial Commission to deal with the appointment of
judges to the higher courts and amending article 124 to make
impeachment of judges less difficult.
• Separate criminal division in higher courts: The higher courts
should separate criminal bench with the specialised judges of criminal
law.
• The inquisitorial system of investigation: The Inquisitorial system
of investigation should be followed in India like Germany and France.
• Power for court to summon any person: The court should have
power to summon any person if it felt necessary, whether or not listed
as a witness.
• Right to silence: There is need of modification to article 20(3) that
protect the accused from being compelled to be a witness against
5
https://mha.gov.in/sites/default/files/criminal_justice_system.pdf
6
https://www.prsindia.org/sites/default/files/bill_files/bill88_2007100588_Judicial_Commi
ssion_NAC.pdf
himself/herself. The courts should empower to question the accused

to elicit information and draw an adverse inference against the
accused in case the latter refuses to answer.
• Presumption of Innocence: The court should follow “ proof beyond
reasonable doubt” as the basis of conviction an accused in criminal
cases which results an unreasonable burden on the prosecution and
instead of it , a fact should be considered as proven “ if the court is
convinced that it is true” after evaluating the matters before it.
• Justice to the victims: The victim should participate in cases in
serious crimes and also be given adequate damages. The state should
provide counsellor of their own choice and to plead on his/her behalf
and the cost should be borne by state if victim is unable to afford it.
• Victim Compensation Fund7: A victim compensation fund should
be created under the law and the assets confiscated from organised
crimes can be made part of the fund.
• Police Investigation: The function of police of investigation wing
should be separated from law and order.
• National Security Commission and State Security Commissions:
establishment of a National Security Commission and State Security
Commissions.8
• SP in each district: Appointment of a superintendent of police in
each district to maintain crime record.
• Director of Prosecution: A new post, Director of Prosecution, should
be established in every state to provide effective coordination between
investigation and prosecuting officers.
7
http://vikaspedia.in/social-welfare/social-security/central-victim-compensation-fund-
scheme-cvcf
8
http://pib.nic.in/newsite/PrintRelease.aspx?relid=175277
• Witness protection9: The statements given by the witnesses in form

of dying declarations, confessions, and audio/ video recorded should
be authorised by law. There should be a strong witness protection
mechanism.
• Arrears Eradication Scheme: Lok Adalat should priorities those
cases which are pending for more than two years.
• Offences classification: Offences should be classified on the basis of
different aspects such as social welfare code, correctional code,
criminal code and economic and other offences code instead of the
current classification of cognizable and non cognizable cases.
• Central law for organized crime and terrorism: The central
legislation should enact a law for organised crime, federal crimes and
terrorism.
• Periodic review: Periodical review must be conducted for the
criminal justice system by a presidential commission.
Reforms undertaken by the government
The government has implemented a number of recommendations such as-:
1. Permitting videography to record statements,
2. The definition of rape has been expanded and new offences against
women have been added like stalking, voyeurism, etc.
3. The victim compensation scheme is added under Criminal Law
(amendment) Act, 2013.10 The central government bring a central
victim compensation fund (CVCF) scheme, to enable support to
victims of rape, acid attack, human trafficking and women killed or
injured in the cross border firing.11
9
https://nalsa.gov.in/sites/default/files/document/Suggestions_on%20_Witness_Protection_
Scheme.pdf
10
https://www.prsindia.org/sites/default/files/bill_files/Changes_in_laws_other_than_IPC_b
y_Criminal_Laws__Bill.pdf
11
http://vikaspedia.in/social-welfare/social-security/central-victim-compensation-fund-
scheme-cvcf
4. The government has repealed more than 1000 obsolete laws which
came in the way of smooth administration.
5. The government has given its nod for implementation of an umbrella
scheme of ‘modernisation of police forces’12 with modern use of
technology.
6. The lok adalats and gram nyayalayas were established to provide easy
access to justice to the citizens at their doorsteps.
7. The parliament enacts the legal service authority act with an object to
provide free and competent legal service to the weaker section of
society.
Way forward
1. As Padmanabhaiah Committee advocated, for “a highly motivated,
professionally-skilled, infrastructural, self-sufficient and sophisticatedly
trained police force.” There is a need of serious effort to strengthen the overall
capacity and skills of police. Attention is required for proper training,
development of advanced forensic skills and facilities. Government need to
separate the function of police for conducting investigations from day to day
responsibilities for maintain law and order. There is a need to updating
educational level in the security forces and developing a technological and
scientific temper. There is a need to connect all police stations in the country
through an intranet.
2. As criminal justice commission suggests, the good features of the
inquisitorial system can be adopted to strengthen the present Adversarial
system of common law to increase the rate of conviction. In inquisitorial
system, a judge or group of judges actively investigates the case. In addition,
to electronic filing systems, India’s courts need more judges, higher filling
costs (to discourage frivolous litigation), improved tracking of cases. The
12
https://mha.gov.in/sites/default/files/MPF_19022018.pdf
system of Alternative Dispute Resolution should be strengthened. Further, the

new trend of evening courts can be adopted. This would provide additional
time and resources for disposing the pending case.
3. The true meaning of rehabilitation will be inmates, when prisoners also

provided education during their imprisonment so that they will be eligible for
employment after completion of imprisonment.
The establishment of open prisons could be taken as an alternative for the
closed prisons; the latter being reserved for hardcore criminals shall be one
of the foremost prison reforms in the penal system. Open prison is very
modern and effective alternative to the system of closed imprisonment.
There is a need of centralization of prisons and a uniform jail manual
should be drafted throughout the country by the central government. The
standard of uniformity should be maintained throughout all the states.
Conclusion
However, if we are assuming that such methods are successful in reducing
the pendency of cases, we also need to careful not to lose focus on the quality
of substantive justice rendered. Plea bargaining rapidly decreases the backlog
in courts, by encouraging accused. In certain cases to plead guilty in exchange
for a reduced sentence, but serious questions have been raised about the class-
bias that operates in these systems. For instance, as the recent Daksh report13
stated, an accused who was in prison for many years, may think it would be
more advantageous for him to go plead guilty and leave jail, instead of face
the uncertainty of trial.
13
https://judicialreforms.org/state-of-the-indian-judiciary-a-report-by-daksh/
Thus, any holistic solution will have to be cognisant of the variety of factors
that cause delays, with a strong focus on empirics to understand the cause for
delays. We have made a start in this direction, but have a long way.
THE SHARE OF PRODUCERS AND AUTHORS IN THE

ROYALTIES EARNED FROM CINEMATOGRAPH FILMS
FOR THEIR RESPECTIVE UNDERLYING WORKS – A
CRITICAL STUDY
Karan Rampure* & Bikashita Chatterjee**
INTRODUCTION
The Indian film industry comprising of the Bollywood and Tollywood is a
huge entertainment industry with a gross realisation of around $2.1 billion as
compared to the US industry with around $11 billion and is significantly
growing at a rate of 11.5% year on year and is expected to reach a gross
realisation of $3.7 billion.1 Such incredible growth is backed by the hard work
of many persons including the spot boys, the cameraman, the stunt men, the
makeup artists, the lyricist, the music composer, the choreographer, the script
writer, the screen writer and last but not the least the producers and the
director who invest huge amount of money and time so as to make the movie
superhit.
Internet has led to globalisation of the Indian film industry because of which
it has become a reason for the producer to invest huge amount of money. Most
part of the work in a film like scripts, music, storyline, etc are intangible in
nature. To protect the work and efforts put forward by the team and the
investment made by the producer in such intangible hard work are to be
protected by intellectual property laws. The law which governs the underlying
efforts in a cinematograph films is the Indian Copyright Act, 1957, as rights
which are to be protected are the intellectual property of the author of such
creation and also to protect the owner i.e. the producer of the cinematography
film.
*Student, Symbiosis Law School, Hyderabad

**Student, Symbiosis Law School, Hyderabad
1
https://economictimes.indiatimes.com/industry/media/entertainment/media/film-industry-
in-india-to-hit-3-7-billion-by-2020-says-report/articleshow/60998458.cms
A copyright subsists in a cinematograph film by virtue of section 13(1)(b). A

cinematograph film means any work of visual recording on any medium
produced through a process from which a moving image may be produced by
any means and includes a sound recording accompanying such visual
recording and cinematograph shall be construed as including any work
produced by any process analogous to cinematograph including video films.
Cinematograph film is a film which by rapid projection through an apparatus
called cinematograph projector produces the illusion of motion on a screen of
many photographs taken successfully on a long film.2 For the purpose of the
copyright of the cinematography film, the producer is considered to be the
owner of the copyright. When it comes to the ownership of the copyright, our
main issue in this research project arises with respect to the royalties earned
from cinematography film and the share of such royalties among the authors
of the underlying works and the producer of the cinematography film.
FINDINGS/ANALYSIS OF THE STUDY

The research questions raised for this research project shall be duly answered
below-
CINEMATOGRAPHY FILMS
A cinematograph film means any work of visual recording on any medium
produced through a process from which a moving image may be produced by
any means and includes a sound recording accompanying such visual
recording and cinematograph shall be construed as including any work
produced by any process analogous to cinematograph including video films.
Cinematograph film is a film which by rapid projection through an apparatus
called cinematograph projector produces the illusion of motion on a screen of
many photographs taken successfully on a long film.3
2
B. L. Wadehra, Law Relating to Intellectual Property (5th edition, 2011)
3
B. L. Wadehra, Law Relating to Intellectual Property (5th edition, 2011)
COPYRIGHT PROTECTION IN CINEMATOGRAPHY FILM AND

THEIR UNDERLYING WORKS
The copyright in the cinematography film is a complicated matter because the
cinematography film is the inclusion of various work with respect to the
sound recording as well as visual recording. This underlying works of
cinematography films are divided into three stages, pre-production stage,
production stage and post-production stage.
Pre-production stage is basically the preparation stage of the production of
the cinematography film, it includes scripting, hiring cast and crew, finding
locations for the shoot, screenplay, rehearsals, etc, the pre-production stage is
considered to be the foundation stage of a cinematography film and so legal
protection at this stage would make the job easy for the production team to
protect their copyrights in the future.
The legal protection during pre-production stage is done by getting into an
agreement with the parties which will be hired by the makers of the film for
the performance of the pre-production stage. Agreement shall consist of the
rights and the duties of these mentioned parties. The most important
agreements are entered by the makers of the film with the actors, music
composers, lyrists for promotion of the film and distribution of the song
tracks, co-production agreement among the makers of the film, distribution
rights agreement for theatrical rights, these theatrical rights might also include
the International distribution of the film across various countries. Also,
conveyance of intellectual property rights, such as performer’s rights,
trademarks, assignment of copyright, etc. After all the agreement with such
mentioned parties, the right to broadcast and telecast agreement would be
entered with various channels and satellite service providers such as Tata Sky,
Dish TV, etc. These agreements are entered at the beginning so as to avoid
contradictions, misunderstanding and controversies during the post
production period and to avoid further issues at the time of the shooting of
the cinematography film.

The copyright protection during the production stage is needed with respect
to the underlying works of the cinematography film. The following are the
aspects of the cinematography film which is to be protected under the
Copyrights Act-
• Literary Work: Literary work are the one which are in the form of writing
or even printing with respect to the cinematography film, this will include
the script, storyline, graphical images, animation, lyrics, musical notes,
etc.
• Artistic Work: Artistic work are the one which includes painting,
sculpture, drawing and other such work which would be of artistic nature
with respect to the film. Artistic work would include the background set,
costumes, any structure built specifically for the film, sets, designs, etc.
The same are supposed to be put in writing so as to avail the protection
under the copyright act.
• Dramatic Work: Dramatic work are the one includes specific movement,
delivery of dialogue in certain way, dance steps, stunts, etc. Similar to the
artistic work this works is also to be put down in writing so as to avail the
protection under the Copyright Act.
• Musical Work: Musical work are the one which includes the musical
notes in their graphical notation this expands to songs, background music,
theme music and other such sound recording made and represented
graphical notation, etc.
• Sound Recording: Sound recording consist of music, lyrics, song in the
cinematographic film, all of these can be protected individually under the
Copyright Act, 1957. When these recordings are made as a part of
cinematography film it is owned by the producer of the film, the rights of
the authors of the sound recording may be determined.
After the production stage is over and the underlying works fall in its place
completely and the project of the cinematography film is complete, there

comes the stage of post-production, this is the stage where the rights are
determined associated with the owner of the copyright.
• Reproduction rights: The right to reproduce is held by the copyright
owner, this right creates an obligation for others from copying the work
laid down in the cinematography film which includes the film as a whole
as well as the individual aspects discussed earlier as a part of underlying
works of the film.
• Distribution and rental rights: This right of the copyright owner i.e.
usually the producer of the film, to distribute the copies of the
cinematography film in the form of DVDs or such which would avail the
user to own the copy of the film he has paid for is exclusive and no other
person can infringe the same. The Rental rights are the rights of the owner
of the copyright to rent the copies of the film to the viewers for a specified
period of time, for example the one we witness on TATA Sky and other
such satellite TVs services, so as people can watch movie at a
significantly lower price as compared to that of the officially distributed
DVDs.
• Synchronization rights: This right can be witnessed in many of the TV
shows where the sound recording in the cinematography film is
synchronized with the visual recordings other than that of the film. The
use of such sound recordings cannot be made without the authority of the
owner of the copyright.
• Broadcasting rights: The right of the owner of the copyright to assign the
film to the channel or other broadcasting sources like cable network,
Netflix, etc is known as the broadcasting rights, it is usually for a period
of 25 years or the term specified in the agreement.
• Translation and adaptation rights: This right is enjoyed by the producer
of the film so as to assign the right to translate and re-release the film or
adapt the same cinematography film into another film.

• Display rights: The authorization from the owner of the copyright is
needed so as to display the lyrics or play the music video in any
function/program, it is an exclusive right held by the copyright owner.
RIGHTS WITH RESPECT TO ROYALTY TO AUTHORS OF THE

UNDERLYING WORKS AND THE PRODUCER OF THE
CINEMATOGRAPHY FILMS
The Copyright Act, 1957, provides protection even to the artists working in
the cinematography films with respect to their contribution to the film. The
artists in the cinematography films are not protected by copyrights. But, after
The Copyright (Amendment) Act, 1994, recognized certain rights of the
performers, those are called as “Performer’s Rights”.4 The word ‘performer’
includes a musician, singer, actor, juggler, snake charmer, a person delivering
lecture or any other person who makes a performance.5 These rights of the
performer (Performer’s Rights) subsists for 25 years from the year of
performance.
The performer has the exclusive right to do the following-
• To make sound recording or visual recording of the performance,
• To reproduce a sound record or visual recording of the performance,
• To broadcast the performance,
• To communicate the performance to the public otherwise than by
broadcast.
The copyright protection to the author of the underlying works such as the
lyrics and other musical works is provided under section 14(d) of The
Copyright Act, 1957. This provision benefits the music composer so as to
perform in public for profit otherwise than a part of the cinematography film
4
The Copyright Act, 1957, s 38
5
The Copyright Act. 1957, s 2(qq)
as a distinct copyright is created in film as a whole and they cannot be

restrained from doing so.
Generally, the author of the underlying works is considered to be the first
owner of the copyright with respect to his creation.6 Whereas, in
circumstances in The Copyright Act, it is said otherwise.7 In India, once the
contract of assignment is entered into by the producer of the cinematography
film and the author of the underlying works, such as the writer or the lyricist,
they have no right to royalties which may arise from the use of musical work,
and all of such royalty would be accepted as profit by the producers. The same
has been based on the landmark case of Indian Performing Rights Society
Ltd. v. Eastern India Motion Pictures Association8, initially, the Copyright
Board held that the composers9 of the music and the lyricist retained
copyright in their musical works incorporated in the sound recordings of the
cinematography films and could collect royalties, fees and charges with
respect to those films. This decision of the Copyright Board was set aside by
appeal preferred to the High Court. The High Court in its decision interpreted
Section 17(b) and Section 17(c) in relation to Section 13(4) of The Copyright
Act, 1957, so as to mean that the rights of the composer of music and lyrics
can be defeated by the producer of the cinematography film as him being the
first owner of the copyright. In addition to this, it also added that no copyright
shall subsists in the composer of music or lyricist, unless there is an agreement
to the contrary. And once the author of such musical work transfers his rights
to the producer, he cannot claim for the same and the infringement of it.
In the case of Eastern Motion Pictures v. Performing Rights Society10, the
Calcutta High Court decided that the producer of the cinematograph film will
6
The Copyright Act, 1957, s 17
7
The Copyright Act, 1957, s 2(uu)
8
Indian Performing Rights Society Ltd. v. Eastern India Motion Pictures Association, 1977
SCR (3) 206
9
The Copyright Act, 1957, s 2(ffa)
10
Eastern Motion Pictures v. Performing Rights Society, AIR 1978 Cal 477
be considered to be the first owner of the work created by the composer of

music or lyricist, if there was certain reward or consideration given by the
producer to the creator of such work.
If the author of literary work or musical work is not included in the
cinematography film but is used for sound recording, then these authors
would be protected by provisions of The Copyright Act, 1957, which
prohibits them from assigning or waiving of their right to receive royalty for
their work.11
The Copyright Act, 1957 does not only protect the economic rights of an
author but it extends to the protection of the reputation as well as personality
of an author against distortions of their work, mutilations and modification of
their work. The Copyright Act, even though after providing so many rights in
the statute itself, they are still not protected completely against the
unauthorized infringement of their underlying work.
THE COPYRIGHT ACT, 1957 AFTER THE 2012 AMENDMENT,
THE PRESENT SCENARIO
The 2012 amendment to The Copyright Act, 1957 focused on the rights of
the performers and broadcasting organisations so as to eliminate the unequal
treatment to the composers of the music and lyricist of copyright works,
which is contractually practiced in the Indian entertainment industry.12 The
composer of the music and lyricist assigned their rights to the producer of the
cinematograph film for a one time lump-sum payment and so had no further
right to any royalty arising from the work being utilized in such
cinematography film.13
In fact, many of the music composers and song writer are not pleased with
11
The Copyright Act. 1957, s 34 and s 36
12
T. R. Srinivasa Iyengar, The Copyright Act, 1957 (Dr. R. G. Chaturvedi, 10th edition,
2013) 178
13
Newman Christopher, Louisiana law Review, 74 (1) (2013) 59, 110
the amendment and have challenged its Constitutionality.14 The challenge is

made to the Section 33(1) of The Copyright Act, 1957, which compulsorily
requires these music composers and song writers to transact licensing
business through a copyright society, on the ground that it restricts their right
to license their work and forces them to join copyright society. And joining
this copyright society would not provide an acceptable distribution scheme of
the royalties.
CONCLUSION & RECOMMENDATION
From above we conclude that, the provisions with respect to the rights and
sharing of royalties by the producers, who are the owner of the copyright of
the cinematography film and the authors of the underlying works, who are the
creator of their works is vague and needs to be more stringent with respect to
the earning of royalties. As discussed in the research project, we see that the
2012 amendment which was made in the favour of the creators affect them
constitutionally and the argument for the same still continues. Though the
laws are not stringent, there are large number of authors of underlying works
fighting for their rights against the copyright society which holds a power to
collect royalty on behalf of them. It has been made very clear in the cases
mentioned in the research project that the royalty is to be provided to the
author only if no lump-sum amount is paid to them or if they are not paid as
per the agreement between the producer and them. But making the case laws
as the base, there shall be a supporting legislation made with respected to the
rights of both producer as well as the author of the underlying works.
The Copyright Act, 1957 shall not be just to protect the authors from the
infringement of their rights and economic fairness but shall also make a fair
bargaining between the creators and owners of the cinematography films. It
is need of an hour for a proper provision because the Indian film industry is
14
Devender Dev v. Union of India, W.P. (C)- 2959/2013
leading industry and growing significantly year by year. If there is too much
delay in the creation of the provisions, the same would lead to a serious issue
in the future. If the royalty is earned with respect to the underlying works of
the cinematography film then according to me the royalty is to be shared
equally among the producer and the authors of such work or at least at a
certain specified ratio, where the non-waiver of such royalty shall be existent.
IS THE INDEPENDENCE OF THE JUDICIARY AS A

PILLAR OF DEMOCRACY UNDER THREAT?
Shreya Gopal. Ar*
“The judiciary must be strengthened and released from political
interference”
Aung San Suu Kyi
“There is a danger to judicial independence when people have no
understanding of how the judiciary fits into the constitutional scheme”
David Souter
INTRODUCTION
It is of common knowledge that there was no difference of opinion among the
members of the constituent assembly, while framing the constitution of India
, regarding the independence of judiciary , as to how the judiciary must be
independent of the executive while also being competent in itself.
The meaning of the term independence of judiciary is still very vague and has
caused innumerable squabble between the executive , legislature and the
judiciary. By far, the one principle which is said to run through the entire
fabric of the constitution it’s the rule of law and it’s upto the judiciary to keep
every organ of the State within the limits of the law thereby making the rule
of law meaningful and effective1 The manner in which the judiciary conducts
itself and carries out its duties will determine whether or not the public
regards it as the guardian and interpreter of the constitution or distrusts it by
labelling it as just another organ of the state.
Due credit is given to the doctrine propounded by Montesquieu , the doctrine
of separation of powers which rendered the judiciary as the third pillar of
democracy in our country. It spoke about how the three organs of the state
should be separated from one another and also make sure that one organ
* Student, SASTRA Deemed to be University

1
S.P.Gupta v Union of India [1981] 2 SCR 365 (SC)
doesn’t poke its nose into the matters of another. When we speak of the
judiciary as an institution of democracy, we not only mean the judiciary as an
institution of democracy but also the tenure and accountability of judges, the
length of tenure, reappointment of judges on terms, fixed and adequate
compensation, methods to ensure accountability and ofcourse, separation of
powers.
When it comes to ensuring the independence of judiciary, the constitution
makers have included enough and more provisions in the lengthy document
for the same. Some of those include,
1. Article 121- Restriction on discussion in Parliament No discussions
shall take place in Parliament with respect to the conduct of any Judge
of the Supreme Court or of a High Court in the discharge of his duties
expect upon a motion for presenting an address to the President
praying for the removal of the Judge as hereinafter provided2
2. Article 50 ensures separation of judiciary from executive in one direct
provision which thereby ensures their independence and no
interference from the executive.
3. Article 138- In all the provisions the Parliament an exceed, but cannot
curtail the jurisdiction and power of the Supreme Court.
4. Supreme court judges enjoy security of tenure and cannot be removed
from office except by an order of the President by adopting set
procedure laid down in the constitution.
5. Art. 124(2)- Executive cannot appoint the Judges without the
consultation of the Judges of the Supreme Court
6. Article 129 and 215 - The supreme Court and the High Court have
the power to punish any person for its contempt under article, this
2
The Constitution of India 1949
power is very essential for maintaining the impartiality and

independence of the Judiciary.
7. Article 124(7) -Retired Judges of the Supreme Court are prohibited
to appear and plead in any court or before any authority within the
territory of India.
Thus there are several provisions placed in the constitution for
safeguarding the bedrock of rule of law, which is the independence of
judiciary.
To get a fair idea of what independence of judiciary means, we must
understand from whom the judges and the judiciary needs to be independent
from. In our country, though the judges of supreme cour and high court are
appointed by the government , they are not 'government servants' in the
popular sense of the term due to certain distinguishing features such as the
fact that government has no power to direct what work or the manner in which
a Judge shall discharge his judicial duties3. Their tenure of service, salary and
other conditions of service are guaranteed by the Constitution
Although the independence of the judiciary does not mean just the creation
of an autonomous institution free from the control and influence of the
executive and the legislature. The underlying purpose of the independence of
the judiciary is that judges must be able to decide a dispute before them
according to law, uninfluenced by any other factor. Upon that reason the
independence of the judiciary is the independence of each and every judge.
But whether such independence will be ensured to the judge only as a member
of an institution or irrespective of it is one of the important considerations in
determining and understanding the meaning of the independence of the
judiciary.4
3
Union of India v Sankalchand Himmatlal Sheth [1978] 1 SCR 423 (SC)
4
SIRACUSA Principles 1990
A major threat to the independence of the judiciary is the with regard to the
appointment of judges. This calls for bringing up the infamous “judges
transfer cases”5 in S.P.Gupata v. Union of India (judge’s transfer case 1) the
supreme court held that the word consultation did not mean concurrence and
the executive was not bound by the advice given by the judges. Thereby the
power of appointment of supreme court judges and transfer of high court
judges was solely vested in the executive from whose dominance the judiciary
was expected to be free. The power of the president under article 222to
transfer a judge from one high court to another may also be used to undermine
the independence of judiciary. Fortunately post the judges transfer case 26and
the presidential reference7regarding the same, it was held that the
recommendations made by the Chief Justice of India on the appointment of
judges to the SC without following the consultation process are not binding
on the government. It was also said that the consultation process adopted
requires consultation of a plurality of judges, thus the CJI must consult a
collegiums of 4 senior-most judges of the supreme court and made it clear
that “ if two judges give adverse opinion the CJI should not send the
recommendation” 8this case helped tackle a major threat to the judiciary but
in January 2018, four judges - the most senior of supreme court's 25 judges
after the chief justice - circulated a letter accusing Chief Justice Misra of
assigning important cases selectively to benches "with no rationale",
implying that he had sought to influence the outcome, indicating the CJI’s
attempts at allowing political interference in the workings of the country’s
highest court. Justice K.M Joseph attracted the public’s attention by striking
down the imposition of President’s Rule in Uttarakhand. The central
government is said to have retaliated by deciding not to elevate Justice Joseph
5
S.P.Gupta (n 1).
6
S.C.Advocate on record association v Union of India [1993] 2 SCR 659 (SC)
7
Re Presidential reference [1998] 2 SCR 400 (SC)
8
Dr.J.N.Pandey, Constitutional Law of India (54thedn, Central Law Agency, India) 526.
to the Supreme Court stating his lack of seniority, even though in the 2nd
judges transfer case, merit was held as the first ground to be considered before
seniority. The Memorandum of Procedure that was finalised by the Supreme
Court and the government’s unresponsiveness to It was also written about in
the letter.
Further, incidents such as Justice Loya’s death and the silence regarding
probing into his mysterious death while adjudicating on the matter of Amit
Shah’s case regarding of ordering extrajudicial killings when he served as
home minister under Modi in the state of Gujarat raises obvious doubts9
These allegations by some of the most respected and senior most judges of
the supreme court raise concerns regarding the same.
Another instance of intervention came about when the former Andra Pradesh
governor exercised his clemency power over Gowru Reddy, congress man.
The supreme court held that the power to give clemency isn’t unrestricted and
reasons for the grant needs to be clearly explained. Actions under even article
161 and 73(2) that talk about the power of the governor are also subject to
judicial review and that if it hits the separation of powers thereby going
against the basic structure doctrine is bound to be declared unconstitutional.
While interventions needn’t just be political or from a political motive it can
also be intervention in the true meaning of the word which thereby counts as
a major threat to the independence of the judiciary, the amending powers of
the legislature.
The legislature’s attempts at ousting the judicial review powers through an
amendment were repeatedly curbed by the judiciary thereby swerving a
potentially dangerous threat to the judiciary and more importantly the basic
structure of the constitution in cases such as Indira Gandhi v. Raj Narain10
where the 39th amendment act was passed to remove judicial review, a
9
Tehseen S.Poonawalla (S) v Union of India [2018] (SC)
10
Indira Gandhi v Raj Narain [1974] AIR 1889 (SC).
challenge to this appeal was declared unconstitutional . the same goes in the
case of Minerva Mills v. Union of India11 where clauses 4& 5 were added to
article 368 and since the legislature was also supposed to preserve and protect
the basic structure and not destroy it was also unanimously thrown in the
constitutional waste bin.
The width and girth of the enabling power of the judiciary is so scary that its
potential threat to the basic structure is what caused the whole anxiety in the
keshavananda bharti case 12
The major chunk of threat’s arise from and within the aspects of transfer,
appointment and salaries of judges.
Some of the most pertinent questions to be considered are, how is corruption,
misconduct and indiscipline to be dealt with in the higher judiciary? In Justice
Ramaswamy’s case , though the judicial inquiry committee decided against
the impeachment it was politically defeated by the parliament in 1992. Going
further, in Justice Kumar’s case, where the procedure for additional
appointments was done by president in consultation with the chief justice of
India and the chief justice of the concerned high court. In the instant case,
certain small charges were levelled up against the said judge by the chief
justice of Delhi through a letter to the law minister but the question remained
as to whether the allegation shad been communicated to the chief justice of
India. This resulted in the non-appraisal of Justice Kumar. This further
resulted in several questions sprouting up , If two chief justices took divergent
views is it open to the government to choose between one of the views to take
up a certain course of action?, whether the non-continuance of Justice Kumar
was against natural justice as any man needs to be heard before any adverse
action is taken up against him?, whether such charges should be dealt with
11
Minerva Mills v Union of India [1981] 1 SCR 206 (SC).
12
Keshavananda Bharathi v State of Kerala [1973] AIR 1461 (SC).
under prescribed procedures as laid down under judges (inquiry)act so that

frivolous and unsubstantiated allegations does not result in the removal of an
innocent man? And lastly, if the removal of Justice Kumar was found to be
unjust, can the supreme court issue a writ to the union government to
reappoint him?
The answer to these questions would determine the answer for the scope of
powers of the executive in the higher judiciary and its impact on the
independence of judiciary
Another major threat to the judiciary is the non-consensual transfer of judges
or partially consensual transfer under the pretext of punishment or
misbehaviour. This instils a sense of fear in judges and the general public for
an unfavourable judgement towards the government could lead to a transfer
to an undesirable place. On 18 march 1981, upon congress’ return, the policy
to transfer 1/3rd judges from high courts to other states was promulgated13
under the guise of national integration. Justice Bhagawati took the view that
if judges were transferred against their will by the government it would come
off as a serious blow to the independence of judiciary. There were also
incidents where chief justices as well as judges of high courts would be
transferred without any reason specified and was seen as punitive also as a
reprimand if not a punishment as appointment of out-of-state chief justices
were normal.
In K.Veeraswami v. Union of India14 it became pretty evident that there is no
mechanism in the constitution to punish a guilty judge. The motion for the
impeachment of the judge was not because anyone voted against it but
because a whole lot of congress MP’s abstained from voting. Two thirds
majority in the houses of parliament was not to conceal a corrupt judge, and
13
Sankal Chand Himatlal (n 3)
14
K.Veeraswami v Union of India [1991] 3 SCR 189 (SC)
this case has clearly come as a blow for the judiciary than anyone else through
the negative acts of the other organs!
With all that’s said, there are solutions to every problem well established and
could be conceived and adopted by and in the constitution.
Judicial independence through appointment process with judicial
accountability at all levels are pertinent to tackle the potential threats to its
independence. Sincere commitment of the entire bar and bench towards this
is the need of the hour.
The observations of A.P.Shah, C.J. that “Judicial independence is not the
personal privilege of the individual judge, but a responsibility cast on him”,
and “Democracy expects openness…don’t wait for Parliament to compel
judges to disclose assets and undermine judicial independence”.
Certain recommendations to improve judicial independence would be to
establish independent panels to decide judges’ appointments based on merits,
and making salaries reflect magistrates’ experience and performance. Also,
judges should be given limited immunity for actions related to judicial duties
and allegations against them should be carefully investigated by an
independent panel.
Former Chief Justice of Supreme Court, J.S. Verma said “There is no point
is saying that there is no corruption in the judiciary. No one is going to say it
much less accepted. One cannot go on sweeping it under the carpet and not
accept it to show”
New forms of judiciary, partially performing on the political platform, can
no longer be totally shielded by judicial independence from public
accountability. If we want the rule of law values to be effective, new forms
of accountability for the judiciary may be warranted. Transparency, more
efficient delivery of justice openness, and new types of interaction between
politics and judiciary are the way to fix accountability and legitimacy of non-
elected organizations.
The review of all the Judicial Officers at the age of 50, 55 and 60 years for
compulsory retirement by the procedure prescribed by the respective Service
Rules should be undertaken regularly. There should be continuing Committee
of Senior Judges of the High Court headed by the Chief justice for this
purpose of review- State of Assam v. P.C. Mishra15
Therefore in conclusion to answer the question, is the independence of
judiciary as a pillar of democracy under threat, no. it isn’t under threat for the
judiciary and the other organs have proven time and again that the
independence is restored and the basic structure is unharmed. Constitutional
provisions and judicial review has played a huge role in making sure of this.
15
State of Assam v P.C.Mishra [1995] 4 SCR 515 (SC)
IMPACT OF GST ON TAXATION LAW

Kartikeya Gulati*
Impact of GST on Taxation Law
Goods & Services Tax is an Indirect Tax which came as the replacement for
many sorts of Indirect Taxes. The Goods & Services Tax also called GST is
based on a principle of ‘one nation one tax.’ The GST Bill after a long tussle
was finally passed by the Parliament on 29th March 2017 and came into effect
on 1st July 2017. GST was introduced by amending the Constitution for the
101st time. GST has been adopted by around 160 countries in the world.
GST is such a concept which is vast in nature but has a capability to simplify
the giant tax structure and supports one country’s economy to grow
efficiently. GST is a comprehensive Tax which is levied on goods and
services like manufacturing of goods, sales and on consumption goods as well
as services on a national level.1 Under the system of GST, the tax paid by the
consumer is the final tax and there is no other tax on tax paid on inputs which
goes to the manufacturer of goods.
According to the definition of GST, GST is a comprehensive, multi-stage,

destination-based tax which is imposed on every value added. In simple
words, GST is a tax which is levied on the supply of goods and services in
India. Under the GST Law the tax which is imposed, on any goods or services,
is on every point of sale. If the sale is taking place between two or more state
i.e. intra-state then Central GST and State GST will be charged and if the sale
is within the state i.e. inter-state then only the Integrated GST is charged.
* Student, University of Petroleum and Energy Studies, Dehradun

1
Shefali Dani, Impact of Goods and Services Tax (GST) on Indian Economy, BUSINESS
AND ECONOMICS JOURNAL (June 3, 2019, 12:15 PM),
https://www.omicsonline.org/open-access/a-research-paper-on-an-impact-of-goods-and-
service-tax-gst-on-indianeconomy-2151-6219-1000264.php?aid=82626
GST is a consumption based tax and destination principle. Consumption-

based as it is collected from the source or origin of consumption and
destination principle because the traders or producers do not have to take its
burden as it’s not their responsibility to collect the taxes. So GST is a
comprehensive indirect tax which is levied on manufacture, sale, and
consumption of goods and services at the national level.2
FEATURES OF GOODS AND SERVICES TAX

REALM OF GST
GST is an indirect tax which can be imposed on all taxable goods and services
which comes under it and is not imposed on those goods which fall out of its
ambit. There are certain goods on which GST is cannot be imposed. Alcohol
which can be consumed by humans, electricity, and custom duty is part of the
list of exempted goods and services list. Even the petroleum products like
crude oil, natural gases, diesel, petrol and aviation turbine fuel are also a part
of the exempted goods and services list unless and until their inclusion is
announced by the GST Council. Even though the alcohol meant for human
consumption is exempted Tabaco products are included in the list of items
over which GST is applicable. On Tabaco products, GST is chargeable along
with central excise tax.
IMPOSITION AND COLLECTION OF GOODS AND SERVICES TAX

The law making the power of taxation on goods and services lies in the hands
of Union and State Governments. While drafting any taxation law, either by
Union Government or State Government, both the Governments has to keep
2
CA Vishal Raheja, What is GST? Goods And Services Tax Explained With Benefits,
TAXMANN (May 15, 2019, 05:15 PM),
https://www.taxmann.com/blogpost/2000000048/what-is-gst-goods-and-services-tax-
explained-with-benefits.aspx
in mind that they don’t overrule each other i.e. any rule or law made by Union
on GST shall not overrule a State GST rule or law. The law of GST has two
components CGST and SGST which is collected by Central Government and
State Government respectively. Under the GST regime, there is also another
component called IGST which is levied on goods and services when the
trading is taking place between two states. IGST also includes imports and
the tax is collected by the Central Government and is then distributed to
imported states later keeping in mind that GST is a destination based tax. The
proportion in which the GST will be distributed between the Central
government and State Government will be decided through the
recommendations given by the GST Council.
GOODS AND SERVICES TAX COUNCIL

The Goods and Services Tax Council was set up on the recommendation of
President and is supposed to be chaired by the Finance Minister of the
country. The composition of the GST Council shall have two-thirds
representation from the side of States and one-third representation from the
side of Central. The Council shall constitute the Minister who is in charge of
revenue and the Minister who is in charge of finance or taxation or any such
field which is nominated by the State Governments. The decision given by
the Council shall sustain only if it is given in the presence of the required
quorum i.e. 50% of the total members and is passed with the three-fourths
majority votes of the total votes cast.
The Goods and Services Tax Council can also act as a Dispute Redressal
Authority if any dispute arises. The Council can also make certain
recommendations on the following aspects:
• Taxes, surcharge, cess of central and states which will be integrated

into GST
• Goods and services which may be exempted from GST
• Interstate commerce – IGST- the proportion of distribution between
state and center
• Registration threshold limit for GST
• GST floor rates
• Special rates during calamities
• Provision with respect to special category states especially northeast
states. 3
ADDITIONAL TAX OF 1%
Under the regime of GST Law, an additional tax of 1% is levied on the
interstate taxable supply of any goods and services. This additional tax of 1%
is levied by Central Government directly on the State which is doing the
export i.e. origin state. This tax is directly imposed on origin state as GST is
supposed to be a destination tax. The additional tax of 1% is to be charged for
a period of two years. The time period can further be extended for a longer
time as recommended by the GST Council.
COMPENSATION TO STATES
GST implementation has caused losses to the revenue generation by States to
overcome the loss suffered by the States the Central Government will pay
them compensation for the losses incurred. The amount of compensation to
be paid shall be on the recommendation of the GST Council. The maximum
period decided for the Central Government to pay compensation to the States
3
Monika Sehrawat, GST In India: A Key Tax Reform, INTERNATIONAL JOURNAL OF
RESEARCH-GRANTHAALAYAH, (June 3, 2019, 02:05 PM),
http://granthaalayah.com/Articles/Vol3Iss12/15_IJRG15_C12_76.pdf
is five years after the completion of this period State will have to manage
from the revenue generated by them.
IMPACT OF GST ON TAX STRUCTURE

The taxation policies adopted by any country plays an important role in
progress and development. It has a direct impact on the country’s economy
with regard to efficiency and equity. Taxation policy adopted shall be a good
one as the income distribution depends on it. Also, the revenue collected from
the tax will lead to benefit the country’s infrastructure policies, defense
policies, country’s exports, public security and general amenities to the
public.
The taxation system in India before GST encompassed of 25 different types
of taxes at three levels- Central, state and local. The Central government used
to collect taxes in the form of excise duty, central sales tax, and customs duty.
The state used to collect taxes like VAT, Octroi, entertainment tax and
purchase tax.
The major change that GST regime has brought in with it is that it has clubbed
lot many such indirect taxes into one this will help in mitigating the double
taxation, cascading, the multiplicity of taxes, classification issues, taxable
event, and etc., and leading to a common national market.4 The taxation
system of India from multiple numbers of indirect taxes applicability has
come down to three types of indirect taxes i.e. CGST, SGST, and
IGST. However, the Central Sales Tax is still chargeable for Inter-state
purchase of certain Non-GST goods, mentioned below, at a concessional rate
of 2%, by issue and utilization of c-Form
(i) Petroleum crude;
4
Supra note 2
(ii) High-speed diesel;

(iii) Motor spirit (commonly known as petrol);
(iv) Natural gas;
(v) Aviation turbine fuel; and
(vi) Alcoholic liquor for human consumption. in respect of the
following transactions only:
• Resale
• Use in manufacturing or processing
• Use in the telecommunication network or in mining or in the
generation or distribution of electricity or any other power5
IMPACT OF GST ON TAX INCIDENCE

• E-commerce- Before the GST regime came into force the previous
indirect tax regime has a non-uniform structure for VAT across the
state this has led to VAT arbitrage. This structure will come to an end
under the GST regime. Also, under GST the credit of service tax and
credit of VAT is restricted only cross credit utilization is allowed
because this reduces the cost of supplies.
• Consumer goods- the previous tax rate of consumer goods used to
vary in between 25% to 27% under the old indirect tax system. The
current tax rate of goods has come down to somewhere in between
18% to 20%. This reduction in the tax rate is the result of the
elimination of multiple indirect taxes.
• Banking- the banking services have become costlier with the
inception of GST law. As the tax rates have increased from 14.5% to
somewhere in between 18% to 20%. The financially weaker section
and consumers’ investment pattern are affected because of this
5
What is GST in India?Goods & Services Tax Law Explained, CLEARTAX (May 15, 2019,
05:15 PM), https://cleartax.in/s/gst-law-goods-and-services-tax
increase as the interest on loan rate and trading on securities has come
under the purview of GST.
• Telecom- the telecom services under GST has also seen the rise as the
tax rate under GST has risen from 15% to around 18% to 20%. This
will cause an increase in mobile calls charges and in any other services
related to telecoms like internet access and messaging services.
• Automobile- the automobile sector saw a decrease in the tax rate from
in between 25% to 40% to somewhere in between 18% to 20% which
has significantly impacted the prices of final products.
• Real estate- the tax collection under this sector before GST
enforcement was highly dependent on indirect taxes of stamp duty,
VAT and service tax but since the GST regime came into force the
VAT and service tax has been eliminated. This reduces the tax burden
on the purchaser and seller.
IMPACT OF GST ON TAX COMPLIANCE

GST came into force from 1 July 2017. Before GST, the taxation system had
multiple taxes on the same product but after GST the taxation system has been
simplified and is aligned with a robust IT system creating a user-friendly tax
administration system. This new method makes tax compliance transparent
and encourages taxpayers to comply within different sectors
• Telecom Sector- in order to comply with the perspective of GST
regime the telecom sector had to adopt state wise registration than
centralized registration. This has also increased their cost of
compliance.
• E-commerce- the GST has brought in the proviso of tax collection at
source for the e-commerce operators regarding the goods sold by them
through their online portals. This proviso had significantly increased
the tax compliance burden on the industry.
• Banking- the tax compliance burden under this sector had seen a shift
from the centralized compliances to the decentralization of
compliances to different states.
• Automobile- before the implication of GST regime there were
multiple taxes, like excise duty, VAT/CST, entry tax, octroi, imposed
on automobiles. After GST compliance burden in this sector has
reduced as GST has subsumed all the above mention taxes.
IMPACT OF GST ON TAX PAYMENT

GST Law introduction in India is considered as a significant step in the
reformation of the taxation system of India. The tax payment system under
the GST regime is divided into three types which are CGST, SGST, and
IGST. CGST and SGST are paid when the supply of goods is intra-state i.e.
between two or more different states and IGST is paid when the supply of
goods is inter-state i.e. within the boundaries on the state.
The tax is supposed to be paid either at the time when payment for the goods
or services is received or issuance of an invoice in the same regard is received
or at the time when the supply of goods and services is completed. The GST
which is to be paid can either is paid by debiting the credit ledger or in cash
by debiting the cash ledger which is maintained on a common portal and the
taxpayer had made a payment on a monthly basis.
Impact of GST on Business:-

GST increased the compliance requirements for the Micro, Small, and
Medium Enterprises (MSME) sector or financial services providers like non-
banking finance corporations (NBFCs), the benefits of the tax reform will be
particularly substantial for the sector in the long term.
One such development with the tax reform that will deliver not only long-
term but also short-term benefits is that the GST system operates based on a
strong technological foundation. Here are some of the key benefits of the tax
system for the business ecosystem:
GST has eliminated the cascading effect of tax
The Goods and Services Tax brings all indirect taxes under a single ambit as
a comprehensive tax structure. This means the cascading effect of taxes, or
the ‘tax on tax’ effect, which was a huge burden to businesses in the previous
regime, will no longer be a problem.
The threshold for registrations are higher
Previously, in the Value Added Tax (VAT) structure in most states,
businesses having a turnover upwards of Rs 5 lakh incurred VAT. This limit
also varied from one state to the other, while service providers having a
turnover of less than Rs 10 lakh were exempt from paying service tax.
However, under the GST regime, the threshold is higher, with small traders
and service providers with a turnover of less than Rs 20 lakh being exempt
other than some North Eastern States.
Small businesses benefitting from composition scheme
Under the GST, smaller trading concerns and service providers with a
turnover of upto 1.5 crore can benefit from the Composition Scheme, wherein
taxpayers with lower liabilities can avoid complex processes and pay GST on
a fixed turnover rate.
Online procedures have made compliance simpler
The entire process of registering for GST to filing returns has been shifted
online, making it extremely simple and efficient. This has particularly been
advantageous to SMEs and smaller startups, which no longer need to spend a
huge amount of time, money, and effort to acquire licenses or register for
multiple taxes such as VAT or excise duty.
Further, the previous indirect tax system had no provision for SMEs to avail
credit on the value-added tax paid on capital goods, the cost of which was
borne by the company. However, under the GST regime, SMEs, smaller
NBFCs, and various other entities dealing in goods and services can avail
credit on input tax paid on the supply of goods as well as services.
Impact of GST on NBFCs in India
During the previous indirect tax regime, lending services facilitated by
NBFCs were largely exempted from the purview of indirect taxes. There were
only a few services on which a centralised service tax was levied, irrespective
of where in India the services were rendered from. This has changed with the
implementation of the GST regime since NBFCs are required to register their
business in each state where they offer these taxable services. Some of the
changes that NBFCs have seen with GST include:
• Under the previous regime, NBFCs were liable to pay 15 percent tax on
certain services rendered, which following the implementation of GST has
risen to 18 percent.
• Before GST, NBFCs could register their business centrally. However, with
GST, they need to register in each state where they are present.
• If NBFCs engage in the inter-state supply of services between same entity
branches, they will attract IGST.
• The number of GST returns to be filed are 25 for each state, and 61 returns in
case of ISD and TDS provision are applicable.
Further, the implementation of GST has also increased the billing and
compliance requirements, and now necessitates additional documentary
evidence as well as monthly compliances for multiple locations, as compared
to the indirect tax regime. However, with the GST governance framework
incorporating information technology (IT) systems for compliance and filing
returns, NBFCs can ensure smoother workflows and quicker reporting by
automating the filing process.
On the other hand, GST will also significantly impact the evaluation
processes, since service tax was assessed by the regulating authorities in the
state where the company’s branch was registered. Additionally, each
registered branch of the NBFC had to validate its position for the charge-
ability in the respective state and provide a reason for utilising the input tax
credit in various states.
It is anticipated the GST could potentially transform the Indian economy,
allowing businesses and corporations in the country to augment their overall
efficiencies. Furthermore, a unified domestic market will create far greater
opportunities for businesses in terms of their ability to expand anywhere in
the country. At the same time, it will also provide them with the benefit of
lesser production costs, thereby boosting their profitability in the long term.
CONCLUSION
Goods and Services Tax is a comprehensive, multi-stage, destination-based
tax which is imposed on every value added. In simple words, GST is a tax
which is levied on the supply of goods and services in India. It replaced
India’s old multiple indirect taxation system. GST regime in India was
brought in to maintain a transparent and corruption-free taxation system. GST
is has been adopted by around 160 countries. When GST was adopted by
India one of the major concerns was whether India will also be a victim of the
rise in inflation rate like other countries who follow a single tax regime. But
India proved to be the exception of the rise in inflation trend. Implementation
of GST in India did not hike its inflation rate.
Due to the falling apart environment of the Indian economy, it is a mere need
of time for implementation of Goods and Services Tax in India. The
consumption and production of goods and services are increasing day by day
and due to which the taxes under the older regime was increasing too and the
whole taxation system was getting more and more complex. With GST there
will be one nation one tax and the complexity which was being faced under
the older regime be eliminated.
GST implementation has proved itself to be the necessary change required in

the taxation system. With the GST regime in action, the hidden taxes system
is also abolished and the rate of taxes for many goods and services has come
down. GST law is a user-friendly taxation system which aims at providing a
transparent taxation system. Implementation of GST has allowed India to
negotiate its terms and conditions in a better manner while dealing in
international trade forums. GST has aimed at increasing the taxpayer’s
numbers in the country which under the old regime were tax evaders.
There is no doubt that the implementation of the GST law will provide India
with a world-class taxation system by providing different treatments to the
manufacturing sector and service sector. GST has affected many sectors in
the economy by the way of taxation, in some sectors, the taxation rate has
raised and in some sectors, the rate of tax is dropped. Overall GST is
considered to be a positive move which has evaded the complexities in the
taxation system of India.
CYBER SURVEILLANCE & DATA PRIVACY LAW : THE

RECONCILIATION
Pankaj Kumar Sharma*
INTRODUCTION :
Over the past two decades, the evolution of cyberspace has impacted almost
every aspect of human life. The increase in the speed, volume, and range of
communications that cyberspace offers has undeniably affected the way
societies interact.1 Although the Charter of Fundamental Rights of the
European Union distinguishes the right to privacy and the right to data
protection as two different fundamental rights, this is more in the nature of a
formal distinction.2 Scholars in the field opine that the right to data protection
has been characterized by strong links to the right to privacy.3 Today, privacy
is more widely discussed among academics, policy analysts, and journalists4
than it was when Uneasy Access was published in 1988. At that time, privacy
was still an emerging concern. To be sure, federal and state lawmakers had
been steadily expanding privacy protections for data and communications
since the mid-19705 in response to threats posed by computer and
surveillance technologies.5 The concept of privacy is a multi-dimensional
one, yet scholars across time and space have attempted to confine it to a single
definition. Warren and Brandeis in their seminal essay enunciated that the
right to privacy was based on a principle of “inviolate personality”, thus
*Law Scholar, the ICFAI University, Dehradun

1
Liaropoulos, A. A Human-Centric Approach to Cybersecurity: Securing the Human in the
Era of Cyberphobia, 14, JOURNAL OF INFORMATION WARFARE, 15, 15 (2015).
JSTOR
2
Raphael Gallert and Serge Gutwirth, The Legal Construction of Privacy and Data
Protection, 29(5), COMPUTER LAW AND SECURITY REVIEW 522, 524, (2013). JSTOR
3
GLORIA GONZALES FUSTER, THE EMERGENCE OF PERSONAL DATA
PROTECTION AS A FUNDAMENTAL RIGHT OF THE EU, Chapter 5 (2014)
4
See. e.g. AMITAI ETZIONI, THE LIMITS OF PRIVACY 1-2 (1999) (noting the current
agitation about protecting privacy).
5
See MARC ROTENBERG, THE PRIVACY LAW SOURCEBOOK I999, at 1-I73 ( l 999)
(identifying ten federal privacy statutes enacted between I970 and 1988 and four additional
privacy stalutes enacted through 1999).
laying the foundation for a concept of privacy, which we understand as

control over one’s own information.6
INSTRUMENTS OF PRIVACY CONCERN IN CYBERSPACE
The privacy principle was already a part of common law and the protection
of one’s home as one’s castle, but new technology made it important to
explicitly and separately recognise this protection under the name of privacy.7
The issue of data protection, especially unauthorised data access, though
traditionally unprioritised, has recently gained much traction due to the
increasing number of news reports regarding various instances of
unauthorised data access as a threat to individual privacy. In the case of
unauthorised data access, more than the frequency of the instances, it is their
sheer magnitude that has shocked civil society and especially civil rights
groups. The whole idea to frame cyber surveillance provision i.e. sec 69 of IT
Act is derived from section 5(2) of the Indian Telegraphs Act 1885 legislated
by British government. Section 5(2) of the Telegraphs Act states the grounds
of Public emergency and the Interest of public safety, on the occurance of
which transmissions can be intercepted and detained for the interests of the
sovereignty and integrity of India, the security of the State, friendly relations
with foreign states or public order or for preventing incitement to the
commission of an offence. when section 69(1) of IT Act was drafted, it had
absolute acquaintance with the said provision. But after the enforcement IT
Act amendment act 2009, its scope was enlarged by adding one more ground
i.e. 'investigation of any offence' to intercept, monitor or decrypt any
computer resource.
6
SHRADDHA KULHARI, BUILDING-BLOCKS OF A DATA PROTECTION
REVOLUTION: THE UNEASY CASE FOR BLOCKCHAIN TECHNOLOGY TO
SECURE PRIVACY AND IDENTITY, 23, (2018). JSTOR
7
Samuel Warren and Louis Brandeis, The Right to Privacy, 4, HARVARD L.J. (1890) [as
cited in Judith DeCew, Privacy, The Stanford Encyclopedia of Philosophy, Spring 2015
<https: plato.stanford.edu/archives spring2015 entries privacy > accessed on 11 July 2019
Further on 20 December 2018, the Ministry of Home Affairs issued an order

granting authority to 10 Central agencies, to intercept and monitor individual
computers and their receipts and transmissions under powers conferred on it
by sub-section 1 of Section 69 of the IT Act, 2000, read with Rule 4 of the IT
(Procedure and Safeguards for Interception, Monitoring and Decryption of
Information) Rules, 2009”.8
EFFECT OF IT AMENDMENT ACT, 2009 :
the amendment of this provision lies in the inclusion of the term “for
investigation of any offence”. By including the term, scope of the law
increases many more times because eventualities covered under the five
conditions of Indian Telegraph Act are far less than the eventualities covered
under the additional sixth condition of IT Act, simply because there are lakhs
of cases under investigation.9 This issue widely emerged among the citizens
that made a law student to file a PIL in the Allahabad High Court to challenge
the constitutional validity of sec 69.10
EFECT OF IT (PROCEDURE & SAFEGUARDS FOR
INTERCEPTION, MONITORING & DECRYPTION OF
INFORMATION) RULES, 2009 :
The important aspect regarding the rules is that an individual may not even
know if her electronic communications are being intercepted or monitored. If
such surveillance comes within her knowledge, due to the obligation to
8
http://egazette.nic.in/WriteReadData/2018/194066.pdf
9
Ram Narain, Sec 69 of the IT Act: Fears of violation of privacy may not be unfounded,
HINDUSTAN TIMES, (July 11, 2019, 01:51 PM),
https://m.hindustantimes.com/editorials/sec-69-of-the-it-act-fears-of-violation-of-privacy-
may-not-be-unfounded/story-CLqIDix78GTVpHSqaaMJaO_amp.html
10
https://barandbench.com/wp-content/uploads/2019/01/Saurabh-Pandey-v-UOI-PIL.pdf
maintain confidentiality and provisions in the Official Secrets Act 192311, he

would not be able to know the reasons for such surveillance.12
Also, the time period within which such intercepted data can be retained with
the government agency, is up to 60 days which may extend to 180 days as per
Rule 11, IT (Procedure and Safeguards for Interception, Monitoring and
Decryption of Information) Rules, 2009.13 The said rule certainly legitimizes
“Continuous Surveillance” in every respect.
POLITICAL ASPECT:
In a democratic country such as India, there can be a possibility that
provisions enforcing cyber surveillance might be invoked for political gains
of bureaucrats to intercept and monitor the data of the 'individuals interested
in opposition party'. The political history of India is evident of the fact that
powers conferred by constitution are covertly misused for self-interest. The
national emergency of 1975 is sufficient to indicate such malicious intention.
It is a matter of hypocrisy that on one hand the government has drafted the
Personal Data Protection Bill, 201814 to ensure safety of individual privacy
from third party interception, and on the other hand the Ministry of Home
Affairs intends to mass cyber surveillance by issuing notification to grant
powers to 10 enforcement agencies in the same year. Also, there is no
provision in the said bill that authorises government agency to process data
‘for investigation of any offence’ unlike section 69 of IT Act. This
11
Section 5(2) of the Official Secrets Act, 1923 - If any person voluntarily receives any secret
official code or pass word or any sketch, plan, model, article, note, document or information
knowing or having reasonable ground to believe, at the time when he receives it, that the
code, pass word, sketch, plan, model, article, note, document or information is communicated
in contravention of this Act, he shall be guilty of an offence under this section.
12
Anita Gurumurthy, Are India’s laws on surveillance a threat to privacy?, THE HINDU,
(July 12, 2019, 02:10 PM), https://www.thehindu.com/opinion/op-ed/are-indias-laws-on-
surveillance-a-threat-to-privacy/article25858338.ece/amp/
13
Period within which direction shall remain in force.— The direction for interception or
monitoring or decryption shall remain in force, unless revoked earlier, for a period not
exceeding sixty days from the date of its issue and may be renewed from time to time for
such period not exceeding the total period of one hundred and eighty days.
14
https://www.meity.gov.in/writereaddata/files/Personal_Data_Protection_Bill,2018.pdf
contradiction indicates towards the prospective threat to law enforcement of

the country.
STATUS OF RIGHT TO PRIVACY IN INDIA
India is a signatory to the Universal Declaration on Human Rights and the
International Convention on Civil and Political Rights. Article 1215 of the
former and Article 1716 of the latter recognize privacy as a fundamental right.
Though a member and signatory of these conventions, India does not have
laws which provide a right to privacy to citizens. For the purpose of filling
this lacuna in the law, the Courts in India have tried to enforce a right to
privacy to its citizens through two manners, Firstly, recognition of a
constitutional right to privacy which has been read as part of the rights to life
and personal liberty embedded in Art. 21 of the constitution.17 Secondly, a
common law right to privacy which is available under tort law and has been
borrowed primarily from American jurisprudence. It must be mentioned at
the outset that the privacy is not a very strongly enforced right in India and
there are a number of exceptions to the right to privacy which have been
carved out by the Courts over a period of time.18
the overly broad contours of the proposed amendment to the Intermediary
Rules confer unchecked powers on the executive, reminiscent of the
arbitrariness that led to the famous Shreya Singhal case.19 In the absence of
judicial or legislative oversight, such powers result not only in a
15
Art. 12 of UDHR - No one shall be subjected to arbitrary interference with his privacy,
family, home or correspondence, nor to attacks upon his honour and reputation. Everyone
has the right to the protection of the law against such interference or attacks.
16
Art. 17 of ICCPR - No one shall be subjected to arbitrary or unlawful interference with his
privacy, family, home or correspondence, nor to unlawful attacks on his honour and
reputation.
17
K. S. Puttaswamy v. Union of India, Writ Petition (Civil) No. 494 of 2012 (Sup. Ct. India
Aug. 24, 2017).
18
https://cis-india.org/internet-governance/blog/state-of-cyber-security-and-surveillance-in-
india.pdf/view
19
Shreya Singhal v. Union Of India [AIR 2015 SC 1523]- The Supreme Court struck down
Section 66A of the IT Act, 2000, as unconstitutional on grounds of violating Article 19(1)(a)
of the Constitution of India.
disproportionate restriction on individual fundamental right to privacy, but

also have far-reaching consequences for other freedoms - a chilling effect on
the freedom of speech and association and democratic participation. cyber-
security experts caution that it’s not possible to create a “back door”
decryption to target one individual, and that tampering with encryption can
compromise security for all.20 The anonymity of internet allows all of us to
live duplicitous life. More easily and potentially more successfully than in the
past.21
Although the Idea of unlimited state sovereignty today is no longer
undisputable, the pivotal obligation of a state to protect its citizen’s security
makes the right to do so one of the bedrock feature of this concept.22
RISING NECESSITY OF CYBER SURVEILLANCE BY THE STATE
Even though unintended encroachment to data privacy, the primary object of
cyber surveillance has been the protection from cyber-security threats. The
cyber security discourse is predominantly shaped by the notion of national
security. Cases such as the cyber-attacks on the online banking system in
Estonia, the defaced government websites in Georgia, and the use of the
Stuxnet worm to harm Iran‘s nuclear program demonstrate the importance
and the increasingly crucial role of cyberspace for national security. As a
result, states have defined cyber-security in their military and security
doctrines as a new domain of conflict.23 Cyber security concern is now indeed
indispensable because of the increased pervasiveness of technology in our
society.
Apart from conventional military based external force, cyberspace has
become an equivalent modern platform which questions the security of a
20
Supra note 19
21
Allen, Anita L. Gender and Privacy in Cyberspace, 52, STANFORD L.R., 1175, 1195
(2000). JSTOR
22
Dominik Eisenhut, Sovereignty, National Security and International Treaty Law, 48,
ARCHIV DES VÖLKERRECHTS, 431, 431, (2010). JSTOR
23
Supra note 2
state. In the era of cyber warfare, the security and sovereignty of a state in the
cyber space plays a significant role in protecting its citizen from external
cyber security threats. It is the duty of a responsible sovereign state to apply
all the possible measures to ensure the safety of its masses. Sometimes for the
purpose of preventive measures or for investigation of any offence that
challenges the integrity and sovereignty of state, it becomes necessary for the
state to take into account the data of citizens. Since criminal activities also
have become digitized, law enforcement must visibly patrol the Internet. In
addition, the police may need to operate covertly. To investigate serious crime
and predict crime or terror attacks, predictive analysis, access to social media
accounts and big data analytics could provide significant aid for law
enforcement.24 For this purpose, section 69 of IT act regulates the actions of
cyber surveillance by government agencies to the data of citizens.
PREVENTION OF MISUSE OF CYBER SURVEILLANCE
PROVISION:
With the advent of state interference in individual privacy, the data protection
concerns take place with sufficient cause. It is indeed necessary to prevent the
misuse of cyber surveillance law because these laws contain sufficient
instruments to infringe the data privacy laws. Keeping in view the prospective
misuse of section 69, the central government made the rules under
Information Technology (Procedure and Safeguards for Interception,
Monitoring and Decryption of Information) Rules, 2009.
Rule 3 of this regulates the scope of power conferred to government agencies
so as to avoid the arbitrariness and provides the prerequision of an order by
the competent authority to intercept and monitor individual data. For this
purpose “competent authority” contains (i) the Secretary in the Ministry of
24
Stephanie K. Pell and Christopher Soghoian, Your Secret Stingray's No Secret Anymore:
The Vanishing Government Monopoly over Cell Phone Surveillance and Its Impact on
National Security and Consumer Privacy, 28, HARVARD J. LAW & TECH, 1-35 (2014).
JSTOR
Home Affairs, in case of the Central Government; or (ii) the Secretary in

charge of the Home Department, in case of a State Government or Union
territory, as the case may be. The role of the Review committee under Rule
22 is quite significant: The committee shall sit at least one in two months in
order to check any arbitrariness in the exercise of these powers and setting
aside the directions which contravenes the provisions of these rules. Also,
Rule 24, prohibits unauthorised persons to intercept or monitor individual
data, failing which may punish them under relevant provisions of IT Act. As
per Rule 25, Even if such data is processed with authorisation it can’t be
disclosed by intermediary to any person other than the designated officer.
It is indispensable to note that these rules indicates the intention of the state
to exercise cyber surveillance in such a manner that violation of individual
privacy in minimum.
PREFERENTIAL TREATMENT TO CYBER SURVEILLANCE :
A Government which abdicates its responsibility has no right to be in the
Government. A Citizen who wants the Government to abdicate its duty is
himself failing in his duty as a citizen. The Constitution of India guarantees
every citizen the right to life and personal liberty under Article 21. The
Supreme Court, in Justice K.S. Puttaswamy v. Union of India25 ruled that
privacy is a fundamental right. But this right is not unbridled or absolute. The
Central government, under Section 69 of the Information Technology Act,
2000, has the power to impose reasonable restrictions on this right and
intercept, decrypt or monitor Internet traffic or electronic data26
If, in a case, a law confers the preferential treatment to right to privacy over
cyber surveillance by state, the aftermaths are not favourable to the security
of the state as a whole. In that condition there has to be sufficient amendment
in other laws including IPC or POTA to enforce such law and this would
25
Writ Petition (Civil) No. 494 of 2012 (Sup. Ct. India Aug. 24, 2017).
26
Supra note 19
make India a haven for Criminals, Naxalites and Terrorists. It will prevent
Police from undertaking any search or preventive arrests, impose restrictions
on public for prevention of offences etc., since all such provisions will be
restrictive of the Right to Privacy in one sense.27 Those who swear by the
constitution has to swear by the “Primacy” of “We the People” and cannot
ignore the security of people even before worrying about providing guarantee
of the Right to Privacy.28
RECOMMENDATIONS TO RECONCILE THE PRIVACY
CONFLICT :
The intricate challenge is that in-between the surveillance and the privacy
lays the personal data—the new gold from a commercial perspective, a
resource in the fight against terrorism from a security perspective, and a future
threat of human rights from an individual perspective. There is no simple
solution to the paradox.29
Laws enforcing Cyber surveillance and individual’s data privacy are two
sides of a coin. In every case, one would overshadow another. hence the
conflict is inevitable. It can be deduced that legal flexibility of conflicting
points shall be the possible reconciliation, that’s presented as below:
1. As per Rule 7 of Information Technology (Procedure and Safeguards
for Interception, Monitoring and Decryption of Information) Rules,
2009, every direction issued by competent authority to intercept or
monitor individual’s data shall contain the ‘reasons’ for such
direction. It is recommended that such ‘reasons’ should be
communicated to the person whose data is to be intercepted or
monitored, through reasonable means of communication. Provided
27
https://www.naavi.org/wp/allahabad-high-court-admits-pil-against-section-69-notice-2/
28
Ibid
29
Hagen, Janne, and Olav Lysne. Protecting the Digitized Society—the Challenge of
Balancing Surveillance and Privacy, 1, THE CYBER DEFENSE REVIEW, 75, 87, Spring
(2016). JSTOR
that, the government may ascertain a specific category of “persons

with excessive degree of suspicion” regarding whom the government
agencies need not bound by the aforementioned rule. For instance-
habitual offenders or proclaimed offenders. This may probably act as
sufficient justification for breach of data privacy.
2. It is recommended that government agencies shall have access to any
category of data except that of “Genetic data” as defined in section
3(20) of the Personal Data Protection Bill, 2018.30
Provided that, the government may ascertain a specific category of
“persons with excessive degree of suspicion” regarding whom the
government agencies shall not bound by the aforementioned rule. For
instance- habitual offenders or proclaimed offenders.
The sole rationale for the presented recommendation is that, the uniqueness
of genetic information, it is contended, entitles it of greater privacy protection
than other types of information.31 The dilemma for privacy advocates is not
simply the almost inexhaustible opportunities for access to data but also the
intimate nature of those data and the potential for harm to persons whose
privacy is violated. Against this backdrop of increasing use of genetic
information, scholars, legislators, judges, and the public have asserted that
genetic information is entitled to additional levels of privacy protections
because it is virtually unique among health-related data.32
30
“Genetic data” means personal data relating to the inherited or acquired genetic
characteristics of a natural person which give unique information about the behavioural
characteristics, physiology or the health of that natural person and which result, in particular,
from an analysis of a biological sample from the natural person in question.
31
Gostin, Lawrence O., and James G. Hodge. “Genetic Privacy And The Law: An End To
Genetics Exceptionalism, 40, JURIMETRICS, 21, 23, (1999). JSTOR
32
Ronald M. Green 8: A Matthew Thomas, DNA' F W: Distinguishing Features for Policy
Analysts: ll HARVARD J. LAW & TECH, 57 (1998). JSTOR
RIGHT AGAINST SELF INCRIMINATION: A PRIVILEGE

FOR THE VICTIMS
Suryaprava Basu*
INTRODUCTION
Part III of the Indian Constitution provides all Indian citizens with the basic
Freedoms. The Freedoms are incorporated from Article 19 to Article 22.
Article 20 states that citizens of India shall be protected in respect of
conviction of offences committed. Article 20 (1) states that “No person shall
be convicted of any offence except for violation of a law in force at the time
of the commission of the act charged as an offence, nor be subjected to a
penalty greater than that which might have been inflicted under the law in
force at the time of the commission of the offence.” Section 20 (2) states that
“No person shall be prosecuted and punished for the same offence more than
once.’” and section 20 (3) states that “No person accused of any offence shall
be compelled to be a witness against himself.”1
There can be no physical or moral compulsion on the accused to derive the
desired confession. If the compulsion is proved then that confession shall
stand rejected by the Court. This privilege enables the maintenance of human
privacy. It goes with the maxim Nemo Tenetur Seipsum Accusare that is, “No
man, not even the accused himself can be compelled to answer any question,
which may tend to prove him guilty of a crime, which he has been accused of
”or that “No man is obliged to be a witness against himself.” According to
Black’s Law Dictionary, a declaration or an act that occurs during an
investigation where a person or witness incriminates themselves either
explicitly or implicitly is known as self-incrimination. In simpler words, it is
* Student, Amity Law School ( Amity University, Kolkata)

1
The Constitution of India, 1950, art. 20
the act of implicating or exposing one’s own self by disclosing relevant facts
and confessing crimes leading to the criminal prosecution of himself.2
In the case of M.P. Sharma v. Satish Chandra3, the Supreme Court observed
the following essentials of this right :
• It is a victim’s right, that is for a person who is “accused of an
offence”.
• It protects the accused against compulsion “to be a witness”
• It protects the accused against compulsion relating to his giving
evidence “against himself”.
Accused of an offence
The meaning of the word “accused” has been provided in the case of Narayan
Lal v. M. P. Mistry4, Dalmia v. Delhi Administration5 and also in K. Joseph
v, Narayana6. This right is for a person against whom an accusation relationg
to an offence has been levelled which in normal course will result to his
prosecution and conviction. In M. P. Sharma v. Satish Chandra7 it was held
that this protection is for people who in the F.I.R. by police are mentioned as
accused. In Delhi Judicial Service Association v. State of Gujarat8, it has
been held that mere issue of notice of pendency of contempt proceedings does
not attract Article 20(3) as the contemners are not accused of any offence.
In short Article 20(3) will only be attracted if the proceeding starts with an
“accusation”. 9
2
Supra. 4
3
Supra. 5
4
AIR 1961 SC 29
5
AIR 1962 SC 1821
6
AIR 1964 SC 1552
7
Supra. 5, 8
8
(1991) 4 SCC 406.
9
Veera v. State of Maharashtra, AIR 1976 SC 1167 (para. 9)
To be a witness.
Article 20(3) is also a protection for the accused “to be a witness” against
himself. No questions can be asked to the accused by the police whose
answers might incriminate himself.10
Previously in the case of M. P. Sharma v. Satish Chandra11, it has been held
that Article 20(3) serves as a shield against oral, documemtary and
testimonial evidence. Since the Indian Evidence Act states that “a witness” is
a person who does not merely give oral evidence but also produces documents
or shows intelligible gestures as in the case of a dumb witness. Hence the
compulsory taking of finger impressions or specimen handwriting of the
accused would come under this Article as well12 but in the case of State of
Bombay v. Kathi Kalu Oghad13, the Supreme Court held that “to be witness”
does not have a scope as broad as mentioned in Sharma’s Case. It was stated
here that self-incrimination only means conveying information based upon
own personal knowledge of the person giving information and cannot include
the mechanical process of producing documents in court , therefore when a
person gives his finger print or specimen handwriting, it is not included within
the expression “to be a witness”. Later in the case of State v. M. Krishna
Mohan14, the Supreme Court upheld the judgement of State of Bombay v.
Kathi Kalu Oghad that, specimen handwriting, fingerprints or signature of
the accused can be taken and it does not fall under the scope of Article 20 (3)
and thus is not prohibited.
In the state of Parshadi v. U. P. State15, the accused who was charged for
committing a murder, produced the clothes of the deceased to the police
10
Balasaheb v. State of Maharashtra, AIR 2011 SC 304.
11
Supra. 5,8, 12
12
Dr. J. N. Pandey, Constitutional Law of India 248 (Central Law Agency, Calcutta, 53rd
edn., 2016).
13
AIR 1961 SC 1808
14
AIR 2008 SC 368
15
AIR 1957 SC 211
which he had placed in a pit. Thus the Supreme Court held that the statement
of the appellant was admissible in evidence.
Compulsion to give evidence “against himself”.
Article 20(3) only includes the compulsion of accused to give any evidence
“against himself”. In the State of Bombay v. Kathi Kalu Oghad16, it was held
that requests don’t fall under compulsion, therefore any evidence provided
after requesting the accused shall be admissible against himself. Compulsion
is duress: it should be a physical act and not merely blackmailing emotionally
the state of mind. Compulsion is ought to be like beating, threatening,
imprisonment of wife, parent, child, or any family member of a person.
Article 20(3) does not apply if a person makes a confession without any
inducement or threat.
In Yusufali v. State of Maharashtra17 it was held that a tape recorded by the
accused without his knowledge but also without any form of force and
coercion is admissible in Court as evidence. In VS Kuttan Pillai v. Ram
Krishnan18, the Court held that the search of the premises of the accused is
not violative of Article 20(3) of the Constitution and any document can be
produced in the court as an evidence against the accused, if such document is
found from such search and seizure. In Amrit Singh v. State of Punjab19, no
accused can be asked and forced to give his hair for the sole purpose of
identification, as such force shall fall under compulsion. He cannot be made
to be the witness “against himself” under Art 20(3) of the Constitution.
In Selvi v. State of Karnataka20, the accused claimed that scientific techniques
like Narcoanalysis, Polygraphy and Brain Finger Printing tests are violative
of Article 20(3) and the right against self incrimination. The State argued that
16
Supra. 15
17
AIR 1968 SC 147, S.K. Singh v. V.V. Giri, AIR 1970 SC 2097
18
AIR 1980 SC 185
19
AIR 2007 SC 132
20
AIR 2010 SC 1974
these above named tests are important for investigation of sex crimes as
ordinary tests aren’t reliable and are time-consuming. So there was an issue
between “efficient investigation” and “preservation of individual liberty”. In
Narcoanalysis test, a drug- sodium pentothal is given to the person so that he
can disclose important information. The drug is a general anaesthesia in
surgical operations. The Polygraphy and Brain Finger Printing test is also
known as the Wave Test where electrical waves are introduced into the mind.
These constitute cruel, inhuman and degrading treatments which Article 21
of the Constitution disapproves of. The Court stated that the legislature should
introduce new legislations regarding this issue as no cruel and inhuman
treatment be allowed and also on the other hand we cannot compromise with
efficient, fast and reliable investigation. But if any such case comes in Court
then the following guidelines should be followed :-
1. Lie Detector Tests shall only be administered on the accused after his
approval to it which shall not be under compulsion.
2. If such accused approves the administration of the Lie Detector Test
on him then he shall be given access to a lawyer and shall be informed
about the emotional and legal effects of such test on him by the police
and lawyer.
3. Such consent by the accused to the Lie Detector Test shall be recorded
by the Judicial Magistrate.
4. The accused has to be represented by a lawyer during the hearing
before the Magistrate.
5. At the hearing the person should be informed that if any statement is
made then it shall not be confidential but shall be made to the police.
6. The Magistrate shall take into consideration all factors relating to
detention.
7. The Lie Detector Test shall be made in the presence of a lawyer and
has to be recorded by an independent agency like that of a hospital.
8. The full narration of the manner of information received shall be taken

into record.21
STAGE FROM WHICH THIS IMMUNITY IS AVAILABLE.

In Nandini Satpathy v. P. L. Dani22, the appellant was a former Chief Minister
who was called to the Vigilance Police Station for the purpose of examination
for a case filed against her under the Prevention of Corruption Act, 1947.
During the investigation, she denied to answer the questions and claimed
protection under Article 20(3). The Supreme Court held that the objective of
Article 20(3) is to protect the accused from unnecessary police harassment
and it is applicable at every stage where information is furnished. The
Supreme Court thus widened the scope of this Article in this case and held
that the prohibitary scope of Article 20(3) starts acting from the stage of
police interrogation and not from the courts. The phrase “compelled
testimony” must be read as evidence procured not only by physical threats of
violence but also by mental torture, environmental coercion, atmospheric
pressure or continuous tiring interrogatives etc.
It was also upheld in the case of State of Bombay v. Kathi Kalu23 that the
protection under Article 20(3) is available to accused not only when he has to
give evidence in the Court room in the course of the trial but also in the
previous stage when the accusation is made against him which might in
normal case result into prosecution.
THE NEED FOR A FORMAL ACCUSATION.

A witness whose statement has been recorded under Article 161 of Cr. P.C.
and has not been accused by the police at first but whose name has been
21
Dr. J. N. Pandey, Constitutional Law of India 248 (Central Law Agency, Calcutta, 53rd
edn., 2016).
22
AIR 1977 SC 1025
23
Supra. 15, 19
mentioned as accused later on, cannot claim protection under Article 20(3)
since there is no formal accusation against him existing at first when his name
wasn’t in the F.I.R.
The immunity would commence from the moment a person is named in the
First Information Report.24 The protection also commences when a complaint
is filed against the accused which would in normal course result in
prosecution or a show cause notice is issued under the Foreign Exchange
Regulations.25
In Mohammed Dastgir v. State of Madras26, the appellant bribed the Deputy
Superintendent of Police by giving him money in a closed envelope. The
police threw it at the face of the appellant on finding out that it was a bribe.
The appellant took it. Then the police officer asked him to handover the
envelope containing the currency notes. In the Supreme Court the appellant
stated that the money should not be produced in evidence as he was compelled
by the police officer to give. The Supreme Court held that the accused was
not compelled by the police officer to produce the notes as mere asking is not
compulsion and also the appellant was not an “accused” at the time when the
currency notes were seized from him.
CONCLUSION
If the accused is granted pardon under section 306 of the Criminal Procedure
Code, he ceases to be an accused and becomes a witness for the prosecution
and his evidence cannot be used against him in other cases as according to
section 132 of the Indian Evidence Act which protects the witness from being
prosecuted on the basis of the information or evidence given by him in a
criminal proceeding.
24
Sharma v. Satish, (1954) SCR 1077; Nandini v. Dani, AIR 1978 SC 1025(para.39)
25
Maqbool v. State of Bombay, (1953) SCR 730; Thomas v. State of Punjab, AIR 1959 SC
375
26
AIR 1960 SC 756
It was upheld in the case of Narayanlal v. Maneck27 that Article 20(3) shall
only apply to parties and witnesses in criminal proceeding or proceedings but
not in civil proceedings. In such proceedings, a person cannot refuse to
answer on the plea anyhow that it might tend to a criminal prosecution in
future. Article 20(3) protects only the accused and not the witnesses
questioned even if it is a criminal proceeding. It does not exclude the evidence
of the accomplice.28 The following propositions can be drawn from this
Article that :-
a) Any confession or testimony if compelled then the charge or criminal
prosecution founded on such compelled testimony shall be quashed though
the Court may give directions for fresh investigation according to law.29
b) If the accused has been prosecuted for not answering questions during
investigation30 which might incriminate him under the immunity of Article
20(3), such prosecution shall also be quashed. 31
Thus as important as Article 20(3) gets to the citizens, recently the Madras
High Court ruled that this right is not absolute but is conditional only. On
October 24th, 2011 Justice S. Nagamuthu of the Madras High Court declared
that an accused has to answer truely almost all questions asked in the
investigation leaving behind only those questions which might lead to his own
incrimination. So Article 20(3) is not to be used blindfoldedly. In John
Murray v. The United Kingdom, it has been upheld that the right to remain
silent is not an absolute right and has been accepted by the European Court
of Human Rights. However what may seem to be incriminatory to the accused
27
AIR 1961 SC 29(38-39)
28
Choraria v. State of Maharashtra, AIR 1968 SC 938 (947)
29
Nandini v. Dani, AIR 1978 SC 1025 (para. 39)
30
Indian Penal Code 1860, s. 179.
31
Supra. 33
hardly may appear incriminatory to those charging and investing their case.
Thus the subjective element could prove costly and painful for the accused in
every stage.
CASE COMMENT: SUPREME COURT ADVOCATE ON

RECORD ASSOCIATION VERSUS UNION OF INDIA, 1993
Vasundhara Kaushik*
Introduction
Supreme Court Advocates on Record Association versus Union of India,
broadly known as the Second Judges' Case, was decided on October 1993, in
a far less tyrant times. Again by a larger part, the court revised the
Constitution. The word 'Consultation' obtained a significance which the
individuals who gave us the English language and the principles of
constitutionalism couldn't have mulled over – all for the sake of autonomy of
the Indian Judiciary. The questions and doubts relating to the power and role
of the Chief Justice of India with regards to appointment of judges in the
Supreme Court and the High Courts must be considered to accomplish the
constitutional motivation behind choosing the best accessible for formation
of the Supreme Court and the High Courts, necessary to guarantee the
freedom of the Indian Judiciary, and along these lines, to save democratically
ruled system. Any development of the constitutional appointments which
clashes with this constitutional provision or nullifies the avowed item must
be shunned, being against the true significance and soul of the Constitution
and, in this way, an alien idea. Therefore, the tone of the word "consultation",
when it is with the Chief Justice of India as the leader of the Indian Judiciary,
with the end goal of composition of higher judiciary, must be recognized from
the colour of a similar word that "consultation" may take with regards to the
executive related in that procedure to aid the process of appointment of the
best accessible material. The nine-Judge Bench not just overruled S.P.
Gupta's case, yet in addition concocted a particular strategy for the
appointment of Judges of the Supreme Court in light of a legitimate concern
for "securing the honesty and guarding the freedom of the Judiciary." For a
similar reason, the power of the Chief Justice of India was held to be very
important.
The bench held that the suggestion ought to be made by the Chief Justice of
India in discussion with his two senior-most colleagues and that such proposal
ought to ordinarily be offered impact to by the executive. Therefore, in 1993,
the Chief Justice of India got supremacy in selecting judges, and till this time,
it was the government's business to fill up the vacancies.
Background of the case
“Second Judges Case" depends on the autonomy of India's judiciary as the
part of the basic structure of the Constitution. The case was settled on sixth
October 1993 in order to verify the 'Rule of Law' which is fundamental and
basic for the conservation of the democratic framework and the separation of
powers which is embraced in the constitution with the directive principles of
'Division of the judiciary from the executive'. After its judgment, the
collegium framework was embraced in the appointment of judges of Supreme
Court and High Courts. The nine judge bench in this case analysed two
inquiries:
(1) Primacy of the opinion of the Chief Justice of India in regard to the
appointments of Judges to the Supreme Court and the High Court, and in
regard to the transfers of High Court Judges/Chief Justices; and
(2) Justiciability of these matters, including the matter of fixation of the
Judge-strength in the High Courts.
Earlier in the case of Union of India v. Sakalchand Seth1, the Apex court
characterized the extent of the word "consultation" which the President
needed to have while selecting Judges in Supreme Court and High Courts.
The court held that for a compelling and effective counsel all the
constitutional functionaries must have for its thoughtful and indistinguishable
* Student, Faculty of Law, University of Allahabad

1
A.I.R. 1977 S.C. 2328.
realities based on which they would most certainly take a decision. In any
case, the court included a rider that the president will have scope to contrast
from the CJI and take an opposite view. The soul of the judgment was that
"Consultation" does not signify "Simultaneousness or Concurrence". The
impact of this judgment was that the judiciary gave the executive a high
ground in designating which makes a decision to cause an infringement of
Independence of Judiciary which in itself is a fundamental or basic structure
of the Constitution. Nonetheless, the court didn't stop there and again in S.P.
Gupta v. Union of India2 asserted the decision of Sakalchand Seth in fixing
the destiny of Independence of Judiciary in India.
As a result of the above rulings, the appointment of judges in higher level
judiciary was being made on the mercy of the executive part of the legislature.
This made ready for a more prominent political impact and preference in the
favouritism in the appointment procedure. The expense of this backward and
awful decision was less freedom for the judiciary in choosing basic issues
before them. By the ideals of Sakalchand and S.P.Gupta the judges in higher
judiciary were on absolute kindness and mercy of the administrators which
regularly resulted into clashes as it is the executive branch which has the
ability to designate just as a colossal position in expulsion process. The
framework of delivery of justice was altogether impaired with these
decisions.
Facts of the case

In the late 1980s, a series of writ petitions were filed as a PIL by a Supreme
Court advocate before the Apex Court requesting different vacancies of
Judges to be filled in the Supreme Court and High Courts. The three-Judges
bench while hearing the petitions saw that the First Judges Case required re-
2
A.I.R. 1982 S.C. 149.
thought by a bigger bench. The Chief Justice comprised a nine-Judge bench

to inspect the topic of supremacy of the Chief Justice of India in the
appointment and transfer of Judges of the Supreme Court and High Courts.
The issue came up for settlement in Sankal Chand versus Union of India3,
where the court maintained the transfer of the Chief Justice of Himachal
Pradesh. Be that as it may, by 1982, the discussion had achieved
immeasurable scope. These issues took strong structure in a batch of writ
petitions scrutinizing the move to transfer the judges testing the influenced
exchange of certain judges and requesting the legitimacy of judge quality4.
The Supreme Court, while discarding the issue, vested a definitive control
with the Central Government5. At this point, a bill was introduced in the
parliament looking for with to amend the Constitution (67th Amendment) Bill
1990 trying to amend articles 124(2), 217(1), 222(1) and 231 (2) (a) of the
Indian Constitution. This bill brought to engage the president to set up a legal
commission known as National Judicial Commission. The admitted goal was
to actualize or implement the 121st Law Commission Report. This report
prescribed that a legal commission is set up to direct the appointment of the
Judges. Be that as it may, nothing happened to this as the bill passed with the
dissolution of the ninth Lok Sabha. The writ petitions looking for a review of
the SP Gupta case were heard by a three judge bench, in particular, Chief
Justice Ranganath Mishra and Justices MN Venkatachaliah and MM Punchhi,
which prescribed reconsideration.
Arguments from both the sides
Case of the Petitioners:
1. Article 50 of the Constitution of India asks all the authorized
institutions to separate the Judiciary from the working of executive in
3
1978 (1) SCR 423.
4
SP Gupta & others vs. UOI, AIR 1982 SC 149.
5
As per Bhagwati, J. in SP Gupta case.
most possible ways as could be allowed. In this manner, it would be

an unmistakable infringement of Article 50 of the constitution to vest
such responsibility in the hands of the executive during the process of
appointment of Judges. This advantage has made the executive
"master of the rulers" that has been allowed by the denounced 1982
decision and this extraordinary power has brought about them to be
the "overlord". The obstruction of the executive in the working space
of Judiciary must be limited accordingly. The CJI's suggestions must
not be disregarded.
2. This intensity of rebellion with the President has made the Chief
justice of India a detached body as opposed to being a functioning
member in the appointment process. This latent and un-involved
status of CJI has demonstrated to be counter-profitable to the
autonomy of the Judiciary.
3. The essential component of Independence of Judiciary is strangulated
in the grip of this predominance and this will result in disintegration
of a free and reasonable organization of equity. Therefore, for the sake
of sparing the fundamental component of Independence of Judiciary
the court through its decision must understand "Consultation" as
comparable to "Concurrence".
Case of the Respondents:
1. The executive leader of the country, the President, is provided by the
authority of our Constitution to select judges in Supreme Court and
High Court on the guide and counsel of Cabinet Ministers as explicitly
given in Articles 124 and 214. The Chief Justice of India is a simple
consulter and it is the executive which has most noteworthy expertise.
2. The only work of the CJI is that he needs to make the President
mindful of the facts obscure to him with respect to the thought about
the candidate. The CJI's job closes at this stage and after that it is upon
the President to delegate whoever he considers fit to hold the office.
Following were the arguments provided by the
respondent in order to justify that there is no violations in
Independence of Judiciary:
1. Article 121 of the constitution provides that the conduct of judges of
the SC or HCs can never be discussed in a session of Parliament due
to the privileges granted by the Constitution, except on the motion
addressed to the President praying for the removal of the concerned
Judge.
2. The tenure of the offices of these judges are fixed by the Constitution
and no branch of Parliament is competent to expel the judge from his
office6 aside from if there should be an occurrence of impeachment7.
3. The perks, recompenses and compensation of these judges are fixed
by the Constitution and the Parliament can't even pass a consistent bill
diminishing the quantum of such pay, advantages and allowances.8
4. Both Supreme Court and High Courts have purview of legal audit or
judicial review of all activities of "the State" as characterized in
Article 12 and all other statutory institutions. In Sub-Committee on
Judicial Accountability v. Union of India and Ors9 it has been ruled
that even in connection to procedures for an indictment of a Judge,
there is a zone of judicial review.
Issues
Whether the opinion of Chief Justice of India should be given primacy with
regard to the appointment and selection of Judges of High Courts and the
Supreme Court, as well as in the transfer of Judges from one High Court to
6
Article 124(2), Constitution of India.
7
Article 124(4), Constitution of India.
8
Article 125(2) & 221(2), Constitution of India.
9
1991 (4) SCC 699.
other and what is the scope of the word “Consultation” in Article 124(2) of
Constitution of India?
Judgement
The much-anticipated judgment was conveyed by a 9 judge bench on October
6, 1993 with 7:2 majority. The bench overruled its earlier decision in S.P.
Gupta case and held that in issues with respect to the appointment of judges
in higher legal executive the feeling of CJI must be given power so as to limit
the executive impact in the Judicial capacities. The majority judgment was
conveyed by Justice Verma on behalf of Ray, Anand, Dayal and Bharucjajj.
While Kuldeep Singh and S.R. Pandian jj. conveyed separate yet agreeing
opinions and Ahmadi and Punchhijj. giving the dissenting opinion. The
majority held that the appointment to the office of the CJI should be made on
the basis of seniority. It was observed by the majority that, “The executive
element in the appointment process has been reduced to minimum and
political influence is eliminated. It is for this reason that the word
‘Consultation’ was used instead of ‘Concurrence’ in the constitution but that
was done merely to indicate that absolute discretion was not given to any one,
not even to the Chief Justice of India as an individual, much less to the
executive.”
The minority comprising of Ahmadi and Punchhi, held that the executive had
supremacy over the assessment of the Chief Justice of India while on the
matter of the fixation of judge quality, Punchhi did not express a view,
Ahmadi, J agreed with Venkataramaiah, J in SP Gupta's case enabling a
restricted mandamus to the issue. He said that if primacy is given to the CJI
the views of other constitutional functionaries would become redundant.
The court further held that the biggest significance must be given to the
proposal of the Chief Justice of India shaped in the form of 2 senior-most
judges of the Supreme Court. In this manner, this judgment saving the soul
of article 50 of the Constitution limited the executive impact in judicial
appointments. Further, the judgment in this way decreased the political

impact and individual favouritism from the appointment strategy.
The majority for this situation, has decided that the exhortation or the advice,
given to the president must be sacred. Any guidance that is given to the
president, which isn't as per the constitutional arrangements isn't advice. To
this degree, this denotes a milestone in the deciphering of Art. 74; which has
been held not to be pertinent to Art. 124 of the Constitution of India.
Following detailed guidelines were issued by the Apex Court in its
judgement, governing the appointment and transfer of Judges:
1. The appointment to the office of the Chief Justice of India should be
made on the basis of seniority.
2. The Chief Justice of India would be in the best state to judge being
the 'Paterfamilias'.10
3. In contrast to different constitutions, the Indian constitution does not
vest absolute discretion in the hands of the executive. Subsequently,
the Chief Justice of India can't be viewed as a second rate position.
4. The routine practice with regards to appointments has turned into an
indistinguishable piece of the constitution prompting the development
of a convention, does not permit the creation of an appointment
without the consultation of the Chief Justice of India.
5. The central government being a defendant in an enormous number of
cases under the steady gaze of the court can't be involved with the
appointment of judges as well.
6. The commencement of the proposal must be made by the Chief Justice
of India. On account of a High Court, the proposition must exude from
the Chief Justice of that concerned High Court.
10
Per, Kuldip Singh,J., para 415 at 629; per Verma, J., para 493 at 654.
7. The Chief Justice of India is required to start any proposition for

transfers. Further, a check has been put at the tact of the Chief Justice
of India, who now has to undoubtedly counsel with two of his senior-
most colleagues.
8. Thus the Chief Justice of India will successfully mean this legal
troika. On the off chance that a proposition for appointment is made
by this legal troika and is turned somewhere around the central
government, there are two conceivable outcomes. These rely on the
concurrence of the senior most colleagues. If the other two judges are
of the view that it must be pulled back, the recommendation will be
pulled back. In the event that they are in concurrence with the Chief
Justice of India, the proposal will be made again and it must be
accepted.
Analysis of the Judgement
The majority bench changing its position on the issue took a stand that in
matters relating to the determination of the best reasonable candidate for the
office of a Judge, the CJI is the most extensively learned person and that ought
to be regarded. The majority bench in this case gave back control of the Chief
Justice of India over Judicial transfers and appointments. The decision sought
to fortify the central features and fundamental structure of the constitution.
The court in order to further manage the powers of the board had suggested
that the procedure ought to be treated as one with mutual investment by taking
into account the views of every single consultee and giving the greatest
weight to the Chief Justice. Along these lines, the powers of all the
participating members would be adjusted and there would be no abuse of
power.
The Judgement holds that the CJI needs to counsel two senior-most judges in
the above mentioned matters. "The role of the CJI is very basic in nature since
this being a topic inside the legal family, the Executive can't have an
equivalent state in the issue," the decision contemplated. Be that as it may,

perplexity wins as the CJI begins taking one-sided decisions without
consulting with his two associates. The President is decreased to just an
approver.
The judgment does not foreshadow well for what's to come. There are
numerous conceivable flashpoints. This has to be seen as a piece of a full
scale pattern, in particular, they spend lavishly in 'Judicial Legislation'. The
legal executive or the judiciary has not put checks upon it and has endured in
outcome, the decision in Unnikrishnan case11 and its result is a prime
precedent.
An expansive piece of the majority judgment is at risk of being rendered
indolent. As Justice MM Punchhi has called attention to, a substantial piece
of the larger part of decision is obiter, as it did not depend on the reference.
The court has responded to questions it was not inquired. The reference just
contained the subject of 'power' and obsession of judge quality. Thus, the
remainder of the judgment is obiter.
Moreover, the majority opinion in the present case has endeavoured to make
a collegium as the legal troika. The "Chief Justice of India" can't mean the
Chief Justice and his two partners or colleagues. The constitution of India has
given an alternate position to the CJI, which is the 'primus inter pares' i.e. the
'first among the individuals' in the judiciary. He is the managerial head. In the
event that this is acknowledged in all cases, where the Chief Justice of India
is consulted, he has to consult the other two which may cause an incredible
clash of opinions later on.
Nevertheless, the law set down in this case is one of extraordinary
significance and therefore must be respectfully followed. In S.P.Gupta case,
the judgment pronounced had an adverse effect on the independence and
11
1993(1) SC 474.
impartiality of the judiciary, which is the only hope of citizens in a democratic

country. This decision helped limit the political impact that the executive was
enduring over the Judiciary since Independence. It restored the hope and faith
of the citizens of India. It additionally checked the long practice of
government to select a judge avoiding the suggestions of CJI.
TECHNOLOGICAL DEVELOPMENT AND IPR

Honey Verma*
Introduction:
As the twentieth century develops, the mechanical scene is dynamic. New
innovations are step by step expanding on logical and specialized
information; This correspondence reinforces the proportional connections
among comprehension and limit. Protected innovation is this imaginative
work of the human acumen. The principle inspiration for its security is to
advance advances in science and innovation, expressions, writing and
option imaginative works. Countries give lawful articulation to the
financial privileges of makers in their manifestations and the privileges
of people in general to get to these manifestations. This elevates
imagination and to disperse and apply its outcomes. The monetary and
mechanical advancement of a country will stop if no security is allowed
to licensed innovation rights. In this way, the commitment of protected
innovation is a sine qua non for the mechanical and monetary
improvement of a nation. The thriving of the created nations is to a great
extent the consequence of the misuse of their licensed innovation.
Protected innovation, which solely oversees the patent framework to
support advancement, innovation and mechanical improvement in a
nation has been the subject of a fight. Furthermore, IPRs ought to support
development by ensuring and remunerating innovators. Consecutive
syndication additions can prompt fruitful R and D ventures, which must
be huge enough to balance the enormous portion of bombed R and D
speculations.
When a development is imagined, its non-rival nature recommends that
its advantage will be expanded if its utilization is free for all at peripheral
expense. While this accessibility for all gives momentary advantages, it
will likewise give a solid impetus to encourage development. In any case,
unreasonable IPR insurance is probably going to include lacking dispersal

of late information, which in itself may ease back development as access
to existing advancements is expected to animate development. The
shortcoming of licensed innovation rights security has truly invigorated
R and D exercises in a few nations by empowering information overflows
from global organizations and diverse national organizations. Giving
trend-setters inordinate assurance can likewise make a lasting
syndication. Section of contenders might be hampered and fruitful trend-
setters may have less motivating forces to create and abuse resulting
advancements. The decision of IPR strategy at that point mirrors an
evening out of these worries. The endowment of a momentary imposing
business model, albeit focused, is gone for boosting the motivating force
to start, which ought to progressively energize long haul development and
better nature of items.
Created nations, with a few potential pioneers, have been keen on
generally hearty IPR frameworks, with the point of empowering
imaginative and innovative exercises as a key wellspring of long haul
monetary development. With R and D spending packed in a portion of the
world's most extravagant nations, really inventive exercises are restricted
in most created and creating nations. Most of nations on the planet have
adopted a specific strategy, offering next to zero IPR security, to empower
the quick dissemination of imitative information as a noteworthy
wellspring of mechanical improvement. Fortifying the security of
licensed innovation rights is seen as an exchange of the benefits of
mimicking national organizations to outside organizations and a decrease
of generation inside the national economy, as opposed to as a consolation
of residential creative exercises. The counter-contention is that upgraded
IPR insurance can help compensate imagination and hazard taking even
in creating economies, while deficient IPR security can continue creating
nations subject to dynamic and insufficient organizations that consider

forging and impersonation.
IPR AND TECHNOLOGY
IPRs are a lot of elite rights to make an innovative and expert soul. The
first is secured by copyright laws, which protect innovative works, for
example, books, films, music, depictions, pictures and programming
bundles, and offers the copyright holder the way to direct the generation
or adjustment of such works for an uncertain period. The second class is
gathered under the expression "modern properties" since they are by and
large made and utilized for mechanical or business purposes. A patent
might be conceded for another, valuable and unobvious creation, and
gives on its proprietor the privilege to keep anybody from rehearsing the
development without a permit of the artificer for an inconclusive period.
An imprint might be a particular sign used to keep away from disarray
between items sold available. A modern style right ensures the structure,
appearance or style of a mechanical item from duplicating. A mystery is
a related component of nursing data about strategic approaches or
restrictive information.
Innovation today is developing at a quicker pace, a lot quicker than in the
twentieth century. Talking about India, one can reprimand British
principle for being the purpose behind the hindrance it contains. These
days, the present PCs, which used to be enormous rooms, have been
scaled down to be a cell phone, even a tablet. Enormous global
organizations are presently utilizing this innovation, which our
predecessors couldn't consider. Along these lines, what we use today,
researchers have needed to consider it 10 years prior, if not previously.
The required innovative work (R and D) more likely than not accepted a
very long while as it likewise incorporated a time of experimentation. It
was along these lines important to set up severe laws and principles to
secure the thoughts or scholarly properties of the populace. Likewise,

there was a requirement for a definitive body to oversee these laws and
standards around the globe. This prompted the introduction of Intellectual
Property Rights (IPR) and its laws.
By the twentieth century, confirmations and mechanical upgrades in India
were neither marvellous nor successful. Since its innovation was not
effective, IPR issues additionally confronted a beginning issue. Be that as
it may, with the start of the 21st century, India has notifiable demonstrated
incredible advancement in the field of protected innovation rights. This
target has been accomplished by staying in accordance with the
Agreement on Trade-Related Intellectual Property Rights (TRIPS), just
as by regarding the US and European structure identifying with protected
innovation rights (IPRs). There is presently a standard of learning,
innovation and keenness in India. Subsequently, issues of insurance and
misuse of protected innovation have happened to principal significance.
At a prior stage, there were issues and issues identified with its usage,
strategies, laws/standards and backing given by money related and
government organizations. Creators and organizations were additionally
not intrigued by innovative work since they were both scared by the
danger of infringement because of the absence of protected innovation
rights. This brought about scholarly and financial misfortunes.
The Indian Patents Act of 1970 made ready for new patent laws. In this
way, numerous corrections were made as per the TRIPS Agreement in
2005. Prior to marking the Madrid Protocol, India turned into an
individual from the Paris Convention, the Patent Cooperation Treaty, and
of the Budapest Treaty.
IPRs have their underlying foundations in numerous segments of the
Indian market. Regardless of whether it is innovation or pharmaceuticals,
IPRs are a key player. All things considered, India faces difficulties both
locally and internationally. Talking about the nearby level, protected

innovation rights are deficient in remote regions, where most of the
populace is uninformed of them. These zones are a ground-breaking
wellspring of development. These territories need some instructive and
heuristic camps, which can illuminate the populace on the utilizations and
advantages of licensed innovation rights.
While looking at the status of other part nations (of the TRIPS Agreement)
with India, our nation has pursued and obtained numerous crucial
standards of different nations, identifying with licensed innovation rights.
Innovative advances in different nations are not in a state of harmony with
India. This, as I would see it, is going off course. Laws ought to be
planned by the innovative and economic wellbeing of our nation and not
that of the other nation. The meticulousness of laws and rules can be a
hindrance to protected innovation rights on the off chance that we don't
keep up the synchronization between our mechanical and social advances
and rules.
Intellectual Property in Emerging Technology:
Probably the most significant developing advances just as those in the data,
gadgets, correspondence and new biotechnology fields scarcely compare to
the current classifications of licensed innovation rights. They may require a
reassessment of current ways to deal with insurance at the national and global
levels.
1. COMPUTER SOFTWARES
The expression "PCs" is characterized in the law as enveloping any
electronic gadget or the like with data handling capacities, while the
expression "PC program" alludes to a lot of guidelines communicated
in words, codes, patterns or in some other structure, including a
machine-meaningful medium equipped for compelling a PC to play
out a specific undertaking or to get a specific outcome.
For copyright to subsist in a PC program, it must be unique and

recorded as a hard copy or something else. The necessity of
innovation isn't substantial and does not imply that the PC program
must be new or extraordinary in certain regards. It basically implies
that the program was the aftereffect of a humble ability, diligent work
or exertion and that it was made by the creator.
The meaning of "PC program" in the 1957 Copyright Act clarifies that
the program must contain a lot of directions communicated in words,
codes, graphs or in some other structure, including a lucid medium.
by machine. Likewise, a PC database, put away on tape, plate or other
electronic methods, would for the most part comprise an accumulation
and could be secured as a scholarly work.
Ø Protection of Computer Programmes1
(a)There are significant purposes behind picking
copyright assurance. Right off the bat, PC projects are
basically compositions and, as per Article 2 (1) of the
Berne Convention, the reason for which the
compositions are made is unimportant to their
capability as works abstract, on the off chance that it is
about unique scholarly manifestations.
(b) Article 27.1 of the TRIPS Agreement necessitates
that licenses be accessible in all fields of innovation,
gave that they are new, include an imaginative advance
and can be connected mechanically, subject to certain
constrained exemptions. This wide patentability
* Student, Amity University, Rajasthan

1
“Technological and Legal Developments in Intellectual” (Dec, 01- Jan 04) ,
https://www.wipo.int/export/sites/www/about-ip/en/iprm/pdf/ch7.pdf
request has started a talk on where to explore the way

from copyright to patent security of PC programs.
(c) The worldwide accord on the insurance of
copyright in PC projects has been reflected in two
global settlements, in particular Article 10 (1) of the
TRIPS Agreement and Article 4 of the Treaty on
Intellectual Property Rights. Copyright Law (WCT).
In spite of the fact that their wording is marginally
extraordinary, the two arrangements express that PC
projects must be ensured as abstract works and that
security must be equivalent to that concurred to such
works under the Berne Convention. . This does not
reject that national laws may group PC programs in a
different class of works, gave that the degree of
security isn't lower than that allowed to artistic works
under the Convention. The TRIPS Agreement
additionally expresses that insurance applies to PC
programs "whether in source code or item", though the
WCT communicates something very similar in a less
specialized structure: "This security applies to
programs PC, regardless of what their demeanour. "
2. BIOTECHNOLOGY
Biotechnology is an innovative field of developing significance.
Biotechnological innovations could vitally affect our future,
especially in the fields of prescription, nourishment, horticulture,
vitality and ecological security. Biotechnology considers living
creatures, for example, plants, creatures, seeds and miniaturized scale
life forms, just as natural material, for example, compounds, proteins
and plasmids (utilized in "hereditary designing"). Biotechnological
developments have a place with 3 classes: the procedures of creation

or change of living life forms and organic material, the consequences
of such procedures and the utilization of such outcomes.
Biotechnology is probably the most seasoned innovation. For
instance, the generation of wine or lager includes procedures utilizing
living life forms and these strategies have been known for quite a
while. Likewise, specific rearing of plants and creatures has a long
history. All the more as of late, researchers have created natural
procedures to change the hereditary synthesis of living beings
(hereditary designing). The rundown of businesses utilizing
biotechnology has been extended to incorporate medicinal services,
farming, sustenance preparing, bioremediation, ranger service,
compounds, synthetic compounds, beauty care products, vitality,
paper fabricating, hardware, materials and mining. This development
of light emanating diode applications to essential monetary movement
and improvement.
As in various mechanical fields, legitimate insurance of
biotechnological innovations is vital. Such developments are
manifestations of the human personality, even fundamentally the
same as different creations, and are commonly the aftereffect of
research, innovative endeavours and significant interests in
innovations, and are normally the consequence of research,
imaginative endeavours and considerable interests in complex labs.
When in doubt, organizations that perform investigates possibly make
speculations if the aftereffects of their examination offer legitimate
assurance. As indicated by various creations, the security of
biotechnological developments is obviously important, not just in
light of a legitimate concern for innovators and their partners.
managers, additionally in the open enthusiasm to advance innovative
advancement. The legitimate security of innovations is commonly

settled by the award of licenses or various titles.
Ø Protection of Biotechnology
(a) Patents are the most generally utilized type of
legitimate insurance to energize development and
commercialization of biotechnology, albeit business
mystery security may likewise be accessible. Lawful
systems other than patent frameworks are commonly
used to manage other open interests, for example, the
ecological or medicinal wellbeing of items, their
adequacy and out of line rivalry.
(b) According to Article 27.1 of the TRIPS Agreement,
licenses must be accessible in all fields of innovation,
with no segregation, gave that they are new, include a
creative advance and may have mechanical
application. Article 27.2 approves a Member to
prohibit from patentability developments the misuse of
which might be in opposition to open request or ethical
quality. What's more, Article 27.3 additionally enables
Members to bar from patentability certain items, for
example, plants and creatures.
3. REPROGRAPHY
Reprography is the nonexclusive term presently used to portray a wide
range of duplicating gear as of now accessible, making it conceivable
to make duplicates of a wide range of copy archives right away and
cheaply on easy to utilize gadgets. Today, in pretty much every nation,
this gear is omnipresent and numerous duplicates of abstract,
emotional, melodic and masterful material are made utilizing

reprographic hardware utilized all through the world.
Ø Protection: Article 9 of the Berne Convention (Paris Act
1971) gives that "writers of abstract and aesthetic works
secured by this Convention have the selective ideal to approve
the proliferation of such works, of any way and in any
structure at all "and every contemporary work. copyright laws
contain arrangements executing this guideline. Article 9,
passage 2, be that as it may, enables national copyright laws
to approve the generation of works specifically cases, subject
to two conditions:
- the approved multiplication must not struggle with the
customary abuse of the work;
- The multiplication must not hurt radically the real interests
of the creator.
4. COMMUNICATION TECHNOLOGIES
Communication Technology, conjointly referred to
as data Technology, alludes to any instrument or program that
relates to the technique and information correspondence.
Correspondence innovations, which started with the transmission
of sound just, started to be broadly utilized by the overall
population in the first and second many years of the twentieth
century. For thirty or forty years currently, communicating has
comprised essentially of a remote transmission by the ether of
attractive power signals which, when gotten by proper hardware,
could recover into sounds and visual pictures proposed to be seen
by the ear and eyes. Progressively, from the mid-twentieth century
as far as possible, numerous unpretentious satellite and link
correspondence procedures (portrayed beneath) were required. At
long last, from the 90s, online business and in this manner the Web
changed correspondence advances. It incorporates satellites, link
appropriation, advanced dissemination framework, Internet and
online business.
Ø Protection: The 1974 Brussels Convention accommodates
the commitment for each Contracting State to take
sufficient measures to avoid the unapproved dissemination
on its domain of any program-conveying signal by any
wholesaler for which the sign transmitted to or through the
satellite This isn't needed. The commitment exists for
associations that are nationals of a Contracting State. The
arrangements of this Convention, be that as it may, are not
relevant where the dissemination of sign is produced using
an immediate communicate satellite.
CASE LAWS:
a) Novartis Case2
In 2005, when a condition identifying with the adequacy of the
medication had been embedded in segment 3 (d) of the Patent Act, it
was translated as the remedial viability of the medication and not
simply as an improvement in physical attributes or solidness of the
item. Novartis recorded an application with the Chennai Patent Office
for the medication name GLIVEC, which was a somewhat
extraordinary form of its 1993 enemy of leukemia medication patent.
The Deputy Controller of Patents and Designs, Chennai Patent Office,
dismissed the solicitation under section 3 (d). Novartis mentioned the
Court to pronounce Section 3 (d) of the 2005 Patents (Amendment)
2
2013 (54) PTC 1 (SC)
Act rebellious with the TRIPS Agreement and as opposed to Article

14 of the Constitution. The contention with respect to the infringement
of Article 14 of the Indian Constitution depended on a subjective
prudence gave on the representative of licenses in deciding
proficiency improvement. The court said that the motivation behind
the patent framework is to demoralize the expansion of the patent after
the lapse of the patent term of twenty years, with the goal that different
organizations can deliver and showcase the medication. The Court
expressed that the correction was expected to:
• Preventing ever-greening;
• Provide simple access for residents of this nation forever
sparing medications; and
• satisfy their established commitment to give human
services to their natives.
b) Turmeric Patent
Turmeric is a tropical herb grown in east India. Turmeric powder is
widely used in India as a medicine, a food ingredient and a dye to
name a few of its uses3. For instance, it is used as a blood purifier, in
treating the common cold, and as an anti-parasitic for many skin
infections. It is also used as an essential ingredient in cooking many
Indian dishes. In 1995, the United States awarded patent on turmeric
to University of Mississippi medical centre for wound healing
property. The claimed subject matter was the use of "turmeric powder
and its administration", both oral as well as topical, for wound healing.
An exclusive right has been granted to sell and distribute. The Indian
Council for Scientific and Industrial Research (CSIR) had objected to
the patent granted and provided documented evidences of the prior art
to USPTO. Though it was a well-known fact that the use of turmeric
was known in every household since ages in India, it was a herculean
task to find published information on the use of turmeric powder

through oral as well as topical route for wound healing. Due to
extensive researches, 32 references were located in different
languages namely Sanskrit, Urdu and Hindi. Therefore, The USPTO
revoked the patent, stating that the claims made in the patent were
obvious and anticipated, and agreeing that the use of turmeric was an
old art of healing wounds. Therefore, the TK that belonged to India
was safeguarded in Turmeric case.
c) Neem Patent
The patent for Neem was petitioned just because by W. R. Elegance
and the Department of Agriculture, United States of America at the
European Patent Office. This patent is a strategy for controlling
parasites on plants by reaching the organisms with a Neem oil
definition. India has recorded a lawful restriction to the award of the
patent. The lawful restriction to this patent was shaped by the
Research Foundation for Science, Technology and Ecology (RFSTE),
situated in New Delhi, in participation with the International
Federation of Movements of Organic Agriculture (IFOAM) and
Magda Aelvoet, previous Green Member of the European Parliament
(MEP) 4. An unbelievable tree in India, from roots to spreading
crowns, neem contains various ground-breaking mixes, incorporating
a concoction found in its seeds, azadirachtin. It is utilized as an
astringent in numerous territories. Bark, leaves, blossoms and neem
seeds are utilized to treat different illnesses running from
uncleanliness to diabetes, skin sicknesses and ulcers. Neem twigs
have been utilized as sterile toothbrushes since days of yore. Rivals
displayed proof from antiquated Indian messages on Indian Ayurveda
depicting the hydrophobic concentrates of neem seeds known and
utilized for quite a long time in India, both for the treatment of
dermatological infections in people and for the assurance of

developed plants. contagious contaminations. The EPO has noticed
the absence of curiosity, innovative advance and, perhaps, earlier
workmanship and has denied the patent. Aside from that, few US
licenses have as of late been discharged from emulsions and Neem-
based arrangements.
d) Basmati patent
The US Patent Office allowed a patent to Rice Tec for a strain of
basmati rice, a fragrant rice developed in India and Pakistan for quite
a long time. Rice is the staple sustenance of individuals in many pieces
of Asia, including India and Pakistan. For a considerable length of
time, ranchers in this district have created, developed and safeguarded
more than one hundred thousand assortments of rice to meet various
tastes and needs. In 1997, in its patent application, Rice Tec
additionally recognized that "Basmati rice of good quality customarily
originates from northern India and Pakistan ... Truth be told, in certain
nations the term must be utilized for Basmati rice developed in India
and Pakistan ". Notwithstanding, the organization at that point
professed to have designed some "new" Basmati lines and oats "that
permit the generation of high calibre and high yielding Basmati rice".
The Indian Government bid just 3 out of 20 guarantees in Rice Tec
Inc's. unique patent application. What we are testing concerned just
certain attributes of basmati (specifically starch file, smell and grain
estimate) 5. It ought to be noticed that the WTO Agreement does not
commit nations to secure plant assortments by patent. Nations need to
administer for plant assortments to be ensured.
e) Burlington Home Shopping Pvt. Ltd. v. RajnishChibber3

For this situation, the issue of insurance of PC databases had been
raised before Delhi HC. The court found that an entanglement of
addresses created by each with time, cash, work and abilities was
"scholarly work", despite the fact that the sources could be regularly
found.
f) Express Newspaper plc v. Liverpool Daily Post & Echo plc4
The arbitrary number chosen by PC for a press challenge titled
"Tycoon of the Month" have been observed to be secured by
copyright. The court dismissed the contention that since there was no
human creator, PC produced arrangements of numbers couldn't be
ensured by copyright. The court inferred that human aptitude in PC
determined works could dwell in the projects that created the
arrangements of irregular numbers.
Conclusion
The motivation behind this examination paper is to demonstrate that
innovation that ensures protected innovation rights is a basic determinant of
monetary development in creating nations, for example, India. Licensed
innovation rights must not be in equalization, nor the protected innovation
rights that make a restraining infrastructure advertise with respect to the
innovator, nor the shortcoming by which anybody may encroach the
privileges of the designer. Protected innovation laws ought to be
characterized by the advances and the societal position of the nation itself,
not the nation of the other nation. The meticulousness of laws and rules can
be a deterrent to licensed innovation rights in the event that we don't keep up
synchronization between our advances and social advancement with the
resolutions. Learning of licensed innovation rights ought to multiply in all
3
1995 PTC 278.
4
(1985) 1 WLR 1089.
parts of society to empower natives to think, improve and concoct. The

impact of IPRs on the present system is firmly affected by its inner voice and
its scholarly nature. In the present situation, different significant advances
have been taken to achieve licensed innovation rights at another stature and
to conform to the system of security of protected innovation privileges of
different nations. It was felt that more move should have been made.
Likewise, individuals are as yet ignorant of IPRs and their advantages to
taking rights over their licensed innovation. In such cases, the legislature
ought to advance IPR mindfulness in remote zones.
ME TOO – MEN TOO – EQUAL PROTECTION

Pasapala Syed Mustaq* & B.S Vaishanavi**
I. INTRODUCTION
In this male dominant society, there is a growing awareness for equal rights
and opportunities for women. The authors would emphasize the fact that this
awareness should be with regards to gender equality and gender neutrality,
rather than differential special treatment. Thus harassment, force or any other
type of cruelty on human beings be it men or women is a crime. Hence proper
measures should be taken for the same and gender-neutral legal provisions
should prevail to remove the bias. It should be noted that sexual harassment
victims may be of any gender. As per the 2012 findings of a recent
Economic Times-Synovate survey, 1 around 19% of men from among 527
people who were queried in various cities across the country have faced some
kind of sexual harassment at workplace. In Bangalore, 51% of the
respondents had been sexually harassed, while in Delhi and Hyderabad
respectively, 31% and 28% of those surveyed said they had been
sexually harassed. Also, most of the male victims fail to report the crime or
voice out as the gender stereotyping expect men to be strong and doesn’t
approve of the possibility of men being harassed. According to society, any
emotions shown by men would result in them being asked to man up a little!
II. HARASSMENT: MEANING & TYPES:

One of the common harassments that the authors would like to highlight to
the readers is sexual harassment.
* Student, SASTRA Deemed to be University Thanjavur, Tamil Nadu

** Student, SASTRA Deemed to be University Thanjavur, Tamil Nadu
1
Kritika Kapoor, Men too are victims of sexual harassment, Times of India, Dec 21, 2012,
https://timesofindia.indiatimes.com/life-style/relationships/love-sex/Men-too-are-victims-
of-sexual-harassment/articleshow/16336627.cms (visited on 30th Jun 2019)
Sexual harassment is defined as unwelcome sexual advances, requests for

sexual favors, and other verbal or physical conduct of a sexual nature when
(1) submission is either explicitly or implicitly a condition affecting academic
or employment decisions; (2) the behavior is sufficiently severe or pervasive
as to create an intimidating, hostile or repugnant environment; or (3) the
behavior persists despite objection by the person to whom the conduct is
directed. It is highly believed that sexual harassment is the only type of
harassment but, it is to be noted that it is one among the various other
harassments.
Other types of harassment are based on Race, Religion and National Identity.
There is also workplace harassment. Almost all men victims face workplace
harassment. There are around 6822 cases of sexual harassment in the year
2015 in the workplace filed with the Equal Employment Opportunity
Commission (EEOC) out of which 17.1 percent were filed by men.2 However,
these offenses remain buried as the provisions of sexual harassment in India
are restricted to women.
According to the Equal Employment Opportunity Commission, there are two
types of sexual harassment in the workplace, namely, quid pro quo
harassment and hostile harassment.
Quid pro quo harassment typically involves someone in a supervisor-type role
who asks or hints at sexual favors in exchange for any type of employment
benefit. This could mean that, in return for some type of sexual favor, the
victim would receive more pay, a higher-ranking job, or more seniority within
the company. Hostile environment harassment can consist of intimidating or
threatening comments, jokes, and repeated sexual advances that impact the
ability of an employee to do his or her job. Examples of hostile environment
sexual harassment may include:
2
Anna Anandita, Sexual Harassment among Men: A Stark Reality, Safe city, Sept 12, 2018,
https://safecity.in/sexual-harassment-among-men-a-stark-reality/(visited on 30th Jun 2019)
• A Repetitious telling of dirty jokes or sexual anecdotes;

• The use of insults or derogatory remarks that are sexual in nature;
and/or
• Repeated behavior that is inappropriate, such as touching, rubbing, or
groping. This sexually-oriented behavior is neither welcomed nor
consented to, but it creates a hostile work environment for others.
Quid pro quo and hostile work environment sexual harassment can happen to
women and men, and the victim and perpetrator can be of the same or
differing sex.
Due to sexual harassment, the men who are facing it are likely to suffer more
from anxiety and addiction to alcohol. Men are facing sexual harassment and
they don’t have much of a remedy which prevents them from taking any steps
to lodge a complaint against the harassers and is also considered as an
embarrassment. The authors would stress on the term ‘social ridicule’. It is
understood by the authors that the society has made certain norms and
characteristics for both men and women, which considers women as a weaker
gender and men are considered to be stronger. If men who are victims of
sexual harassment report any abuse against them, they are considered by
society as incompetent to face the problems and as cowards. Adding to this
point, it is enlightened that in absence of any legal protection for men, they
fear opening up to people. Therefore, it is pointed out by the authors that there
must be a change in the law to bring a change in society. Only when legal
protection is given, men will have an opportunity to voice out their agony and
will help in bringing the harassers into the light of justice.
III. PROVISIONS DEALING WITH SEXUAL HARASSMENT:

There are many provisions under Indian laws which are not gender- neutral.
It is very well appreciated by the authors that steps are taken to curb injustice
against women by adding provisions which support women. But it must be
considered that men are human beings too. Even they undergo sexual and
mental harassments from the same or opposite gender. Laws should be made
to safeguard people in general and not segregate gender -wise. There are
many laws which are not gender- neutral. The authors would like to give a
broader view with respect to two sections of Indian Penal code 1860.
Section 354A of IPC, 1860
The following section reads as follows.
(1) A man committing any of the following acts—
i. Physical contact and advances involving unwelcome and explicit
sexual overtures; or
ii. A demand or request for sexual favors; or
iii. Showing pornography against the will of a woman; or
iv. Making sexually colored remarks shall be guilty of the offense of
sexual harassment.
(2) Any man who commits the offence specified in clause (i) or clause (ii) or
clause (iii) of sub-section (1) shall be punished with rigorous imprisonment
for a term which may extend to three years, or with fine, or with both.
(3) Any man who commits the offense specified in clause (iv) of sub-section
(1) shall be punished with imprisonment of either description for a term which
may extend to one year, or with fine, or with both.
The following section is amended as per the Criminal Law Amendment Act,
2013. It was in pursuance of promulgation by the President with reference to
the Nirbhaya Case. This amendment was made to provide more protection to
women. However, it must be noted that the provision begins with ‘A MAN’
which makes the provision gender-biased. As stated above, even men
undergo sexual and mental harassment. The difference here is that the agony
and their pain is not voiced out due to societal pressure.
Section 498A of IPC 1860:
The following section reads as follows
Husband or relative of husband of a woman subjecting her to cruelty—

Whoever, being the husband or the relative of the husband of a woman,
subjects such woman to cruelty shall be punished with imprisonment for a
term which may extend to three years and shall also be liable to fine.
Explanation—For the purpose of this section, “cruelty” means—
(a) any willful conduct which is of such a nature as is likely to drive the
woman to commit suicide or to cause grave injury or danger to life, limb or
health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to
coercing her or any person related to her to meet any unlawful demand for
any property or valuable security or is on account of failure by her or any
person related to her to meet such demand.
This provision is amended as per the Criminal Law (Second Amendment)
Act, 1983 (46 of 1983) which amended the Indian Penal Code, 1860, Code of
Criminal procedure, 1973, the Indian Evidence Act, 1872 and the Dowry
Prohibition Act, 1961 with the intention of protecting wives from marital
violence (cruelty to married women), abuse and extortionist dowry demands.
Again, in this provision too, the emphasis is given to cruelty against women.
There is no mention of cruelty against men. In the recent past, there has been
an invariable increase in the rate of cruelty against men. This is caused due to
misuse of gender-biased provisions. Women are taking undue advantage of
the protections given to them by law. Women file false cases against men by
accusing them of cruelty and obtain the necessary advantages and reliefs. This
leads to mental cruelty and harassment of men. Wronged women must get
justice at all costs. No woman should be denied her rights, but at the same
time, one should not turn a blind eye to the rampant misuse of sexual
harassment laws. There are a large number of cases where men are falsely
implicated under laws covering sexual harassment at workplace, dowry
harassment and domestic violence. The suffering of the accused in such cases
is magnified by delays in court proceedings. According to the data collected

from the National Crime Records Bureau in 2015 around one lakh cases were
filed under 498A on an average. The rate of accusations that were proven
varied between 20% in 2011 and 14% in 2015.3 This gap in the rates shows
that many false complaints were filed. Section 498A of Indian Penal Code is
enacted to protect women from violence of husband and his relatives and to
prohibit dowry. It is suggested by the authors that, in this section, the word
“Cruelty” which explains about the harassment to the women and her
relatives, should be made gender- neutral by adding “any person” so that it
achieves the core object of Article 14. The authors accept that the Article 14
allows differential treatment to certain classes of persons based on the
situation, but this section is taken as a weapon by the women to file a false
allegation against men, leading to mental cruelty to the men. As stated in the
case, Raj Talreja v. Kavita Talreja4, the Apex court of India consisting of two
quorum benches, has held that ‘False allegations against the men is mental
cruelty to men’. This case is related to divorce. In the recent case, Rajesh
Sharma v. State of UP5 in which two quorum bench of the Apex court of India,
has issued the guidelines to prevent the misuse of Section 498A of Indian
Penal Code. Those guidelines are welcomed by these authors but the false
allegation and mental cruelty to the men are not reduced up to the mark. The
Infra listed directives:
1)(a) In every district one or more Family Welfare Committees should be
constituted by the District Legal Services Authorities preferably comprising
of three members. The constitution and working of such committees may be
reviewed from time to time and at least once in a year by the District and
3
Manoj Nair, Is the Dowry Law being misused? Statistics can be interpreted to say ‘Yes’ or
‘No’, Hindustan Times, Aug 21, 2017, https://www.hindustantimes.com/mumbai-news/is-
the-dowry-law-being-misused-statistics-can-be-interpreted-to-say-yes-or-no/story-
sG1nIm58Wik6LpY4KqlOiN.html. (Visited on 2nd Jul 2019)
4
A.I.R. 2017 S.C. 2138.
5
A.I.R. 2017 S.C. 3869.
Sessions Judge of the district who is also the Chairman of the District Legal
Services Authority.
(b) The Committees may be constituted out of Para Legal volunteers/social
workers/retired persons/wives of working officers/other citizens who may be
found suitable and willing.
(c) The Committee members will not be called as witnesses.
(d) Every complaint under Section 498A received by the police or the
Magistrate should be referred to and looked into by such committee. Such
committee may have interaction with the parties personally or by means of
telephone or any other mode of communication including electronic
communication.
(e) Report of such committee may be given to the authority by whom the
complaint is referred to, latest within one month from the date of receipt of
the complaint.
(f) The committee may give its brief report about the factual aspects and its
opinion on the matter.
(g) Till report of the committee is received, no arrest should normally be
made.
(h) The report may be then considered by the Investigating Officer or the
Magistrate on its own merit.
(i) Members of the committee may be given such basic minimum training as
may be considered necessary by the Legal Services Authority from time to
time.
(j) The Members of the committee may be given such honorarium as may be
considered viable.
(k) It will be open to the District and Sessions Judge to utilize the cost fund
wherever considered necessary and proper.
2) Complaints under Section 498A and other connected offenses may be
investigated only by a designated Investigating Officer of the area. Such
designations may be made within one month of the complaint. Such

designated officer may be required to undergo training for such duration (not
less than one week) as may be considered appropriate. The training may be
completed within four months from today;
3) In cases where a settlement is reached, it will be open to the District and
Sessions Judge or any other senior Judicial Officer nominated by him in the
district to dispose of the proceedings including closing of the criminal case if
the dispute primarily relates to matrimonial discord.
4) If a bail application is filed with at least one clear day's notice to the Public
Prosecutor/complainant, the same may be decided as far as possible on the
same day. Recovery of disputed dowry items may not by itself be a ground
for denial of bail if maintenance or other rights of wife/minor children can
otherwise be protected. Needless to say, that in dealing with bail matters,
individual roles, prima facie truth of the allegations, and requirement of
further arrest/custody and interest of justice must be carefully weighed.
5) In respect of persons ordinarily residing out of India, impounding of
passports or issuance of Red Corner Notice should not be a routine.
6) It will be open to the District Judge or a designated senior judicial officer
nominated by the District Judge to club all connected cases between the
parties arising out of matrimonial disputes so that a holistic view is taken by
the Court to whom all such cases are entrusted; and
7) Personal appearance of all family members and particularly outstation
members may not be required and the trial court ought to grant exemption
from personal appearance or permit the appearance by video conferencing
without adversely affecting the progress of the trial.
8) These directions will not apply to the offenses involving tangible physical
injuries or death.
In the case of Hirlal P. Harsora v. Kusum Narootamdas,6 the Apex Court

has set aside the judgment of the High court and stated that the word “adult
male” under Section 2(q) of Protection of Women from Domestic Violence
Act, 20057 would stand deleted as the term was not in consonance with Article
14 of the Constitution of India.
There are many groups that are fighting for the justice of men, as they are
mentally harassed by women due to a false allegation against them. The
groups are fighting for gender- neutral laws as well, one among the group is
Save India Family Foundation. In the year 2007, through the Bibliographic
study by Fiebert, he examined a total of 209 studies and among them, 161
empirical studies and 48 analyses show that women were more aggressive
and violent than men in their spousal relationship.8 Women rights activist and
prominent lawyer Flavia Agnes has given her opinion to support men and
other community who are facing harassments by promoting campaigns
similar to ‘Me too’ movement started by women.9
IV. CONSTITUTIONAL PROTECTION:
Article 14 and Article 21:
According to the Constitution of India, the core objective of the text is to
provide rights and duties to the citizens of India, it is to be noted that every
right is accompanied by a duty.
Part III of the Fundamental Rights is applicable to the citizens of India
irrespective of caste, gender, creed and religion. The right to equality and
6
A.I.R. 2016 S.C. 4774.
7
“Respondent’’ means any adult male person who is, or has been, in the domestic
relationship with the aggrieved person and against whom the aggrieved person has sought
any relief under this act: Provided that an aggrieved wife or female living in a relationship in
the nature of marriage may also file a complaint against relative of the husband or the male
partner.
8
Aparajita Balaji, Men’s Rights In India, Legal Desire, Nov 8,
2018,https://legaldesire.com/mens-rights-in-india/ (visited on 2nd Jul 2019)
9
Sriparna Ray, They Too: What about men and the third gender? The Telegraph, 13th October
2018,https://www.telegraphindia.com/india/theytoo-what-about-men-and-the-third-
gender/cid/1671743 (Visited at 3rd Jul 2019)
right to life as enunciated in Article 14 and Article 21 respectively are

applicable not only to the citizens of India but also to the non-citizens. The
legislation which is passed either by the parliament or state assembly should
be in consonance to the Constitution of India. Authors like to point to out that
there is an inequality with regards to the treatment of men under the penal
provisions. The provisions dealing with sexual harassment as discussed
earlier were drafted during the colonial era which has failed to acknowledge
the harassment faced by men and have made the provision protecting only
women ruling out the possibility of men getting harassed. People are aware
of the provisions protecting women from harassment but there are none to
protect the rights of men who are harassed.
Equality before the law and Equal Protection Law are the crux of Article 14
of the Indian Constitution. The authors would like to highlight the second part
of Article 14 i.e. ‘Equal Protection of Law’10 which is said to be a positive
one. It means that there should be a law which gives equal protection to the
citizens of India irrespective of their caste, creed, gender and religion. The
authors with due respect to women and the laws protecting them express our
concern over the protection available for men since there are no laws which
protect them. So, the core objective of the Constitution under Article 14 will
not be achieved if there are no equal laws to protect all the citizens of India
irrespective of caste, creed, gender and religion.
Article 21 guarantees the right to life and the right to live with dignity. Sexual
harassment of women has been held to be in violation of most cherished
fundamental rights, namely the right to live with dignity. In Vishakha v.
State of Rajasthan,11 the Supreme Court held that sexual harassment of
women in the workplace was a violation of Article 14, Article 15, Article 21
of the Constitution. The court in this context has observed that:
10
State of U.P v. Deoman Upadhyay; A.I.R. 1960 S.C. 1125.
11
A.I.R. 1997 S.C. 3011.
“The meaning and content of fundamental right guaranteed in the

constitution of India are of sufficient amplitude to encompass all facets of
gender equality including prevention of sexual harassment or abuse”.
Quoting the term ‘gender equality’ as observed by the court, the authors are
contending that even men have the right to life and right to live their life with
dignity. Hence necessary steps should be taken as done for the above-
mentioned case.
The Authors would like to point out the fact that there are few important
judgments in the recent past which have ensured ‘equal rights’ and ‘gender
equality’.
In Joseph Shine v. Union of India12 the constitutional bench of the Supreme
Court Struck down Section 497 of Indian Penal Code 1860 and
decriminalized Adultery. The asymmetric nature of the provision punished
only men for Adultery. The court observed that the provision was grounded
upon gender subrogation and thus it failed the test of Article 14 of the
constitution. By decriminalizing the provision, the door is open for the
legislature to make a gender-neutral law with regards to Adultery. It is
submitted by the authors that with reference to the above judgment the
constitution’s intention of protecting the rights of people is still preserved.
Thus, the same measures should be taken to protect the rights of men under
Article 14 and Article 21 of the constitution. In the opinion of Hon’ble Justice
Chandrachud and Justice Malhotra, in Navtej Johar v. Union of India13
“Justness postulates equality. In consonance with constitutional morality,
substantive equality is directed at eliminating individual, institutional and
systemic discrimination against disadvantaged groups which effectively
undermines their full and equal social, economic, political and cultural
participation in society.”
12
A.I.R. 2018 S.C. 4898.
13
A.I.R. 2018 S.C. 4321.
Even recently, the Apex court of India has given the right to entry in
Sabarimala case and also banned the Triple Talaq in Shayara Bano v. Union
of India14 in the context of it being unfair, and in discrimination to the women
because only men and a certain class of women were allowed to worship in
the Sabarimala temple and men were given a weapon in form of talaq to
divorce their wives without any valid reasons.
V. PROVISIONS DEALING WITH SEXUAL HARASSMENT IN

OTHER COUNTRIES:
AUSTRALIA
In Australia, according to the Sex Discrimination Act, 1984 sexual
harassment means
‘The person makes an unwelcome sexual advance or an unwelcome request
for sexual favors to the harassed person or engages in other unwelcome
conduct of a sexual nature in relation to the person harassed.’
The word ‘Person’ is inclusive of every gender in society.
Australia through its legislation provides relief to men from the harassment.
The Australia Bureau of Statistics which is infra listed clearly shows that
there were not only women who were victims of harassment, but men were
also victims of the harassment.
The 2016 Australia Bureau of Statistics Personal Safety Survey found that
• Two in five people aged 18 years and over experienced sexual
harassment during their lifetime.
• One in two women and one in four men had experienced sexual
harassment during their lifetime.
• In the last 12 months, one in six women and one in eleven
men experienced sexual harassment.
14
A.I.R. 2017 S.C. 4609.
• For both men and women, younger age groups were more likely than
older persons to experience sexual harassment. Approximately 38%
of women and 16% of men aged 18-24 years had experienced sexual
harassment in the 12 months prior to the survey15.
UNITED STATES
According to the US Office of Civil Rights, Sexual Harassment16 has been
defined as
‘Unwelcome sexual advances, requests for sexual favors, and other verbal or
physical conduct of a sexual nature constitute sexual harassment when:
• An employment decision affecting that individual is made because the
individual submitted to or rejected the unwelcome conduct; or
• The unwelcome conduct unreasonably interferes with an individual’s
work performance or creates an intimidating, hostile, or abusive work
environment.’
UNITED KINGDOM:
According to the provisions of Protection from Harassment Act 1997, the word
harassment has been defined under this act as follows:
Harassment means a person who is alarming or distressing another person and
it must involve such conduct on two occasions to constitute as Harassment. This
act has also stated that every individual should be free from harassment and have
the right to be free. This act has also defined what amounts to harassment. The
person should not pursue any conduct which amounts to harassment to another
person or which clearly shows to the reasonable person that such conduct
15
Australian Human Rights Commission, Sexual harassment, 13th April, 2018,
https://www.humanrights.gov.au/our-work/sex-discrimination/projects/sexual-
harassment(visited at 5th Jul 2019)
16
Office of Civil Rights, Sexual Harassment Policy, Jan 29,
2019https://www.state.gov/key-topics-office-of-civil-rights/sexual-harassment-
policy/(Visited at 10 Jul 2019)
amounts to harassment.17 Thus from the above legislations of various

countries, it understood that there has been no specific mention of the word
‘MEN’ in any provisions enacted to curb sexual harassment thus making them
gender- neutral provisions. The authors suggest that just like the other
legislations, our country’s sexual harassment provision should substitute the
word ‘MEN’ with the word ‘ANY PERSON’ to make them gender- neutral
and provide legal rights to men too.
VI. CONCLUSION:
The authors would like to conclude that the men are entitled to protection
under the constitution. Thus, a gender-neutral law should be enacted or an
amendment should be made in the existing provisions as parliament deems
fit. The authors are welcoming the regulations made by the University Grants
Commission (UGC) which gives the right to male students to file a complaint
of Harassment18. It is also pertinent to note that Senior Advocate and Rajya
Sabha member KTS Tulsi has introduced a bill in the Upper House for
amending certain criminal provisions of Indian penal Code to make it gender-
neutral. The bill seeks to provide protection to all persons including men and
any other gender in addition to women from sexual exploitations and also
seeks to punish the offenders of any gender.19 The authors would be satisfied
if steps are taken to implement the regulations effectively and gender-neutral
laws are introduced by the parliament. This article is not to belittle any
gender; the authors are welcoming protection to every gender. The views are
personal.
17
Legislation.gov.uk, Protection from Harassment Act 1997,
https://www.legislation.gov.uk/ukpga/1997/40/contents(Visited at 10 Jul 2019)
18
India Today Web Desk, UGC ruling: Male students can now file sexual harassment
complaints, June 8, 2016, INDIA TODAY, https://www.indiatoday.in/education-
today/news/story/ugc-regulation-13007-2016-06-08 (Visited at 3rd Jul 2019)
19
Live Law News Network, Sr Adv KTS Tulsi Introduces Bill in RS To Make Sexual
Crimes Gender Neutral, Live Law, https://www.livelaw.in/news-updates/kts-tulsi-
introduces-bill-to-make-rape-gender-neutral-offence-146304 (Visited at 12th Jul 2019)
CRITICAL ANALYSIS OF THE NATIONAL REGISTER OF

CITIZENS IN ASSAM: A VIEW FROM ALL
PERSPECTIVES
Riddhiraj Singh Sehgal*
Historical Overview of the National Register of Citizens
National Register of Citizens, 1951:
The origins of influx of migrants into Assam date back to 1826 when the
Yandabo treaty was signed, ceding Assam to the British.1 The next major
influx resulted on two occasions – the first is the partition of India in 1947,
when migration from East Pakistan made Assam a host to a huge number of
migrants and the second being the liberalisation of Bangladesh in 1971,
resulting in another instance of mass refugee migration. Other than these, the
high population density of Bangladesh along with the adversities of nature
made the sparsely populated Assam, a haven of economic growth and
opportunities for them. So, there has been a constant influx on economic basis
as well. According to a white paper on Foreigner’s Issues published by the
Government of Assam in 2012, “The number of such migrants other than
refugees was initially reported by the State Government to be between
1,50,000 and 2,00,000 but later estimated to be around 5,00,000.”2 In the
same light, after the partition of India, the Immigrants (Expulsion from
Assam) Act, 1950 was passed to facilitate the expulsion of these illegal
migrants. Therefore, an enrolment process was carried out under the directive
*Student, Jindal Global Law School, Sonipat

1
“Borders, Histories, Existences” (Google Books)
<https://books.google.co.in/books?id=as9jDwAAQBAJ&pg=PT135&lpg=PT135&dq=yan
dabo treaty immigration
assam&source=bl&ots=ESt4UGPmOo&sig=C7qpy4coPYahSCLLp_BAbXXqXMg&hl=e
n&sa=X&ved=2ahUKEwiK69_g3aneAhVacCsKHZ2SASoQ6AEwDXoECAAQAQ>
accessed October 28, 2018.
2
(White Paper on Foreigners Issue - White Paper - Government of Assam, India)
<https://assam.gov.in/web/home-and-political-department/white-paper> accessed October
28, 2018.
of the Ministry of Home Affairs in the 1951 census for the identification of
the legal ‘citizens’. This was called the National Register of Citizens.
Assam Accord and amendment to the Citizenship Act, 1950:
After the Liberalisation of Bangladesh, the influx of refugees reached a peak
in Assam3. The same became evident through a by election in the Mandaloi
Lok Sabha constituency where the number of voters on the electoral roll of
foreign ethnicity had increased exponentially. This resulted in a situation
which instilled fear and tension in the indigenous inhabitants of Assam. The
demographics of the state started changing which brought a feeling of
insecurity to the indigenous regarding their culture. As a result, the student
leaders came out with protests and formed unions, in the forefront being the
All Assam Students’ Union (AASU) and All Assam Gana Sangram Parishad
(AAGSP) demanding ‘detention, disenfranchisement and deportation’ of the
illegal migrants. This violent agitation lasted six years and culminated in the
signing of the Assam accord – a Memorandum of Settlement between the
AASU and the Central Government. The clauses of this accord were
incorporated in the Section 6A of the Citizenship (Amendment) Act, 1985
which specified different grounds for citizenship that extended to the state of
Assam. The provisions were as follows:4
1) Entrants before the cut-off date of 1st January 1966 were regularised
and recognised as citizens.
2) Entrants between 1st January 1966 and 25th March 1971 were
disenfranchised for 10 years.
3) Entrants after 25th March 1971 would be deported.
3
Ashraf A, “Fact Check: Are Illegal Bangladeshi Migrants Responsible for Increase in
Assam's Muslim Population?” (Scroll.inJanuary 16, 2018)
<https://scroll.in/article/864879/illegal-bangladeshi-migrants-are-not-responsible-for-the-
increase-in-assam-s-muslim-population> accessed October 28, 2018.
4
(the Citizenship Act, 1955) <https://indiankanoon.org/doc/305990/> accessed October 28,
2018.
Update of the National Register of Citizens and current legal standing

After the signing of the Assam Accord, when the agitation died out, little heed
was paid to the provisions of it. The process of detection of migrants was
through Illegal Migrants (Determination by Tribunal) Act, 1983 which placed
the onus on the accuser of proving illegality of the citizenship of the accused.
It was because of its inefficiency that it was struck down in 2005 by the
Supreme Court of India in Sarbananda Sonowal v. Union of India.5 After this,
the tribunals were under the Foreigners Tribunals Order, 1964 which
identified plenty D-Voters i.e. Doubtful voters who were disenfranchised by
the government on the basis of lacking proper citizenship credentials. The
tribunals till 2018, had identified 91,406 foreigners which they have been
sending to any of the six detention camps set up in Assam.6 The first attempt
at updating the National Register of Citizens was in 2010 through a pilot
project in the Kamrup and Barpeta district but had to be ended abruptly as it
was met with violence. Ultimately, the Supreme Court of India, in its 2013
order on the writ petitions filed by Assam Public Works, directed the State
and Union Governments to update the National Register of Citizens in
adherence to The Citizenship Rules, 2003 and the Citizenship Act, 1955. In
order to prove citizenship, a person or ancestor’s name should be enrolled
in National Register of Citizens, 1951 or in the electoral rolls up to 24th
March, 1971. 7 Thus, began the process of updating the same with clauses of
Assam Accord being the primary governing source and the rules of detection
of illegal migrants laid down in the Citizenship Rules, 2003.
5
(Sarbananda Sonowal vs Union Of India & Anr on 12 July, 2005)
<https://indiankanoon.org/doc/907725/> accessed October 28, 2018.
6
Sharma A, “Assam Has Deported Only 29,795 Foreigners” (The PioneerSeptember 25,
2018) <https://www.dailypioneer.com/2018/india/assam-has-deported-only-29-795-
foreigners.html> accessed October 28, 2018.
7
(the Citizenship Act, 1955) <https://indiankanoon.org/doc/305990/> accessed October 28,
2018.
The moral and logistical issues: Understanding all perspectives

The Supreme Court of India has on legal standing strongly asserted the need
for expulsion of illegal migrants from India. It went on to acknowledge that
“The presence of such a large number of illegal migrants from Bangladesh,
which runs into millions, is in fact an aggression on the State of Assam and
has also contributed significantly in causing serious internal disturbances in
the shape of insurgency of alarming proportions.”8 The fact that runs contrary
to the same is how moral is the same expulsion almost 35 years after the
signing of the accord, and whether the people referred to as ‘illegal migrants’
should now after years of settlement be referred to as ‘migrants’ at all. The
basis of their illegality is also something in question on moral grounds.
Another perspective to be looked into is that even if the National Register of
Citizens is justified morally, is it logistically implementable and if it is
implemented, what could be the repercussions that should be kept in mind?
These are some questions that need understanding from all perspectives.
Consequence on the socio-economic scenario of Assam by illegal
migration: The need for National Register of Citizens
The demographical change in Assam is certainly not a myth. As per the data
presented by the India Assam Student Union to the P.M. in 1985, there was
a population increase of up to 34.95% in Assam. 9 The same has persisted
since then, as no action has been taken till now for the expulsion of the
illegal migrants. This has created a feeling of fear and psychosis insecurity
among the indigenous Assamese. It has not only put their cultural survival
at stake but also made their economic and political hold weaker in the state.
Their intrinsic psyche of belongingness to the state has validly made them
8
(The Hindu : National : IMDT Act is the biggest barrier to deportation, says Supreme
Court) <https://www.thehindu.com/2005/07/14/stories/2005071405551200.htm> accessed
October 28, 2018.
9
(Demographic Threats in Assam) <http://www.ivarta.com/columns/OL_050102.htm>
accessed October 28, 2018.
insecure regarding the presence of migrants. The land encroached upon by

the immigrants is another problem for the indigenous Assamese. The
Brahma Committee Report of 2018 found “more than 8000 bhigas of Satra”
to be under encroachment by illegal migrants. 10 The report also emphasised
on the large areas of forest that were earlier deserted which are now under
constant use for cultivation by these migrants. The financial burden on the
state and the decrease in wages with increasing population are also factors
that have affected the indigenous people deeply. The Brahma Committee
Report also reflected the increasing reports of extortion by armed illegal
migrants for land and tea plantations in Assam. The communal issue
aggravates the problem in hand as a majority of immigrants are Muslims
compared to the majority Hindu indigenous Assamese. Moreover, the
presence of these immigrants in the electoral rolls brings in a change in the
political landscape and the dynamics of elections in the state too, creating a
sense of resentment in the indigenous. In this situation, the National Register
of Citizens proves to be a vindication of their point that the immigrants pose
a threat to their identity and culture and hence, see it as a necessary action
for the protection of their rights.
National Register of Citizens: The Problems
The issue of citizenship has always been an important one since it is the only
thing that connects the individual to the state. The state came into functioning
for the sole purpose of welfare of individuals. The National Register of
Citizens, which decides who gets to keep this tie with the state, does it on the
basis of criterion which are intrinsically flawed. It acts as a sacrosanct power
for valid citizenship that becomes unjust at times. The main point raised by
the 40 lakh people not enrolled under the final draft of National Register of
10
“Brahma Committee Report Describes the Threats to Indigenous People of Assam”
(Pratidin Time | Leading News Channel of Assam | Breaking News AssamMay 12, 2018)
<https://www.pratidintime.com/the-brahma-committee-report-an-insight/> accessed
October 28, 2018.
Citizens is that it is gross injustice to render ‘stateless’, the people who have
become a part of the country by building their lives in the local economies
and communities. It is seen as the repercussion of the state’s inaction thirty
ago, that makes these individuals suffer now. A ‘cutoff date’ dating back to
1971, an entirely different era having an effect on the settled lives of these
people today, is nothing better than the state exercising its power to use
National Register of Citizens as an instrument of exclusion without basis
when it should rather reciprocate the belongingness to the people who have
accepted and acknowledged India as their motherland. The updated National
Register of Citizens places its main reliance on the National Register of
Citizens, 1951 and the electoral rolls of 1971 which were carried out years
ago, without any technological database to rely on. Therefore, a minor
procedural inaccuracy in any of these places a risk on the identity of many
individuals out of these 40 lakhs. This causes sufficient reason for the
National Register of Citizens to be flawed intrinsically since, the purpose of
the census of 1951, was not even identified at that time to have such grave
consequences on the future.
The next problem with National Register of Citizens is that it goes against
the fundamental principles of United Nations High Commissioner for
Refugees’ 1951 Refugee Convention. 11Although, India is not a signatory of
the same, by not recognizing refugees in this process of identification, India
goes in contravention to its international policy on asylum seekers. The
Supreme Court of India in Hans Muller of Nurenburg vs Superintendent,
Presidency12 gave “absolute and unfettered” power to the Government to
throw out foreigners. On paper, National Register of Citizens is specifically
11
Sarkar DD, “Why India Won't Sign Refugee Treaty”
(https://www.livemint.com/September 10, 2015)
<https://www.livemint.com/Opinion/bePZQScFIq1wEWv9Tqt4QO/Why-India-wont-sign-
Refugee-Treaty.html> accessed October 28, 2018.
12
(Hans Muller Of Nurenburg vs Superintendent, Presidency ... on 23 February, 1955)
<https://indiankanoon.org/doc/1005538/> accessed October 28, 2018.
for ‘illegal migrants’ and not ‘refugees’ but since India has no dedicated
legislation to recognize the same, they get rendered stateless as illegals. A
majority of the people who migrated to Assam did it under instances of great
border and political changes which resulted in exodus of an extensive nature.
Moreover, the time to demarcate between the refugees and truly illegal
migrants has passed since there now remains no means of verification.
There have been claims of the National Register of Citizens exercise being
accepted well by all the citizens of Assam as there were no instances protest
but the underlying problem here, is that once the identity of an individual as
a citizen is questioned, their right to protest is questioned too which subdues
and oppresses them to an extent where their voices remain unheard. The draft,
in itself, has put a tag of ‘alien’ on them that forms the basis of discrimination
among them in all spheres. Another logistical issue with this process of
identification is that the onus of proving citizenship falls on the individuals,
around 30% of whom are illiterate, giving substantial power of misuse in the
hands of officials against such people.13 Moreover, Assam lies in the
Brahmaputra Valley and has a problem of annual floods which has caused the
destruction of documents and geographical shifting for many. This gives them
no basis for proving their citizenship since the National Register of Citizens
has restrained the concept of citizenship to a piece of certificate only. The
government itself has recognized that there might still be errors in the final
draft of National Register of Citizens that has excluded 4 million people but
fail to understand the burden it is going to be once again for many.
The probable ramifications
The ramifications after the final list of National Register of Citizens is
released will not only have a huge impact on the socio-political scenario of
13
“Assam Population Census Data 2011” (Assam Population Sex Ratio in Assam Literacy
rate data) <https://www.census2011.co.in/census/state/assam.html> accessed October 28,
2018.
the nation but also raise multiple questions to be answered and issues to be
tackled. One big positive change will be the culmination of the ‘outsider’ tag
on a lot of people. The National Register of Citizens when works in exclusion,
also works on inclusion, as a double-edged sword. This will be the first step
to reinstate the social status of those discriminated upon under the tag of
‘outsider’ and give them the Indian status permanently, once and for all. On
the other hand, the first problem that will come up will be that of - which
authority do the excluded approach to re-appeal? The disenfranchised citizens
can appeal to the foreigner tribunals to prove their citizenship, but it will
probably ensue logistical problems owing to the sudden burden on the
tribunals that will entail. Next, would be the question of deportation. The
answer still is unknown as Bangladesh refuses to accept the outflux of
citizens. In this case, if there is not an affective agreement put to function in
time, there will be immense problems on the questions of statelessness. The
stateless citizens when would not have any rights under the Constitution of
India would lack the general components of justice taken away which would
be against the fundamentals of humanity. It may create another Rohingya like
refugee problem with India as the sole responsible. Moreover, with Armed
Forces Special Powers Act being extended in Assam, and these individuals
being alienated from their rights – there exists a wide scope of mistreatment
with no accountability. Another issue that the judiciary would have to look
into, is the citizenship status of the children of these people and how to
conform to fundamental principles of humanity while dealing with them.
Conclusion
The National Register of Citizens in India has not only raised moral questions
pertaining to citizenship but also emphasized on the legal issues it curtails.
While for some it is a protection of their culture and identity, for some it is an
infringement to their right to be recognized under the state. It would not be
wrong to say that it is the means to solve a problem with the potential of
becoming a major problem itself. Whether legitimacy is a stamped paper and
the means of citizenship being just on humanitarian ground is always going
to remain an unanswered question. It is the issue in hand that can be well dealt
with, without any political agendas of the government to ensure that the scales
of lady justice remain balanced. Therefore, a treaty or deal with Bangladesh
is highly essential to ensure that the rights of no individual can be infringed
and justice can be delivered to all who seek it. Thus, it needs to be ensured
that this process only reaches its culmination when no Indian has to be termed
a ‘migrant’ and all those who are, are introduced to a proper system where
they can self-sustain.
RESERVATION: A BLOT ON DEMOCRACY OR A

DEMOCRATIC NECESSITY
Suryansh Tiwari*
Reservation connotes act of keeping back from normal masses some benefits
which are to be provided to the disadvantaged sections of society. It has been
mooted, though without answers, that whether giving reservations on the
basis of caste would be just since the time provisions for reservation have
been introduced in our Constitution. Pandit Nehru wrote a letter to Chief
Ministers on June 27, 1961, emphasizing on the need for empowering
backward groups by giving them access to good education, and not by
reserving jobs based on caste and creed: “I have referred above to efficiency
and to our getting out of traditional ruts. This necessitates our getting out of
the old habit of reservations and particular privileges being given to this caste
or that group. The recent meeting we held here, at which the Chief Ministers
were present, to consider national integration, laid down that help should be
given on economic considerations and not on caste. It is true that we are tied
up with certain rules and conventions about helping Scheduled Castes and
Tribes. They deserve help but, even so, I dislike any kind of reservation, more
particularly in service. I react strongly against anything which leads to
inefficiency and second-rate standards. I want my country to be a first class
country in everything. The moment we encourage the second-rate, we are
lost”1. Indian Society has deeply pervasive caste-system. Reservation as a
policy was introduced to give the disadvantaged classes a level-playing field,
to avoid them from being discriminated on the basis of caste. However, it is
a question of debate that whether it has achieved its purpose or is even likely
to do so in prospect. In our Constitution, Article 15 and 16 provide the basic
* Student, Allahabad University

1
Jawaharlal Nehru, Letters to Chief Ministers 1947-1964, Volume 5, Oxford University
Press, 1989, at 456-457.
foundation for reservation in matters of education and Government jobs

respectively.
First Amendment Act, 1951
[Article 15(4): Nothing in this article or in clause (2) of Article 29 shall
prevent the State from making any special provision for the advancement of
any socially and educationally backward classes of citizens or for the
Scheduled Castes and the Scheduled Tribes.]2
Clause (4) in Article 15 was added to nullify the decision of the Apex Court
in State of Madras v/s Champakam Dorairajan3. In this case, the Supreme
Court struck down an order of Madras Government which sought to apportion
seats in State medical and engineering colleges on the basis of caste of
students of different community. The order of the Government was guided by
the directives laid down in Article 464 of the Constitution. However, the Court
pronounced that “the Directive Principles of State Policy have to conform to
and run as subsidiary to the Chapter of fundamental rights”5. To dilute the
effect of this judgement, Clause (4) was added which authorizes the State to
make any special provision for advancement of socially and educationally
backward classes. What backwardness of a class would mean is question of
significance. In M.R. Balaji v/s State of Mysore6, the Supreme Court held that
Caste cannot be the sole or even predominant factor in determining socially
and educationally backward classes, though it could be a germane factor.
Place of Habitation, Occupation could be other pertinent factors in
determining social backwardness. It is worth mentioning that backward
2
First Amendment Act, 1951, s. 2.
3
AIR 1951 SC 226: 1951 SCR 525.
4
Article 46: The State shall promote with special care the educational and economic interests
of the weaker sections of the people, and, in particular, of the Scheduled Castes and the
Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.
5
Supra, note 3, (AIR) 228.
6
AIR 1963 SC 649: 1963 Supp (1) SCR 439.
envisaged in Article 15(4) is social ‘and’ educational and not social ‘or’
educational.
Reservation in educational institutions
Rabindranath Tagore once said: “In my view the imposing tower of misery
which today rests on heart of India has its sole foundation in the absence of
education”7. This statement is sufficient to show that India as a country
needed education to reach the remotest levels. On the other hand the private
educational institutions wanted their prerogative of keeping away from
reservation policy. The Supreme Court in P.A. Inamdar v/s State of
Maharashtra8 held that neither any policy of reservation can be enforced by
the State nor any quota or percentage of admissions can be carved out to be
appropriated by the State in a minority or non-minority unaided educational
institution and reiterated its take in T.M.A Pai Foundation v/s State of
Karnataka9. Again, Parliament was compelled to bring an amendment in the
Constitution itself which saw the addition of Clause (5)10 in Article 15,
thereby empowering the State to make any special provision, by law, for the
advancement of any socially and educationally backward classes of citizens
or for Scheduled Castes or the Scheduled Tribes regarding their admission to
educational institutions including privately run institutions, whether aided or
unaided by State, other than minority educational institutions referred to in
Article 30(1).
Reservation in educational institutions can certainly be called as democratic
necessity because India suffered from the effects of stratification based on
caste. So, there was certainly a need for parliamentary measure to ensure that
scheduled caste and scheduled tribes students also find a way to get access to
education. The Constitution of India envisages provision of free and
7
Interview with Izvestia, 1930, quoted in Dutta and Robinson (1995), 297.
8
(2005) 6 SCC 537.
9
(2002) 8 SCC 481.
10
93rd Amendment Act, 2006.
compulsory education, by way of 86th amendment in December 2002, through

insertion of Article 21A which provides that State shall provide free and
compulsory education to all children of age of six to fourteen years.
Reservation of Posts or Appointments
Article 16(4): “Nothing in this article shall prevent the State from making any
provision for the reservation of appointments or posts in favour of any
backward classes of citizens which, in opinion of State, is not adequately
represented in the services under State”. The expression ‘any backward class’
used in this article is obscure. Whether a particular class of citizens is
backward or not is an objective factor to be determined by the State. As
evident, Article 16(4) does not qualify the term ‘backward class’ by ‘socially
and educationally’ as is done in Article 15(4). Article 340 of the Constitution
envisages appointment of a commission to investigate the conditions of
‘socially and educationally backward classes’ and such other matters referred
to the commission by the President. But the term ‘backward class’, per se, has
not been defined in our Constitution. Supreme Court in plethora of cases has
construed this term ‘backward class’ in Article 16(4) to mean ‘socially and
educationally’ backward. The scope of Clause (4) came before Supreme
Court’s consideration in T. Devadasan v/s Union of India11. In this case, the
Central Government purported to reserve 12.5 and 5 percent of total
availability of vacancies for SCs and STs in public services in a year. Further,
if the reserved seats remained vacant due to less number of available
candidates, the excess posts shall be ‘carried forward’ to the next year and
shall be added to the number of seats otherwise reserved for that year. The
Court, however, held that in the name the name providing reservation to
backward classes under Article 16(4), the State cannot deny other classes
11
AIR 1964 SC 179: (1964) 4 SCR 680.
reasonable opportunity in matters of public appointment. The Court, thus

struck down the rule, and dubbed it as ‘fraud upon the Constitution”.
It has been seen time and again that while exercising its power vested in
Article 16(4), State undermines the importance of Article 16(1)12. The hard-
to-accept fact is that in India, opportunity for education and for public
employment has always been limited. In a Democracy( India being one ), the
Governments want to have positive attention from all the sections of society.
In a bid to do so, having effectively failed to increase the job opportunities in
the all-time demanded government sector, the political parties try to gain
attention of the sections by providing them more and more reservation. The
effect, sometimes, is undermining of the solemn assurance provided in Article
16(1). Here, it is worthy of mentioning that Article 16(4), as it ostensibly
seems, is not an exception to Article 16(1). This also implies that ‘reservation’
is not contrary to the principle of equality. CJI Balakrishnan on the authority
of the 7-judge bench decision in State of Kerala v/s N.M. Thomas13 held that
“ Artcles 15(4) and 16(4) are not exceptions to Articles 15(4) and 16(1)
respectively”14.These are truly “independent enabling provisions”15. The plea
for freeing reservation under Clause (4) from the grip of Clause (1) of Article
15, or on the same analogy freeing Clause (4) from Clause (1) of article 16
was best explained by Subba Rao, J in his dissenting opinion in T.
Devadasan’s case, when he observed:16 “The expression ‘nothing in this
article’ is a legislative device to express its intention in a most emphatic way
that the power conferred hereunder is not limited in any way by the main
provision but falls outside it. It has not really carved out an exception, but has
preserved a power untrammeled by the other provisions of the article.” The
12
There shall be equality of opportunity for all citizens in matters relating to employment or
appointment to any office under the State.
13
(1976) 2 SCC 310: AIR 1976 SC 490.
14
Ashok Kumar Thakur v/s Union of India (2008) 6 SCC 1, at 107 (para 170).
15
Id. at 85 (para 100).
16
Cited by CJI Balakrishnan in Ashok kumar Thakur at 107 (para 169).
relation between Clause (1) and (4) to Article 16 was made clear in State of
Kerala v/s N.M. Thomas17: “Article 16(4) indicates one of the methods of
achieving equality embodied in Article 16(1)”.
Single Post Reservation: For the first time, the question that whether the
reservation can be stretched to even a single post in a cadre, came before the
Supreme Court in Chakradhar Paswan v/s State of Bihar18. In This case the
Court held that single post in any cadre could not be reserved either at initial
stage or for filling up future vacancy in respect of that post. The Court, later,
in Post Graduate Institute of Medical Education and Research v/s Faculty
Assn.19 reiterated its stand observed that when there is a single post in a cadre,
the same cannot be reserved even through rotation of roster point( thus the
Court overruled its verdict in Union of India v/s Madhav20). Reserving single
post in a cadre would mean creating monopoly which undermines the edifice
of Article 16(1).
Judicial take on Reservation: The decision of the Apex Court in M.R. Balaji
v/s State of Mysore21, in which the Court implied that reservation of
appointments contemplated in Article 16(4) must be within reasonable limits
and reservation should be less than 50%; how much less than 50% would
depend upon the present prevailing circumstances in each case, showed that
the Court wanted to ensure that reservation should not be so excessive in
character so as to deny in practice a reasonable opportunity to other classes.
Similar was the stance of the Court in T. Devadasan v/s Union of India22, in
which the Court invalidated the “carry forward rule”, dubbing it as ‘fraud
upon the Constitution’. The Court in this case observed: “...The Guarantee is
to each individual citizen and therefore, every citizen who is seeking
17
supra, note 13.
18
(1998) 2 SCC 214: AIR 1988 SC 959.
19
(1998) 4 SCC: AIR 1998 SC 1767.
20
(1997) 2 SCC 332.
21
Supra, note 6.
22
Supra, note 11.
employment or appointment to an office under the State is entitled to be

afforded an opportunity for seeking such employment or appointment
whenever it is intended to be filled. In order to effectuate the guarantee, each
year of recruitment will have to be considered by itself and reservation for
backward communities should not be so excessive as to create monopoly or
to disturb unduly the legitimate claims of the other communities”.
There was a remarkable change in approach of the Court in State of Kerala
v/s N.M. Thomas23 . In this case, the Government exempted, for 2 years, the
members of SC/ST employees of registration department from passing the
departmental test for promotion to higher posts. Due to this, in a particular
year out 51 post nearly 68 percent had gone to candidates belonging to SCs
and STs. The Court held the rule as valid as classification of employees
belonging to SC and ST for allowing them a exemption of 2 years is a
reasonable classification, having nexus with the object of providing adequate
representation to SCs and STs in State Services in Kerala.
In ABSK Sangh (Railway) v/s Union of India24, the Court had to pronounce
upon the constitutionality of a railway circular board circular providing
64.4% reservation in selection posts for candidates belonging to SCs and STs.
The Court in this case upheld the ‘carry forward rule’ observing that
mathematical precision could not be applied in dealing with human problems.
Indra Sawhney v/s Union of India25(MANDAL COMMISSION CASE)
Background: The first Backward Class Commission was headed by Kaka
Kalelkar and it submitted its report on March 30, 1955. It recommended that
traditional occupation, estimated population, profession, literacy percentage,
distribution throughout the State were the factors to be taken into account for
classifying a community as a ‘backward class’. However, the report could not
23
Supra, note 13.
24
(1981) 1 SCC 246: AIR 1981 SC 298.
25
AIR 1993 SC 477: 1992 Supp (3) SCC 525.
be implemented. In 1979 (1st January), second Commission was established,

called as Mandal Commission with a mandate to ‘identify socially and
educationally backward classes’ of India. The report of the Commission was
submitted on December 31, 1980 and the report was principally based on
caste as the predominant criterion for reservation in Government jobs. The
Commission had sent out a questionnaire consisting of eleven questions
which were more or less based on caste. The questionnaire specified eleven
indicators which were broadly divided into three groups26:
A. Social
i). Castes/Classes considered as socially backward by others.
ii). Castes/Classes which mainly depend on manual labour for livelihood.
iii). Castes/Classes where at least 25% females and 10% males above the
State average get married at an age below 17 years in rural areas and at least
10% females and 5% males do so in urban areas.
iv). Castes/ Classes where participation of females in work is at least 25%
above the State average.
v). Castes/Classes where the number of children in the age group of 5-15
years who never attended school is at least 25% above the State average.
vi). Castes/Classes where the rate of student drop-out in the age group of 5-
15 years is at least 25% above the State average.
vii). Castes/Classes amongst whom the proportion of matriculates is at least
25% below the State average.
C. Economic
viii). Castes/Classes where the average value of family assets is at least 25%
below the State average.
ix). Castes/Classes where the number of families living in Kuccha house is at
least 25% above the State average.
26
SOLI J SORABJEE & ARVIND P DATAR, THE COURTRROM GENIUS, 193 (2012).
x). Castes/Classes where the source of drinking water is beyond half a

kilometer for more than 50% of the households.
xi). Castes/Classes where the number of households having taken
consumption loan is at least 25% above the State average.
The social indicators were given weightage of three points, educational and
economic indicators two and one point respectively.
The Case: The above data has been cited to show that Caste was the
predominant factor taken into consideration while making the report.
Furthermore, many castes were included solely because they were mentioned
in the Kaka Kalelkar Commission. In toto, 3743 Castes were identified as
‘backward class’. In 1989, the Congress Party was defeated in the
Parliamentary elections. Janata Dal, which came to power, decided to
implement the Mandal Commission’s report as was promised by it to the
electorate. Pursuant to this, Government issued an official memoranda (O.M.)
reserving 27% seats for Backward Classes in Government Services. A Writ
petition against this was filed (on the behalf of Supreme Court Bar
Association) and the five Judges bench of the Court stayed the its operation.
Meanwhile, Janata Dal collapsed and Congress party returned to power in
1991. It issued another O.M. and made two changes to the one issued by
Janata Dal: i). It introduced economic criterion in granting reservation by
giving preference to the poorer sections of socially and educationally
backward classes in 27% quota. ii). Another 10% reservation for “other
economically backward sections of the people”.
Judgement: By a majority of 6:3, the Court upheld the first memorandum
but invalidated the addition of 10% by the second. In a nutshell following
were the takeaways from the judgement:
• Backward Class of citizens in Article 16(4) can be identified on the
basis of caste and not only on economic basis. Since Caste represented
an existing, identifiable social group/class encompassing an
overwhelming majority of country’s population, the Court held, one

could well begin with it and then go to other groups, sections and
classes. However, Caste is not an essential factor for determining the
social and educational backwardness.
• Article 16(4) is not an exception to Article 16(1).
• Creamy layer must be excluded from the SEBCs.
• A backward class of citizens cannot be identified exclusively with
reference to economic criteria.
• Reservation shall not exceed 50%.
• There shall be no reservation in promotions. The majority, in this
regard, observed: “While it is certainly just to say that a handicap
should be given to backward class of citizens at the stage of initial
appointment, it would be a serious and unacceptable inroad into the
rule of equality of opportunity to say that such a handicap should be
provided at every stage of promotion throughout their
career…Crutches cannot be provided throughout one’s career.”
• Within SEBCs, classification between backward and more backward
is permissible.
The Court also made it clear that ‘backward class of citizens’ in Article 16(4)
is a wider category than socially and educationally backward classes in
Article 15(4) and Article 340. As per Kania, CJ and Venkatachaliah, Ahmadi
and Jeevan Reddy, JJ. : “The assumption that the expression ‘backward class
of citizens’ in Article 16(4) means the same thing as the expression ‘any
socially and educationally backward class of citizens’ in Article 15(4) has no
basis … Though Article 340 employs the expression ‘socially and
educationally backward classes’ and yet that expression does not find place
in Article 16(4). The reason is obvious: backward classes of citizen in Article
16(4) takes in Scheduled Tribes, Scheduled Castes and all other backward
classes of citizens including socially and educationally backward classes.
Thus certain classes which may not qualify for Article 15(4) may qualify for
Article 16(4) as backward class of citizens”27. Kuldip Singh, J. observed28: “
The intention of framers of the Constitution, gathered from the Constitutional
Assembly debates, leaves no manner of doubt that the two classes to be
identified in the two articles are different and as such the expressions used in
the two articles cannot mean the same. Sahai, J. observed29: “The backward
class in Article 16(4) and socially and educationally backward classes in
Article 340, being expressions with different connotations they cannot be
understood in one and the same sense. The one is wider and includes the other.
A socially and educationally backward class may be a backward class but not
vice versa. Moreover, it cannot be caste based”.
In Ashoka Kumar Thakur v/s Union of India30, the Constitutionality of
Central Educational Institutions (Reservation in Admission) Act, 2006 and
the 93rd Amendment Act, was called into question. The Court upheld the
amendment as well as the Act. The Court also upheld the exclusion of
minority educational institutions from Article 15(5), stating that the same is
not violative of Article 1431 of the Constitution as the minority educational
institutions are by themselves, a separate class and their rights are protected
by other constitutional provisions.
Reservation in promotion: After the verdict in Mandal Commission case,
no reservation in promotion could be made under Clause (4) of Article 16. To
overcome this difficulty, Clause (4-A)32 was inserted by the Parliament;
Article 16(4-A): “Nothing in this article shall prevent the State from making
any provision for reservation in matters of promotion (with consequential
27
Supra, note 25 (para. 786,787).
28
Ibid, para. 357.
29
Ibid, para. 583.
30
(2008) 6 SCC 1.
31
The State shall not deny to any person equality before the law or the equal protection of
laws within the territory of India.
32
77th Amendment Act, 1995.
seniority)33to any class or classes of posts in the services under the State in
favour of the Scheduled Castes and Scheduled Tribes which, in the opinion
of State, are not adequately represented in the services under the State”.
Before the Mandal Commission case, in G.M Southern Rly. v/s Rangachari34
the Court had held that reservations will apply not only to initial appointments
but to selection posts as well. In N.M. Thomas35 and ABSK Sangh36 cases
also, the special provision for reservation was held to be valid, with, however,
due regard given to efficiency. However, the Mandal Commission Case
overruled these cases on this point holding that reservation of appointment or
posts under Article 16(4) is confined to initial appointment only and cannot
extend to providing reservation in matter of promotion. The reason of this
verdict was that Court apprehended the risk of efficiency being put at stake
otherwise.
Even after the insertion of Clause(4-A), the Apex Court tried to balance the
opposing interests by its decision in Union of India v/s Virpal Singh
Chauhan37 and later in Ajit Singh v/s State of Punjab38 by holding that
reservation in promotion shall not affect the seniority order. Seniority of a
person getting the benefit of reservation in promotion shall be decided by the
panel position. This, in simple terms, means that a senior general candidate at
lower level, if he reaches the promotional level later but before the further
promotion ogf reserved category candidate, will be treated as senior at the
promotional level to the reserved category candidate, despite the fact that
reserved category candidate was promoted to that level earlier. To nullify
these decisions, Parliament passed the 85th Constitutional Amendment Act
33
Ins. By 85th Amendment Act, 2001.
34
AIR 1962 SC 36: (1962) 2 SCR 586.
35
Supra, note 13.
36
Supra, note 24.
37
(1995) 6 SCC 684: AIR 1996 SC 448.
38
(1999) 7 SCC 209: 1999 SCC (L&S) 1239.
which incorporated the phrase “with consequential seniority” in Article 16(4-

A).
Article 335 of the Constitution of India provides: “The claims of the members
of the Scheduled Castes and the Scheduled Tribes shall be taken into
consideration, consistently with the maintenance of efficiency of
administration, in the making of appointments to services and posts in
connection with the affairs of the Union or of State”. In the light of the above
provision, and considering the premise that equality is the basic feature our
Constitution, it is humbly submitted that this amendment providing for
reservation in promotions, violates this basic feature of equality. Article 16(4)
which provides for reservation of appointments or posts in favour of
backward classes, strives to achieve the overall goal of equality. However, it
takes some effort to digest that Clause (4-A) attempts to achieve the same.
Once a person is appointed in a service under the scheme of reservation, has
he not been upgraded up the Social ladder? So, now to promote him under the
scheme of reservation cannot be seen as striving for the ultimate aim of Social
equality. The basis which was there for providing him appointment to a post
through reservation, is not present now. There, apparently, is no basis for
discriminating amongst the people working in the same cadre of services.
Providing reservation in promotions may also make them complacent because
they know promotion would be provided to them, which may lead to
undermining of efficiency of administration. The majority in Indra Sawhney
v/s Union of India39 had expressed somewhat similar sentiments: “… That
would mean creation of a permanent separate category apart from
mainstream- a vertical division of administrative apparatus. The members of
reserved categories need not have to compete with others but only among
themselves. There would be no will to work, compete and excel among them.
39
Supra, note 25.
Whether they work or not, they tend to think, their promotion is assured. This
in turn is bound to generate a feeling of despondence and ‘heart- burning’
among open competition members. All this is bound to affect the efficiency
of the administration”. Having said this, the Court in M. Nagaraj v/s Union
of India40, upheld the amendment. However, the Court held, the State shall
ensure compliance with Article 335 and shall ensure that reservation
provision does not obliterate the 50% limit or extends indefinitely.
Conclusion: There have been arguments for and against reservation. The
principal argument against reservation is that the policy of reservation ignores
merit, causing inefficiency in administration. This argument is however
generally countered by providing that marks in exams are not the sole
indicators of the merit of a person; efficiency of administration is to be
measured by the fact that whether the administration is responsive and
inclusive. There have been arguments galore but to no end. Reservation has
its positive aspects, the primary being that reservation helps in attaining social
justice by providing the disadvantaged and marginalized sections an
opportunity to become the part of mainstream of the society, as well as it has
a negative impact as well. Whether Caste-based reservation has helped the
country or has defeated its own purpose by reigniting the caste structure in
the society cannot be appropriately answered. The Legendary Lawyer Nani
Palkhivala, disappointed by the judgement in Mandal case, in a two-part
article in the Times of India41, wrote: “I am sure V.P. Singh was sincere when
he said that after the Supreme Court judgement in the Mandal Case he could
die in peace. But his policy has ensured that nation will not live in peace…”.
It is the notion of caste that is the basis of reservation, so if on one hand it is
argued that it strives to attain social justice and equality, on the other it
40
(2006) 8 SCC 212: AIR 2007 SC 71.
41
November 24 and 25, 1992, quoted in THE COURTROOM GENIUS BY SOLI J
SORABJEE & ARVIND P DATAR.
strengthens the stratification based on caste. The arguments revolving around

Social justice v/s efficiency still continue. The Court in the Mandal case was
of the view that reservations in education for super-specialities and in certain
services requiring special skills such as defence, technical and scientific
services, pilots etc, is not advisable. There can be no disagreement regarding
the premise that in making special provision for the weaker sections for the
higher education, the standard of education or efficiency of the administration
should not be compromised with to the detriment of National Interest.
The problems revolving around the policy of reservation have not arisen in a
day and thus they cannot be solved in a day or through a policy. Still,
emphasis should be given on primary education. The policy of reservation
has to be extended to primary levels of education. If a candidate is given
admission in educational institutions through the scheme of reservation, he,
practically, cannot deal with the pressure and environment there unless his
primary education has been of the same class. Furthermore, there should be a
periodic, proper review of this policy. ‘Once a reserved category, always a
reserved category’ rule should be abolished. Logically, once a person has
achieved certain status and has become the part of mainstream of the society,
his children cannot be said to be of disadvantaged class.
However, all these solutions are only ‘text-book’ solutions unless the era of
appeasement politics ends in this country. All governments, generally, have
supported reservation in an attempt to garner votes from all the sections of
the society. Lastly, it is still debatable whether reservation in India is a
Democratic necessity but it can certainly be concluded as a ‘political
necessity’.
THE #METOO MOVEMENT AND THE LIST: A RADICAL

INQUIRY
Varsha Banta*
“While gossip among women is universally ridiculed as low and trivial,

gossip among men, especially if it is about women, is called theory, or idea,
or fact”.1
In competitive environments, be it the corporate rat-race or political
playgrounds, everyone, women and men alike, are out to get the other. It isn’t
a novel concept to look out for oneself above everyone; self-interest and
greed have been described as the Hobbesian essence of being human.
However, there is that rare occasion when women watch out for other women.
The seasoned partner at a firm may inform the new associate about the over-
eager ones, or a casting couch assistant might inform an enthusiastic
debutante of the duplicitous director. This informal, yet surprisingly effective
channel of gossip, is what is called ‘the whisper network.'3 Non-institutional
channels of information have existed much longer than we believe. Indeed, it
was how trade was effected, wars were anticipated, and scandalous and
possibly destructive news was passed on to leaders of the states by spies,
sometimes cloaked with the protection of anonymity. Despite this, a majority
of the current feminist discourse views it with unflinching contempt.
Nonetheless, this contempt and derision fail to take into account the years of
suppression of women's’ experiences of sexual assault and rape, something
that the State regularly practices.4 This assault on women- by women, is much
larger and precarious than the sexual crimes committed against them – their
dismissal.5
This paper is not an ode to the women who dared to call out their assailants.
It is not a biased account against the long and colorful history of male
manipulation of legal institutions.6 It is a radical inquiry into fallacies and
failures of existing legal mechanisms to met out justice, the shielding of the
assailants by state and non-state agents6 alike under the garb of ‘due process,'
and the contentious ethics of informal methods of accusation to prove
culpability.1
Catherine MacKinnon states, "If the sexes are unequal and perspective
participates in a situation, there is no ungendered reality or ungendered
perspective."7
The reason that this theoretical approach will be adopted is because often
liberal feminism creates abstractions which systematically subordinate the
efforts of women to bring about specific claims8, and Marxist feminist theory
scarcely addresses the concerns of women except in its primary objective to
critique the State. Other accounts of legal reasoning enforce constructed
dichotomies upon our understanding of feminism. Psychologist Carol
Gilligan’s research into child development argues that girls often tend to
invoke an "ethic of care," whereas boys operate from neutral vantage points
guided by an "ethics of rights," justice and fairness.9 Although Gilligan
attributes these tendencies to child-rearing practices10, what it does is
normalize the gendered socialization of women as meek, care-givers
incapable of making rational, de-contextualized decisions, relying then
1 ANDREA DWORKIN, RIGHT-WING WOMEN: THE POLITICS OF

DOMESTICATED FEMALES, 1983.
2 George H. Smith, Self -Interest and Social Order in Classical Liberalism: Thomas Hobbes,
LIBERTARIANISM.ORG, (Nov. 21, 2014), https://www.libertarianism.org/columns/self-
interest-social-order-classical-liberalism-thomas-hobbes.
3 Jia Tolentino, The Whisper Network After Harvey Weinstein and "The Shitty Media Men,"
THE NEW YORKER, (Oct. 14, 2017), https://www.newyorker.com/news/news-desk/the-
whisper-network-after-harvey-weinstein-and-shitty-media-men.
4 Vol. 8, no.4, CATHERINE MACKINNON, FEMINISM MARXISM, THE METHOD
AND THE STATE: TOWARDS FEMINIST JURISPRUDENCE 643 (The University of
Chicago Press, 1983).
5 Supra note 4, at 638.
heavily on the ‘neutral’ state, and subsequently ‘the neutral man’.11
The following analysis will be divided into three parts. Part one will engage
with two correlated, but differing examples of non – institutionally made
sexual allegations – first being the #MeToo campaign that took Hollywood
by storm, calling out the industry’s big names such as Harvey Weinstein,
David Copperfield, and Michael Douglas among others12, and the second
being Raya Sarkar’s controversial list of sexual offenders in academia.13 Part
two, will deconstruct the failures of the current institutional mechanisms, and
argue that recourse to these remedies in both scenarios discussed in Part I
would either justify state complicity and women’s’ continued
insubordination, or not guarantee justice at all – neither one better than the
other. 2
Lastly, part three would delve into the ethics of “naming and shaming”14 and
the possible reasons for staunch opposition by the state, along with what many
call ‘Savarna’15 or ‘Kafila’16 feminists, who fervently defend the Courts as
the sole repositories of all that is just and fair.17 It will be argued that feminists
such as Nivedita Menon, who have been bold advocates for the feminist
movement, by their critique18 are falling prey to the same caste-ist and
segregationist tendencies that once inhibited it.19 3
7 Supra note 6.
8 Supra note 4 at 643.
9 Hilary Charlesworth, Christine Chinkin and Shelley Wright, Feminist Approaches to
International Law, Vol. 85, No. 4, 613, 615 (1991).
11
12 Post-Weinstein, These Are the Powerful Men Facing Sexual Harassment Allegations,
(Feb. 26, 2018, 5:15 pm), https://www.glamour.com/gallery/post-weinstein-these-are-the-
powerful-men-facing-sexual-harassment-allegations.
13 Elizabeth Cassin and Ritu Prasad, Student’s ‘Sexual Predator’ List Names Professors,
BBC TRENDING, (Nov. 6, 2017), http://www.bbc.com/news/blogs-trending-41862615.
14 Supra note 13.
PART I
On a Sunday evening, Hollywood actress Alyssa Milano took to Twitter with
an idea. She urged any women who have been sexually harassed or assaulted
to write two words on Twitter: “Me too.”20 Women of all ages, professions
and income groups came out on social media to share their experiences of
rape, sexual assault, and harassment. What Milano aimed to achieve was
shedding light on the magnitude of the problem.21 This was, however, not the
first instance of what many like to call “hashtag activism”.22 Just over a year
ago, a similar response, under the hashtag #NotOkay, followed a leaked 2005
“Access Hollywood” video in which Donald Trump boasted about kissing
and groping women.23 However, little did they know that 53% percent of
American women24 would elect a known sex offender to Presidential office.4
15 Bhanuj Kappal, Breaking The “Savarna Feminism” Rules – How Raya Sarkar’s List Of
Alleged Harassers Divided Opinion In India, NEW STATESMAN, (Nov. 30, 2017)
https://www.newstatesman.com/politics/feminism/2017/11/breaking-savarna-feminism-
rules-how-raya-sarkar-s-list-alleged-harassers.
16 Nivedita Menon, Statement By Feminists On Facebook Campaign To "Name And Shame,"
KAFILA, (Oct. 24, 2017), https://kafila.online/2017/10/24/statement-by-feminists-on-
facebook-campaign-to-name-and-shame/.
17 Nivedita Menon, In the wake of the AUD report, KAFILA, (Mar. 10, 2018),
https://kafila.online/2018/03/10/in-the-wake-of-the-aud-report/.
18 Supra note 17.
19 #NameThemShameThem and The Hypocrisy of Savarna Feminists, VELIVADA,
http://velivada.com/2017/10/27/name-them-shame-them-hypocrisy-savarna-feminists/.m
20 Samantha Schmidt, #Metoo: Harvey Weinstein Case Moves Thousands To Tell Their Own
Stories Of Abuse, Break Silence, THE WASHINGTON POST, (Oct. 16, 2017),
https://www.washingtonpost.com/news/morning-mix/wp/2017/10/16/me-too-alyssa-
milano-urged-assault-victims-to-tweet-in-solidarity-the-response-was-
massive/?utm_term=.b2e28ce40f7b.
21 Supra note 20.
22 David Carr, Hashtag Activism And Its Limits, THE NEW YORK TIMES, (Mar. 25, 2012),
https://www.nytimes.com/2012/03/26/business/media/hashtag-activism-and-its-limits.html.
23 Supra note 20.
24 Lois Beckett, Rory Carroll, Carmen Fishwick, Amber Jamieson and Sam Thielman, The
Real ‘shy Trump’ Vote, THE GUARDIAN, (Nov. 10, 2016),
https://www.theguardian.com/us-news/2016/nov/10/white-women-donald-trump-victory.
This is the power of the state, and this is the power of its male domination.25
What was different from the conventional way of reporting cases to state
authorities – county police or the sex crimes helpline – was the nature of
dialogue. This conversation was collective; it transcended age and race – it
couldn't be dismissed so easily. The insurmountable nature of #MeToo26 was
what threatened its critics. The most visible line of accusations, however, was
leveled against film mogul Harvey Weinstein. On the 5th October 2017, The
New York Times wrote a scathing exposé on Weinstein’s sexual advances
towards and payoffs to the women he worked with.27 He'd ask them to
breakfast, call them up to his lavish suites and make explicit sexual overtures
in return for professional favors, what many eager women saw as a potential
push up the ladder to success.28
One of Weinstein’s employees wrote a memo asserting allegations of sexual

assault,29 courtesy what seems to be the whisper network. It is important to
note that this occurred two decades ago, at a time when women were
enthusiastic to showcase their potential to men in power.30 5
Even more disturbing is the fact that Weinstein’s lawyers dismissed any
substance to the claims, deeming the settlements made to accusers as “the
avoidance of litigation.”31 This is the universality of male power.32 The intra-
gender protection is not exclusive to women – men protect other men too
from the feminists or the “feminazis”33 who are out to get them.
25 Supra note 6.
26 Supra note 20.
27 Jodi Kantor and Megan Twohey, Harvey Weinstein Paid Off Sexual Harassment Accusers
For Decades, THE NEW YORK TIMES, (Oct 5, 2017),
https://www.nytimes.com/2017/10/05/us/harvey-Weinstein-harassment-allegations.html.
28 Supra note 27.
29 Supra note 27.
30 Supra note 27.
However, it is Weinstein’s response to these allegations, which is even more

problematic than their sheer magnitude. He claims “he came of age in the
60’s and 70s, when all the rules and behavior about workplaces were
different.”34 He further goes on to say that he'd be taking therapy to "learn
about himself." While self-betterment and introspection are fruitful in itself,
it doesn't undo the trauma caused to women who experienced this coercion.
The question that is intriguing is, what had led Weinstein, and the other
accused through the campaign to infer consent?35
Susan Brownmiller argues, whether or not the victim offered sufficient

resistance to the sexual assault or advance hinges upon proving lack of
consent in a court of law.36 However, MacKinnon argues that the very
concept is flawed by an inherent power imbalance between victim and
assailant (assuming heterosexuality).37 She further qualifies this by saying
that the socialization of women leads to passive receptivity38, which in turn
leads the man to actively extract this tacit, pre-existing consent – through
situational indicators, such as location, shared intimacy or the woman’s
personality and character.39 6
31 Supra note 27.

33 Charlotte Proudman, I Was Labeled A Feminazi – Here’s How You Can Fight The Word,
THE GUARDIAN, (OCT. 1, 2015),
https://www.theguardian.com/commentisfree/2015/oct/01/feminazi-feminists-women-
rights-feminism-charlotte-proudman.
34 Supra note 27.
36 SUSAN BROWNMILLER, AGAINST OUR WILL – MEN, WOMEN AND RAPE, 383,
(Ballantine Books, 1975).
37 Supra note 35.
38 Supra note 35.
39 SIMONE DE BEAUVOIR, THE SECOND SEX, 658, (Vintage Books, 2011).
This extraction by the man causes rape to be viewed as his crime and not the
woman’s injury.40 It is interesting to note that in his response to the sea of
allegations, Weinstein stated that, “many claims in Ms. O’Connor’s memo
were “off base”, and they had parted on good terms”.41 What enables this
dangerous disparity between the reality constructed by the assailant and that
of his victim42, is his presumption, extraction and if necessary, manufacturing
of consent. The ability to prove this consent in a court of law invalidates the
very experience of the woman43 deriding it as malicious.44
Feminism, MacKinnon argues, has a “theory of power”.45 All relationships,

especially those in the workplace where the structural hierarchy necessitates
ranks of seniority, involve a series unequal power relationships. With these
power relationships, come power dynamics and ploys for more power. Many
46
a time, this power manifests itself as sexual politics. Particularly in work
environments where there is a lot at stake for juniors, professionally and
assuming intimacy, otherwise, too, seniors may engage a power play dangling
success – perks, favorable treatment, withholding even their primary duties –
as a means of coercion47 to extract consent to sex. A sphere replete with this
coercive bargaining48 is academia.49
The surge of the #MeToo movement reverberated in India. Raya Sarkar, a

24-year old law student, asked fellow students to share their experiences with
"academics who have sexually harassed or were sexually predatory towards
them".50 7

41 Supra note 20.
44 Supra note 43.
46 Supra note 32.
47 Supra note 40.
Popularly known as the ‘The List’51, it was a step beyond #MeToo – it made
the “whisper network”52 of potential and experienced predators, public. The
backchannels had finally come to the forefront, and created profoundly
divided opinions on the veracity and legality of the list. Partha Chatterjee,
well known in Indian academic circles asked Sarkar to disclose the nature of
the claim, which Sarkar declined saying that those university officials
investigating the case could be known to Chatterjee, and this could instigate
further discrimination.53 More recently, Lawrence Liang, a law professor at
Ambedkar University Delhi was held guilty of sexual harassment by the
Committee for the Prevention of Sexual Harassment, four months after
Sarkar’s List was published in October, 2017.54 The complainant, a researcher
who had been working with Liang while both were Ph.D. students, faced
multiple sexual advances. She recounts in her complaint that Liang proceeded
to make kiss and grope her despite her explicit refusal. She further states that
Liang did not apologize because he liked her.55
On the release of The List, Liang purportedly apologized to the complainant,

and trivialized it as a "totally misread situation." The defense put forth by
Liang is immensely problematic. Not only does he categorically deny the
allegations owing to his belief of a "borderline romance" and a "mutual
attraction," he dismisses even the possibility of her experience because the
law "does not accommodate the complexities of actual interactions between
people".56 8
48 Supra note 20.

49 Supra note 13.
50 Supra note 13.
51 Supra note 13.
52 Supra note 3.
53 Supra note 13.
54 Arefa Johari and Shreya Roy Chowdhury, Why Ambedkar University Held Law Professor
Lawrence Liang Guilty Of Sexual Harassment, SCROLL.IN, (Mar. 8, 2018),
Although the committee has recommended penal action against Liang57,

which by due process, he would rightfully be allowed to appeal against, the
faulty construction of the consent defense, which is often accepted by courts,
still stands unresolved. Ultimately, it comes down to a “he said-she said”
claim, where the absence of consent is ascertained by the forcefulness of
resistance.58 This creates an unusual standard, with it presuming the assault to
be physically aggressive. Similar to Weinstein, Liang believes his subjective
construction of events to be the subjective reality.59
The common threads that weave these two instances are their location beyond
institutional frameworks, their alleged violation of natural justice principles,
and the questionable ethics of their methodology. The following section will
examine the failures of "due process," and its role in women's
insubordination.9
PART II
The opponents of the #MeToo movement, and more specifically The List
have been the flag bearers for words such ‘due process’ and ‘natural justice’.60
Due process in India is enshrined in Article 21 of the Indian Constitution
typically understood to mean that "No person shall be deprived of his life or
personal liberty except according to procedure established by law."61 This
procedural model of due process is followed both in the United States and
India62, contexts within which #MeToo and The List took place. Thus what
https://scroll.in/article/871321/why-ambedkar-university-held-law-professor-lawrence-
liang-guilty-of-sexual-harassment.
55 Neerja Deodhar, Complainant's Letter to CPSH of AUD, SCRIBD,
https://www.scribd.com/document/373372308/Compainant-s-Letter-to-CPSH-of-AUD.
56 Supra note 54.
57 Supra note 54.
58 Supra note 36.
59 Supra note 43.
becomes clear is that the dismay expressed against these movements is

because the said procedures have been established not by law but by the
women, governed by law. The due process element is instrumental and
encompassed within the grander scheme of natural justice63.
Primarily, two principles of natural justice are understood to be the essential

guiding factors for a fair hearing – the hearing rule and the bias rule.64 The
first is concerned with the right of each to be afforded and adequate
opportunity to be heard, and the latter dictates that no one ought to be a judge
in their case.65 Ironically, although the Romans believed these rules to be self-
evident and indispensable,66 often it is the Courts themselves that end up
violating the principles they believe themselves to be so strictly bound by.
A deeply problematic judgment was that delivered by the Delhi High Court
in 2016, in the case of Mahmood Farooqui v State (Govt. of NCT of Delhi).67
Again this was an illustration of a guide-researcher, similar to Liang's
example and akin to the employer-employee relationship in the Weinstein
case. 10
60 Supra note 16.

61 Victor V. Ramraj, Four Models Of Due Process, Vol. 2, No. 3, OXFORD UNIVERSITY
PRESS AND NEW YORK UNIVERSITY SCHOOL OF LAW, 492, 494, (2004).
64 Dr. Matthew Groves, The Rule Against Bias, Vol. 35, HONG KONG LAW JOURNAL,
485, (2009).
65 Supra note 64.
66 The Editors of Encyclopaedia Brittanica, Natural Law, BRITTANICA,
https://www.britannica.com/topic/natural-law.
67 Mahmood Farooqui v State (Govt. of NCT Delhi), 2017 SCC OnLine Del 6378.
What is more troubling than the precedent this judgment sets in the aftermath
of the gruesome Nirbhaya gang rape68 which shook the nation to its core, is
the line of reasoning and blatantly sexist language employed by Ashutosh
Kumar, J.69 The judgment begins with a definitional deconstruction of
consent, outlining an affirmative model, meaning "yes is yes and no is no".
Sadly, the Court goes on to qualify this assertion by stating that "In the act of
passion, actuated by libido, there may be myriad circumstances that could
surround consent and it may not necessarily always mean yes in the case of
yes or no in the case of no".70 In making these claims, the Court also makes
dangerous assumptions such as the norm of the male’s sexual initiation, and
the female’s passive receptivity to it, the former’s verbal expression of
interest and the latter’s non-verbal expression of affirmative consent or
positive denial.71
Further, the Court admits the complainant’s claim that she experienced a fear
of rape and death, envisioning the Nirbhaya incident, but stated later that the
accused did not have an opportunity for this to be made known to him.72 Due
to the fact that sexual consent is the key element for proving sexual assault in
rape law,73 what this line of reasoning does is indirectly place the burden of
proof on the complainant, by placing the burden of creating an opportunity to
express denial of consent to the accused. This is despite the fact that Section
375 of the IPC categorically places the onus of disproving guilt upon the
accused.74
A shift of the onus from the assailant to the victim is illustrative of the male
state. MacKinnon argues that both men and the state perceive women the
same way – coercive and legitimizing norms and substantive rules are
constructed to benefit men, and as a consequence, the State dominated by

male-discourse.75 11
The state is therefore complicit in the subordination of women through its

cynicism of their accounts, and blind faith of the male perpetrators. The
judgment even goes on to create a defense of inebriation and insanity, under
Farooque’s bipolarity, almost as if yearning to exonerate him. The judgment
avoids the task of determining whether he could at all decipher the
complainant’s verbal and non-verbal cues of resistance.76 Like the man, it
doesn't infer but manufactures consent through past conduct, intimacy and
most recklessly, from the feebleness of her ‘no.'77 12
PART III
It is a utopian to believe that any redressal mechanism, institutional or

otherwise would be without any fault or lacunae. Constructive dialogue is
nonetheless, instrumental to identifying and lessening the degree of these
faults. Let us consider the criticism directed at The List78, for instance, for
reasons of its contextual proximity. Many Indian feminists who were the
frontrunners in an era when feminism was still a nascent school of thought in
India, have called out the list for its violations of due process and natural
justice.79 A renowned blog, called Kafila composed of equally renowned
68 State (Govt NCT of Delhi) v Ram Singh & Others, S.L.P (Criminal) Nos. 3119-3120 of
2014.
69 Supra note 67.
70 Supra note 67.
71 Supra note 67.
72 Supra note 67.
73 Supra note 36.
74 Section 375, The Indian Penal Code (45 of 1860).
76 Supra note 67.
77 Supra note 67.
feminist writers and thinkers such as Nivedita Menon, theoretical linguist

Ayesha Kidwai and lawyer Vrinda Grover released a statement shortly after
the list expressing their dismay, owing to its lack of context and veracity.
Sarkar, the mind behind the crowd-sourced compilation has been an active
voice against caste-ist and segregationist feminism.80 Many apart from
Sarkar, who believe in the substance and not the methodology of The List,
often referred to as the post-list feminists81, describe critics such as Menon as
‘Savarna feminists.'82
A savarna, as opposed to avarna, refers to the forward castes within

Hinduism, including Brahmins, Kshatriyas, Vaishyas, and Shudras. Those
not belonging to these sub-categories are referred to as avarnas.83 13
The reason for this parallel is a more substantial link with issues of
intersectionality and bourgeoise feminism84 applied to academia. What
feminists like Sarkar wish to critique through this comparison, is the selective
feminism that many upper-class, upper-caste women part of the feminist
movement tend to advertently or inadvertently engage in. They tend to pre-
suppose free choice for those belonging to those governed by an array of
variables such as situational circumstances and financial backgrounds.
Further, on this assumption they argue that the institutional, ‘due process’
route is always open to them, failing to take into account that there could be
78 Supra note 13.

79 Supra note 17.
80 https://www.facebook.com/RxyaSxrkar.
81 Shiv Vishwanathan, Power of Lists: Men, Women and New Consent Rules, THE ASIAN
AGE, (Apr. 14, 2018), http://www.asianage.com/opinion/oped/140418/power-of-lists-men-
women-new-consent-rules.html.
82 FP Staff, Just Savarna Things: A Twitter Page About Caste And Hypocrisy That Will
Make You Laugh Awkwardly, FIRSTPOST, (Jan. 26, 2016),
https://www.firstpost.com/living/just-savarna-things-a-twitter-page-about-caste-and-
hypocrisy-that-will-make-you-laugh-awkwardly-2601814.html
83 Supra note 82.
a plethora of reasons for taking a more unconventional recourse. This is the

individualistic-deterministic divide.85 The idealist view of individualism that
individuals are free to make choices of their own free will and volition
disregards the causal factors and variables which shape the choices that are
ultimately available.86 In academia particularly due to the nature of the close-
knit circle, it is not wild to envision that within the predatory university
atmosphere, the accused may have ties to those who would finally adjudicate
- people with the power to end careers and social networks of the
complainants with ease. The tendency to protect one’s kind is not amiss here
either. Academics such as Menon focus more on the methodology of the list
than the more glaring indication of our country’s educational institutions as
predatory realms.
But what if due process had once again failed us? Imagine if Liang did have
the clout and pull to manipulate the outcome of the Ambedkar’s University’s
Committee Report. What then would due process have to offer to the
victim?14
In a much larger context, the entire discourse surrounding The List is flawed.
The reason for the same is this hardwired, conditioned need to operate in
binaries. Binaries of state and subject, allegation and rebuttal, of the accuser
and accused. This need is not deliberate but exists because it is often hard to
see beyond one's wall of privilege. It comes down, however to a simple cost-
benefit analysis. To Savarna feminists, the costs are often lack of
respectability and conformity. The benefits, to victims who have been
84 Shivani Channan, ‘The List’ Is A Time’s-Up Moment For Savarna Feminism, THE
PRINT, (Oct. 31, 2017), https://theprint.in/opinion/list-time-moment-savarna-
feminism/14043/ .
85 The Determinism Problem, THE INDIVIDUALIST JOURNAL, (Jul. 7, 2007),
http://individualist-journal.blogspot.in/2007/07/determinism-problem.html.
86 Supra note 86.
compelled to delay channelizing their trauma till they are safe from retaliatory
harm from their accusers, through the very institutional mechanisms feminists
such as Menon ask us to trust, are huge. What The List did, in essence, is
create a safe space for a collective dialogue for women. It prevented further
harm from known predators, maintained anonymity and allowed a discourse
beyond institutional confines.
The more pressing question that begets an answer is this – What caused our
civilized, western frameworks of justice to fail so miserably, that the women
who created The List saw no other option but to go back to an orthodox
tendency to name and shame their assailants in public? Is the faith in the
judiciary so weak and wavering, and rightly so, that these women chose to be
anomalies in a society that so begrudgingly views defiance? The List is a
warning and premonition of a much larger problem at hand.
What actually can ‘due process’ do for us when our last resort is the law, but
the law itself is maligned?
POLITICAL MORAL DECADENCE AND THE CRIMINAL

NEXUS
Dr. P. Mohana Rao*
The Indian political scenario, of late is getting more maligned with the
criminal nexus, there appears a serious moral decadence giving room for
criminals in the Parliament house. The recent happenings in the country has
a very sorry tell-tale issues, as has been let out by AN Vohra Committee
Report1 The ruling government on 20.11.1995 admitted a nexus between
politics, bureaucrats and the mafia, but it expressed its “helplessness” in
breaking it owing to ‘constitutional restrictions’.
National integrity, and the very political institution today are in danger, the
criminal infiltration into politics has affected the whole of the societal fabric,
to a certain variation in degree. The difficult situation is that the system
responsible for the people has been acting as a catalyst against the people, the
pious Parliament, the noble Executive and holy Judiciary are all doubted, it
appears as if the morale in the people is shattered, and their confidence is
being betrayed. All the first principles of state, statecraft, nation, nationhood,
humanity and human values are all forgotten. In vicious, circle, the last
chapter is probably not far off, so at this time the concern for the very first
lessons of life is getting reopened. The concern herein is certainly what
moral? and what value? Of life, of society, of nation, of humanity and of the
whole world.
The object of this paper is to examine the role and content or morality in
political governance and to understand the societal fluctuations vis-à-vis
criminal confurigation of the political system.
MORAL ELEMENTS IN POLITICS AND CRIMINAL LAW
Morality and criminal law are two formidable concepts, stand with certain in
mutual relationship; both are heavily charged with apparently insoluble
problems, even when treated independently of each other. Jeremy Bentham2
and Rudolf Ihiring3 spend their lives studying these ideas achieved only a
minimal success. Lon L Fuller(1964),4 found the literature on law and
morality ’deficient ’; HL Hart(1963),5 when he found many different kinds of
relations between law and morality, he could not avoid discussing various
aspects of these concepts also in terms of ‘justice’. Rusztem Vambery(1907),
felt a holistic treatment of the subject is near to impossibility ad beyond his
capabilities.
The claim for morality in politics has a base in man’s earliest history
of civilization. Henry Maine (19o6), found the origin of legal fibre of the body
politics was in religion, though A S Diamond(1935),found ancient codes free
of religious dominance. Edward Westermarck (1902), stated that as men are
concerned about the conduct of their fellow men towards their gods, so gods
are in many cases concerned about man’s conduct towards one another,
disapproving of vice and pushing the wicked, approving the virtue and
rewarding the good: but Westermarck knew this was not universal. Crime,
vice and sin were indistinguishable in most primitive societies; consequently,
they may be found merged and at the same time, as to be functioning
separately. But in the modern times man has become increasingly accustomed
to the purely secular conceptions of law as made by men for men and to be
judged accordingly in purely human terms. Dennis Lloyds (1964),observed
that the human behaviour is regulated by law, morality and religion; though
the common bond in these three concepts largely remains in mystery. The
unresolved part of the mystery creates the whole lot of confusion in what is
called ‘criminal infusion in politics’.
The thought provoking issues are: Can a political ethics be legally
wrong and morally right, or the converse? Is a just criminal Law’s morality,
is what exactly is the relation between legal and political moral obligation?
How can one reconcile legal and moral responsibilities, and is it a necessity
of social life that they should be ‘in harmony’? What is or should be the role
of morality in preventing the criminal connection in politics and criminal

element in political power structure. Hart proposed that there are so many
different relationships that there exists between law and morality that there is
nothing can be profitably singled out for study in the relation between them.
Law itself is a changing phenomenon, and in terms of relationship
with ethics, it may be said ‘juxtaposed with another changing phenomenon’.
Is the law a mirror of moral beliefs, or is morality a reflection of law? This
question of pries assumes significance. The first alternatives holds only the
moral code is valid, and no law that is disharmony by with it should be
regarded as truly binding. The second alternative, assumes the superiority of
man-made law. As third approach postulates to understand law and morality
in their mutual exclusive autonomy, that is law emancipates within as well is
independent of ethics.
‘Pity and probity’, the characteristics of all civilized society as believed by
Rafaela Garofalo (1914), has been already been disapproved. These
’tenderness’ and ‘honesty’ of the fascist and the Nazis resulted in the torture
and death of millions.
There is a conventional notion that morality is concerned with man’s
internal world, and law with external behaviour, which makes a more flexible
distinction between positive law and morality6 However, there is no catalogue
of responsibilities based on natural law and morality. Legislation decrees the
Aristotelian ‘mala prohibit a’, proscribed by manmade laws; but there is no
official means of listing the ‘mala in se’,(the wrongs, because of the inherent
nature of the act)7.
Lon L Fuller, attempted to qualify his belief in an undefined moral designer
by confining the relationship between law and ethics to the ‘internal morality
of law’.8 Rudolf Stammler (1902),9 identified morality with conscience and
proposed the coexistence and collaboration of law and morality in a way
already known from Kantian philosophy. Rudolf Inhering (1883), viewed law
as a form of psychic coercion by the state, by which he meant that punishing

power of public opinion. Gyula Moore (1903),10
Proposed that the internal world of individual was the enforcing power of
moral norms which indicate right conduct. These are some attempts to
liberate and emancipate, the law norms and the law from the chains of the
theological doctrines. The mutuality between the external and internal
coercion is exhausted whenever the internal coercion validates itself by the
external sanctions.
Certain other thinkers carried the line of thinking that the law and
ethics could be equated because the law expresses the common belief of those
who live in the community, Adolf Markel (1922). Georg Jellinek (1878),
stated the dependence of the (independent) law on the moral code, he
regarded the law as a ‘ethical minimum’ in other words, a guarantee of
preservation of essential axioms.
MORAL PRESCRIPTIONS
George Orwell (1972), ventured the statement that ‘that there is now a wide
spread tendency to argue that one can only defend democracy by totalitarian
methods’. This Orwellian truth, which seems to hold mainly in times when
crime, criminality and criminal connections in political power and modus are
increasingly displayed. It leads to the analogy that ‘morality’ too as perceived
by the ordinary man and as understood in un garnished everyday thinking
might be achieved by some kinds of powerful and threatening intrusion into
man’s thought and
Understanding. Orwell also cautioned that, ‘if you encourage totalitarian
methods, the time may come when they will be used against you instead of
for you’.11
If an accommodating definitional style frame work of morality is to
be worked out in order to see its role and place in the realm of law norms,
then Ludwig Wittgenstein (1995) holds,’ one has to say don’t ask for the
meaning, ask for the use- since the use of morality, in its and analysis is its
meaning’. Gerald Wallace and A D M Walker(1970),agreed that the test of
definition cannot be its correctness or its incorrectness-but must rather be how
well it serves the purpose for which the definition is required.
The definition of morality may be at least nearly approached by
defining the ‘ought’. The essential questions are, who is the resentor? and
who declares what ought to be done? Or in the ambit of law, what is the role
of the ruling social political power and its law play in the resentment/ and
what is it in the ordinary man’s mind that makes him believe the correctness
of the conduct that ‘ought’ to be followed?
This however, n itself would not provide answer to the problem of
morality-and the immorality of all sorts of criminals-and the situation remains
static. Richard Mervyn Hare (1952), following Kantian’ imperatives’ held for
what morality should mean by advancing his concept of ‘uncriminalizability’,
allowing certain place for pluralism and relative nature of the moral issues.
Both the ruling power and the law violators could plead the moral nature of
their own stand. Therefore, another dimension to ‘ought’, it would
realistically restrict and qualify its relativity without depriving it, for its
basically and essentially relative character. Hare offered for understanding of
the function of morality the element of “prescriptivity’.12 And it can be
understood as an action-guiding force only as ‘prescribed’ with the societal
goal by powers more powerful than themselves.
Sociologists with certain approximation not stating what ‘learning
process’ really means in the mirror of prescriptivity call it ‘socialization of
the members of the society. However they see, in general,’ prescribing
morality’ only as ‘transmitting, culture and only in terms of ‘learning values’-
with a noble impassivity in favour of their over simplified trust in human
nature.13 Man, this find himself in a hybrid world in which the imaginary and
the marvellous are weighed down by drab and muddy realities and where he
must face difficulties in making a clear distinction between morality an law.
In the course of being ‘socialized’ he soon finds that, as John H Barnsley
(1972, posed it, morals have’ foundation in reality’ and that morality treated
as any other kind of social Fact. He may discover that, morality does not
represent some eternal acts of superhuman rules. It is changing, and he will
be exposed to terms such as ‘legalizing’, which in fact means that something
immoral is made ‘moral’ by the earthly ruling power’s law. Even the identity
of power may puzzle him: he may see morality as monolithic because in
course of his socialization he does not really know, or at least he may only
vaguely understand the real sources of the moral rules. Socialization to
‘morality’, which is taught by prescriptions, indicates to him that he is
committed to the moral rules.14 morality is viewed as power prescribed action
guiding force, the criminals invade into the corridor of powerhouse, so that
their prescribed law may be seen as its most significant method to secure its
validity and maintenance. To many who so often feel and use the word
’moral and ‘morality’ this makes him an excessive claim. But it may be tested
against the difficulties inherent in the creation of natural morality, a superb
and grandiose fiction, whose comfortable virtue is that does not offer
compelling conclusions. In the centuries old confrontation, the jurists of the
opposing themes with the problem of crime, sometimes do not make a strong
enough attempt to define morality by relating it to the history of ideas that
may be recognized as the chronicle of moral issues. Consequently, they do
not find their way to the unmystic and less abstruse source of moral values.15
The history of crime reveals differing approaches to morality, and
accordingly, to the definition of moral responsibility. No particular definition
of moral responsibility has ever seemed to all members of the society-how
else could be the nexus between the crime and politics emerge? But, who is
responsible for what and shy? The answer to the question can lead to an
understanding of the moral system of the sovereign power. Moral

responsibility will never be perfectly conceptualized or even will be
understood. Its significance is the philosophy of crime lies in the very fact
that it is relative.16
To ponder over the Vohra Committee Report (VCR) , it may be said
that the crime-politics nexus goes beyond politics, it is not a scramble for
power, it for what power can do. The spirit of Jeremy Bentham may not be
surprised for seeing in this largest democracy if the world, the whole of the
distortion. The founder of the ‘utilitarian’s’, hated with his whole heart, the
manifold abuses that were un remedied by law throughout world Bentham
attempted to correct them during his time by prodigious use of his pen but at
every thought he encountered disappointment, he tells us ‘I was a great
reformist, but never suspected that they only wanted to know what was good
in order to embrace it’. He soon found out differently in his hard school of
struggle and experience against the foes of better government. He came to be
especially on the alert for this sort of spacious arguments called ‘fallacies’,
the unsound, illogical contentious which might nevertheless be easily
accepted as sound by the unwary.
In any attempt to conceptualize the criminal politician or the criminal
nexus in politics or the criminalization of politics, it may be said that the
powerful only stimulates the so-called virtue or goodness and pretends
morality, and in fact it does not live up to the demands of the seemingly moral
standards prescribed for the larger society. There obviously exists a double
standard. The fallacy lies in the pride claimed for declaring moral virtues and
ethical demand which should rule in the society, while the author of such
declaration does not it follow them or even flagrantly violates sometimes. As
a result the criminal nexus grows, for the changing facets of crime does not
reject the prescribed ethical standards of the ruling power rather they share
and agree with the as they in turn are convinced that the declared ethical
standards are not to be observed by them in strict sense, either; rather they
find it a more congenial forum to permeate their criminal ventures without
impediments in the society. Certainly, the problem emanates from the ruling
social political power’s prescriptive morality and specifically the powers’
immoral behaviour which it prescribes for others. The corruption germinates
into the society while the honest transparency gets decapitated.
It was Loius Proal(1898), who spoke out most violently and
eloquently against this moral abuse of the ruling power. In the contrast of the
honest and corrupt, he was convinced that the rule of power’ has been differed
by a great number of false maxims’ that made governing the art of ‘lying and
deceiving’, proscribing and despoiling’ all under the cloak of legality.
Humanity has had its governors, he cried out bitterly, slaughters, fanatics,
robbers, false coiners, bankrupts, madmen and as men who have been corrupt
and men who have sown corruption. These power mongers having all the
attributes of criminality imbibed in them are far more dangerous criminals as
pointed out by Proal, what to speak about nexus? Proal attacked the historians
who habitually admire successors without taking pain to enquire into the
corrupt morality of those appear successful. Proal observed that the whole
society suffers from a moral disease and that lead by the dishonesty of the
politicians, so many in the society learn fraud and violence and17 Enrico
Ferri(1967), claimed that respect for the law does not develop as a result of
police activities jails, but would spread among people as a result of examples
set by the persons in high places and by the authorities themselves. The moral
decadence and the rise in the aspiration of the evils to manipulate the political
power of achieving their mean ends have let down the nation. This operation
appeared more rewarding and appropriate. In this pursuit the criminals
adopted the mechanism:1. To get into the close folds of the political bigs; or
2. To assume the political power; or 3. To manage a convincing political
mandate and be a power unto themselves. Conversely, the political leaders,
1. accepted the criminals for manipulating their cause: or 2. Accelerated the

criminal’s charisma for their own use; or 3. To manage a convincing political
mandate and be a power unto themselves. Conversely, the political leaders,
1.accepted the criminals for manipulating their cause; or 2. Accelerated the
criminal’s charisma for their own use; or 3.welcomed the criminals as their
counterpart by virtue of the political verdict. The society grimly accepted the
above symbiosis either knowingly or unknowingly as helpless passive
participants. And now since the whole process appears to boomerang and the
political leaders who acted as catalyst are themselves also, facing the brunt
and the pain, their very existence and the institution is in danger; the debate
for cleansing of the government is evoked. What the political leaders expect
from the intellectual debate is ‘bailing out of the situation’ while finding their
place intact in powerdom. It is a truth that there has been a degeneration,
decadence, distortion of moral values, openness of thought and transparency
has been totally a naught.18 The confounding situation is, there is a bankruptcy
of thoughts, ideas, plans, policies and strategies; many a good thought and
humble beginnings have been either miscarried or sabotaged. The morale in
the public have been butchered and the trust have been betrayed.
Any new thought shall have to meet the challenge of the criminalized
political sword and probably another noble thought will find its decent burial
such is the Situation, or probably the time has not yet reached to spark that
new thought and enlightened idea which will act as magic wand to weed out
the criminals from the political system and restore the honesty and the
principle transparent in politics. We learn and we will be learning at the
appropriate time. The delay in decadence at its finality is probably due to
residuary morality and values of yesteryears which still remains at large. In
this ongoing phase of turmoil and moral crisis men cannot expect fantastic to
happen. All those miseries those created by men, need be redeemed by men
alone, while there is a need for inward thinking which would probably kindle
the new thought, the bright idea that would provide answer to all queries those
raised about morality and the nexus, too.
End Notes
*LL.M., Ph.D. Formerly Assistant Professor of Law, KLEF (Deemed to be University)
Guntur
District, A.P., Lecturer in M.R.V.R.G.R Law College, Vizianagaram, A.P
1.VohraCommittee, a five-member committee headed by a Vohra was set up by the
Government India on 9th July 1993, to take stock of all available information of the nexus
between the politics and the mafia with regard to the Bombay serial Bomb blast conspiracy.
The Report was presented in the Parliament on 1st August 1995, among its findings it
maintained that the government has a lackadaisical approach towards breaking the nexus
which is virtually running a parallel government, pressing the state apparatus into irrelevance.
2.Bentham’s significance in the history of legal thought can be summed in the following
points.
i) He links philosophical premises with practical legal propositions.
ii) He places individualism upon a new materialistic basis.
iii) He relates and subordinates the rights of the self-contained individual to the happiness
of the greatest number of the individual-all with equal claims- living in a community.
iv) He directs the aims of law to practical social purpose instead of abstract propositions.
v) He lays the basis for a new relativist tendency in jurisprudence which later will be called
sociological jurisprudence relates law to definite social purposes and a balance of interest.
vi) He sees a paramount object of law in the guarantee of the security, a function developed,
to the neglect of others, by analytical positivism.
vii) He stresses the need and develops the technique of conscious law making by
codification as against judicial law making or evolution by custom.
3. Law is the sum of the condition of social life in the widest sense of the term as secured by
the power of the state through the means of external Compulsion.
4. But there is no way open to us by which we can compel a man to live the life of reason.
We can only seek to exclude from his life the grosser and more obvious manifestation of
chance and irrationality. We can create the conditions essential for a rational human
existence. These are the necessary, but not the sufficient conditions for the achievement of
that end.
5. H L A Hart has differentiated five meanings of ‘positivism’ as they are bandied about in
contemporary jurisprudence’:(1) the contention that laws are commands of human beings:(2)
the contention that there is no necessary connection between law and morals or law as it is
and ought to be;(3)the contention that the analysis(or study of meaning ) of legal concepts is
(a) worth pursuing and (b) to be distinguished from historical inquiries into the causes or
origins of laws. From sociological inquiries into the relation of law and other social
phenomenon, and from the criticism of appraisal of law in terms of morals, social aims,
‘functions’, or otherwise(4) the contention that a legal system is a ’ closed logical system’ in
which correct legal deacons can be deduced by logical means from predetermined legal rules
without reference to social aims, polices, moral standards(5) the contention that moral
judgments cannot be established or defended, as a states of fact can, by rational arguments,
evidence, or proof (‘non-cognitive in ethics’)
For Ross, (On Law and Justice, p.274) such terms as ‘just’ are entirely devoid of meaning.
They are merely expressions of like or dislike.” To invoke justice is the same thing as banging
on the table, an emotional expression which turns one’s demand into an absolute
postulate….it is impossible to have a rational discussion with a man who mobilizes’ ‘justice’,
because he says nothing can be argued for or against,”
6. When a man violates criminal law norms, he is controlled internally by feelings of revenge
or guilt and externally by threat of punishment as applicable by another man. Statutes and
the judicial orders declare the responsibilities with which law changes human conduct.
7. For instance, ’Remove Shoes’ sign-board inside a Hindu temple to declare that ‘wearing
shoes inside temple is prohibited’. Acts such as this, i.,e mala-in-are usually vaguely defined
or even undefined, but they usually shock other people.
8.Lon L Fuller called it a procedural version of natural law, his concern was not with the
substantive aims of legal rules but with the ways in which a system of rules for governing
human conducts must be constructed and administered.
9. Stammler in the concluding chapter of his Theory of Justice, sates that.,:(1) just law is
the highest universal point in every study of the social life of men.(2) it is only things that
makes it possible to convince by means of an absolutely valid methods, of social existence
as unitary whole.(3)It shows the way to a union with all other Endeavour’s of a fundamental
character which aims likewise at right consciousness.
10. ‘Naturalism’ ( a term coined by E G Moore in his Principal Principal Ethica, 1993) states
that any view that holds that ethical properties can be analyzed into or defined in terms of
natural ones.
11. Yet, one may contend that this threatening force that ‘makes’ man moral could be misused
if it resulted only in outwardly practiced behaviours instead of in attitudinal changes. The
possibility of such a blunder of ‘moral making, may at best be minimized, and totally cannot
be avoided, since no society in the history of man could pride itself with having absolutely
no members with only ‘conformity morality’. This seems to be proved by the attitude and
consequential action of the indestructible criminal element in politics.
12. A Relativist, Dewey (Theory of Moral Life, 1945, his entire work is permeated by the
thought that value statements are prescriptions or recommendations for action based on
alternative convictions, but that it is morally necessary to state grounds or reasons for the
course advised and recommended. These consist of matter-of-fact sentences reporting what
has been and now is, as conditions and of estimates of consequences that would ensure if
certain of them are used as means.
13. Socialization actually means advising another to follow the prescription or if necessary
persuading him to do so with the help of those regards and punishments whose applications
is within the prescribed rights of the given socializing agency. The socializing agencies like
all in the society ought to follow the prescriptions, but these agencies also ought to inculcate
what ought to be done and what ought not to be done, If this socialization process is adequate
and effective, the prescribed moral principles and issues will not simply be followed, but may
be transformed into believes. And if so, they can be further transmitted or prescribed as the
true expression of one’s own principles and as integrated pacts of the morally structured self.
Clearly in the case of politicians affinity to criminals the goal of socialization process appears
to have failed. But in turn if the socialization process fails to develop belief, but succeeds in
achieving the observance of the prescriptions, criminalization may be avoided.
14. It may be a disappointing truth that a philosophy of life or a moral character….in the
historical perspective it is most likely, only a transient quality. Although the rulers a social
political powers-what a human weakness! -like to be regarded as prophets and tend to design
morality for eternity, the mundane world, with another prophet coming to rule it cruelly
changes immorals to morals and righteousness to injustice. However, so long as the power,
socialization takes place and has to place, according to the design of the power, and
prescriptions have to be regarded as moralities confirmable to the power’s demand.
15. A moral stand guides the ruling power and the law makers to design and prescriptive
definition of moral responsibilities.
16. Strawson P.F. (Social Morality and Individual Ideal’, 1961), suggests that ‘the region of
ethical…..is a region of diverse, certainly incompatible and possibly practically conflicting
ideal images or pictures of human life….’Ethics is thus the sphere of ideal forms of life set
by individuals for themselves. It is further implicit in his suggestion that these ideal images
of man’s life-generally called values-conflict, and that’ the multiplicity of conflicting pictures
of is itself the essential elements of one’s picture of man.’ By contrast, the sphere of morality
denotes ‘rules or principles governing human behavior which apply universally with in a
community or class’. A ‘minimal conception morality’ limits itself to those rules which are’
a condition of the existence of society’. W Friedman, Legal Theory (1967) p.2
17. Indifference towards socialization results to a confusion and understanding of moral
prescription and lack of any constructive ambition. A ‘rolelessness’ may develop, meaning
here the role that is expected by the sovereign moral command. But because of these in
appropriate socialization and these faulty aspirations. The criminal cannot determine which
rights and duties are his, and he transgresses, interferes, confuses and confounds the whole
system for he cannot judge the morality of the moral prescriptions. He cannot see the
justification of the functional role, so he cannot identify the constructive role and he would
otherwise play in service of the national goals or the political system.
18. What irritated most to Bentham was the fact that, all the while, were the corrupt
obstructionist of progress would pose before the world as reasonable and well-intentioned
men and he resolved to expose it thoroughly. Bentham searched for the political fallacies
because he believed profoundly, first the power of reason in human affairs, and secondly the
utilitarianism, Bentham’s understanding between logic and morals, was perfectly clear, he
observed that there was a high correlation between political wickedness and bad logic: the
slipshod thinker was probably upto no good morally, and the rascal in politics was almost
sure to mask himself by resorting to logical trickery. It was this sensitive observation which
lent force and vigour to his crusading exposure of political fallacies. Harold A Larrsbee,
Bentham’s Handbook of Political Fallacies
ANALYSIS OF THE TRANSGENDER PERSONS

(PROTECTION OF RIGHTS) BILL, 2016
Ameya Nath* & Raj Vardhan Singh**
Meaning of the term LGBTQ
The term LGBTQ stands as a symbol for Lesbian, Gay, Bisexual,
Transgender and Queer. A lot of these terms are often used indistinguishably
but they are not the same. They very in the way that a few of them stand for
the gender identity of a person, while the rest of them refer to the sexual
orientation.
Lesbian is the term that stands for women whose sexual, physical and
emotional attraction is primarily directed towards women. 1
Gay is the term that stands for men whose sexual, physical and emotional
attraction is primarily directed towards men. 2
Bisexual is the term that stands for people who have sexual, physical and
emotional attractions directed towards both men and women.3
Transgender stands for a person whose gender expression or identity varies
from the traditional expectations for her or his biological gender. This term is
used to account for the various different but often related groups who use
various terms to identify themselves. They can be gay, straight or bisexual.4
Queer is a parasol term that refers to people who do not adhere to the
conventional gender binary norms.5
Problems faced by the LGBTQ Community
The first and the most primary issue is that the LGBTQ people are not easily
accepted by the society that they live will. They are looked down upon by the
*Student, Dr. Ram Manohar Lohia National Law University, Lucknow

**Student, Dr. Ram Manohar Lohia National Law University, Lucknow
1
Joan Buccigrossi and Delyte Frost, Sexual Orientation, wetWare, Inc. Rochester, NY, 25-
26 (2003).
2
Ibid.
3
Ibid.
4
Ibid.
5
Ibid
society for not fitting in the already stitched and accepted gender binaries.
They have a long history of being discriminated against in the fields of
employment, at workplace, healthcare, schools/colleges and various other.
These innumerable forms of discrimination have very serious and major
impacts on the lives of these people and causes homelessness, depression and
poverty.
The World Health Organisation, according to them the term ‘transgender’ is
a term that covers a wide range of people whose perceived gender does not
synchronise with the gender that was assigned to them at birth. For example,
a woman may identify herself with the opposite gender, as a man. The data
of the 2011 Census reflects that the number of persons identifying themselves
as something outside the gender binary are 4,87,803 that is 0.04% of the total
population. 6
In the year 2013, an expert Committee was set up by the government to gauge
the problems related to the transgender community. It was stated by the
committee that the transgender community has to deal with the trauma of
discrimination and social stigma which adversely affected their everyday life.
The World Values Survey (WVS), one of the global survey projects has
attempted since the year 1980 to regularly poll nationally representative
samples in almost 100 countries solely based on the values and beliefs of the
people. The sample size, however, is small—in 2014, the sample of India
comprised of only 1500 people, but it was demographically representative.
Between the years 1990 and 2014, the percentage of Indians in the WVS
survey who believed that homosexuality can never be accepted or be
justifiable went from 89% to a low of 24%. 7
6
Report of the Expert Committee on the Issues relating to Transgender Persons, Ministry
of Social Justice and Empowerment, (July 12, 2019, 3:29 pm),
http://socialjustice.nic.in/writereaddata/UploadFile/Binder2.pdf.
7
Rukhmini S., Homosexuality in India: What data shows, (July 9, 2019, 10:54 am),
https://www.livemint.com/Politics/nLQiPpl5UICajLDXETU3EO/Homosexuality-in-India-
What-data-shows.html.
A Human Rights Campaign’s report named ‘Growing up LGBT in

America’, is a very pioneering survey of about more than 10,000 LGBT-
identified adolescents between the age group 13 and 17. It provides for a crisp
picture of the problems and discrimination the community faces and its effect
and impact. Every 4 in 10 LGBTQ youth say that the society they live in is
not very accepting towards the LGBTQ community.8 The LGBTQ youth is
more likely, as compared to their peers, to say that they have been physically
abused, shoved at and kicked. 26% LGBT youth’s problem is the non-
accepting behaviour of their family and friends. 92% of these LGBTQ youth
express that they hear negative messages about their community.
Protection through Judicial Pronouncements
In the landmark case of Naz Foundation v. Govt. of NCT Delhi9 ,the apex
court came with the decision that held that treating
consensual homosexual sex between adults as a crime is a violation
of fundamental rights protected by the Indian Constitution which resulted in
the decriminalisation of the homosexual acts involving consensual sex
throughout the country which was later overturned by the in the case of
Suresh Kumar Koushal v. Naz Foundation10 and the supreme court reinstated
section 377 of the Indian Penal Code . This case was overruled in the
landmark judgement that came in the year 2018 in the case of Navtej Singh
Jauhar v. Union of India11 , in which the Supreme Court held that some parts
of section 377 is violative of the Constitution, Criminalisation of carnal
intercourse is arbitrary and unconstitutional and also that the LGBTQ
8
Anonymous, Growing up LGBT in America, (July 10, 2019. 6:32 am),
https://www.hrc.org/youth-report/view-and-share-statistics.
9
Naz Foundation v. Govt. of NCT of Delhi, (2009) 160 Delhi Law Times 277 (India).
10
Suresh Kumar Koushal & Anr vs Naz Foundation & Ors, (2013) Civil Appeal no. 10972
of 2013.
11
Navtej Singh Johar & Ors. V Union Of India Thr. Secretary Ministry Of Law And
Justice, (2018) Writ Petition (Criminal) No. 76 Of 2016.
community is entitled to equal citizenship and protection under the law

without any kind of discrimination.
The Transgender Persons (Protection of Rights) Bill, 2016
The Transgender Persons (Protection of Rights) Bill, 2016, that sought to
provide for a proper and uniform definition for the term ‘transgender’ and
prohibit all forms of discrimination against them, was introduced in Lok
Sabha in 2016.
It was aimed towards protecting the interests of the transgender people and to
provide them nationwide recognition and acceptance. The Bill was referred
to the Standing Committee of Social Justice and Empowerment. The Standing
Committee made certain amendments and it was passed in the Lok Sabha on
December 17, 2018.
Features
• Definition
The definition of the term ‘Transgender’ is given in the 2016 Bill as:
”One who is partly female or male; or a combination of female and male; or
neither female nor male. In addition, the person’s gender must not match the
gender assigned at birth, and includes trans-men, trans-women, persons with
intersex variations and gender-queers.”
• Certificate of Identity
The transgender persons are required to obtain a certificate of identity by the
District Magistrate as a recognition proof in order to invoke the rights that are
made available to them under the Bill. The District Magistrate will grant the
Bill following the recommendations of the Screening Committee. The
Screening Committee consists of a Medical officer, a
psychiatrist/psychologist, a government official, a District Welfare Officer
and a transgender person. (YEH TG HAI YEH KAUN BATAYEGA?)
• Prohibition of Discrimination
The Bill seeks to prohibit discrimination against a transgender person in
relation to:
1. Education
2. Employment
3. Healthcare
4. Access to public goods and facilities.
5. Any form or denial related to right to movement
6. Right to rent or own property
7. Opportunity to hold public or private office
8. Access to a government or private establishment which has custody
of a transgender person.
All private and public establishments are also disallowed to discriminate
against a transgender person in matters of employment which includes
recruitment and promotion. In case of an establishment with more than 100
persons, there will a person designated to deal with the complaints related to
the Bill.
• Benefits related to Health, Employment and Education
1. The central as well as the state governments are required to provide
for welfare programmes and schemes to support and facilitate the
livelihoods of the transgender people. Self-employment and
vocational trainings are a part of it.
2. Governments at both the levels shall take steps to provide healthcare

facilities to transgender persons including: (i) separate HIV
surveillance centres; (ii) sex reassignment surgery and hormonal
therapy counselling; (iii) review of medical curriculum; and (iv) a
comprehensive insurance scheme.
3. Educational institutions shall provide inclusive education and

opportunities for sports, recreation and leisure activities to
transgender persons.
• National Council for Transgender persons
1. A National Council for Transgender (NCT) persons is to be set up in
order to advise the central government on legislation and policies that
related to the transgender people, and to monitor the same.
2. The NCT comprises of the representatives from (i) ministry of Social
Justice and Empowerment, Minority Affairs, Health ; (ii) NITI
Aayog; (iii) National Human Rights Commission and National
Commission for Women; (iv) state governments; (v) members who
are nominated from the transgender community; and (vi) experts from
NGOs.
• Offences and Penalties
The Bill mentions the following offences: (i) compelling or enticing a
transgender person to indulge in the act of begging or other similar forms of
forced or bonded labour, excluding compulsory government service for
public purposes; (ii) denial or causing obstruction in the right of passage to
the use of a public place; (iii) forced leaving of household, village or other
place of residence; and (iv) harms or injures or endangers the life, safety,
health, or well-being, either physically, emotionally, economically, verbally
or sexually.
These offences will attract imprisonment between six months and two years,
and a fine.
The NALSA Judgment
In the year 2014, the Apex court acknowledged the right to ‘self-
identification’ of a transgender person, either as a female, male or any other.
The court also directed both the central as well as the state governments to
furnish legal recognition to the people belonging to the transgender

community, and provide them with suitable social welfare schemes. 12
The 2018 amendments
The 2018 Bill eliminated the definition of the term ‘transgender’ mentioned
under the 2016 Bill. It now states: "transgender person" means a person
whose gender does not match with the gender assigned to that person at birth
and includes trans-man or trans-woman (whether or not such person has
undergone Sex Reassignment Surgery or hormone therapy or laser therapy or
such other therapy), person with intersex variations, genderqueer and person
having such socio-cultural identities as kinner, hijra, aravani and jogta.
It also define a person with intersex variation as person who at birth shows
variations in his or her primary sexual characteristics, external genitalia,
chromosomes, or hormones from normative standard of male or female body.
The earlier requirement for an establishment having more than 100 persons
to have a Complaint officer to deal with the issues and problems related to
the transgender people was also removed. Now every establishment,
irrespective of the number of persons is supposed to have a person designated
as a Complaint Officers to manage the transgender issues.
Earlier, the government was to cover the medical expenses by the insurance
scheme for the transgender persons. However, the amendment extended that
coverage to insurance schemes for hormonal therapy, laser therapy, sex re-
assignment surgery and other health related issues.
The National Council for Transgender Person will now also redress the
grievances of the transgender persons, along with making policies and
legislations for them.
12
National Legal Services Authority vs. Union of India, (2014) 5 SCC 438.
Inadequacy of the Legislation

• Vague Definition
The day, on which the Bill was passed in the Lok Sabha in December 2018,
was referred to as the Black Day by the LGBT activists as they believed that
it did more harm than help. They have accentuated numerous shortcomings
and blemishes inconsistent with the international norms and standards. Even
after the amendment made in 2018, the legislation proves to be inadequate in
a lot of areas.
The requirement under the Bill for being identified as a transgender person is
that they must be
1. neither wholly male nor female; or
2. A combination of male or female; or
3. Neither male nor female.
Now the Bill is ambiguous in the sense that it does not clearly specify the
exact meaning of the terms ‘male’ and ‘female’. It does mention whether
these terms are to be discerned in a biological sense including the
chromosomes and the human anatomy, or in a psychological sense, as to how
that particular person perceives his/her gender to be.
Many international organisations like the World Health Organisation, the
American Psychological Association and World Professional Association for
Transgender Health, they all define the term ‘transgender’ as a person whose
gender identity is inconsistent with the sex he/she assigned at birth. 13
Although, the new definition under the 2018 Bill is better than the one in
2016, but there still is a lot of ambiguity and vagueness in it.
• Violation of the Right of Self-Defined Gender Identity
The Apex court in the year 2014 held that the fundamental right to live with
dignity and personal liberty under Article 21 of the Indian Constitution also
13
Transgender persons, World Health Organisation, (July 2, 2019, 10;23 am),
http://www.who.int/hiv/topics/transgender/en/.
includes within its ambit the right of self-determination of one’s own gender.
Therefore, the transgender persons have the right to determine their own
gender, be it male, female or any other gender outside the gender binary. This
constitutes a part of their right to live with dignity.14
The provision of the Bill, however, restricts this right of self-determination
of gender. On one hand, the Section 4(2) of the Bill speaks about self-
perceived gender identity while on the other hand it makes it subject to the
decision of the District Screening Committee, on whose recommendations
the District Magistrate will issue the certificate of identity to be recognised as
a transgender person. It is only when this certificate is issues can the rights
under the Bill be invoked. Therefore, the certificate of identity has been made
a pre-requisite to invoke the rights provided under the Bill. And if the person
is denied the issuance of certificate, then there is no mechanism under the Bill
for a review or appeal against the decision.
• Tiresome Certification Process

The need for the certification process seems unreasonable because the rights
that the Bills seeks to provide for are primarily positive. For example, the
right to not get discrimination against at workplace, to not be banished from
the property. All of these are highly basic and primary rights that do not
require such a tiresome process of certification before being granted. The
positive rights of the Bill are referred to under section 9, section 15 and
section 16 of the Bill. It also provides for the establishment of Vocational
Training Institutes and provision of important and indispensable medical
facilities. These rights are not of the nature that can be embezzled with.
Therefore, the certification process seems unreasonable and arbitrary and
violate the right of the transgender persons to self-identify themselves.
14
National Legal Services Authority vs. Union of India, (2014) 5 SCC 438.
• Lack of Affirmative Action

The transgender community in India have always been at the receiving end
of the discrimination in a large number of areas, for example, household,
employment, education and healthcare. The Bill seeks to prohibit this
discrimination, however, it does not provide for an exact picture as to when
and what will amount to discrimination. Secondly, the social exclusion of the
transgender community have led to them opting for begging, become sex
workers and dancing at various events. The Apex Court in the NALSA
judgment in 2014 declared this community as a socially and economically
backward class, and to be made eligible for reservation in educational
institutions and public appointments. However, the Bill remains silent on
these major issues and lacks affirmative action.
• Inadequate protection
The transgender community faces innumerable offenses against them like
Rape, Sexual Assault, and Harassment etc., however, the Bill fails to define
any of these offenses. It does not even define rape as an offence. All they have
provide for is “Physical Abuse” and “Sexual Abuse”, the punishment for
which ranges from six months to 2 years. It is quite evident how the
punishment is highly disproportionate with the offenses and treats them as
pretty issues.
In the year, 2013, amendments were made to the Indian Penal Code in order
to extend the definition of Rape to include a huge range of offenses within
the ambit like Voyeurism, Stalking, Disrobing and Sexual Harassment.
However, the Bill does not even recognise them to provide special protection
to the transgender persons. Under the IPC, sexual offences related to women
attract a higher penalty (up to life imprisonment) than that specified for sexual
abuse under the Bill.15 The Bill also fails to provide for adequate penalties for
15
The Indian Penal Code, 1860, No. 45, Act of Parliament, 1860.
the discrimination and violence that the transgender persons face by the
officials present at various workplaces such as police stations, jails, various
places of custody etc.
• Begging as an Offence
The Bills fails to provide for the reservation to the transgender community as
they are to be treated as socially and economically backward class. Now, due
to lack of reservation to protect their interests at public appointments and
educational institutions, these transgender persons are often compelled by
their precarious conditions to beg on streets and accept money in exchange of
blessings. However, the Bill provides for a very transphobic view as it
mentions the offence of ‘enticing’ a transgender person to beg. Now this
provision can prove to have a really harmful effect on the community as they
sometimes resort to begging due to their poor conditions, lack of job and
poverty. Section 9(4) mentions that “The appropriate Government shall take
steps for the rescue, protection, and rehabilitation of transgender persons to
address the needs of such person”, but does not at all state how the
government agencies will decide who needs rescue, protection, and
rehabilitation, and the same is open to misuse for arresting and detaining
transgender persons, as was commonly being done to homeless persons under
the Beggary laws.16
Further, the Bill proposes very transphobic provisions such as the offence of
“enticing” transgender persons to beg, which has the potential to criminalise
the tradition of many trans communities which include the practice of seeking
alms in return for blessings, and the same should further be looked in light of
the fact that begging per se has been decriminalised in the country*. Also, the
Bill in numerous places provides for dangerously vague provisions that can
16
Aakar Patel, India’s Transgender Persons Bill undermines the rights of the individuals it
seeks to protect, (July 8. 2018, 5:23 pm), https://scroll.in/article/906757/indias-transgender-
persons-Bill-undermines-the-rights-of-the-individuals-it-seeks-to-protect.
be misused by persons in authority such as section 9(4), which merely states

that “The appropriate Government shall take steps for the rescue, protection,
and rehabilitation of transgender persons to address the needs of such
person,” but does not at all state how the government agencies will decide
who needs rescue, protection, and rehabilitation, and the same is open to
misuse for arresting and detaining transpersons, as was commonly being done
to homeless persons under the Beggary laws.
Conclusion
Thus, we see that how the term ‘LGBTQ’ was defined, what all problems did
the LGBTQ community faced. We have analysed the Transgender Persons
(Protection of Rights) bill 2016 as well as the amendments that came in the
year 2018, we have tried our best to throw light upon the issues that have been
dealt in a vague and arbitrary manner and also the suggestive measures. We
would like to conclude by stating the words of Justice Deepak Misra as "I am
what I am, so take me as I am".
WHY ICJ VERDICT VINDICATES INDIA’S CONTENTION

IN KULBHUSAN JADHAV’S CASE
Anukriti* & Priyanka Mangaraj**
In the year 1758, Emmerich Vattel, a Swiss jurist, gave the origins or the
fundamental principle of diplomatic relations upon one of his sayings,
“Whoever ill treats a citizen indirectly ill treats the State, which must protect
that citizen”. Diplomatic protection is considered to be an instrument of
international law as it protects those individuals whose personal or property
rights have been violated in a foreign nation or territory. It acts as a safety
guard for the nationals of a State to be used in a foreign land. The main
objective is an injury to any national would take as an injury to the state. It
would be an obligation over the State to provide diplomatic protection until
and unless when a significant damage or loss has been suffered by the
national. It is to be noted that, to gain this protection the national must have
to prove a genuine link between him and the State. In the Nottebohm case1, it
was held by the International Court of Justice (ICJ) that the national shall
prove a “genuine connection of link” between him and the State for the
exercise of diplomatic protection to take place.
The International Court of Justice acts as a world court and is the principal
legal organ of the United Nations. The court’s jurisdiction is twofold. It
decides in accordance with the International law, disputes of a legal nature
that are submitted to it by states. It also gives advisory opinions on legal
questions at the request of the organs of the United Nations, specialized
agencies or one related organization authorized to make such a request. In the
exercise of its jurisdiction in contentious cases, the ICJ settles disputes of a
legal nature that are submitted to it by states in accordance with International
*Student, Galgotias University

**Student, Galgotias University
1
Nottebohm case (second phase) (Liechtenstein v. Guatamala), Judgment, I.C.J. Reports
1955, p. 4
law. An International legal dispute can be defined as a disagreement on a

question of law or fact as conflict or a clash of legal views or interest. Only
states may apply to or appear before the ICJ. International organization, other
authorities are not entitled to institute proceedings before the International
Court of Justice.2 Article 35 of the statute defines the conditions under which
the states may access the court. According to Article 35 of the statute, the
court is open to states parties to the statute, and is intended to regulate access
to the court by states which are not parties to the statute.
Consular protection is when a national’s rights have been violated in the host
country and the native state on behalf of the national is defending their rights.
Recently since 2016 consular protection for national has been a burning topic
for India. On March 2016, Kulbhusan Jadhav has been arrested by Pakistan
officials from Balochistan province in the offence of spying to collect
political or military information from Pakistan on behalf of Indian
government. There were no satisfactory evidences were submitted by
Pakistan government to prove their contentions. Though a video was released
by Pakistan government in which Jadhav has been admitting that he did came
to Balochistan for the reason of espionage on Pakistan government, but it
cannot be admitted as evidence as the circumstances in which the video was
recorded was unknown. India’s defence was based upon two major
objections. Firstly, it was Pakistan’s breach of Vienna convention on consular
access that is according to Article 36 of Vienna Convention, when a nation
arrests or detains a foreign national then the national has the right to get
consular protection and the State which has detained the foreign national shall
inform about the right to access the consular protection. This was firstly
breached by Pakistan government as Jadhav was kept far away from
accessing his consular protection which was his right. Secondly was failed
2
https://www.icj-cij.org/en/jurisdiction
process of resolution and faulty due process of Pakistan against Jadhav. India
also claimed that when Jadhav’s wife and mother went to visit him, an
unfavourable situation was created for them nd no sense of credibility was
shown towards them by the officials of Pakistan.3
There were several attempts by India to get Jadhav consular protection but
Pakistan government produced many new evidences against Jadhav to prove
that India was indeed spying on Pakistan officials. Now, we shall get into the
details of the case and will discuss upon how the final verdict of International
Court of Justice on Kulbhusan Jadhav made a prosperous win for India’s
diplomatic relations worldwide.
On March 3rd, 2016 Former Indian Naval officer Kulbhushan Jadhav was
arrested reportedly from Baluchistan after he entered from Iran, where he was
carrying out his business after being retired from the navy. Few days later
Pakistan released a video of Kulbhushan purportedly confessing of being an
Indian spy. According to the Pakistani Law, Jadhav was found guilty of
espionage under section 59 of Pakistan Army Act 1952 and section 3 of
official secrets Act of 1923. On March 26th, 2016 the Indian government
claimed there was no proof that Jadhav who owns a cargo business in Iran
was arrested in Baluchistan. Then on March 29th same year India requested
for consular access to Jadhav from Pakistan. Over the next one year India
made 16 such requests that were denied by Pakistan. Next year on April 10th,
2017 A Pakistani Army court sentenced Kulbhushan Jadhav to death for his
involvement in espionage and sabotage of activities against Pakistan. India
warned Islamabad that it is a case of premeditated murder. External Affairs
minister Sushma Swaraj asserted in both the houses of the Parliament that
India will go out of way to ensure justice to Jadhav who is an innocent
kidnapped Indian. India also demanded from Pakistan a certified copy of the
3
https://economictimes.indiatimes.com/news/politics-and-nation/kulbhushan-jadhav-case-
what-you-need-to-know-before-the-verdict/articleshow/70256759.cms
charge sheet as well as the judgement on the death sentence of Kulbhushan

Jadhav and sought again for consular access to him. India officially seeks
from Pakistan details of the trial proceedings against Kulbhushan Jadhav as
well as the appeal process in the case.4 External Affairs minister Sushma
Swaraj then writes to the Pakistan advisor Sartaz Aziz requesting visa for
Jadhav’s family. After failed attempts India approached the ICJ at Hague
against Pakistan military court’s decision. On May 9th, 2017 ICJ stays
Jadhav’s execution. Both India and Pakistan remained at the crossroads as
New Delhi demanded the immediate suspension of Jadhav’s death sentence.
However, a 10 member bench of the International court of Justice on May
18th, 2017 restrained Pakistan from executing Jadhav till adjudication of
case. Pakistan however said that the ruling by the ICJ did not change the status
of the case even as the opposition party leaders attacked the government’s
handling of the matter at The Hague. Iranian government supported India’s
argument by saying India is correct and in fact denounced Pakistan for the
kidnapping soon after it happened. 10 days after the ICJ’s order, Pakistan
claimed to have fresh evidence against Indian National Kulbhushan Jadhav.
On June 22nd, 2017 the Pakistani military announced that Kulbhushan Jadhav
had filed a mercy petition with army chief general. Jadhav filed the mercy
plea with a confessional statement that he was involved in subversive
activities in Baluchistan. Pakistan yet again rejected India’s request for
consular access to Kulbhushan Jadhav when both the countries were
scheduled to exchange lists of prisoners under a 2008 agreement. On July
13th, 2017 Pakistan said it was studying a visa application of the mother of
Kulbhushan Jadhav to meet him. India had requested Pakistan to allow
Avantika Jadhav to meet her son. But the ministry of External Affairs said
India had not got any information on change in visa and consular position in
4
https://www.icj.org/wp-content/uploads/2019/02/Pakistan-Jadhav-case-QA-Advocacy-
Analysis-brief-2019-ENG.pdf
the Jadhav case. In October 2017 Pakistan started the process to file its plea
in response to India’s representation submitted in the ICJ against the death
sentence of Jadhav. The ICJ had asked Pakistan to submit its written response
or memorial by December 13th before the court could start further
proceeding. A small breakthrough came on November 10th, 2017 when
Pakistan offered India a meeting of Jadhav with his wife on humanitarian
grounds. Pakistan then said that it will allow the wife and mother of alleged
Kulbhushan Jadhav to meet him on humanitarian grounds. On December 25th
it allowed them to be accompanied by an Indian embassy official as requested
by New Delhi. In between Pakistan filed a counter memorial before the ICJ
against India’s plea to prevent execution of Jadhav. Then on December 25th,
2017, wife and mother of Kulbhushan Jadhav met him for 40 minutes of the
Foreign office in Islamabad. While Deputy Indian High commissioner and
Pakistani officials listened in on the conversation outside. April 17th, 2018
India filed its second round of pleadings to the ICJ at The Hague. July 17th,
2018 Pakistan submitted a 400- page reply in the ICJ as a rejoinder to India’s
last reply on April 17th. November 20th, 2018 then external affairs minister
Sushma Swaraj said that India had sought diplomatic access to Kulbhushan
Jadhav. February 18th, 2019 a four day long public hearing was held in
Kulbhushan Jadhav’s case at the ICJ. Mr Harish Salve represented India and
Kulbhushan at the hearing. In the hearing India called Jadhav sentencing a
breach of Vienna convention while Pakistan insisted that Jadhav was an
Indian spy.5
In major victory for India, the International court of Justice has ruled that
Pakistan must review the death sentence for Indian National Kulbhushan
Jadhav. The world court bench led by the President of the court Judge
Abdulqawi Ahmed Yusuf ordered an “effective review” and reconsideration
5
https://www.thehindu.com/opinion/editorial/a-reprieve-on-the-kulbhushan-jadhav-
case/article28563907.ece
of the conviction and sentence of Kulbhushan Jadhav. The bench also ruled
by 15 votes to 1 that Pakistan had violated India’s rights to consular visits
after Jadhav’s arrest was sentenced to death by a Pakistani military court on
charges of espionage and terrorism after a closed trial back in April 2017. His
execution was finally stayed by the International Court of Justice in May 2017
on India’s request. The verdict in the high profile case came nearly five
months after the 15 members of the bench of the ICJ reserved its decision on
February 21st, 2019 after hearing oral submission made both by India and
Pakistan. The proceeding of the case took two years and two months to
complete. On July 17th,2019 President of the court Judge Abdulqawi Yusuf
read out the verdict at a public sitting at the peace palace in the Hague
Netherlands. The Hague based court ruled that Pakistan must review its order
of death sentence of Kulbhushan Jadhav and also provide him consular
access. While pronouncing its verdict, the ICJ said “The court finds that
Pakistan deprived India of the right to communicate with and have access to
Kulbhushan Jadhav to visit him in detention and to arrange for his legal
representation and thereby breached obligations incumbent upon it under
Vienna Convention on Consular Relation.6
Defence Minister Rajnath Singh welcomes the verdict pronounced by the ICJ.
He called it a major diplomatic victory for the country.7Former external
affairs minister Sushma Swaraj also termed it a huge victory for India and she
thanked Prime Minister Narendra Modi for taking the case to the ICJ and
senior Advocate Harish Salve for arguing the matter very effectively and
successfully. She also expressed hope that the verdict will provide the much
needed solace to the family members of Kulbhushan Jadhav.8 The ICJ held a
6
https://www.studyiq.com/blog/kulbhushan-jadhav-case-verdict-free-pdf-download/
7
https://www.indiatoday.in/india/story/icj-stays-death-sentence-of-kulbhushan-jadhav-
rajnath-singh-sushma-swaraj-chidambaram-hail-verdict-1570552-2019-07-17
8
https://indianexpress.com/article/india/icj-verdict-on-kulbhushan-jadhav-sushma-swaraj-
calls-it-great-victory-for-india-thanks-harish-salve/
four-day public hearing in Kulbhushan Jadhav case in February this year and
during the hearing both India and Pakistan submitted their detail pleas and
responses. India based its case on two broad issues, breach of Vienna
convention on consular access and the process of resolution. While Pakistan
claimed in its submission before the world code that its security forces
arrested Jadhav from the rest of Baluchistan province on the March 3rd, 2016
after he reportedly entered the country from Iran but India maintains that
Jadhav was kidnapped from Iran where he had business interest after retiring
from the navy.
The ICJ began a four- day public hearing in the Kulbhushan Jadhav case on
February 18th. Indian council at the ICJ Harish Salve built the case on two
broad issues. He said Pakistan breached the Vienna convention on consular
access and the process of resolution. He told the 15 judge court that Pakistan
story about Kulbhushan Jadhav is solely based on rhetoric highlighting that
Pakistan filed the FIR almost a month after the arrest of Mr Jadhav. Salve
attacked Jadhav’s trial by a secret military court in Pakistan which he said
was opaque to the outside world. Further Pakistan provided no credible
evidence to show Jadhav’s involvement in any act of terrorism. Salve pointed
out that as per International standards military courts must be independent
impartial and respect minimum guarantee of fairness. But Pakistani military
courts are not independent and proceedings before them fall far short of
national and international fail trial standards. Mr Salve further said that the
according to Article 36 of the Vienna Convention, a country must be informed
about the detention of its citizens but Pakistan did not informing India about
Kulbhushan Jadhav’s arrest without consular access India has no information
on what happened to Jadhav in Pakistan. Since his arrest India has sent 13
reminders to Pakistan for consular access to Jadhav but Islamabad is yet to
exceed. Pakistan in its arguments called India’s claims to release Jadhav
outlandish. Pakistan’s counsellor left India did not answer key questions
about Kulbhushan Jadhav. Pakistan claims its security forces arrested Jadhav
from the rest of Baluchistan province on March 3rd, 2016 after he reportedly
entered from Iran. But India maintains Jadhav was kidnapped from Iran
where he had business interests after retiring from the Navy. Pakistan has
made the argument that he does not deserve to have consular access and
Article 36 does not apply to a man who is convicted or is believed to be a spy
who has not been able to prove and even there it’s questionable whether a spy
should be denied consular access in any case. Kulbhushan Jadhav was
sentenced to death by a Pakistani military court for espionage and terrorism
in April 2017. In May, India moved the International Court of Justice against
a farcical trial by the military court of Pakistan. On May 18th, 2017 a ten
member bench of the ICJ set up after the Second World War to resolve
International disputes restrain Pakistan from executing Kulbhushan Jadhav
till adjudication of the case. Pakistan have for more than 2 years stood their
ground with regard to the Kulbhushan Jadhav case in the ICJ. Another case
of Sarabjit Singh, is also to be considered who was murdered by his jail
inmates in 2013, he was made a prisoner for espionage by Pakistan
government with no satisfactory evidences against him for 22 years long.
Before his death he was accused by Pakistan government for spying and
killing 14 Pakistani citizens in the bomb blasts held in Punjab province of
Pakistan in 1990.9
However, with the glorious victory of India on 17th July,2019 at the Peace
Palace of Hague Netherlands gave its judgement that Pakistan shall review
its order of death sentence to Kulbhusan Jadhav and shall provide him his
right to access consular protection and shall be with proper communication
grounds with the Indian government without any interventions or production
of false and vague allegations.
9
https://economictimes.indiatimes.com/news/politics-and-nation/sarabjit-murder-case-pak-
jail-superintendent-record-statement/articleshow/62038731.cms?from=mdr
RAPE AS A WAR CRIME IN INTERNATIONAL LAW: A

CRITICAL ASSESSMENT
Niharika Bodla*
INTRODUCTION:
Lieber code has recognized that rape is a crime and prohibited it1. But the
Geneva convention didn’t recognize or did not mention rape as a type of
sexual offense in article 3 which is the regular article. Prisoners of war are to
be treated with respect and dignity as of normal people as it is mentioned in
the third Geneva convention2. It also says that they should be treated with
dignity and honor in any circumstance. Treating war prisoners with dignity,
respect is also said in additional protocols I and II which is a fundamental
dignity under this
à Article 75 of Additional Protocol I – It forbids any kind of torture, lack of
dignity, Forcing into prostitution, assault and indecent behavior on the war
prisoners because it is considered that though they are war prisoners they are
also human beings.
à Article 4 of Additional Protocol II – It included the word rape in this
à Additional Protocol I and Geneva Convention – These are even prohibiting
prostitution, and assault to safeguard women from rape in war’s and as war
prisoners.
à Special Court for Sierra Leone and Statutes of the International Criminal
Tribunal for Rwanda – It says that any kind of sexual violence, lack of dignity
and assault is prohibited
à Statute of the International Criminal Court – Lack of dignity, forcing
someone to get pregnant or violence in relation to someone’s body is
considered to be a grave crime and breaching Geneva convention.
*Student, Symbiosis Law School, Hyderabad

1
Lieber Code, Article 44.
2
Geneva Conventions, common Article 3. , Third Geneva Convention, Article 14.
àArticle 3 of the Geneva Convention – rape, slavery, forced pregnancy,

sterilizing is completely prohibited
àStatute of the International Criminal Court – Rape is a crime against
humanity
àFor now almost all the countries consider rape as a crime and rape as a war
crime is also prohibited because women are human beings and not sex slaves
and they are to be treated with utmost dignity and respect. Forced prostitution,
sexual violence, assault, forced pregnancy are completely banned in the
international word as it is considered as a grave crime and punishable under
many domestic and international laws.
à Takashi Sakai case – This is a Chinese case, in the year 1946 – It
recognized rape as a crime3.
à John Schultz case in 1952, It is the US Case – It said that rape is something
which is to be accepted as a crime and should be punished severely4.
àRape has been considered one of the grave crime in the history of
international law.
àSexual crimes which happened in Rwanda, Sierra Leone, Uganda,
Yugoslavia, European Parliament, Council of Europe and Gulf Corporation
Council were considered as war crime 5.
àThere is a number of treaties which consider and say that rape, forced
prostitution, women trafficking and children trafficking is an offense which
is considered as a crime.
àThere came a lot of awareness which happened regarding this and the
punishment is also prescribed in many domestic and international law but
3
China, War Crimes Military Tribunal of the Ministry of National Defence, Takashi Sakai
case.
4
United States, Court of Military Appeals, John Schultz case
5
See European Parliament, Resolution on the rape of women in the former Yugoslavia;
Council of Europe, Committee of Ministers, Declaration on the Rape of Women and
Children in the Territory of Former Yugoslavia; Gulf Cooperation Council, Supreme
Council, Final Communiqué of the 13th Session).
there is no clarity regarding sentencing the convicts because the gravity of the
crime will be changing in each and every case and same punishment can be
awarded to all cases.
HISTORICAL BACKGROUND:
For many years rape is something which was totally accepted in the wars.
Women were considered as commodity and not as human beings then. They
were only the property of men and women were treated pathetically. After
many years this was considered as a crime and was prohibited. There was no
recognition of rape as a war crime in international law but that recognition
came after second world war6. In Bosnia and Rwanda, there were many such
cases happening after this incident rape was considered as war crime then.
The first step was taken by ICTY (International criminal tribunal for former
Yugoslavia.
• Many new laws were established and there were many courts
established to deal with these matters. The first step which was taken
by criminalizing and considering rape as a war crime7.
• The first case handled by ICTY (International criminal tribunal for the
former Yugoslavia) happened on May 7, 1996. The case was on
Dusko Tadid, a cafe owner and part-time karate instructor residing in
Bosnia-Herzegovina. He was liable for not following Geneva
convention and breaching it which talks about crimes against
humanity as well as violating customs of law as the accused were in
conflict with Articles 2,3,5 of International Criminal Tribunal for the
former Yugoslavia (ICTY)8
6
Ellis, Mark: Breaking the Silence: Rape as an International Crime, Case Western Reserve
Journal of International Law, Vol. 38, Issue 2 (2006-2007), p. 227.
7
de Brouwer, Anne-Marie; Ku, Charlotte; Römkens, Renée; van den Herik, Larissa:
“InterdisciplinaryApproaches to Recognizing, Investigating and Prosecuting Sexual
Violence as an International Crime”.
8
Statute of the International Criminal Tribunal for the Former Yugoslavia, U.N. SCOR,
48th Sess., R.C. Res.827, arts. 2,3, & 5, U.N. Doc. S/RES/827 (May 25, 1993) [hereinafter
ICTY Statute].
• In the case of Prosecutor v. Tadi – It is a very important case in history

as in this case the defendant was convicted with rape and violence in
sexual case. Though there was no proper evidence saying that he only
committed the crime but he was convicted because he abetted crimes
of sexual violence. This case is the proof saying that even
International courts can deal with cases of rape9 .
INTERNATIONAL ASPECT OF S.376 IPC:
For such crimes, there is a punishment in India under Section 376 of IPC, the
very same way even some international countries like Rwanda, Tokyo,
Yugoslavia, Japan, Bosnia, etc. have some mechanism in the form of tribunals
to deal with this kind of war crimes especially rape and sexual assault against
women. The following are those tribunals:
ICTY
The hostilities that occurred in the Former Yugoslavia was intense and the
crime of rape was used as a means or weapon to destroy the cultural fabric of
the Muslim population. Resolution 827 by the United Nation Security
Council (UNSC) led to the establishment of the ICTY in the year 1992. It was
set up as a resource to turn down the crime rates in Yugoslavia by punishing
the one responsible for such a commission10. The Geneva Convention has
certain grave breaches that come under the jurisdiction of this tribunal11.
Other than that other sorts of crimes12 including crime against humanity13 and
genocide14 committed in the territory of Yugoslavia since 199115 will be
9
Case No. IT-94-I-T, Judgment (May 7, 1997).
10
United Nations Security Council Resolution 827 of 25 May 1993
11
Statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY Statute),
Article 2
12
ICTY Statute, Article 3
13
ICTY Statute, Article 5
14
ICTY Statute, Article 4.
15
ICTY Statute, Article 1.
covered. The gravity of the crime rape has made it a 'crime against humanity'
under the ICTY Statute16.
ICTR
When the genocide took place in Rwanda, the crime of rape occurred on a
huge scale. The number of rape committed during that time period has been
estimated between 250000 to 50000017. Rape was used as a tool to cause mass
destruction by sexually assaulting women regardless of their age, there was
no mercy shown to anyone. Usually, women targeted were Tutsi and were
publically raped because of their ethnicity. Even some Hutu women were
raped because of their alliance with Tutsi men. The brutality can be seen
where women were made to watch their family members tortured and
murdered before being raped.
With Resolution 955, the United Nation Security Council established ICTR
in 199418. The purpose of establishing this tribunal is similar to the ICTY that
is to imprison those who has committed crimes of genocide19, crimes against
humanity20 and war crimes21 in Rwanda in 1994.
ICC
Situated in Hague, Netherlands; this is a permanent, independent and treaty-
based international criminal court that was created in 1998. During that time
120 states had adopted the Roman Statute of the International Criminal Court,
i.e., ICC Statute with a purpose to prosecute oppressors of the most serious
16
ICTY Statute, Article 5(g)
17
Bianchi, Linda: “The Prosecution of Rape and Sexual Violence: Lessons from Prosecutions
at the ICTR”. In: de Brouwer, Anne-Marie; Ku, Charlotte; Römkens, Renée; van den Herik,
Larissa (eds.): Sexual Violence as an International Crime: Interdisciplinary Approaches,
Cambridge – Antwerp – Portland, Intersentia Publishing Ltd, 2013.
18
UN Security Council Resolution 955 of 8 November 1994
19
Statute of the International Criminal Tribunal for Rwanda (ICTR Statute), Article 2.
20
ICTR Statute, Article 3.
21
ICTR Statute, Article 4.
international crimes. The ICC received its mandate 60 ratifications in 2002

and came into force22.
In the ICC Statute, rape is expressly mentioned as a crime against humanity
and a war crime. The court has recognized many of the precedents of the
ICTY and ICTR, codified it and has referred the crime of rape as the most
heinous crimes under International Law. Any crimes of genocide, a crime
against humanity23, war crimes24 and aggression will fall under the
jurisdiction of this court.
RAPE :
The International Criminal Tribunal had a definition of rape from the
Furundžija case 25in 1998 that rape required "coercion or force or threat of
force against the victim or a third person". Later on, in the case of Kunarac26
in 2001, the tribunal found that there are other factors to consider and such
considerations were taken to define rape under international law27. The ICTR
in case of Akaseyu 1998 held that rape is a form of aggression the main
elements cannot be captured from the object description and body parts. It is
a kind of physical invasion that is sexual in nature done under coercive
circumstances28.
These crimes can also act as a constituent for other war crimes under
international law. The ICTY in the Delalic case stated that rape could
constitute torture if some specific conditions are fulfilled29. The ICTR
deduced from the Akayesu and Musema case that rape can constitute
genocide if certain conditions of genocide were met.
22
http://www.icc-
cpi.int/en_menus/icc/about%20the%20court/Pages/about%20the%20court.aspx.
23
ICC Statute, Article 8(2)(b)(xxii)
24
ICC Statute, Article 7(1)(g).
25
ICTY, Furundžija case, Judgment
26
ICTY, Kunarac case, Judgment
27
ICTY, Kunarac case, Judgment
28
ICTR, Akayesu case, Judgment.
29
ICTY, Delalić case, Judgment.
All are protected under this Statute regardless of their age and gender. The
crime of sexual violence is prohibited against any human being. The crime of
forced pregnancy has not been identified yet. The ICC explained the concept
of invasion to be a gender neutral while defining rape30.
RAPE AND THE CURRENT LEGISLATION31:
With the decades that have passed, the crime of rape has developed and all
the non-existing and outdated pieces of legislation has been replaced with
updated and amended laws:
• Rape as a concept has been broadened not only to physical invasion
but harming the mental integrity of the victim. The 1977 Additional
Protocols to the 1949 Geneva Convention can be seen as an
advancement from being a mere crime against the honor and dignity
of women or property rights of male relatives.
• According to the Roman Statute of ICC, rape can be constituted as
war crime and crime against humanity based on the factual scenario
or as an act of genocide(Akayesu case 1998) or an act of torture(
Mejia case 1996).
• Oral penetration also constitutes rape. (Furundzija case 1998)
• Any slight penetration on the victim' body with a sexual organ or an
anal or genital opening with any object or other body parts can
constitute as rape(Roman Statute, Elements of crime, 2002).
• It is not solely done through physical force, any kind of penetration
committed through coercion or under coercive environment will be
considered as a crime of rape.
• Through Resolution 1820, the UNSC has described rape as a war
tactic and a threat to international security. It is a war crime and a
crime against humanity. Previously it was just considered as an act
30
Elements of Crimes for the ICC, Definition of rape as a war crime
31
https://www.wikigender.org/wiki/international-law-and-war-rape.
of forced sexual pleasure by deprived men fighting wars and

considered as an inevitable side effect of war.
Elements of Crimes 2002 defines rape as a brutal assault. It also includes
the objects that are used in the commission of such crimes. The definition
is gender neutral and includes all ages. Both the genders are oppressed
by such assault, but the number of incidents occur more with the females
than the males. The reported incidents of male victims are very minimal
due to the societal stigma and associated shame and this stops them from
seeking the required medical assistance.
GENOCIDE :
The definition of genocide is derived from the convention on the prevention
and punishment of the crime of genocide (genocide convention), 1948 and
this is accepted internationally. Genocide mainly focuses on threats that are
directed to the existence of a group32. Article 2 defines crime and also
prohibits all the attempts to destroy a group of people based on nationality,
ethnicity race and also religion33 . “Destruction of culture is not sufficient to
constitute genocide it has to be of physical destruction” according to the
international court of justice i.e ICJ. However, the ICJ court noted that all the
attacks on the cultural and religious property often occur simultaneously with
attempts to destroy a group physically34 .
There is one factor which explains the difference or distinguishes of genocide
from the mental element of mere mass killing and the mental element which
consist of the intention to destroy the targeted group35 . In Jelesic case, the
appeals chamber held that personal motive was not required but the intention
should be direct and it is necessary, even indirect intention is considered to
32
Cryer, p. 755
33
Genocide Convention, Article 2.
34
ICJ, Case concerning application of the Convention on the prevention and punishment of
the crime of genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment of 26
February 2007 (Bosnian Genocide Case), para. 344.
35
Cryer, p. 756
be insufficient36 .
Because of rape there may be a damage to women’s fertility so rape is used
to prevent births within the targeted group. Rape will cause psychological and
mental damage to most of the women which prevents them from procreation
and also society see the raped women as undesirable and this creates lot of
disturbances in their life. As our society is considered to be the male
dominated one the children’s identity is determined by the father’s religion,
race and ethnicity, because of that the perpetrator will purposefully
impregnate the women with the intention that the child should belong to the
father’s group37 . One of the important case regarding rape as a part of
genocide is Akayesu case. Initially rape was not included in the charges
towards Akayesu but when witnesses of this case spontaneously started to
testify the acts of rape then ICTR thought of investigating the matter further
38
. The investigation was initiated by the female judge named Navanethem
Pially. In this case the tribunal declared that Tutsi women were raped because
they were Tutsi. At this time rape was used as a method to destroy the ethnic
group, “Destruction of the spirit, of the will to live, and of life itself”39 was
said in the Akayesu trial judgement.
In accordance to article 2(2) of the ICTR statute, it is found that the rapes
which are committed constitutes the acts of genocide, since it is inflicted
serious bodily and mental harm to the victims of rape. In accordance to article
2(2) of the ICTR statute, it is found that the rapes which are committed
constitutes the acts of genocide, since it is inflicted serious bodily and mental
harm to the victims of rape. As long as the perpetrators intention is to destroy
the targeted group rape can constitute as an act of genocide as declared by the
36
ICTY, case No. IT-95-10-A, Prosecutor v. Goran Jelesic, Appeals Chamber Judgment of
5 July 2001, para. 49-51.
37
ICTR, case No. ICTR-96-4-T, Prosecutor v. Jean-Paul Akayesu, Trail Chamber
Judgment of 2 September 1998 (Akayesu Trail Judgment), para 507-508.
38
Ellis, p. 233
39
Akayesu Trail Judgment, para. 732.
ICTR. The tribunal also concluded that rape is one of the brutal and worst
ways of inflicting harm to the victim, since there is harm to both body and
mentally40. Genocide conviction in ICTY still did not include the female
rape41.
RAPE AS A WEAPON OF WAR OR GENOCIDE:
Actually rape as a war weapon is not considered to be the legal concept. The
ICTY and ICTR tribunals have developed the significance of rape as a
weapon of war legally. Rape is considered not only as a by product but it is
also an instrumental component to armed conflict in the sense they used it as
a weapon. Apart from these ICTY and ICTR, the UN security council also
recognized sexual violence is generally used as a weapon of war in many
conflicts related to war 42.
Ad hoc tribunals have gone too far to protect the rights of women and women
at the time of war, this is the belief of so many legal feminists .At the time of
Balkan war there were camps which were emerged among the feminists.
There were two camps in which one camp is all about being primary
Genocidal they have seen lot of rapes being committed and they mostly
focused on rapes which have been committed towards all the Muslim women
those who stays in Bosnia , they are also called as Bosnian Muslim women .
On the other side they always wanted the international community to equally
respond to the rapes which have been committed on both the sides of the
conflict 43. To the end the fact that cannot be denied is Genocidal aspects of
all these rapes which were committed especially against the Bosnian Muslim
women , they were always seen as rape victims and society identifies them as
raped women , powerless or broken . But apart from this they would consider
40
Akayesu Trail Judgment, para. 731-734
41
Engle, Karen: Feminism and Its (Dis)contents: Criminalizing Wartime Rape in Bosnia
and Herzegovina, The American Journal of International Law, Vol. 99, No. 4, 2005, p. 783.
42
UN Security Council Resolution 1820 of 19 June 2008.
43
Engle, p. 779
that all the rapes as Genocidal because of how badly they affect women as a
group. They always wanted women to be a protected group especially for the
crime of genocide .At last both the feminist groups described that women are
considered to be as victims of war44 .
As quoted by buss there are some unintended consequences in the
45
categorization of rape as a weapon of war . If people classify rape as a
weapon of war or genocide then the image of rape is considered as predictable
and it is also a natural part of armed conflict which is preserved. Due to this
there are chances that the result may be that rape is a natural thing and it is
always available as a weapon in all the armed conflicts. Women are always
portrayed as rape victims or as a raped person. In Rwanda when people were
busy recognizing rape as weapon of genocide, the rapes are actually
committed and it is diminished to that range that “Hutu men are raping Tutsi
women”. Many women who were the victims of rape may be exclude from
the justice system just by using the term “rape as weapon of genocide”. Tutsi
women are not included in the women who have suffered during the Rwandan
genocide and were even excluded from the international legal system. By
focusing so much on the broader context and rape as weapon of war/genocide,
this may also draw attention from the individual act of rape46 .
CONCLUSION
Ad hoc tribunals first recognized that rape as a war crime and it is significant
for the approach or thoughts of the people regarding rape at the time of war.
During armed conflicts international courts and tribunals declared that rape
has been classified into one of the most serious offences, brutal crimes of war
and it also made important advancements to end the exemption of punishment
44
Engle, p. 795-796
45
Buss, p. 151
46
Buss, pp. 155-158
for the offenders for rape related offences. After that so many criminals are
convicted for rape as it is a crime against humanity or crime against genocide
and the tribunals, ICTR and ICTY have made it clear that rape was once used
a weapon of war.
However, according to buss this concept may work as counterproductive as
it will exclude some victims from the justice system. Since all the focus is on
the rapes in the broader context it may grab the attention from the individual
act of rape which could have consequences unintentionally. I believe that the
concept is important because it draws the attention of many people towards
the problem, but the courts and tribunals must use it carefully keeping
consequences in their mind. Using rape as a weapon of war is very difficult
and complex and it is insufficient to examine this problem solely from a
judicial perspective. It is very important to discuss this issue to understand
more about this topic.
In International law the definition of rape is developed by the ad hoc tribunals.
The definition of rape is so close to the common law understanding of rape
and to prove rape it requires to the proof of no consent or coercive
circumstances. The question of non-consent is always a debated topic and
different legal scholars have different opinion on this issue. The international
law definition of rape is non – consensual sexual intercourse and it is also
suitable for prosecuting rape as genocide or crimes against humanity. Thus,
it is justifiable to give a strict liability for the criminals who have committed
rape with non-consent of the women and especially when the victim is a
minor or mentally disabled. The international criminal court has made an
important acknowledgement while stating that some people are incapable of
giving consent.
Usually the women who has been raped is very ill treated by the society, it is
important to not see women as victims or treat them badly and powerless or
broken. Instead of that women should be given a chance in decision making,
in the legal system and keep peace in them. To prevent the use of rape as
weapon of war or at the time of the conflict, women should be given more
power instead of making them as the victims of rape. It is important to
prosecute all the criminals who commit rape at the time of conflicts or
wartime to clarify them that wartime rape is not a rule and it is changed and
removed. Now, whosoever commits rape at the time of war or uses rape as a
weapon of war are strictly punished.
At the end of the day, all the nations in this world should face the cruel reality
of our present situation. I feel that with the efficient and effective use of
international humanitarian law and other laws related to rape and a continued
determination by all the individuals to create awareness and ensure to protect
women from these evil acts of people, we can actually guide the course of
history and permanently provide solution for this problem like equal status
for women along with men and equal punishments for the crimes which are
committed against women.

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International Journal of Socio-Legal Research 1

Volume 5| Issue 3|August 2019 |ISSN-2393-8250

SURROGACY VIS-À-VIS SURROGACY REGULATION

THE ARRANGEMENT OF SURROGACY IN INDIA

*Student, Jamia Millia Islamia, New Delhi

In accordance to the Director-General, ICMR, Soumya Swaminathan, the

Due to controversy with intended parent(s) abandoning their children in India,

The Law Commission of India submitted the 228th report on Assisted

THE SURROGACY REGULATION BILL, 2016

In view of the article ‘The Surrogacy (Regulation) Bill, 2016’, economically,

clinics became an important factor. There was also a contract to be signed

The concept of surrogacy is not backlashed by religious barriers because there

be accepting and adopting this medical technique throughout lands and

UNCITRAL: THE BASICS OF INTERNATIONAL TRADE

*Student, Amity Law School, Delhi

law of international trade;

elimination of discrimination in laws affecting international trade, agency,

• Legislative guides and recommendations

UNCITRAL has provided for a standard or uniform clause or set of

• Practice and other information guides

Border Insolvency Cooperation and The UNCITRAL Model Law on

iii) Arbitration Rules

purpose of these commercial terms is to prevent confusion in foreign trade

• (DAP) Delivered at Place: It means the delivery is done when the

b) RULES FOR SEA AND INLAND WATERWAY TRANSPORT

• Coordinating the work of active organizations and encouraging

How does harmonization happen?

IMPACT OF RERA ON INDIAN REAL ESTATE

1. To seek the transparency in project making and its execution and

2. To bestow much needed security to innocent home buyers against the

shark lobby of builders

and to establish the Appellate Tribunal.

II. APPLICABILITY AND REGISTRATION:

registration number login ID and a password for them to publicize their

Revocation cannot take place unless a notice in writing is given to the

III. OBLIGATION AND DUTIES OF PROMOTER:

IV. RIGHTS AND DUTIES OF ALLOTTEES:

V. IMPORTANT PENALTIES AND COMPENSATION:

1. If a promoter violating or not complying to any orders or direction given

2. Section 60, speaks that if a promoter falsely furnishes information and

3. Is a promoter contravenes section 9 or 10 that is non-registration then the

5. Section 67 and 68 of the Act deals with an allottee failing to comply or

DATE RAPE DRUGS- A CHALLENGE AND SUBSTANCE

1.2 DEFINING DATE RAPE DRUGS-

2. Ketamine- Ketamine is a dissociative anesthetic, it is a medication

3. GHB- Gamma hydroxybutyric acid is a liquid with no odor or color,

1. Awareness about date rape and

2. Nature of date rape.

3. People most vulnerable to date

4. Ketamine, a date rape drug be

5. Only limited medical stores

6. Aadhar cards be linked with the

others might take advantage of

9. The punishments under 14%

Narcotics Drugs and

10. The restrictions should be 54%

imposed in the imports of date

Aadhar card to be linked with bill given

Only limited medical stores should sell

Ketamine a date rape drug be banned

Capital punishment given to the…

youths under NDPS Act be omitted.

a.Youths are equally guilty as drug… 42%